97-039 License Agreement with Cupertino City Center Owners Assoc. for Public Park @ De Anza & Stevens Creek, Reso 9858LICENSE AGREEMENT
This License Agreement ("Agreement") is made effective this Z 4 ik day of
mune. 1997 by and between the CUPERTINO CITY CENTER OWNERS
ASSOCIATION, a non-profit corporation organized under the laws of the State of California
("Association"), as Licensor, and the CITY OF CUPERTINO, a General Law ("City"), as
Licensee.
RECITALS
A. Association is the owner of .that certain real property situated in the City of
Cupertino, County of Santa Clara, State of California, described as Lot 8 of Tract Map No. 7953
recorded on February 27, 1987 in Book 571 of Maps, Pages 36 and 37, of the Official Records of
Santa Clara County (the "Property"). The Property is part of Cupertino City Center, a complex
of office and residential buildings (the "Project"). Attached hereto as Exhibit "A' is a map
depicting the Property and the Project.
B. On September 2, 1987 there was recorded in the Official Records of Santa Clara
County in Book K281 beginning at Page 2071 a First Amendment to Declaration ("Declaration")
of Covenants Conditions and Restrictions and Grant of Easements for Cupertino City Center (the
"Declaration Amendment"). Paragraph 8 of the Declaration Amendment provides, inter alia, as
follows:
"Lot 8 of Tract 7953 shall include a "park" area (the area bounded
by private streets and public sidewalks) which shall be made
available for public use. The "park" area shall at all times be
subject to the control of the Association. No structures will be
constructed on the "park" area without the approval of the City of
Cupertino, other than typical park furniture and equipment. The
City of Cupertino is declared to be a third party beneficiary of this
covenant."
\HLI\337361.02 -1-
72-042409400001
G'oUnC.t I <
C. Resolution No. 9751 was adopted and passed by the City Feunsel of the City on
December 11, 1996 approving, in concept, an agreement for the improvement of an existing
private park located on the Property. This Agreement is to fulfill the requirements of the
aforesaid Resolution.
NOW, THEREFORE, the parties agrees as follows:
1. Association does hereby grant and convey to City a non-exclusive, irrevocable
license for the use of the Property as a public park, subject to the limitations and covenants set
forth herein. The use of the Property currently being made for automobile parking shall continue
and not be affected or altered by the aforesaid grant.
2. City is to install, at City's expense, on the Property, a system of trees, irrigation
pipes, walkways and park furniture all of which shall be in substantial conformance with the
conceptual plan attached hereto as Exhibit `B" (the "Plan"). Any material changes in the Plan by
City are subject to the approval of the Association, which approval will not be unreasonably
withheld. Any changes in the Plan must be in writing and approved by both City and Association.
The improvements to be made pursuant to the glqn are referred to herein as the "Improvements".
Association City
agrees to cooperate with and any non-profit organization which may, for
purposes of fund raising, cause the installations of bricks or other paving materials to the
Improvements.
3. The Improvements shall be completed in a good workmanlike manner, with
materials of good quality. It is Association's expectation that the quality of the Improvements
will be consistent with the quality achieved by the City in creating and constructing the City of
Cupertino Memorial Park. Upon completion of the Improvements, City will provide to
Association a copy of "as built" plans and specifications for the completed work. City will be
1HLI1337361.02 -2-
72-042409400001
responsible for any and all defects arising out of materials and/or labor in connection with such
work. Not in limitation of the foregoing, it will be the obligation of City to replace any and all
landscaping which dies or fails to grow to a healthy condition within a period of one (1) year
following its installation. Subject to the foregoing, following completion of the Improvements,
Association will assume responsibility for all repair and maintenance of the Improvements
including but, not limited to, the payment of all utility costs serving the Property. In the event
that any trees or other plant material is partially or completely destroyed through no fault of the
Association, and after the one (1) year period for which City is responsible for such trees or other
plant materials, then Association shall replace said trees or plant material at Association's cost,
provided that Association will not be required to install trees larger than twenty-four (24) inch
box in size.
4. The Property will be open as a park to the general public at all times and City may
allow or sponsor public events thereon. City will not sponsor or allow organized public events to
occur on the Property unless the organization holding the event provides City with (i) adequate
liability insurance (not less than One Million Dollars ($1,000,000) per occurrence), naming both
the City and the Association as additional insureds and (ii) assurances of reasonable security and
crowd control measures required by the event. Such organized events shall not include events
which are primarily commercial in nature or which are conducted for profit unless such events are
approved in advance in writing by Association. City's use of the license will not interfere with the
normal operation and use of the Project nor reflect negatively on the image of the Project.
