DIR-2023-015 - Action Letter (Signed) CITY OF CUPERTINO
10300 Torre Avenue, Cupertino, California 95014 (408) 777-3308
To: Mayor and City Council Members
Chairperson and Planning Commissioners
From: 116Yuke Connolly, Assistant Director of Community Development
Prepared by: Emi Sugiyama, Associate Planner
Date: December 20, 2023
Subject: Director's Minor Modification, DIR-2023-015, to consider a 260-square-foot
first floor addition to an existing two-story residence in a Planned zoning
district at 21590 Grand Avenue, APN 326 25 005.
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 subject property is located at 21590
Grand Avenue, north of Stevens Creek'` :
Boulevard and west of Route 85 (Figure 1).
The property is zoned P(Res) or Planned
Development with residential use intent.
The single-family residence was originally ,
approved in 1953 under the County of
Santa Clara Building Permit number 34248.
A second story addition was later ° f'
approved in 1964 through County Permit
number 02684. Figure 1.Site Context -
".. ---
In 1979,the property was annexed into the City and was re-zoned as Planned Residential,
subject to the requirements of Ordinance No. 933 which states that:
... there are no specific zoning requirements relative to setbacks, lot coverage, and parking...
It is intended that the requirements of the zone (R1, R2) in which the use is ordinarily
permitted will be strived for...
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As such, development on the property is subject to the development standards outlined
in the City of Cupertino's Municipal Code ("City Code") Chapter 19.28 for R1 zoned lots.
Specifically, the property is subject to the development standards for R1-6 zoned
properties.
Ordinance 933 allows the processing of projects which are in keeping with the
requirements of the zone in which the use is ordinarily permitted at the Director level.
Since the proposal entails a minor change to an existing property and meets the
requirements of R1 zoning, the project is being processed pursuant Chapter 19.164 of the
Municipal Code with a Director's Minor Modification.
DISCUSSION
The property owners, Jingqiang Ding and Qiao Zhang, are proposing a minor
modification to the previously approved two-story residence at 121590 Grand Avenue.
The proposed modifications through DIR-2023-015 include the construction of a 260-
square-foot, single-story addition to the side of the existing structure and an internal
remodel of the second and first floors including new and enlarged second story windows.
The proposed addition is in compliance with all standards of City Code Chapter 19.28 for
R1-6 zoned lots. The following table outlines the project's compliance with the City Code
Section 19.28.070:
General Plan Designation Residential (4.4-7.7 DU/Ac.)
General Plan Area Monta Vista Village Special Area
Zoning Designation P(Res)
Net Lot Area 5,541 square feet
Development Standards Allowed/Required Existing Proposed
Floor Area Ratio (F.A.R.) 45% of net lot area 39.33% 44.48%
(2,493.45 sq. ft.) (2,179 s . ft.) (2,465 s . ft.)
Lot Coverage 50% of net lot area 27.68% 31.80%
(3,850 s . ft.) (1,534 s . ft.) (1,762 s . ft.)
V,Floor Setbacks
Front 20'Minimum 25'-1" 21'-0"
Rear 20'Minimum 7-11" 7'-11"1
Interior Side:5' Interior: 10'-9" Interior: 5'-5"
Side Street Side: 12' Street: 9'-10" No change 1
2°d Floor Setbacks
Front 25'Minimum 25'4" 25'-1"
Rear 25'Minimum _50' -50'
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Development Standards Allowed/Required Existing Proposed
Combined 25' & Combined: 19'-11' Combined: 19'-11"
Side' North: 9'-10" North: 9'-10"
No side less than 10'
South: 10'-1" South: 10'-1"
Total Building Height 28' maximum 24'-2" 24'-2"
1. Per City Code Section 19.140.060,where an existing non-compliant facility exists,an expansion
of the facility can be allowed so long as the expansion does not affect the particular degree or
manner in which the facility fails to comply with one or more provisions of the City Code. In
this case, the rear yard, street side,and second story side yard setbacks are not in compliance
with the requirements of the City Code, however, the proposed addition and remodel to not
affect the degree of the non-compliance.
