Cupertino City Council
December 6, 2022

available for the carrier’s use, the City will reserve the location for a period of one year, or until the location is requested by another carrier, at which time the City will notify the original requestor that an encroachment permit application must be submitted within 30 days or the reservation will be forfeit.

When a Pole Availability Request is made, the applicant shall provide information to the City that shows why the proposed location is either 1) the most preferred site in the general area, or 2) the only feasible option available to address the carrier’s needs.

See Attachment C for further information on siting preferences guidelines.

A Pole Availability Request submittal should consist of:
• A map showing the location of the streetlight pole where a small cell facility is desired to be located. This map should be in the form of a Google KMZ file, or some other file type that clearly shows the streetlight being indicated. • Information on the equipment and layout being proposed (e.g. all equipment within the shroud, equipment on the pole screened by signs, base enclosure, underground vault, or equipment on the pole situated to minimize views of equipment).

The Public Works Department will review, evaluate and respond to Pole Availability Requests within 14 days of submittal. The City prefers that no more than 10 locations for Pole Availability Requests be submitted for review at a time. Pole Availability Requests are not subject to FCC shot clocks, and do not begin the shot clock timeline.

Applicants are encouraged to reach out to the Department of Public Works regarding pole availability early to minimize time and engineering costs should the pole be unavailable for their use. Any poles previously reserved by the carrier that are within a 500-foot radius of a newly requested site must be relinquished.

If the location of a Pole Availability Request is deemed acceptable, the applicant may submit an Initial Application.

Items to include for Pole Availability Request:
• Electronic Map of proposed locations.
• Information on the type of installation being proposed, including all proposed equipment on the pole, and within the shroud.
• Preferred siting justification for poles located in Category 2 and 3 areas, as indicated in Attachment C.

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2) Initial Encroachment Permit Application Submittal Requirements:

All encroachment permit applications for small cell facilities within the public right of way shall be submitted to the Public Works Department for review. The City prefers that an applicant have a maximum of ten (10) active Initial Encroachment Permit Applications at any time. If an applicant submits more than 10 applications, the City reserves the right to request that the applicant enter into an agreement tolling the shot clock for a reasonable period to allow City review of the applications, or that each application in excess of ten (10) be accompanied by an initial $5,000 deposit to cover third-party review costs. Deposits submitted to the City will be used to cover City staff time as well as actual third-party costs plus a 15 percent (15%) administrative fee as established in the City’s fee schedule. Any costs the City incurs that exceed the initial deposit shall be paid by the applicant prior to encroachment permit issuance.

Any unused portions of submitted deposits will be refunded to the applicant.

Submittals shall show the proposed location and the facilities planned for construction, with a photo-simulation depicting the existing and proposed conditions (see Attachment A for information to be included in the photo simulation). The submittal shall also provide information on the anticipated power consumption (total wattage) of the facility, and whether fans or other noise emitting equipment is being proposed. New facilities located in residential areas shall be of a type that does not emit noise. The submittal for any location where a fan is proposed shall include a report, stamped and signed by a qualified registered engineer, on the anticipated DBA levels and shall show compliance with the City of Cupertino’s noise ordinance.

If a Pole Availability Request was not made before the initial encroachment permit application submittal, the applicant shall submit information regarding site preferences (per Attachment C) at this time.

Public Works will review the proposed location and facilities for general compliance with these guidelines. Features that help to reduce visual impacts include:
• Locating equipment in underground vaults, where feasible. • Concealing equipment in the antenna shroud and behind street signs; • Concealing equipment within a base enclosure integrated into the pole; • Concealing wires from view;
• Locating new facility installations near property corners or side property lines, and not directly in front of residences and businesses; • Minimizing views from habitable living areas (such as bedrooms or living rooms) of residential units which directly face the proposed small cell facility; CC 12-06-2022
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• Locating facilities no closer than 20 feet to occupied structures or 100 feet to a school structure.
• Ensuring there are no flashing lights or large repetitive warning stickers that are unnecessary, distracting, poorly placed, or non-essential. Warning stickers shall be placed where appropriate, and not at pedestrian eye level, unless directed to do so by the FCC or other regulatory agencies; • Ensuring that pole height increases are minimized, but not more than 20- percent of the existing pole height;
• Ensuring the dimensions of equipment offset from poles are the smallest feasible;
The initial review process may result in the Public Works Department having comments or concerns regarding the proposed design and location. The Public Works Department may request that facilities be relocated and/or the design be modified to better fit the existing setting.

The applicant shall ensure that the operation of new facilities will not cause interference with existing facilities, such that an existing facility would be required to increase its power source or install other/additional equipment to continue proper service. These potential impacts should be considered, measured and mitigated prior to approval of a new facility.

After the Public Works Department deems the initial submittal acceptable, the applicant will be required to notify the surrounding property owners.

Items required for Initial Encroachment Permit Submittal:
• Preliminary construction drawings showing site plan and proposed equipment to be installed.
• Photo simulations showing existing and proposed appearance of the facility.
• Circuit trace and power consumption calculation to ensure adequate power is available, or proposed modifications to circuitry to facilitate power. • Electromagnetic energy (EME)/radio frequency report to demonstrate that allowable exposure limits are not exceeded.
• Acoustic noise level report on the anticipated DBA levels that shall show compliance with the City of Cupertino’s noise ordinance. • Structural analysis study to demonstrate that the existing pole or a new pole will adequately support all proposed equipment.

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3) Notification Process:

After the City has vetted and provided preliminary approval of a site and the proposed design for a new small cell facility, the Applicant is required to notify all property owners and residents within 500 feet of the proposed installation.

Notification materials to residents will include a description of the project and the purpose of the proposed facility. The Applicant will provide to the City a mailing list that includes both owners and tenants (occupant designation for tenants is acceptable) to be notified of the proposed facility installation.

Direct Mailers/Courtesy Letter
Property owners whose properties are within 500-feet of a proposed facility shall be notified by registered mail via the U.S. Postal Service. Property owners will be given 21 calendar days to contact the Applicant with any questions or concerns. The Applicant shall provide an affidavit stating all property owners on the mailing list were sent letters, and it shall indicate the date the letters were deposited with USPS.

The letter will provide a description of the purpose of the proposed facility and an aerial map identifying the proposed location of the facility. In addition, photo simulations of the proposed equipment and an excerpt of the construction plans showing the site plan and elevations are to be included. The notification shall also include a telephone number and email address for the Applicant’s Community Liaison, whom property owners may contact with any questions or concerns regarding the facility. The Applicant’s Community Liaison shall reply to all inquiries within 72 hours of contact and provide a copy of each response to the City.

Additionally, the notification shall include a contact number for the Public Works Department – (408) 777-3354 – so that property owners can contact the City directly, if they so prefer. The applicant shall log all contact with property owners or residents/occupants, which shall include the date, owner/resident’s name, address and the specific questions or concerns the owner/resident has regarding the facility.

Upon completion of the notification period, the Applicant shall provide the Public Works Department with a compilation of all inquiries received (if any), including a breakdown of the comments and concerns regarding the application, and, when possible, the inquirer’s name, address and contact information. The list shall be accompanied by an affidavit stating all inquiries received have been compiled and provided to the City, or that no inquiries were received in such event. The applicant will work with the City to address any concerns to the maximum extent practicable.

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Items required for submittal to the City for the Notification Process include:
• A copy of the letter and exhibits to be mailed to residents that own or live within 500-ft of a proposed location.
• An aerial map showing the location of the proposed new facility and the properties outlined that are within the 500-ft outreach area. • A list of all property owners and residents to receive the notification, including their address.
• Affidavit stating all listed property owners and residents were mailed the letter and the date the letters were deposited with USPS.

Items required after the notification period has ended:
• Compiled list of all inquiries received.
• Affidavit stating all inquiries were transmitted to the City. 4) Final Encroachment Permit Application Submittal Requirements:

After the notification period is concluded, and the applicant and the City have worked to address the comments received through the notification process, the applicant will submit to the Public Works Department the Final Encroachment Permit Application.

Items to be submitted for Final Encroachment Permit Application:
• Completed Encroachment Permit Application.
• Final signed and stamped Improvement Plans (including photo simulations and electrical plans).*
• Traffic Control Plans.
• Contractor’s Insurance Certificate (with the City of Cupertino named as additionally insured).
• City of Cupertino current business license for both Applicant and Contractor.
• Payment of encroachment permit fees.
• List of properties to receive construction notification Door Hangers. • Encroachment Agreement/Commencement Letter establishing a pole license for the site, a start date for annual use payments, and connecting the installation to the License Agreement.
(*See Attachment A for items to be included on the plans.) CC 12-06-2022
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Door Hanger Notice
After the Public Works Department approves an encroachment permit, and at least one-week before commencement of construction activities, the applicant shall place a “Door Hanger” Notice at all properties that will be affected by construction of the facilities. Properties that would be affected include, but are not necessarily limited to, those that are immediately adjacent to, as well as across the street from, the construction operations and staging areas, any properties where “No Parking” signage is placed in front of their residences, and those properties that would be affected by traffic control facilities or that may experience restricted access due to the operations. This notice will inform the property owners of the upcoming construction and will offer a contact number for the applicant so that property owners can call in construction related inquiries and concerns.
5) Post-Construction Requirements:

After a facility has been constructed, the Applicant shall provide to the Public Works Department as-built drawings showing any modifications from the approved drawing plans (any modifications made during construction shall be approved by the City prior to implementation). If no modifications from the approved plans were made, the Applicant shall simply make this point clear after construction is completed, and the approved plans on file with the City shall be utilized for the asbuilt drawing requirement. The Applicant will also be required to cover all reasonable costs associated with the measuring, recording, reporting and monitoring of emissions, including EMR/RF and noise associated with the wireless communications facility. Such information shall be provided, within 30 days of activation of the equipment, in an Activation Report which shall be made available to any interested party through the City of Cupertino’s Public Works Department.

The Activation Report shall be prepared by a qualified registered engineer (in the State of California), or other technical expert approved by the City of Cupertino and shall provide information that demonstrates the facility will not cause any potential exposure to RF emissions that exceed adopted FCC standards for human exposure.

Testing shall be conducted in compliance with FCC regulations governing the measurement of RF emissions and shall be conducted during normal business hours on a non-holiday weekday with the subject equipment measured while operating at maximum power. For all measurements made, evidence must be submitted showing that the testing instrument(s) used were calibrated within their manufacturer's suggested periodic calibration interval, and that the calibration is by methods traceable to the National Bureau of Standards. At the sole option of the City CC 12-06-2022
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Engineer, an agent of the City may monitor the performance of testing required for preparation of the Activation Report.

Notification prior to Activation Report
The Applicant shall undertake to inform and perform appropriate tests for residents of dwelling units located within 100 feet of the transmitting antennae at the time of testing for the Activation Report.
• At least 14 calendar days prior to conducting the testing required for preparation of the Activation Report, the Applicant shall notify the Department of Public Works, and shall send a letter, via registered mail through the U.S. Postal Service, to the resident of any dwelling unit within 100 feet of a transmitting antenna, notifying them of the date on which testing will be conducted.
• Residents notified of the testing may request, in advance of the test, that the Applicant conduct testing of total power density of RF emissions within their residence on the date on which the testing is conducted for the Activation Report.
• Within 30 days of the installation and operation of the facilities, the Applicant shall confirm and submit in writing to the Public Works Department, through an Activation Report, that the facilities are being maintained and operated in compliance with applicable Building, Electrical and other Code requirements, as well as applicable FCC emissions standards.

See Attachment B for the Wireless Communications Facility Project Completion Checklist. Each item on the checklist shall be verified prior to sign-off and closeout of the encroachment permit.

Items to be submitted for Final Encroachment Permit issuance:
• As-built drawings (if applicable).
• Activation Report.

Key Milestones

1. Identify placement of facilities - Applicant shall work with the City of Cupertino regarding the planned build out of wireless communications facilities and shall supply a map of proposed siting locations as plans and information become available.

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2. Complete field verification – Applicant shall have an engineer visit each individual location/area to identify living units, building addresses, existing facilities, distance measurements, Public Right of Way and private property lines. The Engineer shall also identify other potential sites for Small Cell Facilities if the Applicant’s first choice is not realized. Applicant will consider public safety, aesthetics, the overall network design, and will be will work to comply with all siting criteria.

3. Pole Availability Request and Reservation – Applicant is encouraged to submit a pole availability request package to the City of Cupertino for review and comment.

The package should include a vicinity map, information on the type of installation being proposed, and preferred siting justification, if applicable. The City will review the request for compliance with these guidelines, location concerns and for aesthetic qualities and features of the equipment. The City may request, at this time, that alternative locations or design features be utilized or considered.

Applicant is encouraged to work with the City to address initial comments and concerns prior to the initial encroachment permit application submittal.

4. Initial Encroachment Permit Application Submittal – Applicant shall submit preliminary construction drawings showing the site plan and the proposed equipment to be installed, photo simulations of the existing and proposed appearance of the streetlight pole, a circuit trace and power consumption calculations, electromagnetic energy (EME)/radio frequency report to demonstrate that allowable exposure limits are not exceeded; acoustic noise level report on the anticipated DBA levels that shall show compliance with the City of Cupertino’s noise ordinance (if applicable), and a structural analysis study to demonstrate that the existing pole or a new pole will adequately support all proposed equipment. If a Pole Availability Request was not made before the initial encroachment permit application submittal, the applicant shall submit information regarding site preferences (per Attachment C) at this time.

5. Notification Process - After the Public Works Department reviews and supports the initial encroachment permit application submittal, the Applicant will mail courtesy letters to all residents within 500 feet of the facility.

6. Response to Inquiries - Applicant will provide a Community Liaison to act as a point of contact for notified property owners. The Community Liaison will retain an log of all inquiries received and the disposition of each. Applicant will respond to all customer inquiries within 72 hours. Customer concerns will be identified and reviewed by Applicant’s construction and engineering staff.

7. Inquiry Report - Applicant will provide a report to the City detailing all customer inquiries. The information will include customer name, date of receipt, date of response, contact information and resolution. Public Works will review inquiries CC 12-06-2022
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from residents and will provide recommended actions for the Applicant to incorporate. These actions may consist of revising the proposed wireless communications facility location or scope, re-notifying affected residents of modifications to facilities and/or requesting installation of additional screening for facilities.

8. Final Encroachment Permit Application Submittal – When the notification process and subsequent rectification has been completed to the satisfaction of the City Engineer, the Applicant will submit a complete application package to the Public Works Department that addresses the City Engineer’s comments and concerns.

Once all requirements have been addressed, and permit fees have been paid, the Public Works Department will issue the necessary permits to the applicant.

