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.02 M-2010-08 Jane Vaughan OFFICE OF COMMUNITY DEVELOPMENT � � ' CTTY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 (408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org GUPERTINO PLANNING COMMISSION STAFF REPORT Agenda Item No. 2- Agenda Date: December 14, 2010 Application: M-2010-08 Applicant: Jane Vaughan (Cupertino Housing Partners, LLC) Location: 19501-19507 Stevens Creek Boulevard (APN 316-49-999) APPLICATION SUMMARY Amendment to a Modification application (M-2010-03) of a previously approved Use Permit (U-2003-04) to amend Condition No. 2(Parking) to allow the parking requirements to be incorporated into an appropriate alternate legal document in lieu of the coven�nts, conditions and restrictions (CC&Rs). RECOMMENDATION Staff recommends that the Planning Commission recommend that the City Council approve the proposed amendment in accordance with the Model Resolution (See Attachment 1). BACKGROUND On October 5, 2010, the City Council approved a Modification (M-2010-03) to a previously approved Use Permit (U-2003-04) and Exception to the Heart of the City Specific Plan (EXC-2010-03) to allow the following: 1. Up to 40 % of the total retail space as non-retail restricted to Building B(19501 Stevens Creek Boulevard); and 2. Allow medical use as a non-retail use, with staff to work with the applicant to determine the correct parking count for surface parking and underground parking to accommodate medical use. One of the conditions (Condition No. 2) associated with M-2010-03 also requires that the CC&Rs of the de�elopment be amended and recorded to require that employees of the retail commercial uses park in the existing available and unused parking spaces in the underground parking garage, and that such parking must be striped for retail use only. (Please see Attachment 2, City Council Action Letter dated October 7, 2010 for additional details.) 2-1 M-2010-08 Metropolitan Complex December 14, 2010 Page 2 The applicant, however, is requesting an amendment to this condition to allow an alternate legal document to be recorded on the property that memorializes this parking requirement, rather than in the CC&Rs. The proposed amendment will not result in any physical or use changes in the development. DISCUSSION The applicant (See Attachment 3, Applicant's Justification Letter) states that the CC&Rs is not the appropriate instrument to regulate the retail parking requirements since the shared parking in the parking garage is controlled via an easement, not by the CC&Rs. Additionally, the applicant notes that changing the CC&Rs would be difficult because it would require the approval of all 107 residential unit owners and their lenders as members of the homeowners' association of the development. In lieu of incorporating the parking requirements into the CC&Rs, the applicant is requesting the modification to allow the parking requirements to be incorporated and recorded in a Parking License Agreement for each retail building (See Attachments 4 and 5, Draft Parking License Agreements), which includes Building A located at 19505 Stevens Creek Boulevard and Building B located at 19501 Stevens Creek Boulevard. The proposed changes to the Condition No. 2 are outlined as follows (the underlined language represents the newly proposed language, and the strikethrough represents the proposed deleted language): 2. PARKING Employees of the commercial spaces shall be required to park in the existing available and unused parking spaces in the underground parking garage of Building B that were originally designed for use by the office complex. No more than seven (7� of these spaces may be used to accommodate employee parking for the commercial spaces with the provision that such parking spaces are to be striped for commercial employee parking only to ensure that the surface parking is made available to customers of the commercial uses only, and that these requirements will be incorporated into an a�propriate legal document as deemed acceptable by the Cit� Attorn� and Director of Community Development }'�� r'r''�-T'�. The City Attorney has reviewed and supports the attached draft Parking License Agreements to fulfill the requirements of the proposed amended condition. However, since the City is not a party to the Parking License Agreements (as would have been the case in the CC&R option), the City Attorney is recommending an additional condition requiring the -property owner to provide advance notice of proposed changes to the Parking License Agreement, as well as a copy of any document recorded in the future related to parking. This is reflected in Condition No. 3 of the Model Resolution. Follow up on the Department of Real Estate Notcfication Condition As part of the conditions of approval for M-2010-03, the Council required that the applicant work with staff to reconcile paperwork that notifies the Department of Real 2-2 M-2010-08 Metropolitan Complex December 14, 2010 Page 3 Estate that the City recognizes there are only two retail condominium units, consisting of the retail Building A and Building B. To comply with this requirement, the applicant has submitted draft Declarations of Restrictive Covenants (See Attachments 6 and �, one for each building, for the City's review that the applicant will record and send to the Department of Real Estate with a cover letter. These restrictive covenants clarify the number of retail spaces in each building, and that retail spaces in each building must be owned by the same owner. The covenants make it clear that separate retail spaces in each retail building cannot be owned by different property owners since each retail building is considered one retail condominium unit. ENVIRONMENTAL REVIEW This project is categorically exempt per Section 15301 (Existing Facilities) of the California Environmental Quality Act (CEQA) since no physical or use changes will occur as a result of this project. Prepared by Aki Honda Snelling, AICP, Senior Planner Reviewed by: Approved by: �— G ao arti Shrivastava City Planner Community Development Director ATTACHMENTS Attachment 1 Model Resolution Attachment 2 October 5, 2010 City Council Action Letter Attachment 3 Applicant's Justification Letter Attachment 4 Parking License Agreement for Building A Attachment 5 Parking License Agreement for Building B Attachment 6 Declaration of Restrictive Covenant for Building A Attachment 7 Declaration of Restrictive Covenant for Building B G:Planning/pdreport/pcMreports/2010Mreports/M 2-3 Attachment 1 M-2010-08 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 MODEL RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF AN AMENDMENT TO A MODIFICATION APPLICATION (M-2010-03) OF A PREVIOUSLY APPROVED USE PERMIT (U-2003-04) TO AMEND LANGUAGE IN A PARKING CONDITION FOR RETAIL SPACES AT 19501-19507 STEVENS CREEK BOULEVARD (METROPOLITAN) SECTION I: PROTECT DESCRIPTION Application No.: M-2010-08 Applicant: Jane Vaughan (Cupertino Housing Partners, LLC) Location: 19501-19507 Stevens Creek Boulevard (APN 316-49-999) SECTION II: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for an amendment to a Modification application (M-2010-03) of a previously approved Use Permit (U-2003-04), as described in this Resolution; and WHEREAS, the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held one or more public hearings on this matter; and WHEREAS, the Planning Commission finds the following with regards to this application: a) The proposed project, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; b� The proposed project will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and Heart of the City Specific Plan. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the amendment to the modification of the use permit is hereby recommended for approval subject to the conditions which are enumerated in this Resolution. SECTION III: CONDITIONS AUMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. PREVIOUS CONDITIONS OF APPROVAL All prior modification and use permit conditions of approval (M-2010-03 and U-2003-04) shall remain in effect unless superseded by or in conflict with the conditions of approval herein. 2. PARKING Employees of the commercial spaces shall be required to park in the existing available and unused parking spaces in the underground parking garage of Building B that were originally designed for use by the office complex. No more than seven (� of these spaces may be used to accommodate employee parking for the commercial spaces with the provision that such parking spaces are to be 2-4 Model Resolution M-2010-OS December 14, 2010 Page 2 striped for commercial employee parking only to ensure that the surface parking is made available to customers of the commercial uses only, and that these requirements will be incorporated into an appropriate legal document as deemed acceptable by the City Attorney and Director of Community Development. 3. ADVANCE NOTICE REQUIREMENTS Advance notice of any proposed changes to the Parking License Agreement or any alternate legal document related to parking shall be submitted to the City for review prior to recordation on the property. The applicant and any subsequent property owners shall be required to provide the City with a copy of any document recorded in the future related to parking. 4. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. That the subconclusions upon which the findings and conditions specified in this Resolution are based are contained in the Public Hearing record concerning Application M-2010-08, as set forth in the Minutes of the Planning Commission Meeting of December 14, 2010 and are incorporated by reference herein. PASSED AND ADOPTED this 14th day of December 2010, at a Regular Meeting of the Planning Commission of the City of Cupertino by the following roll call vote: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: Aarti Shrivastava Paul Brophy, Chair Director of Community Development Planning Commission G: /Planning/PDREPORT/RES/2010/M-2010-08 res.doc 2-5 � � � Attachment 2 i � � � ; i � ; ; � ' OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE � CUPERTINO, CA 95014-3255 C U P E RT I N O TELEPHONE: {408) 777-3223 • FAX: (408) 777,-3366 � October 7, 2010 i � Jane Vaughan I . Cupertino Housing Partners, LLC ' c/o Menlo Equities � � 490 Califomia Ave., 4th Floor � Pato Alto, CA 94306 . � � Re: Modification of an existing mixed-use development located at 19501-19507 Stevens Creek ; Boulevard (Metropolitan) ; Dear Ms. Vaughan: � � At its October 5, 2010 meeting, the Gupertino City Council made the following action: ; • Approved a negative declaration • Approved modification to the use permit (M-2010-03) and exception to the Heart of the � City Plan (EXC-2010-03) with the followi.ng conditions: � o To allow up to 40% of the total retail space as non-retail restricted to building B � o If the non-retail is a medical use, the applicant and City staff will work together � , to determine the correct parking count for surface parking and underground f f � p �.� g � � Denied the tenta.tive map (TM-2010-03} and directed the applicant to work with staff to � reconcile the Department of Real Estate paperwork with the original approval, which gave them two retail condos � . ' The modification to the use pezmit conditions are as follows unless amended above: ; SECTION III• CONDITIONS ADMIlVISTERED BY THE COMMUNITY DEVELOPMENT � � DEPT. . . _ � I 1. MODIFICATION TO USES ALLOWED ' a. Non-retail commercial uses may occupy a maximum of 60% (3 of the 5 existing tenant � spaces) of the 6,400 square foot retail space along Stevens Creek Boulevard and shall be limited to Building B. Buildi.ng A(the remaini.ng 40% of the commercial space) sha11 � remain for retail uses only. b. No more than two of the non-retail units in Building B(40% of the total retail space) shall be pernutted to be occupied by medical office use; the remairung unit in Building B may be ' occupied by a non-retail use as long as the parking requirements can be met. � ; 2-6 . r c. Non-retail commercial units shall have the flexibility to also be used for retail commercial uses. ; 2. PARKIl�G Employees of the commercial spaces shall be required to park in the existing available and unused parking spaces in the underground parking garage of Building B that were originally ' � designed for use by the office complex. No more than seven (7) of these spaces may be used to I � accommodate employee parking for the commercial spaces with the provision that such parking spaces are to be striped for commercial employee parking only to ensure that the surface parking is made available to customers of the commercial uses only, and that these requirements will be incorporated into the CC&Rs. 3. COVENANT RECORDATION A covenant shall be submitted for review and approval by the City and shall be recorded on the � property, stating that this property is under a Planned Development Zone of the Gity of ; Cupertino. Purchasers of the property are advised to check with the City of Cuperti.no to find � out the�specific restrictions under the Planned Development Zone and related permits. � , . i The covenant shall be recorded prior to issuance of final occupancy of the vacant tenant space. 