16-142 Agreement To Be Recorded Affecting Real Property with Cupertino 10145, LLC (Marina Plaza)RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Cupertino
10300 Torre Avenue
Cupe1iino, CA 95014
Attn.: City Manager
No fee for recording pursuant to
Government Code Section 27383
23561216
Regina Alcomendras
Santa Cl ar a Cou n ty -Cl erk-Re c o r de r
01/18/2017 02:43 PM
Ti lles: 1
Fe es : 10 .00 Taxes : 0
Total : 0 .00
Pages: 9
(Space above for Recorder 's Use)
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
This AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
("Agreement"), dated as of October 20, 2016, is made and entered into by and between
CUPERTINO 10145, LLC, a Ca lifornia limited liability company ("Developer"), and the CITY
OF CUPERTINO, a California municipal corporation ("City"), (individually a "Party" and
collectively the "Parties").
RECITALS -.
A. D eveloper is the owner of that ce1iain real prope1iy commonly known as 10145
North D e Anza B ou levard (APN 32 6 -34-043) in Cupertino , California, County of Santa Clara as
more paiiicularly described in Atta~hment 1 attached hereto and incoq1orated herein by this
reference (the "H otel Parcel"). The H otel Parcel, together with i0118-10122 Bandley Drive
(APN 326-3 -06 6) ("Residential Parcel") constitute the "P roperty."
B . The City on one hand , and Developer and Marina Plaz a , LLC, a California limited
liability company (together the "Property Owners"), on the other, have entered into a
Development Agreement ("Development Agreement"), effective October 20, 2016 and
recorded on Novert1be.~_, 20 16 in the Official Records o f Santa C lara County as Instrument
No . z3yc:n, 15 ----·-' to facilitate development of the Property subject to ce1iain tern1s
and cond i tions . Property Owners intend to demolish the existing c01m11ercial space on the
Property and redevelop the Property with a 122-room full service neighborhood business hotel
o n the Hotel P arce l ("Hotel"), as well as 188 residential rental apartment units and
approximately 23,600 square feet of c01mnercial space on the Residential Parcel, and related
uses, as further described in the Development Agreement and the Project Approvals referenced
therein (co ll ecti vely th e "P roject"). All capitalized tenns not otherwise defined in this
Agreement have the meaning ascribed to them in the Developm ent Agreement.
C. Developer and C ity have agreed to execute and record this Agreement in order to
bind Developer and future owners of the Hotel Parcel to certain obligations regarding the
ongoing use and operation of the Ho tel and Hotel Parcel and cetiain other obligati ons , all as set
f01ih herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual benefits accruing to the Parties
hereto, and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Developer and City on behalf of themselves and their respective heirs , executors,
successors, assigns and each successor in interest hereby covenant and agree as follows:
1. No Extended Stay Hotel. Developer hereby covenants and agrees, for itself, its
successors, its assigns and every successor in interest to the Hotel Parcel or any part thereof, that
for the time period set fo1ih below, no Extended Stay hotel use shall be allowed on the Hotel
Parcel. As used herein "Extended Stay" is defined as overnight occupancy for thirty (30)
consecutive days or longer; provided, however, that a stay in which a guest "checks out" of the
Hotel not less than every twenty-ninth (29th) day shall not be considered an Extended Stay,
notwithstanding that such guest i1mnediately checks back into the Hotel.
2. Use of Conference Rooms . Developer hereby covenants and agrees, for itself, its
successors, its assigns and every successor in interest to the Hotel Parcel or any paii thereof, that
the Hotel will contain at least one (1) conference room totaling no less than Five Hundred (500)
square feet of conference space ("Conference Rooms"). Developer hereby grants City the 1ight
to use the Conference Rooms, at no cost to City, for the purpose of hosting meetings and other
City events for up to 12 days per year upon thirty (30) days prior w1itten notice to Developer.
