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05-15-12 Searchable packet Table of Contents Agenda4 Proclamation to recognize and acknowledge Public Works Week in Cupertino No written materials11 April 17 City Council minutes Draft minutes12 May 1 City Council minutes Draft minutes17 Accounts Payable for period ending April 27, 2012 Draft Resolution26 Accounts Payable for period ending May 4, 2012 Draft Resolution36 Alcoholic Beverage License, Yang BBQ, Inc, 10831 N Wolfe Road Staff Report and License Application47 Alcoholic Beverage License, Mama Chen's Kitchen, 19052 Stevens Creek Boulevard Staff Report and License Application49 Authorize the City Manager to execute a funding agreement with the Santa Clara Valley Transportation Authority (VTA) enabling the City to receive funds from the 2010 Vehicle Registration Fee Staff Report51 A. Draft Resolution54 B. Funding Agreement56 City of Cupertino Local Hazard Mitigation Plan Staff Report62 Draft Resolution64 Cupertino Annex to ABAG Local Hazard Mitigation Plan66 Attachment 1 Cupertino Strategies116 Attachment 2 Cupertino Exposure Analysis129 Cancel the July 17 City Council meeting Staff report133 Calendar134 Second reading of an 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 Report135 A Draft Ordinance Chapter 6.24 - Redline Version.pdf137 B. Draft Ordinance Chapter 6.24 - Clean144 1 Second reading amending Cupertino Municipal Code 2.28:1) removing the residency requirement for the city manager position;2) amending the number of City Council votes required to remove the City Manager from a 4/5 vote to a majority; and 3) deleting the resolution of intent and removal provisions Staff Report151 Revised Ordinance152 Redline Ordinance154 Second reading of "Massage Establishment and Services" Ordinance Draft Ordinance156 Appeal for Islands Restaurant Bar and Late Night Hours Staff Report172 A. Planning Commission staff report dated March 13, 2012.pdf175 B. Planning Commission meeting minutes from March 13, 2012.pdf179 C. Appeal from Council Member Barry Chang.pdf183 D. City Council meeting minutes from September 6, 2011.pdf185 E. City Council reconsideration staff report dated November 15, 2011.pdf187 F. Islands Restaurant floor plan.pdf193 Consider a Petition for Reconsideration and conduct the reconsideration hearing for the approved Bollinger Road Project Staff Report194 A. Draft City Council Resolution200 B. Petition for Reconsideration filed 4/27/12.pdf202 C. PC Staff Report dated 3/27/12203 D. PC Minutes dated 3/27/12.pdf208 E. PC Resolutions 6682, 6683.pdf213 F. CC Staff Report dated 4/17/12221 G. City Council Draft Minutes 4/17/12.pdf226 H. City Council Action Ltr dated 4/23/12.pdf229 I. San Jose Tract Map No. 5782.pdf236 J. San Jose City Council Res. No. 47632.pdf237 K. Approve SJ Improvement Contract for Tract No. 5782.pdf238 L. Excerpt SJ Council Minutes for 5_25_76 Meeting.pdf252 M. City Clerk's Affidavit of Mailing for CC meeting 4/17/12.pdf256 N. Excerpts SJ General Plan Map 1975-1990.pdf257 O. SJ Memo on Bollinger Neighborhood Traffic Meeting 3/1/76.pdf259 P. Incomplete SJ Res approving Tract Map No. 5782.pdf260 Q. SJ Res No. 47630 for Tract Map No. 5782.pdf263 2 R. Incomplete SJ Res related to approval of Tract Map No. 5782.pdf265 S. SJ Memo on PC Rec of vacating old Bollinger Rd.pdf266 T. SJ Tract No. 1693, Unit No. 1.pdf268 U. Aerial Survey of Cul-de-sac lots with less than 60-ft widths.pdf269 V. Phase I Env. Assessment for Bollinger Property.pdf270 W. Phase II Env. Assessment for Bollinger Property.pdf294 X. Arborist Report for Bollinger Property.pdf320 Y. Environmental Review Docs.pdf327 Z. Written Neighborhood Comments.pdf344 AA. Plan Set.pdf352 Main Street Cupertino mixed-use development Attachments are separate357 Vacate Finch Avenue, between Stevens Creek Boulevard and Vallco Parkway Staff Report358 A Draft Resolution360 B Map364 Amending Cupertino Municipal Code Section 2.18.110 deleting the resolution of intent and removal provisions regarding the City Attorney position Staff Report365 Redline Ordinance366 3 CUPERTINO CITY COUNCIL ~ SPECIAL MEETING SUCCESSOR TO THE REDEVELOPMENT AGENCY ~ SPECIAL MEETING 10300 Torre Avenue, City Hall Conference Room A 10350 Torre Avenue, Community Hall Council Chamber Tuesday, May 15, 2012 6:00 PM CITY COUNCIL MEETING ROLL CALL – 6:00 PM, Conference Room A COMMITTEE INTERVIEWS 1.Subject:Audit Committee interviews Recommended Action:Interview applicants for vacancies on the Audit Committee RECESS SUCCESSOR TO THE REDEVELOPMENT AGENCY MEETING ROLL CALL – Immediately following interviews, Conference Room A CLOSED SESSION 2.Subject:Successor to the Redevelopment Agency; Conference with Legal Counsel – Initiation of litigation pursuant to subdivision (c) of Section 54956.9: (one case) ADJOURNMENT CITY COUNCIL MEETING PLEDGE OF ALLEGIANCE - 6:45 PM, Council Chamber ROLL CALL CEREMONIAL MATTERS ANDPRESENTATIONS 3.Subject:Proclamation to recognize and acknowledge Public Works Week in Cupertino Recommended Action:Present proclamation No written materials Page:No written materials in packet 4 Tuesday, May 15, 2012Cupertino City Council Successor to theRedevelopment Agency POSTPONEMENTS 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:April 17 City Council minutes Recommended Action:Approve minutes Draft minutes Page:12 5.Subject:May 1 City Council minutes Recommended Action:Approve minutes Draft minutes Page:17 6.Subject:Accounts Payable for period ending April 27, 2012 Recommended Action:Adopt Resolution No. 12-048 Draft Resolution Page:26 7.Subject:Accounts Payable for period ending May 4, 2012 Recommended Action:AdoptResolution No. 12-049 Draft Resolution Page:36 8.Subject:Alcoholic Beverage License, Yang BBQ, Inc, 10831 N Wolfe Road Recommended Action:Accept application Staff Report and License Application Page:47 9.Subject:Alcoholic Beverage License, Mama Chen's Kitchen, 19052 Stevens Creek Boulevard Recommended Action:Accept application Staff Report and License Application Page:49 5 Tuesday, May 15, 2012Cupertino City Council Successor to theRedevelopment Agency 10.Subject:Authorize the City Manager to execute a funding agreement with the Santa Clara Valley Transportation Authority (VTA) enabling the City to receive funds from the 2010 Vehicle Registration Fee Recommended Action:Adopt Resolution No. 12-050 Staff Report A. Draft Resolution B. Funding Agreement Page:51 11.Subject:City of Cupertino Local Hazard Mitigation Plan Recommended Action:Adopt Resolution No. 12-051 Staff Report Draft Resolution Cupertino Annex to ABAG Local Hazard Mitigation Plan Attachment 1 Cupertino Strategies Attachment 2 Cupertino Exposure Analysis Page:62 12.Subject:Cancel the July 17 City Council meeting Recommended Action:Cancel meeting Staff report Calendar Page:133 SECOND READING OF ORDINANCES 13.Subject:Second reading of an 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 second reading and enact 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.pdf B. Draft OrdinanceChapter 6.24 -Clean Page:135 6 Tuesday, May 15, 2012Cupertino City Council Successor to theRedevelopment Agency 14.Subject:Second reading amending Cupertino Municipal Code 2.28:1) removing the residency requirement for the city manager position;2) amending the number of City Council votes required to remove the City Manager from a 4/5 vote to a majority; and 3) deleting the resolution of intent and removal provisions Recommended Action:Conduct the second reading and enact 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 Revised Ordinance Redline Ordinance Page:151 15.Subject:Secondreading of "Massage Establishment and Services" Ordinance Recommended Action:Conduct the second 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" Draft Ordinance Page:156 PUBLIC HEARINGS 16.Subject:Appealfor Islands Restaurant Bar and Late Night Hours Recommended Action:Approve or Deny Appeal of U-2012-01 Description:Application No(s): U-2012-01; Applicant: Fancher Development (Byer Properties); Location: 20750 Stevens Creek Blvd APN# 359-08-013, 359-08-006; Use Permit to allow a restaurant to operate until 12 am Sunday through Friday and Sunday, until 1 am on Saturday and to allow separate bar facilities Staff Report A. Planning Commission staff report dated March 13, 2012.pdf B. Planning Commission meeting minutes from March 13, 2012.pdf C. Appeal from Council Member Barry Chang.pdf D. City Council meeting minutes from September 6, 2011.pdf E. City Council reconsideration staff report dated November 15, 2011.pdf F. Islands Restaurant floor plan.pdf Page:172 7 Tuesday, May 15, 2012Cupertino City Council Successor to theRedevelopment Agency 17.Subject:Consider a Petition for Reconsideration and conduct the reconsideration hearing for the approved Bollinger Road Project Recommended Action:1) Consider the petition for reconsideration and Adopt Resolution No. 12-052approving the Petition seeking Council reconsideration of the Bollinger Road Project; and 2)Conduct the reconsideration hearing for the Bollinger Road Project. Staff recommends that the City Council uphold its original approval, which included: Granting a negative declaration for the project; Approving the project per the Planning Commission resolutions with the added requirement to prepare a comprehensive construction management plan, and direction to staff to design the residence on Lot #4 so that the garage and driveway do not face the existing residences Description:Pursuant to CMC 2.08.096, a Petition for Reconsideration of the City Council's decision to approve a tentative map that allowed the subdivision of 1.14 acre parcel into five lots ranging in size from 7,040 square feet to 11,096 square feet; and a variance to allow reduced lot widths for four of the five new lots surrounding the proposed cul-de-sac that do not meet the minimum lot width requirements; Applications: TM-2012-01, V-2012-01, EA- 2012-01; Location: Western Terminus of Bollinger Road, APN 359-22-077; Applicant: McClellan Development; Petitioner: Arthur Dong; Property Owner: Lands of Jauch Staff Report A. Draft City Council Resolution B. Petition for Reconsideration filed 4/27/12.pdf C. PC Staff Report dated 3/27/12 D. PC Minutes dated 3/27/12.pdf E. PC Resolutions 6682, 6683.pdf F. CC Staff Report dated 4/17/12 G. City Council Draft Minutes 4/17/12.pdf H. City Council Action Ltr dated 4/23/12.pdf I. San Jose Tract Map No. 5782.pdf J. San Jose City Council Res. No. 47632.pdf K. Approve SJ Improvement Contract for Tract No. 5782.pdf L. Excerpt SJ Council Minutes for 5_25_76 Meeting.pdf M. City Clerk's Affidavit of Mailing for CC meeting 4/17/12.pdf N. Excerpts SJ General Plan Map 1975-1990.pdf O. SJ Memo on Bollinger Neighborhood Traffic Meeting 3/1/76.pdf P. Incomplete SJ Res approving Tract Map No. 5782.pdf Q. SJ Res No. 47630 for Tract Map No. 5782.pdf R. Incomplete SJ Res related to approvalof Tract Map No. 5782.pdf S. SJ Memo on PC Rec of vacating old Bollinger Rd.pdf T. SJ Tract No. 1693, Unit No. 1.pdf U. Aerial Survey of Cul-de-sac lots with less than 60-ft widths.pdf V. Phase I Env. Assessment for Bollinger Property.pdf W. Phase II Env. Assessment for Bollinger Property.pdf X. Arborist Report for Bollinger Property.pdf Y. Environmental Review Docs.pdf Z. Written Neighborhood Comments.pdf AA. Plan Set.pdf 8 Tuesday, May 15, 2012Cupertino City Council Successor to theRedevelopment Agency Page:194 18.Subject:Main StreetCupertino mixed-use development Recommended Action:Approve Modifications (M-2011-09) to the previously-approved Master Use Permit (U-2008-01), Architectural and Site Approval (ASA-2008-06) and Tree Removal Permit (TR-2008-08) to allow for a hotel ofup to 180 rooms; 138,700 square feet of retail/athletic club space; a 0.8-acre town square; up to 260,000 square feet of office space; 143 senior age-restricted units (no condominiums); a 0.75-acre park; removal of 61 trees and relocation of 17 trees; Architectural and Site Approval (ASA-2011-24) for the retail buildings and hotel where architectural elevations have been provided; Tentative Map (TM-2011-04) for a total of four fee simple lots with 143 senior age-restricted units (no condominiums); Modification of Condition No. 5 to replace the requirement for a 400-person banquet facility with a 6,500 square foot restaurant and meeting space; Extension of permit to expire five years from the date of approval of this modification; Preservation of the existing Ash trees along Vallco Parkway as the street trees; Allowance to apply faux balconies, rather than useable balconies, on the hotel exterior; Removal of the requirement in Condition No. 6 requiring that the applicant provide free VTA passes to the seniorsliving in the senior housing complex for one year; and the 2012 Addendum to the 2009 Final Environmental Impact Report Description:Application(s): M-2011-09, ASA-2011-24, TM-2011-04 (EA-2011-18); Applicant: Kevin Dare (500 Forbes, LLC); Location: North side of Stevens Creek Boulevard (3 vacant lots) on both sides of Finch Avenue and west of N. Tantau Avenue; APN # 316-20- 085, 316-20-078, 316-20-079 Attachments are separate Page:357 19.Subject:Vacate Finch Avenue, between Stevens Creek Boulevard and Vallco Parkway Recommended Action:Adopt Resolution No. 12-053 Staff Report A Draft Resolution B Map Page:358 ORDINANCESAND ACTION ITEMS 20.Subject:Amending Cupertino Municipal Code Section 2.18.110 deleting the resolution of intent and removal provisions regarding theCity Attorney position Recommended Action:Conduct the first reading of Ordinance No 12-096: “An Ordinance of the City Council of the City of Cupertino amending Chapter 2.18 of the Cupertino Municipal Code regarding the City Attorney position” Staff Report Redline Ordinance Page:365 REPORTSBY COUNCIL AND STAFF 9 Tuesday, May 15, 2012Cupertino City Council Successor to theRedevelopment Agency ADJOURNMENT Adjourn to Wednesday, May 30 at 1:00 PM for a budget study session, Community Hall Council Chamber, 10350 Torre Avenue, Cupertino. 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 so filed 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 15, 2012 Subject:Proclamation to recognize and acknowledge Public Works Weekin Cupertino. NO WRITTEN MATERIALS IN PACKET 11 DRAFT MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, April 17, 2012 PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Mark Santorocalled the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL Present: Mayor Mark Santoro, Vice-Mayor Orrin Mahoney, and Council members Barry Chang, and Rod Sinks. Absent: Gilbert Wong. CEREMONIAL MATTERS ANDPRESENTATIONS 1.Subject:Presentation of anti-tobacco public service announcements prepared by the Cupertino Teen Commission and the City of Cupertino Communications Department staff Recommended Action:Receive presentation Parksand Recreation Director Mark Linder introduced the video presentation. 2.Subject:Proclamation to recognize and acknowledge Arbor Day in Cupertino Recommended Action:Present proclamation st Public Works Director Timm Borden presented the proclamation,declaring April 21as Arbor Day.He noted the benefits of trees to our environment,and announced a tree planting st ceremony to be held in conjunction with the Earth Day Festivalon April 21. POSTPONEMENTS -None ORAL COMMUNICATIONS- None CONSENT CALENDAR Mahoney moved andChang seconded to approve the items on the Consent Calendar as recommended, with the exception of Item No. 4 which was pulled for discussion.Ayes: Chang, Mahoney, Santoro, and Sinks. Noes: None. Abstain: None.Absent: Wong 3.Subject:April 3 City Council minutes 12 April 17, 2012Cupertino City Council Page 2 Recommended Action:Approve minutes 4.Subject:Accounts Payable for period ending March 30, 2012 Recommended Action:AdoptResolution No. 12-034 Chang moved and Mahoney seconded to approve the Item No. 4 on the Consent Calendar. The motion carried with Wong absent. 5.Subject:Accounts Payable for period ending April 6, 2012 Recommended Action:Adopt Resolution No. 12-035 6.Subject:Municipal Improvements, 10216 Pasadena Avenue Recommended Action:Accept Municipal Improvements Description:The work included sidewalk and curb & gutter improvements in the City right- of-way 7.Subject:Alcoholic Beverage License, Wingstop #503, 19620 Stevens Creek Boulevard, Suite 190 (Marketplace) Recommended Action:Approve application for On-Sale Beer and Wine for Bona Fide Public Eating Place 8.Subject:Alcoholic Beverage License, Florentine’s Restaurant, 10275 South De Anza Boulevard Recommended Action:Approve application for On-Sale Beer and Wine for Bona Fide Public Eating Place SECOND READING OF ORDINANCES -None PUBLIC HEARINGS 9.Subject:Bollinger Road Subdivision and Variance Request for lot widths Recommended Action:Planning Commission recommended on a 4-0-1 vote to approve the subdivision and variance request Description:Applications: TM-2012-01, V-2012-01, EA-2012-01Applicant: McClellan Development (Lands of Jauch) Location: Western Terminus of Bollinger Road, APN 359-22- 077Environmental Determination: Negative Declaration.Descriptions: Tentative Map to subdivide an approximately 1.14 acre parcel into five parcels ranging from 7,040 to 11,096 square feet and Variance for reduced lot widths for four of the five new lots surrounding the proposed cul-de-sacthat do not meet the minimum lot width requirements Senior Planner Colin Jung reviewed the staff report. Written Communicationsfor this item included: Anexcerpt of the draft Planning Commission minutes of March 26, 2012, related to this project. 13 April 17, 2012Cupertino City Council Page 3 Email from Irene Jauch Tarter, expressing her support for the project Email from JiaminHe, saying that neighbors did not receive notice, and expressing concern about traffic impacts Email from Patricia Jauch, asking that the developer address his plan for the safety of the wild life that inhabits the property Email from Gayle and Chuck Parker, saying that neighbors didn’t receive notice and there should be a formal review of the pre-existing legal document associated with the original closure of Bollinger Road Email from Anita Devine opposing the reopening of Bollinger Road, stating concerns about traffic and crime Email from James Brown, opposed to the extension of Bollinger Road Email from Darci Hodder, opposed to the project, and saying that she did not receive a notice Mike McClellan,Presidentof McClellan Development,said hewouldcomply withthe conditions as proposed by staffand confirmed that apass-through on Bollinger would never happen. He acknowledged theincrease in traffic and said it wouldbe similar to existing traffic on the north side of Bollinger and the rest of the neighborhood. He said a cul-de-sac wouldallow for convenient and emergency vehicle access,thenew neighborswill likely be active participants inthe neighborhood,and home valueswill likely be raised in the area. He pointed out that they have met or exceededthe City development requirements,and the exception they are asking for is typical of cul-de-sacs. Hecitedastudy of ten cul-de-sacsin the project area which would all require at least one or two exceptions.He also noted that they sent letters to the twelve surrounding radius homesand knocked on doors to speak with thoseneighbors on March 17, 2012.He will continue to make efforts for communications, and will submit aconstruction management plan before the improvements,building permits, and design review. The following people spoke in opposition to this item: Umesh Toprani Arthur Dong Xiangqun Xu Robert Teng Stan Tsing Eddy Lem Barbara Wong The various concerns included:not enough public outreach from the developer;noticing from the City;increased traffic,crime, andsafety issues;overflow parking;noise from the construction;a potential pre-existing legal document associated with the original closure of Bollinger Road;accessforemergency vehicles;the exception for the lot width requirements; the code exception being allowed for thedeveloper and not for homeownersin other situations;increased property taxes. 14 April 17, 2012Cupertino City Council Page 4 William Jauch,a trusteeof the Jauch trust, said there is no feud between the familymembers and that it was the intent of his father to develop the land on Bollinger Road. He talked about the various possible optionsthat they have worked through over the years and made sure to come up with the best situation. Hesaid that they decided to go with McClellan Development because of their good communication and reputation.He notedthat therehas never been awrittenagreement. Jim Yee with TVS architectssaidthe only exceptionsare the lot widths, which will be developed to R1 standardsand Floor Area Ratio (FAR)guidelines. Mahoneymovedand Sinksseconded to adopt a Negative Declaration. The motion carried with Wong absent. Mahoney moved and Sinksseconded to approve the subdivision and variance requestwith the following condition: the applicant shall prepare a detailed construction management plan to be approved by the city prior to issuance of any grading or demolition permit for the subdivision construction.The plan shall address: equipment staging area, designate a complaint hotline and signage, fencing, and locations of portable restrooms, construction trailer, and worker parking.The plan shall also memorialize the city’s noise standards and other construction activity regulating conditions specifiedin the tentative map resolution. The applicant shall also prepare a construction management plan for city review and approval prior to the issuance of any building permits for new residences on the subject property.That plan shall also address construction phasing.The motion carried with Wong absent. Council also directed stafffor the new dwelling on lot #5, to avoid a side yard facing garage door and driveway that faces existing residences, and work with adjacent residents on the designs of the newhomes. ORDINANCESAND ACTION ITEMS 10.Subject:Approve Refinancing of City debt Recommended Action:Adopt resolution approving the form and authorizing the execution of certain lease financing documents in connection with the offering and sale ofcertificates of participation relating thereto to refund the City’s outstanding certificates of participation (2002 Refinancing and Capital Improvement Project), and authorizing and directing certain actions with respect thereto Description:The resolution approves the refinancing and authorizes the execution and delivery of various documents by authorized City officials Written Communications for this item included A revised City resolutionfrom staff. Finance Director David Woo reviewed the staff report and introduced the presentation. 15 April 17, 2012Cupertino City Council Page 5 Tim Schaefer fromMagis Advisorswent overthe City’s Proposed Refinancing of 2002 Certificates of Participation.As listed in his presentation, he reviewed theTakeaways,the ProposedRefunding, the Pledged/Leased Assets, Standard & Poor's Rationale for 2009 Upgrade, Standard & Poor's Rationale for 2012 Refinancing, Estimated Sources and Uses, Debt Service Schedule, Summary, and Financing Timeline. Jennifer Griffin asked what the term “leased asset” means,who are we leasing them to, and are we paying off the debt of the Library and Community Hall being built? Brian Quint, Magis bond counsel, explained that under the “Lease Exception”the City can borrow money and pay it back over time,beyond the fiscal year, and with the Certificates of Participation(COP’s).He noted that thethree assets in questionareCityHall,Library,and Community Hall,are unencumbered assets,the lease back established the City’s obligationto make payments over time,and those paymentsare effectively sold to investors.He said the lease is being structured to satisfy the requirements of law, andto refinancethe existing debt encumberedin 2002.The City is not paying anybody back for this transaction, buyingor sellinganything,or mortgagingthe buildings,and would not lose the title if it didn’t pay. Chang moved and Sinksseconded to adopt Resolution No. 12-036approving the form and authorizing the execution of certain lease financing documents in connection with the offering and sale of certificates of participation relating thereto to refund the City’s outstanding certificates of participation (2002 Refinancing and Capital Improvement Project), and authorizing and directing certain actions with respect thereto.The motion carried with Council member Wong absent. REPORTSBY COUNCIL AND STAFF Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 9:38p.m., the meeting was adjourned. ____________________________ Kirsten Squarcia, Recording Secretary Staffreports, backup materials, and items distributed at the City Council meeting are available for review at the City Clerk’s Office, 777-3223, and also on the Internet at www.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet. Most Council meetings are shown live on Comcast Channel 26 and AT&T U-verse Channel 99 and are available at your convenience atwww.cupertino.org. Click on Agendas & Minutes, then click Archived Webcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777-2364. 16 DRAFT MINUTES Special Meeting May 1, 2012 CLOSED SESSION 1.Subject: Conference with Labor Negotiator(Government Code 54957.6); Agency negotiator: Carol Atwood; Employee organization: OE3; CEA The closed session was cancelled due to information not being ready. PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Mark Santorocalled the meeting to order in the Council Chamber, and led the Pledge of Allegiance. ROLL CALL Present: Mayor Mark Santoro, Vice-Mayor Orrin Mahoney, and Council members Barry Chang, Rod Sinks, and Gilbert Wong. Absent: None Mayor Santoro reported out on the April 30 closed session meeting regarding Public Employee Employment (Gov’t Code 54957(b)(1); Title:City Manager Recruitmentand said that Council obtained briefing and gave direction. CEREMONIAL MATTERS ANDPRESENTATIONS 2.Subject: Present proclamations to Organization of Special Needs Families 2011 President Award Recipients Recommended Action: Present proclamations Former Mayor Sandy James, President of the Board of the Organization of Special Needs Families,stated that the organization providesafter school care, classes, sporting events, and Sunday drop off time for parents.She stated that all of the work would not be possible without the efforts of volunteers who return year after year. Thirtystudents were honored by the president for achievingover100hours of volunteer time. Mayor Santoro presented proclamations to the students. Astudentshared her experience of volunteering her time and what she has learned. 17 May 1, 2012Cupertino City Council Page 2 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 RecommendedAction: Present proclamations Mayor Santoro presented proclamations to the students. A student shared her experience in the program and encouragedothers to try it. POSTPONEMENTS Mahoney moved and Wong seconded to postpone item number 18 to May15so that it could be discussed along with the Main Street development project. The motion carried unanimously. ORAL COMMUNICATIONS David Radtka saidthat he didn’t think Council member Sinks should have identified himself as a Council memberat ameeting regarding the Monta Vista High School field lighting project. He stated that he felt it was inappropriate for a Council member to support a project that violates Cupertino’s own noise ordinance. T.S.Srinivasansaid that one of the school field lights is about 20 feet from his backyard. He showed a picture of his house withthe light showing in the background. He stated that this is a violation of a City ordinance and that the school could have considered other options on the lights that would have less glare. Susan Camillerisaid that many residents from the Monta Vista High School neighborhood attended a Fremont Union High School District meeting onApril 10where Council member Rod Sinks made a statement. She noted that Council member Sinks said the speech was his own views and identified himself as a City official.Ms. Camilleri said she felt that people got the impression that he was speaking forthe City rather than on his own. Jennifer Griffin spoke onitem number 18 regarding theFinch Avenue vacation. She noted that the vacation is happening at the same meeting as the Main Street itemandaskedif the vote on the vacation would take place after the Main Street project has been approved. She said she felt that it would not be appropriate to vote on the vacation before the Main Street project is actually approved. DarrelLum said he emailed Council comments supporting the vacation of Finch Avenue.He stated that he supports the vacation of Finch Avenueif it supports an advantage to the Main Street project.He saidthat since the approval of Main Street in 2009, there wassome concern that the project mightnot continue. He stated that he feels there should be some conditions tied to the approval to vacate Finch Avenue such as proceeding with a first approval that Finch Avenue be restored to its present condition and approval of a bond to restore the property to its existing condition. He presented a map that showed a previous vacation that occurred during the Highway 85 project and noted that vacations may have some value and based on the purchase price of $65 million for 17 acres, Finch Avenue is probablyworth about $4 to 5$ million dollars. 