4. N OTICE OF FEES DEDICATIONS RESERVATIONS OR OTI-�R EXACTIONS I The Conditions of Project Approval set forth herein may include certain fees, dedication ' . � requirements, reservation requirements, and other exactions. Pursuant to Government Code � . Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of � ; such fees, and a description of the dedications, reservations, and other exactions. You are � � ; hereby further notified that the 90-day approval period in which you may protest these fees, , E dedications, reservations; and other exactions, pursuant to Government Code Section 66020(a), � , has begun. If you fail to file a protest within this 90-day period complying with all� of the � � requirements of Section 66020, you will be legally barred from later challenging such exactions. That the subconclusions upon which the findings and conditions specified in this Resolution are � � based are contained in the Public Hearing record concerning Application M-2010-03, as set forth in ; the Minutes of the Planiiing Commission Meeting of September 28, 2010 and are incorporated by E reference herein. f . I • i 2-7 ' The Exception to the Heart of the City conditions are as follows unless amended above: ' SECTION III: CONDITIONS ADMIl�iISTERED BY THE CONIlVIUNITY DEVELOPMENT ' DEPT. � 4. EXCEPTION TO THE HEART OF THE CIT� SPECIFIC PLAN a. Non-retail commercial uses may occupy a maximum of 60% (3 of the 5 existing tenant spaces) of the store frontage of the 6,400 square foot retail space along Stevens Creek Boulevard and shall be limited to Building B. Building A(the remaining 40°/a of the � commercial space) shall remain for retail uses only. b. Non-reta.il commercial units shall have the flexibility to also be used for retail commercial � •uses. . � � � 2. NOTICE OF FEES DBDICATIONS RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, ; . ; dedications, rese:vations, and other exactions, pursuant to Governm.ent Code Section 66020(a),� � � � has begLU1. If you fail to file a protest within tlus 90-day period complying with all of the ! requirements of Section 66020, you will be legally barred from later challenging such exactions. � That the subconclusions upon which the findings and conditions specified in this Resolution are � based are contained in the Public Hearing record concerriing Application EXC-2010-03, as set forth i in the Minutes of the Planning Commission Meeting of September 28, 2010 and are incorporated by � refer.ence herein. . Please review conditions carefully. If you have any questioris regarding the conditions of approval, �please contact the Department of Community Development at 408-777-3308 for clarification. Failure to incorporate conditions into your ptan set will result in delays at the � plan checking stage. If development conditions require tree preservations, do not clear the site until required tree protection devices are installed. � � . � Tlze co�:ditiofis of project approval set forth het•ein may include certain fees, dedication requirements, reservation requirements, and otlter exactior:s. Pursuant to Govern»zent Code ; Section 66020(d)(1), tltese conditions co��.stitute written �rotice of a staiement of tl:e mnou�zt of such fees, a�zd a descriptio�t of. fl:e dedicatio�is, rese'rvatio�is, and otlier exactions. You are - Jzereby furilter notified t1:at tlie 90-day approval period in w/ziclz you may protest tltese fees, . � ; dedicatzons, and other exactions, pursua�:f to Gover�:ment Code Section 66020(a), lias begurx. If � 2_8 � you fail to file a protest witlain tltis 90-day period complying witf: all of the requirements of Section 66020, you will be legally barred from later cl:allenging suclz exactiv�rs. Any interested person, including the applicant, prior to seeking judicial review of tfie city council's decision in thrs matter, must frsf file a petition for reconsideration with the city clerk � within ten days after the council's decision. A�:y petition so filed must comply witlt mu�xicipal ordinance code §2.08.096. , � This letter will serve as your final Use Pernut. ; Sincerely; . ; � . � - , Grace Schmidt ! f Deputy CiTy Clerk cc: Community Development ; � � ; I � I ' � � __ . • I , . I I I � • ; 2-9 Attachment 3 x �� : Date: November 22, 2010 From: Jane Vaughan To: Aki Honda, City of Cupertino Regarding: Metropolitan at Cupertino Retail Units — Modification to Use Permit, approved on 10/5/10, language: Section III, 2. Parking: "incorporated into the CC&Rs" to be changed to "documented satisfactorily." On October 5, 2010 the Cupertino City Council approved modifications to the 5 retail units at Metropolitan at Cupertino, as outlined in the City letter dated October 7, 2010, attached hereto. � � � � � � Ft—U-101A R—U-1C2A R—U-10�8 R—U-1tY.tB R-U-1038 R—PA—A R—PA—B 19505 Stevens Creek Building A _ _ 19501 Stevens Creek Building B The City of Cupertino approved the additional zoning of non-retail use in the three (3) retail units in Building B at 19501 Stevens Creek or 60% of the total retail units at Metropolitan at Cupertino. Two (2) of the three retail units in Building B can be occupied by medical uses. The remaining Building B unit can also be occupied by medical use if the parking requirements are met. All five retail units continue to permit retail commercial uses. Parking requirements were to be resolved by staff and the applicant. Additional parking requirements needed for the medical use was agreed upon as follows: • There shall 25 retail surface spaces marked as shown in the following diagram. • The adjacent office project controls 57 parking spaces during office hours within the residential parking garage via an easement (attached). The adjacent office property owner will grant the Metropolitan at Cupertino Building A retail owner the right to use of 2 parking spaces and the Building B retail owner the right to use 3 parking spaces during o�ce hours within the 57 spaces. During non-office hours, all residential and retail property owners are permitted to park in the 57 spaces. 490 California Avenue, 4"' Floor • Palo Alto, CA 94306 •(650) 326-9300 • Fax (650) 326-9333 E-mail: vaughan@menloequities.com 2—�0 • Since the 57 parking spaces are controlled via easement by the adjacent office property owner, not by the HOA or the CC&Rs, the reference in Section I II, Item 2. Parking which requires incorporating this additional parking requirement into the CC&Rs needs to be deleted and replaced with "be documented satisfactorily." The attached License Agreement is to be used. The document will be signed and recorded upon approval of the modification to the language by the City. Note that changes to the Metropolitan at Cupertino CC&Rs are not practical since approval of all 107 residential owners and their lenders would be required. ��j , s '�' � � � � .: �j�' �...__ ..V , � � °"�°° � � � � r �. ,� � � � {�� a € . i �� it X , g: � !.� �! '�. iD :FI � . y . "�>' �""" r ' . L ; , k �'§�. E� . �`X �, ; �: R1C31�k R142A ��' ,x<�� 5..:.� v.�� Fz �`._" R1Q16 R102B R103B . I�I.A �'t,��'"�,, te�r�a�S r - ' �;,� � _.. , � �.. .�� ,�. . _. .. .. . ... . .� . , . ., _ . ..,. , _ _ , ..._ . �. _: _ _.. .. y -:..( ,: �.. . � 1. � * v �. y�.�..�.�� t. < .. . .V. .p .. ) . ..� • � ._...........+e�.�_„e.:T �„•�� . ' y ....� ti� �.. �.........v,...�_.....��._ - .... ................«.. Y.�... e�-d---..- ..�s.....�...h..........�, -.....��. The City also requested that a Covenant be recorded that would restrict the ownership of the retail units to a maximum of 2 retail owners — one in Building A and one in Building B and note that the retail units are subject to a Planned Development Zone. The documentation has been agreed to by staff and the applicant. 490 California Avenue, 4` Floor • Palo Alto, CA 94306 •(650) 326-9300 • Fax (650) 326-9333 E-mail: vaughan@menloequities.com 2-11 Attachment 4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: JENNY CHEUNG 10798 Juniper Court Cupertino, CA 95014 [SPACEABOYE THISLlNE FOR RECORDER'S USE.J LICENSE AGREEMENT (PARKING) THIS LICENSE AGREEMENT (PARKING) ("AgreemenY') is entered into as of December _, 2010 (the "EffecNve Date"), by and between CUPERTINO FINANCIAL CENTER PARTNERS LLC, a Califomia limited liability company ("Licensor"), and JENNY CHEi7NG, an individual ("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 19505 Stevens Creek Boulevard, Building A Units R101A & R102A 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, Cupertino Housing Partners LLC ("CHP") and Licensor, dated as of June 7, 2005, and recorded in the official records of Santa Clara County, Califomia on August 9, 2005 as Document Number 18515790 (the "EasemenY') a copy of which is attached hereto as Exhibit C, CHP granted to Licensor, inter alia, a non-exclusive easement for the use of ftfty-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 terms in the Easement. E. Licensee has requested a license for the use of two (2) Residential Property Podium Parking Stalls (the "Licensed Stalls") for the parking of Vehicles. LIBD/2367539.3 1 • 2-�2 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 LIBD/2367539.3 2 2-13 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 Dedicallons. 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 Califomia Avenue, 4`� Floor Palo Alto, CA 94306 Attention: Henry D. Bullock Richard J. Holmstrom If to Licensee: Jenny Cheung 10798 Juniper Court Cupertino, CA 95014 The foregoing addresses and addressees may be changed by giving notice of such change in the manner provided for in this Section 5. 6. Governing Law. This Agreement shall be govemed 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, the 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 Exliibit 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). 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 pariy hereto. LIBD/2367539.3 3 2-14 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] LIBD/23675393 4 2-15 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 By: Henry D. Bullock President "LICENSEE" JENNY CHEUNG LIBD/2367539.3 5 • 2-16 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 Califomia, described as follows: PARCEL ONE: PARCEL A, AS SHOWN ON THAT CERTAIN MAP ENTiTLED PARCEL MAP, BQNG A SUBDMSION 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-IXCLUSNE FASEMENT 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-IXCLUSIVE 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-IXCLUSNE 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-IXCLUSNE 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-IXCLUSNE 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-IXCLUSNE 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-IXCLUSIVE EASEMENT FOR PRNATE UTILITY PURPOSES OVER THAT PORTION OF PARCEL B DESIGNATED "PRNATE UTILITY EASEMENT' ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE. APN: 316-20-086 LIBD/2367539.3 1 2-17 EXHIBIT B TO NONEXCLUSIVE LICENSE AGREEMENT (PARKING) LEGAL DESCRIPTION AND DEPICTION OF 19505 STEVENS CREEK BOULEVARD [BUILDING A RETAIL UNITS] All of that certain real property located in the City of Cupertino, County of Santa Clara, State of California, described as TWO RETAIL SPACES COMPRISED OF: PARCEL ONE: UNIT NOS. R101A AND R102A, LOCATED IN BUILDING A, AS DEPICTED UPON THAT CERTAIN CONDOMINIUM PLAN FOR METROPOLITAN AT CUPERTINO (THE "PLAN") WHICH PLAN IS ATTACHED AS DCHIBIT A TO THE DECLARATION OF COVENANTS AND RESTRICTIONS ESTABLISHING A PLAN FOR CONDOMINIUM OWNERSHIP FOR MEfROPOLLTAN AT CUPERTINO (THE "DECLARATION") WHICH DECLARATION RECORDED DECEMBER Ol, 2005, AS DOCUMENT N0. 