EXT-2023-001 Action Letter CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014(408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: e Connolly,Assistant Director of Community Development
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pared by: Gian Paolo Martire, Senior Planner
Date: Decemberf, 2023
Subject: Extension request, EXT-2023-001, for a period of two years, for a previously approved
Development Permit(DP-2022-001), Architectural and Site Approval(ASA-2022-002),
Vesting Tentative Map (TM-2022-003), and Tree Removal Permit (TR-2022-026) to
allow the construction of a new development (Marina) that will include
approximately 41,268 sq. ft. of commercial space and 206 residential condominium
units at 10145 N.De Anza Blvd and 10118 Bandley Dr.
Chapter 19.12 of the Cupertino Municipal Code allows for administrative
approval of time extensions of expiring permits and other entitlements. The
Director reports his decision to the City Council and Planning Commission in
time to allow an appeal of the decision within fourteen calendar days.
DISCUSSION
The applicants, Greg Endom representing Tectonic Builders Corp., are requesting a two-year
extension of a previously approved Development Permit (DP-2022-001), Architectural and Site
Approval (ASA-2022-002), Vesting Tentative Map (TM-2022-003), and Tree Removal Permit
(TR-2022-026) to allow the construction of a new development (Marina) that will include
approximately 41,268 sq. ft. of commercial space and 206 residential condominium units at
10145 N. De Anza Blvd and 10118 Bandley Dr. The City Council approved the project on
December 6, 2022 and the approvals are valid until December 6, 2024 (see Attachment 1). In
accordance with Cupertino Municipal Code Chapter 19.12.030, the two-year extension is the
maximum period that can be granted.
The developer submitted an extension request letter dated September 6, 2023 (Attachment 2).
The letter lists several reasons why an extension is needed for the development entitlement.The
primary obstacle in building out the development are interest rates available from lenders.
Attached to the letter is a recent article form the Mercury News entitled "Apartment
construction in Silicon Valley grinds to a halt amid cost crunch," published on August 28, 2023.
This article cites high interest rates, coupled with labor and materials cost as major factors in the
slow down in multi-family housing development in the San Francisco Bay Area. Extending the
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development's entitlements will allow for the project to be fulfilled in a potentially more
forgiving lending market.
A condition of approval requires the property owner to file for building permits by December 6,
2026. If the building permit expires for any reason, the development approvals will become null
and void.
ACTION
The Director of Community Development approves the extension application,file no. EXT-
2023-001 with the following conditions of approval:
1. EXTENSION OF EXPIRATION PERIOD AND BUILDING PERMITS)
The expiration period of file no.(s) DP-2022-001, ASA-2022-002, TM-2022-003, and TR-2022-
026 are hereby extended for a period of two years, expiring on December 6, 2026. Building
permits shall be filed prior to the expiration date or the development permit will become
null and void. In addition, if the building permits expire for any reason, the development
permit approval shall also become null and void.
2. CONDITIONS OF APPROVAL
All conditions of permit approvals for DP-2022-001, ASA-2022-002, TM-2022-003, and TR-
2022-026 shall remain in effect through the extension period.
Y
3. 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,
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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.
4. 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.
This approval of the extension request is effective December 18,2023. The 14-calendar-day
appeal period will expire on January 5, 2024.
Attachments:
1. City Council Resolutions Nos. 22-146, 447,448, 449
2. Extension Request Letter from property owner dated September 6, 2023