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19-099 Cupertino City Center Owners Association, License Agreement DocuSign Envelope ID:A8EFOBA3-0016-4D79-9910-5652E06431 B6 LICENSE AGREEMENT THIS LICENSE AGREEMENT(this "Agreement")is made and entered into as of the 10 day of June 2019, by and between CUPERTINO CITY CENTER OWNERS ASSOCIATION, a California non- profit corporation ("Licensor"), and City of Cupertino ("Licensee:"). 3 RECITALS: A. Licensor is the owner of certain real property located at the corners of Stevens Creek and i DeAnza Boulevards, Cupertino,California(the"Licensor Property"). B. Licensee is planning to hold an event(the"Licensee Event")which desire to use a portion of the Licensor Property for the purpose of a Summer Event. C. Licensor and Licensee now desire to enter into this Agreement to provide for the grant by Licensor to Licensee of a revocable, exclusive, temporary license for the use of a portion of the Licensor Property for the limited purpose of the Licensee Event,all as more particularly provided in this Agreement. NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. (a)Licensor grants to Licensee a revocable,exclusive,temporary license (the "License") to use that certain portion of the Licensor Property shown as cross-hatched on Exhibit A attached hereto and incorporated herein by this reference(the"License Area"),for the purpose of the Licensee Event.The Licensee Event is on Saturday,July 20,2019,between 3:00 PM and 10:30 PM.Either party may terminate this Agreement at any time upon giving not less than thirty(30)days prior written notice to the other party. No storage of any equipment or materials shall be permitted on the Licensor Property and no use of the Licensor Property may be made other than as herein set forth.Licensor agrees to allow attendees of Licensee event to park on-site at Cupertino City Center Garage from 3:00 PM to 10:00 PM. Licensor will reserve the pull-off parking space on the north side of the License Area as parking for a food vendor. Licensor will reserve three parking spaces on the south side of the License Area as parking for technical support vehicles. Licensor agrees not to water, sprinkle, or otherwise irrigate the License Area for at least forty-eight (48) hours prior to the start of the Licensee Event. (b) In consideration of the grant of the License, upon execution of this Agreement, Licensee shall pay to Licensor the sum of One dollar and zero cents($1.00). (c) Licensee acknowledges and agrees that Licensor is not making any representation or warranty about the Licensor Property.Licensee acknowledges and agrees that the License Area is to be accepted"AS IS,"in the broadest sense of the term, and,Licensee acknowledges and agrees that Licensor I is not providing any security,Licensor does not make any representation that the License Area is fit for the intended use,the Licensor does not make any representation regarding the License Area's compliance with applicable laws or other governmental requirements. Licensee, on behalf of itself its officers, officials, agents, employees and volunteers, assignees and successors in interest, hereby waives, relinquishes, releases and discharges the Licensor,and each and every person,firm or corporation,now a general and/or limited partner of Licensor, and their respective heirs, devisees, legatees, executors from and against any and all liabilities,obligations,fines,penalties,claims,demands, suits,judgments,actions,causes of action, j damages,costs,losses and expenses(including,without limitation,attorney's fees,expert witness fees,and court costs), directly or indirectly arising by reason of, in connection with, on account of or pertaining to any of the foregoing, except for that caused by the sole and active negligence or willful misconduct of Licensor. (d) Other than temporary signage Licensee shall make no alterations, improvements -1- DocuSign Envelope ID:A8EF0BA3-0016-4D79-9910-5652E0643136 or modifications to the Licensor Property. (e) Upon termination of this Agreement, Licensee shall return the License Area and any other affected area of the Licensor Property to the condition existing prior to the use thereof by Licensee. Licensee shall provide the necessary amount of garbage, recycling, and compost containers for the Licensee Event, and Licensee shall conduct clean-up after the Licensee Event, including removal of these containers. 