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TR-2012-41b OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE• CUPERTINO, CA 95014-3255 C U P E RT 1 N O TELEPHONE: (408)777-3223• FAX: (408)777-3366 To: Planning Department From: Kirsten Squarcia Subject: Subject: Saich Way Station site plan modifications to a previously approved Development Permit, Architectural and Site Permit and a Tree Removal Permit Date: July 22, 2013 On July 16 the City Council made the following action: A. ADOPTED RESOLUTION NO. 13-048 APPROVING MODIFICATIONS TO DP-2012-05; B. ADOPTED RESOLUTION NO. 13-049 APPROVING MODIFICATIONS TO ASA-2012-13; C. ADOPTED RESOLUTION NO. 13-050 APPROVING MODIFICATIONS TO TR-2012-41; WITH THE CONDITION: THE OVERALL SITE PLAN SHALL BE MODIFIED TO ELIMINATE ONE PARKING STALL ALONG THE TWO-WAY DRIVEWAY FROM STEVENS CREEK BOULEVARD TO INCREASE THE DRIVEWAY THROAT SETBACK TO AT LEAST 50 FEET FROM STREET CURB TO THE EDGE OF THE SOUTHERNMOST PARKING STALL IN THE ROW. THE PROJECT IS PERMITTED TO HAVE A REQUIRED PARKING SUPPLY DEFICIENT OF ONE PARKING STALL, FOR A TOTAL ONSITE SUPPLY OF 79 PARKING SPACES. THE FINAL DETAILS SHALL BE PROVIDED TO THE CITY FOR REVIEW AND APPROVAL PRIOR TO BUILDING PERMIT ISSUANCE. OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 C U P E RT I N O TELEPHONE: (408)777-3223• FAX: (408)777-3366 �July 18, 2013 Subject: Saich Way Station site plan modifications to a previously approved Development Permit, Architectural and Site Permit and a Tree Removal Permit Descri�tion: Application No(s): DP-2012-05, ASA-2012-13, TR-2012-41 (EA-2012-09); Applicant(s): Borelli Investments; Location: 20803 Stevens Creek Blvd, 10033-10095 Saich Way; Site Modifications to a previously approved Development Permit to allow the demolition of 11,610 square feet of existing commercial space and the construction of 15,650 square feet of new commercial space consisting of two new commercial building pads, 7,000 square feet and 8,650 square feet respectively; Site Modifications to a previously approved Architectural and Site Permit to allow the demolition of 11,610 square feet of existing commercial space and the construction of 15,650 square feet of new commercial space consisting of two new commercial building pads and associated site improvements; Site Modifications to a previously approved Tree Removal Permit to allow the removal and replacement of 13 trees in conjunction with a proposed development project At its July 16 meeting, the Cupertino City Council made the following action: Approved site plan modifications to the previously approved EA-2012-09: A. Adopted Resolution No. 13-048 approving modifications to DP-2012-05; B. Adopted Resolution No. 13-049 approving modifications to ASA-2012-13; C. Adopted Resolution No. 13-050 approving modifications to TR-2012-41; with the condition: the overall site plan shall be modified to eliminate one parking stall along the two-way driveway from Stevens Creek Boulevard to increase the driveway throat setback to at least 50 feet from street curb to the edge of the southernmost parking stall in the row. The project is permitted to have a required parking supply deficient of one parking stall, for a total onsite supply of 79 parking spaces. The final details shall be provided to the City for review and approval prior to building permit issuance. Also attached are the resolutions that Council approved at the meeting. DP-2012-05, ASA-2012-13,TR-2012-41 (EA-2012-09) July 16, 2013 Page 2 Any interested person, including the applicant, prior to seeking judicial review of the city council's decision in this matter, must first file a petition for reconsideration with the city clerk within ten days after the council's decision. Any petition so filed must comply with municipal ordinance code §2.08.096. Sincerely, ���� Kirsten Squarcia Deputy City Clerk Encl.: 13-048, 13-049, 13-050 cc: City Attorney Community Development Borelli Investment Company Dennis Whittaker Attn: Tom Purtell 20622 Cheryl Drive 2051 Junction Avenue #100 Cupertino, CA 95014 San Jose, CA 95131 Darrel Lum FCGA Architects 20395 Pacifica Drive Attn: Galen Grant Cupertino, CA 95014 3013 Hartz Ave. #213 Danville, CA 9452 Concerned Citizens of Cupertino 7746 Orogrande Place Cupertino, CA 95014 P RESOLUTION N0. 