RESOLUTION NO. FILE NO. T16-024

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1 RESOLUTION NO. A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN JOSE APPROVING A VESTING TENTATIVE MAP, SUBJECT TO CONDITIONS, TO CONSOLIDATE 25 PARCELS INTO THREE PARCELS AND TO RESUBDIVIDE ONE PARCEL (IDENTIFIED AS PARCEL 1 ON THE VESTING TENTATIVE MAP) INTO A MAXIMUM OF UP TO 550 UNITS CONSISTING OF APPROXIMATELY 306 RESIDENTIAL CONDOMINIUM UNITS AND 244 COMMERCIAL CONDOMINIUM UNITS, ON A 2.47 GROSS ACRE SITE, LOCATED AT THE NORTHWEST CORNER OF WEST SAN CARLOS STREET AND SOUTH MARKET STREET (180 PARK AVENUE) FILE NO. T WHEREAS, pursuant to the provisions of Chapter of Title 20 of the San José Municipal Code, on June 30, 2016, an application (File No. T16-024) was filed by the applicant, Dennis Randall for Insight King Wah, LLC, with the City of San José for a Vesting Tentative Map to consolidate 25 parcels into three parcels and to resubdivide one parcel (identified as Parcel 1 on the Vesting Tentative Map) into a maximum of up to 550 units consisting of approximately 306 residential condominium units and 244 commercial condominium units, on a 2.47 gross acre site, on that certain real property situated in the DC Downtown Primary Commercial Zoning District and located at the northwest corner of West San Carlos Street and South Market Street (180 Park Avenue, San José, California, which real property is sometimes referred to herein as the "subject property ); and WHEREAS, the subject property is all that real property more particularly described in Exhibit "A," entitled Legal Description, which is attached hereto and made a part hereof by this reference as if fully set forth herein; and // // // 1

2 WHEREAS, pursuant to and in accordance with Chapter of Title 20 of the San José Municipal Code, the Historic Landmarks Commission conducted a hearing on said application on October 5, 2016, notice of which was duly given; and WHEREAS, at said hearing, the Historic Landmarks Commission gave all persons full opportunity to be heard and to present evidence and testimony respecting said matter; and WHEREAS, at said hearing, the Historic Landmarks Commission concurred with the Historical Consultant s assessment that the project is compatible in design, scale, and character of the City Landmark, City National Civic, respecting said matter based on evidence and testimony; and WHEREAS, pursuant to and in accordance with Chapter of Title 20 of the San José Municipal Code, the Planning Commission conducted a hearing on said application on July 12, 2017, notice of which was duly given; and WHEREAS, at said hearing, the Planning Commission gave all persons full opportunity to be heard and to present evidence and testimony respecting said matter; and WHEREAS, at said hearing, the Planning Commission made a recommendation to the City Council respecting said matter based on evidence and testimony; and WHEREAS, pursuant to and in accordance with Chapter of Title 20 of the San José Municipal Code, this City Council conducted a hearing on said application notice of which was duly given; and WHEREAS, at said hearing, this City Council gave all persons full opportunity to be heard and to present evidence and testimony respecting said matter; and 2

3 WHEREAS, at said hearing this City Council received and considered the reports and recommendations of the City s Historic Landmarks Commission, the City s Planning Commission, and the City s Director of Planning, Building and Code Enforcement; and WHEREAS, at said hearing this City Council received in evidence a plan for the subject property entitled Museum Place, dated received on April 10, 2017, said plan is on file in the Department of Planning, Building and Code Enforcement and is available for inspection by anyone interested herein, and said development plan is incorporated herein by this reference, the same as if it were fully set forth herein; and WHEREAS, said public hearing before the City Council was conducted in all respects as required by the San José Municipal Code and the rules of this City Council; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SAN JOSÉ THAT: After considering all of the evidence presented at the Public Hearing, the City Council finds that the following are the relevant facts regarding this proposed project: 1. Site Description and Surrounding Uses. The 2.47 acre project site is currently developed with the 42,550 square foot Parkside Hall. The project site is directly east of the Tech Museum, north of the City National Civic Center (which includes McCabe Hall), west of a vacant site and the Hyatt Hotel/parking garage, and south of several office towers. 2. Project Description. On June 30, 2016, an application for a Special Use Permit, Site Development Permit, and Vesting Tentative Map was filed for the property located at 180 Park Avenue to allow for the demolition of Parkside Hall to permit the construction of a 24 story mixed-use development with 19,000 square feet of ground floor retail, 214,000 square feet of office, 60,000 square feet of museum expansion space, 184 hotel rooms, and 306 residential units, and the removal of 20 ordinance-sized trees on an approximately 2.47 gross acre site. The Special Use Permit and Vesting Tentative Map are to allow the consolidation of 25 parcels into three parcels and to resubdivide one parcel (identified as Parcel 1 on the Vesting Tentative Map) into a maximum of 550 units consisting of approximately 306 residential condominium units and up to 244 commercial condominium units. The block bounded by Park Avenue to the 3

