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15. 21255 Stevens Creek Blvd. CC&R's and Parcel MapOFFICE OF PUBLIC WORKS CITY HALL 10300 TORRE AVENUE - CUPERTINO, CA 95014 -3255 (408) 777 -3354 • giiZ ineerin cupertuio.org FAX (408) 777 -3333 CUPERTINO CITY COUNCIL STAFF REPORT Agenda Item No. Agenda Date May 4, 2010 Application: for a Parcel Map and associated documents related to the subdivision and development of the parcel currently containing the Oaks Shopping Center at 21255 Stevens Creek Boulevard (APN 326 -27 -035) Applicant: Modena Investment LP & Sunnyvale Holding, LLC Application Summary: Parcel map and associated documents related to subdivision and development of the parcel currently containing the Oaks Shopping Center at 21255 Stevens Creek Boulevard, APN 326 -27 -035, pursuant to the approved tentative map for a mixed unit development; Modena Investment, LP, and Sunnyvale Holding, LLC, tenants -h - t- common: a. Parcel Map b. Associated documents include a: • Declaration of Covenants, Conditions and Restrictions and Establishment of Easements Affecting Land; • Deferred Improvement Agreement; and • Declaration of Restrictive Covenants, RECOMMENDATION: That Council a. Adopt a resolution approving a: • Declaration of Covenants, Conditions and Restrictions, and Establishment of Easements Affecting Land; • Deferred Improvement Agreement; and • Declaration of Restrictive Covenants, Resolution No. 10- 0 97 (Attachment A), and authorize City execution of the Restrictive Covenant. U61M Oaks Shopping Centex Parcel Map May 4, 2010 Paze 2 Through these agreements and declarations, the owners agree to the terms and restrictions set forth by the City of Cupertino for the subdivision of an 8.1 acre parcel into two parcels of approximately 2.6 acres and 5.5 acres. b. Adopt a resolution approving a Parcel Map, Resolution No. 10 - - 019 (Attaclunent B). Approval of the parcel map permits the map to be forwarded to the County for recording, which completes the subdivision. BACKGROUND: On September 2, 2008, Council approved a tentative map for subdivision of the subject 8.1 net acre parcel into two parcels of approximately 2.6 and 5.5 acres in size (as shown on Attachment C), with the 2.6 acre parcel to be further subdivided into two commercial condominium units and a common area lot (as shown on Attachment D). Staff and Council voiced concerns over subdivision of the Oaks site, inasmuch as subdivision would open the way to multiple owners and the potential for difficulties in coordinating development of the overall site. The project applicant responded to these concerns by stating that financing for the project could be obtained only if the subdivision of the property were approved. As a further measure to 'limit the aforementioned difficulties in coordinating development of a subdivided site, the City Council added an additional condition to the approval noted in the minutes of the September 2, 2008 Council meeting (Attachment E). The above condition was included in the amended City Council Action letter dated February 17, 2009 and is duplicated below: "Require a CC &R that restricts ownership of parcel #1 and condo lots for 4 years unless building permits are obtained and substantial construction is commenced. Otherwise, ownership of mixed -use area reverts back to the shopping center owner. Both condo lots 1 and 2 must be under the same ownership subject to city attorney review." DISCUSSION: The declaration of restrictive covenants (Attachment A) has been developed by the applicant's attorney and reviewed by the City Attorney. The restrictive covenants meet the conditions required by Council as follows: • Requires that any future condominium created from Parcel "A" (which would include the condo lots for the hotel, mixed -use building and shared common area) must be kept in a beneficial ownership until development occurs; and 15 -2 Oaks Shopping Center Parcel Map May 4, 2010 Paze 3 • Requires filing of a lot-line adjustment to merge: i. The future Condo Unit 1 (mixed -use condo) and the portion of the common area related to condo unit 1; and ii. Parcel "B" (shopping center parcel) • Allows the City to merge the aforementioned parcels if the applicant fails to obtain a building permit and commence substantial construction within four years of the date of approval of the use permit (including any extensions). Per City Council direction, and as written in the declaration of restrictive covenants, the future Condo Unit 2 (hotel condominium') and the remainder of the common area need not be merged back into Parcel "B" (shopping center parcel), regardless of whether hotel development occurs. It is to be treated as a separate parcel. It should also be noted that this restrictive ownership covenant, while recorded on the property, does not take effect until a condominium plan has been approved and recorded on the property, and a lot line adjustment to allow the potential merger of the Condo Unit 1 (mixed -use condo) and Parcel B (shopping center parcel) . The condominium plan and the lot line adjustment have not been submitted with the parcel map under review. The property owner has stated that due to economic reasons he intends to file it later. The required subdivision map does not obviate the use permit conditions which are set to expire on September 2, 2012. While under most circumstances the City would not be a signatory to a restrictive covenant on private property, in this instance the City would be one of the signatories since the Restrictive Covenant is also functioning as an agreement between the developer and the City. Fiscal Impact Approval of the parcel map and the assocciated documents is a ministerial act with no direct fiscal impact to the City. Prepared by: Glenn Goepfert, Assistant D:irectur of Public Works Colin Jung, Senior Planner 15 -3 Oaks Shopping Center Parcel Map Reviewed by: 1"&6 (j, arti Shrivastava Community Development Director Approved by: May 4, 2010 Page 4 l�� David W. Knapp City Manager ATTACHMENTS: Attachment A: City Council Resolution No. 10- qgj for the declarations and agreement Attachment B: City Council Resolution No. 10- 0 approving a Parcel Map Attachment C: Boundaxy & Location Map for Parcel Map Attachment D: (Condominium) Unit Location Plan Attachment E: Excerpt of City Council Meeting Minutes date 9/2/08 15 -4 Attachment A RESOLUTION NO. 10- 0 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING A DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMENTS AFFECTING LAND, A DEFERRED IMPROVEMENT AGREEMENT, AND A DECLARATION OF RESTRICTIVE COVENANTS BETWEEN THE CITY OF CUPERTINO, MODENA INVESTMENT, LP, AND SUNNYVALE HOLDING, LLC, 21255 STEVENS CREEK BOULEVARD, APN 326 -27 -035 WHEREAS on or about September 2, 2008, the City of Cupertino approved a Tentative Map for the subdivision of the Property, consisting of an 8.1 net acre parcel of land into two (2) parcels of approximately 2.6 acres and 5.5 acr -.s in size, with the 2.6 acre parcel to be further subdivided into two (2) commercial condominium units and a common area lot; and WHEREAS through the Declaration of Covenants, Conditions and Restrictions and Establishment of Easements Affecting Land, the owners agree to mutual equitable servitudes in favor of affected lands, and to create reciprocal rights and obligations between and among each owner; and WHEREAS through the Declaration of Restrictive Covenants, the owners agree to not transfer interest in the proposed condo units, referred to in the restrictive covenants, for a specified period of time, and agree to record a lot Pule adjustment, as specified by the restrictive covenants; and WHEREAS through the Deferred Improvement Agreement with the City, the applicants, in order to obtain a building permit, will be obligated to bond and construct city - specified improvements along the street frontage of their building site, within a 48 month period; and WHEREAS there has been presented to the City Council for approval and for authorization to record a Declaration of Covenants, Conditions and Restrictions and Establishment of Easements Affecting Land; and for approval and authorization to execute and record a Deferred Improvement Agreement and a Declaration of Restrictive Covenants, located at 21255 Stevens Creels Boulevard. NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL HEREBY a. Approves said declaration of covenants, conditions and restrictions and establishment of easements affecting land; b. Approves said deferred improvement agreement, and authorizes the City Manager to execute said deferred improvement agreement; 15 -5 c. Approves said declaration of restrictive covenants, and authorizes the City Manager to execute said declaration of restrictive covenants. PASSED AND ADOPTED at the regular meeting of the City Council of the City of Cupertino this 4 th day of May 2010, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 15 -6 R 1w 1 P' "j, Tl Y!TIA A l' !V'T it 7 i r t;:r r,- 35- ` y B !? V RRE .m :�..._ �� ` �,�' r � - ��' .i`-� �r.,e �a'"+°� �-�, s1 .. � Cr'r �Na"','' "� ��f� �yr4h ��Y � � �,�.. � � 'l�s �y..n� � x.Cn �.. - t 5� ? K �v '�S 1 t y T, � i, 4- 4::.4,��C1e. :r7.� � �� F :�F' - '?°:h Jr�+. �a,;.� �t 'r4. � 4'�- ..,s'yy'� ' ".'.``k�.. d"r.. � v .a 7, A� 7 Recording Request By The City of Cupertino and When Recorded Return To City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 -3255 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMENTS AFFECTING LAND WHEREAS Declarants MODENA INVESTMENT, LP, a California limited partnership, and SUNNYVALE HOLDING, LLC, a California limited liability company, tenants -in common fee owners (being referred to herein as "Declarants ") of that certain real property situated in the City of Cupertino, County of Santa Clara, State of California (the "Property ") described as: See Exhibit A hereto for Legal Description of the "Property ". WHEREAS on or about September 2, 2008, the City of Cupertino approved a Tentative Map for the subdivision of the Property, consisting of an 8.1 net acre parcel of land into two (2) parcels of approximately 2.6 acres and 5.5 acres in size, respectively Parcels A and B, with one parcel (Parcel A) to be further subdivided into two commercial condominium units and a common area lot. WHEREAS the Final Parcel Map more particularly describes the approximately 2.6 acres as: See Exhibit B hereto for Legal Description which parcel shall, hereafter be referred to simply as "Parcel A "; WHEREAS the Final Parcel Map more particularly describes the approximately 5.5 acres, (Parcel B) that includes the commercial shopping center commonly known as the 'Oaks Center as: See Exhibit C hereto for Legal Description WHEREAS Declarants intend, by this Declaration, to impose upon each parcel of land comprising the Property now described herein as "Parcel An and "Parcel B" (i) mutual equitable servitudes in favor of all such Property and (ii) to create reciprocal rights and obligations between and among each Owner of such Parcels for the time when Declarants transfer, if at all, their fee simple interest, fractionally or in its entirety to prospective Owners. 