9. Construction Notices – The Applicant will have a door hanger delivered to residents affected by construction of the facilities after the necessary permits have been issued, and at least 1 week prior to commencement of construction.

10. Post-Construction Activation – After a wireless communications facility has been constructed, and within 30 days of activation, the Applicant will be required to measure, record the emissions from the facility. An Activation Report shall be provided which certifies whether the equipment is in compliance with established FCC emissions limits and/or other relevant government agencies.

Policies and Requirements:

These guidelines are meant to provide a general overview of the procedures and requirements for installation of wireless telecommunications facilities on City-owned poles located within the public right of way. Additional conditions, information and/or procedures may be necessary based on the circumstances, project scope and the location being proposed by the Applicant, or as deemed necessary by the City Engineer.

The Applicant or its successors shall comply fully with all conditions specified in these guidelines, and as modified by the City Engineer. Failure to comply with any condition shall constitute grounds for revocation. If an Activation Report includes a finding that RF emissions for the site exceed FCC Standards, the Applicant will be required to immediately cease and desist operation of the facility until such time that the violation is corrected to the satisfaction of the City Engineer.

Any carrier/provider authorized by the City Engineer to operate a specific wireless communications facility installation may assign the operation of the facility to another carrier licensed by the CPUC and FCC, provided that such transfer is made known to CC 12-06-2022
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the City Engineer in advance of such operation, and all conditions of approval for the subject installation are carried out by the new carrier/provider.

Please contact the Public Works Department at (408) 777-3354, or by email at [email protected], with any questions or concerns regarding these guidelines.

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ATTACHMENT A
Information to be shown on Plans and Simulations to ensure clarity YES NO 1 Cover Sheet | Show the correct project site location on cover sheet (with a vicinity map). Indicate the street address(s) for the nearest building(s). 2 Cover Sheet | Provide a clear project description describing types and numbers of equipment. Also indicate if pole will be replaced (with existing and proposed heights) or if any existing road signage is proposed to be relocated or removed. 3 Cover Sheet | Provide information in a checklist format to ensure conformance by installers.
4 Site Plan | Show location of the proposed pole with relation to the existing travelled way, property lines, sidewalks, structures within 20 feet of the pole, and other surface equipment/facilities.
5 Site Plan | Show location of any new vaults proposed. 6 Elevation Sheet | Show location of any warning stickers. RF warning sticker shall be facing out to street and near antenna, or away from street and near antenna if no window within 50 feet.
7 Elevation Sheet | Indicate height to top of pole, antenna, top and bottom of equipment enclosures.
8 Elevation Sheet | Show any street signage that will is to be placed on the pole, and that is used to screen small cell equipment. Ensure signage and equipment are shown to scale. Relocated signage shall be placed at an elevation that is consistent with the original height of the signs.
9 Elevation Sheet | Show equipment stacked together as close as possible while complying with airflow requirements.
10 Elevation Sheet | Ensure other elements (e.g. NEMA, PBX or J boxes), ground bus bars, and base plate mounts are shown, if utilized.
11 Elevation Sheet | Clearly show offset (distance) of equipment cabinets from pole, including the maximum offset from the pole to the outermost edge of facilities. 12 Photo Simulations | Show equipment sizes, enclosures, signs and offsets correctly. 13 Photo Simulations | Show RF warning stickers, if visible from given perspectives. 14 Photo Simulations | Use perspectives that provide a true sense of distance to nearest residential windows or primary facades of buildings, as well as scale of the facilities. 15 Structural Design and Calculations | Provide analysis that shows structural adequacy of all proposed facilities including foundation, pole and equipment. 16 Circuit Analysis | Provide the streetlight single line diagram of the electrical network that serves the proposed pole. Plan shall show any modifications to the system that are necessary to serve adequate electrical power to the City’s streetlights and small cell facilities.
17 Electrical Plans | Provide an electrical and grounding diagram for the small cell facility from the service point pull box and within the pole.
18 Traffic Control Plans | Plans that show traffic control to facilitate construction. Plans shall conform to the latest California MUTCD requirements.

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ATTACHMENT B
Site Completion Checklist YES NO
1 Spacing of Support Elements: Support equipment (e.g. Disconnect Switch and Mrrus) to be clustered (vertically) as close as technically feasible on pole. 2 Logo Removal: All equipment logos, other than those required by regulation (e.g. node identification of shutdown signage) shall be painted over or removed.

Raised/Depressed logos/text on equipment enclosures (e.g. RRUs), if present to be sanded off, or covered with a sticker, and then painted. 3 Signage: FCC mandated RF warning signage shall be placed as mandated by the FCC. Where no guidance is provided by the FCC, signage shall face out to street when wireless facility is located in front of, or near a window. Signage shall face toward building if there are no windows present.
4 Notification: 14 days prior to performing emissions testing, applicant shall inform residents of dwelling units within 100-feet and offer to perform a test in their dwelling.
5 Testing: Measure and record emissions, including EMR/RF and noise. 6 Report: Within 30 days of activation, applicant will submit an activation report to the Public Works Department that certifies the facility is operating within FCC emissions limits.

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ATTACHMENT C
Siting Preferences:

Small cell facilities shall be located to reduce their visual and aesthetic impacts upon the surrounding public right of way and public vantage points. To accomplish this, the City prefers siting of small cell facilities that minimizes the need for multiple installations. The City also prefers placement of wireless facilities on streetlight poles that are the most distant from occupied structures.

The following Categories of sites for small cell facility installations are listed in order of preference. As described below, Category 1 sites are preferred over Category 2 sites, and small cell facilities in Category 3 sites are generally not permitted, either in Category 1 or Category 2 areas:
1) Category 1 (Preferred Sites) - Non-residential zoning districts 2) Category 2 (Less Preferred Sites) – All residential zoning districts The following street types (as defined by the Cupertino General Plan) in residential zoning districts are listed from more preferred to less preferred for placement of small cell facilities:
a. Boulevards and Arterials
b. Major Collectors
c. Minor Collectors
d. Neighborhood Connectors
e. Residential Streets
Where an applicant proposes a facility on a streetlight pole in a Category 2 site, the applicant shall provide documentation showing that all streetlight poles in any Category 1 site and in any more-preferred Category 2 site within 500 feet of the proposed facility are infeasible to meet the carrier’s needs (e.g. proximity to signal barriers, such as trees, capacity and coverage needs, etc.). For example, a facility proposed for a Category 2.e (Residential Street) site would need to provide documentation showing that all Category 1 and Category 2.a,

2.b., 2.c, and 2.d sites within 500 feet are infeasible.

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3) Category 3 (Least Preferred Sites) – Any zoning district A facility shall not be permitted in a Category 3 site if non-Category 3 sites are available within 500 feet of the proposed facility, unless the applicant can provide documentation showing that a Category 3 site is the only feasible option available to address the carrier’s needs.

The following locations are considered Least Preferred sites:
a. Any installation in the right of way that would result in a facility being located closer than 15 feet to a public roadway intersection. An intersection is measured from the start of the curb radius.
b. Any installation in the right of way that would result in a facility being located closer than 500 feet to any other small cell facility in the right of way owned by the same wireless carrier.
c. Any installation in the right of way that would result in a facility being located closer than 20 feet to an occupied structure.
d. Any installation in the right of way that would result in a facility being located closer than 100 feet to any public-school building. e. Any installation in the right of way that would result in a facility being located closer than 100 feet to any publicly assessible playground. For purposes of this guideline, playground shall mean an improved outdoor area designed, equipped, and set aside for children’s play that is not intended for use as an athletic playing field or athletic court, and shall include any playground equipment, fall zones, surface materials, access ramps, and all areas within and including the designated enclosure and barriers.
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PROPOSED NOTICE

SIGNAGE

PROPOSED VERIZON WIRELESS

CYLINDRICAL ANTENNA
(CONCEALED WITHIN (N) SHROUD)

PROPOSED FRP

CONCEALMENT SHROUD
PROPOSED SHT.

MTL. SKIRT

EXISTING STREET
0'-0"

EXISTING GRADE
±28'-0" A.G.L. (VARIES PER SITE)

TOP OF EXISTING LIGHT POLE

EXISTING SIDEWALK
±30'-0" A.G.L. (VARIES PER SITE)
TOP OF EXISTING LUMINAIRE ±5'-5"
±33'-5" A.G.L.
(TOP OF EXISTING POLE ±5'-5")

TOP OF PROPOSED

CONCEALMENT SHROUD
NOTES:

1. FRP CONCEALMENT SHROUD, SKIRT AND PEDESTAL BASE SHALL BE PAINTED TO MATCH EXISTING LIGHT POLE.

2. DESIGN SHOWN ASSUMES EXCLUSION OF GPS ANTENNA.

3. DESIGN SHOWN IN BASED ON AMPHENOL WB080X06FX60 ANTENNA, CONCEALMENT SHROUD/ SKIRT BY WIRELESS STRUCTURES CONSULTING, ERICSSON RRUS32 UNITS.

4. DESIGN AND HEIGHTS MAY VARY ON A SITE BY SITE BASIS BASED ON EXISTING SITE/ POLE CONDITIONS AND EXISTING POLE MOUNTED APPURTENANCES.
1'-3" DIA. ±2'-0"

PROPOSED

DISCONNECT

PROPOSED WIRELESS
("SMART") POWER METER

CONCEALED WITHIN

CONCEALMENT SHROUD
±9'-0" A.G.L.

TOP OF PROPOSED DISCONNECT
±4'-0" A.G.L.

TOP OF PROPOSED

PEDESTAL BASE
2'-6" SQ.

PROPOSED VERIZON WIRELESS

EQUIPMENT CONCEALED WITHIN
PEDESTAL BASE (2-RRUS 32 UNITS,
2-DIPLEXERS, 1-FIBER DEMARC)

PROPOSED LOUVERED
PANEL, TYP. (4) SIDES FOR

EQUIPMENT VENTILATION

EXISTING OR NEW

STEEL LIGHT POLE

ERICSSON
ERICSSON 16" CLR.

PROPOSED NOTICE

SIGNAGE

PROPOSED VERIZON WIRELESS

CYLINDRICAL ANTENNA
(CONCEALED WITHIN (N) SHROUD)

PROPOSED FRP

CONCEALMENT SHROUD
PROPOSED SHT.

MTL. SKIRT
15'-3" A.G.L.

TOP OF PROPOSED RRU UNIT

EXISTING STREET
0'-0"

EXISTING GRADE
±28'-0" A.G.L. (VARIES PER SITE)

TOP OF EXISTING LIGHT POLE

EXISTING SIDEWALK

PROPOSED CABLE
SHROUD, TYP.
18'-6" A.G.L.

TOP OF PROPOSED RRU UNIT
16'-7" A.G.L. MIN.

BOTTOM OF PROPOSED RRU UNIT
±30'-0" A.G.L. (VARIES PER SITE)
TOP OF EXISTING LUMINAIRE ±5'-5"
±33'-5" A.G.L.
(TOP OF EXISTING POLE ±5'-5")

TOP OF PROPOSED

CONCEALMENT SHROUD
NOTES:

1. FRP CONCEALMENT SHROUD, SKIRT, RRU UNITS AND CABLE SWEEPS SHALL BE PAINTED TO MATCH EXISTING LIGHT POLE.

2. DESIGN SHOWN ASSUMES EXCLUSION OF GPS ANTENNA.

3. DESIGN SHOWN IN BASED ON AMPHENOL WB080X06FX60 ANTENNA, CONCEALMENT SHROUD/ SKIRT BY WIRELESS STRUCTURES CONSULTING, ERICSSON RRUS32 UNITS.

4. DESIGN AND HEIGHTS MAY VARY ON A SITE BY SITE BASIS BASED ON EXISTING SITE/ POLE CONDITIONS AND EXISTING POLE MOUNTED APPURTENANCES.

5. EXISTING TRAFFIC SIGN(S) TO BE RELOCATED AS REQUIRED TO SCREEN RRU UNIT. 1'-3" DIA. ±2'-0"

EXISTING OR NEW

STEEL LIGHT POLE

PROPOSED

DISCONNECT
13'-4" A.G.L. MIN.

BOTTOM OF PROPOSED RRU UNIT

PROPOSED WIRELESS
("SMART") POWER METER

CONCEALED WITHIN

CONCEALMENT SHROUD
±9'-0" A.G.L.

TOP OF PROPOSED DISCONNECT
PROPOSED DIPLEXER, TYP.

OF (2), CONCEALED WITHIN

CONCEALMENT SHROUD
(N) RRUS 32 UNIT W/
PSU AC 08 POWER
INTERFACE, TYP. OF (2)
1/2"=1'-0"
SCALE: STACKED RRU UNIT ELEVATIONS 1/2"=1'-0" 1' 2' 4'SCALE:
1' 2' 4' PEDESTAL BASE ELEVATIONS
2 1
Attachment D
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CITY OF CUPERTINO
Legislation Text
Subject: Consider approval of a proposed development that will include approximately 41,268 sq. ft. of commercial space and 206 residential condominium units. (Application No(s): DP-2022-001, ASA2022-002, TR-2022-026, TM-2022-003; Applicant(s): Larry Wang (Tectonic Builders Corp.); Location:
10145 N. De Anza Blvd, 10118 Bandley Dr., APN(s): 326-34-066, 326-34-043.) Staff recommends that the City Council:

1. Adopt Resolution No. 22-146 adopting an addendum to a previously adopted Mitigated Negative Declaration and approving the Development Permit (DP-2022-001) (Attachment A);

2. Adopt Resolution No. 22-147 approving the Architectural and Site Approval Permit (ASA2022-002) (Attachment B);

3. Adopt Resolution No. 22-148 approving the Vesting Tentative Map (TM-2022-003) (Attachment C); and

4. Adopt Resolution No. 22-149 approving the Tree Removal Permit (TR-2022-026) (Attachment D)
Presenter: Gian Martire, Senior Planner
File #: 22-11585, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
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CITY COUNCIL STAFF REPORT
Meeting: December 6, 2022
Subject
Consider approval of a proposed development that will include approximately 41,268 sq. ft. of commercial space and 206 residential condominium units. (Application No(s): DP‐ 2022‐001, ASA‐2022‐002, TR‐2022‐026, TM‐2022‐003; Applicant(s): Larry Wang (Tectonic Builders Corp.); Location: 10145 N. De Anza Blvd, 10118 Bandley Dr., APN(s): 326‐34‐ 066, 326‐34‐043.)
Recommended Actions
Staff recommends that the City Council:

1. Adopt Resolution No. 22‐146 adopting an addendum to a previously adopted Mitigated Negative Declaration and approving the Development Permit (DP‐2022‐ 001) (Attachment A);

2. Adopt Resolution No. 22‐147 approving the Architectural and Site Approval Permit (ASA‐2022‐002) (Attachment B);

3. Adopt Resolution No. 22‐148 approving the Vesting Tentative Map (TM‐2022‐003) (Attachment C); and

4. Adopt Resolution No. 22‐149 approving the Tree Removal Permit (TR‐2022‐026) (Attachment D)
Project Data:

General Plan Land Use
Designation
Commercial/Office/Residential
Special Planning Area Heart of the City Specific Plan (Crossroads subarea) Zoning Designation P (CG, Res)
Lot Area 5.1 Acres
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1 The Housing Element identified that 200 dwelling units would be constructed with a project developed on the Marina Priority Housing Element site. Therefore, there would be 200 units developed on the block with a maximum density of 35 du/acre for APN 326‐34‐066 (primary Marina Foods Plaza site). 2 Parking required for the Residential units per the Municipal Code is 2 spaces per unit for a total of 412 spaces. However, Density Bonus law (Govt. Code Section 65915(p)) allows applicants to propose different parking standards built into state law by number of bedrooms per unit, ranging between 0.5 space for studio/one‐bedroom units to 2.5 spaces for units with 4 or more bedrooms. Thus, the applicant’s minimum parking requirement is 305 spaces.

