CC 12-07-2021 Item No. 30 Westport Development - Supplemental Staff Report to Council Inquiries_Desk ItemCITY COUNCIL STAFF REPORT
December 7, 2021
Subject
Agenda Item #30 - Westport
RESPONSE TO COUNCIL INQUIRIES
Discussion
This is a supplemental report provided in response to Council inquiries. Inquiries have
been consolidated and simplified for clarity.
Council Inquiries and Responses
1.Where are the 2nd Building (48 BMR Units) parking spaces (40) located on the
original plan? Was there an underground garage under Building 2 on the original
plan?
Response: There was an underground garage under Building 2. However, the
developer (KT Urban) in coordination with the operator (The Pacific Companies)
of the BMR building (Building 2) applied for a Directors Minor Modification (DIR‐
2021‐009) to consolidate all the parking for the senior housing portion of the
project under Building 1. This was approved on June 29, 2021. The reason for this
was 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.
At the time of approval, there was no reduction in the required parking as had
been approved in the original application. This approval was sent to the City
Council and Planning Commission on July 1, 2021 for review.
2. Is most Retail Space in Building 1 facing Stevens Creek Blvd, now that the 8,000‐
square‐foot restaurant is not public retail space?
Response: Yes, 100% of Building 1 frontage facing Stevens Creek Boulevard is
proposed to be dedicated to retail. This was done by converting some of the prior
lobby space (approximately 400 square feet) to be dedicated to retail/dining.
3. How about access from the Senior Center/Memorial Park across Mary Ave into the
Westport community?
Response: Access from the senior center to Westport is to be improved with the
upgrade to the existing pedestrian warning device at the mid‐block crossing on
Mary Avenue to rectangular rapid flashing beacons (RRFB).
4. How much of the parking will be dedicated to staff and retail customers, as well
as those who require handicap spaces? How will it be maintained?
Response: The proposed staff members for Building 2 are included in the resident
count as they would be living onsite. The staff report includes a breakdown of the
parking demand for Buildings 1 and 2. This information can be found in Figure 3.
The handicap spaces that are required for Building 2 are all surface level parking
spaces on Parcel C, which Building 2 is the sole occupant. All building permits will
be reviewed by City staff to ensure conformance.
The Reciprocal Easement, Operating and Cost Allocation Agreement (REA) is the
required agreement between the three separate parcels onsite ensuring
maintenance of the common areas and reciprocal access between residents,
employees, and the public. The City Attorney’s Office reviews this document to
confirm compliance with the approved project.
5. Will the 5.5‐foot widening of Building 1 reduce the Common Open Space below
the Heart of the City Specific Plan standard?
Response: The amount of common open space required per the Heart of the City
Specific Plan is 38,850 square feet (Proposed 259 units x 150 square feet). The
amount of common open space that is proposed is 44,945 square feet. The current
proposal is 47,780 square feet.
6. A table showing all unit sizes, number of bedrooms, number of each, and type
(BMR, SR. market rate, Memory Care, and Townhouses/Rowhouses, along with
Density Bonus Units number and types, and what building they are in.
Response: The staff report provides the following table to demonstrate the
average sizes of the units within the entitled Building 1 & 2, and the proposed
revisions.
The average size of the 35 memory care rooms, 18 Townhouses and 70 Rowhouses
are below:
Unit Type Location Average Size/Size
Range
Number of
Bedrooms
35 Memory
Care Rooms
Building 1 433 Square feet Four – Two Beds
29 – One Beds
18 Townhouses
Parcel A (Western Portion of
the Development)
2,227 square feet –
2,688 square feet Three Bedrooms
70 Rowhouses
Parcel A (Western Portion of
the Development)
2,357 square feet –
2,998 square feet
Consistent with the original application, the specific 22 Density Bonus units aren’t
called out on the plan set although the application had considered the added
density as within Building 1. The units would therefore be contemplated within
the proposed Building 1 unit count.
7. Please add the Concurrent Approval Conditions files from item 3, PDF 455 of the
Agenda Packet.
Response: Please find the attached Council Action Letter containing the signed
Resolutions of Approval, dated August 27, 2020, as well as the CC Resolution No.
21‐081 for TM‐2021‐002.
Table 1 Unit Comparability Between Buildings 1 &2
Approved Building 1 (131 Units) Studio One Bedroom Two Bedroom
Average Unit Size 537.7 s.f. 691.3 s.f. 1,087 s.f.
Unit Count 26 74 31
Mix Percentage 20% 56% 24%
Proposed Building 1 (123 Units) Studio One Bedroom Two Bedroom
Average Unit Size 530 s.f. 710 s.f. 1,110 s.f.
Unit Count 12 75 36
Mix Percentage 10% 61% 29%
Building 2 (48 Units) Studio One Bedroom Two Bedroom
Average Unit Size 518.6 s.f. 615.7 s.f. 843 s.f.
Unit Count 9 28 11
Mix Percentage 19% 58% 23%
_____________________________________
Prepared by: Benjamin Fu, Director of Community Development
Reviewed and Approved by: Greg Larson, Interim City Manager
Attachments
A ‐ Council Action Letter containing the signed Resolutions of Approval, dated August
27, 2020
B‐ CC Resolution No. 21‐081 for TM‐2021‐002.
August 27, 2020
Subject: Consider approving a development proposal to demolish a 71,250 square
foot retail center (The Oaks), remove and replace 74 protected trees, and construct
a mixed-used development consisting of 267 housing units (88
Rowhouse/Townhouses, 179 senior apartments of which 131 are senior licensed
assisted living units and 48 are affordable or below market rate (“BMR”) senior
independent living units), 27 memory care licensed assisted living residences
(“memory care residences”), and 20,000 square feet of commercial space. The
applicant is requesting a Heart of the City Exception for retail frontage along
Stevens Creek Boulevard. The applicant is also requesting a density bonus,
including associated density bonus parking reduction and density bonus waivers
for height, slope line setback, and dispersion of BMR housing units, as well as an
incentive/concession for the consolidation of BMR housing units in a single, senior
building. City approvals would be certification of the Final Environmental Impact
Report, Development Permit (including findings regarding density bonus,
parking reduction, concession, and waivers), Architectural and Site Approval
Permit, Tree Removal Permit, Use Permit, Heart of the City Exception, and Vesting
Tentative Map; (Application No(s): DP-2018-05, ASA-2018-05, TM-2018-03, TR-
2018-22, U-2019-03, EXC-2019-03, EA-2018-04; Applicant(s): KT Urban (Mark
Tersini); Location: 21267 Stevens Creek Boulevard; APN #326-27-042, -043.
At its August 18, 2020 regular meeting, the Cupertino City Council took the
following action:
Adopted the following resolutions as amended:
a. Resolution No. 20-105 certifying the Final Environmental Impact Report and
adopting the mitigation measures and Mitigation and Monitoring Reporting
Program (EA-2018-04); and
b. Resolution No. 20-106 approving the Development Permit (DP-2018-05); EA-
2018-04, DP-2018-05, Westport Cupertino August 18, 2020 with the following
amendments:
Page 2
1. ASA-2018-05, U-2019-03, 21267 Stevens Creek Boulevard TM-2018-03, EXC-
2019-03, TR-2018-22.
Finding 4(b) was amended to expand the density bonus law concession to
allow the applicant to consolidate all BMR units in Building 2 instead of
dispersing them throughout Building 1 and the Townhouse/Rowhouse
portion of the project.
2. Finding 4(g) was amended to deny the requested waiver for the BMR unit
dispersion requirement and to note the City Council would have preferred
to grant a concession, rather than a waiver, for the height and slope line
setback requirements.
3. Condition 2 of Section III (“Accuracy of Project Plans”) was amended to
clarify that any misrepresentation on the Vesting Tentative Map related to
the statement that the Townhouses/Rowhouses would be for-sale could
result in invalidation of the permit and additional review. (This change was
made in the “Accuracy of Project Plans” condition in each of the approved
resolutions.)
4. Condition 6 of Section III (“Development Allocation”) was amended to
state that, by requesting only one density bonus concession, the applicant
waived any future claim to a second concession.
5. Condition 11 of Section III (“Concurrent Development of BMR and Market-
Rate Housing”) was amended to delete subsection 11(b).
6. Condition 3 of Section IV (“Pedestrian and Bicycle Improvements”) was
amended to require the applicant to work with staff to design and build
bicycle access through the property.
c. Resolution No. 20-107 approving the Architectural and Site Approval Permit
(ASA2018-05); and
d. Resolution No. 20-108 approving the Use Permit (U-2019-03); and
e. Resolution No. 20-109 approving the Vesting Tentative Map (TM-2018-03); and
f. Resolution No. 20-110 approving the Heart of the City Exception (EXC-2019-03)
with the following amendments:
1. Condition 2 of Section III (“Accuracy of Project Plans”) was amended to
clarify that any misrepresentation on the Vesting Tentative Map related
to the statement that the Townhouses/Rowhouses would be for-sale could
result in invalidation of the permit and additional review. (This change
was made in the “Accuracy of Project Plans” condition in each of the
approved resolutions.)
2. Condition 6 of Section III (“Public Accessibility to Retail Space”) was
added to require that all retail space be open to the public for
consumption of goods and services; and
g. Resolution No. 20-111 approving the Tree Removal Permit (TR-2018-22).
Page 2
The amended motion as carried unanimously.
Also included are the resolutions that Council adopted at the meeting.
Any interested person, including the applicant, prior to seeking judicial review of
any adjudicatory decision of the City Council, must first file a petition for
reconsideration with the city clerk within ten days after the date of mailing of this
notice. Any petition filed must comply with Municipal Code §2.08.096. Due to the
deadline falling on a weekend and a federal holiday, the last day to file a petition
for reconsideration is Tuesday, September 8, 2020.
Sincerely,
Lauren Sapudar
Deputy City Clerk
cc: Community Development
City Attorney
RESOLUTION NO. 20‐105
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
CERTIFYING AN ENVIRONMENTAL IMPACT REPORT AND ADOPTING
MITIGATION MEASURES AND A MITIGATION MONITORING AND
REPORTING PROGRAM FOR THE DEVELOPMENT OF A MIXED‐USE
DEVELOPMENT CONSISTING OF 267 HOUSING UNITS, 27 MEMORY CARE
LICENSED ASSISTED LIVING RESIDENCES (“MEMORY CARE RESIDENCES”),
20,000 SQUARE FEET OF RETAIL SPACE, AND ~44,900 SQUARE FEET OF
COMMON OPEN SPACE ON AN 8‐ACRE PARCEL LOCATED AT 21267 STEVENS
CREEK BOULEVARD (APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: EA‐2018‐04
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: ENVIRONMENTAL REVIEW PROCESS
WHEREAS, the City of Cupertino received an application on May 17, 2018 for a
Development Permit (including findings regarding density bonus and waivers),
Architectural and Site Approval Permit, Tentative Map, and Tree Removal Permit, to
allow the construction of a mixed‐use development consisting of 242 housing units,
20,000 square feet of retail space, and ~35,000 square feet of common open space on an 8‐
acre parcel and associated environmental review (“Westport Mixed‐Use Project” or
“Project”); and
WHEREAS, the City of Cupertino received an application on April 29, 2019 from the
Project applicant for a Use Permit, and Heart of the City Exception for the Project; and
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code Section 21000 et seq.) (“CEQA”) and the State CEQA
Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) (ʺCEQA
Guidelinesʺ), the City prepared an Initial Study and Environmental Impact Report (State
Clearinghouse No. 2019070377) (“EIR”) for the Project, which consists of the November
2019 Public Review Draft Project Environmental Impact Report (the “Draft EIR”), the
Resolution No. 20‐105
Page 2
April 2020 Response to Comments Document, and the May 2020 Response to Comments
on the Final EIR memorandum (together, the “Final EIR”); and
WHEREAS, on July 11, 2019 the City issued a Notice of Preparation of a Draft EIR for the
Westport Mixed‐Use Project; and
WHEREAS, on July 11, 2019 the Draft Initial Study for the project was distributed to
responsible agencies and the public for review and comment for a 30‐day period that
ended August 9, 2019; and
WHEREAS, on July 18, 2019 a public EIR Scoping Meeting was held to receive comments
regarding the scope and content of the EIR; and
WHEREAS, on November 6, 2019 the City issued a Notice of Availability (NOA) of the
Draft EIR for the Westport Mixed‐Use Project; and
WHEREAS, on November 6, 2019 the Draft EIR for the project was distributed to
responsible agencies and the public for review and comment for a 45‐day period that
ended August 9, 2019; and
WHEREAS, the Draft EIR concluded that significant environmental effects on Air
Quality, Biological Resources, Cultural Resources, Geology and Soils, Greenhouse Gas
Emissions, Noise, Tribal Cultural Resources, and Utilities and Service Systems would be
avoided or reduced to less‐than‐significant levels by mitigation measures (“MM”)
identified in the EIR; and
WHEREAS, on March 17, 2020 the applicant requested that an Increased Senior Housing
Alternative be considered and analyzed in the EIR; and
WHEREAS, the Increased Senior Housing Alternative was analyzed in the Final EIR as
a feasible alternative, and the analysis concluded that the Increased Senior Housing
Alternative would not result in any new or substantially more severe significant impacts
than were analyzed in the Draft EIR; therefore, recirculation of the Draft EIR was not
required; and
WHEREAS, on April 16, 2020, the City of Cupertino’s Environmental Review Committee
held a duly noticed public hearing to receive public testimony and reviewed and
considered the information contained in the Draft EIR and Response to Comments, and
voted 5‐0 to recommend that the City Council certify the EIR for Project; and
WHEREAS, on April 23, 2020, the applicant formally requested that the City consider the
Increased Senior Housing Alternative analyzed in the Final EIR, which is a proposed
mixed‐use development consisting of 267 housing units, 27 memory care licensed
assisted living residences, 20,000 square feet of retail space, and approximately 44,900
Resolution No. 20‐105
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square feet of common open space on an 8.1‐acre parcel with 7.9 net developable acres,
to be the proposed Project; and
WHEREAS, the proposed Project (Increased Senior Enhanced Alternative) was referred
to in the May 12, 2020 Planning Commission staff report as the “Senior Enhanced
Alternative;” and
WHEREAS, text revisions made after publication of the Draft EIR, which are found in the
May, 2020 Westport Mixed‐Use Project Final EIR, merely clarify, amplify or make
insignificant modifications to the EIR, and recirculation of the EIR is not required.
WHEREAS, on May 12, 2020, the Planning Commission held a duly noticed public
hearing to receive staff’s presentation and public testimony, and to consider the
information contained in the EIR along with all staff reports, other pertinent documents,
and all written and oral statements received prior to and at the public hearing, and
recommended on a 5‐0 vote, based on substantial evidence in the record, that the City
Council certify the EIR, adopt and incorporate into the Project and implement as
conditions of approval all of the mitigation measures for the project that are identified in
the EIR, and adopt the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented (Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) recommended for approval by the Planning Commission on May 12, 2020 ,
which include relocating nine Below Market Rate (“BMR”) units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two‐bedroom units in addition to studios and one‐bedroom units;
and
Resolution No. 20‐105
Page 4
WHEREAS, because these proposed revisions to the Project affect building height and
dispersion of BMR units, the Revised Senior Enhanced Project was reviewed by the
Planning Commission on July 14, 2020 for recommendation to the City Council; and
WHEREAS, the Planning Commission independently reviewed and considered the EIR
together with the comments and the responses to those comments prior to taking action
on the Revised Senior Enhanced Project; and
WHEREAS, the comments received by the Planning Commission do not require major
revisions to the EIR due to new or substantially more severe significant effects on the
environment; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, the City Council has independently reviewed and considered the EIR
together with the comments and the responses to those comments prior to taking action
on the Project; and
WHEREAS, the comments received by the City Council do not require major revisions to
the EIR due to new or substantially more severe significant effects on the environment;
and
WHEREAS, the revisions to the Project after the May 12, 2020 Planning Commission
meeting do not require major revisions to the EIR due to new or substantially more severe
significant effects on the environment because the number of residential units and square
footage of retail use have not changed, and the amount of ground level open space has
increased; and
WHEREAS, on August 18, 2020 prior to taking action on the Project, the City Council
held a duly noticed public hearing to receive staff’s presentation and public testimony,
and to further consider the information contained in the EIR, along with all staff reports,
other pertinent documents, and all written and oral statements received prior to and at
the public hearing.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the EIR, comments on the EIR, maps, facts, exhibits,
testimony, staff reports, public comments, and other evidence submitted in this matter,
the City Council does:
1. Certify that the EIR for the Project has been completed in compliance with CEQA and
reflects the independent judgment and analysis of the City.
2. Find that the text revisions to the EIR merely clarify, amplify or make insignificant
Resolution No. 20‐105
Page 5
modifications to the EIR, and the revisions to the Project do not require major
revisions to the EIR due to new or substantially more severe significant effects on the
environment; therefore, recirculation of the EIR is not required.
3. Adopt the Findings for the Project, attached hereto as “Exhibit EA‐1,” and
incorporated herein by reference
4. Adopt and make required conditions of approval of the Project all of the mitigation
measures identified in the EIR that are within the responsibility and jurisdiction of the
City.
a. AIR QUALITY
Mitigation Measure AQ‐2: Prior to any grading activities, the applicant shall
prepare a Construction Management Plan to be reviewed and approved by the
Director of Public Works/City Engineer. The Construction Management Plan shall
include the Bay Area Air Quality Management District (BAAQMD) Basic
Construction Mitigation Measures listed below to minimize construction‐related
emissions. The project applicant shall require the construction contractor to
implement the approved Construction Management Plan. The BAAQMD Basic
Construction Mitigation Measures are:
All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded
areas, and unpaved access roads) shall be watered two times per day.
All haul trucks transporting soil, sand, or other loose material off‐site shall
be covered.
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.
All vehicle speeds on unpaved roads shall be limited to 15 mph.
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.
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.
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.
Resolution No. 20‐105
Page 6
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 BAAQMD phone
number shall also be visible to ensure compliance with applicable
regulations.
Vegetative ground cover shall be planted in disturbed areas as soon as
possible and watered appropriately until vegetation is established.
All exposed surfaces shall be watered at a frequency adequate to maintain
minimum soil moisture of 12 percent. Moisture content can be verified by
lab samples or moisture probe.
Mitigation Measure AQ‐4: Implement Mitigation Measure AQ‐2.
b. BIOLOGICAL RESOURCES
Mitigation Measure BIO‐1: Nests of raptors and other birds shall be protected
when in active use, as required by the federal Migratory Bird Treaty Act and the
California Fish and Game Code. The construction contractor shall indicate the
following on all construction plans, if construction activities and any required tree
removal occur during the breeding season (February 1 and August 31).
Preconstruction surveys shall:
Be conducted by a qualified biologist prior to tree removal or grading,
demolition, or construction activities. Note that preconstruction surveys are
not required for tree removal or construction, grading, or demolition
activities outside the nesting period.
Be conducted no more than 14 days prior to the start of tree removal or
construction.
Be repeated at 14‐day intervals until construction has been initiated in the
area after which surveys can be stopped.
Document locations of active nests containing viable eggs or young birds.
Protective measures for active nests containing viable eggs or young birds
shall be implemented under the direction of the qualified biologist until the
nests no longer contain eggs or young birds. Protective measures shall
include:
Establishment of clearly delineated exclusion zones (i.e., demarcated by
identifiable fencing, such as orange construction fencing or equivalent)
around each nest location as determined by the qualified biologist, taking
into account the species of birds nesting, their tolerance for disturbance and
Resolution No. 20‐105
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proximity to existing development. In general, exclusion zones shall be a
minimum of 300 feet for raptors and 75 feet for passerines and other birds.
Monitoring active nests within an exclusion zone on a weekly basis
throughout the nesting season to identify signs of disturbance and confirm
nesting status.
An increase in the radius of an exclusion zone by the qualified biologist if
project activities are determined to be adversely affecting the nesting birds.
Exclusion zones may be reduced by the qualified biologist only in
consultation with California Department of Fish and Wildlife.
The protection measures shall remain in effect until the young have left the
nest and are foraging independently or the nest is no longer active.
Mitigation Measure BIO‐2: The proposed project shall comply with the City of
Cupertino’s Protected Trees Ordinance (Cupertino Municipal Code Section 14.18).
A tree removal permit shall be obtained for the removal of any “protected tree,”
and replacement plantings shall be provided as approved by the City. If permitted,
an appropriate in‐lieu tree replacement fee may be paid to the City of Cupertino’s
Tree Fund as compensation for “protected trees” removed by the proposed
project, where sufficient land area is not available on‐site for adequate replacement
and when approved by the City.
In addition, a Tree Protection and Replacement Program (Program) shall be
developed by a Certified Arborist prior to project approval and implemented
during project construction to provide for adequate protection and replacement of
“protected trees,” as defined by the City’s Municipal Code. The Program shall
include the following provisions:
Adequate measures shall be defined to protect all trees to be preserved.
These measures should include the establishment of a tree protection zone
(TPZ) around each tree to be preserved, in which no disturbance is
permitted. For design purposes, the TPZ shall be located at the dripline of
the tree or 10 feet, whichever is greater. If necessary, the TPZ for
construction‐tolerant species (i.e., coast live oaks) may be reduced to 7 feet.
Temporary construction fencing shall be installed at the perimeter of TPZs
prior to demolition, grubbing, or grading. Fences shall be 6‐foot chain link
or equivalent, as approved by the City of Cupertino. Fences shall remain
until all construction is completed. Fences shall not be relocated or removed
without permission from the consulting arborist.
No grading, excavation, or storage of materials shall be permitted within
TPZs. Construction trailers, traffic, and storage areas shall remain outside
Resolution No. 20‐105
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fenced areas at all times. No excess soil, chemicals, debris, equipment, or
other materials shall be dumped or stored within he TPZ.
Underground services including utilities, sub‐drains, water or sewer shall
be routed around the TPZ. Where encroachment cannot be avoided, special
construction techniques such as hand digging or tunneling under roots
shall be employed where necessary to minimize root injury. Irrigation
systems must be designed so that no trenching will occur within the TPZ.
Construction activities associated with structures and underground
features to be removed within the TPZ shall use the smallest equipment and
operate from outside the TPZ. The consulting arborist shall be on‐site
during all operations within the TPZ to monitor demolition activity.
All grading, improvement plans, and construction plans shall clearly
indicate trees proposed to be removed, altered, or otherwise affected by
development construction. The tree information on grading and
development plans should indicate the number, size, species, assigned tree
number, and location of the dripline of all trees that are to be
retained/preserved. All plans shall also include tree preservation guidelines
prepared by the consulting arborist.
The demolition contractor shall meet with the consulting arborist before
beginning work to discuss work procedures and tree protection. Prior to
beginning work, the contractor(s) working in the vicinity of trees to be
preserved shall be required to meet with the consulting arborist at the site
to review all work procedures, access routes, storage areas, and tree
protection measures.
All contractors shall conduct operations in a manner that will prevent
damage to trees to be preserved. Any grading, construction, demolition or
other work that is expected to encounter tree roots shall be monitored by
the consulting arborist. If injury should occur to any tree during
construction, it should be evaluated as soon as possible by the consulting
arborist so that appropriate treatments can be applied.
Any plan changes affecting trees shall be reviewed by the consulting
arborist with regard to tree impacts. These include, but are not limited to,
site improvement plans, utility and drainage plans, grading plans,
landscape and irrigation plans, and demolition plans.
Trees to be preserved may require pruning to provide construction
clearance. All pruning shall be completed by a State of California Licensed
Tree Contractor (C61/D49). All pruning shall be done by Certified Arborist
or Certified Tree Worker in accordance with the 2002 Best Management
Practices for Pruning published by the International Society of
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Arboriculture, and adhere to the most recent editions of the American
National Standard for Tree Care Operations (Section Z133.1) and Pruning
(Section A300).
Any root pruning required for construction purposes shall receive the prior
approval of and be supervised by the consulting arborist.
Any demolition or excavation, such as grading, pad preparation,
excavation, and trenching, within the dripline or other work that is
expected to encounter tree roots should be approved and monitored by the
consulting arborist. Any root pruning required for construction purposes
shall receive prior approval of, and by supervised by, the consulting
arborist. Roots shall be cut by manually digging a trench and cutting
exposed roots with a sharp saw.
Tree(s) to be removed that have branches extending into the canopy of
tree(s) to remain must be removed by a qualified arborist and not by
construction contractors. The qualified arborist shall remove the tree in a
manner that causes no damage to the tree(s) and understory to remain. Tree
stumps shall be ground 12 inches below ground surface.
All tree work shall comply with the Migratory Bird Treaty Act as well as
California Fish and Game Code Sections 3503 through 3513 to not disturb
nesting birds. To the extent feasible, tree pruning, and removal shall be
scheduled outside of the breeding season. Breeding bird surveys shall be
conducted prior to tree work. Qualified biologists shall be involved in
establishing work buffers for active nests. (see Mitigation Measure BIO‐1)
The vertical and horizontal locations of all the trees identified for
preservation shall be established and plotted on all plans. These plans shall
be forwards to the consulting arborist for review and comment.
Foundations, footings, and pavements on expansive soils near trees shall be
designed to withstand differential displacement to protect the soil
surrounding the tree roots.
