.02 M-2009-02 Tim Kelly
CITY OF
m
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3251
FAX (408) 777-3333
Community Development Department
CUPERTINO
SUMMARY
Application: M-2009-02
Applicant: Tim Kelly
Owner: ECI Two Results, LLC
Property Location: 1 Results Way
Environmental Determination: Categorical Exemption
Agenda Date: June 9, 2009
APPLICATION SUMMARY:
The applicant has requested a Major Amendment (file no. M-2009-02) modifying the:
.:. Architectural and Site Approval (file no. ASA-2008-05)
.:. Use Permit Modification (file no. M-2008-03)
.:. Director's Minor Modification (file no. DIR-2008-32)
.:. Tree Removal Permit (file no. TR-2008-06)
For the purpose of extending the expiration date of these approvals for six years from
the date of approval of the extension, phasing construction, clarifying conditions of
approval and modifying the traffic and signal improvement condition.
RECOMMENDATION:
That the Planning Commission find that the scope of the project revisions are within the
scope of the previously adopted mitigated negative declaration; and recommends
approval of the major modification (M-2009-02) per the model resolution (Attachment
1).
BACKGROUND:
On September 16,2008, the City Council approved a Use Permit Modification (M-2008-
03), Architectural & Site Approval (ASA-2008-050) and Tree Removal Permit (TR-2008-
06) (Attachment 2) to allow for the private redevelopment of the 19.8-acre Results Way
office park, consisting of the demolition of five buildings containing about 139,632
square feet and the removal of 303 trees, and the development of three new, two-story
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Tim Kelly(ECI Two Results, LLC) M-2009-02
Page 2
June 9, 2009
office buildings containing 155,500 square feet, a two-IeveI204-space parking structure,
surface parking areas and landscape improvements that include 321 new trees. In
addition, on November 4, 2008, the Director of Community Development approved a
fa<;ade remodel of Building #5 (DIR-2008-32) to bring that existing building into closer
design consistency with the newly approved office buildings (Attachment 3).
Due to difficult economic conditions, the applicant is seeking an extension of the
development approvals, construction phasing flexibility, clarification of certain
conditions of approval and specific modification of the traffic/ street improvement
condition of approval. The applicant's objectives are to provide assurances to its
existing tenants and potential new tenants that they will be able to remodel Building #5
and/ or construct new building spaces when the economy improves and they can
accommodate the existing companies space needs.
DISCUSSION:
Modification Request
The permit modification request letter (Attachment 4) requests the following changes to
the previously approved permit conditions:
1. Extend expiration period of ASA-2008-05, M-2008-03 & TR-2008-06 for six (6)
years from the date of the approval of this amendment.
Staff Comments: Each of the previous approvals was for a period of two years from the
date of City action. Such approvals are deemed "vested" when: 1) actual substantial
and continuous activity has taken place on the land or 2) sufficient building activity has
occurred and continues to occur in a diligent manner. Routinely, the City grants one
year extensions to planning permits, but in the past the City has granted longer permit
approvals for larger or complex projects that provide a substantial public benefit.
Examples of recent approvals are listed below:
Project Name
Main Street Cupertino
Civic Park
Oaks Hotel/Mixed Use Bldg.
Length of Permit Approval
5 years (benefit - park w / public access)
7 years (benefit - park w /public access)
4 years (benefit - hotel taxes)
As a benefit to the City, the applicant is offering $200,000 in funds that may be used to
develop off-site traffic improvements to alleviate additional traffic congestion or
improve safety. This is further discussed later in the staff report.
All of the above permit time periods were from the date of approval. Staff feels a 5-year
extension from the date of approval of this amendment is sufficient time to start
construction of the first new building. Applicant is agreeable to the change to 5 years.
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Tim Kelly(ECI Two Results, LLC) M-2009-02
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June 9, 2009
2. Allow construction phasing flexibility for the three new buildings at the
applicant's discretion.
Staff Comments: The applicant is requesting the ability to decide whether to develop all
three new office buildings together or individually and in any order. Staff supports
this request given the following conditions proposed by the applicant:
a. Building construction is subject to the requirement that the existing and new
buildings will have sufficient parking, roadways, utilities and other accessory
facilities to function properly with the subsequent phases. In phase one, the
applicant shall satisfy all offsite improvements, phase one public art
requirement and installation of landscaping and improvements on both sides
of the site's front entry, or pay specified in-lieu fees, as a condition of
occupancy of the first new office building.
b. Use Sheet L-1.2 titled "Parking, Refuse & Circulation Plan" dated August 14,
2008 (Attachment 5) to identify the parking improvements required to
support each building and to define the limit of work for each building's
improvements. The Community Development Director will have the
authority to approve reasonable, minor adjustments of the plans.
c. The applicant shall have the right to implement an interim parking plan
before all three, new office buildings are completed, in-lieu of the final
parking layout shown on Sheet L-1.2., so long as the Community
Development Director determines that the proposed interim parking plan
satisfies parking and circulation requirements at that stage of project
development.
3. Amend Traffic/Signal Improvement Condition to allow an in-lieu
payment for offsite work instead of McClellan Road improvements.
Staff Comments: The Traffic/Signal Improvement condition (Condition No. 31
in the permits) has three main components:
a. Bubb Road/Results Way Intersection - street and signal
improvements.
b. McClellan Road Frontage - land dedication for street widening,
travel lane restriping, creation of a potential student drop-off area
on south side of McClellan.
c. City Council review and approval of traffic, signal and roadway
improvements.
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Tim Kelly(ECI Two Results, LLC) M-2009-02
Page 4
June 9, 2009
Planning and Public Works staff observed the traffic circulation on McClellan
Road next to both schools (Kennedy and Monta Vista) during the morning and
afternoon peak periods when the schools opened and closed, and concluded
that there may be traffic, signal and roadway improvements near the schools
that would be preferable to widening McClellan Road along the project's
frontage. Staff is looking at various improvement alternatives, but has not
reached any conclusions. Consequently the applicant will dedicate the
frontage along McClellan Road as required by Condition #31 and will
additionally donate an amount of $200,000 (Attachment 6). The funds can go
toward engineering and improvement costs west of Highway 85 and within a
1/2 mile radius of the site once the City decides on the final improvements.
The applicant wishes to meter the payment of the $200,000 as City expenses
for the street improvements are incurred, with any remaining balance of the
$200,000 payable shortly after the applicant receives occupancy of the new
building. Public Works disagrees with this approach and requests that the
total funds or a letter of credit for an equivalent amount be paid to the City
prior to building permit issuance.
4. Extension of Expiration Date of DIR-2008-32 for six (6) years from date
of approval of extension.
Staff Comments: DIR-2008-32 was a Director's Minor Modification of ASA-
2008-05 that approved a fac;ade remodel of Building #5. It had a 2-year
expiration period ending November 4, 2010. This remodel was granted a
separate approval to enable the applicant to act quickly to tenant this vacant,
existing building without tying it to the construction of the new buildings. In
line with staff's other recommendations, staff is recommending a 5-year
extension from the date of approval, with the stipulation that implementation
of the remodel would not vest either M-2008-03 or ASA-2008-05 for the new
buildings.
CEQA FINDINGS:
As lead agency, the City of Cupertino prepared a Mitigated Negative DeclarationJor
the One Results Way Office Campus Project ("Project"), in compliance with the
California Environmental Quality Act (CEQA) (Public Resources Code, section 21000 et
seq.) and the State CEQA Guidelines (California Code of Regulations, Section 15000 et
seq., as amended). The City Council adopted a Negative Declaration for the Project at a
public hearing on September 17, 2008.
