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CC Resolution No. 20-111 approving the Tree Removal Permit RESOLUTION NO. 20-111 A RESOLUTION OF THE CUPERTINO CITY COUNCIL APPROVING A TREE REMOVAL PERMIT TO REMOVE, RELOCATE, AND REPLACE SEVENTY-THREE (73) DEVELOPMENT TREES AT THE OAKS SHOPPING CENTER TO ACCOMMODATE A MIXED-USED DEVELOPMENT CONSISTING OF 267 HOUSING UNITS (88 ROWHOUSE/TOWNHOMES, 179 SENIOR APARTMENTS, OF WHICH INCLUDE 48 SENIOR AFFORDABLE APARTMENTS), 27 MEMORY CARE LICENSED ASSISTED LIVING RESIDENCES ("MEMORY CARE RESIDENCES"), AND 20,000 SQUARE FEET OF COMMERCIAL SPACE LOCATED AT 21267 STEVENS CREEK BOULEVARD (APN: 326-27-042, -043) SECTION I: PROTECT DESCRIPTION Application No.: TR-2018-22 Applicant: KT Urban (Mark Tersini) Property Owner: 190 West St. James, LLC Location: 21267 Stevens Creek Blvd. (APN #326-27-042, -043) SECTION II: FINDINGS FOR TREE REMOVAL: 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 Westport Cupertino Mixed-Use Project ("Project"), including the Tree Removal Permit, is fully described and analyzed in the Initial Study and proposed Final Environmental Impact Report (State Clearinghouse No. 2019070377) ("EIR" or "Final EIR") for the Project; and WHEREAS, the City of Cupertino's Environmental Review Committee at its April 16, 2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft EIR and Response to Comments, received public comments, and voted 5-0 to recommend that the City Council certify the EIR for the project; and WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning Commission recommended on a 5-0 vote that the City Council certify that the EIR has been completed in compliance with the California Environmental Quality Act, Public Resources Code Section 21000 et seq. ("CEQA") and reflects the independent judgment and analysis of the City, adopt Findings, adopt and require as conditions of approval all of the mitigation measures for the Project which are within the responsibility and Resolution No. 20-111 Page 2 jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring and Reporting Program for the Project (EA-2018-04); and WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5-0 vote that the City Council approve the Vesting Tentative Map (TM-2018-03), in substantially similar form to the Resolution presented (Resolution No. 6904), approve the Development Permit (DP-2018-05) in substantially similar form to the Resolution presented (Resolution No. 6901), approve the Architectural and Site Approval Permit (ASA-2018-05) in substantially similar form to the Resolution presented(Resolution No. 6902), approve the Use Permit(U-2019-03) in substantially similar form to the Resolution presented (Resolution No. 6903), approve the Tree Removal Permit (TR-2018-22) in substantially similar form to the Resolution presented (Resolution No. 6906), approve the Heart of the City Exception (EXC-2019-03) in substantially similar form to the Resolution presented (Resolution No. 6905) for the Senior Enhanced Alternative; and WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted and requested the City to consider revisions to the Project ("Revised Senior Enhanced Project") that include relocating nine Below Market Rate units from Building 1 to an additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide additional space for terraces on the tops of those buildings, and changing the unit mix in Buildings 2 to include two-bedroom units in addition to studios and one-bedroom units; and WHEREAS, because the revisions in the Project affect building height and dispersion of BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for recommendation to the City Council; and WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3-2 vote that the City Council deny the project in accordance with Resolution No. 6908; and WHEREAS, on July 31, 2020, the applicant submitted a request for an incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and WHEREAS, all necessary public notices having been given as required by the Procedural Ordinance of the City of Cupertino and the Government Code, and the Planning Commission held at least one public hearing in regard to this application, and on August 18, 2020,the City Council held a public hearing to consider the Tree Removal Permit; and WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Resolution; and WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in the entire administrative record, and prior to consideration of the Vesting tentative Map, the City Council adopted Resolution No. 20-105 certifying the EIR, adopting and Resolution No. 20-111 Page 3 requiring as conditions of approval all of the mitigation measures for the Project which are within the responsibility and jurisdiction of the City that are identified in the EIR, and adopting the Mitigation Monitoring and Reporting Program for the Project; and WHEREAS,the applicant has met the burden of proof required to support the application for a Tree Removal Permit; and WHEREAS, the City Council finds as follows with regard to this application: a) 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). In order to accommodate for the new development's residential and mixed-use buildings, underground garage, walkways and internal street network to public open spaces, the existing trees cannot be preserved in their locations. The applicant proposes replacement trees throughout the site in excess of the conformance with the Municipal Code Ordinance requirements and proposes to locate the replacements where tree coverage is needed, while also proposing to relocate four of the Coast Live Oak Trees. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter and the Environmental Impact Report and the Mitigation Monitoring and Reporting Program for the Project (EA-2018-04), subject to the conditions which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the conditions contained in all other Resolutions approved for this Project, The application for a Tree Removal Permit, Application No. TR-2018-22, is hereby approved, and 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. TR-2018-22 as set forth in the Minutes of the City Council Meeting of August 18, 2020 Meeting, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Resolution No. 20-111 Page 4 Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020, consisting of 39 sheets labeled as Westport Cupertino, G200 - G213, A001-A222, VTM-I-VTM-6, and L100-1,300, drawn by C2K, and Kimley Horn except as may be amended by conditions in this resolution. 2. ACCURACY OF 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. Any misrepresentation of any property data may invalidate this approval and may require additional review,including any misrepresentation related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse units will be for-sale. 3. CONCURRENT APPROVAL CONDITIONS The conditions of approval contained in file nos. ASA-2018-05, EXC-2019-03, TM- 2018-03, DP-2018-05, U-2019-03 and EA-2018-04 shall applicable to this approval. 4. ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans. 5. TREE REPLACEMENT SIZE The applicant shall provide adequate tree replacements for trees proposed to be removed in conformance with the replacement guidelines per Cupertino Municipal Code Section 14.18.160. The size of the proposed replacement trees shall be modified as follows to be consistent with the City's Protected Tree Ordinance unless deemed infeasible by the City's Consulting Arborist: a. Diameter of trunk size of removed tree up to 12 inches shall be replaced with one 24-inch box tree; b. Over 12 inches and up to 36 inches shall be replaced by two 24-inch box tree or one 36-inch box tree; and c. Over 36 inches shall be replaced with one 36-inch box tree. If it is determined that it is physically not feasible to plant the required replacements trees, the Applicant may pay in-lieu fees determined to be appropriate by the Community Development Director. 6. ARBORIST REVIEW Resolution No. 20-111 Page 5 Prior to building permit issuance, the number, location and species of trees shall be reviewed and approved by the City in consultation with the City's Consulting Arborist. The replacement trees shall be planted prior to building permit final. The Applicant shall provide the Department of Community Development adequate documentation, including, but not limited to, photographs, receipts or invoices, to verify that replacements have been planted. The City's consulting arborist shall inspect the trees after planting and a report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. 7. TREE PROTECTION As part of the demolition or building permit drawings, a tree protection plan shall be prepared by a certified arborist for the trees to be retained. In addition, the following measures shall be added to the protection plan: • For trees to be retained, chain link fencing and other root protection shall be installed around the dripline of the tree prior to any project site work. • No parking or vehicle traffic shall be allowed under root zones, unless using buffers approved by the Project Arborist. • No trenching within the critical root zone area is allowed. If trenching is needed in the vicinity of trees to be retained,the City's consulting arborist shall be consulted before any trenching or root cutting beneath the dripline of the tree. • Wood chip mulch shall be evenly spread inside the tree projection fence to a four-inch depth. • Tree protection conditions shall be posted on the tree protection barriers. • Retained trees shall be watered to maintain them in good health. • A covenant on the property shall be recorded that identifies all the protected trees, prior to final occupancy. The tree protection measures shall be inspected and approved by the certified arborist prior to issuance of building permits. The City's consulting arborist shall inspect the trees to be retained and shall provide reviews prior to issuance of demolition, grading or building permits. A report ascertaining the good health of the trees mentioned above shall be provided prior to issuance of final occupancy. 8. PROTECTED TREES The applicant understands that the replacement trees may not be removed without a Tree Removal Permit and that they shall be responsible for ensuring the proper Resolution No. 20-111 Page 6 maintenance and care of the trees. The applicant shall also disclose the location and species of all replacement trees on site upon sale of the property. 9. 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. 10. INDEMNIFICATION 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 Resolution No. 20-111 Page 7 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. 11. 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. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 181h day of August, 2020,by the following vote: Vote Members of the City Council AYES: Scharf, Paul, Chao, Sinks, Willey NOES: None ABSENT: None ABSTAIN: None SIGNED: am- �. 0 8/28/2020 Steven Scharf,Mayor Date City of Cupertino ATTEST: �� 8/28/2020 Kirsten Squarcia,City Clerk Date