Ordinance No. 1702
ORDINANCE NO. 1702
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING APPLICATION l-DA-95, DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CUPERTINO AND HEWLETT-PACKARD COMPANY
THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY
ORDAIN that Application I-DA-95, Development Agreement between the City of
Cupertino and Hewlett-Packard Company, attached hereto and make part hereof by
reference, be approved per the following findings:
1.
Said development agreement is hereby found to be consistent with the City of
Cupertino General Plan,
2,
In accordance with Chapter 20,24,030 of the Cupertino Municipal Code, said
Development Agreement is hereby found to be compatible with the use authorized
in and the regulations prescribed for the Planned Development zoning district in
which the real property is located,
3,
The Development Agreement is in conformity with, and will promote the public
convenience, general welfare and good land use practice,
4,
The Development Agreement will not be detrimental to the health, safety and
general welfare,
5,
The Development Agreement will not adversely affect the orderly development of
the property or the preservation of property,
6,
The Development Agreement will promote and encourage the development of the
proposed project by providing a greater degree of requisite certainty of the
entitlements secured thereunder.
7,
The project was subject to an Initial Study as required under the California
Environmental Quality Act and was found to have no significant impacts upon the
environment.
8,
After careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, the application for Development Agreement is hereby
approved; and
Ordinance No, 1702
Page 2
9,
The subconclusions upon which the findings specified in this resolution are
contained in the Public Hearing record concerning Application l-DA-95 as set
forth in the minutes of the Planning Commission meetings of August 7 and
September 11, 1995, and are incorporated by reference as though fully set forth
herein,
THE CITY COUNCIL FURTHER ORDAINS THAT per Chapter 20,36 of the
Cupertino Municipal Coed, the Agreement shall be reviewed annually by the Director of
Community Development.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
this 2nd day of October, 1995, and ENACTED at a regular meeting of the City Council
of the City of Cupertino this 6th day of November, 1995, by the following vote:
~
Members of the Ci~ Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Koppel, Sorensen, Dean
Bautista, Burnett
None
None
ATTEST:
APPROVED:
~'.
Ci~>
M,i:jt!i~
RECORDING REQUFSfED BY AND
WHEN RECORDED RETURN TO:
City of Cupertino
City Hall
10300 Torre Avenue
Cupertino, California 95014
(SPACE ABOVE LINE FOR RECORDER'S USE ONLY)
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF CUPERTINO,
a municipal corporation
AND
HEWLETI-PACKARD COMPANY,
a California corporation
PAI\311256,Q4
November 6.1995
1.
2,
3,
4,
PAl\311256.04
November 6,1995
DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
Development Of The Property "",."""""""""".,,4
1,1 DevelopmentPlan """"""""",.""",,4
1.2 Present Right to Develop ",..""""""..".,5
1,3 Conditional Use Perrnit Approvals. , , , , , , . , , , , . , " 5
1.4 Cooperation in Obtaining Allocation of Utilities. , , . " 6
1.5 Advance Payrnent of Construction Taxes and Fees. , ,. 6
Effect of Agreement """..""."."""..",',.,",.,' 7
2,1 Supersedure by Subsequent State or
Federal Laws or Regulations, , , , , , , , , , , . , , , , 7
2,2 Future Exercise of Discretion by City .,.""".",. 8
Term, , , , , , , , , , , , , , , . , , , , , , , , , , , , , , , . , , , , . , . , , , , . , , .. 8
Developrnent Fees, Assessments, Exactions, and Dedications, , , , , .' 9
5,
Standard of Review of Ministerial Permits, , , . , , , , , , , , , , , . . , ,. 9
6,
Cooperation in Implementation """""".",."."..,"
7,
Periodic review, ."",.""""""".,."""..,"',.,
7,1 AnnuaIReview.,...""."""""",.",.,
7.2 Owner's Submittal """"""."".."".".
7,3 City'sFindings.,."",.""",."",..",."
8,
Default and Remedies """"""""",."",.,,',.,"
8,1 Default .",.",...""."""..""..,""
8.2 Remedies""""""""".",,'."""'.'
9,
Agreement to Arnend or Terminate "",."".""""",.,
10,
Mortgagee Protection; Certain Rights of Cure, , , , . , , , , , . , , , . , ,
10,1 Mortgagee Protection """""",.."".",.,
10.2 MortgageeNotObligated""""""".",.",
10,3 Notice of Default to Mortgagee, , , , , , , , , , . , , , , , ,
11.
Assignability """,..,..".".",.,.."..,"',.".,"
11.1 RighttoAssign """""",.""""",""
11,2 No Release Until Final Inspection. , , , , . . , , , , . , , . ,
11.3 Covenants Run With The Land, , , , . . , , , , . , , , , , ,
PAGE
10
11
11
11
11
12
12
13
13
13
13
14
14
15
15
15
16
12,
PA1\311256.04
November 6, 1995
General"""""""""""""""""""""",
12,1 Construction of Agreement, , , , , , ' , , , , , , , , , , , . , ,
12,2 NoWaiver""""""",..""""""""
