M-2009-02bOFFICE OF THE CITY CLERK
CUPERTINO
July 23, 2009
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
Tim Kelly
KA Real Estate
652 Blair Island Rd, Suite #300
Redwood City, Ca. 94063
ECI Two Results, LLC
1301 Shoreway Rd, Suite 250
Belmont, Ca. 94025
Re: Consider a major amendment modifying the Architectural and Site Approval (ASA-2008-
OS), Use Permit Modification (M-2008-03), Tree Removal Permit (TR-2008-06), and
Director's Minor Modification (DIR-2008-32) for the purpose of extending the expiration
date of these approvals for six years, phasing construction, clarifying conditions of approval,
and modifying the traffic and signal improvement condition, Application No. M-2009-02,
Tim Kelly (Embarcadero Capital Partners), 1 Results Way, APN Nos. 357-20-046, 357-20-
041 (continued from June 16).
Dear Mr. Kelly and To Whom It May Concern:
At its July 21, 2009 meeting, the Cupertino City Council approved the following:
• The Major Amendment (M-2009-02) modifying the Use Permit modification, Architectural
and Site Approval, the Tree Removal permit, and the Director's Minor Modification to
extend the expiration dates for five years, phasing construction, clarifying conditions of
approval, and modifying the traffic and signal improvement condition
• Staff s recommendation to delete Condition of Approval 4b in its entirety from the Planning
Commission resolution, since the condition has already been fulfilled
• Deleted the following sentence from the second bullet of Condition 3: "The Community
Development Director .has the authority to approve reasonable, minor adjustments of the
plans"
• Amended the second sentence in Condition 4a to read: "The improvements may include, but
are not limited to, installing new pedestrian signal heads, a new traffic signal cabinet, a new
traffic signal controller, new traffic signal loops, and replacing damaged pavement on the
results way approach, pavement restoration and lane restriping"
M-2008-03 FINAL APPROVAL July 21, 2009
• Accepted the applicant's Voluntary Contribution Agreement providing $200,000 to reduce
traffic congestion and increase pedestrian/bike safety within'/z mile radius of the project site
west of Highway 85
The Use Permit conditions are as follows unless amended above:
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
1. PAST APPROVALS
The conditions of approval of: ASA-2008-05, M-2008-03, and TR-2008-06 as approved by
the City Council, and DIR-2008-32 as approved by the Director of Community
Development remain in effect, except as may be amended by the conditions contained in
this resolution.
2. EXTENSION OF PERMIT EXPIRATION DATES
The following permit approvals, file numbers: ASA-2008-05, M-2008-03 and TR-2008-06
are extended for a time period of five (5) years from the date of City approval of the
amendment.
File No. DIR-2008-32 is also extended for a time period of five (5) years from the date of
City approval of the amendment, provided that the separate implementation of the Director's
Minor Modification does not vest M-2008-03 orASA-2008-05.
3. CONSTRUCTION PHASING
The approved development described in file nos. ASA-2008-OS and M-2008-03 may be
developed in phases and the applicant may proceed with the construction of all or any of the
three buildings and parking structure in any order, at the applicant's discretion. Applicant in
its discretion may submit a building permit for each of the approved structures separately or
submit a building permit for the entire approved development with detailed plans for the
first building and a list of deferred submittals for the subsequent new buildings as may be
permitted under the California Building Code.
Concurrently with the submittal of a building permit (or deferred submittal) for each new
building, applicant shall submit a phasing plan for approval by the Director of Community
Development, showing that the then-existing office buildings on the property plus the
proposed new buildings, which will have sufficient parking, roadways, utilities and other
accessory facilities to function properly with the subsequent phases. In addition:
• In the first development phase, the applicant shall satisfy all offsite
improvements, phase one public art requirement and install the landscaping and
improvements on both sides of the site's front entry, or pay specified in lieu fees,
as a condition of occupancy of the first new office building, except where fees
are required as a condition of the building permit.
• That Sheet L-1.2 titled "Parking, Refuse & Circulation Plan" dated August 14,
2008, is used to identify the parking improvements required to support each
building and to define the limit of work for each building's improvements. The
2
M-2008-03 FINAL APPROVAL July 21, 2009
Community Development Director has the authority to approve reasonable,
minor adjustments of the plans.
• That the applicant shall have the right to implement an interim parking plan
before all three, new office buildings are completed, in-lieu of the final parking
layout shown on Sheet L-1.2., so long as the Community Development Director
determines that the proposed interim parking plan satisfies parking, parking lot
lighting and circulation requirements at that stage of project development.
