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DIR-2023-020, TR-2023-051 - Action Letter Community Development Department Planning Division — Cupertino CITY OF CUPERTINO cuPEariNa Aq5§lYre Avenue, Cupertino, California 95014 (408) 777-3308 Case# D I R-2023-020 Applcatio` ambe sTo: 1lyo a nd City Council Members Approval Body: DirectorQ&Wperson and Planning Commissioners Approva I Date 12/19;23 Signature FroMnieiit2j c itke Connolly, Assistant Director of Community Development Prepared vpjWaGhosh, Planning Manager Date: December 19, 2023 Subject: Director's Minor Modification, DIR-2023-020, to allow the replacement of an existing parking lot and Retroactive Tree Removal Permit, TR-2023-051, to allow the removal and replacement of three Protected Trees removed without permits, located at 10275 N. De Anza Blvd, APN 326 33103. 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 property owner/applicant, Jim Di Vittorio, proposes to replace a parking lot previously removed at the northwest corner of Lazaneo Drive and N. De Anza Blvd. The site was developed in the late 1970s with a two- story office building, associated parking and s ; landscaping (U-1978-24). The parking lot was largely unchanged since the original permits approved for the project. Please refer to Figure 1. ON In addition, as a result of code enforcement investigation it was found that, in additon to _ removing the existing parking lot, the applicant had removed Protected Trees without first obtaining Tree Removal Permits, pursuant to Chapter 14.18 of the Municipal Code.The applicant is required to correct this violation in conjunction with the application for replacement of the parking lot. Figure 1: Aerial 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department I;gsghlff6 ion — Cupertino CUPERTINO The applicARPP:® es to install a compliant, reinforced concrete parking lot on the site Case # with 88MRV0ga,1020s, as approved with U-1978-24. One accessible parking stall with accessAYJoc; r[pB1bw 1l be provided on site to comply with American Disabilities Act Approval Bb l ireeets. Staff proposed plans need to be modified prior to issuance of building rmits M 9 tress Municipal Code requirements as outlined in the conditions of Approva I D��e approval e ow. in addition, e applicant is required to replace removed trees on the site Signature RaniellR C ydi db a e an r riltdily, amongother changes to the site, the applicant is proposing to make improvements to parking lot landscaping and trash and recycling facilities. 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 minor and approves the project with the following conditions of approval: 1. APPROVED EXHIBITS Approval is based on exhibits prepared by JAD Engineering, Inc., consisting of six sheets (C0.0, C1.0, C1.1, C2.0, C3.0, and C4.0) labeled Cover Sheet and Notes, Existing Site Plan, Proposed Site Plan, Grading and Drainage Plan, Erosion Control Plan, Construction Best Management Practices dated 03/20/2023, as provided to the City on 10/26/2023, and exhibits titled "Di Vittorio Parking" prepared by Aitken Associates, consisting of three sheets (L-1, L-2 and L-3), labeled Tree Replacement Plan, Shrub Replacement Plan and Planting and Tree Protection Details dated 10/26/2023, except as may be amended by the conditions contained in this resolution. 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. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. U-1996-14 and TR-2022-034 shall be applicable to this approval. 4. BUILDING PERMIT REQUIRED This approval does not constitute building permit approval; a separate building permit review and approval is required. Page 2 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department Planning Division — Cupertino CUPERTINO 5. CONS1AP.TF "�,_9N WITH OTHER DEPARTMENTS Case # The DppJ 629sponsible for consulting other departments and/or agencies with reg�ndc nfJ,v@bFrf!6posed project for additional conditions and requirements. Any Approva I Bod : irreepcjoretan of any submitted data may invalidate an approval by the Approva I DateConfDW�y Development Department. Signature ti� OP TNA r'n�?TIONS OF APPROVAL The conc�itionseof approval set forth shall be incorporated into and annotated on the first page of the building plans. 7. SURFACE PARKING LOT The new surface parking lot shall: a. Conform with the Department of Public Works City of Cupertino Standard Detail document for drive aisle widths. Prior to final building permit issuance, the applicant shall provide a revised site plan demonstrating compliance with the minimum two-way drive aisle width of 24'. b. Parking stall length may be decreased by up to two feet but must provide an equivalent vehicle overhang into landscaped areas. The Landscaping Plan demonstrate, prior to issuance of building permits, in a manner to indicate that proposed landscaping does not conflict with the vehicle overhang. c. Indicate that the existing canopy columns over the Accessible parking stall do not encroach into any new parking spaces proposed. Stalls adjacent to columns shall provide an extra six-inches clearance on all sides as required by the Municipal Code. d. Landscape areas shall be enclosed by a six-inch wide continuous flat curb allowing parking lot run off into landscaping area, infiltration islands or swales. e. Landscape planter strips at the end of the parking aisles adjacent to a driveway shall be enclosed by a six-inch raised concreted curb with drainage outlets to help delineate the driveways or aisles. f. Concrete wheel stops shall be placed on top of the flat curb and shall be provided at a rate of one per two stalls. g. Incorporate bio-swales in the required landscaping areas at the end of the parking aisles. 