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11-01-2016 Searchable packetCITY OF CUPERTINO AGENDA Tuesday, November 1, 2016 10350 Torre Avenue, Council Chamber CITY COUNCIL 6:45 PM PLEDGE OF ALLEGIANCE ROLL CALL CEREMONIAL MATTERS AND PRESENTATIONS 1.Subject: Recognize student artists for participating in phase 2 of the Citywide “Energized by Art” Utility Box Pilot Project Recommended Action: Present proclamations 2.Subject: Presentation regarding Platinum Level Beacon Spotlight Award for Energy and Best Practices given to Cupertino from Institute of Local Government Recommended Action: Receive presentation regarding Platinum Level Beacon Spotlight Award for Energy and Best Practices given to Cupertino from Institute of Local Government POSTPONEMENTS ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the council on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the council from making any decisions with respect to a matter not listed on the agenda. CONSENT CALENDAR Unless there are separate discussions and/or actions requested by council, staff or a member of the public, it is requested that items under the Consent Calendar be acted on simultaneously. 3.Subject: Approve the October 18 City Council minutes Recommended Action: Approve the October 18 City Council minutes A - Draft Minutes Page 1 CITY OF CUPERTINO 1 November 1, 2016City Council AGENDA 4.Subject: Amend interview dates to Monday and Tuesday, January 30 and 31 for commissions with terms expiring January 30, 2017 beginning at 5:00 p.m. Recommended Action: Amend interview dates to Monday and Tuesday, January 30 and 31 for commissions with terms expiring January 30, 2017 beginning at 5:00 p.m. Staff Report A - Amended Appointments List and Notice of Commission Terms Expiring in 2017 5.Subject: Approve the First amendment of the Employment Contract for the City Attorney and Appointed Employee’s Compensation Program. Recommended Action: 1.Adopt Resolution No. 16-111 approving the First Amendment to the Employment Contract for the City Attorney. 2.Adopt Resolution No. 16-112 approving Amendment to the Appointed Employee’s Compensation Program. Staff Report A - Draft Resolution Amending Employment Contract B - Employment Contract for City Attorney C - Redlined Employment Contract for City Attorney D - Draft Resolution Amending Appointed Employees' Compensation Program E - Appointed Employees' Compensation Program F - Redlined Appointed Employees' Compensation Program 6.Subject: Approve the Fourth amendment of the Employment Contract for the City Manager and Appointed Employees’ Compensation Program. Recommended Action: 1. Adopt Resolution No. 16-113 approving the Fourth Amendment to the Employment Contract for the City Manager; and 2. Adopt Resolution No. 16-114 amending the Appointed Employees' Compensation Program Staff Report A - Draft Resolution Amending Employment Contract B - Employment Contract for City Manager C - Redlined Employment Contract for City Manager D - Draft Resolution Amending Appointed Employees' Compensation Program E - Appointed Employees' Compensation Program F - Redlined Appointed Employees' Compensation Program 7.Subject: New contracts and contract amendments for professional building department services for Apple Campus 2 Page 2 CITY OF CUPERTINO 2 November 1, 2016City Council AGENDA Recommended Action: 1) Authorize the City Manager to: a. Execute Agreement with West Coast Code Consultants, Inc. for professional building department services at Apple Campus 2 for a total amount not to exceed $821,720.00; and b. Execute Agreement with CSG Consultants, Inc. for plan review services at Apple Campus 2 for a total amount not to exceed $1,120,000.00; and c. Execute the Second Amendment to Agreement 14-028 with 4LEAF, Inc. for Apple Campus 2 Phase 1 building inspection services and public works inspection services to increase the previously authorized contract amount by $4,761,376.00 for a total amount not to exceed $15,126,478.00; and d. Execute the First Amendment to Agreement 15-146 with 4LEAF, Inc. for Apple Campus 2 Phase 2 building inspection services to increase the previously authorized contract amount by $567,531.00 for a total amount not to exceed $914,787.00; and 2) Authorize the City Manager to execute contract amendments to the extent that the costs are recovered from the project applicant Staff Report A - Draft Agreement – WC3 for Apple Campus 2, 10-13-2016 B - Draft Agreement – CSG for Apple Campus 2, 10-20-2016 C - Draft Second Amendment – 4LEAF for Apple Campus 2, 10-20-2016 D - Draft First Amendment – 4LEAF for Apple Campus 2, 10-20-2016 SECOND READING OF ORDINANCES 8.Subject: Second Reading of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City Recommended Action: Conduct the second reading and enact Ordinance No. 16-2154: "An Ordinance of the City Council of the City of Cupertino to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City" Staff Report A - Draft Ordinance B - Existing Ordinance C - FEMA Letter PUBLIC HEARINGS 9.Subject: Appeal of Kimberly Sandstrom Appeal Regarding Eligibility to Purchase Below Market Rate (BMR) Unit (Continued from October 4) Recommended Action: Approve Resolution No. 16-101 regarding the appeal of Ms. Kimberly Sandstrom and affirming the recommendation of the Housing Commission regarding the eligibility of Ms. Sandstrom to purchase a BMR unit Page 3 CITY OF CUPERTINO 3 November 1, 2016City Council AGENDA Staff Report A- Summary of Conflict of Interest Investigation B- Draft Resolution C- Housing Commission Resolution 16-06 D- Excerpts from BMR Manual Regarding Income Calculation E- Referenced Regluations (24 CFR 5.609(b) and (c) F- Technical Guide for Determining Income G- Attachments and Other Documents Provided by Appellant H - Sandstrom presentation 10.Subject: Amendment to Title 16, Buildings and Construction, of the Cupertino Municipal Code adopting the California Buildings Standards Code and Fire Code and making local exceptions as mandated by the State of California. Recommended Action: 1. Conduct the first reading of Ordinance No. 16-2155: an “Ordinance of the City Council of the City of Cupertino Amending Chapters 16.02, 16.04, 16.06, 16.16, 16,24, 16.40, 16.54, 16.58, and 16.80 Repealing Chapter 16.42 of Title 16 of the Cupertino Municipal Code adopting the 2016 California Building, Residential, Electrical, Mechanical, Plumbing, Energy, Historical, Fire, Existing Building Code, Green Building Standards Codes with Certain Exceptions, Modifications, and Additions”; and 2. Adopt Resolution No. 16-115 making factual findings with respect to the local geological, topographical, and climatic conditions necessary to make local amendments to the California Building Standards Code. Staff Report A - Draft Ordinance - Chapter 16 Bldg and Fire Code B - Draft - Resolution for Findings and Justification.docx 11.Subject: Extension of the moratorium on the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino and the introduction of an ordinance amending Chapter 19.08, Definitions, of the Municipal Code to add definitions of “financial institutions” and “banks” that expressly exclude payday lending and check cashing businesses with the intent to disallow such uses from operating with the City of Cupertino. Application No(s): MCA-2016-04; Applicant(s): City of Cupertino; Location: Citywide Page 4 CITY OF CUPERTINO 4 November 1, 2016City Council AGENDA Recommended Action: 1.Enact Ordinance No. 16-2156: “An Interim Urgency Ordinance of the City Council of the City of Cupertino extending a Temporary Moratorium on the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino pending completion of an update to the City’s Zoning Code.” 2.Conduct the first reading of Ordinance No. 16-2157: “An Ordinance of the City Council of the City of Cupertino Amending the Cupertino Municipal Code, Title 19, Zoning, Section 19.08.030, entitled “Definitions” to add the definition of “financial institutions” and “banks” to expressly exclude payday lending and check cashing businesses with the intent to disallow such uses from operating with the City of Cupertino” Staff Report A - Draft Interim Urgency Ordinance No. 16-2156 B - Draft Ordinance No. 16-2157 C - Coalition Against Payday Preditors Letter (March 2016) D - Interim Urgency Ordinance No. 16-2152 E - Planning Commission Resolution No. 6818 F - Letter of Support from CAPP (October 2016) ORDINANCES AND ACTION ITEMS REPORTS BY COUNCIL AND STAFF 12.Subject: Report on Committee assignments and general comments Recommended Action: Report on Committee assignments and general comments ADJOURNMENT Page 5 CITY OF CUPERTINO 5 November 1, 2016City 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 6 CITY OF CUPERTINO 6 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1889 Name: Status:Type:Ceremonial Matters & Presentations Agenda Ready File created:In control:8/3/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Recognize student artists for participating in phase 2 of the Citywide “Energized by Art” Utility Box Pilot Project Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council11/1/20161 Subject:Recognizestudentartistsforparticipatinginphase2oftheCitywide“Energizedby Art” Utility Box Pilot Project Present proclamations CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™7 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2115 Name: Status:Type:Ceremonial Matters & Presentations Agenda Ready File created:In control:10/24/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Presentation regarding Platinum Level Beacon Spotlight Award for Energy and Best Practices given to Cupertino from Institute of Local Government Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. City Council11/1/20161 Subject:PresentationregardingPlatinumLevelBeaconSpotlightAwardforEnergyandBest Practices given to Cupertino from Institute of Local Government ReceivepresentationregardingPlatinumLevelBeaconSpotlightAwardforEnergyandBest Practices given to Cupertino from Institute of Local Government CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™8 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1332 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:1/7/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Approve the October 18 City Council minutes Sponsors: Indexes: Code sections: Attachments:A - Draft Minutes Action ByDate Action ResultVer. City Council11/1/20161 Subject: Approve the October 18 City Council minutes Approve the October 18 City Council minutes CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™9 DRAFT MINUTES CUPERTINO CITY COUNCIL Tuesday, October 18, 2016 SPECIAL CITY COUNCIL MEETING ROLL CALL At 5:00 p.m. Mayor Barry Chang called the City Council meeting to order in Cupertino City Hall Conference Room A, 10300 Torre Avenue. Present: Mayor Barry Chang, Vice Mayor Savita Vaidhyanathan, and Councilmembers Darcy Paul, Rod Sinks and Gilbert Wong. Absent: None. CLOSED SESSION 1. Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Manager; Appointed Employees Compensation Program Mayor Chang announced that Council gave direction to staff. 2. Subject: Public Employee Performance Evaluation (Gov't Code Section 54957). Title: City Attorney; Appointed Employees Compensation Program Mayor Chang announced that Council gave direction. 3. Subject: Conference with Labor Negotiators (Gov't Code Section 54957.6); Agency designated representatives: City Manager, Director of Administrative Services; Employee organizations: Unrepresented (Management and Confidential) Employees' Compensation Program Mayor Chang announced that Council gave the following direction: equity adjustments 5% increase in 2016, 4% in 2017, and 3% in 2018, all increases are retroactive. ADJOURNMENT REGULAR CITY COUNCIL MEETING 10 City Council Minutes October 18, 2016 2 PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Barry Chang convened the Regular City Council meeting in Cupertino Community Hall Council Chambers, 10350 Torre Avenue and led the Pledge of Allegiance. ROLL CALL Present: Mayor Barry Chang, Vice Mayor Savita Vaidhyanathan, and Councilmembers Darcy Paul, Rod Sinks and Gilbert Wong. Absent: None. Council concurred to reorder the agenda to take up item number 2 first. CEREMONIAL MATTERS AND PRESENTATIONS 2. Subject: Presentation by Toyokawa Sister City Committee regarding recent trip Recommended Action: Receive the presentation by Toyokawa Sister City Committee regarding recent trip First Vice President Sharon Fong from the Toyokawa Sister City Committee and the students from the 2016 student delegation shared their experiences from the recent trip and presented Council with the gift of a book. Council received the presentation and gift. STUDY SESSION 1. Subject: Study Session regarding Sustainable Strategies for Recycling and Waste Management Recommended Action: 1. Receive information and public comment at study session; 2. Direct staff to investigate sustainable strategies that strengthen solid waste reduction measures as identified in the City of Cupertino Climate Action Plan (CAP), and; 3. Solicit future input from the Sustainability Commission in evaluating strategies that maximize the amount of waste products that are recycled, reused or composted, and; 4. As determined necessary, schedule for Council consideration the amendment of applicable chapters of the City of Cupertino Municipal Code to enforce solid waste reduction measures, and; 5. As determined necessary, schedule for Council consideration the authorization and negotiation of agreements between the City of Cupertino and potential recycling/organic processing sites. 6. As determined necessary, schedule for Council consideration amendments to the Franchise Agreement between the City of Cupertino and Recology Cupertino for Collection and Processing of 11 City Council Minutes October 18, 2016 3 Recyclable and Compostable Materials, and the Collection and Disposal of Garbage (Franchise Agreement) Written communications for this item included a staff PowerPoint presentation. Assistant Director of Public Works Roger Lee reviewed the staff report via a PowerPoint presentation. Council received the information regarding sustainable strategies for recycling and waste management. There were no speakers for public comment. Councilmember Paul excused himself from the rest of the meeting and left the dais. Council recessed from 8:19 p.m. to 8:40 p.m. CEREMONIAL MATTERS AND PRESENTATIONS - Continued 3. Subject: Library Commission Fiscal Year 2016-17 Work Plan presentation Recommended Action: Receive the Library Commission Fiscal Year 2016-17 Work Plan presentation Written Communications for this item included a PowerPoint presentation. Library Commission Chair Jerry Liu and Commissioners Ann Stevenson and Gopal Kumar gave a presentation on the Library Commission Work Plan for FY 2016-17. Council received the presentation. 4. Subject: Cupertino Safe Routes to School Program Update Recommended Action: Receive Cupertino Safe Routes to School Program Update Written communications for this item included a staff PowerPoint presentation. Safe Routes to School Coordinator Chelsea Biklen gave an update on the Cupertino Safe Routes to School Program via a PowerPoint presentation. Council received the update. 5. Subject: Presentation from the Taipei Friendship City Committee regarding a Smart City Conference in May of 2017 Recommended Action: Receive the presentation 12 City Council Minutes October 18, 2016 4 A representative from the Taipei Friendship City Committee gave a presentation regarding a Smart City Conference in May 2017. Council received the presentation. POSTPONEMENTS - None ORAL COMMUNICATIONS Mark Brodsky talked about traffic congestion in the area and a Transnet airspace solution at Vallco. Kimberly Sandstrom talked about her appeal on being excluded from Below Market Rate (BMR) housing. Usha Srinivasan, Founder and President of Sangam Arts talked about the upcoming Mosaic America music and dance presentation at De Anza Performing Arts Center on November 4 and 5. Liana Crabtree talked about the 2015 Council resolution adopting the GPA addendum regarding height in special neighborhoods. Lisa Warren talked about a mailer for Measure C speaking to heights in the neighborhoods. (Distributed written comments). Ignatius Ding talked about the 2015 Council resolution adopting the GPA addendum regarding height in special neighborhoods. Liang Chao talked about Measure C on the upcoming November ballot. CONSENT CALENDAR Sinks moved and Vaidhyanathan seconded to approve the items on the Consent Calendar as presented with the exception of item number 7 which was pulled for discussion. Wong offered a friendly amendment to also pull item number 10. The friendly amendment was accepted. Ayes: Chang, Vaidhyanathan, Sinks and Wong. Noes: None. Abstain: None. Absent: Paul. 6. Subject: Approve the October 4 City Council minutes Recommended Action: Approve the October 4 City Council minutes 13 City Council Minutes October 18, 2016 5 7. Subject: Request from the Taipei Friendship City Committee for City to Sponsor a Smart City Conference in May of 2017 Recommended Action: Sponsor the proposed Smart City Conference Wong moved and Chang seconded to accept the request from the Taipei Friendship City Committee for the City to sponsor a Smart City Conference in May of 2017. The motion failed with Chang and Wong voting yes, Sinks and Vaidhyanathan voting no and Paul absent. Wong moved and Chang seconded to continue the request from the Taipei Friendship City Committee for the City to sponsor a Smart City Conference in May of 2017 to a meeting with all Councilmembers present. Vaidhyanathan offered a friendly amendment to see a more concrete plan from the sponsor. The friendly amendment was accepted. The motion carried with Paul absent. 8. Subject: Authorize an additional full-time equivalent (FTE) position in the City Attorney's Office Recommended Action: Adopt Resolution No. 16-106 to: 1) Increase FTE in the City Attorney's Office from 3 FTE to 4 FTE by adding a Deputy City Attorney position; and 2) Authorize a budget adjustment of $60,000 in the City Attorney's program budget 9. Subject: Adopt resolution increasing the employer's contribution for medical and hospitalization insurance for employees under the Unrepresented group, Cupertino Employees' Association, Operating Engineers, Local Union No. 3, Appointed, Elected Officials, and retired annuitant groups. Recommended Action: Adopt Resolution No. 16-107 increasing employer's contribution for medical and hospitalization insurance for employees under the Unrepresented, Cupertino Employees' Association, Operating Engineers, Local Union No. 3, Appointed, Elected Officials, and retired annuitant groups 10. Subject: Approve the terms and conditions of employment for the Unrepresented (Management and Confidential) Employees, Appointed Employees, and Elected officials Recommended Action: 1. Adopt Resolution No. 16-108 amending the Compensation Program for the Unrepresented (Management and Confidential) Employees; and 2. Adopt Resolution No. 16-109 amending the Compensation Program for the Appointed Employees; and 3. Adopt Resolution No. 16-110 amending the Compensation Program for the Elected Officials; and 4. Make the necessary budget adjustments to ensure that 14 City Council Minutes October 18, 2016 6 there are sufficient budget appropriations to cover the costs related to changes to the compensation program Written communications for this item included amended resolutions and Compensation Programs. Wong moved and Vaidhyanathan seconded to adopt Resolution No. 16-108 amending the Compensation Program for the Unrepresented (Management and Confidential) employees with the additional amendment to equity adjustments to up to 5% in 2016, 4% in 2017, and 3% in 2018 for management classifications, all increases are retroactive to October 1, 2016; and 2. Adopted Resolution No. 16-109 amending the Compensation Program for the Appointed Employees; and 3. Adopted R esolution No. 16-110 amending the Compensation Program for the Elected Officials; and 4. Approved necessary budget adjustments to ensure that there are sufficient budget appropriations to cover the costs related to changes to the Compensation Program. The motion carried with Paul absent. 11. Subject: Approval of the Third Amendment to Santa Clara Valley Urban Runoff Pollution Prevention Program Memorandum of Agreement to extend its term through one fiscal year beyond the date of termination of the current Municipal Regional Stormwater Permit (estimated 2021) Recommended Action: Authorize the City Manager to execute the Third Amendment (Attachment A) to an Agreement Providing for Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (Attachment B), a multi- jurisdictional Agreement between Santa Clara County, the Santa Clara Valley Water District, and thirteen Santa Clara County municipalities 12. Subject: Application for Alcohol Beverage License for PEFF, LLC (dba Enzo's Restaurant), 21275 Stevens Creek Boulevard, Suite 510 Recommended Action: Recommend approval to the California Department of Alcoholic Beverage Control of the application for Alcohol Beverage License for PEFF, LLC (dba Enzo's Restaurant), 21275 Stevens Creek Boulevard, Suite 510 13. Subject: Application for Alcohol Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way Recommended Action: Recommend approval to the California Department of Alcoholic Beverage Control of the application for Alcohol Beverage License for Genzo Sekine (dba Bacchus Wines), 10643 Larry Way 15 City Council Minutes October 18, 2016 7 SECOND READING OF ORDINANCES - None PUBLIC HEARINGS 14. Subject: Enact an Urgency Ordinance to prohibit non-medical marijuana cultivation, dispensaries, transport and deliveries and commercial cannabis activities within the City of Cupertino. (Location: City-wide; Applicant: City of Cupertino) Recommended Action: That the City Council: 1. Find that the proposed actions are exempt from CEQA; and 2. Enact Interim Urgency Ordinance No. 16-2153 “An Interim Urgency Ordinance of the City Council of the City of Cupertino Establishing a Moratorium on Non-Medical Marijuana Dispensaries, Marijuana Cultivation Facilities, Commercial Cannabis Activities and Marijuana Transport and Deliveries within the City of Cupertino Pending Completion of an Update to the City’s Zoning Code" Written communications for this item included an amended ordinance page and a staff PowerPoint presentation. Principal Planner Piu Ghosh reviewed the staff report via a PowerPoint presentation. City Clerk Grace Schmidt read the title of the ordinance. Wong moved and Sinks seconded to read Interim Urgency Ordinance No. 16-2153 by title only and that the City Clerk’s reading would constitute the only reading thereof. Ayes: Chang, Sinks, Vaidhyanathan and Wong. Noes: None. Abstain: None. Absent: Paul. Wong moved and Sinks seconded to enact Interim Urgency Ordinance No. 16-2153. Ayes: Chang, Sinks, Vaidhyanathan and Wong. Noes: None. Abstain: None. Absent: Paul. ORDINANCES AND ACTION ITEMS 15. Subject: Consideration of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City Recommended Action: Conduct the first reading of Ordinance No. 16-2154: "An Ordinance of the City Council of the City of Cupertino to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City" 16 City Council Minutes October 18, 2016 8 Written communications for this item included an amended ordinance. City Clerk Grace Schmidt read the title of the ordinance. Wong moved and Vaidhyanathan seconded to read Ordinance No. 16-2154 by title only and that the City Clerk’s reading would constitute the first reading thereof. Ayes: Chang, Sinks, Vaidhyanathan and Wong. Noes: None. Abstain: None. Absent: Paul. REPORTS BY COUNCIL AND STAFF 16. Subject: Report on Committee assignments and general comments Recommended Action: Report on Committee assignments and general comments Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 10:37 p.m., Mayor Chang adjourned the meeting. _______________________ Grace Schmidt, City Clerk 17 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2084 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/11/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Amend interview dates to Monday and Tuesday, January 30 and 31 for commissions with terms expiring January 30, 2017 beginning at 5:00 p.m. Sponsors: Indexes: Code sections: Attachments:Staff Report A - Amended Appointments List and Notice of Commission Terms Expiring in 2017 Action ByDate Action ResultVer. City Council11/1/20161 Subject:AmendinterviewdatestoMondayandTuesday,January30and31forcommissions with terms expiring January 30, 2017 beginning at 5:00 p.m. AmendinterviewdatestoMondayandTuesday,January30and31forcommissionswithterms expiring January 30, 2017 beginning at 5:00 p.m. CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™18 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: November 1, 2016 Subject Amend interview dates to Monday and Tuesday, January 30 and 31 for commissions with terms expiring January 30, 2017 beginning at 5:00 p.m. Recommended Action Amend interview dates to Monday and Tuesday, January 30 and 31 for commissions with terms expiring January 30, 2017 beginning at 5:00 p.m. Background On September 6, Council set interviews beginning at 5:00 p.m. on Monday and Tuesday, January 23 and 24 for commissions with terms expiring January 30, 2017. In order to ensure a quorum, Council may amend these dates. The application deadline of 4:30 p.m. on Friday, January 13, 2017 will not change. Sustainability Impact None Fiscal Impact None _____________________________________ Prepared by: Kirsten Squarcia, Deputy City Clerk Reviewed by: Grace Schmidt, City Clerk Approved for Submission by: David Brandt, City Manager Attachments: A – Amended City of Cupertino Local Appointments List and Notice of Vacancies for 2017 19 1 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366 AMENDED LOCAL APPOINTMENTS LIST AND NOTICE OF COMMISSION TERMS EXPIRING IN 2017 NOTICE IS HEREBY GIVEN that residents are encouraged to apply for positions on City commissions that will have vacancies in January of 2017. The application deadline is 4:30 p.m. on Friday, January 13, 2017. Council will conduct interviews beginning at 5:00 p.m. on Monday and Tuesday, January 30 and 31. Commissioners are interviewed and appointed by the City Council, and may serve a total of two consecutive 4-year terms. (The Teen Commission has a different term structure). If a person is appointed to fill an unscheduled vacancy that is less than two years, that partial term is not counted against the term limit. All meetings are open to the public. For more information or to apply for a commission, pleas e contact the City Clerk’s Office, 777-3223 or cityclerk@cupertino.org; or visit the City website at www.cupertino.org/vacancies. AUDIT COMMITTEE - No residency requirement Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Eno Schmidt 5/15/12 (Partial); 1/30/13 1/20/17 Yes Eligibility Requirements: The Committee consists of four or five members serving four -year terms. Two individuals are members of City Council, and a minimum of two and a maximum of three are at large members. The at large members shall not be officials or employees of the City, nor cohabit with as defined by law, nor be related by blood or marriage to any member of the Committee, the City Manager or staff person assigned to the Committee. An Audit Committee at large member is not required to be a Cupertino resident, but the City Council will give priority to individuals who have substantial accounting, audit, or investment experience, preferably in connection with a governmental agency. Powers and Functions: The powers and functions of the Audit Committee shall be as follows: A. Review the annual audit report and management letter; B. Recommend appointment of auditors; C. Review the monthly Treasurer’s report, D. Review City investment policies and internal controls of such policies. The Audit Committee falls under the Political Reform Act of 1974 and financial disclosure is required. 20 2 Meeting Schedule: Regular meetings are held quarterly on the 2nd Thursday of the selected month at 3:00 p.m. at City Hall in Conference Room A. For more information, contact staff liaison Lisa Taitano, (408) 777-3280 or lisat@cupertino.org. BICYCLE PEDESTRIAN COMMISSION - Residency requirement for all five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Pete Heller 1/28/13 1/30/17 Yes Eligibility Requirements: The Commission consists of five members who are residents of the City and shall be appointed by the Council to four-year overlapping terms. None shall be officials or employees of the City nor cohabit with, as defined by law, nor be related by blood or m arriage to, any member of the committee, the City Manager or the staff person or persons assigned to the Commission. Powers and Functions: The function of the Commission is to review, monitor and suggest recommendations for City transportation matters including, but not limited to bicycle and pedestrian traffic, parking, education and recreation within Cupertino. The Bicycle Pedestrian Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held monthly on the third Wednesday at 7 p.m. in City Hall, Conference Room C. For more information, contact staff liaison David Stillman, (408) 777-3249 or davids@cupertino.org. FINE ARTS COMMISSION - Residency Requirement for three out of five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Russell Leong 1/24/11 (Partial, counts as full); 1/28/13 1/30/17 No Rajeswari Mahalingam 5/3/11 (Partial); 1/28/13 1/30/17 Yes Eligibility Requirements: The Commission consists of five members appointed by Council for four- year terms. None of the members shall be employees or officials of the City, nor cohabit with as defined by law, nor be related by blood or marriage to any member of the Commission, the City Manager or staff person assigned to the Commission. At least three shall be Cupertino residents. Powers and Functions: The powers and functions of the Fine Arts Commission are to foster, encourage and assist the realization, preservation and advancement of the fine arts for the benefit of the community. The Fine Arts Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held on the 4th Monday of every other month (odd months) and more often as 21 3 necessary at 7:00 p.m. in City Hall, Conference Room C. For more information, contact staff liaison Catarina Kidd, (408) 777-3214 or finearts@cupertino.org. HOUSING COMMISSION - Residency requirement for three out of five members; Business and financial institution representatives must be located in Cupertino. Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Harvey Barnett 1/28/09; 1/28/13 1/30/17 No Eligibility Requirements: The Cupertino Housing Commission consists of five members appointed by the council to four-year terms. One must be a representative from a Cupertino financial institution and another from a Cupertino business. Housing Commission members who are representatives of a financial institution or a business are not required to be Cupertino residents, but the financial institution and the business represented must be located in Cupertino. The three remaining community members must be residents of Cupertino. Powers and Functions: The commission assists in developing housing policies and strategies, recommends policies for implementation and monitoring of affordable housing projects, helps identify sources of funding for affordable housing and performs other advisory functions authorized by the City Council. The Cupertino Housing Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held at 9:00 a.m., the second Thursday of the month at City Hall, Conference Room C. For more information, contact staff liaison Kerri Huesler, (408) 777-3251 or KerriH@cupertino.org. LIBRARY COMMISSION - Residency requirement for three out of five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Annie Ho 1/28/13 1/30/17 Yes Jerry Liu 1/28/13 1/30/17 Yes Eligibility Requirements: The commission consists of five members appointed by the Council to four-year, overlapping terms. At least three members must be residents of Cupertino. None of the members shall be officials or employees of the City, nor cohabit with, as defined by la w, nor be related by blood or marriage to any member of the Commission, the City Manager or the staff person(s) assigned to this Commission. Powers and Functions: The commission advises the City Council on the adequacy of library service within the community and such other matters relating to library service as specified by the city council, and serves as liaison between the city and the Santa Clara County library system. The Library Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held monthly on the second Wednesday of each month at 7:00 p.m. in City 22 4 Hall, Conference Room A. For more information, contact staff liaison Christine Hanel, (408) 777- 3120 or christineh@cupertino.org. PARKS AND RECREATION COMMISSION - Residency requirement for all five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment No terms expiring in January 2017 Eligibility Requirements: The commission consists of five members who are residents of the City and shall be appointed by the Council to four-year, overlapping terms. None of the members shall be officials or employees of the City, nor cohabit with as defined by law, nor be rela ted by blood or marriage to any member of the Commission, the City Manager or the staff person(s) assigned to this Commission. The commission advises the City Council on municipal activities in relation to parks and recreation, including park site acquisition and development, recreation program policy, and expansion of the park program as development occurs. The Parks and Recreation Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held at 7:00 p.m. on the first Thursday of each month in the Community Hall. For more information, contact staff liaison Christine Hanel, (408) 777-3120 or parks@cupertino.org. PLANNING COMMISSION - Residency requirement for all five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Margaret Gong 1/29/13 1/30/17 Yes Winnie Lee 1/28/09; 1/29/13 1/30/17 No Alan Takahashi 1/29/13 1/30/17 Yes Eligibility Requirements: The Commission consists of five members appointed by the Council to overlapping four-year terms. Each member shall be a qualified elector in and resident of the City. None of the members shall be officials or employees of the City and none of whom shall cohabit with as defined by law, nor be related by blood or marriage to any other member of the Commission, the City Manager or the staff person(s) assigned to this Commission. Powers and Functions: The Commission’s primary function is to advise the City Council on land use matters such as specific and general plans, zonings and subdivisions. The Commission reviews other matters as specified by City ordinances or Title VII of the Government Code of California. The Planning Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held at 6:45 on the second and fourth Tuesday of the month in the Community Hall. For more information, contact staff liaison Benjamin Fu, (408) 777-3247 or benjaminf@cupertino.org. 23 5 PUBLIC SAFETY COMMISSION - Residency requirement for all five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment No terms expiring in January 2017 Eligibility Requirements: The commission consists of five members, all of whom shall reside within the City and shall be appointed by the council to four -year, overlapping terms. None shall be officials or employees of the City, members of the Sheriff’s Department of the County, either regular or reserve, nor shall they be members of the Central Fire Protection District. No members of the Public Safety Commission shall cohabit with, as defined by law, nor be related by blood or marriage to any member of the Commission, the City Manager or the staff person(s) assigned to this Commission. Powers and Functions: The primary functions are to advise the city council on all areas relating to public safety, traffic, and police, fire and other matters relating to the foregoing. The Public Safety Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held monthly on the second Thursday of each month at 6 p.m. in City Hall, Conference Room A. For more information, contact staff liaison Captain Rich Urena, (408) 868-6600. SUSTAINABILITY COMMISSION - Residency requirement for three out of five members; Business and educational institution representatives must be located in Cupertino. Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment No terms expiring in January 2017 Eligibility Requirements: The Cupertino Sustainability Commission consists of five members appointed by the City Council to serve four-year overlapping terms. One member must be a representative from a Cupertino-based educational institution and another from a Cupertino-based business. Sustainability Commission members who are representatives of an educational institution or a business are not required to be Cupertino residents. The three remaining community members must be residents of Cupertino. Powers and Functions: The commission serves in an advisory capacity to the City Council and provides expertise and guidance on major policy and programmatic areas related to the environmental, economic and societal goals noted within Cupertino’s Climate Action Plan (CAP) and General Plan (GP) Environmental Resources/Sustainability Element. The Sustainability Commission falls under the Political Reform Act of 1974 and financial disclosure is required. Meeting Schedule: Regular meetings are held at least once every three months at 4 p.m. on the third Thursday of the month, every 3rd month at the Environmental Education Center, 22221 McClellan Road, McClellan Ranch Preserve, and other meetings may be held as necessary. For more information, contact staff 24 6 liaison Misty Mersich, (408) 777-3362 or mistym@cupertino.org TEEN COMMISSION - Residency requirement for all nine members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment No terms expiring in January 2017 Eligibility Requirement: The commission consists of nine members, with the intention if possible to include at least one person from each public middle school and public high school in Cupertino. Membership on the Commission is limited to Cupertino re sidents. Members may attend schools outside of the city limits, or be schooled at home. Commissioners must be in 8th through 12th grade. Teen Commissioners serve two-year staggered terms. Powers and Functions: The powers and functions of the Teen Commission are to advise the City Council and staff on issues and projects important to youth. Meeting Schedule: Regular meetings are held September through May, twice monthly (except December), for a total of 17 meetings on the second and fourth Wednesday at 6:00 p.m. at the Quinlan Community Center, 10185 N. Stelling Road. For more information, contact staff liaison Danny Mestizo, (408) 777-3134 or DannyM@cupertino.org TECHNOLOGY, INFORMATION, AND COMMUNICATIONS COMMISSION - Residency requirement for all five members Incumbent Appointment Date Present Term Expires Eligible for Re-Appointment Partial Vacancy (counts as a full term) 1/30/20 Eligibility Requirements: The Commission consists of five members, from among the qualified electors of the City, appointed by the council to four-year, overlapping terms. None of the members shall be officials or employees of the City, nor cohabit with, as defined by law, nor be related by blood or marriage to any member of the Commission, the City Manager or the staff person(s) assigned to this Commission. Powers and Functions: They advise the city council on all matters relating to telecommunications within the city of Cupertino, including evaluating compliance with any franchise or other agreement between the city and a telecommunications provider and conducting periodic reviews of providers, facilities, and products. In addition, members serve as liaisons between the city, the public, and telecommunications providers in enhancing education and information. The commission also provides support for community access television, especially public and educational access, and gives guidance when needed for development and implementation of access channels and programming. The Technology, Information, and Communications Commission falls under the Political Reform Act of 1974 and financial disclosure is required. 