4 north, South Market Street to the east, West San Carlos Street to the south, and the pedestrian paseo to the west is a complicated arrangement of 25 different parcels. In preparation for the development of the project parcel, the project applicant agreed to do the necessary mapping work to consolidate the existing 25 parcels into three defined legal parcels. This consolidation creates three legal parcels with Parcel 1 being defined as the new legal parcel for the proposed mixed-use project; Parcel 2 is defined as the new legal parcel for the land currently occupied by the Tech Museum; and Parcel 3 is defined as the new legal parcel for the land occupied by the City National Civic. Only Parcel 1 is being resubdivided at this time to allow a maximum of 550 units consisting of approximately 306 residential condominium units and up to 244 commercial condominium units. The project site has a DC Downtown Primary Commercial Zoning District designation and a Public/Quasi-Public General Plan Land Use/Transportation Diagram land use designation. 3. Request for Qualifications. The City is currently the land owner of the subject property (proposed Parcels 1, 2, and 3). On February 9, 2015, the City issued a Request for Qualifications (RFQ) for a collaborative public/private partnership with the City. The RFQ requested the development of a high-quality, high-rise, urban mixed-use project, which included the demolition, redesign, and replacement of Parkside Hall, a City-owned building. Parkside Hall is currently used for exhibition and banquet space for the adjacent Tech Museum. As such, the RFQ requested that 60,000 square feet of Tech Museum expansion space be incorporated into any proposed project design. On October 5, 2015, the City Council adopted Resolution No selecting Insight Realty Investments, Inc., dba Insight Realty Company (Insight) as the developer for this proposed development in response to the RFQ. The City and Insight have since been negotiating a written agreement for the disposition of Parcel 1, development of the proposed mixed-use project, and the written agreement shall be brought before the City Council for consideration concurrently with the Planning entitlements. 4. Historic Landmark. The project site is immediately adjacent to the City Landmark site, the City National Civic Auditorium, which was built in 1934 and opened to the public in The Civic Auditorium site was donated in 1933 by T.S. Montgomery, one of San José s most memorable developers. The project was funded by a local bond measure along with help from the federal government under the New Deal. From its opening in 1936, the Municipal Theater and Montgomery Theater became known as the Civic Auditorium. Jay McCabe was the first manager of the Auditorium. Mr. McCabe was responsible for growing the Civic s popularity as a first class entertainment space. As a tribute to Mr. McCabe, the 1964 addition to the City National Civic, as it is referred to today, was named McCabe Hall. This addition to the Civic Auditorium was San José s first direct attempt to provide a designated facility to draw the 4

5 emerging convention market to the Downtown area. The project began in December 1962 and was completed by February Today, McCabe Hall, which is part of the City National Civic Landmark, is used as exhibit and event space for various groups and activities. 5. General Plan Conformance. The subject site has a land use designation of Public/Quasi-Public on the General Plan Land Use/Transportation Diagram. This designation is used to designate public land uses, including schools, colleges, convention centers and auditorium, museums, governmental offices, and airports. Joint development projects which include public and private participation, such as a jointly administered public/private research institute or an integrated convention center/hotel/restaurant complex, are allowed. The proposed project is compatible with this land use designation in that it is a development project that will have joint public and private participation due to the integration of 60,000 square feet of Tech Museum expansion space, 100 dedicated museum parking spaces that will be integrated into the underground parking garage, and 184-unit hotel. While the Public/Quasi-Public land use designation does not explicitly discuss residential development, the multiple uses associated with this project will allow this project to meet the General Plan land use designation conformance. Furthermore, this project is consistent with the following General Plan goals and policies: a. Land Use Policy LU-1.1: Foster development patterns that will achieve a complete community in San José, particularly with respect to increasing jobs and economic development and increasing the City s jobs-toemployed resident ratio while recognizing the importance of housing and a resident workforce. Analysis: The development of more mixed-use residential uses in the Downtown area will foster a complete community with respect to putting people and amenities in an area where job growth is anticipated. As an identified Growth Area, Downtown is intended to be a place for people to live, work, and visit. In order to accomplish this goal, there needs to be more opportunities for people to physically live in Downtown, as well as have access to services and amenities within close proximity to make daily life convenient and enjoyable. This unique project will have office, hotel, retail, and residential uses contained in one building, providing the ultimate opportunity for people to live, work, and entertain in the same location. The project site is also directly adjacent to the Convention Center light rail station, making it a convenient location for residents who want to live near transit and commute to work. The proposed project is the type of development that will create a complete community by providing housing options for residents in the area, and supporting those residents with ground floor amenities and services in one place. 5

