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May 1 searchable packet Table of Contents Agenda4 Present proclamations to Organization of Special Needs Families 2011 President Award Recipients No written materials11 Present proclamations for local students who have been selected to attend global finals of Destination Imagination, the largest creative thinking and problem solving competition in the world No written materials12 Accounts Payable for period ending April 13, 2012 Draft Resolution13 Accounts Payable for period ending April 20, 2012 Draft Resolution26 Treasurer's Investment and Budget Report for Quarter Ending March 2012 Staff Report38 A. Investment Portfolio40 B. Investments by Type, Rate of Return, and Compliance Charts42 C. PARS Trust Report44 D. General Fund Budget Report46 E. Expenditure and Revenue Charts47 Set budget study session for Wednesday, May 30 beginning at 1:00 p.m. No written materials52 2011-2012 City Council Work Program Staff Report53 Work Program54 Amend Cupertino's records retention schedule to add specific record types and extend timelines on certain record types Staff report91 Draft resolution93 Audit Committee unscheduled vacancy Resignation email95 Declare brush to be a public nuisance and set hearing for June 4 for objections to proposed removal Draft resolution96 Adopt resolution endorsing My Vote Our Future Project Draft resolution97 Appointment of City of Cupertino representative to the Santa Clara County Valley Transportation Authority (VTA) Bicycle & Pedestrian Advisory Committee (BPAC) Staff Report98 Municipal Improvements, 21835 Lomita Avenue Staff Report99 1 A. Map100 A Resolution of the City of Cupertino City Council Authorizing a Agreement Between the City of Cupertino and the City of Sunnyvale Respecting the Operation and Sharing of Costs Pertaining to Traffic Signals in the Vicinity of Homestead Road Staff Report101 A. Draft resolution103 B. Agreement104 Collection of the AB 939 Implementation and Household Hazardous Waste Fee Staff Report111 A. Draft resolution authorizing agreement for AB 939113 B. Draft resolution authorizing agreement for household hazardous waste collection114 C. Agreement for AB 939115 D. Agreement for household hazardous waste collection128 Fee waiver request from the League of Women Voters of Cupertino-Sunnyvale Staff Report156 Attachment A157 Postpone vacation of Finch Ave between Stevens Creek Boulevard and Vallco Parkway No written materials158 Community Development Block Grant (CDBG) funds, Human Service grants and FY 2012 Annual Action Plan Staff Report159 Attachment A: Draft resolution160 Attachment B: April 3rd Staff Report with Attachments161 Amendments to Cupertino Municipal Code 2.28: 1) removing the residency requirement for the city manager position and, 2) amending the number of City Council votes required to remove the city manager from a 4/5 vote to a majority Staff report267 Draft ordinance269 Ordinance amending Chapter 6.24 (Garbage and Recycling Collection and Disposal) of the Cupertino Municipal Code to address Mandatory Recycling requirements (AB 341) for multi- family and commercial business recycling Staff Report271 A. Draft Ordinance Chapter 6.24 - Redline Version273 B. Draft Ordinance Chapter 6.24 - Clean280 Revise Chapter 9.06 of the Municipal Code, entitled, Massage Establishments and Services to conform to changes in state law Staff report287 Redline draft ordinance289 McClellan Ranch Master Plan 2012 Update and Naming of McClellan Ranch Staff Report305 2 A. McClellan Ranch Master Plan 2012 Update, May 1, 2012308 B. Appendix G, Potential CIP Projects by Category,? McClellan Ranch Master Plan 2012317 C. Resolution approving the name change of McClellan Ranch Park to McClellan Ranch319 D. Resolution approving the name of McClellan Ranch West for the property commonly known as the Simms Property320 3 AGENDA CUPERTINO CITY COUNCIL ~SPECIALMEETING SUCCESSOR TO THEREDEVELOPMENT AGENCY ~ REGULAR MEETING 10350 Torre Avenue, Community Hall Council Chamber Tuesday, May 1, 2012 5:00PM CITY COUNCIL MEETING ROLL CALL –5:00 PM CLOSED SESSION 1.Subject:Conference with Labor Negotiator(Government Code 54957.6); Agency negotiator: Carol Atwood; Employee organization: OE3; CEA PLEDGE OF ALLEGIANCE –6:45 PM ROLL CALL CEREMONIAL MATTERS ANDPRESENTATIONS 2.Subject:Present proclamations to Organization of Special Needs Families 2011 President Award Recipients Recommended Action:Present proclamations No written materials Page:No written materials in packet 3.Subject:Present proclamations for local students who have been selected to attend global finals of Destination Imagination, the largest creative thinking and problem solving competition in the world Recommended Action:Present proclamations No written materials Page:No written materials in packet POSTPONEMENTS –Postpone item 18 to May 15 4 Tuesday, May 1, 2012Cupertino City Council Successor to theRedevelopment Agency ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the council on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the council from making any decisions with respect to a matter not listed on the agenda. CONSENT CALENDAR Unless there are separate discussions and/or actions requested by council, staff or a member of the public, it is requested that items under the Consent Calendar be acted on simultaneously. 4.Subject:Accounts Payable for period ending April 13, 2012 Recommended Action:Adopt Resolution No. 12-037 Draft Resolution Page: 5.Subject:Accounts Payable for period ending April 20, 2012 Recommended Action:Adopt Resolution No. 12-038 Draft Resolution Page: 6.Subject:Treasurer's Investment and Budget Report for Quarter Ending March 2012 Recommended Action:Accept the report Staff Report A. Investment Portfolio B. Investments by Type, Rate of Return, and Compliance Charts C. PARS Trust Report D. General Fund Budget Report E. Expenditure and Revenue Charts Page: 7.Subject:Set budget study session for Wednesday, May 30 beginning at 1:00 p.m. Recommended Action:Set budget study session No written materials Page:No written materials in packet 8.Subject:2011-2012 City Council Work Program Recommended Action:Approve the final work program Staff Report Work Program Page: 5 Tuesday, May 1, 2012Cupertino City Council Successor to theRedevelopment Agency 9.Subject:Amend Cupertino's records retention schedule to add specific record types and extend timelines on certain record types Recommended Action:Adopt Resolution No. 12-039 Description:Includes amendments to records in City Clerk, Code Enforcement, City Manager, and Planning departments Staff report Draft resolution Page: 10.Subject:Audit Committee unscheduled vacancy Recommended Action:Accept resignation of Stan Stemkoski, set application deadline date for May 7 and schedule interview date for May 15 beginning at 5:30 p.m. Resignation email Page: 11.Subject:Declare brush to be a public nuisance and set hearing for June 4 for objections to proposed removal Recommended Action:Adopt Resolution No. 12-040 Draft resolution Page: 12.Subject:Adopt resolution endorsing My Vote Our Future Project Recommended Action:Adopt Resolution No. 12-041 Description:As recommended by the Legislative Committee, it is recommended that the City Council adopt a resolution supporting My Vote Our Future. This program is a voter outreach and education project coordinated by De Anza College/Parents for Great Education; Catholic Charities of Santa Clara; Services, Immigrant Rights and Education Network/Asian Law Alliance; and Working Partnerships. Funding has been provided by the Santa Clara County Registrar of Voters (ROV) Draft resolution Page: 13.Subject:Appointment of City of Cupertino representative to the Santa Clara County Valley Transportation Authority (VTA) Bicycle & Pedestrian Advisory Committee (BPAC) Recommended Action:Accept the Bicycle Pedestrian Commission (BPC) recommendation to reappoint James Wiant to the VTA BPAC for a two-year term beginning July 1, 2012 Staff Report Page: 14.Subject:Municipal Improvements, 21835 Lomita Avenue Recommended Action:Accept Municipal Improvements Description:The work included sidewalk, driveway approach and curb & gutter improvements in the City right-of-way Staff Report A. Map Page: 6 Tuesday, May 1, 2012Cupertino City Council Successor to theRedevelopment Agency 15.Subject:Authorize agreement between City of Cupertino and City of Sunnyvale respecting the operation and sharing of costs pertaining to traffic signals in the vicinity of Homestead Road Recommended Action:Adopt Resolution No. 12-042 Staff Report A. Draft resolution B. Agreement Page: 16.Subject:Collection of the AB 939 Implementation and Household Hazardous Waste Fee Recommended Action: a. Adopt Resolution No. 12-043, authorizing execution of the Agreement for Countywide AB 939 Implementation Fee for FY 2012-2015; b. Adopt Resolution No. 12-044, authorizing execution of the Agreement for Countywide Household Hazardous Waste Collection Program for FY 2012-2015 Staff Report A. Draft resolution authorizing agreement for AB 939 B. Draft resolution authorizing agreement for household hazardous waste collection C. Agreement for AB 939 D. Agreement for household hazardous waste collection Page: 17.Subject:Fee waiver request from the League of Women Votersof Cupertino-Sunnyvale Recommended Action:Approve fee waiver Staff Report Attachment A Page: SECOND READING OF ORDINANCES PUBLIC HEARINGS 18.Subject:Postpone vacation of Finch Ave between Stevens Creek Boulevard and Vallco Parkway Recommended Action:Postpone to May 15, 2012 No written materials Page:No written materials in packet 7 Tuesday, May 1, 2012Cupertino City Council Successor to theRedevelopment Agency 19.Subject:Community Development Block Grant (CDBG) funds, Human Service grants and FY 2012 Annual Action Plan Recommended Action:Conduct Public Hearing; and 1. Adopt ResolutionNo. 12-045 approving the allocations for the use of the 2012-13 CDBG program and human service grant as detailed in Attachment B; and 2. Approve the FY 2012-13 Annual Action Plan (Attachment B) as required by the Federal Department of Housing and Urban Development (HUD) Description:This is the second of two required public hearings regarding the use of 2012-13 CDBGfunds, Human Service grants and the FY 2012 Annual Action Plan Staff Report Attachment A: Draft resolution Attachment B: April 3rd Staff Report with Attachments Page: ORDINANCESAND ACTION ITEMS 20.Subject:Amendments to Cupertino Municipal Code 2.28: 1) removing the residency requirement for the city manager position and, 2) amending the number of City Council votes required to remove the city manager from a 4/5 vote to a majority Recommended Action:Conduct the first reading of Ordinance No. 12-2093: "An Ordinance of the City Council of the City of Cupertino amending Chapter 2.28 of the Cupertino Municipal Code regarding the City Manager position" Staff report Draft ordinance Page: 21.Subject:Ordinance amending Chapter 6.24 (Garbage and Recycling Collection and Disposal) of the Cupertino Municipal Code to address “Mandatory Recycling” requirements (AB 341) for multi-family and commercial business recycling Recommended Action:Conduct first reading of Ordinance No. 12-2094: "An Ordinance of the City Council of the City of Cupertino amending Chapter 6.24 (Garbage and Recycling Collection and Disposal) of the Cupertino Municipal Code to address “Mandatory Recycling” requirements (AB 341) for multi-family and commercial business recycling adding Section 6.24.035 (Mandatory Recycling) and amending Section 6.24.020 (Definitions) and 6.24.300 (Unauthorized Garbage Collection) Staff Report A. Draft Ordinance Chapter 6.24 -Redline Version B. Draft Ordinance Chapter 6.24 -Clean Page: 8 Tuesday, May 1, 2012Cupertino City Council Successor to theRedevelopment Agency 22.Subject:Revise Chapter 9.06 of the Municipal Code, entitled, “Massage Establishments and Services” to conform to changes in state law Recommended Action:Conduct the first reading of Ordinance No. 12-2095: "An Ordinance of the City Council of the City of Cupertino revising Chapter 9.06 of the Municipal Code, entitled, “Massage Establishments and Services” to conform to changes in state law" Staff report Redline draft ordinance Page: 23.Subject:McClellan Ranch Master Plan 2012 Update andNaming of McClellan Ranch Recommended Action:Formalize the City Council’s conclusions, reached through a “straw vote,” on April 3, 2012 and approve the Parks and Recreation Commission’s recommendations to: 1.Adopt the McClellan Ranch Master Plan 2012 Update; 2.Direct staff to include its priority capital improvement projects in the 2012-17 Capital Improvement Program as appropriate; 3.Adopt Resolution No. 12-046 changing the name of McClellan Ranch Park to “McClellan Ranch Preserve”; 4.Adopt Resolution No. 12-047 renaming the Simms property as “McClellan Ranch West”; however no change in the parcel’s zoning or status can take place until authorized by a future City Council action Staff Report A. McClellan Ranch Master Plan 2012 Update, May 1, 2012 B. Appendix G, Potential CIP Projects by Category,? McClellan Ranch Master Plan 2012 C. Resolution approving the name change of McClellan Ranch Park to McClellan Ranch D. Resolution approving the name of McClellan Ranch West for the property commonly known as the Simms Property Page: REPORTSBY COUNCIL AND STAFF ADJOURNMENT 9 Tuesday, May 1, 2012Cupertino City Council Successor to theRedevelopment Agency SUCCESSOR TO THE REDEVELOPMENT AGENCY MEETING Canceled for lack of business. The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a final decision of the City Council/Redevelopment Agency must be brought within 90 days after a decision is announced unless a shorter time is required by State or Federal law. Any interested person, including the applicant, prior to seeking judicial review of the city council’s decision with respect to quasi-judicial actions, must first file a petition for reconsideration with the city clerk within ten days after the council’s decision. Any petition sofiled must comply with municipal ordinance code §2.08.096. In compliance with the Americans with Disabilities Act (ADA), the City of Cupertino will make reasonable efforts to accommodate persons with qualified disabilities. If you require special assistance, please contact the city clerk’s office at 408-777-3223 at least 48 hours in advance of the meeting. Any writings or documents provided to a majority of the Cupertino City Council after publication of the packet will be made available for public inspection in the City Clerk’s Office located at City Hall, 10300 Torre Avenue, during normal business hours and in Council packet archives linked from the agenda/minutes page on the Cupertino web site. 10 CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject:Present proclamations to Organization of Special Needs Families 2011 President Award Recipients NO WRITTEN MATERIALS IN PACKET 11 CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject:Present proclamations for local students who have been selected to attend global finals of Destination Imagination, the largest creative thinking and problem solving competition in the world NOWRITTEN MATERIALS IN PACKET 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3220www.cupertino.org CITY COUNCILSTAFF REPORT MeetingMay1, 2012 : Subject Treasurer’s Investment and Budget Report for Quarter Ending March 2012 Recommended Action Accept the report Discussionand Fiscal Impact Investments The market and book value of the City’s portfolio both totaled $51.6million at March31, 2012. The portfolio’s 0.26% yield was down 0.02% from last quarter and 0.06% from a year ago as US Treasury rates continue to remain low. The LAIF benchmark yield of0.38%was unchanged from last quarter, but down 0.12% from a year ago. The portfolioincreased$5.2million during the quarter due to sales and property taxes.Thirteen million dollars in new Treasury purchases came from maturing Treasuries and tax receipts. Investments are in full compliance with the City investment policy and State law and are tiered to provide sufficient cash flows to pay City obligations over the next six months. Market values on individual securities in the investment portfolio are provided by Wells Fargo Bank Institutional Trust Services using valuations from Interactive Data Pricing and Reference Data, Inc. The Public Agency Retirement Services (PARS) trust for retiree health benefits was valued at $10.7 million as of March 31, 2012 an increase from the $9.5 million at the previous quarter end. The rise resulted from $350,000 in contributions and $777,000 in investment gains. The trust has earned 4.8% for the year and 8.5% since inception. The trust is invested in equity, fixed income and money market mutual funds and will incur short-term volatility with the goal of long-term moderate investment gains. General Fund Budget Report Revenues for thequarterending inMarch2012are up 10%froma year ago andahead of budget projections.Sales taxes,transient occupancy taxes, licenses/permits, and charges for services are exceeding expectations whileinvestment returnsarecoming in belowprojections. 38 Expenditures for the quarterare up8% over last year,and on track with thebudget.The budget includes the increased costs to service the growingrecreational and development revenues and to fund the biannual electioncost. The Audit Committee reviewed the investment and budget report on April 24, 2012. _____________________________________ Prepared by:DavidWoo, Deputy Treasurer Reviewedby:Carol A. Atwood, City Treasurer Approved for Submission by:Amy Chan,Interim City Manager Attachments:A. Investment Portfolio B. Investments by Type,Rate of Return,and Compliance Charts C. PARS Trust Report D. General Fund Budget Report E. Expenditure and Revenue Charts 39 City of Cupertino Investment Portfolio March 31, 2012 ACTIVITY DATE COUPONYIELDADJUSTEDMATURITYMARKETUNREALIZED PURCHASEMATURITYDESCRIPTIONRATE To Maturity COSTVALUEVALUEPROFIT/LOSS SECURITIES MATURED 01/11/1101/31/12US Treasury Note 0.88%0.30%6,000,0006,000,0006,000,0000 02/02/1102/29/12US Treasury Note 0.88%0.28%4,000,0004,000,0004,000,0000 SECURITIES PURCHASED 01/24/1211/30/13US Treasury Note 0.25%0.22%3,001,6893,000,0002,996,820(4,869) 02/14/1212/31/13US Treasury Note 0.13%0.26%2,993,0033,000,0002,989,680(3,323) 02/14/1201/31/14US Treasury Note 0.25%0.26%2,999,5613,000,0002,995,650(3,911) 02/29/1202/28/14US Treasury Note 0.25%0.27%3,998,8034,000,0003,994,080(4,723) CITY PORTFOLIO CASH 03/31/12Wells Fargo - Workers Comp Checking23,87623,87623,8760 03/31/12Wells Fargo - Regular Checking11,42711,42711,4270 03/31/12Wells Fargo - Repurchase Agreements0.02%0.02%1,191,0711,191,0711,191,0710 1,226,3741,226,3741,226,3740 LAIF 03/31/12LAIF - State Pool0.38%0.38%598,090598,090598,0900 MONEY MARKET FUNDS 03/31/12Wells Fargo 100% Treasury0.00%0.00%6,739,2876,739,2876,739,2870 6,739,2876,739,2876,739,2870 US TREASURY SECURITIES 03/28/1103/31/12US Treasury Note 1.00%0.27%1,000,0001,000,0001,000,0000 05/25/1104/30/12US Treasury Note 1.00%0.17%1,000,6771,000,0001,000,660(17) 05/11/1106/30/12US Treasury Note 0.63%0.22%1,001,0081,000,0001,001,250242 05/25/1107/31/12US Treasury Note 0.63%0.23%1,001,3101,000,0001,001,647337 06/15/1107/31/12US Treasury Note 0.63%0.24%1,001,2961,000,0001,001,633337 06/03/1108/31/12US Treasury Note 0.38%0.24%1,000,5781,000,0001,000,926348 06/15/1108/31/12US Treasury Note 0.38%0.25%2,001,0792,000,0002,001,774695 03/28/1109/30/12US Treasury Note 0.38%0.52%999,2751,000,0001,000,4001,125 06/15/1109/30/12US Treasury Note 0.38%0.26%1,000,5741,000,0001,001,7001,126 06/03/1110/15/12US Treasury Note 1.38%0.27%1,005,9711,000,0001,006,480509 06/27/1110/31/12US Treasury Note 0.38%0.21%2,001,8692,000,0002,002,420551 05/19/1111/30/12US Treasury Note 0.50%0.36%1,000,9171,000,0001,001,615698 06/27/1111/30/12US Treasury Note 0.50%0.23%1,001,8261,000,0001,002,525699 03/28/1112/31/12US Treasury Note 0.63%0.64%999,8671,000,0001,003,1603,293 03/28/1103/15/13US Treasury Note 1.38%0.72%1,006,2281,000,0001,010,8204,592 08/25/1103/31/13US Treasury Note 0.75%0.19%3,016,8463,000,0003,015,480(1,366) 05/06/1104/30/13US Treasury Note 0.63%0.57%1,000,5961,000,0001,004,1803,584 05/19/1106/15/13US Treasury Note 1.13%0.58%1,006,5451,000,0001,010,3503,805 09/26/1107/31/13US Treasury Note 0.38%0.20%2,004,7422,000,0002,002,580(2,162) 11/17/1108/31/13US Treasury Note 0.13%0.22%1,997,2112,000,0001,995,460(1,751) 03/28/1109/15/13US Treasury Note 0.75%0.96%997,0451,000,0001,006,6409,595 12/07/1110/31/13US Treasury Note 0.25%0.23%3,000,7823,000,0002,997,180(3,602) 01/24/1211/30/13US Treasury Note 0.25%0.22%3,001,6893,000,0002,996,820(4,869) 02/14/1212/31/13US Treasury Note 0.13%0.26%2,993,0033,000,0002,989,680(3,323) 02/14/1201/31/14US Treasury Note 0.25%0.26%2,999,5613,000,0002,995,650(3,911) 02/29/1202/28/14US Treasury Note 0.25%0.27%3,998,8034,000,0003,994,080(4,723) 43,039,29843,000,00043,045,1105,812 Total Managed Portfolio51,603,04951,563,75151,608,8615,812 Average Yield0.26% Average Length to Maturity (in years) 0.94 40 City of Cupertino Investment Portfolio March 31, 2012 ACTIVITY DATE COUPONYIELDADJUSTEDMATURITYMARKETUNREALIZED PURCHASEMATURITYDESCRIPTIONRATE To Maturity COSTVALUEVALUEPROFIT/LOSS TRUST PORTFOLIO MONEY MARKET FUNDSKester Trust 03/31/12Wells Institutional Money Mkt Acct0.07%0.07%48,47848,47848,4780 BOND RESERVE PORTFOLIO Bond Reserve Acct Ambac Assurance Security Bond111 41 LÝ;·;· ,ä ä¦; am;7 t©·Ez LAIF Cash 1% Money Market 2% 13% US Treasuries 84% Rate of Return Comparison 0.70% LAIF 0.60% Cupertino 0.50% 0.40% 0.30% 0.20% 0.10% 0.00% 42 Compliance Schedule COMPLIANCE WITH INVESTMENT POLICY City of Cupertino March 31, 2012 CategoryStandardComment Treasury IssuesNo limitComplies US Agencies No limitComplies Medium Term Corporate Bonds30% with A ratingComplies LAIF$50 millionComplies Money Market Funds20%Complies Maximum MaturitiesUp to 5 yearsComplies Per Issuer Max10% (except for Treasuries and US Agencies)Complies Bankers Acceptances 180 days & 40%Complies Commercial Paper270 days & 25%Complies Negotiable Certificates of Deposit30%Complies Repurchase Agreements365 daysComplies Reverse Repurchase agreementsProhibitedComplies Page 2 43 General Fund Revenues Projected vs. Actual 35,000 30,000 25,000 20,000 15,000 Projected, per current budget 10,000 Actual 5,000 0 9/11 12/11 3/12 Quarter Ending General Fund Expenditures Projected vs. Actual 30,000 25,000 20,000 15,000 Projected, per current budget 10,000 Actual 5,000 0 9/11 12/11 3/12 Quarter Ending 47 Sales Tax Projected vs. Actual $14,000 $12,000 $10,000 $8,000 $6,000 $4,000 Projected, per current budget Actual $2,000 $0 9/11 12/11 3/12 Quarter Ending 48 Property Tax Projected vs. Actual $8,000 $6,000 Projected, per current budget $4,000 Actual $2,000 $0 9/11 12/11 3/12 Quarter Ending 49 Transient Occupancy Tax Projected vs. Actual 2,000 1,800 1,600 1,400 1,200 1,000 800 Projected, per current budget 600 Actual 400 200 0 9/11 12/11 3/12 Quarter Ending Licenses & Permits Projected vs. Actual 2,500 2,250 2,000 1,750 1,500 1,250 1,000 Projected, per current budget 750 Actual 500 250 0 9/11 12/11 3/12 Quarter Ending 50 Charges for Services Projected vs. Actual 2,500 2,000 1,500 1,000 Projected, per current budget 500 Actual 0 9/11 12/11 3/12 Quarter Ending Use of Money & Property Projected vs. Actual 700 600 500 400 300 200 Projected, per current budget 100 Actual 0 9/11 12/11 3/12 Quarter Ending 51 CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject:Set budget study session for Wednesday, May 30 beginning at 1:00 p.m. NO WRITTEN MATERIALS IN PACKET 52 OFFICE OF THE CITY MANAGER CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3212www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject 2011-2012 City Council Work Program. Recommended Action Approve the final work program. Discussion On March 20, 2012, Council conducted a study session to review the 2011-2012 work program. Staff has incorporated additional changes to the document. The final is attached for approval. _____________________________________ Submittedby:Amy Chan,Interim City Manager Attachments: A–Work Program 53 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Amend Cupertino’srecords retention schedule. Recommended Action Adopt the draft resolution amending the City of Cupertino recordsretention schedule to add specific record types and extend timelines on certain record types. Discussion On March 4, 2002, the City Council adopted Resolution No. 02-037adopting the Local Government Retention Guidelines Administered by the California State Archives Division of the Secretary of State’s office as the City’s recordsretention schedule. A few departments including City Clerk, Code Enforcement, City Manager, and Planning havedecided that some records should be added and some records should be retained on a longer schedule than specified by the Local Government Retention Guidelines for ease of locating documents and responding to public requests, as well as retaining for historical purposes. The following items wouldbe added to the City of Cupertino records retention schedule: 1. Permits (massage, solicitor, handbill, and taxi) with a retention of CL + 2. 