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CC 11-16-2010 A SS 19.s. s CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Special Meeting Tuesday, November 16, 2010 ROLL CALL Present: Mayor Kris Wang, Vice -Mayor Gilbert Wong, and Council members Barry Chang, Orrin Mahoney, and Mark Santoro. Absent: none. At 5:30 p.m. Mayor Kris Wang called the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California. CLOSED SESSION 1. Subject: Conference with real property negotiator (Govt. Code 54956.8); Property: 10800 Torre Avenue; Cupertino Negotiator: Terry Greene; Negotiating Parties: City of Cupertino & potential lessees per RFP Under negotiation: Lease - price and terms of payment (RFP) la. Subject: Conference with legal counsel anticipated litigation (Government Code 54956.9(b)(1). Description: Significant exposure to litigation (one case). At 5:30 p.m. Council went into closed session to discuss these items. At 6:50 p.m. Council reconvened in open session. Mayor Kris Wang reported that on item No. 1, the City Council met in closed session, discussed the topic, and gave instructions to their real property negotiators. No action was taken. On item No. la, Council met in closed session and received a briefing from legal counsel regarding significant exposure to litigation. No action was taken. PLEDGE OF ALLEGIANCE At 6:50 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. CEREMONIAL MATTERS — PRESENTATIONS November 16, 2010 Cupertino City Council Page 2 2. Subject: Presentation from North Valley Job Training Consortium (NOVA), a non - profit federally- funded employment and training agency. Recommended Action: Receive presentation Action: Kris Stadelman, NOVA Director, and Linda Thor, Chancellor - Foothill /DeAnza Community College District, explained that NOVA, which was formed 25 years ago, had as their goal developing a skilled workforce for Silicon Valley. They provided workforce services to job seekers and businesses and invested $10 million annually in the local economy. The organization was funded primarily by competitive federal and state grants. There was a one -stop resource center for job seekers where such services as workshops, networking programs, employer connections, training and a youth employment program were available. Cupertino residents actively participated in NOVA. 3. Subject: Proclamation recognizing Pancreatic Cancer Awareness Month in Cupertino. Recommended Action: Present proclamation Action: Mayor Wang presented a proclamation to Joan Chintz recognizing November as Pancreatic Cancer Awareness Month in Cupertino. Mrs. Chintz noted that her husband had died of pancreatic cancer and she was now actively involved in educating the public about this disease and in raising funds for research to eradicate it. 4. Subject: Proclamation for Marina Foods and Khong Guan Corporation in recognition for efforts to mitigate the economic impact from the bankruptcy of Tin Tin Super Market. Recommended Action: Present proclamation Action: Mayor Wang presented proclamations to representatives of the Marina Foods and Khong Guan Corporation. Both of these businesses agreed to accept the script formerly issued by the Tin Tin Market. When this market went out of business the script program which supported local programs stopped. These organizations came forward to mitigate this negative economic impact on the community. 5. Subject: Recognizing 26 students for their volunteer work at Silicon Valley Korean School. Recommended Action: Present letters of commendation Action: Mayor Wang presented letters of commendation to the students and thanked them for their dedication, hard work and many hours of volunteering at the Silicon Valley Koran School. A student representing the group thanked the Council for their recognition and expressed hope for the city's continued support. POSTPONEMENTS Vice -Mayor Gilbert Wong moved to continue item No. 23, amendments to the parking ordinance, to a later date so that the Council members could have more time to read the staff report. Mahoney seconded and the motion carried unanimously. WRITTEN COMMUNICATIONS City Clerk Kimberly Smith distributed the following written communications: • Copy of the PowerPoint presentation from NOVA (item No. 2) November 16, 2010 Cupertino City Council Page 3 • Copy of the staff PowerPoint presentation regarding a modification to use permits at the Oaks Shopping Center (item No. 22) • Attachment E to the staff report, Chapter 19.08 of the Municipal Code (item No. 23) • Copy of the staff PowerPoint regarding the parking ordinance amendments (item No. 23) • Copy of the staff PowerPoint regarding the Solar Power Purchase Agreement proposal (item No. 25) ORAL COMMUNICATIONS The following individuals addressed the Council with their concerns about the Lehigh Cement Plant: Lyn Faust, Phillip Pflager, Anne Pflager, Anya Kroth, Craig Lee, Vicky Ho, Artur Plonowski, Gary Ettinger, Paula Wallis, Rod Sinks, Thorsten von Stein, Rhoda Fry, Tim Brand, Nahui Quetzalcoatl, Kiyo Ouchidy, Ajai Gupta, Michael