Any liming within 50 feet of any tree shall be prohibited, as lime is toxic to
tree roots. Any herbicides placed under paving materials shall be safe for
use under trees and labeled for that use.
Brush from pruning and trees removal operations shall be chipped and
spread beneath the trees within the TPZ. Mulch shall be between 2 inches
and 4 inches in depth and kept at a minimum of 3 feet from the base of the
trees.
All recommendations for tree preservation made by the applicant’s
consulting arborist shall be followed.
Resolution No. 20‐105
Page 10
Mitigation Measure BIO‐3: Implement Mitigation Measures BIO‐1 and BIO‐2.
c. CULTURAL RESOURCES
Mitigation Measure CULT‐1: If any prehistoric or historic subsurface cultural
resources are discovered during ground‐disturbing (including grading,
demolition and/or construction) activities:
All work within 50 feet of the resources shall be halted, the City shall be notified
and a qualified archaeologist shall be consulted. The contractor shall cooperate
in the recovery of the materials. Work may proceed on other parts of the project
site while mitigation for tribal cultural resources, historical resources or unique
archaeological resources is being carried out.
The qualified archaeologist shall prepare a report for the evaluation of the
resource to the California Register of Historical Places and the City Building
Department. The report shall also include appropriate recommendations
regarding the significance of the find and appropriate mitigations as follows:
o If the resource is a non‐tribal resource, the archaeologist shall assess the
significance of the find according to CEQA Guidelines Section 15064.5.
o If the resource is a tribal resource – whether historic or prehistoric – the
consulting archaeologist shall consult with the appropriate tribe(s) to
evaluate the significance of the resource and to recommend appropriate
and feasible avoidance, testing, preservation or mitigation measures, in
light of factors such as the significance of the find, proposed project design,
costs, and other considerations. If avoidance is infeasible, other appropriate
measures (e.g., data recovery) may be implemented.
All significant non‐tribal cultural materials recovered shall be, as necessary,
and at the discretion of the consulting archaeologist, subject to scientific
analysis, professional museum curation, and documentation according to
current professional standards.
Mitigation Measure CULT‐3: Implement Mitigation Measure CULT‐1.
d. GEOLOGY AND SOILS
Mitigation Measure GEO‐1: The construction contractor shall incorporate the
following in all grading, demolition, and construction plans:
In the event that fossils or fossil‐bearing deposits are discovered during
grading, demolition, or building, excavations within 50 feet of the find shall be
temporarily halted or diverted.
The contractor shall notify the City of Cupertino Building Department and a
City‐approved qualified paleontologist to examine the discovery.
Resolution No. 20‐105
Page 11
The paleontologist shall document the discovery as needed, in accordance with
Society of Vertebrate Paleontology standards (Society of Vertebrate
Paleontology 1995), evaluate the potential resource, and assess the significance
of the finding under the criteria set forth in CEQA Guidelines Section 15064.5.
The paleontologist shall notify the appropriate agencies to determine
procedures that would be followed before construction is allowed to resume at
the location of the find.
If the project applicant determines that avoidance is not feasible, the
paleontologist shall prepare an excavation plan for mitigating the effect of the
project based on the qualities that make the resource important. The excavation
plan shall be submitted to the City for review and approval prior to
implementation.
e. NOISE
Mitigation Measure NOISE‐1: Prior to Grading Permit issuance or the start of
demolition activities, the project applicant shall demonstrate, to the satisfaction of
the City of Cupertino Public Works Director and/or Community Development
Director, that the proposed project complies with the following:
Pursuant to Cupertino Municipal Code (CMC) Section 10.48.053 the
construction activities shall be limited to daytime hours as defined in CMC
Section 10.48.010 (i.e., daytime hours are from 7:00 a.m. to 8:00 p.m. on
weekdays).
At least 90 days prior to the start of construction activities, all offsite businesses
and residents within 300 feet of the project site shall be notified of the planned
construction activities. The notification shall include a brief description of the
proposed project, the activities that would occur, the hours when construction
would occur, and the construction period’s overall duration. The notification
should include the telephone numbers of the City’s and contractor’s authorized
representatives that are assigned to respond in the event of a noise or vibration
complaint.
At least 10 days prior to the start of construction activities, a sign shall be
posted at the entrance(s) to the job site, clearly visible to the public, which
includes permitted construction days and hours, as well as the telephone
numbers of the City’s and contractor’s authorized representatives that are
assigned to respond in the event of a noise or vibration complaint. If the
authorized contractor’s representative receives a complaint, he/she shall
investigate, take appropriate corrective action, and report the action to the City.
Resolution No. 20‐105
Page 12
During the entire active construction period, equipment and trucks used for
project construction will utilize the best available noise control techniques (e.g.,
improved mufflers, equipment re‐design, use of intake silencers, ducts, engine
enclosures, and acoustically attenuating shields or shrouds), wherever feasible.
During the entire active construction period, stationary noise sources shall be
located as far from sensitive receptors as possible, and they shall be muffled
and enclosed within temporary sheds, or insulation barriers or other measures
shall be incorporated to the extent feasible.
Haul routes shall be selected to avoid the greatest amount of sensitive use
areas.
Signs will be posted at the job site entrance(s), within the on‐site construction
zones, and along queueing lanes (if any) to reinforce the prohibition of
unnecessary engine idling. All other equipment will be turned off if not in use
for more than 5 minutes.
During the entire active construction period and to the extent feasible, the use
of noise producing signals, including horns, whistles, alarms, and bells will be
for safety warning purposes only. The construction manager will use smart
back‐up alarms, which automatically adjust the alarm level based on the
background noise level or switch off back‐up alarms and replace with human
spotters in compliance with all safety requirements and laws.
f. UTILITIES AND SERVICES MITIGATION MEASURE
Mitigation Measure UTIL‐1: No building permits shall be issued by the City for
the proposed Westport Mixed‐Use Project that would result in exceeding the
permitted peak wet weather flow capacity of 13.8 mgd through the Santa Clara
sanitary sewer system. The project applicant shall demonstrate, to the satisfaction
of the City of Cupertino and Cupertino Sanitary District (CSD), that the proposed
project would not exceed the peak wet weather flow capacity of the Santa Clara
sanitary sewer system by implementing one or more of the following methods:
1. Reduce inflow and infiltration in the CSD system to reduce peak wet weather
flows; or
2. Increase on‐site water reuse, such as increased grey water use, or reduce water
consumption of the fixtures used within the proposed project, or other
methods that are measurable and reduce sewer generation rates to acceptable
levels, to the satisfaction of the CSD.
The proposed project’s estimated wastewater generation shall be calculated using
the generation rates used by the CSD in the Flow Modeling Analysis for the Homestead
Flume Outfall to the City of Santa Clara, prepared by Mark Thomas & Co. Inc., dated
December 6, 2019, unless alternative (i.e., lower) generation rates achieved by the
Resolution No. 20‐105
Page 13
proposed project are substantiated by the project applicant based on evidence to
the satisfaction of the CSD.
If the prior agreement between CSD and the City of Santa Clara that currently
limits the permitted peak wet weather flow capacity of 13.8 mgd through the Santa
Clara sanitary sewer system were to be updated to increase the permitted peak
wet weather flow sufficiently to accommodate, this would also change the impacts
of the project to less than significant. If this were to occur prior to the City’s
approval of building permits, then Mitigation Measure UTIL‐1 would no longer
be required to be implemented.
6. Adopt the Mitigation Monitoring and Reporting Program for the Project, as
amended, attached hereto as “Exhibit EA‐2,” and incorporated herein by reference, which
includes all of the mitigation measures identified in the Final EIR.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
EXHIBIT EA‐1
CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS FOR
THE WESTPORT MIXED‐USE PROJECT
INTRODUCTION
The City of Cupertino (City), as lead agency under the California Environmental Quality
Act (CEQA), Public Resources Code Section 21000 et seq., has prepared the Final
Environmental Impact Report for The Westport Mixed‐Use Project (the “Project”) (State
Clearinghouse No. 2019070377) (the “Final EIR” or “EIR”). The Final EIR is a project‐level
EIR pursuant to Section 15168 of the State CEQA Guidelines.1 The Final EIR consists of
the November 2019 Public Review Draft Project Environmental Impact Report (the “Draft
EIR”); the April 2020 Response to Comments Document; and the May 2020 Response to
Comments on the Final EIR memorandum,2 which provides responses to comments
made at the April 15, 2020 Environmental Review Committee meeting and contains a
typographical correction to the Response to Comments Document.
In determining to approve the Project, which is described in more detail in Section II,
below, the City makes and adopts the following findings of fact and adopts and makes
conditions of project approval the all of the mitigation measures identified in the Final
EIR, all based on substantial evidence in the whole record of this proceeding
(administrative record). Pursuant to Section 15090(a) of the State CEQA Guidelines, the
Final EIR was presented to the City Council, the City Council reviewed and considered
the information contained in the Final EIR prior to making the findings in Sections II
through XII, below, and the City Council determined that the Final EIR reflects the
independent judgment of the City. The conclusions presented in these findings are based
on the Final EIR and other evidence in the administrative record.
PROJECT DESCRIPTION (“Revised Senior Enhanced Project”)
Project Described in EIR. As described in Draft EIR, the project as originally proposed
involved the construction and operation of a mixed‐use project on an 8.1‐acre project site
assigned Assessor’s Parcel Numbers (APNs) 326‐27‐042 and 326‐27‐043. The site is
1 The State CEQA Guidelines are found at California Code of Regulations, Title 14, Section
15000 et seq.
2 PlaceWorks, Response to Comments on the Westport Mixed-Use Project Final Environmental
Impact Report (EIR) (May 5, 2020).
identified as Priority Housing Element Site A3 (The Oaks Shopping Center) in the City of
Cupertino General Plan (Community Vision 2015‐2040). The project as originally
proposed included 242 housing units consisting of 88 rowhouse and townhouse units
(attached homes) in 16 buildings, and two mixed‐use (residential and retail buildings).
One of the mixed‐use buildings (Building 1) would have contained 115 market‐rate
condominiums, and the other (Building 2) would have contained 39 BMR senior units.
The project as originally proposed also included 20,000 square feet of ground floor retail
uses, below and at‐grade parking, and associated landscape and hardscape areas.
As explained below, the Final EIR analyzed an additional alternative, the Increased
Senior Housing Alternative,3 which the applicant requested the City to consider to be the
proposed project. Like the project as originally proposed, the Increased Senior Housing
Alternative would demolish the existing buildings on the site and construct 18 new
buildings; however, the mix of units would change. While the proposed number and
configuration of the 88 rowhouse and townhouse units would not change, in the Senior
Housing Alternative Building 1 would have 131 senior licensed assisted living units, 27
memory care licensed assisted living residences, and Building 2 would have 48 BMR
senior independent living units. The following aspects of the project as originally
proposed would remain the same: 20,000 square feet of retail space, below and at‐grade
parking, and associated landscape and hardscape areas. Like the project as originally
proposed, the proposed retail component would be located on the ground level of the
two mixed‐use residential buildings; Residential‐Retail Building 1 would have 17,600
square feet of retail space located at the corner of Stevens Creek Boulevard and Mary
Avenue; Residential‐Retail Building 2 would have 2,400 square feet of retail space on the
ground level fronting Stevens Creek Boulevard. The proposed project would include one
access point off of Stevens Creek Boulevard and three access points off of Mary Avenue.
The below‐grade parking would be located under Retail‐Residential Building 1, and
would be accessed from the central access point on Mary Avenue. Off‐site improvements
include the installation of a Class IV separated bikeway and a signal control to be
activated by bicyclists and pedestrians for the westbound right‐turn movement from the
northbound SR‐85 on‐ramp, as well as a bus stop on the section of Stevens Creek
Boulevard west of Mary Avenue and east of the SR‐85 northbound ramp.
Senior Enhanced Alternative. The EIR analyzed five alternatives, including, the original
project described in Chapter 3 of the Draft EIR as the proposed project (“Original
Project”), the No Project Alternative, No Retail Development Alternative, and Reduced
Retail Development Alternative, which are described in Chapter 5 of the Draft EIR. and
3 Also referred to in the May 12, 2020 Planning Commission agenda documents as the
Senior Enhanced Alternative.
the Increased Senior Housing Project, which is the proposed Project, and is described in
Chapter 3 of the Response to Comments Document, which the applicant submitted for
consideration by the City in February 2020 as a Senior Enhanced Alternative. This
alternative was evaluated as a feasible alternative in the Responses to Comments volume
of the Final EIR as the Increased Senior Housing Alternative. On April 22, 2020, the
applicant requested that Increased Senior Housing Alternative be considered the
proposed Project.
On May 12, 2020, the Planning Commission recommended certification of the Final EIR
and approval of the Increased Senior Housing Alternative, which is referred to in the May
12, 2020 staff report as the Senior Enhanced Alternative.
Revised Senior Enhanced Project. On June 4, 2020, the applicant submitted and requested
the City to consider revisions to the Increased Senior Housing Alternative (the “Revised
Senior Enhanced Project”), as updated on June 25 and 26, 2020, which include relocating
nine BMR units from Building 1 to an additional top story on Building 2, decreasing the
height of Building 1 by 12.25 feet, moving the nine BMR units from Building 1 to a new
top story on Building 2 and increasing the height of Building 2 by 0.75 feet, altering the
unit mix in Buildings 1 and 2 to provide additional space for terraces on the tops of those
buildings, and changing the unit mix in Buildings 2 to include two‐bedroom units in
addition to studios and one‐bedroom units, increasing the amount of ground level
common open space by 294 square feet, and adding eight parking spaces.
The Revised Senior Enhanced Project is the proposed Project for purposes of these
Findings.
The project objectives for the proposed Project, listed below, remain the same.
Project Objectives
The project objectives are as follows:
• Redevelop an existing retail center on Mary Avenue and Stevens Creek
Boulevard with desirable amenities and housing.
• Meet the City’s Regional Housing Needs Allocation (RHNA) for 2014‐2022.
• Enhance the vibrancy of Cupertino’s Heart of the City as a key mixed‐use,
commercial corridor by providing a pedestrian‐friendly community that includes
housing, open space and greenery, and neighborhood retail.
• Provide senior housing in close proximity to the Cupertino Senior Citizen
Center.
• Create a prominent gateway development that incorporates quality architectural
design and materials, open space, and artwork to announce entry into
Cupertino’s Heart of the City.
• Create a mixed‐use development that places residential and commercial uses in
close proximity to each other, and close to transit options.
• Help the City to achieve its affordable housing goals through the inclusion of
senior housing units within a residential and mixed‐use development project.
ENVIRONMENTAL REVIEW PROCESS
Environmental Impact Report
On July 11, 2019, the City circulated a Notice of Preparation (NOP) of the Draft EIR to the
Office of Planning and Research (OPR) State Clearinghouse and interested agencies and
the public. The NOP was circulated for comment by responsible and trustee agencies and
the public for a total of 30 days, from July 11, 2019 through August 12, 2019, during which
time the City held a public scoping meeting on July 18, 2019. Comments on the NOP were
received by the City and considered during preparation of the Draft EIR.
The Draft EIR was made available for review by the public and interested parties,
agencies, and organizations for a 46‐day comment period starting on November 6, 2019
and ending December 20, 2019. The Draft EIR was distributed to local, regional and State
agencies, and the public. Copies of the Draft EIR in paper or electronic format were
available to the public for purchase or review at Cupertino City Hall. The Draft EIR was
also available for review at the Cupertino Library at 10800 Torre Avenue in the City and
an electronic version of the Draft EIR and all appendices were posted on a website the
City created for the project at www.cupertino.org/westport. The City continues to make
these documents available on this website. The public was also invited to submit written
comments on the Draft EIR to the City of Cupertino Community Development
Department by mail or e‐mail to Gian Martire, Senior Planner at GianM@cupertino.org.
Notice of availability of the Draft EIR was made in several ways. The City sent a letter
announcing the availability of the Draft EIR and inviting attendance at the Draft EIR
comment meeting to all postal addresses within a 3,000‐foot radius of the project site. In
addition, in accordance with CEQA, the City posted the Notice of Availability (NOA) in
the newspaper. The City also sent emails providing notice of the Draft EIR’s availability
to all persons who had indicated an interest in the Project.
The City held an EIR Comment Meeting during the comment period on December 11,
2019. At that meeting, the City solicited comments on the adequacy of the Draft EIR.
The 46‐day comment period on the Draft EIR ended on December 20, 2019 at 5:00 p.m.
Agencies, organizations, and members of the public submitted written comments on the
Draft EIR. The Responses to Comments Document, was issued for public review and sent
to public agencies who had commented on the Draft EIR on April 7, 2020. Chapter 5 of
the Response to Comments Document provides responses to the comments received
during the comment period on the Draft EIR. Additional comments received after the
close of the public comment period that were provided at the Environmental Review
Committee meeting have been addressed in memoranda to the City.
On April 15, 2020, the Environmental Review Committee determined that the EIR was
the appropriate document.
On May 12, 2020, the Planning Commission held a public hearing on the Final EIR and
Senior Enhanced Alternative and took public comments. At this hearing, The Planning
Commission recommended that the City Council certify the Final EIR.
On July 14, 2020, the Planning Commission held a public hearing on the Revised Senior
Enhanced Project and recommended on a 3‐2 vote that the City Council deny the project
in accordance with Resolution No. 6908.
FINDINGS
The findings set forth below (the “Findings”) are made and adopted by the Cupertino
City Council as the City’s findings under CEQA and the State CEQA Guidelines relating
to the Project. The Findings provide the written analysis and conclusions of this City
Council regarding the Project’s environmental impacts, mitigation measures, alternatives
to the Project.
These findings summarize the environmental determinations of the Final EIR with regard
to project impacts before and after mitigation, and do not attempt to repeat the full
analysis of each environmental impact contained in the Final EIR. Instead, these findings
provide a summary description of and basis for each impact conclusion identified in the
Final EIR, describe the applicable mitigation measures identified in the Final EIR, and
state the City’s findings and rationale about the significance of each impact following the
adoption of mitigation measures. A full explanation of these environmental findings and
conclusions can be found in the Final EIR, and these findings hereby incorporate by
reference the discussion and analysis in the Final EIR supporting the Final EIR’s
determinations regarding mitigation measures and the Project’s impacts.
When evaluating cumulative impacts, CEQA allows the use of either a list of past,
present, and probable future projects, including projects outside the control of the lead
agency, or a summary of projections in an adopted planning document. The cumulative
impacts analysis in the Final EIR uses the projections approach and takes into account
growth from the Project within the Cupertino city boundary and Sphere of Influence
(SOI), in combination with impacts from the list of projects reasonably foreseeable
projects in the city, when considered with the effects of the proposed project, may result
in cumulative effects.
In adopting mitigation measures, below, the City intends to adopt each of the mitigation
measures identified in the Final EIR. Accordingly, in the event a mitigation measure
identified in the Final EIR has been inadvertently omitted from these findings, such
mitigation measure is hereby adopted and made a condition of approval of the Project in
the findings below by reference. In addition, in the event the language of a mitigation
measure set forth below fails to accurately reflect the mitigation measure in the Final EIR
due to a clerical error, the language of the mitigation measure as set forth in the Final EIR
shall control unless the language of the mitigation measure has been specifically and
expressly modified by these findings.
Section V, below, provide brief descriptions of the impacts that the Final EIR identified
as less than significant with adopted mitigation. These descriptions also reproduce the
full text of the mitigation measures identified in the Final EIR for each significant
impact.
SIGNIFICANT ADVERSE IMPACTS IDENTIFIED IN THE FINAL EIR THAT ARE
REDUCED TO A LESS‐THAN‐SIGNIFICANT LEVEL BY MITIGATION
MEASURES ADOPTED AND MADE CONDITIONS OF APPROVAL OF
THE PROJECT
The Final EIR identifies the following significant impacts associated with the Project. It is
hereby determined that the impacts addressed by these mitigation measures will be
mitigated to a less than significant level or avoided by adopting and incorporating these
mitigation measures as conditions into the Project. Public Resources Code § 21081(a)(1).
As explained in Section VIII, below, the findings in this Section V are based on the Final
EIR, the discussion and analysis in which is hereby incorporated in full by this reference.
The Final EIR identifies the following significant impacts associated with the Project. It is
hereby determined that the impacts addressed by these mitigation measures will be
mitigated to a less than significant level or avoided by adopting and incorporating these
mitigation measures conditions into the Project. Public Resources Code § 21081(a)(1). As
explained in Section VIII, below, the findings in this Section V are based on the Final EIR,
the discussion and analysis in which is hereby incorporated in full by this reference.
Impact AQ‐2: Uncontrolled fugitive dust (PM10 and PM2.5) could expose the
areas that are downwind of construction sites to air pollution from
construction activities without the implementation of BAAQMD’s best
management practices.
The Final EIR finds that the Project could result in air pollutants traveling downwind
from the Project to off‐site sensitive receptors site due to construction activities. Such
particulate matter without the implementation of fugitive dust control best management
practices would be considered a potentially significant impact.
Implementation of Mitigation Measure AQ‐2 set forth below, which is hereby adopted
made a condition of approval of the Project, would reduce this impact to a less‐than‐
significant level.
Mitigation Measure AQ‐2:
Prior to any grading activities, the applicant shall prepare a Construction Management Plan to
be reviewed and approved by the Director of Public Works/City Engineer. The Construction
Management Plan shall include the Bay Area Air Quality Management District (BAAQMD)
Basic Construction Mitigation Measures listed below to minimize construction‐related emissions.
The project applicant shall require the construction contractor to implement the approved
Construction Management Plan. The BAAQMD Basic Construction Mitigation Measures are:
All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved
access roads) shall be watered two times per day.
All haul trucks transporting soil, sand, or other loose material off‐site shall be covered.
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.
All vehicle speeds on unpaved roads shall be limited to 15 mph.
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.
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.
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.
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 BAAQMD phone number shall also be visible to ensure compliance with applicable
regulations.
Vegetative ground cover shall be planted in disturbed areas as soon as possible and watered
appropriately until vegetation is established.
All exposed surfaces shall be watered at a frequency adequate to maintain minimum soil
moisture of 12 percent. Moisture content can be verified by lab samples or moisture probe.
Impact AQ‐4: Implementation of the Project would cumulatively contribute to
air quality impacts in the San Francisco Bay Area Air Basin.
The Final EIR finds that the project would contribute to air quality impacts in the San
Francisco Bay Area Air Basin when considered in combination with cumulative
development in the region. Without the implementation of construction and operation
best management practices, the Project would be considered to have a potentially
significant impact.
Implementation of the Mitigation Measure AQ‐2 set forth above, which is hereby adopted
and made a condition of approval of the Project, would reduce this impact to a less‐than‐
significant level.
Mitigation Measure AQ‐4:
Implement Mitigation Measure AQ‐2.
Impact BIO‐1: Tree removal and demolition activities during site clearance
could destroy active nests, and/or otherwise interfere with nesting of
birds protected under federal and State law.
The Final EIR finds that some special‐status bird could utilize on‐site trees for nesting.
More common birds protected under Migratory Bird Treaty Act (MBTA) may nest in
trees and other landscaping on the Project site. Given the remote potential for occurrence
of nesting birds at the Project site and possibility that nests could be inadvertently
destroyed, or nests abandoned as a result of construction activities, this would be
considered a potentially significant impact.
Implementation of Mitigation Measure BIO‐1 set forth below, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure BIO‐1:
Nests of raptors and other birds shall be protected when in active use, as required by the federal
Migratory Bird Treaty Act and the California Fish and Game Code. The construction contractor
shall indicate the following on all construction plans, if construction activities and any required
tree removal occur during the breeding season (February 1 and August 31). Preconstruction
surveys shall:
Be conducted by a qualified biologist prior to tree removal or grading, demolition, or
construction activities. Note that preconstruction surveys are not required for tree removal
or construction, grading, or demolition activities outside the nesting period.
Be conducted no more than 14 days prior to the start of tree removal or construction.
Be repeated at 14‐day intervals until construction has been initiated in the area after which
surveys can be stopped.
Document locations of active nests containing viable eggs or young birds.
Protective measures for active nests containing viable eggs or young birds shall be implemented
under the direction of the qualified biologist until the nests no longer contain eggs or young birds.
Protective measures shall include:
Establishment of clearly delineated exclusion zones (i.e., demarcated by identifiable fencing,
such as orange construction fencing or equivalent) around each nest location as determined
by the qualified biologist, taking into account the species of birds nesting, their tolerance for
disturbance and proximity to existing development. In general, exclusion zones shall be a
minimum of 300 feet for raptors and 75 feet for passerines and other birds.
Monitoring active nests within an exclusion zone on a weekly basis throughout the nesting
season to identify signs of disturbance and confirm nesting status.
An increase in the radius of an exclusion zone by the qualified biologist if project activities
are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced
by the qualified biologist only in consultation with California Department of Fish and
Wildlife.
The protection measures shall remain in effect until the young have left the nest and are
foraging independently or the nest is no longer active.
Impact BIO‐2: Proposed development would result in removal of trees
protected under City ordinance.
The Final EIR finds that the Project would result in the removal of trees and could
therefore be out of compliance with the City’s Protected Trees Ordinance if those trees
happen to be protected. Given the potential for removal of a protected tree, the Project
would be considered to have a potentially significant impact.
