10-06-15 Searchable packetCITY OF CUPERTINO
AGENDA
Tuesday, October 6, 2015
10300 Torre Avenue and 10350 Torre Avenue
CITY COUNCIL
5:00 PM
Non-televised Closed Session and Special Meeting (5:00); Televised Regular Meeting (6:45);
Special Public Facilities Corporation Meeting (Immediately Following Regular Meeting)
NOTICE AND CALL FOR A SPECIAL MEETING AND CLOSED SESSION OF
THE CUPERTINO CITY COUNCIL, REGULAR MEETING, AND SPECIAL
MEETING OF THE CUPERTINO PUBLIC FACILITIES CORPORATION
NOTICE IS HEREBY GIVEN that a special meeting and closed session of the
Cupertino City Council is hereby called for Tuesday, October 6, 2015, commencing
at 5:00 p.m. in City Hall Conference Room A, 10300 Torre Avenue, Cupertino,
California 95014. Said special meeting shall be for the purpose of conducting
business on the subject matters listed below under the heading, “Special Meeting."
The regular meeting items will be heard at 6:45 p.m. in Community Hall Council
Chamber, 10350 Torre Avenue, Cupertino, California. The special meeting of the
Cupertino Public Facilities Corporation will immediately follow the regular
meeting in Community Hall Council Chamber, 10350 Torre Avenue, Cupertino,
California 95014 for the purpose of conducting business on the subject matters
listed below under the heading, “Special Meeting.”
SPECIAL MEETING
OPEN SESSION - 5:00 PM
City Hall Conference Room A, 10300 Torre Avenue
ROLL CALL
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.
ORDINANCES AND ACTION ITEMS
Page 1 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
1.Subject: Designation of City representatives for purposes of labor negotiations
including salaries, salary schedules, or other compensation for represented and
unrepresented employees, and, for represented employees, any other matter within
the statutorily provided scope of representation
Recommended Action: Designate City representatives for purposes of labor
negotiations including salaries, salary schedules, or other compensation for
represented and unrepresented employees, and, for represented employees, any other
matter within the statutorily provided scope of representation
CLOSED SESSION
City Hall Conference Room A, 10300 Torre Avenue
2.Subject: Conference with Labor Negotiator (Government Code Section 54957.6);
City designated representatives: Director of Administrative Services, City
Manager, and Dania Torres; Employee organizations: Operating Engineers Local
No. 3 Union; Cupertino Employees' Association
3.Subject: Conference with Labor Negotiator (Government Code Section 54957.6);
City designated representatives: City Manager, and Dania Torres; Employee
organizations: Unrepresented (Management and Confidential) Employees'
Compensation Program
4.Subject: Conference with Legal Counsel-Anticipated Litigation: Significant
exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government
Code Section 54956.9. One case.
ADJOURNMENT
REGULAR MEETING
PLEDGE OF ALLEGIANCE - 6:45 PM
Community Hall Council Chamber, 10350 Torre Avenue
ROLL CALL
CEREMONIAL MATTERS AND PRESENTATIONS
POSTPONEMENTS
ORAL COMMUNICATIONS
Page 2 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
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.
1.Subject: Approve the September 1 City Council minutes
Recommended Action: Approve the minutes
Draft Minutes
2.Subject: Approve the September 8 City Council minutes
Recommended Action: Approve the minutes
Draft Minutes
3.Subject: Cancel the December 15 and January 5, 2016 City Council meetings
Recommended Action: Cancel the December 15 and January 5, 2016 City Council
meetings
Staff Report
4.Subject: Approval of an agreement with M-Group for planning consultant
services related to the Vallco Shopping District Planning Area and appropriation
of funds for such purpose
Recommended Action: Staff recommends that the City Council approve the
following:
1. Authorize the City Manager to negotiate and execute a consultant agreement with
the M-Group to provide planning consultation services to the City for the Vallco
Shopping District Planning Area, consistent with scope of work and cost estimate,
for an amount not to exceed $307,290 (Attachment A)
2. Authorize the City Manager to negotiate and execute amendments to Item 1 above
to the extent that funds are appropriated for the amendments and the total
expenditures are cost-recovered from the applicant
3. Approve an increase to the Fiscal Year 2015-16 Planning and Community
Development-Mid to Long Term Planning program budget of $238,019
Staff Report
A - Scope of Work and Cost Estimate
5.Subject: Agreement between the City of Cupertino, City of San Jose and City of
Saratoga for Asphalt Repair Work on De Anza Boulevard
Page 3 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
Recommended Action: Staff recommends Council take the following actions:
1.Authorize the City Manager to execute the agreement between the City of
Cupertino, City of San Jose and City of Saratoga on behalf of the City of Cupertino
in substantially similar format to the attached draft agreement; and
2.Amend approved FY 15/16 Operating Budget (Street Maintenance 270-85-821)
by an additional amount of $156,079 for additional asphalt repair services
Staff Report
A - Site map of City limits/area of proposed work
B - Draft Agreement
6.Subject: Final Map for Foothill Live/Work Project
Recommended Action: Adopt Resolution No. 15-084 approving the Final Map
(Tract No. 10291) for Foothill Live/Work Project
Staff Report
A - Draft Resolution
B - Final Map
SECOND READING OF ORDINANCES
7.Subject: An Ordinance amending Section 11.32.020 of the Cupertino Municipal
Code to remove Pruneridge Avenue as a Truck Route and amending Sections
11.32.055, 11.32.070, and 11.32.080 to Clarify Exceptions to Truck Access
within the City and Adjacent to Public Schools
Recommended Action: Conduct the second reading of Ordinance No. 15-2134: “An
Ordinance of the City Council of the City of Cupertino amending Section 11.32.020
of Chapter 11.32 of Title 11 of the Cupertino Municipal Code to remove Pruneridge
Avenue as a truck route and amending Sections 11.32.055, 11.32.070, and
11.32.080 to clarify exceptions for truck access within the City and within school
zones,” to remove outdated language and to clarify when certain trucks are exempt
from the restrictions and limitations on truck travel within the City and around school
zones
Staff Report
A - Draft Ordinance
B - Redline Version of Draft Ordinance
PUBLIC HEARINGS
8.Subject: Consideration of Lease with Verizon Wireless for a cell tower to be
located on the Civic Center Property (10300 Torre Avenue) and conduct a public
hearing on an appeal of the Planning Commission’s decision to provide Verizon
with a development permit, site approval, and height exception for the Civic
Center cell tower and any actions necessary for CEQA. A. Proposed Lease with
Page 4 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
Verizon Wireless for a cell tower to be located on the Civic Center Property
(Torre Avenue), subject to the terms of any City-issued permits; and
B. Appeal of the Planning Commission’s approval of an Architectural and Site
application for a personal wireless service facility consisting of 6 panel antennas
mounted on a tree pole designed for collocation and an enclosed base equipment
station and emergency power generator; a Development Permit to allow a
personal wireless service facility consisting of 6 panel antennas mounted on an
80-foot tall tree pole designed for collocation and an enclosed base equipment
station and emergency power generator; and a Height Exception to allow 6 panel
antennas to be mounted at a height of 66 feet on an 80-foot tall tree pole, where
55 feet is allowed for a wireless communications facility at Cupertino City Hall
(Applicant(s): Jenny Blocker (Verizon); Appellant: Lei Wang; Location: 10300
Torre Ave.; APN #369-31-033)
Recommended Action: A. Adopt Resolution No. 15-085 to:
1. Authorize the City Manager to execute an Antenna Ground Lease between the
City of Cupertino and GTE Mobilnet dba Verizon for a term of up to 5 years, for a
cell tower to be located on the Civic Center Property, in substantially the form as
presented to Council, and subject to the terms of any City-issued permits; and
2. Authorize the City Manager to negotiate and execute up to two five year (5-year)
options consistent with the terms of the Lease; and
B. 1. Conduct hearing and adopt Resolution No. 15-086 denying the appeal and
upholding the Planning Commission's decision per Resolutions #6786, #6787 ans
#6788; If appeal is denied, Authorize the City Manager to (negotiate and) execute a
lease agreement with Verizon for cellular wireless service at the Civic Center
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October 6, 2015City Council AGENDA
Staff Report - Verizon Lease
A1 - Verizon Draft Lease Agreement
A2 - Draft Resolution - Verizon Lease
Staff Report - Appeal
A - Draft Resolution - Appeal
B - PC Staff Report dated 08-25-15
C - PC Draft Meeting Minutes dated 08-25-15
D - Written Public Comments
E - PC Resolution No. 6786
F - PC Resolution No. 6787
G - PC Resolution No. 6788
H - Project Description
I - Existing & Proposed Coverage Maps
J - Height Justification Statement
K - RF Report
L - Noise Report
M - 3-D Simulation
N - Tree Pole Photo
O - Photosimulations
P - Arborist Report
Q - Alternatives Analysis
R - TICC Comments
S - Plan Set
T - Appeal Petition dated 09-04-15
U - Study Sesssion Minutes & Report dated 07-16-13
V - Applicant Response to Appeal
ORDINANCES AND ACTION ITEMS
9.Subject: PG&E Community Pipeline Safety Initiative and removal of hazardous
trees throughout the City and within themed areas of the Heart of the City
Specific Plan
Recommended Action: Receive staff and PG&E presentation
Staff Report
10.Subject: Preparation for 2015/16 Wet Weather Season
Recommended Action: 1.Receive staff presentation; and
2.Amend approved FY 15/16 Operating Budget (Storm Drain Maintenance 100-85-
818) by an additional amount of $150,000 for increased 2015/16 wet weather season
preparation.
A - NOAA October-December Precipitation Outlook
Page 6 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
11.Subject: Cancellation of Regular Council meeting on Monday, November 2, call
for Special Council meeting for Tuesday, November 3, and direction to staff to
amend the Cupertino Municipal Code regarding Council meetings that fall on
Election Tuesdays
Recommended Action: a. Consider cancelling the Regular Council meeting of
Monday, November 2 and call a Special Council meeting for Tuesday, November 3;
and b. Direct staff to amend Cupertino Municipal Code Section 2.04.010 regarding
regular Council meetings that fall on Election Tuesdays
Staff Report
REPORTS BY COUNCIL AND STAFF
12.Subject: Report on Committee assignments and general comments
Recommended Action: Report on Committee assignments and general comments
ADJOURNMENT
NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO
PUBLIC FACILITIES CORPORATION
NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino Public
Facilities Corporation is hereby called for Tuesday, October 6, 2015, commencing
immediately following the Cupertino City Council Regular meeting (which starts
at 6:45 p.m.) in the Community Hall Council Chambers, 10350 Torre Avenue,
Cupertino, California 95014. Said special meeting shall be for the purpose of
conducting business on the subject matters listed below under the heading,
“Special Meeting."
SPECIAL MEETING OF THE CUPERTINO PUBLIC FACILITIES
CORPORATION
ROLL CALL
Community Hall Council Chamber, 10350 Torre Avenue
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.
ORDINANCES AND ACTION ITEMS
Page 7 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
1.Subject: Approval of the City of Cupertino entering into an Antenna Ground
Lease between the City and GTE Mobilnet of California Limited Partnership, a
California Limited Partnership, d/b/a Verizon Wireless and Receive and File the
Letter from Independent Bond Counsel, Brian Quint Finding no Tax Implications
from the Lease
Recommended Action: a. Receive and File the Letter from Independent Bond
Counsel, Brian Quint Finding no Tax Implications from the Lease; and b. Provide
consent to the City of Cupertino to permit the City to enter into an Antenna Ground
Lease between the City and GTE Mobilnet of California Limited Partnership, a
California Limited Partnership, d/b/a Verizon Wireless
Staff Report
A - Opinion Letter Thimmig Brian Cupertino Public Facilities Corporation
ADJOURNMENT
Page 8 CITY OF CUPERTINO
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October 6, 2015City Council AGENDA
The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6;
litigation challenging a final decision of the City Council must be brought within 90
days after a decision is announced unless a shorter time is required by State or Federal
law.
Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested
persons must file a petition for reconsideration within ten calendar days of the date the
City Clerk mails notice of the City’s decision. Reconsideration petitions must comply
with the requirements of Cupertino Municipal Code §2.08.096. Contact the City Clerk’s
office for more information or go to http://www.cupertino.org/index.aspx?page=125 for
a reconsideration petition form.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning
to attend the next City Council meeting who is visually or hearing impaired or has any
disability that needs special assistance should call the City Clerk's Office at
408-777-3223, 48 hours in advance of the Council meeting to arrange for assistance.
Upon request, in advance, by a person with a disability, City Council meeting agendas
and writings distributed for the meeting that are public records will be made available
in the appropriate alternative format. Also upon request, in advance, an assistive
listening device can be made available for use during 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.
Members of the public are entitled to address the City Council concerning any item that
is described in the notice or agenda for this meeting, before or during consideration of
that item. If you wish to address the Council on any issue that is on this agenda, please
complete a speaker request card located in front of the Council, and deliver it to the
Clerk prior to discussion of the item. When you are called, proceed to the podium and
the Mayor will recognize you. If you wish to address the City Council on any other item
not on the agenda, you may do so by during the public comment portion of the meeting
following the same procedure described above. Please limit your comments to three (3)
minutes or less.
Page 9 CITY OF CUPERTINO
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1125 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:9/29/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Designation of City representatives for purposes of labor negotiations including salaries,
salary schedules, or other compensation for represented and unrepresented employees, and, for
represented employees, any other matter within the statutorily provided scope of representation
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:DesignationofCityrepresentativesforpurposesoflabornegotiationsincluding
salaries,salaryschedules,orothercompensationforrepresentedandunrepresentedemployees,
and,forrepresentedemployees,anyothermatterwithinthestatutorilyprovidedscopeof
representation
DesignateCityrepresentativesforpurposesoflabornegotiationsincludingsalaries,salary
schedules,orothercompensationforrepresentedandunrepresentedemployees,and,for
represented employees, any other matter within the statutorily provided scope of representation
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1122 Name:
Status:Type:Closed Session Agenda Ready
File created:In control:9/29/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Conference with Labor Negotiator (Government Code Section 54957.6); City designated
representatives: Director of Administrative Services, City Manager, and Dania Torres; Employee
organizations: Operating Engineers Local No. 3 Union; Cupertino Employees' Association
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
Subject:ConferencewithLaborNegotiator(GovernmentCodeSection54957.6);City
designatedrepresentatives:DirectorofAdministrativeServices,CityManager,andDania
Torres;Employeeorganizations:OperatingEngineersLocalNo.3Union;Cupertino
Employees' Association
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1124 Name:
Status:Type:Closed Session Agenda Ready
File created:In control:9/29/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Conference with Labor Negotiator (Government Code Section 54957.6); City designated
representatives: City Manager, and Dania Torres; Employee organizations: Unrepresented
(Management and Confidential) Employees' Compensation Program
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
Subject:ConferencewithLaborNegotiator(GovernmentCodeSection54957.6);City
designatedrepresentatives:CityManager,andDaniaTorres;Employeeorganizations:
Unrepresented (Management and Confidential) Employees' Compensation Program
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1130 Name:
Status:Type:Closed Session Agenda Ready
File created:In control:9/30/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Conference with Legal Counsel-Anticipated Litigation: Significant exposure to litigation
pursuant to paragraph (2) of subdivision (d) of Government Code Section 54956.9. One case.
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:ConferencewithLegalCounsel-AnticipatedLitigation:Significantexposureto
litigationpursuanttoparagraph(2)ofsubdivision(d)ofGovernmentCodeSection54956.9.
One case.
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-0695 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:2/18/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Approve the September 1 City Council minutes
Sponsors:
Indexes:
Code sections:
Attachments:Draft Minutes
Action ByDate Action ResultVer.
City Council10/6/20151
Subject: Approve the September 1 City Council minutes
Approve the minutes
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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DRAFT MINUTES
CUPERTINO CITY COUNCIL
Tuesday, September 1, 2015
CITY COUNCIL MEETING
PLEDGE OF ALLEGIANCE
At 6:45 p.m. Mayor Rod Sinks called the City Council meeting to order in the Cupertino
Community Hall Council Chambers, 10350 Torre Avenue and led the Pledge of Allegiance.
ROLL CALL
Present: Mayor Rod Sinks, Vice Mayor Barry Chang, and Council members Darcy Paul,
Savita Vaidhyanathan, and Gilbert Wong. Absent: None.
CLOSED SESSION
Mayor Sinks announced that Council held a Closed Session on August 28 regarding Public
Employment (Gov't Code Section 54957) - Title: City Attorney and that Council proceeded
with the City Attorney recruitment process.
CEREMONIAL MATTERS AND PRESENTATION - None
POSTPONEMENTS - None
ORAL COMMUNICATIONS
Kelli Richards talked about the Hills at Vallco development offering support for the project.
Donna Austin talked about the Hills at Vallco development offering support for the project.
Kevin McClelland on behalf of the Cupertino Chamber of Commerce talked about the Hills at
Vallco development offering support for the project.
Richard Lowenthal talked about the Hills at Vallco development offering support for the
project.
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City Council Minutes September 1, 2015
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Lisa Warren talked about feeling angry that Council wasn’t listening to the residents
regarding new development in Cupertino.
Annie Ho talked about the Hills at Vallco development offering support for the project.
Phyllis Dickstein talked about the Hills at Vallco development noting opposition for the
project.
Orrin Mahoney talked about the Hills at Vallco development offering support for the project.
Cathy Helgersen talked about sewer and treatment plant issues and concerns regarding any
new development in Cupertino before these issues are addressed.
Helene Davis Donna Austin talked about the Hills at Vallco development offering support for
the project.
Pam Hershey talked about the Hills at Vallco development and concerns regarding crowding
at schools and privacy for residents who live nearby.
Steven Scharf talked about Public Record Act requests and distrust of the developer for the
Hills at Vallco project.
Stacy Wilson talked about the Hills at Vallco development and concerns regarding impact to
schools; increase in traffic; and rental units not bringing in tax money for Cupertino.
Jon Willey talked about the Hills at Vallco development and traffic concerns.
Andrew Walters talked about embracing inevitable growth, working to solve the issues that
growth creates, and offered support for the Hills at Vallco project.
Tanvi Chokshi and Shronya talked about the value to the community of the Hills at Vallco
development and expressing concern for school overcrowding and to find a viable solution to
this issue first.
Peggy Griffin talked about the “demand to cease and desist” letter the City received from the
Better Cupertino group in addition to issues with residents not being included in stakeholder
meetings that occurred regarding community benefits.
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City Council Minutes September 1, 2015
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Liang-Fang Chao talked about General Plan policies and asked to keep residents involved
with the Vallco Specific Plan.
CONSENT CALENDAR
Wong moved and Chang seconded to approve the items on the Consent Calendar as
presented with item number 1 as amended and with the exception of item number 2 which
was pulled for discussion. Ayes: Sinks, Chang, Paul, Vaidhyanathan, and Wong. Noes: None.
Abstain: None. Absent: None.
1. Subject: Approve the August 18 City Council minutes
Recommended Action: Approve the minutes
Written communications for this item included an amended page 5 of the minutes.
2. Subject: Antibiotic use in Livestock Production
Recommended Action: Adopt Resolution No. 15-079 calling for a ban on the
nontherapeutic use of antibiotics in Livestock Agriculture
Staff answered a question from Council.
Wong moved and Chang seconded to adopt Resolution No. 15-079 calling for a ban on
the nontherapeutic use of antibiotics in Livestock Agriculture. The motion carried
unanimously.
3. Subject: Application for Alcoholic Beverage License for Rootstock Wine Bar, 19389
Stevens Creek Boulevard
Recommended Action: Recommend approval of the Alcoholic Beverage License to the
California Department of Alcoholic Beverage Control for Rootstock Wine Bar, 19389
Stevens Creek Boulevard
SECOND READING OF ORDINANCES - None
PUBLIC HEARINGS- None
ORDINANCES AND ACTION ITEMS
4. Subject: Policy establishing procedures for authorizing the processing of GPA
applications
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City Council Minutes September 1, 2015
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Recommended Action: Adopt Resolution No. 15-078 adopting procedures for
authorizing the processing of General Plan amendment applications
Description: Application No(s): CP-2015-02, Applicant(s): City of Cupertino, Location:
Citywide; City Project for City Council to consider adopting a policy and resolution
establishing procedures for authorizing the processing of General Plan Amendment
applications
Written communications for this item included letters and emails to Council and a staff
PowerPoint presentation.
Senior Planner Piu Ghosh reviewed the staff report via a PowerPoint presentation.
The following individuals spoke on this item:
Kevin McClellan on behalf of Cupertino Chamber of Commerce
Frank Geefay
Patricia Sausedo on behalf of Building Industry Association (BIA) Bay Area
Cathy Helgersen
Jennifer Griffin
Jon Willey (distributed written material)
Yu Ying
Xiaowen Wang on behalf of Better Cupertino (distributed written material)
Liang-Fang Chao
Peggy Griffin
Darrel Lum on behalf of Concerned Citizens of Cupertino (CCC)
Jason Lundgaard on behalf of Apple
Steven Scharf
Mark Tersini on behalf of CT Urban
Poonam Pandey
Their comments included: adopt allocations; have one project submitted at a time;
concern for sustainable growth and infrastructure not keeping up with increased
traffic; issues with adequate housing; no support for community benefits; no support
for applications 4 times a year; no hidden items on agendas; residents need to be
involved in stakeholder meetings; policy too vague and non-specific; each project
should stand in its own; need definition of retail; remove voluntary community
amenities from policy; discourage in lieu fees; add sufficient public noticing; keep
existing process and allocations as approved in November; how handle conflicts of
interest if projects are bundled together; prevent rezoning of commercial land for
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City Council Minutes September 1, 2015
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housing; applications should stand on their own without community benefits; Oaks
Shopping Center revitalization includes modest amendments for a successful mixed-
use project; impact to schools with Vallco development.
Staff answered questions from Council and also addressed the questions the public had
asked.
Chang moved and Vaidhyanathan seconded, and the motion carried with Paul and
Wong voting no to adopt Resolution No. 15-078 adopting procedures for authorizing
the processing of General Plan amendment applications with the following
amendments:
Proposals for General Plan Amendment applications can be made 2x /year (two
postcard notices every year)
Any rejected proposals may be resubmitted with minor amendments within 30 days
Remove language requiring applicants to wait for one year for reapplication
Revise community benefits language to note that if any are proposed these should be
submitted with project proposal
Wong noted for the record that he voted no because the community members who
spoke did not support the change and that the new process isn't the right way for
Cupertino.
Paul noted for the record that he voted no because the policy is wasteful and ill-
considered; would create at least two meetings for GPA every year and invite up to
four meetings with the appeal process; it hasn’t been established that this process
would give more or better community benefits; the sentiment of the community
members is that they don’t want it.
5. Subject: Ordinance amending Cupertino Municipal Code Title 16 to add Chapter 28 to
provide an expedited streamlined permitting process for small residential rooftop
systems as mandated by the State of California, and City Manager authorization to
adopt an electronic signature policy
Recommended Action: 1. Conduct the first reading of Ordinance No. 15-2133: "An
Ordinance of the City Council of the City of Cupertino amending Cupertino Municipal
Code Title 16 to add Chapter 28 to provide an expedited streamlined permitting
process for small residential rooftop systems"; and 2. Authorize the City Manager to
adopt a policy to accept e-signatures in compliance with State Law
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Assistant City Manager Aarti Shrivastava reviewed the staff report.
Staff answered questions from Council.
Jennifer Griffin talked about concerns with using the word streamlining and asked if
this item pertained to solar on a home or business.
City Clerk Grace Schmidt read the title of the ordinance.
Wong moved and Chang seconded to read Ordinance No. 15-2133 by title only and
that the City Clerk’s reading would constitute the second reading thereof. Ayes: Sinks,
Chang, Paul, Vaidhyanathan, and Wong. Noes: None. Abstain: None. Absent: None.
Council gave direction to staff to look into including triplex, 4-plex, and small
commercial buildings less than 10,000 square feet at the second reading.
Wong moved and Chang seconded to authorize the City Manager to adopt a policy to
accept e-signatures in compliance with State Law only for social rooftop systems and
gave direction to come back at a future date to extend the policy for accepting e-
signatures for other items. The motion carried unanimously.
REPORTS BY COUNCIL AND STAFF
6. Subject: Report on Committee assignments and general comments
Recommended Action: Report on Committee assignments and general comments
City Manager David Brandt noted that there was a soft opening of the Environmental
Education Center (EEC) and that there would be a formal opening later in October.
Council members highlighted the activities of their committees and various
community events.
ADJOURNMENT
At 10:35 p.m., Mayor Sinks adjourned the meeting to a Special Meeting on Sept 11 at 9:0 0
a.m. Note: The next regular meeting will be September 15.
_______________________________
Grace Schmidt, City Clerk
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Staff reports, backup materials, and items distributed at the City Council meeting are
available for review at the City Clerk’s Office, 777-3223, and also on the Internet at
www.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet.
Most Council meetings are shown live on Comcast Channel 26 and AT&T U-verse Channel 99
and are available at your convenience at www.cupertino.org. Click on Agendas & Minutes,
and then click Archived Webcast. Videotapes are available at the Cupertino Library, or may
be purchased from the Cupertino City Channel, 777-2364.
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1082 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:9/8/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Approve the September 8 City Council minutes
Sponsors:
Indexes:
Code sections:
Attachments:Draft Minutes
Action ByDate Action ResultVer.
City Council10/6/20151
Subject: Approve the September 8 City Council minutes
Approve the minutes
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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DRAFT MINUTES
CUPERTINO CITY COUNCIL
Tuesday, September 8, 2015
SPECIAL CITY COUNCIL MEETING
ROLL CALL
At 4:40 p.m. Mayor Rod Sinks called the Special City Council meeting to order in Cupertino
City Hall Conference Room A, 10300 Torre Avenue.
ROLL CALL
Present: Mayor Rod Sinks, Vice Mayor Barry Chang, and Council members Darcy Paul (4:42
p.m.) and Gilbert Wong. Absent: Savita Vaidhyanathan.
ORAL COMMUNICATIONS
Mark Schwab on behalf of Diamond in the Rough Films LLC talked about the upcoming
Diamond in the Rough Film Festival.
ORDINANCES AND ACTION ITEMS
1a. Subject: Request of Council Member Savita Vaidhyanathan to attend the closed session
meeting on the item titled “Public Employment (54957). Title: City Attorney” by
teleconference; waive the one week advance notice, and authorize the teleconference
Recommended Action: Consider request of Council Member Savita Vaidhyanathan to
attend the closed session meeting on the item titled “Public Employment (54957). Title:
City Attorney by teleconference; waive the one week advance notice, and authorize the
teleconference
City Clerk Grace Schmidt reviewed the staff report.
Chang moved and Sinks seconded to authorize Council member Vaidhyanathan to
teleconference for the second closed session item. The motion failed with Paul and
Wong voting no, Chang and Sinks voting yes, and Vaidhyanathan absent.
At 4:50 p.m. Council went into closed session.
23
City Council Minutes September 8, 2015
2
CLOSED SESSION
1. Subject: Conference with Legal Counsel-Anticipated Litigation: Significant exposure to
litigation pursuant to paragraph (2) of subdivision (d) of Gov't Code Section 54956.9:
One case
2. Subject: Public Employment (54957). Title: City Attorney
ADJOURNMENT
Mayor Sinks adjourned the meeting to the Regular Meeting of September 15.
_______________________________
Grace Schmidt, City Clerk
Staff reports, backup materials, and items distributed at the City Council meeting are
available for review at the City Clerk’s Office, 777-3223, and also on the Internet at
www.cupertino.org. Click on Agendas & Minutes, then click on the appropriate Packet.
Most Council meetings are shown live on Comcast Channel 26 and AT&T U-verse Channel 99
and are available at your convenience at www.cupertino.org. Click on Agendas & Minutes,
and then click Archived Webcast. Videotapes are available at the Cupertino Library, or may
be purchased from the Cupertino City Channel, 777-2364.
24
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1095 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:9/16/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Cancel the December 15 and January 5, 2016 City Council meetings
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
Action ByDate Action ResultVer.
City Council10/6/20151
Subject: Cancel the December 15 and January 5, 2016 City Council meetings
Cancel the December 15 and January 5, 2016 City Council meetings
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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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: October 6, 2015
Subject
Cancel the December 15 and January 5, 2016 City Council meetings.
Recommended Action
Cancel the December 15 and January 5, 2016 City Council meetings.
Discussion
It has been past City Council practice to cancel the first meeting in January because City
Hall is closed between Christmas and New Year’s Day. Council member requests have
been made to also cancel the second meeting in December.
Sustainability Impact
None
Fiscal Impact
None
_____________________________________
Prepared by: Grace Schmidt, City Clerk
Approved for Submission by: David Brandt, City Manager
Attachments: None
26
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1115 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:9/28/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Approval of an agreement with M-Group for planning consultant services related to the
Vallco Shopping District Planning Area and appropriation of funds for such purpose
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Scope of Work and Cost Estimate
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:ApprovalofanagreementwithM-Groupforplanningconsultantservicesrelatedto
the Vallco Shopping District Planning Area and appropriation of funds for such purpose
Staff recommends that the City Council approve the following:
1.AuthorizetheCityManagertonegotiateandexecuteaconsultantagreementwiththeM-
GrouptoprovideplanningconsultationservicestotheCityfortheVallcoShoppingDistrict
PlanningArea,consistentwithscopeofworkandcostestimate,foranamountnottoexceed
$307,290 (Attachment A)
2.AuthorizetheCityManagertonegotiateandexecuteamendmentstoItem1abovetothe
extentthatfundsareappropriatedfortheamendmentsandthetotalexpendituresarecost-
recovered from the applicant
3.ApproveanincreasetotheFiscalYear2015-16PlanningandCommunityDevelopment-
Mid to Long Term Planning program budget of $238,019
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
Approval of an agreement with M-Group for planning consultant services related to the
Vallco Shopping District Planning Area and appropriation of funds for such purpose.
Recommended Action
Staff recommends that the City Council approve the following:
1. Authorize the City Manager to negotiate and execute a consultant agreement with
the M-Group to provide planning consultation services to the City for the Vallco
Shopping District Planning Area, consistent with scope of work and cost estimate,
for an amount not to exceed $307,290 (Attachment A).
2. Authorize the City Manager to negotiate and execute amendments to Item 1 above
to the extent that funds are appropriated for the amendments and the total
expenditures are cost-recovered from the applicant.
3. Approve an increase to the Fiscal Year 2015-16 Planning and Community
Development-Mid to Long Term Planning program budget of $238,019.
Discussion
On September 8, 2015, Sand Hill Property Company submitted an application for a
development project within the Vallco Shopping District. This will include a Specific
Plan which will be submitted at a later date.
Staff recommends the City enter into a contract for consultant planning services by the
M-Group to augment staff on the project. In keeping with the City’s policy, the
applicant will provide funds for full cost-recovery and a 10% fee ($30,729) for
administrative services. Staff also recommends that the City Manager be authorized to
negotiate and execute amendments to the approved contract in order to ensure that the
costs associated with provision of services are recovered from the applicant through
project completion.
28
Fiscal Impact
This contract and associated costs were not anticipated as part of the Fiscal Year 2015-16
Final Budget. The contract costs and associated administrative costs exceed the current
budget for the project by $238,019. Therefore, it is recommended that the Planning and
Community Development – Mid to Long Range program budget be increased by the
difference. Cost associated with this contract, and any future amendments, will be 100%
recovered. As previously mentioned, the City will receive a 10% in administrative
overhead for managing the contract.
This will result in additional expenditures of $307,290 and additional revenue to the
General fund of $338,019. There will be a net positive fiscal impact to the General Fun in
the amount of $30,729 (10% of the contract amount.)
_____________________________________
Prepared by: Piu Ghosh, Senior Planner
Reviewed by: Aarti Shrivastava, Assistant City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A. Scope of Work and Cost Estimate
29
m-group.us
GROUP
Submitted by M-GROUP
THE HILLS AT VALLCO SCOPE OF SERVICES FOR PLANNING CONSULTING SERVICES
a new design on urban planning
CITY OF CUPERTINO
579 Clyde Avenue
Suite 340
Mountain View, CA 94043
30
GROUP
page left
blank
31
THE HILLS AT VALLCO - SCOPE OF WORK FOR PLANNING CONSULTING SERVICES • 3
GROUP
INTRODUCTION
M-Group is pleased to offer this scope of work to provide project management, planning and
development review for the proposed The Hills at Vallco project in Cupertino, California.
The 50+ acre project site is located ideally in the center of Silicon Valley on both sides of Wolfe
Road north of Stevens Creek Boulevard and south of Interstate 280. The applicant, Sand Hill
Property Company proposes a complete redevelopment of the site. The project proposes
removal of the existing 1.2 million square foot Vallco Mall and replacing it with new mixed-use
construction as follows:
• Two million square feet of Class A office space
• 625,000 square feet of Retail/Restaurant/Recreation space
• 800 Residential units (680 market rate apartments, 80 affordable apartments and 40
Senior units)
• Over 9,000 above and below ground parking spaces
An interconnected grid of streets would provide a new pedestrian-oriented shopping, living
and working environment, effectively creating a new downtown for Cupertino. A major
component of the project is a 30+ acre green roof to serve as a new community open space
and park.
The attached scope of work describes the tasks necessary to complete a successful
development review of a project of this size, scope and complexity.
Our experience providing planning services for numerous projects high profile projects
throughout the Bay Area allows us to provide superior service and project management for
the City.
Please do not hesitate to contact us if you have any questions regarding this proposed scope
of work or if there is any additional information you need. Thank you for contacting us, and we
look forward to working with you on this project.
SCOPE OF WORK FOR PLANNING CONSULTANT SERVICES
This proposal is for Planning Consultant Services for an application the City has received for
The Hills at Vallco located within the City’s Vallco Shopping District Special Area. In addition to
the proposed project, the project applicant will also be submitting a Specific Plan for the
Special Area. The following M-Group staff has been selected to work on this project:
a. Geoff I. Bradley, AICP, Principal - Project Manager
b. Sheldon Ah Sing, AICP, Senior Planner – Assistant Project Manager
c. Blaze Syka, Associate Planner – Graphics and Support
32
4 • a new design on urban planning • m-group.us
GROUP
Substitutions to the staff on the project team will not be made without prior review and
approval of city staff. The Principal on the project team will serve as the Project Manager, and
will be the day-to-day contact for the project. As long as the Principal is affiliated with the
M-Group, he shall serve as the Primary Project Manager unless authorized to be substituted
by the City. M-Group will ensure that all commitments made to the City are completed on
schedule and within budget.
All M-Group work will be billed on an hourly basis payable by the City within 30 days. With
every invoice, the M-Group will indicate either on the invoice, or as a separate attachment, the
percentage of work completed and the percentage of the total budget invoiced.
It is anticipated that the services will be needed through December 2016. The total cost of
providing these services is estimated to be $307,290. The scope of work and budget for
planning consultant services include the following tasks as described below. No costs of travel
will be charged toward the project.
TASK 1 | PROJECT MANAGEMENT AND COORDINATION
Project management includes the coordination of information via telephone, in-person
meetings and e-mail correspondence between the applicant or applicant’s representatives,
city staff, outside consultants, other city departments, outside agencies and M-Group. M-Group
will provide pro-active management of the project processing to ensure that all the issues and
information is known to the appropriate parties. This ensures completion of critical milestones
so that the project stays close to schedule. M-Group staff will be highly responsive during the
entire project entitlement process.
The M-Group staff will provide services to ensure close coordination with other city
departments, outside consultants and outside agencies involved in review of the project. In
addition to the internal city departments this includes:
• Santa Clara County Fire Department
• Santa Clara County Sheriff’s Office
• Cupertino Sanitary District
• California Water Service
• Pacific Gas & Electric
• Recology (Garbage Collection)
In addition to project management, under direction from staff, the M-Group will perform
other tasks as assigned, which may include responding to inquiries and/or attendance at
large-format meetings.
TASK 2 | MEETINGS WITH CITY STAFF AND APPLICANT TEAM
M-Group staff will be available for all necessary meetings with city staff and/or the applicant
team. This task assumes a regular weekly team meeting of 3-4 hours as well as other meetings
as needed. As a locally based firm, M-Group staff will be available for meetings at the project
site, City Hall or elsewhere as needed.
33
THE HILLS AT VALLCO - SCOPE OF WORK FOR PLANNING CONSULTING SERVICES • 5
GROUP
TASK 3 | SITE VISITS
During the course of review of the project, the M-Group project team will visit the site, take
photographs to document existing conditions of the project area and the surrounding area.
Special attention will be paid to significant trees, traffic patterns and transitions to the
surrounding uses. Other site visits may be required as necessary and/or as directed by city
staff.
TASK 4 | COMPLETENESS REVIEW
The project submittal will be reviewed for completeness in accordance with Federal, State and
local laws, regulations and policies. The evaluation will include review of consistency of the
proposed Specific Plan and project plans with the General Plan and Zoning regulations and
other relevant policy documents. A written comment letter, upon review by city staff, will be
sent to the applicant.
Upon receipt of subsequent submittals by the applicant, M-Group staff will review the project’s
revisions and responses to comments addressed in the initial and any subsequent comment
letters. Additional written comment letters will be sent to the applicant, upon review by city
staff, as needed. Comments and any communication needed to be sent to the applicant will
be provided to city staff within 20 days of receipt of plans or on a mutually agreeable schedule.
TASK 5 | REVIEW PLANS AND RESEARCH
Detailed plan review will be provided to ensure a high level of familiarity with the proposed
project as well as the surrounding area and to ensure compliance with General Plan, zoning
requirements and other policy documents. As-needed research services will be provided by
the M-Group staff to gather information on project issues, challenges and solutions. As the
project includes innovative features not typically provided, such as the extensive green roof,
M-Group staff will carefully evaluate them in order to provide appropriate analysis.
