Reso 6882A
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6882
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING ADOPTION OF A MITIGATED NEGATIVE
DECLARATION AND MITIGATION MONITORING AND REPORTING
PROGRAM FOR THE DEVELOPMENT OF A NEW FIVE (5) STORY, 185 ROOM
HOTEL WITH ASSOCIATED IMPROVEMENTS LOCATED AT
10801 AND 10805 NORTH WOLFE ROAD (APN: 316-45-017 AND 316-05-,56)
The Planning Commission recommends that the City Council adopt the Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program, in
substantially similar form to the Draft Resolution attached hereto as Exhibit EA.
PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City
of Cupe'rtino'the 11th day of June 2019, by the following roll call vote:
AYES: COMMISSIONERS: Chair Wang, Vice Chair Saxena, Moore, Fung
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: Takahashi
ATTEST:
B enjamin Fu
Acting Dir. of Community Development
APPROVED:
R "Ray" Wang
Chair, Planning Commission
EXHIBIT EA
RESOLUTION NO.
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
ADOPTING A MITIGATED NEGATIVE DECLARATION AND MITIGATION
MONITORING AND REPORTING PROGRAM FOR THE DEVELOPMENT OF
A NEW FIVE (5) STORY, 185 ROOM HOTEL WITH ASSOCIATED
IMPROVEMENTS LOCATED AT 10801 AND 10805 NORTH WOLFE ROAD
(APN: 316-45-017 AND 316-05-56)
SECTION I: PROTECT DESCRIPTION
Application No.: EA -2017-05
Applicant: Kimco Realty (Michael Strahs)
Property Owner: Cupertino Village, LP
Location: 10801 and 10805 North Wolfe Road (APN: 316-45-017 and 316-05-56)
SECTION II: ENVIRONMENTAL REVIEW PROCESS
WHEREAS, the City of Cupertino received an application on December 8, 2017 for a
General Plan Amendment, Development Permit, Development Agreement, Architectural
and Site Approval, Use Permit, and Tree Removal permits to allow the development of a
new 5 -story, 185 room hotel with associated site and landscaping improvements, and
associated environmental review ("Project"); and,
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of
1970 (Public Resources Code Section 21000 et seq.) ("CEQA") together with the State
CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.)
(hereinafter, "CEQA Guidelines"), the City prepared an Initial Study and proposed
Mitigated Negative Declaration for the Project ("IS/MND"); and
WHEREAS, the project is additionally described in the May 30, 2019 "The Cupertino
Village Hotel Project" Final Draft Initial Study ("Draft IS/MND"); and
WHEREAS, on November 8, 2018 the City issued a Notice of Intent to Adopt a Mitigated
Negative Declaration; and
WHEREAS, on November 8, 2018 the Draft IS/MND for the project was distributed to
responsible agencies and the public for revie`v and comment for a 30 -day period that
ended December 7, 2018; and
WHEREAS, the IS/MND concluded that significant environmental effects on Air Quality,
Biological Resources, Cultural Resources, Noise, and Utilities and Service Systems would
EXHIBIT EA
be avoided or reduced to less -than -significant levels by mitigation measures ("MM")
identified in the IS/MND; and
WHEREAS, on December 13, 2018, prior to making any recommendation regarding the
adoption of the Draft IS/MND, the City of Cupertino's Environmental Review Committee
held a duly noticed public hearing to receive public <testimony where it reviewed and
considered the information contained in the Draft IS/MND, and voted 5-0-0 to
recommend. that the City Council adopt the Draft IS/MND (EA -2017-06) and mitigation
measures with their motion; and
WHEREAS, the changes made after publication of the IS/MND merely clarify, amplify or
make insignificant modifications to the IS/MND, and recirculation of the IS/MND is not
required; and
WHEREAS, for all comments received following the close of the public review and
comment period, responses have been provided with staff reports;
WHEREAS, the comments received on the IS/MIND, along with responses to these
comments, are included in the staff report, summarized;
WHEREAS, the Planning Commission independently reviewed and considered the
IS/MND together with the comments and the responses -to those comments prior to taking
action on the Project;
WHEREAS, the comments received by the Planning Commission do not require major
revisions to the IS/MND due to new or substantially more severe significant effects on
the environment; and
WHEREAS, on June 11, 2019 prior to taking _action on the Project, the Planning
Commission held a duly noticed public hearing to receive staff's presentation and public
testimony, and to further consider the information contained in the Final IS/MND, along
with all staff reports, other pertinent documents, and all written and oral. statements
received prior to and at the public hearing;
WHEREAS, the City Council has independently reviewed and considered the IS/MND
together with the comments and the responses to those comments prior to taking action
on the Project;
WHEREAS, the comments received by the City Council do not require major revisions to
the IS/MND due to new or substantially more severe significant effects on the
environment; and
WHEREAS, on July 16, 2019 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 Final IS/MND, along with all staff
EXHIBIT EA
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 maps, facts, exhibits, testimony, staff reports, public
comments, and other evidence submitted in this matter, the City Council:
1. Finds that the Final IS/MND for the Project has been completed in compliance with
CEQA and reflects the independent judgment and analysis of the City.