Per City Code Section 19.28.120, privacy screening is required for new windows on
existing two-story homes that increase privacy impacts on neighboring residences. This
section allows for a modification to these privacy screening requirements where a signed
waiver/modification statement from the affected property owner is provided. The
applicant is proposing a new, second story window on the west elevation with views into
the rear yard of the property to the west. The applicant has obtained a privacy screening
waiver from this property owner(10080 Peninsula Avenue) and as a result does not need
to plant any privacy screening to screen views from this second story window.
As noted above, the addition and remodel does not conflict with the approved floor area
ratio, lot coverage, height, or any other standards of the Single-Family zoning ordinance.
Furthermore, the project is not anticipated to create any additional adverse privacy
impacts for adjacent residences, as a privacy waiver has been provided.The modification
to the design is, therefore, considered minor in nature.
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 to be minor and approves the project
subject to the following conditions of approval:
1. APPROVED EXHIBITS
Approval is based on exhibits titled "21590 Grand Avenue Cupertino, CA 95014",
prepared by Jenny Sun, consisting of 12 sheets labeled A0.01, A0.02, A1.01, A1.02,
A2.01 through A2.04, A3.01, G0.01, G0.02, and LAND SURVEY, except as may be
amended by the conditions contained in this resolution.
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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. BUILDING PERMITS
The applicant shall consult with the City Building Division to obtain the necessary
building permits prior to commencement of work.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
building plans.
5. 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.
5. LANDSCAPE PROTECT SUBMITTAL
Prior to issuance of building permits, the applicant shall submit a full Landscape
Documentation Package, per sections 14.15.050 A, B, C, and D of the Landscape
Ordinance, for projects with landscape area 500 square feet or more or elect to submit
a Prescriptive Compliance Application per sections 14.15.040 A, B, and C for projects
with landscape area between 500 square feet and 2,500 square feet. The Landscape
Documentation Package or Prescriptive Compliance Application shall be reviewed
and approved to the satisfaction of the Director of Community Development prior to
issuance of building permits, and additional requirements per sections 14.15.040 D, E,
F, and G or 14.15.050 E, F, G, H, and I will be required to be reviewed and approved
prior to final inspections.
6. EXTERIOR BUILDING MATERIALS/TREATMENTS
The final building exterior plan shall closely resemble the details shown on the
original approved plans. Final building 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
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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.
7. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent
feasible subject to the Building Official. The applicant shall provide evidence that
materials were recycled prior to issuance of final demolition permits.
8. 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 exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent 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. All haul trucks transporting soil, sand, or other loose material off-site shall be
covered.
c. All visible mud or dirt track-out onto adjacent public roads shall be removed using
wet power vacuum street sweepers at least once per day. The use of dry power
sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f. Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCR]). Clear signage shall be provided for construction workers at
all access points.
g. All construction equipment shall be maintained and properly tuned in accordance
with manufacturer's specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h. Post a publicly visible sign with the telephone number and person to contact at the
Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District's phone number shall also be
visible to ensure compliance with applicable regulations.
a) The applicant shall incorporate the City's construction best management
practices into the building permit plan set.
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6. 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.
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. Night time
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. BIRD SAFE COMPLIANCE
Prior to issuance of Building Permits, the applicant/property owner shall submit final
plans in compliance with the approved plans to comply with development standards
of Cupertino Municipal Code Section 19.102.030 Bird-Safe Development
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 necessary documentation required
to determine compliance with the Municipal Code.
10. 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
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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.
11. FUGITIVE DUST CONTROL
Prior to issuance of the any demolition, grading, or building permit, include on all
permit plans, the full text of each of the Bay Area Air Quality Management District's
Basic Control Measures from the latest version of BAAOMD's CEOA Air OualitY
Guidelines, as subsequenrtly revised, supplemented, or replaced, to control fugitive
dust (i.e., particulate matter PM2.5 and PM10) during demolition, ground disturbing
activities and/or construction.
