AH Resolution No. 135 (TM-2021-001) - SignedCITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
I-t0wil Rout 6021►�relm
A RESOLUTION OF THE ADMINISTRATIVE HEARING OFFICER OF THE CITY OF
CUPERTINO APPROVING A TENTATIVE MAP TO ALLOW THE SUBDIVISION OF
ONE PARCEL INTO TWO INDIVIDUAL PARCELS LOCATED AT
7752 ORION LANE (APN: 36218 008)
SECTION I: PROTECT DESCRIPTION
Application No.: TM-2021-001
Applicant: Aditi Mukherjee
Location: 7752 Orion Lane; APN# 36218 008
SECTION 1I: FINDINGS FOR A TENTATIVE MAP:
WHEREAS, the City of Cupertino received an application for a Tentative Map
(Application No. TM-2021-001) as described in Section I of this resolution to subdivide
one 18,000-square-foot lot into two lots of equal size; and
WHEREAS, the project is determined to be categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15332 of the CEQA Guidelines;
and
WHEREAS, on February 23, 2023, the Administrative Hearing Officer held a duly noticed
public hearing to receive staff's presentation and public testimony, and to consider the
information contained in all staff reports, other pertinent documents, and all written and
oral statements received prior to and at the public hearing; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Tentative Map; and
WHEREAS, the Administrative Hearing Officer finds as follows with regard to this
application:
1. That the proposed subdivision map is consistent with the City of Cupertino General
Plan.
The subject property is consistent with the General Plan since the property is permitted to have
up to two dwelling units based on its land use designation of Low Density (1-5 DUlAc.). The
lot acreage will be consistent with the underlying single family residential standards proposed
with a minimum lot square footage of 6,000 square feet. Adjacent land uses include similar
developments. The proposed subdivision is compatible with the adjoining land uses and no
physical constraints are present that would conflict with anticipated land use development.
2. That the design and improvements of the proposed subdivision are consistent with
the General Plan.
The off -site improvements proposed with the project are similar to the existing improvements
adjacent to the subject site. These are consistent with the City's General Plan policies related
to pedestrian safety etc. by separating sidewalks from the street, minimizing curb -cuts and
requiring an urban canopy within the public right--of-way.
3. That the site is physically suitable for the type development contemplated under the
approved subdivision.
The proposed subdivision is compatible with the adjoining land uses and no physical
constraints are present- that would conflict with anticipated land use development. There are
no topographical anomalies that differentiate this property from adjacent properties. The site
is located on the valley floor and the proposed two lot subdivision is typical of properties in the
neighborhood.
4. That the site is physically suitable for the intensity of development contemplated
under the approved subdivision.
The subject property is physically suitable in size and shape in conformance to development
standards and is appropriately configured to accommodate single-family dwelling units that
can comply with development standards in Chapter 19.28.
5. That the design of the subdivision or the proposed improvements are not likely to
cause substantial envirorunental damage nor substantially and avoidably injure fish
and wildlife or their habitat.
The proposed subdivision design and improvements are not likely to cause serious public health
problems nor substantially injure fish and wildlife or their habitat because the property is a
developed site and located in an urbanized area where residential land use is allowed.
6. That the design of the subdivision or the type of improvements associated therewith
are not likely to cause serious public health problems.
The proposed development is consistent with the existing adjacent residential development,
and the on -site and off -site improvements improve neighborhood walkability through new
detached sidewalk construction with size --appropriate driveway cuts and street and private tree
plantings.
7, That the design of the subdivision and its associated improvements will not conflict
with easements acquired by the public at large for access through or use of property
within the proposed subdivision.
No easement or right-of-way exists currently that would be impeded or conflict with the
proposed subdivision.