2. Claims for State mandatereimbursements to be kept 3 years from the date of payment from the Secretary of State. 3. City Manager’s Annual Report to be kept as a permanent record beginning with the report dated August 19, 2002. The following items would have a longer retention period: RECORD TYPEPREVIOUS RETENTIONCURRENT RETENTION Council and Planning CU + 2P (in Laserfiche system) Commission packets (agendas and staff reports) Planning Department general CU + 2 CU + 3 subject files Contracts and agreements T + 5P (excluding capital improvement items which are already a permanent record) Case files (including building, CL + 2CU + 5 (for potential litigation property & zoning violations) and interdepartmental efficiency) investigated by Code Enforcement LEGEND CU = Current YearP = Permanent CL = Closed/CompletionT = Termination 91 _____________________________________ Prepared by: Grace Schmidt, Acting City Clerk Reviewed by:Carol Atwood, Administrative Services Director Approved for Submission by:Amy Chan,Interim City Manager Attachments: Staff Report A. Draft Resolution 92 RESOLUTION NO. 12- A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDINGTHE CITY OF CUPERTINO RECORDS RETENTION SCHEDULETOADD SPECIFIC RECORD TYPES AND EXTEND TIMELINES ON CERTAINRECORD TYPES WHEREAS, on March 4, 2002, the Cupertino City Council adopted Resolution No. 02-037adopting the Local Government Retention Guidelines Administered by the California State Archives Division of the Secretary of State’s office as the recordsretention schedule for the City of Cupertino;and WHEREAS, the City of Cupertino has decided that some records should be added and some records should be retained on a longer schedule than specified by the Local Government Retention Guidelinesfor ease of locating documents and responding to public requests, as well as retaining for historical purposes. NOW, THEREFORE, BE IT RESOLVEDthatthe following items are added to the City of Cupertino records retention schedule: 1.Permits (massage, solicitor, handbill, and taxi) with a retention of CL + 2 2.Claims for State mandatereimbursements to be kept 3 years from the date of payment from the Secretary of State 3.City Manager’s Annual Report to be kept as a permanent record beginning with the report datedAugust 19, 2002 NOW, THEREFORE, BE IT RESOLVEDthat the following itemshave a longer retention period: RECORD TYPEPREVIOUS RETENTIONCURRENT RETENTION Council and Planning CU + 2P (in Laserfiche system) Commission packets (agendas and staff reports) Planning Department general CU + 2 CU + 3 subject files Contracts and agreements T + 5P (excluding capital improvement items which are already a permanent record) Case files (including CL + 2CU + 5 (for potential building, property & zoning litigation and violations) investigated by interdepartmental efficiency) Code Enforcement LEGEND CU = Current YearP = Permanent CL = Closed/CompletionT = Termination 93 Resolution No. 12- NOW, THEREFORE, BE IT RESOLVED that the Cupertino City Council hereby rescindsResolution No. 02-037and adoptsthe current resolution to include the changes to Cupertino’srecords retention schedule as noted above. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1stday of May,2012by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ___________________________________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor, City of Cupertino 2 94 From:Grace Schmidt To:Grace Schmidt Subject:FW: Resignation of Stan Stemkoski Date:Thursday, March 29, 2012 9:26:08 AM From: Stan Stemkoski [mailto:sdstemkoski@hotmail.com] Sent: Monday, March 26, 2012 12:51 PM To: David Woo Subject: Resignation HelloDavid: IamsorrytosaythatIamresigningfromtheAuditCommitteeeffective immediately.IhadachangeinmyworkscheduleinWatsonvillesuchthatfor theforeseeablefutureitwillbealmostimpossibleformetomakeweekday meetingsinCupertino,and ImaymoveclosertoWatsonville. IenjoyedworkingwitheveryoneontheCommittee,andasacityresidentIam pleasedtoknowthatthereareverycapablepeopleonCityStaffandCounsel.I haveahighdegreeofconfidenceinthem.Itseemsthatyouhavefoundtwo finenewCommitteememberssothatIwillnotbeleavingyoushort-handed. Sincerely, StanStemkoski 95 RESOLUTION NO. 12- A RESOLUTION OF THE CUPERTINO CITY COUNCIL DECLARING BRUSH GROWING ON CERTAIN DESCRIBED PROPERTY TO BE A PUBLIC NUISANCE AND SETTING HEARING FOR OBJECTIONS TO PROPOSED REMOVAL WHEREAS, brush is growing in the City of Cupertino uponcertain streets, sidewalks, highways, roads and private property; and WHEREAS, said brush may attain such growth as to become a fire menace or which are otherwise noxious or dangerous; and WHEREAS, said brush constitutes a public nuisance; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino as follows: 1.That said brush does now constitute a public nuisance; 2.That said nuisance exists upon all of the streets, sidewalks, highways, roads and private property more particularly described by common names or by reference to the tract, block, lot, code area, and parcel number on the report to be provided by the Agricultural Commissioner; 3.That the 4th day of June, 2012, at the hour of 6:45 p.m., or as soon thereafter as the matter can be heard, in the Council Chamber in the Community Hall, City of Cupertino, are hereby set as the time and place where all property owners having any objections to the proposed removal of such brush may be heard; 4.That the County Agricultural Commissioner is hereby designated and ordered as the person to cause notice of the adoption of this resolution to be given in the manner and form provided in Sections 9.08.040 of the Cupertino Municipal Code. PASSED AND ADOPTED at a regular meeting of the city Council of the City of Cupertino this 1st day of May, 2012by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ______________________________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor of Cupertino 96 RESOLUTION NO. 12- A RESOLUTION OF THE CUPERTINO CITY COUNCIL IN SUPPORT OF THE “MY VOTE OUR FUTURE” PROJECT WHEREAS, certain vital communities in Santa Clara County, including 18-24 year olds, immigrants, seniors and low-income populations are traditionally underrepresented at the polls; and, WHEREAS, traditional voter outreach programs may not be effective in motivating these groups to exercise their right to vote; and, WHEREAS, certain community-based organizations that are already serving these communities employ established, individualized methods of communication that are meaningful to these groups; and WHEREAS, the Santa Clara County Registrar of Voters is funding a voter outreach and education project entitled My Vote Our Future, which is coordinated by community-based organizations of the nature described above, namely: Catholic Charities of Santa Clara; De Anza College/Parents for Great Education; Services, Immigrant Rights and Education Network/Asian Law Alliance; and Working Partnerships USA; and, WHEREAS, in the coming months the My Vote Our Future project, through traditional and nontraditional methods, will focus on increasing voter registration and voter turnout, and work to educate communities on how to complete a ballot, the importance of voting, and new voting rules. NOW THEREFORE LET IT BE RESOLVED that the City of Cupertino endorses andsupports the efforts of the My Vote Our Future project. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1stday of May,2012by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ___________________________________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor, City of Cupertino 97 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Appointment of City of Cupertino representative to the Santa Clara County Valley Transportation Authority (VTA) Bicycle & Pedestrian Advisory Committee (BPAC). Recommended Action Accept the Bicycle Pedestrian Commission (BPC) recommendation to reappoint James Wiant to the VTA BPAC for a two-year term beginning July 1, 2012. Discussion VTA has requested that the City of Cupertino appoint its representative to VTA’s BPAC for the upcoming two-year term that begins July 1, 2012. The term for Cupertino’s current BPAC representative, James Wiant, expires on June 30, 2012. Mr. Wiant has served one term and is eligible for reappointment to a second term.The VTA staff report stated that Mr. Wiant has an extremely good attendance recordand has served in good standing. The BPAC is a 17-member committee that advises VTA’s Board of Directors on planning and funding issues for bicycle and pedestrian projects in the county. Members must liveand/orwork in Santa Clara County during their term and cannot be staff of either VTA or the member agency they represent. Cupertino has one membership position on the committee. Fiscal Impact There is no fiscal impact. _____________________________________ Prepared by:David Stillman, Senior Civil Engineer Reviewed by:Timm Borden, Director of Public Works Approved for Submission by:Amy Chan,Interim City Manager Attachments:None 98 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Municipal Improvements, 21835 Lomita Avenue,APN 357-16-063. Recommended Action Accept Municipal Improvements. Discussion The applicant hascompleted City-specified improvements in the City right-of-way including sidewalk, driveway approachandcurb & gutteras required by the improvement agreement with the City. _____________________________________ Prepared by:Chad Mosley, Associate Civil Engineer Reviewed by:Timm Borden, Director of Public Works Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.Map 99 ATTACHMENTA 10131 10140 1018 1018 10208 10228 . Subject:MunicipalImprovements,21835LomitaAvenue,APN357-16-063. RecommendedAction:AcceptMunicipalImprovements. 21800 10268 2 100 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject A Resolutionof the City of Cupertino City CouncilAuthorizing an Agreement Between the City of Cupertino and the City of Sunnyvale Respecting the Operation and Sharing of Costs Pertaining to Traffic Signals in the Vicinity of Homestead Road. Recommended Action Approve ResolutionNo. 12-_____. Discussion The City boundary between Cupertino and Sunnyvale runs roughly along the centerline of Homestead Road between Bellanca Drive/Belleville Way,west of Highway 85, to Swallow Drive,east of Tantau Avenue. Along this segment are fourteen traffic signals. Seven of these traffic signals are operated and maintained by the City of Sunnyvale, one by Caltransand six by theCity of Cupertino under past written agreements from1980, 1991 and 2001. The cites of Cupertino and Sunnyvale mutually desire to supersede all previous written agreements and replace these with a single written agreement incorporating the thirteen traffic signals owned and operated by the two jurisdictions (Caltrans-owned signal excluded).Under the new agreement, the City of Sunnyvalewilloperate and maintain all traffic signals west of and including Stelling Road/Hollenbeck Avenue(excluding Caltrans-owned signal at Maxine Ave/Highway 85) and the City of Cupertino will operate and maintain all traffic signals eastof and including Franco Court.The purpose for grouping the traffic signals in this manner is to facilitate traffic flow along the corridor by having only one jurisdiction responsible for all signals in a consecutive group. As a result of the new agreement, the City of Cupertino will take over operation and maintenance responsibilities from Sunnyvale for the Homestead Road/Heron Avenue traffic signal. The operation and maintenanceresponsibilities for all othersignals will remain the same. The City of Sunnyvale will be taking the Agreement to their City Council in the near future, subsequent to Cupertino’s approval of the Agreement. Fiscal Impact The cost for operating and maintaining traffic signals is incorporated into the Public Works operating budget.The City of Cupertino currently operates and maintains 55 traffic signals.The total will increase to 56 upon execution of this agreement. No significant fiscal impact is expected to result from this change. _____________________________________ 101 Prepared by:David Stillman, Senior Civil Engineer Reviewed by:Timm Borden, Director of Public Works Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.Resolution B.Agreement 102 ATTACHMENT A RESOLUTION NO. 12- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO, AUTHORIZING EXECUTION OF THE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND THE CITY OF SUNNYVALE RESPECTING THE OPERATION AND SHARING OF COSTS PERTAINING TO TRAFFIC SIGNALS IN THE VICINITY OF HOMESTEAD ROAD WHEREAS, an agreementhas been presented to the City Council between the City of Cupertino and the City of Sunnyvale respecting the operation and sharing of costs pertaining to traffic signals in the vicinity of Homestead Road; and WHEREAS, the provisions, terms and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney and the Director of Public Works; and NOW, THEREFORE, BE IT RESOLVED that the City of Cupertino City Council herebyapproves the agreement and authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular adjourned meeting of the City Council of the City of Cupertino this1st day of May,2012, by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 103 ATTACHMENT B AGREEMENT BETWEEN CITY OF CUPERTINO, CALIFORNIA AND CITY OF SUNNYVALE, CALIFORNIA RESPECTING THE OPERATION AND SHARING OF COSTS PERTAINING TO TRAFFIC SIGNALS IN THE VICINITY OF HOMESTEAD ROAD This agreement (“Agreement”) is made and entered into on this ____ day of ____________, 2012 (“Effective Date”) byandbetweentheCity of Sunnyvale, a chartered Californiamunicipalcorporation(“Sunnyvale”)andtheCity of Cupertino, a chartered California municipal corporation (“Cupertino”). This agreement is for the purpose of assigning responsibility and costs for the operation and maintenance of various traffic signals, safety lighting and related equipment at various intersections in the subject jurisdictions. (Cupertino and Sunnyvalemay be referred toindividually as a “Party” or collectively as the “Parties.”) RECITALS A.There exist along the common boundary between Cupertino and Sunnyvale certain intersections where traffic signals,interconnect systems and highway safety lighting have been established and there is joint jurisdiction as to various street approaches to these intersections. Several such intersections are located in the vicinity of Homestead Road. In addition, several intersections located entirely within Sunnyvale are in close proximity to such shared- jurisdiction intersections. B.Cupertino and Sunnyvaledo mutually desire to cooperate and jointly participate in and thereby share the operation, maintenance, repair and improvement of the traffic signals, interconnect systems and highway safety lighting described herein and desire to specify herein the terms and conditions under which said systems are to be maintained, repaired and/or improved. C.Prior written agreements have been executed over time by and between the Parties, i.e. agreements dated October 6, 1980, May 28, 1991 and June 2001. The Parties hereby seek to replace, supersede, incorporate, and expand these prior agreements by the subject Agreement and reduce their present shared responsibilities concerning the subject intersections to a single agreement. D.It is in the public interest to assign to the respective Partiesresponsibility for maintenance and control of the traffic signals and related equipment at the subject intersections, in order to allow for sharing of costs and responsibilities 1 104 and to facilitate the creation of a continuous groupingof signals for coordination purposes. In consideration of the foregoing recitals and the following mutualcovenants, commitments,andobligations oftheParties, Cupertino and Sunnyvale do hereby agreeas follows: AGREEMENT PROVISIONS 1.DESCRIPTION This agreement describes the Parties'determination of an appropriate accord for the sharing, division and allocation of responsibilities and costs relating to control and maintenance of the traffic signals and related equipment presently existing in the vicinity of the common boundary between Cupertino and Sunnyvale along or nearHomestead Road. If either party determines that interconnection of signals within its jurisdiction requires installation or construction of facilities to be located within the other Party’s jurisdiction, the requesting Party shall follow the procedure set forth in Paragraph 4 below. DEFINITIONS A.The term “Intersection” shall refer to any of the intersectionsof Homestead Road included in this Agreement. B.The term “Traffic SignalSystem”shall refer to and include any traffic signalfacilities, interconnect systems and appurtenant intersection street or safety lightingexisting at any Intersection referenced herein. C.The terms “Operate and Maintain,” and/or “Operation and Maintenance” mean providing services and payment of capital and labor costs for repair, replacement, upgrades, inspections, adjustments, and electrical power associated with the operation and maintenance of the Traffic Signal at the Intersection. 2.RESPECTIVE OBLIGATIONS OF THE PARTIES Cupertino Agrees: A.To Operate and Maintain the Traffic Signal System within the following Intersectionsalong Homestead Road and bear all costs associated therewith: 2 105 Franco Court/Forge Way De Anza Boulevard Blue Jay Drive Blaney Avenue Wolfe Road Tantau Avenue Heron Avenue B.To review with counterparts in Sunnyvale the operation and timing of traffic signals enumerated above and make changes in hours of operation and timing as may be deemed necessary by mutual agreement of the Parties and in such a manner as is consistent with sound traffic engineering practices. SunnyvaleAgrees: A.To Operate and Maintain the Traffic Signal System within the following Intersectionsalong Homestead Road and bear all costs associated therewith: Barranca Drive/Belleville Way Bernardo Avenue Wright Avenue Mary Avenue Kennewick Drive Stelling Road/Hollenbeck Avenue B.To review with counterparts in Cupertinothe operation and timing of traffic signals enumerated above and make changes in hours of operation and timing as may be deemed necessary by mutual agreement of the Parties and in such a manner as is consistent with sound traffic engineering practices. 3.PERFORMANCE OF CONTRACT OBLIGATIONS The Parties shall perform the duties and obligations set forth herein by means of their own forces of through the services of third parties retained under contract after public bidding. The use of such third parties or contractors shall not in any way diminish or replace the responsibilities owed by the Parties hereunder. 4.LICENSE/RIGHT OF ENTRY/INTERCONNECTION PERMITS The Parties hereby confer upon one another for the life of this Agreement a continuous and uninterrupted license/right of entry pursuant to which the 3 106 Parties and/or their agents may access and perform work required hereunder within the jurisdictional boundaries of the other Party. If anyParty determines that it is necessary to install or construct interconnection facilities and wireswithin the other Party’s jurisdiction, the applicant Party shall file an application for an Encroachment Permit, and provide submittals as are reasonably required by the permitting Party, including but not limited to traffic management plans, permit plans and other documentation.The permitting Party shall assist the applicant Party concerning waiver of application fees if allowed for by the permitting Party. 5.INDEMNIFICATION/HOLD HARMLESS A. Neither Cupertino nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Sunnyvale under or in connection with any work, authority or jurisdiction associated with the Intersection. In addition, pursuant to Government Code §895.4, Sunnyvale shall fully indemnify and hold Cupertino harmless from any liability imposed for injury (as defined by Government Code §810.8) occurring by reason of anythingdone or omitted to be done by Sunnyvale under or in connection with any work, authority or jurisdiction delegated to Sunnyvale under this Agreement. B. Neither Sunnyvale nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Cupertino under or in connection with any work, authority or jurisdiction associated with the Intersection. In addition, pursuant to Government Code §895.4, Cupertino shall fully indemnify andhold Sunnyvale harmless from any liability imposed for injury (as defined by Government Code §810.8) occurring by reason of anythingdone or omitted to be done by Cupertino under or in connection with any work, authority or jurisdiction delegated to Cupertino under this Agreement. 6.TERM This Agreement shall become effective upon the effective date and shall remain in force and effect for ten (10) years from the Effective Date unless amended or terminated. Thereafter, the Agreement shall be subject to automatic renewal for a like period and term unless any party hereto gives prior notice of non-renewal. Such notice shall be given in writing at least 90 (ninety) days prior to the expiration of the each term. 4 107 7.TERMINATION Either Party may terminate thisAgreement in writing for failure of the other Party to perform. Such writing shall be forwarded to the other Party pursuant to the notice provision herein. Said termination shall be effective sixty (60) days following delivery of such notice. 8.ASSIGNMENTS AND SUCCESSORS The Parties hereby bind themselves, their partners, successors, assigns, executors, and administrators to all covenants to this Agreement. Except as otherwise set forth herein, no Party hereto may assign or transfer to a third party any right or interest in this Agreement, or any duty or obligation hereunder, absent express written consent of the other Party. However, nothing in this Agreement shall prevent either Party from entering into contracts with third parties for the performances of any obligation set forth herein or required hereunder. 9.AMENDMENTS It is mutually understood and agreed that no alteration or variation of the terms of this Agreement shall be valid or binding unless made in writing and signed by both Parties hereto. Such writing may be in letter or other form and may be executed in counterparts. Upon execution, any such amendment shall be deemed incorporated into this Agreement. 10.INTEGRATED DOCUMENT This Agreement embodies the totality of the agreement between the Parties and the terms thereunder. No other understanding, agreements, conversations or other communications by or between the Parties or any of their officials, agents, or employees prior to the execution of this Agreement shall affect or modify any of the terms or obligations contained herein. 11.NO THIRD PARTY BENEFICIARIES This Agreement shall not be deemed or construed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. 12.MEET AND CONFER In the event that a dispute does arise relating to any right, duty or obligation under this Agreement, or respecting its interpretation, the Parties shall meet to discuss resolution. Each Party shall appoint an individual to represent said Party in connection with such meeting, which may take place in person or via 5 108 telephone. Either party may provide the other Party with forty-eight hours’ written or telephonic notice prior to the meeting and select a mutually convenient time and place for said meeting. The Parties shall meet and confer at such meeting in order to expend all reasonable efforts possible to resolve outstanding issues. 