4. TRAFFIC, SIGNAL & ROADWAY IMPROVEMENTS
Condition of Approval No. 31 in file nos. ASA-2008-OS and M-2008-03, is revised in its
entirety as follows:
a) The developer shall fund traffic, signal and roadway improvements at the Bubb
Road/Results Way intersection. The improvements include installing new pedestrian
signal heads, a new traffic signal cabinet, a new traffic signal controller, new traffic
signal loops, and replacing damaged pavement on the Results Way approach, removal of
traffic control island(s), pavement restoration and lane restriping.
e~ B) Prior to occupancy of the first new office building, the developer shall make an
irrevocable offer for dedication to the City of an easement for right of way purposes over
land located along the McClellan Road frontage for road widening. The Developer shall
not be responsible for McClellan Road improvement costs once the irrevocable offer of
dedication of the easement has been recorded.
dc)The City Council shall have an opportunity to review and approve the traffic, signal and
roadway improvement plans for this project prior to building permit issuance.
5. 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.
Please review conditions carefully. If you have any questions regarding the conditions of
approval, please contact the Department of Community Development at 408-777-3308 for
clarification. Failure to incorporate conditions into your plan set will result in delays at the
3
M-2008-03 FINAL APPROVAL July 21, 2009
plan checking stage. If development conditions require tree preservations, do not clear the
site until required tree protection devices are installed.
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, 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.
Any interested person, including the applicant, prior to seeking judicial review of the city
council's decision in this matter, must first file a petition for reconsideratio~z with t/ze city clerk
within ten days after the council's decision. Any petition so filed must comply with municipal
ordinazzce code X2.08.096.
Sincerely:
~~ ~
Grace Schmidt
Deputy City Clerk
cc: Community Development
4
VOLUNTARY CONTRIBUTION AGREEMENT
THIS AGREEMENT is made and shall be effective as of July , 2009, by
and between the City of Cupertino (the "City") and ECI Two Results, LLC, a California
limited liability company (the "Developer") for a voluntary contribution of monies for
transportation system improvements.
RECITALS
This Agreement is made with regard to the following facts, intentions and
understandings:
A. Developer is the sponsor of a project located on Results Way and consisting of
three new, two-story office buildings containing 155,500 square feet and atwo-level
parking structure (the "Project"), as shown on the Site Plan attached hereto as Exhibit 1.
B. The City Council approved construction of the Project on September 16, 2008,
pursuant to a Use Permit Modification (M-2008-03), Architectural & Site Approval
(ASA-2008-050), and Tree Removal Permit (TR-2008-06) (the "Project Approvals")
C. The City Council approved an amendment to the Project Approvals on July 21,
2009, in which they removed Developer's obligation to make certain improvements to
McClellan Road.
E. In the interest of facilitating improvements that might benefit the Project, the City
and Development wish to enter into this Agreement by which Developer agrees to make a
voluntary contribution to the City for its subsequent construction of other traffic
improvements in the Project area.
AGREEMENT
The City and Developer agree to the following:
1. Developer shall make a voluntary contribution of Two Hundred Thousand Dollars
($200,000.00) in the form of cash or by posting a letter of credit ("Developer's Payment")
at the time that the City issues the final building permit for the construction of the first
new office building of the Project (not including Building No. 5). Issuance of final
building permit means that no other permits of any kind will be required by the City for
the Developer to complete construction of the building core and shell and related site
work.
2. In consideration and subject to completion of any r
City shall use Developer's Payment only for soft and hard
the City for improvements and incentives to reduce traffic
pedestrian safety in the area west of Highway 85 and locat
mile from the Project site (the "Improvement Area"). City
records tracking all use of Developer's Payment.
wired environmental review,
stg reas~o~j3f~r~c~urred~ , ~
n estion anaa''enha ~, , Nwk,+tob;t
no more than one-half (1/2)
call k~prsci~i~r~e~~d. ~O " CI ~D9
sa.,:
e,.i~
SiBs~a~ure
3. The parties acknowledge that payments pursuant to this Agreement from
Developer to City are exempt as a "source of income" within the meaning of California
Political Reform Act (pursuant to California Government Code Section 87103.6).
4. Upon request from Developer, City shall provide Developer with a detailed
accounting of City's expenditure of Developer's Payment.
5. The City and Developer shall use reasonable efforts to execute documents and to
perform such acts as are reasonably necessary in connection with the performance of its
respective obligations under this Agreement.
