RESOLUTION NO. 2024-07
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF CUPERTINO RECOMMENDING THAT
THE CITY COUNCIL ADOPT AN INITIAL STUDY/MITIGATED
NEGATIVE DECLARATION, MITIGATION MEASURES,
AND A MITIGATION MONITORING AND REPORTING
PROGRAM FOR THE LA WREN CE-MITTY PARK AND
TRAIL PROJECT
The Planning Commission recommends that the City Council adopt the Mitigated Negative Declaration, mitigation measures, and Mitigation Monitoring and Reporting Program, in substantially similar form to the Draft Resolution attached hereto as Exhibit EA.
PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Cupertino this 28th day of May 2024, by the following vote:
Members of the Planning Commission
A YES: Fung, Lindskog, Madhdhipatla, Mistry, Sharf
NOES:
ABSENT:
ABSTAIN:
ATTEST:
A~ Piu Ghosh, Planning Manager
APll/!lf~
David Fung, Chair
Attachment F
EXHIBIT EA
RESOLUTION NO. __
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
ADOPTING A MITIGATED NEGATIVE DECLRA TION, MITIGATION
MEASURES, AND A MITIGATION MONITORING AND REPORTING
PROGRAM FOR THE LAWRENCE-MITTY PARK AND TRAIL PROJECT
WHEREAS, the California Environmental Quality Act (CEQA) requires that all discretionary projects proposed to be carried out or approved by public agencies be subject to a comprehensive environmental review process; and WHEREAS, on February 12, 2024 the City issued a Notice of Intent to Adopt a Mitigated Negative Declaration; and
WHEREAS, on February 12, 2024 the Draft Initial Study/Mitigated Negative Declaration (IS/MND) for the project was distributed to responsible agencies and the public for review and comment for a 30-day period that ended March 13, 2024; and
WHEREAS, the City of Cupertino has reviewed and considered all comments received from the public, governmental agencies, and other interested parties regarding the IS/MND for the Lawrence-Mitty Park and Trail project; and WHEREAS, the Final IS/MND for the Lawrence-Mitty Park and Trail project is comprised of the Draft IS/MND and the Final Memo and Response to Comments dated May 21, 2024; and
WHEREAS, text revisions made after publication of the Draft IS/MND, which are found in the Final Memo and Response to Comments, merely clarify, amplify, or make insignificant modifications to the IS/MND, and recirculation of the IS/MND is not required; and
WHEREAS, environmental analysis conducted by MIG, Inc. pursuant to the requirements of California Environmental Quality Act ("CEQA") (14 Cal Code . Regs, § 15164), in the services of an Initial Study report, found that there is no substantial evidence that the project may have a significant effect on the environment, and the effects can be mitigated to a point where no significant effects would occur.
WHEREAS, the City of Cupertino finds that the IS/MND adequately identifies and analyzes the potential environmental impacts of the project and demonstrates that, with implementation of identified mitigation measures, those impacts will be reduced to a level of insignificance; and WHEREAS, the City of Cupertino finds that the IS/MND reflects the City's commitment to environmental stewardship and sustainability while allowing for the responsible development and growth of the community; WHEREAS, on May 28, 2024, the City of Cupertino's Planning Commission held a duly noticed public hearing to receive public testimony reviewed and considered the information contained in the IS/MND, and voted to recommend that the City Council adopt the IS/MND, adopt and incorporate into the Project and implement as conditions of approval all of the mitigation measures for the project that are identified in the IS/MND, and adopt the Mitigation Monitoring and Reporting Program for the Project; and WHEREAS, the City Council has independently reviewed and considered the IS/MND together with the comments and the responses to those comments prior to taking action on the Project; and
NOW, THEREFORE, BE IT RESOLVED after careful consideration of the IS/MND, comments on the IS/MND, facts, exhibits, testimony, staff reports, public comments, and other evidence submitted in this matter, that the Cupertino City Council does hereby:
1. Find that the IS/MND for the Project has been completed in compliance with CEQA and reflects the independent judgment and analysis of the City.
2. Find that, on the basis of the whole record before it, there is no substantial evidence that the Project as proposed and mitigated will have a significant effect on the environment.
3. Find that the text revisions to the IS/MND merely clarify, amplify, or make insignificant modifications to the IS/MND; therefore, recirculation of the IS/MND is not required.
