09. Vallco
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3308
FAX (408) 777-3333
F
CUPEIQ1NO
Community Development Department
SUMMARY
AGENDA NO.
AGENDA DATE October 18, 2005
SUBTECT:
Consider Application No. DA-2005-02, Mike Rohde (Valko Shopping Center),
10123 N. Wolfe Road, APN 316-20-064, regarding a Valko Development
Agreement Extension (five-year extension to 2011)
RECOMMENDATION:
The Planning Commission recommends that the City Council
)- Extend the term of the Development Agreement for three year to 2009
)- Require a Hotel Use for Future Development in the Northeast Portion of
the Property
BACKGROUND:
Valko Fashion Park and the City of Cupertino approved a Development
Agreement in July 1991. The Agreement will expire in August 2006. The
property owners seek to extend the Agreement for five years to complete
proposed development under the terms of the original agreement (see Exhibit
A). The Valko Development Agreement and amendments to it are included in
the packet (Exhibit B).
DISCUSSION:
The Development Agreement was approved to encourage the owners to invest
in redevelopment of the shopping center without being concerned about the
development regulations changing. The current Valko owners purchased the
property two years ago and have initiated ambitious plans to add a 16-screen
theater, Rosebowl mixed use, hotel, parking structures, retail shops and
residential uses.
Some of the key provisions of the Development Agreement are found in Exhibit
C. However, the focus of the Development Agreement amendment is the
extension and the requirement for a hotel use.
There are pros and cons to extending the Development Agreement. The pros are
that the extension would allow Valko a more realistic time period to implement
Printed on Recycled Paper
DA-2005-02
October 18, 2005
Page 2
currently planned center components under the terms of the current Agreement.
Should the Agreement expire in August 2006, Valko will have to arrange
financing, complete detailed plans, line up construction contractors and begin
substantial construction of the vested elements (such as constructing building
foundations) prior to expiration. Constructing building foundations for all the
vested elements (Rosebowl development, hotel, residential, retail shops and
parking structures) within the next nine months will be difficult. Also, the
extension needs to be timely because the extension will provide a more realistic
timetable for the revival of the shopping center, which has been the stated
interest of Cupertino's decision-makers and many residents for many years.
The cons of extending the Agreement are that the vested uses and development
regulations lock in housing densities, building heights, uses and locations of
buildings over which the City has no discretion, except for design review.
Staff believes that the importance of realizing a successful shopping center
warrants support for the extension. Previous property owners did not take the
initiative earlier in the term of the Development Agreement, and now current
property owners are taking the initiative as the Agreement is about to expire.
Some of the future projects, such as the hotel, will be helpful in providing the
critical mass for the increased vitality and financial security of the future of the
center.
Staff also raised the possibility of requiring hotel use for the area east of Wolfe
Road and south of 1-280. Staff believes that it is in the City's interest to make this
a requirement of the extension of the Development Agreement, to provide a
variety of uses and resources at the shopping center and for city revenues. The
applicant is agreeable to this requirement.
Public:
Six speakers raised the following issues:
)- Wait until after the election
)- Concerned about impacts of many projects approved or considered in this
area
)- Not able to publicly review projects vested in the Development
Agreement
)- Things have changed in 15 years
)- Wait for General Plan to see how this fits
)- Wants to know how does the Agreement relates to the Initiatives and
General Plan
)- Extend the Agreement only for the hotel tentative map
)- Do master plan
DA-2005-02
October 18, 2005
Page 4
The Planning Commission recommends a three-year extension. Chairperson
Wong stated that he supports a two-year extension.
Enclosures:
Model Ordinance #1969
Planning Commission Resolution #6327
Exhibit A - Letter from Applicant
Exhibit B - Development Agreement
Exhibit C - Key Provisions of the Development Agreement
Exhibit D - Recorded Agreement
Public Communication
Prepared by: Ciddy Wordell, City Planner
Approved by:
St iase 1
Director of Community Development
David W. Knapp
City Manager
G:planningl pdreportl eel CCDA-200S-02
DRAFT
ORDINANCE NO. 1969
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
MODIFYING A DEVELOPMENT AGREEMENT (I-DA-90) TO EXTEND
THE TERM OF THE AGREEMENT TO AUGUST 15, 2011 AND
TO REQUIRE A HOTEL USE FOR FUTURE DEVELOPMENT IN THE
NORTHEAST PORTION OF THE PROPERTY
WHEREAS, an application was received by the City (Application No. DA-2005-
02) for the modification of a development agreement (I-DA-90);
WHEREAS, the City Council finds that the subject Development Agreement
meets the following requirements:
Is consistent with the objectives, policies, general land uses and programs specified in the
General Plan and any applicable specific plan;
Is compatible with the uses authorized in, and the regulations prescribe for, the land use
district in which the real property is or will be located;
Is in conformity with and will promote public convenience, general welfare and good
land use practice;
Is not detrimental to the health, safety and general welfare;
I. Will not adversely affect the orderly development of property or preservation of
property values; and
Will promote and encourage the development of the proposed project by providing a
greater degree of requisite certainly.
WHEREAS, upon due notice and after one public hearing the Planning
Commission recommended to the City Council that the amendment be granted; and
NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS:
Section I. That section 1.2 Term of the development agreement described as l-DA-90 is
hereby amended to extend the term of the Development Agreement to August IS, 2009.
Section 2.6.5 Conditions with Regard to Hotel Site. Future development for the
approximately two acre site located at the northeast portion of the Property, currently
labeled "Proposed Sports Connection" in Exhibit B of the Agreement, shall be developed
for a minimum 100-room hotel and ancillary services. Should the Development
Agreement expire prior to development of the site for said hotel, another instrument
guaranteeing hotel development on the site shall be agreed upon by the applicant and the
City.
Ordinance No. 1969
2
Section 2. This ordinance shall take effect and be in force thirty (30) days after its
passage.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 18th day of October 2005 and ENACTED at a regular meeting of the City Council of
the City of Cupertino the _ day of _ 2005, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
A TIEST:
APPROVED:
Mayor of Cupertino
City Clerk
·
LANDMARK
PROPERTIES
MANAGEMENT
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EXHIBIT A
SEP 0 II W05
BY:
September 8, 2005
Mr. Steve Piasecki
Community Development
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3232
Dear Mr. Piasecki:
This letter is a request to amend the Vallco Development Agreement and extend the term
for an additional five (5) years. The Development agreement, originally approved in
1991, is due to expire in August 2006. The amendments are sought to complete the
development of a 16 screen AMC multi-plex cinema, mixed residential and commercial
on the "Rose Bowl" site located south of Vall co Parkway; residential condominiums and
a parking garage north of Macy' s; a hotel next to Highway 280 north of JC Penney's; and
retail shops and a parking garage adjacent to JC Penney's under the terms of the original
agreement.
The Cupertino Planning Commission is tentatively scheduled to consider this application
on Tuesday, October 11, 2005 in the Cupertino Community Hall beginning at 6:45 PM.
Sincerely,
/)1¡¡t~ ~
Mike Rohde
General Manager
MRJdlh
Vanco Fashion Park
10123 North Wolfe Road
Suite 2030
Cupertino, California
95014
408.777.3081
Fax 408.725.0370
wwwvallcomall,com
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P..eturn to:
(LV OF CUPERTINO
1 31J Terre Avenue
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DEVELOPIIEII'l' AGREEMENT
BY AND BETWEEN
THE CITY OF CUPERTINO
AND WESTLAND PROPERTIES, INC. AND
WESTLAND SHOPPING CENTER L.P.
RELATIVE 'l'O THE DEVELOPIIEN'l' KNOWN AS
VALLeO FASHION PARK CENTER
11468098
NO FEE ü1
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EXHIBIT B
11468098
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11291PAGEI980 "
DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
RECITALS ........ 1
AGREEMENT . . . . . . . . 7
1. General Provisions 7
1.1 Covenants. 7
1.2 Term 7
1.3 Amendment. 7
2. General Development 9
2.1 Dev.lopment and control of Development 9
2.2 vested Elements. . . . . . . . . 9
2.2.1 Location of Development . . . . . . . . 11
2.3 Condition. with Regard to the Ice Rink Facility.. 12
2.4 Conditions with R.gard to Bu. and Tran.it Facilities 14
2.5 Conditions with Regard to Child Care Facilities 16
2.6 Condition. with Regard to the Ma.ter U.e Permit 17
2.6.1 Cinema Complex Next to Sear. Store. . . .. 18
2.6.2 Building of Cinema on We.t.ide site . . .' 18
2.6.3 Building of Cinema on Ea.t.ide site . . .. 19
2.6.4 Condition. with Regard to single U.er Space 20
2.7 Grant of Easements . . . . . . . . . . . . . 21
2.7.1 Con.ideration for Ea.em.nt . . . . . . 21
2.7.2 We.tland'. Obligation to B.gin Payment 23
2.7.3 Annual Payment . . . . . . . . . . . . 24
2.8 Rules, Regulations and Official policies 25
2.8.1 Subject to Standard. of G.neral Plan. . . 25
2.8.2 Section Shall Not pr.clude Changes in Laws or
Regulations ............. 26
2.8.3 Right to City to Rsquire the proces.ing of
Building Permits . . . . . . . . . . . . 26
2.8.4 Applications Shall be Subject to the Development
and Processing Fses . Taxe. .... 28
2.8.5 Permit. Shall Apply As of Time Permit is
Granted .............. 29
2.8.6 preclude. Any Future Building Moratorium 31
2.8.7 city shall cooperate in E.tablishing
As.es.ment Dist., I.suing Bond. 32
2.9 Con.truction Pha.ing for New parking . 32
2.10 Development of .Non-R.sidential U...· . 33
2.10.1 Re.idential Development. . . . 34
2.10.2 conv.rsion of Exi.ting Spac. to Non-Retail 37
2.10.3 Modification of the In-Li.u Fee 39
2.10.4 Adjustment Threshold . . . . . 40
2.11 Condition. with Regard to Hou.ing Mitigation 41
2.11.1 Affordable Hou.ing within Shopping Center 41
2.11.2 Affordable Hou.ing Within city .. . . . 42
2.11.3 Payment of One Time F.. . . . . . . . . .. 42
2.11.4 Participation in Hou.ing Mitigation program 43
2.11.5 Mutually Accepted Alternative Housing
Mit!.gation Measures . . . . . . . . 44
2.11.6 Administration of Housing Mitigation 44
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3. Default, Remedies, Termination 46
3.1 General Provisions 46
3.2 Annual Review . . . . . . 47
3.3 Default by city . . . .. .... 48
3.4 Enforced Delay, Extension of Time of Performance 48
3.5 Leqal Action. . . . . . . 49
3.6 Applicable Law . . . . . . 49
4. Hold Harmless Aqreement . . . . 49
5. No Joint Venture or Partnership 50
6. cooperation-Implementation 50
6.1 Processing. . . . . . . . 50
6.2 other Governmental Permits 50
7. cooperation in the Event of Leqal Challenqe 51
8. Mortqaqe Protection; certain Riqhts of cure 51
8.1 Mortqaqe Protection . . . . . 51
8.2 Mortqaqee Not obliqated 52
8.3 Notice of Default to Mortqaqee 52
9. General.............. 53
9.1 Enforceability of Aqreement 53
9.2 Validity of parts of Aqreement 53
9.3 Execution . . . . . . 53
10. CPI. . . . . . . . . . . . 53
11. Assiqnment ....... 54
12. Bankruptcy or Receivership 55
13. Notices. . . 55
14. Arbitration. 56
15. Counterparts 59
ddtlns
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M291P:GE 1982
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DEVELOPJIEII'l' AGREEIŒIIT
BY AIID BBTWZEII
TIΠCITY OP CCPER'l'INO
AND WZSTt.A!ID PROPER'l'IES, INC. AND
WZSTLAND SHOPPING cEII'l'ER L.P.
RELATIVE TO TIΠDEVELOPMENT IQIOWN AS
VALLCO PASHION PARlC CENTER
THIS DEVELOPMENT AGREI!IŒIIT ("Agreuumt:") is ent:ered int:o t:his
15th day ot Auqust:, 1991 (the "Ettect:ive nat:e") , by and bet:ween
WESTLAND PROPERTIES, INC., a Delaware corporat:ion and WESTLAND
SHOPPING CENTER L.P., a Calitornia limit:ad partnership (collee-
t:ively "West:land"), and THE CITY OP CCPER'l'INO, a municipal eor-
porat:ion ("Cit:y").
RECITALS
A. Th. Legis1at:ur. ot the stat:e ot calitornia adopt:.d
secdon 65864 ß u.s¡. ot the Government: COde (the "D.velopment
Aqreement: St:at:ut:."), which authorize. cit:y t:o .nt:er int:o a
property development: aqr.....nt:. Th. cit:y has adopt:.d Ordinance
No. 1256 (part) ..t:ting torth requireaent:s and proc.dures tor
development: aqr.ement:. with cit:y ("Devel.-"aent: Agreement: Ordi-
nance").
B. w.st:land has a l.qal or equitable int:er.st in that r.al
property out:lined in P.xhibit: "A-l" (the "Property") which is a
portion ot the Valleo pa.hion park Shoppinq Centar (the "Shoppinq
c.nt.r") which is out:lined in P.xhibit "A-Z", and that: r.al pro-
perty outlined in P.xhibit: "A-1" d.siqnat:ed as the "Rose Bowl" and
is a "Qualitied Applicant:" a. detined in Sect:ion 20.12.0l0(H) ot
the Development: Agr.ement: Ordinanc..
C. On July 16, 1974, the Cit:y Council approved Application
6-U-73, which provided tor the development ot 1,028,426 net
rentable equare teet: ot retailing space, including store st:ock
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room apace at the Shopping Center. Application 6-U-73 waa amended
purauant to Application 7-U-76 by the city council on May 17, 1976
to 1,020,000 net rentable &qUare teet ot retailing apace,
including store atook room apace at the Shopping Center. To date,
not allot thia allocation haa been uaed.
D. Under both the prior and current zoning regulations, the
Rose Bowl may be developed with ottice buildings with a Yloor Area
Ratio C"Y.A.R.") ot .37 or with commercial buildinga with a F.A.R.
ot .25.
E. On December 5, 1983, the city Council adopted Ordinance
No. 1250, approving an amendment to zoning application 1-Z-83
establishing a planned Development which waa conaiatent with
city'a amended General plan and which included the Shopping Center
and Rose Bowl. The amendment eatabliahed permitted land use types
and intenaity, a.. deaign atanciarda, eatabliahed conditions ot
development applicable to the Shopping canter and Roae Bowl,
authorized commercial building space ot 300,000 square teet in
addition to the 1,020,000 aquare teet approved tor the Shopping
Center and the approximately 65,100 aquare teet svailable tor
development ot the Rose Bowl. The approval. tor the 300,000
aquare teet and 65,100 aquare teet ot building apace tor develop-
ment pertain e>:clusively to the Property and the "Rose Bowl" or
such other area. ot the Shopping canter a. waatland may deem
appropriate. Theae approvals and development policiea ere reter-
red to aa the "Exiating Approvala."
F. On July 1, 1991, the city council approved the tOllowing
Applications:
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(i) G.n.r.l Pl.n Am.ndment 2 - GPA-89 by a..olution No.
8251. G.n.r.l Pl.n Aaendment 2 - GPA-89 incr....4 the 4..ignat.4
developm.nt c.pacity ot the Shopping c.nt.r by .44ing 260,000
square t.et ot .dditional net rentable aqu.re t..t. Taken
together with the .xi.ting .v.ilabl. bui14ing cap.city under
Existing Approval., the Amendment provid.s tor 535,000 square teet
of future development in the Property and the Roa. Bowl or such
other .reas ot the Shopping center .s w.stland may d.em appropri-
ate, tor a total build-out of net rentable .pace, lncludinq store
stock room apac., of 1,645,700 square f.at;
(ii) Application 7-Z-90, by ordinanc. No. 1539.
Applic.tion 7-Z-90 provides tor r.zoning ot the Ros. Bowl to P(CG,
ML, ottic., Hotel, R.gional Shopping) Intent to .chi.v.
consistency with the zoning tor th. remainder ot the Shopping
center. However, the P(CG, MI., Office, Hotel, Reqlonal Shopping)
designation tor the Ro.e Bowl .hall ret.in the ottice, indu.tri.l
us. option .nd the hotel ue. option .v.ilabl. und.r the prior
planned dev.lopment zoning tor the Rose Bowl p.rcel. Subj.ct to
the terms ot this Agreement, Westland, in it. .01. discr.tion, may
d.veloP the Ro.. Bowl conaiat.nt with the P (Region.l Shopping)
Intent zoning applicabl. to the remainder ot the Shopping Center,
or Westland may develop the Rosa Bowl for offic., industrial use
or hotel uee, .. ..t torth in the General Plan, th. v.ste4
Element. .nd thia Agreement.
(iii) Application No. 9-U-90, Application 9-U-90 which
links the .dditional 260,000 aquare t..t ot n.t r.nt.bl. squ.re
teet cap.city .pprove4 pursuant to Gener.l Plan Alllendment 2-GPA-89
to the terms ot th~ existing Master Us. permit tor the Shopping
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Center, epprovee develop..nt ot e cine.. complex eubject to the
conditione more tully deecribed in the approved ApplIcation 9-U-90
and in section 2.6 herainbelow, and aleo moditiee provi.ion. ot
the exieting Meeter u.e permit, a. etated in Application 9-U-90
(the exieting Maeter Uee permit, ae moditied by Application 9-U-90
is hereinafter referred to aa the -Master U.. PermitM).
(iv) Application No.'e ASAC 51,908.1 and ASAC 51,908.2
eetting torth revieed eignage criteria tor the ShOpping center and
authorizing weetland to conatruct a pylon eign(e) in accordance
with conditione eet torth therein. Applicatione ASAC 51,908.1 and
ASAC 51,908.2 are hereinatter collectively reterred to ae the
"ASAC APplicatione".
These approvals and development policiee are reterred to as
the "project Approvals" and pertain exclueively to the Property
and the "Rose Bowl" or such other areas ot the Shopping center as
westland may deem appropriate.
G. The improv..ente allowed pureuant to the EXieting
Approvale and the project Approvale are referred to collectively
as the -Project.-
H. The Project and the Project Approvale were subject to an
Initial study ae required by the Calitornia Environmental Quality
Act and were to\,nd to have no e1gn1ticant environmental impact.
On July I, 1991, the City Council granted a Negative Declaration
for the Project and the Project Approvale.
I. Weetland and City have det:erllined that the Project 1e a
development tor which this Agre..ent 1e appropriate in order to
achieve the goale and objectivee ot the City'e land uee planning
pol1ciee including the ..intenance ot the current ice rink located
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at the Shopping Center and to provide appropriate aeeurances to
w.stland regarding ite ability to ~o.pl.t. the proj.ct. Thi.
