PC Reso 2024-03CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION N0. 2024-03
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING THAT THE CITY COUNCIL APPROVE
AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR THE
DE ANZA HOTEL PROJECT LOCATED AT 10932 N DE ANZA BLVD
The Planning Commissxon recommends that the City Council find the amendment to the
Development Agreement (DA-2023-003) consistent with the project's Mitigated Negative
Declaration and approve the amendment to the existing Development Agreement (DA-2018-
01), in substantially similar form to the Draft Ordinance attached hereto as Exhibit DA, with
the following modification:
* Development Agreement to require that the project comply with the bird safe and dark
sky ordinance, Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards.
PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City of
Cupertino the 12th day of March 2024, by the following roll call vote:
AYES:
NOES:
ABST AIN:
ABSENT:
COMMISSIONERS: Fung, Lindskog, Mistry, Scharf
COMMISSIONERS:
COMMISSIONERS:
COMMISSIONERS: Madhdhipatla
ATTEST:
APP .1/(. ?,.,,r
DChaVai"rd, FPulannng XCommission
EXHIBIT DA
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT
FOR THE DE ANZA HOTEL PROJECT
In accordance with Cupertino Municpal Code Section 19.144.110 Development Agreement, the
City Council of the City of Cupertino finds that the amendments to a Development
Agreement (DA-2018-01):
A. Is consistent with the objectives, policies, general land uses and programs specified in the
General plan and any applicable specific plan;
General Plan Strategy LU-9.1.3: Economic Development and Business Retention –
Encourages the City attract new businesses and retain existing businesses that provide local
shopping and services, add to municipal revenues, contribute to economic vitality, and enhance
the City’s physical environment. Approving the requested amendment supports and facilitates a
potential revenue generating use for the City, with added community benefits that include
restaurant and community shuttle services. Nothing in the Development Agreement Amendment
revises the scope of the project as approved by the City Council on March 3, 2020 and April 21,
2020, in which the project was found to be in conformance with the General Plan and Zoning
standards applicable to this site, as well as those standards that were amended as part of General
Plan Amendment (GPA-2018-01, Resolution No. 20-006).
B. Is compatible with the uses authorized in, and the regulations prescribed for, the land
use district in which the real property is or will be located;
Nothing in the Development Agreement Amendment revises the scope of the project as approved
by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in
conformance with the General Plan and Zoning standards applicable to this site, as well as those
standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No.
20-006).
C. Is in conformity with and will promote public convenience, general welfare and good
land use practice;
Nothing in the Development Agreement Amendment revises the scope of the project as approved
by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in
conformance with the General Plan and Zoning standards applicable to this site, as well as those
standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No.
20-006). Extending the expiration of the Development Agreement, or future revisions to the
EXHIBIT DA
amount of parking and/or parking layout, to be treated as an Administrative Project Amendment
will not be at odds with promoting public convenience, general welfare and good land use practice.
D. Will not be detrimental to the health, safety and general welfare;
Nothing in the Development Agreement Amendment revises the scope of the project as approved
by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in
conformance with the General Plan and Zoning standards applicable to this site, as well as those
standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No.
20-006). Further, on March 3, 2020, the City of Cupertino adopted the Initial Study and
Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2019079010, and approved
the project. The Development Agreement extends the term of the entitlement up to eight years
from the original entitlement, with no changes to the development scope.
E. Will not adversely affect the orderly development of property or the preservation of
property values; and
Nothing in the Development Agreement Amendment revises the scope of the project as approved
by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in
conformance with the General Plan and Zoning standards applicable to this site, as well as those
standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No.
20-006). The treatment of the amount of parking or revisions to the parking layout as an
Administrative Amendment would not affect the orderly development of the property or the
preservation of property values.
F. Will promote and encourage the development of the proposed project by providing a
greater degree of requisite certainty.
Nothing in the Development Agreement Amendment revises the scope of the project as approved
by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in
conformance with the General Plan and Zoning standards applicable to this site, as well as those
standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No.
20-006). An extension in the number of years for which the project entitlement is valid for and a
reduction in the voluntary community amenity payments would promote and encourage the
development of the proposed project by providing a greater degree of requisite certainty.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES
ORDAIN AS FOLLOWS:
SECTION 1. Adoption.