12,3 Agreement is Entire Agreement, . , , , , , , , , . . , , , , ,
12,4 EstoppelCertificate """"""".."""""
12,5 Counterparts ",..",.."""."""",.""
12,6 Severability ,..""""",..""""""""
12,7 FurtherDocuments .",...""""""".""
12,8 TirneofEssence"""""",.""""""",
12,9 Attorneys'Fees """"",.."""""""..
12,10 Indemnity """.."..."""."",',.,""
13,
Notice ""."""""",.",.""."".,""',.,""
1.
Development Of The Property ,..."..,."".""""."",4
1.1 DeveloprnentPlan """",.."".,..""".,.4
1,2 Present Right to Develop ".."",."",.,."",5
1.3 Design Use Permit Approvals, . . . , , , , . , , , , , , , , " 5
1.4 Cooperation in Obtaining Allocation
of Utilities ",.""""""""".."""".,6
2,
Effect of Agreement .,...""""""""",..",""',.. 6
2,1 Supersedure by Subsequent State
or Federal Laws or Regulations. . . , , , . , . , , , , , , . ., 6
2,2 Future Exercise of Discretion by City """..""" 7
3,
Term, , , . , , , . , , , . , , , , , . . . , , . , , . . . , , , , . . , , , , , , . , , , , , " 7
4,
Development Fees, Assessments, Exactions and Dedications. , , , , " 8
5,
Standard of Review of Permits "",."""..."".""",.. 9
6,
Cooperation in Implementation "".."",.."".""""..9
7,
Periodic review, """"""""""",.,"""",.,'"
7,1 AnnualReview,."",..""".""..."".,
7,2 Owner'sSubrnittal,.""."..""""""""
7,3 City'sFindings."""""",.."".""",.,
8,
DefaultandRernedies """""""",."".""".,'"
8,1 Default ,."",.",.,.."""."".,',."..
8,2 Rernedies"""".""",.""."",."""
9,
AgreementtoAmendorTerrninate .""."".""..""."
ii
16
16
16
17
17
18
18
18
18
18
19
19
10
10
10
11
12
12
12
13
10,
11.
12,
PA1\31l256.04
November 6. 1995
Mortgagee Protection; Certain Rights of Cure, , , , , , , , , , , , , ' , , ,
10,1 Mortgagee Protection ,.""""",.""""".
10,2 MortgageeNotObligated""""""""",."
10,3 Notice of Default to Mortgagee. . , , , , , , . , , , , , . , ,
Assignability """."""""...",,"""""""'"
11.1 RighttoAssign ".."""""""",.""",
11.2 No Release Until Final Inspection, , , , . . , , , , , , , , , ,
11,3 Covenants Run With The Land, , , , , , , , , , . , . , , . ,
General"..".,."".""""",."""""",...,.,
12,1 Construction of Agreement, , , , . . , , , , , , . , , , , , , , ,
12,2 NoWaiver,."".""",."""""",.".,
12,3 Agreement is Entire Agreement, , , , , , . , , , , , , , . , ,
12.4 EstoppelCertificate .""""""""".,.".,
12,5 Counterparts """",.""..".".."",.,'
12,6 Severability ,...,.."",.""""""."".,
12,7 FurtherDocuments "..""..."",.""".,'
12.8 TirneofEssence..."""""""""",..",
12.9 Attorneys'Fees """..."..".",.,."".,'
12,10 Indemnity""..,."",."""""""."..
13,
Notice """"",.",.,.."",,',.,""""',..,',..
EXHIBITS
ExHIBIT "A" LEGAL PROPERTY DESCRIPTION
EXHIBIT "B" ILLUSTRATNE "MASTER PLAN" FOR EVENTUAL
REHABILITATION AND BUILDING OF THE PROPERTY
EXHIBIT "C" GENERAL PLAN DEFINITION OF
DEVELOPMENT ALLOCATION
iii
13
13
13
14
14
14
15
15
15
15
16
16
16
17
17
17
18
18
18
18
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered as of this 6th
day of November, 1995 ("Effective Date") by and between THE CITY OF
CUPERTINO ("City"), a California municipal corporation, and HEWLETT-PACKARD
COMPANY ("Owner"), a California corporation,
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A.
Section 65864 ~ ~, of the California Government Code authorizes City
to establish procedures to enter binding development agreements with persons
having legal or equitable interests in real property located within the City for
development of the property,
B,
Chapter 19,116 of the Cupertino Municipal Code, adopted by the City
Council ("City Council") of the City in 1984, establishes the authority and procedure
for review and approval of proposed development agreernents,
c.
