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CC 11-29-2010 �� Ip. CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Adjourned Meeting Monday, November 29, 2010 ROLL CALL At 6:00 p.m. Mayor Kris Wang called the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. Present: Mayor Kris Wang, Vice -Mayor Gilbert Wong, and Council members Barry Chang, Orrin Mahoney, and Mark Santoro. Absent: none. CLOSED SESSION 1. Subject: Conference with legal counsel - anticipated litigation (Government Code 54956.9(b)(1). Description: Significant exposure to litigation (one case). 2. Subject: Conference with real property negotiator (Govt. Code 54956.8); Property: 10800 Torre Avenue; Cupertino Negotiator: Terry Greene; Negotiating Parties: City of Cupertino & potential lessee per RFP Under negotiation: Lease - price and terms of payment (RFP) At 6:00 p.m., Council recessed to a closed session to discuss these two items. At 6:45 p.m. Council reconvened in open session. Mayor Kris Wang announced that for item No. 1 Council met in closed session and received a briefing from legal counsel. No action was taken. For item No. 2 Council met in closed session and received a briefing from real property negotiators, and gave instructions to bring back the lease in open session. PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Kris Wang called the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL Present: Mayor Kris Wang, Vice -Mayor Gilbert Wong, and Council members Barry Chang, Orrin Mahoney, and Mark Santoro. Absent: none. November 29, 2010 Cupertino City Council Page 2 CEREMONIAL MATTERS — PRESENTATIONS Mayor Wang presented a proclamation to Bowlmor Lanes thanking them for providing a Thanksgiving Feast for clients of West Valley Community Services. Naomi Nakano - Matsumoto, Executive Director of West Valley Community Services, accepted the proclamation on behalf of Bowlmor Lanes and commended them for being a great business and community volunteer. POSTPONEMENTS - None WRITTEN COMMUNICATIONS City Clerk Kimberly Smith distributed the following written communications: • Copy of the staff PowerPoint presentation (Item No. 7) • Email in favor from Santa Clara Valley Audubon Society, emails from Susan Sievert and Debi Jamison objecting to a shorter time frame for noticing, and a status report from City Architect Terry Greene (Item No. 9) • Emails of opposition from Jessie Au, Liu Peng, Steven Yang, Suresh and Rema Vasa, Ginger Standridge, Archana Rawat, Prasad Narayana, Chefka Zarka, and a status report from Assistant Public Works Director Terry Greene (Item No. 10) ORAL COMMUNICATIONS The following individuals spoke in opposition to Lehigh Cement Plant's proposal to expand their facilities: Cathy Helgerson, Roy Hong, Richard Adler, Donald Potter, Kay Lau, Tim Brand, Amy Migdal, Kirk Lau, Soeun Park, Paula Wallis and Doran Drusihsky. Ms. Helgerson referred to a letter from the California Regional Water Quality Control Board in which they asked Lehigh for a technical report on non -storm water discharge, a report on inspection maintenance and a report on pollutant flow rate monitoring and samples. She stated that that Lehigh would be penalized if they did not comply with these requests. Furthermore, she requested that when Council received such information they make it available to the public. Additional comments from the speakers included the following: This issue was not going away; the public was depending on the Council to address raised concerns, and Lehigh should abide by the rules; the plant continued to run without any negative consequences for violations; new Environmental Protection Agency guidelines on hazardous air emissions will become effective in 2013, and the cement industry was going to court to oppose those new regulations arguing that the numbers were too low and would not be achievable; the speakers were opposed to the open pit mine and waste disposal areas; and the city should join neighboring cities in efforts toward a satisfactory solution. The speakers urged the City Council to adopt a resolution for Board of Supervisors stating that Lehigh did not have any vested rights. City Manager David Knap stated that the city was in regular communication with the County and other regulatory agencies involved in this matter and the city had notified all such agencies that they wanted to receive all related correspondence. Study sessions had been held with the regulators November 29, 2010 Cupertino City Council Page 3 and all received correspondence had been placed on the city's website for the public's information. Additionally, a monitoring station had been put in place. Councilmember Chang stated that he was frustrated with the Bay Area Air Quality Management District as he had not received information he had requested on this matter. He urged Council to send a strong message to all related agencies. Wong moved and Mahoney seconded to end oral communications. The motion carried with Council Member Chang voting no. CONSENT CALENDAR All items were removed from the Consent Calendar for further discussion. ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 3. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Duen Yuen Wong and Yanti Hidajat, 20955 Alves Drive. Recommended Action: Adopt Resolution No. 10 -214. Description: The property owners of this residential development agree to grant to the City the right to extract water from the basin under the overlying property. 4. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Cheng -Chih Hsu and Yi -Ting Wu, 20136 Peachtree Lane. Recommended Action: Adopt Resolution No. 10 -215. Description: The property owners of this residential development agree to grant to the City the right to extract water from the basin under the overlying property. 5. Subject: Quitclaim Deed and Authorization. for Underground Water Rights, Steven K. Yoshimoto and Catherine A. Yoshimoto, 21120 Canyon Oak Way. Recommended Action: Adopt Resolution No. 10 -216. Description: The property owners of this residential development agree to grant to the City the right to extract water from the basin under the overlying property. Cathy Helgerson had several questions about these quitclaim items. What happens when the property was sold? Did you have to disclose that you had no water rights under your house? What did this do to property values? She did not believe anyone should have to give up their water rights without a vote of the community. 6. Subject: Maintenance Agreement, Wen Chung Stewart Wu and Cheng Yuan Tourisa Wu, 10077 Scenic Boulevard. Recommended Action: Adopt Resolution No. 10 -217. Description: The property owners of this single family residential development will be required to maintain all non - standard items within the City's right of way. November 29, 2010 Cupertino City Council Page 4 Council Member Chang noted that this appeared to be a rather unusual agreement and asked for clarification. Assistant Public Works Director Glen Goepfert explained that this was a semi -rural area and the improvements were not being put in where the city had standard improvements. The applicant wanted to expand the driveway into the city's right of way and would be responsible for the maintenance and liability. He further noted that if the city wanted to change this agreement in the future they could do so. Chang moved and Mahoney seconded to approve the Consent Calendar as recommended. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. PUBLIC HEARINGS 7. Subject: Appeal of a Director's Approval for a personal wireless service facility at 11371 Bubb Road. Recommended Action: Deny appeal (See Attachment A. Planning Commission Resolution No. 6616) Description: Application: DIR- 2010 -28 Appeal Applicant: Dayna Aguirre (for T- Mobile) Appellant: Shaul Berger Location: 11371 Bubb Road, APN 356 -23 -047 Application Summary: Appeal of a Director's Minor Modification to allow a personal wireless service facility with three panel antennas and four associated equipment boxes to be installed on an existing PG &E pole located in front of 11371 Bubb Road. Senior Planner Colin Jung presented an overview of the staff report noting that this project had been approved by staff on September 7, 2010, . appealed on September 20, 2010 and on November 9, 2010 the Planning Commission had denied the appeal. He stated that the appeal summary included health concerns, proposed location near residential and inaccuracies in the radio frequency emission study. Mr. Jung stated that a master plan was on file which showed preferred locations for wireless facilities in the city, which showed guidelines for locations but not specific sites. He noted that if any project met FCC standards, the city was unable to deny the project on basis of health and safety issues. City Attorney Carol Korade added that FCC standards were nationwide and the city could not change these standards and was required to abide by them. The following individuals spoke in opposition to the installation of a personal wireless service facility on Bubb Road: Shaul Berger, Luis Nunez, Saleh Osman, Chen Chou, Michael Chen, Madhu Gi, Prasad Narayana, CheryLiu, Manjari Asawa, Cathy Helgerson, Catherine Ore, Raju G., Taiyi Cheng and Petr Vandrovec. They raised the following issues and concerns: There would be a negative impact on property values; the sites were too close to neighboring schools, and there were overall health and safety issues; other sites such as hillsides should be November 29, 2010 Cupertino City Council Page 5 considered; there would be negative visual impacts; the pole was old, cracked and not strong enough to hold equipment; there would be negative noise levels; the city should take responsibility for the spread of pollution; and a master plan was needed which would show the exact location where the city wanted wireless facilities. Dayna Aguirre, representing Sutro Consulting for T- Mobile, stated that there was a coverage issue and customers were having difficulty with dropped calls and the inability to make calls. She said that putting an antenna on a hillside would not address these site specific