20-158 Unmesh Rathi and Preeti Rathi, Agreement Regarding Offer of Dedication & Waiver of Future Reimbursement, Right of Entry, and License to Use Property, 10260 Orange Avenue, APN 357-19-OFFICIAL BUSINESS.
Document entitled to free
recording per Government
Code § 6103 and § 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Attn: Director of Public Works
SPACE ABOVE THIS LINE FOR RECORDING USE
AGREEMENT REGARDING OFFER OF DEDICATION & WAIVER OF FUTURE
REIMBURSEMENT, RIGHT OF ENTRY, AND LICENSE TO USE PROPERTY
This Agreement Regarding Right of Entry, License, Offer of Dedication and Waiver of Future
Reimbursement ("Agreement") is made and effective this 1B mayday of bc� b , 202o by
Unmesh Rathi and Preeti Rathi ("Owner") and the City of Cupertino, a municipal corporation ("City").
Owner and City may each be referred to as a "Party," or collectively as the "Parties."
RECITALS
A. Owner is the owner in fee of real property with a street address of 10260 Orange Avenue
in the City of Cupertino, County of Santa Clara, designated as Assessor's Parcel No. 357-19-034, more
particularly described in Exhibit A (the "Site").
B. Section 14.04.110 of the Cupertino Municipal Code provides that if the City or another
property owner installs improvements that benefit a property, the owner of the benefitted property is
required to reimburse the City or the property owner for its reasonable share of the costs of such
improvements when the benefitted property owner seeks a land use entitlement from City. Section
18.56.040 of the City of Cupertino Municipal Code imposes a similar reimbursement requirement. Both
sections provide, however, that if a property owner dedicates necessary right-of-way to the City without
charge, the City may enter into an agreement with the owner to waive future reimbursement
requirements.
C. City is in the process of trying to improve the walkability of routes to schools,
particularly those areas lacking curb, gutter and sidewalk. The Orange Avenue Sidewalk project (the
"Project") will construct those improvements. A portion of the Site is among those areas the City
desires to improve. Owner agrees to extend a right of entry to City and a license to use the Dedication
Area to construct improvements and allow public use of those improvements until the City owns the
Dedication Area.
D. Owner has agreed to dedicate to City that certain approximately 263 square foot portion
of the Site as depicted in the diagram attached hereto and incorporated herein as Exhibit B and more
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particularly described in the legal description attached hereto and incorporated herein as Exhibit C (the
"Dedication Area"), in consideration of the City's limited waiver of future reimbursement requirements,
and to grant City a right -of -entry to the Dedication Area.
NOW THEREFORE, in consideration of the mutual promises, approvals, and covenants made
by the Parties and other considerations, the value, adequacy and receipt of which are hereby
acknowledged, the Parties agree as follows:
1. Right of Entry. Subject to the terms and conditions of this Agreement, Owner hereby
grants to City, its contractors, subcontractors, employees, agents, invitees and the public a non-exclusive
right to enter the Dedication Area for the purpose of constructing the Project on the Property and the
right to remove any improvements presently within the Property to allow for construction of the Project,
as well as to allow the public use of the Dedication Area upon completion of the Project on the Property.
This Right of Entry shall expire and terminate upon the recordation of the City's acceptance of the
Offer, as set forth in section 4.3 below.
2. Offer of Dedication. Owner does hereby irrevocably offer to dedicate in fee the
Dedication Area for street, highway, public utility, public pedestrian, landscaping and any other public
purpose (the "Offer"). The Offer is irrevocable and shall be absolutely binding upon the Owner, its
heirs, successors, assigns, and all persons claiming an interest in the Site through them.
3. Condition of Title: Removal of Liens. Owner shall work in good faith with City to
remove any and all encumbrances or liens (other than the lien for current taxes not yet due and payable),
including any deed of trust securing the obligation to pay a mortgage loan, encumbering all or any
portion of the Dedication Area. With respect to deed(s) of trust, City, at its cost, shall prepare and
provide to Owner the forms of partial reconveyance instrument(s) required to remove the Dedication
Area from the lien(s) of such deed(s) of trust. The removal of all such liens, including lien(s) of deed(s)
of trust, shall be a condition precedent to the effectiveness of City's waiver of the right to future
reimbursement as set forth in Section 6 below.