8. 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 Requirements. In the event changes are proposed from the approved plans, said Page 3 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department Pla-hninNDisniaid Ibe-&U*vtl,6(and approved by the Director of Community Development CUPERTINO or theAPPIRO"(D. The applicant shall provide all documentation required to Case # deteMP2Mnikonce with the Municipal Code. Application Numbers) 9. PARKING LOT LIGHTING Approval Bocayl' Ire for to nor teouanc- of building final inspections/sign off, the applicant shall: Approval Date„ �?�19�31 z �gh ' plat. otometric plans per the submittal requirements of Signature DanejtgrtgLaitq ase Manager b. Indicate compliance with applicable requirements for the proposed lighting pursuant to Chapter 19.102.040(B), including but not limited to the following: i. All outdoor lighting shall be fully shielded fixtures, directed downward to meet the particular need and away from adjacent properties and rights-of way to avoid light trespass. ii. No exterior light, combination of exterior lights, or activity shall cast light exceeding zero point one(0.1)foot-candle onto an adjacent or nearby property, with the illumination level measured at the property line between the lot on which the light is located and the adjacent lot, at the point nearest to the light source, except if two adjacent properties are non-residential. iii. All light sources shall have a maintained correlated color temperature of 3,000 Kelvin or less. iv. Floodlights shall not be permitted. v. Parking lot lights shall not exceed a height of 21 feet, and any wall-mounted lights shall not exceed a height of 12 feet, measured from the adjacent grade to the bottom of the fixture. vi. All outdoor lighting, including any landscape lighting, shall be fully extinguished or be motion sensor operated by 11:00 p.m. or when people are no longer present in exterior areas, except for any lighting at building entrances, parking areas, walkways, and driveways area required to remain illuminated after 11:00 p.m.by the California Building Code or state law. c. Indicate on submitted plan how new lighting fixtures meet the following requirements, in addition to the requirements of Chapter 19.102 outlined in subsection (b) above. In the event of any conflict between the two requirements, the more stringent of the two shall apply: i. Light Color: All lighting shall be 3,000 Kelvin or less unless otherwise approved as part of a development plan for uniformity, not allowing any dark areas in the parking lot. ii. Lighting Glare: Page 4 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department P I a n n i ng'D iv—anlig1E1u§)etdilrlo0l shall be oriented and designed to preclude any light and CUPERTINO APRA&VEglare to adjacent residential properties. Case # D i FJ.-2 c t off-site glare from a light source shall be visible above three feet ApplicatioVu.TF��lic right-of-way. Approval Body: [3iiecUDgMtSAij��fIntensity: Parking lots, sidewalks and other areas accessible to Approva I Date 11 2/flWeNstrians and automobiles shall be illuminated with a uniform and adequate Signature Daniellet"pity. Typical standards to achieve uniform and adequate intensity are: Base V ge Horizontal Maintained Illumination: Between one and three foot- candles 2. Average Maximum to Minimum Ratio: Should be generally between six and ten to one 3. Minimum Intensity above Parking Lot Surface: Minimum three foot- candles vertically above the parking lot surface shall be maintained. iv. Critical Areas: Such as stairways, ramps and main walkways may have a higher illumination. v. Shatter Resistant Lenses: Shatter resistant lenses shall be placed over the light to deter vandalism. 10. TRASH, RECYCLING AND COMPOST ENCLOSURES Trash enclosure plans must be designed to the satisfaction of the Environmental Services Division. Clearance by the Public Works Department is required prior to issuance of any City of Cupertino permits. 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 BAAQMD's CEQA Air Quality Guidelines, as subsequently revised, supplemented, or replaced, to control fugitive dust (i.e., particulate matter PM2.5 and PM1o) during demolition, ground disturbing activities and/or construction. 12. 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. Page 5 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department P I a n n al)iv�igi,(Yt)rea Ct trpwAiwtion, demolition or underground utility work within 750 CUPERTINQ feetAPPlR(8VMtiaI areas shall not occur on Saturdays, Sundays, holidays, and Case # Wt4g0ft-oWttime period as defined in Section 10.48.053(b) of the Municipal Algo -ion Number(s) Approval Bod�d•Df;g& �&(qj8f#activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m. Approva I Date a24 Wgurday and Sunday,9 a.m. to 6 p.m. Construction activities are not allowed Signature Dan, e�gAb4ays as defined in Chapter 10.48 of the Municipal Code. Night time con&tiJir 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. 