13.NOTICES All notices to the Parties shall, unless otherwise requested in writing, be sent to the respective recipients as follows: Sunnyvale: Transportation and Traffic Manager City of Sunnyvale 456 W. Olive Avenue Sunnyvale CA 94088 408/737-4943 Cupertino: Traffic and Engineering Department City of Cupertino 10300 TorreAvenue Cupertino CA 95014-3255 408/777-3354 The Parties hereby acknowledge and accept the terms and conditions of this Agreement as evidenced by the signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date. CITY OF SUNYVALE, CALIFORNIA A chartered California municipal corporation Approved as to form: _______________________________________________________ DAVID KAHNGARY LUEBBERS City AttorneyCity Manager Attest: _______________________________ KATHLEEN FRANCO SIMMONS City Clerk 6 109 CITY OF CUPERTINO, CALIFORNIA A chartered California municipal corporation Approved as to form: _______________________________________________________ CAROL A. KORADEAMY CHAN City AttorneyInterim City Manager Attest: _______________________________ KIMBERLY SMITH City Clerk 7 110 PUBLIC WORKS DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Collection of the AB 939 Implementation and Household Hazardous Waste Fee. Recommended Action a.Adopt Resolution No. 12-_____,authorizing execution oftheAgreement for Countywide AB 939 Implementation Feefor FY 2012-2015. b.Adopt Resolution No. 12 -_____,authorizing execution ofthe Agreement for Countywide Household Hazardous Waste CollectionProgramfor FY 2012-2015. Description InJuly 1992, the County of Santa Clara began collectinga Countywide AB939 Implementation Fee (Fee). AB 939 establishes statutory authority to provide funding to supportintegrated waste management programs. The Fee is levied on each ton of waste delivered to the landfills and non- disposal facilities. Theportion of the Fee collected on behalf of the cities that encompassSanta Clara County (approximately $42,000 annuallyfor the City of Cupertino) is distributed to the cities on a quarterlybasisfor the purpose of funding city-specific programs (e.g. composting and recycling) required for meeting AB939 waste stream diversion goals. In order for the Countywide AB 939 Fee to be collected and distributed, the County of Santa Clara,and the fifteen cities within the County,must approve the Agreementsbefore July 1, 2012. Household Hazardous Waste(HHW)Program services are directly mandated under AB 939.The Fee is set at$4.10 per ton, which includes two components:$1.50 to fund AB939 Programs and $2.60 to fund the Countywide HHW Program. This fee reflects no increase from fiscal year 2011-2012.Components of the Implementation Fee have been set at the appropriate levels to fund the AB939 and HHW programs. Both Agreements now need to be approved and executed. On June 30, 2012, the current annual Agreements will expire.For convenience, the termsof the new Agreements for the Countywide AB 939 Implementation Fee and the new Agreement for Countywide Household Hazardous Waste Collection Program shall be for three years, from July 1, 2012 to June 30, 2015. All fifteen cities are expected to approve the Agreementsbefore July 1, 2012. If one or more cities do not approve the Agreements, the AB 939 Fee will not be collected and the current funding mechanism for providing Countywide AB939 programs and HHW services to residents will not be available. 1 111 Discussion TheCounty Household Hazardous Wastedrive-through, drop-off collection program always retains the HHW portionof each city’sannual share of the Fee. As in the past, the proposed 2012-2013 operating budget indicates thatadditional funds (up to $45,000)may be neededto provide HHW services for all Cupertino households that want to participate in the County’s HHW program. The City’s recommended augmentation has been reduced from a cap of$65,000 in FY 2011-2012to a cap of$45,000for FY 2012-2013 through FY 2014-2015due to increased residential participation inthe City’s own door-to-door household hazardous waste collection programoffered through the City’s Franchise Agreement with Recology. The City continues to offer participation in theCountywide program to Cupertino residents to providemore than one method ofsafe disposal. Having more options available for safe disposal reduces the likelihood that hazardous household chemicalswill be illegally disposed in garbage cans and taken to landfill. Regardless of the augmented budget, the City is nevercharged more than the actual use of the Countywide program byCupertinoresidents. If the City does notprovide asufficient budget for desired participation, residents who request County appointments late in the fiscal year would be turned away. Sustainability Impact AB939 and HHW programs are designed to reduce waste sent to landfill andto prevent hazardous waste from impacting the environment. Fiscal Impact Adoption of the resolutions will facilitate the Countywide AB 939 Implementation Fee being set at the appropriate level to fund the City’s and Countywide AB 939 Implementation and HHW Collection programs. The projected budget augmentation for HHW participation has decreased from a cap of$65,000 in FY 2011-2012 to a cap of$45,000 for FY2012-2013through FY2014- 2015due to increased residential participation in the City’s own door-to-door household hazardous waste collection program offered through the City’s Franchise Agreement with Recology. _____________________________________ Prepared by: Cheri Donnelly, Environmental Programs Manager Reviewed by: Timm Borden, Director of Public Works Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.A Resolution Authorizing Execution of theAgreement for the Countywide AB 939 Implementation Fee for FY 2012-2015 B.A Resolution Authorizing Execution of theAgreement for the Countywide Household Hazardous Waste Collection Program For FY 2012-2015 C.Agreement for the Countywide AB 939 Implementation Fee for FY 2012-2015 D.Agreement for the Countywide Household Hazardous Waste Collection Program for 2012-2015 2 112 ATTACHMENT A RESOLUTION NO. 12- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF THEAGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE FOR FY 2012-2015 WHEREAS, there has been presented to the City Council the“Agreement for the Countywide AB939 Implementation Fee”(Agreement), between the County of Santa Clara and the City of Cupertino; and WHEREAS, a countywide AB939 Implementation Fee(Fee)was established in 1992 to assist the fifteen cities and the county unincorporated area to fund the costs of preparing, adopting, and implementing an integrated waste management plan in each jurisdiction as specified in the agreement; and WHEREAS, the Recycling and Waste Reduction Commission of Santa Clara County has determined the Fee should remain at$4.10per ton for Fiscal Years2013, 2014, and 2015forthe three-year term of the new Agreement,July 1, 2012to June 30, 2015.The Fee will beimposed on each ton of waste landfilled or incinerated within the County or generatedwithin the County and subsequently transportedto non-disposal facilities or collection facilities located outside the County; and WHEREAS, the Agreementprovides for the County to administer the program to collect fees, and distribute the fees to each jurisdiction; and WHEREAS, said Agreementas amendedstates the terms and conditions under which County will collect and distribute the Fee for a three-year term; and WHEREAS, the provisions of the newAgreement have been reviewed and approved by the Director of Public Works and the City Attorney; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Cupertino hereby approves the “Agreement for the Countywide AB 939 Implementation Fee for FY 2012- 2015”and authorizes the Mayor and the City Clerk to execute said agreements on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular adjourned meeting of the City Council of the City of Cupertino this 1stday ofMay, 2012,by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 113 ATTACHMENT B RESOLUTION NO. 12-___ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF THE AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAMFOR FY 2012-2015 WHEREAS, there has been presented to the City Council a new“Agreement For Countywide Household Hazardous Waste Collection Program,”between the County of Santa Clara and the City of Cupertino; and WHEREAS, the Agreementwill provide for continued City participation in the County’s Household Hazardous Waste Collection Program for Fiscal Years2013, 2014, and 2015(July 1, 2012 –June 30,2015); and WHEREAS, the City only pays for the Cupertino residents that actually use the Countywide drive-through and drop-off program; and WHEREAS, the provisions of the Agreement have been reviewed and approved by the Director of Public Works and the City Attorney; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Cupertino hereby approves the “The Agreement for Countywide Household Hazardous Waste Collection Programfor FY 2012-2015” and authorizes the Mayor and the City Clerk to execute said Agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular adjourned meeting of the City Council of the City of Cupertino this 1stday of May, 2012, by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 114 ATTACHMENTC 115 116 117 118 119 120 121 122 123 124 125 126 127 ATTACHMENTD 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 PARKS AND RECREATION DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3110www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Feewaiverrequest from theLeague of Women Voters of Cupertino-Sunnyvaleof approximately $240.00 in facility use fees for the use of Community Hall on May 18, 2012, for a Candidates Forum for the State Senate Districts 13 and 15 and Assembly Districts 24 and 28. Recommended Action Approve the fee waiverrequest. Description The League of Women Votersof Cupertino-Sunnyvale is a nonprofit, nonpartisan political organization. Pursuant to the City of Cupertino’s facility use policy, adopted by the City Council, a nonprofit organization providing a service to the community shall receive a waiver of fees relative to their event as has been done in previous years. Sustainability Impact N/A Fiscal Impact Waive the roomrental fees of approximately $240.00. _____________________________________ Prepared by:Mark Linder, Director, Parks and Recreation Reviewed by: Approved for Submission by:Amy Chan, InterimCity Manager Attachments: Attachment A –Letter from League of Women Voters 156 157 CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject:Postpone vacation of Finch Ave between Stevens Creek Boulevard and Vallco Parkway NO WRITTEN MATERIALS IN PACKET 158 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 1, 2012 Subject Community Development Block Grant (CDBG)funds, Human Service grants and FY 2012 Annual Action Plan Recommended Action Conduct Public Hearing; and 1. Adopt Resolutions No. 12 ___ approving the allocations for the use of the 2012-13 CDBG program and human service grant as detailed in Attachment B; and 2. Approve the FY 2012-13Annual Action Plan (Attachment B) as required by the Federal Department of Housing and Urban Development (HUD) Description This is the second of two required public hearings regarding use of 2012-13CDBG funds, Human Service grants and FY 2012-13Annual Action Plan. Background On April 3, 2012, the City Council reviewed the draft Annual Plan and conducted the first public hearing. Attached is the staff report (Attachment B) fromthe April 3, 2012 public hearing which provides details on the Housing Commission funding recommendations. The report also contains a draft Annual Plan which is requiredto be submitted to HUD no later than May 15, 2012. Fiscal Impact The City of Cupertino is expecting to receive$310,000for fiscal year 2011-12, plus a reallocation of $14,730 in projected program income from rehabilitation loan payoffs for a total of $324,730. The Affordable Housing Fund receives revenue from BMR fees paid by developers of residential,office, commercial, or hotel.Currently, the fund has approximately $600,000. _____________________________________ Prepared by: Vera Gil, Senior Planner Reviewed by: Aarti Shrivastava, Director of Community Development Approved for Submission by: Amy Chan,Interim City Manager Attachments: Attachment A: Resolution No. 12- AttachmentB:April 3, 2012 City Council Staff Report with Attachments 159 ATTACHMENTA DRAFTRESOLUTION NO. 12- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ADOPTING THE 2012-13ANNUAL ACTION PLAN AND THE USE OF TENTH PROGRAM YEAR (2012-13) COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDS AND HUMAN SERVICE GRANTS WHEREAS, the Housing and Community Development Act of 1974 provides that funds be made available for the Community Development Block Grant program and Human Services Grants; and WHEREAS, the City of Cupertino wishes to apply for funds as an Entitlement Jurisdiction under said Act; and WHEREAS, the City of Cupertino understands that it shall receiveapproximately$310,000in CDBG funds; and WHEREAS, the City of Cupertino is required to submit an Annual Plan prior to being allowed to expend said funds; NOW, THEREFORE BE IT RESOLVED that the City of Cupertino hereby certifies that the projects being proposed for funding meet the certifications outlined in Section 570.303 of the Community Development Block Grant Administrative Regulations; and BE IT FURTHER RESOLVED that the City of Cupertino hereby approves the 2012-13Annual Plan and the use of tenthprogram year (2012-13) Community Development Block Grant (CDBG) funds and Human Service Grants; and BE IT FURTHER RESOLVED that the public service grant and human service grant allocations will be decreased/increased based on final budget allocations. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to submit the project proposals and the 2012-13Annual Plan approved by the City Council to HUD; and BE IT FURTHER RESOLVED that the City Council of the City of Cupertino hereby authorizes the City Manager to execute the agreements for allocation of tenthprogram year (2012-13) Community Development Block Grant funds. PASSED AND ADOPTED at a regular meeting of the City Councilof the City of Cupertino this st 1day of May, 2012by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: City ClerkMayor, City of Cupertino 160 ATTACHMENTB COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308www.cupertino.org STAFF REPORT Meeting: April 3,2012 Subject Community Development Block Grant (CDBG) funds, Human Service grants and FY2012 Annual Action Plan Recommended Action Conduct public hearing and continue final approval of the funding allocations andFY 2012 Annual Action Plan to April 17, 2012 to complete the 30 day review period. Description This is the first of two required public hearings regarding use of 2011-12 CDBG funds, Human Service grants, and the FY 2011 Annual Action Plan. Discussion CDBG Program The City of Cupertino is expecting to receive a CDBG entitlement of approximately $310,000for fiscal year 2012-13 (compared to $353, 012 received in fiscal year 2011-12), plus a reallocation of $14,730 in projected program income from rehabilitation loan payoffsfor a total of $324,730. This is Cupertino’s tenthyear as an entitlement jurisdiction receiving the CDBG grant directly from HUD and the firstyear of atwo-year public service funding cycle. HUD regulations require that projects selected for funding benefit very low and low-income households, eliminate a blighted area, or address an urgent (emergency) community need. In addition, only certain types of activities qualify under the CDBG regulations. Examples of eligible activities are: Removal of barriers to the handicappedProperty acquisition for affordable housing Public improvements Rehabilitation of affordable units Public service activities Affordable housing developments Of the $324,730(entitlement plus program income), only 20%, or $64,946,may be used for administration of the program and 15%, or $48,709may be used to fund public service activities. Public service activities must benefit very low and low-income households and include activities such as childcare, placement services, senior legal services, etc. The remainder of the grant($196,345)can only be used foractivities such as the purchase of land for affordable housing, rehabilitation of qualifying units, construction of affordable units and public improvements in low and very-low income neighborhoods. Attachment B provides a summary of the funding allocations. Request for Proposals: This is Cupertino’s thirdyear utilizing an on-line Request for Proposal (RFP) and application process. Staff placed a public notice in the local paper notifying potential applicants of the funding availability and directing the agencies to the City website where they received instructions on how to accessthe www.citydataservices.comwebsite. 161 Community Development Block Grant (CDBG) funds, Human Service grantsand FY 2012 Annual Action PlanApril 3, 2012 Cupertino Housing Commission: On May 18, 2010, the City Council approved arevisedCitizen Participation Plan as part of its 2010- 2015Consolidated Plan. Prior to expending CDBG dollars, the City is required to have a Citizen Participation Plan, Consolidated Plan and an Annual Plan in place. As part of the revisedCitizen Participation Plan, the City declared that the Cupertino HousingCommission would serve as the advisory body on CDBG matters. The Housing Commission’s responsibility is to make recommendations on policy, evaluate proposals received and makefunding recommendations to the City Council. On March 8, 2012,the Housing Commissionmet and conducted a public hearing on the FY 2012-13 CDBG and Human Service funding allocations. The recommendations from the Housing Commission are listed below: CDBG Public Service Grants: The public service portion of the CDBG entitlement is limited to 15% of the entire entitlement plus projected program income. Three agencies receiving funding in the past did not submit funding requests. These agencies are Community Technology Alliance, United Way’s 2-1-1 Program and Outreach and Escort. Even with three agencies not requesting funding, the Housing Commission faced some tough funding choices because of a HUD grant reduction of slightly more than 12%.Rather than just reducing each returning agency’s grant by 12%, the Housing Commission believed it was more cost effective to award larger grants to fewer agencies. Agencies not recommended to receive grants were the Santa Clara Family Healthy Foundation’s Healthy Kids Program, YWCA’s Support Network for Battered Women and West Valley Community Service’s(WVCS)Haven to Home program. The Commission believes that with funding decreases, it makes sense to only support basic necessary services such as food, shelter and assistance for domestic violence and senior abuse. They also were concerned about duplication of services and recommended funding only one domestic abuse program rather than two. The Commission also agreed to increase funding for WVCS’s Affordable Placement Program which is funded with BMR funds. This would free up money in WVCS’s general budget so that the Haven to Home Program would still be funded although it would not be receiving CDBG funds. The end result would be the City administering seven public service grants rather than the 11 grants it is currently administering. Also, each agency receiving funding, with the exception of the Affordable Placement Program,would be fully funded at its requested amount. CDBG Construction/Acquisition/Rehabilitation: Unlikethefunding for public service and administrative activities, the percentage of funding used for capital improvements, construction, acquisition and rehabilitation is not limitedto a specific percentage of the total funding. It encompasses the largest percentage of the CDBG entitlement. This year, staff received onefunding proposal for this funding source. The Commission recommended that the City Council fully fund Rebuilding Together Silicon Valley’s request for $65,000to continue its program of making minor home repairs for low and very low income Cupertino homeowners. The allocation would allow the agency to serve 5-8 eligible Cupertino households. General Fund Allocation for Human Service Grants: 162 Community Development Block Grant (CDBG) funds, Human Service grantsand FY 2012 Annual Action PlanApril 3, 2012 Every year the City Council allocates approximately $40,000 from the General Fund to human service agencies. Formal agreements and monitoring are required for this program, but the requirements are less stringent than for federal funding. The Housing Commission reviews the allocations at the same time as the CDBG allocations and makes recommendations to the City Council. The Human Service Grant allocations are on a two-year funding cycle similar to the CDBG public service grant cycle. Four agencies willbe funded through this funding source for a total of approximately $39,898. Agencies recommended for funding include Long Term Care Ombudsman Program, Live Oak’s Senior Adult Day Care and Maitri’s Domestic Violence Program. Each agency is recommended toreceive the requested funding amount. Affordable Housing Fund: The Housing Commission recommendsa $100,000 allocation to West Valley Community Services from the Affordable Housing Fund for administration and monitoring of the Below Market Rate (BMR) Program units. Last year, WVCS received $75,000 for this program. The Commission voted toincrease funding for WVCS’s Affordable Placement Program which is funded with BMR funds. This would free up money in WVCS’s general budget so that the Haven to Home Program would still be funded although it would not be receiving CDBG funds.The Affordable Housing Fund receives its revenue from the payment of housing mitigation fees from office, commercial and industrial developments. Currently, the fund has approximately $600,000 available for allocation. FY 2012-13Annual Action Plan: Federal regulations require that each entitlement jurisdiction prepare an Annual Action Plan and th submit the plan to the regional HUD office no later than May 15of each year. The Annual Action Plan is a one-year plan which describes the eligible programs, projects and activities to be undertaken with funds expected during the program year (Fiscal Year 2012-2013) and itsrelationship to the priority housing, homeless and community development needs outlined in the approved Consolidated Plan. Furthermore, Federal regulations require the plan be made available for 30 days for public review and comment. The FY 2012-2013Annual Action Plan(AttachmentA)was released for public review on March16, 2012for the 30-day review period. A notice was placed in the local paper informing the public of its availability. On April 17, 2012, the City Council will hold a final public hearing to approve the Annual Action Plan for submittal to HUD. Fiscal Impact The City of Cupertino is expecting to receive $310,000for fiscal year 2011-12, plus a reallocation of $14,730 in projected programincome from rehabilitation loan payoffs for a total of $324,730. The Affordable Housing Fund receives revenue from any BMR fees paid by developers of residential, office, commercial, or hotel. These fees are accumulated and used for the creation of new affordable housing units either through new construction or substantial rehabilitation. A certain percentage is also used to pay WVCS to administer the sale and rental of BMR units.Currently, the fund has approximately $600,000. _____________________________________ Prepared by: Vera Gil, Senior Planner Reviewed by: Aarti Shrivastava, Director of Community Development Approved for Submission by: David W. Knapp, City Manager Attachments: AttachmentA: Fiscal Year 2012-13Annual Action Plan 163 Community Development Block Grant (CDBG) funds, Human Service grantsand FY 2012 Annual Action PlanApril 3, 2012 AttachmentB: Summary of Funding Allocations AttachmentC: 2012-13CDBG FundingApplications 164 CITY OF CUPERTINO Fiscal Year 2012Annual Action Plan Prepared by the Department of Community Development 10300 Torre Avenue Cupertino, CA 95014 Aarti Shrivastava, Director Approved by City Council April ,2012 Resolution 12- For information regarding this document, please contact: Vera Gil, Senior Planner Phone: (408) 777-3251 E-mail: verag@cupertino.org 165 EXECUTIVE SUMMARY The Action Plan is an annual plan, which the City of Cupertino, as lead agency, oversees pursuant to the goals outlined in the Consolidated Plan. The Action Plan details the activities Cupertino will undertake to address the housing and community development needs and local objectives using funds received during that program year from the Community Development Block Grant (CDBG) plus anticipated Program Income. The Action Plan consists of HUD- developed forms plus a supplemental narrative. The largest portion of the CDBG resources continues to be used for housing and homeless programs available on a citywide basis. Administrative costs will not exceed 20% of the annual allocation. Evaluation of Past Performance Over the course of fiscal year 2012/2013the City of Cupertino anticipates providing financial assistance to 4affordable housing units through the use of CDBG funds. The funds will be used to assist in the construction of four units by Habitat for HumanitySilicon Valleyalocal CBDO. The portion of CDBG funds that will be allocated to public service subrecipients will be used to provide approximately 800 persons with food, clothing and housing counselingand Fair Housing counseling services to five Cupertino residents. Cupertino was successful in addressing a majority of the goals and objectives cited in the fiscal year 2011/12Annual Action Plan. Most of the CDBG funds were used to carry out activities that benefit low and moderate-income persons. Only CDBG administration funds and a portion of ECHO’s fair housing funds did not directly serve low and moderate-income persons. Some of the funded activities include fair housing, food and clothing and emergency housing. These activities continue to make a positive impact on identified needs and are providing services that might have gone unmet. As can be expected, community needs continue to exceed the available resources. INTRODUCTION The Annual Action Plan is a one-year plan which describes the eligible programs, projects and activities to be undertaken with funds expected during the program year (Fiscal Year 2012-2013) and their relationship to the priority housing, homeless and community development needs outlined in the Consolidated Plan. FEDERAL RESOURCES The City of Cupertino’s Annual Action Plan for the 2012-13Program Year is a comprehensive approach to addressing the immediate community needs of people who are very low and low income. The Action Plan is based on a Community Development Block Grant (CDBG) entitlement of $310,000that the City anticipates will be received from the federal Department of Housing and Urban Development (HUD) andan anticipated$14,730in program income. 