CC Ordinance No. 16-2148 Approving a Development Agreement for the Marina Plaza Project at 10122 Bandley Drive and 10145 North De Anza BoulevardDA-2016-01
ORDINANCE NO. 16-2148
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING A DEVELOPMENT AGREEMENT BY AND AMONG THE
CITY OF CUPERTINO, CUPERTINO 10145, LLC, AND MARINA PLAZA
LLC, FOR THE MARINA PLAZA PROJECT AT 10122 BANDLEY DRIVE
AND 10145 NORTH DE ANZA BOULEVARD
WHEREAS, Marina Plaza, LLC, a California limited liability company, ("Marina Plaza")
has a legal and equitable interest in certain real property commonly known as 10122 Bandley
Drive (APN 326-32-066) located within the City of Cupertino ("Residential Parcel") as more
particularly described and depicted in Exhibits A-1 and B of the Development Agreement
attached hereto as Exhibit 1 ("Development Agreement"); and
WHEREAS, Cupertino 10145, LLC, a California limited liability company ("Cupertino
10145") has a legal and equitable interest in certain real property commonly known as 10145
North De Anza Boulevard (APN 326-34-043) located in the City of Cupertino ("Hotel Parcel") as
more particularly described and depicted in Exhibits A-2 and B of the Development Agreement;
and
WHERAS, the Residential Parcel and the Hotel Parcel (collectively the "Property") are
currently developed with two commercial buildings jointly operated by Cupertino 10145 and
Marina Plaza (collectively "Developer"); and
WHERAS, on or about September 3, 2015, De Anza Ventures, LLC, a two member
California limited liability company whose members consiste of Cupertino 10145 and Marina
Plaza ("De Anza Ventures"), applied, with the consent of Developer and on Developer's behalf,
for various approvals including a Development Permit (DP-2015-05), an Architectural and Site
Approval (ASA-2015-22), a Use Permit (U-2015-06), a Heart of the City Exception (EXC-2016-
03), a Fence Exception (EXC-2016-05), a Tree Removal Permit (TR-2016-14), and a Development
Agreement (DA-2016-01) to redevelop the Property by constructing a 122-room full service
neighborhood business hotel on the Hotel Parcel, and two mixed-use buildings with
approximately 22,600 square feet of commercial space and 188 apartments on the Residential
Parcel, with associated on-site and off-site improvments (collectively the "Project"); and
WHEREAS, Government Code Sections 65864 through 68569.5 provide the statutory
authority for development agreements between municipalities and parties with a fee or
equitable interest in real property; and
WHEREAS, Cupertino Municipal Code ("CMC") Section 19.144.010 et seq., establishes
additional procedures for review and approval of proposed development agreements by the
City of Cupertino ("City"); and
OAK #4 844-1545-4 774 v3
Ordinance No . 16-2148
Page 2
WHERAS, the City and Developer have negotiated a Development Agreement for the
Project, to which De Anza Ventures has consented; and
WHEREAS, approval of the Development Agreement will provide Developer with
assurances that its development of the Property in connection with the Project can proceed
without disruption caused by a change in City planning and development policies and
requirements, which assurance will thereby reduce the actual or perceived risk of planning,
financing and proceeding with construction and use of the development and promote the
achievement of the private and public objectives of the development; and
WHEREAS, the terms of the Development Agreement include the following community
benefits funded by Developer:
1. Annual monetary contributions to Fremont Union High School District and Cupertino
Union School Distrct totaling approximately $64,000 per year
2. Use of five hotel rooms per year and the residential community room by the Fremont
Union High School District and Cupertino Union School Distrct at no cost
3. A one time payment of $50,000 to establish a Transportation Management Assocation
4. Annual contributions of $20,000 to the Transportation Management Assocaition for
operations
5. Public Improvements, including traffic signal modifications, bicycle and pedestrian
lanes, and a bus stop, at an estimated cost of $225,000
6. Sales Tax Point of Sale Designation
7. Use of hotel conference rooms by the City for up to twelve days per year at no cost to the
City.
8. Construction of sixteen units of affordable housing to be occupied exclusively by, and
rented to, households of very low income for not less than fifty-five years
WHERAS, the Development Agreement includes terms regarding an affordable housing
agreement and declaration of restrictive coveneants, existing impact fees, transportation
management program and annual review forms; and
WHEREAS, the Project is the subject of a Mitigated Negative Declaration ("MND")
prepared pursuant to the California Environmental Quality Act ("CEQA") (Public Resources
Code section 21000 et seq.); and
WHEREAS, the Planning Commission on July 26, 2016 recommended to the City
Council adoption of the MND, and approval of the Development Permit, Architetural and Site
Approval Permit, Use Permit, Heart of the City Exception, Fence Exception, Tree Removal
Permit, and Developemnt Agreement by adoption of Resolution Nos. 6809, 6810, 6811, 6812,
6813, 6814; and
NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:
Ordinance No. 16-2148
Page 3
That after careful consideration of the facts, exhibits, testimony and other evidence submitted in
this matter, the City Council, based upon the recitals described above, the public hearing record
and the Minutes of Planning Commission Meeting of July 26, 2016, and subject to the conditions
specified below, ordains as follows:
Section 1. The recitals set forth above are true and correct, and are hereby
incorporated herein by this reference as if fully set forth in their entirety.
Section 2. The City Council, having considered the evidence received at the public
hearing duly noticed and held for said proposed Development Agreement, finds that the
community benefits outlined in the recitals are consistent with the General Plan because these
benefits contribute to the quality of life and general livability for those who live and/or work in
Cupertino. The proposed contributions can be set aside for the future provision of community
amenities including transportation improvements, schools, and affordable housing. As
Cupertino's resident and worker populations increase, additional amenities will be necessary to
maintain and improve the livability of the community. The community benefit program is one
of the key tools the City will use to help finance and achieve those amenities that maintain and
increase quality of life. In addition to the community benefits through the Development
Agreement, the proposed application does not request any General Plan amendments and is
consistent with the General Plan and Housing Element development standards. Therefore, the
City Council further finds that:
A. The proposed Development Agreement is consistent with the objectives,
policies, general land uses and programs specified in the General Plan.
B. The proposed Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use district in which the Project is
located.
C. The proposed Development Agreement is in conformity with and will
promote public convenience, general welfare, and good land use practice.
D. The proposed Development Agreement will not be detrimental to the
health, safety, or general welfare.
E. The proposed Development Agreement will not adversely affect the
orderly development of property or the preservation of property values.
F. The proposed Development Agreement will promote and encourage the
development of the Project by providing a greater degree of requisite certainty.
Section 3. The City Council hereby approves the Development Agreement. This
approval is based on the City Council's consideration of and reliance on the MND and in
accordance with the plans, details and descriptions contained therein, and in the Resolution
adopting the MND. The City Manager is hereby authorized to execute, acknowledge, and
record the Development Agreement, subject to such minor or technical revisions as may be
approved by the City Manager and City Attorney.
Ordinance No . 16-2148
Page4
Section 4. This Ordinance shall be effective thirty (30) days following its adoption.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 6th day of
September 2016, and ENACTED at regular meeting of the City CowKil of the City of Cupertino
the 20th day of September 2016, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Members of the City Council
Chang, Vaidhyanathan, Paul, Sinks, Wong
None
None
None
APPROVED :
~91,.·~if
Grace Schmidt, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy of Ordinance No. 16-2148, which was
enacted on September 20, 2016, and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 21st day of September, 2016.
GRACE SCHMIDT, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California
RECORDING REQUESTED BY 23497715
AND WHEN RECORDED RETURN TO: Regina Alcomendras
City of Cupertino
10300 TolTe Avenue
Cupertino, CA 95014-3202
Attention: City Manager
Record for the Benefit of
The City of Cupertino
Pursuant to Government Code
Section 27383
Santa Clara County -Clerk-Recorder
11/14/2016 02:58 PM
Pages: 88
Space Above Reserved for Recorder's Use Only
DEVELOPMENT AGREEMENT FOR THE MARINA PLAZA
BY AND AMONG
CITY OF CUPERTINO
AND
MARINA PLAZA, LLC
a California Limited Liability Company
AND
CUPERTINO 10145, LLC
a California Limited Liability Company
Effective Date: October 20, 2016
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ....................................................................................................... 4
1.1 D efinitions .............................................................................................................. 4
ARTICLE 2 EFFECTIVE DATE AND TERM ......................................................................... 9
2.1 Effective D ate ........................................................................................................ 9
2.2 Tenn of Agree1nent ................................................................................................ 9
2.3 City R epresentations and WaITanties ..................................................................... 9
2.4 Develop er R epresentations and WaITanties ........................................................... 9
ARTICLE 3 DEVELOPMENT OF THE PROPERTY. ........................................................... 10
3 .1 Vested Rights ....................................................................................................... 10
3.2 Life of Approvals ................................................................................................. 10
3 .3 Pennitted Uses ..................................................................................................... 10
3 .4 Applicable Law .................................................................................................... 11
3.5 Timing of Development .................. .-..................... : .............................................. 12
3.6 · Compliance with Laws ........................................................................................ 12
3.7 No Conflicting Enactments .................................................................................. 12
3.8 Changes in the Law .............................................................................................. 12
3.9 Initiatives and Referenda ..................................................................................... 13
3 .10 Regulation by Other Public Agencies .................................................................. 13
3 .11 No Reservation of Sanitary Sewer or Potable Water Capacity ............................ 13
3 .12 Affordab l e Housing ............................................................................................. 14
3.13 Universal Accessibility; Senior Housing ............................................................. 14
A RTICLE 4 FEES .................................................................................................................... 14
4.1 IinpactFees .......................................................................................................... 14
4.2 Processing Fees .................................................................................................... 16
4.3 Other Agency Fees ............................................................................................... 16
4.4 Taxes and Assess1nents ........................................................................................ 16
4.5 Connection Fees ................................................................................................... 16
4 .6 Right to Chall enge Fees ....................................................................................... 16
AR TIC LE 5 PUBLIC BENEFITS ............................................................................................ 17
5.1 Public Benefits Obligations ................................................................................. 17
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TABLE OF CONTENTS
( continued)
Page
5 .2 City of Cupe1iino Business License ..................................................................... 18
5 .3 Sales Tax Point of Sale Designation .................................................................... 18
5.4 Use of Hotel Conference Rooms ......................................................................... 19
ARTICLE 6 ANNUAL REVIEW ............................................................................................ 19
6 .1 Alu1ual Review ..................................................................................................... 19
ARTICLE 7 COOPERATION AND IMPLEMENTATION ................................................... 20
7.1 Subsequent Approvals ......................................................................................... 20
7.2 Scope of Review of Subsequent Approvals ......................................................... 21
7.3 Processing Applications for Subsequent Approvals ............................................ 21
7.4 Other Agency Subsequent Appro v als; Autho1ity of City .................................... 21
ARTICLE 8 AMENDMENT OF AGREEMENT AND PROJECT APPROVALS ................ 22
8 .1 A111endment by Written Cons ent ......................................................................... 22
8.2 Project Approval Alnendments ............................................................................ 22
8.3 Amendment of this Agreement ............................................................................ 22
8.4 A111endments to Development Agreement Statute ............................................... 23
8 .5 Requirement for W1iting ...................................................................................... 23
8.6 · R eliance on Project MND .................................................................................... 23
8 .7 Subsequent CEQA Review .................................................................................. 23
ARTICLE 9 INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT
OF LEGAL CHALLENGE ................................................................................. 24
9 .1 Insurance Requirements ....................................................................................... 24
9.2 Indemnity and Hold Hannless ............................................................................. 24
9.3 Defense and Cooperation in the Ev ent of a Litigation Challenge ....................... 24
ARTICLE 10 ASSIGNMENT, TRANSFER AND NOTICE .................................................... 25
10.1 Assigiunent .......................................................................................................... 25
10.2 Release of Transferring Developer ...................................................................... 26
10.3 Assigii.ment to Financial Institutions or Mortgagee ............................................. 26
10.4 Successi v e Assigiunent ........................................................................................ 26
ARTICLE 11 MORTGAGEE PROTECTION .......................................................................... 26
11.1 Mo1i gagee Protection ........................................................................................... 2 6
-11-
TABLE OF CONTENTS
( continued)
Page
11.2 Mortgagee Not Obligated .................................................................................... 27
11.3 Notice of Default to Mortgagee ........................................................................... 27
11.4 No Supersedure .................................................................................................... 27
11.5 Mortgagee Requested Amendments .................................................................... 27
ARTICLE 12 DEFAULT; REMEDIES; TERMINATION ....................................................... 28
12.1 Breach and Default .............................................................................................. 28
12.2 Withho lding of Pennits ........................................................................................ 28
12.3 Ten11ination .......................................................................................................... 28
12.4 Specific Perfonnance for Violation of a Condition ............................................. 28
12.5 Legal Actions ....................................................................................................... 29
12.6 Rights and Remedies Are Cumulative ................................................................. 29
12.7 No D a1nages .............................................................................................. _ ........... 29
12 .8 Resolution of Disputes ......................................................................................... 29
12 .9 Surviving Provisions ............................................................................................ 30
ARTICLE 13 GENERAL PROVISIONS .................................................................................. 30
13 .1 Conde1nnation ...................................................................................................... 3 0
13.2 Covenants Binding on Successors and Assigns and Run with Land ................... 30
13.3 Notice ................................................................................................................... 30
13 .4 Pennitted Delays .................................................................................................. 31
13.5 Counterparts ......................................................................................................... 32
13.6 Waivers ................................................................................................................ 32
13.7 Construction of Agreement .................................................................................. 32
13.8 Headings .............................................................................................................. 32
13.9 Severability .......................................................................................................... 32
13.10 Time is of the Essence ......................................................................................... 32
13.11 Extension of Time Limits .................................................................................... 32
13.12 Other Necessary Acts ........................................................................................... 32
13 .13 Signatures ............................................................................................................. 33
13.14 Entire Agree111ent ................................................................................................. 33
13 .15 Estoppel Ce1iificate .............................................................................................. 33
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TABLE OF CONTENTS
( continued)
Page
13.16 Recordation ofTennination ................................................................................. 33
13.17 City Approvals and Actions ................................................................................. 34
13.18 Negation of Partnership ....................................................................................... 34
13.19 No Third Party Beneficiaries ............................................................................... 34
13.20 Governing State Law ........................................................................................... 34
13 .21 Joint and Several Liability ................................................................................... 34
13.22 Exhibits ................................................................................................................ 34
-lV-
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement"), dated as of October 20, 2016 ("Effective
Date"), is entered into pursuant to the Development Agreement Law, by and among the CITY
OF CUPERTINO, a California municipal c011Joration ("City"), on the one hand and MARINA
PLAZA, LLC, a California limited liability company ("Residential Developer"), and
CUPERTINO 10145, LLC, a California limited liability company ("Hotel Developer",
collectively with Hotel Developer, the "Developer") on the other. Developer and City are
referred to individually in this Agreement as a "Party" and collectively as the "Parties ."
RECITALS --------
This Agreement is entered into on the basis of the following facts, understandings and
intentions of the Parties . The following recitals are a substantive part of this Agreement;
capitalized tenns used herein and not otherwise defined are defined in Article 1 of this
Agreement.
A. In order to strengthen the public planning process , encourage private participation
in comprehensive planning, and reduce the economic costs and 1isks of development, the
Legislature of the State of California enacted section 65864 e t seq. of the Go v ernment Code
("Development Agreement Statute") which authorizes a city and a developer having a legal or
equitable interest in real property to enter into a binding, long-tenn development agreement
establishing certain development rights in the property.
B. In accordance with the Development Agreement Statute, the City Council of the
City of Cupertino enacted Municipal Code section 19.144.010 et s eq. ("Development
Agreement Regulations"), which autho1ize the execution of development agreements and set
f01ih the required contents and fonn of those agreements. The provisions of the Development
Agreement Statute and the City's Development Agreement Regulations are collectively referred
to herein as the "Development Agreement Law."
C. Hotel D eveloper is the owner of that certain real property conunonly known as
10145 North De Anza Boulevard (APN 326 -34-043) in Cupertino, California more paiiicularly
described and depicted Exhibits A -1 and B attached hereto and incorporated herein ("Hotel
Parcel") and Residential Developer is the owner of that certain real prope1iy commonly known
as 10118-10122 Bandley Driv e (APN 326-34-066) in Cupe1iino, California more paiiicularly
described and depicted in Exhibits A-2 and B attached hereto and incorporated herein
("Residential Parcel"). The Hotel Parcel and the Residential Parcel are referred to collectively
as the "Property." The Prope1iy is cmTently developed with two commercial buildings ,
including a single story shopping center with a grocery store and restaurant, totaling
approximately 48,724 square feet.
D. De Anza Venture, LLC, a two member California limited liability company
whose members are Hotel Dev eloper and Residential Developer ("De Anza Venture"), has
submitted applications , on behalf of Dev eloper, to the City for a Development Pennit (DP -2015-
05) (the "Development Permit"), an Architectural and Site Approval Pennit (ASA-2015-22)
(the "Architectural and Site Approval Permit"), a Use Pern1it (U-2015-06) (the "Use
Permit"), a Tree Removal Pennit (TR-2015-14) (the "Tree Removal Permit"), an exception to
the Heart of the City Specific Plan for a setback (EXC-2016-03) (the "Heart of the City
Exception"), a Fence Exception (EXC-2016-05) ("Fence Exception"), and this Agreement
(DA-2016-01), plus further applications for approvals necessary or convenient to develop the
Property. These applications are in furtherance of the request by De Anza Venture to redevelop
the existing c01mnercial buildings on the Prope1iy with a 122-room full service neighborhood
business hotel on the Hotel Parcel, and two mixed-use buildings with 188 apaiiments units, and
approximately 22 ,600 square feet of commercial space on the Residential Parcel and associated
facilities and infrastructure ( collectively the "Project"). Developer anticipates that prior to
development of the Property, Hotel Developer and Residential Developer will transfer their
respective interests in the Property, and concurrently assign their respective rights and
obligations under this Agreement, to De Anza Venture, which will then develop the Project on
the Property. Developer also intends to file for a lot line adjustment adjusting the boundary
between the Residential Parcel and the Hotel Parcel prior to begi1ming construction.
E. The Project is the subject of a Mitigated Negative Declaration ("MND") prepared
pursuant to the California Enviromnental Quality Act ("CEQA") (Public Resources Code
section 21000 et seq.). The MND is tiered from the General Plan EIR in accordance with
Sections 15152 and 15168 of the CEQA Guidelines and CEQA Section 21094.
F. The Plaiming Co1m11ission on July 26, 2016 recommended to the City Council
certification of the MND , and approval of the Development Pennit, the Architectural and Site
Approval Pennit, the Use Pennit, the Tree Removal Pennit, the Heaii of the City Exception, and
the Fence Exception by adoption of the following resolutions:
6808;
1.
2.
.,
.) .
4 .
5.
6.
7 .
Ce1iification of the MND by Resolution No . 6809;
Approval of the Development Pennit by Resolution No. 6809;
Approval of the Architectural and Site Approval Pen11it by Resolution No .
Approval of the Use Pennit by Resolution No . 6810;
Approval of the Tree Removal Pennit by Resolution 6811 ;
Approval of the Heaii of the City Exception by Resolution No. 6812;
Approval of the Fence Exception by Resolution No . 6813 .
G. P1ior to or concurrently with approval of this Agreement, the City has taken or
will take actions to review and plan for the future development and use of the Project ("Existing
Approvals"). Developer has consented to the applications for the Existing Approvals. The
Existing Approvals include:
1. Ce1iification of the MND by Resolution No. 16-091, adopted by the City
Council on September 6 , 2 016 ;
2
2. Approval of the Development Permit by Resolution No. 16-091, adopted
by the City Council on September 6, 2016;
3 . Approval of the Architectural and Site Approval Pennit by Resolution No .
16-092, adopted by the City Council on September 6, 2016;
4. Approval of the Use Pennit by Resolution No. 16-093, adopted by the
City Council on September 6, 2016;
5. Approval of the Tree Removal Pennit by Resolution No . 16-096, adopted
by the City Council on September 6, 2016;
6. Approval of the Heaii of the City Exception by Resolution No. 16-094,
adopted by the City Council on September 6, 2016;
7 . Approval of the Fence Exception by Resolution No . 16-095, adopted by
the City Council on September 6 , 2016 .
H . It is the intent of City and Developer to establish certain conditions and
requirements related to review and development of the Project, which are or will be the subject
of subsequent development applications and land use entitlements and this Agreement.
I. City specifically finds, as required by Municipal Code section 19 .144 .110, that
the Agreement will promote orderly growth and quality development in accordance with the
goals and policies set fo1ih in the General Plan; is compatibl e with the uses authorized in, and the
regulations prescribed for , the district in which the Prope1iy is located ; will promote the public
convenience, general welfare, and good land use practice; will not be detrimental to the health,
safety and general welfai·e; will not adversely affect the orderly development of property or the
preservation of prope1iy value; and will promote and encourage the development of the Project
by providing a greater degree of requisite ce1iainty.
J. City and Developer have reached mutual agreement and desire to voluntaiily
enter into this Agreement to facilitate development of the Project subject to the conditions and
requirements set fo1ih herein.
K. City has given the required notice of its intention to adopt this Agreement and has
conducted public heatings thereon pursuant to Govenunent Code section 65867 and Municipal
Code section 19.144.090. The City has reviewed and evaluated this Agreement in accordance
with the Development Agreement Law and found that the provisions of this Agreement and its
purposes are consistent with the Development Agreement Law and the goals, policies, standards
and land use designations specified in the General Plan.
L. On September 6, 2016, the City Council introduced Ordinance No. 16-2148 ,
approving this Agreement and authmizing its execution , and adopted that Ordinance on
September 20, 2016 (the "Enacting Ordinance"). The Enacting Ordinance became effective on
October 20, 2016.
3
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein and other valuable consideration, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
"Administrative Agreement Amendment" is defined in Section 8 .3.1.
"Administrative Project Amendment " is defined in Section 8.2.1.
"Affiliated Party" is defined in Section 10.1.
"Affordable Housing Agreement" is defined in Section 3 .12 .
"Affordable Units" is defined in Section 3.12.
"A greement " shall mean this development agreement between City and
Developer, including all exhibits hereto.
"Agreement to be Recorded " is defined in Section 5.4 .