15 -8 WHEREAS Declarants intend that Parcels A and B, as described in Exhibits B and C, respectively, be made subject to the covenants, conditions, restrictions and non - exclusive easements affecting land contained within t1is Declaration. WHEREAS each of the restrictions in this Declaration is intended to run and will run with the land and each Parcel of land as herein -above described, is and will be affected and burdened by the covenants of its Owner(s) for the benefit of the other Parcel(s) in the Property and their respective heirs, successors and assigns. WHEREAS Declarants will hereafter hold, lease and convey title to the land comprising the Property, subject to the covenants, conditions, easements and restrictions set forth in this Declaration. (hereafter, "Restrictions"). NOW, THEREFORE, Declarants hereby covenant, agree and declare that all of their interest, as the same may from time to t me appear in and to the land comprising the Property, will be held, transferred, sold, lased, occupied and conveyed subject to the following covenants, conditions, easements and restrictions which are hereby declared to be for the benefit of said interest in the Property and that such Restrictions shall run with the Property on every part thereof or interest therein and they shall be binding upon all parties having or acquiring any right or title in said interests or any part thereof and upon their Occupants and respective heirs, successor: and assigns. ARTICLE I: EASEMENTS 1.1. Ingress and Egress Each Owner of a Parcel comprised by the Property shall have the right to a non - exclusive easement for vehicular and pedestrian ingress and egress appurtenant to each parcel for the benefit of such Owner and of its Occupants, customers or invitees under, over, upon, and across the entry driveways into the Property from Stevens Creek Boulevard and Mary Avenge, including any future reconfiguration thereof and under (below level /underground) over, .upon and across the parking areas and spaces, driveways and access ways, sidewalks and walkways, exits and entrances, and other common areas, as such areas shall, from tirne to time, be developed, altered or modified for ingress and egress to and from such Owner's parcel for the benefit of such Owner and of its Occupants, customers and invitees. This Section 11 will not create any rights in any parties other than the Owners, and no Owner will have the right to grant easements for ingress, egress, parking or use of the Common Area to any third party who is not an Owner or Occupant and then only as it is consistent with the terms and conditions of this Declaration. 1.2. Parking. Each Owner of a parcel comprised by the Property shall have the right to a non- exclusive easement for the ;purpose of vehicular parking under (below level /underground), across and upon the Common Area of such Parcel designated for parking and then in accordance with reasonable rules and regulations then prevailing over such parking areas for the benefit of Owner and of its Occupants, customers and invitees. Such parking spaces shall be used for nca purpose other than for temporary parking of Owner and of its Occupants, customers and invitees. Employees of Owner and of its Occupants may be required to park only in areas designated for them for such purpose. No overnight parking will be permitted in the Common Area designated for vehicular. parking Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Page�2 except as may be authorized by Owner and /or Occupants under the terms of a lease as provided in Section 1.5, below, or in connection with any authorized activity of Owner and /or Occupants that requires such overnight parking and that is compliant with requirements of the City of Cupertino. Under no circumstances shall such overnight parking be permitted for inhabitation and /or sleeping purpose of anyone. 1.3. Utility Lines Each Owner of a parcel comprised by the Property shall have the right to non - exclusive easements under, through and across the Common Area for the installation, maintenance, repair and replacement of water drainage systems or structures, water mains, storm drains, sewers, water sprinkler system lines, telephone or electrical conduits or systems, gas mains, transformers and other facilities for utilities necessary for the orderly development and operation of the Common Area and of each Building in the Property. The rights granted pursuant to such easements will at all times be exercised in such manner as to cause the least interference with the rights of other Owners and with the normal operation of the Property. Except in an emergency, the right of any Owner to enter upon the parcel of another Owner for the exercise of any right pursuant to such easements will be conditioned upon obtaining the prior written consent of such other Owner, subject to Section 8.15 of this Declaration. All such systems, structures, mains, sewers, conduits, lines and other facilities, (excepting transformers), for utilities will be installed and maintained below the surface or ground level of such easements. Should an Owner deem it necessary to cause the installation of a storm drain, electric line, sewer or other utilities across the Common Area of any other parcel subsequent to the initial paving and improving thereof, the Owner thereof agrees not to unreasonably withhold the granting of any necessary additional easements, provided that in no event will such installation be permitted if it would unreasonably interfere with the normal operation of any business of the Property; and provided further, the Owner making or causing such installation will, at its expense, completely restore to the previously existing or better condition all Common Area Improvements and surfaces disrupted as a result of such installation. In the event it should be necessary to grant any of the foregoing easements and rights to local utility companies as a condition of their providing or continuing service, such rights will be granted at no cost so long as the Owners required to execute such instruments deem the terms and conditions of such a grant to be reasonably acceptable and consistent with this Declaration. 1.4. Drainage Easement Each Owner of a parcel shall have a non - exclusive easement over parcels of other Owners comprised by the Property for surface water drainage over and through the existing drainage patterns and storm water drainage systems or such other drainage patterns that may be established from time to time among the Parcels in accordance with the Declaration or this First Amended Declaration. Nothing herein will prevent an Owner from relocating or otherwise altering the drainage patterns established upon such Owner's parcel subject to this Declaration, provided, however, that such relocation or alteration of drainage patterns does not materially interfere with, impede or otherwise adversely affect the permitted operation of existing drainage patterns on or under Parcels of other Owners. 1.5. Transfer of Rights to Occupants Notwithstanding anything to the contrary herein provided, an Owner may transfer and assign the easement rights contained in this Article I to its Occupants, pursuant to a duly executed lease in which easements rights are expressly transferred and assigned to Occupants subject to the terms and conditions of this Declaration and such Occupants expressly agree to comply with such terms and conditions. Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 19 i Notwithstanding any agreement to the contrary in any lease, Owner shall not be relieved of Owner's obligations hereunder and Owner shall be deemed jointly and severally responsible and liable with Occupants for Occupants' breach of such obligations. In any transfer and assignment of easement rights to Occupants in connection with the transfer or assignment of the leasehold interest, Owner shall (a) obtain an indemnity agreement from Occupants for the benefit of Owner and all other Owners of the Property that may be damaged by the Occupants' breach of obligations hereunder and (b) contractual liability insurance coverage that will cover such indemnity agreement. Owner shall not, in connection with such transfer or assignment, modify the easement rights as stated in Article I of this Declaration and those transferred and assigned rights shall automatically revert to the Owner upon termination of the lease with Occupants or upon Occupants' unauthorized transfer, as is provided in this Section 1.5. Occupants shall have no right to transfer and assign easement rights in this Article I e)ccept in connection with the Owner's written consent to the transfer of the leasehold interest and then only when all of the following requirements are met (i) when such leasehold interest is .transferred in connection with the transfer as may be allowed by such lease encumbering the respective leased premises; (ii) when such transfer is compliant with this Declaration, as may be amended from time to time, and (iii) the transferee agrees to take subject to and to comply with all terms of Occupants under the lease as they relate to the obligations under this Declaration. ARTICLE Il: COMMO AREA, MAINTENANCE 2.1. Common Area Use The Commor Area will be used for: (a) Parking of motor vehicles, and for pedestrian and vehicular ingress and egress by Occupants, their agents, employees, custorners and other invitees, to and from Buildings, Common Area and adjacent public streets; (b) Parking stalls, private streets, seating areas and sidewalks (excluding Service Facilities), walls, ramps, driveways, lanes, curbs, gutters, flagpoles, bike racks, newspaper sales racks, public telephones, bus stops and similar facilities for accommodating public transportation, traffic control areas, signals, traffic islands, landscaped areas, traffic and parking lighting facilities and monument : >igns with appropriate underground electrical connections, and all things incidental thereto; (c) Public utility installations serving Buildings or the Common Area which will, if reasonably possible, be underground; (d) Ingress and egress of delivery and service vehicles to and from the Property or any portion thereof and adjacent public streets; (e) Delivery of goods, wares, merchandise and the retention of services to Owners and Occupants of the Property; (f) Perimeter walls and fences; (g) If required by Law or reasonably required by the City of Cupertino's waste franchisee /hauler, recycling facilities or pickup points; Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Page 4 15-11 (h) Any centralized trash and recyclables collection facility, regardless of where it it is currently planned to be located or where it may currently be located or where it may,at any time in the future be re- located within the Property. (i) Lighting standards and any other landscaping or Common Area Improvements as may be required by Law or as may be consented to by the Owner(s) of the Parcels; and in addition, the Common Area may be used for the following purposes: (i) in connection with the construction and maintenance of utility lines so long as such activity is undertaken in strict compliance with the requirements of Section 1.3 of this Declaration; and (ii) for any other use required by Law. No Building, barricade, structure or other Improvements may be placed, erected or constructed within the Common Area on any Parcel except trash enclosures, pylon and other free - standing signs (to the extent not herein prohibited) and directional signs, bumper guards or curbs, paving, landscaping and landscape planters, lighting standards, driveways, sidewalks, walkways, parking stalls, columns or pillars supporting roof overhangs, and any other Improvements as may be required under Laws or are otherwise permitted by this Agreement. 