TR-2021-053 Action Letter (dead) Comm . F lopme t Dee2U,1�6WijeLG4ITY DEVELOPMENT DEPARTMENT
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sion - upe?FANNING DIVISION
�CUPERTIN4 ROVECITY HALL
Case # 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
L=mPORTim"Ti-Q0661Numbers TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CUPERTINO CUPERTINO.ORG
Approval Body: Director/Staff
Approval Date 02/28/22
Signature fig} pWA"@22
Case Manager
Deva Braden
1512 W. Mineral King Ave.
Visalia, CA 93291
SUBJECT: TREE REMOVAL PERMIT ACTION LETTER-Application TR-2021-053
This letter confirms the decision of the Director of Community Development, given on
February 28,2022 approving a Tree Removal Permit to allow the removal of two (2) dead
13-inch DBH and 10-inch DBH California Sycamore trees located in an Industrial (MP)
zoned Planned Unit Development containing offices located at 10900 North Tantau.
Staff has made the finding that the protected trees are dead (based on the definition
provided in Section 14.18.020(D) of the City's Protected Tree Ordinance), and that tree #2
is dead and Tree #1 meets the definition of a dead tree as it has, "declined to such an extent
that its demise is imminent with no opportunity for recovery or repair to a reasonable viable level
as determined by the Director of Community Development."The finding that Tree #2 is dead
was issued by staff is based on the evaluation and recommendations of the City's
consulting arborist,Darya Barar with Bartlett Consulting (ISA Certified Arborist No.WE-
6757A, Registered Consulting Arborist #693) and her peer review of the applicant's
arborist report. The finding is necessary to grant the tree removal permit in accordance
with Cupertino Municipal Code (CMC) Section 14.18.150 Exemptions (B)(2).
The application is approved with the following conditions:
1. APPROVED PROTECT
This approval is based on the revised certified arborist report prepared by Deva
Braden (Certified Arborist, WE-7034A), dated December 10, 2021, consisting of six
pages that include photos of both dead and dying trees, an evaluation of the health of
both sycamore trees, and a tree replacement proposal in the same locations.
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.
10900 N.Tantau Page 2 of 4
Comm(M��-2�0/26ev51I ent Department
t ebrfxary 28,2UZ2
Planning Division — Cupertino
cuPERTCno AnyAR RRPME-Ontation of any property data may invalidate this approval and may
Case # rff14l2®2ddOftal review.
Application Number(s)
3. TREE REPLACEMENT
Approval Body: D ctor t
fRe re uiread replacement trees are two (2) 36-inch box California Sycamore trees to
Approval Date 2 i„ tl,o s,,.,,. i„ca±; as the removed trees on the subject property in the
Signature Cath a eeified on the replacement plan within 30 days of tree removal.The applicant
shallrNHWrthe Department of Community Development adequate documentation,
including but not limited to photographs, receipts, or invoices, to verify that the
replacement trees have been planted.
4. 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.
5. 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
10900 N.Tantau Page 3 of 4
CommT�Ri2�0/ 6ev53I ent Department
ebrfxary Y ?OFT
Planning Division — Cupertino
c U P E RT I N Q A P P R CINE Qualified ornithologist until the nests no longer contain eggs or young
Case # TR-2021 J15:83-
Applicationd'.-1481�ctive measures shall include establishment of clearly delineated
Approval Body: Director/Slusion zones (i.e. demarcated by identifiable fencing, such as orange
Approva I Date 02/28/22 construction fencing or equivalent) around each nest location as
deternitned by ttt alified ornithologist, taking into account the species
Signature Catherine Taron�,f birds nesting the-i tolerance for disturbance and proximity to existing
Case Mana e
dervelopment. 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.
6. 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
10900 N.Tantau Page 4 of 4
CommM �0/16ev51I ent Department
ebrfxary 28,?OF
Planning Division — Cupertino
c u PE RTC n o AttcAiR(RR GkuF-Dnd overhead costs and other City staff overhead costs and any costs
Case # dfRck92*1Nd to the litigation reasonably incurred by City. The applicant shall
AVoLmAxiwNWwW indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys' fees, or costs awards, including attorneys' fees
Approval Body: Dawar°le�Staff
er Code of Civil Procedure section 1021.5, assessed or awarded against
Approval Date +Q,2/28/?2 r;f;od n,,+;o� Tt,o
___� ____s. �,.pplicant shall cooperate with the City to enter a
Signature Cath1kciiMN-amement Agreement to &overn any such reimbursement.
Case Manager
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.
7. NOTICE OF FEES,DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
Please note that an appeal of this decision may be made within 14 calendar days
from the date of this letter. CMC 14.18.150(B)(2) Exemptions, permits the removal
of dead trees before the approval is granted provided that a retroactive tree removal
permit is submitted within 5 days. If an appeal is filed, you will be notified of a
public hearing,which will be scheduled before the Planning Commission.
Sincerely,
Catherine Tarone
Permit Technician
Planning Division
(408) 777-3297
catherinet@cupertino.org
Enclosure: arborist report and City arborist peer review report