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CC 02-01-2011 CUPERTINO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular and Special Meetings Tuesday, February 1, 2011 CITY COUNCIL SPECIAL MEETING CALL TO ORDER At 6:40 p.m. Mayor Gilbert Wong called the special meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California. ROLL CALL Present: Mayor Gilbert Wong, Vice -Mayor Mark Santoro, and Council members Barry Chang, Orrin Mahoney, and Kris Wang (6:50). Absent: none. CLOSED SESSION 1. Subject: Conference with legal counsel — Initiation of Litigation (Gov't Code 54956.9(c)) — One case Council recessed to a closed session at 6:40 p.m., and reconvened in open session at 7:45 p.m. Mayor Gilbert Wong reported that the City Council met in closed session, received a briefing from legal counsel, and gave direction. No action was taken. CITY COUNCIL REGULAR MEETING PLEDGE OF ALLEGIANCE At 7:45 p.m. Mayor Gilbert Wong 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 Gilbert Wong, Vice -Mayor Mark Santoro, and Council members Barry Chang, Orrin Mahoney, and Kris Wang. Absent: none. February 1, 2011 Cupertino City Council Page 2 CLOSED SESSION — None. CEREMONIAL MATTERS — PRESENTATIONS 1. Subject: Proclamation recognizing the Santa Clara County Library, the Friends of the Cupertino Library, and the Cupertino Library Foundation for their support of the 9th Annual Silicon Valley Reads Recommended Action: Present proclamation Mayor Wong noted that the because of the late start time of the meeting, the recipients could not stay, so the proclamation will be presented at the next Council meeting. Mayor Wong reminded everyone about the upcoming event for the Library's 9 Annual Silicon Valley Reads program. POSTPONEMENTS Staff requested a continuation of item No. 19, a Petition for Reconsideration of the City Council's November 29, 2010 decision to deny an appeal of a Director's Approval for a personal wireless service facility at 11371 Bubb Road, (T- Mobile) because the appellant had sent an email indicating that he had not had time to review the applicant's information. City Attorney Carol Korade explained that a postponement is not an opportunity for either party to continue the item multiple times. She recommended a postponement so a complete hearing could take place at one time, but that anyone present who wished to speak on the matter should do so tonight. Shaul Berger, the appellant, indicated that he did not want a postponement and that he never asked for one. He stated that he originally did not think he would have time to analyze the new information, but did after all have time to review what information he received. Korade noted that if Mr. Berger wanted to proceed, he would have to retract his email from yesterday in which he stated that he did not think he had enough time to respond. Mr. Berger stated that he could proceed tonight based on what he knows and was made available to him. Korade reported that she had talked to the applicant who indicated that they could adequately address the item unless council requested substantive information about electromagnetic fields (EMF). Willie Leu stated he provides technical support for Mr. Berger and was ready to proceed. Applicant Dayna Aguirre, of Sutro Consulting representing T- Mobile, indicated that they were originally prepared to proceed, but had sent their team home upon receiving notice of the recommendation to postpone. She noted that they were willing to move forward but that all the February 1, 2011 Cupertino City Council Page 3 experts to speak about the EMF issues, radio frequency, and coverage maps were not present. She reserved the right to request a continuance if technical expertise was needed. Mahoney moved and Wang seconded to continue the item to March 15. The applicant agreed to the continuance. The motion carried with Chang voting no. WRITTEN COMMUNICATIONS City Clerk Kimberly Smith distributed the following written communications: • Page 2 of the minutes of the Special Meeting of January 4, with typographical corrections • Page 6 and 8 of the minutes of the Regular meeting of January 4, with typographical corrections For item No. 18, Green Building Ordinance: • A corrected first page of the staff report (pages 280 and 281 of the packet) • A copy of the staff PowerPoint presentation • Email from Myron Crawford dated January 29, 2011 opposed to the Green Building Ordinance • Email from the Building Industry of the Bay Area dated January 31 requesting continuance to allow stakeholder participation • Letter dated Feb. 1 from the Silicon Valley Association of Realtors requesting another round of focus groups and stakeholder meetings For Item No. 19, T- Mobile wireless facility on Bubb Road • Emails from