106-E. Draft Parking License Agreement for Building B.pdfATTACHMENT E
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
GOODWIN PROCTER LLP
Three Embarcadero Center, 24`h Floor
San Francisco, CA 94111
Attn: Paul Churchill
[SPACE ABOVE THIS LINE FOR RECORDER'S USE.]
LICENSE AGREEMENT
(PARKING)
THIS LICENSE AGREEMENT (PARKING) ("Agreement") is entered into as of December
2010 (the "Effective Date"), by and between CUPERTINO FINANCIAL CENTER PARTNERS
LLC, a California limited liability company ("Licensor"), and CUPERTINO HOUSING
PARTNERS LLC, a California limited liability company ("Licensee").
RECITALS
A. Licensor is the current owner of that certain real property located in the City of
Cupertino, County of Santa Clara, State of California, commonly known as 10050 and 10080 N.
Wolfe Road, Cupertino, California and more particularly described on Exhibit A attached hereto
(the "Licensor's Property").
B. Licensee is the owner of those certain retail spaces located on the Parking
Property and more particularly known as 19501 Stevens Creek Boulevard, Building B Units
R101B, R102B & R103B and more particularly described and depicted on Exhibit B attached
hereto (the "Licensee's Property"),
C. The Metropolitan at Cupertino Condominium Owners Association, a California
nonprofit mutual benefit corporation (the "Association") is the owner of that certain real property
adjacent to Licensor's property which is upgraded with, inter alia, a parking garage (the
"Parking Property")
D. Pursuant to, that certain Amended and Restated Reciprocal Easement and
Maintenance Agreement by and between the Association's predecessor in interest, Licensee and
Licensor, dated as of JuncV'7, 2005, and recorded in the official records of Santa Clara County,
California on August 9, 2005 as Document Number 18515790 (the "Easement") a copy of which
is attached hereto as Exhibit C, Licensee granted to Licensor, inter alia, a non-exclusive
easement for the use of fifty-seven (57) unreserved Residential Property Podium Parking Stalls
located in the Residential Property Easement Area. Capitalized terms used in this Agreement and
not otherwise defined shall have the meaning given to such teens in the Easement.
E. Licensee has requested a license for the use of three (3) Residential Property
Podium Parking Stalls (the "Licensed Stalls") for the parking of Vehicles.
F. Licensor is willing to issue such license upon the terms and conditions set forth
below.
Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
1. License. Subject to the terms and conditions set forth in this Agreement,
Licensor hereby licenses to Licensee (and its invitees, guests, agents and sub -tenants) the use of
the Licensed Stalls for the parking of Vehicles during Office Hours (the "Parking License").
The Licensor shall be entitled to use and enjoy the parking stalls and the Residential Property
Easement Area for any purpose or use which does not unreasonably interfere with the Licensee's,
ability to use the Parking License.
2. Damage to Licensed Stalls/Driveways by Licensee. If, and solely to the extent,
the Licensed Stalls or any of the related driveways, passage ways or sidewalk areas (collectively,
the "Driveways") are damaged or destroyed by the Licensee (or its invitees, guests, agents,
tenants or subtenants), the Licensee shall, at the Licensor's election, either (a) immediately repair,
reconstruct, restore or replace such damaged or destroyed portion of the Licensed Stalls or the
Driveways to substantially the condition they were in immediately prior to the occurrence of such
damage or destruction or (b) reimburse the Licensor on demand for all reasonable expenses and
costs actually incurred by the Licensor in repairing, reconstructing, restoring or replacing such
damaged or destroyed portion of the Licensed Stalls or Driveways.
3. Covenants of the Parties.
3.1 Compliance with Easement and Applicable Law. Licensee shall, and
shall cause its invitees, guests, agents, tenants and sub -tenants, to comply with (i) all terms,
conditions, rules and regulations set forth now in, or hereinafter pursuant to, the Easement and (ii)
all applicable Federal, State and local laws and regulations relating to its use of the Parking
License.
3.2 Mechanic's Liens and Removal of Liens. Each of the Licensee and the
Licensor shall keep the Licensed Stalls and the Driveways free and clear of all design
professional's, mechanic's or materialmen's liens which may arise out of any Improvement
Project or any other activities or work on the Parking Stalls and/or the Driveways. To the extent
any such liens are recorded against the Parking Property or any part thereof, the party responsible
for the imposition of the lien shall cause such lien to be released and removed within fifteen (15)
days of knowledge or being served notice of such filing and/or recording, either by satisfaction or
by the posting of a release bond in the amount required by statute.
3.3 Indemnification. Licensee agrees to indemnify, defend and hold the
Licensor and its officers, directors, shareholders, partners, managers, members, affiliates,
guarantors, employees, contractors (of any tier), guests, customers, tenants, subtenants, licensees,
invitees, representatives, agents, mortgagees, successors and assigns (collectively, the
"Indemnified Parties") harmless from and against any and all claims, actions, causes of action,
demands, damages, costs, liabilities, losses, judgments, expenses or costs of any kind or nature
whatsoever (including, without limitation, attorneys' fees) by reason of property damage, death or
2
injury to persons arising from or relating to the Licensee's use, maintenance, reconstruction or
replacement of, the Parking License, except to the extent that such death, injury or property
damage arises from the gross negligence or willful misconduct of the Indemnified Parties.
4. No Public Dedications. Nothing in this Agreement is intended to be or shall be
deemed or construed to be a gift or dedication of any portion of the Licensed Stalls or Driveways
for any public use.