Owner is the legal owner of the property ("Property") governed by this
Agreernent, cornprising an approximately ninety-five (95) acre site located at Wolfe
Road and Homestead Road in the City of Cupertino, further described in Exhibit "A",
attached hereto and incorporated by this reference, Owner intends eventually to
build out a master-planned corporate facility on the Property within the policies and
limits governing usable space allocations expressed in the 1993 Cupertino General
PAI\311256,O4
November 6,1995
1
Plan ("General Plan"), An illustrative example master plan ("Example Master Plan")
for possible eventual rehabilitation and new buildings on the Property is attached
hereto as "Exhibit B" and is incorporated by this reference, The "Example Master
Plan" is intended to demonstrate only one possible option for developrnent and is not
intended to bind Owner or City to present or approve a particular specific master
plan,
D,
Owner has requested tills Agreement in order to vest the land use
policies established in the General Plan current as of the Effective Date hereof. This
Agreement would authorize Owner to implement, subject to other City land use
decisions consistent with the General Plan, a phased, multi-year program ("Project"),
of renovating and expanding its current combination of Research and Development,
Office and related uses of the Property, Notwithstanding the foregoing, the
"additional rnitigated developrnent" of 2,000,000 square feet referred to in General
Plan Policy 2-3 (footnote **) is not vested pursuant to this Agreernent or otherwise,
E,
City and Owner acknowledge that development and construction of the
Project is a large-scale undertaking involving major investments by Owner and City,
with development occurring in phases over several years, Certainty that the Project
can be developed and used in accordance with the GPA will benefit Owner and City,
and will provide to both parties a relatively perrnanent plan for developrnent of the
Property, in implementation of City's General Plan.
F,
City is willing to enter tills Agreement, for the reasons enumerated in
Cupertino Municipal Code Sections 19,116,010 and 19,116,020, and (i) to elirninate
PAI\311256.04
November 6. 1995
2
uncertainty in the comprehensive development planning of large-scale projects in the
City, such as the Project; (ii) to secure orderly development and progressive fiscal
benefits for public services, improvements and facilities planning in the City; (iii) to
meet the goals and objectives of the General Plan; and (iv) to consolidate, for
Owner's and City's benefit, several associated uses into a modern, high-prestige
research and office complex within the City, at a location well served by regional
highways and local thoroughfares,
G,
City's willingness to enter this Agreernent was a material inducement to
Owner to implement the Project within the City of Cupertino, and Owner proposes to
enter this Agreement in order to obtain assurance from City that the Project may be
developed, constructed, completed and used pursuant to the General Plan, subject to
the lirnitations expressed herein,
H.
On
, 1993, the City Council adopted
Resolution
, certifying that the 1993 General Plan Amendments EIR and
the current General Plan policies were adopted in cornpliance with the California
Environmental Quality Act ("CEQAoo),
I,
On September 11, 1995, City's Planning Commission held a dilly noticed
public hearing on this Agreernent (i) deterrnined that consideration of this Agreernent
complies with CEQA based on certification of a negative declaration; (ii) determined
that this Agreement is consistent with the City's General Plan; and (iii) recommended
that the City Council approve this Agreement with certain arnendments,
PA1I311256.04
November 6, 1995
3
J,
On October 2, 1995, the City Council held a duly noticed public hearing
on tills Agreernent, deterrnined that consideration of tills Agreement complies with
CEQA, found tills Agreement to be consistent with the City's General Plan, and
introduced Ordinance No, 1702, approving this Agreement.
K.
On Novernber 6, 1995, the City Council adopted Ordinance No, 1702,
enacting this Agreernent.
NOW, THEREFORE, pursuant to the authority contained in Section 65864
!tl~, of the California Government Code and Chapter 19,116 of the Cupertino
Municipal Code, and in consideration of the mutual covenants and promises of the
parties, the parties agree as follows:
1.
