E-648 Declaration of restrictive Covenants, 21255 Stevens Creek Blvd. RECORDING REQUESTED BY: DOCUMENT: 20803596 Pages 14
City of Cupertino 11111111111111II I I I I I II TaXees 54 a0
WHEN RECORDED,MAIL TO: AMT PA I D 54 00
City Clerk's Office REGINA ALCOMENDRAS RDE # 008
City of Cupertino SANTA CLARA COUNTY RECORDER 8/04/2010
10300 Torre Avenue Recorded at the request of 11 14 AM
Cupertino, CA 95014-3255 City
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
DECLARATION OF RESTRICTIVE COVENANTS
21255 STEVENS CREEK BOULEVARD
APN # 326-27-035
MODENA INVESTMENT, LP, AND SUNNYVALE HOLDING LLC
-Yriginal
0 For Fast Endorsement
WHEN RECORDED RETURN TO:
The City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
(Space above line for Recorder's use only.)
DECLARATION OF RESTRICTIVE COVENANTS
2-o
This Declaration of Restrictive Covenants ("Declaration") is made as of f_ F709
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 Member, 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 1") and ("Hotel-Condo Unit 2"), and the CITY OF CUPERTINO,
California, a municipal corporation ("City").
Recitals
WHEREAS Owners own all of the property shown and described as Parcel A and Parcel
B on Exhibit A attached hereto;
WHEREAS Owners 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 (Office and Retail) and Common Area ("Common 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 Declaration concurrently with the recordation of such
Condo Plan at the same time as the Condo Plan is recorded;
NOW THEREFORE, the Owners covenant and agree, for the benefit of the City, to
burden their heirs, executors, successors and assigns as set forth herein.
1. Common Ownership. As of the date hereof, Owners hold the beneficial ownership
interest in Parcel A contemplated to be formally condomized into Condo Unit 1,("Office & Retail
Unit 1") and Condo Unit 2 ("Hotel") and Common Area ("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
OakshotelTeedrestrict-6 1
remain the same ("Ownership Restriction"), 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 ("LLA") 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 transferable and otherwise free of any other
restrictions imposed by this document. The City covenants that it shall 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 construction which is
defined as being no less than grading and pouring of the foundation. Both parties understand
that the Use Permit expires on September 2, 2012 (unless extended). The City reserves the
right to approve the application and record the Lot Line Adjustment on or after the later of
September 3, 2012 or any City-granted extension if the Owner of Office & Retail-Condo Unit 1
fails to obtain a building permit from the City and to commence substantial construction,
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 LLA. 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 LLA, 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. Term. This Declaration shall terminate upon the earlier of: (a) recordation of the LLA; or
(b) 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 to, 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
OakshoteRDeedrestrict-6 2
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. Mortgage Protection Provisions. The breach of any of the covenants or restrictions
contained in this Declaration shall not defeat, render 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 against 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 sale; 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 injunctive relief, against any person violating, or
attempting to violate, any of this Declaration, either to prevent or enjoin any such violation
and/or to recover damages from or on account of such violation. All such remedies shall be
cumulative.
7. Attorneys' Fees. In the event that suit is brought 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' fees, by the losing party or parties and any
judgment or decree rendered shall include an award of attorneys' fees.
8. California Law. This Declaration and the 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 by each and recorded in the office of the Santa
Clara County Recorder.
10. 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.
IN WITNESS WHEREOF, the Owners have executed this Declaration as of the above date.
OakshotelTeedrestrict-6 3
Parcel B Owners: MODENA INVESTMENT, LP
By Prato Retail Group, Inc.
Its General artner_
Shawn Taheri, Presiden -° -
SUNNYVALE HOLDING, LLC
By CLDZ . Inc. Its Managing mber
By d/14—
Shawn Taheri, President
Office Retail-Condo Unit 1 Owners:
MODENA INVESTMENT, LP
By Prato Retail Group, Inc.
Its General Partner_
By: � LL /' y eC ✓
Shawn Taheri, Presidenjs°. ---`"
SUNNYVALE HOLDING, LLC
By CLDZ . nc. Its Managing Me ber
By fry
Shawn Taheri, President --
Hotel –Condo Unit 2 Owners:
MODENA INVESTMENT, LP
By Prato Retail Group, Inc.