4. Adopt the Mitigated Negative Declaration for the Project.
5. Adopt and incorporate into the Project all of the mitigation measures identified in the IS/MND . The City Council further makes the mitigation measures , which are listed below, required conditions of approval of the Project to the extent they are within the responsibility and jurisdiction of the City:
■ Mitigation Measure BIO-la. Conduct Preconstruction Survey. No more than 24 hours prior to the date of initial ground disturbance, a pre construction survey for southwestern pond turtle will be conducted within the impact area by a qualified biologist. The survey will consist of walking the limits of impact to ascertain the possible presence of the species. The qualified biologist will investigate all potential areas that could be used by southwestern pond turtle for feeding, sheltering, movement, and other essential behaviors.
A qualified biologist is an individual who shall have a degree in biological sciences or related resource management with a minimum of two seasonal years post-degree experience conducting surveys for each amphibian and reptile special-status species that may be present within the project areas.
During or following academic training, the qualified biologist shall have achieved a high level of professional experience and knowledge in biological sciences and special-status species identification, ecology, and habitat requirements. Additionally, the qualified biologist must be permitted or authorized to handle and relocate southwestern pond turtle. ■ Mitigation Measure BIO-lb. Worker Environmental Awareness Program.
All construction personnel will participate in a worker environmental awareness program. These personnel will be informed about the possible presence of all special-status species and habitats associated with the species identified here to be potentially present in the parcel and that unlawful take of the animal or destruction of its habitat is a violation of law.
Prior to construction activities, a qualified biologist will instruct all construction personnel about (1) the description and status of the species; (2) the importance of their associated habitats; (3) a list of measures being taken to reduce impacts on these species during project construction and implementation; and ( 4) measures to be followed if special-status species are encountered during construction activities. A fact sheet conveying this information will be prepared for distribution to the construction crew and anyone else who enters the project site.
■ Mitigation Measure BIO-le. Install Wildlife Exclusion Barrier. Prior to any ground disturbance in the work area, a temporary wildlife exclusion barrier will be installed along the limits of disturbance . A qualified biologist will inspect the area prior to installation of the barrier. The barrier will be designed to allow the southwestern pond turtles to leave the work area and prevent them from entering the work area. The fence will remain in place until all development activities have been completed . This barrier will be inspected daily and maintained and repaired as necessary to ensure that it is functional and is not a hazard to southwestern pond turtles on the outer side of the barrier.
■ Mitigation Measure B10-ld. Construction Monitoring. A qualified biologist or biological monitor will be onsite during all project activities that may result in the take of any special-status species. The qualified biologist will be given the authority to freely communicate verbally, by telephone, by electronic mail, or in writing at any time with construction personnel, any other person(s) at the project site or otherwise associated with the project, and regulatory agencies (e.g., USFWS or CDFW). The qualified biologist or biological monitor will have oversight over implementation of all the mitigation measures and will have the authority and responsibility to stop project activities if they determine any of the measures are not being fulfilled.
A biological monitor is an individual who shall have academic and professional experience in biological sciences and related resource management activities as it pertains to this project, experience with construction-level biological monitoring, be able to recognize species that may be present within the project area and be familiar with the habits and behavior of those species.
■ Mitigation Measure BI0-2a. Pre-Construction Survey for San Francisco Dusky-Footed Woodrats. Within 30 days prior to the start of construction activities, a qualified biologist shall map all San Francisco dusky-footed woodrat houses within a SO-foot buffer around the project footprint.
Environmentally sensitive habitat fencing shall be placed to protect the houses with a minimum SO-foot buffer. If a SO-foot buffer is not feasible, a smaller buffer may be allowable based on advice from a qualified biologist with knowledge of woodrat ecology and behavior, or Mitigation Measure BIO-2b may be implemented.
■ Mitigation Measure BI0-2b. Relocation of Woodrat Houses. In the unlikely event that one or more woodrat houses are determined to be present and physical disturbance or destruction of the houses cannot be avoided, then the woodrats shall be evicted from their houses and the nest material relocated outside of the disturbance area, prior to onset of activities that would disturb the house, to avoid injury or mortality of the woodrats.
The reproductive season for San Francisco dusky-footed woodrats typically starts in February or March and breeding activity usually continues to July but can extend into September. Thus, relocation efforts should be completed in the fall to minimize the potential for impacts on young woodrats in the house. Additionally, it is recommended that the period between the completion of the relocation efforts and the start of construction activities be minimized to reduce the potential for woodrats to reconstruct houses in the project footprint prior to the start of construction activities.