Use of multiple Conference Rooms in a given day shall be counted as one day per Conference
Room. Developer shall h ave the right to reasonably reject elates requested by City, provided
Developer offers City at l east three (3) alternative dates, each of which shall be within 15 days of
the date 01iginally proposed by City and rejected by Developer. Developer fmiher agrees to
provide food, beverages, and other amenities during the City 's use of the Conference Rooms at a
rate not to exceed the rate offered to the general public for such amenities. City shall indemnify
and hold Develop er ham1less from any property damage, bodily injury, or death aiising out of
the City 's use, of the Conference Rooms to the extent caused by the sole or active negligence or
willful misconduct of City. Except as otherwise expressly provided in the foregoing sentence,
City shall not be liable in any manner for any inconvenience, disturbance, loss of business,
nuisance, or other damage arising out of its use of the Conference Rooms .
3. Interference With Financing. No violation or breach of the covenants, conditions ,
rest1ictions, provisions or limitations contained in this Agreement shall defeat or render invalid
or in any way impair the lien or charge of any mortgage, deed of trust or other financing or
security instrument; provided, however, that any successor of Developer to the Hotel Parcel shall
be bound by such remaining covenants, conditions, restrictions, limitations and provisions ,
whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's
sale or otherwise.
4 . Beneficiaries. City is deemed the beneficiary of the tem1s and provisions of this
Agreement and of the covenants ru1ming with the land , for and in its own 1ight and for the
purposes of protecting the interests of the community and other paiiies, public or p1ivate, in
whose favor and for whose benefit this Agreement and the covenants rmming with the land have
been provided, without regard to whether City has been, remains or is an owner of any land or
interest therein in the Hotel Parcel or the Project. City shall have the right, if the Agreement or
2
covenants are breached , to exercise all rights and remedies , and to maintain any actions or suits
at law or in equity or other proper proceedings to enforce the curing of such breaches to which it
or any other beneficiaries of this Agreement and covenants may be entitled.
5. lntegratep_~™ment; Relationship to Other Related Agreements and
Documents . This Agreement, including the Recitals and all Attaclunents (which are hereby
incorporated by reference), together with the Development Agreement, including the Recitals
and all Exhibits thereto, contains the entire agreement between the Paiiies with respect to the
subject matter hereof, supersedes whatever oral or written understanding they may have had
prior to the execution of this Agreement and the Development Agreement. In the event of any
express conflict between this Agreement and the Development Agreement, the provisions of the
Development Agreement shall control. No waiver, alteration, modification, or tennination of
this Agreement shall be valid unless made in writing and signed by the authorized Parties hereof.
6. Notices . All notices required pursuant to this Agreement shall be in writing and
may be given by personal delivery or by registered or certified mail, return receipt requested , to
the Party to receive such notice at the addressed set fmih below:
TO THE CITY:
City of Cupertino
· Office of City Attorney
10300 Toffe Av enue
Cup ertino , CA 95014
TO THE DEVELOPER:
Albe1i Wang
Cupertino 10145, LLC.
4546 El Camino Real, Suite 222
Los Altos, CA 94022
7. Each Paiiy's Role in Drafting the Agreement. Each Paiiy to this Agreement has
had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of
the Agreement, and negotiate revisions to the Agreement. This Agreement shall be deemed to be
jointly prepared by both of the Parties hereto , and any ambiguities or unce1iainties herein shall
not be construed for or against either of the Paiiies hereto. The words "including," "included,"
"include" and words of similar impo1i shall be not be interpreted as words of exclusion but shall
instead be interpreted as though followed by the words "but not limited to" or "without
limitation ." No w aiver by City of any breach or default of any provision of this Agreement shall
be deemed a waiver of any other provision hereof or of any subsequent breach or default by
Developer of the same or any other provision. The invalidity of any provision of this Agreement
as detennined by a comi of competent jmisdiction shall in no way affect the validity of any other
pro v ision hereof.
