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14-035 Main Street Cupertino Aggregator, LLC Joint Use and Mainenance AgreementNO FEE FOR RECORDING GOVT. CODE SECTION 27383 WHEN RECORDED RETURN TO:. City of Cupertino Community Development Department 10300 Torre Avenue Cupertino, CA 95014 SPACE ABOVE FOR RECORDER'S USE ONLY )� REQI NA, ALCOMENDRAS, SANTA CLARA COUNTY RECORDER Recorded at the request of City Pages: 14 Fees.. * No Fees Taxes .. Copies. AMT PAID RDE 4 006 7/21/2014 3:04 -PM AGREEMENT FOR JOINT USE AND MAINTENANCE BETWEEN CITY OF CUPERTINO AND MAIN STREET CUPERTINO AGGREGATOR, LLC FOR MAIN STREET PARK AND MAIN STREET TOWN SQUARE This Joint Use Agreement for Main Street Park and Cupertino Main Street Town Square (the "Agreement") is entered into on P e 6 , 13 , 2014, by and between the City of Cupertino, a California municipal corporation ("City"), and Main Street Cupertino Aggregator, LLC, a Delaware limited liability company ("Owner"). City and Owner are referred to collectively herein as "the Parties." RECITALS The following recitals are a material term of this Agreement. A. Owner is the developer of real property and improvements located within the City of Cupertino, County of Santa Clara, State of California (collectively the "Property"), described as Parcels 1, 2, 3, 4, and 5 and Common Area Parcel A as shown on the Final Map of Main Street Cupertino"), recorded in the Official Records of Office of the Recorder Santa Clara County, California on SwW -,:2-1 2014 in Book EE- of Maps at Pages !9- to tO , as Document No. I, (the "Map"). The Property is a mixed use development commonly referred to as "Main Street Cupertino," a complex including office, residential, and retail components (the "Project"), including two publicly accessible but privately owned areas located on Parcel 1 of the Property: (1) an approximately 0.75 acre park area established for passive public use and limited private and City use for defined Special Events ("Main Street Park") and (2) an open square established for joint public and private use ("Town Square"). B. On September 4, 2012, by Resolution No. 12-098(M), City approved the planned development of the Property as the "Development Property" with a Modification (M-2012-03) to the City Master Use Permit (U-2008-01 and U-2011-09) (collectively "Use Permit") for development of a mixed-use project consisting of retail, hotel, office and live work rental loft housing on the Development Property in addition to Architectural and Site Approval (ASA -2012- 10) and modifications.to-a previously approved Tentative Subdivision Map (TM -2012-04). 1 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 2714 F.docx Resolution No. 12-098(M) contained a condition of approval that provided for the following requirements: The making of a Joint Use Agreement between the City and the Owner that permits the City to use the town square and park area of the Development Property for public use, for community events, or other similar city approved events or activities, such as, but not limited to, farmers markets, holiday activities and summer events (the "Joint Use Agreement"). The Joint Use Agreement shall govern public use, programming, public access and percentage of time available for allowed public activities and events for which the Town Square and Main Street Park may be used. The Joint Use Agreement shall provide for publicly available restroom facilities during normal business hours. No structures shall be constructed in the Town Square area without prior City approval. Programming provisions of the Joint Use Agreement are to be administered between the Owner and the Parks and Recreation Department of the City. C. The Development Property is subject to the Main Street Cupertino Declaration of Covenants, Restrictions and Common Easements Areas, recorded by Owner on the Development Property on Tkt 21 , 2014, as Instrument No. 2Z65746ly- (the "Center Declaration") and inclu es the following parcels, among others, as further described in the Center Declaration: (i) Parcel 1 - as the "Retail Parcel"; (ii) Parcel 2 and Parcel 3 - as the "Office Parcels"; (iii) Parcel 4 - as the "Hotel Parcel"; and (iv) Parcel 5 - as the "Loft Apartments Parcel." The Development Property includes the Town Square that is described in the Center Declaration as "Town Center Square," meaning that a portion of Parcel 1 (the Retail Parcel) is designated on the Map as "Town Center Square." The Development Property includes the "Main Street Park", which is described in the Center Declaration as the "City Park" located in the "City Park Easement," meaning that portion of Parcel 1 that is designated on the Map as the City Park. D. City and Owner make the following Joint Use Agreement in satisfaction of the above stated Conditions of Approval. E. On 1 cy&\ ---? 