18 May 1, 2012Cupertino City Council Page 3 Mayor Santoro explained that the Finch Avenue vacation was delayed because the Main Street project has not been brought before Council. He also responded to the comments made regarding Council member Sinks.He notedthat Council has takenno formal position on the Monta Vista High School stadium lights projectbecause it is outside the Council’s jurisdiction, but thatthe City has commented on the lights and noiseissue.He saidthat it isanormal practice for Council members to attend meetings as a City official and that it isnormal to state that they are speaking on their own behalf. He cautionedCouncil members to be clear to the public when speaking on their own behalf rather than on behalf of the Council. Council member Sinksread aportion of what he said during the Fremont Union High School District meeting which included an introduction of himself as a Cupertino Council member, where he lives, and his feelings as a parent. CONSENT CALENDAR Wongmoved and Mahoney seconded to approve the items on the Consent Calendar as recommended, with the exception of Item Nos.8,15and 16 which werepulled for discussion. Ayes: Chang, Mahoney, Santoro, Sinks, and Wong. Noes: None. Abstain: None. 4.Subject:Accounts Payable for period ending April 13, 2012 Recommended Action:Adopt Resolution No. 12-037 5.Subject: Accounts Payable for period ending April 20, 2012 Recommended Action: Adopt Resolution No. 12-038 6.Subject: Treasurer's Investment and Budget Report for Quarter Ending March 2012 Recommended Action: Accept the report 7.Subject: Set budget study session for Wednesday, May 30 beginning at 1:00 p.m. Recommended Action: Set budget study session 8.Subject: 2011-2012 City Council Work Program Recommended Action: Approve the final work program Written communication for this item included a supplemental memorandum staff report. Wong movedand Mahoney secondedto approve the final work program except item 1A (Apple), 1C (Sand Hill Properties Site –Main Street project), 1G (Embarcadero Park/Results Way)1J (Apple Cafeteria), and 3B(Fiscal Strategic Plan). The motion carried unanimously. Council memberSinks recused himself fromvoting on the remainingwork programitems and left the dais at 7:27p.m. Wong movedand Mahoney secondedto approve the rest of the items as noted above. The motion carried with Sinks absent. Council member Sinks returned to thedais at 7:28 p.m. 19 May 1, 2012Cupertino City Council Page 4 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 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. 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 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) 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 14.Subject: MunicipalImprovements, 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 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 Written communication for this item included an amended staff report. Jennifer Griffin requested clarification on how different agencies coordinate the maintenance and upgrades that may occur due to new developments and how it’s determinedwho pays for the upgrades. Mayor Santoro respondedthat maintenance and timing of lights for replacement are shared and jointly owned. 20 May 1, 2012Cupertino City Council Page 5 Director of Public Works Timm Borden also responded that the maintenance and updates of traffic lights would be negotiated and continued to be supported by agreements on a case by case basis. Mahoney moved and Wong seconded to adopt Resolution No. 12-042. The motion carried unanimously. 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 Sinks moved and Wong seconded to continue this item to a meeting in June and asked staff to send a message tothe County regarding the fiscal impact to the City of all transfers to and from the County, particularly the County’s intention to take away money from Cupertino that the City was counting on to fulfill commitments made under the former Redevelopment Agency. The motion carried unanimously. 17.Subject: Fee waiver request from the League of Women Voters of Cupertino-Sunnyvale Recommended Action: Approve fee waiver SECOND READING OF ORDINANCES -None PUBLIC HEARINGS 18.Subject:Postpone vacation of Finch Ave between Stevens Creek Boulevard and Vallco Parkway Recommended Action:Postpone to May 15, 2012 Written communication for this item included emails from Keith Murphy, Lisa Warren, and Darrel Lum. Under postponements, this item was continued to May 15. 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 CDBG funds, Human Service grants and the FY 2012 Annual Action Plan Senior Planner Vera Gil reviewed the staff report. 21 May 1, 2012Cupertino City Council Page 6 At 7:37p.m. Mayor Santoro opened the public hearing. Wongmoved and Changseconded toadopt ResolutionNo. 12-045.The motion carried unanimously.Mahoney moved and Wong seconded to approve the FY 2012-13 Annual Action Plan. The motion carried unanimously. 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" Written communication for this item included a copy of Cupertino Municipal Code Chapter 2.28 regarding the City Manager and a redline version of draft ordinance. City Attorney Carol Korade reviewed the staff report. Jennifer Griffin said that it’s important for ongoing staff members to be therewhen there are changes to the City so that theCity remains stable. She stated that she doesn’t feel it is appropriate to remove a City Manager on a whim or a fluke, but that it should be something more serious. She also saidthat she was not comfortable with a majority vote because she would be concerned that there might be three Council members present at a meeting and two of the three may vote to remove the manager without the rest of Council present. City Attorney Carol Koradestatedthat three votes are requiredonalllegislative or employment actions.She also discussedher own contract and said she would like to have the samevoting and due process updateincludedinthe ordinance for City Attorney as well. Council concurred to have theordinance for City Attorneyreviewed at the next meeting. Acting City Clerk Grace Schmidt read the title of the ordinance with the following amendments: 1) Keep only the first sentence in section Aas amended per the staff reportand 2) Delete sections B and C. Wong moved and Chang seconded to read the ordinance by title only, and that the City Clerk’s reading would constitute the first reading thereof. Ayes: Chang, Mahoney, Santoro, Sinks and Wong. Noes: None. 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” 22 May 1, 2012Cupertino City Council Page 7 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) Written communication for this item included a staff report addendum. Public Works Director Timm Borden reviewed the staff report. ActingCity Clerk Grace Schmidt read the title of the ordinancewith the following amendment to strike-through the second sentence in Section 6.24.300 as shown in the staff report addendum. Council also directed staff to bring back an additional change at the second reading to add asentence at the beginning of Section 6.24.035 to say, “Mandatory recycling as it applies to multi-family residential and commercial businesses.” Changmoved and Wongseconded to read the ordinance by title only, and that the City Clerk’s reading would constitute the first reading thereof. Ayes: Chang, Mahoney, Santoro, Sinks and Wong. Noes: None. 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" Written communication for this item included a redline version of the draft ordinance. City Attorney Carol Korade discussed the purpose of the revision. The City Clerk read the title of the ordinance with an amendment to correct a typo on page 293 under Section B, second paragraph. Wong moved and Sinks seconded to read the ordinance by title only, and that the City Clerk’s reading would constitute the first reading thereof. Ayes:Chang, Mahoney, Santoro, Sinks and Wong. Noes: None. Mayor Santoro reordered the agenda to continue with Oral Communications. Garrett Wong, Jordan Spence, and Miles Membreno gave a PowerPoint presentation regarding an anti-Styrofoam initiative to ban Styrofoam in Cupertino. They stated that theirmission is to educate the community onthe negative impacts ofStyrofoam. They also stated that their ultimate goal is get Styrofoam banned in Cupertino permanently. Some of the negative health impacts and environmental issues, such as a possible cause of cancer and the 500yearsit takes for Styrofoam to decompose,were alsohighlighted. They encouraged Council to consider banning Styrofoam in Cupertino. Council recessed from 8:04 p.m. to 8:13 p.m. 23 May 1, 2012Cupertino City Council Page 8 23.Subject: McClellan Ranch Master Plan 2012 Update and Naming 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 Written communication for this item included emails from Doug Cheeseman, Phillip Pflager, Rhoda Fry, Lola Kashyap, Gail Bower, Joanne Acterra, Anne Ng, and Deborah Jamison. Public Works Director Timm Borden and Parks and Recreation Director Mark Linder reviewed the staff report. Shani Kleinhaus from theAudubon Society encouraged Council to change the names. Jennifer Griffin said that the title of McClellan Ranch Preserve and McClellan Ranch West is appropriate. She noted that there are many old buildings at McClellan Ranch and if there is no room there, then Cupertino should establish another location for old buildings. Keith Wandry said that he supports thepreservation of old buildings.He stated that the park is an ecosystem small enoughthat kids can grasp it and cansee the interaction between differentanimals there. He said that he feels the park is a valuable asset for teaching good values to kids for the future. Shirley Kinoshita said that she was involved in the past withMcClellan Ranch and appreciates the value that the park has meant to her personally and now she enjoys taking her grandchildren down the path to the gardens. She said she cherishes it as a nature preserve. Mahoney moved and Wong seconded to adopt the McClellan Ranch Master Plan 2012 update. The motion carried unanimously. Wong moved and Mahoney seconded to directstaff to include its priority Capital Improvement Projects in the 2012-17CIPas appropriate and consider the Stocklmeir, McClellan Ranch, and Simms creek corridor properties with respect to adding new buildings or relocating existing ones.Staff willprepare a summary of the pertinent task force recommendations and council decisions that affect the involved parcels. The motion carried unanimously. Chang moved and Mahoney seconded to adopt Resolution No. 12-046. The motion carried with Santoro and Wong voting no. 24 May 1, 2012Cupertino City Council Page 9 Chang moved and Mahoney seconded to adopt Resolution No. 12-047. The motion carried with Santoro and Wong voting no. REPORTSBY COUNCIL AND STAFF Council concurred to add an item to the next Council meeting consent agenda regarding canceling the July 17 Council meeting. Council members Sinks and Chang asked staff to add a plastic bag and Styrofoam ban discussion to a future Council agenda. Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 8:47p.m., the meeting was adjourned to Tuesday, May 15 at 5:30 p.m. forAudit Committee interviews, City Hall Conference Room A, 10300 Torre Avenue, Cupertino. ____________________________ Graces Schmidt, ActingCity Clerk Staffreports, backup materials, and items distributed at the City Council meeting are available for review at the City Clerk’s Office, 777-3223, and also on the Internet atwww.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet. Most Council meetings are shown live on Comcast Channel 26 and AT&T U-verse Channel 99 and are available at your convenience atwww.cupertino.org. Click on Agendas & Minutes, then click Archived Webcast. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel, 777-2364. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 PUBLIC WORKS DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 15, 2012 Subject Authorize the City Manager to execute a funding agreement with the Santa Clara Valley Transportation Authority (VTA) enabling the City to receive funds from the 2010 Vehicle Registration Fee. Recommended Action Adopt Resolution No. 12-_________. Discussion On November 2, 2010, SantaClara County voters approved Measure B, which levies a $10 annual vehicle registration fee (VRF) on cars ownedand registered by county residents. The fees will be used to pay for local transportation improvements, including pothole repair, paving, traffic control signalsand safety improvements. This revenue may be used on its own, or as matching funds for federal, state and regional transportation grants, which enhances local agencies’ flexibility and ability to leverage funding for additional transportation improvements in our county. All revenue collected through the VRF remains in Santa Clara Countyand is distributed to cities to help fund their highest priority roadway improvements. The VTA Board of Directors adopted anexpenditure plan(per Exhibit Aof the Funding Agreement), which provides detail on project eligibility and how the funds are to be distributed. This expenditure plan will be independently audited and periodically reviewed by the VTA Board of Directors to determine if any modifications are needed.It has been estimated that this fee will generate approximately $14 million annually to be used on projects in Santa Clara County. Sustainability Impact N/A Fiscal Impact The City will receive a share of the funds based on the existing distribution formula employed by the regional transportation programming authority to distribute regional funds among the member agencies, depending on the actual funds collected each year that the VRF remains in effect.In fiscalyear2012-13, Cupertino will receive approximately $300,000.Staff will recommend that these funds be allocated to pavement managementfor the 2012-13 budget. 51 _____________________________________ Preparedby: Glenn Goepfert Reviewed by: Timm Borden Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.Resolution B.Funding Agreement 52 53 ATTACHMENT A RESOLUTION NO. 12- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING THE CITY MANAGER TO EXECUTE A FUNDING AGREEMENT WITH THE SANTA CLARA COUNTY TRANSPORTATION AUTHORITY (VTA) ENABLING THE CITY TO RECEIVE FUNDS FROM THE 2010 VEHICLE REGISTRATION FEE Whereas, On June 3, 2010, the VTA Board of Directors adopted a resolution to place a ballot measure before the voters of Santa Clara County in November 2010 to authorize a $10 increase in the Vehicle Registration Fee (VRF) for transportation-related projects and adopted the expenditure plan in ExhibitAof the Funding Agreementwhich allocates the revenue to transportation-related programs and projects that have a relationship or benefit to the persons who pay the fee; and Whereas, On October 7, 2010, the VTA Board of Directors adopted administrative procedures for the VRF program, referred to hereinafter as PROGRAM; and Whereas, these administrative procedures state that VTA will execute PROGRAM funding agreements with project sponsors; and Whereas, On November 2, 2010, the voters of Santa Clara County enacted the $10 vehicle registration fee on motor vehicles registered within Santa Clara County to pay for programs and projects bearing a relationship or benefit to the owners of motor vehicles paying the fee; and Whereas, the PROGRAM includes a Local Road Improvement and Repair Program consisting of a direct return-to-source formula based on City population and County of Santa Clara road and expressway lane mileage; and Whereas, VTA and Cupertinodesire to specify herein the terms and conditions under which Local Road Improvement and Repair PROGRAM grants are to be conducted and financed. NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL HEREBY Authorizes the City Manager to execute the funding agreement with the Santa Clara Valley Transportation Authority (VTA) enabling the City to receive funds from the 2010 Vehicle Registration Fee and take all necessary related actions. 54 PASSED AND ADOPTED at the regular meeting of the City Council of the City of Cupertino this 15thday of May,2012, by the following vote: VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, City ClerkMark Santoro, Mayor 55 ATTACHMENT B FUNDING AGREEMENT BETWEEN THE CITY OF CUPERTINO AND THE SANTA CLARA VALLEY TRANSPORTATION AUTHORITY FOR 2010 MEASURE B VEHICLE REGISTRATIONFEELOCAL ROADIMPROVEMENTANDREPAIRPROGRAM THIS AGREEMENT is between the City of Cupertino, a“Member Agency,”referred to herein as "RECIPIENT,"and the SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, referred to herein as "VTA."Hereinafter, RECIPIENT and VTA may be individually referred to herein as "Party" or collectively referred to herein as "Parties.” I. RECITALS Whereas A.,on June 3, 2010, the VTA Board of Directors adopted a resolution to place a ballot measure before the voters of Santa Clara County in November 2010 to authorize a $10 increase in the Vehicle Registration Fee (“VRF”) for transportation-related projects and adopted the expenditure plan in ExhibitAof this Funding Agreement which allocatesthe revenue to transportation-related programs and projects that have a relationship or benefit to the persons who pay the fee. Whereas B.,on October 7, 2010, the VTABoard of Directors adoptedadministrative procedures for the VRF program,referred to hereinafteras“PROGRAM”. Whereas, C.these administrative procedures state that VTA will execute PROGRAM funding agreements with project sponsors. Whereas D.,on November 2, 2010, the voters of Santa Clara County enacted the$10 vehicle registration fee on motor vehicles registered within Santa Clara County to pay for programs and projects bearing a relationship or benefit to the owners of motor vehicles paying the fee. Whereas E., the PROGRAM includes aLocal Road Improvement and Repair Program consisting of a direct return-to-sourceformula based on City populationand County of Santa Clara road and expressway lane mileage. Whereas F., VTA and RECIPIENT desire to specify herein the terms and conditions under which Local Road Improvement and Repair PROGRAM grantsareto be conducted and financed. NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Parties agree as follows: 56 II. VTA’SOBLIGATIONS VTA agrees: 1.To pay RECIPIENT an initial distributionof Local Road Improvement and Repair Program funds collected by the California Department of Motor Vehicles (DMV) and received by VTA from the date of initial fund collection to June 30, 2012, plus associated interest.The Fund Distribution Formula is based on the County of Santa Clara’s percentage share of the total roadway lane mileage recorded in the county by the Metropolitan Transportation Commission (MTC), with the remaining funds to be distributed to RECIPIENT based on RECIPIENT’s percentage share ofthe total county population (excluding unincorporated areas) as reported by the CaliforniaDepartment of Finance. Funds will be distributed after July 1, 2012, following execution of the VRFLocal Program Funding Agreement and receipt of RECIPIENT’sinitial Annual Reportdescribed in Section III-5. 2.To update roadway mileage and population shares annually. 3.To distribute subsequent funds, based on the formula described in Section II-1 above, for the Local Road Improvement and Repair Program funds on an annual basis consisting of funds received by VTA from the DMV between July 1 of the previous year and June 30 of the calendar year of disbursement, plus associated interest generated in VTA’s accounts. The distribution will take place following the beginning of thenextState fiscal year and the receipt of the previous year’s annual report described in Section III-5 below. III. RECIPIENT’SOBLIGATIONS RECIPIENT agrees: 1.To develop eligible project(s) as listed in the Expenditure Plan adopted by the VTA Board of Directors on October 7,2010. 2.To credit VTA’s funding contribution on all signage, electronic or printed materials distributed to the public that arerelated to PROGRAM projects. 3.To certify, and continue to certify on a yearly basis,aGood Faith Effort (“GFE”) to maintain a level of expenditures (including non-discretionary formula based state funds) on VRF eligible activities equivalent to the expenditures on these activities during the fiscal year 2011 (base year). The base year may be revised every five (5)years, if needed, and VRF revenues will be excluded. The following funds are excluded from the GFE expenditure calculation: State and Federal Discretionary Grants (including but not limited to ARRA, CMAQ, HBRR, HSIP, SR2S, STP, and Proposition 1B etc.), associated local matching funds, and one-time local expenditure. GFE requirements are automatically waived in years where the State of California fails to make non-discretionary payments of streets and roads funding to Cities and Counties. VTA may also consider granting waivers based on extraordinary circumstances beyond the control of a city or town council, County Board of Supervisors, and/or city and County staff. 57 4.To track interest earned on unexpended PROGRAM funds and apply interest to PROGRAM eligible projects. 5.To submitannual reports of RECIPIENT’S expenditures of PROGRAM funds and associated interest, in aform to be provided by VTA to RECIPIENT. Each report will cover twelve months consisting of the previous State fiscal year. Reports are due fromRECIPIENT to VTA no later than October 15 of each year as a condition of receiving funds. As part of the annual report, RECIPIENTwill certify that it continues to make a Good Faith Effort (GFE) to maintain a level of expenditures as stated in section II-5.Aninitial report,containingthe notification of GFE base year amount and statement of GFE for FY2012/13, shall be submitted by RECIPIENTto VTA after the execution of this agreement. 6.To maintain PROGRAM financial records,books, documents, papers, accounting records and other evidence pertaining to costs for five years. RECIPIENT shallmake such records available to VTA upon request for review and audit purposes. Financial audits will be performed at VTA’s discretion. RECIPIENTwill be contacted in writing in advance of any audit or other program review. 7.To provide VTA with information regarding scope, award and delivery of projects. IV. GENERAL TERMS AND CONDITIONS Both Parties agree: 1.Neither VTA 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 RECIPIENT under or in connection with any work, authority or jurisdiction delegated to VTA or RECIPIENT under this Funding Agreement. Both Parties agreethat pursuant to Government Code 895.4, RECIPIENT shall fully defend, indemnify, and save harmless VTA from all suits or actions of every name, kind and description brought on for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by RECIPIENT under or in connection with any work, authority or jurisdiction delegated to RECIPIENT under this Funding Agreement. This provision shall survive the termination of this Agreement. 2.Neither RECIPIENT 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 VTA under or in connection with any work, authority or jurisdiction delegated to RECIPIENT or VTA under this Funding Agreement. Both Parties agree that pursuant to Government Code 895.4, VTA shall fully defend, indemnify, and save harmless RECIPIENT from all suits or actions of every name, kind anddescription brought on for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by VTA under or in connection with any work, authority or jurisdiction delegated to VTA under this Funding Agreement.This provision shall survive the termination of this Agreement. 58 3.No alteration or variation of the terms of this Funding Agreement shall be valid unless made in writing and signed by both of the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 4.PROGRAM costs incurred on or after July 1, 2011 are eligible expenditures. 5.This Funding Agreement contains the entire understanding between the VTA and RECIPIENT for the PROGRAM. It supersedes any and all other agreements, which may have existed between the parties. This Funding Agreement shall not be modified except by written agreement signed by each party. This Funding Agreement shall be binding upon each party, their legal representatives, and successors for the duration of the VRF. The term of this Funding Agreement shall commence when fully executed and continue until 6. terminated due to the repeal of Sections 65089.20 to the Government Code and Section 9250.4 of the Vehicle Code, which authorizes the imposition of the VRF. Any notice which may be required under this Agreement shall be in writing, shall be 7. effective when received, and shall be given by personal service, by the U.S. Postal Service or by certified mail, tothe addresses set forth below, or to such addresses which may be specified in writing to the Parties hereto. VTA: Manager, Programming and Grants Santa Clara Valley Transportation Authority st 3331 North 1Street San Jose, CA 95134 RECIPIENT: David Stillman Senior Civil Engineer Department of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 8.Within 30 days from the Effective Date of this Agreement, RECIPIENT shall notify VTA of RECIPIENT’s Program Liaison and of the Liaison’s address, telephone number and email address. The Program Liaison shall be the liaison to VTA pertaining to implementation of this Agreement and shall be the contact for information about the PROGRAM and PROGRAM projects. RECIPIENT shall notify VTA of the change of Program Liaison or of the Liaison’s contact information in writing no later than 30 days from the date of any change. 59 9.Each Party to this Agreement represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute this Agreement on behalf of the entity that is a party to this Agreement. CITY OF CUPERTINOSANTA CLARA VALLEY (RECIPIENT)TRANSPORTATION AUTHORITY (VTA) Amy Chan,Interim City ManagerMichael T. Burns, General Manager Date Date Approved as to Form and Legality:Approved as to Form: Counsel DateCounsel Date 60 Exhibit A 61 ADMINISTRATIVE SERVICESDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3227www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 15, 2012 Subject Approve City of Cupertino Local Hazard Mitigation Plan Recommended Action Adoptresolutionto approve the City of Cupertino Local Hazard Mitigation Plan Description Adopt the City of Cupertino Annex to the Santa Clara County Annex to the 2010 Association of Bay Area Governments (ABAG) report “Taming Natural Disasters” as the City of Cupertino’s Local Hazard Mitigation Plan. Discussion Santa Clara County has experienced a range of natural disasters and is at risk of many man-made hazards. To minimize the potential loss of life, injuries, and damage to property that can result from these natural and man-made hazards, Santa Clara County and cities in the County have been working with ABAG to develop local hazard mitigation plans. These plans identify potential hazards in a community and specificactions that can be taken to reduce the risk associated with these hazards. Plans for the County and cities in the County are part of the Santa Clara County annex to the 2010 ABAG Local Hazard MitigationPlan “Taming Natural Disasters” http://quake.abag.ca.gov/mitigation/.The Santa Clara County Annex and city annexes to the County plan were developed through a collaborative process that involved the County, cities of the County, local emergency professionals, and several private sector businesses. Additionally, public input was solicited through an online survey and the County welcomed public comments on the draftCounty Annex and city annexes. ABAG has asked cities and counties participating in the regional hazard mitigation planning efforts to adopt their plans and annexes lateMarch or early April 2012. Consequently, staff is requesting Council approval of the attached resolution adopting the City of Cupertino Annex to the Santa Clara County Annex to the 2010 ABAG report “Taming Natural Disasters” as the City of Cupertino’s Local Hazard Mitigation Plan. 62 Fiscal Impact There is no fiscal impact ____________________________________ Prepared by:Jim Yoke, Emergency Services Coordinator Reviewed by: Carol A. Atwood, Director of Administrative Services Approved for Submission by:Amy Chan,InterimCity Manager Attachments: Draft ResolutionNo. 