8 . Wan-anti es . The Parties represent and wmTant that each has the full 1ight, power
and authority to ca1Ty out its obligations under this Agreement. The indi v iduals executing this
3
Agreement on behalf of the Parties represent and warrant that they have full power and authority
to execute and deliver this Agreement on behalf of such Party.
9. _Agreement Binding on Successors and Assigns. All prov1s10ns of this
Agreement, including the benefits and burdens, are equitable servitudes, run with the Hotel
Parcel and are binding upon the heirs, executors, successors , assigns and personal representatives
of Developer and inure to the benefit of City and its successors and assigns. Each and every
contract, deed or other instrument covering, conveying or otherwise transferring the Hotel Parcel
or the Hotel or any portion thereof or interest therein shall conclusively be held to have been
executed, delivered and accepted subject to this Agreement.
10. No Third Party Beneficiaries . This Agreement shall not be deemed to create any
third-party beneficiary rights for any person or entity.
11 . Applicable Law . This Agreement shall be governed by California law. The
proper venue for any legal action brought under this Agreement shall be the Superior Court for
Santa Clara County, California, except for actions that include claims in which the United States
Distiict Court for the N01ihern Distiict of the State of California has original jurisdiction, in
which case the No1ihem District of the State of California shall be the proper venue.
12 . Prevailing Party's Fees and Costs. In the event any a ction i s brought by either
Pmiy hereto as against the other Party hereto for the enforcement or declaratio n of any right or
remedy in or under this Agreement or for the breach of any covenant or condition hereof, the
prevailing Party shali be entitl ed to recover, and the other Pmiy agrees to pay, all fees and costs
to be fixed b y the court therein including, but not limited to, reasonable attorneys' fees and costs.
13. Severability. In the event any limitation, condition, restriction, covenant, or
provision contained in this Agreement is to be held invalid , void or unenforceable by any comi
of competent jurisdiction, the remaining p01iions of this Agreement shall nevertheless be and
remain in full force and effect.
14. Recording of Agreement. This Agreement shall be recorded against the Hotel
Parcel in the Official Records of the County of Santa Clara concurrent with the recordation of the
Development Agreement.
15 . Title of Pmis and Sections. Any titles of the sections, subsections, or
subparagraphs of this Agreement are inserted for convenience of reference only and shall be
disregarded in interpreting the Agreement.
16. Counterpmis. This Agreement may be executed in counterpmis, each of which
shall be deemed an 01iginal , but all of which together shall constitute but one and the same
instrument.
[Signatures on Follo w ing Page}
4
IN WITNESS WHEREOF , the Paiiies hereto have executed this Agreement the day and
year first above written.
ATTEST:
CITY: ::TY ½O,z:~oration
David Brandt, City Manager
/Signature must be notarized/
By: ~1s;LJLto3if lo
Grace Schmidt, City Clerk
APPROVED AS TO FORM:
kM J}J: -~---\J Randolph Stevenson Hom, City
Attorney
5
DEVELOPER:
CUPERTINO 10145 , LLC, a California limited
liability company
By: Alb~~if
/Signatures must be nota rized/
ATTACHMENT 1
HOTEL PARCEL DESCRIPTION
10145 NORTH DE ANZA BOULEY ARD (APN 326-034-043)
All that certain Real Prope1iy in the City of Cupertino, County of Santa Clara , State of
California, described as follows:
PARCEL ONE:
LOT 1, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "TRACT NO. 5162", WHICH
MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY
OF SANTA CLARA, STATE OF CALIFORNIA, ON MAY 2 , 1972 , IN BOOK 300 OF MAPS
AT PAGES 26 AND 27 .