2.2. Maintenance of Common Area (a) Owner will, at its own expense, cause the Common Area located on its Parcel to be maintained at all times in a safe, good and clean condition and repair, including, without limitation, the following: (i) Maintaining the paved surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally installed or such substitute as will in all respects be equal or superior in quality, use and durability including seal coating the parking lot within such Owner's Parcel not less frequently than once each five (5) years from the time that such surfaces were last paved in compliance with the herein requirements. (ii) Removing, as part of Owner's duty to maintain the Common Area, all papers, debris, filth and refuse, and thoroughly sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly condition. (iii) Placing, keeping in repair, and replacing appropriate directional signs, markers, lines and parking stall lines, where necessary; (iv) Operating, keeping in repair, and replacing such artificial lighting facilities as may be reasonably required by governmental agencies governing the Parcels herein; (v) Maintaining all landscaped areas and repairing automatic sprinkler systems or water lines and replacing shrubs and other landscaping as is necessary; (vi) Maintaining and repairing any and all walls and utilities; (vii) Maintaining free and unobstructed access to and from its Parcel and the adjoining portions of the Property and to and from its Parcel and the streets adjacent thereto; and Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jdl 10609 ;tgn (viii) Maintaining the centralized trash and recyclables collection facility The Owner or Occupant undertaking such work will take all measures necessary to minimize any disruption or inconvenience caused by such work. Such work will be accomplished by the Owner or Occupant undertaking it in a reasonable manner so that any damage or adverse effect which might be caused by such work to any other Owner or Occupant or to any Parcel (including the Parcel on which the work is being accomplished) is minimized. The Owner or Occupant undertaking such work will repair at its own cost any and all damage caused by such work and will restore the affected portion of any Parcel (including the Parcel upon which such work is performed) to a condition which is equal to or better than the condition which existed prior to the beginning of such work. In addition, the Owner or Occupant undertaking such work will pay all costs and expenses associated therewith and will indemnify, protect, defend and hold all other Owner(s) and Occupants from all liabilities, damages, losses, costs, expenses or claims arising out of, in connection with or attributable to the performance of such work. Except in cases of emergency (in which event concurrent notice or no notice appropriate under the circumstances will be all that is required), all such work which causes disruption or inconvenience to any other Owner or Occupant or to any Parcel (including the Parcel on which the work is being accomplished) will be undertaken only after giving all Owners ten (10) days prior written notice of the work to be undertaken, the scope and nature of the work, the duration of the work and the area in which the work is to be performed. (b) Building and Outdoor Seating Area Maintenance Each Owner will, at its sole cost and expense, maintain its Building and Service Facilities in first class order, condition and repair, including, without limitation, periodic painting of the exterior of the Building, maintaining the sidewalks adjacent to the Building, and making other repairs necessary to keep the Building and Service Facilities in first class order, condition and repair. In addition, each Owner whose Parcel contains outside seating areas for eating establishments will ensure that such seating does not interfere with pedestrian or vehicular traffic. (c) Owner's Right to Cure or Abate If any Owner (a "Defaulting Owner") violates this Section 2.2 or permits or suffers any Occupant of its Parcel to violate this Section 2.2, then in addition to any other remedy provided for in this Agreement, any Owner (each or together, as applicable, the "Creditor Owner ") may demand by written notice (the "Default Notice ") that the violation be cured. If the Defaulting Owner does not cure the violation of a monetary obligation within ten (10) days after delivery of the Default Notice, or if such non - monetary default is of a kind that cannot reasonably be cured within thirty (30) days and the Defaulting Owner does not within such thirty (30) day period commence to cure such default and diligently thereafter prosecute such cure to completion, then the Creditor Owner (and its agents and employees) will have the right to (i) pay any sum owed by the Defaulting Owner to the person entitled thereto, (ii) ender upon the Parcel of the Defaulting Owner (or any portion of the Common Area owned by the Defaulting Owner) and summarily but without committing breach of the peacE!, abate, remove or otherwise remedy any Improvement, thing or condition which violates this Section 2.2, and (iii) enter upon the Parcel of the Defaulting Owner (or any portion of the Common Area owned by the Defaulting Owner) and perform any obligation of the Defaulting Owner to be performed thereon. The Defaulting Owner will, within ten (10) days of receipt of written demand by any other Owner, accompanied by appropriate supporting documentation, reimburse the Creditor Owner for all reasonable costs and expenses incurred by the Creditor Owner in undertaking any of the actions permitted by clauses (i) through (iii) in the preceding sentence, including without limitation, wages, benefits and overhead allocable to the time Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Page 6 15 -13 expended by any employee of the Creditor Owner in taking such actions, together with interest thereon accruing from the date such costs and expenses were advanced or incurred by the Creditor Owner, at the Default Interest Rate (as herein defined). For purposes of this Agreement, the "Default Interest Rate" is the rate equal to the lesser of: (i) four percent (4 %) per annum in excess of the "Prime Rate," or (ii) the highest lawful rate. The "Prime Rate" will be the rate announced as such from time to time by Bank of America or its successor. 2.3. Common Area Utilities: Common Area artificial lighting facilities, water lines and other utilities will be separately metered to the Parcel on which they are located. Lighting for the Common Area (other than lighting necessary for security of the Property) will remain on each day until at least midnight (unless to do so is contrary to any Law, in which event the standard so prescribed will be adhered to while in effect). Lighting representing not less than twenty -five percent (25 %) of full intensity of the Common Area lighting system uniformly distributed throughout the Common Area, will remain on each day after midnight until dawn for security purposes, unless to do so is contrary to any Law or applicable standard or requirement, in which event, the standard so prescribed will be adhered to while in effect. If "special" lighting (other than lighting necessary for security of the Property) is required or if regular lighting is required for a time later than the foregoing by any Owner or Occupant of the Property, then the electricity to service such lighting requirements will, if reasonably feasible, be separately metered and all expenses thereof will be paid by such Owner(s) or Occupant(s) that require the special service. Should separate metering not be possible or economically feasible, then the majority of the Owners and Occupants based on square footage of leased space shall agree to a reasonable allocation of "special" lighting costs. ARTICLE ill: RESTRICTIONS 3.1 Use Types The types of uses permitted in Parcel B will be of a retail and /or commercial nature found on comparable properties of similar size in the City of Cupertino metropolitan area as such may be defined by the City of Cupertino Chamber of Commerce, and, in all events, uses that are consistent with the use of Parcel B. The types of uses permitted in Parcel will be Hotel and office use and uses related thereto. All uses in the Property must comply with all requirements imposed by the City of Cupertino. No overnight parking will be permitted in the Common Area except as may be authorized by Owner and /or Occupants under the terms of a lease or in connection with any authorized activity of Owner and/or Occupants that requires such overnight parking and it is compliant with requirements of the City of Cupertino. Under no circumstances shall such overnight parking be permitted for inhabitation and /or sleeping purposes of anyone. 3.2. Exclusive Uses In that this Declaration is being made at a time when Declarants' Property is subject to leases under which Declarants have committed themselves to certain Occupant's exclusive uses, this Declaration_shall have no retroactive application to them and Declarants, in acknowledging such pre - existing exclusives uses, shall not do or cause anything to be done so as to affect such contractually committed exclusive uses, consistently with the provisions of Section 8.14 and indemnity provisions of Section 5.1. 3.3 Enforcement: Each Owner covenants that it will make good and reasonable efforts to enforce the covenants set forth in Sections 3.1 and 3.2, including the commencement of arbitration proceedings under Section 8.16(a) -(b) or the commencement Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 p ge 1� -14 of an action under Section 8.16(c) to prevent or to terminate any violation of the provisions of Sections 3.1 and 3.2. ARTICLE IV: PYLON SIGN (Deleted) ARTICLE V: INDEMNIFICATION AND INSURANCE 5.1. Indemnification: Each Owner ( "Indemnifying Party) hereby indemnifies, holds harmless and defends the other Owner ( "Indemnified Party(ies) ") from and against all claims, damages, expenses (including, without limitation, reasonable attorney's fees and reasonable investigative and discovery cost), liabilities and judgments on account of injury to persons, loss of life, or damage to property occurring on its Parcel caused by (i) the business activities of the Occupants and Owners, including, without limitations, liability arising out of Article III, and (ii) the active or passive negligence or willful misconduct of the Indemnifying Party, its agents, servants or employees; provided, the Indemnifying Party does not indemnify the Indemnified Party against any injury, loss of life, or damage which is caused by the active or passive negligence or willful misconduct of the Indemnified Party, the other Owners in the Property, or their agents, servants or employees. The parties' obligations with. respect to indemnification hereunder will remain effective, notwithstanding the expiration or termination of this Agreement, as to claims arising or accruing prior to the expiration or termination of this Declaration. 5.2. Liability Insurance Coverage an Limits for Owners Each Owner agrees to maintain, and /or cause to be maintained, at no cost to the other Owners, a policy of insurance with commercial general liability insurance insuring its interests against claims for personal injury, bodily injury, death and property damage occurring on, in or about such Owner's Parcel and with contractual liabi' €ty coverage that shall include coverage for Owner's indemnity provisions given in this First Amended Declaration. Such policy shall be for a "Combined Single Limit" (covering personal injury liability, bodily injury liability and property damage liability) of not less than Two Million Dollars ($2,000,000.00) for total claims for any one occurrence and shall include an additional insured endorsement to such policy covering every other Owner of Parcels comprising the Property if the insurer is authorized to issue and will issue such an endorsement. 