6. The City acknowledges and agrees that under this Agreement, the City is not
committing itself or agreeing to approve any land use entitlements or undertake any other
acts or activities relating to the subsequent independent exercise of discretion by the City,
the City Council, the Mayor, or any other agency, commission or department of the City
and that the actions described herein are subject to the prior approval of City, City
Council, and the Mayor or any other agency, commission or department of the City each
in their sole and absolute discretion.
7. To the fullest extent permitted by law, and related to facts and circumstances
arising from and after the date hereof, City agrees to indemnify and hold Developer and
their respective agents (collectively, the "Indemnified Parties") harmless from and
against any loss, expense, cost, compensation, damages (including foreseeable and
unforeseeable consequential damages), attorneys' fees, claims, liens, obligations, injuries,
interest, penalties, fines, lawsuits and other proceedings, judgments, awards, or liabilities
of any kind, known or unknown, contingent or otherwise, equitable relief, mandamus
relief, specific performance, or any other relief (collectively, "Losses") that the
Indemnified Parties may incur as a result of City's use or expenditure of Developer's
Payment. City fully, unconditionally and irrevocably releases, discharges, and forever
waives (collectively, "releases") any and all claims, demands, rights, and causes of action
(collectively, "claims") against, and covenants not to sue or to pay the attorneys' fees and
other litigation costs of any party to sue, Developer or any of its agents for Losses arising
from, accruing from, or due to, directly or indirectly, Developer's Payment or the use
thereof by City.
8. Unless otherwise indicated elsewhere in this Agreement, all written
communications sent by the parties may be by U.S. mail or a-mail, and shall be addressed
as follows:
To City:
Ms. Aarti Shrivastava
Director of Community Development ,~:~," `• ..-s~' - ~ • .__M: aQ.Qg-'_ °a
City of Cupertino
103000 Torre Avenue ~ 1 .-
Cupertino, CA 95014-3255 ~ .~~~ ~;~ "...~r ^~.~0~ 1
~ ~~ ~ ,-
~ .:ts r::
To Developer:
ECI Two Results, LLC
c/o Embarcadero Capital Partners
1301 Shoreway Road, Suite 250
Belmont, CA 94002
Attn: Blake Reinhardt
with a copy to:
Neil H. Sekhri
Gibson, Dunn & Crutcher
555 Mission Street, Suite 3000
San Francisco, CA 94105
Any notice of default must be sent by registered mail.
10. Attorneys Fees. In the event of any litigation or arbitration between the parties
arising out of the breach by a party to comply with its obligations under this Agreement,
the prevailing party shall be entitled to obtain, as part of the judgment or award, all
reasonable attorneys' fees, costs and expenses incurred in connection with such litigation
or arbitration, except as may be limited by applicable law.
11. This Agreement may be executed in any number of counterparts and each
counterpart shall be deemed to be an original document. All executed counterparts
together shall constitute one and the same document, and any counterpart signature pages
may be detached and assembled to form a single original document.
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ERISTING CONDITIONS PROPOSED UPTION BLDG. SF, RECAIIRED COUNT PROPOSED COUNT
BUILDINGI 37,621 Bt/1LU1NGi 37,621 132.0 140.0 °- ~ -~
BUILDING2 23,371 BUILDING2 23,371 82.0 85.0
BUILDING3 34,594 BUILDING3 34,594 121.4 123.0
BUILDING 4 42,500 S(IILDING 4 42.500 149.1 151.0 -. - i ~.
BUILDING 5 (ind. bodge) 77,578 BUILDING 5 (bodge exclutledl 73,400 ' 257.5 260.0 ~
BUlLD1NG6/7 33,730 NewBuildingA 51270' 179.9 204.0 1
BUILDINGS
BUILDING9 22,420
35,884 NewBuilding6
NewBuildingC 51,885'
51,665' 182.0
182.0 184.0
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BUILDING 1g 47 618 ~
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70TALAPPROX.SF• 355,296 TOTALAPPROXSF. 366.486' 1,286 1,331 ~ `-`,
PARKlNGON•GRADE"' 988
PARKING UNDER BLDG 7 180
PARKING UNDERBLDG 5 66
TOTAL EXISTING PARKING 1234
PARKINGON-GRADE" 881
PARKING UNDER BLDG 1 180
PARKING UNDERBLDG5 66
PROPOSEDGARAGEPARKING 204
7AL A KIN R VIDED 1
(Note, Number and bca6on of handicap parking spaces
TBD. and will affect the total parking caant,)
TOTAL PARKING REQUIRED 1286
{366486sf 1265)
(Note: City requinnenl of 1 stal per 285sf Di gross Ploor area)
10TAL HANDICAP ACCESSIBLE
PARKINGRE4UIRED"`" 33.31
(20+(13311100)
Notes:
Galculatlons are approxlmafe and are bassi on schematic tlrawings These areasare subject to drange,
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' Indicates a change m square 7ootaga tmm ex7sh'ng conditions
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RESULTS WAY
CAMPUS
RESULTS WAY
CUPERTINO,CA
Embarcadero
CAPfiAI PARTNERS LLC.