5. City shall have the right to install,spb to the Association's consent, which
+W0consent will not be unreasonably withheld, on � smaasof the Property, public art at City's
sole expense. Following the installation of such public art, City will bear all costs of maintenance,
\HLI\337361.02
72-042409400001 -3-
repair and/or replacement thereof, including, but not limited to, the cost of any utilities utilized in
the operation thereof. Said public art shall not unreasonably interfere with the current signage in
that location.
6. City shall not suffer or permit to be enforced against the Property, or any part
thereof, any mechanic's, materialman's, contractor's, or subcontractor's liens, claims or demands
arising from the Work. City agrees to indemnify, defend, and hold Association and the Property
free. and harmless from all liability for any such claims, liens, and demands, together with
reasonable attorneys' fees and all costs and expenses in connection therewith.
7. Subject to the Declaration and to the applicable zoning, Association for itself and
its members reserves the right to use the Property for any lawful purpose not inconsistent with
this Agreement including the use of the Property, from time to time, as a temporary construction
staging area for construction being performed on the Cupertino City Center Project of which the
Property is a portion.
8. City agrees to indemnify, defend with counsel approved by Association, and hold
Association harmless from all liability, claims, demands, damages and/or losses, including
attorneys fees, resulting or arising out of the use of the Property pursuant to this Agreement by
City, its agents, employees, contractors, subcontractors, licensees and/or invitees. Association
agrees to indemnify, defend with counsel approved by City, and hold City harmless from all
liability, claims, demands, damages and/or losses, including attorneys fees, resulting or arising out
of the use of the Property pursuant to this Agreement by Association, its agents, employees,
contractors, subcontractors, licensees and/or invitees.
9. In the event it is necessary for either party to employ an attorney or other person
or commence an action to enforce any of the provisions of this Agreement and of the prevailing
\HLI\337361.02 _4_
72-042409400001
party shall be entitled to recover all costs of enforcement in connection therewith, including but
not limited to court costs, expert witness fees, and attorneys' fees.
10. In the event of a material breach of this Agreement by City and the failure of City
to cure said breach within thirty (30) days of written notice from Association (or such longer
period as shall reasonably be required to effect such cure within such thirty (30) days and pursues
the cure with due diligence), then in such event, and in addition to any other remedies available at
law or equity, Association shall have the right to terminate the license granted hereunder upon
written notice to City.
11. Each of the parties agrees that it shall, upon request of the other party, execute and
deliver such further documents and do such other acts and things as are reasonably necessary and
appropriate to effectuate the terms and conditions of this Agreement.
12. The Agreement shall be construed and enforced in accordance with and governed
by the laws of the State of California.
13. The Agreement shall constitute a covenant running with the land and shall be
recorded in the Official Records of Santa Clara County.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date
first above written.
CUPERTINO CITY CENTER OWNERS
ASSOCIATION, a non-profit corporation organized
under the laws of the State of California
By:
Its: John J. Murphy, Secretary
CITY (
By:
Its:
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EXHIBIT A
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EXHIBIT B
The City of Cupertino
Appendix .4
��Cily of
Cupertino
June 29, 1997
John J. Murphy
Maxim Properties
350 Bridge Parkway
Redwood City, California 94065
LICENSE AGREEMENT
City Hall
10300 Tone Avenue
Cupertino, CA 95014-3255
Telephone: (408) 777-3223
FAX: (408) 777-3366
OFFICE OF THE CITY CLERK
Enclosed for your files and information are two fully executed agreements by and between the City of
Cupertino and Cupertino City Center Owners Association and a certified copy of Resolution No. 9858.
If you have any questions or need additional information, please contact the Department of Community
Development at (408) 777-3308.
Sincerely,
. C.5
KIM�ERLYSH, CMC
CITY CLERK
KS/cs
Enclosure
cc: Department of Community Development
Printed on Recycled Paper
RESOLUTION NO. 9858
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE A MODIFIED LICENSE
AGREEMENT BETWEEN THE CUPERTINO CITY CENTER OWNERS
ASSOCIATION AND THE CITY OF CUPERTINO REGARDING THE USE OF
SPECIFIC PROPERTY LOCATED IN THE SOUTHEAST CORNER OF
INTERSECTION OF DE ANZA BOULEVARD AND STEVENS CREEK
BOULEVARD FOR PUBLIC PARK USE
WHEREAS, on May 5, 1997, the City Council authorized the City Manager to execute a
License Agreement regarding the use and maintenance of the subject property; and
WHEREAS, upon final review of the Agreement by the City and by the Cupertino City
Center Associates, each party agrees that the indemnification clause (Paragraph 8) of said
Agreement warrants amendment; and
WHEREAS, the terms, conditions and provisions of this modified agreement have been
reviewed and approved by the City Manager and the Director of Community Development and
the Public Works Department.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby approves the aforementioned modified License Agreement in concept as described on
Exhibit A and authorizes the City Manager to execute said agreement on behalf of the City of
Cupertino. The final agreement shall be approved as to form and content by the City Attorney.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 2nd day of June, 1997, by the following vote:
Vote: Members of the City Council
AYES: Burnett, Chang, Dean, Sorensen, Bautista
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Kimberly Smith
City Clerk
/s/ John Bautista
Mayor, City of Cupertino
AGENDA
CUPERTINO CITY COUNCIL — SPECIAL MEETING
10300 Torre Avenue, City Hall Council Chamber
Monday, December 18, 2000
2:30 p.m.
