TR-2024-014- Action Letter (dead)
SENT VIA ELECTRONIC MAIL
March 29, 2024
Brian Kempf
1512 W. Mineral King Ave.
Visalia, CA 93291
brian@iwoodarchitecture.com
Subject: Tree Removal Permit Action Letter for TR-2024-014
This letter confirms the decision of the Director of Community Development, given on March 29, 2024, approving a Tree Removal Permit to allow for the removal and replacement of three
(3) dead development trees at 10385 Bandley Drive.
Staff has made the finding that the development tree is dead (based on the definition provided in Section 14.18.020 of the City’s Protected Tree Ordinance), and that the tree is irreversibly
diseased, is in danger of falling, can cause potential damage to existing or proposed essential structures, or interfere with private on-site utility services and cannot be controlled
or remedied through reasonable relocation. This finding is necessary to grant the tree removal permit in accordance with Cupertino Municipal Code (CMC) Section 14.18.180 (A)(1).
The application is approved with the following conditions:
APPROVED PROJECT
Approval of the tree removals is based on the application packet prepared by the applicant, Brian Kempf., consisting of one (1) document including an arborist’s report, a replacement
plan, and photos of the dead tree.
TREE REPLACEMENT/IN-LIEU FEE
There is a replacement requirement to plant one 24” box Petula pendula (European White Birchtree) in the same general area to mitigate the loss of the dead European White Birch back
into same planting strip on the subject property within 30 days of tree removal. If the property owner elects to not plant the required replacement tree(s) on site, then an in-lieu
fee for the replacements tree(s) must be paid to the City within 30 days of tree removal.
In the event the applicant is unable to plant the approved replacement trees, the applicant may propose alternative adequate tree replacements for trees proposed to be removed. The final
number, location, size, and type of trees shall be reviewed and approved by the Director of Community Development, in consultation with the City’s Consulting Arborist, prior to tree
planting.
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
tree(s) have been planted or the in-lieu fee has been paid within 30 days of tree removal.
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.
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.
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. If an appeal is filed, you will be notified of a public hearing, which
will be scheduled before the Planning Commission.
Sincerely,
/s/
Gian Paolo Martire
Senior Planner
(408) 777-3319
gianm@cupertino.org