MAHA and Declaration - Executed for Recordation 2.21.25NO CHARGE ON THIS DOCUMENT
FOR THE BENEFIT OF THE CITY OF
CUPERTINO
Recording Requested By And When
Recorded Mail To:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attention: City Manager
MASTER AFFORDABLE HOUSING AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS
This MASTER AFFORDABLE HOUSING AGREEMENT AND DECLARATION
OF RESTRICTIVE COVENANTS ("Agreement") is made as of this "- I day of
FCBXtA- J , 2025, by and between Vallco Property Owner LLC, a Delaware limited
liability company ("Master Developer") and the City of Cupertino, a municipal corporation
("Cily") (each individually a "Earty" and together the "Parties"), with reference to the following
facts.
RECITALS
A. Defined terms used but not defined in these recitals are as defined in Article 1 of
this Agreement.
B. Master Developer owns and is developing the real property commonly known as
"The Rise" in the City of Cupertino, County of Santa Clara, (APNs 316-20-121 and 316-20-
122), more particularly described in Exhibit "A" attached hereto ("Pro e ").
C. Master Developer has applied for and received approval from the City for a
housing development project utilizing provisions of Government Code Section 65913.4 ("SB
35"); and both Government Code Section 65915 and Cupertino Municipal Code Chapter 19.56
("Density Bonus Law"). The housing development project is more particularly described in
Exhibit "B" attached hereto (the "SB 35 Project").
D. The City has adopted a Below Market Rate Housing Program (Cupertino
Municipal Code Chapter 172) and implementing guidelines contained in the BMR Housing
Mitigation Program Procedural Manual) (collectively the "City BMR Program") which requires
that all new housing developments containing more than seven units include affordable units as
specified in the City BMR Program.
E. To comply with SB 35, Density Bonus Law, and the City BMR Program, the SB
35 Project must contain Affordable Housing Units that meet all three requirements, as more
particularly described in Exhibit B. An Affordable Housing Unit may meet the requirements of
SB 35, Density Bonus Law, and the City BMR Program, so long as it meets the most restrictive
requirement of each of the programs it satisfies.
F. The residential portion of the SB 35 Project is anticipated to be completed over a
series of "Development Phases" (as defined below), with each Development Phase containing a
portion of the total Affordable Housing Units and Market Rate Units for the SB 35 Project, and
with the cumulative total of Development Phases containing all of the Affordable Housing Units
and Market Rate Units for the SB 35 Project.
G. SB 35, Density Bonus Law, the City BMR Program, and the SB 35 Project
approval require the City to ensure the continued affordability of the Affordable Housing Units
for the Term. To ensure their continued affordability for the Term and to comply with SB 35,
Density Bonus Law, the City BMR Program, and the SB 35 Approval, 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 the first Building Permit for vertical construction of the SB 35
Project, whichever occurs first.
H. The Parties recognize that the Master Developer may request modifications to the
SB 35 Project from time to time, including modifications permitted by AB 3122 (Chapter 754,
Statutes of 2024). The Parties intend for this Agreement to continue to govern any such modified
project that alters the affordable housing program in conformance with SB 35, Density Bonus
Law, and the City BMR Program. Exhibit B may be modified from time to time with the written
approval of the Parties to reflect any such modified SB 35 Project approved by the City.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, Master Developer and the City hereby agree 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.
1. Definitions. The following terms shall have the meanings ascribed to them in this Section
1. Other terms are defined in the introductory paragraph, in the Recitals, and in other provisions
of this Agreement.
(a) Affordable Housing Units. "Affordable Housing Units" means any of the units in
the SB 35 Project provided to comply with affordable housing requirements of SB 35, Density
Bonus Law, or the City BMR Program.
(b) Affordable SB 35 Project. "Affordable SB 35 Project" means any apartment
building containing Affordable Housing Units and located within the SB 35 Project, it being
acknowledged and agreed that Affordable Housing Units within the SB 35 Project may be
located within "Affordable SB 35 Projects" in which up to 100% of the residential rental units
are Affordable Housing Units (other than unrestricted manager's units).
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(c) Affordable Rent. "Affordable Rent" is the maximum allowable Rent for an
Affordable Housing Unit, as follows:
(1) Affordable Rent for an Affordable Housing Unit affordable to Low Income
Households and provided to satisfy the requirements of the City BMR
Program or Density Bonus Law is equal to one -twelfth of thirty (30) percent
of sixty (60) percent of Area Median Income, adjusted for household size,
determined in accordance with Section 50053 of the Health & Safety Code;
provided, the City does not require that "Affordable Rent" for lower income
households with gross incomes exceeding sixty (60) percent of Area Median
Income be established at a level that exceeds thirty(30) percent of sixty (60)
percent of Area Median Income.
(2) Affordable Rent for an Affordable Housing Unit affordable to Very Low
Income Households and provided to satisfy the requirements of the City BMR
Program or Density Bonus Law is equal to one -twelfth of thirty (30) percent
of fifty (50) percent of Area Median Income, adjusted for household size,
determined in compliance with Section 50053 of the Health & Safety Code.
(3) Affordable Rent for an Affordable Housing Unit required by SB 35 and not
required to satisfy the requirements of the City BMR Program or Density
Bonus Law is Rent consistent with the maximum Rent levels for that income
level and assumed household size for a housing development that receives an
allocation of state or federal low-income housing tax credits from the
California Tax Credit Allocation Commission.
(d) Area Median Income. "Area Median Income" or "AMI" means the area median
income for Santa Clara County, as published and periodically updated by the California Housing
and Community Development Department ("HCD"), adjusted for assumed household size
(e) Building Permit(s). "Building Permit(s)" means a permit for the actual
construction of structure(s) containing Affordable Housing Units or Market Rate Units in the SB
35 Project. It is acknowledged that Building Permits do not include any permits issued for site
preparation construction work, which may include but is not limited to make-ready utility
installation, excavation, shoring and grading. and/or foundation installation.
(f) City Administration Manual. "City Administration Manual" means City's Policy
and Procedures Manual for Administering Deed Restricted Affordable Housing Units.
(g) Declaration. "Declaration" means the Affordable Housing Regulatory Agreement
and Declaration of Restrictive Covenants recorded in Senior Position against an Affordable SB
35 Project or Affordable SB 35 Projects within each Development Phase. Each Declaration shall
contain provisions requiring that the Affordable Housing Units are constructed, completed,
owned, operated, leased, rented, maintained, and occupied consistent with all provisions of this
Agreement and the SB 35 Approval, and shall be in a form reasonably acceptable to the Master
Developer and the City. Each Declaration shall be entered into by the owner or owners of the
Affordable SB 35 Project or Affordable SB 35 Projects located within a Development Phase.
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(h) Development Phase. "Development Phase" shall mean a phase of residential
development of the SB 35 Project which includes Affordable Housing Units and Market Rate
Units, subject to the requirements set forth in Section 2 below, it being agreed that each
Development Phase will contain a portion of the total Affordable Housing Units and Market Rate
Units for the SB 35 Project, and the cumulative total of Development Phases will contain all of
the Affordable Housing Units and Market Rate Units for the SB 35 Project.
(i) Low Income Households. "Low Income Households" means households with a
household income between fifty (50) percent and eighty (80) percent of Area Median Income,
adjusted for actual household size.
0) Low Income Units. "Low Income Units" means Affordable Housing Units
available at Affordable Rent to Low Income Households.
(k) Market Rate Units. "Market Rate Units" means the residential units that Master
Developer will develop on the Property that are not Affordable Housing Units and are permitted
as part of the SB 35 Project.