6 b. Land Use Goal LU-3: Strengthen Downtown as a regional job, entertainment, and cultural destination and as the symbolic heart of San José. Land Use Policy LU-3.4: Facilitate development of retail and service establishments in Downtown, and support regional- and local-serving businesses to further primary objectives of the General Plan. Land Use Policy LU-5.7: Encourage retail, restaurant, and other active uses as ground-floor occupants in identified growth areas and other locations with high concentrations of development. Analysis: In order to mature into the great place envisioned by the General Plan, Downtown projects need to facilitate the growth of Downtown as a regional job center, as well as a place for residents to live. High-rise development is anticipated as a way to create this synergy between residents, workers, and visitors. As larger residential projects are built in Downtown, more people will be in the area, which will foster pedestrian activity, transit ridership, and increased social activity in the Downtown. With more residents in the Downtown area, the success of retail will increase, encouraging new retail services and amenities to locate in the area, which not only provides a benefit to the residences, but also the commercial and office uses in the area. With more amenities available to their employees, more businesses will want to move into the area, creating an environment that is an attractive place to live as well as work. The proposed project s ground floor retail amenities will not only serve the residents in the tower, but also workers in the area. The office users in the tower will have the opportunity to take advantage of the hotel space for visiting employees and partners, and take advantage of the future retail amenities. c. Land Use Policy LU-3.1: Provide maximum flexibility in mixing uses throughout the Downtown Area. Support intensive employment, entertainment, cultural, public/quasi-public, and residential uses in compact, intensive forms to maximize social interaction; to serve as a focal point for residents, businesses, and visitors; and to further the Vision of the Envision San José 2040 General Plan. Analysis: The proposed project would create 19,000 square feet of retail space, 214,000 square feet of office space, 306 residential units, 60,000 square feet of museum expansion space, and 184 hotel rooms. This building is the ultimate mixed-use structure that provides a variety of uses in one space. This will serve as a focal point in the Downtown area, providing amenities for residents, worker, and visitors to the area. 6

7 d. Land Use Policy LU-16.1: Integrate historic preservation practices into development decision based upon fiscal, economic, and environmental sustainability. Analysis: The development of the proposed project took into consideration the project s impact on the adjacent historic resource. Many design decisions (site layout, materials, architectural quality) were made to ensure that there was no environmental impact on the adjacent City Landmark. As described below, there are several mitigation measures included in the Mitigation Monitoring and Reporting Program to ensure the compatibility of the project with the City s Historic Landmark. Additionally, the fiscal and economic viability of this project was taken into consideration as the project developed to ensure that the project would be successful. e. Transportation Policy TR-4.1: Support the development of amenities and land use and development types and intensities that increase daily ridership on the VTA, BART, Caltrain, ACE and Amtrak California systems and provide positive fiscal, economic, and environmental benefits to the community. Analysis: The project site is almost directly adjacent to the Convention Center Light Rail Station. This station is accessible via the pedestrian paseo that runs along the west façade of the project site. Pedestrians can cross at the mid-block cross walk on San Carlos to reach the station. There are also multiple Class II bicycle facilities along Park Avenue between Woz Way and Market Street, and west of Montgomery Street. There is ample bicycle and pedestrian connections to the site. By having residential and hotel units so close to a variety of transportation options, the proposed project encourages the use of transit and creates more opportunity for people to be car-free in the downtown area. f. Community Design Policy CD-1.26: Apply the Historic Preservation Goals and policies of the General Plan to proposals that modify historic resources or include development near historic resources. Analysis: This Special Use Permit was referred to the Historic Landmarks Commission on October 5, 2016 in accordance to San José Municipal Code Section Pursuant to that section, new structures exceeding one hundred fifty feet which are constructed within one hundred feet of a City Landmark must be reviewed by the Historic Landmarks Commission prior to consideration or approval of the development permit. The project site is located immediately north of the City National Civic Auditorium, which was adopted as a City Landmark by City Council Resolution No in 1986 (File No. HL86-40). After reviewing the proposed project, the Historic Landmarks Commission stated that the 7

8 proposed Museum Place Project design is compatible with the surrounding historic properties and does not adversely impact the Civic Auditorium which includes McCabe Hall, either directly or indirectly, supporting the General Plan s goals and policies related to development near historic resources (See Historic Preservation Discussion below for a more detailed discussion). g. Community Design Policy CD-2.9: Encourage adaptable space that can be used for multiple employment or public/quasi-public purposes. Analysis: The proposed project is constructing 60,000 square feet of Tech Museum expansion space that will be built into the base of the project s tower. The use for this space is not determined yet, but it will likely be exhibit space to expand the ability for the Tech Museum to provide new and exciting exhibits to the public. The Tech will also have ground floor street frontage on Park Avenue, to be used for retail opportunities, a café, or more exhibit space which will further add to the pedestrian experience in Downtown. The remaining proposed commercial condominium units will comply with Section of the Zoning Ordinance, which requires the minimum unit size for nonresidential condominium units to be seven hundred fifty square feet. This minimum size provides the flexibility for a variety of employment uses to move into the commercial tenant spaces in the project building. h. Downtown Urban Design Policy CD-6.7: Recognize Downtown s unique character as the oldest part, the heart of the City, and leverage historic resources to create a unique urban environmental there. Respect and respond to on-site and surrounding historic character in proposals for development. Analysis: As discussed above, the proposed project is located less than 100 feet from the City National Civic City Landmark (which includes McCabe Hall). Due to the proposed project s proximity to the landmark, the project was referred to the Historic Landmarks Commission for review. The projects impact on the historic structure was assessed. The Historic Landmarks Commission agreed with the historical consultant s assessment related to the proposed project and found the proposed design and construction of this project would not create an environmental impact and would not impair the historical significance of the landmark as discussed in the Historic Report, Appendix C of the Draft Supplemental Environmental Impact Report. i. Downtown Urban Design Policy CD-6.1: Recognize Downtown as the most vibrant urban area of San José and maximize development potential and overall density within the Downtown. 8

