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Reciprocal Easement Agreement - SignedALTERNATE MATERIALS AND METHODS / MODIFICATION FORM COMMUNITY DEVELOPMENT DEPARTMENT • BUILDING DIVISION 10300 TORRE AVENUE 4 CUPERTINO, CA 95014-3255 (408) 777-3228 • FAX (408) 777-3333 * bullding4cuoedino.om CU.PERTINO REQUEST FOR MODIFICATION OF CODE (CBC 104,10) REQUEST FOR. ALTERNATE MATERIAL, DESIGN. OR METHOD OF CONSTRUCTION (CBC 904.11, GFC. 111.2.4) To anoly for this merest. comdlele.secfions 1. 2. & 3 fink orivaer) SITE ADDRESS 2-16 Results Way APN See below DATE Owner ECITwo Results LLC A private access and utility agreement addressing maintenance and use is herewith attached. plan for parcel numbers 357-20-041, 042 and 046. .... .. ... ............... PC 1F: ............. Type: .......... ,. ... . Address 1301 Shorewa Road Suite 250 Belmont CA 98002 y. (r .. .:... .... .............. ............. ..... :Permit X. Stones Email. breinhardt@ecp ;Ilc,com Phone,(650)292.4101 1 ... ............ ... ........ ..... .......... .. ......... PLN #; ... ........ Occupancy:....... ..... ..... ... ,..... Dept./Div................................ Floor Area: .............. ..,.......... I... Blake Reinhard) Project, Director Applicand........ ............ t Address.1301 Shoreway Road _ Suite 250, Belmont CA 94002 Job Status: . .. ............. Occ Load; ......... ........ I'........,Tlllo I I Email breinhardt@,ecP Ile com Phone (650)292 4101 Use -of Bldg: ....... 4 ................ It 2 REQUEST: For code modificallona, please stale the applicable code requirement and the extent of relief desired for alternate requests, state the type of system proposed and design methods. Submitplans ifnecessary to Illustrate request Additional sheets or data may be attached. To request that he City of Cupertino allow utilities o cross property lines between erties owned b ECI Two Results LLC as well as ingress and egress between properties as noted per attached site A private access and utility agreement addressing maintenance and use is herewith attached. plan for parcel numbers 357-20-041, 042 and 046. 3 JUSTIFICATIONIFINDINGS OF EQUIVALENCY: Furcode modlflcallons applicant shall Ilonronstmte first sp'9etn, IndlVld Ad reasons exist thatmake,eomphance with the strict letter of the ordinance Imp,raatlbal and that equivalency Is provided.For alternate requesls,. apptteantshaltdamotlsJrale suitability, strength, effeollvenass, fire - resistance, durability, safe( and sanitation itiatis a ulvalenflc the c.da for a similar use. Code Section(s): Attach additional. sheets If necessary. A private access and utility agreement addressing maintenance and use is herewith attached. CONDITIONS OF APPROVAL: petitioner's Si nature:.. .: Project Director / f ... ,.,. .... Posllion: ,. ........ ... Dale:.... :V. ... Reviewed B :... ..... .... ..hdd ,.,,, ,,,,,,, Date ........ The Request la' GRANTED ❑ DENIED Del. Comments: CONDITIONS OF APPROVAL: (r /'� f r p 1-1- 4% �%�_-fitA&OE;�� _ iZU (;4PN No. of Items: .'...t..hh....................... Fee Due: 6l....l.b.. .............. Date paid: ........ ..... t,t ..... Receipt No.: ........... I ........ I......... Processed by: .......... - ................ N t� .... .............. Bu(Idin - Ofticlnl:.. �/r sALVhI1rs ............................ _,.. _........... Prliti:........ r/ �.'c4'� 1 ...... -4-t ...,..... Date:...... .... al Fire Marshal: ......... ...............................I It ..................................... Print: ................ .......... ................ ......... I.... I .......... ........... ....Dale::....................... I.......... . DEPARTMENT ACTION: After determination, coples ta: 1) applicant, 2) parmit filo Alrfaryrr_2010.doc revised 06111110 RECIPROCAL EASEMENT AGREEMENT THIS RECIPROCAL EASEMENT AGREEMENT ("Easement'% which for reference purposes is dated as of January 8, 2013 (the "Effective Date"), is made by and among ECI TWO RESULTS LLC, a Delaware limited liability company, as the owner of Parcel 357-20-042 located in the City of Cupertino, California ("Parcel 042 Owrter"), ECI TWO RESULTS LLC, a Delaware limited liability company, as the owner of Parcel 357-20-041 located in the City of Cupertino, California ("Parcel 041 Owner"), and ECI TWO RESULTS LLC, a Delaware limited liability company, as the owner of Parcel 357-20-046 located in the City of Cupertino, California ("Parcel 046 Owner"). Each of Parcel 042 Owner, Parcel 041 Owner and Parcel 046 Owner is referred to herein as an "Owner" and collectively as the "Owners': RECITALS A. Parcel 042 owner owns in fee that certain real property located in the City of Cupertino, County of Santa Clara, State of California and more particularly known as APN 537- 20-042 ("Parcel 042"); Parcel 041 owner owns in fee that certain real property located in the City of Cupertino, County of Santa Clara, State of California and more particularly known as APN 537-20-041 ("Parcel 041'); and Parcel 046 owner owns in fee that certain real property located in the City of Cupertino, County of Santa Clara, State of California and more particularly known as APN 537-20-046 ("Parcel 046'x. Each of Parcel 042, Parcel 041 and Parcel 046 is referred to as a "Parcel" and collectively as the "Parcels". B. The Parcels are adjoining property parcels that, collectively, comprise the Results Way Campus (the "Property"). The Property is currently developed with a number of commercial office and research and development buildings and associated driveways, parking areas and landscaping, all of which is operated