Agr.e..nt will .li.inat. unc.rtainty in planning for and s.curing
orderly dev.lop.ent of the proj.ct. assur. progr..siv. installa-
tion of nec..aary improvement., provide for public .arvic..
appropriate to each stag. of dev.lopment of the Proj.ct. insure
attainment of the maximum effective utilization of re.ources
within city at the l.ast econo.ic cost to its citiz.ns. and
oth.rwise achieve the g~als and purpos.s for which the D.velop.ent
Agr...ent Statute was .nacted. In .xchang. for th.s. ben.fits to
city, Westland desires to receive the assurance that it may
proceed with the Project in accordance with the axistinq General
Plan, ordinance., re.olutions and regulations, subject to the
terms and conditions contained in this Agr....nt. in order to
implement the intent of the city in enacting the Dev.lopment
Agreement Ordinanc..
J. City has found and d.terMin.d that .x.cution of this
Agreement is in the be.t inter..t. of the public health, .afety
and g.n.ral welfare and that the provi.ions of thi. Agr....nt are
consist.nt with the Gen.ral Plan and provide balanc.d and
diversified land use. in order to maintain the ov.rall quality of
life and of the .nvironment within the City. Th. city beli.v.s
that the orderly d.v.lopment of the Proj.ct will provide many
public ben.fits to city through the collection of incr.as.d tax
revenue. re.ulting in fi.cal benefit. to City. con.truction of
beneficial urban in-fill betw..n alr.ady dev.loped properti.s at a
location serviced by major local thoroughfare. and reqional trans-
portation .y.t.... and the creation of job opportunities through
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the con.truction and develop..nt ot the Project and the location
of bu. in..... th.r.in, .. w.ll a. the maint.nanc. of the pr...nt
ic. rink locat.d at the Shopping C.nt.r which .erv.. unique r.cre-
ational need. within the city.
K. On July 1, 1991, aftar due review of and report on
W..tland'. application for this Agr.ement by all concerned city
aqencie. and departments, and consideration ot all other evidence
heard and submitted at a duly noticed public h.aring pursuant to
the D.v.lopmsnt Agr....nt Ordinance, the city council found and
determined that the Partie. have complied with all requirements
reqardinq their .ntry into this Aqr....nt and that this Aqr.ement
is conaistent with the objectiv.., poliei.., general plan us.. and
programs .pecified in the G.n.ral Plan and the Exi.ting Approval.;
it i. compatibl. with the u... authoriz.d in and regulation.
prescribed for the land us. dist~ict in which the proj.ct is
locat.d; i. in conformity with and will promote public
conv.ni.nc., g.n.ral w.lfar. and good land u.. practic..; will not
be d.trim.ntal to the health, .afety and general w.lfar. of the
city or the region. .urrounding the city; will not adv.r..ly
affect the orderly d.v.lopm.nt of property or the pr.servation of
property valu.s within th. city and will promote the .am.; and
will promote and .ncouraqe the d.velopment ot the project by
providinq a qr.atar degr.. ot requi.it. c.rtainty with r.sp.ct
ther.to.
L. Th.r.att.r, on July 15, 1991, the City Council adopted
Ordinance No. 1540 (th. "Enacting ordinanc.") enactinq this
Aqreement as it. 1.gislativ. act and .uch ordinance becam. .ttec-
tiv. AUgust 15, 1991.
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1GRP.:1I'X1mT
1. GenerAl proviøions.
1.1 cov.nants. This Agr....nt is intended to be a
cov.nant which run. with the Property and the Ro.. Bowl and the
burd.ns and ben.tits ot the A<¡r......nt .hall bind and inure to the
benetit ot all .ucc...or. in inter..t to the parti...
1.2 :l:§DI. Th. t.... ot this A< r....nt (·T....·) shall
commence upon the Effectiv. oat. ot this Agr....nt, which is the
s.... as the .tt.ctiv. date ot the Enacting Ordinanc. (provid.d
that in no .v.nt .hall the Ett.ctiv. oat. be earli.r than thirty
(30) days tro. the date G.neral Plan Am.ndment 2-GPA-89 beco..s
ettectiv.) and shall co:.~;nu. tor at.... ot titt..n (15) y.ar.,
unl.ss t....inat.d, .oditi.d or .xt.nd.d a. ..t torth in this
Agr....nt or by the .utual agr....nt ot the part i.. h.r.to. Upon
expiration of the Term, or the earlier termination of this Agree-
ment, this Agreement sball be of no further force or effect,
provid.d, how.v.r, t....ination shall not ettect the right. ot
W.stland which may ari.. tro. .ntitlement. or approvals tor
dev.lop..nt ot the 5hoppill9 c.nter which were approved prior to,
concurr.nt with or .uI>..quent to the approval ot this A< r....nt.
1.3 AmAndm.An~. This Ac)re...n't may be amended from. time
to ti.e by .utual consent ot the parti.s in accordanc. with the
provisions ot the city's D.v.lopment A< r....nt Ordinanc.. w..t-
land shall have the right tu apply tor aoditication~ and/or
....ndments to this Agr....nt sul>j.ct to the expr.ss writt.n
approval of city. Such application ahall riot be 4__d . waiver
ot any tara or provi.ion ot this A< r....nt unl... .0 .tat.d in the
application.
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ì1291PnGE 1989
1.3.1 Upon the written request ot Westland tor a
minor amendment or modification to the Master U.. permit, o..ign
Objectives Narrative (a copy ot which is attached hereto as
Accendix I), the Project Development Hap, or this Aqreement,
inclUdinq but not limited to, (a) the location ot buildinqs and
other physical tacilities, (b) conditions ot operation ot the
Shoppinq center, or (c) the design or contiquration ot the
project, the Director ot community Development shall determine
whether the requested amendment or moditication is coneistent with
this Aqreement, the General Plan and applicable provieions ot the
project Approvals. Por purposes ot this Agreement, the determina-
tion ot whether such amendment or moditication is minor shall
refer to whether the amendment or moditication is minor in context
ot the overall Shoppinq Center. Upon receipt ot a written request
tor a minor moditication or amendment trom Westland, the Director
ot community Development shall (i) approve the proposed amendment
without notice and public hearinq, it the Director tinde that the
proposed amendment is both minor and consistent with this Aqree-
ment, the General plan and the Project approvale, or (11) disap-
prove (in writinq, with an explanation ot the basis tor
disapproval) the proposed amendment it the Director tinds that the
proposed amendment is not minor or consistent with this Aqreement,
the General Plan and the Project Approvals, in which case Westland
may reter such disapproval to the city council tor reconsidera-
tion, or (iii) the Director may independently reter such proposed
amendment directly to the City Council. It the city council tinds
that the proposed amendment is both minor and consistent with this
Agreement, the General plan, and the Project Approvals. the city
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1\291P~GE 1990
council may approve the propoaed amendment without notic. and
public hearing. In the event the propo.ed amendment ia aubmitted
to the city council. either upon referral by Westland or by direct
referral by the Director. the approval of the city council for
such proposed amendment or modification ahall not be unreasonably
withheld or delayed. For purpoaea of this Agreement, any amend-
ments or modifications which are treated as minor amendments or
modifications a. described in the Kaster Use Permit shall be
deemed minor amendments or modifications hereunder. Amendments or
modifications approved purauant to this paragraph 1.3.1 shall not
con.titute .ubaequent di.cretionary approval. .ubject to further
CEQA review.
2. General Develonment.
2.1 Develonment: and Cont:rol o~ neveloml'l.ent. w..tland
shall be permitted to develop the Project and city ahall approve
the development of the Project in accordance with this Agreement.
2.2 Vested Elements. The permitted ueea of the
property. the "Roae Bowl" or auch areaa of the Shopping Center as
Westland may deem appropriate from time to time. the denaity and
intenaity of use, the maximum height and .ize of the propoaed
building.. existing code. and other provie1ona for reservation or
dedication of land tor public purpoaea, traffic mitigation
measures and provisions tor public improvements, and other terms
and conditiona of development applicable to the Property, the
"Rose BoWl" or auch other areaa of the Shopping Canter ae Weatland
may deem appropriate. as aet torth in:
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..
1\ 2 9 7 Pro GE I 99 I
(a) The ceneral plan for commercial, office and
hotel designation as of the date of the Enacting
Ordinanc. for this Agr....ntl and
(b) Th. "Existing Approvals" and the "Proj.ct
APprovals" as .at forth hereinabove; and
(c) Application 24-U-871 which pr.viously approved
construction of a parking deck on the portion of the
Shopping Center sp.cified therein.
are hereby incorporated herein and are vested subject to the
provisions of this Aqr.e.ent (the "v.st.d Elements").
In the ev.nt W.stland sl.cts, in its sol. discr.tion, to
develop the Proj.ct on ar.as or portions of the Shopping Center
other than the Property or the Rose Bowl, then westland may
allocate its rights under this Agreement to such property without
the consent of city, provided that the d.v.lopment of the project
on such property shall be expre..ly subject to the terma and
conditions of this Agr.ement reqardinq the construction, d.sign,
mat.rials, maxi.WI beight and siz. of the proposed buildings
(including provisions wbich r.lat. to said issu.s in th. Project
Approvals, P.xhibit B, ADDSndix I and ADDendix II attach.d hereto
and incorporat.d b.r.in) and furth.r provided that W.stland or its
successor shall ~emain obligated by the t.rms of tbis Aqree.ent.
In addition, Westland aqr.es that, except as otherwise provided
herein, any develop.ent of the Project on any portion of the
Sbopping center other than the Property or Ros. Bowl will be
generally consistent with the Definitiv. Dev.lopment plan s.t
forth in Application 7-Z-90.
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H 2 9 7 p~ GE I 992
2.2.1 Lgeation of DAvAlonment. In the event
Westland wishes to develop a portion of the Project in an area of
the ShoPpin9 center other than tho.. areas ot the Shoppinq Center
which are desiqnated on the Shoppinq center map attached hereto as
Exhibit "8" and incorporat.ad herein ("Project Development Map"),
as areas of "approved future development" for the project, any
development of the Project outside of those areas shall be subject
to the terms and conditions of this Aqreement and the Vested
Elements. In addition, any such development outside the areas
desiqna~ed for "approved future development" on Exhibit "8" shall
be sUbject to separate use permit review procedure by city. city
acknowledqes that development of the project in areas not shown on
the Project Development Map involve only a chanqe in location and
desiqn from the construction of net rentable square footaqe
approved under the vested Elements and is not additional develop-
ment. Therefore, city'. use permit review procedure shall not,
except as expresslY set forth berein, require any additional
payments (other than payment of standard fees for sucb use permit
application), exactions or impact fees fram Westland as a condi-
tion of approval. Notwithstandinq the foreqoinq, city may impose
additio~al impact fees or exactions as specific mitiqation
measures which are conditions of approval of such use permit
application, provided that such impact fee or exaction sball only
be imposed to mitiqate a specific, identifiable impact arisinq
directly as a result of that portion of the development wbich is
in a new location outside the approv~J areas sbown in Exhibit "8",
and provided further, that Westland is unable or bas elected not
to exercise its riqbt to cure Or mitiqate sucb specific impact
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H 2 9 1Pr. GE I 993
through independent mitigation measurss to te impl..snted by
Westland, with the prior approval ot city ~wh~ch approval ahall
not be unr.asonably withh.ld or d.lay.d). city shall provide
assurance to Westland that the impact fee or exaction payment paid
by Westland will only be used to mitigat. the sp.cific impact for
which the te. or exaction was imposed. It city taila to 80 us.
such impact fee or exaction payment. a. required by the current
provisions of Government Code 56600 at. seq., then the tee or
exaction will be refund.d to Westland, with interest, a. provided
in the current provi.ions of Gov.rnment Cod. 56601. Th. restric-
tions on city's u.. of such impact te. or exaction payments .et
forth herein shall continue in ettect, notwithatandinq any future
chanq.. or repeal of Government Code 56600 at aeq. Except.s
allowed above, city may not impose any additional impact fee.,
exactions or charges as a condition of approval of such use permit
application.
All parking .tructure. which are shown on Exhibit '8' hereto
in the ar.a. designat.d a. ·ar..... for future parking .tructure.·
shall be d......d to be included within the t.rm ·Proj.ct· as u..d
in this Agre..ent. All provi.ion. in this Agre......nt regarding
approval., timing and application of the v.sted Element.
pertaining to the Proj.ct shall be consid.red to apply .qually to
parking structures to be constructed at the reque.t of w.stland.
Any development of the Project or of the Shopping c.nter pursuant
to the t.rms of Vested Element. or this Agr....nt shall be subject
to the Parking Ratio s.t forth in S.ction 2.9 h.r.in.
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.
1t291PHEI994
Westland's failure to develop the project .hall not result in
liability to Westland except as may otherwi.e re.ult from a
failure to comply with Sections 2.3, 2.4 or 2.5.
2.3 conditions with RAaArd to the Yee Rink Pøcilitv.
Westland agrees to operate and maintain, or cau.e to be operated
and maintained, the ice rink facility within the city of cupertino
at no co
to the city in a physical condition which equals, or is
superior to, the physical condition ot the pre.ent iC8 rink
facility. In the event that Westland complete. construction of
and receives a Certificate of occupancy for expansion of at least
100,000 square teet ot new net rentable .pace during ~.e Term of
this Agreement, .then the continued operation of the ice rink shall
become a permanent condition of operation of the Shopping center
under the Master Use permit. If We.tland doe. not complete
construction of, and receive a certificate of occupancy tor,
expansion of at least 100,000 square teet of new net rentable
space during the term of this Agreement, then Westland shall only
be obligated to continue maintenance and operation of the ice rink
during the Term of this Agreement. Westland may elect in the
future, in its sole and absolute di.cretion, to close the entire
Shopping Center, and if We.tland doe. .0 elect, thi. Agreement
shall terminate and Westland shall be released from any obligation
under this Agreement or the Master user Permit to continue to
operate the ice rink as well as its obligations under paragraphs
2.4 and 2.5 herein. Further, nothing herein .hell be cSøemed to
prohibit Westland from operating the ice rink facility at a profit
and city shall have no control over westland's operation of such
facility other than as expressly .et forth in thi. Agr...ent.
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11291 PA GE I 995
westland agreee that. . ~bject to the foregoing, it will use good
faith effort., to operate and maintain, or eau.. to be operated
and maintain.d, the ic. rink facility in a mann.r which do.s not
unreasonably restrict public access to the ic. rink facility.
city agrees to cooperate with Westland in processing any applica-
tions for expansion, alterations or improvements to the ice rink
facility snd/or it. ancillary us.., provid.d city .hall not be
required to contribute any money to such expansion. city further
agrees that the net rentable square footag_ occupied by the ice
rink facility and any ancillary u.e. appurtenant thereto,
including any .xpan.ion of the ice rink or its ancillary u....
shall be excluded from calculation of the floor are. allocation of
the 1,645,700 net rentable square teat authorized under 2-GPA 89.
2.4 Conditiona with ReaArd to PArk And RidA And TrAnsit
Facilities. At the request of the santa Clara county
Transportation Agency (-S.C.C.T.A.-), We.tland agr... to enter
into an agr..m.nt with S.C.C.T.A. to ..tabli.h parking .pac.. for
a shared use park and ride parking area suitable for up to
s.venty-fiv. (75) .pac.. (·Park and Rid. Agr....nt·). Th. .har.d
use park and rid. ar.a shall be located in a .ingl. location in
the Shopping center parking area. within anyone of the following
location.. d.termined in W.stfi.ld's discr.tion: (i) within 750
feet of any bc~ turnout location (.ither currently exi.ting or
which may be built) on eithsr the westerly or easterly sids of
Wolte Road and .outh of Vallce Parkway, or (11) .uch othsr loca-
tion as may be agreed betw.en Weetland and S.C.C.T.A. In the
event Westland completes construction of, and rec.ive. a Certifi-
cate of occupancy for. expansion of at least 100.000 .quare feet
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H 2 9 1PHE I 996
of new n.t rentable apace during the T.~ of thi. Aqr....nt, then
op.ration ot the park and rid. t.cility .hall become a perman.nt
condition ot operation ot the Shopping Cent.r und.r the xa.t.r u..
permit, unles. the park and Rid. Agr....nt is terminated by the
mutual consent of S.e.C.T.A. and w..tland. It Westland do.. not
complete construction ot, and receive a Certiticate ot occupancy
for, expansion ot at least 100,000 aquare teet ot new net rentable
space during the Term ot this Agr.ement. th.n Westland shall only
be obligated to allow operation ot the park and rid. tacility
during the T.rm ot this Agr....nt. unless the Park and Rid. Agree-
ment is earlier terminated by the mutual consent ot S.C.C.T.A. and
Westland. The spac.. de.ignated for park and ride u.. shall be
included as available Shopping Center parking spaces tor purposes
ot determining the Shopping Center's compliance with applicable
parking ratio requir.ments and w.stland shall not be r.quir.d to
provide additional parking space. to compensate tor the .paces
designated tor park and ride use. The park and ride spac.s shall
be designated as such upon a weekday and non-public holiday only
bads. The Park and Rid. Agreement shall provide that the park
and ride spaces shall be available exclusively tor parking by
commuters during the 6:00 a... to 9:00 a... time period. After
9:00 a.m. the park and rid. spaces shall be equally available to
oath commuters and non-commuter Sbopplnq Center users on a first
come Urst served bads. The park and Ride Agreement shall
provide that S.C.C.T.A., city or another appropriate agency or
authority shall be responsible tor liability, maintenance and any
other matters directly related to ths operation ot the shared use
park and ride.
-15-
..
H 2 9 7 pn GE I 997
City agreee that in the event city wiehes to construct new
bus stops, located on the easterly and we.terly .1d.. ot wolte
Road between Vallco ParkWay and stevens creek Bouleverd, city
shall construct such bus stops entirely within the current Walt.
Road right ot way and w.stland shall have no obligation to d.di-
cate or transt.r any portion ot the Shopping cent.r to city in
conn.ction with such bus stops. W.stland shall have no obligation
to pay any amount to city to acquire any additional property
nece..ary to construct such bu. atop., except aa expre..ly set
torth in this Agreement.
This s.ction 2.4 and s.ction 2.7 sets torth allot w.stland's
obligations with regard to bus transt.r or oth.r transportation
tacilities or programs and upon satistaction ot the obligations
set torth h.rein, W.stland shall have no turther obligations
conc.rning bus transter or other transportation tacilities or
programs under the Exiatinq Approval., the Project Approvals or
any other approvals or consents granted in the future pursuant to
this Agreement.
2.5 conditionø with Reoard to Child Car. paeilities.
