DIR-2021-009 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: Benjamin Fu, Director of Community Development
Prepared by: Gian Paolo Martire, Senior Planner, Planning Division
Date: June 29, 2021
Subject: Director's Minor Modification, DIR-2021-009, to revise the underground
garage layout of the Westport Cupertino development project to a limit the
footprint to under Building 1 and add additional subterranean level located
at 21710 Stevens Creek Boulevard, APN 326-27-043.
Chapter 19.164 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 an appeal of the decision
within 14-calendar days.
BACKGROUND
On August 19,2020,the Westport Cupertino Development was approved by City Council
to allow construction of a mixed-use development on an 8.1 gross-acre site currently
occupied by the Oaks Shopping Center. The primary components of the project are listed
below.
• Two residential/commercial buildings:
o Building 1 is a six-story building with 131 senior licensed assisted living
units, 27 memory care licensed assisted living residences, and 17,600
square-feet of ground-floor retail/commercial space.
o Building 2 is a six-story building with 48 BMR senior independent living
units and 2,400 square feet of ground-floor retail/commercial.
• 70 single-family residential townhouse and 18 single-family residential rowhouse
condominiums.
• One-level,below-ground garage with 191 parking spaces.
• 44,945 square feet of Residential Common Open Space
• 2,915 square feet of Commercial Common Open Space
• 386 onsite and offsite tree replacements, for the 73 protected development trees
proposed to be removed and/or relocated.
• A vesting tentative map that would divide the property into two separate parcels.
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Since approval of the project, the property owner has requested to consolidate all the
underground parking under Building 1. The purpose of the request is to decouple the
construction schedule of Building 2, the affordable senior apartment building, from
Building 1. This is needed to allow Building 2 to meet the permitting and construction
timelines required by the State of California tax credit program, the primary financing
mechanism of this portion of the development.
DISCUSSION PARKING GARAGE COMPARISON vnawx
The applicant, Mark Tersini of �
KT Urban, is requesting
consolidation of the °'
underground parking garage
under Building 1. Figure 1
illustrates the comparison =
--------
between the entitled and the
proposed consolidated
underground garage. The
consolidation will add a second
underground parking level as Figure 1 Underground Parking Garage Comparison
demonstrated in Figure 2. No
reduction in the parking count is proposed and would continue to house the required
resident, employee, and retail parking of both Buildings 1 and 2.
As stated earlier, the consolidating of the garage under Building 1 is needed to allow
Building 2 to meet the permitting and construction timelines required by the State of
California tax credit program. It is estimated that the reduced construction schedule is
approximately three months.Besides the time savings,eliminating underground parking
for Building 2 simplifies the construction by modifying the foundation to a "slab-on-
grade" foundation, versus a shored, excavated, and connected basement level. This
would create additional savings in construction costs and overhead of the affordable
senior units.
The new garage level will be shallower than the entitled level under Building 2 as it does
not require additional depth to accommodate for landscaping, sidewalks, and utilities
above the top of the garage. The proposed design would result in a modest decrease in
grading and corresponding soil export/hauling impacts than identified in the previously
certified Westport Mixed-Use Project Draft and Final EIR (EIR). There are no other
proposed changes to the approved project, including but not limited to: uses, unit
configuration and location, building envelope or height, landscaping, or number of
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parking spaces. Cupertino Municipal Code Chapter 19.12 allows the Director of
Community Development to review and approve minor changes to approved projects.
Entitled Building 1 Section Proposed Building 1 Section
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Figure 2 Comparison of Building 1 Sections
The EIR identified 69,000 cubic yards of soil to be exported from the site during grading
and preparation phases to accommodate the subterranean parking garage. In
comparison, the proposed parking modification would result in approximately 61,582
cubic yards of soil to be exported from the site. As such, the proposed parking
modification would result in less impacts associated with certain construction activities,
including grading, soil transport, particulate (fugitive dust) emissions from grading
activities, and off-site soil hauling, than those analyzed in the previously certified
Westport Mixed-Use EIR.
There are no changes to the project layout, design, land use or operational functions that
would trigger physical impacts to the environment not otherwise analyzed in the
previously certified EIR.
ACTION
An Initial Study and Final EIR had been approved for the project, identifying mitigation
measures to reduce the potentially significant environmental impacts of the project to less
than significant levels. The proposed changes to the project would not have any new or
substantially more severe significant environmental impacts.
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The Director of Community Development deems the modification minor and approves
the project with the following conditions of approval:
1. APPROVED EXHIBITS
Approval is based on exhibits titled "Enhanced Senior and Family Living Project:
Westport Cupertino", prepared by C2K Architecture, Inc., consisting of 7 sheets
labeled G202A- G204, A200, A201, and Exhibit 1 dated May 10, 2021, except as may
be amended by the conditions contained in this report.
2. ACCURACY OF THE PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations,building setbacks,property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
require additional review. The ground floor of Building 1 identified as 'Dining shall
be considered retail in accordance with Heart of the City Exception (EXC-2019-03).
3. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval through past approvals shall remain in effect unless
superseded by or in conflict with subsequent conditions of approval and as
specifically amended by this Director's Minor Modification approval.
4. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a. Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be kept
damp at all times, or shall be treated with non-toxic stabilizers or dust palliatives.
b. All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c. All visible mud or dirt track-out onto adjacent public roads shall be removed using
wet power vacuum street sweepers at least once per day. The use of dry power
sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
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f. Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCR]). Clear signage shall be provided for construction workers at
all access points.
g. All construction equipment shall be maintained and properly tuned in accordance
with manufacturer's specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h. Post a publicly visible sign with the telephone number and person to contact at the
Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District's phone number shall also be
visible to ensure compliance with applicable regulations.
i. The applicant shall incorporate the City's construction best management practices
into the building permit plan set.
5. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
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 the 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.
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g. The applicant shall comply with the above grading and construction hours and
noise limit requirements unless otherwise indicated.
6. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting 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.
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
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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 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 Director's approval is effective until June 29, 2023. The 14-calendar-day appeal
period will expire on July 13, 2021.
Enclosures:
Attachment A: Plan set
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