5.3. Waiver of Certain Rights With respect to any loss or damage that may occur to the Property (or any Improvements or the respective Parcels of the Owners therein, arising from any peril customarily insured under a fire and extended coverage insurance policy, regardless of the cause or origin, excluding willful acts but including negligence of the Owners, their agents, servants or employees, the Owner suffering such loss hereby releases the other Owner from all claims with respect to such loss; and the Owners each agree that their respective insurance companies will have no right of subrogation against the other Owner on account of any such loss, and each Owner will procure from its respective insurers under all policies of fire and extended coverage insurance a waiver of all rights of subrogation against the other Owners which the insurers might otherwise have under such policies. 5.4. Policy Requirements Insurance coverage required by this Declaration may contain the following elements, so long as the required coverage is not diminished, the required limits are not reduced, and the Elements thereof are otherwise commercially reasonable: an Owner's insurance program may include blanket, layered, umbrella, conventional and /or manuscript forms of policies, as well as retention levels and loss Oaks Center: Declaration of CC &Rs & Establishment of = asements Final jd110609 Pjge,� reserves which are charged against earnings or otherwise funded, and commercially reasonable deductibles. 5.5. Performance of Indemnity Agreements All policies of liability insurance will insure the performance by the Owner insured thereunder of the indemnity agreements contained herein. Each Owner will promptly notify the other Owner of any asserted claim with respect to which such Owner is or may be indemnified against hereunder and will deliver to such other Owner copies of process and pleadings. ARTICLE VI: DAMAGE OR DESTRUCTION, CONDEMNATION 6.1. Damage or Destruction In the event any Building in the Property is damaged or destroyed by fire or other casualty or any other cause whatsoever, the Owner of the Parcel upon which such Building is located will, in its discretion, either tear down or rebuild /restore the damaged Building. However, if an Owner determines to tear down a damaged Building, that Owner will either promptly rebuild a new building on the same location or leave and maintain the Parcel of land on which the Building was located in a smooth, level condition, free and clear of all refuse and weeds and sealed against dust by paving, lawn or other cause whatsoever, the Owner of the Common Area so damaged or destroyed will forthwith proceed with due diligence to restore such Common Area to a condition to permit vehicular parking (in the manner required by this Agreement) and free and safe vehicular and pedestrian access and circulation in the Property and to and from all streets adjacent thereto. 6.2 Condemnation In the event the whole or any part of the Property is taken by right of eminent domain or any similar authority of Law, the entire award for the value of the land and Improvements so taken will belong to the Owner(s) of the property so taken or to their Occupants, as their respective interests may appear, and no other Owner of land in the Property will claim any portion of such award by virtue of any interest created by this Declaration; provided, however, any such other Owner may file a collateral claim with the condemning authority over and above the value of the land and Improvements being so taken to the extent of any damage suffered by such Owner resulting from the severance of the area so taken provided such collateral claim does not diminish the amount recoverable by the Owner of the property so taken. In the event of a partial taking, the Owner of the portion of the Property so condemned will, within a reasonable time, restore the remaining portion of the Property owned by such Owner, including Improvements in the Common Area, as nearly as possible to the condition existing just prior to such condemnation, without contribution from the Owners of the area not so taken and any condemnation accrual necessary therefor will be held in trust and applied for such purpose provided, however, if any Mortgagee (including any beneficiary under a deed of trust) of any property in the Property makes the requirement pursuant to a provision in a mortgage or other security instrument that the portion of the award representing compensation for severance damage to property not taken, be paid to the Mortgagee, then the party required to make such payment to such Mortgagee will not be obligated to apply such portion of the award to restoration, except to the extent necessary to clear and pave for parking and restore Common Area facilities. ARTICLE VII: TAXES Each Owner will pay or cause to be paid directly to the tax collector when due, the Real Property Taxes assessed against the property owned by such Owner, including the Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Pa e g 1� 16 portion of the Common Area owned by such Owner. An Owner will have the right, at its own cost and expense, and in its own name, to contest or protest or seek to have reviewed, reduced, equalized or abated any Real Property Tax or other special tax or assessment levied upon its Parcel by first paying such tax or assessment and thereafter filing a claim for refund or pursuing such other remedy as may be available under and in accordance with State Law. Regardless of provisions in Occupancy Agreements by which the Owner's obligation to pay such taxes directly to they tax collector, may be altered, each Owner of parcels comprised by the Property shall ultimately remain obligated to one another by this provision herein. ARTICLE VIII: GENERAL PROVISIONS 8.1. Notices: Any notice or demand given or served by one Owner to another Owner will not be deemed to have been duly given or served unless in writing and personally delivered or forwarded by postage prepaid certified or registered mail, return receipt requested, or by another commercially recognized means of delivery. Notices to Declarants shall be addressed as follows: To Declarants: Modena Investment, LP Sunnyvale Holding, LLC c/o of Homeland Management Group, Inc. 14550 Oak Street Saratoga CA 95070 Notices and demands will be deemed effective upon receipt. The person and place to which notices are to be given may be changed by written notice to the other Owners. 8.2. Attorney's Fees In the event legal proceedings are brought or commenced to enforce any of the terms of this Declaration against any Owner or other person with an interest in the Property, the successful party in such action will be entitled to receive and will receive from the defaulting Owner, a reaso,iable sum as. attorney's fees and costs, to be fixed by the court in the same action. 8.3. Duration: Except as is otherwise provided herein, this Declaration will remain in full force and effect for a term of sixty -five (65) years from the date hereof; provided, however, the term of this Declaration will automatically and without further notice continue in full force and effect for successive terms of five (5) years unless at least six (6) months prior to the expiration of the initial term or cf any such successive five (5) year extension, there will be recorded an instrument conforming to the provisions of Section 8.4 of this Agreement. Nothing herein is intended to make this Declaration applicable to existing leases which these covenants and restriction may conflict. r 8.4. Modification Except as otherwise provided herein, this Declaration may not be modified in any respect whatsoever or resc nded, in whole or in part, except by a writing executed by Declarants or their successors as Owners of at least fifty -one percent (51 %) of the Property, except for the provisions in Art cle 1, above, any modification(s) of which shall require the express consent of the City of Cupertino. 8.5. Not a Public Dedication Nothing herein contained will be deemed to be a gift or dedication of any portion of the Property to the general public or for any public purposes Oaks Center: Declaration of CC &Rs & Establishment of Easements Final id110G09 Page 170 whatsoever, it being the intention of the Owners that this Declaration will be strictly limited to and for the purposes herein expressed. 8.6. Severabilitv If any term or provision of this Declaration or the application of it to any person or circumstance will to any extent be invalid and unenforceable, the remainder of this Declaration or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable will not be affected thereby, and each term and provision of this Declaration will be valid and will be enforced to the extent permitted by Law. 8.7. Pronouns: When required by context, the singular will include the plural, and the neuter gender will include a person, corporation, firm, association, or other business arrangement. 8.8. Captions The captions in this Declaration are for convenience only and do not constitute a part of the provisions hereof. 8.9. Not a Partnership The provisions of this, Declaration are not intended to create, nor will they be in any way interpreted to create, a joint venture, a partnership, or any other similar relationship between and among Owners governed by this Declaration. 8.10. Governing Law This Declaration will be construed and enforced in accordance with and governed by the laws of the State of California. 8.11. No Presumption This Declaration will be interpreted and be construed only by the contents hereof and there will be no presumption or standard of construction favor of or against any Owner. 8.12. Inurement: This Declaration and the easements, covenants, benefits and obligations created hereby will inure to the benefit and be binding upon each Owner and its successors and assigns, provided, (i) if any Owner conveys all of its interest in any Parcel owned by it, such Owner will thereupon be released and discharged from any and all further obligations under this Declaration as fee owner of the property conveyed by it if the buyer assumes in writing all of such obligations, and (ii) no such sale will release such Owner from any liabilities, actual or contingent, existing as of the time of such conveyance. 8.13. Estoppel Certificate: Upon request by an Owner, the other Owner will issue to a prospective lender of such requesting Owner or to a prospective purchase of such requesting Owner's interest, an estoppel certificate stating: (a) whether the Owner knows of any default by the requesting Owner under this Declaration and of any other known defaults, specifying the natuhe thereof; and (b) whether, to Owner's knowledge, this Declaration, as of that date, continues to be in full force and effect. 8.14. Compliance by Occupants. Any Occupancy Agreement entered into after the date hereof must provide that the terms of such Occupancy Agreement will be subject in all respects to the provisions of this Declaration. Any Owner who enters into such an agreement will be responsible for assuring compliance by such Occupant with this Declaration. Notwithstanding anything to the contrary herein, an Owner hereunder may Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Pa,?e I� cause its Occupants to fulfill the obligations of an Owner hereunder provided that Owner will be responsible for assuring compliance by such Occupant with this Declaration and Owner will remain liable for any breach of obligation hereunder. 