Allowed/Required Proposed
Maximum units based
on Housing Element 179 1 206 (15% density bonus)
Height of Structures
Up to 45 feet
Building A – 58 feet 6‐inches
at the roofline
(Density Bonus Law Waiver
Requested that exceeds the
height limit)
Building B– 44 feet
Building C – 55 feet at the
roofline
(Density Bonus Law Waiver
Requested that exceeds the
height limit)
Setbacks
Front 35 feet from the face of curb   35 feet from the face of curb Side (Minimum One‐
half (1/2) the height of the
Building or ten (10) feet,
whichever is greater)
Building A ‐ 28 feet 6‐
inches required
Building A – 10 feet
(Density Bonus Law Waiver
Requested for side setback
reduction)
Building B – 22 feet required Building B– 102 feet
Building C ‐ 27 feet 6‐inches
required
Building C – 22 feet 6‐inches
(Density Bonus Law Waiver
Requested for side setback
reduction)
Parking
Residential 305 Spaces 2 338 Spaces
Retail 166 spaces 269 spaces
Total on‐site 471 Spaces 607 Spaces
Private Open Space (s.f.
per unit) 60 s.f.   Between 70 s.f. – 214 s.f.

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Background:

Application Requests
On February 21, 2022, the City received an application for a preliminary application under SB 330 4 for the proposed Marina redevelopment. SB 330 allows applicants to submit their project application within 180 days of their preliminary application, with certain vested rights (i.e. development regulations). Subsequently on March 29, 2022, the City received the project application for the proposed project to allow construction of a mixed‐use development on a combined 5.1 gross‐acre development area, currently occupied by the Marina Shopping Center and the Mandarin Gourmet Restaurant. The preliminary application and formal application for submittal have been consistent in scope, pending minor design adjustments subject to comments from Santa Clara County Fire, Public Works, Sustainability, and the Environmental Services. 3 Removal and replacement standards explained in the staff report.   4 Under SB 330, a housing development project is generally subject only to the ordinances, policies, and standards adopted and in effect when the preliminary application was submitted. (Gov. Code, § 65589.5(o).)
Common Open Space per Heart of the City
Residential (150 s.f. per
unit) 30,900 s.f. 30,266 s.f.(Waiver Requested)
Commercial (Retail)
(2.5% of gross floor area
of buildings ≥ 20,000 sq.
ft., or restaurants ≥
10,000 sq. ft.)
1,040 s.f.   13,275 s.f.

Tree removal and
replacement3
Eighty‐three 24‐inch box and
Twenty 36‐inch box
replacements
One hundred and twenty 24‐
inch box and twenty 36‐inch
box replacements
Project Consistency with:

General Plan: Requested density bonus waivers for height (Figure LU‐2 Community Form Diagram)
Zoning: Requested density bonus, parking reduction, and waivers for height, setback, (Heart of the City Specific Plan,
Standard 1.01.030 ‐ Building Height, Setbacks and
Orientation) and residential common open space (Heart
of the City Specific Plan,  Standard 1.01.040 ‐ Site
Development and Parking)
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The primary components of the project are listed below and are consistent with the plans subject to staff’s recommendation. Referto Attachment M to view the development plans.  Construct three mixed‐use residential and commercial buildings:

No. Of Story Total condo units Ground floor retail
space
Building A 5 56 9347
Building B 4 86 22802
Building C 5 64 9440
 Construct a one‐level, below‐ground garage under each building with 419 parking spaces, totaling 607 for the entire site.
 30,266 square feet of Residential Common Open Space
 13,275 square feet of Commercial Common Open Space
 171 onsite and offsite tree replacements, for the 92 protected development trees proposed to be removed and/or relocated.
 A vesting tentative map that would merge the two properties into a single parcel.

The approximate square footage of the project is 87% residential.

Based on the State Density Bonus Law, the applicant is requesting a density bonus parking reduction, and density bonus waivers for height, side setback, and common open space. The following City permits would be required: Development, Architectural and Site Approval, Tree Removal, and a Vesting Tentative Map.

Prior Approval
On September 9, 2016, the City Council approved an application to demolish the existing shopping center (Marina Foods and Mandarin Gourmet) and construct a new mixed‐use development with 188 apartments, approximately 22,600 square feet of commercial space, and a 122‐room hotel within three buildings in a Planned General Commercial and Residential Zoning District. The following table indicates the primary differences between the prior approval and the currently proposed project.

Approved Proposed
Commercial   22,600 s.f. 41,589 s.f.

Hotel 122 Rooms  ‐
Residences 188 Apartments 206 Condominiums
BMR Units 16 Very Low‐Income Units5 36 units (18 Median‐Income Units6; 5 Very Low‐Income units serve households making < 50% of the Area Median Income (AMI) 6 Median Income units serve households making between 80 – 99.99% of AMI CC 12-06-2022
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18 Moderate‐Income7)
Building Height 45 feet 44 – 58.5 feet
Building Area 389,019 s.f. 570,572 s.f.

A Development Agreement (DA) was approved by the Council that included public benefits in exchange for a longer approval length for the project (5 years as opposed to 2 years). Public benefits (voluntary contributions beyond required fees) included agreements with the school districts, payments to a Transportation Management Association, complementary use of hotel facilities, and financial contributions towards various transportation improvements. The five‐year DA, and project approval, commenced on September 20, 2016, and expired on September 20, 2022. The applicant was unable to apply for Building Permits during the term of the DA.

Site and Location Description
The project sites known as
the Marina Plaza shopping
center and Madarin Gourmet
Restaurant  are located in the
Heart of the City Specific
Plan Special Area within the
North Crossroads Node of
the Crossroads subarea. The
shopping center and
restaurant combined are on
an approximately 5.1 gross‐
acre site bounded by Stevens
Creek Boulevard to the
south, De Anza Boulevard to
the east, Alves Drive to the
north, and Bandley Drive to
the west. (see Figure 1)
The surrounding uses are:
 North: Aloft Hotel, office space, and Apple Cafeteria  West: mix of commercial, restaurant, and office uses
 South: mix of office buildings, and three banks
7 Moderate Income units serve households making between 100 – 120% of AMI Figure 1 Project area
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 East (across De Anza Boulevard): Single Family Residential in a Planned Development, Saint Joseph of Cupertino Parish and other commercial uses The existing 44,000 square foot leaseable area includes a mix ofretail,restaurant, specialty food, and grocery tenants.

Planning Commission Recommendation
The Planning Commission conducted a special public hearing on November 10, 2022, to consider the proposed project. Five number of members of the public spoke with almost all in support of the proposed project. Members of the public raised the following topics:
 Possibility of lowering the height of each floor for the buildings to be conforming to the 45‐foot height limit.
 That the landscaping and tree selection for the development be California native.  Increase the commercial parking onsite.

The Planning Commission recommended (5‐0) that City Council adopt the first amendment to the mitigated negative declaration and adopt resolutions approving the Marina Development application with added conditions of approval to the Development Permit resolution as follows (see Attachment A):

1. 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 (WELO), CMC 14.15: Landscape Ordinance.8

2. Amend Planning Condition 21, Homeowners Association, memorializing the applicant’s proposal for the community room located on the ground floor of Building B to be open to 501(c)(3) organizations registered in the City of Cupertino.

3. That 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 units located within the “Implement Best Practices” area as identified in the Bay Area Air Quality Management District (BAAQMD) Planning Healthy Places Map.

While not a condition of approval, the Planning Commission requested that the applicant consider applying for a General Plan amendment to allow an added floor on Building B to allow for additional affordable units.  The applicant has not been responsive to this request from the Planning Commission.
8 This will be presented to City Council at the hearing for consideration.

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Analysis:

General Plan and Housing Element Compliance
The proposed use is consistent with the General Plan Land Use Designation of Commercial/Residential. The City’s General Plan uses a development allocation system when evaluating development projects and allows the City flexibility in developing project and site‐specific mitigation measures when reviewing projects. The Housing Element of the City of Cupertino’s General Plan: Community Vision 2015 – 2040 (General Plan) identifies The Marina Shopping Center as a Priority Housing Site. As a Priority Housing Site, it is allocated 200 units in the seventh Housing Element cycle, with the Marina Shopping Center site at a maximum density of 35 dwelling units per acre. The proposed number of units, with the state‐mandated density bonus, is consistent with what is allowed in the General Plan.

The General Plan’s Community Form Diagram establishes heights and setbacks for development on sites within each of the Special Areas. The proposed development in the North Crossroads Node within the Heart of the City Specific Plan Special Area has a height limit of 45 feet. The applicant has requested density bonus waivers of the height and side setback standards for Buildings A and C. The waiver requests will be discussed in further detail in the Density Bonus Section of this Staff Report.

Staff has evaluated the project’s consistency with the General Plan and concludes that based on the conformance with the General Plan Land Use designation for the site and the minimal environmental impacts of the project as analyzed in the Mitigated Negative Declaration Addendum (further discussed in detail in the Environmental Review section of this Staff Report), the proposed project supports several of the City’s other General Plan goals including:
 Policy LU‐1.3: Land Use in All City‐wide Mixed‐Use Districts  ‐ Encourage land uses that support the activity and character of mixed‐use districts and economic goals.  Policy LU‐5.2: Mixed‐Use Villages ‐ Where housing is allowed along major corridors or neighborhood commercial areas, development should promote mixed‐use villages with active ground floor uses and public space. The development should help create an inviting pedestrian environment and activity center that can serve adjoining neighborhoods and businesses.
 Strategy LU-15.1.1: Uses - Include in this subarea primary uses such as retail, office and commercial. Ground floor uses shall have active retail uses with storefronts. Commercial office and office uses may be allowed on upper levels. In the case of deep lots, buildings along the street should provide retail and buildings in the back may be developed with allowed uses.

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 HE‐1.3.4: Flexible Development Standards ‐ The City recognizes the need to encourage a range of housing options in the community. The City will continue to:
o Offer flexible residential development standards in planned residential zoning districts,such assmallerlotsizes, lot widths, floor area ratios and setbacks, particularly for higher density and attached housing developments.
o Consider granting reductions in off‐street parking on a case‐by‐case basis for senior housing.
 HE‐2.3.7: Density Bonus Ordinance ‐ The City will encourage use of density bonuses and incentives, as applicable, for housing developments which include one of the following:
o At least 5 percent of the housing units are restricted to very low‐income residents. o At least 10 percent of the housing units are restricted to lower income residents. o At least 10 percent of the housing units in a for‐sale common interest development are restricted to moderate income residents.
o The project donates at least one acre of land to the city or county large enough for 40 very low‐income units; the land has the appropriate general plan designation, zoning, permits, approvals, and access to public facilities needed for such housing; funding has been identified; and other requirements are met. A density bonus of up to 20 percent must be granted to projects that contain one of the following:
 The project is a senior citizen housing development (no affordable units required).  The project is a mobile home park age restricted to senior citizens (no affordable units required). For projects that contain on‐site affordable housing, developers may request one to three regulatory concessions, which must result in identifiable cost reductions and be needed to make the housing affordable.

Density Bonus Ordinance
Density Bonus
The project includes requests for a density bonus, parking reduction, and three waivers, for height, slope setback line, and dispersion of BMR units.

Section 19.56.070 of the City’s Density Bonus Ordinance (“Findingsʺ) requires that, before approving an application which includes a request for a density bonus, waiver or reduction in parking standards, the decision‐making body must determine that the proposal is consistent with State Density Bonus Law by making the following findings, as applicable:
 That the housing development is eligible for the density bonus requested and any incentives or concessions, waivers or reductions in parking standards requested.  That the development standard(s) for which the waiver(s) are requested would have the effect of physically precluding the construction of the housing CC 12-06-2022
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development with the density bonus and incentives or concessions permitted if a waiver is requested.

The City may nor deny a waiver of a development standard that would physically preclude the construction of the project as it is designed unless the waiver or reduction would have a specific, adverse impact upon health or safety, for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact or would have an adverse impact on any real property that is listed in the California Register of Historical Resources. Under State Density Bonus Law, the City may not deny a proposed project based on the theory that another project, with a similar number of units, might be designed differently and accommodated without waivers of development standards.

Based on the analysis above in in the subsequent sections, as well on the planning Commission recommendation, it is recommended that the City Council approve the density bonus.

1. Density Bonus BMR units breakdown
The project is eligible for density bonuses, a parking reduction, and waivers consistent with the City of Cupertino Municipal Code Chapter (CMC) 19.56 Density Bonus and State Density Bonus Law.  Table 1 below provides a breakdown of the housing affordability types and percentage of development:

Table 1: Below Market Rate Units as a Percentage of the Development The proposed project is providing 36 moderate and median‐income units, or 20% of the development, which entitles the project to a Density Bonus (15%) under State Law.

Therefore, 27 market‐rate units are allowed in addition to the base residential yield of 179 units, for a total of 206 units.

Please refer to Attachment J for a full description of the Below Market Rate programming of the Marina development. A condition of approval would require that, prior to occupancy, the applicant shall record a regulatory agreement with the City requiring the 9 Percentages are based on the base density of 35 DU/acre or 179 units, as required by the Density Bonus Law and are consistent with the 20% requirement in the City’s BMR Manual. 10 HCD sets the maximum moderate‐income limit to equal 120 percent of the county’s AMI, adjusted for family size.

Income Level Below Market Rate Units % of Development Units9 Moderate Income10 18 units (50% of affordable units)   10% Median Income 18 units (50% of affordable units) 10%
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36 BMR units to be for sale to median income households and remain affordable for 99 years.