12- City of Cupertino Annexto the Santa Clara County, CA Annex to 2010 Association of Bay Area Governments Local Hazard Mitigation Plan “Taming Natural Disasters”: Attachment 1 –Cupertino Strategies 2010 o Attachment 2-Cupertino Exposure Analysis o 63 RESOLUTION NO. 12- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE CITY OF CUPERTINO ANNEX TO THE SANTA CLARA COUNTY ANNEX TO THE 2010 ASSOCIATION OF BAY AREA GOVERNMENTS REPORT “TAMING NATURAL DISASTERS” AS THE CITY OF CUPERTINO’SLOCAL HAZARD MITIGATION PLAN WHEREAS, the Bay Area is subject to various earthquake-related hazards such as ground shaking, liquefaction, landslides, fault surface rupture, and tsunamis; and WHEREAS, the Bay Area is subject to various weather-relatedhazards including wildfires, floods and landslides; and WHEREAS, the City of Cupertino recognizes that disasters do not recognize city, county, or special district boundaries; and WHEREAS, the City seeks to maintain and enhance both a disaster-resistant City and region by reducing the potential loss of life, property damage, and environmental degradation from natural disasters, while accelerating economic recovery from those disasters; and WHEREAS, the City is committed to increasing the disaster resistance of the infrastructure, health, housing, economy, government services, education, environment, and land use systems in the City, as well as in the Bay Area as a whole; and WHEREAS, the Federal Disaster Mitigation Act of 2000 requires all cities, counties and special districts to have adopted a Local Hazard Mitigation Plan to receive disaster mitigation funding from FEMA; and WHEREAS, ABAG has approved and adopted the ABAG report “Taming Natural Disasters” as the multi-jurisdictional Local HazardMitigation Plan for the San Francisco Bay Area; NOW, THEREFORE,BE IT RESOLVED, that the City Council adopts with its local annex, this multi-jurisdictional plan as its Local Hazard Mitigation Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED that the City commits to continuing to take those actions and initiating further actions, as appropriate, as identified in the City of Cupertino Annex to the County of Santa Clara Annex of that multi-jurisdictional Local Hazard Mitigation Plan and will consider including the mitigation strategies as the Implementation Appendix of the Safety Element of its General Plan during the Safety Element update process now underway and expected to be completed by December 2014. PASSED AND ADOPTED at a regular meeting of the CityCouncil of the City of Cupertino this3rdday ofApril 2012by the following vote: 64 VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt,Acting City ClerkMark Santoro,Mayor, City of Cupertino 65 TABLE OF CONTENTS Section 11City of Cupertino Annex11-3 11.1Introduction11-3 11.2Internal Planning Process11-7 11.3Capability Assessment11-16 11.3.1Mitigation Progress11-16 11.3.2Staff and Organizational Capabilities11-17 11.3.3National Flood Insurance Program11-26 11.3.4Resource List11-28 11.4Vulnerability Assessment11-28 11.4.1Critical Facilities11-28 11.4.2Exposure Analysis11-29 11.5Mitigation Strategy11-45 11.5.1Primary Concerns (goals)11-45 11.5.2Mitigation Actions11-45 11.6Plan Maintenance11-46 11.6.1Monitoring, evaluating, updating the plan11-46 11.6.2Point of Contact11-47 11.7City of Cupertino Annex11-48 11.7.1Cupertino Attachment 1:Cupertino Strategies 201011-49 11.7.2Cupertino Attachment 2: Cupertino Exposure Analysis11-50 FIGURES Figure 11-1: Inventory of Soft-first Story Multi-family dwellings11-35 TABLES Table 11-1: Hazards of Most Concern11-8 Table 11-2: Items Readily Available to Respondents11-9 City of Cupertino Local Hazard Mitigation Plan 11-1 May 8, 2012Page| 66 Table 11-3: Adequate Homeowners Insurance11-11 Table 11-4: Earthquake Insurance11-12 Table 11-5: Flood Insurance11-12 Table 11-6: Property Changes to Reduce Future Damage from Hazards11-12 Table 11-7: Place to Work in Hazard Areas11-13 Table 11-8: Key Departments in the City of Cupertino11-17 Table 11-9: Technical Capability Matrix11-21 Table 11-10: Availability of Ordinances that Support Hazard Mitigation11-25 Table 11-11: City of Cupertino Critical Facilities11-28 City of Cupertino Local Hazard Mitigation Plan 11-2 May 8, 2012Page| 67 SECTION 11CITY OF CUPERTINO ANNEX 11.1I NTRODUCTION This City of Cupertino Annex serves as an annex to the Santa Clara County Local Hazard Mitigation Plan which is an annex to the 2010 Association of Bay Area Local Hazard Mitigation Plan, Taming Natural Disasters. Pursuant to the Disaster Mitigation Act of 2000, the City Council adopted this annex on March 20, 2012. This annex is an update to the City’s annex to the 2005 Association of Bay Area Local Hazard Mitigation Plan, Taming Natural Disasters, as adopted on July 19, 2005. The City of Cupertino is a medium-sized city located in the western region of Santa Clara County, California. The City has a population of approximately 58,000people, based on the 2010census. The City encompasses approximately 13 square miles and employs about 163full time and 150 part time (peak summer) people. Local police services are contracted from the Santa Clara County Sheriff’s Office and fire services are paid for through a property tax distribution to the Santa Clara County Fire Department. Economy Cupertino is one of many cities that claim to be the "heart" of Silicon Valley, as many semi- conductor and computer companies were founded here and in the surrounding areas. In particular, the worldwide headquarters for Apple Inc. is located here. Other companies headquartered in Cupertinoinclude Trend Micro,Verigy, Durectand SeagateTechnologies. Over 60 companies have offices here, including Lab 126, Chordiant, IBM, and Panasonic.Most of these high-tech companies are located on De Anza Boulevard, Cali Mill Plaza, and Bubb Road. Though Cupertino is home to the headquarters of many high-tech companies, very little manufacturing actually takes place in the city. The city's large office parks are primarily dedicated to management and design functions. City of Cupertino Local Hazard Mitigation Plan 11-3 May 8, 2012Page| 68 In 2002, Cupertino had a labor force of 25,780 with an unemployment rate of 4.5%. The unemployment rate for the Santa Clara County as a whole was 8.4%.Oneof the major employers in the area is the aggregate rock quarry and cement plant in the unincorporated foothills to the west of Cupertino. Currently owned and operated by Lehigh Southwest Cement, it was originally founded by Henry J. Kaiser as the Kaiser Permanente Cement Plant in 1939. It’ssomewhat novel charter was to provide the majority of the cement used in the construction of the Shasta Dam. Transportation The city is served by an interconnected road system. Two freeways, State Route 85 and Interstate 280, intersect in Cupertino, and,like any typical middle-class California suburb, it also has multi-lane boulevards with landscaped medians and traffic lights at all major intersections. The VTA has several buses running through Cupertino at major arteries. Dedicated on April 30, 2009, Cupertino opened the “Mary Avenue Bicycle Footbridge”, the first cable-stayedbicycle pedestrian bridge over a California freeway. This bridge connects the north and the south sections of the Stevens Creek Trail. TheUnion Pacific Railroad operates a branch line track up to the Lehigh Permanente Cement Plant from the mainline at San Jose Diridon Station. It is,however,strictly for the quarry and very little to no non-quarry traffic runs on the track. There is no commuter rail or light rail service in the city. Caltrain commuter rail runs through the cities to the north and east, and the Santa Clara Valley Transportation Authority (VTA)'s Mountain View -Winchester light rail line runs to Campbell, California to the south. Bus service is also provided by VTA, and the prospect of twenty-four hour bus service on Stevens Creek Boulevard is being studied. Housing and Commercial Earlier in its history,Cupertino attributed some of its city income fromthe shopping mall,Vallco Fashion Park. At the time, it wasone of the only major indoor shopping malls in the South Bay area. Since then, several other shopping malls have been built.Valley Fair (now known as Westfield Valley Fair) in Santa Clara caters to the high end, expensive name brand boutique stores, while the Great Mall in Milpitas opened in the 1990s with low-priced and bargain retailers. Vallco Fashion Park was hit hard by these developments, as well as the loss of one of its anchor stores, Emporium, and has had a hard time recovering ever since. As of the census of 2010, there were 20,181 households, and 15,776families residing in the city. City of Cupertino Local Hazard Mitigation Plan 11-4 May 8, 2012Page| 69 City of Cupertino Local Hazard Mitigation Plan 11-5 May 8, 2012Page| 70 This page left blank pending the 2011 resolution. City of Cupertino Local Hazard Mitigation Plan 11-6 May 8, 2012Page| 71 11.2IPP NTERNAL LANNING ROCESS The City of Cupertino participated inthe regional planning process coordinated by ABAG and the local planning process coordinated by Santa Clara County OES as noted in Section 3 of this plan. Jim Yoke, Emergency Services Coordinator, served as the City’s representative and lead for completing this annex. Jimparticipatedin Local Planning Team meetings #1 and #2, while Rick Kitson, Public Information Officer, facilitated the City’s public outreach for the online survey and performed internal reviews and collaboration in order to provide all of the required information for development of this annex. Contact information: jim.yoke@cnt.sccgov.org, 408-887-7818 The City of Cupertino’s internal planning team included the following individuals: City Manager Director of Community Development Senior Building Official Assistant Director ofPublic Works, Service Center Public Information Officer Media Coordinator Webmaster Emergency Services Coordinator Public Outreach The City of Cupertino notified residents and businesses of the hazard mitigation planning process by distributing promotional announcements regarding the public opportunity to respond to the online survey discussed in Section 3.2.6. A copy of the survey is included in County Attachment 7:Survey Outreach Materials, found in Section 9.7. The following media was utilized: Radio Cupertino (1670 AM) –promotional announcement City Channel’s daily news ticker (Comcast Channel 26 / AT&T U-verse Channel 99) City Website ( www.cupertino.org) Cupertino Scene (monthly newsletter mailed to all Cupertino residents and businesses) City of Cupertino Facebook and Twitter pages Copies of these outreach announcements are included in Section 10.7, Cupertino Attachment1: Outreach Materials. Survey Results On November 1, 2010, the Local Planning Team released an online survey to solicit public input regarding concerns for hazard risk. The Local Planning Team also used this survey to gauge the level of public preparedness for emergencies. City of Cupertino Local Hazard Mitigation Plan 11-7 May 8, 2012Page| 72 The survey respondents confirmed the priority rankings for the identified hazards indicating that ground shaking caused by earthquakes and infrastructure failure are of most concern. Additionally, a significant number of respondentsindicated they have made improvements to their property to reduce risk of damage (refer to Table 11-6). The survey allowed the City an opportunity to expand the list of stakeholders. Several respondents provided contact information and were given an opportunity to review/comment on the complete draft prior to adoption. As the City continues to increase awareness of hazard mitigation, the suggested stakeholders (item 19 below) will be considered for involvement in future mitigation planning discussions. Theresults of the survey provide valuable information for the City of Cupertinoas they continue in their preparedness efforts. These responses may be used as a bench mark for future measurements of improvement. For example, the Citychoose to focus on educational outreach about the benefits of insurance or emergency preparedness kits. After this type of implementation, a similar survey may be administered to validate the progress and confirm that more residents have improved their preparedness capabilities. The City of Cupertinowill consider the recommendations provided by survey respondents (items 6 and 18 below) throughout the life of this plan and prioritize those that can be implemented efficiently and effectively. The survey responses received from the City of Cupertino residents are summarized below: 1.25 out of 541 survey respondents were from the City of Cupertino. 2.Respondents were asked which five hazards, out of the 31 hazards the LPT identified, are of most concern to their neighborhood or home. Below are responses from the City of Cupertino (in order of most responses): Table 11-1: Hazards of Most Concern HazardNumber of Responses Earthquake: Ground Shaking17 Infrastructure: Electrical System Disruption (no power)17 Infrastructure: Water System Disruption (no potable water)16 Infrastructure: Telecommunication System Disruption (no phone / cell service)11 Additional Hazard *9 Hazardous Materials Spills (chemical/biological)7 Infrastructure: Transportation Disruption (blocked roads / failed bridges)7 Wildfire7 Infrastructure: Energy System Disruption (no gas)6 Dam Failure5 City of Cupertino Local Hazard Mitigation Plan 11-8 May 8, 2012Page| 73 HazardNumber of Responses Earthquake: Surface Rupture5 Infrastructure: Wastewater System Disruption (sewer backup)4 Delta Levee Failure3 Earthquake: Landslides3 Flood3 Agricultural Pests and Diseases2 Disease and Outbreak2 Freeze1 Landslide and Debris flow1 Solar Storm1 Wind (high winds)1 Bay Area Silting0 Drought0 Earthquake: Liquefaction0 Expansive Soils0 Hailstorm0 Heat (extreme heat)0 Land Subsidence (soil compaction due to subsurface water removal)0 Thunder/Lightning Storms0 Tornado0 Tsunami0 Volcano0 * Respondents noted the following additional hazards: air, water, noise, and soil pollution, urban fire, terrorist activity, and contaminated groundwater 3.Respondents were asked if a severe hazard event occurred today, such that all services were cut off from their home and they were unable to leave or access a store for 72 hours, which items they would have readily available. Below is a summary of responses from the City of Cupertino respondents: Table 11-2: Items Readily Available to Respondents Item that is Readily AvailableResponses 23 Flashlight (with batteries) 23 Blanket(s) 21 First Aid Kit 18 Canned / Non-perishable Foods (ready to eat) 18 Portable AM/FM Radio (solar powered, hand crank,or batteries) 17 Extra Medications City of Cupertino Local Hazard Mitigation Plan 11-9 May 8, 2012Page| 74 16 Cash 14 What else is in your emergency kit? * 12 Portable Water (3 gallons per person) 9 Handheld “Walkie-Talkie” Radios (with batteries) Important Family Photos/Documentation in a water and fire proof 7 container * Respondents noted the following additional items in their emergency kits:tent, propane stove, lantern, children games, books, extra clothes and shoes, candles, knife, batteries, compass, waterproof pen/paper, CERT packs, gloves and hat, garbage bags, spare glasses, plywood, generator, extension cords, hammer, nails, duct tape, water purification tablets, rope, string, spray paint, road flares, broom. 4.Respondents were asked if they were familiar with the special needs of their neighbors in the event of a disaster situation. 18, or 72%of respondents, answered that they are notfamiliar with the special needs of their neighbors. 7, or 28%of respondents, answered that they arefamiliar with the special needs of their neighbors. 5.Respondents were asked if they are trained members of their Community Emergency Response Team (CERT). 14,or56%of respondents indicated that they are part of CERT. 5, or 20%of respondents, indicated that they are not part of CERT, but would like to learn more about CERT. 6, or 24%of respondents, indicated that they are not part of CERT and are not interested in being a trained CERT member. Respondents were asked to share why they are a trained CERT member, or why they are not part of CERT. The received responses are listed below: I want to be prepared for an emergency As a graduate student in Environmental Security, I would like to make this my career to have safety plans for emergency situations. I am working on a research project about ethnic, religious, and age inclusivity for disaster preparedness in Cupertino. Help my family and neighborhood Myhusband is a member Unable to attend at time offered. Prefer to learn from “expert” trainers. I have been active with the Red Cross and I am a HAM radio operator. I wrote the CADRE plan in Santa Clara County. In recent years I have gotten away from it,but probably a good idea to be able to help my neighbors. 6.Respondents were asked whatthe most important thing local government can do to help communities be more prepared for a disaster. The following summarizes the 19responses received: City of Cupertino Local Hazard Mitigation Plan 11-10 May 8, 2012Page| 75 Public information and communication (make sure everyone is aware of resources available to them during a disaster) Preventative measures against air pollution from Lehigh Cement Plant Training and education for citizens and staff (ARKs and CERT) Encourage citizens to acquire emergency preparedness supplies that will be sufficient for 72 hours Be aware of citizens and their special needs School preparedness Create inventory of first responders Survey all available heavy equipment Maintain quality of infrastructure 7. Respondents were asked if they live in an apartment building or home with a living space above a garage or parking area. 15or62.5%of respondents indicated that they do notlive in an apartment or home with living space above a garage or parking area. 9, or 37.5%of respondents, indicated that they dolive in an apartment building or home with living space above a garage or parking area. One respondent skipped this question. Those respondents who indicated that they do live in an apartment building or home with living space above the garage or parking area were asked to describe their level of concern for the building to collapse in a large earthquake event. 5 respondents indicated “Moderate Concern”, 1 respondent indicated “Little Concern”, and2 respondents indicated “No Concern”. 1 respondent indicated that their covered carport in Cupertino is old and in disrepair. This respondent is worried that the carport will collapse on their car. 8. Respondents who are homeowners were asked if they have adequate homeowners insurance to cover the hazards that could impact their home. Below is a summary of responses: Table 11-3: Adequate Homeowners Insurance AnswerResponses Yes, my insurance coverage should be adequate18 No, I don't believe my insurance coverage would be adequate for a major disaster4 Unsure1 I do not have an insurance policy0 Not applicable, I rent my current residence2 9.Respondents were asked if they have earthquake insurance.Below is a summary of responses: City of Cupertino Local Hazard Mitigation Plan 11-11 May 8, 2012Page| 76 Table 11-4: Earthquake Insurance Answer Responses Yes, I own my home and have earthquake insurance.6 Yes, I rent my home and have earthquake insurance.1 No, but Iam interested in reviewing earthquake insurance options.1 No, earthquake insurance is too expensive.13 No, I do not need earthquake insurance.4 10.Respondents were asked if they have flood insurance. Below is a summary of responses: Table 11-5: Flood Insurance AnswerResponses Yes, I own my home and have flood insurance.6 Yes, I rent my home and have flood insurance.1 No, but I am interested in reviewing flood insurance options.0 No, I do notneed flood insurance18 11.Respondents indicated the following as additional insurance listed for their home or property: Comprehensive (with exception of earthquake) Condo HOA insurance includes fire, EQ, etc. Fire Renter’s Full Replacement value homeowners Umbrella liability policy 12.Respondents were asked what they are doing to their property or within their home to reduce future damage from the hazards identified above. Below is a summary of responses: Table 11-6: Property Changes to Reduce Future Damage from Hazards Property MitigationResponses Other *9 Roof retrofit using fire resistant material8 Defensible space landscaping (clear vegetation around house to reduce wildfire risk)5 Installed backflow prevention devices4 Seismic retrofit of the structure and/or foundation3 Strengthened Openings to reduce high hazard wind risk0 House elevation or first floor modification to prevent flood damage0 City of Cupertino Local Hazard Mitigation Plan 11-12 May 8, 2012Page| 77 *The responses to “Other” were: “furniture wall brackets, cabinet security locks, remove heavy items from high locations, secure garage structure, anchored cabinets and heavy furniture, added emergency lights inside, removed falling tree hazard.” 13.Respondents were asked if they work in Santa Clara County. 16, or 66.7%of respondents, indicated that they dowork in Santa Clara County. 8, or 33.3%of respondents, indicated that they do notwork in Santa Clara County. 1 respondent skipped this question. 14.Respondents were asked if their place of work is in an area susceptible to natural hazards. Below is a list of natural hazards and responses from survey respondents: Table 11-7: Place of Work in Hazard Areas Natural HazardResponse Earthquake fault zone7 I don't know5 High-risk flood zone5 Other*4 Liquefaction zone2 Wildland Urban Interface (wildfire risk area)2 Landslide Risk Area1 * The responses to “Other” were: “Flood zone, but not high risk, falling trees, and yoga instructor in homes and parks.” 15.Respondents were asked if their employer has a plan for disaster recovery in place. 16, or 76.2%of respondents, indicated that their employer does have a disaster recovery plan in place. 1, or 4.8%of respondents, indicated that their employer does not have a disaster recovery plan in place. 4respondents were unsure if their employer has a disaster recovery plan in place. 4 respondents skipped this question. 16.Respondents were asked if their employer has a workforce communications plan to implement following a disaster so they may contact their employees. 11, or 57.9%of respondents indicated that their employer doeshave a workforce communications plan. 1, or 5.3%of respondents indicated that their employer does nothave a workforce communications plan. 7, or 36.8%of respondents indicated that they are unsureif their employer has a workforce communications plan. City of Cupertino Local Hazard Mitigation Plan 11-13 May 8, 2012Page| 78 6 respondents skipped this question. 17.Respondents were asked to list any studies that they are aware of being conducted within their community or the county regarding the risk to future hazard events. 8 respondents replied to this question. These answers are summarized below. 17 respondents skipped this question. Stevens Creek Dam Plan Earthquake seismic retrofit Seismic shaking maps Seismic soft story damage maps Regional pre-disaster mitigation Earthquake Flood Dam Failure Power Outage Chemical Spill Fire 18.Respondents were asked what recommendations they have for Santa Clara County and the incorporated cities to improve identification, prioritization, and implementation of actions intended to reduce future damage and increase resiliency. The following recommendations were received: More decisive reinforcement of Lehigh Cement Plant with environmental regulations Increase participation in AlertSCC Stronger retrofit regulations for homes/apartments above a garage Civil engineer analysis of main city and county buildings, schools, and hospitals for retrofits Retrofit soft story buildings and mobile homes Survey all first responders Offer more flexible options for homeowner seismic upgrade self-certifications through licensed professionals Identify staging areas for debris placement throughout the County Walking mile markers in parks (similar to like on freeway) that include estimated time of arrival 19.Respondents were asked to recommend any companies or local associations that should be involved in the Santa Clara County hazard mitigation planning process. The recommended organizations are listed below and were given the opportunity to review the draft plan as noted in the following section. http://airwatch.us/contact.html,info@airwatch.us www.notoxicair.org San Jose State University CESA Earthquake Engineering and Research Institute City of Cupertino Local Hazard Mitigation Plan 11-14 May 8, 2012Page| 79 20.Respondents were asked if they would like to review and comment on a draft of their jurisdictions annex to the Multi-Jurisdictional Multi-Hazard Mitigation Plan. 11, or 55%of respondents said they wouldlike to review and comment on the draft plan. 9, or 45%of respondents said they would notlike to review and comment on the plan draft. 5 respondents skipped this question. Twelve respondents who said they would like to review and comment on the draft plan included their contact information and were given the opportunity to review the draft plan as noted in the following section. 21.Respondents were asked to provideany additional comments/suggestions/questions. The responses are summarized below: Do not extend operating permit to Lehigh Cement Plant in order to minimize air pollution over the next 20 years. Please conduct detailed oversight of emission from the plant. Focus on environmental and health hazards cause by Lehigh Cement Plant and Quarry, while continuing to work on preventative measures for future hazard events. We would buy earthquake insurance, even at a high rate. It’s the deductible that seems unreasonable. Anything SCC can do to influence making insurance more affordable would be huge. I would love to be involved in any way possible. Please contact me. I have lots of ideas and a lot of education and some experience. The lack of controls at the Leigh Southwest Cement and Quarry and the Stevens Creek Quarry to control pollution to air, water, and soil has caused great problems in our community. Same with Apple Computer. Shut down these polluters. They cause many health problems. Make maps showing alternative routes to hospitals, food, family, by foot or bike. Review Opportunities The City of Cupertino held one public meeting and posted information on-line with the public including a survey for comments. We also notified residents and businesses of the hazard mitigation planning process by distributing promotional announcements regarding the public opportunity to respond to the on- line survey. Promotions for the survey included: City website news section article; Radio Cupertino (1670 AM) announcements City Channel’s daily news ticker (Comcast Channel 26/AT&T U-Verse Channel 99) announcements; Monthly Cupertino Scene newsletter Http://www.cupertino.org/modules/showdocument.aspx?documenttid=4030 City of Cupertino Local Hazard Mitigation Plan 11-15 May 8, 2012Page| 80 City Facebook page http://www.cupertino.org/facebook City Twitter page http://www.cupertino.org/twitter 11.3CA APABILITY SSESSMENT 11.3.1Mitigation Progress 11.3.1.1Strategy Rankings In preparation of the 2005 plan, the City helped ABAG in the development and review of the comprehensive regional list of mitigation strategies. Similarly, the City participated in the revision of the regional strategies for development of this annex. Appendix G of Taming Natural Hazards presents a summary list of mitigation strategies with regional priorities and the hazards mitigated. The City ranked those strategies in a spreadsheet provided by ABAG using the following scale: Existing Program Existing Program, Underfunded Very High –Unofficial Program –Becomes Official on PlanAdoption, No Funding Needed High –Actively Looking for Funding Moderate Under Study Not Applicable, Not Appropriate, or Not Cost Effective Not Yet Considered Results of this ranking may be viewed online at http://www.abag.ca.gov/bayarea/eqmaps/mitigation/strategy.html. A summary of these rankings is presented in Cupertino Attachment 1: Cupertino Strategies 2010, in Section 11.7. The countywide Local Planning Team reviewed the priorities as ranked by the participating Santa Clara County jurisdictions to determine the operational area priorities. The City of Cupertino’s primary objectivesareto improve mitigation activities in the Wildland Urban Interface areas, bring City facilities up to current seismic standards and expand our communication/warning systems capabilities for dam failure notification. New mitigation actions the City of Cupertino has identified are discussed in Section 11.5. 11.3.1.2Completed Projects To reduce wildfirerisk, the City of Cupertino has adopted a Class A roof ordinance, a fire sprinkler ordinanceandthe Wildland Urban Interface (WUI)requirements and accompanyingWUI map. For ongoing preparedness, the City of Cupertino provides outreach and education through evacuation drills and CERT Training for City Staff and the community. City of Cupertino Local Hazard Mitigation Plan 11-16 May 8, 2012Page| 81 11.3.1.3Current Projects There are currentlyno on-going Capital Improvement projects specific to reducing the risk to damage from future natural hazards. 