TASK 6 | PREPARE STAFF REPORTS, RESOLUTIONS, AND ORDINANCES
M-Group staff will prepare all staff reports and necessary exhibits as well as draft resolutions
and ordinances for the Environmental Review Committee Planning Commission and City
Council following the City’s format and schedule. M-Group has extensive experience preparing
reports of this type and will coordinate closely with City staff. These will be revised and
finalized by the M-Group staff upon review of city staff.
34
6 • a new design on urban planning • m-group.us
GROUP
TASK 7 | COORDINATE EIR PREPARATION
The M-Group project team will work closely with the EIR consultant to ensure a smooth and
efficient flow of information. Our work on large development projects includes providing EIR
management to ensure that the EIR process is completed in a timely fashion consistent with
state law (CEQA). Close coordination between the EIR consultant, the M-Group, the legal team
and city staff is required to ensure timely preparation and release of a legally adequate EIR.
The M-Group project team will coordinate distribution and review of administrative drafts and
screen check versions of the Draft EIR, Response to comments and any subsequent
supplemental memos and addenda prepared through final entitlement of the project.
M-Group will also participate in review of the EIR, Notice of Preparation (NOP), Notice of
Completion (NOC), Notice of Availability (NOA) and other required environmental documents
and notices prior to filing/publication. Finally, the M-Group will also coordinate distribution of
the NOP, NOA and Draft EIR with city staff.
TASK 8 | PUBLIC NOTICE PREPARATION AND REVIEW
The M-Group project team will prepare public notices for city staff review prior to publication
deadlines. These will include standard legal notices as well as any needed mailings such as
post cards, flyers or display ads. Transmittal of the public notices for publication and/or
distribution will be completed by city staff.
TASK 9 | PREPARE PRESENTATIONS
The M-Group project team will prepare and finalize, upon review of city staff, PowerPoint
presentations including graphics, maps or other figures, as necessary for Community Meetings,
Planning Commission and City Council meetings. Our visual presentations are designed to be
easy to understand and engaging.
TASK 10 | MEETING ATTENDANCE AND PREPARATION
The M-Group project team will prepare for and/or present the project at meetings including
Study Sessions and Public Hearings with Planning Commission and City Council, upon staff
direction. Presentations will be tailored to provide relevant and useful information for both
the public at large and the decision making bodies. Significant issues will be highlighted as well
as areas of controversy. Our presentation will be clear, concise and easily understood by both
the public and the decision makers.
TASK 11 | ORGANIZE FILES AND PROJECT CLOSE OUT
In addition, on-going file management ensures proper record keeping will be maintained.
Project files will be organized both electronically and paper copies and provided to the City.
35
The Hills at Vallco
M-GROUP Project Planning Cost Estimate September 25, 2015
$225 $140 $115
Cost Cost Cost Hours Costs
1.0 Project Management & Coord.240 $54,000 60 $8,400 20 $2,300 320 $64,700
2.0 Mtgs. with Staff & Applicant 190 $42,750 75 $10,500 0 $0 265 $53,250
3.0 Site Visits 20 $4,500 10 $1,400 10 $1,150 40 $7,050
4.0 Completeness Review 40 $9,000 20 $2,800 0 $0 60 $11,800
5.0 Review Plans & Research 60 $13,500 30 $4,200 10 $1,150 100 $18,850
6.0 Prepare Staff Reports/Resolutions/Ord.120 $27,000 40 $5,600 20 $2,300 180 $34,900
7.0 Coord. EIR Preparation 90 $20,250 20 $2,800 0 $0 110 $23,050
8.0 Public Notice Preparation & Review 30 $6,750 20 $2,800 20 $2,300 70 $11,850
9.0 Prepare Presentations 30 $6,750 16 $2,240 40 $4,600 86 $13,590
10.0 Meeting Attendance & Preparation 110 $24,750 55 $7,700 30 $3,450 195 $35,900
11.0 Organize Files/Close Out 10 $2,250 4 $560 10 $1,150 24 $3,960
940 $211,500 350 $49,000 160 $18,400 1450 $278,900
18.1 6.7 3.1 27.9
Percentage of hours per staff 65%24%11%Printing &
Mailing Cost $500
NOTES
10%
contingency $27,890
1 M-Group
Total Cost $307,290
2
Average Hours per Week over 52 week period
Cost Proposal is for a Time & Materials with a Not to Exceed Amount without Prior
Authorization Contract.
Sub-totalsTaskTask Description
Geoff I. Bradley, AICP
Principal
Hours
Sheldon Ah Sing, AICP
Senior Planner
Hours Hours
Blaze Syka
Associate Planner
Due to the nature of the development review process, some reassignment of hours will be
necessary, subject to city approval.
36
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1085 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:9/10/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Agreement between the City of Cupertino, City of San Jose and City of Saratoga for Asphalt
Repair Work on De Anza Boulevard
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Site map of City limits/area of proposed work
B - Draft Agreement
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:AgreementbetweentheCityofCupertino,CityofSanJoseandCityofSaratogafor
Asphalt Repair Work on De Anza Boulevard
Staff recommends Council take the following actions:
1.AuthorizetheCityManagertoexecutetheagreementbetweentheCityofCupertino,
CityofSanJoseandCityofSaratogaonbehalfoftheCityofCupertinoinsubstantially
similar format to the attached draft agreement; and
2.AmendapprovedFY15/16OperatingBudget(StreetMaintenance270-85-821)byan
additional amount of $156,079 for additional asphalt repair services
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
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1
PUBLIC WORKS DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3354 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
Agreement between the City of Cupertino, City of San Jose and City of Saratoga for
Asphalt Repair Work on De Anza Boulevard.
Recommended Action
Staff recommends Council take the following actions:
1. Authorize the City Manager to execute the agreement between the City of
Cupertino, City of San Jose and City of Saratoga on behalf of the City of
Cupertino in substantially similar format to the attached draft agreement; and
2. Amend approved FY 15/16 Operating Budget (Street Maintenance 270-85-821) by
an additional amount of $156,079 for additional asphalt repair services.
Discussion
De Anza Boulevard south of Bollinger Road is a boundary street owned and maintained
in various areas by Cupertino, San Jose and Saratoga. The Cities of Cupertino, San Jose
and Saratoga mutually desire to improve the entire shared pavement surface at the
intersections of Bollinger Road and Prospect Road at De Anza Boulevard at one time.
Cupertino shares the Bollinger Road intersection with San Jose and the Prospect Road
intersection is shared by all three cities. Attachment A details city limits and the
proposed areas of asphalts repairs.
Provisions of the agreement designate Cupertino as the lead city administering the
construction of the project. The contractors working on the 2015 Pavement Maintenance
Project Phase 1 & 2 projects are under contract to complete the Cupertino portion of the
Bollinger & Prospect Road intersections. Approval of this agreement will allow staff to
add to these ongoing projects. Cupertino, San Jose and Saratoga each will pay 100% of
the project cost incurred on their portion of the road, with San Jose and Saratoga paying
an additional 10% for their share of cost of project management provided by Cupertino.
This agreement will allow the entire De Anza Boulevard intersections at Bollinger &
Prospects road to be maintained efficiently and cost-effectively, providing for enhanced
ride quality and reduced inconvenience to the public.
38
2
Sustainability Impact
None
Fiscal Impact
The cost to improve the Cupertino portion of the De Anza Boulevard at Bollinger
Road and De Anza Boulevard at Prospect Road intersections is included in the
current fiscal year operating budget. An additional appropriation of $156,079 is
needed for asphalt repair work in San Jose and Saratoga. Per the terms of the
agreement, 110% of the cost of work completed in San Jose and Saratoga will be
reimbursed to Cupertino. The total estimated amount to be reimbursed from the
City of San Jose and the City of Saratoga is $104,560 and $67,127 respectively for a
total of $171,687. With the 10% mark-up for project management, the general fund of
Cupertino will receive up to $15,608 in administrative fee revenue. _____________________________________
Prepared by: Roger Lee, Assistant Director of Public Works
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Site map of City limits / area of proposed work
B - Draft Agreement
39
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MILL AND FILL
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SAN JOSE
SARATOGA
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MILL AND FILL
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Page 1 of 11
AGREEMENT BETWEEN THE CITIES OF
CUPERTINO, SAN JOSE AND SARATOGA
FOR THE ASPHALT REPAIR OF
DE ANZA BOULEVARD AT PROSPECT ROAD INTERSECTION
AND DE ANZA BOULEVARD AT BOLLINGER ROAD INTERSECTION
This Agreement (herein “Agreement”) is made and entered into this ___ day of ____________, 2015, (herein
the “Effective Date”) by and between the City of Cupertino, a chartered California municipal corporation, with
its principal place of business located at 10300 Torre Avenue, Cupertino, California 95014 (herein
“CUPERTINO”) the City of San José, a California municipal corporation, (herein “SAN JOSE”) and the City of
Saratoga, a chartered California municipal corporation, with its principal place of business located at 13777
Fruitvale Avenue, Saratoga, California 95070. CUPERTINO, SAN JOSE and SARATOGA may be referred to
herein individually as a “Party” or a “City” or collectively as the “Parties”, “Cities” or the “Parties to this
Agreement”.
RECITALS
WHEREAS:
A. CUPERTINO and SAN JOSE find that it is in the public interest to remove and replace failed
asphalt at De Anza Boulevard & Bollinger Road intersection, over which CUPERTINO and
SAN JOSE have jurisdiction; and
B. CUPERTINO, SAN JOSE and SARATOGA find that it is in the public interest to remove and
replace failed asphalt at De Anza Boulevard & Prospect Road intersection, over which
CUPERTINO, SAN JOSE, and SARATOGA have jurisdiction; and
C. It is in the public interest for CUPERTINO, SAN JOSE, and SARATOGA to complete the
PROJECT in a cooperative and economical manner by constructing CUPERTINO, SAN JOSE,
and SARATOGA portions of the PROJECT together; and
D. Each Party has agreed to perform its portion of the work as described herein, under its direction.
In consideration of the above referenced recitals and the following mutual covenants, agreements and
obligations of the parties, CUPERTINO, SAN JOSE, and SARATOGA agree as follows:
AGREEMENT PROVISIONS
1. PROJECT DESCRIPTION:
The work to be performed under this Agreement within San Jose will consist of removing and replacing
approximately 500 tons of asphalt and placing 3850 square yards of type II slurry in San Jose along with
replacement of affected traffic striping and traffic detector loops of the San Jose portion of De Anza
Boulevard at Prospect Road intersection and De Anza Boulevard at Bollinger Road intersection. The
work to be performed under this Agreement within Saratoga will consist of removing and replacing
approximately 300 tons of asphalt in Saratoga along with replacement of affected traffic striping and
traffic detector loops of the Saratoga portion of De Anza Boulevard at Prospect Road intersection
(herein the “PROJECT”). The work to be performed is more fully described in the document entitled
“Scope of Work and Schedule of Performance” set forth in Exhibit A, attached and incorporated by
reference. Approximately 25% of De Anza Boulevard at Prospect Road intersection and approximately
50% De Anza Boulevard at Bollinger Road intersection are within the City of San José’s jurisdiction.
Approximately 50% of De Anza Boulevard at Prospect Road intersection is within the City of Saratoga
jurisdiction. The remaining area is within the City of Cupertino’s jurisdiction.
42
Page 2 of 11
2. CUPERTINO’S OBLIGATIONS:
CUPERTINO agrees as follows:
A. To act as the lead agency to administer the design and construction of the PROJECT.
Administration shall include preparation of specifications, contract documents and cost
estimate; notification of local business; coordination with various agencies; preparation of all
necessary environmental documents; obtaining permits; obtaining bids; awarding the
construction agreement; administering the construction agreement; providing materials control
and inspection services; and making progress payments to the contractor.
B. To promptly provide SAN JOSE and SARATOGA with awarded final specifications and
contract documents for the PROJECT.
C. To pay CUPERTINO’s share of the PROJECT cost. The Project cost is defined as the actual
amount paid to the contractor plus ten percent (10%) for CUPERTINO’s engineering,
construction and other administrative services. CUPERTINO’s share of the Cost is 100% of the
PROJECT cost for the CUPERTINO owned portion of the road.
D. CUPERTINO agrees to cooperate with SAN JOSE and SARATOGA should SAN JOSE or
SARATOGA raise any issues concerning the work in either SAN JOSE’s jurisdiction or
SARATOGA’S jurisdiction that requires correction prior to acceptance or within the warranty
period.
E. The designated project manager for CUPERTINO for the duration of the PROJECT is Roger
Lee (phone number: 408-777-3350). CUPERTINO’s project manager shall have all the
necessary authority to direct technical and professional work within the scope of the Agreement
and shall serve as the principal point of contact with SAN JOSE and SARATOGA.
F. Keep and maintain a complete copy of all records regarding costs and expenditures relating to
the project, together with a complete copy of all plans, specifications, reports, contracts and
other documents relating to the project, and the same shall be available for inspection by San
Jose and/or Saratoga at any time during usual business hours.
3. SAN JOSE’S OBLIGATION:
SAN JOSE agrees as follows:
A. To pay SAN JOSE’s share of the PROJECT cost to CUPERTINO, as defined in Section 2.C.,
up to a maximum amount of $104,560 including contingencies/change orders. Cupertino shall
not approve change orders in excess of 10% of the project cost without the consent of San Jose.
SAN JOSE’s share of the cost is 100% of the Project Cost for the SAN JOSE-owned portion of
the road. Should that amount exceed $104,560, SAN JOSE’S ability to pay above $104,560
requires appropriation by San Jose’s City Council. SAN JOSE’S share of the costs include
100% of the contractor costs for work on the SAN JOSE-owned portion of the road, plus 10%
of the amount billed by the contractor for the SAN JOSE-owned portion of the road, which will
be paid to CUPERTINO for engineering, construction, and other administrative services as
described in Section 2.C.
B. To pay its share of the PROJECT cost within forty-five (45) business days of receiving and
approving the detailed invoice from CUPERTINO, provided that the following conditions are
met:
43
Page 3 of 11
1. The PROJECT has been completed and SAN JOSE has approved the portion of the
work in its jurisdiction. Acceptance by SAN JOSE shall be made in writing to
CUPERTINO; and
2. The detailed invoice sets forth the cost of construction of all PROJECT work based on
the actual contract unit prices paid and negotiated change order(s), if any.
C. The designated project manager for SAN JOSE for the duration of the PROJECT is Frank
Farshidi (phone number: 408-794-1945). SAN JOSE’s project manager shall have all the
necessary authority to review and approve and accept technical and professional work within
the scope of the Agreement and shall serve as the principal point of contact with CUPERTINO.
SAN JOSE may request documentation of such costs, and may review the original invoices and
weight certificates or request copies of same, which shall be provided within a reasonable time.
4. SARATOGA’S OBLIGATION:
SARATOGA agrees as follows:
A. To pay SARATOGA’s share of the PROJECT cost to CUPERTINO, as defined in Section 2.C.,
up to a maximum amount of $67,127 including contingencies/change orders]. Cupertino shall
not approve change orders in excess of 10% of the project cost without the consent of Saratoga.
SARATOGA’s share of the cost is 100% of the Project Cost for the SARATOGA-owned
portion of the road. Should that amount exceed $67,127, SARATOGA’S ability to pay above
$67,127 requires appropriation by SARATOGA’s City Council. SARATOGA’s share of the
costs include 100% of the contractor costs for work on the SARATOGA-owned portion of the
road, plus 10% of the amount billed by the contractor for the SARATOGA-owned portion of
the road, which will be paid to CUPERTINO for engineering, construction, and other
administrative services as described in Section 2.C.
C. To pay its share of the PROJECT cost within forty-five (45) business days of receiving and
approving the detailed invoice from CUPERTINO, provided that the following conditions are
met:
1. The PROJECT has been completed and SARATOGA has approved the portion of the
work in its jurisdiction. Acceptance by SARATOGA shall be made in writing to
CUPERTINO; and
2. The detailed invoice sets forth the cost of construction of all PROJECT work based on
the actual contract unit prices paid and negotiated change order(s), if any.
C. The designated project manager for SARATOGA for the duration of the PROJECT is John
Cherbone (phone number: 408-868-1239). Saratoga’s project manager shall have all the
necessary authority to review and approve and accept technical and professional work within
the scope of the Agreement and shall serve as the principal point of contact with CUPERTINO.
SARATOGA may request documentation of such costs, and may review the original invoices
and weight certificates or request copies of same, which shall be provided within a reasonable
time.
44
Page 4 of 11
5. TERM OF AGREEMENT:
A. Unless otherwise modified by a written amendment to this Agreement, the term of this
Agreement shall be one (1) year from the Effective Date or until the PROJECT acceptance by
both parties and final payments of all outstanding balances.
B. Consistent with City of San José Standard Specifications, Section 7-1.23, CUPERTINO shall
cause the contractor to provide a warranty period of at least one (1) year from the acceptance
date.
6. OWNERSHIP AND MAINTENANCE:
A. Upon completion of all work under this Agreement, ownership and title to all materials,
equipment and appurtenances installed as a part of the PROJECT within the city limits of SAN
JOSE and SARATOGA will automatically be vested in SAN JOSE and SARATOGA
respectively, and all materials, equipment and appurtenances installed as a part of the PROJECT
within the city limits of CUPERTINO will be vested in CUPERTINO, and no further agreement
will be necessary to transfer ownership.
B. This Agreement does not change any authority or responsibility between CUPERTINO, SAN
JOSE, or SARATOGA with regard to maintenance, operation or further repair responsibility.
7. CONTRACTOR SHALL BE AN INDEPENDENT CONTRACTOR:
Any contractor(s) hired by any Party to perform the work included in the PROJECT shall not be an
agent or employee of any Party and will perform such work as independent contractor. All persons
employed by or contracted with such contractor(s) to furnish labor and/or materials in connection with
the work in the PROJECT shall not be employees of any Party in any respect.
8. TERMINATION:
Once CUPERTINO has awarded the construction contract for the PROJECT, the Agreement can be
terminated only upon the mutual written consent and terms acceptable to all parties.
9. NO PLEDGING OF EITHER CITY’S CREDIT:
Under no circumstances shall CUPERTINO, SAN JOSE or SARATOGA have authority or power to
pledge the credit of the other public entity or incur obligation in the name of the other public entity.
10. NO THIRD PARTY BENEFICIARY:
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party
or parties and no third party or parties shall have any claim or right of action hereunder for any cause
whatsoever.
11. AMENDMENTS:
No alternation or violation of the terms of this Agreement shall be valid unless made in writing and
signed by the parties and incorporated into this Agreement
12. NOTICES:
Notices are to be sent as follows:
45
Page 5 of 11
To SAN JOSE: Noe Veloso
Division Manager of Pavement Maintenance
City of San José
1404 Mabury Road
San Jose, CA 95133
To CUPERTINO: Roger S. Lee
Assistance Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
To SARATOGA: John Cherbone
City of Saratoga
13777 Fruitvale Avenue
Saratoga, California 95070
13. SEVERABILITY CLAUSE:
In case any one or more of the provisions contained herein shall, for any reason, be held invalid, illegal,
or unenforceable in any respect, it shall not affect the validity of the other provisions which shall remain
in full force and effect.
14. ENCROACHMENT PERMITS:
All Parties to this Agreement will cooperate and /or provide access to its consultants, engineers and
contractors for the PROJECT in the jurisdictional boundaries of each Party. Contractor shall obtain
street opening permit from SAN JOSE / SARATOGA and SAN JOSE / SARATOGA shall provide
such a permit at no cost.
15. HOLD HARMLESS/INDEMNIFICATION:
Neither of the respective Parties, their respective City Council, employees, officers, agents and assigns
shall be responsible for any damage or liability occurring by reason of anything done or omitted to be
done by the other party in connection with the PROJECT.
It is understood and agreed that pursuant to California Government Code Section 895.4, the respective
Parties shall fully indemnify and hold the others harmless from any liability imposed for injury (as
defined in Government Code Section 810.8) by reason of anything done or omitted to be done by
CUPERTINO, SAN JOSE or SARATOGA in connection with any work, authority or jurisdiction
delegated to the respective Party under this Agreement. This hold harmless and indemnification
provision shall apply to any activities, error or omission of the respective Party and/or the Party’s
officers, employees, agents, or any person or entity acting or omitting to act for or on behalf of said City
or such person or entities as are specifically authorized and empowered by the respective Party to act for
the Party. For the activities, errors, and/ or omissions of the contractor retained for the Project, each
Party shall defend, indemnify and hold harmless the other Parties to the fullest extent legally possible
for all work performed in that Party’s jurisdiction.
46
Page 6 of 11
15. CAPTIONS:
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for
convenience only and shall not be considered nor referred to for resolving questions of interpretation of
this Agreement.
16. INSURANCE REQUIREMENTS:
CUPERTINO shall require any contractor awarded a contract for any portion of the work to be done on
the Project to secure and maintain in full force and effect at all times during construction and
performance of the Project, and until said Project is accepted by all PARTIES, and any other time
periods specified in the 2015 PAVEMENT MAINTENANCE PROJECT - PHASE 1 (Project No. 2015-
22) and 2015 PAVEMENT MAINTENANCE PROJECT - PHASE 2 (Project No. 2015-24) contract
documents, bodily injury insurance, and property damage insurance, at no additional cost to either SAN
JOSE or SARATOGA, with coverage amounts, required endorsements, certificates of insurance, and
coverage verifications satisfactory and acceptable to all PARTIES. SAN JOSE and SARATOGA, their
respective City Council, commissions, officers, employees, volunteers and agents are hereby added as
additional insureds on the commercial general liability policy with respect to liability arising out of
Contractor’s work for CUPERTINO on this Project.
It is mutually understood that during the term of the construction activities on the PROJECT,
CUPERTINO will require the successful contractor to carry commercial general liability in amounts of
not less than Two Million Dollars ($2,000,000); automobile liability in an amount not less than One
Million Dollars ($1,000,000); and, a Workers’ Compensation Insurance policy with policy limits in an
amount not less than One Million Dollars ($ 1,000,000).
17. STATUTES AND LAW GOVERNING CONTRACT:
This Agreement shall be governed and construed in accordance with the statues and laws of the State of
California. CUPERTINO shall require that any contractor awarded a contract for any portion of the
work to be done on the Project shall comply with the requirements for prevailing wage under Labor
Code Section 1770, et seq.
18. WAIVER:
The Parties’ waiver of any term, condition or covenant, or breach of any term, condition or covenant
shall not be construed as a waiver of any other term, condition or covenant or breach of any other term,
condition or covenant.
19. ENTIRE AGREEMENT:
This Agreement contains the entire Agreement between CUPERTINO, SAN JOSE and SARATOGA
relating to the PROJECT. Any prior agreements, promises, negotiations, or representations not
expressly set forth in this Agreement are of no force or effect.
20. OTHER AGREEMENTS:
This Agreement shall not prevent either Party from entering into similar agreements with others. The
Parties acknowledge and accept the terms and conditions of this Agreement as evidenc ed by the
following signatures of their duly authorized representatives. It is intent of the Parties that this
Agreement shall become operative on the effective date.
47
Page 7 of 11
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following
signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become
operative on the Effective Date.
48
Page 8 of 11
CITY OF CUPERTINO, CALIFORNIA,
a chartered California municipal corporation
APPROVED AS TO FORM:
____________________________ _____________________________
CAROL KARODE DAVID BRANDT
City Attorney City Manager
ATTEST: 10300 Torre Avenue
Cupertino, CA 95014
Telephone: (408) 777-3212
____________________________ Fax Number: (408) 777-3366
GRACE SCHIMDT
City Clerk
CITY OF SAN JOSE, CALIFORNIA
200 E. Santa Clara Street
San Jose, CA 95112
Phone: (408) 277-5777
Fax: (408) 277-3131
APPROVED AS TO FORM:
_____________________________________ By: _____________________________________
Deputy City Attorney Chief of Staff, Office of the City Manager
ATTEST:
______________________________________
City Clerk, CMC
49
Page 9 of 11
CITY OF SARATOGA, CALIFORNIA
13777 Fruitvale Avenue
Saratoga, California 95070
Phone: (408) 408.868.1239
Fax: (408) 408.868.1281
APPROVED AS TO FORM:
_____________________________________ By: _____________________________________
James Lindsay
Shute, Mihaly & Weinberger LLP City Manager
ATTEST:
______________________________________
Debbie Bretschneider, Acting City Clerk
50
Page 10 of 11
EXHIBIT “A”
SCOPE OF WORK AND SCHEDULE OF PERFORMANCE
The project consists of removing and repairing approximately 500 tons of asphalt and installation of 3850
square yards of type II slurry in San Jose along with replacement of affected traffic striping and traffic
detector loops of the San Jose portion of De Anza Boulevard at Prospect Road intersection and De Anza
Boulevard at Bollinger Road intersection. The work to be performed within Saratoga will consist of
removing and replacing approximately 300 tons of asphalt in Saratoga along with replacement of affected
traffic striping and traffic detector loops of the Saratoga portion of De Anza Boulevard at Prospect Road
intersection. The project shall also include traffic control, subgrade preparation, replacing of all affected
traffic striping / loop detectors, lowering and raising manholes, water valve boxes and monument as
required. An “Agency Quantity Worksheet” is attached for reference. Approximately 25% of De Anza
Boulevard at Prospect Road intersection and approximately 50% De Anza Boulevard at Bollinger Road
intersection are within the City of San José’s jurisdiction. Approximately 50% of De Anza Boulevard at
Prospect Road intersection are within the City of Saratoga’s jurisdiction. The remaining area is within the
City of Cupertino’s jurisdiction.
SAN JOSE to provide striping/marking plan and field layout of permanent striping/markings and approve
lay out for traffic loop replacement for their portion of De Anza Boulevard at Bollinger & De Anza
Boulevard at Prospect intersections.
SARATOGA to provide striping/marking plan and approve lay out for traffic loop replacement for their
portion of De Anza Boulevard at Prospect intersection.
The work to be performed is fully described in the 2015 PAVEMENT MAINTENANCE PROJECT -
PHASE 1, (Project No. 2015-22) and 2015 PAVEMENT MAINTENANCE PROJECT - PHASE 2 (Project
No. 2015-24) contract documents.
The contract documents are herein incorporated to this Agreement by reference.
51
Page 11 of 11
AGENCY QUANTITY WORKSHEET
Description UnitUnit Cost San Jose QtySaratoga QtyCupertino QtyTotal QtyTotal CostSan Jose Cost
Saratoga
Cost Cupertino Cost
Traffic Control LS 20,000$ 5,400.00$ 3,200.00$ 11,400.00$ 5,400.00$ 3,200.00$ 11,400.00$
Hot Mix Asphalt, 1/2" Maximum, Type c TN 93$ 50129517242520 234,454$ 46,625$ 27,457$ 160,371$
Cold Plane and Remove 4" AC SY 7$ 22501325773911314 76,143$ 15,143$ 8,917$ 52,083$
Adjust Survey Cover EA 255$ 11 255$ -$ -$ 255$
Lower Manhole EA 273$ 1 23 819$ -$ 273$ 546$
Lower Cleanout / Water / Gas Valve Cover Prior to Cold Planing EA 180$ 7 9 16 2,880$ -$ 1,260$ 1,620$
Adjust Manhole Covers to Finish Grade EA 301$ 1 23 903$ -$ 301$ 602$
Adjust Cleanout / Water / Gas Valve Cover to Finish Grade EA 180$ 7 9 16 2,880$ -$ 1,260$ 1,620$
6" White (Thermo)LF 1$ 107 107 57$ -$ 57$ -$
12" White Crosswalk/Limit Line (Thermo)LF 3$ 37652210001898 5,827$ 1,154$ 1,603$ 3,070$
12" Yellow Crosswalk (Thermo)LF 3$ 0 0-$ -$ -$ -$
Striping Detail # 21 (Thermo)LF 1$ 48 3684 58$ -$ 33$ 25$
Striping Detail 38C LF 3$ 4040120$ -$ -$ 120$
Striping Detail # 39 (Thermo)LF 1$ 7070 35$ -$ -$ 35$
"STOP" Legend (Pre-formed Thermo)EA 350$ 11 350$ -$ -$ 350$
Bike Lane Symbol Left Facing (Pre-formed Thermo)EA 415$ 2 2 830$ -$ 830$ -$
Arrow Type IV (Pre-formed Thermo)EA 450$ 3 8 6 17 7,650$ 1,350$ 3,600$ 2,700$
Replace Traffic Signal Loops EA 301$ 24 16 2666 19,866$ 7,224$ 4,816$ 7,826$
TYPE III Arrow SY 170$ 1 23 510$ -$ 170$ 340$
Arrow Type VII (L) (Pre-formed Thermo)EA 1 89-$ -$ -$ -$
Striping Detail 10 LF 120 120 -$ -$ -$ -$
TYPE II Slurry (Bollinger west of De Anza)SY 2$ 3833 `27516584 11,193$ 6,517$ -$ 4,677$
Thru Arrow EA 11
4" Yellow EA 418418 -$ -$ -$ -$
Bike Lane Loop Detector EA 300$ 1 12 600$ 300$ -$ 300$
Adjust Storm Drain Grates EA 375$ 22 750$ -$ -$ 750$
Weekend Differential Pay LS 10,000$ 2,700$ 1,700$ 5,600$
TOTAL 86,413$ 55,477$ 254,290$
Total + 10% Contingency $95,054$61,025
Total + 10% Contingency + 10% Administrative Fee $104,560$67,127
52
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1089 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:9/14/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Final Map for Foothill Live/Work Project
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Draft Resolution
B - Final Map
Action ByDate Action ResultVer.
City Council10/6/20151
Subject: Final Map for Foothill Live/Work Project
AdoptResolutionNo.15-084approvingtheFinalMap(TractNo.10291)forFoothill
Live/Work Project
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
powered by Legistar™53
PUBLIC WORKS DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3354 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
Final Map for Foothill Live/Work Project
Recommended Action
Adopt Resolution No. 15-_____ approving the Final Map (Tract No. 10291) for Foothill
Live/Work Project
Description
Final Map: Tract No. 10291
Property Owner: Johnathan 786, LLC
Location: 10121 N. Foothill Boulevard
Discussion
On May 20th, 2014, the City Council approved a Tentative Map, TM-2014-01, to
subdivide a parcel into six residential lots and one common area lot located at 10121 N.
Foothill Boulevard.
As required by the Subdivision Map Act, the Final Map (Attachment B) being presented
substantially conforms to the approved tentative map. Approval of this map is an
administrative function per Subdivision Map Act Section 66458.
Subdivision improvements include: construction of sidewalk, curb and gutter,
driveway, street and pedestrian lighting, storm drain, pavement, and landscaping along
the project’s frontage on Foothill Boulevard and Silver Oak Way. Onsite storm water
improvements have been required, in conformance with the Municipal Regional Permit,
and consist of rain gardens and a flow-through planter.
Sustainability Impact
None.
Fiscal Impact
None.
___________________________________
Prepared by: Winnie Pagan, Associate Civil Engineer
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Draft Resolution
B - Final Map
54
1
RESOLUTION NO. 15-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING A FINAL MAP (TRACT NO. 10291), JOHNATHAN 786, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY,
LOCATED AT 10121 N. FOOTHILL BOULEVARD
(APN 342-32-070)
WHEREAS, the proposed Final Map substantially conforms to the approved
Tentative Map; and
WHEREAS, there has been presented to the City Council for approval and for
authorization to record the Final Map located at 10121 N. Foothill Boulevard.
NOW, THEREFORE, BE IT RESOLVED that the Final Map is hereby approved
and the City Clerk is hereby authorized to sign said Final Map.
PASSED AND ADOPTED by the City Council of the City of Cupertino, this
6th day of October, 2015, by the following vote:
Vote: Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
Grace Schmidt, City Clerk Rod Sinks, Mayor, City of Cupertino
ATTACHMENT A
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1030 Name:
Status:Type:Second Reading of
Ordinances
Agenda Ready
File created:In control:8/11/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: An Ordinance amending Section 11.32.020 of the Cupertino Municipal Code to remove
Pruneridge Avenue as a Truck Route and amending Sections 11.32.055, 11.32.070, and 11.32.080 to
Clarify Exceptions to Truck Access within the City and Adjacent to Public Schools
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Draft Ordinance
B - Redline Version of Draft Ordinance
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:AnOrdinanceamendingSection11.32.020oftheCupertinoMunicipalCodeto
removePruneridgeAvenueasaTruckRouteandamendingSections11.32.055,11.32.070,and
11.32.080toClarifyExceptionstoTruckAccesswithintheCityandAdjacenttoPublic
Schools
ConductthesecondreadingofOrdinanceNo.15-2134:“AnOrdinanceoftheCityCouncilof
theCityofCupertinoamendingSection11.32.020ofChapter11.32ofTitle11ofthe
CupertinoMunicipalCodetoremovePruneridgeAvenueasatruckrouteandamending
Sections11.32.055,11.32.070,and11.32.080toclarifyexceptionsfortruckaccesswithinthe
Cityandwithinschoolzones,”toremoveoutdatedlanguageandtoclarifywhencertaintrucks
areexemptfromtherestrictionsandlimitationsontrucktravelwithintheCityandaround
school zones
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 1
powered by Legistar™58
1
PUBLIC WORKS DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3354 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
An Ordinance Amending Section 11.32.020 of the Cupertino Municipal Code to remove
Pruneridge Avenue as a Truck Route and Amending Sections 11.32.055, 11.32.070, and
11.32.080 to Clarify Exceptions to Truck Access within the City and Adjacent to Public
Schools.
Recommended Action
Conduct the second reading of the draft ordinance: “an ordinance of the City Council of
the City of Cupertino amending section 11.32.020 of chapter 11.32 of title 11 of the
Cupertino municipal code to remove Pruneridge Avenue as a truck route and
amending sections 11.32.055, 11.32.070, and 11.32.080 to clarify exceptions for truck
access within the city and within school zones,” to remove outdated language and to
clarify when certain trucks are exempt from the restrictions and limitations on truck
travel within the City and around school zones.
Discussion
City Council heard the first reading of the ordinance on September 15, 2015. No
changes were proposed and all aspects of the proposed amendments to Cupertino
Municipal Code sections 11.32.055, 11.32.070 and 11.32.080 were approved.
This proposed Ordinance clarifies provisions related to the truck routes within the City
of Cupertino by deleting a truck route that no longer exists and clarifying exceptions to
the restrictions around school zones and truck routes.
A. Removal of Pruneridge Avenue as a designated truck route.
As part of the development of the Apple Campus II, the City of Cupertino sold
Pruneridge Avenue to the developer. The sale is now complete, the Apple campus
construction is well underway, and Pruneridge Avenue is no longer a through street.
The proposed Ordinance amends Section 11.32.020 to remove the obsolete reference to
Pruneridge Avenue as an established truck route.
B. Clarification of exceptions to restrictions around school zones and truck routes.
59
2
On April 7, 2015, the City Council adopted Cupertino Municipal Code Section 11.32.055
which places time restrictions upon trucks traveling in designated school zones.
Specifically, trucks over three tons are not allowed to travel along minor collector or
local roadways that are contiguous to and within 500 feet of the grounds of a primary
K-12 public school between the hours of 7:00 and 9:30 a.m., and between 2:00 and 4:00
p.m., Monday through Friday.
As stated in the March 3, 2015 staff report, the local access exception in Section 11.32.070
is not applicable during certain times in the school zones. Section 11.32.055 is a time
restriction, not a prohibition, and the Sheriff’s office advises that it is enforceable as
drafted. However, for ease of enforcement, staff and the Sheriff’s office recommend
that Section 11.32.055 and 11.32.070 be amended to make administrative and clarifying
changes to expressly state that the local access exception contained within Section
11.32.070 does not apply to Section 11.32.055. The proposed amendment further
clarifies the types of vehicles which are exempt from the school zone times by cross-
referencing Section 11.32.055 in Section 11.32.080.
The proposed Ordinance also clarifies other vehicles which are not prohibited during
the time restrictions. These include school buses, employer-sponsored passenger buses
traveling along established routes, and a public utility when necessary for emergency
repairs.
Section 11.32.080, exceptions to the truck traffic routes, was also clarified for
consistency. Finally, the proposed Ordinance adds an exception for an employer’s
buses which are providing transportation to the employer’s employees. These
employer-sponsored buses would be excluded from truck and school zones only when
on a direct route dropping off or picking up passengers. These proposed changes will
facilitate effective enforcement of the truck restrictions around the school zones and
throughout the City.
Sustainability Impact
There is no sustainability impact resulting from this amendment.
Fiscal Impact
There is no fiscal impact resulting from this amendment.
_____________________________________
Prepared by: David Stillman, Senior Civil Engineer
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Draft Ordinance
B – Redline Version of Draft Ordinance
60
Agenda: September 15, 2015
090615
ORDINANCE NO. 15-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AMENDING SECTION 11.32.020 OF CHAPTER
11.32 OF TITLE 11 OF THE CUPERTINO MUNICIPAL CODE
TO REMOVE PRUNERIDGE AVENUE AS A TRUCK ROUTE
AND AMENDING SECTIONS 11.32.055, 11.32.070, AND
11.32.080 TO CLARIFY EXCEPTIONS FOR TRUCK ACCESS
WITHIN THE CITY AND WITHIN SCHOOL ZONES
WHEREAS, pursuant to the provisions and requirements of the California
Environmental Quality Act of 1970, together with related State CEQA Guidelines
(collectively, "CEQA"), the City has determined that the provisions of this
Ordinance do not fall within CEQA pursuant to Sections 15060(c)(2) (the activity
will not result in a direct or reasonably foreseeable indirect physical change in
the environment) and 15060(c)(3) (the activity is not a project as defined in
Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly; and
WHEREAS, the City Council of the City of Cupertino is the decision-making
body for this Ordinance; and
WHEREAS, this Council has reviewed, considered, and confirms the CEQA
analysis above prior to taking action on this Ordinance.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 11.32.020 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.020 Routes–Established–Signs.