2. Density Bonus Parking Reduction
While the Municipal Code requires the project to provide 2 parking spaces per unit for a total of 412 spaces, the proposed project is eligible for a State density bonus parking reduction. In this case, while the applicant is allowed to provide only 305 residential parking spaces under the provisions of state law, the project includes 338 residential spaces. (Please see detailed discussion under Parking Analysis.)

3. Density Bonus Waivers Requested
As a density bonus project, the applicant may submit to the City a proposal for an unlimited number of waivers, or reduction of development standards, that would have the effect of physically precluding the construction of the proposed project (Government Code Section 65915(e)). The applicant has requested three (3) waivers as follows:

1. Height: The General Plan’s Community Form Diagram requires that development on these sites be limited to 45 feet. The applicant is requesting waivers to allow Building A and Building C to exceed this height (see Figure 2 on next page) as follows:
o Building A would be 58 feet 6‐inches at the roofline
o Building C would be 55 feet at the roofline
Building A Building C
Figure 2: Illustration of height waiver for Buildings A & C. Green hatched areas are the portions of the building over 45 feet.

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2. Side setback: The Heart of the City Specific Plan requires a minimum side setback of one‐half (1/2) the height of the building (or ten (10) feet, whichever is greater).

The applicant is requesting that this standard be waived as follows:
o Building A would have a side setback of 10 feet where 28 feet 6‐inches is required.
o Building C would have a side setback of 22 feet 6‐inches where 27 feet 6‐inches is required.

3. Common Open Space: The Heart of the City Specific Plan requires residential common open space at 150 s.f. per unit. For this project, this translates to 30,900 sq.ft. of residential common open space. The applicant is requesting that this standard be waived and a reduced residential common open space of 30,266 s.f. be included in the project.

As part of the application, the
justification of the waivers (height,
side setback, and common open
space) was provided by the
applicant in two letters, both
submitted by Erik Ramakrishnan,
Esq. of Berliner Cohen, LLP dated
March 23, 2022, and July 18, 2022
(Attachment J). These letters state
that the waivers are necessary for
several reasons:
 Height Waiver:   Exhibits
indicate that 30 units would be
lost if the 45‐foot height limit
were enforced, which
includes the entire fourth floors of Buildings A and C (see Figure 2).  Side Setback Waiver: Exhibits indicate that if the Side Setback Requirement were enforced, the Project would lose approximately eight units per floor in Buildings A and C, for an overall combined total of at least 30 units (see Figure 3).  Common Open Space: The justification letters state that the Heart of the City Specific Plan construes the term “common open space” to exclude outdoor areas that provide space for ingress and egress.  Under this interpretation, as currently designed the project does not provide adequate common open space and has a shortfall of approximately 634 s.f. This shortfall in open space would require the Figure 3: Side setback waiver for buildings A & C. Red areas indicate portions of buildings within the side setback area.

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applicant to remove a total of five (5) units (150 s.f. * 5 = 750 s.f.) from the project (Bldg. A– 3 units, Bldg. B ‐ 2 units, and Bldg. C ‐ 1 unit) To approve the waivers, the City must find that the development standards for which the waivers are requested would have the effect of physically precluding the construction of the proposed housing development with the density permitted by state density bonus law. Under State Density Bonus Law, the City may not deny a proposed project based on the theory that another project, with a similar number of units, might be designed differently and accommodated without waivers of development standards.

In reviewing the justification letters and exhibits, it appears that imposing the City’s height, side setback, and common open space requirements would physically preclude development of Buildings A, C, and to a certain extent, Building B as proposed.

Site design analysis and Architectural and Site Approval The proposed development sits between Stevens Creek Boulevard, Alves Drive, Bandley Drive, and North De Anza Boulevard. It has frontages on all four rights‐of‐way, with Stevens Creek Boulevard’s limited to solely a driveway entrance. Surface parking is mostly hidden from pedestrian and vehicular view as most of the parking is subterranean and/or podium.

The common open space areas have been designed to foster gathering at various points in the development, particularly a central plaza that is at the intersection of the three internal streets. Active uses (mostly retail) are on the bottom floor along the internal network of streets, as well as Alves and Bandley Drives. major streets.

The proposed design quality of the buildings contains features consistent with a modern style throughout the development. The quality of materials as demonstrated in the project application is superior, which include a mix of durable materials including, but not limited to aluminum paneling, redwood fiber cement siding, stone tile, and smooth exposed concrete. Please refer to sheets A5.3A – A5.3C in Attachment M for the material boards.

Compliance with BMR Unit Comparability & Dispersion Requirements The BMR Manual requires that 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.  Size should be generally representative of the unit sizes within the market‐rate portion of residential project.
 Interior features and finishes in affordable units shall be durable, of good quality and consistent with contemporary standards for new housing.

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Table 2, below, (as well as sheets A3.2 – A3.5, Attachment M, Project Plan Set) shows the proposed unit mix within the three mixed use buildings by income level, type, location, and size.

Table 2: Unit Comparability Between Buildings A, B, & C Average Bedroom Count Average Gross Area
Overall Market Rate Units 2.4 bedrooms 1,304 sq.ft.

Moderate Income BMR Units   2.4 bedrooms 1,307 sq.ft.

Median Income BMR Units 2.4 bedrooms 1,301 sq.ft.

As is seen in Table 2, the BMR units on average are the same size and bedroom count as the market‐rate units. There is no indication on the plans that the exterior finishes of the BMR units will be any different from the market rate units. As such, it is expected that they will be of the same quality; however, as allowed in the BMR manual, the affordable units may have different interior finishes.

Tree Removal and Replacement
The development proposes to remove and replace 92 protected development trees. Both the applicant’s and the City’s consultant arborists evaluated the existing 100 trees on the site. Out of the 100 trees surveyed, 92 trees were identified as being directly impacted by development and would require removal. All those trees that are impacted are non‐ native species, particularly the abundant Southern Magnolias.

Table 3 Tree replacement
Protected
Trees
Removed
Sizes Required Replacements
24‐inch
box
36‐inch box or
more
62 Up to 12 inches* One 24ʺ box tree    63
30 Over 12 inches and
up to 36 inches
Two 24ʺ  box trees or
One 36ʺ box tree
57 20
Totals 122 (24‐inch box) 120 20
The applicant proposes to replace the removed trees with 188 trees (140 on‐site and 48 off site).  In accordance with CMC Chapter 14.18: Protected Trees, the applicant is providing 140 on‐site replacements when only 122 are required. Chinese Pistache and Crepe Myrtle are the wo most common replacement species proposed. The planning Commission had recommended that the applicant proposed to City Council a planting palette that would be more in‐line with a native species.

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For the offsite replacements, the street trees palette includes the following:
 Twenty‐four, 24‐inch box Engelmann Oak along Stevens Creek and De Anza Blvd.  Sixteen, 24‐inch box Silver Linden along Alves Drive.  Eight, 24‐inch box Brisbane Box trees along Bandley Drive.

Parking Analysis
The City’s Density Bonus Ordinance, in compliance with State Law, allows density bonus projects the option to use alternate parking standards for all residential units (market‐ rate and affordable) based on bedroom count. Since at least 10% (in this case 20%) of the total base residential units of the housing development would be sold to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, State Law allows a reduction in parking standards provided that all units in the development are offered to the public for purchase.  See Table 3 (on the next page) for a breakdown of the parking within the development.

Table 4: Parking Requirements
Building
Use
Parking Standards per Density
Bonus Law (65915 (p))11
# of Units
or S.f.

Required
Spaces
Provided
Spaces
Residential
Condos
One‐bedroom units = 1 onsite
space/unit   9 9
Two‐ and three‐bedroom units = 338

1.5 onsite spaces/unit 197 296
4+ bedroom units = 2.5 spaces/unit 0 0
Sub‐total 206 305 338
Retail   1 space per 250 s.f.   41,589 s.f.   166 269
Total   471 607
Because the project site meets the criteria established by the Density Bonus Law, the project is required to provide only 471 spaces. However, the applicant proposes 607 parking spaces, which adequately meet the parking requirements of the proposed project.

Vesting Tentative Map
The project is currently two separate parcels. The application for the Vesting Tentative Map (VTM) merges two separate lots to create one 5.1‐acre parcel. The consolidated parcel will include a condominium map for the 206 condominiums. A condition of 11 Government Code 65915(p) has been updated since the City last updated its Municipal Code as it relates to Density Bonus Law. Therefore, while the City’s Municipal Code indicates that 2‐ and 3‐ bedroom units must provide 2 spaces per unit, state law only requires the provision of up to 1.5 spaces per unit. The City must adhere to the requirements of state law.

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approval has been added to the VTM that would require dedication of reciprocal easements ensuring cross access between the parcels, for emergency vehicles and public.

Housing Accountability Act
The Housing Accountability Act (HAA) (Gov. Code, § 65589.5) limits the ability of a city to deny or impose certain conditions on a housing development project when the project complies with applicable, objective general plan, zoning, and subdivision standards and criteria. This project is a “housing development project” under the HAA because it is a mixed‐use development consisting of residential and nonresidential uses with at least two‐thirds of the square footage designated for residential use.

When a project complies with objective standards, the HAA allows a city to disapprove the project, impose a condition that the project be developed at a lower density, or impose a condition the impacts the feasibility of the project only if the city finds both of the following, supported by a preponderance of the evidence in the record:

1. The project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density; and

2. No feasible method to satisfactorily mitigate or avoid the adverse impact exists.

The project meets all applicable objective zoning, General Plan, and subdivision standards.   Based on the record, including the findings in the IS/MND and IS/MND Addendum, staff does not believe the above findings for denial of the proposed project can be made.

Signage
Signage details are not included in this permit application. Staff will review the signage proposal with the property owner at the time the applicant applies for a sign permit through the Building Division.

Other Department/Agency Review
The City’s Building Division, Public Works Department, Environmental Services Division, Sheriff’s Department, Cupertino Sanitary District, and the Santa Clara County Fire Department have reviewed and conditioned the project.

Environmental Review
On September 6, 2016, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration (2016 MND), State Clearinghouse (SCH) Number 2016052006, and approved the Marina Plaza Project (2016 Project). As described earlier in this staff report, CC 12-06-2022
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the project has been modified since the original 2016 approval (i.e., more residential units, no hotel, more commercial, etc.).

The City’s consultant conducted a CEQA analysis of changes to the project to determine the appropriate level of subsequent environmental review. Under CEQA Guidelines section 15164, an addendum to an MND should be prepared where there are (1) no substantial changes to the project requiring major revisions to the MND because of new or substantially increased significant environmental effects of the project; (2) no substantial changes in circumstances requiring major revisions to the MND because of new or substantially increased significant environmental effects of the project; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the MND; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the MND would substantially reduce significant effects.

The City’s consultant’s analysis determined that proposed changes to the project meet the criteria for an addendum. The City’s consultant concluded that the proposed project is within the same project site parameter and would use the same egress/ingress access points. Further, while the updated project would result in 18 additional residential units and 50 additional residents, and an increase of 27 employees, the project would not include the proposed hotel. The addendum reviews each topic in the CEQA Environmental Checklist and concludes that neither the modifications to the project nor new circumstance or information will result in an environmental impact that is new or more severe than the impacts studied in the Initial Study and MND. Please refer to Attachment K, Marina Plaza Project Initial Study and Mitigated Negative Declaration Addendum No. 1.

Based on the information provided in this Addendum, construction and operation of the modified project would not result in any new impacts or increase the severity of previously identified significant impacts analyzed in the Adopted MND.

Public Outreach and Noticing
The following table is a summary of the noticing done for this project:

Notice of Public Hearing, Site Notice & Legal Ad Agenda  Site Signage (10 days prior to the hearing)
 Citywide postcard mailed to each resident (10 days prior to the hearing)
 Posted on the City’s
official notice bulletin
board (one week prior to
the hearing)
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 Legal ad placed in newspaper (at least 10 days prior to the hearing)
 Public hearing notices were mailed to property owners within 300 feet of the project site (10 days prior to the hearing)
 Posted on the City of
Cupertino’s website
(one week prior to the
hearing)
The applicant has completed substantial community outreach to residents, organizations, property owners, and businesses. Community outreach summary includes the following in‐person meetings:
 January 7, 2022 – meeting with the sister City delegations. Eight guests attended.  April 2 & 13, 2022 – residential and commercial/office property owners within 2,000 feet of the site invited to the Aloft Hotel. 18 members of the public attended.  October 5 & 8, 2022 – residential and commercial property owners within 2,000 feet of the site invited to the Aloft Hotel. 23 members of the public attended.

Approximately five comment cards were submitted to the applicant. Feedback was generally supportive and complimentary of the project. Refer to Attachment L for a detailed summary of the outreach efforts.

Public Comment Received
Members of the public have commented to staff at the time of this staff report being published. Please refer to Attachment N.

Fiscal Impacts
The project will most likely generate a renewed source of property tax increases as well as required mitigation fees for park development and traffic impact fees.

Sustainability Impacts
As an infill redevelopment priority housing development in a designated Priority Development Area and Transportation Planning Area, the proposed project would be consistent with the overall intent of the City’s Climate Action Plan (CAP) to support reductions in GHG emissions, and the proposed project would not conflict any goals or measures to reduce GHG emissions in the CAP and impacts would be less than significant as analyzed in the Addendum.

Conclusion
Staff recommends approval of the project because the project and conditions of approval addressed concerns related to the proposed development and all the findings for approval of the proposed project, consistent with Chapters 14.18, 18.28, 19.56, 19.156, and 19.168 of CC 12-06-2022
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the Cupertino Municipal Code, could be made. Concerning the development’s height, side setback, and common open space waivers, evidence in the record demonstrated that the project met the standards for granting the waivers under the State Density Bonus Law.

Next Steps
The City Council’s decision will be final unless reconsidered within 10 days of the decision. The applicant may apply for building permits at that time.

Prepared by:  Gian Paolo Martire, Senior Planner
Reviewed by: Piu Ghosh, Planning Manager
Luke Connolly, Acting Director of Community Development Approved for Submission by: Pamela Wu, City Manager
ATTACHMENTS:

A– Draft Resolution for DP‐2022‐001
B – Draft Resolution for ASA‐2022‐002
C – Draft Resolution for TM‐2022‐003
D – Draft Resolution for TR‐2022‐026
E – Planning Commission Resolution 6964
F – Planning Commission Resolution 6965
G – Planning Commission Resolution 6966
H – Planning Commission Resolution 6967
I ‐ Project Description
J– Letter from Erik Ramakrishnan, Esq. of Berliner Cohen, LLP dated March 23, 2022 and July 18, 2022
K – Marina Plaza Project Initial Study and Mitigated Negative Declaration Addendum No. 1
L – Public Outreach Summary, dated October 10, 2022
M – Project Plans
N– Public Comment
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RESOLUTION NO. _________

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 MIXED‐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:  PROJECT 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 CC 12-06-2022
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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 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 proofrequired 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 compatible with and respectful of adjoining land uses. Additionally, all mitigation measures that are within the responsibility and jurisdiction of the City have been adopted and will be made conditions of approval to mitigate potential impacts to a less than significant level. Therefore, the project will not be detrimental or injurious to properties or improvements CC 12-06-2022
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in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience.