11.3.2Staff and Organizational Capabilities 11.3.2.1Departmental Responsibilities The City of Cupertino operates several departments with capabilities for implementing hazard mitigation strategies. These departments and their roles and responsibilities are summarized in the following table. Table11-8: Key Departments in the City of Cupertino Key Departments in the City of Cupertino Departments City Manager's Offices The City Manager supports programs that empower residents to "Butheir neighborhoods. These programs include: Neighborhood Block Parties o Neighborhood Block Leader o The Manager works closely with the city's public safety provider County Fire Department), as well as with the elementary, high school and college districts. The Administrative Services Department oversees Code Enforcement, Emergency Services, and Finance. Code Enforcement o The Code Enforcement Division is comprised of a staff of four fu-time officers and operates six days per week, Monday through Saturday. Code Enforcement is responsib the Cupertino Municipal Code and various other related codes and obtain compliance through intervention, education, and enforcement. We strive to partner with the community in enforcing neighborhood property maintenance standar maintain property values and create a healthy, aesthetically ple work, and play. Emergency Services o The City of Cupertino's Emergency Preparedness Program provides and to the community to prepare an effective response to natural-caused disasters. The program is a cooperative effort between the City of Cupertino, the Santa Clara County Fire Department and local volunteers. The City of Cupertino and Department offer preparedness classes to Cupertino residents. City of Cupertino Local Hazard Mitigation Plan 11-17 May 8, 2012Page| 82 Key Departments in the City of Cupertino Programs supported by Emergency Services are: Community Emergency Response Team (CERT) o Medical Reserve Corps (MRC) o Cupertino Amateur Radio Emergency Service (CARES) o Neighborhood Watch o Email Community Alert Program (eCAP) o Finance o The Finance Division is responsible for accurate and timely maintenance of all City financial records, collection, disbursements of funds, and the payroll process. Fin preparation of the Comprehensive Annual Financial Report, and pe-long monitoring and analysis of budget-to-actual activities for both operational and capital budgets. City Communication The Communications Departmentis responsible for planning and implementing a comprehensive int external communications program for the city of Cupertino. Communications Mission To increase public awareness, interest, understanding and partic Communications Goals Serve as the communications link between the city and residentia o communities in the region. Ensure all audiences have easy access to information and service o including print, video, Internet, telephone, radio and/or televi Build community pride and positive identification with the city s and o employees. Increase interest and participation in city services and activit o Promote city council and departmental goals, initiatives, progra o Keep employees and elected officials well informed to assist thedents and o other audiences. Assist in creating better internal and external communications. o Enhance our relationship with the news media to enable them to b-way communicators o between city government and the community. Community Development The Community Development department oversees Planning, Building, Housing services. Planning o The Planning Division provides efficient and responsive professi community and implements city development policies, programs, and regulations. The primary City of Cupertino Local Hazard Mitigation Plan 11-18 May 8, 2012Page| 83 Key Departments in the City of Cupertino responsibilities of the Planning Department are to assist the co land uses and policies and to review current development proposa Citys adopted policies andordinances. The Planning Department administers land use regulat while striving to enhance the livability of Cupertino by fosteri sustainable community environment. The Planning Division Staff also provides assistance to local and regional planning efforts of interest to the City. In addition, staff provides assistance to residents and business owners, in order to foster a broader unde Building o The Building Division safeguards the health, safety and welfare of residents, workers a to Cupertino by effective administration and enforcement of buil adopted by the City, and by providing field inspections, plan chion services related to new construction. Environmental Services The Environmental Division is under the Public Works Dept. The responsibility of establishing policies and programs that will precycling services for residents and businesses in the city. The Division monitors implements recycling programs. The Division is also responsible County Urban Runoff Pollution Prevention Program -a regional program mandated to reduce the toxicity and volume of stormwater runoff in municipal storm drain systems. Ad environmental issues including: energy concerns, water conservatn concerns, and the disposal of hazardous waste. Public Safety Public safety services include the Sheriffs Office and the Fire Fire o The mission of the Santa Clara County Fire Department is to prot environment within the communities served from fires, disasters and emergency inc education, prevention and emergency response. For more info visiat www.sccfd.org. The Santa Clara County Fire Department is a unique fire districtved into a progressive, full service fire department over the past 60 years district consolidations, County Fire now provides fire protectio Cupertino, Los Altos, Monte Sereno, Morgan Hill, Saratoga; the towns of Los Altos Hills and Los Gatos and adjacent unincorporated County areas. City of Cupertino Local Hazard Mitigation Plan 11-19 May 8, 2012Page| 84 Key Departments in the City of Cupertino The Santa Clara County Fire Department has grown to include 17 f approximately 100 square miles and serves a population of over 26,000 residents. County Fire employs 283 personnel to provide fire suppression, emergency med hazardous materials regulation and response, rescue and extricat investigation services. The departments suppression force is also augmented by volunteer firefighters and CalFire in the western foothills. Sheriffs Office o The Santa Clara County Sheriffs Office, West Valley Division, p to the City of Cupertino as well as the communities of Saratoga, Los Altos Hills, Moffett, and the unincorporated areas of the western Santa Clara County. The Sher with the Santa Clara County Superior Court, Valley Transportatio County Parks Department for law enforcement services. The Santa has 586 sworn personnel assigned to these and other divisions. There are twenty-eight deputies allocated to the City of Cupertino. Four deputies traffic enforcement; three are assigned to the Motorcycle Unit a deputies are School Resource Officers, providing the fourteen sc enforcement resource and liaison to the Sheriffs Office. One adional deputy handles all the enforcement incidents that arise at the schools. The remaining t-one deputies perform routine patrol functions, twenty-four hours a day. The Santa Clara County Sheriffs Office is committed to providinnforcement services and maintaining healthy community partnerships. Deputie community events in the City of Cupertino. The West Valley Divis oriented services in addition to routine law enforcement services. Some of these programs are Child Fingerprinting, Property ID, Teen Academy, Child Safety Se Patrol Checks. The Department of Public Works is responsible for the design, coed facilities including public streets, sidewalks, curb, gutter, st departments include: Maintenance o Engineering & Development o The Engineering Division provides design and construction adminifor all capital improvement programs including streets, buildings, parks, utilities, and pav for all private developments including residential, commercial a standards. Inspection services ensure compliance with city standards on Capital Projects o Traffic Engineering o Environmental Programs o City of Cupertino Local Hazard Mitigation Plan 11-20 May 8, 2012Page| 85 With a clear hazard mitigation strategy, as outlined in this Local Hazard Mitigation Plan, the City’s departments are able to implement their ongoing policies and programs with consideration of the identified hazard risks. In addition, these departments become aware of priority mitigation actions and can offer resources (financial or staffing) to assist with the implementation of those actions. 11.3.2.2Technical Capability For a successful mitigation program, it is necessary to have a diverse breadth of staff and technical capabilities. Planners, engineers, building inspectors, emergency managers, floodplain managers, people familiar with Geographic Information Systems (GIS), and grant writers are all essential to implementing mitigation actions. The following table summarizes the staffing capabilities available within the City of Cupertino. Table 11-9: Technical Capability Matrix Technical Capability Matrix Land Use PlannersPlanning Department Emergency managerEmergency Services Building Department, Public Civil or Building Engineers Works Floodplain managerPublic Works Staff knowledgeable about Emergency Services hazards Information Technology GIS staff Department Grant writersPublic Works 11.3.2.3Fiscal Capability Sales Tax and Property Tax are the primary sources of Cupertino’s financial resources. The City has allocated the majority of financial resources to Public Safety and Public Works. These two categories are all relevant for implementing hazard mitigation actions. 11.3.2.4Policy or Program Capability The City of Cupertino has several plans and ordinances in place which provide ample opportunities for implementing the hazard mitigation strategy outlined in this plan. City of Cupertino Local Hazard Mitigation Plan 11-21 May 8, 2012Page| 86 11.3.2.4.1Summary of Plans that Support Hazard Mitigation Emergency Operations Plan The Emergency Operations Plan chapter on Hazard Mitigation outlines Cupertino’s potential hazards and echo’s the General Plan’s strategies to reduce hazards. In addition, the Emergency Plan outlines an extensive community outreach/public education program to provide residents and businesses the knowledge and skills necessary to mitigate for themselves. General Plan Cupertino’s General Plan promotes health and safety. Safety measures include conventional police, fire, paramedic and health services; disaster planning, safe buildings and site design oriented to the public streets, neighborhood watch programs, and protection from natural hazards including earthquakes and landslides and an amplesupply of safe, well designed parks, open space, trails and pathways. Cupertino’s General Plan facilitates hazard mitigation in several ways. Following is a brief summary of three General Plan Elements highlighting the capabilities for implementing and supporting hazard mitigation. (1)Safety Element Safety plays a significant role in disaster planning for Cupertino. The City has developed its own emergency plan to increase emergency preparedness.This plan has been prepared in compliance with the National Incident Management System (NIMS) guidelines.It addresses multiple hazards and functions under a continuous cycle of preparation, response, recovery and mitigation. Cupertino has its own goal to develop a high level of emergency preparedness to cope with both natural and human caused disasters. Resources are available through the Emergency Preparedness website and are available in written and digital form. The Safety Element outlines the fire risk recognized by the City. Cupertino’s geographical boundaries extend from the lower foothills of the Santa Cruz Mountain Range at its westerly limits to the urbanized valley floor atits northerly, easterly and southerly limits. For this reason, Cupertino is exposed to hazards from both wild and urban fires. These two types of fire hazards have their own unique characteristics and present different fire-fighting problems and safety concerns. Wild fires are a threat to residents living in the rural areas of the foothills. If not contained, wild fires can have a devastating effect on a community, causing injuries and consuming vegetation and structures in their path. Urban fires pose other problems. They may include fires in high–rise buildings, multiple residential structures, or fires in commercial and industrial buildings where highly flammable and toxic materials may be stored. City of Cupertino Local Hazard Mitigation Plan 11-22 May 8, 2012Page| 87 (2)Land Use Element Cupertino is working to apply ordinance regulations and development approvals to limit development on ridgelines, hazardous geological areas, and steep slopes. The City strives to follow natural land contours to avoid mass grading during new construction, especially in flood hazard or hillside areas. The Land Use element states that grading large, flat areas shall be avoided through land use planning. Cupertino assesses the potential air pollution effects of future land use and transportation planning to ensure that planning decisions supportregional goals of improving air quality. Cupertino determined that land use and building design standards must relate to the degree of geologic and seismic hazards in the zone in which a proposed project would be built so that an acceptable level of riskcan be assigned. City planning staff work with developers to ensure that all CEQA requirements are met, encourage performance based design to exceed life safety, and seek to achieve continuing functionality of critical infrastructure and facilities where hazardous materials and hazardous wastes are used or stored. Cupertino is working to reinforce the existing public education programssuch as our Cert Training program,relating to land use in order to help residents reduce risk to earthquake hazards. The city recognizes that multi-story buildings increase risks of fire. The city is working to ensure that adequate fire protection is built into the design of new construction and require on-site fire suppression materials and equipment. Cupertino is aware that increased land use through development necessitates further floodplain management. The Land Use element states that land uses in the flood plain should allow the public access to the creek, but materials that would restrict the free flow of the creek waters or significantly disturb the riparian environment should be prohibited. To meet the demand of increasing development the city has developed different land use categories and their exposure to acceptable risk. (3)Housing Element All private occupancystructures are grouped according to the acceptable level of risk. Cupertino publishes and promotes emergency preparedness activities and drills. The City strives to use the Cupertino Scene and website to provide safety tips that may include identifying and correcting household hazards, knowing how and when to turn off utilities, helping family members protect themselves during and after an earthquake, recommending neighborhood preparation activities, and advising residents to maintain an emergency supply kit containing first-aid supplies, food, drinking water and battery operated radios and flashlights. The city encourages participation in Community Emergency Response Team (CERT) training in which neighborhood groups are taught how to care for themselves during disasters.The City also teaches a highly successful, free, three hour, Personal Emergency Preparedness Workshop on a monthly basis. Prevention of Floodplain Damage Ordinance City of Cupertino Local Hazard Mitigation Plan 11-23 May 8, 2012Page| 88 Cupertino’s Prevention of Flood Damage Ordinance requires a development permit to be obtained before any new construction or substantial improvements are allowed within a special flood hazard area. In order to obtain a permit, the following information is required: proposed elevation of the lowest floor of all structures, proposed elevation of any structures which have been floodproofed, and a description of the extent to which any watercourse will be altered or relocated as a result of the development. The Director of Public Works is appointed to administer and implement this Ordinance and also has the responsibility of granting or denying development permit applications. Methods used to reduce flood damage include anchoring, elevating, and building with flood resistant materials. New residential construction should have thelowest floor, including the basement, elevated to one foot above base flood elevations. New and replacement water supply and sanitary sewage systems should be designed to minimize infiltration of floodwaters into the system and discharge from the systemsinto floodwaters. Regulations for subdivisions, manufactured homes, nonresidential construction, and more stringent standards for Zone AO and Floodways are also listed in this Ordinance. Capital Improvements Plan Commercial development is growing in Cupertino. Homestead Square, which is now the site of 153,000 square feet of commercial retail space, is scheduled to grow to approximately 205,000 square feet. Cupertino Village, near Homestead Square, is also expected to grow, adding approximate 25,000 square feet of retail and 54,000 square feet of structured parking. 46,000 square feet of new retail space is also expected to be built in Cupertino Square. The expansion of mixed use development is also occurring in Cupertino. The Oaks Shopping Center, consisting of 56,000 square feet of a hotel and retail/office/convention center space, has been approved. A large scale mixed use development project, Main Street Cupertino, is approved to take place on Stevens Creek Boulevard between Finch Avenue and Tantau Avenue. This project would consist of up to 150,000 square feet of commercial use, 100,000 square feet of office space, a 145,000 square foot athletic club, 160 senior housing units, a 5-story hotel, and a .75 acre park. Another large scale mixed use development project that is under construction is the Rose Bowl Mixed Use Project, which includes 204 residential units, 120,000 square feet of new retail space, and a parking structure. Residential development is also taking place in Cupertino. The largest of these projects, The Grove and Villa Serra Apartments on North Stelling Road between Homestead Road and Interstate 280, will create a total of 504 units, a recreational facility, and a public park on 25.43 acres. 11.3.2.4.2Summary of Ordinances that Support Hazard Mitigation City of Cupertino Local Hazard Mitigation Plan 11-24 May 8, 2012Page| 89 Table 11-10: Availability of Ordinances that Support Hazard Mitigation Availability of Ordinances that Support Hazard Mitigation City of YesYesYesPendingYesYesYesYes Cupertino The City of Cupertino identified several ordinances and policies currently utilized for hazard mitigation in the matrix of regional mitigation strategies prepared by ABAG as part of the 2010 plan update. Below is a summary of these key ordinances and policies. Cupertino Municipal Code –Stormwater Pollution Prevention and Watershed Protection The U.S. Environmental Protection Agency has identified urban storm water runoff as the leading cause of water pollution in the United States. Furthermore, both federal and state agencies have identified storm water runoff as a major source of pollution adversely impacting the beneficial uses of the South San Francisco Bay. As a result, the California Regional Water Quality Control Board, San Francisco Bay Region, has issued the City of Cupertino a National Pollutant Discharge Elimination System (“NPDES”) permit. The NPDES permit requires that the City of Cupertino implement a Storm Water Management Program to control storm water runoff so that it does not cause or contribute to a violation of the water quality standards of South San Francisco Bay. The purpose of this Chapter is, therefore, to protect health, life, resources and property by providing minimum requirements designed to control the discharge of pollutants into the City of Cupertino's storm drain system and to assure that discharges from the City of Cupertino storm drain system comply with applicable provisions of the Federal Clean Water Act and National Pollutant Discharge Elimination System Permit No. CA0029718. Enactment of this Chapter falls within the scope of the City of Cupertino police powers to protect the health, safety, and welfare of its residents. Nothing in this Chapter is intended to preclude more stringent federal or state regulation of any activity covered by this Chapter. Cupertino Municipal Code –Prevention of Flood Damage This chapter shall apply to all areas of special flood hazard within the City. The Special Flood Hazard Area identified by the Federal Insurance Administration in a scientific and engineering report entitled“The Flood Insurance Study for the City of Cupertino,” dated November, 1979, with accompanying Flood Insurance Rate Maps as amended from time to time, is adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on filein the Department of City of Cupertino Local Hazard Mitigation Plan 11-25 May 8, 2012Page| 90 Public Works. The goal of this chapter is to reduce the amount of damages from floods in the City of Cupertino. Cupertino Municipal Code –Fire Code Thisis adopted by the City of Cupertino for the purpose of prescribing regulationsgoverning conditions hazardous to life and property from fire or explosion, that certain code known as the 2007 California Fire Code and also the 2006 International Fire Code, including Appendix Chapters 1, 4, B and C and the whole thereof, save and except such portions as are hereinafter deleted, modified or amended by this ordinance, of which one copy has been filed for use and examinedby the public in the office of the City Building Official and the City Fire Chief and the same adopted and incorporatedas fully as if set out at length herein, and from the date on which this ordinance shall take effect, the provision thereof shall be controlling within the limits of the City of Cupertino. There are sections of the code relating to general precautions, emergency planning and preparedness, and a large portion of the code contains requirements for wildland-urban interface fire areas. 11.3.3National Flood Insurance Program For decades, the national response to flood disasters was simply to provide disaster relief to flood victims. Funded by citizen tax dollars, this approach failed to reduce losses and didn't provide a way to cover the damage costs of all flood victims. To compound the problem, the public generally couldn't buy flood coverage from insurance companies, because private insurance companies consider floods too costly to insure. In the face of mounting flood losses and escalating costs of disaster relief to U.S. taxpayers, Congress established the National Flood Insurance Program (NFIP). The goals of the program are to reduce future flood damage through floodplain management, and to provide people with flood insurance. Community participation in the NFIP is voluntary. The City of Cupertino has participated in the National Flood Insurance Program since1974. All residents of the City are eligible to purchase federal flood insurance. The City continues to maintain full compliance with the NFIP. The Public Works Department administers the City of Cupertino’s Flood Prevention Program. The City of Cupertino participates in the NFIP with several designated areas dispersed throughout the city located within an identified flood zone. Cupertino adopted a “Prevention of Flood Damage” ordinance in the City’s Municipal Code. The GIS coordinatorwith the Information Technology Department maintains the current GIS map layer that identifies the flood zones. There have been no issues with community participation and effective implementation of the program. Cupertino’s Flood ordinance calls for the continued participation in floodplain management and in participation with the NFIP. 11.3.3.1Community Rating System (CRS) City of Cupertino Local Hazard Mitigation Plan 11-26 May 8, 2012Page| 91 The CRS is a voluntary part of the National Flood Insurance Program that seeks to coordinate all flood-related activities, reduce flood losses, facilitateaccurate insurance rating, and promote public awareness of flood insurance by creating incentives for a community to go beyond minimum floodplain management requirements. The incentives are in the form of insurance premium discounts. CRS ratings are on a 10-point scale (from 10 to 1, with 1 being the best rating), with residents of the community who live within FEMA’s Special Flood Hazard Areas (SFHA) receiving a 5% reduction in flood insurance rates for every Class improvement in the community’s CRS rating. The City of Cupertino joined the Community Rating System in October 2005 and has a current class rating of 8. Properties within FEMA’s Special Flood Hazard Areas in Cupertino receive a 10% reduction in flood insurance rates. Properties outside the SFHA within Cupertino receive a 5% discount in flood insurance rates. All insurance rates are based on where the structure is located in FEMA’s Flood Insurance Rate Maps (FIRMs). The most recent Digital FIRMs were adopted by the City on May 18, 2009. 11.3.3.2Repetitive Loss Properties The Federal Emergency Management Agency (FEMA) insures properties against flooding losses in the Bay Area through the National Flood Insurance Program. As part of the process to reduce or eliminate repetitive flooding to structures across the United States, FEMA has developed an official Repetitive Loss Strategy. The purpose behind the national strategy is to identify, catalog, and propose mitigation measures to reduce flood losses to the relatively few number of structures that absorb the majority of the premium dollars from the national flood insurance fund. Arepetitive loss propertyis defined by FEMA as “a property for which two or more National Flood Insurance Program losses of at least $1,000 each have been paid within any 10- year period since 1978.” The City of Cupertino has one repetitive flood loss property. The following is a table summarizing repetitive losses in the City.The City plans to require flood damage prevention measuresper the adopted Flood Ordinanceas a condition of issuing a building permit to repair the damage. City and Total Average Properties (as of LossesProperties CountyPayments ($)Payment ($)2004) Cupertino49,259.6224,629.81211 Source: http://quake.abag.ca.gov/mitigation/floodloss/ City of Cupertino Local Hazard Mitigation Plan 11-27 May 8, 2012Page| 92 11.3.4Resource List: Documents used in the assembly of this Capability Assessment include: City website, General Plan, Prevention of Flood Damage Ordinance, Development Activity Report, Cupertino Municipal Code – Stormwater Pollution Prevention and Watershed Protection, Cupertino Municipal Code –Prevention of Flood Damage, Cupertino Municipal Code –Fire Code. 11.4VA ULNERABILITY SSESSMENT 11.4.1Critical Facilities The City identified 24 critical facilities during the development of this 2010 annex. A summary listing of these facilities isshown in Table11-11. Table 11-11: City of Cupertino Critical Facilities Facility NameAddressCritical Function Water TankMERCEDES RD (end)Utility Blackberry Retreat Center21975 SAN FERNANDO AVEEOC Monta Vista Classroom22601 VOSS AVENUEShelter Monta Vista Rec Center22601 VOSS AVENUEShelter Water TankRANCHO SAN ANTONIO CO PARKUtility Svc Ctr -Grounds Shop10555 MARY AVENUEResponse/Recovery Ops Svc Ctr -Mechanic Shop10555 MARY AVENUEResponse/Recovery Ops Svc Ctr -Admin10555 MARY AVENUEResponse/Recovery Ops Svc Ctr -Fuel Island10555 MARY AVENUEResponse/Recovery Ops Svc Ctr -Hazmat Storage10555 MARY AVENUEResponse/Recovery Ops Svc Ctr -Welding Shop10555 MARY AVENUEResponse/Recovery Ops Sports Center21111 STEVENS CREEKShelter Senior Center21251 STEVENS CREEKShelter Community Hall10350 Torre AvenueShelter Library10800 Torre AvenueCultural Value Pumping Station10450 MANN DRIVEUtility Water Tank10450 MANN DRIVEUtility Stocklmeir22120 Stevens Creek BlvdHistoric Structure Tank HouseNext to Blue PheasantHistoricStructure Well #3Flowering Peard Dr & CedarbrookUtility Well #2HOMESTEAD RD & FRANCO CTUtility Quinlan Community Center10185 N. STELLING RDShelter Svc Ctr -Equipment Storage10555 MARY AVENUEResponse/Recovery Ops City of Cupertino Local Hazard Mitigation Plan 11-28 May 8, 2012Page| 93 Facility NameAddressCritical Function City Hall10300 TORRE AVENUEEOC This list of critical facilities and available information for them is available digitally.A complete printing of the critical facilities data is included in Cupertino Attachment 2: Cupertino Exposure Analysis. 11.4.2Exposure Analysis Exposure analyses are used to quantify assets which are “exposed” to risk. This is the first step towards understanding the complete value of assets at risk to identified hazards. This section includes an exposure analysis (discussion of assets at risk) for the profiled hazards in Section 4. Overlay analyses (using GIS) were conducted for the mappable hazards such as wildfire, flood, and the earthquake related hazards. These analyses compare the location of the critical facilities with the mapped hazard area (i.e. floodplains, wildfire threat zones, shaking potential areas, etc.) and result in a listing of which facilities are at most risk to which hazard. Not all hazards are mappable and some hazards, such as drought, are equally likely throughout the entire County. For these hazards, a general exposure summary is presented in Section 11.4.2.1. 