2014 , Owner executed an easement agreement granting City certain joint use rights to use Main Street Park for public park purposes (the "Park Easement"), certain joint use rights to the Town Square, as well as conditions, covenants and restrictions governing the Project (the "CC&R's"). NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in consideration of the covenants and conditions of this Agreement, the Parties hereby agree as follows: 1. Scope of Joint Use Agreement. This Joint Use Agreement covers and pertains to those portions of the Development Property that are shown and identified on the Final Subdivision Map for the Development Property recorded in the Official Records of Santa Clara County on jruC�/ 2/ , 2014, as Document No. 2x65745/ , in Book !�L#- of Maps, at Pages 4 - /o (the "Final Map") as: (a) the "Town Square"; and (b) the "Park". 2. Use of Main Street Park. Subject to the terms and conditions of this Agreement, the Easement, and the CC&R's, Main Street Park shall be open to the general public for City park use during such times and under such condition and requirements as are established pursuant to this Agreement and for use by the Owner and by the Main Street Cupertino Center Association, a California nonprofit mutual benefit corporation (the "Center Association") for Special Events during such times and under such condition and requirements as are established pursuant to this Agreement and by City for "City Special Events" during such times and under such condition and requirements as are established pursuant to this Agreement. 2 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 2714 F.docx a. Use of Main Street Park. Public use of the Main Street Park shall be subject to such closing hours as the City may impose and use by the Owner for Special Events pursuant to this Agreement. L Use of the Main Street Park shall be subject to the following criteria: 1) Use as a park area by the public for passive uses by the public; 2) Use by City for City sponsored City-wide type of events open to the general public for public events ("City Special Events") scheduled as provided in this Agreement. 3) Use by the Center Association or Owner as reserved for Special Events for that Owner or the Association scheduled as provided in this Agreement. ii. The Main Street Park's use shall be programmed by the Park and Recreations Director ("Parks Director") and the Association as set forth in this Agreement. iii. The use of the Main Street Park shall be limited to passive activities and enjoyment by the general public, such as walking, sitting, relaxing and the like, as well as for City Special Events and Special Events that may be conducted under the auspices of the City and/or Owner or the Center Association as provided in this Joint Use Agreement. The Main Street Park is not intended for use by the general public for sports activities or other such activities or events. Appropriate uses of the Main Street Park shall be determined by the City, the Owner and the Center Association pursuant to this Agreement. b. City and Owner Contacts. City and Owner shall each designate one person to be the point of contact for issues related to the Main Street Park. C. Park Improvement Installation. Owner shall install the improvements within the Park in accordance with the general design of improvements approved by City as part of the Use Permit at the sole cost and expense of Owner, including landscaping, hardscape and irrigation systems. d. Park Maintenance. Main Street Park shall be maintained by Owner at its sole cost and expense, or, upon its formation, by the Main Street Cupertino Center Association, a California nonprofit mutual benefit corporation (the "Center Association"), as provided in the Center Declaration. Main Street Park shall be maintained to the same level of maintenance as a first class city park similar to the level of maintenance conducted upon other City neighborhood parks. Such maintenance shall include general clean up as well as maintenance of landscaping and hardscape within the park. If Owner, the Center Association or the City conducts or authorizes Special Events in the park, the party conducting or authorizing such special event shall be responsible for cleaning up or causing the clean up after such Special Event and for repairing or causing the repair of any damage caused by the conduct of such Special Event. e. Electrical Power. After installation of the Project's initial improvements pursuant to the Project Plans approved by the City, following written approval by the Director of Community Development, Owner and the Center Association may install additional electrical power to the Park, as determined as necessary for use of the Park. Owner and the Center Association, in collaboration with City, shall mutually prepare use guidelines and restrictions regarding the use of the park, pertaining to limiting and prohibiting improper uses, such as over -night use, amplified sounds or music, animals, traffic, congestion, waste, security issues, interference with neighboring properties, and other such matters. These use guidelines and restrictions shall be similar to those in other City neighborhood parks. 