Westland and city agree that Westland shall continue to ....intain
or operate, or cause to be ....intained or operated a child care
tacility within the Shopping center during the term ot this
Agr.....nt. NotwIthstanding such agre8lll8J\t, wutland agrees that
in the .v.nt city adopts and implements a city_ide child care
plan or policy applicabl. to new d.velopments, wsstland shall
eith.r, (i) pa~icipate in such plan or policy, with Westland's
parti~ipation in such plan or policy being based upon the 260,000
square , ,.t Qt additional gro.. leasable erea authorized by
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M291PAGE 1998
General Plan Amendaent 2-GPA-89; or (ii) We.tland may elect, in
lieu ot euch participation, to continue to operate and maintain or
cause to be operated and maintained, at We.tland'. di.cretion, the
child care tacility currently located in the Shoppinq Center, or a
similar type operation ot a similar aize (beeed on the number ot
net rentable equare teet occupied by the tacility currently
located in the Shoppinq Center), tor the remaininq Term ot this
Aqreement, provided however, thia obliqation eball terminate it
Westland is unable to obtain, deapite rea.onable ettorta, a tenant
who is a qualitied, licensed operator to operate auch child care
tacility in compliance with all applicable requlationa and
requiremente. In either event, Weetland ehall receive any
benetits or bonuses to which it is entitled under such plan or
policy adopted by the city. city aqree. that the net rentable
square tootaqe occupied by the Child care Facility and any ancil-
lary uses appurtenant thereto shall be excluded trom calculation
ot the tloor area allocation ot the 1,645,700 net rentable .quare
teet authorized under 2-GPA-89.
2.6 CDndi~iDn. wi~h RêaArd ~o ~h. MAster Us. P8rmit.
The provi.iona ot the Ke.ter U.e Permit tor the Shoppinq Center
will apply to currently exiatin; ussa and to any propoeed usee
which may occupy the Shoppinq Center, includinq unbuilt tloor area
authorized hereunder, as tollows: (i) proposed uses located east
ot Wolte Road which are not otherwi88 required to obtain aeparate
use permit review and approval under the terIIUI ot the Keater U.e
permit and this Agreement will not be subject to .eparate use
permit review and approval aolely becauee .ucb propoaed use will
operate between the houra ot 11:00 p.m. and 7:00 a.m.;
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~ 2 9 1P~ GE I 999
(ii) .xisting approved uses or tuture approv.d us.s locat.d
anywhsre in the Shopping center may remain open to the public
betw..n 11.00 p... and 7:00 a... on an occasional basis tor
sp.cia1 .arketing and pro.otiona1 .v.nts subj.ct to prior written
approval from the City's Community Development Director. Such
approval may be granted, in the Community Development Director's
discretion. tor events involving the entire Shopping Center.
events involvinq a group of the Shopping Center occupants and
events involving a single Shopping Center occupant, subject to a
tinding by the community Development Dir.ctor that ad.quat. steps
have be.n taken to .ini.ize the disturbance resulting trom op.ra-
tion during such hours to property owners adjoining the Shopping
c.nt.r; (iii) proposed us.s located west ot Wo1te Road which wish
to op.rat. between the hours ot 11:00 p... and 7.00 a.m. shall
remain subject to separate uss permit approval. Notwithstanding
the toregoing. pursuant to the provieiona ot ths Mast.r Use Permit
and this Agr....nt. a cinema complex may be built and operated in
one ot the tOllowing locations. without a separate use permit
application, subj.ct to the conditions set torth in the Master Uss
P.rmit:
2.6.1 Westland may elect to build a cinema complex
of up to 2,500 seats on the site adjacent to the Saars store shown
on Exhibit "Ø" (the "W.stsid. Sit.").
2.6.2 Wsst1and may .1.ct to build a cin.ma complex
ot up to 3.500 seats on ths Wests ide site, provided that it
Westland elects to build a 3.500 seat cinella complex, the total
~ui1d out to 1,645.700 square t.et ot gross 1.asab1e ar.a tor the
Shopping Centsr authorized under General Plan A:aendment 2-GPA-89
-18-
.
" ~ 9 7P~ GE 2 0 0 0
and this Aqreement shall be reduced by 100,000 square feet of
qross leasable area, thus reducinq the total build out authorized
under the Kaster Us. Permit to 1,545,700 square te.t of gross
leasable area.
2.6.3 Westland may elect to build a cinema complex
of up to 3,500 seats at either the .ite ahown on Exhibit "8"
located between the Penneys' store and the proposed site for the
Sports Connection facility, or anywhere on the Rose Bowl (collec-
tively, the "Eastside sites"). If Westland elects to build a
3,500 seat cinema complex on one of the Eaat.ide Site., the total
build out to 1,645,700 square teet of gros. leaaable area author-
ized hereunder shall be reduced to a total build out of 1,600,000
square feet of gross leasable area.
If Westland elects to build a cinema complex pursuant to the
provisions of 2.6.1, 2.6.2 or 2.6.3 above, .aid us. may operate
durinq hours of operation customary to the cinema industry. The
parties acknowledqe that the reduction in the total build out of
qross leasable square footaqe specified in paragrapbs 2.6.2 and
2.6.3 is a neqotiated measure intended to mitiqate potential
traffic impacts of the cinema use and that the approval tor a
cinema use specified berein is not intended to limit or restrict
Westland's right to pursue development of additional apace for
cinema use, in any location in the Shopping canter, in accordance
with the provisions ot this Agreement and the Vested Elements.
Approval ot additional space tor cinema use shall be subject to
separate use permit application.
city agrees that it will not impose any tax, tee or surcharqe
on cinema admission revenues as a condition ot the construction of
-19-
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" 2 9 1P^ GE 2 0 0 I
the cinema tacility or of the cinema's operstion. However, City
retaln. the rlqht to adopt a city-wide admi..ion. tax, t.. or
surcharge in ths tuture and Westland aqreee not to oppose such
action by city. Any building perait application tor such cinema
shall be sUbject to review as set torth in paraqraph 2.8.3
hereinbelow.
2.6.4 condi~ionR wi~h Reaørd ~o sinala U..r Snace.
Westland aqrees that at least 80,000 square teet ot the total
260,000 square teet ot additional net rentable equare teet
authorized by General Plan Amendment 2-GPA-89, when completely
constructed, will be reserved tor use by a "Single User". For
purposes of this Agreement, a "51nql. User" shall mean a depart-
ment stor., specialty store, major retail attraction or major
attraction, which is subject to the control ot a si"91e management
entity or lessee and which operates as or appears to the public to
r-perate .s a single entity or user, even it 80" areas within such
space are operated by other parties. In the event Westland
requests a proposed Wle tor the single user space which does not
satisty all the criteria set forth herein, such proposed use shall
be allowed, subject to approval by a majority of the City Council.
Westland may request approval by submitti"9 a written request to
the Director of Planni"9 specifying the alternative proposed use
tor the Single User space and Westland shall provide any addi-
tional intormation reasonably requested by city. The Director of
Planning shall submit the request to the city Council for
approval. city Council shall schedule a public hearing pursuant
to the city's procedural ordinance and thereafter shall vote to
approve or disapprove such request within sixty (60) days from
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H291PrGE2002
d.liv.ry of the writt.n raqu..t from w..tland. city aay continu.
the r.qu.st for on. additional thirty (30) day period. wi~h
Westlandt. prior con.ent, which consent shall not be unreaaonably
withheld. Failur. of the city Council to approve or di.approv.
Westland's request within .uch .ixty (60) day period (or nin.ty
(90) day period, if ext.nded as .et forth abov.) shall be deemed
approval.
2.7 Grant of EaSAmønta. In consideration ot the
payments to be made by w.stland under section 2.7.1. city shall
qrant and deliver to we.tland, in recordable form, contemporan-
eously with the .xecution of thi. Aqr....nt, an ea.ement agr.ement
whereby City grant. to W..tland perpetual air, .urfac. and .ubter-
ranean easements running with the land, which will provide the
proj.ct with .a....nt. for additional ped..trian and/or v.hicular
access for ingress and egre.s ov.r and under Wolf. Road and Vallco
Parkway. Th. tunnel .asements granted under Wolf. Road and Vallce
Parkway shall be u..d only for internal traffic circulation within
the Shopping C.nt.r. The form and .ubstanc. of .uch .a....nt
agreement .hall be in the fora attached a. Exhibit ·C· and incor-
porat.d h.r.in. Said .a....nt agr....nt shall al.o contain a
termination and quitclaim of .asement righta pr.viously granted
city over those portions of the Shopping cent.r d.scribed in
Exhibit ·C· attached h.r.to.
2.7.1 In consideration of the granting of .uch
easements by City to W.stland and the taraination of City'.
existing .a....nt rights. W..tland agr.... subject to the t..... of
paragraphs 2.7.2 and 2.7.3 below. to pay city the ba.. amount of
On. Hundr.d Thouaand Dollar. ($100.000) per year (which ba.e
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H291PI.GE2003
amount will be subject to adjustaent as set forth in para-
graph 2.7.2(a». The base amount of $100.000. as adjusted. is
hereinafter referred to u the "Annual Payment". The Annual
Payment shall commence on the dates sst forth below and will
continue thereafter tor a period of tift..n (15) years. The
parties acknowledge that Westland i. curr.ntly obligated to make
annual paycents of $67,000 to City pursuant to the terms of that
certain agreement between City and Vallee Park Ltd., a California
limited partnership. dated OCtober 8. 1974. a. amended ("Ea.ement
Agreement"). westland'. obligation to pay the sum of $67,000 per
year shall terminate in 1994 and nothing contained herein shall be
deemed to extend such obligation pa.t the date. set forth in the
Easement Agreement. Notwithstanding the foregoing, in the event
westland commences payment ot the Annual Payment amount prior to
termination of it. obligation to pay .uch $67.000 annual amount,
payment of the Annual Payment amount shall supersede and be in
lieu of payment of such $67,000 amount. Under no circumstances
shall Westland be obligated to pay both the Annual Payment amount
and the $67,000 annual payment required under the Ea....nt Agree-
ment dur ing the same year. The Ea....nt Agr.......nt shall be
amended as set forth in Exhibit "C" to incorporate the provi.ions
of this .ection 2.7.
The Annual payment, together with the payment. previously
received by City under the Ea.ement Agr....nt. .hall be utilized
by City in a manner as approved by the city Council to enhance the
environmental quality of the City. The City Council shall give
priority to environmental problems in the vicinity Of the Shopping
Center. In con.ideration of this Agreement and the'Annual Payment
-22-
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M 2 9 7 p~ GE 2004
to city, w.stland shall not be obligat.d at any tims to partici-
pat. in or pay any amounte required under any environmentally
r.lat.d proqrame attecting or relating to the Shopping Cent.r or
w.stland's op.ration ot the Shopping C.nt.r, including without
limit traffic, transportation, parkinq, air quality and ..wage
proqrams (coll.ctiv.ly ·Environmental Proqr...·) curr.ntly in
etfect or which may be adopt.d in the tutur. by city, .xc.pt as
expr.ssly s.t torth in thie Agr....nt. Notwithetanding the
tor.going, W.stland ehall participat. in and pay any amounte
requir.d und.r any Environmental proqram mandat.d by and paid ';0
the state of California or the United stat.. Government or any
dir.ct ag.nciee th.r.ot.
2.7.2 W.stland'e obligation to Þeqin paym.nt ot
the Annual paym.nt shall not commence until W.etland hae compl.t.d
.xpaneion ot the Shopping cent.r con.ieting ot at least 200,000
square t..t ot additional n.t r.ntabl. epac.. Such 200,000 .quar.
t..t ot additional net rentable space shall be de...d complet.d
wh.n city has iesued C.rtiticatee ot OCcupancy tor such n.w
construction and d.veloplll8nt within the Sbopping cent.r, such that
the total available net rentable equare tootage within the
shopping cent.r immediat.ly available tor occupancy ie at l.aet
1,310,700 square t.et. The 1,310,700 square teet of available net
rentable spac. sh~ll be h.r.inatter r.terred to as the ·paym.nt
Threshold.. Upon reaching the payment Threshold, westland's
obligation to pay the Annual Payment amount shall commence and
shall continu. y.arly thereatter tor a period ot titt..n (15)
years. onc. the Payment Threshold has be.n reached, the obliga-
tion to make euch paymente shall survive the earlier te...ination
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K297P',GE2005
ot this AgreemBnt. The amount ot the Annual PaymBnt shall be
determined at the ti.. the Payment Thr..hold 1. reached in the
tollowing manner:
(,,) The amount ot thB Annual Payment shall be
ca.~ulated by mUltiplying the sum ot $100,000 by a traction the
numerator ot which is the "CPI" Cas dBtined in paragraph 10)
pUblished nBarest and preceding the Payment Threshold date and the
denominator ot which is the CPI published nearest and tOllowing
the Ettective Date ot this Agreement. The amount so calculatBd
shall be the Annual Payment, provided that in no Bvent shall the
amount ot the Annual Payment whBn calculatBd BxcBBd $150,000.
2.7.3 The amount ot the Annual Payment shall be
increasBd on the tifth C5th) and tenth ClOth) anniversary ot the
PaymBnt Threshold date. ThB amount ot Bach increase shall be
egual to thB "AdjustmBnt Amount", which shall be calculatBd in thB
followinq manner:
Ca) ThB Adjl18tment Amount shall be dBtBrminBd
when thB PaymBnt Threshold is reached, at the same time as whBn
thB amount ot the Annual Payment is determined, and shall be
calculated by mUltiplying the sum ot $25.000 by a traction. the
numBrator ot which is the CPI published nearBst and prBceding thB
paymBnt ThrBShold date and the denominator ot which is thB CPI
published nearest and tOllowing the Ettective Date ot this Agree-
mBnt. The amount so calculated shall be the Adjustment Amount.
provided that in no event will the Adjwotment Amount when so
calculated exceed $37,500. Once the amount ot the Annual Payment
and thB Adjustment Amount are determined. neither amount shall be
SubjBCt to any turther CPI adjustment.
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2.7.4 The Annual Payment shall be paid by Weetland
in two (2) equal inetallmente. The installments shall be due on
March 1 and Septamber 1, of each year, co...ncinq atter the
Payment Threehold hae been reached and Weetland'. obliqation to
pay the Annual Payment shall only apply to installment payments
which become due atter the date the Payment Thre.hold i. attained.
2.8 Ruløs. ReaulA~iDnB and O~~i~iAl Policies.
2.8.1 Development of the Project shall be eubject
to all standards in the General Plan, the zoning' code., and other
rulea, requlations, ordinance. and official polici.. applicable to
euch development on the Ettective Date (collectively called the
"Existinq Ordinances"). TrUe and correct copies of the Existinq
Ordinancee on the Etfective Date are attached as Exhibit "D". To
the extent any chanqee in the Exietinq ordinancee or any provi-
sions of tuture General Plans, zoninq cod.. or other rule.,
ordinances, regulations or polici.., adopted on a city-wide basis,
are applicable to the Project and are in conflict with, or prevent
the implementation of the Vested Elements or the benefits to
Westland derived thereunder, the Vested Blements shall prevail.
To the extent any provisions of future General Plane, zoninq codes
or other rul.., ordinances, requlatlolU1 or polici.., adopted on a
city-wide baeis, are applicable to the Project and do not conflict
with or prevent the implementation of the Vested Blemente or the
benefits to Westland derived thereunder, such General Plan, zoning'
codes or other rules, ordinances, regulations or policies shall be
applicable. Further, to the extent any proviaions of future
General Plans, zoninq cod.. or other rul.., ordinanc.., regula-
tions or policies, adopted on a city-wide basi., are applicable to
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the project and are 1... r..trictl~. than tho.. General plana,
zoning cod.. or other rul.., ordinance., regulation. or polici..
in ettect aa ot the Ettective Data, then We.tland may tile an
application with the city Council to be qoverned by such tuture
General Plan, zoning codes, or other rules, ordinances, regula-
tions or policiea and City Council'. consent to such application
shall not be unreasonably withheld or delayed.
2.8.2 This section shall not preclude the applica-
tion to development of the Project of chenqes in city laws,
raoulations, plans or policies, the terms of which are specifical-
ly mandat~d or required by chanqes in state or Fede~al laws or
regulations. In che event state or Federal lawa or regulations
enacted after the Effective Date of this Aqr....nt or action by
any qovernmental jurisdiction other than the City prevent or
preclude compli~nce with one or more provisions of this Agreement
or require chanqes in plans, maps or permits approved by the city,
this Aqreement shall be modified, extended or suspended as
required pursuant to Sections 3.4 (Enforced Delay; Extension of
Time of Performanca) and 6 (cooperation - Implementation) of this
Agreement in a manner so as to preserve to the fullest extent
possible the intent ot the parties as set forth herein. In
addition, city shall cooperate with westland in the event that
Westland electa to conteat either the lawfulne.. or the appllca-
bility of the chan<¡ed law or requlation to Westland, the Shoppinq
Center, or this Agreement.
2.8.3 Nothi~ set forth herein .hall impair the
riqht ot city to require the proces.inq of buildinq permits as
required by law and to conduct de.iqn review of any .pecific
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improvements proposed for the Project. However, in connection
with such review the City shall not impose any condition which
would be inconsistent with any term or provision of this Agreement
or the V..ted Elements and city ahall not unreaaonab1r withhold or
delay review or approval of proposed improvements. The city's
desiqn review shall be limited to review by the Director of
Communi~y Development to determine whether the plans, drawings and
specifications for proposed construction are consistent with the
Desiq~ Objectives Narrative and Use Permit conditions approved by
city as part of Application 9-U-90 end the siqnaqe criteria
approved by the city as part of the ASAC Applications. A copy of
the Desiqn Objectives Narrative is attached hereto as ADDendix I
is incorporated herein by reference. A copy of the ASAC Applica-
tions as approved by city, are attached bereto aa ~DDendix II and
incorporated herein. Upon receipt of a complete buildinq permit
application, the Director of community Development shall (i)
approve the buildinq permit application without notice and public
hearinq, unless the Director finds that the plans, drawinqs and
specifications submitted with such buildinq permit application
materially depart from the architectural and desiqn elements and
siqnaqe criteria for the Project set forth in the Desiqn Objec-
tives Narrative, the ASAC Applications and the Vested Elements, or
(ii) disapprove (in writinq, with an explanation Of the basis tor
disapproval) the buildinq perai~ application if the Director finds
that the plans, drawinq and specifications submitted with buildinq
permit application materially depart froa the architectural and
desiqn elements and siqnaqe criteria for the Project set forth in
the Desiqn Objectivee Narrative, the ASAC Applicàtions and the
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K297P1,GE2009
V..ted Ele.enta, in which ca.. we.tland ..y refer such disapproval
to the city Council for r.con.id.ration. or (iii) the Dir.ctor may
ind.p.nd.ntly r.f.r .uch building pe~it application dir.ctly to
the city council. If the city council find. that the buildinq
permit application does not materially d.part from the architec-
tural and de.ign elements and signag_ criteria for the Project set
forth in the D.siqn Obj.ctions Narrativ.. the ASAC Applications
and the Vested Elements, the City Council shall approve the
buildinq permit application without notice and public h.arinq and
such approval shall not be unreasonably withheld. Xn the event
the buildinq p.rmit application is submitt.d to the City council,
eith.r upon referral by w.stland or by dir.ct r.ferral by the
Director. the city council shall qive W.stlan~ notice of approval
or disapproval (with an .xplanation of the ba.i. for disapproval)
of the buildinq permit application within sixty (60) days from the
date of referral. such sixty (60) day period may be extended by
city for an additional thirty (30) day period with the prior
consent of westland. Failure of the city council to approve or
disapprove the buildinq permit application within such time period
shall be d.emed approval.