Shaul Berger dated January 27 and 31 remarking upon radio frequency calculations provided by T- Mobile • A letter dated Jan 27, 2011 from Mackenzie & Albritton LLP requesting Council to reject the Petition for Reconsideration • A letter dated January 31 from Hammett & Edison, Consulting Engineers, stating that there is no discrepancy between the T- Mobi;[e calculations and Mr. Berger's analysis after making one correction to the calculations For Item No. 20, Scenic Circle Access • Email from Rhoda Fry objecting to the process taken on this project • A memorandum from Public Works Director Timm Borden to City Council in response to an email from Rhoda Fry February 1, 2011 Cupertino City Council Page 4 • Emails from Jaya Krishnamoorthy, Anne Ng, and Suman Cherukuri, Judy Wilson, Sonya Liang, Patricia Rod, Carol Lim, Rune Jensen, Leon Burda, Alla Burda, Jenna Woodul, Janet Trankle,Atul Tambe, Gerard Pallipuram, Lola Kashyap, Sally Nettleton, Tom Scannell, Kumuran Sangareddi, and Yi Huang in support of staff's recommendation to open Scenic Circle access • Email from Susan Sievert asking for additional public dialogue and making suggestions for the golf course; • Email from Carol Stanek in favor of opening Scenic Circle access to the trail and commenting on the environmental review, costs, and the winter schedule ORAL COMMUNICATIONS - None CONSENT CALENDAR Mahoney moved and Wang seconded to approve the items on the Consent Calendar as recommended, with the exception of Item Nos. 9 and 11, which were pulled for discussion. Ayes: Chang, Mahoney, Santoro, Wang, and Wong. Noes: None. Abstain: None. 2. Subject: January 4 City Council minutes, special meeting Recommended Action: Approve minutes as amended by the City Clerk 3. Subject: January 4 City Council minutes, regular meeting Recommended Action: Approve minutes as amended by the City Clerk 4. Subject: Accounts Payable for period ending January 7, 2011 Recommended Action: Adopt Resolution No.11 -008 5. Subject: Accounts Payable for period ending January 14, 2011 Recommended Action: Adopt Resolution No. 11 -009 6. Subject: Accounts Payable for period ending January 21 2011 Recommended Action: Adopt Resolution No.11 -010 7. Subject: Payroll for period ending January 7, 2011 Recommended Action: Adopt Resolution No.11 -011 8. Subject: Payroll for period ending January 21, 2011 Recommended Action: Adopt Resolution No. 11 -012 10. Subject: Add Annex to Disaster Plan for care of animals Recommended Action: Approve as an Annex to the Cupertino Emergency Plan 12. Subject: Quitclaim Deed and Authorization for Und :rground Water Rights, Sanjoy K. Poddar and Sadia Rupa Poddar, 10145 Camino Vista Dri 'e Recommended Action: Adopt Resolution No. 11 -014 February 1, 2011 Cupertino City Council Page 5 13. Subject: Improvement Agreement, Sanjoy K. Poddar and Sadia Rupa Poddar, 10145 Camino Vista Drive Recommended Action: Adopt Resolution No. 11 -015 14. Subject: Alcoholic Beverage License, Cupertino Liquors, 7335 Bollinger Road, Suite F (near Red Crane) Recommended Action: Approve application for Off Sale General 15. Subject: Alcoholic Beverage License, Kong Tofu & BBQ, 19626 Stevens Creek Boulevard (Marketplace, former Wahoo's) Recommended Action: Approve application for On -Sale Beer and Wine for Bona Fide Public Eating Place 16. Subject: Alcoholic Beverage License, Rite Aid 5967, 20580 East Homestead Road (PW Market Shopping Center) Recommended Action: Approve application for Off Sale General 17. Subject: Alcoholic Beverage License, Village Falafel, 20010 Stevens Creek Boulevard (SWC at Blaney) Recommended Action: Approve application for On -Sale Beer and Wine for a Bona Fide Public Eating Place ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 9. Subject: Approve destruction of records from the City Clerk and Parks & Recreation (Quinlan and Senior Center) departments Recommended Action: Adopt Resolution No. 11 -013 Council member Santoro asked for additional detail on records related to Scenic Circle and the Blue Pheasant Restaurant. Parks and Recreation Director Mark Linder stated that he had reviewed both of the files and recommended destruction of the obsolete Blue Pheasant document since it had been superseded with a more current contract. He recommended retaining the Scenic Circle materials so that the new Public Works Director can review them. Santoro moved and Mahoney seconded to adopt Resolution No. 11 -013 to approve destruction of records as described in the attachment, with the exception of the file about Scenic Circle. The motion carried unanimously 11. Subject: Endorse council opposition to Governor Brown's budget proposal to eliminate redevelopment agencies Recommended Action: Accept Legislative Committee recommendation Council member