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Tim Kelly(ECI Two Results, LLC)
Page 5
M-2009-02
June 9, 2009
The Planning Commission needs to finds that the actions contemplated hereunder are
within the scope of the Negative Declaration and that (1) there are no substantial
changes proposed in the project which will require major revisions of the previous
negative declaration due to the involvement of new significant environmental effects or
a substantial increase in the severity of previously identified significant effects; (2) there
are no substantial changes occurring with respect to the circumstances under which the
project is undertaken which will require major revisions of the previous negative
declaration due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified significant effects; and (3)
there is no new information of substantial importance, which was not known and could
not have been known with the exercise of reasonable diligence at the time the previous
Negative Declaration was adopted, that shows any of the following:
(A) The project will have one or more significant effects not
discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially
more severe than shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to
be feasible would in fact be feasible and would substantially
reduce one or more significant effects of the project, but the
project proponents decline to adopt the mitigation measure
or alternative; or
(D) Mitigation measures or alternatives which are considerably
different from those analyzed in the previous EIR would
substantially reduce one or more significant effects on the
environment, but the project proponents decline to adopt the
mitigation measure or alternative."
CONCLUSION:
In summary, staff is recommending approval of the request for permit
extension with the following revisions:
1) Extend ASA-2008-05, M-2008-03 and TR-2008-06 for a period of five (5) years
from the date of City Council approval;
2) Allow construction phasing flexibility for the three new buildings at the
applicant's discretion provided:
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Tim Kelly(ECI Two Results, LLC)
Page 6
M-2009-02
June 9, 2009
. That the existing and new building(s) will have sufficient parking,
roadways, utilities and other accessory facilities to function properly
with the subsequent phases
. For phase one, the applicant shall satisfy all offsite improvements,
phase one public art requirement and install the landscaping and
improvements on both sides of the site's front entry, or pay specified
in-lieu fees, as a condition of occupancy of the first new office building,
except when fees are required as a condition of the building permit.
. Use Sheet L-1.2 titled "Parking, Refuse & Circulation Plan" dated
August 14, 2008, to identify the parking improvements required to
support each building and to define the limit of work for each
building's improvements. The Community Development Director has
the authority to approve reasonable, minor adjustments of the plans
. The applicant shall have the right to implement an interim parking
plan before all three, new office buildings are completed, in-lieu of the
final parking layout shown on Sheet L-1.2., so long as the Community
Development Director determines that the proposed interim parking
plan satisfies parking and circulation requirements at that stage of
project development
3) Amend Condition no. 31 to provide as an improvement alternative the
donation of $200,000 for traffic, signal and roadway improvements west of
Highway 85 and within 112 mile radius of the project site. Payment of the
funds or a letter of credit would be due prior to building permit issuance.
4) Extend DIR-2008-32 for five (5) years from date of City Council
approval with the stipulation that implementation of the Director's
Minor Modification does not vest M-2008-03 or ASA-2008-05.
Attachments:
Attachment 1: Model Resolution
Attachment 2: City Council Action Letter dated September 19, 2008
Attachment 3: DIR-2008-32 Approval
Attachment 4: Letter from ECI Two Results LLC dated March 24, 2009
Attachment 5: Sheet L-1.2 titled "Parking, Refuse & Circulation Plan
Attachment 6: Letter from Neil Sekhri, of Gibson, Dunn & Crutcher LLP dated June 4,2009
Attachment 7: Adopted Negative Declaration and Notice of Determination
Prepared by: Colin Jung, AICP Senior Planner
Reviewed by:
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M-2009-02
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
Attachment 1
RESOLUTION NO.
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING APPROVAL OF A MODIFICATION OF AN ARCHITECTURAL AND
SITE APPROVAL (ASA-2008-05), USE PERMIT MODIFICATION (M-2008-03),
DIRECTOR'S MINOR MODIFICATION (DIR-2008-32) & TREE REMOVAL PERMIT (TR-
2008-06) TO EXTEND THE EXPIRATION DATE OF THESE APPROVALS FOR FIVE
YEARS, PHASING CONSTRUCTION, CLARIFYING CONDITIONS OF APPROVAL AND
MODIFYING THE TRAFFIC AND SIGNAL IMPROVEMENT CONDITION FOR AN
APPROVED REDEVELOPMENT OF AN EXISTING 19.8 ACRE OFFICE PARK (RESULTS
WAY CAMPUS)
SECTION I: PROTECT DESCRIPTION
Application No.:
Applicant:
Location:
M-2009-02
Tim Kelly (for ECI Two Results, LLC)
1 Results Way
SECTION II: FINDINGS FOR MODIFICATION OF USE PERMIT, ASA, DIRECTOR'S
MINOR MODIFICATION & TREE REMOV AL
WHEREAS, the Planning Commission of the City of Cupertino received an application
to modify an Architectural & Site Approval, Use Permit Modification, Director's Minor
Modification and Tree Removal Permit, as described on Section II of this Resolution;
and
WHEREAS, the necessary notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held one or more
Public Hearings on this matter; and
WHEREAS, the applicant has met the burden of proof required to support said
application; and has satisfied the following requirements:
1) The proposed use, at the proposed location, will not be detrimental or injurious
to property or improvements in the vicinity, and will not be detrimental to the
public health, safety, general welfare, or convenience; and
2) The proposed use will be located and conducted in a manner in accord with the
Cupertino Comprehensive General Plan and the Cupertino Municipal Code; and
3) The Planning Commission finds that the actions contemplated hereunder are
within the scope of the Negative Declaration and that (1) there are no substantial
changes proposed in the project which will require major revisions of the
previous negative declaration due to the involvement of new significant
environmental effects or a substantial increase in the severity of previously
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Resolution No.
Page 2
M-2009-02
June 9, 2009
identified significant effects; (2) there are no substantial changes occurring with
respect to the circumstances under which the project is undertaken which will
require major revisions of the previous negative declaration due to the
involvement of new significant environmental effects or a substantial increase in
the severity of previously identified significant effects; and (3) there is no new
information of substantial importance, which was not known and could not have
been known with the exercise of reasonable diligence at the time the previous
Negative Declaration was adopted, that shows any of the following:
(A) The project will have one or more significant effects not discussed in the
previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe
than shown in the previous ErR;
(C) Mitigation measures or alternatives previously found not to be feasible
would in fact be feasible and would substantially reduce one or more significant
effects of the project, but the project proponents decline to adopt the mitigation
measure or alternative; or
(D) Mitigation measures or alternatives which are considerably different from
those analyzed in the previous EIR would substantially reduce one or more
significant effects on the environment, but the project proponents decline to adopt
the mitigation measure or alternative."
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, the application to modify the Architectural & Site Approval,
Use Permit Modification, Director's Minor Modification and Tree Removal Permit are
hereby recommended for approval, subject to the conditions which are enumerated in
this Resolution beginning on Page 2 thereof; and
That the subconclusions upon which the findings and conditions specified in this
resolution are based and contained in the public hearing record concerning Application
No. M-2009-02 as set forth in the Minutes of the Planning Commission Meeting of June
9,2009, and are incorporated by reference as though fully set forth herein.
SECTION II: PROTECT DESCRIPTION
Application No.: M-2009-02
Applicant: Tim Kelly (for ECI Two Results, LLC)
Location: 1 Results Way
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
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Resolution No.
Page 3
M-2009-02
June 9, 2009
1. PAST APPROVALS
The conditions of approval of: ASA-2008-05, M-2008-03, and TR-2008-06 as
approved by the City Council, and DIR-2008-32 as approved by the Director of
Community Development remain in effect, except as may be amended by the
conditions contained in this resolution.
2. EXTENSION OF PERMIT EXPIRATION DATES
The following permit approvals, file numbers: ASA-2008-05, M-2008-03 and TR-
2008-06 are extended for a time period of five (5) years from the date of City
approval of the amendment.
File No. DIR-2008-32 is also extended for a time period of five (5) years from the
date of City approval of the amendment, provided that the separate
implementation of the Director's Minor Modification does not vest M-2008-03 or
ASA-2008-05.
3. CONSTRUCTION PHASING
The approved development described in file nos. ASA-2008-05 and M-2008-03
may be developed in phases and the applicant may proceed with the
construction of all or any of the three buildings and parking structure in any
order, at the applicant's discretion. Applicant in its discretion may submit a
building permit for each of the approved structures separately or submit a
building permit for the entire approved development with detailed plans for the
first building and a list of deferred submittals for the subsequent new buildings
as may be permitted under the California Building Code.