12. VOLATILE ORGANIC COMPOUND EMISSIONS FROM PAINT
Prior to issuance of the first building permit, the Applicant shall include a note on all
plans where paint specifications or other design specifications are listed, that the
project design will incorporate only low-VOC paint (i.e., 50 grams per liter [g/L] or
less) for interior and exterior wall architectural coatings.
13. AVOID NESTING BIRDS DURING CONSTRUCTION
Prior to issuance of the any demolition, grading and building permit, indicate the
following on all construction plans:
a. Demolition, construction, ground-disturbing, and tree removal/pruning activities
shall be scheduled to be completed prior to nesting season (February 1 through
August 31), if feasible.
b. If demolition, construction, ground-disturbing, or tree removal/pruning activities
occur during the nesting season (February 1 and August 31), preconstruction
surveys shall be conducted as follows:
i. No more than 7 days prior to the start of demolition, construction, ground-
disturbing, or tree removal/pruning activities, in order to identify any active
nests with eggs or young birds on the site and surrounding area within 100 feet
of construction or tree removal activities.
ii. Preconstruction surveys shall be repeated at 14-day intervals until demolition,
construction, ground-disturbing, or tree removal/pruning activities have been
initiated in the area, after which surveys can be stopped. As part of the
preconstruction survey(s), the surveyor shall inspect all trees and other
possible nesting habitats in, and immediately adjacent to, the construction
areas for active nests, while ensuring that they do not disturb the nests as
follows:
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I)For projects that require the demolition or construction one single-family
residence, ground disturbing activities affecting areas of up to 500 square feet,
or the removal of up to three trees, the property owner or a tree removal
contractor, if necessary, is permitted to conduct the preconstruction surveys to
identify if there are any active nests. If any active nests with eggs or young
birds are identified, the project applicant shall retain a qualified ornithologist
or biologist to identify protective measures.
2)For any other demolition, construction and ground disturbing activity or the
removal of four or more trees, a qualified ornithologist or biologist shall be
retained by the project applicant to conduct the preconstruction surveys.
iii. If the preconstruction survey does not identify any active nests with eggs or
young birds that would be affected by demolition, construction, ground-
disturbing or tree removal/pruning activities, no further mitigating action is
required. If an active nest containing eggs or young birds is found sufficiently
close to work areas to be disturbed by these activities, their locations shall be
documented, and the qualified ornithologist or biologist shall identify
protective measures to be implemented under their direction until the nests no
longer contain eggs or young birds.
iv. Protective measures may include, but are not limited to, 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 ornithologist or 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.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 ornithologist or
biologist, if project activities are determined to be adversely affecting the
nesting birds. Exclusion zones may be reduced by the qualified ornithologist
or 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.
v. 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 prepared by the qualified ornithologist or biologist and
submitted to the Director of Community Development or his or her designee,
through the appropriate permit review process (e.g., demolition, construction,
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tree removal, etc.), and be completed to the satisfaction of the Community
Development Director prior to the start of demolition, construction, ground-
disturbing, or tree removal/pruning activities.
14. ARCHAEOLOGICAL RESOURCES AND TRIBAL CULTURAL RESOURCES
Prior to the issuance of any demolition, grading or building permit involving soil
disturbance, the project applicant shall provide written verification, including the
materials provided to contractors and construction crews, to the City confirming that
contractors and construction crews have been notified of basic archaeological site
indicators, the potential for discovery of archaeological resources, laws pertaining to
these resources, and procedures for protecting these resources as follows:
a. Basic archaeological site indicators that may include,but are not limited to, darker
than surrounding soils of a friable nature; evidence of fires (ash, charcoal, fire
affected rock or earth);concentrations of stone,bone,or shellfish;artifacts of stone,
bone, or shellfish; evidence of living surfaces (e.g., floors); and burials, either
human or animal.
b. The potential for undiscovered archaeological resources or tribal cultural
resources on site.
c. The laws protecting these resources and associated penalties, including, but not
limited to, the Native American Graves Protection and Repatriation Act of 1990,
Public Resources Code Section 5097, and California Health and Safety Code
Section 7050 and Section 7052.