25 7 Meeting Schedule: Regular meetings are held at least once every three months and, at the discretion of the Commission, other meetings may be held as necessary or expedient. Meetings usually fall on the first Wednesday of the month at 7:00 p.m. in City Hall Conference Room A. For more information, contact staff liaison Mariyah Serratos, (408) 777-3189 or mariyahs@cupertino.org. 26 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2114 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/24/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Approve the First amendment of the Employment Contract for the City Attorney and Appointed Employee’s Compensation Program. Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Resolution Amending Employment Contract B - Employment Contract for City Attorney C - Redlined Employment Contract for City Attorney D - Draft Resolution Amending Appointed Employees' Compensation Program E - Appointed Employees' Compensation Program F - Redlined Appointed Employees' Compensation Program Action ByDate Action ResultVer. City Council11/1/20161 Subject:Approve the First amendment of the Employment Contract for the City Attorney and Appointed Employee’s Compensation Program. 1.AdoptResolutionNo.16-111approvingtheFirstAmendmenttotheEmployment Contract for the City Attorney. 2.AdoptResolutionNo.16-112approvingAmendmenttotheAppointedEmployee’s Compensation Program. CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™27 S ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3227 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: November 1, 2016 Subject Approve the First amendment of the Employment Contract for the City Attorney and Appointed Employee’s Compensation Program. Recommended Action 1. Adopt Draft Resolution No.______ approving the First Amendment to the Employment Contract for the City Attorney. 2. Adopt Draft Resolution No._____ approving Amendment to the Appointed Employee’s Compensation Program. Discussion The City Council conducted its annual evaluation of the City Attorney on Wednesday, September 14, 2016. Based on the performance evaluation and changes in compensation for other employee groups, the Council desires to consider increasing the compensation to the City Attorney 4% for equity/performance and an additional 2.5% to reflect the cost of living adjustments approved for all other employees within the City. The City Attorney will also be subject to the amendments to the Appointed Employees Compensation Program. Fiscal Impact Approval of the above will increase the FY 2016-17 budget appropriations by $13,638. Prepared by: Jaqui Guzmán, Assistant to the City Manager Reviewed by: Kristina Alfaro, Administrative Services Director Approved for Submission by: David Brandt, City Manager Attachments: A - Draft Resolution Amending Employment Contract B - Employment Contract for City Attorney C – Redlined Employment Contract for City Attorney D - Draft Resolution Amending Appointed Employees’ Compensation Program E - Appointed Employees’ Compensation Program F – Redlined Appointed Employees’ Compensation Program 28 RESOLUTION 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING RESOLUTION, THE CITY ATTORNEY’S EMPLOYMENT CONTRACT WHEREAS, the City Council desires to amend the Employment Contract for the City Attorney. NOW, THEREFORE, BE IT RESOLVED that the Employment Contract for City Attorney be amended for the first time which is incorporated in this resolution by this reference and attached as Exhibit B. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of November 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 S ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3227 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: November 1, 2016 Subject Approve the First amendment of the Employment Contract for the City Attorney. Recommended Action 1. Adopt Draft Resolution No.______ approving the First Amendment to the Employment Contract for the City Attorney. Discussion The City Council conducted its annual evaluation of the City Attorney on Wednesday, September 14, 2016. Based on the performance evaluation and changes in compensation for other employee groups, the Council desires to consider increasing the compensation to the City Attorney 4% for equity/performance and an additional 2.5% to reflect the cost of living adjustments approved for all other employees within the City. The City Attorney will also be subject to the amendments to the Appointed Employees Compensation Program. Fiscal Impact Approval of the above will increase the FY 2016-17 budget appropriations by $13,638. Prepared by: Jaqui Guzmán, Assistant to the City Manager Reviewed by: Kristina Alfaro, Administrative Services Director Approved for Submission by: David Brandt, City Manager Attachments: A - Draft Resolution to Amend Employment Contract (CA Contract) B - Employment Contract for City Attorney C – Redlined Employment Contract for City Attorney 44 RESOLUTION 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING RESOLUTION, THE APPOINTED EMPLOYEES’ COMPENSATION PROGRAM WHEREAS, the City Council desires to amend the Appointed Employees’ Compensation Program. NOW, THEREFORE, BE IT RESOLVED that the Appointed Employees’ Compensation Program be amended which is incorporated in this resolution by this reference and attached as Exhibit E. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of November 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 45 1 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as appointed management employees by the City Council in the City Manager's and City Attorney offices shall be eligible for participation under the Appointed Employees' Compensation Program as hereby ad opted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion in this Compensation program is limited to persons appointed by the City Council and holding positions as management employees, as defined under section 2.52.290 of the Cupertino Municipal Code, in the City Manager and City Attorney Offices. These are designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as appointed employees. MANAGEMENT CLASSIFICATIONS: Classification Title City Manager City Attorney In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 46 2 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City's ability to pay consistent with its fiscal policies. Effective October 1, 2016, a 1% salary increase will be added to the salary range of each classification in this unit. Effective the first full pay period in July 2017, a .75% salary increase will be added to the salary range of each classification in this unit. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016 47 3 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40-mile distance from Cupertino when traveling to Alameda County. C. Meetings A "meeting" shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City's operations or to enhance the attendee's capabilities in the discharge of assigned duties and responsibilities. 48 4 III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee's home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non-conference lodging policy described in the next paragraph should be followed to find another comparable hotel. 49 5 Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not 50 6 limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City- related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE A. Budgetary Limitations Reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City's behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and 51 7 transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee's return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 52 8 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees shall be paid an automobile allowance according to their employment contract with the City. Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 53 9 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Subscriptions to or purchase of professional and technical publications may be provided at City expense providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 54 10 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED Management employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor's approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 55 11 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in the City Manager and City Attorney positions and the ir dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee's gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 Appointed employees in the City Manager and City Attorney positions will have immediate vesting of retiree medical benefits. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013, October 2016 56 12 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year's Day 2. Martin Luther King Day 3. Presidents' Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year's Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013 57 13 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 9 LIFE, LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for the City Manager and City Attorney that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee's annual salary to a maximum of $250,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 58 14 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the City Manager and the City Attorney for services performed for the City. The City participates in the California Public Employees' Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent attorney employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 59 15 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective October 1 2016, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation- Effective October 1, 2016, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, July 2013, October 2016 60 16 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers.*Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, October 2016 61 17 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The City Manager and City Attorney shall receive eighty (80) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 62 18 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the City Manager and the City Attorney and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 63 19 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 15 PUBLIC SERVICE CREDIT — VACATION ACCUMULATION The City Manager and the City Attorney shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 64 20 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the City Manager and the City Attorney pursuant to Resolution No. 15-092 as amended. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 65 21 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE — EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012 66 22 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM EXEMPT POSITIONS The salaries, wages, or rates of pay for City Attorney and City Manager employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Monthly Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $19,219.10 City Manager $0 $0 $0 $0 $22,232.07 Monthly Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $19,363.24 City Manager $0 $0 $0 $0 $22,398.81 67 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as appointed management employees by the City Council in the City Manager's and City Attorney offices shall be eligible for participation under the Appointed Employees' Compensation Program as hereby ad opted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion in this Compensation program is limited to persons appointed by the City Council and holding positions as management employees, as defined under section 2.52.290 of the Cupertino Municipal Code, in the City Manager and City Attorney Offices. These are designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as appointed employees. MANAGEMENT CLASSIFICATIONS: Classification Title City Manager City Attorney In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 1 68 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City's ability to pay consistent with its fiscal policies. Effective October 1, 2016, a 1% salary increase will be added to the salary range of each classification in this unit. Effective the first full pay period in July 2017, a .75% salary increase will be added to the salary range of each classification in this unit. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016 2 69 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40-mile distance from Cupertino when traveling to Alameda County. C. Meetings A "meeting" shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City's operations or to enhance the attendee's capabilities in the discharge of assigned duties and responsibilities. 3 70 III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee's home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non-conference lodging policy described in the next paragraph should be followed to find another comparable hotel. 4 71 Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not 5 72 limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City- related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE A. Budgetary Limitations Reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City's behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and 6 73 transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee's return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 7 74 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees shall be paid an automobile allowance according to their employment contract with the City. Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 8 75 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Subscriptions to or purchase of professional and technical publications may be provided at City expense providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 9 76 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED Management employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor's approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 10 77 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee's gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 Appointed employees in the City Manager and City Attorney positions will have immediate vesting of retiree medical benefits. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013, October 2016 11 78 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year's Day 2. Martin Luther King Day 3. Presidents' Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year's Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013 12 79 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 9 LIFE, LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for the City Manager and City Attorney that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee's annual salary to a maximum of $250,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 13 80 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the City Manager and the City Attorney for services performed for the City. The City participates in the California Public Employees' Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent attorney employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 14 81 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective October 1 2016, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation- Effective October 1, 2016, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, July 2013, October 2016 15 82 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers.*Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, October 2016 16 83 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The City Manager and City Attorney shall receive eighty (80) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 17 84 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the City Manager and the City Attorney and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 18 85 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 15 PUBLIC SERVICE CREDIT — VACATION ACCUMULATION The City Manager and the City Attorney shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 19 86 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the City Manager and the City Attorney pursuant to Resolution No. 15-092 as amended. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 20 87 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE — EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012 21 88 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM EXEMPT POSITIONS The salaries, wages, or rates of pay for City Attorney and City Manager employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Monthly Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,028.5019,219. 10 City Manager $0 $0 $0 $0 $22,232.07 Monthly Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,163.7119,363. 24 City Manager $0 $0 $0 $0 $22,398.81 22 89 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2113 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/24/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Approve the Fourth amendment of the Employment Contract for the City Manager and Appointed Employees’ Compensation Program. Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Resolution Amending Employment Contract B - Employment Contract for City Manager C - Redlined Employment Contract for City Manager D - Draft Resolution Amending Appointed Employees' Compensation Program E - Appointed Employees' Compensation Program F - Redlined Appointed Employees' Compensation Program Action ByDate Action ResultVer. City Council11/1/20161 Subject:Approve the Fourth amendment of the Employment Contract for the City Manager and Appointed Employees’ Compensation Program. 1.AdoptResolutionNo.16-113approvingtheFourthAmendmenttotheEmploymentContract fortheCityManager;and2.AdoptResolutionNo.16-114amendingtheAppointed Employees' Compensation Program CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™90 S ADMINISTRATIVE SERVICES DEPARTMENT CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3227 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: November 1, 2016 Subject Approve the Fourth amendment of the Employment Contract for the City Manager and Appointed Employees’ Compensation Program. Recommended Action 1. Adopt Draft Resolution No.______ approving the Fourth Amendment to the Employment Contract for the City Manager. 2. Adopt Draft Resolution No._____ approving Amendment to the Appointed Employee’s Compensation Program. Discussion The City Council conducted its annual evaluation of the City Manager on September 14, 2016. Based on the performance evaluation and changes in compensation for other employee groups, the Council desires to consider increasing the compensation to the City Manager 1% as an equity/performance increase and an additional 2.5% to reflect the cost of living adjustments approved for all other employees within the City. The attached contracts and Appointed Employee’s Compensation Program (APECP) is submitted for Council consideration. The APECP amendments reflected the changes to the benefits granted to both the Operating Engineers Local 3 and Cupertino Employees Association bargaining units as well as the unrepresented employees. The proposed total annual salary increase for the City Manager is 3.5% or $757 per month. Fiscal Impact Approval of the above will increase the FY 2016-17 budget appropriations by $8,728. Prepared by: Jaqui Guzmán, Assistant to the City Manager Reviewed by: Kristina Alfaro, Administrative Services Director Approved for Submission by: David Brandt, City Manager Attachments: A - Draft Resolution Amending Employment Contract B - Employment Contract for City Manager 91 C – Redlined Employment Contract for City Manager D - Draft Resolution Amending Appointed Employees’ Compensation Program E - Appointed Employees’ Compensation Program F – Redlined Appointed Employees’ Compensation Program 92 RESOLUTION 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING RESOLUTION, THE CITY MANAGER’S EMPLOYMENT CONTRACT WHEREAS, the City Council desires to amend the Employment Contract for the City Manager. NOW, THEREFORE, BE IT RESOLVED that the Employment Contract for the City Manager be amended for the fourth time which is incorporated in this resolution by this reference and attached as Exhibit B. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of November 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 93 94 95 96 97 98 99 10 0 10 1 10 2 10 3 Page 1 Revised 11.17.15 THIRD FOURTH AMENDED EMPLOYMENT CONTRACT FOR CITY MANAGER This Amended Employment Contract is made and entered into this 6th 1st day of September, 2015November, 2016, by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, A Municipal Corporation, by and through its City Council (EMPLOYER), and David Brandt (EMPLOYEE). RECITALS: A. EMPLOYER is a Municipal Corporation of the State of California. B. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, desires to employ the services of EMPLOYEE as City Manager. C. EMPLOYEE desires to accept employment as Cupertino City Manager. D. It is the desire of both EMPLOYER and EMPLOYEE to set forth the terms and conditions of said employment. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: ARTICLE 1: TERM OF EMPLOYMENT Section 1.0 1. Term of the Contract: This Contract originally began on September 10, 2012, and will automatically expire on September 9, 2020 unless extended in writing by the parties. On or within 30 days of September 9, 2019, EMPLOYEE shall notify EMPLOYER of the expiration date of September 9, 2020. In the event that EMPLOYER does not intend to extend this Contract beyond expiration, it shall notify EMPLOYEE in writing of its intent not to extend prior to the effective date of expiration. Failure of EMPLOYER to provide such notice shall not affect the expiration date of September 9, 2020. Section 1.02. Termination Prior to Expiration. Notwithstanding any provision contained in this Contract to the contrary, EMPLOYEE understands and agrees that he serves at the pleasure of EMPLOYER and may be terminated prior to expiration of this Contract at the will of the EMPLOYER, subject only to the severance provisions set forth in 104 Page 2 Revised 11.17.15 Article V of this Contract, and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal Code. In like manner, nothing in this Contract shall prevent, limit, or otherwise interfere with the right of EMPLOYEE to resign at any time from the position of City Manager subject only to the notice provisions set forth in Article V of this Contract and the ordinance provisions as set forth in Section 2.28.090 of the Cupertino Municipal Code. EMPLOYEE further acknowledges that EMPLOYER has made no limited expressed, or written assurances of continued employment with the City of Cupertino other than as specifically set forth in this Contract. ARTICLE II: DUTIES AND OBLIGATIONS OF EMPLOYEE Section 2.01. Duties. EMPLOYER hereby agrees to employ EMPLOYEE as City Manager of the City of Cupertino to perform the functions and duties as specified in the Municipal Code, California Constitution, and California Statutes, and to perform such other legally permissible and proper duties and functions as EMPLOYER shall from time to time assign to EMPLOYEE which are reasonably related to the position of City Manager, including but not limited to: A. To see that all laws and ordinances of the City are duly enforced and that all franchises, permits, licenses and privileges granted by the City are faithfully performed and observed; B. To control, order and give directions to all directors of departments and to subordinate officers and employees of the City under his jurisdiction through their department directors, and to transfer employees from one department to another; C. The services and facilities of the City Treasurer and the City Attorney shall be made available to the City Manager to the same extent and in the same manner that the services are available to the City Council; D. To appoint, discipline and dismiss any and all officers and employees of the City except those elected by the electors of the City or whose appointment or dismissal is 105 Page 3 Revised 11.17.15 denied to the City Manager under the laws of the state. The power to appoint given in the preceding paragraph does not include the power to create a new position except as provided under Chapter 2.52; E. To attend all meetings of the City Council unless excused there from by the City Council; F. To recommend to the City Council for adoption such measures and ordinances as he deems necessary or expedient; G. To keep the City Council at all times fully advised as to the financial conditions and needs of the City; H. To prepare and submit to the City Council the annual budget and to administer it after adoption; I. To purchase or cause to be purchased all supplies for all of the departments or divisions of the City. No expenditures shall be submitted or recommended to the City Council except on report and approval of the City Manager; J. To make investigation into the affairs of the City and any department or division thereof and any Contract or the proper performance of any obligation running to the City; K. To investigate all complaints in relation to matters consuming the administration of the government of the City and in regard to the services maintained by public utilities in the City and to see that all franchises, permits and privileges granted by the City are faithfully observed; L. To execute general supervision over all public buildings, public parks, streets and other public property which are under the control and jurisdiction of the City Council; M. To devote his entire working time, thought and energy to the duties and interests of the City; N. To receive and open all official mail and communications addressed either to the Mayor or to the City Council; 0. To make reports and initiate recommendations as may be desirable or as requested by the City Council; P. To perform such other duties and exercise such other powers as may be 106 Page 4 Revised 11.17.15 delegated to him from time to time by ordinance, resolution or other action of the City Council. Section 2.02. Devotion to Duties. EMPLOYEE agrees to devote productive time, ability, and attention to the business of EMPLOYER during the term of this Employment Contract. This Contract shall not be interpreted nor intended to prohibit EMPLOYEE from making passive personal investments, conducting private business affairs or providing volunteer services if those activities do not interfere with the services required under this Contract. Section 2.03. Performance Evaluation Procedures. The City Council shall review and evaluate the performance of the EMPLOYEE at least annually, or on any schedule deemed appropriate by the City Council. Said review and evaluation shall be in accordance with specific criteria developed by EMPLOYER after consultation with EMPLOYEE. ARTICLE III COMPENSATION Section 3.01 Compensation. EMPLOYER agrees to pay to EMPLOYEE for services rendered by him pursuant to this Contract a monthly base salary of $21,262.50 $22,232.12 as set forth in the Appointed Employees’ Compensation Program, payable in installments at the time as other employees of EMPLOYER are paid. Per the Appointed Employees’ Compensation Program, effective the first full pay period in July 2017, a 0.75% salary increase will be added to the salary range of each classification in the unit. EMPLOYEE'S monthly base salary shall be adjusted by any percentage increase provided in the Appointed Employees’ Compensation Program, generally and shall not be decreased unless in a percentage consistent with a decrease applicable to employees covered under the Appointed Employees’ Compensation Program, generally. Notwithstanding the above, EMPLOYER and EMPLOYEE agree that there shall be no further salary adjustments or bonuses for 20165. At the time of EMPLOYEE's periodic evaluations, EMPLOYER may consider an additional compensation package increase including, but not limited to, merit pay or an additional increase in salary or benefits. 107 Page 5 Revised 11.17.15 Section 3.02 Deferred Compensation. City shall provide to EMPLOYEE the same deferred compensation plan that may be provided to other employees covered under the Appointed Employees’ Compensation Program, if any. ARTICLE IV EMPLOYEE BENEFITS Section 4.01. Automobile Allowance. During the term of this Employment contract, EMPLOYEE, to the extent necessary to perform his duties shall use his own personal vehicle. EMPLOYER, in consideration thereof, shall provide EMPLOYEE an automobile allowance in accordance with the Appointed Employees’ Compensation Program. EMPLOYEE shall be responsible for the payment of all operating expenses of the vehicle, including, but not limited to, gasoline, oil, service and repair, and if necessary, the replacement of his automobile. EMPLOYEE shall procure and maintain, at his expense, a comprehensive automobile liability policy on the vehicle being used by him, in an amount that is acceptable to the EMPLOYER. During the course of this Employment Contract, EMPLOYEE shall provide EMPLOYER with written documentation that said insurance policy is in full force and effect. Section 4.02. Vacation and Sick Leave. EMPLOYEE shall be credited with 10 days of vacation and 5 days of sick leave as of the commencement of employment. Annual vacation and sick leave shall be accrued and administered in the same manner as vacation and sick leave is administered in the Appointed Employees’ Compensation Program of EMPLOYER. Section 4.03. Benefits. EMPLOYEE shall be entitled to receive benefits provided by EMPLOYER at a level no less than that provided to employees covered under the Appointed Employees’ Compensation Program, which presently consist of retirement benefits, family health coverage, life insurance, disability insurance, Cupertino sports club membership, administrative leave, floating holidays and holidays. The benefits so provided are subject to modification during the course of this Contract at the sole and absolute discretion of EMPLOYER at such times and to such extent as EMPLOYER may deem appropriate provided, however, there shall be no reduction in benefits unless EMPLOYER implements the same reduction of benefits to all other employees covered under the Appointed Employees’ Compensation Program (except as specified in this Contract). Section 4.04 Professional Dues and Subscriptions. EMPLOYER agrees to pay for 108 Page 6 Revised 11.17.15 professional dues and subscriptions of EMPLOYEE directly related to his duties as City Manager, provided the City Council has made provisions for such costs in the annual budget. Section 4.05 Expenses. EMPLOYEE shall be entitled to reimbursement for all reasonable expenses necessarily incurred by him in the performance of his duties upon presentation of vouchers indicating the amount and purpose thereof, and further provided that such expenses are in accordance with policies established from time to time by EMPLOYER and consistent with budget allocations adopted by EMPLOYER for that purpose during the term of this Employment Contract. Section 4.06 Moving and Relocation Expenses. EMPLOYER will pay EMPLOYEE the amount of $20,000 intended to be used for relocation, housing and house hunting expenses in EMPLOYEE's discretion. Section 4.07 Professional Development. EMPLOYER hereby agrees to pay travel and subsistence expenses of EMPLOYEE for professional and office travel, meetings, and occasions adequate to continue the professional development of EMPLOYEE and to adequately pursue necessary official functions for EMPLOYER, including but not limited to, city manager associations and other such national, regional, state, local government groups and committees thereof which EMPLOYEE serves as a member, provided the City Council has made provisions for such costs in the annual budget. EMPLOYER also agrees to pay tuition, travel, and subsistence expenses of EMPLOYEE for courses, institutes, and seminars that are necessary for his professional development and of the good of the City provided the City Council has provided for same in the annual budget. Section 4.08 Housing Assistance. EMPLOYEE may elect to receive Housing Assistance in accordance with the EMPLOYER's Housing Assistance Program for Appointed Employees and Department Heads in effect as of the execution date of this Contract, which is subject to approval by the City Council. 109 Page 7 Revised 11.17.15 ARTICLE V TERMINATION AND NOTICE Section 5.01. Termination of Employment and Severance: A. Subject to the provisions of Section 2.28 of EMPLOYER's municipal Code, EMPLOYEE serves at the pleasure of EMPLOYER and nothing herein shall be taken to prevent, limit or otherwise interfere with the right of EMPLOYER to terminate the services of EMPLOYEE with or without cause; provided, however, EMPLOYER shall take no action to terminate the services of EMPLOYEE, without cause, within ninety (90) days after an election at which one or more new members are elected to the City Council. There is no express or implied promise made to EMPLOYEE for any form of continued employment. This Contract and the EMPLOYER's municipal Code chapter 2.28 are the sole and exclusive bases for an employment relationship between EMPLOYEE and EMPLOYER. B. If the EMPLOYEE is terminated by the EMPLOYER prior to expiration of this Contract, while still willing and able to perform the duties of the City Manager, EMPLOYER agrees to pay EMPLOYEE a single lump sum payment made on the effective date of termination, in an amount equivalent to nine months aggregate salary and aggregate medical insurance benefit allowance if there are nine or more months prior to the expiration date of this contract. If there are less than nine months remaining the term of the contract, then the single lump sum payment made on the effective day of termination shall be in an amount equal to the monthly aggregate salary and aggregate medical benefit of the EMPLOYEE multiplied by the numbers of months left on the unexpired term of the Contract. If this Contract is not renewed, then EMPLOYER shall either provide EMPLOYEE with nine months prior notice of nonrenewal or shall pay EMPLOYEE a single lump sum payment made on the effective date of termination in an amount equivalent to the difference between nine months aggregate salary and medical insurance benefit allowance computed for the number of months of notice actually given. Any such payment will release EMPLOYER from any further obligations under this Contract. Contemporaneously with the delivery of the severance pay herein above set out, EMPLOYEE agrees to execute and deliver to EMPLOYER a release releasing EMPLOYER of all claims that EMPLOYEE may have against EMPLOYER. C. Notwithstanding paragraph (b) above, EMPLOYER shall not be obligated to 110 Page 8 Revised 11.17.15 pay, and shall not pay, any amounts or continue any benefits under the provisions of paragraph (b), if EMPLOYEE is terminated because of a crime of moral turpitude or a violation of statute or law constituting misconduct in office. Further, EMPLOYER shall not be obligated to pay, and shall not pay, any amounts or continue any benefits under paragraph (b), in the event EMPLOYEE voluntarily resigns or retires without affirmative action by EMPLOYER to terminate, initiate termination proceedings or request resignation. D. Any payment to the EMPLOYEE pursuant to this subsection 5.01 shall be fully reimbursed to the EMPLOYER if the EMPLOYEE is convicted of a crime involving an abuse of his office or position. ARTICLE VI MISCELLANEOUS Section 6.01. Form of Notices. Notices pursuant to this Contract shall be in writing given by deposit in the custody of the United State Postal Service, first class postage prepaid, addressed as follows; A. The City: Mayor and City Council City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 B. EMPLOYEE: David Brandt Address to be inserted at time of relocation: 3500 Granada Avenue, #124 Santa Clara, CA 95051 Alternatively, notices required pursuant to this Contract may be personally served in the same manner as is applicable to civil judicial process. Notice shall be deemed given as of the date of personal service or as of the date three days after deposit of such written notice, postage prepaid, with the United States Postal Service. Section 6.02. Bonding. EMPLOYER shall bear the full cost of any fidelity or other bonds required of EMPLOYEE under any law or ordinance. 