Develqpment Of The Propert;y,
1.1
Development Plan. Owner shall have the right to develop the
Property in accordance with the provisions of this Agreement. The perrnitted uses of
the Property, the range of density and intensities of use, the range of heights and
sizes of the proposed buildings, the development schedules and the general
provisions for reservation or dedication of land for public purposes or fees in lieu
thereof shall be as provided in the General Plan as of the Effective Date of tills
Agreement; provided, however, that future implementation of the Project will be
subject to other discretionary approvals by City willch would establish the precise
density and intensity of use, the precise heights, locations, sizes of buildings and
traffic rnitigation measures, Notillng contained herein shall restrict City's discretion
to amend, approve or conditionally approve Project features consistent with the
PAl\311256.04
November 6,1995
4
General Plan, Nothing contained herein shall restrict City's discretion to approve
densities, intensities of use, height and size of proposed buildings which would be
less than the maxirnum allowed in the General Plan for the Property,
1.2
Present Right to Develop, Subject to the provisions of this
Agreement, City hereby grants to Owner the present vested right to develop and
construct all improvements comprising the Project in accordance with the policies
and developrnent density regulations set forth in the General Plan, The policies and
development density calculations which shall apply to the Property are set forth and
incorporated herein as Exhibit "e", including 50,000 square feet from the "non-
designated pool" described in Policy 2-3 (Strategy 3) of the General Plan, but
excluding the vesting of any portion of the 2,000,000 square feet of additional
rnitigated developrnent referred to in General Plan Policy 2-3 (footnote **), No future
modifications of the Cupertino General Plan, Municipal Code, ordinances, policies or
regulations which purport to (i) limit the range, rate or amount of possible
development of the Project; or (ii) impose new fees, exactions or moratoria upon
developrnent, occupancy or use of the Project other than as provided in the General
Plan and this Agreement, shall apply to the Project. Nothing stated herein, however,
shall prevent or preclude City frorn adopting any General Plan amendments, zoning
measures or other land use regulations which are consistent with the General Plan
and the terms of this Agreement.
1.3
Conditional Use Permit Approvals. Notwithstanding any other
provision of this Agreement to the contrary, Owner's right to develop and improve
PA1\311256.04
November 6,1995
5
the Project shall be subject to conditional use perrnit approval pursuant to the
policies, regulations, and ordinances ("Land Use Regulations") in effect as of the
Effective Date, provided that the Land Use Regulations applicable to the Project shall
be consistent with the General Plan and shall not be applied so as to delay
umeasonably, prevent or hinder implernentation of the Project pursuant to the
General Plan, Owner's rights hereunder also shall be subject to Owner's compliance
with all reasonable conditions of approval imposed consistent with General Plan
policies and also consistent with the public health, safety, and welfare, The parties
hereby agree that the General Plan policies shall govern the design and scope of all
on-site and off-site improvernents to be constructed for the Project including street
widths and dedications and traffic and air quality rnitigation rneasures,
1.4
Cooperation in Obtaining Allocation of Utilities, City shall
cooperate with Owner in obtaining and reserving frorn the appropriate utility
companies the allocation of sufficient utilities, including electricity, gas, water and
sewerage service capacity and facilities, for development of the Project in accordance
with the terms hereof throughout the Terrn of this Agreement (defined in Section 3
below),
1.5
Advance Payment of Construction Taxes and Fees. In order to
secure for City the econornic benefits of new construction on the Property as early as
is practicable, Owner shall pay to City, within thirty (30) days after the Effective
Date, the sum ("Advance Payment") of Two Hundred Twenty Thousand Dollars
($220,000). The Advance Payment shall be nomefundable, and shall be applied as a
PAl\311256.04
November 6,1995
6
non-interest bearing deposit against the total fees, taxes and other payrnents due from
Owner to City upon Owner's applications ("Permit Applications") to demolish or
construct new buildings on the Property, If the Advance Payment is less than the
total fees due upon Owner's Perrnit Applications, the amount of the Advance
Payment shall be credited against the total payment due, If the Advance Payrnent is
more than the fees due upon Owner's initial Perrnit Applications, the remainder of
the Advance Payment shall be credited against the amounts due upon Owner's
subsequent Perrnit Applications,"
2.
Effect of Agreement.
2.1
Supersedure by Subsequent State or Federal Laws or Re&lliations.
If state or federal laws or regulations enacted after the Effective Date are inconsistent
with the General Plan or the provisions of this Agreernent, this Agreernent shall be
deemed modified or superseded to the extent necessary to cornply with the new state
or federal laws or regulations, Notwithstanding any provision of this Agreement to
the contrary, City may exercise its discretion to impose conditions upon any
development approval for the Project which will enable the City to comply with any
federal or state law, regulation, or mandate which is in effect at the time the approval
is sought, provided that the conditions irnposed (1) are necessary to comply with any
federal or state law, regulations or rnandate which is in effect at the time the
approval is sought; and (2) is necessary to protect against a substantial threat to the
City's health, safety and welfare, Owner shall have the right to challenge, in a court
of competent jurisdiction, the law or regulation preventing compliance with the terms
PAI\311256.04
November 6, 1995
7
of this Agreement and, if the challenge is successful, this Agreement shall remain
unmodified and in full force and effect.
2.2
Future Exercise of Discretion by City, This Agreement shall not
be construed to lirnit the authority or obligation of City to hold convenient or
necessary public hearings, to conduct all analyses required by CEQA, the State
Planning Act, the Subdivision Map Act, City ordinances or any other applicable
federal, state or local law or regulation, Furthermore, this Agreement does not lirnit
the discretion of City or any of its officers or officials with regard to rules,
regulations, ordinances or laws which require the exercise of discretion by any of its
officers or officials, provided that the discretionary decisions reached are consistent
with the General Plan and this Agreernent.