A. The following truck traffic routes within the City are hereby established for
the movement of any truck as defined in Section 11.32.010:
Street Limits
De Anza From the South
61
Ordinance No.
Page 2
Boulevard City Limits to the
North City
Limits, all
portions
currently or
hereafter within
the City Limits.
Foothill
Boulevard
From McClellan
Road to Junipero
Serra Freeway
(Route No. 280),
all portions
currently or
hereafter within
the City Limits.
Homestead
Road
From Stevens
Creek Freeway
(Route 85) to
Lawrence
Expressway, all
portions
currently or
hereafter within
the City Limits.
Stevens
Canyon
Road
From the South
City Limits to
McClellan Road,
all portions
currently or
hereafter within
the City Limits.
Stevens
Creek
Boulevard
From the West
City Limits to
Foothill
Boulevard and
from West Valley
Freeway (Route
62
Ordinance No.
Page 3
No. 85) to the
East City Limits,
all portions
currently or
hereafter within
the city limits.
Tantau
Avenue
From Stevens
Creek Boulevard
to Homestead
Road.
Wolfe Road
Stevens Creek
Boulevard to
Homestead
Road.
B. The City Engineer is directed to designate the above-named truck traffic
routes by the erection of appropriate approved state standard signs giving
notice to the ordinance codified in this chapter.
SECTION 2. Section 11.32.055 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.055 School Zones—Prohibited Vehicles.
A. No person shall operate, drive, or cause or permit to be operated or
driven, any truck, as defined in Section 11.32.010 of this chapter, between
the hours of 7:00 a.m. and 9:30 a.m. in the morning and the hours of 2:00
p.m. and 4:00 p.m. in the afternoon Monday through Friday, on the
following roadway segments:
(i) on any roadway which runs contiguous to and is within 500
feet of any public school grounds;
(ii) McClellan Road, between Stelling Road and Bubb Road.
B. The only vehicles which can operate during the times listed in
Section 11.32.055(a) are as follows:
(i) Emergency response vehicles;
63
Ordinance No.
Page 4
(ii) Any vehicle traveling on an arterial or major collector
avenues as defined in the City of Cupertino’s General Plan,
Chapter 5, “Mobility Element”, Figure M-2, including
DeAnza Boulevard, Homestead Road, Stevens Creek
Boulevard (east of Foothill Boulevard), Wolfe Road (north of
Stevens Creek), Bollinger Road (east of DeAnza Boulevard),
Bubb Road (north of McClellan Road), Foothill Boulevard
(north of Stevens Creek), Miller Avenue (north of Bollinger
Road), Stelling Road (north of Stevens Creek) and Tantau
(north of Stevens Creek Boulevard).
(iii) Solid waste, garbage, or recycling trucks and street sweepers
operating on their established routes;
(iv) A public utility or licensed contractor while necessarily in
use in the construction, installation, or in repair of any
public utility, within the City, but only as necessary for
emergency repair; or
(v) Passenger buses and other public transit vehicles under the
jurisdiction of the California Public Utilities Commission,
school buses, and employer-sponsored passenger buses
provided solely for the employer’s employees, so long as
these vehicles do not deviate from their established route(s).
C. The Director of Public Works is directed to designate the above-
named school zones by the erection of appropriate approved state
standard signs giving notice of the restrictions in this section.
D. When authorized signs are in place giving notice of the designated
school zones, no person shall operate, drive, or cause or permit a truck to
be operated or driven in violation of this section unless otherwise exempt
under the provisions of subsection B of this section.
SECTION 3. Section 11.32.070 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
64
Ordinance No.
Page 5
11.32.070 Exceptions–Pickup or Delivery.
For the purpose of this chapter, a “restricted street” is any street which is
neither a truck traffic route nor an unrestricted highway. This section does not
apply to the time restrictions around school zones as set forth in Section
11.32.055. Except during the times as set forth in Section 11.32.055, nothing
contained in this chapter shall prohibit the operation of any commercial vehicle
as defined in the Vehicle Code of California, or as hereafter amended, coming
from a truck traffic route or unrestricted highway having ingress or egress by
direct route to and from a restricted street when necessary for the purpose of
making pickups or deliveries of goods, wares and merchandise from or to any
building or structure located on the restricted street, or for the purpose of
delivering materials to be used in the actual and bona fide repair, alteration,
remodeling, or construction of any building or structure upon the restricted
street for which a building permit previously has been obtained.
SECTION 4. Section 11.32.080 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.080 Exceptions–Types of Vehicles.
Except as provided in Section 11.32.055, the provisions of this chapter shall not
apply to any of the following:
A. Passenger buses under the jurisdiction of the Public Utilities Commission
of California, and school buses;
B. Any authorized emergency vehicle as defined in Section 165 of the Vehicle
Code of California, or as hereafter amended;
C. Any vehicle owned, leased, operated or controlled by:
(i) The City of Cupertino,
(ii) A contractor retained to provide street sweeping within the City of
Cupertino but only while its trucks are operating on an established route
or travelling to and from an established route,
65
Ordinance No.
Page 6
(iii) A public utility or licensed contractor while necessarily in use in
the construction, installation, or in repair of any public utility, within the
City,
(iv) The holder of a franchise issued by the City for the removal of
garbage, solid waste, or recycling but only while its trucks are operating
on an established route or travelling to and from an established route; and
(v) An employer providing transportation to its employees, provided such
vehicles deviate from a truck traffic route or unrestricted highway only by
way of a direct route to and from a restricted street and only when
necessary for the purpose of picking up or dropping off passengers.
SECTION 5.
The City Clerk shall certify the 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.
SECTION 6. This ordinance shall take effect 30 days after adoption.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 15th day of September 2015, and ENACTED at a regular meeting of the City
Council of the City of Cupertino the __ day of ________ 2015, by the following
vote:
PASSED:
Vote: Members of the City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST: APPROVED:
______________________ ______________________
Grace Schmidt, City Clerk Rod Sinks, Mayor, City of Cupertino
66
Agenda: September 15, 2015
090615
ORDINANCE NO. 15-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AMENDING SECTION 11.32.020 OF CHAPTER
11.32 OF TITLE 11 OF THE CUPERTINO MUNICIPAL CODE
TO REMOVE PRUNERIDGE AVENUE AS A TRUCK ROUTE
AND AMENDING SECTIONS 11.32.055, 11.32.070, AND
11.32.080 TO CLARIFY EXCEPTIONS FOR TRUCK ACCESS
WITHIN THE CITY AND WITHIN SCHOOL ZONES
WHEREAS, pursuant to the provisions and requirements of the California
Environmental Quality Act of 1970, together with related State CEQA Guidelines
(collectively, "CEQA"), the City has determined that the provisions of this
Ordinance do not fall within CEQA pursuant to Sections 15060(c)(2) (the activity
will not result in a direct or reasonably foreseeable indirect physical change in
the environment) and 15060(c)(3) (the activity is not a project as defined in
Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly; and
WHEREAS, the City Council of the City of Cupertino is the decision-making
body for this Ordinance; and
WHEREAS, this Council has reviewed, considered, and confirms the CEQA
analysis above prior to taking action on this Ordinance.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 11.32.020 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.020 Routes–Established–Signs.
A. The following truck traffic routes within the City are hereby established for
the movement of any truck as defined in Section 11.32.010:
Street Limits
De Anza From the South
67
Ordinance No.
Page 2
Boulevard City Limits to the
North City
Limits, all
portions
currently or
hereafter within
the City Limits.
Foothill
Boulevard
From McClellan
Road to Junipero
Serra Freeway
(Route No. 280),
all portions
currently or
hereafter within
the City Limits.
Homestead
Road
From Stevens
Creek Freeway
(Route 85) to
Lawrence
Expressway, all
portions
currently or
hereafter within
the City Limits.
Stevens
Canyon
Road
From the South
City Limits to
McClellan Road,
all portions
currently or
hereafter within
the City Limits.
Stevens
Creek
Boulevard
From the West
City Limits to
Foothill
Boulevard and
from West Valley
Deleted: Pruneridge Avenue
Formatted Table
Deleted: From Wolfe Road to Tantau
Avenue.
68
Ordinance No.
Page 3
Freeway (Route
No. 85) to the
East City Limits,
all portions
currently or
hereafter within
the city limits.
Tantau
Avenue
From Stevens
Creek Boulevard
to Homestead
Road.
Wolfe Road
Stevens Creek
Boulevard to
Homestead
Road.
B. The City Engineer is directed to designate the above-named truck traffic
routes by the erection of appropriate approved state standard signs giving
notice to the ordinance codified in this chapter.
SECTION 2. Section 11.32.055 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.055 School Zones—Prohibited Vehicles.
A. No person shall operate, drive, or cause or permit to be operated or
driven, any truck, as defined in Section 11.32.010 of this chapter, between
the hours of 7:00 a.m. and 9:30 a.m. in the morning and the hours of 2:00
p.m. and 4:00 p.m. in the afternoon Monday through Friday, on the
following roadway segments:
(i) on any roadway which runs contiguous to and is within 500
feet of any public school grounds;
(ii) McClellan Road, between Stelling Road and Bubb Road.
B. The only vehicles which can operate during the times listed in
Section 11.32.055(a) are as follows:
(i) Emergency response vehicles;
Formatted: Font: Palatino Linotype
Deleted: is section
Deleted: shall not apply to the
following:
Deleted: ¶
69
Ordinance No.
Page 4
(ii) Any vehicle traveling on an arterial or major collector
avenues as defined in the City of Cupertino’s General Plan,
Chapter 5, “Mobility Element”, Figure M-2, including
DeAnza Boulevard, Homestead Road, Stevens Creek
Boulevard (east of Foothill Boulevard), Wolfe Road (north of
Stevens Creek), Bollinger Road (east of DeAnza Boulevard),
Bubb Road (north of McClellan Road), Foothill Boulevard
(north of Stevens Creek), Miller Avenue (north of Bollinger
Road), Stelling Road (north of Stevens Creek) and Tantau
(north of Stevens Creek Boulevard).
(iii) Solid waste, garbage, or recycling trucks and street sweepers
operating on their established routes;
(iv) A public utility or licensed contractor while necessarily in
use in the construction, installation, or in repair of any
public utility, within the City, but only as necessary for
emergency repair; or
(v) Passenger buses and other public transit vehicles under the
jurisdiction of the California Public Utilities Commission,
school buses, and employer sponsored passenger buses
provided solely for the employer’s employees, so long as
these vehicles do not deviate from their established route(s).
C. The Director of Public Works is directed to designate the above-
named school zones by the erection of appropriate approved state
standard signs giving notice of the restrictions in this section.
D. When authorized signs are in place giving notice of the designated
school zones, no person shall operate, drive, or cause or permit a truck to
be operated or driven in violation of this section unless otherwise exempt
under the provisions of subsection B of this section.
SECTION 3. Section 11.32.070 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.070 Exceptions–Pickup or Delivery.
Deleted: ;
Formatted: Font: Palatino Linotype
Formatted: Left, Indent: Left: 0.5",
No bullets or numbering
Formatted: Left
Deleted: or
Formatted: Font: Palatino Linotype
Formatted: Font: (Default) Palatino
Linotype, Font color: Black
Deleted: ¶
70
Ordinance No.
Page 5
For the purpose of this chapter, a “restricted street” is any street which is
neither a truck traffic route nor an unrestricted highway. This section does not
apply to the time restrictions around school zones as set forth in Section
11.32.055. Except during the times as set forth in 11.32.055, nothing contained in
this chapter shall prohibit the operation of any commercial vehicle as defined in
the Vehicle Code of California, or as hereafter amended, coming from a truck
traffic route or unrestricted highway having ingress or egress by direct route to
and from a restricted street when necessary for the purpose of making pickups or
deliveries of goods, wares and merchandise from or to any building or structure
located on the restricted street, or for the purpose of delivering materials to be
used in the actual and bona fide repair, alteration, remodeling, or construction of
any building or structure upon the restricted street for which a building permit
previously has been obtained.
SECTION 4. Section 11.32.080 of Chapter 11.32 of Title 11 of the Cupertino
Municipal Code is hereby amended to read as follows:
11.32.080 Exceptions–Types of Vehicles.
Except as provided in section 11.32.055, the provisions of this chapter shall not
apply to any of the following:
A. Passenger buses under the jurisdiction of the Public Utilities Commission
of California, and school buses;
B. Any authorized emergency vehicle as defined in Section 165 of the Vehicle
Code of California, or as hereafter amended;
C. Any vehicle owned, leased, operated or controlled by:
1. The City of Cupertino,
2. A contractor retained to provide street sweeping within the City of
Cupertino but only while its trucks are operating on an established route or
travelling to and from an established route,
3. A public utility or licensed contractor while necessarily in use in the
construction, installation, or in repair of any public utility, within the City,
Deleted: section,
Deleted: N
Deleted:
Deleted: T
Formatted: Normal, No bullets or
numbering
71
Ordinance No.
Page 6
4. The holder of a franchise issued by the City for the removal of garbage,
solid waste, or recycling but only while its trucks are operating on an established
route or travelling to and from an established route; and
5. An employer providing transportation to its employees, provided such
vehicles deviate from a truck traffic route or unrestricted highway only by way
of a direct route to and from a restricted street and only when necessary for the
purpose of picking up or dropping off passengers.
SECTION 5.
The City Clerk shall certify the 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.
SECTION 6. This ordinance shall take effect 30 days after adoption.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 15th day of September 2015, and ENACTED at a regular meeting of the City
Council of the City of Cupertino the __ day of ________ 2015, by the following
vote:
PASSED:
Vote: Members of the City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST: APPROVED:
______________________ ______________________
Grace Schmidt, City Clerk Rod Sinks, Mayor, City of Cupertino
Deleted: ,
Formatted: Font: (Default) Palatino
Linotype, Font color: Black
Formatted: Font: (Default) Palatino
Linotype, Font color: Black
Formatted: Font: (Default) Palatino
Linotype, Font color: Black
Deleted: or refuse, and
Deleted: 4. Any licensed contractor
while necessarily in the construction,
maintenance, or repair of a public works
project on which bids were opened by the
City prior to the adoption of the ordinance
codified in this chapter unless an alternate
direct route is provided substantially
within the City
Formatted: Superscript
Deleted: ___
Deleted: ________
72
Ordinance No.
Page 7
73
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1072 Name:
Status:Type:Public Hearings Agenda Ready
File created:In control:9/4/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Consideration of Lease with Verizon Wireless for a cell tower to be located on the Civic
Center Property (10300 Torre Avenue) and conduct a public hearing on an appeal of the Planning
Commission’s decision to provide Verizon with a development permit, site approval, and height
exception for the Civic Center cell tower and any actions necessary for CEQA. A. Proposed Lease
with Verizon Wireless for a cell tower to be located on the Civic Center Property (Torre Avenue),
subject to the terms of any City-issued permits; and
B. Appeal of the Planning Commission’s approval of an Architectural and Site application for a
personal wireless service facility consisting of 6 panel antennas mounted on a tree pole designed for
collocation and an enclosed base equipment station and emergency power generator; a Development
Permit to allow a personal wireless service facility consisting of 6 panel antennas mounted on an 80-
foot tall tree pole designed for collocation and an enclosed base equipment station and emergency
power generator; and a Height Exception to allow 6 panel antennas to be mounted at a height of 66
feet on an 80-foot tall tree pole, where 55 feet is allowed for a wireless communications facility at
Cupertino City Hall (Applicant(s): Jenny Blocker (Verizon); Appellant: Lei Wang; Location: 10300
Torre Ave.; APN #369-31-033)
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report - Verizon Lease
A1 - Verizon Draft Lease Agreement
A2 - Draft Resolution - Verizon Lease
Staff Report - Appeal
A - Draft Resolution - Appeal
B - PC Staff Report dated 08-25-15
C - PC Draft Meeting Minutes dated 08-25-15
D - Written Public Comments
E - PC Resolution No. 6786
F - PC Resolution No. 6787
G - PC Resolution No. 6788
H - Project Description
I - Existing & Proposed Coverage Maps
J - Height Justification Statement
K - RF Report
L - Noise Report
M - 3-D Simulation
N - Tree Pole Photo
O - Photosimulations
P - Arborist Report
Q - Alternatives Analysis
CITY OF CUPERTINO Printed on 9/30/2015Page 1 of 2
powered by Legistar™74
R - TICC Comments
S - Plan Set
T - Appeal Petition dated 09-04-15
U - Study Sesssion Minutes & Report dated 07-16-13
V - Applicant Response to Appeal
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:ConsiderationofLeasewithVerizonWirelessforacelltowertobelocatedonthe
CivicCenterProperty(10300TorreAvenue)andconductapublichearingonanappealofthe
PlanningCommission’sdecisiontoprovideVerizonwithadevelopmentpermit,siteapproval,
andheightexceptionfortheCivicCentercelltowerandanyactionsnecessaryforCEQA.A.
ProposedLeasewithVerizonWirelessforacelltowertobelocatedontheCivicCenter
Property (Torre Avenue), subject to the terms of any City-issued permits; and
B.AppealofthePlanningCommission’sapprovalofanArchitecturalandSiteapplicationfora
personalwirelessservicefacilityconsistingof6panelantennasmountedonatreepole
designedforcollocationandanenclosedbaseequipmentstationandemergencypower
generator;aDevelopmentPermittoallowapersonalwirelessservicefacilityconsistingof6
panelantennasmountedonan80-foottalltreepoledesignedforcollocationandanenclosed
baseequipmentstationandemergencypowergenerator;andaHeightExceptiontoallow6
panelantennastobemountedataheightof66feetonan80-foottalltreepole,where55feetis
allowedforawirelesscommunicationsfacilityatCupertinoCityHall(Applicant(s):Jenny
Blocker (Verizon); Appellant: Lei Wang; Location: 10300 Torre Ave.; APN #369-31-033)
A. Adopt Resolution No. 15-085 to:
1.AuthorizetheCityManagertoexecuteanAntennaGroundLeasebetweentheCityof
CupertinoandGTEMobilnetdbaVerizonforatermofupto5years,foracelltowertobe
locatedontheCivicCenterProperty,insubstantiallytheformaspresentedtoCouncil,and
subject to the terms of any City-issued permits; and
2.AuthorizetheCityManagertonegotiateandexecuteuptotwofiveyear(5-year)options
consistent with the terms of the Lease; and
B.1.ConducthearingandadoptResolutionNo.15-086denyingtheappealandupholdingthe
PlanningCommission'sdecisionperResolutions#6786,#6787ans#6788;Ifappealisdenied,
AuthorizetheCityManagerto(negotiateand)executealeaseagreementwithVerizonfor
cellular wireless service at the Civic Center
File #:15-1072,Version:1
CITY OF CUPERTINO Printed on 9/30/2015Page 2 of 2
powered by Legistar™75
1
OFFICE OF THE CITY MANAGER
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3212 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
Proposed Lease with Verizon Wireless for a cell tower to be located on the Civic Center
Property (Torre Avenue), subject to the terms of any City-issued permits.
Recommended Action
Staff recommends that Council adopt a Resolution to:
1. Authorize the City Manager to execute an Antenna Ground Lease between the City
of Cupertino and GTE Mobilnet dba Verizon for a term of up to 5 years, for a cell
tower to be located on the Civic Center Property, in substantially the form as
presented to Council, and subject to the terms of any City-issued permits; and
2. Authorize the City Manager to negotiate and execute up to two five year (5-year)
options consistent with the terms of the Lease.
Description
For more than two years the City has been negotiating with GTE Mobilnet of California Limited
Partnership dba Verizon Wireless (Verizon) and AT&T for a cell tower at the Civic Center site
located at 10300 Torre Avenue, Cupertino. AT&T eventually put the project on hold and
Verizon is proceeding as the lead on the permitting and construction of the Civic Center cell
tower. The cell tower and the lease are designed for and will accommodate colocation of a
second telecommunications firm, whether it is AT&T or another carrier in the future.
Discussion
The lease will commence on the date of approval of the building permit or 90 days after the
Council approves the Development Permit. Verizon is required to diligently pursue the building
permit. This will protect the City as Verizon will need to start paying under the lease within 90
days of Council approval even if there is a delay in Verizon’s installation plans.
The ground lease portion is about 533 square feet. The enclosed structure is about 300 square
feet. The pole is not to exceed 80’ in height. Adequate room is available for another carrier to
relocate both on the pole and on the ground. Verizon has agreed to one initial 5 year term with
two subsequent terms of 5 years each for a total of 15 years. The
City has the right of relocation at its own expense in the event that City Hall redesign
dramatically changes (see Section 2.4).
76
2
Base rent is set at $3120.00 per month. This sum is consistent with other leases in Silicon Valley
or just above current market level. The annual increase is set at 4% per year; it is calculated at a
compound rate.
As long as the antennas serve a public purpose and do not interfere with Verizon the City may
install additional antennas. The City may not install antennas with a commercial purpose.
Verizon agreed to “preapprove” one co-locator, within the terms of the lease. Thus, the second
carrier can be placed on the pole with no need to amend this lease. Subsequent co-locators
would need Verizon approval. The lease contains an indemnification provision that protects the
City. Verizon has to pay any additional taxes that the City may incur as a result of this
installation.
Sustainability Impact
No sustainability impact
Fiscal Impact
The agreement will generate at least $3120.00 per month for the next five years. Should a
subsequent co-locator wish to locate on the pole, the City would be entitled to a new ground
lease for that co-locator’s equipment, so the City should be able to obtain a second lease from the
second carrier on approximately the same terms.
_____________________________________
Prepared by: Rick Kitson, Public Affairs Director
Reviewed by: Timm Borden, Director Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
A1 - Draft Verizon Lease Agreement
A2 - Draft Resolution – Verizon Wireless
77
-i-
ANTENNA GROUND LEASE
Between THE CITY OF CUPERTINO and
GTE Mobilnet of California Limited Partnership,
a California limited partnership,
d/b/a Verizon Wireless
78
-ii-
TABLE OF CONTENTS
PAGE
ARTICLE 1 PREMISES AND IMPROVEMENTS ..............................................................1
1.1 Lease of Premises ....................................................................................................1
1.2 Improvements ..........................................................................................................1
ARTICLE 2 TERM ................................................................................................................2
2.1 Initial Term ..............................................................................................................2
2.2 Option to Extend ......................................................................................................2
2.3 Commencement Date ...............................................................................................2
2.4 Relocation of Monopole and Adjacent structures ....................................................2
ARTICLE 3 RENTAL ............................................................................................................2
3.1 Base Rent .................................................................................................................2
3.2 Annual Increase .......................................................................................................3
3.3 Transactional Costs ..................................................................................................3
3.4 Late Charge ..............................................................................................................3
3.5 Additional Consideration .........................................................................................3
ARTICLE 4 USE ....................................................................................................................3
4.1 Permitted Uses .........................................................................................................3
4.2 Access ......................................................................................................................4
4.3 Prohibited Uses ........................................................................................................4
4.4 Approval by the City and Other Agencies ...............................................................4
4.5 Additional Antenna(s) to be added by City .............................................................4
4.6 Compliance with Laws ............................................................................................5
4.7 Condition, Use of Premises......................................................................................5
4.8 Hazardous Materials ................................................................................................5
ARTICLE 5 MAINTENANCE, REPAIRS AND ALTERATIONS......................................8
5.1 General .....................................................................................................................8
5.2 Surrender ..................................................................................................................8
5.3 City’s Rights ............................................................................................................8
5.4 City Repair Obligations ...........................................................................................8
5.5 Security Measures ....................................................................................................8
5.6 Improvements ..........................................................................................................9
5.7 City Access ............................................................................................................10
5.8 Lessee Access ........................................................................................................10
5.9 Lessee Access During Security Alert ....................................................................10
ARTICLE 6 INDEMNITY AND INSURANCE .................................................................10
6.1 Indemnity ...............................................................................................................10
6.2 Waiver of Claims ...................................................................................................10
6.3 Insurance ................................................................................................................10
ARTICLE 7 DAMAGE, DESTRUCTION AND TERMINATION ....................................11
7.1 Nontermination and Nonabatement .......................................................................11
79
-iii-
7.2 Force Majeure ........................................................................................................11
7.3 Waiver ....................................................................................................................11
ARTICLE 8 TAXES .............................................................................................................11
8.1 Personal Property ...................................................................................................11
8.2 Real Property .........................................................................................................11
8.3 Definition ...............................................................................................................12
ARTICLE 9 UTILITIES .......................................................................................................12
ARTICLE 10 SIGNS ..............................................................................................................12
ARTICLE 11 ASSIGNMENT AND SUBLETTING ............................................................12
11.1 City’s Consent Required ........................................................................................12
11.2 Net Worth Requirements .......................................................................................13
11.3 No Release of Lessee .............................................................................................13
11.4 Right of First Refusal .............................................................................................13
ARTICLE 12 DEFAULTS; REMEDIES ...............................................................................13
12.1 Defaults ..................................................................................................................13
12.2 Remedies ................................................................................................................14
12.3 No Relief from Forfeiture After Default ................................................................14
ARTICLE 13 TERMINATION OF LEASE ..........................................................................14
13.1 Termination by Lessee ...........................................................................................14
13.2 Termination by City ...............................................................................................15
13.3 Condemnation of Leased Premises ........................................................................15
ARTICLE 14 CITY’S LIABILITY ........................................................................................15
ARTICLE 15 INTEREST ON PAST-DUE OBLIGATIONS ................................................16
ARTICLE 16 HOLDING OVER ...........................................................................................16
ARTICLE 17 CITY’S ACCESS.............................................................................................16
ARTICLE 18 QUIET POSSESSION .....................................................................................16
ARTICLE 19 EASEMENTS ..................................................................................................16
ARTICLE 20 GENERAL PROVISIONS ..............................................................................16
20.1 Severability ............................................................................................................16
20.2 Time of Essence .....................................................................................................16
20.3 Additional Rent ......................................................................................................17
20.4 Entire Agreement, Modification ............................................................................17
20.5 No Warranty...........................................................................................................17
20.6 Notices ...................................................................................................................17
20.7 Waivers ..................................................................................................................17
20.8 Cumulative Remedies ............................................................................................18
20.9 Choice of Law ........................................................................................................18
20.10 Condition to Effectiveness of Lease ......................................................................18
20.11 Attorneys’ Fees ......................................................................................................18
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20.12 Brokers ...................................................................................................................18
20.13 Authority ................................................................................................................18
20.14 Non-Liability of Officials and Employees of the City ...........................................18
20.15 Non-Discrimination ...............................................................................................18
20.16 Independent Contractor ..........................................................................................18
20.17 Conflict of Interest .................................................................................................18
20.18 Memorandum of Lease ..........................................................................................18
20.19 Estoppel Certificate ................................................................................................18
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ANTENNA GROUND LEASE
This Lease (“Lease”) is made and entered into as of ______________ __, 2015, by and
between the Cit y of Cupertino, California, (“City” or “Lessor”), and GTE Mobilnet of
California Limited Partnership, a California limited partnership, d/b/a Verizon Wireless
(“Lessee”).
RECITALS
The following recitals are a substantive portion of this Lease:
A. City is the owner of certain real property situated in Santa Clara County, State of
California, as more particularly described in Exhibit “A” attached and incorporated by this
reference.
B. Lessee is a limited partnership organized under the laws of the State of California
whose principal business is telecommunications.
C. Lessee requests the lease of certain real property owned by the City for the
construction, installation and operation of a cellular telephone communication facility.
D. City is willing to permit Lessee to lease the property in accordance with
the terms, conditions and covenants of this Lease.
E. Lessee acknowledges that this project will require a use permit from the City
before this Lease will be effective.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1
Premises and Improvements
1.1 Lease of Premises. City hereby leases to Lessee and Lessee leases from City for the
term, at the rental and upon all of the terms and conditions set forth, a portion of the real property
located at 10800 Torre Avenue, Cupertino, CA APN# 369-31-033, commonly known as
Cupertino Civic Center (“City Property”). Lessee shall lease approximately 533 square feet as
described in Exhibit “B” attached and incorporated herein (the “Premises”).
1.2 Improvements. The Premises shall be used by Lessee only to locate a small building of
no more than 300 square feet (“Building”), landscaping, underground cable and conduit, a
monopole tower (alternately, the “Monopole” or “antenna structure”), no higher than 80 feet,
following the grant of a height exception for the location of Lessee’s antenna
(“Improvements”). The Improvements are more particularly shown on plans, which have
been submitted for site development and use permit approvals, as required by the City. A copy
of the plans is attached and incorporated by this reference as Exhibit “C”. It is understood and
agreed that the final plan for the Improvements will be the plans approved by the Cit y through
its site development and use permit process(es).
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ARTICLE 2
Term
2.1 Initial Term. The term of this Lease shall be for a period of approximately five (5) years
beginning on the Commencement Date and terminating on the fifth anniversary of the
Commencement Date, unless terminated earlier (“Term”).
2.2 Option to Extend. Provided Lessee is not in default, either at the time of exercise or at
the time the extended Term commences, Lessee shall have the option to extend the initial Term
of this Lease for two (2) additional periods of five (5) years (“Option Period”) on the same terms,
covenants and conditions provided. City shall not unreasonable deny this extension. Lessee
shall exercise its option by giving City written notice (“Option Notice”) at least sixty (60) days,
but not more than one hundred twenty (120) days, prior to the expiration of the initial Term of
this Lease, or the successive term.
2.3 Commencement Date. The Commencement Date of this Lease shall be the first of the
month during which the earlier of the two dates listed occurs, which are: (i) the date of final
approval of any Building Permit, if required, provided that Lessee is diligently pursuing this
Building Permit after obtaining the necessary Use Permit; or (ii) ninety (90) days after the date of
final approval of the Use Permit.
2.4 Relocation of Monopole and Adjacent structures. City, on one (1) occasion, may relocate
the Premises to another location on City Property (herein referred to as the “Alternate Property”),
provided:
2.4.1 the Alternate Property is similar to the Premises in size and is compatible for
Lessee’s use in Lessee’s sole discretion;
2.4.2 City shall pay all costs incurred by Lessee for relocating Lessee’s equipment from
the Premises to a mutually agreeable site and improving the Alternate Property so that the
Alternate Property is substantially similar to the Premises, including all costs incurred to obtain
all of the certificates, permits and other approvals that may be required by any Federal, State or
Local authorities as well as any satisfactory soil boring tests which will permit Lessee use of the
Alternate Property as set forth in Section 1.2 above;
2.4.3 City shall give Lessee at least twelve (12) months written notice before requiring
Lessee to relocate;
2.4.4 Lessee must be provided advanced notice of the redevelopment process and
layout of City’s intended expansion; and
2.4.5 Lessee’s service will not be interrupted and Lessee shall be allowed if necessary
to place a temporary cell site and antenna structure on the City Property during relocation.
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ARTICLE 3
Rental
3.1 Base Rent. Commencing on the Commencement Date, Lessee shall pay to City as rent
for the Premises in advance on the first day of each calendar month of this Lease without
deduction, offset, prior notice or demand, in lawful money of the United States, the sum of
Three Thousand One Hundred Twenty Dollars ($3,120.00) (“Base Rent”). Rent shall be
provided to: City of Cupertino, Finance Department, 10300 Torre Avenue, Cupertino, CA
95014-3202. Lessor and Lessee agree and acknowledge that the initial rental payment(s) may
not actually be sent until forty-five (45) days after the Commencement Date.
3.2 Annual Increase. During the Term of this Lease, including the Option Periods, the Base
Rent shall be increased annually by 4%, beginning on January 1, 2016 and effective each
January 1st thereafter throughout the Term and any Option Period. The sum shall be adjusted
annually resulting in a compound rate of increase. For example, the Base Rent for December 1,
2015 would be Three Thousand One Hundred Twenty Dollars ($3120.00) per month and the rate
on January 1, 2016 would be Three Thousand Two Hundred Forty Four Dollars and 80 cents
($3244.80.).
3.3 Transactional Costs. Lessee shall pay to City, as additional rent, any reasonable
transactional costs, which shall include any reasonable attorneys’ fees incurred by City as a
result of the negotiation, preparation, execution and delivery of this Lease, any amendment, any
future consent of City required and the preparation and negotiation of an amendment to this
Lease (“Transactional Costs”) not to exceed Seven Thousand Five Hundred Dollars ($7,500.00)
without prior written approval of Lessee. Lessee has provided a deposit to City to cover any
transactional costs. City shall furnish Lessee with an invoice reflecting the Transactional Costs
deducted from the deposit. In the event that the deposit is exceeded or costs are incurred without
a deposit than City shall provide an invoice to Lessee and Lessee shall make full payment to City
of these costs within forty-five (45) days from the date of receipt of City’s invoice.
3.4 Late Charge. Lessee acknowledges late payment by Lessee to City of rent will cause
City to incur costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include, without limitation, processing,
accounting and late charges that may be imposed on City. If any installment of rent due from
Lessee is not received by City within ten (10) days after the date rent is due, Lessee shall pay to
City an additional sum of ten percent (10%) of the overdue rent as a late charge. This penalty
shall not be imposed for the first two payments under the Lease in order to permit Lessee to
enroll the Lease in its payment system. The parties agree this late charge represents a fair and
reasonable estimate of the costs City will incur by reason of late payment by Lessee. Acceptance
of any late charge shall not constitute a waiver of Lessee’s default with respect to the overdue
amount, nor prevent City from exercising any of the other rights and remedies available to City.
3.5 Additional Consideration. As additional consideration for City’s entering into this Lease,
Lessee agrees to pay to City the sum of Two Thousand Five Hundred Dollars ($2,500.00) upon
the earlier of: (a) sixty (60) days after full execution of this Lease by the City; or (b) issuance
of a certificate of occupancy. This amount shall be in addition to all other sums payable b y
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Lessee to City under this Lease, and shall be nonrefundable to Lessee unless the City Council
fails to approve the Lease or any requisite use permit.
ARTICLE 4
Use
4.1 Permitted Uses. Lessee shall use the Premises for installation, operation, maintenance
and use of a wireless communications facility, consisting of the equipment, improvements and
facilities and the utilities, cables and wires reasonably needed to support the operation of a
communications facility. The installation of the Improvements shall be subject to the reviews
and approvals set forth in Section 4.4. Lessee shall be solely responsible for all costs associated
with the construction, installation, maintenance and use of the Improvements.
4.2 Access. Cit y grants Lessee reasonable non-exclusive vehicular and foot access to the
Premises. Access shall be available to Lessee, Lessee’s employees and invitees during normal
business hours, except if an emergency occurs. It is anticipated, after installation of the
Improvements is completed, that reasonable access shall occur once every two (2) weeks for the
purpose of ordinary tuning of the Lessee’s equipment, appropriate maintenance of the
Improvements and the repair and replacement of communication equipment located on the
Premises. City acknowledges that off peak maintenance (non-business hours) of the site is
required approximately once per month. Lessee shall provide 24-hours’ notice to City prior to
off peak maintenance except in cases of emergency.
4.3 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted.
Lessee shall not: (a) create, cause, or permit any nuisance or waste in, on or about the Premises
or permit the Premises to be used for any unlawful; (b) do or permit anything which
unreasonably disturbs the users of the Cit y Property or the occupants of neighboring property;
provided, however, that Lessee’s use of the Property pursuant to this Lease shall not be deemed an
unreasonable interference; specifically, and without limiting the above, Lessee agrees not to cause
any unreasonable odors, noise, vibration, power emissions or other item to emanate from the
Premises; and Lessee shall not store any materials or articles of any nature outside upon any
portion of the Premises.
4.4 Approval by the City and Other Agencies. Lessee, at its sole cost and expense, may
install the Improvements, subject to Lessee’s obtaining all required permits, licenses and
approvals from the City of Cupertino as the permitting authority and not as lessor hereunder, and
any other governmental agencies having jurisdiction. Lessee shall maintain permits, licenses and
approvals in force through the term of this Lease, as may be extended. Should Lessee wish to
subsequently change the Improvements (excluding any minor modification which would not
require an amendment to the site development permit or a building permit, and which would not
materially expand or increase the Improvements or are wholly contained in Lessee’s equipment
shelter), it shall not do so without the prior approval of City and amendment of this lease and
without obtaining all required permits, licenses and approvals from the City of Cupertino as the
permitting authority and not as lessor hereunder, and any other governmental agencies with
jurisdiction. City’s approval of these modifications shall not be unreasonably withheld. If a
change in the Improvements is approved, Lessee and City shall amend Exhibit “C” to reflect the
change. Should Lessee change or expand any Improvements without the prior approval of City,
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City may require that Lessee remove the expansion at Lessee’s sole cost and expense. Lessee
shall be solely responsible for conducting any environmental review required in association with
Lessee’s use of the Premises and for all costs associated, as well as all fees, charges or other
expenses imposed by the City as the regulatory agency or other regulatory agencies arising
directly out of Lessee’s use of the Premises prior to the Lease commencement or at any time
during the term of the Lease.
4.5 Additional Antenna(s) to be added by City. Subject to the conditions set forth in Section
4.8.8 herein, City shall have the right to install additional antennas at its sole cost and expense on
the monopole provided these antennas may only be utilized for a public purpose. The location of
the antenna(s) shall be approved by Lessee. The antennas shall not interfere with any activity or
use by Lessee. In the event that City’s antenna(s) interfere with Lessee’s use, City’s antenna(s)
shall be adjusted or removed to ameliorate this interference.
4.6 Compliance with Laws. Lessee shall not do or permit anything to be done in, on the
Premises, or bring or keep anything in, on the Premises which will conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter be enacted.
4.7 Condition, Use of Premises. Except for any warranties and representations expressly set
forth herein, City makes no warranty or representation concerning the condition of the
Premises, or the fitness of the Premises for the use intended by Lessee, and disclaims any
personal knowledge, it being expressly understood by the parties that Lessee has personall y
inspected the Premises, knows its condition, finds it fit for Lessee’s intended use, accepts it as
is and has ascertained that it can be used for the limited purposes specified in Section 4.1.
