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TR-2023-046 - Approval Action LetterComm . F lopmevt De(EUIMM41TY DEVELOPMENT DEPARTMENT PI11499F sion — upe?FANNING DIVISION �CUPERTIN4 ROVE CITY HALL Case # 23-04q 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 LTMpopori"'w Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CUPERTINO CUPERTINO.ORG Approval Body: Director / Staff Approva I Date 09/12/23 Signature &pLWi cIraWng023 Case Manager Chandana Avula 10354 Colby Avenue Cupertino, CA 95014 SUBJECT: TREE REMOVAL PERMIT ACTION LETTER — Application TR-2023-046 This letter confirms the decision of the Director of Community Development, given on September 12, 2023 approving the Tree Removal Permit to allow the removal and replacement of one (1) 44-inch DBH, 4-trunk specimen Coast Live Oak (Quercus agrifolia) at a single-family residential property located at 10354 Colby Avenue. Staff has made the necessary findings that the 44-inch Coast Live Oak tree proposed for removal can cause potential damage to existing essential structures and interferes with on -site utility services and cannot be controlled or remedied through reasonable relocation or modification of the utility services. The 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: APPLICATION AND SUPPORTING DOCUMENTATION This approval for tree removal is based on the application, photographs and arborist report submitted by Sean Curry, certified arborist (WE-10636a), and the owner/operator of Curry Bros Tree Care. 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. 10354 Colby Avenue Page 2 of 4 Community evelopment Department PI3nn [l iVi lZiri ihOR no c U PE RT, N Q TheQppg0Vtbe property has chosen to pay the in -lieu tree replacement fee instead Case # op!cement trees per the requirements in CMC 14.18.160(B)(2) and (B r(s) Approval Body: D'rTctqYhe/i5tt fee for a mature specimen tree with trunk size equal to or less than thirty-six Approval Date PARA&ll be based upon the purchase and installation cost of the replacement tree as Signature Catli&g&q�A4by the Director of Community Development. Case Manager 4. If the subject property is within the R1, Al, A, RHS, and R2 zones, the person requesting the tree removal permit has the option to pay the fee in -lieu of planting a replacement tree. Where the applicant would like to plant a replacement tree, but demonstrates it is physically infeasible to plant on the subject property, the in -lieu fee shall be based on the purchase and installation cost of the replacement tree as determined by the Director of Community Development. In cases where it is physically feasible to plant, but the applicant chooses to pay the in -lieu fee instead of planting a replacement tree on the subject property, payment shall be equivalent to one and one-half the calculated in -lieu tree replacement fee." The in -lieu fee paid for this application consists of the wholesale cost of a 36-inch-box Coast Live Oak tree which is $595.00 according to the City of Cupertino's arborist, Jonathan Ferrante. The cost of installation is determined by the Northern California Director of Industrial Relations Wage Determination which is $15.84 per hour multiplied by 8 hours (which are work hours confirmed by the City's arborist for the installation of one 36-inch-box tree) which equals $126.72. So, $595 plus $126.72 equals $721.72. And then this amount multiplied by 1.5 (since there are other locations on the property to plant a replacement tree) equals the total in -lieu replacement tree fee of 1082.58. 4. NESTING BIRDS Nests of raptors and other birds shall be protected when in active use, as required by the federal Migratory Bird Treaty Act and the California Department of Fish and Game Code. a. Construction and tree removal/pruning activities shall be scheduled to avoid the nesting season to the extent feasible. If feasible, tree removal and/or pruning shall be completed before the start of the nesting season to help preclude nesting. The nesting season for most birds and raptors in the San Francisco Bay area extends from February 1 through August 31. Preconstruction surveys are not required for tree removal or construction activities outside the nesting period. 5. INDEMNIFICATION AND LIMITATION OF LIABILITY As part of the application, to the fullest extent permitted by law, the applicant shall agree to indemnify, defend with the attorneys of the City's choice, and hold harmless the City, its City Council, and its officers, employees, and agents (collectively, the "indemnified parties") from and against any liability, claim, action, cause of action, 10354 Colby Avenue Community evelopment Department Page 3 of 4 P I a n n;'srigt,D i,�ii�'r'o,ges, C)l i a i(n-d, lien, levy, or proceeding (collectively referred to as c u PE RT, N Q "prc,4p'p08Vk Brought by a third party against one or more of the indemnified parties Case # °rpi-2& - wf the indemnified parties and the applicant related to any Ordinance, lb p&I,tgc ion approving the project, the related entitlements, environmental review documents, finding or determinations, or any other permit or approval Approval Body: Dkt9$Wi1e514Ar the project. The indemnification shall include but not be limited to Approva I Date 9N&j§, fees, and costs awarded against the City, if any, and cost of suit, attorneys' Signature Cathe -P§4n@ther costs, liabilities, and expenses incurred in connection with such proceeding 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. 6. 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. 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, Catherine Tarone Permit Technician Planning Division 10354 Colby Avenue Page 4 of 4 Communiiy'6-e0velopment Department P1ann(6§8QiVi94&97- Cupertino CUPERTINO cat n- - ertino.org Case # TR-2023-046 Application Number(s) Approval Body: Director / Staff Approva I Date 09/12/23 Signature Catherine Tarone Case Manager