5. Notices. Any notice, consent, approval or request for consent required or
permitted to be given under this Agreement shall be given in writing and shall be effective (i) if
personally delivered, upon delivery or refusal to accept such delivery; or (ii) if mailed, three (3)
days after mailing, by United States registered or certified mail, postage pre -paid, return receipt
requested, to the applicable address set forth below:
If to Licensor: Cupertino Financial Center Partners LLC
c/o Menlo Equities LLC
490 California Avenue, 4th Floor
Palo Alto, CA 94306
Attention: Henry D. Bullock
Richard J. Holmstrom
If to Licensee: Cupertino Housing Partners LLC
c/o Menlo Equities LLC
490 California Avenue, 4th Floor
Palo Alto, CA 94306
Attention: Henry D. Bullock
Richard J. Holmstrom
The foregoing addresses and addressees may be changed by giving notice of such change in the
manner provided for in this Section 6.
6. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
7. Attorneys' Fees. In the event of any controversy, claim or dispute relating to or
arising out of this Agreement, thr, prevailing party shall be entitled to recover from the non -
prevailing party all reasonable costs and expenses (including, without limitation, attorneys' fees).
8. Entire Agreement, This Agreement, including the recitals and Exhibit A
attached hereto, all of which are incorporated herein by this reference, constitutes the entire
agreement between the parties with respect to the grant of the license hereunder.
9. Amendments. This Agreement may be amended, modified or supplemented
only by a written document executed by all of the parties hereto (or their successors -in -title).
Licensor and Licensee shall give the Planning Director of the City of Cupertino no less than ten
3
(10) days prior written notice of any material modification or amendment of this Agreement and,
additionally, shall provide a copy of any executed amendment to this Agreement to the Planning
Director.
10. No Third Party Beneficiaries. This Agreement is only for the parties hereto.
No other person or entity or property shall be entitled to rely hereon, receive any benefit herefrom
or enforce any provision hereof against any party hereto.
11. Estoppels. Upon request of Licensee or Licensor, the other party shall, within
ten (10) days of the date of such written request, execute and deliver to the party requesting,
without charge, a written estoppel certificate certifying: (a) any amendment to this Agreement,
(b) this Agreement is in full force and effect (or otherwise, if applicable), (c) there are no uncured
defaults under this Agreement (or if there are any such defaults a description of the default), (d)
all amounts due and payable under this Agreement have been paid in full (or a description of the
then amounts outstanding), and (e) such other provisions as reasonably requested by the other
party.
12. Severability. If any one or more of the provisions contained in this Agreement
is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained in this Agreement.
13. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may be executed by facsimile or other form of electronic
communication.
[SIGNATURE PAGES TO FOLLOW]
Is
M
IN WITNESS WHEREOF, the parties have executed this License Agreement (Parking) as
of the date first above written.
"LICENSOR" CUPERTINO FINANCIAL CENTER PARTNERS LLC,
a California limited liability company
By: Menlo Equities LLC,
a California limited liability company
its Managing Member
By: Menlo Equities, Inc.,
a California corporation,
its Managing Member
Henry D. Bullock
President
"LICENSEE" CUPERTINO HOUSING PARTNERS LLC,
a California limited liability company
By: Menlo Equities III LLC,
a California limited liability company,
Manager
By: Menlo Equities LLC,
a California limited liability company,
Managing Member
By: Menlo Equities, Inc.,
a California corporation,
Managing Member
Henry D. Bullock,
President
11
EXHIBIT A
TO
NONEXCLUSIVE LICENSE AGREEMENT
(PARKING)
LEGAL DESCRIPTION OF 10050 & 10080 N. WOLFE ROAD
All of that certain real property located in the City of Cupertino, County of Santa Clara,
State of California, described as follows:
PARCEL ONE:
PARCEL A, AS SHOWN ON THAT CERTAIN MAP ENTITLED "PARCEL MAP, BEING A SUBDIVISION OF A
PORTION OF PARCEL 1, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED AUGUST 3, 1987 IN BOOK 576
OF MAPS AT PAGES 31 AND 32, RECORDS OF SANTA CLARA COUNTY AND A PORTION OF PARCEL 4, AS
SHOWN ON THAT CERTAIN PARCEL MAP FILED JUNE 19, 1973 IN BOOK 325 OF MAPS AT PAGE 12,
RECORDS OF SANTA CLARA COUNTY", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER FOR
THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON MAY 4, 2004 IN BOOK 769, PAGES 42, 43 AND
44.
RESERVING THEREFROM A NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND PEDESTRIAN ACCESS
PURPOSES OVER THAT PORTION OF PARCEL A DESIGNATED "PUBLIC PEDESTRIAN EASEMENT" ON THAT
CERTAIN MAP REFERRED TO IN PARCEL ONE.
FURTHER RESERVING THEREFROM A NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND
EMERGENCY ACCESS PURPOSES OVER THAT PORTION OF PARCEL A DESIGNATED "PUBLIC FIRE LANE
EASEMENT" ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE.
FURTHER RESERVING THEREFROM A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS PURPOSES
OVER THAT PORTION OF PARCEL A DESIGNATED "I.I.E." ON THAT CERTAIN MAP REFERRED TO IN
PARCEL ONE.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND PEDESTRIAN ACCESS PURPOSES OVER THAT
PORTION OF PARCEL B DESIGNATED "PUBLIC PEDESTRIAN EASEMENT' ON THAT CERTAIN MAP
REFERRED TO IN PARCEL ONE.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND EMERGENCY ACCESS PURPOSES OVER THAT
PORTION OF PARCEL B DESIGNATED "PUBLIC FIRE LANE EASEMENT' ON THAT CERTAIN MAP REFERRED
TO IN PARCEL ONE.