(1) Required Affordable Units. "Required Affordable Units" means the number of
Affordable Housing Units which, as of the date of issuance of the first Building Permit for any
particular Development Phase, Master Developer is required to construct in that Development
Phase.
(m) Rent-
(1) For the Affordable Housing Units provided to satisfy the requirements of the
City BMR Program, "Rent" includes monthly rent paid to the property owner,
utilities, and all fees for parking and other housing services. Fees for parking
shall be excluded from "Rent" if the Affordable Units are provided in a
building that also contains Market Rate Units and is not otherwise exempt
under the provisions of Civil Code Section 1947.1(e)(2). A reasonable utility
allowance, as determined by the tables published annually by the Santa Clara
County Housing Authority, shall be deducted from the maximum monthly
rents for those utilities paid by the tenant.
(2) For the Affordable Housing Units provided to satisfy the requirements of
Density Bonus Law, "Rent" means the total of monthly payments for: (a) use
and occupancy of a housing unit and land and associated facilities; (b) any
separately charged fees or service charges assessed by the lessor which are
required of all tenants, other than security deposits; (c) a reasonable utility
allowance, as determined by the tables published annually by the Santa Clara
County Housing Authority; and (d) possessory interest, taxes, or other fees or
charges assessed for use of the land and associated facilities by a public or
private entity other than the lessor.
(3) For the Affordable Housing Units provided to satisfy the requirements of SB
35, "Rent" is as defined in the TCAC Compliance Manual.
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(n) Senior Position. "Senior Position" means that the document is recorded against
the Affordable SB 35 Project such that it is senior in recording priority to all mortgages, deeds
of trust, and other monetary liens other than the lien for real property taxes and assessments.
(o) TCAC Compliance Manual. "TCAC Compliance Manual" means the compliance
manual issued by the California Tax Credit Allocation Committee.
(p) Term. "Term" means the period of time during which Affordable Housing Units
must remain affordable to the designated income group, equal to ninety-nine (99) years for
Affordable Housing Units provided to satisfy the requirements of the City BMR Program; and
fifty-five (55) years for Affordable Housing Units provided to satisfy the requirements of Density
Bonus Law and SB 35.
(q) Very Low Income Households. "Very Low Income Households" means
households with a household income at or below fifty (50) percent of Area Median Income,
adjusted for actual household size.
(r) Very Low Income Units. "Very Low Income Units" means Affordable Housing
Units available at Affordable Rent to Very Low Income Households.
2. Design, Construction and Occupancy Schedule for Affordable Housing.
(a) Timing of Construction of Affordable Housing Units; Affordable SB 35 Projects.
Pursuant to Municipal Code Section 19.56.050(F), Affordable Housing Units in the SB 35
Project, and in each Development Phase, shall be constructed concurrent with, or prior to, the
construction of the Market Rate Units in the SB 35 Project, and in each Development Phase, and
shall be completed during that Development Phase. With respect to Affordable Housing Units
located within one or more Affordable SB 35 Projects, such Affordable SB 35 Project or
Affordable SB 35 Projects shall be located as shown on a Development Phase map to be updated
by Master Developer from time to time and reasonably approved by the City's Director of
Community Development with respect to such map's consistency with the requirements set forth
in this Section 2. Within each Affordable SB 35 Project, the Affordable Housing Units provided
to satisfy the City BMR Program and Density Bonus Law shall each constitute the same
percentage of the total number of Affordable Housing Units as provided in the SB 35 Project
approval, unless a different mix of unit type is reasonably approved by the City's Director of
Community Development.
(b) Proportion of Affordable Housing Units in Each Development Phase. The total
percentage of Affordable Housing Units in each Development Phase shall equal the percentage
of Affordable Housing Units in the total SB 35 Project, but the number of Affordable Housing
Units in a Development Phase may be reduced as agreed by the Parties, so long as the next
Development Phase includes sufficient Affordable Housing Units to "rebalance" the cumulative
number of Affordable Housing Units in the prior Development Phases and the proposed next
Development Phase to the percentage of Affordable Housing Units in the SB 35 Project as a
whole. In the event that the SB 35 Project approval expires or is otherwise terminated before
the Affordable Housing Units are completed in the next Development Phase, Master Developer
shall pay City's adopted Below Market Rate Housing Mitigation In -Lieu Fees in an amount
equivalent to the number of Affordable Housing Units needed to constitute the required
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percentage of the total housing units previously constructed. This provision shall survive
termination of this Agreement.
(c) Quality of Construction of Affordable Housing Units. The square footage of the
Affordable Housing Units is not required to be equivalent to the Market Rate Units. Affordable
Housing Units shall be comparable to Market Rate Units in quality of exterior appearance and
overall quality of construction. Interior features and finishes shall be durable, of good quality,
and consistent with contemporary standards for new housing. If Affordable Housing Units are
provided in a building that also contains Market Rate Units, then, as required by Health & Safety
Code Section 17929, the tenants of those Affordable Housing Units shall have the same access
to the common entrances and to the common areas and amenities provided to tenants of the
Market Rate Units located in that building, and the Affordable Housing Units may not be isolated
to a specific floor or an area on a specific floor.
3. Recordation of Declaration and Release of Agreement. Upon issuance of the first
Building Permit in each Development Phase, the Master Developer or successor owner or owners
of that Development Phase shall execute, acknowledge, and deliver one or more Declarations to
the title company, which will cause the Declaration(s) to be recorded in Senior Position against
the Affordable SB 35 Project(s) included in that Development Phase. The Declaration or
Declarations for a Development Phase shall provide for the required number of Affordable
Housing Units applicable to that Development Phase and shall require that the Affordable SB 35
Project(s) are constructed concurrently with, or prior to, the Market Rate Units for such
Development Phase, and that the Affordable SB 35 Projects will be constructed, completed,
owned, operated, leased, rented, maintained, and occupied as Affordable Housing Units for the
Term, consistent with the provisions of this Agreement and the SB 35 Project approval. When
the Declaration or Declarations for a Development Phase are recorded and Building Permits are
issued and all required construction financing closes for the Affordable SB 35 Projects within
the Development Phase, the City shall execute a release of this Agreement for all of the parcel(s)
comprising that Development Phase in a form reasonably acceptable to the Master Developer
and the City.
4 Recordation. This Agreement shall be recorded against the Property in the Office of the
County Recorder for the County of Santa Clara in Senior Position; but subject to the release
provision of Section 3 above.
5. Indemnity. Master Developer agrees to indemnify, defend with legal counsel approved
by the City, and hold harmless the City, and any and all of its City Council, members, officers,
agents, servants, or employees (the "Indemnitees") from and against all claims, actions, liens,
claims of lien, losses, damages, costs, expenses, and proceedings brought by a third party,
whether direct or indirect, arising in any way from the default by Master Developer in the
performance of its obligations under this Agreement or arising in any way from entering into
this Agreement or related to the performance of this Agreement; provided, however, that Master
Developer shall not be required to indemnify, defend or hold harmless any of the Indemnitees
from claims, losses, damages, costs and expenses related to the gross negligence or willful
misconduct of any of the Indemnitees. The provisions of this Section 5 shall survive expiration
or other termination 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 5 shall remain in full force and
effect.