2. The proposed development will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of the City’s zoning ordinances.

The General Plan land use designation for the property is Commercial/Office/Residential. The proposed use is consistent with the General Plan. The subject property is zoned as Planned General Commercial/Residential with a further designation as a Priority Housing Element Site. The proposed development has met 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 approximately 20% of its base density as Below Market Rate Housing. As 20% of the units on‐site will be limited to median/moderate Income residents, it is eligible for a 15% density bonus. 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 not 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 bonus 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.

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The density bonus is not based on a condominium conversion, so the finding is not applicable.
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‐use development, the density bonus is not based on the mixed‐ 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 development standards for the side setback, height, and common open space would physically preclude the development. These development standard limitations could affect the project by a considerable loss of units, up to 30 units, which many may 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 would be sold to persons and families of moderate income, and all units in the development are offered to the public for purchase, as defined in Section 50093 of the Health and Safety Code, State Law allows a reduction in parking standards, which this project has met.

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, ʺspecific, adverse impactʺ 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
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As evidenced by the findings and conclusions of the MND Addendum, there exists no significant, quantifiable, direct, and unavoidable impacts, 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. c) That the incentive or concession, or waiver is contrary to state or federal law.

The requested waivers are not contrary to state or federal 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 PAGE 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.

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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 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 ASA‐ 2022‐002 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 BMR 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 18 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.

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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.

10. CONSULTATION WITH OTHER 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 forthe 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 map 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 units; 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.

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14. BMR UNIT TERMS OF AFFORDABILITY
Prior to occupancy, the 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 confirm 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 Fine 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 plan(s), 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, Sundays, 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 p.m. 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 CC 12-06-2022
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obtain LEED 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:
o 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 amenity 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 (WELO), CMC 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 units 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 I Prior to the issuance of building permits, the project applicant shall submit an acoustic study to the satisfaction of the Cityʹs 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 specific 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 CC 12-06-2022
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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 ʺwindows closed” condition will be required with minimum supply of fresh air per UBC requirements.

27. 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 restaurant(s).  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 priorto 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) 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 CC 12-06-2022
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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 19.102.040 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 Community 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 CC 12-06-2022
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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.

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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 CC 12-06-2022
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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.

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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 whichever 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.

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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 overthe 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 CC 12-06-2022
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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 the 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.

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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.cupertino.org/our‐city/departments/environment‐ sustainability/green‐development, 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.  The developer must receive written approval from both the CC 12-06-2022
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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. BMP 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 shall 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 CC 12-06-2022
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Control Devices (MUTCD) 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 Backflow 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 VI:  CONDITIONS ADMINISTERED BY THE CUPERTINO SANITARY

DISTRICT

1. CUPERTINO SANITARY DISTRICT
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.

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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 around 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 507.5.1]

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.

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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 building 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 portions 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 503.1.1].

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 applicant(s).  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 forfire 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 CC 12-06-2022
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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 and 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.
c. Proximity to building: At least 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 CC 12-06-2022
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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 Details 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 townhouses/rowhouses and each emergency egress window.

14. 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 COMMUNICATION 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 CC 12-06-2022
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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 may be 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 CC 12-06-2022
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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 Chief due to practical difficulties). FDCʹs 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. FDCʹs 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:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________

Kirsten Squarcia, City Clerk
________________________
Date
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RESOLUTION NO. ____

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING AN ARCHITECTURAL AND SITE APPROVAL PERMIT TO
DEMOLISH APPROXIMATELY 44,000 SQ. FT. OF EXISTING COMMERCIAL SPACE AND THE CONSTRUCTION OF THREE MIXED‐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:  PROJECT 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 CC 12-06-2022
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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 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 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 proofrequired 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 orinjurious 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.

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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‐density 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 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 CC 12-06-2022
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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 becausethe project has been designed to plant furtherstreet tress along thefrontage 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.

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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 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 priorto 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 CC 12-06-2022
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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 waterrequirements forthe 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 PROJECT 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.

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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 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 underroot zones, unless using buffers approved by the Project Arborist.

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 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 CC 12-06-2022
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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.

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 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:

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Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________

Kirsten Squarcia, City Clerk
________________________
Date
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RESOLUTION NO. ________

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)
SECTION I:  PROJECT 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
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 CC 12-06-2022
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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 proofrequired 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 units 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 Planʹs design requirements, since the project qualifies for waivers for height, side setback, and common open space.
c. That the site is physically suitable for the type of development contemplated under the approved subdivision.

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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.

The proposed subdivision design and improvements are not likely to causeserious public health problems. 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, 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
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 CC 12-06-2022
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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 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 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 Community Development Department.

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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 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.

8. 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 CC 12-06-2022
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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 this Resolution conform to generally accepted engineering practices. ___________________________
Chad Mosley, 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 6th  day of December, 2022, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:

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________________________
Kirsten Squarcia, City Clerk
________________________
Date
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RESOLUTION NO. ____

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:  PROJECT 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:

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 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 CC 12-06-2022
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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 proofrequired 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:

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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 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 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 CC 12-06-2022
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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.

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 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 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 CC 12-06-2022
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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.

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 6th day of December, 2022, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

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SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________

Kirsten Squarcia, City Clerk
________________________
Date
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CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California  95014
RESOLUTION NO. 6964

OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO

RECOMMENDING ADOPTION OF AN ADDENDUM TO A PREVIOUSLY ADOPTED

MITIGATED NEGATIVE DECLARATION AND APPROVAL OF
A DEVELOPMENT PERMIT TO DEMOLISH APPROXIMATELY 44,000 SQ. FT. OF EXISTING COMMERCIAL SPACE AND THE CONSTRUCTION OF THREE MIXED‐ 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)
The Planning Commission recommends that the City Council adopt the Addendum to the Negative Declaration and approve the Development Permit, in substantially similar form to the Draft Resolution attached hereto as Exhibit DP, with the following modifications:

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 (WELO), CMC 14.15: Landscape Ordinance.

Amend Planning Condition 21 to add the following bullet:

HOMEOWNERS ASSOCIATION
 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.

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 units located within the “Implement Best Practices” area as identified in the Bay Area Air Quality Management District (BAAQMD) Planning Healthy Places CC 12-06-2022
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EXHIBIT DP
Map.

PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City of Cupertino the 10th day of November 2022, by the following roll call vote:

AYES:   COMMISSIONERS: Kapil, Saxena, Wang, Madhdhipatla, and Scharf NOES: COMMISSIONERS:

ABSTAIN: COMMISSIONERS:

ABSENT: COMMISSIONERS:

ATTEST:           APPROVED:
/s/ Piu Ghosh          /s/Stephen Scharf
Piu Ghosh           Stephen Scharf
Planning Manager         Chair, Planning Commission
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EXHIBIT DP
RESOLUTION NO. _________

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 MIXED‐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:  PROJECT 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 CC 12-06-2022
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EXHIBIT DP
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 proofrequired 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 compatible with and respectful of adjoining land uses. Additionally, all mitigation measures that are within the responsibility and jurisdiction of the City have been adopted and will be made conditions of approval to mitigate potential impacts to a less than significant level. Therefore, the project will not be detrimental or injurious to properties or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience.

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EXHIBIT DP

2. The proposed development will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of the City’s zoning ordinances.

The General Plan land use designation for the property is Commercial/Office/Residential. The proposed use is consistent with the General Plan. The subject property is zoned as Planned General Commercial/Residential with a further designation as a Priority Housing Element Site. The proposed development has met 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 approximately 20% of its base density as Below Market Rate Housing. As 20% of the units on‐site will be limited to median/moderate Income residents, it is eligible for a 15% density bonus. 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 not 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 bonus 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 not based on a condominium conversion, so the finding is not applicable.

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EXHIBIT DP
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‐use development, the density bonus is not based on the mixed‐ 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 development standards for the side setback, height, and common open space would physically preclude the development. These development standard limitations could affect the project by a considerable loss of units, up to 30 units, which many may 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 would be sold to persons and families of moderate income, and all units in the development are offered to the public for purchase, as defined in Section 50093 of the Health and Safety Code, State Law allows a reduction in parking standards, which this project has met.

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, ʺspecific, adverse impactʺ 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, quantifiable, direct, and unavoidable impacts, based on objective, identified, CC 12-06-2022
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EXHIBIT DP
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. c) That the incentive or concession, or waiver is contrary to state or federal law.

The requested waivers are not contrary to state or federal 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 PAGE 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 CC 12-06-2022
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EXHIBIT DP
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 ASA‐ 2022‐002 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 BMR 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 18 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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EXHIBIT DP

10. CONSULTATION WITH OTHER 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 forthe 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 map 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 units; 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.

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14. BMR UNIT TERMS OF AFFORDABILITY
Prior to occupancy, the 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 confirm 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 Fine 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 plan(s), 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, Sundays, 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 p.m. 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 CC 12-06-2022
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obtain LEED 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:
o 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 amenity 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.

22. 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 CC 12-06-2022
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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.

23. 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.

24. ACOUSTIC STUDY AND REDUCTION OF INTERIOR NOISE LEVELS I Prior to the issuance of building permits, the project applicant shall submit an acoustic study to the satisfaction of the Cityʹs 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 specific 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 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 ʺwindows closed” condition will be required with minimum supply of fresh air per UBC requirements.

25. 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 CC 12-06-2022
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reviewed and approved by the Director of Community Development prior to issuance of building permits.

26. 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 restaurant(s).  Detailed plans shall be reviewed and approved by the Director of Community Development prior to issuance of building permits.

27. 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.

28. SITE IMPROVEMENTS
All proposed site improvements shall be completed priorto final occupancy of any structures approved in conjunction with the project.

29. 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.

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.

30. 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 19.102.040 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 CC 12-06-2022
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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.

31. 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 Community 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.

32. 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 interest in one or more of the affected parcels is initially sold or transferred to another party.

33. 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, CC 12-06-2022
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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.

34. 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
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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 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
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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.

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 whichever comes first.

1. 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.

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10. 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.

11. 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.

12. 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.

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.

13. 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 overthe 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.

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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.

14. 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 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)
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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.

15. 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 the final map as building(s) cannot straddle between lot lines.

16. 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).

17. 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.

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.

18. 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.

19. TRASH, RECYCLING AND COMPOST ENCLOSURES & OPERATIONS Trash enclosure plans must be designed in accordance with the City’s “Public Works Guidelines” posted at www.cupertino.org/our‐city/departments/environment‐ sustainability/green‐development, 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)
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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.

20. 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.

21. 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.

22. TRANSFORMERS  & CABINETS
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.

23. 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.

24. BEST MANAGEMENT PRACTICES
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Utilize Best Management Practices (BMPs), as required by the State Water Resources Control Board, for construction activity, which disturbs soil. BMP plans shall be included in grading and street improvement plans.

25. 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.

26. 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.

27. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the timetable for all grading/erosion control work in conjunction with this project.

28. 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 Control Devices (MUTCD) standards for all signage and striping work throughout the City.

29. STREET TREES

30. 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.

31. 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 Backflow Preventers should be located on CC 12-06-2022
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private property adjacent to the public right of way, and fire department connections must be located within 100’ of a Fire Hydrant).

32. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire Department as needed.

33. 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.

34. 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 VI:  CONDITIONS ADMINISTERED BY THE CUPERTINO SANITARY

DISTRICT

1. CUPERTINO SANITARY DISTRICT
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.

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, CC 12-06-2022
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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 around 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 507.5.1]

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.

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 building 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 portions 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 503.1.1].

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 CC 12-06-2022
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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 applicant(s).  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 forfire 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 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 and 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.

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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.
c. Proximity to building: At least 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 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 Details 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 CC 12-06-2022
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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 townhouses/rowhouses and each emergency egress window.

14. 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 COMMUNICATION 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 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.

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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 may be 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 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 Chief due to practical difficulties). FDCʹs 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 CC 12-06-2022
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inlets without interference. FDCʹs 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:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________

Kirsten Squarcia, City Clerk
________________________
Date
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CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California  95014
RESOLUTION NO. 6965

OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO

RECOMMENDING APPROVAL OF AN ARCHITECTURAL AND SITE
APPROVAL PERMIT TO DEMOLISH APPROXIMATELY 44,000 SQ. FT. OF

EXISTING COMMERCIAL SPACE AND THE CONSTRUCTION OF THREE MIXED‐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) The Planning Commission recommends that the City Council approve the Architectural and Site Approval Permit, in substantially similar form to the Draft Resolution attached hereto as Exhibit ASA.

PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City of Cupertino the 10th day of November 2022, by the following roll call vote:

AYES:   COMMISSIONERS: Kapil, Saxena, Wang, Madhdhipatla, and Scharf NOES: COMMISSIONERS:

ABSTAIN: COMMISSIONERS:

ABSENT: COMMISSIONERS:

ATTEST: APPROVED:
/s/ Piu Ghosh /s/Stephen Scharf
Piu Ghosh Stephen Scharf
Planning Manager Chair, Planning Commission
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RESOLUTION NO. ____

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING AN ARCHITECTURAL AND SITE APPROVAL PERMIT TO
DEMOLISH APPROXIMATELY 44,000 SQ. FT. OF EXISTING COMMERCIAL SPACE AND THE CONSTRUCTION OF THREE MIXED‐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:  PROJECT 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 CC 12-06-2022
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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 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 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 proofrequired 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 orinjurious 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.

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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‐density 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 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 CC 12-06-2022
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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 becausethe project has been designed to plant furtherstreet tress along thefrontage 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.

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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 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 priorto 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 CC 12-06-2022
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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 waterrequirements forthe 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 PROJECT 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.

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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 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 underroot zones, unless using buffers approved by the Project Arborist.

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 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 CC 12-06-2022
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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.