18700161, OFFICIAL RECORDS, AND ANNDCED THERETO AND MADE SUBJECT TO SAID DECLARATION BY THAT CERTAIN DECLARATION ON ANNEXATION MEfROPOLITAN AT CUPERTINO - PHASE 2, RECORDED JUNE 21, 2006, AS DOCUMENT NO. 18983405, 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 ]ANUARY 27TH IN BOOK 780 OF MAPS, AT PAGES 40 AND 41. THE DECLARATION OF COVENANTS AND RESTRICTIONS AND THE DECLARATION OF ANNEXATION MAY HEREINAFfER BE REFERRED TO AS THE "DECLARATION". PARCEL TWO: AN UNDMDED PERCENTAGE INTEREST IN THE BUILDING A- BUILDING COMMON AREA IN WHICH THE CONDOMINIUM UNIT DESCRIBED IN PARCEL ONE ABOVE IS LOCATED, AS DEPICTED ON THE PLAN AND AS DEFINED IN THE DECLARATION, AND AS SAID UNDMDED INTEREST IS SET FORTH IN IXHIBIi' A ATTACHED TO THAT CERTAIN CORRECTIVE AMENDMENT TO DECLARATION OF ANNIXATION, MEfROPOIITAN AT CUPERTINO - PHASE 2, RECORDED NOVEMBER 28, 2006 AS DOCUMENT NO. 19202609, OFFICIAL RECORDS, SANTA CLARA COUNTY. IXCEPTING 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 IXCLUSNE USE COMMON AREAS AS DEFINED IN THE DECLARATION AND THE IXHIBITS ATTACHED THEREfO, AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE DCCLUSNE USE OF THE OWNERS OF CONDOMINIUMS OTHER THAN THE CONDOMINIUM UNIT DESCRIBED IN PARCEL ONE ABOVE. 3. NON-DCCLUSNE EASEMENTS FOR INGRESS, EGRESS, SUPPORT, ENCROACHMENT, USE, ENJOYMENT AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS APPURTENANT TO ALL UN1TS AS SAID EASEMENTS AND RIGHTS ARE DEFINED IN THE DECLARATION. PARCEL THREE: THE IXCLUSNE RIGHT TO THE USE, POSSESSION AND EN]OYMENT OF THE IXCLUSNE USE COMMON AREAS APPURTENANT TO PARCEL ONE ABOVE, AS DEFINED IN THE DECLARATION AND IXHIBITS ATTACHED THERETO AND AS DEPICTED ON THE PLAN WHICH ARE SEf ASIDE AND ALLOCATED FOR THE DCCLUSIVE USE OF THE OWNER OF THE UNIT TO WHICH THEY ARE ATTACHED OR ASSIGNED. PARCEL FOUR: A NON-IXCLUSNE EASEMENT FOR INGRESS AND EGRESS, SUPPORT, ENCROACHMENT, USE, EN]OYMENT AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS AS SHOWN ON THE PLAN AND DEFINED IN THE DECLARATION. MEfROPOLITAN AT CUPERTINO/PH. 2 APN: 316-49-009, as to Unit R101A and 316-49-010, as to Unit R102A LIBD/2367539.3 2 2-18 EXNI�I �A� FlRST FLOOR—F1Q�f2 PLAPI GQI�t?QA�qNpll�t PL.Ai�IS ME7RCPOLITAN A1" GUPERt`!N4 OATED: OCTOBER. 2005 �`a ..,,. .� . � �.. . ,.�. �. . .� ..�. . ..... .�.. . ....p �, � ,.. � . � t m u—izJa u—�ase u-lria u—�� m f � � � � � � u—�za�B u-�a� = 1 u—t� u—t3oe � u—zsse � ' ( COURTYARD 4 ; � � � I � u--„� � �-�� eua.�iWC � . U--� • — –.o � � � ' � � u-ttsa � a, • ' � � � � � ; � I � �—�e � = m � � ' ` u—�� a � � U-10 I U-153B . ECUIPMENT cawe+nw a I ��.�.r� �.. • r w�w� • � �IS�B I � (� � °� t _J L � i i I� � � w � u—�o� ,� � o E ' � � � � � � - � � ' ' ' . BLRLD�!iG A j � � m • '��.� � a � � te-u—,o�,� a�-u�-,aa� �.." � � e�t—scna �u�-�aaa �-v—roae . R-PA-A IF-PA-B � 196tk5 StevenS Creek �,�,�;��d$��. �..� ....�. . �.... �.,. . ..... �. . «w�. ..... . � � K.�su��o3so�s`owc`ccsEwo�srt�r �4.owc SHEET 14 LIBD/23675393 3 2-19 E�BIT C TO NONEXCLUSIVE LICENSE AGREEMENT (PARKING) COPY OF EASEMENT LIBD/2367539.3 1 2-2� ' ' � , DOCUMENT 1851579D Pages� i8 � ' • FiYSt Amer�CaII'Iltle CO�ijx�ny I � � x� �'+SCi�OW N0.: �� 1 � � � � i � + I Taxes , 58. A0 Cop�es �� AMT PAID 58.00 RECORDING REQUESTED BY SRENDA OAV f S RpE � 003 AND WHEN RECORDED MAIL TO : SaNTa CLARa COUfvTY RECORDER g/gg�20g5 Recorded at the request of 8•00 AM COOLEY GODWARD LLP F i rst Amer i can T i t I e Company One Maritime Plaza, 20' Floor San Francisco, California 9411 E Attention: Paul Churchill, Esq. (SPACE AB�VE TNIS 11NE FOR RECORDER'S USE. J AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT THIS AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANC� AGREEMENT ( "AgreemenP') is entered inta as of June 7, 2005, by and between CUPERTINO FINANCIAL CEN3'ER PARTNERS LLC a California limited liability company ("CFCP"}, and CUPERTINO HOUSING PARTNERS LLC, a Califomia limited liability company ("CHP"). RECITACS A. CFCP is the current owner of that certain real property located in the City of Cupertino, County of Santa Clara, State af California, commonly known as 10050 and ]0080 N. Wolfe Road, Cupertino, Caiifomia, as more particularly described in Exhibit A attached hereto and incorporated hereirt by this reference (the "Offcce Property"}. The Of�ce Property is presently improved with commercial office buildings, an undergcound parking structure, a surface parking lot and other related facilities. From and after completian of construction of the Residential Project (as defned in Recital D below), the portion of the Office Property within that certain easernent area shown and described on Exhibit B attached hereto and incocporated herein by this reference (the "Office Property Easement Area") will be improved with approximately one hundred fifty-seven { 157) paved and striped, surface parking statls {che "Of�ce Properly Parkircg 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 Cupettino, Caunty of Santa Clara, State of California, more particularly described in Exhibit C attached hereto and incorporated herein by this reference (the "Residenlial 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 vf the Recorder of the County of Santa Clara, California, 875677 vl USF / 2-21 \ . . r on May 20, 2004, as Document No. 17799148 (the "Original Reciprocal Easement"}. CFCP and CH� 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 ( l07) one-bedraom, two-bedroom and three-bedroom residential and five (5) retail units and retaEed infrastructure, improvements, amenities and other facilities (the "ResideRtial Project"). From and after cornpletion 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 Easemen� Area") will be improved with fifty-three (53) paved and striped, surface parking stalls (the "Residential Property Surface Parking Stalls") and appraximately one hundred and ninety eight (198) paved and striped, parking stalls u�der 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 ProperEy Surface Parking Stalls and the Residential Property Podium Parking Stalls aze 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 parlc�ng of the Residential User's and Retail User's Vehicles (as such terms are defined in Section L 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 reon-exclusive easement for the parking of the Office User's (as defined in Section 1 below) Vehicles on fifty seven {57) unreserved Residential Property Podium Parking Stalls and on fifty chree (53) unreserved Residential Property Surface Parking Stalls during Of�ce Hours (as defined in Section 1.2 below} and {b) non- � exclusive easements for vehicular, pedestrian and bicycie 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 "Offece Owner", and CHP or any subsequent owner of the Residential Property is hereafter referred [o as the "Residential Owner". NOw, THEREEORE for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: a�s�� i vsF 2-22 AGREEMENT 1. Certain De6nitions. While additional terms are defined elsewhere in this Agreemenc, whenever used in this Agreement, the following terms shall have the meanings described below. 1.1 Nan-Offce Houcs. "Non-Of�ce Hours" shall mean Monday through Friday frarn 6:00 p.m. unti17:00 a.m. and twenty-four hours per day on Saturdays, Sundays and tegal holidays, with such lcgal 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. "O�ce Hours" shall mean Monday through Friday from 7:00 a.m. until b:00 p.m., excepting the legal holidays referred to in Section 1.3 betow. 1.3 Office Users. "O�ce 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 ttte Office Property which CFCP may from time to time specifically designate and physically mark or segregate as being reserved parking stalls for the Of�ce Users pursuant to and in accordance with this Agreement. 1.5 Residential Users. "Residentia! 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 vf the week from 6:00 a.m. until 11:00 p.m. 1.7 Retail Stalls. "Retai! Stalls" shall mean twenty-four (24) Parking Stalls comprising a portion of the ResidenEial PropeRy 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 Yehicles. "Vehicles" shall mean those automobile, passenger vans, light-duty pick-up trucks and motorcycles which aze owned, leased and/or operated by the Office Users and the Residential Users, respectively. 875677 v1 L/SF 2-23 2. Grants of Reciprocal Easements. 2.1 Office Owner hereby grants to Residen[ial Owner (a) a non- exclusive easement to use che Office Property Parking Stalls during IVon-Office Hours far 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 PropeRy 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 Of�ce Property Easement Area; provided, however, that with respect to those partions 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 tv 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 ta 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 partcing the 4ffice 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 af 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 Of�ce Qwner and Residential Owner shall be entitled to use and enjoy the Office Properiy Easement Area and Residential Property Easement Area, respeccively, for any purpose o� use which dces not unreasonably interfere with the other owner's abitity to use such easement area for its respective Ea.Sement Uses. 3. Term. Subject to Section 7 below, this Agreement shall continue in full force and effect in perpetuity. 875677 vl I/SF 2-24 4. Maintenance and Repa�rs. 4.1 Maintenance by Office Owner and ResidenEial Uwner. Subject to Section 4.3 below, the Office Owner and Residential Owner shall periodically inspect, main[ain 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 reasanable operation of such easement areas and parking stalls, including without limitation (a) maintaining, repairing and periodically repaving and/or resurfacing (when reasonably reyuired 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 Resident�al Owner shall have no obligation to inspect the Office Pr�perty Parking Stalls and Resiclentia! Property Parking Stalls, respectively, to determine if such sEalls aze 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, reconswctian, or replacement of such easement areas and parking stalls shall be bome solely hy 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 Praperty Easement Area and Office Property Par[cing Stalls} and the Residential Property (including, without fimitation, the Residential Property Easement Area and Residentiat Property Parking 5talls) shall be borne solely by the Office �wner 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 replacemenE 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 shal! be given. 4.2 Maintenance by the Other Owner. The Office Owner and Residential Owner shalt have the right to inspect the Residential Property Parking Stalls and Office Property Parking Stalis, 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 perfocm any of its obligations under Section 4. ! above {a "non-performing owner"), tfien the other awner 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 fourteert {i4) 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 ensurc the safe, lawful and reasanable operation af 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 1/SF 2-25 have the right to inspect, maintain, repair, reconstruct and replace the Office Property Easement Area and Office Pr�perty Parking Stalls or the Residential Property Easement Area and Residential Property Parkeng Stalls, as the case may be, if the non-performing owner commences cure within such fourteen ( l4} day period and diligently Qrosecutes the cure to completion within a cvmmercially 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, rnaintaining, 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 Of�ce Property Easement Area and Office Property Parking Sta11s 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 operatians 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. � 5. 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") shouid 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 partion of such easement area ar parking stalls (at the Injuring Party's sole cost and expense} or (b) reimburse such party upon demand for all reasonable costs and expenses actualfy incurred by such party in repairing, reconstructing or replacing such damaged portion of such easement area or parking stalls. 