Loading...
08. CC&R's 21255 Stevens Creek Blvd. (Cupertino Oaks)DRAT RESOLUTION NO. 10-041 A RESOLUTION OF THE CITY COUr1CIL OF .THE CITY OF CUPERTINO APPROVING A DECLARATION OF COVEN~~NTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMEN'T'S AFFECTING LAND, A DEFERRED IMPROVEMENT AGREEMENT, AND ,~ DECLARATION OF RESTRICTIVE COVENANTS BETWEEN T]~E CITY OF CUPERTINO, MODENA INVESTMENT, LP, ANI) SUNNYVALE HOLDING, LLC, 21255 STEVENS CREEK BOIJLEVARD, APN 326-27-035 WHEREAS on or about September 2, 20~D8, the City of Cupertino approved a Tentative Map for the subdivision of the Property, consisting of an 8.1 net acre parcel of land into two (2) parcels of approximately 2.6 acres and 5.5 acre, in size, with the 2.6 acre parcel to be furthex subdivided into two (2) commercial condominiurr~ units and a common area lot; and WHEREAS through the .Declaration of Covenants, Conditions and Restrictions and Establishment of Easements Affecting Land, the owners agree to mutual equitable servitudes in favor of affected lands, and to create reciprocal tights and obligations between and among each owner; and WHEREAS through the Declaration of Restrictive Covenants, the owners agree to not transfer interest in the pxoposed condo units, referred to in the restrictive covenants, for a specified period of time, and agree to record a lot line adjustment, as specified by the xestrictive covenants; and WHEREAS through the Deferred Improvement Agreement with the City, the applicants, in order to obtain a building permit, will be c-bligated to bond and construct city-specified improvements along the street frontage of their building site, within a 48 month period; and WHEREAS there has been presented to the City Council for approval and for authorization to record a Declaration of Covenants, Conditions and Restrictions and Establishment of Easements Affecting Land; and for approval and authorization to execute and record a Deferred Improvement Agreement and_ a Declaration of Restri~;tive Covenants, located at 21255 Stevens Creek Boulevard. 8-1 Resolution No. 14-041 NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL, HEREBY a. Approves said declaration of covenants, conditions and restrictions and establishment of easements affecting land; b. Approves sand deferred improvement agreement, and authorizes the City Manager to execute said deferred improvement agreement; c. Approves said declaration of restrictive covenants, and authorizes the City Manager to execute said declaration of restrictive covenants. PASSED AI~TD ADOPTED at the regular meeting of the City Council of the City of Cupertino this 2"d day of March 2010, by the following vote: Vote Members of the C~ Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 2 s-2 ..~ -~. 1. ~. ,~~,~ ~ ~ ~S" - ~kik. ~- -- die `'eCs~~.. - :=~~.: Adopt a resolution approving a Decfara#ion of Covenants, Conditions and Restrictions and ~ -~~ ~ Establishment of Easements Affecting Land, a Deferred Improvement Agreement, and a -=~: Declaration of Restrictive Covenants betwef;n the City of Cupertino, Modena Investment, LP, and Sunnyvale Holding, LLC, 21255 Stevens Creek Boulevard, APN 326-27-035, Resolution ~~ ~ - Through these agreements and declarations, the owners agree to the terms and restrictions set t`„~ forth by the City of Cupertino for the subc!ivision of an 8.1 acre parcel into two parcels of `~" , approximately 2,6 acres and 5.5 acres. s - 3 -.-j -.: ~~ :. .. _,,"~~x: ~ ~..~.-,.::"~~~9X:~~~~1s"~ ~. ` ~?Sa~1~l~'~~?3~ =:r~1.>w.erati>~=.:~3I~6e~;.:.......a.. 3G~1~L'li3a~e;~_aF stmxt --~~---~ --v~+-+.^-. .... .. .. . ....... Recordin Re uest B The City of Cupertino and When Recorded Return To: City of Gupettino . 10300 Torre P- 950,E 4-3255 Cupertino, CA Tg CpND1TiONS AND RESTRICTIONS AND DECLARATION 4F COVENAN , ENT pF EASEMENTS AFFECTING LAND ESTABLISHM ESTMENT, LP, a California limited partnership, tenants-in WHEREAS Declarants MODENA INV real ropertY G LLC, a California limited liability company, and SUNNINALE [-{QLD1N of that certain P rs being referred to herein as "Decla S a e}of California (the "Prope~Y") common fee owne of Cupertino, County of Santa Clara, situated ~n the City described as: ereto for Legal Description of the "Prope~Y". See Exh~bst A h ertino approved a 2008, the City of Cup arcel of tember 2, of an 8.1 net acre p WHEREAS on or aboision eof the Property, consisting respectively Tentative Map for the subd roximately 2.6 acres and 5.5 acres in size, fiNO (2} parcels of app to be further subdivided into two commercial [and into arcel (Parcel A} Parcels A and 8, with one p condominium units and a common area lot. roximately 2.6 al Parcel Map more particularly describes the app WHEREAS the Fin acres as: Exhibit B hereto for Legal Description ' See hereafter be referred to simply as "Parcel A"; which parcel shall, roximately 5.5 more particularly describes the app known as the WHEREAS the Final PaS the commercial shopping center commonly acres, (Parcel B} that include `oaks Center as: See Exhibit C hereto for Legal Description ose upon each parcel of Declarants intend, by this Declaration, to imp ~ mutual VIIHER~s cribed herein as "Parcel A" and "Parcel By r` }hts and land comprising the Prope~y now des and (ii} to create recrpro 9 uit weer of such Parcels for the time whe ~~ Declaran s ' able servitudes in #avor of all such Property pvuners eq each O ros ec obligations between and among ' ee simple interest, fractionally or in its entirety to p transfer, if at all, theMr f 8-4 eels A and B, as described in Exhibits B elusive 1~VHEREAS Declarants intend that Par o the covenants, conditions, restrictions and non-eX respectively, be made subject t s affecting land contained within this Declaration. easement sin this Declaration is intended to run and ted and WHEREAS each of the restriction arcek s in the 1 of land as herf:in-above descr+bed, is and a +IP e a t } with the land and each Parce ants of its Ownerts) for the benefit of the of burdened by the coven rt and their respective heirs, success~ars and ass+gns• eland Prope y title to th Declarants will hereaf per hold, lease ea ements and restrictions set WHEREAS - •n the Property, subject~to the covenants, conditions, comprise g forth in this Declaration. thereafter, "Restrictions that all of their covenant, agree and declare rising the NOW, THEREFORE, Declarantst ei` me appear in and to the land com ect to the from time led and conveyed subj interest, as the same may occup declared to o ert , will be held, transferred, sold, leased, Pr p Y s easemen'~s and restrictions which are ns h Y run with the following covenants, condition , and that such Restrictio u on all parties be for the benefit of said interest in the P t therein and they shall be binding P u on their Property on every part thereof or interes art thereof and p c uiring any right or title in said interes nsr any P having or a q ccu ants and respective heirs, successors and ass g O P AR~ TICLE: l: EASEIVIENTS rised by the Property shall In ress and E ress. Each Ovrner of a ,Pula Band pedestrian ingress and egress ") • 1 • customers have the right to a non-exclusive ease of tto°suchiOwner and of its Occupantso ert from appurtenant to each parcel for the ben driveways into the Pr p Y vitees under, over, upon, and ac+•oss the entry in ~ e including any future reconfi9uratiori tha esf or Avf,nu , Stevens Greek Boulevard and o nd ov~~r, upon and across the parking areas an sP and under (below leveklundergr ) _ and walkways, exits and entrances, odf led for s, sidewalk. driveways and access way Shall, from time to time, be developed, such Owner and of its common areas, as such areas arties to and from such Ov+rner's parcel for the be eate any rights in any p ingress and egress s customers and invitees. Thi~~ Section '1 he ykk ht to grant easements fior ingress, Occupant , ea to any third party who is not an Owner or other than the Owners, and no Owneor n +ArhaVe eclaration. egress, parking or use of the Comm " is consistent with the terms and conditions of this Occupant and then only as it shall have the right arcel comprised by the Pr°perty under (below ~ •2. Parkin .Each Owner of a p• ur OSe of vehicular parking Hated for u on the Common Area of such Parcel desig to a non-exclus+ve easement for he P P en revailing over IeveUunderground), across and p ulations th P then in accordance with reasonable rule s O d upants, customers and invitees. parking and arkfng of h arkfng areas for the benefi# of ()caner and of it orary p sue p shall be used For no purpose other than for temp Such arkfng spaces and invitees. Employees of Owner an se f No P ark only in areas designated for them for such pure Owner and of its Occupants, customers or vehicular parking Occupants may be required top Hated f rkin will be permitted in the Common Area des+g overnight Na ~ Page 2 ion of CC&Rs & Estabiist-ment of Easements Final ~d1 ~ ~6Q9 Oaks Cer-ter: Deciarat 8-5 Occu ants under the terms of nee andlor Owner andlor P authorized activ+ty of Ow except as may be author1zed by . 