9 Downtown Urban Design Policy CD-6.2: Design new development with a scale, quality, and charter to strengthen Downtown s status as a major urban center. Downtown Urban Design Policy CD-6.6: Promote development that contributes to a dramatic urban skyline. Encourage variations in building massing and form, especially for buildings taller than 75 feet, to create distinctive silhouettes for the Downtown Skyline. Analysis: The proposed project has a Floor Area Ratio (FAR) of and a density of dwelling units per acre, making this a dense mixed-use project given the FAA restrictions on height for the parcel. This amount of density will contribute to Downtown s growth as a vibrant urban area, and help the City actualize its vision for the Downtown core. The proposed retail, office, and hotel square footage will contribute to the City s economic and fiscal priorities in the Downtown growth area. The project has undergone extensive design review so that its scale, quality, and character strengthen Downtown s status as an urban center, as discussed in the Design Guidelines conformance section below. 6. Zoning Ordinance Compliance. The Project is consistent with the regulations of the Zoning Ordinance in the following manner: a. Land Uses Land Uses. Pursuant to Section of the Zoning Ordinance, the proposed residential mixed-use tower is a permitted use in the DC Downtown Primary Commercial Zoning District with a Site Development Permit. b. Concurrent Review. Pursuant to Section of the Zoning Ordinance, whenever development applications for the same site have been filed for one or more development permits, such development permits may be reviewed and acted on in a unified process. The unified process shall use the procedures required for the highest level permit or approval. The highest level of approval required for this proposed project is the Vesting Tentative Map and therefore, the process for the Vesting Tentative Map was followed. The Vesting Tentative Map findings are made in this Vesting Tentative Map Resolution and the Site Development Permit and Special Use Permit findings are made in a separate City Council resolution. c. Setbacks and Height. The DC Downtown Primary Commercial Zoning District has no minimum setback requirements. Properties within this zoning district are not subject to height limits designated by the City, but are subject to the elevation restrictions prescribed under the FAA Regulations. The proposed project is consistent with the development standards in the DC Downtown Primary Commercial Zoning District as the project has zero 9

10 setbacks. The FAA made a No Hazard Determination on July 25, 2017, limiting the height to 270 feet, as proposed for the project. d. Parking Requirements. Residential units require one parking space per unit, and retail and commercial uses have no minimum parking requirement. Hotels require 0.35 parking space per guest room, and office requires one space per 1,000 square feet of floor area. The project is required to provide 585 parking spaces under the Zoning Ordinance provided the site is also allowed a 20% reduction for being within 2,000 feet of a light rail station. With the 20% reduction, the project is required to provide 468 parking spaces. The project is providing 482 parking spaces, exceeding the minimum parking requirement. Bicycle parking is required at one space per four units, requiring 78 bike parking spaces. The project is providing the 78 required bicycle parking spaces. 7. Conformance with the Historic Preservation Ordinance (Chapter 13.48) and City Council Policy on the Preservation of Historic Landmarks. On October 5, 2016, the proposed project was referred to the Historic Landmarks Commission (HLC). The HLC is an advisory body to the Planning Director, Planning Commission, City Council and City Manager on the designation, acquisition, and preservation of historic landmarks and site, artifacts and other property of historic significance and value. Pursuant to San José Municipal Code Section , new structures exceeding one hundred fifty feet which are constructed within one hundred feet of a city landmark must be reviewed by the HLC prior to consideration or approval of a development permit. The project site is located immediately north of the City National Civic Auditorium, which was adopted as a City Landmark by City Council Resolution in 1986 (File No. HL86-40). The City National Civic Auditorium includes a 1964 addition at its western edge known as McCabe Hall. McCabe Hall is part of the structure that was designated as a City Landmark under City Council Resolution No The Civic Auditorium is joined to Parkside Hall at the Civic s northwest corner, and shares a loading and staging area with McCabe Hall. Even though there is a connection to the Civic Auditorium, Parkside Hall is not considered part of the historic resource due to changes in the setting and reconfiguring of the access to the exhibit hall in recent years. 8. Downtown Design Guidelines Conformance. Section of the Zoning Ordinance requires that any project in the DC Downtown Primary Commercial Zoning District be subject to the design guidelines adopted by the City Council. The proposed project was reviewed against the Downtown Design Guidelines for conformance related to urban form and massing, the project base/street wall, architecture and materials, and the building crown. The Downtown Design Guidelines state that a project s massing should correspond to the geographical conditions and patterns of the urban form of the 10