Concurrently with the submittal of a building permit (or deferred submittal) for
each new building, applicant shall submit a phasing plan for approval by the
Director of Community Development, showing that the then-existing office
buildings on the property plus the proposed new buildings, which will have
sufficient parking, roadways, utilities and other accessory facilities to function
properly with the subsequent phases. In addition:
. In the first development phase, the applicant shall satisfy all offsite
improvements, phase one public art requirement and install the
landscaping and improvements on both sides of the site's front entry,
or pay specified in lieu fees, as a condition of occupancy of the first
new office building, except where fees are required as a condition of
the building permit.
. That Sheet L-1.2 titled "Parking, Refuse & Circulation Plan" dated
August 14, 2008, is used to identify the parking improvements
required to support each building and to define the limit of work for
each building's improvements. The Community Development
Director has the authority to approve reasonable, minor adjustments of
the plans.
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Resolution No.
Page 4
M-2009-02
June 9, 2009
. That the applicant shall have the right to implement an interim
parking plan before all three, new office buildings are completed, in-
lieu of the final parking layout shown on Sheet L-1.2., so long as the
Community Development Director determines that the proposed
interim parking plan satisfies parking, parking lot lighting and
circulation requirements at that stage of project development.
4. TRAFFIC, SIGNAL & ROADWAY IMPROVEMENTS
Condition of Approval No. 31 in file nos. ASA-2008-05 and M-2008-03, is revised
in its entirety as follows:
a) The developer shall fund traffic, signal and roadway improvements at the
Bubb Road/Results Way intersection. The improvements include installing
new pedestrian signal heads, a new traffic signal cabinet, a new traffic signal
controller, new traffic signal loops, and replacing damaged pavement on the
Results Way approach, removal of traffic control island(s), pavement
restoration and lane restriping.
b) The developer shall fund Two Hundred Thousand Dollars ($200,000.00) for
soft and hard costs reasonably incurred by City for roadway and traffic
improvement projects located west of Highway 85 and within one-half mile of
the boundaries of the project site, payable at the time of building permit
issuance. Letter of credit for an equivalent amount is also acceptable.
c) Prior to occupancy of the first new office building, the developer shall make
an irrevocable offer for dedication to the City of an easement for right-of-way
purposes over land located along the McClellan Road frontage for road
widening. The Developer shall not be responsible for McClellan Road
improvement costs once the irrevocable offer of dedication of the easement
has been recorded.
d) The City Council shall have an opportunity to review and approve the traffic,
signal and roadway improvement plans for this project prior to building
permit issuance.
5. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER
EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020( d) (1), these Conditions constitute written notice of a
statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail
to file a protest within this 90-day period complying with all of the requirements of
Section 66020, you will be legally barred from later challenging such exactions.
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Attachment 2
OFFICE OF THE CllY CLERK
CITY HALL
10300 TORRE AVENUE. CUPERTINO, CA 95014-3255
TELEPHONE: (408) 717-3223 . FAX: (408) 777-3366
CUPERTINO
September 19, 2008
.Re: Consider Application Nos. ASA-2008-05, (EA-2008-06), M-2008-c3, and TR-2008-06,
Tim Kelly (Emharcadero Capital Partners), 1 Results Way, APN Nos. 357-20-041 and 357-
20-046: '
a) ~egative Declaration
b) Architectural and Site Approval and amendment to Develol'ment Ap?roval for the
demolition of five buildings containing about 139,632 square feet and the
development of three new, two-story office buildings containing 155,500 square feet,
a two-level, 204 space parking garage, surface parking lot and landscaping
improvements at an existing 19.8 acre office park
c) Tree Removal request to remove 303 trees on approved landscape plan and replace
them with 321 trees at the existing office park
~1' . ,
'At its September i( 2008 meeting, the Cupertino City Council approved the project with the
following conditions:
. ADOPTED A MITIGATED NEGATIVE DECLARATION
· OKAY TO REMOVE THE FENCE
. REQUIRE ADDITIONAL LANDSCAPING AT THRE~ LOCATIONS WHERE
STREETS EXIT ON THE WEST SIDE, IN ORDER TO SCREEN RESIDENTIAL
AREAS FROM VEmCLE HEADLIGHTS
. AMEND CONDITION NO. 31 REGARDING TRAFFIC/SIGNAL IMPROVEMENTS
TO REQUIRE THAT THE PROPOSED CHANGES BE SENT TO CITY COUNCn...
FOR APPROVAL AT A LATER DATE.
. . ADD A CONDITION REGARDING GARBAGE DUMPSTERS FOR BUILDING 5
. REQUIRE THAT THE BY AC EQUIPMENT BE BUFFERED AND/OR MOVED
AWAY FROM THE RESIDENTIAL AREA WITHOUT CREATING A NEGATIVE
Il\IP ACT ON THE AESTHETICS OF THE BUILDINGS
. ACCEn' THE TREE PLAN AS PROPOSED (WHICH INCLUDES REMOVING
THE SWE~T GUM TREES)
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ASA-2008-05
September 19, 1008
- .
2
The ASA conditions are as follows unless amended above:
SECTION ill: CONDITIONS ADMINISTERED BY THE COMM1JNIIY DEVELOPMENT
DEPT.
1. APPROVED EXHIBITS
The approval is based on EXhibits titled: "Results Way Campus, Results Way, Cupertino
CA" consisting of 27 pages labeled Xl.01, Cl.OO through C3.00, L-l.O through L-l.2; -
PERSPECTIVES, AO.01, AO.02, A-A2.01, A-A2.02; A-A3.1l, A-A3.12, B-A2.01, B-
1\2.02, B-A3.11, B-A3.12, C-A2.01, C-A2.02, C-A3.11, C~A3.12, G-A2.01, G-2.02, G-
A3.11, G-A3.l2, including _one color rendering of the project, dated "August 14, 2008",
except as may be amended by the conditions contained in this resolution.
,2. DEVELOPMENT APPROVAL
Approval is granted -for the demolition of five buildings containing about 139,632 square
feet and the development of three, new, two-story office buildings containing about 155,000
- square feet; a two-level, 204-space parking garage, surface parking lot and landscape
improvements at an existing 19.8 acre office/industrial park (Results Way Campus).
3. DEVELOPMENT ALLOCATION
. The applicant shall receive' a general plan Monta Vista Area office development allocation
of 11,015 square feet. ,-
4. BICYCLE PARKING
The applicant shall provide- bicycle, - parking facilities for the proposed development 'in
accordance with the City's Parking Regulations under Chapter 19.100 of the Cupertino
Municipal Code.' '
5. GREEN BUILDING
At the building permit stage, the applicant shall qualify the new. buildings to achieve a
LEED Silver certifiable designation fpr the core and shell.
6. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maXimum extent feasible
(which industry practice currently results in recycling up to 80% of total volume, depending
on the individual materials), subject to the Building Official approval. The applicant shall
provide evidence that materials will be recycled prior to issuance of final demolition
pemrits. -
7. NOTICE OF FEES. DEDICATIONS. RESER" ATIONS-OR-crtHER-E-X*e-TIGN-S
The Conditions of Project Approval set forth herein may mclude certain fees,
de9-ication requirements, reservation requirements, and other exactions. Pursuant to
qovernment Code Section 66020( d) (1), these Conditions constitute written notice
of a statement of the amount cif 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
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ASA-2008-05 September 19, 2008 . 3
fail to file a protest within this 90-day period complying with all of the requirements
of Section 66020, you will be legillybarred fromlater challenging such exactions.
8. PUBLIC ART
The applicant shall provide public art in accordance with General Plan policy 2- 66.
Public art sele~tion will be revie~ed by the Fine Arts Commission.
9. LOT LINE ADJUSTMENT/EASEMENTS
Prior to building permit approval, the applicant shall file a lot line adjustment application to
realign existing property lines. around proposed buildings and record appropriate easements
where utility lines, storm drainage, vehicular movements, garbage enclosure access and
parking may cross proposed property lines.
10. LANDSCAPE AMENITY
Applicant shall provide a landscape amenity next to the cafe.