4.8 Hazardous Materials.
4.8.1 Hazardous Materials on Premises. City and Lessee shall not introduce an y
Hazardous Materials (as defined below) to the Premises or the Property excluding an y
Hazardous Materials that are components of commercially available products or are typically
used, stored, or handled in Lessee’s industry or are typically stored or handled by the City,
provided that Hazardous Materials are transported, obtained, handled, stored and/or disposed of
in accordance with all federal, state and local laws, ordinances, rules, regulations or policies.
4.8.2 Hazardous Materials Defined. The term “Hazardous Material(s)” shall mean
any toxic or hazardous substance, material or waste or any pollutant or contaminant or
infectious or radioactive material, including but not limited to, those substances, materials or
wastes regulated now or in the future within the definitions of “hazardous substances,”
“hazardous waste,” “hazardous chemical substance or mixture,” “imminently hazardous
chemical substance or mixture,” “toxic substances,” “hazardous air pollutant,” “toxic pollutant”
or “solid waste” in the following statutes and regulations: (a) “CERCLA” or “Superfund” as
amended by SARA, 42 U.S.C. Secs. 9601 et seq.; (b) RCRA, 42 U.S.C. Secs. 6901 et seq.;
(c) CWA, 33 U.S.C. Secs. 1251 et seq.; (d) CAA, 42 U.S.C. Secs. 7401 et seq.; (e) TSCA,
15 U.S.C. Secs. 2601 et seq.; (f) The Refuse Act of 1899, 33 U.S.C. Secs. 407; (g) OSHA, 29
U.S.C. Secs. 651 et seq.; (h) Hazardous Materials Transportation Act, 49 U.S.C. Secs. 5101 et
seq.; (i) USDOT Table (49 CFR Sec. 172.101 App. A and amendments) or the EPA Table (40
CFR Part 302 and amendments); (j) Carpenter-Presley-Tanner Hazardous Substance Account
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Act, Cal. Health & Safety Code Secs. 25300 et seq.; (k) California Hazardous Waste Control
Act, Cal. Health & Safety Code Secs. 25100 et seq.; (l) Porter-Cologne Act, Cal. Water Code
Secs. 13000 et seq.; (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety
Code Sec. 25220 et seq.; (n) “Proposition 65,” Cal. Health and Safety Code Sec. 25249.5 et
seq.; (o) Hazardous Substances Underground Storage Tank Law, Cal. Health & Safety Code
Sec. 25280 et seq.; (p) California Hazardous Substance Act, Cal. Health & Safety Code Secs.
108100 et seq.; (q) Air Resources Law, Cal. Health & Safety Code Secs. 39000 et seq.; (r)
Hazardous Materials Release Response Plans and Inventory, Cal. Health & Safety Code Secs.
25500 et seq.; (s) TPCA, Cal. Health and Safety Code Secs. 25208 et seq.; and (t) regulations
promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in
the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall
also mean any and all other substances, materials and wastes which are, or in the future become
regulated under appl icable local, state or federal law for the protection of health or the
environment, or which are classified as hazardous or toxic substances, materials or wastes,
pollutants or contaminants, as defined, listed or regulated b y any federal, state or local law,
regulation or order or by common law decision, including, without limitation: (i)
trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated solvents; (ii) any
petroleum products or fractions thereof; (iii) asbestos; (iv) polychlorinated biphenyls; (v)
flammable explosives; (vi) urea formaldehyde; and (vii) radioactive materials and waste.
4.8.3 Hazardous Materials Indemnity. Lessee shall indemnify, defend (by counsel
reasonably acceptable to City), protect and hold Lessor harmless from and against any and all
claims, liabilities, penalties, forfeitures, losses and/or expenses, including, without limitation,
diminution in value of the Premises, damages for the loss or restriction on use of the rentable or
usable space or of any amenity of the Premises, damages arising from any adverse impact or
marketing of the Premises and sums paid in settlement of claims, response costs, cleanup costs,
site assessment costs, attorney’s fees, consultant and expert fees, judgments, administrative
rulings or orders, fines, costs of death of or injury to any person or damage to any property
whatsoever (including, without limitation, groundwater, sewer systems and atmosphere), to the
extent arising from, or caused or resulting, during the Lease Term, in whole or in part, directly or
indirectly, by the presence or discharge in, on, under or about the Premises by Lessee, Lessee’s
agents, employees, licensees or invitees acting on Lessee’s behalf or at Lessee’s direction, of
Hazardous Material, or by Lessee’s failure to comply with any laws pertaining to any Hazardous
Materials Law, whether knowingly or by strict liability. Lessee’s indemnification obligations
shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any
required or necessary Hazardous Materials management plan, investigation, repairs, cleanup or
detoxification or decontamination of the Premises, and the presence and implementation of any
closure, remedial action or other required plans for the Premises, and shall survive the expiration
of or early termination of the Term. For purposes of the indemnity, any acts or omissions of
Lessee or its employees, agents, customers, sublessees, assignees, contractors or subcontractors
of Lessee while acting on behalf of Lessee (whether or not they are negligent, intentional, willful
or unlawful) shall be strictly attributable to Lessee. Lessee’s indemnity obligations shall not
include claims, liabilities, losses, damages, costs, or other expenses arising from the negligence
or misconduct of City or City’s employees, agents, sublessees, assignees, invitees, subcontractors
or contractors.
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4.8.4 City’s Right to Perform Tests. At any time prior to the expiration of the Term,
City shall have the right to enter upon the Premises in order to conduct tests of water and soil,
which tests shall not disrupt or interfere with Lessee’s operations, and to deliver to Lessee the
results of such tests to demonstrate that levels of any Hazardous Materials in excess of
permissible levels has occurred as a result of Lessee’s use of the Premises. Lessee shall be solely
responsible for and shall indemnify, protect, defend and hold City harmless from and against all
claims, costs and liabilities including actual attorney’s fees and costs arising out of or in
connection with any removal, remediation, clean up, restoration and materials required hereunder
to return the Premises and any other property of whatever nature to their condition existing prior
to the appearance of the Hazardous Materials to the extent such presence arises out of Lessee’s
use of the Premises. The testing shall be at Lessee’s expense if City has a reasonable basis for
suspecting and confirms the presence of Hazardous Materials in the soil or surface or
groundwater in on, under, or about the Premises, which has been caused by or resulted from the
activities of Lessee, its agents, employees, contractors or invitees acting on Lessee’s behalf or at
Lessee’s direction.
4.8.5 Survival. This entire Section 4.8 of this Lease shall survive termination of the
Lease, as to any activities during the term of this Lease.
4.8.6 Termination of Lease. City shall have the right to terminate the Lease in City’s
sole and absolute discretion in the event that: (i) any use of the Premises by Lessee involves the
generation or storage, use, treatment, disposal or release of Hazardous Material in a manner or
for a purpose prohibited or regulated by any governmental agency, authority or Hazardous
Materials Laws; (ii) Lessee has been required to take remedial action in connection with
Hazardous Material contaminating the Premises, if the contamination resulted from Lessee’s
action or use of the Premises; or (iii) Lessee is subject to an enforcement order issued by any
governmental authority in connection with the release, use, disposal or storage of a Hazardous
Material on the Premises. Lessee shall have thirty (30) days after receipt of notice from City to
cure or commence cure, prior to City’s ability to exercise its rights under this Section.
4.8.7 Covenant of Non-Interference. Lessee shall be responsible for inspecting City
Property and finding adequate space at the site without moving or relocating any of City’s
facilities or equipment, or any other facility, or utility located at the City Property at the time
Lessee’s facilities are installed. Lessee’s equipment shall not cause incurable interference with
any other existing facility or antenna on the City Property as of the date of this Agreement. In
the event that Lessee’s equipment does cause incurable interference with other facilities, Lessee
shall be required to install, at its own expense, frequency filters or take other reasonable
measures to correct the problem. Lessee shall be required to coordinate with other existing
utilities located at the City Property, to ensure that Lessee’s equipment does not interfere with
the existing frequency utilized by existing utilities. Lessor shall not permit the installation or
subsequent equipment on the City Property by Lessor or a third party which interferes with
Lessee’s operations.
4.8.8 Co-location. Lessee acknowledges that it has given City prior approval that it will
lease one (1) position on Lessee’s antenna structure on the Premises to one (1) other
communications provider (the “First Other User”), subject to the First Other User’s compliance
with the conditions below. Lessee further acknowledges and approves that City shall be entitled
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to require Lessee to lease additional positions on Lessee’s antenna structure on the Premises,
subject to the conditions below. If Lessor wishes to require Lessee to lease space on Lessee’s
antenna structure on the Premises to allow a second other communications provider (the “Second
Other User”) to attach its communications equipment on the antenna structure, Lessor shall
submit a written request to Lessee listing the proposed equipment to be placed on the antenna
structure. The terms “First Other User” and “Second Other User” are collectively referred to
hereinafter as the “Other User.” Lessee shall review such request and determine the following,
including without limitation (1) whether the Other User’s proposed installation interferes or
conflicts with Lessee’s or other users’ use of the antenna structure or the Premises; (2) whether
the antenna structure can withstand the structural load of Other User’s proposed equipment; or
(3) if Other User’s proposed equipment jeopardizes Lessee’s permits or any approval for use of
the Premises. If testing or analysis, including without limitation a structural analysis,
intermodulation study, construction or zoning drawings, or any environmental testing is required,
Other User shall be responsible for the costs of such testing or analysis. Upon approval, Lessee
and Other User shall enter into a separate agreement permitting Other User to attach its approved
equipment to the antenna structure. Lessee shall have no liability of any nature to Lessor for
failure to allow Other User(s) to use Lessee’ antenna structure. Lessee shall receive 100% of the
rental for any Other Users’ use of Lessee’s antenna structure, and City shall receive 100% of the
rental, negotiated by City and such Other User for the portion of the Other User’s lease of any
City Property. All operations by Lessee shall be in compliance with all Federal Communications
Commission (“FCC”) requirements. Should City add new facilities on the City Property in the
future, Lessee will not cause measurable electronic or physical interference with City owned and
operated equipment that is related to public health and safety and is located on the City Property.
Lessee shall reasonably cooperate with current and future users of the City Property. Lessor will
not grant a lease to any party for use of the City Property if the new use would interfere with
Lessee’s operation of its communications facility. Any future lease of the Site which permits
installation of communication equipment shall be conditioned upon not interfering with Lessee’s
operation of the Premises.
4.8.9 Electromagnetic Emissions. Lessee’s operations on the Premises shall comply
with all applicable federal laws and regulations regarding electromagnetic emissions. After its
Improvements are constructed on the Premises, Lessee shall conduct all necessary tests to ensure
that its facilities are in compliance with those laws and regulations. The tests shall be conducted
by a licensed engineer, and the results shall be provided to the City.
ARTICLE 5
Maintenance, Repairs and Alterations
5.1 General. Lessee shall keep in good order, condition and repair the Premises, and the
Improvements placed on the Premises. Lessee shall keep the Premises clean and free of debris.
5.2 Surrender. Within ninety (90) days after the last day of the Term, or any Option Term if
so extended, Lessee shall surrender the Premises to City in the same condition as when received,
clean and free of debris, reasonable wear and tear. Lessee shall also remove all Improvements
and cables and wires located above ground or below ground that Lessee placed upon the
Premises, and repair any damage to the Premises by the installation, maintenance or removal of
Lessee’s Improvements and any related cables, wires or other equipment, and shall restore the
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Premises to the same conditions as when Lessee received the Premises from City, reasonable
wear and tear.
5.3 City’s Rights. If Lessee is in default, subject to City mailing or delivering notice in
accordance with Section 20.6 herein and the expiration of any applicable cure periods, City may
(but shall not be required to) enter upon the Premises, (except in the case of an emergency, in
which case no notice shall be required), to perform obligations on Lessee’s behalf and put the
Premises and/or Improvements in good order, condition and repair, and the cost, together with
interest at the maximum rate then allowable by law, shall become due and payable as additional
rent to City with Lessee’s next rental installment, provided, however, in the case of a non-
emergency, City shall notify Lessee of City’s intention to perform Lessee’s obligations ten (10)
days prior to performing any work on Lessee’s behalf. If no rental installment is due to City,
these costs shall become due and payable within thirty (30) days from the date of City’s invoice
accompanied by supporting documentation for such costs.
5.4 City Repair Obligations. City shall have no obligation to repair and maintain the
Premises nor the Improvements and facilities. Lessee expressly waives the benefit of any statute
now or hereinafter in effect which would afford Lessee the right to make repairs at City’s
expense or to terminate this Lease because of City’s failure to keep Premises in good order,
condition and repair.
5.5 Security Measures. City shall have the right to require a reasonable security system,
device, operation or plan be installed and implemented to protect the Premises or the
Improvements. Should City, in its sole discretion, require Lessee to install a security system,
Lessee agrees to bear the sole cost of any security system, device, operation or plan and the
installation and implementation. Lessee shall obtain City’s prior approval before installing or
implementing any security system, device, operation or plan. Any security and fencing depicted
in the exhibits attached hereto have been approved by City.
5.6 Improvements.
5.6.1 Lessee shall pay, when due, all claims for labor or materials furnished or alleged
to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be
secured by any mechanic or material lien against the Premises or any interest therein. Lessee
shall give City not less than ten (10) days’ notice prior to the commencement of any work on the
Premises, and City shall have the right to post notices of non-responsibility in or on the Premises.
If Lessee, in good faith, contests the validity of any lien, claim or demand, then Lessee shall, at
its sole expense, defend itself and City against it and shall pay any adverse judgment that may be
rendered before enforcement against the City. If City shall require, Lessee shall furnish to City a
surety bond satisfactory to City in an amount equal to the contested lien, claim indemnifying
City against liability for and holding the Premises free from the lien or claim. In addition, City
may require Lessee to pay City’s attorneys’ fees and costs in participating in the action if City
decides to participate.
5.6.2 Lessor shall submit to the City for the City’s approval the plans prior to
submitting the Lease to the City for the City’s approval. Before construction of any subsequent
Improvements are commenced on the Premises, and before any building materials have been
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delivered to the Premises by Lessee or agents, Lessee shall comply with the following conditions
or procure City’s written waiver of the conditions specified:
5.6.2.1 Construction Schedule. A construction schedule approved by Lessee
and the City setting forth in detail a description of the Improvements and all steps for
construction of the Improvements, and Lessee’s best estimate of the date upon which each step
shall be substantially completed is attached and incorporated herein as Exhibit “D”. A
construction schedule shall not be required for like kind replacement following after initial
installation.
5.6.2.2 Protection of Adjacent Property, Indemnity of the City. Lessee shall
protect the City Property and adjacent property against damage resulting from the performance
of work undertaken by Lessee or Lessee’s agents, employees, contractors excluding any damage
caused by gross negligence or the willful act of City, and shall indemnify the City against all
liens or liability arising out of the performance of the work or the furnishing of labor, services,
materials, supplies, equipment or power on behalf of Lessee.
5.6.2.3 Insurance. In addition to the insurance coverage otherwise required
under this Lease, Lessee shall maintain workers’ compensation insurance covering all persons
employed in connection with the construction of any Improvements, repair or maintenance
activities with respect to whom death or injury claims could be asserted against the City, Lessee
or the Premises. City may require any third party(ies) performing work at the Premises to
maintain workers’ compensation insurance as contractor’s sole cost and expense at all times
when any work is in process and shall otherwise conform to the requirements of this Lease for
insurance.
5.6.2.4 Final Inspection. Lessee shall not provide service to its customers from
the Improvements in any way without receiving a final inspection of the Improvements from the
City.
5.6.2.5 Notice of Changes in Plans. Upon completion of any Improvement,
Lessee shall give City notice of all changes in the plans and specifications made during
the course of the work and at the same time deliver to City “as built” drawings accurately
reflecting all changes, provided that no change that substantially alters the final plans last
approved by the City shall be made without the City’s prior written approval.
5.7 City Access. The City or its agents, may enter into the Project at all reasonable times
during the term of this Lease Agreement for the purpose of determining whether or not Lessee is
complying with the terms and conditions or for any other purpose incidental to rights of the City.
City shall provide Lessee with at least two (2) business days’ prior notice and shall have the
ability but not the obligation to accompany City during any such inspection.
5.8 Lessee Access. Lessee may enter into or upon the Premises during normal business
hours, Monday thru Friday from 8 a.m. to 5 p.m. upon reasonable notice to the City. In the event
of an emergency, Lessee’s access shall be 24/7. Lessee acknowledges that other lessees and
licensees also have rights to access the Premises, and that if multiple lessees or licensees request
simultaneous access, the City ma y have to delay Lessee’s access to the Premises to
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accommodate all parties. City acknowledges that off peak maintenance (non-business hours) is
required approximately once per month. Lessee shall provide 24-hours’ notice to City prior to
off peak maintenance except in cases of emergency.
5.9 Lessee Access During Security Alert. During times of high security alert by the
Homeland Security Advi sory System, Lessee must obtain City’s consent to access the Project.
ARTICLE 6
Indemnity and Insurance
6.1 Indemnity. This Lease is made upon the express condition that Lessee shall indemnify
and hold harmless the City and its officers, agents and employees against any suits, claims or
actions to the extent arising out of Lessee’s use of the Premises or from any act permitted, or any
omission to act, in or about the Premises or the City Property by Lessee or its agents, employees,
contractors or invitees, including, but not limited to, any injury or injuries to, or death or deaths
of, persons or property that may occur, or that may be alleged to have occurred from any cause
or causes whatsoever, while in, upon, about or in any way connected with the Premises during
the term of this Lease, or during any holdover tenancy thereof (except where caused solely by
the active negligence or willful misconduct of City, its employees or agents). Lessee agrees to
defend any actions, suits or claims and pay all reasonable charges of attorneys and all other costs
and expenses arising therefrom; and, if any judgment be rendered against the City or any of the
other individuals enumerated above in any action, except to the extent the judgment arises from
the negligence or willful misconduct of the City, its employees or agents, Lessee shall, at its sole
cost and expense, satisfy and discharge same.
6.2 Waiver of Claims. Lessee waives any claims against City for injury to Lessee’s business
or any loss of income, for damage to Lessee’s property, or for injury or death of any person in or
about the Premises or the City Property, from any cause whatsoever, except to the extent caused
by City’s negligence or willful misconduct.
6.3 Insurance. During the term of this Lease, Lessee shall maintain in full force and affect
the following insurance policies:
6.3.1 Commercial general liability policy (bodily injury and property damage); and
6.3.2 Comprehensive automobile liability insurance policy.
These policies shall be maintained with respect to employees and vehicles using the Property
with coverage amounts and including the required endorsements, certificates of insurance and
coverage verifications as defined in Exhibit “E” attached and incorporated by this reference.
ARTICLE 7
Damage, Destruction and Termination
7.1 Nontermination and Nonabatement. Except as provided herein, no destruction or damage
to the Premises by fire, windstorm or other casualty, whether insured or uninsured, shall entitle
Lessee to terminate this Lease, unless Premises are rendered unusable as a cell site.
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7.2 Force Majeure. Prevention, delay or stoppage due to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor, materials or reasonable substitutes, governmental
restrictions, governmental regulation, governmental controls, judicial orders, enemy, or hostile
governmental actions, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of Lessee, shall excuse the performance by Lessee for a period equal to the
prevention, delay or stoppage, except the obligations imposed with regard to rent to be paid by
Lessee pursuant to this Lease. In the event any work performed by Lessee or Lessee’s
contractor’s results in a strike, lockout, and/or labor dispute, the strike, lockout, and/or labor
dispute shall not excuse the performance by Lessee of the provisions of this Lease.
7.3 Waiver. City and Lessee waive the provisions of any statutes which relate to termination
of leases when leased property is destroyed and agree that such event shall be governed by the
terms of this Lease.
ARTICLE 8
Taxes
8.1 Personal Property. Lessee shall pay prior to delinquency all taxes, license fees and public
charges assessed or levied against Lessee or Lessee’s estate in this Lease or Lessee’s
Improvements, trade fixtures, furnishings, equipment and other personal property.
8.2 Real Property. Lessee shall pay Lessee’s share of any increased real property taxes (as
defined in Section 8.3 below) which become due and payable by Lessee. Should these taxes
become due and payable by the City then on or before the later of ten (10) days prior to the
delinquency, or three (3)days after the date on which Lessee receives a copy of the tax bill and
notice of City’s determination including documentation reasonably supporting of the
determination hereunder that the tax has increased due to this Lease and installation of Lessee’s
antenna. Lessee’s liability to pay real property taxes shall be prorated on the basis of a three
hundred sixty-five (365) day year to account for any fraction or portion of a tax year included in
the Lease term at the commencement or expiration or earlier termination of this Lease. Lessee is
not responsible for taxes related to rental income to City under this Lease. Lessee specifically
acknowledges it is familiar with Section 107.6 of the California Revenue and Taxation Code,
realizes that a possessory interest subject to property taxes may be created, agrees to pay any tax,
and waives any rights Lessee may have under Revenue and Taxation Code 107.6.
8.3 Definition. The term “real property taxes” as used herein shall mean:
8.3.1 All increased taxes, assessments, levies and other charges, general and special,
foreseen and unforeseen, now or hereafter imposed by any governmental or quasi-governmental
authorit y or special district having the direct or indirect power to tax or levy assessments, which
are levied or assessed against or with respect to (i) value, occupancy, use or possession of the
Improvements, (ii) any improvements, fixtures, equipment and other real or personal property of
Lessee that are an integral part of the Premises, (iii) use of the Improvements public utilities or
energy within the Premises;
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8.3.2 All increased charges, levies or fees imposed by reason of environmental
regulation or other governmental control of the premises and/or the Improvements, imposed due
to the Improvements installed by Lessee;
8.3.3 Intentionally omitted; and,
8.3.4 All costs and fees (including reasonable attorneys’ fees) incurred by Cit y in
contesting any increase in real propert y taxes at Lessee’s written request and in negotiating
with public authorities as to any real property taxes affecting the Premises as a result of this
Lease. If at any time during the Term, the taxation or assessment of the Improvements
prevailing as of the commencement of this Lease shall be altered, then any tax or charge,
however designated, shall be included within the meaning of the term “real property taxes.” If
any real property taxes are based upon the Improvements, then only that part of such tax that is
fairly allocable to the Improvements, as determined by City, on the basis of the assessor’s
worksheets or other available information, shall be included within the meaning of the term “real
property taxes.”
ARTICLE 9
Utilities
Lessee shall pay for all water, gas, heat, light, power, telephone and other utilities and
services supplied to the Premises, together with any taxes.
ARTICLE 10
Signs
Lessee shall not place any signs upon the Premises without prior written consent of City
except as required by law.
ARTICLE 11
Assignment and Subletting
11.1 City’s Consent Required. Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage, sublet or otherwise transfer or encumber all or any part of Lessee’s interest in
this Lease or in the Premises, without City’s prior written consent, which consent shall not be
unreasonably withheld. City shall respond to Lessee’s request for consent in a timely manner
and any attempted assignment, transfer, mortgage, encumbrance or subletting without consent
shall be void and shall constitute a breach of this Lease.
11.2 Net Worth Requirements. Notwithstanding the foregoing, Lessee may assign or sublet
the Premises, or any portion thereof, without the City’s consent, to any entity which controls, is
controlled by, or is under the common control with Lessee, or to an y entity resulting from any
merger or consolidation with Lessee, or to an y partner of Lessee or to any partnership in which
Lessee is a general partner, or to any person or entity which acquires all of the assets of Lessee
on the City Property, or to any entity which obtains a security interest in a substantial portion of
Lessee’s assets Any entity listed in this paragraph or its general partner, affiliate, or parent
company shall have a net worth of not less than Ten Million Dollars ($10,000,000) as evidenced
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by publicly available financial or investor related statements or documentation, or by a net worth
letter from an officer of a publicly-traded affiliate of Lessee.
11.3 No Release of Lessee. No subletting or assignment as approved by City shall release
Lessee of Lessee’s obligation or alter the primary liability of Lessee to pay the rent and to
perform all other obligations to be performed by Lessee hereunder. The acceptance of rent b y
City from any other person shall not be deemed to be a waiver by City of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an y assignee of Lessee or any successor of
Lessee in the performance of any of the terms hereof, City may proceed directly against Lessee
without the necessity of exhausting remedies against said assignee.
11.4 Right of First Refusal. If Lessor elects, during the Term to grant to a third party by
easement or other legal instrument an interest in and to that portion of the Property occupied by
Lessee, or a larger portion thereof, for the purpose of operating and maintaining communications
facilities or the management thereof, with or without an assignment of this Agreement to such
third party, Lessee shall have the right of first refusal to meet any bona fide offer of transfer on
the same terms and conditions of such offer. If Lessee fails to meet such bona fide offer within
thirty (30) days after written notice thereof from Lessor, Lessor may grant the easement or
interest in the Property or portion thereof to such third person in accordance with the terms and
conditions of such third party offer.
ARTICLE 12
Defaults; Remedies
12.1 Defaults. The occurrence of any one or more of the following events shall constitute a
material default or breach of this Lease by Lessee:
12.1.1 The abandonment of the Premises by Lessee as defined by Civil Code §1951.3.
12.1.2 The failure by Lessee to make an y payment of rent or any other payment required
to be made by Lessee hereunder, as and when due, where the failure shall continue for a period
of ten (10) business days after receipt of written notice from City to Lessee.
12.1.3 The failure by Lessee to observe or perform any of the covenants, conditions or
provisions of this Lease in any material respect to be observed or performed by Lessee, other
than those described in Section 12.1(B) above, where the failure shall continue for a period of
thirty (30) days after receipt of written notice from City to Lessee; provided, however, that if
the nature of Lessee’s default is that more than thirty (30) days are reasonably required for
its cure, then Lessee shall not be deemed to be in default, if Lessee commenced cure within the
thirty (30) day period and thereafter diligently prosecutes the cure to completion.
12.1.4 The making by Lessee of any general arrangement or assignment for the benefit
of creditors; Lessee’s becoming a “debtor” as defined in 11 U.S.C. §101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, it is dismissed within sixty (60)
days); the appointment of a bankruptcy trustee or receiver to take possession of all or
substantiall y all of Lessee’s assets located at or on the Premises or of Lessee’s interest in this
Lease where possession is not restored to Lessee within thirty (30) days; or the attachment,
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execution or other judicial seizure of all or substantially all of Lessee’s assets located at the
Premises or of Lessee’s interest in this Lease, where seizure is not discharged within thirty (30)
days.
12.2 Remedies. In the event of any material default or breach by Lessee, City may at any time
thereafter, following any notice required by statute, and without limiting City in the exercise of
any right or remedy which City may have by reason of default or breach:
12.2.1 Terminate Lessee’s right to possession of the Premises by any lawful means, in
which case this Lease shall terminate and Lessee shall immediately surrender possession of the
Premises and Improvements to City. In that event, City shall be entitled to recover from Lessee
all damages incurred by City by reason of Lessee’s default including, but not limited to, the cost
of recovering possession of the Premises, expenses of reletting, including if necessary, removal
of Improvements and restoration of the Premises, reasonable attorneys’ fees, the worth at the
time of the award of the unpaid rent that had been earned at the time of termination of this Lease
and the worth at the time of award of the amount by which the unpaid rent for the balance of the
term after the time of such award exceeds the amount of rental loss for the same period that
Lessee proves could be reasonably avoided.
12.2.2 Maintain Lessee’s right to possession, in which case this Lease shall continue in
effect whether or not Lessee shall have abandoned the Premises. In that event, City shall be
entitled to enforce all of City’s rights and remedies under this Lease, including the right to
recover rent as it becomes due.
12.2.3 Pursue any other remedy now or hereafter available to City under the laws or
judicial decisions of the State of California.
12.3 No Relief from Forfeiture After Default. Lessee waives all rights of redemption or relief
from forfeiture under California Code of Civil Procedure §§1174 and 1179, and any other
present or future law, in the event Lessee is evicted or City otherwise lawfully takes possession
of the Premises by reason of any default or breach of this Lease by Lessee.
ARTICLE 13
Termination of Lease
13.1 Termination by Lessee. Except as provided otherwise herein or by applicable law,
Lessee may terminate this Lease for cause upon the giving of not less than thirty (30) days
written notice to City if any of the following occur:
13.1.1 The failure by City to observe or perform any of the covenants, conditions or
provisions of this Lease in any material respect to be observed or performed by City, where the
failure shall continue for a period of thirty (30) days after written notice from Lessee to
City; provided, however, that if the nature of the City’s default is such that more than thirty (30)
days are reasonably required for its cure, then City shall not be deemed to be in default, if City
commenced to cure within a thirty (30) da y period and thereafter diligently prosecutes such cure
to completion;
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13.1.2 Lessee fails to obtain or loses any permits necessary for operation of the Premises
as a cellular telephone communications facility.
13.1.3 Lessee determines that the site is inappropriate for technological reasons, beyond
its control; including but not limited to signal interference.
13.2 Termination by City. Except as otherwise provided or by applicable law, City may
terminate this Lease for cause upon giving thirty (30) days written notice if any of the following
occur:
13.2.1 The City Council of the City of Cupertino determines through credible scientific
evidence collected with regard to the cellular telecommunications facility operated at the
Premises, that the facility is a threat to public health or safety. The City shall provide at least
30-days’ prior written notice to Lessee of the intent to revoke the permit and Lessee shall have a full
and fair opportunity to provide contradictory scientific data prior to City Council action; or
13.2.2 Lessee loses or fails to satisfy any condition of any permit required by Cit y
necessary for operation of the Premises as a cellular telephone communication facility.
13.3 Condemnation of Leased Premises. Should all or part of the Premises be taken by any
public or quasi-public agency or entity under the power of eminent domain under the term of this
lease:
13.3.1 Either City or Lessee may terminate this Lease by giving the other thirty (30)
days’ prior written notice of termination; and
13.3.2 Any damages and compensation awarded or paid because of the taking shall
belong to the City, except for amounts paid Lessee for relocation expenses or for damage to
property owned by Lessee and the value of the unexpired term of this Lease.
ARTICLE 14
City’s Liability
The term “City” as used herein, shall mean the City only while the City is the owner of
the fee title of the Premises. In the event of any transfer of title or interest, the City (and in case
of any subsequent transfer, then the grantor) shall, after the date of such transfer, be
relieved from all liability with respect to its obligations hereunder occurring after the transfer
date, provided that any funds in the hands of City at the time of transfer, in which Lessee has an
interest, shall be delivered to the City’s grantee.
ARTICLE 15
Interest on Past-Due Obligations
Except as expressly provided, any amount due City when not paid when due shall bear
interest at the lesser of ten percent (10%) per year or the maximum rate allowable by law from
the date due.
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ARTICLE 16
Holding Over
If Lessee remains in possession of the Premises or any part after the expiration of the
term or option term the occupancy shall be a tenancy from month to month with all the
obligations of this Lease applicable to Lessee and at a monthly rental obligation of 150% of the
Base Rent in effect at the time of expiration.
ARTICLE 17
City’s Access
City and City’s agents shall have the right to enter the Premises for the purpose of
showing to prospective purchasers, lenders or lessees, and making alterations, repairs,
improvements or additions to the Premises as City may deem necessary. City shall provide
Lessee with at least five (5) business days’ prior written notice and Lessee shall have the ability
but not the obligation to accompany City during any such inspection.
ARTICLE 18
Quiet Possession
Upon Lessee’s paying rent for the Premises and observing and performing all of the
covenants, conditions and provisions on Lessee’s part to be observed and performed, Lessee
shall have quiet possession of the Premises for the entire term subject to all of the provisions of
this Lease.
ARTICLE 19
Easements
City reserves to itself, the right, from time to time, to grant such easements, rights and
dedications outside of the Premises and subject to the terms of this Lease, that City deems
necessary or desirable, and to cause the recordation of parcel maps and restrictions, so long as
the easements, rights, dedications, maps and restrictions do not materially interfere with the use
of the Premises by Lessee. Lessee shall sign any of the aforementioned documents upon request
of City and failure to do so shall constitute a material breach of this Lease.
ARTICLE 20
General Provisions
20.1 Severability. The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the validity of any other provision.
20.2 Time of Essence. Time is of the essence under this Lease.
20.3 Additional Rent. Any monetary obligations of Lessee to City under the terms of this
Lease shall be deemed to be rent and all references herein to “rent” shall be deemed to include
the Base Rent and all other sums paid or payable by Lessee to City.
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20.4 Entire Agreement, Modification. This Lease contains all agreements of the parties with
respect to an y matter mentioned herein. No prior agreement or understanding shall be effective.
This Lease may be modified in writing only.
20.5 No Warranty. Except as otherwise stated in this Lease, Lessee hereby acknowledges that
neither the City nor any employees or agents of the City has made any oral or written warranties
or representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee
acknowledges that Lessee assumes all responsibility regarding the Occupational Safety and
Health Act, the legal use and adaptability of the Premises and compliance with all
applicable laws and regulations in effect during the term of this Lease.
20.6 Notices. Any notice required or permitted to be given, shall be in writing and may be
given by personal delivery or by first class mail, and if given personally or by mail, shall
be deemed sufficiently given if addressed to Lessee or to City at the address noted below:
Lessee:
GTE Mobilnet of California Limited Partnership,
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Re: De Anza Stevens Creek
City:
David Brandt
City Manager, City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
With Copy to:
Carol Korade, City Attorney
20410 Town Center Lane, Suite 210
Cupertino, CA 95014-3255
Each notice shall specify the provision pursuant to which it is given. Either party may specify a
different address or contact person. A copy of all notices required or permitted to be given to
City hereunder shall be concurrently transmitted to the party at the address as City designated
by notice to Lessee. Notice given under this section shall be deemed in compliance with
applicable statutory notice requirements, including Code of Civil Procedure §1162.
20.7 Waivers. No waiver by City or Lessee of any provision shall be deemed a waiver of
any other provision or of any subsequent breach by City or Lessee of the same or any other
provision. City’s or Lessee’s approval of any act shall not be deemed to render unnecessar y
obtaining of their consent of any subsequent act. The acceptance of rent by City shall not be a
waiver of any preceding breach by Lessee of a provision, other than the failure of Lessee to pay
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the particular rent so accepted, regardless of City’s knowledge of the breach at the time of
acceptance of rent.
20.8 Cumulative Remedies. No remedy or election under this Lease shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
20.9 Choice of Law. This Lease shall be governed by the laws of the State of California.
The language of all parts of this Lease shall be construed with its fair meaning and not strictly for
or against the City or Lessee.
20.10 Condition to Effectiveness of Lease. The approval of the City Council of City constitutes
an express condition precedent to the effectiveness of this Lease.
20.11 Attorneys’ Fees. If either party brings an action to enforce the terms or declare rights
hereunder, the prevailing party in any such action, shall be entitled to its reasonable attorneys’
fees and court costs to be paid by the other party.
20.12 Brokers. Each party represents that it is has not had dealings with any real estate broker
or finder, with respect to this lease in any manner. Each Party shall hold harmless the other part y
from all damages resulting from an y claims that may be asserted against the other party b y an y
broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
20.13 Authority. Each individual executing this Lease on behalf of Lessee and City represents
and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said
party.
20.14 Non-Liability of Officials and Employees of the City. No official or employee of
City shall be personally liable for any default or liability under this agreement.
20.15 Non-Discrimination. Lessee covenants it shall not discriminate based upon race, color,
creed, religion, sex, marital status, age, handicap, national origin or ancestry in any activity under
this lease.
20.16 Independent Contractor. It is agreed that Lessee shall act and be an independent
contractor and not an agent nor employee of City.
20.17 Conflict of Interest. Lessee shall at all times avoid conflict of interest or appearance of
conflict of interest in performance of this agreement.
20.18 Memorandum of Lease. Following execution of this Lease, either party, at its sole
expense shall be entitled to record a Memorandum of Lease in the official records of Santa Clara
County. Upon termination or expiration of this Lease, Lessee shall execute and record a
quitclaim deed.
20.19 Estoppel Certificate. Lessee shall, from time to time, upon at least thirty (30) days
receipt of prior written notice from City, execute, acknowledge and deliver to City a
statement in writing: (a) certifying this Lease is unmodified and in full force and effect, or, if
modified, stating the nature of the modification and certifying that the Lease, as modified, is in
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full force and effect, and the date to which the rental and other charges, if any, have been paid;
and, (b) acknowledging that there are not to Lessee’s knowledge, any defaults, or stating if an y
defaults are claimed, any statement may be relied upon b y an y prospective purchaser or
encumbrancer of the City Property.
[Signature page follows]
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CITY OF CUPERTINO, CALIFORNIA
APPROVED AS TO FORM:
Carol Korade David Brandt
City Attorney City Manager
ATTEST:
Grace Schmidt
City Clerk
“City”
GTE Mobilnet of California Limited Partnership,
d/b/a Verizon Wireless
By: Cellco Partnership
Its: General Partner
By:______________________________
Phillip French,
Executive Director – Network
Date: ___________________________
“Lessee”
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Exhibit A
Property
[See attached]
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Exhibit B
Premises
[See attached]
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Exhibit C
Site Plans
[See attached]
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Exhibit D
Construction Schedule
[See attached]
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Exhibit E
Insurance Requirements
Lessee shall purchase and maintain the insurance policies set forth below at its sole cost
and expense. Such policies shall be maintained for the full term of this Lease. The term “City”
shall include the dul y elected or appointed council members, commissioners, officers, agents,
employees and volunteers of the City of Cupertino, California, individually or collectively.
1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES.