as an integrated office park. C, The Property was improved and developed over a number of years as a single property under one ownership, without regard to the fact that it consisted of more than one legal parcel. Accordingly, utility services, including electrical, water, telecommunications and sanitary sewer service (each a "Utility" and collectively the "Utilities") have been provided via conduit, pipes, wires and other facilities and infrastructure (collectively, 'T'acilities") that may originate from a neighboring parcel rather than directly from a public street, public right of way or Utility -controlled easement. Additionally, access between parcels and the public right of way occasionally cross parcel lines ("Access"), D. The City of Cupertino now requires that in such circumstances, the owners of real property parcels that share Utility services or rely on adjacent parcels for Utility services or Access enter into easements formally authorizing and confirming such arrangements. Accordingly, each Owner wishes to enter into reciprocal easement arrangements with each other Owner to so formally authorize and confirm the shared Utility services and Access located at the Property, and the instances in which one or more Utility service or Access is provided to one Parcel directly or indirectly through Facilities located on another Parcel. 102 NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions set forth in this Easement, each Owner hereby agrees with each other Owner as follows: . 1. Grant of Easement. a. With respect to the Easement granted in paragraph 1(b) below, each Owner granting the Easement is referred to as a "Grantor Owner" and the Parcel owned by such Grantor Owner is referred to as a "Burdened Parcel", and each Owner that is the beneficiary of such Easement is referred to as a "Benefited Owner" and the Parcel owned by such Benefited Owner is referred to as a `BenefitedPareel". b. Each Owner, as a Grantor Owner, hereby grants to each of the other two Owners, as Benefited Owners, a perpetual reciprocal easement over, upon and across the Burdened Parcel owned by such Grantor Owner, for the benefit of each Benefited Parcel owned by the relevant Benefited Owner, for the purpose of authorizing and confirming the right of each such Benefited Owner to receive Utility services through Facilities located on, over, under and across the Burdened Parcel. The Easement granted hereby shall burden and run with the land. 2. Maintenance. Except as may be otherwise agreed between or among the Owners, the Benefited Owner or the relevant Utility and Access provider shall, without cost or expense to the Burdened Owner, maintain, repair and, as necessary, replace the Facilities utilized by the Benefited Owner such that the same are always in good repair and sound condition, free of defects and other conditions that would constitute a safety hazard, or would present an unsightly condition out of keeping with the status of the Property as a'first class office/R&D project. 3. Lrdemnitieatimr. Each Benefited Owner hereby agrees to indemnify, defend, protect and hold harmless each Burdened Owner, and its officers, directors, owners, managers, members, partners and employees (collectively, the "Burdened Owner Parties") from and against any and all claims, demands, liabilities, losses, costs, damages, liens, suits, judgments, taxes and penalties, including without limitation, reasonable attorneys' fees and costs, expert witness fees and costs and court costs (excepting consequential damages) (collectively, "Cla nrs"), actually incurred by the Burdened Owner and/or the Burdened Owner Parties and which are caused by the Benefited Owner and/or the Benefited Owner's agents, consultants and contractors (collectively, the "Benefited Owner Parties'% in the exercise of the rights granted by this Easement, except to the extent that such Claims are attributable to the gross negligence or willful misconduct of the Burdened Owner or the Burdened Owner Parties. 4, Term; Amendment. The Easement shall continue in force in perpetuity. This Easement may only be amended in a writing executed by all the Owners, provided that the Owners of any two adjacent Parcels may modify this Easement insofar as it affects only those two Parcels and does not in any way modify or impair the rights of the third Owner hereunder. 5. Subject to Laws and Senior Riuhts. This Easement and the rights hereby shall at all times be subject to any and all laws, ordinances, and governmental regulations and orders, whether federal, state, county or city applicable to the Property. This Easement is subject to all matters of record as of the Effective Date, including any and all easements, restrictions, reservations, mortgages, trust deeds and other rights, and to any and all rights and conditions which would be disclosed by inspection of the Property or due inquiry (collectively, the "Existing Rights and Conditions"), and to the extent the terms of this Easement conflict with the terms of any Existing Rights and Conditions, the terms of such Existing Rights and Conditions shall take precedence, and this Easement shall be automatically deemed to be modified to accommodate the same. b. No Liens. Each Benefited Owner making use of its rights hereunder shall keep the Burdened Parcel(s) free of contractor's or materialrnen's liens arising out of activities undertaken by or on behalf of such Benefited Owner in the exercise of such rights, and shall cause any claim of lien arising from such activities to be removed within ten (10) days. 7. No Warranties, Each Burdened Owner makes no representation or warranty to the other Owners regarding (i) the condition of title of any portion of the Property, (ii) the condition of any portion of the Property and soils or improvements thereon or thereunder, or (iii) the suitability of any portion of the Property for the uses intended by this Easement. 