6. Property Management, Marketing Requirements. In accordance with Condition 5(e) of
the SB 35 Project approval, City and Master Developer have elected to adopt the use of a single
compliance manual to administer the Affordable Housing Units. The Affordable Housing Units
shall be managed in compliance with the requirements and procedures of the TCAC Compliance
Manual, with the following exceptions:
(a) All definitions, including, but not limited to, definitions of "Affordable Rent,"
"Area Median Income," "Low Income Households," "Rent," and "Very Low Income
Households," shall be as provided in this Agreement;
(b) Cupertino residents living in rental units with affordable housing covenants
expiring within one year shall be given the highest priority for occupancy of the Affordable
Housing Units, subject to applicable fair housing legal requirements; and
(c) Except as provided in subsection 6(b) above, the Affordable Housing Units shall
be marketed and rented in compliance with the "Priority Point Placement System" set forth in
the City Administration Manual, subject to applicable fair housing legal requirements. The
owner of an Affordable SB 35 Project shall maintain one set of marketing procedures and one
waitlist for prospective tenants for all of the Affordable Housing Units in that Affordable SB 35
Project.
7. Breach/Default. A Party's violation of any material term of this Agreement or failure by
any Party to perform any material obligation of this Agreement shall constitute a default
("Default"). If Master Developer is in Default under this Agreement, City shall not be obligated
to issue any permit of any type with respect to the Property until Master Developer cures the
Default.
(a) Notice and Procedure. The Party claiming breach (the "Complaining Party_") must
deliver to the other Party (the "Defaulting Party") a written notice of breach (the "Notice of
Default"). The Notice of Default must specify the reasons for the allegation of Default with
reasonable particularity. Within thirty (30) days the Defaulting Party must either: (a) use good
faith efforts to cure the breach or, if such cure is of the nature to take longer than 30 days, to
commence the cure within the 30-day period and to provide a schedule to the Complaining Party
for cure of the Default, not to exceed 90 days, or (b) if in the determination of the Defaulting
Party, the event does not constitute a breach of this Agreement, the Defaulting Party, within
thirty (30) days of receipt of the Notice of Default, must deliver to the Complaining Party a
notice which sets forth with reasonable particularity the reasons that a Default has not occurred.
Failure to respond within the thirty (30)-day period may not be deemed an admission of the
Default, but the Complaining Party may proceed to pursue its remedies under Section 7(b). After
conclusion of the thirty (30)-day period, or additional period if the cure is of the nature to take
longer than 30 days, the Complaining Party may declare a Default by providing written notice
to the Defaulting Party (the "Declaration of Default") and may proceed to pursue its remedies
under Section 7(b).
(b) Remedies. The Complaining Party may exercise any and all remedies available,
including but not limited to suits for specific performance and suits for declaratory or injunctive
relief. All of these remedies shall be cumulative and not exclusive of one another, and the
exercise of any one or more of these remedies shall not constitute a waiver or election with
respect to any other available remedy.
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8. Covenants to Run With the Land. The City and Master Developer hereby declare their
express intent that the covenants and restrictions set forth in this Agreement shall apply to and
bind Master Developer and its heirs, executors, administrators, successors, transferees, and
assignees having or acquiring any right, title or interest in or to any part of the Property and shall
run with and burden such portions of the Property until released in accordance with Section 3.
Until all or portions of the Property are expressly released from the burdens of this Agreement,
each and every contract, deed or other instrument hereafter executed covering or conveying 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, if
applicable, of all of the Affordable Housing Units, title to all or any portion of the Property shall
be taken subject to this Agreement. Developer acknowledges that compliance with this
Agreement is a requirement of SB 35, Density Bonus Law, the City BMR Program, and the SB
35 Project approval, and that no event of foreclosure or trustee's sale may remove these
requirements from the Property. Master Developer and City agree that, if a court of competent
jurisdiction determines that the obligations set forth herein do not qualify as covenants running
with the land, they shall be enforced as equitable servitudes.
9. Successors and Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto, and their respective heirs, successors and assigns. Master Developer
shall not sell, transfer or otherwise dispose of the Property or any legal parcel or condominium
comprising a portion thereof, unless: (a) the proposed transferee enters into a Declaration as
described in Section 3 hereof or (b) the proposed transferee shall have executed and delivered to
the City an express written assumption of all of Master Developer's obligations under this
Agreement as they relate to such acquired real property, on a form reasonably acceptable to the
City. The foregoing restrictions on sale and transfer shall not apply to the granting of easements,
rights -of -way, and similar conveyances in connection with the development of the SB 35 Project
which are not in the nature of a sale of one or more legal parcels. Upon assignment and
assumption by a successor entity, as approved by the City, Master Developer shall be released
from all further responsibility under the terms of this Agreement as to the subject parcel(s) so
conveyed, provided that Master Developer is not in default on the terms of this Agreement. The
successors, heirs and assigns of the Master Developer shall enter into and execute such other and
further documents as the City shall reasonably require, as from time to time, may be needed to
effectuate the affordable housing requirements of the SB 35 Project, TCAC Compliance Manual,
or Section 6 of this Agreement, as applicable, or as otherwise required or allowed by law.
10. Standing, Equitable Remedies; Cumulative Remedies. Master Developer expressly
agrees and declares that the City and its successors shall be the proper parties and shall have
standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce
the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the
fact that such damages or the detriment arising from such a default may have actually been
suffered by some other person or by the public at large. Nothing in this subparagraph, and no
recovery to the City, shall restrict or limit the rights or remedies of other persons or entities
against Master Developer in connection with the same or related acts by Master Developer.
Neither Master Developer, nor any tenant or occupant of the Property, nor any other third party,
shall have any claim or right of action against the City based on any alleged failure of the City
to perform or enforce the terms of this Agreement.
11. Certificate of Compliance. The City shall provide Master Developer upon request with
recordable evidence that a particular parcel(s) of real property within the SB 35 Project has
satisfied all applicable requirements under this Agreement, or has been developed in a manner
which makes this Agreement inapplicable thereto, and which instrument shall have the effect of
making this Agreement no longer a lien or encumbrance upon title to such parcel(s). Master
Developer shall provide all information and documentation necessary for the City to determine
whether all applicable requirements have been complied with and shall pay the City its
reasonable costs incurred in determining compliance and providing Master Developer with
recordable evidence of such.
12. Effective Period. This Agreement and the covenants and restrictions contained herein
shall, subject to the provisions above relating to release hereof, remain in effect as a lien and
charge against each legal parcel within the Property until released as provided in Section 3.
13. Severability. In the event that any provision or covenant of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, then it shall be severed from the
remaining portions of this Agreement which shall remain in full force and effect.
14. General Provisions.
(a) Integration. The undersigned, and each of them, acknowledge and represent that
no promise or inducement not expressed in this Agreement has been made in connection with
this Agreement. This Agreement contains the entire agreement and understanding between the
parties as to its subject matter.
(b) Waiver. 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 Master Developer or to pursue any remedy allowed under this
Agreement or applicable law. Any extension of time granted to Master Developer to perform
any obligation under this Agreement shall not operate as a waiver or release from any of its
obligations under this Agreement. Consent by the City to any act or omission by Master
Developer shall not be construed to be a consent to any other or subsequent act or omission or
to waive the requirement for the City's written consent to future waivers.
(c) Time of Essence. Time is expressly declared to be of the essence in this
Agreement, and of every provision in which time is an element.
(d) Captions. Paragraph titles and captions contained in this Agreement are inserted
as a matter of convenience and for reference and are not a substantive part of this Agreement.
(e) Further Assurances. The Parties each agree to sign any additional documents
which are reasonably necessary to carry out this Agreement or to accomplish its intent.
(f) Benefit and Burden. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, representatives, successors and assigns. This
Agreement is not intended to benefit any person other than the Parties hereto.