Implementation of Mitigation Measure BIO‐2 set forth below, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure BIO‐2:
The proposed project shall comply with the City of Cupertino’s Protected Trees Ordinance
(Cupertino Municipal Code Section 14.18). A tree removal permit shall be obtained for the removal
of any “protected tree,” and replacement plantings shall be provided as approved by the City. If
permitted, an appropriate in‐lieu tree replacement fee may be paid to the City of Cupertino’s Tree
Fund as compensation for “protected trees” removed by the proposed project, where sufficient land
area is not available on‐site for adequate replacement and when approved by the City.
In addition, a Tree Protection and Replacement Program (Program) shall be developed by a
Certified Arborist prior to project approval and implemented during project construction to
provide for adequate protection and replacement of “protected trees,” as defined by the City’s
Municipal Code. The Program shall include the following provisions:
Adequate measures shall be defined to protect all trees to be preserved. These measures should
include the establishment of a tree protection zone (TPZ) around each tree to be preserved,
in which no disturbance is permitted. For design purposes, the TPZ shall be located at the
dripline of the tree or 10 feet, whichever is greater. If necessary, the TPZ for construction‐
tolerant species (i.e., coast live oaks) may be reduced to 7 feet.
Temporary construction fencing shall be installed at the perimeter of TPZs prior to
demolition, grubbing, or grading. Fences shall be 6‐foot chain link or equivalent, as approved
by the City of Cupertino. Fences shall remain until all construction is completed. Fences
shall not be relocated or removed without permission from the consulting arborist.
No grading, excavation, or storage of materials shall be permitted within TPZs.
Construction trailers, traffic, and storage areas shall remain outside fenced areas at all times.
No excess soil, chemicals, debris, equipment, or other materials shall be dumped or stored
within he TPZ.
Underground services including utilities, sub‐drains, water or sewer shall be routed around
the TPZ. Where encroachment cannot be avoided, special construction techniques such as
hand digging or tunneling under roots shall be employed where necessary to minimize root
injury. Irrigation systems must be designed so that no trenching will occur within the TPZ.
Construction activities associated with structures and underground features to be removed
within the TPZ shall use the smallest equipment and operate from outside the TPZ. The
consulting arborist shall be on‐site during all operations within the TPZ to monitor
demolition activity.
All grading, improvement plans, and construction plans shall clearly indicate trees proposed
to be removed, altered, or otherwise affected by development construction. The tree
information on grading and development plans should indicate the number, size, species,
assigned tree number, and location of the dripline of all trees that are to be retained/preserved.
All plans shall also include tree preservation guidelines prepared by the consulting arborist.
The demolition contractor shall meet with the consulting arborist before beginning work to
discuss work procedures and tree protection. Prior to beginning work, the contractor(s)
working in the vicinity of trees to be preserved shall be required to meet with the consulting
arborist at the site to review all work procedures, access routes, storage areas, and tree
protection measures.
All contractors shall conduct operations in a manner that will prevent damage to trees to be
preserved. Any grading, construction, demolition or other work that is expected to encounter
tree roots shall be monitored by the consulting arborist. If injury should occur to any tree
during construction, it should be evaluated as soon as possible by the consulting arborist so
that appropriate treatments can be applied.
Any plan changes affecting trees shall be reviewed by the consulting arborist with regard to
tree impacts. These include, but are not limited to, site improvement plans, utility and
drainage plans, grading plans, landscape and irrigation plans, and demolition plans.
Trees to be preserved may require pruning to provide construction clearance. All pruning
shall be completed by a State of California Licensed Tree Contractor (C61/D49). All pruning
shall be done by Certified Arborist or Certified Tree Worker in accordance with the 2002 Best
Management Practices for Pruning published by the International Society of Arboriculture,
and adhere to the most recent editions of the American National Standard for Tree Care
Operations (Section Z133.1) and Pruning (Section A300).
Any root pruning required for construction purposes shall receive the prior approval of and
be supervised by the consulting arborist.
Any demolition or excavation, such as grading, pad preparation, excavation, and trenching,
within the dripline or other work that is expected to encounter tree roots should be approved
and monitored by the consulting arborist. Any root pruning required for construction
purposes shall receive prior approval of, and by supervised by, the consulting arborist. Roots
shall be cut by manually digging a trench and cutting exposed roots with a sharp saw.
Tree(s) to be removed that have branches extending into the canopy of tree(s) to remain must
be removed by a qualified arborist and not by construction contractors. The qualified arborist
shall remove the tree in a manner that causes no damage to the tree(s) and understory to
remain. Tree stumps shall be ground 12 inches below ground surface.
All tree work shall comply with the Migratory Bird Treaty Act as well as California Fish and
Game Code Sections 3503 through 3513 to not disturb nesting birds. To the extent feasible,
tree pruning, and removal shall be scheduled outside of the breeding season. Breeding bird
surveys shall be conducted prior to tree work. Qualified biologists shall be involved in
establishing work buffers for active nests. (see Mitigation Measure BIO‐1)
The vertical and horizontal locations of all the trees identified for preservation shall be
established and plotted on all plans. These plans shall be forwards to the consulting arborist
for review and comment.
Foundations, footings, and pavements on expansive soils near trees shall be designed to
withstand differential displacement to protect the soil surrounding the tree roots.
Any liming within 50 feet of any tree shall be prohibited, as lime is toxic to tree roots. Any
herbicides placed under paving materials shall be safe for use under trees and labeled for that
use.
Brush from pruning and trees removal operations shall be chipped and spread beneath the
trees within the TPZ. Mulch shall be between 2 inches and 4 inches in depth and kept at a
minimum of 3 feet from the base of the trees.
All recommendations for tree preservation made by the applicant’s consulting arborist shall
be followed.
Impact BIO‐3: The proposed Project, in combination with past, present, and
reasonably foreseeable projects, would result in significant cumulative
impacts with respect to biological resources.
The Final EIR finds that the Project could contribute to biological impacts when
considered in combination with cumulative development in the region. Without the
implementation of preservation best management practices, the Project would be
considered to have a potentially significant impact.
With implementation of Mitigation Measures BIO‐1 and BIO‐2, set forth and
incorporated above, the Project would not make a cumulatively considerable
contribution to this cumulative impact, and the impact would be less than significant.
Mitigation Measure BIO‐3:
Implement Mitigation Measure BIO‐1 and BIO‐2.
Impact CULT‐1: Construction of the proposed project would have the potential
to cause a significant impact to an unknown archaeological resource
pursuant to CEQA Guidelines Section 15064.5.
The Final EIR finds that the Project would have the potential to unearth a previously
unrecorded archaeological resource. In the event that an unknown archaeological
resource is unearthed, the handling of the archaeological resource could result in a loss
of cultural significance, which would be considered a potentially significant impact.
Implementation of Mitigation Measure CULT‐1 set forth below, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure CULT‐1:
If any prehistoric or historic subsurface cultural resources are discovered during ground‐
disturbing (including grading, demolition and/or construction) activities:
All work within 50 feet of the resources shall be halted, the City shall be notified, and a
qualified archaeologist shall be consulted. The contractor shall cooperate in the recovery of
the materials. Work may proceed on other parts of the project site while mitigation for tribal
cultural resources, historical resources or unique archaeological resources is being carried
out.
The qualified archaeologist shall prepare a report for the evaluation of the resource to the
California Register of Historical Places and the City Building Department. The report shall
also include appropriate recommendations regarding the significance of the find and
appropriate mitigations as follows:
If the resource is a non‐tribal resource, the archaeologist shall assess the significance of the
find according to CEQA Guidelines Section 15064.5.
If the resource is a tribal resource – whether historic or prehistoric – the consulting
archaeologist shall consult with the appropriate tribe(s) to evaluate the significance of the
resource and to recommend appropriate and feasible avoidance, testing, preservation or
mitigation measures, in light of factors such as the significance of the find, proposed project
design, costs, and other considerations. If avoidance is infeasible, other appropriate measures
(e.g., data recovery) may be implemented.
All significant non‐tribal cultural materials recovered shall be, as necessary, and at the
discretion of the consulting archaeologist, subject to scientific analysis, professional museum
curation, and documentation according to current professional standards.
Impact CULT‐3: Construction of the proposed project would have the potential
to cause a significant impact to an unknown tribal cultural resource as
defined in Public Resources Code 21074.
The Final EIR finds that the Project would have the potential to unearth a previously
unrecorded tribal cultural resource. In the event that an unknown tribal cultural resource
is unearthed, the handling of the resource could result in a loss of cultural significance,
which would be considered a potentially significant impact.
Implementation of Mitigation Measure CULT‐1 set forth above, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure CULT‐2:
Implement Mitigation Measure CULT‐1.
Impact CULT‐1: The proposed Project, in combination with past, present, and
reasonably foreseeable projects, would result in cumulative impacts
with respect to cultural resources.
The Final EIR finds that the Project would contribute to cultural resource impacts when
considered in combination with cumulative development in the region. Without the
implementation of construction best management practices, the Project would be
considered to have a potentially significant impact.
Implementation of Mitigation Measure CULT‐1 set forth above, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure CULT‐4:
Implement Mitigation Measure CULT‐1.
Impact GEO‐1: Construction of the proposed project would have the potential
to directly or indirectly affect an unknown unique paleontological
resource.
The Final EIR finds that the Project would have the potential to unearth a previously
unrecorded paleontological resource. In the event that an unknown paleontological
resource is unearthed, the handling of the paleontological resource could result in a loss
of the resource’s significance, which would be considered a potentially significant impact.
Implementation of Mitigation Measure GEO‐1 set forth below, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure GEO‐1:
The construction contractor shall incorporate the following in all grading, demolition, and
construction plans:
In the event that fossils or fossil‐bearing deposits are discovered during grading, demolition,
or building, excavations within 50 feet of the find shall be temporarily halted or diverted.
The contractor shall notify the City of Cupertino Building Department and a City‐approved
qualified paleontologist to examine the discovery.
The paleontologist shall document the discovery as needed, in accordance with Society of
Vertebrate Paleontology standards (Society of Vertebrate Paleontology 1995), evaluate the
potential resource, and assess the significance of the finding under the criteria set forth in
CEQA Guidelines Section 15064.5.
The paleontologist shall notify the appropriate agencies to determine procedures that would
be followed before construction is allowed to resume at the location of the find.
If the project applicant determines that avoidance is not feasible, the paleontologist shall
prepare an excavation plan for mitigating the effect of the proposed project based on the
qualities that make the resource important. The excavation plan shall be submitted to the
City for review and approval prior to implementation.
Impact GEO‐2: The proposed Project, in combination with past, present, and
reasonably foreseeable projects, would result in less than significant
cumulative impacts with respect to geology and soils.
The Final EIR finds that the Project would contribute to impacts to paleontological
resources when considered in combination with cumulative development in the region.
Without the implementation of construction best management practices, the Project
would be considered to have a potentially significant impact.
Implementation Measure GEO‐1, set forth above, which is hereby adopted and made a
condition of approval of the Project, would avoid or reduce this impact to a less‐than‐
significant level.
Mitigation Measure GEO‐2:
Implement Mitigation Measure GEO‐1.
Impact NOISE‐1: The proposed Project could generate a substantial temporary
increase in ambient noise levels in the vicinity of the proposed project
during the construction phase that could exceed the standards
established in the local noise ordinance.
The Final EIR finds that the Project could result in ambient noise levels to off‐site sensitive
receptors due to construction activities. Such an increase in ambient noise levels without
the implementation of best management practices would be considered a potentially
significant impact.
Implementation of Mitigation Measure NOISE‐1 set forth below, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure NOISE‐1:
Prior to Grading Permit issuance or the start of demolition activities, the project applicant shall
demonstrate, to the satisfaction of the City of Cupertino Public Works Director and/or Community
Development Director, that the proposed project complies with the following:
Pursuant to Cupertino Municipal Code (CMC) Section 10.48.053 the construction activities
shall be limited to daytime hours as defined in CMC Section 10.48.010 (i.e., daytime hours
are from 7:00 a.m. to 8:00 p.m. on weekdays).
At least 90 days prior to the start of construction activities, all offsite businesses and
residents within 300 feet of the project site shall be notified of the planned construction
activities. The notification shall include a brief description of the proposed project, the
activities that would occur, the hours when construction would occur, and the construction
period’s overall duration. The notification should include the telephone numbers of the City’s
and contractor’s authorized representatives that are assigned to respond in the event of a
noise or vibration complaint.
At least 10 days prior to the start of construction activities, a sign shall be posted at the
entrance(s) to the job site, clearly visible to the public, which includes permitted construction
days and hours, as well as the telephone numbers of the City’s and contractor’s authorized
representatives that are assigned to respond in the event of a noise or vibration complaint. If
the authorized contractor’s representative receives a complaint, he/she shall investigate, take
appropriate corrective action, and report the action to the City.
During the entire active construction period, equipment and trucks used for project
construction will utilize the best available noise control techniques (e.g., improved mufflers,
equipment re‐design, use of intake silencers, ducts, engine enclosures, and acoustically
attenuating shields or shrouds), wherever feasible.
During the entire active construction period, stationary noise sources shall be located as far
from sensitive receptors as possible, and they shall be muffled and enclosed within temporary
sheds, or insulation barriers or other measures shall be incorporated to the extent feasible.
Haul routes shall be selected to avoid the greatest amount of sensitive use areas.
Signs will be posted at the job site entrance(s), within the on‐site construction zones, and
along queueing lanes (if any) to reinforce the prohibition of unnecessary engine idling. All
other equipment will be turned off if not in use for more than 5 minutes.
During the entire active construction period and to the extent feasible, the use of noise
producing signals, including horns, whistles, alarms, and bells will be for safety warning
purposes only. The construction manager will use smart back‐up alarms, which
automatically adjust the alarm level based on the background noise level or switch off back‐
up alarms and replace with human spotters in compliance with all safety requirements and
laws.
Impact NOISE‐3: The proposed project, in combination with past, present, and
reasonably foreseeable projects, would not result in significant
cumulative impacts with respect to noise.
The Final EIR finds that the Project would contribute to noise impacts when considered
in combination with cumulative development in the region. Without the implementation
of construction noise level best management practices, the Project would be considered
to have a potentially significant impact.
Implementation of Mitigation Measure NOISE‐1 set forth above, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure NOISE‐3:
Implement Mitigation Measure NOISE‐1.
Impact UTIL‐1: Implementation of the proposed project may result in a
determination by the wastewater treatment provider, which serves or
may serve the proposed project, that it does not have adequate capacity
to serve the project’s projected demand in addition to the provider’s
existing commitments.
Buildout of the Project would have a significant impact if future projected demand
exceeds wastewater service capacity of the Santa Clara sanitary sewer system. Without
the implementation of best management practices, the Project would be considered to
have a potentially significant impact.
Implementation of Mitigation Measure UTIL‐1 set forth below, which is hereby adopted
and made a condition of approval of the Project, would avoid or reduce this impact to a
less‐than‐significant level.
Mitigation Measure UTIL‐1:
No building permits shall be issued by the City for the proposed Westport Mixed-Use Project that
would result in exceeding the permitted peak wet weather flow capacity of 13.8 mgd through the
Santa Clara sanitary sewer system. The project applicant shall demonstrate, to the satisfaction of
the City of Cupertino and Cupertino Sanitary District (CSD), that the proposed project would not
exceed the peak wet weather flow capacity of the Santa Clara sanitary sewer system by
implementing one or more of the following methods:
1) Reduce inflow and infiltration in the CSD system to reduce peak wet weather flows; or
2) Increase on-site water reuse, such as increased grey water use, or reduce water consumption
of the fixtures used within the proposed project, or other methods that are measurable and
reduce sewer generation rates to acceptable levels, to the satisfaction of the CSD.
The proposed project’s estimated wastewater generation shall be calculated using the generation
rates used by the CSD in the Flow Modeling Analysis for the Homestead Flume Outfall to the City
of Santa Clara, prepared by Mark Thomas & Co. Inc., dated December 6, 2019, unless alternative
(i.e., lower) generation rates achieved by the proposed project are substantiated by the project
applicant based on evidence to the satisfaction of the CSD. To calculate the peak wet weather flow
for a 10-year storm event, the average daily flow rate shall be multiplied by a factor of 2.95 as
required by CSD pursuant to their December 2019 flow modeling analysis.
If the prior agreement between CSD and the City of Santa Clara that currently limits the permitted
peak wet weather flow capacity of 13.8 mgd through the Santa Clara sanitary sewer system were
to be updated to increase the permitted peak wet weather flow sufficiently to accommodate, this
would also change the impacts of the project to less than significant. If this were to occur prior to
the City’s approval of building permits, then Mitigation Measure UTIL-1 would no longer be
required to be implemented.
Impact UTIL‐7: The proposed project, in combination with past, present, and
reasonably foreseeable projects, would not result in significant
cumulative impacts with respect to wastewater treatment.
The Final EIR finds that the Project would contribute to impacts to wastewater treatment
facilities when considered in combination with cumulative development in the region.
Without the implementation of sanitary wastewater best management practices, the
Project would be considered to have a potentially significant impact.
With implementation of Mitigation Measure UTIL‐1, set forth and incorporated above,
cumulative development combined with the Project would not exceed wastewater
treatment requirements. Therefore, the Project would not make a cumulatively
considerable contribution to this cumulative impact, and the impact would be less than
significant.
Mitigation Measure UTIL‐7:
Implement Mitigation Measure UTIL‐1.
GROWTH INDUCING IMPACTS
An EIR is required to discuss growth inducing impacts, which consist of the ways in
which the project could foster economic or population growth, or the construction of
additional housing, either directly or indirectly, in the surrounding environment. State
CEQA Guidelines § 15126.2(d); Public Resources Code § 21100(b)(5). Direct growth
inducement would result, for example, if a project involves the construction of substantial
new housing that would support increased population in a community or establishes
substantial new permanent employment opportunities. This additional population
could, in turn, increase demands for public utilities, public services, roads, and other
infrastructure. Indirect growth inducement would result if a project stimulates economic
activity that requires physical development or removes an obstacle to growth and
development (e.g., increasing infrastructure capacity that would enable new or
additional development). It must not be assumed that growth in any area is necessarily
beneficial, detrimental, or of little significance to the environment. State CEQA
Guidelines § 15126.2(d). Section 6.3 of the Draft EIR analyzes the growth inducing
impacts of the Project. As explained in Section VIII, below, the findings in this Section VI
are based on the Final EIR, the discussion and analysis in which is hereby incorporated
in full by this reference.
Implementation of the Project would directly induce population, employment and
economic growth by redeveloping the Oaks Shopping Center site. The project would
demolish the existing buildings on the site and construct 18 new buildings, that would
have 294 residential units and 20,000 square feet of retail space, as well as below and at‐
grade parking, and associated landscape and hardscape areas..
Development on the site would consist of infill, mixed‐use redevelopment on an
underutilized site that currently contains a one‐story shopping center and surface
parking. However, because the infrastructure needed to serve the proposed project is in
place, and new growth would be required to comply with the City’s General Plan, zoning
regulations, and standards for public services and utilities; secondary or indirect effects
associated with this growth do not represent a new significant environmental impact
which has not already been addressed in the individual resource chapters of this EIR.
ALTERNATIVES
The Final EIR analyzed five alternatives, examining the environmental impacts and
feasibility of each alternative, as well as the ability of the alternatives to meet project
objectives. The project objectives as presented in Chapter 3 (Project Description) and
Chapter 5 (Alternatives to the Proposed Project) of the Draft EIR are listed above in
Section II.A of these Findings; the potentially significant environmental effects of the
Project, including feasible mitigation measures identified to avoid these impacts, are
analyzed in Chapter 4 (Environmental Evaluation) of the Draft EIR; and the alternatives
are described in detail in Chapter 5 (Alternatives to the Proposed Project) of the Draft EIR
and Chapter 3 (Revisions to the Draft EIR) of the Response to Comments Document).
All of the alternative projects except for the No Project Alternative would provide a Bike
Path on the project site, public access easements on the northwest and southwest corners
of the project site to accommodate the bridge over SR‐85 connecting Mary Avenue to
Alhambra Avenue, and off‐site improvements including the installation of a Class IV
separated bikeway and a signal control to be activated by bicyclists and pedestrians for
the westbound right‐turn movement northbound SR‐85 on‐ ramp consistent with the
2016 Bicycle Transportation Plan, as well as a bus stop on the section of Stevens Creek
Boulevard west of Mary Avenue and east of the SR‐85 northbound ramp. Each alternative
would include one access point off of Stevens Creek Boulevard and three additional
access points off of Mary Avenue. Each alternative would demolish the existing buildings
and would retain some existing trees and plant approximately 400 additional trees. The
maximum heights of six stories tall (70 feet at the roofline) for Residential‐Retail Building
1 and five stories tall (55 feet at the roofline) for Residential‐Retail Building 2 would be
the same in each alternative.
Brief summaries of the alternatives are provided below. A brief discussion of the
Environmentally Superior Alternative follows the summaries of the alternatives. As
explained in Section VIII, below, the findings in this Section VI are based on the Final EIR,
the discussion and analysis in which is hereby incorporated in full by this reference.
The Original Project Alternative
The Original Project Alternative would construct 18 new buildings, that would have 242
residential units and 20,000 square feet of retail space, as well as below and at‐grade
parking, and associated landscape and hardscape areas. This alternative would be
developed with the 242 residential units, consisting of three rowhouse buildings (19
units), 13 townhouse buildings (69 units), Residential‐Retail Building 1 (115 units),
Residential‐Retail Building 2 (39 BMR senior housing units). This alternative has fewer
market‐rate units (203 units compared to 219 units), fewer senior units (39 units
compared to 179 units, plus 27 memory care licensed assisted living residences), and
fewer BMR units (39 compared to 48) than the proposed Project (Revised Senior
Enhanced Project).
This alternative would include 17,600 square feet of retail space in Residential‐Retail
Building 1 and 2,400 square feet of retail space on would have. Residential‐Retail Building
2. The below‐grade parking would be located under Retail‐Residential Building 1 and
accessed from the central access point on Mary Avenue.
The Original Project Alternative would meet all of the project objectives, including
redeveloping an existing retail and office complex with desirable amenities and housing;
helping the City meet the RHNA allocation for 2014‐2022; enhancing the vibrancy of
Cupertino’s Heart of the City as a key mixed‐use corridor by providing a pedestrian‐
friendly community that includes housing, open space and greenery, and neighborhood
retail; providing senior housing in close proximity to the Cupertino Senior Citizen Center;
creating a prominent gateway development that incorporates quality architectural design
and materials, open space, and artwork to announce entry into Cupertino’s Heart of the
City; creating a mixed‐use development that places residential and commercial uses in
close proximity to each other, and close to transit options; and helping the City to achieve
its affordable housing goals through the inclusion of senior housing units within a
residential and mixed‐use development project.
The Original Project Alternative would include fewer market‐rate units (203 units
compared to 219 units), fewer senior units (39 units compared to 179 units, plus 27
memory care licensed assisted living residences), and fewer BMR units (39 units
compared to 48 units) than the proposed Project (Revised Senior Enhanced Project).
Therefore, while the Original Project Alternative would meet all of the project objectives,
it would not provide as many senior housing units in close proximity to the Cupertino
Senior Center as the proposed Project (Revised Senior Enhanced Project).
For the foregoing reasons, the Original Project Alternative is hereby rejected as infeasible.
The No Project Alternative
CEQA requires evaluation of the “no project” alternative. State CEQA Guidelines §
15126.6(e). Consistent with State CEQA Guidelines section 15126.6(e)(3)(A), the No
Project Alternative assumes the proposed project would not be constructed, and the
project site would remain in its current condition. Thus, the proposed mixed‐use project
would not occur.
The No Project Alternative would not achieve any of the project objectives (see Section
II.A above for a list of objectives).
For the foregoing reasons, the No Project Alternative is hereby rejected as infeasible.
No Retail Development Alternative
The No Retail Development Alternative would not include any neighborhood‐serving
retail in Residential‐Retail Building 1 and Residential‐Retail Building 2. The subterranean
parking level would not be constructed. Rather, parking would be located on the ground
floor because there would be no retail component in Residential Building 1. This
alternative would be developed with the 242 residential units, consisting of three
rowhouse buildings (19 units), 13 townhouse buildings (69 units), Residential‐Retail
Building 1 (115 units), Residential‐Retail Building 2 (39 senior housing units). This
alternative has fewer market‐rate units (203 units compared to 219 units), fewer senior
units (39 units compared to 179 units plus 27 memory care licensed assisted living
residences) than the proposed Project (Revised Senior Enhanced Project).
The No Retail Development Alternative would meet most of the project objectives,
including redeveloping an existing site with housing, helping the City to meet RHNA
allocations for 2014‐2022, providing senior housing in close proximity to the Cupertino
Senior Center, creating a prominent gateway development at the entry to Cupertino’s
Heart of the City, and helping the City to achieve its affordable housing goals through
the inclusion of senior housing units.
