City Council Resolution Nos. 22-146,-147,-148,-149 RESOLUTION NO. 22-146
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
ADOPTING AN ADDENDUM TO A PREVIOUSLY ADOPTED MITIGATED
NEGATIVE DECLARATION AND APPROVING A DEVELOPMENT PERMIT TO
DEMOLISH APPROXIMATELY 44,000 SQ. FT. OF EXISTING COMMERCIAL
SPACE AND THE CONSTRUCTION OF THREE MIDCED-USE BUILDINGS WITH
APPROXIMATELY 41,268 SQ. FT. OF COMMERCIAL SPACE AND 206
CONDOMINIUM UNITS AND REQUESTING A DENSITY BONUS,AND
DENSITY BONUS WAIVERS FOR HEIGHT, SETBACKS, AND COMMON OPEN
SPACE LOCATED AT 10145 N. DE ANZA BLVD, 10118 BANDLEY DRIVE (APN:
326-34-066, 326-34-043)
SECTION I: PROTECT DESCRIPTION
Application No,; DP-2022-001
Applicant: Larry Wang (Tectonic Builders Corp.)
Property Owner: De Anza Venture, LLC
Location: 10145 N.De Anza Blvd, 10118 Bandley Drive (APN: 326-34-066, 326-
34-043)
SECTION II: FINDINGS FOR DEVELOPMENT PERMIT:
WHEREAS, the City of Cupertino received an application for a Development Permit as
described in Section I of this resolution; and
WHEREAS, after consideration of evidence contained in the entire administrative record,
at the public hearing on September 6, 2016, the City Council adopted Resolution No. 16-
091, adopting a Mitigated Negative Declaration for the Marina Development; and
WHEREAS, environmental analysis and peer reviews were conducted by Placeworks,
Inc. pursuant to the requirements of CEQA, and an addendum to the Mitigated Negative
Declaration was prepared which found that no new or substantially increased significant
environmental effects, and
WHEREAS,on November 10, 2022 the Planning Commission recommended on a 5-0 vote
that the City Council adopt the Addendum to the Mitigated Negative Declaration (EA-
2015-05) and approve the Development Permit (DP-2022-001) in substantially similar
form to the Resolution presented (Resolution No. 6964), approve the Architectural and
Site Approval Permit (ASA-2022--002) in substantially similar form to the Resolution
presented(Resolution No. 6965), approve the Tree Removal Permit (TR-2022-026) in
substantially similar form to the Resolution presented(Resolution No. 6967) and approve
ResOkltion No.22-146
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the Vesting Tentative Map (TM-2022-003), in substantially similar form to the Resolution
presented (Resolution No. 6966); and
WHEREAS, all necessary public notices having been given as required by the City of
Cupertino Municipal Code and the Government Code, and the Planning Commission
held at least one public hearing in regard to this application, and
WHEREAS, on December 6, 2022, the City Council held a public hearing to consider the
Project; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Development Permit.
WHEREAS, the analysis in the Addedum prepared by Placeworks, Inc. indicates that the
proposed project would not require major revisions to the Mitigated Negative
Declaration adopted on September 6, 2016, due to new or substantially increased
significant environmental effects. Furthermore, there have been no substantial changes
with respect to the circumstances under which these minor modifications would be
undertaken that would require major revisions of the Adopted Mitigation Negative
Declaration due to new or substantially increased significant environmental effects, and
there has been no discovery of new information of substantial importance that would
trigger or require major revisions to the Mitigated Negative Declaration due to new or
substantially increased significant environmental effects.
WHEREAS, the adopted Mitigated Negative Declaration adequately identifies all
environmental effects and adequate mitigation measures for the proposed modifications
to the previously approved project. Therefore, no subsequent or supplemental Mitigated
Negative Declaration is required prior to approval of the proposed project.
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposed development, at the proposed location, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
The project is consistent with the General Plan and Zoning Ordinance and has been designed
to be cornpatible with and respecffid of adjoining land uses. Additionally, all mitigation
treasures that are within the responsibilihj and jurisdiction of the City have been adopted and
will be rude conditions of approval to mitigate potential inTpacts to a less than significant
level. Therefore, the project will not be detrimental or injrrrioits to properties or 1 rnproveinen ts
in the vicinity, and will not lie detrimental to the public health, safetij, general zvelfare, or
convenience.
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2. The proposed development wi11 be located and conducted in a maruier in accord with
the Cupertino Comprehensive General Plan and the purpose of the City's zoning
ordinances.
The General Plan land itse designation for the property is ConwierciallafficelResidential. The
proposed use is consistent with the General Plan. The subject property is zoned as Planned
General ConnnerciatlResidential with a further desip7ation as a Prior•i(t Housing Element
Site. The proposed development has niet the applicable development standards of the Heart of
the City Specific Plan and is requesting a density bonus and density bonus waivers for certain
general plan and Heart of the City development standards as permitted in the City of
Cupertino's Municipal Code Chapter 19.56 Density Bonus. Therefore, the proposed
development is consistent with the purpose of the City's zoning ordinance.
3. The applicant has requested a density bonus. Pursuant to Cupertino Municipal Code
Section 19,56.070, before approving an application that includes a request for density
bonus, incentive, parking reduction and/or waiver, the decision-making body shall
make the following findings, as applicable:
a) A finding that the residential project is eligible for the density bonus and any
incentives, parking reductions or waivers requested.
The application is a for a density bonus project that provides for approxirnately 20% of its
base density as Below Market Rafe Housing. As 20% of the units on-site will be limited to
niedianlmoderate Inconie residents, it is eligible for a 15% density lroritrs.
b) A finding that any requested incentive will result in identifiable, financially
sufficient, and actual cost based on the financial analysis and documentation
provided.
No incentives are requested as part of the project, so the finding is not applicable.
c) if the density bonus is based all or in part on donation of land, a finding that all
requirements included Section 19.56.030C have been met.
The density bonus is riot based on the donation of land, so the finding is not applicable.
d) If the density bonus is based all or in part on the inclusion of a childcare facility, a
finding that all requirements included in Section 19.56.030 (D) have been met.
The density bonas is not based on the inclusion of a child care facility, so the finding is not
applicable,
e) If the density bonus or incentive is based on a condominium conversion, a finding
that all the requirements included in Section 19.56.030 (E)have been met.
The density bonus is riot based on it condontiniuni conversion, so the finding is riot
applicable.
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f) If the incentive includes mixed-use development, a finding that all requirements
including in Section 19.56.40 (B) (2) have been met.
While the project is a mixed-lase developnient, the density bonus is not based on the inixed-
used development as an incentive, so the finding is not applicable.
g) If a waiver is requested, a finding that that the development standards for which
the waivers are requested would have the effect of physically precluding the
construction of the housing development with the density bonus and incentives
or concessions permitted.
The developnient standards for the side setback, height, and coninion open space zvotald
physically prechide the developinent. These development standard limitations could affect
the project by a considerable loss of units, up to 30 units, which nnany inay include those
designated as BMR.
h) If a reduction in off-street parking standards for an eligible housing development
is requested.
Since at least 10% (in this case 20%) of the total base residential units of the housing
development 7voiild be sold to persons and families of nzoderate inconie, and al units ill the
development are offered to the piiblic jar pit rchase,as defined in Section 50093 of the Health
and Safety Code, State Law allows a reduction in parking standards, which this project has
facet.
4. Since the applicable findings required above can be made, the decision-making body
may deny an application for a waiver only if one of the following written findings as
applicable to each type of application, supported by substantial evidence:
a) That the incentive or concession, or waiver would have an adverse impact on real
property listed in the California Register of Historic Resources; or
There are no affected Historic Resources in the vicinity.
b) That the incentive or concession, or waiver would have a specific, adverse impact
upon public health or safety or the physical environment, and there is no feasible
method to satisfactorily mitigate or avoid the specific, adverse impact without
rendering the residential project unaffordable to low- and moderate--income
households. For the purpose of this subsection, "specific, adverse impact"means a
significant, quantifiable, direct, and unavoidable impact, based on objective,
identified, written public health or safety standards, policies,or conditions as they
existed on the date that the application for the residential project was deemed
Complete; or
As evidenced by the findings and conclusions of the MND Addendum, there exists no
significant, gtiantifiable, direct, and unavoidable impacts, based on ol7jective, identified,
Re,salutlon No. 22-146
Page a
written l?rrlrlic health or safety standards, policies, or conditions as they existed on the date
that the application jar• the residential Project was deerrred complete.
c) That the incentive or concession, or waiver is contrary to state or federal law.
The requested waivers are not contranl to state or.iederal law.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Addendum, subject to the conditions which are
enumerated in this Resolution beginning on PACE 7 thereof, and those contained in all
other Resolutions approved for this Project, the City Council hereby:
1. Determines that the First Addendum to the Initial Study and Mitigated Negative
Declaration (State Clearinghouse Number 2016052006) for the Marina Project
reflects the independent judgement of the City Council; and
2. Adopts the First Addendum to the Initial Study and Mitigated Negative Declaration
(State Clearinghouse Number 2016052006) for the Marina Project; and
3. Approves the application for a Development Permit, Application No. DP-2022-001;
and
That the subconclusions upon which the findings and conditions specified in this
Resolution are based are contained in the Public Hearing record concerning Application
no. DP-2022-001 as set forth in the Minutes of the City Council Meeting of December 6,
2022 and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated July 27,2022 consisting of 91 sheets labeled
as Marina Plaza, A0.0 - A11.0, T-01 -T-03, C0.1 - C4.3, JT-1 -JT-3, L1.01 - L3.05,
and TR0.1 - TR0.9, drawn by Tectonic Builders, Giuliani & Kull, Vizion Utility,
and JETT Landscaping,except as may be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
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construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos.TR-2022-026,TM-2022-003,and A5A-
2022-082 shall be applicable to this approval.
4. DEVELOPMENT ALLOCATION
2,732 s.f. of commercial allocation is added to the available commercial allocation
city-wide since there is a reduction of commercial square footage on the site.
5. DENSITY BONUS
The project is granted a Density Bonus of 27 market-rate units and shall provide
18 units affordable to median income households and 18 units affordable to
moderate income households as determined by the City's BNR Mitigation
Manual.
6. DENSITY WAIVERS
The project is granted three density bonus waivers as follows:
a. Height waiver for two buildings. Building A-58 feet 6 inches; Building C-55
feet
b. Side setback waiver for two buildings: Building A-a reduction of a maximum
of I8 feet 6 inches for portions of Building A; Building C - a reduction to a
maximum of 5 feet for portions of Building C.
c. Common Open Space: a reduction of the required amount by 634 sq.ft.