Wang expressed concern about the process for bringing Legislative Review Committee recommendations to Council. She noted that her understanding was that bills come down from the State to the Legislative Action Committee or City Association first, and are then forwarded to Council with a recommended position. February 1, 2011 Cupertino City Council Page 6 Council member Mahoney stated that Council had received items from other agencies in the past and that they were not violating any process. Mayor Wong indicated that items need to be dealt with on a case by case basis. Some items are time sensitive and cannot wait for review by committees. He suggested that Wang work offline with other Council members who may want to discuss the process at another meeting. Vice Mayor Santoro said he did not wish to tell people how to vote on issues, but acknowledged that items have come to the Committee for review both with and without Council knowledge in the past. Council member Chang expressed concern regarding the language of the proposal, but said he did not have any issue with the process. Mahoney moved to endorse Council opposition to the Governor's budget proposal to eliminate redevelopment agencies. Wong seconded for purposes of discussion. Wong felt that supporting the opposition was in the best interest of the City and urged fellow Council members to support the recommendation. Chang expressed concern regarding the language. The motion failed 3 -2, with Wong and Mahoney voting yes, so the Council will take no position on Governor Brown's budget proposal. PUBLIC HEARINGS 18. Subject: Green Building Ordinance (Continued from Jan 18) Recommended Action: Conduct first reading of Ordinance No. 11 -2074 and adopt Resolution No. 11 -016 Description: Application: MCA - 2010 -04; Applicant: City of Cupertino; Location: Citywide; Application Summary: Municipal Code Amendment to adopt a Green Building Ordinance; "An Ordinance of the City Council of the City of Cupertino establishing Chapter 19.78 to create a Green Building Ordinance" The City Clerk distributed the following written communications: • A corrected first page of the staff report (pages 280 and 281 of the packet) • A copy of the staff PowerPoint presentation • Email from Myron Crawford dated January 29, 2011, opposed to the Green Building Ordinance • Email from the Building Industry of the Bay Area dated January 31 requesting continuance to allow more stakeholder participation Senior Planner Aki Honda Snelling reviewed the staff report. February 1, 2011 Cupertino City Council Page 7 Jennifer Griffin said she was pleased with the City's effort on the ordinance, but was opposed to giving incentives to developers for lead certification, off - street parking, and story poles. Myron Crawford, Berg and Berg, said he was opposed to the ordinance. He stated that he believed code development should be dealt with by the State and code committees. He suggested that the City follow the CAL Green standards for now and not add additional costs to developers. Adam Montgomery spoke on behalf of Silicon. Valley Association of Realtors and said he was opposed to the ordinance. He noted that renovations were not defined, the 85 percent standard was not justified, and the fees appear to be a penalty which could cause a potential down zoning of property. . Kevin McClelland, spoke on behalf of the Cupertino Chamber of Commerce. Mr. McClelland requested that a review of the issues in the use of locally produced materials be done. He also noted that there should be more clarity around the renovation as issues and reviews should apply only to the new work. Mark Burns, local real estate agent and member of SILVAR, spoke in opposition to the draft ordinance. He stated that it was hastily prepared, far more aggressive than what was talked about during the focus group meetings, and 85 points was too high. He suggested taking a cautious approach, follow CAL Green standards, and that a new draft go back to the focus groups. Ricky Shen, new homeowner in Cupertino, stated that the fees and requirements of the ordinance would make a renovation to his home impossible to complete. David Kaneda, former Planning commissioner, noted that the issue of uniformity was a concern and that most cities want to have similar ordinances to maintain a balance in developments. He recommended starting with something that could be updated and revisited in the future as needed. Walker Wells clarified that the Santa Clara City Association had put together Phase II as a template for private sector development, but cities go through an internal process to develop requirements for their own city. He also noted that public workshops were held, and in the second one, they went item by item