DIR-2021-022 - Action LetterCITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: Benjamin Fu, Director of Community Development
Prepared by: Jeffrey Tsumura, Associate Planner
Date: May 9, 2022
Subject: Director's Minor Modification, DIR-2021-022, for site modifications and a
Tree Removal Permit, TR-2022-008, to allow for the removal and replanting
of 14 development trees to facilitate the construction of an art installation
located at 10600 N. Tantau Avenue (APN 316-06-062)
Chapter 19.164 of the Cupertino Municipal Code allows for administrative
approval of minor changes in a project. The Director reports his decision to the
City Council and Planning Commission in time to allow an appeal of the decision
within 14-calendar days.
BACKGROUND
The property is located at 10600 N. Tantau Avenue and contains the Apple Visitor Center
and a parking structure and is part of the Apple Campus 2. The property is bounded by
office buildings to the north, west, and south, and single-family residential uses in the
City of Santa Clara to the east.
Figure 1 Project Location
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DISCUSSION
The applicant, Rebecca Tolentino, on behalf of Apple, Inc., is requesting an approval to
allow for site modifications to facilitate a proposed public artwork project. The artwork
will feature a sculpture consisting of over 400 cast -glass cylinders made from sand
originating from deserts around the world. The columns will measure approximately 6'-
7" tall from grade and sit within concrete and steel foundations hidden below ground.
Three accessible pathways will direct visitors through the meandering pathways formed
by the columns (Figure 1).
or -
Figure I Artwork Rendering from N. Tantau Avenue
The artwork itself will be reviewed and approved by the Fine Arts Commission under a
separate permit (ASA-2022-001) on May 23, 2022. The artwork is required as a COA
under DP-2011-04, Condition #28, Public Art:
The applicant shall provide public art in accordance with General Plan Policy 2-
66. Public art shall be valued, at a minimum, one -quarter percent (1/4%) of the
total project budget, not to exceed $100,000. The applicant shall submit a public
art plan to be reviewed by the Fine Arts Commission prior to installation of the
public art.
Stormwater Control Plan:
The scope includes modifications to the stormwater control plan. The project site was
originally approved with four drainage management areas (DMA) on the project parcel.
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The project proposes to modify two of the DMAs. The DMA where the artwork is being
proposed will be eliminated. The DMA immediately north of the artwork will be
modified to ensure that the site remains compliant with the City's C3 drainage
requirements. The Public Works Department has reviewed the preliminary civil
drawings and conditions have been incorporated in the conditions of approval.
Artwork Location, Landscaping, and Tree Removal:
The proposed artwork
location is situated on the lot
to the north of the Apple Park
Visitor Center in an existing
olive tree grove (Figure 2).
The project area comprises a
footprint of approximately
1,642 square feet and
includes the sculpture and a
decomposed granite
pathway that provides three
access points to and through
the art site. All existing
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fescue groundcover affected Figure 2 Project Location
by construction will be restored like for like with the same grass plants, perennials, and
bulbs post -construction as indicated in the landscape specifications in the plan set.
Additionally, the proposed project will require the removal, temporary storage, and
relocation of 14 existing Olea europaea 'Swan Hill' (Swan Hill Olive Trees) from the path
of construction. These trees will be maintained in their existing condition by boxing and
storing on Apple property through the duration of construction and will be replanted
upon project completion. The arborist report, provided by Tyson Carroll (WE-10179A) of
Wood Architecture, has documented the process for tree preservation to ensure the
preservation of trees during storage and upon replanting. A condition of approval has
been added for the applicant to submit an arborist report within one year after replanting
to assess the status of the trees. Any trees determined to be dying or irreversibly damaged
as a result of the replanting and/or construction will be subject to replacement plantings
pursuant to CMC Chapter 14.18.160 Tree Replacement.
The proposed artwork is unique to the City of Cupertino and will be visible and accessible
to both visitors of the Apple Park Visitor Center as well as motorists and pedestrians
along N. Tantau Avenue. The artwork meets the intent of providing a lasting aesthetic
value to the community by creating a public amenity, attraction, and gathering space.