3.
Term. The terrn ("Term") of this Agreement shall commence on the
Effective Date, thirty (30) days after enactment of this Agreernent, and shall
automatically expire five (5) years after the Effective Date, unless Owner commences
construction of new structures on the Property, cornprising a rninirnum of ninety
thousand (90,000) square feet of net usable space, before the fifth (5th) anniversary of
the Effective Date, In that event, the Term shall be autornatically extended until the
tenth (10th) anniversary of the Effective Date, If Owner comrnences construction of
new structures on the Property comprising at least two hundred fifty thousand
(250,000) square feet of net usable space at any time before the tenth (10th)
anniversary of the Effective Date, then the Term of this Agreernent shall be
autornatically extended and shall expire on the twentieth (20th) anniversary of the
PAlI31l256.04
November 6.1995
8
Effective Date, As used herein, the phrase "commence construction" means filing
with the City an application for issuance of a building permit or perrnits, "Net
usable space" means cumulative additional floor area, as defined in the Land Use
Regulations and General Plan, after deducting the floor area of demolished structures
on the Property, Notwithstanding any other provision of this Agreement, the
autornatic extensions of the Term of this Agreement shall lapse and be corne void
within further action by City if as to any building perrnit issued hereunder, Owner
does not request final inspection from the City within eighteen (18) months after
building permit issuance, or within such additional discretionary extensions of time
as are provided for in the Land Use Regulations,
4,
Development Fees. Assessments. Exactions. and Dedications. All
Citywide fees, assessments, dedication forrnulae and taxes payable in connection with
the development, buildout, occupancy and use of the Project pursuant to this
Agreement shall be those applicable to all sirnilar developments in the City at the
tirne of issuance of Project building permits, No new Project-specific fee, assessment,
exaction or required dedication policy, not in effect on the Effective Date, shall be
imposed on the Project, unless it is imposed uniformly on all sirnilar types of
developrnent Citywide, This Agreement does not preclude irnposition of new or
increased fees or taxes on the Project subsequent to the Effective Date, provided that
the fees or taxes shall be imposed or increased on a Citywide basis,
5,
Standard of Review of Ministerial Permits. All ministerial perrnits
("Permits") required by Owner to develop the Property, including (i) road
PA1\311256.04
November 6,1995
9
construction permits; (ii) grading permits; (iii) building perrnits; and (iv) certificates
of occupancy, shall be issued by City after City's review and approval of Owner's
applications therefor, provided that City's review of the applications is limited to
determining whether the following conditions are met:
(a)
The application is complete and includes payrnent of all
applicable fees;
(b)
The application complies with all federal and state requirements
norrnally administered by City; and
(c)
The application demonstrates that Owner has complied with the
General Plan and the applicable Land Use Regulations.
6,
Cooperation in Implementation. City shall cooperate with Owner in a
reasonable and expeditious manner, in cornpliance with the deadlines mandated by
applicable statutes or ordinances, to cornplete all steps necessary for implernentation
of this Agreernent and development of the Project in accordance herewith, in
particular in perforrning the following functions:
(a)
Scheduling all required public hearings by the City Council and
Planning Cornrnission; and
(b)
Processing and checking all rnaps, plans, land use perrnits,
building plans and specifications and other plans relating to development of the
Project filed by Owner or its nominees,
Owner, in a timely manner, shall provide City with all documents,
applications, plans and other information necessary for the City to carry out its
PAl\311256.04
November 6,1995
10
obligations hereunder and to cause its planners, engineers and all other consultants to
submit in a timely manner all necessary materials and documents, It is the parties'
express intent to cooperate with one another and to diligently work to irnplement all
land use and building approvals for development of the Project in accordance with
the terms hereof,
7,
Periodic review.
