Project Implementation Agreement - Executed for Recordation 2.21.25Pamela Wu
City Manager
10300 Torre Avenue
Cupertino, California 95014
The undersigned hereby declares this
instrument to be exempt from Recording Fees
(Govt. Code § 27383) and from Documentary
Transfer Tax (CA Rev. & Tax. Code § 11922
and SF Bus. and Tax Reg. Code § 1105)
APNs 316-20-121; 316-20-122 SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S
USE
PROJECT IMPLEMENTATION AGREEMENT
This Project Implementation Agreement ("Agreement") is made and entered into as of the
date of the last signature below, by and between VALLCO PROPERTY OWNER, LLC, a
Delaware Limited Liability Corporation ("Developer"), and the CITY OF CUPERTINO ("City"),
a municipal corporation. Developer and the City are referred to herein as a "Party" or collectively
referred to as the "Parties."
RECITALS
A. Developer has legal interest in certain real property consisting of approximately
50.8 acres located within the City and generally located at the northeast corner of N. Wolfe Road
and Vallco Parkway and the northwest corner of N. Wolfe Road and Stevens Creek Boulevard,
Cupertino CA (APNs 316-20-121; 316-20-122) (the "Property").
B. Developer submitted an application on March 27, 2018 pursuant to Government
Code Section 65913.4 (as ultimately modified prior to approval, the "SB 35 Application") for
development of The Rise (formerly known as the Vallco Town Center Project) ("Project"), which
was approved by the City ministerially on September 21, 2018 via a letter to Developer, which
included Attachment A (Initial Approved Plans), Attachment B (Initial 90-day determination
letter), and Attachment C (Initial Standard Project Requirements), and a technical correction letter
dated October 11, 2018 regarding certain standard project requirements under Attachment C.
Developer submitted an application on March 24, 2022, for a modification to the Project, which
the City ministerially approved on June 3, 2022 via a letter to Developer ("Modification No. 1").
Developer later submitted an application on December 4, 2023, for a further modification to the
Project, which the City ministerially approved on February 16, 2024, via a letter to Developer,
which includes Attachment A (Approved Plans), Attachment B (Basis of Approval), and
Attachment C (Standard Project Requirements) ("Modification No. 2"). The September 21, 2018,
letter (including all attachments), the June 3, 2022, letter (including all attachments), and the
February 16, 2024 letter (including all attachments), and all associated technical correction letters
are collectively referred to as the "SB 35 Approval." The Parties acknowledge that, subsequent to
execution of this Agreement, Developer may process one or more further modification applications
to the SB 35 Approval, and thereupon any approval by the City of such application(s), references
in this Agreement to "SB 35 Approval" shall include those subsequent modifications.
C. Pursuant to the SB 35 Approval, as of the date of this Agreement, the Project will
consist of up to 2,669 residential units, with 890 units of those residential units being affordable
to lower income households, and up to 2,700 condominium units (inclusive of both
commercial/retail and residential condominium units) containing a minimum of 226,386 square
feet of retail uses and up to 1,954,613 square feet of office uses.
D. Pursuant to the SB 35 Approval, the Project qualifies for and has been granted a
density bonus under the State Density Bonus Law (as implemented under Cupertino Municipal
Code, Chapter 19.56). The State Density Bonus Law approval included approval of waiver for
relief from setback requirements along arterial/boulevard curb lines, and three
concession/incentives as follows: (i) a concession to allow the affordable units to deviate from the
requirement that unit types be comparable to the market rate units within the development pursuant
to BMR Housing Mitigation Procedure Manual Section 2.3.4(A); (ii) a concession to allow the
affordable units to be smaller in size than the market rate units pursuant to BMR Housing
Mitigation Procedure Manual Section 2.3.4(B); and (iii) a concession to allow a reduction of
400,000 square feet of retail space, where 600,000 square feet is required in the General Plan
pursuant to Strategy LU-19.1.4.
E. On July 10, 2024, Developer and City entered into that certain Settlement
Agreement and Release, recorded as Document No. 2024-25692491 in the Official Records of
Santa Clara County (the "Settlement Agreement"), pursuant to which Developer and City agreed
to resolve certain disputes related to the Project, including regarding certain "fees," as defined in
Government Code section 66000(b), charged by the City in connection with approval of the Project
for the purpose of defraying all or a portion of the cost of public facilities related to the Project
("Impact Fees"), and parkland dedication requirements and/or fees regulated under the Quimby
Act, Government Code section 66477 ("Parkland Dedication Fee").