7. DENSITY BONUS PARKING REDUCTION
The project is granted a parking reduction pursuant to Density Bonus law. The
applicant shall provide 338 residential parking spaces. Each unit shall have a
minimum of one assigned/designated parking space.
8. SHARED PARKING
The project shall provide 269 commercial parking spaces. These spaces shall be
available for commercial parking between 7AM and 11PM. After 11PM, this
parking can be shared with the residential users.Should a business wish to operate
after 11PM, with a Conditional Use Permit, a parking plan must be provided to
ensure adequate commercial parking is available.
9. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on
the first page of the building plans.
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10. CONSULTATION WITH OTI-I ER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies
about the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
11. BICYCLE PARKING
The applicant shall provide bicycle parking and bike racks for the proposed project
in accordance with the City's Parking Regulations under Chapter 19.124 of the
Cupertino Municipal Code,
12. BMR UNIT DESIGN REQUIREMENTS
The Applicant shall detail how the following requirements shall be met prior to
building permit issuance:
a. The BMR units shall be comparable to market-rate units in terms of unit type,
number of bedrooms per unit, quality of exterior appearance and overall quality
of construction.
b. The BMR unit size should generally be representative of the unit sizes within the
senior market-rate portion of the residential project.
c. Interior features and finishes in the affordable units shall be durable, of good
quality and consistent with the contemporary standards of new housing.
13. BMR AGREEMENT
Prior to the recordation of a final may or issuance of any building permit, an
affordable housing agreement shall be recorded against the property. The
affordable housing agreement shall include, but not be limited to the following:
a. Total number of BMR units, type, location (site map), square footage, number of
bedrooms, and construction scheduling of market-rate and BMR twits;
b. Provisions to ensure concurrent construction and completion of BMR units and
market-rate units;
c. Affordability levels for each BMR unit;
d. Prices for BMR units as provided for in the BMR mitigation manual;
e. Provisions for income certification and screening of potential occupants of BMR
units;
f. Restriction control mechanisms;
g. Financing of ongoing administrative and monitoring costs;
h. Other reasonably required provisions to implement the Affordable Housing Plan.
Resolution No.22-146
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14. BMR UNIT TERMS OF AFFORDABILITY
Prior t0 occupancythe proposed project shall record covenants that require the
units to be occupied at rents that are affordable to moderate median levels for a
period not less than 99 years from the date of first occupancy of the unit.
15. PUBLIC ART REQUIREMENT
Public art shall be provided for the project in accordance with General Plan Policy
2-66 and the City's Public Art Ordinance (Chapter 19.148 of the Cupertino
Municipal Code). The minimum expenditure for the artwork, including, but not
limited to design,fabrication, and installation is one(1)percent of the construction
valuation for the first $100 million on construction valuation, or 0.9% .of
construction valuation for valuation in excess of $100 million. The project pro
forma shall be provided to the City to confine the project budget. The public art
plans (including location and design) shall be reviewed by the Fine Arts
Commission during the building permit stage, in advance of final occupancy.
Once approved by the Fide Arts Commission, the public artwork shall be installed
to the satisfaction of the City prior to final occupancy. In the event the developer
or property owner determines that the placement of artwork on a particular
property may not be feasible, the developer or property owner may apply to the
City for an in-lieu payment alternative as indicated in Chapter 19.148 of the
Cupertino Municipal Code, subject to review of the Fine Arts Commission and the
City Council.The in lieu payment shall be 1.25% of the construction valuation.
16. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum
extent feasible subject to the Building Official. The applicant shall provide
evidence that materials were recycled prior to occupancy.
17. PRE-CONSTRUCTION MEETING AND CONSTRUCTION MANAGEMENT
PLAN
A demolition and construction management plan shall be submitted and:reviewed
prior to building permit issuance. Prior to commencement of construction
activities, the applicant shall arrange for a pre-construction meeting with the
pertinent departments (Building, Planning, and Public Works) to review the
prepared construction management plan, to ensure that construction complies
with the conditions of approval, staging of construction equipment is appropriate,
tree protection measures are in place, public access routes are identified, and noise
and dust control measures are established. The plan shall include but not be
limited to the following:
a. Compliance with CEQA Mitigation Measures
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b. Appropriate construction staging area
c. Hours of construction
d. Compliance with the City noise ordinance
e. Best management practices
f. Staging of construction equipment shall not occur within : feet of any
residential property.
g. Any other measures as determined to be appropriate by the Director of
Community Development
18. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
The applicant shall indicate compliance with the following grading and
construction hours and noise Limit requirements on all demolition, construction
and grading permits, and in the construction management plans), unless
otherwise indicated.
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements
of Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for
work done more than 750 feet away from residential areas shall be limited to
Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to
6 p.m. Grading, street construction, demolition or underground utility work
within 750 feet of residential areas shall not occur on Saturdays, Suundays,
holidays, and during nighttime period as defined in Section 10.48.053(b) of the
Municipal Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8
pan. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not
allowed on holidays as defined in Chapter 10.48 of the Municipal Code.
Nighttime construction is allowed if compliant with nighttime standards of
Section 10.48 of the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and
subcontractors of said construction restrictions.
19, GREEN BUILDING
The project shall be constructed in accordance with the City's Green Building
Ordinance (Chapter 16.58 of the Cupertino Municipal Code). The applicant shall
Resolution No.22-146
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obtain LEER Silver certification or an alternative reference standard in accordance
with the ordinance since the building size is over 50,000 square feet. Third party
LEED certification or alternative reference standard is required per the ordinance
criteria.
20. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction
of the approved project. The applicant shall provide information and plans to
allow the Building Official and the Fire Marshall or their designee that the
proposed plans comply with Building and Fire Codes in effect at the time of
application for a building permit.
21. HOMEOWNERS' ASSOCIATION
A Property Owner's Association shall be formed to maintain the common areas of
the property. The Conditions, Covenants and Restrictions (CC&Rs) shall be
reviewed and approved by the City Attorney and the Director of Community
Development prior to recordation. The following terms shall be incorporated into
the Association's Conditions, Covenants and Restrictions:
• The members/board shall meet at a minimum of once/year
• The Association dues shall cover:
* Maintenance of common area on the property in compliance with the
approved project conditions of approval, including hardscaping, parking,
landscaping and accessory facilities and amenities,such as trash bins/areas,
common ameiuty areas, tree grates, outside trash bins, fences, etc,
o Building and site repair on a regular schedule, or as otherwise necessary,
and building renovation and replacement as necessary to ensure that the
property is maintained.
o Permits, including tree removal permits, required for maintenance and
repair of facilities in the common areas
• Any changes to the exterior of the development must be reviewed by the
Property Owner's Association.
• CC&R's shall ensure that private open space is kept tidy and free of clutter and
visual blight.
• Any changes to the CC&R's must be reviewed and approved by the City
■ Disbanding of the Association shall require an amendment to the permit.
■ The community room located on the ground floor of Building B, as designed,
and proposed by the applicant, shall be open for the use by 501(c)(3)
organizations registered in the City of Cupertino.
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22. LANDSCAPE PALLETTE
That the applicant shall present to City Council a landscape palette that utilizes
native trees, shrubs, and/or ground cover, consistent with the City's Water
Efficient Landscape Ordinance (WELD), CIVIC 14.15: Landscape Ordinance.
23. INDOOR AIR POLLUTION
Prior to issuance of Building Permits, the applicant shall implement best practices
to manage indoor air pollution which include, but not limited to, installing air
filters rated at a MERV 13 in all wets located within the "Implement Best
Practices" area as identified in the Bay Area Air Quality Management District
(BAAQMD) Planning Healthy Places Map.
24. TRASH AND DELIVERY ACTIVITIES
A detailed refuse and truck delivery plan shall be prepared by the applicant. The
plan shall specify locations of trash facilities, refuse pick up schedules and truck
delivery schedules and routes. All trash facilities must be screened and enclosed
to the satisfaction of the Public Works Department. The final plan shall be
submitted to the City for review and approval prior to issuance of building
permits.
25. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the
original approved plans. Final building exterior treatment plan (including but not
limited to details on exterior color, materials, architectural treatments, doors,
windows, lighting fixtures, and/or embellishments) shall be reviewed and
approved by the Director of Community Development prior to issuance of
building permits to ensure quality and consistency. Any exterior changes
determined to be substantial by the Director of Community Development shall
either require a modification to this permit or a new permit based on the extent of
the change.
26. ACOUSTIC STUDY AND REDUCTION OF INTERIOR NOISE LEVELS 1
Prior to the issuance of building permits, the project applicant shall submit an
acoustic study to the satisfaction of the City's Community Development Director
to demonstrate that unit interiors meet an interior noise level due to exterior noise
of 45 dBA CNEL, consistent with State and local noise standards. The study shall
be based on precise grading and architectural plans including specifie construction
method details and materials to calculate the necessary exterior to interior noise
reduction of approximately 30 dBA to achieve 45 dBA CNEL. The precise exterior
to interior reduction would be determined in the acoustical study when precise
Resolution No.22-146
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grading plans with. building elevations, footprints and architectural plans are
-available. The applicant will be required to incorporate into the project design all
required noise insulation features and techniques necessary to reduce interior
noise levels to achieve the interior noise standard.To achieve the required interior
noise levels, features such as upgraded exterior wall and roof assemblies,
upgraded windows, and exterior doors may be required. In addition, a "windows
closed" condition will be required with minimum supply of fresh air per UBC
requirements.
2T ROOFTOP EQUIPMENT SCREENING
All mechanical and other equipment on the building or on the site shall be
screened so they are not visible from public street areas or adjoining
developments. The height of the screening shall be taller than the height of the
mechanical equipment that it is designed to screen. A line of sight plan may be
required to demonstrate that the equipment will not be visible from any public
right-of-way. The location of the equipment and necessary screening shall be
reviewed and approved by the Director of Community Development prior to
issuance of building permits.
28. RESTAURANT ODOR ABATEMENT
All new restaurants shall install odor abatement systems to reduce odor impacts
from the restaurants to the adjacent community.The odor abatement systems shall
be installed prior to final occupancy of the associated restaurants). Detailed plans
shall be reviewed and approved by the Director of Community Development prior
to issuance of building permits.
29. SIGN PROGRAM
A sign program is required for this project. The sign program shall be approved
by the Director of Community Development prior to issuance of sign permits.
30. SITE IMPROVEMENTS
All proposed site improvements shall be completed prior to final occupancy of any
structures approved in conjunction with the project.
31. EXTERIOR BUILDING MATERIALS TREATMENTS
The final building exterior plan shall closely resemble the details shown on the
original approved plans.Final building exterior treatment plan (including but not
limited to details on exterior color, materials, architectural treatments, doors,
windows, lighting fixtures, and/or embellishments) shalt be reviewed and
approved by the Director of Community Development prior to issuance of
building permits to ensure quality and consistency. Any exterior changes
Resole fion No. 22-146
Page 1.3
determined to be substantial by the Director of Community Development shall
either require a modification to this permit or a new permit based on the extent of
the change.
