Third amendment to agreement
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Westland Shopping Center L.P.
c/o Ferrari, Alvarez, Olsen & Ottoboni
333 W. Santa Clara Street, suite 700
San Jose, CA 95113
Attn: James J. Eller, Esq.
THIRD AMENDMENT AND SUPPLEMENT TO AGREEMENT
This Third Amendment and Supplement to };greement ("Third
Amendment") made and entered into as of 11.á/lt-L) ?
1991 by and between the CITY OF CUPERTINO, a municipal
corporation of the State of California ("City") and WESTLAND
SHOPPING CENTER L.P., a California limited partnership
("Westland") .
WIT N E SSE T H:
A. City and Vallco Park, Ltd., a California limited
partnership ("Vallco") entered into that certain Agreement dated
October 8, 1974, recorded October 17,1974 in Book B 135 of the
Official Records of Santa Clara County, California at page 370
(the "Original Agreement");
B. The original Agreement was amended by that certain
Supplement to Agreement dated August 5, 1975, by and between city
and Vallco and recorded August 20, 1975 in Book B 571 of the
Official Records of Santa Clara county, California at page 724
("Supplement"). The Original Agreement was further amended by
that certain Second Amendment to Agreement dated March 1, 1976,
by and between City and Vallco recorded September 14, 1976 in
Book C280 of the Official Records of Santa Clara County,
California at page 236 (the "Second Amendment"). The Original
Agreement, together with the Supplement and Second Amendment, are
hereinafter referred to as the "Existing Agreement";
C. Westland is the successor in interest to Vallco. City
and Westland desire to supplement and amend the Existing
Agreement pursuant to the provisions of paragraph 7 of the
original Agreement, to cause to be granted by City to Westland
certain additional perpetual and exclusive easements for
pedestrian walkways and buildings and for vehicular and
pedestrian tunnels and appurtenances thereto, all as described in
more detail hereinbelow and to amend the Existing Agreement to
provide for the termination of certain rights granted to city
under the Existing Agreement.
D. The supplements, modifications and amendments to the
Existing Agreement are desired to allow expansion and
construction of additional improvements for the Vallco Fashion
Park regional shopping center ("Shopping Center") pursuant to the
terms and conditions of that certain Development Agreement dated
August 15, 1991 by and between the city of cupertino and Westland
Properties Inc. and Westland Shopping Center L.P. relative to the
development known as Val1co Fashion Park (the "Development
Agreement"). The parties agree and acknowledge that the
supplements, modifications and amendments set forth herein will
benefit the City and Westland.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein set forth, and for other valuable
consideration, it is agreed as follows:
1. City hereby grants to Westland for the benefit of,
and appurtenant to, and running with the land in favor of, the
property owned by Westland which is shown on Exhibit "A" attached
hereto and incorporated herein by reference, the following:
a. The perpetual and exclusive easement to
construct, to maintain in place, and to maintain, repair,
replace, reconstruct and to use buildings, structures and
improvements, including without limit retail shops, restaurants,
and other uses found in regional shopping centers, from time to
time, above a plane fifteen (15) feet above the highest point of
the traveled surface of Vallco Parkway, crossing Val1co Parkway,
a dedicated public street, in the location shown on Exhibit "A-1"
attached hereto and by this reference incorporated herein;
together with perpetual and exclusive easements for the
construction, maintenance in place, and maintenance, repair,
replacement, reconstruction and use of columns, supports,
footings, and foundations for said buildings, structures and
improvements to be located in, below and above the public right-
of-way of Vallco Parkway, except that such columns, supports,
footings and foundations may not be located upon or within the
traveled surface of said dedicated public street.
b. The perpetual and exclusive easement to
construct, to maintain in place, and to maintain, repair,
replace, reconstruct and to use buildings, structures and
improvements, including without limit retail shops, restaurants
and other uses found in regional shopping centers, from time to
time, above a plane fifteen (15) feet above the highest point of
the traveled surface of Wolfe Road, crossing Wolfe Road, a
dedicated public street, in the location shown on Exhibit "A-2"
attached hereto and by this reference incorporated herein;
together with perpetual and exclusive easements for the
construction, maintenance in place, and maintenance, repair,
replacement, reconstruction and use of columns, supports,
footings, and foundations for said buildings, structures and
-2-
improvements to be located in, below and above the public right-
of-way of Wolfe Road, except that such columns, supports,
footings and foundations may not be located upon or within the
traveled surface of said dedicated public street.
c. The perpetual and exclusive easement to
construct, to maintain in place, and to maintain, repair,
replace, reconstruct and use a vehicular and pedestrian tunnel
under Vallco Parkway and appurtenances thereto not in excess of
seventy (70) feet in width, to be constructed within the area
shown on Exhibit "A-3" hereto;
d. The perpetual and exclusive easement to
construct, to maintain in place, and to maintain, repair,
replace, reconstruct and use a vehicular and pedestrian tunnel
under Wolfe Road and appurtenances thereto not in excess of
seventy (70) feet in width, to be constructed within the area
shown on Exhibit "A-4" hereto;
e. City will initiate appropriate proceedings to
vacate or abandon any public street rights in or to the air space
or subterranean space which is subject to the easements herein
granted by city, if requested by Westland to do so.