166 Exhibit A describes the agencies proposed to receive funding in the 2012-13fiscal year. Also detailed in the exhibit are the goals and proposed funding amount for each of the agencies. Anticipated CDBG program income derived from outstanding rehabilitation program loans during the 2011-12Program Year is estimated to total $14,370. A portion of that program income will be allocated to support Public Service activities and administration. The city of Cupertino will allocate $42,560to public service activities. Consistent with CDBG regulations, this amount represents no more than 15% of the combined total of the City's projected 2011-12 Program Year income and the 2012-13entitlement. In 1999 HUD informed the Santa Clara County that the San Jose Metropolitan Statistical Area is one of the high-incomeareas where the income limits were increased to the actual 80% of median income, adjusted for household size. The City of Cupertino will continue to use the actual 80% of median income limits for all of its CDBG programs in the 2012Program Year. Individual activities may use a lower income eligibility criterion. OTHER RESOURCES Housing Mitigation Program The Office and Industrial Mitigation Program acknowledges housing needs created by the development of office and industrial projects. A fee is applied to new square footage of office and industrial development in the City. The fees collected are deposited in the City's Affordable Housing Fund and are to be used for the provision of affordable housing. The City's Residential Mitigation Program applies to all new residential development of one unit or greater. Residential developers are required to designate at least 15% of the units in an ownershipdevelopment as affordableand are required to pay a mitigation fee for rental developments. These designatedunits are identified as the "BMR" (Below Market Rate) units. For ownership developments of six or fewer unitsor in the case of all rental developments, the developer may pay a fee in-lieu of building the affordable units. All affordable units developed under the BMR program must remain affordable for 99 years from the date of first occupancy and, if for sale units are resold during that period, a new 99 year time period is established. The City administers the Affordable Housing Fund, which is currentlysupported with fees paid through the Housing Mitigation Program. Potential options for use of the housing funds include: a.Development of new affordable units. b.Conversion of existing market rate units to affordable units. c. Down payment assistance programs. d.Second mortgage programs. West Valley Community Services–West Valley Community Services (WVCS) is a non-profit organization that assists in administering housing programs on behalf of the City of Cupertino. WVCS administers the Haven to Home Program which provides support services for homeless individuals and also manages a transitional housing facility. Further, WVCS acts as the administrative agent on behalf of the City in managing and monitoring the BMR program. Housing Trust of Santa Clara County (HTSCC)–The HTSCC is a public/private venture, dedicated to increasing affordable housing in the Silicon Valley. The Trust makes available 167 funds for developers to borrow for the construction of the affordable units. Cupertino originally contributed $250,000 to the fund and accessed the fund to assist in the development of Vista Village, a 24-unit affordable apartment complex constructed by BRIDGE Housing and Cupertino Community Services.Subsequently, the City contributed $25,000 in 2008,2009and 2010and an additional $1,000,000 in 2011. Mortgage Credit Certificate (MCC) Program-The MCC program provides assistance to first- time homebuyers by allowing an eligible purchaser to take 20% of theirannual mortgage interest payment as a tax credit against federal income taxes. Santa Clara County administers the MCC Program on behalf of the jurisdictions in the County, including Cupertino. The program does establish maximum sales price limits on units assisted in this program and, due to the high housing costs in Cupertino, there have been few households assisted in Cupertino in recent years. -- Second Unit ProgramThe City's Second Unit Ordinance allows an additional unit to be built on any single-family residential parcel. The objective of this Ordinance is to encourage additional units on already developed parcels, such as parcels with single-family dwellings. Santa Clara County Affordable Housing Fund (AHF) In July 2002, the Santa Clara County Board of Supervisors created an Office of Affordable Housing and established a housing trust fund in the amount of $18.6 million to be used for affordable housing developments. The primary goal of the fund is to leverage funding with other sources and create affordable housing in Santa Clara County. Section 8 The Housing Authority of the County of Santa Clara (HACSC) provides rental subsidies and develops affordable housing for low-income families, seniors and persons with disabilities living in Santa Clara County, California, the heart of Silicon Valley. Thispast year, the Housing Authority provided voucher assistance to 64Cupertino households. -- Density Bonus OrdinanceThe City's Density Bonus Ordinance allows a 25% increase in density for developments greater than 5 units that provide a proportion of units for very low or low-income households or housing for senior citizens. In addition to the density bonus, certain concessions can also be provided to the development, which can include: a.Reduction of Parking Requirements, b.Reduction of Open Space Requirements, c.Reduction of Setback Requirements, d.Approval of Mixed Use Zoning, e.Reduction of Park Dedication Fees, f.Reduction of application or construction permit fees, or g.Provision of tax-exempt or other financial assistance. CITIZEN PARTICIPATION The Housing Services Division of the Community Development Department is the lead agency for overseeing the development of the Consolidated Plan and Annual Action Plan. 168 This Annual Action Plan development process began with an advertised public hearing, held by the Cupertino Housing Commission on March 8, 2012to makefunding recommendationsto the City Council. In addition, to the public notice, written notification of the hearing was made to numerous non-profit service agencies and the city’s CDBG Steering Committee for the purpose of gaining greater input for determining the best use of anticipated federal funds for addressing community needs. The City Council held twoadvertised public hearing onApril 3, 2012andApril17, 2012, to determine the allocation of CDBG funds for the 2012Program Year. The Annual Plan 30 day public review period occurred March16, 2012through April 16, 2012. The City did not receive any public comments. CONSULTATION WITH OTHER JURISDICTIONS As standard practice, CDBG entitlement jurisdictions from throughout Santa Clara County meet at least quarterly to discuss issues of common interest. Meeting agendas cover such topics as projects receiving multi-jurisdictional funding, performance levels and costs for contracted public services, proposed annual funding plans, HUD program administration requirements, and other topics of mutual concern. These quarterly meetings provided the opportunity for the City to consult with other jurisdictions on its proposed use of federal funds for the 2012Program Year. CONSOLIDATED PLAN (CON PLAN) PRIORITIES The City of Cupertino adopted a new Consolidated Plan on May 18, 2010 withthe priorities listed in Table 2A and 2B. These tables are attached and incorporated by reference as Exhibit B of this document. GEOGRAPHIC DISTRIBUTION A map outlining geographic areas considered to be of low and moderate-income concentration is included as part to this submittal. In the map, three Census tracts indicate a higher percentage of low/mod population than all other Cupertino Census tracts. Funding support for the listed projects is based more on expressed need within the community rather than upon geographical priority. ANTI-POVERTY STRATEGY In a continuing effort to reduce poverty, the city ofCupertino will make it a priority to fund agencies that provide direct assistance to the homeless and those in danger of becoming homeless and make a commitment to improve the communication and service delivery capabilities of agencies and organizations that provide programs to assist the homeless. Depending on funding availability, Cupertino will continue to provide assistance to public agencies and nonprofit organizations providing neighborhood housing services, supportive services to the homeless, older adults with physical or mental impairment, the mentally ill, victims of domestic violence, and households with abused children among others. 169 Coordinate with public agencies providing job training, life skills training, leadpoisoning prevention and remediation and other education programs that listed in the City’s Consolidated Planstrategies. HOMELESS AND SPECIALNEEDS In previous years, the City of Cupertino appropriated $20,000 in CDBG funds for the Sobrato Family Living Center Projectand contributed to the Home Safe-Santa Clara providing transitional housing for survivors of domestic violence who are considered at-risk for homelessness. Most recently, ina 2008 mid-year reallocation,the City contributed $800,000 to Maitri, a non-profit agency providing transitional housing to victims of domestic violence, for the purchase of a four-plex in Cupertino. In addition to these capital project subsidies, the City will support the reopening of the Rotating Shelter Program. The City of Cupertino will also continue to coordinate services to the homeless through such inter-agency efforts as the Collaborative, Help House the Homeless, and the Community Technology Alliance and support the regional Continuum of Care. Cupertino alsoparticipated in the countywide homeless count that took place in early 2009 which reported 18unsheltered homeless. This is an update of the surveysthat took place in 2005, and2007. In addressing senior services, the City will continue advocacy for the increased dissemination of accurate information and counseling for seniors and other persons regarding housing options available. This will be accomplished through a cooperative effort with the Cupertino Senior Center, West Valley CommunityServices and the Cupertino Public Library. LEAD-BASED PAINT Lead-based paint awareness and abatement will be fully integrated by the City of Cupertino into its assisted housing programs. Each tenant, landlord and property owner will be informed of the dangers, symptoms, testing, treatment and prevention of lead-based paint poisoning. Lead-based paint hazard stabilization or abatement will be provided in each and every rehabilitation project. Furthermore, adherence to Federal guidelines for reduction activities withlead-based paint is provided for in every federally funded rehabilitation loan. PUBLIC HOUSING The City will continue to encourage the local Public Housing Authority to develop affordable units in the city of Cupertino. LEVERAGING OF FUNDS To the greatest extent possible, when feasible, the City of Cupertino will leverage public and private resources to achieve the goals of the Consolidated Plan. Cupertino will continue to request that affordable housing developers to seek private financing and grants and to fully 170 utilize other state and federal funding sources, such as the State of California Multifamily Housing and the Low Income Housing Tax Credit programs. FAIR HOUSING Cupertino continues to support both the purpose and goal of fair housing and works to achieve fair housing in administering federal, State and local programs. The City also supports the development of affordable housing stock that is an important part of a fair housing initiative, given the high cost of local housing. In conjunction with other jurisdictions in Santa Clara County, the City commissioned a comprehensive survey to identify unmet needs and unidentified barriers, to assess the delivery of fair housing services, and to recommend action steps to meet the County's fair housing needs. The study was completed in 2003 and the city will be working with the other Santa Clara County jurisdictions to review program changes as a result of the study. The City prepared an updated Analysis of Impediments to Fair Housing Choice (AI) in 2010. The proposed actions to be undertaken by the City in the 2012Program Year consist of the following: The City will continue to require developers to provide relocation assistance when residents will be displaced. The City will continue to provide a housing program that allows for modification of existing housing facilitating the needs of persons with disabilities. The City will continue to support non-profit organizations whose purpose is to aid in the furthering of fair housing in the community. Methods of support could include notification of fair housing rights and responsibilities distributed in brochures located in public buildings, public service announcements on the local access channel or similar methods. The City will continue to allow for the construction of higher occupancy housing complexes on a case-by-case basis when possible, for all economic segments of the community. PROGRAM MONITORING Performance monitoring for compliance to federal program requirements is scheduled at least once annually for projects that are under service contract. Monitoring of federally funded activities is undertaken for projects that are either under an annual or longer-term performance period. In addition, the City undertakes an annual Single Audit according to the requirements of the federal Office of Management and Budget. As standard practice, notification is made to HUD on the availability of the City's annual audit. URGENT OR COMMUNITY NEED In the event of a local, state or federal disaster declaration for areas within the boundaries of the City of Cupertino, the City will reserve the right to use CDBG funds to abate immediate and necessary hazards. The funds may be used for staff efforts, grants or loans to affected parties, as approved by theCity Council and allowed under the federal regulations. 171 AMENDMENTS TO PLAN Prior to the submission of any substantial amendment in the proposed use of funds, citizens will be provided reasonable notice of, and the opportunity to comment on, any proposedAction Plan amendments. RELATIONSHIP OF THE ANNUAL PLAN TO THE CONSOLIDATED PLAN G1A OAL SSIST IN THE CREATION AND PRESERVATION OF AFFORDABLE HOUSINGFOR -. LOWERINCOME AND SPECIAL NEEDS HOUSEHOLDS Objective: Suitable Living Environment Outcome: Sustainability Outcome Statement: Provide opportunities for suitable living environments with improved/new sustainability Indicators: 1.New housing units available to various income groups 2.Overall increase in housing stock 3.Reduction in householdspaying too much for housing 4. Number of parcels with changed land use designations 5.Number of second units created Proposed 2012Activity: Below Market Rate Program 2012Goal: Create 5Housing Units G2S. OAL UPPORT ACTIVITIES TOEND HOMELESSNESS Objective: Suitable Living Environment Outcome: Availability/Accessibility Outcome Statement: Provide a suitable living environment with improved/new availability Indicators: 1.Number of persons assisted with homeless services 2.Number of persons assisted with emergency rental assistance. Proposed 2012Goals :Provide homeless prevention services through Haven to Home and emergency rental assistance through WVCS Comprehensive Assistance Indicators: Provide homeless prevention services to 100individuals Provide emergency rental assistance to 100eligible residents a year. G3S,, OAL UPPORT ACTIVITIES THAT PROVIDE BASIC SERVICESELIMINATE BLIGHT /. ANDOR STRENGTHEN NEIGHBORHOODS Objective: Suitable Living Environment Outcome: Availability/Accessibility Outcome Statement: Provide funding to a variety of non-profits that assist low and very-low income residents. Indicators: 1.Support programs that provide legal assistance to seniors. 2.Provide funding for social service organizations that assist low and very-low income households and special needs population. Proposed 2012Activity: Fund a variety of public service agencies that provide services to low and very-low income. 2012Goal: Serve 1,000 low and very-low income households with support services. 172 GOAL4P. ROMOTE FAIR HOUSING CHOICE Objective: Suitable Living Environment Outcome: Availability/Accessibility Outcome Statement: Provide a suitable living environment with improved/new availability Indicators: 1.Number of outreach activities 2.Number of households with resolved fair housing disputes Proposed 2012Goals Eden Council for Hope and Opportunity –Fair Housing Services Indicators: Distribute 1000 brochures. Resolve 10Fair Housing cases. G5E- OAL XPAND ECONOMIC OPPORTUNITIES FOR LOWINCOME HOUSEHOLDS Objective: Suitable Living Environment Outcome: Availability/Accessibility Outcome Statement: Indicators: 1.Support local employment development and workforce training programs 2.Support programs that facilitate small business development Proposed 2011Goals :Serve 60 households through Nova program Indicators: Provide employment counseling and job resources to 60 Cupertino residents. G6P OAL ROMOTE ENVIRONMENTALSUSTAINABILITY Objective: Suitable Living Environment Outcome: Availability/Accessibility Outcome Statement: Encourage and fund energy efficient improvements and modifications for existing rental units serving extremely low, very low income and low income households. Indicators: 1.Fund energy efficient improvements and modifications for existing rental units serving extremely low, very low income and low income households. Proposed 2012Goals :Provide energy efficient improvements through Rebuilding Together SiliconValley Indicators: Provide 5-8 homes with energy improvements. 173 ExhibitA SUMMARY OF CDBG AND AFFORDABLE HOUSING FUND APPLICATIONS PUBLIC SERVICE GRANTS: A.Catholic Charities of Santa Clara County Long Term Care Ombudsman Program 2012-13Request:$5,000 Provide advocacy for 250 unduplicated Cupertino Annual Goal: residents and investigate and resolve 20 complaints. Provide advocacy for Cupertino residents in long term Project Description: care facilities to ensure they have a voice in their own care and treatment. The program will receive, investigate and resolve any complaints associated with the care of the long term care facility residents. Recommendation:$5,000from Human Service Grants program. The program meets a high priority according to Table 2B of the C Consolidated Plan. This program was previously funded at the same level through the Human Services Grants program of the Cupertino Gener B.Eden Council for Hope and Opportunity (ECHO) Fair Housing Services 2012-13Request:$9,850 Fair housing education to the housing industry, Annual Goal: investigating allegations of discrimination (10 cases a year). Provide fair housing assistance to the city of Cupertino, Project Description: including conducting presentations, counseling housing providers, and investigating allegations of discrimination. Recommendation:$9,850from 2012-13CDBG The program will provide a valuable service to the City of Cuper been providing Cupertinos fair housing services for many years. consistency of having ECHO continue the program. Staff would the agency be required to meet with local apartment managers annually to revie law and provide informational meeting for tenants on fair housin C.Live Oak Adult Day Services Adult Day Care for Seniors 176 ExhibitA 2012-13Request:$15,098 Provide scholarships to 11 Cupertino low-income Annual Goal: seniors enabling them to receive adult day care at the facility. Cupertino Senior Day Services provides services for Project Description: seniors at risk of being institutionalized. Seniors can be dropped off at the Cupertino facility to receive care and participate in recreational activities while family members are working. Recommendation:$15,098 from Human Service Grants Allocation As the Cupertino population ages, more seniors are in need of this valuable service. Cupertino does not have a large inventory of senior as programs such as Cupertino Senior Day Services provides families alternative to moving parents and older family members into an aving setting. D.Maitri Domestic AbuseServices 2012-13Request:$10,000 Maitri will provide 400 Case Management Services to 14 Annual Goal: Cupertino residents staying at Maitris Cupertino Transitional Housing Project Maitris Transitional Housingprovides transitional Project Description: housing and related supportive services to low income victimsof domestic violencewho are at high risk of becoming homeless and/or suffering further abuse to themselves and their children. The main objectives of MaitrisTransitional Housingprogram are to foster self sufficiency; help residents obtain safe, permanent housing; and assist low income domestic violencevictims live a healthy, productive life for themselves and their children by breaking the cycle of domestic violenceabuse and learning critical life skills. Recommendation:$10,000from Human Service Grants Domestic violence services represent a high need in the Cupertin Plan. 177 ExhibitA E.Santa Clara Family Health Foundation Healthy Kids Program 2012-13Request:$5,160 Provide health coverage to five Cupertino children per Annual Goal: year. Healthy Kids enables low-income children in Santa Clara Project Description: County to receive health services they need for healthy development. Funded entirely through local public and private sources, the program provides comprehensive health coverage for a population generally underserved. Recommendation:$0 The Cupertino Housing Commission believes that with limited fund that are providing essential services to Cupertinos low and very-low income populations need to be served first. The Commission believes th health care is important, shelter, food, clothing, domestic abus services are of a higher priority. F.SeniorAdults Legal Assistance Legal Aide to Seniors 2012-13Request:$9,800 Annual Goal: Serve 40Cupertino seniors. Senior Adults Legal Assistance (SALA) provides free Project Description: legal services to low and very low-income seniors at the Cupertino Senior Center. Legal services provided are in the area of consumer complaints, housing, elder abuse, and simple wills. Recommendation:$9,800from CDBG Many years ago, the city council directed staff to work with SALA to their services and funding level. The Cupertino Senior Center h increased grant has helped tremendously during the past few year like to encourage the city to continue funding the agency at the current funding level. G.West Valley Community Services Comprehensive Assistance Program 2012-13Request: $34,000 Provide support services to 623unduplicated Cupertino Annual Goal: households. 