problems. She said that a tower would greater coverage but was not possible in this location. She said that PG &E did a structural analysis to determine that the poles being considered are structurally sound. The City Council discussed Linda Vista Park, Results Way and the water tank on Regnart Road as three possible alternative sites. Dayna Aguirre, representing Sutro Consulting for T- Mobile, stated that she knew the Results Way location would not work but it would be up to the radio frequency engineers to look at the other two sites. She stated that the company had complied with the city's requests regarding this application and she asked for a Council vote at this meeting and did not agree to a continuation. Action: Mahoney moved and Wong seconded to deny the appeal and uphold the approval of the personal wireless service facility at 11371 13ubb Road. Wong seconded, and the motion carried 3 -2, with Chang and Wang voting no. RECESS - The City Council was in recess from 10:00 p.m. to 10:12 p.m. UNFINISHED BUSINESS - None NEW BUSINESS 8. Subject: Agreement with the Association of Bay Area Governments (ABAG) to receive grant funds for the installation of trash capture devices. Recommended Action: Adopt a resolution 10 -218 authorizing the City Manager to execute the agreement. Description: This agreement will allow the City to receive grant funds for the installation of trash capture devices (TCDs) as required by the State Water Resources Control Board. Assistant Public Works Director Glen Goepfert stated that the city was required to acquire, install and maintain trash capture devices that would collect trash transported by rainwater from retail /wholesale commercial land -use areas. This requirement must be met by July 1, 2014. The grant funding agreement for this project with ABAG must be executed by January 1, 2011 or the funds would be returned to the funding pool to be divided among the participating entities. November 29, 2010 Cupertino City Council Page 6 Cathy Helgerson asked where they would be set up, who would be monitoring and how this could be expanded to monitor for water pollution. She noted that the State Water Resources Control Board was not monitoring the water and with the money the city had in reserves they could be doing this. She further stated the pollution from the trash was a small issue related to the water pollution issue. Action: Mahoney moved and Wong seconded to adopt Resolution No. 10 -218. The motion carried unanimously. 9. Subject: Stevens Creek Corridor Park, Phase II, Progress Update. Recommended Action: Review alternatives relative to potential grant funding. Description: A summary of the impacts of accepting known and expected grants on the currently approved project scope, schedule and budget. The City Clerk distributed emails in favor of the project from Santa Clara Valley Audubon Society, emails from Susan Sievert and Debi Jamison objecting to a shorter time frame for noticing, and a status report from City Architect Terry Greene. The City Architect reviewed the staff report and said that in June 2009 Council approved a Phase 11 CIP project with a budget of $1.4 million and authorized the expenditure of up to $200,000 to initiate the design effort. In September 2010 the city was notified that it had been awarded a $1.2 grant by the California River Parkways agency. This grant had a project completion deadline of September 2013. The agreement to accept this grant could be signed as late as June 2011; however, the city would need to begin design no later than January 2011 to ensure completion by the deadline. He reviewed four funding alternatives to the Council for this project. In response to an inquiry from Council, Mr. Greene said that alternative 4A (funding for an expanded scope for the trail, bridge, parking lot and creek restoration, and golf course) would satisfy the grant requirements for creek restoration. It would include new tree planting along the west bank of the channel, normal contingencies were included and the CEQA addendum /mitigated negative declaration was built into the cost estimates. He said the proposed location in alternative 4A had the least impact on trees, the riparian corridor and the golf course; it kept intact the steelhead habitat and conformed to the criteria of being 100' from any residence. Donna Austin, member of the Stocklmeir Task Force and Board Member of the Cupertino Historical Society, commented on the significant history of this site and supported Council's earlier action of preserving the property, restoring the creek and expanding the trail. She supported Alterative 4A as having the least impact on the orchard. Shani Kleinhaus, Santa Clara Valley Audubon Society, commented that the city had done a beautiful job in Phase 1 of restoring the creek and they supported Alternative 4A. In addition if money was an issue she urged Council to do the stream restoration first and then the trail. Anne Ng, member of the Stocklmeir Task Force and Board Member of the Friends of Stevens Creek Trail, thanked Council for approving