The Development Agreement is amended as set forth in Attachment A.
EXHIBIT DA
SECTION 2: Severability and Continuity.
The City Council declares that each section, sub-section, paragraph, sub-paragraph,
sentence, clause and phrase of this ordinance is severable and independent of every other
section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this
ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or
phrase of this ordinance is held invalid, or its application to any person or circumstance, be
determined by a court of competent jurisdiction to be unlawful, unenforceable or
otherwise void, the City Council declares that it would have adopted the remaining
provisions of this ordinance irrespective of such portion, and further declares its express
intent that the remaining portions of this ordinance should remain in effect after the invalid
portion has been eliminated. To the extent the provisions of this Ordinance are
substantially the same as previous provisions of the Cupertino Municipal Code, these
provisions shall be construed as continuations of those provisions and not as an
amendment to or readoption of the earlier provisions.
SECTION 3: California Environmental Quality Act.
The City Council declares that no further environmental review is necessary under CEQA
Guidelines section 15162 and that the amendment to the Development Agreement is in
conformance with the previously adopted Mitigated Negative Declaration (State
Clearinghouse No. 2019079010).
SECTION 4: Effective Date.
This Ordinance shall take effect thirty days after adoption as provided by Government Code
Section 36937.
SECTION 5: Publication.
The City Clerk shall give notice of adoption of this Ordinance as required by law. Pursuant
to Government Code Section 36933, a summary of this Ordinance may be prepared by the
City Clerk and published in lieu of publication of the entire text. The City Clerk shall post
in the office of the City Clerk a certified copy of the full text of the Ordinance listing the
names of the City Council members voting for and against the ordinance.
INTRODUCED at a regular meeting of the Cupertino City Council on Aprl 16,
2024 and ENACTED at a regular meeting of the Cupertino City Council on May___,
2024 by the following vote:
EXHIBIT DA
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Sheila Mohan, Mayor
City of Cupertino
Date
ATTEST:
Kirsten Squarcia, City Clerk
Date
APPROVED AS TO FORM:
Christopher D. Jensen, City Attorney
Date
ATTACHMENT A
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
Attention: City Manager
Record for the Benefit of
The City of Cupertino
Pursuant to Government Code
Section 27383
Space Above Reserved for Recorder’s Use Only
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY
OF CUPERTINO AND NORTHWEST PROPERTIES FOR THE DE ANZA HOTEL
PROJECT
This First Amendment to Development Agreement ("Amendment No. 1") is made
by and between the CITY OF CUPERTINO, a municipal corporation (the "City") and
Northwest Properties, a California Limited Partnership ("Developer"), and is dated for
reference purposes as of _____________.
RECITALS
A. City and Developer entered into a Development Agreement dated April
21, 2020 and recorded in the Official Records against certain property described in Exhibit
A (the "Project Site") identified as Document No. 24514911 ("Development Agreement").
Any capitalized term used in this Amendment No. 1 that is not defined will have the
meaning given to such term in the Development Agreement.
B. The Parties acknowledge that Developer has performed all obligations
required under the Development Agreement as of the date of this Amendment No. 1,
including providing payments as described in Section 5.1.1.1.
C. The Parties now wish to amend the Development Agreement as set forth
below.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. TERM OF AGREEMENT. Section 2.2 of the Development Agreement is
hereby revised and restated as follows: “The ‘Term’ of this Agreement shall commence
on the Effective Date and shall expire on the eight (8th) anniversary of the Effective Date,
unless earlier terminated or extended by mutual written consent of the Parties hereto in
accordance with the requirements of Section 8.1, below.”
2. COMMUNITY AMENITY FUNDING. Subsection 5.1.1 of the
Development Agreement is hereby revised and restated as follows: “Community
Amenity Funding. Developer agrees to pay City Five Hundred Thousand Dollars
($500,000.00) in installments as described below, for City’s use in the City Council’s
discretion subject to the following suggested guidelines (“Community Amenity
Payment”), which payment shall be in addition to any Impact Fees otherwise due. Once
paid, each installment of the Community Amenity Payment shall be nonrefundable,
except as provided in Section 5.1.1.1 below.