6. Covenants of the Parties. b.l Mechanic's Liens and Removal of Liens. Each of the Office Owner and Residentiai Owner shall keep the Of�ce• Property Easement Area and Residentiai 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, reconstructivn, or replacement of suc� easement area or the parking sta�ls thereon vr aut of the Easement Uses or any other activities or wark 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 statutc. b.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/5F 2-26 ,' , . . Easernent 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-contrib�ting 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, [he 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 pacty 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, guazantors, customers, guests, tenants, convactors {af 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, �udgments, exQenses or costs of any kind ar nature whatsoever (including, without limitation, attorneys' fees) by reason of property damage, death or injury to persons arising from ar relating to the indemnifying party's installation, improvement, use, inspection, maintenance, repair, recanstruction, 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 neg�igence or other fault of the ather party Eo this Agreemcnt or its Agents. 7. Termination Upon Rezoning. If at any time tne City of Cupertino approves the rezoning of al! or any portion of the Office Praperty, then all of the easements granted by Offtce Owner to Residential Owner over the OFfice Property Easement Area shall terminate effectivc 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. 8. No Public Dedications. Nothing in this Agreement is intended to be or sha11 be deemed or construed to be a gift or dedication of any poRion of the Office Property, Office Property Easement Area, Residential Praperty 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 [his 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 maii, postage pre-paid, return receipt requested, to the applicabie address set forch below: 875b77 vk 1/SF 2-2� if to CFCP: Cupertino Financial Center Partners LLC 490 California Avenue, 4` Floor Palo Alto, CA 94306 Attention: Henry D. Bullock Richard 3. Holmstrom If to Residential Owner: Cupertino Housing Partners LLC 490 California Avenue, 4` Flaor Palo Alto, CA 94306 Attention: Henry D. Bul�ock Richard J. Halmstrom The foregaing addresses and addressees may be changed by giving not�ce 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, ta the fullest extent permitted by law and equity and without regatd to technical classifications or designatians, be deemed to be covenants running with the land of the Office Property and the Residential Property, and shail be binding upon and inure to the benefit of the parties hereto and their respective successocs- in-titic. This Agreement is made with the intent of satisfy�ng Sect�on 1468 of the ' California Civil Cade. This Agreement shall be governed and conswed 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 ta 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 parce6 shal! have no right to enforce or amend the pravisions 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, consti[utes the eniire 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 ta Section 10 above, this Agreement may be amended, modified or supplemented onty by a written document executed by all of the parties hereto (or their successors-in-title). 13. Mortgagee Pratection. No violation or breach of the terms and conditions of [his 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 subscquent to the szss» �i us� 2-28 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 Praperty, as the case may be. 14. No Third Party Beneficiaries. This Agreement is oniy 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 63 above, no other person or entity ar property shafl 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). 1�. Severability. If any one or more of the provisions contained in this Agreement is for any reason held to be invalid, iflegal 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. i6. 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. (REMAWDER OF PAGE INTEN7TONALLY LEFT B!_ANK] 875677 vl k/SF 2-29 IN W17NESS WHEREOF the parties have executed this Reciprocal Easement and Maintenance Agreement as of the date first above written. "CFCP" CUPERTINO FINANCIAI. 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 mber By . (� � 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 D1 LLC, a California limited liability company, Manager By: Menlo Equities LLC, a Califomia limited liability company, Managing Member By: Menlo Equities, Inc., a California corporation, Managin ember By: `' Henry D. Bullock - President s�sb�� rsF 2-30 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Califomia �.� `-' 5S. COlIR1'y Of � On � v► � ��fore me, �� • �� '' � p� . �l;yw end T e of Olfiwr N q�'Ju» Doa. Now1' Puh1�� personally appeared �� MsmNs) d Syw(a} � er5onally known to me O roved to me on the basis of satisfactory evidence to be the persan(s) whose n8me(S) is/are subscribed io the w�thin instrument and � R pV�} acknowtedged to me that he/sha/they executed ��3�3T55 the same in his/herltheir auihurized � �� p��_ �I�(�mia � capacity(ies), and that by his/hedtheir Sanffi Ctars Connty signature(s) on the instrument the person(s), or �„gCaer�n.6�i�esAprZ the entity upon behalf ot which the person(s) acted, exeCUted the instrument. WIT S y han ici al. SiC�elun d NqwY Pt�fc OPTIONAL I Tho�h the information befow is not requlred by law, R may prove valuaWe ro persorts re/yinQ on the docurnenf and cauld prevant . lraudulent ramaval and raaBacfunent ol Uvs form to enuthe► document. Descrlption af Attached Document Title or Ty�e oi Doc:umern: �" W''Y� "' " " " ' " ' ""{ � � O Documerit Date: �u,111e �� ZDOC7 Number vf ages: _.� i Signer(s) Other Than Named Abave: 1� Capacity�ies� Clafined by Signer signer's �lame: . ❑ Individual � � �`� � . ❑ Corporate Officer — Title(s): � Partner — � Limited 0 General 1 ❑ Attomey-in-Fact � � � O Trustee O Guardian or Conservator O Other. Signer Is Represe�ing: O 1988 NaOOrW NeWy AssoaaWn • 9t50 Us Som Avs . VO Bo� 2�02 • Ch�bwoNL G 9131121D2 • www relqnaYntrY a0 Pmd. Nn SB07 Aeader GII Td4Frr I�06�67&6827 2-31 ExH�B�T A TO AMENDED AND RFSTATED RECIPRC?CAL EASEMF,NT AND MAINTENANCE AGREEMENT LEGAL DESCRIPTION OF THE OFFICE PROPERTY � All that certain real property situate in the City of Cupertino, County of Santa Clara, State of Catifomia, described as follows: Being aU of Parcel A, 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 4.40 acres, more or less. Being a portian oF Assessor's Parcel Number: 3 t 6-20-Q84 875677 vl I/SF 2-32 EXHIB[T B To AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT DESCRIPTION OF THE EASEMENT AREAS 7 --- ,;,�------------� .,� . � K :: �. .; :: •`...:. :': { � ::=_ I ._.• I .�.. , . � I . � :: � J '�' I 4 � a :I - ��. .,:.:��: �� - � .�•,; �:::.;_.�.:..:. I - - - -� � -::�,.�.,._ - - - ..:�:. ..... .. . � - - ..::. .: ._.-- �:...-: . . .. �� : : `��-:...' I , � : 11 �� .:.:-� ....,. �� :°;;:��:.:� t ' I '' ` I I �� a i i ' I I m'•; _ � .�...?; .. . � � — + „ . .. .. .. . - L� 11 � I - =__-_ =_--� - � �� ' ' " -� � _ I �, �, a � � • VED61I11AN � , � . -. 14 T. 1 1 :':�� 7 AP �2-4s �1 ... ... � ' � .. .. �-� �-- - ----- J L L__ __ . I • � � � . ..�.. ........... ....:'.:.::. ... . ...,. _ _ ....._ .. .-� r , .� II � I � � . z — , .r.�.— - �' �' •M�v a �� I —�-- ' � I I -- � I � �� 1 i '� - II , I , � � II '--- I � � � II I i 11 I �_—^__`�—____� — aI � � a�',`�; IIIIIIIIIIIlI �� --�� _::::': lI `________'_______� I. 1 �: I I I I � I �°' `� �------------------------- � ------------ ------- � �vers a�,c �a�r+�wo a�sbn �� usF 2-33 E��BtTC To AMENDED AND RFSTATED RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT LEGAL DESCRIPTION OF THE RESIDENTIAL PROPERTY 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, 20Q4 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 1/5F � 2-34 SUBORDINATTON AGREEMENT NOTICE: THIS SiJBORDINATION AGREEMENT RESULTS IN TI� LIEN YOU HAVE ON TI� REAL PROPERT'Y DESCR.IBED IN EXHIBIT A ATTACI�D TO THE FOREGOING AMEIITDED AND RESTATED RECIP1tOCAL EASEMENT AND MAINTENANCE � AGREEMENT ("REA") BECOMING SUBJECT TO AND O�' LOWER PRIORITY THAN THE RIGHTS OF CUPERTINO '' HOUSING PARTNERS LLC AND THE RESIDENTIAL USERS (AS SUCH TERMS ARE DEFINED IN THE REA) UNDER T'HE REA. FOR VALUABLE CONSIDERATION the receipt of which is hereby acknowiedged, ,;, UNION BANK OF CAL�ORNIA, N.A. ("I.ender"), acting for itself as beneficiary under that ce�tain Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, executed by Cupectino Financial Center Partners LLC, a California limited liability company, as trustor, for the benefit of Lender, as beneficiary, dated December 11, Z000, and recorded in thc Official Records of the County Recorder of Santa Clara County, California, on December 14. 2000, as Instrument No. 15494831 (the "Deed of Trust"), hereby intentionally, unconditionally and irrevocably subordinates the lien of its Ueed of Trust, subject to the terms and provisions of the REA, including, without limitatian, 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 WHE[tEOF Lender has executed this Subordinadon Agreement as of this ,.,� day of June, 2005. UNION BANK UF CA o , N .A.� By: �'' Its: �� -" � ' C -e'l� � s�s�� i usF 2-35 . •� . sTA� oF c�.�oRrrw � �� 55. COUNTY OF �� ) p , 2005, bcfore me, L ut� ��( !,�Notary Public, persona�ly ap ed c. , rsonally known co me (or proved to me on the basis of satisfactory evidence) to be t e person�hose namef e� isFa� subscribed to the wit�in instrumeni and acknawledged to me chat he�elt� execUted the same in hi�r authorized caQacity(ies�;`and that by his�#erkhtir signatucc� on the instrument the person{s}; br thc entity upon behalf of which the person{�.ected, executed the instrument. Witness my hand and off�ial seal. � _ � -LUEZA PERPETUO � U - NOlARY PUBLIC-CALiFORNU p ]gri8 Ie O Ot7iy PubliC � CONTRA COSTA COUNIY O COMM. EXP. JAN. 3, 20U8 -' 875677 vl l/SF 2-36 • . . _ . �.�, � SUBORDINATIUN AGREEMENT •-' � NOTICE: THIS SUBORDINAT'ION AGREEMENT RESULTS IN THE LIEN YOU HAVE ON 'I'� REAL PROPERTY DESCRIBED IN EXHIBIT C ATTACHED TO THE FOREGOiNG AMENDED AND RESTATED RECIPROCAL EASEMENT AND NIAINTENANCE . AGREEMENT ("REA'� BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN 1'HE RIGATS OF CUPERI'IrTO FiNANCTAL CENTER PARTNERS LLC ANi? THE OFFICE USERS {AS SUCH TERMS ARE DEFINED IN THE REA) UNDER THE REA. FOR VALUABLE CONSmERATION the receipt of which is hereby acknowtedged, 1VIIn-P�mvsuLw BANK, a part of Greater Bay Bank, N.A. ("Lender"), acting for itself as beneficiary under that certain Construction Deed of Trust, Sccurity Agreement, and Fixture Filing {With Assignment af Reats and Leases), eaecuted by Cupertino Housing Partners Li.C, a Califamia liauted liability company� as trustor, for the benefit of Lender, as beneficiary, dated July 20, 2004, and recorded in the O�cial Records of the County Recorder of Santa Clara County, California. on July 29, 20U4� as Instrument No. 17424508 (the "Deed of TrusY�, hereby intentionally, unconditionally and irrevocably suborclinates the lien of its Deed of Trust, subject ta the terms and provisions of the REA, including, without limitation, tlze effect of any br�ach 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. Ix W['rtvFSS W�x�og, Lender has executed this Subordination Agreement as of this 3!3 day af June, 2005. MID-PENINSUL.A BANK, part of Greater Bay Bank N.A. By: ti, Senior Vice President 875677 vl I/SF 2-37 CALIFORNIA A - URPOSE ACKNOWLEDGMENT ��,- _ _ _ — — — _ _ — _ _ _ _ _ _ _ - 1 State of California County of .SAN7� (fi�i� ss. �' � On v��-Y «.� aoos before me, �Q�� . L.6/� �DYARY ��l/9LlG � , � , � � �ma a�a nna a oRce� (s,9 ,•�a�e ooe. Nocary Puni�c-1 , � personaliy appeared v�� '`��'�� ' Name�t) d $igier(s) � ' � personapy known to me � proved to me on the basis of satisfactory ., evidence � •� to be the person� whose nameQ�) isi�e ` subscribed to the within instrument and �� acknowledged to me that helsl�e/th� executed , the same in his/h�r/th1Z4r authorized �oMEO C tut �pacity(ies), and lhat by hislF�rltl�ir Commission a t50a843 signature(� on the instrument the person,(�, or No�ary Pubac � GollforNo San�o Clcra Counry � the entity upon behalf of wt�ich tf�e person,� MyComm.Expire:aup 1,�008 acted, executed the instrument. WITNESS my hand and official seal. � � � � Placa Nalary Ssal Above Sipnature Pu41ic I� ; OPTIONAL i Though the infwmation below is nat reqwred by law, it may prove valuable to persons relying on the document � � and could prevenf fraudulent removal and reattachment of this form to another documenf. � � Description of Attached D cument . � I � Title or Type of Document: �}� '� ��p�� f��' 5 �� ' Y�l� ✓1�V1�� g6 ; ' Document Date. l�u u� `LOar Number of Pages: Signer(5) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: � ❑ Individual Top o( Ihumb here ❑ Corporate Officer — Title(s}: ❑ Partner — � Limited ❑ Genera{ ❑ Attomey in Fact p Trustee ❑ Guardian or Conseroator ❑ Other: � i Signer Is Representing: � ,�, _ _ - - - - - - - - - - .