Future changes to the exterior building materials treatments must be reviewed
and approved by the Property Owner's Association. However, any changes to the
building materials that do not match the approved materials shall require an
amendment to this permit or a new permit.
32. DARK SKY COMPLIANCE AND OR BIRD SAFE COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit
final plans in compliance with the approved lighting plans to comply with
development standards of Cupertino Municipal Code Section 19.102.030 Bird-Safe
Development Requirements and/or Section 1.9.102.040 Outdoor Lighting
Requirements. In the event changes are proposed from the approved plans, said
changes must be reviewed and approved by the Director of Community
Development or their designee. The applicant shall provide all documentation
required to determine compliance with the Municipal Code. The final lighting
plan (including a detailed photometric plan) shall be reviewed and approved by
the Director of Community Development prior to building permit issuance. A
report from a licensed lighting engineer may be required to confirm all exterior
lighting throughout the site complies with the City's Ordinance.
33. NOISE LEVELS AND ABATEMENT
Project uses and all equipment installed on the site shall comply with the City's
Community Noise Control Ordinance at all times. Installation of any mechanical
or other equipment shall be evaluated to determine that the installation meets the
City's Community Noise Control Ordinance, Any documentation or studies
required to determine this shall be provided by the applicant as his/her sole
expense. Should the project exceed any of the stipulated maximum noise levels
outlined in the City's Communty Noise Control Ordinance, an acoustical
engineer may be required to submit noise attenuation measures to the satisfaction
of the Director of Community Development at the applicant's expense.
34. INGRESS/EGRESS EASEMENT
The applicant shall record an appropriate deed restriction and covenant running
with the land, subject to approval of the City Attorney, for all parcels that share a
common private drive or private roadway with one or more other parcels. The
deed restriction shall provide for necessary reciprocal ingress and egress easement
to and from the affected parcels. The easements shall be recorded at such time as
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Page 14
interest in one or more of the affected parcels is initially sold or transferred to
another party.
35. INDEMNIFICATION
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold
harmless the. City, its City Council, and its officers, employees, and agents
(collectively, the "indemnified parties") from and against any liability, claim,
action, cause of action, suit, damages, judgment, lien, levy, or proceeding
(collectively referred to as "proceeding") brought by a third party against one or
more of the indemnified parties or one or more of the indemnified parties and the
applicant related to any Ordinance, Resolution, or action approving the project,
the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs
awarded against the City, if any, and cost of suit, attorneys' fees, and other costs,
liabilities, and expenses incurred in connection with such proceeding whether
incurred by the Applicant, the City, or the parties initiating or bringing such
proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees
and costs shall include amounts paid to the City's outside counsel and shall
include City Attorney time and overhead costs and other City staff overhead costs
and any costs directly related to the litigation reasonably incurred by City. The
applicant shall likewise agree to indemnify, defend, and hold harmless the
indemnified parties from and against any damages, attorneys' fees, or costs
awards, including attorneys' fees awarded under Code of Civil Procedure section
1021.5, assessed or awarded against the indemnified parties. The Applicant shall
cooperate with the City to enter a Reimbursement Agreement to govern any such
reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all Costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan,or general plan amendment) if made necessary
by proceedings challenging the project approvals and related environmental
review, if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
ResolUtfon No. 22-I46
Pi)ge 15
36. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements,reservation requirements, and other exactions. Pursuant
to Government Code Section 66020(d) (1), these Conditions constitute written
notice of a statement of the amount of such fees, and a description of the
dedications,reservations, and other exactions. You are hereby further notified that
the 90-day approval period in which you may protest these fees, dedications,
reservations, and other exactions, pursuant to Government Code Section 66020(a),
has begun. If you fail to file a protest within this 90-day period complying with
all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS
DEPARTMENT
1. SHARED ACCESS POINTS
All shared access points with the adjacent property owners shall be located within
existing and/or newly created ingress and egress easements. New access points may
need to be modified to ensure they remain within these established ingress and egress
easements. Additional comments will be provided and shall be incorporated prior to
Final Map approval.
2. DEVELOPER CONTRIBUTION
The developer shall contribute 25% towards operation improvements at the Stevens
Creek Blvd and Bandley Dr intersection. The estimated cost of these improvements
is$184,000.
3, GREEN STORMWATER INFRASTRUCTURE
During the development of the construction plans that will be provided at the
Building Permit stage, the project shall study the feasibility of providing green
stormwater infrastructure (GSI)within the right of way that would provide treatment
for the adjacent roadway.
If found feasible, the maintenance of GSI shall be the responsibility of the Developer
and included in the Stormwater Management Facilities, Operation, Maintenance and
Easement Agreement to be executed prior to Final Map approval. Additional
comments will be provided and shall be incorporated prior to Final Map approval.
4. OPERATION AND MAINTENANCE OF CERTIFIED FULL TRASH CAPTURE
SYSTEMS
All California State Regional Water Quality Control Board certified full trash capture
systems and devices must be inspected, cleaned, and maintained according to the
Resolution No_22-146
Page 16
manufacturers specification and at a minimum, meeting the Provision C.10.b.1.(a)
and (b) of the Municipal Regional Stormwater Permit Order No. R2-2022-0018.
Property owner shall inspect and maintain full trash capture devices to ensure they
are operating appropriately and have sufficient operating capacity to capture trash
consistent with the requirements of this Provision.The inspection and maintenance
of each full capture device shall be at a frequency sufficient to prevent plugging,
including plugging of the 5 mm screen leading to trash overflow and bypass,
flooding, or a full condition of the device's trash reservoir causing bypass of trash.
5. EXTERIOR WASTE TRIOS
All exterior waste trios must be maintained in perpetuity and may not be removed
or relocated without prior review and written consent of Environmental Programs
Manager.
6. SHORING
Any shoring required for the project construction shall be contained within the
property, unless approved by the City Engineer. Any shoring that extends into the
public right-of-way shall be subject to fees and requirements as determined by the
Public Works Department.
7. STREET IMPROVEMENTS &DEDICATION
Roadway dedication in fee title (or other form as accepted by the City Engineer) and
street improvements along the project will be required to the satisfaction of the
Director of Public Works. Street improvements, grading and drainage plans must be
completed and approved prior to Final Map approval.
Street improvements may include,but not be limited to,new detached sidewalk,ADA
ramps, curb bulb outs, fire access areas, green stormwater infrastructure, driveways,
storm, sanitary sewer and other public utilities related to the project, street tree
installations, and installation of new or relocation of existing streetlights. All
improvements must be completed and accepted by the City prior to Building Final
Occupancy or Street Improvement Encroachment Permit acceptance whichever
comes first.
Additional comments will be provided and shall be incorporated prior to Final Map
approval.
8. ACCEPTANCE OF PROPERTY RIGHTS
The Public Works Director, or his/her designee, shall have the authority to accept all
offers of dedications,easements,quitclaims and other property rights and interests on
behalf of the City.
Resolulion No.22-146
Page 17
9. CURB AND GUTTER IMPROVEMENTS
Curbs and gutters, sidewalks and related structures shall be installed in accordance
with grades and standards as specified by the Director of Public Works. All
improvements must be completed and accepted by the City prior to Building Final
Occupancy or Street Improvement Encroachment Permit acceptance wlichever
comes first.
10. PEDESTRIAN AND BICYCLE IMPROVEMENTS
Developer shall provide pedestrian and bicycle related improvements (e.g. walkway
and bicycle racks, etc.) consistent with the Cupertino Bicycle Transportation Plan and
the Pedestrian Transportation Plan, as designated and approved by the Director of
Public Works. All improvements must be completed and accepted by the City prior
to Building Final Occupancy or Street Improvement Encroachment Permit acceptance
whichever comes first.
11. STREET LIGHTING INSTALLATION
Street lighting shall be installed and shall be as approved by the Director of Public
Works. Lighting fixtures shall be positioned so as to preclude glare and other forms
of visual interference to adjoining properties and shall be no higher than the
maximum height permitted by the zone in which the site is located.
12. GRADING
Grading shall be as approved and required by the Director of Public Works in
accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications
and 404 permits maybe required. Please contact Army Corp of Engineers and/or
Regional Water Quality Control Board as appropriate.
13. DRAINAGE
Drainage shall be provided to the satisfaction of the Director of Public Works and
satisfy any requirements from the environmental analysis. Hydrology and pre- and
post-development hydraulic calculations must be provided to indicate whether
additional storm water control measures are to be constructed or renovated. The
storm drain system may include, but is not limited to, subsurface storage of peak
stormwater flows (as needed), bioretention basins, vegetated swales, and
hydrodynamic separators to reduce the amount of runoff from the site and improve
water quality. The storm drain system shall be designed to detain water on-site (e,g.,
via buried pipes, retention systems or other approved systems and improvements) as
necessary to avoid an increase of the ten percent flood water surface elevation to the
satisfaction of the Director of Public Works. Any storm water overflows or surface
sheeting should be directed away from neighboring private properties and to the
public right of way as much as reasonably possible.
Resolution No.22-146
Page 18
All storm drain inlets shall be clearly marked with the words "No Dumping—Flows
to Creek" using permanently affixed metal medallions or equivalent, as approved by
the Environmental Programs Division.
Additional comments will be provided and shall be incorporated prior to Final Map
approval.
14. C.3 REQUIREMENTS
C.3 regulated improvements are required for all projects creating and/or replacing
10,000 S.F.or more of impervious surface(collectively over the entire project site). The
developer shall reserve a minimum. of 4% of developable surface area for the
placement of low impact development measures, for storm water treatment, unless
an alternative storm water treatment plan, that satisfies C.3 requirements,is approved
by the Director of Public Works.
The developer must include the use and maintenance of site design, source control
and storm water treatment Best Management Practices (BMPs), which must be
designed per approved numeric sizing criteria. A Storm Water Management Plan and
a Storm Water Facilities Operation, Maintenance and Easement Agreement, and
certification of ongoing operation and maintenance of treatment BMPs are each
required.
The developer is required to obtain certification of the storm water management plan
from a City approved third party reviewer prior to Final Map approval. If substantive
site plan modifications are required to address storm water compliance, the applicant
may be required to obtain further planning entitlement approvals to facilitate the
modifications.
15. SUBDIVISION IMPROVEMENT AGREEMENT
The project developer shall enter into a Subdivision Improvement agreement with the
City of Cupertino providing for payment of fees,including but not limited to checking
and inspection fees, storm drain fees, transportation impact fees, park dedication fees
and fees for under grounding of utilities. Said agreement and fees shall be executed
and paid prior to Final Map approval.