Relocation generally involves first choosing an alternate location for the house material based on the following criteria: 1) proximity to current nest location; 2) safe buffer distance from planned work; 3) availability of food resources; and 4) availability of cover. An alternate house structure will then be built at the chosen location. Subsequently, during the evening hours (i.e., within 1 hour prior to sunset), a qualified biologist will slowly dismantle the existing woodrat house to allow any woodrats to flee and seek cover. All sticks from the nest will be collected and spread over the alternate structure. However, alternative relocation measures can be employed as advised by a qualified wildlife biologist in consultation with CDFW.
■ Mitigation Measure BI0-3a. Pre-Construction Survey for Roosting Bats.
A survey of culverts within the project site, including a 50-foot buffer (as feasible) shall be conducted by a qualified bat biologist no less than 30 days before the start of construction-related activities (including but not limited to mobilization and staging, clearing, grubbing, tree removal, vegetation removal, fence installation, demolition, and grading). If construction activities are delayed by more than 30 days, an additional bat survey shall be performed. The survey may be conducted at any time of year but should be conducted in such a way to allow sufficient time to determine if special status bats or maternity colonies are present on the site. The results of the survey shall be documented.
If no habitat or signs of bats are detected during the habitat suitability survey, no further surveys are warranted. If suitable habitat is present and signs of bat occupancy ( e.g., guano pellets or urine staining) are detected, Mitigation Measure BIO-3b shall apply.
■ Mitigation Measure BI0-3b. Acoustic Survey. If suitable habitat is present and signs of bat occupancy are detected, a follow-up dusk emergence survey shall be conducted no less than 30 days prior to construction activities. A dusk survey will determine the number of bats present and will also include the use of acoustic equipment to determine the species of bats present. The results of the survey shall be documented. If an active roost is observed within the project site, Mitigation Measure BIO-3c shall apply. ■ Mitigation Measure BI0-3c. Roost Buffer. If a day roost or a maternity colony is detected and is found sufficiently close to work areas to be disturbed by construction activities, the qualified biologist shall determine the extent of a construction-free buffer zone to be established around the roost in consultation with CDFW. Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading shall be permitted.
Monitoring shall be required to ensure compliance with relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.
■ Mitigation Measure BI0-4. Pre-Construction/Pre-Disturbance Survey for Nesting Birds.
Avoidance. To the extent feasible, construction activities should be scheduled to avoid the nesting season. If construction activities are scheduled to take place outside the nesting season, all impacts to nesting birds protected under the MBTA and California Fish and Game Code would be avoided.The nesting season for most birds in Santa Clara County extends from February 1 through August 31.
Pre-Construction Surveys. If it is not possible to schedule construction activities between September 1 and January 31, then preconstruction surveys for nesting birds shall be conducted by a qualified biologist to ensure that no nests would be disturbed during project implementation.
These surveys shall be conducted no more than five days prior to the initiation of any site disturbance activities and equipment mobilization, including tree, shrub, or vegetation removal, fence installation, grading, etc.
If project activities are delayed by more than five days, an additional nesting bird survey shall be performed. During this survey, the biologist will inspect all trees and other potential nesting habitats ( e.g., trees, shrubs, culverts) in and immediately adjacent to the impact area for nests. Active nesting is present if a bird is building a nest, sitting in a nest, a nest has eggs or chicks in it, or adults are observed carrying food to the nest. The results of the surveys shall be documented .
If an active nest is found sufficiently close to work areas to be disturbed by these activities , the biologist will determine the extent of a construction-free buffer zone to be established around the nest (typically up to 1,000 feet for raptors and up to 250 feet for other species), to ensure that no nests of species protected by the Migratory Bird Treaty Act MBTA and California Fish and Game Code will be disturbed during project implementation .
Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading will be permitted until the chicks have fledged. Monitoring shall be required to ensure compliance with MBTA and relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.