On or before the commencement of the terms of this Lease, Lessee shall furnish City with
certificates showing the type, amount, class of operations covered, effective dates and dates of
expiration of insurance coverage in compliance with this Exhibit. These certificates, which do
not limit Lessee’s indemnification, shall also contain substantially the following statement:
“Should an y of the above insurance covered b y this certificate be canceled or coverage reduced
before the expiration date thereof, Lessee affording coverage shall provide thirty (30) days’
advance written notice to the City of Cupertino, “Attention: City Manager.” Endorsements
including the City as additional insured shall be submitted with the insurance certificates. The
following policies shall be maintained with insurers authorized to do business in the State of
California and shall be issued under forms of policies satisfactory to the City:
(1) Workers’ Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodil y Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $500,000 each occurrence
$1,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $2,000,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the following minimum
limits:
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence or
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Combined Single Limit: $1,000,000 each occurrence
2. SUBROGATION WAIVER:
Lessee agrees that in the event of loss due to any of the perils for which it has agreed to provide
comprehensive general and automotive liability insurance, Lessee shall look solely to its
insurance for recovery. Lessee hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Contractor or City with
respect to the services of Contractor herein, a waiver of any right to subrogation which an y
insurer of Lessee may acquire against City by virtue of the payment of any loss under the
insurance.
3. ABSENCE OF INSURANCE COVERAGE.
City may direct Lessee to immediately cease all activities with respect to this Lease if it
determines that Lessee fails to carry, in full force and effect, all insurance policies with
coverages at or above the limits specified in this Lease. Any delays or expense caused due to
stopping of work and change of insurance shall be considered Lessee’s delay and expense. At
the City’s discretion, under conditions of lapse, City may purchase appropriate insurance and
charge all costs related to such policy to Lessee.
4. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.
A Certificate of Insurance, on an Accord form, and completed coverage verification shall be
provided to Cit y b y each of Lessee’s insurance companies as evidence of the stipulated
coverages prior to commencement of this Lease, and annually thereafter for the term of this
Agreement. All of the insurance companies providing insurance for Lessee shall have, and
provide evidence of, a Best Rating Service rate of A VI or above. The Certificate of Insurance
and coverage verification and all other notices related to cancellation or non-renewal shall be
mailed to:
City Clerk
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
108
RESOLUTION NO. 15-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE
A FIVE-YEAR ANTENNA GROUND LEASE AGREEMENT WITH UP TO TWO
FIVE-YEAR OPTIONS BETWEEN THE CITY OF CUPERTINO
AND GTE MOBILENET OF CALIFORNIA LIMITED PARTNERSHIP, A
CALIFORNIA LIMITED PARTNERSHIP D/B/A VERIZON
WIRELESS FOR A PORTION OF THE CUPERTINO CIVIC CENTER.
WHEREAS, the City Council has considered a request for an Antenna Ground Lease
Agreement between the City of Cupertino and GTE Mobilnet of California Limited Partnership,
a California Limited Partnership d/b/a Verizon Wireless., for the lease of facilities located at the
Cupertino Civic Center, 10800 Torre Avenue; and
WHEREAS, the provisions, terms, and conditions of the Antenna Ground Lease
Agreement have been reviewed and approved by the City Attorney and City Manager.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby authorizes the City Manager to execute the five-year Antenna Ground Lease in the
substantially similar form as set forth in the draft Lease as presented to Council and further and
authorize the City Manager to negotiate and execute up to two five-year options consistent with
the terms of the Lease on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6th day of October 2015, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ________________________
City Clerk Mayor, City of Cupertino
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COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
Appeal of the Planning Commission’s approval of an Architectural and Site application for a
personal wireless service facility consisting of 6 panel antennas mounted on a tree pole
designed for collocation and an enclosed base equipment station and emergency power
generator; a Development Permit to allow a personal wireless service facility consisting of 6
panel antennas mounted on an 80-foot tall tree pole designed for collocation and an enclosed
base equipment station and emergency power generator; and a Height Exception to allow 6
panel antennas to be mounted at a height of 66 feet on an 80-foot tall tree pole, where 55 feet is
allowed for a wireless communications facility at Cupertino City Hall (Applicant(s): Jenny
Blocker (Verizon); Appellant: Lei Wang; Location: 10300 Torre Ave.; APN #369-31-033)
Recommended Action
Staff recommends that the City Council:
Conduct hearing and adopt Resolution No. 15-____ denying the appeal and upholding the
Planning Commission's decision per Resolutions #6786, #6787 and #6788; If appeal is denied,
authorize the City Manager to negotiate and execute a lease agreement with Verizon for cellular
wireless service at the Civic Center
Description
Appeal of the following Planning Commission Approvals:
Development Permit (DP-2014-07) to allow a personal wireless service facility, consisting of six
panel antennas mounted on an 80-foot tall tree pole, designed for collocation, with a base
equipment station and emergency power generator in a fenced enclosure at Cupertino City Hall
located at 10300 Torre Avenue.
Architectural and Site Approval (ASA-2014-10) to allow a personal wireless service facility,
consisting of six panel antennas mounted on an 80-foot tall tree pole, designed for collocation,
with a base equipment station and emergency power generator in a fenced enclosure at
Cupertino City Hall.
Height Exception (EXC-2014-12) request to allow antennas to be mounted at a height of 66 feet
on a planned 80-foot tall tree pole, where 55 feet is allowed.
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Appellant: Lei Wang
Applicant: Jenny Blocker, Complete Wireless (for Verizon Wireless)
Property Owner: City of Cupertino
Property Location: Northeast corner of 10300 Torre Avenue, APN 369-31-033
Discussion
Background
On August 25, 2015, the Planning Commission considered a proposal to develop a new Verizon
personal wireless service facility, designed for collocation, in an existing landscaped area at
Cupertino City Hall (Attachment B). Detailed discussion and testimony during the meeting can
be reviewed in the Planning Commission meeting minutes (Attachment C).
Seven residents spoke at the hearing, the primary concerns raised at the Commission meeting
(See Attachments C & D) relate to the following:
Desire for better cell phone coverage in the area;
Proximity to residences;
Explore alternate sites, including parks;
Perceived hazards of radio frequency energy of the project; and
Insufficient noticing.
After considering all of the facts of the project and public testimonies, the Planning Commission
approved this project on a 5-0 vote in accordance with the attached resolutions (Attachments E,
F & G). Documents supporting the Commission’s decisions are attached below (Attachments E
through S). The Planning Commission approval was appealed by one resident on September 4,
2015 (Attachment T).
Staff Responses to the Appeal
The appellant is an adjacent neighbor who lives in the residential development across
Rodrigues Avenue north of the project site. Her appeal points are summarized below with staff
comments in italics. The full text of the appeal points can be found in Attachment T.
1. The facility violates the Cupertino Wireless Master Plan (CWMP)
The appellant contends:
That the project does not protect community aesthetics and promote safety because the
project is not well-sited and well-designed to fit unobtrusively in the Cupertino
environment.
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The project is a new structure in a residential area, which the CWMP considers to be the
Least Preferred location for wireless service facilities. The proposed facility is bordered
in three quadrants by residences.
The appellant contends that the project violates policies in the CWMP as follows:
Policy 5-2: Only unobtrusive personal wireless service facilities shall be considered in
residential neighborhoods.
-Residential areas border the proposed facility in three quadrants. The proposed facility will
dominate the area that surrounds it, towering over buildings and vegetation.
Policy 6-1: Personal wireless service facilities should be sited to avoid visually intrusive
impacts as viewed from the public right-of-way and from residential neighborhoods.
The artificial eucalyptus tree will conflict with its surroundings, which will be a sparsely
landscaped area when the project is finished.
Policy 6-2: Personal wireless service facilities shall be appropriately scaled to fit harmoniously
with the surrounding elements of the site and neighborhood.
-The proposed tree appears at least twice the size of surrounding trees and buildings (if not
more) and thus not appropriately scaled. Many of the trees that are currently located in that
area will have to be removed for installation, further removing any cover the area currently
provides.
Policy 6-3: Personal wireless service facilities shall be compatible with their surroundings so
that their shape, size, color, material and texture blend with their surroundings.
-An 80-foot artificial eucalyptus tree will not blend with the far smaller acacia trees and one-to-
two-story buildings that surround it.
The appellant contends that the project does not follow the design guidelines of the CWMP in
that the proposed tree pole is not of a form similar to surrounding trees. The faux tree is
eucalyptus and the surrounding trees are acacia. The design guidelines also recommend that
the artificial tree should not be significantly taller than the surrounding vertical elements (i.e.
buildings, trees, structures, etc.). The proposed artificial tree is clearly in violation of this
guideline and is significantly taller than surrounding trees and structures.
Santa Clara County also has a document called the Wireless Telecommunications Facilities
Design Guidelines, which requests facilities “blend with and/or complement the color design
and/or character of the surrounding context, whether natural backdrop, building or existing
facility.” The document gives several examples of tree poles that are or are not cited properly
highlighting “the importance of blending with surroundings.” The example given of a poorly
sited tree pole notes: “The constructed “tree” bears no relationship to the size, shape and
character of surrounding physical elements.” The proposed City Hall facility is one such poorly
situated tree.
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Community wireless facility plans like those prepared by Cupertino and Santa Clara County
exist to protect neighborhoods and residences from unsightly and oversized facilities that
threaten their aesthetic and property values. Furthermore, nowhere in the various policies and
guidelines does it state that siting and design requirements can be ignored for 20-30 years as
new landscaping grows to cover and surround the 80-foot artificial tree. They all require that
such conditions exist or are put in place immediately. In these documents, all of the examples
of properly located artificial trees show them among mature, full grown trees of comparable
size to the artificial tree.
Staff Comments: The proposed wireless facility is located completely on city property at Civic Center and
the project site is bordered on two sides: north and east by residential developments. The CWMP
considers new wireless structures on non-residential land as the second most preferred location for cell
facilities. The CWMP identifies city-owned properties, including parks and city utility structures, as
viable candidates for cell site locations. Altogether, the City hosts five wireless facilities on City-owned
properties: three at the Service Center, one at Memorial Park and one on the Bollinger Road right-of-
way.
A tree-like camouflage was selected by staff for this monopole because of the environmental setting in a
civic landscaped area with mature trees, and residences located across the street and creek. The
eucalyptus tree-form was selected as it would be the most effective form (i.e. tall and dense canopy) to hide
two vertically-stacked antenna arrays, consisting of an upper array of 12, 8-foot tall antennas (AT&T)
and a lower antenna array of 6, 8-foot tall antennas (Verizon). The tree pole will have a realistic
appearance and its height of 80 feet is comparable to living eucalyptus trees which normally range from
30 to 200 feet in height. The attached photosimulations and photograph of an actual tree pole illustrate
what Verizon is proposing at City Hall (Attachments M, N, & O).
The tree pole is proposed at this height to accommodate two wireless carriers’ on the same tree pole and
provide satisfactory wireless coverage and service capacity. At 80 feet the tree pole is expected to be about
twice the height of the tallest city trees in the vicinity. Collocation of antennas on a single taller tree pole
is a design consideration intended to reduce potential obtrusive visual impacts of wireless facilities. If the
design consideration does not accomplish that design objective, then the Council should consider either:
1) two tree poles on-site of lower height, which reduces visual height, but increases the visual bulk
of the facility; or
2) Limiting the site to just one wireless carrier.
The 3-story attached housing complex to the north is already visually buffered from the proposed wireless
facility by an equally tall landscaped perimeter of mature trees in the residential common area. Still, staff
has concluded that new landscaping (trees) planted in the landscaped setback between the enclosure and
Rodrigues Avenue will help the tree pole to blend into the visual landscape from all vantage points. The
existing trees proposed for removal are shorter in stature and offer limited vegetative screening of the tree
pole. New trees that can grow to taller heights can do a better job of reducing any visual disparity in tree
heights.
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2. The facility will aesthetically damage the surrounding residential neighborhood.
The proposed wireless facility will not blend in to its surroundings and will tower over
surrounding trees and buildings, damaging the appearance of the neighborhood. The
Planning Commission defer review and approval of the landscape plan to the City Council
and the Public Works Department”--- however, landscaping is key in this proposal if it is to
“blend in” as plans require. Several of the acacia trees that were cited as providing
camouflage and cover will be removed for the installation of the facility. With drought
restrictions, we question if and when new trees will be planted. New landscaping will not
offer immediate visual relief. With technology changing at such a rapid rate, we questioned
if the facility will even be in use in 20-30 years.
Staff Comments: The proposed tree pole structure supporting the antennas is proposed at 80 feet tall.
The tree pole is cloaked with artificial branches and plastic leaves to give it a more realistic tree-like
appearance. The plastic leafing adds five feet to the overall height; otherwise, it would appear to be
tree with a flat-top. The tallest trees closest to the tree pole are blackwood acacias that are about half
the height around 40 feet tall. The tree pole is visually screened from the 3-story attached housing
project to the north by the residences’ own onsite landscape screen of mature trees upwards of 50 feet
tall.
The city trees north of the enclosure that are proposed to be removed are shorter in stature and are a
combination of blackwood acacias and Brazilian Peppers from 20-40 feet in height, which contribute,
but cannot completely screen an 80-foot tall tree pole. Staff agrees with the appellant that new
landscaping with taller trees will help the tree pole to blend better in the visual landscape. If the City
Council agrees, staff recommends consulting with the City Streets and Trees Supervisor to select
trees that grow to taller heights and are drought-tolerant. Adequate irrigation will be necessary to
establish the newly planted trees. With any potential construction and landscaping delayed until the
late Fall, the region may receive enough rainfall, in addition to planned irrigation, to help any new
trees.
The appellant questioned whether advancing wireless communications technology will render the
wireless facility obsolete in 20-30 years. If that should happen, the permit conditions of approval
require Verizon to remove any abandoned facility at its cost.
3. Alternative locations were not fully investigated.
The Alternative Site Analysis provided by Verizon Wireless notes that they were unable to
contact or reach agreements with surrounding buildings. Their efforts did not go far
enough. An Apple building is listed as a preferred location but the document notes they
were unresponsive to their form letters. Furthermore, the Cypress Hotel was rejected after
no agreements could be made with the owners. The hotel has been purchased by new
114
owners who have not yet been contacted. Lastly, much of the discussion with building
owners happened several years ago and we argue that it is worth doing another round.
Local parks such as Wilson Park were not considered, even though they have groves of tall
trees. Within City Hall property, other locations were rejected because they were not
visually pleasing and did not have enough visual cover. However, as already stated above,
the current proposed site does not have enough visual cover and will lose even more during
installation. Furthermore, the other proposed City Hall locations are farther from residences
and less in their visual site lines. It is also worth pointing out that this Alternative Site
Analysis document mentions that Verizon consulted Santa Cruz County regulations
regarding zoning, not Santa Clara County.
Staff Comments: Verizon’s Alternative Site Analysis describes the efforts a company must pursue in
order to find new cell facility locations that are technically suitable from a network, coverage and
capacity standpoint, that also must have adequate land or roof area, a willing landowner, agreeable
lease terms and meet local zoning and building regulations. Verizon’s search efforts started in
January 2011 encompassing all of the tall non-residential buildings in the vicinity before discussions
were held with City officials on alternative sites within the Civic Center property. In July 2013, the
City Council selected the project site as the preferred alternative for a City Hall cell site (Attachment
U). Staff feels the applicant has conducted a good faith effort in analyzing site alternatives to the
project site.
The suggestion of Wilson Park as an alternative site is not feasible as it is located outside of the
original and revised search rings. A site to the east closer than Wilson Park has already been rejected
by Verizon’s RF engineer for geographic reasons.
The appellant is correct in pointing out that Santa Cruz County zoning regulations are not
applicable to this analysis, staff would add that Santa Clara County zoning regulations do not apply
as well. The applicable regulations governing cell site development are those of the local jurisdiction
(Cupertino), State of California, and the U.S. government. All of the studied alternative sites
complies with Cupertino zoning from a land use standpoint.
4. Safety concerns have not been fully addressed.
Only the safety of the facility with respect to radio frequency energy emissions was
addressed. It does not discuss the safety of the facility itself, such as:
The safety of the generator.
Susceptibility to flooding. A 2005 Cupertino City study in cooperation with FEMA
indicated that the site is in or very near a flood zone.
Susceptibility to lightning strikes.
Staff Comments:
115
Generator Safety
The appellant does not elaborate on what aspects of generator safety she is concerned about. The
generator is expected to create equipment noise when it is in operation. It will only be tested during
the daytime and will be enclosed in an acoustical shelter that will limit noise to levels below City
noise standards.
The generator will be powered by a built-in diesel tank and the fuel is considered a hazardous
material. The facility and emergency power generator will be review by the Santa Clara County Fire
Department during the building permit stage to ensure the storage of any hazardous materials
complies with City ordinance regulating the storage of such materials.
The entire facility will be secured behind a locked fenced enclosure to prevent unauthorized access.
Flooding
Cupertino is a full participant in the Federal government’s flood insurance program and must restrict
and control buildings in the 100-year flood zone in compliance with federal flood regulations. In the
vicinity, the 100-year flood plain is entirely contained within the creek to the east of the project. The
project site, like City Hall, library and the surrounding residences are at the same elevation and are
outside of the 100-year flood plain and not subject to flood hazard regulations.
Lightning Strikes
Lightning strikes on tall wireless communication facilities are more of a planning concern in
southern and central states where lightning storms are a common occurrence. In such an
environment, where there are tall structures in an isolated area, a cell tower can increase the chances
of a direct lightning strike as the metal tower, like other tall structures, can provide a better
conducting path for the electricity than the surrounding air.
According to the Santa Clara County Office of Emergency Services’ website, lightning storms in the
San Francisco Bay Area are an unusual occurrence. Also the website mentions that in a long-term,
nationwide survey, California ranked last, meaning the least number of lightning incidents that
caused casualties or damage.
In the unlikely occurrence there is a lightning strike on a cell tower in Cupertino, it would damage
the equipment and the electrical charge would dissipate into the ground. The facility is unmanned, so
there is less of a risk of casualties. If lightning causes a breakage of the pole, there is a building-free,
fall zone around the tree pole equal to the height of the pole. If lightning causes a cell tower fire, the
nearest fire station is just a quarter of a mile away on Stevens Creek Boulevard.
5. Affected residents were not adequately notified.
Residents were not adequately notified. Residents were confused by the different forms of
noticing. Many also feel that a greater radius than 300-feet is affected by the facility. We ask
if ordinance 19.108.090B of the Wireless Communications Facilities Ordinance applies,
116
which requires mailed written notice of public hearings within one thousand feet of the
exterior boundary of the property.
We do feel that not enough residents understood the significance of this project and that the
additional hearing following the appeal would allow us the opportunity to get the word
out.
Staff Comments: The appellant is using an older 2009 version of the Wireless Communications
Facilities Ordinance (Cupertino Municipal Code section 19.108) that was superseded by the City
Council adoption of a reorganized zoning code in year 2011 and now the wireless facilities ordinance
falls under Municipal Code section 19.136. The August 25, 2015 Planning Commission Hearing
was fully, legally noticed under the current codes, which includes:
a legal advertisement in the Cupertino Courier published on August 14, 2015;
mailed notice to property owners within 300 feet of the civic center property at least 10 days
prior to the hearing;
posted on the City’s official notice board a week prior to the hearing;
posted on the City’s website a week prior to the hearing;
Site signage posted at two locations at City Hall: one sign along Rodrigues Avenue next to
the project, and another along Torre Avenue. Signs were posted at least 14 days prior to the
hearing.
In addition to the legal noticing, the applicant held a neighborhood meeting prior to the public
hearing on July 22, 2015. Verizon mailed meeting notices to property owners within a 300-foot
radius of the Civic Center property at least 10 days before the neighborhood meeting. Over two
hundred notices were mailed and three residents attended the neighborhood meeting. Also, temporary
story poles were erected prior to the public hearing to delineate the perimeter of the equipment
enclosure and height of the fencing.
Applicant’s Response to the Appeal
On behalf of Verizon Wireless, MacKenzie & Albritton, LLP, has prepared a written response to
the appeal petition, responding to each appeal point. In addition, the response letter includes:
1) a determination by a Verizon radio frequency engineer that the area to be serve by
the proposed wireless facility constitutes a significant gap in Verizon’s coverage;
2) an update of the alternative sites analysis, which includes a re-survey of some of the
previously evaluated sites, an evaluation of an additional site suggested by the
appellant, and a previously not considered DAS (distributed antenna system)
alternative; and
3) a legal analysis of the project based on its interpretation of federal regulations and
case law(Attachment V).
Noticing and Community Outreach
See staff comments under Appeal Point #5.
117
Environmental Assessment
The Development Permit, Architectural & Site Approval and Height Exception applications are
categorically exempt from the California Environmental Quality Act (CEQA) per section 15303
(New Construction or Conversion of Small Structures) of the CEQA Guidelines because the
project involves small accessory structures of less than 10,000 square feet in area that do not
involve the use of a significant amount of hazardous materials in an urban, developed
environment with access to utilities. The proposed facility will also not generate significant
noise or RFE emissions, which are estimated to be below city and federal safety standards
respectively.
Timeframe for Reviewing and Approving Wireless Facility Applications under Permit Streamlining Act
and 1996 Telecommunications Act
This project is subject to the Permit Streamlining Act (Government Code Section 65920 – 65964).
The City has complied with the deadlines found in the Permit Streamlining Act.
Project Received: September 8, 2014
Deemed Incomplete: September 18, 2014
Deemed Complete: June 11, 2015
City Action on Project: August 25, 2015 (Planning Commission decision to approve)
The 1996 Telecommunications Act provides that a local government shall act on any request for
the development of a personal wireless service facility within a reasonable period of time after
the request is duly filed. Originally there was no definite timetable provided, but that is no
longer the case. The Federal Communications Commission ruled that a state or local
government has 90 days to process a personal wireless service facility application requesting a
collocation, and 150 days to process all other wireless facility applications, like the subject
applications. The processing deadlines may be extended by mutual agreement of the local
agency and the applicant, which was the case with the Verizon application when it was
appealed by neighbors. This was done through a tolling agreement and a subsequent time
extension that preserved Verizon’s legal rights and extended the processing deadline.
Sustainability Impact
None.
Fiscal Impact
See lease agreement staff report on this Agenda.
_____________________________________
Prepared by: Colin Jung, Associate Planner
118
Reviewed by: Gary Chao, Assistant Community Development Director & Aarti Shrivastava,
Community Development Director/Assistant City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A. City Council Resolution
B. Planning Commission staff report dated 08/25/15
C. Planning Commission meeting minutes from 08/25/15
D. Compilation of public comments received prior and after the Commission hearing
E. Planning Commission Resolution No. 6786
F. Planning Commission Resolution No. 6787
G. Planning Commission Resolution No. 6788
H. Project Description
I. Existing & Proposed Coverage Maps
J. Complete Wireless Height Justification Statement
K. RFE Exposure Study for Verizon and AT&T project proposal at 10800 Torre Avenue,
prepared by Hammett & Edison, Consulting Engineers dated June 12, 2014.
L. Environmental Noise Analysis of De Anza Stevens Creek Cellular Facility, Cupertino,
CA, prepared by Bollard Acoustical Consultants, Inc., dated May 26, 2015.
M. 3-D computer simulation of proposed wireless facility with second generation
eucalyptus tree pole
N. Photograph of a second generation eucalyptus tree pole erected in San Luis Obispo, CA.
O. Photosimulations of tree pole from three viewpoints; Photosimulation of enclosure
fencing
P. Arborist Report for De Anza Stevens Creek Verizon Site by Foothill Associates dated
April 9, 2015
Q. Alternative Sites Analysis
R. TICC Comments
S. Plan Set
T. Appeal Petition dated September 4, 2015
U. City Council Study Session Minutes and Staff Report dated July 16, 2013
V. Applicant’s Response to Appeal Petition dated September 24, 2015 and emailed on
September 24, 2015
119
DRAFT RESOLUTION NO. 15-
A RESOLUTION OF THE CITY COUNCIL OF CUPERTINO DENYING AN APPEAL AND
UPHOLDING THE PLANNING COMMISSION’S AUGUST 25, 2015 APPROVAL OF A
DEVELOPMENT PERMIT (DP-2014-07) AND ARCHITECTURAL AND SITE APPROVAL (ASA-
2014-10) TO ALLOW A PERSONAL WIRELESS SERVICE FACILITY, CONSISTING OF SIX PANEL
ANTENNAS MOUNTED ON AN 80-FOOT TALL TREEPOLE, DESIGNED FOR COLLOCATION,
WITH A BASE EQUIPMENT STATION AND EMERGENCY POWER GENERATOR IN A FENCED
ENCLOSURE, AND A HEIGHT EXCEPTION (EXC-2014-12) TO ALLOW THE ANTENNAS TO BE
MOUNTED AT A HEIGHT OF 66 FEET ON THE PLANNED TREEPOLE AT CUPERTINO CITY
HALL LOCATED AT 10300 TORRE AVENUE, APN 369-31-033
SECTION I: PROJECT DESCRIPTION
Application No.: DP-2014-07, ASA-2014-10, EXC-2014-12
Applicant: Jenny Blocker, Complete Wireless (for Verizon Wireless)
Property Owner: City of Cupertino
Appellant: Lei Wang
Location: Northeast corner of 10300 Torre Avenue, APN 369-31-033
SECTION II: FINDINGS:
WHEREAS, the City Council of the City of Cupertino received an appeal of the Planning
Commission’s August 25, 2015 approval of a Minor Development Permit, Architectural & Site
Approval and Height Exception of a personal wireless service facility as described in Section I. of this
Resolution; and
WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of
the City of Cupertino, and the City Council has held at least one public hearing in regard to the
application; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The Development Permit, Architectural & Site Approval and Height Exception applications are
categorically exempt from the California Environmental Quality Act (CEQA) per section 15303
(New Construction or Conversion of Small Structures) of the CEQA Guidelines because the
project involves small accessory structures of less than 10,000 square feet in area that do not
involve the use of a significant amount of hazardous materials in an urban, developed
environment with access to utilities. The proposed facility will also not generate significant
noise or RFE emissions, which are estimated to be below city and federal safety standards
respectively; and
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Draft Resolution No.
Page 2
2. That after careful consideration of the maps, facts, exhibits, testimony and other evidence
submitted in this matter, the appeal is hereby denied and the Planning Commission’s August
25, 2015 decision to approve DP-2014-07, ASA-2014-10, and EXC-2014-12 is hereby upheld.
PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Cupertino, this 6th
day of October, 2015, by the following roll call vote:
Vote Members of the City Council
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
Grace Schmidt, City Clerk Rod Sinks, Mayor, City of Cupertino
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PLANNING COMMISSION STAFF REPORT
Agenda Item No. Agenda Date: August 25, 2015
Application: DP-2014-07, ASA-2014-10, & EXC-2014-12
Applicant: Complete Wireless/Verizon Wireless
Application Summary:
Development Permit (DP-2014-07) and Architectural & Site Approval (ASA-2014-10) to allow the
construction of a personal wireless service facility consisting of 6 panel antennas mounted on a new 80-
foot tall treepole designed for collocation and an enclosed base equipment station and emergency power
generator;
Height Exception to allow six panel antennas to be mounted at a height of 66 feet on a new 80-foot tall
tree pole, where 55 feet is allowed for a personal wireless service facility at Cupertino City Hall
RECOMMENDATION:
Staff recommends approval of DP-2014-07, ASA-2014-10, & EXC-2014-12 in accordance with the attached
model resolutions
BACKGROUND:
The applicant, Jenny Blocker of Complete Wireless, representing Verizon Wireless, has proposed the
construction of a personal wireless service facility, consisting of six panel antennas mounted on a new
80-foot tall treepole, a base equipment station and an emergency power generator located in an
enclosure in an existing landscape area of the Cupertino City Hall parking lot along Rodrigues Avenue
(Attachment 1). The treepole and enclosure have been sized and designed for collocation of another
wireless carrier in the near future.
The Verizon panel antennas will be mounted at a maximum height of 66’, which requires a height
exception approval to exceed the ordinance maximum 55’ antenna height requirement.
The proposed wireless facility is sited on the northeast corner of the Civic Center property with
detached single-family residential uses located to the east across from an existing Santa Clara Valley
Water District drainage channel; a parking lot to the south; City Hall building to the west; and attached
single-family residences to the north across Rodrigues Avenue.
OFFICE OF COMMUNITY DEVELOPMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org
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DP-2014-07, ASA-2014-10, Verizon Wireless Communications Facility August 25, 2015
& EXC-2014-12 At Civic Center Page 2
DISCUSSION:
Conformance with the Wireless Facilities Master Plan
The project is consistent with the Wireless Facilities Master Plan with respect to its location at Civic
Center and the design of the free-standing facility within a landscaped area.
Conformance with the Wireless Communications Facilities Ordinance
Cell Facility Feature Project Ordinance Requirement
Setback from residential property line 80 and 106 feet Minimum of 80 feet
Height of antennas 66 feet 55 feet, without a height
exception.
Project is consistent with all aspects of the Wireless Communications Facilities Ordinance except for the
height of the mounted antennas, which requires a height exception to achieve desired coverage and to
facilitate a planned collocation of another wireless carrier on the treepole.
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Proposed Verizon Wireless Facility
80’ Rodrigues Avenue
Torre Avenue
106’
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Height Exception Justification
The applicant is requesting a height exception for the mounting height of the panel antennas at
approximately 66 feet, where 55 feet is the ordinance maximum. The proposed height of the treepole is 80
feet to accommodate a collocation of future panel antennas from another wireless carrier above the
proposed Verizon installation. The Commission has granted antenna height exception requests before to
facilitate collocation of other wireless carriers on a single monopole. Staff recommends that the Planning
Commission grant the height exception by making the following three findings. Staff explanation in
(italics) follow each finding:
1. That the literal enforcement of the provisions of this chapter (19.136) will result in restrictions
inconsistent with the spirit and intent of this chapter. The purposes of this chapter are to facilitate the
development of a wireless communications infrastructure in the City for commercial, public and emergency
uses, and to protect the health, safety, welfare and aesthetic concerns of the public. Verizon desires to improve
wireless voice and data communications service and capacity in this area where indoor coverage is considered
unsatisfactory for the library, city hall, surrounding businesses and residential neighborhoods. Verizon’s
statement expressing its coverage objectives is attached (Attachment 2). In general, the extent of the wireless
coverage is expected to increase with the height of the antennas. More extensive radio coverage from a single
facility is desirable near large residential areas like the Civic Center neighborhood where there are few good
alternatives for siting wireless communication facilities. Lower panel antenna heights would reduce coverage
area and capacity of this site location.
2. That granting of an exception will not result in a condition that will be detrimental or injurious to
property or improvements in the vicinity and will not be materially detrimental to the public health,
safety or welfare. Radio frequency energy emissions and noise have been studied and found to be far below
federal safety standards and city standards respectively. The wireless facility enhances the general welfare of the
community by providing more communications infrastructure and alternatives for emergency communications.
3. That the exception to be granted will not result in a hazardous condition for pedestrian and vehicular
traffic. The project is not sited within the travel ways or sight lines of existing pedestrian and motorist routes.
Wireless Communications Coverage
Attachment 3 depicts and explains existing Verizon coverage and proposed Verizon coverage with the
proposed Civic Center wireless facility. Present Verizon service in the area (primarily the yellow areas on
the map) is characterized by the company as satisfactory for outdoor and in-vehicle cell phone usage, but
unsatisfactory when the user is located in any building. Unsatisfactory service is described by Verizon as
“interrupted and/or unclear voice service. Slow and/or interrupted data and/or internet service.” The
greatest improvement in wireless service, that is, satisfactory service in all indoor and outdoor
environments is expected to occur in the geographic area generally bounded by Stevens Creek Boulevard,
South De Anza Boulevard, Bollinger Road and Miller Avenue. A personal wireless service facility at
Civic Center is expected to provide significant improvements in wireless communications coverage for
city employees, library patrons, the emergency operations center and to the surrounding residential
neighborhoods where there are very limited alternatives for siting wireless infrastructure. Other site
alternatives to the project are discussed later in this report.
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Radio Frequency Energy (RFE) Exposure Study
Hammett & Edison, Inc., Consulting Engineers was commissioned by the applicant to evaluate the
cumulative RFE exposure of the project and the planned, future, collocated AT&T Wireless facility against
established federal safety limits for RFE exposure. The federal limits apply for continuous exposure and
provide a prudent margin of safety for all persons, regardless of age, gender, size or health. The report
dated June 12, 2014 (Attachment 4) indicates the following project and cumulative exposures at various
locations around the facility.
RFE Exposure as a Percentage of MPE (Maximum Permissible Exposure)
For the General Public
Analyzed Location Project
(Verizon)
Max. Exposure as a % of MPE
Cumulative
(Verizon + AT&T)
Max. Exposure as a % of MPE
Ground Level 2.1% 3.9%
Nearest Residence- assume
2nd Story
3.2%
Nearest Residence-3 stories,
across Rodrigues Ave.
2.4%
The Radio Frequency Energy (“RFE”) is substantially below the federal RFE exposure standard. It should
be noted that the Federal standards for Maximum Permissible Exposure also include a significant safety
factor so the total RFE exposure near the site is quite low. Lastly, federal law prohibits the City from
basing their decisions on the perceived health effects of the RFE generated. Thus, the City may not deny
this project on grounds of the perceived health risks of exposure to RFE.
Noise Study
Bollard Acoustical Consultants was commissioned to evaluate the cumulative noise exposure from the
project’s noise sources, which were the air conditioning units for the enclosed base equipment station and
the emergency power generator (Attachment 5). Since the report was prepared, the project has been
modified to eliminate the equipment shelter, which eliminates the need for the air conditioning units and
one source of project noise. The remaining noise source, the emergency power generator, will only be
tested during the day time and only used at night in the event of an emergency (power outage). The
applicable, most restrictive, daytime noise standard is 65 dBA. The attenuating effects of distance from
the noise source is calculated to reduce noise levels at the residential property line to 53-56 dBA, below
the most restrictive noise standard of 65 dBA. To achieve the desired level of noise mitigation, the
consultant recommends the generator be installed with the Level 2 Acoustic Enclosure. Staff has added a
condition to the Development Permit requiring the installment of the acoustic enclosure.
Design
The proposed design of the pole is depicted in the photosimulation (Attachment 6). This is a second
generation, faux eucalyptus tree that has a greater resemblance to a eucalyptus and will provide greater
camouflage coverage of the antennas. Attachment 7 is a photo of an existing faux eucalyptus erected in
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San Luis Obispo, CA. The cables will be housed in the poles and the six 8-foot tall panel antennas will be
concealed in the foliage. The antennas will be painted to match the foliage and covered in leaf socks to
further aid in the concealment. Photosimulations of the treepole are provided (Attachment 8) from three
views: the intersection of Torre & Rodrigues Avenues, the Community Hall, and the parking lot near the
library.
The base equipment station and emergency power generator will be concealed behind a 10.5-foot tall Ipe
wood panel fence enclosure. The tall fence is needed to effectively screen the equipment and the planned
equipment shelter for an eventual collocation. Ipe wood panel enclosures have been used to screen trash
facilities at the Biltmore Adjacency project and Main Street. A Rodrigues Avenue street view of the
enclosure is simulated in Attachment 8.
The enclosure fence abuts a couple of trees, the trash enclosure and the parking lot, which will make the
construction and maintenance of the enclosure fencing difficult. Staff has added a condition to the
development permit and architectural and site approval resolution to require at the building permit stage,
that the enclosure fencing be shifted or adjusted to provide a minimum 2 -foot setback of the enclosure
fence from the parking lot curbing and a 3-foot setback of the enclosure fence from the trash enclosure.
Tree Removal and Re-landscaping
Proposed project construction includes clearance of vegetation to allow for the pouring of a concrete
equipment pad and fencing of an enclosure, construction of a short concrete walkway, and trenching for
underground power and telephone utilities. This work will cause the removal of a number of trees that
are directly in the construction zone and probably other trees whose critical root zones will be
significantly impacted by construction. The affected trees are described below and the attached arborist
report (Attachment 9):
Tree # Species DBH*
(Inches)
Health Structure Notes
23 Blackwood Acacia 16 Fair Fair Construction in critical
root zone.
82 Brazilian Pepper 11 Good Fair-Good Construction in critical
root zone.
83 Brazilian Pepper 7 Fair Fair Construction in critical
root zone. Tree wound
85 Blackwood Acacia 3,4,6 Good Fair Construction in critical
root zone.
86 Blackwood Acacia 2,3,4,4,8 Good Fair Construction in critical
root zone.
87 Blackwood Acacia 17 Fair-Good Fair Remove. 100% in
construction zone.
88 Blackwood Acacia 12, 14 Fair-Good Fair-Poor Remove. 100% in
construction zone.
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The trees noted above are city trees and are subject to the sole discretion and disposition by the City
Tree/Right of Way Supervisor. Public review of proposed tree removal through Cupertino Municipal
Code Section 14.18 does not apply to this project. A copy of the plans and this arborist report have been
forwarded to the City Tree/Right of Way Supervisor for his review.
Standard planning conditions require trees to be replaced and construction sites to be re-landscaped.
Recently, in response to Governor Brown’s mandatory directive to cut back on water use during the
drought, the City Council directed that certain landscaped areas around City Hall, including the project
area, should not be irrigated until state mandatory restrictions on water use are lifted.
Planning staff is requesting that the Planning Commission defer review and approval of the landscape
plan to the City Council and the Public Works Department who is responsible for the planting and
maintenance of the Civic Center landscaping.