178 ExhibitA West Valley Community Services has provided support Project Description: services to the West Valleys low and very-low income households since 1973. Support services include a food pantry, clothing closet and rental assistance. Recommendation:$34,000from theCDBG 2012-13Allocation. The agency provides necessary services to Cupertino residents. medium priority need in the Cupertino Consolidated Plan. H.West Valley Community Services Home to HavenProgram 2012-13Request:$25,000 Provide homeless prevention services to 100 Annual Goal: unduplicated clients. Support services include access to voicemail, on-site Project Description: medical services, monthly bus passes, weekly laundry, and employment search assistance. Each client will also receive a case manager to help each client develop self sufficiency goals. Financial asset building is also part of the homeless prevention program. Recommendation:$0 West Valley Community Services successfully managedthe Rotating Shelter Program for 18 years. Due to decreased funding, the agency elimdthe program, however, it would like to continue to offer homeless pr services. It is proposing to provide support services to 100 un Cupertino residents. City staff encouraged the Housing Commission to consider funding Shelter Program again and not provide funding the for prevention maintain the Haven to Home program funding, the grant to WVCS co increased to cover YWCA, Support Network for Battered Women Domestic Violence Services for Cupertino Families 2012-13Request:$5,000 Serve a total of 18 unduplicated Cupertino residents. Annual Goal: The Support Network operates Santa Clara Countys Project Description: only 24-hour, crisis line for victims of domestic violence. The shelter provides support services including 179 ExhibitA emergency housing to battered women. Recommendation:$0 Although the Commission believes the Support Network Program pro valuable service, the Commission believed that only one domestic abuse program should be funded with this years limited funding.The Commission recommended funding Maitris domestic abuse program at the reque amount. CONSTRUCTION/REHABILITATION: I.Rebuilding Together Silicon Valley Rebuilding Housing Repair and Home Modifications 2012-13Request:$65,000 Repair homes for five to eightCupertino households. Annual Goal: Rebuilding Together Silicon Valley will repair and Project Description: rehabilitate and improve the accessibility and mobility of homes for low and very-low income households. Recommendation:$65,000from 2012-13CDBG Allocation. We are allocating additional funding to this agency to complete additional minor rehabilitation and energy efficiency upgrades to low and very-low income Cupertino homeowners. Energy efficiency has become a high HUD AFFORDABLE HOUSING FUND: J.West Valley Community Services, Cupertino Affordable Housing Placement Program 2012-13Request:$106,000 Provide placement and necessary support services to 75 Annual Goal: households (250 individuals). Continue current services. West Valley Community Services has been responsible Project Description: for the monitoring, screening and placement services for ten senior units located at Chateau Cupertino as well as below market rate rental units. They maintain a waiting list for qualified applicants andprovide services to those placed in the affordable units. Recommendation:$100,000 (Affordable Housing Fund) The agency has performed the necessary task of screening and pla below market rate program. The agency also monitors the BMR program 180 ExhibitA annually.As part of this program, the agency will order and review lot bo reports for each BMR ownership unit owner to ensure units are not over encumbered. City staff would like the funding to be contingent upon the gran full-time staff person and direct costs associated with managing the BMR program only and not managing other programs at WVCS. 181 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 CITY ATTORNEY’S OFFICE 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3403www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 1,2012 Subject Amendments to Cupertino Municipal Code 2.28: 1) removing the residency requirement for the city manager position and, 2) amending the number of City Council votes required to remove the city manager from a 4/5 vote to a majority. Recommended Action Staff recommends that the City Council amend Cupertino Municipal Code 2.28.020to delete the residency requirement for the City Manager position. If desired, the voting requirement for City Manager removal in 2.28.090 may be changed to a majority vote of the City Council. Description Cupertino Municipal Code (CMC) 2.28.020 currently requires the City Manager to reside in Cupertino.The California Constitution Section 10(b) prohibits any city from requiring residency from its employees.While the residency requirement was legal when enacted, it is now unconstitutional and unenforceable, therefore staff recommends deleting this provision from the CMC to comply with the California Constitution. CMC 2.28.090 currently requires a 4/5 vote of the City Council to remove the City Manager. Discussion Background The City of Cupertino’s Municipal Code currently contains the following City Manager residence requirement: 2.28.020 Residence Requirement Residencein the City at the time of appointment shall not be requiredas a condition of employment, but within one hundred eighty days thereafter the City Manager must become a resident of the City, unless qualifiedly impossible or the City Council declares the office of ht City Manager to be vacant. (Ord. 106, § 2, 1959). California Constitution Section 10 (b), adopted in 1970states: 267 (b) A city or county, including any chartered city or chartered county, or public district, may not require that its employees be residents of such city, county, or district; excepts that such employees may be required to reside within a reasonable distance and specific distance of their employmentto or other designated location. Thus, the City of Cupertino’s ordinance requiring that the City Manager live within the City is not legal and is unenforceable. It has been superseded by a subsequently adopted California constitutional provision. 2.28.090 Suspension –Removal –Resignation The City of Cupertino’s Municipal Code contains the following City Manager removal requirement, “The removal of the City Manager shall be only upon a four-fifths vote of the City Council.” The Council may amend the four-fifths requirement to require a majority vote, as shown on the attached red-line ordinance. ____________________________________ Prepared by:Teresa Zueger,Legal Services Manager Reviewed by: Carol Korade, City Attorney Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.Red-lined Chapter 2.28, in part 268 ORDINANCE NO. 12-____ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 2.28 OF THE CUPERTINO MUNICIPAL CODE REGARDING THE CITY MANAGER POSITION THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: Cupertino Municipal Code 2.28 is hereby amended in part to read as follows. The remaining provisions remain unchanged: 2.28.090Suspension–Removal–Resignation. A.The removal of the City Manager shall be only upon a majority vote of the City Council.A resolution of intention to remove the City Manager shall first be passed at any regular or special meeting of the Council.The resolution shall specify the reason or reasons for the removal and state whether the Manager is to be suspended from his or her duties upon passage of the resolution.It shall also state a date and hour for a hearing at a regular or special meeting of the Council to be held at the usual meeting place of the Council.The hearing date shall be no less than two weeks nor more than four weeks from the date of passage of the resolution.Within one week after passage of the resolution, a copy thereof shall either be served personally upon the City Manager or sent to him or her by registered mail, return receipt requested, at his or her last known address.The hearing shall be open to the public if the City Manager so requests in writing by notifying the City Clerk at least seven days before the date set for the hearing. B.At the time set for the hearing, the City Manager shall have an opportunity to answer the reason or reasons given for his or her removal.Nothing herein contained, however, shall be construed to require the Council or any of its members to substantiate or prove the reason or reasons for said removal as a condition of the removal, it being the intention of the Council that the City Manager shall hold office only at the discretion of the Council and may be removed at any time by following the procedure set forth in this section.At the hearing the Council shall take final action on the resolution of intention to remove the City Manager and shall adopt a motion or a resolution either to carry out his or her removal or to retain him or her.If the action is to remove the City Manager, his or her removal shall not be effective until at least two weeks have expired from the date of the hearing.Failure of the Council to adopt a motion or resolution for his or her removal shall be deemed a recision of the resolution of intention. C.The City Manager shall be entitled to receive his or her regular compensation during the period between the effective date of his or her removal and passage of the resolution of intention of removal. 269 D.The City Manager may resign from his or her position upon at least four weeks' notice in writing given to the City Council. INTRODUCED at a regularmeeting of the Cupertino City Council the 15thday of May, 2012 and ENACTED at a regular meeting of the Cupertino City Council this ____day of _____, 2012 by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 270 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Ordinance amending Chapter 6.24 (Garbage and Recycling Collection and Disposal) of the Cupertino Municipal Code to address “Mandatory Recycling” requirements (AB 341) for multi- family and commercial business recycling. Recommended Action Conduct first reading of Ordinance No. 12-____: "An Ordinance of the City Council of the City of Cupertino amending Chapter 6.24 (Garbage and Recycling Collection and Disposal) of the Cupertino Municipal Code to address “Mandatory Recycling” requirements (AB 341) for multi- family and commercial business recycling adding Section 6.24.035 (Mandatory Recycling) and amending Section 6.24.020 (Definitions) and 6.24.300 (Unauthorized Garbage Collection). Description Assembly Bill 341 (AB 341) –Chesbro,which was passed in 2011, requires all businesses generating greater than or equal to 4cubic yards per week of solid waste and all multi-family residential dwellings of 5units or more to arrange for recycling services by July 1, 2012. AB 341 also sets a statewide policy goal of divertingat least 75%of generated solid waste from landfill by the year 2020. The City of Cupertinoincorporated a diversion requirement of75% by November 1, 2014 intoits Franchise Agreement with Recology (effectiveNovember, 1, 2010). Discussion Implementation ofAB 341 will require one additional multi-family complexand thirty-two commercial businessesin the City of Cupertinoto subscribe torecycling services. Recology will contact the commercial businessesthat currently do not have recycling service, arrange for recycling and deliver recycling containers to the properties beforeJuly 1, 2012. Each of these properties will also be encouraged to participate in the Citywide composting service offered by Recology at no additional cost to the City or to the property owner. Staff has prepared the Ordinance, adding Section 6.24.035 (Mandatory Recycling) to Chapter 6.24 to comply with Assembly Bill 341.AmendmentstoSection 6.24.020 (Definitions) and 6.24.300(Unauthorized Garbage Collection)clarifythe requirements currentlyin the City’s Franchise Agreement. Sustainability Impact Mandatory recycling will help the City achieve its goal of 75% waste diversion fromlandfill. 271 Fiscal Impact Recycling is free to all Cupertino residents and businesses. There will be no financialimpact to the City or to Recology customers in the City of Cupertino. _____________________________________ Prepared by:Cheri Donnelly, Environmental Programs Manager Reviewed by:Timm Borden, Director of Public Works Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.Draft OrdinanceChapter 6.24 -Redline Version B.Draft Ordinance Chapter 6.24 -Clean 272 ATTACHMENT A ORDINANCE NO. 12- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 6.24 (GARBAGE AND RECYCLING COLLECTION AND DISPOSAL) OF THE CUPERTINO MUNICIPAL CODE TOADDRESS “MANDATORY RECYCLING” REQUIREMENTS(AB341)FORMULTI- FAMILY AND COMMERCIAL BUSINESS RECYCLING THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: Section 1.SECTION 6.24.020 AMENDED. Section 6.24.020of the Cupertino Municipal Code is hereby amended to read as follows: 6.24.020Definitions. For the purposes of this chapter, the following words and phrases shall have the meanings ascribed to them by this section, unless the context or the provision clearly requires otherwise: 1.“City” means and includes all the territory lying within the municipal boundaries of the City of Cupertino as presently existing, plus all territory which may be added thereto during the effective term of the ordinance codified herein. 2.“Collection station” means the location at which containers of garbage, recyclables and compostable materials are placed for collection by the authorized garbage collector. 3. “Compostable Materials” means organic materials, including but not limited to, materialgenerated from tree trimming, shrubbery pruning, vegetative garden wastes, dead plants, weeds, leaves, grass clippings, food and non-food vegetative matter, soiled paper, and cardboard and waxed cardboard that decompose biologically. 4. “Construction and demolition debris” or “C&D debris” means materials resulting from the construction, remodeling, or demolition of buildings and other structures. “Construction and demolition debris” includes, but is not limited to,concrete, asphalt, rock and dirt related to construction, remodeling, repair, or demolition operations and is subject to the provisions of Chapter 16.72. 5. “Debris box service” means collection service in containers without compaction that have a capacity of eight (8) cubic yards or more. Debris boxes may be used for the collection of recyclable and compostable materials, or garbage, and may be used for construction and/or demolition debris that may or may not be intended for full or partial recycling or other waste diversion. 273 6.“Delinquent” means a failure of the recipient of garbage collection service, or of the property owner, to pay when due all charges owed to the garbage collector for garbage collection service rendered or to be rendered. 7.“Director” means the Director of Public Works and his/her duly authorized agents and representatives. 8.“Dwelling” means a residence, flat, duplex, apartment, townhouse, condominium or other facility used for housing one or more persons. 9.“Equipment” means a debris box or debris bin and vehicles used to transport debris boxes or bins. 10.“Finance Director” means the Finance Director and his/her duly authorized agents and representatives. 11.“Garbage” means all materials, substances or objects that are discarded, including but not restricted to, materials, substances or objects commonly referred to as “trash,” “garbage,” “refuse” and “rubbish” that are produced, generated or accumulated by all residential, commercial, industrial, institutional, municipal, agricultural and other inhabitants, premises and activities within the City, the collection of which is regulated through the franchise agreement existing between the City and the authorized garbage collector; provided, however, that “garbage” does not include (a) hazardousmaterials,(b) recyclable materials, (c) compostable materials, (d) construction and demolition debris, (e) biomedical waste, (f) ash, and (g) sewage and other highly diluted water-carried materials or substances and those in gaseous form. 12.“Garbage collector” means any person or entity authorizedby the franchise agreement between the Franchisee and the City, in accordance with Section 6.24.120of this chapter, to collect, receive, carry, transport, and dispose of any garbage produced, kept or accumulated within the City. 13.“Garbage collection service” means the collection, transportation and disposal of garbage,compostable materials and recyclablesby an authorized garbage collector. 14.“Hazardousmaterials” means any or combination of materials which because of its quantity, concentration, or physical, chemical or infectious characteristics may either: (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed. Hazardous materials includes, but is not limited to, hazardous wastes as defined under California or United States law or any regulations promulgated pursuant to such laws, and all toxic, radioactive, biologically infectious, explosive or flammable waste materials, including any material defined in Section 9.12.020of the Cupertino City Code for which a hazardous materials storage permit is required. 274 15.“Multiple-unit dwelling” or “multiple family dwelling” means any premises, excluding a hotel, motel, or lodginghouse, usedfor residential purposes containing more than one dwelling unit, irrespective of whether the residency is transient, temporary or permanent. 16.“Nonresidential premises” means all premises except residential premises, including but not restricted to premises used for industrial, commercial, administrative and professional offices, public and quasi-public buildings, utility and transportation. 17.“Occupancy”; “occupied”:Premises are “occupied” when a person or persons take or hold possession of the premises for permanent or temporary use.For the purposes of determining whether a premises is occupied during periods when garbage collection service is made available to such premises, occupancy shall be presumed unless evidence is presented that gas, electric, telephone and water utility services were not being provided to the premises during such periods. 18.“Owner” means the holder or holders of legal title to the real property constituting the premises to which garbage collection service is provided. 19.“Person” includes any person, firm, association, organization, partnership, business trust, joint venture, corporation, or company, and includes the United States, the State of California, the County of Santa Clara, special purpose districts, and any officer or agency thereof. 20.“Premises” means any land, building or structure, or portion thereof, within the City where any garbage is produced, kept, deposited, placed or accumulated. 21. “Recyclables” or ”Recyclable Material” mean those materials that can be returned to economic use as raw materials for new, reused or reconstituted products, which prior to collection are separated by the generator from other material treated as garbage. Examples of Recyclables include, but are not limited to: newspaper, cans, corrugated cardboard, glass, certain types of plastic, metals, wood, automobile oil, and compostable items such as food and yard waste.“Mixed Recyclables” means more than one type of Recyclable Material commingledin a bin, debris box, compactor or other type of container. This material includes, but is not limited to wood, paper, plastic, metals, glass, and other dry waste. The material mustnot have more than 10% putrescible or non-recyclable waste. 22.“Residential premises” means any single-unit dwelling or multiple-unit dwelling. 23.“Single-stream recycling” means a recycling program in which generators place multiple types of recoverable materials in a single container that is designated specifically for recyclables and is taken to a material recovery facility for processing. 24.“Single-unit dwelling” means one or more rooms and a single kitchen, designed for occupancy by one family for residential purposes.Each dwelling unit within a condominium project, duplex, townhouse project or apartment, and each second unit 275 located within a single-family residential zoning district, shall constitute a separate single-unit dwelling to which garbage collection service is provided, unless the owner or occupants thereof arrange for garbage collection service to be provided to all dwelling units upon the premises at commercial rates. 25.“Source Separated Recyclables” means any Recyclables that, prior to collection, are or have been separated or segregated by their generator as to type or category of source material and are or have been placed into separate containers according to type or category, i.e. all metal is separated from other recyclables and placed in its own separate container or separate debris box. 26.“Tenant” means any person or persons, other than the owner, occupying or in possession of a premises. Section 2.SECTION 6.24.035 ADDED. A new Section, Section 6.24.035is hereby added tothe Cupertino Municipal Code to read as follows: 6.24.035Mandatory Recycling A.All new construction and remodeling of existing residential and commercial business structures is required to be designed to adequately store containers for recyclables, compostables and garbage. B.All responsible parties of residential properties are required to subscribe to and maintain mandatory residential recycling services for each individual household in the dwelling. An exception may be granted at the discretion of the City Manager or the City Manager’s designated representative if it is determined there is not sufficient storage space for the containers at the residential property. C.All responsible parties of commercial business properties are required to subscribe to and maintain mandatory commercial recycling services at commercial business properties that generate greater than or equal to four (4) cubic yards of refuse per week. Ifthe franchised hauler transports containers of refuse generated at the commercial business property to a material recovery facility for the purposes of mixed waste processing, thereby separating recyclablesfrom the mixed waste and recycling the 276 recyclables, the commercial business property will be deemed to be subscribing to recycling services. D.The disposal of garbage in containers designated for compostable material processing or for source separated or single-stream recyclingis prohibited. E.The franchised hauler is prohibited from providing garbage service to responsible parties of commercial business properties subject to the mandatory recycling requirements without providing a recycling program that includes the collection of a container no less than thirty-two (32) gallon capacity, provided by the hauler, at least one time per week. The only exceptions to this requirement are the following: (1)The franchised hauler provides a mixed waste processing program to the commercial business in which refuse containers are taken to a material recovery facility for processing to remove recyclable materials. (2)The franchised haulermay verify the responsible party has been granted an exception to the mandatory commercial recycling program from the City Manager or the City Manager’s designated representative. Section 3.SECTION 6.24.300 AMENDED. Section 6.24.300of the Cupertino Municipal Code is hereby amended to read as follows: 6.24.300Unauthorized Garbage Collection. No person shall collect any garbage,mixed recyclables, or construction and demolition materials from debris boxes, compactors and bin-by-the-day services, produced, kept or accumulated within the City, unless such person is an agent or employee of the City acting within the course and scope of his employment, or has been awarded a franchise by the City to act as garbage collector.The City shall notifyany person or entity violating this section that the prompt and permanent removal of any collection bin, box or container from the place or premises is required. The City’s franchised hauler may take legal action to protect the exclusive rights granted tothe hauler inthefranchise agreement. The following situations are exempt from this section: 277 A) The transporting of garbage or recyclables, by the property owner,that have been generated on thepropertyby the owner of the property or by an individual or entity leasing or renting the property fromthe property owner. B) Collectionofrecyclable materials which have been source separated from other garbage by the generator and which the generator sells or donates to any other person or organization, or any recyclable materials which have a value equal to or more than the cost of collection. C) Removal of construction, remodeling ordemolition debris as part of a total service offered by the contractor, where the removal is performed by an employee of the contractor usingonlyequipmentowned by the contractor. D) Removal of green waste or plant trimmings by a gardening, landscaping, or tree trimming contractor as an incidental part of a total service offered by that contractor. E) Collection of grease wastes from grease bins, grease traps or grease interceptors. F) Collection of horse manure from residences or non-residential properties. G) Collection of hazardous materials. H) Collection of non-hazardous material that is greater than fifty percent (50%) liquid(including septic tank pumping, and other liquid wastes). Section 4. Statement of Purpose. This Ordinance is intended to bring the requirements ofChapter 6.24,into compliance with the requirements of Assembly Bill 341(Chesbro) which require multi-family dwellings of five or more units and commercial businesses generating four or more cubic yards of solid waste per week to arrange for recycling services no later than July 1, 2012. In the absence of this amendment, Chapter 6.24 would be inconsistent with the law. Section 5. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwisevoid, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. Section 6. Effective Date.This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. Section 7. Certification.The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. INTRODUCED at a regular meeting of the Cupertino City Council the ____day of ______________and ENACTED at a regular meeting of the Cupertino City Council _____ the day of ______________by the following vote: 278 VoteMembers of the City Council Ayes: Noes: Absent: Abstain: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 279 ATTACHMENT B ORDINANCE NO. 12- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 6.24 (GARBAGE AND RECYCLING COLLECTION AND DISPOSAL) OF THE CUPERTINO MUNICIPAL CODE TO ADDRESS “MANDATORY RECYCLING” REQUIREMENTS(AB341)FORMULTI- FAMILY AND COMMERCIAL BUSINESS RECYCLING THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: Section 1.SECTION 6.24.020 AMENDED. Section 6.24.020of the Cupertino Municipal Code is hereby amended to read as follows: 6.24.020Definitions. For the purposes of this chapter, the following words and phrases shall have the meanings ascribed to them by this section, unless the context or the provision clearly requires otherwise: 1.“City” means and includes all the territory lying within the municipal boundaries of the City of Cupertino as presently existing, plus all territory which may be added thereto during the effective term of the ordinance codified herein. 2.“Collection station” means the location at which containers of garbage, recyclables and compostable materials are placed for collection by the authorized garbage collector. 3. “Compostable Materials” means organic materials, including but not limited to, materialgenerated from tree trimming, shrubbery pruning, vegetative garden wastes, dead plants, weeds, leaves, grass clippings, food and non-food vegetative matter, soiled paper, and cardboard and waxed cardboard that decompose biologically. 4. “Construction and demolitiondebris” or “C&D debris” means materials resulting from the construction, remodeling, or demolition of buildings and other structures. “Construction and demolition debris” includes, but is not limited to,concrete, asphalt, rock and dirt related to construction, remodeling, repair, or demolition operations and is subject to the provisions of Chapter 16.72. 5. “Debris box service” means collection service in containers without compaction that have a capacity of eight (8) cubic yards or more. Debris boxes may be used for the collection of recyclable and compostable materials, or garbage, and may be used for construction and/or demolition debris that may or may not be intended for full or partial recycling or other waste diversion. 280 6.“Delinquent” means a failure of the recipient of garbage collection service, or of the property owner, to pay when due all charges owed to the garbage collector for garbage collection service rendered or to be rendered. 7.“Director” means the Director of Public Works and his/her duly authorized agents and representatives. 8.“Dwelling” means a residence, flat, duplex, apartment, townhouse, condominium or other facility used for housing one or more persons. 9.“Equipment” means a debrisbox or debris bin and vehicles used to transport debris boxes or bins. 10.“Finance Director” means the Finance Director and his/her duly authorized agents and representatives. 11.“Garbage” means all materials, substances or objects that are discarded, including but not restricted to, materials, substances or objects commonly referred to as “trash,” “garbage,” “refuse” and “rubbish” that are produced, generated or accumulated by all residential, commercial, industrial, institutional, municipal, agricultural and other inhabitants, premises and activities within the City, the collection of which is regulated through the franchise agreement existing between the City and the authorized garbage collector; provided, however, that “garbage” doesnot include (a) hazardousmaterials,(b) recyclable materials, (c) compostable materials, (d) construction and demolition debris, (e) biomedical waste, (f) ash, and (g) sewage and other highly diluted water-carried materials or substances and those in gaseous form. 12.“Garbage collector” means any person or entityauthorized by the franchise agreement between the Franchisee and the City, in accordance with Section 6.24.120of this chapter, to collect, receive, carry, transport, and dispose of any garbage produced, kept or accumulated within the City. 13.“Garbage collection service” means the collection, transportation and disposal of garbage,compostable materials and recyclablesby an authorized garbage collector. 14.“Hazardousmaterials” means any or combination of materials which because of its quantity, concentration, or physical, chemical or infectious characteristics may either: (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed. Hazardous materials includes, but is not limited to, hazardous wastes as defined under California or United States law or any regulations promulgated pursuant to such laws, and all toxic, radioactive, biologically infectious, explosive or flammable waste materials, including any material defined in Section 9.12.020of the Cupertino City Code for which a hazardous materials storage permit is required. 281 15.“Multiple-unit dwelling” or “multiple family dwelling” means any premises, excluding a hotel, motel, or lodginghouse, used for residential purposes containing more than one dwelling unit, irrespective of whether the residency is transient, temporary or permanent. 16.“Nonresidential premises” means all premises except residential premises, including but not restricted to premises used for industrial, commercial, administrative and professional offices, public and quasi-public buildings, utility and transportation. 17.“Occupancy;” “occupied:”Premises are “occupied” when a person or persons take or hold possessionof the premises for permanent or temporary use.For the purposes of determining whether a premises is occupied during periods when garbage collection service is made available to such premises, occupancy shall be presumed unless evidence is presented that gas, electric, telephone and water utility services were not being provided to the premises during such periods. 18.“Owner” means the holder or holders of legal title to the real property constituting the premises to which garbage collection service is provided. 19.“Person” includes any person, firm, association, organization, partnership, business trust, joint venture, corporation, or company, and includes the United States, the State of California, the County of Santa Clara, special purpose districts, and any officer or agency thereof. 20.“Premises” means any land, building or structure, or portion thereof, within the City where any garbage is produced, kept, deposited, placed or accumulated. 21. “Recyclables” or ”Recyclable Material” mean those materials that can be returned to economic use as raw materials for new, reused or reconstituted products, which prior to collection are separated by the generator from other material treated as garbage. Examples of Recyclables include, but are not limited to: newspaper, cans, corrugated cardboard, glass, certain types of plastic, metals, wood, automobile oil, and compostable items such as food and yard waste.“Mixed Recyclables” means more than one type of Recyclable Materialcommingledin a bin, debris box, compactor or other type of container. This material includes, but is not limited to wood, paper, plastic, metals, glass, and other dry waste. The material mustnot have more than 10% putrescible or non-recyclable waste. 22.“Residential premises” means any single-unit dwelling or multiple-unit dwelling. 23.“Single-stream recycling” means a recycling program in which generators place multiple types of recoverable materials in a single container that is designated specifically for recyclables and is taken to a material recovery facility for processing. 24.“Single-unit dwelling” means one or more rooms and a single kitchen, designed for occupancy by one family for residential purposes.Each dwelling unit within a condominium project, duplex, townhouse project or apartment, and each second unit 282 located within a single-family residential zoning district, shall constitute a separate single-unit dwelling to which garbage collection service is provided, unless the owner or occupants thereof arrange for garbage collection service to be provided to all dwelling units upon the premises at commercial rates. 25.“Source Separated Recyclables” means any Recyclables that, prior to collection, are or have been separated or segregated by their generator as to type or category of source material and are or have been placed into separate containers according to type or category, i.e. all metal is separated from other recyclables and placed in its own separate container or separate debris box. 26.“Tenant” means any person or persons, other than the owner, occupying or in possession of a premises. Section 2.SECTION 6.24.035 ADDED. A new Section, Section 6.24.035is hereby added tothe Cupertino Municipal Code to read as follows: 6.24.035Mandatory Recycling A.All new construction and remodeling of existing residential and commercial business structures is required to be designed to adequately store containers for recyclables, compostables and garbage. B.All responsible parties of residential properties are required to subscribe to and maintain mandatory residential recycling servicesfor each individual household in the dwelling. An exception may be granted at the discretion of the City Manager or the City Manager’s designated representative if it is determined there is not sufficient storage space for the containers at the residential property. C.All responsible parties of commercial business properties are required to subscribe to and maintain mandatory commercial recycling services at commercial business properties that generate greater than or equal to four (4) cubic yards of refuse per week. If the franchised hauler transports containers of refuse generated at the commercial business property to a material recovery facility for the purposes of mixed waste processing, thereby separating recyclablesfrom the mixed waste andrecycling the 283 recyclables, the commercial business property will be deemed to be subscribing to recycling services. D.The disposal of garbage in containers designated for compostable material processing or for source separated or single-stream recyclingis prohibited. E.The franchised hauler is prohibited from providing garbage service to responsible parties of commercial business properties subject to the mandatory recycling requirements without providing a recycling program that includes the collection of a container no less than thirty-two (32) gallon capacity, provided by the hauler, at least one time per week. The only exceptions to this requirement are the following: (1)The franchised hauler provides a mixed waste processing program to the commercial business in which refuse containers are taken to a material recovery facility for processing to remove recyclable materials. (2)The franchised haulermay verify the responsible party has been granted an exception to the mandatory commercial recycling program from the City Manager or the City Manager’s designated representative. Section 3.SECTION 6.24.300 AMENDED. Section 6.24.300 of the Cupertino : Municipal Code is hereby amended to read as follows 6.24.300Unauthorized Garbage Collection. No person shall collect any garbage,mixed recyclables, or construction and demolition materials from debris boxes, compactors and bin-by-the-day services, produced, kept or accumulated within the City, unless such person is an agent or employee of the City acting within the course and scope of his employment, or has been awarded a franchise by the City to act as garbage collector.The City shall notifyany person or entity violating this section that the prompt and permanent removal of any collection bin, box or container from the place or premises is required. The City’s franchised hauler may take legal action to protect the exclusive rights granted to the hauler inthefranchise agreement. 284 The following situations are exempt from this section: A) The transporting of garbage or recyclables, by the property owner,that have been generated on thepropertyby the owner of the property or by an individual or entity leasing or renting the property fromthe property owner. B) Collectionofrecyclable materials which have been source separated from other garbage by the generator and which the generator sells ordonates to any other person or organization, or any recyclable materials which have a value equal to or more than the cost of collection. C) Removal of construction, remodeling ordemolition debris as part of a total service offered by the contractor, where the removal is performed by an employee of the contractor usingonlyequipmentowned by the contractor. D) Removal of green waste or plant trimmings by a gardening, landscaping, or tree trimming contractor as an incidental part of a total service offered by that contractor. E) Collection of grease wastes from grease bins, grease traps or grease interceptors. F) Collection of horse manure from residences or non-residential properties. G) Collection of hazardous materials. H) Collection of non-hazardous material that is greater than fifty percent (50%) liquid (including septic tank pumpings, and other liquid wastes). Section 4. Statement of Purpose. This Ordinance is intended to bring the requirements ofChapter 6.24into compliance with the requirements of Assembly Bill 341 (Chesbro) which require multi-family dwellings of five or more units and commercial businesses generating four or more cubic yards of solid waste per week to arrange for recycling services no later than July 1, 2012. In the absence of this amendment, Chapter 6.24 would be inconsistent with the law. Section 5. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. Section 6. Effective Date.This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. Section 7. Certification.The City Clerk shall certify to the passage and adoption of this Ordinance and shall give noticeof its adoption as required by law. Pursuant to Government Code Section36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. 285 INTRODUCED at a regular meeting of the Cupertino City Council the ____day of ______________and ENACTED at a regular meeting of the Cupertino City Council the_____day of _____________by the following vote: VoteMembers of the City Council Ayes: Noes: Absent: Abstain: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 286 ADMINISTRATIVE SERVICESDEPARTMENT CITY HALL 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3220www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject Amend Chapter 9.06 of the Municipal Code, entitled, “Massage Establishments and Services” to conform to changes in state law. Recommended Action Adopt Ordinance No 12.___, entitled, “An Ordinance of the City Council of Cupertino Amending Chapter 9.06 ‘Massage Establishments and Services’to conform to changes in state law.”Thereafter, approve a first reading of Ordinance No. 12.___. Description Ordinance No. 12.____ would revise Chapter 9.06 consistent with the requirements of AB 619. The ordinance also makes minor clarifications ofexisting code sections. Discussion Effective January 1, 2012, AB 619 amended the laws relating to how municipalities may regulate massage businesses and massage practitioners.The proposed ordinance is intended to comply with the requirements of the new state law by making the following changes: Currently the ordinance refers to the “Massage Therapy Organization”, or “MTO”.The ordinance changes such references to reflect the officially codified name of the organization:“California Massage TherapyCouncil” or “CAMTC”.(§ 9.06.020). Currently, the City requires massage businesses to have obtained a “massage establishment license.”Pursuant to AB 619,the city will only require a massage establishment license if at least one of the masseurs at the business does not hold a certificate issued by the CAMTC.(§ 9.06.040). Currently, the City requires each employee managing a massage establishment to hold a city issued “managing employee permit.”Pursuant to AB 619, the city will not require such a permit if the managing employee holds a CAMTC license or owns less than 5% of the business.(§9.06.042). Currently the City conducts background checks dating back 10 years.Pursuant to AB 619,such background checks will be limited to the last 5 years.(§ 9.06.050) 287 Ensures that massage facilities are not treated differently than other professions in a manner that would violate state law.(§ 9.06.193) In addition to the changes required by AB 619, the ordinance also: Changes the education requirements for masseurs.Currently, the city requires masseurs with a City issued license to have met their education requirements at a “recognized school of massage” as defined by the City.Now, education will be sufficient only if it is a “registered school” as defined in California Business & Professions Code §4600.(§§ 9.06.020, 9.06.030).This is intended to streamline enforcement of massage education requirements. Requires a massage establishment licensees to ensure that the certificate of each CAMTC certificate holder has been filed with the city.(See 9.06.193).State law expressly allows a city to require the filing of such certificates with the city. Clarifies language in two code sections to avoid potential ambiguities.(See 9.06.050, 9.06.250). Fee Information A massage establishment permit is $359. A massage therapist permit is $298. There are no fee changes as a result of this ordinance amendment. _____________________________________ Prepared by:Teresa Zueger, Legal Services Manager Reviewed by: Carol Atwood, Administrative Services Director Approved for Submission by:Amy Chan,InterimCity Manager Attachments: Redline draft ordinance 288 ORDINANCE NO. 12- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDINGCHAPTER 9.06 OF THE MUNICIPAL CODE, ENTITLED, “MASSAGE ESTABLISHMENTS AND SERVICES” TO CONFORM TO CHANGES IN STATE LAW The City Council of the City of Cupertino does hereby ordain that Chapter 9.06be amended as follows: 9.06.010Purpose of Provisions. A.It is the purpose and intent of this chapter to provide for the orderly regulation of massage therapists and massage establishments, as defined in this chapter, in the interest of public health, safety and welfare, by providing certain minimum qualifications for the operators of massage establishments and massage therapists.It also is the purpose of this chapter to recognize the voluntary statewide certification of massage therapists and massage practitioners by the California Massage Therapy Council (CAMTC).This chapter is adopted based on the following findings: 1.That the City has recognized the field of massage therapy as a viable professional field; 2.That the City wants to recognize and respect professional massage therapy organizations and qualified professionals that operate consistent with the provisions of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code; 3.The City also finds that the rules and regulations as developed in this chapter strive for equality of all massage organizations and therapists, while attempting to prevent serious objectionable characteristics that massage parlor establishments may have created in the past. B.It is intended that massage therapy is a profession of the healing arts and subject to all zoning ordinances and regulations as may be required for professional uses, consistent with and not preempted by the requirements of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code. C.It is also intended that massage uses not regulated or exempted by this chapter are considered massage parlors, thus regulated by the provisions in Chapter 19.104regulating adult- oriented commercial activities. 9.06.020Definitions. 289 For the purpose of this chapter, unless the context clearly requires a different meaning, the words are termed and phrased as set forth in this section and shall have the meanings given them in this section: A.“CAMTC Certificate” means the certificate issued by the California Massage Therapy Council to massage therapists pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code, and to massage practitioners pursuant to subdivision (b) of Section 4601, or subdivisions (a) or (c) of Section 4604 of California Business and Professions Code Section 4604. B. “Corporate massage” means any massage of the neck, arms, shoulders and back area above the waist, where the client is fully clothed, and that is done without the use of supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice. C.“License” means a license to operate a massage establishment as required by this chapter. .D.“Massage” means any method of pressure on or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands, hot towels or with any mechanical or electrical apparatus or other appliances or devices, with or without such supplementary aides as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations;or by baths, not limited to vapor, electric tub, mineral fomentation, or any other type of bath. E.“Massage establishment” means any licensed establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture, or a combination of individuals engages in, conducts, carries on, or permits to be engaged in, conducted or carried on, for consideration, massages or health treatments involving massage, including but not limited to, any hot tub/sauna, relaxation or tanning establishment in which massage services are made available to clients. F.“Massage practitioner” includes “bodywork practitioner” and “massage and bodywork practitioner,” and means any person who is certified by the California Massage Therapy Council, pursuant to subdivision (b) of Section 4601 of California Business and Professions Code, or subdivisions (a) or (c) of Section 4604 of California Business and Professions Code, and who as the principal function administers massages, baths or health treatments involving massages or baths to another person for any compensation whatsoever. G.“Massage therapist” includes “bodyworker,”“bodywork therapist,” and “massage and bodywork therapist,” and means any person who has been granted a permit pursuant to this chapter, or who is certified by the California Massage Therapy Councilpursuant to subdivision (c) of California Business and Professional Code Section 4601, and who as the principal function administers massages, baths or health treatments involving massages or baths to another person for any compensation whatsoever. 290 H.“Outcall massage service” means the engaging in or carrying on of massage for consideration at a location other than a licensed massage establishment. I.