(g) Governing Law. This Agreement has been entered into in the State of California
and shall be interpreted and enforced under California law. Venue shall be Santa Clara County.
(h) Signatures. This Agreement may be executed in any number of counterparts and,
as so executed, the counterparts shall constitute one and the same Agreement. All individuals
signing this Agreement for a party which is a corporation, limited liability company, partnership
or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator,
or in any other legal capacity, covenant to the City that they have the necessary capacity and
authority to act for, sign and bind the respective entity or principal on whose behalf they are
sigmng.
(i) Amendment. Amendments to this Agreement consistent with SB 35, Density
Bonus Law, the Cupertino Municipal Code, and the SB 35 Project approvals shall be subject to
the review and approval of the City Manager. Any amendment to the SB 35 Project approval
shall be subject to the review and approval of the City Manager. No amendment may be approved
that is inconsistent with State law or the Cupertino Municipal Code. Upon approval, a new
Agreement or amendments to this Agreement, as appropriate, shall be executed and recorded.
The City Manager or designee is authorized to deliver such approvals or consents as required
under this Agreement.,
0) Notices. All notices given pursuant to this Agreement or law shall be written.
Notices shall be delivered with all delivery or postal charges prepaid. Notices may be given
personally; by United States first-class mail; by United States certified or registered mail; or by
other recognized overnight service. Notices shall be deemed received on the date of personal
delivery transmission; on the date shown on a signed return receipt or acknowledgment of
delivery; or, if delivery is refused or notice is sent by regular mail, seventy-two (72) hours after
deposit thereof with the U.S. Postal Service. Until a party gives notice of a change, notices shall
be sent to:
If to the City:
With a copy to
If to Master Developer:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attention: City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attention: City Attorney
Vallco Property Owner LLC
c/o Sand Hill Property Company
2600 El Camino Real, Suite 410
Palo Alto, CA 94306
With a copy to: Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, CA 94111
Attn: Ofer Elitzur, Esq.
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Any Parry may change the address to which notices are to be sent by notifying the other Parties
of the new address, in the manner set forth above.
(k) Mortgagees Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid
or in any way impair the lien or charge of any permitted deed of trust recorded on the Property
provided, however, that any subsequent owner of the Property shall be bound by the covenants,
conditions, restrictions, limitations and provisions of this Agreement, whether such owner's title
was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
(1) Actions of Parties to be Reasonable. Each Party to this Agreement agrees that it
shall act reasonably in granting or withholding any consent or approval required by this
Agreement or any other legal document executed in connection with this Agreement or in
connection with the development of the SB 35 Project, including in connection with any
applications for the funding or financing of the SB 35 Project.
(m) Each Party's Role in Drafting the Agreement. Each Party 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. Accordingly, neither Party shall rely
upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the
Agreement.
(n) Estoppel Certificate Either Party may, at any time, and from time to time, deliver
written notice to the other Party requesting such Party to certify in writing that, to the knowledge
of the certifying Party, (a) this Agreement is in full force and effect and is a binding obligation
of the Parties, (b) this Agreement has not been amended or modified or, if so amended or
modified, identifying the amendments or modifications, and (c) the requesting Party is not in
Default in the performance of its obligations under this Agreement, or if in Default, to describe
the nature of any Defaults. The City Manager shall be authorized to execute any certificate
requested by the Master Developer. Master Developer and City acknowledge that a certificate
hereunder may be relied upon by transferees and mortgagees. Master Developer shall provide
City with all information and documentation necessary for the City to be able to confirm whether
or not Master Developer is in Default and shall pay City reasonable costs to provide such
estoppel certificate.
[This Space Intentionally Left Blank]
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Docusign Envelope ID: B78A5846-0358-4434-8339-30D2B4BF5501
IN WITNESS WHEREOF, the Master Developer has caused this Agreement to be
executed as of the date first written above.
MASTER DEVELOPER:
VAI
a Dc
By:
Peter Pau, manager
CITY:
CITY OF CUPERTINO,
a municipal corporation
r'
By:
Pay e , City Manager
Approved as to form:
Signed by:
_�,�,V'tSfb�u,t,V' ,�t,tnrStrinr
i���t9�1'��9Fensen, City Attorney
Date: 2/21/202 5
12
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,�Ana ell AA
On Y( ?,0Z ,before me, �f�� %p Notary Public,
personally appeared it , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
KATIEYAO
Notary Public . California
z W Santa Clara County
Commission # 2426770
My Comm. Expires Dec 5, 2026
Name: !
Notary Public
13
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 9ATJTA G'LA-"
On >- ( Z I ( Zo Z j , before me, t �i , Notary Public,
personally appeared 7ifk& who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
04*4,
KATIE YAO Name: f-
Notary Public - California Notary Public 7�Santa Clara County�"Commission # 2426770
My Comm. Expires Dec 5, 2026 r
14
Exhibit "A"
Legal Description of the Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, IN THE COUNTY OF
SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
TRACT ONE:
PARCELI:
Parcel A, pursuant to Lot Merger, Recorded January 14, 2019, Instrument No. 24097490, of Official Records,
described as follows:
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of California, being all of
Parcel 1-A(2) and Parcel 1 C1(2) as shown on that certain Lot Line Adjustment recorded April 02, 2008 as Document
Number 19798059, together with Parcel One as described in that certain Deed recorded October 22, 2014, as
Document Number 22746588, all within the Official Records of Santa Clara County, more particularly described as
follows:
Beginning at the Northwest corner of said Parcel 1-C1(2), said corner also being the Southwesterly corner of Parcel
One as shown on that certain Parcel Map filed for record on January 09, 2013 in Book 858 of Maos at Page 41,
Santa Clara County Records;
Thence, along the Southerly line of said Parcel One (858 Maps 41) the following four (4) courses;
(1) North 88' 50' 57" East 303.11 feet;
(2) South 01.09' 03" East 53.51 feet;
(3) South 82' 53' 14" East 76.01 feet to the beginning of a tangent curve;
(4) Along said curve to the left, having a radius of 1368.73 feet through a central angle of 05° 21' 12",
for an arc distance of 127.88 feet to a point on the Easterly line of said Parcel 1-C1(2);
Thence, along said Easterly line the following four (4) courses, as said courses are shown on 858 M. 41;
(1) South 01 ° 20' 50" West 29.75 feet; (formerly North 01 ° 22' 22" East 29.66 feet per said Lot Line
Adjustment) to the beginning of a tangent curve;
(2) Along said curve to the right, having a radius of 100.00 feet, through a central angle of 18' 22' 11 ", for an
arc distance of 32.06 feet to a point of reverse curvature;
(3) Along a curve to the left, having a radius of 100.00 feet, through a central angle of 20' 48' 15", for an are
distance of 36.31 feet to a point of tangency;
(4) South 01.05' 14 East 1019.74 feet (formerly 1019.49 feet per said Lot Line Adjustment) to a point on the
Northerly line of said Parcel One (Doc. No. 22746588 O.R.);
Thence, along said Parcel One (Doc. No. 22746588 O.R.)the following four (4) courses;
(1) North 88' 54' 46" East 40.00 feet to the Westerly line of Wolfe Road, 119 feet wide;
(2) Along said Westerly line South 01. 05' 14" East 819.01 feet (formerly 819.02 feet per 22746588) to the
point of beginning of a tangent curve;
(3) Along said curve to the right having a radius of 60.00 feet, through a central angle of 90' 41' 14", for an
arc distance of 94.97 feet (formerly 94.96 feet per 22746588) to a point of tangency on the Northerly line
of Steven's Creek Boulevard, being 45 feet Northerly of the monument line thereof;
(4) Along said Northerly line South 89° 36' 00" West, 792.04 feet (formerly 792.24 feet per 22746588) to the
Easterly line of Parcel 1 as shown on that certain Parcel Map filed for record on May 26, 1988 in Book 586 of
Maps at Paaes 43 and 44, Santa Clara County Records;
Thence, along the Westerly lines of said Parcel One (Doc. No. 22746588 O.R.), said Parcel 1-C1(2) and said Parcel
1-A(2), North 00.43' 00" West, 1263.89 feet to a point on the Southerly line of Amherst Drive, being 27.27
15
feet Southerly of the monument line thereof, as shown on that certain map entitled "Tract No. 2086", filed for record
September 30, 1959 in Book 112 of Maps. Pages 40 and 41, Santa Clara County Records;
Thence, continuing along said Parcel 1-A(2) and the Southerly line of said Amherst Drive North 89' 12' 40" East,
299.09 feet (formerly North 89° 1329" East, 299.01 feet per said Lot Line Adjustment);
Thence, along the Westerly lines of said Parcel 1-A(2) and said Parcel 1-C1(2) and the Easterly line of said Tract
No. 2086 North 00' 05' 00" West, 799.89 feet (formerly North 00° 04' 30" East, 800.83 feet per said Lot Line
Adjustment); to the point of beginning.