111 Page 9 Revised 11.17.15 Section 6.03 Indemnification. EMPLOYER shall defend, save harmless and indemnify EMPLOYEE against any tort, professional liability claim or demand, or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of EMPLOYEE's duties as City Manager. If EMPLOYER compromises or settles any such claim or suit, EMPLOYER shall pay the amount of any settlement, or if the claim results in a judgment against EMPLOYEE, EMPLOYER shall pay any such judgment. This indemnification does not apply to any act, action or omission arising out of the gross negligence, willful misconduct on the part of EMPLOYEE, or acts EMPLOYEE outside the scope of his duties. Section 6.04 General Provisions. A. The text herein shall constitute the entire Contract between the parties. B. This Contract shall be binding upon and insure to the benefit of the heirs at law and executors of EMPLOYEE. C. This Contract may only be modified upon the written consent of the EMPLOYER and EMPLOYEE. D. In any action to enforce the terms of this Contract the prevailing party shall be entitled to recover reasonable attorney's fees and court costs and other nonreimbursable litigation expenses, such as expert witness fees and investigation expenses. Section 6.05 Severability. If any provision thereof, contained in this Contract is held unconstitutional, invalid or unenforceable, the remainder of this Contract shall be deemed severable, shall not be affected, and shall remain in full force and effect. IN WITNESS WHEREOF, EMPLOYER has caused this Contract to be signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and EMPLOYEE has signed and executed this Contract, both in duplicate, the day and year first above written. ATTEST: CITY OF CUPERTINO _________________________________ _____________________________ City Clerk Mayor APPROVED AS TO FORM: 112 Page 10 Revised 11.17.15 _________________________________ ______________________________ Timothy L. Davis, PartnerRenee Sloan Holtzman Sakai on behalf of the City EMPLOYEE Burke, Williams & Sorensen, LLP 113 RESOLUTION 16- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING RESOLUTION, THE APPOINTED EMPLOYEES’ COMPENSATION PROGRAM WHEREAS, the City Council desires to amend the Appointed Employees’ Compensation Program. NOW, THEREFORE, BE IT RESOLVED that the Appointed Employees’ Compensation Program be amended which is incorporated in this resolution by this reference and attached as Exhibit E. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of November 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 114 1 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as appointed management employees by the City Council in the City Manager's and City Attorney offices shall be eligible for participation under the Appointed Employees' Compensation Program as hereby ad opted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion in this Compensation program is limited to persons appointed by the City Council and holding positions as management employees, as defined under section 2.52.290 of the Cupertino Municipal Code, in the City Manager and City Attorney Offices. These are designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as appointed employees. MANAGEMENT CLASSIFICATIONS: Classification Title City Manager City Attorney In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 115 2 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City's ability to pay consistent with its fiscal policies. Effective October 1, 2016, a 1% salary increase will be added to the salary range of each classification in this unit. Effective the first full pay period in July 2017, a .75% salary increase will be added to the salary range of each classification in this unit. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016 116 3 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40-mile distance from Cupertino when traveling to Alameda County. C. Meetings A "meeting" shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City's operations or to enhance the attendee's capabilities in the discharge of assigned duties and responsibilities. 117 4 III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether th e expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee's home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non-conference lodging policy described in the next paragraph should be followed to find another comparable hotel. 118 5 Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not limited to: 1. The personal portion of any trip; 119 6 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City- related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE A. Budgetary Limitations Reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City's behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee's return on the expense report described in Section VII. 120 7 VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 121 8 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees shall be paid an automobile allowance according to their employment contract with the City. Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 122 9 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Subscriptions to or purchase of professional and technical publications may be provided at City expense providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 123 10 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED Management employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor's approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 124 11 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee's gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 Appointed employees in the City Manager and City Attorney positions will have immediate vesting of retiree medical benefits. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013, October 2016 125 12 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year's Day 2. Martin Luther King Day 3. Presidents' Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year's Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013 126 13 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 9 LIFE, LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for the City Manager and City Attorney that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee's annual salary to a maximum of $250,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 127 14 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the City Manager and the City Attorney for services performed for the City. The City participates in the California Public Employees' Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent attorney employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 128 15 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective October 1 2016, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation- Effective October 1, 2016, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, July 2013, October 2016 129 16 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers.*Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, October 2016 130 17 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The City Manager and City Attorney shall receive eighty (80) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 131 18 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the City Manager and the City Attorney and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 132 19 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 15 PUBLIC SERVICE CREDIT — VACATION ACCUMULATION The City Manager and the City Attorney shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 133 20 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the City Manager and the City Attorney pursuant to Resolution No. 15-092 as amended. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 134 21 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE — EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012 135 22 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM EXEMPT POSITIONS The salaries, wages, or rates of pay for City Attorney and City Manager employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Monthly Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,028.50 City Manager $0 $0 $0 $0 $22,232.07 Monthly Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,163.71 City Manager $0 $0 $0 $0 $22,398.81 136 1 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 1 PROGRAM PURPOSE AND DEFINITIONS FOR ELIGIBILITY It is City of Cupertino policy that those certain persons holding positions hereinafter defined and designated as appointed management employees by the City Council in the City Manager's and City Attorney offices shall be eligible for participation under the Appointed Employees' Compensation Program as hereby ad opted by action of the City Council and as same may be amended or as otherwise modified from time to time. Eligibility for inclusion in this Compensation program is limited to persons appointed by the City Council and holding positions as management employees, as defined under section 2.52.290 of the Cupertino Municipal Code, in the City Manager and City Attorney Offices. These are designated by the Appointing Authority and may be modified as circumstances warrant. Although subject to change in accordance with provision of the Personnel Code, the positions in the following classifications have been designated as appointed employees. MANAGEMENT CLASSIFICATIONS: Classification Title City Manager City Attorney In the event of any inconsistency between the Compensation Program and any Employment Contracts, the provisions of the Employment Contract and any amendments thereto control. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 137 2 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 2 SALARY SCHEDULE AND OTHER SALARY RATES It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated for services rendered to and on behalf of the City on the basis of equitably of pay for duties and responsibilities assigned, meritorious service and comparability with similar work in other public and private employment in the same labor market; all of which is contingent upon the City's ability to pay consistent with its fiscal policies. Effective October 1, 2016, a 1% salary increase will be added to the salary range of each classification in this unit. Effective the first full pay period in July 2017, a .75% salary increase will be added to the salary range of each classification in this unit. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012 Revised December 18, 2012, October 2016 138 3 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 3 TRAINING AND CONFERENCES I. POLICY It is City of Cupertino policy that eligible persons under this Compensation Program shall be reimbursed or receive advances in accordance with the schedules, terms and conditions as set forth herein for attendance at conferences, meetings and training sessions as defined below for each. It is the intent of this policy to encourage the continuing education and awareness of said persons in the technical improvements and innovations in their fields of endeavor as they apply to the City or to implement a City approved strategy for attracting and retaining businesses in the City. One means of implementing this encouragement is through a formal reimbursement and advance schedule for authorized attendance at such conferences, meetings and training sessions. II DEFINITIONS A. Conferences A conference is an annual meeting of a work related organization the membership of which may be held in the name of the City or the individual. B. Local Area The local area is defined to be within Santa Clara and San Mateo Counties and within a 40-mile distance from Cupertino when traveling to Alameda County. C. Meetings A "meeting" shall mean a convention, conference, seminar, workshop, meal, or like assembly having to do with municipal government operations. An employee serving on a panel for interviews of job applicants shall not come under this definition. D. Training Session A training session is any type of seminar or workshop the attendance at which is for the purpose of obtaining information of a work related nature to benefit the City's operations or to enhance the attendee's capabilities in the discharge of assigned duties and responsibilities. 139 4 III REIMBURSEMENT AND ADVANCE PAYMENT SCHEDULE A. Intent This schedule is written with the intent that the employee will make every effort to find the lowest possible cost to the City for traveling on City business. For example, if paying for parking at the airport is less expensive that paying for a taxi or airport shuttle, then the employee should drive their car and park at the airport; or if renting a car is lower than taking taxis at the out-of-town location, then a car should be rented; or air reservations should be booked in advance to obtain discounted fares. The following procedures apply whether the expense is being paid through a reimbursement or a direct advance. B. Registration Registration fees for authorized attendance at a meeting or training session will be paid by the City. C. Transportation The City will pay transportation costs on the basis of the lowest cost intent stated in paragraph A. Eligible transportation costs include airfare (with coach fare being the maximum), van or taxi service to and from the attendee's home and airport, destination or airport parking charges, taxi and shuttle services at the out-of-town location, trains, tolls, or rental cars. Use of a personal automobile for City business shall be reimbursed or advanced at the rate per mile in effect for such use, except in no case shall it exceed air coach fare if the vehicle is being used for getting to the destination. Government or group rates offered by a provider of transportation must be used when available. Reimbursement or advances for use of a personal automobile on City business within a local area will not be made so as to supplement that already being paid to those persons receiving a monthly mileage allowance. D. Lodging Hotel or lodging expenses of the employee resulting from the authorized event or activity defined in this policy will be reimbursed or advanced if the lodging and event occurs outside of the local area. Not covered will be lodging expenses related to person(s) who are accompanying the City member, but who themselves are not on City business. In this instance, for example, the difference between single and multiple occupancy rates for a room will not be reimbursed. Where the lodging is in connection with a conference or other organized educational activity, City-paid lodging costs shall not exceed the maximum group rate published by the conference or activity sponsor, providing that lodging at the group rate is available at the time of booking. If the group rate at the conference hotel is not available, then the non-conference lodging policy described in the next paragraph should be followed to find another comparable hotel. 140 5 Where lodging is necessary for an activity that is not related to a conference or other organized educational activity, reimbursement or advances shall be limited to the actual cost of the room at a group or government rate. In the event that a group or government rate is not available, lodging rates that do not exceed the median price for lodging for that area and time period listed on travel websites like www.hotels.com, www.expedia.com or an equivalent service shall be eligible for reimbursement or advancement. E. Meals 1. With No Conference Payments toward or reimbursement of meals related to authorized activities or events shall be at the Internal Revenue Service per diem rate for meals and incidental expenses for a given location, as stated by IRS publications 463 and 1542 and by the U.S. General Services Administration. The per diem shall be split among meals as reasonably desired and reduced accordingly for less than full travel days. If per diem is claimed, no receipts are necessary. Alternatively, the actual cost of a meal can be claimed, within a standard of reasonableness, but receipts must be kept and submitted for the expense incurred. 2. As Part of a Conference When City personnel are attending a conference or other organized educational activity, they shall be reimbursed or advanced for meals not provided by the activity, on a per diem or actual cost basis. The per diem and actual cost rate shall follow the rules described in the meals with no conference paragraph. F. Other Expenses Payments toward or reimbursement of expenses at such functions shall be limited to the actual costs consistent with the application of reasonable standards. Other reasonable expenses related to business purposes shall be paid consistent with this policy. No payments shall be made unless, where available, receipts are kept and submitted for all expenses incurred. When receipts are not available, qualifying expenditures shall be reimbursed upon signing of an affidavit of expenditure. No payment shall be made for any expenses incurred which are of a personal nature or not within a standard of reasonableness for the situation as may be defined by the Finance Department. G. Non-Reimbursable Expenses The City will not reimburse or advance payment toward expenses including, but not 141 6 limited to: 1. The personal portion of any trip; 2. Political or charitable contributions or events; 3. Family expenses, including those of a partner when accompanying the employee on City- related business, as well as child or pet-related expenses; 4. Entertainment expenses, including theatre, shows, movies, sporting events, golf, spa treatments, etc. 5. Gifts of any kind for any purpose; 6. Service club meals; 7. Alcoholic beverages; 8. Non-mileage personal automobile expenses including repairs, insurance, gasoline, traffic citations; and 9. Personal losses incurred while on City business. IV ATTENDANCE A. Budgetary Limitations Reimbursement or advances for expenses relative to conferences, meeting or training sessions shall not exceed the budgetary limitations. V. FUNDING A. Appropriation Policy It shall be the policy of the City to appropriate funds subject to availability of resources. B. Training Sessions Payments toward or reimbursement of expenses incurred in attendance at training sessions, will be appropriated annually through the budget process. VI. DIRECT CASH ADVANCE POLICY From time to time, it may be necessary for a City employee to request a direct cash advance to cover anticipated expenses while traveling or doing business on the City's behalf. Such request for an advance should be submitted to their supervisor no less than seven days prior to the need for the advance with the following information: 1) Purpose of the expenditure; 2) The anticipated amount of the expenditure (for example, hotel rates, meal costs, and 142 7 transportation expenses); and 3) The dates of the expenditure. An accounting of expenses and return of any unused advance must be reported to the City within 30 calendar days of the employee's return on the expense report described in Section VII. VII. EXPENSE REPORT REQUIREMENTS All expense reimbursement requests or final accounting of advances received must be approved by their supervisor, on forms determined by the Finance Department, within 30 calendar days of an expense incurred, and accompanied by a business purpose for all expenditures and a receipt for each non- per diem item. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 143 8 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 4 AUTOMOBILE ALLOWANCES AND MILEAGE REIMBURSEMENTS It is City of Cupertino policy that eligible persons under this Compensation Program shall be compensated fairly for the use of personal automotive vehicles on City business. In many instances the use of personal vehicles is a condition of employment due to the absence of sufficient City owned vehicles for general transportation purposes. It is not intended, however, that such a condition of employment should work an undue hardship. For this reason, the following policies shall apply for mileage reimbursements. Those persons who occasionally are required to use their personal automobiles for City business shall be reimbursed for such use at an appropriate rate established by the City Council. Submission of reimbursement requests must be approved by the Department Head. Employees shall be paid an automobile allowance according to their employment contract with the City. Employees receiving automobile allowance shall be eligible for reimbursement for travel that exceeds two hundred miles round trip. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 144 9 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 5 ASSOCIATION MEMBERSHIPS AND PROFESSIONAL PUBLICATIONS It is City of Cupertino policy that eligible persons under this Compensation Program shall be entitled to City sponsored association memberships as well as receiving subscriptions to professional and technical publications. Such sponsorship, however, shall be conditioned upon the several factors as set forth below. Each association for which membership is claimed must be directly related to the field of endeavor of the person to be benefited. Subscriptions to or purchase of professional and technical publications may be provided at City expense providing the subject matter and material generally contained therein are related to municipal governmental operations. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 145 10 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 6 OVERTIME WORKED Management employees are ineligible for overtime payments for time worked in excess of what otherwise would be considered as a normal work day or work week for other employees. However, no deduction from leave balances are made when such an employee is absent for less than a regular work day as long as the employee has his/her supervisor's approval. Nothing in this policy precludes the alternative work schedule, which may include an absence of a full eight hour day, when forty hours have been worked in the same seven day work period. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 146 11 City of Cupertino APPOINTED EMPLOYEES'COMPENSATION PROGRAM Policy No. 7 HEALTH BENEFITS PLAN - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide group hospital and medical insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees and their families through comprehensive health plans available only through employer sponsorship. Although the premium cost for the insurance provided remains the ultimate responsibility of the employee in these positions, the City shall contribute the amounts listed below towards the premium or pay the full cost of the premium if less than the stated amounts. If the premium amounts for any employee covered by this policy are less than the amounts listed below per month, the difference between the premium amount and the stated amounts will be included in the employee's gross pay. October 1, 2016 City Max Health Contribution City Max Dental Contribution* City Total Max Contribution Employee 733.39 134.85 868.24 Employee +1 1246.59 134.85 1381.44 Employee +2 1620.57 134.85 1755.42 January 1, 2018 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 769.95 134.85 904.80 Employee +1 1308.92 134.85 1443.77 Employee +2 1701.60 134.85 1836.45 January 1, 2019 City Max Health Contribution City Max Dental Contribution City Total Max Contribution Employee 808.45 134.85 943.30 Employee +1 1374.37 134.85 1509.22 Employee +2 1786.68 134.85 1921.53 Appointed employees in the City Manager and City Attorney positions will have immediate vesting of retiree medical benefits. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013, October 2016 147 12 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 8 FIXED HOLIDAYS It is the policy of the City of Cupertino to recognize days of historical and national significance as holidays of the City without loss of pay or benefits. Recognizing the desirable times throughout the year, it is the policy of the City of Cupertino to provide days off in lieu of holidays for management and confidential employees at such times as are convenient for each employee and supervisor, when such policy is compatible with the workload and schedule of the City. The City provides the following fixed paid holidays for eligible employees covered by this agreement: 1. New Year's Day 2. Martin Luther King Day 3. Presidents' Day 4. Memorial Day 5. Independence day 6. Labor Day 7. Veteran's Day 8. Thanksgiving Day 9. Day Following Thanksgiving 10. Christmas Eve 11. Christmas Day 12. New Year's Eve When a holiday falls on a Sunday, the following Monday shall be observed as the non-work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-work day. FLOATING HOLIDAY In addition to the paid holidays, employees occupying these positions shall be provided 20 floating hours per calendar year as non-work time with full pay and benefits. Employees may accumulate floating holiday hours up to two times their annual accrual. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, July 2013 148 13 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 9 LIFE, LONG TERM DISABILITY INSURANCE, AND SHORT TERM DISABILITY INSURANCE It is the policy of the City of Cupertino to make available group insurance for the City Manager and City Attorney that will mitigate the personal and family financial hardships resulting from continuing disability that prevents an employee from performing gainfully in his or her occupation. It is further the policy of the City of Cupertino to provide life insurance benefits in an amount of two and one half times the employee's annual salary to a maximum of $250,000.00. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 149 14 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 10 DEFERRED COMPENSATION It is the policy of the City of Cupertino to provide equitable current compensation and reasonable retirement security for the City Manager and the City Attorney for services performed for the City. The City participates in the California Public Employees' Retirement System (PERS) and deferred compensation plans have been established. Both the employee and employer may make contributions from current earnings to these plans. The purpose of this policy is to promote means by which compensation may be provided in such manner and form to best meet the requirements of the City and the needs of individual employees, thereby increasing the ability, to attract and retain competent attorney employees. The City shall maintain and administer means by which employees in these positions may defer portions of their current earnings for future utilization. Usage of such plans shall be subject to such agreements, rules and procedures as are necessary to properly administer each plan. Employee contributions to such plans may be made in such amounts as felt proper and necessary to the employee. Employer contributions shall be as determined by the City Council. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 150 15 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 11 PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTION A. Employees hired on or before December 29, 2012 Only: For employees hired on or before December 29, 2012, the City has contracted with CalPERS for a 2.7% @55 formula. Effective October 1 2016, the City agrees to pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) not to exceed .75% of applicable salary and each employee agrees to pay 7.25% of applicable salary. Effective in the first full pay period in July 2017, each employee shall pay the full 8.0% of applicable salary of the employee’s contribution towards CalPERS. B. For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations Only: For Employees hired by the City of Cupertino on December 30, 2012 or December 31, 2012 or a current CalPERS employee who qualifies as a classic member under CalPERS Regulations only the City has contracted with CalPERS for a 2.0% @ 60 retirement formula, three year average compensation- Effective October 1, 2016, the City shall not pay the employee’s contribution rate to the California Public Employees Retirement System (CalPERS) and each employee shall pay the full 7% of applicable salary of the employee’s contribution towards CalPERS. C. For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as Classic members Only: For new employees hired by the City of Cupertino on or after January 1, 2013 and do not qualify as classic members as defined by CalPERS, CalPERS has by statute implemented a 2% @ 62 formula, three year average and employees in this category shall pay 50% of the normal cost rate as determined by CalPERS. Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, July 2013, October 2016 151 16 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 12 DENTAL INSURANCE - EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide dental insurance under which employees in the City Manager and City Attorney positions and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $134.85* per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with Personnel Rules of the City and the provisions of the contract for such insurance between the City and carrier or carriers.*Dental Coverage: Effective the first month after Council adoption of agreement, dental coverage is capped at $2,500.00 per dependent per annual plan year for the term of this contract. Adopted by Action of City Council July 1, 2010 Revised October 2, 2012; December 18, 2012, October 2016 152 17 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 13 ADMINISTRATIVE LEAVE The City Manager and City Attorney shall receive eighty (80) hours of administrative leave with pay per year. Employees may accumulate administrative leave hours up to two times their annual accrual. Employees shall be eligible to convert administrative leave hours to pay one time each calendar year. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012, October 2016 153 18 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 14 EMPLOYEE ASSISTANCE PROGRAM It is the policy of the City of Cupertino to provide an Employee Assistance Program for the benefit of the City Manager and the City Attorney and their eligible dependents. The purpose of this program is to provide professional assistance and counseling concerning financial, legal, pre-retirement, and other matters of a personal nature. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 154 19 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 15 PUBLIC SERVICE CREDIT — VACATION ACCUMULATION The City Manager and the City Attorney shall earn vacation hours under the same vacation accumulation schedule as all other employees. Credit shall be provided for previous public sector service time on a year-for-year basis as to annual vacation accumulation. Credit shall only be given for completed years of service. Public service credit shall not apply to any other supplemental benefit. Employee(s) affected by this policy will have the responsibility of providing certification as to previous public sector service. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 155 20 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 16 HOUSING ASSISTANCE PROGRAM Housing assistance may be offered to the City Manager and the City Attorney pursuant to Resolution No. 15-092 as amended. Adopted by Action of the City Council July 1, 2010 Revised December 18, 2012 Revised October 20, 2015 156 21 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM Policy No. 17 VISION INSURANCE — EMPLOYER CONTRIBUTION It is the policy of the City of Cupertino to provide vision insurance under which employees and their dependents may be covered. The purpose of this program is to promote and preserve the health of employees. The premium cost for the insurance provided by the City shall not exceed $14.94 per month per employee. Enrollment in the plan or plans made available pursuant to this policy shall be in accordance with the provisions of the contract between the City and carrier or carriers providing vision insurance coverage, Adopted by Action of the City Council July 1, 2010 Revised October 2, 2012; December 18, 2012 157 22 City of Cupertino APPOINTED EMPLOYEES' COMPENSATION PROGRAM EXEMPT POSITIONS The salaries, wages, or rates of pay for City Attorney and City Manager employees whose positions are exempt under the provisions of the Cupertino Municipal Code, are set forth below. Only the City Council can modify these rates. Monthly Salary Effective October 1, 2016 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,028.50 City Manager $0 $0 $0 $0 $21,475.1322,232. 07 Monthly Salary Effective First Full Pay Period in July 2017 Classification Step 1 Step 2 Step 3 Step 4 Step 5 City Attorney $0 $0 $0 $0 $18,163.71 City Manager $0 $0 $0 $0 $21,636.1922,398. 81 158 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2108 Name: Status:Type:Consent Calendar Agenda Ready File created:In control:10/18/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: New contracts and contract amendments for professional building department services for Apple Campus 2 Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Agreement – WC3 for Apple Campus 2, 10-13-2016 B - Draft Agreement – CSG for Apple Campus 2, 10-20-2016 C - Draft Second Amendment – 4LEAF for Apple Campus 2, 10-20-2016 D - Draft First Amendment – 4LEAF for Apple Campus 2, 10-20-2016 Action ByDate Action ResultVer. City Council11/1/20161 Subject:Newcontractsandcontractamendmentsforprofessionalbuildingdepartmentservices for Apple Campus 2 1) Authorize the City Manager to: a.ExecuteAgreementwithWestCoastCodeConsultants,Inc.forprofessionalbuildingdepartmentservicesatAppleCampus2fora total amount not to exceed $821,720.00; and b.ExecuteAgreementwithCSGConsultants,Inc.forplanreviewservicesatAppleCampus2foratotalamountnottoexceed $1,120,000.00; and c.ExecutetheSecondAmendmenttoAgreement14-028with4LEAF,Inc.forAppleCampus2Phase1buildinginspectionservices andpublicworksinspectionservicestoincreasethepreviouslyauthorizedcontractamountby$4,761,376.00foratotalamountnotto exceed $15,126,478.00; and d.ExecutetheFirstAmendmenttoAgreement15-146with4LEAF,Inc.forAppleCampus2Phase2buildinginspectionservicesto increase the previously authorized contract amount by $567,531.00 for a total amount not to exceed $914,787.00; and 2) Authorize the City Manager to execute contract amendments to the extent that the costs are recovered from the project applicant CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™159 COMMUNITY DEVELOPMENT - BUILDING CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3228 • FAX: (408) 777-3333 CITY COUNCIL STAFF REPORT Meeting: November 1, 2016 Subject New contracts and contract amendments for professional building department services for Apple Campus 2 Recommended Action Staff recommends that the City Council: 1. Authorize the City Manager to a. Execute Agreement with West Coast Code Consultants, Inc. (WC3) for professional building department services at Apple Campus 2 for a total amount not to exceed $821,720.00; b. Execute Agreement with CSG Consultants, Inc. for plan review services at Apple Campus 2 for a total amount not to exceed $1,120,000.00; c. Execute the Second Amendment to Agreement 14-028 with 4LEAF, Inc. for Apple Campus 2 Phase 1 building inspection services and public works inspection services to increase the previously authorized contract amount by $4,761,376.00 for a total amount not to exceed $15,126,478.00; and d. Execute the First Amendment to Agreement 15-146 with 4LEAF, Inc. for Apple Campus 2 Phase 2 building inspection services to increase the previously authorized contract amount by $567,531.00 for a total amount not to exceed $914,787.00. 2. Authorize the City Manager to execute contract amendments to the extent that the costs are recovered from the project applicant. Description WC3 has worked on behalf of the City of Cupertino on the Apple Campus 2 project for the past three years by providing in-house and off-site plan check engineers to review plans in a timely fashion. The scope of work includes in-house staff time and off-site staff time to review RFIs, ASIs, change orders, as-built drawings, and bulletins, and attend meetings and 160 2 coordinate document submittal for the City. The contract also enables the ongoing use of WC3’s proprietary electronic document management system. CSG Consultants will continue to provide plan review services, on-site plan review and coordination between building department and other approval agencies within the City of Cupertino and Santa Clara County Fire. The scope is increased to include plan review for the Phase 2 buildings. In January, 2014, 4LEAF proposed and was granted a contract from the City of Cupertino in the amount of $9,431,390 to cover the Phase 1 buildings. The first amendment to the contract with 4LEAF in May 2015 included an expanded scope of services for the Public Works Department in the amount of $933,712. The second amendment proposes to increase the budget amount by $4,761,376.00 to include additional services. In August, 2015, 4LEAF was awarded Phase 2 of the AC2 project for a contract amount of $347,256. The first amendment proposes to increase the budget amount by $567,531.00 to include additional services. The two amendments to 4LEAF, Inc. contracts will cover the scope of building inspection services on Apple Campus 2 Phase 1 and Phase 2 buildings through June 30, 2017 and public works inspections through August 31, 2017. Sustainability Impact No sustainability impact. Fiscal Impact The City of Cupertino will receive a 15% administration fee ($1,090,594.05) from the increased contract amount for all four contracts. Prepared by: Ari Lattanzi, Management Analyst Reviewed by: Albert Salvador, Building Official Aarti Shrivastava, Assistant City Manager Approved for Submission by: David Brandt, City Manager Attachments: A - Draft Agreement – WC3 for Apple Campus 2, 10-13-2016 B - Draft Agreement – CSG for Apple Campus 2, 10-20-2016 C - Draft Second Amendment – 4LEAF for Apple Campus 2, 10-20-2016 D - Draft First Amendment – 4LEAF for Apple Campus 2, 10-20-2016 161 Page 1 of 13 WC3 for AC2 10.17.2016 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND WEST COAST CODE CONSULTANTS, INC FOR APPLE CAMPUS 2 PROFESSIONAL BUILDING DEPARTMENT SERVICES THIS AGREEMENT, is entered into this thirteenth day of October, 2016, by and between the CITY OF CUPERTINO, a California municipal corporation ("City"), and West Coast Code Consultants, a California Corporation whose address is 2400 Camino Ramon, Suite #240, San Ramon, CA 94583 (hereinafter referred to as "Consultant") (collectively referred to as the “Parties”). RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement. C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for plan check engineering services at Apple Campus 2 upon the terms and conditions herein. NOW, THEREFORE, the Parties mutually agree as follows: 1. TERM The term of this Agreement shall commence on July 1, 2016, and shall terminate on December 31, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall perform each and every service set forth in Exhibit "A" pursuant to the schedule of performance set forth in Exhibit “B,” attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT Consultant shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed eight hundred and twenty-one thousand and seven hundred and twenty dollars ($821,720.00) based on the rates and terms set forth in Exhibit "C," which is attached hereto and incorporated herein by this reference. 4. TIME IS OF THE ESSENCE Consultant and City agree that time is of the essence regarding the performance of this Agreement. 162 Page 2 of 13 WC3 for AC2 10.17.2016 5. STANDARD OF CARE Consultant agrees to perform all services required by this Agreement in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES City and Consultant intend that the relationship between them created by this Agreement is that of independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA) Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 8. NON-DISCRIMINATION Consistent with City's policy prohibiting harassment and discrimination, Consultant agrees that it shall not harass or discriminate against a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, sexual orientation, or any other protected class. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS ☒ Standard Indemnification: Consultant shall, to the fullest extent allowed by law and without limitation of the provisions of this Agreement related to insurance, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or 163 Page 3 of 13 WC3 for AC2 10.17.2016 related to the negligent performance of this Agreement by Consultant or Consultant’s employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys’ fees of counsel of City’s choice, expert fees and all other costs and fees of litigation. The acceptance of the Services by City shall not operate as a waiver of the right of indemnification. The provisions of this Section survive the completion of the Services or termination of this Contract. 10. INSURANCE: A. General Requirements. On or before the commencement of the term of this Agreement, Consultant 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 the requirements listed in Exhibit “D”. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. B. Subrogation Waiver. Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. Failure to secure or maintain insurance. If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. Additional Insured. City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. Sufficiency of Insurance. The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with 164 Page 4 of 13 WC3 for AC2 10.17.2016 Consultant's insurance broker to determine adequate coverage for Consultant. F. Maximum Coverage and Limits. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the additional insured City. Furthermore, the requirements for coverage and limits shall be the minimum coverage and limits specified in this Agreement, or the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater. 11. CONFLICT OF INTEREST Consultant warrants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, that would conflict in any way with the performance of this Agreement, and that it will not employ any person having such an interest. Consultant agrees to advise City immediately if any conflict arises and understands that it may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 12. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. Consultant agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the indemnity and insurance requirements to the extent they apply to the scope of the subcontractor’s work. 165 Page 5 of 13 WC3 for AC2 10.17.2016 Subcontractors hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. Subcontractor further agrees to include these same provisions with any sub- subcontractor. A copy of the Owner Contract Document Indemnity and Insurance provisions will be furnished to the subcontractor upon request. Consultant shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to City. 14. PERMITS AND LICENSES Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and/or (4) Other City projects as City deems appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 16. RECORDS Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement, in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, 166 Page 6 of 13 WC3 for AC2 10.17.2016 documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after Consultant receives final payment from City for all services required under this agreement. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 17. NONAPPROPRIATION This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code and Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. 18. ENVIRONMENTALLY PREFERABLE PURCHASING Consultant shall comply with the City’s Environmentally Preferable Procurement Policy whenever practicable in completing any w ork under this agreement, including but not limited to: • Using paper products made with recycled content and recycled/remanufactured toner and ink jet cartridges; • Printing with soy or low volatile organic compounds (VOC) inks; • Using energy-star compliant equipment; • Using cleansers and working with janitorial contractors to meet Green Seal’s Industrial and Institutional Cleaners Standard; and • Ordering supplies electronically and practicing other internal waste reduction and reuse protocols. 19. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals shall be addressed as follows: TO CITY: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 Attention: Albert Salvador, Building Official 167 Page 7 of 13 WC3 for AC2 10.17.2016 TO CONSULTANT: Giyan Senaratne West Coast Code Consultants, Inc. 2400 Camino Ramon, Suite #240 San Ramon, CA 94583 20. TERMINATION In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If Consultant fails to cure the default within the time specified and according to the requirements set forth in City’s written notice of default, and in addition to any other remedy available to the City by law, the City Manager may terminate the Agreement by giving Consultant written notice thereof, which shall be effective immediately. The City Manager shall also have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Consultant as provided herein. Upon receipt of any notice of termination, Consultant shall immediately discontinue performance. City shall pay Consultant for services satisfactorily performed up to the effective date of termination. If the termination if for cause, City may deduct from such payment the amount of actual damage, if any, sustained by City due to Consultant’s failure to perform its material obligations under this Agreement. Upon termination, Consultant shall immediately deliver to the City any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by Consultant or given to Consultant, in connection with this Agreement. Such materials shall become the property of City. 21. COMPLIANCE Consultant shall comply with all state or federal laws and all ordinances, rules, policies and regulations enacted or issued by City. 22. CONFLICT OF LAW This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the Superior Court of the County of Santa Clara, State of California. 23. ADVERTISEMENT Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 24. WAIVER 168 Page 8 of 13 WC3 for AC2 10.17.2016 A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 25. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 26. AUTHORITY The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 27. INSERTED PROVISIONS Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 28. CAPTIONS AND TERMS The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. All unchecked boxes do not apply to this Agreement. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT West Coast Code Consultants By ___________________ Title ___________________ Date ___________________ MUNICIPAL CORPORATION City of Cupertino By ___________________ Title ___________________ Date ___________________ ☒ Over $175,000- Council Approval Required ☐ Over $45,000- Department Head Approval Required ☐ Up to $45,000- Designated Supervisor Approval Required RECOMMENDED FOR APPROVAL ________________________ Albert Salvador, Chief Building Official 169 Page 9 of 13 WC3 for AC2 10.17.2016 APPROVED AS TO FORM: _________________________ City Attorney ATTEST: __________________________ City Clerk Exhibits: (Check box for exhibits that apply to this contract and attach) ☒ Exhibit “A”- Scope of Services ☒ Exhibit “B”- Schedule of Performance ☒ Exhibit “C”- Compensation ☒ Exhibit “D”- Insurance Requirements and Proof of Insurance ☐ Exhibit “E”- Mandated Reporting Acknowledgement ☐ Exhibit “F”- Background/Fingerprint/TB Declaration ☐ Exhibit “G”- Nondiscrimination- State/Federal/HUD funded project ☐ Exhibit “H” – Request for City Manager to Waive Informal Bidding Requirements EXPENDITURE DISTRIBUTION ACCOUNT NUMBER AMOUNT PO #2017- Account: 100-73-714 900-923 Amount: $821,720.00 Total: $821,720.00 170 Contract No. ________ 10 WC3 for AC2 10.17.2016 Exhibit A Scope of Services Please consider this letter as West Coast Code Consultants (WC3) proposal to continue to provide the following services for the Apple Campus II project: In House Staff: • Provide Senior Plan Check Engineer in-house at the Apple Campus II site to review the following: • RFIs • ASIs • Change orders • As-built drawings • Bulletins • In addition, assist with the coordination of submittals with other City Departments, attend meetings, etc. Plan Reviews Performed at WC3 Offices: • Provide Senior Plan Check Engineer level staff to review submittals that are not reviewed and approved by the in-house staff at the Apple Campus II site. Document Control: • Use of WC3’s propriety eProcess360 electronic document managing system (EDMS) to perform the following: • Enable the Design Team to submit all required documents electronically to the City of Cupertino for plan review. • WC3 staff to review electronically the submittals and issue plan review comments. • WC3 staff to electronically approve documents on behalf of the City of Cupertino. • Continue to use the “RFI” EDMS to manage on going day-to-day revisions submitted by the design team. Click here to enter text. 171 October 13th, 2016 Mr. Albert Salvador, P.E., Chief Building Official City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 Re: Revised ~ Cost Proposal to Continue to Provide Professional Building Department Services for the Apple Campus 2 Project. Dear Mr. Salvador, It has been a pleasure for West Code Consultants, Inc. (WC3) to work on behalf of the City of Cupertino on the Apple Campus II project for the last three (3) years. Thank you for allowing WC3 to be part of your team. In accordance with your request, please consider this letter as West Coast Code Consultants (WC3) proposal to continue to provide the following services for the Apple Campus II project: In House Staff: • Provide Senior Plan Check Engineer in-house at the Apple Campus II site to review the following: o RFIs o ASIs o Change orders o As-built drawings o Bulletins o In addition, assist with the coordination of submittals with other City Departments, attend meetings, etc. Plan Reviews Performed at WC3 Offices: • Provide Senior Plan Check Engineer level staff to review submittals that are not reviewed and approved by the in-house staff at the Apple Campus II site. Document Control: • Use of WC3’s propriety eProcess360 electronic document managing system (EDMS) to perform the following: o Enable the Design Team to submit all required documents electronically to the City of Cupertino for plan review. o WC3 staff to review electronically the submittals and issue plan review comments. o WC3 staff to electronically approve documents on behalf of the City of Cupertino. o Continue to use the “RFI” EDMS to manage on going day-to-day revisions submitted by the design team. 172 WC3 Cost Proposal October 13th, 2016 Revised ~ Continue to Provide Professional Building Department Services for the Apple Campus 2 Project Page 2 WC3 proposes the following fees to continue to perform the building department services listed above: In-house Staff at the Apple Campus II site Estimate ~ 175 hrs./Month x $170.00 $ 30,000.00 Plan Reviews Performed at WC3 Offices Estimate ~ 185 hrs./Month x $160.00 $ 30,000.00 Document Control - EDMS System No Charge $ - Sub Total $ 60,000.00 Maximum NTE per Month w/ 15% Contingency $ 69,000.00 Total NTE Calculations: Unpaid invoice ~ # I-156-216-8-2 ~ for July 2016 ~ $ 62,720.00 Invoices for ~ Aug 2016 to June 2017 ~ 11 Months @ $69,000 $ 759,000.00 Total NTE till June 30, 2017 $ 821,720.00 The above plan review fees will be invoiced at the end of each month. In closing, we would like to thank you for the opportunity to continue to be of service to you, your staff, and the City of Cupertino. If you have any questions, please feel free to call me on my cell at (925) 766-5600 or my office at (925) 275-1700. Sincerely, Giyan A. Senaratne, S.E., P.E., LEED AP, CASp. Principal / CEO West Coast Code Consultants, Inc. - WC3 2400 Camino Ramon, Suite #240 San Ramon, CA – 94583 m:\1-a - proposals\california\northern california\cupertino\2016 - september - contract extension\fee proposal - september 23, 2016.docx 173 Contract No. ________ 11 WC3 for AC2 10.17.2016 Exhibit B Schedule of Performance This contract covers an invoice for work in July 2016 through December 31, 2017. 174 Contract No. ________ 12 WC3 for AC2 10.17.2016 Exhibit C Compensation City shall compensate Consultant for professional services in accordance with the terms and conditions of this Agreement based on the rates and compensation schedule set forth below. Compensation shall be calculated based on the hourly rates set forth below up to the not to exceed budget amount set forth below. The compensation to be paid to Consultant under this Agreement for all services described in Exhibit “A” and reimbursable expenses shall not exceed a total of eight hundred and twenty-one thousand and seven hundred and twenty dollars ($821,720.00), as set forth below. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the City. Task Not to Exceed Amount Unpaid invoice #I-156-216-8-2 July 2016 $ 62,720.00 In-house staff at Apple Campus 2 site $333,000.00 Plan Reviews at WC3 Offices $330,000.00 Contingency $ 99,000.00 Total $821,720.00 Rates In-house Senior Plan Check Engineer - $170 per hour WC3 Office Plan Check Engineer - $160 per hour Invoices ☒ Monthly Invoicing: In order to request payment, Consultant shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including a summary of work performed during that period, personnel who performed the services, hours worked, task(s) for which work was performed). Reimbursable Expenses Administrative, overhead, secretarial time or overtime, word processing, photocopying, in house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. Travel expenses must be authorized in advance and shall only be reimbursed to the extent consistent with City travel policy. Additional Services Consultant shall provide additional services outside of the services identified in Exhibit A only by advance written authorization from the City’s Project Manager prior to commencement of any additional services. Consultant shall submit, at the Project Manager’s request, a detailed written proposal including a description of the scope of additional services, schedule, and proposed maximum compensation. 175 Contract No. ________ 13 WC3 for AC2 10.17.2016 Exhibit D Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured. Consultant shall maintain the following minimum insurance coverage: A. COVERAGE: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $250,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $1,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence ☒ (4) Professional Liability Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. 176 Page 1 of 11 CSG Consultants for AC2, 10.20.2016 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND CSG CONSULTANTS, INC. FOR APPLE CAMPUS 2 PLAN REVIEW SERVICES THIS AGREEMENT, is entered into this twentieth day of October, 2016, by and between the CITY OF CUPERTINO, a California municipal corporation ("City"), and CSG Consultants, Inc., a California Corporation whose address is 550 Pilgrim Drive, Foster City, California 94404 (hereinafter referred to as "Consultant") (collectively referred to as the “Parties”). RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement. C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for plan review services at Apple Campus 2 upon the terms and conditions herein. NOW, THEREFORE, the Parties mutually agree as follows: 1. TERM The term of this Agreement shall commence on October 20, 2016, and shall terminate on December 31, 2018, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall perform each and every service pursuant to the schedule of performance set forth in Exhibit “A,” attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT Consultant shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed one million one hundred and twenty thousand dollars ($1,120,000.00) based on the rates and terms set forth in Exhibit “A.” 4. TIME IS OF THE ESSENCE Consultant and City agree that time is of the essence regarding the performance of this Agreement. 5. STANDARD OF CARE Consultant agrees to perform all services required by this Agreement in a manner 177 Page 2 of 11 CSG Consultants for AC2, 10.20.2016 commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES City and Consultant intend that the relationship between them created by this Agreement is that of independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA) Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 8. NON-DISCRIMINATION Consistent with City's policy prohibiting harassment and discrimination, Consultant agrees that it shall not harass or discriminate against a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, sexual orientation, or any other protected class. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS ☒ Standard Indemnification: Consultant shall, to the fullest extent allowed by law and without limitation of the provisions of this Agreement related to insurance, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the negligent performance of this Agreement by Consultant or Consultant’s employees, officers, officials, agents or independent contractors. Such costs and 178 Page 3 of 11 CSG Consultants for AC2, 10.20.2016 expenses shall include reasonable attorneys’ fees of counsel of City’s choice, expert fees and all other costs and fees of litigation. The acceptance of the Services by City shall not operate as a waiver of the right of indemnification. The provisions of this Section survive the completion of the Services or termination of this Contract. 10. INSURANCE: A. General Requirements. On or before the commencement of the term of this Agreement, Consultant 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 the requirements listed in Exhibit “D”. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. B. Subrogation Waiver. Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. Failure to secure or maintain insurance. If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. Additional Insured. City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. Sufficiency of Insurance. The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. F. Maximum Coverage and Limits. It shall be a requirement under this 179 Page 4 of 11 CSG Consultants for AC2, 10.20.2016 Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the additional insured City. Furthermore, the requirements for coverage and limits shall be the minimum coverage and limits specified in this Agreement, or the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater. 11. CONFLICT OF INTEREST Consultant warrants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, that would conflict in any way with the performance of this Agreement, and that it will not employ any person having such an interest. Consultant agrees to advise City immediately if any conflict arises and understands that it may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 12. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. Consultant agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the indemnity and insurance requirements to the extent they apply to the scope of the subcontractor’s work. Subcontractors hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement. 180 Page 5 of 11 CSG Consultants for AC2, 10.20.2016 Subcontractor further agrees to include these same provisions with any sub- subcontractor. A copy of the Owner Contract Document Indemnity and Insurance provisions will be furnished to the subcontractor upon request. Consultant shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to City. 14. PERMITS AND LICENSES Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and/or (4) Other City projects as City deems appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 16. RECORDS Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement, in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and 181 Page 6 of 11 CSG Consultants for AC2, 10.20.2016 shall be maintained for a period of three (3) years after Consultant receives final payment from City for all services required under this agreement. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 17. NONAPPROPRIATION This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code and Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. 18. ENVIRONMENTALLY PREFERABLE PURCHASING Consultant shall comply with the City’s Environmentally Preferable Procurement Policy whenever practicable in completing any w ork under this agreement, including but not limited to: • Using paper products made with recycled content and recycled/remanufactured toner and ink jet cartridges; • Printing with soy or low volatile organic compounds (VOC) inks; • Using energy-star compliant equipment; • Using cleansers and working with janitorial contractors to meet Green Seal’s Industrial and Institutional Cleaners Standard; and • Ordering supplies electronically and practicing other internal waste reduction and reuse protocols. 19. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals shall be addressed as follows: TO CITY: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Albert Salvador, Building official 182 Page 7 of 11 CSG Consultants for AC2, 10.20.2016 TO CONSULTANT: Michael Loomis CSG Consultants, Inc. 550 Pilgrim Drive Foster City, CA 94404 20. TERMINATION In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If Consultant fails to cure the default within the time specified and according to the requirements set forth in City’s written notice of default, and in addition to any other remedy available to the City by law, the City Manager may terminate the Agreement by giving Consultant written notice thereof, which shall be effective immediately. The City Manager shall also have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Consultant as provided herein. Upon receipt of any notice of termination, Consultant shall immediately discontinue performance. City shall pay Consultant for services satisfactorily performed up to the effective date of termination. If the termination if for cause, City may deduct from such payment the amount of actual damage, if any, sustained by City due to Consultant’s failure to perform its material obligations under this Agreement. Upon termination, Consultant shall immediately deliver to the City any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by Consultant or given to Consultant, in connection with this Agreement. Such materials shall become the property of City. 21. COMPLIANCE Consultant shall comply with all state or federal laws and all ordinances, rules, policies and regulations enacted or issued by City. 22. CONFLICT OF LAW This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the Superior Court of the County of Santa Clara, State of California. 23. ADVERTISEMENT Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 24. WAIVER 183 Page 8 of 11 CSG Consultants for AC2, 10.20.2016 A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 25. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 26. AUTHORITY The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 27. INSERTED PROVISIONS Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 28. CAPTIONS AND TERMS The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. All unchecked boxes do not apply to this Agreement. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT CSG Consultants, Inc. By ___________________ Title ___________________ Date __________________ MUNICIPAL CORPORATION City of Cupertino By ___________________ Title ___________________ Date __________________ ☒ Over $175,000- Council Approval Required ☐ Over $45,000- Department Head Approval Required ☐ Up to $45,000- Designated Supervisor Approval Required RECOMMENDED FOR APPROVAL ________________________ Albert Salvador, Building Official 184 Page 9 of 11 CSG Consultants for AC2, 10.20.2016 APPROVED AS TO FORM: _________________________ City Attorney ATTEST: __________________________ City Clerk Exhibits: (Check box for exhibits that apply to this contract and attach) ☒ Exhibit “A”- Scope of Services, Schedule of Performance, Compensation ☒ Exhibit “B”- Insurance Requirements and Proof of Insurance EXPENDITURE DISTRIBUTION PO # 2017- 100-73-714 900-923 Amount $1,120,000.00 Total $1,120,000.00 185 550 Pilgrim Drive Foster City, CA 94404 phone 650.522.2500 fax 650.522.2599 www.csgengr.com FOSTER CITY | PLEASANTON | SAN JOSE | SACRAMENTO | NEWMAN | ORANGE October 20, 2016 Mr. Salvador, CSG Consultants is pleased to present the following extension request for our contract on the Apple 2 Campus project to perform building plan review and related services. This extension request is intended to serve to the completion of all phases of the project and is effective until December 31, 2018. Should work on these projects extend beyond December 31, 2018, the terms of the original contract and this extension request will remain in effect until final certificate of occupancy is issued for all buildings on the site. Except the below stated adjustment to the scope and fees noted below, all other terms of the previously approved contract remain unchanged. Scope of Services CSG Consultants will continue to provide plan review services, on-site plan review and coordination between building department and other approval agencies within the City of Cupertino and Santa Clara County Fire. On-site plan review services are currently limited to 2 days (16 hours) per week and will continue as long as deemed beneficial for the project by the City of Cupertino and the applicant. The scope of hereby increased to include plan review for the “Marcom” building. This building was not originally included in the previous contract. Scope of work for this building will include plan review of permit submittals, RFIs, Deferred Submittals. Refer to the fee section below for related costs for this review. Fees Based on the level of completion of each building on site, the attached fees cover the remaining costs to perform all work to completion of the project. The fees below represents to total, not to exceed, fee to complete the project and is in addition to fees already paid by the City of Cupertino. They are not in addition to the fees quoted in the original proposal. Fee allocation per building/permit is approximate based on the status of the ongoing construction. Total fee to complete all phases and buildings: $1,120,000 Please sign and return this letter as acceptance of this extension request. If you have any questions, please feel free to contact me or Shweta Prakash. Regards, Accepted by: Michael Loomis, S.E., CASp, CBO ________________________________________ Principal Structural Engineer City of Cupertino Date CC: Cyrus Kianpuor, President, CSG Consultants Inc. Shweta Prakash, P.E. Exhibit A 186 2 Apple 2 Campus Project Remaining Scope Fee to completion Phase I 5 Site Structures Building permit review ongoing; review of RFIs, deferred submittals; review up to 5 addendum submittals per building. $40,000 Theater Review of RFIs, deferred submittals; review up to 4 addendum submittals. $50,000 Fitness Center Review of RFIs, deferred submittals; review up to 4 addendum submittals. $40,000 General Administration Attend coordination meetings, processing of submittals, coordination with other City departments. $100,000 Phase II Office Building Review of RFIs, deferred submittals; review up to 4 addendum submittals. $50,000 Parking Structure Review of RFIs, deferred submittals; review up to 4 addendum submittals. $60,000 R & D North and South Building permit review ongoing; review of RFIs, deferred submittals; review up to 5 addendum submittals per building. $150,000 Visitor’s Center Building permit review ongoing; review of RFIs, deferred submittals; review up to 4 addendum submittals. $90,000 Marcom Building* Project not yet submitted for review. Scope includes review for permit issuance; review of RFIs, deferred submittals; review up to 5 addendum submittals. $190,000 General Administration Attend coordination meetings; processing of submittals; coordination with other City departments. $50,000 On-Site Plan Review Up to 2 days per week as needed for project requirements. $300,000 Total $1,120,000 187 Contract No. ________ 11 CSG Consultants for AC2 10.20.2016 Exhibit B Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured. Consultant shall maintain the following minimum insurance coverage: A. COVERAGE: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $250,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $1,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence ☒ (4) Professional Liability Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. 188 SECOND AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND 4LEAF, INC. FOR BUILDING AND PUBLIC WORKS INSPECTIONS AT APPLE CAMPUS 2 This Second Amendment to the Agreement between the City of Cupertino and 4LEAF, Inc., for reference dated October 20, 2016, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and 4LEAF, Inc., a California Corporation (“Consultant”) whose address is 2110 Rheem Drive, Suite A, Pleasanton, CA 94588 and is made with reference to the following: RECITALS: A. On February 10, 2014, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for Phase 1 building inspection and public works inspections at Apple Campus 2. B. City and Consultant desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. SERVICES TO BE PERFORMED: Paragraph 2 of the Agreement is modified to read as follows: Consultant shall perform building inspection and public works inspection, set forth in Exhibit A, which is attached hereto and incorporated herein by this reference. 2. COMPENSATION TO CONSULTANT: Paragraph 3 of the agreement is modified to read as follows: Compensation shall be increased by this amendment in the amount not to exceed $3,450,399 for Phase 1 Building Inspections and $1,310,977 for Public Works Inspections for a total contract amount not to exceed $15,126,478. 3. The following Exhibits to the Agreement, are amended and replaced to read as shown in the attachments to this Amendment: a. Exhibit “A,”- Apple Campus 2 Inspection Service Estimates August 1, 2016 – June 30, 2017 4. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. 189 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CONSULTANT MUNICIPAL CORPORATION 4LEAF, Inc. City of Cupertino By____________________ By: ___________________ Title __________________ Title __________________ Date __________________ RECOMMENDED FOR APPROVAL: By: _________________ Title ________________ APPROVED AS TO FORM: ____________________ City Attorney ATTEST: ____________________ City Clerk EXPENDITURE DISTRIBUTION PO #2015-57 100-73-714 900-923 Building Inspection 100-82-805 900-923 Public Works Inspection Both Accounts Original Contract $8,310,998.00 $1,120,392.00 $9,431,390.00 Amendment #1 - $933,712.00 $933,712.00 Amendment #2 $3,450,399.00 $1,310,977.00 $4,761,376.00 Total $11,761,397.00 $3,365,081.00 $15,126,478.00 190 Engineering  Construction Management  Inspection  Plan Check 2110 Rheem Drive, Suite A  Pleasanton, CA 94588  Phone (925) 462-5959  Fax (925) 462-5958 Albert Salvador, P.E., CBO September 7, 2016 Chief Building Official 10300 Torre Ave Cupertino, CA 93014 RE: Apple Campus 2 Inspection Services Estimates (August 1, 2016 – June 30, 2017) Dear Mr. Salvador, We wanted to first say thank you for the opportunity to serve the City of Cupertino on the Apple Campus 2 (AC2) Project. We feel our partnership with the City has made for a very success project thus far and we hope to continue providing the same level of exemplary service the City has come to expect. We feel it is best to recap where we are today in hopes of providing an accurate accounting of the current contract and to propose an estimate and fee schedule to complete the project that has gone beyond the initial 31 Month estimate. Recap: In December of 2013, 4LEAF was awarded a Professional Services contract to provide Building and Public Works Inspections on behalf of the City of Cupertino. Based on the information provided by the City through the successful RFP process and subsequent information, the City of Cupertino requested a budget to include 31 Months of inspection and project administration services to cover January, 2014 through July, 2016. The Agreement was executed in February, 2014 and the contract term is valid through December, 2017. Phase 1 In January, 2014, 4LEAF proposed and was granted a contract from the City of Cupertino in the amount of $9,431,390 to cover the 31 month period. 4LEAF was also granted two smaller contracts to cover other items not addressed in the RFP including a $54,000 contract for the Sound Wall, Batch Plant, and Demo Inspections and a contract for Temporary Facilities in the amount of $56,000. 4LEAF also received an increase in budget for an expanded scope of services for the Public Works Department in the amount of $933,712 in May, 2015. Here is the current cost accounting for the entirety of the 31 month budget: Job # Project Contracts Budget Per Contract % Of Budget Complete Total Billed To Date Remaining Budget Status J1848 AC2 Building Inspection $8,310,998 87.29% $7,255,037 $1,055,961 Open J1848 AC2 Public Works Inspection $2,054,104 109% $2,233,125 ($179,021) Open J1860 AC2 Sound Wall, Batch, Demo $54,000 64.12% $34,625 $19,375 Closed J1866 AC2 Temp Facilities $56,000 90% $50,668 $5,332 Closed TOTALS 10,475,102 91.39% $9,573,455 $901,647 Exhibit A 191 Engineering  Construction Management  Inspection  Plan Check 2110 Rheem Drive, Suite A  Pleasanton, CA 94588  Phone (925) 462-5959  Fax (925) 462-5958 4LEAF has provided the City a monthly summary report of all accounts as part of our invoicing procedures. Although we haven’t been formally notified, we understand that the AC2 project is behind its anticipated 31 Month construction schedule. Per the City’s request, 4LEAF has prepared a budget for the anticipated 11 Months to include September 1, 2016 through June 30, 2017. 4LEAF has utilized the current fee schedule and terms and conditions that exist in our Agreement. We have not provided a budget for August as the month is complete and we currently have a budget surplus. Phase 2 In August, 2015, 4LEAF was awarded Phase 2 of the AC2 project. With limited information and scope, 4LEAF proposed and was granted a contract for $347,256. Here is the current cost accounting for the Phase 2 Project: Job # Project Contracts Budget Per Contract % Of Budget Complete Total Billed To Date Remaining Budget J1865 AC2 Phase 2 $347,256 141% $490,016 ($142,760) TOTALS $347,256 141% $490,016 ($142,760) 4LEAF has provided: •Estimate of fees for Phase 1 including breakdown of Full Time Equivalent (FTE) count by staff type per each month of construction. Phase 1 includes Main Building, Restaurant, Fitness Center, Corporate Theatre, North and South Parking Structures, and Central Plant. •A copy of 4LEAF’s Public Works estimate submitted under separate cover to Chad Mosely in July, 2016. •Current Fee Schedule and Basis of Charges, including terms and conditions. Not Included: •Invoice for August, 2016 (Pending) 192 Engineering  Construction Management  Inspection  Plan Check 2110 Rheem Drive, Suite A  Pleasanton, CA 94588  Phone (925) 462-5959  Fax (925) 462-5958 We look forward to the opportunity to continue to serve the City of Cupertino. Should you have any questions, I may be reached on my office phone at (925) 462‐5959 or by cellular phone at (925) 580‐ 4055. You may also reach me at ctole@4leafinc.com. Sincerely, 4LEAF, Inc. Craig Tole Director of Development Services/Principal Project Manager 193 Ci t y o f C u p e r t i n o - A p p l e 2 C a m p u s - I n s p e c t i o n S e r v i c e s Pr e l i m i n a r y M a n p o w e r a n d C o s t E s t i m a t e Ju l y . A u g S e p t . O c t . N o v . D e c . J a n F e b M a r . A p r . M a y J u n e Ta s k Ph a s e 1 On - S i t e B u i l d i n g In s p e c t i o n s AC 2 M a i n B u i l d i n g & R e s t a u r a n t AC 2 T h e a t r e AC 2 F i t n e s s C e n t e r AC 2 C e n t r a l P l a n t AC 2 P a r k i n g S t r u c t u r e On - S i t e a n d O f f - S i t e P u b l i c W o r k s an d P h a s e 2 I n s p e c t i o n s Pr o v i d e d o n S e p a r a t e E s t i m a t e LE A D I N S P E C T O R E s t i m a t e d F T E s 0 3 . 7 5 3 . 7 5 3 . 7 5 3 . 7 5 3 . 7 5 3 . 7 5 3. 7 5 3 . 7 5 3. 7 5 3 . 7 5 3 . 7 5 E s t i m a t e d H o u r s 0 6 9 0 6 3 0 6 3 0 6 0 0 6 3 0 6 3 0 57 0 6 9 0 60 0 6 9 0 6 6 0 7,020 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 9 7 $ 8 8 $ 8 8 $ 8 4 $ 8 8 $9 4 $8 5 $ 1 0 3 $ 8 9 $ 1 0 3 $ 9 8 $1,018,319 AS S I S T A N T I N S P E C T O R S E s t i m a t e d F T E s 0 1 1 . 5 1 1 . 5 1 1 . 5 9 . 5 7 6 5 3 . 5 2 . 5 1 . 5 0 . 5 E s t i m a t e d H o u r s 0 2 , 1 1 6 1 , 9 3 2 1 , 9 3 2 1 , 5 2 0 1 , 1 7 6 1 0 0 8 76 0 6 4 4 40 0 2 7 6 8 8 11,852 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 2 5 0 $ 2 2 8 $ 2 2 8 $ 1 7 9 $ 1 3 9 $1 2 6 $ 9 5 $ 8 1 $ 5 0 $ 3 5 $ 1 1 $1,420,781 AD M I N I S T R A T O R E s t i m a t e d F T E s 0 0 0 0 . 5 0 . 5 0 . 5 0 . 5 00 00 0 E s t i m a t e d H o u r s 0 0 0 8 4 8 0 8 4 8 4 00 0 0 0 332 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 7 $ 7 $ 7 $7 $ 0 $ 0 $ 0 $ 0 $ 0 $28,025 PW R E S I D E N T E N G I N E E R ( S e p a r a t e ) E s t i m a t e d F T E s 0 0 0 0 0 0 0 00 00 0 E s t i m a t e d H o u r s 0 0 0 0 0 0 0 00 00 0 0 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 PW I N S P E C T O R ( S e p a r a t e ) E s t i m a t e d F T E s 0 0 0 0 0 0 0 00 00 0 E s t i m a t e d H o u r s 0 0 0 0 0 0 0 00 00 0 0 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 OF F I C E E N G I N E E R E s t i m a t e d F T E s 0 1 . 7 5 1 . 7 5 1 . 7 5 1 . 7 5 1 . 7 5 1 . 7 5 1. 2 5 1 . 2 5 1. 2 5 1 . 2 5 0 . 7 5 E s t i m a t e d H o u r s 0 3 2 2 2 9 4 2 9 4 2 8 0 2 9 4 2 9 4 19 0 2 3 0 20 0 2 3 0 1 3 2 2,760 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 4 5 $ 4 1 $ 4 1 $ 3 9 $ 4 1 $4 4 $ 2 8 $ 3 4 $ 3 0 $ 3 4 $ 2 0 $398,395 PR O J E C T M A N A G E M E N T E s t i m a t e d F T E s 0 0 . 1 0 . 1 0 . 1 0 . 1 0 . 1 0 . 1 0. 1 0 . 1 0. 1 0 . 1 0 . 1 E s t i m a t e d H o u r s 0 1 8 1 7 1 7 1 6 1 7 1 6 . 8 15 . 2 1 8 . 4 16 1 8 1 8 187 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 5 $ 5 $ 5 $ 4 $ 5 $5 $ 5 $ 5 $ 5 $ 5 $ 5 $54,310 Al l o w a n c e f o r O v e r t i m e ( 1 5 % ) $525,569 OD C s ( S o f t w a r e , L i b r a r y , S i t e T r a n s p o r t , e t c . ) $5,000 $3,450,399 No t e s : Pu b l i c W o r k s a n d P h a s e 2 E s t i m a t e s a r e e a c h p r o v i d e d u n d e r s e p a r a t e c o v e r . Ju l y ' 2 0 1 6 b u d g e t n o t s h o w n a s t h e M o n t h i s c o m p l e t e a n d c o v e r e d u n d e r i n i t i a l 3 1 M o n t h c o s t s c h e d u l e . No C o n s t r u c t i o n S c h e d u l e s w e r e p r o v i d e d t o 4 L E A F . 