2. At the request of either party, the parties hereto
shall join in the execution of a recordable instrument
supplementing this Third Amendment so as to describe with
particularity the area with respect to which the easements
granted herein are located to the extent such easements are not
described particularly in the Exhibits hereto.
3. The parties wish to amend and modify the Existing
Agreement to terminate any and all rights granted to City in
paragraph 1 of the original Agreement relating to the real
property described as that portion of the real property shown
shaded on Exhibit B to the original Agreement. city agrees to
execute a separate document in recordable form ("Quitclaim Deed")
quitclaiming, remising and releasing to Westland all of its
right, title and interest under the Existing Agreement in and to
the real property which is shown shaded on Exhibit B to the
Original Agreement.
4. As additional consideration of the execution of
this Third Amendment, Westland agrees to pay to city the amounts
set forth (at the times set forth) in section 2.7 of the
Development Agreement. Such sums shall be utilized by city in
the manner set forth in section 2.7 of the Development Agreement.
The parties hereto acknowledge and agree that the payments
described in paragraph 12 of the original Agreement shall
terminate in 1994.
-3-
5. Paragraph 5 of the Original Agreement is hereby
deleted in its entirety and the following paragraph is inserted
in its place:
"5.
hereunder
and shall
certified
addressed
All notices and other communications given
by either party to the other shall be in writing
be deemed given when mailed, postage prepaid, by
or registered mail, return receipt requested,
as follows:
If To citv:
city of cupertino
10300 Torre Avenue
cupertino, CA 95014
Attn: city Manager
If To Westland:
c/o Westfield, Inc.
11111 Santa Monica Blvd., suite 1700
Los Angeles, CA 90025-3348
Attn: President"
6. This Amendment shall benefit and bind the parties
hereto, their respective successors, successors-in-interest and
assigns.
7. Except as hereby supplemented and amended, the
Existing Agreement shall remain in full force and effect and, as
hereby supplemented and amended, is ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment and supplement to Agreement as of the day and year
first above written.
CITY OF CUPERTINO, a municipal
::~..R
BARA KOPP L, or
city of cupertino
??
WESTLAND SHOPPING CENTER, L.P.
By:
Westland Projects, Inc., a
~tion,
Ge ral Pa tner
Its:
ft2øslr?øv7
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state of california)
'" -#-- æ ) SS.
County of~ ~)
On this ~ay of ~~ , in the year 19~ before
me, a notary public, personally appeared BARBARA KOPPEL and
CHARLES KILIAN personally known to me (or proved to me on the
basis of satisfactory evidence) to be the persons who executed
the within instrument as Mayor and city Attorney of the city of
cupertino and acknowledged to me that the City of cupertino
executed it.
A~~
ic for the State of California
My commission expires: ~ /~ /~'?-z-
'¡P~~"'~""""""""""""""<'>."'~"""<><9<><9 <
~~. OFFICIAL €'iAL ' o;¡
1:! "'~.",'/~,.,"1 D,o~othYM, arieC I' îi
"'- "',.,.;ý' N:è""ey PL311C J A~~;e IUS ~
-' 'A"A' ',UC"IA"
';;. ,'~y COmmjssi~ -' , ,c,'\KA COUNTY 'P
-~"" ' .. - n txplres Sept, 18, 1992 d
;0"""°"'"'"0,""",""""" ,< "
, 0<0"'<90<9"',",."
County of
)
) ss.
)
state of California
On this - day of ,
me, a notary public, personally appeared
, personally known to me (or oved
the basis of satisfactory evidence) to be the son who
this instrument, on behalf of Westland Pro' s, Inc., a
california corporation, the general par r of Westland Shopping
Center, L.P., and acknowledged to me at Westland Shopping
center, L.P. executed it.
for the State of california
expires:
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STATE OF CALIFORNIA)
) ss.
CITY OF LOS ANGELES)
On this 18th day of May, 1992, before me, Rory A. Packer,
a Notary public, personally appeared Richard E. Green, known to me
to be the person who executed the within instrument, and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the entity
upon behalf of which he acted, executed the instrument.
WITNESS my hand and official seal.
nt of Westland Shopping Center L.P.
Capacity of signer:
Type of Document: Third Amendment and Supplement to Agreement
Ir-' - -
I~"">':'~".:<", OFFICIAL SEAL
::!~". RORYAPACKER
;;.:"" '. ; Notary Public-Califomia
',ot.-; ,. ,. LOS ANGELES COUNTY
,~.. .....~ My Comm, E~p;..Apr. 12, 1993
state of California)
county Of~~¡~il ~ ss.
On this ÝI! day of , in the year 19Íb before
me, a notary public, pers lly ppeared DOROTHY CORNELIUS
personally known to me (or pro d to me on the basis of
satisfactory evidence) to be the persons who executed the within
instrument as city Clerk of the city of cupertino and
acknowledged to me that e ity of cupertino executed it.
~',<9"""""t<O""'",<9""'"<9G<50"'O,<9t<9""'~'
, OFFICIAL SEAL ~
ROSERTA ANN WOLFE ~
NCT ARY PUBLIC. CALIfORNIA 8
; SANTA CLARA COUNTY ~
; ,My Commission Expires June 11, 1993 G
~,- '.'."N"N.."GN¡¡}"G>:IG>:I~G>:IG>::G>::G"
My commission expires:
GPM244c/5272-1
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