Klocker and Raj Krishnon. They addressed the following issues: Concern about the environment, public safety, noise, negative impact on health and air quality, high mercury emissions, unresolved violation issues, negative impact on quality of life, and the matter of Lehigh's vested rights on the property. Various speakers urged Council to schedule a special meeting before the end of the year to discuss the proposed expansion and the East Materials Storage Area (EMSA), to receive public input and to take a stand together and individually on these issues. In addition they asked the Council to send a letter to the Board of Supervisors stating the city's opposition to the proposed expansion and the new open pit mine with the added notation that there were no vested rights and that a use permit should be required. They also asked that the city inform the Board that Lehigh's request did not meet the criteria of the California Superior Court in that it has an adverse affect on the neighborhood. The speakers urged Council to join the neighboring cities of Los Altos and Los Altos Hills in stating their concerns. Mr. Brand distributed a copy of the Executive Officer's Report from the State Mining and Geology Board from their meeting of April 19, 2006 which addressed, in part, the issue of notices of violations and compliance standards. City Manager Dave Knapp stated that for the last three years the city had been active in contacting the regulators and encouraging them to enforce the rules and perform inspections at Lehigh. The city was also instrumental in getting the Environmental Protection Agency to establish new requirements on mercury emissions and has already installed an online real time monitoring station on emissions from the plant. He said that the city will continue to play an active role. Larry Goe addressed the Council on the matter of the parking ordinance. He understood this had been continued to a future meeting but suggested that the wording be modified to read "nothing shall be visible from the street even in a permitted area" and to remove the phrase `more than six feet high' from the ordinance. He explained that all types of construction equipment, etc. would be visible, and his changes would make the wording more reasonable. Michael Gottwald noted that the American Cancer Society's Relay for Life was scheduled for July 16 -17, 2011 and he urged everyone to support this event. RECESS - Council was in recess from 8:25 p.m. until 8:50 p.m. November 16, 2010 Cupertino City Council Page 4 CONSENT CALENDAR Wong moved and Mahoney seconded to approve the items on the Consent Calendar as recommended, with the exception of Item No. 6, 8, and 9 which were pulled for discussion. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 7. Subject: Payroll for period ending October 29, 2010 Recommended Action: Adopt Resolution No. 10 -207 10. Subject: Alcoholic Beverage License, Shangkee Noodle (formerly TK Noodle), 20735 Stevens Creek Boulevard Recommended Action: Approve application for On -Sale Beer and Wine for Bona Fide Public Eating Place. 11. Subject: Alcoholic Beverage License, Gumba's, 21678 Stevens Creek Boulevard. Recommended Action: Approve application for On -Sale Beer & Wine for Bona Fide Public Eating Place. 12. Subject: Alcoholic Beverage License, Cupertino Valero, 10002 North De Anza Boulevard. Recommended Action: Approve application for Off -Sale Beer & Wine License. 13. Subject: Alcoholic Beverage License, Little Sheep Mongolian Hot Pot, 19062 Stevens Creek Blvd Recommended Action: Approve application for On -Sale Beer & Wine for Bona Fide Public Eating Place. 14. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Jason S. Tan, 10540 Wunderlich Drive. Recommended Action: Adopt Resolution No. 10 -209 Description: The property owner of this residential development agrees to grant to the City the right to extract water from the basin under the overlying property. 15. Subject: Quitclaim Deed and Authorization for Underground Water Rights, Suman Sagar Cherukuri and Sreedevi Chalasani, 22487 Palm Avenue. Recommended Action: Adopt Resolution No. 10 -210 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. 16. Subject: Municipal Improvements, Stelling Palms of Cupertino, LLC, 10855 N. Stelling Road. Recommended Action: Accept Municipal Improvements. Description: Municipal improvements include sidewalk, curb & gutter, driveway approach, street striping, paving and new utility services. 17. Subject: Municipal Improvements, Joshua and Shabnam Richardson, 10650 Santa Lucia Road. November 16, 2010 Cupertino City Council Page 5 Recommended Action: Accept Municipal Improvements. Description: Municipal improvements include curb & gutter, driveway approach, street paving and new utility services. 18. Subject: Municipal Improvements, Huei -Hwang Hung and Tracy Hsu, 21871 Dolores Avenue. Recommended Action: Accept Municipal Improvements. Description: Municipal improvements include sidewalk, curb & gutter, driveway approach, and street paving. 