8.15. Reasonable Consent: Except as otherwise specifically provided in this Declaration, if an Owner is required to give its consent or approval to any action on the part of the other Owner, the consent or approval will not be unreasonably withheld or delayed. Except where other time periods to give or deny consent are provided in this Agreement, consent will be deemed granted at the end of the tenth (10th) business day following delivery of a request for consent, provided such request specifically refers to this Section 8.15 of this Declaration and states that consent will be deemed granted at the end of the tenth (10th) business day from delivery of the request, unless a written denial of consent stating the specific reason for denial is delivered before the end of the tenth (10th) business day after delivery of the request for consent. In the event the requested consent is unreasonably withheld, the other party will be entitled to specific performance and will have such other remedies as are reserved to it under this Declaration or at Law. 8.16. Altemative Dispute Resolution Any claim or dispute arising out of or relating to this Agreement, regardless of the nature of the claim or dispute, will be settled by the parties hereto pursuant to this Section 8.16. (a) Mediation. If any claim or dispute arising out of or relating to this Declaration is not settled by direct discussions within ten (10) days after notice of the claim or dispute, the parties agree first to try in good faith to settle the claim or dispute by non - binding mediation administered by the American Arbitration Association ( "AAA ") under its Commercial Mediation Rules. (b) Binding Arbitration. If the parties fail to settle a claim or dispute through mediation, it will be settled by binding arbitration administered by the AAA under its Commercial Arbitration Rules. Judgment on the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. (c) Provisional Relief. Nothing in this Section 8.16 will prevent either party from applying for or obtaining a provisional judicial remedy regarding any claim or dispute. Notwithstanding such application, the final resolution of the claim or dispute will be mediated or arbitrated under this Section 8.'16 and failure by either party to comply with any law will not be deemed to waive such party's rights to mediate or arbitrate under this Section 8.16. 8.17 Definitions: Unless the context clearly and reasonably indicates otherwise, the following definitions are intended to apply to this First Amended Declaration: 1. "Access Area" means the access; area or drive areas depicted on Exhibit A, including any future reconfiguration thereof, and such other driveways and areas as may be established from time to time as areas within Parcels over which reciprocal access easements between or among adjacent Par are necessary or beneficial for ingress and egress to and from such Parcels or the Improvements thereon. 2. "Building" means any structural Improvement on any Parcel which is enclosed by exterior walls, floor and roof and is designed for human occupancy and the conduct within of activities and business by the Owner or O --cupant of such Improvements. Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Pape i9 3. "City" means the City of Cupertino, California and any individual departments or agencies thereof asserting jurisdiction over the Property, 4. "Common Area" means all real property within the Property upon which there are no Buildings or outdoor areas existing or under construction which are devoted to the exclusive use of any Owner or Occupant, specifically excluding any Service Facilities. 5. "Effective Date" means the date that this Declaration is recorded in the offices of the County Recorder. 6. "Improvement(s)" means all Buildings, Service Facilities, outbuildings, parking or loading areas, parking garages (if any), roadways, walkways, curbs, gutters, storage areas, trash enclosures, security facilities, fences, walls, poles, signs, exterior lighting, exterior air conditioning equipment, hedges, berms, mass or large plantings, landscaping, trees, shrubs, sewer lines and sewer pipes, water lines and water pipes, electrical lines and electrical conduit and other utility lines, pipes, and conduits, lighting standards and fixtures, stairways, ramps and all other structures of any kind or appurtenances thereto located above or below the ground within the exterior boundaries of the Property, and any replacements, additions, repairs or alterations thereto of any kind whatsoever. 7. "Indemnified Party" means the party described in Section 5.1 of this Agreement. 8. "Indemnifying Party" means the party described in Section 5.1 of this Agreement. 9. "Law" means any statute, constitution, ordinance, resolution, regulation, rule, administrative order or requirement of any municipal, county, state, federal or other governmental agency or authority having jurisdiction over the Property in effect as of the Effective Date or which may thereafter be enacted, adopted, amended or modified. 10. "Mortgage" means any duly recorded mortgage or deed of trust encumbering a Parcel. 11. "Mortgagee" means and refers to the mortgagee or beneficiary under any Mortgage. 12. "Occupancy Agreement" means a lease, sublease, assignment agreement, ground lease or other agreement between an Owner and any Occupant that entitles an Occupant to conduct its business in or on the Property and utilize the Common Area in connection with its occupancy. 13. "Occupant" means any person, firm, corporation, association or other legal entity entitled to occupy and utilize any portion or portions of the Property for the conduct of its business pursuant to an Occupancy Agreement. 14. "Owner" means (i) Declarants and (ii) prospective transferees of parcels comprised by the Property holding fee title to any portion of the Property. 15. "Person" means any individual, partnership, firm, association, corporation, trust, governmental agency, administrative tribunal or any other form of business or legal entity. IN�I��1 - IMBII Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Pa 13 T5 -20 16. "Proportionate Share" means a fraction, (a) the numerator of which will be the square footage of the Building(s) situated upon the Owner's Parcel and (b) the denominator of which is the total square footage of the Buildings within the Property. 17. "Real Property Tax(es)" means a. - iy form of real or personal taxes, assessments, fees, charges, levies, penalties, impositions or taxes of every kind and nature whatsoever, assessed or levied or imposed by any authority having the direct or indirect power to tax, including, without limitation, any City, County, State or federal government, or any improvement or assessment district of any kind or nature whatsoever, whether or not consented to or joined in by Owner, against the Parcel or any legal or equitable interest or Owner therein or any personal property of Owner used in the operation thereof, or the ownership, leasing, operation, management or occupancy of the Parcel, whether now or hereafter imposed, and whether or not now customary or in the contemplation of the parties on the date of this Declaration excepting only inheritance or estate taxes and taxes measured by the net income of Owner. Real Property Taxes will include without limitation general and special assessments, service payments in lieu of taxes, excises, possessory interest taxes, business or license taxes or fees, gross receipts taxes, transit assessments or fees, child care subsidies fees and /or assessments, job training subsidy fees and /or assessments, open space fees and /or assessments, housing subsidies and /or housing fund fees or assessments, public art fees and /or assessments, and any other fees or assessments imposed in connection with the environmental, sociological or fiscal effects of the Parcel or the ownership, leasing, operation, management or occupancy of the Parcel, any tax, fee or excise on the use or occupancy of the Parcel or any part thereof, or in connection with the business of renting space in the Parcel, any other tax, fee or other excise, however described, that may be levied or assessed as a substitute for, or as an addition to, in whole or in part, any other Re,31 Property Taxes. 18. "Service Facilities" means any loading dock areas (including ramps related thereto), trash areas, areas for drive - through facilities, patio seating areas, sidewalks immediately adjacent to Building and other facilities which are or become used exclusively by a single Owner or Occupant. IN WITNESS WHEREOF, this Declaration has been executed as of the date first above written by Prato Retail Group, Inc. thE: duly authorized General Manager of MODENA INVESTMENT, LP and by CLDZ, Inc., the Managing Member of SUNNYVALE HOLDING, LLC and by its sole Members, SHAWN TAHERI and HABIB ZAKERANI. DECLARANTS: MODENA INVESTMENT. LP by Prato Retail Group, Inc., a Cali rnia corporation, Its Gen ral Partne By, ✓` Shawn Taheri, Pr ident SUNNYVALE HOLDING, LLC By CLDZ, Inc., a California corporation Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 Page 14 15 -21 Its Mana ng Member By Sha n aheri, President Taheri, Me Hai Zakerani, Member Oaks Center. Declaration of CC &Rs & Establishment of Easements Final jd11 D609 P a 15 - 22 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On tA0QEM W- 0 , 204 before me, q6fJP4 Lpt-I . tjoTeff fUgt -I C_ , (Here insert name and title of the officer) personally appeared S4A+J N `��-1 �� f} JD (- 6 f 6 t who proved to me on the basis of satisfactory evidence; to be the person(s) whose name(s) mare subscribed to the within instrument and acknowledged to me that ltt4she /they executed the same in -hisA= /their authorized capacity(ies), and that by hisffrer /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- IiENRY T WITNESS my hand and official seal. Commisslon# e27344 Notary Pubilc - C Santa Clara' County W C61". EMU"Dec 9, 20D9 ; Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT po (Z m oi- (4- CG � e- AND &TAt3LX6 (Title or description of attached document) or f 6NT Ar'F6 --77t J (ADD (Title or description of attached document continued) Number of Pages 2 t Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other INSTRUCTIONS FOR COMPLETING THIS FORM piny acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknant�ledgment form must be properly completed and attached to that document. The only exception is if a a r document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. Date of notarization must be. the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). Print the name(s) of document signer(s) who personally appear at the time of notarization. Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/sbe/#key is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). a Securely attach this document to the signed document 15 -23 2008 Version CAPA v12.10.07 800- 873 -4865 w ww.NotaryClasses.com EXHIBIT A (Attach Description of Property) Oaks Center. Declaration of CC &Rs & Establishment of Easements Final jd110609 Pape 16 15 -24 EXAII ;IT A PROPERTY DESCRIPTION ALL OF PARCEL I AS SHOWN ON THAT CERTAIN PARCEL MAP FILED FEBRUARY 17, 1972 IN BOOK 296 OF MAPS, AT PAGE 41, SANTA CLARA COUNTY RECORDS. EXCEPTING THEREFROM THE UNDERGROUNI) WATER RIGHTS, WITHOUT RIGHTS OF SURFACE ENTRY, AS CONVEYED TO THE CIT)' OF CUPERTINO BY DEED RECORDED MARCH 27, 1972 IN BOOK 9760, PAGE 685 OF OFFICIAL RECORDS. APN: 326-27-035 NV:1101242.2B A-] . j - EXHIBIT B (Attach Description of Parcel A } Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd110609 PT�e2t7 L V) s� m S N 1 0 30 60 110 "ti LEGEND ) FOUND J' BRASS DISK MONUMENT WITH PUNCH PARCEL 8 MARK STAMPED 'CITY OF CUPERT)NO. INSIDE MONUMENT BOX, PER P-M. 296 M 41 • FOUND 1' IRON PIPE MIX PLASRC PLUG 5.251 ACRES.+ (NET) & TACK STAMPED "CAUFORNfA DIVISION W OF HIGHWAYS RIGHT OF WAY, PER I P.M. 196 M 47 O SET J /4" IRON PIPE WITH PLAS77C PLUG, ABUTTER RIGHTS REIJSNEO pp TACK AND TAG, STAMPED "LS 6868' - �• �!'� 14 I DISTTNCTTVE BOUNDARY LINE - - - --- CENTER UNE/MONUMENT LINE PARCEL UN L ' ' NO ACCESS LINE P.M. PARCEL MAP M -M MONUMENT TO MONUMENT DISTANCE (R) RADIAL BEARING ( ) RECORD DATA PER P.M. 296 M 41 BASS OF BEARINGS THE BEARING N897 1'55 "W OF 7HE CENTER LINE OF MARY AVENUE; BETIIEEN FOUND MONUMENT, AS SAID BEARING IS SHOWN ON THAT CERTAIN PARCEL MAP, FRED FEBRUARY 11, 1972 IN BOOK 196 OF MAPS AT PAGE 41, RECORDS OF SANTA CLARA COUNTY WAS TAKEN AS THE BASIS OF BEARINGS FOR THIS MAP. NOTES 1. ALL DISTANCES AND DIMENSIONS ARE IN FEET AND DECIMALS THEREOF. 