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 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:

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EXHIBIT ASA
Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________

Kirsten Squarcia, City Clerk
________________________
Date
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CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California  95014
RESOLUTION NO. 6966

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

CUPERTINO RECOMMENDING APPROVAL OF 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) The Planning Commission recommends that the City Council approve the Vesting Tentative Map, in substantially similar form to the Draft Resolution attached hereto as Exhibit TM:

PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City of Cupertino the 10th day of November 2022, by the following roll call vote:

AYES:   COMMISSIONERS: Kapil, Saxena, Wang, Madhdhipatla, and Scharf NOES: COMMISSIONERS:

ABSTAIN: COMMISSIONERS:

ABSENT: COMMISSIONERS:

ATTEST: APPROVED:
/s/ Piu Ghosh /s/Stephen Scharf
Piu Ghosh Stephen Scharf
Planning Manager Chair, Planning Commission
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EXHIBIT TM
RESOLUTION NO. ________

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)
SECTION I:  PROJECT 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
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 CC 12-06-2022
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EXHIBIT TM
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 proofrequired 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 units 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 Planʹs design requirements, since the project qualifies for waivers for height, side setback, and common open space.

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EXHIBIT TM
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.

The proposed subdivision design and improvements are not likely to causeserious public health problems. 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, 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
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EXHIBIT TM
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 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 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 CC 12-06-2022
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EXHIBIT TM
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 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.

8. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS CC 12-06-2022
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EXHIBIT TM
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.

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 this Resolution conform to generally accepted engineering practices. ___________________________
Chad Mosley, 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 6th  day of December, 2022, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
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EXHIBIT TM
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
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CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California  95014
RESOLUTION NO. 6967

OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO

RECOMMENDING APPROVAL OF 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)
The Planning Commission recommends that the City Council approve the Tree Removal Permit, in substantially similar form to the Draft Resolution attached hereto as Exhibit TR.

PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City of Cupertino the 10th day of November 2022, by the following roll call vote:

AYES:   COMMISSIONERS: Kapil, Saxena, Wang, Madhdhipatla, and Scharf NOES: COMMISSIONERS:

ABSTAIN: COMMISSIONERS:

ABSENT: COMMISSIONERS:

ATTEST: APPROVED:
/s/ Piu Ghosh /s/Stephen Scharf
Piu Ghosh Stephen Scharf
Planning Manager Chair, Planning Commission
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EXHIBIT TR
RESOLUTION NO. ____

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:  PROJECT 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:

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 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 CC 12-06-2022
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EXHIBIT TR
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 proofrequired 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:

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EXHIBIT TR
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 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 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 CC 12-06-2022
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EXHIBIT TR
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.

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EXHIBIT TR
 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 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 CC 12-06-2022
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EXHIBIT TR
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.

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 6th day of December, 2022, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

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EXHIBIT TR
SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________

Kirsten Squarcia, City Clerk
________________________
Date
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General Planning Application
City of Cupertino
Project Site Address: 10145 N DeAnza Blvd., &
10118-10122 Bandley Drive, Cupertino CA 95014
Project Name: Marina Plaza
Item 10. Project Description, Purposes and Objectives of the Project Revised 7/21/22, Revised 9/19/22
Summary
The project proposes to replace the existing Marina Plaza Retail Shopping Center (approx. 49,140 square feet of single level retail space) with a Mixed Use Residential/Retail development containing 206 for-sale residential condominium, and retail/restaurant space of approximately 41,589 square feet. The overall site is approximately 5.1 acres. The project is located at the northwest corner of the intersection of Stevens Creek Boulevard and North DeAnza Boulevard.

The project is also bordered by Bandley Drive on the west and Alves Drive on the north.

Purposes and Objectives of the Project

1. Contributing to the City’s policies and objectives for the Heart of the City Specific Plan Area by constructing an attractive, strategically urban mixed-use development.

2. Retaining an equivalent amount of commercial space on site while also maximizing use of the site to also help the City meet its housing production goals.

3. Contributing to the City’s affordable housing stock by providing 36 Below Market Rate Units.

4. Providing an attractive residential environment which includes ample green-space (plazas, landscape walks) and interesting art features that is unique in the area and focused around community involvement.

5. Support growth strategies that reduce the overall amount of vehicle miles traveled and greenhouse gas emissions by placing higher density residential in proximity to local retail, and employment centers offering the local senior citizen population (empty nest) an alternative to owning large single-family homes while being able to remain living in the community.

6. Provide a development that increases the focus on a pedestrian orientation which will enliven the streetscape and promote alternate mode travel.

7. Construct a high-quality, high-density development that is marketable and produces a reasonable return on investment for the Project Sponsor and its investors and is able to attract investment capital and construction financing.

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General Planning Application - City of Cupertino
Project Site Address: 10145 N DeAnza Blvd., &
10118-10122 Bandley Drive, Cupertino CA 95014
Item 10. Project Description, Purposes and Objectives of the Project Page | 2

8. Provide local serving commercial/retail/restaurant opportunities that reflect the cultural identity of the community.

Existing Conditions
The proposed project would be located on a 5.1-acre site at 10145 De Anza Boulevard and 10118 to 10122 Bandley Drive. The project site is assigned Assessor’s Parcel Numbers (APN) 326-34-066 (10118 to 10122 Bandley Drive), which is 4.3 acres in size; and 326-34-043 (10145 De Anza Boulevard,) which is 0.8 acres in size. The project site is currently developed with two single-story commercial buildings and associated surface parking.

The project site is within the Commercial/Office/Retail (C/O/R) General Plan land use designation. It is located in the Heart of the City Specific Plan and is zoned Planned Development with General Commercial and Residential (PDCG, Res]). The C/O/R land use designation includes mixed-use areas that are primarily made up of commercial and office uses.

The PDCG, Res) zone includes a mix of General Commercial and Residential uses. The residential uses within the PDCG, Res) zone are intended to support commercial development.

Surrounding Uses
The overall subject property is located in a generally mixed commercial and residential areas of eastern Cupertino and is bordered by the frontage street Alves Drive to the north with an Aloft Hotel (10165 N DeAnza Blvd.) directly beyond; to the east by North DeAnza Boulevard with residential properties beyond to the northeast having 10141 and 10151 Parlett Place addresses, a church known as St. Josephs of Cupertino (10110, 10120 and 10130 N DeAnza Blvd) to the east and an office building (10020 North DeAnza Blvd.) to the southeast; an office building and parking (10001-10101 North DeAnza Blvd. ) to the south and a restaurant (10118 North DeAnza Blvd.) and grocery store (10123 North DeAnza Blvd.) to the west.

Project Description
The proposed project would involve demolishing two existing commercial buildings totaling approximately 49,140 square feet and redeveloping the project site with three mixed-use buildings, with 41,589 square-foot of commercial (condominium) uses and 206 condominium residential units.

The redevelopment envisions three (3) buildings spread throughout the project with pedestrian walkways and interesting landscape areas connecting the overall development.

Auto/Pedestrian entrances to the project will be on Stevens Creek, Bandley Drive and Alves streets. The Main Street promenade entrance from Alves will be orientated towards a pedestrian/bike friendly design with numerous crosswalks and raised pavement areas, much like what is seen in Santana Row today.

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General Planning Application - City of Cupertino
Project Site Address: 10145 N DeAnza Blvd., &
10118-10122 Bandley Drive, Cupertino CA 95014
Item 10. Project Description, Purposes and Objectives of the Project Page | 3
The retail and restaurant spaces will be on the street level ground floor, with adjacent street level parking. Natural gas usage for the restaurant space would be limited to stoves/cooktop burners used traditionally for wok style cooking. All separate ovens, fryers, warmers, water heating, and space heating would be provided by electricity. Any natural gas cooking equipment would meet the highest level of Energy Star rating available at the time of purchase.

Each of the three-buildings will have a center courtyard at street level for parking as well. The retail parking is planned to meet current code requirements with 269 spaces provided for the retail/restaurant space. The retail spaces as well as the residential spaces are planned as “For Sale” condo units.

The current plan is for a mix of residential units from 1 to 3 bedrooms units, some with a den, with an overall size average of approximately 1,350 square feet. The residential areas will total approximately 268,723 square feet with onsite parking provided for a total of 338 spaces.

The unit breakdown is
• 1 Bedroom units 9
• 2 Bedroom units 83
• 2 Bedroom units with Den 21
• 3 Bedroom units 70
• 3 Bedroom units with den 23
o TOTAL 206
Twenty percent (20%) of the (Base allowed total - 179) For-sale units will be offered at Below Market Rate Pricing (divided between 50% of the units priced at Moderate Income and 50% of the units at Median Income limits).

Two of the buildings (Building A & C) are planned for a total of five stories (1 retail level and four residential levels) while Building B is planned for a total of four stories (1 retail level and three residential levels). The second level of each building (first level of residential) will have a center courtyard with greenery, seating and gathering areas, and general recreational areas.

Two of the buildings will offer a roof deck garden with seating and open space. Building heights for Buildings A, B and C are 58’-8” feet, 43’-9” feet and 55 feet respectively. Each building shall include a photovoltaic solar system. The electricity generated by each system will be used to offset common area lighting and electrical needs which shall 1) reduce the costs of electricity borne by the condominium owners and 2) help to reduce the overall green-house gas emissions attributed to the project.

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General Planning Application
City of Cupertino
Project Site Address: 10145 N DeAnza Blvd., &
10118-10122 Bandley Drive, Cupertino CA 95014
Project Name: Marina Plaza (“Project”)
City Document Community Development Department April 29, 2022 DeAnza Venture LLC Checklist Item
Original Application
Item 17. Density Bonus, revised 7/22/22
See the attached letter dated March 23, 2022 along with an Addendum dated July 18, 2022 from Erik Ramakrishnan, Berliner Cohen, 10 Almaden Boulevard, 11th Floor San Jose CA 95113 (the Letter”), responding to Item 17. Density Bonus.

Attached to this Letter are reduced copies of the following Sheets which are referenced in the Letter.

The reduced sheets are:
• A3.2 1
st Floor (Courtyard) Affordable Unit Plan
• A3.3 2
nd Floor Affordable Unit Plan
• A3.4 3
rd Floor Affordable Unit Plan
• A3.5 4
th Floor Affordable Unit Plan
• A1.0A Setback Encroachment Plan
• A1.0D 45’ Height Affected Area – Plans/Sections
These same sheets are included in the full-size version of the building plans submitted as part of the Project application.

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TEN ALMADEN BOULEVARD

ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: (408) 286-5800
FACSIMILE: (408) 998-5388
www.berliner.com
Branch Offices
Merced, CA • Modesto, CA
____________ ____________

FOUNDERS
SANFORD A. BERLINER (d. 2020)
SAMUEL J. COHEN

OF COUNSEL
STEVEN L. HALLGRIMSON
FRANK R. UBHAUS
RALPH J. SWANSON
NANCY L. BRANDT
LESLIE KALIM McHUGH

BRADLEY HEBERT
ERIC D. CAPRON
BRUCE J. HENDRICKS
STUART B. SPENCER
July 18, 2022
Jeffrey Tsumura
Associate Planner
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Re: Marina Plaza Housing Development Project Application Addendum to Affordable Housing Plan and Density Bonus Report, Checklist Item Nos. 11 & 17 10118-10122 Bradley Dr. & 10145 De Anza Bvld. (APN 326-34-043 & -066)
Dear Mr. Tsumura:

This letter is on behalf of Larry Wang (the “Applicant”), the applicant for the above referenced housing development project (the “Project”). The letter supplements the March 23, 2022 Affordable Housing Plan and Density Bonus Report for the Project attached hereto as Exhibit A.
1 The primary purpose of this letter is to respond to Comment No. 18 in the City’s April 29, 2022 incomplete letter for the Project, which states: “It appears that some areas designated as common open space includes areas and portions of hallways for circulation (see screenshots of two areas below). Please address and revise as necessary.” This letter also amends certain information identified on page 5 of the March 23, 2022 letter regarding parking for the Project.
1 Page 5 of Exhibit A is not an identical copy to that provided with the original March 23, 2022 letter. As indicated in greater detail below, the original page 5 contained minor errors in describing parking ratios for the Project, which have been corrected. No other changes were made to the March 23, 2022 letter in Exhibit A. 4888-3755-3446v2
ERAMAKRISHNAN\29621001
ANDREW L. FABER
PEGGY L. SPRINGGAY
SAMUEL L. FARB
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. WOLF
KATHLEEN K. SIPLE
KEVIN F. KELLEY

MARK MAKIEWICZ

JOLIE HOUSTON
BRIAN L. SHETLER
HARRY A. LOPEZ
CHARLES W. VOLPE
CHRISTINE H. LONG
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G. SEPÚLVEDA
MICHAEL B. IJAMS
KIMBERLY G. FLORES
DAWN C. SWEATT
TYLER A. SHEWEY
JAMES F. LANDRUM, JR.

MICHAEL J. CHENG
EILEEN P. KENNEDY

JOSHUA BORGER
BENJAMIN M. JOHNSON
STEPHEN C. SCORDELIS
C. DAVID SPENCE
THOMAS P. MURPHY
ALESHIA M. WHITE

DENNIS CHIN
EDWARD C. HSU
ALEXANDRIA N. NGUYEN
ANDREW J. DIGNAN

ERIK RAMAKRISHNAN
LEILA N. SOCKOLOV
TIMOTHY K. BOONE

ANGELA SHAW
DAVID A. BELLUMORI
MARY T. NGUYEN
ELLEN M. TAYLOR
NATHAN C. BRADY
BRANDON L. REBBOAH
LINDSAY I. WALCZAK
IRIS C. CHIU
MAKAYLA A. WHITNEY
MARISA J. MARTINSON
MARIA I. PALOMARES
BENJAMIN H. WOHLFORD
KEVIN S. LANDIS
TIFFANY A. SCOGGIN
CHRISTIAN D. WICK
STACEY A. MACIAS
JENNIFER N. WISE

SAM ATABAY BIDGOLI
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Jeffrey Tsumura
July 18, 2022
Comment No. 18
The applicable objective standard referenced in Comment No. 18 appears to be the common open space standard for residential projects found at Section 1.01.040.C.2 of the Heart of the City Specific Plan, which requires a minimum of 150 square feet of common open space per unit. Nothing in the standard expressly indicates that courtyard areas needed for circulation cannot be included in this area. As explained in a separate letter from this firm included in the Applicant’s resubmission, and as stated in Government Code Section 65589.5(f)(4), the City is required to find that the Project is consistent with the City’s standards “if there is substantial evidence that would allow a reasonable person to conclude” that the Project is consistent. Because the specific plan does not preclude use of circulation areas in the calculation of common open space, a reasonable person could conclude that the Project is consistent with the City’s open space standards, and the City should therefore find that the Project meets the standard.

Even if the Specific Plan specified that circulation areas cannot count toward common open space, the Applicant is entitled to a waiver from the open space standard. As explained in Exhibit A, citing Government Code Section 65915(e) and Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.4th 755, 774, once an applicant proposes a project at the allowed density that qualifies for a density bonus, the City is required to waive any standard that physically precludes the project.