PARCEL FOUR:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS PURPOSES OVER THAT PORTION OF PARCEL B
DESIGNATED "I.I.E." ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE.
PARCEL FIVE:
A NON-EXCLUSIVE EASEMENT FOR PRIVATE UTILITY PURPOSES OVER THAT PORTION OF PARCEL B
DESIGNATED "PRIVATE UTILITY EASEMENT' ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE.
APN: 316-20-086
EXHIBIT B
TO
NONEXCLUSIVE LICENSE AGREEMENT
(PARKING)
LEGAL DESCRIPTION AND DEPICTION OF 19501 STEVENS CREEK BOULEVARD
[BUILDING B RETAIL UNITS]
All of that certain real property located in the City of Cupertino, County of Santa Clara,
State of California, described as THREE RETAIL SPACES COMPRISED OF:
PARCEL ONE:
UNIT NO. R101, R102 AND R103 LOCATED IN BUILDING B, AS DEPICTED UPON THAT CERTAIN
CONDOMINIUM PLAN FOR METROPOLITAN AT CUPERTINO (THE "PLAN) WHICH PLAN IS ATTACHED AS
EXHIBIT A TO THE DECLARATION OF COVENANTS AND RESTRICTIONS ESTABLISHING A PLAN FOR
CONDOMINIUM OWNERSHIP FOR METROPOLITAN AT CUPERTINO (THE "DECLARATION') WHICH
DECLARATION RECORDED DECEMBER 01, 2005 AS DOCUMENT NO. 18700161, OFFICIAL RECORDS,
SANTA CLARA COUNTY, SAID UNIT AND BUILDING BEING SITUATED ON LOT 1 AS SAID LOT IS SHOWN
UPON THAT CERTAIN MAP ENTITLED "TRACT NO. 9655", WHICH MAP WAS FILED IN THE OFFICE OF THE
RECORDER, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON JANUARY 27TH IN BOOK 780 OF
MAPS, AT PAGES 40 AND 41.
PARCEL TWO:
AN UNDIVIDED 3.009% INTEREST IN THE BUILDING B - BUILDING COMMON AREA IN WHICH THE
CONDOMINIUM UNIT DESCRIBED IN PARCEL ONE ABOVE IS LOCATED, AS DEPICTED ON THE PLAN AND
AS DEFINED ON THE DECLARATION AND AS SAID UNDIVIDED INTEREST IS SET FORTH IN EXHIBIT E
ATTACHED THERETO.
EXCEPTING THEREFROM AND RESERVING THE FOLLOWING:
1. ALL THE CONDOMINIUM UNITS DEPICTED ON THE PLAN AND DEFINED IN THE DECLARATION OTHER
THAN THE UNIT DESCRIBED IN PARCEL ONE ABOVE. '
2. THE EXCLUSIVE USE COMMON AREAS AS DEFINED IN THE DECLARATION AND THE EXHIBITS
ATTACHED THERETO AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE
EXCLUSIVE USE OF THE OWNERS OF CONDOMINIUMS OTHER THAN THE CONDOMINIUM UNIT
DESCRIBED IN PARCEL ONE ABOVE,
3. NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS, SUPPORT, ENCROACHMENT, USE, ENJOYMENT
AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS APPURTENANT TO ALL UNITS AS
SAID EASEMENTS AND RIGHTS ARE DEFINED IN THE DECLARATION.
PARCEL THREE:
THE EXCLUSIVE RIGHT TO THE USE, POSSESSION AND ENJOYMENT OF THE EXCLUSIVE USE COMMON
AREAS APPURTENANT TO PARCEL ONE ABOVE, AS DEFINED IN THE DECLARATION AND THE EXHIBITS
ATTACHED THERETO AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE
EXCLUSIVE USE THE OWNER OF THE UNIT TO WHICH THEY ARE ATTACHED OR ASSIGNED.
F.
PARCEL,FOUR:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, SUPPORT, ENCROACHMENT, USE, ENJOYMENT
AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS AS SHOW ON THE PLAN AND
DEFINED IN THE DECLARATION.
APN: 316-49-110 and 316-49-111 and 316-49-112
2
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EXHIBIT 'A' FIRST FLOOR -FLOOR
CONDOMINIUM PLANS
METROPOLITAN AT CUPERTINO
DATED: OCTOBER, 2005
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(3 retail units only)
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EXHIBIT C
TO
NONEXCLUSIVE LICENSE AGREEMENT
(PARKING)
COPY OF EASEMENT
LIBD/2364838.6
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61 1 t
1AWA is I D10 114 00410141 DI) C
COOLEY GODWARD LLP
One Maritime Plaza, 20'h Floor
San Francisco, California 94111
Attention: Paul Churchill, Esq.
DOCUMENT: 18515790
Pages: 18
Fees 58.00
Taxes .
Copies
AMT PAID 0
BRENDA DAVIS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
First American Title Company
[SPACE ABOVE THIS LINE FOR RECORDER'S USE.]
AMENDED AND RESTATED
RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
RDE # 003
8/09/2005
8.00 AM
THIS AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANCE
AGREEMENT ("Agreement") is entered into as of June 7, 2005, by and between
CUPERTINO FINANCIAL CENTER PARTNERS LLC, a California limited liability company
("CFCP"), and CUPERTINO HOUSING PARTNERS LLC, a California limited liability
company ("CHP").