7,1
Annual Review, City and Owner shall review all actions taken
pursuant to the terms of this Agreernent once annually, within sixty (60) days before
the anniversary of the Effective Date, during each year of the Term unless the City
and Owner agree in writing to conduct the review at another time,
7.2
Owner's Submittal, Within ninety (90) days before each
anniversary of the Effective Date, Owner shall subrnit a letter ("Compliance Letter")
to the City Planning Director describing Owner's compliance with the terms of this
Agreement during the preceding year. The Compliance Letter shall include a
statement that the Compliance Letter is submitted to City pursuant to the
requirernents of Government Code Section 65865,1 and of City's Municipal Code,
7.3
Ci1;y's Findings, Within sixty (60) days after receipt of the
Compliance Letter, the Planning Director shall deterrnine whether, for the year under
review, Owner has demonstrated good faith substantial compliance with the terms of
this Agreement. If the Planning Director finds and determines that Owner has
complied substantially with the terrns of this Agreement, or does not determine
otherwise within sixty (60) days after delivery of the Compliance Letter, the annual
PAl\311256.04
November 6,1995
11
review shall be deemed concluded and this Agreement shall rernain in full force and
effect. Upon a determination of cornpliance, the Planning Director shall issue at
Owner's request a recordable certificate confirrning Owner's compliance through the
year(s) under review, Owner may record the certificate with the Santa Clara County
Recorder's Office, If the Planning Director initially deterrnines the Compliance Letter
to be inadequate in any respect, he or she shall provide written notice to that effect to
Owner. If after a duly noticed public hearing thereon the City Council finds and
determines, on the basis of substantial evidence, that Owner has not complied
substantially in good faith with the terms of this Agreernent for the year under
review, the City Council shall give written notice thereof to Owner specifying the
non-cornpliance. If Owner fails to cure the non-cornpliance within !i reasonable
period of time established by the City Council, the City Council, in its discretion,
may a) grant additional tirne for Owner's cornpliance, or, following a public hearing
on the matter, modify this Agreement to the extent necessary to remedy or rnitigate
the non-cornpliance, or b) terrninate this Agreement. Except as affected by the terrns
hereof, the terms of Cupertino Municipal Code Chapter 19,116 shall govern the
compliance review process to be followed by City,
8.
Default and Remedies.'
8,1
Default. Failure by either party to perform any rnaterial term or
provision of this Agreement shall constitute a default hereunder, provided that the
party alleging the default shall have given the other party advance written notice
thereof and sixty (60) days within which to cure the condition or, if the nature
PA1\311256.04
November 6, 1995
12
thereof is such that it cannot be cured within that tirne, the party receiving notice
shall not be in default hereunder if the party commences to perform its obligations
within the sixty (60) day period and thereafter diligently completes performance,
Written notice shall specify in detail the nature of the obligation to be performed by
the party receiving notice,
8.2
Remedies, Upon City's material default, Owner shall have all of
the remedies available to Owner under California law, including the option to
institute legal proceedings to specifically enforce, rescind or reform this Agreement.
Upon Owner's material default in its obligations set forth in
Section 6 hereof, City shall be entitled to initiate legal proceedings to specifically
enforce, rescind, or reform the Agreernent. Any such legal action by either party
does not preclude that party frorn recovering damages or other judicial relief. No
action by either party during the Terrn hereof shall be deerned a waiver or release of
any right to assert a claim for monetary damages frorn the other party,
9.
Agreement to Amend or Terminate. City and Owner by mutual
agreement may terminate or arnend the terms of this Agreement, and the amendment
or terrnination shall be accomplished in the manner provided under California law
for the adoption of development agreernents,
10.
Mortgagee Protection: Certain Rights of Cure,
10.1
Mortgagee Protection. This Agreement shall be superior and
senior to all liens placed upon the Property or portion thereof after the date on which
a memorandum of this Agreement is recorded, including the lien of any deed of trust
PA1\311256.04
November 6,1995
13
or mortgage ("Mortgage"), Notwithstanding the foregoing, no breach hereof shall
defeat, render invalid, dirninish or irnpair the lien of any Mortgage made in good
faith and for value, but all of the terms and conditions contained in this Agreement
shall be binding upon and effective against all persons and entities, including all
deed of trust beneficiaries or mortgagees ("Mortgagees") who acquire title to the
Property or any portion thereof by foreclosure, trustee's sale, deed in lieu of
foreclosure or otherwise,
10.2
Mortgagee Not Obligated, No foreclosing Mortgagee shall have
any obligation or duty under this Agreement to construct or complete the
construction of any improvernents required in connection with this Agreement, or to
pay for or guarantee construction or completion thereof, City, upon receipt of a
written request therefor from a foreclosing Mortgagee, shall perrnit all Mortgagees to
succeed to the rights and obligations of Owner under this Agreement, provided that
all defaults by Owner hereunder that are reasonably susceptible of being cured are
cured by the Mortgagee as soon as is reasonably possible. The foreclosing Mortgagee
thereafter shall comply with all of the provisions of this Agreernent.
10.3
Notice of Default to Mortgagee. If City receives notice from a
Mortgagee requesting a copy of any notice of default given to Owner hereunder and
specifying the address for service thereof, City shall deliver to the Mortgagee,
concurrently with service thereof to Owner, all notices given to Owner describing all
claims by the City that Owner has defaulted hereunder. If City determines that
Owner is in noncompliance with this Agreement, City also shall serve notice of
PA1\311256.04
November 6, 1995
14
noncompliance on the Mortgagee concurrently with service thereof on Owner, Each
Mortgagee shall have the right during the same period available to Owner to cure or
remedy, or to commence to cure or rernedy, the condition of default claimed or the
areas of noncompliance set forth in City's notice,
11.