The No Retail Development Alternative fails to meet project objectives associated with a
mixed‐use development. This alternative would not redevelop the project site with
desirable amenities in proximity to housing, enhance the vibrancy of Cupertino’s Heart
of the City as a key mixed‐use corridor by providing a pedestrian‐friendly community
that includes neighborhood retail, create a mixed‐use development that places residential
and commercial uses in close proximity to each other and transit options, or place
affordable senior housing in a mixed‐use development project. In addition, No Retail
Development Alternative would not provide as many market rate units (39 units
compared to 179 units plus 27 memory care licensed assisted living residences) or senior
units (39 units compared to 179 units) on the project site as the proposed Project (Revised
Senior Enhanced Project).
For the foregoing reasons, No Retail Development Alternative is hereby rejected as
infeasible.
Reduced Retail Development Alternative
The Reduced Retail Development Alternative would provide 50 percent less retail. No
subterranean parking would be constructed, because the reduced parking needs could
be accommodated on the first floor. This alternative would be developed with the 242
residential units, consisting of three rowhouse buildings (19 units), 13 townhouse
buildings (69 units), Residential‐Retail Building 1 (115 units), Residential‐Retail Building
2 (39 senior housing units). This alternative has fewer market‐rate units (203 units
compared to 219 units) and fewer senior units (39 units compared to 179 units plus 27
memory care licensed assisted living residences) than the proposed Project (Revised
Senior Enhanced Project).
Even though this alternative includes a 50 percent reduction in retail space, this
alternative would: redevelop an existing retail and office complex with desirable
amenities and housing; help the City meet the RHNA allocation for 2014‐2022; enhance
the vibrancy of Cupertino’s Heart of the City as a key mixed‐use corridor by providing a
pedestrian‐friendly community that includes housing, open space and greenery, and
neighborhood retail; provide senior housing in close proximity to the Cupertino Senior
Citizen Center; create a prominent gateway development that incorporates quality
architectural design and materials, open space, and artwork to announce entry into
Cupertino’s Heart of the City; create a mixed‐use development that places residential and
commercial uses in close proximity to each other, and close to transit options; and help
the City to achieve its affordable housing goals through the inclusion of senior housing
units within a residential and mixed‐use development project.
The Reduced Retail Development Alternative would meet all of the proposed project
objectives; however, it would not provide as many market rate units (203 units compared
to 219 units) or senior units on the project site as the proposed Project (Revised Senior
Enhanced Project) (39 units compared to 179 units plus 27 memory care licensed assisted
living residences).
For the foregoing reasons, Reduced Retail Alternative is hereby rejected as infeasible.
Environmentally Superior Alternative
In addition to the discussion and comparison of impacts of the proposed Project (Revised
Senior Enhanced Project) and the five Alternatives listed above, Section 15126.6(e)(2) of
the State CEQA Guidelines requires that an “environmentally superior” alternative be
selected and the reasons for such a selection be disclosed. The environmentally superior
alternative is the alternative that would be expected to create the least significant
environmental effects. Identification of the environmentally superior alternative is an
informational procedure and the alternative selected may not be the alternative that best
meets the goals or needs of Cupertino.
In the Final EIR, the alternatives to the proposed project are compared to the Original
Project. The impacts of the proposed Project ([NAME OF MRV OF PROJECT] would be
the same as the Increased Senior Housing Alternative because the revisions to the
Increased Housing Alternative, described above in the Project Description, do not involve
changes in the proposed Project’s (Revised Senior Enhanced Project) physical effects on
the environment. As shown in Table 5‐1, Comparison of Impacts from Project
Alternatives in Chapter 3, Revisions to the Proposed Project, of the Response to Comment
Document, the Reduced Retail Development Alternative would not result in any impacts
that are greater than the Original Project, and would reduce impacts related to cultural
resources, geology and soils, and utilities and services systems compared to the Original
Project because no excavation for the subterranean parking would be required. When
considering the new proposed Project (Revised Senior Enhanced Project), , this
conclusion would be the same because the proposed Project, like the Original Project and
the Increased Senior Housing Alternative, would include the subterranean parking
component.
As described in Chapter 3, Revisions to the Draft EIR, when compared to the Original
Project, the proposed Project (Revised Senior Enhanced Project), which is substantially
physically similar to the Increased Senior Housing, would have less vehicle miles
traveled (VMT) (2,663,868 total annual VMT compared to 2,352,587 total annual VMT –
or ‐ 7,298 total daily VMT compared to 6,445 total daily VMT) and would subsequently
result in fewer air quality, greenhouse gas (GHG), and noise emissions from automobiles,
which are the greatest sources of emissions. Water demand and wastewater generation,
and subsequent GHG emissions from these sources, would be greater under the proposed
Project (Revised Senior Enhanced Project) when compared to the Original Project because
senior housing (179 units compared to 39 units) creates a greater demand for water and
generates more wastewater than non‐senior housing.
All impacts under any of the alternatives would be less than significant or less than
significant with implementation of the mitigation measures identified in the Final EIR.
This is because the recommended mitigation measures would apply to all of the
alternatives. None of the alternatives would exceed any thresholds of significance in any
environmental category.
For the foregoing reasons, the Reduced Retail Development Alternative is considered the
environmentally superior alternative when compared to the proposed Project (Revised
Senior Enhanced Project).
INCORPORATION BY REFERENCE
These findings incorporate the text of the Final EIR for the Project (Revised Senior
Enhanced Project_, the Mitigation Monitoring and Reporting Program, City staff reports
relating to the Project and other documents relating to public hearings on the Project, by
reference, in their entirety. Without limitation, this incorporation is intended to elaborate
on the scope and nature of mitigation measures, project and cumulative impacts, the basis
for determining the significance of impacts, the comparison of the alternatives to the
Project, the determination of the environmentally superior alternative, and the reasons
for approving the Project.
RECORD OF PROCEEDINGS
Various documents and other materials related to the Project constitute the record of
proceedings upon which the City bases its findings and decisions contained herein. Those
documents and materials are located in the offices of the custodian for the documents
and materials, which is the City of Cupertino Community Development Department,
Cupertino City Hall, 10300 Torre Avenue, Cupertino, CA 95014‐3202.
NO RECIRCULATION REQUIRED
State CEQA Guidelines Section 15088.5 requires a lead agency to recirculate an EIR for
further review and comment when “significant new information” is added to the EIR
after public notice is given of the availability of the Draft EIR but before certification. No
significant new information was added to the Draft EIR as a result of the public comment
process. The Final EIR responds to comments, and clarifies, amplifies and makes
insignificant modifications to the Draft EIR. The Final EIR does not identify any new
significant effects on the environment or a substantial increase in the severity of an
environmental impact.
The proposed Project (Revised Senior Enhanced Project) consists of the same overall
developed area that was analyzed in the EIR for Original Project and Increased Senior
Housing Alternative, and would have the same number of residential units as the
Increased Senior Housing Alternative. Accordingly, all portions of the proposed Project
(Revised Senior Enhanced Project) were analyzed in the EIR. There are no new significant
effects on the environment or a substantial increase in the severity of an environmental
impact associated with proposed Project (Revised Senior Enhanced Project) that is the
subject of these Findings.
For the foregoing reasons, recirculation of the Final EIR is not required.
SUMMARY
Based on the foregoing Findings and the information contained in the record, the City
determines that all significant effects on the environment due to the approval of the
Project have been eliminated or substantially lessened where feasible.
Exhibit EA‐2
Mitigation Monitoring and Reporting Program
Westport Mixed‐
Use Project
21267 Stevens Creek Boulevard
APN: 326‐27‐042, ‐043
June 2020
All exposed surfaces (e.g., parking areas, staging
areas, soil piles, graded areas, and unpaved access
roads) shall be watered two times per day.
All haul trucks transporting soil, sand, or other
loose material off‐site shall be covered.
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.
All vehicle speeds on unpaved roads shall be
limited to 15 mph.
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.
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.
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.
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 BAAQMD phone number shall also be visible
to ensure compliance with applicable regulations.
Project
Applicant/Construction
Contractor
Prior to Issuance of
Building Permits
Authorizing Grading
or Other Construction
Activities
City of Cupertino
Public Works
Department
Review
Construction
Plans and
Specifications/
Conduct Site
Inspections
During Scheduled
Construction Site
Inspections
Vegetative ground cover shall be planted in
disturbed areas as soon as possible and watered
appropriately until vegetation is established.
All exposed surfaces shall be watered at a
frequency adequate to maintain minimum soil
moisture of 12 percent. Moisture content can be
verified by lab samples or moisture probe.
Mitigation Measure AQ‐4: Implement Mitigation Measure AQ‐2.
Project
Applicant/Construction
Contractor
Prior to Issuance of
Building Permits
Authorizing Grading
or Other Construction
Activities
City of Cupertino
Public Works
Department
Review
Construction
Plans and
Specifications/
Conduct Site
Inspections
During Scheduled
Construction Site
Inspections
BIOLOGICAL RESOURCES
Mitigation Measure BIO‐1: Nests of raptors and other birds shall be
protected when in active use, as required by the federal Migratory Bird
Treaty Act and the California Fish and Game Code. The construction
contractor shall indicate the following on all construction plans, if
construction activities and any required tree removal occur during the
breeding season (February 1 and August 31). Preconstruction surveys
shall:
Be conducted by a qualified biologist prior to tree removal or
grading, demolition, or construction activities. Note that
preconstruction surveys are not required for tree removal or
construction, grading, or demolition activities outside the
nesting period.
Be conducted no more than 14 days prior to the start of tree
removal or construction.
Be repeated at 14‐day intervals until construction has been
initiated in the area after which surveys can be stopped.
Document locations of active nests containing viable eggs or
young birds.
Protective measures for active nests containing viable eggs or young
birds shall be implemented under the direction of the qualified biologist
Project Applicant Prior to Issuance of
Building Permits
Authorizing Grading
or Other Construction
Activities
Qualifying Biologist Preconstruction
Survey
Once for Survey;
Ongoing if nesting
birds identified and
until they have left
the nest
until the nests no longer contain eggs or young birds. Protective
measures shall include:
Establishment of clearly delineated exclusion zones (i.e.,
demarcated by identifiable fencing, such as orange
construction fencing or equivalent) around each nest location
as determined by the qualified biologist, taking into account
the species of birds nesting, their tolerance for disturbance
and proximity to existing development. In general, exclusion
zones shall be a minimum of 300 feet for raptors and 75 feet
for passerines and other birds.
Monitoring active nests within an exclusion zone on a weekly
basis throughout the nesting season to identify signs of
disturbance and confirm nesting status.
An increase in the radius of an exclusion zone by the
qualified biologist if project activities are determined to be
adversely affecting the nesting birds. Exclusion zones may be
reduced by the qualified biologist only in consultation with
California Department of Fish and Wildlife.
The protection measures shall remain in effect until the
young have left the nest and are foraging independently or
the nest is no longer active.
Mitigation Measure BIO‐2: The proposed project shall comply with the
City of Cupertino’s Protected Trees Ordinance (Cupertino Municipal
Code Section 14.18). A tree removal permit shall be obtained for the
removal of any “protected tree,” and replacement plantings shall be
provided as approved by the City. If permitted, an appropriate in‐lieu
tree replacement fee may be paid to the City of Cupertino’s Tree Fund
as compensation for “protected trees” removed by the proposed project,
where sufficient land area is not available on‐site for adequate
replacement and when approved by the City.
In addition, a Tree Protection and Replacement Program (Program)
shall be developed by a Certified Arborist prior to project approval and
implemented during project construction to provide for adequate
protection and replacement of “protected trees,” as defined by the City’s
Municipal Code. The Program shall include the following provisions:
Project Applicant Prior to Issuance of
Building Permits
Authorizing Grading
or Other Construction
Activities
City of Cupertino
Public Works
Department
Plan Review and
Approval
Once During the
Preconstruction
Phase and Ongoing
During
Construction
Adequate measures shall be defined to protect all trees to be
preserved. These measures should include the establishment
of a tree protection zone (TPZ) around each tree to be
preserved, in which no disturbance is permitted. For design
purposes, the TPZ shall be located at the dripline of the tree
or 10 feet, whichever is greater. If necessary, the TPZ for
construction‐tolerant species (i.e., coast live oaks) may be
reduced to 7 feet.
Temporary construction fencing shall be installed at the
perimeter of TPZs prior to demolition, grubbing, or grading.
Fences shall be 6‐foot chain link or equivalent, as approved
by the City of Cupertino. Fences shall remain until all
construction is completed. Fences shall not be relocated or
removed without permission from the consulting arborist.
No grading, excavation, or storage of materials shall be
permitted within TPZs. Construction trailers, traffic, and
storage areas shall remain outside fenced areas at all times.
No excess soil, chemicals, debris, equipment, or other
materials shall be dumped or stored within he TPZ.
Underground services including utilities, sub‐drains, water or
sewer shall be routed around the TPZ. Where encroachment
cannot be avoided, special construction techniques such as
hand digging or tunneling under roots shall be employed
where necessary to minimize root injury. Irrigation systems
must be designed so that no trenching will occur within the
TPZ.
Construction activities associated with structures and
underground features to be removed within the TPZ shall
use the smallest equipment and operate from outside the
TPZ. The consulting arborist shall be on‐site during all
operations within the TPZ to monitor demolition activity.
All grading, improvement plans, and construction plans shall
clearly indicate trees proposed to be removed, altered, or
otherwise affected by development construction. The tree
information on grading and development plans should
indicate the number, size, species, assigned tree number, and
location of the dripline of all trees that are to be
retained/preserved. All plans shall also include tree
preservation guidelines prepared by the consulting arborist.
The demolition contractor shall meet with the consulting
arborist before beginning work to discuss work procedures
and tree protection. Prior to beginning work, the contractor(s)
working in the vicinity of trees to be preserved shall be
required to meet with the consulting arborist at the site to
review all work procedures, access routes, storage areas, and
tree protection measures.
All contractors shall conduct operations in a manner that will
prevent damage to trees to be preserved. Any grading,
construction, demolition or other work that is expected to
encounter tree roots shall be monitored by the consulting
arborist. If injury should occur to any tree during
construction, it should be evaluated as soon as possible by the
consulting arborist so that appropriate treatments can be
applied.
Any plan changes affecting trees shall be reviewed by the
consulting arborist with regard to tree impacts. These
include, but are not limited to, site improvement plans, utility
and drainage plans, grading plans, landscape and irrigation
plans, and demolition plans.
Trees to be preserved may require pruning to provide
construction clearance. All pruning shall be completed by a
State of California Licensed Tree Contractor (C61/D49). All
pruning shall be done by Certified Arborist or Certified Tree
Worker in accordance with the 2002 Best Management
Practices for Pruning published by the International Society
of Arboriculture, and adhere to the most recent editions of the
American National Standard for Tree Care Operations
(Section Z133.1) and Pruning (Section A300).
Any root pruning required for construction purposes shall
receive the prior approval of and be supervised by the
consulting arborist.
Any demolition or excavation, such as grading, pad
preparation, excavation, and trenching, within the dripline or
other work that is expected to encounter tree roots should be
approved and monitored by the consulting arborist. Any root
pruning required for construction purposes shall receive
prior approval of, and by supervised by, the consulting
arborist. Roots shall be cut by manually digging a trench and
cutting exposed roots with a sharp saw.
Tree(s) to be removed that have branches extending into the
canopy of tree(s) to remain must be removed by a qualified
arborist and not by construction contractors. The qualified
arborist shall remove the tree in a manner that causes no
damage to the tree(s) and understory to remain. Tree stumps
shall be ground 12 inches below ground surface.
All tree work shall comply with the Migratory Bird Treaty
Act as well as California Fish and Game Code Sections 3503
through 3513 to not disturb nesting birds. To the extent
feasible, tree pruning, and removal shall be scheduled
outside of the breeding season. Breeding bird surveys shall be
conducted prior to tree work. Qualified biologists shall be
involved in establishing work buffers for active nests. (see
Mitigation Measure BIO‐1)
The vertical and horizontal locations of all the trees identified
for preservation shall be established and plotted on all plans.
These plans shall be forwards to the consulting arborist for
review and comment.
Foundations, footings, and pavements on expansive soils
near trees shall be designed to withstand differential
displacement to protect the soil surrounding the tree roots.
Any liming within 50 feet of any tree shall be prohibited, as
lime is toxic to tree roots. Any herbicides placed under
paving materials shall be safe for use under trees and labeled
for that use.
Brush from pruning and trees removal operations shall be
chipped and spread beneath the trees within the TPZ. Mulch
shall be between 2 inches and 4 inches in depth and kept at a
minimum of 3 feet from the base of the trees.
All recommendations for tree preservation made by the
applicant’s consulting arborist shall be followed.
Mitigation Measure BIO‐3: Implement Mitigation Measures BIO‐1 and
BIO‐2.
Project Applicant Prior to Issuance of
Building Permits
Authorizing Grading
Qualifying
Biologist/City of
Cupertino Public
Works Department
Preconstruction
Survey/ Plan
Review and
Approval
Once for Survey;
Ongoing if nesting
birds identified and
until they have left
or Other Construction
Activities
the nest/ Once
during the
preconstruction
phase and ongoing
during construction
CULTURAL RESOURCES
Mitigation Measure CULT‐1: If any prehistoric or historic subsurface
cultural resources are discovered during ground‐disturbing (including
grading, demolition and/or construction) activities:
All work within 50 feet of the resources shall be halted, the
City shall be notified, and a qualified archaeologist shall be
consulted. The contractor shall cooperate in the recovery of
the materials. Work may proceed on other parts of the project
site while mitigation for tribal cultural resources, historical
resources or unique archaeological resources is being carried
out.
The qualified archaeologist shall prepare a report for the
evaluation of the resource to the California Register of
Historical Places and the City Building Department. The
report shall also include appropriate recommendations
regarding the significance of the find and appropriate
mitigations as follows:
o If the resource is a non‐tribal resource, the
archaeologist shall assess the significance of the
find according to CEQA Guidelines Section
15064.5.
o If the resource is a tribal resource – whether
historic or prehistoric – the consulting
archaeologist shall consult with the appropriate
tribe(s) to evaluate the significance of the resource
and to recommend appropriate and feasible
avoidance, testing, preservation or mitigation
measures, in light of factors such as the significance
of the find, proposed project design, costs, and
other considerations. If avoidance is infeasible,
Project
Applicant/Construction
Contractor
During Construction Consulting
Archeologist and
City of Cupertino
Public Works
Department
Plan Review and
Approval
As needed if
resources are
unearthed
other appropriate measures (e.g., data recovery)
may be implemented.
All significant non‐tribal cultural materials recovered shall be,
as necessary, and at the discretion of the consulting
archaeologist, subject to scientific analysis, professional
museum curation, and documentation according to current
professional standards.
Mitigation Measure CULT‐3: Implement Mitigation Measure CULT‐1. Project
Applicant/Construction
Contractor
During Construction Consulting
Archeologist and
City of Cupertino
Public Works
Department
Plan Review and
Approval
As needed if
resources are
unearthed
GEOLOGY AND SOILS
Mitigation Measure GEO‐1: The construction contractor shall
incorporate the following in all grading, demolition, and construction
plans:
In the event that fossils or fossil‐bearing deposits are
discovered during grading, demolition, or building,
excavations within 50 feet of the find shall be temporarily
halted or diverted.
The contractor shall notify the City of Cupertino Building
Department and a City‐approved qualified paleontologist to
examine the discovery.
The paleontologist shall document the discovery as needed,
in accordance with Society of Vertebrate Paleontology
standards (Society of Vertebrate Paleontology 1995), evaluate
the potential resource, and assess the significance of the
finding under the criteria set forth in CEQA Guidelines
Section 15064.5.
The paleontologist shall notify the appropriate agencies to
determine procedures that would be followed before
construction is allowed to resume at the location of the find.
If the project applicant determines that avoidance is not
feasible, the paleontologist shall prepare an excavation plan
for mitigating the effect of the proposed project based on the
Project Applicant/
Construction Contractor
During Construction Consulting
Paleontologist and
City of Cupertino
Public Works
Department
Plan Review and
Approval
As needed if
resources are
unearthed
qualities that make the resource important. The excavation
plan shall be submitted to the City for review and approval
prior to implementation.
Noise
Mitigation Measure NOISE‐1: Prior to Grading Permit issuance or the
start of demolition activities, the project applicant shall demonstrate, to
the satisfaction of the City of Cupertino Public Works Director and/or
Community Development Director, that the proposed project complies
with the following:
Pursuant to Cupertino Municipal Code (CMC) Section 10.48.053
the construction activities shall be limited to daytime hours as
defined in CMC Section 10.48.010 (i.e., daytime hours are from
7:00 a.m. to 8:00 p.m. on weekdays).
At least 90 days prior to the start of construction activities, all
offsite businesses and residents within 300 feet of the project site
shall be notified of the planned construction activities. The
notification shall include a brief description of the proposed
project, the activities that would occur, the hours when
construction would occur, and the construction period’s overall
duration. The notification should include the telephone
numbers of the City’s and contractor’s authorized
representatives that are assigned to respond in the event of a
noise or vibration complaint.
At least 10 days prior to the start of construction activities, a
sign shall be posted at the entrance(s) to the job site, clearly
visible to the public, which includes permitted construction
days and hours, as well as the telephone numbers of the City’s
and contractor’s authorized representatives that are assigned to
respond in the event of a noise or vibration complaint. If the
authorized contractor’s representative receives a complaint,
he/she shall investigate, take appropriate corrective action, and
report the action to the City.
During the entire active construction period, equipment and
trucks used for project construction will utilize the best available
noise control techniques (e.g., improved mufflers, equipment re‐
design, use of intake silencers, ducts, engine enclosures, and
acoustically attenuating shields or shrouds), wherever feasible.
Project
Applicant/Construction
Contractor
Prior to Issuance of
Building Permits
Authorizing Grading
or Other Construction
Activities
City of Cupertino
Public Works
Department
Plan Review and
Approval/Site
Inspections
Once for Plan
Review/ During
Scheduled
Constructions Site
Inspections
During the entire active construction period, stationary noise
sources shall be located as far from sensitive receptors as
possible, and they shall be muffled and enclosed within
temporary sheds, or insulation barriers or other measures shall
be incorporated to the extent feasible.
Haul routes shall be selected to avoid the greatest amount of
sensitive use areas.
Signs will be posted at the job site entrance(s), within the on‐site
construction zones, and along queueing lanes (if any) to
reinforce the prohibition of unnecessary engine idling. All other
equipment will be turned off if not in use for more than 5
minutes.
During the entire active construction period and to the extent
feasible, the use of noise producing signals, including horns,
whistles, alarms, and bells will be for safety warning purposes
only. The construction manager will use smart back‐up alarms,
which automatically adjust the alarm level based on the
background noise level or switch off back‐up alarms and
replace with human spotters in compliance with all safety
requirements and laws.
Utilities and Service Systems
Mitigation Measure UTIL‐1: No building permits shall be issued by the
City for the proposed Westport Mixed‐Use Project that would result in
exceeding the permitted peak wet weather flow capacity of 13.8 mgd
through the Santa Clara sanitary sewer system. The project applicant
shall demonstrate, to the satisfaction of the City of Cupertino and
Cupertino Sanitary District (CSD), that the proposed project would not
exceed the peak wet weather flow capacity of the Santa Clara sanitary
sewer system by implementing one or more of the following methods:
3. Reduce inflow and infiltration in the CSD system to
reduce peak wet weather flows; or
4. Increase on‐site water reuse, such as increased grey
water use, or reduce water consumption of the fixtures
used within the proposed project, or other methods that
are measurable and reduce sewer generation rates to
acceptable levels, to the satisfaction of the CSD.
Project Applicant Prior to Issuance of
Building Permits
Authorizing Grading
or Other Construction
Activities
City of Cupertino
Sanitary District
Plan Review and
Approval
Prior to Issuance of
Building Permits
Authorizing
Grading or Other
Construction
Activities
The proposed project’s estimated wastewater generation shall be
calculated using the generation rates used by the CSD in the Flow
Modeling Analysis for the Homestead Flume Outfall to the City of Santa Clara,
prepared by Mark Thomas & Co. Inc., dated December 6, 2019, unless
alternative (i.e., lower) generation rates achieved by the proposed
project are substantiated by the project applicant based on evidence to
the satisfaction of the CSD.
If the prior agreement between CSD and the City of Santa Clara that
currently limits the permitted peak wet weather flow capacity of 13.8
mgd through the Santa Clara sanitary sewer system were to be updated
to increase the permitted peak wet weather flow sufficiently to
accommodate, this would also change the impacts of the project to less
than significant. If this were to occur prior to the City’s approval of
building permits, then Mitigation Measure UTIL‐1 would no longer be
required to be implemented.