"A pplicable City Regulations " means ( a) all City ordinances, rules, regulations ,
official policies , standards and specifications set forth in this Agreement and the Existing
Approvals, including the specific conditions of approval adopted with respect to the Existing
Approvals; (b) with respect to matters not addressed by this Agreement or the Existing
Approvals but governing pennitted uses of the Property; building locations, sizes , densities,
intensities, design and heights; site design, setbacks, lot coverage and open space; parking; and
Exactions, those ordinances , rules, regulations, official policies, standards and specifications in
force and effect on the Effective Date; and (c) with respect to all other matters , including
building, plumbing, mechanical and electrical codes, the ordinances , rules , regulations, official
policies, standards and specifications in force and effect as may be enacted, adopted and
amended from time to time, including New City Laws , except those in conflict with this
Agreement or the Existing Approvals .
"A pplicable Law " means the Applicable City Regulations and all State and
Federal laws and regulations applicable to the Property and the Project as enacted, adopted and
amended from time to time. City laws, rules , regulations and policies applicable to the Prope1iy
and/or the Project are further described in Section 3.3.
"Architectural and Site Approval Permit " is defined in Recital D .
"Assignee " is defined in Section 10.1.
"Ass ignment " is defined in Section 10.1.2 .
4
"CEQA "means the California Enviromnental Quality Act (California Public
R esources Code section 2 1000, et s eq .) as amended from time to time.
"CEQA Guidelines" means the State CEQA Guidelines (California Code of
Regulations , Title 14 , section 15000 , et s eq.), as amended from time to time.
"Certificate " is defined in Section 6.1.4 .
"Changes in the Law " is defined in Section 3 .8 .
"City " means the City of Cupertino .
"City Council" means to the City Council of the City of Cupertino .
"City Manager" means the City's City Manager or his or her designee.
"City Parties " means and includes City and its elected and appointed officials ,
officers , employees , contractors and representatives.
"Citywide Transportation Impact Fee" is defined in Section 4.1 .4.
"Claims" means liabilities , obligations, orders , claims , damages , fines , penalties
and expenses , including attorneys' fees and costs .
"Connection Fees" means those fees charged by City on a citywide basis or by a
utility provider to utility users as a cost for c01mecting water, sanitary sewer, and other
applicable utilities , except for any such fee or portion thereof that constitutes an Impact Fee, as
defined below.
"Con s truction Tax" is defined in Section 4.4 .
"Consumer Price Index " shall mean the United States Department of Labor's
Bureau of Labor Statistics Consumer Price Index, All Urban Consumer, All Items , San
Francisco-Oakland-San Jose, California, or the successor of such index.
"CUSD " is defined in Section 5 .1.1.
"De Anza Venture " is defined in Recital D.
"Default " is defined in Section 12.1.
"Developer " means, collectively, Hotel Dev eloper, and Residential Developer.
"Development Agreement Law " is defined in Recital B .
"Development Agreement Regulations " is defined in Recit al B.
"D evelopm ent A greement Statute " is defined in Recital A .
5
"Developme11t Permit" is defined in Recital D.
"Developme11t Project " means a development project as defined by section
65928 of the California Government Code. Notwithstanding section 65928 of the California
Govenunent Code, Development Project shall also include all ministerial approvals required to
carry out, construct, reconstruct , and occupy such a development project.
"Effective Date " means the date that this Agreement becomes effective as
detennined under Section 2.1 .
"E11acti11g Ordi11a11ce " refers to the Ordinance identified in Recit al L.
"Exactions" means exactions that may be imposed by the City as a condition of
developing the Project, including requirements for acquisition, dedication or reservation ofland;
and obligations to construct on-site or off-site public and private infrastructure improvements
such as roadways, utilities or other improvements necessary to supp01i the Project, whether such
exactions constitute subdivision improvements, mitigation measures in connection with
environmental review of the Project, or impositions made under Applicable City Regulations.
For purposes of this Agreement, Exactions do not include Impact Fees.
"Existi11g Approvals" means and includes those pennits and approvals for the
Project granted by City to Developer as of the Effective Date as set fo1ih in Recital G.
"Existi11g Impact Fees" is defined in Section 4.1.
"Fe11ce Exceptio11" is defined in Recital D.
"FUHSD" is defined in Section 5.1.1.
"General Plan " means the City of Cupertino's General Plan 2000-2020 , as
am ended through the Effective Date.
"General Pla11 EIR" means the General Plan Amendment, Housing Element
Update, and associated Rezoning Project Enviromnental Impact Repo1i ("EIR") that was
ce1iified by the City Council in December 2014 and the addendum to that EIR that was approved
by the City Council in October 2015.
"Heart of the City Exception" is defined in Recital D .
"Hotel" means the approximately 12 2 room full service neighborhood business
hotel to be constructed as paii of the Project.
"Hotel Developer" means Cupe1iino 10145, LLC , a California limited liability
company, and its pennitted successors and assigns .
"Hotel Parcel " is defined in Recital C.
6
"Hotel Rooms " means all guest hotel units within the Hotel, which as of the
Effective Date, are estimated to total 122 Hotel Rooms. "Hotel Room" means each of the
individual Hotel Rooms.
"Housing Mitigation Fees" are defined in Section 4.1.1.
"Impact Fees" means the monetary amount charged by City in connection with a
Development Project for the purpose of defraying all or a portion of the cost of mitigating the
impacts of the D evelopment Project or development of the public facilities related to the
Development Project, including, any "fee" as that tem1 is defined by Government Code section
66000(b ). For purposes of this Agreement, a fee that meets both the definitions of an Impact Fee
and an Exaction will be considered to be an Impact Fee.
"Litigation Challenge" is defined in Section 9.3.
"Major Agreement Amendment" is defined in Section 8.3 .2.
"Major Project Amendment" is defined in Section 8.2.2.
"Mate rial Condemnation " is defined in Section 13 .1.
"MND" is defined in Recital E.
"Mortgage" means any mortgage, deed of trust, security agreement, and other
like security instrument encumbering all or any portion of the Property or any of D eveloper's
rights under this Agreement.
"Mortgagee " means the holder of any Mortgage, and any successor, assignee or
transferee of any such M01igage holder.
"Municipa l Code " means and refers to the City of Cupe1iino 's Municipal Code,
as amended from time to time.
"Negotiated Transportation Infrastructure Contribution" is defined in Section
4.1.4.
"New City Laws " means and includes any ordinances, resolutions, orders, rules,
official policies, standards, specifications, guidelines or other regulations , which are promulgated
or adopted by the City (including but not limited to any City agency, body, department, officer or
employee) or its electorate (tlu·ough their power of initiative or otherwise) after the Effective
Date.
"Notice of Breach" is defined in Section 12.1.
"Other Agency Fees" is defined in Section 4.3.
"Other Agency Subsequent Approvals" means Subsequent Project Approvals to
be obtained from entities other than the City.
7
"Park Impact Fees " are defined in Section 4.1.2 .
"Parties " shall mean City and Developer.
"Permitted Delay" is defined in Section 13 .4 .
"Planning Commission" means the City of Cupertino Planning Commission.
"Prevailing Wage Laws " is defined in Section 9.2 .
"Processing Fees" means all fees for processing Development Project
applications, including any required supplemental or other further environmental review, plan
checking and inspection and monitoring for land use approvals , design review, grading and
building pennits, General Plan maintenance fees, and other pennits and entitlements required to
implement the Project, which are in effect at the time those pennits , approvals or entitlements are
applied for , and which are intended to cover the actual costs of processing the foregoing.
Approvals.
"Project Approvals " means the Existing Approvals and all Subsequent
"Project" is d efined in Recital D.
"Property" means , collectively, the Hotel Parcel and the Residential Parcel.
"Public Art Contribution " is defined in Section 4.1.3.
"Residential Developer " means Marina Plaza, LLC, a California limited liability
company, and its p e1mitted successors and assigns.
"Residential Parcel" is defined in Recital C .
"Residential Units" means all of the residential rental apaiiment units in the
Project, which as of the Effective Date, are estimated to total 188 Residential Units.
"School District Agreement" is defined in Section 5.1.1.
"Subdivision Map A ct " means California Government Code sections 66410
tlu·o ugh 66499 .58 , as it m ay be amended from time to time.
"Subsequent Approvals" is defined in Section 7 .1.
"TDM Program" is defined in Section 5 .1.2.
"Term " is defined in Section 2.2.
"TMA " is defined in Section 5 .1.2.
"TMA Pay ment" is defined in Section 5 .1.2.
8
"Tree Removal Permit" is defined in Recital D.
"Use Permit" is defined in Recital D.
ARTICLE2
EFFECTIVE DA TE AND TERl\1
2 .1 Effective Date. The Effective Date of this Agreement shall be the later of (a) the
date that is thirty (30) days after the date that the Enacting Ordinance is adopted, and (b) the date
this Agreement is fully executed by the Paiiies. The Effective Date is inserted at the beginning
of this Agreement. The Paiiies acknowledge that section 65868.5 of the Development
Agreement Statute requires that this Agreement be recorded with the County Recorder no later
than ten (10) days after the City enters into this Agreement, and that the burdens of this
Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all
successors in interest to the Paiiies to this Agreement. The City Clerk shall cause such
recordation.
2 .2 Tenn of Agreement. The "Term" of this Agreement shall conunence on the
Effective Date and shall expire on the fifth (5 th) anniversary of the Effective Date, unless earlier
tenninated. Following the expiration of the Tenn, or the earlier completion of the development
of the Project and satisfaction of all Developer's obligations in connection therewith, this
Agreement shall be deemed tenninated and of no further force and effect.
2.3 City Representations and WaITanties. City represents and warrants to Developer
that, as of the Effective Date:
2.3 .1 City is a municipal corporation, and has all necessary powers under the
laws of the State of California to enter into and perfonn the undertakings and obligations of City
under this Agreement.
2.3.2 The execution and delivery of this Agreement and the perfornrnnce of the
obligations of the City hereunder have been duly authorized by all necessary City Counci l action
and all necessary approvals have been obtained.
2 .3 .3 This Agreement is a valid obligation of City and is enforceable in
accordance with its tenns .
During the Term of this Agreement, City shall , upon learning of any fact or
condition which would cause of any of the waITanties and representations in this Section 2.3 not
to be true, i1runediately give w1itten notice of such fact or condition to Developer.
2.4 Developer Representations and Wan-antie~. Developer represents and waiTants to
City that , as of the Effective Date:
2.4.1 Developer is duly organized and validly existing under the laws of the
State of California, and is in good standing and has all necessary powers under the laws of the
State of California to own property interests and in all other respects enter into and perforn1 the
undertakings and obligations of Developer under this Agreement.
9
2.4.2 The execution and delivery of this Agreement and the necessary
perfonnance of the obligations of Developer hereunder have been duly authorized by all
necessary company action and all necessary approvals have been obtained.
2.4.3 This Agreement is a valid obligation of Developer and is enforceable in
accordance with its tenns.
2.4.4 Developer has not (a) made a general assigru11ent for the benefit of
creditors; (b) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Developer's creditors; (c) suffered the appointment of a receiver to take possession of
all, or substantially all, of Developer's assets; ( d) suffered the attaclunent or other judicial seizure
of all, or substantially all , of Developer's assets; or ( e) admitted in w1iting its inability to pay its
debts as they come due.
During the Tenn of this Agreement, Developer shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section 2.4 not to
be true, immediately give written notice of such fact or condition to City.
ARTICLE 3
DEVELOPMENT OF THE PROPERTY
3 .1 Vested Rights . The Property is hereby made subject to the provisions of this
Agreement. Developer shall have the vested right to develop the Property and the Project in
accordance with and subject to the Project Approvals, Applicable Law and this Agreement,
which shall control the pern1itted uses , density and intensity of use of the Property and the
maximum height and size of buildings on the Property.
3.2 Life of Approvals. Pursuant to Government Code section 66452.6(a) and this
Agreement, the life of the Project Approvals shall automatically be extended to and until the later
of the following: (1) the end of the Tenn of this Agreement; or (2) the end of the te1m or life of
any such Project Approval. Notwithstanding the foregoing, the vested elements secured by
Developer under this Agreement shall have a life no greater than the Tenn of this Agreement.
3.3 Pennitted Uses. The pennitted uses for the Property and the Project are those set
fo1ih in the Project Approvals, and include the following:
a) Two mixed-use buildings containing a total of 188 Residential Units,
approximately 22,600 square feet of c01mnercial space, and associated facilities and residential
infrastructure;
b) A 122-room full service neighborhood business hotel; and
c) Underground and surface parking structures;
The number of Residential Units and Hotel Rooms. as well as the amount of square footage for
commercial use, are subject to the Project and Agreement amendment processes as set f01ih in
Sections 8.2 and 8.3 herein. The Residential Units are approved as rental apartments only. Any
changes to the map for the Prope1iy, including, but not limited, to parcelization or
JO
condominiumization of the Residential Units , shall require further City review and approval. In
the ev ent of a conflict between the Project Approvals and the tenns of this Section 3 .3, the
Project Approvals shall govern.
3.4 Applicable Law. City and Developer acknowledge and agree that City is
restricted in its auth01ity to limit its police power by contract and that the limitations ,
reservations and exceptions contained in this Agreement are intended to reserve to City all of its
police power that cannot be so limited . Notwithstanding the foregoing reservation by City, it is
the intent of City and Developer that this Agreement be construed to provide Developer with the
maximum rights afforded by law, including but not limited to , the Development Agreement
Statute. Therefore, subject to the limitations in Section 3.5 , 3.7 , and 3 .9, the laws, rules,
regulations, official policies , standards and specifications of City applicable to the development
of the Property and/or the Project shall be ( collectively, "Applicable Law"):
(a) Those rules, regulations, official policies, standards and specifications of the City
set f01ih in the Project Approvals and this Agreement ;
(b) With respect to matters not addressed by and not otherwise inconsistent with the
Project Approvals and this Agreement, those laws, rules , regulations , official policies , standards
and specifications (including City ordinances and resolutions) governing pem1i tted uses, building
locations , timing and manner of construction, densities , intensities of uses , heights and sizes,
requirements for on-and off-site infrastructure and public improvements , fees and exactions,
including without limitation ordinances , regulations, policies and enactments regulating the
timing or density on hillside development, in each case only to the extent in full force and effect
on the Effective Date; ·
(c) New City Laws that relate to hearing bodies , petitions, applications , notices ,
findings, records , hearings , repo1is, recommendations , appeals and any other matter of procedure
imposed at any time, provided such New City Laws are unifonnly applied on a City-wide basis
to all substantially similar types of Development Projects and properties;
(d) New City Laws that revise City's unifonn construction codes , including City's
building code, plumbing code, mechanical code, electrical code, fire code, grading code and
other unifonn construction codes, as of the date of pennit issuance , provided, that such New City
Laws are unifonnly applied on a City-wide basis to all substantially similar types of
Development Projects and prope1iies;
( e) New City Laws that are necessary to protect physical health and safety of the
public; provided, that such New City Laws are unifonnly applied on a City-wide basis to all
substantially similar types of Development Projects and prope1iies;
(f) New City Laws that do not conflict with this Agreement or the Project Approvals,
pro v ided such New City Laws are unifonnly applied on a City-wide basis to all substantially
similar types of Development Projects and properties; and
11
(g) New City Laws that do not apply to the Property and/or the Project due to the
limitations set forth above, but only to the extent that such New City Laws are accepted in
writing by D eveloper in its sole discretion.
3 .5 Timing of Development. Developer shall have no obligation to develop the
Project or any component of the Project. The Project may be built in phases in response to
market conditions and other factors. The Paiiies acknowledge that Developer caimot at this time
predict when or the rate at which or the order in which phases will be developed. Such decisions
depend upon numerous factors which are not within the control of Developer, such as market
orientation and demand, Developer's business needs, interest rates, competition and other similar
factors . Without any limitation of the foregoing, it is the desire of the Paiiies hereto to avoid the
result in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), in which the
California Supreme Comi held that the failure of the Parties therein to consider, and expressly
provide for , the timing of development resulted in a later-adopted initiative restricting the timing
of development to prevail over such Parties' agreement. Notwithstanding the adoption of any
New City Laws, including an initiative adopted after the Effective Date by City's electorate to
the contrary, the Paiiies acknowledge that, except for the Affordable Units, which shall be
developed as set forth in Section 3.12 below, and as otherwise provided for in this Agreement,
Developer shall have the vested right to develop the Project in such order and at such rate and at
such times as Deve loper deems appropriate in its sole discretion.
3 .6 Compliance with Laws. Developer, at its sole cost and expense, shall comply
with the requirements of, and obtain all pennits and approvals required by local, State and
Federal agencies having jurisdiction over the Propetiy or Project. Furthermore, Developer shall
carry out the Project work in confonnity with all Applicable Law , including applicable state
labor laws and standards; Applicable City Regulations ; and all applicable disabled and
handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C.
section 12101, et seq., Government Code section 4450, et seq., Government Code section 11135 ,
et seq ., and the Umuh Civil Rights Act, Civil Code section 51, et seq.
3.7 No Conflicting Enactments. Except as otherwise provided in this Agreement,
City shall not impose on the Project (whether by action of the City Council or by initiative,
referendum or other means) any New City Law that is in conflict with this Agreement or the
Existing Approvals . Without limiting the generality of the foregoing, City shall not (a) apply to
the Property any change in land use designation or pennitted use of the Propetiy; (b) limit or
control the ability to obtain public utilities, services, or facilities (provided, however, nothing
herein shall be deemed to exempt the Project or the Propetiy from any water use rationing
requirements that may be imposed from time to time in the future); ( c) limit or control building
setbacks, square footages or heights; the location of buildings and structures; parking
requirements; or grading in a maimer that is inconsistent with or more restrictive than the
limitations included in the Existing Approvals or this Agreement; or ( d) limit or control the rate,
timing, phasing or sequencing of the approval, development or construction of all or any part of
the Project.
3.8 Changes in the Law . As provided in section 65869.5 of the Development
Agreement Law, this Agreement shall not preclude the applicability to the Project of changes in
laws, regulations , plans or policies, to the extent that such changes are specifically mandated and
12
required by changes in State or Federal laws or by changes in laws, regulations , plans or policies
of special districts or other governmental entities, other than the City, created or operating
pursuant to the laws of the State of California ("Changes in the Law"). In the event Changes in
the Law prevent or preclude compliance with one or more provisions of this Agreement, the
Parties shall meet and confer in good faith in order to detennine whether such provisions of this
Agreement shall be modified or suspended, or perfonnance thereof delayed, as may be necessary
to comply with Changes in the Law, and City and Developer shall agree to such action as may be
reasonably required. Nothing in this Agreement shall preclude Developer from contesting by
any available means (including administrative or judicial proceedings) the applicability to the
Project of any such Changes in the Law .
3.9 Initiatives and Referenda. If any New City Law is enacted or imposed by
initiative or referendum, or by the City Council directly or indirectly in connection with any
proposed initiative or referendum, which New City Law would conflict with this Agreement or
reduce the development rights provided by this Agreement, such New City Law shall not apply
to the Project. No moratoiium or other limitation (whether relating to the rate, timing, phasing,
density, height or sequencing of development) affecting subdivision maps, building pennits or
other entitlements to use that are approved or to be approved, issued or granted within the City,
or portions of the City, shall apply to the Project. City, except to submit to vote of the electorate
initiatives and referendums required by Applicable Law to be placed on a ballot, shall not adopt
or enact any New City Law, or take any other action which would violate the express provisions
of this Agreement or the Project Approvals . Developer reserves the right to challenge in court
any New City Law that would conflict with this Agreement or reduce the development lights
provided by this Agreement. Notwithstanding the foregoing, the Parties acknowledge that City's
approval of this Agreement is a legislativ e action subject to referendum. Developer
acknowledges and agrees that City does not hav e authoiity or juiisdiction over any other public
agency's ability to grant governmental approvals or permits or to impose a moratorium or other
limitation that may affect the Project.
3 .10 Regulation by Other Public Agencies. Developer acknowledges that other public
agencies not within the control of City possess authority to regulate aspects of the development
of the Prope1iy separately from or jointly with City, and this Agreement does not limit the
authority of such other public agencies. Developer will, at the time required in accordance with
Developer's construction schedule, apply for all such other pennits and approvals as may be
required by other governmental or quasi-govennnental entities in c01mection with the
development of, or the provision of services to, the Project. Developer acknowledges that City
does not control the amount of any fees imposed by such other agencies. In the event that such
fees are imposed upon Developer and are in excess of those allowed by Applicable Law and
Developer wishes to object to such fees, Developer may pay such fees under protest. The City
agrees not to delay issuance of pennits or other Subsequent Approvals and entitlements under
these circumstances, provided Developer provides City with proof of payment of such fees.
3.11 No Reservation of Sanitary Sewer or Potable Water Capacity. City has found the
Project to be consistent with the General Plan which anticipates that there will be sufficient
potable water and sanitary sewer capacity to serve future development contemplated by the
General Plan, including the Project, tlu·ough the Tenn. However, nothing in this Agreement is
intended to provide any reservation of potable water or sanitary sewer capacity.
13
3 .12 Affordable Housing. Prior to or concurrently with the recordation of this
Agreement, Developer and City shall enter into and record an Affordable Housing Agreement in
the fom1 attached as Exhibit C ("Affordable Housing Agreement"), which shall provide,
among other things, for: (1) the provision of a total of eighteen (18) affordable units in the
Project, sixteen (16) to be occupied exclusively by, and rented to, households of very low income
and two (2) to be occupied exclusively by, and rented to, households of moderate income
("Affordable Units"); (2) a concurrent tem1 for all Affordable Units of the later of (i) fifty five
(55) years from the issuance of the final ce1tificate of occupancy for the Project or (ii) the date
the Project buildings are either (a) demolished or (b) converted to a non-residential use by
Developer with any City-issued approvals and pennits that may be required; and (3) the priority
of the Affordable Housing Agreement over any liens or deeds of trust recorded against the
Prope1ty other than a lien for current unpaid property taxes. Developer further acknowledges,
under Civil Code Sections 1954.52(b) and 1954.53(a)(2), that it has agreed to limit rents in the
Affordable Units in consideration for the City's agreements to enter into a Development
Agreement for the Project and for the City's provision of Density Bonus Incentives, as defined in
the Affordable Housing Agreement. Developer hereby agrees that any Affordable Units
provided pursuant to this Agreement are not subject to Civil Code Section 1954.52(a) or any
other provision of the Costa-Hawkins Act inconsistent with controls on rents, and further agrees
that any limitations on rents imposed on the Affordable Units are in confonnance with the Costa-
Hawkins Act.
3 .13 Universal Accessibility; Senior Housing. Developer shall ensure that no fewer
than six (6) apartment units in the Project are universally accessible to people of all ages and
abilities, as detennined in City's reasonable discretion, and shall exercise best efforts to seek
design solutions to have such units qualify as lawful senior housing under Federal and State
requirements.