Fees:
a. Checking &Inspection Fees: Per current fee schedule (greater of$4,947
or 5%of improvement costs)
b. Grading Permit: Per current fee schedule (greater of$3,683
or 6% of improvement costs)
c. Tract Map Fee: Per current fee schedule ($12,306)
d. Storm Drainage Fee: Per current fee schedule (residential: $4,250
Resolution No. 22-146
Page ]9
per AC+$322 per DU, commercial: $11,444 per
AC)
e. Transportation Impact Fee: Per current fee schedule: (residential: $4,215
per DU, retail: $10.94 per square foot)
f. Encroachment Permit Fee: Per current fee schedule ($3,304 or 5% of
improvement costs)
g. Park Fees: Per current fee schedule ($54,000 per DU)
h. Storm Management Plan Fee Per current fee schedule ($1,670)
i. Street Tree Fee: By Developer or Per current fee schedule:
$481 per tree
j. Developer Contribution: 25% of improvement cost
(Bandley &Stevens Creek Blvd
intersection operational improvements—
estimated total cost of$184,000)
Bonds:
a. Faithful Performance Bond: 100% of Off-site and On-site Improvements
b. Labor &Material Bond: 100% of. Off-site and On-site Improvement
c. On-site Grading Bond: 100% of site improvements.
The fees described above are imposed based upon the Current fee schedule adopted
by the City Council. However, the fees imposed herein may be modified at the time
of recordation of a final map or issuance of a building permit in the event of said
change or changes, the fees changed at that time will reflect the then current fee
schedule.
16. FINAL MAP
A final map will be subject to City Council approval and shall be recorded prior to
issuance of building permits. Existing buildings must be demolished prior to
recordation of they final map as building(s) cannot straddle between lot lines.
17. TRANSPORTATION IMPACT FEES
The Project is subject to the payment of Transportation Impact Fees under City's
Transportation Impact Fee Program(Chapter 14.02 of the Cupertino Municipal Code).
18. PARKS
The residential units are subject to Park Land Dedication or the payment of parkland
fees in-lieu of parkland dedication per Chapter 13.08 and Chapter 18.24 of the
Cupertino Municipal Code,
Resolution No.22-146
Page 20
The Below Market Rate (BMR) program manual, which was last amended by City
Council on May 19, 2020 per Resolution 20-055, authorizes the waiver of park fees for
BMR units. Pursuant to Resolution 20-055, parkland dedication in-lieu fees for the 36
BMR units proposed for this project are hereby waived.
19. SURVEYS
A Boundary Survey and a horizontal control plan will be required for all new
construction to ensure the proposed building will be set based on the boundary
survey and setback requirements.
20. TRASH RECYCLING AND COMPOST ENCLOSURES & OPERATIONS
Trash enclosure plans must be designed in accordance with the City's "Public Works
Guidelines" posted at www.cL�ertinO.Or IQ OLIY--cif/departmentsLenviroizment-
sListainabilitypreen-developn-ient, and to the satisfaction of the Environmental
Programs Manager. Clearance by the Public Works Department is required prior to
obtaining a building permit. (CMC 9.18.210 H & K)
Prior to Final Map approval, the developer shall obtain approval from the refuse and
recycling collection company (Recology) that the project's proposed trash collection
operations are acceptable. Developer shall enter into an agreement with the City that
indemnifies and holds harmless both the City and Recology from and against any
harm, damage or maintenance that may occur or become necessary to onsite paving
stone driveway surfaces.
21. OPERATIONS &MAINTENANCE AGREEMENT
Developer shall enter into an Operations & Maintenance Agreement with the City
prior to Final Map approval. The Agreement shall include the operation and
maintenance for non-standard appurtenances in the public road right-of-way that
may include, but is not limited to, green stormwater infrastructure, landscaping,
street trees, and pavers.
22. UNDERGROUND UTILITIES
Developer shall comply with the requirements of the Underground Utilities
Ordinance No. 331 and other related Ordinances and regulations of the City of
Cupertino, and shall coordinate with affected utility providers for installation of
underground utility devices. Developer shall submit detailed plans showing utility
underground provisions, Said plans shall be subject to prior approval of the affected
Utility provider and the Director of Public Works.
23.TRANSFORMERS &CABINETS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. T11e developer must receive written approval from both the
Resolution No.22-146
Page 21
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
24. WATER BACKFLOW PREVENTERS
Domestic and Fire Water Backflow preventers and similar above ground equipment
shall be placed away from the public right of way and site driveways to a location
approved by the Cupertino Planning Department, Santa Clara County Fire
Department and the water company.
25. BEST MANAGEMENT PRACTICES
Utilize Best Management Practices (BMPs), as required by the State Water Resources
Control Board, for construction activity, which disturbs soil. BMW plans shall be
included in grading and street improvement plans.
26. NPDES CONSTRUCTION GENERAL PERMIT
When and where it is required by the State Water Resources Control Board (SWRCB),
the developer must obtain a Notice of Intent (NOI) from the SWRCB, which
encompasses preparation of a Storm Water Pollution Prevention Plan (SWPPP), use
of construction Best Management Practices (BMPs) to control storm water runoff
quality, and BMP inspection and maintenance.
27. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil
Engineer. This plan should include all erosion control measures used to retain
materials on site. Erosion control notes shall be stated on the plans.
28. WORK SCHEDULE
Every 6 months, the developer shalt submit a work schedule to the City to show the
timetable for all grading/erosion control work in conjunction with this project.
29. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to
be approved by the City. The plan shall include a temporary traffic control plan for
work in the right of way as well as a routing plan for all vehicles used during
construction. All traffic control signs must be reviewed and approved by the City
prior to commencement of work. The City has adopted Manual on Uniform Traffic
Resolution No.22-146
Page 22
Control Devices (MIJTCD) standards for all signage and striping work throughout
the City.
30. STREET TREES
31. Street trees shall be planted within the Public Right of Way to the satisfaction of
the Director of Public Works and shall be of a type approved by the City in
accordance with Ordinance No. 125.FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
32. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County Fire
Department prior to issuance of building permits. Clearance should include written
approval of the location of any proposed Fire Backflow Preventers, Fire Department
Connections and Fire Hydrants (typically Backf low Preventers should be located on
private property adjacent to the public right of way, and fire department connections
must be located within 100' of a Fire Hydrant).
33. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire
Department as needed.
34. CALIFORNIA WATER SERVICE COMPANY CLEARANCE
Provide California Water Service Company approval for water connection, service
capability and location and layout of water lines and backflow preventers prior to
Final Map approval.
35. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall "quit claim" to the City all rights to pump, take or otherwise extract
water from the underground basin or any underground strata in the Santa Clara
Valley.
SECTION Vl: CONDITIONS ADMINISTERED BY THE CUPERTINO SANITARY
DISTRICT
I. CUPERTINO SANITARY ❑ISTRICT
A letter of clearance for the project shall be obtained from the Cupertino Sanitary
District prior to Final Map approval. The letter shall include their review and
approval of any existing sanitary sewer easements to be quitclaimed and the creation
of any new sanitary sewer easements.
Resol«tson No.22-146
Page 23
2. UTILITY EASEMENTS
Clearance approval letters from the agencies with easements on the property
(including PG&E, AT&T, Comcast, California Water Company, and/or equivalent
agencies) will be required prior to Final Map approval. Their letters shall include their
review and approval of any easement(s) to be vacated and/or quitclaimed, which
include proposed private structures and utilities within the existing public service
easement along Bandley Dr and Alves Dr.
SECTION V: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY
FIRE DEPARTMENT
1. FIRE SPRINKLERS REQUIRED:
Approved automatic sprinkler systems in new and existing buildings and structures
shall be provided in the locations described in this Section or in Sections 903.2.1
through 903.2.18 whichever is the more restrictive. For the purposes of this section,
firewalls used to separate building areas shall be constructed in accordance with the
California Building Code and shall be without openings or penetrations. NOTE: The
owner(s), occupant(s) and any contractor(s) or subcontractor(s) are responsible for
consulting with the water purveyor of record in order to determine if any
modification or upgrade of the existing water service is required. A State of California
licensed (C-16) Fire Protection Contractor shall submit plans, calculations, a
completed permit application and appropriate fees to this department for review and
approval prior to beginning their work. CFC Sec. 903.2 as adopted and amended by
CMC.
2. FIRE HYDRANT SYSTEMS REQUIRED
Where a portion of the facility or building hereafter constructed or moved into or
within the jurisdiction is more than 400 feet from a hydrant on a fire apparatus access
road,as measured by an approved route arourid the exterior of the facility or building,
onsite fire hydrants and mains shall be provided where required by the fire code
official. Exception: For Group R-3 and Group U occupancies the distance
requirement shall be 600 feet. For buildings equipped throughout with an approved
automatic sprinkler system installed in accordance with Section 903.3.1.1, 903.3.1.2 or
903.3.1.3, the distance requirement shall be not more than 600 feet. [CFC, Section
507.5.11
3, REQUIRED FIRE FLOW
The fire flow for this project is 8000 GPM at 20 psi residual pressure. If an
automatic fire sprinkler system will be installed, the fire flow will be reduced by 75%,
establishing a required adjusted fire flow of 2000 GPM at 20 psi residual pressure.
Resokition No.22-146
Page 24
Note: The minimum required number and spacing of the hydrants shall be in
accordance with CFC Table C102.1.
4. BUILDINGS AND FACILITIES ACCESS
Approved fire apparatus access roads shall be provided for every facility, building or
portion of a builduzg hereafter constructed or moved into or with the jurisdiction. The
fire apparatus access road shall comply with the requirements of this section and shall
extend to within 150 feet of all portions of the facility and all pardons of the exterior
walls of the first story of the building as measured by an approved route around the
exterior of the building or facility. [CFC, Section 503.1.11.
5. STANDPIPES REQUIRED
Standpipe systems shall be provided in new buildings and structures in accordance
with this section. Fire hose threads used in connection with standpipe systems shall.
be approved and shall be compatible with fire department hose threads. The location
of fire department hose connections shall be approved. Standpipes shall be manual
wet type. In buildings used for high-piled combustible storage, fire hose protection
shall be in accordance with Chapter 32. Installation standard.Standpipe systems shall
be installed in accordance with this section and NFPA 14 as amended in Chapter 47.