20 1 6 20 1 7 OD C s - O t h e r D i r e c t C o s t s . Th i s s c h e d u l e i s t o d e m o n s t r a t e o u r p r o j e c t e d c o s t s f o r s e r v i c e s . T h i s e s t i m a t e i s f o r t h e t i m e p e r i o d o f A u g u s t , 2 0 1 6 t h r o u g h J u n e , 2 0 1 7 . T h e s e s e r v i c e s a r e b e y o n d t h e i n i t i a l 3 1 Mo n t h C o n s t r u c t i o n S c h e d u l e ( J a n u a r y 2 0 1 4 t h r o u g h J u l y 2 0 1 6 ) t h a t w a s b u d g e t e d b y t h e C i t y a t t i m e o f c o n t r a c t a w a r d . T h i s 1 1 m o n t h s c h e d u l e i s i n t e n d e d t o s h o w o u r c u r r e n t un d e r s t a n d i n g o f t h e p r o j e c t s c o p e . A n y h o u r s o r s t a f f i n g i n a d d i t i o n t o t h e q u a n t i t i e s l i s t e d a b o v e w i l l r e q u i r e a d v a n c e d w r i t t e n a u t h o r i z a t i o n f r o m t h e C i t y ’ s C h i e f B u i l d i n g O f f i c i a l pr i o r t o c o m m e n c e m e n t o f a n y a d d i t i o n a l s e r v i c e s . C o n s u l t a n t s h a l l s u b m i t , a t t h e C h i e f B u i l d i n g O f f i c i a l ’ s r e q u e s t , a d e t a i l e d w r i t t e n p r o p o s a l i n c l u d i n g a d e s c r i p t i o n o f t h e s c o p e of a d d i t i o n a l s e r v i c e s , s c h e d u l e , a n d p r o p o s e d m a x i m u m c o m p e n s a t i o n . 4 L E A F d o e s n o t c o n t r o l c o n t r a c t o r s m e a n s a n d m e t h o d s a n d w i l l s e r v i c e a l l i n s p e c t i o n r e q u e s t s p e r d i r e c t i o n of t h e C i t y o f C u p e r t i n o . Es t i m a t e d c o s t s i n c l u d e 6 % A n n u a l E s c a l a t i o n f o r h o u r l y r a t e s f o r Y e a r s 2 0 1 6 a n d 2 0 1 7 FT E - F u l l - T i m e E q u i v a l e n t . Se e a t t a c h e d F e e S c h e d u l e f o r h o u r l y r a t e s a n d b a s i s o f c h a r g e s . To t a l E s t i m a t e d C o s t s : 9/7/2016 19 4 Fe e Pr o p o s a l to Pe r f o r m Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t i o n Se r v i c e s Be t w e e n Ju n e 20 1 6 an d th e Pr o j e c t Co m p l e t i o n fo r th e AC 2 Pr o j e c t fo r th e Ci t y of Cu p e r t i n o Fe e Pr o p o s a l Al t e r n a t i v e 1: Pe r f o r m Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t i o n s Be t w e e n Ju n e 1, 20 1 6 an d Ma y 31 , 20 1 7 . Ta s k Su b Ta s k Ta s k De s c r i p t i o n Project Manager (RT Hours) (Calendar Year 2016) Project Manager (RT Hours) (Calendar Year 2017) Resident Engineer (RT Hours) (Calendar Year 2016) Resident Engineer (OT Hrs) (Calendar Year 2016) Public Works Inspector (RT Hours) (Calendar Year 2016) Public Works Inspector (OT Hours) (Calendar Year 2016) Public Works Inspector (Double Time Hours) (Calendar Year 2016) 2nd Public Works Inspector (RT Hours) (June 2016) 2nd Public Works Inspector (OT Hours) (June 2016) Resident Engineer (RT Hours) (Calendar Year 2017) Resident Engineer (OT Hrs) (Calendar Year 2017) Public Works Inspector (RT Hours) (Calendar Year 2017) Public Works Inspector (OT Hours) (Calendar Year 2017) Public Works Inspector (Double Time Hours) (Calendar Year 2017) Total Hours Cost Per Task Notes Ho u r l y Ra t e $1 5 7 . 3 0 $ 1 6 6 . 7 4 $ 2 2 8 . 9 6 $ 3 4 3 . 4 4 $ 1 9 6 . 6 3 $ 2 9 4 . 9 5 $ 3 9 3 . 2 6 $ 1 9 6 . 6 3 $ 2 9 4 . 9 5 $ 2 4 2 . 7 0 $ 3 6 4 . 0 5 $ 2 0 8 . 4 3 $ 3 1 2 . 6 4 $ 4 1 6 . 8 6 See Note (a) 1 Pe r f o r m Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t i o n s (J u n e 1, 20 1 6 th r o u g h Ma y 31 , 20 1 7 ) Ho u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s 1a Pe r f o r m Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t i o n s fo r Ph a s e 3 St r e e t s c a p e Ac t i v i t i e s be t w e e n Ju n e 1, 20 1 6 an d Ma y 31 , 20 1 7 . 00 1, 1 0 4 3 1 , 1 8 4 1 6 6 4 4 8 3 8 4 0 0 8 4 0 6 4 8 0 4 , 3 3 5 $ 9 7 9 , 4 2 8 See Notes (b) & (c). 1b P r o j e c t Ma n a g e m e n t . 16 0 1 2 5 0 0 00 0 0 0 0 0 0 0 0 2 8 5 $45,932See Note (d) 4, 6 1 9 $ 1 , 0 2 5 , 3 6 0 Fe e Pr o p o sal Al t e r n a t i v e 2: On ‐Si t e St o r m Dr a i n Ut i l i t i e s In s p e c t i o n s (O v e r t i m e ) . 2 Pe r f o r m Pu b l i c Wo r k s In s p e c t i o n s fo r On ‐Si t e St o r m Dr a i n a g e Fa c i l i t i e s . Ho u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s 2a Pe r f o r m On ‐Si t e St o r m Dr a i n Ut i l i t i e s In s p e c t i o n s (O v e r t i m e ) . 00 00 0 1 2 6 0 0 0 0 0 0 0 0 1 2 6 $37,163See Note (e) 12 6 $ 3 7 , 1 6 3 Fe e Pr o p o s a l Al t e r n a t i v e 3: Co n t i n g e n c y in th e Ev e n t th a t th e Co m p l e t i o n Da t e Ex t e n d s Pa s t Ma y 31 , 20 1 7 (a s s u m e s pr o j e c t co m p l e t i o n da t e of Au g u s t 31 , 20 1 7 ) . 3 Pe r f o r m Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t i o n s (J u n e 1, 20 1 7 to Au g u s t 31 , 20 1 7 ) Ho u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s H o u r s 3a Pe r f o r m Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t i o n s fo r Ph a s e 3 St r e e t s c a p e Ac t i v i t i e s be t w e e n Ju n e 1, 20 1 7 an d Au g u s t 31 , 20 1 7 : 00 00 0 0 0 0 0 5 2 0 0 5 2 0 0 0 1, 0 4 0 $ 2 3 4 , 5 8 5 S e e Note (f) 3b P r o j e c t Ma n a g e m e n t 0 8 2 0 0 00 0 0 0 0 0 0 0 0 8 2 $13,869See Note (g) 1, 1 2 2 $ 2 4 8 , 4 5 4 Alt e r n a t i v e 1 To t a l s : Alt e r n a t i v e 2 To t a l s : Alt e r n a t i v e 3 To t a l s : (g ) A s s u m e s 6 ho u r s pe r we e k fo r Pr o j e c t Ma n a g e m e n t be t w e e n Ju n e 1, 20 1 7 an d Au g u s t 31 , 20 1 7 . (e ) A s s u m e s (1 ) Ov e r ‐Ti m e In s p e c t o r fo r 6 mo n t h s (A s s u m e s 21 wo r k i n g da y s / m o n t h 1 hr / d a y fo r 6 mo n t h s ) . (b ) As s u m e s on e fu l l ‐ti m e Re s i d e n t En g i n e e r an d on e fu l l ‐ti m e Pu b l i c Wo r k s In s p e c t o r to pe r f o r m al l of f ‐si t e pu b l i c wo r k s in s p e c t i o n s an d on ‐si t e in s p e c t i o n s fo r gr a d i n g an d re t e n t i o n ba s i n s on l y (n o in s p e c t i o n s of on ‐si t e st o r m drain lines or concrete pours for ma n h o l e s or ca t c h ba s i n s ) . As s u m e s 20 wo r k i n g da y s in Ju l y , 23 wo r k i n g da y s in Au g u s t , 21 wo r k i n g da y s in Se p t e m b e r , 21 wo r k i n g da y s in Oc t o b e r , 20 wo r k i n g da y s in No v e m b e r , an d 21 wo r k i n g da y s in De c e m b e r . Al s o as s u m e s 8 hours of overtime (OT) per week be t w e e n Ju n e 1, 20 1 6 an d Au g u s t 31 , 20 1 6 . (a ) T h e ho u r l y ra t e s fo r Pr o j e c t Ma n a g e r , Re s i d e n t En g i n e e r an d Pu b l i c Wo r k s In s p e c t o r fo r Ja n u a r y 20 1 7 in c l u d e a 6% an n u a l es c a l a t i o n . (d ) A s s u m e s 6 ho u r s pe r we e k fo r Pr o j e c t Ma n a g e m e n t be t w e e n Ju n e 20 1 6 an d Ma y 20 1 7 . (f ) A s s u m e s on e fu l l ‐ti m e Re s i d e n t En g i n e e r an d on e fu l l ‐ti m e In s p e c t o r be t w e e n Ju n e 1, 20 1 7 an d Au g u s t 31 , 20 1 7 (A s s u m e s 22 da y s in Ju n e , 20 da y s in Ju l y , an d 23 da y s in Au g u s t ) . As s u m e s no ad d i t i o n a l OT Mo n d a y ‐Fr i d a y or on weekends or holidays. (c ) A s s u m e s on e fu l l ‐ti m e Re s i d e n t En g i n e e r an d on e fu l l ‐ti m e Pu b l i c Wo r k s In s p e c t o r in Ja n u a r y 20 1 7 (2 1 wo r k i n g da y s in Ja n u a r y ) . As s u m e s on e fu l l ‐ti m e Re s i d e n t En g i n e e r (M ‐F) , on e fu l l ‐ti m e Pu b l i c Wo r k s In s p e c t o r (M ‐F) , and one Public Works Inspector for two (2) we e k e n d s pe r mo n t h (1 0 hr s / d a y on Sa t u r d a y s an d 8 hr s / d a y on Su n d a y s ) du r i n g th e mo n t h s of Fe b r u a r y , Ma r c h , Ap r i l , an d Ma y 20 1 7 . As s u m e s 19 wo r k i n g da y s in Fe b r u a r y 20 1 7 , 23 wo r k i n g da y s in Ma r c h 20 1 7 , 20 wo r k i n g da y s in April 2017, and 22 working days in Ma y 20 1 7 . Th e we e k e n d OT in c l u d e s 8 ho u r s at 1. 5 x ho u r l y ra t e an d 2 ho u r s at 2x ho u r l y ra t e on Sa t u r d a y s at 1. 5 x ho u r l y ra t e an d 8 ho u r s on Su n d a y s at do u b l e ‐ti m e ra t e . 1 of 1 19 5 Fee Schedule and Basis of Charges for the Apple Campus 2 Project Page 1 of 1 January 3, 2014 INSPECTION FEE SCHEDULE & BASIS OF CHARGES FOR APPLE CAMPUS 2 Field Services* Lead Inspector $ 125 per hour Assistant Inspector $ 105 per hour Plan Reviewer $ 157 per hour Public Works Resident Engineer $ 224 per hour Public Works Inspector $ 175 per hour Office Engineer $ 125 per hour Project Administrator $ 74 per hour Office Services* Principal (Direct Charge only) $ 250 per hour Project Manager (Direct Charge only) $ 250 per hour Other Direct Charges* CA Code Book Library** (if provided by 4LEAF) $1,200 each Site Vehicles ** $1,000 per month each Personal Computer ** $ 1 per hour surcharge Field Tablet and/or Mobile Assistant ** $ 1 per hour surcharge GoFormz software ** $ 25 per month per user Personal Protective Equipment (PPE)** Cost + 20% Internet Access (MIFI, WIFI, or 3G)** Cost + 20% Office or Administrative furnishings and consumables** Cost + 20% *All Fees Subject to Basis of Charges **If provided by 4LEAF BASIS OF CHARGES All time and materials invoices will be submitted monthly. Work is subject to 4 hour minimum charges unless stated otherwise. Services billed in 4 hour increments. Overtime and Premium time will be charged as follows: -Regular time (work begun after 5AM or before 4PM)1 x hourly rate -Night Time (work begun after 4PM or before 5AM)1.125 x hourly rate -Overtime (over 8 hour M‐F or Saturdays)1.5 x hourly rate -Overtime (over 8 hours Sat or 1st 8 hour Sun) 2 x hourly rate -Overtime (over 8 hours Sun or Holidays)3 x hourly rate All work with less than 8 hours rest between shifts will be charged the appropriate overtime rate. Mileage and/or travel cost and travel time will be charged from site for all offsite work. All billable expenses will be charged at cost plus 20%. All rates are subjected to annual escalation of the greater of 6% or the CA CPI each January 1st. Payment due on receipt. All payments over 30 days will be assessed a 1.5% interest charge. 196 FIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND 4LEAF, INC. FOR APPLE CAMPUS 2 PHASE 2 BUILDING INSPECTION SERVICES This First Amendment to the Agreement between the City of Cupertino and 4LEAF, Inc., for reference dated October 20, 2016, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and 4LEAF, Inc., a California Corporation (“Consultant”) whose address is 2110 Rheem Drive, Suite A, Pleasanton, California 94588, and is made with reference to the following: RECITALS: A.On August 5, 2015, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for Apple Campus 2 Phase 2 building inspection services. B.City and Consultant desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1.SERVICES TO BE PERFORMED: Paragraph 2 of the Agreement is modified to read as follows: Consultant shall perform building inspection services, set forth in Exhibit A, which is attached hereto and incorporated herein by this reference. 2.COMPENSATION TO CONSULTANT: Paragraph 3 of the agreement is modified to read as follows: Compensation shall be increased by this amendment in the amount not to exceed $567,531 for Phase 2 Building Inspections for a total contract amount not to exceed $914,787. 2.The following Exhibits to the Agreement, are amended and replaced to read as shown in the attachments to this Amendment: a.Exhibit “A,”- Apple Campus 2 Inspection Services Estimates (August 1, 2016 – June 30, 2017) 3.Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. 197 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CONSULTANT MUNICIPAL CORPORATION 4LEAF, Inc. City of Cupertino By____________________ By: ___________________ Title __________________ Title __________________ Date __________________ RECOMMENDED FOR APPROVAL: By: _________________ Title ________________ APPROVED AS TO FORM: ____________________ City Attorney ATTEST: ____________________ C ity C lerk EXPENDITURE DISTRIBUTION PO # 2016-171 100-73-714 900-923 Original Contract $347,256.00 Amendment #1 $567,531.00 Total $914,787.00 198 Engineering  Construction Management  Inspection  Plan Check 2110 Rheem Drive, Suite A  Pleasanton, CA 94588  Phone (925) 462-5959  Fax (925) 462-5958 Albert Salvador, P.E., CBO September 7, 2016 Chief Building Official 10300 Torre Ave Cupertino, CA 93014 RE: Apple Campus 2 Inspection Services Estimates (August 1, 2016 – June 30, 2017) Dear Mr. Salvador, We wanted to first say thank you for the opportunity to serve the City of Cupertino on the Apple Campus 2 (AC2) Project. We feel our partnership with the City has made for a very success project thus far and we hope to continue providing the same level of exemplary service the City has come to expect. We feel it is best to recap where we are today in hopes of providing an accurate accounting of the current contract and to propose an estimate and fee schedule to complete the project that has gone beyond the initial 31 Month estimate. Recap: In December of 2013, 4LEAF was awarded a Professional Services contract to provide Building and Public Works Inspections on behalf of the City of Cupertino. Based on the information provided by the City through the successful RFP process and subsequent information, the City of Cupertino requested a budget to include 31 Months of inspection and project administration services to cover January, 2014 through July, 2016. The Agreement was executed in February, 2014 and the contract term is valid through December, 2017. Phase 1 In January, 2014, 4LEAF proposed and was granted a contract from the City of Cupertino in the amount of $9,431,390 to cover the 31 month period. 4LEAF was also granted two smaller contracts to cover other items not addressed in the RFP including a $54,000 contract for the Sound Wall, Batch Plant, and Demo Inspections and a contract for Temporary Facilities in the amount of $56,000. 4LEAF also received an increase in budget for an expanded scope of services for the Public Works Department in the amount of $933,712 in May, 2015. Here is the current cost accounting for the entirety of the 31 month budget: Job # Project Contracts Budget Per Contract % Of Budget Complete Total Billed To Date Remaining Budget Status J1848 AC2 Building Inspection $8,310,998 87.29% $7,255,037 $1,055,961 Open J1848 AC2 Public Works Inspection $2,054,104 109% $2,233,125 ($179,021) Open J1860 AC2 Sound Wall, Batch, Demo $54,000 64.12% $34,625 $19,375 Closed J1866 AC2 Temp Facilities $56,000 90% $50,668 $5,332 Closed TOTALS 10,475,102 91.39% $9,573,455 $901,647 Exhibit A 199 Engineering  Construction Management  Inspection  Plan Check 2110 Rheem Drive, Suite A  Pleasanton, CA 94588  Phone (925) 462-5959  Fax (925) 462-5958 4LEAF has provided the City a monthly summary report of all accounts as part of our invoicing procedures. Although we haven’t been formally notified, we understand that the AC2 project is behind its anticipated 31 Month construction schedule. Per the City’s request, 4LEAF has prepared a budget for the anticipated 11 Months to include September 1, 2016 through June 30, 2017. 4LEAF has utilized the current fee schedule and terms and conditions that exist in our Agreement. We have not provided a budget for August as the month is complete and we currently have a budget surplus. Phase 2 In August, 2015, 4LEAF was awarded Phase 2 of the AC2 project. With limited information and scope, 4LEAF proposed and was granted a contract for $347,256. Here is the current cost accounting for the Phase 2 Project: Job # Project Contracts Budget Per Contract % Of Budget Complete Total Billed To Date Remaining Budget J1865 AC2 Phase 2 $347,256 141% $490,016 ($142,760) TOTALS $347,256 141% $490,016 ($142,760) 4LEAF has provided: •Estimate of fees for Phase 2 including breakdown of Full Time Equivalent (FTE) count by staff type per each month of construction. Phase 2 includes Research and Development Buildings and supporting parking structure. •Current Fee Schedule and Basis of Charges, including terms and conditions. Not Included: •Invoice for August, 2016 (Pending) 200 Engineering  Construction Management  Inspection  Plan Check 2110 Rheem Drive, Suite A  Pleasanton, CA 94588  Phone (925) 462-5959  Fax (925) 462-5958 We look forward to the opportunity to continue to serve the City of Cupertino. Should you have any questions, I may be reached on my office phone at (925) 462‐5959 or by cellular phone at (925) 580‐ 4055. You may also reach me at ctole@4leafinc.com. Sincerely, 4LEAF, Inc. Craig Tole Director of Development Services/Principal Project Manager 201 Ci t y o f C u p e r t i n o - A p p l e 2 C a m p u s - I n s p e c t i o n S e r v i c e s Pr e l i m i n a r y M a n p o w e r a n d C o s t E s t i m a t e Ta s k Ju l y . A u g S e p t . O c t . N o v . D e c . J a n F e b M a r . A p r . M a y J u n e On - S i t e B u i l d i n g I n s p e c t i o n s AC 2 P h a s e 2 Ma i n B u i l d i n g , T h e a t r e , F i t n e s s C e n t e r , Ce n t r a l P l a n t , & P a r k i n g S t r u c t u r e Pr o v i d e d o n S e p a r a t e E s t i m a t e On - S i t e a n d O f f - S i t e P W I n s p e c t i o n s Pr o v i d e d o n S e p a r a t e E s t i m a t e LE A D I N S P E C T O R E s t i m a t e d F T E s 0 0 . 2 5 0 . 2 5 0 . 2 5 0 . 2 5 0 . 2 5 0 . 2 5 0. 2 5 0 . 2 5 0. 2 5 0 . 2 5 0 . 2 5 E s t i m a t e d H o u r s 0 4 6 4 2 4 2 4 0 4 2 4 2 38 4 6 40 4 6 4 4 468 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 6 $ 6 $ 6 $ 6 $ 6 $6 $6 $ 7 $ 6 $ 7 $ 7 $67,888 AS S I S T A N T I N S P E C T O R S E s t i m a t e d F T E s 0 1 . 5 1 . 5 1 . 5 1 . 5 1 1 1 0 . 5 0 . 5 0 . 5 0 . 5 E s t i m a t e d H o u r s 0 2 7 6 2 5 2 2 5 2 2 4 0 1 6 8 1 6 8 15 2 9 2 80 9 2 8 8 1,860 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 3 3 $ 3 0 $ 3 0 $ 2 8 $ 2 0 $2 1 $ 1 9 $ 1 2 $ 1 0 $ 1 2 $ 1 1 $224,200 AD M I N I S T R A T O R E s t i m a t e d F T E s 0 0 0 0 0 0 0 00 000 E s t i m a t e d H o u r s 0 0 0 0 0 0 0 00 0000 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 PW R E S I D E N T E N G I N E E R ( S e p a r a t e ) E s t i m a t e d F T E s 0 0 0 0 0 0 0 00 000 E s t i m a t e d H o u r s 0 0 0 0 0 0 0 00 0000 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 PW I N S P E C T O R ( S e p a r a t e ) E s t i m a t e d F T E s 0 0 0 0 0 0 0 00 000 E s t i m a t e d H o u r s 0 0 0 0 0 0 0 00 0000 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 OF F I C E E N G I N E E R E s t i m a t e d F T E s 0 0 . 2 5 0 . 2 5 0 . 2 5 0 . 2 5 0 . 2 5 0 . 2 5 0. 2 5 0 . 2 5 0. 2 5 0 . 2 5 0 . 2 5 E s t i m a t e d H o u r s 0 4 6 4 2 4 2 4 0 4 2 4 2 38 4 6 40 4 6 4 4 468 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 6 $ 6 $ 6 $ 6 $ 6 $6 $ 6 $ 7 $ 6 $ 7 $ 7 $67,888 PR O J E C T M A N A G E M E N T E s t i m a t e d F T E s 0 0 0 0 0 0 0 00 000 E s t i m a t e d H o u r s 0 0 0 0 0 0 0 00 0000 E s t i m a t e d C o s t ( e x p r e s s e d i n T h o u s a n d s o f $ ) $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 $ 0 $ 0 $ 0 $ 0 $ 0 $0 Al l o w a n c e f o r O v e r t i m e ( 1 5 % ) $64,796 Ov e r a g e s f r o m P r e v i o u s C o n t r a c t $142,760 $567,531 No t e s : Ov e r a g e s i n t h e a m o u n t o f $ 1 4 2 , 7 6 0 a r e s h o w n a b o v e t o r e f l e c t t i m e a n d m a t e r i a l s s p e n t a b o v e t h e e s t i m a t e d a m o u n t . No C o n s t r u c t i o n S c h e d u l e s w e r e p r o v i d e d t o 4 L E A F . 20 1 6 20 1 7 OD C s - O t h e r D i r e c t C o s t s . Th i s s c h e d u l e i s t o d e m o n s t r a t e o u r p r o j e c t e d c o s t s f o r s e r v i c e s f o r A C 2 P h a s e 2 . T h i s e s t i m a t e i s f o r t h e t i m e p e r i o d o f A u g u s t , 2 0 1 6 t h r o u g h J u n e , 2 0 1 7 . T h e s e s e r v i c e s a r e b e y o n d th e i n i t i a l e s t i m a t e a n d t i m e p e r i o d p r e v i o u s l y p r o v i d e d t o t h e C i t y . T h i s s c h e d u l e i s i n t e n d e d t o s h o w o u r c u r r e n t u n d e r s t a n d i n g o f t h e p r o j e c t s c o p e . A n y h o u r s o r s t a f f i n g i n a d d i t i o n to t h e q u a n t i t i e s l i s t e d a b o v e w i l l r e q u i r e a d v a n c e d w r i t t e n a u t h o r i z a t i o n f r o m t h e C i t y ’ s C h i e f B u i l d i n g O f f i c i a l p r i o r t o c o m m e n c e m e n t o f a n y a d d i t i o n a l s e r v i c e s . C o n s u l t a n t s h a l l su b m i t , a t t h e C h i e f B u i l d i n g O f f i c i a l ’ s r e q u e s t , a d e t a i l e d w r i t t e n p r o p o s a l i n c l u d i n g a d e s c r i p t i o n o f t h e s c o p e o f a d d i t i o n a l s e r v i c e s , s c h e d u l e , a n d p r o p o s e d m a x i m u m c o m p e n s a t i o n . 4L E A F d o e s n o t c o n t r o l c o n t r a c t o r s m e a n s a n d m e t h o d s a n d w i l l s e r v i c e a l l i n s p e c t i o n r e q u e s t s p e r d i r e c t i o n o f t h e C i t y o f C u p e r t i n o . To t a l E s t i m a t e d C o s t s : Es t i m a t e d c o s t s i n c l u d e 6 % A n n u a l E s c a l a t i o n f o r h o u r l y r a t e s f o r Y e a r s 2 0 1 6 a n d 2 0 1 7 FT E - F u l l - T i m e E q u i v a l e n t . Se e a t t a c h e d F e e S c h e d u l e f o r h o u r l y r a t e s a n d b a s i s o f c h a r g e s . 9/7/2016 20 2 Fee Schedule and Basis of Charges for the Apple Campus 2 Project Page 1 of 1 January 3, 2014 INSPECTION FEE SCHEDULE & BASIS OF CHARGES FOR APPLE CAMPUS 2 Field Services* Lead Inspector $ 125 per hour Assistant Inspector $ 105 per hour Plan Reviewer $ 157 per hour Public Works Resident Engineer $ 224 per hour Public Works Inspector $ 175 per hour Office Engineer $ 125 per hour Project Administrator $ 74 per hour Office Services* Principal (Direct Charge only) $ 250 per hour Project Manager (Direct Charge only) $ 250 per hour Other Direct Charges* CA Code Book Library** (if provided by 4LEAF) $1,200 each Site Vehicles ** $1,000 per month each Personal Computer ** $ 1 per hour surcharge Field Tablet and/or Mobile Assistant ** $ 1 per hour surcharge GoFormz software ** $ 25 per month per user Personal Protective Equipment (PPE)** Cost + 20% Internet Access (MIFI, WIFI, or 3G)** Cost + 20% Office or Administrative furnishings and consumables** Cost + 20% *All Fees Subject to Basis of Charges **If provided by 4LEAF BASIS OF CHARGES All time and materials invoices will be submitted monthly. Work is subject to 4 hour minimum charges unless stated otherwise. Services billed in 4 hour increments. Overtime and Premium time will be charged as follows: -Regular time (work begun after 5AM or before 4PM)1 x hourly rate -Night Time (work begun after 4PM or before 5AM)1.125 x hourly rate -Overtime (over 8 hour M‐F or Saturdays)1.5 x hourly rate -Overtime (over 8 hours Sat or 1st 8 hour Sun) 2 x hourly rate -Overtime (over 8 hours Sun or Holidays)3 x hourly rate All work with less than 8 hours rest between shifts will be charged the appropriate overtime rate. Mileage and/or travel cost and travel time will be charged from site for all offsite work. All billable expenses will be charged at cost plus 20%. All rates are subjected to annual escalation of the greater of 6% or the CA CPI each January 1st. Payment due on receipt. All payments over 30 days will be assessed a 1.5% interest charge. 203 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1877 Name: Status:Type:Second Reading of Ordinances Agenda Ready File created:In control:7/27/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Second Reading of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Ordinance B - Existing Ordinance C - FEMA Letter Action ByDate Action ResultVer. City Council11/1/20161 Subject:SecondReadingofanordinancetorepealandreplaceCupertinoMunicipalCode Chapter 16.52 regarding prevention of flood damage for properties within the City ConductthesecondreadingandenactOrdinanceNo.16-2154:"AnOrdinanceoftheCity CounciloftheCityofCupertinotorepealandreplaceCupertinoMunicipalCodeChapter 16.52 regarding prevention of flood damage for properties within the City" CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™204 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: November 1, 2016 Subject Second Reading of an ordinance to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City. Recommended Action Conduct the second reading and enact Ordinance No. 16-2154: "An Ordinance of the City Council of the City of Cupertino to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City" Discussion On October 18, 2016, City Council conducted the first reading of the Municipal Code amendment to repeal and replace Cupertino Municipal Code Chapter 16.52 regarding prevention of flood damage for properties within the City. No changes have been made to the Ordinance since it was last presented to the Council. Sustainability Impact None Fiscal Impact: No fiscal impact is expected from this proposed ordinance. _____________________________________ Prepared by: Chad Mosley, Senior Engineer Reviewed by: Timm Borden, Director of Public Works Approved for Submission by: David Brandt, City Manager Attachments: A- Draft Ordinance B- Existing Ordinance Proposed for Rescinding C- FEMA Community Assistance Visit letter 205 1 ORDINANCE NO. 16- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO RESCINDING AND REENACTING CUPERTINO MUNICIPAL CODE CHAPTER 16.52 REGARDING PREVENTION OF FLOOD DAMAGE FOR PROPERTIES WITHIN THE CITY WHEREAS, this Ordinance is determined to be not a project under the requirements of the California Quality Act of 1970, together with related State CEQA Guidelines (collectively, “CEQA”) in that proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. WHEREAS, the City Council is the decision-making body for this Ordinance; and WHEREAS, the City Council before taking action on this Ordinance has reviewed the not a project determination and exemption, and using its independent judgment, determines the Ordinance to be not a project or exempt from CEQA as stated above; NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: SECTION 1: Chapter 16.52 of Title 16 of the Cupertino Municipal Code is hereby amended in its entirety to be entitled and to read as follows: CHAPTER 16.52 PREVENTION OF FLOOD DAMAGE 16.52.001 Statutory Authorization. The Legislature of the State of California has in Government Code Sections 65302, 65560, and 65800 conferred upon local governments the authority to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. Therefore, the City of Cupertino does hereby adopt the following floodplain management regulations. 16.52.010 Definitions Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the meaning they have in common usage and to give this 206 2 ordinance its most reasonable application. A. "A zone" - see "Special flood hazard area". B. “Accessory structure” means a structure that is either: 1. Solely for the parking of no more than 2 cars; or 2. A small, low cost shed for limited storage, less than 150 square feet and $1,500 in value. C. "Accessory use" means a use which is incidental and subordinate to the principal use of the parcel of land on which it is located. D. "Alluvial fan" means a geomorphologic feature characterized by a cone or fan-shaped deposit of boulders, gravel, and fine sediments that have been eroded from mountain slopes, transported by flood flows, and then deposited on the valley floors, and which is subject to flash flooding, high velocity flows, debris flows, erosion, sediment movement and deposition, and channel migration. E. "Apex" means a point on an alluvial fan or similar landform below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur. F. "Appeal" means a request for a review of the Floodplain Administrator's interpretation of any provision of this ordinance. G. "Area of shallow flooding" means a designated AO or AH Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. H. "Area of special flood hazard" - See "Special flood hazard area." I. "Base flood" means a flood which has a one percent chance of being equaled or exceeded in any given year (also called the "100-year flood"). Base flood is the term used throughout this ordinance. J. “Base flood elevation” (BFE) means the elevation shown on the Flood Insurance Rate Map for Zones AE, AH, A1-30, VE and V1-V30 that indicates the water surface elevation resulting from a flood that has a 1-percent or greater chance of being equaled or exceeded in any given year. 207 3 K. "Basement" means any area of the building having its floor subgrade - i.e., below ground level - on all sides. L. "Building" - see "Structure". M. “City” shall refer to the City of Cupertino, a municipal corporation in the State of California, County of Santa Clara. N. "Development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. O. "Encroachment" means the advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain which may impede or alter the flow capacity of a floodplain. P. "Existing manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before May 1, 1980. Q. "Expansion to an existing manufactured home park or subdivision" means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). R. "Flood, flooding, or flood water" means: 1. A general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland or tidal waters; the unusual and rapid accumulation or runoff of surface waters from any source; and/or mudslides (i.e., mudflows); and 2. The condition resulting from flood-related erosion. S. "Flood Boundary and Floodway Map (FBFM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated 208 4 both the areas of special flood hazards and the floodway. T. "Flood Insurance Rate Map (FIRM)" means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. U. "Flood Insurance Study" means the official report provided by the Federal Emergency Management Administration that includes flood profiles, the Flood Insurance Rate Map, the Flood Boundary and Floodway Map, and the water surface elevation of the base flood. V. "Floodplain or flood-prone area" means any land area susceptible to being inundated by water from any source - see "Flooding." W. "Floodplain Administrator" is the City Engineer, or other community official designated by title to administer and enforce the floodplain management regulations. X. "Floodplain management" means the operation of an overall program of corrective and preventive measures for reducing flood damage and preserving and enhancing, where possible, natural resources in the floodplain, including but not limited to emergency preparedness plans, flood control works, floodplain management regulations, and applicable general master plans. Y. "Floodplain management regulations" means this ordinance and other zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as grading and erosion control) and other application of police power which control development in flood-prone areas. This term describes federal, state or local regulations in any combination thereof which provide standards for preventing and reducing flood loss and damage. Z. "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents. For guidelines on dry and wet floodproofing, see FEMA Technical Bulletins TB 1-93, TB 3-93, and TB 7-93. AA. "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Also referred to as "Regulatory Floodway." 209 5 BB. "Floodway fringe" is that area of the floodplain on either side of the "Regulatory Floodway" where encroachment may be permitted. CC. "Governing body" is the Planning Commission, which is empowered to adopt and implement regulations to provide for the public health, safety and general welfare of its citizenry. In the event that the Planning Commission defers a decision to the City Council, or a Planning Commission decision is appealed, the Governing Body will be the City Council. DD. "Hardship" as related to Sections 16.52.060 through 16.52.062 of this ordinance means the exceptional hardship that would result from a failure to grant the requested variance. The City of Cupertino requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended. EE. "Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. FF. "Historic structure" means any structure that is: 1. Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; 2. Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; 3. Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or 4. Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs. 5. Individually listed on a local inventory of historic places in the approved General Plan, 210 6 publicly adopted by the City Council. GG. "Levee" means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water so as to provide protection from temporary flooding. HH. "Levee system" means a flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accord with sound engineering practices. II. "Lowest floor" means the lowest floor of the lowest enclosed area, including basement (see “Basement” definition). 1. An unfinished or flood resistant enclosure below the lowest floor that is usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building’s lowest floor provided it conforms to applicable non- elevation design requirements, including, but not limited to: a. The flood openings standard in Section 16.52.043.C; b. The anchoring standards in Section 16.52.041; c. The construction materials and methods standards in Section 16.52.042; and d. The standards for utilities in Section 16.52.044. 2. For residential structures, all subgrade enclosed areas are prohibited as they are considered to be basements (see “Basement” definition). This prohibition includes below-grade garages and storage areas. JJ. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home" does not include a "recreational vehicle". KK. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. LL. “Market value” is defined in the City of Cupertino substantial damage/improvement procedures. See Section 16.52.021.B. 211 7 MM. "Mean sea level" means, for purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) of 1988, or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced. NN. "New construction", for floodplain management purposes, means structures for which the "start of construction" commenced on or after May 1, 1980, and includes any subsequent improvements to such structures. OO. "New manufactured home park or subdivision" means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after May 1, 1980. PP. "Obstruction" includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile, abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, vegetation or other material in, along, across or projecting into any watercourse which may alter, impede, retard or change the direction and/or velocity of the flow of water, or due to its location, its propensity to snare or collect debris carried by the flow of water, or its likelihood of being carried downstream. QQ. "One-hundred-year flood" or "100-year flood" - see "Base flood." RR. “Program deficiency” means a defect in a community’s floodplain management regulations or administrative procedures that impairs effective implementation of those floodplain management regulations. SS. "Public safety and nuisance" as related to Section 16.52.060 through 16.52.062 of this ordinance, means that the granting of a variance must not result in anything which is injurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin. TT. "Recreational vehicle" means a vehicle which is: 1. Built on a single chassis; 2. 400 square feet or less when measured at the largest horizontal projection; 212 8 3. Designed to be self-propelled or permanently towable by a light-duty truck; and 4. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. Recreational Vehicles shall not be on any site for more than 180 consecutive days UU. "Regulatory floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. VV. “Remedy a violation” means to bring the structure or other development into compliance with State or local floodplain management regulations, or if this is not possible, to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of the ordinance or otherwise deterring future similar violations, or reducing State or Federal financial exposure with regard to the structure or other development. WW. "Riverine" means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. XX. "Sheet flow area" - see "Area of shallow flooding." YY. "Special flood hazard area (SFHA)" means an area in the floodplain subject to a 1 percent or greater chance of flooding in any given year. It is shown on an FHBM or FIRM as Zone A, AO, A1-A30, AE, A99, or, AH. ZZ. "Start of construction" includes substantial improvement and other proposed new development and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within 180 days from the date of the permit. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufacture home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, 213 9 whether or not that alteration affects the external dimensions of the building. AAA. "Structure" means a walled and roofed building that is principally above ground; this includes a gas or liquid storage tank or a manufactured home. BBB. “Substantial damage” means: 1. Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred; or 2. Flood-related damages sustained by a structure on two separate occasions during a 10-year period for which the cost of repairs at the time of each such event, on the average, equals or exceeds 25 percent of the market value of the structure before the damage occurred. This is also known as “repetitive loss.” CCC. "Substantial improvement" means any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either: 1. Any project for improvement of a structure to correct existing violations or state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or 2. Any alteration of a "historic structure," provided that the alteration will not preclude the structure's continued designation as a "historic structure." DDD. "Variance" means a grant of relief from the requirements of this ordinance which permits construction in a manner that would otherwise be prohibited by this ordinance. EEE. “Violation” means the failure of a structure or other development to be fully compliant with this ordinance. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this ordinance is presumed to be in violation until such time as that documentation is provided. FFF. "Watercourse" means a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes 214 10 specifically designated areas in which substantial flood damage may occur. 16.52.011 Lands to Which this Ordinance Applies. This ordinance shall apply to all areas of special flood hazards within the jurisdiction of the City of Cupertino. The Special Flood Hazard Area identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the City of Cupertino,” dated November, 1979, and as amended from time to time, with accompanying Flood Insurance Rate Maps as amended from time to time, is adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on file in the Department of Public Works. 