PARCEL TWO:
AN EASEMENT FOR IN GRESS AND EGRESS OVER A STRIP OF LAND 14.50 FEET IN
WIDTH THE EASTERLY AND NORTHERLY LINES OF WHICH ARE MORE
PARTICULARLY DESCRIBED A S FOLLOW S :
BEGINNING AT THE SOUTHWESTERLY CORNER OF THE ABOVE DESCRIBED LOT;
THENCE FROM SAID POINT OF BEGINNING AND ALONG THE GENERAL WESTERLY
BOUNDARY LINE OF SAID LOT NORTH 0°01 '04" WEST, 14 2.71 FEET AND SOUTH
89 °58 '56 " WEST, 2 7 .00 FEET AND THE TERMINUS OF THE LINES DESCRIBED
HEREIN.
Attachme11t 1
j A notary publi c or other officer compl eting this certificate verifies ~~ly the id entity of th-;;-indi v idual who signed ·
the document to which this certificate is attache d, and not th e truthfulness , accuracy, or va lidi ty of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
)
)
On Och,,,.,,/3 2-1.c , before me, .k_,;.s+_~l!o,~~ S-2 v-.rc.illi. N ,.-+,,..r.., fVb r,·c.:..,,
Name And Titll Of Officer (e.g ." Ja ne Doe . Notary Public") Da te
persona11y appeared ·--------'A'-'-l __ ~ ___ w __ 'l_,,......._ ___________ _
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person~ whose name~ ~/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in ,bJ§/her/their authorized capacity~.
and that by ll.LsLher/their signatureµl) on the instrument the
person(;J?, or the entity upon behalf of which the person~
acted, executed the instrument.
I certify under PENAL TY 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
OPTIONAL
Though this section is op tion a l, completing this information can deter alternation of the document or fraudul ent
reattachment of this form to an uni ntended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name:
D Individual
[J Corporate Officer
Titl e(s)
D Partner(s )
[J Attorney-In-Fact
CJ Trustee(s)
D Guardian/Conservator
D Other :
Signer is repre senting :
Name Of Person(s) Or Entity(ies)
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
~ Title or Type of Do cument
Number Of Pag es
_12_c.....-/-o b ~ 2,,o Lo { C:,
Date Ofbocument
Signer(s) Other Than Named Above
Acknowledgements
, A nota ry public or other officer comp leting this certi fi ca te verifi es only the id entity of the indiv idu al who sig ned
th e doc ument to which this certificate is atta ched, and not the truthfuln ess, accuracy, or vali dity of that docum e1~t.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
)
)
On Oc.-f.:. b "-4 (ll> '1..-o t e,, , before me, 't<,rs+-~ /? ... b1e.e S"cz..uo,._rc...;, 1 No+c...,1 f ub 1,·c. ,
Name And Title Of Officer (e.g.· Ja ne Doe, Notary Public") Date
personally appeared
KIRSTEN RENEE SQUARCIA
Commission # 2080884
j Notary Public -California ~
z Santa Clara County ~ J. ;~ • • oMJ 8°:1T-.P£tis};tj,J~1iE
.b °'-v;'c,/ Br°'.,,cl+
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(..s') whose name {;a1 is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in ..b@ her/their authorized capa city~,
and that by b.l§_/her/their signature~) on the instrument the
person,'81 , or the entity upon behalf of which the perso !JW
acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
I~~ -4--~ ,
~S ""i-gn_a.,..t~-re-1-,-,h-0----,-ta-ry---=-pu...,...b.,,..lic _______ _
OPTIONAL
Though this section is optional , completing th is infor m ation can deter alternation of the document or fraudulent
re attachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name :
D Individual
D Corporate Officer
Titl e(s)
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
D Guardian/Conservator
D Other:
Signer is representing :
Name Of Person(s) Or Entity(i es)
D Limited
D General
DESCRIPTION OF ATTACHED DOCUMENT
Title o r Type of Document
Number Of Pages
Date Of Do cume nt
Signer(s) Oth er Than Nam ed Above
Ackn owledgemen ts
VERIFICATION
I have reviewed this Agreement to Be Recorded Affecting Real Property 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.
Executed on the 9th day of January, 2017, at Cupertino, California.
ctf]$
Lauren Sapudar
Senior Office Assistant