RECITALS
A. CFCP is the current owner of that certain real property located in the City
of Cupertino, County of Santa Clara, State of California, commonly known as 10050 and
10080 N. Wolfe Road, Cupertino, California, as more particularly described in Exhibit A
attached hereto and incorporated herein by this reference (the "Office Property"). The
Office Property is presently improved with commercial office buildings, an underground
parking structure, a surface parking lot and other related facilities. From and after
completion of construction of the Residential Project (as defined in Recital D below), the
portion of the Office Property within that certain easement area shown and described on
Exhibit B attached hereto and incorporated herein by this reference (the "Office Property
Easement Area") will be improved with approximately one hundred fifty-seven (157)
paved and striped, surface parking stalls (the "Office Property Parking Stalls"), drive
aisles serving such stalls, landscaping, irrigation, lighting and pedestrian pathways and
courtyards,^
B. CFCP has conveyed to CHP that certain real property located in the City
of Cupertino, County of Santa Clara, State of California, more particularly described in
Exhibit C attached hereto and incorporated herein by this reference (the "Residential
Property").
C. Concurrently with such conveyance, CFCP and CHP entered into that
certain Reciprocal Easement and Maintenance Agreement dated as of May 20, 2004, and
recorded in the Official Records of the Recorder of the County of Santa Clara, California,
875677 vl t/SF
on May 20, 2004, as Document No. 17799148 (the "Original Reciprocal Easement').
CFCP and CHP now desire to amend and restate the Original Reciprocal Easement as set
forth in this Agreement.
D. CHP desires to improve the Residential Property with a total of
approximately one hundred seven (107) one -bedroom, two -bedroom and three -bedroom
residential and five (5) retail units and related infrastructure, improvements, amenities
and other facilities (the "Residential Project"). From and .after completion of
construction of the Residential Project, the portion of the Residential Property within that
certain easement area shown and described on Exhibit B hereto (the "Residential
Property Easement Area") will be improved with fifty-three (53) paved and striped,
surface parking stalls (the "Residential Property Surface Parking Stalls") and
approximately one hundred and ninety eight (198) paved and striped, parking stalls under
a podium deck (the "Residential Property Podium Parking Stalls"), drive aisles and
ramps serving such stalls, landscaping, irrigation, lighting and pedestrian pathways and
courtyards. The Residential Property Surface Parking Stalls and the Residential Property
Podium Parking Stalls are sometimes collectively referred to in this Agreement as the
"Residential Property Parking Stalls."
E. The parties desire (i) for CFCP to grant to CHP (a) a non-exclusive
easement for the parking of the Residential User's and Retail User's Vehicles (as such
terms are defined in Section 1 below) within the Office Property Surface Parking Stalls
on the Office Property Easement Area during Non -Office Hours (as defined in Section
1.1 below) and (b) non-exclusive easements for vehicular, pedestrian and bicycle ingress
and egress over the Office Property Easement Area in connection therewith and (ii) for
CHP to grant to CFCP (a) a non-exclusive easement for the parking of the Office User's
(as defined in Section I below) Vehicles on fifty seven (57) unreserved Residential
Property Podium Parking Stalls and on fifty three (53) unreserved Residential Property
Surface Parking Stalls during Office Hours (as defined in Section 1.2 below) and (b) non-
exclusive easements for vehicular, pedestrian and bicycle ingress and egress over the
Residential Property Easement Area.
F. The parties are willing to grant such non-exclusive easements upon the
terms and conditions set forth below,
G. CFCP or any subsequent owner of the Office Property is hereafter referred
to as the "Office Owner", and CHP or any subsequent owner of the Residential Property
is hereafter referred to as the "Residential Owner".
Now, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
875677 vI I/SF
AGREEMENT
1. Certain Definitions. While additional terms are defined elsewhere in this
Agreement, whenever used in this Agreement, the following terms shall have the
meanings described below.
1.1 Non -Office Hours. "Non -Office Hours" shall mean Monday
through Friday from 6:00 p.m. until 7:00 a.m. and twenty-four hours per day on
Saturdays, Sundays and legal holidays, with such legal holidays, including, without
limitation, New Year's Day, Martin Luther King Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
1.2 Office Hours. "Office Hours" shall mean Monday through Friday
from 7:00 a.m. until 6:00 p.m., excepting the legal holidays referred to in Section 1.3
below.
1.3 Office Users. "Office Users" shall mean CFCP and its successors
and assigns and its and their customers, guests, tenants, subtenants, contractors (of any
tier), agents, representatives, employees, invitees and licensees.
1.4 Reserved Parking Stalls. "Reserved Parking Stalls" shall mean
those parking stalls on the Office Property which CFCP may from time to time
specifically designate and physically mark or segregate as being reserved parking stalls
for the Office Users pursuant to and in accordance with this Agreement.
1.5 Residential Users. "Residential Users" shall mean the
Residential Owner and its successors and assigns and its and their customers, guests,
tenants, employees, invitees and licensees.
1.6 Retail Hours. "Retail Hours" shall mean every day of the week
from 6:00 a.m. until 11:00 p.m.
1.7 Retail Stalls. "Retail Stalls" shall mean twenty-four (24) Parking
Stalls comprising a portion of the Residential Property Surface Parking Stalls located
proximately to the retail units.
1.8 Retail Users. "Retail Users" shall mean the Residential Owner
and its successors and assigns and its and their customers, guests, tenants, subtenants,
employees, invitees and licensees with respect to the retail units.