4. Time and Manner of Acceptance.
4.1 The Offer may be accepted by Resolution of the City Council of the City of
Cupertino and not in any other manner. Any purported acceptance of the Offer by or on behalf of the
City, other than in this manner, shall be null and void and of no force or effect.
4.2 The Offer shall remain in effect until accepted by Council Resolution. The Offer
may not be terminated, or the right to accept the Offer abandoned, except by Council Resolution in the
same manner as prescribed for summary vacation of streets or highways by Part 3 (commencing with
Section 8300) of Division 9 of the Streets and Highways Code.
4.3 Upon acceptance of the Offer, the City shall mail a copy of its Resolution of
Acceptance to the then -owners of the Site at the address shown on the latest County of Santa Clara
secured assessment roll and at the address listed in the Offer for notices.
5. Use of Property Prior to Acceptance of Offer. Owner agrees that it will not use the
Dedication Area in any way that will interfere with the use of the Dedication Area for public right-of-
way.
-2-
6. Limited Waiver of Reimbursement Requirement. Subject to satisfaction of the lien
removal condition set forth in Section 3 above and the limitations of this Section 6, upon City's
acceptance of the Offer, City hereby agrees to waive any and all future reimbursements for the costs of
any improvements installed by City or its contractors on the Dedication Area ("City Work"), including
reimbursements required by Sections 14.04.100 and 18.56.040 of the Cupertino Municipal Code, which
may be charged to Owner at such time as Owner obtains a future land use entitlement with respect to the
Site. This waiver of right to future reimbursement shall include only the costs of the City Work and
shall remain in effect for twenty-five (25) years following City's acceptance of the Offer.
Notwithstanding any other provision hereof to the contrary, Owner shall remain obligated to pay any
development impact fees, including roadway impact fees, and the costs of any other improvements
required in connection with the applicable land use entitlement. Further, in recognition of the fact that
the City Work improvements will have a limited useful life, following expiration of the 25-year period,
City shall have the right to require Owner to fund the cost of reconstructing any public improvements
within the Dedication Area that City could then lawfully require Owner to fund in the absence of this
Agreement.
7. No Liens. The City will not permit to be filed or enforced against the Property, or any
part thereof, any statutory lien for labor or materials (including without limitation any mechanics or
materialmen's lien) or any claim for damages arising from City's use of, or activities on the Property
with respect to the Project.
8. Indemnity. City shall indemnify, defend, and hold harmless Owner and Owner's officers,
agents and employees against any and all liability, claims, actions, causes of action or demands arising
out of, connected with, or caused by City or City's employees, agents, independent contractors,
companies, or subcontractors use of the Property, except to the extent of Owner's negligence or willful
misconduct.
9. Insurance. City shall maintain, or require its contractor to maintain, commercial general
liability and comprehensive automobile policies that include, cover and insure the work performed on
the Project and the terms and conditions of this Agreement, including the activities or operations of any
contractor and its employees, agents, representatives and subcontractors under this Agreement.
10. Notices. Any notices which either Party may desire to give to the other Party under this
Agreement must be in writing and may be given either by (i) personal service; (ii) delivery by a
reputable document delivery service, such as but not limited to, Federal Express, which provides a
receipt showing date and time of delivery; or (iii) mailing in the United States Mail, certified mail,
postage prepaid, return receipt requested, addressed to the address of the Party as set forth below or at
any other address as that Party may later designate by notice:
To City: City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attention: Public Works Director
-3-
With a copy to: City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attention: City Attorney
To Owner: Unmesh and Preeti Rathi
1320 Pauline Drive
Sunnyvale, CA 94087-3524
11. Agreement Runs with Land; Recordation. The provisions of this Agreement shall inure
to the benefit of and be binding upon the owners of the Site and their heirs, successors or assigns, and
any other person claiming an interest in the Site through them. Upon execution, this Agreement shall be
recorded in the Official Records of Santa Clara County.