2 ALL EASEMENT LINES WITHOUT BEARINGS ARE PARALLEL AND /OR PERPENDICULAR TO THE PARCEL UNF- 3. THE OSRNC77VE BOUNDARY LINE INDICATES THE BOUNDARY OF THE LAND SUBDIVIDED BY THIS MAP AND CONTAINS AN AREA OF 8.101 ACRES (GROSS), MORE OR LESS AND 7897 ACRES (NET). MORE OR LESS PARCEL MAP CUPER TINO OAKS FOR CONDOMINIUM PURPOSES CONSISTING OF 2 SHEETS JMMMIMMMNM. HIM.. M ........... . .... M.M..M.t...�M.. BONG A SUBDfNSION OF PARCEL I, AS SHOWN ON THAT CERTAIN PARCEL MAP, FXM FEBRUARY 17, 1972 IN BOOK 296 OF MAPS AT PAGE 41, RECORDS OF SANTA CLARA COUNTY LING ENTIRELY WITHIN THE .M CITY Or CUUERTINO, SANTA CLARA COUNTY, CALIFORNIA �.� SCALE I' - 60' DATE MAY 2009 A K F amNlntl- suRVrro9s- pwnrER9 SO R[NMOIDOT DIWG .DR[ !S9 S!H ID6i. GNDI1Hl .6ft0 MARY AVENUE RAW N6OFR E3WH013ZIt' n DJ.73' M -If 169.66' M -F( (760.68) ti •�� N8911'33 "W 169.66' eJ y .7J' _ f69.68 N8911'6YW 243.11' ,py\� PARCEL A r� 2.64" ACRES.+ n W d (SCALE IN FLL'T) �I, YI `n`R- S ,�` 4 ;% ro 30' 12' �r °m I. �NTAIL A80L'E STEVENS CREEK BOULEVARD r r r *"" A-P / P •05' 0• 4� DETAIL. 1 LINE TABU LINE BEARJNC c u N777406 rzel' (7zeJ) LI N1040'00'W 0.00' LJ NSOGO'00'E f1 6 NIS �6'tJ ZI.OS' CURVE TABLE CUR RADIUS DELTA ]LENGTH yz c1 1 'ors Ix r 6 .00' Z'16'3J' f Or CJ 1A0.0 ' 0 N BKF No. 20076019 PARCEL 8 I'I 5.457 ACRES3 (GROSS) w 5.251 ACRES.+ (NET) W I III 861050 W la I 1oGSG' �` ABUTTER RIGHTS REIJSNEO pp - �• �!'� 14 I 8719 0.A. 63. 1 Lt I b1 . (SCALE IN FLL'T) �I, YI `n`R- S ,�` 4 ;% ro 30' 12' �r °m I. �NTAIL A80L'E STEVENS CREEK BOULEVARD r r r *"" A-P / P •05' 0• 4� DETAIL. 1 LINE TABU LINE BEARJNC c u N777406 rzel' (7zeJ) LI N1040'00'W 0.00' LJ NSOGO'00'E f1 6 NIS �6'tJ ZI.OS' CURVE TABLE CUR RADIUS DELTA ]LENGTH yz c1 1 'ors Ix r 6 .00' Z'16'3J' f Or CJ 1A0.0 ' 0 N BKF No. 20076019 EXHIBIT C {Attach Description of Parcel B ) Oaks Center: Declaration of CC &Rs & Establishment of Easements Final jd11 D609 P0218 m in -A n t 2 . 73 � � m 0 30 T 0 (SCALE IN FEET) BASIS OF BEARINGS THE BEARING N6971'65'W OF THE CENTER LINE OF MARY AVENUE, BETWEEN FOUND MONUMENT. AS SAID BEARING IS SHOWN ON THAT CERTAIN PARCEL MAP, FILED FEBRUARY 17, 7972 IN BOOK 296 OF MAPS AT PAGE 4% RECORDS OF SANTA CLARA COUNTY WAS TAKEN AS THE BASIS OF BEARINGS FOR THIS MAP. N07FS 1, ALL DISTANCES AND DIMENSIONS ARE IN FEET AND DECIMALS THEREOF: 2. ALL EASEMENT LINES KTTHOUT BEARINGS ARE PARALLEL AND/OR PERPENDICULAR TO THE PARCEL UNE J. THE UISIWC77VE BOUNDARY UNE INDICATES TW BOUNDARY OF THE LAND SUBDIVIDED BY THIS MAP AND CONTAINS AN AREA OF 6.101 ACRES (GROSS), MORE OR LESS AND 7.997 ACRES (NET), MORE OR LESS. PARCEL MAP CUPERTINO OAKS. FOR CONDOMINIUM PURPOSES CONSISTING OF 2 SHEETS ...•.«......•....H H. H ... HH....H.HH••n.. ........ IMI. BEING A SUBD1NS10N OF PARCEL 1, AS SHOW ON THAT CERTAIN PARCEL MAP, FRED FEBRUARY 17. 1972 IN BOOK 296 OF MAPS AT PACE 4T, RECORDS OF SANTA CLARA COUNTY L T7NG ENTIRELY WITHIN THE CITY OF WPERTINO, SANTA CLARA COUNTY, CALIFORNIA .. . H. H. H•.H.H..1.I. ...... ..HM ....... ... SCALE. 1' — 60' DATE MAY 20D9 B k cNO6tmrs.sutmws- vwwnrs I 12' � MARY AVENUE � r 9AVS OF 9EARINGS ' ) L• _ xa6TTSS•w _ sss.4r' (83.737 Ues.6e) x66Tr'ss N 1as.ea' �'', 07.73• Iw.ea' `� •ttiv $$ : / ,.bt r7I � 4 t!A! ° t`n � a � o 0 A 0 I- E L r: 1 ,^: I !fir r °Eb ti" a \' 44.63' f l �� $ �\ xa9TS'40 2.644 ACRES* + I DETAIL aIII -11 � Nd436'04 fea.70' _ _ _ LINE TAB PARCEL B 5.457 ACRES* (CROSS) 5.25" ACRES* (NET) I'� LEGEND ( 1 � .9 , / 4�� im Lt AU 7 7.8-4' (17.N) ' Nip o 9" © FOUND J' BRASS DISK MONUMENT WIN PUNCH �III� Wes' IR t2 `` JO' 4a' - MARK STAMPED 'CITY OF CUPERTINO , INSIDE bl� MONUMENT BOX PER P.M. 296 M 41 I } I C Y &l y r p f I q N89Tj Ip'N y�5� �ay�� I SEE UETAIL dl WIVE RADIUS D LT LENGTH a '44•s " r3. 1 300 '0 7 0. • FOUND 1' IRON PIPE KITH PLASTIC PLUG & TACK STAMPED 'CALIFORNIA DfWSfON OF HIGHWAYS RIGHT OF WAY, PER \ P -M. 295 Al 41 �\ 0 SET 314' IRON PIPE KITH PLASTIC PLUG, .y TACK AND TAG, STAMPED 'LS 6668' w?• �\ DISTINCTIVE BOUNDARY LINE - - --- CENTER UNEIUONUMENT LINE �\ ' PARCEL LINE NO ACCESS LINE `\ P.M. M -M PARCEL MAP MONUMENT TO MONUMENT DISTANCE \� (R) RADIAL BEARING ( ) RECORD DATA PER P.M. 296 M 41 m in -A n t 2 . 73 � � m 0 30 T 0 (SCALE IN FEET) BASIS OF BEARINGS THE BEARING N6971'65'W OF THE CENTER LINE OF MARY AVENUE, BETWEEN FOUND MONUMENT. AS SAID BEARING IS SHOWN ON THAT CERTAIN PARCEL MAP, FILED FEBRUARY 17, 7972 IN BOOK 296 OF MAPS AT PAGE 4% RECORDS OF SANTA CLARA COUNTY WAS TAKEN AS THE BASIS OF BEARINGS FOR THIS MAP. N07FS 1, ALL DISTANCES AND DIMENSIONS ARE IN FEET AND DECIMALS THEREOF: 2. ALL EASEMENT LINES KTTHOUT BEARINGS ARE PARALLEL AND/OR PERPENDICULAR TO THE PARCEL UNE J. THE UISIWC77VE BOUNDARY UNE INDICATES TW BOUNDARY OF THE LAND SUBDIVIDED BY THIS MAP AND CONTAINS AN AREA OF 6.101 ACRES (GROSS), MORE OR LESS AND 7.997 ACRES (NET), MORE OR LESS. PARCEL MAP CUPERTINO OAKS. FOR CONDOMINIUM PURPOSES CONSISTING OF 2 SHEETS ...•.«......•....H H. H ... HH....H.HH••n.. ........ IMI. BEING A SUBD1NS10N OF PARCEL 1, AS SHOW ON THAT CERTAIN PARCEL MAP, FRED FEBRUARY 17. 1972 IN BOOK 296 OF MAPS AT PACE 4T, RECORDS OF SANTA CLARA COUNTY L T7NG ENTIRELY WITHIN THE CITY OF WPERTINO, SANTA CLARA COUNTY, CALIFORNIA .. . H. H. H•.H.H..1.I. ...... ..HM ....... ... SCALE. 1' — 60' DATE MAY 20D9 B k cNO6tmrs.sutmws- vwwnrs I 12' � MARY AVENUE � r 9AVS OF 9EARINGS ' ) L• _ xa6TTSS•w _ sss.4r' (83.737 Ues.6e) x66Tr'ss N 1as.ea' �'', 07.73• Iw.ea' `� •ttiv $$ : / ,.bt r7I � 4 t!A! ° t`n � a � o 0 A 0 I- E L r: 1 ,^: I !fir r °Eb ti" a \' 44.63' f l �� $ �\ xa9TS'40 2.644 ACRES* + I DETAIL aIII -11 � Nd436'04 fea.70' _ _ _ LINE TAB PARCEL B 5.457 ACRES* (CROSS) 5.25" ACRES* (NET) I'� I ( 1 � .9 , / 4�� im Lt AU 7 7.8-4' (17.N) ' Nip o 9" III ora o'Jp �III� Wes' IR t2 `` JO' 4a' - CURVE TABLE bl� r z I } I C Y &l y r p f I q N89Tj Ip'N y�5� �ay�� I SEE UETAIL dl WIVE RADIUS D LT LENGTH a '44•s " r3. 1 300 '0 7 0. Ne91340 W 617.40' e Asow ApOYE cn SKF No. 20075079 STEVENS CREEK BOULEVARD i DEFERRED IMPROVEMENTS AGREEMENT- MINOR SUBDIVISION This Agreement, dated 94'rTM4& 1 2009 is made by and between the CITY OF CUPERTINO , a municipal corporation ( "CITY "), and MODENA INVESTMENT LP, a California Limited Partnership, by Prato Retail Group, Inc., its General Partner, and SUNNYVALE HOLDING, LLC, a California Limited Liability Company, by CDLZ, Inc., its Managing Member, Co-Owners, with principal offices at 14550 Oak Street, Saratoga 95070, California, hereinafter collectively referred to as "SUBDIVIDER ", in the light of the following Recitals all of which are deemed incorporated into the following Agreement: RECITALS WHEREAS, SUBDIVIDER is the owner of improved real property (Oaks Shopping Center - Parcel 2 as shown on Tentative Map) and of partially unimproved Parcel 1, as shown on the Tentative Map attached hereto as Exhibit A, consisting of approximately 8.1 acres of land lying in the CITY OF CUPERTINO, County of Santa Clara, State of California, known as the Cupertino Oaks Subdivision ( "the Subdivision ") , and WHEREAS a Tentative Map of the Subdivision was approved by the City Council on September 2, 2008 subject to conditions contained in the City's Resolution of Use Permit and Architectural and Site approval, and WHEREAS Sections 18.16.190A and 18.32.80 of the CITY's Municipal Code, regulating the subdivision of land within the CITY require that SUBDIVIDER execute and file an agreement between itself and CITY relating to improvements to be made in a subdivision prior to the approval by the City Council of the final map, NOW, THEREFORE, the parties agree as follows: 1. RIGHTS -OF -WAY. SUBDIVIDER offers to dedicate all lands, rights -of -way, and easements shown for dedication on the final map of the Subdivision. All such offers shall, remain open, and shall constitute irrevocable offers of dedication in accordance with Government Code section 66477.2. All such offers may be accepted by CITY in its sole discretion at any later date without further notice to SUBDIVIDER as provided by law. 2. IMPROVEMENTS /DEFERRRAL. (a) Deferred Improvements SUBDIVIDER agrees to submit for City Approval, in accordance with Municipal Code 18.16.160, Improvement Plans as required by Article VI of Chapter 18.32, Soils Report in accordance with Chapter 16.12, Improvement Bond Estimate that shall include all improvements within public rights -of -way, easements or common areas and utility trench backfill as provided by the Subdivider, except for those utility facilities installed by a utility company under the jurisdiction of the California Public Utilities Commission and Hydrology and Hydraulic Calculations for storm drains, and to enter into an Improvement Agreement in accordance with Chapter 18.32 Improvement Agreement, all such work to be done within the time provided in Section 2.(b) below; (b) Time Deferral Deferred Improvements Agreement: City of Cupertino- Cupertino Oaks Final Map jdrev #2 -90517 Page 1 15 -30 (i) SUBDIVIDER agrees to perform and to pay for performance of work to be done in accordance with Section 2.(a) above, and SUBCIVIDER further agrees to complete such work on or before forty -eight (48) months from the date of this Agreement or such longer period as may be authorized by the City Engineer. Should the work not be completed within the stated time, then the provisions of Municipal Code 18.32.080 shall govern the rights and obligations of the parties (ii) On or before issuance of construction permits, SUBDIVIDER agrees to provide such improvement security requires! by Article Vill of Chapter 18.32 as may be applicable to SUBDIVIDER's performance of work described in Section 2.(a) Any such bonds submitted as security pursuant to this section shall be executed by a surety company authorized to transact a surety business in the State of California and shell be in a farm approved by the City Attorney. 3. SUCCESSORS AND ASSIGNS -- COVENANT RUNNING WITH THE LAND. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of the respective parties. it shall be recorded in the Office of the Recorder of Santa Clara County concurrently with the final map of the Subdivision, and shall constitute a covenant running with the land and an equitable servitude upon Parcel 1 of the Subdivision shown on ExhibitA hereto. 4. ATTORNEY'S FEES. In the evens: it becomes necessary for either party to bring an action with respect to the enforcement of the provisions of this Agreement, the prevailing party in such action shall be awarded reasonable attorney's fees, as may be determined by the Court. 