PLEDGE OF ALLEGIANCE
ROLL CALL
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the council on any matter
not on the agenda. Speakers are limited to three minutes. In most cases, State law will prohibit
the council from making any decisions with respect to a matter not listed on the agenda.
NEW BUSINESS
1. Authorize the city manager to approve the first amendment to the License Agreement
with the Cupertino City Center Owners Association revising the boundaries of a license
for the non-exclusive irrevocable use of the property described as Lot 8 of Tract Map
7983 as a Public Park. The property is located at the southeast corner of Stevens Creek
Boulevard and DeAnza Boulevard.
(A) Resolution No. 00-300, "A Resolution of the City Council of the City of
Cupertino ordering vacation of a private access easement and emergency vehicle
access easement within the City of Cupertino, California — Lot 8 of Tract 7983,
Cali Avenue.
(B) Resolution No. 00-301, "A Resolution of the City Council of the City of
Cupertino authorizing execution of first amendment to license agreement property
and acceptance of securities between the Cupertino City Center Owners
Association and the City of Cupertino regarding the use of specific; property
located on the southeast corner of De Anza Boulevard and Stevens Creek
Boulevard"
F.11 11 [00 111V101 D1►Y I
Please note that the meeting of Monday, Jan. 1 has been cancelled. The next meeting of the City
Council will be on Tuesday, Jan. 16, 2001.
RESOLUTION NO. 00-300
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ORDERING VACATION OF A PRIVATE ACCESS EASEMENT AND EMERGENCY
VEHICLE ACCESS EASEMENT WITHIN THE CITY OF CUPERTINO
CALIFORNIA —LOT 8 OF TRACT 7983; GENERALLY LOCATED AT THE
SOUTHEAST CORNER OF STEVENS CREEK BOULEVARD AND DE ANZA
BOULEVARD
WHEREAS, that certain Private Access Easement and Emergency Vehicle Access
Easement more particularly described in description and map attached hereto and made part
hereof as Attachment "3", are deemed unnecessary for present and prospective use; and
WHEREAS, it appears to be in the best interest of the city to vacate the hereinafter
described private access and emergency vehicle access easements; and
WHEREAS, said vacations are in conformation with the city's General Plan.
NOW, THEREFORE, BE IT RESOLVED:
1. That all or any protests against the vacations are hereby overruled and denied;
2. That said private access and emergency vehicle access easements described and
shown in Attachment "3" attached hereto and made part hereof, be and hereby are vacated.
BE IT FURTHER RESOLVED:
That the City Clerk is hereby instructed and directed to cause a certified copy of this
resolution, attested to and sealed with the official seal of the City, to be recorded with the County
Recorder of the County of Santa Clara, California, forthwith.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18`x' day of December, 2000, by the following vote:
Vote Members of the City Council
AYES: Burnett, Chang, James, Lowenthal, Statton
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPRO D:
City Clerk Mayor, City of Z3ueGo
ATTACHMENT #3
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RESOLUTION NO. 00-301
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF FIRST AMENDMENT TO LICENSE
AGREEMENT PROPERTY AND ACCEPTANCE OF SECURITIES BETWEEN
THE CUPERTINO CITY CENTER OWNERS ASSOCIATION AND THE CITY
OF CUPERTINO REGARDING THE USE OF SPECIFIC; PROPERTY LOCATED
ON THE SOUTHEAST CORNER OF DE ANZA BOULEVARD AND
STEVENS CREEK BOULEVARD
WHEREAS, on May 5, 1997, the City Council authorized the City Manager to execute a
License Agreement regarding the use and maintenance of the subject property; and
WHEREAS, upon review of the Agreement by the City and by the Cupertino City Center
Associates, each party agrees that Recital A of the Agreement warrants amendment; and
WHEREAS, the terms, conditions and provisions of this First Amendment to License
Agreement have been reviewed and approved by the Director of Public Works Department and the
City Attorney.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby approves the aforementioned First Amendment to License Agreement as described and
authorizes the City Manager to execute said amendment and accept securities in the total amount of
$256,700.00 on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino
this 18`x' day of December, 2000, by the following vote:
Vote: Members of the City Council
AYES: Burnett, Chang, James, Lowenthal, Statton
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
612�
City Clerk
PP •
Mayor-,• •!' •