CFC Sec. 905
6. WATER SUPPLY REQUIREMENTS
Potable water supplies shall be protected from contamination caused by fire
protection water supplies. It is the responsibility of the applicant and any contractors
and subcontractors to contact the water purveyor supplying the site of such project,
and to comply with the requirements of that purveyor. Such requirements shall be
incorporated into the design of any water-based fire protection systems, and/or fire
suppression water supply systems or storage containers that may be physically
connected in any manner to an appliance capable of causing contamination of the
potable water supply of the purveyor of record. Final approval of the system(s)under
consideration will not be granted by this office until compliance with
the requirements of the water purveyor of record are documented by that purveyor
as having been met by the applicants). 2019 CFC Sec. 903.3.5 and Health and Safety
Code 13114.7.
7. TIMING OF INSTALLATION
When fire apparatus access roads or a water supply for fire protection is required to be
installed, such protection shall be installed and made serviceable prior to and during
the time of construction except when approved alternative methods of protection are
provided. Temporary street signs shall be installed at each street intersection when
construction of new roadways allows passage by vehicles in accordance with Section
Resolution No.22-146
Page 25
505.2. Construction documents. Construction documents For proposed fire apparatus
access, location of fire lanes, security gates across fire apparatus access and
construction documents and hydraulic calculations for fire hydrant systems shall be
submitted to the fire department for review and approval prior to construction. CFC
Sec. 501.3, 501.4.
8. REQUIRED FIRE DEPT, ACCESS
Commercial aid Industrial Developments
a. Buildings exceeding three stories or 30 feet in height. Buildings or facilities
exceeding 30 feet(9144 mm) or three stories in height shall have a least two means
of fire apparatus access for each structure.
b. Buildings exceeding 62,000 square feet in area. Buildings or facilities having a
gross building area of more than 62,000 square feet (5760 mm) shall be provided
with two separate and approved fire apparatus access roads.
c. Exception:Projects having a gross building area of up to 124,000 square feet(11520
mm) that have a single approved fire apparatus access road when all buildings are
equipped throughout with approved automatic sprinkler systems. Multi-Family
Residential Developments (R-1 & R-2 occupancies) 1. Multi-family residential
projects having more than 100 dwelling units shall be equipped throughout with
two separate and approved fire apparatus access roads. CFC Sec. Chp. 5 as
adopted and amended by CUPMC.
9. REQUIRED AERIAL ACCESS
a. Where required: Buildings or portions of buildings or facilities exceeding 30 feet
(9144 mm) in height above the lowest level of Fire department vehicle access shall
be provided with approved fire apparatus access roads capable of accommodating
fire department aerial apparatus. Overhead utility and power lines shall not be
located within the aerial fire apparatus access roadway.
b. Width: Fire apparatus access roads shall have a minimum unobstructed width of
26 feet(7925)in the immediate vicinity of any building or portion of building more
than 30 feet(9144 mm) in height.
r. Proximity to building: At ]east one of the required access routes meeting this
condition shall be located within a minimum of 15 feet (4572) and a maximum of
30 feet (9144mm) from the building, and shall be positioned parallel to one entire
side of the building, as approved by the fire code official.
10. FIRE LANES REQUIRED
The minimum clear width of fire department access roads shall be 20
feet. The minimum outside turning radius is 42 feet for required circulating access
Resolution No. 22-146
Page 26
roadways. Fire apparatus access roads shall be designated and marked as a fire
laneas set forth in Section 22500.1 of the California Vehicle Code.
11. FIRE APPARATUS (ENGINE) ACCESS ROADS REQUIRED
Provide an access roadway with a paved all-weather surface, a minimum
unobstructed width of 20 feet, vertical clearance of 13 feet 6 inches, minimum
circulating turning radius of 42 feet outside, and a maximum slope of 15%. Surface
shall be capable of supporting 75K pounds. Installations shall conform to Fire
Department Standard Details and Specifications sheet A-1, CFC Sec. 503.
12. FIRE DEPARTMENT ENGINE ROADWAY TURNAROUND
Provide an approved fire department engine roadway turnaround with a minimum
radius of 36 feet outside and 23 feet inside. Installation shall conform to Fire
Department Standard Retails and Specification sheet A-1. Cul-de-sac.CFC Sec. 503 as
adopted and amended by CUPMC. Circulating fire lane shown on Sheet C4 with
conforming radii of turns for an aerial apparatus proximal to the structure exceeding
30-feet in height.
13. GROUND LADDER ACCESS
Ground-ladder access rescuer from second and third floor rooms shall be made
possible for fire department operations. With the Climbing angle of seventy-five
degrees maintained, an approximate walkway width along either side of the building
shall be no less than seven feet clear. Landscaping shall not be allowed to interfere
with the required access. CFC Sec. 503 and 1029 NFPA 1932 Sec. 5.1.8 through 5.1.9.2.
Required for all residential townhouseslrowhouses and each emergency egress
window.
1.4. FIRE ALARM REQUIREMENTS
Refer to CFC Sec. 907 and the currently adopted edition of NFPA 72.
15. EMERGENCY RADIO RESPONDER COVERAGE
All new buildings shall have approved radio coverage for emergency responders
within the building based upon the existing coverage levels of the public safety
communication systems of the jurisdiction at the exterior of the building. This section
shall not require improvement of the existing public safety communication
systems. CFC Sec. 510.1 .
16. TWO-WAY COMM[JNICATION SYSTEM
Two-way communication systems shall be designed and installed in accordance with
NFPA 72 (2016 edition), the California Electrical Code (2013 edition), the California
Fire Code (2016 edition), the California Building Code (2016 edition), and the
Resolution No,22-146
Page 27
city ordinances where two way system is being installed, policies, and standards.
Other standards also contain design/installation criteria for specific life safety related
equipment.
17. CONSTRUCTION SITE FIRE SAFETY
All construction sites must comply with applicable provisions of the CFC Chapter 33
and our Standard Detail and Specification SI-7. Provide appropriate notations on
subsequent plan submittals, as appropriate to the project. CFC Chp, 33.
18. ADDRESS IDENTIFICATION
New and existing buildings shall have approved address numbers, building numbers
or approved building identification placed in a position that is plainly legible and
visible from the street or road fronting the property. These numbers shall contrast
with their background. Where required by the fire code official, address numbers
shall be provided in additional approved locations to facilitate emergency response.
Address numbers shall be Arabic numbers or alphabetical letters.Numbers shall be a
minimum of 4 inches (101,6 mm) high with a minimum stroke width of 0.5 inch (12.7
mm). Where access is by means of a private road and the building cannot be viewed
from the public way, a monument, pole or other sign or means shall be used to
identify the structure. Address numbers shall be maintained. CFC Sec. 505.1
19. PUBLIC FIRE HYDRANT(S) REQUIRED
Provide public fire hydrant(s) at location(s) to be determined jointly by the Fire
Department and San Jose Water Company. Maximum hydrant spacing shall be 500
feet, with a minimum single hydrant flow of 6500 GPM at 20 psi, residual. Fire
hydrants shall be provided along required fire apparatus access roads and adjacent
public streets.CFC Sec.507, and Appendix B and associated Tables, and Appendix C.
20. TURN RADIUS (CIRCULATING)
The minimum inside turning radius is 20 feet and outside turning radius is 42 feet for
required access roadways. Greater radius up to 60 feet maybe required where the Fire
Department determines that Ladder Truck access is required. Circulating refers to
travel along a roadway without dead ends.
21. KNOX KEY BOXES/LOCKS WHERE REQUIRED FOR ACCESS
Where access to or within a structure or an area is restricted because of secured
openings or where immediate access Is necessary for lifesaving or firefighting
purposes, the fire code official is authorized to require a key box to be installed in
Resolution No.22-146
Page 28
an approved location. The Knox Key Box shall be a of an approved type and shall
contain keys to gain necessary access as required by the fire code official.
22. LOCKS
An approved Knox Lock shall be installed on gates or similar barriers when required
by the fire code. official. Key box maintenance. The operator of the building shall
immediately notify the fire code official and provide the new key when a lock is
changed or re-keyed. The key to such lock shall be secured in the key box. [CFC Sec.
506].
23. FIRE DEPARTMENT CONNECTION
The fire department connection (FDC) shall be installed at the street on the street
address side of the building.it shall be located within 100 feet of a public fire hydrant
and within ten (10) feet of the main PIV (unless otherwise approved by the Cl-tief due
to practical difficulties). FDC's shall be equipped with a minimum of two (2), two-
and-one-half (2- 1/2") inch national standard threaded inlet couplings. Orientation of
the FDC shall be such that hose lines may be readily and conveniently attached to the
inlets without interference. FDC's shall be painted safety yellow. [SCCFD, SP-2
Standard].
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6th day of December, 2022, by the following vote:
Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT. None
ABSTAIN: None
SIGNED:
Darcy Pa 1, Mayo , Date
Cit of Cu ertino-
ATTEST:
Kirsten S uarcia, City Clerk Date
RESOLUTION NO. 22-147
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING AN ARCHITECTURAL AND SITE APPROVAL PERMIT TO
DEMOLISH APPROXIMATELY 44,000 SQ. FT. OF EXISTING COMMERCIAL i
SPACE AND THE CONSTRUCTION OF THREE MIXED-USE BUILDINGS WITH I
APPROXIMATELY 41,268 SQ. FT. OF COMMERCIAL SPACE AND 206
CONDOMINIUM UNITS AND REQUESTING A DENSITY BONUS, AND
DENSITY BONUS WAIVERS FOR HEIGHT, SETBACKS,AND COMMON OPEN
SPACE LOCATED AT 10145 N. DE ANZA BLVD, 10118 BANDLEY DRIVE (APN:
326-34-066, 326-34-043)
SECTION I: PROTECT DESCRIPTION
Application No.: ASA-2022-001
Applicant: Larry Wang (Tectonic Builders Corp.)
Property Owner: De Anza Venture, LLC
Location: 10145 N.De Anza Blvd, 10118 Bandley Drive (APN: 326-34-066, 326-
34-043)
SECTION II: FINDINGS FOR ARCHITECTURAL AND SITE APPROVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for an Architectural and Site Approval Permit as described in Section I of this resolution;
and
WHEREAS, after consideration of evidence contained in the entire administrative record,
at the public hearing on September 6, 2016, the City Council adopted Resolution No. 16-
091, adopting a Mitigated Negative Declaration for the Marina Development; and
WHEREAS, environmental analysis and peer reviews were conducted by Placeworks,
Inc. pursuant to the requirements of CEQA, finding that no new or substantially
increased significant environmental effects; and
WHEREAS,on November 10,2022 the Planning Commission recommended on a 5-0 vote
that the City Council adopt the Addendum to the Mitigated Negative Declaration (EA-
2015-05) and approve the Development Permit (DP-2022-001) in substantially similar
form to the Resolution presented (Resolution No. 6964), approve the Architectural and
Site Approval Permit (ASA-2022-002) in substantially similar form to the Resolution
presented(Resolution No. 6965), approve the Tree Removal Permit (TR-2022-026) in
substantially similar form to the Resolution presented(Resolution No.6967) and approve
i
I
Resolution No.22-147
Page 2
the Vesting Tentative Map (TM-2022-003), in substantially similar form to the Resolution
presented (Resolution No. 6966); and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on
December 6, 2022 the City Council held a public hearing to consider the Development j
Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS,the applicant has met the burden of proof required to support the application
for a Architectural and Site Approval Permit.