F. Except as otherwise provided by law, the Project is subject to only the Objective
Standards in effect as of March 27, 2018, the date of the SB 35 Application. Pursuant to the SB
35 Approval, the City has confirmed that there are no specific objective design review standards
for the Project (e.g., architectural design standards).
G. SB 35 establishes a protocol for processing modifications to the SB 35 Approval,
which is set forth under Government Code Section 65913.4(h).
H. SB 35 establishes a protocol for the City's issuance of subsequent permits required
for development of the Project that are within Substantial Compliance with the SB 35 Approval,
which is set forth under Government Code Section 65913.4(i)(2)(A) and (B). Government Code
Section 65913.4(i)(2)(A) states as follows: "A local government shall issue a subsequent permit
required for a development approved under this section if the application substantially complies
with the development as it was approved pursuant to subdivision (c). Upon receipt of an application
for a subsequent permit, the local government shall process the permit without unreasonable delay
and shall not impose any procedure or requirement that is not imposed on projects that are not
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approved pursuant to this section. The local government shall consider the application for
subsequent permits based upon the objective standards specified in any state or local laws that
were in effect when the original development application was submitted, unless the development
proponent agrees to a change in objective standards. Issuance of subsequent permits shall
implement the approved development, and review of the permit application shall not inhibit, chill,
or preclude the development. For purposes of this paragraph, a "subsequent permit" means a
permit required subsequent to receiving approval under subdivision (c), and includes, but is not
limited to, demolition, grading, encroachment, and building permits and final maps, if necessary."
I. As of the date of this Agreement, the Developer has submitted various Building
Permit applications, and the City has issued various construction permits for the Project.
J. Implementation of the Project will require issuance of further building permits for
horizontal and vertical construction. It is anticipated that the Project will be implemented in a
phased basis, through submittal of multiple Building Permit applications.
K. The Project is a large, multi -phased development that will be implemented over
time, and it is anticipated that further SB 35 modifications may be required in the future to
accommodate certain design and program changes.
L. To provide for the efficient implementation of the Project, the Parties wish to enter
into this Agreement to memorialize the manner by which the City shall process Project Building
Permit applications and SB 35 Modification applications consistent with intent of Government
Code Section 65913.4 and the Settlement Agreement. This Agreement is intended to implement
the application of the Parties' rights and obligations under Government Code Section 65913.4 to
the Project and does not create or give rise to any cause of action against any Party independent of
any rights or obligations that exist under local, state, or federal law, or under the Settlement
Agreement.
DEFINITIONS
a. Building Permit. For purposes of this Agreement, "Building Permit" shall mean all
City issued permits for foundations, superstructure, or any permits related to construction of a
building structure for a building(s) within the Project. For purposes of this Agreement, "Building
Permits" shall not include any permits that are unrelated to the development of usable area (e.g.,
residential, retail, or commercial spaces). For example, Building Permits do not include permits
issued for installation of utilities, or horizontal infrastructure.
b. District Architect. For purposes of this Agreement, "District Architect" shall mean
the architecture firm that prepared the most recent SB 35 Approval drawing set. As of the date of
this Agreement, the District Architect is Kohn Pedersen Fox Associates ("KPF").
C. Building Architect(s). For purposes of this Agreement, `Building Architect(s)"
shall mean the architect of record for an individual building or buildings, open space areas, or other
features of the Project.
d. Objective Standards. For purposes of this Agreement, "Objective Standards" shall
have the same meaning as defined under Government Code Section 65913.4(a)(5) and refers to
the applicable standards in place at the time of submittal of the SB 35 Application.
e. SB 35. For purposes of this Agreement, "SB 35" shall mean Government Code
Section 65913.4 et seq., as it may be amended.
f. SB 35 Tracker. For purposes of this Agreement, "SB 35 Tracker" shall mean a
document in a format substantially similar to Exhibit A to this Agreement that tracks the
cumulative amount of residential, retail, and office square footage, and the number of residential
units and affordable housing units, that have been approved, constructed, or are pending approval
under the SB 35 Approval (as modified), along with certain additional details relevant for to
confirm compliance with applicable Objective Standards.
g. SB 35 Partial Plan Modification. For purposes of this Agreement, "Partial Plan
Modification" means a proposed change to the Project that is not in Substantial Compliance with
the SB 35 Approval (as modified) and that makes modifications to a portion of the Project. Such
modifications may affect one or more buildings. An SB 35 Partial Plan Modification application
shall be processed in accordance with Section 3 below.