1901 ShaeweY Rae4 Su4e250
Belmont, CBI4omie 84002
wxw.ec04k.can
STUDIO FIVES Design, Inc.
IaMecapeANilechlre
8ik Plemep
575 BridgeeeY BNd
SeuaeliN, CelibmiR 94985
1415.392,1780
1415.332.7789
SSCc -IS"CRY '.
02 REV.PU44NING -081/2008
APPLICA N
01 PLANNING 08252008
APPLICA N
hale: 1'•8741'
PARKING, REFUSE
~ CIRCULATION
PLAN
L-1.2
w<oM~lm w wmu luuA wcwe RRIM mlmnm aww Ao uw.EO as a ~ r~r xo lurwr a uaunq ucn ama® minn wmx aE.el a nE MaErta
M-2009-02
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
Attachment E
RESOLUTION NO. 6557
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING APPROVAL OF A MODIFICATION OF AN ARCHITECTURAL
AND SITE APPROVAL (ASA-2008-OS), USE PERMIT MODIFICATION (M-2008-03), DIRECTOR'S
MINOR MODIFICATION (DIR-2008-32) & TREE REMOVAL PERMIT
(TR-2008-06) TO EXTEND THE EXPIRATION DATE OF THESE APPROVALS FOR FIVE YEARS,
PHASING CONSTRUCTION, CLARIFYING CONDITIONS OF APPROVAL AND MODIFYING
THE TRAFFIC AND SIGNAL IMPROVEMENT CONDITION FOR AN APPROVED
REDEVELOPMENT OF AN EXISTING 19.8 ACRE OFFICE PARK (RESULTS WAY CAMPUS)
SECTION I: PROTECT DESCRIPTION
Application No.: M-2009-02
Applicant: Tim Kelly (for ECI Two Results, LLC)
Location: 1 Results Way
SECTION II• FINDINGS FOR MODIFICATION OF USE PERMIT, ASA, DIRECTOR'S MINOR
MODIFICATION & TREE REMOVAL
WHEREAS, the Planning Commission of the City of Cupertino received an application to
modify an Architectural & Site Approval, Use Permit Modification, Director's Minor
Modification and Tree Removal Permit, as described on Section II of this Resolution; and
WHEREAS, the necessary notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held one or more Public
Hearings on this matter; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
has satisfied the following requirements:
1) The proposed use, 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; and
2) The proposed use will be located and conducted in a manner in accord with the
Cupertino Comprehensive General Plan and the Cupertino Municipal Code; and
3) The Planning Commission finds that the actions contemplated hereunder are within the
scope of the Negative Declaration and that (1) there are no substantial changes proposed
in the project which will require major revisions of the previous negative declaration
due to the involvement of new significant environmental effects or a substantial
increase in the severity of previously identified significant effects; (2) there are no
substantial changes occurring with respect to the circumstances under which the project
is undertaken which will require major revisions of the previous negative declaration
due to the involvement of new significant environmental effects or a substantial
increase in the severity of previously identified significant effects; and (3) there is no
new information of substantial importance, which was not known and could not have
Resolution No. 6557 M-2009-02
Page 2
June 9, 2009
been known with the exercise of reasonable diligence at the time the previous Negative
Declaration was adopted, that shows any of the following:
(A) The project will have one or more significant effects not discussed in the
previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe than
shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to be feasible would in
fact be feasible and would substantially reduce one or more significant effects of the project,
but the project proponents decline to adopt the mitigation measure or alternative; or
(D) Mitigation measures or alternatives which are considerably different from those
analyzed in the previous EIR would substantially reduce one or more significant effects on
the environment, but the project proponents decline to adopt the mitigation measure or
alternative."