5 below, or in connection with a hat is compliant with requiremend for prov+ded in Sect+°n 1 • arking and t ht arking be peCm+tte ccu ants that requires such overnight p O p er no circumstances shall such ovemi9 P the City of Cupertino. Und nation andlor sleeping Pure°se of anyone. Shall have the inhab rised by the Property arcel comp Ines: Each Owner of a P and across the Common Area ctur s 1.3. Ut~~[ L----- e s stems or stru non-exclusive easements unde lacernegt of water drainag Y hone or electrical right to a+r and rep stem lines, telep installation, maintenance, rep water sprinkler sy orm drains, sewers, rid other facilities for utilities neCensap the water mans, st as mains, transformers a s stems, 9 the Common Area and of each euexe cised in conducts or Y merit and operation of the orderly develop rsuant to such easements will a othe~t Qwners and with the Property. The rights granted pu se the least interference with the rights ° such manner orti of the properky. normal operate on the parcel of another the right of any Owner to enter up ' an emergency, such easements will be condition 5 of Ph s Except +n r~ ht ursuant to subject to Sectyon 8• Owner for the exercise of aconsent of such other Owner duits, lines and other facilities, obtaining the prior wr+tten ch s stems, structures, mains, Sealers: con use the su Y Called and maintained below the Carface or Declarat+on• All for utilities will be ins transformers~~ old an Owner deem it necessacon°mon Area of ~except+ng tric line, sewer or other utilities across t e round level of such easements. Sho hereof, the Owner thereof g aving and improv+ng t installation of a storm drauent Ito the initial p necessary additional easements, any other parcel subseq withhold the granting of any +nterfere to unreasonably n be ermined if it would unreas he bthe Owner agrees not ert and provided fort , vided that in no event will such tinsinelss of the Prop Yi store to the previously pro eration of any bus letel re with the normal op installation will, at its expense, c tints and surfaces disrupted as a . making or causing such rovem of the forego+ng better condition all Common A ould ~ necessary to grant any it roviding or ex+st+n9 or ult of such installation. In the eVelnt tt companies as a condition he pwners required to res easements and rights to lOS will be granted at no cost so to u9 ~ a grant to be reasonably continuing service, such right nts deem the terms and Condit+ons of s execute such +nstrume able and consistent with this Declaration. a anon-exclusive accept arcel shall hav ised by the Properly for surface water rains a Easement: Each Owner of a P er drainage 1.4. nt over parcels of other Owners d~ainage panerns and storm a tot time among easeme h the ex+st+ng drainage over and throug a atterns that may be established from +m other drainag P this First Amended Declaration. ate 9 systems or such the dra+nage P reels in accordance with the Delolcating orr otherwise altering ided however, that the Pa herein will prevent an Owne ~sro a ~ 1 subject to this Declaration, pr+nterfere with, impede established upon such- Owne P e atterns does not mater+aldrainage Patterns on or such relocation or alteration of he }Hermit ed operation of eX1S g affect t p or otherwise advother Owners. under Parcels of to the contrary herein o Occu ants: Notwithstanding anything of Ri his t ement rights contained in this A sicla e ~y .5. Transfer Owner may transfer and assign the eas 'ttions of this ' ed an executed lease in which eased Co ~ r+g prov+d ~ ursuant to a duly to its Occupants, P si red to Occupants subject to the terms an erred and as g to comply with such terms and conditions. expressly transf ants expressly agree Declaration and such OccuP Page '~ C&Rs & Establishment of Easements Final jb~{ 10609 Oaks Center: Declaration of C 8-6 e contras in any lease, Owner shall not be relieVerail f Notwithstanding any agreement to th y omtl and se Y ' ns hereunder and C1wnE;r shall be deemed uch obligations. In any Owner's obligatio 'ble and liable with Occupants for C~ccupants' bsen connection with the transfer or response transfer and assignment of easement righns to ccupa b er shall {a) obtain an indemnity agreement fro e assignment of the leasehold interest, Ow that may enefit of Owner and all other Owners of the bro cunt actual liability Occupants for the b Occu ants' breach of obli+~ations hereunder e d {Owner shall not, in damaged by the P ' urance coverage that will cover such indemnithe easement rights as stated in Article ins connection with such transfer or assignment, mo ~ Y horized sferred and assigned rights shall automaticallau~ Vert to I of this Declaration and those Iran o ri ht to transfer and ination of the lease with Occupants or upon Oncupants un the Owner upon term as is rovided in this Section 1.5. Occupants nectionvwith the Owner's written transfer, p assign easement rights in this Article I nt feS~ and then only when all of the following consent to the transfer of the leasehold ises~ ii} ch Ieaseh~old interest is transferred in connectionmwith't{ e requirements are met (~} when su allowed by such lease encumbering the respectiVaeme~~ed P om time ~to transfer as may be such transfer is compliant with this Declaration, as may e when s to take subject to and to comply with ail terms of time, and {iii} the transferee agree e lease as they relate tc> the obligations under this peclara ton. Occupants under th ARTICLE Il: COMMC}N AREA MAINTENANCE Common Area Use: The Common Area will be used for: 2.1. s and for pedestrian and vehicular ingress and e9 ~1din bs {a) Parking of motor vehicle , em 1o ees, customers and other invitees, to and from 9 Occupants, their agents, p Y Common Area and adjacent public streets; .n Service rivate streets, seating areas and sidewalks a eacks,i newspaper (b} Parking stalls, p utters, flagpoles, btk Facilities}, wails, ramps, driveways, [apes, curbs, g ublic nes bus stogy s and similar facilities for accommas a t a fic and sales racks, public telepho ~ under round electrical ffic control areas, signals, traffic islands, land{ caged 9 e transportation, Ira ro rra arkin lighting facilities and monument signs with app p p g. connections, and all things incidental thereto, •ch will, if ' stallations serv,ng Buildings or the Common Area whi (c} Public utility ~n reasonably possible, be underground; of delivery and service vehicles to and from the Prope~y or (d) Ingress and egress any portion thereof and adjacent public streets; " wares, merchandise and the retention of services to Owners (e} Delivery of goods, and Occupants of the Property; (f} Perimeter walls and fences; reasonably required by the City of Cupertino's waste (g} If required by Law or franchiseelhau[er, recycling facilities or pickup points; aks Center. Declaration of CC&Rs & Establishment of Easements Final jd'1 ~ ~~~ 0 P aae 4 s-~ les collection facility, regardless of where it it is centralized trash and recyclab y at any (h} Any or where it may current! be located or where it may, currently planned to be located ' e in the future be re-located within the Prope~y• vements tam or Common o rthelParcels; and standards and any other landscaping (i) Lighting w or as may be consented to by the Owners} as may be required by La ur oses: (i} in ommon Area may be used for the following P p In addition, the C enanCe of utility lines so long as such activity is ection with the construction and malnt , ernents of Section 1.3 of this Declarationo~~e Conn undertaken in strict compliance with the regal barricade, structure or Law. No Building, cted or constructed within the Common Brea on an ii for any other use required by extent not () be placed, ere s~ ns to th Improvements may sates, pylon and other free-standing 9 ~ el except trash enclo aging, landscaping and Parc er uards or curbs, p s arking stalls, bump g herein prohibited) and directionaandards, driveways, sidewalks, walkwements as may be landscape planters, ltighttn9 st and any other lmprov columns or pillars supposing roof overhangs, this Agreement. aired under Laws or are otherwise permitted by req 2,z. Nfaintenance of Common Area ~ tea located on its ill at its own expense, cause the Commo condition and repair, (a) Owner w ood and clean rcel to be maintained at all times in a safe, 9 Pa including, without limitafion, the following. and evenly covered intaining the paved surfaces in a level, Called or such substitute as (l} Ma ' 'on with the type of surfacing material ortiginally in condltl for in uality, use and durability including ea h ual or super q within such Owner's Parcel not less frequently than on will in all respects be eq coin [lance with the coating the parking lot ~. rs from the time that such surfaces were last pave ~ five (5) yea herein requirements. wner's duty to maintain the Common Arextenlt Removing, as part °f O sweeping the area to the _: (ii} is filth and refuse, and thoroughly order! condition. papers, debt the area in a clean and Y reasonably necessary to keep ' ectional signs, kee ing in repair, and replacing approprtiate dlr (iii} Placing, p markers, lines and parking stall lines, where necessary; such artiftc~al Itght~n9 keeping in repair, and replacing overning the (iv) Operating, overnmental agencies g facilities as may be reasonably required by 9 - Parcels herein; rinkler airin automatic sp - inin all landscaped areas and rep 9 (v) Mainta g shrubs and other landscaping as is necessary; systems or water lines and replacing - aintaining and repairing any and aft walls and ut~l~ties; _ -: (v~} M cress to and from its Parcel and vii Maintaining free and unobstructed a _- ( } ~ and to and from its Parcel and the streets _ -- the adjoining portions of the Prope y _ - --- adjacent thereto; and - Page 5 ____~ ~ C&Rs & Establishment of Easements Final )d11o609 - - - Oaks Center: Declaration of C -- --_ 8-8 ' ainin the centralized trash and recyclables collection facility (vin) Malnt 9 nt undertaking such work will take all measures necesvsVaily be The Owner or Occupa such work. Such wo minimize any disruption or inconvenience caused by er or Occupant undertaking it in a reasonable mannhes Ownea or accomplished by the Own such work to any of damage or adverse effect which might be c ~ on which the work is being accomplished) is Occupant or to any Parcel (including the Parc~e such work will repair at its own cost any minimized. The Owner or Occupant undert~~king r h work and will restore the affected portion of anyia to of and all damage caused by suc el u on which such work is performed) to a conditiowo kcl iadd tion, the {including the Parc p r than the condition which existed prior to the be9i 1l icosts and expenses associated Bette such work wail paY a Owner or Occupant undertaking nif rotect, defend and hold all other Owner(s) ~ n n onnect on therewith and will indem y, P ' ' s damages, losses, costs, Expenses or claims arising out o , from all liabilitle ormance of such work. Except in cases of emerge l obey {aIl with or attributable to the pert ro riate under the circumstances wt which event concurrent notice or no notice app p other a!I such work which causes disruption or inconvehi theevvork ns being that is