11 immediate context of the project site. The project s tower shape reduces the project s mass by creating a sleek design that has numerous view angles, eliminating the boxy feel of the project. The proposed building is visually balanced with the Civic Auditorium complex and the remaining building masses on the block. The proposed building is not monolithic or flat in scale or massive in size. Specifically, the bottom floors of the proposed building are compatible in scale with the historic Civic Auditorium as the first floor cornice line is at the height of McCabe Hall, and the mezzanine level reflects the overall roof dimensions of the Civic, with the retail floor plans being of similar size to the Civic. The intent and design of the corner element is compatible with neighborhood patterns. The project s two frontages have achieved the intent of the Downtown Design Guidelines by providing large, glass street wall frontages with ample lighting and outdoor seating to create a constant feeling of activity, which translates to safety. The ground floor creates an inviting pedestrian feeling through transitional in and out space, allowing pedestrians to take advantage of the first floor amenities, as well as providing a pleasant outdoor walking experience along the paseo and Park Avenue area. The Downtown Design Guidelines also suggest that the ground level of buildings be occupied by retail, entertainment, service retail, cultural or other active, high intensity pedestrian uses. The ground level should be at least 18 feet in height, providing an inviting pedestrian experience along the street. The proposed project is providing 20 foot ground floor ceilings with awnings at a pedestrian scale. The hotel lobby is anticipated to be an active corner element of the ground floor, activating both the Park Avenue and paseo frontages. It is anticipated that the Tech Museum expansion space will include a café with outdoor eating space, further enlivening Part Avenue. The paseo frontage is also anticipated to have restaurant and outdoor seating space, facilitating an environment that is pedestrian-focused. The building is designed in a similar scale and proportion of the neighboring highrises, but offers a more refined mass. The facades of the building offer variation through glazing and curtain walls systems. The building s prow is a unique corner element that uses glass and shape to draw people to the project entrance and the paseo entrance. The material is a modern take on the traditional glass tower buildings found in the Downtown area. The vertical stacking of balconies, along with the strong banding of horizontal lines on the facades create a layering effect that lengthens the mass and provides architectural interest through additional shadow lines. The only missing element to this structure is a clearly defined top to this building. A Permit Adjustment will need to be obtained by the 11

12 subdivider to further refine this element of the building to create a distinct silhouette prior to the issuance of any building permits. Based on the above analysis, the project complies with the Downtown Design Guidelines. 9. Environmental Review. The City of San José, the lead agency for the proposed project prepared a Draft Supplemental Environmental Impact Report (Draft SEIR) to the Final Program Environmental Impact Report for the Downtown Strategy 2000 Plan. The Downtown Strategy 2000 Plan Final Program Environmental Impact Report was adopted by the City Council on June 21, 2005 by Resolution No (SCH# ). The project also relies upon the Envision San José 2040 General Plan Final Program Environmental Impact Report (FPEIR), adopted by City Council Resolution No on November 1, 2011; Supplemental Environmental Impact Report to the Envision San José 2040 General Plan Final Program Environmental Impact Report, adopted by City Council Resolution No on December 15, 2015, and November 1, 2016 Addenda thereto, all as explained in detail in the Draft SEIR. A Supplemental EIR was required due to the project s identified impact resulting from shadows cast by the proposed building on Plaza de Cesar Chavez. This Draft SEIR analyzed the environmental impacts of the project and discussed alternatives to the proposed project, in compliance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines. The Draft SEIR was circulated for public review and comment for 60 days from February 14, 2017 to March 31, A total of six comments were received on the Draft SEIR during the public review period. Comments addressed the following topics in the Draft SEIR: Pedestrian circulation, bicycle circulation, bus stop improvements, proposed heights, the project s location outside of the Airport Land Use Commission (ALUC) safety zone, land use inconsistency, lack of affordable housing, improper project description and objectives, improper piecemealing of the project s Disposition and Development Agreement (DDA), historic resource analysis, recirculation, bird safety, and incompleteness of overriding considerations. The Final SEIR is comprised of the Draft Supplemental Environmental Impact Report for the Project (the Draft SEIR ), together with the First Amendment to the Draft SEIR and the FPEIR. The Draft SEIR identified significant impacts to Plaza de Cesar Chavez resulting from shade and shadow of the project and from project construction activities on historic resources. Mitigation measures for these impacts, except for shade and shadow on the park, have been included in the SEIR that would reduce the impacts to a less than significant level. Therefore, the City has determined that the project will result in a significant unmitigated or unavoidable impact, as set 12

