Vallco Park Ltd. construction of regional shopping center 10-08-74 Reso 3759 (x-ref 91-023).. ..,1.kh4A .ri�:. .. ,-....^M+..vbmaAr:!@a.r'S.;axF.:.+m•n ...,,para, ta. .,......>. x. >.r-.
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MOM
'73 t J of Cupertino a- ILEO FOR R[OOSU
103W Torre Avenge AT ' i U99T OF
Cupertino, CA. 95334
A G "R E ?4 Tt 1Q 23 i�1� 7
D Aja 1370 A
This Agreement mada and entered into this 8th day of October;
1974 ,-y and between the City of Cupertino, California, a municipal
corporation ("City"), and Vallco Park, Ltd., a California limited
partnership ("Vallco"),
S�"i� ^K' �.° ��".�i� �1 'kx�+ � � d+ y'+d�• v _�x:tth .p4�4 ,,�, t.,y� �q ". tf 1 J. 1,ASC� i � �a � s'�Kg � �S:M
:dllco hereby irrevocably offers to grant to City
th,:. following:
a) Perpetual and exclusive easements (i', for air
rights permitting the construction, maintenance in place ane
maintenance, repair, replacement, reconstruction, and use a`;ove
a plane twelve (12) feet above: the portion of the real property
owned by Vallco shown shaded on Exhibit B, and ;ii) for subter-
ranean rights permitting the construction, maintenance in place
and maintenance, repair, replacement, .reconstruction and use of
two (2) levels.of below -ground parking beneath said portion of
the real property owned by Vallco shown shaded on Exhibit B (all
without expense to Vallco), of automobile parking structures and
a station serving the public rapid transit facility contemplated
to be constructed contiguous to I-280, together with perpetual
and exclusive easements for support of the elevated parking struc-
ture and station and for facilitie:s for access to all such facili-
ties; provided: (i) the granting to City by Vallco of such ease -
,
ase
meats will be without cost or expense to City; {ix) `the imrove�
meets constructed or caused to be constructed by City pursuant to.;Z
t
such grant shall not (after construction is completed, whi'c'h"' h-
struction
hichcon-
struction shall be prosecuted to completion with all due diligence)
mat-rially impair the use of such automobile parking spaces, and City
shall at its expense replace within said parking structure a number of
automobile parking spaces equal to those which are siiminated due to
8 135 Pol71 -
the construc-..on of coltwms, accesp facilities and the like; (iii)
traffic control facilities are provided [including ht—. access' to'',..
adjacent public streets rr-farred to in the succeeding subparagraph b)}
by which use of the parking stricture rtay be-%ytically precluded to
the end that said users shall not surcharge parking capacity oZ
Vallco's parking areas; and (iv) Vallco shah[. Evve approved the plans
and rpPcirications for all of such i;aprovtul�nts insofar as they relate
to performance of these conditions, no portior_ of which improvements
!:except for lighting standards) shall e,c-eed fourteen (14) feet above
the bottom plane of the air rights casement hereby offered to ue
granted. Vallco hereby excepts and reserves all rights, title and
interest above the upper plane (i.e. twenty-si-v (26) feet above said
portion of Vallco•s real property) of the air rights easement an,
below the bottom plane of the subterranean easement hereinabove
offered.
bi A perpetual and exclusive easement for the use oR
srface cr said portion of Vallca's property shown shaded on Eiz
,. -: _ ,E ,
it B which is required fo acco d_t; ^^. of. verti -a3 movement '`
vehicles ana pedestrians and a non-t,xclusive easement for the :.
in common with others of the surface of Vallco's property which
from time to time is improved for rehicilar entrances, exits and
roadways in order to provide reasonably convenient access try the.
.w
most direct routes from Wolfe Road to said portion of-Valico's
property shown shaded on Exhibit B, provided that said easement
shall not affect those portions of Vallco's property which are.
not improved with vehicular entrances, exits or roadways.