required}, ner or Occupant or to any Parcel (inc:hiding the POwne snten i(10) days prior written Ow accomplished) will be undertaken only after 9lvind nature of the work, the duration of the notice of the work to be underta oek'is to b~:operformed. work and the area in which the w Seatin Arf;a Maintenance. Each Owner wi11, at its t°lon and {b) Buildin. and Outdoor aintain its Building and Sf~rvice Facilities in first class order, con i and expense, m limitation, periodic painting of the exterior of the Building, repair, including, without and making other repairs necessary to maintaining the sidewalks adjacent to the fBs{diva s order, condition and repair. In addition, keep the Building and Service Facilities in establishments will ~. ner whose Parcel contains out~~ide seating areas fVehecula9traffic. each Ow ensure that such seating does not interferf: with pedestr4an or Owner (a "Defaulting Owner} violates this c) Owner's Ri ht to Cure or Abate If any . s Parcel to violate this Section 2.2, then Owner {each or Section 2.2 or permits or suffers any Occupant of it _ other remedy provided for in this Agreement, annotice the "Default in addition to any " ma demand by wntten -~ together, as appli~ble, the Creditor Ov- net'} Y faultin Owner does not cure the violation of a _ Notice") that the violation be cured. if the De g the _- ~ 'n ten 10 days after delivery of the Default Notice, o da sS and on- -- monetary obligation withi { } -= 's of a kind that cannot reasonably be cured within thmence}to cure such -_- monetary default i da eriod com. =-~- Defaulting Owner does not within suc~i thirth cu e} to completion, then the Creditor Owner ;: default and diligently thereafter prosecve.the ri ht to (i} pay any sum owed by the Defaulting -==- (and its agents and employees) will ha g thereto, (ii) enter upon the Parcel of the Defaulting O ar I r but - Owner to the person entitled Owner and sum Y -_- of the Common Area owned by the Defaulting or otherwise remedy any _ _ any portion --_ _ without committing breach of the pf:ace, ~ b{hes Sect on 2.2, and (iii) enter upon the -- 1 mprovement, thing or condition which violat - caner or ~+ny portion of the Common Area ownedeCbo ~~~ - Parcel of the Defaulting O { Owner to be p _ - : faultin Owner) and perform any of}ligation of the Defaulting = De g ~ ten '10 days of receipt of written demand by any thereon. The Defaulting Owner will, witr~inriate{ su porting documentation, reimburse the - ~ other Owner, accompanied by appr ~P p the Creditor Owner in . ~ r Owner for all reasonable costs and expenses incu~heoubh {iii} in the preceding Credito clauses (i} g undertaking any of the actions permitted by imitation, ~rvages, benefits and overhead allocable to the time sentence, including without 1 Page 6 • e laration of CC&Rs & Establishment of Easements Final jd114609 Oaks Center. D c 8-9 such actions, together with ded b any employee of the Creditor Owner s andlnexpenses were advanced or expen y from the date such cost interest thereon accruing at the Default In#erest Rate (as herein definsee )of~~r incurred by the Creditor Owneru Default interest Rate" is the rate equal to the les~ul rat . purposes of this Agreement, the nor (ii} the highest la r ercent (4%} per annum in excess of the "Pr ch f om time to time by Bank of America _ fou p The "Prime Rate" will be the rate announced as su or its successor. moron Area artificial lighting facilities, water lines afod 2.3. Common Area Utilities. Co 1 metered to the Parcel on which they are located ill remta n on other utilities will be separate y for security of the Property) the Common Area (other than lighting necessary haw, in which event the da until at least midnight (unless to do so is co ffe ~ tight g representing not less each y stem standard so prescribed will be adhered to while in e 25a/o of full intensity of the Common Area lighting sy than twenty-five percent ( } e Common Area, will remain on each day after m ~d able uniformly distributed throughout th to any Law or app it dawn for security purposes, unless to do so is contrary unt event the standard so prescribed will be adhered terwhiliS standard or requirement, In whither than lighting necessary for security ofi the Prop y) in effect. if "special" lighting (ot an Owner or li htin is required for a time later than the foregoi re u cements will, if required or if regular g g f the Property, then the electricity to service sues hereof willq be paid by such Occupant o reasonably feasible, be separately metered vial slervi ce. Should separate metering not be Owner{s} or Occupant(s) that require the spe le then the majority of the Owners and Occupant abas htin9 possible or economically feasib , sed s ace shall agree to a reasonable allocation of spe 9 square footage of lea P costs. gRTfCLE Ill: RESTR4CTlONS ermitted in Parcel B will be of a retail andlor 3.1 U~ es: The types of uses p on tom arable properties of similar size to the City of Cupe ino commercial nature found p the City of Cupertino Chamber of Commerce, metropolitan area as such may be defined by es of uses ses that are consistent with the use of Parce! B. reto eAl u ses in the and, in all events, u Parcel will be Hotel and office use and uses rCateodf Cupertino. No overnight permitted in osed by the y Owner Property must comply with all requirements imp be authorized by arkin will be permitted in the Common Area except as may authorized activity of p g ccu ants under the terms of a lease or in connecti arkin h and it is compliant with andlor O p Owner andlor Occupants that requires such °cecumstances shall such overnight parking requirements of the City of Cupertino. Under nu ores of anyone. be permitted for inhabitation andlor sleeping p P when made at a time ,2, Exclusive Uses: In that this Declaration ~ chb Declarants have committed 3 Declaran#s' Property is subject to leases under w nt's exclusive uses, this Declaration shall have nosives uses, themselves to certain Occupa such pre-existing exclu a lication to them and Declarants, in ackn sol as togaffect such contractually committed pp rovisians of shall not do ar cause anything to be done sistentl with the provisions of Section 8.14 and indemnity p exclusive uses, con Y Section 5.1. Owner covenants that it will make good and re~sn na hie 3.3 Enforcement: Each the covenants set for#h in Sections 3.1 and the commencement efforts to enforce ement of arbitration proceedings under Section 8.16(x)-(b or comment Pane. 7 Oaks Center. Declaration of CC&Rs & Establishment of Easements Final jd1'i06Uy 8-10 1 ~ c to revent or to terminate any violation of the provisions of an action under Section 8. (} P of Sections 3.1 and 3.2. ARTICLE 1V: PYLON SIGN Deleted ARTICLE V: INDEMNIFIt~ATION AND INSURANCE hereb indemnifies, holds .7. Indemnification: Each Owner ("li~demnifying Party") Y 5 ies " from and against a1! nd defends the other Owner ("Indemnified Paeasonable attorney's fees and harmless a without limitation, r claims, damages, expenses (including, discove costs}, liabilities and judgments on accoudntbof inl~the reasonable investigative and ama e o property occurring on its Parcel cause y to persons, loss of life, or d 9 without limitations, liability including, business activities of the Occupants and Owners, e active or passive negligence or willful misconduct Part arising out of Article 111, and (u) th rovided, the Indemnifying Y f ndernnifying Party, its agents, servants or employees; p loss of life, or damage which is does not indemnify the Indemnified Party al~ainst any injury, ive ne li enca or willful misconduct of the IndemThed arties' caused by the active or pass 9 9 in the Property, or their agents, servants or a ep#o Been Withstanding the other Owners g riot to the bli ations with respect to indemnification hereunder c alms wising or accruin p o g the expiration or termination of this A a~eoennent, as o expiration or termination of this Declar a tees to Insurance Covera a c~nd Limits for Owners: a acOh Oe era policy of 5.2. LiaMilit andlor cause ~ to be maintained, at no cost tonth #s°nterests against claims for maintain, insurance with commercial general liability insue~n damage occurring on, in or about such bodily injury, death and prop y persona! injury, tractual liability coverage that shall include coc rsgall be Owner's Parcel and with con rovisions given in thi:~ First Amended Declaration. Such p° liability and Owners Indemnity p liabiiit bodily injury ersona! injury Yf fora "Combined Single Limitn (covering p o such of less than Two Million Dollars ($2,DOO,000.OOn f ~ r Iota property damage liability} of n ne occurrence and shall include an additional insureod a tdoif the insurer is claims for any o overin every other Owner of Parcels comprising the p Y policy c 9 authorized to issue and will issue such arI endorsement. ' his: With respect to any loss or damage that may o ar sino 5.3. Waiver of Certain RI im rovements or the respective Parcels of the Ow e insurance policy, the Property (or any p an eril customarily insured undE:r a fire and ex~Snb~ including negligence of the from Y p regardless of the cause or origin, excludin ee ill thea~wner suffering such loss hereby Owners, their agents, servants or erriploy , a{l clairr-s with respect to such loss; and the Ow n a a nst releases the other Owner from ' res ective insurance companies will have no rigne of~sli~ broogcure from its agree that their p ;;uch loss, and each Ow P the other Owner on accounf of any 'se have olicies of mire and extended coverage insurance a waiver of a1 respective insurers under all p ' n a ainst the other Owners which the insurers might otherw rights of subrogatio 9 under such policies. this Declaration may . Po{ic Re uirements: Insurance coverage req pVeaa be is not diminished, the 5.4 contain the #ollowing elements, so long as the reps ithereof are otherwise commercially required limits are not ~ reduced, and ~ oe ram moray include blanket, layered, umbrella, reasonable: an Owners insurance 1 g cri t form: of policies, as well as retention levels and oss conventional andlor manus p Qaks Center: Declaration of CC&Rs & Estat,~isnrnent