11. INTERPRETATION OF P(ML) ZONING USES
Zoning Code section '19.6o".030(A) shall be interpreted' by the Director of Community
Development to allow a broad range of office uses related to high-tech, bio-tech, venture
capital, research and development and similar businesses, as well' as professional, financial
and advisory firms supporting such industries, so long as the overall occupancy of the
property reflects the City's goal to emphasize "tech park" type usage.
More commercially-oriented office uses, such as, insurance services, realty, patient-serving
medical and dental uses, that h~ve no relation to the " tech park" emphasis for the property
and no connection with other allowed tech park-type occupants of the property shall not be
included in this directive for interpretation, except the Director. may allow small stand-alone
general, commercial services that are incidental and complement the primary occupancy of
the property, such as a small bank or professional office, and except as otherwise permitted
or conditionally permitted in the ML zQne.
12. REPLACEMENT TREE PLANTING
The replacement tree:-replanting plan shall include the planting of trees to fill in the
landscape gaps in the project's westerly landscape strip.
13. POWER PURCHASE AGREEMENT
The applicant shall .investigate a power purchase agreement prior to building permit
approval.
14. SITE LIGHTING
All new ana replacement outdoor ligliting snlill meet cil)'standaros.
15. CONSTRUCTION MANAGEMENT PLAN
The applicant shall prepare a plan for the management of ohsite construction impacts on
the surrounding neighborhood as part of the building permit plan set" submittal.
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ASA-2008-05 _ September 19, 2008 4
16. ADDITIONAL TRAFFIC ANALYSIS
The applicant should prepare a traffic report, comparing the difference between existing
traffic conditions and project generated traffic impacts on local signalized intersections and
deliver that report for City Gounci1 consideration.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPT.
17. STREET WIDENING
Street widening arid dedications shall be provided in accordance with City Standards and
specifications and as required by the City Engineer.
18. CURB AND GUTTER IMPROVEMENTS
Curbs and gutters, sidewalks and related structures shal1be installed in - accordance with
grades and standards as specified by the City Engineer.
19. STREET LIGHTING INSTALLATION
Street lighting shall be installed and shall be as approved by the City Engineer. Lighting
fixtures shall be positioned so as ~o 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.
20. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire Department
as needed.
21. GRADING
Grading shall be as approved and required by the City Engineer 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.
22. DRAINAGE
Drainage shall be provided- to the satisfaction of the City Engineer. Pre- and post-
development calculations must be provided to indicate whether additional storm water control
measures are to be installed.
23. UNDERGROUND UTILITIES
The developer shall comply with the requirements of the Underground Utilities Ordinance No.
331 and other related Ordinances and regulations of the City of Cupertifio, and shall
coordinate_wi~affe.cted_uti1ity_p.myidelJLfor installation of underground utility devices. ,The
developer shall submit detailed plans showing utility underground provisions. Said plans
shall be subject to prior approval of the affected Utility provider and the City Engineer.
24. IMPROVEMENT AGREEMENT
The project developer shall enter into a development agreement with the City of Cupertino
providing for payment of fees, including but not limited to checking and inspection fees,
storm drain fees, park dedication fees and fees for under grounding of utilities. Said
agreement shall be executed prior to issuance of construction permits.
2-16
ASA-2008-05
Fees:
a. Checking & Inspection Fees:
$3,847.00 minimum
"b. Grading Permit:
IIllIllIDum
c. Development Maintenance Deposit:,
d. Storm Drainage Fee:
e. Power Cost:
f. Map Checking Fees:
g. Park Fees:
h. Street Tree
September 19, 2008
5
$ 6% of Off-Site Improvement Cost or
$ 6% of Site Improvement Cost or $2,239.00.
$ 2,000.00
$ 47,528.83
**
N/A
~/A
By Developer
**
Based on the latest effective PG&E rate schedule approved by the PUC
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.
25. TRANSFORMERS
Electrical transformers, telephon~ vaults and similar above ground equipment enclosures shall
be screened with fencing and landscaping or located underground such that said equipment is
not visible from public street areas. The transformer shall not be located in the front or side
building setback area.
26. 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. .
27. DEDICATION OF WATERLINES
The applicant shall dedicate to the City all waterlines and appurtances installed to . City
Standards and shall reach ~ agreement with San Jose Water for water servic~ to the subject
development.
28. NPDES CONSTRUCTION GENERAL PERMIT
The applicant must obtain a Notice of Intent (NOI) from the State Water Resources Control
Board, 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.
2-17
ASA-2008-05 September 19,2008 6
29, AMENDED DEVELOPMENT BEST MANAGEMENT PRACTICES (BMP)
REQUIREMENTS
The applicant must include the use and maintenance of site design, source control and storm .
water treatment BMP's, which must be designed per approved numeric sizing criteria. A
Storm Water Management Plan, Storm Water Facilities Easement Agreement, Storm Water
Facilities Operation and Maintenance Agreement, and certification of ongoing operation and
maintenance of treatment BMP's are required. .
30. EROSION CONTROL PLAN
The 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.
31. TRAFFIC/ SIGNAL IMPROVEMENTS
The developer shall fund traffic signal improvements at the Bubp RoadlResults Way
intersection. The improvements include installing new pedestrian signal heads, a new traffic
signal cabinet, a new traffic signal controller, new traffic signal loops, and replacing
damaged pavement on the Results Way approach, removal of traffic control island(s),
pavement restoration and lane re-striping. .
The developer shall also offer for dedication and improve land off the McClellan Road
frontage for road widening. The applicant shall also fund the cost of: 1) travel line re-
striping on the affected segment of McClellan Road, and 2) the installation of raised concrete
safety barriers to protect a potential student drop-off area on the south side of McClellan
Road.
32. TRASH ENCLOSURES
The trash enclosure plan must be designed to the satisfaction of the Environmental Programs
Manager.
33. REFUSE TRUCK ACCESS
The developer must obtain clearance from the Environmental Programs Manager in regards to
refuse truck access for the proposed development.
The Tree Removal conditions are as follows unless amended above:
SECTION III: CONDITIONS ADMINISTERED BY THE CONlNfUNITY DEVELOPMENT
DEPT.
l_~RQV-ALACTION
The applicant is approved to remove or transplant the 303 trees on site and depicted in the
Results Way Campus plan set page titled: " Tree Disposition Plan" dated 8/14/08, consisting
of one sheet labeled L-l.l, except as may be amended by the conditions of this Resolution.
2. TREE REPLACEMENTS
The applicant shall plant replacement trees per the City's Protected Tree Ordinance and in
.accordance with the approved Landscape Master Plan dated 8/14/08 and labeled L-l.O. The
replacement trees shall also be used to fill in the landscape gaps in the westerly landscape
strip between the single-family resl1~s and the office park.
ASA-2008-05
September 19, 2008
7
For any additional protected trees that are removed due to construction damage, hazardous
conditions or death, the applicant shall be required to replace these trees in accordance with
the Protected Trees Ordinance. Species and size of replacement trees shall be reviewed and
approved by the Community Development Department.
3. 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;resetvations, 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.
4. TRANSPLANTED TREES
Trees nos. 88 and 89 identified in the tree survey shall be transplanted in lieu of the
proposed tree nos. 131 and 174.
5. EVALUATION OF PROTECTION OF TREE NO. 179 (COASTAL REDWOOD)
Applicant shall evaluate the potential to protect tree no. 179 by modifying parking lot and
driveway improvements to minimize grading and provide pervious surfaces in the drip zone
among alternatives. Evaluation shall be reviewed by the City Arborist. Final decision for
removal and any replacement shall be made by the Qirector of Community Development.
The Modified Use Permit conditions are as follows unless amended above:
. SECTION ill: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
1. APPROVED EXHffiITS
The approval is based on Exhibits titled: "Results Way Campus, Results Way, Cupertino
CA" consisting of 27 pages labeled X1.01, C1.00 through C3.00, L-1.0 through L-1.2,
PERSPECTIVES, AO.Ol, AO.02, A-A2.01, A-A2.02, A-A3.11, A-A3.12, B-A2.01, B-
A2.02, B-A3.11; B-A3.12, C-A2.01, C-A2.02, C-A3.11, C-A3.12, G-A2.01, G-2.02, G-
A3.11, G-A3.12, including one color rendering of the project, dated "August 14, 2008",
except as may be amended by the conditions contained in this resolution.