13. NOISE AND VIBRATION NOTICE a. 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 to off-site businesses and residents within 500 feet of the project site. b. The City will provide a template notice and mailing addresses for the Applicant's use. The final notice must be approved by City staff prior to sending. c. The project applicant shall provide the City with evidence of mailing of the notice, upon request. d. Please note that, if pile driving, the requirements for noticing and monitoring outlined in City Code Section 17.04.050 G (3) shall apply. 14. 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 four feet by six 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; Page 6 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department P l wn n'N(l�ila n-edfikpes—W) (bhe City's and contractor's authorized representatives that c U PE RTC N Q are Avi", 1D respond in the event of a noise or vibration complaint; and Case # d. O&AZU209ation for City's and contractor's authorized representatives that are %1p f R1uM'YKpond in the event of a complaint related to fugitive dust, pursuant Approval Body: Df@ctbF/Waffirements for compliance with BAAOMD's CEOA Air Ouality Approval Date QI'dgltes. Signature Uan*ie Qumtkorized contractor's representative receives a complaint, they shall investi g&,1MZb appropriate corrective action, and report the complaint and the action taken to the City within three business days of receiving the complaint. 15. 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 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 Page 7 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department P I a n n,Era4eWi,si o ni-m§V fbi:raes only. The construction manager will use smart back-up CUPERTINQ alarAR�pR,(h\YdDautomatically adjust the alarm level based on the background noise Case # 1DH4-20 i©2U:)ff back-up alarms and replace with human spotters in compliance AR400RKN3dk-t�)requirements and law. Approva I Bod ff i6NkETW cKr IWE TREE REMOVAL AND REPLACEMENTS Approva I Date « «-es anassociated irrigation, as identified in the exhibits, shall Signature BW 101"41ct-d ;nc+anod to n4it gate the trees removed without appropriate permits, prior toaVanfuilding inspections/sign off. 17. TREE AND LANDSCAPE MAINTENANCE The property owner shall be responsible for ensuring that all trees and landscaping is properly maintained including but not limited to ensuring that there is adequate soil drainage, that the soil is well-aerated, and irrigation systems are thoroughly tested to provide sufficient water to landscaped areas while reducing water waste. 18. PROTECT ARBORIST-COMPLIANCE AND VERIFICATION a. The property owner shall indicate compliance with all Planning conditions related to landscaping/trees on the building permit plans and shall retain a certified arborist to ensure the project conforms these conditions. Prior to final building permit issuance, the applicant shall provide a letter from an ISA Board Certified Master Arborist that the plans conform to the conditions of approval. b. Prior to Final Occupancy, an ISA Board Certified Master Arborist shall confirm in writing that all replacement trees have been planted and transplanted trees have been installed per the procedures outline in the arborist report. 19. TREE AND LANDSCAPE PRESERVATION As part of the demolition or building permit drawings, a tree protection plan shall be prepared by a certified arborist for the trees to be retained. In addition, the following measures shall be added to the protection plan: a. For trees to be retained, chain link fencing and other root protection shall be installed around the dripline of the tree prior to any project site work. The ground under and around the tree canopy area shall not be altered. b. No parking or vehicle traffic shall be allowed under root zones, unless using buffers approved by the Project Arborist. c. No storage of material, topsoil, vehicles or equipment shall be permitted within the tree enclosure area. d. No trenching within the critical root zone area is allowed. If trenching is proposed in the vicinity of trees to be retained, the City's consulting arborist, at the Page 8 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department P l a n n*EQWgi-v�i aitCxn ccoia�j pbatllrLe consulted before any trenching or root cutting beneath CUPERTINQ the -7 PiF MDVCo®the tree. Case # e. T4W6r?