RESOLUTION NO. 20‐106
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A DEVELOPMENT PERMIT TO CONSTRUCT A MIXED‐USED
DEVELOPMENT CONSISTING OF 267 HOUSING UNITS (88
ROWHOUSES/TOWNHOUSES, 179 SENIOR APARTMENTS OF WHICH 48 ARE
SENIOR AFFORDABLE APARTMENTS), 27 MEMORY CARE LICENSED
ASSISTED LIVING RESIDENCES (“MEMORY CARE RESIDENCES”), AND 20,000
SQUARE FEET OF COMMERCIAL SPACE; DENSITY BONUS; DENSITY BONUS
PARKING REDUCTION; DENSITY BONUS WAIVERS FOR HEIGHT, BUILDING
PLANE, AND BELOW MARKET RATE HOUSING DISPERSION; AND AN
INCENTIVE/CONCESSION FOR THE CONSOLIDATION OF BMR HOUSING
UNITS IN A SINGLE SENIOR BUILDING. LOCATED AT 21267 STEVENS CREEK
BOULEVARD (APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: DP‐2018‐05
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR DEVELOPMENT PERMIT:
WHEREAS, the City of Cupertino received an application for a Development Permit
(including a density bonus and associated parking reduction and waivers) as described
in Section I of this resolution; and
WHEREAS, the Westport Cupertino Mixed‐Use Project (“Project”), including the
Development Permit, is fully described and analyzed in the Final Environmental Impact
Report (State Clearinghouse No. 2019070377) (“EIR” or “Final EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
Resolution No. 20‐106
Page 2
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Building 2 to include two‐bedroom units in addition to studios and one‐bedrooms; and
WHEREAS, because these revisions in the Project affect building height and dispersion
of BMR units, the Revised Senior Enhanced Project was reviewed by the Planning
Commission on July 14, 2020 for recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Development Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Development Permit,
Resolution No. 20‐106
Page 3
the City Council adopted Resolution No. 20‐105 certifying the EIR, adopting Findings,
adopting and requiring as conditions of approval all of the mitigation measures for the
Project which are within the responsibility and jurisdiction of the City that are identified
in the EIR, and adopting the Mitigation Monitoring and Reporting Program for the
Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Development Permit.
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposed development, at the proposed location, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
With the conditions of approval and the approved density bonus, parking reduction, waivers,
and incentive/concession, the project is consistent with the General Plan and Zoning
Ordinance and has been designed to be compatible with and respectful of adjoining land uses.
Additionally, all mitigation measures that are within the responsibility and jurisdiction of the
City have been adopted and will be made conditions of approval in order to mitigate potential
impacts to a less than significant level. Therefore, the project will not be detrimental or
injurious to properties or improvements in the vicinity, and will not be detrimental to the
public health, safety, general welfare, or convenience.
2. The proposed development will be located and conducted in a manner in accord with
the Cupertino Comprehensive General Plan and the purpose of the City’s zoning
ordinances.
The General Plan land use designation for the property is Commercial/Residential. The
proposed use is consistent with the General Plan. The subject property is zoned as Planned
General Commercial/Residential with a further designation as a Priority Housing Element
Site. Projects that propose a density above the allocation provided in the Housing Element are
required to obtain a Conditional Use Permit (CUP), which the project is seeking and subject
to approval, see Condition of Approval (COA) #3 in Section III. With the conditions of
approval and the granting of the requested exception, the proposed development has met the
applicable development standards of the Heart of the City Specific Plan and qualifies for a
density bonus, density bonus parking reduction, and certain density bonus waivers and
incentives/concessions for certain general plan and zoning development standards as
permitted in the City of Cupertino’s Municipal Code Chapter 19.56 Density Bonus.
Therefore, the proposed development is consistent with the purpose of the City’s zoning
ordinance.
Resolution No. 20‐106
Page 4
3. The remaining sites identified in the Housing Element are adequate to meet the
requirements of Section 65583.2 and to accommodate the Cityʹs share of the regional
housing need. (Findings required by Government Code Section 65863(b)(2).)
The remaining sites in the housing element inventory are adequate to meet the requirements
of Section 65583.2 and to accommodate the City’s share of the regional lower income housing
need. The proposed project does not reduce the density of the site below what was projected in
the City’s housing element; the housing element shows a site capacity of 200 units, whereas
267 units are proposed. However, the proposed project includes only 48 lower income units,
whereas the site was projected to contain 200 lower income units. Nonetheless, the remaining
sites in the inventory are adequate to accommodate the City’s share of the regional lower
income housing need, in that 1,2421 lower income units have been approved by the City at the
remaining housing element sites (Vallco Shopping District, Marina Plaza, the Hamptons, and
the Barry Swenson site), well in excess of the 563 units that must be accommodated to meet
the City’s share of the regional lower income housing need. The City has approved a total of
3,2092 units on these four sites, also well in excess of the City’s allocation of 1,064 units to
meet its total share of the regional housing need.
4. The applicant has requested a density bonus. Pursuant to Cupertino Municipal Code
Section 19.56.070, before approving an application that includes a request for density
bonus, incentive, parking reduction and/or waiver, the decision‐making body shall
make the following findings, as applicable:
a) A finding that the residential project is eligible for the density bonus and any
incentives, parking reductions or waivers requested.
The application is a for a density bonus project that provides for approximately 20% of
its base density as Below Market Rate Housing. Because 12% of the units on‐site will
be limited to Very Low Income seniors, the project is eligible for a 35% density bonus,
parking reduction, waivers, and up to two (2) incentives/concessions. The site is
eligible for a density bonus parking reduction under Government Code section
65915(p)(2) and Municipal Code Section 19.56.040(C) (0.5 space per bedroom), in that
it includes the maximum number of very low income units and is located within one‐
half mile of a major transit stop, with unobstructed access, as described in the staff
report and Final EIR.
1 Consisting of the following lower income units in approved projects: Vallco Shopping District, 1,201 units;
Veranda affordable housing (Barry Swenson site), 18 units; Marina Plaza, 16 units; Hamptons, 7 units net.
2 Consisting of the following total units in approved projects: Vallco Shopping District, 2,402 units; Veranda (Barry
Swenson site), 19 units; Marina Plaza, 188 units; Hamptons, 600 net new units.
Resolution No. 20‐106
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b) A finding that the requested incentive(s) or concession(s) will result in
identifiable and actual cost reductions based upon the documentation
provided by the applicant and the findings of the peer reviewer, if incentive(s)
or concession(s) are requested (other than mixed use development).
The applicant has requested as a concession that all senior BMR units be consolidated
in Building 2, rather than dispersed between Building 1 and Building 2. The City
proposes to expand this concession to allow the applicant to consolidate all BMR units
in Building 2, rather than dispersing them throughout Building 1 and the
Townhouse/Rowhouse portion. The expanded concession would result in actual cost
reductions to the project. First, the age restricted Buildings 1 and 2 are required to be
constructed using different methods and materials. As a state‐licensed assisted living
facility, Building 1 would be required to be built as a Type I building per the State of
California due to the nature of the proposed residents. Building 2 is under no such
restriction, however, and can be constructed as a Type IIIA Sprinklered SM building
for the top five levels and Type IA Sprinklered SM for the ground floor and connected
parking garage to Building 1 (Type IA). Therefore, the total cost savings by
consolidating the BMR units in Building 2 would be approximately $200,000 per BMR
unit in construction costs. Second, there is a substantial on‐going operating cost to
provide the services associated with a state‐licensed assisted living facility. These costs
far exceed the BMR housing allowance for rent and utilities and represent substantial
cost savings if the units were relocated to Building 2 as senior independent living units.
Third, a significant source of funding for affordable housing, which is from the sale of
tax credits, would not be available for the nine BMR units if they were developed in
Building 1 as state‐licensed assisted living units. Higher total financing cost plus the
additional time and cost of delay would be incurred to fill this gap. These costs are saved
by consolidating the BMR units in Building 2 as senior independent living units.
Fourth, providing BMR townhouse/rowhouse units would be more expensive than
providing senior BMR units in Building 1 for a number of reasons, including that the
townhouse/rowhouse units are proposed to be much larger than the senior units in
Building 1 and the applicant would have easier access to affordable financing if all
BMR units are consolidated in a single building.
c) If the density bonus is based all or in part on donation of land, a finding that
all requirements included Section 19.56.030C have been met.
The density bonus is not based on the donation of land, so the finding is not applicable.
Resolution No. 20‐106
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d) If the density bonus is based all or in part on the inclusion of a childcare facility,
a finding that all requirements included in Section 19.56.030 (D) have been met.
The density bonus is not based on the inclusion of a childcare facility, so the finding is
not applicable.
e) If the density bonus or incentive is based on a condominium conversion, a
finding that all the requirements included in Section 19.56.030 (E) have been
met.
The density bonus is not based on a condominium conversion, so the finding is not
applicable.
f) If the incentive includes mixed‐use development, a finding that all
requirements included in Section 19.56.40 (B) (2) have been met.
While the project is a mixed‐use development, the density bonus is not based on the
mixed‐used development as an incentive, so the finding is not applicable.
g) If a waiver is requested, a finding that that the development standards for
which the waivers are requested would have the effect of physically precluding
the construction of the housing development with the density bonus and
incentives or concessions permitted.
BMR Unit Dispersion Waiver: The project applicant requested a waiver of the
requirement that ʺ[t]he BMR units shall be dispersed throughout the residential
project,ʺ (CMC § 19.56.050.G 1 and BMR Mitigation Manual Section 2.3.4(D)),
insofar as it would have required BMR units to be dispersed in the
Townhouse/Rowhouse component of the project. However, this waiver is not justified.
There is no evidence that this requirement—which requires dispersion of BMR units,
but does not require the BMR units to be senior BMR units—would “physically
preclude” the project. Rather, enforcing this requirement would simply require the
applicant to convert some of the existing townhouses/rowhouses from market rate units
to BMR units. While that conversion may have financial impacts, those financial
impacts are not a basis for granting a waiver under State Density Bonus Law. No
change is required in the physical design of the project to disperse the BMR units. The
City has proposed an expanded concession that would allow the applicant to consolidate
all BMR units in Building 2, rather than dispersing them in the Townhouse/Rowhouse
portion of the Project.
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Height and Slope Setback Waivers: According to analysis prepared by the
architectural firm RRM, applying the height and slope setback limitations would
physically preclude the project by: (a) decreasing the amount of proposed open space
and landscaped areas below what is otherwise required by the City; (b) reducing the
average size of senior units; (c) reducing commercial ceiling heights; (d) decreasing
above‐ground parking and increasing underground parking. Therefore, the
development standards for the slope line setback and height would physically preclude
the development.
While the evidence in the record supports these waivers, there is also evidence
suggesting these waivers could have been supported as concessions, and City Council’s
preference would have been to approve these modifications as concessions.
h) If a reduction in off‐street parking standards for an eligible housing
development is requested, a finding that all the applicable requirements in
Section 19.56.040.C have been met. (The project is eligible to provide 0.5 space
per bedroom, which requires at least 11% very low income or 20% low income
units; within one‐half mile of a Major Transit Stop; and unobstructed Access to
the Major Transit Stop.)
The project proposes that 12% of the units on‐site will be limited to Very Low Income
seniors; it is within ½ mile of a Major Transit Stop at the intersection of N. Stelling
Road and Stevens Creek Boulevard, defined, as relevant for this project, as the
intersection of two or more major bus routes with a frequency of service interval of 15
minutes or less during the morning and afternoon peak commute periods; and residents
will have unobstructed access to this major transit stop because they will be able to
access it without encountering natural or constructed impediments. At a ratio of 0.5
spaces per bedroom, 243 spaces could be provided for the residences, but the project
proponent has elected to provide 320 spaces.
5. Since the applicable findings required above can be made, the decision‐making body
may deny an application for a waiver only if one of the following written findings as
applicable to each type of application, supported by substantial evidence:
a) That the incentive or concession, or waiver would have an adverse impact on
real property listed in the California Register of Historic Resources; or
There are no affected Historic Resources in the vicinity.
Resolution No. 20‐106
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b) That the incentive or concession, or waiver would have a specific, adverse
impact upon public health or safety or the physical environment, and there is
no feasible method to satisfactorily mitigate or avoid the specific, adverse
impact without rendering the residential project unaffordable to low‐ and
moderate‐income households. For the purpose of this subsection, ʺspecific,
adverse impactʺ means a significant, quantifiable, direct, and unavoidable
impact, based on objective, identified, written public health or safety
standards, policies, or conditions as they existed on the date that the
application for the residential project was deemed complete; or
As evidenced by the findings and conclusions of the Environmental Impact Report,
there exists no significant, quantifiable, direct, and unavoidable impacts, based on
objective, identified, written public health or safety standards, policies, or conditions as
they existed on the date that the application for the residential Project was deemed
complete.
c) That the incentive or concession, or waiver is contrary to state or federal law.
The requested waivers are not contrary to state or federal law.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the EIR and the Mitigation Monitoring and Reporting
Program for the Project (EA‐2018‐04), subject to the conditions which are enumerated in
this Resolution beginning on PAGE 3 thereof, and those contained in all other Resolutions
approved for this Project,
The application for a Development Permit, Application No. DP‐2018‐05, is hereby
approved, and that the conclusions upon which the findings and conditions specified in
this Resolution are based are contained in the Public Hearing record concerning
Application no. DP‐2018‐05 as set forth in the Minutes of the City Council Meeting of
August 18, 2020, and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPARTMENT.
Resolution No. 20‐106
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1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222,
VTM‐1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may
be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse
units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR‐2018‐22, EXC‐2019‐03, TM‐2018‐
03, ASA‐2018‐05, U‐2019‐03 and EA‐2018‐04 shall be applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on
the first page of the building plans.
5. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies
with regard to the proposed project for additional conditions and requirements.
Any misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
6. DEVELOPMENT ALLOCATION
The applicant shall receive an allocation of 237 of the residential unit allocations
for the Heart of the City Special Area. By requesting only one concession prior to
City Council approval of these first development permits, the applicant has
waived any future claim to a second concession.
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7. BICYCLE PARKING
The applicant shall provide bicycle parking and bike racks for the proposed project
in accordance with the City’s Parking Regulations under Chapter 19.124 of the
Cupertino Municipal Code.
8. BMR UNIT DESIGN REQUIREMENTS
The Applicant shall detail how the following requirements shall be met prior to
building permit issuance:
a) Senior BMR units shall be comparable to senior market‐rate units in terms of unit
type, number of bedrooms per unit, quality of exterior appearance and overall
quality of construction.
b) Senior BMR unit size should generally representative of the unit sizes within the
senior market‐rate portion of the residential project.
c) Interior features and finishes in the affordable units shall be durable, of good
quality and consistent with the contemporary standards of new housing.
9. BMR AGREEMENT
Prior to the recordation of a final map or issuance of any building permit, an
affordable housing agreement shall be recorded against the property. The
affordable housing agreement shall include, but not be limited to the following:
a) Total number of BMR units, type, location (site map), square footage, number of
bedrooms, and construction scheduling of market‐rate and BMR units;
b) Provisions to ensure concurrent construction and completion of BMR units and
market‐rate units;
c) Affordability levels for each BMR unit;
d) Provisions for income certification and screening of potential occupants of BMR
units;
e) Restriction control mechanisms;
f) Financing of ongoing administrative and monitoring costs;
g) Other reasonably required provisions to implement the Affordable Housing Plan.
10. BMR UNIT TERMS OF AFFORDABILITY:
Prior to occupancy, the proposed project shall record covenants that require 36 of
the senior BMR units to be occupied at rents that are affordable to very low or low‐
income households at a ratio of 60% very low‐income (22 units) to 40% low‐income
(14 units) for a period not less than 99 years from the date of first occupancy of the
unit pursuant to CMC Section 19.56.050.B and the City’s Below Market Rate
Housing Program. Also prior to occupancy, for the remaining 12 senior BMR units,
the proposed project shall record covenants that require the units to be occupied
Resolution No. 20‐106
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at rents that are affordable to very low or low‐income households at a ratio of 60%
very low‐income (7 units) to 40% low‐income (5 units) for a period of not less than
55 years from the date of first occupancy of the unit pursuant to CMC Section
19.56.050.A.
Pursuant to Government Code Section 66020(d)(1), this Condition 10 constitutes
written notice of a description of any exactions imposed by this Condition. You
are hereby further notified that the 90‐day approval period in which you may
protest any exactions imposed by this Condition, 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 any exactions imposed by this Condition.
11. CONCURRENT DEVELOPMENT OF BMR AND MARKET‐RATE HOUSING
a. The senior BMR units shall be constructed concurrently with the
Rowhouse/Townhouse Units. “Concurrent construction,” shall mean the
following:
i. All senior BMR units must have received a certificate of
occupancy or final inspection or the Project shall have reached the
Affordable Senior Housing Milestone before the City will issue a
certificate of occupancy or undertake final inspections of the sixty‐sixth
(66th) Rowhouse/Townhouse Units. The ʺAffordable Senior Housing
Milestoneʺ means the time at which the following conditions (a) plus (b)
have occurred, or condition (c) has occurred: (a) Developer has
transferred the parcel on which the senior BMR housing will be
constructed to an affordable housing developer or its affiliate; (b) the
affordable housing developer has closed on its construction financing;
(c) the Developer has provided evidence of a completion guaranty
(which may be a performance bond) to the City, in a form and amount
reasonably acceptable to the City.
ii. City will not issue a certificate of occupancy or undertake final
inspections for the senior BMR units until it has issued a certificate of
occupancy or completed final inspections for ten (10)
Rowhouse/Townhouse Units.
12. PUBLIC ART REQUIREMENT
Public art shall be provided for the project in accordance with General Plan Policy
2‐66 and the City’s Public Art Ordinance (Chapter 19.148 of the Cupertino
Municipal Code). The minimum expenditure for the artwork, including, but not
limited to design, fabrication, and installation is one (1) percent of the construction
Resolution No. 20‐106
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valuation for the first $100 million on construction valuation, or 0.9% of
construction valuation for valuation in excess of $100 million. The project pro
forma shall be provided to the City to confirm the project budget. The public art
plans (including location and design) shall be reviewed by the Fine Arts
Commission during the building permit stage, in advance of final occupancy.
Once approved by the Fine Arts Commission, the public artwork shall be installed
to the satisfaction of the City prior to final occupancy. In the event the developer
or property owner determines that the placement of artwork on a particular
property may not be feasible, the developer or property owner may apply to the
Fine Arts Commission for an in‐lieu payment alternative as indicated in Chapter
19.148 of the Cupertino Municipal Code. The in lieu payment shall be 1.25% of the
construction valuation.
13. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum
extent feasible subject to the Building Official. The applicant shall provide
evidence that materials were recycled prior to occupancy.
14. PRE‐CONSTRUCTION MEETING AND CONSTRUCTION MANAGEMENT
PLAN
A demolition and construction management plan shall be submitted and reviewed
prior to building permit issuance. Prior to commencement of construction
activities, the applicant shall arrange for a pre‐construction meeting with the
pertinent departments (Building, Planning, and Public Works) to review the
prepared construction management plan, to ensure that construction complies
with the conditions of approval, staging of construction equipment is appropriate,
tree protection measures are in place, public access routes are identified, and noise
and dust control measures are established. The plan shall include but not be
limited to the following:
a. Compliance with CEQA Mitigation Measures
b. Appropriate construction staging area
c. Hours of construction
d. Compliance with the City noise ordinance
e. Best management practices
f. Staging of construction equipment shall not occur within ___ feet of any
residential property.
g. Any other measures as determined to be appropriate by the Director of
Community Development
Resolution No. 20‐106
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15. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
The applicant shall indicate compliance with the following grading and
construction hours and noise limit requirements on all demolition, construction
and grading permits, and in the construction management plan(s), unless
otherwise indicated.
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements
of Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for
work done more than 750 feet away from residential areas shall be limited to
Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to
6 p.m. Grading, street construction, demolition or underground utility work
within 750 feet of residential areas shall not occur on Saturdays, Sundays,
holidays, and during nighttime period as defined in Section 10.48.053(b) of the
Municipal Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8
p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not
allowed on holidays as defined in Chapter 10.48 of the Municipal Code.
Nighttime construction is allowed if compliant with nighttime standards of
Section 10.48 of the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and
subcontractors of said construction restrictions.
16. GREEN BUILDING
The project shall be constructed in accordance with the City’s Green Building
Ordinance (Chapter 16.58 of the Cupertino Municipal Code). The applicant shall
obtain LEED Silver certification or an alternative reference standard in accordance
with the ordinance since the building size is over 50,000 square feet. Third party
LEED certification or alternative reference standard is required per the ordinance
criteria.
17. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction
of the approved project. The applicant shall provide information and plans to
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allow the Building Official and the Fire Marshall or their designee that the
proposed plans comply with Building and Fire Codes in effect at the time of
application for a building permit.
18. HOMEOWNERS’ ASSOCIATION
The Homeowners Association documents shall be approved by the Director of
Community Development and the City Attorney prior to recordation. A Home
Owner’s Association shall be formed to maintain the common areas of the
property. The Conditions, Covenants and Restrictions (CC&Rs) shall be reviewed
and approved by the City Attorney prior to recordation. The following terms shall
be incorporated in to the Association’s Conditions, Covenants and Restrictions:
The members/board shall meet at a minimum of once/year
The Association dues shall cover:
o Maintenance of common area on the property including
hardscaping, parking areas, landscaping and accessory items,
such as trash bins/areas, tree grates, outside trash bins, fences,
etc.
o Site repair on a regular schedule, or as otherwise necessary, and
hardscape/landscape renovation and replacement as necessary.
Any changes to the CC&R’s must be reviewed and approved by the City
Disbanding of the Association shall require an amendment to the
Development Permit.
19. TRASH AND DELIVERY ACTIVITIES
A detailed refuse and truck delivery plan shall be prepared by the applicant. The
plan shall specify locations of trash facilities, refuse pick up schedules and truck
delivery schedules and routes. All trash facilities must be screened and enclosed
to the satisfaction of the Public Works Department. The final plan shall be
submitted to the City for review and approval prior to issuance of building
permits.
20. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the
original approved plans. Final building exterior treatment plan (including but not
limited to details on exterior color, materials, architectural treatments, doors,
windows, lighting fixtures, and/or embellishments) shall be reviewed and
approved by the Director of Community Development prior to issuance of
building permits to ensure quality and consistency. Any exterior changes
determined to be substantial by the Director of Community Development shall
Resolution No. 20‐106
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either require a modification to this permit or a new permit based on the extent of
the change.
21. SITE LIGHTING
All new lighting must conform to the standards in the Parking Regulations
Ordinance, and the final lighting plan (including a detailed photometric plan) shall
be reviewed and approved by the Director of Community Development prior to
building permit issuance. A report from a licensed lighting engineer may be
required to confirm all exterior lighting throughout the site complies with the
City’s Ordinance.
22. ROOFTOP EQUIPMENT SCREENING
All mechanical and other equipment on the building or on the site shall be
screened so they are not visible from public street areas or adjoining
developments. The height of the screening shall be taller than the height of the
mechanical equipment that it is designed to screen. A line of sight plan may be
required to demonstrate that the equipment will not be visible from any public
right‐of‐way. The location of the equipment and necessary screening shall be
reviewed and approved by the Director of Community Development prior to
issuance of building permits.
23. RESTAURANT ODOR ABATEMENT
All new restaurants shall install odor abatement systems to reduce odor impacts
from the restaurants to the adjacent community. The odor abatement systems shall
be installed prior to final occupancy of the associated restaurant(s). Detailed plans
shall be reviewed and approved by the Director of Community Development prior
to issuance of building permits.
24. SIGN PROGRAM
A sign program is required for this project. The sign program shall be approved
by the Director of Community Development prior to issuance of sign permits.
25. SITE IMPROVEMENTS
All proposed site improvements shall be completed prior to final occupancy of any
structures approved in conjunction with the project.
26. NOISE LEVELS AND ABATEMENT
Project use shall comply with the City’s Community Noise Control Ordinance at
all times. Should the project exceed any of the stipulated maximum noise levels
outlined in the City’s Community Noise Control Ordinance, an acoustical
Resolution No. 20‐106
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engineer may be required to submit noise attenuation measures to the satisfaction
of the Director of Community Development at the applicant’s expense.
27. ONGOING OBLIGATIONS
The applicant shall be responsible to implement the ongoing obligation as
described in the Environmental Impact Report.
28. INDEMNIFICATION
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
Resolution No. 20‐106
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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.
29. 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.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS
DEPARTMENT
1. STREET IMPROVEMENTS & DEDICATION
Provide street dedication in fee title and frontage improvements along the project
frontage to the satisfaction of the Director of Public Works. The street improvement
plans must be submitted and approved prior to the Final Map approval.
Street improvements may include, but are not limited to, sidewalk, curb & gutter,
ADA ramps, city standard driveways, storm drain and sanitary sewer system, street
tree installations, street lights (new and/or relocate), bus stop, concrete bus pad, bus
shelter and other related bus improvements, upgrade the existing pedestrian warning
device at the mid‐block crossing on Mary Avenue to rectangular rapid flashing
beacons (RRFB), pavement, signs and pavement markings, and installation of a Class
IV Separated Bikeway between Mary Ave and Hwy 85 NB on‐ramp per the approved
Cupertino Bicycle Transportation Plan Implementation along project frontage on
Stevens Creek Blvd. The installation will require traffic signal modifications at the
intersections of Stevens Creek Blvd & Mary Ave and Stevens Creek Blvd & Hwy 85.
The Applicant will be required to coordinate with Caltrans, for all work located within
Caltrans’ jurisdiction.
At the street improvement plan stage, the proposed bus stop design (shown on VTM‐
6) on Stevens Creek Blvd., west of Mary Ave., shall be further reviewed and the final
design must be approved by both VTA and City of Cupertino prior to issuance of
Final Map. The City may require a bus duckout. As result, an additional easement
may be required for proposed bus shelter.