13 forth above, associated with shade and shadow on Plaza de Cesar Chavez. Implementation of the proposed project would result in a more than 10 percent increase in shading on Plaza de César Chávez during the winter months, resulting in a permanent increase in shading during the afternoon hours in the winter months. This increase in shading would also be cumulatively considerable when combined with any future development that may shade the park. Prior to taking any action on this Resolution, the City Council considered the SEIR along with all of the other environmental documents discussed above and in the SEIR, and concluded the SEIR was completed in compliance with CEQA. The City Council adopted a separate resolution on August 22, 2017, (i) making the required findings under CEQA, (ii) adopting a related Mitigation Monitoring and Reporting program for the project, (iii) providing a statement of overriding consideration, and (iv) certifying the SEIR, all in compliance with CEQA. The separate City Council CEQA resolution is incorporated fully herein by this reference and the subdivider shall be required to comply with all applicable mitigations for the project. FINDINGS Based on the above-stated facts and subject to any conditions set forth below, the City Council finds that: 1. Conformance with the City s Subdivision Ordinance and the Subdivision Map Act. The City Council has reviewed the proposed subdivision and has found it to be in conformance with both the City s Subdivision Ordinance (San José Municipal Code Chapter 19.04) and California Subdivision Map Act. Based on the above-stated facts and analysis, and subject to any conditions set forth below, the City Council concludes and finds that: a. Subdivision Map Act Findings. In accordance with San José Municipal Code Section , the City Council may approve the tentative map if the City Council cannot make any of the findings for denial in Government Code section and the City Council has reviewed and considered the information relating to compliance of the project with the California Environmental Quality Act and determines the environmental review to be adequate. Additionally, the City Council may approve the project if the City Council does not make any of the findings for denial in San José Municipal Code section San José Municipal Code Section incorporates the findings for denial in Section of the Government Code as described below. i. That the proposed map is not consistent with applicable general and specific plans as specified in Section

14 ii. iii. iv. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. That the site is not physically suitable for the type of development. That the site is not physically suitable for the proposed density of development. v. That the design of the subdivision or the proposed improvements is likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. vi. vii. That the design of the subdivision or type of improvements is likely to cause serious public health problems. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. Analysis: Based on the administrative record before the City Council, the City Council finds that: 1) the proposed map/project is consistent with the General Plan as discussed in detail above; 2) the proposed design of the units is consistent with the General Plan in that it identifies the consolidation of lots to avoid building construction over existing lot lines; 3) the proposed site is physically suitable for the proposed development; 4) the proposed density is suitable for the proposed site based on the density allowances of the Downtown General Plan designation; 5) the proposed lot combinations will not cause any environmental damage or substantially injure fish or other wildlife habitat; 6) the proposed lot combination will not cause any public health issues; 7) the proposed lot combination will not conflict with any public easements, as the project is providing all necessary public easements, and there is no public access through the site with this proposed subdivision, all as described in detail in the administrative record. In accordance with the findings set forth above, a Vesting Tentative Map to subdivide the subject property for said purpose specified above and subject to each and all of the conditions hereinafter set forth is hereby approved. This City Council expressly declares that it would not have approved this Resolution except upon and subject to each and all of said conditions, each and all of which conditions shall run with the land and be binding upon the owner and all subsequent owners of the subject property, and all persons who use the subject property for the subdivision conditionally permitted hereby. CONDITIONS 1. Acceptance of Vesting Tentative Map. Per Section (B) of Title 20 of the San José Municipal Code, should the subdivider fail to file a timely and valid appeal 14

15 of this Vesting Tentative Map within the applicable appeal period, such inaction by the subdivider shall be deemed to constitute all of the following on behalf of the subdivider: a. Acceptance of the Vesting Tentative Map by the subdivider; and b. Agreement by the subdivider to be bound by, to comply with, and to do all things required of or by the subdivider pursuant to all of the terms, provisions, and conditions of this Vesting Tentative Map or other approval and the provisions of Title 20 applicable to such Vesting Tentative Map. 2. Expiration of Tentative Map. This Vesting Tentative Map shall automatically expire 30 months from and after the date of issuance hereof by the City Council. The date of issuance is the date this Vesting Tentative Map is approved by the City Council. 3. Development Rights Vesting on Approval of Vesting Tentative Map a. Pursuant to San José Municipal Code Section , the approval or conditional approval of a vesting tentative map shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards described in Government Code Section However, if Section of the Government Code is repealed, the approval or conditional approval of a vesting tentative map shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards in effect at the time the vesting tentative map is approved or conditionally approved. b. Notwithstanding subsection paragraph a, above, any permit, including a building permit, approval, extension, or entitlement may be made conditional or denied if any of the following are determined: i. A failure to do so would place the residents of the subdivision or the immediate community, or both, in a condition dangerous to their health or safety, or both. ii. The condition or denial is required, in order to comply with state or federal law. c. The rights referred to herein shall expire if a final map is not approved prior to the expiration of the vesting tentative map permit as provided in Section If the final map is approved, these rights shall last for the following periods of time: i. An initial time period of one year. Where several final maps are recorded on various phases of a project covered by a single vesting tentative map, this one-year initial time period shall begin for each phase when the final map for that phase is recorded. All of said final maps or parcel maps must be recorded within the time period set forth in Section or the vesting tentative map permit approval shall expire for those parcels for which final maps or parcel maps are not timely recorded. 15