NOW, THEREFORE, BE IT RESOLVED that after careful consideration of maps, facts,
exhibits, testimony and other evidence submitted in this matter, subject to the conditions
which are enumerated in this Resolution beginning on PAGE 3 thereof, and those
contained in all other Resolutions approved for this Project, the Administrative Hearing
Officer does hereby:
1. Exercises its independent judgment and determines that the Project is exempt from
CEQA pursuant to CEQA Guidelines section 15332. Section 15332 exemption applies
projects characterized as in -fill development meeting the following criteria:
a. The project is consistent with the applicable general plan designation and all
applicable general plan policies as well as with applicable zoning designation and
regulations.
b. The proposed development occurs within the city limits on a project site of no
more than five acres substantially surrounded by urban uses.
c. The project site has no value as habitat for endangered, rare or threatened species.
d. Approval of the project would not result in any significant effects relating to traffic,
noise, air quality, or water quality.
e. The site can be adequately served by all required utilities and public services.
Therefore, the proposed project is consistent with the criteria stated above (Section
15332) and will not have a significant effect on the environment.
2. Approve the application for a Tentative Map, Application No. TM-2021-001, and
3. Find that the subconclusions upon which the findings and conditions specified in this
Resolution are based are contained in the Public Hearing record concerning
Application no. TM-2021-001 as set forth in the Minutes of the Administrative Hearing
Officer of February 23, 2023 and are incorporated by reference as though fully set forth
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
The approval is based on a plan set entitled "Tentative Parcel Map for 2-lot
Subdivision 7752 Orion Lane," prepared by RW Engineering, Inc., on July 18, 2022
consisting of three (3) sheets titled "Sheet 1 through Sheet 3" and the plan set entitled
"New Two Story Residence w/ Attached ADU for Suejane Han," prepared by Aditi
Mukherjee and Gregory Lewis Landscape Architect and dated October 11, 2022 and
August 22, 2022, respectively, consisting of twenty-four (24) sheets titled "A1.1, Al,
A3.1 to A3.2A, A4.1 to A4.2A, A6.1, A6.2, A7.1, A7.2, A8.1, A8.2, and LO through L6"
except as may be amended by conditions in this resolution. In the event there are
conflicts between the floor plan, cross sections and elevation drawings, the elevation
drawings take precedence.
2. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
building plans.
3. ACCURACY OF PROJECT 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 property data may invalidate this approval and may
require additional review.
4. 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.
5. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. R-2021-014 and R-2021-015 shall be
applicable to this approval.
6. CONSTRUCTION MANAGEMENT PLAN
A construction management plan shall be prepared by the applicant and approved by
staff prior to issuance of building permits.
7. PROTECTED TREES
No removal of protected trees is approved as part of this Tentative Map approval.
Any specimen trees proposed for removal will require approval of a separate Tree
Removal Permit application and replacement under Chapter 14.18 of the Cupertino
Municipal Code.
8. DEVELOPMENT ALLOCATION
The project is granted a development allocation of one unit from the Citywide
allocation.
9. BELOW MARKET RATE HOUSING PROGRAM
The applicant shall participate in the City's Below Market Rate {BMA} Housing
Program by paying the housing mitigation fees as per the Housing Mitigation
Manual. These fees will be assessed at the time of Building Permit issuance for the
net new residential unit and any associated accessory dwelling units.
10. LANDSCAPE PROJECT 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.
11. DEMOLITION REQUIREMENTS
All demolished building and site materials shall be recycled to the maximum extent
feasible subject to the Building Official. The applicant shall provide evidence that
materials were recycled prior to issuance of final demolition permits.
12. DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a. Water all exposed surfaces areas (e.g., parking areas, staging areas, soil piles,
graded areas, and unpaved access roads) at least twice daily and more often
during windy periods to prevent visible dust from leaving the site; active areas
adjacent to windy periods; active areas adjacent to existing land uses shall be kept
damp at all times, or shall be treated with non -toxic stabilizers or dust palliatives.
b. All haul trucks transporting soil, sand, or other loose material off -site shall be
covered.
c. All visible mud or dirt track -out onto adjacent public roads shall be removed using
wet power vacuum street sweepers at least once per day. The use of dry power
sweeping is prohibited.
d. All vehicle speeds on unpaved roads shall be limited to 15 mph.
e. All roadways, driveways, and sidewalks to be paved shall be completed as soon
as possible. Building pads shall be laid as soon as possible after grading unless
seeding or soil binders are used.