3 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 27 14 F.docx f. Special Events Permitted in Main Street Park. The Main Street Park shall be open and available to the Owner and the Center Association as specified in the provisions of subsections 2.g and 2.h., below, and expressly subject to and including the City's rights of first refusal of selection of dates for City Special Events set forth in subsection 2.h, for the use by the restaurant tenants of the Owner of Parcel 1, as the "Retail Parcel" ("Retail Owner") as detailed as authorized "Special Events" in subsection 2.g, below. g. Limitations upon Special Events for Main Street Park. The Retail Owner and the Center Association shall have the right to conduct Special Events by and through restaurant tenants of the Retail Owner as "Event Sponsors", to conduct Special Events in the Main Street Park on weekdays and on weekends, subject to the limitation that these Special Events shall not occupy the Main Street Park for more than 50% of the weekends during each year. The Special Events shall not include sale of merchandise by any such restaurant tenants or by any retail tenants of the Owner. The Special Events shall not include amplified music or sound. The Special Events shall be conducted only between the hours of dawn to dusk. The Owner and the Center Association shall have the right to schedule such Special Events in the Main Street Park by making arrangements with the City's Parks Director, subject to the City rights of first refusal for selection of dates as stated in subsection 2.11, below. The Owner and the Center Association shall provide the City's Parks Director with a monthly list of Special Events no later than the first day of the month preceding the event. The Owner and the Center Association shall provide a minimum of thirty (30) days for events requiring Fire or Building Division review, and fifteen (15) days prior notice for all other Special Events. The City's Parks Director shall ensure that no conflicting uses of the Main Street Park are allowed or approved during a Special Event. City and Owner agree to make all reasonable efforts to coordinate in scheduling Special Events. The Owner and Center Association shall designate one person as point of contact with the City for the Special Event scheduling and shall not have individual restaurant tenants contact the City. h. Scheduling of City Special Events for Main Street Park. The City and Center Association representatives shall meet annually to determine the calendar for City Special Events for the Park. The City shall have right to select no more than six (6) dates for such City Special Events. The City shall have the first right of refusal for selection of these six (6) dates for such City Special Events. Scheduling of additional Special Events by the City shall require approval by the Retail Owner and the Center Association, which not be unreasonably withheld. The Center Association shall ensure that no conflicting uses of the Main Street Park are allowed or approved during a City Special Event. City and Owner and Center Association agree to make all reasonable efforts to coordinate in scheduling City Special Events. L City Special Events shall be open to the general public and may include events or a fundraisers for a 501(c)(3) organization. ii. City shall not permit food trucks to participate in City Special Events. iii. Such City Special Events may be held on weekends or legally recognized Holidays. iv. The City may require that an event sponsor reimburse the City for any costs incurred by the City for a City Special Event. v. The City shall be responsible for any costs of repair of damage that occurs to the Main Street Park from the City Special Events and the costs of clean up which result from the City Special Events. vi. The organizers/operators of any City Event shall be responsible for obtaining reasonable levels of liability insurance, providing any required temporary toilet facilities and security and for cleanup for the event. 4 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 27 14 F.docx L Rental Fees, Costs and Insurance. Neither the Owner nor the Association shall charge the City a rental or usage fee for Special Events in the Main Street Park. However the City, or an Event Sponsor for a City Special Event, shall be responsible for the costs and expenses for cleanup of the Main Street Park incurred resulting from the Special Event. The Owner or the Center Association may charge reasonable fees to a retail tenant that is an Event Sponsor arranging for a Special Event through the Owner or the Association for its conducting of a Special Event in Main Street Park, which fees would be calculated to cover the actual costs and expenses incurred by the Owner or the Association for handling the Special Event and shall be allocated and applied to the Common Area Costs of the