13-050 OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING SITE MODIFICATIONS TO A PREVIOUSLY APPROVED TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF 13 TREES IN CONjUNCTION WITH A PROPOSED DEVELOPMENT PROJECT LOCATED AT 20803 STEVENS CREEK BLVD AND 10033-10095 SAICH WAY SECTION I: PROTECT DESCRIPTION Application No.: TR-2012-41 Applicant: Tom Purtell (Borelli Investment Co.) Property Owner: Diana Taylor Location: 20803 Stevens Creek Boulevard and 10033-10095 Saich Way (APNs 326-32- 041 and 326-32-042, respectively) SECTION II: FINDINGS FOR A TREE REMOVAL PERMIT: WHEREAS, the City Council of the City of Cupertino received an application for site modifications to a previously approved Tree Removal Permit as described in Section I. of this Resolution; and WHEREAS, the City Council has adopted a Mitigated Negative Declaration (EA-2012-09); and WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the City Council has held at least one public hearing in regard to the application; and WHEREAS, the applicant has met the burderi of proof required to support said ap�lication; and WHEREAS, the City Council finds as follows with regard to this application: WHEREAS, the City Council finds as follows with regard to this application: a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; The City's consulting arl�orist has determined that tlie trees �roposed fo�� removal are all in conflict witli tlze pr�oposed new buildings and site improvements, and, given tl2eir condition, are not suital�le for preservation or relocation. b) That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not typically experienced by owners of similarly Resolut�on No. 13-050 Page 2 zoned and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). Tlze City's consulting arborist has determined tliat the trees �roposed for removal are all in conflict witli tlie proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or ��elocation. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of the maps, facts, exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: The site modifications to Tree Removal Permit, Application no. TR-2012-41 are hereby approved, and that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. TR-2012-41 as set forth in the Minutes of the City Council Meeting of July 16, 2013, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. CITY COUNCIL-REQUIRED MODIFICATION Per the City Council's approval on July 16, 2013, the overall site plan shall be modified to eliminate one parking stall along the two-way driveway from Stevens Creek Boulevard to increase the driveway throat setback to at least 50 feet from street curb to the edge of the southernmost parking stall in the row. The project is permitted to have a required parking supply deficient of one parking stall, for a total onsite supply of 79 parking spaces. The final details shall be provided to the City for review and approval prior to building permit issuance. 2. SUPERCEDANCE OF CITY COUNCIL RESOLUTION NO. 13-017 City Council Resolution no. 13-017 is hereby superceded with the conditions contained in this resolution. 3. APPROVED EXHIBITS Approval is based on the plan set consisting of 6 sheets labeled A1g (received July 18, 2013), A2 (received July 18, 2013), Building 1 Exterior Elevations (received July 18, 2013), A3 (received July 18, 2013), Building 2 Exterior Elevations (received July 18, 2013), and C-1 (received July 19, 2013), entitled, "Saich Way, 20803 Stevens Creek Blvd., Cupertino, California, Borelli Investment Co.,"drawn by FCGA Architecture and HMH; the consulting arborist peer review report entitled, "A Review of the Existing Trees at the Saich Way Resolution No. 13-050 � • Page 3 Station Project, Stevens Creek and Saich Way, Cupertino, California," prepared by Michael Bench, Registered Consulting Arborist # WE-1897 dated November 2012; and the arborist report entitled, "Borelli Investment Company, 20803 Stevens Creek Boulevard/10033-10095 Saich Way, Pre-Construction Tree Protection Plan," prepared by Samuel Oakley, Certified Arborist # WE-9474A dated June 18, 2012; except as may be amended by conditions in this resolution. 4. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. DP-2012-05 and ASA-2012-13 sha11 be applicable to this approval. 5. TREE REPLACEMENTS AND FINAL PLANTING PLAN The applicant shall plant replacement trees in accordance with the replacement requirements of the Protected Tree Ordinance. Street trees along Stevens Creek Boulevard and Saich Way shall be consistent with the Heart of the City Specific Plan. The trees shall be planted prior to final occupancy of site permits. The final planting plan shall be reviewed and approved by the Director of Community Development with consultation by the City Arborist prior to issuance of building permits. The Director of Community Development shall have the discretion to require additional tree replacements as deemed necessary. The City Arborist shall confirm that the replacement trees were planted properly and according to plan prior to final occupancy. 