1.9 Vehicles. "Vehicles" shall mean those automobile, passenger
vans, light -duty pick-up trucks and motorcycles which are owned, leased and/or operated
by the Office Users and the Residential Users, respectively,
875677 A USF
2. Grants of Reciprocal Easements.
2.1 Office Owner hereby grants to Residential Owner (a) a non-
exclusive easement to use the Office Property Parking Stalls during Non -Office Hours for
purposes of parking the Residential User's and Retail Users' Vehicles, (b) a non-
exclusive easement for purposes of vehicular ingress and egress of the Residential User's
and Retail Users' Vehicles over the Office Property Easement Area, (c) a non-exclusive
easement for purposes of pedestrian and bicycle access for the Residential User's and
Retail Users over the Office Property Easement Area and (d) a non-exclusive easement
for use of the basketball court for the Residential Users in the Office Property Easement
Area; provided, however, that with respect to those portions of the Office Property
Easement Area shown as "pedestrian easement" on Exhibit B hereto, only pedestrian
access will be permitted on such portions and provided, further, that Residential Owner
shall have no right to use any of the Office Property Parking Stalls until the Residential
Project has been completed. Additionally, in no event shall any of the underground
parking stalls located on the Office Property be deemed to be included within the "Office
Property Parking Stalls," and Residential Owner acknowledges and agrees that
Residential Owner and the Residential Users and Retail Users are not granted or
otherwise given any right, title and interest with respect to such underground parking
stalls pursuant to this Agreement.
2.2 Residential Owner hereby grants to the Office Owner (a) a non-
exclusive easement to use up to Fifty-seven (57) unreserved Residential Property
Podium Parking Stalls during Office Hours for purposes of parking the Office Users'
Vehicles, (b) a non-exclusive easement to use 53 surface Residential Property Surface
Parking Stalls during Office Hours for purposes of parking the Office Users' Vehicles;
(c) a non-exclusive easement for purposes of vehicular ingress and egress of the Office
Users' Vehicles over the Residential Property Easement Area and (d) a non-exclusive
easement for purposes of pedestrian and bicycle access for the Office Users over the
Residential Property Easement Area; provided, however, that with respect to those
portions of the Residential Property Easement Area shown as "pedestrian easement" on
Exhibit B hereto, only pedestrian access will be permitted on such portions. Office
Owner acknowledges and agrees that the Office Users shall not park, at any time, in the
one hundred and forty one (141) Residential Property Podium Parking Stalls that have
been reserved for exclusive residential use.
2.3 The purposes and uses described in Sections 2.1 and 2.2 above are
collectively referred to herein as the "Easement Uses". Each of the Office Owner and
Residential Owner shall be entitled to use and enjoy the Office Property Easement Area
and Residential Property Easement Area, respectively, for any purpose or use which does
not unreasonably interfere with the other owner's ability to use such easement area for its
respective Easement Uses.
3. Term. Subject to Section 7 below, this Agreement shall continue in full
force and effect in perpetuity.
875677 vl 1/SF
4. Maintenance and Repairs.
4.1 Maintenance by Office Owner and Residential Owner. Subject
to Section 4.3 below, the Office Owner and Residential Owner shall periodically inspect,
maintain and repair the Office Property Easement Area and Office Property Parking
Stalls and Residential Property Easement Area and Residential Property Parking Stalls,
respectively, to ensure the safe, lawful and reasonable operation of such easement areas
and parking stalls, including without limitation (a) maintaining, repairing and periodically
repaving and/or resurfacing (when reasonably required the foregoing easement areas, (b)
regularly sweeping and cleaning such easement area to remove dirt and litter, (c)
maintaining and replacing landscaping and irrigation systems and (d) ensuring that any
lighting is in good working order. The Office Owner and Residential Owner shall have
no obligation to inspect the Office Property Parking Stalls and Residential Property
Parking Stalls, respectively, to determine if such stalls are being misused or to enforce or
otherwise remedy any such misuse. Subject to Section 4.3 below, all costs and expenses
relating to the improvement, use, inspection, maintenance, repair, reconstruction, or
replacement of such easement areas and parking stalls shall be borne solely by the owner
on whose property such easement area and stalls are located, without reimbursement
from the other owner. All real property taxes and assessments for the Office Property
(including, without limitation, the Office Property Easement Area and Office Property
Parking Stalls) and the Residential Property (including, without limitation, the
Residential Property Easement Area and Residential Property Parking Stalls) shall be
borne solely by the Office Owner and Residential Owner, respectively, and each such
owner shall pay promptly all such taxes and assessments when due. Each owner shall
give the other owner at least fourteen (14) days prior written notice of any such
improvement, inspection, maintenance, repair, reconstruction, or replacement of any
easement area or parking stalls except in the event of a bona fide emergency, in which
event whatever notice is reasonable under the circumstances shall be given.
4.2 Maintenance by the Other Owner. The Office Owner and
Residential Owner shall have the right to inspect the Residential Property Parking Stalls
and Office Property Parking Stalls, respectively, to determine if such stalls are being
misused and to enforce and otherwise remedy any misuse of such stalls. Additionally, if,
at any time, the Office Owner or Residential Owner should fail to perform any of its
obligations under Section 4.1 above (a "non -performing owner"), then the other owner
shall provide such non -performing owner with written notice thereof. The non-
performing owner shall thereafter use commercially reasonable efforts to cure any such
failure within fourteen (14) days of its receipt of such notice. If the non -performing
owner fails to cure any such failure within such fourteen (14) day time period, then the
other owner shall have the right, but not the obligation, to immediately inspect, maintain,
repair, reconstruct and replace the Office Property Easement Area and Office Property
Parking Stalls or the Residential Property Easement Area and Residential Property
Parking Stalls, as the case may be, to ensure the safe, lawful and reasonable operation of
such easement area and parking stalls; provided, however, if such cure is one that will
reasonably require more than fourteen (14) days to cure, then such other owner shall not
875677 vl IJSF
have the right to inspect, maintain, repair, reconstruct and replace the Office Property
Easement Area and Office Property Parking Stalls or the Residential Property Easement
Area and Residential Property Parking Stalls, as the case may be, if the non -performing
owner commences cure within such fourteen (14) day period and diligently prosecutes
the cure to completion within a commercially reasonable period. Within thirty (30) days
of written request, the non -performing owner shall reimburse the other owner for any
reasonable costs and expenses actually incurred by the other owner in inspecting,
maintaining, repairing, reconstructing and replacing any portion of such easement area
and parking stalls pursuant to this Section 4.2. Any inspection, maintenance, repair,
reconstruction or replacement of the Office Property Easement Area and Office Property
Parking Stalls or the Residential Property Easement Area and Residential Property
Parking Stalls, as the case may be, by the other owner shall be performed in a manner
which minimizes any disruption to any operations on the non -performing owner's
property. In the event the non -performing owner fails to reimburse any such costs and
expenses with such thirty (30) day period, from and after such period the non -performing
owner shall additionally be obligated to pay the other owner interest on any unreimbursed
costs and expenses in the amount of five percent (5%) per annum.