Owner or the Center Association. In addition, the Event Sponsor of a Special Event arranged through the Retail Owner or the Association shall be responsible to pay the costs and reasonable expenses incurred by the Retail Owner or the Association as a result of its Special Event, including, but not limited to, maintenance and repairs related to the event, security, insurance requirements, and the sponsor's proportionate share of utilities and other costs. City and Owner have the right to specify such requirements and related costs and to require a reasonable deposit from the Event Sponsor based on those cost estimates in advance of the Special Event. j. Dogs and Pets. Dogs and other pets shall not be permitted in the Main Street Park except in accordance with rules and regulations, consistent with City ordinances governing park use, adopted by Owner or the Center Association that are approved by the City. 3. Town Square Joint Use: Subject to the terms and conditions of this Agreement and the CC&R's, City shall have a non-exclusive right to use Town Square for community events and other similar City -approved special events, as defined below, subject to the following programming requirements: a. Special Events Permitted in Town Square. Town Square shall be open periodically to the City, and nonprofit and for-profit organizations ("City Event Sponsors") with approval of the City for the purpose of conducting community events and activities, including, but not limited to, farmers' markets, arts and craft fairs, holiday activities and seasonal events (collectively referred to as "City Special Events"). The City shall not permit food trucks to participate in City Special Events. b. Scheduling of Special Events. Owner shall have the right to program Town Square, subject to City's right to reserve all or a portion of Town Square for City Special Events. City shall provide Owner with a minimum of thirty (30) calendar days' notice of a City Special Event. Owner shall ensure that no conflicting uses of Town Square are allowed or approved during a City Special Event. City and Owner agree to make all reasonable efforts to coordinate in scheduling Special Events and City Special Events. c. Rental Fees, Costs and Insurance. No rental or usage fee shall be charged to the City for City Special Events in the Town Square, provided however that the City or an Event Sponsor for a City Special Event shall be responsible for the costs and expenses incurred for operations of the Town Square resulting from the City Special Event, which shall be limited to any costs of repair of damage that occurs to the Town Square from the City Special Events and the costs of clean up which result from the City Special Events. The Owner or the Association may charge reasonable fees to an Event Sponsor arranging for a Special Event through the Owner or the Association for its conducting of a Special Event in Town Square, which fees would cover the actual costs and expenses incurred by the Owner or the Association for handling the Special Event and shall be allocated and applied to the Common Area Costs of the Owner or the Center Association. The Event Sponsor shall be responsible to pay the full cost of all reasonable expenses incurred as a result of its Special Event, including, but not limited to, maintenance and repairs related to the event, security, insurance requirements, and the sponsor's proportionate share of utilities and other costs. City and Owner have the right to specify such requirements and related costs and to require a reasonable deposit from the Event Sponsor based on those cost estimates in advance of the Special Event. 5 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 2714 F.docx d. City and Owner Contacts. City and Owner shall each designate one person to be the point of contact for issues related to the Town Center. e. Town Square Improvement Installation. Owner shall install the improvements within the Town Square in accordance with the general design of improvements approved by City as part of the Use Permit at the sole cost and expense of Owner, including landscaping, hardscape and irrigation systems. f. Town Square Maintenance. Town Square shall be maintained by Owner at its sole cost and expense, or, upon its formation, by the Center Association, as provided in the Center Declaration. Such maintenance shall include general clean up as well as maintenance of landscaping and hardscape within the Town Square. If Owner, the Center Association or the City conducts or authorizes Special Events in the Town Square, the party conducting or authorizing such special event shall be responsible for cleaning up or causing the clean up after such Special Event and for repairing or causing the repair of any damage caused by the conduct of such Special Event. 