2. (a) Licensee shall to the fullest extent permitted by law,indemnify,defend with counsel reasonably acceptable to Licensor, and hold harmless Licensor, Prometheus Real Estate Group, Inc., a California corporation, Seagate Technology, LLC, a Delaware limited liability company, Cupertino City Center Buildings, a California limited partnership (and its general partner, Prom XX, Inc., a California corporation), Cupertino City Center Apartments, a California limited partnership (and its general partner, f Prom CCC,LLC,a California limited liability company),Cupertino City Center Apartments,H,a California limited partnership(and its general partner,Sunset Ridge Development Co.,Inc., a California corporation), Cupertino City Center Owners Association, a California non-profit corporation,Montebello Homes,LLC, a California limited liability company, Montebello Piazza, LLC, a California limited liability company, Verona Owners Association, Stevens Creek Commercial,LLC, a California limited liability company,and Cupertino Hotel Associates, dba Cypress Hotel and each of their respective employees, agents, partners, members, officers, directors and shareholders from and against any and all claims, damages, losses, liabilities,actions,penalties,judgments,and costs and/or expenses(including,without limitation,attorney's fees and costs) (collectively, "Claims"), including, without limitation, Claims for property damage or personal injury (including, without limitation, death), arising out of (a) Licensee's use of the Licensor Property or any part thereof, or any act or negligence in or about the Licensor Property by Licensee or Licensee's employees, agents, contractors or invitees, (b) any activity, or work, permitted at or about the Licensor Property,or any part thereof,in connection with Licensee's Event, or(c)any breach or default in the performance of any obligation to be performed by Licensee under the terms of this Agreement. i I (b) Licensee as a material part of the consideration to Licensor hereby assumes all risk of damage or loss to property or injury or death to person in, upon or about all portion of the Licensor Property resulting from Licensee's Event, except to the extent caused by the sole negligence or willful misconduct of Licensor and not covered by the insurance required to be maintained by Licensee pursuant to this Agreement (or which would not have been so covered had Licensee maintained the insurance required to be maintained by Licensee pursuant to this Agreement).Except to the extent caused by the sole negligence or willful misconduct of Licensor and not covered by the insurance required to be maintained by Licensee pursuant to this Agreement(or which would not have been so covered had Licensee maintained the insurance required to be maintained by Licensee pursuant to this Agreement), Licensor shall not be liable for Licensee's Event or for any damage or loss to property occurring on or about the Licensor Property nor for loss or damage to any property by theft or otherwise, nor for any injury or death or damage of loss to persons or property resulting from any accident,casualty or conditions occurring in or about any portion of the Licensor Property, or to any equipment, appliances or fixtures therein, resulting from Licensee's event. Licensee shall give prompt written notice to Licensor in case of fire or accidents on the Licensor Property. (c) If, by reason of any act or omission of Licensee or Licensee's employees, agents, contractors or invitees, Licensor is made a party defendant to any litigation related to this Agreement, Licensee shall indemnify;hold harmless and defend with counsel acceptable to Licensor from and against any and all Claims incurred by (or threatened against) Licensor as a party defendant, including without limitation all damages,costs and expenses(including,without limitation attorney's fees and expenses). (d) The obligations of Licensee under this Section 2 shall survive the termination of this Agreement and shall continue in effect until any or all Claims indemnified against are fully and finally j barred by the applicable statute of limitations. 