2.8.4 All applications for City approvals. permits
and entitlements shall be subject to the d.velopment and process-
ing tees, charges and taxes within the control of the city which
are in force and eff.ct as of the time of grantinq of such
approvals. permit. or entitlement. Notwithetandinq the foreqoinq,
Westland shall nOG be required to pay new f.... or fees or charqes
that are in addition to or greater then the fee. in exi.t.nce as
of the Effective Date except as follows:
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(a) city aay increa.e exi.tin; tee. and
charge. ba.ed on any increa.. in the ..timated reasonable coat to
city tor pertorming the work tor which the particular tee or
charge i. paid, by an amount which will compen.ate city tor the
estimated reasonable costs and increase. incurred, as permitted
pursuan~ to Government Code sections 66013 et .eq.
(b) Any new exactions, dedication., impact
tees or regulatione enacted or adopted by City ehall only apply to
the Project it allot the tollowinq conditione are met. (i) such
new exactions, dedicationa, impact te.. or regulations apply to
all new development in the city and do not diecriminate agai~st
the Project, (ii) there is a direct neXUS between the new exac-
tion, dedication, impact tee or regulation and a specitic impact
arisinq directly as a result ot the development ot the Project and
city provides aseurance to weetland that the impact tee or exac-
tion payment paid by Westland will only be used to mitiqate the
specitic impact tor which it wae impoeed and (iii) the area ot th~
impact addressed by such new exactions dedications, impact tees or
regulatione is not already mitiqated, as provided under the terms
ot thie Aqreement.
2.8.5 Notwithetandinq any provieione contained in
any Vested Element in thie Aqreement to the contrary, codes, ordi-
nances and regulations relating to health, safety, fire, sewer,
water or conetruction standards or permits ehall apply as ot the
time ot each applicable permit is qranted. Upon complyinq with
the applicable conditione eetabliehed in the Exietinq and Project
Approvale, Weetland &hall have the riqht to apply tor any necee-
sary permite or approvale under the city'e then presently existinq
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buildin~ and fire codee. Upon applic~tion by Westland, city shall
review the application and, within a reasonable ti.. i.sue all
necessary permit., occupancy certificate., or other required
permits for the construction, use and occupancy of the Project, or
any portion of it, including connection to all utility systems
under the city·. juriødiction.
Notwithstanding any provision of this ..ction to the con-
trary, in event of a sewer connection moratorium ordered by the
Regional or state Water Quality control Board, or in the event of
restrictions on additional water connections or restrictions on
the availability of other utilities or scarce resources imposed by
the united states Government, the state of california or the
county ot Santa clara, or in the event of any other event beyond
the control of the city of cupertino, which restricts.or prohibits
the issuance of building permits. the obligations of city
contained in this section to issue building or occupancy permits
shall be suspended u¡.~;;l tI:. city is legally able to issue said
permits; provided, however, that to the extent possible and
provided suCh priority shall not negatively impact any immediate
and leqiUmate health and safety nee4a of city for new public
facilities, City shall grant to Westland a priority in the pro-
cessing and issuance of building permits requested by Westland to
enable Westland to receive sald permits .s soon .a the city 1.
legally able to issue said permits. said suspension shall not
constitute a breacb of this Agreement and sball not relieve the
parties from their obligations under the remaining provisions of
this Agreement. In the event the obligation of City to issue said
permits is suspended because of an actual shortage in the avail-
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ability ot utility capacity necessary to service the Project or
because ot restrictions on availability ot utility capacity or
other allocated r..ourc.. or entitle.ents impo.ed by the United
States Government, the state of California, County of Santa clara
or other qovernmental entity (other than city) then City aqrees
that in the event city has discretion or authority to ration such
utility capacity or other allocated re.ource or entitlement,
Westland shall be entitled to receive a tixed annual allocation ot
available capacity equal to (i) at least thirty percent (30') ot
the total water and sewer allocations available tor new develop-
ment in the city ot cupertino durinq the calendar year in which
Westland has applied tor such buildinq permit, and (ii) as to any
other allocated resources, City shall use its best ettorts to
allocate and ..cure sufficient allocations ot re.ources to allow
development ot the Project to qo torward and the parties hereto
acknowledqe it is the intent ot city to assist Westland as much as
possible in qettinq the Project completed as expeditiously as
possible. The precise plan tor implementation ot the tixed
allo~ation ot total available capacity tor the benetit ot Westland
shall be determined it and when an actual shortaqe or restriction
ot available utility capacity actually occurs.
2.8.6 The city and Westland recoqnize that the
success of the contemplated expansion of the Project is substan-
tially dependent' upon the timinq ot the construction ot the
improvements coincidinq with the market demand tor the additional
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space, and that the market demand 1. beyond the reasonable control
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ot either City or Westland. The inability to malte a timely
response to market demand may result in the permanent loss ot the
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economic opportunity oth.~·l.. available to city and w.stland.
Further, the city will receive a aubatantial economic benefit from
the success ot the expanaion. Therefore, city aqrees that this
Agreement shall preclude application to the Project of any future
building moratorium or similar ordinance, whether enacted pursuant
to California Government Code Section 65858, or otherwise.
2.8.7 city shall cooperate to the fullest extent
with westland in establishing aasessment diatricta, issuing bonds,
and providing such other public financing macbani... as may be
appropriate for the Project.
2.9 construction Phasina ~or NAW Parkina. Due to the
fact that construction of the Project by W.stland will be deter-
mined by market demand and conditions, the deciaion to expand the
Shopping Center as authorized herein and the timing cl: construc-
tion of the Project, shall be within Westland'. sole discretion.
However to ensure that adequate parking will be available,
westland shall provide additional parking to accommodate the
development of the Project. New parking for the Project shall be
provided at a ratio of one (1) parking apace for every 248 square
feet of qross leasable floor area of retail space ("Parking
Ratio"). The parties acknowledge that it is Westland's goal that
construction of the additional parking facilitiea required to
maintain the parking Ratio ahall be phased to coincide with the
construction of the Project ao that upon completion of new con-
struction on the Ro.. Bowl or upon completion ot new construction
elsewhere in the Shopping Center, Weatland shall provide or
construct additional parking apaces in reasonable proximity to the
new construction, in ~rder to maintain the total number parking
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spaces in compliance with the Parkinq Ratio. Notwithstandinq the
foregoing, city and w..tland acknowledge that develop..nt ot the
Project may occur incrementally, with development of smaller
portions occurrinq first, and that construction of new parkinq
structures to accommodate parking for such development may not be
feasible or economical. During construction ot the Project,
Westland shall be deemed to continue to be in compliance with the
Parking Ratio as long as the total number of parking spaces
provided by Westland tor the Shopping center are not more than 200
parking space. below the total number of apac.. required under the
parking Ratio (the "parking Threshold"). If available parking
falls below the Parking Threshold, Westland shall commence con-
struction of new parking facilities to provide the required number
of additional parking spaces. Westland shall also proceed in good
faith to obtain cooperative shared offsite parking to offset short
term parkinq deficit conditions which may occur during the
"Christmas" shopping season, which shall _an the period from
Thanksgiving through December 27. Upon completion of the entire
Project, new parkin; facilities will be provided to maintain
parking for the Shopping Center in compliance with the Parking
Ratio. For purposes of this Aqreement new parking spaces shall be
deemed to be in "reasonable proximity" to newly constructed retail
space if such new parking is located within reasouable proximity
to a mall entrance to the Shopping Center.
2.10 DAveloDment o~ -Non-Retail u...·. city and
Westland aqree that WestJand may build all or a portion of the
project for "Non-Retail Uses", subject to the provisions of
pAraqraphs 2.10.1 and 2.10.2 herein!>elow. For purposes of this
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Agreement, the t.rma .Non-R.tail u..· or ·Non-Retail u...· .hall
mean any u.. which i. authorized und.r the G.n.ral Plan and zoning
tor the Shopping C.nt.r or the Ro.. Bowl a. ..t forth in the
Ve.ted Elem.nt. and which ¡. not included in the H.t of ·R.tail
Usesl! set forth on F.Yhibit "E" attached hereto and incorporated
herein. The term "Exiatinq Non-Retail Uses" shall mean any Non-
Retail Uses which are locat.d in the Shopping C.nt.r a. of the
Effective Date of this Aqre.ment. The terms ·Retail Use· or
"Retail uses· shall mean on. or more of the us.. which are listed
on Exhibit "E".
2.10.1 In the .v.nt w..tland .l.ct. to d.v.lop the
Rose Bowl or other areas of the Shopping center for Non-Retail
use, then such new development shall be subject to a separate use
permit application by We.tland. city agr... that a. a condition
of approval of such use permit application city may not require,
except as expressly s.t forth h.rein, any additional payments
(other than standard use permit application f..s), exactions or
impact fees, from W..tland and that city may not r.quir. a traffic
study as a condition of such u.. parmit until the new space built
for Non-Retail U... exceeds 65,100 square t..t. Notwithstanding
the foregoing, city may impo.. n.w impact f... or .xaction. as
specific mitigation ..a.ur.. which are conditions of approval of
such use p.rmit application provided that .uch impact fe. or
exaction .hall only be impo.ed to mItigate a .pacific id.ntifiable
impact ari.ing dir.ctly a. a r..ult of the d.v.lopment of .pac.
for Non-Retail us.., .s opposed to _þace for Retail U..., and
provided furth.r that W..tland i. unable or ba. .l.cted not to
exercise its right to cur. or reaedy .uch .pacific impact through
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independent mitiqation aeaaurea to be implemented by Weatland,
with the prior approval ot city (vhich approval ahall not be
unreasonably withheld or delayed).
city ahall provide aaaurancea to Weatland that the impact
tee, or exaction paid by weatland vill only be uaed to mitiqate
the specific impact for which the te. or exaction was i.posada It
city taila to u.. such impact t.. or exaction payments .a required
by the current proviaiona ot Government Code 56600 et aeq., the
tee or exaction vill be retunded to Weatland, vith intereat, aa
provided in the current proviaiona ot Government Code 56601. The
reatrictiona on City'a uae ot auch impact tee or exaction payments
set torth herein ahall continue in ettect notvithatandinq any
future chanq.. or repeal of Government Code 56600 at ..q. Except
as alloved above, city ..y not iapoae any additional impact tees,
exactions or charq.. .. a condition of such use permit approval.
city and Westland aqrse that tor each one (1) net rentable
square toot of new apace conatructed tor Non-Retail U.. above the
Nev Non-Retail Uae Tbreahold, the total build out ot net rentable
space to 1,645,700 approved hereunder ahall be reduced by one (1)
square toot. An example ot the application ot thia tormula ia aa
tollova: It 20,000 aquare teet ot net rentable square tootaqe
above the Nev Non-Retail u.e Tbreahold ia built tor Non-Retail
Use, the total build out ot net rentable equare tootaqe for the
Shoppinq center approved by City ahall be reduced by 20,000 aquare
teet to a total ot 1,625,700 equare teet.
The partiea hereto acknovledqe that lIboppinq centera
naturally conaiat ot a a..ll amount ot Non-Ratail Uaea and there-
tore, the in-lieu tee (deacribed below) ahall apply only to net
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rentable .quare tootag8 of new apace conatructed which i. u.ed tor
Non-Retail u.. to the extant that the total of auch new aquare
rootaqa occuplad by Non-Ratall U... .xc.ed. the l....r or: s.ven
percent (7'> of the total of all net rentable square f..t allowed
to be constructed pursuant to thi. Agr....nt or, ..ven percent
(7') or the total or all n.t r.ntabl. aquar. te.t actually bullt
puraua:'1t to this Agr....nt at the t1.e the new Non-Retail U..
take. occupancy ("N.w Non-Retall US. Thr.sbold").
For .ach aquar. root or new n.t r.ntabl. .pace bullt ror
Non-Ratail u.. 1n exc... of the New Non-Retail Use Threshold
durlnq the tarm or thls Aqr....nt. w.stland shall pay clty an
annual Min-lieu t.... The in-lieu ta. will be calculated by
totallnq the .al.e tax r.venue r.celved by clty rrom taxable sales
occurrlnq ln the Shopplnq cent.r ln the year prlor to commencement
or con.tructlon or th. space tor Non-Retall US. (the "bas. tax
year"). The total amount ot the base tax year sales tax.s revenue
to clty qenerated by the Shopplnq Center shall then be dlvlded by
the total number ot n.t rentable equar. t..t ln the Shopplnq
c.nter durlnq the ba.. tax year. to det.rmlne the sales tax per
square toot qen.rated by the Sbopplnq C.nt.r tor the base tax
y.ar. Th. In-li.u t.. shall be aqual to the sale. tax r.venue to
City per aquare toot ot n.t r.ntabl. space q.n.rat.d by the
Shopplnq C.nt"r ln the ba.. tax year.
The In-ll.u t.. .ball only apply to n.w .pace built tor Non-
a.tall U.e wh.n .uch epace 1. occupled by a tenant. It any n.w
space bullt by We.tland tor Non-Retall Us. ls lat.r convert.d by
W..tland to a Retail U.. or 1. vacated by the tenant. the In-lieu
tee as to .uch .pace shall be t.rmlnated trom the date such space
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is co~vsrt.d or vacated. Th. amount ot the in-li.u t.. sha~. b.
calculat.d annually, as described abov., bas.d on the sal.s tax
revenue to city per net rentable square foot, qenerated by the
Shopping Center during the prior calendar year. The amount of the
in-li.u t.. tor any qiven y.ar shall be det.rmined by city within
a reasonable time trom when the intormation necessary to calculate
the sal.. tax revenue to city per net rentable square foot gener-
at.d by the Shoppinq C.nter becom.. svailabl.. All .uch intorma-
tion necessary to calculate said in-lieu t.e shall be d.liv.red to
Westland .s soon .s it beco... available to the city. The 1n-lieu
te. tor such apace shall be payable annually for aa long .S ,such
space is occupi.d by Non-R.tail Us.s, which may continue beyond
the term ot this Aqr....nt.
It new r.ntabl. .pace i. built tor Retail Us.., We.tland may
thereafter convert &uch apace to Non-Retail Us.. and such space
shall be .ubj.ct to the in-lieu tee, as provided in thi. paraqraph
2.10.1, provided, howev.r, the in-lieu t.. shall only apply to n.w
space converted trom Retail U... to Non-Retail U..S to the .xt.nt
the total amount ot net r.ntable square teet ot such new space
conv.rt.d trom Ratail Ua.s to Non-R.tail U..S wh.n .dd.d to
exi.tinq Non-Retail Ua.. in the n.w .pac. exc.ed. the N.w Non-
Retail US. Thr.shold.
2.10.2 ~Dnver.ion of Rxiøtina SODe_ to Mon-Retail
J!Ua. w..tland shall hav. ths riqht to conv.rt to Non-R.tail Us.s
all or a portion ot the curr.ntly existinq n.t r.ntabl. square
tset occupied by Retail Uses in the Property (the "Existinq Retail
apac."). Westland's riqht to conv.rt such Existinq Retail Space
shall not be subj.ect to separate use permit application, but shall
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be conditioned upon We.tland paying to the City the annual in-lieu
fee de.cribed in par.graph 2.10.1 above, for each .quare foot of
Exi.ting Retail space converted to Non-Ratail U.... Provid.d,
however, that .uch in-lieu fee .hall not apply to any Exi.ting
Retail space conv.rted to Non-Retail u.e. until .uch tim. a. the
total amount of n.t rentable .pac. in the Shopping C.nt.r
(excludin? any new net rentable .pace built as provided herein)
occupied by Non-Retail u... exceed. the amount of net rentable
space in the Shopping Cent.r currently occupi.d by Ex1ating Non-
Retail us.. a. of the Effective Date plu. 6',100 .quar. feet (the
"Existing Non-Retail Thr..hold"). once the Ex1ating Non-Retail
Threshold i. reached, the in-lieu fee ehall thereafter apply to
Existing Retail Space converted to Non-Retail u.e wh.n .uch .pace
is occupied by a tenant. It any Existing Retail space converted
to Non-Retail U.e. i. later converted back to Retail U... or 18
vacated by the Non-Retail U.e tenant, the in-li.u f.. a. to .uch
space shall terminate. If payment of the in-lieu fee. de.cribed
in paragraph 2.10.1 and thi. paragraph 2.10.2 cau.e. economic
hardship to We.tlancS, then W..tlancS may apply to the City Council
for a waiver of the in-lieu fee and the City council .hall not
unreasonably withhold or delay its approval to .uch requ..t. Upon
approval from the City council the in-lieu f.e .hall be waiv.d for
as 10nq .a such econOJllc hardship continue.. The total amount or
the annual in-lieu fee de.cribed in paragraph. 2.10.1 and 2.10.2
for any cal.ndar year .hall be due on or before the l.t of March,
following the end of .uch calendar year. Th. total amount of the
annual in-lieu fee for .uch calendar year shall be calculated by
multiplying the annual in-li.u fe. per aquare foot (calculated a.
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set torth in para;rapb 2.10.1) times the total number ot net
rentable squars teet subject to ths in-lisu tee during such
calendar year. The amount of the in-lieu f.. de.cribed in para-
graphs 2.10.1 and 2.10.2, tor space which is only occupied by a
Non-Retail Use tenant for s portion of such calsndar year shall be
prorated baaed on amount of time the space was actually occupied
by such Non-Retail Use tenant. The in-lieu tee describe4 in
paraqraphs 2.10.1 and 2.10.2 sball not apply and shall not be due
for any space built for or converted to Non-Retail u.. after the
term of this Agreement. Notwithstanding an~inq to the contrary
set torth herein, in no event shall the space occupied currently
or in the tuture by the Sears store, the Penney's store, the
.