Phase 1 of this project. She believed Alternative 4A or 4B would be good options but she personally preferred Alternative 4A. November 29, 2010 Cupertino City Council Page 7 Deborah Jamison addressed creek ecology issues noting that any human activity near riparian habitat affected wildlife. She agreed that Alternative 4A was a good option and believed the conservation community would be happy with that choice. She also agreed that the creek restoration work should be done before the trail work. City Architect said Council would be given more details on the alternatives at the January 18 meeting. At that time Council will need to decide whether or not to accept the California River Parkways grant in principle; to choose an alternative; to authorize staff to secure additional grants; to decide on a CEQA addendum or mitigated negative declaration and to authorize staff to begin design not to exceed $200,000. The Council received the report and no action was taken. 10. Subject: Scenic Circle Access, Progress Update. Recommended Action: Review the final design and authorize bidding in early December 2010 for Scenic Circle Access. The City Clerk distributed emails in opposition to this project from Jessie Au, Liu Peng, Steven Yang, Suresh and Rema Vasa, Ginger Standrid.ge, Archana Rawat, Prasad Narayana, Chefka Zarka, and a status report from Assistant Public Works Director Terry Greene. The City Architect reported that in February 2010 Council supported proceeding with this project and providing a pathway to an existing bridge over Stevens Creek. He said that the bid documents included solutions to the neighbors' concerns regarding the location of the path, parking, the locked gate and trash. CEQA documents were issued for public review and the public comment period closed on December 6.. Mr. Greene noted that Council had originally asked that this project be completed in time for the new school year. However, to accomplish that construction would have to occur during the winter storm season and the wildlife breeding season. To avoid these seasons would result in the project not being completed until late fall. Anne Ng thanked Council for allowing access so that students did not have to go on McClellan or Stevens Creek. She was concerned about bird breeding season and suggested that Council may want to delay the project. She hoped this would be well used and that parking problems did not materialize. Shani Kleinhaus, referred to a February 16 letter from the Santa Clara Valley Audubon Society in which they asked for a full environmental impact report on this project. The consultant however had felt that a mitigated negative declaration was sufficient. She had not had an opportunity to review the CEQA documents yet and hoped that Council would not proceed until all comments had been received and reviewed. In her opinion there was no justification to proceed during bird nesting season. Deborah Jamison commented that there had been two meetings with the neighbors of Scenic Circle but staff had not held meetings with residents who had experience in riparian ecology and bird nesting. Ms. Jamison reminded Council that in the original design this was supposed to be the quiet side of the creek. She did not believe there was any reason to do this project November 29, 2010 Cupertino City Council Page 8 during bird nesting season. A couple of months delay was not going to make any difference. She also noted that visual clues were needed to keep people on the proposed trail. Carol Stanek thanked Council for approving this access and urged them to move forward with its completion. Council Member Chang did not support authorizing the bids until the CEQA comments had been received. The City Architect Terry Greene said that it would be appropriate to authorize the bids without the comments, but not to award the bid until the comments were accepted. Wong moved and Mahoney seconded to authorize bidding on December 3. The motion carried with Council member Chang voting no. ORDINANCES - None STAFF REPORTS - None COUNCIL REPORTS Mayor Wang noted that at today's press conference the announcement was made that the energy efficient agreement project had officially started. This project was expected to be completed in February, 2011. On Friday, December 3rd the Christmas tree lighting ceremony will take place at 6:00 p.m. at the Quinlan Center. On Wednesday, December 1 the Hanukkah menorah will be at Cali Mill Plaza at 6:00 p.m. ADJOURNMENT At 12:03 p.m., the meeting was adjourned. t. z2 /ti �' C(, �3Z Kimberly Smith, City Jerk Staff reports, backup materials, and items distributed at the City Council meeting are available for review at the City Clerk's Office, 777 -3223, and also on the Internet at www.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet. Most Council meetings are shown live on Comcast Channel 26 and AT &T U -verse Channel 99 and are available at your convenience at www.cupertino.org. Click on Agendas & Minutes, then click Archived Webcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777 -2364.