of Easements Final jd1106o~ Pace 8 8-11 ainst earnings or otherwise funded, and commercially reserves which are charged ag reasonable deductibles. nit A reements: All policies of liability insuran me ~ls 5.5. Performance of lndem ance b fihe Owner insured thereunder of the lnod annlasserted claim insure the perform Y - notify the other Owner y contained herein. Each Owner will promptly be indemnified against hereunder and will with respect to which such Owes ofs rocess and pleadings. deliver to such other Owner cops p - LE Vl: DAMAGE OR DESTRUCTION, CONDEMNATION ARTIC is damaged or e or Destruction: In the event any Building in the Phe Owner of the Parcel 6. ~ . Dama stro ed by fire or other casualty or any other cau t~ nhe ther tear down or rebuild/restore de y upon which such Building is located will, ~ ner determines to tear down a damaged Building, the damaged Building. However, eb Id a new building on the same location or leave and that Owner will either promptly r on which the Building was located in a smooth, le awn ordother maintain the Parcel of land avln 1 clear of all refuse and weeds and sealed againsta ed or destroyed will forthwith free and cause whatsoever, the Owner of the Common Ar on Area to a condition to permit vehicular proceed with due diligence to restore sthcs Ao reement} and free and safe vehicular ann parking (in the manner required by g and to and from all streets ad~ace pedestrian access and circulation in the Property thereto. art of the Property is taken by 6.2. Condemnation: In the event the who°f Lawathe entire award for the value of the right of eminent domain or any similar authority ett so taken or to Im rovements so taken will belong to the Owner(sand no other Owner of land in land and p ear, their Occupants, as their respective intuch award by virtue of any interest created by this the Property will claim any portion ofs fie a collatera[ claim with the rovided, however, any such other Owner may Declaration; p rand above the value of the land and Improvements being so condemning authority ove verable an damage suffered by such Owner resulting from oh nt eecoance o taken to the extent of y taken rovided such collateral claim does not diminal tak ngi the Owner of the the area so p b the Owner of the property so taken. In the evean easonable time, restore the remaining y - ert so condemned will, within portion of the Prop y owned by such Owner, including Improvements in the Common portion of the Property ust rior to such condemnation, without Area, as nearly as possible to the condition existing j p of the area not so taken and any condemnationwever of contribution from the Owners lied for such purpose provided, ho , necessary therefor will be held in trust and app ro ert in the e including any beneficiary under a deed of trust) of any p p y any Mortgage ( e or other security makes the requirement pursuant to a provision iensat n go gseverance damage Property instrument that the portion of the award repreaseeen9 enmhe party required to make such to property not taken, be paid to the lUlortg 9 l such portion of the award to ayment to such Mortgagee will not be oblig~oedleer sandy pave for parking and restore p restoration, except to the extent necessary Common Area facilities. ARTICLE VII: TAXES Each Owner wll Real Property Taxes Oaks Center: Declaration of CC&Rs & Establishment of Easements Final jd'i 10609 r cause fio be paid directly to the tax collector whenud n ~ the I pay o ert owned by such Owner, lncl g assessed against the prop Y Page 9 8-12 d b such Owner. An Owner will have the rigeviewed, portion of the Common Area owne Y i~o contest or protest or seek to have r own cost and expense, and in its own name, ~ Tax or other special tax or assessment reduced, equalized or abated any Real Property such tax or assessment and thereafter filing a n{C with levied upon its Parcel by first paying such other remedy as m;~y be available under and In accor a refund or pursuing 'ions in Occupancy Agreements by which the00 neerof State Law. Regardless of provrs be altered, each this obli anon to pay such taxes directly to the tax ~ °remain obl gated to one another by g the Property shall ult~rnate y parcels comprised by provision herein. ARTICLE Vlll: GENERAL PROVISIONS demand given or served by one Owner to anoth ersonally 8.1. Not__ ices~AnY notice or to have been duly gi~'en or served unless to d rl~a } a et p receipt will not be deemed ostage prep~~id certified or regtstere delivered or forwarded by p fall recognized means of delivery. Notices to Declarants requested, or by another commerc y shall be addressed as follows: dens Investment, LP To Declarants: Mo Sunnyvale Holding, L>+C Inc. c/o of Homeland Management Group, 14550 C)ak Street Saratoga, CA 95070 deemed effective upon receipt. The person and place to Notices and demands will be e iven may be changed by written notice to the other Owners. which notices are to b g e event legal proceedings are brought or comme~~ld an 8.2. Attorney s Fees: In th Owner or other person enforce any of the terms of this Declaration S9 ch action will be enti#led to receive and will the successful party In 's fees and costs, to be interest in the Property, • e from the defaulttng Owner, a re~~sonable sum as attorney receiv fixed by the court in the same action. tion will remain in rovided herein, this Declara rovided, 8.3. Duration: 'Except as is othennr~se p ears from the date hereof; p full force and effect for a term of sixt~~-fi aromatically and without further notice continue however, the term of this Declaration will a ears unless at least six (6) months in full force and effect for successive terms of five (5) Y ear extension, ion of the initial term or of any such successive fi o SSection 8.4 of this prior to the exp~rat e will be recorded an instrument conforming to `S De ~arartian applicable to existing then A reement. Nothing herein is intended to is on may conflict. 9 (eases with which these covenants and ~ es r ma not be rovided herein, this Declaration y 8.4. Modification: Except as otherwise p except by a writing res ect whatsoever or rescinded, in whole oast P~ one percent (51 %} of modrf+ed ~n any P of which shat{ ed b Declarants or their succes~~ors as Owners 1ef aat le modification(s) execut Y the Property, except for the provisions in Arttc[e 1, abo , require the express consent of the City of Cuper#ino. or Nothing herein contained will be deemed to be urgoses 8.5. Nat a Public Deod~rhe Property to the general public or for any publr p p dedication of any portion Paae 10 -- s Center: Declaration of CC&Rs & Establishrnen~Easements final jd110603 Oak 8-13 wners that this Declaration will be strictly limited whatsoever, it being the intention of the O to and for the purposes herein expressed. lication of it to : If an term or provision of this Declaration forceable the remainder 8.6. Severablllt y extent be invalid and unen any person or circumstance will to a of such term or provision to persons or circumstances of this Declaration or the application ' invalid or unenforceable will not be affected to the extent other than those as to whrch it is of this Declaration will be valid and will be enforce each term and provision permitted by Law. and the iced b context, the singular will include the pheal business 8.7. Pronouns: When requ y ' include a person, corporation, firm, assoclat~on, or o neuter gender writ arrangement. 's Declaration are for convenience only and do not g.8. Ca_ t~J~ The capt~oS hereof. constitute a part of the provision 'on are not intended to create, Not a Partnershi :The provisions of this Declarati artnership, or any other a.~. e be in any way interpreted to create, a ]Q1 rued bu this Declaration. nor will th y Owners gove Y similar relationship between and among forced in accordance nin Law: This Declaration will be construed and en a.10. Giver ' and overned by the laws of the Sta#e of Cali~ornta. wtith 9 aration will be interpreted and be construedvorlof or 8.11. No Presum lion: This Decl ill be no presumption or standard of construction fa the contents hereof and there w against any Owner. covenants, benefits and inurement: This Declaration and the ea e b ndin9 upon each Owner and its 8'12. will inure to the benefit and b obli ations created hereby an Owner conveys all of its interest in any P~ther g rovlded, {t} if y and all successors and assigns, p it if the buyer Owner will thereupon be released and discharg o veyed by owned by ~t, such ' lions under this Declaration as fee owner o! t no such sale will release such Owner oblrga assumes in writing all of such obligations, and al or contingent., existing as of the time of such conveyance. from any iiabtlit~es, actu on re nest by an Owner, the other Owner wslesof esuch 8.13. Esto el Certifrcate. Up q Owner or to a prospective purcha ective lender of such requesting prose el certificate stating: requesting Owner s interest, an estopp the requesting Owner under this default by (a} whether the Owner knows of any er known defaults, specifying the nature thereof; and Declaration and of any oth d e this Declaration, as of that date, continues to be (b) whether, to Owner's knowle g , in foil force and effect. ts. An Occupancy Agreement entered into after the 8.14. Coin fiance b Occu an of uch Occupancy Agreement will be subject h an date hereof must provide tha of lh sr Declaration. Any Owner who enters into suc rovisions Rance by such Occupant with this respects to the p comp onsible for assuring herein, an Owner hereunder may agreement will be resp an hsn to the contrary Declaration. Notwithstanding Yt g Page ~ ~ Center: Declaration of CC&Rs & Establishment of Easements Final jd1 ~ D~iUy Oaks 8-14 to fulfill the obligations o~F an Owner hereunder provided that Otl owner cause tits Occupants liance by s~~ch Occupant with this Declaration es onsible for assuring comp be r p each of obligation hereunder. b r will remain liable for any able Consent: Except as otherwise specifically provid on the t airt 15. Reason rovai to any action p 8 . Declaration, if an Owner is required to give its ~i~! ~ t be u reasonably