Emporium store, the ice rink tacility or the child care tacility,
or any uses ancillary thereto or any succesaors thereof, be
subject to the in-lieu fee described in paragraph 2.10.1 or
2.10.2.
2.10.3 Modi~icAtiDn of the Yn-Liøu Pee. In the
event Westland converts Existing Retail space to Non-Retail Use
such that the amount ot Exiatin; Retail Space converted to and
occupied by Non-Retail Uses exceeds the amount specified below
(the "Adjustment Threshold"), then the formula for detarmininq the
annual in-lieu fee per square foot ahall be subject to reevalua-
tion by Westl""" anc1 city. Upon conversion ot Exiatinq Retail
Space over anc1 above the Adjustment Threllbold, either city or
Westlanc1 ...y call tor a ..eting to review cSata reqardinq the
effect ot the convereion ot Existing Retail Space to Non-Retail
Uses on Westland, city and the in-lieu tee paid pursuant to this
paragraph 10. Westland and City ahall thereatter attempt to
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fit 2 9 7 p~ GE 202 I
determine a mutually aqreeable adjustment or moditication to the
in-lieu tee. During the pariod ot time between the date the
Adjustment Threshold is passed and the date a tinal resolution ot
a moditication to the in-lieu tee is reached, the in-lieu tee
payable by Westland shall be equal to the average ot the annual
in-lieu tee par square teet paid during the prior tive (5)
calendar years. It this period ot review by Westland and city
exceeds one (1) year, then city may elect to continue the amount
ot the in-lieu tee par square teet paid during the prior . ;'Q;: or
elect to have the in-lieu tee per square toot payable atter such
tirst year be equal to the average ot the in-lieu tee par square
teet paid during the most recent prior tive (5) calendar years
(including the most recent calendar year). It city and Westland
are unable to reach a mutually aqreeable position regarding a
modit1cation of the in-lieu tee par square toot within 12 months
trom the date the Adjustment Threshold is reached, then either
city or westland I118Y submit written notice to the other party
requesting that the issue be submitted to the city Council, a~
provided in paraqraph 14 herein.
2.10.4 The Adjustment Threshold shall be reached
when the total ....ount ot Existing Retail Space converted to space
occupied by Non-Retail Use tenants exceeds twenty percent (20') of
the total amount ot the "conversion Base Amount." The term
"conversion Base Amount" shall mean the total amount ot net
rentable square teet available in the Shopping center as ot the
Eftective Date, less the total net rentable square teet occupied
by Sears, penneys and the Emporiua space and the net rentable
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.
"297PgEZ022
square feet occupied by th~ ice rink facility and its ancillary
users.
2.11 Condition. wi~h ReaArd ~o RouginG Mitiaation
Measures. In order to completely and fully mitigate the effect of
the Project on the supply of affordable housing in the City,
Westland shall be required to implement one (1) of the following
housing mitigation measures (r.ollectivelY the "housing mitigation
options") :
2.11.1 Subject to paragraph 2.11.6, Westland may
elect to build or cause to be built at least fifty (50) unit. of
"affordable housing" located within the Shopping center property.
In the event Westland elects to implement this housing mitigation
option, city shall cooperate with Westland in authorizing and
approving any zoning approvals, subdivision of the Shopping
center, use permit applications or other entitlements or approvals
necessary to build such housing units on the Shopping Center
property. For purposes of this paragraph 2.11, the term "afford-
able housing" shall mean any type of housing that would qualify to
be included in the city's supply of low inC01l8 housing units,
including without limit, single resident occupancy units ("SRO's")
apartments or attached housing. Such housing shall reaarve
occupancy by low income persons according to the terms of a
supplemental agreement approved by the City council and by ti'.e
City Attorney prior to recordation. Said suppl....ntal agreement
shall restrict occupancy of said units for a minimua period of 30
years. To eliminate displacement ot residents, at thaend ot 30
years, upon prior approval by the City, existing residents in the
affordable units will be able to remain there at atfordable rates
-41-
4
11291Pr.GE2023
until they chooee to leav> 0: ara avicted tor ju.t cauea. Attord-
able rate. charqed .hal. nç~ exceed 25 percent ot qro.. income o.
eligible low income per.on. and eliqibility ot potential tenant.
will be based on incom.. not axc..ding HOD low inco.. limits for
the San Jose Primary Metropolitan statistical Area. Any re.iden-
tial units built by Westland on the Shoppinq Center property will
be in addition to, and will not be included a. part ot, the
535,000 square teet ot additional net rentable space authorized
under the project Approval..
2.11.2 subject to paraqraph 2.11.6, Westland may
elect to build or cause to be built at least titty (50) units ot
"affordable housing", to be located somewbere in the City, other
than the Shoppinq Center property. In the event We.t1and elects
to implement this housinq mitigation option, City .ha11 cooperate
with Westland in authorizinq and approving any zoninq approvals,
subdivisions, use permit applications or other entitlements or
approvals necsssary to build .uch housinq units. The housinq
uni~c described in this paraqraph 2.11.2 and paraqraph 2.11.1
above may be built, owned and/or manaqed by Westland in conjunc-
tion with City, other public or private non-protit housinq qroups,
or oth~: private developer.. It Westland does not directly build
such unit., the determination of whether We.tland ·cau..d" such
units to be built will be made by the Director ot community
Dev~lopment, in the .... manner a. set torth in paraqraph 1.3.1
hereinabove tor approval of proposed amendments.
2.11.3 Westland may elect to pay a one time
housinq mitigation tee ot up to Pive Hundred Thousand dollars
($500,000) (the "Hou.inq Pee"). The Housinq Pee .hal1 be subject
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..
" 2 9 7Pr. GE 2024
to adjuatment, aa deacribed in aubparagraph 2.11.3(a) below, and
ahall be paid pro-rata, in inatallmenta, aa the Project ia built.
The amount of each installment shall be calculated at the time
weatland receivea a building permit tor conatruction ot a portion
ot the Project. The lUIOunt ot auch inatall.ent ahall be equal to
the aum ot $500,000 timea a traction, the numerator ot which ia
the number ot rentable square teet ot apace authorized under the
building permit received by Westland and the denominator ot which
is 535,000, provided, however, that it, at the ti~~ such Hou.ing
Fee is due, Westland has received a building permit to build a
3,500 seat cinema complex in the "We.t.ide Sit.- (a. defined in
section 2.6 hereinabove), then the denominator ot the traction
shall ~ 435,000. It Weatland has received a building permit to
build a 3,500 .eat cinema complex 1n one ot the "East.ide sit.."
(as defined in ..ction 2.6 hereinabove), then the denominator of
the traction shall be 489,300. Such inatallment ahall be due and
payable by westland when the Certiticate ot OCcupancy tor such
space is issued. It requested by City, Westland shall post a bond
or other reaaonably aimilar aecurity tor the payment ot such
installment at the time Weatland receivea the building permit on
which auch installment 18 based (the "Building Permit). The
amount ot each inatallment ot the Houaing Pee to be paid by
weetland ahall be adjusted as tollowa:
(a) The amount ot each Houaing Pee install-
ment payment determined aa aet torth hereinabove shall be multi-
plied by a traction, the numerator ot which 18 the "CPI" (as
detined in paragraph 10) published nearest and preceding the date
on which the Building Permit ia iaaued (the "Adjuatment Date") and
-43-
.
" ;> ~ HI. GE 2 0 2 5
~~. d.nominator ot which i. the CPI publi.h.d n.ar..t and
tollo~tnq the Ett.ctiv. Dat. ot thi. Aqr....nt.
2.11.4 W..tland may .l.ct to participat. in and
comply with any hou.ing mitigation program .nacted by the city and
in .ttect a', the time a building permit tor a portion ot the
Project is .,eceiv.d by Westland. It city has not enacted a
housing mitigation program within two (2) year. trom the Ettective
Date ot thill Agreem.nt, then city will be deem.d to have no
hou.ing mitigation program tor purpo.es ot this Agr....nt and
We.tland .hall have no obligation to impl.ment any hou.ing mitiga-
tion option. or pay any h~'laing mitigation t.. tor any building
permit. receiv.d atter .uch two (2) y.ar pariod. It during such
two (2) year period westland rec.ive. a building parmit and city
has not .nacted a hou.ing mitigation program, W..tland .hall be
required to implement one ot the other hou.inq aitiqation options
as to the pro-rata portion ot the Project approved und.r .uch
building p.rmit. It a hou.ing mitigation program ha. be.n .nact.d
by City within .uch two (2) year period, w..tland may th.reatter
elect to implem.nt thi. option. It a houainq aitigation program
is not .nacted within .uch two (2) y.ar pariod, W..tland .hall not
receive a r.tund ot any Hou.ing Fee. previou.ly paid.
2.11.5 Any alt.rnative hou.inq mitigation mea.ur.s
which are au~ually acceptable to Westland and the city. Approval
and impl...ntation ot .uch alternative ....ur.. .hall not be
con.idered an amendment to this Agreement and .hall not r.quire a
public hearinq to approve such alternative measure..
2.11.6 A~Ministration o~ Housina Mitiaation
oDtion.. Th. titty (50) hou.ing unit. .paciti.d in paragraph.
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.
H297P~GE2026
2.11.1 and 2.11.2 above and the sum ot $500,000 (as adjusted)
specitied in paragraph 2.11.3 above shall be the maxiaum number ot
units or the maxiaum Housinç Fee, as the case may be, required
hereunder and is based on a complete build out by Westland ot all
535,000 aquare teat of tuture development approved under the
Vested Elements and this Agreement. In the event Westland builds
out less than allot such 535,000 square teet during the term ot
this Aqr....nt, then We.tland'. obligation to implement one ot the
houeing mitigation options shall be reduced by the same ratio that
the number ot rentable square teet actually completed by Westland
during the term ot this Agreement bears to the total ot 535.000
square teet of approved future development authorized hereunder,
provided however, the total ot 535,000 square teet ot approved
tuture development used tor purposes ot calculating the ratio
shall be reduced to (i) 435,000 square teet it Westland builds a
3,500 ..at cinema complex in the ·We.taide Sit.- (pursuant to the
provisions ot section 2.6.2 hereinabove), or (ii) reduced to
489,300 square teet it Westland builds a 3,500 seat cinema ~omp¡ex
in one ot the "Eastside Sites") (pursuant to the provisions ot
section 2.6.3 her~.nabove). westland may elect to implement any
one ot the housing mitigation options as to each building permit
received by Weetland and implementation ot such option shall tully
satisty westland's housing aitigation obligation a. to the space
authorized by such building permit. Westland shall notity city as
to which housing aitigation option will be implemented tor each
building permit at the time Westland applies tor such building
permit. In the event Westland elects to implement the housing
mitigation options set torth in paragraphs 2.11.1 or 2.11.2, with
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tl29 7 ptGE2021
regerd to e .pecitic building permit, W..tland .hall be obligated
to complete the required pro rata number ot hou.ing unit. by the
time Westland receive. a certiticate ot occupancy tor the rentable
space built pur.uant to such building permit.
The partiee hereto acknowledge that in the event the total of
535,00 squar. feet of futu¡~ development authorized hereunder is
reduced pursuant to the provisions of section 2.6, We.tland'.
obligation to implement one ot the houeing mitigation optione
based on a total build out of 535,000 square teet of rentable
space will not be correspondingly reduced and We.tland will be
required to implement houeing mitigation meaeuree for up to
100,000 square feet of epace that weettield did not develop.
city acknowledgee that an issue exist. ae to whether Weetland
should receive a Housing Mitigation exemption which could be
applied to future development ot 100,000 equare teet in excees ot
that currently allowed herein. Such an exemption would allow said
100,000 square teet to be built without the developer being
required to pay additional fee. or provide additional affordable
houeing to satisfy any affordable hou.inq requir8Dant.. Due to
time constraints, the issue hae been discus.ed but not re.olved in
this Agreement. The partie. hereto aqree that We.tland re..rves
the right to apply to the city in the future, without prejudice,
tor a Housing Mitiyation exemption, in con.ideration of the
additional housing mitigation requirement. currently eet torth in
this Agreement.
3. Dêtault~ Remedies: Termination.
3.1 General Provisions. Failure or unreasonable delay
by either party to perform and to co....nc. to· pertorm any t.rm or
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H297P~GE2028
provision of this Aqree.ent for a period of thirty (30) days after
written notice thereof from the party allaqing a d.tault shall
constitute a default under this Agr....nt, subject to extension.
of time by mutual consent in writing. said notice shall spacifY
the nature of the all.ged d.fault and the mann.r in which said
default may be satisfactorily cur.d. It the nature of the all.ged
default is such that it cannot reasonably be cured within such 30-
day period, the commencemant of the cure within such time period
and the dilig.nt pros.cution to compl.tion of the cur. shall be
deemed a cur. within such period.
subj.ct to the foregoing, att.r notice and expiration of the
30-day p.riod without cur., the oth.r party to this Aqr....nt, at
its option, may institute legal proceedings pursuant to '~\s
Agreement and/or give notice of int.nt to t.rminate the Agr.ement
pursuant to Gov.rnm.nt Cod. Section 65868. Following notic. of
intent to terminat., the matter shall be sch.duled for considera-
tion and revi.w by the city within thirty (30) calendar days in
the manner set forth in Gov.rnment Cod. s.ctions 65865, 65867 and
65868.
Following consideration of the evid.nc. presented in said
review before the city Council, the party all.ging the default by
the other party may give written notic. ot t.rmination of this
Aqreem.nt to th~ other party.
Evidence ot default may alao ari.. in the cour.e ot regularly
scheduled annual r.vi.w of this Agr....nt as dascribed in Section
3.2 below.
3.2 Annual Review. Each year beginning in 1993, City
shall r.vi.w the .xt.nt of good faith complianc. by Westland with
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H 2 9 ì -. r,E 2 0 2 9
the t..... of thi. Aqr.....nt. Such annual r.vi.w .hall be
conduct.d in accordanc. with the city Dev.lopllAnt Aqr.....nt
Ordinanc.. Th. ti..ing of the con.truction of the i..prov....nt.
cont...plat.d by thi. Agr.....nt .hall r....in in the .01. and
absolute discretion of W.stland baaed upon ita own determination
of the advi.ability of it. co.....ncinq con.truction ba..d upon its
analysis of .xisting and proj.ct.d ...rk.t condition. and the
advisability of the allocation of it. ti... and capital to the
Property. city recoqnizes that w..tland has gr.ater expertise in
the area of judging ..ark.t condition. and i. willing to d.f.r to
Westland'. judg....nt in thi. ...tt.r. Nothing in thi. Agr"...ent
shall require W..tland to commence construction of any of the
i..prov...ent. during the t.rm of this Agre....nt. and Westland shall
not be de....d to not be in good faith co..plianc. with this agr..-
..ent for not planning or co....encing the construction of the
i..prov....nts cont...plat.d by thi. Aqr.....nt.
3.3 Defaul~ bv City. In the event city doe. not
accept, review, approve or i.aue nec...ary develop.ent permita,
.ntitl....nt or oth.r land us. or building approval. for u.. in a
tillAly fashion a. provid.d in thi. Aqr.....nt. or a. oth.rwis.
agre.d to by the parti.s. or city otherwi.. d.fault. und.r the
t.rm. of tbi. Aqr.....nt. w.stland shall have all right. and
r...edi.. provided h.r.in or und.r applicabl. law.
3.4 Enforced Delav: Extension of Time of Performance.
In addition to .pecific provision. of thi. Agr.....nt, performance
by eith.r party h.r.und.r shall not be d.emed to be in d.fault
where delay. or defaults are due to war, insurrection, strikes,
walk-out., riot., tlood., earthquake., tir.., casualti.., acts of
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"297 ptGE2030
God, governmentel restric~ions imposed or mandated by governmental
entitiee other than city, enactment ot contlicting etate or
tederal laws or regulations, judicial deci.ion. or .imilar basie
tor excused pertormance which is not with!n the reasonable control
ot the party to be excused. It written notice ot euch delay ie
given to either party within thirty (30) daye ot the commencement
of such delay, an extension ot time tor such cause will be granted
in ....i ting tor the period ot the entorced deley, or longer as ""'y
be mutually aqreed upon.
3.5 Leaal Action. Either party ""'y, in addition to any
other right or remedies, institute legal action to cure, correct
or remedy a:1¥ default, entorce any covenant or agr....nt berein,
enjoin any threatened or ettempted violation or entorce by
specific performance the obligations and riqht. of the parties
hereto.
3.6 ADDlicablB Law. This Agreement shall be construed
and entorced in accordance with the laws ot the state ot
Calitornia.
4. Hold Harmless Aarêemen~. Westland hereby agr... to, and
shall detend, save and hold city and it. elected an appointed
councils, commi..ions, officers, agents and ..ploye.s baral...
trom, any and all claims, coste and liability tor any damage.,
personal injury or death, which are caueed by, directly or
indirectly, Westland's or Westland'. contractors', subcontrac-
tors', agents' or employ...· operations under this Agr....nt,
whether such operatione be by W.etland or by any ot We.tland'e
contractor, subcontractors, by anyone or more persons directly or
indirectly employed by, or acting a. agent tor We.tland.
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H 2 91 p~GE2031
5. No 30in~ Ven~ur. or PAr~ner.hiÐ. city and w..tland
hereby renounce the exietence ot any to~ ot joint venture or
partnership between them, and agree that nothing contained herein
or in any document executed in connection with thi. Agr....nt
shall be construed as making city and Westland joint venturers or
partners.
6. coonerAtion_Tmnlementation.
6.1 Procêsøina. city agre.. to cooperate with Westland
in implementing allot the conditions ot the EXieting Approvals
and the Project approvals. In addition, city shall cooperate with
Westland in the processing and checking ot all maps, plans,
building plans and specitications and other plans relating to the
development ot the Shopping center, tiled by Westland. In this
regard, Westland will, in a timely manner, provide city with all
documenta, applications, plans and other information necessary tor
city to carry out its oblige~. 's hereunder and causs wsstland's
planners, engineers and all other consultants to submit in a
timely manner all required materials and documents theretor.
shall apply in a timely unner tor such other permits and
approvals ae may be required trom other governmental or quasi-
governmental agencies having jurisdiction over the Project as may
be requirecl tor the development ot, or provision ot services to,
the Project. city ehall cooperate with Westland in ite endeavors
to obtain such pe~its and approvale and shall, trom time to time
at the request ot Weetland, attempt with due diligence and in good
taith to enter into bindinç, agreemente with any euch entity in
order to assure the availability ot euch permite and approvals or
6.2 othe'l" Governmental Permita. In addition, Westland
.
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"297 PI,GE2032
service., provided such agr....nt. are reasonable and not detri-
mental to City. To the extent allowed by law, w.stland ahall be a
party to any such agrsement, or'a third party beneficiary thereof.