4. Use and Operations of Town Square: a. Owner shall improve the Town Square for the Development Property, with such improvements to be in accordance with the development plans for the Town Square, as approved by City as part of, and pursuant to, the provisions of the Use Permit and all other development approvals. b. The Town Square area shall be available for the use as part of the Retail Component of the Development Property (i.e., the retail improvements within the Retail Parcel), and shall also be available for use by City, Owner and the Center Association for special functions and occasions and for community events, or other similar City -approved events or activities, such as, but not limited to, Special Events subject to and in accordance with the provisions of this Joint Use Agreement. C. It is understood that the principal use and benefit of the Town Square is for passive activities and enjoyment, such as walking, sitting, relaxing and the like, as well as for Special Events that may be conducted under the auspices of the City and/or Owner or the Center Association as provided in this Joint Use Agreement. The Town Square is not intended for use by the general public for sports activities, gatherings or other such activities or events. d. Dogs and other pets shall not be permitted in the Town Square except in accordance with rules and regulations adopted by Owner or the Center Association. e. The Town Square shall be operated and maintained by Owner, or, upon its formation, the Center Association as provided in the Center Declaration, at the cost and expense of Owner or, upon its formation at the cost and expense of the Center Association, with no contribution from City except as provided herein for Special Events. Such maintenance shall include general clean up as well as maintenance of landscaping and hardscape within the Town Square. If Owner, the Center Association or City conducts or authorizes Special Events in the Town Square, the party conducting the Special Event shall be responsible for cleaning up or causing the cleanup of the Town Square after such event and for repairing or causing the repair of any damage caused by the conduct of such event. Owner and/or the Center Association shall also be entitled to make use of the Town Square for special functions and occasions and for community events, or other similar Special Events or activities approved or sanctioned by Owner and/or the Center Association, such as, but not limited to, farmers markets, holiday activities and summer events, subject to the provisions of this Joint Use Agreement. 6 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 2714 F.docx f. Owner and/or the Center Association shall also be entitled to make use of the Town Square for the purpose of conducting or permitting private events and functions on a limited basis as herein provided by Owner or the Center Association for Owner, or for tenants or other occupants of the Retail Parcel, the Office Parcels, the Hotel Parcel and the Loft Parcel. g. City shall be entitled to make use the Town Square for City activities open to the general public ("City Events") on the basis set forth in this Agreement: Such City Events may be held in the Town Square no more frequently than six (6) times per calendar year, unless Owner agrees otherwise. The following shall be the criteria for any Town Center City Events: i. City Events shall be open to the general public and may include events or fundraisers involving 501(c)(3) organizations. ii. The Town Square shall be cleared of any materials and equipment for City Events immediately after the City Event. Any set up for City Events shall occur before general hours of the operations of the Retail Component of the Project and not interfere with the operations of the Retail Parcel, the Office Parcels or the Hotel Parcel, or other components of the Project, or with traffic flow or parking within the Project. Break down of any set up of a City Event shall occur after 8:00 p.m.; in no circumstances shall any such set up for any City Event remain in the Town Square overnight. iii. The organizers/operators of any City Event shall be responsible for obtaining reasonable levels of liability insurance that meet the criteria of the Retail Owner, temporary toilet facilities, all costs of the event, and security and cleanup for the event. iv. If the Retail Owner needs to provide extra security or cleanup during/after event then the organizer/operator of the City Event shall reimburse the Retail Owner for the costs of such extra security and cleanup, including the garage or the Common Easement Areas of the Project. V. Any sponsor using the Town Square under the auspices of the City for a City Special Event shall have insurance meeting reasonable minimum liability coverage requirements of Owner; absent such coverage, the City shall indemnify and hold Owner and the Center Association harmless from any claims arising from City Special Events held in the Town Square or the Park. If the event is sponsored by a third party, then the third party sponsor shall indemnify and hold Owner and the Center Association and the