Assignability,
11.1
Right to Assign. Owner rnay not assign its rights to develop the
Project pursuant to this Agreement without written consent of the City, which
consent shall not unreasonably be withheld, In addition to any other reasonable
basis, City may withhold its consent upon a deterrnination that the proposed assignee
has insufficient assets or financial ability to cornplete or rnanage the Project. Each
successor in interest to Owner shall be bound by all of the terrns and provisions
hereof applicable to that portion of the Project acquired by it. Subject to the
foregoing, this Agreernent shall be binding upon and inure to the benefit of the
parties' successors, assigns and legal representatives, The terrns of this section 11.1
shall not restrict, prevent or otherwise affect Owner's ability to lease, sell or convey
interests in the Property, This Agreement or a memorandum hereof shall be
recorded by the City in the Santa Clara County Recorder's Office promptly upon
execution hereof by both parties,
11.2
No Release Until Final Inspection. Owner shall not be released
from its obligations under this Agreernent with respect to each portion of the Project
transferred or assigned until City has issued a building permit for the particular
affected portion of the Project,
PAl\311256,O4
November 6, 1995
15
11.3
Covenants Run With The Land, During the Term of tÌÚs
Agreement, all of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding
unconditionally upon the parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns, devisees, adrninistrators, representatives,
lessees and all other persons or entities acquiring the Property, any lot, parcel or any
portion thereof, and any interest therein, whether by sale, operation of law or other
rnanner, and they shall inure to the benefit of the parties and their respective
successors, This Agreernent creates no personal obligations of Owner or its
successors, but only obligations appurtenant to the Property,
12.
General,
12.1
Construction of Agreement. The language in this Agreement in
all cases shall be construed as a whole and in accordance with its fair rneaning. The
captions of the paragraphs and subparagraphs of this Agreement are for convenience
only and shall not be considered or referred to in resolving questions of construction,
This Agreement shall be governed by the laws of the State of California,
12.2
No Waiver, Subject to the provisions of Section 8,2, no delay or
omission by the City in exercising any right or power accruing upon the
noncompliance or failure to perforrn by Owner under the provisions of this
Agreement shall impair any right or power or be construed to be a waiver thereof,
A waiver by City of any of the covenants or conditions to be performed by Owner or
PA1\311256.04
November 6,1995
16
City shall not be construed as a waiver of any succeeding breach of the same or other
covenants and conditions hereof,
12.3
Agreement is Entire Agreement. This Agreement and all Exhibits
attached hereto or incorporated herein comprise the sole and entire Agreernent
between the parties concerning the Project, The parties acknowledge and agree that
neither of them has rnade any representation with respect to the subject matter of this
Agreement or any representations inducing the execution and delivery hereof, except
the representations set forth herein, and each party acknowledges that it has relied on
its own judgrnent in entering this Agreernent. The parties further acknowledge that
all statements or representations that heretofore may have been made by either of
them to the other are void and of no effect, and that neither of them has relied
thereon in connection with its dealings with the other,
12.4
Estoppel Certificate, Either party from time to time may deliver
written notice to the other party requesting written certification that, to the
knowledge of the certifying party (i) this Agreernent is in full force and effect and
constitutes a binding obligation of the parties; (ii) this Agreement has not been
amended or modified either orally or in writing, or, if it has been amended or
modified, specifying the nature of the amendments or modifications; and (iii) the
requesting party is not in default in the performance of its obligations under this
Agreement, or if in default, describing therein the nature and monetary amount, if
any, of the default. A party receiving a request hereunder shall execute and return
the certificate within thirty (30) days after receipt thereof, The Planning Director of
PA1\311256.04
November 6, 1995
17
City shall have the right to execute the certificates requested by Owner hereunder,
City acknowledges that a certificate hereunder may be relied upon by perrnitted
transferees and Mortgagees, At the request of Owner, the certificates provided by
City establishing the status of this Agreement with respect to any lot or parcel shall
be in recordable form, and Owner shall have the right to record the certificate for the
affected portion of the Property at its cost.
12.5
Counterparts. This Agreement rnay be executed in counterparts,
each of which shall be deerned to be an original, but the counterparts together shall
constitute only one Agreement.
12.6
Severability, Each provision of this Agreernent which shall be
adjudged to be invalid, void or illegal shall in no way affect, irnpair or invalidate any
other provisions hereof, and the other provisions shall remain in full force and effect.
12.7
Further Doruments, Each party hereto agrees to execute all other
documents or instruments necessary or appropriate to effectuate and implernent this
Agreement.
12,8
Time of Essence, Tirne is of the essence in the performance of
every covenant and obligation to be performed by the parties hereunder.