WHEREAS, the analysis in the Addedum prepared by Placeworks,Inc. indicates that the
proposed project would not require major revisions to the Mitigated Negative
Declaration adopted on September 6, 2016, due to new or substantially increased
significant environmental effects. Furthermore, there have been no substantial changes
with respect to the circumstances under which these minor modifications would be
undertaken that would require major revisions of the Adopted Mitigation Negative
Declaration due to new or substantially increased significant environmental effects, and
there has been no discovery of new information of substantial importance that would
trigger or require major revisions to the Mitigated Negative Declaration due to new or
substantially increased significant environmental effects.
WHEREAS, the adopted Mitigated Negative Declaration adequately identifies all
environmental effects and adequate mitigation measures for the proposed modifications
to the previously approved project. Therefore, no subsequent or supplemental Mitigated
Negative Declaration is required prior to approval of the proposed project.
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposal,at the proposed location,will not be detrimental or injurious to property
or improvements in the vicinity, and will not be detrimental to the public health,
safety, general welfare, or convenience;
Given that the project is consistent with the General Plan and Zoning Ordinance; all
mitigation measures identified in the Initial Study/Mitigated Negative Declaration addendum
that are within the responsibility and jurisdiction of the City have been adopted and
incorporated into the project to mitigate potential impacts to a less than significant level, the
project will not be detrimental or injurious to property or improvements in the vicinity, and
will not be detrimental to the public health, safety, general welfare, or convenience.
Resolution No.22-147
Page 3
2. The proposal is consistent with the purposes of Chapter 19.168, the General Plan, any
specific plan,zoning ordinances, applicable planned development permit,conditional
use permits, variances, subdivision maps or other entitlements to use which regulate
the subject property including, but not limited to, adherence to the following specific
criteria:
a) Abrupt changes in building scale should be avoided. A gradual transition related
to height and bulk should be achieved between new and existing buildings.
The proposed project is a redevelopment of a commercial site with three mixed-use multi-
story high-densihj structures. The development is surrounded by multi-storied structures
with the Aloft Hotel to the north and an Apple office building adjacent to the south. The
site is bordered by multi-story structures primarily, with some taller single story
structures (Apple Cafeteria) to the north. There are other single story commercial
structures across N. De Anza Blvd, to the east, which are over 100 feet away from the
proposed structures. There is landscaping proposed at the perimeter which will help mask
some of the bulk of the proposed buildings. There are also two taller four story office
building located directly south-east of the proposed project. While the remaining four
structures on the site are single story, these are commercial buildings, and the proposed
structures are between 10 feet and 25 feet from the existing buildings with adequate
landscaping buffer and existing trees.
b) In order to preserve design harmony between new and existing building and in
order to preserve and enhance property values, the materials, textures and colors
of new building should harmonize with adjacent development by being consistent
or compatible with design and color schemes with the future character of the
neighborhoods and purposes of the zone in which they are situated. The location,
height and materials of walls, fencing, hedges and screen planting should
harmonize with adjacent development.Unsightly storage areas,utility installations
and unsightly elements of parking lots should be concealed.The planting of ground
cover or various types of pavements should be used to prevent dust and erosion,
and the unnecessary destruction of existing healthy trees should be avoided.
Lighting for development should be adequate to meet safety requirements as
specified by the engineering and building departments, and provide shielding to
prevent spill-over light to adjoining property owners.
The design quality of the development is consistent with the high-quality standards
encouraged by City Staff. The mixed-use buildings meet the design qualities of a Modern
i
design development. The architectural style is consistent throughout the development.
Further, the planting plan is consistent with the intent of the Heart of the City Specific
Plan guidelines. Unsightly uses such as loading and trash pickup have been placed within
the buildings away from view of neighboring uses. Utility installation has been designed
Resolution No.22-147
Page 4
to be screened by landscaping and or incorporated into the building design. The final
lighting for the development will be reviewed as part of the review of the project
construction documents to ensure that they meet safety requirements while avoiding spill-
over light to adjacent properties.
c) The number, location, color, size, height, lighting and landscaping of outdoor
advertising signs and structures shall minimize traffic hazards and shall positively
affect the general appearance of the neighborhood and harmonize with adjacent
development; and
Signage approval is not included in this application.
d) With respect to new projects within existing residential neighborhoods, new
development should be designed to protect residents from noise, traffic, light and
visually intrusive effects by use of buffering, setbacks,landscaping,walls and other
appropriate design measures.
The project does not abut any existing residential development. The multi family
development to the north-east of the project site, across Alves, will be buffered from any
impacts because the project has been designed to plant further street tress along the frontage
and has been designed with adequate parking on-site. The buildings have been designed
with setbacks from the curb line as required by the General Plan and Heart of the City
Specific Plan.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the MND Addendum, subject to the conditions which are
enumerated in this Resolution,beginning on PAGE 4 herein, and subject to the conditions
contained in all other Resolutions approved for this Project,
The application for an Architectural and Site Approval, Application No. ASA-2022-001,
is hereby approved, and that the subconclusions upon which the findings and conditions
specified in this Resolution are based are contained in the Public Hearing record
concerning Application no. ASA-2022-001 as set forth in the Minutes of the City Council
Meeting of December 6, 2022 Meeting, and are incorporated by reference as though fully
set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
Resolution No.22-147
Page 5
1. APPROVED EXHIBITS
Approval is based on the plan set dated July 27,2022 consisting of 91 sheets labeled
as Marina Plaza, A0.0 -A11.0, T-01 - T-03, C0.1 - C4.3, JT-1 -JT-3, L1.01 -L3.05,
and TR0.1 - TR0.9, drawn by Tectonic Builders, Giuliani & Kull, Vizion Utility,
i
and JETT Landscaping,except as may be amended by conditions in this resolution. j
2. ACCURACY OF PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR-2022-026, TM-2022-003, and DP-
2022-001 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. FINAL ARCHITECTURAL DETAILS AND EXTERIOR BUILDING MATERIALS
The final building exterior plan shall closely resemble the details shown on the
original approved plans. The final building design and exterior treatment plans
(including but not limited to details on exterior color, materials, architectural
treatments, doors, windows, lighting fixtures, and/or embellishments) shall be
reviewed and approved by the Director of Community Development prior to issuance
of building permits and through an in-field mock-up of colors prior to application to
ensure quality and consistency.Any exterior changes determined to be substantial by
the Director of Community Development shall either require a modification to this
permit or a new permit based on the extent of the change.
6. LANDSCAPE INSTALLATION REPORT
The project is subject to all provisions delineated in the Landscape Ordinance (CMC,
Chapter 14.15). A landscape installation audit shall be conducted by a certified
landscape professional after the landscaping and irrigation system have been
installed. The findings of the assessment shall be consolidated into a landscape
installation report.
The landscape installation report shall include, but is not limited to: inspection to
confirm that the landscaping and irrigation system are installed as specified in the
landscape and irrigation design plan, system tune-up, system test with distribution
_ I!
Resolution No.22-147
Page 6
uniformity,reporting overspray or run-off that causes overland flow, and preparation
of an irrigation schedule.
The landscape installation report shall include the following statement: "The
landscape and irrigation system have been installed as specified in the landscape and
irrigation design plan and complies with the criteria of the ordinance and the permit."
7. LANDSCAPE AND IRRIGATION MAINTENANCE
Per the Landscape Ordinance (CMC, Chapter 14.15), a maintenance schedule shall be
established and submitted to the Director of Community Development or his/her
designee, either with the landscape application package, with the landscape
installation report, or any time before the landscape installation report is submitted.
a. Schedules should take into account water requirements for the plant establishment
period and water requirements for established landscapes.
b. Maintenance shall include, but not be limited to the following: routine inspection;
pressure testing, adjustment and repair of the irrigation system; aerating and de-
thatching turf areas; replenishing mulch; fertilizing; pruning; replanting of failed
plants;weeding; pest control; and removing obstructions to emission devices.
c. Failed plants shall be replaced with the same or functionally equivalent plants that
may be size-adjusted as appropriate for the stage of growth of the overall
installation. Failing plants shall either be replaced or be revived through
appropriate adjustments in water, nutrients, pest control or other factors as
recommended by a landscaping professional.
8. LANDSCAPE PROTECT SUBMITTAL
Prior to issuance of building permits, the applicant shall submit a full Landscape
Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape
Ordinance, for projects with landscape area 500 square feet or more or elect to
submit a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for
projects with landscape area between 500 .square feet and 2,500 square feet. The
Landscape Documentation Package or Prescriptive Compliance Application shall be
reviewed and approved to the satisfaction of the Director of Community
Development prior to issuance of building permits, and additional requirements per
sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be
reviewed and approved prior to final inspections.
9. SOIL ANALYSIS REPORT
A soils analysis report shall document the various characteristics of the soil (e.g.
texture, infiltration rate, pH, soluble salt content, percent organic matter, etc) and
provide recommendations for amendments as appropriate to optimize the
productivity and water efficiency of the soil.
Resolution No.22-147
Page 7
I
The soil analysis report shall be made available to the professionals preparing the
landscape and irrigation design plans in a timely manner either before or during the
design process. A copy of the soils analysis report shall be submitted to the Director
of Community Development as part of the landscape documentation package.
10. LANDSCAPE AND IRRIGATION PLANS
The applicant shall submit detailed landscape and irrigation plans to be reviewed and
approved by Community Development prior to issuance of building permits. The
landscape plan shall include water conservation and pesticide reduction measures in
conformance with Chapter 14.15, Landscape Ordinance, and the pesticide control
measures referenced in Chapter 9.18, Stormwater Pollution Prevention and
Watershed Protection, of the Cupertino Municipal Code.
11. SIGN PROGRAM
A sign program is required for this project. The sign program shall be approved by
the Director of Community Development prior to issuance of sign permits.
12. SITE IMPROVEMENTS
All proposed site improvements shall be completed prior to final occupancy of any
structures approved in conjunction with the project.
13. TRANSFORMERS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
14. TREE PROTECTION
As part of the demolition or building permit drawings, a tree protection plan shall be
prepared by a certified aborist for the trees to be retained. In addition, the following
measures shall be added to the protection plan:
• For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
• No parking or vehicle traffic shall be allowed under root zones,-unless using buffers f
approved by the Project Arborist.