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The three accessible pathways, with the primary pathway connecting to the pedestrian
right-of-way along N. Tantau Avenue, directs visitors through meandering pathways
alongside the glass -cast cylinders to create an interactive experience as they walk through
the sculpture. Innovative methods of glasswork will be used to achieve the scale and a
level of durability required for this art piece and incorporates a style that is compatible
with the site by integrating its surrounding environment. There are no other proposed
modifications to the site, including but not limited to building envelope, design, or
height, parking lot circulation and access, landscaping, and any other site condition.
ACTION
The Director of Community Development deems the project categorically exempt from
environmental review under CEQA Guidelines, Article 19, Section 15301: Existing
Facilities and further deems the modification minor and approves the project with the
following conditions of approval:
1. APPROVED EXHIBITS
Approval is based on the full plan set submitted by Apple, Inc. dated October 9, 2021.
2. ACCURACY OF THE PROTECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks, property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
require additional review.
3. PREVIOUS CONDITIONS OF APPROVAL
All prior conditions of approval through past approvals shall remain in effect unless
superseded by or in conflict with subsequent conditions of approval and as
specifically amended by this Director's Minor Modification approval.
4. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR-2022-008 shall be applicable to
this approval. Should TR-2022-008 be denied, the proposed project will be required to
find an alternative site for the structure.
5. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a. Water all active construction areas at least twice daily and more often during
windy periods to prevent visible dust from leaving the site; active areas adjacent
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to windy periods; active areas adjacent to existing land uses shall be kept damp at
all times or shall be treated with non -toxic stabilizers or dust palliatives.
b. Cover all trucks hauling soil, sand, and other loose materials or require all trucks
to maintain at least two feet of freeboard;
c. Pave, apply water at least three times daily, or apply (non -toxic) soil stabilizers on
all unpaved access roads, parking areas and staging areas at construction sites.
d. Sweep streets daily, or more often if necessary (preferably with water sweepers) if
visible soil material is carried onto adjacent public streets.
e. The applicant shall incorporate the City's construction best management practices
into the building permit plan set.
6. NESTING BIRDS
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 Department of Fish and
Game Code.
a) Construction and tree removal/pruning activities shall be scheduled to avoid the
nesting season to the extent feasible. If feasible, tree removal and/or pruning shall
be completed before the start of the nesting season to help preclude nesting. The
nesting season for most birds and raptors in the San Francisco Bay area extends
from February 1 through August 31. Preconstruction surveys (described below)
are not required for tree removal or construction activities outside the nesting
period.
b) If construction activities and any required tree removal occur during the nesting
season (February 1 and August 31), a qualified ornithologist shall be required to
conduct surveys prior to tree removal or construction activities. Preconstruction
surveys shall be conducted no more than 14 days prior to the start of tree removal,
pruning or construction. Preconstruction surveys shall be repeated at 14-day
intervals until construction has been initiated in the area after which surveys can
be stopped. During this survey, the ornithologist shall inspect all trees and other
possible nesting habitats in and immediately adjacent to the construction areas for
nests.
c) If the survey does not identify any nesting birds that would be affected by
construction activities, no further mitigation is required. If an active nest
containing viable eggs or young birds is found sufficiently close to work areas to
be disturbed by these activities, their locations shall be documented and protective
measures implemented under the direction of the qualified ornithologist until the
nests no longer contain eggs or young birds.
d) 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
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ornithologist, 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. The active nest within an exclusion zone shall be monitored on a weekly
basis throughout the nesting season to identify signs of disturbance and confirm
nesting status. The radius of an exclusion zone may be increased 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 and buffers shall remain in effect until the young have left the nest and
are foraging independently or the nest is no longer active.
e) A final report on nesting birds and raptors, including survey methodology, survey
date(s), map of identified active nests (if any), and protection measures (if
required), shall be submitted to the Planning Manager, through the building
permit review process, and be completed to the satisfaction of the Community
Development Director prior to the start of grading.