19. Subject: Delegate authority to the Director of Administrative Services to act in all matters relating to excess workers' compensation insurance with the California State Association of Counties (CSAC) Excess Insurance Authority (EIA), except as to actions that must be approved by the City Council. Recommended Action: Adopt Resolution No. 10 -211 20. Subject: Santa Clara County Cities Association bylaws amendment. Recommended Action: Review and approve the amended bylaws. Description: Approval of at least 2/3 of the member jurisdictions is required. 21. Subject: Federal Surface Transportation (STP) and /or Congestion Mitigation and Air Quality Improvement (CMAQ) funding. Recommended Action: Adopt Resolution No. 10 -212 Description: A resolution expressing local support for the STP /CMAQ funding program, authorizing the filing of an application for funding and committing the necessary non - federal match, and stating the assurance to complete the project. ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 6. Subject: Accounts Payable for period ending October 29, 2010 Recommended Action: Adopt Resolution No. 10 -206 Director of Administrative Services Carol Atwood responded to questions raised by Council. She explained that National Deferred Compensation referred to the employee contributions which were collected and then distributed to three deferred compensation agencies. She thought the community playgrounds payment of $44,500 was for maintenance of current playground equipment but would verify this and report back to Council. 8. Subject: Accounts Payable for period ending November 5, 2010 Recommended Action: Adopt Resolution No.10 -208 Director of Administrative Services Carol Atwood stated that the $414,369 payment to Siemens Industry Inc. was part of the city's green program that included trading out irrigation and lighting. This was a progress payment in the $1.2 million project. She said she would report to Council on the amount paid so far and the balance due for this project. November 16, 2010 Cupertino City Council Page 6 9. Subject: Treasurer's Investment and Budget Report for quarter ending September 2010 Recommended Action: Accept the report Discussion: Councilmember Chang referred to this report which stated that the cash balance decreased from June to September by $2.9 million due to sales tax consulting and sheriff contract payments. He asked staff to provide the numbers separately for the sales tax consulting and sheriff contract payments. The Director of Administrative Services responded that she would provide Council with these figures. Chang moved and Wong seconded to approve item Nos. 6, 8, and 9 as presented. The motion carried by the following vote: Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. PUBLIC HEARINGS 22. Subject: Application to allow entertainment uses and activities to operate until 2:00 a.m. at the Oaks Shopping Center. Recommended Action: Approve modification to a Use Permit at Oaks Shopping Center. Description: Application: M- 2010 -02; Applicant: Al Parsano (Modena Investment, LP & Sunnyvale Holding, LLC); Location: 21255 -21275 Stevens Creek Boulevard; Application Summary: Use Permit Modification to allow commercial entertainment establishments and live entertainment activities and to extend the hours of operation for such uses to 2:00 a.m. in the Oaks Shopping Center. Senior Planner Colin Jung stated that the Planning Commission recommended approval of the use permit modification with several conditions which included in part the following: prohibited uses (billiard and pool halls, dance halls and arcades), entertainment permits to monitor allowed uses, no new entertainment uses in storefronts that face Mary Avenue, tenant notification, use permit review by staff after one year, security plan to be approved by city, meet noise standards, pay for excessive sheriff enforcement time if needed and no alcoholic beverages sold after 1:30 p.m. He also reported that public outreach had been conducted in the form of meeting with the apartment owner, a neighborhood meeting with apartment residents and the applicant outreached to existing center tenants. In response to an inquiry from Councilmember Chang, the applicant stated that they would not agree to stop serving liquor at 1:00 a.m. He explained that they had many events at which liquor was not served at all, but it was not good business practice to stop serving at 1:00 a.m. A deputy from the Sheriff's Department stated that permits for certain types of events required that liquor not be sold after 1:30 a.m. but not in this instance. He believed that with the requirements in place, 1:30 a.m. was an appropriate time limit. He said that the Sheriff's Department would report back to Council if they had any concerns or issues with events held at the center. Jennifer Griffin believed this was an opportunity for successful businesses at the Oaks which was good for the community. She supported the 1:30 deadline. November 16, 2010 Cupertino City Council Page 7 Ted Hatten, Regional Property Manager for Avery Construction, stated that they agreed with the Planning Commission's recommendations and the permit modifications. Action: Moved by Wong and seconded by Mahoney to approve the modification as requested. The motion carried unanimously. 