Pursuant to Government Code Section 66020(d) (1), these Conditions constitute
written notice of a description of such dedication. You are hereby further notified that
Resolution No. 20‐106
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the 90‐day approval period in which you may protest this dedication, 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 dedication.
2. TRANSPORTATION
Prior to the Final Map approval, the Applicant shall mitigate any traffic impacts as
the result of the environmental impact study. And, the project shall implement
additional Bicycle Transportation Plan improvements in the vicinity of the property.
The value of the improvements shall be equivalent to the Transportation Impact Fee
required of the project and shall be provided in‐lieu of the fee. The improvements
shall include construction of a portion of the separated bicycle lanes along the south
side of Stevens Creek Blvd. between Hwy 85 & Mary Ave, or other related work as
determined by the Director of Public Works.
3. PEDESTRIAN AND BICYCLE IMPROVEMENTS
The Applicant shall provide pedestrian and bicycle related improvements, including
but not limited to, pedestrian and bike paths and bicycle racks throughout the project
site, and RRFB consistent with the Cupertino Bicycle Transportation Plan and the
Pedestrian Transportation Guidelines, and as approved by the Director of Public
Works. The Developer will design and build an alignment for the bicycle access
through the property, including at the southwest corner, that ensures a safe and
efficient movement for bicycle traffic, to the satisfaction of the City Engineer.
4. FINAL MAP
Prior to recordation of final map, all building(s) that straddle the new property line
must be removed. Project is required to dedicate Public Access Easements to facilitate
on‐site bike and pedestrian paths as identified in the Cupertino Bicycle Transportation
Plan and Pedestrian Transportation Plan and shall be substantially consistent with
those shown on the Vesting Tentative Map. Public Access Easements will be required
at the northwestern and southwestern property corners, along the west side of the
project site connecting north to south between Stevens Creek Boulevard and Mary
Avenue. Final alignment of the public paths and easements shall be approved by the
City Engineer.
Pursuant to Government Code Section 66020(d) (1), these Conditions constitute
written notice of a description of such dedication. You are hereby further notified that
the 90‐day approval period in which you may protest this dedication, pursuant to
Government Code Section 66020(a), has begun. If you fail to file a protest within this
Resolution No. 20‐106
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90‐day period complying with all of the requirements of Section 66020, you will be
legally barred from later challenging such dedication
5. GATEWAY MONUMENT SIGN
At street improvement plan stage, the Applicant shall fabricate and install a gateway
monument sign in the median of Stevens Creek Boulevard, east of Hwy 85. The
precise location, design and size of the gateway monument sign shall be to the
satisfaction of the Director of Public Works.
6. STREET LIGHTING INSTALLATION
At street improvement plan stage, street lighting shall be designed and installed as
approved by the Director of Public Works. Lighting fixtures shall be positioned so as
to preclude glare and other forms of visual interference to adjoining properties, and
shall be no higher than the maximum height permitted by the zone in which the site
is located.
7. GRADING
Grading shall be performed to the satisfaction of the Director of Public Works in
accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications
and 404 permits maybe required. Please contact Army Corp of Engineers and/or
Regional Water Quality Control Board as appropriate.
8. STORM DRAINAGE
Prior to the Final Map approval, the Applicant shall address and mitigate the storm
drainage impact as the result of the environmental impact study.
Drainage shall be provided to the satisfaction of the Director of Public Works.
Hydrology and pre‐ and post‐development hydraulic calculations must be provided
to indicate whether additional storm water control measures are to be constructed or
renovated. The storm drain system may include, but is not limited to, subsurface
storage of peak stormwater flows (as needed), bioretention basins, and Low Impact
Development measures to reduce the amount of runoff from the site and improve
water quality.
All storm drain inlets shall be clearly marked with the words “No Dumping – Flows
to Creek” using permanently affixed metal medallions or equivalent, as approved by
the Environmental Programs Division.
Resolution No. 20‐106
Page 20
Project will be required to install stormwater trash capture facilities that meet the
requirements established by Municipal Regional Permit. Trash capture devices shall
be located onsite and shall be situated so as to ensure trash carried by storm water is
collected onsite and does not flow directly to the City storm drain system. Applicant’s
engineer shall design and size the trash capture devices to ensure that in the event the
devices cause an obstruction to onsite stormwater flow, onsite flooding does not
occur.
9. C.3 REQUIREMENTS
C.3 regulated improvements are required for all projects creating and/or replacing
10,000 S.F. or more of impervious surface (collectively over the entire project site). The
developer shall reserve a minimum of 4% of developable surface area for the
placement of low impact development measures, for storm water treatment, unless
an alternative storm water treatment plan, that satisfies C.3 requirements, is approved
by the Director of Public Works.
The Applicant must include the use and maintenance of site design, source control
and storm water treatment Best Management Practices (BMPs), which must be
designed per approved numeric sizing criteria. A Storm Water Management Plan,
Storm Water Facilities Easement Agreement, Storm Water Facilities Operation and
Maintenance Agreement, and certification of ongoing operation and maintenance of
treatment BMPs are each required.
All storm water management plans are required to obtain certification from a City
approved third party reviewer.
10. SUBDIVISION AGREEMENT
The project developer shall enter into a subdivision 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 recordation of Final Map.
Fees:
a. Checking & Inspection Fees: Per current fee schedule ($7,389.00 or 6%
of improvement costs)
b. Grading Permit: Per current fee schedule ($3,059.00 or 6%
of improvement costs)
Resolution No. 20‐106
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c Traffic Impact Fee Per current fee schedule (Multi‐Family ‐
$3,868/unit, Single‐Family ‐ $6,238/unit,
and Commercial ‐$10.04/sf)
d. Storm Drainage Fee: Per current fee schedule ($9,566 per AC)
e. Park Fee: Per current fee schedule
Senior ‐ $30,000/DU
Other Residential – $105,000, $60,000
and/or $54,000/DU depending on
density
f. Map Review Fee: Per current fee schedule ($9,826)
g. Storm Management Plan Fee: Per current fee schedule ($1,396)
h. Street Tree By Developer
Bonds:
Faithful Performance Bond: 115% of Off‐site and On‐site Improvements
Labor & Material Bond: 100% of Off‐site and On‐site Improvement
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.
11. TRASH, RECYCLING AND COMPOST ENCLOSURES
Trash enclosure plans must be designed in accordance with the City’s “Public Works
Guidelines” posted at www.cupertino.org/nowaste, and to the satisfaction of the
Environmental Programs Manager. Clearance by the Public Works Department is
required prior to obtaining a building permit. (CMC 9.18.210 H & K)
Applicant shall enter into an agreement with the City that indemnifies and holds
harmless both the City and the refuse and recycling collection company (Recology)
from and against any harm, damage or maintenance that may occur or become
necessary to onsite paving stone driveway surfaces.
12. OPERATIONS & MAINTENANCE AGREEMENT
Developer shall enter into an Operations & Maintenance Agreement with the City
prior to final occupancy. The Agreement shall include the operation and maintenance
Resolution No. 20‐106
Page 22
for non‐standard appurtenances in the public road right‐of‐way that may include, but
is not limited to, sidewalk, pavers, and street lights.
13. UNDERGROUND UTILITIES
Developer shall comply with the requirements of the Underground Utilities
Ordinance No. 331 and other related Ordinances and regulations of the City of
Cupertino, and shall coordinate with affected utility providers for installation of
underground utility devices. Developer shall submit detailed plans showing utility
underground provisions. Said plans shall be subject to prior approval of the affected
Utility provider and the Director of Public Works.
14. TRANSFORMERS & CABINETS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
15. WATER BACKFLOW PREVENTERS
Domestic and Fire Water Backflow preventers and similar above ground equipment
shall be placed away from the public right of way and site driveways to a location
approved by the Cupertino Planning Department, Santa Clara County Fire
Department and the water company.
16. 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.
17. NPDES CONSTRUCTION GENERAL PERMIT
When and where it is required by the State Water Resources Control Board (SWRCB),
the developer must obtain a Notice of Intent (NOI) from the SWRCB, which
encompasses preparation of a Storm Water Pollution Prevention Plan (SWPPP), use
of construction Best Management Practices (BMPs) to control storm water runoff
quality, and BMP inspection and maintenance.
Resolution No. 20‐106
Page 23
18. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil
Engineer. This plan should include all erosion control measures used to retain
materials on site. Erosion control notes shall be stated on the plans.
19. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the
timetable for all grading/erosion control work in conjunction with this project.
20. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to
be approved by the City. The plan shall include a temporary traffic control plan for
work in the right of way as well as a routing plan for all vehicles used during
construction. All traffic control signs must be reviewed and approved by the City
prior to commencement of work. The City has adopted Manual on Uniform Traffic
Control Devices (MUTCD) standards for all signage and striping work throughout
the City.
21. STREET TREES
Street trees shall be planted within the Public Right of Way to the satisfaction of the
Director of Public Works and shall be of a type approved by the City in accordance
with Ordinance No. 125.
22. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
23. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County Fire
Department prior to issuance of building permits. Clearance should include written
approval of the location of any proposed Fire Backflow Preventers, Fire Department
Connections and Fire Hydrants (typically Backflow Preventers should be located on
private property adjacent to the public right of way, and fire department connections
must be located within 100’ of a Fire Hydrant).
24. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire
Department as needed.
25. SAN JOSE WATER COMPANY CLEARANCE
Resolution No. 20‐106
Page 24
Provide San Jose Water Company approval for water connection, service capability
and location and layout of water lines and backflow preventers before issuance of a
building permit approval.
26. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall “quit claim” to the City all rights to pump, take or otherwise extract
water from the underground basin or any underground strata in the Santa Clara
Valley.
27. SANITARY DISTRICT
A letter of clearance for the project shall be obtained from the Cupertino Sanitary
District prior to recordation of Final Map or issuance of building permits, whichever
comes first issuance of building permits.
28. UTILITY EASEMENTS
Clearance approvals from the agencies with easements on the property (including
PG&E, AT&T, and California Water Company, and/or equivalent agencies) will be
required prior to recordation of Final Map or issuance of building permits, whichever
comes first. Provide letters from PG&E and AT&T to state their concurrence with the
proposed easement relocation.
SECTION V: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY
FIRE DEPARTMENT
1. FIRE SPRINKLERS REQUIRED:
Approved automatic sprinkler systems in new and existing buildings and structures
shall be provided in the locations described in this Section or in Sections 903.2.1
through 903.2.18 whichever is the more restrictive. For the purposes of this section,
firewalls used to separate building areas shall be constructed in accordance with the
California Building Code and shall be without openings or penetrations. NOTE: The
owner(s), occupant(s) and any contractor(s) or subcontractor(s) are responsible for
consulting with the water purveyor of record in order to determine if any
modification or upgrade of the existing water service is required. A State of California
licensed (C‐16) Fire Protection Contractor shall submit plans, calculations, a
completed permit application and appropriate fees to this department for review and
approval prior to beginning their work. CFC Sec. 903.2 as adopted and amended by
CMC.
2. STANDPIPES REQUIRED
Standpipe systems shall be provided in new buildings and structures in accordance
with this section. Fire hose threads used in connection with standpipe systems shall
Resolution No. 20‐106
Page 25
be approved and shall be compatible with fire department hose threads. The location
of fire department hose connections shall be approved. Standpipes shall be manual
wet type. In buildings used for high‐piled combustible storage, fire hose protection
shall be in accordance with Chapter 32. Installation standard. Standpipe systems shall
be installed in accordance with this section and NFPA 14 as amended in Chapter 47.
CFC Sec. 905
3. WATER SUPPLY REQUIREMENTS
Potable water supplies shall be protected from contamination caused by fire
protection water supplies. It is the responsibility of the applicant and any contractors
and subcontractors to contact the water purveyor supplying the site of such project,
and to comply with the requirements of that purveyor. Such requirements shall be
incorporated into the design of any water‐based fire protection systems, and/or fire
suppression water supply systems or storage containers that may be physically
connected in any manner to an appliance capable of causing contamination of the
potable water supply of the purveyor of record. Final approval of the system(s) under
consideration will not be granted by this office until compliance with the
requirements of the water purveyor of record are documented by that purveyor as
having been met by the applicant(s). 2016 CFC Sec. 903.3.5 and Health and Safety
Code 13114.7.
4. TIMING OF INSTALLATION
When fire apparatus access roads or a water supply for fire protection is required to
be installed, such protection shall be installed and made serviceable prior to and
during the time of construction except when approved alternative methods of
protection are provided. Temporary street signs shall be installed at each street
intersection when construction of new roadways allows passage by vehicles in
accordance with Section 505.2 CFC Sec. 501.4
5. REQUIRED FIRE DEPT. ACCESS
Commercial and Industrial Developments
a. Buildings exceeding three stories or 30 feet in height. Buildings or facilities
exceeding 30 feet (9144 mm) or three stories in height shall have a least two means
of fire apparatus access for each structure.
b. Buildings exceeding 62,000 square feet in area. Buildings or facilities having a
gross building area of more than 62,000 square feet (5760 mm) shall be provided
with two separate and approved fire apparatus access roads.
c. Exception: Projects having a gross building area of up to 124,000 square feet (11520
mm) that have a single approved fire apparatus access road when all buildings are
equipped throughout with approved automatic sprinkler systems. Multi‐Family
Resolution No. 20‐106
Page 26
Residential Developments (R‐1 & R‐2 occupancies) 1. Multi‐family residential
projects having more than 100 dwelling units shall be equipped throughout with
two separate and approved fire apparatus access roads. CFC Sec. Chp. 5 as
adopted and amended by CUPMC.
6. REQUIRED AERIAL ACCESS
a. Where required: Buildings or portions of buildings or facilities exceeding 30 feet
(9144 mm) in height above the lowest level of fire department vehicle access shall
be provided with approved fire apparatus access roads capable of accommodating
fire department aerial apparatus. Overhead utility and power lines shall not be
located within the aerial fire apparatus access roadway.
b. Width: Fire apparatus access roads shall have a minimum unobstructed width of
26 feet (7925) in the immediate vicinity of any building or portion of building more
than 30 feet (9144 mm) in height.
c. Proximity to building: At least one of the required access routes meeting this
condition shall be located within a minimum of 15 feet (4572) and a maximum of
30 feet (9144mm) from the building, and shall be positioned parallel to one entire
side of the building, as approved by the fire code official. Access roadway and fire
lane noted on Sheet C4 within proximity of structure exceeding 30‐feet in height is located
a maximum distance of 30‐feet away from one long side.
7. FIRE APPARATUS (ENGINE) ACCESS ROADS REQUIRED:
Provide access roadways with a paved all weather surface, a minimum width of 26
feet, vertical clearance of 13 feet 6 inches, minimum circulating turning radius of 42
feet and 23 feet inside, and a maximum slope of 15%. Installations shall conform to
Fire Department Standard Details and Specifications sheet A‐1.
8. FIRE DEPARTMENT (ENGINE) ROADWAY TURNAROUND
Provide an approved fire department engine roadway turnaround with a minimum
radius of 36 feet outside and 23 feet inside. Installation shall conform to Fire
Department Standard Details and Specification sheet A‐1. Cul‐de‐sac. CFC Sec. 503 as
adopted and amended by CUPMC. Circulating fire lane shown on Sheet C4 with
conforming radii of turns for an aerial apparatus proximal to the structure exceeding
30‐feet in height.
9. GROUND LADDER ACCESS
Ground‐ladder access rescuer from second and third floor rooms shall be made
possible for fire department operations. With the climbing angle of seventy‐five
degrees maintained, an approximate walkway width along either side of the building
shall be no less than seven feet clear. Landscaping shall not be allowed to interfere
Resolution No. 20‐106
Page 27
with the required access. CFC Sec. 503 and 1029 NFPA 1932 Sec. 5.1.8 through 5.1.9.2.
Required for all residential townhouses/rowhouses and each emergency egress
window.
10. FIRE ALARM REQUIREMENTS
Refer to CFC Sec. 907 and the currently adopted edition of NFPA 72.
11. EMERGENCY RADIO RESPONDER COVERAGE:
Emergency responder radio coverage in new buildings. All new buildings shall have
Approved radio coverage for emergency responders within the building based upon
the existing coverage levels of the public safety communication systems of the
jurisdiction at the exterior of the building. This section shall not require improvement
of the existing public safety communication systems. Refer to CFC Sec. 510 for further
requirements.
12. CONSTRUCTION SITE FIRE SAFETY
All construction sites must comply with applicable provisions of the CFC Chapter 33
and our Standard Detail and Specification SI‐7. Provide appropriate notations on
subsequent plan submittals, as appropriate to the project. CFC Chp. 33.
13. ADDRESS IDENTIFICATION
New and existing buildings shall have approved address numbers, building numbers
or approved building identification placed in a position that is plainly legible and
visible from the street or road fronting the property. These numbers shall contrast
with their background. Where required by the fire code official, address numbers
shall be provided in additional approved locations to facilitate emergency response.
Address numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a
minimum of 4 inches (101.6 mm) high with a minimum stroke width of 0.5 inch (12.7
mm). Where access is by means of a private road and the building cannot be viewed
from the public way, a monument, pole or other sign or means shall be used to
identify the structure. Address numbers shall be maintained. CFC Sec. 505.1
14. PUBLIC FIRE HYDRANT(S) REQUIRED
Provide public fire hydrant(s) at location(s) to be determined jointly by the Fire
Department and San Jose Water Company. Maximum hydrant spacing shall be 500
feet, with a minimum single hydrant flow of 6500 GPM at 20 psi, residual. Fire
hydrants shall be provided along required fire apparatus access roads and adjacent
public streets. CFC Sec. 507, and Appendix B and associated Tables, and Appendix C.
All existing and new required fire hydrants per above spacing and fire flow requirement are
Resolution No. 20‐106
Page 28
identified on Sheet C4 with note indicating the FDC for each building shall be within 100ʹ of
a fire hydrant.
15. TURN RADIUS (CIRCULATING):
The minimum outside turning radius is 42 feet for required access roadways. Greater
radius up to 60 feet may be required where the Fire Department determines that
Ladder Truck access is required. Circulating refers to travel along a roadway without
dead ends.
SECTION VI: CONDITIONS ADMINISTERED BY THE ENVIRONMENTAL SERVICES
DEPARTMENT
1. COMPREHENSIVE NARRATIVE WASTE MANAGEMENT PLAN
The comprehensive narrative waste management plan for the project is required. This
plan will serve as a companion document to the plan sheets provided to illustrate how
garbage, organics, recyclables, and used cooking oil will be moved, stored, and
serviced on the property. It will provide support that sufficient space is provided
related to future occupant convenience and waste hauler circulation/access. The plan
should include at a minimum, the following:
Identification of each building and their respective trash room.
How is waste moved from the retail areas that do not have a trash room within
their building?
How is waste collected by the waste hauler from the trash rooms for buildings
1 and 2?
The Recology will need a minimum of 22 feet of overhead clearance to service
containers at any loading dock. If the compactors are roll‐off type, a minimum
horizontal clearance of 50 feet is required to access containers. Please identify
these areas.
All front end loader compactor bins are required to be placed out in a collection
area where Recology trucks can adequately service them. Please identify this
area.
Confirmation that the loading dock and trash room will be shared in the retail
space.
If the space is shared, what is the area (s.f.) designated for all waste containers
(see below)?
Types of containers (bins/compactors) designated for all trash rooms, the size
of each, the number of each. Used cooking oil tallow bins will be required in
all trash rooms in addition to the garbage, organics, and recycling bins.
Are all trash rooms and compactor areas at level grade or subterranean?
Resolution No. 20‐106
Page 29
In the multi‐floor buildings, is there a trash room on each level, will trash
chutes be used, other? All three waste streams must be provided for on each
floor.
How is waste from townhouses and rowhouses stored and collected?
Will the individual townhome/rowhouse occupants individually subscribe for
waste service for their carts?
If wheeled carts, where are they collected, and where do residents store them
when not being serviced.
If carts are intended to be stored in the garage, include the area (s.f) each unit
will have in the garage for all three carts. If garage area is yet to be determined,
please indicate that sufficient space will be provide to storage three waste carts
and adequate interior garage parking.
Explain how waste is collected from the four townhouse buildings adjacent to
Stevens Creek Boulevard. Identify the staging area on the plans if residents
will be staging their carts on the trash route.
2. WASTE TRIO
Nine permanently installed waste trios including cigarette butt urns which are
designed for exterior use are required and must be included on the plans. Waste
trios are outdoor receptacles positioned side‐by‐side which are clearly labeled
recycling, compost, and landfill and include covers to prevent rainwater intrusion.
An example of waste trios may be viewed at the following:
www.cupertino.org/greendev . The trios must be situated on private property
adjacent to the sidewalk for patron and pedestrian use. Trios should be located as
follows:
Central Green (3): west and east ends of the townhouse green and near the
parking area adjacent to the triangular central green
3. STORM DRAIN INLETS
The State Water Boards have updated their list of certified devices since the first
comments. Please note that all devices/systems must be selected from the certified
full capture system list as follows:
https://www.waterboards.ca.gov/water_issues/programs/stormwater/docs/trash
_implementation/a1_certified_fcd_rev_27jun18.pdf
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Resolution No. 20‐106
Page 30
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
RESOLUTION NO. 20‐107
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING AN ARCHITECTURAL AND SITE APPROVAL PERMIT TO
CONSTRUCTMIXED‐USED DEVELOPMENT CONSISTING OF 267 HOUSING
UNITS (88 ROWHOUSE/TOWNHOMES, 179 SENIOR APARTMENTS, OF WHICH
INCLUDE 48 SENIOR AFFORDABLE APARTMENTS), 27 MEMORY CARE
LICENSED ASSISTED LIVING RESIDENCES (“MEMORY CARE RESIDENCES”),
AND 20,000 SQUARE FEET OF COMMERCIAL SPACELOCATED AT LOCATED
AT 21267 STEVENS CREEK BOULEVARD (APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: ASA‐2018‐05
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR ARCHITECTURAL AND SITE APPROVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for an Architectural and Site Approval Permit as described in Section I of this resolution;
and
WHEREAS, The Westport Cupertino Mixed‐Use Project (“Project”), including the
Architectural and Site Approval Permit, is fully described and analyzed in the Initial
Study and proposed Final Environmental Impact Report (State Clearinghouse No.
2019070377) (“EIR” or “Final EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
Resolution No. 20‐107
Page 2
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two‐bedroom units in addition to studios and one‐bedroom units;
and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Architectural and Site
Approval; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
Resolution No. 20‐107
Page 3
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Development Permit,
the City Council adopted Resolution No. 20‐105 certifying the EIR, adopting and
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for an Architectural and Site Approval Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposal, 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;
With the conditions of approval and the approved density bonus, parking reduction, waivers,
and incentive/concession the project is consistent with the General Plan and Zoning
Ordinance,. All mitigation measures identified in the Initial Study/Mitigated Negative
Declaration that are within the responsibility and jurisdiction of the City have been adopted
and incorporated into the project to mitigate potential impacts to a less than significant level.
As a result, the project will not be detrimental or injurious to property or improvements in the
vicinity, and will not be detrimental to the public health, safety, general welfare, or
convenience.
2. The proposal is consistent with the purposes of Chapter 19.168, the General Plan, any
specific plan, zoning ordinances, applicable planned development permit, conditional
use permits, variances, subdivision maps or other entitlements to use which regulate
the subject property including, but not limited to, adherence to the following specific
criteria:
a) Abrupt changes in building scale should be avoided. A gradual transition related
to height and bulk should be achieved between new and existing buildings.
The proposed project is a redevelopment of a commercial site with mix of housing types
that include two multistory high‐density structures, as well as lower density
townhome/rowhouse condominiums. The site is bordered by high density residential to the
north and De Anza College to the South, across Stevens Creek Boulevard. The development
is designed to concentrate the taller structures on the northwest corner of Mary Avenue
and Stevens Creek Boulevard intersection while the shorter townhome/rowhouse
structures are placed closer to the smaller apartment and single‐family developments along
Mary Avenue. This design provides a gradual transition between buildings of different
height and bulk.
Resolution No. 20‐107
Page 4
b) In order to preserve design harmony between new and existing building and in
order to preserve and enhance property values, the materials, textures and colors
of new building should harmonize with adjacent development by being consistent
or compatible with design and color schemes with the future character of the
neighborhoods and purposes of the zone in which they are situated. The location,
height and materials of walls, fencing, hedges and screen planting should
harmonize with adjacent development. Unsightly storage areas, utility installations
and unsightly elements of parking lots should be concealed. The planting of ground
cover or various types of pavements should be used to prevent dust and erosion,
and the unnecessary destruction of existing healthy trees should be avoided.
Lighting for development should be adequate to meet safety requirements as
specified by the engineering and building departments, and provide shielding to
prevent spill‐over light to adjoining property owners.