f. Idling times shall be minimized either by shutting equipment off when not in use
or reducing the maximum idling time to 5 minutes (as required by the California
airborne toxics control measure Title 13, Section 2485 of California Code of
Regulations [CCRj). Clear signage shall be provided for construction workers at
all access points.
g. All construction equipment shall be maintained and properly tuned in accordance
with manufacturer's specifications. All equipment shall be checked by a certified
mechanic and determined to be running in proper condition prior to operation.
h. Post a publicly visible sign with the telephone number and person to contact at the
Lead Agency regarding dust complaints. This person shall respond and take
corrective action within 48 hours. The Air District's phone number shall also be
visible to ensure compliance with applicable regulations.
The applicant shall incorporate the City's construction best management practices
into the building permit plan set prior to any grading, excavation, foundation or
building permit issuance.
13. NOISE AND VIBRATION NOTICE
At least 10 days prior to the start of any demolition, ground disturbing, or
construction activities, the project applicant/contractor shall send notices of the
planned activity by first class mail to off -site businesses and residents within 500 feet
of the project site. The City will provide a template notice and mailing addresses for
the Applicant's use. The notice must be approved by City staff prior to sending. The
project applicant shall provide the City with evidence of mailing of the notice, upon
request.
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;
c. Telephone numbers of the City's and contractor's authorized representatives that
are assigned to respond in the event of a noise or vibration complaint; and
d. Contact information for City's and contractor's authorized representatives that are
assigned to respond in the event of a complaint related to fugitive dust, pursuant
to the requirements for compliance with BAAQMD's CEQA Air Quality
S '_l14An1;"nQ
If the authorized contractor's representative receives a complaint, they shall
investigate, take appropriate corrective action, and report the complaint and the
action taken to the City within three business days of receiving the complaint.
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
safety warning purposes only. The construction manager will use smart back-up
alarms, which automatically adjust the alarm level based on the background noise
level or switch off back-up alarms and replace with human spotters in compliance
with all safety requirements and law.
16. 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 BAA MD's CEQA Air Quality_
Guidelines, as subsequently revised, supplemented, or replaced, to control fugitive
dust (i.e., particulate matter PM2.5 and PM1.0) during demolition, ground disturbing
activities and/or construction.
17. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS
a. All grading activities shall be limited to the dry season (April 15 to October 1),
unless permitted otherwise by the Director of Public works.
b. Construction hours and noise limits shall be compliant with all requirements of
Chapter 10.48 of the Cupertino Municipal Code.
c. Grading, street construction, underground utility and demolition hours for work
done more than 750 feet away from residential areas shall be limited to Monday
through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m.
Grading, street construction, demolition or underground utility work within 750
feet of residential areas shall not occur on Saturdays, Sundays, holidays, and
during the nighttime period as defined in Section 10.48.053(b) of the Municipal
Code.
d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m.
and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed
on holidays as defined in Chapter 10.48 of the Municipal Code. Night time
construction is allowed if compliant with nighttime standards of Section 10.48 of
the Cupertino Municipal Code.
e. Rules and regulations pertaining to all construction activities and limitations
identified in this permit, along with the name and telephone number of an
applicant appointed disturbance coordinator, shall be posted in a prominent
location at the entrance to the job site.
f. The applicant shall be responsible for educating all contractors and subcontractors
of said construction restrictions.
The applicant shall comply with the above grading and construction hours and noise
limit requirements unless otherwise indicated.
18. ARCHAEOLOGICAL RESOURCES AND TRIBAL CULTURAL RESOURCES
Prior to the issuance of any demolition, grading or building permit involving soil
disturbance, the project applicant shall provide written verification, including the
materials provided to contractors and construction crews, to the City confirming that
contractors and construction crews have been notified of basic archaeological site
indicators, the potential for discovery of archaeological resources, laws pertaining to
these resources, and procedures for protecting these resources as follows:
a. Basic archaeological site indicators that may include, but are not limited to, darker
than surrounding soils of a friable nature; evidence of fires (ash, charcoal, fire
affected rock or earth); concentrations of stone, bone, or shellfish; artifacts of
stone, bone, or shellfish, evidence of living surfaces (e.g., floors); and burials,
either human or animal.