16.52.012 Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in the “Flood Insurance Study (FIS) for the City of Cupertino” dated November, 1979, with accompanying Flood Insurance Rate Maps (FIRM’s) and Flood Boundary and Floodway Maps (FBFM’s), dated May 1, 1980, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be a part of this ordinance. This FIS and attendant mapping is the minimum area of applicability of this ordinance and may be supplemented by studies for other areas which allow implementation of this ordinance and which are recommended to the City Council by the Floodplain Administrator. The study, FIRM’s and FBFM’s are on file at the Department of Public Works. 16.52.013 Compliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this ordinance and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards) shall constitute a misdemeanor. Nothing herein shall prevent the City of Cupertino from taking such lawful action as is necessary to prevent or remedy any violation. 16.52.014 Abrogation and Greater Restrictions. This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 215 11 16.52.015 Interpretation. In the interpretation and application of this ordinance, all provisions shall be: A. Considered as minimum requirements; B. Strictly construed in favor of the governing body; and C. Deemed neither to limit nor repeal any other powers granted under state statutes. 16.52.016 Warning and Disclaimer of Liability. The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City, any officer or employee thereof, the State of California, or the Federal Emergency Management Agency, for any flood damages that may result from reliance on this ordinance or any administrative decision lawfully made hereunder. 16.52.020 Designation of the Floodplain Administrator. The City Engineer is hereby designate the Floodplain Administrator for the City, and is appointed to administer and implement this ordinance by granting or denying development permits in accord with its provisions. 16.52.021 Duties and Responsibilities of the Floodplain Administrator. The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to the following: A. Permit Review. Review all development permits to determine: 1. Permit requirements of this ordinance have been satisfied, including ensuring that the Building Official has made a determination of substantial improvement and substantial damage of existing structures; 2. All other required state and federal permits have been obtained; 216 12 3. The site is reasonably safe from flooding; 4. The proposed development does not adversely affect the carrying capacity of areas where base flood elevations have been determined but a floodway has not been designated. This means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will not increase the water surface elevation of the base flood more than 1 foot at any point within the County; and 5. All Letters of Map Revision (LOMR’s) for flood control projects are approved prior to the issuance of building permits. Building Permits must not be issued based on Conditional Letters of Map Revision (CLOMR’s). Approved CLOMR’s allow construction of the proposed flood control project and land preparation as specified in the “start of construction” definition. B. Substantial Improvement and Substantial Damage Procedures. Determination of Substantial Improvements and Substantial Damages shall follow the City’s policy titled “Alterations and Additions Located in Special Flood Hazard Areas”, dated June 1, 2016, and any subsequent revisions approved and implemented by the Building Official. C. Review, Use and Development of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 16.52.012 (Basis for Establishing the Areas of Special Flood Hazard), the Floodplain Administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal or state agency, or other source, in order to administer Sections 16.52.040 through 16.52.055. NOTE: A base flood elevation shall be obtained using one of two methods from the FEMA publication, FEMA 265, “Managing Floodplain Development in Approximate Zone A Areas – A Guide for Obtaining and Developing Base (100-year) Flood Elevations” dated July 1995. D. Notification of Other Agencies. 1. Alteration or relocation of a watercourse. The Floodplain Administrator shall: a. Notify adjacent communities, Santa Clara Valley Water District, and the California Department of Water Resources prior to alteration or relocation; 217 13 b. Submit evidence of such notification to the Federal Emergency Management Agency; and c. Assure that the flood carrying capacity within the altered or relocated portion of said watercourse is maintained. 2. Base Flood Elevation changes due to physical alterations: a. Within 6 months of information becoming available or project completion, whichever comes first, the floodplain administrator shall submit or assure that the permit applicant submits technical or scientific data to FEMA for a Letter of Map Revision (LOMR). b. All LOMR’s for flood control projects are approved prior to the issuance of building permits. Building Permits must not be issued based on Conditional Letters of Map Revision (CLOMR’s). Approved CLOMR’s allow construction of the proposed flood control project and land preparation as specified in the “start of construction” definition. Such submissions are necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements are based on current data. 3. Changes in corporate boundaries: Notify FEMA in writing whenever the corporate boundaries have been modified by annexation or other means and include a copy of a map of the community clearly delineating the new corporate limits. E. Documentation of Floodplain Development. The Floodplain Administrator shall obtain and maintain for public inspection and make available as needed the following: 1. Certification required by Section 16.52.043.A and Section 16.52.53 (lowest floor elevations); 2. Certification required by Section 16.52.043.B (elevation or floodproofing of nonresidential structures); 218 14 3. Certification required by Section 16.52.043.C(flood openings); 4. Certification of elevation required by Section 16.52.045.A.3 (subdivisions and other proposed development standards); 5. Certification required by Section 16.52.055.B (floodway encroachments); and 6. Maintain a record of all variance actions, including justification for their issuance. F. Map Determination. The Floodplain Administrator shall make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Section 16.52.030, 16.52.060 through 16.52.062. G. Remedial Action. The Floodplain Administrator shall take action to remedy violations of this ordinance as specified in 16.52.013. H. Planning. The Floodplain Administrator shall assure the community’s General Plan is consistent with floodplain management objectives herein. I. Non-conversion of Enclosed Areas Below the Lowest Floor. To ensure that the areas below the BFE shall be used solely for parking vehicles, limited storage, or access to the building and not be finished for use as habitable space without first becoming fully compliant with the floodplain management ordinance in effect at the time of conversion, the Floodplain Administrator shall: 1. Ensure the Building Official has determined which applicants for new construction and/or substantial improvements have fully enclosed areas below the lowest floor that are 5 feet or higher; 2. Ensure the applicant enters into a “NON-CONVERSION AGREEMENT FOR CONSTRUCTION WITHIN FLOOD HAZARD AREAS” or equivalent with the 219 15 City of Cupertino. The agreement shall be recorded with the Office of the Recorder at the County of Santa Clara as a deed restriction. The non-conversion agreement shall be in a form acceptable to the Floodplain Administrator and City Attorney; and 3. Verify that the “NON-CONVERSON AGREEMENT” provides the authority to inspect any area of a structure below the base flood elevation to ensure compliance upon prior notice of at least 72 hours. 16.52.022 Development Permit. A development permit shall be obtained before any construction or other development, including placement of prefabricated buildings and manufactured homes, within any area of special flood hazard established in 16.52.012. Application for a development permit shall be made on forms furnished by the City of Cupertino. The applicant shall provide the following minimum information: A. Plans, drawn to scale, showing: A. Location, dimensions, and elevation of the area in question, existing or proposed structures, storage of materials and equipment and their location; B. Proposed locations of water supply, sanitary sewer, storm drainage and other utilities; C. Grading information showing existing and proposed contours, any proposed fill, and drainage facilities; D. Location of the regulatory floodway when applicable; E. Base flood elevation information as specified in Section 16.52.012; F. Proposed elevation in relation to mean sea level, of the lowest floor (including basement) of all structures; and G. Proposed elevation in relation to mean sea level to which any nonresidential structure will be floodproofed, as required in Section 16.52.043.B of this ordinance and detailed in FEMA Technical Bulletin TB 3-93. A. Certification from a registered civil engineer or architect that any nonresidential floodproofed buildings meet the floodproofing criteria in Section 16.52.043.B. B. For a crawl-space foundation, the location and total net area of foundation openings as required in Section 16.52.043.C of this ordinance and detailed in FEMA Technical Bulletins 1-93 and 7-93. 220 16 C. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. D. All appropriate certifications listed in Section 16.52.021.E of this ordinance. 16.52.030 Appeals. The Planning Commission of The City of Cupertino shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this ordinance. A. Any person aggrieved by the decision of the Planning Commission may appeal such decision to the City Council, in accordance with Section 8 of Procedural Ordinance No. 652. 16.52.040 Standards of Construction. All Special Flood Hazard Areas are governed by the general standards set forth in Sections 16.52.040 through 16.52.044. 16.52.041 Anchoring. All new construction and substantial improvements of structures, including manufactured homes, shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. 16.52.042 Construction Materials and Methods. All new construction and substantial improvements of structures, including manufactured homes, shall be constructed: A. With flood resistant materials, and utility equipment resistant to flood damage for areas below the base flood elevation; B. Using methods and practices that minimize flood damage; C. With electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; and 221 17 D. Within Zones AH or AO, so that there are adequate drainage paths around structures on slopes to guide flood waters around and away from proposed structures. 16.52.043 Elevation and Floodproofing. A. Residential construction. All new construction or substantial improvements of residential structures shall have the lowest floor, including basement: 1. In AE, AH, A1-30 Zones, elevated to one foot or more above the base flood elevation. 2. In an AO zone, elevated above the highest adjacent grade to a height one foot or more above the depth number specified in feet on the FIRM, or elevated at least 3 feet above the highest adjacent grade if no depth number is specified. 3. In an A zone, without BFE’s specified on the FIRM [unnumbered A zone], elevated to one foot or more above the base flood elevation; as determined under Section 16.5.021.C. Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator. B. Nonresidential construction. All new construction or substantial improvements of nonresidential structures shall either be elevated to conform with Section 16.52.043.A or: 1. Be floodproofed, together with attendant utility and sanitary facilities, below the elevation recommended under Section 16.52.043.A, so that the structure is watertight with walls substantially impermeable to the passage of water; 2. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and 222 18 3. Be certified by a registered civil engineer or architect that the standards of Section 16.52.043.B.1 & 2 are satisfied. Such certification shall be provided to the Floodplain Administrator. C. Flood openings. All new construction and substantial improvements of structures with fully enclosed areas below the lowest floor (excluding basements) that are usable solely for parking of vehicles, building access or storage, and which are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must meet the following minimum criteria: 1. For non-engineered openings: a. Have a minimum of two openings on different sides having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; b. The bottom of all openings shall be no higher than one foot above grade; c. Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwater; and d. Buildings with more than one enclosed area must have openings on exterior walls for each area to allow flood water to directly enter; or 2. Be certified by a registered civil engineer or architect. D. Manufactured homes. a. See Section 16.52.053. E. Garages and low cost accessory structures. 1. Attached garages. a. A garage attached to a residential structure, constructed with the garage floor slab below the BFE, must be designed to allow for the automatic entry of flood waters. See Section 16.52.043.C. Areas of the garage below the BFE must be 223 19 constructed with flood resistant materials. See Section 16.52.042. b. A garage attached to a nonresidential structure must meet the above requirements or be dry floodproofed. For guidance on below grade parking areas, see FEMA Technical Bulletin TB-6. 2. Detached garages and accessory structures. a. “Accessory structures” used solely for parking (2 car detached garages or smaller) or limited storage (small, low-cost sheds), as defined in Section 16.52.010, may be constructed such that its floor is below the base flood elevation (BFE), provided the structure is designed and constructed in accordance with the following requirements: 1) Use of the accessory structure must be limited to parking or limited storage; 2) The portions of the accessory structure located below the BFE must be built using flood-resistant materials; 3) The accessory structure must be adequately anchored to prevent flotation, collapse and lateral movement; 4) Any mechanical and utility equipment in the accessory structure must be elevated or floodproofed to one foot or more above the BFE; 5) The accessory structure must comply with floodplain encroachment provisions in Section 16.52.055; and 6) The accessory structure must be designed to allow for the automatic entry of flood waters in accordance with Section 16.52.043.C. 2. Detached garages and accessory structures not meeting the above standards must be constructed in accordance with all applicable standards in Sections 16.52.040 through 16.52.043. 16.52.044 Standards for Utilities. A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate: 224 20 1. Infiltration of flood waters into the systems; and 2. Discharge from the systems into flood waters. B. On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding. C. Crawlspace Construction. This sub-section applies to buildings with crawl spaces up to 2 feet below grade. Below-grade crawl space construction in accordance with the requirements listed below will not be considered basements. 1. The building must be designed and adequately anchored to resist flotation, collapse, and lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Crawl space construction is not allowed in areas with flood velocities greater than 5 feet per second unless the design is reviewed by a qualified design professional, such as a registered architect or professional engineer; 2. The crawl space is an enclosed area below the BFE and, as such, must have openings that equalize hydrostatic pressures by allowing for the automatic entry and exit of floodwaters. For guidance on flood openings, see FEMA Technical Bulletin 1-93; 3. Portions of the building below the BFE must be constructed with materials resistant to flood damage. This includes not only the foundation walls of the crawl space used to elevate the building, but also any joists, insulation, or other materials that extend below the BFE; and 4. Any building utility systems within the crawl space must be elevated to one foot or more above BFE or designed so that floodwaters cannot enter or accumulate within the system components during flood conditions. 5. Requirements for all below-grade crawl space construction, in addition to the above requirements, shall include the following: a. The interior grade of a crawl space below the BFE must not be more than 2 feet below the lowest adjacent exterior grade (LAG), shown as D in figure 3 of FEMA Technical Bulletin 11-01; 225 21 b. The height of the below-grade crawl space, measured from the interior grade of the crawl space to the top of the crawl space foundation wall must not exceed 4 feet (shown as L in figure 3 of FEMA Technical Bulletin 11-01) at any point; c. There must be an adequate drainage system that removes floodwaters from the interior area of the crawl space within a reasonable period of time after a flood event, not to exceed 72 hours; and d. The velocity of floodwaters at the site should not exceed 5 feet per second for any crawl space. For velocities in excess of 5 feet per second, other foundation types should be used, or the foundation must be designed and reviewed by a qualified design professional. 16.52.045 Standards for Subdivisions and other Proposed Development. A. All new subdivisions proposals and other proposed development, including proposals for manufactured home parks and subdivisions, greater than 50 lots or 5 acres, whichever is the lesser, shall: 1. Identify the Special Flood Hazard Areas (SFHA) and Base Flood Elevations (BFE). 2. Identify the elevations of lowest floors of all proposed structures and pads on the final plans. 3. If the site is filled above the base flood elevation, the following as-built information for each structure shall be certified by a registered civil engineer or licensed land surveyor and provided as part of an application for a Letter of Map Revision based on Fill (LOMR-F) to the Floodplain Administrator: a. Lowest floor elevation. b. Pad elevation. c. Lowest adjacent grade. B. All subdivision proposals and other proposed development shall be consistent with the need to minimize flood damage. 226 22 C. All subdivision proposals and other proposed development shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. D. All subdivisions and other proposed development shall provide adequate drainage to reduce exposure to flood hazards. 16.52.053 Standards for Manufactured Homes. A. All manufactured homes that are placed or substantially improved, on sites located: (1) outside of a manufactured home park or subdivision; (2) in a new manufactured home park or subdivision; (3) in an expansion to an existing manufactured home park or subdivision; or (4) in an existing manufactured home park or subdivision upon which a manufactured home has incurred "substantial damage" as the result of a flood, shall: 1. Within Zones A1-30, AH, and AE on the community's Flood Insurance Rate Map, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to one foot or more above the base flood elevation and be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. B. All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within Zones A1-30, AH, and AE on the community's Flood Insurance Rate Map that are not subject to the provisions of Section 16.52.053.A will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and be elevated so that either the: 1. Lowest floor of the manufactured home is at one foot or more above the base flood elevation; or 2. Manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade. Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered civil engineer or licensed land surveyor, and verified by the community building inspector to be properly elevated. Such certification and verification shall be provided to the Floodplain Administrator. 227 23 16.52.054 Standards for Recreational Vehicles. A. All recreational vehicles placed in Zones A1-30, AH, and AE will either: 1. Be on the site for fewer than 180 consecutive days; or 2. Be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions; or 3. Meet the permit requirements of Section 16.52.022 of this ordinance and the elevation and anchoring requirements for manufactured homes in Section 16.52.053.A. 16.52.055 Floodways. Since floodways are an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles, and erosion potential, the following provisions apply: A. Until a regulatory floodway is adopted, no new construction, substantial development, or other development (including fill) shall be permitted within Zones A1-30 and AE, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other development, will not increase the water surface elevation of the base flood more than 1 foot at any point within the County of Santa Clara. B. Within an adopted regulatory floodway, the City shall prohibit encroachments, including fill, new construction, substantial improvements, and other development, unless certification by a registered civil engineer is provided demonstrating that the proposed encroachment shall not result in any increase in flood levels during the occurrence of the base flood discharge. C. If Sections 16.52.055.A & B are satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of Sections 16.52.040 through 16.52.055. 16.52.061 Conditions for Variances. A. Generally, variances may be issued for new construction, substantial improvement, 228 24 and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing that the procedures of Sections 16.52.020 through 16.52.055of this ordinance have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. B. Variances may be issued for the repair or rehabilitation of "historic structures" (as defined in Section 16.52.010 of this ordinance) upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. C. Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result. D. Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this ordinance. For example, in the case of variances to an elevation requirement, this means the Planning Commission or City Council need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the Planning Commission or City Council believes will both provide relief and preserve the integrity of the local ordinance. E. Any applicant to whom a variance is granted shall be given written notice over the signature of a community official that: 1. The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage, and 2. Such construction below the base flood level increases risks to life and property. It is recommended that a copy of the notice shall be recorded by the Floodplain Administrator in the Office of the Recorder of the County of Santa Clara, and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land. F. The Floodplain Administrator will maintain a record of all variance actions, including justification for their issuance, and provide information on such variances 229 25 issued to the Federal Emergency Management Agency. 16.52.062 Appeal Board. A. In passing upon requests for variances, the Floodplain Administrator shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and the: 1. Danger that materials may be swept onto other lands to the injury of others; 2. Danger of life and property due to flooding or erosion damage; 3. Susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property; 4. Importance of the services provided by the proposed facility to the community; 5. Necessity to the facility of a waterfront location, where applicable; 6. Availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; 7. Compatibility of the proposed use with existing and anticipated development; 8. Relationship of the proposed use to the comprehensive plan and floodplain management program for that area; 9. Safety of access to the property in time of flood for ordinary and emergency vehicles; 10. Expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and 11. Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges. B. Variances shall only be issued upon a: 1. Showing of good and sufficient cause; 230 26 2. Determination that failure to grant the variance would result in exceptional "hardship" to the applicant; and 3. Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (see "Public safety and nuisance"), cause “fraud and victimization” of the public, or conflict with existing local laws or ordinances. C. Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use provided that the provisions of Sections 16.52.062.A through 16.52.062.D are satisfied and that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance. D. Upon consideration of the factors of Section 16.52.061.A and the purposes of this ordinance, the Planning Commission or City Council may attach such conditions to the granting of variances as it deems necessary to further the purposes of this ordinance. SECTION 2: Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. 231 27 SECTION 3: Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. SECTION 4: Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. SECTION 5: Continuity. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as amendments of the earlier provisions. INTRODUCED at a regular meeting of the Cupertino City Council the 18th day of October, 2016 and ENACTED at a regular meeting of the Cupertino City Council on this _____of _______________ 2016 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: _________________________ ___________________________________ Grace Schmidt, City Clerk Barry Chang, Mayor, City of Cupertino 232 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] Cupertino, CA Municipal Code CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE Section 16.52.010 Definitions. 16.52.011 Lands to which this chapter applies. 16.52.012 Compliance. 16.52.013 Interpretation. 16.52.014 Warning and disclaimer of liability. 16.52.020 Establishment of development permit. 16.52.021 Designation of Director of Public Works. 16.52.030 Appeal Board. 16.52.035 Conditions for variance issuance. 16.52.040 General standards. 16.52.041 Anchoring. 16.52.042 Construction materials and methods. 16.52.043 Utilities. 16.52.044 Subdivision proposals. 16.52.050 Specific standards (unnumbered A zones and Zones A1-30). 16.52.051 Residential construction. 16.52.052 Nonresidential construction. 16.52.053 Manufactured homes. 16.52.054 Specific standards (zone AO). 16.52.055 Floodways. 16.52.060 Penalty. 16.52.010 Definitions. Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application. A. “Appeal” means a request for a review of the Floodplain Administrator’s interpretation of any provisions of this chapter or a request for a variance. B. “Area of shallow flooding” means a designated AO zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate and velocity flow may be evident. 233 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] C. “Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year (also called the “one-hundred-year flood”). D. “Basement” means any area of the building having its floor subgrade (below ground level) on all sides. E. “Breakaway walls” means any type of walls, whether solid or lattice, and whether constructed of concrete, masonry, wood, metal, plastic or any other suitable building material, which are not part of the structural support of the building and which are designed to break away under abnormally high tides or wave action without causing any damage to the structural integrity of the building on which they are used or any buildings to which they might be carried by floodwaters. A breakaway wall shall have a safe design loading resistance of not less than ten and no more than twenty pounds per square foot. Use of breakaway walls must be certified by a registered engineer or architect and shall meet the following conditions: 1. Breakaway wall collapse shall result from a water load less than that which would occur during the base flood; and 2. The elevated portion of the building shall not incur any structural damage due to the effects of wind and water loads acting simultaneously in the event of the base flood. F. “Development” means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. G. “Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from: 1. The overflow of floodwaters; 2. The unusual and rapid accumulation or runoff of surface waters from any source; 3. The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents or water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as provided in this definition. H. “Flood Boundary and Floodway Map” means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of flood hazard and the floodway. I. “Flood Insurance Rate Map (FIRM)” means the official map on which the Federal Emergency Management Agency or Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. J. “Flood Insurance Study” means the official report provided by the Federal Insurance Administration that includes flood profiles, the Flood Boundary-Floodway Map, and the water surface elevation of the base flood. K. “Floodplain” or “flood-prone area” means any land area susceptible to being inundated by water from any source (see definition of “flooding”). L. “Floodplain management” means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations. M. “Floodplain management regulations” means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. N. “Floodproofing” means any combination of structural and nonstructural additions, changes or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary 234 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] facilities, structures and their contents. O. “Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. P. “Highest adjacent grade” means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. Q. “Lowest floor” means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this chapter. R. “Manufactured home” means a structure that is transportable in one or more sections, built on a permanent chassis, and designed to be used with or without a permanent foundation when connected to the required utilities. For floodplain management purposes, the term “manufactured home” also includes park trailers, travel trailers and other similar vehicles placed on a site for more than one hundred eighty consecutive days. S. “Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for sale or rent. T. “Mean sea level” means, for the purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, or other datum, to which base flood elevations shown on a community’s Flood Insurance Rate Map are referenced. U. “New construction” means structures for which the start of construction commenced on or after the effective date of this chapter. V. “One-hundred-year flood” or “100-year flood” means a flood which has a one-percent annual probability of being equaled or exceeded. It is identical to the “base flood,” which will be the term used throughout this chapter. W. “Person” means an individual or his agent, firm, partnership, association or corporation, or agent of the aforementioned groups, or this state or its agencies or political subdivisions. X. “Remedy a violation” means to bring the structure or other development into compliance with state or local floodplain management regulations, or to reduce the impacts of its noncompliance. Ways that impacts may be reduced include protecting the structure or other affected development from flood damages, implementing the enforcement provisions of this chapter or otherwise deterring future similar violations, or reducing federal financial exposure with regard to the structure or other development. Y. “Riverine” means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. Z. “Special Flood Hazard Area (SFHA)” means an area having special flood or flood-related erosion hazards, and shown on a FHBM or FIRM as zone A, AO or A1-30. AA. “Start of construction” includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within one hundred eighty days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slabs or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation, or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling, nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not as part of the main structure. BB. “Structure” means a walled and roofed building (including a gas or liquid storage tank) that is principally above ground, as well as a manufactured home. 235 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] CC. “Substantial improvement” means any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure either: 1. Before the improvement or repair is started; or 2. If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition “substantial improvement” is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: 1. Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or 2. Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places. DD. “Variance” means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter. EE. “Violation” means the failure of a structure or other development to comply fully with the community’s floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this chapter is presumed to be in violation until such time as that documentation is provided. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.011 Lands to Which this Chapter Applies. This chapter shall apply to all areas of special flood hazard within the city. The Special Flood Hazard Area identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the City of Cupertino,” dated November, 1979, with accompanying Flood Insurance Rate Maps as amended from time to time, is adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on file in the Department of Public Works. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.012 Compliance. No structure or land shall hereafter be constructed, located, extended, converted or altered without full compliance with the terms of this chapter and other applicable regulations. Nothing herein shall prevent the City of Cupertino from taking such lawful action as is necessary to prevent or remedy any violation. This chapter is not intended to repeal, abrogate or impair any existing easements, convenants or deed restrictions. However, where this chapter and a statute, ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.013 Interpretation. In the interpretation and application of this chapter, all provisions shall be: A. Considered as minimum requirements; 236 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] B. Strictly construed; and C. Deemed neither to limit nor repeal any other powers granted under state statutes. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.014 Warning and Disclaimer of Liability. The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of the city, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that may result from reliance on this chapter or any administrative decision lawfully made thereunder. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.020 Establishment of Development Permit. A development permit shall be obtained before new construction, substantial improvements or development (including the placement of prefabricated buildings and manufactured homes) begins within any area of special flood hazard established in Section 16.52.011. Application for a development permit shall be made on forms furnished by the Director of Public Works, and may include, but not be limited to: plans in duplicate drawn to scale showing the nature, location, dimensions and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities; and the location of the foregoing. Specifically, the following information is required: A. Proposed elevation, in relation to mean sea level, of the lowest floor (including basement) of all structures; in zone AO, elevation of highest adjacent grade and proposed elevation of lowest floor of all structures; B. Proposed elevation in relation to mean sea level to which any structure has been floodproofed; C. All appropriate certificates listed in Section 16.52.021 C1 of this chapter; D. Description of the extent to which any watercourse will be altered or relocated as a result of proposed development. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.021 Designation of Director of Public Works. The Director of Public Works is appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions. The duties and responsibilities of the Director of Public Works shall include, but not be limited to: A. Permit Review. The Director shall: 1. Review all development permits to determine that the permit requirements of this chapter have been satisfied, and that building sites are reasonably safe from flooding; 2. Review all development permits to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required; 237 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] 3. Review all development permits to determine whether the proposed development adversely affects the flood-carrying capacity of the floodway, or area where the base flood elevation has been determined but the floodway has not been designated. For purposes of this chapter, “adversely affects” means that the cumulative effect of the proposed development when combined with all other existing and anticipated development will increase the water surface elevation of the base flood more than one foot at any point. B. Use of Other Base Flood Data. When base flood elevation data has not been provided in accordance with Section 16.52.011 (Lands to which this chapter applies), the Director of Public Works shall obtain, review and reasonably utilize any base flood elevation data available from a federal, state or other source, in order to administer Sections 16.52.051 (Residential construction) and 16.52.052 (Nonresidential construction). C. Information to be Obtained and Maintained. The Director shall: 1. Maintain for public inspection and make available the following certification: a. Floor elevation, as required in Sections 16.52.051 and 16.52.052, b. Elevations in area of shallow flooding in Sections 16.52.042 and 16.52.054, c. Elevations/floodproofing of nonresidential structures in Section 16.52.052, d. Wet floodproofing standard in Section 16.52.042E, e. Subdivision standards in Section 16.52.044, f. Floodway encroachments in Section 16.52.055; 2. Maintain for public inspection all records pertaining to the provisions of this chapter. D. Alteration of Watercourses. The Director shall: 1. Notify adjacent communities, Santa Clara Valley Water District, and the Department of Water Resources of the State of California prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration; 2. Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished. E. Interpretation of FIRM Boundaries. The Director shall make interpretations, where needed, as to the exact location of the boundaries of the special flood hazard area (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Sections 16.52.030 through 16.52.035. F. Enforcement. The Director shall take action to remedy violations of this chapter as provided in Section 16.52.012. (Ord. 1905, (part), 2002; Amended during May 1998 supplement; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.030 Appeal Board. A. The Planning Commission shall hear and decide appeals and requests for variances from the requirements of this chapter. B. The Planning Commission shall hear and decide appeals when it is alleged there is an error in any requirement, decision or determination made by the Director of Public Works in the enforcement or administration of this chapter. 1. Any person aggrieved by the decision of the Planning Commission may appeal such decision to the City 238 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] Council, in accordance with Section 8 of Procedural Ordinance No. 652. 2. In passing upon such applications, the Planning Commission shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and: a. The danger that materials may be swept onto other lands to the injury of others; b. The danger to life and property due to flooding or erosion damage; c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; d. The importance of the services provided by the proposed facility to the community; e. The necessity to the facility of a waterfront location, where applicable; f. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage; g. The compatibility of the proposed use with existing and anticipated development; h. The relationship of the proposed use to the comprehensive plan and floodplain management program for that area; i. The safety of access to the property in times of flood for the ordinary and emergency vehicles; j. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and k. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges. 3. Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subdivisions a through k in subsection B2 of Section 16.52.030 have been fully considered. As the lot size increases beyond one-half acre, the technical justification required for issuing the variance increases. 4. Upon consideration of the factors in subsection B2 of Section 16.52.030 and the purposes of this chapter, the Planning Commission may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. 5. The Director of Public Works shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.035 Conditions for Variance Issuance. A. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section. B. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. C. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. 239 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] D. Variances shall only be issued upon: 1. A showing of good and sufficient cause; 2. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and 3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. E. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. A copy of the notice shall be recorded to run with the land. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.040 General Standards. All Special Flood Hazard Areas are governed by the general standards set forth in Sections 16.52.040 through 16.52.044. (Amended during May 1998 supplement; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.041 Anchoring. A. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. B. All new and replacement manufactured homes and substantial additions to manufactured homes shall: 1. Be elevated so that the lowest floor is one foot above the base flood elevation; and 2. Be securely anchored to a permanent foundation to resist flotation, collapse or lateral movement. (Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.042 Construction Materials and Methods. A. All new construction and substantial improvements shall be constructed with new materials and utility equipment resistant to flood damage. B. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. C. All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. D. Within zone AO, adequate drainage paths shall be provided around structures on slopes to guide floodwaters around and away from proposed structures. E. All new construction and substantial improvements that fully enclose areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a 240 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] registered professional engineer or architect or meet or exceed the following minimum criteria: 1. Either a minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers, valves or other coverings or devices provided that they permit the automatic entry and exit of floodwaters; or 2. Be certified to comply with a local floodproofing standard approved by the Federal Insurance Administration. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.043 Utilities. Utility requirements are as follows: A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the systems into floodwaters. B. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.044 Subdivision Proposals. Requirements for subdivision proposals are as follows: A. All preliminary subdivision proposals shall identify the flood hazard area and the elevation of the base flood; B. All final subdivision plans will provide the elevation of proposed structure(s) and pads. If the site is filled above the base flood, the final pad elevation shall be certified by a registered professional engineer or surveyor and provided to the Director of Public Works; C. All subdivision proposals shall be consistent with the need to minimize flood damage; D. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage; and E. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.050 Specific Standards (Unnumbered A Zones and Zones A1-30). In all special flood hazards areas, including zones A1-30, where base flood elevation data has been provided as set forth in Section 16.52.011 (Lands to which this chapter applies) or subsection B of Section 16.52.021 (Use of other base flood data), or in unnumbered A zones where base flood level must be determined, the following additional provisions as set forth in this article are required. (Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.051 Residential Construction. 241 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] New construction and substantial improvements shall have the lowest floor, including basement, elevated to one foot above base flood elevation. Upon the completion of the structure, the elevation of the lowest floor including basement shall be certified by a registered professional engineer or surveyor, or verified by the Community Building Inspector to be properly elevated. Such certification or verifications shall be provided to the Director of Public Works. (Ord. 1905, (part), 2002; Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.052 Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated to one foot above the level of the base flood elevation; or, together with attendant utility and sanitary facilities, shall: A. Be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water; B. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and C. Be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certifications shall be provided to the Director of Public Works. (Ord. 1905, (part), 2002; Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.053 Manufactured Homes. A. Manufactured homes shall be anchored in accordance with subsection B of Section 16.52.041. B. Improvements to manufactured home parks and manufactured home subdivisions as described in subparagraphs 4a through 4c of this subsection shall be required under the following circumstances: 1. For new manufactured home parks and manufactured home subdivisions; 2. For expansions to existing manufactured home parks and manufactured home subdivisions; 3. For existing manufactured home parks and manufactured home subdivisions where the repair, reconstruction or improvement of the streets, utilities and pads equals or exceeds fifty percent of the value of the streets, utilities and pads before the repair, reconstruction or improvement has commenced; 4. For manufactured homes not placed in a manufactured home park or manufactured home subdivision, it shall be required that: a. Stands or lots are elevated on compacted fill or on pilings so that the lowest floor of the manufactured home will be one foot above the base flood level; b. Adequate surface drainage and access for a hauler are provided; and c. In the instance of elevation of pilings, that lots are large enough to permit steps; piling foundations are placed in stable soil no more than ten feet apart; and reinforcement is provided for pilings more than six feet above the ground level. (Ord. 1822, (part), 1999; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.054 Specific Standards (Zone AO). 242 CHAPTER 16.52: PREVENTION OF FLOOD DAMAGE document.htm[8/16/2016 7:42:52 AM] The following provisions shall apply to any area designated an AO zone in Section 16.52.011. The requirements for drainage paths as specified in Section 16.52.042D shall apply to construction authorized within the AO zone. A. Residential. All new construction and substantial improvements shall have the lowest floor, including basement, elevated above highest adjacent grade at least as high as the depth number specified on the FIRM or at least two feet above highest adjacent grade if no depth number is specified. Certification: Upon completion of any new or substantially improved structure in zone AO, the elevation of the lowest floor, including basement, shall be certified by a registered professional engineer or surveyor, or verified by the community Building Inspector to be properly elevated. Such certificate or verification shall be provided to the Floodplain Administrator. B. Nonresidential. All new construction and substantial improvements shall: 1. Be elevated as provided in subsection A of this chapter; or 2. Together with attendant utility and sanitary facilities be completely floodproofed to or above that level so that any space below that level is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; 3. Be certified by a registered professional engineer or architect that the standards of this subsection are satisfied. Such certification shall be provided to the Director of Public Works. (Ord. 1905, (part), 2002; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.055 Floodways. Located within areas of special flood hazard established in Section 16.52.011 are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles, and erosion potential, the following provisions apply: A. Prohibit encroachments, including fill, new construction, substantial improvements and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge; B. If Section 16.52.051 is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of Sections 16.52.040 through 16.52.044; C. Prohibit the placement of any mobile homes, except in an existing mobile home park or existing mobile home subdivision. (Amended during May 1998 supplement; Ord. 1412, Exhibit A (part), 1987; Ord. 1002, § 1.1 (part), 1980) 16.52.060 Penalty. Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. (Ord. 1886, (part), 2001; Ord. 1412, Exhibit A (part), 1987; Ord. 1179, § 3 (part), 1982) 243 24 4 24 5 FEDERAL EMERGENCY MANAGEMENT AGENCY COMMUNITY ASSISTANCE VISIT REPORT SECTION I 1. NAME OF COMMUNITY Cupertino 2. STATE CA 3. COMMUNITY ID NUMBER 060339 4. COUNTY Santa Clara 5. VISIT CONDUCTED BY Mark Delorey 6. AGENCY FEMA 7. DATE OF VISIT July 14, 2015 SECTION II 8. NAME OF LOCAL OFFICIAL Chad Mosley, Floodplain Administrator 9. TELEPHONE NUMBER (408)777-7604 10. ADDRESS OF LOCAL OFFICIAL 10300 Torre Ave, Cupertino CA 95014 SECTION III – FINDINGS PART A QUESTIONS – Select appropriate response RESPONSE Serious Minor None 1. Are there problems with the community's floodplain management regulations? X 2. Are there problems with the community's administrative/enforcement procedures? X 3. Are there engineering or other problems with the maps or Flood Insurance Study? X 4. Are there any other problems in the community's floodplain management program? X 5. Are there problems with the Biennial Report data? YES X NO 6. Are there any programmatic issues or problems identified? YES X NO 7. Are there any potential violations of the community's floodplain management regulations? X A potential violation or violations has/have been identified. No violations have been identified. X Actions are being taken on the part of the community to remedy the violation(s) identified during the CAV. 246 2 June 6, 2016 SECTION III – FINDINGS (Continued) ‐ PART B LIST OF ATTENDEES Chad Mosley – City of Cupertino, Senior Civil Engineer Mark Delorey – FEMA, Natural Hazards Program Specialist NARRATIVE The National Flood Insurance Program (NFIP) is based on an agreement between the federal government and participating communities that have been identified as flood prone. The Federal Emergency Management Agency (FEMA), through the Federal Insurance Administration, makes flood insurance available to the residents of a participating community, provided the community adopts and enforces adequate floodplain management regulations that meet the minimum NFIP requirements. A Community Assistance Visit (CAV) is a scheduled visit to a NFIP community to maintain periodic contact, evaluate the effectiveness of local floodplain management practices, and offer assistance, if needed. This report describes the findings of the July 14, 2015, CAV for the city of Cupertino. Based on the documentation provided during the CAV meeting and the follow-up emails from the city of Cupertino, additional documentation is required before FEMA can determine that the city complies with the NFIP requirements as specified in Title 44, Code of Federal Regulations. BACKGROUND The city of Cupertino first entered the National Flood Insurance Program (NFIP) on July 8, 1975 through the Emergency Program, then on May 1, 1980 through the Regular Program when the city’s initial Flood Insurance Rate Maps (FIRMS) were issued. Currently, there are 144 flood insurance policies in effect totaling $43,959,500 in coverage. Since joining the NFIP, there have been 10 paid losses totaling $812,170. There has been 1 reported substantial damage claim since the city joined the program. There have been 6 total repetitive losses on 3 structures located inside and outside of the Special Flood Hazard Areas (SFHAs) with losses amounting to $695,052. FLOODPLAIN MANAGEMENT REGULATIONS The city’s floodplain management ordinance regulations are contained in Chapter 16.52 (Ordinance number 1412) which was adopted on October 12, 1987. As part of the July 14, 2015 compliance meeting, the city of Cupertino’s Floodplain Management ordinance was thoroughly reviewed for compliance with minimum standards of the NFIP. 247 3 June 6, 2016 After the CAV meeting, FEMA staff reviewed the ordinance and determined that there is a need for an update to meet the minimum NFIP requirements pursuant to the Title 44, Code of Federal Regulations, Sections 59, 60.3-60.6, and 65.3 (CFR). To assist the community in updating its floodplain management regulations, FEMA provided an electronic copy of the current California Model Floodplain Management Ordinance, to the community for reference. The following sections should be revised or added to the Floodplain Management Ordinance: 1. Add the Citation of Statutory Authorization; for recommended wording see Section 1.1 of the California Model Floodplain Management Ordinance. 2. Add the following definitions to section 16.52.010 of the city’s ordinance (for recommended wording see Section 2.0 of the California Model Floodplain Management Ordinance): a. Existing Manufactured Home Park or Subdivision b. Expansion to an Existing Manufactured Home Park or Subdivision c. Historic Structure d. New Manufactured Home Park or Subdivision e. Recreational Vehicle f. Start of Construction g. Substantial Damage 3. Revising the following definitions in section 16.52.010: a. Add Zones AE, AH, and A99 to the SFHA definition. b. Revise the Substantial Improvement definition to match the recommended wording; see Section 2.0 of the California Model Floodplain Management Ordinance. 4. Revise section 16.52.011 of the city’s ordinance to (a) include a reference to all subsequent revisions and amendments to the flood maps and Flood Insurance study and (b) revise the date of the Flood Insurance Study from November 1979 to May 1, 1980. See section 3.2 of the California Model Floodplain Management Ordinance for recommended wording. 5. Add requirement to submit new technical data within 6 months to the city’s ordinance. See Section 4.2.D.2 of the California Model Floodplain Management Ordinance. 6. Update Section 16.52.035 of the city’s ordinance to match the Variance criteria shown in Section 6.0 of the California Model Floodplain Management Ordinance. 248 4 June 6, 2016 7. Add requirement for base flood elevation data for subdivision proposals or other development greater than 50 lots or 5 acres. See Section 5.3.A of the California Model Floodplain Management Ordinance for recommended wording. 8. Add one foot of freeboard to the Zone AO requirements in section 16.52.054 of the city’s ordinance. If the city requires one foot of freeboard for construction in other zones (e.g. Zone AE) it should also require the same freeboard in Zone AO. 9. Add the following wording (as shown in Section 5.1.C.3.a.4 of the California Model Floodplain Management Ordinance) to section 16.52.042 of the city’s ordinance: a. Building with more than one enclosed area must have openings on exterior walls for each area to allow flood water to directly enter; or 10. Add manufactured homes and recreational vehicles requirements to the city’s ordinance. See Sections 5.4.B and 5.5 of the California Model Floodplain Management Ordinance for recommended wording. ADMINISTRATIVE AND ENFORCEMENT PROCEDURES The Public Works Director is designated as the Floodplain Administrator pursuant to City’s Prevention of Floods Ordinance, Section 16.52.021. Public Works reviews all new residential and commercial developments to confirm the flood zone. If the proposed structure is determine to be in the special flood hazard zone the city requires per the city’s ordinance that the low floor be 1 foot above the Base Flood Elevation. For remodels and additions the building official will check substantial improvement. If the cost of substantial improvement meets or exceeds the 50% of the market value the structure will need to be in compliance with the minimum NFIP regulations. For proposed projects located in the Special Flood Hazard Area the city will require hydraulic modeling (e.g. HEC-RAS). The Santa Clara Valley Water District provides the city with the flows for each flooding source. Elevation Certificates are required for all new construction, additions, and substantial improvements in the Special Flood Hazard Area. Elevation Certificates are required at (1) pre construction; (2) during construction (after the foundation pour); and (3) at finished construction. Development in the floodway and variances are highly discouraged. Code enforcement is mostly complaint driven. In some occasions violations are identified during new permits when an older renovation is discovered. The enforcement actions include; (1) an administrative fine process; and (2) legal action. 249 5 June 6, 2016 OTHER PROBLEMS WITH THE COMMUNITY’S PROGRAM The city provided a document titled ‘Additions Located In Flood Hazard Areas’, dated September 1, 2015 which documents the methodology for substantial improvement calculations. Based on FEMA’s review of the document please address to the following questions/comments: 1. Revise the title of the document to ‘Alterations and Additions Located in the Special Flood Hazard Areas’; 2. Revise the date of the initial Flood Insurance Rate Map from December 31, 1974 to ‘May 1, 1980’ within the definitions for Post-FIRM Building and Pre-FIRM Building. 3. Please provide justification (source) for the square footage costs for the (1) Market Value for existing structures; (2) Alteration of existing structures; and (3) Construction Valuation of Addition. Attached is a sample document from another city’s Substantial Improvement procedures. PROGRAMMATIC ISSUES OR PROBLEMS IDENTIFIED There are none. FLOOD MITIGATION PROJECTS, ISSUES OR CONCERNS City Flood Mitigation projects were not discussed in detail. FIELD REVIEW A field inspection of the SFHAs of city of Cupertino produced several questions about development. 880 E Estates Drive – Residential construction near SFHA. Based on the effective FIRM and the Public Works Plan Check Comments sheet the structure is in Zone X. No further action required. 10181 Phar Lap Drive – Residential structure in SFHA. Elevation Certificate provided during meeting demonstrates that the structure and addition are in compliance; Low Floor and the Lowest Adjacent Grade are at or above the BFE. No further action required. 10336 Vicksburg Drive – Residential structure near SFHA. Based on the effective FIRM the structure is in Zone X. No further action required. 250 6 June 6, 2016 10518 East Estates Drive - Residential structure near SFHA. Based on the effective FIRM the structure is in Zone X. No further action required. 10530 Creston Drive - Residential structure in SFHA. Please provide FEMA with documentation showing that this structure is compliant. 10779 Brookwell Drive - Residential structure near SFHA. Based on the effective FIRM the structure is in Zone X. No further action required. 22157 Clear Creek Court - Residential structure in SFHA. Please provide FEMA with documentation showing that this structure is compliant. ENGINEERING FLOOD MAPS AND STUDY Zone D was briefly discussed as an issue when it comes to purchasing flood insurance. FEMA to add a request for restudy to remove Zone D from the city of Cupertino. COMMUNITY ACTION NEEDED The community must submit to FEMA, within sixty (60) days of the date of this report, the following: 1. A copy of a draft ordinance that amends the city’s current floodplain management regulations, as identified in the Floodplain Regulations section of this report. 2. Provide additional documentation as identified in the Other Problems with the Community’s Program section of this report. 3. Provide additional documentation as identified in the Field Inspection section of this report. 251 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-2119 Name: Status:Type:Public Hearings Agenda Ready File created:In control:10/26/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Appeal of Kimberly Sandstrom Appeal Regarding Eligibility to Purchase Below Market Rate (BMR) Unit (Continued from October 4) Sponsors: Indexes: Code sections: Attachments:Staff Report A- Summary of Conflict of Interest Investigation B- Draft Resolution C- Housing Commission Resolution 16-06 D- Excerpts from BMR Manual Regarding Income Calculation E- Referenced Regluations (24 CFR 5.609(b) and (c) F- Technical Guide for Determining Income G- Attachments and Other Documents Provided by Appellant H - Sandstrom presentation Action ByDate Action ResultVer. City Council11/1/20161 Subject:AppealofKimberlySandstromAppealRegardingEligibilitytoPurchaseBelow Market Rate (BMR) Unit (Continued from October 4) ApproveResolutionNo.16-101regardingtheappealofMs.KimberlySandstromand affirmingtherecommendationoftheHousingCommissionregardingtheeligibilityofMs. Sandstrom to purchase a BMR unit CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™252 COMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333 CITY COUNCIL STAFF REPORT Meeting: November 1, 2016 Subject Appeal of Ms. Kimberly Sandstrom Regarding Eligibility to Purchase a Below Market Rate (BMR) Unit Recommended Action Approve the draft resolution regarding the appeal of Ms. Kimberly Sandstrom and affirming the recommendation of the Housing Commission regarding the eligibility of Ms. Sandstrom to purchase a BMR unit. Introduction Under Chapter 19.172 of the Cupertino Municipal Code, the City administers a Below Market Rate Housing Program (the "BMR Program") to provide housing affordable to a broad range of households with varying income levels within the City. The City administers the BMR Program using the guidelines included in the Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units (the "BMR Manual"), which was approved by the City Council. The City contracts with West Valley Community Services ("WVCS") to manage the BMR Program, including the determination of eligibility of potential homebuyers. Kimberly Sandstrom has appealed the finding by WVCS that she did not qualify to purchase a moderate income level BMR unit in the City because her annual gross income exceeded the maximum allowable income for a two-person household at a moderate income level in Santa Clara County. On August 11, 2016 the Housing Commission recommended to the City Council that it find that Ms. Sandstrom was ineligible to purchase a BMR home because, based on her application, her income exceeded the established income limit. (See Exhibit C.) 253 2 Background In January 2016 a BMR unit became available for sale. Ms. Sandstrom was highest on the waiting list established by WVCS for purchase of the unit, with the appropriate household size and income. However, when her income documentation was reviewed by WVCS, her income was found to exceed the established income limit. She completed three levels of WVCS' internal grievance process, each of which affirmed the initial finding that her income exceeded the established income limit. In addition, while the WVCS grievance process was under way, she attended a City Council meeting and three City Housing Commission meetings under open time, during which she objected to the finding of her ineligibility to purchase the BMR Unit, and she submitted a packet to the City Council on March 15 containing materials regarding the determination of her income. Following that appearance, the City requested outside counsel to review the income determination. They concluded that her income exceeded the established income limit to qualify for a BMR unit. The WVCS grievance procedures at the time normally would have a fourth level of review, to the WVCS Board of Directors. Ms. Sandstrom provided the City with a copy of that appeal, which revealed that the BMR unit at issue had been sold to a WVCS employee. In light of the potential conflict of interest, the City requested that WVCS recuse itself such that the next level of appeal would be before the Housing Commission, which was intended to be the next stage of the appeal process in any case. WVCS agreed to recuse itself, and Ms. Sandstrom was informed that her appeal would move forward in front of the Housing Commission, which would make a recommendation to the City Council for a final decision. On June 23, 2016, the Housing Commission heard Ms. Sandstrom's appeal. The Housing Commission continued its decision on the appeal until the August 11th meeting to allow for more time to properly respond to her questions and to research how other local jurisdictions calculate income. On August 11, 2016, the Housing Commission heard the continuation of Ms. Sandstrom's appeal. After considering all evidence presented, the Housing Commission approved Resolution 16-06 by a 3-1 vote to recommend to the City Council that the City Council affirm the determination that Kimberly Sandstrom was ineligible to purchase the BMR home because her income exceeded the established income limit. The Commission also recommended that she be allowed to retain her current position on the BMR waiting list administered by WVCS. PowerPoints and other documentation provided by Ms. Sandstrom are attached as Exhibit G. 254 3 The City Council’s decision is the final level of review, subject to reconsideration. Calculation of Maximum Income The procedures governing the City's administration of the BMR Program are contained in Section 2.4 of the BMR Manual, based on the United States Department of Housing and Urban Development ("HUD") regulations contained in 24 CFR 5.609(b), delineates the process used to determine an applicant's annual gross income. In addition to "salary and other wages", annual gross income includes "bonuses and other compensation", in accordance with 24 CFR 5.609(b). Section 2.4 of the BMR Manual is attached as Exhibit D. The BMR Program uses income limits published by the California Department of Housing and Community Development. For a two-person household at a moderate income level in Santa Clara County, the income limit was $102,050 at the time she applied. (Income limits were updated by the California Department of Housing and Community Development in May 2016. The current limit is $102,800.) Ms. Sandstrom applied for the BMR unit as a two- person household. Therefore, for Ms. Sandstrom to have been eligible to purchase the BMR unit, her income could not exceed $102,050. Section 2.4.1 of the BMR Manual states that, to verify the applicant's sources of income, the City may request signed copies of federal tax returns for the most recent three years, W2 forms for most recent two years, and/or copies of the last three consecutive payroll stubs or other verification of employment. In Ms. Sandstrom's case, WVCS used her last three consecutive payroll stubs, which listed regular and bonus income, to determine her income eligibility. However, the bonus income at issue and discussed below would also have been shown on her W2 form and 2015 tax return, which may not have been available when she applied in January 2016. Calculation of Income The three payroll stubs provided by Ms. Sandstrom display gross wages in the amount of $3,692.80 paid biweekly. Therefore, to determine her gross annual wages, $3,692.80 is multiplied by 26 pay periods for a total of $96,012.80 per year. Since bonuses are also included in the calculation, as provided in the BMR Manual and the regulations adopted by HUD and contained in 24 CFR 5.609(b), the 2015 bonus pay would be added in the total amount of $7,635.34, which consisted of various types of bonuses. The total of Ms. Sandstrom's annual gross wages plus the total bonuses received was $103,648.14, which exceeded the January 2016 income limit of $102,050 for a two-person household at a 255 4 moderate income level in Santa Clara County. Therefore, Ms. Sandstrom's annual gross income was over the maximum permitted to be entitled to purchase the BMR Unit. To summarize: Gross income: $3,692.80 x 26 (pay periods) = $ 96,012.80 Bonus (per 24 CFR 5.609(b): 7,635.34 Total: $103,648.14 INCOME LIMIT: $102,050.00 The crux of Ms. Sandstrom's argument regarding her income eligibility is that the determination should be forward-looking under 24 CFR 5.609(a)(2), which states that annual income includes all amounts which "[a]re anticipated to be received from a source outside the family during the 12-month period following admission or annual reexamination effective date." The City’s BMR Manual at the time of her application excluded subsection (a) from its definition of annual income; it only referenced subsections (b) and (c). The Manual explicitly states that income is determined through past evidence of income (i.e. tax returns, W2 forms, and paystubs) and, as provided by 24 CFR 5.609(b), bonuses received during the years covered by those documents are part of the income calculation. However, using subsection (a) of this statute does not change the calculation. The income calculation is forward-looking, whether using subsection (a) or only subsections (b) and (c), in that the calculation uses past income data to project future income. This form of forward-looking projection using documentation of past income is uniformly used in both federal and local housing programs, as discussed below. In general, this use of past income is not adjusted unless there is firm documentation available to reflect changes in future income, such as a major life change since the last year (e.g., job loss, demotion, or promotion, retirement, or disability). The issue in this appeal is solely the extent to which past bonuses should be used to calculate current income. Ms. Sandstrom has provided evidence of a lower mid-year bonus in 2016 than she received in 2015 and evidence of her company's declining stock prices to show that her total bonuses will substantially decline this year. However, stock prices can fluctuate greatly in any given year, and performance during the preceding few months is not an indication of future stock performance. In addition, the stock price for her company was higher at the beginning of 2016 than it was at the beginning of 2013 when she received $8,000 in performance bonuses. As shown in her 256 5 presentations given at the June 23rd and August 11th Housing Commission meetings, Ms. Sandstrom's total bonuses have fluctuated over the past three years, but actually increased in 2015. Her bonuses in 2013 totaled $8,100; in 2014 totaled $6,150; and in 2015 totaled $7,635.34. The average of the past three years' bonuses is $7,295. Given bonus fluctuations in past years, it would be speculative to estimate the totality of potential yearly bonuses based on one mid-year bonus and her company's limited financial information available for the year at the time she made her application in January. Using the average bonus from the last 3 years, her income would still exceed the BMR limit. $7,295 (the average bonus) plus $96,012.80 (her base salary) equals $103,307.80, which exceeds the then income limit of $102,050 for a two-person household at a moderate income level in Santa Clara County. Income Calculations Used in Other Jurisdictions The income calculations used by the City are consistent with those used in other local jurisdictions. To research income calculations used in other jurisdictions, the City reviewed the BMR programs in other jurisdictions and those administered by BMR program consultants, including the City of Sunnyvale, Alameda County, the City of Emeryville, Palo Alto Housing Corporation, and Housing Trust Silicon Valley. Ms. Sandstrom had asked the City to consider using the City of Sunnyvale’s policies. Sunnyvale's standards for calculating income are essentially the same as Cupertino's. Sunnyvale follows the Technical Guide for Determining Income and Allowances for the HOME Program (a guide published by HUD) (the "HOME Guide") and 24 CFR 5.609 (referred to as the "Part 5" method), the same statute used by the City for its income calculations, to determine gross household income of their applicants. Under Part 5 and the HOME Guide, bonuses are explicitly included as income. The HOME Guide explains in its section entitled "Anticipating Income" that to calculate an applicant's income, the public agency "must project a household's income in the future. To do so, a 'snapshot' of the household's current circumstances is used to project future income. In general, a [public agency] should assume that today's circumstances will continue for the next 12 months, unless there is verifiable evidence to the contrary." This is entirely consistent with the City's method of calculating income. The City uses an applicant household's current earnings from the past year to project the household's future income. Further, the HOME Guide goes on to specify that "[t]his method should be used even when it is not clear that the type of income received currently will continue in the coming year." For Section 24 CFR 5.609 and the entire excerpt from the HOME Guide, please see Exhibits E and F to this staff report. 