�� O �99Y NamuS Ndan Auoaaunn • 0.150 C. SoW Ave � PO Boa 2a02 • CMtcwa�h. CA 8t313�2�02 • wvm natloret�otay a4 Prod No 6eW Reomar. Caa 7oaFw 1�E00�679�d8Z/ 2-38 � 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 PERNRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 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 PERNRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) LIBD/2367539.3 1 2-39 Attachment 5 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: GOODwII�T PROCTER LLP Three Embarcadero Center, 24`� Floor San Francisco, CA 94111 Attn: Paul Churchill [SPACE ABOVE THIS LINE FOR RECORDER'S USE.] LICENSE AGREEMENT (PARI�NNG) THIS LICENSE AGREEMENT (PARIQNG) ( "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 Ezhibit 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 Boulevatd, Building B Units RlO1B, R102B & R103B and more particularly described and depicted on Ezhibit 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 June 7, 2005, and recorded in the official records of Santa Clara County, California on August 9, 2005 as Document Number 18515790 (the "EasemenY') a copy of which is attached hereto as Ezhibit C, Licensee granted to Licensor, inter alia, a non-exclusive easement for the use of fifty-seven (57) unreserved Residential Property Podium Parking Sta11s located in the Residential Property Easement Area. Capitalized terms used in this Agreement and not otherwise defined shall have the meaning given to such terms in the Easement. E. Licensee has requested a license for the use of three (3) Residential Property Podium Parking Sta.11s (the "Licensed Stalls") for the parking of Vehicles. 2-40 F. Licensor is willing to issue such license upon the terms and conditions set forth below. NOw, THEREFORE, for good and valua.ble 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 pazking 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 Sta11s 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 Sta11s 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 o�cers, 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") hatmless 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, attomeys' fees) by reason of property damage, death or 2 2-41 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 Sta.tes 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, 4'� Floor Palo Alto, CA 94306 Attention: Henry D. Bullock Richazd J. Holmstrom If to Licensee: Cupertino Housing Partners LLC c/o Menlo Equities LLC 490 California Avenue, 4� 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 govemed 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, the prevailing party shall be entitled to recover from the non- prevailing party a11 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). 3 2-42 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 P�'h'• 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] 4 2-43 IN WTTNESS 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 By: 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 By: Henry D. Bullock, President 2-44 ExHIBIT A TO NONEXCLUSIVE LICENSE AGREEMENT (PARI�IG) 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 SUBDMSION OF A PORTION OF PARCEL 1, AS SHOWN ON TNAT 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 CL.ARA, STATE OF CALIFORNIA ON MAY 4, 2004 IN BOOK 769, PAGES 42, 43 AND 44. RESERVING THEREFROM A NON-IXCLUSNE 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-IXCLUSNE EASEMENT FOR INGRESS, EGRESS AND EMERGENCY ACCESS PURPOSES OVER THAT PORTION OF PARCEL A DESIGNATED "PUBLIC FIRE IANE EASEMENT' ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE. FURTHER RESERVING THEREFROM A NON-IXCLUSNE EASEMENT FOR INGRESS AND EGRESS PURPOSES OVER TNAT PORTION OF PARCEL A DESIGNATED "I.I.E." ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE. PARCEL TWO: A NON-IXCLUSNE EASEMENT FOR INGRESS, EGRESS AND PEDESTRIAN ACCESS PURPOSES OVER THAT PORTION OF PARCEL B DESIGNATED "PUBLIC PEDESTRIAN EASEMENT' ON 7NAT CERTAIN MAP REFERRED TO IN PARCEL ONE. PARCEL THREE: A NON-DCCLUSNE 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-EXCLUSNE EASEMENT FOR INGRESS AND EGRESS PURPOSES OVER TNAT PORT.ION OF PARCEL B DESIGNATED "I.I.E." ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE. PARCEL FNE: • A NON-DCCLUSNE EASEMENT FOR PRNATE UTtLiTY PURPOSES OVER THAT PORTION OF PARCEL B DESIGNATED "PRNATE UTILITY EASEMENT' ON THAT CERTAIN MAP REFERRED TO IN PARCEL ONE. APN: 316-20-086 1 2-45 ExHIBTT B TO NONEXCLUSIVE LICENSE AGREEMENT (PARI�IG) LEGAL DESCRIPTION AND DEPICTION OF 19501 STEVENS CREEK BOULEVARD [BUII,DING B RETAIL U1vITS] 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 MEfROPOLITAN AT CUPERTINO (THE "PLAN) WHICH PLAN IS ATTACHED AS IXHIBIT A TO THE DECLARATION OF COVENANTS AND RESTRICTIONS ESTABLISHING A PLAN FOR CONDOMINIUM OWNERSHIP FOR ME7ROPOLITAN AT CUPERTINO (THE "DECLARATION") WHICH DECLARATION RECORDED DECEMBER 01, 2005 AS DOCUMENT NO. 18700161, OFFICIAL RECORDS, SANTA CLARA COUMY, SAID UNIT AND BUILDING BEING SITUATED ON LOT 1 AS SAID LOT IS SHOWN UPON THAT CERTAIN MAP ENTTfLED '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 ?WO: AN UNDMDED 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 UNDMDED INTEREST IS SET FORTH IN DCHIBIT E ATTACHED THERETO. IXCEPTING THEREFROM AND RESERVING 71-IE 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 DCCLUSNE USE COMMON AREAS AS DEFINED IN THE DECLARATION AND THE IXHIBITS ATTACHED THERETO AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE IXCLUSNE USE OF THE OWNERS OF CONDOMINIUMS OTHER THAN THE CONDOMINIUM UNIT DESCRIBED IN PARCEL ONE ABOVE. 3. NON-DCCLUSNE 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 IXCLUSNE RIGHT TO THE USE, POSSESSION AND ENJOYMENT OF THE IXCLUSNE USE COMMON AREAS APPURTENANT TO PARCEL ONE ABOVE, AS DEFINED IN THE DECLARATION AND THE IXHIBITS ATTACHED THERETO AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE IXCLUSNE USE THE OWNER OF THE UNIT TO WHICH THEY ARE ATTACHED OR ASSIGNED. PARCEL FOUR: A NON-EXCLUSNE EASEMENT FOR INGRESS AND EGRESS, SUPPORT, ENCROACHMENT, USE, ENJOYMENT AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS AS SHOW ON 7NE PLAN AND DEFINED IN THE DECLARATION. APN: 316-49-110 and 316-49-111 and 316-49-112 2 2-46 __ _ _ EXFHBIT 'A' FERSf FLDOR�-F10EtR PL�tN CCf�iO�ll�l P'tANS 1NE1'RCPQt.JT,At+t AT C��iTM1C DATED: OCTUBER. 2�t}5 . �p � O� iY�s • �� t � ! • w� �� i �1� tl1YNYr • � I �[�+[ l, 1 tp �� (� �� w� � m Y 1R""iZJ� ��12/a�. Y��i�TD � N � � � 1 ( ' • { � u—�zse u—�2� � u—�2oe ' u—t�w � ' u—�ss � � cou�rr,�tn � � � � � � u—��Te � u—�as� � t _ � su��€c s . p� . .,...� _._..p � � � � � iJ-1t29 � m . - " � i � � m r � � � � � _ � wu�e � = m � �, . � u—�o� � � u—� � v--isse . EGItlIPAtENt mua+r�to s � �� . . .M.M... ...� . Q 1558 { �— --� �� ' _J L , � � 4 e S o U � 1 � � � o � o 0 1 , I t i � � � ' • � etnt.��r�c � � � . couarr�o � � o .- � ' ,. _.._ i 3 i � �-i�,� a-u-�axn � _ ( � �-u-tcna tt-wtms a-v-�aae � � a-t��-x � � � . �. �. . .r.`.�. �. . ,�.. �. . � 19501 St�evens Creelc (3 t��il u�n+ts only� �:��R��o3so-►��vrc�caHUO�st�r t�.ovrc SHE�'T' 14 3 2-47 ExHIBTT C To NONEXCLUSIVE LICENSE AGREEMENT (PARI�NG) COPY OF EASEMENT LIBD/2364838.6 1 2-48 � ' � , DOCUMENT: 1$515790 Pages� i8 �� •�Yrst Ameri�an Title Company � � I Fees . 58.80 �.6CI�OW N0.: � "� � ` � l � � i I i Taxes . Copies AMT PAfD 5 gg 0 RECORDING REQUESTED BY BRE�DA DAV 1 S RpE � 003 AND WHEN RECORDED MAIL TO : SANTA CLARA COUNTY RECORDER 8/09/2095 Recorded at the request of 8�06 AM CooLEY GoawaR� LLP F i rst Amer i can T i t I e Company One Maritime Ptaza, 20` Floor San Francisco, California 9411 � Attention: Paul Churchill, Esq. jSPACEABOVE TNIS LNE FOR RECORDER'S USE.1 ' AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT TH[S AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAII�ITENANCE AGREEMENT { "Agreement") is entered into as of June 7, Z005, by and between CUPERTINO FINANCIAL CENTER PARTNERS LLC a California limited liability campany ("CFCP"}, and CUPERTINU HOUSING PARTNERS LLC a California limited liahility eompany ("CHP"). RECITALS A. CFCP is the c�rrent owt�er of that certain real property located in the City of Cupertino, County of Santa Clara, State af California, commanly known as ltlOSfl and 10080 E�1. Wolfe Road, Cupertina, California, as more particularly described in Exhibit A attached hereto and incorparated herein by this reference (the "Offrce Property"). The Office Property is presently improved with commercia! office huitdings, an underground parking structure, a surface parking lot and ather related facilities. From and after completion of cons[ruction 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 incotporated herein by this reference (the "Office Property EasementArea") will be improved with approximately one hundred fifty-seven (157) paved and striped, surface parking stalls {the "Q�ce Properly Parking Stalls"), drive aisles serving such stalls, landscaping, irrigation, lighting and pedestrian pathways and caurtyards. B. CFCP has conveyed to CHP that certain real property lacated in the City af Cupertino, County of Santa Clara, State of California, more particularly described in Exhibit C a[tached hereto anc! incorporated herein by this reference (the "Residenlial Property"). � C. Cancurrent�y with such conveyance, CFCP and CHP entered into that certain Reciprocal Easement and 11�aintenance Agreerrzent dated as of May 20, 2U04, and recorded in the Official Records of the Recorder of the County of Santa Clara, California, 875677 vl !/SF 2-49 / \ . � r on May 20, 2004, as Document No. 17799148 (the "Original Reciprocal Easement"). CFCP and CHP now desire ta amenci and restate the Original Reciprocal Easernent 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 aad five (5) retail units and retated infrastructure, improvements, amenities and other facilities (the "Residential ProjecY'). From and after completion of construction of the Residential Project, the portion of the Residential Property within that certain easement area shown aad described an Exhibit B hereto (the "Residential � Property Easeneent Area") will be improved with fifty-three (53) paved and striped, surface parking stalls {the "Residential Properly 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 Proper�y Surface Parking Stalls and the Residential Praperty Podium Parking Stalls are sometimes collectively referred to in this Agreement as the "Residential Pruperty 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 �ion-Office Hours (as defined in Section 1. I below) and (t�} 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 cEefined in Section 1 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) nan- � exclusive easements for vehic�laz, 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 "Of�ce Owner", and CHP ar any subsequent owrier of the Residential Property �s hereafter referred to as t6e "Residential Owner". 1�10w, THEREFORE for good and valuable consiaeration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 875677 vl I/SF 2-50 . � • � AG REEMENT 1. Certain Definitions. While additional terms are defined etsewhere in this Agreement, whenever used in this Agreement, the following terms shall have the meanings described belaw. 1.1 Nan-Office Hours. "Non-Office Hours" shall mean Monday through EricEay from 6:00 p.m. unti17:00 a.m. and twenty-four hours per day on Saturdays, Sundays and legal halidays, with such legal holidays, including, without limitation, New Year's Day, Martin Luther King Day, President's Day, Memorial Day, Independence Qay, Labor Day, Thanksgiving Day and Christmas Day. 1.2 Office Hours. "Office Hours" shall mean Monday through Friday from 7:00 a.m. unti15:00 p.m., excepting the 1ega1 holidays referred to in Section t.3 below. 