Its General Partner
Shawn Taheri, President
SUNNYVALE HOLDING, LLC
By CLDZ . Inc. Its Managing Member
By (s r a
Shawn Taheri, Presi nt– ""
City: City of Cupertino, a California municipal
co r�ratiJon�
Byl\\'�`
Title:
OakshotelTeedrestrict-6 4
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of r:?Sa yArA c 1 c --A
On &C6\ 0-1 i0D10 beforeme,
(Here insert time and title of the officei)
personally appeared "'V" VVh I
who proved to me on the basis of satisfactory evidence to be the person(&)whose name(') isiia44 subscribed to
the within instrument and acknowledged to me that hco�&hal4hQ�L executed the same in his/.l oA4heir authorized
capacity(tes), and that by his/IierAh,&i*signature(s) on the instrument the person(,), 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.
GARDENIA GONBAIEI `.
WITNESS my hand and official seal. COMM. 81849161
w NOTARY PUBLIC-CALIFORNIA ,
SANTA CLC�OU4
(Notary`1 s
MY C Ex fires Ma t4.T8�13
Signature of Notary Public `-°'
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be
Y sky completed and attached to that document. the only exception is if a
D�e'C1u''A+1T " 6 r � .5"Irt c-b v C? document is to be recorded outside of California.In such instances, any alternative
(rifle or deseripti n of attached document) acknowledgment verbiage as may be printed on such a document so long as the
11 verbiage does not require the notary to do something that is dlegalfor a notary in
57
C 's,-e h 1 California (i.e. certifying the authorized capacity of the signer). Please cheek the
(Title or description of attached document continued) document earefullyforproper notarial wording and attach thisform(frequired.
Number o'FPa Pages Document Date" �r7 1C7 - State and County information must be the State and County where the document
g signer(s)personally appeared before the notary public for acknowledgment.
- Date of notarization must be the date that the signer(s)personally appeared which
must also be the same date the acknowledgment is completed.
(Additional information) - 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 names) of document signer(s) who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER - Indicate the correct singular or plural forms by crossing off incorrect forms(i.e.
El Indi Individual(6) he/she/tkey—is/an,)or circling the correct forms.Failure to correctly indicate this
information may lead to rejection ofdocument recording.
❑ Corporate Officer - 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
(Title) sufficient area permits,otherwise complete a different acknowledgment E ma.
❑ Partner(5) e Signature of the notary public roust match the signature on file with the office of
the county clerk.
❑ Attorney-in-Fact Additional information is not required but could help to ensure this
❑ Trustee(s) acknowledgment is not misused or attached to a different document.
❑ Other Indicate title or type of attached document,number of pages and date.
Indicate the capacity claimed by the signer.If the claimed capacity is a
corporate officer,indicate the title(i.e.CEO,CPO,Secretary).
- Securely attach this document to the signed document
2008 Version CAPA v12.10.07800-873-9865 www.NotaryClasscacom
[add Exhibit A and acknowledgments ]
OakshoteIRDeedrestrict-6 5
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;
hereby and (ii) heby subordinates such lien to the above Declaration.
By:
Title:
add acknowledgments]
[ g ]
OakshotelTeedrestrict-6 6
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
On before me,
(Here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public (Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California. In such instances, any alternative
(Title or description of attached document) acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that is illegal far a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
(Title or description of attached document continued) document carefully for proper notarial wording and attach this form f required.
- State and County information must be the State and County where the document
Number of Pages Document Date signer(s)personally appeared before the notary public for acknowledgment.
- Date of notarization must be the date that the signer(s)personally appeared which
most also be the same date the acknowledgment is completed.
(Additional information) - 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 uame(s) of docurent signer(s) who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER - Indicate the correct singular or plural forms by crossing off incorrect forms(i.e.
❑ Individual(s) he/she/they,—is/are)or circling the correct forms.Failure to correctly indicate this
information may lead to rejection of document recording.
❑ Corporate Officer - 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
(Title) sufficient area permits,otherwise complete a different acknowledgment form.
❑ Partner(s) - Signature of the notary public must match the signature on file with the office of
the county clerk.
❑ Attorney-in-Fact Additional information is not required but could help to ensure this
❑ Trustee(s) acknowledgment is not misused or attached to a different document.
❑ Other Indicate title or type ofattaehed document,number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer,indicate the title(i.e.CFA,CFO,Secretary).