6. TREE REPLACEMENT BOND The applicant shall provide a tree replacement bond in an amount determined by the City Arborist prior to removals and issuance of demolition and grading permits. The bond shall be returned after the required tree replacements have been planted and verified by the City Arborist. 7. SCHEDULING OF TREE REMOVALS TO AVOID IMPACTS TO NESTING BIRDS The project shall implement the following measures to avoid impacts to nesting birds: a) Removal of trees on the project site could be scheduled between September and December (inclusive) to avoid the nesting season for birds and no additional surveys would be required. b) If removal of the trees on-site is planned to take place between January and August (inclusive), a pre-construction survey for nesting birds shall be conducted by a qualified ornithologist to identify active nesting raptor or other bird nests that may be disturbed during project implementation. Between January and April (inclusive) pre-construction surveys shall be conducted no more than 14 days prior to the initiation of construction Resolution No. 13-050 Page 4 activities or tree relocation or removal. Between May and August (inclusive), pre- construction surveys shall be conducted no more than thirty (30) days prior to the initiation of these activities. The surveying ornithologist shall inspect all trees in and immediately adjacent to the construction area for nests. If an active raptor nest is found in or close enough to the construction area to be disturbed by these activities, the ornithologist shall, in consultation with the State of California, Department of Fish & Game (CDFG), designate a construction-free buffer zone (typically 250 feet) around the nest until the end of the nesting activity. Buffers for other birds shall be determined by the ornithologist. c) A report summarizing the results of the pre-construction survey and any designated buffer zones or protection measures for tree nesting birds shall be submitted to the Community Development Director prior to the start of grading or tree removal. 8. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with 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. 9. INDEMNIFICATION To the extent permitted by law; the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this ordinance or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys' fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its choice. 10. 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. Resolution No. 13-050 Page 5 PASSED AND ADOPTED this 16th day of July, 2013, Regular Meeting of the City Council of the City of Cupertino, State of California, by the following roll call vote: AYES: Mahoney, Wong, Chang, Santoro, Sinks NOES: None ABSTAIN: None ABSENT: None ATTEST: APPROVED: /s/Grace Schmidt /s/Orrin Mahoney Grace Schmidt Orrin Mahoney, Mayor City Clerk City of Cupertino � OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 C U P E RT I N O TELEPHONE: (408) 777-3223• FAX: (408) 777-3366 February 21, 2013 Re: Subject: Consider an appeal of a Planning Commission approval of a proposed development at Saich Way Station At its February 19 meeting, the Cupertino City Council made the following action: Adopted the resolutions denying the appeal and upholding the Planning Commission's approval of the development applications(DP-2012-05, ASA-2012-13,TR-2012-41) and Mitigated Negative Declaration(EA-2012-09) with the following modifications: • T'he row of parking stalls along the shared two-way driveway entry from Stevens Creek Blvd. shall be removed; • The building pad for Shop 7 may be reconfigured accordingly to encompass the area of the abovementioned removed stalls and new parking stalls may be provided on the north side of the building; • The Stevens Creek Blvd shared access driveway between the project site and the property to the west shall be a two-way driveway; • The existing on-street parallel parking stalls along Saich Way shall be retained (does not include the relocation of the existing bus layover location); • Shop 6 shall be moved to the north to be attached to the rear retail building (which includes shops/restaurants 