ARTICLE4
FEES
4.1 Impact Fees. Except as otherwise provided in Section 4.1.4 below with respect to
the potential Citywide Transpo1tation Impact Fee, for one (1) year following the Effective Date,
City has the right to impose only such Impact Fees as City has adopted as of the Effective Date,
including those set frnth in the Project Approvals ("Existing Impact Fees"). For convenience of
reference, the Existing Impact Fees are identified in Exhibit D attached hereto and incorporated
herein. Any Existing Impact Fees that are in existence as of the Effective Date but are
inadvertently omitted from Exhibit D may still be charged. In the event of such inadve1ient
omission, the Parties shall revise Exhibit D to correct such error. Notwithstanding any other
provision of this Agreement, after one (1) year following the Effective Date, payment of the
Existing Impact Fees shall be at the rates in effect when such fees are due, provided, however,
that Developer shall have the right, in its sole and absolute discretion, to elect to prepay in full
any Existing Impact Fees (including the Citywide Transportation Impact Fee if and when
adopted) otherwise required under this Agreement, and if such prepayment is made to the City,
then the Existing Impact Fees (including the Citywide Transp01tation Impact Fee if and when
adopted) shall be paid at the rate in effect at time of payment.
14
4.1.1 Housing Mitigation Fees. Notwithstanding anything to the contrary in
City Resolution No. 15-036, in lieu of and in full satisfaction of, the affordable housing
mitigation fees payable pursuant to the fee program adopted by City Resolution No. 15-036 (the
"Housing Mitigation Fees") that would be applicab l e to the Project and currently estimated, as
of the Effective Date, at Seven Million Ninety Thousand Four Hundred Fifteen Dollars
($7,090,415.00), Developer shall comply with the obligation to provide the Affordable Units as
set fo1ih in Section 3.12 of this Agreement and shall pay a Housing Mitigation Fee balance of
Two Million Nine Hundred Eighty Eight Thousand Four Hundred Fifteen Dollars
($2,988,415.00) payable at the time of issuance of the first building pennit (the "Housing
Mitigation Balance"). The Housing Mitigation Balance will increase annually starting one (1)
year after the Effective Date based on increases in the Consumer Price Index over the prior one-
year period. If Developer modifies the Project pursuant to Section 8 of this Agreement and such
amendment results in a change in the number of Residential Units, Hotel Rooms, or square
footage of cmmnercial or retail space, the Housing Mitigation Fees shall be recalculated
according to Housing Mitigation Fees in effect at the time of payment.
4.1.2 Park Impact Fees .. Developer shall pay to City in full at the time of
issuance of the first building pennit for the Project those parkland impact fees payable pursuant
to the fee program codified in Municipal Code Chapter 13 .08 (the "Park Impact Fees") at the
rate in effect at the time of payment, except that if Developer pays the Park Impact Fees within
one (1) year after the Effective Date, the Park Impact Fees shall be Twenty One Thousand Six
Hundred Dollars ($21,600.00) per Residential Unit. The eighteen (18) Affordable Units shall not
be subject to the Park Impact Fees. Based on an estimated 188 Residential Units, and excepting
the eighteen (18) Affordable Units, the total Park Impact Fees for the Project if paid within one
( 1) year of the Effective Date, are estimated to be Three Million Six Hundred Seventy Two
Thousand Dollars ($3 ,672 ,000.00). If Developer modifies the Project pursuant to Section 8 of
this Agreement and such amendment results in a change in the number of Residential Units, the
Park Impact Fees shall be calculated by multiplying the revised number of Residential Units by
the per unit rate in effect at time of payment. Developer hereby waives its right to claim a credit
against park fees available to Developer pursuant to Section 13.08.070 of the Municipal Code for
private and public recreation and open space within the Project.
4.1.3 Public Art Contribution. Notwithstanding anything to the contrary in
Municipal Code Chapter 19 .148, Developer shall expend not less than the lesser of: (1) one-
quarter of one percent (0.25%) of the total project budget; or (2) One Hundred Thousand Dollars
($100,000.00) for public aiiwork, including but not limited to design, fabrication, ai1d installation
as part of the Project ("Public Art Contribution"). Developer shall be allowed to meet its
Public Ali Contribution obligation by providing public aiiwork within the Project at a cost of not
less than the value of the minimum Public A1i Contribution. The public aiiwork sha ll be
approved by City and installed prior to issuance of the first certificate of occupancy for the
Project.
4.1.4 Transpo1iation Impact Fees. The Paiiies acknowledge that, as of the
Effective Date, City has not adopted citywide traffic Impact Fees, but is in the process of
considering a citywide regional transportation Impact Fee that would be applicable to the Project
and other similarly situated Development Projects in the City ("Citywide Transportation
Impact Fee"). If City has not adopted a Citywide Transpmiation Impact Fee within one (1) year
15
of the Effective Date, Developer shall pay to the City an amount of Four Hundred Thirteen
Thousand Nine Hundred Fifty Two Dollars ($413 ,9 52.00) as a negotiated transportation
infrastructure contribution ("Negotiated Transportation Infrastructure Contribution"). The
Negotiated Transportation Infrastructure Contribution shall be payable at the time of the first
building pennit for the Project. If Developer modifies the Project pursuant to Section 8 of this
Agreement and such amendment results in a change in the number of Residential Units, Hotel
Rooms, or square footage of commercial or retail space, the Negotiated Transportation
Infrastructure Contribution shall be adjusted according to the formula in Exhibit E . If City
adopts a Citywide Transpmiation Impact Fee within one (1) year of the Effective Date,
Developer shall pay the lesser of (i) the Negotiated Transportation Infrastructure Contribution or
(ii) the Citywide Transportation Impact Fee at the rate in effect at the time of payment. In the
event that City adopts a Citywide Transpmiation Impact Fee within one (1) year of the Effective
Date, Developer has paid the Negotiated Transportation Infrastructure Contribution, and the
amount of such Citywide Transportation Impact Fee is less than the amount of the Negotiated
Transportation Infrastructure Contribution, City shall credit D eveloper the difference by (1) first
applying the credit to any fees or payments owed to City no later than the date of issuance of the
final ce1iificate of occupancy; then (2) after application of all applicable credits, up to the date
that is one (1) year from the issuance of the final ce1iificate of occupancy, refunding the
remainder of the difference. If City adopts a Citywide Transportation Impact Fee more than one
(1) year from the Effective Date, Developer shall have no right to any refund of the difference
between the amount of the Negotiated Transportation Infrastructure Contribution and the amount
of such Citywide Transportation Impact Fee.
4 .2 Processing Fees. Subject to Developer's right to protest and/or pursue a challenge
in law o_r equity to any new or increased Processing Fee, City may charge and Developer agrees
to pay all Processing Fees, which are in effect on a citywide basis at the time those pennits,
approvals or entitlements are applied for.
4 .3 Other Agency Fees. Nothing in this Agreement shall preclude City from
collecting fees from Developer that are lawfully imposed on the Project by another agency
havingjmisdiction over the Project, which the City is required to collect pursuant to Applicable
Law ("Other Agency Fees").
4.4 Taxes and Assessments. City may impose and Developer agrees to pay any and
all existing, new, modified or increased taxes and assessments imposed in accordance with the
laws in effect as of the date due, at the rate in effect at the time of payment, including without
limitation, the construction taxes imposed by Chapter 3.32 of the Municipal Code
("Construction Tax"). The City acknowledges and agrees that the Affordable Units which shall
not be subject to the Construction Tax.
4.5 Com1ection Fees. Subject to Developer's right to protest and/or pursue a
challenge in law or equity to any new or increased Com1ection Fee, City may charge and
Developer shall pay any Com1ection Fee that is lawfully adopted .
4.6 Right to Challenge Fees . Developer reserves the right to protest or pursue a
challenge in law or equity to any new or increased fee. In the event Developer desires to
challenge such new or increased fee, Developer shall pay the fee under protest. The City agrees
16
not to delay issuance of pennits , approvals or entitlements pending resolution of such protest or
challenge to the fee.
ARTICLES
PUBLIC BENEFITS
5 .1 Public Benefits Obligation~. In consideration of the rights and benefits confe1Ted
by City to Developer under this Agreement, Developer shall perfonn the public benefit
obligations and pay to City the contributions set fo1ih in this Agreement, including in this Article
5, all within the times set forth herein.
5.1.1 School District Agreement. The Parties acknowledge that within ninety
(90) days of the Effective Date, or at such later date as the City Manager may agree, Developer
will enter into one or more school impact mitigation agreements ("School District Agreement")
with Fremont Union High School District ("FUHSD") and Cupertino Union School District
("CUSD") providing for payment of statutory school impact fees and the following additional
voluntary community educational benefits: (a) annual monetary contributions payable directly to
FUHSD and CUSD of not less than Eighteen Thousand Dollars ($18,000) and Forty Six
Thousand Dollars ($46,000), respectively, conunencing no later than the date of issuance of the
first temporary Ce1iificate of Occupancy for any Residential Unit and payable ammally thereafter
upon the am1iversary of such date; (b) use of no fewer than five (5) days of Hotel Room use per
year by each ofFUHSD and CUSD at no charge; and (c) use of the community room on the
Residential Parcel from time to time by FUHSD or CUSD when available at no charge and
pursuant to the tenns of the School District Agreement. If the two residential buildings on the
Residential Parcel are developed as separate phases, then the minimum annual payment amounts
set forth in clause (a) above may be prorated based on the ratio of the number of Residential
Units in the residential building for which a temporary Certificate of Occupancy has been issued
as compared to the total number of Residential Units in the Project. The effectiveness of the
School District Agreement and Developer's obligations thereunder may be contingent upon
City's issuance of a building pennit for the Project. Developer's failure to timely enter into a
School District Agreement confonning to the tenns of this Section or Developer's breach of the
School Distiict Agreement once such agreement has been entered into shall be considered a
Default under this Agreement. The School District Agreement shall remain in effect until the
date which is twenty (20) years following the issuance of the first temporary Ce1iificate of
Occupancy for a Residential Unit; or such longer pe1iod of time as may be agreed upon by the
Developer and FUHSD and/or CUSD. Nothing in this Section 5.1 .1. shall prevent Developer
and FUHSD and CUSD from entering into a School District Agreement having a longer tenn,
providing for greater financial contiibutions than the minimums specified above, or extending
the tenn of the School Dist1ict Agreement beyond the twenty (20) year tenn set fmih above.
5.1.2 Transportation Benefits . Pursuant to the conditions of approval for the
Project Approvals, Developer shall fund and fully implement a Transp01iation Demand
Management Program ("TDM Program") for the Project. In addition, the Paiiies agree that if
(a) a Transportation Management Association ("TMA") is fanned whose coverage area includes
the Prope1iy, and (b) the TMA includes the operation or funding of a shuttle that includes a
shuttle stop within 400 feet of the Property, Developer shall make an initial payment and annual
payments to suppo1i the establislunent and operation of the TMA (collectively, the "TMA
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Payments") .. Upon the establishment of such a TMA, Developer shall make an initial one-time
payment to City in the amount of Fifty Thousand Dollars ($50,000.00) to fund a p01iion of the
start-up costs of such TMA within thirty (30) days following City's demand. On January 1 of
the calendar year following such initial payment, and each January 1 thereafter, Developer shall
make an annual payment to City equal to the lesser of (A) the Project's proportionate share of
estimated ridership for the TMA program, or (B) the Annual Maximum Contribution . "Annual
Maximum Contiibution" means Twenty Thousand Dollars ($20 ,000.00) per year as increased
amrnally based on increases in the Consumer P1ice Index over the prior one-year period.
Except as the Parties may otherw ise agree, the TMA Payments shall represent Developer's sole
contribution and obligation towards the fonnation of the TMA. If the City Council does not
authorize the fonnation and ongoing operation of a TMA during the Tenn, Developer shall hav e
no further obligation under this Agreement to make the TMA Payments. Other than the
obligations of this Section 5.1.3, Developer shall have no further obligations under this
Agreement with respect to any TMA in Cupertino . Developer reserves the right to elect, in its
sole and absolute discretion, to join any TMA if and when fonned . If a TMA is fonned , the City
and Dev eloper shall review , on an annual basis , the TDM Program to ensure that there is a
minimum of duplicativ e effo1is .
5 .1.3 Public Impro vements. Pursuant to the conditions of approval for the
Ex isting Approvals , Dev el op er agreed to constru ct ce1iain public improvements including traffic
signal modifications at a cost of One Hundred Fifty Thousand Dollars ($150,000), bicycle and
pedestiian improvements at a cost of Thi1iy Fi v e Thousand Dollars ($35 ,000), and a bus shelter
and benches at a cost of F01iy Thousand Dollars ($40,000) (collectively, "Public
Improvements "). Prior to the issuance of the first building permit, Developer shall execute,
acknowledge and deliv er to City for recordation in the Official Records of Santa Clara County, a
public improv ements agreement in a form reasonably acceptable to the City Attorney requiring
Deve loper to , among other things , complete construction and installation of the Public
Impro v ements in accordance with plans and specifications approved by the City Engineer, within
twenty four (24) months following the issuance of the first building pennit for the Project,
dedicate such public improvements to City upon satisfactory completion thereof, provide a one
year warranty with respect to material and workmanship, post completion and labor and
mate1ials security, guarantee completion of such work and payment of all labor and materials
required , maintain adequate insurance, and indemnify and defend City and all its related paiiies
with respect to any claim arising from perfonnance of such work .
5.2 City of Cupertino Business License. Developer, at its expense, shall obtain and
maintain a City of Cupe1iino business license at all times during the Tern1 , and shall include a
provision in all general contractor agreements for the Project requiring each such general
contractor to obtain and maintain a City of Cupertino business license during perfonnance of the
work of construction .
5 .3 Sales Tax Point of Sale Designation. Developer shall use good faith, diligent
eff01i s to the extent allo w ed by law to require all p er sons and entities prov iding bulk lumber,
concrete, structural steel and pre-fabricated building components , such as roof trusses , to be used
in co m1ection w ith the construction and de velopment of, or incorporated into , the Project, to (a)
obtain a use ta x direct paym ent pennit; (b) elect to obtain a subcontractor p ennit for the job site
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of a contract valued at Five Million Dollars ($5,000 ,000.00) or more ; or (c) otherwise designate
the Property as the place of use of material used in the construction of the Project in order to
have the local portion of the sales and use tax distributed directly to City instead oftlu-ough the
county-wide pool. Developer shall instruct its general contractor(s) for the Project to, and cause
such general contractor(s) to instruct its /their subcontractors to, cooperate with City to ensure the
local sales/use tax derived from construction of the Project is allocated to City to the fullest
extent possible. To assist City in its efforts to ensure that such local sales/use tax is so allocated
to City, Developer shall on an annual basis , or more frequently upon City 's request, provide City
with such information as shall be reasonably requested by City regarding subcontractors working
on the Project with contracts in excess of the amount set fo1ih above, including a description of
all applicable work and materials and the dollar value of such subcontracts, and, if applicable,
evidence of their designation, such as approvals or applications for the direct payment pennit, of
City as the place of use of such work and materials. City may use such infonnation to contact
each subcontractor who may qualify for local allocation of use taxes to City.
5.4 Use of Hotel Conference Rooms. Prior to or concurrently with the recordation of
this Agreement, Developer and City shall enter into and record an Agreement to Be Recorded
Affecting Real Property with respect to the Hotel substantially in the forn1 attached as Exhibit F
("Agreement to be Recorded"). The Agreement to be Recorded provides, among other things ,
that the City shall be entitled to use the conference rooms at the Hotel subject to ce1iain tenns
and conditions, and that the Hotel shall not operate as an extended stay hotel.
6.1 Annual Review .
ARTICLE 6
ANNUAL REVIEW
6.1.1 Purpose. As required by California Government Code section 65865.1
and Municipal Code section 19.144.060(H), City and Developer shall review this Agreement and
all actions taken pursuant to the tenns of this Agreement with respect to the development of the
Project every twelve (12) months to determine good faith compliance with this Agreement.
Specifically, City's amrnal review shall be conducted for the purposes of detennining
compliance by Developer with its obligations under this Agreement. Each amrnal review shall
also document the status of the Project development.
6 .1.2 Conduct of Annual Review. The amrnal review shall be conducted as
provided in this Section 6 .1.2. By December 1st of each year, Developer shall provide
documentation of its good faith compliance with this Agreement during the previous calendar
year, including a completed Annual Review Fonn in the fonn provided in Exhibit G and such
other information as may reasonably be requested by the Plam1ing Director. If the Planning
Director finds good faith compliance by Developer with the tenns of this Agreement, Developer
shall be notified in writing and the review for that period shall be concluded. If the Plaiming
Director is not satisfied that Developer is perfonning in accordance with the tenns and
conditions of this Agreement, the Plam1ing Director shall prepare a written rep01i specifying why
Developer may not be in good faith compliance with this Agreement, refer the matter to the City
Council , and notify Develop er in w1iting at least fifteen (15) business days in advance of the
time at which the matter will be considered by the City Council. This notice shall include the
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time and place of the City Council's public hearing to evaluate good faith compliance with this
Agreement, a copy of the Plam1ing Director 's report and recommendations, if any, and any other
infonnation reasonably necessary to infom1 Developer of the nature of the proceeding. The City
Council shall conduct a public hearing at which Developer must submit evidence that it has
complied in good faith with the tenns and conditions of this Agreement. Developer shall be
given an opportunity to be heard at the hearing. The findings of the City Council on whether
Developer has complied with this Agreement for the period under review shall be based upon
substantial evidence in the record. If the City Council determines, based upon substantial
evidence, that Developer has complied in good faith with the terms and conditions of this
Agreement, the review for that period shall be concluded. If the City Council detennines , based
upon substantial evidence in the record, that Developer has not complied in good faith with the
tenns and conditions of this Agreement, or there are significant questions as to whether
Developer has complied with the tem1s and conditions of this Agreement, the City Council , at its
option, may continue the hearing and may notify Developer of the City's intent to meet and
confer with Developer within thi1iy (30) days of such detennination, p1ior to taking fmther
action . Following such meeting, the City Council shall resume the hearing in order to further
consider the matter and to make a detennination regarding Developer's good faith compliance
wi th the tenns and conditions of this Agreement. In the event City detennines Developer is not
in good faith compliance with the tem1s and conditions of this Agreement, City may give
Developer a written Notice of Breach, in which case the provisions of Section 12.1 , below , shall
c1pp ly.
6 .1.3 Failure to Conduct Annual Review. Failure of City to conduct an annual
review shall not constitute a waiver by City of its rights to otherwise enforce the provisions of
this Agreement no r shall Developer have or asse1i any defense to such enforcement by reason of
any such failure to conduct an aimual review.
6.1.4 Certificate of Compliance. If, at the conclusion of the annual review
described in this Sectiori 6 .1 .2, Developer is found to be in compliance with this Agreement, City
shall , upon request by Developer, issue a Ce1tificate of Compliance ("Certificate") to Developer
· stating that after the most recent ammal review and based upon the infonnation actually known
to an approp1iate official of City specified in such Ce1tificate that: (a) this Agreement remains in
effect, and (b) Developer is not in Default. The Certificate shall be in a recordable fonn, shall
contain infom1ation necessary to communicate constructive record notice of the finding of
compliance, and shall state the anticipated date of c01mnencement of the next ammal review.
Developer may record the Certificate without cost or expense to City.
ARTICLE 7
COOPERATION AND IMPLEMENTATION
7.1 Subsequent Approvals . Ce1tain subsequent land use approvals, entitlements, and
pennits other than the Existing Approvals , will be necessary or desirable for implementation of
the Project ("Subsequent Approvals"). The Subsequent Approvals may include, without
limitation, the following: amendments of the Existing Approvals, grading pennits, building
pennits, design review permits , sewer and water co1mection pennits, certificates of occupancy,
lot line adjustments or lot merger, site plans , development plans, land us e plans , building plans
and specifications , and any amendments to , or repealing of, any of the foregoing . Except as
20
otherwise expressly provided herein, the City shall not impose requirements or conditions upon
the development and construction of the Proj ect that are inconsistent with the Existing Approvals
and the tem1s and conditions of this Agreement.
7.2 Scope QfReview of Subsequent Approvals. By approving the Existing
Approvals, City has made a final policy decision that the Project is in the best interests of the
public health, safety and general welfare. Accordingly, City shall not use its authority in
considering any application for a discretionary Subsequent Approval to change the policy
decisions reflected by the Ex isting Approvals or otherwise to prevent or delay development of
the Project as set forth in the Project Approvals.
7.3 Processing Applications for Subsequent Approvals.
7.3.1 Timely Submittals by Developer. Developer acknowledges that City
cmmot begin processing applications for Subsequent Approvals until Developer submits
complete applications on a timely basis. Developer shall use diligent good faith efforts to
(a) provide to City in a timely manner any and all documents, applications, plans , and other
inforn1ation necessary for City to carry out its obligations hereunder; and (b) cause Developer's
plmmers, engineers , and all other consultants to provide to City in a timely maimer all such
documents, applications , plans and other materials required under Applicable Law . It is the
express intent of Developer and City to cooperate and diligently work to obtain any and all
Subsequent Approvals.
7.3.2 Timely Processing by City. Upon submission by Developer of all
appropriate applications and Processing Fees for any pending Subsequent Approval, City shall ,
to the full° extent allowed by Applicable Law, promptly and diligently, subject to City
ordinances, policies and procedures regarding hiring and contracting, commence and complete
all steps necessary to act on Developer's currently pending Subsequent Approval applications
including: (a) providing at Developer's expense and subject to Developer's request and prior
approval , reasonable ove1iime staff assistance, additional staff and/or staff consultants for
concmTent, expedited planning and processing of each pending Subsequent Approval application
(Developer shall pay such costs at cost plus the then-applicable rate for administrative costs,
which is 15% as of the Effective Date); (b) iflegally required , providing notice and holding
public hearings ; and (c) acting on any such pending Subsequent Approval application.
7.4 Other Agency Subsequent Approvals; Auth01ity of City. City shall cooperate
with Developer, to the extent approp1iate and as pe1111itted by Applicable Law , in Developer's
efforts to obtain, as may be required, Other Agency Subsequent Approvals. Notwithstanding the
issuance to Developer of Other Agency Subsequent Approvals , Developer agrees that City shall
have the tight to review, modify, approve and/or reject any and all submissions subject to the
, Other Agency Subsequent Approvals which, but for the authority of the other governmental or
quasi-governmental entities issuing the Other Agency Subsequent Approvals, would otherwise
require City approval. Developer agrees that City may review, modify, approve and/or reject
any such mate1ials or applications to ensure consistency with this Agreement and the Project
Approvals and Developer shall incorporate any and all changes required by City prior to
submitting such materials and applications to the other go v enm1ental or qu a si-govenunental
entities for review and/or approval.