b. The potential for undiscovered archaeological resources or tribal cultural
resources on site.
c. The laws protecting these resources and associated penalties, including, but not
limited to, the Native American Graves Protection and Repatriation Act of 1990,
Public Resources Code Section 5097, and California Health and Safety Code
Section 7050 and Section 7052.
d. The protection procedures to follow should Construction crews discover cultural
resources during project -related earthwork, include the following:
L All soil disturbing work within 25 feet of the find shall cease.
ii. The project applicant shall retain a qualified archaeologist to provide and
implement a plan for survey, subsurface investigation, as needed, to define
the deposit, and assessment of the remainder of the site within the project area
to determine whether the resource is significant and would be affected by the
project.
iii. Any potential archaeological or tribal cultural resources found during
construction activities shall be recorded on appropriate California Department
of Parks and Recreation forms by a qualified archaeologist. If the resource is a
tribal cultural resource, the consulting archaeologist shall consult with the
appropriate tribe, as determined by the Native American Heritage
Commission, to evaluate the significance of the resource and to recommend
appropriate and feasible avoidance, testing, preservation or mitigation
measures, in light of factors such as the significance of the find, proposed
project design, costs, and other considerations. The archeologist shall perform
this evaluation in consultation with the tribe.
19. HUMAN REMAINS AND NATIVE AMERICAN BURIALS
Prior to issuance of the any demolition, grading and building permits that involve soil
disturbance, include on plans a note that, during project construction, the project
applicant shall comply with California Health and Safety Code Section 7050.5 and
California Public Resources Code Section 5097.98.
a. In the event of discovering human remains during construction activities, there
shall be no further excavation or disturbance of the site within a 100-foot radius
of the remains, or any nearby area reasonably suspected to overlie adjacent
remains.
b. The Santa Clara County Coroner shall be notified immediately and shall make a
determination as to whether the remains are Native American.
c. If the Santa Clara County Coroner determines that the remains are not subject to
his authority, he shall notify the Native American Heritage Commission
(NAHC) within 24 hours.
d. The NAHC shall attempt to identify descendants (Most Likely Descendant) of
the deceased Native American.
e. The Most Likely Descendant has 48 hours following access to the project site to
make recommendations or preferences regarding the disposition of the remains,
If the Most Likely Descendant does not make recommendations within 48 hours
after being allowed access to the project site, the owner shall, with appropriate
dignity, reinter the remains in an area of the property secure from further
disturbance and provide documentation about this determination and the
location of the remains to the NAHC and the City of Cupertino. Alternatively, if
the owner does not accept the Most Likely Descendant's recommendations, the
owner or the descendent may request mediation by the NAHC. Construction
shall halt until the mediation has concluded.
20. PALEONTOLOGICAL RESOURCES
Prior to issuance of the any demolition, grading or building permit, include on plans
a note that, during project construction, the project applicant shall implement the
following measures:
a. If paleontological resources are encountered during ground disturbing and/or
other construction activities, all construction shall be temporarily halted or
redirected to allow a qualified paleontologist, which shall be retained by the
project applicant, to assess the find for significance and the Applicant shall notify
the City.
b. If paleontological resources are found to be significant, the paleontological
monitor shall determine appropriate actions, in coordination with a qualified
paleontologist, City staff, and property owner. Appropriate actions may include,
but are not limited to, a mitigation plan formulated pursuant to guidelines
developed by the Society of Vertebrate Paleontology and implemented to
appropriately protect the significance of the resource by preservation,
documentation, and/or removal, prior to recommencing activities. Measures
may include, but are not limited to, salvage of unearthed fossil remains and/or
traces (e.g., tracks, trails, burrows); screen washing to recover small specimens;
preparation of salvaged fossils to a point of being ready for curation (e.g.,
removal of enclosing matrix, stabilization and repair of specimens, and
construction of reinforced support cradles); and identification, cataloging,
curation, and provision for repository storage of prepared fossil specimens.
21. 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. 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.
b. 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.
c. 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.
d. 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.