2. DEVELOPMENT APPROVAL
Approval is granted for the demolition of five buildings containing about 139,632 square
feet and the development of three, new, two-story office buildings containing about 155,000
square feet; a two-level, 204-space parking garage, surface parking lot and landscape
improvements at an existing 19.8 acre office/industrial park (Results Way Campus).
3. DEVELOPMENT ALLOCATION
The applicant shall receive a general plan Monta Vista Area office development allocation
of11,015 square feet. .
2-19
ASA-2008-0S
September 19, 2008 .
8
4. BICYCLE PARKING
The applicant shall provide bicycle parking facilities for the proposed development iri
accordance with the City's Parking Regulations under Chapter 19.100 of the Cupertino
Municipal Code.
5. GREEN BUILDING
At the building permit stage, the applicant shall qualify the new buildings to achieve a
LEED Silver certifiable designation for the core and shell.
6. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent feasible
(which industry practice currently results in recycling up to 80% of total volume, depending
on the individual materials), subject to the Building Official approval. The applicant shall
provide evidence that materials will be recycled prior to issuance of final demolition
permits.
7. NOTICE OF FEES. DEDICATIONS. RESERVATIONS OR OTHER EXACTIONS
Th~ Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and oth~ 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.
8. PUBLIC ART
The applicant shall provide public art in accordance with General Plan policy 2- 66.
Public art selection will be reviewed by the Fine Arts Commission.
9. LOT LINE ADJUSTMENT/EASEMENTS
Prior to building permit approval, the applicant shall file a lot line adjustment application to
realign existing property lines around proposed buildings and record appropriate easements
where utility lines, storm drainage, vehicular movements, garbage enclosure access and
parking may cross proposed property li,nes.
10. LANDSCAPE AMENITY
Applicant shall provide a landscape ameni!y next to the cafe.
11. INTERPRETATION OF P(ML) ZONING USES
Zoning Code section 19.60.030(A) sh.all be interpreted by the Director of Community
Development to allow a broad range of o:ffic~ uses related to high-tech, bio-tech, venture
capital, research and development and similar businesses, as well as professional, financial
and advisory firms supporting such industries, so long as the overall occupancy of the
prope1i}' reflects the City's goal to emphasize ''tech park" type usage.
2-20
ASA-2008-05 September 19, 2008 9
More commercially-oriented office uses, such as, insurance services, realty, patient-serving
medical and dental uses, that have no relation to the " tech park" emphasis for the property
and no connection with other allowed tech park-type occupants of the property shall not be
. included in this directive for interpretation, except the Director may allow small stand-alone
general commercial services that are incidental and complement the p~ary occupancy of
the property, such as a small bank or professional office, and except as otherwise permitted
or conditionally permitted in the ML zone.
12. REPLACEMENT TREE PLANTING
The replacement tree-replanting plan shall include the planting of trees to fill in the
landscape gaps in the project's westerly landscape strip.
13. POWER PURCHASE AGREEMENT
The applicant shall investigate a power purchase agreement prior to building permit
approval. .
14. SITE LIGHTING
All new and replacement outdoor lighting shall meet city standards.
15. CONSTRUCTION MANAGEMENT PLAN
The applicant shall prepare a plan for !he management of onsite construction impacts on the
surrounding neighborhood as part of the buildin,g permit plan set submittal.
16. ADDITIONAL TRAFFIC ANALYSIS
The applicant should prepare a traffic report, comparing the difference between existing
traffic conditions and project generated traffic impacts on local signalized intersections and
deliver that report for City Council consideration.
SECTION N: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPT.
17. STREET WIDENING
Street widening and dedications shall be provided in accordance with City Standards and
specifications and as required by the City Engineer.
18. CURB AND GUTTER lMPROVEMENTS
"Curbs and gutters,' sidewalks and related structures shall be inStalled in accordance with
grades and standards as specified by the City Engineer.
19. STREET LIGHTING INSTALLATION
"Street lighting shall be installed and shall be as approved by the City Engineer. Lighting
fixtures shall be positioned so as to preclude glare and oth~ forms of visual inteiference to
adjoining properties, and shall be no higher than the" maximum height permitted by the zone
in which the site is located.
20. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire
Department as needed.
2"-21
ASA-2008-05 September 19, 2008 10
21. GRADING
Grad41g shall be as appraved and required by the City Engineer in accardance with Chapter
16.08 af the Cupertino. Municipal Cade. 401 Certificatians and 404 permits maybe required.
Please cantact Army Carp af Engineers 'and/ar Regianal Water Quality Cantral Baard as
, appropriate.
22., DRAINAGE
Drainage shall be provided to. the satisfactian afthe City Engineer. Pre- and past-
develapment calculatians must be provided to. indicate whether additianal starm water cantral
measures are to. be installed.
23. UNDERGROUND UTILITIES
The develaper shall camply with the requirements afthe Undergraund Utilities Ordinance No..
331 and ather related Ordinances and regulatians af the City af Cupertino., and shall
caardinate with affected utility praviders far installatian af undergraund .utility devices. The
develaper shall submit detailed plans shawing utility underground provisians. . Sai~ plans
shall be subject to. priar approval afthe affected Utility pravider and the City Engineer.
24. IMPROVEMENT AGREEMENT
The project develaper shall enter into. a develapment agreement with the City af Cupertino.
providing far payment af fees, including but nat limited to. checking and inspectian fees,
starm drain fees, park dedicatian fees and fees far under grounding af utilities. Said
agreement shall be executed priar to. issuance af canstructian permits.
Fees:
a. Checking & Inspectian Fees:
$3,847.00 minimum
b. Grading Permit:
; .
mmunum
c. Develapment Maintenance Depasit:
d. Starm Drainage Fee:
e. Pawer Cast:
f. Map Checking Fees:
g. Park Fees:
h. Street Tree
$ 6% af Off-Site Impravement Cast ar
$ 6% af Site Improvement Cost ar $2,239.00
$ 2,000.00
$ 47,528.83
**
N/A
N/A
By Develaper
**
,Based an the latest effective PG&E rate schedule approved by the PUC
Bands:
d
EaithfuLE.erformance_B.and:-101>-~lLofOff~.site_and~On::siteJmproYements
Labar & Material Band: 100% af Off-site and On-site Impravement
On-site Grading Band: 100% af site imprav~ents.
e.
f.
The fees described abave are impased based upon the current fee schedule adapted by the
City Council. Hawever, the fees impased herein may be madified at the time af recardatian
af a final map ar issuance af a building permit in the event af said change ar changes, the
fees changed at that time will reflect the then current fee schedule.
2-22
ASA-2008-05. September 19, 2008 11
25. TRANSFORMERS
Electrical transformers, telephone vaults and similar above ground equipment enclosures shall
be screened with fencing and landscaping or located underground such that said equipment is
not visible from public street areas. The transformer shall not be located in the front or side
building setback area.
26. 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. .
27. DEDICATION OF WATERLINES
The applicant shall dedicate to the City all waterlines and appurtances installed to City
Standards and shall reach an agreement with San Jose Water for water service to the subject
development.
28. NPDES CONSTRUCTION GENERAL PERMIT
The applicant must obtain a Notice of Intent (NOl) from the State Water Resources Control
Board, 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.
29. AMENDED DEVELOPMENT BEST: MANAGEMENT PRACTICES. roMP)
REQUIREMENTS
The applicant must include the use and maintenance of site design, source control and storm
water treatment BMP's, which must be designed p~r approved numeric sizing criteria. A
Storm Water Management Plan, Storm Water Facilities Easement Agreement, Storm Water
Facilities Operation and Maintenance Agreement, and certification of ongoing operation and
maintenance of treatment BMP's are required. .