1-5); • A new two-way drive aisle shall be provided to the north of Shop 7, connecting the drive aisle behind the Peet's/Panera building (to the west of the project site) to Saich Way to the east; • The applicant shall consult with the property owner to the west to discuss the potential removal/relocation of the existing trash enclosure along the west property line of the project site in order Eo accommodate a new access connection to the project site; and • The required parking for the project shall remain consistent with the City's parking ordinance. In the.event that the applicant does not provide all of the required modifications noted above, the project shall be brought back to the city council for review and approval prior to issuance of building and grading permits. Also attached are the resolutions that Council approved at the meeting. DP-2012-05,ASA-2012-13,TR-2012-41 � February 21, 2013 Page 2 Please review conditions carefully. If you have any questions regarding the conditions of approval, please contact the Department of Community Development at 408-777-3308 for clarification. Failure to incorporate conditions into your plan set will result in delays at the plan checking stage. If development conditions require tree preservations, do not clear the site until required tree protection devices are installed. The conditions of project approvai set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d)(1), tkese conditions constitute written notice of a state�nent of tke amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby f�urther notified that the 90-day approval period in which you may protest these fees, dedications, 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. Any interested person, including tke a�plicant, prior to seeking judicial review of the City Council's decision in this matter, must first file a Petition for Reconsideration with tke City Clerk within ten days after the mailing of the notice of the Council's decision. Any petition so filed must comply with Municipal Ordinance code §2.08.096. Sincerely, Kirsten Squarcia Deputy City Clerk cr. City Attorney Community Development Borelli Investment Company Attn: Darrel Lum Tom Purtell 20622 Cheryl Drive 2051 Junction Avenue#100 Cupertino, CA 95014 San Jose, CA 95131 Dennis Whittaker FCGA Architects 20395 Pacifica Drive Attn: Galen Grant Cupertino,CA 95014 3013 Hartz Ave. #213 Danville, CA 9452 Concerned Citizens of Cupertino 7746 Orogrande Place Cupertino, CA 95014 DP-2012-05, ASA-2012-13,TR-2012-41 February 21,2013 Page 2 Please review conditions carefully. If you have any questions regarding the conditions of approval, please contact the Department of Community Development at 408-777-3308 for clarification. Failure to incorporate conditions into your plan set will result in delays at the plan checking stage. If development conditions require tree preservations, do not clear the site until required tree protection devices are installed. 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, 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. Any interested person, including the applicant, prior to seeking judicial review of the City Council's decision in this matter, must first file a Petition for Reconsideration with the City Clerk within ten days after the mailing of the notice of the Council's decision. Any petition so filed must comply with Municipal Ordinance code§2.08.096. Sincerely, , . � . , . Kirsten Squarcia • Deputy City Clerk ' cc: City Attorney Community Development Diana Taylor Arie Bash, 5539 W Bluff Ave. P.O. Box 2747 Fresno, CA 93722 Sunnyvale, CA 94087 Stevens Creek Cupertino Associates Harvest Properties, Inc. Attn: Barry Watkins Attn:J. Blair Volckmann 8502 E Chapman Ave. #601, 6475 Christie Ave. #550 Orange, CA 92869 Emeryville, CA 94608 RESOLUTION N0. 13-017 OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION'S JANUARY 8, 2013 APPROVAL OF A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF 13 TREES IN CONJUNCTION WITH A PROPOSED DEVELOPMENT PROJECT LOCATED AT 20803 STEVENS CREEK BLVD AND 10033-10095 SAICH WAY SECTION I: PROTECT DESCRIPTION Application No.: TR-2012-41 Applicant: Tom Purtell (Borelli Investment Co.) Property Owner: Diana Taylor Appellants: Darrel Lum and Dennis Whittaker Location: 20803 Stevens Creek Boulevard and 10033-10095 Saich Way (APNs 326-32-041 and 326-32-042, respectively) SECTION II: FINDINGS FOR A TREE REMOVAL PERMIT: WHEREAS, the City Council of the City of Cupertino received an appeal of the