2 1
ARTICLE 8
AMENDMENT OF AGREEMENT AND PROJECT APPROVALS
8.1 Amendment by Written Consent. Except as otherwise expressly provided herein
(including Section 6. l relating to City's ammal review and Section 12 .3 relating to tennination in
the event of a breach), this Agreement may be tenninated, modified or amended only by mutual
written consent of the Parties hereto or their successors in interest or assignees and in accordance
with the provisions of Govenunent Code sections 65967, 65867.5 and 65868 .
8.2 Project Approval Amendments . To the extent pennitted by Applicable Law,
Project Approvals may, from time to time, be amended in the following manner:
8.2.1 Administrative Project Amendments. Upon D eveloper's written request
for an amendment or modification to the Project Approvals, the City Manager shall detennine :
(i) whether the requested amendment or modification is minor when considered in light of the
Project as a whole; and (ii) whether the requested amendment or modification is consistent with
this Agreement and Applicable Law. If the City Manager or his/her designee finds, in his or her
sole discretion, that the proposed amendment or modification is minor, consistent with this
Agreement and Applicable Law, and will result in no new significant impacts not addressed and
mitigated in the MND , the amendment or modification shall be detennined to be an
"Administrative Project Amendment" and shalh1ot be considered an amendment to the
applicable Project Approvals and shall not require an amendment to this Agreement. Upon the
City Manager's approval, any Administrative Project Amendment shall be automatically
incorporated into the applicable Project Approvals and this Agreement. Lot line adjustments,
minor changes in land uses involving minimal acreage, minor alterations in v ehicle circulation
patterns or vehicle access points , minor changes in the amount of parking and parking layout,
changes in pathway aligmnents, substitutions of comparable landscaping for any landscaping
shown on any final development plan or landscape plan, variations in the location of structures
that do not substantially alter the infrastructure con11ections or facilities that do not substantially
alter the design concepts of the Project, and minor adjustments to the Site Map or Property
Description shall be treated as Administrative Project Amendments.
8.2.2 Major Project Amendments. Any amendment to the Project Approvals or
Subsequent Project Approvals which is detennined not to be an Administrative Project
Amendment as set forth above in Section 8.2.1 shall be deemed a ".Major Project Amendment"
and shall require giving of notice and a public hearing before the Plam1ing Conm1ission and City
Council in accordance with Applicable Law. The City Manager or his or her designee shall have
the authority to detennine if an amendment is a Major Project Amendment subject to this Section
8.2.2 or an Administrative Project Amendment subject to Section 8.2.1 above.
8.3 Amendment of this Agreement. This Agreement may be amended from time to
time, in whole or in part, by mutual written consent of the Paiiies or their successors in interest,
as follows:
8.3.1 Administrative Agreement Amendments. Any amendment to this
Agreement which do es not substantially affect (a) the tenn of this Agreement; (b) pennitted uses
of the Prope1ty ; (c) provisions for the reservation or dedication of land ; (d) conditions , tenns
22
restrictions or requirements for subsequent discretionary actions; ( e) increases in the density or
intensity of the use of the Property or the maximum height or size of proposed buildings; or (f)
monetary contributions by Developer, shall be deemed an "Administrative Agreement
Amendment" and the City Manager or his or her designee, except to the extent otherwise
required by Applicable Law, may approve the Administrative Agreement Amendment without
notice and public hearing.
8.3.2 Major Agreement Amendments . Any amendment to this Agreement
which is detennined not to be an Administrative Agreement Amendment as set forth above in
Section 8.3.1 shall b e deemed a "Major Agreement Amendment" and shall require giving of
notice and a public hearing before the Planning Commission and City Council in accordance
with Applicable Law. The City Manager or his or her designee shall have the authority to
detennine if an amendment is a Major Agreement Amendment subject to this Section 8.3.2 or an
Administrative Agreement Amendment subject to Section 8.3.l above.
8.4 Amendments to Development Agreement Statute . This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Statute as those
pro visions existed as of the date of execution of this Agreement. No amendment or addition to
those provisions which w ould materially affect the interpretation or enforceability of this
Agreement shall be applicable to this Agreement, unless such amendment or addition is
. specifically required by the California State Legislature, or is mandated by a comi of competent
jurisdiction. If such amendment or change is permis sive (as opposed to mandatory), this
Agreement shall not be affected by same unless the Parties mutually agree in writing to amend
this Agreement to pennit such applicability.
8 .5 Requireme11t for Writing. No modification, amendment or other change to this
Agreement or any pro vis i on hereof shall be effective for any purpose unl ess specifically set forth
in a wri ting which reters expressly to this Agreement and is signed by duly authmized
representatives of both Pmiies or their successors in interest. A copy of any change shall be
provided to the City Council within thirty (3 0) days of its execution.
8.6 Reliance on Project MND. The MND which has been certified by City as being
in compliance with CEQA , addresses the potential enviro1m1ental impacts of the entire Project as
it is described in the Project Approvals. It is agreed that, in acting on any discretionary
Subsequent Approvals for the Project, City will rely on the MND to satisfy the requirements of
CEQA to the fullest extent pennissible by CEQA and City will not require a new initial study,
negative declaration or subsequent or supplemental MND unless required by CEQA and will not
impose on the Project any mitigation measures or other conditions of approval other than those
specifically imposed b y the Project Appro vals or this Agreement or specifically required by
Applicable Law.
8 .7 Subsequent CEOA Reyiew . In the event that any additional CEQA
documentation is legally required for any discretionary Subsequent Approval, then the scope of
such documentation shall be focused, to the extent possible consistent with CEQA, on the
specifi c subject matter of the Subsequent Approval, and the City, at Developer's expense, shall
co nduct such additional CEQA review as expeditiously as possible.
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ARTICLE 9
INSURANCE, INDEMNITY AND COOPERATION IN THE EVENT OF
LEGAL CHALLENGE
9.1 Insurance Requirements . Prior to commencement of construction activities and
through completion of all construction activities (including demolition) for the Project,
Dev eloper shall procure and maintain, or cause its contractor(s) to procure and maintain, a
c01mnercial general liability policy in an amount not less than two million ($2,000,000.00)
combined single limit, including contractual liability together with a comprehensive automobile
liability policy in the amount of one million ($1,000 ,000 .00), combined single limit. Such policy
or policies shall be written on an occurrence fonn . Developer's insurance shall be placed with
insurers with a current A.M. Best's rating of no less than A-:VII or a rating otherwise approved
by the City in its sole discretion. Developer shall furnish at City's request appropriate
ce1tificate(s) of insurance evidencing the insurance coverage required hereunder, and City Parties
shall be named as additional insured Parties in such policies . The certificate of insurance shall
contain a statement of obligation on the part of the carrier to notify City of any material change,
cancellation or tennination of the coverage at least thirty (30) days in advance of the effective
date of arty such material change, cancellation or tennination (ten (10) days advance notice in the
case of cancellation for nonpayment of premi urns) where the insurance carrier pro v ides such
notice to Developer. Coverage provided hereunder by Developer shall be primary insurance and
shall not be contributing with any insurance , self-insurance or joint self-insurance maintained by
City, and the policy shall contain such an endorsement. The insurance policy or the endorsement
shall contain a waiver of subrogation for the benefit of City.
9.2 Indemnity and Hold Harmless. Developer shall indemnify, defend (with counsel
reasonably acceptable to City) and hold hannless City Parties from and against any and all
present and future Claims, including Claims for any bodily injury, death, or property damage,
resulting directly or indirectly from ·the development or construction of the Project by or on
behalf of Developer, and/or from any other acts or omissions of Developer under this
Agreement, whether such ·acts or omissions are by Developer or any of Developer's contractors,
subcontractors, agents or employees, except to the extent such Claims arise from the sole active
negligence or willful misconduct of City or City Parties. This Section 9.2 includes any and all
present and future Claims arising out of or in any way connected with Developer's or its
contractors' obligations to comply with all State Labor Code requirements and implementing
regulations of the Department ofindustiial Relations pe1taining to "public works" ( collectively,
"Prevailing ,vage Laws"), including all Claims that may be made by contractors ,
subcontractors or other third paiiy claimants pursuant to Labor Code sections 1726 and 1781.
· 9.3 Defehse and Cooperation in the Event of a Litigation Challenge. City and
Developer shall cooperate in the defense of any comt action or proceeding instituted by a third
paiiy or other govenunental entity or official challenging the validity of any provision of this
Agreement or the Project Approvals ("Litigation Challenge"), and the Parties shall keep each
other infonned of all developments relating to such defense, subject only to confidentiality
requirements that may prevent the communication of such infonnation. To the extent Developer
desires to contest or defend such Litigation Challenge, (a) Developer shall take the lead role
defending such Litigation Challenge and may, in its sole discretion, elect to be represented by the
legal counsel of its choice; (b) City may, in its sole discretion, elect to be separately represented
24
by the legal counsel of its choice in any such action or proceeding with the reasonable costs of
such representation to be paid by Developer; ( c) Developer shall reimburse City, within ten (10)
business days following City's w1itten demand therefor, which may be made from time to time
dming the course of such litigation , all reasonable costs incun-ed by City in connection with the
Litigation Challenge, including City's administrative, legal, and court costs and City Attorney
oversight expenses ; and ( d) Developer shall indemnify, defend, and hold hannless City Pa1iies
from and against any damages, attorneys' fees or cost awards, including attorneys' fees awarded
under Code of C iv il Procedure section 1021.5, assessed or awarded against City by way of
judgment, settlement, or stipulation. Any proposed settlement of a Litigation Challenge shall be
subject to City's approval not to be unreasonably withheld, conditioned or delayed. If the tenns
of the proposed settlement would constitute an amendment or modification of this Agreement or
any Project Approv als, the settlement shall not become effective unless such amendment or
modification is approved by City in accordance with Applicable Law, and City reserves its full
legislative discretion with respect thereto . If Developer opts not to contest or defend such
Litigation Challenge, City shall have no obligation to do so.
ARTICLE 10
ASSIGNMENT, TRANSFER AND NOTICE
10.1 Assigmnent Because of the necessity to coordinate development of the entirety
of th e Property pursuant to plans for the Project, pmiicularly with respect to the provision of on-
and off-site public improvements and public services and benefits , certain restrictions on the
right of Developer to ass ign or transfer its interest und er this Agreement with respect to the
Property, or any portion thereof, are necessary in order to assure the achievement of the goals,
objectives and public benefits of the Project and this Agreement. Developer agrees to and
accepts the restrictions set forth in this Section 10.1 as reasonable and as a mate1ial inducement
to City to enter into this Agreement. Developer shall have the right to sell or transfer its fee
interest, or ground lease its interests in the Prope1iy, in whole or in part (provided that no such
pmiial transfer shall vio l ate the provisions of the Subdivision Map Act) to any person,
partnership,joint venture, finn , company, corporation or other entity (any of the foregoing, an
"Assignee") subject to the w1itten consent of City, which shall not be unreasonably withheld,
delayed or conditioned, provided that Developer may assign its 1ights under this Agreement
without the consent of City to any corporation, limited liability company, paiinership or other
entity which is controlling of, controlled by, or under c01m11on control with Developer, and
"control," for purposes of this definition, means effective management and control of the other
entity, subject only to major events requi1ing the consent or approval of the other owners of such
entity ("Affiliated Party"). City's written consent, as required above, shall be provided by City
within thi1iy (30) days of City's receipt of the notice provided in Section 10.1.2 below, if
Developer has satisfied all of the following conditions:
10.1 .1 No Default. Developer is not in Default under this Agreement or the
Assignee agrees to cure any Default;
10.1.2 :t:Jotice. Developer shall provide the City with written notice of any
proposed transfer or assigmnent of Developer's rights or obligations hereunder (each, an
"Assignment") at least thirty (30) days prior to such Assignment. Each such notice of proposed
Assigmnent shall be accompanied by evidence of Assignee's assumption of Developer's
25
obligations hereunder in the fonn of Exhibit H , which shall be recorded in the Official Records
of Santa Clara County; and
10 .1.3 _paymept of Costs . Developer shall pay the actual costs borne by City in
connection with its review of the proposed Assignment, including the costs incmTed by the City
Attorney's office .
Assignee shall succeed to the rights, duties and obligations of Developer only with respect to the
parcel or parcels, or portion of the Property so purchased, transfen-ed, ground leased or assigned ,
. and Developer shall continue to be obligated under this Agreement with respect to any remaining
portions of the Prope1iy retained by Developer and not assigned .
10.2 Release of Transferring Developer. Except with respect to a pennitted transfer
and assignment to an Affiliated Party, notwithstanding any sale, transfer or assigmnent of all or a
portion of the Property, Developer shall continue to be obligated under this Agreement as to all
or the portion of the Property so transfen-ed unless City has consented to the assigmnent as
provided above .
10.3 i\.ss~un.ent to Financial Institut_ions or Mortgagee. Notwithstanding any other
provisions of this Agreement, Developer may assign all or any part of its rights and duties under
this Agreement to any financial institution or Mo1igagee from which Developer has bon-owed
funds for use in constructing the Project or otherwise developing the Prope1iy and such financing
shall not require consent from City. Developer shall provide a copy of the deed of trust and
notice of any such financing assigmnent to City within ten (10) business days following
execution thereof.
In addition, nothing contained in this Agreement shall prevent a transfer or assigmnent of the
Prope1iy, or any portion thereof, to a financial institution or Mo1igagee as a result of a
foreclosure of a Mmigage or deed in lieu of foreclosure, and any lender or Mmigagee acquiring
the Property, or any portio11 thereof, as a result of foreclosure or a deed in lieu of foreclosure
shall take such Prope1iy subject to the tenns of this Agreement; provided, however, in no event
shall such lender or Mo1igagee be liable for any Default of Developer arising p1ior to acquisition
of title to the Prope1iy by such lender or Mortgagee ( other than continuing Defaults for which
Mo1igagee shall be liable); and provided further in no event shall any lender or Mortgagee or its
successors or assigns be entitled to a building pe1mit or occupancy certificate for any po1iion of
the Project until all outstanding obligations of Developer have been perfom1ed , and until any and
all outstanding Defaults have been cured.
10.4 Successive Assignment. In the event there is more than one Assigm11ent under
the provisions of this Article 10, the provisions of this Article 10 shall apply to each successive
Assigmnent and Assignee .
ARTICLE 11
MORTGAGEE PROTECTION
11 .1 Mortgagee Protection. Neither ente1ing into this Agreement nor a breach hereof
shall defeat , render inva lid , diminish or impair the lien of any Mmigage made in good faith and
for value. Nothing in this Agreement shall prevent or limit Developer, at its sole discretion, from
26
granting one or more Mortgages encumbering all or a p01iion of Develop er's interest in the
Property or portion thereof or improvement thereon as security for one or more loans or other
financing , but all of the tenns and conditions contained in this Agreement shall be binding upon
and effective against and shall run to the benefit of M01igagee who acquires title or possession to
the Property, or any portion thereof, by foreclosure , trustee's sale, deed in lieu of foreclosure or
othe1wise. Developer shall provide City with a copy of the deed of trust or mortgage within ten
(10) days after its recording in the offici al records of Santa Clara County; provided , however,
that Developer's failure to provide such document shall not affect any Mortgage, including
without limitation, the validity, p1iority or enforceability of such Mo1igage .
11.2 Mortgagee Not Obligated. No Mortgagee (including one who acquires title or
possession to the Prope1iy, or any p01iion thereof, by foreclosure, trustee's sale , deed in lieu of
foreclosure or othe1wise) shall have any obligation to construct or complete construction of
improvements, or to guarantee such construction or completion; provided , however, that a
Mortgagee shall not be entitled to devote the Property to any use except in full compliance with
this Agreement and the other Project Approvals nor to construct any improvements thereon or
institute any uses other than those uses or improvements provided for or authorized by this
Agreement, or otherwise under the Project Approvals. Except as otherwise provided in this
Section 11.2, all of the tenns and conditions contained in this Agreement, the other Project
Approvals , the Agreement to be Recorded, School District Agreement, and the Affordable
Housing Agreement, shall be binding upon and effective against and shall run to the benefit of
any person or entity, including any M01igagee, who acquires title or possession to the Prope1iy,
or any p01iion thereof.
11 .3 Notice of Default to Mo1igagee. If City receives a notice from a M01igagee
r equesting a copy of any Notice of Default given Developer hereunder and specifying the
address for service thereof, then City agrees to use its diligent, good faith efforts to deliver to
such M01igagee, concmrently with service thereon to Developer, any Notice of Default given to
Developer. Each Mo1igagee shall have the right dming the same period available to Developer
to cure or remedy, or to c01runence to cure or remedy, the event of Default claimed or the areas
of noncompliance set forth in City's Notice of Default. If a M01igagee is required to obtain
possession in order to cure any Default, the time to cure shall be tolled so long as the Mortgagee
is attempting to obtain possession, including by appointment of a receiver or foreclosure, but in
no event may this period exceed 120 days from the date the City delivers the Notice of Default to
Developer.
11.4 No Supersedure. Nothing in A1iicle 11 shall be deemed to supersede or release a
M01igagee or modify a Mortgagee's obligations under any subdivision or public improvement
agreement or other obligation incurred with respect to the Project outside this Agreement, nor
shall any provision of this Section 11.4 constitute an obligation of City to such Mortgagee,
except as to the notice requirements of Article 11.
11 .5 _Mortgagee Requested Amendments. The Paiiies agree that they will make
reasonab le amendments to this Agreement, at the expense of Developer, to meet the
r equ irements of any lender or Mortgagee for the Project. For the purposes of this Section 11 .5, a
reasonable amendment is one that does not relieve Developer of any of its material obligations
under this Agreement or impair the ability of the City to enforce the te1111s of this Agreement.
27
The Parties further agree that any reasonable amendments to the Mortgagee Protection
provisions of this Agreement required to confonn to cmrnnt industry practice would qualify as a
Minor Amendment and may be processed in accordance with the provisions of Article 8 of this
Agreement.
ARTICLE 12
DEFAULT; REMEDIES; TERMINATION
12.1 Breach and Default. Subject to a Pem1itted Delay in Section 13.4 or a mutual
extension pursuant to Section 13 .11, except as otherwise provided by this Agreement, breach of,
, failure , or delay by either Party to perfonn any tenn or condition of this Agreement shall
. constitute a "Default." In the event of any alleged Default of any tenn, condition, or obligation
of this Agreement, the Party alleging such Default shall give the defaulting Party notice in
writing specifying the nature of the alleged Default and the maimer in which the Default may be
satisfactorily cured ("Notice of Breach"). The defaulting Party shall cure the Default within
thirty (30) days following receipt of the Notice of Breach, provided, however, if the nature of the
alleged Default is non-monetary and such that it caimot reasonably be cured within such thi1iy
(30) day period, then the commencement of the cure within such time period , and the diligent
prosecution to completion of the cure thereafter, shall be deemed to be a cure, provided that if
the cure is not diligently prosecuted to completion, then no additional cure period shall be
provided. If the alleged failure is cured within the time provided above, then no Default shall
exist and the noticing Party shall take no further action to exercise any remedies available
hereunder. If the alleged failure is not cured, then a Default shall exist under this Agreement and
the non-defaulting Party may exercise any of the remedies available under this Agreement.
12.2 Withholding of Pe1111its. In the event of a Default by Developer, or following
Notice of Breach to Developer pursuant to Section 12.1 above and during the cure period
· prov ided therein, upon a finding by the City Manager that Developer is in breach, City shall hav e
the right to refuse to issue any pennit or other Subsequent Approvals to which Developer would
otherwis e have been entitled pursuant to this Agreement until such Default or breach is cured.
This provision is in addition to and shall not limit any actions that City may take to enforce the
conditions of the Project Approvals.
12.3 Tem1ination . In the event of a Default by a Party, the non-defaulting Paiiy shall
have the 1ight to te1minate this Agreement upon giving notice of intent to tenninate pursuant to
Govenunent Code section 65868 and regulations of City implementing such section. Following
notic~ of intent to tenninate, the matter shall be scheduled for consideration and review in the
maimer set forih in Govenm1ent Code section 65867 and City regulations implementing said
section. Following consideration of the evidence presented in said review before the City
Council, a Party alleging Default by the other Party may give written notice of tennination of
this Agreement to the other Party. Tennination of this Agreement shall be subject to the
provisions of Section 12 .9 hereof.
12.4 Specific Perfonnance for Violation of a Condition. If City issues a Project
Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by
Dev eloper in the future , and if Dev eloper then fails to satisfy such condition, City shall be
entitled to specific performance for the purpose of causing Developer to satisfy such condition.
28
12.5 Legal Ac!ions.
12 .5 .1 .Institution of Legal Actions. In addition to any other rights or remedies , a
Pmty may institute legal action to cure, correct or remedy any Default, to enforce any covenants
or agree111ents herein, to enjoin any threatened or attempted violation thereof, or to obtain any
oth er remedies consistent with the purpose of this Agreement. Any such legal action shall be
brought in the Superior Comi for Santa Clara County, California, except for actions that include
claims in which the Federal Dishict Court for the Northern District of the State of California has
original jmisdiction, in w hich case the Northern District of the State of California shall be the
proper venue.
12 .5.2 Acceptance of Service of Process. In the event that any legal action is
commenced by Developer against City, service of process on City shall be made by personal
service upon the City Clerk of City or in such other manner as may be provided by law . In the
event that any legal action is commenced by City against Developer, service of process on
Developer shall be made by personal service upon Developer's General Counsel, Developer's
registered agent for service of process, or in such other manner as may be provided by law.
12.6 Rights a_Qd Remedies Are CurIJ.ulativ~. The rights and remedies of the Parties are
cumulative, and the exercise by a Party of one or more of such rights or remedies shall not
preclude the exercis e b y it, at the same or different times, of any other rights or remedies for the
same Default or any other Default by the other Party, except as otherwise expressly provided
I • ,1 erem .