11.4.2.1General Exposure ABAG’s website (http://quake.abag.ca.gov/mitigation/landuse/) presents the results of the regional exposure analysis through a searchable online database. Users can view the summaries of land use and infrastructure exposed to the mappable hazards. This section presents the general summary of landuse and infrastructure in the City of Cupertino.These should be considered at risk to the hazards of equal likelihood throughout the entire County geography (i.e. drought, extreme heat, thunderstorm, etc). JURISDICTION:Cupertino COUNTY:Santa Clara HAZARD:Land Use BASIS:Existing Land Use, 2005 using 2009 hazardmapping Total Acres TOTAL RESIDENTIAL LAND [excluding mixed use]:3,042 1 unit/1-5 acre lot (Rural Residential)273 1-3 units/acre267 3-8 units/acre2,119 >8 units/acre383 Mobile Home Parks0 TOTAL MIXED RESIDENTIAL/COMMERCIAL:0 Within a Land Area0 City of Cupertino Local Hazard Mitigation Plan 11-29 May 8, 2012Page| 94 Within a Building0 Mixture of Above or Unknown0 TOTAL MIXED COMMERCIAL/INDUSTRIAL:32 TOTAL INDUSTRIAL [excluding mixed]:267 Light Industrial31 Heavy Industrial227 Salvage/Recyling, Mixture or Unknown0 Food Processing, Warehousing9 TOTAL MAJOR INFRASTRUCTURE:1,252 Roads, Highway and Related Facilities1,244 Rail Stations, Yards and Related Facilities0 Airports0 Ports0 Power Facilities0 Municipal WastewaterFacilities0 Municipal Water Supply Facilities0 Communication Facilities9 Infrastructure--Other, Unknown0 TOTAL MILITARY:0 Military Residential0 Military Hospital0 Military Communications0 Military Airport or Port0 General Military0 Open Military Lands0 Closed Military Facilities0 TOTAL COMMERCIAL/SERVICES [excluding mixed]:995 Subtotal-Commercial:562 Retail/Wholesale213 Research/Office167 Comm. Outdoor Recreation13 Other,Mixture or Unknown169 Subtotal-Education:376 Educational Offices and Day Care0 Elementary/Secondary249 Colleges/Universities125 Stadium Facilities0 University Housing0 Day Care Facilities2 Subtotal-Hospitals andHealth Care3 City of Cupertino Local Hazard Mitigation Plan 11-30 May 8, 2012Page| 95 Trauma Center Hospitals0 Community or Local Hospitals3 Surgery Centers0 State Prisons0 State Mental Health Facilities0 Clinics and Long-Term Care0 Subtotal-Public Institutions:53 Convention Centers0 Sports Stadiums0 Churches/Synagogues/Other46 City Halls/County Administration2 Local Jails0 Local Police/Fire/Emergency0 Other-Comm. Centers/Libraries5 TOTAL URBAN OPEN:571 Golf Courses53 Racetracks0 Campgrounds and Other0 Cemeteries49 Parks358 Vacant--Cleared for Redevelopment0 Vacant--Undeveloped92 Mixed Urban Open, Including Parks19 TOTAL AGRICULTURE:13 Cropland and Pasture3 Orchards/Groves/Vineyards10 Greenhouses0 Confined Feeding0 Farmsteads and Inactive0 TOTAL RANGELAND:522 Herbaceous Range456 Shrub and Brush66 Mixed Range0 TOTAL WETLANDS [Based on USGS Mapping]:0 Forested0 Non-Forested0 Salt Evaporators0 Wetlands--Unknown0 TOTAL FOREST LAND:237 Deciduous17 City of Cupertino Local Hazard Mitigation Plan 11-31 May 8, 2012Page| 96 Evergreen163 Mixed Forest56 TOTAL SPARSELY VEGETATED:31 Beaches0 Other Sand0 Bare Rock3 Mines/Quarries27 Transitional--Landfills0 Transitional--Other0 Transitional--Mixture0 Mixed Sparsely Vegetated0 ========= Total Acres TOTAL URBAN LAND:6,159 TOTAL NON-URBAN LAND:803 GRAND TOTAL:6,962 Source:Association of Bay Area Governments, 2009. Note:Because of independentrounding, subcategories may not add to totals. JURISDICTION:Cupertino COUNTY:Santa Clara HAZARD:Land Use BASIS:Existing Infrastructure, 2009 Total Miles ROADS:203 Interstate Highway11 Primary US/State Highway0 Secondary State/Co Highway33 Local Road140 Misc Ramp/Road18 TRANSIT:0 Altamont Commuter Express (ACE)0 Amtrak0 Bay Area Rapid Transit (BART)0 Caltrain0 San Francisco Muni Metro0 Santa Clara VTA0 4 City of Cupertino Local Hazard Mitigation Plan 11-32 May 8, 2012Page| 97 RAIL: All Railroads4 PIPELINES:174 Pipelines Under Roads174 ========= Source:Association of Bay Area Governments, 2009. Miles of pipeline is an approximation based on miles of road within water service area boundaries and does not include major auqeducts. Miles of pipeline is miles of water pipelines. Miles of sewer pipelines should be approximately the same. Note:Because of independent rounding, subcategories may not add to totals. 11.4.2.2Critical Facilities Exposure by Hazard ABAG’s website (http://quake.abag.ca.gov/mitigation/cf2010/) presents the results of the regional facilities exposure analysis through a searchable online database. Users can view the summaries of how many facilities are exposed to the mappable hazards by category: health care facilities, schools, critical facilities, and bridges/interchanges. For the purposes of developing a City specific mitigation strategy, this section identifies which of the City’s critical facilities are located in the mapped hazard areas. The complete results from ABAG’s exposure analysis are available digitally. A complete printing of these results is included in Cupertino Attachment 2: Cupertino Exposure Analysis. City of Cupertino Local Hazard Mitigation Plan 11-33 May 8, 2012Page| 98 11.4.2.2.1Earthquake Related Hazard Ground Shaking Source: CA Department of Conservation Peak Bldg Contents Acceleration Perceived Potential Instrumental Insured Insured Critical Facility(%G)ShakingDamageIntensityValueValue Very Water Tank135ExtremeHeavyX+ Monta Vista Very Classroom135ExtremeHeavyX+ Monta Vista Rec Very Center135ExtremeHeavyX+$3,625,015$246,774 Blackberry Very Retreat Center125ExtremeHeavyX+$704,865 Very Pumping Station125ExtremeHeavyX+ City of Cupertino Local Hazard Mitigation Plan 11-34 May 8, 2012Page| 99 Peak Bldg Contents Acceleration Perceived Potential Instrumental Insured Insured Critical Facility(%G)ShakingDamageIntensityValueValue Very Water Tank125ExtremeHeavyX+ Very Stocklmeir125ExtremeHeavyX+$0$0 Very Tank House125ExtremeHeavyX+$0$0 Water Tank115ViolentHeavyIX Svc Ctr -Grounds Shop115ViolentHeavyIX Svc Ctr - Mechanic Shop115ViolentHeavyIX$958,949$258,467 Svc Ctr -Admin115ViolentHeavyIX$1,619,524$224,402 Svc Ctr -Fuel Island115ViolentHeavyIX Svc Ctr -Hazmat Storage115ViolentHeavyIX Svc Ctr -Welding Shop115ViolentHeavyIX Sports Center115ViolentHeavyIX$3,939,790$257,603 Senior Center115ViolentHeavyIX$4,788,087$406,843 Community Hall115ViolentHeavyIX$0$0 Library115ViolentHeavyIX$0$0 Quinlan Community Center115ViolentHeavyIX$7,838,469$388,427 Svc Ctr - Equipment Storage115ViolentHeavyIX City Hall115ViolentHeavyIX$6,000,775$1,996,052 Well #3105ViolentHeavyIX Well #2105ViolentHeavyIX Soft Story Multi-Family Dwellings In 2003, the Collaborative for Disaster Mitigation at San Jose State University completed an “Inventory of Soft-First Story Multi-Family Dwellings in Santa Clara County”. At that time, the city of Cupertino had 53 soft-first story multi-family buildings including 2,597 residential units housing 6,493 occupants. Figure 11-1belowidentifies the locations of these buildings.Note: This inventory did not seek to identify if structures had been seismically updated. This map does not imply that the City of Cupertino Local Hazard Mitigation Plan 11-35 May 8, 2012Page| 100 structures are unsafe. Additional investigation is needed to verify which structures actually need to be retrofitted. Figure 11-1: Inventory of Soft-First Story Multi-Family Dwellings-City of Cupertino City of Cupertino Local Hazard Mitigation Plan 11-36 May 8, 2012Page| 101 Earthquake Induced Liquefaction Source: Santa Clara Planning Office Critical Liquefaction HazardBldg Insured Contents Insured FacilityZoneValueValue Tank HouseHigh StocklmeirHigh City of Cupertino Local Hazard Mitigation Plan 11-37 May 8, 2012Page| 102 Surface Rupture Source: California Geologic Survey, State of CA Department of Conservation Within Fault Rupture Hazard Bldg Insured Contents Insured Critical FacilityZoneValueValue Water TankYes Monta Vista ClassroomYes Monta Vista Rec CenterYes$3,625,015$246,774 Water TankYes City of Cupertino Local Hazard Mitigation Plan 11-38 May 8, 2012Page| 103 Earthquake Induced Landslides Source: Santa Clara Planning Office, CA State Department of Conservation Critical Within Landslide Hazard Bldg Insured Contents Insured FacilityZonesValueValue Water TankYes 11.4.2.2.2Infrastructure Failure The City of Cupertino does not have any unique concerns or vulnerabilities regarding the hazard of infrastructure failure as presented in Section 4. City of Cupertino Local Hazard Mitigation Plan 11-39 May 8, 2012Page| 104 11.4.2.2.3Wildfire Source: CA Department of Forestry and Fire Protection Critical Fire Hazard Bldg Insured Contents Insured FacilityZoneValueValue Water TankHigh Water TankHigh City of Cupertino Local Hazard Mitigation Plan 11-40 May 8, 2012Page| 105 11.4.2.2.4Flooding Source: FEMA-Santa Clara County DFIRM, 2009 Flood Zone (%Bldg Insured Contents Insured Critical Facilityannual chance)ValueValue Stickelmeir1% Water Tank.2% Monta Vista Classroom.2% Monta Vista Rec Center.2%$3,625,015$246,774 Svc Ctr-Grounds Shop.2% Svc Ctr-Mechanic Shop.2%$958,949$258,467 Svc Ctr-Admin.2%$1,619,524$224,402 .2% Svc Ctr-Fuel Island .2% Svc Ctr-Hazmat Storage .2% Svc Ctr-Welding Shop Sports Center.2%$3,939,790$257,603 City of Cupertino Local Hazard Mitigation Plan 11-41 May 8, 2012Page| 106 Flood Zone (%Bldg Insured Contents Insured Critical Facilityannual chance)ValueValue .2% Senior Center$4,788,087$406,843 .2% Community Hall .2% Library .2% Well #3 .2% Well #2 Quinlan Community .2% Center$7,838,469$388,427 Svc Ctr-Equipment .2% Storage .2% City Hall$6,000,775$1,996,052 Sea Level Rise There are no facilities in the City of Cupertino at risk to sea level rise. 11.4.2.2.5Drought All populations, facilities, and assets are equally at risk to impact from drought. The City of Cupertino does not have any unique concerns regarding the hazard of drought as presented in Section 4. 11.4.2.2.6Solar Storm All populations, facilities, and assets are equally at risk to impact from solar storm events. The City of Cupertino does not have any unique concerns regarding the hazard of solar storm as presented in Section 4. City of Cupertino Local Hazard Mitigation Plan 11-42 May 8, 2012Page| 107 11.4.2.2.7Dam Failure Source: ABAG, 1995. Dam data from State of California Office of Emergency Services Dam Failure Bldg Insured Contents Insured Critical FacilityInundation AreaValueValue Tank House100 Blackberry Retreat Center1$704,8650 Well #2100 Well #3100 The Stevens Creek dam and water district reservoir is uphill from the City of Cupertino and present hazards of inundation due to high ground shake potential in the area. City of Cupertino Local Hazard Mitigation Plan 11-43 May 8, 2012Page| 108 11.4.2.2.8Disease Outbreak All populations, facilities, and assets are equally at risk to impact from disease outbreak. The City of Cupertino does not have any unique concerns regarding the hazard of disease outbreak as presented in Section 4. 11.4.2.2.9Freeze All populations, facilities, and assets are equally at risk to impact from freeze occurrences. The City of Cupertino does not have any unique concerns regarding the hazard of freeze as presented in Section 4. 11.4.2.2.10Wind All populations, facilities, and assets are equally at risk to impact from high winds. The City of Cupertino does not have any unique concerns regarding the hazard of wind as presented in Section 4. 11.4.2.2.11Heat All populations, facilities, and assets are equally at risk to impact from extreme heat events. The City of Cupertino does not have any unique concerns regarding the hazard of heat as presented in Section 4. 11.4.2.2.12Agricultural Pest Agricultural pests are not of particular concern to the City of Cupertino. 11.4.2.2.13Thunder and Lightning All populations, facilities, and assets are equally at risk to impact from thunder and lightning events. The City of Cupertino does not have any unique concerns regarding the hazard of thunder and lightning as presented in Section 4. 11.4.2.2.14Siltation –Bay Area Siltation is not of particular concern to the City of Cupertino. 11.4.2.2.15Tornado All populations, facilities, and assets are equallyat risk to impact from tornado occurrences. The City of Cupertino does not have any unique concerns regarding the hazard of tornado as presented in Section 4. City of Cupertino Local Hazard Mitigation Plan 11-44 May 8, 2012Page| 109 11.4.2.2.16Hazardous Materials Transportation accidents leading to hazardous material spills are a noted concern for the City of Cupertino. Similarly, risk of hazardous substance plumes from incubator companies and the Lehigh Cement Plant or industrial facilities on fire are a noted risk for the City of Cupertino. 11.4.2.2.17Landslide and Debris Flow Landslide and Debris Flow is not of particular concern to the City of Cupertino, however, because localfailures may be encountered in hillside areas, a soils report is required as a condition of the issuance of a building permit. 11.4.2.2.18Other Hazards Land Subsidence is not of particular concern to the City of Cupertino.There are many areas in Cupertino that have Expansive Soils. In those areas that encounter expansive soil, a soils report will be required as a condition of the issuance of a building permit for construction of a building or structure. Hailstorms, Tsunamis and volcano eruptionsare not of particular concern to the City of Cupertino. 11.5MS ITIGATION TRATEGY 11.5.1Primary Concerns (goals) Based on the exposure analysis, the most critical facilities in the City of Cupertino are at risk of being impacted by ground shaking or flooding. The City has prioritized identification and retrofitting of soft story structures to be more resilient to earthquake threats. The City is mitigating flood risk on an ongoing basis through the prevention of flood damage ordinance and participation in the NFIP. Two water tanks are located within areas susceptible to surface rupture. Dam failure could cause significant inundation in the City of Cupertino. In addition, to these priorities, the City recognizes the importance of defensible space in wildland urban interface areas. 11.5.2Mitigation Actions. In addition to participating in the Local Planning Team and supporting the implementation of the prioritized county-wide mitigation actions, the City of Cupertino identified the following potential mitigation actions for implementation within the City. City of Cupertino Local Hazard Mitigation Plan 11-45 May 8, 2012Page| 110 Soft-Story Buildings Action #1: Require all new construction, including public facilities, to be built in accordance withthe most recent Buildingand Fire Code standards. Action #2: Consider County Ordinance to require retrofitting of multi-family soft story structures. Consistent with the ABAG definition, “multi-family” buildings consist of three or more families. Action #3: Support City of SanJose initiative to develop Soft-Story Mitigation Program via UASI funding. Program will entail public education materials, engineering standards and financial incentives. Action #4:Explore variousfinancial incentives and remove disincentives. Action #5: Advocate expansion of State and federal relocation assistance funds and programs to aid persons and businesses displaced from hazardous buildings. Dam Failure Complete and adopt the dam plan including: Action #1: Create and distribute evacuation route maps Action #2: Install a siren based alert/warning system Action #3:Develop signage for evacuation route. Implementation of these actions will be the responsibility of the Public Works department, shared with the Community Development department.TheCity will seek funding from appropriate sources such as the Hazard Mitigation Grant Program. Additionally, the Public Works and Community Development departments will coordinate to incorporate these projects in the City’s Capital Improvement Plan as appropriate. 11.6PM LAN AINTENANCE 11.6.1Monitoring, evaluating, updating the plan The Building Dept, Cupertino Office of Emergency Services and Planning Dept.will be accountable for monitoring this plan and documenting progress. They will remain involved with the County’s Local Planning Team and Mitigation Strategy Task Forces to implement countywide and city specific mitigation actions. City of Cupertino Local Hazard Mitigation Plan 11-46 May 8, 2012Page| 111 In coordination with the annual Local Planning Team meetings, the Citywill facilitate development of an annual progress/update report to be stored with this annex and inform future updates. This report will contain items that are noted to be out of date, progress of the identified mitigation actions, and additional information to be included in future revisions of this plan. Per the requirements of the Disaster Mitigation Act of 2000, these parties will facilitate an update to this annex and submit it to Cal EMA/FEMA for approval prior tothe five year expiration date. The public will continue to be involved whenever the plan is updated and as appropriate during the monitoring and evaluation process. Prior to adoption of updates, the City will provide the opportunity for the public to comment on the updates. 11.6.2Point of Contact Comments or suggestions regarding this plan may be submitted at any time to Albert Salvador, Building Official, City of Cupertino. Contact information: Albert Salvador 10300 Torre Ave. Cupertino, CA 95014 alberts@cupertino.org 408.777.3206 City of Cupertino Local Hazard Mitigation Plan 11-47 May 8, 2012Page| 112 11.7CCA ITY OF UPERTINO NNEX City of Cupertino Local Hazard Mitigation Plan 11-48 May 8, 2012Page| 113 11.7.1Cupertino Attachment 2: Cupertino Strategies 2010 In preparation of the 2005 plan, the City helped ABAG in the development and review of the comprehensive regional list of mitigation strategies. Similarly, the City participated in the revision of the regional strategies for development of this annex. Appendix G of Taming Natural Hazards presents a summary list of mitigation strategies with regional priorities and the hazards mitigated. The City ranked those strategies in a spreadsheet provided by ABAG. This is a summary of those rankings. City of Cupertino Local Hazard Mitigation Plan 11-49 May 8, 2012Page| 114 11.7.2Cupertino Attachment 2: Cupertino Exposure Analysis This list includes all information on Cupertino’s critical facilities and identifies which of the City’s critical facilities are located in the mapped hazard areas. City of Cupertino Local Hazard Mitigation Plan 11-50 May 8, 2012Page| 115 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 15, 2012 Subject Cancel the July 17 City Council meeting. Recommended Action Cancel the July 17 City Council meeting. Discussion It has been past City Council practice to cancel one or two meetingsduring the summer.At the May 1 meeting, City Council took a straw vote to add this item to the May 15 agenda. _____________________________________ Prepared by:Grace Schmidt, City Clerk Reviewed by:Carol Atwood,Administrative Services Director Approved for Submission by:Amy Chan,Interim City Manager Attachments:Calendar 133 Council Schedule 2012SMTWTFS 293012345 City Council Cupertino Day Meeting 10:00 am 6:00 pm 6789101112 Teen Commission World Journal Day May Interviews3:30 10:00 am 6:00 pmpm 13141516171819 World Journal Day Audit Commission 10:00 am 6:00 Interviews 5:30 pmpm,City Council Meeting6:45 pm 20212223242526 272829303112 Memorial Day Budget Study HolidaySession, 1:00 or 2:00 TBD 3456789 City Council Summer Concert Jun Meeting6:45 pm6:30 pm 8:00 pm Orrin goneOrrin goneOrrin goneOrrin goneOrrin gone 10111213141516 Summer Concert 6:30 pm 8:00 pm 17181920212223 City Council Summer Concert Meeting6:45 pm6:30 pm 8:00 pm 24252627282930 Summer Concert 6:30 pm 8:00 pm 1234567 Jul City Council Independence Day Summer Concert Meeting6:45 pmCelebration6:30 pm 8:00 pm 891011121314 Summer Concert 6:30 pm 8:00 pm 15161718192021 City Council Summer ConcertShakespeare in the Meeting6:45 pm6:30 pm 8:00 pmPark7:30 pm 22232425262728 Shakespeare in the Shakespeare in the Shakespeare in the Park7:30 pmPark7:30 pmPark7:30 pm 2930311234 Shakespeare in the Shakespeare in the Shakespeare in the Park7:30 pmPark7:30 pmPark7:30 pm 134 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 15,2012 Subject Second reading of an 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 secondreading and enactOrdinance 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). Discussion The proposed Cupertino Municipal Code Section 6.24 was approved by Council during the first reading on May 1, 2012, with the following changes: Strike through the second sentence in Section 6.24.300, clarifying requirements currently in the City’s Franchise Agreement. An additional strikeout was made to clarify that Recology is responsible for enforcing unauthorized debris box placement in the City of Cupertino. Add a clarification at the beginning of Section 6.24.035 to indicate that mandatory recycling in that section applies specifically to multi-family residential and commercial businesses. Assembly Bill 341 (AB 341) –Chesbro, which was passed in 2011, requires all businesses generating greater than or equal to 4 cubic yards per week of solid waste and all multi-family residential dwellings of 5 units or more to arrange for recycling services by July 1, 2012. AB 341 also sets a statewide policy goal of diverting at least 75% of generated solid waste from landfill by the year 2020. The City of Cupertino incorporated a diversion requirement of 75% by November 1, 2014 into its Franchise Agreement with Recology (effective November, 1, 2010). Implementation ofAB 341 will require one additional multi-family complexand thirty-two commercial businessesin the City of Cupertinoto subscribe torecycling services. 135 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. Fiscal Impact Recycling is free to all Cupertino residents and businesses. There will be no financial impact 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 136 ATTACHMENT A 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 (AB341) FOR MULTI- 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 6.24.020 of the Cupertino Municipal Code is hereby amended to read as follows: 6.24.020 Definitions. 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. 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. ation at which containers of garbage, recyclables and compostable materials are placed for collection by the authorized garbage collector. , including but not limited to, material generated 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 from the construction, remodeling, or demolition of buildings and other structures. C, 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. 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. 137 6. the property owner, to pay when due all charges owed to the garbage collector for garbage collection service rendered or to be rendered. 7. means the Director of Public Works and his/her duly authorized agents and representatives. 8. or other facility used for housing one or more persons. 9. Equipmentdebris box or debris bin and vehicles used to transport debris boxes or bins. 109. agents and representatives. 110. substances or objects that are discarded, including but not restricted to, materials, substances or objects commonly referred to as 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, how materials, (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. 121. or entity authorized by the franchise agreement between the Franchisee and the City, in accordance with Section 6.24.120 of this chapter, to collect, receive, carry, transport, and dispose of any garbage produced, kept or accumulated within the City. 132. of garbage, compostable materials and recyclables by an authorized garbage collector. 143. materialsor 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 9.12.020 of the Cupertino City Code for which a hazardous materials storage permit is required. 138 154. -means any premises, excluding a hotel, motel, or lodging house, used for residential purposes containing more than one dwelling unit, irrespective of whether the residency is transient, temporary or permanent. 165. including but not restricted to premises used for industrial, commercial, administrative and professional offices, public and quasi-public buildings, utility and transportation. 176. 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. 187. constituting the premises to which garbage collection service is provided. 198. 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. 2019. the City where any garbage is produced, kept, deposited, placed or accumulated. 210 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. one type of Recyclable Material commingled in 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 must not have more than 10% putrescible or non-recyclable waste. 223. -unit dwelling or multiple-unit dwelling. 23. Single- 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. 242. - designed for occupancy by one family for residential purposes. Each dwelling unit within a condominium project, duplex, townhouse project or apartment, and each second 139 unit 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. Single 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. 263. possession of a premises. Section 2.SECTION 6.24.035 ADDED. A new Section, Section 6.24.035 is hereby added to the Cupertino Municipal Code to read as follows: 6.24.035 Mandatory Recycling for multi-family residential developments and commercial business structures A. All new construction and remodeling of existing multi-family residential and commercial business structures is required to be designed to adequately store containers for recyclables, compostables and garbage. B. All responsible parties of multi-family 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 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 recyclables from the mixed waste and recycling the 140 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 recycling is 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 hauler may verify the responsible party has been granted an exception to the mandatory commercial recycling program from the City Manager or Section 3.SECTION 6.24.300 AMENDED. Section 6.24.300 of the Cupertino Municipal Code is hereby amended to read as follows: 6.24.300 Unauthorized 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 notify any 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 franchised hauler may take legal action to protect the exclusive rights granted to the hauler in the franchise agreement. The following situations are exempt from this section: 141 A) The transporting of garbage or recyclables, by the property owner, that have been generated on the property by the owner of the property or by an individual or entity leasing or renting the property from personally assisting the property owner. B) Collection of recyclable 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 or demolition debris as part of a total service offered by the contractor, where the removal is performed by an employee of the contractor using only equipment owned 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 24. Statement of Purpose. This Ordinance is intended to bring the requirements of Chapter 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 35. 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 46. Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. Section 57. 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 Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. 142 INTRODUCED at a regular meeting of the Cupertino City Council the ____ day of ______________ and ENACTED at a regular meeting of the Cupertino City Council st_____ the 1 day of ______________by the following vote: Vote Members of the City Council Ayes: Noes: Absent: Abstain: ATTEST: APPROVED: ________________________________ Grace Schmidt, Acting City Clerk Mark Santoro, Mayor 143 ATTACHMENT B 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 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 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. 144 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 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 anygarbage 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. 145 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 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, specialpurpose 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 146 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 Recyclingfor multi-family residential developments and commercial business structures A.All new construction and remodeling of existing multi-family residential and commercial business structures is required to be designed to adequately store containers for recyclables, compostables and garbage. B.All responsible parties of multi-family 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. If the franchised hauler transports containers of refuse generated at the commercial business property to a materialrecovery facility for the purposes of mixed waste processing, thereby separating recyclablesfrom the mixed waste and recycling the 147 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 to the hauler inthefranchise agreement. 148 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 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 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. 149 INTRODUCED at a regular meeting of the Cupertino City Council the1stday of Mayand ENACTED at a regular meeting of the Cupertino City Council the _________dayof ,2012by the following vote: VoteMembers of the City Council Ayes: Noes: Absent: Abstain: ATTEST:APPROVED: ________________________________ Grace Schmidt, City ClerkMark Santoro, Mayor 150 CITY ATTORNEY’S OFFICE 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3403www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 15,2012 Subject Second reading amending Cupertino Municipal Code 2.28: 1) removing the residency requirement for the city manager position; 2) amending the number of City Council votes required to remove the City Manager from a 4/5 vote to a majority; and 3) deleting the resolution of intent and removal provisions. Recommended Action Conduct the second reading and enact 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" Description At the May 1, 2012 meeting,Council conducted the first reading of the ordinance amending Chapter 2.28. The second reading reflects the deletion of the residency requirement for the city manager position, the amendment to therequired vote to remove the city manager from a 4/5 voteto a majority and deletingthe resolution of intent and removal provisions. ____________________________________ 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 151 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. B.