Loading...
19-183 Amendment #1 dated 5-13-24 Development Agreement, Cupertino Village Boutique HotelRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 Attention: City Manager Record for the Benefit of The City of Cupertino Pursuant to Government Corte Section 27383 25635362 Regina Alcomendras Santa Clara County - Clerk -Recorder 05/13/2024 09:37 AM Titles: 1 Pages: 7 Fees: 10.00 0.00 Taxes: 0 Total: III FlfV71 M Y A 111 v, TIN , A11*1 141 11111 Space Above Reserved for Recorder's Use Only FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY OF CUPERTINO AND CUPERTINO VILLAGE LP FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL This First Amendment to Development Agreement ("Amendment No. 1") is made by and between the CITY OF CUPERTINO, a municipal corporation (the "City") and Cupertino Village LP, a California Limited Partnership ("Developer"), and is dated for reference purposes as of April 16, 2024. RECITALS A. City and Developer._enteled,___ November 19, 2019 and recorded in the Official Records against certain property described in Exhibit A (the "Project Site") identified as Document No. 24351308 ("Development Agreement")., Any capitalized term used in this Amendment No.1 that is not defined will have the meaning given to such term in the Development Agreement. B. The Parties acknowledge that Developer has performed all obligations required under the Development Agreement as of the date of this Amendment No. 1, including providing payments as described in Section 5.1.1.1. C. The Parties now wish to amend the Development Agreement as set forth below. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1. TERM OF AGREEMENT. Section 2.2 of the Development Agreement is hereby revised and restated as follows: "The 'Term' of this Agreement shall commence on the Effective Date and shall expire on the eight (8th) anniversary of the Effective Date, unless earlier terminated or extended by mutual written consent of the Parties hereto in accordance with the requirements of Section 8.1, below." 2. DEVELOPMENT OF THE PROPERTY. The Development Agreement shall be amended to include a new Section 3.4.2.1, which shall read as follows:: "Developer agrees to comply with the bird safe and dark sky ordinance, Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards." 3. COMMUNITY AMENITY FUNDING. Subsection 5.1.1 of the Development Agreement is hereby revised and restated as follows: "Community Amenity Funding. Developer agrees to pay City Ten Thousand Dollars ($10,000.00) for each hotel room constructed for an estimated total of One Million Eight Hundred Fifty Thousand Dollars ($1,850,000.00) in installments as described below, for City's use in the City Council's discretion subject to the following suggested guidelines ("Community Amenity Payment"), which payment shall be in addition to any Impact Fees otherwise due. Once paid, each installment of the Community Amenity Payment shall be nonrefundable, except as provided in Section 5.1.1.2 below. In the event City actions or conditions (including, but not limited to, conditions of the _..,....__ .___._.._____Project--Appr--ovals;-interpr-etati-ons_of-City-ordinances,_regulations_._and/or--policies---- ___._.__ ._._._.. and imposition of applicable building code requirements) regarding the Project Approvals cause the Project to be finally approved with fewer than 185 hotel rooms, the total Community Amenity Payment shall be Ten Thousand Dollars ($10,000.00) multiplied by the number of hotel rooms approved for construction; provided, the Community Amenity Payment shall not be reduced if Developer elects to voluntarily reduce the number of hotel rooms. 5.1.1.1 The Community Amenity Payment shall be made in installments as follows: (1) Within ninety (90) days after the Effective Date, Developer shall pay City a first installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00). (2) On or before December 1st of each year, beginning on the first December 1st after the Effective Date, , as part of each annual review and together with submission of the Annual Review Form, Developer shall pay City an installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00). (3) In the event the Developer submits for a Building Permit for the core and shell of the hotel within three (3) years of the Effective Date of the 1s' Amendment, the Term of the agreement is automatically extended for two additional years, for a total of five years. Otherwise, the Term is only extended for three years. (4) If Certificate of Occupancy for the Project is issued within five (5) years of the Effective Date of the First Amendment, Developer shall be relieved of its obligations to make further payments under Section 5.1.1.1. Nothing in this section shall constitute a refund of prior payments made under this Development Agreement. (5) In the event of a Litigation Challenge (described below in Section 9.3), all unpaid Community Amenity Payment installments shall be postponed until final resolution of the Litigation Challenge." 