I
Resolution No.22-147
Page 8
• No trenching within the critical root zone area is allowed. If trenching is needed in
the vicinity of trees to be retained, the City's consulting arborist shall be consulted
before any trenching or root cutting beneath the dripline of the tree.
• Wood chip mulch shall be evenly spread inside the tree projection fence to a four-
inch depth.
• Tree protection conditions shall be posted on the tree protection barriers.
• Retained trees shall be watered to maintain them in good health.
• A covenant on the property shall be recorded that identifies all the protected trees,
prior to final occupancy.
The tree protection measures shall be inspected and approved by the certified arborist
prior to issuance of building permits. The City's consulting arborist shall inspect the
trees to be retained and shall provide reviews prior to issuance of demolition, grading
or building permits. A report ascertaining the good health of the trees mentioned
above shall be provided prior to issuance of final occupancy.
15. UTILITY STRUCTURE PLAN
Prior to issuance of building permits, the applicant shall work with staff to provide a
detailed utility plan to demonstrate screening or undergrounding of all new utility
structures [including, but not limited to backflow preventers (BFP), fire department
connections (FDC), post-indicator valves (PIV), and gas meters] to the satisfaction of
the Director of Community Development, Public Works, Fire Department, and
applicable utility agencies.
16. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
17. INDEMNIFICATION
As part of the application,to the fullest extent permitted by law,the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold
harmless the City, its City Council, and its officers, employees, and agents
(collectively, the "indemnified parties') from and against any liability, claim,
action, cause of action, suit, damages, judgment, lien, levy, or proceeding
(collectively referred to as "proceeding") brought by a third party against one or
more of the indemnified parties or one or more of the indemnified parties and the
applicant related to any Ordinance, Resolution, or action approving the project,
the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
Resolution No.22-147
Page 9
indemnification shall include but not be limited to damages, fees, and costs
awarded against the City, if any, and cost of suit, attorneys' fees, and other costs,
liabilities, and expenses incurred in connection with such proceeding whether
incurred by the Applicant, the City, or the parties initiating or bringing such
proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees
and costs shall include amounts paid to the City's outside counsel and shall
include City Attorney time and overhead costs and other City staff overhead costs
and any costs directly related to the litigation reasonably incurred by City. The
applicant shall likewise agree to indemnify, defend, and hold harmless the
indemnified parties from and against any damages, attorneys' fees, or costs j
awards, including attorneys' fees awarded under Code of Civil Procedure section {
1021.5, assessed or awarded against the indemnified parties. The Applicant shall
cooperate with the City to enter a Reimbursement Agreement to govern any such
reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment)if made necessary
by proceedings challenging the project approvals and related environmental
review, if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
18. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice of
a statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day y
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you
fail to file a protest within this 90-day period complying with all of the requirements
of Section 66020, you will be legally barred from later challenging such exactions.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6th day of December, 2022, by the following vote:
Resolution No.22-147
Page 10
Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
Darcy Paul, Mayor Date
City of Cu er '
ATTEST:
Kirsten Squarcia, City Clerk Date
RESOLUTION NO.22-148
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A VESTING TENTATIVE MAP TO MERGING TWO
PARCELS TO ALLOW A MIXED USE DEVELOPMENT CONSISTING
OF 206 CONDOMINIUMS AND 41,268 SQ.FT OF COMMERCIAL
SPACE LOCATED AT 10145 N. DE ANZA BLVD,10118 BANDLEY
DRIVE (APN: 326-34-066,326-34-043) d
SECTION I: PROTECT DESCRIPTION
Application No.: TM-2022-003
Applicant: Larry Wang (Tectonic Builders Corp.)
Property Owner: De Anza Venture, LLC
Location: 10145 N.De Anza Blvd, 10118 Bandley Drive(APN:326-34-066,326-
34-043)
SECTION II: FINDINGS FOR A TENTATIVE MAP:
WHEREAS,the City of Cupertino received an application for a Vesting Tentative Map as
described in Section I of this resolution; and
i
WHEREAS,after consideration of evidence contained in the entire administrative record,
at the public hearing on September 6, 2016,the City Council adopted Resolution No. 16-
091, adopting a Mitigated Negative Declaration for the Marina Development; and
WHEREAS, environmental analysis and peer reviews were conducted by Placeworks, {
Inc. pursuant to the requirements of CEQA, finding that no new or substantially
increased significant environmental effects; and
WHEREAS,on November 10,2022 the Planning Commission recommended on a 5-0 vote
that the City Council adopt the Addendum to the Mitigated Negative Declaration (EA-
2015-05) and approve the Development Permit (DP-2022-001) in substantially similar
form to the Resolution presented (Resolution No. 6964), approve the Architectural and
Site Approval Permit (ASA-2022-002) in substantially similar form to the Resolution
presented(Resolution No. 6965), approve the Tree Removal Permit (TR-2022-026) in
substantially similar form to the Resolution presented(Resolution No.6967)and approve
the Vesting Tentative Map (TM-2022-003),in substantially similar form to the Resolution
presented (Resolution No. 6966); and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on
Resolution No.22-148
Page 2
December 6, 2022 the City Council held a public hearing to consider the Tentative Map;
and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS,the applicant has met the burden of proof required to support the application
for a Tentative Map; and
WHEREAS,, the analysis in the Addedum prepared by Placeworks,Inc. indicates that the
proposed project would not require major revisions to the Mitigated Negative
Declaration adopted on September 6, 2016, due to new or substantially increased
significant environmental effects. Furthermore, there have been no substantial changes
with respect to the circumstances under which these minor modifications would be
undertaken that would require major revisions of the Adopted Mitigation Negative
Declaration due to new or substantially increased significant environmental effects, and
there has been no discovery of new information of substantial importance that would
trigger or require major revisions to the Mitigated Negative Declaration due to new or
substantially increased significant environmental effects.
WHEREAS, the adopted Mitigated Negative Declaration adequately identifies all
environmental effects and adequate mitigation measures for the proposed modifications
to the previously approved project.Therefore,no subsequent or supplemental Mitigated
Negative Declaration is required prior to approval of the proposed project.
WHEREAS, the Planning Commission finds as follows with regard to this application:
a. That the proposed subdivision map is consistent with the City of Cupertino General
Plan.
The subject property is consistent with the General Plan since the property is permitted to have
up to 35 dwelling knits an acre and the project qualifies for a density bonus. The proposed
development is consistent with the intent of the policies of the General Plan for a high density
mixed-use development on this site.
b. That the design and improvements of the proposed subdivision are consistent with
the General Plan.
The off-site improvements are consistent with the City s General Plan policies related to
pedestrian and bicycle safety etc. by improving Stevens Creek Boulevard, minimizing curb-
cuts, and requiring an urban canopy within the public right-of-way. The project is also
consistent with the General Plan's design requirements, since the project qualifies for waivers
for height, side setback, and common open space.
Resolution No.22-148
Page 3
c. That the site is physically suitable for the type of development contemplated under
the approved subdivision.
The proposed tentative map is compatible with the adjoining land uses and no physical
constraints are present that would conflict with anticipated land use development. There are
no topographical anomalies that differentiate this property from adjacent properties. The site
is located on the valley floor, as well as not listed within any environmentally sensitive zone.
d. That the site is physically suitable for the intensity of development contemplated
under the approved subdivision.
The subject property is physically suitable in size and shape in conformance to development
standards and is appropriately configured to accommodate a multi-unit mixed-used
development.
e. That the design of the subdivision or the proposed improvements are not likely to
cause substantial environmental damage nor substantially and avoidably injure fish
and wildlife or their habitat.
The design of the subdivision and proposed'improvements are not likely to substantially injure
fish and wildlife or their habitat because the property is a developed site and located in an
urbanized area where residential land use is allowed.
f. That the design of the subdivision or the type of improvements associated therewith
are not likely to cause serious public health problems. 1
The proposed subdivision design and improvements are not likely to cause serious public health j
problems. The proposed development is consistent with the intent of the policies of the General 1
Plan for a high density mixed-use development on this site, and the on-site and off-site
improvements improve neighborhood walkability through improved sidewalk construction
with size-appropriate driveway cuts and street and private trees planting.
g. That the design of the subdivision and its associated improvements will not conflict
with easements acquired by the public at large for access through or use of property
within the proposed subdivision.
No easement or right-of-way exists currently that would be impeded or conflict with the
proposed subdivision.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the MND Addendum, subject to the conditions which are
enumerated in this Resolution beginning on PAGE 4 thereof, and those contained in all
other Resolutions approved for this Project
Resolution No.22-148
Page 4
The application for a Vesting Tentative Map, Application No. TM-2022-003, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. TM-2022-003 as set forth in the Minutes of the City Council Meeting of
December 6, 2022 Meeting, and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated July 27, 2022 consisting of 91 sheets labeled
as Marina Plaza, A0.0-A11.0, T-01 -T-03, C0.1 -C4.3,JT-1 -JT-3, L1.01 -L3.05, and
TR0.1 -TR0.9, drawn by Tectonic Builders, Giuliani & Kull, Vizion Utility, and JETT
Landscaping,except as may be amended by conditions in this resolution.
2. ACCURACY OF PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations,building setbacks,property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
require additional review.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR-2022-026,DP-2022-001,and ASA-
2022-002 shall be applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. CONDOMINIUM MAP REQUIRED
Prior to the issuance of building permits, the applicant must record a Final
Condominium Map with the County of Santa Clara after approval by the Director of
Public Works, which shall indicate no more than 206 residential condominiums. No
more than one commercial condominium per building is approved.
6. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Resolution No.22-148
Page 5
Community Development Department.
7. INDEMNIFICATION
As part of the application,to the fullest extent permitted by law,the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold
harmless the City, its City Council, and its officers, employees, and agents
(collectively, the "indemnified parties") from and against any liability, claim,
action, cause of action, suit, damages, judgment, lien, levy, or proceeding
(collectively referred to as "proceeding") brought by a third party against one or
more of the indemnified parties or one or more of the indemnified parties and the
applicant related to any Ordinance, Resolution, or action approving the project,
the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs
awarded against the City, if any, and cost of suit, attorneys' fees, and other costs,
liabilities, and expenses incurred in connection with such proceeding whether
incurred by the Applicant, the City, or the parties initiating or bringing such
i
proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual.