22. UNDERGROUNG STORAGE TANK REMOVAL
Should the existing underground storage tank be removed, prior to application for a
demolition permit, the applicant shall obtain any required permits, testing, and
certifications from the Department of Environmental Health for the closure and
removal of underground storage tanks. Remediation, as required, shall be performed
prior to submittal of any construction permits for the associated residences.
Compliance with this condition shall be verified by the City of Cupertino Community
Development Department and the Santa Clara County Environmental Health
Department, prior to the issuance of the first grading and/or building permit.
23. HAZARDS AND HAZARDOUS MATERIALS ASBESTOS AND/OR LEAD
ASSESSOR CONSULTATION
Prior to issuance of a demolition permit for on -site structures, the project applicant
shall consult with certified Asbestos and/or Lead Risk Assessors to complete and
submit for review to the Building Department an asbestos and lead survey. If asbestos
containing materials or lead -containing materials are not discovered during the
survey, further mitigation related to asbestos -containing materials or lead containing
materials shall not be required. If asbestos containing materials and/or lead--
containing materials are discovered by the survey, the project applicant shall prepare
a work plan to demonstrate how the on -site asbestos -containing materials and/or
lead -containing materials shall be removed in accordance with current California
Occupational Health and Safety (Cal -OSHA) Administration regulations and
disposed of in accordance with all CalEPA regulations, prior to the demolition and/or
removal of the on -site structures. The plan shall include the requirement that work
shall be conducted by a Cal -OSHA registered asbestos and lead abatement contractor
in accordance with Title S CCR 1529 and Title S CCR 1532.1 regarding asbestos and
lead training, engineering controls, and certifications. The applicant shall submit the
work plan to the City of Cupertino for review and approval. The City has the right to
defer the work plan to the Santa Clara County Department of Environmental Health
for additional review. Materials containing more than one (1) percent asbestos that is
friable are also subject to BAAQMD regulations. Removal of materials containing
more than one (1) percent friable asbestos shall be completed in accordance with
BAAQMD Section 11-2-303.
24. 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.
25. 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.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS
DEPARTMENT
Public Works Project Conditions of Approval. Except for otherwise noted, the
following conditions must be completed and/or submitted prior to Parcel Map
recordation.
26. STREET IMPROVEMENTS & DEDICATION
20' of Roadway dedication in fee title and frontage improvements along the project
will be required to the satisfaction of the Director of Public Works. Street
improvements, grading and drainage plans must be completed and approved prior
to parcel map approval. Street improvements may include, but not be limited to,
installation of curb & gutter, sidewalk, driveways, AC pavement, storm main,
underground joint trench, sewer laterals. All improvements must be completed and
accepted by the City prior to Building Final Occupancy or Street Improvement
Encroachment Permit acceptance whichever comes first.
27. ACCEPTANCE OF PROPERTY RIGHTS
The Public Works Director, or his/her designee, shall have the authority to accept all
offers of dedications, easements, quitclaims and other property rights and interests on
behalf of the City.
28. GRADING
Grading shall be as approved and required by the Director of Public Works in
accordance with Chapter 15.08 of the Cupertino Municipal Code. 401 Certifications
and 404 permits maybe required. Please contact Army Corp of Engineers and/or
Regional Water Quality Control Board as appropriate. Address comments provided
during Planning application stage (comment letter dated 11- 23-21).
• pt ►NNO
Drainage shall be provided to the satisfaction of the Director of Public. Any storm
water overflows or surface sheeting should be directed away from neighboring
private properties and to the public right of way as much as reasonably possible. If
not all site drainage can be directed towards the street, drywells, retention systems or
other approved systems and improvements will be required as necessary to collect
the increase in storm water runoff between the pre- and post -development
impervious area.
30. C.3 REQUIREMENTS
C.3 regulated improvements are required if Project is creating and/or replacing 10,000
S.F. or more of impervious surface (collectively over the entire project site). The
developer shall reserve a minimum of 4% of developable surface area for the
placement of low impact development measures, for storm water treatment, unless
an alternative storm water treatment plan, that satisfies C.3 requirements, is approved
by the Director of Public Works.