h. SB 35 District Plan Modification. For purposes of this Agreement, "District Plan
Modification" means a proposed change to the Project that is not in Substantial Compliance with
the SB 35 Approval (as modified) and that makes modifications to the entirety of the Project,
affecting all buildings. An SB 35 District Plan Modification application shall be processed in
accordance with Section 4 below.
i. Substantial Compliance. For purposes of this Agreement, the term "Substantial
Compliance" contained in Government Code Section 65913.4(i)(2)(A) shall mean that the Project
permit application is consistent with the SB 35 Approval (as modified) with certain allowable
deviations limited to those specified in Section 2 below.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
1. Incorporation of Recitals. The Recitals contained in this Agreement, and the
introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if
fully set forth herein.
2. Substantial Compliance Determination.
a. Pre Application Meeting. Prior to submittal of a Building Permit
application, Developer may request a meeting with the City to solicit preliminary feedback
regarding its application and components related to Substantial Compliance criteria.
b. City Determination. In connection with submittal of a Building Permit
application, Developer shall submit an SB 35 Tracker to the Community Development Director.
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The SB 35 Tracker shall include the information provided in Exhibit A. Upon receipt of the SB 35
Tracker, the Community Development Director, or their designee, shall determine if the Building
Permit application is in Substantial Compliance with the SB 35 Approval based on the criteria
described in Section 2(c), inclusive, below. The Community Development Director shall make its
determination in writing to the Developer within thirty (30) calendar days of receipt of the SB 35
Tracker, and if the Community Development Director determines that the submitted materials are
not in Substantial Compliance with the SB 35 Approval or that additional information is required
to make such determination, the Community Development Director shall provide specific reasons
for the non-compliance and the corrective actions or additional information required to achieve
Substantial Compliance. Developer may revise and resubmit the Building Permit application and
SB 35 Tracker to address the Community Development Director's comments. The Community
Development Director shall review the revised building permit application for Substantial
Compliance and make a Substantial Compliance determination within 30 days of the date of the
revised materials. In making a Substantial Compliance Determination, the Community
Development Director shall implement this Agreement in a manner consistent with Government
Code Section 65913.4. Following the Community Development Director's Substantial
Compliance determination, the City shall process the Building Permit application in accordance
with the City's standard protocol, consistent with Government Code Section 65913.4.
C. Substantial Compliance Criteria.
i. Compliance with SB 35 and Objective Standards. Building Permit
applications must comply with SB 35 and Objective Standards.
ii. Reductions in State Density Bonus Law Waivers or
ConcessionsAncentives. When evaluating a Building Permit application, the City shall find that
modifications to the Project's State Density Bonus Law waivers or concessions/incentives that
reduce the extent of an approved variance with a development standard (e.g., increased 1:1
setbacks, increases in the sizes of BMR units or types, etc.) are in Substantial Compliance with the
SB 35 Approval. The City may fmd that Building Permit applications that increase an approved
variance with a development standard are in Substantial Compliance with the SB 35 Approval if
it determines that the increase is minor in context of the Project. The criteria set forth in this
Section 2(c), inclusive, shall be used to make this determination.
iii. Changes in Square Footages. When evaluating a Building Permit
application, the City shall find that the following changes in Project square footages are in
Substantial Compliance with the SB 35 Approval. All criteria in this Section shall be measured
against the respective individual building(s) for which the Building Permit application is being
processed (e.g., changes in square footages of Building 5 shall be measured as a percentage change
from the Building 5 square footage authorized under the SB 35 Approval).
A. Increase or decrease in residential square footage (exclusive
of residential parking square footage) by no more than 5 percent;
B. Increase or decrease in residential unit count by no more than
10 percent;
10 percent;
5 percent;
C. Increase or decrease in retail square footage by no more than
D. Increase or decrease in office square footage by no more than
E. Increase or decrease in parking garage square footage by no
more than 15 percent.
iv. Changes in Building Interiors. When evaluating a Building Permit
application, the City shall find that the following changes in Project building interiors are in
Substantial Compliance with the SB 35 Approval:
A. Changes in internal building layouts, including demising
wall locations and number, subject to the limitation that changes in residential unit counts shall be
limited as set forth in Section 2(c)(iii)(B) above;
B. Changes in floor -to -floor and floor -to -ceiling clearance
height(s), except as would result in a change in calculation of gross floor area, as defined in the
Cupertino Municipal Code;
C. Changes in locations, number, and type of structural
systems, including but not limited to: columns; beams; shear walls; and building lateral or diagonal
bracing;
D. Changes in locations and quantity of internal vertical
circulation systems, including but not limited to: elevator(s), including for parking, passenger,
loading, and fire service access; stair(s); associated vestibule and lobby location(s) (public or
private access);
E. Changes in locations and quantity of mechanical, electrical,
plumbing, trash/recycling; fire -life safety systems, including but not limited to: shaft location(s);
room location(s); intake and exhaust locations;
F. In a mixed -income residential building, decreases in the
mean square footage of below market rate units by no more than 5 percent.