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees
and costs shall include amounts paid to the City's outside counsel and shall
include CityAttorney time and overhead costs and other City staff overhead costs
Y Y
and any costs directly related to the litigation reasonably incurred by City. The
applicant shall likewise agree to indemnify, defend, and hold harmless the
indemnified parties from and against any damages, attorneys' fees, or costs
awards,including attorneys' fees awarded under Code of Civil Procedure section
1021.5, assessed or awarded against the indemnified parties. The Applicant shall
cooperate with the City to enter a Reimbursement Agreement to govern any such
reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration,specific plan, or general plan amendment)if made necessary
by proceedings challenging the project approvals and related environmental
review,if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
8. NOTICE OF FEES, DEDICATIONS,RESERVATIONS, OR OTHER EXACTIONS
Resolution No.22-148
Page 6
f
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements,reservation requirements,and other exactions. Pursuant
r
to Government Code Section 66020(d) (1), these Conditions constitute written
notice of a statement of the amount of such fees, and a description of the
dedications,reservations,and other exactions. You are hereby further notified that
the 90-day approval period in which you may protest these fees, dedications,
reservations, and other exactions, pursuant to Government Code Section 66020(a),
has begun. If you fail to file a protest within this 90-day period complying with
all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
CITY ENGINEER'S CERTIFICATE OF
ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS
(Section 66474.18 California Government Code)
I hereby certify that the engineering and surveying conditions specified in Section IV of
Resolution No. 22-146 (DP-2022-001) conform to generally accepted engineering
practices.
Z
Chad M sley,Assistant Director of Public Works
City Engineer CA License 66077
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 61'day of December, 2022, by the following vote:
Members of the City Council
AYES: Paul, Chao, Moore, Wei,Willey
NOES: None
ABSENT: None
ABSTAIN: None
Resolution No.22-148
Page 7
SIGNED:
Darcy Paul, ay Date
Ci of Cu NjrTo�
ATTEST:
Kirsten S uarcia, Ci Clerk Date
RESOLUTION NO. 22-149
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE,AND REPLACE NINETY-
ONE (91) DEVELOPMENT TREES AT THE MARINA SHOPPING CENTER TO
ACCOMMODATE THE CONSTRUCTION OF A MIXED-USED DEVELOPMENT
CONSISTING OF 41,268 SQ. FT. OF COMMERCIAL SPACE AND 206
CONDOMINIUM UNITS LOCATED AT 10145 N. DE ANZA BLVD, 10118
BANDLEY DRIVE (APN: 326-34-066, 326-34-043)
SECTION I: PROTECT DESCRIPTION
Application No.: TR-2022-026
Applicant: Larry Wang (Tectonic Builders Corp.)
Property Owner: De Anza Venture, LLC
Location: 10145 N.De Anza Blvd, 10118 Bandley Drive (APN: 326-34-066; 326-
34-043)
SECTION II: FINDINGS FOR TREE REMOVAL:
1
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WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Tree Removal Permit as described in Section I of this resolution; and
WHEREAS, after consideration of evidence contained in the entire administrative record,
at the public hearing on September 6, 2016, the City Council adopted Resolution No. 16-
091, adopting a Mitigated Negative Declaration for the Marina Development; and
{
WHEREAS, environmental analysis and peer reviews were conducted by Placeworks,
Inc. pursuant to the requirements of CEQA, finding that no new or substantially
increased significant environmental effects; and
WHEREAS,on November 10,2022 the Planning Commission recommended on a 5-0 vote
that the City Council adopt the Addendum to the Mitigated Negative Declaration (EA-
2015-05) and approve the Development Permit (DP-2022-001) in substantially similar
form to the Resolution presented (Resolution No. 6964), approve the Architectural and
Site Approval Permit (ASA-2022-002) in substantially similar form to the Resolution j
presented(Resolution No. 6965), approve the Tree Removal Permit (TR-2022-026) in
substantially similar form to the Resolution presented(Resolution No.6967) and approve
the Vesting Tentative Map (TM-2022-003),in substantially similar form to the Resolution
presented (Resolution No. 6966); and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Resolution No. 22-149
Page 2
Commission held at least one public hearing in regard to this application, and on
December 6, 2022 the City Council held a public hearing to consider the Development
Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS,the applicant has met the burden of proof required to support the application
for a Tree Removal Permit; and
WHEREAS, the analysis in the Addedum prepared by Placeworks,Inc. indicates that the
proposed project would not require major revisions to the Mitigated Negative
Declaration adopted on September 6, 2016, due to new or substantially increased
significant environmental effects. Furthermore, there have been no substantial changes
with respect to the circumstances under which these minor modifications would be
undertaken that would require major revisions of the Adopted Mitigation Negative
Declaration due to new or substantially increased significant environmental effects, and
there has been no discovery of new information of substantial importance that would
trigger or require major revisions to the Mitigated Negative Declaration due to new or
substantially increased significant environmental effects.
WHEREAS, the adopted Mitigated Negative Declaration adequately identifies all
environmental effects and adequate mitigation measures for the proposed modifications
to the previously approved project. Therefore,no subsequent or supplemental Mitigated
Negative Declaration is required prior to approval of the proposed project.
WHEREAS, the City Council finds as follows with regard to this application:
a) That the location of the trees restricts the economic enjoyment of the property by
severely limiting the use of property in a manner not typically experienced by
owners of similarly zoned and situated property, and the applicant has
demonstrated to the satisfaction of the approval authority that there are no
reasonable alternatives to preserve the tree(s).
In order to accommodate for the new development's residential and mixed-use buildings,
underground garage, walkways and internal street network to public open spaces, the
existing trees cannot be preserved in their locations. The applicant proposes replacement
trees throughout the site in excess of the conformance with the Municipal Code Ordinance
requirements and proposes to locate the replacements where tree coverage is needed, while
also proposing to relocate four of the Coast Live Oak Trees.
NOW, THEREFORE, BE IT RESOLVED:
Resolution No.22-149
Page 3
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the MND Addendum, subject to the conditions which are
enumerated in this Resolution beginning on PAGE 3 thereof, and those contained in all
other Resolutions approved for this Project.
The application for a Tree Removal Permit, Application No. TR-2022-026, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. TR-2022-026 as set forth in the Minutes of the City Council Meeting of
December 6, 2022 Meeting, and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated July 27,2022 consisting of 91 sheets labeled
as Marina Plaza, A0.0 -A11.0, T-01 -T-03, C0.1 - C4.3, JT-1 -JT-3, L1.01 -L3.05,
and TR0.1 - TR0.9, drawn by Tectonic Builders, Giuliani & Kull, Vizion Utility,
and JETT Landscaping,except as may be amended by conditions in this resolution.
2. ACCURACY OF PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records: Any misrepresentation of any property data may invalidate
this approval and may require additional review.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2022-001, TM-2022-003, and
ASA-2022-002 shall be applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on.the
first page of the building plans.
5. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be
removed in conformance with the replacement guidelines per Cupertino Municipal
Code Section 14.18.160. The size of the proposed replacement trees shall be modified
Resolution No.22-149
Page 4
as follows to be consistent with the City's Protected Tree Ordinance unless deemed
infeasible by the City's Consulting Arborist:
a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with
one 24-inch box tree;
b. Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree or
one 36-inch box tree; and
c. Over 36 inches shall be replaced with one 36-inch box tree.
If it is determined that it is physically not feasible to plant the required replacements
trees, the Applicant may pay in-lieu fees determined to be appropriate by the
Community Development Director.
6. ARBORIST REVIEW
Prior to building permit issuance, the number, location and species of trees shall be
reviewed and approved by the City in consultation with the City's Consulting
Arborist.
The replacement trees shall be planted prior to building permit final. The Applicant
shall provide the Department of Community Development adequate documentation,
including, but not limited to, photographs, receipts or invoices, to verify that
replacements have been planted. The City's consulting arborist shall inspect the trees
after planting and a report ascertaining the good health of the trees mentioned above
shall be provided prior to issuance of final occupancy.
7. TREE PROTECTION
a. As part of the demolition or building permit drawings, a tree protection plan shall
be prepared by a certified arborist for the trees to be retained. In addition, the
following measures shall be added to the protection plan:
• For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
• No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
• No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained, the City's consulting arborist shall
be consulted before any trenching or root cutting beneath the dripline of the
tree.
• Wood chip mulch shall be evenly spread inside the tree projection fence to a
four-inch depth.
• Tree protection conditions shall be posted on the tree protection barriers.
• Retained trees shall be watered to maintain them in good health.
Resolution No. 22-149
Page 5
• A covenant on the property shall be recorded that identifies all the protected
trees, prior to final occupancy.
b. The tree protection measures .shall be inspected and approved by the certified
arborist prior to issuance of building permits.
c. The City's consulting arborist shall inspect the trees to be retained and shall
provide reviews prior to issuance of demolition, grading or building permits.
d. A report ascertaining the good health of the trees mentioned above shall be
provided prior to issuance of final occupancy.
8. PROTECTED TREES
The applicant understands that the replacement trees may not be removed without a
Tree Removal Permit and that they shall be responsible for ensuring the proper
maintenance and care of the trees. The applicant shall also disclose the location and
species of all replacement trees on site upon sale of the property.
9. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
10. INDEMNIFICATION
As part of the application,to the fullest extent permitted by law,the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold
harmless the City, its City Council, and its officers, employees, and agents
(collectively, the "indemnified parties") from and against any liability, claim,
action, cause of action, suit, damages, judgment, lien, levy, or proceeding
(collectively referred to as "proceeding") brought by a third party against one or
more of the indemnified parties or one or more of the indemnified parties and the
applicant related to any Ordinance, Resolution, or action approving the project,
the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs
awarded against the City, if any, and cost of suit, attorneys' fees, and other costs,
liabilities, and expenses incurred in connection with such proceeding whether
i
incurred by the Applicant, the City, or the parties initiating or bringing such
proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees
and costs shall include amounts paid to the City's outside counsel and shall
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Resolution No.22-149
Page 6
include City Attorney time and overhead costs and other City staff overhead costs
and any costs directly related to the litigation reasonably incurred by City. The
applicant shall likewise agree to indemnify, defend, and hold harmless the
indemnified parties from and against any damages, attorneys' fees, or costs
awards, including attorneys' fees awarded under Code of Civil Procedure section l
1021.5, assessed or awarded against the indemnified parties. The Applicant shall
cooperate with the City to enter a Reimbursement Agreement to govern any such
reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary
by proceedings challenging the project approvals and related environmental
review, if the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
11. NOTICE OF FEES DEDICATIONS RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice of
a statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you
fail to file a protest within this 90-day period complying with all of the requirements
of Section 66020, you will be legally barred from later.challenging such exactions.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6f day of December, 2022, by the following vote:
Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ASSENT: None
ABSTAIN: None
Resolution No. 22-149
Page 7
SIGNED:
�z�9�zGz-Z
a r c y Pau Mayo. Date
City of Cu e
ATTEST:
Kirsten Squarcia, ity Clerk Date