2. Finds that, on the basis of the whole record before it, there is no substantial evidence
that the Project as proposed and mitigated will have a significant effect on the
environment.
3. Adopts the Final Mitigated Negative Declaration (Final MND) for the Project.
4. Adopts the Mitigation Monitoring and Reporting Program for the Project, as
amended, attached hereto as Exhibit EA -1, and incorporated herein by reference,
which incorporates all the mitigation measures required under the Final MND. The
Planning Commission further makes the mitigation measures required conditions of
approval of the Project to the extent they are within the responsibility and jurisdiction
of the City as summarized below:
a. AIR QUALITY
Mitigation Measure AQ -1: The project's construction contractor shall comply
with the following Bay Area Air Quality Management District best management
practices for reducing construction emissions of fugitive dust (PMio and PM2.5):
• Water all active construction areas at least twice daily, or as often as needed to
control dust emissions. Watering should be sufficient to prevent airborne dust
from leaving the site. Increased watering frequency may be necessary
whenever wind speeds exceed 15 miles per hour. Reclaimed water should be
used whenever possible.
• Pave, apply water twice daily or as often as necessary to control dust, or apply
(non-toxic) soil stabilizers on all unpaved access roads, parking areas, and
staging areas at construction sites.
• Cover all trucks hauling soil, sand, and other loose materials or require all
trucks to maintain at least 2 feet of freeboard (i.e., the minimum required space
between the top of the load and the top of the trailer).
• Sweep daily (with water sweepers using reclaimed water if possible) or as often
as needed all paved access roads, parking areas and staging areas at the
construction site to control dust.
EXHIBIT EA
® Sweep public streets daily (with water sweepers using reclaimed water if
possible) in the vicinity of the project site, or as often as needed, to keep streets
free of visible soil material.
® Hydroseed or apply non-toxic soil stabilizers to inactive construction areas.
® Enclose, cover, water twice daily, or apply non-toxic soil binders to exposed
stockpiles (dirt/sand).
® Limit vehicle traffic speeds on unpaved roads to 15 miles per hour.
® Replant vegetation in disturbed areas as quickly as possible.
® Install sandbags or other erosion control measures to prevent silt runoff from
public roadways.
Mitigation Measure AQ -2: Prior to issuance of any grading, demolition and/or
building permits, the construction contractor(s) shall demonstrate the following,
during construction, on all plans:
® The use of construction equipment fitted with Level 3 Diesel Particulate Filters
for all equipment of 50 horsepower or more.
® Maintain a list of all operating equipment in use on the project site for
verification by the City of Cupertino Building Division official or =his/her
designee. The construction equipment list shall state the makes, models, and
number of construction > equipment on-site. Equipment shall be properly
serviced and maintained in accordance with manufacturer recommendations.
® Ensure that all nonessential idling of construction equipment'is restricted to 5
minutes or less, which is in compliance with California Air Resources Board
Rule 2449.