■ Mitigation Measure CUL-1. The City of Cupertino (City) shall note on any plans that require ground disturbing excavation that there is a potential for exposing buried cultural resources including prehistoric Native American burials. Significant prehistoric cultural resources are defined as human burials, features or other clustering' s of finds made, modified, or used by Native American peoples in the past. The prehistoric and protohistoric indicators of prior cultural occupation by Native Americans include artifacts and human bone, as well as soil discoloration, shell, animal bone, sandstone cobbles, ashy areas, and baked or vitrified clays. Prehistoric materials may include:
a. Human bone - either isolated or intact burials.
b. Habitation (occupation or ceremonial structures as interpreted from rock rings/features, distinct ground depressions, differences in compaction (e.g., house floors).
c. Artifacts including chipped stone objects such as projectile points and bifaces; groundstone artifacts such as manos, metates, mortars, pestles, grinding stones, pitted hammerstones; and, shell and bone artifacts including ornaments and beads.
d. Various features and samples including hearths (fire-cracked rock; baked and vitrified clay), artifact caches, faunal and shellfish remains (which permit dietary reconstruction), distinctive changes in soil stratigraphy indicative of prehistoric activities. e. Isolated artifacts.
■ Mitigation Measure CUL-2. It is recommended that prior to the start of ground disturbing construction, the City should implement a Worker Awareness Training (WAT) program for cultural resources. Training shall be required for all construction personnel participating in ground disturbing construction to alert them to the archaeological sensitivity of the project area and provide protocols to follow in the event of a discovery of archaeological materials. The training shall be provided by a Registered Professional Archaeologist (RP A).
The RP A shall develop and distribute for job site posting an "ALERT SHEET" summarizing potential archaeological finds that could be exposed and the protocols to be followed as well as points of contact to alert in the event of a discovery.
■ Mitigation Measure CUL-3. The City shall retain a Professional Archaeologist on an "on-call" basis during ground disturbing construction to review, identify and evaluate any potential cultural resources that may be inadvertently exposed during construction. The archaeologist shall review and evaluate any discoveries to determine if they are historical resource(s) and/or unique archaeological resources under the California Environmental Quality Act (CEQA).
If the Professional Archaeologist determines that any cultural resources exposed during construction constitute a historical resource and/or unique archaeological resource under CEQA, he/she shall notify the City and other appropriate parties of the evaluation and recommend mitigation measures to mitigate to a less-than significant impact in accordance with California Public Resources Code Section 15064.5. Mitigation measures may include avoidance, preservation in-place, recordation, additional archaeological testing, and data recovery among other options. The completion of a formal Archaeological Monitoring Plan (AMP) and/or Archaeological Treatment Plan (ATP) that may include data recovery may be recommended by the Professional Archaeologist if significant archaeological deposits are exposed during ground disturbing construction. Development and implementation of the AMP and ATP and treatment of significant cultural resources will be determined by the City in consultation with any regulatory agencies.
■ Mitigation Measure CUL-4. In accordance with Section 7050.5 of the California Health and Safety Code, if potential human remains are found, immediately notify the lead agency (City of Cupertino or Santa Clara County) staff and the Santa Clara County Coroner of the discovery. The coroner would provide a determination regarding the nature of the remains within 48 hours of notification. No further excavation or disturbance of the identified material, or any area reasonably suspected to overlie additional remains, can occur until a determination has been made. If the County Coroner determines that the remains are, or are believed to be, of Native American ancestry, the coroner would notify the Native American Heritage Commission within 24 hours. In accordance with California Public Resources Code, Section 5097.98, the Native American Heritage Commission must immediately notify those persons it believes to be the Most Likely Descendant from the deceased Native American. Within 48 hours of this notification, the Most Likely Descendant would recommend to the lead agency their preferred treatment of the remains and associated grave goods.
■ Mitigation Measure TRIB-1. It is possible for a lead agency to determine that an artifact is considered significant to a local tribe, and thus considered a significant resource under CEQA, even if it would not otherwise be considered significant under CEQA. As such, all Native American tribal finds are to be considered significant until the lead agency has enough evidence to make a determination of significance. In the event that Native American archaeological resources are discovered, or suspected to have been discovered, Native American monitoring will be required before further ground disturbance shall be allowed.
6. Adopt and incorporate into the Project all of the Conditions of Approval noted in the IS/MND, which are listed below, as required conditions of approval of the Project to the extent they are within the responsibility and jurisdiction of the City:
• Standard Permit Condition: The following measures shall be applied to development of the project site to reduce and/or avoid impacts to paleontological resources:
If vertebrate fossils or other paleontological resources are discovered during construction, all work on the site shall stop immediately until a qualified professional paleontologist can assess the nature and importance of the find and recommend appropriate treatment. Treatment may include preparation and recovery of fossil materials so that they can be housed in an appropriate museum or university collection and may also include preparation of a report for publication describing the finds. The City of Cupertino's Project Manager or other suitable representative shall be responsible for submitting the paleontologist's report to the Director of Public Works and implementing the recommendations of the qualified professional paleontologist. The representative shall submit a report to the Director of Public Works indicating how the paleontologist' s recommendations were complied with as soon as all measures have been incorporated into the project.