through the proposed draft and talked about options related to stringency, general approach, and outreach. The Council members offered their comments: Mahoney stated that he was opposed to adding incentives. Wang was concerned that the focus group only accounted for a small percentage of the draft, the cost factor was too high, and incentives were too costly. She also supported educational workshops for the public. February 1, 2011 Cupertino City Council Page 8 Community Development Director Aarti Shrivastava responded that the focus groups had been informed of every meeting and staff also held workshops with them. She noted that staff could offer a draft closer to Phase II for Council and felt that would be productive. Chang expressed concern that the cost may be too high without actually reducing energy costs. Wong felt that 85 points was too high of a requirement; the second deposit was also too high; and multi - family units one through four should be treated the same, but larger complexes could be higher. He also preferred having the draft stay at the council level and asked that Mr. Walker provide a brief presentation with cost examples. Walker Wells presented a brief presentation showing examples of projected costs, future energy savings, and investment repayment. He noted that there were benefits such as reduction in energy and water costs, increased durability, more valuable working and living environments. Soft costs are registration fee, certification fee, consultant or rate fee, extra design time, and building commissioning (LEED). Hard costs are material and equipment upgrade costs. Extra costs for energy measures would be about $40,000 for a multi - family home and about $4,000 for a single family home. There would be about a 20 -35 year payback with respect to energy savings for a single family home for $10,000 of extra costs. Mahoney Wang moved and Wang seconded to continue this item to a future meeting to incorporate what was discussed tonight at this public hearing. Shrivastava said staff would also explore what other cities are doing to incentivize green building practices in existing structures. Wong requested a single family residential cost estimate of a remodel in addition to the green ordinance, including fees, consultants, and deposit. He also asked for an example for a multi- family unit and a comparison of single family to multi - family, such as an 8 or 9 -unit subdivision, as well as for office and commercial uses, to include the deposit, costs, and certification. He asked to see something more Cupertino- centric if possible. Santoro suggested lowering points to 50 on pages 283 and 284; deleting renovations on the second section; changing the square footage amount to less than 10,000 for small, 10,000- 50,000 for mid -size, and greater than 50,000 for large on page 284; delete the $1 million evaluation for square footage on page 285; and reduce fees by half on page 286. He also preferred to see an expert involved early on in the preliminary plans to save money and time and preferred incentives such as expediting plan checking and floor area ratio (FAR), but opposed the story poles and parking spaces. Wong, Wang, and Santoro concurred that they would like to have a hard copy of the updated draft go back to the Chamber of Commerce, the focus groups, and all stakeholders as well as anyone who spoke at the meeting tonight, to obtain their comments. The motion to continue carried 3 -2 with Chang and Santoro voting no. February 1, 2011 Cupertino City Council Page 9 UNFINISHED BUSINESS — None NEW BUSINESS 19. Subject: Petition for reconsideration of the City Council's November 29, 2010 decision to deny an appeal of a Director's Approval for a personal wireless service facility at 1 1371 Bubb Road Recommended Action: Conduct a hearing on a petition for reconsideration regarding the City Council's decision on the wireless communications facility at 11371 Bubb Road; adopt Resolution No. 11 -017, denying the Petition of Shaul Berger seeking Council reconsideration of its decision to approve the wireless communications facility at 11371 Bubb Road Description: Application: DIR- 2010 -28 Appeal; Applicant: Dayna Aguirre (for T- Mobile); Appellant/Petitioner: Shaul Berger; Location: 11371 Bubb Road, APN 356 -23 -047; Application Summary: Petition for reconsideration of the City Council's November 29, 2010 decision to deny an appeal of a Director's Approval for 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 The City Clerk distributed the following written communications: • Emails from Shaul Berger dated January 27 and 31 remarking upon radio frequency calculations provided by T- Mobile • A letter dated Jan 27, 2011 from Mackenzie & Albritton LLP requesting Council