V. Changes in Building Exteriors. When evaluating a Building Permit
application, the City shall find that the following changes in Project building exteriors are in
Substantial Compliance with the SB 35 Approval.
A. Building Heights. Increases in building height(s) up to 10
percent, such that the increase does not exceed one additional floor above the uppermost floor of
the building. Decreases in building height(s), to the extent that such changes comply with the
square footage reduction requirements specified in Section 2(c)(iii) above.
B. Exterior Design. Changes in exterior elevation design,
including changes in materials, fenestration, and articulation.
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C. Private Open Space. Changes in size and location of private
outdoor areas (e.g., balconies, terraces).
D. Primary Building Bulk and Setbacks.
1. Increases to volume of a building that encroaches on
the 1:1 setback slope along arterial boulevards, subject to above Section 2(c)(v)(A) limitation that
height increases shall not exceed one floor above the uppermost floor of the building;
2. Reductions in setbacks facing private on -street
building frontages, including courtyards and secondary streets.
3. Changes in upper floor stepbacks, subject to above
Section 2(c)(v)(A) limitation that height increases shall not exceed one floor above the uppermost
floor of the building;
E. Building Entrances and Loading.
1. Changes in building entrance locations and design,
including front of house public/private lobbies for residential, retail and commercial uses, subject
to the limitation that changes in such locations remain on same street frontage and at least 20 feet
from vehicular ingress/egress points;
2. Changes in building back of house entrance locations
and design, (including parking, loading, or ramp locations) and vehicular ingress/egress and
parking entrances, subject to limitations that changes in such locations remain on same street
frontage as shown in the SB 35 Approval and that such changes do not include modifications to
the entrances along frontage road, Vallco Parkway, or Stevens Creek Boulevard.
F. Exterior Lighting. Changes in locations of fixtures, number
of fixtures, & fixture types, subject to the limitation that any such changes remain consistent with
Code requirements.
G. Landscaping. Changes in landscape areas, location and
design, subject to the limitation that any such changes remain consistent with the landscape palettes
set forth in the SB 35 Approval and do not result in reductions in total tree counts within the
Property.
H. Stormwater Compliance. Changes in the onsite stormwater
treatment compliance strategy and treatment measures, subject to the limitation that the Project
maintains compliance with NPDES and compliance with applicable Low Impact Development
measures.
vi. Other Changes. The criteria set forth in Section 2(c), inclusive, are
intended as a non -exhaustive list and should not preclude the Community Development Director,
in their exercise of reasonable discretion, from making a Substantial Compliance determination
when considering other changes or variances determined to be minor in the context of the Project
and as considered and in light of the criteria set forth in this Agreement.
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vii. Limitations Based on Existing SB 35 Approval. A Substantial
Compliance Determination under this Section 2 does not modify the SB 35 Approval, including
but not limited to any maximum or minimum density, square footage, public or private open space,
or residential unit count for the Project. Any modification to the Approved Plans that does not
meet the requirements for a Substantial Compliance Determination may be approved only as an
SB 35 Partial Plan Modification or an SB 35 District Plan Modification under Section 3 or 4 of
this Agreement, and must comply with all applicable objective standards and the requirements of
Government Code section 65913.4.
3. SB 35 Partial Plan Modification.
a. Purpose. The purpose of this Section 3 is to establish the requirements for
an SB 35 Partial Plan Modification application, which is intended to be a streamlined process that
eliminates submittal of application materials regarding Project information that is unaffected by
the SB 35 Partial Plan Modification and thus is not necessary for the City's evaluation pursuant to
the SB 35 Modification process. The Developer may utilize the process set forth in this Section 3
at its election.
b. SB 35 Partial Plan Modification Application Materials. The materials
required for an SB 35 Partial Plan Modification application submittal are only those that are
necessary to provide the City with adequate information to confirm Project compliance with SB
35 requirements and applicable Objective Standards. Developer may request a meeting with the
City in advance of the SB 35 Partial Plan Modification application submittal to determine the
materials necessary to be provided in connection with that application.
i. Plan Sets. With respect to development plan sets, the Developer
shall submit only those specific sheets where changes are proposed. All other plan set sheets,
including existing conditions sheets, are not required to be resubmitted. Each drawing sheet shall
be marked -up by the District Architect or Building Architect to reference the portions of the other
plan set sheets that are being updated by the Building Architect in connection with the SB 35
Partial Plan Modification application. The Building Architect shall provide updated plan set sheets
showing only the updated building(s) and associated improvements, with all other areas not
included in the SB 35 Partial Plan Modification application to be clearly marked as out of scope.