Here, if circulation areas are excluded, additional square footage is required as common open space. As explained in the memorandum from the Applicant attached to this letter as Exhibit B, providing that additional square footage would require the removal of five units from the Project.

Therefore, enforcing the common open space requirement as the City construes it would physically preclude construction of the Project at the proposed density, and a waiver must be granted. Such a waiver is hereby requested, in addition to the two waivers from height and setback requirements that were previously requested in the Density Bonus Report attached as Exhibit A.

Parking
Information about parking ratios contained in the March 23, 2022 letter is hereby amended as follows, strikethrough indicating deletions and underlined text indicating additions:

The Project also incorporates the parking ratios set forth in Government Code Section 65915(p), as follows:
• The Project is required to provide one parking space per onebedroom unit and 1.5 parking spaces per two- or threebedroom unit. • The Project proposes 10 nine one-bedroom units, requiring 10 nine parking spaces.
• The Project proposes 196 197 two- and three- bedroom units, requiring 294 296 parking spaces, for a total of 304 305 spaces to serve the residential component of the Project.

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• The Project exceeds this requirement by proposing 367 338 residential parking spaces.

For ease of reference, this information has been edited in Exhibit A. Please let me know if you have any questions about these edits.

Very Truly Yours,

BERLINER COHEN, LLP

ERIK RAMAKRISHNAN
[email protected]
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Exhibit A
March 23, 2022 Affordable Housing Plan
and Density Bonus Report
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TEN ALMADEN BOULEVARD

ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: (408) 286-5800
FACSIMILE: (408) 998-5388
www.berliner.com
Branch Offices
Merced, CA • Modesto, CA
____________ ____________

FOUNDERS
SANFORD A. BERLINER (d. 2020)
SAMUEL J. COHEN

OF COUNSEL
STEVEN L. HALLGRIMSON
FRANK R. UBHAUS
RALPH J. SWANSON
NANCY L. BRANDT
LESLIE KALIM McHUGH

BRADLEY HEBERT
ERIC D. CAPRON
BRUCE J. HENDRICKS
STUART B. SPENCER
March 23, 2022
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95104
Re: Marina Plaza Housing Development Project Application Affordable Housing Plan and Density Bonus Report, Checklist Item Nos. 11 & 17 10118-10122 Bradley Dr. & 10145 De Anza Bvld. (APN 326-34-043 & -066) To Whom It May Concern:

This letter is on behalf of applicant Larry Wang (the “Applicant”)1 in support of its entitlement application for a housing development project at the Marina Plaza shopping center (the “Project”). This letter is responsive to Item Nos. 11 (Affordable Housing Plan) and 17 (Density Bonus Report) in the City’s housing development project application checklist (the “Checklist”).

Project Overview
In addition to proposing commercial uses approximately equal in size to existing commercial floor space, the Project proposes 206 residential units, with a base density of 179 units calculated based upon a base density of 35 du/ac at 5.11 gross acres.2 Of the total 206 units, the 1 Larry Wang is an architect with Tectonic Builders Corporation. He is the project architect and is also the project applicant on behalf of De Anza Venture, LLC; Cupertino 10145, LLC; and Marina Plaza, LLC. Marina Plaza, LLC and Cupertino 10145, LLC are the owners of the project site, and De Anza Venture, LLC was formed as a joint venture among the property owners for the purpose of cooperating in seeking project entitlements. 2 Density for purposes of a density bonus is calculated based upon dwelling units per gross acre. See Gov. Code, § 65915(f); see also HCD Technical Assistance Letter to Encinitas, dated March 25, 2021, available here:
(Continued)
ANDREW L. FABER
PEGGY L. SPRINGGAY
SAMUEL L. FARB
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. WOLF
KATHLEEN K. SIPLE
KEVIN F. KELLEY

MARK MAKIEWICZ

JOLIE HOUSTON
BRIAN L. SHETLER
HARRY A. LOPEZ
CHARLES W. VOLPE
CHRISTINE H. LONG
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G. SEPÚLVEDA
MICHAEL B. IJAMS
KIMBERLY G. FLORES
DAWN C. SWEATT
TYLER A. SHEWEY
JAMES F. LANDRUM, JR.

MICHAEL J. CHENG
EILEEN P. KENNEDY

JOSHUA BORGER
BENJAMIN M. JOHNSON
STEPHEN C. SCORDELIS
C. DAVID SPENCE
THOMAS P. MURPHY
ALESHIA M. WHITE

DENNIS CHIN
EDWARD C. HSU
ALEXANDRIA N. NGUYEN
ANDREW J. DIGNAN

ERIK RAMAKRISHNAN
LEILA N. SOCKOLOV
TIMOTHY K. BOONE

ANGELA SHAW
DAVID A. BELLUMORI
MARY T. NGUYEN
ELLEN M. TAYLOR
NATHAN C. BRADY
BRANDON L. REBBOAH
LINDSAY I. WALCZAK
LEA M. NEMETH
IRIS C. CHIU
MAKAYLA A. WHITNEY
MARISA J. MARTINSON
MARIA I. PALOMARES
BENJAMIN H. WOHLFORD
KEVIN S. LANDIS
CHRISTIAN D. WICK
JENNIFER N. WISE

SAM ATABAY BIDGOLI
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Project will provide 36 Below Market Rate (“BMR”) units, or 20% of base density (35.8 units), rounded up to the nearest whole number. Of these 36 BMR units, 18 BMR units will be available to moderate-income households at a moderate-income sales price (the “Moderate Units”), and 18 BMR units will be available to median-income households at a median-income sales price, in both cases as calculated by the City (the “Median Units”).

Providing 20% of base units as Moderate Units (including Median Units) in a for-sale development entitles the project to a 15% density bonus, pursuant to Government Code Section 65915(f)(4). Fifteen percent of the base density of 179 units is 26.85 units. Pursuant to Government Code Section 65915(f)(5), this number should round up to 27 bonus units, to yield a total of 206 units in the Project.

The location of the BMR units has been chosen with two goals in mind: (1) to spread the units throughout the Project, and (2) to ensure comparability of size and unit type between the BMR units and market rate units. With respect to distribution throughout the Project, please refer to Sheets A3.2 to A3.5 in the plan set, which may be summarized as follows:
• First Floor:
o Building A: One Median Unit.
o Building B: Four Median Units, Two Moderate Units.
o Building C: One Median Unit, One Moderate Unit.
• Second Floor:
o Building A: Two Median Units, One Moderate Unit.
o Building B: One Median Unit, Three Moderate Units.
o Building C: Two Median Units, One Moderate Unit.
• Third Floor:
o Building A: One Median Unit, One Moderate Unit.
o Building B: Three Median Units, Two Moderate Units.
o Building C: Two Median Units, Two Moderate Units.
https://www.hcd.ca.gov/community-development/housing-element/docs/sdiencinitas-nov-densitybonus03252021.pdf.

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• Fourth Floor:
o Building A: One Median Unit, Two Moderate Units.
o Building B: Not applicable. Building B has only three floors. o Building C: Three Moderate Units.

With respect to comparability of unit size, please refer to the following table:

Average Bedroom Count Average Gross Area
Overall 2.4 Bedrooms 1,304 SF
Moderate Units 2.4 Bedrooms 1,307 SF
Median Units 2.4 Bedrooms 1,301 SF
The Project is eligible for two concessions/incentives, pursuant to Government Code Section 65915(d)(2)(B). At this time, the Project does not propose any concession/incentive, but the Applicant reserves the right to modify the project to take advantage of concessions/incentives, if necessary or appropriate. As explained in further detail below, the Project proposes to take advantage of the parking ratios set forth in Government Code Section 65915(p). Finally, the Project requires two waivers, including the following:
• An exception to the 45-foot height requirement per Section 1.01.030 of the Heart of the City Specific Plan (the “Height Requirement”), as illustrated in Sheet A1.0D of the plan set.

Sheet A1.01D depicts the 30 units that would be lost if the Height Requirement were enforced, which includes the entire fourth floors of Buildings A and C. • An exception in three locations, as shown in Sheet A1.0A of the plan set, to the side setback requirement at Section 1.01.030.C of the Heart of the City Specific Plan (the “Side Setback Requirement”). If the Side Setback Requirement were enforced, the Project would lose a combined total of approximately eight units per floor in Buildings A and C, for an overall total of at least 30 units.

Checklist Item No. 11: Affordable Housing Plan
The Checklist states that the Affordable Housing Plan shall describe how the Project “will comply with the City’s Below Market Rate (BMR) Program requirements set forth in the BMR Housing Mitigation Program Procedural Manual.”3 The following is a discussion of how the Project complies with each of the chapters in the City’s BMR Manual:
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• Chapter 1 (Introduction): Not applicable.
• Chapter 2 (Housing Mitigation Program):
o Section 2.3.1 requires that for-sale projects shall provide 50% of required BMR units as Moderate Units and 50% as Median Units. The Project meets this requirement by proposing 18 Moderate Units and 18 Median Units, as set forth above. o Section 2.3.2.A requires that where the number of BMR units required by a project results in a fractional unit between 0.5 and 0.99, then the number of BMR units shall be rounded up. As indicated above and under the discussion below regarding Chapter 4 of the BMR Manual, the Project’s BMR obligation is 20% of base density, which equals 35.8 units.

Therefore, per Section 2.3.2.A, the Project proposes 36 BMR units. o Section 2.3.3 requires the Applicant to submit an affordable housing plan. This letter, together with the pages of the plan set identified in it, which are hereby incorporated into this letter by reference, sets forth the Project’s affordable housing plan. o The BMR units will comply with Section 2.3.4 pursuant to conditions of approval and an Affordable Housing Agreement with the City. The BMR units will be dispersed throughout the Project and of comparable size and bedroom count with the market rate units, as discussed in the Project Overview above.
o The Applicant understands its obligations pursuant to Sections 2.3.5, 2.3.6, and 2.3.7 to price the BMR units at an affordable sales price and to guaranty their long-term affordability pursuant to an Affordable Housing Agreement with the City and resale agreements governing individual units for the required term of 99 years. • Chapter 3 (Mitigation Requirements for Non-Residential Developments): This chapter requires payment of a commercial linkage fee for non-residential space within the Project.

The Project proposes commercial space roughly equal in size to the existing shopping center, so that the Applicant does not anticipate owing commercial linkage fees. If fees are due, they will be paid at the appropriate time pursuant to conditions of project approval. • Chapter 4 (Mitigation Requirements of Ownership Residential Developments): This chapter requires 20% of base density in ownership projects to be provided as BMR units, as indicated above in the discussion regarding Chapter 2. Twenty percent of 179 units is 35.8 units. The Project proposes 36 BMR units to meet this requirement, half of which will be Moderate Units and half of which will be Median Units. Therefore, the inclusionary requirement will be met.
• Chapter 5 (Mitigation Requirements of Rental Residential Developments): Not applicable.

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with the requirements of both Chapters 3 (Non-Residential Developments) and 4 (Ownership Residential Developments).
• Chapter 7 (Alternatives to BMR Requirements): Not applicable. The Project does not propose any alternative to meeting the City’s BMR requirements. • Chapter 8 (City Incentives): The Project requests a density bonus, and the Applicant welcomes any additional incentives the City may be willing to provide.

Checklist Item No. 17: Density Bonus Report
The Project proposes an increase of 27 bonus units pursuant to Government Code Section 65915, as outlined above in the Project Overview. Note that this Project site does not include any existing or former housing units, so that no replacement housing requirements apply to the Project.

The Project also incorporates the parking ratios set forth in Government Code Section 65915(p), as follows:
• The Project is required to provide one parking space per one-bedroom unit and 1.5 parking spaces per two- or three-bedroom unit.
• The Project proposes nine one-bedroom units, requiring nine parking spaces. • The Project proposes 19 7 two- and three-bedroom units, requiring 29 6 parking spaces, for a total of 305 parking spaces total to serve the residential component of the project. • The Project exceeds this requirement by proposing 338 residential parking spaces.

The following discussion addresses Item Nos. 17.a to 17.d of the Checklist:

Item No. 17.a (location and square footage of units that qualify the project for a density bonus): Please see the discussion in the Project Overview above as well as Sheets A3.2 to A3.5 in the plan set.

Item No. 17.b (location and square footage of the density bonus units): Nothing in Government Code Section 65915 requires applicants to identify or distinguish between base units and those units being granted pursuant to the density bonus. Moreover, the statutory scheme does not lend itself well to making such a distinction because it is the actual Project proposed that is under review and not a hypothetical project that does not qualify for a density bonus. Nonetheless, in an attempt to satisfy this application requirement, the Applicant hereby identifies as bonus units the market rate units on the fourth floors of Buildings A and C since those floors could not be constructed without a density bonus. The fourth floors of Buildings A and C are proposed to include a total of 24 market rate units, which are labeled with square footage indicated in Sheet A3.5 of the plan set. To arrive at a total of 27 density bonus units, the Applicant also identifies Units A-305, A-306, and A-307, which are market rate units on the third floor of Building A that CC 12-06-2022
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could not be constructed without a density bonus because of the Side Setback Requirement. These units are labeled with square footage indicated in Sheet A3.4 of the plan set.

Item No. 17.c (concessions/incentives): None requested at this time.

Item No. 17.d (justification of requested waivers): Government Code Section 65915(e) states that the local agency shall waive any applicable development standard that would have the effect of physically precluding the Project unless the City finds that the waiver would violate state or federal law or would have a significant and unmitigable impact on public health or safety, as defined in Government Code Section 65589.5(d)(2).

Recently, the standard for considering waiver requests was interpreted by the court in Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755 (“Bankers Hill”). In Bankers Hill, the applicant for a housing development project that was approved by the City of San Diego sought various concessions/incentives and waivers for a project that qualified for a density bonus.

Neighborhood groups challenged the approval, including on the ground that a height waiver for the project should have been denied because the project could have been redesigned with a smaller courtyard to avoid the need for the waiver.

According to the court, the city lacked discretion to deny the waiver because once the applicant “established its eligibility for the density bonus …, it was entitled to a waiver of any development standards that would preclude construction” of the proposed project unless the city could make findings of a specific, adverse impact on public health or safety, or unless granting the waiver would violate state or federal law. (Bankers Hill, p. 774.) Citing earlier caselaw, the court explained that: “Standards may be waived that physically preclude construction of a housing development meeting the requirements for a density bonus, period. [Citation.] The statute does not say that what must be precluded is a project with no amenities, or that amenities may not be the reason a waiver is needed.” (Id. at p. 775, emphasis added.) Stated differently, the applicant’s burden to justify a waiver is to show that under Government Code Section 65915, the project qualifies for the density proposed, and that the project cannot be constructed as proposed unless a waiver is granted. If the applicant meets this burden, the burden shifts to the local agency to identify a significant, adverse impact on public health or safety or a violation of state or federal law. The applicant is not required to consider or propose alternative projects that attempt to achieve the same density without the waivers sought.