City harmless from any claims arising from sponsored events involving the City. The only exception to this indemnification by City or the sponsor is except to the extent that the liability is arising out of the willful or negligent acts, omissions, or activities of an officer, agent or employee of Owner. h. City shall establish a single point of contact for managing City Special Events, who shall be the Director of Parks and Recreation of the City (the "Parks Director") unless City notifies the Retail Owner otherwise in writing. The Director of Parks and Recreation of the City (the "Parks Director") shall administer the calendaring of such special functions and occasions in the Town Square and the Main Street Park as described herein, by City. City and the Retail Owner shall establish and reserve dates for City Events that are to be conducted by City at least three (3) months in advance of any scheduled City Event. The Retail Owner and the Center Association, and the Hotel Owner and the Office Owner or Owners, and their tenants, under the auspices and regulation of the Center Association, shall have the rights of use of the Town Square for all times other than those times established and reserved for City Events. 7 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 2714 F.docx i. On or before the 1St day of October of each year, the Director of Parks and Recreation of the City shall develop an annual schedule of City Events for the Town Square planned by City and present that schedule to Owner and the Center Association. Representatives of Owner, the Center Association and the City Parks and Recreation Department shall meet and confer before November 1 of each year to establish an agreed schedule for City Events to be held in the Town Square during the ensuing year. Special events shall be an exception to this process and only require 30 -days' notice, subject to availability. j. Owner and the Center Association, in collaboration with the City Parks and Recreation Director, shall mutually prepare use guidelines and restrictions regarding the use of the Town Square, pertaining to limiting and prohibiting improper uses, such as overnight uses, amplified sounds or music, traffic, animals, congestion, waste, security issues, inference with neighboring properties, and other such matters. k. No permanent structures will be constructed on the Town Square area, other than those approved under the Use Permit, without City approval. I. Maintenance. Owner shall be responsible for all maintenance, repair and landscaping and improvements of the Town Square. The City and Owner shall meet and cooperate for the purpose of reviewing maintenance issues on a regular basis. The Town Center shall be maintained by the Owner as a first class square at a maintenance level similar or better than other similar sites located within Class A office and retail developments. i. Trash. Owner will be responsible for providing and maintaining minimum and reasonable number of trash receptacles in the Town Square, and shall provide for regular trash removal as needed and appropriate. ii. Graffiti. Owner will provide graffiti removal promptly. iii. Landscaping. Landscaping shall be maintained at a level similar to other first class facilities. Should any landscaping die it shall be promptly replaced by equivalent landscaping. 5. Availability of Restroom Facilities. Owner shall make publicly identifiable restroom facilities available for public use and for users of Main Street Park and Town Square, without charge, during normal business hours for the retail portion of the Project. The location of such restroom facilities shall be in the location shown on Exhibit "A" attached hereto. Signage for such restroom facilities shall be subject to the Master Sign Program or, if temporary facilities are being made available, than signage approval by the Director of Community Development. For larger public events, the party conducting the event shall also provide sufficient temporary toilet facilities. 6. Rights of Access by City. The employees and agents of the City shall have reasonable rights of access over and across the Town Square and Main Street Park to perform any obligations of the City under this Agreement and to inspect and monitor the performance of Owner and/or the Center Association under this Agreement. 7. Insurance. Owner and/or the Center Association, at no cost and expense to City, shall procure and keep in full force and effect during the term, commercial general liability insurance with respect to the operations of or on behalf of Owner and/or the Center Association or its agents, officers, directors, and employees in, on or about the Park and the Town Square, in an amount not less than One Million Dollars ($1,000,000) per occurrence of combined single limit bodily injury, personal injury, death and property damage, subject to such increases in amount as the City may reasonably require from time to time. The policy or policies shall include that City shall be an additional insured under such policy or policies. 