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1991 - Noise Control Monitoring and Mitigation - Sobrato Interests IIWilson, Sonsini, Goodrich & Rosati Two Palo Alto Square, Suite 900 Palo Alto, California 94306 ATTENTION: Real Estate Dept./HBW (Space Above for Recorder's Use) NOISE CONTROL MONITORING AND MITIGATION AGREEMENT This Noise Control Monitoring and Mitigation Agreement ("Agreement"), is made and entered into effective as of May 15, 1991, by and between Sobrato Interests II, a California limited partnership ("Owner"), and the City of Cupertino ("City"). RECITALS A. Owner is the owner of approximately 32.5 net acres of land located on the east side of North De Anza Boulevard, between I-280 and Mariani Avenue, more particularly described on the attached Exhibit "A" ("Land") B. Owner intends: to demolish four buildings, containing approximately 570,000 square feet of office and industrial space (the "Existing Buildings1°); to subdivide the Land into six building lots ranging in size from .06 acres to 1.2 acres, with one additional lot to be administered by the Cupertino Computer Science Center Association, a California non-profit mutual benefit corporation for the common use of Owners of lots in the Project; and to construct thereon approximately 856,000 gross square feet (and 785,000 net square feet) of office buildings and related improvements ("Project"). C. By Application 11-U-90, Owner has applied for a Use Permit for demolition of the Existing Buildings and construction of the Project. D. At their regular meeting of November 19, 1990, the City Council granted a Negative Declaration, and approved Owner's Application 11-U-90 with certain conditions. E. Condition 24(c) of such approval requires Owner and the City to enter into this Agreement for implementation of the Noise Control Monitoring and Mitigation Program described on pages E-5 to E -8 of the Project Initial Study dated September 20, 1990 ("Initial Study"). NOW THEREFORE, the parties hereto agree as follows. 1. Demolition and Construction Activities. A. Impact. The Initial Study identified as a significant impact of the construction of the Project, demolition noise levels projected to be up to 10 dB in excess of peak noise level standards of the City's "Community Noise Control" Ordinance No. 1022, City Municipal Code ("City Noise Ordinance"). B. Mitigation Measures. The following shall be required to mitigate the impact described in the preceding paragraph. 1. Hour -and Dav Operational Restrictions. Demolition and earthmoving operations shall be limited to daytime hours (7 a.m. to 8 p.m.) and to weekdays. 2. Demolition and Construction Plan. Demolition and construction activities (other than the construction of the subterranean garage) shall proceed generally in a clockwise direction over the Land, starting at the west side of the Land (buildings closest to De Anza Boulevard) and moving eastward, to allow the Existing Buildings to serve as a noise buffer to the residences on Larry Way. 3. Maintenance of Demolition and Construction Equipment. Demolition and construction equipment, including mufflers, shall be maintained in good working condition. (a) Owner, or its agent or contractor, shall inform demolition and earthmoving operators of this requirement, and the hour and day operational restrictions set forth in subparagraph 1.B.1 above. (b) If the City receives reasonable complaints regarding noise generated by demolition and construction work, noise monitoring -2- shall be performed by qualified City staff, or by an acoustical engineer. (c) If, as a result of the noise monitoring, described in the immediately preceding paragraph, noise levels for any demolition or construction equipment are found to be above typical noise levels for such equipment, as listed in the attached Exhibit "B", Owner shall cause such equipment to be checked and serviced as needed. 4. Notices to Residences. Owner shall notify residents along both sides of Larry Way, north of Mariani Avenue, of Project demolition and construction operations, and of the potential for occasional noise generation as follows: (a) The City shall provide owner with the addresses of all residences along both sides of Larry Way, north of Mariani Avenue, and shall furnish to Owner the name and phone number of a City contact person to be identified in such notices. (b) Owner shall send to such residences, at least one week prior to initiation of Project demolition and construction.work, written notification of the demolition and construction schedule (including permis- sible hours). This notice shall also include the name and phone number of the contact person designated by the City to be called in the event of an ongoing nuisance. (c) No further notice is required, unless there are schedule changes that would affect hours of noise generation. If there are such schedule changes, Owner shall send written notice thereof to such residences. C. fundina. Owner shall pay directly for notification of residents as set forth in subparagraph 1.B.4 above. City staff coordination shall be funded by mitigation monitoring fees. -3- D. Standards for Success. Successful implementation of the mitigation measures described in this paragraph 1 shall be deemed achieved, if exterior noise levels during Project demolition and construction periods at any residence on Larry Way comply with the standards set forth in Sections 10.48.050 and 10.48.053 of the City Noise ordinance, attached hereto as Exhibit "C". 