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 specialmeeting of the Cupertino City Council the 1stday ofMay, 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, City ClerkMark Santoro, Mayor 152 153 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: 2.28.020 Residence Requirement. Residence in the City at the time of appointment shall not be required as a condition of appointment, 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 the City Manager to be vacant. 2.28.090 SuspensionRemovalResignation. A. The removal of the City Manager shall be only upon a four-fifths 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 154 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. DB. 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 special meeting of the Cupertino City Council the 1st day of May, 2012 and ENACTED at a regular meeting of the Cupertino City Council this ____ day of _____, 2012 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ________________________________ Grace Schmidt, Acting City Clerk Mark Santoro, Mayor Formatted: Level 3 155 ORDINANCE NO. 12-2095 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. 156 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 sectionand 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 afixed 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. 157 H.“Outcall massage service” means the engaging in orcarrying 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 podiatrists who 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 inthe 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 which no 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- 158 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 with the 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 fitness training 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 159 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 whoare 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; 160 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 had a 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 suspendedor 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 which the 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 forthin 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); 161 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 with the 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 ofan acceptable form of 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, 162 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) 9.06.070MassageEstablishment 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; 163 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 agencythat 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 164 B.Has completed one the following requirements: 1.Five hundred hours of instruction in a massage specialty and therapeutic approach at aregisteredschool of 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 andpass 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. 165 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,allmassage 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 166 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 establishment shall 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 thelength 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, other than 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 recordsof 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.Ingeneral, 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. 167 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. ( 9.06.196MassageEstablishment 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.Themassage 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 the course 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, 168 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 person to 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 169 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 Attorneyto 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: 170 VoteMembers of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST:APPROVED: ________________________________ Grace Schmidt, Acting City ClerkMark Santoro, Mayor 171 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 15,2012 Subject Appeal for Islands Restaurant Bar and Late Night Hours. Recommended Action Staff recommends that the City Council deny the appeal and uphold the Planning Commission’s March 13, 2012approval, based upon the referenced attachments and the record of this proceeding. This will permit the applicantto operate the future Islands Restaurant in the Crossroads Shopping Center until 12am Sunday through Friday and to 1am on Saturdays, and to have an interiorbar facility within the restaurant. Description Appeal of the Planning Commission’s March 13, 2012approval of a Use Permit (U-2012-01) to allow the restaurantto operate until 12am Sunday through Friday and to 1am on Saturdays, and to allow aseparate bar facility. Appellant:Council Member Barry Chang Applicant: Fancher Development (Byer Properties) Location: 20750 Stevens Creek Boulevard (APNs 359-08-006and359-08-013) Discussion Background On September 6, 2011, the City Council approved aproject (file nos. DP-2011-03, ASA-2011- 12, EXC-2011-10, TR-2011-30) on a 5-0 vote for the construction oftwonew building pads(one to be entirely occupied by the future Islands Restaurant) and associated site improvements for the Crossroads shopping center.A reconsideration request of the Council’s approval based on the Heart of the City front setback exception (EXC-2011-10) was consideredand denied (4-1, Santoro voting no) by the Council on November 15, 2011 hearing. On January 25,2012,Islands Restaurantapplied for a Conditional Use Permit to allow for the extended hours of operation and a bar facility. On March 13, 2012, the Planning Commission approved Islands’ use permit applicationon a 4-1 vote (Sun no).Please refer to Attachment A and Bfor the staff report and meeting minutes. On March 26, 2012, Council Member Barry Chang appealed the Planning Commission’s decision(Attachment C). 172 Planning CommissionHearing The following is a summary of the public comments expressed at the March 13, 2012 Planning Commission hearing: Concerns with noise generation in the parking lotduring late night hours Compatibility of Islands’bar and hours of operation with other similar restaurants in the City The new restaurant building will be located approximately 310 feet from the nearest residential property and further away from the residential neighbors than the previous Marie Callender’s restaurant building.The Santa Clara County Sheriff’s Office reviewed the project and does not foresee any security concerns or negative impacts to the surrounding neighborhood. A condition of approval requires the property owner to address security concerns in the event that they arise and reimburse the City in the event of additional Sheriff’s enforcement time. The hours of operation for Islands would besimilar to other restaurants with interior bar facilities in the City.Elephant Bar and Chili’s areopen to the public until 11pm Fridays and Saturdays; and BJ’s until 12am Sunday through Thursday and 1am Fridays and Saturdays. Basis of Appeal(staff comments in Italic): According to the appellant, “The applicant did not tell the Council that there will be a bar in the IslandsRestaurant.” The appellant did not provide any further explanation or argument.Section 19.12.170 of the Municipal Code requires that appeals “shall state the grounds and basis thereof.”Please see Attachment C for the appeal form. Even though the original applicant(Kahn Design Associates)identified Islands Restaurant as the prospective tenant for one of the newbuilding padswhen the Planning Commission and Council first considered the projectonAugust 9 and September 6, 2011respectively,detailed plans of thefinal interiorlayoutand operatinghours were not specified because Islands’lease agreement had not been finalized.The application for the core and shell did not specify a bar operationsince the interior details had not been finalized. In addition, Islands’ floor plan was prepared later by an architectural firmcontracted by Islands Restaurant--Lee & Sakahara Architects, who werenot associated with the core and shell building pad project. There was no discussion ofa bar facility at the original August 9, 2011 Planning Commission hearing for the core and shell building. At the September 6, 2011 City Council hearing, Cupertino resident,Darrel Lum,mentioned during public testimony that Islands restaurants usually had bars and that bars have higher parking requirements, but the bar issue was not discussed further (see Attachment Dfor minutes).Therefore, theCity Council approval was for the core and shell building pad constructionandshopping centersite improvements, consisting of architectural and site design;tree removals and replacements;parking lot, landscaping, and public right-of-way improvements;and the Heart of the City front setback exception, not for the interior details of the restaurant. On September 15, 2011, Darrel Lum petitioned the reconsideration of the Council’s approval, with one of his points claiming that there was not enough parking supply for a restaurant with a bar. At the November 15, 2011 City Council reconsideration hearing, staff noted in the report 173 (Attachment E) and during the presentation that a Conditional Use Permit (with review by the Planning Commission at a public hearing) would be required if Islands requested an interior bar th facility. The applicant acknowledged this fact at the November 15City Council reconsideration hearing. See Attachment A for the parking study discussion, which addresses parking for a restaurant with a bar. Subsequently, the applicant (different than the core and shellapplicant) applied for a Conditional Use Permit onJanuary 25, 2012. The finalized floor plan with the interior bar (Attachment F)was fully disclosed by the applicant in the plan set forthe March 13, 2012 Planning Commissionpublic hearingfor the conditional use permit.The issues associated with th the interior bar were discussed at the March 13hearing, where the application was approved by the Planning Commission. Conclusion The applicant for the core and shell buildings and site workwas aware that a conditional use permit would be required for the bar and acknowledged this fact at previous public hearings. Islands Restaurant applied for the conditional use permit and went through a public review process through the Planning Commission, where all thefacts of the application were reviewed. The applicant had followed the proper procedures.Appealconsiderations are typically based on procedural errorsor ona land use basis.The Planning Commission reviewed all the facts at the March 13, 2012 public hearing. The appellant has not raised any issues that the Planning Commission did not consider oractions that theycommitted improperly.Therefore, staff recommends that the Council deny the appeal and uphold the Planning Commission’s approval. ____________________________________ Prepared by:George Schroeder,AssistantPlanner Reviewed by: Gary Chao, City Planner; Aarti Shrivastava, Community Development Director Approved for Submission by:Amy Chan,Interim City Manager Attachments: A.Planning Commission staff report dated March 13, 2012 B.Planning Commission meeting minutes fromMarch13, 2012 C.Appeal from Council Member Barry Chang D.City Council meeting minutes from September 6, 2011 E.City Council reconsideration staff report dated November 15, 2011 F.Islands Restaurant floor plan 174 OFFICE OF COMMUNITY DEVELOPMENT CITY HALL CUPERTINO, CA 95014-3255 (408) 777--planning@cupertino.org PLANNING COMMISSION STAFF REPORT Agenda Item No. Agenda Date: March 13, 2012 Applications: U-2012-01 Applicant: Fancher Development (Byer Properties) Location: 20750 Stevens Creek Boulevard (APN 359-08-013 and 359-08-006) APPLICATION SUMMARY: Use Permit (U-2012-01) to allow a restaurant to operate until 12am Sunday through Friday and to on Saturdays and to allow a separate bar facility. RECOMMENDATION: Staff recommends that the Planning Commission approve the Use Permit in accordance with the draft resolution. PROJECT DATA: General Plan Designation Commercial/Office/Residential Specific Plan Heart of the City Zoning Designation P (CG, Res)Planned Development with General Commercial and Residential Uses Environmental Assessment Categorically Exempt Lot Size 40,126 square feet (0.92 acres) Building Area 5,086 square feet (with 579 square foot covered service yard) Project Consistency With: General Plan Yes Zoning Yes BACKGROUND: Previous City Approvals The City Council approved the restaurant pad and associated site improvements in November 2011 as part of a Development Permit, Architectural and Site Approval, H Removal Permit (DP-2011-03, ASA-2011-12, EXC-2011-10, and TR-2011-30, respectively) at the Byer Properties-owned portion of the Crossroads Shopping Center. Building construction is anticipated to start in March/April 2012. Existing Center and Surroundings The project site is located within the Crossroads Shopping Center, on the south side of Stevens Creek Boulevard near the terminus of Saich Way. To the west of the sit Restaurant; future TJ Maxx/Homegoods and Party City to the east; Target and the Bottegas Shopping Center across the street to the north; and a single-family residential neighborhood on Scofield Drive to the south. The nearest residential property line is approximately 310 feet restaurant. 175 U-2012-01 Islands Restaurant Bar and Extended Hours March 13, 2012 Residential area N TJ Maxx, Homegoods, Party City 310 ft. Staples Pizza Hut Islands Shopping Center Vicinity Site Plan DISCUSSION: Application Request The applicant, Fancher Development, on behalf of Islands Restaur operate a bar within a recently approved restaurant pad building to extend the restaurant closing hours until 12am Sundays through Fridays and until 1am on Saturdays. The General Commercial (CG) Ordinance requires that the Planning Commission restaurants with separate bar facilities as well as business ope l Details Islands is a family oriented restaurant catered to lunch and dinner customers. The restaurant anticipates a demand for the extended hours due to the non-traditional work hours of local technology companies. The restaurant proposes to restrict entrance into the restaurant at 11pm Sundays through Fridays and at 12am on Saturdays, and will continue its operations for one hour after doors are closed. The restaurant proposes 206 regular seats, 14 bar seats, and 15 employees per shift. The bar area is integrated within the restaurant. business consists of alcoholic beverage sales. The applicant has prepared a security plan to address safety measures for restaurant patrons and employees (Attachment 2). See Attachment 3 for a letter from Islands regarding the proposed restaurant and Attachment 4 for the trash and delivery plan. Proximity to Residential Area The new restaurant building will be located approximately 310 feet from the nearest residential property and further away from the residential neighbors than the building. In addition, the new restaurant building will be buffered by newly enhanced parking lots with shading trees. The new restaurant will also be required to install an odor abatement system, to minimize any potential odor impacts to the surrounding neighborhood. 176 177 178 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION DRAFT MINUTES 6:45 P.M. March 13, 2012 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting of March 13, 2012 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chair Marty Miller. SALUTE TO THE FLAG . ROLL CALL Commissioners present: Chairperson: Marty Miller Vice Chairperson: Don Sun Commissioner: Winnie Lee Commissioner: Clinton Brownley Commissioner: Paul Brophy Staff present: Community Development Director: Aarti Shrivastava City Planner: Gary Chao Assistant Planner: George Schroeder Senior Planner: Vera Gil APPROVAL OF MINUTES: 1. Minutes of February 14, 2012 Planning Commission meeting: Com. Brownley: Noted that his name was misspelled in the two motions in the February 14, 2012 minutes. MOTION: Motion by Com. Brownley, second by Com. Brophy, and unanimously carried 5-0-0 to approve the February 14, 2012Planning Commission minutes as amended. WRITTEN COMMUNICATIONS: None ORAL COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None CONSENT CALENDAR: None 179 Cupertino Planning Commission March 13, 2012 PUBLIC HEARING 2.U-2012-01 Use Permit to allow a restaurant to operate until 12 a.m. Fancher Development Sunday through Friday and Sunday until 1 a.m. on (Byer Properties) Saturday, and to allow separate bar facilities. 20750 Stevens Creek Blvd. Planning Commission decision final unless appealed George Schroeder, Assistant Planner, presented the staff report: Reviewed the use permit application to allow a separate bar facility at the new Islands Restaurant replacing the Marie Calender restaurant in the Crossroads Center, and to extend the operating hours to midnight Sunday through Friday, and 1 a.m. on Saturdays. He reviewed the background of the application, operational details, proximity to residential area, parking, security, and environmental assessment. Said that the issues raised by neighbors relative to landscaping were currently being addressed through the building permit for TJ Maxx which is still underway, and is associated with holds on their final occupancy. Staff recommends approval of the Use Permit for the late night hours, parking modifications and bar facility per the draft resolution. Louis Jackson, Vice President Real Estate, Islands Restaurant: Provided a background of Islands Restaurant, a 30-year old company started in west Los Angeles, which is a casual-themed full service restaurant operating primarily in Southern California and some locations in Northern California. Vice Chair Sun: Expressed concern about the request for extended hours from midnight to 1 a.m. because of the issues related to the safety of the community. He noted that the parking lots for BJs and Elephant Bar had extra security. Also stated that he felt the late night hours may potentially attract college students to the late night bar, and he did not feel the security was adequate to overcome the concern. He said he felt the midnight closure for seven days per week was more appropriate. Louis Jackson: Said that the request for extended hours is merely to meet the demand for late night patrons; if there is no demand, they will not stay open later. He said that many of their restaurants are located close to college campuses and they tend to provide a good employee source and tend not to be their customers. He added that in 30 years of operating, they have not lost a liquor license or had a conditional use permit pulled; and the process they go through in most communities has very strict on their operations. Their restaurants cater to families and professionals and the atmosphere is rather quiet after 9 p.m. The applicant answered questions about the parking study conducted by Hexagon Transportation Consultants. Staff clarified information contained in the parking study. Chair Miller opened the public hearing. Lucille Honig, Scofield Dr., Cupertino: Said she resided directly behind the parking lot of the new restaurant and was concerned about the late operating hours. She noted that BJs and Outback are not directly behind the residential area and she felt the Islands Restaurant may become a destination for high tech people in the 180 Cupertino Planning Commission March 13, 2012 late evening, and may create noise in the parking lot. They have resided in the neighborhood for 38 years and have had incidences of patrons going to their cars, playing loud music, games, and car races. The landscaping has not yet been addressed and they have not yet fixed the lighting. Many residents are concerned about the late night noise it will create. Jennifer Griffin, Rancho Rinconada resident: Expressed concern that many family restaurants in the area are closing or being considered for s and IHOP. She suggested that consideration be given to hours of operation of other eating establishments in the area relative to later hours and if there are any issues of concern with those. Chair Miller closed the public hearing. George Schroeder: Relative to the landscape concerns raised by the speakers, he said that shrubs that were approval. Relative to the lighting, glare shields have been installed ds facing the front towards Stevens Creek; the ones on the back have eliminated much of the glare onto the residential and the lighting consultant will check to ensure there is no glare at night, and add additional glare shields if needed. Relative to the noise concerns, a noise study was conducted in the original approval and the sheriff did not have any concerns about noise. Staff does not foresee any additional noise impacts from the setbacks for the restaurant to the residential area. Relative to a sp Department nor Code Enforcement had any concerns about late night use proposed with the application. Com. Brophy: Said he concurred with comment about the difference between a restaurant with a small bar and a bar had no problems with late night issues, and he did not view it as a dramatic change in the nature of what has been proposed. He said there was a demand in Cupertino for places to go for a late night meal. He noted there were enough controls in place through the Sheriff and Code Enforcement that if misrepresentation was made by the applicant, the city would require they be fixed. He said the proposal and hours are not unreasonable, similar to Elephant Bar and BJs, and he supported it. Vice Chair Sun: Reiterated his concerns about the safety and security issues, the glare of the lights and the proposed late night closing time. He recommended that the closing time for Saturday night be reduced by one hour, and said he did not feel the later closing hour would be economically feasible for the business. Com. Brownley: Concurred with and said it was a project that both the Planning Commission and City Council were looking forward to implementing. Relative to the issues about time and noise, the first time through a noise study was done to look at noise issues, the distance from residences, the noise study, and everything suggests that this will not be an issue. The timing of the opening of the bar is consistent with other restaurants and bars in Cupertino. In terms of security, there have been no problems with the other restaurants in Cupertino in the past; as the applicant stated, there are no problems with 181 Cupertino Planning Commission March 13, 2012 Islands itself in the past; which are issues the Sheriff addressed and will address in the future. For the reasons of being consistent with existing restaurants and times, and with previous studies showing that some of the concerns should not be an issue, he said he would also support the project. Com. Lee: The applicant is asking for the separate bar facility, which may have an impact on the parking; but the parking is shared with other large parcels in the center which may be sufficient. She said she would support the project as she felt the extended hours would fulfill the need for residents to dine at later hours. Chair Miller: Asked if a condition could be added that the landscaping be addressed as a condition of approval. In terms of potential for noise, if the restaurant does generate additional noise after it opens, George Schroeder: Said poles have already been in place in terms of the lead permit for TJ Maxx as well as the new building pad to address those issues. Staff works with the owner to ensure that the issues are addressed; there is also a condition tied to the approval that if any future issues arise, especially regarding noise and security, other measures requiring additional enforcement or security patrols may be necessary. It is not necessary to add anything further to the conditions. Chair Miller: Said he supported the project, and commented that perhaps the parking studies could have been done differently and they could have known about the bar in advance. It is clear that the Hexagon study was done appropriately and the study is acceptable as an alternative means of determining the parking demand. He supports the parking study as well as the extended hours of operation under the condition that if it does cause a disturbance, the city will address it at that time. Motion: Motion by Com. Brownley, second by Com. Lee, and carried 4-0-1, Com. Sun voted no, to approve Application U-2012-01 182 183 184 MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, September 6, 2011 PLEDGE OF ALLEGIANCE At 6:46 p.m. Mayor Gilbert Wong called the regular meeting to order in the Council Chamber, 10350 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL Present: Mayor Gilbert Wong, Vice-Mayor Mark Santoro, and Council members Barry Chang, Orrin Mahoney, and Kris Wang. Absent: none. PUBLIC HEARINGS 18. Subject: Cupertino Crossroads Development Proposal Recommended Action: Approve project Description: Applicant: Mark Creedon (Byer Properties); Permit Nos: ASA-2011-12, DP- 2011-03, EXC-2011-10, TR-2011-30; Location: 20750 Stevens Creek Boulevard (Cupertino Crossroads); APN: 359-08-006, 359-08-013, 359-08-020; Environmental Determination: Negative Declaration (EA-2011-10); Descriptions: a. Architectural and Site approval for two new retail building pads and associated site improvements, including, but not limited to, parking lot re-orientation, lighting, landscaping and street frontage improvements consistent with the Heart of the City Specific Plan. b. Development Permit to allow the construction of two new retail building pads; 8,136 square feet and 5,086 square feet respectively and demolition of an existing 4,930 square foot restaurant building, for a net square footage increase of 8,292 square feet. c. Exception to the Heart of the City Specific Plan to allow a 26 foot front setback for a new 5,086 retail building pad, where a 35 foot front setback is required. d. Tree Removal Permit to allow the removal and replacement of seventy nine trees within an existing shopping center parking lot in conjunction with the proposed new development Written communications for this item included staff PowerPoint slides. Assistant Planner George Schroeder reviewed the staff report. Applicant Charles Kahn, Architect, introduced Project Manager Mark Creedon who was there to answer any questions. Mr. Kahn uses at the street to keep the shopping center alive, noting that people like to shop and then have a meal. He also noted that the plan is to include fountains to create an ambience for people to stay and enjoy their 185 September 6, 2011 Cupertino City Council meal. He said they expect there to be cross-fertilization between the businesses which would only require one parking space rather than two. At 9:02 p.m. Mayor Wong opened the public hearing. Darryl Lum, also speaking for Ned Britt and Robert McKibbinn, said that the whole area should be under a master plan. He noted that is in another parcel and Staples is in two parcels showing an example of piece-meal planning. He said that no criteria were met for the project to warrant a Heart of the City (HOC) Exception, and that only 18% of Bldg. F complies with the HOC Master Plan. He compared the street. that number. Jennifer Griffin said that this is an important parcel for Cupertino because of its historical value. She noted that the City has a Heart of the City Master Plan and no exceptions should be granted, making sure there remains a 35-foot setback in that area. Mark Matsumoto from the Cupertino Chamber of Commerce said that the Chamber promotes and enhances businesses in Cupertino and they support this project. He noted that the developer has won awards for being innovative on previous developments. At 9:18 p.m. Mayor Wong closed the public hearing. Mahoney moved and Wang seconded to adopt a Mitigated Negative Declaration. The motion carried unanimously. Santoro moved and Mahoney seconded and Council unanimously approved the following exceptions: Parking to be reviewed a year after completion of the two new building pads Address preserving the large Oak behind Pizza Hut by removing parking spaces near the tree roots, assuming no violation to the lease Front setback for Building F to be 30 feet from the street curb Allow restaurants to comprise 15% of the shopping center (includes square footage of existing restaurants and 100% of Buildings E and F) Wang moved and Mahoney seconded to approve the applications for the project. The motion carried unanimously. Council recessed from 9:57 p.m. to 10:06 p.m. 186 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 10 10UPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: November 15, 2011 Subject Reconsideration of Cupertino Crossroads Development Proposal. Recommended Action approval of the Heart of the City front setback exception associated with one of the two new building pads at the Crossroads Shopping Center located at 20750 Stevens Creek Boulevard. Adopt Resolution No. 11-______, denying the petition of Darrel Lum seeking Council reconsideration of its decision to approve the Heart of the City front setback exception associated with one of the two new building pads at the Crossroads Shopping Center (Attachment A), and thus approve the project. Description Petition to reconsider a City Council decision to approve an Exception to the Heart of the City Specific Plan (EXC-2011-10) to allow a 30-foot front setback for a new 5,086 retail pad building where a 35-foot front setback is required. The Exception was in conjunction with a Mitigated Negative Declaration (EA-2011-10), Development Permit (DP-2011-03), Architectural and Site approval (ASA-2011-12), and Tree Removal Permit (TR-2011-30) for the project. Petitioner: Dr. Darrel Lum Applicant: Mark Creedon (Byer Properties) Location: 20750 Stevens Creek Boulevard (APNs 359-08-020, 359-08-021, 359-08-022, 359-08-006, 359-08-013) Discussion Background The following is a summary of the events that occurred regarding this project leading up to the reconsideration request: Aug. 9, 2011: The Planning Commission recommended approval of the project on a 4-0- 1 vote (see Attachment B for meeting minutes) with the following key stipulations in the resolutions: Limit the percentage of restaurants in the shopping center to 13.5% or 24,062 square feet (assuming 50% of Building E and 100% of 187 Building F are restaurant uses and the other existing restaurant tenants stay constant). Clarified language in the resolution related to the architectural details. to face the street. Sep. 6, 2011: The City Council approved the project on a 5-0 vote (see Attachment C and D) with the following key changes to the conditions of approval: Parking to be reviewed a year after completion of the two new building pads. Address preserving the large Oak behind Pizza Hut by removing parking spaces near the tree roots, assuming no violation to the lease. Front setback for Building F to be 30 feet from the street curb. Allow restaurants to comprise 15% of the shopping center (includes square footage of existing restaurants and 100% of Buildings E and F). Sep. 15, 2011: Petitioner Darrel Lum files petition for reconsideration (Attachment E). Basis for the Reconsideration Section 2.08.096, provides procedures for interested parties to petition the City Council to reconsider its decisions. A petition for reconsideration shall specify in detail each and every ground for reconsideration. Failure of a petition to specify any particular ground or grounds for reconsideration precludes that particular omitted ground or grounds from being raised or litigated in a subsequent judicial proceeding. The grounds for reconsideration are limited to the following: 1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. 