8 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 27 14 F.docx a. Standard. All policies of insurance required to be carried by Owner and/or the Center Association under this agreement shall be written by responsible and solvent insurance companies authorized to do business in the State of California and having a rating of at least B+ VII in Bests Insurance Guide. Any such insurance required of Owner and/or the Center Association hereunder may be furnished under any blanket policy carried by it or under a separate policy therefor; provided, however, if such insurance is covered by a blanket policy, then the limit of liability shall be at least $2,000,000 combined single limit per occurrence. A certificate of the insurer, certifying that such policy has been issued, providing the coverage required by this Section and containing provisions specified herein, shall be delivered to City prior to the issuance of a certificate of occupancy for any retail components of the Development Property or as City may otherwise require, and upon renewals, not less than thirty (30) days prior to the expiration of such coverage. City may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured hereunder. In no event shall the limits of any policy be considered as limiting the liability of Owner and/or the Center Association under this Agreement. Each policy evidencing insurance required to be carried pursuant to this section shall contain the following provisions or clauses: L A provision that the insurer will not cancel or materially change the coverage provided by such policy without first giving City thirty (30) days' prior written notice of such cancellation or termination, except for ten (10) days for nonpayment of premiums; ii. A waiver by the insurer of any right to subrogation against City, its agents, attorneys, employees or representatives which arises or might arise by reason of any payment under such policy or policies or by reason of any act or omission of City, its agents, attorneys, employees or representatives. b. The Owner or the Center Association may require that any Event Sponsors obtain and maintain liability insurance in reasonable amounts that names the Owner and/or the Center Association as additional insured parties. 8 Closing of Town Square and Park. Owner and/or the Center Association shall be entitled to: (a) close temporarily any portion of the Main Street Park and/or the Town Square to whatever extent required in the reasonable opinion of their respective legal counsel in order to prevent a dedication of any of the park or Town Square or the accrual of any prescriptive rights of any person or of the public to the park or Town Square, provided that such closures do not materially and adversely affect the use of the park or Town Square; (b) close temporarily any portion of the park or Town Square for maintenance purposes or as may be required for safety and security purposes, provided that such closures do not materially and adversely affect the use of the park or Town Square. Owner and/or Center Association shall notify the Director of Community Development no less than 72 hours prior to any closure of the Main Street Park for these purposes. Any closure of Main Street Park shall be limited to the shortest duration necessary by law to maintain the rights of the Owner and/or Center Association. 9. No Obstructions. Owner will not erect nor permit to be erected any building or structure of any nature whatsoever that interferes with use of Main Street Park. Owner will not erect nor permit to be erected any building or structure of any nature whatsoever within the Town Center without first obtaining written approval from the Director of Community Development. 10. Indemnity. Owner shall, to the fullest extent allowed by law, indemnify, defend and hold harmless City and its officers, officials, agents, employees and volunteers from and against any liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise , arising out of, pertaining to, or related to the operation, use and maintenance of Main Street Park and Town Square, except to the extent arising out of the willful or negligent acts, omissions, or activities of an 9 G:\Planning\Stephen Rose\Main Street\2014.3.6 - Joint Use Agreement Final\Main Street Joint Use Agreement 02 27 14 F.docx officer, agent or employee of City. City agrees, to the fullest extent allowed by law, indemnify, defend and hold harmless the Owner and the Association against any liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise , arising out of, pertaining to, or related to the willful or negligent acts, omissions, or activities of an officer, agent or employee of City arising from the City's use of Main Street Park and Town Square. 