The design quality of the development is consistent with the high‐quality standards
encouraged by City Staff. Both the high‐density structures and townhome/rowhouse
buildings meet the design qualities of a Mediterranean design development. The
architectural style is consistent throughout the development. Further, the planting plan is
consistent with the intent of the Heart of the City Specific Plan guidelines. Unsightly uses
such as loading and trash pickup have been placed within the buildings away from view of
neighboring uses. Utility installation has been designed to be screened by landscaping and
or incorporated into the building design. The final lighting for the development will be
reviewed as part of the review of the project construction documents to ensure that they
meet safety requirements while avoiding spill‐over light to adjacent properties.
c) The number, location, color, size, height, lighting and landscaping of outdoor
advertising signs and structures shall minimize traffic hazards and shall positively
affect the general appearance of the neighborhood and harmonize with adjacent
development; and
Signage approval is not included in this application.
d) With respect to new projects within existing residential neighborhoods, new
development should be designed to protect residents from noise, traffic, light and
visually intrusive effects by use of buffering, setbacks, landscaping, walls and other
appropriate design measures.
The project does not abut any existing residential development. The multi‐family
development across Mary Avenue (Glenbrook Apartments) will be buffered from any
impacts because the project has been designed to maintain trees along the frontage and has
been designed with adequate parking on‐site. The buildings have been designed with
Resolution No. 20‐107
Page 5
setbacks from the curb line that what is required within the General Plan and Heart of the
City Specific Plan.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Environmental Impact Report and the Mitigation
Monitoring and Reporting Program for the Project (EA‐2018‐04), subject to the conditions
which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the
conditions contained in all other Resolutions approved for this Project,
The application for an Architectural and Site Approval, Application No. ASA‐2018‐05, is
hereby approved, and that the subconclusions upon which the findings and conditions
specified in this Resolution are based are contained in the Public Hearing record
concerning Application no. ASA‐2018‐05 as set forth in the Minutes of the City Council
Meeting of August 18, 2020 Meeting, and are incorporated by reference as though fully
set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222,
VTM‐1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may
be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse
units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR‐2018‐22, EXC‐2019‐03, TM‐2018‐
03, DP‐2018‐05, U‐2019‐03 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
Resolution No. 20‐107
Page 6
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. FINAL ARCHITECTURAL DETAILS AND EXTERIOR BUILDING MATERIALS
The final building exterior plan shall closely resemble the details shown on the
original approved plans. The final building design and exterior treatment plans
(including but not limited to details on exterior color, materials, architectural
treatments, doors, windows, lighting fixtures, and/or embellishments) shall be
reviewed and approved by the Director of Community Development prior to issuance
of building permits and through an in‐field mock‐up of colors prior to application to
ensure quality and consistency. Any exterior changes determined to be substantial by
the Director of Community Development shall either require a modification to this
permit or a new permit based on the extent of the change.
6. LANDSCAPE INSTALLATION REPORT
The project is subject to all provisions delineated in the Landscape Ordinance (CMC,
Chapter 14.15). A landscape installation audit shall be conducted by a certified
landscape professional after the landscaping and irrigation system have been
installed. The findings of the assessment shall be consolidated into a landscape
installation report.
The landscape installation report shall include, but is not limited to: inspection to
confirm that the landscaping and irrigation system are installed as specified in the
landscape and irrigation design plan, system tune‐up, system test with distribution
uniformity, reporting overspray or run‐off that causes overland flow, and preparation
of an irrigation schedule.
The landscape installation report shall include the following statement: “The
landscape and irrigation system have been installed as specified in the landscape and
irrigation design plan and complies with the criteria of the ordinance and the permit.”
7. LANDSCAPE AND IRRIGATION MAINTENANCE
Per the Landscape Ordinance (CMC, Chapter 14.15), a maintenance schedule shall be
established and submitted to the Director of Community Development or his/her
designee, either with the landscape application package, with the landscape
installation report, or any time before the landscape installation report is submitted.
a. Schedules should take into account water requirements for the plant establishment
period and water requirements for established landscapes.
b. Maintenance shall include, but not be limited to the following: routine inspection;
pressure testing, adjustment and repair of the irrigation system; aerating and de‐
Resolution No. 20‐107
Page 7
thatching turf areas; replenishing mulch; fertilizing; pruning; replanting of failed
plants; weeding; pest control; and removing obstructions to emission devices.
c. Failed plants shall be replaced with the same or functionally equivalent plants that
may be size‐adjusted as appropriate for the stage of growth of the overall
installation. Failing plants shall either be replaced or be revived through
appropriate adjustments in water, nutrients, pest control or other factors as
recommended by a landscaping professional.
8. LANDSCAPE PROJECT SUBMITTAL
Prior to issuance of building permits, the applicant shall submit a full Landscape
Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape
Ordinance, for projects with landscape area 500 square feet or more or elect to
submit a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for
projects with landscape area between 500 square feet and 2,500 square feet. The
Landscape Documentation Package or Prescriptive Compliance Application shall be
reviewed and approved to the satisfaction of the Director of Community
Development prior to issuance of building permits, and additional requirements per
sections 14.15.040 D, E, F, and G or 14.15.050 E, F, G, H, and I will be required to be
reviewed and approved prior to final inspections.
9. SOIL ANALYSIS REPORT
A soils analysis report shall document the various characteristics of the soil (e.g.
texture, infiltration rate, pH, soluble salt content, percent organic matter, etc) and
provide recommendations for amendments as appropriate to optimize the
productivity and water efficiency of the soil.
The soil analysis report shall be made available to the professionals preparing the
landscape and irrigation design plans in a timely manner either before or during the
design process. A copy of the soils analysis report shall be submitted to the Director
of Community Development as part of the landscape documentation package.
10. LANDSCAPE AND IRRIGATION PLANS
The applicant shall submit detailed landscape and irrigation plans to be reviewed and
approved by Community Development prior to issuance of building permits. The
landscape plan shall include water conservation and pesticide reduction measures in
conformance with Chapter 14.15, Landscape Ordinance, and the pesticide control
measures referenced in Chapter 9.18, Stormwater Pollution Prevention and
Watershed Protection, of the Cupertino Municipal Code.
Resolution No. 20‐107
Page 8
11. SIGN PROGRAM
A sign program is required for this project. The sign program shall be approved by
the Director of Community Development prior to issuance of sign permits.
12. SITE IMPROVEMENTS
All proposed site improvements shall be completed prior to final occupancy of any
structures approved in conjunction with the project.
13. TRANSFORMERS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
14. TREE PROTECTION
As part of the demolition or building permit drawings, a tree protection plan shall be
prepared by a certified arborist for the trees to be retained. In addition, the following
measures shall be added to the protection plan:
For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
No parking or vehicle traffic shall be allowed under root zones, unless using buffers
approved by the Project Arborist.
No trenching within the critical root zone area is allowed. If trenching is needed in
the vicinity of trees to be retained, the City’s consulting arborist shall be consulted
before any trenching or root cutting beneath the dripline of the tree.
Wood chip mulch shall be evenly spread inside the tree projection fence to a four‐
inch depth.
Tree protection conditions shall be posted on the tree protection barriers.
Retained trees shall be watered to maintain them in good health.
A covenant on the property shall be recorded that identifies all the protected trees,
prior to final occupancy.
The tree protection measures shall be inspected and approved by the certified arborist
prior to issuance of building permits. The City’s consulting arborist shall inspect the
trees to be retained and shall provide reviews prior to issuance of demolition, grading
Resolution No. 20‐107
Page 9
or building permits. A report ascertaining the good health of the trees mentioned
above shall be provided prior to issuance of final occupancy.
15. UTILITY STRUCTURE PLAN
Prior to issuance of building permits, the applicant shall work with staff to provide a
detailed utility plan to demonstrate screening or undergrounding of all new utility
structures [including, but not limited to backflow preventers (BFP), fire department
connections (FDC), post‐indicator valves (PIV), and gas meters] to the satisfaction of
the Director of Community Development, Public Works, Fire Department, and
applicable utility agencies.
16. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
17. INDEMNIFICATION
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
Resolution No. 20‐107
Page 10
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
18. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
RESOLUTION NO. 20‐108
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A USE PERMIT TO ALLOW A MIXED USE
DEVELOPMENT ON A PRIORITY HOUSING SITE THAT EXCEEDS
THE NUMBER OF RESIDENTIAL UNITS DESIGNATED FOR THAT
PRIORITY HOUSING SITE AS WELL AS ALLOWING MEMORY
CARE UNITS WITHIN A PORTION OF A SENIOR HOUSING
FACILITY LOCATED AT 21267 STEVENS CREEK BOULEVARD
(APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: U‐2019‐03
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR A USE PERMIT:
WHEREAS, the City of Cupertino received an application for a Use Permit as described
in Section I of this resolution; and
WHEREAS, The Westport Cupertino Mixed‐Use Project (“Project”), including the Use
Permit, is fully described and analyzed in the Initial Study and proposed Final
Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or “Final
EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the Project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
Resolution No. 20‐108
Page 2
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate (“BMR”) units from Building 1
to an additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to
provide additional space for terraces on the tops of those buildings, and changing the
unit mix in Buildings 2 to include two‐bedroom units in addition to sudios and one‐
bedroom units; and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the Revised Senior Enhanced Project was reviewed by the Planning
Commission on July 14, 2020 for recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Architectural and Site
Approval; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Heart of the City
Exception; and
Resolution No. 20‐108
Page 3
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Vesting tentative Map,
the City Council adopted Resolution No. 20‐105 certifying the EIR, , adopting and
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Use Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
a) The proposed development, at the proposed location, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
With the conditions of approval, approved Specific Plan exception, and approved density
bonus, parking reduction, waivers, and incentive/concession, the project is consistent with the
densities and land uses as allowed in the General Plan, Zoning Ordinance, and Heart of the
City Specific Plan, and the project will not be detrimental or injurious to property or
improvements in the vicinity, and will not be detrimental to the public health, safety, general
welfare, or convenience. The EIR also concludes that, with mitigation, the Project will have no
significant environmental impacts.
b) The proposed development will be located and conducted in a manner in accord with
the Cupertino General Plan and the purpose of the City’s zoning ordinances.
With the conditions of approval, approved Specific Plan exception, and the approved density
bonus, parking reduction, and waivers the proposed development is in conformance with the
Cupertino General Plan, Municipal Code, and Heart of the City Specific Plan Requirements.
The Project is also consistent with the existing land use designations (Commercial,
Residential), Municipal Code and with other code requirements as demonstrated in the staff
report.. Further, memory care facilities and similar residential care uses are ancillary to senior
housing developments as evident by similar developments in the City such as The Forum and
Sunnyview.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the EIR and the Mitigation Monitoring and Reporting
Program for the Project (EA‐2018‐04), subject to the conditions which are enumerated in
Resolution No. 20‐108
Page 4
this Resolution beginning on PAGE 2 thereof, and those contained in all other Resolutions
approved for this Project,
The application for a Use Permit, Application No. U‐2019‐03, is hereby approved, and
that the subconclusions upon which the findings and conditions specified in this
Resolution are based are contained in the Public Hearing record concerning Application
no. U‐2019‐03 as set forth in the Minutes of the City Council Meeting of August 18, 2020
Meeting, and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222, VTM‐
1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may be
amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks, property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
require additional review, including any misrepresentation related to the note on the
Vesting Tentative Map that the Townhouse/Rowhouse units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR‐2018‐22, EXC‐2019‐03, TM‐2018‐
03, ASA‐2018‐05, DP‐2018‐05 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. RESIDENTIAL CARE FACILITY
The memory care facility shall remain in operation in accordance with the City of
Cupertino’s Municipal Code land use restrictions for the Residential Care Use Class,
including but limited any required State and County licensing for its operation.
6. USE APPROVAL AND PROJECT AMENDMENTS
Approval is hereby granted to allow a residential density above the allocation for a
Resolution No. 20‐108
Page 5
Priority Housing Site and for a memory care unit in Building 1 as labeled on the
project plans. The Planning Commission shall review amendments to the project
considered major by the Director of Community Development.
7. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
8. INDEMNIFICATION
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
Resolution No. 20‐108
Page 6
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.
9. 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.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
RESOLUTION NO. 20-109
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A VESTING TENTATIVE MAP TO ALLOW A MIXED
USE DEVELOPMENT ON TWO CREATED PARCELS AND 88
TOWNHOME AND ROWHOUSE CONDOMINIUMS LOCATED AT
21267 STEVENS CREEK BOULEVARD (APN: 326-27-042, -043)
SECTION I: PROJECT DESCRIPTION
Application No.: TM-2018-03
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326-27-042, -043)
SECTION II: FINDINGS FOR A TENTATIVE MAP:
WHEREAS, the City of Cupertino received an application for a Vesting Tentative Map as
described in Section I of this resolution; and
WHEREAS, The Westport Cupertino Mixed-Use Project (“Project”), including the
Vesting Tentative Map, is fully described and analyzed in the Initial Study and proposed
Final Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or
“Final EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5-0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5-0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA-2018-04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5-0 vote that
the City Council approve the Vesting Tentative Map (TM-2018-03), in substantially
Resolution No. 20-109
Page 2
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP-2018-05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA-2018-05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U-2019-03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR-2018-22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC-2019-03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Enhanced Senior
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two-bedroom units in addition to studios and one-bedroom units;
and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3-2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Vesting Tentative Map,
the City Council adopted Resolution No. 20-105 certifying the EIR, adopting and
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tentative Map; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
Resolution No. 20-109
Page 3
a. That the proposed subdivision map is consistent with the City of Cupertino General
Plan.
The subject property is consistent with the General Plan since the property is permitted to have
up to 30 dwelling units an acre and the project qualifies for a density bonus. The proposed
development is consistent with the intent of the policies of the General Plan for a high density
mixed-use development on this site.
b. That the design and improvements of the proposed subdivision are consistent with
the General Plan.
The off-site improvements are consistent with the City’s General Plan policies related to
pedestrian and bicycle safety etc. by improving Stevens Creek Boulevard, minimizing curb-
cuts, and requiring an urban canopy within the public right-of-way. The project is also
consistent with the General Plan's design requirements, since the project qualifies for waivers
for height and slope setback.
c. That the site is physically suitable for the type of development contemplated under
the approved subdivision.
The proposed subdivision is compatible with the adjoining land uses and no physical
constraints are present that would conflict with anticipated land use development. There are
no topographical anomalies that differentiate this property from adjacent properties. The site
is located on the valley floor, as well as not listed within any environmentally sensitive zone.
d. That the site is physically suitable for the intensity of development contemplated
under the approved subdivision.
The subject property is physically suitable in size and shape in conformance to development
standards and is appropriately configured to accommodate a multi-unit mixed-used
development.
e. That the design of the subdivision or the proposed improvements are not likely to
cause substantial environmental damage nor substantially and avoidably injure fish
and wildlife or their habitat.
The design of the subdivision and proposed improvements are not likely to substantially injure
fish and wildlife or their habitat because the property is a developed site and located in an
urbanized area where residential land use is allowed. The EIR concluded that all potential
environmental impacts will be mitigated to a level of insignificance.
f. That the design of the subdivision or the type of improvements associated therewith
are not likely to cause serious public health problems.
The proposed subdivision design and improvements are not likely to cause serious public health
problems. The proposed development is consistent with the intent of the policies of the General
Resolution No. 20-109
Page 4
Plan for a high density mixed-use development on this site, and the on-site and off-site
improvements improve neighborhood walkability through improved sidewalk construction
with size-appropriate driveway cuts and street and private trees planting.
g. That the design of the subdivision and its associated improvements will not conflict
with easements acquired by the public at large for access through or use of property
within the proposed subdivision.
No easement or right-of-way exists currently that would be impeded or conflict with the
proposed subdivision.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the EIR and the Mitigation Monitoring and Reporting
Program for the Project (EA-2018-04), subject to the conditions which are enumerated in
this Resolution beginning on PAGE 2 thereof, and those contained in all other Resolutions
approved for this Project,
The application for a Vesting Tentative Map, Application No. TM-2018-03, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. TM-2018-03 as set forth in the Minutes of the City Council Meeting of
August 18, 2020 Meeting, and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001-A222, VTM-
1-VTM-6, and L100-L300, drawn by C2K, and Kimley Horn except as may be
amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks, property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
Resolution No. 20-109
Page 5
require additional review, including any misrepresentation related to the note on the
Vesting Tentative Map that the Townhouse/Rowhouse units will be for-sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR-2018-22, EXC-2019-03, U-2019-
03, ASA-2018-05, DP-2018-05 and EA-2018-04 shall be applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. RESIDENTIAL CONDOMINIUM MAP REQUIRED
Prior to the issuance of building permits, the applicant must record a Final
Condominium Map with the County of Santa Clara after approval by the Director of
Public Works.
6. BUS STOP DUCKOUT
The applicant will work with the Public Works staff to relocate the bus stop to a
location along Stevens Creek Boulevard that will not conflict with the intersection of
Mary Avenue and Stevens Creek Boulevard.
7. RECIPROCAL INGRESS/EGRESS EASEMENT
The applicant shall record a private reciprocal ingress and egress easement for
vehicular and pedestrian access over the drive aisles and sidewalks onsite to facilitate
movement between the parcels. Easements shall be reserved on the Final Map or
sequentially with the map at the time of Final Map recordation.
8. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
9. INDEMNIFICATION
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
Resolution No. 20-109
Page 6
the project, the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs awarded
against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities, and
expenses incurred in connection with such proceeding whether incurred by the
Applicant, the City, or the parties initiating or bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys’ fees and costs incurred in defense of the litigation. Such attorneys’ fees and
costs shall include amounts paid to the City’s outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys’ fees, or costs awards, including attorneys’ fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
10. 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.
CITY ENGINEER'S CERTIFICATE OF
ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS
(Section 66474.18 California Government Code)
I hereby certify that the engineering and surveying conditions specified in Section IV. of
this Resolution conform to generally accepted engineering practices.
Resolution No. 20-109
Page 7
_____________________________________
Chad Mosley, Assistant Director of Public Works
City Engineer CA License 66077
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
RESOLUTION NO. 20‐110
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A HEART OF THE CITY EXCEPTION TO ALLOW A REDUCTION
OF THE RETAIL REQUIREMENT FOR BUILDINGS FRONTING STEVENS CREEK
BOULEVARD TO ACCOMMODATE A MIXED‐USED DEVELOPMENT
CONSISTING OF 267 HOUSING UNITS (88 ROWHOUSE/TOWNHOMES, 179
SENIOR APARTMENTS, OF WHICH INCLUDE 48 SENIOR AFFORDABLE
APARTMENTS), 27 MEMORY CARE LICENSED ASSISTED LIVING RESIDENCES
(“MEMORY CARE RESIDENCES”), AND 20,000 SQUARE FEET OF COMMERCIAL
SPACE LOCATED AT 21267 STEVENS CREEK BOULEVARD
(APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: EXC‐2019‐03
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR HEART OF THE CITY EXCEPTION:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Heart of the City Exception as described in Section I of this resolution; and
WHEREAS, The Westport Cupertino Mixed‐Use Project (“Project”), including the Heart
of the City Exception, is fully described and analyzed in the Initial Study and proposed
Final Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or
“Final EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
Resolution No. 20‐110
Page 2
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two‐bedroom units in addition to studios and one‐bedroom units;
and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Architectural and Site
Approval; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
Resolution No. 20‐110
Page 3
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Development Permit,
the City Council adopted Resolution No. 20‐105 certifying the EIR, adopting and
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Heart of the City Exception; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposed development is otherwise consistent with the City’s General Plan and
with the goals of this specific plan and meets one or more of the criteria for an
exception for reasons to provide design flexibility in situations when small lot size,
unusually shaped parcels, or unique surrounding land uses make it difficult to adhere
to the development standards and where all efforts to meet the standards have been
exhausted.
The project site is located along Stevens Creek Boulevard (identified Priority
Development Area), surrounded by a mix of uses, proximity to services, and access to
public transportation makes it conducive to a residential development. However, the
location of the project site is constrained by the fact that the Stevens Creek Boulevard
frontage is adjacent to the onramp for Highway 85. This would discourage pedestrian
traffic and reduce the visibility of future retail tenants significantly limiting the
viability for commercial use. With the approved density bonus and associated waivers,
the project is consistent with the General Plan. Other than this requested exception,
the project is consistent with the Heart of the City Specific Plan.
2. The proposed development will not be injurious to property or improvements in the
area nor be detrimental to the public health and safety.
The project site is designated as a Priority Housing Site in the City’s Housing Element.
The location is surrounded by similar urban uses and, with the approved density bonus
and associated waivers and incentive/concession, the project is consistent with the
General Plan for density, landscaping, private outdoor space, access, streetscape,
setbacks, and design. The existing shopping center will be developed with a mix of
residential housing stock including affordable, age‐restricted apartment complexes and
market rate townhome/rowhouse condominiums built to the current building and fire
safety codes. Therefore, the project will not be detrimental or injurious to properties or
improvements in the vicinity, and will not be detrimental to the public health, safety,
general welfare, or convenience.
Resolution No. 20‐110
Page 4
3. The proposed exception will not result in a hazardous condition for pedestrian and
vehicular traffic.
The exception requested for the proposed project does not relate to the creation of a
hazardous condition for pedestrian and vehicular traffic.
4. The proposed development has legal access to public streets and public services are
available to serve the development.
The proposed project proposes the installation of a two‐way driveway to allow access to
Stevens Creek Boulevard and Mary Avenue, public streets, that the property has
frontages along. Additionally, all services necessary for development are available to
serve the development. The proposed project will provide the appropriate hook‐ups for
access.
5. The proposed development requires an exception, which involves the least
modification of, or deviation from, the development regulations prescribed in this
chapter necessary to accomplish a reasonable use of the parcel.
The proposed development has met all other development standards for height, parking,
landscaping, density, and building placement as mandated by the General Plan, Heart
of the City Specific Plan, and Zoning Ordinance, with the exception of those the
applicant has requested density bonus waivers and incentive /concession for. The only
regulation it does not meet is the provision of at least 75% of the building frontage
along Stevens Creek Boulevard and 50% of the rear of the building be occupied by uses
that allow direct retailing of goods. The development is providing retail frontage along
Mary Avenue where it is not required by the Heart of the City Specific Plan, in an
equivalent size and scope that would have been needed to meet the retail frontage
requirement along Stevens Creek Boulevard.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Environmental Impact Report and the Mitigation
Monitoring and Reporting Program for the Project (EA‐2018‐04), subject to the conditions
which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the
conditions contained in all other Resolutions approved for this Project,
The application for Heart of the City Exception, Application No. EXC‐2019‐03, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. EXC‐2019‐03 as set forth in the Minutes of the City Council Meeting of
August 18, 2020 Meeting, and are incorporated by reference as though fully set forth
herein.
Resolution No. 20‐110
Page 5
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222,
VTM‐1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may
be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse
units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR‐2018‐22, TM‐2018‐03, TM‐2018‐
03, DP‐2018‐05, U‐2019‐03 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. EXCEPTION
A Heart of the City Exception is granted to allow the construction of the proposed
project with a maximum of 40% of the building frontage along Stevens Creek
Boulevard and 75% of the rear of the building to be occupied by non‐retail uses.
6. PUBLIC ACCESSIBILITY TO RETAIL SPACES
All proposed retail space shall be open to the public for the consumption of any goods
or services offered in the mixed‐use buildings.
7. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
Resolution No. 20‐110
Page 6
8. INDEMNIFICATION
To the fullest extent permitted by law, the applicant shall agree to indemnify, defend
with the attorneys of the City’s choice, and hold harmless the City, its City Council,
and its officers, employees, and agents (collectively, the “indemnified parties”) from
and against any liability, claim, action, cause of action, suit, damages, judgment, lien,
levy, or proceeding (collectively referred to as “proceeding”) brought by a third party
against one or more of the indemnified parties or one or more of the indemnified
parties and the applicant related to any Ordinance, Resolution, or action approving
the project, the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs awarded
against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities, and
expenses incurred in connection with such proceeding whether incurred by the
Applicant, the City, or the parties initiating or bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys’ fees and costs incurred in defense of the litigation. Such attorneys’ fees and
costs shall include amounts paid to the City’s outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys’ fees, or costs awards, including attorneys’ fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
9. 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.
Resolution No. 20‐110
Page 7
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
RESOLUTION NO. 20‐111
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A TREE REMOVAL PERMIT TO REMOVE, RELOCATE, AND
REPLACE SEVENTY‐THREE (73) DEVELOPMENT TREES AT THE OAKS
SHOPPING CENTER TO ACCOMMODATE A MIXED‐USED DEVELOPMENT
CONSISTING OF 267 HOUSING UNITS (88 ROWHOUSE/TOWNHOMES, 179
SENIOR APARTMENTS, OF WHICH INCLUDE 48 SENIOR AFFORDABLE
APARTMENTS), 27 MEMORY CARE LICENSED ASSISTED LIVING RESIDENCES
(“MEMORY CARE RESIDENCES”), AND 20,000 SQUARE FEET OF COMMERCIAL
SPACE LOCATED AT 21267 STEVENS CREEK BOULEVARD
(APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: TR‐2018‐22
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR TREE REMOVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Tree Removal Permit as described in Section I of this resolution; and
WHEREAS, the Westport Cupertino Mixed‐Use Project (“Project”), including the Tree
Removal Permit, is fully described and analyzed in the Initial Study and proposed Final
Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or “Final
EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
Resolution No. 20‐111
Page 2
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two‐bedroom units in addition to studios and one‐bedroom units;
and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Tree Removal Permit; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Vesting tentative Map,
the City Council adopted Resolution No. 20‐105 certifying the EIR, adopting and
Resolution No. 20‐111
Page 3
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tree Removal Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
a) That the location of the trees restricts the economic enjoyment of the property by
severely limiting the use of property in a manner not typically experienced by
owners of similarly zoned and situated property, and the applicant has
demonstrated to the satisfaction of the approval authority that there are no
reasonable alternatives to preserve the tree(s).