12.7 ~Q_Damages. In no ev ent shall a Party, or its boar d s , commissions, officers,
agents or employees, be liable in damages for any Default under this Agreement, it being
expressly und er s too d and agre~d that the sole legal remedy available to a Party for a breach or
violation of this Agreement by the other Party shall be an action in mandamus, specific
perfonnance or other injuncti v e or declaratory relief to enforce the provisions of this Agreement
by the other Party, or to tenninate this Agreement. This limitation on damages shall not preclude
actions by a Party to enforce payments of monies or fees or the perfonnance of obligations
requi1ing an obligation of money from the other Party under the tenns of this Agreement
including, but not limited to, obligations to pay attorneys' fees and obligations to advance
monies or reimburse monies . In connection with the foregoing provisions, each Paiiy
acknowledges, wanants and represents that it has been fully infonned wi th respect to, and
represented by counsel of such Party's choice in connection with, the 1ights and remedies of such
Paiiy hereunder an d the waivers herein contained, and after such advice and consultation has
presently and actually intended, with full knowledge of such Paiiy's 1ights and remedies
otherwise available at law or in equity, to waive and relinquish such rights and remedies to the
extent specified herein, and to rely to the extent herein specified solely on the remedies provided
for herein with respect to any breach of this Agreement by the other Party.
12.8 Resolution of Disputes . With regard to any dispute involving the Project, the
resolution of which is not provided for by this Agreement or Applicable Law, a Paiiy shall, at the
request of another Paiiy, meet with designated representatives of the requesting Party promptly
following its request. The Parties to any such meetings shall attempt in good faith to resolve any
such disputes . Nothing in this Section 12 .8 shall in any way be interpreted as requi1ing that
2 9
Developer, City and/or City's designee reach agreement with regard to those matters being
addressed, nor shall the outcome of these meetings be binding in any way on City or Developer
unless expressly agreed to in writing by the Paiiies to such meetings.
12.9 Surviving Provisions. In the event this Agreement is tenninated , neither Paiiy
shall have ai1y further rights or obligations hereunder, except for those obligations of Developer
set forth in Section 9 .2 and Section 9 .3.
ARTICLE 13
GENERAL PROVISIONS
13 .1 Condemnation. As used herein, "Material Condemnation" means a
condemnation of all or a portion of the Prope1iy that will have the effect of mate1ially impeding
or preventing development of the Project in accordance with this Agreement and the Project
· Approvals . In the event of a Material Condemnation, Developer may (a) request the City to
am.end this Agreement in accordance with the Development Agreement Statute and/or to amend
the Project Approvals; (b) decide, in its sole discretion, to challenge the condemnation; or
(c) request that City agree to tenninate this Agreement by mutual agreement, which agreement
shall not be unreasonably withheld, by giving a written request for tennination to the City. If the
· condemnation is not a Material Condemnation, Developer shall have no 1ight to request
tennination of this Agreement pursuant to this Section 13.1. Nothing in this Agreement shall be
deemed, or deemed to be, any waiver or release by Developer of any compensation or damages
awarded pursuant to a Mate1ial Condemnation.
13.2 Covenants Binding on Successors and Assigns and Run with Land. Except as
otherwise more specifically provided in this Agreement, this Agreement and all of its prov isions ,
rights, powers, standards, tenns, covenants and obligations , shall be binding upon the Parties and
their respective successors (by merger, consolidation, or otherwise) and assigns, and all other
persons or entities acquiring the Prope1iy, or any interest therein, and shall inure to the benefit of
the Paiiies and their respective successors and assigns, as provided in Govenunent Code section
65868 .5 .
13 .3 Notice. Any notice, demand or request which may be pennitted, required or
desired to be given in connection herewith shall be given in writing and directed to the City and
Developer as follows:
If to City:
with a copy to:
City Clerk
City of Cupe1iino
10300 ToITe A venue
Cupe1iino , CA 95014 -3202
Telephone: ( 408)777-3200
City Attorney
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
Telephone : ( 408)777-3200
30
and:
If to Maiina Plaza,
LLC:
with a copy to
If to Cupe1iino
10145, LLC:
with a copy to
City Manager
City of Cupertino
10300 Ton-e A venue
Cupertino, CA 95014-3202
Telephone: ( 408)777-3200
Albert Wang
Maiina Plaza, LLC.
4546 El Camino Real, Suite 222
Los Altos, CA 94022
Samuel A. Chuck
Rossi , Hamerslough, Reischl & Chuck, PLC
1960 The Alameda, Suite 200
San Jose, CA 95126
Albert Wang
C upertino 10145 , LLC.
4546 El Camino Real, Suite 222
Los Altos, CA 94022
Samuel A. Chuck
Rossi , Hamerslough, Reischl & Chuck, PLC
1960 The Alameda, Suite 200
San Jose, CA 95i26
Notices to be deemed effective if delivered by ce1iified mail, return receipt requested, or
commercial courier, with delivery to be effective upon verification ofreceipt. Any Party may
change its respective address for notices by providing written notice of such change to the other
Paiiy.
13.4 Permitted Delays. Perfonnance by either of the Parties of an obligation hereunder
shall be excused dming any pe1iod of "Permitted Delay." Pennitted Delay shall mean delay
beyond the reasonable control of a Paiiy including, without limitation, an inability to perfonn
caused by (a) calamities, including without limitation eaiihquakes, floods, and fire; (b) civ il
commotion; ( c) riots or ten-orist acts; ( d) strikes or other fonns of material labor disputes; ( e)
shmiages of mate1ials or supplies; or (f) vandalism. A Party's financial inability .to perfonn or
obtain financing or adverse economic conditions generally shall not be grounds for claiming a
Pennitted Delay. The Paiiy claiming a Permitted Delay shall notify the other Paiiy of its intent
to claim a Pennitted Delay, the specific grounds of the same and the anticipated period of the
Pennitted Delay within thirty (30) days after the occmrence of the conditions which establish the
grounds for the claim . If notice by the Party claiming such extension is sent to the other Paiiy
more than thi1iy (30) days after the commencement of the cause, the pe1iod shall c01m11ence to
run only thi1iy (3 0) days p1ior to the giving of such notice. The period of Pennitted Delay shall
31
last no longer than the conditions preventing perfonnance. In no event shall any Pennitted Delay
extend the Tenn of this Agreement.
13.5 Counterparis . This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original , but all of which together shall constih1te one and the same
instrument.
13.6 Waivers. Notwithstanding any other provision in this Agreement, any failures or
delays by either Party in asseriing any of its rights and remedies under this Agreement shall not
operate as a waiver of any such rights or remedies, or deprive such Party of its right to institute
and maintain any actions or proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies . A Pariy may specifically and expressly waive in writing
any condition or breach of this Agreement by the other Party, but no such waiver shall constitute
a further or continuing waiver of any preceding or succeeding breach of the same or any other
provision. Consent by one Pariy to any act by the other Pariy shall not be deemed to imply
consent or waiver of the necessity of obtaining such consent for the same or similar acts in the
future .
13.7 Construction of Agreement. All Pariies have been represented by counsel in the
preparation and negotiation of this Agreement, and this Agreement shall be construed according
to the fair meaning of its language. The rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not be employed in interpreting this Agreement.
Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be
deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be
deemed to include the others; (c) "shall ," "will," or "agrees" are mandatory, and "may" is
pem1issive; (d) "or" is not exclusive; (e) "includes " and "including" are not limiting; and
(f) "days" means calendar days unless specifically provided otherwise.
13.8 Headings . Section headings in this Agreement are for convenience only and are
not intended to be used in interpreting or construing the tenns, covenants, or conditions of this
Agreement.
13 .9 Severability. If any tenn or provision of this Agreement, or the application of any
tenn or provision of this Agreement to a specific situation, is found to be invalid or
unenforceable, in whole or in pari for any reason, the remaining tenns and provisions of this
Agreement shall continue in full force and effect unless an essential purpose of this Agreement
would be defeated by loss of the invalid or unenforceable provisions, in which case any Party
may tenninate this Agreement by providing written notice thereof to the other Pariy.
13 .10 Time is of the Essence. Time is of the essence of this Agreement. All references
to time in this Agreement shall refer to the time in effect in the State of California.
13 .11 Extension of Time Limits. The time limits set forth in this Agreement may be
extended by mutual consent in writing of the Pariies in accordance with the provisions of this
Agreement.
13.12 Other Necessary Acts. Each Pariy shall execute and deliver to the other all such
furiher instruments and documents as may be reasonably necessary to caITy out the Project
32
Approvals and this Agreement and to provide and secure to the other Party the full and complete
enjoyment of its 1ights and p1ivileges under this Agreement.
13 .13 .S.imatures. The individuals executing this Agreement represent and wan-ant that
they have the right, power, legal capacity, and auth01ity to enter into and to execute this
Agreement on behalf of the respective legal entities of Developer and the City.
13.14 Entire Agreement. This Agreement (including all Recitals, exhibits attached
hereto, each of which is fully incorporated herein by reference), integrates all of the tenns and
conditions mentioned herein or incidental hereto, and constitutes the entire understanding of the
Patties with respect to the subject matter hereof, and all p1ior or contemporaneous oral
agreements, understandings, representations and statements, and all prior w1itten agreements,
understandings, representations, and statements are tenninated and superseded by this
Agreement.
13.15 Estoppel Certificate. Developer or its lender may, at any time, and from time to
time, deliver written notice to the City requesting the City to ce1tify in writing (a) that this
Agreement is in full force and effect; (b) that this Agreement has not been amended or modified
or, if so amended or modified, identifying the amendments or modifications; ( c) that Developer
is not in Default of the perfonnance of its obligations, or if in Default, to desc1ibe therein the
nature and extent of any such Defaults; ( d) those obligations under this Agreement have been
satisfied since the date of the last Ammal Review and those obligations under this Agreement
that remain unsatisfied; and ( e) such other infonnation or matters relating to this Agreement
and /or the Project as may be reasonably requested by Developer. Developer shall pay, within
thirty (30) days following receipt of City's invoice, the actual costs borne by City in connection
with its review of the proposed estoppel ce1tificate, including the costs expended by the City
Attorney's office in connection therewith . The City Manager shall be authorized to execute any
certificate requested by Developer hereunder. The fonn of estoppel certificate shall be in a fonn
reasonably acceptable to the City Attorney. The City Manager shall execute and return such
certificate within thi1ty (30) days following Developer's request therefor. Developer and City
acknowledge that a certificate hereunder may be relied upon by tenants, transferees, investors,
paitners, bond counsel, underwriters, bond holders and M01igagees . The request shall clearly
indicate that failure of the City to respond within the thirty-day period will lead to a second and
final request. Failure to respond to the second and final request within fifteen (15) days of
receipt thereof shall be deemed approval of the estoppel certificate.
13.16 Recordation ofTennination. Upon completion of the Project and Developer's
payment of all Impact Fees under Article 4 and other payments under Article 5 and recordation
of the Affordable Housing Agreement and Agreement to be Recorded, or upon any earlier
tern1ination of this Agreement upon the mutual written consent of the Parties or as otherwise
expressly provided herein, a w1itten statement acknowledging Developer's satisfaction of all
obligations under this Agreement or such te1mination, in fonn and content reasonably
satisfactory to the Parties , shall be executed by the Parties, and shall be recorded by City or
Developer in the Official Records of Santa Clara County.
33
13 .17 City Approvals and Actions. Whenever a reference is made herein to an action or
approval to be undertaken by City, the City Manager or his or her designee is authorized to act
on behalf of City, unless specifically provided otherwise or the context requires otherwise.
13 .18 Negation of Partnership. The Parties specifically acknowledge that the Project is
a private development, that no Party to this Agreement is acting as the agent of any other in any
respect hereunder, and that each Paiiy is an independent contracting entity with respect to the
terms, covenants and conditions contained in this Agreement. None of the tenns or provisions of
this Agreement shall be deemed to create a paiinership between or among the Paiiies in the
businesses of Developer, the affairs of the City, or otherwise, or cause them to be considered
joint venturers or members of any joint enterprise.
13 .19 No Third Party Beneficiaiies. This Agreement is made and entered into for the
sole protection and benefit of the signatory Parties and their successors and assigns, including
Mortgagees. No other person shall have any right of action based upon any provision in this
Agreement.
13.20 Governing State Law . This Agreement shall be construed in accordance with the
laws of the State of California, without reference to its choice of law provisions .
13 .2 1 Joint and Several Liab ili!y. Except as .other.wise expressly provided herein, if
Developer consists of more than one p erson or entity, then the obligations of each such person
and/or entity shall be joint and several.
13.22 Exhibits. The following exhibits are attached to this Agreement and are hereby
incorporated herein by this reference for all purposes as if set fo1ih herein in full:
Exhibit A: Property Desc1iption
Exhibit B: Site Map
Exhibit C: · Affordable Housing Agreement
Exhibit D: Existing Impact Fees
Exhibit E: Transp01iation Impact Fee Fonnula
Exhibit F: Agreement to be Recorded
Exhibit G: Amrnal Review Forn1
Exhibit H: Fonn of Assigmnent and Assumption Agreement
If the recorder refuses to record any exhibit, the City Clerk may replace it with a
single sheet bearing the exhibit identification letter, stating the title of the exhibit, the reason it is
not being recorded, and that the 01iginal, ce1iified by the City Clerk, is in the possession of the
City Clerk and will be reattached to the original when it is returned by the recorder to the City
Clerk.
34
IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of
the Effective Date.
CITY:
By:
ATTEST:
al corporation
David Brandt, City Manager
/Signature must be notarized/
By: {sa,tL~-~J.f ID · St -lb
Grace Schmidt, City Clerk
APPROVED AS TO FORM:
~ ---------. --------
~h Stevenson Hom, City
.Attorney
DEVELOPER:
CUPERTINO 10145, LLC, a California limited
liability company '==
By A~~
/Signatures must be notarized/
AND
MARINA PLAZA, LLC, a California limited
liability company
By:
A
35
De Anza Venture, LLC, a California limited liability company, the
applicant ofrecord and the intended developer for the Project hereby
consents to the tern1s described in the Agreement.
DE ANZA VENTURE, LLC,
a California limited liability company
By:
Al
36
[
A nota ry public or other offi cer co mpl eting thi s certifi ca te verifi es onl y the id entity of th e indi vidual who signed
the document to whi ch thi s ce1tifi cate is attac hed , and not th e truthfulnes s, acc ura cy, or va lid ity of that docum ent.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
On Od-, /:1 1 '2.A:> I C.
Date
, before me, kr't-s-1-~,., /!-e-i~ S--'Lvetr c,;;. . N o~t fu I. t,·f:.
Name And Title Of 'officer (e,g."Jane oe, Notary Public"/
personally appeared f} 16 ~t We..,u;
""Name of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person~ whose name~ Elare subscribed to the
within instrument and acknowledged to me that .b.§L_she/they
executed the same in his/her/their authorized capacity~,
and that by his/her/theirsignaturekS') on the instrument the
person~, orthe entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
~~/4 ~ ~ Signatureo~
OPTIONAL
Though this section is optio nal , completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Si gner's Name:
D Individual
D Corporate Officer
Titl e(s)
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
D Guardian/Conservator
D Other :
Signer is representing :
Na m e Of Person (s) Or Enti ty(ies )
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
Number Of Pages
Date Of Document
Signer(s ) Oth er Th a n Nam ed Abo ve
Acknowledgments
A notary public or other officer comp leting this certificate verifi es only the identity of the individual who signed
the document to which this certificate is attached , and not the trnthfulness , accuracy , or val id ity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
)
)
On {!}c,..+ .. l.,.r ( 8 '-" (C, , before me, .K>s+e,., f<_t.-1-11!'.i!' S-2 ., ... /c...i,., 1 No+.o..r 'i p.., i, lie.. ,
__..c... ____ D_a_te-+/.....c....--'-"'c---Name And Title ottifficer (e.g. "Jane Doe , Notary Public"i
personally appeared
KIRSTEN RENEE SQUARCIA
Commission # 2080884 r < "•• Notary Public -California z Zt · > z · Santa Clara County ~ t ;~ ,· • ,MJ 8ofT·Jx£i~s.°;'J,J~1~l
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(fe? whose narney0 ~/are subscribed to the
within instrument and acknowledged to me that .!}§she/they
executed the same in _bis/her/their authorized capacity(j,es),
and that by ..!Jj§/her/their signature(.s? on the instrument the
person(s-1, or the entity upon behalf of which the person,(.S')
acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
OPTIONAL
Th ou gh this section is optional, completing this information can deter alternation of the document or fraudulent
rea ttachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
S igner's Name:
D Individual
D Corporate Officer
Titl e(s)
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
0 Guardian /Conservator
D Other :
Signer is representing :
Name Of Person(s) Or Entity(ies)
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
Titl e o r Type of Docume nt
Number Of Pages
Date Of Document
Signer(s) Other Th a n Named Above
Ackn owledgments
~-----------
A notary public or other officer compl eting this ce1iificate verifies on ly the identit y of the ind ividual who signed
the document to which this certificate is attached , and not the truthfu ln ess, accuracy, or va lidity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
On -------------, before me, --------------------' Date
personally appeared
Name And Title Of Officer (e.g. "Jane Doe, Notary Publ ic")
Name of Signer(s)
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 PENAL TY 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 Pu blic
OPTIONAL
T hough this section is optional , completing this information can deter alternation of the document or fraudulent
reatta chment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name :
D Individual
[] Corporate Officer
Titl e(s)
0 Partner(s)
0 Attorney-ln--F act
D Trustee(s)
0 Guardian/Conservator
D Other:
Signer is rep resent ing :
Na me Of Person (s) O r Entity(ies)
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
Titl e or Type of Do cume nt
Number Of Pages
Date Of Document
Signer(s) Oth er Than Named Above
Acknowledgme nt s
A notary public or other officer comp leting this ce1iificate verifies only the identity of th e indi vi dual who s igne d
the document to which thi s certificate is attached, and not the truthfulness, accurac y, or va lidit y of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
)
)
On-----·------' before me, _____________________ ,
Date Name And Title Of Officer (e.g . "Jane Doe , Notary Public")
personally appeared ____________________________ _
Name of Signer(s)
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 PENAL TY 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
OPTIONAL
Though this section is optional , completing this information can deter alternation of the document or fraudulent
rea ttachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name :
D Ind ivid ual
D Corporate Officer
T itle(s)
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
D Guardian/Conservator
D Other :
Signer is representing:
Name Of Person (s) Or En tity(ies)
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
Titl e or Type of Document
Number Of Pa ges
Date Of Document
Signer(s) Other Than Named Above
Acknowledgments
EXHIBIT A-1
HOTEL PARCEL DESCRIPTION
10145 NORTH DE ANZA BOULEY ARD (APN 326-034-043)
All that certain Real Property in the City of Cupertino , County of Santa Clara, State of
California, described as follows:
PARCEL ONE:
LOT 1, AS SHOWN ON THAT CERTAIN MAP ENTITLED , "TRACT NO. 5162", WHICH
MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY
OF SANTA CLARA, STATE OF CALIFORNIA, ON MAY 2, 1972, IN BOOK 300 OF MAPS
AT PAGES 26 AND 27.
PARCEL TWO:
AN EASEMENT FOR INGRESS AND EGRESS OVER A STRIP OF LAND 14.50 FEET IN
WIDTH THE EASTERLY AND NORTHERLY LINES OF WHICH ARE MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF THE ABOVE DESCRIBED LOT;
THENCE FROM SAID POINT OF BEGINNING AND ALONG THE GENERAL WESTERLY
BOUNDARY LINE OF SAID LOT NORTH 0°01 '04" WEST, 142.71 FEET AND SOUTH
89 °58'56" WEST, 27.00 FEET AND THE TERMINUS OF THE LINES DESCRIBED
HEREIN.
Exhibit A
EXHIBIT A-2
RESIDENTIAL PARCEL DESCRIPTION
10118-10122 BANDLEY DRIVE (APN 326-34-066)
All that ce1iain Real Property in the City of Cupertino , County of Santa Clara, State of
California, described as follows:
PARCEL ONE
ALL OF PARCEL "A" AS SHOWN UPON THAT CERTAIN MAP ENTITLED , "PARCEL
MAP BEING A PORTION OF NW¼ OF SECTION 13 , T. 7S ., R . 1 W ., M .D.B .& M .",
WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA , ON FEBRUARY 15 , 1978 IN
BOOK 412 OF MAPS , AT PAGE 50.
PARCEL TWO:
AN EASEMENT FOR THE PURPOSE OF VEHICULAR AND PEDESTRIAN INGRESS
AND EGRESS , AS CONVEYED BY THAT CERTAIN GRANT OF EAS EMENT
RECORDED JULY 17 , 1981 IN BOOK G221 , PAGE 162, AND BY COVENANT
REGARDING EASEMENT RECORDED JULY 17 , 1981 IN BOOK G221 , PAGE 184 ,
OFFICIAL RECORDS , BEING MORE PA RTI CULARLY DESCRIBED AS FOLLOWS:
THE SOUTHERLY 27 FEET OF PARCEL "B" AS SAID PARCEL "B" IS SHOWN UPON
THAT CERTAIN PARCEL MAP RECORDED IN BOOK 412 OF MAPS , AT PAGE 50 ,
SANTA CLARA COUNTY RECORDS.
PARCEL THREE:
RECIPROCAL EASEMENTS AS DESCRIBED IN THAT CERTAIN "RECIPROCAL
EASEMENT AGREEMENT" EXECUTED BY NOR CAL AS SOCIA TES, A CALIFORNIA
PARTNERSHIP AND COAST FEDERAL SAVINGS AND LOAN ASSOCIATION, A
UNITED STATES CORPORATION , RECORDED JULY 18 , 1979 IN BOOK E648 , PAGE 568
AND BY THAT CERTAIN "DECLARATION OF ESTABLISHMENT OF COVENANTS ,
CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENTS" RECORDED
AUGUST 22, 1979 IN BOOK E742 , PAGE 703 AND AS AMENDED BY DOCUMENT
RECORDED APRIL 15 , 1980 IN BOOK F272, PAGE 71 , OF OFFICIAL RECORDS .