Exhibit B provides a conceptual example of the format to be utilized for the SB 35 Partial Plan
Modification plan sheets.
ii. Other Materials. The SB 35 Partial Plan Modification application
shall include all materials and technical reports listed in the City's SB 35 Application Checklist
that are relevant to the changes being proposed. Other materials and technical reports not affected
by the Partial Plan Modification application may be omitted.
iii. Review Process. The City shall process the SB 35 Partial Plan
Modification application in the same manner as specified under Government Code Section
65913.4(h).
4. SB 35 District Plan Modification. For SB 35 District Plan Modification
applications that affect the entire Project, the application shall include all materials and technical
reports listed in the City's SB 35 Application Checklist that are relevant to the changes being
proposed. Developer may request a meeting with the City in advance of the application submittal
to determine the materials necessary to be provided in connection with that application. Wherever
feasible, the City shall endeavor to limit the scope of required materials only to those necessary to
provide the City with adequate information to confirm Project compliance with SB 35
requirements and applicable Objective Standards. Existing conditions sheets shall not be required
to be resubmitted. The City shall process an SB 35 District Plan Modification application in the
same manner as specified under Government Code Section 65913.4(h).
5. Applicable Building Codes. Pursuant to SB 35, Objective Standards include the
objective building standards contained in the California Building Standards Code (Title 24 of the
California Code of Regulations), including, but not limited to, building plumbing, electrical, fire,
and grading codes. Pursuant to Government Code Section 65913.4(h)(3)(C), the City agrees that
because the Developer submitted its first building permit application prior to submission of
Modification No. 1, the Project is subject to the 2016 Title 24 of the California Code of
Regulations, which is the version in effect at the time of submittal of the first Project Building
Permit application. As such, the City agrees that Developer is permitted to process all Project
Building Permit applications pursuant to the requirements 2016 Title 24 of the California Code of
Regulations subject to the terms of this Section 5.
a. Building Permit Application Protocol. Prior to submittal of a Building
Permit application that relies on all or a portion 2016 Title 24 of the California Code of
Regulations, Developer shall meet with the City to discuss the specific Building and Fire Codes
that will be incorporated into the Building Permit application. Developer and City shall meet and
confer as to whether Developer will incorporate updated building standards into the application
pursuant to Government Code Section 65913.4(h)(3)(C). Developer shall submit a completed City
of Cupertino Alternate Materials and Methods / Modification Form with each Building Permit
application, which shall specify the Building and Fire Codes that have been incorporated into
Building Permit application. City and Developer may agree on an alternative form for
documenting compliance with this paragraph. The purpose of submittal of the Alternate Materials
and Methods / Modification Form or alternative form shall be limited only to
documenting any Building and Fire Codes that Developer may have voluntarily incorporated
into a Building Permit application, and does not result in such Building Permit application being
subject to discretionary review.
b. No Further Building Permit Application Extensions. Pursuant to this
Section 5, City further agrees that Developer shall no longer be required to submit extensions to
existing building permits.
6. Term and Termination. This Agreement shall commence on the date of the last
signature below and shall remain in effect until the earlier of: (a) expiration of the SB 35 Approval
of the Project; (b) the date that all Building Permits for the Project have been issued and final
inspections have been completed; or (c) the date that this Agreement is terminated by mutual
written consent of the Parties.
7. Successors and Assigns - Covenant Running With the Land. This Agreement shall
inure to the benefit of, and be binding upon the heirs, administrators, successors, assigns and
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transferees of the Parties, and shall be recorded in the Office of the County Recorder and constitute
a covenant running with the land. Upon any sale or division of the Property, the terms, covenants,
conditions and restrictions of this Agreement shall apply to each parcel, and the owner or owners
of each parcel shall succeed to the obligations imposed upon Developer by this Agreement.
