09-087 ECI Two Results Way, M-2008-06VOLUNTARY CONTRII;UTION AGREEMENT
THIS AGREEMENT is made and shall be effective as of July 31 , 2009, by
and between the City of Cupertino (the "City") and ECI Two Results, LLC, a California
limited liability company (the "Developer") for a voluntary contribution of monies for
transportation system improvements.
RECITALS
This Agreement is made with regard to the following facts, intentions and
understandings:
A. Developer is the sponsor of a project l~xated on Results Way and consisting of
three new, two-story office buildings containing 155,500 square feet and atwo-level
parking structure (the "Project"), as shown on the Site Plan attached hereto as Exhibit 1.
B. The City Council approved construction of the Project on September 16, 2008,
pursuant to a Use Permit Modification (M-201)8-03), Architectural & Site Approval
(ASA-2008-050), and Tree Removal Permit ('TR-2008-06) (the "Project Approvals")
C. The City Council approved an amendrnent to the Project Approvals on July 21,
2009, in which they removed Developer's obliigation to make certain improvements to
McClellan Road.
E. In the interest of facilitating improverr~ents that might benefit the Project, the City
and Development wish to enter into this Agreement by which Developer agrees to make a
voluntary contribution to the City for its subsequent construction of other traffic
improvements in the Project area.
AGREEMENT
The City and Developer agree to the following:
1. Developer shall make a voluntary con~:ribution of Two Hundred Thousand Dollars
($200,000.00) in the form of cash or by postir.~g a letter of credit ("Developer's Payment")
at the time that the City issues the final buildi~ig permit for the construction of the first
new office building of the Project (not including Building No. 5). Issuance of final
building permit means that no other permits of any kind will be required by the City for
the Developer to complete construction of the building core and shell and related site
work.
2. In consideration and subject to completion of any required environmental review,
City shall use Developer's Payment only for s~~ft and hard costs reasonably incurred by
the City for improvements and incentives to rE;duce traffic congestion and enhance
pedestrian safety in the area west of Highway 85 and located no more than one-half (1 /2)
mile from the Project site (the "Improvement Area"). City shall keep accurate books and
records tracking all use of Developer's Payment.
3. The parties acknowledge that payments pursuant to this Agreement from
Developer to City are exempt as a "source of income" within the meaning of California
Political Reform Act (pursuant to California Government Code Section 87103.6).
4. Upon request from Developer, City shall provide Developer with a detailed
accounting of City's expenditure of Developer's Payment.
5. The City and Developer shall use reasociable efforts to execute documents and to
perform such acts as are reasonably necessary in connection with the performance of its
respective obligations under this Agreement.
6. The City acknowledges and agrees that under this Agreement, the City is not
committing itself or agreeing to approve any la~ld use entitlements or undertake any other
acts or activities relating to the subsequent independent exercise of discretion by the City,
the City Council, the Mayor, or any other agency, commission or department of the City
and that the actions described herein are subject to the prior approval of City, City
Council, and the Mayor or any other agency, commission or department of the City each
in their sole and absolute discretion.
7. To the fullest extent permitted by law, and related to facts and circumstances
arising from and after the date hereof, City agrees to indemnify and hold Developer and
their respective agents (collectively, the "Indemnified Parties") harmless from and
against any loss, expense, cost, compensation, damages (including foreseeable and
unforeseeable consequential damages), attorne~~s' fees, claims, liens, obligations, injuries,
interest, penalties, fines, lawsuits and other pro~;eedings, judgments, awards, or liabilities
of any kind, known or unknown, contingent or otherwise, equitable relief, mandamus
relief, specific performance, or any other relief (collectively, "Losses") that the
Indemnified Parties may incur as a result of City's use or expenditure of Developer's
Payment. City fully, unconditionally and irrevocably releases, discharges, and forever
waives (collectively, "releases") any and all claims, demands, rights, and causes of action
(collectively, "claims") against, and covenants not to sue or to pay the attorneys' fees and
other litigation costs of any party to sue, Developer or any of its agents for Losses arising
from, accruing from, or due to, directly or indirectly, Developer's Payment or the use
thereof by City.
8. Unless otherwise indicated elsewhere in this Agreement, all written
communications sent by the parties may be by ~:J.S. mail or e-mail, and shall be addressed
as follows:
To City:
Ms. Aarti Shrivastava
Director of Community Development
City of Cupertino
103000 Torre Avenue
Cupertino, CA 95014-3255
2
To Developer:
ECI Two Results, LLC
c/o Embarcadero Capital Partners
1301 Shoreway Road, Suite 250
Belmont, CA 94002
Attn: Blake Reinhardt
with a copy to:
Neil H. Sekhri
Gibson, Dunn & Crutcher
555 Mission Street, Suite 3000
San Francisco, CA 94105
Any notice of default must be sent by registere~~ mail.
10. Attorneys Fees. In the event of any litigation or arbitration between the parties
arising out of the breach by a party to comply with its obligations under this Agreement,
the prevailing party shall be entitled to obtain, ;~s part of the judgment or award, all
reasonable attorneys' fees, costs and expenses incurred in connection with such litigation
or arbitration, except as may be limited by applicable law.
11. This Agreement may be executed in an;~ number of counterparts and each
counterpart shall be deemed to be an original document. All executed counterparts
together shall constitute one and the same document, and any counterpart signature pages
may be detached and assembled to form a singl~.e original document.
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MASTER PLAN
CUPERTINO
August 3, 2009
OFFICE OF THE CITI~' CLERK
CITY HALL
10300 TORRE AVENIIE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 7~%7-3223 • FAX: (408) 777-3366
WEBSITE: www.cupertino.org
ECI Two Results, LLC
c/o Embarcadero Capital Partners
1301 Shoreway Road, Suite 250
Belmont, CA 94002
Attn: Blake Reinhardt
To Whom It May Concern:
A fully executed copy of your agreement with the City of Cupertino is enclosed. If you
have any questions or need additional information, please contact the Community
Deveiopment Department at (408) 777-3308,
Sincerely,
CITY CLERK'S OFFICE
Enclosure
Cc: Neil H. Sekhri
Gibson, Dunn & Crutcher
555 Mission Street, Suite 3000
San Francisco, CA 94105