Alternative Site Analysis
Complete Wireless/Verizon Wireless considered other sites in the area before selecting the project site. To
address the inadequate, existing coverage issue and imminent capacity issue, the Applicant identified a
“search ring”, which is simply a circle on a map th at represents the geographic location within which a
new facility must be located in order to resolve the network issues. Sixteen sites inside and outside of the
search ring were evaluated over the past four years, including three alternative Civic Center locations that
were reviewed by the City Council in a study session on July 17, 2013. The sites reviewed and the
analysis are described in Attachment 10. Thirteen alternative sites were rejected by the applicant and
two alternative civic center sites were rejected by the City Council for the following reasons:
Reason for Rejecting Alternative Site # of sites
Site does not meet coverage objective due to shadowing from adjacent buildings. 2
Site does not meet coverage objective due to geographic location (distance from search ring) 4
Site is too close to an existing Verizon cell facility. 1
Acceptable site. Could not reach amenable leasing terms. 1
Acceptable site. Unresolved building security concerns. 1
Acceptable site. Non-responsive property owner. 1
Acceptable site. Lack of property owner interest in a lease. 3
Alternative Civic Center locations are more visually prominent than project site 2
Total Number of Alternative Sites Considered 15
The project site became the preferred site as the geographic location was located in the search ring, met
Verizon’s coverage/capacity objectives and there was a willing property owner.
Comments from the Technology, Information & Communications Commission (TICC)
Plans and other supporting project documentation were referred to the TICC subcommittee for review.
The TICC subcommittee member supports the proposed tree-type monopole that masks all of the
antennas and blends in with the existing foliage. Other comments from the TICC subcommittee are
summarized as follows (Staff comments are in italics):
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A clock tower type design alternative seems obtrusive and its design problematic given that new
Civic Center architecture has not been approved.
City Hall redesign plans could bring the antennas in closer proximity to City Hall in both vertical
and horizontal separation.
Need to make sure the cell tower does not impact any potential designs for City Hall with respect
to safe levels of radio frequency emissions. (Initial designs for City Hall depict a building of not more
than 2-3 stories height which represents a height range of 30 to 45 feet, which will be well below the lowest
array of antennas at 58 feet. Since most of the RF energy is projected horizontally, there should be no issue
with unsafe RF exposure. The City should commission an RF safety report during the design phase for City
Hall.)
Determine whether utility connections to offsite locations for fiber, telco and power would be
above or below ground. (The revised plans depict underground connections to existing vaults for
electrical power and telephone (Attachment 13).
Please refer to Attachment 11 for the detailed comments from TICC.
Comments from the public and neighborhood meeting
The applicant coordinated a neighborhood meeting held on July 22nd. Three neighbors attended the
meeting, which was also attended by the applicant’s RF safety engineer and City staff. One resident
asked why the project was being proposed and if it was a “done deal” since it was being proposed on
City property. The same resident had specific questions about RF emission strength and the federal
safety standards, which were answered by the RF safety engineer. Notices of Public Hearing were mailed
on August 6, 2015. All emailed and written responses received to date are attached (Attachment 12).
Environmental Assessment
The Minor Development Permit, Architectural & Site Approval and Height Exception applications are
categorically exempt from the California Environmental Quality Act (CEQA) per section 15303 (New
Construction or Conversion of Small Structures) of the CEQA Guidelines because the project involves
accessory structures of not more than 10,000 square in area in an urbanized area with full utilities. The
proposed facility will also not generate significant noise or RFE emissions, which are estimated to be
significantly below city and federal safety standards respectively.
Public Noticing & Outreach
The following table is a brief summary of the noticing done for this project:
Notice of Public Hearing, Site Notice &
Legal Ad
Agenda
Site Signage (14 days prior to the hearing)
Legal ad placed in newspaper
(at least 10 days prior to the hearing)
Notices mailed to property owners
adjacent to the project site (300 foot
radius)
Posted on the City's official notice bulletin
board (one week prior to the hearing)
Posted on the City of Cupertino’s Web site
(one week prior to the hearing)
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(10 days prior to the hearing)
Permit Streamlining Act
This project is subject to the Permit Streamlining Act (Government Code Section 65920 – 65964). The
City has complied with the deadlines found in the Permit Streamlining Act.
Project Received: September 8, 2014
Deemed Incomplete: September 18, 2014
Deemed Complete: June 11, 2015
Since this project is Categorically Exempt, the City has 60 days (until October 25, 2015) to make a
decision on the project. The Planning Commission’s decision on this project is final unless appealed
within 14 calendar days of the decision.
Prepared by: Colin Jung, Associate Planner
Reviewed by: Approved by:
Gary Chao Aarti Shrivastava
Assistant Community Development Director Assistant City Manager
ATTACHMENTS:
Attachments:
Resolution for DP-2014-07
Resolution for ASA-2014-10
Resolution for EXC-2014-12
1 - Project Description
2 – Complete Wireless Height Justification Statement
3 - Existing & Proposed Coverage Maps
4 - RFE Exposure Study for Verizon and AT&T project proposal at 10800 Torre Avenue, prepared by
Hammett & Edison, Consulting Engineers dated June 12, 2014.
5 – Environmental Noise Analysis of De Anza Stevens Creek Cellular Facility, Cupertino, CA, prepared
by Bollard Acoustical Consultants, Inc., dated May 26, 2015.
6 – 3-D computer simulation of proposed wireless facility with second generation eucalyptus treepole
7 – Photograph of a second generation eucalyptus treepole erected in San Luis Obispo, CA.
8 – Photosimulations of treepole from three viewpoints; Photosimulation of enclosure fencing
9- Arborist Report for DeAnza Stevens Creek Verizon Site by Foothill Associates dated April 9, 2015
10- Alternative Sites Analysis
11 - TICC Comments
12- Public Comments
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13 - Plan Set
G:planning/PDREPORT/pc DP reports/2015dpreports/DP-2014-07, ASA-2014-10, EXC-2014-12.docx
130
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO
PLANNING COMMISSION MEETING
DRAFT MINUTES
6:45 P.M. AUGUST 25, 2015 TUESDAY
CITY COUNCIL CHAMBERS
The regular Planning Commission meeting of August 25, 2015, was called to order at 6:45 p.m. in the
Cupertino Council Chambers, 10350 Torre Avenue, Cupertino, CA. by Chairperson Winnie Lee.
SALUTE TO THE FLAG
.
ROLL CALL
Commissioners Present: Chairperson: Winnie Lee
Vice Chairperson: Alan Takahashi
Commissioner: Geoff Paulsen
Commissioner: Margaret Gong
Commissioner: Don Sun
Staff Present: Asst. Dir. Community Development: Gary Chao
Associate Planner: Colin Jung
Asst. City Attorney: Colleen Winchester
APPROVAL OF MINUTES:
Minutes of the July 28, 2015 Planning Commission Meeting:
Com. Gong:
Requested that the first motion on Page 4 of the minutes be deleted as the motion relates to a Use
Permit that was approved in May 2015.
MOTION: Motion by Com. Gong, second by Vice Chair Takahashi, and unanimously carried
5-0-0, to approve the July 28, 2015 Planning Commission minutes as amended.
WRITTEN COMMUNICATIONS: Staff noted communications relating to the agenda item. There
was a request for postponement of the item from Albert Hoffman.
POSTPONEMENTS/REMOVAL FROM CALENDAR: Discussion of request from Albert Hoffman
to postpone agenda item. Com. Sun said he did not feel it was necessary to postpone the item because
they have had discussion about the application; the case is clear and the public has received appropriate
public notice.
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Cupertino Planning Commission August 25, 2015
2
Colin Jung:
Said the item has been noticed two times, early July the applicant sent out a neighborhood notice that
also went out to 300 ft. property owner radius of the Civic Center; neighborhood meeting was held on
July 22nd; and a second notification for the public hearing. Also there was a website notification;
posting of the notice on the noticeboard as well as the project announcement signs; also erected story
poles to show the footprint of the equipment enclosure, which has been up for over a month.
Colleen Winchester, Asst. City Attorney:
Said from a legal perspective there are two timelines that are not within the city’s control; the first is
the shot clock, the federal shot clock for purposes of determining a wireless application. The second
is the Permit Streamlining Act; the Act requires that the city act within 60 days but there doesn’t have
to be a final decision within 60 days. The federal shot clock requires that there be a final decision
within 90 days.
Com. Gong:
Recommended that the item be discussed; as the letter requesting the postponement appeared to be
due to the inconvenience of the requestor; and she felt it was disrespectful to the people who made
time to attend the hearing. No other Commissioners objected.
Motion: Motion by Com. Gong, seconded by Com. Paulsen, and unanimously carried 5-0-0 to
not postpone the application as requested by Mr. Hoffman.
ORAL COMMUNICATIONS: None (Art Cohen spoke later in the meeting when this item was
closed) He did not conclude his speech.
CONSENT CALENDAR: None
PUBLIC HEARING:
2. DP-2014-07, ASA-2014-10, EXC-2014-12 Development Permit (DP-2014-07) and Architectural &
Complete Wireless/Verizon Wireless Site Approval (ASA-2014-10) to allow the construction
Location: 10300 Torre Ave. of a personal wireless service facility consisting of 6
panel antennas mounted on a new 80-foot tall tree pole
designed for collocation and an enclosed base equipment
station and emergency power generator; Height
Exception (EXC-014-12) to allow six panel antennas to
be mounted at a height of 66 feet on a new 80-foot tall
tree pole, where 55 feet is allowed for a personal
wireless service facility at Cupertino City Hall.
Colin Jung, Associate Planner, presented the staff report:
Reviewed the application for Development Permit, Architectural & Site Approval and Height
Exception for a personal wireless service facility being proposed by Jenny Blocker representing
Verizon Wireless, located in the northeast corner of the Civic Center property; the facility is for 6
panel antennas on a tree pole designed for collocation with another wireless carrier that would be able
to use the tree pole to mount his antennas and there would be space in the enclosure for its own
equipment. The other application is AT&T Wireless; however, they are not ready to proceed with
their application at the present time.
He reviewed the project site as outlined in the Power Point presentation; in conformance with City
rules; Height exception Findings, Parts 1 and 2.
He reviewed the justification for the height exceptions as outlined in the staff report. The height
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Cupertino Planning Commission August 25, 2015
3
exception is being requested to achieve the desired coverage for this area both coverage and capacity
for wireless communications, and also to facilitate a future collocation by AT&T above the Verizon
antennas. In order to grant the height exception there are findings that need to be made. The first
finding is that the intent of the ordinance be fulfilled; which is to facilitate the development of a
wireless communications infrastructure for the City that respects the public’s health, safety, welfare
and aesthetic concerns.
Verizon desires to improve particularly the in-building coverage for the Civic Center area and the
surrounding area which is between Stevens Creek Blvd., DeAnza Blvd., Miller Ave., and Bollinger
Road to improve the in-building coverage which is currently unsatisfactory for local neighbors,
businesses, or emergency responders.
The emergency center is located at City Hall and emergency responders do not have good cell phone
communications unless they go outside the building, as well as Library and City Hall users. What
staff found was higher antennas will provide better coverage in capacity and is in general a preferred
thing to have especially if you are located in an area that is primarily residential where siting options
are few or undesirable. A second finding would be that it would not be detrimental to public health,
safety or welfare. Last finding would be that there are no hazardous conditions for pedestrians or
vehicular traffic and this facility is located in an area which doesn’t have any pedestrian ways or
obstructing a public right-of-way.
He reviewed a map showing Verizon’s existing and proposed coverage. Also reviewed the noise and
RF energy studies.
The design and landscaping was reviewed. The tree pole was chosen to screen the antennas from the
two wireless carriers; upgraded fence enclosure will screen the equipment; and 7 trees will likely need
to be removed. City Council and Public Works will be responsible for decisions on planting of trees
because of the California drought issues. He reviewed photo simulations showing the existing and
proposed views of the tree poles. He also discussed other areas and facilities that were considered for
sites and reasons they were rejected by City Council.
He reviewed comments from various commissions and neighborhood and public meetings; comments
summarized in staff report.
Staff recommends approval of both the Development Permit and Architectural and Site Approval for
the proposed personal wireless service facility per the draft resolutions in the staff report. Also
recommends approval of the Height Exception to allow the applicant to mount the antennas at a
height of 66 feet on the 80-foot tall tree pole per the draft resolution.
Said the decision to use eucalyptus trees was made earlier once they had an idea of what they were
proposing. A facility such as this where there are two rows of antennas both of them as shown on
diagrams, 8 ft. in length, is difficult to camouflage with a pine tree. Using pine trees as camouflage
for such large antennas was unsatisfactory and they have had success with eucalyptus trees which
were put in at the Forum which is a newer tree pole built last couple of years by AT&T. The Forum
had a grand opening for their new tree pole and the councilmembers were invited to look at them.
Com. Gong:
Said she wanted to clarify that the RF report states it is less than 4%, 3% of the maximum permissible
exposure for both antennas Verizon and the proposed AT&T; there won’t be a doubling of RF
exposure. She sad that the selection of the second generation, the most current eucalyptus is far
superior for camouflaging over the pine which appears to be inconsistent with the neighborhood trees.
Colin Jung:
The original wireless communications ordinance was a revision of an antenna ordinance that was
already on the city’s books for a long time and that antenna ordinance applied to ham radio antennas.
The height of the antennas was a compromise position between ham radio operators and the City of
Cupertino as a height that would meet their needs in terms of their practice avocation using ham
radios and the city’s concerns over height limits. That is where the 55 feet came from; it does not
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Cupertino Planning Commission August 25, 2015
4
relate to personal wire service technology. Relative to the heights of other Verizon facilities he
referred to the map of proposed coverage and pointed out existing facilities. Said he did not have the
specific information about the heights, but said the Verizon facility is on the Apple building.
Vice Chair Takahashi:
Said the RF report was vague; stating that it needed to be higher for more coverage and more
capacity. A question for the applicant, just the relationship, whether or not it is a proportional
relationship to height or is it an expediential relationship because a key element of what they are
trying to determine is the height exception and driving the 85 ft. overall structure, is something to
discuss in more detail. Are the current site plans accurate that show the orientation of those antennas.
Com. Paulsen:
Said as the former Director of the County Office of Emergency Services, and the one who ran the
EOC during the 1989 quake, communication is vital and any EOC that has trouble with its wireless
communications is going to have a much more difficult time coordinating emergency response,
saving lives, putting out fires, etc. He asked if the height of the generator was high enough off the
ground to stay dry in the event of a 500 year flood? Staff commented 100 year flood was contained
within that drainage channel; 500 years just about all of Cupertino is under water. Relative to
building shadowing, are there parcels that are zoned or potentially planned for higher buildings that
would cause a building shadow that would impact the signal from this tower? (Response: No)
Com. Gong:
Responded to a question from Vice Chair Takahashi. On August 26, 2014, the Planning Commission
approved a request for an exception at a maximum height of 74’6” (Cupertino High School light
pole).
Gary Chao:
Clarified the height referenced that requires an exception is 66 ft., above that is all foliage and faux
material; the 80 ft. reference is not where the panel is going to be mounted. If interested they can talk
to the applicant in terms of whether it is necessary or not to aesthetically make the tree more realistic;
realizing that you don’t want the tree to look unnatural; it needs room to return to its more pointed
top.
Jenny Blocker, Verizon Wireless:
Said Verizon Wireless is currently experiencing a significant coverage gap in this area, specifically
the coverage gap is resulting in unsatisfactory coverage with both wireless and voice service for
areas including the library, city hall, surrounding businesses and surrounding residential area. The
improvements to Verizon’s wireless service in this area will benefit residents, businesses, public
services as well as public safety with the City of Cupertino. She said that normally a carrier presents
designs to service only their own needs; this project was originally brought as a co-development
project with AT&T so the design of the eucalyptus was specifically designed for co-location; and as
mentioned will reduce the need for additional free standing facilities in the future. As well as a
unique cutting edge design, the design of the mono-eucalyptus is also something new and cutting
edge.
Said they normally go with a less expensive alternative such as a monopine or a faux water tower.
Jurisdictions that have adopted in the past find it to be something that blends in with the area. This
facility was designed to be in compliance with the code as well to not only service Verizon’s needs
but also to fit in with the city’s preference for significant coverage gaps in terms of location and
design, as well as fill Verizon’s significant coverage gap in this area. Said that Bill Hemmett their
third party RF consultant with technical background could answer questions. She reported that they
held a community outreach meeting in July 2015, came with RF consultant, only 3 people attended.
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Addressed their concerns; in addition the city asked them to erect story poles that would reflect the
leased area so that residents and passersby could visually see what it would look like. They did so at
their own expense.
Com. Gong:
Said that from the reports and Vice Chair it appears that the higher the antennas are the greater the
coverage; asked applicant why they were allowing the AT&T antennas to be placed there.
Jenny Blocker:
Said when they proposed this project as a codevelopment with AT&T, AT&T was taking the lead,
Verizon agreed to put their antennas at a lower height. Since then AT&T has encountered some
budgetary restrictions which has halted their development plan for this year and is no longer moving
forward. Verizon is carrying the project forward but still respecting the agreement with AT&T to
have Verizon’s antennas at a lower height.
She said if it was up to them, they would want to take their position but those negotiations have not
gone well and they are respecting the agreement they had with them in the beginning.
Chair Lee:
Asked applicant why the search ring was not encircling an area of deficient coverage and said the
search ring was in an area of moderate coverage.
Jenny Blocker:
Said they tried to find the least intrusive alternative. There are some open areas in parks that are
enclosed with residential areas; those are not normally preferred by the cities because residents use
that facility; children use the facility and placing free standing cellphone towers often invite nuisances
where children will try to climb it somehow or at least be intrusive to the use of the parcel. As a park
it may not fit in well with just the function of the park itself. They tried to center in an area that was
more of a commercial area; as mentioned City Hall in this area has a lot of users so this facility
would fulfill both a coverage gap and a capacity gap; the capacity meaning that at high traffic times
customers are not able to use their cellphones; they may get the message where your call is dropped
or it doesn’t go thru at all, so the facility needs to be located in an area that will service that high
capacity, so the coverage maps show more the lack of coverage where capacity is not illustrated as
well on those coverage maps but the facility needs to be centered near the users.
Bill Hemmett, registered professional engineer, Sonoma:
Said a regular part of his professional practice is the calculation or measurement of RF exposure
conditions; they do work for Verizon, Verizon’s competitors, cities, and landlords. Said their job as
engineers is straight forward, what are the levels, how do they compare to the standard. Some detailed
questions were asked about the results of those calculations; first question related to the directionality
of the antennas which show in the drawings was the directions that they are oriented. For purposes
of calculations it was assumed it was maximum power in all directions, so numbers will be
conservative by that factor.
Vice Chair Takahashi:
Asked if they took the output power of the three antenna and then apply it over 360 degrees or do you
weight the power a little because you are spreading it over 360 degrees. It is the absolute power you
are dissipating out of the antenna; Then you take 1000 watts for convenience; 3,000 watts and divide
it into 360 degrees to assume that is the maximum coverage.
Mr. Hemmett:
Said no, that would be reducing the actual power. They take the actual maximum in any direction
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which by their example would be 1,000 and apply it in all directions. The second question related to
the distance from the base of the pole; it’s about 65 ft. so the 3.9% figure, 25 times below the
standard, occurs about 65 ft. from the pole at ground level; if you are closer it is less; if further away
it is less. All the numbers are calculated numbers which we know includes several conservative
factors so actual numbers we know will be lower.
Chair Lee opened the public hearing.
Michael Soland, Cupertino resident:
Has been a licensed ham operator for 10 years. He is opposed to the project based on the fact that it
will not provide the most public benefit at the particular location selected. Said he felt the lack of
follow-up on alternative sites shows a lack of diligence and he believes AT&T has conducted RF
interference studies around the Cupertino area in particular South Blaney and Stevens Creek and
Torres and Rodrigues. They had RF sampling antennas up for a couple of weeks out of the past year,
and he has not seen the analysis from that report in the agenda packet. Also a source of interference
may be the antennas on top of City Hall; has anyone looked into that? Also not included in the report
there was a high voltage line on site; it is likely going to be 10 feet away from the proposed tower
location; will that cause a source of interference? What about flooding? A wet year is expected; what
impact will that have? AT&T is not present here, doesn’t look like they have plans to initially be on
the tower, so the only benefactors are going to be Verizon Wireless subscribers and the people who
will suffer are anyone who has AT&T or another carrier. He pointed out emergency services will not
be served by this antenna like the mass emergency services, those are operated by hams in case of a
massive emergency because towers will be overloaded by customers. The people who won’t benefit
are the vacant office spaces around here, all of the Apple employees who will be at the Apple campus
once it becomes online; that should be taken into consideration when picking a new site.
Phil (no last name given):
Said the coverage from City Hall was not adequate and more was needed. Said he was not sure if
studies were conducted relating to antennas and health problems. There were concerns about children
in the area and them getting sick. Said you don’t have to be an engineer to see that the position of the
antennas should be more in a park or in green space far from residences. When you are a resident you
don’t want to live near an antenna. He said he wanted answers.
Suzane Lyle, Cupertino resident:
Said she felt the notification of the July meeting did not clearly state what was being proposed; she
felt it was deceitful as it did not show a true picture of what was being proposed. Said attendance at
the Planning Commission meeting was low because one of the area schools was holding a Parent
Night meeting. She said she felt the outreach could have been better.
Anna Soland, Cupertino resident:
Concurred with the previous speaker; just learned about the meeting a few days ago because a
community member took it upon herself to notify people. Said although she lives outside the 300 ft.
radius it affects her and many people who don’t know what is going on. Poles may indicate the
space that it will take up, not the vertical space and that is significant.
Expressed her opposition to the project; they own a property across the street from the proposed site;
and walk and drive by it every day. Said she is a Verizon customer and gets horrible cell phone
coverage. However, the proposed faux eucalyptus tree can only be described as a monstrosity; it
will tower over the trees around it and has no place in this residential neighborhood. How does this
tower fit into the Civic Center renovation plans? How will the space change when the new Civic
Center is built? The site is the most innocuous choice because of the surrounding vegetation; the
faux tree at a height of a 7 to 8 story building, will tower over the surrounding trees; just because the
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site offers more visual coverage than other sites does not mean it offers enough visual coverage.
Furthermore, while the arborist report dated April 2015 for Verizon lists the surrounding trees as in
fair to good condition, the arborist report prepared by Debra Ellis only few months before for the
Civic Center project lists those same trees as in fair to poor condition and recommends their removal
for safety reasons if certain actions are not taken. Will these trees be slated for removal in the near
future eliminating the so-called natural screening of vegetation offered as justification for the site?
According to the documentation provided by Verizon and City Council, numerous buildings were
considered and approved by the engineer as possible wireless facility sites but were ultimately
abandoned. One of those buildings was the Cypress Hotel which was considered in 2011 but was
rejected because no agreement could be made with the owners. The hotel now has a new name and
new owners. Another building listed was an Apple building which was said to be non-responsive to
correspondence. These are avenues worth reopening; it is the responsibility of City Hall and
Verizon to make these conversations happen before committing to an alternative that will visually
tarnish a good neighborhood. The top of the building is the logical and appropriate place for this
equipment; not the backyard of many good citizens and homeowners of Cupertino. There are
several acceptable candidates just blocks away; surely the city can make one of those happen.
Art Cohen, Cupertino resident:
The intent of the speaker was to address the Commission in Oral Communication category on
community benefits. As that portion of the meeting was closed, he did not continue and left the
podium.
Lisa Wang, Cupertino resident:
Said she opposed the application because it is too close to the residential area. Medical studies do not
keep up with the new wireless technologies. There are health concerns on long time exposure to the
radiation causes of high risk to cancer, especially for children. Said she had various reports from
universities, studies from the American cancer organization and WHO and papers from the
President’s cancer panel showing that there are higher risks of cancer caused by the long term
exposure to radiation. She read some text from a German study in 2004 stating that living within 400
meters of cell towers increases the risk of developing cancer by 300%. Said she would choose her
family’s health over picking up cell phone calls. Said the height exception was unacceptable; it is
too close to the residential area. Said she would send the Commission copies of informational
materials.
Amit Karkhanis, Cupertino resident:
Said he agreed they needed good cell phone coverage but did not agree with the proposed location of
the cell phone tower. Said he lived across the street but didn’t receive any formal communication
about what is happening until the community member alerted the neighborhood. The neighborhood
needs to be better informed about what is happening. Said he did not feel due diligence was done on
alternative sites; talked about Wilson Park; things were said that it might impact residential, the
current location, there are residents as well so it’s the same thing. Many children visit the park and it
would impact them; how can that be justified when two of their towers are on high school campuses.
The third thing is having an open area away from the residences; looking at some alternative sites
would be helpful.
Andrew Brumm, Cupertino resident:
Said the residents of Cupertino are not well informed about the cell phone tower issue. They need
more time; postpone it, educate themselves. The technology is relatively new; once the tower is there,
it is harder to take it down. Need to slow down, put the brakes on; what are the ramifications of this
EMF? Said he did not feel the need for more coverage in this area, it seems to be more of a priority
for the people to be safe and healthy rather than have more coverage. Need more time to assess the
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situation; lot of studies from Europe on effects of low level radiation; not to mention there are schools
in close proximity; they should put it in the mountains; people are not educated about the technology.
Chair Lee closed the public hearing.
Bill Hemmett:
Responded to questions relative to the effectiveness of the signal; if the tower were twice as tall
would coverage be better? Said it was a network question that he didn’t have expertise in because he
did not know the network design that Verizon uses; but said if it is too tall it will cause interference
to the other sites. As the systems mature and they add more sites to the system to fill in gaps, those
are operating at lower powers because they are covering a smaller area and if it was a higher power or
taller, then it would interfere with the other sites. It is a complex network design, so perhaps a
hypothetical question that wouldn’t apply here in terms of twice as tall. He said there was exposure at
ground level; if moving twice as far away, it goes down by a factor of 4; 10 times as far away it goes
down by a factor of 100, so the power levels drop rapidly with distance and if you increase the height
then your distances are greater by that magnitude.
Jenny Blocker:
Said they had not spoken to the new owners of the Cypress Hotel; since 2011-12 there has been no
further communications. Consideration was given to locate the antenna on City Hall. City Hall
height is not tall enough; Verizon antennas are at 66 ft. which is not the height of the building. The
new freestanding tower would provide more coverage because the antennas would be higher.
Chair Lee:
Asked attorney to explain what federal law would prohibit the Commission from making a decision;
some community members spoke about their concerns about health issues and whether or not they
can make a decision based on those health concerns and what kind of findings they are allowed to
make relative to their decision tonight.
Colleen Winchester:
With respect to the RF emissions, federal law preempts the city from denying any application based
on concerns about health provided that the design meets federal guidelines. There was testimony
about the design meeting federal guidelines, so there cannot be a decision made based upon the health
risks. When you are looking at the decisions, you can be looking at other types of criteria not related
to health; design criteria. In this particular case, City Council will make a decision based upon
whether or not to lease the property. So whether or not it is on this property here in one location vs.
another location those lease terms are all up to the City Council; it is not before the Planning
Commission. The findings you are going to make are whether or not the literal enforcement of the
provisions of the chapter will result in restrictions inconsistent with the spirit intent of the chapter,
whether or not the granting of an exception will result in a condition that is injurious to public
property or property or improvements in the vicinity and will not be detrimental to the public health,
safety and welfare.
Chair Lee:
Asked if they could make their decision on whether or not to approve or deny the application on the
finding that not enough sites were evaluated or evaluated enough or exhausted further.
Colleen Winchester:
It is a two-step analysis; the first step analysis whether or not there is significant gap in coverage; the
second analysis is whether or not the least intrusive means have been established for purposes of this
particular site. If burden shifting we say you haven’t shown us this site; you haven’t exhausted sites;
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then we need to say here are proposed alternative locations. It goes back and forth with the burden
shifting. It is for the city to identify other potential sites if you are looking at a site analysis.
Com. Paulsen:
Asked if they could make a decision based on what would provide the most effective coverage within
the scope of federal law. In other words being at the top of a tall building might provide better
coverage; if they were told that and now don’t know that; but if they were told that they could say
they would like it on top of the tall bldg. because it provides better coverage rather than starting at
ground level.
Colleen Winchester:
Said no, if they demonstrate that there is a significant gap in coverage, then you are saying there is a
better way to address the gap. Said they need to look at the evidence with respect to whether or not
there is a significant gap in coverage and then the least intrusive means, not necessarily the business
decision as to whether or not there might be a better business model.
Com. Paulsen:
So least intrusive might be putting it on city property rather than telling a business owner that they
want them to put it on top of their building.
Gary Chao:
At the end of the day you need a willing property owner as well; that is part of the equation.
Said that in 2013 the City Council had a conversation at their level about the City Hall site as a
possible location, southside for a carrier and they looked at various locations within the Civic Center
property, and at the time provided preliminary feedback to the wireless carrier. There have been
conversations at the higher level City Council in terms of looking at pointing directions to them to
have a facility at this stage but the attorney is correct, they would have another chance to look at the
lease and they would have to bless it in order for things to move forward.
Colin Jung:
Staff and City Council have also looked at ways of improving wireless coverage at City Hall in the
past and these are mechanisms that just improved coverage at City Hall area itself. There is a
distributed antenna system that brings the signal from the outside of the building inside the building,
and it is still poor inside the building because the outside signal is bad. He said he has AT&T
coverage and must go outside to answer his phone and move around to find a spot that works and that
is true for everyone else.
Com. Sun:
Relative to the Planning Commission’s decision today to grant the application or deny it, does the
application still go to the City Council?
Colleen Winchester:
Said it does go to City Council because the ultimate decision to lease the property is the Council’s.
The application for the cell tower, that decision is the Commission’s at this point subject to appeal. If
there is an appeal it is heard by City Council but regardless if there is an appeal of the Planning
Commission decision, the City Council has the ability to either approve or deny the lease as the
property owner.
Com. Gong:
Said there are two points they need decisions on: significant gap and least intrusive means. Asked for
a definition of least intrusive means.
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Colleen Winchester:
Said there were two different issues with respect to least intrusive means; the first one is the site
location and when you deal with site location you are talking about here vs. a hotel on top of a hotel
down the street. If it is for the city; the city is going to deny based on the least intrusive means; there
needs to be a burden shifting that the site is technically feasible and available and that goes back and
forth. When talking about design criteria, you are talking about not liking such things as height; you
explain why we don’t like the height for example; you explain why, what is it about the height, where
is it located, proximity to residential, colors and materials, etc., and how it integrates with the
surrounding areas.
Vice Chair Takahashi:
Regarding height, their hands are tied from the standpoint of health assessment; said he had questions
regarding their RF radiation from the standpoint of making sure he understood how the analysis was
completed.
Looking at the height he envisioned the 80 ft. tall eucalyptus which will be very large, prominent,
with not much blending. It will be more challenging based on the sheer magnitude.
Said he was trying to assess if it were lowered does it increase exposure and therefore create an
alternative issue because it would be increasing exposure which is not something he wants to do;
however from aesthetics and fitting in to the site, he would like to hear other commissioners’ input
about height.
Com. Gong:
Said she appreciated the ‘before’ and ‘after’ simulations which enforced her opinion that it sticks out
above the existing canopy not even taking into factor that some of that existing canopy is going to go
away. Said she agreed with Vice Chair Takahashi that it is going to be very tall.
Com. Paulsen:
Said he liked big trees; he felt in the long term if they planted tall trees nearby along the street and
other places, eventually their sticking out of the tower would be diminished; however it would be a
significant feature in the near term. Said he did not personally have a strong opinion on the height
presently because it could be screened over time.
Com. Sun:
Said it was the third or fourth time he discussed the cell phone tower and each time the public has a
different opinion but focuses on health issues. They are forbidden to discuss health issues, and he has
voted yes on some and no on others. Said he agreed with Com. Paulsen that they don’t need to think
about the height of the tree, most cell phone towers are important for daily life. Said he was opposed
to cell phone towers at the other sites because applicants didn’t do good work on outreach, but for this
one in City Hall and Heart of the City it is the heart of the entire city to operation and is critical to
have this cell phone tower. Said he was inclined to grant the application.
Chair Lee:
Said she has heard many applications on cell phone towers since 2009; each time voting yes; the
applicant on this one gave reasonable answers to questions which is to say that they are trying to fix
capacity as well. Said she was a customer as well and does not have coverage in this area. It would
help; in the immediate vicinity there is nothing 80 ft. tall but in their general vicinity there are some
plans to build a parking structure or what it is currently there. The only way is to build up in
Cupertino; the Commission cannot make any decision regarding health risks, only aesthetics and
siting.
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Com. Gong:
Said she agreed that the applicant has shown there was a significant gap; the tree will be extremely
tall in the existing canopy and she felt that there could be less intrusive sites that the applicant has not
explored since 2012, but there are plans for the City Hall/City Center development. As far as future
aesthetics go, there is one constant, which is change.
Com. Paulsen:
Commented about the functionality of the tower; many people are abandoning their land lines and
going to cell service only. In case of a household emergency it is sometimes better to have good cell
service inside the home. He corrected comment that the amateur ham radio person said about the cell
tower not being useful during a big earthquake. As long as you have power to the cell tower which is
assumed with the generator, certain phone numbers are given priority for a dial tone over the general
public and those numbers are in City Hall, so the EOC would be able to make use in the cellphone
tower during an emergency; therefore it is an important function of that aspect of city government.
Com. Sun:
Said he was inclined to approve the application, but the difference is whether to consider the height as
one factor and address it if they can modify the condition and set a height restriction.
Com. Gong:
Relative to height restriction, is the 80 ft. which would actually be 85 ft. with the foliage, the
minimum required; how low could it go?
Colin Jung:
Said according to the information submitted by applicant to meet both their coverage and capacity
issue that they added will get much worse in the next 18 to 20 months, and to achieve the coverage
they want to achieve, that is the height they need and the coverage. Pointed out that it’s the area that
is covered and it is true that while this facility is in the yellow area and people are saying why is it in
the middle of the red area, the red area is primarily residential and there is another Verizon contractor
that is looking to put another facility in that area around Miller Ave. The facility marked as Cupertino
is actually a San Jose office building; that site is near capacity and that is why Verizon pursued an
application at Cupertino High School to take the load off that and expand the coverage that they want
to achieve in the Main Street area. The proposal is consistent with the wireless master plan because
of the consolidation, collocation, so you are asking if we can go back to the single; only if AT&T
decided they did not want to collocate. Said AT&T does have an application on file; they prefer
being on top; Verizon asked to be on top and were told no.
Gary Baum, Special Counsel for the City of Cupertino:
Has been negotiating with Verizon and AT&T on behalf of the city on the lease. It is important to the
city and to the Communications Master Plan and the cell master plan for the city that this be
designated as a collocated site because we don’t want two towers there. If it is not AT&T it might be
a different carrier. The Commission should do as they please and within their own jurisdiction; it
ultimately is in the city’s and public’s best interest that this be a collocation site. It was the subject of
very heavy negotiation because we are encouraging collocation to reduce the impact on our residents
as well as to enhance our own communications. If it is not AT&T it is likely to be another carrier. We
would request and discourage the Commission from deleting that because it is ultimately for the city
and the public’s benefit.
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Vice Chair Takahashi:
Said the intent wasn’t to create a conflict with what the city is trying to do with regard to
consolidation; it was just in the unlikely event there was only a single carrier on the pole; would it
be possible in the future to make the tree smaller. It wasn’t to undermine what the city is trying to do
with consolidation because that is obviously in the benefit of reducing the number of towers.
Com Gong:
(Was asked if her concern was the height as well?) Said she did not get a definitive answer, is the 80
ft. tower with the additional 5 ft. foliage the absolute minimum height that the applicant needs to
achieve the collocation antennas? (Yes)
MOTION: Motion by Com. Sun, second by Com. Paulsen, and unanimously carried 5-0-0 to
approve Applications DP-2014-07, ASA-2014-10 and EXC-2014-12 per the draft
resolutions.
Steve Chao:
Said there was already a condition that requires the applicant to work with the city on landscaping and
this is on city property so it is governed by public.
Com. Gong:
Said she asked that the applicant reapproach the Cypress Hotel; they are under new ownership and it
is close enough where it would fit with City Civic plan.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee: No meeting.
Housing Commission: No meeting.
Economic Development Committee Meeting:
Received the Economic Development Strategic Plan update and an update on new activities in
Cupertino.
Vice Chair Takahashi reported he attended presentations by the developers of The Oaks as well as
Marina Foods; it appears moving toward formula of sidewalk eating, walkability, plazas, apartments,
condos.
Mayor’s Monthly Meeting With Commissioners:
Vice Chair Takahashi reported that there was a 3:2 vote to proceed with a new City Hall with
underground parking, 2 story, 26,000 to 30,000 sq. ft. with 10,000 sq. ft. of meeting spaces. Seismic
risk was the underlying rationale for moving forward. Also a program room for the Library with
separate entrance; current building is 50 years old; new building will be 90% more energy efficient;
$68 million budget.
Potential change in the development process, make it more of a competitive process with a one-year
cycle; any developer needing General Plan amendment works to meet the requirement, transportation,
schools and community space benefit; propose to start next year
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General Plan Amendment - no office in the current allocation – only 1700 sq. ft. and 122 hotel rooms
left.
Transportation forum hosted by Mayor; attended by Apple, Stanford and Uber.
Planning Commission working with the Safety Commission to address security.
Public Safety – neighbor complaints about auto and home burglaries. Cupertino is in top 5 safest
cities.
Parks and Rec planning a retreat for the Planning Commission to work on a Master Plan for the parks.
Parks and Rec Commission: Report on Blackberry being opened for foot golf.
Shakespeare in the Park report.
Discussion of a new Collins ball field; Fall Fest Sept. 12
Library Commission – Poet Laureate selected
First Hackathon in the Library was held, over 100 students attended
American Library Conference held in San Francisco in June, 11,000 attendees; two Commissioners
attended
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: No written report.
MISC:
Chair Lee announced a Pancake Breakfast to be held at Original Pancake House on DeAnza Blvd.
and Highway 85, 9 a.m. to 3 p.m., Sat. Aug. 29th; 15% of proceeds benefit disadvantaged women and
children (sponsored by QUOTA Club of Cupertino)
ADJOURNMENT:
The meeting was adjourned to the Planning Commission meeting at 6:45 p.m. on September 8, 2015.