8. Notices. Except as otherwise specified herein, all notices, demands, requests or
approvals sent pursuant to this Agreement shall be given in writing and sent to the Parties at their
respective addresses specified below or to such other address as a Party may designate by written
notice delivered to the other parties in accordance with this Section. All such notices shall be sent
by: (a) personal delivery, in which case notice is effective upon delivery; (b) certified or registered
mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if
delivery is confirmed by a return receipt; (c) nationally recognized overnight courier, with charges
prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery
is confirmed by the delivery service; or (d) postage prepaid registered or certified mail, in which
case notice shall be deemed delivered on the second business day after the deposit thereof with the
U.S. Postal Service.
Developer: Vallco Property Owner, LLC
C/O Sand Hill Property Company
2600 El Camino Real Suite 410
Palo Alto, CA 94306
City: City of Cupertino
Attn: City Manager
City Attorney
10300 Torre Avenue
Cupertino, California 95014
9. Governing Law and Attorney Fees. This Agreement shall be interpreted under, and
enforced by the laws of the State of California excepting any choice of law rules that may direct
the application of laws of another jurisdiction. The Agreement and obligations of the parties are
subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over
this Agreement (or the successors of those authorities.) Any suits brought pursuant to this
Agreement shall be filed and heard in the courts with jurisdiction in the County of Santa Clara,
State of California. In any lawsuit to enforce any provision of this Agreement, each party shall
bear its own costs and fees, except as otherwise provided by law or as provided by Section 10 of
this Agreement.
10. Indemnification. Developer acknowledges its existing obligation to defend, hold
harmless, and indemnify this City from claims and actions arising out of or in connection with the
Project or any Project approval, including but not limited to any approval of any Plan Modification
or Substantial Compliance Determination made pursuant to this Agreement. Nothing in this
agreement shall limit or otherwise modify the Developer's existing indemnification obligations
owed to the City.
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11. Relationship of Parties. Neither Developer nor any of its contractors, employees or
agents shall be deemed to be agents of the City in connection with the Performance of Developer's
obligations under this Agreement.
12. No Third -Party Beneficiaries. This Agreement is intended to benefit only the
parties hereto and their respective successors and assigns. Neither City nor Developer intend to
create any third -party beneficiary rights in this Agreement in any contractor, subcontractor,
member of the general public, or other person or entity.
13. Severability. The provisions of this Agreement are severable. If any portion of this
Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement
shall remain in full force and effect.
14. Integrated Agreement; Amendments in Writing. This Agreement, including
Exhibits A through B, attached hereto and incorporated herein by this reference, represents the full
and complete understanding between the parties with respect to the subject matter hereof and all
preliminary negotiations and oral or written agreements with respect thereto are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any
modification of this Agreement will be effective only by written instrument signed by both City
and Developer.
15. Time is of the Essence. Time is of the essence in the performance of this Agreement
by Developer and City.
16. Headings; Construction; Statutory References. The headings of the Sections and
paragraphs of this Agreement are for convenience only and shall not be used to interpret this
Agreement. This Agreement is the product of negotiation between the parties. The language of
this Agreement shall be construed as a whole according to its fair meaning and not strictly for or
against any party. Any rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in interpreting this Agreement. All references in this Agreement
to particular statutes, regulations, ordinances or resolutions of the United States, the State of
California, or the City of Cupertino shall be deemed to include the same statute, regulation,
ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other
provisions as may thereafter govern the same subject.
17. Recordation. Upon execution of this Agreement, Developer shall record this
Agreement with the Santa Clara County Clerk -Recorder's Office.
18. Authority to Enter into Agreement Each Party covenants and represents that it is
fully authorized to enter into this Agreement and to carry out the obligations provided for herein.
Each signatory to this Agreement represents and covenants that the signatory possesses the
necessary capacity and authority to sign and enter into this Agreement and to bind the Party on
.whose behalf they are a signatory.
19. Counterparts This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, and all of which taken together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
respective, duly authorized officers on the date listed below.
as to
Christopher D.
City Attorney
CITY OF CUPERTINO:
Pa Lela Wu
Vallco Property Owner, LLC
Name: P9TV (CAI&
Title: rjAw*6 gR
Attachments:
Exhibit A — SB 35 Tracker
Exhibit B — Conceptual Partial Plan Modification Plan Sheet
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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 S a. K -/a C/4
On //J ( 2--S- , before me, a Notary Public,
personally appeared /�g A-.%'1 e 'r t'/' , who proved to me on the basis
of satisfactory evidence to be the persono whose name('is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ie4, and that by his/her/their signature(sy on the
instrument the person( , or the entity upon behalf of which the person,(sy 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.