7. Adopt the Mitigation Monitoring and Reporting Program for the Project, as amended, attached hereto as Exhibit EA-1, and incorporated herein by reference, which incorporates all the mitigation measures identified in the Final IS/MND.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this __ th day of--~ 2024, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Shiela Mohan, Mayor Date
City Council
ATTEST:
Kirsten Squarcia, City Clerk Date
EXHIBIT EA-1
EXHIBIT EA-1: Mitigation Monitoring and Reporting Program Lawrence-Mitty Park and Trail Project
MITIGATION MONITORING AND REPORTING PROGRAM
This Mitigation, Monitoring and Reporting Program (MMRP) has been prepared pursuant to the CEQA Guidelines, which state:
"When adopting a mitigated negative declaration, the lead agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to mitigate or avoid significant environmental effects" (§15074(d)) and;
"The Lead Agency may choose whether its program will monitor mitigation, report on mitigation, or both. "Reporting" generally consists of a written compliance review that is presented to the decision-making body or authorized staff person. A report may be required at various stages during project implementation or upon completion of the mitigation measure. "Monitoring" is generally an ongoing or periodic process of project oversight.
There is often no clear distinction between monitoring and reporting and the program best suited to ensuring compliance in any given instance will usually involve elements of both." (§15097 (c))
The table beginning on the next page lists the impacts, mitigation measures, and timing of the mitigation measures (when the measures will be implemented) related to the City of Cupertino, Lawrence-Mitty Park and Trail Project. All mitigation measures listed here will be implemented by the City and its contractors .
According to CEQA Guidelines section 15126.4 (a) (2), "Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments. In the case of the adoption of a plan, policy, regulation, or other public project, mitigation measures can be incorporated into the plan, policy, regulation, or project design." Therefore, all mitigation measures as listed in this MMRP will be adopted by the City when the project is approved.
Lawrence-Mitty Park and Trail Project
City of Cupertino
March 2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
Impact BI0-1. Mitigation Measure BI0-1a. Conduct Preconstruction Survey. No more Project construction than 24 hours prior to the date of initial ground disturbance, a pre- and project activities construction survey for southwestern pond turtle will be conducted within could result in direct the impact area by a qualified biologist. The survey will consist of walking and indirect impacts the limits of impact to ascertain the possible presence of the species. The to the southwestern qualified biologist will investigate all potential areas that could be used by pond turtle. southwestern pond turtle for feeding, sheltering, movement, and other essential behaviors.
A qualified biologist is an individual who shall have a degree in biological sciences or related resource management with a minimum of two seasonal years post-degree experience conducting surveys for each amphibian and reptile special-status species that may be present within the project area.
During or following academic training, the qualified biologist shall have achieved a high level of professional experience and knowledge in biological sciences and special-status species identification, ecology, and habitat requirements. Additionally, the qualified biologist must be permitted or authorized to handle and relocate southwestern pond turtle.
Mitigation Measure BI0-1b. Worker Environmental Awareness Program. All construction personnel will participate in a worker environmental awareness program. These personnel will be informed about the possible presence of all special-status species and habitats associated with the species identified here to be potentially present in the parcel and that unlawful take of the animal or destruction of its habitat is a violation of law. Prior to construction activities, a qualified biologist will instruct all construction personnel about (1) the description and status of the species; (2) the importance of their associated habitats; (3) a list of measures being taken to reduce impacts on these species during project construction and implementation; and (4) measures to be followed if special-status species are encountered during construction activities. A fact Lawrence-Mitty Park and Trail Project
City of Cupertino
2 Implementation Monitoring
and Timing Responsibility
Implementation: Monitoring: City
City of Cupertino of Cupertino and
or its contractor a qualified
shall implement biologist.
this measure with Initials: a qualified
biologist.
Timing: Date:
During
construction
activities.
March 2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
sheet conveying this information will be prepared for distribution to the construction crew and anyone else who enters the project site.