2. Air Conditioning Cooling Towers. A. Impact. The Initial Study identified as a significant impact of the operation of the Project, projected noise levels from the Project air conditioning cooling towers of 11-12 dB in excess of the City Noise Ordinance limit at the residential property line. B. Mitigation Measures. The cooling tower shall be located a minimum of 810 feet from the residential property line, and shall be constructed with acoustical noise barriers around three sides. The fourth, or open side shall face De Anza Boulevard. If the City noise monitoring conducted pursuant to subparagraph 2.0 establishes that qualitative noise levels from the operation of the Project cooling tower, which have been identified and quantified separately from ambient or background noise levels, exceed 49 dBA at the adjacent residential area behind the existing 8 -foot high property line acoustical barrier adjacent to such area, then Owner shall increase the height of the noise barrier, or make such other modifications as are necessary to reduce such noise levels to 49 dBA at the adjacent residential area. C. Mitigation Monitoring Program. City staff shall monitor cooling tower noise levels after construction and prior to the issuance of occupancy permits. If the City receives reasonable complaints regarding cooling'tower noise, noise monitoring. shall be performed by qualified City staff, or by an acoustical engineer. Noise monitoring shall be performed at the adjacent residential area on Larry Way behind the existing 8 -foot high property line acoustical barrier adjacent to such area. -4- D. Funding. Owner shall pay directly for acoustical treatments required for the cooling tower. City staff coordination and oversight shall be funded by mitigation monitoring fees. E. Standards for Success. Successful implementation of the mitigation measures described in this paragraph 2 shall be deemed achieved if noise monitoring pursuant to subparagraph 2.0 establishes that the qualitative noise levels from the operation of the cooling tower which have been identified and quantified separately from ambient or background noise levels do not exceed 49 dBA at the adjacent residential area behind the existing 8 -foot high property line acoustical barrier adjacent to such area, and operational noise exposure levels are within the limits of the standards of the City Noise Ordinance and the Public Health and Safety Element of the City General Plan. 3. Notices. All notices or other communications hereunder to any of the parties shall be in writing and addressed as follows: If to Owner: Sobrato Development Companies 10600 N. De Anza Boulevard, Suite 200 Cupertino, CA 95014 Attention: John Sobrato If to City: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 Attention: Director of Community Development 4. Termination. This Agreement shall terminate upon completion of the demolition and construction activities authorized by the Use Permit granted pursuant to Appli- cation 11-U-90, and the issuance of Certificates of Occupancy for Project buildings. Such termination is not intended to, nor shall it affect the obligations of the Cupertino Computer Science Center Association, a California non-profit mutual benefit corporation, the members of which are owners of lots in the Project, pursuant to the Cupertino Computer Science Center Declaration of Covenants, Conditions and Restrictions which Owner shall record upon formation of such association (the "Project CC&Rs"), to reduce Project cooling tower noise levels to 49 dBA at the adjacent residences on Larry Way as set forth in paragraph 7.10A of the Project CC&Rs. -5- V, 5. _Entire Agreement. This Agreement constitutes the entire agreement between Owner and the City with respect to the subject matter hereof, and supersedes the terms of any prior or oral agreements with respect to the subject matter hereof. Neither this Agreement, nor any term, covenant, or condition hereof may be modified or amended, except by an agreement in writing executed by both owner and the City. 6. Recordation. The City and owner shall cause this Agreement to be recorded in the Official Records of Santa Clara County, California. Upon termination of this Agreement pursuant to paragraph 4 above, the parties shall execute, acknowledge and cause to be recorded all documents required to remove the effect of this Agreement from said records. 7. Miscellaneous. The headings of the paragraphs in this Agreement are for convenience of reference only, and shall not be considered in the construction or inter- pretation of any provision hereof. This Agreement shall be governed by and construed in accordance with the laws of the State of California. If any suit or proceeding is commenced by any party to enforce or interpret any of the terms of this Agreement, the prevailing party shall have the right to recover its reasonable attorneys' fees and costs of suit from the other party. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Should any provision of this Agreement prove to be invalid or illegal, such invalidity or illegality shall in no way affect, impair or invalidate any other provision hereof, and such remaining provisions shall remain in full force and effect. IN WITNESS WHEREOF, this Agreement was signed as of the dates set forth below. W•""�M- JotfjT'A-. S_0br-a*o, Tru ,�-- �ef 0 obrato 1979 Trust, as amerdedA General Partner I Date:'S HBW05J.R7 -6- "CITY" THE CI OF CUPERTINO By: Date: ALL-PURPOSE CERTIFICATE State of California County of Santa Clara On May 15, 1991 before me, Leslie Furney-Howe, personally appeared John A. Sobrato, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( -e'} whose name( -s) ise subscribed to the within instrument and acknowledged to me that he/-sh hey executed the same in his/4i-e it authorized capacity(ies), and that by his/4tetft -r signature{-) on the instrument the person( -e), or the entity upon behalf of which the person(&) acted, executed the instrument. WITNESS my hand and official seal. kz-ql" . V\6 W'_ Signature 19 F:\LFN SOBRATO.NTY 05/15/91 dt.� is OFFICIAL SEAL LESLIE FIIRNEEY-RfQW6 NOTARY PUBLIC - CALWORNiA SANTA 'CLARA'I GUNTY My comm. expires DOT 32, 1992 C ALL-PURPOSE CERTIFICATE State of California County.of Santa Clara On before me, ; 'personally appeared. personally kn wn to me (er--prre—t-•--m-e- =h ' C C * '-s-f-a-l�-y--ev de_nc) to be the person (e+ whose name(•s-j is/ate subscribed to the within instrument and acknowledged to me that he/ire/tom executed the same. in his/her-/thea.r authorized capacity (4 -est , and that by his/hev/tote-ir signature (-s-) on the instrument the person(X), or the entity upon behalf of which the person() acted, executed the instrument. WITNE S my hand and official/seal. Signature 1021:home ALLME ATY 04/09/91 Dorothy Ajario co'. 4 NOT,.'t Y r -UD' lius Sail4i._ ;�; CA,! I. C ; P•ll,q , hly Commission 1 Ctr,'�`� C.'Clirr'dTY �apires SQpt. 1i3 1992 9 EXHIBIT "A" LEGAL DESCRIPTION "Schedule" SP47790-B All that certain real property situate in the City of Cupertino, County of Santa Clara, State of California, described as follows: PARCEL ONE: All of Parcel C. as said Parcel is shown on the Parcel Map recorded December 2, 1976 in Book 384 of Maps, at Pages 27 and 28, Santa Clara County. PARCEL TWO• A non-exclusive easement for ingress and egress appurtenant to and for the benefit of Parcel C, as shown on that certain Parcel Map recorded December 2, 1976, in Book 384, Pages 27 and 28 over that portion of Parcel One described as follows: BEGINNING at the Northwesterly corner of said Parcel One, described above, in the Easterly line of North De Anza Boulevard; thence along the Northerly line of said Parcel One, South 890 59' 31" East 55.40 feet to a point; thence Southwesterly along the arc of a curve concave Southeasterly having a radius of 60.00 feet; through a central angle of 660 19' 59" an arc distance of 69.46 feet to a point in said Easterly line of North De Anza Boulevard, thence along said Easterly line North 00 42' 03" West 36.08 feet to the point of beginning. PARCEL THREE• Parcel D as said parcel is shown on the Parcel Map recorded December 2, 1976 in Book 384 of Maps, at Pages 27 and 28, Santa Clara County Records. ARB: 316-2-X22, X33, X86, 91, 92 X 95 and X 96 Equipment Type Noise Level In 5p ft dBA Bulldozer Excavator 87 Concrete Mixer 87 Haul Truck (Full) 85 Haul Truck (Empty) 88 Truck Loader 83 Back -Hoe 89 Wheel Loader 76 86 __A'4H IS IT i" 10.48.050 Brief davtime incidents. (1) daytime period only, brief exceeding During the noise incidents in other sections of this chapter are allowed; providing, limits that the sum of the noise duration in minutes plus the excess noise level does not exceed twenty in a two-hour period. For example, the following combinations would be allowable: Noise Increment Above Normal Standard Noise Duration in 2 -Hour Period 5 d8A 15 minutes 10 10 15 " 5 19 " 1 n (2) For multifamily dwelling interior noise, Section 10.48.054, the sum of excess noise level and duration in minutes of a brief daytime incident shall not exceed ten in any two-hour period, measured at the receiving location. (3) Section 10.48.050(1) does not apply to Section 10.48.055 (Motor vehicle Idling). (Ord. 1022 51(part), 1980). 10.48.053 Gradi,na, construction and-demolicion. (1) Grading, construction and demoi.L n activities shall be allowed to exceed the noise limits of Section 10.48.041T during daytime hours; provided, that the equipment utilized has high-quality noise muffler and abatement devices in- stalled and in good condition, and the activity meets one of the following two criteria: (a) No individual device produces a noise level more than 87 dBA at a distance of twenty-five feet 1,7.5 meters); or (b) The noise level on any nearby property does not exceed 80 dBA. (2) It is a violation of this chapter to engage in any grading, street construction, or underground utility work within seven hundred fifty feet of a residential area on Saturdays, Sundays and holidays, and during the nighttime period, except as provided in Section 10.48.030. (3) Grading, construction, or demolition occurring during nighttime periods shall not be allowed unless they meet the nighttime standards of Section 10.48.040. (4) The use of helicopters as a part of a construc- tion and/or demolition activity shall be restricted to between the hours of eight thirty a.m. and six thirty p.m. Monday through Saturday only. Prior to using a helicopter, written or verbal notice shall be given to the Department of Planning and Development. The notice shall be given at least twenty-four hours in ad- vance of said usage. In cases of emergency, the twenty-four hour period may be waived. (Ord. 1278 (part), 1985: i022 §1(part), 1980). Ord.