2 DocuSign Envelope ID:A8EFOBA3-CO16-4D79-9910-5652EO6431B6 3. (a) Licensee shall, at Licensee's expense,obtain and keep in force during the term of this Agreement, a policy of commercial general liability insurance, including the broad form endorsement, insuring against any liability arising out of the use of the License Area. Such insurance shall provide combined single limit liability coverage of not less than Two Million Dollars ($2,000,000.00) per occurrence for bodily injury or death,personal injury and property damage. Such insurance shall include Licensor and the beneficiary under any deed of trust encumbering the Licensor Property each as an additional insured,and shall provide that each such additional insured may recover for any loss suffered by it by reason of the negligence of Licensee or Licensee's employees,agents,contractors or invitees.All such insurance shall specifically insure Licensee's performance of the indemnity and hold harmless agreements contained in Section 2 above although Licensee's obligations pursuant to Section 2 shall not be limited to the amount of any insurance required of or carried by Licensee under this Agreement and Licensee is responsible for ensuring that the amount of liability insurance carried by Licensee is sufficient for Licensee's purposes. Licensee may carry said insurance under blanket policy so long as the coverage afforded thereunder is not diminished thereby. (b) If Licensee fails to procure and maintain any insurance required to be procured and i maintained by Licensee pursuant to this Agreement,Licensor may,but shall not be required,to immediately terminate this Agreement. Any insurance required to be maintained by Licensee hereunder shall be in companies rated A;X or better in the most recently published`Bests Insurance Guides."Prior to use of the License Area, Licensee shall deliver to Licensor copies of the policies of insurance required to be kept by Licensee hereunder, or certificates evidencing the existence and amount of such insurance, with evidence j satisfactory to Licensor of payment of premiums. No policy shall be cancelable or subject to reduction of u coverage except after thirty(30)days prior written notice to Licensor. Licensor acknowledges that Licensee is self-insured and that this self-insurance satisfies the requirements of paragraph 3,to the extent they apply to a public agency. 4. Licensee shall keep the Licensor Property free from any and all mechanics,materialmen's and other liens, and claims thereof, arising out of the use of the Licensor Property. Licensor shall have the right, at all times, to post and keep posted on the Licensor Property, any notices permitted or required by law,or which Licensor shall deem proper,for the protection of Licensor,from mechanics and materialmen's liens,including without a limitation a notice of non-responsibility. Should any claims of lien relating to use of the Licensor Property by Licensee be filed against, or any action be commenced affecting the Licensor Property or Licensor,Licensee shall give Licensor notice of such lien or action within three(3) days after it receives notice of the filing of the lien or the commencement of action.If Licensee does not,within twenty (20)days following the imposition of any such lien,cause such lien to be released of record by payment or posting of a proper bond,then Licensor shall have,in addition to all other remedies provided herein and by law,the right,but not the obligation,to cause the same to be released by such means as it shall deem proper, including by payment of the claim giving rise to such lien or by posting a proper bond, or by requiring Licensee to post for Licensor's benefit a bond, surety, or cash amount equal to one hundred fifty percent (150%) of the amount of lien and sufficient to release the Licensor Property from the lien. All sums paid by Licensor pursuant to this Section and all I I -3- DocuSign Envelope ID:A8EFOBA3-0016-4D79-9910-5652E06431 36 expenses incurred by it in connection therewith including attorney's fees and costs shall be payable to Licensor by Licensee on demand. 5. In the event any party to this Agreement shall institute any action or proceeding against the other party relating to this Agreement, the unsuccessful party in such action or proceeding shall reimburse the successful party for its disbursements incurred in connection therewith and for its reasonable attorneys' fees and costs as fixed by the court. In addition to the foregoing award of attorneys' fees to the successful party,the successful party in any lawsuit on this Agreement shall be entitled to its attorneys' fees and costs incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 6. Licensee agrees that this Agreement shall not be assignable and Licensee shall not assign this Agreement or grant a license or sublicense regarding the Licensor Property or any portion thereof without the prior written consent of Licensor which consent may be granted or withheld in Licensor's sole and absolute discretion. 