11. Breach. In the event that Owner fails to comply with the terms of this Agreement, City shall have the right to bring an action to enforce this Agreement either within (14) calendar days of the breach or written notice from the City, or a longer period designated in City's written notice. 12. Attorney's Fees. In the event any party hereto institutes legal action to enforce or interpret its rights under this Agreement, then the prevailing party or parties shall be entitled to reasonable attorneys' fees in addition to other costs of suit as awarded by the court or arbitrator. If the City or Owner uses in-house counsel for any such action or arbitration, then the costs of such counsel shall be billed at ordinary rates that such attorney bills to departments his or her services for reasonable time for legal effort expended. 13. Duration of Use Rights. The rights herein granted shall be perpetual in favor of the City as long as the Main Street Park and Town Square are part of the Development Property as established by the Use Permit. 14. Property Subject to Agreement; Covenants Running With the Land; Equitable Servitudes. All of the Property shall be subject to this Agreement. This Agreement shall be recorded in the Official Records of Santa Clara County, California and shall constitute covenants running with the land, and be binding on all parties having or acquiring any right, title or interest in the Property or any portion thereof and shall be for the benefit of each owner of any of said parcels or any portion of said Property and shall inure to the benefit of and be binding upon each successor -in -interest of the owners thereof, including the City as the holder of the rights of use and access to portions of the Property as herein described. All of the rights of use, covenants and declarations herein contained shall be deemed to be equitable servitudes enforceable by any of the Parties or their successors and assigns. 15. Amendments. This Agreement may not be modified without the express written approval of City. It may be amended in whole or in part only by written agreement executed by the Parties. 16. Governing Law/Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action or proceeding to enforce any term of this Agreement shall be brought in an appropriate forum within the County of Santa Clara, State of California. [End of Body of Agreement; Signatures are affixed on the following Page 11] 10 G:\Planning\Stephen Rose\Main Street\2014.3.6- Joint Use Agreement Final\Main Street Joint Use Agreement 02 2714 F.docx IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date listed above. MAIN STREET CUPERTINO AGGREGATOR, LLC, a Delaware limited liability company By: SHP Main Street LLC, a California limited liability company,}K e By: Peter Pau, its Sole Member STATE OF CALIFORNIA ) SS COUNTY OF�I�I/�T?�iO ) CITY OF CUPPM1710 By: Y_�� .� Name: David Brandt Title: City Manager APPROVED AS TO FORM —autum �A4�, e Carol Korade City Attorney On 2 3 20Le fore me, Notary Public, pe sonally appeared1. the basis of satisfactory evidence to berson(s) wh within instrument and acknowledged to me that he, his/h,e6i�ei authorized capacity(ies), and that by his/t Kl the person(s), or the entity upon behalf of which the person • who proved to me on n me(s) is/subscribed to the Wlhdy executed the same in ei"r signature(s) on the instrument ) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Commission'# 1914559 Notary Public - California San Mateo County Comm. Exoires Dec 5. 2014 [Seal] ness my hand and official seal. (Sig"ture) 11 C:\Users\KY-deskfop\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\QQ021UP2\Main Street Joint Use Agreement'02 13 14F.docx STATE OF CAUFORNIA )SS COUNTY OF gzt m lit Clarq On /�'ta/c� Zoi 20i f 201Lr before me, l�ii�s74" Ae-geeyarC,'g Notary Public, personally appeared r ., who proved to me on the basis of satisfactory evidence to be the person(gy whose nameA l are subscribed to the hin instrument and acknowledged to me t att&she/they executed the same in Vehiher/their authorized capaciity(iA, and that b l her/their signature(4on the instrument personky, or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing ; true and correct. 50 KIRSTEN RENEE SQUARCIA Commission # 1906898 Z Notary Public - California i z Santa Clara County My Comm. Expires Oct 4. 2014 [Seal] Witness my hand and official seal. (SignaturIlm- 12 C:\Users\KY-desktop\Appbata\LcCal\Mkrowft\Windows\Temporary Internet Files\content.0utlook\QQ021UP2\Main Street Joint Use Agreement 0213 14F.docx Exhibit: Exhibit "A" 13 C:\Users\KY-desktop\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\QQ021UP2\Main Street Joint Use Agreement 02 B 14F.docx EXHIBIT A - JOINT USE AGREEMENT L2 1 02 t�i+f -+tli v C2 En FIRST FLOOR PLAN • RETAILFLEX 2 (13 110 SFS 7,�K J J J 0,8 ACRES OJELT J J J 4STORY :J J J J OFFICE 2 J. J J •d J J 7 J ,?I J d 14 j -444 J J 'J <�►�� � J � � •' UBLIU OWAWTHAUOARMUESdPIRffiLRS M ESTROOMS �t Nhanm lM1y(S•rt TYf MAIN STREET CUPERTINO R u Asomr,070 -- Arms. 6S0.71i07&/J FnR' f30.0PP JF4F SAND HILL PROPERTY COMPANY CUPERTINO, CALIFORNIA F �1-