“Permit” means a permit to engage in activities of a massage therapist or massage practitioner or a managing employee as required by this chapter. J-.“Person” means any individual, firm, association, partnership,corporation, joint venture, or combination of individuals. K.“Registeredschool” shall have the same definition as set forth in Business & Professions Code 4600. . L.“Residential massage” means engaging in or carrying on of massage at a residence where the client either owns or rents the residence. 9.06.030Exemptions. A.A massage establishment license or massage therapist permit or CAMTCcertificate shall not be required for the following persons while engaging in the performance of the duties of their respective professions: 1.Physicians, surgeons, chiropractors, osteopaths, naturopaths or podiatristswho are duly licensed to practice their respective professions in the State of California, while performing activities encompassed by such professional licenses; 2.Massage therapists or massage practitioners while performing massage in the offices of a licensed physician, surgeon, chiropractor, osteopath, naturopath or podiatrist, and while under the direct supervision and medical recommendation of such licensed medical professional; 3.Nurses (registered or licensed vocational), occupational therapists, or physical therapists who are duly licensed to practice their professions in the State of California, while performing activities encompassed by such professional licenses; 4.Trainers of any amateur, semiprofessional or professional athlete or athletic team; 5.Barbers or cosmetologists, who are duly licensed under Division 6 of the State of California’s Business and Professions Code, performing a massage within the scope of the license and for whichno separate or increased prices are charged; provided such massage is limited to the scalp, face, neck, arms, hands, lower limbs below the knees, ankles and feet; 6.State-licensed hospitals, nursing homes, sanitariums, physiotherapy establishments or other state-licensed physical or mental health facilities and their employees; 7.Acupuncturists who are duly licensed to practice their professions in the State of California, while performing activities encompassed by such professional license.Any state- 291 licensed acupuncturist who provides massage services by any person not licensed as an acupuncturist must obtain a massage establishment license as prescribed by this chapter. 8.Registeredschools and their students in training, provided such students provide massage therapy only to fellow students or volunteers while under the direct supervision of an instructor; 9.Persons who possess a valid CAMTC certificate and who are practicing consistent withthe qualifications established by such certificate; 10.Massage businesses or establishments as defined under paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, except that such businesses and establishments shall not be exempt from this chapter to the extent Section 4612 expressly permits the regulation of such businesses or establishments by local ordinance. B.Massages that are clearly incidental to the operation of a personal fitnesstraining center, gymnasium or health club, or that are offered in conjunction with a hotel, may be permitted through the use permit for those operations as required in Chapters 19.56and 19.72of the Cupertino Municipal Code.A massage establishment license is not required for the aforementioned businesses.The massage therapist or massage practitioner operating in this category will, however, be required to comply with the requirements of this chapter. C.This chapter shall not apply to individuals administering massages or health treatment involving a massage to persons participating in singular-occurring recreational events, provided the following conditions are met. 1.Massage services are made equally available to all participants in the event; 2.The event is open to participation by the general public or a significant segment of the public, such as employees of sponsoring or participating corporations; 3.The massage services are provided at the site of the event, either during, immediately preceding or immediately following the event; 4.The sponsors of the event have been advised of and have approved the provisions of massage services; 5.The persons providing the massage services are not the primary sponsors of the event. 9.06.040Massage Establishment License, Massage Therapist Permit and Managing Employee Permit–Required. A. It is unlawful for any person to engage in, conduct or carry out, in or upon any premises within the City, the operation of a massage establishment without a massage establishment license obtained from the City Manager.In addition to a City business license, a separate 292 establishment license shall be obtained for each separate massage establishment operated by such person.A massage establishment license shall be issued to any person who has complied with the requirements of this chapter and all other applicable provisions of this code, unless grounds for denial of such license exist.The possession of a valid massage establishment license does not authorize the possessor to perform work for which a massage therapist permit or CAMTC certificate is required.It is unlawful to operate, establish or maintain a massage establishment while the license issued for such business has been suspended, revoked, or has expired.No additional applications for licenses will be accepted for locations that are in the appeals process, until the existing license has expired, has been revoked, or has been surrendered by the applicant. B. Notwithstanding any other provision in this Chapter to the contrary, requirements to obtain a massage establishment license shall not apply to any massage establishment that employs or uses only persons hwo are certified pursuant to Chapter 10.5 (commencing with section 4600) of Division 2 of the Business and Professions Code to provide massage for compensation. Such establishments must still obtain a business license. 9.06.041Massage Therapist Permit or MTO Certificate Required. It is unlawful for any person to engage in, conduct or carry out the duties of a massage therapist or massage practitioner unless exempted by Chapter 9.06.030, without first obtaining a massage therapist permit or CAMTCcertificate. 9.06.050Massage Establishment License, Massage Therapist Permit and Managing Employee Permit–Application. Applications for massage establishment licenses, massage practitioner or massage therapist license, shall be filed with the City Manager.Within sixty working days following receipt of the completed application, the City Manager shall either issue the license/permit or mail a written statement of the reasons for denial thereof by certified mail.When necessary, the City Manager or his/her designee may extend the time in order to conduct a complete investigation.The application shall set forth the exact nature of the massage, bath or health treatment to be administered, and the location of the proposed place of business and facilities thereof.Each applicant is required to furnish fingerprints for the purpose of establishing identification and/or criminal record.In addition, each applicant shall furnish the following information: 1.The full name, including any nicknames or other names used presently or in the past, and the present street address and phone number of the applicant’s residence; 2.The previous address of the applicant for a period of three years immediately prior to the date of the application and the dates of each residence; 3.The applicant’s date of birth; 293 4.The applicant’s height, weight and color of eyes and hair; 5.License number and/or state identification number (if any) and Social Security number, 6.The applicant’s two most recent employers, including their names, street addresses, cities and phone numbers, and the position of the applicant; 7.The names, street addresses and phone numbers of any massage establishment or any other business involving massage, relaxation, or other related business by which the applicant has been employed within the past ten years, and the dates of employment; 8.Any criminal conviction on the part of the applicant for offenses other than traffic violations within fiveyears preceding the date of the application; 9.Whether the applicant has ever hada license, certificate, permit, or other authorization to engage in the practice of massage or related business; whether the operation of a massage establishment, or other business engaged in the practice of massage, was suspended or revoked within the ten years preceding the date of the application, and dates and reasons for any such suspensions or revocations, and the name and location of the jurisdiction or agency that suspended or revoked such license, certificate, permit or other authorization; 10.Whether the applicant, including applicant as a member of a corporation, business, or partnership, has ever operated or been employed at any business that has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions.If the applicant has previously worked at such a business, he/she should state on the application the name and address of the business, the dates on whichthe applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number, and the outcome of the abatement action; 11.If the applicant is a partnership, the application shall set forth the names and street addresses of each general and limited partner; 12.If one or more partners are a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter,together with the state and date of incorporation, and the full legal names and street addresses of each of its current officers and directors; 13.Whether the applicant has met the educational requirements set forth in this chapter (except for cases involving applications for massage establishments or managing employee permits, when the applicant has filed a statement under penalty of perjury that he/she will not personally give massages at the massage establishment); 294 14.Whether the applicant has previously applied to the City for a massage establishment permit, managing employee permit, or massage therapist permit, the date of the application and every name(s) under which the application was made; 15.In the case of an application for a massage establishment permit or managing employee permit, the proposed name and street address of the massage establishment, together with the name and street address of any other massage business operated or managed by the applicant, within the ten years preceding the date of the application; 16.In the case of an application for a massage establishment license or managing employee permit, whether the applicant intends to personally provide massage services at the business; 17.A statement under penalty of perjury that the applicant has not made any false, misleading, or fraudulent statements or omissions of fact in his/her application or any other documents required by the City to be submitted withthe application; 18.The name and street address of the owner or renter and the lease holder of proposed premises of which application is made; 19.Acknowledgment by the applicant that any information contained within the application that may change during the validity of the permit or license will be provided to the City to maintain current records; 20.Authorization for the City, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and responsible managing officer; 21.Such other information as may be deemed necessary by the City Manager. 9.06.055Massage Establishment License, Massage Therapist Permit and Managing Employee Permit–Submittal of Documentation. Applicants shall also submit the following information at the time of their application: A.A copy of an acceptable formof picture identification such as a driver’s license or state identification card; B.Two recent identical color photographs of the applicant (similar to passport photographs); C.Documentation to prove that the applicant has a lawful right to work in the United States; D.Such other information as may be deemed necessary by the City Manager, 295 E.In the case of an applicant for a massage therapist permit, a certificate from a physician, which includes the physician’s street address and phone number, and states that the applicant is free from communicable diseases or other conditions that could interfere with his/her ability to engage in the practice of massage, to the public, in a safe and healthful manner.Communicable disease testing is required for hepatitis B and tuberculosis.The medical exam must have been completed within sixty days of the permit application; F.In the case of an applicant for a massage therapist permit, a diploma, certificate of graduation, transcripts, or other written proof acceptable to the City Manager or his/her designee that the applicant has met the educational requirements set forth in this chapter. (Ord. 2046, (part), 2009) 9.06.060Massage Establishment License, Massage Therapist Permit and Managing Employee Permit–Application Fee. Any application for a license to operate a massage establishment and/or a massage therapist permit and managing employee permit shall be accompanied by a nonrefundable fee, as established by resolution of the City Council.The application fee shall be used to defray the cost of investigation and report, and is not made in lieu of any other fees or taxes required by the Cupertino Municipal Code.The application fee shall be paid at the time the application is submitted. (Ord. 2046, (part), 2009) 9.06.065Massage Establishment License, Massage Therapist Permit and Managing Employee Permit–Expiration and Renewal. A massage establishment license, massage therapist permit, and a managing employee permit shall expire three hundred sixty-five days from the date of issue and must be renewed every year.A renewal fee will be assessed for each permit being renewed.Applications for the renewal of establishment licenses must be submitted to the City Manager or his/her designee no later than sixty days prior to the expiration of such license or permit.There shall be no grace period for a massage establishment license, massage therapist permit, or managing employee permit should the aforementioned be allowed to expire. (Ord. 2046, (part), 2009) 9.06.070Massage Establishment License, Massage Therapist Permit and Managing Employee Permit–Grounds for Denial. A massage establishment license, a massage therapist permit or a managing employee permit may be denied by the City Manager if one or more of the following are found: A.That the applicant made a material misstatement in the application for a license and/or permit; 296 B.That the applicant or any officers or directors of the applicant has been convicted of: 1.An offense that requires registration pursuant to California Penal Code Section 290, or a violation of Penal Code Sections 266(I), 311 through 311.7, 314, 315, 316, 318, 647(b) or (d), or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4; 2.A prior offense that involves violation of California Health and Safety Code Sections 11351, 11352, 11358 through 11363, 11378 through 11380, 11054, 11056, 11057, 11058, any other violation(s) involving illegal possession for sale, or sales of a controlled substance, or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4; 3.Any offense involving the use of force or violence upon another person; 4.Any offense involving sexual misconduct with children; 5.Any offense involving theft. C.That the operation of a massage establishment as proposed by the applicant, if permitted, would not comply with all applicable laws, including but not limited to, all City ordinances and regulations; D.That the operation of the proposed massage establishment is likely to be a hindrance to the health, safety, welfare or interest of the people of the City; E.That the applicant is lacking in the background qualifications to conduct a bona fide massage establishment; F.That the applicant has violated any provision of this chapter or any similar law, rule or regulation of another public agency that regulates the operation of massage establishments. (Ord. 2046, (part), 2009) 9.06.080Massage Establishment Employees–Permit Requirements. It is unlawful for any licensed massage establishment or managing employee to allow any person to perform massage, bath or health treatment for any compensation unless the person holds a valid massage therapist permit or CAMTCcertificate. 9.06.110Massage Therapist Permit–Criteria for Issuance. A massage therapist permit shall be issued to a person who meets the following criteria: A.Is a member in good standing of a state or nationally chartered organization devoted to the massage specialty and therapeutic approach; and 297 B.Has completed one the following requirements: 1.Five hundred hours of instruction in a massage specialty and therapeutic approach at aregisteredschoolof massage; 2.Two hundred fifty hours of such instruction and an additional five hundred documented hours of practical experience in a massage specialty and therapeutic approach in one or a combination of the following: a.A primary office of and under the direct supervision of a medical professional licensed by the State of California, specifically a physician, surgeon, chiropractor, osteopath, physical therapist or nurse, while such medical professional is performing activities encompassed by such license and is physically on the premises where the massage therapy is being administered; 3.Has taken and successfully passed the National Certification Board for Therapeutic Massage and Bodywork or the National Certification Commission for Acupuncture and Oriental Medicine test module related to Asian Bodywork Therapy.The applicant must submit a current certificate with the application to satisfy this criteria. 9.06.120Massage Therapist Practical Examination. The applicant shall take and pass a written test and practical performance examination administered through a medical practitioner approved by the City of Cupertino, wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene and massage.If the applicant fails the practical exam, he/she shall be permitted to retake the exam once, after at least thirty but no more than sixty days have elapsed from the date of the first exam, provided that the applicant pays the applicable exam fees for a second time.Should the applicant fail the exam a second time, the application shall be denied, and the applicant shall not be permitted to apply again for a massage therapist permit for a period of one year.Applicants, who have taken and successfully passed the National Certification Board for Therapeutic Massage and Bodywork or the National Certification Commission for Acupuncture and Oriental Medicine test module related to Asian Bodywork Therapy, shall be exempted from the Massage Therapist Practical Examination.The applicant must submit a current certificate with the application to be exempt.This section does not apply to anyone possessing an CAMTC certificate. 9.06.160Annual Medical Examination for Massage Therapist. A.Any person who has been issued a massage therapist permit shall file with the City Manager each year, within sixty days of the anniversary date of the issuance of the permit, an updated certificate from a medical doctor, stating that the permittee massage therapist has, within sixty days immediately prior to the filing of the certificate, been examined and been found to be free of any contagious or communicable disease set forth in Section 9.06.055E. 298 B.It is unlawful for any person who has neglected, failed, or refused to file a certificate required by subsection A of this section to act as a massage therapist.Failure to submit the required certificate shall be grounds for revocation of the permit. C.Individuals who possess an CAMTCcertificate are not subject to annual medical examination. 9.06.180Outcall Massage Permit–Application. An outcall massage permit may be issued only to a Cupertino-licensed massage therapist or person in possession of an CAMTCcertificate.An applicant for an outcall massage permit must provide a list of all businesses and residences where the applicant will be performing outcall massage, and must keep the City Manager, or his/her designee, advised in writing of changes to said list. (Ord. 2046, (part), 2009) 9.06.190Outcall Massage Permit–Criteria. Outcall massage may be performed only under the following criteria: A.Corporate. 1.The massage treatment shall consist of “corporate” massage only as defined in Section 9.06.020; 2.Outcall “corporate” massage clients shall be owners and employees of the business at which the massage therapist will be performing massage. B.Residential.Any resident may engage the services of a massage practitioner or massage therapist in the resident's home. (Ord. 2046, (part), 2009) 9.06.193Operating Requirements for Massage Establishments. Unless otherwise specified in this chapteror preempted by state law,including any applicable provisions of Business & Professions Code 4612,all massage establishments shall comply with the following operating requirements: A.Exterior Signs.A recognizable and legible sign shall be posted at the main entrance identifying the business as a massage establishment.In addition, the sign shall comply with the City sign ordinance. B.Posting of and Filing of Each Massage Establishment License, Massage Therapist Permit, Managing Employee Permit and CAMTC Certificate.A copy of the massage 299 establishment license, massage therapist permit(s), managing employee permit(s), and CAMTC certificate(s) shall be posted in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment.No massage establishmentshall allow any party to provide any massage services within the establishment pursuant to a CAMTC certificate unless such certificate has been filed with the City. C.(Reserved). D.Posting of Services Available and Fees.A list of all services available, the price thereof and the length of time each service shall be performed, shall be posted or available in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment.No other services, otherthan those posted, shall be provided. E.Payment/tips.Payment for massage services, and any tips, shall be paid for at the designated reception area of the business establishment. F.Alcohol Prohibited.No alcoholic beverages may be located on the premises of the massage establishment while the business is open for the practice of massage. G.Maintain Written Records.Every massage establishment shall keep a written record of the date and hour of each service provided, the name and address of each patron and the service received, and the name of the massage therapist administering the service.Such records shall be open to inspection only by officials of the City charged with enforcement of this chapter.These records may not be used for any other purpose than as records of service provided, and may not be provided to other parties by the massage establishment or service unless otherwise required by law.Such records shall be retained on the premises of the massage establishment for a period of two years. H.Standard of Dress for Massage Establishment Employees.The holder of the massage establishment permit, massage therapists, massage practitioners, managing employees, and all other employees of the massage establishment shall remain fully clothed in clean outer garments while on the premises of the massage establishment.At a minimum, such clothing shall be made of nontransparent material and shall not expose the buttocks, genital area or breasts of any employee or permit holder at any time. I.Operating Hours.No massage establishment shall be kept open for business and no massage therapist or massage practitioner shall administer massages after the hour of ten p.m. or before the hour of seven a.m.Operating hours may be further restricted by the City Manager pursuant to Section 9.06.200. J.Mirrors Prohibited.In general, mirrors are prohibited in rooms where massages are performed; however, one full length or small mirror may be mounted vertically to the wall, not less than twenty inches from the floor. 