As indicated above in the Project Overview, the Project requires waivers of the Height Requirement and the Side Setback Requirement. The Height Requirement affects the Project’s ability to provide approximately 30 of the proposed units, and the Side Setback Requirement also affects the Project’s ability to provide approximately 30 of the proposed units. The Project qualifies for a density bonus with a maximum density of 206 units. The Applicant has designed a project with 206 units. The development standards from which waivers are sought would physically preclude construction of the Project. Thus, the Project is entitled to be granted waivers from those standards unless the City makes the findings for denial articulated above. The Applicant is unaware of any circumstance that would justify findings for denial.

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For the foregoing reasons, the Project complies with the requirements of the City’s BMR Manual, and it qualifies for a density bonus and associated parking reductions and waivers. Please let me know if I can assist you further in understanding the Project.

Very truly yours,

BERLINER COHEN, LLP

ERIK RAMAKRISHNAN
E-Mail: [email protected]
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ERAMAKRISHNAN\29621001
Exhibit B
Applicant’s Memorandum Dated June 16, 2022
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-1- 4865-0482-9221v1
NON-BC\29621001

MEMORANDUM
TO: Erik Ramakrishnan, Esq.

FROM: Larry Wang, AIA
Architect, Tectonic Builders Corp.

RE: Marina Plaza Shopping Center – Impact on Project of Providing Additional Open Space
CC: Greg Endom
DATE: June 16, 2022
The City of Cupertino construes the term “common open space” in the Heart of the City Specific Plan to exclude outdoor areas that provide space for ingress and egress. Under this interpretation, as currently designed the project does not provide adequate common open space. You requested an architectural opinion of the effect of providing additional common open space on the unit count in the absence of concessions and waivers.

Regarding the Common Open Space, our current design is 634 sf short on what is required by the city. The City requires 150sf per 1 dwelling unit hence it requires 30,900 SF for the total of 206 units. Our current plans provide 30,266 SF.

The 634 SF shortage is distributed as such, 319 sf on building A, 217 sf on building B and 98 sf on building C ( see chart below)
UNIT # FACTOR

COMMON OPEN
SPACE

REQUIRED

COMMON OPEN
SPACE

PROVIDED SURPLUS
BUILDING A 56 150sf/1 8,400 sf 8,081 sf -319 sf
BUILDING B 86 150sf/1 12,900 sf 12,683 sf -217 sf
BUILDING C 64 150sf/1 9,600 sf 9,502 sf -98 sf
SUM 206 30,900 30,266 sf -634 sf
This shortfall in open space will require us to remove a total of five (5) units from the project (Bldg. A– 3 units, Bldg. B- 2 units, and Bldg. C- 1 unit) CC 12-06-2022
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27'-0"
35'-0"
A A
A A
B
B
B
B
3 CY
4 CY
4 CY
4 CY
3 CY
4 CY
4 CY
2 CY
2 CY
2 CY
2 CY
27'-0"
35'-0"
22'-6"
35'-0"
35'-0"
10'-0"
22'-6"
10'-0"
10'-0"
3 CY
3 CY
3 CY
3 CY
4 CY 4 CY
4 CY
4 CY
4 CY
4 CY 4 CY
28'-6"
0 30 60 120

SETBACK

ENCROACHMENT PLAN
PLAN
SCALE: 1" = 30'
N
10145 DE ANZA BLVD. AND 10122 BANDLEY DR. CUPERTINO, CALIFORNIA A1.0A 7-01-22
10118 Bandley Dr. #E
Cupertino, CA 95014
408-216-0804
JOB NO.

DATE
De Anza Venture, LLC

MARINA PLAZA
Tectonic Architects & Associates
LOBBY
LOBBY
TRASH
TRASH
TRASH
LOBBY

RETAIL/
RETAIL/ RESTAURANT C103
RESTAURANT C100
RETAIL C104

RETAIL/
RESTAURANT C101
RETAIL C102 RETAIL/
RESTAURANT C103

RETAIL/
RESTAURANT B101

RETAIL/
RESTAURANT B100
RETAIL B106

RETAIL/
RESTAURANT B105
RETAIL B104
RETAIL B103
RETAIL B102
RETAIL B107
RETAIL B108
RETAIL A100
RETAIL/CAFE A104
RETAIL A101 RETAIL A102 RETAIL A103
RETAIL B109

COMMUNITY
ROOM B110
RETAIL
C105
ELEC.

MECH

FIRE RM
ELEC
ELEC
MECH
RETAIL A105

GAS METER

GAS METER

GAS METER
ELEC

MOTORCYCLE

MOTORCYCLE

SETBACK

SETBACK

SETBACK

SETBACK

SETBACK

SETBACK

SETBACK

SETBACK SETBACK
(E) ADJACENT

BUILDING
(E) ADJACENT

BUILDING
(E) ADJACENT

BUILDING
(E) BUILDING
(E) ADJACENT

BUILDING
(E) ADJACENT

BUILDING

SETBACK

SETBACK

BUILDING C

BUILDING B

BUILDING A
STEVENS CREEK BLVD.

ALVES DR.

BANDLEY DR.

N. DE ANZA BLVD

ENCROACHMENT AREA

PROPERTY LINE

SETBACK
LEGEND

RESIDENTIAL &

SALE OFFICE
LOBBY
TRANS.

TRANS.

TRANS.

TRANS.
6' HEIGHT

LOW WALL TRASH

ENCLOSURE
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C

BUILDING C

COURTYARD

RETAIL PARKING
45'-0"
4 3
2 1
4 3
2 1

RESIDENTIAL
14'-0" 14'-0"
55'-0"
10'-0" 10'-0" 10'-0" 3'-0"

GROUND FLOOR
238.5'

HIGHEST ADJACENT
GRADE 240.5
10'-0"
4TH FLOOR
3RD FLOOR
2ND FLOOR
1ST FLOOR

BASEMENT
EL: 238.5'
EL: 224.5'

ROOF DECK

PARAPET
PROP. LINE
24'-6"

SETBACK
A

PARKING RETAIL

BUILDING A

COURTYARD

PARKING

THE MAIN
PASEO
45'-0"
4 3
2 1
4 3
2 1

RESIDENTIAL
3 2
1 B
13'-3 1/2" 14'-0"
58'-8"
10'-0" 10'-0"

GROUND FLOOR
236.38'
10'-0" 10'-0"
DE ANZA BLVD.

PARAPET

ROOF DECK
4TH FLOOR
3RD FLOOR
2ND FLOOR
1ST FLOOR
BASEMENT EL: 223.20'
EL: 235.88' HIGHEST ADJACENT
GRADE 234.75'
3'-0"
PROP. LINE

FACE OF CURB
35'-0"

SETBACK
@ DE ANZA BLVD.
96-GAL
96-GAL 27'-6"
35'-0"
27'-6"
35'-0"
22'-6"
35'-0"
35'-0"
10'-0"
22'-6"
10'-0"
28'-6"
2 2
1 1
10145 DE ANZA BLVD. AND 10122 BANDLEY DR. CUPERTINO, CALIFORNIA A1.0D 2-24-22
10118 Bandley Dr. #E
Cupertino, CA 95014
408-216-0804
JOB NO.

DATE
De Anza Venture, LLC

MARINA PLAZA
Tectonic Architects & Associates
3 1 /16" = 1'-0"
BUILDING C 45' MAX HEIGHT AFFACTED AREA
SECTION 2-2
1 BUILDING A & B 4TH FLOOR PLAN
45' MAX HEIGHT AFFECTED AREA

PROPERTY LINE

SETBACK
LEGEND

BUILDING C
4TH RESIDENTIAL
FLOOR

BUILDING A
4TH RESIDENTIAL
FLOOR

BUILDING B

ROOF PLAN
45' MAX HEIGHT

AFFECTED AREA
ALVES DR.

N. DE ANZA BLVD
BANDLEY DR.

PROPERTY LINE

SETBACK
LEGEND
45' MAX HEIGHT

AFFECTED AREA

PLANS / SECTIONS
2 1 /16" = 1'-0"
BUILDING A 45' MAX HEIGHT AFFACTED AREA
SECTION 1-1
45' MAX HEIGHT

AFFECTED AREA
45' MAX HEIGHT

AFFECTED AREA
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November 2022 | Addendum to the Initial Study and Mitigated Negative Declaration State Clearinghouse Number 2016052006
Marina Plaza Project Initial Study and
Mitigated Negative Declaration
Addendum No. 1 Revised
City of Cupertino
Prepared for:

City of Cupertino
Contact: Gian Martire, Senior Planner
City of Cupertino | Planning Division
10300 Torre Avenue | Cupertino, CA 95014
(408) 777-3205
[email protected]
Prepared by:

PlaceWorks
Contact: Terri McCracken, Associate Principal
2040 Bancroft Way, Suite 400
Berkeley, California 94704
(510) 848-3815
[email protected]
www.placeworks.com
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Table of Contents
INTRODUCTION AND PURPOSE .................................................................................................. 1-1 STANDARD FOR PREPARATION OF AN ADDENDUM ................................................................ 2-1 PROJECT DESCRIPTION ............................................................................................................... 3-3 Regional Setting ............................................................................................................. 3-3 Local Setting ................................................................................................................... 3-3 Existing Site Setting ......................................................................................................... 3-6 Land Use and Zoning Designations ............................................................................. 3-8 Cupertino Municipal Code Requirements ............................................................... 3-11 Project Components ................................................................................................... 3-16 Required Permits and Approvals ............................................................................... 3-28 ENVIRONMENTAL ANALYSIS ....................................................................................................... 4-1 Aesthetics ....................................................................................................................... 4-1 Air Quality ....................................................................................................................... 4-4 Biological Resources ...................................................................................................... 4-8 Cultural and Tribal Cultural Resources ...................................................................... 4-14 Energy ........................................................................................................................... 4-20 Geology and Soils ........................................................................................................ 4-23 Greenhouse Gas Emissions ......................................................................................... 4-26 Hazards and Hazardous Materials ............................................................................. 4-28 Hydrology and Water Quality .................................................................................... 4-32 Land Use and Planning ............................................................................................... 4-34 Noise .............................................................................................................................. 4-36 Population and Housing ............................................................................................. 4-39 Public Services .............................................................................................................. 4-40 Parks and Recreation .................................................................................................. 4-42 Transportation .............................................................................................................. 4-43 Utilities and Service Systems ....................................................................................... 4-45 Wildfire ........................................................................................................................... 4-50 CONCLUSION .............................................................................................................................. 5-1 Substantial Changes to the Project ............................................................................. 5-1 Substantial Changes in Circumstances ...................................................................... 5-1 New Information ............................................................................................................ 5-2 LIST OF PREPARERS ...................................................................................................................... 6-1 CC 12-06-2022
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MARINA PLAZA PROJECT INITIAL STUDY AND MITIGATED NEGATIVE DECLARATION ADDENDUM NO. 1

CITY OF CUPERTINO

TABLE OF CONTENTS

LIST OF FIGURES
Figure 3-1 Regional and Vicinity Map ........................................................................................... 3-4 Figure 3-2 Aerial View of the Project Site ...................................................................................... 3-5 Figure 3-3 Conceptual Site Plan .................................................................................................. 3-18 Figure 3-4 Proposed Landscape Plan ......................................................................................... 3-23 Figure 3-5 Utility Plan ...................................................................................................................... 3-25

LIST OF TABLES
Table 1-1 General Plan EIR and Project Comparisons ............................................................... 1-2 Table 3-1 Comparison of the Approved Project and Modified Project ................................ 3-16 Table 3-2 Residential Unit Types per Building ............................................................................. 3-19 Table 4-1 Water Demand Comparison for the Approved and Modified Projects ............... 4-48

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November 2022 Page 1-1
Introduction and Purpose
On September 6, 2016, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration (2016 MND), State Clearinghouse (SCH) Number 2016052006, and approved the Marina Plaza Project (2016 Project). This document is an Addendum 2016 MND for the 2016 Project. For the purposes of this Addendum, the 2016 MND is considered the “Adopted MND” and the 2016 Project is considered the “Approved Project.” This document is the first Addendum to the Adopted MND.

Prior to the Adopted MND and Approved Project, the future buildout potential for the project site was evaluated at a program level in the General Plan Amendment, Housing Element Update, and Associated Rezoning Environmental Impact Report (EIR), State Clearinghouse Number 2014032007, that was certified by the Cupertino City Council in December 2014, and the subsequent addendum to the EIR that was approved by the City Council in October 2015 (General Plan EIR). 1 Accordingly, pursuant to the California
Environmental Quality Act (CEQA) Guidelines Section 15152, Tiering, the Adopted MND tiered from the City’s General Plan EIR.

Since the time of the Adopted MND and Approved Project, the Approved Project has been “modified” from what was evaluated in the Adopted MND. For the purposes of this Addendum, the proposed modifications to the Approved Project are considered the “Modified Project.” The purpose of this Addendum is to analyze the impacts of the construction and operation of the proposed Modified Project.

Based on the information provided in this Addendum, construction and operation of the Modified Project would not result in any new impacts or increase the severity of previously identified significant impacts analyzed in the Adopted MND. The proposed modifications to the Approved Project would not result in a substantial change to the project and, therefore, additional environmental review is not necessary.

Detailed discussions of the standards for the preparation of an addendum, the proposed modifications, and the environmental analysis of the proposed modifications are provided in Chapter 2, Standard for Preparation of an Addendum, Chapter 3, Project Description, and Chapter 4, Environmental Analysis, of this Addendum, respectively.

Pursuant to the provisions of CEQA and the CEQA Guidelines, the City of Cupertino is the lead agency charged with the responsibility of deciding whether or not to approve the proposed action. 1 City of Cupertino, certified General Plan Amendment, Housing Element Update, and Associated Rezoning EIR, (December 2014) State Clearinghouse Number 2014032007, and approved addendum (October 2015). Note that at the time of the Approved Project, only the October 2015 General Plan EIR addendum was completed. Since this time, the City had prepared other addenda to the General Plan EIR in July 2019, August 2019, twice in December 2019, and October 2021, for a total of five addenda.

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MARINA PLAZA PROJECT INITIAL STUDY AND MITIGATED NEGATIVE DECLARATION ADDENDUM NO. 1

CITY OF CUPERTINO

INTRODUCTION AND PURPOSE