16 ii. The initial time period set forth in Condition No. 3.c.i., above, shall be automatically extended by any time used for processing a complete application for a grading permit if such processing exceeds thirty days from the date a complete application is filed. iii. A subdivider may apply to the director for a one-year extension at any time before the initial time period set forth in Condition No. 3.c.i. expires. If the extension is denied, the subdivider may appeal that denial to the city council within fifteen (15) days. If the subdivider submits a complete application for a building permit during the periods of time specified in Condition Nos. 3.c.i through 3.c.iii, above, the rights referred to herein shall continue until the expiration of that permit, or any extension of that permit. 4. Compliance with Subdivision Ordinance. The final map shall comply with all of the requirements for final maps in Chapter of the San José Municipal Code and shall show and contain all of the data required by San José Municipal Code Section Compliance with Municipal Code Section All commercial condominiums shall fully comply with the requirements of the Zoning Ordinance including Section of the Zoning Ordinance requiring a minimum size of seven hundred fifty (750) square feet for each commercial condominium unit. Any commercial condominium unit less than seven hundred and fifty (750) square feet shall be in violation of the Municipal Code and is not permitted in any manner. 6. Improvements. Pursuant to the Subdivision Agreement (hereinafter referred to as "Agreement"), the subdivider shall, before approval and recording of the Final Map, improve or agree to improve all land within the subdivision and all land outside, but appurtenant to, the Subdivision shown on the Vesting Tentative Map for public or private streets, alleys, pedestrian ways and easements to the satisfaction of the Director of Public Works. 7. Improvement Contract. In the event the subdivider has not completed the improvements required for his proposed subdivision at the time the final map is presented for approval, subdivider shall enter into an improvement contract pursuant to the Agreement with the City of San José, in accordance with Section of the San José Municipal Code, and provide the bonds and insurance mentioned therein. 8. Public Use Easements. Subdivider shall dedicate on the final map for public use easements for public utilities, streets, pedestrian ways, sanitary sewers, drainage, flood control channels, water systems and slope easements in and upon all areas within the subdivision shown on the Vesting Tentative Map for the subdivision to be devoted to such purposes. 16

17 9. Distribution Facilities. Subdivider shall, at no cost to the City, cause all new or replacement electricity distribution facilities (up to 40KV), telephone, community cable, and other distribution facilities located on the subject property to be placed underground. 10. Conveyance of Easements. Subdivider shall convey or cause to be conveyed to the City of San José, easements in and upon all areas as shown on the Vesting Tentative Map outside the boundaries of, but appurtenant to, the subdivision. Should a separate instrument be required for the conveyance of the easement(s), it shall be recorded prior to the recordation of the Parcel or Final Map unless explicitly stated otherwise herein. Such easements so conveyed shall be shown on the Parcel Map or Final Map, together with reference to the Book and Page in the Official Recorder of Santa Clara County, where each instrument conveying such easements is recorded. 11. Owner s Association. a. An Owner s Association shall be established prior to the issuance of any certificate of occupancy (temporary or final) for maintenance of all common areas, including pedestrian walkways, easements, and landscaping. The subdivider shall provide to the Owner s Association a copy of the Vesting Tentative Map, the accompanying Plan Set, any approved Amendments or Adjustments to the Development Permit, and a complete set of approved building and all improvement plans within 30 days of completion of each construction phase. b. The subdivider shall, at its sole cost, prepare grant deeds for all mutual or reciprocal easement rights, which shall be subject to the City prior review and approval for compliance with the terms of the City of San José Municipal Code, and shall upon City approval be recorded concurrently with the approved parcel or final map. c. The 60,000 square feet Tech Museum expansion space shall be excluded from any and all Owner s Association. Further, the Tech Museum expansion space shall be excluded from any and all fees, cost sharing arrangements, or any other funding mechanism or requirements related to the proposed project. 12. Tech Space Ownership. The future airspace vertical subdivision for the 60,000 square feet of Tech Museum expansion space shall be owned by the City. Subdivider shall execute any and all documents required by City to effectively provide free and clear fee title to the City for such airspace related to the Tech Museum expansion. 13. Conformance with Other Permits. The subject Vesting Tentative Map conforms to and complies in all respects with the Special Use Permit and Site Development Permit File No. SP on which such Vesting Tentative Map is based. Approval of said Vesting Tentative Map shall automatically expire with respect to any portion of the lands covered by such Vesting Tentative Map on which a Final Map or Tract Map has not yet been recorded if, prior to recordation of a Final Map or Tract Map thereon, the 17