�q�iJMdi shall be evenly spread inside the tree projection fence to a four- J fp t td& �I lber(s) Approval Bodyf: DTee&gar,6S &faro conditions shall be posted on the tree protection barriers. Approval Dateg &JnJ trPP-, -,hall he watered, aerated and maintained as necessary to maintain Signature Dand#eiQoiW$;ood health and ensure survival. ase anager h. All an scape material shall be well maintained and replaced, if necessary, to the satisfaction of the Director of Community Development. i. A covenant on the property shall be recorded that identifies all the protected trees, prior to final occupancy. The tree protection measures shall be inspected and approved by the certified arborist prior to issuance of building permits. The Project Arborist shall inspect the trees to be retained and shall provide written reviews, prior to issuance of demolition, grading and/or building permits. A report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. 20. LANDSCAPE PLAN CHANGES Revisions and/or changes to plans before or during construction shall be reviewed and responded to by the(a)project site arborist,or(b)landscape architect with written letter of acceptance before submitting the revision to the Building Department for review by Planning and City Consulting Arborist at the cost of the property owner. 21. 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. 22. LANDSCAPE INSTALLATION REPORT The project is subject to all provisions delineated in the Landscape Ordinance (CMC, Chapter 14.15). A landscape installation audit shall be conducted by a certified landscape professional after the landscaping and irrigation system have been Page 9 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department P1ans&dkl3ivi9lwnf apgstiudDthe assessment shall be consolidated into a landscape c U P E RT C N o installa AMROIMMD. Case # DIR-2023-020 a.w4pgXR-p a a ion report shall include, but is not limited to: inspection to confirm that the landscaping and irrigation system are installed as specified in the Approval Boca Di ector/St ff ylan sca and irrigation design plan, system tune-up, system test with distribution Approval Date . 2/1 �23 r run-off that causes overland flow, and preparation Signature ��z�,o.a„Io Case Manager The landscape installation report shall include the following statement: "The landscape and irrigation system have been installed as specified in the landscape and irrigation design plan and complies with the criteria of the ordinance and the permit." 23. NESTING BIRDS 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: 1) 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 Page 10 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department Planning Divisict&-e GurAstidlib any active nests with eggs or young birds are CUPERTINO APPWwlbed, the project applicant shall retain a qualified ornithologist Case # D I R-2023bOg®gist to identify protective measures. Applica2gn�`t51�'`Ay other demolition, construction and ground disturbing Approval Body: Director/aSt�#ty or the removal of four or more trees, a qualified ornithologist Approva I Date 12/19/23)r biologist shall be retained by the project applicant to conduct the Signature Danielle Conckreconstruction surveys. iii. cif--tkepreconstruction 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, tree removal, etc.), and be Page 11 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department Planning Dimi)iontecC ttp dhu nraatisfaction of the Community Development Director C U PE RTC N O 4RARCIV L®e start of demolition, construction, ground-disturbing, or tree Case # D I Rpu- >_ 94/4�Runing activities. Application Numbers) 24. ARCHAEOLOGICAL RESOURCES AND TRIBAL CULTURAL RESOURCES Approval BodyPri 'I re to{{he issuance of any demolition, grading or building permit involving soil Approva I Date ?9/23 rr-aiffet dppRcant shall indicate compliance with the City's Signature QaAgi�& 4 AL real a+od to o rr.a,apological Resources and Tribal Cultural Resources as C se M g e r adopted in Chapter 17.04. 25. HUMAN REMAINS AND NATIVE AMERICAN BURIALS Prior to the issuance of any demolition, grading or building permit involving soil disturbance, the project applicant shall, include on plans a note that, during project construction, the project applicant shall comply with California Health and Safety Code Section 7050.5, California Public Resources Code Section 5097.98 and indicate compliance (via notes on the project plans) with the adopted standards related to Human Remains and Native American Burials in Chapter 17.04. 26. 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 Page 12 of 13 10275 N.De Anza Blvd DIR-2023-020,TR-2023-051 November 28,2023 Community Development Department Plannindc9ivi.vider-MdpeAiGwil Procedure section 1021.5, assessed or awarded against CuPERTCNQ the inARiRiNO parties. The Applicant shall cooperate with the City to enter a Case # ReirMRiP2 &02!Qgreement to govern any such reimbursement. Application Number(s) The Applicant shall agree to (without limitation) reimburse the City for all costs Approval Bodyincur r Wri�atdditional investigation or study of, or for supplementing, redrafting, Approva I Dater .1 A 9/23 ment (such as an Environmental Impact Report, Signature Mara+iop, spocifir.plan, or general plan amendment) if made necessary by se Man er procee rugs 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. 27. 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. This Director's approval is effective December 19111, 2023. The 14-calendar-day appeal period will expire on January 2, 2024. Enclosures: Attachment A: Approved Exhibits Page 13 of 13