Westland shall reimburse city for all costs and expense. incurred
in connection with seeking and entering into any such agreement,
provided that Westland has requested same. westland shall defend
city in any challenge by any parson to any such agreement, and
shall reimburse city for any costs and expenses inC9rred by city
in enforcing any such agreement.
7. cooDerøtion in the Event D~ Leaal Chal1enae. In the
event of any legal action instituted by a third party or other
governmental entity or official challenging the validity of any
provision of this Agreement, the parties hereby agree to cooperate
and to both use their best efforts in defending said action. Each
party shall bear its own costs with respect to such challenge,
unless the parties otherwise agree in writing.
8. Mortaaae Protection! Ce~ain Riahtø of CUre.
8.1 MortaBae Protection. This Agreement shall be
superior and senior to any lien placed upon the Shopping Center,
or any portion, after the date of recording this Bevelopment
Agreement, including the lien of any deed of trust or mortgage
("New Mortgage"). This Agreement shall be subject to and subordi-
nate to any lien placed upo" the Shopping Center or any portion
thereof and recorded prior to the recording of this Development
Agreement, including the lien of any deed of trust or m'..tgage
("Existing Mortgage"). This Agreement shall be binding upon and
effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to
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HZ 9 7 pr.GE2033
the Property, or any portion thereot, by toreclosure, trust..'.
sale, deed in lieu of toreclosure, or otherwise pursuant to the
llen of a New Mortgage. However, no breach of this Agr....nt
shall defeat, render invalid or impair the lien of any New
Mortgage sade in good faith and tor value.
8.2 Mor~aaaee Not Obliaated. No Mortgage. ahall have
any obligation or dutY1nder thi8 Agreement to construct or
complete the construction of improvements, or to quarantee such
construction or completion. A Mortgage. that acquire. title
through toreclosure, trustee's sale, deed in lieu of foreclosure,
or otherwise pursuant to the lien of a New Mortgage. shall have no
personal liability under this Agr....nt, and recours., if any,
under this Agreement shall be limited to the Mortgagee's equity in
the Project.
8.3 Notice of Default to Mertaaaee. It city receiv..
notice from a Mortgagee requesting a copy of any notice of default
given Westland hereunder and specifying the address for service
thereof. then city shall deliver to such Mortgagee. concurrently
with service to Westland, any notice given to Westland with
respect to any claim by city that Westland has committed an event
ot detault. It city makes a determination ot noncompliance with
this Agr....nt. city shall likewise serve notice ot int.nt to
terminate on such Kortqaqee concurrently with aervice thereof on
W.st\and. Each Mortgag.. shall have the right during the thirty
(30) day period tollowing s.rvic. ot the notice ot d.tault upon
the Mortgag.e, and a thirty (30) day period following service of
the notic. ot intent to terminate upon the Mortgagee to cur. or
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H297PAGE203~
remedy, or to commence to cure or remedy, the event of default
claim.d or the are.s of noncompliance .et forth in city'. notice.
9. General.
9.1 city and Westland agree that unless thie Agreement
is amended or terminated pursu~nt to the provisions of this Agree-
ment, this Agreement shall be enforceable by any party hereto
notwithstanding any change hereafter in any applicable General
Plan, specific Plan, zoning ordinance, controlled growth ordinance
or any other land use ordinances or building ordinances, resolu-
tions or other regulations adopted by city which changes, alters
or amends the rules, regulations and policies applicable to the
development of the Shopping center at the time of the approval of
this Agreement. This Agreement shall not prevent City from
applying new rules, regulations and policies which do not conflict
with, or prevent the implementation of those rules, regulations
and policies, and the benefits thereof, applicable to the Project
as set forth in the vested Elements or this Agreement.
9.2 If any term, provision, covenant or condition of
this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions of this
Agreement shall continue in full force and effect.
9.3 Each party shall execute and deliver to the other
all such other further instruments and documents as aay be reason-
ably necessary to carry out this AgrelUll8J1t in order to provide and
secure to the other party the full and complete enjoyment of its
rights and privileges hereunder.
10. ~: The term "CPI" shall mean the Consumer Price
Index, All Urban Consumers All Items, san Francisco-oakland-San
~
..
K 2 9 1 P,", GE 2 0 3 5
Jose Metropolitan Area (1982-84-100), now being published by the
united states Department of Labor, Bureau of Labor statistics. If
the CPI Is changed so that the base year is altered from that used
as of the Effective Date, then the CPI shall be converted in
accordance with the conversion factor published by the United
states Department of Labor, Bureau of Labor statistics, to obtain
the sama result that would have bean obtaIned had the base year
not been changed. It no conversion factor i. available, or it the
ePI is otherwise changed, revised or discontinued for any reason,
there shall be substituted in lieu thereof the term "CPI" shall
thereafter reter to the most nearly comparable offIcIal price
index of the United states Government in order to obtain substan-
tially the same result for any adjustment required by this Agree-
ment as would have been obtained had the original CPI not been
discontin~ed, revised or changed.
11. Assianment. This Agreement shall be binding upon and
inure to the benetit of the heir., succa..ors, and a..igns of the
parties. This Agreement shall only be assignable by Westland with
the consent of the city, which consent shall not be unreasonably
delayed or withheld. Any such assignment shall contain an assump-
tion by the proposed assignee of all the current and future
obligations of Westland hereunder. Upon such assumption, Westland
shall have no further obligations or liability under this Agree-
ment. If the assignee has sufficient economic resources to
reasonably assure the continued operation of the ice rink as
required by paragraph 2.3 of this Agreement, city shall consent to
the assignment. An assignment by Westland to an affiliate of
westland, or to an affiliate of the parent of Westland, shall not
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1
~036
H 2 9 7 pr,GE203¡:
r.quire the cone.nt ot the city, provided that W.stland shall not
be rel.as.d tro. any obliqation concerninq the continu.d op.ration
of the ice rink. For purpose. ot this provision, an atfiliate
shall be an entity in which westland, or ita parent, retains at
l.ast a 25' l.qal or .quitabl. int.r.st.
12. BAnkruDtcv or ReceivershiD. In the event Westland seeks
prot.ction tro. its cr.ditors by the tilinq ot any p.tition in the
Unit.d Stat.s Bankruptcy Court or is subj.ct to involuntary
proc..dinqs by its creditors or is mad. subj.ct to any r.c.iver-
ship proc..dinqs in stat. court, the city, .ay, t.rminat. this
Aqr....nt upon t.n (10) days writt.n notic. it (1) the Trust..
do.s not attirm this Aqr...ent within one hundred twenty (l_J)
days ot the commence.ent ot the proce.dinq, and (2) Westland tails
to continu. to operate the ice rink in the mann.r r.quir.d by this
Aqreement. For purposes ot this provision, the term ·Westland"
shall refer to the then record owner ot the Project, and not to
any tormer owner.
13. Notic.s. Any notice or communication required hereunder
betw..n city or Westland .ust be in writinq. and may be qiv.n by
reqist.red or c.rtitied mail, return rec.ipt requ.st.d. Th.
notic. shall be d.emed to have be.n qiv.n and r.ceived on the
tirst to occur ot (i) actual r.ceipt by any ot the address.s
desiqnated below as the party to who. notic.s are to be sent, or
(ii) tiv. (5) days atter a r.qistered or certitied letter contain-
inq such notice, properly addressed, with postage prepared, i.
d.posited in the United states mail. Any party her.to may at any
time, by qivinq ten (10) days' writt.n notic. to the other party
designate any other address in substitution ot the addr.ss to
-55-
..
H297Pr.GE2037
which such notics or communication shall be qiven. Such notices
or communications shall be given to the parti.. at their address..
set forth below:
If to City:
city of CUpertino
10300 Torre Avenue
CUpertino, CA 95014
Attn: Director of Community Development
If to Westland:
c/o
Westfield, Inc.
11111 Santa Monlca Boulevard, suite 1400
Los Anqeles, CA 90025-3348
Attn: John Endicott
14. Arbitration. In the event the issue of modification of
the in-lieu fee described in paraqraph 2.10.3 herein is to be
submitted to the city council, such i.aue ahall be deter&1neð
pursuant to the provisions of this paraqraph. Either party may
request a hearinq betore the city Council by qivinq the notice
described in paraqraph 2.10.3 hereinabove. The hearinq betore the
city Council shall take place not less than sixty (60) days nor
more than ninety (90) days trom the date either party submits
notice ot request tor a hearinq. At the hearinq the City Council
shall receive evidence presented by Westland and/or City, or their
designated agents, attorneys, accountants, contractors or
employees and the qeneral public. Westland may request, as a
matter of ~iqht, to have the hearing continued to the next
reqularly scheduled city Council meetinq and Westland may review
the Videotape of the initial hearinq and present additional
relevant evidence at the continued hearinq. At the conclusion of
the hearinq, the City council shall render a decision atter
evaluatinq the evidence presented. In evaluatinq the evidence the
-56-
.
K29iPr.GE2030
city council .hall condder the intent ot the partie. hereto that
the in-lieu te. ie intended to diecouraqe developunt ot Non-
Ratail U... within the Shoppinq center, but alao that the in-lieu
tee was not intended to cause economic hard.hip. to We.tland and
if economic conditions require We.tland to .eak Non-Retail U...
tor space in the Shoppinq Center, such Non-Retail Uses are preter-
able to VÄcancy or other economic hardships to Westland and City
resulting from lack of viable Retail Us... At the hearing before
the city council Westland and city may present any evidence
relevant to the issues to be decided by the city Council. such
hearinq shall be videotaped by City (and by We.tland it Westland
elects to videotape the hearinq) and each party shall be provided
with a copy ot the other party's videotape.
It Westland objects to the decision ot the City Council,
Westland shall deliver written notice to city within thirty (30)
days trom the date ot the city Council's deci.ion, requestinq that
the issue ot moditication ot the in-lieu tee be .ubmitted to
arbitration. Such arbitration shall be conducted pursuant to the
provisions ot the laws ot the state ot Calitornia then in Lorce,
with the rules ot procedure ~o be those ot the American Arbitra-
tion Association or its successor insofar as said rules ot proce-
dure do not conflict with the lawa of the stat. of California then
in torce. Once ~otice to arbitrate has been qiven, Westland and
City shall jointly, within thirty (30) days ot .uch notice, select
one arbitrator, or if they cannot agree on one arbitrator then
each party shall select an arbitrator within torty (40) day. ot
delivery ot said notice and the two (2) cho.en arbitrators shall
select a third arbitrator. It the two (2) arbitrator. are unable
-57-
..
H 2~· ì p.\GE2039
to agree on a third arbitrator then the third arbitrator ehall be
appointed by the preeiding judge of the Superior court of the
State of California, county of santa Clara. The three (3)
arbitrators so ..lected ahall convene aa 800n aa practicable and
review the evidence that was presented at the city Council
hearing. such evidence shall be limited to the videotape, any
documentary evidence presented at the City COWlcil hearing, any
confidential evidence reviewed by the city council and if westland
was not allowed an opportunity to present relevant evidence at the
hearing, Westland may pre.ent such evidence directly to the
arbitrator(s). Except as set forth herein, neither party may
present new evidence or conduct a new presentation ot the evidence
presented at the City Council hearing. The arbitrator(s) shall
independently review the evidence without any presumption
regarding any findings of the city COWlcil and by majority vote,
render a decision regarding modification of the in-lieu fee. Such
decision may approve, modify or disapprove the decieion of the
city COWlcil and such decision shall be binding upon the parties
hereto. The cost of arbitration shall be borne equally by
Westland and City. In the event either party tails to appoint an
arbitrator within the time required by thie paragraph, then upon
application of either party, the arbitrator shall be appointed by
the American Arbitration Association, or if there be no American
Arbitration Association, or if it shall refuse to perform this
fWlction, then at the request of the other party such arbitrator
shall be appointed by the then presiding judge of the Superior
court of the State of California for the COWlty of santa Clara.
-58-
.
K297PI,GE~OlIO
15. countArnartSe This Agreement i. executed 1n three
duplicat. oriqinal., .ach of which i. d....d to be an oriqinal.
Thi. Aqr.em.nt con.ist. of fifty nine (59) paq.. and .ix (6)
exhibits and two (2) appendices which constitut. the .ntir.
understanding and agreement ot the parties. Seid exhibits and
appendic.. are id.ntifi.d as follows:
Exhibit 'A-l' Map of Property and 'Rose Bowl'
Exhibit 'A-2' Map of Shoppinq Center
Exhibit 'B' Project Development Map
Exhibit "C· Easement Agreement
Exhibit 'D' Existinq Ordinances
Exhibit 'E' Li.tof ·R.tail U...·
App.ndix I D.siqn Objectives Narrative
Appendix II ASAC Applications
-59-
-
H 2 9 7 Pi, GE 2 0 '+ I
IN WITNESS WHEREOF, W..tland and city have .xecuted thi.
Agreement aa of the date first hereinabove written.
CITY OF CUPERTINO,
a Municipal corporation
WESTLAND SHOPPING CENTER L.P., a
California limited partner.hip
~ ../. By. WESTLAND PROJECTS, INC.. a
By:~~~pe¿"""A..~~al~Rh' co~ration, its
BARBARA Kopp~r
/If II '.' . v:1:
By. ,..-r J. ,'." Its: '
MARSHALL GOLDMAN,
Council.ember
J/
By: " . .1~1t¡ \" /' '/}.~
:,/ URALEE SORENSEN,
ouncilmember
By: fi"l.io).CJ V
NICHOLAS SZABO,
Counc11member
By: ðJ::[/~0'~
CouncllllSlDber /'
Attest: (' /J~
CHARLES laLIAN,
City Attorney
APPjP'ved as to ,fo"",
y -I1/j,J,l~'7-
DONALD BROWN, .
city Manaqer
R020.GM
10/3/91
WESTLAND PROPERTIES, INC., a
~
s: .., 'l>
-60-
..
H 2 9 7 PA GE 2 0 Ii 2
STATE OF CALIFORNIA
) ss.
CITY OF LOS ANGELES
On this 1itb day of Mav , 19~, 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.
capacity of signer: t of Westland Projects, Inc. general
of Westland Shopping Center L.P.
Type of Document: Development Agreement
~,.' OfFICIAL SEAL
.: ...., RORY A PACKER
,~.::. . NoIIfy PubIbC.~m.
.>.~.:.- t: .. LœÃNGEL.E8COUHTV
.~...., My""""'. e.,.....' '2. '003
STATE OF CALIFORNIA
) ss.
CITY OF LOS ANGELES
On this ll.th day of Mav ,19ll, 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.
capacity of signer:
Type of Document:
~sident of Westland Properties, Inc.
Development Agreement
I~-". ~,;\,fl"'¡!-~R
r:'::' . Notary PlJbllo-Cdlornll
.~:;..~, . lC:;:. :'"'::LESCOUNl'Y
.~"P.., My Cc~" . .' ". 12, 1_
..
STATE OF CALIFORNIA
COUNTY OF S---~ ~ ~
M291PftGE2043
ss:
~~~ , 1991, before me,
"'- ' , the undersigned, a
n and for sa d County and state, personally
appeared BARBARA KOPPEL, MARSHALL GOLDMAN, LAURALEE SORENSEN,
NICHOLAS SZABO, BARBARA ROGERS, DONALD BROWN and CHARLES KILIAN,
personally known to me to be the persons whose names are
subscribed to this instrument, and acknowle~qed that they
executed it.
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SITE PLAN
o-~::-~ VALLCO FASHION PARK
W!"STRELDIHC.
._""".....
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AREAS FOR ·FUTURE DEVELOPMENT'
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AREAS FOR FUTUR'E PARKING STRUCTURES
t1 2 97 r" ot 204 8
UCORDIHQ UQUJ:8T'ID BY A1ID
OZM UCORD'ID UTU1tJI 'l'O I
.
Westland Shopping Center L.P.
~/o Ferrari, Alvarez, Olsen' ottoboni
333 W. Santa Clara street, Suite 700
San Jose, CA 95113
Attn: James J. Eller, Esq.
THIRD J.JU!!:NnMII::N'l' AND ØU'PPLZJdIl'l' TO AGUZM!:NT
This Third Amendment and Supplement to Agreement ("Third
Amendment") made and entered into .s ot
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") .
. IT. . . . . T .,
A. city and Vallee Park, Ltd., a California limited
partnership ("Vallee") entered into that certain Agreement dated
October 8, 1974, recorded october 17, 1974 1n 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 Auqust 20, 1975 in Book B 571 ot the
otticial Records of santa clara County, california at page 724
("Supplement"). The Original Aqre..ent was further amended by
that certain Second Amendment to Agr....nt dated March 1, 1976,
by and betw.en city and Valleo recorded s.pteab.r 14, 1976 in
Book C2S0 of the Official Recorda of santa clara County,
California at page 236 (the "s.cond Aa.ndm~t"). The Original
Ag.ceement, tog.th.r with the Suppl_.nt and S.cond Amendment, are
h.r.ir~tt.r ret.rred to a. the "Existinq Agre_ent";
C. Westland i. the succ...or in int.r..t to Vallco. city
andW..tland d..ir. to suppl...nt and ..end the Existing
Agreement pur.uant to.the provisions ot paragraph 7 of the
original Aqr....nt, to cau.. to be granted by City to w..tland
certain additional perpetual and exclusive ea..m.nts for
pedestrian walkways and bulldinqs and tor vebicular and
pedestrian tunnel. and appurtenance. thereto, all aa described in
more detail hereinbelow and to ..end the Existinq Aqreement to
provide tor the teraination ot certain rights granted to City
under the Existing Agreement.
Exhibit C
__ C
~
M Z 9 7 i'.~ 3': 2 0 4 9
D. The supplements, modifications and amendments to the
Existing Agreement are aesired to allow expansion and
construction of additional improvements for the Vallee 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 ~allco Fashion Park (the "Development
Agreementll). 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 Vallco parkway,
a dedicated punlic street, in the location shown on Exhibit "A-I"
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 buildin~s, structures and
improvements to be located in, below and above the public right-
of-way of Vallco Parkway, except that Buch 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, recons~ruct 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 ~lane fifteen (15) feet above the highest point of
the traveled surface of Wolfe Road, cro.sing 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-
..
H291:'"'cZ050
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 Valleo parkway and appurtenances thereto not in excess of
seventy (70) feet in width, to be constructed within the area
shown on~xhibit "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 exc~ of
seventy (70) feet in width, to be constructed with~he 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 amená and modify the Existing
Agreeme.': 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. Þ.s 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 ot the Development Agreement.
The parties hereto acknowledge and agree that the payments
described in paragrap'l 12 of the original Agreement shall
terminate in 1994.
-3-
",.