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EXHIBIT C
AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Cupe1iino
10300 To1Te Avenue
Cupe1iino, CA 95014
Attn.: City Manager
No fee for recording pursuant to
Government Code Section 27383
(Space above for Recorder's Use)
AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS
This AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS ("A_greement") is entered into as of this 20th day of October 2016
("Effectiv~ate") by and between the CITY OF CUPERTINO, a municipal corporation (the
"City"), and MARINA PLAZA, LLC , a California limited liability company (the "Developer"),
(individually a "faiiy" and together the "Parties"), with reference to the following facts:
A. Developer is the owner of that certain real property commonly known as 10118-
10122 Bandley Diive (APN 326-34-066) in Cupertino, California (the "Property") more
particularly described and depicted in Attachment 1 attached to this Agreement and incorporated
by this reference. The Prope1iy, together with that certain real prope1iy c01mnonly known as
10145 North De Anza Boulevard (APN 326 -34-043) ("Hotel Parcel") owned by Cupe1iino
10145 LLC, a California limited liability company ("Cupe1iino 10145"), comprise the ".Site."
B. The Site is the subject of a Development Agreement (DA-2016-01) (the
"Development Agreement") concerning the redevelopment of the existing c01mnercial buildings
on the Site with two mixed-use buildings containing 188 dwelling units , approximately 22,600
square feet of c01mnercial space on the Property as well as a 122-room full service neighborhood
business hotel on the Hotel Parcel, and associated facilities and infrastructure ( collectively the
"Project"). On September 6, 2016, De Anza Venture LLC , a two member California limited
liability company whose members consist of Developer and Cupe1iino 10145 ("De Anza
Venture"), received discretionary approvals from the City for the Project, including a
Development Pe1mit (DP-2015-05), an Architectural and Site Approval Pern1it (ASA-2015-22),
a Use Pennit (U-2015-06), a Tree Removal Pennit (TR-2016-14), an exception to the Heart of
the City Specific Plan for a setback (EXC-2016-03), a Fence Exception (EXC-2016-05), and the
Development Agreement ( collectively, the "Project Approvals"). Cupe1iino 10145 and
Developer intend to transfer their respective interests in the Site, and concmTently assign their
Exhibit C.-1
respective rights and obligations under the Development Agreement, to De Anza Venture, who
will develop the Project on the Site.
C. Cupertino Municipal Code Chapter 19.56 codifies the City's density bonus
ordinance, which the City adopted to confonn to State Density Bonus Law (Govermnent Code
Section 65915 -65918) (together "D ensity Bonus Law"). Density Bonus Law allows a density
bonus, concessions, and other regulatory incentives when a developer proposes to provide rental
housing affordable to Very Low Income Households.
D. As paii of the Project, Developer has sought and agreed to construct sixteen (16)
dwelling units (11 % of the total 139 dwelling units otherwise pennitted in the Project) to be
affordable and rented to Very Low Income Households (the "Very Low Income Units") for the
Tem1 as defined below. Under Density Bonus Law, Developer has applied for, and the City has
granted, the following modifications to its usual development standards in exchange for the
Developer's provision of the Very Low Income Units:
1. A density bonus of thirty-five percent (35%), or fmiy-nine ( 49) additional
· dwelling units (the "Density Bonus").
2. A reduction in parking otherwise required for the Very Low Income Units to
prov ide one parking space per one-bedroom unit rather than two parking spaces
(the "Parking Modification"}. The Density Bonus and Parking Modification are
collectively "Density13onus Inc~ntives."
E. · Density Bonus Law requires the City to ensure, and the Developer to agree to ,
continued affordability of the Very Low Income Units. To ensure their continued affordability
for the Tenn, this Agreement shall be executed and recorded against the Property prior to the
recordation of any parcel map or final subdivision map or issuance of building pennits for the
Project, whichever occurs first.
F. In consideration of the valuable land use and economic benefits conferred by the
City upon the Prope1iy under Density Bonus Law, Developer, for itself, its successors, heirs,
grantees and assigns, hereby desires through this Agreement to comply with the requirements of
Density Bonus Law as applied to the Prope1iy.
G. In addition, as a material consideration for the long tenn assurances, vested tights,
and other City obligations provided by the Development Agreement and as a material
inducement to City to enter into the Development Agreement, Developer offered and agreed to
ce1iain tenns as specified in the Development Agreement. Section 3.12 of the Development
Agreement specifies, among other provisions , that the Developer shall provide the sixteen (16)
Very Low Income Units in the Project plus an additional two (2) dwelling unit to be affordable
and rented to Moderate Income Households (the "Moderate Income Units") for the Tenn and
that the Parties shall enter into and record this Agreement p1ior to or concurrently with the
recordation of the Development Agreement. Collectively, the eighteen (18) below-market-rate
units may be referred to as the "Affordable Units ."
Exhibit C -2
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
in this Agreement and other valuable consid eration , it is mutually agreed by and between the
Parties as follows .
AGREEMENT
The Parties agree and acknowledge that the above recitals are true and accurate, and are
incorporated into this Agreement by this reference.
ARTICLE 1.
DEFINITIONS AND ATTACHMENTS
Section 1.1. Definitions . When used in this Agreement, the following te1ms shall have
the respective meanings assigned to them in this Article 1.
(a) "Affordable Rent" is the maximum allowable Rent for an Affordable Unit,
equal to one-twelfth (1112th) of thirty percent (30 %) of fifty percent (50%) of Area Median
Income for Very Low Income Households , one-twelfth (1 11 2th) of thirty percent (30%) of sixty
percent (60 %) of Area Median Income for Low Income Households , and one-twelfth (1112th) of
thi1ty percent (30 %) of on e hundred ten percent (110 %) of Area Median Income for Moderate
Income Households , adjusted for assumed household size of one person in a studio Affordable
Unit , two persons in a one-bedroom Affordable Unit, three persons in a two-bedroom Affordable
Unit, and one additional person for every additional bedroom thereafter.
(b) "Affordable Units " are defined in Recital G.
( c) "A gre ement" is defined in th e fir st paragraph on page 1.
( d) "Area Median Incorne" is the median Household Income in Santa Clara
County as detennined periodically by the State of California pursuant to California Code of
Regulations, Title 25 , Section 6932 or successor provision .
( e) "City" is defined in the first paragraph on page 1 of this Agreement.
(f) "City Council " is the City Council of the City of Cupe1tino.
(g) "Cup ertino 10145" is defined in Recital A.
(h) "De Anza Venture" is defined in Recital B.
(i) "Density Bonus" is defined in Recital D.
(j) "Density Bonus Incentive" i s defined in Recital D.
(k) "Density Bonus Law " is d efined in Recital C.
(1) "Develop er " is defin ed in the fi r st p aragraph on p ag e 1 of this Agreement.
Exhib it C-3
(m) "Development Agreement" is defined in Recital B.
(n) "Director" is the Co1m1rnnity Development Director or successor position.
( o) "Effective Date" is defined in the first paragraph on page 1 of this
Agreement.
(p) "Eligible Household" is a household which has been detennined to be
eligible to rent an Affordable Unit in compliance with Density Bonus Law , the Development
Agreement, and this Agreement.
( q) "Hotel Parcel" is defined in Recital A.
(r) "Household Income" of a Tenant is detennined as provided in the City's
Policy and Procedures Manual or successor publication.
(s) "Low Income Household" is a household with a Household Income
between fifty percent (50%) and eighty percent (80%) of Area Median Income, adjusted for
a ctual household size.
(t)
Affordable Units.
"Market-Rate Units" are dwelling units 111 the Project that are not
(u) "Moderate Income Household" is a household with a Household Income
between eighty percent (80%) and one hundred twenty percent (120%) of Area Median Income,
adjusted for actual household size.
(v) "Moderate Income Unit" is defined in Article G.
(w) "M01igagee" is the holder of any mortgage, deed of trust, security
agreement, and other like security instrument encumbering all or any portion of the Property or
any of the Developer's 1ights under this Agreement.
(x) "Parking Modification" is defined in Recital D.
(y) "Paiiy" or "Paiiies" are defined in the first paragraph on page 1 of this
Agreement.
(z) "Policy and Procedures Manual" is the Policy and Procedures Manual for
Administering Deed Restricted Affordable Housing Units, or successor publication, adopted
from time to time by the City Counci l.
(aa) "Project" is defined in Recital B.
(bb) "Project Approvals" are defined in Recital B.
(cc) "Property" is defined in Re cital A.
Exhibit C-4
( dd) "Rent" includes monthly rent paid to the Developer, utilities , and all
mandatory fees for parking and other housing services associated with the Affordable Unit,
including but not limited to parking, bicycle storage, storage lockers , and use of all co1mnon
areas. An allowance for utilities paid by the Tenant is established by the Santa Clara County
Housing Authority, and includes garbage collection, sewer, water, electlicity, gas and other
heating, cooking and refiigeration fuel , but not telephone service or cable TV, and such
allowance must be deducted from the monthly rent paid to the Developer.
( ee) "Site" is defined in Recital A.
(ff) "Tenant" is a household occupying an Affordable Unit pursuant to a valid
lease or rental agreement with the Developer.
(gg) "Tenant Lease" is defined in Section 3.5.
(hh) "Tenn" is defined in Section 3.1.
(ii) "Unit" means either an Affordable Unit or a Market-Rate Unit in the
Project.
(jj) "Very Low Income Household" is a household with a Household Income
at or below fifty percent (50%) of Area Median Income, adjusted for actual household size.
(kk) "Very Low Income Unit" is defined in Recital D.
Section 1.2. Attachments. The followin g attaclunents are attached to and incorporated
into this Agreement:
Attaclunent 1 Legal Description of the Prope1iy.
Attaclunent 2 Schedule of Affordable Units.
Attaclu11ent 3 Example of Affordable Rents and Maximum Income Level of Tenants for
Affordable Units.
ARTICLE 2.
CONSTRUCTION OF PROJECT AND AFFORDABLE RENTAL UNITS
Section 2.1. Affordable Units. To satisfy Developer's affordable housing requirements
for the Project under Density Bonus Law and the Development Agreement, Developer shall rent
eighteen (18) Affordable Units at Affordable Rents, sixteen (16) to Very Low Income
Households and two (2) to Moderate Income Households as specified in Article 3 below, for the
Tenn.
Section 2.2. Constrnction of Affordable Units. The Affordable Units shall be
constrncted in propo1iion to constrnction of the Market-Rate Units , at a ratio of one Affordable
Unit to each ten (10) Market-Rate Units. No building pennit shall be issued for any Market-Rate
Exhi bit C-5
Unit unless a proportional number of building pem1its have been issued for Affordable Units ,
and no certificates of occupancy or final inspections shall be issued for any Market-Rate Units
unless a proportional number of certificates of occupancy or final inspections have been issued
for Affordable Units . The Director may approve a modified construction schedule if this timing
requirement will create unreasonable delays in the issuance of certificates of occupancy for
Market-Rate Units and if the Developer provides satisfactory assurance, as approved by the
Director, that the Affordable Units will be completed p1ior to completion of all of the Market-
Rate Units. Each Affordable Unit shall be inspected by the City prior to occupancy to detennine
that it meets the construction and other standards required by this Agreement.
Section 2.3. Appearance, Size and Bedroom Count of Affordable Units.
(a) Appearance and Maintenance of Affordable Units. The Affordable Units
in the Project shall be comparable to Market-Rate Units in terms of unit type, number of
bedrooms per unit, quality of exterior appearance, and overall quality of construction, except that
the Developer may elect to provide the Affordable Units with more bedrooms. Affordable Unit
sizes should be generally representative of the unit sizes of the Market-Rate Units, and the
Affordable Units shall be dispersed throughout the Project, in accordance with Attaclunent 2.
Interior features and finishes of Affordable Units shall be durable, of good quality, and consistent
with contemporary standards for new housing. Developer shall allocate and assign bicy cle
storage, storage lockers, and other spaces reserved for use by individual units to the Affordable
Units on the same basis as for the Market--Rate Units , and Tenants of the Affordable Units shall
have equal access to the Project's c01mnon areas as is given to the residents of the Market-Rate
Units , but any fee charged for use of common areas or for spaces reserved for individual units
shall be included in the Tenant's Rent. Affordable Units with one bedroom shall have one
parking space per unit pursuant to Municipal Code section 19.56.040(E). Affordable Units with
two bedrooms shall have two parking spaces per unit pursuant to Municipal Code section
19.124.040. Once completed, the Affordable Units shall not be kept vacant or used for any
purpose except for residential use and, if vacant, shall be marketed concurrently with the Market-
Rate Units and offered for rent to Eligible Households at Affordable Rents.
(b) Location of Affordable Units . As required by the Project Approvals, p1ior
to issuance of any building pennit for the Project, Developer shall submit to the Director an
Affordable Housing Plan, as described in the Project Approvals, specifying the proposed location
of the Affordable Units and the Project's consistency with this Article 2 , for the Director's
reasonable approval. If, after recordation of this Agreement, Developer desires to change the
location of any Affordable Unit within the Project, Developer shall submit a written request for
such change to the Director, who may approve such request provided that any relocated
Affordable Units shall be consistent with this Article 2, be comparable to those listed in
Attaclunent 2, and contain the same number of bedrooms.
ARTICLE 3.
RENT REGULATORY PROVISIONS
Section 3 .1. Tenn. The "Tenn" of this Agreement is the period in which each
Affordable Unit shall be rented to Very Low Income Households. For all Affordable Units , the
Term shall commence upon issuance of each ce1iificate of occupancy for an Affordable Unit and
Exhibit C-6
shall expire on the later of (a) fifty-five (55) years from the issuance of the final certificate of
occupancy for the Project or (b) the date the Project buildings are either (i) demolished or (ii)
converted to a non-residential use by Developer with any City-issued approvals and pennits that
. may be required. Upon issuance of the final cert ificate of occupancy, City and Developer shall
record a certificate specifying the date of issuance of the final ce1iificate of occupancy.
Section 3 .2. Affordability and Occupancy Covenants.
(a) Occupancy Requirements. Subject to the provisions of subsection (e) of
this Section below , sixteen (16) Affordable Units shall be rented to and occupied by or, if vacant,
avai_lable for occupancy by, Very Low Income Households and two (2) Affordable Units shall be
rented to and occupied by or, if vacant , available for occupancy by, Moderate Income
Households.
(b) Allowable Rent. Subject to the provisions of subsection (e) of this Section
below, the maximum Rent charged to Tenants of the Affordable Units shall not exceed
Affordable Rent.
( c) .City Approval of Rents. The initial Rents for all Affordable Units shall be
approved by the City prior to occupancy at the time the Developer submits to the City the
marketing plan required by Section 3.6 below. The City shall review all proposed Rent increases
to detennine whether the proposed increases are consistent with the provisions of this
Agreem ent. Developer shall certify to the City that Developer is not charging any fee other than
Affordable Rent to Tenants of the Affordable Units for all of the components of Rent defined in
Section 1.1 ( dd) abo ve.
(d) Schedule .of Affordable Rents. The City has provided the Developer with a
schedule of Affordable Rent s for the Affordable Units in effect on the date of this Agreement, set
f01ih in attached Attachment 3 . The City annually detennines Affordable Rents (including utility
allowances) based on changes in Area Median Income and utility allowances, and Developer
shall obtain a copy of the schedule from the Director.
( e) Increa sed Income of Tenants.
(i) Increase from Very Low Income to at or below Low Income. If,
upon annual rece1iification of a Very Low Income Unit Tenant's income, the Developer
dete1mines that a fonner Very Low Income Household's income has increased and exceeds the
qualifying income for a Very Low Income Household, but does not exceed the qualifying limit
for a Low Income Household , then , upon expiration of the Tenant's lease and after sixty (60)
days written notice to the Tenant, the Tenant's rent may be increased to Affordable Rent for Low
Income Households.
(ii) Increase to Above Low Income. If, upon rece1iification of a Very
Low Income Unit Tenant's Household Income, the Developer detennines that the Tenant's
Household Incom e has increased and exceeds the qualifying income for a Low Income
Household, then the Tenant shall be given w1itten notice that Tenant shall vacate the Very Low
Income Unit three (3) months from the date of the notice or upon expiration of the Tenant's
lease, whichever is later. A three (3) month extension may be granted by the Director in cases of
Exhibit C-7
extreme hardship. If, prior to the date by which the Tenant must vacate the Very Low Income
Unit , a Moderate Income Unit is vacated and is of approp1iate bedroom size, the Developer may,
at the Developer's option, request the Director, pursuant to Section 2.3(b) above, to approve a
· change in the location of the Very Low Income Unit and the Moderate Income Unit; allow the
Tenant ·to remain in the original Unit as a Moderate Income Unit; and designate the newly
vacated Unit as a Very Low Income Unit if approved by the Director. Alternatively, if another
Unit in the Project is vacated which is not designated as an Affordable Unit and is of appropriate
bedroom size, the Developer may , at the Developer's option, request the Director, pursuant to
Section 2.3(b) above, to approve a change in the location of the Very Low Income Unit; allow
the Tenant to remain in the original Unit at market rent; and designate the newly vacated Unit as
· a Very Low Income Unit if approved by the Director.
(iii) Increase to Above Moderate Income. If: upon recertification of a
Moderate Income Unit Tenant's Household Income, the Developer determines that the Tenant 's
Household Income has increased and exceeds the qualifying income for a Moderate Income
Household, then the Tenant shall be gi ven written notice that Tenant shall vacate the Moderate
Income Unit three (3) months from the date of the notice or upon expiration of the Tenant 's
le as e, whichever is later. A tlu·ee (3) month extension may be granted by the Director in cases of
extteme hard ship. If, prior to the date by which the Tenant must vacate the Moderate Income
Unit, another Unit in the Project is vacated which is not designated as an Affordable Unit and is
of appropriate bedroom size, the Developer may, at the Developer's option, request the Director,
pursuant to Section 2.3(b) above, to approve a change in the location of the Moderate Income
Unit ; allow . the Tenant to remain in the original Unit at market rent ; and designate the newly
va cated Unit as a Moderate Income Unit if appro ved by the Director.
Section 3.3 . Agreement to Limitation on Rents . The Proj ect has received approval of a
Development Agreement and Density Bonus Incentives under Density Bo nus Law from the City.
These are fonns of assistance specified in Chapter 4.3 ( conunencing with Section 65915) of
· Division 1 of Title 7 of the Govenunent Code . Sections 1954.52(b) and 1954 .53(a)(2) of the
Costa-Hawkins Act provide that, where a developer has received such assistance, certain
provisions of the Costa-Hawkins Act do not apply if a developer has so agreed by contract. The
Developer hereby agrees to limit Rents as provided in this Agreement in consideration of the
Developer 's receipt of the Density Bonus Incentives and the City's approval of the Development
Agreement and further agrees that any limitations on Rents imposed on the Affordable Units are
in confonnance with the Costa-Hawkins Act. The Developer fmiher waffants and covenants that
the tenns of this Agreement are fully enforceable .
Section 3.4 . Notice to Developer. Developer further acknowledges and agrees that the
City, in its review of the Project Approval s, provided adequate and proper notice pursuant to
Goverrunent Code Section 66020 of Developer's 1ight to protest any requirements for fees,
dedications , reservations , and other exactions as may be included in this Agreement, that no
protest in compliance with Section 66020 was made within ninety (90) days of the date that
notice was gi ven , and that the period has expired in which Developer may protest any and all
fees , dedication s, reservations, and oth er exactions as may be included in this Agreement.
Exhibit C-8
Section 3.5. Lease Provisions . The Developer shall use a fonn of Tenant lease (the
"Tenant Lease") approved by the City for the Affordable Units . The Tenant Lease shall, among
other matters :
(a) provide for tennination of the lease for failure: (1) to provide any
infonnation required under this Agreement or reasonab ly requested by the Developer to establish
or recertify the Tenant's qualification, or the qualification of the Tenant's household, as an
Eligible Household in accordance with this Agreement, or (2) to qualify as an Eligible
Household as a result of any material misrepresentation made by such Tenant with respect to the
Household Income computation or certification;
(b) provide that the Rent may not be raised more often than once every twelve
(12) months . The Developer will provide each Tenant with at least sixty (60) days written notice
of any increase in Rent applicaqle to such Tenant;
(c) prohibit subleasing of the Affordable Unit or any po1iion of the Affordable
Unit or any spaces reserved for the use of the Tenant, contain nondiscrimination provisions , and
include the Tenant's obligation to infonn the Developer of any need for maintenance or repair
(d) allow te1mination . of the tenancy only for an increase in Tenant's
Household Income above qualifying income for Low Income Households or for good cause,
including violation of the tem1s and conditions of the Tenant Lease, violations of applicable
federal, state, or local law, or other good cause; ·
( e) include, at Developer's option, the obligation for Tenant to provide a
secmity deposit not ex ceeding two month s' r ent;
· (t) be for an initial tenn of one year; and
(g) otherwise confo1m to the Policy and Procedures Manual.
Section 3.6. Mai·keting, Income Certification and Reporting.
(a) Required City Approvals . At least sixty (60) days before any Affordable
Units in the Project receive a final inspection or ce1iificate of occupancy, the Developer shall
notify City of the availability of the Affordable Units and provide to the City its proposed
marketing plan for the Affordable Units as desc1ibed below; the proposed fonn of Tenant Lease
to confinn confonnance with the provisions of Section 3.5 above; and proposed Affordable
Rents for the Affordable Units , all for City review and approval. The Affordable Units shall be
marketed concunently with the marketing of the Market-Rate Units.
(b) Marketing Plan . The Developer's marketing plan shall be consistent with
the provisions of this subsection (b ). Upon receipt of the marketing plan, the City shall promptly
review the marketing plan and shall approve or disapprove it within thi1iy (30) days after
submission . If the marketing plan is not approved, the Developer shall submit a revised
marketing plan within thi1iy (30) days.
Exhibit C-9
(i) Section _8 Vouchers and Certificate Holders. The Developer will
review applications from prospective tenants of Affordable Units, on the same basis as all other
pro spective tenants, of persons who are recipients of federal certificates for rent subsidies
pursuant to the existing housing program under Section 8 of the United States Housing Act or
any successor. The Developer shall not apply selection criteria to Section 8 certificate or voucher
holders that are more burdensome than criteria applied to all other prospective tenants for the
Affordable Units, nor shall the Developer apply or pennit the application of management
policies or lease provisions with respect to the Project which have the effect of precluding
occupancy of Affordable Units by such prospective tenants.
(ii) Marketing Materials. The marketing plan submitted to the City
shall include the following: means to be used to adve1iise Affordable Units to the public upon
initial occupaiicy and as vacancies occur and maintenance of a waiting list; the amount of any
application screening fee to be imposed by Developer, and infonnation to be provided to
applicants, including conditions and restrictions applicable to occupancy of the Affordable Units,
current Affordable Rent, pennitted Rent increases , maximum qualifying income for an Eligible
Household, requirement for annual Household Income rece1iification, preferences, if any, and
requirement to vacate the Affordable Unit if the Tenant's Household Income exceeds the
maximum qualifying income.
( c) Income Ce1iification.