1.3 Qffice 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 sta(]s on the Office Praperty which CFCP may from time to time specifically designate and physically mark or segregate as being reserved parking stalls for the 4ffice Users pursuant to and in accordance with this Agreement. 1.5 Residential Users. "Residential Users" shal] mear► 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 rrtean every day of the week from 6:00 a.m. until 11:0(? p.m. 1.7 Retail Stalls. "Retail Sta.11s" shall mean twenty-four (24) Parking Stalls comprising a partion of the Residential Property Surface Parking Stalls located praximately to the retail units. 1.8 Retail Users. "Retai! 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 thQSe 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, respectiv�ly. 875677 vt I/SF 2-51 2. Grants of Reciprocal Easements. 2.1 Office Owner hereby grants to Residen[ial Owner (a) a non- exclusive easement to use the Office Pro�erty 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 af vehic�alar ingress and egress of the Residential User's and Retail Users' Vehicles over the Office Property Easement Area, (c) a non-exclusive easement for puiposes 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 af the basketball court for the Residential Users in the 4ffice Property Easement Area; provided, however, that with respect to those partions of the �ffice Property Easernent Area shown as "pedestrian easement" on Exhibit B hereto, oniy pedestrian access will be germitted 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 �fftce Property be deemed to be included within the "4ffice Property Parking Stalis," and Residential Owner acknawledges and agrees that Res�dentia] Owner and the Residential Users and Retail Users are not granted or otherwise given any right, title and incerest with respect to such underground parking stalls pursuant to this Agreement. 2.2 Residential Owner hereby grants to the 4ffice Owner (a) a non- exc�usive easement to use up ta Fifty-seven (57) unreserved Residential Property Podium Parking Stalls during Office Hours for purposes of parking the Office Users' Veh�cles, (b) a non-exclusive easement to use 53 surface Residential Property Surface Parking Stalls during Office Hours for �urposes of parking the Office Users' Vehicles; (c) a non-exclusive easernent for purposes of vehicular ingress and egress of the Office Users' Vehicles over the ResidenEial Progerty Easement Area and (d) a non-exclusive easement for purposes of pedestrian and hicyc�e 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 shawn as "pedestrian easement" on Exhibit B hereto, only pedestrian access wil[ be permitted on such portions. Office Owner acknowledges ar�d agrees that the Office Users shall not park, at any [ime, in the one hundred and forty one (141) Residential Praperty Podium Paricing 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 Residentia! Property Easement Area, respectively, for any purpose or use which does not unreasonably interfere with the other awner'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 vt 1lSF 2-52 4. Maintenance and Repairs. 4.1 Maintenance by 4ffice 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 Praperty Parking Stalis and Residentiat Property Easement Area and Residential Property Parking Stalls, respectively, to ensure the safe, lawfu] 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 easerrtent areas, (b} regularly sweeping and cleaning such easement area to remove dirt and litter, (c) ma�ntaining 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 Residentia! 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 limita�ion, the Office Praperty Easement Area and Office Property Parking Stalls) and the Residential PropeRy (including, withaut fimitativn, the Residential Property Easement Area and Residentiat Praperty Parking Stalls} 5hall 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 awner sha]] give the other owner at least fourteen { 14) days prior written notice of any such impmvement, 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 reasonab3e under the circumstances shall be given. 4.2 Maintenance by the Other Owner. The Office Owner and Residential Owner shalt have the right to inspect the Residential Property Parking Stalls and Office Praperty 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. E above (a "non-performing owner"), tf�en the other awner shal] provide such non-performing owner with written notice thereof. The non- performing owner sha[l thereafter use commercially reasanable 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 Eailure within such fourteen (14) day time period, then the other owner shall have the right, but not the obliga�ion, to immediately inspect, maintain, repair, reconstruct and replace the Office Property Easement Area and Office Property Parking Stalls or the Residential Praperty Easement Area anci Residentia( Property Parking Sta11s, as the case may be, ta ensure the safe, lawful and reasonable operation of such easement area and parking stalls; provided, however, if such cure is one that wil� reasanably require more than fourteen (14} days to cure, then such other owner shall not s�s6n �� usF 2-53 have the right to inspect, maintain, repair, reconstruct and replace the Office Property Easement Area and �ffice Property Parking Stalls or the Residential Property Easement Area and Residential Property Parking Stalls, as the case may be, if the non-performing awner commences cure within such fourteen (14) day period and diligently prosecutes the cure to comple[ion within a cammercially reasonable period. Within thirty (30) days of written request, the non-performing owner sha11 reimburse the other awner for any reasonable costs and expenses actually incurred by the ather owner in inspecting, maintaining, repairing, reconstructing and replacing any portior► 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 ar 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 operatians on the non-performing owner's property. In the ever►t the non-performing owner fails to reimburse any such costs and expenses with such thirty (30) day period, fram and afier such period the non-performing owner shall additionally be obligated to pay the other awner interest on any unreimbursed costs and expenses i� the amo�nt of five percent (5%) per annum. S. Damage ta Easement Area. If either the Office Owner {or the Office Users) or the Residential Owner (or the Residential LTsers 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 Offcce Property Parking Stalls), the Injuring Pacty shall, at the election of the other party, either (a) repair, reconstruct or replace such damaged or destroyed portion af such easement azea ar parking stalls (at the Injuring Party's sole cost and expense) or {b) reimbucse such party upon demand for all reasonable casts and expenses actuatly incurred by such party in repairing, recanstructing or repiacing such damaged portion of such easement area or parking stalls. 6. Covenants of the Parties. G.1 Mechanic's Liens and Removal of Liens. Each.flf the Office Qwner and Residential Owner shall keep the Office Property Easement Area and Residentiat Property Easement Area free and clear of all design professional's, mcchanic's or materialmen's lieas which may arise out of any instatlation, improvement, use, inspection, maintenance, repair, recanstructian, or replacement of such easement area or the parlcing stalls thereon or out of the Easement Uses or any ather activities or wark on such easement area by such awner. To the extent any such liens are recorded against the either af the foregoing properties, the party responsible for the imposition of the lien sha11 cause such lien to be reieased 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 band in the amount required by statute. b.2 �nsurance. At all times during the term of this Agreement, each of the Office Owner and Residentia] Owner shall ob[ain and maintain commercial general 1lability insurance covering the Office Property Easemeht Area and Residential Property 875677 vI1/SF 2-54 , � . , � 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 i[s lenders and any ather persons reasonably designated in writing by such party) as an additianal insured, and requiring at least thirty (30} days written notice prior to any cancellation, material amendment ar 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 �sing the easement area and parking stalls on the other owner's property, the �ffice Owner and Residential Owner, as the case may be, shall deliver to the other owner a certificate of iasurance 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, sharehalders, partners, managers, members, affiliates, guarantors, customers, guests, tenants, contractors {of any tier), agents, representatives, employees, invitees, licensees, mortgagees, successors and assigns {collectively, "Agents") hartriless 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 whatscever (including, without limitation, attorneys' fees) by reason of praperty damage, death or injury ta persans arising from or reladng to the inaemnifying party's installation, improvement, use, inspection, mair�tenance, repair, recanstruction, and replacement of the easement area and parking stalls thereon, except and to the extent that such deaih, injury or praperty 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 al� or any partion of the Office Property, then all of the easements granted by �ffice 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. 8. 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 fiasement Area, Residential Property or Residential Property Easement Area for any public use. 9. Notices. Any notice, consent, approval or request for consent required or pernlltted to be given under this Agreement shdll be given in writing and shall be effective (i) if personally delivered, upan delivery or refusal to accept such delivery; or � (ii) if mailed, three (3} days after mailing, by United States registered or cettified maii, postage pre-paid, return receipt �equested, to the applicable address set forth below: s�s6n �> >�sF 2-55 � , . if to CFCP: Cupertino Financial Center Partners LLC 490 California Avenue, 4`� Floor Palo Alta, CA 94306 Attention: Henry D. Bullock Richard 3. Holmstrom If to Residential Owner: Cupertino Housing Partners LLC 490 California Avenue, 4'�' Floor Palo Alto, CA 94306 Attention: Henry D. Bullock Richard J. Holmstrom The Foregving addresses and addressees may be changed by giving notice of such change in the manner provided for in this Section 9. 10. ginding 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 technica! 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 af the California Civil Code. This Agreement shall be governed and construed in accordance with the laws of che State of Califomia. 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 appl�cable property) with respect to such property shall have the right ta enfarce and amend the provisions of this Agreement on behalf of the Residential Progerty, and any purchaser, lessee or other transferee of such portion of such parcel shall have no right to enforce or amend the pravisions 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, canstitutes the entire agreement between the parties with respect to the grant af easernent hereunder and supersedes, amends and restates the Original Reciprocal Easement in its entirety. 12. Amendments. Subject ta Section 1 Q 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). i3. 