withheld or delayed. nt or approva t , of the other Owner, the conse r time eriods to give or deny consent are provided in this Ag~eol~o~ ~ t where othe P Exce th {10 bu s p ~cal sent will be deemed granted at the end of the ten to this Section refers con ided such delivery of a request for consent, prov wilq be deemed granted at the end of the that consent 8.15 of this Declaration and states unless a written denial of consent f th r ed tenth ('10th) business day from delivery o ~ fore~the end of the tenth 10th) business . ecific reason for dernai is deliver uested the s re th ti p q e ng sta of the request for cortisent. in the event n~ w 11 have ance day after delivery ill be entitled to specs c unreasonably withheld, the other party w o at Law n edies as are reserved to it under this Declarattio such other rem ative Dis ute Resolution: Any claim or dispute arising out of ettledabnghe will be s a.16. Ahem im or dispute l , a A reement, regardless of the nature of the c this g parties hereto pursuant to this Section 8.16. . If an claim or dispute arising out of or relating to this Declardasionte the (a} Medtat~on Y e of ti l e c ~ led b direct discussions within ten (10} days after no n binding mediation no sett y disp ith #o settle the cia{m d f y ~n) a under its Commercial arties agree first to try in goo ion p the American Arbttratti~~n Associa administered by Mediation Rules. Arbitration. if the parties fail to settle a claim or dispute throng G mm`er~c'al (b) Binding AAA bitration admmtstered by the d ._ ,t may be entered in will be settled by binding ar r s It d rendered by the Arbl rbitration Rules. Judgment on the awar A - any court having jurisdiction thereof. art from nal Relief. Nothing in this Section 8.16 will prevent either p dis ute. (c} Prov~sio re ardmg any claim o p 9 rovisional judicial ill be i ny =- = - ng a p applying for or obtain he claim or dispute w of olutio Notwithstanding such application, the i~~nai res 16 and failure by either party to comply with any n 8 ti _ . o itrated under this Sec mediated or arb ive such party's rights to mediate or arbitrate under this - wa law will not be deemed to - = - Section 8.16. _ _ - on#ext clearly and reasonably indicates otherwise, the finitions: Unless the c D - - _ e 8,17 in definitions are intended to appl~- to this First Amended Declaration: follow g _- - - u ~~ he access area or drive areas depicted an Exhibit A, 1. Access Area means t o and such other driveways and are of h - =---- c , erE~ re reconfi uration t ca! access including any tutu 9 established from time to time as areas within Parcels ov or beneficial or ingress and _= _-_= easements between or among adjacent Parco~e~~nts thereon. d from such Parcels or the l mpr -= egress to an n any Parcel which is enclosed h n t ::_-_. _ -- o ~~ ~ ~~ ns an structural improvemen 2. BuEld~ng mea y and roof and is designed for human occupancy an ntse conduc fl ' oor wails exterior , d business by the Owner or Occupant of such lmprovem of activities an _ _._ _, Page 12 Oaks Genter: Declaration of CC&Rs & Establishment of Easements Final jc1110609 8-15 California and any individual departmen#s or 3. "City" means the City of Cupertino, ncies thereof asserting jurisdiction over the Property. age u on which there are within the PropeS~Y P 4. "Common Area" means all real property or under construction which are devotes to the no Buildings or outdoor areas ex+sting ecifically excluding any Service Faal+t+e exclusive use of any Owner or Occupant, sp ~, a that this Declaration is recorded in the offices of 5. "Effective Date means the dat the County Recorder. arkin or " eans all Buildings, Service Facilities, outbui! sing orage areas, 6, '`lmprovement(s} m curbs, Butte , arking garages (if any), roadways, walkways, exterior air loading areas, p oles, signs, exterior lighting, trees, facilities, fences, mass or large plantings, landscap+ng, trash enclosures, sment~ hedges, berms, i es, electrical lines and condition+ng equ+p eS, water lines and water p p lines, pipes, and conduits, lighting standardseand fi ures, shrubs, sewer lines and sewer pip reto located electrical conduit and other util+ty urtenances th and any a s ramps and al! other structures of an ~ boundar esp of the Property, sta+rw y , above or below the ground with alterations thereto of any kind whatsoever. replacements, additions, repa+rs or 5,~ of this Agreement. demnified Party" means the party described +n Section 7. "ln ~~ s the arty described in Section 5.1 of this Agreement. g. "Indemnifying Party mean P constitution, ordinance, resolution, regulatioo~, other 9. "Law" means any statute, state, federal 've order or requirement of any municipal, county, in effect as of the administrate urisdiction over the Property governmental agency or authority having j ereafter be enacted, adopted, amended or modified. Effective Date or which may th of trust encumbering a u a e" means any duty recorded mortgage or deed 10. Mortg 9 Parcel. ~ under any " means and refers to the mortgagee or beneficiary ~ 1. "Mortgagee Mortgage. ~ 2. "Occupancy Agreement" means reement between ground lease or other ag onduct its business in or on a lease, sublease, assignment agntitle can an Owner and any Occupant that e the Property and utilize the Common Area in Occupant to c connection with its occupancy. ,: association or other leg ct oftits erson, firm, corporation, 13. "Occupant means any p d utilize any portion or portions of the Property for the con entitled to occupy an A reement. business pursuant to an Occupancy 9 arcels Declarants and (ii} prospective transfierees of p ~ 4. "Owner" mean h y+ding fee title to any portion of the Property. comprised by the Property trust, individual, partnership, firm, association, corPe al entity. 15. "Person means any enc ,administrative tribunal or any other form of bus+ness a governmental ag y Page 13 er: Declaration of CC&Rs & Establishment of Easements Final jd110609 Oa4cs Cent 8-16 " Bans a fraction, (a) the numerator of which nlominator 16. "Proportionate Share m the de e Buildings} situated upcn the Owner's Parcel ~t d (b) square footage of th 's the total square footage of the Buildings within the Prope Y of which 1 assessments, ~° Pro ert Tax{es)" means amp form of real or pe d andan tune whatsoever, ~ 7 esallevies, penalties, impositions or taxes of every kl fees, charg b an authcsrity having the direct or indirect power to tax, assessed or levied or imposed y y n an City, County, State or federal goverNrhether oor not including, without Ilmltatio , Y or assessment district of amt kind or nature we as1 o equitable interest or Improvement against the Parcel or any 9 eration thereof, or t e consented to or joined in by Owner, r now or herein or any personal property of Owner used - of the Parcel, whethe Owner t ownership, leasing, operation, management or occupan y r not now customary or in the contemplation of th dptaxes hereafter imposed, and whether o inheritance or estate taxes an on the date of this Declaration exceptincal Pro erty Taxes will include without limitation measured by the net income of ~ senriceepayments in Lieu of taxes, excises, possessory general and special assessments, Toss receipts taxes, transit assessments interest taxes, business or license taxes or fees, g subsidy fees andlor care subsidies fees ancUor assessments, 3obsubs dies andlor housing fund or fees, child assessments, open space fees andlor assessments, housing other fees or ents, public art fees ~~ndlor assessmentsciojodical or fiscal effects of fees or assessm of the Parcel, sments imposed in connection with t'~e environ aeemlent or occupancy asses leasin , o eratton, man g the Parcel or the ownership, g p ancy of the Parcel or any part thereof, or In any tax, fee or excise on the use or occ.up other tax, fee or other ;; ace in the Parcel, any connection with the business of renting p that ma be levied or assessed as a substitute for, or as an excise, however described, y Taxes. addition to, in whole or in part, any other Real Property dock areas (including ramps related loading 1g "Service Facilities" means any clusivel for drive-through facilities, patio seating areasd, esidewa Y thereto), trash areas, areas d'acent to Building and other facilities which are or become us Immediately a 1 by a single Owner or Occupant. as of the date first ESS WHEREOF, this DE~claration has been exne al Manager of MODENA IN WITH Inc. the duty authorized Ge above written by Prato Retail Groupnc tl~e Managing Member of SUNN1(VALE HOLDING, INVESTMENT, LP and by CLDZ, , sole Members, SHAWN T1~HERl and HABIB ZAKERANI. LLC and by Its DECLARANTS: MODENA INVESTMENT LP b Prato Retail Group, inc.; a Cali rnia corporation, y Its Gen raj Panne By ,~- Shawn Taheri, Pr ident SUNNyVALE HOLDING, LLC By CLDZ, Inc., a California corporation PanE? 14 ks Center: Declaration of CC8~Rs & Establishrnent of Easements i=inal jd1106o'~ o~ 8-17 Its 111Iana 'ng Member By c Sha n aheri, Prestden e Hai Zakerani, Member Taherl, - - Page 15 :-. of CC&Rs & Estab{ishment of Easements Final jd110~Og = Oaks Center: Declaration 8-18 ALL--PURPOSE ~AL~~o A owL~~~M~~T FICATE 4F AC,~ ~ERri`I State of California County of ~~°' C~~' .ng.~.