30. EROSION CONTROL PLAN
The 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.
31. TRAFFIC/ SIGNAL IMPROVEMENTS
The developer shall fund traffic signal improvements at the Bubb Road/Resu~ts Way
. intersection. The improvements include installing new pedestrian signal heads, a new traffic
signal cabinet, a new traffic signal. controller, new traffic signal loops, and replacing
damaged pavement on the Results Way approach, removal of traffic control island(s),
pavement restoration and lane re-striping.
The developer shall also offer for dedication and improve land off the McClellan Road
frontage for road widening. The applicant shall also fund the cost of: 1) travel line re-
striping on the affected segment of McClellan Road, and 2) the installation of raised concrete
safety barriers to protect a potential student drop-off area on the south side of McClellan
Road.
2-23
ASA-2008-05 September 19, 2008 12
32. TRASH ENCLOSURES
The trash enclosure plan must be designed to the si\ltisfaction of the Environmental Programs
Manager.
33. REFUSE TRUCK ACCESS
The developer must obtain clearance from the Environmental Programs Manager in regards to
refuse truck access for the proposed development.
Please revie'Yconditions carefully. If you have any questions regarding the conditions of
approval, please contact the Department of Community Development at 408-777-3308 for'
clarification. Failure to incorporate conditions into your plan set will result in delays at the.
plan checking stage. If development conditions require tree preservations, do riot clear the
site until required tree protection devices are installed.
The conditions of project approval. set forth herein may include certain fees, dedication
requirements, reservation requirements, and other exactions. Pursuant to Government Code
Section 66020(d)(1), these conditions constitute written notice of a statement of the amount of
such fees, and a description of the dedications, reservations, and other exactions. You are
hereby further notified that the 90-day approval period in which you may protest these fees,
dedications, and other exactions, pursuant to Government Code Section 66020(a), has' begun.
If you fail to rIle a protest within this 90-day period complying with all of the requirements of
Section 66,020, you will be legally barred from later challenging such exactions.
Any interested person, including the applicant, prior to seeking judicial review of the city
council's decision in this matter, must first file a petition for reconsideration with the city clerk
within ten days after the council's decision. Any petition so filed must comply with municipal
ordinance code ~2.08.096.
~'JJt-
Grace Schmidt
Deputy City Clerk
cc: Community Development
Tim Kelly / Debbie Blehm
KA Real Estate
652 Bair Island Road, Suite 300
Redwood City. CA 94063
-'
Blake Reinhardt
Embarcadero Capital Partners
1301 Shoreway Rd, #250tBelmont, Ca. 94002
2-24
Attachment 3
CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council members
Chairman and Planning Commissioners
From: Steve Piasecki, Director of Community Developme~1
Prepared by: Colin Jung, Senior Planner .~
Date: November 4, 2008
Subject: Director's Minor Modification (DIR-2008-32) of a previously approved
Architectural and Site Approval (file no. ASA-2008-05) for a fa<;ade remodel of Building
#5 at an existing office park located at one Results Way.
Chapter 19.132 of the Cupertino Municipal Code allows for administrative
approval of minor changes in a project. The Director reports his decision
to the City Council and Planning Commission in time to allow any
Council member or Planning Commissioner to appeal the decision within
fourteen calendar days.
BACKGROUND:
The applicant, Tim Kelly of KA Real Estate, representing Embarcadero Capital Partners,
proposes to remodel the fa<;ade of an office building (Building #5) at the One Results
Way Office Park. In September 2008, the City Council approved a partial
redevelopment of this office park that would demolish five buildings and construct
three new ones and a parking structure.
DISCUSSION:
The intent of the fa<;ade remodel is to bring Building #5 in closer design consistency
with the newly approved office buildings (Exhibit A). The fa<;ade plans are being
reviewed under a separate planning permit because the applicant decided to accelerate
the Building #5 fa<;ade remodel ahead of the redevelopment of the office park.
The fa<;ade changes involve:
1) Removing an existing plywood cap from the top of the building;
2) Demolishing selective concrete wall panels and replacing them with. a new
window system;
3) Removing existing window system and lowering the sill height 6 inches to
prepare for the new window system; and
4) Demolishing the existing building entry improvements and constructing a new
entry plaza to match the new buildings (See plan set details and color elevation
of proposed remodel).
No changes are proposed to the abutting approved landscape areas.
2-25
DIR-2008-32
One Results Way
Page 2
ACTION:
The Director of Community Development deems the fa<;ade remodel minor and
approves the change as described in the plan set exhibit entitled:
"Results Way Campus/Results Way/Cupertino, CA," consisting of 14 sheets labeled:
Xl.Ol, Al.ll, A2.11, and Colored East Elevation.
This approval of the modification is effective November 4,2008. The fourteen calendar
day appeal period will expire on November 18, 2008.
Enclosures: Plan set
Exhibit A: Approved Color Elevations for approved buildings A, B & C
and Existing Building #5 (three sheets)
Gj planningj pdreportjDIRjDIR-2008-32
2-26
--I Embarcadero
CAPITAL PARTNE RS LLC
Attachment 4
March 24, 2009
Steve Piasecki
Director of Community Development
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
Re: Results Way Permits
Dear Mr. Piasecki:
On September 17,2008, the City Council adopted a mitigated negative declaration (EA-2008-06)
and approved Architectural and Site Approval (ASA-2008-05), use permit modification (M-2008-03) and
Tree Removal (TR-2008-06) for partial redevelopment of the One Results Way Office Park, involving
demolition of five buildings and construction of three new office buildings, a garage, surface parking and
various other site improvements. As a separate matter, on November 4,2008, you approved Director's
Minor Modification (DIR-2008-32) of ASA-2008-05 for fac;ade remodeling of Building 5 in the Office
Park.
By this letter the property owner ECI Two Results LLC ("Results") requests approval to extend
and amend the four approvals. We believe these changes can be approved relying on the previous
negative declaration.
New Office Complex Approvals
A. Current Expiration Dates.
When ASA-2008-05, M-2008-03 and TR-2008-06 were approved, the resolutions adopted by the
City Council and the Conditions of Approval did not mention expiration dates. As explained below, our
reading of the Municipal Code suggests that each approval potentially expires two years after the
approval date (September 17, 2010) if it is not "used" by then.
1. M-2008-03. The use permit modification was required under the property's
"P(ML)" zone as a non-minor modification to the earlier approved development plan for the site (City
Code section 19.48.11O.B). The city regulations governing approval of conditional use permits ("CUP")
apply. According to Code section 19.124.100.A, a CUP apparentlyexpires if it is not "used" in two
years, and a CUP "shall be deemed to be 'used' when actual substantial and continuous activity has taken
place upon the land... or, in the event of the erection of a structure or structures, when sufficient building
activity has occurred and continues to occur in a diligent manner."
1Jgb5Ho?f.rryl(~~~~ad. Suite 250
e'elmont. tcifi'fOrnia 94002
www.ecp-Ilc.com
650.373.1230 tel
650.373.1617 fax
2-21
Steve Piasecki
March 24, 2009
Page 2
2. ASA-2008-05. Similarly, the Architectural and Site Review approval expires if
not "used" in two years. The approval is deemed used if "actual substantial and continuous construction
activity has taken place." (Code section 19.134.100.B)
3. TR-2008-06. The "Protected Trees" regulations (Chapter 14.18) do not appear to
have any expiration. Section 14.18.150 states that an application for tree removal made as part of a
development project will be considered and decided concurrently - which implies that the same expiration
date would apply.
B. Extension of Approvals.
Results remains committed to building this first-class office complex as soon as it can. As the
City is well aware, present economic conditions make it difficult to foresee when demand for office space
will warrant constructing the three new buildings. Results needs assurance that it may build when the
time comes, and can spread out the phasing of the buildings, without having to repeat the time consuming
permitting process. This assurance is needed so Results can arrange financing with lenders and negotiate
leases with potential tenants of space that is not yet built. This is especially critical given the substantial
site work and infrastructure required at the beginning of the project. Results also needs the flexibility to
decide the order of construction among the buildings, which may vary depending on the needs of new
tenants.