S. 'Damage to Easement Area. If either the Office Owner (or the Office
Users) or the Residential Owner (or the Residential Users or the Retail Users) (here, an
"Injuring Party") should damage or destroy any portion of the Residential Property
Easement Area (or Residential Property Parking Stalls) or Office Property Easement
Area (or Office Property Parking Stalls), the Injuring Party shall, at the election of the
other party, either (a) repair, reconstruct or replace such damaged or destroyed portion of
such easement area or parking stalls (at the Injuring Party's sole cost and expense) or (b)
reimburse such party upon demand for all reasonable costs and expenses actually
incurred by such party in repairing, reconstructing or replacing such damaged portion of
such easement area or parking stalls.
6. Covenants of the Parties.
6.1 Mechanic's Liens and Removal of Liens. Each of the Office
Owner and Residential Owner shall keep the Office Property Easement Area and
Residential Property Easement Area free and clear of all design professional's,
mechanic's or materialmen's liens which may arise out of any installation, improvement,
use, inspection, maintenance, repair, reconstruction, or replacement of such easement
area or the parking stalls thereon or out of the Easement Uses or any other activities or
work on such easement area by such owner. To the extent any such liens are recorded
against the either of the foregoing properties, the party responsible for the imposition of
the lien shall cause such lien to be released and removed within fifteen (15) days of
knowledge or being served notice of such filing and/or recording, either by satisfaction or
by the posting of a release bond in the amount required by statute.
6.2 Insurance. At all times during the term of this Agreement, each of
the Office Owner and Residential Owner shall obtain and maintain commercial general
liability insurance covering the Office Property Easement Area and Residential Property
875677 vl l/SF
Easement Area, respectively, and Easement Uses from a company and in form and
substance reasonably satisfactory to the other in an amount of not less than Two Million
Dollars ($2,000,000) per occurrence, naming the other (and its lenders and any other
persons reasonably designated in writing by such party) as an additional insured, and
requiring at least thirty (30) days written notice prior to any cancellation, material
amendment or reduction of such insurance coverage. Such insurance shall be primary
and non-contributing with any other insurance policies maintained by the other party.
Prior to using the easement area and parking stalls on the other owner's property, the
Office Owner and Residential Owner, as the case may be, shall deliver to the other owner
a certificate of insurance reasonably acceptable to such other owner evidencing such
insurance coverage.
6.3 Indemnification. Each party to this Agreement agrees to
indemnify, defend and hold the other party to this Agreement and its respective officers,
directors, shareholders, partners, managers, members, affiliates, guarantors, customers,
guests, tenants, contractors (of any tier), agents, representatives, employees, invitees,
licensees, mortgagees, successors and assigns (collectively, "Agents") harmless from and
against any and all claims, actions, causes of action, demands, damages, costs, liabilities,
losses, judgments, expenses or costs of any kind or nature whatsoever (including, without
limitation, attorneys' fees) by reason of property damage, death or injury to persons
arising from or relating to the indemnifying party's installation, improvement, use,
inspection, maintenance, repair, reconstruction, and replacement of the easement area and
parking stalls thereon, except and to the extent that such death, injury or property damage
arises from the negligence or other fault of the other party to this Agreement or its
Agents.
7. Termination Upon Rezoning. If at any time the City of Cupertino
approves the rezoning of all or any portion of the Office Property, then all of the
easements granted by Office Owner to Residential Owner over the Office Property
Easement Area shall terminate effective as of such approval. Residential Owner
covenants and agrees to promptly execute, acknowledge, deliver and record any
quitclaim, release or other document necessary to cause the foregoing easements to be
released as an encumbrance on title of the Office Property.
g. No Public Dedications. Nothing in this Agreement is intended to be or
shall be deemed or construed to be a gift or dedication of any portion of the Office
Property, Office Property Easement Area, Residential Property or Residential Property
Easement Area for any public use.
9. Notices. Any notice, consent, approval or request for consent required or
permitted to be given under this Agreement shall be given in writing and shall be
effective (i) if personally delivered, upon delivery or refusal to accept such delivery; or
(ii) if mailed, three (3) days after mailing, by United States registered or certified mail,
postage pre -paid, return receipt requested, to the applicable address set forth below:
875677 vi 1/5F
If to CFCP: Cupertino Financial Center Partners LLC
490 California Avenue, 4`h Floor
Palo Alto, CA 94306
Attention: Henry D. Bullock
Richard J. Holmstrom
If to Residential Owner: Cupertino Housing Partners LLC
490 California Avenue, 41h Floor
Palo Alto, CA 94306
Attention: Henry D. Bullock
Richard J. Holmstrom
The foregoing addresses and addressees may be changed by giving notice of such change
in the manner provided for in this Section 9.