The bearing of North 88' 54' 46" East between two found 2" brass disk monuments along the centerline of Vallco
Parkway, as shown on that certain parcel map filed for record in Book 804 of Maps. Pages 22-23, was used as the
basis of all bearings for this description.
J-1:1014 0 111 :3
A perpetual and exclusive easement, for the construction, maintenance in place and maintenance, repair,
replacement, re -construction and use of underground footings for buildings, structures and improvements to be
located in Parcel V-A hereinafter described and other land over, in, under, along and across the following described
real property:
All that air space bounded by planes projected vertically at the parcel limits, below the horizontal plane at elevation
173.00 feet, according to the datum of the City of Cupertino; (City of Cupertino Official Bench Mark BM- 1 Elev.
179.40);
Beginning at the intersection of the monument Line of Vallco Parkway as shown on that certain Parcel Map recorded
in Book 325 of Mans. Page 12, Santa Clara County Records, with the monument line of Wolfe Road as shown on
said Map; thence along said monument line of Wolfe Road, N. 1 deg 05' 14" W., 426.56 feet; thence N. 88 deg 54'
46" E., 103.43 feet to the True Point of Beginning; thence N. 1 deg 05' 14" W., 140.00 feet; thence N.
88 deg 54' 46" E., 10.00 feet; thence S. 1 deg 05' 14" E. 140.00 feet; thence S. 88 deg 54' 46" W., 10.00 feet to the
True Point of Beginning.
PARCEL V-A:
A perpetual and exclusive easement granted by the City of Cupertino, California by Agreement dated October 8,
1974, recorded October 17, 1974 in Official Records, Santa Clara County, Book B 135 at Page 370, as amended by
Supplement to Agreement between the City of Cupertino, California and Vallco Park, Ltd., dated as of August 5,
1975, recorded on August 20, 1975 in the aforesaid Official Records in Book 8571 Page 724, to construct, maintain
in place, maintain, repair, replacement re -construct and to use buildings, structures and improvements over the
following described Parcel of Land.
All that certain real property situated in the City of Cupertino, County of Santa Clara, State of California, being a
140 foot wide strip, bounded by planes projected vertically at the Parcel limits, above the horizontal plane at
elevation 195.50 feet, according to the datum of the City of Cupertino; (City of Cupertino Official Bench Mark BM- 1
= Elev. 179.40) the centerline of which is described as follows:
Beginning at the monument at the centerline of Wolfe Road and Vallco Parkway, as shown on that certain Parcel
Map, recorded in Book 325 of Maps. Page 12, Santa Clara County Records; thence Northerly along the centerline of
Wolfe Road as shown on said Parcel Map N. 1 deg 05' 14" W., 496.56 feet; thence at right angles S. 88 deg 54' 46"
W., 94.00 feet to the True Point of Beginning; thence N. 88 deg 54' 46" E., 170.00 feet; The Easterly terminus being
the Easterly Right -of -Way line of Wolfe Road and the Westerly terminus being the Westerly Right -of -Way line of
Wolfe Road.
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PARCEL V-B:
The perpetual and exclusive easement for the construction, maintenance in place, and maintenance, repair,
replacement, reconstruction and use of columns, supports, footings and foundations for buildings, structures and
improvements to be located in Parcel V-A above described, granted by The City of Cupertino, California, by Agreement
dated October 8, 1974, recorded on October 17, 1974 in Official Records, Santa Clara County, Q9.QL 8135 at nag 70,
as amended by Supplement to Agreement between the City of Cupertino, California and Vallco Park, Ltd., dated as of
August 5, 1975, recorded on August 20, 1975 in the aforesaid Official Records in Book 8571 at Page 724, over, in,
under, along and across the following described real property.
Beginning at the intersection of the monument line of Vallco Parkway as shown on that certain Parcel Map, recorded
in Book 325 of Maos. Paae 12, Santa Clara County Records, with the monument line of Wolfe Road as shown on said
Map; thence leaving said monument line of Vallco Parkway along the Northerly projection of said monument line of
Wolfe Road, N. 1 deg 05' 14" W., 426.56 feet to the True Point of Beginning; thence S. 88 deg 54' 46" W., 14.50 feet;
thence N. 1 deg 05' 14" W., 140.00 feet; thence N. 88 deg 54' 46" E. 32.00 feet; thence S.
1 deg 05' 14" E., 140.00 feet; thence S. 88 deg 54' 46" W., 17.50 feet to the True Point of Beginning.
PARCEL V-C:
The perpetual and exclusive easement for the construction, maintenance in place, and maintenance, repair,
replacement, re -construction and use of columns, supports, footings and foundations for buildings, structures and
improvements to be located in Parcel V-A above described, granted by the City of Cupertino, California by
Agreement dated October 8, 1974, recorded on October 17, 1974 in Official Records, Santa Clara County, Book
8135 & Page 370, as amended by Supplement to Agreement between the City of Cupertino, California and Vallco
Park, Ltd., dated as of August 5, 1975, recorded on August 20, 1975 in Book 8571 at Page 724, Official
Records, and as amended by Second Amendment to Agreement, dated March 1, 1976 and recorded September 14,
1976 in Book C280 at Page 236, Official Records, and as amended by Third Amendment to Agreement, dated October
7, 1991 and recorded July 24, 1992 in Book M297 at Page 1860, Official Records, over, in, under along and across
the following described real property:
All that space bounded by planes projected vertically at the Parcel limits, below the horizontal plane at elevation
173.00 feet, according to the datum of the City of Cupertino; (City of Cupertino Official Bench Mark BM-1 = Elev.