- ,~ g~c ~ Cn ~~v~"`~- W { ?.oaS before me, (Here insert name and title of the officer) personally appeared are subscribed to whose name(s) e on the basis of satisfactory eVidenc~ to be the perso~ea the same inarisfhzr/their authorized who proved tom ed to me that p,~~shc/they execu on behalf of the within instrument and acknowledg or the entity up ~~ltheir signature(s) on the instrument the Person(s), capacity(ies), and that by which the person(s) acted, executed the instrument. e l,~ws of the State of California that the foregoing paz'agTaPh 1 certify under PENALTY CF PER3URY Wider th is true and correct. ~ --~ ~~Y ~ • Corr~niss~n ~ 1627844 Pbt~l PubNc - Ca~omio WITNESS my hand and official seal. ~,te c~a ecxnN . . ~ 1,If;, Canrt,. Eicjalre~ Dec 8, 2oE}9 (Notary seal) Signature of Notary Public TION ADDITIONAL OPTIONAL Il~oRMA OR COMPLETING THIS FORM F DESCRIPTION OF T'I~ ATTACHED DOCUMENT' 0~ ~ C ~ ~. ~ ~ A~3CIS~ (Title or description of attached document) D ~ ~Pr~M ~~ N L~~ (Title or description of attached document continued) Number of Pages ? ~ Document Date (Addit oni~alu>formation) CAPACITY CLAIlv~D BY T~ SIGNER ^ Individual (s) D Corporate Officer {Title} ^ Partner(s) ^ Attorney-in-Fact ^ Trustee(s} D Other ~~ TNgTRUCTIONS ~ Any acknowledgment completed in California must contain verbiago~ must be crppeai-s above in the notary section or a separate aclvea-i'ledgment r properly completed and attached to that docarmerrt. The only exceptioa1~~Q v document is to be recordeed Sumo a bf ~ tee o sucirca document so long as the acknowledgment verbrag y to do something that is illegal for a notary in verbiage does not require the notary the si er Please check the Cal forma (i.e. certifying the authorized capacity of ~ ~' document carefullyforproper notarial wording and attach this form f required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for aclmowledgment. . Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completes thin his or her . The notary public must print his or her name as it app ublic commission followed by a comma and then your tide (notary p }' • Print the name(s) of document signer(s) who personally appear at ~ time of notarization. . indicate the correct singular or Plural forms by crossing off incorrect forms (~.e• or circling the correct forms. Failure to correctly ind~catc this l~elshe/fi~~; is lafe ) information may lead to rejection of document recording. bicall re roducible. . The notary seal impression rriust be clear and photograp Y P Impression must not cover text orc~l~es.~ a aa~e ~nt~~aN,~odg ent form tf a sufficient area permits, otherwise p Signature of the notary Public must match the signature on file with the office of the county clerk. aired but could help to ensure this •;• Additional information is not req aclrnowledgrn int ise f n~c ~ doc~ ent, number~of pages and date. Indicate tide o tyP er. If the claimed capacity is a •;• Indicate the capacit)~ claimed by the sign corporate officer, ycnt tott e s gned documAn CFO, Secretary). . Seciffely attach this locum oppg~ ion CAPA v12.10.07 SOtI-873-9855 vvwv++.Not~7`Classes.co n 8-19 EXHIBIT A (Attach Description of ProperfY} ~__,. , a~~ ,.. Qaks Center: Declaration of CC8~Rs & Establishment of Easements Final ~d110fi09 8-20 E~'[T A pRUPEItTY DF;SCR~IP'T'Y~N ON THAT CERT~tIN PARCEL MAP FILED FEBRUARI'~ 17, 1972 ALL OF PARCEL 1 AS SHOWN OF MAPS, AT PAGE 41, SANTA CI.ARA CONY RECORDS. IN BOOK 296 WITHO~ RIGHTS OF gp~G ~REFROM THE UNDERGROUND WATER RIGHTS, EXC YED TO THE CXTy OF CUPERTnvO BY DEED ~CpItDED SURFACE ENTRY, AS CONS H 27 1972 IN BOOK 976x, PAGE 68S OF C-FFICIAL RECORDS' MARC , A.PN: 326-27-03 S irry':ttOt242.28 8-21 EXHIBIT B {Attach Description of Parcel A ~ ks Center: Declaration of CC&Rs & Establishment of Easements Final jd11060y o~ Paae 17 s-z2 rj zz ~ t iO~ ~~~ «~ ~ ~ ~~ ut Z z ~ ~~~F ~~~ ~~ o ~,~y1j~~ ~ ~ ' ~ ~ W~ yj t Sry ~ ~ ~ s4$~ ~~ ~ 4 . a0 ~t~a ~ Y ~ ~~ O~ ~ ~ ~~ i i .I ~ ~~ ~ ~x ~~~ w xz Q ~ '~i: ~ ~o~ ~~~~~ ~ w~ ~~~ -+~~~~ z ~~ tea. ~~~~ ~zz ~~ ~~~~ y ~ z r ~ d ~ ., ~~ h ~~ ~~ a a~~i ~~ ~~~ ~~ ~~~~ @ i-``~c°S3 Z ^ ti r3 •.. -- r'E~~, r~ ~s'ei ~ '~ h~ _ -~-~_~ ., sa a ~~~~~ !~ "~y ~6}~ ~ r ~~. ~~~ $.~ ~,~ 1 ~~ C~ ~`~ ~~ ~ ~ ~~4 $~~ #~ ~C~ ~ p ~ ~W ~z ~ Q ~h ~~ tqo <HO ~~~ ~y~ F W1 ~ 'M ~~~~ ~ pp ~~ m 1n F~ F~- ~~ ~ ~(n y~~z~~i. Q ` ~ W ~ Z ~ ~~~ (.~ H ~4 ~ S M <CS l h~ ~~a 2 ~~~ a ~1 O • ~~ f 1 O t ~~.~ I 0.:4 1 ,o`, ~ ~H"e 0 c x ~ ~ R ~ d ~ W rl H ti ^ a~ 8~ b ~ ~ r C o~ a ~ ~~~ ~ ,(0'96 R 3.G9,9- ,L9Y ~~ 64.39 ,~, ~ ~~ ~ ,Cl'LG 6° n ppatl 61 t~ Qp. ~ g AA y z$ '~ / . / 'a 'pig' !saw ior.saooN„ ~- ____ r ~ Q f/ ?~~r ,OpT ` Y ~~~'•~ 19•s9 ! 1 Clf6{YMff ~' ~ °~ 11y 9e ~ 1 J 1 ~~ ~~ S ~~q \f , ~~, ON 4S f.L9i 'D7 39yd ND f~, ~3N1Z~0 aNV !c xv Gaes aaa ~r~nasr3 ns :~~'d D xm u+1 N3:/ ~ 1 i' r v - 391f1 .01 d ~ ~ ` J ,or ,~~ yf~ 3.~.o~J Y e j ~ l ~O ~ ,~ ° ~ , el a -~ ~ W g ~ ~~ W ~ yy~ e~ „ bt.. Z NN~Otl t ~Y~'~ ~ V ~ ~ N ~ t .. a M " ~L Q m~t ~$ „x~ Ir i ~r 1$ 4. ~'~ a~ 1 ~ ~~-~ h !bV ,Li .t~ 1 I l 7 J/1 r 1 r _ r:~ aZ,B9,L:S9N Q W U` b Q ~f 4 N~ k 0 N 4 a W 0 w j W II U I N ~ W W N _.00"99 _ 3,OZ,K.99N N, '~ ~ WAY / F ~E ~ Y ~ ~ t6'4 '~,~ R 4 ~ z x } ~ 0 8-23 EXNlBIT C Attach Description of Parcel B ) Page 18 Oaks Center: Declaration of CC&Rs & Establishment of Easements Final jd11p6fl9 8-24 • Op ~ ~ ~ ~ ' i ~n ~~ ~ G} r Q O ~ ~ FCCC~777~ ~~ C ~ ~ ~ N < ( h~ ~ ~ '~ ~ ~ ~ o Q O~ ~ ~~ °, ~~ i°o ~~ V ~ ~ ~ ~~~~ ~ ~~ ~ . ash ~ ~-z ~~ ~ ~ ~ d~ ~~~ ~,~jya ~~~~~ ~ s~ ~~~~ u~z~~~< ~ ~4 ~'~~~ ij` a3~ ~~ m~ ~~ ~. N ~ ~ ~N~ Z •~ n} ri ..,. -- 1 ~ zr~ i sy ~'r 6 •~t _ .r a o r ^~ ~s •r,~ ~A~ M x U WW ~~~ ~~~ ~~ ~ d ~Wq+ ~ ~N t< W~ ~ ~ ~~~ ~ ~ ~~ ~ w ~~ ~~~ ~4~ ~~ ~~o~~~ ~~ $i4~54 ~ti 'o~~x a~a C t • • ~^ ~ ~~ ~ ~ a ~v r d ~ss ~- ~~ N ~mn 2 r m ~ "w{ r y ' ~ ~~_"~'T ~o'os l` /~ ~' .sow _ ,co'c i Do9,~ 6~pf ~~*1 V~' d' p~al~ 6,3 .-'~ 6~., ~. P ~ ~~ ~~ ~ ~ ~ ? ~~ ~ E~ ~ 8 ~`Y /~ ~p % ~ '[~ ~1O g` is~arl ~,orsaaoN~ ~ I / ~": ? g ~~'~'4 r R ff~ 9 $ i ' q J rlU~~~ W ;3s7'd lID Qil Y3NfLa0 ~+Y ,t •~n ~ ~d t~sv3 na 3s^r'd , __ ,z+ .a' - ~,ts,ror~ 3 oracowr r , I o ~ -, o 2 n y W ~~~ tea! ~ I- b? ~ n ~ ~ y w~`~ ~ ' .. _ 4 N 'gw ~ ;~ u o~c + ~~ ~ Q NN 1 Q~ , ix 0.~~ ' q ~~ D i ~ I ~. ~ i a ,~ ti ~on ~ ~~ ~ Zt ~N W~ V ~ ~~ a~ a ,p9 ."~ ~ T w ~ ~ ~ FR~~ ~ ~.D!;~o=s ~~ ,,,6~5~' Wks (H-GHrN Y .~..~_~____~' s ~ ~+~ .. 0 0 N x N a W m W a U W I w i N a x 8-25 a.oozc.caw DEFERRED 1MPR4VEMENTS AGREEMENT- MINOR SUBD1V1S1~N This Agreement, dated S~M~ ~~2009 is made by and between the CITY OF CUPERTINO , a municipal corporation ("CITY"}, and MODENA INVESTMENT LP, a California Limited Partnership, by Prato Retail Group, Inc., its General Partner, and SUNNYVALE HOLDING, LLC, a California Limited Liability Company, by CDLZ, inc., its Managing Member, Co-Owners ,with principal offices at 14550 Oak Street, Saratoga 95070, California, hereinafter collectively referred to as "SUBDIVIDER", in the light of the following Recitals all of which are deemed incorporated into the following Agreement: RECITALS WHEREAS, SUBDIVIDER is the owner of improved real property (Oaks Shopping Center- Parcel 2 as shown on Tentative Map} and of partially unimproved Parcel 1, as shown on the Tentative Map attached hereto as Exhibit A, consisting of approximately 8.1 acres of land lying in the CITY OF CUPERTINO, County of Santa Clara, State of California, known as the Cupertino Oaks Subdivision ("the Subdivision"} ,and VIIHEREAS a Tentative Map of the Subdivision was approved by the City Council on September 2, 2008 subject to conditions contained in the City's Resolution of Use Permit and Architectural and Site approval, and WHEREAS Sections 18.16.190A and 18.32.80 of the CITY's Municipal Code, regulating the subdivision of land within the CITY require that SUBDIVIDER execute and file an agreement between itself and CITY relating to improvements to be made in a subdivision prior to the approval by the City Council of the final map, NOW, THEREFORE, the parties agree as follows: 1. RIGHTS-OF-WAY. SUBDIVIDER offers to dedica#e a!i lands, rights-of way, and easements shown for dedication on the final map of the Subdivision. All such offers shall, remain open, and shat! constitute irrevocable offers of dedication in accordance with Government Code section 66477.2. A11 such offers maybe accepted by CITY in its sole discretion at any later date without further notice to SUBDIVIDER as provided by law. 2. IMPROVEMENTS/DEFERRRAL. (a} Deferred Im rovements: SUBDIVIDER agrees #o submit for City Approval, in accordance with Municipal Code 18.16.160, Improvement Plans as required by Article VI of Chapter 18.32, Soils Report in accordance with Chapter 16.12, Improvement Bond Estimate that shall include all improvements within public rights-of-way, easements or common areas and utility trench backfill as provided by the Subdivider, except for those utility facilities installed by a utility company under the jurisdiction of the California Public Utilities Commission and Hydrology and Hydraulic Calculations for storm drains, and to enter into an Improvement Agreement in accordance with Chapter 18.32 improvement Agreement, all such work to be done within the time provided in Section 2. (b} below; (b) Time Deferral: Deferred Improvements Agreement: City of Cupertino-Cupertino Oaks Fina! Map jdrev#2-90617 Page 1 8-26 (i} SUBDIVIDER agrees to perform ~~nd #o pay for performance of work to be done in accordance with Section 2.{a} above, and SUBDIVIDER further agrees to complete such work on or before forty-eight {48) mon#hs from the date of this Agreement or such longer period as may be authorized by the City Engineer. Should the work not be completed within the stated time, then the provisions of Municipal Code 18.32.080 shall got-ern the rights and obligations of the parties (ii} On or before issuance of construction permits, SUBDIVIDER agrees to provide such improvement security required by Article VIII of Chapter 18.32 as may be applicable to SUBDIVIDER's performance of work described ire Section 2.(a} Any such bonds submitted as security pursuant to this section shall be execute~al by a surety company authorized to transact a surety business in the State of California and shall be in a form approved by the City Attorney. 3. SUCCESSORS AND ASSIGNS--COVENANT RUNNING WITH THE LAND. This Agreement shall inure to the benefit of, and be bi~~ding upon, the successors and assigns of the respective parties. It shall be recorded in the Office of the Recorder of Santa Clara County concurrently with the final map of the Subdivision, and shall constitute a covenant running with the land and an equitable servitude upon Parcel 1 of the Subdivision shown on Exhibit A hereto. 4. ATTORNEY'S FEES. In the event it becomes necessary for either party to bring an action with respect #o the enforcement of the pro~~isions of this Agreement, the prevailing party in such action shall be awarded reasonable attor-ne~-'s fees, as may be determined by the Court. 