20-104 Amendment #1 dated 5-9-24 Northwest Properties LP, Development Agreement, De Anza 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 Code
Section 27383
25634618
Regiria Qlcomendras
Santa Clara County - Clerk-Recorder
e5/el9/zo24 03:21 Prl
Titles: 1 Pages : 7
Fees : $9!1. DO
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Space Above Reserved for RecordeYs Use Only
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY
OF CUPERTINO AND NORTHWEST PROPERTIES FOR THE DE ANZA HOTEL
PROJECT
This First Amendment to Development Agreement ("Amendment No. 1") is made
by and between the CITY OF CUPERTINO, a municipal corporation (the "City") and
Northwest Properties, a California Limited Partnership ("Developer"), and is dated for
reference purposes as of April 16, 2024.
RECIT ALS
A. City and Developer entered into a Development Agreement dated April
21, 2020 and recorded in the Official Records against certain property described in
A (the "Project Site") identified as Document No. 24514911 ("Development Agreement"),
Any capitalized term used in this Amendment No. I that is not defined will have the
meaning given to such term in the Development Agreement.
B. The Parties acla"iowledge 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 Five Hundred Thousand Dollars
($500,000.00) in installments as described below, for City's use in the City Council's
discretion subject to the following suggested guidelines ("Community Amenity
Payment"), which payment shall be in addition to any Impact Fees otherwise due. Once
paid, each installment of the Community Amenity Payment shall be nonrefundable,
except as provided in Section 5.1.1.1 below.
5.1.1,1 The Community Amenity Payment shall be made in installments as follows:
(1) Within ninety (90) days after the Effective Date, Developer shall pay City a
first installment of the Community Amenity Payment in the amount of Fifty Thousand
Dollars ($50,000.00).
(2) On or before December 1st of each year, beginning on the first December
1st after the Effective Date, until the Community Amenity Payment is paid in full, as part
of each annual review and together with submission of the Annual Review Form,
Developer shall pay City an installment of the Community Amenity Payment in the
amount of Fifty Thousand Dollars ($50,000.00).
(3) In the event the Developer submits for a Building Permit for the core and shell
of the hotel within three (3) years of the Effective Date of the 1st Amendment, the Term
of the agreement is automatically extended for two additional years, for a total of five
years. Otherwise, the Term is only extended for three years.
(4) If Certificate of Occupancy for the Project is issued within five (5) years of the
Effective Date of the First Amendment, Developer shall be relieved of its obligations to
make further payments under Section 5.1.1.1. Nothing in this section shall constitute a
refund of prior payments made under this Development Agreement.
(5) In the event of a Litigation Challenge (described below in Section 9.3), all
unpaid Community Amenity Payment installments shall be postponed until final
resolution of the Litigation Challenge."
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 and Applicable Law. If the City Manager or his/her designee finds, in his Or
her sole discretion, that the proposed amendment or modification is minor, consistent
with this Agreement and Applicable Law, and will result in no new significant impacts
not addressed and mitigated in the MND, the amendment or modification shall be
determined to be an "Administrative Project Approval Amendment" and shall not
require an amendment to this Agreement. Upon the City Manager's approval, any
Administrative Project Amendment shall be automatically incorporated into the
applicable Project Approvals and this Agreement. Without limiting the foregoing, and
by way of example, after City approval of the Existing Approvals, Developer requests for
lot line adjustments, minor changes in improvement plans, minor changes in land uses
involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle
access points, changes in the amount of parking and parking layout, changes in pathway
alignments, substitutions of comparable landscaping for any landscaping shown on any
final development plan or landscape plan, variations in the location of structures that do
not substantially alter the infrastructure connections, facilities that do not substantially
alter the design concepts of the Project, and minor adjustments to the Site Map or
Property Description may be treated as Administrative Project Amendments."
5.MISCELLANEOUS. -
a. Incorporation. This Amendment No. I 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. I and the Development Agreement, the provisions contained in this
Amendment No. I shall control. As amended by this Amendment No. 1, all terms,
covenants, conditions, and provisions of the Development Agreement shall remain in full
force and effect.
d. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of California.
e. Integration. This Amendment No. 1 contains the entire agreement
between the Parties with respect to the subject matter of this Amendment No. 1. Any
prior correspondence, memoranda, agreements, warranties, or representations relating
to such subject matter are superseded in total by this Amendment No. 1.
NOW THEREFORE, the parties hereto have executed this Amendment No. 1 as of
the date set forth above.
[SIGNAmRES ON FOLLOWING PAGEI
IN WITNESS WHEREOF, the City and Developer have executed this
Agreement as of the Effective Date.
CITY:
CITY OF CUPERTINO, a municipal
corporation
By:
' -ela Nu, City Manager
[Signature must be notarizedJ
ATTEST:
!:-'or Kirsten Squarcia, City Clerk
APPRO TO RM-
Attorney
DEVELOPER:
NORTHWEST PROPERTIES,
a California limited partnership
By:
Name
By:
Name
[Sigrtatures must be notarizedl
.
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CALIFOR_NIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT ,
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State of Califoiia
I County of Santa Clara %
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wEiEh theJe3o-A(s) acted, executed the instniment.
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is true and correct.
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On ffQ 'D;"""ote 2-'1
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