5.1.1.1 The Community Amenity Payment shall be made in installments as follows:
(1) Within ninety (90) days after the Effective Date, Developer shall pay City a
first installment of the Community Amenity Payment in the amount of Fifty Thousand
Dollars ($50,000.00).
(2) On or before December 1st of each year, beginning on the first December
1st after the Effective Date, until the Community Amenity Payment is paid in full, as part
of each annual review and together with submission of the Annual Review Form,
Developer shall pay City an installment of the Community Amenity Payment in the
amount of Fifty Thousand Dollars ($50,000.00).
(3) In the event the Developer submits for a Building Permit for the core and shell
of the hotel within three (3) years of the Effective Date of the 1st Amendment, the Term
of the agreement is automatically extended for two additional years, for a total of five
years. Otherwise, the Term is only extended for three years.
(4) If Certificate of Occupancy for the Project is issued within five (5) years of the
Effective Date of the First Amendment, Developer shall be relieved of its obligations to
make further payments under Section 5.1.1.1. Nothing in this section shall constitute a
refund of prior payments made under this Development Agreement.
(5) In the event of a Litigation Challenge (described below in Section 9.3), all
unpaid Community Amenity Payment installments shall be postponed until final
resolution of the Litigation Challenge.”
3. ADMINISTRATIVE PROJECT AMENDMENTS. Subsection 8.2.1 of the
Development Agreement is hereby revised and restated as follows: “Upon Developer’s
written request for an amendment or modification to the Project Approvals or
Subsequent Approvals, the City Manager shall determine: (i) whether the requested
amendment or modification is minor when considered in light of the Project as a whole;
and (ii) whether the requested amendment or modification is consistent with this
Agreement and Applicable Law. If the City Manager or his/her designee finds, in his or
her sole discretion, that the proposed amendment or modification is minor, consistent
with this Agreement and Applicable Law, and will result in no new significant impacts
not addressed and mitigated in the MND, the amendment or modification shall be
determined to be an “Administrative Project Approval Amendment” and shall not
require an amendment to this Agreement. Upon the City Manager’s approval, any
Administrative Project Amendment shall be automatically incorporated into the
applicable Project Approvals and this Agreement. Without limiting the foregoing, and
by way of example, after City approval of the Existing Approvals, Developer requests for
lot line adjustments, minor changes in improvement plans, minor changes in land uses
involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle
access points, changes in the amount of parking and parking layout, changes in pathway
alignments, substitutions of comparable landscaping for any landscaping shown on any
final development plan or landscape plan, variations in the location of structures that do
not substantially alter the infrastructure connections, facilities that do not substantially
alter the design concepts of the Project, and minor adjustments to the Site Map or
Property Description may be treated as Administrative Project Amendments.”
4. MISCELLANEOUS. •
a. Incorporation. This Amendment No. 1 constitutes a part of the
Development Agreement and any reference to the Development Agreement shall be
deemed to include a reference to the Development Agreement as amended by this
Amendment No. 1.
b. Effective Date. This Amendment No. 1 shall be effective on the date
that it is signed by both Parties and recorded in the Official Records.
c. Ratification. To the extent of any inconsistency between this
Amendment No. 1 and the Development Agreement, the provisions contained in this
Amendment No. 1 shall control. As amended by this Amendment No. 1, all terms,
covenants, conditions, and provisions of the Development Agreement shall remain in full
force and effect.
d. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of California.
e. Integration. This Amendment No. 1 contains the entire agreement
between the Parties with respect to the subject matter of this Amendment No. 1. Any
prior correspondence, memoranda, agreements, warranties, or representations relating
to such subject matter are superseded in total by this Amendment No. 1.
NOW THEREFORE, the parties hereto have executed this Amendment No. 1 as of
the date set forth above.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the City and Developer have executed this
Agreement as of the Effective Date.
CITY:
CITY OF CUPERTINO, a municipal
corporation
By:
Pamela Wu, City Manager
[Signature must be notarized]
ATTEST:
By:
Kirsten Squarcia, City Clerk
APPROVED AS TO FORM:
By:
Christopher D. Jensen, City
Attorney
DEVELOPER:
NORTHWEST PROPERTIES,
a California limited partnership
By:
Name
:
Its:
By:
Name
:
Its:
[Signatures must be notarized]