5. NOTICES. Any notices sent to the parties relating to this Agreement shall be sent by first class mail, postage prepaid or personally delivered to the following addresses: Public Works Director CITY OF CUPERTINO City Hail 10300 Torre Avenue Cupertino, California 95014 Subdivider: MODENA INVESTMENT, LP SUNNYVALE HOLDING, LLC 14550 Oak Street Saratoga, Either party may amend its address by giving written notice to the other. IN WITNESS WHEREOF, the CITY OF Ct~-PERTINO , a municipal corporation, has authorized the execution of this agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No, ~. ,adopted by the Council of the CITY OF CUPERTINO on , 2009, and the SUBDIVIDER has caused this agreement to be executed. CITY OF CUPERTINO. Deferred Improvements Agreement: City of Cupertino-Cupertino Oaks f=inal Map jdrev#2-90617 Page 2 8-27 a municipal corporation, BY: City Manager ATTEST: City Clerk SUBDIVIDER MODENA INVESTMENT, LP By Prato Retail Group, Inc. a California Corporation, !ts G~~eral Partner Shawn Taheri, President SUNNYVALE HOLDING, LLC By CLDZ, INC. a California Corporation, Its Mar~~ging Member _ ,f Shawn Taheri, P~- ATTACH ACKNOWLEDGMENTS -, Deferred improvements Agreement: City of Cupertino-Cupertino yaks Final Map jdrev#2-90617 Page 3 8-28 CALIFORNIA ~LLL-PURPOSE CERTIFICATE OF At~I~:NOWLEDGMENT State of California County of ~~'"~ C~A'RA~ On 5;;~~t~~- t ~ ~?-°D~ before me, ~!~-`~ ~~ ~ Norc' tr'o ~-~ ~- (Here insert name and title of the officer} personally appeared Sff~ W~ ~~~ , who proved to me on the basis of satisfactory evidence to be the person{,srY'whose name{,~'~' islax~-subscribed to the within instrument and acknowledged to me that he~~hefthey executed the same in hislf~~ir authorized capacity{i~ and that by his/l~er~~re~.r signature~j on th a instrument the person{,s~ or the entity upon behalf of which the person~,~' 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. ~t~r uu SS my hand and official seal. ~~~~ t~2~eaa santa Ctaa Ctxr}ty (Notary seal} MyCornm. ExpEres~pee g, 20Q9 Signature of Notary Public ADDITIONAL OPTIONAL INFORMATION DESCRIl'TION OF THE ATTACHED DOCUMENT (Title or description of attached document) {Title or description of attached document continued) Number of Pages Document Date (Additional information} CAPACITY CLAIMED BY THE SIGNER ^ Individual (s) ^ Corporate O£f cer (Title) O Partner(s) ^ Attorney-in-Fact ^ Trustee(s) D Other INSTRUCTIONS FOR COMPLETING THIS FORM ,4iry acknowledgment completed in Cal{fornia must contain verbiage exactly as a~'pears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document The only exception is if a document is ro be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary io do something that is illegal for a notary in Cat~ornia {i.e. certrfying the authorized capacity of the signer), Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signers}personally appeared before the notary public for acknowledgment • Date of notarization must be the date that the signers} personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name{s} of document signer(s) who personally appear at the time of notarization. • lndicate the correct singular or plural forms by crossing off incorrect forms {i.e. helshe/t~-ey; is /are } or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If sea] impression smudges, re-seal if a sufficient area permits, otherwise complete a different aclrnowledgment form. • Signature of the notary public must match the signature on frle with the office of the county clerk •: Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •: Indicate title or type of attached document, number of pages and date. :• Indicate the capacity claimed by the signer. Lf the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFD, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v12.14.47 800-873-9865 u~~w.NotaryClasses.com i ~, -~'. ---• ,••;•• ~•~•: ®BKFfNpNeERS . M1 ~ v 7,V r.n.. 1~ ~ I % Ltf[ Ot et WWKP ~~~3g 1 ` , {{ y t ~ '~"' .; r tai }} ~` _:. - ~ _ ..~.- -. l I I .. ~ Rt! ~111i1 ., I':,+ F 1. ' . •.:X, ~, J •` ; v'~«~ ~ _++4,x: ~,_!.. -:i. .ter.-'''i = .~~ _ 1~ .:7 41 e~r•F~ w~..u. I~ • MMR 1 VC.: I~ ~. ~ - ... .~ r ]f ' Cpl r t. I ~>~ (, 1NN= . - . r.1r .. ~'T .( y.~ .. ...~ 1 ..><_'.. ~.~~ .`~~.. ~ a~•~:,rri ~ •x..~a~~.~`.. 't t'i'i~• 1 I . ,,,, ~ •,.. ,; , a a Izt :~, ~~~'::RaRC~=i 1. ~~•'~ .... ._. _.. 'L. `x . *, tl. .. 0~w>; 5 fi ~,~^,. -- , ~ r ••~~.-.. t ~I:.~~,~ t 44.6 1'14 ,.f }~f Lmao, ' ~ i ~ ~ I Vz ~ NN u:-vlr _7: x~;..i ~~ ~s III ~ ~ ~` ~ ~Q, d, ~, ''~,1 ~ . ~ ~ ~~' I' • I~o4;corloowNUU -=."1. PARCEL 2 ~ • `~ ~... ~~+ L .1~ ' W ~ ~~ ';~.'~ ~:1, ,~ ~.~ ' Y.~,e:~"-: r` I4 -~~.;::.l=x••. 3:60-k~_- .....f ~ _ ~ 1 I ~ -- .J 1t ~ , , ~ V ~ • I r rr ' I ~ ~ I,~,Wt. ~"~~Hx,-:'~~I ~.; ' . ""'t-+'^--. .r-~-r., 1_ ._.... ~ I ~~ ' -1 -' y a ~1, I ~ .. • ~ ~~.I .. h , i ., 1 ~ ~. ,_ a I: O r .• a y; 7 . . ~• ~~ ' ,' ~s., ~^Kj_~.. _. __ - i e l ~i . ..~ `~ ` I •.. . ~1` +' ~,r '•:a "'~'-uj,~ S y 'S,'' u'i .~ {A:. rni _'Y M I r'' I' ~ ..! ~ ' ~ .. r 1 ~1 „_Y,'~-~~. 4} ..2-YY- '~.ll ~r ry ~-I ~ w t'^-I•~ i I•I I , ff : .. ~ .~ • ^_ , ~ `. _ .. • . ,Vf. ' .. • .~. ... ~ ~! STEVENS CREAK BLVD ai~~#a ~~ w, TM~2 0 M r`` ~~ C`~ G~ c J {Space above line for Recorder's use only.) DECLARATION OF RES1"RICTIVE COVENANTS This Declaration of Restrictive Covenants ("Declaration"j is made as of J1~ ~, 2009 by MODENA INVESTMENT, LP, a California Limited Partnership, by its General Partner, Prato Retail Group, Inc., a California corporation and SUNNYVALE HOLDING, LLC, a California limited liability company by its Managing Meml~er, CLDZ, Inc., a California corporation Co- owners ("Owners"} of Parcel B and of Parcel A that is approved for condomization into ("Office Retail-Condo Unit 9 ") and ("Hotel-Condo Unit 2"), and the C[TY OF CUPERTINO, California, a municipal corporation ("City"}. Recitals WHEREAS Owners own all of the propert~~ shown and described as Parcel A and Parcel B on Exhibit A at#ached hereto; WHEREAS Qwners have obtained approval of a Condo Plan development on Parcel A from the City; WHEREAS owners contemplate the recordation of a Condo Plan consisting of Condo Unit 2 (Hotel) and Condo Unit 1 (OfFce and Retail) and Common Area ("Gommon Area„), as shown on Exhibit B. WHEREAS the Exhibits hereto are from Maps that are part of a Condo Plan not yet recorded that reflect Unit designations shown on such Maps such as Unit 2 (Hotel) and Unit 1 (Office & Retail) and such designations are being carried through and used in this document for consistency of reference; WHEREAS as a condition of approval of the Condo Plan, the City has required that the parties record this Restrictive Covenants Declar~~tion concurrently with the recordation of such Condo Plan at the same time as the Condo Plan is recorded; _ ~ _ NOW THEREFORE, the Owners coven~~nt and agree, for the benefit of the City, to burden #heir heirs, executors, successors and assigns as set forth herein. 1. Common Ownership, As of the date hereof, Owners hold the benefrcial ownership interest in Parcel A contemplated tv be formally rondomized into Condo Unit 1,("Office & Retail Unit 1 "} and Condo Unit 2 ("Hotel") and Common ,4rea ("Common Area") respectively, as shown on Exhibit B hereto The direct or indirect beneficial ownership in the fee interest in Office & Retail-Condo Unit 1 and in the Hotel-Condo Unit 2 shall, at all times herein provided, be and PaulOakshotellDeedrestrict-5 1 8-31 remain the same {"ownership Restric#ion"), which shall not, however, preclude transfers of lesser real property interests to third parties, including leasehold interests and easements. Such Owners of Office & Retail-Condo Unit 1 and Hotel-Condo Unit 2 shall not transfer nor cause, allow or suffer the transfer {voluntarily, involuntarily or by operation of law} of any fee interest in such Condo Units in violation of the herein Ownership Restriction, and, at City's the election, any such attempted transfer shall be void. . 2. Lot Line Adjustment. Concurrently with the recordation of the Condo Plan, the Owners covenant to apply {"Application"} to the City to terminate the Condo Plan and to record a lot line adjustment ("LEAH) between Office & Retail-Condo Unit 1 and a portion of Common Area {the service drive primarily intended to benefit, Hotel-Condo Unit 2} and Parcel B (Shopping Center), all as shown on Exhibit B, by which lot line adjustment process Office & Retail-Condo Unit 1 and portion of Common Area will be added to Parcel B(Shopping Center). Hotel- Condo Unit 2 and the remainder of the Common Area will be left intact as an independent and separate subdivided parcel to continue to be referred to as Parcel A, as described on the Final Parcel Map, then freely trans#erable and otherwise free of any other restrictions imposed by this document. The City covenants that it shaft not formally approve such Application or record any such Lot Line Adjustment resulting from such Application therefrom unless, within 4 years of the. date of recordation of this Declaration the Owner of Office & Retail-Condo Unit 1 shall have failed to obtain a building permit from the City for some or all of said Condo Unit 1 and Owner shall have commenced substantial grading thereon. 2.1 Although the Ownership Restriction does not technically require concurrent ownership of Condo Unit 1 and of Parcel B, in order to accomplish the foregoing LLA in compliance with applicable law, including the Subdivision Map Act, such ownership will have to be the same at or about the time of processing of the LEA. Accordingly, City shall give Owners not less than 30 days prior written notice of the City's intent to record the LLA so as to enable the Owners of Office & Retail-Condo Unit 1 and of Parcel B to cause such ownership to be concurrently owned prior to the recordation of the LEA, provided, however, that the Owners are authorized to seek release of Parcel A from the Deed of Trust on Parcels A and B and to transfer Parcel A, subject to this Declaration, to another entity controlled by the same parties that control the entities that own Parcel B. It is clearly understood and agreed that beyond the stated need to have common ownership of the Office & Retail-Condo Unit 1 and Parcel B for the purpose of the potential LLA that might occur, this Covenant, shall have no other effect or restriction on Parcel B. 3. Tenm. This Declaration shall terminate upon the earlier of: (a} recordation of the LEA; or (b} five (5} years after the recordation hereof; or (c) issuance of a Section 2 building permit by the date specified therein. 