Vallco and City recognize that it may become nece;z-
sary in the tuture that City acquire (without cost to the City)
fee ownership of a portion or portions of Vallco•e property she•«.
shaded on Exhibit B for the construction of public transit facili-
ties; provided ha -aver that the acquisition by City of such fee
interest is conditioned upon the requirements for surface parking
space to serve the shopping center being
B M FO
result of the construction of such public transit facIV Le% and
that, for such reason, the shopping center will not be adversely
affected by City's acquisition of such fee ownership.
As and when City shall elect to accept the fore-
going offer to grant said easements, and if any requested vacation
or abandonment pursuant to Paragraph 2c) below has been accomplished,
V-'.lco shall, pursuant to a written ag.eemer_t incorporatinq the fore-
going provisions of this paragraph, grant said easements to City.
2. City hereby grants to lallco "or the benefit of, and
appurtenant to, and running with the land in favor of, the real
property owned by Vallco which is described in Exhibit A attached
hereto and by this reference incorporated herein:
a) The perpetual and exclusive easement to construct,
to maintain in place, and to maintain, repair, replace, reconstruct }�_
ai,d to use buildings, structures and improvements: (i) above a plane :
fifteen (15) feet above the hig%est point of t.%e travelled surface
of Wolfe Road, crossing Wolfe Road, a dedicated pnbli.c'street, in
the location shown on Exhibit B attached hereto and by this reference
incorporated hereto, and (ii) above a plane fifteen' (15) feet above
the highest point of the travelled surface- of Vallco- Parkway, cross €ry
inv Vallco Parkway, a dedicated public street, in the location shown
on Exhibit B; together with perpetual and exclusive easements for the :.:75
construction, maintenance in place, and maintenance, repair, replace-
x
ment, reconstruction and fuse of columns, supports, footings, and
foundations for said buildings, structures and improvements to be
located in and above the public rights of way of each of said dedica-
ted streets, except that such columns, supports, .00tings and founds -
Mons may not be located upon or within the median strip of Vallco
B 135 ?A- X73
Parkway or within the travelled surface of either of said.dedicated
streets.
b) The perpetual and exclusive easement to construct,
to maintain in place, and to maintain, repair, repla:.e, reconstruct
and use a vehicular tunnel and appurtenances thereto not in excess
of seventy (70) feet in width to be constructed within the area
shown on Exhibit B; provided however that to the extenj_ that such
tunnel or any portion thereof may be proposed to be constructed
within the I-280 right of way, this grant is subject to City's
obtaining of consents to such grant from the State of California
and the Department of Transportati•)n of the United States of
America. City agrees to use all reasonable diligence to obtain
such consents, the parties hereby mutually recognizing the desir-
ability of constructing such tunnel within the most northerly
portion of said area.
c) The 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 the City, if requested by Vallco to do so.
3. At the request of either party the parties shall
join in the execution of a recordable instrument supplementing
this Agreement so as to describe with particularity the area
with respect to which the easements granted herein are respec-
tively located to the extent that such easements are not described
particularly in the Exhibits hereto.
4. This Agreement shall bind and benefit tre parties
hereto emd their respective successors, successors in interest
and assigns.
5. All notices and other communications given here-
under by either party to the other shall be in writing and shall
be deemed given when availed, postage prepaid, by certified or
4
! 11 Ar
YAJ17
registered mail, return receipt requested, addressed a�7fcrllowal
If to City
City of Cupertino
City Hall
Cupertino, California 95014
If to Vallco:
Vallco Park, Ltd.
P. O. Drawer V
Cupertino, California 95014
6. in the event that by reason of construction, settlement
or shifting, any part of the imprcvements shall encroach outside of
its easement area, Vallco and City shall each have, and City hereby
grants to Vallco and Vallco hereby grants to City, an easement for
the maintenance in place of such en.roachments.