179.40);
Beginning at the intersection of the monument line of Vallco Parkway as shown on that certain Parcel Map, recorded
in Book 325 of Maps at Page 12, Santa Clara County Records, with the monument line of Wolfe Road as shown on
said Map; thence leaving said monument line of Vallco Parkway along the Northeasterly projection of said monument
line of Wolfe Road, N. 1 deg 05' 14" W., 426.56 feet; thence S. 88 deg 54' 46" W., 84.00 feet to the True Point of
Beginning; thence continuing S. 88 deg 54' 46" W., 10.00 feet to the Westerly line of Wolfe Road; thence along
said line N. 1 deg 05' 14" W., 140.00 feet; thence leaving said Westerly line, N. 88 deg 54' 46" E., 10.00 feet; thence
S. 1 deg 05' 14" E., 140.00 feet to the True Point of Beginning.
PARCEL V-D:
A perpetual and exclusive easement to construct, repair, replace, reconstruct and use a vehicular tunnel and
appurtenances thereto not in excess of 70 feet in width to be constructed, granted by the City of Cupertino, California
by Agreement dated October 8, 1974, recorded on October 17, 1974 in Official Records, Santa Clara County, Book 8135
511, Page 370, as Amended by Supplement to Agreement between the City of Cupertino, California, and Vallco Park,
Ltd., dated as of August 6, 1975, recorded on August 20, 1975 in the aforesaid Official Records in Bgak 8571 at
Page 724, within the area described as follows:
Beginning at the monument at the intersection of the centerline of Wolfe Road and Vallco Parkway, as shown on that
certain Parcel Map, recorded in Book 325 & Page jl, Santa Clara County Records; thence along the
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Westerly prolongation of the centerline of Vallco Parkway as shown on said Parcel Map, S. 88 deg 54' 46" W.
94.00 feet; thence leaving said prolongation along a line parallel to and 94.00 feet Westerly of said centerline of
Wolfe Road, N. 1 deg 05' 14" W., 924.22 feet to the True Point of Beginning; thence continuing along said parallel
line N. 1 deg 05' 14" W., 95.26 feet; thence along a tangent curve to the right whose radius of 100.00 feet; through
a central angle of 20 deg 5609", an arc length of 36.54 feet to a point of reverse curvature; thence along a tangent
curve to the left, whose radius is 100.00 feet, through a central angle of 18 deg 28' 53" an arc length of
32.26 feet; thence tangent to said curve; N. 1 deg 22' 02" E., 71.50 feet to a point on the Right -of -Way line of the
lands of the State of California; thence leaving said Right -of -Way line N. 88 deg 54' 46" E. 171.63 feet to a second
point on said Right -of -Way line; thence Southerly along said Right -of -Way line S. 15 deg 06' 31" W., 63.83 feet;
thence leaving said Right -of -Way line Southerly along a line parallel to and 76 feet Easterly of the centerline of
Wolfe Road as shown on said Parcel Map, S. 1 deg 05' 14" E., 172.58 feet; thence at right angles S. 88 deg 54' 46"
W., 170.00 feet to the True Point of Beginning.
Excepting therefrom that portion of Parcel V-D as was conveyed to the City of Cupertino by Deed recorded October
15, 1976 in Book C348, Official Records, Page 714.
Also excepting therefrom that portion of Parcel V-D as was conveyed to the City of Cupertino by Deed recorded
October 15, 1976 in Book C348. Official Records. Paae 723.
PARCEL XI:
The reciprocal and non-exclusive easements, rights, privileges of use, ingress and egress, parking and for utility and
other purposes created and granted as an appurtenance to said land, described in that certain Construction,
Operation and Reciprocal Easement Agreement between Vallco Fashion Park Venture, Sears, Roebuck and Co.
and Federated Department Stores, Inc., dated as of the 19th day of February 1975, Recorded the 7th day of March,
1975 in Book 8309. Paae 1, Official Records, Santa Clara County, as amended by (1) First Amendment to
Construction, Operation and Reciprocal Easement Agreement Dated as of the 1st day of August, 1975 Recorded
August 29, 1975 in Book 8591 at Page 434 of said Official Records; (2) Second Amendment to a Restatement of
Construction, Operation and Reciprocal Easement Agreement between Vallco Fashion Park Venture, Federated
Department Stores, Inc., Sears Roebuck and Co., Inc., and J.C. Penney Properties, Inc., dated as to the 1st day of
December, 1975 Recorded September 14, 1976 Book C280 Official Records. Page 296 in said Official Records as
Amended by Third Amendment to Reciprocal Easement Agreement Dated September 14, 1976, Recorded June
24, 1977 File No. 5698586; (3) the unrecorded agreement dated as of the 19th day of February 1975, between
Vallco Fashion Park Venture and Sears, Roebuck and Co., the unrecorded Agreement of the same date between
Vallco Fashion Park Venture and Federated Department Stores, Inc. and the unrecorded Agreement dated as of
March 1, 1976 between Vallco Fashion Park Venture and J. C. Penney Properties, Inc. and (4) the undated
Agreement and Consent and Approval executed by Vallco Park, LTD., Vallco Fashion Park Venture, Federated
Department Stores, Inc. and Sears, Roebuck and Co. Recorded in aforesaid Official Records in agaL 8309. Paoe
241 as amended by a First Amendment and Consent and Approval Dated August 1, 1975, by and among the same
parties Recorded in the aforesaid Official Records in Book 8591, Page 445 as further amended by another
Agreement and Consent and Approval Dated as of December 1, 1975, by and among Vallco Center, Inc., Vallco
Park Ltd., Federated Department Stores, Inc., Sears, Roebuck and Co. and J.C. Penney Properties, Inc., Recorded
September 14, 1976 5Q,Qk C280 Official Records, Page 484, as amended by Agreement and Consent and Approval
Dated September 14, 1976 Recorded June 24, 1977 in Book C946 Page 001 and as amended by (5) Fourth
Amendment to Construction, Operation and Reciprocal Easement Agreement between Vallco Fashion Park
Venture, Federated Department Stores, Inc., Sears, Roebuck and Co. and J. C. Penney Properties, Inc. Dated May
1, 1979, Recorded October 15, 1980 in Book F656 Official Records. Page 203, and as amended by (6) Fifth
Amendment to Construction, Operation and Reciprocal Easement Agreement between Vallco Fashion Park
Venture, Federated Department Stores, Inc., Sears, Roebuck and Co., and J. C. Penney Properties, Inc., Dated
February 15, 1984 and Recorded February 16, 1984 in Book 1310 of Official Records, Page 001, (7) as further
amended by Sixth Amendment to Construction, Operation and Reciprocal Easement Agreement between Vallco
International Shopping Center, LLC, a California limited liability company; Macy's Development Stores, Inc., an
Ohio corporation; Sears, Roebuck and Company, a New York corporation and J.C. Penney Properties, Inc., a
Delaware corporation, dated July 14, 2006 and recorded August 25, 2006 as
Instrument N2. 19079269 Qf Official Records, (said Construction, Operation and Reciprocal Easement Agreement,
as amended, said Agreements as Amended and said Original Agreement and Consent and Approval, as amended are
hereinafter referred to collectively as "Construction, Operation and Reciprocal Easement Agreement", in, on, over, upon
and under certain adjoining real property therein, more particularly described, together with all of the rights, powers and
privileges and benefits under said Construction, Operation and Reciprocal Easement Agreement, accruing to Vallco
Fashion Park Venture, Vallco Park, Ltd., and Vallco Center, Inc., their successors, legal representatives and assigns.
Excepting therefrom said rights, powers, privileges and benefits which are not real property or interest in real property.
Also Excepting therefrom that portion Released by Release and Termination, Recorded January 9, 2017, Instrument
No. 23552485, of Official Records.