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�Vio�tgage (as hereafter defined) given in good faith and for value which is now or in the futare recorded against the Office Property or Residentiai Property. With respect to any Mortgage recorded against either of such properties subsequent to the s�ssn �a �rs� 2-56 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 t�lce 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 Praperty or Residential Praperty, as the case may be. 14. No Third Party Beneficiaries. This Agreement is oniy for the benefit of the parties hereto and their successors-in-title as set forth in Section l0 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 vr more of the provisions contained in this Agreement is for any reasan held to be invalid, i�legal or unenforceable in any respect, such invalidity, illegality or unenforceabijity shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had r�ever 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. [REMAINDEft OF PAGE INTENT[ONALLY LEFT BLANK] 875b77 vl k/SF ` 2-57 IN W['[NESS WHEREOF, the parties have executed this Reciprocat Easement and 1Vlaintenance Agreement as af the date first above written. "CFCP" CUPERT[NO FINANC[AL 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 mber By: � ' Henry D. Bullock President "CHP" CUPERTINO HOUSING PARTNERS LLC, a California limited liability carnpany By: Menlo Equities DeveEopment Company IV LLC, a Califomia limited liabiliry company, Manager By: Menlo Equities QI LLC, a California limited liability comgany, Manager By: Menlo Equities LLC, a California limited liability company, Managing Member By: Menfo Equities, Inc., a California corporation, Managin ember g y . � Henry D. Bullock President s�sb�r �� rsF 2-58 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Stafe of California �� '! " ss. Co�nty of On � � � �`vv-�before me, �� • �� • , pepB �� ud T� of OQiar (o q.'Jans Ooa, Notary RibYt') �f'1�1J11 personally appeared t ��J'�' � �N=I d ��1 �personally known to me 'O �roved to me on the basis of satisfactory evidence to be the person(s) whose name{s) islare subscribed to the w�thin inst►ument and IWNROLIN acknowledged to me that ha/sha/they executed �i�on#7353755 Z the same in his/her/their authoriz8d � pp�gry puplEc- Csfi(omia � capaciSy(ies), and that by hislher/their Santa Clara Connl�r signature(s} on the instn,ment the persan(sj, ar �,AyConrn.6�iraaAprZ3. the entity upon behalf of wh9ch the person(s) acted, executed the instrument. WIT S y han ici ,� sqnae,. a naan r�uc OPTIONAL 1 17roogh fhe in(armation bebw is not required by law, U may prove vakraDle to persorts neJying on the dacvment and could preve�t . (rguduJent ramova! and reaBechrrfent Of 1lfts ftlrm to BnoUter dotxmenL f Oescription of Attached Document � TiUe or Type oi Document: ui`�' � '� " �' ' " �� r � 4 Dxument Date: ��l.�e ��05 Number of ages: �D � Signer(s) Other Than Named Abave: Capacity(ies} Claimed by Signer 5igner's Name: . - ❑ Individual T � p � �� ❑ Corporate Officer — Title(s): O Partner — � Limited ❑ General l ❑ Attomey-in-Fact � i � ❑ Trustee ❑ Guardian or Conseroator p Other: Signer Is Representing: O 19W NaLentl frMrry Asseoibon • 0.150 a Sab Ava , PO Bm� 2�02 • CJrbwOrnL G 917112�OQ • w�wr r�ti0na1no9ary dp Prod No �07 Renda� Cd ToaFn� I•!06l76�C37 2-59 . ' , . -, EXHIBIT A TO AMENDED AND RESTATED RECIPRQCAL EASEMENT AND MAINTENANCE AGREEME�IT LEGAL DESCRIPTION OF THE OFFICE PROPERTY Atl that certain real property situate in the City of Cupertino, Cvunty of Santa Clara, 5tate of California, described as follows: Being all of Parcel A, as shown on tt�at certain Parcel Map, �led May 4�' 2004 irt 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 i�lumber: 316-20-U84 875677 vl l/5F 2-60 E�-natT B To AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANCE AGREEII�IENT DESCRIPTION OF THE EASEMENT AREAS � --- �,�-------------� :�: � �� : :. �:� �� i ... . . :::: :� , ....•::,::::_::�=�::::: ' � � �`�_ _ � � ...-.... � _�.. . _ y " _ � O I I • ..: L -�-� 1�..';:,�:- � ---,� ;;.-�,.._ --- ... _ _ ::::;� :.:.:..� _-..... : ,. . . ,... � I! .-.: :..:.. �.� �' — � � _. ... ....., .....- � � � : I I �-° - „ . ' ' I I �:`�'�.:�`�..:� � I ��. ..... � � •,��::•::; -- - --.......:. � _ _ � � ` �:. .:. .. .. .... � – r,-a ; ti = , �� . . �� ____-_--= -� � �i � � � , -- � �' � b I i . vEncsiai�N i; '..:..: � E Q+r. � i .: :+.: AP 42-M � 1 "' I �� r.. ��'��---------------- J L `-- .-� r � (, -��, " - . I I � I � ; • I I — � •u� • -�� I ---�-- - � � – � � � I I� � ' i'•� �� a i i �,�_ i ' ii � i f � � ,. , E 1� I I I I I( I I I I I 1 I� �___ '°_____� �►i � �, �3 ,�� ... ;: -:: � :.•.:..< II �_________`_____J I. j �:� I I I I •� , I °R°P `dt �------------�----�------------ � -----^___��_�_.�_�_ _��_..._�,_.._.� � $TEVEN9 CF�HC �OU,EYAFtD 875b�7 vl !/SF 2-61 ExwB[TC To AMENDED AND RFSTATED RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT LEGAL DESCRIP'TION OF THE RESIDENTIAL PR4PERTY All that certain real property situated in the City of Cupertino, County of Santa Clara, State of Califomia, described as follows: Being all of Parcel B, as shown an that cercain Parcel Map, ftled May 4, 2004 in Book 769 of Maps at Pages 42 thraugtt 44 inclusive, Records of Santa Clara County. Containing an area of 3.34 acres, more or less. Assessor's Parcel Number: 31fr20-087 a�sb�7 �i irsF 2-62 SUBQRDINATTON AGREEMENT NOTICE: THIS SLTB4RDINATION AGREEMENT RESULTS Il�t THE LIEN YOU HAVE ON THE REAL PROPERTY DESCRIBED IN EI��iIBTT A ATTACHED T4 THE FQREGOING AMENDED AND RESTATED RECIPROCAL EASEMENT AND MAINTENANCE � AGREEMENT ("REA") BECOMING SUBJECT TQ AND O�' LOWER PItI4RITY THAN THE i2IGHTS OF CUPERTINO �" HOUSING PA.RTNERS LLC AND THE RESIDENi'IAL USERS (AS SUCH TERMS ARE DEFINED IN THE REA} UNDER THE REA. FOR VALUABLE CQNS[DERATION the receipt of which is hereby acknowiedged, ,� UNION BANK OF CALIFORNIA, N .A. ("I.cnder"), acting for itself as beneficiary under that ceRain Deed of Trust, Assignment of Rents, Security Agreement and Fixtuce Filing, executed by Cupertino Financial Center Partners LLC, a California limited liability company, as trustor, far the benefit of Lender, as beneficiary, dated December 11, 24(}0, and recorded in the Official Records af the Coanty Recorder of Santa Clara County, California, on December 14, 2000, as Instrument No. 15494831 {the "Deed of Trust"), hereby intentionally, unconditionaily and irrevocably subordinates the lien of its Deed of Trust, subject to the terms and provisions of the REA, including, withaut limitation, the effect of any breach or default under the REA on the lien of the Deed of Trust, and to the rights of Cupertina Housing Partners LLC and the Residential Users thereunder. IN WI'1'�1ESS WHEREOF Lender has execu[ed this Subordination Agreement as of this ,.,� day of June, 2005. UNION BANK OF CA O , N.A.� By: �' / . �[5: / � .�, � �� -�t.� 875677 v11/SF 2-63 � t � � STATE QF CALIFORNiA ) COEJNTY OF � �� j ss. On ' , 2(105, before me, L U�� [_;.::�Notary Pubiic, personally appe ed G. ° , rsonally known to me (or proved to me on the basis of satisfactory evidence) to be t e gerson�hose narnr�e� istare subscribed t� the within instrument and acicnowledged to me that hels�ef�e�r executed the same in his,�e�#}�e� authorized caQacity{ieS�"and that by hi�tir signaturc(s) on the instrument the person(s}; br thc entity upon behalf of which the person{�-ected, executed the instrument. Witness my hand and of�cial seai. - r -LUIZA PERPETUO 3 � COMM. � 14601 i3 �gna re o otary Public � N07ARY PU8l1C-CALIFORNU Q COI`3TRA CO$TA COUNTY O COfv�M. EXP.IAN. 3, Z068 a 875677 vl I/SF 2-64 . . � r � � . ' ' _ _ h �� . . SUBORDINATION AGREEMENT �.� - NOTICE: THIS SUBORDINA170N AGREEMENT RESULTS IlV THE LTEN YOU HAVE ON THE REAL PROPERTY DESCRIBED IN EXHIBIT C ATTACHED TO THE FOREGOiNG AMENDED AND RFS TATED RECIPROCAL EASEMENT AND MAIN'TErIArICE � AGREEMEI�T ("RF,.A"� BECUMIlVG SUBJECT TO AND UF LOWER PRIORiTY THAN THE RIGHTS OF CUPERTII�TO FINANCTAL CENTER PARTNERS LLC AND THE OFFICE USERS (AS SUCH'i'ERMS ARE DEFINED IN TSE REA) UNDER THE REA. FO� VALUABLE CONSmEBATION the receipt of which is hereby acknowledged Ni�n-PExrNSU�.A BaNx, a part of Greater Bay Bank, N.A. ("Lender"), acting for itself as beneficiary unc3er that certain Construction Deed af Trust, Security Agreement, and Fixture Filing (With Assignment of Reats and Leases}, eaecuted by Cupertino Housing Partners LI.C, a CaJifomia limited liability company, as tirustor, for the benefit of Lender, as beneficiary, dated July 20, 2004, and recorded in ihe Official Records of the County Recorder of Santa Clara County, Califamia, on July 29, 2004, as Instrument No. 17924505 (the "Deed of Trusi"), hereby intendonally, unconditionally and irc�evocably subordinates the lien of its Deed of Tcust, subject to the terjns and provisions of the REA, including, without limitation, the effect of any breach or default under the REA an the lien of the Deed of Trust, and to the rights of Cupertino Financial Center Partners LLC and the.Office Users thereunder. IN W�Z'�vF'.ss W�xEOF, Lender has executed this Subardination Agreement as of this 3[? day af Junc, 2005. MID-PENINSULA BANK, part of Greater Bay Barilc N.A. By: ti, Senior Vice President 875677 ri !/SF 2-65 CALIFORNIA ALL-PURPOSE ACKNOWLEQGMENT .�-- --- - .,, ,� � � , State of Calrfomia ss. County of .S�N� �� , � �� ; On V��-� r3 , betore me, �10�(� �. �G��, �OTAR�' �y/9L/G , ' �. Date Name and TiUe of Otficer {e.g ,'Jane Oos, Notary Pud�C� ' personaliy appeared v�� fL�� , 'I � rrame(s� o� sg�eqc� � ❑ personalfy known to me ,r� proved to me on the basis of satisfactory evidence ' to be the person(� whose nameQ�) is/�e subscribed to the w�thin instrument and , acknowledged to me that he/sl�e/th� executed the same in his/h¢�r/thR4r authorized �onnfoc �u1 �pacity(ies), and that by his/ r/t ir Commiss�on a 150a893 � � P�prory pUb�C .��p�p � signature(�j on the instrument the person,{5�1 O� Santo Ciaro county - the entity upon behalf of wi�ich the person,� �h+�nm.F acted, executed the instrument. WITNESS my hand and official seal. � � � . � p�gpe Nalary Sea� qbpve Signeture Puhle � I , 4PTIONAL � � Though the information 6elow is not rsyurred by law, �t may prove valuable to persons relying aa the document � i� and cou7d prevent fraudulant ramova! and reattachment at this form to arrother document. i� � Description of Attached Q cument � S S�/�'�� ' , � Title or Type of Document: �A� �1�1 f�b ' ' Document Date. 4��uE �`z00r fVumberaf Pages: ' SignBr(5} Ot�er Than Named Above: Capacity(ies) Claimed by Signer � Signer's Name: ❑ Individual Top of thumb here •i ❑ Corporate Officer — Title(s): , ❑ Partner — � Limited ❑ General � p AttorRey in Fact � Trustee ❑ Guardian or Conservator � Other: , i Signer Is Representing: � �------- ------ ------------ - - --- -- ----- _.� O 1999 NOhOnol NoWy ASmC24on • 9350 DY 9010 Aw . P O B� 2�02 �(TBItwOfR1. CA 81313-2402 • v,ww nBdM6YlOf81y Org P'od No 580T Fi�udsr. C�1 TpFFfM 1�87&GB27 2-66 � 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 PERJLTRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) LIBD/2364838.6 1 2-6� Attachment 6 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: JEr� CxEtnvG 10798 Juniper Court Cupertino, CA 95014 [SPACE ABOVE THIS LINE FOR RECORDER'S USE.J DECLARATION OF RESTRICTNE COVENANTS THIS DECLARAITON OF RESTRICTIVE COVENANTS ( "Agreement") is made as of December _, 2010, by JE1vN1' CxEU1vG ("Declarant"). � x�ciT.�.s A. Declarant owns that certain real property commonly known as 19505 Stevens Creek Boulevard within the City of Cupertino, County of Santa Clara, State of California, more particularly described in Ezhibit A attached hereto and made a part hereof (the "Building A Retail Units"). The Building A Retail Units are comprised of two retail spaces. B. Declarant desires to provide that the two retail spaces comprising the Building A Retail � Units shall always be owned, sold, transferred and conveyed to the same owner. . Now, TxE1tEFO�, Declarant hereby declares as follows: AGREEMENT 1. Conveyance Restrictions and Notifications. From and after the recordation of this Declaration, the Building A Retail Units shall only be owned, sold, transferred and otherwise conveyed to the same owner. Declarant and any subsequent owner owning, selling, transferring or otherwise conveying the Building A Retail Units shall be refened to herein as a"Transferor," and the person or entity acquiring such units shall be referred to herein as a"Transferee." In connection with any sale, transfer or other conveyance of the Building A Retail Units, Transferor shall endeavor to provide Transferee a copy of this Agreement; provided, however, Transferor's failure to so provide such copy shall in no way vitiate the validity or effectiveness of any such sale, transfer or other conveyance. Furthermore, prospective and potential Transferees are advised that the Building A Retail Units are subject to certain restrictions under a Planned Development Zone of the City of Cupertino (the "City") and such Transferees should contact the Planning Department of the City to determine the specific restrictions then in effect. 