- Securely attach this document to the signed document
2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com
EXHIBIT A
(Legal Description)
Parcel A
Parcel B
Oakshotel\Deedrestrict-6 1
UNE TABLE
LINE BEARING ILENM
\ Lt N73'34:06"E 17.84' (17.83')
L2 N63'533'7'E 42.00'
L3 N00'48'05"E 2.00'
L4 N45'46'1 3"E 24.05'
5 L5 N8991'55"W 30.00'
L6 N00"44'20"E 60.00' 0 100 200 400
a%
2 M'i\°%, O
(SCALE IN FEET) °N
G N �•��', �ga7" MARL( AVENUE
BASIS 89F 88 BEARINGS� -N N89 33
j 189. 8
C7 83,iJ 8
R `8 .
83.73' '
S5" ry '1SS.
148911'PARCEL AI 7� Q 0 O
,
¢ =1 a. z �\
amp 'aria 16274' �,,�
a� N88'36'04"W
�.c \ PARCEL B 42'
1pPop 60 4 85 z 104.78' Z �� $
O 9g. 1 9.63' N89'15'40'W 617.40'
03' N8 4'03'28'W '3 N8915'40"W 884.33' w
STEVENS CREEK BOULEVARD
BOUNDARY & LOCATION MAP
1°° = 200'
BASIS OF BEARINGS
THE BEARING N89°11'55"W OF THE CENTER 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.
BENCH 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 STEVENS CREEK
BOULEVARD, 20't WESTERLY OF RAILROAD TRACKS, BETWEEN IMPERIAL AVENUE AND
BUBB ROAD, CITY OF CUPERTINO, CALIFORNIA. ELEVATION = 326.96 FEET, SANTA
CLARA VALLEY WATER DISTRICT BENCHMARK, BASED ON NORTH AMERICAN VERTICAL
DATUM OF 1988 (NAVO 88).
BKF No. 20076019-10
K:\Sur07\076019\Owg\Condo Plans\Sheet 3.dwg CUPERTINO OAKS SHEET 3 OF 4
EXHIBIT B
Depiction of Office & Retail Condo Unit 1 and Hotel Condo Unit 2
Oakshotel\Deedrestrict-6 2
LINE TABIF CURVE TABLE
LINE BEARING LENGTH CURVERADILISI DELTA LENGTH
I
Ll N73'34' 6"E 17.64' Cl 25.00' '51'17" 31.79'
L2 N63-1111,53'37"E R C 20.00' 107'05'50" 37.38'
da L3 N 03 '37 E 12.49' C3 79.00' 25°43'40" .47'
COMMON ���+ L4 N73'34'18"E 29.3 ' C4 32.00' 31'24'51° 17. 4'
ar. L5 N '25'44"W 18.94' C5 34.50' S6 0015" 33.72"
AREA \-,& 8 N4T50'35"W 46.85' G6 23.00' 79'41'27" 31.99'
G7 350,00' 07'25 08" 45.3 '
°y CB 20.00' 74 9'161---2-5794H
a. !°2idd Y
y _42'04"f
(R)
!� to' w
a <s Gy 5 C-257.24'
4� < �• UNIT 2 cs m
Z� Cm
(HOTEL) o
F.F. EL. 303.00' p, 9 'q
G UPPER EL. = 603.00' cv PI
LOWER EL, 3.00'
(p m
w
M� m uj COMMON co
°a No AREA
136"� 1'�1 04 O h°a
N73 �1 MN z
UNIT 'I ~ 1 N89'36'04"W 162.70'
S (OFFICE
S RETAIL)
F.F. EL. = 301.50'
UPPER EL. = 601.50' N
LOWER EL. = 1.50'
a 1n w PARCEL B
cp eq °i
(V
119 � �
z
2
C� 80.46'
�,akd N89'17'01"W
®40 80 160 day�R9 dd. 3 !
00 N84'0 3',8' 64•o3'2e"w
(SCALE IN FEET) STEVENS CREEK BOULEVARD
UNIT LOCATION PLAN
6KF No. 20076019-10 1n z 80'
K:\SUrO7\076019\Dwg\Condo Plans\Sheet 4.dwg CUPERTINO OAKS SHEET 4 OF 4
VERIFICATION
I have reviewed this Declaration of Restrictive Covenants and to the best of my knowledge, the
information contained herein is true and complete.
I verify under penalty of perjury under the laws of the State of California, that the foregoing is
true and correct.
Exec ted on th y of June, at Cupertino, California.
Jie ejz'd`�.,�
Ci lc s)ffice
City o upertino