2. An offer of relevant evidence which was improperly excluded at any prior city hearing. 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. 4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. 5. Proof of facts which demonstrate that the City Council abused its discretion by: a. Not preceding in a manner required by law; and/or b. Rendering a decision which was not supported by findings of fact; and/or c. Rendering a decision in which the findings of fact were not supported by the evidence. The petition for reconsideration submitted by Dr. Lum (Attachment E) consists of six pages contesting the approval of the Heart of the City Exception (EXC-2011- reduced front setback. Reconsideration of this item constitutes the third full hearing of this matter conducted by the City. As stated in the petition, the petitioner has made claims for reconsideration under the above referenced criteria #2, #3, #5b and #5c. fact and responses on each of these criteria are set forth below. 188 2. An offer of relevant evidence which was improperly excluded at any prior City hearing: Finding: The petitioner has offered no new relevant evidence that was excluded at any prior City meeting, nor has petitioner proven that any evidence was previously excluded by the City Council. Petition Response In regard to Building F and its Parking was a prominent discussion topic at the Planning associated parcel, the petitioner Commission and City Council hearings. Both staff reports alleges that the City Council noted that the project provides less parking than required by and Planning Commission the ordinance allows failed to discuss and answer his for alternative parking considerations through a parking study questions on its parking prepared by a professional traffic/parking engineer since its requirement, the adequacy of parking requirements do not fully capture the dynamic needs of the parcel to provide the a multi-use shopping center. Consequently, the parking study required supply, and the completed by Hexagon Transportation Consultants, Inc. seating capacity for Islands analyzed the comprehensive parking demand of the entire Restaurant. shopping center, not on a parcel-by-parcel basis. The approved parking supply rate for the shopping center exceeded the rate from the Institute of Transportation Engineers (ITE) for similarly-sized shopping centers and also from field parking surveys of local shopping centers with similar tenant mixes. Both rates were based on the highest surveyed rate and adjusted to account for the specific percentage of restaurants in the shopping center (15%). These rates are based on the square footage of the entire shopping center, not on parking requirements for individual uses. It is acknowledged that some parcels in the shopping center are not self-sufficient in terms of parking, as is common in other multi-parcel shopping centers. Sufficient parking supply is provided by reciprocal access parking easements throughout every parcel. Moreover, the parking layout in the shopping center allows for sharing of parking between uses, such as patronizing a restaurant and retail store while parked in the same parking space. To remove any doubt as to the accuracy of the study, the property owner will be required to fund a parking demand survey a year after completion of the two new building pads for the City Council review. The petitioner alleges that The approval in question was for the core and shell of the Islands Restaurants have building pads and the floor plan provided by the applicant did separate bars and therefore not indicate a separate bar, as it was yet to be finalized by the require parking based on 1 future Islands tenant. If Islands requests a separate bar within space for every 3 seats plus 1 the restaurant, then they would be required to apply for a space for each employee. Conditional Use Permit, which would be reviewed by the Planning Commission at a future public hearing. Regarding the parking ratio, the City typically requires 1 space/3 seats for bar 189 seats only; not the entire restaurant. Restaurant seats require a parking ratio of 1 space/4 seats. As stated previously, the plans did not indicate a separate bar; therefore a bar seat parking calculation was not identified in the parking study. Furthermore, it should be noted that since the parking survey was based on restaurants of all types and the Council approved an alternative parking calculation based on shopping center square footage, the bar area would not be subject to a parking requirement based on each individual use. However, the Planning Commission has the discretion to require additional stalls through such means as restriping in other areas of the shopping center (assuming no violation to leases). 3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction: Finding: The petitioner has not provided any proof of facts that demonstrate the Council proceeded without, or in excess of its jurisdiction. Petition Response The petitioner alleges that the The Heart of the Specific City Plan allows the Planning City Council proceeded Commission and City Council to approve exceptions to its without, or in excess of its development standards. The City followed the prescribed jurisdiction in its approval of procedures for an exception, including notifying the public the Heart of the City within 300 feet of the site and vetting the exception request Exception. through two public hearings. Therefore, the City did not act without, or in excess of its jurisdiction. 5. Proof of facts which demonstrate that the City Council abused its discretion by: b) Rendering a decision which was not supported by findings of fact; and/or c) Rendering a decision in which the findings of fact were not supported by the evidence. Finding: The petitioner has not provided any proof of facts that demonstrate the Council abused its discretion by rendering a decision which was not supported by findings of fact, or rendering a decision in which the findings of fact were not supported by the evidence. Petition Response The petitioner alleges that the The project was approved in accordance with the required findings needed for a Heart of the City Specific Plan Exception: City Council did not make the necessary findings required for 1.The proposed development is otherwise consistent with the an exception to the Heart of the this specific plan City Specific Plan. and meets one or more of the criteria described above. General Plan and the specific plan. The project will help instill a sense of place with appealing architecture and pedestrian-oriented streetscape 190 features. The location of the building was proposed after all efforts were exhausted to meet the prescriptive development standards in the specific plan and to maximize parking for the development. 2.The proposed development will not be injurious to property or improvements in the area nor be detrimental to the public health and safety. The development will not be injurious to property or improvements in the area nor be detrimental to the public health and safety. 3.The proposed development will not create a hazardous condition for pedestrian vehicular traffic. The development will not create hazardous conditions for pedestrian and vehicular traffic. 4.The proposed development has legal access to public streets and public services are available to serve the development. The development has legal access to public streets and public services are available. 5. The proposed development requires an exception, which involves the least modification of, or deviation from, the development regulations prescribed in this chapter necessary to accomplish a reasonable use of the parcel. The strict application of the front setback requirement does not allow for the most efficient parking layout and maximized parking supply. In addition, the buildable area of the lot is constrained by a grade difference and the location of a large oak tree. The intent of the specific plan is addressed with the building positioned to promote an active streetscape. Furthermore, the City Council required the building to be setback an additional four feet to 30 feet. The petitioner asserts that an This is not a ground for reconsideration. Also, the City Council exception should not be based the approval of the exception on the merits of the approved based on an application. exception for other projects. The petitioner alleges that the The project provides an unobstructed 26 foot wide landscape 26 foot wide landscape easement, similar to other recently approved developments easement is not consistent with the Heart of the City Specific Foods. The frontage will help create a pedestrian-friendly Plan. environment along Stevens Creek Boulevard. frontage is limited from providing the prescribed landscape easement dimensions due to the presence of mature trees and a VTA bus duckout. The proposed landscape treatment was discussed and approved by the Council at the September 6, 191 2011 hearing. The petitioner alleges that no The City does not require alternative plans to be submitted for alternative plans have been exception applications. However, various setback alternatives submitted to the Planning were discussed at the Council hearing and the Council finally Commission or City Council. adopted a revised setback of 30 feet for Building F. The petitioner alleges that there At the September 6, 2011 City Council hearing, the petitioner are no physical constraints on alleged that there were no physical constraints on the Building the Building F parcel to F parcel that would prevent it from being set back 35 feet. At prevent it from being setback the hearing, the petitioner did not provide these specific 35 feet from the curb as suggestions to meet the setback requirement. The City Council required by the Heart of the can only act on the facts and evidence on hand when its City Specific Plan. The decision is rendered. The Council considered petitioner suggests relocating a testimony as provided but chose to approve the project with a retaining wall and adjusting the setback of 30 feet for Building F. lot line to gain an additional four foot setback. Please see Attachment F and exhibits to the petition for reconsideration. ____________________________________ Prepared by: George Schroeder, Assistant Planner Reviewed by: Gary Chao, City Planner; Aarti Shrivastava, Community Development Director. Approved for Submission by: David W. Knapp, City Manager Attachments: A. City Council Resolution No. 11-______ and Exhibit A B. Planning Commission meeting minutes from August 9, 2011 C. City Council Action Letter dated September 8, 2011 D. City Council meeting minutes from September 6, 2011 E. Petition for Reconsideration from Darrel Lum dated September 15, 2011 F. 31, 2011 192 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 15, 2012 Subject 1)Considera Petition for Reconsiderationfor the approved Bollinger Road Project. 2)Conduct the reconsideration hearing for the approved Bollinger RoadProject. Recommended Action 1)Consider thepetition for reconsideration and adopt the draft resolution (Attachment A), approving the Petition, specifically Reason#2, of Arthur Dong seeking Council reconsideration of its approval of the Bollinger Road Project(See Attachment B). 2)Conduct the reconsideration hearing for the Bollinger RoadProject. Staff recommends that the City Council uphold its original approvalwhich included: granting a negative declaration for the project; approving the project in accordance with the Planning Commission resolutions, and the added requirement to prepare a comprehensive construction management plan, and directionto staff to design the residence on Lot #5so the garage and driveway do not face the existing residences. Description 1)Consider,pursuant to CMC 2.08.096, a Petition for Reconsideration of the City Council’s decision to approvea tentative map that allowed the subdivision of 1.14 acre parcel into five lots ranging in size from 7,040 square feet to 11,096 square feet; and a variance to allow reduced lot widths for four of the five new lots surrounding the proposed cul-de-sac that do not meet the minimum lot width requirements. 2)Conduct the reconsideration hearing of the City Council’s decision to approve a tentative map that allowed the subdivision of 1.14 acre parcel into five lots ranging in size from 7,040 square feet to 11,096 square feet; and a variance to allow reduced lot widths for four of the five new lots surrounding the proposed cul-de-sac that do not meet the minimum lot width requirements. Application Nos.:TM-2012-01, V-2012-01 (EA-2012-01) Location:Western Terminus of Bollinger Road, APN 359-22-077 Applicant: McClellan Development Petitioner:Arthur Dong Property Owner:Lands of Jauch 194 Discussion Background The following is a summary of the project events leading up to the reconsideration request: March 27, 2012Planning Commission recommended approval of the project (AttachmentsC, D& E) April 9, 2012Public hearing notices mailed to property owners within 300 feet. April 17, 2012City Council approved the project (Attachments F,G& H) April 27, 2012Arthur Dongfilespetition for reconsideration (Attachment B). Basis for the Reconsideration The City’s Municipal Code, section 2.08.096, provides procedures for interested parties to petition the City Council to reconsider its decisions. A petition for reconsideration shall specify in detail each and every ground for reconsideration. Failure of a petition to specify any particular ground or grounds for reconsideration precludes that particular omitted ground or grounds from being raised or litigated in a subsequent judicial proceeding. The grounds for reconsideration are limited to the following: 1)An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing. 2)An offer of relevant evidence which was improperlyexcluded at any prior city hearing. 3)Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. 4)Proof of facts which demonstrate that the City Council failed to provide a fair hearing. 5)Proof of facts which demonstrate that the City Council abused its discretion by: a)Not preceding in a manner required by law; and/or b)Rendering a decision which was not supported by findings of fact; and/or c)Rendering a decision in which the findings of fact were not supported by the evidence. Reconsideration Petition Thesubmittedpetition for reconsideration consists of onepage. Reconsideration of this project approval will constitute the thirdfull hearing of this matter conducted by the City.Previous hearing dateswere: March 27, 2012 Planning Commission hearing and the April 17, 2012 City Council hearing.The grounds (reasons)for the reconsiderationas submitted by the petitionerare summarized below.The City’s findings of fact on each ofclaims and thecriterionare delineatedbeloweach of the petitioner’s reasons. On April 30, 2012, staff verbally discussed the petition with the petitioner to obtain clarification on the points in the petition. The clarifications are noted in the reasons provided below. Petition Reason #1 PetitionResponse When the City of San Jose approved the final Resolution no. 47632 approved and authorized subdivision map for the property to the east of execution of a contract and approved bonds for the project site (Attachment I) via its resolution improvement of Tract No. 5782 (Attachment I, no. 47632(Attachment J), a larger number of J). A copy of the improvement contract is also neighbors were involved. If the City of attached and appears tobea standard city Cupertino changes this San Jose resolution, it contract for the improvement of a subdivision needs to seek the approval of the same number (Attachment K). According to San Jose City of neighbors as before.Council minutes(Attachment L), Resolution no. 47632 wasunanimouslyadopted by the 195 San Jose City Council on its consent calendar at a public hearing on May 25, 1976. The San Jose City Council voted on this San Jose subdivision, the public did not vote on it.Tract no. 5782 along with other lands were de- annexed from San Jose to Cupertino effective July 1, 1979. The petitioner fails to make the findings of Reconsideration finding #3: Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. The project property and the adjacent land, Tract No. 5782, are entirely within the incorporated boundariesof the City of Cupertino and as such, Cupertino has exclusive domain over matters of land use & development regulation within the framework of applicable state and federal regulation. The petitioner hasofferednoevidence of any overriding San Jose regulation andthe validity thereof. Finding for Reason #1:The petitioner has not offered any evidence that the City Council proceeded without or in excess of its jurisdiction --CupertinoMunicipal Code section 2.08.096(B)(3). Petition Reason #2 PetitionResponse A City Council hearing on the project was The petitioners have presented evidencethat scheduled for April 17, 2012, andthe hearing Cupertino public hearing noticing regulations notices to the surrounding property owners for subdivisionswere notfollowed.Municipal were datedApril 9, 2012Code Section 18.16.040(A)(C)(E) requires10- day mailed notice to property owners within 300 feet of the project site and alsointerested parties. The City gave 9-daysmailed notice instead of a 10 day notice(Attachment M). Finding for Reason #2:With respect to Reason #2, the petitioner has offered new evidence that demonstrates that the City Council did not precedein a manner required by law.-Cupertino Municipal Code, section 2.08.096(B)(5)(a). Petition Reason #3 PetitionResponse The design for the front (of the lots) does not The City Building Code addresses constructed meet Cupertino Building Code. The petitioner features on real property. It does not address is referring to the narrower lot widths which do subdivision design or variances from zoning 196 not meet the minimum lot width of 60 feet as requirements for lot widths.The narrower stated in the R1 zoning ordinance.proposed lots widthswere andare being addressed appropriately through the variance reviewprocessallowed in the Zoning Ordinance CMC Section 19.156 Finding for Reason #3: With respect to Reason #3, the petitioner has offered no new evidence to demonstrate that the City Council didnot precedein a manner required by law-Cupertino Municipal Code, section 2.08.096(B)(5)(a). Petition Reason #4 PetitionResponse The City did not show at any time if there was At the April 17, 2012 City Council meeting, any limitation to the extension of Bollinger staff demonstrated that there was no other legal Roador if there are alternatives to the present access to the project property, other than subdivision approval. This needs to be done.Bollinger Road.Staff also stated at the hearing that after reviewing the title report for the project property, the final parcel map that created the project lot, and the San Jose and Cupertino-approved final subdivision maps for the abutting properties to the east, itcould not find any recorded restrictions barring access to the project property from Bollinger Road. Also at the hearing, neighbors opposed to the project were invited to submit proof that the project property had no legal access to Bollinger Road. Theyfailed to do so at the council hearingand at all times up and including the reconsideration petition filing. The petitioner offers no new or relevant evidence to support his contention and requests that the City continue to look for evidence he could not find on his own. Finding for Reason #4: The petitioner’s reason #4 does not meet any of the reconsideration criteria stated in Cupertino Municipal Code, section 2.08.096(B) as he submits no new evidence or facts related to the Reconsideration criteria. 1)Recommendation for the Reconsideration of the Petition Based on the above findings,the petitioner hasprovidedrelevant grounds/evidence for the reconsideration under Reason #2,in thatthe notice was mailed on April 9, 2012, instead of April 8, 2012 or earlier to provide a minimum of 10 dayspublic hearing notice to residents within a radius of 300 feet from the project.It should be noted thatfor this Reconsideration item,property ownerswithin 300 feet from the projectand other interested parties were noticed of the hearingat least 10 days in advanceand a notice was published in a newspaper of general circulationin the area. Therefore, staff recommends that the 197 City Council allow the reconsideration request and conduct the Reconsideration hearing on the subdivision and variance project in question. Reconsideration Hearing The staff report, meeting minutes, resolutions, and action letterfrom the Planning Commission hearing and the prior Council hearingare attached for reference(Attachments C, D,E, F, G & H).Supporting documents are also included (Attachments U –AA). At the prior Council hearing, the petitioner contends that the proposed project is an attempt to illegally open up Bollinger Road and is violating the policies/agreements associated with this area when it was under the City of San Jose's jurisdiction. For the record,excerpts from the San Jose’s General Plan 1975- 1990 Land Use/Transportation Diagram,dated December 1975(Attachment N),clearly demonstratethat San Jose’s long-term general plan goal was toextend Bollinger Road as an arterial street (80-106 foot right-of-way) westerly to Stelling Road when much of the surrounding area was under San Jose’s jurisdiction. Typically, the extension ofa roadway such asBollinger Road would occur on an incremental basis as individual property owners subdivided and developed their properties, adding segments to the roadway system,according to the governing jurisdiction’s development regulations that must be in conformance with the jurisdiction’s general plan. Further, San Jose subdivision tractmapno. 5782 (See Attachment I) referenced by the petitionerand approved by the San Jose City Council on May 25, 1976also demonstrates conformance with San Jose’s general plan map to continue the extension of Bollinger Road as an arterial street and not obstruct the map’s goal of eventually connecting to Stelling Road. This San Jose subdivision involved the creation of seven new lots that front the north side of Bollinger Road between the Jauch property and Kim Street.There are no obstructions to the future extension of Bollinger Road and the required half-street land dedication for this subdivision was 45 feet, which is half the width of 90-foot wideBollinger Road. Bollinger Road, however,never connected to Stelling Road because of the de-annexation of the surrounding area from San Jose to Cupertino in 1979 and the disinterest of the Jauch Family in subdividing its property until today. Public Input After the submittal deadline for the reconsideration petition, we received five additional documents from the petitioner(Attachments O-S). They are: Attachment O:A March 1, 1976 informational memorandum from staff to San Jose City Council, reporting on the outcomes of a neighborhood meeting where the majority of the attendees supported a cul- de-sac on Bollinger Road instead of a connection to Stelling Road.There are no Council actions or resolutions associated with this item. Attachment P: An incomplete copy of a San Jose City Council resolution approving the final map of Tract no. 5782. Attachment Q: San Jose City Council resolution no. 47630fixing official curb grades and positions of curbs and adopting plans for Tract no. 5782 Attachment R: An incomplete copy of what appears to be another San Jose resolution related to the approval of Tract no. 5782. Attachment S: A February 18, 1958 staff memorandum to City Council reporting out a Planning Commission recommendation to abandon a portion of old Bollinger Roadin Tract No. 1693, Unit No. 1. 198 Staff notes that the location of the street abandonment is in San Jose near Bollinger Road and Blaney Avenueabout one mile from the project site (Attachment T). 2)Recommendationfor the Reconsideration Hearing of the Project Based on all the relevant subdivision records researched, San Jose City Council resolutions and the San Jose 1975-1990 General Plan Land Use/Transportation Diagram, there is no evidence that any agreements were made that would prevent the proposed project subdivision and to improve the terminus of Bollinger Road with a cul-de-sac. Given the above reasons and others outlined in the staff reports, staff recommends that the Council uphold its original decision of approving the subdivision and variance applications forthe subject project. ____________________________________ Prepared by:Colin Jung, AICP, Senior Planner Reviewed by: Gary Chao, City Planner; Aarti Shrivastava, Community Development Director, Carol Korade, City Attorney Approved for Submission by:Amy Chan,InterimCity Manager Attachments: A.Draft City Council Resolution B.Petition for Reconsideration filed April 27, 2012 C.Planning Commission Staff Report dated March 27, 2012 D.Planning Commission Meeting Minutes dated March 27, 2012 E.PlanningCommission Resolution Nos. 6682, 6683 F.City Council Staff Report dated April 17, 2012 G.City Council Draft Meeting Minutes dated April 17, 2012 H.City Council Action Letter dated April 23, 2012 I.San Jose Tract Map No. 5782 J.San Jose City Council Resolution No. 47632 K.Approved San Jose Contract for the Improvement of Tract No.5782 L.Excerpt of San Jose City Council Minutes from May 25, 1976 Hearing M.City Clerk’s Affidavit of Mailing N.Excerpts of San Jose’s General Plan 1975-1990 Land Use/Transportation Diagram dated December 1975. O-S Documents received from petitioner after reconsideration petition submittal deadline. T. San Jose Tract no. 1693, unit no. 1 U. Aerial Survey of Cul-de-sac lots with less than 60-foot lot widths. V.Phase I Environmental Site Assessment for Property Located at West Terminus of Bollinger Road in Cupertino, California prepared by Friar Associates, Inc. and undated. W.Limited Environmental Assessment (Phase II) Proposed Residential Development/Bollinger Road/Cupertino, California prepared by Friar Associates, Inc. Soil Testing completed by TestAmerica, dated 2/3/12. X. Arborist Report, prepared by Michael L. Bench, Consulting Arborist, dated 1-10-12. Y. Negative Declaration, ERC Recommendation and Initial Study Z. Written Neighborhood Comments AA. Plan Set G:Planning/PDREPORT/City Council/Appeals/TM-2012-01, V-2012-01Reconsideration.doc 199 Attachment: A RESOLUTION NO. 12-___ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE PETITION OF ARTHUR DONGSEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO APPROVETM-2012-01 & V-2012-01, A TENTATIVE MAP AND VARIANCETO FACILITATE SUBDIVISION OF A 1.14 ACRE PARCEL INTO FIVE LOTS WITH FOUR OF THE FIVE LOTS WITH LOT WIDTHS LESS THAN THE R1 ZONING STANDARD OF 60 FEET AT THE WESTERN TERMINUS OF BOLLINGER ROAD WHEREAS, on April 17, 2012, the Cupertino City Council received a staff report and recommendation to approve a Tentative Map and Variance Request to facilitate the subdivision of a 1.14 acre parcel into five lots ranging in size from 7,040 to 11,096 square feet and a variance request for reduced lot widths for four of the five new lots surrounding the proposed cul-de-sac that do not meet the minimum lot width requirements at the western terminus of Bollinger Road, APN 359-22-077; WHEREAS, Arthur Dong requested that the City Council reconsider its decision under the provisions of Section 2.08.096 of the City's municipal code; and WHEREAS, the Cupertino City Council held a properly noticed public hearing and at the conclusion of the hearing, a majority of the Councilgrantedthe reconsideration petition,filed by Arthur Dong,at its meeting of May 15, 2012; . WHEREAS, the Cupertino City Council's decision was based on specifically Petition Reason #2 that claimed the City provided inadequate hearing noticing time as the mailing was dated April 9, 2012 and a 10 day mailed noticeisrequired by the Cupertino Municipal Code to surrounding property owners within 300 feet radius of the project and interested parties. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: 1.The petitioner’sReconsideration Petition is validon its face in that it does offer proof of facts as required by Municipal Code Section 2.08.096. 2.The petitioner’s Petition for Reconsideration of the City Council's decision of April 17, 2012onagenda item _9_ is GRANTED,and the Reconsideration Hearing shall be conducted subsequent to this action on May 15, 2012.The Reconsideration Hearing was also properly noticed. PASSED AND ADOPTED at a regular meeting of the City Council of the City of th Cupertino this 15day of May 2012, by the following vote: Vote Members of the City Council 200 AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ___________________________________________ City Clerk Mayor, City of Cupertino 201 202 OFFICE OF COMMUNITY DEVELOPMENT CITY HALL CUPERTINO, CA 95014-3255 (408) 777-- planning@cupertino.org PLANNING COMMISSION STAFF REPORT March 27, 2012 Agenda Item No. Agenda Date: TM-2012-01, V-2012-01, (EA-2012-01) Application: Mike McClellan of McClellan Development (for Jauch Family Trust) Applicant: Application Summary: Tentative Map to subdivide an approximately1.14 acre lot into five parcels ranging in size from 7,040 to 11,096 square feet. Variance request for reduced lot widths for four of the five new-de- sac that do not meet the minimum lot width requirement. RECOMMENDATION: Staff recommends that the Commission recommendto City Councilapproval of the following applications: Negative Declaration for the project (EA-2012-01); Variance(V-2012-01)per the draft resolution (Attachment 1); and Tentative Map (TM-2012-01)per the draft resolution (Attachment 1). Please note that the final decision on the project will be made by the City Council at tentatively scheduled for April 17, 2012. PROJECT DATA Low Density (1-5 Dwelling Units/Gross Acre) General Plan Designation: R1-6 (Single Family Residential 6,000square feet minimum) Zoning Designation: 49,650square feet (1.14 acre) Total Gross Lot Area: 43,631square feet (1.00acre) Total Net Lot Area: Proposed Lot Areas: 7,040 square feet Lot 1: 8,875 square feet Lot 2: 9,005 square feet Lot 3: 7,615 square feet Lot 4: 11,096 square feet Lot 5: EVacant land xisting Land Use: Single-family residential Proposed Land Use: 4.39dwelling per grossacre Proposed Density: Yes Project Consistency with General Plan: Yes Zoning: 203 TM-2012-01, V-2012-01(EA-2012-01) Bollinger Road SubdivisionMarch 27, 2012 BACKGROUND Site Description The subject property is an infill lot at the western terminus of single-family properties that have identical zoning (R1-6)and general plan land use designations (Low Density Residential (1-5 dwellings/gross acre). The developed parcels to the north and(6,120 to 7,276 square feet)tend to be smaller than the proposed lots, while the developed p ofasimilar size(7,772 to 9,583 square feet)compared to the proposed lots. To the south is the remainder of the Jauch property developed with a single residence and-lot parcel map in 2006. 10710 695 10720 BOLLINGER RD 25 5 Project Property N DISCUSSION: Zoning and General Plan Conformance The subject site is located in a R1-6 zoning district with minimum lot size of 6,000 square feet. T applicant is proposing net lot sizes that range from 7,040 to 11 Use designation is Low Density Residential (1-5dwellings per gross acre) and the applicant is proposing a density of 4.39. The project is consistent with the R1 Ordinance (with the exception of lot 204 TM-2012-01, V-2012-01(EA-2012-01) Bollinger Road SubdivisionMarch 27, 2012 widthdiscussed later in the staff report)and General Plan. Development Proposal The applicant hasproposed a five lot subdivision for single-family residential development. All of the lots are accessed off a cul-de-sac bulb that meets Santa Clara County Fire Department requireme access. All on-site and off-site right-of-way improvements have been designed to connect and be consistent with existing Bollinger Road improvements.The applicant has request a lot width variance for four of the five lots that do not meet the minimum R1 lot wi A preliminary site diagram (see last sheet of the plan set) has been prepared to demonstrat residential development can meet the R1 zoning standards, parking requirements and provide reasonablelandscapedfront and rear yard areas.The preliminary site diagram,used in conjunction with the title sheet,also demonstratescompatible yard to yard relationships: rear to rear and side to help make the development compatible with the existing neighborh Please note that residential construction is not part of this development proposal. Any subsequent, new 2-story dwelling requires neighbor noticing and a 2-story planning permit approved by the Director of Community Development. Lot Width Variance Request The variance being proposed reduces the lot widths on four of the five lots below the 60 feet minimum required in the R1 zoning district. Lot widths are measured alo Proposed lot widths needing variances are outlined as follows: Lot #1:55 feet Lot #2: 45 feet Lot #3:40 feet Lot #4:54 feet It should be noted even with the reduced lot width request, all than typical lots in the R1-6 zoning district. Narrower lot widths are typical of interior cul-de-sac lots as shown on the survey (Attachment 2). The proposed lot widths are consistent and compatible with existing -de-sac lots in the neighborhood. For example, many properties on Vernie Court and Orline Court have lot widths less than 60 feet. Staff supports the project and recommends that the following fin variances (staff notes in : italics) 1)There are exceptional or extraordinary circumstances or conditioapplicable to the property involved that do not apply generally to property in the same dis The most logical subdivision design is a cul-de-sac style which is consistent with the general plan residential land use density and the observed lot widths of other interior cul-de-sac lots. 2)The granting of the application is necessary, for the preservati property right of the applicant, and to prevent unreasonable pro hardship; The project as proposedis consistent with the general plan land use residential density minimum requirements by a significant margin. The proposed redu other interior cul-de-sac lots in the area. 205 TM-2012-01, V-2012-01(EA-2012-01) Bollinger Road SubdivisionMarch 27, 2012 The granting of the application will not be detrimental or injurious to property or imp 3) in the vicinity and will not be detrimental to the public health convenience, and to secure the purpose of the title. Property is proposed to be developed in accordance with the Citys requirements for R1-zoned single-family homes. Lots are large enough to allow flexibility in design and without further need for development exceptions or variances. HazardousMaterials The applicant has commissioned the preparation of a Phase I and assessments (Attachments #3& #4). A site visit and search of regulatory agencies records did hazardous material spill; however, historical aerial photographs demonstrate agricultural activities on the property from the late 1930s through the 1970s. Such acti from petroleum products and pesticides from past agricultural prThe Phase II assessment involved collection of soil samples from suspected areas of huma chemicals in a state certified laboratory. The laboratory resul chemicals in the collected samples. Trees Anarborist report was prepared by one of the City Arborists for th5. The City Arborist surveyed65 trees on the property, most of which were fruit trees and sma considered 26 of the 65 trees to be significant in size (8+ inches in diameter). The arborist added to this inventory an additional 24 trees on adjacent properties because development on the project property could negatively affect thes None of the project property trees are protected by the City Prote permit is not required).And of these non-protected trees, the City Arborist considers none of them so unique or exceptional that they could not be removedand replaced. The subdivision street and storm drainage improvements will directly cause the removal of only fi remaining unprotected trees are within the building envelopes an subsequent housingconstruction. It is anticipated that future street tree and pri help compensate for this tree loss. The City arborist has made written recommendations for construct techniques to protect the significant trees on the neighboring properties. The recommenda incorporated in the tentative map resolution. Environmental Review Committee (ERC) Environmental issues described above were presented to the ERC aThe ERC voted unanimously to recommend a Negative Declaration for thmakers (Attachment 6). Prepared by: Colin Jung, AICP, Senior Planner Reviewed by:Approved by: /s/Gary Chao /s/Aarti Shrivastava Gary ChaoAarti Shrivastava City PlannerCommunity Development Director 206 TM-2012-01, V-2012-01(EA-2012-01) Bollinger Road SubdivisionMarch 27, 2012 ATTACHMENTS: Attachment 1: Resolutions for TM-2012-01, V-2012-01 Attachment 2: Aerial Survey of Cul-de-sac lots with less than 60-foot lot widths. Attachment 3:Phase I Environmental Site Assessment for Property Located at West Bollinger Road in Cupertino, California prepared by Friar Associ Attachment 4:Limited Environmental Assessment (Phase II) Proposed Residential Development/Bollinger Road/Cupertino, California prepared by Fri Soil Testing completed by TestAmerica, dated 2/3/12. Attachment 5: An Evaluation of the Existing Trees at Bollinger Road, Cupert Bench, Consulting Arborist, dated 1-10-12. Attachment 6: Initial Study and ERC Recommendation Attachment 7: Plan Set G:planning/pdreport/TMreports/2012/TM-2012-01, V-2012-01.docx 207 208 209 210 211 212 213 214 215 216 217 218 219 220 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: April17, 2012 Subject Bollinger Road Subdivision and Variance Request for lot widths Recommended Action The Planning Commissionrecommended on a 4-0-1vote(Millerabstained-SeeAttachment A) that the City Council approvethe following applications: Negative Declaration (EA-2012-01); Variance (V-2012-01) per Commission resolution no.6683; and Tentative Map (TM-2012-01) per Commission resolution no. 6682. Description Applications:V-2012-01,TM-2012-01(EA-2012-01) Applicant:Mike McClellan of McClellan Development Property Owner:Jauch Family Trust Location:Western terminus of Bollinger Road, APN 359-22-077 Application Summary: Tentative Map to subdivide an approximately 1.14 acre lot into five parcels, ranging in size from 7,040 to 11,096 square feet. Variance request for reduced lot widths for four of the five new lots surrounding the proposed cul-de-sac that do not meet the minimum lot width requirement. Project Data Summary: General Plan Designation: Low Density (1-5 Dwelling Units/Gross Acre) Zoning Designation: R1-6 (Single Family Residential –6,000square feet minimum) Total Gross Lot Area: 49,650 square feet (1.14 acre) Total Net Lot Area: 43,631 square feet (1.00 acre) Proposed Lot Areas: Lot 1: 7,040 square feet Lot 2: 8,875 square feet 221 Lot 3: 9,005 square feet Lot 4: 7,615 square feet Lot 5: 11,096 square feet xisting Land Use: EVacant land Proposed Land Use: Single-family residential Proposed Density: 4.39 dwelling per gross acre Project Consistency with General Plan: Yes Zoning: Yes (if lot width variance is granted) Discussion Planning Commission Meeting On March 27, 2012, the Planning Commission reviewed the 5-lot subdivision and variance proposal for this parcel located at the western terminus of Bollinger Road. The request involved the subdivision of a 1.14 acre parcel into five lots ranging in size from 7,040 to 11,096 square feet in size with a variance request to allow reduced lot widths for four of the five lots in the cul- de-sac that do not meet the minimum R1 lot width requirement of 60 feet. The detailed background information is in the Planning Commission staff report (See Attachment B)and other attachments (Attachments C –I). Staff would like to note that this project does not include permits for the single-family homes on each lot. At the Planning Commission hearing, six residents commentedonthe 5-lot subdivision and variance proposal for this parcel.Theresidentconcerns included: 1.The appropriateness of havingdevelopment vehicular access to Bollinger Road instead of JollymanLane; 2.The appropriateness of granting a variance for lot widths when a subdivision of four lots instead of five lots will meet all of the City’s R1 zoning regulations; 3.The on-site trees that will be removed and the off-site trees that may be affected by the proposed development; 4.The orientation of the conceptual garage and driveway on proposed Lot #5 which would impact two existing residences on the east side; 5.How will construction impact nearby properties; and 6.The project should only be one-story residences to protect the privacy of the existing neighbors. Planning CommissionComments The Planning Commission discussed the above concerns and added two more: 7.Anypublic outreach done by the applicant. 8.Any construction phasing contemplated by the applicant. 222 Each concern is described below, followed by staff’s response in italics. 1.The development should open onto Jollyman Lane instead of Bollinger Road. A Jollyman Lane access would be more convenient for school children of potential residents, while a Bollinger Road access would only worsen traffic and on-street parking for Bollinger Road neighbors. Staff response: The project property does not have any physical access to Jollyman Lane. The abutting parcel is under a different, but related, ownership; developed with a single- family residence and is not proposed for redevelopment. The subdivision street design provides a standard configuration, typical for most City cul-de-sacs and consistent with City public street standards and Santa Clara County Fire Department fire truck turnaround requirements. 2.A 4-lot subdivision proposal would not need alot widthvariance and the developer should follow theexistingruleswithout asking for variances. Staff response: The proposed 5-lot subdivision meets all City requirements except for the narrower width of the lots (40’, 45’, 54’ and 55’ measured at the front setback line). Thelots range in size from about 7,000 to 11,000 square feet; considerably larger than the minimum requirement of6,000 square feet and generally larger thanthesurrounding neighborhood lots. The width variance is typical of interior cul-de-sac lots in theneighborhood(See Attachment C). In the recent past, the City has approved a similar lot width variance request for a cul-de sac subdivision, thatis,the North Portal Avenue terminus2-lot subdivision. 3.A couple of residents had concernsabout the on-site trees that will be removed and the off- site trees that may be affected by the proposed development. Staff response: All of the trees on the property areeither fruit trees orothernon-protected treespecies. The applicant will be required to plant street trees andprivacy protection landscapingfor any newtwo-story home on each lot. The City Arborist has reviewed the project and prescribed conditions and standards to help minimize any project impacts to the off-site trees near the construction vicinity. The applicant will be required to submit a tree management/protection plan for City review and approval prior to commencement of constructionof the subdivision and residences. 4.The side yard garage/driveway orientation of the conceptual residence on Lot #5 (See last page of Plan Set) could impact the living spaces of the existing residences to the eastwith car exhaust, noise and lights. Staff Response: This project does not includeplanningpermits for the single-family homes on eachproposedlot. The building footprints presented are conceptual.TheCity Council coulddirect staff to require front yard garage/driveway access to the cul-de-sac for Lot #5 at the time a residence is proposed.(SeeStaffRecommendation section below). 5.The development will have construction impacts on the neighborhood. 223 Staff response: The Planning Commission tentative map resolution already has incorporated conditions that address: off-site tree protection, recycling of demolition debris, dust control and erosion control. The City noise control ordinance is also applicable and has particular standards for construction activities. The site is large enough to accommodate the necessary construction equipment and supplies for the project. In order to alleviate neighborhood concerns, staff is recommending that the City Council add,as a condition of approval,,the requirement for a detailed construction management plan to be approved by the City prior to issuance of any grading and building permits to addressother construction issues, such as, construction phasing, equipment staging,designated complaint hotline, and locations of portable restrooms, construction trailerand worker parking(SeeStaffRecommendation Sectionbelow). 6.The project should only be one-story residences to protect the privacy of the existing neighbors. Staff response: The project lot and its immediate neighborhood are zoned single family residential with the same potential for development intensity and the potential to build two story homes. Any future two story homes proposed on these new lots will be required to adhere to the City's privacy screening requirements. 7.Public outreach efforts by the applicant. Staff response:The applicant did reach out to the adjacent property owners and has met with several of the neighbors prior to the Planning Commission hearing. The applicant will go over their outreach efforts and conversations with the neighbors at the Council hearing. 8.Construction phasing proposed by the applicant. Staff response: The applicant has stated that he is not far enough along in his processto think about construction phasing. In order to address this concern, staff is recommending that the City Council add,as a condition of approval,the requirement for a detailed construction management plan to be approved by the City prior to issuance of any grading andbuilding permits.(See Staff Recommendation Section below). The Commission supports the proposed subdivision and the variance request for the reduced lot width due to the following reasons: The proposed lot sizes are larger than the average lot size of the neighborhood; There are numerous other interior cul-de-sac lots in the neighborhood and elsewhere in the City with similar reduced lot widths off cul-de-sacs; The narrower lot widths measured at the front setback line result from the geometry of the cul-de-sac and do not prevent the future homes from meeting the minimum building setbacks as prescribed in the R1 Ordinance; and The project will facilitate the necessary improvements to the current unfinished terminus of Bollinger Road. 224 The Planning Commission meeting minutes werenot available at the timeof the preparation of this staff report and will be provided at the Council hearing if available. Additional Staff Recommendations If the City Council approves this project per the Planning Commission recommendations, staff recommends that the following condition be added to the tentative subdivision map conditions of approval: CONSTRUCTION MANAGEMENT PLAN The applicant shall prepare a detailed construction management plan to be approved by the City prior to issuance of anygrading or demolition permitfor the subdivision construction. The plan shall address:equipment stagingarea,designate acomplaint hotlineand signage,fencing,and locations of portable restrooms, construction trailer,and worker parking. The plan shall also memorialize the City’s noise standards and other construction activity regulating conditions specified in the tentative map resolution. The applicant shall also prepare a construction management plan for City review and approval prior to the issuance of any building permits for new residences on the subject property. That plan shall also address construction phasing. Other Council Direction Staff also recommends that City Council direct staff to require front yard garage/driveway access to the cul-de-sac for Lot #5 at the time a residence is proposed. _____________________________________ Prepared by: Colin Jung, AICP, Senior Planner Reviewed by: Gary Chao, City Planner; Aarti Shrivastava, Community Development Director Approved for Submission by: David W. Knapp, CityManager Attachments: A: Planning Commission Resolution Nos. 6682, 6683 B:Planning Commission Staff Report dated March 27, 2012 C: Aerial Survey of Cul-de-sac lots with less than 60-foot lot widths. D: Phase I Environmental Site Assessment for Property Located at West Terminus of Bollinger Road in Cupertino, California prepared by Friar Associates, Inc. and undated. E: Limited Environmental Assessment (Phase II) Proposed Residential Development/Bollinger Road/Cupertino, California prepared by Friar Associates, Inc. Soil Testing completed by TestAmerica, dated 2/3/12. F:Arborist Report, prepared by Michael L. Bench, Consulting Arborist, dated 1-10-12. G: Negative Declaration, ERC Recommendation and Initial Study H: Written Neighborhood Comments I:Plan Set 225 226 227 228 229 230 231 232 233 234 235 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 259 260 261 262 263 264 265 266 267 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 CITY COUNCIL STAFF REPORT Meeting:May 15,2012 Subject:Main Street Cupertino mixed-use development ATTACHMENTS ARE SEPARATE 357 PUBLIC WORKSDEPARTMENT CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3354www.cupertino.org CITY COUNCIL STAFF REPORT Meeting:May 15, 2012 Subject Finch Avenue,betweenStevens Creek Boulevard and Vallco Adopt a resolutionto vacate Parkway. Recommended Action Adopt ResolutionNo. 12-_____. Discussion On December 5, 2011, SandHill Property Company submitted an application for development of approximately 17.4 acresofland, commonly known as the “Main Street” development, located North of Stevens Creek Boulevard, West of Tantau Avenue, South of Vallco Parkway, and both East and West of Finch Avenue. The application proposesthe vacation of Finch Avenue in order to fulfill thedesign intent. The City will be provided with public access easements (for both vehicular and pedestrian travel)across the site to link Stevens Creek Boulevard with Vallco Parkway, as well as public access to a proposed park and to the “town center” plaza area. The vacation of Finch Avenue is contingent upon City Council approval of the “Main Street” development, and is subject to conditionsof approval within that development permit. Specifically, the vacation of Finch Avenue will not be recorded with the County until such time that the proposed private street modifications are complete to the satisfaction of the Director of Public Works. Additionally, a bond will be required prior to issuance of permits for street modifications that will allow Finch Avenue to be reverted back to a standard City street in the casethat the construction of the project is not completed.The Developer shall install and complete the street modifications within two(2) yearsof approval of the Final Map, or such longer period as may be specifically authorized in writing by the City Engineer. Resolution No. 12-029,expressing the Intent to Vacate Finch Avenue, was adopted by City Council at the meeting held on March 20, 2012.The City Council also set a date and time for a public hearing on the proposed vacation for May 1, 2012.The Main Street project was deferred to the Council meeting on May 15, 2012,and therefore the public hearing for the proposed vacationof Finch Ave was also deferred to this date.The site was posted with a notice for this public hearing, as required by the State of California Streets and Highways Code. The land for Finch Avenue is not owned by the City. The existing roadway is contained within a street easement that provides the public with access rights. Oncethe Cityvacates this easement the land remains under the ownership of the existing owners. 358 Staff has determined that adoption of the resolution to Vacate Finch Avenuecan occur without adverse affect. Fiscal Impact There will be no fiscal impact incurred for approving the intentionto vacateFinch Avenue. ___________________________________ Prepared by:Chad E. Mosley Reviewed by:Timm D. Borden Approved for Submission by:Amy Chan,Interim City Manager Attachments: A. Resolution B. Map 359 360 361 362 363 ATTACHMENTB 123 10123 10150 19333 19333 VALLCOPKWY 19505 19501 19110 19480 19330 19550 10025 19220 10039 10055 10053 10052 10053 10062 10067 10066 10067 19450 10081 10080 1007010060 10080 10081 19470 19480 10100 19460 10121 10121 10095 10094 10131 10109 10108 10109 19479 19489 19469 10130 10141 10141 10123 10143 10122 10123 10151 19462 10133 10153 19482 10134 10135 19472 10161 10149 10163 10148 10149 10166 10160 10162 10163 10175 10176 10177 10189 10190 10191 10191 10190 10203 10200 10205 10204 10217 19387 10218 10219 10251 10250 10251 10241 . Subject:AdoptaresolutiontovacateFinchAvenue,betweenStevensCreekBoulevardandVallcoParkway. 10265 1026410265 10299 10321 10279 RecommendedAction:AdoptResolutionNo.12-_____. 10311 10278 10279 10293 3 10323 10292 10293 19514 10331 10340 19444 10337 10341 10339 10350 10306 10307 10350 10353 10352 10358 1034910311 57 364 10320 10321 10360 10359 10371 10325 10366 10362 10367 CITY MANAGER’S OFFICE CITY HALL 1010300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3212www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: May 15, 2012 Subject Amending Cupertino Municipal Code Section 2.18.110 deleting the resolution of intent and removal provisions regarding the City Attorney position. Recommended Action Conduct the first reading of Ordinance No 12.___: “An Ordinance of the City Council of the City of Cupertino amending Chapter 2.18 of the Cupertino Municipal Code regarding the City Attorney position”. Discussion On May 1, 2012, the City Council directed staff to revise Chapter 2.18.110 to delete the resolution of intent and removal provisions of the municipal code pertaining to the City Attorney and render it consistent with the changes made to Chapter 2.28 regarding the City Manager position. The attached redline ordinance reflects those changes. _____________________________________ Prepared by:Amy Chan,InterimCity Manager Attachments:RedlineOrdinance 365 ORDINANCE NO. 12-____ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 2.18 OF THE CUPERTINO MUNICIPAL CODE REGARDING THE CITY ATTORNEY POSITION THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY ORDAIN AS FOLLOWS: Cupertino Municipal Code 2.18 is hereby amended in part to read as follows. The remaining provisions remain unchanged: 2.18.110 SuspensionRemovalResignation. A. The removal of the City Attorney shall be only on a majority vote of the entire City Council. A resolution of intention to remove the City Attorney 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 City Attorney is to be suspended from his duties upon passage of the resolution. It shall also state a date and time 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 Attorney or sent to him or her by registered mail, receipt requested, at his last known address. The hearing shall be open to the public if the City Attorney so requests in writing by notifying the City Clerk at least five days prior to the date set for the hearing. B. At the time set for the hearing, the City Attorney 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 the removal as a condition of the removal, it being the intention of the Council that the City Attorney shall hold office only at the discretion of the Council and may be removed at any time by following its procedure set forth in this section. At the hearing, the Council shall take final action on the resolution, either to carry out his or her removal or to retain him or her. If the action is to remove the City Attorney, his or her removal shall be effective until at least two weeks have expired from the date of the hearing. Failure of the City Council to adopt a motion or resolution for removal shall be deemed a rescission of the resolution of intention. C. The City Attorney shall be entitled to receive his or her regular compensation during the period between the passage of the resolution and the effective date of his or her removal. DB. written notice given to the City Council. 366 INTRODUCED at a regular meeting of the Cupertino City Council the 15th day of May, 2012 and ENACTED at a regular meeting of the Cupertino City Council this ____ day of _____, 2012 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ________________________________ Grace Schmidt, City Clerk Mark Santoro, Mayor 367