to reject the Petition for Reconsideration • A letter dated January 31 from from Hammett & Edison, Consulting Engineers, stating that there is no discrepancy between the T- Mobile calculations and Mr. Berger's analysis after making one correction to the calculations Action: In the "Postponements" section, the City Council voted 4 -1, with Chang voting no, to continue this item to March 15. Council recessed from 11:00 p.m. to 11:12 p.m. 20. Subject: Scenic Circle Access Project Recommended Action: 1. Adopt the mitigated negative declaration CE,QA documents; and, 2. Authorize the winter schedule alternative as depicted in the base bid; and, 3. Authorize the inclusion of Add Alternates 1 and 2 for a total of $10,940; and, 4. Authorize the current budget of $235,000 to be adjusted upward by $125,000 for a total budget of $360,000 using excess funds from the Blackberry Farm Infrastructure Upgrades project; and, 5. Authorize the City Manager to Execute a contract with Pavex, Inc. for the construction of Scenic Circle Access not to exceed $159,735, plus the Add Alternates, if approved; and, 6. Authorize the expenditure of up to $30.000 for change orders for unforeseen site conditions and construction contingency The City Clerk distributed the following written communications: February 1, 2011 Cupertino City Council Page 10 • Email from Rhoda Fry objecting to the process taken on this project • A memorandum from Public Works Director Timm Borden to City Council in response to an email from Rhoda Fry • Emails from Jaya Krishnamoorthy, Anne Ng, and Suman Cherukuri, Judy Wilson, Sonya Liang, Patricia Rod, Carol Lim, Rune Jensen, Leon Burda, Alla Burda, Jenna Woodul, Janet Trankle,Atul Tambe, Gerard Pallipuram, Lola Kashyap, Sally Nettleton, Tom Scannell, Kumuran Sangareddi, and Yi Huang in support of staff's recommendation to open Scenic Circle access • Email from Susan Sievert asking for additional public dialogue and making suggestions for the golf course; • Email from Carol Stanek in favor of opening Scenic Circle access to the trail and commenting on the environmental review, costs, and the winter schedule Public Works Director Timm Borden reviewed the staff report and answered questions regarding removal of the old gate, costs associated with the winter schedule, design, and type of funding to be used. He also explained the bidding process as it related to the Blackberry Farm Infrastructure Upgrade Project. He noted that bids for both projects were advertised at the same time and that one bidder purchased plans and specs for both projects, but was not notified of the substantial addendum which included a retaining wall. He stated that due to the importance of both projects and the conflicts associated with the Blackberry Farm summer schedule a decision was made to postpone bids until later in summer. Anne Ng commended the staff for coming up with a plan which accommodates the neighbors. Carol Stanek encouraged Council to move ahead with the project, take necessary precautions to protect any birds that may be nesting during construction, and to open the access before school begins. Mahoney moved and Wang seconded to adopt item No. 1, the mitigated negative declaration CEQA documents. The motion carried unanimously. Mahoney moved and Santoro seconded to adopt item Nos. 2 through 6. Wang offered a friendly amendment to fund the project directly from the general fund and next year when there is a surplus to pay that amount back, to reduce the budget from one project (Blackberry Farm Infrastructure Upgrade Project) and increase the other one at the same time. The Public Works Director explained that the Infrastructure Upgrade Project has more than sufficient funds to provide the needed funds for the Scenic Circle Access Project. The Council members discussed a number of funding options. Mahoney and Wong agreed to accept the friendly amendment to adopt item Nos. 2 -6, amending item No. 4 to read "Authorize the current budget of $235,000 to be adjusted February 1, 2011 Cupertino City Council Page 11 upward by $125,000 for a total budget of $360,000 using funds from the Capital Improvement Projects budget. The motion carried unanimously. 21. Subject: Blackberry Farm Infrastructure Upgrade Project Recommended Action: Authorize the Director of Public Works to reject all bids and re -bid the project Mahoney moved and Santoro seconded to reject all bids and re -bid the project. The motion carried unanimously. ORDINANCES - None STAFF REPORTS- None COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 12:10 a.m. on Wednesday, February 2, the regular meeting was adjourned to February 15, 5:00 p.m., for a closed session. INV Kimberly Smit " ' y 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.