31. SUBDIVISION IMPROVEMENT AGREEMENT
The project developer shall enter into a subdivision improvement agreement with the
City of Cupertino providing for payment of fees, including but not limited to checking
and inspection fees, storm drain fees, park dedication fees and fees for under
grounding of utilities. Said agreement and fees shall be executed and paid prior to
parcel map approval.
Fees:
a. Checking & Inspection Fees: Per current fee schedule ($4,898)
b. Grading Permit: Per current fee schedule ($3,647)
c. Parcel Map Fee: Per current fee schedule ($7,421)
d. Storm Drainage Fee: Per current fee schedule ($1,858)
e. Transportation Impact Fee: Per current fee schedule: ($6,797 for new unit)
f. Park Fees: Per current fee schedule: ($60,000 for new unit)
g. Street Tree Fee: Per current fee schedule: ($438 per tree)
Bonds:
a. Faithful Performance Bond: 100% of Off -site and On -site Improvements
b. Labor & Material Bond: 100% of Off -site and On -site Improvement
c. On -site Grading Bond: 100% of site improvements.
The fees described above are imposed based upon the current fee schedule adopted
by the City Council. However, the fees imposed herein may be modified at the time
of recordation of a final map or issuance of a building permit in the event of said
change or changes, the fees changed at that time will reflect the then current fee
schedule.
32. PARCEL MAP
Prior to approval of the Building permit, a parcel reap shall be recorded. And,
existing house must be demolished prior to recordation of the parcel map as
building(s) cannot straddle between parcel lines.
33. TRANSPORTATION IMPACT FEES
The Project is subject to the payment of Transportation Impact Fees under City's
Transportation Impact Fee Program (Chapter 14.42 of the Cupertino Municipal
Code).
34. PARKS
The residential units are subject to the payment of parkland fees in -lieu of parkland
dedication per Chapter 13.08 and Chapter 18.24 of the Cupertino Municipal Code.
35. SURVEYS
A Boundary Survey and a horizontal control plan will be required for all new
construction to ensure the proposed building will be set based on the boundary
survey and setback requirements.
36. UNDERGROUND UTILITIES
Developer shall comply with the requirements of the Underground Utilities
Ordinance No. 331 and other related Ordinances and regulations of the City of
Cupertino, and shall coordinate with affected utility providers for installation of
underground utility devices. Developer shall submit detailed plans showing utility
underground provisions. Said plans shall be subject to prior approval of the affected
Utility provider and the Director of Public Works.
37. TRANSFORMERS & CABINETS
Electrical transformers, telephone cabinets and similar equipment shall be placed in
underground vaults. The developer must receive written approval from both the
Public Works Department and the Community Development Department prior to
installation of any above ground equipment. Should above ground equipment be
permitted by the City, equipment and enclosures shall be screened with fencing and
landscaping such that said equipment is not visible from public street areas, as
determined by the Community Development Department. Transformers shall not be
located in the front or side building setback area.
38. BEST MANAGEMENT PRACTICES
Utilize Best Management Practices (BMPs), as required by the State Water Resources
Control Board, for construction activity, which disturbs soil. BMP plans shall be
included in grading and street improvement plans.
39. EROSION CONTROL PLAN
Developer must provide an approved erosion control plan by a Registered Civil
Engineer. This plan should include all erosion control measures used to retain
materials on site. Erosion control notes shall be stated on the plans.
40. WORK SCHEDULE
Every b months, the developer shall submit a work schedule to the City to show
the timetable for all grading/erosion control work in conjunction with this project.
41. TRAFFIC CONTROL PLAN
The developer must submit a traffic control plan by a Registered Traffic Engineer to
be approved by the City. The plan shall include a temporary traffic control plan for
work in the right of way as well as a routing plan for all vehicles used during
construction. All traffic control signs must be reviewed and approved by the City
prior to commencement of work. The City has adopted Manual on Uniform Traffic
Control Devices (MUTCD) standards for all signage and striping work throughout
the City.
42. FIRE PROTECTION
Fire sprinklers shall be installed in any new construction to the approval of the City.