PARCEL XVI:
An easement to construct, maintain, use and operate an automobile parking structure for automobile and other vehicle
parking, and rights of access, ingress and egress for automobiles and other vehicles and for pedestrians and for utilities,
landscaping and incidental uses, as reserved by Vallco Fashion Park Venture, a California partnership in the
"Amendment to Ground Sublease" recorded March 1, 1985 as Instrument No. 8340269, in Book J283 at Page 149,
on the following described land:
All that certain parcel of land, being a portion of Parcel IA of the sublease between Vallco Fashion Park Venture and
Federated Department Stores, Inc., Recorded March 7, 1975 in Book B308 at Page 565 through 571, Santa Clara County
Records, State of California and more particularly described as follows:
Beginning at the Southeast corner of Tract 2086 as shown on that certain Map Recorded in Book 112 of Maps, at Pages
44 and 41, Santa Clara County Records; (1) thence Northwesterly along the Easterly line of said Tract North O
deg. 43' West 742.60 feet to a point, said point being the southwest corner of the aforementioned Parcel IA; (2) thence
Northeasterly leaving said Easterly line of said Tract, along the Southerly boundary of the aforementioned Parcel IA
North 88 deg. 54' 46" East 69.00 feet to the True Point of Beginning; (3) thence continuing along said Southerly line
of Parcel IA South 88 deg. 54' 46" East 230.55 feet; (4) thence North 1 deg. 05' 14" West 83.48 feet; (5) thence North
28 deg. 54' 46" East 12.77 feet; (6) thence Southwesterly, leaving the boundary line of the aforementioned Parcel IA,
South 88 deg. 54' 46" West 263.31 feet; (7) thence South O deg. 42' 30" East 94.54 feet to the Point of Beginning.
Said easement shall terminate upon the termination of the Federated Department Stores lease and/or upon the demolition
and removal of the parking structure as therein provided.
PARCEL XIV-A:
A non-exclusive easement, for a term of 60 years, to terminate July 1, 2029, as granted to Sears, Roebuck and Co.,
a New York corporation, for the purpose of vehicular and pedestrian ingress and egress, by Easement Deed for term
of years, recorded August 22, 2010, Book 8647, Page 492, Instrument No. 3673181, of Official Records, over, across,
and upon the following:
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of California, and being more
particularly described as follows:
Beginning at the point of intersection of the monument line of Stevens Creek Boulevard, said monument line
being parallel with and 45.00 feet Southerly (measured at right angles) of the Northerly line of said Boulevard, with
the centerline of Wolfe Road (108.00 feet wide) thence along said monument line, S 89° 36' 00" W 907.37 feet to
its intersection with the Southerly projection of the most Easterly line of Tract No. 2086, recorded in 29.Qk 112 of Maps
at Page 40 and 41, Santa Clara County Records; thence leaving said monument line Northerly along
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said projected line, N 00. 42' 55" W 45.00 feet to the true point of beginning, said point being on the aforesaid
Northerly line of Stevens Creek Boulevard; thence continuing along said projected line, N 00. 42' 55" W 249.00 feet;
thence leaving said line at a right angle S 89' 17' 05" W 25.00 feet; thence at a right angle S 00. 42' 55" E
228.75 feet; thence on a tangent curve to the right having a radius of 20.00 feet; through a central angle of 90° 18' 55"
an arc length of 31.53 feet to a point on said Northerly line of Stevens Creek Boulevard; thence along said Northerly
line N 89° 36' 00" E 45.11 feet to the true point of beginning.
TRACT TWO:
PARCEL ONE:
Parcel B, pursuant to Lot Merger, recorded January 14, 2019, Instrument No. 24097492, of Official Records,
described as follows:
All that certain real property lying in the City of Cupertino, County of Santa Clara, State of California, being all of
Parcel One, Two and Three as shown on that certain Lot Line Adjustment recorded August 22, 2006 as Document
Number 19069106 in Santa Clara County Official Records, more particularly described as follows:
Beginning at the Northeasterly corner of said Parcel Three;
Thence, along said Parcel Three South 60° 16' 27" East 123.59 feet (formerly 123.46 feet per said Lot Line
Adjustment);
Thence, continuing along said Parcel Three, South 01. 05' 14" East 1049.61 feet to a point on the Northerly line of
Vallco Parkway lying 55.000 feet Northerly of and perpendicular to the monument line thereof;
Thence, along said Parcel Three and Two, South 88' 54' 46" West 678.04 feet (formerly 678.00 feet per said Lot Line
Adjustment) to the beginning of tangent curve;
Thence, continuing along said Parcel Two on a curve to the right having a radius of 20.00 feet, through a central
angle of 90° 00' 00", an arc length of 31.42 feet to a point of tangency;
Thence, continuing along said Parcels Two and One, said line being also the Easterly line of Wolfe Road, North 01 °
05' 14" West 1021.53 feet (1021.65 feet per said Lot Line Adjustment);
Thence, continuing along said Parcel One the following four (4) courses:
(1) North 15° 06' 31" East, 41.27 feet (formerly 41.30 feet per said Lot Line Adjustment); to the beginning of a
non -tangent curve, concave to the North to which a radial line bears South 01' 39' 13" East;
(2) Easterly along said curve having a radius of 528.00 feet, through a central angle of 02° 15' 02", an arc
length of 20.74 feet;
(3) North 86° 05' 45" East, 119.28 feet;
(4) North 88' 54' 46" East, 55.94 feet to a point on the Westerly line of said Parcel 3;
Thence, along said Parcel 3, North 01 ° 05' 14" West, 25.28 feet;
Thence, continuing along said Parcel 3, North 88° 54' 46" East, 384.58 feet to the point of beginning.
The bearing of North 88° 54' 46" East between two found 2" brass disk monuments along the centerline of Vallco Parkway,
as shown on that certain Parcel Map filed for record in Book 804 of Maps_ Pages 22-23, was used as the basis of
all bearings for this description.
APN: 316-20-121
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reciprocal and non-exclusive easements, rights, privileges of use, ingress and egress, parking and for utility and other
purposes created and granted as an appurtenance to said land, described in that certain Construction, Operation and
Reciprocal Easement Agreement between Vallee Fashion Park Venture, Sears, Roebuck and Co. and Federated
Department Stores, Inc., dated as of the 19th day of February 1975, Recorded the 7th day of March, 1975 in Book
B309. Paae 1, Official Records, Santa Clara County, as amended by (1) First Amendment to Construction, Operation
and Reciprocal Easement Agreement Dated as of the 1 st day of August, 1975 Recorded August 29, 1975 in Book B591
at Page 434 of said Official Records; (2) Second Amendment to a Restatement of Construction, Operation and
Reciprocal Easement Agreement between Vallee Fashion Park Venture, Federated Department Stores, Inc., Sears
Roebuck and Co., Inc., and J.C. Penney Properties, Inc., dated as to the 1st day of December, 1975 Recorded
September 14, 1976 Book C280 Official Records, Page 296 in said Official Records as Amended by Third Amendment
to Reciprocal Easement Agreement Dated September 14, 1976, Recorded June 24, 1977 LLQ No. 5698586; (3) the
unrecorded agreement dated as of the 19th day of February 1975, between Vallee Fashion Park Venture and Sears,
Roebuck and Co., the unrecorded Agreement of the same date between Vallee Fashion Park Venture and Federated
Department Stores, Inc. and the unrecorded Agreement dated as of March 1, 1976 between Vallee Fashion Park
Venture and J. C. Penney Properties, Inc. and (4) the undated Agreement and Consent and Approval executed by
Vallee Park, LTD., Vallee Fashion Park Venture, Federated Department Stores, Inc. and Sears, Roebuck and Co.
