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TR-2022-053 - Action Letter (dead)CITY OF IM CUPERTINO COMMUNITY DEVELOPMENT DEPARTMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO.ORG SENT VIA CERTIFIED U.S. MAIL AND ELECTRONIC MAIL December 9, 2022 Sharon Armstrong 22126 Dean Ct. Cupertino, CA 95014 sharon.armstrong@comcast.net Subject: Tree Removal Permit Action Letter for TR-2022-053 This letter confirms the decision of the Director of Community Development, given on December 9, 2022, approving a Tree Removal Permit to allow for the removal and replacement of one (1) dead 40-inch DBH Monterey Pine development tree in the common area of the Meadows of Cupertino development (APN: 357 09 999). Staff has made the finding that the development tree is dead (based on the definition provided in Section 14.18.020 of the City's Protected Tree Ordinance), and that the tree is irreversibly diseased, is in danger of falling, can cause potential damage to existing or proposed essential structures, or interfere with private on -site utility services and cannot be controlled or remedied through reasonable relocation. This finding is necessary to grant the tree removal permit in accordance with Cupertino Municipal Code (CMC) Section 14.18.180 (A)(1). The application is approved with the following conditions: 1. APPROVED PROJECT Approval of the tree removals is based on the application packet prepared by the applicant, Sharon Armstrong, consisting of five (5) documents including an arborist's report, a replacement plan, and photos of the dead tree. 2. TREE REPLACEMENTAN-LIEU FEE There is a replacement tree requirement of either two (2) 24-inch box trees or one (1) 36-inch box tree to be planted on the subject property within 30 days of tree removal. If the property owner elects to not plant the required replacement tree(s) on site, then an in -lieu fee for the replacements tree(s) must be paid to the City within 30 days of tree removal. Meadows of Cupertino TR-2022-053 Page 2 of 3 In the event the applicant is unable to plant the approved replacement trees, the applicant may propose alternative adequate tree replacements for trees proposed to be removed. The final number, location, size, and type of trees shall be reviewed and approved by the Director of Community Development, in consultation with the City's Consulting Arborist, prior to tree planting. The applicant shall provide the Department of Community Development adequate documentation, including but not limited to photographs, receipts or invoices, to verify that the replacement tree(s) have been planted or the in -lieu fee has been paid within 30 days of tree removal. 3. PROTECTED TREES The applicant understands that replacement trees may not be removed without a Tree Removal Permit and that they shall be responsible for ensuring the proper maintenance and care of the tree. The applicant shall also disclose the location and species of all replacement trees on site upon sale of the property. 4. 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. 5. INDEMNIFICATION AND LIMITATION OF LIABILITY 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 Meadows of Cupertino TR-2022-053 Page 3 of 3 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. Please note that an appeal of this decision may be made within 14 calendar days from the date of this letter. If an appeal is filed, you will be notified of a public hearing, which will be scheduled before the Planning Commission. Sincerely, /s/ Gian Paolo Martire Senior Planner (408) 777-3319 gianm@cupertino.org