d. The protection procedures to follow should construction crews discover cultural
resources during project-related earthwork, include the following:
i. All soil disturbing work within 25 feet of the find shall cease.
ii. The project applicant shall retain a qualified archaeologist to provide and
implement a plan for survey, subsurface investigation, as needed, to define
the deposit, and assessment of the remainder of the site within the project area
to determine whether the resource is significant and would be affected by the
project.
iii. Any potential archaeological or tribal cultural resources found during
construction activities shall be recorded on appropriate California
Department of Parks and Recreation forms by a qualified archaeologist. If the
resource is a tribal cultural resource, the consulting archaeologist shall consult
with the appropriate tribe, as determined by the Native American Heritage
Commission, to evaluate the significance of the resource and to recommend
appropriate and feasible avoidance, testing, preservation or mitigation
measures, in light of factors such as the significance of the find, proposed
project design, costs, and other considerations.The archeologist shall perform
this evaluation in consultation with the tribe.
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15. HUMAN REMAINS AND NATIVE AMERICAN BURIALS
Prior to issuance of the any demolition, grading and building permits that involve soil
disturbance, include on plans a note that, during project construction, the project
applicant shall comply with California Health and Safety Code Section 7050.5 and
California Public Resources Code Section 5097.98.
a. In the event of discovering human remains during construction activities, there
shall be no further excavation or disturbance of the site within a 100-foot radius of
the remains, or any nearby area reasonably suspected to overlie adjacent remains.
b. The Santa Clara County Coroner shall be notified immediately and shall make a
determination as to whether the remains are Native American.
c. If the Santa Clara County Coroner determines that the remains are not subject to
his authority, he shall notify the Native American Heritage Commission (NAHC)
within 24 hours.
d. The NAHC shall attempt to identify descendants (Most Likely Descendant) of the
deceased Native American.
e. The Most Likely Descendant has 48 hours following access to the project site to
make recommendations or preferences regarding the disposition of the remains.
If the Most Likely Descendant does not make recommendations within 48 hours
after being allowed access to the project site, the owner shall, with appropriate
dignity, reinter the remains in an area of the property secure from further
disturbance and provide documentation about this determination and the location
of the remains to the NAHC and the City of Cupertino. Alternatively, if the owner
does not accept the Most Likely Descendant's recommendations, the owner or the
descendent may request mediation by the NAHC. Construction shall halt until the
mediation has concluded.
16. STORMWATER RUNOFF CONTAMINATION
Prior to issuance of any grading or building permits, the project applicant shall
demonstrate compliance with Chapter 9.18 (Stormwater Pollution Prevention and
Watershed Protection)of the Cupertino Municipal Code, to the satisfaction of the City
Engineer or his or her designee. All identified stormwater runoff control measures
shall be included in the applicable construction documents.
17. NOISE AND VIBRATION NOTICE
At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant/contractor shall send notices of the
planned activity by first class mail as follows:
a. For projects on sites that are more than 0.5 acres or four or more residential units
the notices shall be sent to off-site businesses and residents within 500 feet of the
project site;
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b. For projects on sites between 0.25 to 0.5 acres, or two or three residential units (not
including Accessory Dwelling Units)notices shall be sent to off-site businesses and
residents within 250 feet of the project site; or
c. For projects on sites less than 0.25 acres or one residential unit, the notices shall be
sent to off-site businesses and residents within 100 feet of the project site.
The notification shall include a brief description of the project, the activities that
would occur, the hours when activity would occur, and the construction period's
overall duration. The notification should include the telephone numbers of the
contractor's authorized representatives that are assigned to respond in the event of a
noise or vibration complaint. The City will provide mailing addresses for the
Applicant's use. The project applicant shall provide the City with evidence of mailing
of the notice,upon request.If pile driving, see additional noticing requirements below.
18. NOISE AND VIBRATION SIGNAGE
At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant/contractor shall ensure that a sign
measuring at least two feet by three feet shall be posted on construction fencing at the
entrance(s) to the job site, clearly visible to the public, and include the following:
a. Permitted construction days and hours;
b. A description of proposed construction activities;
c. 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; and
d. Contact information for City's and contractor's authorized representatives that are
assigned to respond in the event of a complaint related to fugitive dust, pursuant
to the requirements for compliance with BAAQMD's CEQA Air Quality
Guidelines.