Recorded in aforesaid Official Records in P.QQ1S B309. Page 241 as amended by a First Amendment and Consent and
Approval Dated August 1, 1975, by and among the same parties Recorded in the aforesaid Official Records in Book
B591, Page 445 as further amended by another Agreement and Consent and Approval Dated as of December 1, 1975,
by and among Vallee Center, Inc., Vallee Park Ltd., Federated Department Stores, Inc., Sears, Roebuck and Co. and
J.C. Penney Properties, Inc., Recorded September 14, 1976 BLS C280 Official Records. Page 484, as amended by
Agreement and Consent and Approval Dated September 14, 1976 Recorded June 24, 1977 in Book C946 Paae 001
and as amended by (5) Fourth Amendment to Construction, Operation and Reciprocal Easement Agreement between
Vallee Fashion Park Venture, Federated Department Stores, Inc., Sears, Roebuck and Co. and J. C. Penney Properties,
Inc. Dated May 1, 1979, Recorded October 15, 1980 in Book F656 Official Records. Page 203, and as amended by (6)
Fifth Amendment to Construction, Operation and Reciprocal Easement Agreement between Vallee Fashion Park
Venture, Federated Department Stores, Inc., Sears, Roebuck and Co., and J. C. Penney Properties, Inc., Dated
February 15, 1984 and Recorded February 16, 1984 in Book 1310 of Official Records, Page 001, (7) as further
amended by Sixth Amendment to Construction, Operation and Reciprocal Easement Agreement between Vallee
International Shopping Center, LLC, a California limited liability company; Macy's Development Stores, Inc., an Ohio
corporation; Sears, Roebuck and Company, a New York corporation and J.C. Penney Properties, Inc., a Delaware
corporation, dated July 14, 2006 and recorded August 25, 2006 as Instrument j 2. 19079269 Qf Official Records,
(said Construction, Operation and Reciprocal Easement Agreement, as amended, said Agreements as Amended
and said Original Agreement and Consent and Approval, as amended are hereinafter referred to collectively as
"Construction, Operation and Reciprocal Easement Agreement", in, on, over, upon and under certain adjoining real
property therein, more particularly described, together with all of the rights, powers and privileges and benefits under
said Construction, Operation and Reciprocal Easement Agreement, accruing to Vallee Fashion Park Venture, Vallee
Park, Ltd., and Vallee Center, Inc., their successors, legal representatives and assigns.
Excepting therefrom said rights, powers, privileges and benefits which are not real property or interest in real property.
Also Excepting Therefrom that portion Released by Release and Termination Recorded January 9, 2017, Instrument
No. 23552485_ of Official Records.
PARCEL THREE:
A non-exclusive easement for sewer purposes as created in Grant Deed recorded May 27, 1977, Book C869, ZU0
202, Instrument No. 5665237. of Official $, over a strip of land being 10 feet in width, the centerline of which
is described as follows:
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Commencing at the most Southwesterly comer of said Parcel 2, shown upon the Parcel Map, recorded in Book
325 of Maps at Pam 12, Santa Clara County Records, being a point in the Northerly line of Vallco Parkway
(100.00 feet wide) as shown on said Parcel Map;
Thence leaving said Northerly line along the Westerly line of said Parcel 2 N 1" 05' 14" W, 613.18 feet to the point
of beginning;
Thence leaving said Westerly line N. 64" 49' 17" E, 435.66 feet to a point in the Northeasterly line of said Parcel
2, being a point in the Southwesterly line of the "Junipero Serra Freeway", as shown on said Parcel Map, and the
terminus of this easement, from which the Southeasterly terminus of the course in said Southwesterly line bears S
57° 03' 45" E, 18.87 feet
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Exhibit "B"
The SB 35 Project
(Approved February 16, 2024)
The SB 35 Project approved on February 16, 2024, is proposed to contain 2,669 dwelling
units, including 890 Affordable Housing Units; offices; retail uses; and associated
improvements including off-street parking, open space and trails, landscaping, and public and
private improvements (the "SB 35 Project"). The City originally approved the SB 35 Project
pursuant to Government Code Section 65913.4 on September 21, 2018, approved a modified
application on June 3, 2022, and approved a second modified application on February 16,
2024 as memorialized in "Approval Letter — The Rise SB 35 Development (Formerly Vallco
Town Center) — Second Modification Application."
Pursuant to Density Bonus Law, Master Developer also applied for and received the following
development incentives as part of the SB 35 Approval:
1. A density bonus of fifty (50) percent, allowing 890 additional dwelling units over and
above the Property's base density of 1,779 dwelling units (the "Base Density").
2. Three concessions, described as follows (the "Concessions"):
a. A concession to allow the Affordable Housing Units developed
pursuant to the City BMR Program to deviate from the requirement that
unit types be comparable to the Market Rate Units in the SB 35 Project.
b. A concession to allow the studio and one -bedroom Affordable Housing
Units developed pursuant to the City BMR Program to be smaller in size
than the Market Rate Units.
c. A concession to allow 200,000 square feet of retail, where 600,000
square feet is required by the General Plan.
A waiver to allow structures to encroach into the slope line standard as shown on Sheets
P-508 and P-508.1.
To comply with SB 35, Density Bonus Law, and the City BMR Program, the SB 35 Project must
contain Affordable Housing Units that meet all three requirements, as described below:
1. Fifty (50) percent of the Base Density units in the SB 35 Project, or 890 units, must be
affordable to households earning 80 percent or less of Area Median Income (Low
Income and Very Low Income Households) for a 55-year period to meet requirements
of SB 35.
2. To qualify for a density bonus of fifty (50) percent and three Concessions, Density
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Bonus Law Requires that 267 units must be affordable to Very Low Income
Households for a 55-year period.
3. The City BMR Program requires that 160 units must be affordable to Very Low Income
Households and 107 units must be affordable to Low Income Households for a 99-year
period.
An Affordable Housing Unit may meet the requirements of SB 35, Density Bonus Law, and the
City BMR Program, so long as it meets the most restrictive requirement of each of the programs
it satisfies. The Affordable Housing Units in the SB 35 Project will satisfy the requirements of SB
35, Density Bonus Law, and the City BMR Program as follows:
1. 160 Very Low Income Units will satisfy the requirements of SB 35, Density Bonus
Law, and the City BMR Program (the "City VLI Units").
2. 107 Low Income Units will satisfy the requirements of SB 35 and the City BMR
Program (the "City LI Units").
3. 107 Very Low Income Units will satisfy the requirements of SB 35 and Density Bonus
Law (the "Density Bonus VLI Units").
4. 516 Low Income Units will be affordable to households earning 80 percent of median
income and below (the "SB 35 Units").
Within each Affordable SB 35 Project, City VLI Units shall constitute approximately 18 percent
of the Affordable Housing Units; and City LI Units and Density Bonus VLI Units shall each
constitute approximately 12 percent of the Affordable Housing Units, unless a different mix of
unit type is reasonably approved by the City's Director of Community Development.
The total number of Affordable Housing Units in the SB 35 Project shall constitute 33 percent of
the total housing units in the SB 35 Project, but the number of Affordable Housing Units in a
Development Phase may constitute as few as 25 percent of the total housing units in that
Development Phase, so long as the next Development Phase includes sufficient Affordable
Housing Units to "rebalance" the cumulative number of Affordable Housing Units in the prior
Development Phases and the proposed next Development Phase to the 33 percent requirement. In
the event that the SB 35 Project approval expires or is otherwise terminated before the Affordable
Housing Units are completed in the next Development Phase, Master Developer shall pay City's
adopted Below Market Rate Housing Mitigation In -Lieu Fees in an amount equivalent to the
number of Affordable Housing Units needed to constitute 33 percent of the total housing units
previously constructed. This provision shall survive termination of this Agreement.
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