Respectfully Submitted: /s/Elizabeth Ellis
Elizabeth Ellis, Recording Secretary
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ASA-2014-10
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6786
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING AN
ARCHITECTURAL AND SITE APPROVAL FOR A NEW PERSONAL WIRELESS SERVICE
FACILITY CONSISTING OF SIX PANEL ANTENNAS MOUNTED ON A COLLOCATABLE,
80-FOOT TALL TREEPOLE AND AN ASSOCIATED EQUIPMENT ENCLOSURE AT
CIVIC CENTER, 10300 TORRE AVENUE
SECTION I: PROJECT DESCRIPTION
Application No.: ASA-2014-10
Applicant: Jenny Blocker (for Verizon Wireless)
Property Owner: City of Cupertino
Location: 10300 Torre Avenue
SECTION II: FINDINGS FOR ARCHITECTURAL AND SITE APPROVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application for an
Architectural and Site Approval as described in Section I. of this Resolution; and
WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the
City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the
application; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
1. The proposal, at the proposed location, will not be detrimental or injurious to property or
improvements in the vicinity, and will not be detrimental to the public health, safety, general
welfare, or convenience;
2. The proposal is consistent with the purposes of Chapter 19.134, Architectural and Site Review, of the
Cupertino Municipal Code, the General Plan, the wireless facilities master plan, zoning ordinances,
applicable planned development permit, conditional use permits, variances, subdivision maps or
other entitlements to use which regulate the subject property including, but not limited to, adherence
to the following specific criteria:
a) Abrupt changes in scale have been minimized. The new treepole has been sited in an area with
existing tall trees.
b) Design harmony between the new treepole and existing trees has been preserved and the
materials, textures and colors of the new treepole harmonize with adjacent landscaping and
preserve the future character of the neighborhood and purposes of the zone in which it is
situated. The location, height and materials of walls, fencing, hedges and screen planting
harmonize with adjacent development. Unsightly utility installations have been concealed.
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Ground cover or various types of pavements have been used to prevent dust and erosion, and the
unnecessary destruction of existing healthy trees have been avoided to the extent practical.
c) This new development, abutting an existing residential development, has been designed to
protect residents from noise, traffic, light and visually intrusive effects by use of buffering,
setbacks, landscaping, fences and other appropriate design measures.
NOW, THEREFORE BE IT RESOLVED
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this
matter, subject to the conditions which are enumerated in this Resolution beginning on Page 2 thereof,:
The application for an Architectural and Site Approval, Application no. ASA-2014-10 is hereby approved,
and;
That the subconclusions upon which the findings and conditions specified in this Resolution are based
and contained in the Public Hearing record concerning Application no. ASA-2014-10 as set forth in the
Minutes of Planning Commission Meeting of August 25, 2015 and are incorporated by reference as
though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on Exhibits titled: “Verizon Wireless/DEANZA STEVENS CREEK/ 10800 TORRE
AVENUE/CUPERTINO, CA 95014/ APN: 369-31-033/ LOCATION #: 249535” prepared by MST
ARCHITECTS dated 05/26/15 and consisting of ten sheets labeled T1.1, C-1, C-2, A1.1, A2.1, A2.2,
A3.1, A3.2, A3.3, L1.1, except as may be amended by the conditions contained in this resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees, dedication
requirements, reservation requirements, and other exactions. Pursuant to Government Code Section
66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and
a description of the dedications, reservations, and other exactions. You are hereby further notified
that the 90-day approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a
protest within this 90-day period complying with all of the requirements of Section 66020, you will
be legally barred from later challenging such exactions.
3. COLOCATION OF ANTENNAE
The treepole shall be structurally designed to accommodate the collocation of additional antennae
from other wireless carriers. The co-location agreement shall be at market rates with reasonable
compensation to the mast owner.
4. ABANDONMENT
If after installation, the aerial is not used for its permitted purpose for a continuous period of 18
months, said aerial and associated facilities shall be removed. The applicant shall bear the entire cost
of demolition and removal.
5. EXPIRATION DATE
This architectural and site approval shall expire ten (10) years after the effective date of the approval.
The applicant may apply for a renewal of the approval at which time the Planning Commission may
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review the state of wireless communication technologies, camouflage techniques and maintenance to
determine if the visual impact of the aerial facility can be reduced.
6. TREE POLE APPEARANCE AND MAINTENANCE
The applicant shall construct a eucalyptus style treepole to raise the height of the antennas and shall
meet the following design criteria:
a) Use a sufficient number of artificial branches to obscure the appearance of the panel antennas and
any associated mounting framework.
b) Panel antennas mounted away from the mast shall be covered in leaf socks to blend with the green
foliage of the artificial branches.
c) The mast shall be wrapped with a faux bark and any antenna mounted close to the mast shall be
painted brown to mimic a tree trunk.
d) The foliage shall have a mottled green coloration.
The building permit shall be reviewed and approved to the satisfaction of the Community
Development Director to ensure the above condition is met. The applicant shall perform regular
maintenance of the tree pole to maintain its appearance and obscure the panel antenna s from public
view.
7. EQUIPMENT ENCLOSURE
The base equipment enclosure shall be constructed of high quality materials and/or be screened by
appropriate landscaping as determined by the City Council. The final enclosure design shall be
reviewed and approved by the Director of Community Development prior to issuance of building
permits.
8. TREE REMOVAL
The applicant shall apply to the City Streets and Trees Supervisor for permission to remove any Park
trees associated with the construction of this wireless facility.
9. ACOUSTICAL ENCLOSURE FOR EMERGENCY POWER GENERATOR
To meet City Noise standards, the power generator shall be enclosed with a Level 2 Acoustic
Enclosure. The addition of the acoustic enclosure shall be noted on the building plans.
10. SETBACK OF ENCLOSURE FENCING FROM TRASH ENCLOSURE & PARKING LOT CURBING
At the building permit stage, the applicant shall provide revised drawings of the equipment enclosure
demonstrating a minimum 2-foot setback of the enclosure fencing from the parking lot curbing and a
minimum 3-foot setback of the enclosure fencing from the trash enclosure fencing.
11. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. DP-2014-07 and EXC-2014-12 shall be applicable to
this approval.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT DEPT.
12. WIRE CLEARANCE EASEMENT
Prior to building permit approval, Applicant shall coordinate with Public Works staff to vacate or
otherwise address the wire clearance easement that affects the project.
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13. LANDSCAPING AND IRRIGATION APPROVAL
Prior to building permit approval, Applicant shall coordinate with Public Works staff to obtain City
approval for new/replacement landscaping and irrigation for the project.
14. CONSTRUCTION STAGING PLAN
Prior to building permit approval, Applicant shall provide a construction management plan that
identifies the timing/duration of construction activities, and construction staging and temporary
construction improvement locations that shall be reviewed and approved by the Director of Pub lic
Works.
PASSED AND ADOPTED this 25th day of August, 2015, at a regular Meeting of the Planning
Commission of the City of Cupertino, State of California, by the following roll call vote:
AYES: COMMISSIONERS: Chair Lee, Vice Chair Takahashi, Gong, Sun, Paulsen
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST: APPROVED:
/s/Gary Chao /s/Winnie Lee
Gary Chao Winnie Lee
Asst. Community Development Director Chair, Planning Commission
G:Planning/PDREPORT/RES/2014/ASA-2014-10 res.doc
151
DP-2014-07
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6787
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINOAPPROVNG A
DEVELOPMENT PERMIT TO ALLOW THE CONSTRUCTION OF A PERSONAL
WIRELESS SERVICE FACILITY, CONSISTING OF A 80-FOOT TALL TREEPOLE WITH
SIX PANEL ANTENNAS AND ASSOCIATED BASE EQUIPMENT STATION
AND EMERGENCY POWER GENERATOR AT CIVIC CENTER, 10300 TORRE AVENUE
SECTION I: FINDINGS
WHEREAS, the Planning Commission of the City of Cupertino received an application for a
Development Permit, as described in Section II. of this Resolution; and
WHEREAS, the necessary public notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held one or more public
hearings on this matter; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
has satisfied the following requirements:
1) The proposed use, at the proposed location, will not be detrimental or injurious to property
or improvements in the vicinity, and will not be detrimental to the public health, safety,
general welfare, or convenience. The project will utilize an unused corner of the Civic
Center property and generate radio frequency energy emissions and noise in quantities that
will be below Federal safety standards and City standards respectively. The antenna mast
will be designed to mimic a tree to blend into the existing landscaping. Other constructed
features will utilize high quality materials and not block sight lines for vehicles or
pedestrians;
2) The proposed use will be located and conducted in a manner in accord with the Cupertino
Comprehensive General Plan, the Wireless Facilities Master Plan, the Wireless
Communications Facilities Ordinance and the purpose of this title.
3) That the operation of the facility will comply with federal safety standards for radio
frequency energy emissions.
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NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted
in this matter, the application for Development Permit is hereby approved with the landscaping
and irrigation plan deferred for City Council approval, subject to the conditions which are
enumerated in this Resolution beginning on Page 2 thereof; and
That the subconclusions upon which the findings and conditions specified in this resolution are
based and contained in the public hearing record concerning Application No. DP-2014-07 as set
forth in the Minutes of the Planning Commission Meeting of August 25, 2015 and are
incorporated by reference as though fully set forth herein.
SECTION II: PROJECT DESCRIPTION
Application No.: DP-2014-07
Applicant: Jenny Blocker (for Verizon Wireless)
Property Owner: City of Cupertino
Location: 10300 Torre Avenue
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
1. APPROVED EXHIBITS
Approval is based on Exhibits titled: “Verizon Wireless/DEANZA STEVENS CREEK/ 10800
TORRE AVENUE/CUPERTINO, CA 95014/ APN: 369-31-033/ LOCATION #: 249535”
prepared by MST ARCHITECTS dated 05/26/15 and consisting of ten sheets labeled T1.1, C-
1, C-2, A1.1, A2.1, A2.2, A3.1, A3.2, A3.3, L1.1, except as may be amended by the conditions
contained in this resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees, dedication
requirements, reservation requirements, and other exactions. Pursuant to Government
Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the
amount of such fees, and a description of the dedications, reservations, and other exactions.
You are hereby further notified that the 90-day approval period in which you may protest
these fees, dedications, reservations, and other exactions, pursuant to Government Code
Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying
with all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
3. COLOCATION OF ANTENNAE
The treepole shall be structurally designed to accommodate the collocation of additional
antennae from other wireless carriers. The co-location agreement shall be at market rates
with reasonable compensation to the mast owner.
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4. ABANDONMENT
If after installation, the aerial is not used for its permitted purpose for a continuous period
of 18 months, said aerial and associated facilities shall be removed. The applicant shall bear
the entire cost of demolition and removal.
5. EXPIRATION DATE
This development permit shall expire ten (10) years after the effective date of the permit. The
applicant may apply for a renewal of the development permit at which time the Planning
Commission may review the state of wireless communication technologies, camouflage
techniques and maintenance to determine if the visual impact of the aerial facility can be
reduced.
6. TREE POLE APPEARANCE AND MAINTENANCE
The applicant shall construct a eucalyptus style treepole to raise the height of the antennas
and shall meet the following design criteria:
a) Use a sufficient number of artificial branches to obscure the appearance of the panel
antennas and any associated mounting framework.
b) Panel antennas mounted away from the mast shall be covered in leaf socks to blend with
the green foliage of the artificial branches.
c) The mast shall be wrapped with a faux bark and any antenna mounted close to the mast
shall be painted brown to mimic a tree trunk.
d) The foliage shall have a mottled green coloration.
The building permit shall be reviewed and approved to the satisfaction of the Community
Development Director to ensure the above condition is met. The applicant shall perform
regular maintenance of the tree pole to maintain its appearance and obscure the panel
antennas from public view.
7. EQUIPMENT ENCLOSURE
The base equipment enclosure shall be constructed of high quality materials and/or be
screened by appropriate landscaping as determined by the City Council. The final enclosure
design shall be reviewed and approved by the Director of Community Development prior to
issuance of building permits.
8. TREE REMOVAL
The applicant shall apply to the City Streets and Trees Supervisor for permission to remove
any Park trees associated with the construction of this wireless facility.
9. ACOUSTICAL ENCLOSURE FOR EMERGENCY POWER GENERATOR
To meet City Noise standards, the power generator shall be enclosed with a Level 2 Acoustic
Enclosure. The addition of the acoustic enclosure shall be noted on the building plans.
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10. SETBACK OF ENCLOSURE FENCING FROM TRASH ENCLOSURE & PARKING LOT
CURBING
At the building permit stage, the applicant shall provide revised drawings of the equipment
enclosure demonstrating a minimum 2-foot setback of the enclosure fencing from the parking
lot curbing and a minimum 3-foot setback of the enclosure fencing from the trash enclosure
fencing.
11. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. ASA-2014-10 and EXC-2014-12 shall be
applicable to this approval.
SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT
DEPT.
12. WIRE CLEARANCE EASEMENT
Prior to building permit approval, Applicant shall coordinate with Public Works staff to
vacate or otherwise address the wire clearance easement that affects the project.
13. LANDSCAPING AND IRRIGATION APPROVAL
Prior to building permit approval, Applicant shall coordinate with Public Works staff to
obtain City approval for new/replacement landscaping and irrigation for the project.
14. CONSTRUCTION STAGING PLAN
Prior to building permit approval, Applicant shall provide a construction management plan
that identifies the timing/duration of construction activities, and construction staging and
temporary construction improvement locations that shall be reviewed and approved by the
Director of Public Works.
PASSED AND ADOPTED this 25th day of August 2015, at a Regular Meeting of the Planning
Commission of the City of Cupertino by the following roll call vote:
AYES: COMMISSIONERS: Chair Lee, Vice Chair Takahashi, Gong, Sun, Paulsen
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST: APPROVED:
/s/Gary Chao /s/ Winnie Lee
Gary Chao Winnie Lee
Asst. Community Development Director Chair, Planning Commission
G:/planning/pdreport/res/2014/DP-2014-07 res.doc
155
EXC-2014-12
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6788
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING A HEIGHT
EXCEPTION TO ALLOW ANTENNAS OF A PROPOSED PERSONAL WIRELESS SERVICE FACILITY
TO BE MOUNTED AT A MAXIMUM HEIGHT OF 66 FEET OR LESS ON A PLANNED 80-FOOT TALL
TREEPOLE AT CIVIC CENTER LOCATED AT 10300 TORRE AVENUE
SECTION I: PROJECT DESCRIPTION
Application No.: EXC-2014-12
Applicant: Jenny Blocker (for Verizon Wireless)
Location: 10300 Torre Avenue
SECTION II: FINDINGS FOR EXCEPTION
WHEREAS, in order to provide height flexibility in situations where practical difficulties, unnecessary
hardships or results inconsistent with the purpose and intent of Chapter 19.136 occurs, an applicant for
development may file an exception request to seek approval to deviate from the standards; and
WHEREAS, the Planning Commission finds the following with regards to the Height Exception for this
application:
1. That the literal enforcement of the provisions of this chapter (19.136) will result in restrictions
inconsistent with the spirit and intent of this chapter, in that, the purposes of this chapter are to
facilitate the development of a wireless communications infrastructure in the City for commercial,
public and emergency uses, and to protect the health, safety, welfare and aesthetic concerns of the
public. Verizon desires to improve wireless voice and data communications service and capacity in
this area where indoor coverage is considered unsatisfactory for the library, city hall, surrounding
businesses and residential neighborhoods. In general, the extent of the wireless coverage is expected
to increase with the height of the antennas. More extensive radio coverage from a single facility is
desirable near large residential areas like the Civic Center neighborhood where there are few good
alternatives for siting wireless communication facilities. Lower panel antenna heights would reduce
coverage area and potentially capacity of this site location.
2. That granting of an exception will not result in a condition that will be detrimental or injurious to
property or improvements in the vicinity and will not be materially detrimental to the public health,
safety or welfare. Radio frequency energy emissions and noise have been studied and found to be far
below federal safety standards and city standards respectively. The wireless facility enhances the
general welfare of the community by providing more communications infrastructure and alternatives
for emergency communications.
3. That the exception to be granted will not result in a hazardous condition for pedestrian and vehicular
traffic. The project is not sited within the travel ways or sight lines of existing pedestrian and motorist
routes.
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NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this
matter, application no. EXC-2014-12 is hereby approved; and
That the subconclusions upon which the findings and conditions specified in this Resolution are based
and contained in the Public Hearing record concerning Application EXC-2014-12, as set forth in the
Minutes of the Planning Commission Meeting of August 25, 2015, and are incorporated by reference
herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on Exhibits titled: “Verizon Wireless/DEANZA STEVENS CREEK/ 10800 TORRE
AVENUE/CUPERTINO, CA 95014/ APN: 369-31-033/ LOCATION #: 249535” prepared by MST
ARCHITECTS dated 05/26/15 and consisting of ten sheets labeled T1.1, C-1, C-2, A1.1, A2.1, A2.2,
A3.1, A3.2, A3.3, L1.1, except as may be amended by the conditions contained in this resolution.
2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees, dedication
requirements, reservation requirements, and other exactions. Pursuant to Government Code Section
66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and
a description of the dedications, reservations, and other exactions. You are hereby further notified
that the 90-day approval period in which you may protest these fees, dedications, reservations, and
other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a
protest within this 90-day period complying with all of the requirements of Section 66020, you will
be legally barred from later challenging such exactions.
PASSED AND ADOPTED this 25th day of August 2015, at a regular meeting of the Planning
Commission of the City of Cupertino by the following roll call vote:
AYES: COMMISSIONERS: Chair Lee, Vice Chair Takahashi, Gong, Sun, Paulsen
NOES: COMMISSIONERS: none
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST: APPROVED:
/s/ Gary Chao /s/ Winnie Lee
Gary Chao Winnie Lee
Assist. Director of Community Development Chair, Planning Commission
G/planning/pdreport/res/2014/EXC-2014-12 res.doc
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0
MACKENZIE & ALBRITTON LLP
220 SANSOME STREET, 14TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
September 24, 2015
VIA EMAIL AND FEDEX
Mayor Rod G. Sinks
Vice Mayor Barry Chang
Council Members Gilbert Wong
Savita Vaidhyanathan and Darcy Paul
Cupertino City Council
10300 Torre Avenue
Cupertino, California 95014 Re: Appeal of Verizon Wireless Applications DP-2014-07, ASA-2014-10 and EXC-2014-12 Telecommunications Facility, Civic Center, 10800 Torre Avenue City Council Agenda, October 6, 2015 Dear Mayor Sinks, Vice Mayor Chang and Councilmembers: We write to you on behalf of our client Verizon Wireless to ask that you follow the well-reasoned recommendation of planning staff and uphold the Planning Commission’s unanimous approval of Verizon Wireless’s stealth facility at Cupertino Civic Center (the “Approved Facility”). The appeal filed by Lei Wang (“Appellant”) has no merit and should be denied. The Approved Facility location and design comply with development requirements of the City of Cupertino (the “City”) and minimize visual impacts. In fact, the location of the Approved Facility was favored at a July 16, 2013, City Council study session. The Approved Facility will provide needed improvements in Verizon Wireless coverage and capacity to Cupertino residents, visitors and emergency services personnel. As described below, the appeal must be rejected under the Cupertino Municipal Code (the “Code”) as well as under federal law. Appellant’s primary objections based on aesthetics are not supported by the Code or the Cupertino Wireless Facilities Master Plan (the “Master Plan”). Indeed, the Master Plan encourages the stealth design and location (a treepole at a non-residential site) that Verizon Wireless has proposed. Verizon Wireless has provided uncontroverted substantial evidence that the Approved Facility fully complies with all findings for approval for a development permit, architectural and site approval and height exception. In addition, the Approved Facility
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September 24, 2015
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will provide needed improvements to Verizon Wireless coverage and network capacity in the area, and a review of 18 alternatives confirms there are no less intrusive feasible alternatives. For these reasons, denial of the application would violate the federal Telecommunications Act. We strongly encourage you to follow planning staff’s recommendation and affirm the Planning Commission’s carefully considered approval.
I. The Project The Approved Facility has been thoughtfully designed to minimize any aesthetic impact on the adjacent community. Verizon Wireless proposes to mount six panel antennas on a treepole designed to resemble a eucalyptus tree. The treepole will be located in an unused area next to a Civic Center parking lot. Antennas will be concealed within faux foliage attached to the treepole. Antennas will also be covered with leaf socks for further camouflage. Faux foliage attached to numerous arced branches will extend both above and below the antennas to enhance the resemblance to a eucalyptus tree. The treepole will be placed within an approximately 1,420 square foot equipment area along with radio equipment and a diesel generator to provide backup power in emergencies. The equipment area will be surrounded by a 10.5 foot tall wood slat fence. The equipment area and treepole base will be screened by numerous existing trees on the Civic Center property and along Rodrigues Avenue. As recommended by the City’s arborist, two trees will be removed to accommodate the equipment shelter, and Verizon Wireless will plant seven ceanothus trees and eight manzanita bushes along the north side of the equipment area facing Rodrigues Avenue, with additional manzanita bushes to be planted on the south side adjacent to the parking lot. Photosimulations of the Approved Facility are attached as Exhibit A. A report by Hammett & Edison, Inc., Consulting Engineers, dated June 12, 2014 (the “H&E Report”), attached as Exhibit B, confirms that radio-frequency (“RF”) emissions from the Approved Facility will comply with Federal Communications Commission (“FCC”) guidelines. The Approved Facility will not generate significant traffic. In short, the Approved Facility will not have significant adverse impacts of any kind.
II. The Approved Facility Complies with All Code Requirements. As confirmed in the Planning Commission Staff Report for the August 25, 2015, Planning Commission hearing, the Approved Facility meets all requirements for approval under the Code. Further, as Verizon Wireless is one of the City’s carriers for emergency response personnel, the Approved Facility will provide an important public safety benefit by improving Verizon Wireless service in the vicinity of the Civic Center, which hosts the City’s emergency operations center. The Approved Facility complies with architectural and site review findings of Code §19.168.030 as the treepole is designed to resemble a eucalyptus tree placed among numerous other trees, treepole materials have been selected with attention to texture and color to blend with existing foliage, and the equipment area is surrounded by a wood slat fence and new landscaping in order to
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preserve neighborhood character. While the 62-foot mounting height of Verizon Wireless’s antennas requires an exception to the Code’s height limit of 55 feet, the Planning Commission properly made the three findings for approval of a height exception under Code §19.136.090: that the antenna height (a) is consistent with the intent of the Wireless Communication Facilities chapter of the Code, (b) is not injurious to adjacent properties, and (c) does not result in a hazardous condition. As the treepole is located 80 feet from the nearest residential property line, it complies with the setback requirement of Code §19.136.050(A)(2)(b). The Approved Facility is consistent with the Master Plan with respect to its non-residential location and stealth design. This includes the faux tree design, as well as the use of screening techniques such as covering the antennas with leaf socks and screening the equipment with fencing and new landscaping. Additionally, the Approved Facility complies with the noise regulations of Code Chapter 10.48, as radio equipment generates minimal noise, and the generator will be turned on no more than a few minutes a month, for testing. The Approved Facility will not generate significant traffic. In short, Verizon Wireless’s Approved Facility complies with all requirements of the Code.
III. Federal Law Compels Approval of the Application. Verizon Wireless is licensed by the FCC to provide wireless telecommunications services throughout the United States, including the City of Cupertino. The siting of wireless communications facilities (“WCFs”), including the one at issue here, is governed by federal law. While reserving to local jurisdictions control over the siting, placement and modification of WCFs, the federal Telecommunications Act (the “TCA”) places “certain limitations on localities’ control over the construction and modification of WCFs.” Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 721 (9th Cir. 2009). Specifically, the TCA preserves local control over land use decisions, subject to the following explicit statutory restrictions:
• The local government must act on a permit application within a reasonable period of time (47 U.S.C. §332(c)(7)(B)(ii));
• Any denial of an application must be in writing and supported by substantial evidence contained in a written record (47 U.S.C. §332(c)(7)(B)(iii));
• The local government may not regulate the placement, construction, or modification of WCFs on the basis of the environmental effects of radio frequency emissions to the extent such facilities comply with the FCC’s regulations concerning such emissions (47 U.S.C. §332(c)(7)(B)(iv));
• The local government may not unreasonably discriminate among providers of functionally equivalent services (47 U.S.C. §332(c)(7)(B)(i)(I)); and
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• The local government’s decision must not “prohibit or have the effect of prohibiting the provision of personal wireless services” (47 U.S.C. §332(c)(7)(B)(i)(II)). With this legal framework in mind, we address below the specific federal law issues before the City Council with respect to this application.
IV. Substantial Evidence for Approval, Lack of Substantial Evidence for Denial As interpreted under controlling federal court decisions, the “substantial evidence” requirement means that a local government’s decision to deny a WCF application must be “authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a ‘scintilla’ but not necessarily a preponderance).” Metro PCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 725 (9th Cir. 2005). In other words, a local government must have specific reasons that are both consistent with the local regulations and supported by substantial evidence in the record to deny a wireless facility permit. While a local government may regulate the placement of WCFs based on aesthetics, it must have specific reasons that are both consistent with the local regulations and supported by substantial evidence in the record. Generalized concerns or opinions about aesthetics or compatibility with a neighborhood do not constitute substantial evidence upon which a local government could deny a permit. See City of Rancho Palos
Verdes v. Abrams, 101 Cal. App. 4th 367, 381 (2002). As set forth above, Verizon Wireless has provided substantial evidence to show that the Approved Facility complies with all requirements for approval under the Code. Among other evidence, photosimulations demonstrate compatibility of the eucalyptus design of the treepole with other trees in the vicinity. The H&E Report confirms that the Approved Facility will operate well below the FCC’s exposure limits. In contrast, Appellant has provided no evidence – let alone the substantial evidence required by federal law – to support denial of the Approved Facility.
V. Radio Frequency Emissions Comply with FCC Standards. The TCA prohibits local governments from considering any alleged health or environmental effects of RF emissions of proposed WCFs “to the extent such facilities comply with the FCC’s regulations concerning such emissions.” 47 U.S.C. §332(c)(7)(B)(iv). As set forth in the H&E Reports referenced above, the Approved Facility complies with applicable FCC guidelines and will operate far below all applicable FCC public exposure limits. Indeed, the H&E Report calculates that the maximum cumulative exposure anywhere at ground level from the Approved Facility MetroPCS facility is only 2.1% percent of the applicable FCC public limit.
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Moreover, federal preemption goes beyond decisions that are explicitly based on RF emissions. It also bars efforts to skirt such preemption through some proxy such as aesthetics or property values. See, e.g., AT&T Wireless Servs. of Cal. LLC v. City of
Carlsbad, 308 F. Supp. 2d 1148, 1159 (S.D. Cal. 2003) (in light of federal preemption, “concern over the decrease in property values may not be considered as substantial evidence if the fear of property value depreciation is based on concern over the health effects caused by RF emissions”); Calif. RSA No. 4, d/b/a Verizon Wireless v. Madera
County, 332 F. Supp. 2d 1291, 1311 (E.D. Cal. 2003) (“complaints about property values were really a proxy for concerns about possible environmental effects of RF [emissions], which cannot provide the basis to support a decision”). Where, as here, a WCF has been shown to comply with FCC guidelines, neither health concerns nor any proxy for health concerns can justify denial of the Approved Facility.
VI. Approval is Required in Order to Avoid Unlawful Prohibition of Service. A local government violates the “effective prohibition” clause of the TCA if it prevents a wireless provider from closing a “significant gap” in service by the least intrusive means. This issue involves a two-pronged analysis: (1) whether the provider has demonstrated the existence of a “significant gap” in service; and (2) whether the proposed facility is the “least intrusive means,” in relation to the land use values embodied in local regulations, to address the gap. See T-Mobile USA, Inc. v. City of
Anacortes, 572 F.3d 987 (9th Cir. 2009); see also T-Mobile West Corp. v. City of Agoura
Hills, 2010 U.S. Dist. LEXIS 134329 (C.D. Cal. 2010).
Recent case law has confirmed that inadequate network capacity to provide
reliable wireless service constitutes a “significant gap” in service to the same extent as
inadequate coverage. See Nextel v. City of Mt. Vernon, 361 F.Supp.2d 336 (S.D.N.Y.
2005) (summary judgment for wireless carrier on a claim of “prohibition of service”
based on a demonstration of inadequate capacity). If a provider demonstrates both the existence of a significant gap, and that the proposed facility meets the “least intrusive means” standard, the local government is
required to approve the facility, even if there would otherwise be substantial evidence to deny the permit under local land use provisions. This is because the requirements for federal preemption have been satisfied; i.e., denial of the permit would “have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. §332(c)(7)(B)(1)(ii);
T-Mobile v. Anacortes, 572 F.3d at 999. For the local jurisdiction to avoid such preemption, it must show that another alternative is available, that it is technologically feasible, and that it is “less intrusive” than the proposed facility. T-Mobile v. Anacortes, 572 F.3d at 998-999. A. Verizon Wireless Has Demonstrated a Significant Gap in Service.
Verizon Wireless has documented the need for improved coverage and network
capacity in the Cupertino Civic Center and surrounding area (the “Significant Gap”). The
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Significant Gap is fully documented in the Statement of Radio Frequency Design
Engineer Brian Ung attached as Exhibit C (the “RF Engineer’s Statement”). The RF
Engineer’s Statement explains that there is a gap in coverage as well as rapidly increasing
usage of Verizon Wireless’s network in Cupertino and that the existing Verizon Wireless
facilities providing service to the area are already experiencing “capacity exhaustion.”
This results in call blocking and a lack of access to the network during periods of peak
usage, and will compromise the Verizon Wireless network in Cupertino—particularly in
the Civic Center area—until additional capacity is added.
Having established a Significant Gap in service, Verizon Wireless has met the
first prong of the two-part test required to presumptively establish a prohibition of service
under federal law.
B. The Alternatives Analysis Confirms that the Approved Facility is the
Least Intrusive Feasible Means to Fill the Significant Gap in Verizon
Wireless Service.
In an effort to fill the Significant Gap, Verizon Wireless evaluated 18 alternatives, as shown in the comprehensive Alternatives Analysis attached as Exhibit D. The result of this analysis is that the location and design of the Approved Facility – a stealth treepole facility placed among numerous other trees in a non-residential location favored by the City – is the least intrusive feasible means of providing wireless service to the Significant Gap. When comparing the locations of the Approved Facility to other potential alternatives, it is important to note that federal law does not require that a site be the “only” alternative, but rather that no feasible alternative is less intrusive than the Approved Facility. MetroPCS v. San Francisco, 400 F.3d at 734-35. In this case, as explained in the Alternatives Analysis, there is no feasible location that would be less intrusive than the Approved Facility. In short, Verizon Wireless has identified a significant gap in coverage and network capacity and has shown that the Approved Facility is the least intrusive means to address it, based on the values expressed in the Code. Under these circumstances, Verizon Wireless has established the requirements for federal preemption such that denial of the permit would constitute an unlawful prohibition of service.
VII. Response to Appeal Appellant raises several grounds for appeal, none of which present substantial evidence to support denial, as required under federal law.
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1. The Approved Facility is Consistent with the City’s Wireless Facilities
Master Plan. Appellant’s primary objection is that the Approved Facility violates the City’s Master Plan, however, a review of specific provisions confirms the Approved Facility’s consistency with the spirit and letter of that guiding document. Several provisions of the Master Plan cited by appellant pertain to impacts on residential areas, but these are irrelevant in a non-residential location such as the Civic Center. The Civic Center is zoned P-BA (Public Building), not residential, and is designated as public facilities on the City’s Land Use Map. Indeed, the only higher preference under the Master Plan is placement on existing structures. As there were no existing structures with a willing landlord and adequate height, Verizon Wireless has placed its facility in the next-preferred location category under the Master Plan: a new structure located in a non-residential location (the Civic Center parking lot). The Approved Facility has been designed to present minimal visual impacts from any vantage point, including the Rodrigues Avenue right-of-way. Following the direction of the Master Plan, Verizon Wireless has camouflaged its facility as a treepole resembling a eucalyptus tree, and placed it in an area with numerous other trees of varying type and height located on the Civic Center property and along the Rodrigues Avenue right-of-way. In further compliance with the Master Plan, antennas are screened with leaf socks to match elements normally viewed in the immediate environment. To harmonize the treepole with surrounding trees, numerous arced branches supporting faux foliage are placed along the length of the treepole trunks, further concealing antennas and providing varied shape to the treepole to blend it with surrounding tree branches. Fronted by the tall established trees along the Rodrigues Avenue right-of-way and with tall streetlights in the vicinity, the treepole is of appropriate scale and blends in well with its surroundings. Verizon Wireless has worked with the City to arrive at a location and design that successfully incorporate the guidance of the Master Plan. As affirmed in the staff report for the August 25, 2015 Planning Commission hearing, “The project is consistent with the Wireless Facilities Master Plan with respect to its location at Civic Center and the design of the free-standing facility within a landscaped area.” (See Planning Commission Staff Report, p. 2.) Appellant’s charges of violation of the Master Plan are unfounded and this ground for appeal must be rejected.
2. The Approved Facility Landscaping Will Enhance the Appearance of the
Equipment Shelter. Appellant questions the aesthetic qualities of the Approved Facility, focusing on the viability of proposed landscaping. The City selected the plant varieties to be used to screen the equipment shelter, that is, ceanothus trees and manzanita bushes. These are both reliable and attractive California native species which require little water. Seven ceanothus trees and eight manzanita bushes will be planted on the north side of the equipment shelter along the Rodrigues Avenue right-of-way. As noted, the treepole will
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harmonize with existing established trees. This ground for appeal is unfounded and must be rejected.
3. The Approved Facility Constitutes the Least Intrusive Alternative for
Providing Needed Wireless Service to the Significant Gap. Appellant attempts to discredit Verizon Wireless’s site selection process by raising infeasible alternate locations. Though the Code does not require Verizon Wireless to show that the Approved Facility is the least intrusive alternative, the Code and Master Plan provide guidance as to location selection. Following this guidance, Verizon Wireless reviewed 18 alternatives as discussed in the attached Alternatives Analysis, discounting locations in residential zones or in residential use as well as locations with unwilling landlords. Several alternatives, including Wilson Park, are located where antennas cannot provide adequate radio frequency propagation to serve the Significant Gap. The Alternatives Analysis concludes that the Approved Facility –l a stealth treepole on a non-residential location – is the least intrusive feasible alternative. We note that the Approved Facility location was favored at the July 16, 2013 City Council study session. In short, this ground for appeal is baseless and must be rejected.
4. The Approved Facility Is Designed for Safety. Appellant raises doubts as to the safety of the Approved Facility, but these doubts are not based on facts. The generator includes an industry-standard diesel generator and fuel tank. The Santa Clara County Department of Environmental Health Hazardous Materials Compliance Division inspects such generators to ensure compliance with applicable regulations, including the California Health and Safety Code. Relevant fire prevention regulations are enforced by the Santa Clara County Fire Department, including the California Fire Code. The Approved Facility is not located within a flood zone as confirmed by the FEMA Flood Zones map cited by Appellant, which shows that the nearest flood zone is a narrow Santa Clara Valley Water District drainage channel located to the east of the Civic Center property. In the unlikely event of a lightning strike, the treepole is grounded and Raycap surge protectors mounted on the treepole will protect equipment. All of appellant’s safety concerns will be fully and adequately addressed by the Cupertino Building Division through their thorough review of construction drawings that are routed to all relevant departments to confirm compliance with all codes. These health and safety code concerns are not relevant to the Council’s review of development permit land use entitlements, and this ground for appeal must be rejected.
5. The Planning Commission Hearing Was Adequately Noticed in
Compliance with Code. Appellant claims that there was inadequate notice of the Planning Commission hearing and cites an outdated code section that is not part of current Code Chapter 19.136, regulating wireless facilities. Verizon Wireless mailed notice of its July 22,
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2015, community meeting to neighborhood residents and also erected a story pole at the Approved Facility location on July 17, 2015, to demonstrate the proposed height of the facility in advance of the community meeting. The City provided required public notice of the August 25, 2015, Planning Commission hearing to property owners within 300 feet of the Civic Center, and notice was also published in the Cupertino Courier and posted on signage at the Civic Center location. A photograph of the posted public notice is attached as Exhibit E. Finally, in filing the appeal, Appellant has confirmed that they were fully aware of Verizon Wireless’s application. This ground for appeal is frivolous and must be rejected.
Conclusion Following the City’s guidance as to the location of the Approved Facility, Verizon Wireless has worked diligently with the City to identify the ideal design for a stealth wireless facility to serve the Civic Center area of Cupertino. As approved by the Planning Commission, the Approved Facility meets the findings for approval under the Code and is consistent with the City’s Wireless Facilities Master Plan. The resulting Approved Facility also represents the least intrusive means to address the gap in coverage and network capacity. Bringing improved Verizon Wireless service to this area is essential to the health, safety, and welfare of residents, travelers, and emergency services providers in the surrounding community. We strongly encourage you to follow the recommendations of planning staff, affirm the Planning Commission approval, and deny the appeal. Very truly yours,
Paul B. Albritton cc: Colleen Winchester, Esq. Colin Jung Gary Chao
Schedule of Exhibits Exhibit A: Photosimulations Exhibit B: H&E Report Exhibit C: Statement of Verizon Wireless RF Engineer Brian Ung Exhibit D: Alternatives Analysis Exhibit E: Posted Public Notice
249
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260
2785 Mitchell Drive Walnut Creek, CA 94598 September 23, 2015
To: Cupertino City Council
From: Brian Ung, Radio Frequency Design Engineer,
Verizon Wireless Network Engineering Department
Subject: Statement in Support of Verizon Wireless’s Proposed
Telecommunications Facility, 10800 Torre Avenue
Executive Summary Verizon Wireless has identified a significant gap in its wireless services in the Cupertino Civic Center and surrounding area. This area is currently served by the existing Verizon Wireless Apple facility one mile to the north of the proposed facility, the De Anza facility 1.1 miles to the west, the Cupertino facility 1.7 miles to the east in San Jose, and the Blue Hill facility 1.6 miles to the south in San Jose. As a result of the distance of existing facilities and demands on the existing network, there is an absence of in-building coverage in the Cupertino Civic Center and surrounding area as well as a large area that lacks in-vehicle service. Further, accelerated growth in voice and data usage by Verizon Wireless customers has increased the demand on the existing Verizon Wireless network in a manner that compromises network accessibility and reliability. This accelerating growth in demand has led to capacity exhaustion of nearby facilities. The coverage gap and capacity gap described below constitute the “significant gap” Verizon Wireless seeks to serve through a new facility (the “Significant Gap”). To avoid further degradation of Verizon Wireless service in the Cupertino Civic Center and surrounding area, the Significant Gap must be remedied through construction of new infrastructure, in this case, a stealth facility at 10800 Torre Avenue (the “Proposed Facility”).