Mitigation Measure BI0-1c. Install Wildlife Exclusion Barrier. Prior to any ground disturbance in the work area, a temporary wildlife exclusion barrier will be installed along the limits of disturbance. A qualified biologist will inspect the area prior to installation of the barrier. The barrier will be designed to allow the southwestern pond turtles to leave the work area and prevent them from entering the work area. The fence will remain in place until all development activities have been completed. This barrier will be inspected daily and maintained and repaired as necessary to ensure that it is functional and is not a hazard to southwestern pond turtles on the outer side of the barrier.
Mitigation Measure BI0-1 d. Construction Monitoring. A qualified biologist or biological monitor will be onsite during all project activities that may result in the take of any special status species. The qualified biologist will be given the authority to freely communicate verbally, by telephone, electronic mail, or in writing at any time with construction personnel, any other person( s) at the project site, otherwise associated with the project, and regulatory agencies (e.g., USFWS or CDFW). The qualified biologist or biological monitor will have oversight over implementation of all the mitigation measures and will have the authority and responsibility to stop project activities if they determine any of the measures are not being fulfilled.
A biological monitor is an individual who shall have academic and professional experience in biological sciences and related resource management activities as it pertains to this project, experience with construction-level biological monitoring, be able to recognize species that Lawrence-Mitty Park and Trail Project
City of Cupertino
Page3
Implementation Monitoring
and Timing Responsibility
March 2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
may be present within the project area, and be familiar with the habits and behavior of those species.
Impact B10-2: Mitigation Measure BI0-2a: Pre-Construction Survey for San Project construction Francisco Dusky-Footed woodrats. Within 30 days prior to the start of and project activities construction activities, a qualified biologist shall map all San Francisco could result in direct dusky-footed woodrat houses within a 50-foot buffer around the project and indirect impacts footprint. Environmentally sensitive habitat fencing shall be placed to to the San Francisco protect the houses with a minimum 50-foot buffer. If a 50-foot buffer is not dusky-footed feasible, a smaller buffer may be allowable based on advice from a woodrat. qualified biologist with knowledge of wood rat ecology and behavior, or Mitigation Measure BIO-2b may be implemented.
Mitigation Measure BI0-2b: Relocation of Woodrat Houses. In the unlikely event that one or more woodrat houses are determined to be present and physical disturbance or destruction of the houses cannot be avoided, then the woodrats shall be evicted from their houses and the nest material relocated outside of the disturbance area, prior to onset of activities that would disturb the house, to avoid injury or mortality of the woodrats. The reproductive season for San Francisco dusky-footed woodrats typically starts in February or March and breeding activity usually continues to July but can extend into September. Thus, relocation efforts should be completed in the fall to minimize the potential for impacts on young woodrats in the house. Additionally, it is recommended that the period between the completion of the relocation efforts and the start of construction activities be minimized to reduce the potential for woodrats to reconstruct houses in the project footprint prior to the start of construction activities.
Lawrence-Mitty Park and Trail Project
City of Cupertino
Page4
Implementation Monitoring
and Timing Responsibility
Implementation: Monitoring: City
City of Cupertino of Cupertino and
or its contractor a qualified
shall implement biologist.
this measure with Initials: a qualified
biologist.
Timing: Date:
During
construction
activities.
March2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
Impact BI0-3: Mitigation Measure BI0-3a: Pre-Construction Survey for Roosting Project construction Bats. A survey of culverts within the project site, including a 50-foot buffer activities could (as feasible) shall be conducted by a qualified bat biologist no less than 30 potentially result in days before the start of construction-related activities (including but not the abandonment of limited to mobilization and staging, clearing, grubbing, tree removal, roosting bat nest vegetation removal, fence installation, demolition, and grading). If sites. construction activities are delayed by more than 30 days, an additional bat survey shall be performed. The survey may be conducted at any time of year but should be conducted in such a way to allow sufficient time to determine if special-status bats or maternity colonies are present on the site. The results of the survey shall be documented.
If no habitat or signs of bats are detected during the habitat suitability survey, no further surveys are warranted. If suitable habitat is present and signs of bat occupancy (e.g., guano pellets or urine staining) are detected, Mitigation Measure BIO-3b shall apply.
Mitigation Measure BI0-3b: Acoustic Survey. If suitable habitat is present and signs of bat occupancy are detected, a follow-up dusk emergence survey shall be conducted no less than 30 days prior to construction activities. A dusk survey will determine the number of bats present and will also include the use of acoustic equipment to determine the species of bats present. The results of the survey shall be documented.