10. Binding Effect and Governing Law. This Agreement and all covenants
and restrictions contained herein shall, to the fullest extent permitted by law and equity
and without regard to technical classifications or designations, be deemed to be covenants
running with the land of the Office Property and the Residential Property, and shall be
binding upon and inure to the benefit of the parties hereto and their respective successors -
in -title. This Agreement is made with the intent of satisfying Section 1468 of the
California Civil Code. This Agreement shall be governed and construed in accordance
with the laws of the State of California. Notwithstanding any provision of this
Agreement, from and after the earlier of the sale, lease, transfer or other disposition of
any portion of Residential Property to a party unrelated to CHP, only an owners'
association (or in the event of a lease, then only the successor -in -title to the entire fee
interest in the applicable property) with respect to such property shall have the right to
enforce and amend the,provisions of this Agreement on behalf of the Residential
Property, and any purchaser, lessee or other transferee of such portion of such parcel shall
have no right to enforce or amend the provisions of this Agreement.
11. Entire Agreement. This Agreement, including the recitals and Exhibits
A, B, and C attached hereto, all of which are incorporated herein,by this reference,
constitutes the entire agreement between the parties with respect to the grant of easement
hereunder and supersedes, amends and restates the Original Reciprocal Easement in its
entirety.
12. Amendments. Subject to Section 10 above, this Agreement may be
amended, modified or supplemented only by a written document executed by all of the
parties hereto (or their successors -in -title).
13. , Mortgagee Protection. No violation or breach of the terms and
conditions of this Agreement shall affect or impair the liens or security rights of the
holder of a Mortgage (as hereafter defined) given in good faith and for value which is
now or in the future recorded against the Office Property or Residential Property. With
respect to any Mortgage recorded against either of such properties subsequent to the
875677 vi 1/SF
recording of this Agreement such mortgagee or any purchaser at a foreclosure sale
resulting from such mortgage or other party taking title to such property shall take subject
to this Agreement and the terms and conditions set forth herein. The term "Mortgage"
shall mean any duly recorded mortgage or deed of trust encumbering the Office Property
or Residential Property, as the case may be.
14. No Third Party Beneficiaries. This Agreement is only for the benefit of
the parties hereto and their successors -in -title as set forth in Section 10 above. Except as
set forth in Section 6.3 above, no other person or entity or property shall be entitled to
rely hereon, receive any benefit herefrom or enforce any provision hereof against any
party hereto (or their respective assigns and successors -in -title).
15. Severability. If any one or more of the provisions contained in this
Agreement is for any reason held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
875677 vl I/SF
f,
IN WITNESS WHEREOF, the parties have executed this Reciprocal Easement and
Maintenance Agreement as of the date first above written.
"CFCP" CUPERTINO FINANCIAL CENTER PARTNERS LLC,
a California limited liability company
By: Menlo Equities LLC,
a California limited liability company
Manager
By: Menlo Equities, Inc.,
a California corporation,
Managin tuber l
By: V
Henry D. Bullock
President
"CHP" CUPERTINO HOUSING PARTNERS LLC,
a California limited liability company
By: Menlo Equities Development Company 1V LLC,
a California limited liability company,
Manager
By: Menlo Equities III LLC,
a California limited liability company,
Manager
By: Menlo Equities LLC,
a California limited liability company,
Managing Member
By: Menlo Equities, Inc.,
a California corporation,
Managin ember
By:
Henry D. Bullock
President
875677 v111SF
..e r
State of California
,y.�j� ss.
County of �V►V�
On 1DI. 2QC C efore me, Y M1 0—
oate A 1 n ... _ r r-.. 1'$" and_ Tjje of OTar (a p , 'Jana Doe, Notary PuWj
personally appeared
Name(s) of Sgmgs)
tr
rsonally known to me
oved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/are
subscribed to the within Instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument,
WITeSkyhen"IT1111
le,V""i-'
Somme of Notary Public
tl
OPTIONAL
Though the informadbn below is not required bylaw, it may prove valuable to persons retying on the document and could prevent
fraudulent removal and reattachment of thrs form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: _JU.vte 1, 2.005
Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Off leer — Ttle(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
c
Number of
RIGHT THUMBPRINT:
OF SIGNER
O 1999 Na4onal NotaryASsoaawn • 9350 De Soto Ave . PO Box 2402 - Chatsworth, CA 91313.2402 • www ratgaalrWAy orp Prod. No $907 Reorder Cell TIXFFt" 1-800-878-6a27
EXHIBIT A
To
AMENDED AND RESTATED
RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of
California, described as follows:
Being all of Parcel A, as shown on that certain Parcel Map, filed May 41h 2004 in Book 769 of
Maps at Pages 42 through 44 inclusive, Records of Santa Clara County.
Containing an area of 4.40 acres, more or less.
Being a portion of Assessor's Parcel Number: 316-20-084
4„1
3AIVI►FUM103a
EXHIBIT B
To
AMENDED AND RESTATED
RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
13 ORTIN I I a I IL
875677 A IJSF
EXHIBITC
To
AMENDED AND RESTATED
RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
All that certain real property situated in the City of Cupertino, County of Santa Clara, State of
California, described as follows:
Being all of Parcel B, as shown on that certain Parcel Map, filed May 4, 2004 in Book 769 of
Maps at Pages 42 through 44 inclusive, Records of Santa Clara County.
Containing an area of 3.34 acres, more or less.