® Ensure that all construction plans submitted to the City of Cupertino Planning
Department and/or Building Division clearly show the requirement for Level
3 Diesel Particulate Filters emissions standards for construction equipment
over 50 horsepower.
b. BIOLOGICAL RESOURCES
Mitigatfl®n Measure B1O-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 of 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:
® Beconducted 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.
EXHIBIT EA
• 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.
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 and a qualified
archaeologist shall be consulted.
• If the resource is a non -tribal resource, the archaeologist shall to 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 City
shall consult with the appropriate tribe(s) to evaluate the resource and
determine appropriate avoidance, preservation or mitigation measures.
• If any find is determined to be significant, representatives from the City of
Cupertino Building Department and the archaeologist shall meet to determine
the appropriate avoidance measures or other appropriate mitigation.
• 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.
® Where the materials are tribal, the City shall consult with the appropriate
tribe(s) to determine what types of testing and preservation are acceptable.
® In considering any suggested mitigation proposed by the consulting
archaeologist to mitigate impacts to tribal cultural resources, historical
resources or unique archaeological resources, the City, in consultation with the
tribe(s) where appropriate, shall determine whether avoidance is necessary
and feasible in light of factors such as the nature of the find, proposed project
design, costs, and other considerations.
® If avoidance is infeasible, other appropriate measures (e.g., data recovery)
would may be implemented.
® 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
Mitigation Measure CULT -2e 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
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.
d. TRIBAL CULTURAL RESOURCES
Mitigations Measure TCR -1: Implement Mitigation Measure CULT -1.
EXHIBIT EA
e. NOISE
Mitigation Measure NOISE -1: The following shall be incorporated in all
demolition, grading, and construction plans, as required by the CMC,
Construction activities shall take place only during daytime hours of 7:00 a.m. and
8:00 p.m. on weekdays, and 9:00 a.m. to 6:00 p.m. on weekends. In addition, the
construction crew shall adhere to the following best management practices shall
be observed:
• At least 90 days prior to the start of construction activities, all offsite businesses
and residents within 300 feet of the project site will be notified of the planned
construction activities. The notification will include a brief description of the
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.
• The project applicant and contractors will prepare a Construction Noise
Control Plan prior to issuance of any grading, demolition, and/or building
permits. The details of the Construction Noise Control Plan, including those
details listed herein, will be included as part of the permit application drawing
set and as part of the construction drawing set.
• At least 10 days prior to the start of construction activities, a sign will 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 will 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 bast 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.
• Include noise control requirements for equipment and tools, including concrete
saws, to the maximum extent feasible. Such requirements could include, but
are not limited to, erecting temporary plywood noise barriers between areas
where concrete saws will be used and nearby sensitive receptors; performing
work in a manner that minimizes noise; and undertaking the noisiest activities
during times of least disturbance to nearby sensitive receptors.
• During the entire active construction period, stationary noise sources will be
located as far from sensitive receptor�i as possible, and they will be muffled and
EXHIBIT EA
enclosed within temporary sheds, or insulation barriers or other measures will
be incorporated to the extent feasible.
® During the entire active construction period, noisy operations will be
conducted simultaneously to the degree feasible in order to reduce the time
periods of these operations.
® Select haul routes that avoid the greatest amount of sensitive use areas and
submit to the City of Cupertino Public Works Department for approval prior
to the start of the construction phase.
® 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 UTI L-1.: No building permits shall be issued .by the City for
the proposed Cupertino Village Hotel 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 may demonstrate, to the satisfaction
of the City of Cupertino and Cupertino Sanitary District (CSD), that the proposed
hotel 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 calculatedusing
the generation rates used by the San Jose -Santa Clara Water Pollution Control Plant
Specific Use Code & Sewer Coefficient table in the May 2007, City of Santa Clara
Sanitary Sewer Capacity Assessment, unless alternative (i.e., lower) generation rates
EXHIBIT EA
achieved by the proposed project are substantiated by the project applicant based
on evidence to the satisfaction of the CSD.
PASSED AND ADOPTED this 16th day of July 2019, at a Regular Meeting of the City
Council of the City of Cupertino, State of California, by the following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Steven Scharf, Mayor
Date
City of Cupertino
ATTEST:
Date
Grace Schmidt, City Clerk
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