If an active roost is observed within the project site, Mitigation Measure BIO-3c shall apply.
Mitigation Measure BI0-3c: Roost Buffer. If a day roost or a maternity colony is detected and is found sufficiently close to work areas to be disturbed by construction activities, the qualified biologist shall determine the extent of a construction-free buffer zone to be established around the roost in consultation with CDFW. Within the buffer zone, no site Lawrence-Mitty Park and Trail Project
City of Cupertino
Implementation Monitoring
and Timing Responsibility
Implementation: Monitoring: City
City of Cupertino of Cupertino and
or its contractor a qualified
shall implement biologist.
this measure with Initials: a qualified
biologist.
Timing: Date:
Prior to
construction
activities.
March 2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading shall be permitted. Monitoring shall be required to ensure compliance with relevant California Fish and Game Code requirements . Monitoring dates and findings shall be documented.
Impact B10-4: Mitigation Measure B10-4: Pre-Construction/Pre-Disturbance Survey Construction for Nesting Birds.
disturbance during Avoidance. To the extent feasible, construction activities should be the avian breeding scheduled to avoid the nesting season. If construction activities are season could cause scheduled to take place outside the nesting season, all impacts to nesting the incidental loss of birds protected under the MBTA and California Fish and Game Code would eggs or nestlings, or be avoided. The nesting season for most birds in Santa Clara County cause the extends from February 1 through August 31 . abandonment of nests, resulting in Pre-Construction Surveys. If it is not possible to schedule construction the incidental take of activities between September 1 and January 31, then preconstruction protected nesting surveys for nesting birds shall be conducted by a qualified biologist to birds. ensure that no nests would be disturbed during project implementation.
These surveys shall be conducted no more than five days prior to the initiation of any site disturbance activities and equipment mobilization, including tree, shrub, or vegetation removal, fence installation, grading, etc.
If project activities are delayed by more than five days, an additional nesting bird survey shall be performed. During this survey, the biologist will inspect all trees and other potential nesting habitats (e.g., trees, shrubs, culverts) in and immediately adjacent to the impact area for nests. Active nesting is present if a bird is building a nest, sitting in a nest, a nest has eggs or chicks in it, or adults are observed carrying food to the nest. The results of the surveys shall be documented.
Lawrence-Mitty Park and Trail Project
City of Cupertino
Page6
Implementation Monitoring
and Timing Responsibility
Implementation: Monitoring: City
City of Cupertino of Cupertino and
or its contractor a qualified
shall implement biologist.
this measure with Initials: a qualified
biologist.
Timing: Date:
Prior to and
during
construction
activities.
March 2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
If an active nest is found sufficiently close to work areas to be disturbed by these activities, the biologist will determine the extent of a construction-free buffer zone to be established around the nest (typically up to 1,000 feet for raptors and up to 250 feet for other species), to ensure that no nests of species protected by the MBTA and California Fish and Game Code will be disturbed during project implementation. Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading will be permitted until the chicks have fledged. Monitoring shall be required to ensure compliance with MBTA and relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.
Impact CUL-1: Mitigation Measure CUL-1: The City of Cupertino (City) shall note on any Ground disturbing plans that require ground disturbing excavation that there is a potential for excavation related to exposing buried cultural resources including prehistoric Native American the project may burials. Significant prehistoric cultural resources are defined as human expose buried burials, features or other clusterings of finds made, modified or used by cultural resources Native American peoples in the past. The prehistoric and protohistoric including prehistoric indicators of prior cultural occupation by Native Americans include artifacts Native American and human bone, as well as soil discoloration, shell, animal bone, burials. sandstone cobbles, ashy areas, and baked or vitrified clays. Prehistoric materials may include:
a. Human bone - either isolated or intact burials.
b. Habitation (occupation or ceremonial structures as interpreted from rock rings/features, distinct ground depressions, differences in compaction (e.g., house floors) .
Lawrence-Mitty Park and Trail Project
City of Cupertino
Implementation Monitoring
and Timing Responsibility
Implementation: Monitoring:
The City of City of Cupertino. Cupertino shall In the event implement this archaeological measure with a resources are qualified discovered, a Archaeologist. qualified Timing: During archaeologist
construction shall write a
activities. report detailing
their findings and
submit it to the
City of Cupertino.