5. NOTICES. Any notices sent to the parties relating to this Agreement shall be sent by first class mail, postage prepaid or personally delivered to the following addresses: Public Works Director CITY OF CUPERTINO City Hall 10300 Torre Avenue Cupertino, California 95094 Subdivider MODENA INVESTMENT, LP SUNNYVALE HOLDING, LLC 14550 Oak Street Saratoga, Either party may amend its address by giving written notice to the other. IN WITNESS WHEREOF, the CITY OF CUPERTINO, a municipal corporation, has authorized the execution of this agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. adopted by the Council of the CITY OF CUPERTINO on 2009, and the SUBDIVIDER has caused this agreement to be executed. CITY OF CUPERTINO Deferred Improvements Agreement: City of Cupertino - Cupertino Oaks Final Map jdrevl -90617 Page 2 15 -31 a municipal corporation, City Manager ATTEST: City Clerk SUBDIVIDER MODENA INVESTMENT, LP By Prato Retail Group, Inc. a California Corporation, Its G eral Partner Shawn Taheri, President SUNNYVALE HOLDING, LLC By CLDZ, INC. a California Corporation, Its Ma Bing Memb r Shawn Taheri, P esi ATTACH ACKNOWLEDGMENTS Deferred Improvements Agreement: City of Cupertino - Cupertino Oaks Final Map jdrev2 -90617 Page 3 15 -32 CALIFORNIA )k.LL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of SA C�-AIOA before me, Reo �-�{ L.A't t F1a rA" r t'u GU C (Sere insert name and title of the officer) personally appeared gifANIJ TAq6-9-I who proved to me on the basis of satisfactory evidence to be the personVwhose name( Tis /atv- subscribed to the within instrument and acknowledged to me that he /s� executed the same in his+erl'th�;i:ir authorized capacity(je , and that by his/4aA4heir signature on the instrument the person(e, or the entity upon behalf of which the personX 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. HROY LM WI SS my hand and official seal. Commis�* 1627644 Notary Rib is . ccefomla Santa Clora Cotmly Signature of Notary Public (Notary Seal) �yComrtZ• Eames B, 2009 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER O Individual (s) ❑ Corporate Officer (Title) D Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. Wshelthe3-,- is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clet ev Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer. indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 15-33 2008 Version CAPA v 12.10.07 800 - 873 -4866 wwtiv.NotaryClasses.com 7 1 1` II W RICF ENC114EERS aiY�p 5 c Vi NOTES: r ' 1 YuM1Ow6 ro of GEUavEO 5 L ,r - , � IAEE l0 8E AFMOVEO S F r�S • ii • \ ... �.- - - - - I • I C14PHIC SCALE um r t 1 T yj n ,L ic' I 1 { - 5 :4 - -60 AC j x w PARCEL 2 - . 4 AREA ry S rnewwna -$:rsQAC_ �. .\ -' U I•- 1. d a' 4 1.t . . '� / •�� 1o�J � >•� _" _ ' 7 1 •`� °P �_ (TO eE DEVELOPED F% I - — "- • ',_ 1 5 • t , x - x` - _ �'� �.*+. -' i, •-. .. ••{ _ � -..L r �.-__ " � 1' - ix. � i I 7� - ' ' � � I i '! - .z J�. i �_+.�.. _ 1 :.c_ �r -- 3 = 1 , �•. -�^'�? �'.r✓_ ^ w��Dw�- - � I - .. �... ,. - ' i -^ � - _ .. � -.._�, r- ' I — . i . _ '` t I mo - - ._. .. ,_ _ .,.�.crs -= •. �: '_ — i-=� ... . .. Im STEVENS CREEK BLVD ,. ,, -,•y.1. TM -2 t 2 4 �r \1 C - WHEN RECORDED RETURN TO: The City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 -3255 (Space above line for Recorder's use only.) DECLARATION OF RE:)TRICTIVE COVENANTS This Declaration of Restrictive Covenants ( "Declaration ") is made as of , 2009 by MODENA INVESTMENT, LP, a California Limited Partnership, by its General Partner, Pratc Retail Group, Inc., a California corporation and SUNNYVALE HOLDING, LLC, a California limited liability company by its Managing Member, CLDZ, Inc., a California corporation Co- owners ( "Owners ") of Parcel B and of Parcel A that is approved for condomization into ( "Office Retail -Condo Unit 1 ") and ( "Hotel- Condo Unit 2 11 ), and the CITY OF CUPERTINO, California, a municipal corporation ( "City "). Recitals WHEREAS Owners own all of the property shown and described as Parcel A and Parcel B on Exhibit A attached hereto; WHEREAS Owners have obtained approval of a Condo Plan development on Parcel A from the City; WHEREAS Owners contemplate the recordation of a Condo Plan consisting of Condo Unit 2 (Hotel) and Condo Unit 1 (Office and Retail) and Common Area ( "Common Area "), as shown on Exhibit B. WHEREAS the Exhibits hereto are from Maps that are part of a Condo Plan not yet recorded that reflect Unit designations :shown on such Maps such as Unit 2 (Hotel) and Unit 1 (Office & Retail) and such designations are being carried through and used in this document for consistency of reference; WHEREAS as a condition of approval of the Condo Plan, the City has required that the parties record this Restrictive Covenants Declaration concurrently with the recordation of such Condo Plan at the same time, as the Condo Plan is recorded; NOW THEREFORE, the Owners covenant and agree, for the benefit of the City, to burden their heirs, executors, successors and assigns as set forth herein. 1. Common Ownership. As of the date hereof, Owners hold the beneficial ownership interest in Parcel A contemplated to be formally condomized into Condo Unit 1,( "Office & Retail Unit 1 ") and Condo Unit 2 ( "Hotel ") and Commo Area ( "Common Area ") respectively, as shown on Exhibit B hereto The direct or indirect beneficial ownership in the fee interest in Office & Retail -Condo Unit 1 and in the Hotel -Condo Ur it 2 shall, at all times herein provided, be and OakshoteRDeedrestrict -6 1 15 -35 remain the same ( "Ownership Restriction "), which shall not, however, preclude transfers of lesser real property interests to third parties, including leasehold interests and easements. Such Owners of Office & Retail -Condo Unit 1 and Hotel -Condo Unit 2 shall not transfer nor cause, allow or suffer the transfer (voluntarily, involuntarily or by operation of law) of any fee interest in such Condo Units in violation of the herein Ownership Restriction, and, at City's the election, any such attempted transfer shall be void. . 2. Lot Line Adjustment. Concurrently with the recordation of the Condo Plan, the Owners covenant to apply ( "Application ") to the City to terminate the Condo Plan and to record a lot line adjustment ( "LLA ") between Office & Retail -Condo Unit 1 and a portion of Common Area (the service drive primarily intended to benefit, Hotel -Condo Unit 2) and Parcel B (Shopping Center), all as shown on Exhibit B, by which lot line adjustment process Office & Retail -Condo Unit 1 and portion of Common Area will be added to Parcel B(Shopping Center). Hotel- Condo Unit 2 and the remainder of the Common Area will be left intact as an independent and separate subdivided parcel to continue to be referred to as Parcel A, as described on the Final Parcel Map, then freely transferable and otherwise free of any other restrictions imposed by this document. The City covenants that it shall not formally approve such Application or record any such Lot Line Adjustment resulting from such Application - therefrom unless, within 4 years of the date of recordation of this Declaration the Owner of Office & Retail -Condo Unit 1 shall have failed to obtain a building permit from the City for some or all of said Condo Unit 1 and Owner shall have commenced substantial construction which is defined as being no less than grading and pouring of the foundation. Both parties understand that the Use Permit expires on September 2, 2012 (unless extended). The City reserves the right to approve the application and record the Lot Line Adjustment on or after the later of September 3, 2012 or any City - granted extension if the Owner of Office & Retail -Condo Unit 1 fails to obtain a building permit from the City and to commence substantial construction. 2.1 Although the Ownership Restriction does not technically require concurrent ownership of Condo Unit 1 and of Parcel B, in order to accomplish the foregoing LLA in compliance with applicable law, including the Subdivision Map Act, such ownership will have to be the same at or about the time of processing of the LLA. Accordingly, City shall give Owners not less than 30 days prior written notice of the City's intent to record the LLA so as to enable the Owners of Office & Retail -Condo Unit 1 and of Parcel B to cause such ownership to be concurrently owned prior to the recordation of the LLA, provided, however, that the Owners are authorized to seek release of Parcel A from the heed of Trust on Parcels A and B and to transfer Parcel A, subject to this Declaration, to another entity controlled by the same parties that control the entities that own Parcel B. It is clearly understood and agreed that beyond the stated need to have common ownership of the Office & Retail -Condo Unit 1 and Parcel B for the purpose of the potential LLA that might occur, this Covenant, shall have no other effect or restriction on Parcel B. 3. Term. This Declaration shall terminate upon the earlier of: (a) recordation of the LLA; or (b) issuance of a Section 2 building permit by the date specified therein. 4. Covenants Running with the Land. This Declaration: (a) shall apply to and bind each and all of the Owners and the City and each and all of their respective heirs, successors and assigns; and (b) shall obligate, inure to, pass and run with each and every portion of Parcels A and B but, as to Parcel B, only to the extent provided in 2.1, and shall remain in force and effect and terminated as hereinafter provided. However, nothing in this Declaration shall preclude any Owner from granting interests in real property less than a fee interest, including OakshotelTeedrestrict -6 2 15 -36 without limitation leasehold interests and easements, and no holder of any such lesser interest (or successor or assignee thereof) shall be subject to this Declaration. 5. Mortgage Protection Provisions. The breach of any of the covenants or restrictions contained in this Declaration shall not defeat, render invalid or affect the priority of the lien of any mortgage or deed of trust made in good faith, but all of the foregoing provisions, restrictions and covenants shall be binding and effective against any Owner of any portion of the fee interest in Parcel B but only to the extent provided in 2.1, the Office & Retail —Condo Unit 1 and the Hotel -Condo Unit 2, or any part thE:reof, whose title is acquired by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale; provided any such Owner whose title is acquired by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale shall take title free of any liens created or provided for hereunder, though otherwise subject to the provisions hereof. 6. Remedies. Any party hereto may bring an action or proceedings at law or in equity, including, but not limited to, an action seeking injunctive relief, against any person violating, or attempting to violate, any of this Declaration, either to prevent or enjoin any such violation and/or to recover damages from or on account of such violation. All such remedies shall be cumulative. 7. Attorneys' Fees. In the event that suit is brought for the enforcement of this Declaration or as the result of any alleged breach, the prevailing party or parties shall be entitled to recover court costs, including reasonable attorneys' fees, by the losing party or parties and any judgment or decree rendered shall include an award of attorneys' fees. 8. California Law. - This Declaration and the application or interpretation thereof shall be governed exclusively by its terms and by the laws of the State of California. 9. Amendments. This Declaration may only be amended or terminated by all the Owners and the City, duly executed and acknowledged by each and recorded in the office of the Santa Clara County Recorder, 10. Notice. Notices that may be required or necessary under this Declaration, if any, shall be provided to the following addresses: City: 10300 Torre Avenue, Cupertino, CA 95014 -3255 Condo Unit 1 Owners: c/o Homeland Management, Inc. at 14550 Oak Street, Saratoga, CA 95070 Condo Unit 2 Owners: Same as above Parcel B Owners: Same as above Any party may change its address for notice purposes by delivery of written notice of such new address to all parties. IN WITNESS WHEREOF, the Owners have executed this Declaration as of the above date. Oa kshotekDeedrest6ct -6 15 -37 Parcel B Owners: MODENA INVESTMENT, LP By Prato Retail Group, Inc. Its General artner By: .. Shawn Taheri, Presiden SUNNYVALE HOLDING, LLC By CLDZ .Inc. Its Managin M mber By .. Shawn Taheri, President Office Retail -Condo Unit 1 Owners: Hotel - -Condo Unit 2 Owners: City: Oaks hoteADeedrestrict -6 4 MODENA INVESTMENT, LP By Prato Retail Group, Inc. Its General Partner By: r ' Shawn Taheri, Presiden - SUNNYVALE HOLDING, LLC By CLDZ . nc. Its Managing Me ber By C _ Shawn Taheri, Presiden MODENA INVESTMENT, LP By Prato Retail Group, Inc. Its General Partner BY' r �,,ZZ Shawn Taheri, President SUNNYVALE HOLDING, LLC By CLDZ . Inc. Its Managing Member By - - Shawn Taheri, Presi City of Cupertino, a California municipal corporation go Title: 15 -38 CALIFORNIA ALL -- PURPOSE CERTIFICATE OF AC-1KNOWLEDGMENT State of California County of `%rte +✓1 ��-�+ before a✓ <,>r`72-- r,o+Zn /n: Al C (Here insert name and title of the office' personally appeared ' r °` i ---- who proved to me on the basis of satisfactory evidence to be the personN whose name(&) is /ate subscribed to the within instrument and acknowledged to me that he4s� executed the same in his4w,.r;icir authorized capacity(it-s-), and that by his /lam signature(s) on the instrument the person(s), or the entity upon behalf of which the person(-.) 