1. ASA-2008-05 and M-2008-03. Results requests that the City amend both ASA-
2008-05 and M-2008-03 by adding the following condition.
Subject to the following terms and conditions, this approval shall allow for development
of the three new office buildings together or individually and in any order, at the
applicant's discretion. Approval of the applicant's request to build each individual office
building shall be subject to the requirement that the then-existing office buildings on the
property plus the proposed new building will have sufficient parking, roadways, utilities
and other accessory facilities to function properly without the remainder of the project.
The applicant shall have six (6) years from approval of this amendment to apply for a
building permit for each or all of the three office buildings, along with applications for
associated demolition of existing buildings and necessary site work (including
landscaping and tree removal/replacement). The applicant thereafter shall be allowed
such time as reasonably required to obtain each building permit and complete each offic,e
building.
Subject to Condition 31 as amended, the applicant shall satisfy all offsite improvements,
public art requirements, and installation of landscaping and improvements on both sides
of the site's front entry, or pay specified in lieu fees, as a condition to occupancy of the
first office building; provided, force majeure circumstances, or delays by the City
processing plans, completing inspections, or making decisions regarding said obligations,
EOI05001/776295-1
1301 Shoreway Road, Suite 250 Belmont, Califo~~ ~13>02-4151 Tel 650.373.1230 Fax 650.373.1617
Steve Piasecki
March 24, 2009
Page 3
shall allow the applicant to occupy its office buildings even if the required improvements
are not completed or fees are not paid.
Sheet L-l.2 "Parking, Circulation Plan" dated August 14, 2008 as identified in Condition
of Approval No.1 shall be used to identify the parking improvements required to support
each office building, and to define the limit of work for each office building's related
improvements; provided, the Director of Community Development may approve
reasonable adjustments that the applicant may request, which adjustments shall not
require approval by the Planning Commission or City Council so long as the Director
designates them as minor modifications under Municipal Code Chapter 19.132.
The applicant shall have the right to implement an interim parking plan before all three
new office buildings are completed, in lieu of the fmal parking layout shown on Sheet L-
1.2, so long as the Director determines in his/her reasonable discretion that the proposed
interim plan satisfies parking requirements at that stage of project development. As an
illustration but not as a limitation, the applicant may elect to construct Building A first
and provide a surface parking lot in the area of the planned garage and Building B,
deferring construction of the garage until it actually is needed.
2. TR-2008-06. TR-2008-06 should be amended by adding the following
statement:
This permit shall remain in force until the earlier of (a) completion of all the tree removal
it authorizes or (b) expiration of ASA-2008-05 and M-2008-03.
C. Amendment to Traffic/Signal Improvement Condition.
Condition of Approval No. 31 (which is worded the same in both ASA-2008-05 and M-2008-03)
currently requires Results to (a) fund certain traffic and signal improvements at the Bubb RoadlResults
Way intersection, (b) offer land for dedication and improve the property's McClellan Road frontage for
road widening, and (c) fund restriping and concrete safety barriers on McClellan Road.
1. Bubb Road/Results Way Intersection. Results remains committed to perform
this work as described in Condition 31. To clarify its timing, please add the following to the end of the
first paragraph:
The applicant and the City shall cooperate in good faith to have this work completed
prior to occupancy of the first new office building. However, force majeu~e
circumstances, or delays by the City processing plans, completing inspections, or making
decisions regarding said obligations, shall allow the applicant to occupy its office
buildings even if the required improvements are not completed.
2. McClellan Road Improvements. Results understands that the City may prefer
improvements at the nearby intersection of Bubb Road and McClellan Road, instead of the road
EOI05001/776295-1
1301 Shoreway Road, Suite 250 Belmont, Calif~~~i:P02-4151 Tel 650.373.1230 Fax 650.373.1617
Steve Piasecki
March 24, 2009
Page 4
widening, restriping and safety barrier work along McClellan Road as described in Condition 31. To
implement this option the following should be added to the end of the second paragraph in Condition 31:
In lieu of the applicant dedicating land and performing the above-described
improvements on McClellan Road, the City may elect to have the applicant reimburse the
City up to $125,000 of its hard and soft costs to install other improvements at or near the
intersection of Bubb Road and McClellan Road as the City may determine and design.
If the City elects to require the McClellan Road frontage improvements, then subject to
the timing qualifications below the applicant shall perform the work when the City so
elects, and the applicant and the City shall cooperate in good faith to have this work
completed in a timely manner; provided, the City shall not require such work to be
completed before the first new office building is ready for occupancy. Occupancy of the
office building shall not be delayed if force majeure circumstances, or delays by the City
processing plans, completing inspections, or making decisions regarding the McClellan
Road frontage improvements, delays their construction. If the City has not previously
made its election, it shall notify Results which option the City selects within 30 days after
Results submits its building permit application for its first new office building, in order to
provide enough time for Results to complete the road improvements and not delay
occupancy of the building. If the City does not make its election by that date, Results
may occupy the new building even if the road improvements are not started or completed
and even if the City has not yet made its election, and Results thereafter will proceed in a
timely manner to complete the road improvements once the City elects that option.
If the City elects to require the in-lieu payment, Results shall reimburse the City up to
$125,000 of expenses incurred by the City for improvements at the Bubb
Road/McClellan Road intersection, payable after Results receives documentation
showing such City expenses, but not earlier than occupancy of the first new office
building. If the City fails to make its election between the McClellan Road frontage
improvements and reimbursement of costs for the Bubb Road/McClellan Road
intersection improvements by the time the applicant is ready to occupy its fmal new
office building under this approval, the applicant shall pay the City $125,000 for the
City's future use for circulation improvements as the City sees fit, and such payment
shall fully satisfy the applicant's obligation under this condition.
Building 5 Approval
A. Current Expiration Date.
Your November 4, 2008 report to the City Council and Planning Commission that announced
approval ofDIR-2008-05 for Building 5 did not mention an expiration date. Municipal Code Chapter
19.132 does not specify any lifespan for an Administrative Approval. The two-year standard for ASA
approvals apparently applies, meaning that DIR-2008-32 potentially expires on November 4,2010.
EOI05001/776295-1
1301 Shoreway Road, Suite 250 Belmont, Califo~12 ~'1jl02-4151 Tel 650.373.1230 Fax 650.373.1617
Steve Piasecki
March 24, 2009
Page 5
B. Extension of Approval.
As explained above, economic conditions make it difficult to foresee when demand for office
space will warrant renovating Building 5. Results needs assurance that when a potential tenant eventually
becomes available, it will be able to act quickly to negotiate a lease, secure financing and obtain building
permits without having to repeat the ASA review and approval process. Results asks that DIR-2008-32
for Building 5 be amended by adding the following:
The applicant shall have six (6) years from approval of this amendment to apply for a
building permit for Building No.5, along with applications for demolition and other
approvals necessary to implement the building permit.
C. Linkage to ASA-2008-05.
DIR-2008-32 for Building 5 was described as a minor modification of ASA-2008-05, which was
approved in September 2008 for the three new office buildings. ASA-2008-05 contains a list of
Conditions of Approval adopted by the City as part ofthe new development. Both Results and the City
intended and understood that Building 5 would proceed separately and independently from that project,
subject only to designing the Building 5 fa~ade and entry plaza to complement the new buildings and
open spaces, and ensuring that the redesigned internal roadways, parking and utilities continue to serve
Building 5. To avoid potential future misunderstanding, Results requests that DIR-2008-32 be amended
by adding the following:
The only ASA-2008-05 Conditions of Approval that shall apply to Building 5 and the
work authorized under DIR-2008-32 are Section III, Conditions 6, 7, 11, 14, and 15, and
the Condition added by the City Council on September 17, 2008 requiring that the
dumpster serving Building 5 not be located along the property line with adjoining
residences.
Minor Corrections
On September 19,2008, the Deputy City Clerk sent Results the final version of the approvals
granted by the City Council for ASA-2008-05, M-2008-03, and TR-2008-06. We have noted the
following minor errors in that document, which we request be corrected in the official City records.