Initials:
Date:
March 2024
Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
c. Artifacts including chipped stone objects such as projectile points and bifaces; groundstone artifacts such as manos, metates, mortars, pestles, grinding stones, pitted hammerstones; and shell and bone artifacts including ornaments and beads.
d. Various features and samples including hearths (fire-cracked rock; baked and vitrified clay), artifact caches, faunal and shellfish remains (which permit dietary reconstruction), distinctive changes in soil stratigraphy indicative of prehistoric activities. e. Isolated artifacts.
Mitigation Measure CUL-2: It is recommended that prior to the start of ground disturbing construction, the City should implement a Worker Awareness Training (WAT) program for cultural resources. Training shall be required for all construction personnel participating in ground disturbing construction to alert them to the archaeological sensitivity of the project area and provide protocols to follow in the event of a discovery of archaeological materials. The training shall be provided by a Registered Professional Archaeologist (RPA). The RPA shall develop and distribute for job site posting an "ALERT SHEET" summarizing potential archaeological finds that could be exposed and the protocols to be followed as well as points of contact to alert in the event of a discovery.
Mitigation Measure CUL-3: The City shall retain a Professional Archaeologist on an "on-call" basis during ground disturbing construction to review, identify and evaluate any potential cultural resources that may be inadvertently exposed during construction. The archaeologist shall review and evaluate any discoveries to determine if they are historical resource(s) and/or unique archaeological resources under the California Environmental Quality Act (CEQA). If the Professional Archaeologist determines that any cultural resources exposed during construction constitute a historical Lawrence-Mitty Park and Trail Project
City of Cupertino
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Implementation Monitoring
and Timing Responsibility
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Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
resource and/or unique archaeological resource under CEQA, he/she shall notify the City and other appropriate parties of the evaluation and recommend mitigation measures to mitigate to a less-than significant impact in accordance with California Public Resources Code Section 15064.5. Mitigation measures may include avoidance, preservation in- place, recordation, additional archaeological testing and data recovery among other options. The completion of a formal Archaeological Monitoring Plan (AMP) and/or Archaeological Treatment Plan (ATP) that may include data recovery may be recommended by the Professional Archaeologist if significant archaeological deposits are exposed during ground disturbing construction . Development and implementation of the AMP and ATP and treatment of significant cultural resources will be determined by the City in consultation with any regulatory agencies.
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City of Cupertino
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Implementation Monitoring
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Mitigation Monitoring and Reporting Program
Impact Mitigation Measure
Impact CUL-2: Mitigation Measure CUL-4: In accordance with Section 7050.5 of the Construction of the California Health and Safety Code, if potential human remains are found, project may immediately notify the lead agency (City of Cupertino or Santa Clara inadvertently County) staff and the Santa Clara County Coroner of the discovery. The uncover unrecorded coroner would provide a determination regarding the nature of the remains human remains. within 48 hours of notification. No further excavation or disturbance of the identified material, or any area reasonably suspected to overlie additional remains, can occur until a determination has been made. If the County Coroner determines that the remains are, or are believed to be, of Native American ancestry, the coroner would notify the Native American Heritage Commission within 24 hours. In accordance with California Public Resources Code, Section 5097.98, the Native American Heritage Commission must immediately notify those persons it believes to be the Most Likely Descendant from the deceased Native American. Within 48 hours of this notification, the Most Likely Descendant would recommend to the lead agency their preferred treatment of the remains and associated grave goods.
Impact TRIB-1: Mitigation Measure TRIB-1: It is possible for a lead agency to determine Project construction that an artifact is considered significant to a local tribe, and thus considered could disturb or a significant resource under CEQA, even if it would not otherwise be damage unknown considered significant under CEQA. As such, all Native American tribal tribal cultural finds are to be considered significant until the lead agency has enough resources resulting evidence to make a determination of significance. In the event that Native in an adverse American archaeological resources are discovered, or suspected to have change in the been discovered, Native American monitoring will be required before significance of the further ground disturbance shall be allowed. tribal resource.
Lawrence-Mitty Park and Trail Project
City of Cupertino
Implementation Monitoring
and Timing Responsibility
Implementation: Monitoring:
The City of City of Cupertino
Cupertino shall and a qualified
implement this archaeologist.
measure. Initials:
Timing: Date:
During
construction
activities.
Implementation: Monitoring:
The City of City of Cupertino.
Cupertino or its In the event
contractor shall paleontological
implement this resources are
measure. encountered, a
paleontologist Timing: shall be
During contacted to
construction evaluate the find.
activities Initials:
Date:
March2024