°t? KIRSTEN SQUARCIA
Notary Public • California
Santa Clara County
Commission # 2431589
r Signature My Comm. Expires Dec 19, 2026
G� �`'�'��, "-"'L�
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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 S49A &_�
On 7- 2-1 4197-before me, ikA V1+O , a Notary Public,
personall appeared Pfi��2 `T.An� who proved to me on the basis
of satisfactory evidence to a the persons) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
14
0my
KATIE YAO
Notary Public • California
Santa Clara County
Commission # 2426,770 Comm. Expires Dec 5, 2026
EXHIBIT A
SB 35 Tracker
Building Permit Application Number:
Original 2018 SB.35 Approved Pro ramp`.
Residential: 4,961,904sy. t. Office: 1,981,447s . t Retail: 485,912s . t.
x ,�.>. Program
�. ., �,�, ��_,. "s �r�°�. _'ems a
. SB`.35, A roved Pro ram Per Most Recent Modiftcation i', z -
Residential: 4,382,226s . ft. I Office: 1,954,613s . t Retail:226,386s . t.
I. Prior Issued Building Permits
Developer to include Excel spreadsheet, or comparable format, tallying the following
information for all prior issued Building Permits, including a row showing total square footage
in each category and unit count to date.
Building
Permit #
Building/Blockj
. 4 Number
Gross Building
S uare Foota e..
Open Space
S ware Foota 'e: ,
Residential Unify
i Counts;,
Residential:
Public:
Market Rate
Retail:
Units:
Office:
Private:
Parking:
Below Market
Rate Units:
II. Building(s) Included in Current Building Permit Application & Resulting Program:
Include more rows as needed.
Building/Block
f. Number .
.
Residential
Square-<
Footage
Office Square'
FootageR
RetaileSquare'
Footage
3
Parking:
Square.
Fo ge &
Spaces�-
OpenSpaee .
Square
o g
III. Net Change in SB 35 Approved Program:
Change to be measured as compared to Original 2018 SB 35 Approved Program.
-Residential Square,.:
.,;,,.Of fice Sijuare '
Retail Square
0penySpace Square i
Foote a &Units,
Foote e
Foote
e`°
h
aFoots
Public:
Private:
15
IV. Cumulative Change in SB 35 Approved Program:
Change to be measured as compared to Original 2018 SB 35 Approved Program.
Residential Square
Foota a &Unit's
Office Square
Foota e ,
Retail Square
,<Foota e ' a
`Open'space`Square
�Foota e;
V. Summary of Changes in BMR Program, if any.
Description:
VI. Summary of Changes in Density Bonus Approved Waivers or Concessions/Incentives,
if any.
Description•
VII. Substantial Compliance Criteria
Evaluation of criteria set forth in Section 2(c) of the Agreement.
o
ce i Com lanwith Ob ec h •v ' ' •fib :� •�
p ; .�, ,J, eStandards
` -
Ob'eetive Standard' ..
'Descri ion
❑ Compliant
Residential Square Footage. Government Code
❑ N/A/No
section 65913.4(a)(2)(C) requires that projects
Change
qualifying for ministerial approval must show that "at
least two-thirds of the square footage of the
development is designated for residential use. " The
residential and nonresidential square footage
calculations must be performed using the "same
assumptions and analytical methodology " that were
used in the Original 2018 SB 35 Approval.
❑ Compliant
Maximum Residential Density. 35 dwelling units per
❑ N/A/No
acre prior to any density bonus.
Change
❑ Compliant
Maximum Office Allocation. 2, 000, 000 square feet.
❑ N/A/No
Change
❑ Compliant 1
Minimum Retail Density. 200, 000 s uare eet.
16
❑ N/A/No
Change
❑ Compliant
Onsite Bicycle Parking.
❑ N/A/No
Change
17
, . Compliance with Other Substantial Coin fiance Criteria° " A -
t :
Substantial Compliance Criteria
Description
Changes in S are Foota es
❑ Compliant
Increase or decrease in residential square footage
❑ N/A/No
(exclusive of residential parking square footage) by no
Change
more than 5percent;
❑ Compliant
Increase or decrease in residential unit count by no more
❑ N/A/No
than 10 percent;
Change
❑ Compliant
Increase or decrease in retail square footage by no more
❑ N/A/No
than 10 percent;
Change
❑ Compliant
Increase or decrease in office square footage by no more
❑ N/A/No
than 5 percent;
Change
❑ Compliant
Increase or decrease in parking garage square footage
❑ N/A/No
by no more than 15 percent.