7. The parties recogniz^ that adjustments or modifications
in the easements hereby grant -ed and created may be required or con-
venient to rea?iust, realign, relocate or refine the various ease-
ment areas, to reflect the actual building site conditions, to meet
then applicable requirements of federal, stake and local goverrunental
bodias or agencies or to provide for additional easements not Incon-
sistent herewith which are not presently eit:3er anticipated or capable
of being delineated. To provide contractually for any ouch modifica-
tions to the easements herein granted, or for.any future easements".
which may be required, the parties hereby covenant and agree to
execute any and all additional instruments, in recordable form upon
the request of either party which may be reasonably required in the
circumstances.
8. The parties acknowledge that there are no specific
remedies at law for a breach of this 'agreement and that the perfor-
mance of any unperformed obligation by any party may, at its option,
be compelled in an action for specific performance.
9. Upon the request of a party the other party will certify
promptly to the r -questing party, or to any proposed assiy:ee or
grantee or proposed or existing trustee or benefic-ary under a deed
5
B J..35 PA075"
of trust whether or not this Agreement is subsisting, whether or not
it has been modified (and if there are modifications, stating them),
and whether or not the party executing the certificate knows of any
default or breach by the oti::•r parry under any of the terms hereof
(and if any such breach or default exists, stating the nature thereof),
a failure by the requested party to furnish such certificate within
20 days after the making of such request being deemed an acknowledgment
that this Agreement is valid and subsisting, that the same has not been
amended or modified, and that there has been no default or breach by
the requesting party of the terms hereof.
10. In the exercise of the easements granted to them pursuant
to this Agreement, City and Vallco shall respectively indemnify and
hold harmless the other from and against all claims and all costs,
expenses and liabilities (including reasonable attorneys' fees and
court costs) incurred in connection with all claims, including any
action or proceedings brought thereon, arising from or as a result
of the death of, or any accident, injury, loss or damage wbatsoever
caused to any natural person, or to property, as shall occur by
virtue of its negligent act or omission, excluding from such indem-
nification any claims resulting from the negligence or willful act
or omission on the part of the party seeking to be indemnified.
11. City and Vallco shall respectively maintain, -r cause
to be maintained, in full force and erfeat, comprehensive public
liability insurance covering their respective easements and the
buildings, structures, and improvements thereon with a*financially
responsible insurance company or companies, including coy*prage for
any accident resulting in personal injury to or death of any person
and consequential damages arising therefrom, including comprehensive
property damage insurance, in the amount of $2,000,000 per occurrence
or such other amount as City and Vallco may from time to time agree
upon as being a prudent amount of insurance to be carried under all
relevant circumstances. Each party shall furnish to the other on
6
8 115PdCIl
or before the effecti�:e date of any such policy a certificate
',hereof stating that such insurance is in force and effect and
that the premiums therefor have been paid. The other party shall
be named as an additional insured under sucii policy or policies,
which shall provide that they may riot be cancelled without at
least ten days' prior writt.n notice being given by the insurer
to the other party. The insurance of each party shall expressly
inure u:e indemnification given by such party to the other pur-
suant to the preceding paragraph 10.
12. As additional consideration for City's execution and
performance of this Agreement, Vallco agrees to pay to the City the
following sums of money at the following times:
a) The sum of $33,500.00 on the first day of the month
following issucnce by City of a Certificate of occupancy for the
first to open of the department stores (except for the existing-
.
department store) on Vallco's property described in Exhibit A and-�u
a like sum on each of the succeeding 19 anniversaries of such day.
b) The sum of $33,500.00 on the first day. of, the month ' �.-` � --'
following issuance by City of a Certificate of Occupancy for the
second to open of the department stores (except for the existing
department store) on Vallco's property described in Exhibit A and
a like sum on each of the succedding 19 anniversaries of such day.
such sums shall be utilized by City in a manner
a<
as approved by the City Council to enhance the environmental quality
of the community. The City Council shall give priority to applica-
tion of said funds to environmental problems in the vicinity of
Vallco Park, but the decision of the City Council shall be final.
13. The parties agree that the easements granted by City
to Vallco and the offer to grant easements by Vallco to City are
equal in value.