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. Gl WNK G.10 EX . WITNESS my hand and official seal. COMM.' #1849361 NOTARY PUBLIC • CALW0R1%A SANTA CIARA COUNTY (Notary S My Cam. Expires May 14� 20 f # Signature of Notary Public ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT �,� Cl �►�-h �n o � r'-s�rt e � (Title or description of attached document) c� v v)Coi n (Title or description of attached document continued) Number of Pages _t — j Document Date - 1 / l } U (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer . (Title) ❑ Partrter(s) ❑ Attomey -in -Fact ❑ Trustee(s) ❑ Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the ') erbiage does not require the notary to do something that is illegal for a notary in California (i.e. certrfying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. ■ The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. Wshe /Uhey, is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. ■ The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerks Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (Le. CEO, CFO, Secretary). • Securely attach this document to the signed document 15 - 39 2008 Version CAPA vl2.10.07 800 - 873 -9865 www.NotaryClasses.com [add Exhibit A and acknowledgments ] OakshoteRDeedrestrict -6 15 -40 Subordination The undersigned: (i) is the beneficiary under that certain deed of trust and financing statement recorded as instrument no. , in the Official Records of Santa Clara County, California; and (ii) hereby subordinates such lien to the above Declaration. Title: [add acknowledgments] Oaks hoteRDeedrestrict -6 6 15 -41 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On before me, (Here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. 77ze only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this farm if required. • State and County information must be the State and County where the document signers) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. He/she/ is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county cleric Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 15-42 2008 Version CAPA v12.10.07 800- 873 -9865 www.NotaryClasws.com EXHIBIT A (Legal Description) Parcel A : Parcel B : 0 a ks hotelOeed restrict -6 15 -43 1 kZ \'1' S N� 1� UNE TABLE UNEI BEARING LENGTH L1 N7334'06 "E 17.84' L2 N6353'37 ° E 42.00' L3 N00'48'05 - E 12.00' L4 N45'46'13 "E 24.05' L5 N89'11'55 "W 30.00' L6 N 00'44' 20 "E 60.00' .a PARCEL A9j zi 16270' tD� N89'38'04'W w ui w cs PARCEL B f �j�BX On 485 Z 104.78' �J ?p �7g. 1 39.83' N89'15'40'W 617.40' - - 0 3• - Nf14v3'28 YV 1-9 . � -- - 5' - - - — N89'1 88 STEVENS CREEK BOULEVARD O O pd BOUNDARY & LOCATION MAP 1 " = 200' BASIS OF BEARINGS THE BEARING N89'11'55 "W OF THE CENTER LINE OF MARY AVENUE, BETWEEN FOUND MONUMENTS, AS SAID BEARING IS SHOWN ON THAT CERTAIN PARCEL MAP, FILED IN BOOK -_ OF MAPS AT PAGES AND , RECORDS OF SANTA CLARA COUNTY, WAS TAKEN AS THE BASIS OF BEARINGS FOR THIS PLAN. BENCH MARK - S.C.V.W.D. VERTICAL CONTROL REFERENCE MARK "BM 180 ". BRASS DISC, STAMPED" BM 180 RESET 2001" ON TOP OF CURB AT SOUTHERLY SIDE OF STEVENS CREEK BOULEVARD, 20't WESTERLY OF RAILROAD TRACKS, BETWEEN IMPERIAL AVENUE AND BUBB ROAD, CITY OF CUPERTINO, CALIFORNIA. ELEVATION = 326.96 FEET, SANTA CLARA VALLEY WATER DISTRICT BENCHMARK, BASED ON NORTH AMERICAN VERTICAL DATUM OF 1988 (NAVD 88). (17.63') 0 100 200 400 (SCALE IN FEET) MAR AVEN BASIS 4F BEARINGS f ,N89M'55`W 25141-- 83.73' - N89'11'S5 "W N89'11'55" 1 000, , 42' BKF No. 20076019 -10 K : \Sur 07 \076019 \Dwg \Cando Plans \Sheet 3 . dwg CUPERT MO OAKS SHEET 3 OF 4 ............... ...... -. - .._ ._ ....._. _.._._.. EXHIBIT B Depiction of Office & Retail Condo Unit 1 and Hotel Condo Unit 2 0 aks h otelTeed restrict -6 15-45 �p 4) LINE TABLE LINE BEARING LENGTH L1 N7334'06 "E 17.84' L2 N63'53'37 "E R L3 N40'31'37 "E 12.49' L4 N73141 8 "E 29.38' L5 N16 - 44 "W 16.94' L6 N47'50'35 "W 46.65' CURVE TABLE CURVE RADIUS DELTA LENGTH Cl 25.00' 72'51'17" 31.79' C2 20.00' 107'05'50" 37.38' C3 79.00' 25'43'40" 35.47' C4 32.00' 31'24'51" 17.54' C5 34.50' 5600'15' 33.72' C6 23.00' 79'41'27" 31.99' C7 350.00' 07'25'08" 45.32' C8 20.00' 74'19'16" 25.94' - COMMON -J AREA 1 o; N� CT .P N� v~ 0 ! 8 6I 8�� Asp ' sso•� - 4 " Z -,` 20 C Ncr CA �s`363• s <s c5 C--2S, 24. UNIT 2 (HOTEL) o • .� F.F. EL = 303.00' UPPER EL. = 603.00' U cv n ;I 'sr .4 LOWER EL. = 3.00' s as 0, �W COMMON 4 N ' 0. N 0 AREA to rn 136 o z 14 0 N� 33416 z � UNIT 'I � N89'36'04 "W 162.70' 2 (OFFICE Nor 6 RETAIL) r- � F.F. EL = 301.50' ; UPPER EL 601.50' LOWER EL = 1.50' W PARCEL B OD. im - -- - - -- 0 a z ,p O� 80.46' C7� N89'17'01"W �� 0 40 BO 160 st p0 34.85' 1 037a; N84'03'28"W (SCAB' rN STEVENS CREEK BOULEVARD UNIT LOCATION PLAN 1 = 80' BKF No. 20076019 -10 K: \Sur07 \076019 \Dwg \Condo Plans \Sheet 4.dwg CUPERTINO OAKS SHEET .. 4 O . __ . 4 4 ......_.... _._ ....... ._ ...................... .. _ .............. ........ _ ......... - Attachment B RESOLUTION NO. 10- b9q A RESOLUTION FOR THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING A PARCEL MAP, MODENA INVESTMENT, L.P., A CALIFORNIA LIMITED PARTNERSHIP, AND SUNNYVALE HOLDING, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, TENTANTS -IN- COMMON, 21255 STEVENS CREEK BOULEVARD, APN 326 -27 -035 WHEREAS, there has been presented to the City Council for approval and for authorization to record parcel map located at 21255 Stevens Creek Boulevard, NOW, THEREFORE, BE IT RESOLVED THAT a. Said parcel map is hereby approved. b. The City Engineer and the City Clerk are hereby authorized to sign said parcel map. PASSED AND ADOPTED at the regular meeting of the City Council of the city of Cupertino this 4 th day of May, 2010, by the following vote: Vote Members of the Q? Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk APPROVED: Mayor, City of Cupertino 15 -47 ATTACHMENT C z I$ Sul N *i UNE TABLE UNEI BEARING LENGTH L1 I N73Z4'06 "E 17.84' L2 N63'63'37 0 E 42.00' L3 x(04 48'05 "E 1200' L4 N4546'1 3"E 24.06' L5 N891 1'55 "W 30.00' LG I N00 "44'20 ° E 60.00' (17.83) 0 100 200 4DO (SCALE IN FEET) MAR AVEN ,. BASIS OF SEA(fINCS ° o N . w. �� a �s.�s'� -� �—' �' "• ,� s3 73 Vii. 0 ? a � 83.7x .� r PARCEL w N88'(155 N Nllv 1Y di PARCEL. B k & 3 g �y �� N N15 40'N' 81740' m g � ...._ .__ NS41 86 4Z Y — STE VENS CREEK BOULEVARD BOUNDARY & LOCATION MAC? 1,p ; 200' BASIS OF BEARINGS THE BEARING N89`11'55 "W OF THE CENTER LINE OF MARY AVENUE, BETWEEN FOUND MONUMENTS, AS SAID BEARING IS SHOWN ON THAT CERTAIN PARCEL MAP, FILED IN BOOK -. OF MANS AT PAGES - AND __W_, RECORDS OF SANTA CLARA COUNTY, WAS TAKEN AS THE BASIS OF BEARINGS FOR THIS PLAN. BENCH MARK - - S.C.V.W.D. VERTICAL CONTROL REFERENCE VARK 1 13M 180 ". BRASS DISC, STAMPED" BM 180 RESET 2001" ON TOP OF CURB AT SOUTHERLY SIDE OF STEVENS CREEK BOULEVARD, 20't WESTERLY OF RAILROAD TRACKS, BETWEEN IMPERIAL AVENUE AND BUBB ROAD, CITY OF CUPERTINO, CALIFORNIA. ELEVA - nON = 326.95 FEET, SANTA CLARA VALLEY WATER DISTRICT BENCHMARK, BASED ON NORTH AMERICAN VERTICAL DATUM OF 1988 (NAVD 88), BKF No. 20076019 -10 K: \Sur07\075019 \Dw9 \Condo Plans \Sheet 3.dwg CUPERTINO OAKS SHEET 3 OF 4 19 - AQ ATTACHMENT D CQMMC AREA . x � a; r� a rn LINE TABLE UNE BEARING LENGTH Lf N73*3 6 °E 17.84' L2 N63"53'37 "E R L3 N40'31'3 E 12.49` L4 N7334413 "E 29.38' L5 I N16'25'44 "W 16.94' L a N47 �a'35 "w 46.85' S80 42' "� CURVE TABLE CURVE RADIUS DELTA LENGTH C1 25.00' 7 2'51'17 ° 31.79' C2 20.00' 107 37.38` C3 79.00' 25'4-3'400 � C4 32.00` 31'24'51" C5 3 _50' 56 n0'15" n CB 23.00' 79 41 `27" C7 350.40' 47'25'08" C8 20.00' 74'19`1 e; 25.94' UNIT 2 (HOTEL) F.F. FL = 303_00' !UPPER EL. = 603.00' ;v � j LOWER EL. = 3.00' t� C O MMON s� a. ,"�'� - o AREA .cY UNIT I (OFFICE t N8936'OeW 162.70' N� S RETAIL.) F.F. EL = 301.50' g UPPER EL = $41.50' ,r LOWER EL = 1.50' . P A13CE;L 8 cl r 0 ,A PF 80.46' N8917'01"W ��A 0 40 8A 160 2 s 000 34 1 - -jY -9- t4841OX28 -W (SCAIX IN FEET) STEVENS CREEK BOULEVARD UNIT LOCATION PLAN SKF No. 2007641 --10 1 = 80" K ; \Sut07 \0760 19 \Dwg \Condo FIstns \Sheet 4.dwg CUPERTINO OAKS SHEET ATTACHMENT E September 2, 2008 Cupertino City Council Page 5 issue the General Plan allowed for 45' height and the Heart of the City allowed for 36'. When two city documents conflicted the General Plan took precedence. Regarding the land use issue, there were restrictions on the mixed use building and any changes would have to come back to Council for approval as parking would be affected. Staff stated that they would research the parcel map data for accuracy but as this did not affect the floor area ratio the proposed project before Council was not impacted. The hotel and mixed use building were separate from the subdivision. The subdivision process was chosen rather than a development agreement as the less complicated method of achieving the desired result. Council addressed the issues pertaining to this project and reached general consensus on many of the items. Councilmember Santoro stated that while he liked this project he felt it was just too large. If the elements of the project were changed for example to include no mixed use building with a larger hotel or relocation of the hotel he believed it would be a better project, but as proposed it was too much development. Councilmember Wong stated that his major concern was the intensity of the project. While he believed the hotel was an asset:, he thought it should be relocated. He also suggested the mixed use building be smaller with more landscaping and parking. Mahoney moved and Wong seconded to adopt a negative declaration. The motion carried unanimously. Mahoney moved and Wong seconded to approve the Heart of the City exception, File No. EXC 2008 -07 to reduce one side yard setback to 15 feet for the proposed 4 -story, 122 - room hotel and a 3- story, 51,000 square foot mixed use retail/office /conference center building at an existing shopping center. The motion carried unanimously. Mahoney moved and Sandoval seconded to approve a use permit and architectural and site approval to demolish a theater and :2,430 square feet of commercial space, and construct a 4 -story, 122 -room hotel and a 3 -story 51,000 square foot mixed -use retail /office /conference center building over an underground parking podium and site improvements in two development phases at an existing shopping center with the following amendments: e Require a CC&R that restricts ownership of parcel #1 and condo lots for 4 years unless building permits are obtained and substantial construction is commenced. Otherwise, ownership of mixed -use area reverts back to shopping center owner. Both condo lots 1 and 2 must be under the same ownership subject to city attorney review e he term of expiration of the use permit and architectural and site approval is extended from two years to four years ® Require further architectural detailing of the west elevation, that is, balcony grills on the 3 rd and 4th floor of the hotel ® Require Heart of the City landscape improvements, modified where necessary, from the westerly Stevens Creek Boulevard driveway to Mary Avenue 15 -51