2. Binding Effect. The restrictions imposed by this Declaration shall burden the Building A Retail Units, and such Building A Retail Units shall be held, transferred, sold and conveyed subject to such restrictions, whether or not reference is made to this Declaration in the related conveyance document. The restrictions imposed by this Declazation shall run with the land and be binding on all successors owners and other parties having any interest in the Building A Retail Units, whether or not so stated in any conveyance document. The restrictions imposed by this Declaration sha11 benefit and may be enforced by (a) Declarant and any person who, from time to time, is or was the holder of a direct or indirect ownership interest in Declarant and (b) the City. LIBD/2376549.1 1 • 2-6$ 3. Governing Law. This Agreement shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the State of California 4. Entire Agreement. This Agreement and the attached exhibits, which are by this reference incorporated herein, and all documents in the nature of such exhibits, when executed, contain the entire understanding of the parties and supersede any and all other written or oral understanding. IN WITNESS WHEREOF, Declarant has executed this Declazation of Restrictive Covenants as of the date first written above. DECLARANT: JEiv1vY CxEUIVG 2 LIBD/2376549.1 2-69 ExffiB�T A LEGAL DESCRIPTION AND DEPICTION OF 19505 STEVENS CREEK BOULEVARD [BUII.DING A RETAIL UNTI'S] All of that certain real property located in the City of Cupertino, County of Santa Clara, State of California, described as TWO RETAIL SPACES COMPRISED OF: PARCEL ONE: UNIT NOS. R101A AND R102A, LOCATED IN BUILDING A, AS DEPICTED UPON THAT CERTAIN CONDOMINIUM PLAN FOR METROPOLiTAN AT CUPERTINO (THE "PLAN") WHICH PLAN IS ATTACHED AS DCHIBIT A TO THE DECLARATION OF COVENANTS AND RESTRICTIONS ESfABLISHING A PLAN FOR CONDOMINIUM OWNERSHIP FOR MEfROPOLITAN AT CUPERTINO (THE "DECLARATION") WHICH DECLARATION RECORDED DECEMBER 01, 2005, AS DOCUMENT NO. 18700161, OFFICIAL RECORDS, AND ANNEXED THERETO AND MADE SUBJECT TO SAID DECLARATION BY THAT CERTAIN DECLARATION ON ANNDCATION MEfROPOLITAN AT CUPERTINO - PHASE 2, RECORDED JUNE 21, 2006, AS DOCUMENT NO. 18983405, OFFiQAL RECORDS, SANTA CLARA COUIYTY, SAID UNIT AND BUILDING BQNG SITUATED ON LOT 1 AS SAID LOT IS SHOWN UPON THAT CERTAIN MAP ENTITLED "TRACT NO. 9655", WHICH MAP WAS � FILED IN THE OFFlCE OF THE RECORDER, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON JANUARY 27TN IN BOOK 780 OF MAPS, AT PAGES 40 AND 41. TNE DECLARATION OF COVENANTS AND RESTRICTIONS AND THE DECLARATION OF ANNEXATION MAY HEREINAFTER BE REFERRED TO AS THE "DECLARATION". PARCEL TWO: AN UNDMDED PERCENTAGE INTEREST IN THE BUILDING A- BUILDING COMMON AREA IN WHICH THE CONDOMINIUM UNIT DESCRIBED IN PARCEL ONE ABOVE IS LOCATED, AS DEPICTED ON TNE PLAN AND AS DEFINED IN THE DECLARATION, AND AS SAID UNDMDED INTEREST IS SET FORTH IN DCHIBIT A ATTACHED TO THAT CERTAIN CORREC'TIVE AMENDMENT TO DECLARATION OF ANNEXATION, ME�ROPOLITAN AT CUPERTINO - PHASE 2, RECORDED NOVEMBER 28, 2006 AS DOCUMENT NO. 19202609, OFFICIAL RECORDS, SANTA CLARA COUNTY. IXCEPTING THEREFROM AND RESERVING THE FOLLOWING: 1. ALL THE CONDOMINIUM UNITS DEPICTED ON THE PLAN AND DEFINED IN TNE DECLARATION OTHER THAN THE UN1T DESCRIBED IN PARCEL ONE ABOVE. 2. THE EXCLUSIVE USE COMMON AREAS A5 DEFlNED IN THE DECLARATION AND THE DCHIBITS ATTACHED THERETO, AND AS D�PICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE IXCLUSNE USE OF THE OWNERS OF CONDOMINIUMS OTHER THAN 7NE CONDOMINIUM UNIT DESCRIBED IN PARCEL ONE ABOVE. 3. NON-EXCLUSNE 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 DCCLUSNE RIGHT TO THE USE, POSSESSION AND ENJOYMENT OF THE EXCLUSNE USE COMMON AREAS APPURI�NANT TO PARCEL ONE ABOVE, AS DEFINED IN THE DECLARATION AND EXHIBITS ATTACHED THERETO AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE IXCLUSNE USE OF THE OWNER OF THE UNIT TO WHICH THEY ARE ATTACHED OR ASSIGNED. PARCEL FOUR: A NON-EXCLUSNE EASEMENT FOR INGRESS AND EGRESS, SUPPORT, ENCROACHMENT, USE, ENJOYMENT AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS AS SHOWN ON 11-IE PLAN AND DEFINED IN THE DECLARATION. METROPOLITAN AT CUPERTINO/PH. 2 APN: 316-49-009, as to Unit R101A and 316-49-010, as to Unit R102A � 1 LIBD/2376549.1 2-�0 � � FiRST FLOII�t—F�L}OR PLAt� CflNDCM�A PLANS l�TRQPO#�lT�t�l AT CUPERT.INC oA�: ocTC�a�, 2oos .�i O�r !� • f� i • �� R � �� f �� ,W�I� ♦ � � � rf � m U�'T738 U-1238 t��27B U--1298 m � N � � � � � � • U-1288 �—�� U-t�QB U-13t� � U-2158 i � GOt�RTYARO 4 � � j 0° . f � U-117B ' � U�-1368 � ' � � BUILDtNG H � i .� . � ��} `� n I . ? "s � u—»se � m . ' � � � � 1 � � _ � � wzose � �` �, . � i � ' �_» � � �� U-1:a� . EqU1P1+tENT axxnNO s � ��r� s� • � r . �Q �.�.S.�I� I t �----- r U-- � — <� < Q �-,Q� ^ � � a � � �, � � � � �� . j BI�IL[�NG A � � °� �' • �� ! .�.� R-li-�1tl1A R-U-ICQA � t N-1F-101H [hU-7 .Q'� R-U-4D?J9 � R-PA-A R-PMB _ � ( 195Q5 Ste�ns Creek �[ �'�81E ll S Q(1. .�� • �� • �� rrr • �� s � x:1su�o�\o�sra��pwcicarr�a�s��er ��.nwc SHEET t4 2 LIBD/2376549.1 2—�� 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 o�cial seal. Signature (Seal) LIBD/2376549.1 2-�2 Attachment 7 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: GooDwn�r PROC�R LLP Three Embarcadero Center, 24th Floor San Francisco, Califomia 94111 Attention: Paul Churchill [SPACEABOVE THIS LINE FOR RECORDER'S USE.J DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS ( "Agreement") is made as of November , 2010 by CUPERTINO HOUSING PARTNERS LLC a California limited liability company ("DeclaranY'). RECITALS A. Declarant owns that certain real property commonly Irnown as 19501 Stevens Creek Boulevard within the City of Cupertino, County of Santa Clara, State of Califomia, more particularly described in Ezhibit A attached hereto and made a part hereof (the "Building B Retail Units"). The Building B Retail Units are comprised of three retail spaces. B. Declarant desires to provide that�the three retail spaces comprising the Building B Retail Units shall always be owned, sold, transferred and conveyed to the same owner. Now, THEREFORE, Declarant hereby declares as follows: AGREEMENT 1. Conveyance Restrictions and Notifications. From and after the recordation of this Declaration, the Building B Retail Units shall only be owned, sold, transferred and otherwise conveyed to the same owner. Declarant and any subsequent owner owning, selling, transferring or otherwise conveying the Building B Retail Units sha11 be refened to herein as a"Transferor," and the person or entity acquiring such units shall be referred to herein as a"Transferee." In connection with any sale, transfer or other conveyance of the Building $ Retail Units, Transferor shall endeavor to provide Transferee a copy of this Agreement; provided, however, Transferor's failure to so provide such copy sha11 in no way vitiate the validity or effectiveness of any such sale, transfer or other conveyance. Furthermore, prospective and potential Transferees aze advised that the Building B Retail Units aze subject to certain restrictions under a Planned Development Zone of the City of Cupertino (the "City") and such Transferees should contact the Planning Department of the City to determine the specific restrictions then in effect. Such restrictions include, without limitation, that two-thirds (2/3) of the Building B Retail Units square footage is permitted to be non-retail use as set forth in a modification to the use permit for the Building B Retail Units enacted by the City as approval M-2010-03 on October 5, 2010. 2. Binding Effect. The restrictions imposed by this Declaration shall burden the Building B Retail Units, and such Building B Retail Units shall be held, transferred, sold and conveyed subject to such restrictions, whether or not reference is made to this Declaration in the related conveyance document. The restrictions imposed by this Declaration shall run with the land and be binding on all successors owners and other parties having any interest in the Building B Retail Units, whether or not so LIBD/2364580.4 1. 2-73 stated in any conveyance document. The restrictions imposed by this Declaration shall benefit and may be enforced by (a) Declarant and any person who, from time to time, is or was the holder of a direct or indirect ownership interest in Declarant and (b) the City. 3. Governing Law. This Agreement shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the State of California. 4. Entire Agreement. This Agreement and the attached e�ibits, which are by this reference incorporated herein, and all documents in the nature of such e�ibits, when executed, contain the entire understanding of the parties and supersede any and all other written or oral understanding. IN WITNESS WHEREOF Declarant has executed this Declazation of Restrictive Covenants as of the date first written above. DECLARANT: 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 By: Henry D. Bullock, President 2 LIBD/2364580.4 2-74 ExHIBIT A LEGAL DESCRIPTION AND DEPICTION OF 19501 STEVEN5 CREEK BOULEVARD [BUII.DING B RETAII.. UNTI'S] All of that certain real property located in the City of Cupertino, County of Santa Clara, State of California, described as follows: THREE RETAIL SPACES COMPRISED OF PARCEL ONE: LJNIT NOS. R-U-101-B, R-U-102-B, R-U-103-B, LOCATED IN BUII.,DING A, AS DEPICTED UPON THAT CERTAIN CONDOMIlVIUM 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 CONDOMI1vIUM OWNERSHIP FOR METROPOLITAN AT CUPERTINO (THE "DECLARATION") WHICH DECLARATION RECORDED DECEMBER O1, 2005, AS DOCUMENT NO. 18700161, OFFICIAL RECORDS, AND ANNEXED THERETO AND MADE SUBJECT TO SAID DECLARATION BY THAT CERTAIN DECLARATION ON ANNEXATION METROPOLITAN AT CUPERTINO - PHASE 2, RECORDED JUNE 21, 2006, AS DOCUMENT NO. 18983405, OFFICIAL RECORDS, SANTA CLARA COUNTY, SAID [JNIT AND BUII,DING 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 TI� RECORDER, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON JANUARY 27TH 1N BOOK 780 OF MAPS, AT PAGES 40 AND 41. TI� DECLARATION OF COVENANTS AND RESTRICTIONS AND THE DECLARATION OF ANNEXATION MAY HEREINAFTER BE REFERRED TO AS THE "DECLARATION". PARCEL TWO: AN UNDIVIDED PERCENTAGE INTEREST IN THE BUILDING A- BUII,DING COMMON AREA IN WHICH THE CONDOMINIUM LJNIT DESCRIBED IN PARCEL ONE ABOVE IS LOCATED, AS DEPICTED ON THE PLAN AND AS DEFINED 1N THE DECLARATION, AND AS SAID UNDIVIDED INTEREST IS SET FORTH IN EXHIBIT A ATTACHED TO THAT CERTAIN CORRECTIVE AMENDMENT TO DECLARATION OF ANNEXATION, METROPOLITAN AT CUPERTINO - PHASE 2, RECORDED NOVEMBER 28, 2006 AS DOCUMENT NO. 19202609, OFFICIAL RECORDS, SANTA CLARA COLINTY. EXCEPTING THEREFROM AND RESERVING THE FOLLOWING: 1. ALL T'HE CONDOMIIVIUM iJNITS DEPICTED ON THE PLAN AND DEFINED IN THE DECLARATION OTHER THAN THE L1NIT DESCRIBED IN PARCEL ONE ABOVE. 1 LIBD/2364580.4 2-75 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, ENCROAC�IMENT, USE, ENJOYMENT AND RIGHTS OVER, UNDER, UPON AND THROUGH TI� CONIMON 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 'TI� EXCLUSIVE USE CONIMON AREAS APPURTENANT TO PARCEL ONE ABOVE, AS DEFINED IN THE DECLARATION AND EXHIBITS ATTACHED TI�RETO AND AS DEPICTED ON THE PLAN WHICH ARE SET ASIDE AND ALLOCATED FOR THE EXCLUSIVE USE OF THE OWNER OF THE LJNIT TO WHICH THEY ARE ATTACHED OR ASSIGNED. PARCEL FOUR: A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, SUPPORT, ENCROACHIVIENT, USE, ENJOYMENT AND RIGHTS OVER, UNDER, UPON AND THROUGH THE COMMON AREAS AS SHOWN ON THE PLAN AND DEFINED IN THE DECLARATION. METROPOLITAN AT CUPERTINO/PH. 2 APN: 316-49-110, 316-49-111, and 316-49-112. 2 LIBD/2364580.4 2-76 �BIT "A' F1RST FLDQR-FL�QR FL,4N COND#�MINNM PLANS METRQtP+�.,t7A[+t AT GUP�TiNG DAIEQ: dCTOBER. 2005 . � � �i iM�� • i �� • � #I/�I� • w� i i �YIII�Y� �iWW� • , � � �1 � QZ V �"'SL� v��Iil V��L.'Jia� � • ? � � � � ' � U��LQB v' ay �� y � U ��ZVO U�3JVG � �—�� _ . . � . ��ff�� @ • . i1-1178 � U-1369 � � � $UiLD!ING B � . i . �.� .�(,? � � � ? ri S 11-1125 � � m . • F � � I � � � � � � � = I u-2ose � � m � � . ' � � � u—toea = u—t � u—�s� . EQUIPAtENT eawtr�fu s � . Q � ��,. . w..► ...� . p 15°.� i � �--� �—� 1 ' __J L ` � '` ` ` ` '' ` � in ev o U-7 Q2�i ,� o � o 0 � I � � � � � � I - � BlfI1DING A � m � � . COUR3YARD $ � Ca .- u� I 1 � _ � � � R-U-101A R-iJ-t�A ' R-U-101B R-iJ-10�18 R-tl-iC3� i ��A �� .....,. . ...... ...... . .�. _. . _. ._ . 19501 5tevens Creek (3 retail units only) K: \:�R43�D36D49�D�\CONRO��HEET 1 d.01MG SHEE`�' 14 3 2-77 ACKNOWLEDGMENT State of California County of ) On before me, (insert name and title of the officer) personally appeazed , 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 (Seal) LIBD/2364580.4 2-�$