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TR-2022-004 ActionLetterCUPERTINO February 1, 2022 DEPARTMENT OF COMMUNITY DEVELOPMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 (408) 777-3308 • FAX (408) 777-3333 • planningCcupertino.org Scott Galka (Scott Galka Architects) 6239 San Pablo Ave. Oakland, CA 94606 SUBJECT: TREE REMOVAL PERMIT ACTION LETTER — Application TR-2022-004 This letter confirms the decision of the Director of Community Development, given on February 1, 2022, approving a Tree Removal Permit to allow the removal of one (1) Deodar Cedar tree located at 10621 Tuggle Place measuring between 12- 23-inches in DBH. Staff has made the finding that the protected tree, with a single trunk between twelve inches DBH and twenty-four inches DBH, that are the subject of this tree removal permit, will be replaced by planting the required 24-inch box or 36-inch box trees in accordance with Chapter 14.18: Protected Trees. This finding is necessary to grant the tree removal permit in accordance with Section 14.18.180 (A)(4) of the Protected Trees Ordinance. The application is approved with the following conditions: 1. APPROVED PROJECT This approval for tree removal is based on information provided in the landscape plans titled "Accessory Dwelling Unit: 10623 Tuggle Place, Cupertino, CA " submitted by the applicant, dated October 26, 2021. Approval is granted for the removal of one (1) tree as indicated for removal on the property. Approval has not been granted for the removal of any other Protected Trees. 2. TREE REPLACEMENT The required replacement trees have been recommended in the arborist report. They shall be in conformance with Chapter 14.18: Protected Trees, with the replacements being either two 24-inch box or one 36-inch box native oak species per tree removed. The applicant shall provide the Department of Community Development adequate documentation, including but not limited to photographs, receipts or invoices, to verify that the replacement trees have been planted. 3. PROTECTED TREES The applicant understands that replacement trees may not be removed without a Tree Removal Permit and that they shall be responsible for ensuring the proper maintenance and care of the tree. The applicant shall also disclose the location and species of all replacement trees on site upon sale of the property. 4. NESTING BIRDS Nests of raptors and other birds shall be protected when in active use, as required by the federal Migratory Bird Treaty Act and the California Department of Fish and _Game Code. a. Construction and tree removal/pruning activities shall be scheduled to avoid the nesting season to the extent feasible. If feasible, tree removal and/or pruning shall be completed before the start of the nesting season to help preclude nesting. The nesting season for most birds and raptors in the San Francisco Bay area extends from February 1 through August 31. Preconstruction surveys (described below) are not required for tree removal or construction activities outside the nesting period. b. If construction activities and any required tree removal occur during the nesting season (February 1 and August 31), a qualified ornithologist shall be required to conduct surveys prior to tree removal or construction activities. Preconstruction surveys shall be conducted no more than 14 days prior to the start of tree removal, pruning or construction. Preconstruction surveys shall be repeated at 14-day intervals until construction has been initiated in the area after which surveys can be stopped. During this survey, the ornithologist shall inspect all trees and other possible nesting habitats in and immediately adjacent to the construction areas for nests. c. If the survey does not identify any nesting birds that would be affected by construction activities, no further mitigation is required. If an active nest containing viable eggs or young birds is found sufficiently close to work areas to be disturbed by these activities, their locations shall be documented, and protective measures implemented under the direction of the qualified ornithologist until the nests no longer contain eggs or young birds. d. Protective measures shall include 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, 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 biologist, if project activities are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced by the qualified 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. e. 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 submitted to the Planning Manager, through the building permit review process, and be completed to the satisfaction of the Community Development Director prior to the start of grading. 5. INDEMNIFICATION AND LIMITATION OF LIABILITY As part of the application, to the fullest extent permitted by law, the applicant shall agree to indemnify, defend with the attorneys of the City's choice, and hold harmless the City, its City Council, and its officers, employees, and agents (collectively, the "indemnified parties") from and against any liability, claim, action, cause of action, suit, damages, judgment, lien, levy, or proceeding (collectively referred to as "proceeding") brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the applicant related to any Ordinance, Resolution, or action approving the project, the related entitlements, environmental review documents, finding or determinations, or any other permit or approval authorized for the project. The indemnification shall include but not be limited to damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys' fees, and other costs, liabilities, and expenses incurred in connection with such proceeding whether incurred by the Applicant, the City, or the parties initiating or bringing such proceeding. The applicant shall agree to (without limitation) reimburse the City its actual attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and costs shall include amounts paid to the City's outside counsel and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. The applicant shall likewise agree to indemnify, defend, and hold harmless the indemnified parties from and against any damages, attorneys' fees, or costs awards, including attorneys' fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against the indemnified parties. The Applicant shall cooperate with the City to enter a Reimbursement Agreement to govern any such reimbursement. The Applicant shall agree to (without limitation) reimburse the City for all costs incurred in additional investigation or study of, or for supplementing, redrafting, revising, or amending, any document (such as an Environmental Impact Report, negative declaration, specific plan, or general plan amendment) if made necessary by proceedings challenging the project approvals and related environmental review, if the applicant desires to continue to pursue the project. The Applicant shall agree that the City shall have no liability to the Applicant for business interruption, punitive, speculative, or consequential damages. Please note that an appeal of this decision may be made within 14 calendar days from the date of this letter. Do NOT REMOVE THE TREE(S) until the end of the appeal period. If an appeal is filed, you will be notified of a public hearing, which will be scheduled before the Planning Commission. Sincerely, Gian Paolo Martire Senior Planner (408) 777-3319 gianm@cul2ertino.org