23. Subject: Parking Ordinance Amendment Recommended Action: Approve recommended amendments to the. Parking Ordinance and conduct the first reading of Ordinance No. 10 -2071 Description: Application: MCA - 2010 -05; Applicant: City of Cupertino; Location: Citywide; Application Summary: Municipal Code Amendment to Chapter 19.100 (Parking Ordinance) of the Cupertino Municipal Code to clarify language regarding storage and parking of vehicles. An ordinance of the City Council of the City of Cupertino amending Chapter 19.100 (Parking Regulations) of the Cupertino Municipal Code with associated amendments to Chapter 19.08 (Definitions Ordinance) related to clarifying language regarding storage and parking of heavy equipment, aircraft and planned non - operational vehicles in residential zones. Action: Under "Postponements," Vice -Mayor Gilbert Wong moved to continue item No. 23, amendments to the parking ordinance, to a later date so that the Council members could have more time to read the staff report. Mahoney seconded and the motion carried unanimously. 24. Subject: Community Development Block Grant (CDBG) 2010 Annual Plan Amendment Recommended Action: Consider adopting Resolution No. 10 -213 amending the 2010 CDBG Annual Plan to reallocate $21,130 in CDBG funds from West Valley Community Service's Rotating Shelter Program to the West Valley Community Service's Haven to Home Program and authorizing the City Manager to submit tle amended plan to the Department of Housing and Urban Development (HUD). Discussion: Senior Planner Vera Gil reported that the West Valley Community Services Rotating Shelter Program was no longer funded and was now providing support services but not housing. Staff requested that Council authorize reallocating these CDBG funds to West Valley Community Services' Haven to Horne Program. The funds could be exchanged between these similar programs but if other projects were considered a request for proposals would be needed as well as a public hearing. Jennifer Griffin commented that the homeless situation was a serious one and she was sorry to hear that the Rotating Shelter Program was no longer funded. She agreed that it was a good idea to transfer these funds to a similar program to help the homeless. Action: Moved by Wong and seconded by Mahoney to adopt Resolution No. 10 -213 amending the 2010 CDBG Annual Plan to reallocate $21,130 in CDBG funds from West Valley Community Service's Rotating Shelter Program to the West Valley Community Service's Haven to Home Program and authorizing the City Manager to submit the amended plan to the Department of Housing and Urban Development (HUD). November 16, 2010 Cupertino City Council Page 8 UNFINISHED BUSINESS 25. Subject: Report on the status of the Solar Power Purchase Agreement (SPPA) project (continued from November 1). Recommended Action: Receive report and provide direction to staff. Discussion: Public Environmental Affairs Director Rick Kitson reported on the competitive request for proposals process and selection of vendors. Environmental Affairs Coordinator Erin Cooke explained that a power purchase agreement was a financial arrangement whereby a third -party vendor constructs, owns, operates and maintains the photovoltaic system, and the host customer (Cupertino) agrees to site a system on its property and to purchase the electric output for a predetermined price and period. This project included collaboration among nine agencies representing 70 sites with the potential to install 14MW of solar power. The benefits of such collaboration included group purchasing benefits, favorable terms and conditions (4% annual increases for a 20 year period with a buyout option after 6 years at fair market value), and independent consultant expertise. The city and all participating agencies will be supported by solar consultant Optony to ensure industry best practices, to verify system performances and to serve as a liaison with PG &E to ensure that rate schedules have been adjusted. Ben Foster, Vice President of Operations, Optony, commented on two available options. Option one was virtual net metering, AB2466, where one aggregated site could be used to offset usage on other sites. The second option was a CSI rebate which had a cost reduction up front. Excess energy at a certain site was put back on the grid for a fixed price. He recommended the second option. Jennifer Griffin supported solar power but was concerned about cutting down mature trees. She also raised the issues of seismic safety and water runoff in the parking lot. She recommended putting the panels on the library roof Ben Foster, Vice President of Operations — Optony, responded to Council questions and said that the warranty was for 20 years. High efficiency cells may be an option but could potentially increase