Planning Commission's January 8, 2013 approval of a Tree Removal Permit as described in Section I. of this Resolution; and WHEREAS, the Environmental Review Committee has recommended adoption of a Mitigated Negative Declaration; and WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Planning Commission and City Council has held at least one public hearing in regard to the application; and WHEREAS, the applicant has met the burden of proof required to support said application; and WHEREAS, the City Council finds as follows with regard to this application: a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied Resolution No. 13-017 Page 2 through reasonable relocation or modification of the structure or utility services; The City's consulting arborist has determined that the trees proposed for removal are all in conflict with the proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or relocation. b) That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not typically experienced by owners of similarly zoned and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). The City's consulting arborist has determined that the trees proposed for removal are all in conflict with the proposed new buildings and site improvements, and, given their condition, are not suitable for preservation or relocation. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of the initial study, maps, facts, exhibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: A Mitigated Negative Declaration (Application no. EA-2012-09) is hereby adopted; and the appeal of an application for a Tree Removal Permit, Application no. TR- 2012-41 is hereby denied and the Planning Commission's January 8, 2013 approval is hereby upheld, and that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. TR-2012-41 as set forth in the Minutes of Planning Commission Meeting of January 8, 2013 and City Council Meeting of February 19, 2013, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. CITY COUNCIL-REQUIRED MODIFICATIONS Per the City Council's approval on February 19, 2013, the following modifications to the site plan shall be required for the project and shall be provided to the City for review and approval prior to building permit issuance: Resolution No. 13-017 Page 3 a. The row of parking stalls along the shared two-way driveway entry from Stevens Creek Blvd shall be removed; b. The building pad for Shop 7 may be reconfigured accordingly to encompass the area of the abovementioned removed stalls and new parking stalls may be provided on the north side of the building; c. The Stevens Creek Blvd shared access driveway between the project site and the property to the west shall be a two-way driveway; d. The existing on-street parallel parking stalls along Saich Way shall be retained (does not include the relocation of the existing bus layover location); e. Shop 6 shall be moved to the north to be attached to the rear retail building (which includes shops/restaurants 1-5); f. A new two-way drive aisle shall be provided to the north of Shop 7, connecting the drive aisle behind the Peet's/Panera building (to the west of the project site) to Saich Way to the east; g. The applicant shall consult with the property owner to the west to discuss � the potential removal/relocation of the existing trash enclosure along the ` west property line of the project site in order to accommodate a new access connection to the project site; and h. The required parking for the project shall remain consistent with the City's Parking Ordinance. In the event that the applicant does not provide all of the required modifications noted above, the project shall be brought back to the City Council for review and approval prior to issuance of building and grading permits. 2. APPROVED EXHIBITS Approval is based on the plan set dated December 14, 2012 consisting of 27 sheets labeled T1, A0, A1, A2, Building 1 Exterior Elevations, A3, Building 2 Exterior Elevations, A4, D1, D2, D3, D4, D5, M1, L-1, L-2, C-1, C-2, C-3, C-3.1, C-3.2, C-4, C-5, C-6, C-7, C-8, and Photometric Plan, entitled, "Saich Way, 20803 Stevens Creek Blvd., Cupertino, California, Borelli Investment Co." drawn by FCGA Architecture, Borrecco/Kilian & Associates, Inc., and HMH; the consulting arborist peer review report entitled, "A Review of the Existing Trees at the Saich Way Station Project, Stevens Creek and Saich Way, Cupertino, California," prepared by Michael Bench, Registered Consulting Arborist # WE-1897 dated November 2012; and the arborist report entitled, Resolution No. 13-017 Page 4 "Borelli Investment Company, 20803 Stevens Creek Boulevard/10033-10095 Saich Way, Pre-Construction Tree Protection Plan," prepared by Samuel Oakley, Certified Arborist # WE-9474A dated June 18, 2012; except as may be amended by conditions in this resolution. 3. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. DP-2012-05 and ASA-2012- 13 shall be applicable to this approval. 4. TREE REPLACEMENTS AND FINAL PLANTING PLAN The applicant shall plant replacement trees in accordance with the replacement requirements of the Protected Tree Ordinance. Street trees along Stevens Creek Boulevard and Saich Way shall be consistent with the Heart of the City Specific Plan. The trees shall be planted prior to final occupancy of site permits. The final planting plan shall be reviewed and approved by the Director of Community Development with consultation by the City Arborist prior to issuance of building permits. The Director of Community Development shall have the discretion to require additional tree replacements as deemed necessary. The City Arborist shall confirm that the replacement trees were planted properly and according to plan prior to final occupancy. 5. TREE REPLACEMENT BOND The applicant shall provide a tree replacement bond in an amount determined by the City Arborist prior to removals and issuance of demolition and grading permits. The bond shall be returned after the required tree replacements have been planted and verified by the City Arborist. 6. SCHEDULING OF TREE REMOVALS TO AVOID IMPACTS TO NESTING BIRDS T'he project shall implement the following measures to avoid impacts to nesting birds: a) Removal of trees on the project site could be scheduled between September and December (inclusive) to avoid the nesting season for birds and no additional surveys would be required. Resolution No. 13-017 Page 5 b) If removal of the trees on-site is planned to take place between January and August (inclusive), a pre-construction survey for nesting birds shall be conducted by a qualified ornithologist to identify active nesting raptor or other bird nests that may be disturbed during project implementation. Between January and April (inclusive) pre-construction surveys shall be conducted no more than 14 days prior to the initiation of construction activities or tree relocation or removal. Between May and August (inclusive), pre-construction surveys shall be conducted no more than thirty (30) days prior to the initiation of these activities. The surveying ornithologist shall inspect all trees in and immediately adjacent to the construction area for nests. If an active raptor nest is found in or close enough to the construction area to be disturbed by these activities, the ornithologist shall, in consultation with the State of California, Department of Fish & Game (CDFG), designate a construction-free buffer zone (typically 250 feet) around the nest until the end of the nesting activity. Buffers for other birds shall be determined by the ornithologist. c) A report summarizing the results of the pre-construction survey and any designated buffer zones or protection measures for tree nesting birds shall be submitted to the Community Development Director prior to the start of grading or tree removal. 7. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with 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. S. INDEMNIFICATION To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, s�t aside, or void this ordinance or any permit or approval authorized hereby far the project, including (without limitation) reimbursing the City its actual attorneys' fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its choice. Resolution No. 13-017 Page 6 9. 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. PASSED AND ADOPTED this 19th day of February, 2013, Regular Meeting of the City Council of the City of Cupertino, State of California, by the following roll call vote: AYES: Mahoney, Santoro, Sinks, Wong NOES: Chang ABSTAIN: None ABSENT: None ATTEST: APPROVED: /s/Grace Schmidt /s/Orrin Mahoney Grace Schmidt Orrin Mahoney, Mayor City Clerk City of Cupertino THIS IS TO CERTIFY THAT THE WITHIN INSTRUMENT IS A TRUE AND CORRECT COPY OF THE ORIGINAL ON FILE IN THIS OFFICE ATTEST ���``_'"� 2� . 