7
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aJ 116, "Col -V
In Witness W;nereof, the parties Preto hay- executed this
Agreement as of the day and year first above written.
Attest:
City Clerk
CITY OF CUPER"INO, CALI'k-ORNIA
A. A A
By 1Z
Mayor, City of CupertAA
VALLCO PARR, STD.
By Its Three general Partners
1. vALLCO PARK, a California corp.
kale
B-urrel Leonard, esivent
Walter PWard c-retary ''
2. �.
Will N. Lester, General. Partner.
Ferrel nard, General a er _ ?' �_T
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135 mu378 .
STATE OF CALIFOR14IA )
COUNTY OF SA14TA CLARA )ss. lkit= '•K
On this day of fidv�` in the year/lq7g�be:ore m.-, the
under',igned, a JF�otary Public in and for sail county and state,
personally appeared Burrel Leonard, kncwn gsTS �Rtbe the President
and will W. Lester, known to me to be the /�ee went of Valown Pork,
the corporation that executed the within ins
we to be the persons who executed the within Instruxent on bet•alf
of said corporation, said corporation being knewn to P m thatto executed
be one
of the partners of Vall--o Park, Ltd., the partnership
the same as such partner and that such partnership executed the
same.
My commission expire:.:
cTATE OF CA�IFORNIL
COUNTY OF S.WTA CLARA
Not, • 'ubiic
On thisZA A-Z�� in the yearN7Aefore met the
_day of aid iti11 W. Lester
undersigned, a Notary Public personally apps
known to me to be one of the general partners of the partnership
that executed the within instrument and acknowledged to me that
such partnership executed the same.
,I r u lac
commission expires:
STATE OF CALIFORNIA
0-OUNTY OF SANTA CLARA
OMML an
M. 'T. KIINE
HOU XIr F:1" - CIs-SFOINIA
FtlNCIML OFM IN TME
COWRT OF SANTA CLARA
Rrr Q01 JISSION MUS AUGUST 7. 1"R
On this �� day of Ln-r�` in the year/,?74 befnre me,, the
undersigned, tary Public, personally appeared Burrel Leonard
known to me to be one of the general partners of the-part•nersh:p
that executed the within instrument and acknowledged to me that
such partnership executed the same.
My commission expires:
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8 135 =383
RESOLL'TiON !.0. 3759
A. RESOLUTION OF THE CITY COLitiCIL OF TIF CHV OF C FEr'TL'0
r1UTFORIZING, L•ICL•TION 0:• AGPEEHEIrrl BY LFXLC,O PARI:, LTD.
(l:F - AIR ^?CIiI S, SUBT I:PJd1.9EAN RIGHTS, p. KI?iC FACILI:IFS,
TRANSIT FACILITIES, PAY;fER'P .?F 11014-1:'Y FOR E1+ILVNCU[E14T OF
L�`VIRO:ti.�:T, PER CWDITIONS OF ArFROVAL, USE PERMIT
6-11-73 FOR Vi.-LCO Pri22k REGIONAL SHOPPING CEIrIER)
VIIEREAS, there has been presented to the CIL Council an agreement
between the City of Cupertino and Vallco Fark, Ltd.; and
WIFUk.0 S, the teras and conditions of the agreement have been approved
by the City Manager and the City Attorney;
IM, THEREFORE, BE IT RESOLVED that the Fi yor and the City Clerk are hereby
arrhorized to execute the agreement herein referred to in behalf of the City
of Cupertino.
PASSED ARD ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 8th day of October , 1974, by the following vote:, '
Vote Members of the City Council
AYES: Frolich, Y --,Pers, NeLls, Sparks
NOES: Jackson
ABSENT: None
ABSTAIN: Hone
APPRMM:
/s/ %red Sparks
Mayor, City of Cupertino
/s/ Ya. B. Ryder
City Clerk
A
THIS Is
INSTRUME F • COPY
Or THE C FFICE.
A 1EEM26 19
Crit CLE
Rkr i6 �`,�LIPERT:NO
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CITY CLERK
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