H 2 9 7 ," é[ 2 0 5 I
5,
deleted in its
in its place:
Paragraph 5 of the original Agreement is hereby
entirety an~ the following paragraph is inserted
"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 registereG mail, return receipt requested,
as follows:
If To city:
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.
heret.o, their
assigns.
This Amendment shall benefit and bind the parties
respective successors, success~rs-in-interest and
7. Except as hereby supplemented and amenåed, the
Existing Agreement shall remain in full force and effect anè, as
hereby supplemented and amended, is ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed thi~
Amendment and supp_ '~ent to Agreement as of the day and year
first above written.
CITY OF CUPERTINO, a municipal
corporation
By
Mayor, city of cupertino
ATTEST:
city Clerk
WESTLAND SHOPPING CENTER, L.P.
By: westland projects, Inc., a
California corporation,
General Partner
By
Its
GPtlZI,4c./5zn-1
-4-
&
M 7 9 11': c" 2 0 5 2
EXHIBIT "Oil -- BOUND SEPARATELY AND ATTACHED
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EXHIBIT E
RETAIL USES
The following uses shall be deemed to be "Retail Uses" under
the provisions of this Paragraph 2.10 of this Agreement:
1. Retail businesses, such as food stores (excluding
convenience markets), drug stores, apparel shops,
variety stores, and hardware stores.
2. Banks, financial institutions, insurance and real estate
agencies, travel agencies, photographic and similar
studies whose primary function is to serve the pUblic
directly.
3. Lodges and restricted membership clubs as subordinate
uses in buildings intended primarily for uses specified
on this Exhibit E.
4. Limited repair services, such as jewelry, domestic
appliances, typewriter and business machine repair
shops.
5. Personal service establishments such as barber shops,
beauty parlors, shoe repair shops, and tailor shops.
6. Commercial Entertainment Centers using, among other
equipment, video game machines, family entertainment
centers, ice rinks and health clubs/sport. connection
facility.
7. Hotels.
8. Full service restaurànts with or without a separate bar
facility, fast food restaurants, with or without a
separate bar facility and any entertainment activities
(e.g. dancing, live music) in association with a full
service or fast tood restaurant.
9. cinemas and indoor theaters.
10. Child care centers, day nurseries and playgrounds
acce..ible to a commercial establishment.
11. Other uses which, in the opinion of the City'. planning
commission, are consistent with the character ot a
General commercial (CG) Zone, are of the same general
character as the uses listed in the above Sections 1
through 10 and are not objectionable by reason ot odor,
dust, smoke, glare, fumes, radiation, vibration, noise,
traffic, or litter.
Page 1 of 2
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M 2 9 7 f:. GE 2 0 5 II
12. Any retail or commercial uses which are located noW or
in the cuture in regional shopping centers, the
operation of which generates sales tax revenue or
similar or equivalent type revenues.
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H297í'tC,é2055
I"ØIlTI3I CRJÐ:!J'IVJm ....-. vg
a.~TY .I
v.TrM 1I'J..CRTC'W ßRK
~
TNnrrI1"'I'TCIf
'1M p.¡rpc:xoo of this do:ument is to dsscrlJ:>e the principles on:! criteria Iohien
will guide the ¡:hysical design for future _ion of the l'Ioqional Showirq
Center, '1M text begins with a descriptioo of the --.I intent on:! _ign
¡:hilosq:ày whien _lish the baseline OJq>IICtations tor the projoct' s visual
quality on:! the moans by which rwrw ðov81c¡mEnt will be integrate:! h=la\ioos1y
with the center'. ...tablished aweannoe.
'1M document then describes ",,",licit design ¡ro;¡ram stardards for distirct
geogra¡:h1cal areas within the cont£ oc:q>lex¡ the "Rose IbIl, " the
Io1olte/VallO> ParI<way st:rMtscape on:! the E>d.t1rq center East ot WOlfs.
~l"""ts which IIQt'VØ to link these _lq>ed ........ into a <>:ihesive presentation
ora then described.
GEneral Dœit,¡n PrUdpIe8:
1) oosign on:! o:NtN:tion shAll maintain the 1l1li81 of vi£ual quality <¡qual
to on:! harnonioos with that ot the exiot1rq ohqpirq oenter,
;¡) Ð<pansions, \oh8re they adjoin _ ex1stirq building, shAll be designe;l
with _..... or similar materia18 on:! similar proportions to the exi5tirq
otruc:ture, to the extent pouibls.
l/ J) New treestan:I1n;¡ ÞJildlrqa m'i oaploy c:olorw, textures, materials on:!
OU'uctural shapes d.1st1nct trc:oI _ of the min mll o:n:x>.II'&e bu1ldirq,
CAilte unique visual identity tor: the tc1ont(s) therein. ~, such
buildin¡s ohall maintain the __ 1l1li81 of quality in design, mterials
on:! .-:utioo evident in the ""in mall bui1dirq.
4) New major <enants IIIiI'J have their COllI 1c:Iontity t..> retlect the WivJmùity
typical of their otI-.er locaticn in tho dMign of IItoretrcnt ontranoés and
w1n:Icw cIeta11irq. 1IcIoIever. the .-ultlng deili9R IIIJ8t oc:q>l.ement on:!
enhance the c:olarw. -.... on:! ....races of the main ohcR>lnq 0II'1tc"
atructure as (leøcribed in ~a¡:N 1 on:! ;/ 1IIxIve.
5) Si_ will be placed in aocordanoe with a ........<lhensive Sign Prtqram
~ thrI:JuItI the City'. Architaotural and Site Approval Ocmnittee,
~J:IHICAL ~1:IIIIo'a 1: IIN ~ _ ....... D"JanIU1l.Y71"n ~y _ "D""II!nf A'Wr~
P<>l1cy~: 'D>e III1lti-t.vel ntail/par tinq atructure is """"iatent with
_ General Plan F""idirq for: sxtrsardinsry structural intensity inclu:l1r>q
mlti-story buildings in the anos bcaJrdsd by WoUs lad, Vallo:> Porkway,
Stevens c:rMk BcW.svard, on:! TIIntau II.......
l.J
RECORDER'S MEMO
FAINT WRITING, TYPING, CARBON
COPIES OR DOT MATRIX PAINTERS
MAKE POOR PHOTOGRAPHIC RECORD
rd'rJ:~~DIX I
: APPENDIX .,.: .,.
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M 2 9 7P~, GE 2 056
cuign Objecti_ I<aL'r&tive - Awendix I
I'oqe -2-
\..J _ic Do8it,p1 Jwo.~1 '!he bJilclirq profile en the "I'œe Bowl" oite W<>.1ld
ret!ect e more !ntaMe ur""'" character, in o:ntr8st to the su!=bon (1"",
proti1e) formt of the exiatirq mall CXJnCOUX'M. To ~ a hJJman oca1e to tho
mid-rIse strUCtures at atreet level, the project \òCIUld ..,p¡asize a ot.ronq
presenœ of rotailirq activities at the street level en Valleo Parkway arr:I
\IoU. Poad I:1i replicatirq the dlaractor of a traditional cÞmtcM1 city
deparbnent store.
'!he løasa1:l1e space is dist1rqu1shed between "Major Tenant" arøas ard "small
ShopI1 tenancies.
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Spec:Hic stæœrdo arr:IlIot:J>a o:
1)
conform with the setbacks irdicated on the .ite OC<hibit; rtIUI"da:I or angled
::omara with display space may be addad to aottGn the otra'q angular forr.s
or the bJildirg, aooontuate ~ or pedestrian features, or to
artificially redUce the lerq>.h of major wall plaM8.
'!he exterior of the tuilclirq lhall Ir.cl\Jde street level w1n:lco1 ~lays,
ontrance(.), awnirqa or other ard1itec:b.l<'al features as part of an OIIWIll
otreetsœ¡:>e theme to create eolar arr:I 1ntere8t. Wirdc:ooI arr:I entzy treatment
into the mall to exc:M:I 51' of tho linoar wall arr:I 2n for major tenants.
'!he w1n:lco1 arr:I door percentage for the southerly olovatien of the major
tenant t=ntirg en \Iou. Poad _11 be 14'. w1n:lco1 and door displays to be
aro;anized in ldentifial>le, """titiw or other pattern.
lkIildirq areas above street 1......1 may be eManoed with clock tc>oIerS.
tamers, tlagø, or d1arqe of material. to create design IntereSt, "n1e
intent 18 to create ard>itectural int8rest oœ¡>.l1Jllentary to tho 1cwor
level arr:I COlMli tho !nt8rest1n;¡ activity of the retail interior of the
bJilclirq to tho atreetacaP8. SI....,t.~,~ ~ectl.crw, outdoor ....tirq and
awnirqa at street 1_1 are ~.
Exterior wall finish palette...y include: Irick, sta'Ie, marble, 1MOOnIY.
G.Y.R.C. panel, ccn:::rete, glaM ar a <X1I>Þination of theoe materials.
lQcterior walla shall include parapeta at the pc!meter of tho tuilclirq to
ecræn po:!<irq areas an!. roottcp equ1pnInt.
All lightirq at %'QOt 1......1 for po:!<irq to be shielded to prevent direct
view of light """"'" !rCZII oft tho .......-t)'.
service areas tor the ..jor tananta to be """*,,ible !rCZII the southom
perimeter emv10s road arr:I ~ or eIJ.1ttst8cI !rCZII view to tho extant
possible.
ScUtherly elevations of major tenants fl8'J eq>lcy lesser quality
ard1itactural features an!. I1Ia'f inoorporata dUtCWlt ...terials !ran thoee
usod on JOore visible elevations, provicled: SIt,
e) that surrQJI1dirq prq>ert1ee are tully c:Ievelq>ed et tho time tuilclirq
pemita are 1swe:I for ..id ""jor Tenant tuil<lir9s;
2)
3)
4)
5)
6)
7)
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H297fW:2057
~i9" Objecti _ lI<orrati.... - ApperdiX I
Page -)-
b) tl1at the orientation of ""id develcpd Þ.1i1cUn;s 1.a ouch that 1_
quality archi~al materials on tho' naighborirq lIl'>cWirq contar
b.Jild.1rgs will rot materially harm ths value of said off. ita
develq:nont.
StOre finishes fra1I detallirq and o!m>lar _ti.. at atreet level, as
descr1œcl .1__ this narrative, &hall be "wrappod" at the b.Ji1dirq
oorners 01'1 _ oouthorly and øastarly per~ . ourficient distan::e
to reWorœ the f1nishø:l aweoran:e of tbo Þ.1i1dirq fran the stnet
_ near~ properties. So.Itharly olovation of ths remain:ler of tbo
Þ.1iJ.din; to have architoc:tural interest prov1dod ~ repetitive
detAilirq and q>en styla vMiOllar raop.
8) 5ignag. may be placed on tho street facirq elew.tieros, !rclude associated
architectural foat1lreS such as carq>i.. or awninç¡B at otnot laval,
j.tti... and 1nseto fran the well plane aI:oYe _ laval and be designed
in the style, color, il1U1!11nat1on, ocript _ aiz. typical of thsir stores
in _ional malls,
9) '!be urdar-Þ.1ild.irq parIdn;¡ area &hall be accessib1. fra1I _ level -
be designed to the ...... otaI'dards as tbo parIdn;¡ _ on ths _t aide of
Wolf. Read. 'II1e lightirq, I:Ielustrado, landscapirq and --.1 proportions
shall be c:onolotent with the O8tablished parIdn;¡ decks adjusted as
'*"""""Y to c:reata a OCIIItortabl. 0I'IYi:ca'IØIt to ths CI.I8tcmor. Ð;c.alatorS
_ elevatorS will CXI'1!'.eCt to all levels and deli""" c:uotanen to th8 mall
and it<l c1rcu1atial oystall.
10) Roof 1evel parItirq otructureø aI:oYe tho retail 1.-...1 will be c:onnec:t.:! ~
ooœlators and elevators aervirq all leYelo of tho pe:ddrq down to the
retail level. 'lbo ext:c'ior of the parItirq otructure will Inoorporate
baluotnde oc:roe.'1irq. 'lbo parIdn;¡ area will be oontigurad to _ as
port of tho Þ.1i1dirq rather than a oeporata ~. Parkin; on major
tc>ante and additional ded< parIdn;¡ <Nf1r 1IIIIj« t.enanta to be ~,
11) At least one mjør architectural en\:%y IIhall be CXII>OttUCted on either .ide
of tbo valloO ParXwey Iri~. '!he major en\:%y to !:Ie desi9r*l to IreaJ( and
add ohadCJw ..lief to the eleva~ and can bo earriad 0Jt « atta<:Nd to
tho alwation,
~Jan SL..---i6. i:
12) 'lbo aidswalJ< area adjoinirq the ValloO ParIaoty frontage of Major Tenant
opaoeo &hall imlude featuree wtUc:h onccur"! O podeotrian activity. Special
li~ and otreet fUrniture..y be used b1t ths pr1>oary futuro 1.a the
inclusion of morà>an1ise cIioplay ,,_ lit the aidewe1J< lino, ...
_ally dopictøl on El<hibit<l 10, lOA, 11, and UA. Win:!DIor displays &hall
__lly be provided at the gro.¡rd floor frontage of ths Wolte Read and
ValloO ParXwey oJ.øvations, and &hall bo used to rr- ..jor enayweys to
tbo ...11 at street w...l.
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H 2 9 7 p.~c~205B
Design Objecti_ Narnti.... - Appen:Iix I
Page -4-
V 13) 'the _11 ~ otr...t 1.....1 area odjo1n1rq vallco Parkway _11 be
configured as an interacti.... pe::Iostrian øpaoe. In Id11tion to w1rða.i
displays characteriotic ot the passi.... pedest<ian expori"""" tor Major
Tenant trontaqes, colortul awnin;s, external ohq>tronta with W"",",l
outdoor eatirq areas, toxl _ carts ani outdoor display ot _..
is ~. !Xtarna1 Bignage, tla<¡s. èanner8, ani otl1er ardút.::tural
t...tur.. """ld rein{oroo the U.....ly "street Market" BR"'oach to de!inirq
the .....11 ohop tront_. Generally, the in_i..... pedestz'ian envlrormMt
"""ld be confined inboard ot the public .ideWalk, exœpt tor certain types
ot _ tumiture cleeigned tor oamr.mity _. the lWts ot wich would
be del1neated ~ distinct pavement \:rea_.
14) O:I1pliznentary otreetscaps to be iMtslled. on the northerly Bide ot Vollco
Parkway ard outdoor eat1rq area, retail or restaurants are eJ"ICØJl'aqCld.
~"~T. )Dv.a. 2: WTmrTW: ~ CDfr!R F.AsT M V1I'JIl'R In\[)
Basi,:, ~~: New retail e>q;>ansion north at the e>dstirq mall or
one, two or thræ level. will be designed to hamonize with the e>dstirq
adjacent b.1ildirq .. dêscr Jbed in the General DB8i9" Pr1noiples,
¡;¡.:Uic _ ani 1Ietha!s,
1) Feature udUtectural entries ani extarnaJ. storett'onts or displaY" at
entri... with or wi\:ho.Jt awn1rqs ani .ignaqe to (%Ute color ani 1:1_.
l.., 2) Ðt¡J1oy parapet ~ to hide rooftop equi¡:onont,
3) 'the Id11tia-...l two levels at deck parkirq over the en-<;¡rade park1nq to œ
designed to the ..... stardatds as the park1nq ded<s on the west .ide or
WOlf. Road. '!he Ughtirq, Ioaluatrade, lan:Iscapirq and general proportions
shall be consistent with the estal>liBhed park1nq dedcs.
4) _19" at the exiBtirq surf""" parkirq uee .-.ltirq mn the proposed
œw dedcs will be npl1c:ate the __ stan:Iatds .. the existirq surf"""
parkirq areas in tcmo ot li< Itirq, IUd""". 00It'bB ani lan:!Ic8plrq.
~1:IATf"'.ILT. .'DD'.a. 11: 1I"'II"JIV ~ AIm Vl.TJ'1"t'\ Dl.ÐftD.V _.____._ ..DR
¡Isi.c DoIÚ91 ~ '!he st%eet and s1dewa1Jc ..... _ the ex1stlrq ani
œw bridges rNvr WOlfe Road ani Vallco Parlcway define a unJ.c;¡u. ercla..... _
strestscape ~ IIh<Wd unity the center en all .idM ot the 1ntenect1on ..
part at the totel deI-'~.
¡;¡.:Uio __~ _ lI"thcðlu
1)
'!he WOlfe 1aod/V&1lCO ~ interøeotion w111 haw te><turod or colored
IUd""" materials. '1!1e .idewa1Jc will !law accsnt: ...ter1ala ani pattemB
cœplelllentory to the 1ntenect1on hardecapo c5e0r:ration.
~irq ..ill have its awn~, wi\:ho.Jt nlllDVal at the ood.tlrq trees
~ >t>ere a>thcdZ«l un.'..- _licit UiQ Pemit ".,..utions. str_
lighUrq, nags ani/a: tennera and otreet furniture may be added to
reWorce the _ at this .... ~ ped.Mtr1.ons.
v
2)
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H297F:Gõ2059
Design Objectives ..=_the - Apperdlx I
P_ -5-
'-..' 3) At the northeast corner _ teature w111 be dee1gned such as a tOJntoiJ\,
ortworlc, f1.o<pl, banners, lardscopirq ar a caubinotion to create a focal
poiJ\t far the Shq:pirq c.n~'. otreet level act1vity focus,
("
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D!J:ectia>ol 1I19no9B: DirectiŒ\ð1 .1c¡nø oholl bo treeston:I.irq. """"""t .ty1.
dev10es ""ia. ....y carTy the logo on:! a-"Fate tenant (0) on:! namo ot the
Fashion ParI< cx:aplex. but shall ~1.. the direct1ona1 nature of the
message, _ rAJII\ber of such devioes throughout the cx:aplex 1& regulated by the
dqee to Io!11m O%tj 1rdlv1duo1 o1~ ~ the p.¡bl1c·. oonvenienœ on:!
safety iJ\ II'OII1rq about the CXl!p1ox, iJ\ the r<>asonable judgement of the city
Staff ,
Bddgo<l: lbe design ot the _ tridqe to Wolfe RDad W1ll teature the """" or
CXIIp1i1rentory erch1tecture as the ex1st11g tr1d;e includirq such features as
roof ðetallirq, neon tr1l1l on:! be at the same ç¡eneraJ. proportìons, especially
Io!1ere the ....-tooth projectirq .1_ .... included,
Lardoc:a¡>1n;¡: New perimeter on:! str.etocape lan:!scapirq areas w111 be of the
same standard .. the estob11sned areas of the CXl!p1ex, w1th the e><ception of
these portions of IØI or redevelcpë tWld.Irq area aescribed iJ\ the above
port1ons Of this Norratl.,. ""im w111 <nXIIJ'US extnardinary tI\oma lan:!scaplrq
ocoordlrq to the Sp9c1!10 Stardords on:! ~ tor each qeo;¡ra¡i>l::01 area.