300 K.Lighting Required.Massage establishments will be well-lighted at all times during business hours.Rooms where massage services are provided will be adequately lighted when occupied. ( 9.06.196Massage Establishment Sanitary Conditions–Condition of Premises. A.Required Maintenance of Massage Establishment.All premises and facilities of the massage establishment shall be maintained in a clean and sanitary condition and shall be thoroughly cleaned after each day of operation.The premises and facilities shall meet applicable code requirements of the city, including but not limited to, those related to the safety of structures, adequacy of the plumbing, heating, ventilation, and waterproofing of rooms in which showers, water, or steam baths are used. B.Linens.All massage establishments shall provide clean laundered sheets, towels, and other linen in sufficient quantity for use by their clients.Such linens shall be laundered after each use and stored in a sanitary manner.No common use of linens or towels shall be permitted.Heavy white paper may be substituted for sheets on massage tables, provided such paper is used only once for each client and is then discarded into a sanitary receptacle. Containers shall be provided for the storage of all soiled linens. C.Privacy Standards for Massage Rooms, Dressing Rooms, and Restrooms.Dressing rooms and restrooms may only be used by clients of the same sex at the same time.The massage establishment shall provide doors for all dressing rooms and massage rooms.Draw drapes, curtain enclosures, or accordion-pleated enclosures are acceptable in lieu of doors for dressing rooms and massage rooms. (Ord. 2046, (part), 2009) 9.06.198Prohibited Acts. A.Touching of Sexual and Genital Parts of Client During Massage.No holder of a massage establishment license, massage therapist permit, CAMTCcertificate, managing employee permit, or any other employee of a massage establishment shall place either his/her hand or hands upon, or touch with any part of his/her body, or with a mechanical device, a sexual or genital part of any other person in thecourse of a massage, or massage a sexual or genital part of any other person.Sexual and genital parts shall include the genitals, pubic area, anus, or perineum of any person. B.Uncovering and Exposure of Sexual and Genital Parts of Client Before, During or After Massage.No holder of a massage establishment license, massage therapist permit, CAMTC certificate, managing employee permit, or any other employee of a massage establishment shall uncover and expose the sexual or genital parts of a client or themselves while engaged in the practice of massage, or before or after a massage.This subsection does not prohibit a client from turning over in the course of a massage, provided the massage therapist holds a towel, sheet, 301 blanket, or other drape over the client to protect his/her genital and sexual parts from exposure. If the client exposes the genital area, the massage therapist or massage practitioner shall immediately direct the client to cover him/herself.If the client refuses to comply,the massage therapist or massage practitioner shall inform the client that no further massage will be provided and the client will be asked to leave the premises.If the client refuses to leave the premises, the massage therapist or massage practitioner must immediately leave the room and notify the managing employee. C.Outcall Massage Services.It is unlawful for any massage establishment, massage therapist or massage practitioner to provide outcall massage services that are not in conformance with the provisions of Section 9.06.190. D.Transfer of Massage Establishment License, Massage Therapist Permit and Managing Employee Permit.No permit issued pursuant to this chapter shall be transferred or assigned in any matter, whether by authorization of law or otherwise, from any location to location or from personto person, except that a person possessing a massage therapist permit, issued by the City, shall be able to move from one employer to another without filing a new application or paying a new fee, so long as the permit holder notifies the City Manager or his/her designee, in writing, of the change in his/her employment within five business days of such change.Failure to make this notification within five business days shall be grounds for suspension, revocation, or denial of the permit. 9.06.200Suspension or Revocation–Grounds. Any license or permit issued under this chapter may be suspended or revoked by the City Manager for any reason that would have originally justified the refusal to grant a license or permit. (Ord. 2046, (part), 2009) 9.06.210Suspension or Revocation–Notice–Hearing. The holder of the license or permit shall be given prompt notice of revocation or suspension of the license or permit and shall immediately desist from engaging in the activity.The notice shall fix a time and place, not less than five or more than thirty days after service thereof, at which time the holder of the license or permit may appear before the City Manager and be granted a hearing upon the merits of such suspension or revocation.If after such hearing the license or permit is ordered revoked, the holder shall have the right to appeal such action to the City Council in accordance with Section 9.06.220of this chapter. (Ord. 2046, (part), 2009) 9.06.220Appeals. Any person whose license or permit has been denied, suspended or revoked may appeal the administrative decision of the City Manager, or designated representative, by filing a written 302 notice of appeal with the City Clerk within five working days after receipt of notice of the decision.Such appeal shall be heard by the City Council, which may affirm, amend or reverse the order, or take other action deemed appropriate.The Clerk shall give written notice of the time and place of the hearing to the appellant and any other person requesting notice.In conducting the hearing, the City Council shall not be limited by the technical rules of evidence. Any person requesting an appeal shall pay a nonrefundable fee set forth in the City fee schedule at the time of filing the appeal. (Ord. 2046, (part), 2009) 9.06.230Inspection by Officials–Premises. Any and all investigating officials of the City shall have the right to enter massage establishments, from time to time during regular business hours, to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations, and to ascertain compliance with the provisions of this chapter.A warrant shall be obtained whenever required by law. (Ord. 2046, (part), 2009) 9.06.240Violation–Public Nuisance. Violation of any provision of this chapter constitutes a public nuisance, which may be abated pursuant to Chapter 1.09of the Cupertino Municipal Code. (Ord. 2046, (part), 2009) 9.06.250Violation–Penalty. Any violation of this chapter shall be enforced as provided in Chapter 1.12 and/or Chapter 1.10of the Cupertino Municipal Code. ( 9.06.260Continuing Violations–Alternative Remedies. Nothing in this chapter shall be deemed to prevent the City Council from directing the City Attorney to commence civil action to enjoin the continued violation of any provision of this chapter or to abate a nuisance, as an alternative, or in conjunction with any other civil or criminal proceedings provided for herein. (Ord. 2046, (part), 2009) INTRODUCED at a specialmeeting of the Cupertino City Council the 1stday of May, 2012 and ENACTED at a regular meeting of the Cupertino City Council this ____day of ____, 2012 by the following vote: 303 VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 304 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 1, 2012 Subject McClellan Ranch Master Plan 2012 Updateand Namingof McClellan Ranch. Recommended Action Formalize the City Council’s conclusions, reached through a “straw vote,”on April 3, 2012 and approvethe Parks and Recreation Commission’s recommendations to: 1.Adopt the McClellan Ranch Master Plan 2012Update; 2.Direct staff to includeits priority capital improvement projects in the 2012-17 Capital Improvement Program as appropriate; 3.Adopt a resolution changingthe name ofMcClellan Ranch Park to “McClellan Ranch Preserve”; 4.Adopt a resolution renamingthe Simms property as“McClellan Ranch West”; however no change in the parcel’s zoningor statuscan take place untilauthorized by a future City Council action. Discussion On April 3, 2012 the City Council considered the draft Master Plan 2012 Update and the Commission’s recommendations toadopt themaster planupdateand rename the property. During the discussion, Council members noted that decisions regarding future buildings or programs at McClellan Ranchor the Simms property couldpotentially affect other City lands along the creek corridor,such as the Stocklmeir property,orvice versa.They suggested joint consideration of the creek corridorpropertiesbefore pursuing adding new buildingsor relocating existing ones. The Director of Parks and Recreation agreed to prepare a summary forthe City Council of the pertinent task force recommendations and City Council decisions that affect the involved parcels. In general the City Council found that the draft master plan update was appropriateand warranted endorsement.One area of refinement was the ranking of potential capital improvement projects into tiers. The City Council members took a “straw vote” and modified the draft rankings as noted in Attachment B(McClellan Ranch Master Plan 2012 Update, Potential CIP Projects by Category).Among the changes weremoving the Blacksmith Shop and Environmental Education Centerprojectsto Tier 2.That change was consistent with the City Council’s interest in considering city-owned creek corridor property beyond McClellan Ranch before implementing major building projects. Another change was upgrading the Historical 305 Assessment of McClellan Ranch structures to Tier 1 and removing the Snyder Hammond home from the scopeof the assessment. This latter change included a request that the Cupertino Historical Society, which owns the Snyder Hammond home, perform its own evaluation of the structure. The narrative and Appendix G of the March 1 draft master plan have been updated to incorporate the City Council’s discussion and straw vote on April 3 (see Attachments Aand B). Adoption of the attached McClellan Ranch Master Plan 2012 Update is now recommended. A final discussion topic was the possible re-naming of McClellan Ranch Park and the Simms property. Per the straw voteon April 3, the City Council unanimously endorsed changing the name of McClellan Ranch Park to “McClellan Ranch Preserve.”McClellan RanchPark was designated as a Nature and Rural Preserve under City Ordinance No. 710enacted in 1976. An associated portion of the City’s municipal code governs it—under municipal code section 13.04.201, its uses are limited to “those which will maintain and protect the ecology of the area, conserve the natural features and scenic values, expand community awareness and understanding of natural history and the environment, and provide enjoyment of the resources consistent with their preservation.” McClellan Ranch Park is further restricted bygrants that were used to help pay for acquisition and help improve the property. They require that the land be kept as open space/public park space and provide outdoor public recreation. The Simms property name was recommended to be changed to“McClellan Ranch West.” Per the straw vote, the majority of the Council favored this change.The Simms property is currently zoned as R1-10 (residential) and has not been formally annexed to McClellan Ranch Park. The provisions of Cupertino Municipal Code Section 13.04.201, which designate McClellan Ranch Park as a Nature and Rural Preserve, arenot applied to the Simms property by this renaming. Renaming the Simms property does not change any rights, obligations or restrictions that may currently apply to the property nor does it confer any new ones.No change in the parcel’s zoning or status can take place until authorized by a future City Council action. Sustainability Impact Adoption of the McClellan Ranch Master Plan 2012 Update will identify project priorities and provide information that helpssupport the nature preserve and its mission. Fiscal Impact Any actionsto authorize capital improvement projects recommended in the document would be considered by the City Council during the regularannual budget review and capital improvement program review process. _____________________________________ Prepared by:Gail Seeds, Park Restoration and Improvement Manager Reviewed by:Timm Borden, Director of Public Works Department Mark Linder, Director of Parks and Recreation Approved for Submission by:Amy Chan,Interim City Manager 306 Attachments: A.McClellan Ranch Master Plan 2012 Update, May 1, 2012 B.Appendix G, “Potential CIP Projects by Category,”McClellan Ranch Master Plan 2012 Update C. Resolution approving the name change of McClellan Ranch Park to McClellan Ranch Preserve D. Resolution approving the name of McClellan Ranch West for the property commonly known as the Simms Property 307 ATTACHMENTA 308 McCLELLAN RANCH MASTER PLAN 2012 UPDATE May 1, 2012 Table of Contents I.Executive Summary 1 II.Goals 1 III.Process Summary 1 A.1993 McClellan Ranch Park Master Plan Goals B.Community Input IV.Results and Recommendations 4 V.Conclusion 7 VI.Appendices 7 A.McClellan Ranch Park Master Plan, May 1993 B.CEQA Document Highlights & Accomplishments to Date 2006 Stevens Creek Corridor Master Plan and Restoration Plan C.McClellan Ranch Park Programs & Participation D.Buildings and Site Features information sheets E.Community Input from Nov. 3, 2011 meeting F.Community Input from Nov. 3, 2011 meeting & staff suggestions - Non-CIP Projects G.Potential CIP Projects by Category H.Evaluation sheets for Potential CIP Projects I.Community input from Feb. 2, 2012 meeting J.Site Map i 309 McCLELLAN RANCH MASTER PLAN - 2012 UPDATE I.Executive Summary In 2011, the Cupertino Parks and Recreation Department, in conjunction Department, sought public input on potential Capital Improvement Program (CIP) projects at McClellan Ranch Park in order to develop a prioritized list of recommendations to inform the budget planning and decision making process for 2012 and beyond. II.Goals The process was initiated to confirm and establish a McClellan Ranch Master Plan 2012 Update prioritized set of recommendations for Capital Improvement Program (CIP). The recommendations could then be used to inform the Park 2012 budget planning and related decision making, as well as future budgeting cycles. The 2012 Update process used the recommended goals and objectives documented in the existing (1993) as a starting point. McClellan Ranch Park Master Plan Community input was sought in order to validate the 1993 Master Plan recommendations, identify potential new projects, and obtain feedback on the rela options being considered. Staff suggestions were also added to the list. Evaluation criteria were then used to assess and prioritize potential projects. The resulting recommendations along with the related background material are provided in this document. The Parks and Recreation Commission then used this material to confirm their own recommendations for CIP proje the Cupertino City Council for the Counc consideration and approval. III.Process Summary McClellan Ranch Park is a well used and beloved local amenity. INature and Rural Preserve and home to historic agricultural structures makes it unique among the many parks in Cupertino. There is also a remarkable diversity of programs and people who rely on and enjoy - 1 - 310 the park, including school children, college students, 4-H club members, gardeners, bird watchers, local walkers, and many more. (See Appendix C for further details on current programs and uses at the site.) McClellan Ranch has benefited over the years from the volunteer efforts and thoughtful input of numerous citizens, including the extensive work captured in the 1993 (MRPMP), as well as a 2006 Stevens McClellan Ranch Park Master Plan Creek Corridor Master Plan and Restoration Plan plus related environmental clearance documents, and 2009 Simms Task Force recommendations. The recommendations found in t document are based on the results of these earlier efforts, as well as the input from staff, two Parks and Recreation Commission community study sessions in November 2011 and February 2012, and a subsequent regular Parks and Recreation Commission m. McClellan Ranch Park Master Plan 1993 Goals The 1993 included six overarching goals: McClellan Ranch Park Master Plan Goal I: Foster stewardship of the earth by providing environmental education, leadership, and resources Goal II: Protect and preserve for the people of Cupertino the natural habitat and rural property Goal III: Utilize this rare riparian environment for enjoyment and study Goal IV: Share the rich history of this site with the community Goal V: Provide appropriate care and management for the site and structures Goal VI: Identify mechanisms to fulfill the stated goals Objectives for each goal were also listed and can be found in Ap objectives were used as a starting point for the community input sessions and are an impor basis from which the current recommendations for CIP projects were developed. Community Input At the first public Parks and Recreation study session on November 3, 2011 background rd information about McClellan Ranch Park, the current programs it supports, and the MRPMP were reviewed. General feedback was solicited from the stakeholders who attended, as well as - 2 - 311 312 313 314 and cultural resources and create opportunities for education, r- On April 3, the City Council considered the draft master plan up and Recreation Commission, and the Co the properties. The City Council found that the draft master plan update in general was appropriate and warranted endorsement. One area of refinement w capital improvement projects into tiers. T and modified the draft rankings. Among the changes were moving the Environmental Education Center projects to Tier 2. That action was consistent with interest expressed by Council members in considering city-owned creek corridor property beyond McClellan Ranch before implementing major building projects. An the Historical Assessment of McClellan Ranch structures to Tier Hammond home from the scope of the assessment. This latter change inclu the Cupertino Historical Society, which owns the Snyder Hammond evaluation of the structure. Parking was moved to Tier 3, since the appropriate scope and solutions were deemed to involve decisions regarding Tier 1 and 2 projects. -name McClellan Ranch Park and the Simms property. Those actions are not a necessary part of the Master Plan Update but are related to it. On April 3, the City Council endorsed changing the name and endorsed naming the Simms property The associated discussion noted that changing the name of the Simms property would not confer any further requirements on the parcel or change its status, and that a future action would be required by the City Council in order to do so. - 6 - 315 V.Conclusion Based on the validated goals of the 1993 , community and staff McClellan Ranch Park Master Plan input, and evaluations of the necessity, cost, positive impact, , the Parks and Recreation Commission recommended incorporating the Tier 1 and 2 projects into the five year Capital Improvement Program being prepared in 2012 and the following budget cycles as may be required. Those projects listed under Tier 3 should be reevaluated in future years in order to determine whether progress on Tier 1 and/or Tier 2 CIP necessitates further action and/or whether further funding sources are available. Based on inclusion of refinements to the draft document discusse incorporated, the City Council acted on May 1, 2012 to adopt the McClellan Ranch Master Plan 2012 Update. VI.Appendices A.McClellan Ranch Park Master Plan, May 1993 B.CEQA Document Highlights & Accomplishments to Date 2006 Stevens Creek Corridor Master Plan and Restoration Plan C.McClellan Ranch Park Programs & Participation D.Buildings and Site Features information sheets E.Community Input from Nov. 3, 2011 meeting F.Community Input from Nov. 3, 2011 meeting & staff suggestions - Non-CIP Projects G.Potential CIP Projects by Category H.Evaluation sheets for Potential CIP Projects I.Community input from Feb. 2, 2012 meeting J.Site Map - 7 - 316 ATTACHMENTB APPENDIX G Potential CIP Projects by Category 317 McClellan Ranch Master Plan 2012 Update Potential CIP Projects by Category May 1, 2012 TIER ONE PROJECTS New Structure Outdoor Gathering Shelter $$ - $$$ Renovate / Evaluate Existing Structure $$ McClellan Barn Evaluation & Renovation Plan $$ Historical Significance Assessment, McClellan Ranch structures (does not include Snyder Hammond home to be evaluated by Historical So Infrastructure / Support Facility $$ Develop Signage Program TIER TWO PROJECTS New Structure $$$$ Environmental Education Center Renovate / Evaluate Existing Structure $$$ Blacksmith Shop Relocation & Renovation Habitat & Creek Restoration $$$Repair Creek Access Area & Creek Bank seek grant funding $ - $$ Creek Corridor Restoration at McClellan Ranch, near-term actions seek grant funds TIER THREE PROJECTS Recommended for future consideration Manage Parking Renovate Central [Bleachers] Area Improvements at McClellan Ranch West / former Simms property Extensive Creek Restoration Possible Restroom Building Estimated budget range $ = >$15K, < $50K $$ = >$50K, < $100K $$$ = > $100K, < $500K $$$$ = > $500K 318 ATTACHMENTC RESOLUTION NO. 12- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE NAME CHANGE OF McCLELLAN RANCH PARK TO McCLELLAN RANCH PRESERVE WHEREAS, in 1972 the City of Cupertino purchased the property now known as McClellan Ranch Park, and WHEREAS, on January 5, 1976 the City Council of the City of Cupertino adopted Ordinance 710 which added provisions to Chapter 13.04 of the Cupertino Municipal Code providing for a Nature and/or Rural Preserve park designationcategoryand designated McClellan Ranch Park as a Nature and Rural Preserve; and WHEREAS, on June 21, 1993 the City Council of the City of Cupertino approved the McClellan Ranch Park Master Plan documents;and WHEREAS, on April 3, 2012 the City Council of the City of Cupertino considered a recommendation by the Parks and Recreation Commission to change the name of McClellan Ranch Park to reflect its special status as a Preserve and its designationas such under Cupertino City Code section 13.04.201; NOW, THEREFORE, BE IT RESOLVED: That the City Council of the City of Cupertino hereby approves changing the name of McClellan Ranch Park to McClellan Ranch Preserve. PASSED AND ADOPTED at a regular meeting of the City Council ofthe City of Cupertino this ___1st___ day of __May___, 2012, by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 319 ATTACHMENT D RESOLUTION NO. 12- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE NAME OF McCLELLAN RANCH WEST FOR THE CITY-OWNED PROPERTY AT 22241McCLELLAN ROAD COMMONLY KNOWN AS THESIMMS PROPERTY OR SIMMS ADDITION WHEREAS, on November 20, 1989the City Council of City of Cupertino authorized execution of an agreement for purchase of real property known as the Simms Property and accepted a grant deed for said property; and WHEREAS, the purchase was acknowledged as being in accordance with the Open Space Element of the City of Cupertino General Plan; and WHEREAS, on June 21, 1993 the City Council of the City of Cupertino approved the McClellan Ranch Park Master Plan documentswhich addressed recommendations for the Simms property consistent with the goals and objectives for McClellan Ranch Park; and WHEREAS, on August 4, 2009 the City Council of the City of Cupertino endorsed a recommendation by the Parks and Recreation Commission to integrate the Simms addition into the McClellan Ranchnature preserve; and WHEREAS, the Simms property is currently zoned as R1-10 (residential) andhasnot been formally annexed to McClellan Ranch Park; and WHEREAS, the provisions of Cupertino Municipal Code Section 13.04.201, which designate McClellan Ranch Park as a Nature and Rural Preserve, are not applied to the Simms propertyby this renaming; and WHEREAS, changing the name of the property does not change any rights, obligations or restrictions that may currently apply to the property nor does it confer any new ones; NOW, THEREFORE, BE IT RESOLVED: That the City Council of the City of Cupertino hereby approves thename of McClellan Ranch West for the land at 22241 McClellan Roadcommonly known as the Simms property or Simms addition. PASSED ANDADOPTED at a regular meeting of the City Council of the City of Cupertino this ____1st____ day of ___May___, 2012, by the following vote: VoteMembersoftheCityCouncil AYES: NOES: ABSENT: ABSTAIN: 320 ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 321