12. Waiver of Further Compensation. Owner hereby expressly and unconditionally waives
any and all right to claim, demand, or receive any further compensation for the Dedication Area which
Owner may be eligible to receive under the California Relocation Assistance Act (Government Code
§7260, et seq. ), Article 1, § 19 of the California Constitution, the California Eminent Domain Law
(Code of Civil Procedure §1230.010, et seq.), and/or the California Code of Regulations, Title 25 or
other applicable local, state, or federal statute, ordinance, regulation, rule, or decisional law (collectively
"Compensatory Laws"), including, but not limited to, the fair market value of the Dedication Area,
severance damages, loss of goodwill, loss of profits, or relocation benefits and assistance, or claims for
unreasonable precondemnation activities or inverse condemnation, or any other compensation as a result
of the Parties' agreements hereunder or the City's acceptance of the Offer. Furthermore, Owner hereby
expressly releases the City of Cupertino, and its respective officials, officers, employees,
representatives, successors and assigns, from any liability, responsibility, or obligation to pay any
further compensation for the Dedication Area which Owner may be eligible to receive under the
Compensatory Laws as a result of City's acceptance thereof.
13. Authority to Execute. The person or persons executing this Agreement on behalf of
Owner warrants and represents that he/she/they has/have the authority to execute this Agreement on
behalf of Owner and warrants and represents that he/she/they has/have the authority to bind Owner to
the performance of its obligations hereunder.
14. Entire Agreement. This Agreement embodies the entire integrated agreement and
understanding between the Parties hereto. There are no other agreements or understandings, oral or
written, with reference to the subject matter hereof that are not merged herein and superseded hereby,
except as set forth herein above.
15. Amendments. This Agreement may only be terminated or modified in a writing executed
by both Parties and recorded in the Official Records of Santa Clara County.
16. Governing Law, Venue. This Agreement shall be construed and enforced in accordance
with the laws of the State of California, without reference to choice of law provisions. Any legal actions
under this Agreement shall be brought only in the Superior Court of the County of Santa Clara, State of
California.
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17. Interpretation. This Agreement shall be construed according to its fair meaning, and not
strictly for or against any Party. This Agreement shall be deemed to have been prepared jointly by the
Parties hereto, and the terms of this Agreement have been negotiated by the Parties and the language
used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual
intent. This Agreement shall be construed without regard to any presumption or rule requiring
construction against the Party causing such instrument or any portion thereof to be drafted, or in favor of
the Party receiving a particular benefit under the Agreement. No rule of strict construction will be
applied against any Party hereto. When used herein, the singular form of the word includes the plural
form in appropriate context. Use of the term "including" is meant to be without limitation, such as
"including but not limited to" or similar. Section headings in this Agreement are for convenience only
and are not intended to be used in interpreting or construing the terms, covenants or conditions
contained in this Agreement.
18. No Partnership. Nothing herein contained shall be construed to create a joint venture or
partnership or to create the relationship of principal and agent or of any association between City and
Owner.
19. Further Cooperation. Each Party hereto agrees to execute any and all documents and
writings which may be necessary or expedient and do such other acts as will further the purposes hereof.
20. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of
the respective successors, heirs, and assigns of the Parties.
21. No Third -Party Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit of the signatory Parties and their successors and assigns. No other person shall
have any right of action based upon any provision in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year
first written above.
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CITY: OWNER(S):
CITY OF CUPERTINO, a California Unmesh Rathi,
municipal corporation Preeti Rathi
By: By:
Deborah Feng, City M a r Name: �.1t✓l�rS
[Notary Acknowledgment Required] Title: [if
applicable]
APPROVED AS TO FORM:
By:
Heather Minner, City Attorney
ATTEST:
By:
Kirsten Squarcia, Ci Clerk
[Notary Acknowledgment Required]
By:
Name: i
Title: [if
applicable]
[Notary Acknowledgment Required]
ACKNOWLEDGMENTS
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF 5-,6n»A L'- , 9-A
OnOe-to6ejp._ t.* _, 200>before me, D&A-41 Akin LCL-"a" , Notary Public,
personally appeared uis t" ,5 L "T i.l : , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my han d o icial seal.
DARYL R081N WENRICH
Notary Public - California
Signature: (seal) I ; Santa Clara County
Commission p 2317140
My Comm. Expires Jan 21, 2024
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF Sm-rrA Cc,-n,*
On l$ 2079> before me,.D&P.4L,Notary Public,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and pfficial seal.