(i) Prior to D ev eloper 's entering in to a lease with a prospective tenant
of an Affordable Unit , the prospective tenant household shall be certified by the City or its
ass ignee as an Eligible Household ,
(ii) Ammally thereafter , the Developer will obtain, complete and
maintain on file Household Income certifications for each Tenant renting any of the Affordable
Units . Developer shall make a good faith effort to ve1ify that the Household Income statement
provided by a Tenant is accurate by taking two or more of the following steps as a part of the
verification process for all members of the Tenant household age eighteen (18) or older: (a)
obtaining a minimum of the three (3) most cmTent pay stubs; (b) obtaining an income tax return
for the most recent tax year; ( c) conducting a credit agency or similar search; ( d) obtaining the
three (3) most cmTent savings and checking account bank statements ; ( e) obtaining an income
verification fonn from a current employer; (f) obtaining an income verification fonn from the
Social Secmity Administration and /or the California Depaiiment of Social Services if an adult
member of the Tenant's household receives assistance from either of such agencies; or (g) if the
Tenant is unemployed and has no such tax return, obtain another fonn of independent
verification. Copies of annual Tenant Household Income ce1iifications shall be provided to the
City or its assignee for review.
(iii) As an alternative to the procedure described in subparagraph (ii) of
this subsection (c), Developer may co ntract with a provider approved by the City to certify
Tenant Household Incomes on an annual basis.
Exhibit C --10
( d) · Rep01is to City.
(i) Ammal R eport. The Developer shall submit to the City on April 1st
of each year a repo1i, in a fonn prescribed by or othe1wise acceptable to the City, verifying
compliance by Developer with the tenns of this Agreement and certified as correct by the
. Developer. The annual report shall include without limitation: Household Income for all Tenants
of Affordable Units at the time of initial occupancy and at recertification; number of persons in
each Affordable Unit; amount of Rent charged; other infonnation reasonably required by the
City.
(ii) Other Reports. Within fifteen (15) days after receipt of a w1itten
request, Developer shall provide any other infonnation or completed forms reasonably requested
by the City to ensure compliance with this Agreement.
Section 3.7. Management of Property and Property Maintenance.
(a) Management Responsibilities. Except for the City's initial certification of
a Tenant as an Eligible Household, the Developer is responsible for <1.ll management functions
with respect to the hojcct, including, without limitation , the ammal recertification of household
size and Household Income (subject to review by the City or its assignee), selection of Tenants,
evictions, collection of Rents and deposits , maintenance, landscaping, routine and extraordinary
repairs , replacement of capital items, and sec:mity. The City shall have no responsibility over
management of.the Project.
(b) prope1ty Maintenance. The City places prime importance on quality
maintenance to ensure that all developments within the City which include affordable housing
units are not allowed to dete1iorate due to below-average maintenance. Developer shall provide
the Affordable Units with the same level and quality of maintenance, including perfornrnnce of
repairs and periodic replacement of fixtures as the Market-Rate Units . The Developer agrees to
maintain all interior and exterior impro vements, including landscaping, on the Prope1iy in good
co ndition and repair (and, as to landscaping, in a healthy condition) and in accordance with all
applicable laws , rules, ordinances , orders and regulations of all federal, state, county, municipal ,
and other governmental agenciys and bodies having or claiming jmisdiction and all their
respective departments , bureaus , and officials.
( c) Taxes and Assessments . Developer shall pay all real and personal prope1iy
taxes , assessments, if any, and charges and all franchise , income, employment, old age benefit,
withholding, sales, and other taxes assessed agai nst it, or payable by it , at such times and in such
manner as to prevent any penalty from accruing, or any lien or charge from attaching to the
Prope1iy; provided, however, that Developer shall have the right to contest in good faith, any
such taxes, assess ments, or charges. In the event Developer exercises its right to contest any tax ,
assessment, or charge against it, Developer, on final detennination of the proceeding or contest,
shall immediately pay or discharge any decision or judgment rendered against it, together with
all costs, charges and interest.
Exhibit C-11
ARTICLE 4.
ENFORCEMENT
Section 4.1 . Covenants Running with the Land. The City and Developer hereby declare
their express intent that the cov enants and restrictions set forth in this Agreement shall apply to
and bind Developer and its heirs , executors , administrators , successors, transferees , and
assignees hav ing or acquiring any 1ight, title or interest in or to any paii of the Prope1iy and shall
run with and burden such po1iions of the Property until tenninated in accordance with Section
4.3 . Until all or p01iions of the Prope1iy are expressly released from the burdens of this
Agreement, each and every contract , deed or other instrument hereafter executed covering or
conv eying the Property or any portion thereof shall be held conclusively to have been executed ,
delivered , and accepted subject to such covenants and restrictions, regardless of whether such
covenants or restrictions are set forth in such contract, deed or other instrument. In the event of
foreclosure or transfer by deed-in-lieu of all or any portion of the Property prior to completion
and sale of all of the Affordable Units , title to all or any portion of the Property shall be taken
subject to th.is Agreement. Dev eloper acknowledges that compliance with this Agreement is a
requirement of Density Bonus Law and the Project Approvals , and that no event of foreclosure
or trustee's sale may remove these requirements from the Prope1iy .
Section 4 .2. No Subordination; Notice to Mortgagees . In no ev ent shall this
AgTe ement be subordinated to , or recorded subord inate to , a m01ig ag e, deed of trust , or oth er
method of security encumbering the Property, other than current unpaid taxes. If City r e ceives a
notice from a M01igagee requesting a copy of any notice of default given Deve loper hereunder
and specifying the addres s for service thereof, then City agrees to use its diligent, good faith
effo1is to deliver to such Mo1igagee , concurrently w i th service thereon to Dev eloper, any notice
of default given to Developer. Each Mortgagee shall have the 1i ght during the same period
available to Developer to cure or remedy, or to commence to cure or remedy, the ev ent of default
claimed or the areas of noncompliance set forth in City's notice of default. If a Mortga gee is
r equired to obtain possession in order to cure any default , the time to cure shall be tolled so long
as the M01igagee is attempting to obtain possession, including by appointment of a receiver or
foreclosure, but in no event may this period exceed 120 days from the date the City delivers the
notice of default to Developer.
Section 4.3. Release of Prope1iy from Agreement.
(a) Prior to the expiration of the Tenn, Developer shall provide all
notifications required by Govenunent Code Sections 65863.10 and 65863.11 or successor
pro visions and any other notification required by an y state, federal , or local law. In addition, at
least s ix (6) months prior to the expiration of the Tenn for an Affordable Unit , the Developer
shall provide a notice by first-class mail, postage prepaid, to all Tenants in the Affordable Units
whose T enn is expiring. The notice shall contain (a) the anticipated date of the expiration of the
Tenn, (b) any anticipated Rent increase upon the expiration of the Tenn, (c) a statement that a
copy of such notice will be sent to the City, and (d) a st atement that a public hearing may be h eld
by the City on the issue and that the Tenant will receive notice of the hearing at least fifteen (15)
days in advance of any such hearing . The Develop er shall file a copy of the above-described
notice with the City Manag er.
Ex hi bi t C-12
(b) Upon the expiration of the Tenn, City shall execute and record a release of
the Project, the Property, and each Unit in the Project from the burdens of this Agreement within
thirty (30) days following written notice from the Developer, if at the time the Developer is in
compliance with all tem1s of this Agreement.
Section 4.4 . Default. Failure of the Developer to satisfy any of Developer's obligations
under the tenns of this Agreement withi n thirty (30) days after the delivery of a notice of default
from the City will constitute a default under this Agreement, a default under the Development
Agreement, and a failure to satisfy the Project Approvals and Density Bonus Law. In addition to
remedies for breach of this Agreement, the City may exercise any and all remedies available to it
under Density Bonus Law, or othenvise, including but not limited to:
(a) withholding, conditioning, suspending or revoking any pennit, license,
subdivision approval or map, or other entitlement for the Project, including without limitation
final inspections for occupancy and/or certificates of occupancy;
(b) instituting against the Developer, or other paiiies, a civil action for
declaratory relief, injunction or any other equitable relief, or relief at law , including without
limitation an action to rescind a transaction and /or to require repayment of any funds received in
cormection with such a violation;
(c) where one or more persons have received financial benefit as a result of
violation of thi s Agreement or of any requirement imposed under the Density Bonus Law , the
City may assess , and institute legal action to recover as necessary, a penalty in any amount up to
and incl uding the amount of financial benefit received , in addition to recovery of the benefit
received ;
( d) requiring the Develop er or his /her successors in interest to the Prope1iy to
pay the City Rent or any other payment received by the Developer for the Affordable Unit from
the date of any unauthorized use of the Affordable Unit or in excess of Affordable Rent ; and
(e) any other means authorized under the City of Cupertino Municipal Code,
Density Bonus Law, or any other federal or state statute .
Section 4.5 . Remedies Cumulative. No right, power, or remedy given to the City by the
tenns of this Agreement or Density Bonus Law is intended to be exclusive of any other right ,
power, or rem edy; and each and every such right, power, or remedy shall be cumulative and in
addition to every other 1ight, power, or remedy given to the City by the tenns of this Agreement ,
Den si ty Bonus Law, or by any statute or ordinance or otherwise against Developer and any other
person . Neither the failure nor any delay on the pati of the City to exercise any such rights and
remedies shall operate as a waiver thereof, nor shall any single or paiiial exercise by the City of
any such right or remedy preclude any other or fu1iher exercise of such right or remedy, or any
other 1ight or remedy.
Exhibit C-13
ARTICLE 5.
GENERAL PROVISIONS
Section 5.1. Appointment of Other Agencies . At its so le discretion, the City may
designate, appoint or contract with any other public agency, for-profit or non-profit organization
to perfonn some or all of the City's obligations under this Agreement.
Section 5 .2. Records . Developer shall retain all records related to compliance with
obligations under this Agreement for a period not less than five (5) years from the date of
origination of such records, and make them available to City employees or others designated by
the City for inspection and copying on five (5) business days' w1itten notice. The City shall be
entitled to monitor compliance with this Agreement and Density Bonus Law, and Developer
. shall cooperate with City monitoring, including obtaining Tenant Rent and Household Income
verification upon request of the City.
Section 5.3. Monitoring Fee . Developer agrees to pay an annual monitoring fee as may
. be adopted by resolution of the City Council which is in force and effect for a similar class of
affordable units.
Section 5.4. Nondiscrimination. All of the Affordable Units shall be available for
o ccupancy to members of the general public . The Developer shall not give preference to any
particular class or group of persons in renting or selling the Affordable Units , except to the
extent that the Affordable Units are required to be rented and sold to Eligible Households and as
required by thi s Agreement; provided, however, there shall be no discrimination against or
segregation of any person or group of pers ons , on account of race, color, creed, religion, sex,
sexual orientation, marital status, national origin, source of income ( e.g., SSI), age ( except for
lawful senior housing), ancestry, or disability, in the leasing, transferring, use, occupancy, tenure,
or enjoyment of any Unit nor shall the Developer or any person claiming under or through the
Developer, establish or pennit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use , or occupancy of Tenants of any Unit or in
c01mection with the employment of persons for the construction, operation and management of
the Projecf
Section 5.5. Hold Hannless. Dev eloper will indemnify and hold hannless (without
iimit as to amount) City and its elected officials, officers, employees and agents in their official
capacity (hereinafter collectively refe1Ted to as "I11de1m1itees"), and any of them, from and
against all loss, all risk of loss and all damage (including expense) sustained or incurred because
of or by reason of any and all claims, demands, suits, actions , judgments and executions for
damages of any and every kind and by whomever and whenever made or obtained, allegedly
caused by, arising out of or relating in any mam1er to the Project, the Affordable Units, or
Developer's perfonnance or non-perf01mance under this Agreement, including claims pursuant
to California Labor Code Section l 720 et seq., and shall protect and defend Indenmitees, and any
of them with respect thereto , except to the extent arising from the gross negligence or willful
misconduct of the Indemnitees . The provisions of this Section shall survive expiration or other
tennination of this Agreement or any release of part or all of the Property from the burdens of
this Agreement, and the provisions of this Section shall remain in full force and effect.
Exhibit C-14
Section 5.6 . Notices. All notices required pursuant to this Agreement shall be in
writing and may be given by personal delivery or by registered or ce1iified mail, return receipt
requested, to the Party to receive such notice at the addressed set forth below:
TO THE CITY:
City of Cupertino
Office of City Attorney
10300 T01Te Avenue
Cupertino, CA 94301
TO THE DEVELOPER:
Albert Wang
Marina Plaza, LLC
4546 El Camino Real, Suite 222
Los Altos, CA 94022
WlTH A COPY TO :
Samuel A.-Chuck ·
Rossi, Hamerslough, Reischl & Chuck , PLC
1960 The Alameda, Suite 200
San .Jose, CA 95126
Any Party may change the address to which notices are to be sent by notifying the other Paiiies
of the new address , in the maimer set forth above.
Section 5.7. Integrated Agreement; Relationship to Other Related Agreements and
Documents. This Agreement constitutes the entire Agreement between the Paiiies and no
modification hereof shall be binding unless reduced to writing and signed by the Parties hereto.
The paiiies acknowledge that this Agreement was negotiated concu1Tently with the Development
Agreement. The Pmiies hereby agree that in the event of a direct conflict between this
Agreement and the Development Agreement, this Agreement shall control. In addition, in the
event of any direct conflict between a mate1ial tenn of this Agreement (including but not limited
to , the Tenn) and the tenns of the Policy and Procedures Manual, this Agreement shall control.
Section 5.8. Each Party's Role in Drafting the Agreement. Each Party to this
Agreement has had an oppo1iunity to review the Agreement, confer with legal counsel regarding
the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither
Pmiy shall rely upon Civil Code Section 1654 in order to interpret any unce1iainty in the
meaning ofthe Agreement.
Exhi bit C-15
Section 5.9. Amendment of Agreement; Approvals and Consents.
(a) Amendments to this Agreement shall be subject to the review and
approval of the City Council. No amendment may be approved that is inconsistent with State
law, the Cupe1iino Municipal Code, the Development Agreement, or the Policy and Procedure
Manual. Upon approval, a restated Agreement or amendments to this Agreement, as approp1iate,
shall be executed and recorded.
(b) The City has authorized the City Manager to execute this Agreement and
has authorized the Director to deliver such approvals or consents as are required by this
Agreement. Any consents or approvals required under this Agreement shall not be unreasonably
withheld or made, unless it is specifically provided that a sole discretion standard applies.
Section 5.10. No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person that Developer may have employed or with whom
Developer may have contracted relative to the purchase of materials, supplies or equipment, or
the furnishing or the perfonnance of any work or services with respect to the Prope1iy or the
construction of the Project or construction of the Affordable Units.
Section 5.11. Applicable Law. This Agre ement shall be governed by California law .
Venue shall be the County of Santa Clara.
Section 5.12. Waivers. Any waiver by the City of any obligation or condition in this
Agreement must be in writing. No waiver will be implied from any delay or failure by the City to
take action on any breach or default of Dev eloper or to pursue any remedy allowed under this
Agreement or applicabl e law. Any extension of time granted to Dev eloper to perfonn. any
obligation under this Agreement shall not operate as a wai v er or release from any of its
obligations under this Agreement. Consent by th e City to any act or omission by Developer shall
not be construed to be a consent to any other or subsequent act or omission or to waiv e the
r equirement for the City's w1itten consent to future waivers.
Section 5.13. Title of Parts and Sections. Any titles of the sections , subsections, or
subparagraphs of this Agreement are inse1ied for convenience of reference only and shall be
disregarded in interpreting any part of the Agreement's provisions.
Section 5 .14. Multiple Originals; Counterpaii. This Agreement may be executed in
multiple originals , each of which is deemed to be an 01iginal, and may be signed in counterpaiis.
Section 5.15 . Recording of Agreement. This Agreement shall be recorded against the
Property in the Official Records of the County of Santa Clara prior to the recordation of any
development agreement, parcel map or final subdivision map or issuance of any building pennit
for the Project, whichever occurs first.
Section 5.16. Estoppel Ce1iificate . Developer or its lender may, at any time, and from
time to time, deliver written notice to the City requesting the City to ce1iify in writing that, to the
knowledge of the City (a) this Agreement is in full for ce and effect and is a binding obligation of
the Paiiies, (b) this Agreement has not been amended or modified or, if so amended or modified,
identifying the amendments or modifications , and (c) Developer is not in Default in the
Exhibit C-16
perfonnance of its obligations under this Agreement, or if in Default, to describe the nature of
any Defaults. Developer and City acknowledge that a ce1iificate hereunder may be relied upon
by the Developer and Mortgagees . The Developer may request the estoppel certificate to be in a
recordable f01111 and may record such certificate in the Official Records of Santa Clara County at
its sole cost and expense. The City Manager shall be autho1ized to execute any certificate
requested by Developer in a fonn reasonably approved by the City Attorney. The Developer
shall pay all costs borne by City in connection with its review of any proposed estoppel
certificate.
Section 5.17 . Severability. In the event any limitation, condition, restriction, covenant,
or provision contained in this Agreement is to be held invalid, void or unenforceable by any
court of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be
and remain in full force and effect.
[Signatures on Following Page]
Ex hibit C-17
IN WITNESS WHEREOF , the Paities hereto h ave caused this Agreement to be executed
as of the day and year first above w;itten .
ATTEST:
By :
Grace Schmidt, City Clerk
APPROVED AS TO FORM :
By:---~-~--------------·--
Randolph Stev enson Hom, City
A ttorney
CITY:
CITY OF CUPERTINO, a municipal corporation
By: FORM -DO NOT SIGN -----------David Brandt, City Manager
[Signature must be notarized]
DEVELOPER:
MARINA PLAZA, LLC, a California limited
li ability company
By: -----------------
Albe1i Wang, Managing Member
[Signatures must be notarized]
Exhibi t C -1 8
[Notary Acknowledgements To B e Inserted]
Exhibit C -Acknowledgment
ATTACHMENT 1
PROPERTY DESCRIPTION
IOl 18-10122 BANDLEY DRIVE (APN 326-34-066)
All that certain Real Prope1iy in the City of Cupertino , County of Santa Clara, State of
California, described as follows:
PARCEL ONE
ALL OF PARCEL "A" AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "PARCEL
MAP BEING A PORTION OF NW¼ OF SECTION 13, T. 7S ., R. 1 W ., M.D.B.& M .",
WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON FEBRUARY 15 , 1978 IN
BOOK 412 OF MAPS, AT PAGE 50.
PARCEL TWO:
AN EASEMENT FOR THE PURPOSE OF VEHICULAR AND PEDESTRIAN INGRESS
AND EGRESS , AS C ONVEYED BY TH AT CERTAIN GRANT OF EASEMENT
RECORDED JULY 17, 1981 IN BOOK G221 , PAGE 162 , AND BY COVENANT
REGARDING EASEMENT RECORDED JULY 17 , 1981 IN BOOK G221 , PAGE 184,
OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THE SOUTHERLY 27 FEET OF PARCEL ''B " AS SAID PARCEL "B" IS SHOWN UPON
THAT CERTAIN PARCEL MAP RECORDED lN BOOK 412 OF MAPS, ATP AGE 50,
SANTA CLARA COUNTY RECORDS.
PARCEL THREE:
RECIPROCAL EASEMENTS AS DESCRIBED IN THAT CERTAIN "RECIPROCAL
EASEMENT AGREEMENT" EXECUTED BY NORCAL ASSOCIATES , A CALIFORNIA
PARTNERSHIP AND COAST FEDERAL SA VIN GS AND LOAN ASSOCIATION, A
UNITED STATES CORPORATION, RECORDED JULY 18 , 1979 IN BOOK E648 , PAGE 568
AND BY THAT CERTAIN "DECLARATION OF ESTABLISHMENT OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENTS " RECORDED
AUGUST 22, 1979 IN BOOK E742 , PAGE 703 AND AS AMENDED BY DOCUMENT
RECORDED APRIL 15 , 1980 IN BOOK F272 , PAGE 71 , OF OFFICIAL RECORDS.
Attaclun ent 1-1 to Exhibi t C
-
Number of I
Bedrooms
One
Two
TOTALS:
~
ATTACHMENT 2
SCHEDULE OF AFFORDABLE UNITS
Unit Numbers &
Very Low Moderate [May be provided
Income Units Income Units permit]
2nd Floor 3rd Floor
8 1
8 1
16 2
Attaclu,1ent 2 -1 to E x hibit C
Location
at building
4th floor
I
I
ATTACHMENT 3
EXAMPLE OF AFFORDABLE RENTS FOR AFFORDABLE UNITS AND MAXIMUM
INCOME LEVEL OF TENANTS
(Provided for reference. These limits are adjusted annually, as determined and published
by the City. Project shall be subject to the Affordable Rents and Household Income limits
in effect at the time Developer submits marketing plan to City.)
A . Affordable Rents.
Affordable Rent is defined in Section 1.1 ( a) of this Agreement. The table below illustrates how
Affordable Rent is calculated, based upon 2016 State Income Limits adopted by the California
D epartment of Housing and Community Development and contained in California Code of
Regulations, Title 25, Section 6932.
AMI* for Maximum Monthly
Number of Assumed Percent of Maximum Affordable Rent**
Bedrooms Household AMI Annual Rent (1/12 of Maximum
Size Arnmal Rent) ·---------··
50 $12,855 $1,072 ---------·--·-·
One $85,7 00 60 $15,426 $1,286 ---------f-----·
-----------110 $28,281 ·--$2,357
f----· l , so --j--$~4,460 $1,205
_____ Two ____ l_ $96,400 -· 1---16100 __ __ f ~ ~:!f ~ -$1,446 _j $2,651
* AMI is Area A1edian Incom e.
*,i-A reasonable allowance for tena nt-paid utilities must be deducted from the Tenant's monthly payments
to the Developer. S ee definition of Rent in Section 1.1 (aa) for other fees and charges that must be
deducted fi'om the Tenant's monthly payments to the Develop er. 2016 utility allowances are available at:
http://www. hacsc. org/assets/1/6/20 16 _ Utility __ Allowances Jar_ we bsite_ update.pd/
B. Maximum Household Income of Tenants (Income Limits)
Household Size Maximum Gross Annual Household Income
(Number of Persons) Very Low Income Low Income Moderate Income
1 $39,100 $59,400 $89,950
2 $44,650 $67,900 $102,800
3 $50,250 $76,400 $115,650 -
In come limits for larger households available upon request from the City.
Attachmen t 3-1 to Exhibit C
1.
2.
3 .
4.