Alterations, \ot>ere necessitated by the rwt. __k, wculd be carried out to be
hanaUoua with the ex1st.1rq stan:lards to pnoo¡erve the current overall
1ardsoope ~.
misc/o¡op1va1
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1CJOO T,jI"_ ,..~""..
c.'r...· "') (AIJ5001~·!1SS
T~iCP""'''c ,~, ~"H~I)S
FA~ 408, ~·,l·O7;)
mr,o,II:T\\(....r Of TH{ (in CliRI(
~o e.,.;oo
ç",p",,:,nO,(A'f<,O';·eSðO
J~ 8, 1991
Westfield, Ire,
J.ttn: JåIn E. Erdioott
lllll Santa Monica Boulevard
Suite 1400
t.oe Þ.rqel.., California 90025-3348
crT'{ CXXJNCIL J.C1'IaI - ~ OF c:amITIQIS OF IoPE'fCJV1.L OF API'LI=aI
ASN:: '1,908.2, SIQI PR::IGRAK lOR VJ\I.La) FASHIaI PARK, I«:>tn: R:W)
BE'nIœI S'I'EVENS CRD:K e::xJI1:VAAD AND ¡am; 280
J.t their adj~ regular -tin¡ o! Jaruuy 2, 1991, the OIp&rtino
City o:.mc.11 gnntetI 'JOJr appeal per ASN:: -"lutia'l 110. 1571--.de:!
u tollQ,IBf
1-8) stardard AJ:chitectw:al ard Site ~ CCmnittee
cxn!itia'lS to the ectent that !:My do not o::n!lic:t with the
~ial o::rditiorw listad hanin. In the event o! oon!1ict,
tha specific cxn!itiCNI listad beI:ein Ihall prevail.
'lb<I approval is based upcn _ si9n Plan dated JUly 17,
1990, Ø)(t:Opt u my be U8'dod I:ri the o::rditiona .....-nted
harein.
9)
10)
'lb<I ~ II1gn located E the ~ oomor o! sœvena
CtMk Boul_ ard WoUe It>Id ehall be eat bec)c 5 to 10
!eét !tall the e~ ard rà.1ced in he1ght to 12 ft. ~
add! tional IO:II'IJIII8I1t eign lIlY to installed upcn 41>Cp11Wicn O!
the FuhiaI 1'8r!t. Stat! Ihall ep¡=ve location(s) o! the
sign(s) .
Tenante with exterior entnno:M II1all to allowed exterio.-
tluildirq JII::UlItAId.~ with !0ØI8l opproval o! ASN:: lIe!ore
installatia1. Tenante with 50,000 sq. ft. or 1IÐnI ora
exØIpI: !tall this no:¡u1.-nt ard IIhall be allCOllld tIuilcUrq
mcuntad signage with eta!! opproval. stat! approval shall
to _ upcn haight, eetbock, er4 visibility o! the sign.
ll)
APPENDIX II
APPBNDIX '
II
M297?JGE2051
12) M¡ significant <:Iw>;es to previOUllly approvad sign ~
iIhall be fO>:1NÙly revi....., by ASN: prior to the <:Iw>;os
takirq place.
13) Tanonts with 5,000 aq. tt. but 1... than 50,000 aq. ft.
without outs~ ....t:anœs may have "P to tan (10) s~o¡nII in
odditien to those at pruent. n:e signa shall be orionta:!
ala>; Wolt. IIœd ard ala>; Val100 llarl<way ard ahalJ. be
apptQlo'<d by <taft.
14) 'lba IlJlllinai.. tactor tor all signs 8hall not ~ 250 t_
10lli:>erts.
M you are a...... aigna ora proIúbite:l trail beiN;¡ placed en the
bridges. AlIO, statt does ha.... the authority to apptOYe c:hon;¡u in
the directional signs.
Pleose rwiew oc:n1iticnø c:aretUlly. It}'OU have err¡ ~cnø
nqa>:d.I.ng the oc:n1itiaw at a¡¡>roYal pI.MM cx:nUct tho CopIrt»ont of
CCmu\ity I:'IN8lopllEl1t lltatf ~ for clarlfiaoticn.
~
00R:mIY , CH:
erN CIDJ<
ce: Departmont of o:mzrJnity Davalo¡zrant
Departmont of Public worka
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N
ORDINANCE NO. 1936
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO APPROVING AN AMENDMENT TO
l-DA-90, DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF CUPERTINO AND V ALLCO INTERNATIONAL
SHOPPING CENTER, LLC
RECITALS
Whereas, the City Council of the City of Cupertino on July 15, 1991, enacted Ordinance
No, 1540 approving application l-DA-90 authorizing the execution of a Development
Agreement (as provided to Section 65864 et seq. of the California Government Code) between
the City of Cupertino (hereinafter referred to as the City), Westland Properties, Inc. and Westland
Shopping Center, L.P, regarding the Development known as Vallco Fashion Park Center in the
City of Cupertino; and
Whereas, Vallco International Shopping Center, LLC (hereinafter referred to as the
Applicant) is the successor-in-interest to said above described Development and Development
Agreement; and
Whereas, the Applicant to the Development Agreement wishes to anlend the
Agreement, as provided in the First Amendment to the Development Agreement attached hereto
and made part hereof by reference; and
Whereas, the Applicant has formally filed its application seeking the Amendment with
the Director ofPlaoning and Community Development (hereinafter referred to as the Director) as
required by City Municipal Code Chapter 19,116; and
Whereas, the Director has reviewed the Application as required by City Municipal Code
Section 19,116,090; and
Whereas, after notice and public hearing, the City of Cupertino Planning Commission has
reviewed and has recommended approval of said Application at its meeting of April 26, 2004, as
required by Section 19,116,130 of the City's Municipal Code; and
Whereas, the City Council, after notice and public hearing, has considered the Planning
Commission's recommendations at its meetings of April 27, 2004, and May 3, 2004;
Ordinance No, 1936
THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS
FOLLOWS:
I, The City Council finds that all notices required by law have been given,
2, The City Council finds that the application for an Amendment to the
Development Agreement is:
a) Consistent with tile objectives, policies, general land uses and programs
specified in the General Plan, and any applicable specified plan;
b) Compatible with the uses authorized in, and the regulations prescribed for, the
land use district in which the Development is located,
c) In conformity with and will promote public convenience, general welfare, and
good land use practice;
d) Not detrimental to the health, safety and general welfare;
e) Not adverse to orderly development of property, nor to the preservation of
property values;
f) Conducive to promoting and encouraging the proposed reconstruction of the
Development by providing a greater degree of requisite certainty of tile
entitlements secured under the Development Agreement.
3, The City Council finds that the Amendment was subject to an initial study as
required by the California Environmental Quality Act, and that it has no significant impact
on the environment,
4, After careful consideration of the maps, facts, exhibits, testimony and other
evidence, the request for amendment to the Development Agreement as described in the
attachment is approved and the Mayor is autllorized to execute the attached Amendment on
behalf of the City of Cupertino,
5. The sub-conclusions upon which the above findings and approvals are based are
contained in the public hearing record concerning the application as set forth in the minutes
of the Planning Commission meeting of April 26, 2004, and are incorporated by reference as
though fully set forth herein,
6, The City Clerk is directed to record with the County Recorder of Santa Clara
County a certified copy ofthis Ordinance and attachment and to cause this Ordinance to be
published as required by law,
2
Ordinance No, 1936
INTRODUCED at a regular adjourned meeting of the City Council ofthe City of Cupertino the
27th day of April 2004 and ENACTED at a regular meeting of the City Council of the City of
Cupe1iino the 3rd of May 2004, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
James, Kwok, Lowenthal, Sandoval, Wang
None
None
None
ATTEST:
APPROVED:
~~ndl
City Clerk
3
EXHIBIT C
The following are some of the key provisions of the Development Agreement:
> Allows a buildout of 1,645,700 net rentable square feet of retailing space,
(page 3) Existing and approvedl proposed square footage is shown
below:
EXISTING SHOPPING CENTER SQUARE FEET
Sears 280,185
Macv's 176,962
JC Penney 202,360
Mall 477,633
Restaurants 18,460
TOTAL EXISTING 1,155,600
PROPOSED
Retail @Wolfe entry 6,700
Retail @upper level addition -4,000
Cinema 80,500
Restaurant @north lot 9,000
Wolfe Road retail 34,000
Valko Parkwav retail 11,500
WolfelStevens Creek retail 12,000
Rose Bowl retail 105,000
Lost Gross Leasing Area due to stairs -28,000
and food court .
SUBTOTAL PROPOSED CAMPUS 226,700
RETAIL AREA
TOTAL PROPOSED RETAIL 1,382,300
Wolfe Road Residential 204 units
Northwest Area Residential ? units (being revised)
Proposed Hotel Approximately 211 rooms
)- Vests permitted uses, density, height and size of buildings, codes, traffic
mitigation measures and provision for public improvements as set forth in
the General Plan, project approvals and 24-U-87 (a use permit approved in
1987) (pages 9-11), (Vesting means that Valko has the right to implement
the terms of the agreement as long as the agreement is in effect), Many of
the vested elements specified in the development agreement were part of
prior approvals, Some of the vested elements are:
)- Vests General Plan policies from the1989 General Plan (attached), Valko
would be entitled to a share of the remaining 1000 hotel rooms vested in
Exhibit C
Page 2
the General Plan for the entire Vallco Park area - 713 remain, Residential
uses are allowed, Building heights are not to exceed eight stories, with
some exceptions,
)- Requires use permit review for development outside of "approved future
development" on Exhibit B, (page 11) Use permits are also required for
Non-Retail Uses (page 34), such as the residential uses in the Rosebowl
and northwest areas,
)- Retains the ice rinkl child care facility and establishes a park and ride and
transit facility (pages 13-17)
)- If building a 3,500 seat cinema complex, reduces buildout by 100,000
square feet if on the Westside and by 45,000 if on the Eastside (pages 18-
20)
)- Previously obligated to make an Annual Payment of $67,000, which
expired in 1994, Begin payment of an Annual Payment when Payment
Threshold of 1,310,700 square feet is reached, not to exceed $150,000;
continues for 15 years and is adjusted on the 5th and 10th anniversary of
the Payment Threshold date (pages 21-25)
)- Apply future General Plans, zoning codes, etc, if they do not conflict with
the Vested Elements, For example, the one current General Plan policy,
vs, the 1989 General Plan, being imposed is the 1:1 setback ratio from
Wolfe Road and 1.5:1 ratio along Stevens Creek Boulevard, Another
current regulation, residential density, was imposed on the Rosebowl Site
from the Heart of the City Plan, since no densities were specified in the
vested approvals (page 25),
)- Processes building permits and conduct design review of specific projects,
Design review is limited to review by the Director of Community
Development to determine consistency with the Design Objectives
Narrative and Use Permit conditions approved as part of 9-U-90 and sign
criteria (pages 26-28),
)- Elect to participate in a Housing Mitigation program enacted within two
years from the Effective Date of the Agreement. A Housing Mitigation
Program was enacted within two years of the Effective Date of the
Agreement, and the 204 Rosebowl units are subject to it (page 44),
G:plmming/pdreportjVallco Oev Agreement lœ'f provisions
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l.arnd U~efCOMmunitv Character
Special Planning Areas
Town Center
Function: A large-scale focal point for Cupertino in the Citýs
geographical and historical center,
Location: The southeast quadrant at the intersection of De Anza
and Stevens Creek Boulevards
SEE POLICY 2-53
SEE 4-U-86
2-Z-83
SEE POLICY 2-1
DevelopmentActivities: Offices, stores, entertainment busi-
nesses, and restaurants will be contained in buildings with
varied form, combined with generous plazas, The Cali Mill
could be replaced by landmark multiple-story buildings with
a variety of shapes if uaffic studies find this to be feasible,
Building Heights: Maximum of eight stories,
Town
Center
Development Intensity: Regulated by the uip end distribution described in Table 2-A,
Valleo Park
Function: Mixed use, highly urbanized regional commercial
and employment center,
Location: Area bounded by Wolfe Road, Stevens Creek Boule-
vard, Homestead Road and the easterly Ci ty Limit line,
Development Activities: Valko Fashion Park, the multiple-
P k story financial center, and the high-rise corporate office build-
t't. '::¥;~;:%;:::::<:>:;:1~'.:<::~&~:~~:r ar ing are in place. A hotel co:nplex, with a maximum of 1,000
~i ,-,m.._ "."'""" rooms, a conference/ convention center and related shops/ serv-
ices and additional office, industrial, residential, and other ancillary uses may be located
in the Valko Park Planning Area,
SEE 1-Z-83
SEE POLICY 2-1
Building Heights: Generally not to exceed eight stories with the exception of the hotel,
which is unspecified. Buildings may exceed normal height limits to emphasize Valko
Park's role as a major center, Final approved heights of all buildings, including the hotel,
will be determined along with development applications,
Development Intensity: Intensity is regulated by the following floor area ratios:
Commercial
Office
Ind ustrial
,25 FAR
,37 FAR
,33 FAR
The "Lester" property located in the northeast quadrant of Tantau Ave and Stevens
Creek Blvd, and the "Old Hotel Site" located in the southeast quadrant of Prune ridge Ave
and Wolfe Road have no development credits because development intensity was trans-
ferred to other sites,
Valko Park LId, is allocated 300,000 sq, ft. of additional commercial space and 450,000
sq, ft. of additional office and indusuial space over and above the building areas allowed
by designated FARs, The additional building area may be allocated to areas located east
of Wolfe Road, south of Pruneridge Ave, and north of Stevens Creek Boulevard, Valko
Park LId, is encouraged to seek agreement from non-Vall co Park owners regarding the
allocation of the additional space,
CUPERTINO GENERAL PLAN
Exhibit D
Attachment
AMENDMENT TO DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF CUPERTINO AND V ALLCO
INTERNATIONAL SHOPPING CENTER, LLC (Successors-in-Interest)
RECITALS
Whereas, the City Council of the City of Cupertino on July 15, 1991
enacted Ordinance No, 1540 approving application 1-DA-90, authorizing
the execution of a Development Agreement (as provided to Section 65864
et seq, of the California Government Code) between the City of Cupertino
(hereinafter referred to as the City), Westland Properties, Inc, and
Westland Shopping Center, L.P, regarding the Development known as
Vallco Fashion Park Center in the City of Cupertino; and
Whereas, Valko International Shopping Center, LLC (hereinafter referred
to as the Applicant) is the successor-in-interest to said above described
Development and Development Agreement; and
Whereas, the parties to the Development Agreement wish to amend the
Agreement, as provided in the First Amendment to the Development
Agreement attached hereto and made part hereof by reference; and
Whereas, the Applicant has formally filed its application seeking
said amendment with the Director of Planning and Community
Development (hereinafter referred to as the Director) as required by City
Municipal Code Chapter 19,116; and
Whereas, at its regular meeting of ,2005, the
City Council of the City of Cupertino enacted Ordinance No,
authorizing the execution of the Amendment.
Now Therefore, it is hereby agreed by the parties as follows:
1, Section 1,2 of the above described development agreement is hereby
amended to extend its term to August 15, 2009,
Section 2,6,5 is added to read:
2, Conditions with Regard to Hotel Site, Future development for the
approximately two acre site located at the northeast portion of the
Property, currently labeled "Proposed Sports Connection" in Exhibit B of
Page 2
the Agreement, shall be developed for a minimum 100-room hotel and
ancillary services, Should the Development Agreement expire prior to
development of the site for said hotel, another instrument guaranteeing
hotel development on the site shall be agreed upon by the applicant and
the City,
3, All other terms of the Development Agreement remain in full force and
effect,
4, This Amendment, together with Ordinance No, shall be
recorded with the County Recorder of Santa Clara County,
IN WITNESS WHEREOF, the City of Cupertino and Valko
International Shopping Center, LLC have executed this _
Amendment as of the date hereinafter above written,
CITY OF CUPERTINO, A
MUNICIPAL CORPORATION
V ALLCO
INTERNATIONAL
SHOPPING CENTER,
LLC
BY:
BY:
Patrick Kwok, Mayor
Alan Wong, Owner
ITS Owner
Attest:
Kimberly Smith
City Clerk
Approved as to form:
Charles T, Kilian, City Attorney
G:planning/rnisc/vallco amendment 10-18-05
Vallco Development Agreement Extension
Phone CallI 0/3/05
Opposed to extension of development agreement. Construction is
too noisy and it's just too long. She intends to speak at the
hearing.
Susan Chen
10143 Colby
BE
Ciddy Wordell
Page I of I
C: t Wi! ODS it 9
R~.~ Oft~v ~ ~;
From: Kiersa Witt on behalf of City of Cupertino Planning Dept.
Sent: Friday, October 14, 2005 8:12 AM
To: Ciddy Wordell
Subject: FW: Valleo Development Agreement Extension
-----Original Message-----
From: Jennifer Griffin [mailto:grenna5000@yahoo.eom]
Sent: Thursday, October 13, 2005 5:55 PM
To: City of Cupertino Planning Dept.
Cc: grenna5000@yahoo.eom
Subject: Valleo Development Agreement Extension
Dear Planning Department:
I was surprised to see the Vallco Development Agreement Extension item on the October 18, 2005 City
Council meeting agenda (Item #9), when it was only heard last Tuesday, October II
at the Planning Commission meeting. I believe Mayor K wok is correct in having this item continued to a
later City Council meeting.
This item is a very important measure to consider, and it might seem that it was being rushed through
the meetings before the elections and before there is further study of its implications.
There is still a great deal of confusion about the ramifications of this proposal, and, also, how it is
connected to the other Vallco request to split a lot for a hotel by the Vallco Macys parking lot.
These were two separately numbered items in the October II Planning Commission Agenda,
but yet, they were both presented at one time, making it seem they were one measure and possibly
dependent on each other. Many audience members were confused as to the ramifications of two
measures, and several of the Planning Commissioners seemed to have questions about how the two
items were connected.
I would hope that this Vallco Development Agreement can be studied in greater detail before a decision
is rendered upon it. This would include notifying the community as to the consequences of acting upon
this Extension. Also, the hotel lot petition needs to be studied further as was evidenced by questions the
Planning Commission had about this request. .
It is hoped that these two items will not be rushed to be voted upon until there is further study.
I commend Mayor Kwok for requesting that Item number 9 ofthe October 18, 2005 City Council
meeting be heard at a later time.
Thank you very much.
Sincerely,
Jennifer Griffin
10/17/05