the cost. The vendor could also be asked to provide a proposal for a direct purchase, which would have a better return on investment than a power purchase agreement, but there would be up front capital costs and performance risk. In a power purchase agreement after 20 years an appraisal would be made by a third party. If the city wanted to purchase they could, but if not the vendor would take back the system and restore the property to its original state. Concerning the rates, he stated that in the power purchase agreement the vendor was paid for energy produced at a rate lower than the city was paying to PG &E which resulted in a lower PG &E bill. This resulted in a net monthly savings to the city. Mr. Foster also commented that if the number of panels was reduced for this project the savings to the city would be less. While it might be technically feasible it was not economically feasible. Public Environmental Affairs Director Rick Kitson any tree removed would be replaced with two. He noted that this expansion was within the existing grade of the land and there was no November 16, 2010 Cupertino City Council Page 9 negative impact on parking. Mr. Kitson stated that staff believed this option of a power purchase agreement was beneficial to the city but it would fundamentally change the look of the parking lot at the Civic Center. For that reason, staff asked for direction from the Council. City Manager Dave Knapp noted that the library proponents made the decision that they would rather have a larger library than a solar library. In addition it would cost more to put the panels on the library roof. Action: Santoro moved and Mahoney seconded to send this item to the Planning Commission for their December 14 meeting and to bring it back to Council for their December 21 meeting. Council asked staff to provide a cost analysis of using high efficiency panels and to provide less visible sites on which to put the panels. In addition Council asked for a separate analysis for the corporation yard and asked staff to address issues raised by Council during the meeting. Motion carried unanimously. NEW BUSINESS 26. Subject: Adoption of 2010 California Building Code Standards Recommended Action: Adopt 2010 California Building Code Standards and conduct the first reading of Ordinance No. 10 -2072 Description: An Ordinance of the City Council, of the City of Cupertino amending Chapter 16 of the Cupertino Municipal Code and adopting the 2010 California Building Code Standards with appendices and amendments thereto. Discussion: Senior Building Official Albert Salvador said that staff recommended that Council adopt the new 2010 California Code of Regulations as mandated by the State of California, adopt the local code amendments developed by the local Tri- chapter Uniform Code Committee, and adopt local fire code amendments developed by the Santa Clara County Fire Marshals Association and endorsed by the Santa Clara County Fire Chiefs Association. The 2010 California Codes included building, residential, electrical, plumbing, mechanical, fire, energy and green building standards. The fire code amendments dealt mainly with commercial and residential sprinklers. The Deputy Fire Chief of the Santa Clara County Fire Department commented on the issue of sprinklers, particularly the requirement that all new single family residences were required to have sprinklers. Community Development Director Aarti Shrivastava stated, in response to a Council inquiry, that it was possible to attain a 20% reduction in water usage as required in the Green Building Standards Code. There were buildings in the city that had achieved this goal. Councilmember Santoro referred to the exception listed in Section 903.2 which stated that `A one -time addition to an existing building that does not total more than 1,000 square feet of building area'. Staff will clarify this language to reflect that this is not a one -time use but rather additions up to 1,000 square feet. November 16, 2010 Cupertino City Council Page 10 Action: Mahoney moved and Chang seconded to adopt the 2010 California Building Code Standards and conduct the first reading of Ordinance No. 10 -2072. Ayes: Chang, Mahoney, Santoro and Wang; Noes: None; Absent: Wong. 27. Subject: Possible change to the City Council meeting schedule Recommended Action: Consider cancelling the December 21 meeting. Description: A decision is necessary at this time in order to accommodate newspaper deadlines for public hearing notices. Action: City Council concurred to hold a regular adjourned meeting on Monday, November 29, and not to cancel any of the regularly scheduled meetings. ORDINANCES - None STAFF REPORTS - None COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. Councilmember Mahoney said Veterans' Day Ceremony at Memorial Park was very well done. Mayor Wang noted that she attended the Santa Clara County Veterans' Parade. ADJOURNMENT At 12:05 a.m., the meeting was adjourned. • Kimberly Smith,/City Clerk 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.