20_/� CITY CLERK OF THE CIN OF CUPERTINO BY �=`�-�� �,,� GITY ERK City of Cupertino 10300 Torre Avenue Cupertino,CA 95014 (408) 777-3308 C U P E RT 1 N O FAX (408) 777-3333 Commitnih� Development Department January 9, 2013 Borelli Investment Company Attn: Tom Purtell 2051 Junction Ave. #100 San Jose, Ca. 95131 SUBJECT: PLANNING COMMISSION ACT'ION LETTER-DP-2012-05, ASA-2012-13, TR-2012-41 This letter confirms the decision of the Planning Commission, given at the meeting of January 8, 2013, approving a Development Permit to allow the demolition of 11,610 square feet of existing commercial space and the construction of 15,377 square feet of new commercial space consisting of two new commercial pads, 7,000 square feet and 8,377 square feet respectively; an Architectural and Site approval to allow the demolition of 11,610 square feet of existing commercial space and the construction of 15,377 square feet of new commercial space consisting of two new commercial pads and associated site improvements and Tree Removal Permit to allow the removal and replacement of 13 trees in conjunction with a proposed development project, located at 20803 Stevens Creek Boulevard and 10033-10095 Saich Way, according to Planning Commission Resolution No.(s) 6714, 6715 and 6716. Please be aware that if this Permit is not used within a two-year period, it shall expire on January 8, 2015. Also, please note that an appeal of this decision can be made within 14 calendar days from the mailing of the notice of the decision. If this happens, you will be notified of a public hearing, which will be scheduled before the City Council. Sincerely, George Schroeder Assistant Planner Planning Department Enclosures: Resolution 6714, 6715 and 6716 CC:Diana Taylar,5539 W Bluff Ave, Fresno CA 93722 FCGA Architects, Attn:Galen Grant, 301 Hartz Ave.#213,Danville CA 94526 Darrel Lum,7746 Orogrande Pl, Cupertino CA 95014 Stevens Creek Cupertino Associates, Attn:Barry Watkins, 8502 E Chapman Ave#601, Orange CA 92869 Arie Bash, P.O.Box 2747, Sunnyvale CA 94087 Harvest Properties,Inc.,Attn:J.Blair Volckmann,6475 Christie Ave#550, Emeryville CA 94608 TR-2012-41 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6716 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING A TREE REMOVAL PERMIT TO ALLOW THE REMOVAL AND REPLACEMENT OF 13 TREES IN CONJUNCTION WITH A PROPOSED DEVELOPMENT PROJECT LOCATED AT 20803 STEVENS CREEK BLVD AND 10033- 10095 SAICH WAY SECTION I: PROTECT DESCRIPTION Application No.: TR-2012-41 Applicant: Tom Purtell(Borelli Investment Co.) Property Owner: Diana Taylor Location: 20803 Stevens Creek Boulevard and 10033-10095 Saich Way (APNs 326-32-041 and 326-32-042, respectively) SECTION II: FINDINGS FOR DEVELOPMENT PERMIT: WHEREAS, the Planning Commission of the City of Cupertino received an application for a Tree Removal Permit as described in Section I. of this Resolution; and WHEREAS, the Environmental Review Committee has recommended adoption of a Mitigated Negative Declaration; and WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the application; and WHEREAS, the applicant has met the burden of proof required to support said application; and WHEREAS, the Planning Commission finds as follows with regard to this application: a) That the trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; b) That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not typically experienced by owners of similarly zoned and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). Resolution No.6716 TR-2012-41 January S,2013 NOW,THEREFORE,BE IT RESOLVED: That after careful consideration of the initial study, maps, facts, e�ibits, testimony and other evidence submitted in this matter, subject to the conditions which are enumerated in this Resolution beginning on PAGE 2 thereof,: A Mitigated Negative Declaration (Application no. EA-2012-09) is hereby adopted; and the application for a Tree Removal Permit, Application no. TR-2012-41 is hereby approved and that the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the Public Hearing record concerning Application no. TR-2012-41 as set forth in the Minutes of Planning Commission Meeting of January 8, 2013, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on the plan set dated December 14, 2012 consisting of 27 sheets labeled T1, A0, A1, A2, Building 1 Exterior Elevations, A3, Building 2 Exterior Elevations, A4, D1, D2, D3, D4, D5, M1, L-1, L-2, C-1, C-2, C-3, C-3.1, C-3.2, C-4, C-5, C-6, C-7, C-8, and Photometric Plan, entitled, "Saich Way, 20803 Stevens Creek Blvd., Cupertino, California, Borelli Investment Co." drawn by FCGA Architecture, Borrecco/Kilian & Associates, Inc., and HMH; the consulting arborist peer review report entitled, "A Review of the Existing Trees at the Saich Way Station Project, Stevens Creek and Saich Way, Cupertino, California," prepared by Michael Bench, Registered Consulting Arborist # WE-1897 dated November 2012; and the arborist report entitled, "Borelli Investment Company, 20803 Stevens Creek Boulevard/10033-10095 Saich Way, Pre-Construction Tree Protection Plan," prepared by Samuel Oakley, Certified Arborist # WE-9474A dated June 18, 2012; except as may be amended by conditions in this resolution. 2. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. DP-2012-05 and ASA-2012-13 shall be applicable to this approval. 3. TREE REPLACEMENTS AND FINAL PLANTING PLAN The applicant shall plant replacement trees in accordance with the replacement requirements of the Protected Tree Ordinance. Street trees along Stevens Creek Boulevard and Saich Way shall be consistent with the Heart of the City Specific Plan. The trees shall be planted prior to final occupancy of site permits. The final planting plan shall be reviewed and approved by the Director of Community Development with consultation by the City Arborist prior to issuance of building permits. The Director of Community Development shall have the discretion to require additional tree replacements as deemed necessary. The City Arborist shall confirm that the replacement trees were planted properly and according to plan prior to final occupancy. Resolution No.6716 TR-2012-41 January 8,2013 4. TREE REPLACEMENT BOND The applicant shall provide a tree replacement bond in an amount determined by the City Arborist prior to removals and issuance of demolition and grading permits. The bond shall be returned after the required tree replacements have been planted and verified by the City Arborist. 5. SCHEDULING OF TREE REMOVALS TO AVOID IMPACTS TO NESTING BIRDS The project shall implement the following measures to avoid impacts to nesting birds: a) Removal of trees on the project site could be scheduled between September and December (inclusive) to avoid the nesting season for birds and no additional surveys would be required. b) If removal of the trees on-site is planned to take place between January and August(inclusive), a pre-construction survey for nesting birds shall be conducted by a qualified ornithologist to identify active nesting raptor or other bird nests that may be disturbed during project implementation. Between January and April (inclusive) pre-construction surveys shall be conducted no more than 14 days prior to the initiation of construction activities or tree relocation or removal. Between May and August (inclusive), pre-construction surveys shall be conducted no more than thirty (30) days prior to the initiation of these activities. The surveying ornithologist shall inspect all trees in and immediately adjacent to the construction area for nests. If an active raptor nest is found in or close enough to the construction area to be disturbed by these activities, the ornithologist shall, in consultation with the State of California, Department of Fish & Game (CDFG), designate a construction-free buffer zone (typically 250 feet) around the nest until the end of the nesting activity. Buffers for other birds shall be determined by the ornithologist. c) A report summarizing the results of the pre-construction survey and any designated buffer zones or protection measures for tree nesting birds shall be submitted to the Community Development Director prior to the start of grading or tree removal. 6. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with 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. 7. INDEMNIFICATION To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this ordinance or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys' fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its choice. 8. 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, Resolution No.6716 TR-2012-41 January 8,2013 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. PASSED AND ADOPTED this 8th day of January, 2013, Regular Meeting of the Planning Commission of the City of Cupertino, State of California,by the following roll call vote: AYES: COMMISSIONERS: Chair Miller, Vice Chair Sun, Lee, Brownley NOES: COMMISSIONERS: Brophy ABSTAIN: COMMISSIONERS:none ABSENT: COMMISSIONERS:none ATTEST: APPROVED: /s/Aarti Shrivastava /s/Marty Miller Aarti Shrivastava Marty Miller, Chair Community Development Director Planning Commission G:\Planning\PDREPORT\CCRES\2012\TR-2012-41 res.doc