Assessor's Parcel Number: 316-20-087
875677 vl USF
NOTICE: SUBORDINATION 1, RESULTS 1 LIEN
YOU HAVE ON THE DESCRIBED IN
EXHIBIT1 :1 TO THE FOREGOING1 1 1' AND
RESTATED RECIPROCAL i 1 MAINTENANCE
AGREEMENT ("REA") BECOMING 1 1 ,/
LOWER PRIORITY ITHE RIGHTS OF, CUPERTINO
HOUSING' 1 THE RESIDENTIAL
DEFINEDSUCH TERMS ARE IN THE REA) UNDER THE
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, :,
UNION BANK OF CALIFORNIA, N.A. ("Lender"), acting for itself as beneficiary under that
certain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing,
executed by Cupertino Financial Center Partners LLC, a California limited liability
company, as trustor, for the benefit of Lender, as beneficiary, dated December 11, 2000,
and recorded in the Official Records of the County Recorder of Santa Clara County,
California, on December 14, 20M, as Instrument No. 15494831 (the "Deed of Trust"),
hereby intentionally, unconditionally and irrevocably subordinates the lien of its Deed of
Trust, subject to the terms and provisions of the REA, including, without limitation, the
effect of any breach or default under the REA on the lien of the Deed of Trust, and to the
rights of Cupertino Housing Partners LLC and the Residential Users thereunder.
IN WITNESS WHEREOF, Lender has executed this Subordination Agreement as of
this day of June, 2005.
UNION BANK OF CA O , N.A.,
By:
Its:
N
875677 vII/SF
STATE OF CALIFORNIA )
ss.
COUNTY OF
On��-y . �Z , 2005, before me, Lyl Notary Public, personally
appedred G.* , rsonally known to me (or proved to me on the basis of
satisfactory evidence) to be t e person(e-vhose named isfare subscribed to the within
instrument and acknowledged to me that hehhefthey executed the same in higAwf4he4r authorized
capacity(ies), and that by hisf#eef 4v6r signatures) on the instrument the person(s)—,& the entity
upon behalf of which the persons) -rated, executed the instrument.
Witness my hand and official seal.
lgna re olNotary Public
0
I_UIZA PERPEfUO K
COMM. # 1460113
NOTARY PUBLIC-CALIFORNIA
CONTRA COSTA COUNTY 0
COMM. EXP. JAN. 3, 2008 a
875677 v1 I/SF
SUBORDINATION AGRE
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN THE LIEN
YOU RAVE ON THEREAL PROPERTY DESCRIBED
EXHIBITt 1 TO THE FOREGOINGI i 1 AND
RESTATED RECIPROCAL EASEMENT1 MAINTENANCE
AGREEMENT BECOMING 1 AND 1;
LOWERPRIORITY 1RIGHTS 1; CUPERTINO
FINANCIAL CENTER PARTNERS LLC 1 THE OFFICE USERS
r' TERMS AREDEFINED IN THE'EA) UNDER THE
REA.
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
MID -PENINSULA BANK, a part of Greater Bay Bank, N.A. ("Lender"), acting for itself as
beneficiary under that certain Construction Deed of Trust, Security Agreement, and
Fixture Filing (With Assignment of Rents and Leases), executed by Cupertino Housing
Partners LLC, a California limited liability company, as trustor, for the benefit of Lender,
as beneficiary, dated July 20, 2004, and recorded in the Official Records of the County
Recorder of Santa Clara County, California, on July 29, 2004, as Instrument No.
17924508 (the "Deed of Trust"), hereby intentionally, unconditionally and irrevocably
subordinates the lien of its Deed of Trust, subject to the terms and provisions of the REA,
including, without limitation, the effect of any breach or default under the REA on the
lien of the Deed of Trust, and to the rights of Cupertino Financial Center Partners LLC
and the.Office Users thereunder.
IN WITNESS WHEREOF, Lender has executed this Subordination Agreement as of
this W day of June, 2005.
MID -PENINSULA BANK, part of Greater Bay
Bank N.A.
Lo
Senior Vice President
875677 vl I/SF
State of California
County of AMn 6,14M
ss.
On 100 13� o2pOS ,before me, Hal (• I,G�Z, A07AIQ� {�ilt9L/G
Date Name and Title of Officer (e.g, "Jane Doe, Notary Pubbel
personalty appearedy�� I�G� ,
Namois) of Signor(r)
ROMEQ C IUZ
COfYtVY 3510n a I SOA893
I*
w Notary Public • California
Santa Clara County
My Comm, Expires Aug 1, 2t)M8
❑ personally known to me
A proved to me on the basis of satisfactory
evidence
to be the person(Q whose namef&) is/%e
subscribed to the within instrument and
acknowledged to me that he/sloe/thpy executed
the same in his/hor/thOr authorized
capacity(ies), and that by his/tNr/tfNir
signature() on the instrument the person,(, or
the entity upon behalf of which the person,
acted, executed the instrument.
WITNESS my hand and official seal.
-AAIM AA
IF I L411V �, -
Place Notary Seal Above slqnalureol 11bo Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of
Title or Type of C
Document Date.
Signer(s) Other Than Named Above: _
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual °
Top of thumb here
Cl Corporate Officer — Tftie(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 1999 Nabond Notary Asscaabon • M 0e Soto Ave , P 0 9oK 2402 • Chatsworth, CA 91313-2492 • www notionalno" org Prod No 59o7 Reorder- Call TOC.Prae 1 �80()876-6927
l—
ACKNOWLEDGMENT
State of California
County of
On
before me,
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
LIBD/2364838.6
(Seal)
a