7. All notices required under this Agreement to be given to Licensee, and all approvals and other communications required or permitted to be given hereunder,must be in writing and sent b personal Y delivery, reputable overnight courier providing receipt of delivery (such as Fedex),facsimile transmission g or certified U.S. mail return receipt requested, which transmission is to be confirmed by telephone. All notices shall be sent to the following parties: If to Licensee: City of Cupertino 10185 N. Stelling Road Cupertino,CA 95014 Attn: Christine Hanel Phone Number: (408)777-3139 Fax Number: (408)777-3333 If to Licensor: c/o Prometheus Real Estate Group,Inc. 1900 South Norfolk Street,Suite 150 San Mateo,California 94403 j Attn: Chief Financial Officer Phone Number: (650)931-3400 Fax Number: (650) 931-3600 With concurrent copy to: Prometheus Real Estate Group, Inc. j 20400 Stevens Creek Boulevard, Suite 130 Cupertino,California 95014 Attn: Senior Portfolio Manager Phone Number: (408) 873-0121 Fax Number: (408) 873-0122 1 -4- DocuSign Envelope ID:A8EF0BA3-0016-4D79-9910-5652E06431 B6 8. This Agreement shall be governed by the laws of the state of California, with jurisdiction and venue to be in the county where the Licensor Property is located. 9. This Agreement may be executed in any number of counterparts,each of which shall be deemed to be an original,but any number of which shall be deemed to be one and the same instrument. I a d IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first written above. I LICENSOR: LICENSEE: j CUPERTINO CITY CENTER Owners Association, CITY OF CUPERTINO a California non-profit corporation A /rJ/f,11' A14. By: PROMETHEUS REAL ESTATE By: i GROUP,INC., a California Print Name: Chnstine Hanel Corporation, agent for owner Its: Assistant Director Parks and Recreation Department DocuSigned by: f r6V, W SM6W Sit By: APPROVED AS TO FORM Eron Kosmowski Print Name: Its: Vice Presdi ent of Finance BY: Print Name: Heather Minner Its: City Attorney ATr>Gs-r �i` CKAoE Sc-mmoT -5- DocuSign Envelope ID:A8EFOBA3-0016-4D79-9910-5652EO6431B6 City Center Amphitheater 20350 Stevens Creek Blvd . Note: Requires confirmation of parking in lot. Cali Avenue road closure RW c7 , (Prometheus) a' £ PC Restrooms placed ' center, `,' v ' ; near the bushes, pointing toward stairs. L KEY r 2 Sc 1�.�► 30ft.-wide movieJ. SCRE[1VTl n a,,�; '1-� .).<-�I • screen ,. Projector and soundboard k + Portable restrooms Food truckUA Speakers © i= Popcorn pC Trash Rock climbing wall i Rw DocuSign Envelope ID:A8EFOBA3-0016-4D79-9910-5652E0643186 Discussion with City Center Amphitheater • Date and scale of event • Saturday, July 20th, 2019 from approximately 6-10:30pm Formal address and wayfinding • The official address for marketing will be 20350 Stevens Creek Blvd. Please confirm. • We will need A-frames on Stevens Creek Blvd and Torre Ave to guide vehicles toward the parking garage. We will discuss a signage plan later. Prometheus can recommend banner sites. • Marketing • City will include this event in all marketing materials. We will also produce doorhangers as a notification to all neighbors. Please tell us how many to print. • Electricity sources • City will provide generators for all power needs. • Parking plan i • Prometheus will allow attendee parking on the night of the event(this will include a formal 1 amendment to the existing contractl. • Reserved parking spaces adjacent to the park • Prometheus will reserve the pull-off on the north side of the park for food vendor. • Also, set aside 3 spaces on the south edge of park for tech vehicles. i • Portable restrooms • At least 2. City will reserve and pay for these. Location noted on map. • Additional garbage/recycling/compost containers • City will provide additional containers. We will also manage clean-up during and following the event, including carrying out trash. • Evening security and/or grounds crew • This is optional for Prometheus. The City will have staff on site. • VERY IMPORTANT — Irrigation • Prometheus will ensure no watering 48 hrs before the event • Securing the screen • We can use cinder blocks to secure the screen. Water barrels are preferable,but not required. 1119130.1