18 Special Use Permit or Site Development Permit for such lands automatically expires or for any reason ceases to be operative. 14. Final Map. No Final Map or Tract Map shall be approved by the City unless and until the appeal period for the development permit, City File No. SP has expired and all appeals have been exhausted. Further, no final map shall be approved unless the subdivider is in full compliance with each and every term and condition of the fully executed Disposition and Development Agreement between the subdivider and City related to this proposed project (DDA). a. Demolition. No demolition permit shall be issued for the demolition of Park Side Hall unless and until a Final Map has been approved by the City and recorded to create three legal parcels, Parcel 1 as identified on the Vesting Tentative Map is transferred to subdivider, and subdivider has completed with each and every term and condition of the fully executed DDA Foot Public Easement on the Vesting Tentative Map (Almaden Avenue). No improvements of any type (whether temporary or permanent) shall be erected, constructed, or otherwise placed within the easement area without prior City written approval. 16. Required Dedications. As part of the Final Map and vacation of the existing Almaden Avenue for street purposes, the Subdivider shall dedicate on the Final Map each of the following to the public: a. A 40-foot all-inclusive No Build/Public Access/Emergency Access Easements along the former Almaden Avenue, starting at Park Avenue, ending at the property line of Parcel 3, as identified on the Vesting Tentative Map. 17. Separate Legal instrument. Immediately following the recording of the final map vacating the existing Almaden Avenue from street purposes, subdivider shall also record by separate legal instrument (in a form approved by the City s Public Works Department), a private 26 foot ingress/egress easement for the benefit of WCP San José, all as identified on the Vesting Tentative Map. 18. City Ownership. The City shall continue to own in fee Almaden Avenue adjacent to the future Parcel 3 leading to West San Carlos Street as identified on the Vesting Tentative Map. 19. Sewage Treatment Demand. Chapter of Title 15 of the San José Municipal Code requires that all land development approvals and applications for such approvals in the City of San José shall provide notice to the subdivider for, or recipient of, such approval that no vested right to a Building Permit shall accrue as the result of the granting of such approval when and if the City Manager makes a determination that the cumulative sewage treatment demand of the San José-Santa Clara Regional Wastewater Facility represented by approved land uses in the area served by said Facility will cause the total sewage treatment demand to meet or exceed the capacity 18

19 of San José-Santa Clara Regional Wastewater Facility to treat such sewage adequately and within the discharge standards imposed on the City by the State of California Regional Water Quality Control Board for the San Francisco Bay Region. Substantive conditions designed to decrease sanitary sewage associated with any land use approval may be imposed by the approval authority. 20. Sewage Fees: In accordance with City Ordinance, all storm sewer area fees, sanitary sewer connection fees, and sewage treatment plant connection fees, less previous credits, are due and payable to the Department of Public Works prior to Public Works clearance. 21. Conformance to Plans. The development of the site shall conform to the approved Vesting Tentative Map entitled, "Vesting Tentative Map dated April 28, 2017 on file with the Department of Planning, Building and Code Enforcement and to the San José Building Code (San José Municipal Code, Title 17, Chapter 17.04). 22. Parkland Dedication Ordinance. This development is subject to the requirements of either the requirements of the City s Park Impact Ordinance (Chapter of Title 14 of the San José Municipal Code) or the Parkland Dedication Ordinance (Chapter of Title 19 of the San José Municipal Code,) for the dedication of land and/or payment of fees in-lieu of dedication of land for public park and/or recreational purposes under the formula contained within the parkland dedication ordinance and the associated Fees and Credit Resolutions. 23. Affordable Housing. The project may be subject to the City s Inclusionary Housing Ordinance (Ordinance) or Affordable Housing Impact Fee (AHIF). If the development is subject to the referenced Ordinance or AHIF, the subdivider must, as part of the application for First Approval, as defined in the Ordinance or AHIF, shall submit an Affordable Housing Compliance Plan Application to the Housing Department, which Plan must be approved as part of the First Approval. Additionally, prior to the issuance of any building permits, or any final approval of any final map, the subdivider must execute and record their Affordable Housing Agreement with the City. a. The Inclusionary Housing Ordinance and AHIF Resolution each exempt certain developments from affordable housing obligations, if the development meets certain criteria. However, whether an exemption is claimed or not, the subdivider must submit an Affordable Housing Compliance Plan Application, and the application processing fee to the Housing Department as part of the application for First Approval. b. The Housing Department has reviewed and approved the Affordable Housing Compliance Plan for this project. Subdivider shall strictly comply with the approved Affordable Housing Compliance Plan for this project and any other applicable requirements of the Ordinance or AHIF. 19