4. Covenants Running with the Land. This Declaration: (a}shall apply to and bind each and all of the Owners and the City and each and all of their respective heirs, successors and assigns; and (b) shall obligate, inure #o, pass and run with each and every portion of Parcels A and B but, as to Parcel B, only to the extent provided in 2.1, and shall remain in force and effect and terminated as hereinafter provided. However, nothing in this Declaration shall preclude any Owner from granting interests in real property less than a fee interest, including without limitation leasehold interests and easements, and no holder of any such lesser interest (or successor or assignee thereof} shall be subject to this Declaration: 5. Aflortgage Protection Provisions. The breach of any of the covenants or restrictions PaulOakshoteflDeedrestrict-5 2 8-32 contained in this Declaration shall not defeat, r~~nder invalid or affect the priority of the lien of any mortgage or deed of trust made in good faith, but all of the foregoing provisions, restrictions and covenants shall be binding and effective ~~gainst any Owner of any portion of the fee interest in Parcel B but only to the extent provided in 2.1, the Office & Retail -Condo Unit 1 and the Hotel-Condo Unit 2, or any part thereof, whose title is acquired by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's safe; provided any such Owner whose title is acquired by foreclosure or trustee's sale or by deed in lieu of foreclosure or trustee's sale shall take title free of any liens created or provided for hereunder, though otherwise subject to the provisions hereof. 6. Remedies. Any party hereto may bring an action or proceedings at law or in equity, including, but not limited to, an action seeking irniunctive relief, against any person violating, or attempting to violate, any of this Declaration, either to prevent or enjoin any such violation andlor to recover damages from or on accoun# ~f such violation. All such remedies shall be cumulative. 7. Attorneys' Fees. !n the event that suit is Drought for the enforcement of this Declaration or as the result of any alleged breach, the prevailing party or parties shall be entitled to recover court costs, including reasonable attorneys' fe+~s, by the losing party or parties and any judgment or decree rendered shall include an aw2~rd of attorneys' fees. 8. California Law. This Declaration and thf: application or interpretation thereof shall be governed exclusively by its terms and by the laws of the State of California. 9. Amendments. This Declaration may only be amended or terminated by all the Owners and the City, duly executed and acknowledged bpi each and recorded in the office of the Santa Clara County Recorder. '! 0. Notice. Notices that may be required or necessary under this Declaration, if any, shall be provided to the following addresses: City: 10300 Torre Avenue, Cupertino, CA 95014-3255 Condo Unit 1 Owners: c/o Homeland Management, Inc. at 14550 Oak Street, Saratoga, CA. 95070 Condo Unit 2 Owners: Same as above Parcel B Owners: Same as above Any party may change its address for notice purposes by delivery of written notice of such new address to all parties. - ~ - JN WITNESS WHEREOF, the Owners have executed this Declaration as of the above date. Parcel B Owners: MODENA INVESTMENT, LP By Prato Retail Group, Inc. . its General Partner PaulQakshoteilDeedrestrict-5 3 8-33 By: Shawn Taheri, President Office Retail-Condo Unit 1 Owners: Hotel -Condo Unit 2 Owners: City: [add acknowledgments] PaulQakshoteilDeedrestrict-5 4 SUNNYVALE HOLDING, LLC By CLDZ .Inc. Its Managing Me er By Shawn ~`aheri, Presid MODENA INVESTMENT, LP By Prato Retail Group, Inc. Its General Partner By: Shaw aheri, Presi ent SUNNYVALE HOLDING, LLC By CLDZ .Inc. Its Managing M tuber By a~-r~ Shawn Taheri, Pr si MODENA INVESTMENT, LP By Prato Retail Group, Inc. Its General Partner By: Shawn Taheri, Presi ent SUNNYVALE HOLDING, LLC By CLDZ .Inc. Its Managing Member By Shawn Taheri, Pre ide City of Cupertino, a California municipal corporation By: Title: 8-34 CALIFOF:NIA ALL-P~CJRPOSE CERTIFICATE OF A1~KNOWLEDGMENT State of California County of ~~Nf~ CLBiRAr On ~~v~t~ ! c@",~1 before me, ~~~___ C.fl~t i~d7~f r'~/3c.~ ~ , (Here insert name and title of the officer) personally appeared ,~}~3-wN T,~ ~~ , who proved to me on the basis of satisfactory evidence to be the person(~whose name(,s'J'islarer subscribed to the within instrument and acknowledged to me that he/executed the same in hisA~e~rfthe~rauthorized capacity(i,~j, and that by his/i~~~teir signature~f on tl~e instrument the person{ or the entity upon behalf of which the person~'acted, executed the instrument. I certify under PENALTY OF PERJURY under the laves of the State of California that the foregoing paragraph is true and correct. -- - MEl+p1f lJ1t caevr~eronr 1e-~7aaa WITNESS my hand and official seal. , lac . ~~, ~ aar>to CtoFO Canty _~. ~ (Notary Seal) Signature of Notary Public ADDITIONAL OPTIC-NAL INFORMATION DESCRIP'ITON OF THE ATTACHED DOCUMENT ~L~~7 ~~t a~ t c~~ {Title or description of attached document) _ ~~~N~~~ {Title or description of attached document continued} Number of Pages ~ Document Date {Additional information) CAPACITY CLAIMED BY THE SIGNER ^ Individuat (s) ^ Corporate Off cer {Title) ^ Partner(s) ^ Attorney-in-Fact ^ Trustee(s} ^ Other INSTRUCTIONS FOR COMPLETING THIS FORM Arty acknowledgment completed in California muse contain verbiage exactly as gvpears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California In such instances, arty alternative aclarawledgment verbiage as may be printed an such a document so Long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e, certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required + State and County information must be the State and County where the document signers} personally appeared before the notary public for acknowledgmerrt. • Date of notarization must be the date that the signer{s) personally appeared which must also be the same date the acknowledgment is completed + The notary public must print his or her name as it appears within his ar her commission followed by a ce~a and then your title (notary public). • Print the names} of document signers) who personally appear at the tune of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/ is /a~a) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a suffiicient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk s~ Additional information is not required but could help to ensure this aclcrmwiedgmecrt is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. •~ Indicate the capacity claimed by the signer. If the claimed capacity is a corporate nicer, indicate the title {ie. C.EO, C~'O, Secretary}. • Securely attach this document to tbe signed document 2008 Version CAPA X12.10.07 800-873-9865 www.NotaryCiasses.com Subordination The undersigned: (i} is the beneficiary under that certain deed of trust and financing statement recorded as instrument no. , in the Official Records of Santa Clara County, California; and (ii} hereby subordinates such Tien #o the above Declaration. By: Ti#le: ]add acknowledgments] PaulOakshotellDeedrestrict-5 5 8-36 EXH I B-IT A {Legal Deg-cription) Parcel A Parcel B PaulOa kshotellDeedrestrict-5 8-37 i l Z ' ~ \~ ~ ~ ~~~ N ~ ~. i~ c ~~ y- .t ,~, ~,~ ~~ ~ a~ ~.L LlN~ TAB I.,E LINE BEARING LENGTH Li N73'34'O6"E 17.84' LZ N63'53'37"E 42.00' 1..3 N00'48'05"E 12.00' L4 N45`46'13"E 24.05' L5 N89'11'55"4~f 30.00' L6 N00'44'20"E fi0.00' b~, ~r PARCEL ~ ~- ~~ ~~~~' Q Q ~, kea'~B~o4 i .~, w ~~ ~~/ ~'~,~4~On ~ ~d~r7$~ PARCEL B 0 ~N N ~r ~p ~ ~~. i38.8.~' W ~ _ - N89't5'4Q'W 8~7.4d r ~ ~ b '~3' Nd4U3'28` ~ NB~'I~'~40`Ii11884.3?J' - ~ tD SfiEVElVS CREEK BOULEVARD BC3UNDARY S l.~CATtt~N hI~AP ~ " = X00' BASfs o~ BEARINGS THE SEARING IV89'11'55"W OF THE GENTER LINE OF MARY AVENUE, BETWEEN FOUND MONUMENTS, AS SAID BEARING IS SHOWN ON THAT CERTAIN PARCEL MAP, FILED ____ IN BOOK ,~ OF MAPS AT PAGES ~, AND _~, RECORDS OF SANTA CLARA COUNTY, WAS TAKEN AS THE BASIS OF BEARINGS FOR THIS PLAN. BEI~t~H MARK - ~ " S.C.V. W.D. VERTICAL CONTROL REFERENCE MARK "BM 180". BRASS DISC, STAMPED" BM 180 RESET 2001" ON TOP OF CURB AT SOUTHERLY SIDE OF STEVEN_ S CREEK BOULEVARD, 20't WESTERLY OF RAILROAD TRACKS, BETWEEN IMPERIAL AVENUE AND BUBB ROAD, CITY OF CUPERTINO, CALIFORNIA. ELEVA~lON = 32fi.96 FEET, SANTA CLARA VALLEY WATER DISTRICT BENCHMARK, BASED ON NORTH AMERICAN VERTICAL DATUM of 19ss {NAvD ss~. BKF No. 20076019-i0 K:\Sur07\07fi019\Dwg\Concla Pfans\Sheet 3.dwg CUPERTII~ OAKS SHEET 3 OF 4 (17.83'} 0 t00 200 4D0 MARY AVENUE N88't4'55" N89'11'5S"W EXH181T B Depiction of office & Retail Cond~a Unit 1 and Hotel Condo Unit 2 PaulOakshotellDeed restrict-5 8-39 ~.~.,~.~ ~ `~~ CaMMON AREA a~~~ 'd~~+ ~ ~„4 ~• NU! ~. N~ ~o. rn urvE rAeLE UNE BEARING LENGTH L1 N73'34'D6' 17.84' L2 N83~3'37 E R L3 N44`3 '37"E 12.49` L4 N73'34'18"E 29.38' L5 NI '25'44"W 18.94' Ls ~r5o'~5~w 4s.es CURV CURVE RADIUS E TABLE DELTA LENGTH C1 25.04' 72'Si'17" 31.79' C2 20.00` 1 QTO '50" 37.38` C3 79.00' 25'43'40" 35.47' C4 32.00` 31'24'51" 1 .54' C5 3 .50' 5fi '15" 33.72 ` C6 23.00' 79'4'1'2T' 31.89' -- -- - -- ~ 4.5.32' 25.94' ~~; ~~,~ ~~ po. ass, ~ ~ 4204"E ~ w. ~ ~ o~ 2~1r•3s4 "C' ~, ~~ G5 C~Z57`z4' t~Ai1T 2 ~s ~ CRS {H4TFf..) p- ~ F F. EL = 303.00` ~ ~ ~ ~ .t ~ UPPER EL. = 803.00' v ;v `' ~` ~ ~ ~ LOWER EL. ~ 3.00` ~ ~ ~~ ~ °~ `'~ col~MaN W N w ~ o~, ~ _ ~ AREA ~ .L ~ X36,-~6' ~, 0~ ~ ~ ~ `~~16ME 14~- ~ ~ ~ ~ c~r,. 1y73 ~~ . UfVfT '! ~ ~ taFFfCE ~ N8g•3s'o4"w ts2.7o' '~ Nom. S RETA~..~ +-- ~ F.F. IrL. 301.50' ;,.. UPPER EL 801.50' N ~ LOWER EL. = 1.50' ~ ip W PARCEL H sD '~' .- ;~' D g .._ ,~ ~r 80.46' ~~ Nas`11'ot"w o ~ 4o a ~~~~°•o r 0 i6a r A~, 0• x:85 ~QO~'8. IV84~3'28"W {sc~ '~~ ~~'~ STEVEI~S CRf=ESC B~ULEVARf~ UNIT L~~AT~~1~ PLAN