Change
Changes in B ilding Interiors
❑ Compliant
Changes in internal building layouts, including
❑ N/A/No
demising wall locations and number, subject to the
Change
limitation that changes in residential unit counts shall
be limited as set forth in Section 2 c iii B above;
❑ Compliant
Changes in floor -to -floor and floor -to -ceiling clearance
❑ N/A/No
height(s), except as would result in a change in
Change
calculation of gross floor area;
❑ Compliant
Changes in locations, number, and. type of structural
❑ N/A/No
systems, including but not limited to: columns; beams;
Change
shear walls; and building lateral or diagonal bracing;
❑ Compliant
Changes in locations and quantity of internal vertical
❑ N/A/No
circulation systems, including but not limited to:
Change
elevator(s), including for parking, passenger, loading,
and fire service access; stair(s); associated vestibule and
lobby location "s(public or private access);
❑ Compliant
Changes in locations and quantity of mechanical,
❑ N/A/No
electrical, plumbing, trash/recycling; fire -life safety
Change
systems, including but not limited to: shaft location(s);
room location "s ; intake and exhaust locations;
❑ Compliant
In a mixed -income building, decreases in the mean
❑ N/A/No
square footage of below market rate units by no more
Change
than 5 percent.
Changes in Building Exteriors
❑ Compliant
Building Heights. Increases in building height(s) up to
❑ N/A/No
10 percent, such that the increase does not exceed one
Change
additional floor above the uppermost floor of the
18
building. Decreases in building height(s), to the extent
that such changes comply with the square footage
reduction requirements specified in Section 2(c) above.
❑ Compliant
Exterior Design. Changes in exterior elevation design,
❑ N/A/No
including changes in materials, fenestration, and
Change
articulation.
❑ Compliant
Private Open Space. Changes in size and location of
❑ N/A/No
private outdoor areas (e.g., balconies, terraces).
Change
❑ Compliant
Building Heights. Increases in building height(s) up to
❑ N/A/No
10 percent, such that the increase does not exceed one
Change
additional floor above the uppermost floor of the
building. Decreases in building height(s), to the extent
that such changes comply with the square footage
reduction requirements specified in Section 2(c)(iii),
above.
Prima Building Bulk and Setbacks
❑ Compliant
Increases to volume of a building that encroaches on the
❑ N/A/No
1:1 setback slope along arterial boulevards, subject to
Change
above Section Section 2(c)(v)(A)limitation that height
increases shall not exceed one floor above the
uppermost floor of the building;
❑ Compliant
Reductions in setbacks facing on -street building
❑ N/A/No
frontages, including courtyards and secondary streets.
Change
❑ Compliant
Changes in upper floor stepbacks, subject to above
❑ N/A/No
Section 2(c)(v)(A) limitation that height increases shall
Change
not exceed one floor above the uppermost floor of the
building;
Building Entrances and Loading
❑ Compliant
Changes in building entrance locations and design,
❑ N/A/No
including front of housing public/private lobbies for
Change
residential, retail and commercial uses, subject to the
limitation that changes in such locations remain on
same street frontage and at least 20 feet from vehicular
ingress/egresspoints;
❑ Compliant
Changes in building back of house entrance locations
❑ N/A/No
and design, (including parking, loading, or ramp
Change
locations) and vehicular ingress/egress and parking
entrances, subject to limitations that changes in such
locations remain on same street frontage as shown in
the SB 35 Approval and that such changes do not
include modifications to the entrances along frontage
road or Stevens Creek Boulevard
❑ Compliant
Exterior Lighting. Changes in locations of fixtures,
number of fixtures, & fixture types, subject to the
19
❑ N/A/No
limitation that any such changes remain consistent with
Change
Code requirements and prior approved photometric
levels.
❑ Compliant
Landscaping. Changes in landscape areas, location and
❑ N/A/No
design, subject to the limitation that any such changes
Change
remain consistent with the landscape palettes set forth
in the SB 35 Approval and do not result in reductions in
total tree counts within the Property.
❑ Compliant
Stormwater Compliance. Changes in the onsite
❑ N/A/No
Stormwater treatment compliance strategy and
Change
treatment measures, subject to the limitation that the
Project maintains compliance with NPDES and
compliance with applicable Low Impact Development
measures.
❑ Compliant
Other Changes.
❑ N/A/No
Change
20
EXHIBIT B
Conceptual Partial Plan Modification Plan Sheet
21