Signature: /K J Gt (seal) DARVL ROBIN WENRICH
Notary Public - California
Santa Clara County
Commission M 23171ai)
L
y Comm, Expires Jan 2I, 2024
Acknowledgment
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State of California
County of Santa Clara
On 3 before me, Lauren Sapudar , Notary Public,
(Here insert name and title of the officer)
personally appeared :Debo/-'r' h Fern q
who proved to me on the basis of satisfactory evidence to be the pqerso (s) whose ma-b(s)d/are subscribed to
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which the ers (s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
LAUREN SAPUDAR
WITH S S my hand and official seal. `; Notary Public - California Z
' Santa Clara County, is
Commission # 2247155
My Comm. Expires Jun 22, 2022
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EXHIBIT A
Legal Description of Site
For APN/Parcel ID(s): 357-19-034
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, COUNTY
OF SANTA CLARA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Lot 1, as shown upon that certain Map entitled, "TRACT NO. 97 Map of Noonan Subdivision, Unit no.1,"
which Map was filed for record in the office of the Recorder of the County of Santa Clara, State of
California, on April 13, 1939, in Book 3 of Maps, at page(s) 43.
Exhibit A
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* No.8720 * LEGEND
1 IN. = 30 FT. POB POINT OF BEGINNING
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14
1570 Oakland Road (408) 487-2200
San Jose, CA 95131 HMHca.com
SHEET 1 OF 1
EXHIBIT "B"
PLAT TO ACCOMPANY DESCRIPTION:
RIGHT OF WAY
CUPERTINO CAUFORNIA
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June 18, 2018
HMH 4893.03.441
Page 1 of 1
EXHIBIT "C"
RIGHT OF WAY
REAL PROPERTY in the City of Cupertino, County of Santa Clara, State of California, being a
portion of Lot 1 as shown on that Map of Tract 97 filed for record on April 3, 1939, in Book 3 of
Maps, page 43, Santa Clara County Records, described as follows:
BEGINNING at the southwesterly comer of said Lot 1, being on the general easterly line of
Orange Avenue;
Thence along said general easterly line, South 89°03'08" East, 5.00 feet, to a line parallel with
and 25 feet easterly of the centerline of Orange Avenue;
Thence along said parallel line, North 00054'52" East, 44.99 feet;
Thence along a tangent curve to the right, having a radius of 15.00 feet, through a central angle
of 90°02'00" for an arc length of 23.57 feet, to the southerly line of Olive Avenue;
Thence along said southerly line and the easterly line of Orange Avenue the following two
courses:
1. Thence southwesterly, along a non -tangent curve to the left, having a radius of 20.00
feet, whose center bears South 00056'52" West, through a central angle of 90002'00" for
an arc length of 31.43 feet;
2. Thence South 0005452" West, 39.99 feet, to the POINT OF BEGINNING.
Containing 263 square feet, more or less.
This legal description was prepared by me or under my direction in accordance with the
Professional Land Surveyors Act.
Date: V (t "I
489303LD57 - ROW.docx
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T` a L. r3iorgetti, LS 8720
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No.8720
* *I
1570 Oakland Road I San Jose, California 95131 1 (408) 487-2200 1 (408) 487-2222 Fax I www.HMHca.com
RESOLUTION NO.20-132
A RESOLUTION OF THE CUPERTINO CITY COUNCIL ACCEPTING THE
DEDICATION OF PRIVATE PROPERTY RIGHTS TO 10260 ORANGE AVENUE
FOR THE CONSTRUCTION OF SIDEWALKS ON ORANGE AVENUE AND
WAIVING FUTURE REIMBURSEMENT OF CITY -FUNDED PUBLIC
IMPROVEMENTS
WHEREAS, the City desires to construct sidewalks on Orange Avenue in areas
where the sidewalks are currently discontinuous; and
WHEREAS, section 14.04.110 of the City of Cupertino Municipal Code allows the
City to provide a waiver of future reimbursement of the cost for City -funded public
improvements when the property owner donates the property rights necessary for the
improvement project; and
WHEREAS, a property owner has donated property rights along their property
frontages necessary for the construction of the Orange Avenue Sidewalk Improvements
Project.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Cupertino hereby accepts the dedication of property to 10260 Orange Avenue and as
further described in the Agreement Regarding Offer of Dedication and Waiver of Future
Reimbursement, attached as Exhibit A.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 17th day of November, 2020, by the following vote:
Vote Members of the City Council
AYES:
Scharf, Paul, Chao, Sinks, Willey
NOES:
None
ABSENT:
None
ABSTAIN:
None
Resolution No. 20-132
Page 2
SIGNED:
r 11 /23/2020
Steven Scharf, Mayor Date
City of Cupertino
ATTEST:
Kirsten Squarcia, City Clerk
11 /23/2020
Date