1. In the first line on page 1, the use permit modification should be listed as
M-2008-03 instead of "M-2008-01."
2. In the middle of page 1, the date of approval by the City Council should be shown
as Sentember 17.2008 instead of "September 16."
EOI05001/776295-1
1301 Shoreway Road, Suite 250 Belmont, Caljfo~~ 34f024151 Tel 650.373.1230 Fax 650.373.1617
Steve Piasecki
March 24, 2009
Page 6
Thank you for your cooperation processing this application. Please let us know what other
materials the City may require.
Yours,
ECI Two Results LLC,
a California limited liability company
By: Embarcadero Capital Investors Two LP, a Delaware limited partnership,
its sole member
By: Embarcadero Capital Partners LLC, a Delaware limited liability company,
its sole general partner
By: Hamilton Partners LP, a California limited partnership, manager
By: Hamilton Ventures Inc., a California corporation,
its sole general partner
By:
cc: Blake Reinhardt
Tim Kelly
Edward Shaffer
E0105001/776295-1
1301 Shoreway Road, Suite 250 Belmont, Califo~~3'02-4151 Tel 650.373.1230 Fax 650.373.1617
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GIBSON. DUNN &CRUTCHER 1
LAWYERS
Attachment 6
A REGISTERED LIMITED LIABILITY PARTNERSHIP
INCLUDING PR.OfESSIONAL CORPORATIONS
555 Mission Street, Suite 3000 San Francisco, California 94105-2933
(415) 393-8200
www.gibsondunn.com
NSekhri@gibsondunn.com
June 4, 2009
Direct Dial
(415) 393-8334
Fax No.
(415) 374-8435
Client No.
Ms. Aarti Shrivastava
Director of Community Development
Mr. Ralph Qualls
Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA95014-3255
Re: Application ASA-2008-05, M-2008-03, TR-2008-069 (1 Results Way)
Dear Ms. Shrivastava and Mr. Qualls:
My client, Embarcadero Capital Partners, LLC ("Developer"), has submitted a request for
amendment of the above-referenced approvals, which request is calendared for consideration at
the Planning Commission meeting of June 9, 2009. Among other matters, the Planning
Commission will be considering an amendment of Condition 31 that would delete the
requirement to improve land off the McClellan Road, fund costs for travel lane restriping and
install raised concrete safety barriers as described in the second paragraph of Condition 31.
However, in the interest of facilitating improvements that might benefit the project, Developer
has agreed to make a voluntary contribution to the City in the amount of Two Hundred Thousand
Dollars ($200,000.00) for soft and hard costs reasonably incurred by City for improvements and
incentives to reduce traffic congestion and enhance pedestrian safety to be used in an area west
of Highway 85 that is located no more than 1/2 mile from the site (the "hnprovement Area").
Payment of this contribution will be in accordance with the terms further described in this letter,
to be documented in an agreement that will be finalized prior to final approval of the
amendments by the City Council.
LOS ANGELES NEW YORK WASHINGTON. D.C. SAN FRANCISCO PALO ALTO LONDON
PARIS MUNICH BRUSSELS DURAl SINGAPORE ORANGE COUNTY CENTURY CITY DALLAS DENVER
2-34
GIBSON, DUNN &CRUTCHERLLP
Ms. Aarti Shrivastava
Mr. Ralph Qualls
June 4, 2009
Page 2
If at any time prior to issuance of a certificate of occupancy for the first new office
building constructed under this development approval, City incurs hard or soft costs for a
roadway or traffic improvement project located within the Improvement Area, City may give the
Developer a written request for reimbursement, accompanied by satisfactory evidence of the
costs incurred, such as invoices marked "paid", lien releases, and cancelled checks. Within
forty-five days of Developer's receipt of such reimbursement request for qualifying expenses,
developer will agree to pay City the requested amount (up to the maximum cumulative amount
of $200,000). Within forty-five days after issuance of a certificate of occupancy for the first new
office building (not including Building #5), Developer will pay the City any remaining unpaid
balance on its funding obligations hereunder, up to the maximum of $200,000, for use by the
City only on future roadway and traffic improvement projects within the Improvement Area.
Weare in the process of working with the City Attorney to finalize a legally binding and
enforceable agreement that will memorialize this contribution. The final agreement will be
executed and delivered to the City prior to City Council consideration of the approvals, to be
effective upon the date such approvals become final and unappealable. Thank you for your
consideration.
Very truly yours,
~
Neil Sekhri
cc: Carol Korade
John Hamilton
Blake Reinhardt
NHS/nhs
100669462_2 (2).DOC
2-35
Attachment 7
OFFICE OF THE CITY CLERK
CUPERTINO
CITY HALL
10300 TORRE AVENUE. CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 · FAX: (408) 777-3366
NOTICE OF DETERMINATION
EA-2008-06
Applications ASA-2008-05, M-2008-03, TR-2008-06
Tim Kelly (Embarcadero Capital Partners)
At its meeting of September 16, 2008, the City Council of the City of Cupertino held a public
hearing to consider an applications for:
Modification of a Use Permit and Architectural and Site Approval of five buildings containing
about 139,632 square feet and the development of three new, two-story office buildings containing
155,500 square feet, a two-level, 204 space parking garage', surface parking lot and landscaping
improvements at an existing 19.8 office park
Tree Removal .request to remove 303 trees on an approved landscape plan and replace them with
321 trees at the existing office park.
The decision of the City Council was to approve said project. The City Council by fIling a
Mitigated Negative DecIaration on this project on September 16, 2008, has determined that the
project is consistent with the General Plan and there are no significant environmental impacts. The
Mitigated Negative DecIaration has been prepared pursuant to the provisions of State and City
guidelines. A copy of said Mitigated Negative DecIaration is available in the Office of the City
Clerk, 10300 Torre Avenue, Cupertino, California.
~~L)jj--
Grace Schmidt
Deputy City Clerk
City of Cupertino
Please retuni to City Clerk's Office
10300 Torre Av Cupertino, CA 95014
CITY OF CUPERTINO
MITIGATED NEGATIVE DECLARATION
As provided by the Environmental Assessment Procedure adopted by -the City Council of the
City of Cupertino on May 27, 1973, and amended on March 4, 1974, January-171977, May 1,
1978, and July 7, 1980, the following described project was granted a Mitigated Negative
Declaration by the City Council of the City of Cupertino on September 17, 2008
PROTECT DESCRIPTION AND LOCATION
Application No.:
Applicant:
Location:
ASA-2008-05, M-2008-03, TR-2008-06 (EA-2008-06)
Tim Kelly (Embarcadero Capital Partners)
1 Results Way
DISCRETIONARY ACTION REQUEST
Modification of a Use Permit and Architectural and Site Approval of five buildings containing
about 139,632 square feet and the development of three new, two-story office buildings
containing 155,500 square feet, a two-level, 204 space parking garage, surface parking lot and
landscaping improvements at art existing 19.8 acre office park and a
Tree Removal request to remove 303 trees on an approved landscape plan and replace them
with 321 trees at the existing office park
FINDINGS OF DECISIONMAKING BODY
The City Council granted a Mitigated Negative Declaration since the project is consistent with
the GenerafPlan and there are no significant environmental impacts.
The applicant shall adhere to all of the conditions required by the City Council on September 17,
2008 including but not limited to:
1) Tree replacements shall be made in accordance with the protected Tree Ordinance;
2) In lieu of transplanting trees #131 & 174, #s 88 & 89 will be transplanted instead
3) Evaluate improvements in the parking area to provide protection/preservation of tree
#179
4) Traffic improvements will be made to Bubb Road and Results Way including the removal
of e /I ork hop" island, do related lane re-striping and modify traffic signalization
t a traf c signal warning sign
Steve Piasecki
Director of Community Development
CERTIFICATE OF THE CITY CLERK
This is to certify that the above Mitigated Negative Declaration was filed in the Office of the
City Clerk of the City of Cupertino on ,-5 ~."j)i. ,;;,;;, ;2ooA
I
~~-fi
City Clerk .
g/erclnegEA200806
2-37