12.9
Attorneys' Fees, In the event of any dispute between the parties
involving the covenants or conditions contained in this Agreement, the prevailing
party shall be entitled to recover reasonable expenses, attorneys' fees and costs,
"Prevailing party" shall include a party who brings an action against the other party
after the other party's breach or default, if the action is settled or dismissed upon
PAI\311256.04
November 6,1995
18
payrnent or performance by the other party of the matter allegedly due, or
perforrnance of the covenants allegedly breached, or if the plaintiff obtains
substantially the relief sought by it in the action,
12.10
Indemnity, Each party shall indemnify, hold harmless and
defend the other party for all claims for damages of any kind arising from the
indemnifying party's performance of this Agreement.
13,
Notice, Except as otherwise expressly provided herein, all notices and
demands pursuant to this Agreement shall be in writing and delivered in person, by
commercial courier or by first-class certified mail, postage prepaid and return receipt
requested, Except as otherwise expressly provided herein, notices shall be
considered delivered when personally served, or upon actual receipt if delivered by
commercial courier or by mail. Notices shall be addressed as appears below for the
respective parties; provided, however, that either party may change its address for
purposes of this Section by giving written notice thereof to the other party:
City:
City Clerk
The City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Owner:
Bay Area Real Estate Manager
Hewlett-Packard Cornpany
3000 Hanover Street
Palo Alto, California 94304
With copy to:
Corporate Counsel
Hewlett-Packard Company
3000 Hanover Street
Palo Alto, California 94304
PAI\311256,O4
November 6.1995
19
The provisions of this Section shall be deerned directive only and shall not
detract frorn the validity of any notice given in a rnanner
which would be legally effective in the absence of this Section,
IN WITNESS WHEREOF, City and Owner have caused this Agreement to be
executed in one (1) or more copies as of the day and year first above written,
"CITY"
TIIE OTY OF CUPERTINO,
a muniåpal corporation
By
"OWNER"
HEWLETI-PACKARD COMPANY,
a California corporation
By:
Title:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
PA1\311256.04
November 6.1995
20
I l' j'
) . Jl
J
1
[%1 )
~ )
0
:;:) .
I
HOMESTEAD
Il
J \
r
\
("
l
"THE PROPERTY"
(
l ¡;
r q
\ ¡L
If..
.Ui. \
( -=
'C
ih-
!
EB
:-:.:.~
APIUL ",."
so,",
HEWLEIT -PACKARD CUPERTINO SITE
EXHIBIT A
l
I \
HC*=D ""'D '
Tlc...!. 1
EB
f--..=.
A,':.!."
30M
lnitUú H-P £':p"",iDn
77E." I
WLETT.PACX:ARD
--" - - CUPERTlIIO SITE MASTER PLAII
Illustrative Example
EXHIBIT B
l: I \ . I "
Dgb~Ir-~ú~- . J.~~ .11[
~DlIl.IËI~~=][~c=l\
l ruJJtl \ I~ r- . ;7 = lr:=J c;WJ ~.
11'~~~~'4 ~ .- ~ 'I~-. EJ\ (
~ ~. ~,I ~~Vj¡.í'A, "ffi"'~ . IJ,~ru \ ¡;- ~,.j r[
). . ~ ,DL-Jc...J~-:::J
=--¡-¡-I- Ä ~ -- \:."'-~\r"'" Ir- - ïU l-
,-,- ,- ,~ I ~ (/ - - \ l ~~==
~='::i4 u ~ r~~(
;~ ~ ' . , -----
,----.-:......., I ""'1'4:;::::-"',,"':'::::.1 ---
)L
EB
~
"""'-
1m
~ Q M
TIE.< '&1 wr." 3CJI.::I.'C; " ,'~\lCV".l1
WLET7-?ACJ:ARO CU?ERTtNQ :ITE MASTER PLA/I
Illustrative ExamplerÐCHIBIT B
. - -... " _.
\r
JI
ì
1
EB
ILWS7?ATi:r:.
:--.:;:..;:.
""'ILl'"
SO,..
HEWlEIT.PAG<ARD CUPE:<rINO SiTE MASTE:< PL~N
Illustrative Example
EXHIBIT B
DEVELOPMENT ALLOCATION PURSUANT TO GENERAL PLAN POliCY 2-3
I ~ CARS I
ALLOWED (Occupiable Space)
96 Acres @ .33 FAR: 1,378 0.33
(Bonus) 50
Total Allowed 1,428 0.34
ACIUAL (Occupiable Space)
EXISTING 1,046 0,25
Demolition (B40, B41) -158
New Construction 540
Total Occupiable at Full 1,428 0,34 5,D98 (req'd @ 3.55/1000 sf)
Build out 5,241 (actual @ 3,65/1000 sf)
O\...,,\DBA\T"'~
EXmBIT C