8. Miscellaneous. a. Successors and Assians. The terms and conditions of this Easement shall be binding upon and inure to the benefit or burden of the parties hereto and their heirs, legal representatives, successors, and assigns. b. Notices. Any notice permitted or required herein may be delivered either personally or by U.S. mail, certified or registered, return receipt requested, with all postage prepaid or by messenger or courier service which provides one day delivery service with written confirmation of delivery. if delivery is by mail, it shall be deemed effective on the date of receipt or refusal by the addressee, as evidenced by the date on the return receipt, or, if no such date is specified on the return receipt, seventy-two (72) hours after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to each person at the address set forth above or to such other address or addresses as either party may from time to time designate in writing to the other. At this time each Owner's address for notice is: ECT Two Results LLC c/o Embareadero Capital Partners LLC, 1301 Shoreway Road, Suite 250 Belmont, California, 94002 Attention: Eric Yopes C. Time. Time is of the essence for the payment and performance of all obligations under this Easement. d. Covenant of Further Assurances. The parties hereby agree to execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Easement. C. Attorneys' Fees and Costs. In the event of any controversy, claim or action, whether based on contract, tort or other cause of action, being filed between the parties respecting or in any way relating to this Easement, the prevailing party shall be entitled, in addition to all expenses, fees, consultant and expert witness fees, costs or damages, to reasonable attorneys' fees, whether or not such controversy was litigated or prosecuted to judgment, including without limitation, all fees, costs and expenses incurred in connection with any proceedings under the United States Bankruptcy Code involving any party to this Easement. Any attorneys' fees and other costs and expenses incurred by either party in enforcing a judgment in its favor under this Easement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Easement and to survive and not be merged in any such judgment, f. Partial Invaliditv. If any term, covenant or condition of this Easement or its application to any persons or circumstances shall be held to be invalid or unenforceable, the remainder of this Easement and the application of such term or provision to other persons or circumstances shall not be effected, and each term hereof shall be valid and enforceable to the fullest extent permitted by law. g. Governing Law. This Easement is entered into and shall be governed by and construed in accordance with the laws of the State of California. It. No Waiver. No consent or waiver by any party to or of any breach or non- performance of any representation, condition, covenant or warranty shall be enforceable unless in a writing signed by the party entitled to enforce performance, and such signed consent or waiver shall not be construed as a consent to or waiver of any other breach or non-performance of the same or any other representation, condition, covenant, or warranty. i. Recitals. All recitals referred to in this Easement are incorporated herein by reference and shall be deemed part of this Easement. j. Authority. Each of the individuals executing this Easement on behalf of a party individually represents and warrants that he or she has been authorized to do so and has the power to bind the party for whom they are signing. [Balance of Page Intentionally Left Blank; Signatures Appear on the Following Page] IN WITNESS WHEREOF, the parties hereto have executed this Reciprocal Easement Agreement as of the date and year first above written. "Parcel 042 Owner" ECI Two Results LLC, a California limited liability company By: Embarcadero Capital Investors Two LP, n Delaware limited partnership, its sole ractnber By: Embarmciero Capital Partnets LLC, n Delaware limited liability company, its sole gencrat partner By: Hamilton Partners LP, a California limited partnership, manager By: Hamilton Ventures Inc., a California corporation, its sole general partner B zv' : 7 John Mat ton, President "Parce104 Owner" ECl `Pwo Results LLC, a California limited liability company By: Embarcadero Capital Investors Two LP, a Delaware limited partnership, its sole member By: Embarcadero Capital Partners LLC, a Delaware limited liability company, its sole general partner By: IIamilton Partnets LP, a California limited partuerslip, manager By; Hgmilton Ventutes Inc., a California corporation, its sole general partner By:x(f�] John Hae{iiltou, President l G°Parcel 046 Owner" ECI'I'wo Results LLC, a California liunited liability company By: 13mbarcadero Capital Investors'I'wo LP, a Delaware limited partnership, its sole manil er By: Embarcadero Capital Partners fIC, a Delaware limited liability company, its sole general partner By: Haanilton Partners LP, a California limited partnerslup, manager By: Hamilton Ventures Inc, a California corporation, its sole general partner -W .'"tip .' By: John -Iat 'ltoil, President