Housing Mitigation Fees
$7,140,415.00
Park Impact Fees
$3,672,000 .00
Public Ali Contiibution
Not less than $100 ,000.00
EXHIBIT D
EXISTING IMPACT FEES
Negotiated Transp01iation Infrastructure Cont1ibution
$413 ,952.00
Exhibi t D
Section 4.1.1
Section 4 .1.2
Section 4.1.3
Section 4 .1.4
EXHIBITE
TRANSPORTATION IMPACT FEE FORMULA
If Developer modifies the Project pursuant to Section 8 of this Agreement and such
amendment results in a change in the number of Residential Units, Hotel Rooms, or square
footage of commercial or retail space, the Negotiated Transportation Infrastructure Contribution
in Section 4.1.5 shall be adjusted according to the following fonnula :
Transportation Impact Fee
Units Quantity Fee Total Fee
Residential Dwelling Unit 188 $ 3,000.00 $ 564 ,000.00
Hotel Room 122 $2,000.00 $ 244,000.00
New Retail Per 1,000 square feet 22.593 $ 8,000.00 $ 180 ,744 .00
Existing
Retail Per 1,000 square feet -48. 724 ~8,000.00 $ (389,792.00) --
-· Transportation Impact Fee Total $ 598,952.00
Jransportation_lrnpact Fee to be paid with Reduction from Public Benefits in Section 5.1 .3
ansportation Il~pac·t-F-~e_e_T_o_t_a_l ~-$-5_9_8-,9-5-2--.-00-__ -·-
__ S u_b_tr~~-t P_ubl~~enefits $ 185,000.00
Total $ 413,952.00
*Do es not include bus sh elt er and benches
Ex hibit E
Exhibit F
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attn .: City Manager
No fee for recording pursuant to
Govenunent Code Section 27383
)
)
)
)
)
)
)
(Space above for Recorder's Use)
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
This AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
("Agreement"), dated as of October 20 , 2016, is made and entered into by and between
CUPERTINO 10145, LLC, a California limited liability company ("Developer"), and the CITY
OF CUPERTINO, a California municipal corporation ("City"), (individually a "Party" and
collectively the "Parties").
RECITALS
A . Developer is the owner of that certain real property commonly known as 10145
No1ih De Anza Boulevard (APN 326-34-043) in Cupertino , California, County of Santa Clara as
more paiiicularly described in Attaclunent 1 attached hereto and incorporated herein by this
reference (the "Hotel Parcel"). The Hotel Parcel, together with 10118-10122 Bandley Drive
(APN 326-3-066) ("Residential Parcel") constitute the "Property."
B. The City on one hand, and Developer and Maiina Plal a, LLC, a California limited
liability company (together the "Property Owners"), on the other, have entered into a
Development Agreement ("Development Agreement"), effective October 20, 2016 and
recorded on ___ in the Official Records of Santa Clara County as Instrument No.
-----, to facilitate development of the Property subject to certain tenns and conditions.
Prope1iy Owners intend to demolish the existing commercial space on the Property and
redevelop the Prope1iy with a 122-room full service neighborhood business hotel on the Hotel
Parcel ("Hotel"), as well as 188 residential rental apartment units and approximately 23 ,600
square feet of commercial space on the Residential Parcel, and related uses, as further described
in the Development Agreement and the Project Approvals referenced therein ( collectively the
"Project"). All capitalized te1111s not otherwise defined in this Agreement have the meaning
asc1ibed to them in the Development Agreement.
C. Developer and City have agreed to execute and record this Agreement in order to
bind Developer and future owners of the Hotel Parcel to certain obligations regarding the
Exhibit F-1
ongoing use and operation of the Hotel and Hotel Parcel and certain other obligations, all as set
forth h erein .
AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits accruing to the Parties
hereto, and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Developer and City on behalf of themselves and their respective heirs, executors,
successors, assigns and each successor in interest h ereby covenant and agree as follows:
1. No Extended Stay Hotel, Developer hereby covenants and agrees, for itself, its
successors, its assigns and every successor in interest to the Hotel Parcel or any paii thereof, that
for the time period set fo1ih below, no Extended Stay hotel use shall be allowed on the Hotel
Parcel. As used herein "Extended Stay" is defined as overnight occupancy for thirty (30)
consecutive days or longer; provided , however, that a stay in which a guest "checks out" of the
Hotel not less than every twenty-ninth (29th) day shall not be considered an Extended Stay,
notwithstanding that such guest immediately checks back into the Hotel.
2 . Use of Conference Rooms. Developer hereby covenants and agrees, for itself, its
successors , its assigns and every successor in interest to the Hotel Parcel or any paii thereof, that
the Hotel will contain at least one (1) conference room totaling no le ss than Five Hundred (500)
square feet of conference space ("Conference Rooms"). Developer hereby grants City the right
to us e the Conference R ooms , at no cost to City, for the purpose of hosting meetings and other
City events for up to 12 days per year upon thirty (30) days prior w1itten notice to Developer.
Use of multiple Conference Rooms in a given day shall be counted as one day per Conference
Room . Developer shall have the right to reasonably reject dates requested by City, provided
Developer offers C ity at least tlu·ee (3) alternative dates, each of which shall be within 15 days of
the date 01iginally proposed by City and rej ected by Developer. Developer fmiher agrees to
provide food , beverages, and other amenities dming the City's u se of the Conference Rooms at a
rate not t o exceed the rate offered to the general public for such amenities . City shall indemnify
and hold Developer haimless from any prope1iy damage, bodily injury, or death arising out of
the City's use of the Conference Rooms to the extent caused by the sole or active negligence or
willful misconduct of City. Except as otherwise expressly provided in the foregoing sentence,
City shall not be liable in any maimer for any inconvenience, disturbance, loss of business,
nuisance, or other damage arising out of its use of the Conference Rooms.
3. Interference With Financing. No violation or breach of the covenants, conditions ,
restlictions , provi sions or limitations contained in this Agreement shall defeat or render invalid
or in any way impair the lien or charge of any mortgage, deed of trust or other financing or
security instrument; provided, however, that any successor of Developer to the Hotel Parcel shall
be bound by such remaining covenants, conditions, restiictions, limitations and provisions,
whether such successor's title was acquired by foreclosure , deed in lieu of foreclosure, trustee's
sale or otherwise.
4. B~neficiaries. C ity is deemed the beneficiary of the tenns and provisions of this
Agreement and of th e covenants ru1ming with the l and , for and in its own right and for the
purposes of protecting the interests of the community and other paiiies, public or private, in
Exhibit F-2
whose favor and for whose benefit this Agreement and the covenants running with the land have
been provided , without regard to whether City has been, remains or is an owner of any land or
interest therein in the Hotel Parcel or the Project. City shall have the right, if the Agreement or
covenants are breached, to exercise all 1ights and remedies, and to maintain any actions or suits
at law or in equity or other proper proceedings to enforce the curing of such breaches to which it
or any other beneficiaries of this Agreement and covenants may be entitled.
5. Integrated Agreement; Relationship to Other Related Agreements and
Documents. This Agreement, including the Recitals and all Attaclunents (which are hereby
incorporated by reference), together with the Development Agreement, including the Recitals
and all Exhibits thereto, contains the entire agreement between the Parties with respect to the
subject matter hereof, supersedes whatever oral or w1itten understanding they may have had
prior to the execution of this Agreement and the Development Agreement. In the event of any
express conflict between this Agreement and the Development Agreement, the provisions of the
Development Agreement shall control. No waiver, alteration, modification, or tennination of
this Agreement shall be valid unless made in writing and signed by the authorized Parties hereof.
6. Notices. All notices required pursuant to this Agreement shall be in writing and
may be given by personal delivery or by registered or certified mail, return receipt requested , to
the Pmty to receive such notice at the addressed set forth below:
TO THE CITY :
City of Cupertino
Office of City Attorney
10300 Torre Avenue
Cupe1tino , CA 95014
TO THE DEVELOPER:
Albert Wang
Cupertino 10145 , LLC.
4546 El Camino Real, Suite 222
Los Altos, CA 94022
7. Each Pmty's Role in Drafting the Agreement. Each Pmty to this Agreement has
had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of
· the Agreement, and negotiate revisions to the Agreement. This Agreement shall be deemed to be
jointly prepared by both of the Pmties hereto, and any ambiguities or uncertainties herein shall
not be coi1strued for or against either of the Parties hereto. The words "including," "included,"
"include" and words of similar imp01t shall be not be interpreted as words of exclusion but shall
instead be interpreted as though followed by the words "but not limited to" or "without
limitation." No waiver by City of any breach or default of any provision of this Agreement shall
be deemed a waiver of any other provision hereof or of any subsequent breach or default by
Developer of the same or any other provision. The invalidity of any provision of this Agreement
as detennined by a comt of competent jurisdiction shall in no way affect the validity of any other
provision hereof.
Exhibit F-3
8. Wa1Tanties. The Parties represent and wa1Tant that each has the full right, power
and authority to ca1Ty out its obligations under this Agreement. The individuals executing this
Agreement on behalf of the Paiiies represent and warrant that they have full power and authority
t o execute and deli ver this Agreement on behalf of such Party.
9. Agreement Binding _ on Successors and Assigns. All prov1s10ns of this
Agreement, including the benefits and burdens, are equitable servitudes, run with the Hotel
Parcel and are binding upon the heirs , executors, successors, assigns and personal representatives
of Developer and inure to the benefit of City and its successors and assigns. Each and every
contract, deed or other instrument cove1ing, conveying or otherwise transfening the Hotel Parcel
or the Hotel or any portion thereof or interest therein shall conclusively be held to ha ve been
executed, delivered and accepted subject to this Agreement.
10 . No Third Paiiy Benefi~j~ries. This Agreement shall not be deemed to create any
third-party b eneficiary 1ights for any person or entity.
11. Aruilicable Law. This Agreement shall be governed by California law. The
proper venue for any legal action brought under this Agreement shall be the Supe1ior Court for
Santa Clara County, California, except for actions that include claims in which the United States
Distiict Court for the Northern District of the State of California has original jmisdiction, in
which case the Northern Distiict of the State of California shall be the proper venue.
12. Prevailing Pa1iy 's Fees and Costs. In the event any action is brought by either
Pmiy hereto as against the other Party hereto for the enforcement or declaration of any right or
remedy in or under this Agr eement or for the breach of any covenant or condition hereof, the
prevailing Party shall be entitled to recover, and the other Party agrees to pay, all fees and costs
to be fixed by the comi therein including, but not limited to , reasonable attorneys' fees and costs.
13. Severability. In the event any limitation, condition, rest1iction, covenant, or
provision contained in this Agi-eement is to be held invalid , void or unenforceable by any court
of competent jmisdiction, the remaining po1iions of this Agreement shall nevertheless be and
remain in full force and effect.
14. Recording of Agreement. This Agreement shall be recorded against the Hotel
Parcel in the Official Records of the County of Santa Clara concuffent with the recordation of the
Development Agreement.
15. Title of Parts and Sections. Any titles of the sections, subsections, or
subparagraphs of this Agreement are inse1ied for convenience of reference only and shall be
disregarded in interpreting the Agreement.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an 01iginal , but all of which together shall constitute but one and the same
instrument.
[Signatures on Following Page}
Exhibit F-4
IN WITNESS WHEREOF, the Patiies hereto have executed this Agreement the day and
year first above written.
ATTEST:
By:
Grace Schmidt, City Clerk
APPROVED AS TO FORM:
By:
Randolph Stevenson Hom, City
Attorney
CITY:
CITY OF CUPERTINO, a municipal corporation
By: FORM -DO NOT SIGN
David Brandt, City Manager
/Signature must be notarized/
DEVELOPER:
CUPERTfNO 10145 , LLC, a California limited
liability company
By:
Exhibit F-5
Albert Wang, Managing Member
/Signatures must be notarized/
ATTACHMENT 1
HOTEL PARCEL DESCRIPTION
10145 NORTH DE ANZA BOULEVARD (APN 326-034-043)
All that certain Real Property in the City of Cupertino , County of Santa Clara, State of
California, described as follows:
PARCEL ONE:
LOT 1, AS SHOWN ON THAT CERTAIN MAP ENTITLED , "TRACT NO. 5162", WHICH
MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY
OF SANTA CLARA, STATE OF CALIFORNIA, ON MAY 2 , 1972, IN BOOK 300 OF MAPS
AT PAGES 26 AND 27.
PARCEL TWO:
AN EASEMENT FOR INGRESS AND EGRESS OVER A STRIP OF LAND 14 .50 FEET IN
WIDTH THE EASTERLY AND N ORTHERLY LINES OF WHICH ARE MORE
PARTICULARLY DESCRIBED A.S FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF THE ABOVE DESCRIBED LOT;
THENCE FROM SAID POINT OF BEGINNING AND ALONG THE GENERAL WESTERLY
BOUNDARY LINE OF SAID LOT NORTH 0°01 '04 " WEST, 142.71 FEET AND SOUTH
89 °58 '56" WEST, 27 .00 FEET AND THE TERtvlINUS OF THE LINES DESCRIBED
HEREIN.
Attac hm en t 1 to Exh ibit F
[Notary Acknowledgements To Be Inse1ied]
Acknowledge ment s
EXHIBITG
ANNUAL REVIKW FORM
This Annual Review Fonn is submitted to the City of Cupe1iino ("City") by Cupe1iino
l O 145, LLC, a California limited liability company, and Maiina Plaza, LLC, a California limited
liability company, ( collectively "Developer") pursuant to the requirements of California
Govenunent Code section 65865.1 and Chapter 18.245 of the City's Municipal Code regarding
D~veloper's good faith compliance with its obligations under the Development Agreement
between the City and Developer having an Effective Date of October 20, 2016 ("Development
Agreement"). All Aliicle and Section references are to the Development Agreement. Any
capitalized terms not othe1wise defined herein shall have the meanings assigned to them in the
Development Agreement.
Annual Review Pe1iod: to -----------------
Generally smmnarize the status of Developer's efforts and progress in processing,
constructing and leasing residential apartment units allocated under the Development
Agreement.
Generally summarize specific strategies to be followed in the coming year intended to
facilitate the processing of pennits and or Project construction.
Specify whether Developer's compliance with any of the following agreements have
b een s atisfied durin g this amrnal review period:
• Affordable Housing Agreement under Section 3 .12.
Specify whether applicable Exis tin g Impact Fees, Processing Fees, Connection Fees
and /or other fees due and payable under Miele 4 have been paid during this ammal review
period, including but not limited to the following:
• Housing Mitigation Fees under Section 4.1.1.
• Park Impact Fees under Section 4 .1.1.
• Public Ali Contribution under Section 4 .1.3 .
• Transportation Impact Fees under Section 4.1 .4 .
Desc1ibe whether Developer's compliance with any of the following public benefits
under Article 5 have been satisfied dming this annual review period:
• School District Agreement pursuant to Section 5 .1.1.
• Public Improvements Agreement pursuant to 5.1.3
• TDM Program and TMA Payment pursuant to Section 5.1.2 .
Exhib it G-1
• Business License pursuant to Section 5.2.
• Sales Tax Point of Sa:le Designation under Section 5.3.
• Agreement to be Recorded pursuant to Section 5.4.
Describe whether other applicable Development Agreement obligations were completed
dming this annual review pe1iod.
Specify whether Developer has assigned the Development Agreement or otherwise
conveyed the Prope1iy dming this annual review period.
The undersigned representative confirn1s that Developer is:
___ In good faith compliance with its obligations under the Development Agreement for this
annual review period.
Not in good faith compliance with its obligations under the Development Agreement for
this annual review period , in response to which Developer is taking the actions set forth in the
attachment hereto.
IN WITNESS WHEREOF, Developer has executed this Annual Review Fann as of this
___ day of ___ , 20_
CUPERTINO 10145, LLC:
CUPERTINO 10145, LLC, a California limited
liability company
By:
Name:
Its:
MARINA PLAZA, LLC:
MARINA PLAZA, LLC, a California limited
liability company
By:
Name:
Title:
Exhibit G-2
EXHIBITH
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
Exempt from Recording Fee per
Guvernment Code Section 27383
Space Above This Lin e for Recorder 's Use Only
ASSIGNMENT OF RIGHTS AND OBLIGATIONS UNDER
DEVELOPMENT AGREEMENT FOR MARINA PLAZA
This Assigm11ent of Rights and Obligations Under Development Agreement (this
''Ass ignment") is entered into this ____ day of ____ , 20_ ("Effective Date"),
by an d between _____________________ , a ___ _
("A ssignor") and _ ___ ----------------·----·'a ________ _
(" Ass ignee"). Assignor and Assignee are collectively referred to herein as the "Parties."
RECITALS
A. A ssi gnor and the City of Cupertino, a California municipal corporation ("City")
have entered into that certain Development Agreement dated as of October 20, 2016 ("DA")
which was recorded in the Official Records of Santa Clara County on ______ , 2016 as
Instrument No . ----·-----
B . Assignor [has requested approval from the City of the assigmnent to Assignee
described herein pursuant to Section 10 .1 of the DA] [has the 1ight to make the assigmnent to
Assignee under Section 10.1 of the DA.]
C. [City has consented to the assignment described herein pursuant to Section 10.1
of the DA.] [Assignor has provided the City with documentation establishing that the assigmnent
is appropriate pursuant to Article 10 of the DA because ________ .]
AGREEMENTS
NOW, THEREFORE, in exchange for the mutual covenants set forth herein and for other
good and valuable consideration, the receipt and s ufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
Exhibit H--1
1. Assignment and Assumption of Interest
Assignor hereby transfers , assigns and conveys to A s signee, all of Assignor 's right, title
and interest in and to , and all obligations , duties, responsibilities , conditions and restrictions
under, the DA (the "Rights and Obligations"). Assignee, for itself and its successors and
assigns , hereby accepts the foregoing assignment, assumes all such Rights and Obligations, and
expressly agrees for the benefit of City, to pay, perfonn and discharge all obligations of Assignor
under the DA and to comply with all covenants and conditions of Assignor arising from or under
the DA.
2. Governing Law; Venue
This Assigmnent shall be interpreted and enforced in accordance with the laws of the
· State of California without regard to principles of conflicts of laws. Any action to enforce or
interpret this Assigmnent shall be filed and litigated exclusively in the Superior Court of Santa
Clara County, California or in the Federal District Court for the Nmihern District of California.
3 . Entir~eement/ Amendment
This A s sigmnent constitutes the entire agreement among th e Parties with respect to the
subject matter hereof, and supersedes all prior written and oral agreements with respect to the
matters covered by this Assigmnent. This Assigm11ent may not be amended except by an
instrument in writing signed by each of th e Parties and consented to in w1iting by City .
4. Fmiher A s surances
Each Patiy shall execute and deliver such other ce1iificates , agreements and documents
and take such other actions as may be reasonably required to consununate or implement the
transactions contemplated by this Assigmnent and the DA.
5 . Benefit and Liability
Subject to the restrictions on transfer set forth in the DA, this Assigmnent and all of the
tenns, covenants , and conditions hereof shall extend to the benefit of and be binding upon the
respecti ve successors and pennitted assigns of the Patiies.
6. Rights of City
All 1ights of City under the DA and all obligations to City under the DA which were
enforceable by City against As signor p1ior to the Effective Date of this Assigmnent shall be fully
enforceable by City against Assignee from and after the Effective Date of this Assigmnent.
Exhibi t H-2
7. Rights of As.fil_@ee
All rights of Assignor and obligations to Assignor under the DA which were enforceable
by Assignor against City prior to the Effective Date of this Assigmnent shall be fully enforceable
by Assignee against City from and after the Effective Date of this Assignment.
8. Release ---
As of the Effective Date, Assignor hereby relinquishes all rights under the DA, and all
obligations of Assignor under the DA shall be tern1inated as to, and shall have no more force or
effect with respect to, Assignor, and Assignor is hereby released from any and all obligations
under the DA.
9. Attorneys' Fees
In the event of any litigation pe1iaining to this Assigmnent, the losing Paiiy shall pay the
prevailing Pa1iy's litigation costs and expenses , including without limitation reasonable
attorneys' foes.
City's countersignature below is for the limited purposes of indicating consent to the
a ssignment and assumption and release set fo1ih in this Assignment (if necessary under the DA)
purs uant to Sections 10 .1 and 10.2 of the DA, and for clarifying that there is privity of contract
between City and Assignee with respect to the DA . The City is an intended third-party
b eneficiary of this Assigmnent, and has the right, but not the obligation, to enforce the provisions
hereof.
11. Recordation
Assignor shall cause this Assigmnent to be recorded in the Official Records of Santa
Clara County, and shall promptly provide confonned copies of the recorded Assigmnent to City
and A s signee.
12. Address for Notices
Assignee's address for notices, demands and communications under the DA is as follows:
[ADDRESS]
13. Captions; Inte_mretation
The section headings used herein are solely for conv enience and shall not be used to
interpret this Assigmnent. The Paiiies acknowledge that this Assigm11ent is the product of
Exhibit H-3
negotiation and compromise on the pati of both Parties, and the Patiies agree, that since both
have participated in the negotiation and drafting of this Assignment, this Assignment shall not be
construed as if prepared by one of the Patiies, but rather according to its fair meaning as a whole,
as if both Patiies had prepared it. ·
14. Severability
If any tenn, provision, condition or covenant of this Assigmnent or its app lication to any
party or circumstances shall be held by a court of competent jurisdiction, to any extent, invalid or
unenforceable, the remainder of this Assignment, or the application of the tenn, provis ion,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent pennitted by law unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
15. Counterparts
This Assigmnent may be executed in counterpatis, each of which shall, irrespective of the
date of its execution and delivery, be deemed an original, and the counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF Assignor and Assignee have executed this Assignment as of
the date first set forth above .
ASSIGNOR:
By: FORM -DO NOT SIGN
Name: ----------------
Its:
ASSIGNEE:
By: FORM -DO NOT SIGN
Name: -----------------
Its:
[NOTE: The presence of the signature blocks below in this fonn shall not be deemed to require
the consent of the City to any assigmnent that does not otherwise require the consent of City
under the DA.]
[City Signatures on Following Page}
Exhibit H-4
City of Cupe1iino , a· California municipal corporation , hereby consents
to the ass ignment and assumptio n desc1ibed in the foregoing
Assignment and Assumption Agreement.
CITY:
CITY OF CUPERTINO ,
California municipal corporation
By: FORlVI -DO NOT SIGN
_________ , City Manager
ATTEST:
--·----·-
__ , C it y Clerk
APPROVED AS T O FORM:
----·--·--·-------
----··-----·-----' City Attorney
Exh ib it H-5
[Notary Acknowledgements To Be Inserted]
Acknowledgements
VERIFICATION
I have reviewed this Development Agreement and to the best of my knowledge, the
information contained herein is true and complete.
I verify under penalty of perjury under the laws of the State of California, that the foregoing is
true and correct.
Executed on the 1st day of November, 2016, at Cupertino, California.
Lauren Sapudar
Senior Office Assistant