Coverage Gap
Verizon Wireless is experiencing a gap in in-building coverage roughly bounded by Lazaneo Drive and Forest Avenue to the north, East Estates Drive to the east, Bollinger Road to the south, and Westacres Drive and Kim Street to the west. This in-building coverage gap is composed of residential areas as well as much of the Heart of the City area with office, commercial and residential complexes. Notably, in-building coverage is lacking in business and residential locations near the intersection of De Anza Boulevard and Stevens Creek Boulevard as well as
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at the Cupertino Civic Center, location of Cupertino emergency response operations. Additionally, a larger area south of the aforementioned gap extending to Rainbow Drive lacks in-vehicle coverage. The gap area includes heavily-trafficked Bollinger Road with 15,700 vehicle trips per day as well as portions of Stevens Creek Boulevard with 30,400 vehicle trips per day and De Anza Boulevard with 38,800 vehicle trips per day.1 (Collectively, the “Coverage Gap.”) A graphic description of the current Coverage Gap is shown in the map below. The Proposed Facility will provide reliable service coverage to an area of approximately 29.7 square miles and a population of over 61,500 residents. Coverage plot maps like that below provide important information regarding the anticipated level of signal, and therefore the projected coverage provided by a site at a given location. The areas in green reflect good coverage that meets or exceed thresholds to provide consistent and reliable network coverage in vehicles and in homes. The areas in yellow and red depict decreasing levels of coverage, respectively, with yellow areas generally representing reliable in-vehicle coverage, and red areas depicting poor service areas with marginal coverage unsuitable for in-vehicle use.
Current Coverage Map
1 City of Cupertino Public Works Data.
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Capacity Gap The identified gap area is currently served by the existing Apple facility Alpha (southeast-facing) and Beta (southwest-facing) antenna sectors and the existing De Anza facility Alpha (east-facing) antenna sector. This is apparent in the following best server plot. Best server plots depict the dominant signal provided by each antenna sector of nearby Verizon Wireless facilities. Signal from each sector is depicted in a different color. In the following best server plot, the dominant signal of the Apple facility Alpha (southeast-facing) antenna sector is shown in blue, the Apple facility Beta (southwest-facing) antenna sector is shown in black, and the De Anza facility Alpha (east-facing) antenna sector is shown in light tan. The De Anza facility Alpha antenna sector serves a particularly large area of the Significant Gap, including the Cupertino Civic Center. The Proposed Facility is located such that all three of its antenna sectors will provide coverage to the same area, relieving the Apple facility and De Anza facility antenna sectors serving the area.
Best Server Plot
At times of high traffic volume, the coverage area of the distant Apple and De Anza facilities shrinks to accommodate an increasing number of mobile devices closer to those facilities. As a result, the Coverage Gap area is actually enlarged during times of high customer usage. In addition, the volume of voice and data services used by Verizon Wireless customers has been increasing rapidly over time, nearly doubling every year.2 Verizon Wireless has modified its existing facility in an effort to
2 Federal Communications Commission Report & Order 14-153, October 17, 2014, ¶ 7.
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maximize the capacity available; however, as shown in the graphic below, increased demand for voice and data services has already outstripped the capacity of the existing Verizon Wireless facilities serving the gap area. The below graphs show the increased usage over the last year as well as predicted usage through 2016 for the existing antenna sectors serving the Significant Gap. By comparing the trend line of increasing usage (orange line) with the absolute maximum capacity throughput and spectrum availability of this existing facility (red line), Verizon Wireless RF engineering demonstrates that the existing Apple facility Alpha antenna sector reached capacity exhaustion over one year ago and the existing Apple facility Beta antenna sector and the existing De Anza facility Alpha sector are presently reaching capacity exhaustion. Achieving capacity exhaustion severely compromises the Verizon Wireless network serving Cupertino, leading to failed call attempts, poor call quality and slow data speeds (the “Capacity Gap”).
Capacity Graphs
Existing Apple Facility
Alpha (Southeast-facing) Antenna Sector
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Capacity Graphs
Existing Apple Facility
Beta (Southwest-facing) Antenna Sector
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Capacity Graphs
Existing De Anza Facility
Alpha (East-facing) Antenna Sector
Conclusion As cellular networks mature, distant sites must be supplemented with more sites closer to customers, in large measure due to the increase in usage of the network. In addition, certain fourth- and fifth- generation technologies require facilities closer to customers and cannot be provided by the current distant facilities. These coverage and capacity demands have resulted in the Significant Gap in Verizon Wireless service in the Cupertino Civic Center and surrounding area. Verizon Wireless must deploy the Proposed Facility to provide the in-building service coverage required by customers and to avoid further degradation of its network in the area of the identified Significant Gap.
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Please feel free to contact me with any questions or comments regarding Verizon Wireless's proposed facility.
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Alternatives Analysis
De Anza Stevens Creek
Cupertino Civic Center
10800 Torre Avenue, Cupertino
September 24, 2015
Summary of Site Evaluations
Conducted by Complete Wireless Consulting
Compiled by Mackenzie & Albritton LLP
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2
TABLE OF CONTENTS
I.
Executive Summary...............................................................................................................3
II.
Significant Gap......................................................................................................................3
III.
Methodology........................................................................................................................3
IV.
Analysis.................................................................................................................................3
1. Juniper Hotel...............................................................................................5
2. Office Building (Cupertino City Center Buildings)...................................6
3. Seagate Building.........................................................................................7
4. SVF City Center Building 1........................................................................8
5. SVF City Center Building 2........................................................................9
6. I&G Direct Real Estate .............................................................................10
7. Trend Micro..............................................................................................11
8. Civic Center (Proposed Facility)..............................................................13
9. Civic Center Quad Plaza...........................................................................15
10. Civic Center Library Field........................................................................16
11. Church Assembly in Cupertino.................................................................17
12. Church of Jesus Christ of Latter Day Saints.............................................19
13. Wilson Park...............................................................................................20
14. Cupertino City Center Apartments...........................................................22
15. Montebello Building.................................................................................23
16. Biltmore Apartments.................................................................................24
17. Lamonico Property...................................................................................25
18. Small Cell Network..................................................................................26
Conclusion...................................................................................................................................27
Map of Alternatives
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3
I. Executive Summary
Verizon Wireless has identified a significant gap in service in the Cupertino Civic Center and surrounding area of Cupertino. Based on a review of 18 alternatives as set forth in the following analysis, Verizon Wireless believes that placement of a stealth treepole at a non-residential location (the “Proposed Facility”) constitutes the least intrusive alternative to provide service to the identified gap based on the values expressed in the Cupertino Municipal Code (the “Code”) and Wireless Facilities Master Plan (the “Master Plan”).
II. Significant Gap There is a significant gap in Verizon Wireless in-building service coverage in the Civic Center and surrounding area of Cupertino as well as additional areas in the vicinity lacking in-vehicle service. Further, the accelerating increase in the use of voice and data wireless services has led to capacity exhaustion of the existing Verizon Wireless network in the area, compromising network accessibility, reliability and data speeds. The antenna sectors of the existing Verizon Wireless facilities serving much of the gap area have reached capacity exhaustion, and Verizon Wireless must place an additional facility in the Civic Center area in order to provide reliable voice and data services to the area. The identified “significant gap” in network coverage is more fully described in the Statement of Verizon Wireless Radio Frequency Engineer Brian Ung (the “Significant Gap”).
III. Methodology Once a significant gap has been determined, Verizon Wireless seeks to identify a location and design that will provide required coverage through the “least intrusive means” based upon the values expressed by local regulations. In addition to seeking the “least intrusive” alternative, sites proposed by Verizon Wireless must be feasible. In this regard, Verizon Wireless reviews the radio frequency propagation, elevation, height of any existing structures, available electrical and telephone utilities, access, available space for required equipment and other critical factors such as a willing landlord in completing its site analysis. Wherever feasible, Verizon Wireless seeks to deploy camouflaged or stealth wireless facilities to minimize visual impacts to surrounding properties. Under the Master Plan, the most preferred location for wireless facilities is “existing structures in non-residential areas,” followed by new structures in non-residential areas. Less favored are existing and new structures in residential areas. (Master Plan, pp. 14-15) Under the Code, wireless facilities are generally prohibited in residential zones and on parcels with residential uses. (Code §19.136.030(B)) The Code allows for facilities that exceed zoning district height limits through a height exception. (Code §19.136.090).
IV. Analysis Per the guidance of the Master Plan, Verizon Wireless first investigated non-residential locations in the vicinity of the Significant Gap, seeking tall existing structures that could elevate antennas and identifying seven such structures, none of which proved feasible due to unwilling or inaccessible landlords or inadequate radio frequency propagation. Verizon Wireless next sought to place a new facility at a non-residential location, identifying three locations at the Civic
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4
Center, two church locations and a location at a public park suggested by the appellant of the Proposed Facility. One of the Civic Center locations proved able to provide excellent radio frequency propagation with minimal visual impacts and is the location favored at a July 16, 2013 City Council study session. Verizon Wireless also reviewed four additional locations in the vicinity of the Significant Gap that proved infeasible due to residential zoning or residential uses. Lastly, Verizon Wireless considered a network of small cells in the right-of-way. The results of this analysis are as follows:
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5
Existing Structures in Non-Residential Areas Verizon Wireless first investigated the vicinity of the Significant Gap for tall structures in non-residential areas, and identified the following seven locations.
1. Juniper Hotel Address: 10500 South De Anza Boulevard Elevation: 240 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed placement of a facility at this hotel (formerly the Cypress Hotel) located 0.25 miles northwest of the Proposed Facility and 15 feet greater in elevation. This nine-story building provides sufficient height for antennas to serve the Significant Gap. Previously, Verizon Wireless was unable to secure a lease in 2011 from the prior property owner and abandoned this location. The property has recently changed hands. A Verizon Wireless representative has communicated with, but has not secured, a lease with the new owner. Further investigation of available space, utilities and access will need to be completed, as well as negotiation of a new lease, before this alternative would be feasible for a Verizon Wireless facility.
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2. Office Building (Cupertino City Center Buildings) Address: 20450 Stevens Creek Boulevard Elevation: 240 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed placement of a facility at this office building located 0.25 miles northwest of the Proposed Facility and 15 feet greater in elevation. A Verizon Wireless representative contacted the prior building owner regarding a proposal for a wireless facility on this building, but received no response. Follow-up efforts to communicate with the current building owner have been unsuccessful. Lacking a willing landlord, this is not a feasible alternative for Verizon Wireless’s facility.
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3. Seagate Building Address: 10200 South De Anza Boulevard Elevation: 240 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed placement of a facility at this office building located 0.25 miles northwest of the Proposed Facility and 15 feet greater in elevation. A Verizon Wireless representative contacted the building owner, but the building owner was unwilling to enter into a lease with Verizon Wireless due to security concerns. Lacking a willing landlord, this is not a feasible alternative for Verizon Wireless’s facility.
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4. SVF City Center Building 1 Address: 20300 Stevens Creek Boulevard Elevation: 225 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed placement of a facility at this four-story commercial building located 0.20 miles north of the Proposed Facility at an equivalent elevation. A Verizon Wireless representative contacted the building owner regarding placement of a wireless facility on the building but received no response. Follow-up efforts to communicate with the current building owner have been unsuccessful. Lacking a willing landlord, this is not a feasible alternative for Verizon Wireless’s facility.
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5. SVF City Center Building 2 Address: 20330 Stevens Creek Boulevard Elevation: 225 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed placement of a facility at this four-story commercial building located 0.20 miles north of the Proposed Facility at an equivalent elevation. A Verizon Wireless representative contacted the building owner regarding placement of a wireless facility on the building but received no response. Follow-up efforts to communicate with the current building owner have been unsuccessful. Lacking a willing landlord, this is not a feasible alternative for Verizon Wireless’s facility.
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6. I&G Direct Real Estate Address: 10201 Torre Avenue Elevation: 235 feet Zoning: Heart of the City – CG, Res
Verizon Wireless reviewed placement of a facility at this commercial building located 0.1 miles northwest of the Proposed Facility and 10 feet higher in elevation. A Verizon Wireless representative contacted the building owner regarding placement of a wireless facility on the building but received no response. Follow-up efforts to communicate with the current building owner have been unsuccessful. Lacking a willing landlord, this is not a feasible alternative for Verizon Wireless’s facility.
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7. Trend Micro Address: 10101 North De Anza Boulvard Elevation: 240 feet Zoning: Heart of the City – CG, Res
Verizon Wireless reviewed placement of a facility at this commercial building located 0.45 miles northwest of the Proposed Facility and 15 feet higher in elevation. Verizon Wireless RF engineers determined that a facility at this location would cause interference with Verizon Wireless’s existing facility at the Apple Campus one-half mile north of this location. Additionally, a rooftop facility at this location could not provide service to the gap area. As shown in the coverage map below, such a facility would duplicate existing coverage, would not provide needed in-building coverage to the eastern and southern portion of the gap area and would not provide in-vehicle service to the southern portion of the gap area. Due to RF interference concerns and insufficient radio frequency propagation, this is not a feasible alternative for Verizon Wireless’s facility.
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12
Coverage Provided by a Facility
at Trend Micro
10101 North De Anza Boulevard
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New Structures in Non-Residential Areas Identifying no feasible opportunities for mounting its facility on an existing structure in a non-residential area, Verizon Wireless next explored placement of a new structure at a non-residential location with sufficient ground space, and identified the following six locations.
8. Civic Center (Proposed Facility) Address: 10800 Torre Avenue Elevation: 225 feet Zoning: P-BA (Public Building)
Verizon Wireless proposes to mount six panel antennas on a new stealth treepole structure next to a parking lot at the northeast corner of the Cupertino Civic Center. This location was favored at a July 16, 2013 City Council study session. The treepole is designed to resemble a eucalyptus tree, with numerous arced branches supporting faux foliage to disguise the antennas, which will be covered with leaf socks for further concealment. The treepole will allow for future collocation by another wireless carrier, as encouraged in the Master Plan. The treepole will be placed within an approximately 1,420 square foot equipment area along with radio equipment and a generator for emergency use. The equipment area will be surrounded by a 10.5 foot wood slat fence. Numerous existing trees of varying type and height will surround the treepole on the Civic Center property and in the Rodrigues Avenue right-of-way, and Verizon Wireless will plant new shrubs and small trees to screen the equipment area. As shown in the following coverage and best server plot maps, antennas at this location provide excellent radio frequency propagation to serve the Significant Gap in coverage and will provide capacity relief for the Verizon Wireless network in Cupertino. This is Verizon Wireless’s preferred alternative for the Proposed Facility.
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14
Coverage Provided by Facility
at Cupertino Civic Center
10800 Torre Avenue
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15
9. Civic Center Quad Plaza Address: 10800 Torre Avenue Elevation: 225 feet Zoning: P-BA Public Building
Verizon Wireless reviewed this location near City Hall and the Library at the Civic Center plaza on Torre Avenue, approximately 400 feet southwest of the Proposed Facility. The lower cover of existing small trees in this highly-trafficked area of the Civic Center does not lend itself to blending or camouflaging of a treepole facility, and a facility at this location would create more visual impacts than the Proposed Facility which is situated next to taller varied trees in a corner of the Civic Center property with much less activity. This plaza location was not favored at the July 16, 2013 City Council study session due to the high level of activity. Due to unfavorable visual impacts, this location is not a less intrusive alternative for Verizon Wireless’s facility.
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10. Civic Center Library Field Address: 10800 Torre Avenue Elevation: 225 feet Zoning: P-BA Public Building
Verizon Wireless reviewed this sports field at the Civic Center located approximately 800 feet south of the Proposed Facility. The lower cover of existing small trees surrounding this high-activity area of the Civic Center does not lend itself to blending or camouflaging of a treepole facility, and a facility at this location would create more visual impacts than the Proposed Facility which is situated next to taller varied trees in a corner of the Civic Center property with much less activity. This sports field location was not favored at the July 16, 2013 City Council study session due to the high level of activity. Due to unfavorable visual impacts, this location is not a less intrusive alternative for Verizon Wireless’s facility.
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17
11. Church Assembly in Cupertino Address: 20075 Bollinger Road Elevation: 225 feet Zoning: BQ – Quasi-Public Building
Verizon Wireless reviewed this location 0.6 miles southeast of the Proposed Facility at a similar elevation. This location is on the southern fringe of the Significant Gap area. Verizon Wireless RF engineers reviewed this location and determined that with antennas placed in a stealth structure of comparable height to that of the Proposed Facility, a facility at this location could not provide sufficient service to the gap area. As shown in the coverage map below, a facility at this location would not provide needed in-building coverage to the northern and western portions of the gap area. Notably, a facility at this location would not provide in-building coverage to the area near the Cupertino Civic Center and the area near the intersection of De Anza Boulevard and Stevens Creek Boulevard. Further, as shown in the best server plot below, a facility at this location would not provide needed capacity offload to exhausted sectors of existing Verizon Wireless facilities. Due to the inability to adequately serve the Significant Gap, this is not a feasible alternative for Verizon Wireless’s facility.
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18
Coverage Provided by a Facility
at Church Assembly of Cupertino
20075 Bollinger Road
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19
12. Church of Jesus Christ of Latter Day Saints Address: 20125 Bollinger Road Elevation: 225 feet Zoning: BQ – Quasi-Public Building
Verizon Wireless reviewed this location at the Civic Center located 0.6 miles southeast of the Proposed Facility at a similar elevation. Verizon Wireless learned that it is the national policy of the Church of Jesus Christ of Latter Day Saints not to entertain siting of wireless facilities on church property. Lacking a willing landlord, this is not a feasible location for Verizon Wireless’s facility.
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20
13. Wilson Park Address: 19784 Wintergreen Drive Elevation: 210 feet Zoning: PR – Public Park
Verizon Wireless reviewed this public park, suggested by the appellant of the Proposed Facility, located 0.5 miles east of the Proposed Facility and 15 feet lower in elevation. This location is located at the eastern fringe of the Significant Gap area. Verizon Wireless RF engineers reviewed this location and determined that with antennas placed in a stealth structure of comparable height to that of the Proposed Facility, a facility at this location could not provide service to the gap area. As shown in the coverage map below, a facility at this location would not provide needed in-building coverage to the northern and western portions of the gap area. Notably, a facility at this location would not provide in-building coverage to the area near the intersection of De Anza Boulevard and Stevens Creek Boulevard. Further, as shown below, a facility at this location would not provide needed capacity offload to exhausted sectors of the existing Verizon Wireless Apple facility. Due to the inability to adequately serve the Significant Gap, this is not a feasible alternative for Verizon Wireless’s facility.
287
21
Coverage Provided by a Facility
at Wilson Park
19784 Wintergreen Drive
288
22
Residential Areas
In reviewing the vicinity of the Significant Gap for tall buildings and raw land locations
with available space for a wireless facility, Verizon Wireless investigated the following four
locations but determined that residential zoning or residential uses precludes placement of a
wireless facility under the Code or that the residential location is disfavored under the Master
Plan. In addition, Verizon Wireless reviewed a network of small cells to serve the Significant
Gap.
14. Cupertino City Center Apartments Address: 20350 Stevens Creek Boulevard Elevation: 250 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed this five-story apartment building located 0.15 miles northwest of the Proposed Facility and 15 feet greater in elevation. As residential areas are less favored for placement of wireless facilities under the Master Plan, this is not a less intrusive alternative for Verizon Wireless’s facility.
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23
15. Montebello Building Address: 20488 Stevens Creek Boulevard Elevation: 235 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed this eight-story apartment building located 0.25 miles northwest of the Proposed Facility and 10 feet greater in elevation. As residential areas are less favored for placement of wireless facilities under the Master Plan, this is not a less intrusive alternative for Verizon Wireless’s facility.
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16. Biltmore Apartments Address: 20030 Stevens Creek Boulevard Elevation: 210 feet Zoning: Heart of the City – CG, OP, Res
Verizon Wireless reviewed this new three-story apartment complex located 0.3 miles northeast of the Proposed Facility and 15 feet lower in elevation. As residential areas are less favored for placement of wireless facilities under the Master Plan, this is not a less intrusive alternative for Verizon Wireless’s facility.
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17. Lamonico Property Address: 20445 Bollinger Road (approximate) Elevation: 255 feet Zoning: R3 – Residental
Verizon Wireless reviewed this undeveloped parcel located 0.5 miles south of the Proposed Facility and 30 feet greater in elevation. As wireless facilities are not allowed in residential districts under the Code, this is not a feasible alternative for Verizon Wireless’s facility.
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18. Small Cell Network Address: Various Elevation: Various Zoning: Verious Verizon Wireless considered placement of new small facilities in the right-of-way to serve the Significant Gap area. Such small facilities have a much smaller coverage footprint than the Proposed Facility, and Verizon Wireless RF Engineer Brian Ung determined that 12 such small facilities evenly distributed across the breadth of the Significant Gap would be required to achieve the coverage and network capacity offload provided by the Proposed Facility. Utilities are placed underground in most streets within the area of the Significant Gap, eliminating opportunities to place small facilities where they are needed. Given the size of the Significant Gap and limited opportunities for placement of small wireless facilities, placement of 12 such facilities is neither a feasible nor less intrusive alternative to serve this Significant Gap.
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Conclusion
Verizon Wireless has investigated 18 alternatives for the placement of its wireless facility to serve a Significant Gap in coverage in the Civic Center and surrounding area of Cupertino. Based upon the preferences identified in the Cupertino Municipal Code and Wireless Master Plan, the Proposed Facility, placing a stealth treepole on a non-residential location, clearly constitutes the least intrusive location for Verizon Wireless’s facility under the values expressed by City of Cupertino regulations.
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NOTICE OF DEVELOPMENT PROPOSAL
For Additional Information:
Submit comments at the City of Cupertino’s website at www.cupertino.org/planning or by email at: planning@cupertino.org.
Contact Colin Jung in the Planning Division at (408) 777-4843 or by email at colinj@cupertino.org.t
Visit the Planning Department Monday- Thursday: 7:30 a.m.- 5:30 p.m., and Friday: 7:30 a.m.-4:00 p.m., at: City Hall, 10300 Torre Avenue
PROJECT DESCRIPTION:
369-31-033
APPLICATION NOs.:
DP-2014-07, ASA-2014-10, EXC-2014-12
APPLICANT: Jenny Blocker (Verizon Wireless)
PUBLIC HEARING:
Development Permit (DP-2014-07) and Architectural and Site Approval (ASA-2014-10) to
allow a personal wireless service facility, consisting of six panel antennas mounted on
an 80 Ğ. tall treepole designed for collocation, and an enclosed base equipment station and
emergency power generator near City Hall.
Planning Commission - Tuesday, August 25, 2015 *,
6:45 p.m @ Community Hall, 10350 Torre Avenue
Next to Cupertino Library
* Agenda is subject to change. Please contact the Planning Department or the City’s website
at www.cupertino.org/agenda to confirm the hearing/meeting date
.
LOCATION:10300 Torre Avenue
The City of Cupertino’s Community Development Department
has recieved an application for a permit at this property
APN:
Height Exception (EXC-2014-12) to allow six panel antennas to be mounted at a height of
66 feet, where 55 feet is allowed, on an 80 foot tall treepole for a personal wireless service
facility.
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1119 Name:
Status:Type:Reports by Council and Staff Agenda Ready
File created:In control:9/29/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: PG&E Community Pipeline Safety Initiative and removal of hazardous trees throughout the
City and within themed areas of the Heart of the City Specific Plan
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:PG&ECommunityPipelineSafetyInitiativeandremovalofhazardoustrees
throughout the City and within themed areas of the Heart of the City Specific Plan
Receive staff and PG&E presentation
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PUBLIC WORKS DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3354 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
PG&E Community Pipeline Safety Initiative and removal of hazardous trees
throughout the City and within themed areas of the Heart of the City Specific Plan.
Recommended Actions
Receive staff and PG&E presentation.
Background
To ensure the safety of residents and the community, PG&E recently completed a
physical review of their approximate 7,800 feet of gas transmission lines in Cupertino.
In this review, PG&E completed a variety of activities that included pressure testing
and leak surveys and, if needed, the installation of automated gas valves or replacement
of gas lines. Also surveyed were the areas above and around the pipelines. These areas
are important because first responders and maintenance crews servicing the pipeline
need safe and adequate access. A key focus of this surface survey is to inspect trees in
the vicinity of the pipeline to ensure tree roots are not at risk of damaging the pipe.
With the review complete, PG&E has recommended that five trees be removed within
the City right-of-way. Upon receipt of this recommendation, staff then worked with
PG&E to jointly complete a tree-by-tree review of each tree recommended for removal
and staff agrees that these five public trees should be removed at this time. A map
showing the public tree locations will be provided prior to the Council meeting. The
five trees identified for removal are:
2 Live Oak trees on Stelling Road, just north of Stevens Creek Blvd
1 Flowering Pear tree on Stevens Creek Blvd, just east of De Anza Blvd
1 Ash tree on Stevens Creek Blvd, just west of Finch Avenue
1 Ash tree on Stevens Creek Blvd, at Wolfe Road
There are an additional 84 trees that have been reviewed and are determined to be
manageable and pose no safety threat at this time. On private property, PG&E is
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evaluating up to 166 trees for potential removal due to safety considerations. It is likely
that this number will be reduced upon further review.
PG&E’s review, and recommendations for tree removals, was based on the following
tree-by-tree characteristics:
Distance from the pipeline to the tree
Tree diameter at breast height
Pipeline coating type
Ability to access the pipeline for patrols
Ability to access the pipeline for emergency response
Depth of pipe
Tree species
Potential for pipeline corrosion from tree roots
Soil instability
Most recommended removals are due to existing tree root systems causing potential
damage to the coating on the gas pipelines. Each species of tree has varying
characteristics that can cause this damage, but when damage does occur, the pipeline is
more susceptible to corrosion.
As trees are removed, replanting of the same tree species at the same location will
typically not occur due to the likelihood of recreating the same risk condition in the
future. At many other locations, replacement trees will not be planted at all because
there is insufficient room to replant any type of tree without posing future risk to the
pipeline alignment.
Three of the five trees identified for removal are located within the Heart of the City
Specific Plan (Plan). Because one segment of gas transmission line is on the south side of
Stevens Creek Boulevard, the species of any trees to be replanted is dictated by the Plan.
Trees could be replanted in locations slightly further away from the gas pipeline,
however, the unique characteristics of the species is not compatible with the long-term
proximity to the pipe. The one Flowering Pear tree and two Ash trees identified for
removal will not be replaced due to the incompatible species dictated by the Plan. Staff
has researched and located replacement tree species that are substantially similar in
structure and aesthetics to the species required within the Plan, however, as noted
above, the trees are currently prohibited by the Plan.
Municipal code chapter 14.12 Trees requires public utilities to apply for a permit to
remove trees from the right-of-way. The City may approve or deny the request and
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additionally may require reimbursement to the City for expenses to replant street trees ,
or in this case, PG&E may replant trees as appropriate. The reimbursement, or in lieu
fee, that would be paid to the City may include the cost of the new tree, the cost for the
planting and initial maintenance period, and the value of the removed tree. These fees
will be determined by staff on a tree-by-tree basis.
In addition to the coordination that has already occurred between PG&E and City staff,
PG&E will provide direct outreach to residents within the area of all safety work. This
will include the noticing of private tree removals, coordination of PG&E work on
private property with the owner, preservation of private property and any replanting of
private trees.
Sustainability Impact
Any loss of a tree is significant. Some losses will be mitigated over time as new trees
mature. However, to ensure gas line safety, many locations, both public and private,
will remain without trees.
Fiscal Impact
None
____________________________________
Prepared by: Roger Lee, Assistant Director of Public Works
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments: None
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1128 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:9/30/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Preparation for 2015/16 Wet Weather Season
Sponsors:
Indexes:
Code sections:
Attachments:
A - NOAA October-December Precipitation Outlook
Action ByDate Action ResultVer.
City Council10/6/20151
Subject: Preparation for 2015/16 Wet Weather Season
1.Receive staff presentation; and
2.AmendapprovedFY15/16OperatingBudget(StormDrainMaintenance100-85-818)by
an additional amount of $150,000 for increased 2015/16 wet weather season preparation.
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Attachment A
303
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1123 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:9/29/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Cancellation of Regular Council meeting on Monday, November 2, call for Special Council
meeting for Tuesday, November 3, and direction to staff to amend the Cupertino Municipal Code
regarding Council meetings that fall on Election Tuesdays
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:CancellationofRegularCouncilmeetingonMonday,November2,callforSpecial
CouncilmeetingforTuesday,November3,anddirectiontostafftoamendtheCupertino
Municipal Code regarding Council meetings that fall on Election Tuesdays
a.ConsidercancellingtheRegularCouncilmeetingofMonday,November2andcallaSpecial
CouncilmeetingforTuesday,November3;andb.DirectstafftoamendCupertinoMunicipal
Code Section 2.04.010 regarding regular Council meetings that fall on Election Tuesdays
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OFFICE OF THE CITY CLERK
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: October 6, 2015
Subject
Cancellation of Regular Council meeting on Monday, November 2, call for Special
Council meeting for Tuesday, November 3, and direction to staff to amend the
Cupertino Municipal Code regarding Council meetings that fall on Election Tuesdays.
Recommended Action
a. Consider cancelling the Regular Council meeting of Monday, November 2 and call a
Special Council meeting for Tuesday, November 3; and b. Direct staff to amend
Cupertino Municipal Code Section 2.04.010 regarding regular Council meetings that fall
on Election Tuesdays.
Discussion
Cupertino Municipal Code 2.04.010 states that “City Council meetings that fall on any
Election Tuesday shall automatically be moved to the first Monday of the month.”
Therefore, the first Regular Council meeting in November is Monday, November 2. The
City of Cupertino holds its General Municipal Elections in even-numbered years and
consequently does not have an election on Tuesday, November 3 as 2015 is an odd-
numbered year. The only jurisdictions that are holding an election on November 3 are
the City of Los Altos, Orchard School District, and the Union School District.
Since Cupertino has no election this year, Council may wish to cancel the Regular
meeting on November 2 and call a Special meeting on Tuesday, November 3 which is
the usual day for City Council to meet. Council may also wish to amend the Cupertino
Municipal Code to state that City Council meetings that fall on Election Tuesday in
even-numbered years shall automatically be moved to the first Monday of the month.
If this is Council’s direction, one note to make is that the Election Day in 2016 is
November 1, therefore, the first Monday of the month would be November 7 and the
next Regular Council meeting would be the following week on November 15.
Sustainability Impact: None
Fiscal Impact: None
305
_____________________________________
Prepared by: Grace Schmidt, City Clerk
Approved for Submission by: David Brandt, City Manager
Attachments:
None
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-0742 Name:
Status:Type:Reports by Council and Staff Agenda Ready
File created:In control:2/24/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Report on Committee assignments and general comments
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
City Council10/6/20151
Subject: Report on Committee assignments and general comments
Report on Committee assignments and general comments
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:115-1126 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:9/29/2015 City Council
On agenda:Final action:10/6/2015
Title:Subject: Approval of the City of Cupertino entering into an Antenna Ground Lease between the City
and GTE Mobilnet of California Limited Partnership, a California Limited Partnership, d/b/a Verizon
Wireless and Receive and File the Letter from Independent Bond Counsel, Brian Quint Finding no Tax
Implications from the Lease
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Opinion Letter Thimmig Brian Cupertino Public Facilities Corporation
Action ByDate Action ResultVer.
City Council10/6/20151
Subject:ApprovaloftheCityofCupertinoenteringintoanAntennaGroundLeasebetween
theCityandGTEMobilnetofCaliforniaLimitedPartnership,aCaliforniaLimitedPartnership,
d/b/aVerizonWirelessandReceiveandFiletheLetterfromIndependentBondCounsel,Brian
Quint Finding no Tax Implications from the Lease
a.ReceiveandFiletheLetterfromIndependentBondCounsel,BrianQuintFindingnoTax
ImplicationsfromtheLease;andb.ProvideconsenttotheCityofCupertinotopermitthe
CitytoenterintoanAntennaGroundLeasebetweentheCityandGTEMobilnetofCalifornia
Limited Partnership, a California Limited Partnership, d/b/a Verizon Wireless
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1
CUPERTINO PUBLIC FACILITIES CORPORATION
STAFF REPORT
Meeting: October 6, 2015
Subject
Approval of the City of Cupertino entering into an Antenna Ground Lease between the
City and GTE Mobilnet of California Limited Partnership, a California Limited
Partnership, d/b/a Verizon Wireless.
Recommended Action
1. Receive and File the Letter from Independent Bond Counsel, Brian Quint Finding no
Tax Implications from the Lease.
2. Provide consent to the City of Cupertino to permit the City to enter into an Antenna
Ground Lease between the City and GTE Mobilnet of California Limited Partnership,
a California Limited Partnership, d/b/a Verizon Wireless
Background
The Civic Center is the subject of a lease agreement dated May 1, 2012 between the
Cupertino Public Facilities Corporation and the City of Cupertino. The lease agreement
is part of the security for Certificates of Participation issued by the City for certain
improvements. In order for the City to lease a portion of the Civic Center area to a third
party the Cupertino Public Facilities Corporation must approve of the City entering into
the lease.
Paragraph 8.2 of the Cupertino Public Facilities Corporation (“Corporation”) allows the
City to sublease the Civic Center property, but only with the consent of the Corporation
In addition, the Corporation must obtain an opinion letter from independent bond
counsel that the lease will not result in tax implications for the holders of the
Certificates of Participation. The bond counsel opinion letter making those findings is
attached as Exhibit “A” to this staff report.
Sustainability Impact
There is no sustainability impact by this action.
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Fiscal Impact
Should the Cupertino Public Facilities Corporation not approve the lease and receive
and file the accompanying opinion letter the City will not receive the financial benefits
of the lease.
_____________________________________
Prepared by: Rick Kitson, Public Affairs Director
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Opinion Letter from Brian Quint, Quint & Thimmig, dated June 17, 2105
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Quint & Thimmig LLP
Attorneys at Law
900 Larkspur Landing Circle, Suite 270
Larkspur, CA 94939-1726
Phone: 415/925-4200
Fax: 415/925-4201
June 17, 2015
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Cupertino Public Facilities Corporation
10300 Torre Avenue
Cupertino, California 95014
The Bank of New York Mellon Trust Company, N.A.
400 South Hope Street, Suite 400
Los Angeles, California 90071
Re: Antenna Ground Lease, by and between the City of Cupertino and GTE Mobilenet of
California Limited Partnership, d/b/a Verizon Wireless
Ladies and Gentlemen:
We have been advised that the City of Cupertino (the “City”) contemplates entering into
an Antenna Ground Lease, by and between the City and GTE Mobilenet of California Limited
Partnership, d/b/a Verizon Wireless (the “Ground Lease”), relating to a portion of the property
(the “Property”) that is the subject of a lease agreement, dated as of May 1, 2012, by and
between the Cupertino Public Facilities Corporation (the “Corporation”) and the City (the
“Lease Agreement”). The Corporation has, pursuant to an Assignment Agreement, dated as of
May 1, 2012, by and between the Corporation and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”), assigned certain of its rights under the Lease
Agreement, including its right to receive a portion of the lease payments made by the City
thereunder (the “Lease Payments”), to the Trustee. Pursuant to the Trust Agreement, dated as
of May 1, 2012, by and among the Trustee, the Corporation and the City (the “Trust
Agreement”), the Trustee has executed and delivered certificates of participation (the
“Certificates”) evidencing direct, undivided fractional interests of the owners thereof in the
Lease Payments. The Certificates have been sold to investors. Capitalized terms used, but not
otherwise defined, herein shall have the meanings ascribed thereto in the Trust Agreement.
Pursuant to Section 8.2 of the Lease Agreement, the City may sublease the Property, or
any portion thereof, but only with the satisfaction of certain conditions, including the receipt of
a written opinion of Bond Counsel, which shall be an Independent Counsel, stating that such
sublease does not cause the interest components of the Lease Payments to become subject to
federal income taxes or State personal income taxes. This opinion is rendered in satisfaction of
that opinion requirement.
In connection with the following opinion, we have reviewed the Ground Lease, the
Lease Agreement and such other information and documents as we consider necessary in the
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City of Cupertino June 17, 2015
Cupertino Public Facilities Corporation Page 2
The Bank of New York Mellon Trust Company, N.A.
circumstances. As to questions of fact material to our opinion, we have relied upon such
representations and certifications of public officials and others furnished to us and such other
documents as we deemed necessary in the circumstances, without undertaking to verify such
facts by independent investigation.
Based upon the foregoing, we are of the opinion, as of the date hereof, that the execution
of the Ground Lease will not cause the interest components of the Lease Payments to become
subject to federal income taxes or State personal income taxes.
This opinion is rendered solely for the benefit of the addressees hereof, and may not be
relied upon by any other person without our prior written consent.
Respectfully submitted,
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