In order to accommodate for the new development’s residential and mixed‐use buildings,
underground garage, walkways and internal street network to public open spaces, the
existing trees cannot be preserved in their locations. The applicant proposes replacement
trees throughout the site in excess of the conformance with the Municipal Code Ordinance
requirements and proposes to locate the replacements where tree coverage is needed, while
also proposing to relocate four of the Coast Live Oak Trees.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Environmental Impact Report and the Mitigation
Monitoring and Reporting Program for the Project (EA‐2018‐04), subject to the conditions
which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the
conditions contained in all other Resolutions approved for this Project,
The application for a Tree Removal Permit, Application No. TR‐2018‐22, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. TR‐2018‐22 as set forth in the Minutes of the City Council Meeting of
August 18, 2020 Meeting, and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Resolution No. 20‐111
Page 4
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222,
VTM‐1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may
be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse
units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. ASA‐2018‐05, EXC‐2019‐03, TM‐
2018‐03, DP‐2018‐05, U‐2019‐03 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. TREE REPLACEMENT SIZE
The applicant shall provide adequate tree replacements for trees proposed to be
removed in conformance with the replacement guidelines per Cupertino Municipal
Code Section 14.18.160. The size of the proposed replacement trees shall be modified
as follows to be consistent with the City’s Protected Tree Ordinance unless deemed
infeasible by the City’s Consulting Arborist:
a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with
one 24‐inch box tree;
b. Over 12 inches and up to 36 inches shall be replaced by two 24‐inch box tree or
one 36‐inch box tree; and
c. Over 36 inches shall be replaced with one 36‐inch box tree.
If it is determined that it is physically not feasible to plant the required replacements
trees, the Applicant may pay in‐lieu fees determined to be appropriate by the
Community Development Director.
6. ARBORIST REVIEW
Resolution No. 20‐111
Page 5
Prior to building permit issuance, the number, location and species of trees shall be
reviewed and approved by the City in consultation with the City’s Consulting
Arborist.
The replacement trees shall be planted prior to building permit final. The Applicant
shall provide the Department of Community Development adequate documentation,
including, but not limited to, photographs, receipts or invoices, to verify that
replacements have been planted. The City’s consulting arborist shall inspect the trees
after planting and a report ascertaining the good health of the trees mentioned above
shall be provided prior to issuance of final occupancy.
7. TREE PROTECTION
As part of the demolition or building permit drawings, a tree protection plan shall be
prepared by a certified arborist for the trees to be retained. In addition, the following
measures shall be added to the protection plan:
For trees to be retained, chain link fencing and other root protection shall be
installed around the dripline of the tree prior to any project site work.
No parking or vehicle traffic shall be allowed under root zones, unless using
buffers approved by the Project Arborist.
No trenching within the critical root zone area is allowed. If trenching is
needed in the vicinity of trees to be retained, the City’s consulting arborist shall
be consulted before any trenching or root cutting beneath the dripline of the
tree.
Wood chip mulch shall be evenly spread inside the tree projection fence to a
four‐inch depth.
Tree protection conditions shall be posted on the tree protection barriers.
Retained trees shall be watered to maintain them in good health.
A covenant on the property shall be recorded that identifies all the protected
trees, prior to final occupancy.
The tree protection measures shall be inspected and approved by the certified arborist
prior to issuance of building permits. The City’s consulting arborist shall inspect the
trees to be retained and shall provide reviews prior to issuance of demolition, grading
or building permits. A report ascertaining the good health of the trees mentioned
above shall be provided prior to issuance of final occupancy.
8. PROTECTED TREES
The applicant understands that the replacement trees may not be removed without a
Tree Removal Permit and that they shall be responsible for ensuring the proper
Resolution No. 20‐111
Page 6
maintenance and care of the trees. The applicant shall also disclose the location and
species of all replacement trees on site upon sale of the property.
9. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
10. INDEMNIFICATION
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
Resolution No. 20‐111
Page 7
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
11. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020
RESOLUTION NO. 21-081
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING OF A VESTING TENTATIVE MAP TO REPLACE A
PREVIOUSLY APPROVED VESTING TENTATIVE MAP (TM-2018-03)
FOR THE WESTPORT CUPERTINO DEVELOPMENT PROJECT TO
CREATE A SEPARATE PARCEL FOR THE AGE RESTRICTED
SENIOR BELOW MARKET RATE BUILDING LOCATED AT 21267
STEVENS CREEK BOULEVARD (APN: 326-27-042, -043)
SECTION I: PROTECT DESCRIPTION
Application No.: TM-2021-002
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326-27-042, -043)
SECTION II: FINDINGS FOR A TENTATIVE MAP:
WHEREAS, the City of Cupertino received an application for a Vesting Tentative Map as
described in Section I of this resolution; and
WHEREAS, The Westport Cupertino Mixed -Use Project ("Project"), including the
Vesting Tentative Map, is fully described and analyzed in the Initial Study and Final
Environmental Impact Report (State Clearinghouse No. 2019070377) ("EIR" or "Final
EIR") for the Project; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, the City Council approved the Westport Cupertino
project, by adopting resolutions including the Development Permit Resolution No 20-
106, the Vesting Tentative Map Resolution No. 20-109, and Resolution No. 20-105
certifying the EIR, adopting and requiring as conditions of approval all of the mitigation
measures for the Project that are identified in the EIR and are within the responsibility
and jurisdiction of the City , and adopting the Mitigation Monitoring and Reporting
Program for the Project; and
WHEREAS, on April 21, 2021, the applicant submitted and requested the City to consider
a revised Vesting Tentative Map to decouple the senior below market rate building
Building 2) from the market rate senior housing development (Building 1) by creating a
third parcel to be occupied by Building 2, and to remove certain bicycle improvements
not required by the August 2020 approval; and
Resolution No. 21-081
Page 2
WHEREAS, other than the changes described above, the Vesting Tentative Map proposes
the same development and public improvements approved in August 2020, covering 8.1
gross acres and providing for 88 single-family units and 179 senior units, 48 of which will
be limited to below -market -rate rents; and
WHEREAS, the proposed changes to the project would not have any new or
substantially more severe significant environmental impacts; and
WHEREAS, on July 27, 2021 the Planning Commission recommended on a 4-0-1 (Chair
Wang absent) vote that the City Council approve the Vesting Tentative Map (TM-2021-
002), in substantially similar form to the Resolution presented (Resolution No. 6927)and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Vesting Tentative Map;
and
WHEREAS, the City Council of the City of Cupertino is the decision -making body for
this Resolution; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tentative Map; and
WHEREAS, the City Council finds as follows with regard to this application:
a. That the proposed subdivision map is consistent with the City of Cupertino General
Plan.
The subject property is consistent with the General Plan because the property is permitted to
have up to 30 dwelling units an acre and qualifies for a density bonus. The proposed
development is consistent with the intent of the policies of the General Plan for a high density
mixed -use development on this site.
b. That the design and improvements of the proposed subdivision are consistent with
the General Plan.
The off -site improvements are consistent with the City's General Plan policies related to
pedestrian and bicycle safety etc. by improving Stevens Creek Boulevard, minimizing curb -
cuts, and requiring an urban canopy within the public right-of-way. The project is also
consistent with the General Plan's design requirements, since the project qualifies for waivers
for height and slope setback.
c. That the site is physically suitable for the type of development contemplated under
the approved subdivision.
Resolution No. 21-081
Page 3
The proposed subdivision is compatible with the adjoining land uses and no physical
constraints are present that would conflict with anticipated land use development. There are
no topographical anomalies that differentiate this property from adjacent properties. The site
is located on the valley floor, and is not listed within any environmentally sensitive zone.
d. ' That the site is physically suitable for the intensity of development contemplated
under the approved subdivision.
The subject property is physically suitable in size and shape in conformance to development
standards and is appropriately configured to accommodate a multi -unit mixed -used
development.
e. That the design of the subdivision or the proposed improvements are not likely to
cause substantial environmental damage nor substantially and avoidably injure fish
and wildlife or their habitat.
The design of the subdivision and proposed improvements are not likely to substantially injure
fish and wildlife or their habitat because the property is already a developed site and located in
an urbanized area where residential land use is allowed. The EIR concluded that all potential
environmental impacts will be mitigated to a less than significant level.
f. That the design of the subdivision or the type of improvements associated therewith
are not likely to cause serious public health problems.
The proposed subdivision design and improvements are not likely to cause serious public health
problems. The proposed development is consistent with the intent of the policies of the General
Plan for a high density mixed -use development on this site, and the on -site and off -site
improvements improve neighborhood walkability through improved sidewalk construction
with size -appropriate driveway cuts and both street and private -land tree planting.
g. That the design of the subdivision and its associated improvements will not conflict
with easements acquired by the public at large for access through or use of property
within the proposed subdivision.
No easement or right-of-way exists currently that would be impeded or conflict with the
proposed subdivision.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the EIR and the Mitigation Monitoring and Reporting
Program for the Project (EA-2018-04), subject to the conditions which are enumerated in
this Resolution beginning on PAGE 2 thereof, and those contained in all other Resolutions
approved for this Project,
Resolution No. 21-081
Page 4
1. The City Council hereby exercises its independent judgment and determines that
approval of the Vesting Tentative Map, which creates a new lot on the project site
and does not include certain previously -proposed improvements would not have
any new or substantially more severe significant environmental impacts beyond
those identified in the Final EIR (State Clearinghouse 2019070377) previously
certified for the Westport Cupertino development project. The Final EIR identifies
mitigation measures to reduce the potentially significant environmental impacts of
the project to less than significant levels. These mitigation measures were adopted
and made conditions of project approval.
2. The application for a Vesting Tentative Map, Application No. TM-2021-002, is
hereby approved, subject to the conditions which are enumerated in this Resolution
beginning on PAGE 4 thereof, and those contained in all other Resolutions
approved for this Project in August 2020 other than Resolution No. 20-106 which is
superseded by this resolution, and the subconclusions upon which the findings and
conditions specified in this Resolution are based are contained in the Public Hearing
record concerning Application No. TM-2021-002 as set forth in the Minutes of the
City Council Meeting of September 7, 2021 Meeting, and are incorporated by
reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated December 09, 2020, consisting of 6 sheets
labeled as Westport, VTM-I-VTM-6, and Kimley Horn except as may be amended by
conditions in this resolution.
2. ACCURACY OF 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.
3. PRIOR APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR-2018-22, EXC-2019-03, U-2019-
03, ASA-2018-05, DP-2018-05 and EA-2018-04 shall be applicable to this approval
unless in conflict with the conditions of approval of this resolution.
Resolution No. 21-081
Page 5
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. RESIDENTIAL CONDOMINIUM MAP REQUIRED
Prior to issuance of a Temporary Certificate of Occupancy for of any units proposed
for condominium purposes, the applicant must file and receive approval of a
Condominium Map with the Department of Real Estate.
6. BUS STOP DUCKOUT
The applicant will work with the Public Works staff to relocate the bus stop to a
location along Stevens Creek Boulevard that will not conflict with the intersection of
Mary Avenue and Stevens Creek Boulevard.
7. RECIPROCAL INGRESS/EGRESS EASEMENT
The applicant shall record a private reciprocal ingress and egress easement for
vehicular and pedestrian access over the drive aisles and sidewalks onsite to facilitate
movement between the parcels. Easements shall be reserved on the Final Map or
created by separate instrument recorded at the time of Final Map recordation.
8. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
9. INDEMNIFICATION
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.
Resolution No. 21-081
Page 6
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and
costs shall include amounts paid to the City's outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
10. 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.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPT.
11. STREET IMPROVEMENTS & DEDICATION
Provide street dedication in fee title and frontage improvements along the project
frontage to the satisfaction of the Director of Public Works. The street improvement
plans must be submitted and approved by the City prior to the Final Map recordation.
Final Map recordation will not be contingent upon Caltrans approval for the proposed
improvements within Caltrans right of way, however the developer shall provide
adequate sureties (equivalent to 200% of the value of the improvements) for frontage
improvements prior to Final Map recordation. The Applicant will be required to
coordinate with Caltrans, in cooperation with the City, for approval of work located
within Caltrans' jurisdiction. If, at the time of project completion, the Applicant is
unable to obtain approval from Caltrans for improvements within their jurisdiction,
the Director of Public Works, at his/her sole discretion, may require the Applicant to
Resolution No. 21-081
Page 7
deposit fees to the City that are equivalent to the value of the work, as determined by
the City, as an option to fulfilling street improvement completion requirements.
Street improvements may include, but are not limited to, sidewalk, curb & gutter,
ADA ramps, city standard driveways, storm drain and sanitary sewer system, street
tree installations, street lights (new and/or relocate), bus stop, concrete bus pad, bus
shelter and other related bus improvements, upgrade the existing pedestrian warning
device at the mid -block crossing on Mary Avenue to rectangular rapid flashing
beacons (RRFB), pavement, signs and pavement markings, installation of a Class IV
Separated Bikeway between Mary Ave and Hwy 85 NB on -ramp per the approved
Cupertino Bicycle Transportation Plan Implementation along project frontage on
Stevens Creek Blvd. The installation will require traffic signal modifications at the
intersection of Stevens Creek Blvd & Hwy 85. The Applicant will be required to
coordinate with Caltrans, in cooperation with the City, for work located within
Caltrans' jurisdiction.
At the street improvement plan stage, the proposed bus stop design (shown on VTM-
6) on Stevens Creek Blvd., west of Mary Ave. shall be further reviewed and the final
design must be approved by the City of Cupertino prior to issuance of Final Map. The
City may require a bus duck out. As a result, additional easement area may be
required for the proposed bus shelter.
Project shall adhere to the Heart of the City Specific Plan for streetscape design
guidelines.
12. TRANSPORTATION
Prior to the Final Map recordation, the Applicant shall provide plans for
improvements along the project frontage and shall construct the proposed
improvements or provide security bonds to the satisfaction of the City Engineer. The
project shall construct Bicycle Transportation Plan improvements in the vicinity of the
property, including construction of a portion of the separated bicycle lanes along the
north side of Stevens Creek Blvd. between Hwy 85 & Mary Ave, or other related work
as determined by the Director of Public Works. The value of the improvements shall
be credited toward the Transportation Impact Fee required for the project. The
Applicant will be responsible for paying any Transportation Impact Fees in excess of
fee credits for improvements constructed.
13. PEDESTRIAN AND BICYCLE IMPROVEMENTS
The Applicant shall provide pedestrian and bicycle related improvements, including
but not limited to, pedestrian and Class III bike paths and bicycle racks throughout
the project site, and RRFB on Mary Ave consistent with the Cupertino Bicycle
Resolution No. 21-081
Page 8
Transportation Plan and the Pedestrian Transportation Guidelines, and as approved
by the Director of Public Works.
14. FINAL MAP
Prior to recordation of final map, all building(s) that straddle new property lines must
be removed. No structures are permitted to cross property lines.
Project is required to dedicate at the time of Final Map approval Public Access
Easements to facilitate on -site Class III bike and pedestrian paths as identified in the
Cupertino Bicycle Transportation Plan and Pedestrian Transportation Plan. Public
Access Easements will be required at the northwestern and southwestern property
corners, along the west side of the project site connecting north to south between
Stevens Creek Boulevard and Mary Avenue, and throughout the project site
connecting east to west.
15. GATEWAY MONUMENT SIGN
As part of the street improvement plans, the Applicant shall design and show
placement of a gateway monument sign in the median of Stevens Creek Boulevard,
east of Hwy 85. Prior to project completion, the Applicant shall fabricate and install
a gateway monument sign. The precise location, design and size of the gateway
monument sign shall be to the satisfaction of the Director of Public Works.
16. STREET LIGHTING INSTALLATION
As part of the street improvement plans, street lighting shall be designed to the
satisfaction of the Director of Public Works. Street lights shall be installed as designed
prior to project completion. Lighting fixtures shall be positioned so as to preclude
glare and other forms of visual interference to adjoining properties, and shall be no
higher than the maximum height permitted by the zone in which the site is located.
17. GRADING
Grading shall be performed to the satisfaction of the Director of Public Works in
accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications
and 404 permits maybe required. Please contact Army Corp of Engineers and/or
Regional Water Quality Control Board as appropriate.
18. STORM DRAINAGE
Prior to the Final Map approval, the Applicant shall address and mitigate the storm
drainage impact as the result of the environmental impact study.
Drainage shall be provided to the satisfaction of the Director of Public Works.
Hydrology and pre- and post -development hydraulic calculations must be provided
to indicate whether additional storm water control measures are to be constructed or
Resolution No. 21-081
Page 9
renovated. The storm drain system may include, but is not limited to, subsurface
storage of peak stormwater flows (as needed and identified in the environmental
study), bioretention basins, and Low Impact Development measures to reduce the
amount of runoff from the site and improve water quality.
All storm drain inlets shall be clearly marked with the words "No Dumping — Flows
to Creek" using permanently affixed metal medallions or equivalent, as approved by
the Environmental Programs Division.
Project will be required to install stormwater trash capture facilities that meet the
requirements established by Municipal Regional Permit. Trash capture devices shall
be located onsite and shall be situated so as to ensure trash carried by storm water is
collected onsite and does not flow directly to the City storm drain system. Applicant's
engineer shall design and size the trash capture devices to ensure that in the event the
devices cause an obstruction to onsite stormwater flow, onsite flooding does not
occur.
19. C.3 REQUIREMENTS
C.3 regulated improvements are required for all projects creating and/or replacing
10,000 S.F. or more of impervious surface (collectively over the entire project site). The
developer shall reserve a minimum of 4% of developable surface area for the
placement of low impact development measures, for storm water treatment, unless
an alternative storm water treatment plan, that satisfies C.3 requirements, is approved
by the Director of Public Works.
The Applicant must include the use and maintenance of site design, source control
and storm water treatment Best Management Practices (BMPs), which must be
designed per approved numeric sizing criteria. A Storm Water Management Plan and
Stormwater Management Facilities Operation, Maintenance. and Easement
Agreement are each required prior to issuance of building permits for site
improvements or as otherwise required at the City's sole discretion.
All storm water management plans are required to obtain certification from a City
approved third party reviewer.
20. SUBDIVISION AGREEMENT
The project developer shall enter into a subdivision 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 recordation of Final Map.
Fees:
Resolution No. 21-081
Page 10
a. Checking & Inspection Fees:
b. Grading Permit:
c. Transportation Impact Fee
As applicable):
d. Storm Drainage Fee:
e. Park Fee:
f. Map Review Fee:
g. Storm Management Plan Fee:
h. Street Tree
j. Power Cost:
Per current fee schedule ($4,898.00 or 5% of
improvement costs)
Per current fee schedule ($3,647.00 or 6% of
improvement costs)
Per current fee schedule
6,862/PM peak -hour trip;
Multi -Family - $4,215/unit;
and Commercial-$10.94/sf)
Per current fee schedule
multi-family-$3,871 per AC+$293/unit;
Commercial-10,423/AC)
Per current fee schedule
Senior - $30,000/DU
Other Residential - $105,000, $60,000 and/or
54,000/DU depending on density
Per current fee schedule
12,184 -Tract Map)
Per current fee schedule ($1,521)
By Developer
Based on the latest effective PG&E rate schedule approved by the PUC
Bonds:
Faithful Performance Bond:100% of Off -site and On -site Improvements
Labor & Material Bond:100% of Off -site and On -site Improvement
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 charged at that time will reflect the then current fee
schedule.
21. TRASH RECYCLING AND COMPOST ENCLOSURES
Trash enclosure plans must be designed in accordance with the City's "Public Works
Guidelines posted at www.cupertino.org/nowaste, and to the satisfaction of the
Environmental Programs Manager. Clearance by the Public Works Department is
required prior to obtaining a building permit. (CMC 9.18.210 H & K)
Resolution No. 21-081
Page 11
Applicant shall enter into an agreement with the City that indemnifies and holds
harmless both the City and the refuse and recycling collection company (Recology)
from and against any harm, damage or maintenance that may occur or become
necessary to onsite paving stone driveway surfaces.
22.OPERATIONS & MAINTENANCE AGREEMENT
Developer shall enter into an Operations & Maintenance Agreement with the City
prior to acceptance of street improvements, or as otherwise required at sole discretion
of the City. The Agreement shall include the operation and maintenance for
appurtenances in the public right-of-way, including non-standard facilities that may
include, but is not limited to, street trees, landscaping, sidewalk, and pavers.
23. UNDERGROUND UTILITIES
Developer shall comply with the requirements of the Underground Utilities
Ordinance No. 331 and other related Ordinances and regulations of the City of
Cupertino, and shall coordinate with affected utility providers for installation of
underground utility devices. Developer shall submit detailed plans showing utility
underground provisions. Said plans shall be subject to prior approval of the affected
Utility provider and the Director of Public Works.
24. TRANSFORMERS & CABINETS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
25. WATER BACKFLOW PREVENTERS
Domestic and Fire Water Backflow preventers and similar above ground equipment
shall be placed away from the public right of way and site driveways to a location
approved by the Cupertino Planning Department, Santa Clara County Fire
Department and the water company.
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.
Resolution No. 21-081
Page 12
27. NPDES CONSTRUCTION GENERAL PERMIT
When and where it is required by the State Water Resources Control Board (SWRCB),
the developer must obtain a Notice of Intent (NOI) from the SWRCB, which
encompasses preparation of a Storm Water Pollution Prevention Plan (SWPPP), use
of construction Best Management Practices (BMPs) to control storm water runoff
quality, and BMP inspection and maintenance.
28. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil
Engineer prior to issuance of permits for construction operations for the project. This
plan should include all erosion control measures used to retain materials on site.
Erosion control notes shall be stated on the plans.
29. WORK SCHEDULE
Every 6 months, the developer shall submit a work schedule to the City to show the
timetable for all grading/erosion control work in conjunction with this project.
30. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to
be approved by the City prior to issuance of permits for any work within the public
right of way. The plan shall include a temporary traffic control plan for work in the
right of way as well as a routing plan for all vehicles used during construction. All
traffic control signs must be reviewed and approved by the City prior to
commencement of work. The City has adopted Manual on Uniform Traffic Control
Devices (MUTCD) standards for all signage and striping work throughout the City.
31. STREET TREES
Prior to completion of the project, street trees shall be planted within the Public Right
of Way to the satisfaction of the Director of Public Works and shall be of a type
approved by the City in accordance with Ordinance No. 125.
32. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
33. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County Fire
Department prior to issuance of building permits. Clearance should include written
approval of the location of any proposed Fire Backflow Preventers, Fire Department
Connections and Fire Hydrants (typically Backflow Preventers should be located on
private property adjacent to the public right of way, and fire department connections
must be located within 100' of a Fire Hydrant).
Resolution No. 21-081
Page 13
34. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County Fire
Department as needed.
35. SAN TOSE WATER COMPANY CLEARANCE
Provide San Jose Water Company approval for water connection, service capability
and location and layout of water lines and backflow preventers prior to recordation
of Final Map or issuance of building permits, whichever comes first.
36. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall "quit claim" to the City all rights to pump, take or otherwise extract
water from the underground basin or any underground strata in the Santa Clara
Valley.
37. SANITARY DISTRICT
A letter of clearance for the project shall be obtained from the Cupertino Sanitary
District prior to recordation of Final Map or issuance of building permits, whichever
comes first.
38. UTILITY EASEMENTS
Clearance approvals from the agencies with easements on the property (including
PG&E, AT&T, and California Water Company, and/or equivalent agencies) will be
required prior to recordation of Final Map or issuance of building permits, whichever
comes first. Provide letters from PG&E and AT&T to state their concurrence with the
proposed easement relocation.
39. PARKLAND DEDICATION
The residential units within the project are subject to the payment of parkland fees in -
lieu of parkland dedication per CMC Chapter 13.08 and Chapter 18.24.
The Below Market Rate (BMR) program manual, which was last amended by City
Council on May 19, 2020 per Resolution 20-055, authorizes the waiver of park fees for
BMR units. Pursuant to Resolution 20-055, Parkland Dedication in -lieu fees for the 48
BMR units proposed for this project are hereby waived.
40. REVISION TO TENTATIVE MAP
Note on Sheet VTM-3, authorizing the City Manager with the discretion to terminate
the Public Pedestrian Access and Public Bicycle easements, shall be removed from the
map.
Resolution No. 21-081
Page 14
CITY ENGINEER'S CERTIFICATE OF
ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS
Section 66474.18 California Government Code)
I hereby certify that the engineering and surveying conditions specified in Se tion IV. of
this Resolution conform to generally accepted engineering practices.
oz _..__
Chad Mosley, Assistant Director of Publi Works
City Engineer CA License 66077
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this Th day of September, 2021, by the following vote:
Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
Darcy Paul, Ma D
City of Cupertino
ATTEST:
Kirsten Squarcia, City Clerk
Date
9 z
Date