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted
in this matter, the application to modify the Architectural & Site Approval, Use Permit
Modification, Director's Minor Modification and Tree Removal Permit are hereby recommended
for approval, subject to the conditions which are enumerated in this Resolution beginning on
Page 2 thereof; and
That the subconclusions upon which the findings and conditions specified in this resolution are
based and contained in the public hearing record concerning Application No. M-2009-02 as set
forth in the Minutes of the Planning Commission Meeting of June 9, 2009, and are incorporated
by reference as though fully set forth herein.
SECTION II: PROTECT DESCRIPTION
Application No.: M-2009-02
Applicant: Tim Kelly (for ECI Two Results, LLC)
Location: 1 Results Way
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
1. PAST APPROVALS
The conditions of approval of: ASA-2008-05, M-2008-03, and TR-2008-06 as approved by
the City Council, and DIR-2008-32 as approved by the Director of Community
Development remain in effect, except as may be amended by the conditions contained
in this resolution.
2. EXTENSION OF PERMIT EXPIRATION DATES
The following permit approvals, file numbers: ASA-2008-05, M-2008-03 and TR-2008-06
are extended for a time period of five (5) years from the date of City approval of the
amendment.
File No. DIR-2008-32 is also extended for a time period of five (5) years from the date of
City approval of the amendment, provided that the separate implementation of the
Director's Minor Modification does not vest M-2008-03 or ASA-2008-05.
Resolution No. 6557 M-2009-02 June 9, 2009
Page 3
3. CONSTRUCTION PHASING
The approved development described in file nos. ASA-2008-05 and M-2008-03 may be
developed in phases and the applicant may proceed with the construction of all or any
of the three buildings and parking structure in any order, at the applicant's discretion.
Applicant in its discretion may submit a building permit for each of the approved
structures separately or submit a building permit for the entire approved development
with detailed plans for the first building and a list of deferred submittals for the
subsequent new buildings as may be permitted under the California Building Code.
Concurrently with the submittal of a building permit (or deferred submittal) for each
new building, applicant shall submit a phasing plan for approval by the Director of
Community Development, showing that the then-existing office buildings on the
property plus the proposed new buildings, which will have sufficient parking,
roadways, utilities and other accessory facilities to function properly with the
subsequent phases. In addition:
• In the first development phase, the applicant shall satisfy all offsite
improvements, phase one public art requirement and install the landscaping
and improvements on both sides of the site's front entry, or pay specified in
lieu fees, as a condition of occupancy of the first new office building, except
where fees are required as a condition of the building permit.
• That Sheet L-1.2 titled "Parking, Refuse & Circulation Plari' dated August 14,
2008, is used to identify the parking improvements required to support each
building and to define the limit of work for each building's improvements.
The Community Development Director has the authority to approve
reasonable, minor adjustments of the plans.
• That the applicant shall have the right to implement an interim parking plan
before all three, new office buildings are completed, in-lieu of the final
parking layout shown on Sheet L-1.2., so long as the Community
Development Director determines that the proposed interim parking plan
satisfies parking, parking lot lighting and circulation requirements at that
stage of project development.
4. TRAFFIC, SIGNAL & ROADWAY IMPROVEMENTS
Condition of Approval No. 31 in file nos. ASA-2008-05 and M-2008-03, is revised in its
entirety as follows:
a) The developer shall fund traffic, signal and roadway improvements at the Bubb
Road/Results Way intersection. The improvements include installing new
pedestrian signal heads, a new traffic signal cabinet, a new traffic signal controller,
new traffic signal loops, and replacing damaged pavement on the Results Way
approach, removal of traffic control island(s), pavement restoration and lane
restriping.
...~ ; .,~~ ~+~r,~n
Resolution No. 6557 M-2009-02 June 9, 2009
Page 4
c~ >3 Prior to occupancy of the first new office building, the developer shall make an
irrevocable offer for dedication to the City of an easement for right of way purposes
over land located along the McClellan Road frontage for road widening. The
Developer shall not be responsible for McClellan Road improvement costs once the
irrevocable offer of dedication of the easement has been recorded.
dc~The City Council shall have an opportunity to review and approve the traffic, signal
and roadway improvement plans for this project prior to building permit issuance.
5. 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 this 9th day of June 2009, at a Regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES: COMMISSIONERS: Chairperson Giefer, Vice Chair Brophy, Kaneda
Lee, Miller
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST:
/ s / Aarti Shrivastava
Aarti Shrivastava, Director
Community Development Department
APPROVED:
/ s/Lisa Giefer
Lisa Giefer, Chair
Planning Commission
G: ~ Playi n i~ig ~ PDREPORT ~ RES ~ 2009 ~ M-2009-02 res.doc