43. SANTA CLARA COUNTY FIRE DEPARTMENT
A letter of clearance for the project shall be obtained from the Santa Clara County
Fire Department prior to issuance of building permits. Clearance should include
written approval of the location of any proposed Fire Backflow Preventers, Fire
Department Connections and Fire Hydrants (typically Backflow Preventers should be
located on private property adjacent to the public right of way, and fire department
connections must be located within 100' of a Fire Hydrant).
44. FIRE HYDRANT
Fire hydrants shall be located as required by the City and Santa Clara County
Fire Department as needed.
45. SAN JOSE WATER SERVICE COMPANY CLEARANCE
Provide San Jose Water Company approval for water connection, service capability
and location and layout of water lines and backflow preventers prior to parcel map
approval.
46. DEDICATION OF UNDERGROUND WATER RIGHTS
Developer shall "quit claim" to the City all rights to pump, take or otherwise
extract water from the underground basin or any underground strata in the Santa
Clara Valley.
47. SANITARY DISTRICT
A letter of clearance or sign off of street improvement plans for the project shall
be obtained from the Cupertino Sanitary District prior parcel map approval.
48. UTILITY EASEMENTS
Clearance approvals from the agencies with easements on the property (including
PG&E, AT&T, and San Jose Water Company, and/or equivalent agencies) will be
required prior final map approval.
SECTION V: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY FIRE
DEPARTMENT
49. BUILDING AND FIRE CODE
The applicant shall apply for and obtain building permits to allow the construction of
the approved project. The applicant shall provide information and plans to allow the
Building Official and the Fire Marshall or their designee that the proposed plans
comply with Building and Fire Codes in effect at the time of application for a building
permit.
SECTION VI: CONDITIONS ADMINISTERED BY THE ENVIRONMENTAL SERVICES
DIVISION
50. ENVIRONMENTAL DIVISION STANDARDS
Prior to issuance of the first demolition, grading and building permit, the applicant
shall include the complete the City of Cupertino Climate Action Plan — Development
Project Consistency Checklist, as subsequently revised, supplemented, or replaced,
for review and approval by the City Environment and Sustainability Department to
demonstrate how the project is consistent with the Cupertino Climate Action Plan..
SECTION VII: CONDITIONS ADMINISTERED BY CUPERTINO SANITARY
51. CONNECTION PERMIT FEES
Sewer Development Fees & Treatment Plant Capacity Fees will be required for the
proposed work during the Building Permit Phase. The District is currently in the
process of drafting up a District Wide Inflow and Infiltration Reduction program.
Additional fees for this projects Inflow & Infiltration reduction may be required
during the Building Phase.
52. LATERAL & SEWER LINE CLEANOUT
At time of Building Permits, the Property Owner shall disconnect and temporarily cap
their connection to the District -owned sanitary sewer lateral at the property line, per
the District's standards. The Property Owner shall provide video inspection of the
existing District -owned sanitary sewer lateral. If the conditions of the existing lateral
is not adequate, the owner shall be required to abandon and install a new sanitary
sewer lateral, per District's standards. New lateral connection, inspection,
administration, & engineering fees will be required for the new lateral during the
Building Permit Phase.
Prior to application for Building Permits, the applicant shall add a new cleanout
symbol on the proposed and existing sewer laterals on Sheet 3 of the civil sheets.
53. REGISTERED CONTRACTOR
The contractor performing the work disconnecting and connecting to the District's
sewer mains shall be registered with the District.
CITY ENGINEER'S CERTIFICATE OF
ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS
(Section 66474.18 California Government Code)
I hereby certify that the engineering and surveying conditions specified in Section IV. of
this Resolution conform to generally accepted engineering practices.
Chad Mosley, Assistant Director of Public Works
City Engineer CA License 66077
PASSED AND ADOPTED this 23rd day of February, 2023 at a noticed Public Hearing of
the Administrative Hearing Officer of the City of Cupertino, State of California, held by
the Director of Community Development, or his or her designee, pursuant to Cupertino
Municipal Code Section 19.12.120.
ATTEST:
Emi Sugi
Associate Planner
Luke Connolly
Administrative Hearing Officer