7. NOISE MANAGEMENT DURING CONSTRUCTION
At least 10 days prior to commencement of construction activities, the
applicant/property owner shall post a sign 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. In addition
to the posted sign, the project applicant shall send notices of the planned activity by
first class mail to off -site businesses and residents within 250 feet of the project site at
least 10 days prior to the start of any demolition, ground disturbing, or construction
activities. If the authorized contractor's representative receives a complaint, they shall
investigate, take appropriate corrective action, and report the action to the City within
three business days of receiving the complaint. The applicant shall provide all
documentation required to determine compliance with Cupertino Municipal Code
Section 17.04.050.
8. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements of
Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for work
done more than 750 feet away from residential areas shall be limited to Monday
through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m.
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Grading, street construction, demolition or underground utility work within 750
feet of residential areas shall not occur on Saturdays, Sundays, holidays, and
during the nighttime period as defined in Section 10.48.053(b) of the Municipal
Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m.
and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed
on holidays as defined in Chapter 10.48 of the Municipal Code. Nighttime
construction is allowed if compliant with nighttime standards of Section 10.48 of
the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and subcontractors
of said construction restrictions.
The applicant shall comply with the above grading and construction hours and noise
limit requirements unless otherwise indicated
9. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction of
the approved project. The applicant shall provide information and plans to allow the
Building Official and the Fire Marshall or their designee that the proposed plans
comply with Building and Fire Codes in effect at the time of application for a building
permit.
10. EXTERIOR MATERIALS/TREATMENTS
The final exterior plan shall closely resemble the details shown on the original
approved plans. Final exterior treatment plan (including but not limited to details on
exterior color, materials, architectural treatments, doors, windows, lighting fixtures,
and/or embellishments) shall be reviewed and approved by the Director of
Community Development prior to issuance of building permits to ensure quality and
consistency. Any exterior changes determined to be substantial by the Director of
Community Development shall either require a modification to this permit or a new
permit based on the extent of the change.
11. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible for consulting other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
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12. DARK SKY COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final
plans in compliance with the approved lighting plans to comply with development
standards of Cupertino Municipal Code Section 19.102.040 Outdoor Lighting
Requirements. In the event changes are proposed from the approved plans, said
changes must be reviewed and approved by the Director of Community Development
or their designee. The applicant shall provide all documentation required to
determine compliance with the Municipal Code.
13. C.3 REQUIREMENTS
Project shall stratify C.3 stormwater treatment requirements. At building permit
application stage, the following items will need to be addressed:
a. Provided revised Stormwater Management Plan, including revised
stormwater treatment/BMP plan for the entire project site, revised
stormwater calculations, engineer's and 3rd party certifications, and revised
civil and landscape plans.
b. Amendment to the Stormwater Facilities Operation, Maintenance and
Easement Agreement as required.
14. INDEMNIFICATION
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City's choice, and hold harmless
the City, its City Council, and its officers, employees, and agents (collectively, the
"indemnified parties") from and against any liability, claim, action, cause of action,
suit, damages, judgment, lien, levy, or proceeding (collectively referred to as
"proceeding") brought by a third party against one or more of the indemnified parties
or one or more of the indemnified parties and the applicant related to any Ordinance,
Resolution, or action approving the project, the related entitlements, environmental
review documents, finding or determinations, or any other permit or approval
authorized for the project. The indemnification shall include but not be limited to
damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys'
fees, and other costs, liabilities, and expenses incurred in connection with such
proceeding whether incurred by the Applicant, the City, or the parties initiating or
bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and
costs shall include amounts paid to the City's outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
15. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions. Pursuant to
Government Code Section 66020(d) (1), these Conditions constitute written notice of
a statement of the amount of such fees, and a description of the dedications,
reservations, and other exactions. You are hereby further notified that the 90-day
approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you
fail to file a protest within this 90-day period complying with all of the requirements
of Section 66020, you will be legally barred from later challenging such exactions.
This Director's approval is effective until May 9, 2022. The 14-calendar-day appeal period
will expire on May 23, 2022.
Enclosures:
Attachment A: Plan set
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