4. ADMINISTRATIVE PROTECT AMENDMENTS. Subsection 8.2.1 of the Development Agreement is hereby revised and restated as follows: "Upon Developer's written request for an amendment or modification to the Project Approvals or Subsequent Approvals, the City Manager shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement andw_Applicable_Law _If_the _City _Manager.or his/her desgneeflnds, in,_h her sole discretion, that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the MND, the amendment or modification shall be determined to be an "Administrative Project Approval Amendment" and shall not require an amendment to this Agreement. Upon the City Manager's approval, any Administrative Project Amendment shall be automatically incorporated into the applicable Project Approvals and this Agreement. Without limiting the foregoing, and by way of example, after City approval of the Existing Approvals, Developer requests for lot line adjustments, minor changes in improvement plans, minor changes in land uses involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle access points, changes in the amount of parking and parking layout, changes in pathway alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the infrastructure connections, facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Site Map or Property Description may be treated as Administrative Project Amendments." 5. MISCELLANEOUS. a a. Incorporation. This Amendment No. 1 constitutes a part of the Development Agreement and any reference to the Development Agreement shall be deemed to include a reference to the Development Agreement as amended by this Amendment No. 1. b. Effective Date. This Amendment No. 1 shall be effective on the date that it is signed by both Parties and recorded in the Official Records. C. Ratification. To the extent of any inconsistency between this Amendment No. 1 and the Development Agreement, the provisions contained in this Amendment No. 1 shall control. As amended by this Amendment No. 1, all terms, covenants, conditions, and provisions of the Development Agreement shall remain in full force and effect. d. Governing Law. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of California. e. Integration. This Amendment No. 1 contains the entire agreement between the Parties with respect to the subject matter of this Amendment No.. 1. Any prior correspondence, memoranda, agreements, warranties, or representations relating to such subject matter are superseded in total by this Amendment No. 1. NOW THEREFORE, the parties hereto have executed this Amendment No.1 as of [SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date. ATTEST: . or Kirsten Squarcia, City Clerk APPROVED F 7/By: Christopher D. J en, City Attorney CITY: CITY OF CUPERTINO, a municipal corporation l By: , Pamfla Wu, City Manager [Signature must be notarized] \Califor ER: See, 0-VOCVv , O VILLAGE LP, `' 1 jjp4ted partnership N Its: By: Name s CA I ts: Lee [Signatures must be notariz A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Santa Clara On May2,,2024 before me, Lauren Sapudar , Notary Public, (Here insert name and title of the officer) personally appeared Pamela Wu who proved to me on the basis of satisfactory evidence to be th er (s) whose 01(s) (Ware subscribed to the within instrument and acknowledged to me that he/4'Lf�eAey executed the same in his their authorized apac' ies), and that by his/(their nxe s) on the instrument the rso ja s), or the entity upon behalf of which the p rso ) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. -.-u.:.:.�::: yam• , :, LAUREN SAPUDAR WITN S m hand and official seal. _ Notary a Clara • C County is y � $ Santa Clara County Commission # 2409321 •r "� My Comm, Expires Jun 28, 2026 igna of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbtagiMA es riot reduire the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefudly for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/shekhe�,%- is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection,ofdocument recording. • 'the 'notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seat if a sufficient area permits, otherwise complete a difTerent acknowledgment form. • 'Signature of the notary public must match the signature on file with die office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document C 2004-2015 ProLink Signing Service,Inc.— All Rights Reservedo v.TheProLiak.conn— Nationscide Notary Service DEVELOPER: CUPERTINO VILLAGE, LP, a Delaware limited partnership By: KRCX California Realty, LLC, its general partner By: C/"-- Na Jason Lee Title: Vice President A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) SS: COUNTY OF ORANGE ) On *�A 7 -Q 0.--z �( , before me, 1Gf�j i�c s CGKytc�� — a Notary Public in and for sai State, personally appeared Jason Lee, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. PHYLLIS A, MACKNIGHT W Notary Public - California z a Orange County > Commission # 2442263 My Comm, Expires Apr 22, 2027 A WITNESS my.hand and official seal. I Signature of Notary This"is to �erti thatAhm is' ,a true copy of the d©c, m—Ont MAY 3 202 on file in this office= ATTEST: . COUNTY CLERK -RECORDER SANTA CLARA COUNTY, CALti=ORNiA