If the authorized contractor's representative receives a complaint, they shall
investigate, take appropriate corrective action, and report the complaint and the
action taken to the City within three business days of receiving the complaint.
19. NOISE DURING CONSTRUCTION
Prior to issuance of any demolition, grading or building permit, include on plans a
note that, during project construction, the project applicant shall incorporate the
following measures to reduce noise during construction and demolition activity:
a. The project applicant and contractors shall prepare and submit a Construction
Noise Control Plan to the City's Planning Department for review and approval
prior to issuance of the first permit.The Construction Noise Plan shall demonstrate
compliance with daytime and nighttime decibel limits pursuant to Chapter 10.48
(Community Noise Control) of Cupertino Municipal Code. The details of the
Construction Noise Control Plan shall be included in the applicable construction
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documents and implemented by the on-site Construction Manager. Noise
reduction measures selected and implemented shall be based on the type of
construction equipment used on the site, distance of construction activities from
sensitive receptor(s), site terrain, and other features on and surrounding the site
(e.g., trees, built environment) and may include, but not be limited to, temporary
construction noise attenuation walls, high quality mufflers. During the entire
active construction period, the Construction Noise Control Plan shall demonstrate
that compliance with the specified noise control requirements for construction
equipment and tools will reduce construction noise in compliance with the City's
daytime and nighttime decibel limits.
b. 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.
c. 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.
d. 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 law.
20. PALEONTOLOGICAL RESOURCES
Prior to issuance of the any demolition, grading or building permit, include on plans
a note that, during project construction, the project applicant shall implement the
following measures:
a. If paleontological resources are encountered during ground disturbing and/or
other construction activities, all construction shall be temporarily halted or
redirected to allow a qualified paleontologist, which shall be retained by the
project applicant, to assess the find for significance and the Applicant shall notify
the City.
b. If paleontological resources are found to be significant, the paleontological
monitor shall determine appropriate actions, in coordination with a qualified
paleontologist, City staff, and property owner. Appropriate actions may include,
but are not limited to, a mitigation plan formulated pursuant to guidelines
developed by the Society of Vertebrate Paleontology and implemented to
appropriately protect the significance of the resource by preservation,
documentation, and/or removal, prior to recommencing activities. Measures may
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include, but are not limited to, salvage of unearthed fossil remains and/or traces
(e.g., tracks, trails, burrows); screen washing to recover small specimens;
preparation of salvaged fossils to a point of being ready for curation(e.g., removal
of enclosing matrix, stabilization and repair of specimens, and construction of
reinforced support cradles);and identification, cataloging, curation, and provision
for repository storage of prepared fossil specimens.
21. 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.
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The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
22. 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.
Please note that if this permit is not vested within two years, it shall expire on
December 20, 2025.
Also, please note that an appeal of this decision can be made within fourteen (14)
calendar days from the date of this decision (Wednesday,January 3, 2024 at 5:00 p.m.).
If this happens, you will be notified of a public hearing, which will be scheduled
before the Planning Commission. A copy of the appeal form is available online at:
www.cupertino.org/planningforms. The completed appeal form and filing fee must be
received by the deadline to appeal and may be submitted in one of the following ways:
1. Preferred: Bring a signed copy of the appeal form to the City Clerk's office
between 7:30AM-5:OOPM (M-Th) and 7:30AM-4:30PM (F).
2. Other options:
a. Mail the completed form and a check in the amount of$347 to Attn:City Clerk,
City of Cupertino, 10300 Torre Avenue, CA 95014.
b. Email the completed form to cityclerk@cupertino.org and call (408) 777-3223
between 7:30AM - 5:30PM (M-Th) and 7:30AM - 4:30PM (F) to arrange for
payment by credit card.
Please contact the City Clerk's office for additional guidance and instructions on how to
file.
Enclosures:
Attachment A: Site Plan
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