257 6 Other jurisdictions, including those that use Neighborhood Stabilization Program homebuyer funds, also use the HOME Guide to calculate applicant incomes for their programs. The Housing Commission made a recommendation at the August 11th meeting that the City adopt the use of the HOME Guide for its BMR Manual and, for further clarity and conformity with other jurisdictions, incorporate the entire 24 CFR 5.609 provisions in the Manual, including subpart(a). Though it does not change the method of income calculation, adoption of the HOME Guide would provide further clarity for applicants and WVCS and provides helpful examples of income calculations. It is important that WVCS and the City have clear guidance as to how to calculate income. Given the critical housing shortage in Cupertino, and varying incomes in the "gig economy", it can be expected that the issue of projecting income forward will arise repeatedly. The HOME Guide provides the best guidance available. The Council agenda item regarding BMR Manual revisions incorporates these changes. Conflict of Interest Issues and Investigation As described earlier in this report, after Ms. Sandstrom was found to be over income, the BMR unit was sold to a WVCS employee. Ms. Sandstrom alleged that this sale violated State conflict of interest laws (Section 1090 and the Political Reform Act) and has asked that the sale be reversed. Regardless of Ms. Sandstrom’s income calculation, it is important that the City’s BMR program be fairly administered. As a result, the City contracted with outside counsel to conduct a formal conflict of interest investigation. A summary of that investigation is attached as Exhibit A. The investigation has concluded that there is no evidence that a preference was given to the WVCS employee, who was the next qualified applicant on the waiting list with the appropriate household size and income and whose income was calculated consistent with the BMR Manual. The investigation also concluded that there was no violation of State conflict of interest laws. Nonetheless, the City was concerned about the appearance of a conflict when WVCS reviews the application of its own employee. Consequently, on August 2, 2016 the City Council approved changes to the BMR Manual that require that if any employee of any consultant involved with City housing programs is on the waiting list, all review and evaluation of the employee’s application must be performed by the City. Additionally, the City was concerned that the former lengthy appeal process could not be completed before the BMR unit needed to be sold. In the future, any appeal will be heard first by the 258 7 Executive Director of WVCS, or by the Director of Community Development if a WVCS employee is involved, with a final second level appeal decided by the City Council. The BMR unit will not be sold before the appeal is completed. Conclusions and Recommendation Staff recognizes how close Ms. Sandstrom was to income qualifying for a BMR unit and that she might well qualify at a future time. In addition, her appeal could not be completed prior to the sale of the BMR unit. In recognition of these factors, the Housing Commission recommended that Ms. Sandstrom maintain her current priority for a two-bedroom unit on the BMR Program waiting list when new and continuing waiting list applications are accepted in October. Sustainability Impact None. Fiscal Impact None. Prepared by: Benjamin Fu, Assistant Director of Community Development Aarti Shrivastava, Assistant City Manager/Director of Community Development Approved for Submission by: David Brandt, City Manager Attachments: A. Summary of Conflict of Interest Investigation B. City Council Resolution No. 16-07 C. Housing Commission Resolution No. 16-06, a Resolution of the Housing Commission of the City of Cupertino Regarding the Appeal of Ms. Kimberly Sandstrom D. BMR Administrative Manual (excerpts regarding income calculation) E. Referenced Regulations (24 CFR 5.609) F. Technical Guide for Determining Income and Allowances for the HOME Program (excerpts regarding income calculations) G. Letters of Appeal and Decisions and Other Documentation Provided by Kimberly Sandstrom H. Sandstrom presentation 259 1 394\17\1957448.3 Exhibit A Summary of Investigation Regarding Conflict of Interest Allegations Prepared by Celia W. Lee, Goldfarb & Lipman LLP Background of Investigation The City of Cupertino engaged the law firm of Goldfarb & Lipman LLP to investigate whether there were any violations of conflict-of-interest laws in the sale of the two-person household, moderate-income Below Market Rate unit at 20500 Town Center Lane, Unit 262 ("BMR Unit") to Michelle Ma (referred to at times as "Purchaser Ma"), who was an employee of West Valley Community Services ("WVCS") at the time of the sale. WVCS, a non-profit organization of approximately 18 employees, administers the BMR Program for the City of Cupertino in addition to providing other social services in the community. This summary provides an overview of Goldfarb & Lipman LLP's findings and conclusions from the investigation. The investigation involved interviews of witnesses, observation of the office surroundings at WVCS, and review of a substantial number of documents obtained from various sources, including WVCS, the City, and applicant Kimberly Sandstrom ("Sandstrom"). Documents reviewed include WVCS files pertaining to the formation of the 2015-2016 BMR waiting list via random lottery pursuant to the BMR Manual, records of contacts with potential applicants, and application files for Purchaser Ma and Sandstrom, including income eligibility documentation. The investigation also involved review and analysis of the law pertaining to Government Code section 1090, which prohibits public officials and employees from being financially interested in "any contract made by them in their official capacity or by any body or board of which they are members," and the Political Reform Act, which disqualifies public officials from participating in government decisions in which they have a financial interest. Findings The investigation revealed that the methodology employed by WVCS and its Housing Program Manager, Christine Nguyen, to create the annual waiting list for BMR ownership units comported with the procedures set forth in the BMR Manual. As part of our investigation, we reviewed the step-by-step process employed by WVCS, as set forth in Sections 2.3 and 2.3.1 of the BMR Manual. The 2015-2016 waiting list of 49 people, comprised of applicants of varying household sizes and income levels, was created by a random lottery. Sandstrom, Purchaser Ma, and other persons who had submitted an Eligibility Form in October 2015 and were deemed eligible to be on the waiting list based 260 2 394\17\1957448.3 on stated income were assigned priority points according to whether they lived or worked in Cupertino. Within each priority grouping, eligible applicants received a place on the waiting list by random drawing. Sandstrom, who had three priority points, was number 12 on the waiting list. Purchaser Ma had two priority points and was number 23 on the waiting list. While Ma was eleven places down from Sandstrom on the waiting list, Ma was the next person in line after Sandstrom who applied as a household of two persons at a moderate income level. Everyone else between Sandstrom and Ma on the waiting list either was not a household of two persons and/or was not at a moderate income level. The BMR Unit's owner/seller notified the City and WVCS on January 20, 2016 that she wished to sell the unit, and that she needed to close by March 4, 2016 as a new home purchase out of state was contingent on the sale of the BMR Unit. However, due to her obligation to remedy some building code violations for work she had illegally performed on the unit, it was not available for sale until February 9. Starting on January 20, Nguyen contacted potential applicants for the BMR Unit. As of the time that the unit became available, Sandstrom was the primary applicant, as she was the person highest on the waiting list with a household of two persons at a moderate income level. Purchaser Ma was the first backup applicant, and another individual was the second backup. Sandstrom (with a family member as the second household member) completed an application for the unit, but upon review and evaluation of her income documentation, WVCS determined that her income exceeded the maximum for that BMR Unit. Thus, she was deemed ineligible to purchase the BMR Unit. Purchaser Ma, as the first backup from the waiting list, also completed an application for the unit, with her adult family member as the second household member. WVCS reviewed Ma and her adult family member's income documentation and concluded their household income fell within the appropriate limit. WVCS approved their purchase of the BMR Unit, and the sale closed on March 29, 2016. After the City received documentation during Sandstrom's appeal process alleging conflict of interest violations, Goldfarb & Lipman LLP independently reviewed all income eligibility documentation and calculations for both Sandstrom and Purchaser Ma, and concluded that (1) Sandstrom's income exceeded the limits and (2) Ma and her adult family member's income was within the income limits, and they qualified for the unit. Purchaser Ma first started working for WVCS in 2008 as a Family Support Specialist, a professional social work position. As she progressed in seniority, she came to supervise other, more junior individuals who performed various social work duties at WVCS. From July 2015-onward, Ma's position at WVCS was Director of Client Services. She did not 261 3 394\17\1957448.3 head any departments within WVCS. All WVCS witnesses confirmed Ma did not have any involvement in the BMR Program as part of her job duties, and there is no evidence that she had any involvement, knowledge, or influence regarding the BMR Program. Ma left WVCS for other social work employment at the end of April 2016. WVCS had its own conflict of interest policy regarding the BMR Program in effect since July 2011. The policy prohibited upper management (Executive Director and Department Directors) and any staff who participated in administering the BMR Program (i.e., Christine Nguyen and any staff she supervised) from applying. The policy also dictated that there would be no special consideration for any staff member who applied, and a staff member applicant would be subject to the same BMR requirements set forth by the City and WVCS as any other applicant. A violation of Government Code section 1090 exists if the pertinent individual participated in the making of a contract in their official capacity and also had a financial interest in the contract. Independent contractors or consultants to public entities (such as WVCS) are subject to its restrictions. In terms of the Political Reform Act, one is prohibited from making, participating in, influencing or attempting to use their official position to influence any government decisions in which one has a financial interest. Government Code section 87100 et seq. Our investigation found that there were no violations in this instance. As an initial matter, while her employer was an independent contractor to the City, it is questionable whether Purchaser Ma can be considered as such, as her social work duties at WVCS were not specifically designated to be in service for the City. Assuming for the sake of argument that Ma herself can be considered as an independent contractor to the City by virtue of her employment with WVCS, Ma's purchase of the BMR Unit was not the "making" of a contract in her official capacity. She did not participate in any actions or determinations that led to her place on the waiting list or the successful qualified applicant; she had no control over the selection or qualification process; and she never had any involvement or input in the BMR Program or its administration by WVCS. Everything leading to her purchase of the BMR Unit, other than her initial decision to apply, came about by circumstances outside her control. Nguyen and Purchaser Ma were friendly co-workers, but there is no evidence Nguyen gave Ma any preference or advantage in the sales or qualification process for the BMR Unit. Rather, the investigation found otherwise. The process of creating the waiting list, which determined Ma's position on the list as the person next in line after Sandstrom for a two-person household and moderate income unit, was random and followed the BMR 262 4 394\17\1957448.3 Manual procedures. As mentioned previously, this office reviewed WVCS's income calculations for both Sandstrom and Purchaser Ma and determined them to be correct. Conclusions In sum, our investigation found no conflict of interest violations. We acknowledge that on August 2, 2016, the City Council approved changes to the BMR Manual that (1) require that if any employee of any consultant involved with City housing programs is on the BMR waiting list, all review and evaluation of the employee’s application must be performed by the City; and (2) in the future, any appeal will be heard first by the Executive Director of WVCS, or by the Community Development Director if a WVCS employee is involved, with a final second level appeal decided by the City Council. The BMR unit will not be sold before the appeal is completed. We believe these actions by the Council are well-advised to avoid any appearance of a conflict in the future. 263 1 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 16-101 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO REGARDING THE APPEAL OF MS. KIMBERLY SANDSTROM AND AFFIRMING THE RECOMMENDATION OF THE HOUSING COMMISSION REGARDING THE ELIGIBILITY OF MS. SANDSTROM TO PURCHASE A BMR UNIT WHEREAS, the City of Cupertino (the "City") has since 1993 implemented an Office and Industrial Housing Mitigation Program and a Residential Housing Mitigation Program, described in the Housing Element of the General Plan, requiring the payment of housing mitigation fees by non-residential development and residential projects with six units or less, and requiring the provision of moderate-income and median-income housing in developments with seven units or more (the "Housing Mitigation Program"); and WHEREAS, the Policy and Procedures Manual for Administering Deed-Restricted Affordable Housing Units (the “BMR Manual”) serves as the day-to-day operational manual for both City staff and its Below Market-Rate (BMR) program administrator for BMR units generated by the City's Housing Mitigation Program; and WHEREAS, the City contracts with West Valley Community Services ("WVCS") to manage the BMR program, including the determination of eligibility of potential applicants; WHEREAS, applicants who desire to rent or purchase a BMR unit in the City must complete an application demonstrating that the applicant's annual gross income does not exceed the maximum published limit for the BMR unit; and WHEREAS, WVCS maintains a waiting list of qualified applicants who wish to rent or purchase a BMR unit; and WHEREAS, Kimberly Sandstrom applied to purchase a BMR unit that became available in January 2016; and WHEREAS, based on the requirements of the BMR Manual, WVCS determined that Ms. Sandstrom's annual gross income exceeded the established income limit to purchase the BMR unit; and 264 2 WHEREAS, Ms. Sandstrom has completed three levels of appeal at WVCS; and WHEREAS, Ms. Sandstrom has completed a fourth level of appeal to the Housing Commission, which made a recommendation to the City Council that the City Council affirm the determination that Kimberly Sandstrom was ineligible to purchase a BMR unit because her income exceeded the established income limit, but permit Ms. Sandstrom to retain her current position on the BMR waiting list; and WHEREAS, Cupertino Municipal Code Section 2.08.096 regarding a petition for reconsideration applies to this Council adjudicatory action. Further, the City of Cupertino has adopted the time limits contained in the California Code of Civil Procedure Section 1094.6 and the time within which to seek judicial review of a final decision is governed by that section. THEREFORE, BE IT RESOLVED: Section 1. After careful consideration of the facts, exhibits, staff report, testimony, and other evidence submitted in this matter, the City Council finds as follows: 1. The foregoing recitals are true and correct and incorporated into this resolution by this reference. 2. Kimberly Sandstrom's income was correctly determined to exceed the established maximum allowable income for a two-person household at a moderate income level in Santa Clara County. Her income was correctly determined to be $103,648.14, consisting of biweekly income of $96,012.80 and bonus income of $7.635.34, for a total income of $103,648.14, based on the provisions of the BMR Manual and as described in the staff report. Section 2. The City Council hereby further provides that Kimberly Sandstrom retain her current priority for a two-bedroom unit on the BMR waiting list maintained by WVCS when new and continuing waiting list applications are accepted in October. 265 3 PASSED AND ADOPTED this 1st day of November 2016, at a meeting of the City Council of the City of Cupertino by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: APPROVED: Grace Schmidt Barry Chang City Clerk Mayor, City of Cupertino 266 Attachment C RESOLUTION NO. 16-06 A RESOLUTION OF THE HOUSING COMMISSION OF THE CITY OF CUPERTINO REGARDING THE APPEAL OF MS. KIMBERLY SANDSTROM WHEREAS, the City of Cupertino (the "City") administers a Below Market- Rate (BMR) housing program; and WHEREAS, the City contracts with West Valley Community Services ("WVCS") to manage the BMR program, including the determination of eligibility of potential applicants; WHEREAS, the Policy and Procedures Manual for Administering Deed-Restricted Affordable Housing Units (the “BMR Manual”), adopted by the City Council, serves as the day-to-day operational manual for both City staff and WVCS in administering the BMR program; and WHEREAS, applicants who desire to rent or purchase a BMR unit in the City must complete an application demonstrating that the applicant's annual gross income does not exceed the maximum published limit for the BMR unit; and WHEREAS, WVCS maintains a waiting list of qualified applicants who wish to rent or purchase a BMR unit; and WHEREAS, Kimberly Sandstrom applied to purchase a BMR unit that became available; and WHEREAS, based on the BMR Manual, WVCS determined that Ms. Sandstrom's annual gross income exceeded the established income limit to purchase the BMR unit; and WHEREAS, Ms. Sandstrom has completed three levels of appeal at WVCS; and WHEREAS, Ms. Sandstrom has further appealed to the Housing Commission, which will make a recommendation to the City Council for the final decision. NOW, THEREFORE, BE IT RESOLVED, after careful consideration of the facts, exhibits, staff report, testimony and other evidence submitted in this matter, that the Housing Commission recommends that the City Council affirm the determination that Kimberly Sandstrom was ineligible to purchase a BMR unit because her income exceeds 267 Attachment C the established income limit, as calculated consistent with the BMR Manual in effect at the time of the determination of her income; and BE IT FURTHER RESOLVED that, because the appeal procedures then in place did not allow Ms. Sandstrom to complete her appeal before the affected BMR unit was sold, the Housing Commission further recommends that the City Council permit Ms. Sandstrom to retain her current position on the BMR waiting list. PASSED AND ADOPTED this 11th day of August 2016 at a regular meeting of the Housing Commission of the City of Cupertino by the following roll call vote: Vote: AYES: Harvey Barnett, Rajeev Raman, Sue Bose NOES: Nina Daruwalla ABSENT: Shirley Chu ABSTAIN: ATTEST: APPROVED: /s/ Aarti Shrivastava /s/ Harvey Barnett Aarti Shrivastava, Assistant City ManagerHarvey Barnett, Chair, Housing Commission 268 Exhibit D D-1 Excerpts Regarding Income Calculation - Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units 269 Exhibit E E-1 Referenced Regulations (24 CFR 5.609(b) and (c)) 270 Exhibit E E-2 271 Exhibit E E-3 272 Exhibit E E-4 273 Exhibit F F-1 Technical Guide for Determining Income and Allowances for the HOME Program Anticipating Income The HOME regulations at 24 CFR 92.203(d)(1) require that, for the purpose of determining eligibility for HOME assistance, a PJ must project a household’s income in the future. To do so, a “snapshot” of the household’s current circumstances is used to project future income. In general, a PJ should assume that today’s circumstances will continue for the next 12 months, unless there is verifiable evidence to the contrary. For example, if a head of household is currently working for $7.00 per hour, 40 hours per week, the PJ should assume that this family member will continue to do so for the next year. Thus, estimated earnings will be $7.00 per hour multiplied by 2,080 hours, or $14,560 per year. This method should be used even when it is not clear that the type of income received currently will continue in the coming year. For example, assume a family member has been receiving unemployment benefits of $100 per month for 16 weeks at the time of income certification. It is unlikely that the family member will continue on unemployment for another 52 weeks. However, because it is not known whether or when the family member will find employment, the PJ should use the current circumstances to anticipate annual (gross) income. Income would therefore be calculated as follows: $100 per week x 52 weeks, or $5,200. The exception to this rule is when documentation is provided that current circumstances are about to change. For example, an employer might report that an employee currently makes $7.50 an hour, but a negotiated union contract will increase this amount to $8.25 an hour eight weeks from the date of assistance. In such cases, income can be calculated based on the information provided. In this example, the calculation would be as follows: • $7.50/hour x 40 hours/week x 8 weeks = $2,400 • $8.25/hour x 40 hours/week x 44 weeks = $14,520 • $2,400 + $14,520 = $16,920. Sources of Earned Income In addition to hourly earnings, PJs must account for all earned income. In addition to the base salary, this will include annual cost of living adjustments (COLAs), bonuses, raises, and overtime pay. In the case of overtime, it is important to clarify whether overtime is sporadic or a predictable component of an employee’s income. If it is determined that an applicant has earned and will continue to earn overtime pay on a regular basis, PJs should calculate the average amount of overtime pay earned by the applicant over the pay period the PJ is using to calculate income eligibility (3 months or 12 months). This average amount is then to be added to the total amount of projected earned income over the following 12-month period. Exhibit 2.1 provides a step-by-step explanation of the standard methodology for projecting annual income. 274 Exhibit F F-2 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 City Council SEPTEMBER 20, 2016 350 Overview •Milestones •My eligibility •BMR unit eligibility •Rules / rule changes •Relevant documents •Conflict of interest •Denial of due process •Investigation questions Role of Commissioners and Councilmembers 351 January, 2016 20:Notified that I was selected candidate (with 2 backups) and application must be completed by 27-Jan 21:I asked about income over limit in 2015 –answer was that over limit in the past does not disqualify, as eligibility depends on current income 25:I completed my application 26:I met with Christine at 4pm. She said I was over limit. I showed her that current wages plus last year’s performance bonus was under limit, she said she would consult with city staff 28:Christine emailed, saying after staff consultation, I am over limit 352 February, 2016 2:C.J. emailed, saying my eligibility is not yet determined; he asked for latest paystub; later he said unit failed inspection and instructed Christine to remove it from list of units eligible for sale 9:Christine cancelled meeting with C.J. and I. The unit passed inspection, but I was not informed of this 11:I attended Housing Commission meeting at 9am. C.J. explained that if I applied 12-Feb, I would be eligible. I attended meeting at WVCS (with Christine, C.J.) at 2pm where I provided mid-year bonus statement. Christine emailed attachment on letterhead stating my ineligibility at 6:50pm 353 February, 2016, continued 12:I delivered my first grievance to WVCS, but Ms Venkatraman was not in the office 16:Ms Venkatraman called me, in response to voicemails I left on April 12th regarding bringing / leaving grievance. She said I was ineligible; no unit was available and sale to alternate was 80% done 22:I received Ms Venkatraman’s response to my grievance by certified mail Capital Gains 354 Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units, as amended 2-Aug by City Council Resolution No. 16-084 (although no changes to Exhibit 3, per the Resolution) From Agenda Packet: E- Referenced Regluations (24 CFR 5.pdf (near bottom of page E-2 on left) (and near top of page E-2, below) 355 March, 2016 1:I handed my second grievance to Mr Selo 8:I received Mr Selo’s response to my grievance by certified mail 10:I attended Housing Commission meeting at 9am 15:I attended City Council meeting at 6:45pm and during Oral Communications, I asked the City Council to investigate my case. I provided detailed and pertinent records 29:BMR unit was sold on or about this date to Director of Client Services at WVCS and her adult sister, but this fact was not discovered by me for about four weeks 356 Excerpt from CC Resolution No. 16-084 Adopting Amendments to the Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units.pdf Although this regulation was not part of the BMR Manual in March, 2016, a Conflict Of Interest event clearly occurred with WVCS’s approval of the eligibility of their own employee, after denying my eligibility 357 Excerpt from California Law Governing Conflict of Interest, by Orange County Department of Education, June, 2014 358 April, 2016 5:I attended City Council meeting at 6:45pm 14:I attended Housing Commission meeting at 9am, where I was allowed to speak for 3 minutes. I recalled 11- Feb meeting and asked commissioners to take action against capricious decision. C.J. said that grievances to WVCS must continue 19:I attended meeting of the Board Administration Committee of the Board of Directors of WVCS at 4pm where I was allowed to speak for 3 minutes. I asked committee to take action against capricious decision and I handed my third grievance to the Board Chair 19, continued: I attended City Council meeting at 6:45pm, where C.J. presented CDBG Annual Plan and funding details (item 15 on Agenda). Afterwards, he was asked by Councilmember Paul for an update on my appeal. C.J. stated that I had two more levels of grievance to complete at WVCS. He said that, in the future, the Assistant City Manager could be asked to place my appeal on the agenda of the Housing Commission 27:I received, by certified mail, Mr Barkey and Ms Harper’s response to grievance three, which told me to forward any following grievance to Mr Selo. I discovered the identity of the buyer of the BMR unit in public records search 359 May, 2016 3:I sent my fourth grievance to MrSelo as an email attachment (copying C.J., Assistant City Manager, Mayor and Councilmembers) expressing my outrage at the Conflict of Interest that arose when WVCS qualified their own staff after disqualifying me. I asked for a full investigation; acknowledgment and rectification of the error that resulted in my disqualification; a complete reconsideration of the unlawful sale and a lawful sale to take its place. MrSelo responded with attachment BMR Policy for WVCS Staff. I attended City Council meeting at 6:45pm 6:C.J. emailed MrSelo suggesting that WVCS recuse itself and that the appeal would move to the Housing Commission. I responded to C.J. and Ms Shrivastava asking that my appeal appear on the Agenda of the 12-May Housing Commission meeting. There was no response to my email 12: I attended Housing Commission meeting at 9am, where my appeal was not on the agenda and I was allowed to speak for 3 minutes. C.J. said my appeal would be heard at the 9-Jun meeting because there had not been time to get it on today’s agenda. He said that Ms Shrivastava would follow up, as he was leaving the City of Cupertino for other employment and this was his last Housing Commission meeting 360 BMR Policy for WVCS Staff Below Market Rate Policy for WVCS Staff adopted 7/19/11 Below Market Rate West Valley Community Services staff who does not have decision making authority or influence of the BMR program may apply as a potential candidate for the BMR program. Staff excluded from application include but not limited to: Executive Director, Department Directors, WVCS BMR staff. There will be no special consideration or accommodations for the staff's application. The staff member must qualify based on BMR requirements set forth by the City of Cupertino and WVCS, and will be given priority points based on the same criteria as all qualified applicants. The staff member will not participate in any BMR program decision making processes for application, qualification or placement. The staff member will not have any access to BMR files or other BMR client information. 361 June, 2016 6:I emailed MsShrivastava because no agenda was posted for 9-Jun Housing Commission meeting. Mr Fu replied that my appeal was continued to 23-Jun 9:Housing Commission meeting is cancelled “due to lack of business” 23:Special meeting of the Housing Commission had my appeal on the Agenda as item 3. External Counsel, acting as staff, made a presentation. I made a presentation. There were comments from the public. From the minutes: “Chair Barnett said that the Commission would take all the information received today into consideration, review with Staff and bring this item back for a recommendation at the meeting of July 14, 2016” 362 July and August, 2016 July 6:Mr Fu called and told me that the 14-Jul Housing Commission meeting would be cancelled because external counsel needed more time to investigate the determination of my income. When I asked about the criminality of the transfer, he said they were investigating that too. He said my appeal would be continued to 11-Aug. He also sent an email with essentially the same information 14:Housing Commission meeting is cancelled “due to lack of business” August 2:City Council adopted Resolution No. 16-084 amending the Policy and Procedures Manual for Administering Deed-Restricted Affordable Housing Units (Below Market Rate (BMR) Manual), with modification, after 4-1 vote 11:At Housing Commission meeting External Counsel presented, including incorrect income calculation. I presented, but was prevented from showing my investigative findings related to COI. There were comments from the public. There was a motion to deny my appeal, which passed after a 3-1 vote 363 Handout presented by Ms Klueck at 11-Aug Housing Commission meeting has math error and bonus error 364 Excerpt from F- Technical Guide for Determining Income.pdf My application included verifiable evidence that: •S Recogn Bonus was one time (2015 only) •Wellness Bonus would not be earned in 2016 •Performance Bonus was sharply decreased in 2016 •Stock value declined precipitously 365 My Company, our main competitor and Nasdaq Composite 2013 –2016 http://www.nasdaq.com/symbol/stx/interactive-chart Demonstrates that larger economic forces are driving the loss in value 366 My latest paystub 367 August, 2016, continued 23:External counsel, Ms Lee, emailed me, inviting me to share my presentations with her, while stating she would not share her findings with me 24:Mr Fu emailed, asking me to forward my presentation 25:Mr Fu emailed saying that my appeal before the City Council would be continued from 6 to 20-Sep 26:I received a letter from Ms Squarcia informing me that my appeal would be heard by the City Council 6-Sep and that any issues not raised before the Council on that date may be inadmissible, if I later bring an action in court 27: I received a second letter from Ms Squarcia informing me that my appeal would be continued to an unknown date 29:I uploaded presentations, audio recordings, letters from City to a Google Drive folder that I shared with Ms Lee and the Mayor and Councilmembers. Ms Lee asked me to invite her via a gmail account, and I complied 31: I emailed the City Clerk expressing utter confusion and asking for guidance on my hearing before the City Council. Ms Schmidt clarified that my appeal would be heard 20- Sep 368 September, 2016 6:I attended City Council meeting at 6:45, where the Council approved postponement of my appeal to 20-Sep 8:I attended Housing Commission meeting at 9am. During the approval of minutes, I attempted to make errors in the draft minutes known. However I was silenced and told I could speak during Oral Communications. This is a violation of my Brown Act rights 54954.3.(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. (b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. (c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law. http://www.leginfo.ca.gov/cgi- bin/displaycode?section=gov&group=54001- 55000&file=54950-54963 369 http://www.hcd.ca.gov/housing-policy-development/housing-resource- center/reports/state/incnote.html 370 Conflict of interest / Due process Although Christine Nguyen told me that a conflict of interest would arise if I were both a volunteer and a client at WVCS… …she nonetheless denied me and then sold the 2- bedroom, moderate unit –while the appeal process was still underway –to her coworker, Michelle Ma, the Director of Client Services at WVCS;a single woman with no dependents This is clearly unacceptable and I am asking YOU, City Council, to take action and reverse this illegal sale 371 Investigative Questions Is Michelle Ma the Director of Client Services at West Valley Community Services? Date of hire –2008, per Ms Lee Date of termination –April 2016, per Ms Lee How many City of Cupertino Below Market Rate units are owned by current West Valley Community Services staff former West Valley Community Services staff current City of Cupertino staff former City of Cupertino staff How many City of Cupertino Below Market Rate units are rented by current West Valley Community Services staff former West Valley Community Services staff current City of Cupertino staff former City of Cupertino staff 372 Questions about sale of APN 369- 55-036 on or around 21-Mar-2016 How many applicants were contacted and invited to complete their applications, including Ms Ma and I? –3, per Ms Lee: Sandstrom, Ma and additional backup? How many applicants submitted complete applications? Did all of the applicants have the same number of priority points? –No, per Ms Lee How many priority points did Ms Ma have? –2, per Ms Lee At the time of application, where was Michelle Ma’s residency? Longevity at that address? At the time of application, where was Marissa Ma’s residency? Longevity at that address? What was Marissa Ma’s income? What was the waitlist priority number of Ms Ma? –23, per Ms Lee 373 City Council has the power to find a transaction fraudulent and overturn it Excerpt from CC Resolution No. 16-084 Adopting Amendments to the Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units 374 Responsibilities of Commissioners (excerpted from COMMISSIONER’S HANDBOOK, 2016, City of Cupertino) D. DISCRIMINATION AND EQUAL PROTECTION All rules, regulations, laws, services and facilities must apply equally to all persons, and not give favor to any segment of the community. Similarly, all laws and ordinances of the city must afford equal protection to all facets of the community, unless the purpose of a city action requires special classification of the community. E. DUE PROCESS All governmental procedures and process must allow an affected party a right to be heard, and to present controverting fact or testimony on the question of right in the matter involved. Unfair determinations, such as bias, predetermination, refusal to hear, etc., may invalidate actions. F. REASONABLENESS Every action of municipal government must be reasonable, or otherwise stated, not capricious, extreme, arbitrary, or abusive. 375 In closing Affordable housing is one of the most valuable things in existence in Cupertino… A valuable BMR unit has been sold in a frankly illegal manner Please restore justice and undo the sale Please reject the recommendation of staff, denying my appeal Please recognize that no speculation is needed to find that I met the income eligibility limit, even assuming performance bonus at same level in 2016 as in 2015 Please do not play a part in continuing the unethical action that has occurred and instead, work to undue this action 376 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1924 Name: Status:Type:Public Hearings Agenda Ready File created:In control:8/17/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Amendment to Title 16, Buildings and Construction, of the Cupertino Municipal Code adopting the California Buildings Standards Code and Fire Code and making local exceptions as mandated by the State of California. Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Ordinance - Chapter 16 Bldg and Fire Code B - Draft - Resolution for Findings and Justification.pdf Action ByDate Action ResultVer. City Council11/1/20161 Subject:AmendmenttoTitle16,BuildingsandConstruction,oftheCupertinoMunicipalCode adoptingtheCaliforniaBuildingsStandardsCodeandFireCodeandmakinglocalexceptions as mandated by the State of California. 1.ConductthefirstreadingofOrdinanceNo.16-2155:an“OrdinanceoftheCityCouncilof theCityofCupertinoAmendingChapters16.02,16.04,16.06,16.16,16,24,16.40,16.54, 16.58,and16.80RepealingChapter16.42ofTitle16oftheCupertinoMunicipalCode adoptingthe2016CaliforniaBuilding,Residential,Electrical,Mechanical,Plumbing, Energy,Historical,Fire,ExistingBuildingCode,GreenBuildingStandardsCodeswith Certain Exceptions, Modifications, and Additions”; and 2.AdoptResolutionNo.16-115makingfactualfindingswithrespecttothelocalgeological, topographical,andclimaticconditionsnecessarytomakelocalamendmentstothe California Building Standards Code. CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™377 1 OFFICE OF THE CITY CLERK CITY HALL 10 300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223 www.cupertino.org CITY COUNCIL STAFF REPORT November 1, 2016 Subject: Amendment to Title 16, Buildings and Construction, of the Cupertino Municipal Code adopting the California Buildings Standards Code and Fire Code and making local exceptions as mandated by the State of California. Recommendation: 1. Conduct the first reading of an “Ordinance of the City Council of the City of Cupertino Amending Chapters 16.02, 16.04, 16.06, 16.16, 16,24, 16.40, 16.54, 16.58, and 16.80 Repealing Chapter 16.42 of Title 16 of the Cupertino Municipal Code adopting the 2016 California Building, Residential, Electrical, Mechanical, Plumbing, Energy, Historical, Fire, Existing Building Code, Green Building Standards Codes with Certain Exceptions, Modifications, and Additions”; 2. Adopt a Resolution making factual findings with respect to the local geological, topographical, and climatic conditions necessary to make local amendments to the California Building Standards Code. Discussion: The Building Standards Commission (BSC) mandates the California Code of Regulations, Title 24, also referred to as the California Building Standards Code be adopted by local jurisdictions. The California Building Standards Code is published in its entirety every three years by order of the California legislature, with supplements published in intervening years. The local Tri- chapter Uniform Code Committee (TUCC) is made up of local Building Officials serving communities in the East Bay (East Bay Chapter), communities along the peninsula from as far north as San Francisco and as far south as Gilroy (Peninsula Chapter) and communities serving the Monterey County area (Monterey Chapter) and takes on the responsibility to review and amend the model codes to enhance regional consistency in application and enforcement of the adopted codes. The committee develops standardized codes, interpretations and local amendments to maintain consistency from one jurisdiction to another. Local Amendments: California’s Health and Safety Code (HSC) requires local jurisdictions to adopt the California Building Standards Code for local enforcement with 180 days after Title-24, California Code of Regulations (C.C.R.) is published. In adopting Title-24 for local enforcement, the jurisdiction 378 2 may amend the standards if such amendments are necessary to address a local geologic, topographic or climatic condition. Cupertino has worked with other local jurisdictions in the Bay Area to ensure consistency among amendments as part of the TUCC. The Local Amendments included in the code adoption package that are recommended to be adopted by City Council are more stringent than the State Codes and are identified in Exhibit A of the “Matrix Table for Justification and Findings for Local Amendments”. The Ordinance amendment achieves the following:  Adopts the 2016 edition of the California Building, Residential, Electrical, Mechanical, Plumbing, Energy, Historical Building, Fire, Existing Building, and Green Building Standards codes by a single ordinance.  Incorporates local Building Code amendments to the California Code of Regulations developed by the Tri-chapter Uniform Code Committee (TUCC).  Incorporates local Fire Code amendments to the California Fire Code developed by the Santa Clara County Fire Marshals Association and endorsed by the Santa Clara County Fire Chiefs Association. These local amendments are discussed in detail below: 1. Amendment Related to Seismic Requirements Some of the amendments include structural provisions of the code that were reviewed and recommended by the TUCC. These proposed amendments are necessary for the protection of the public health, safety and welfare, due to the local climatic, geologic or topographical conditions specified as follows: The Bay Area region is a densely populated area having buildings constructed over and near a vast array of fault systems capable of producing major earthquakes, including but not limited to the recent 1989 Loma Prieta Earthquake. Seismically, Cupertino is situated adjacent to active earthquake faults capable of producing substantial seismic events. The city has the San Andreas and Sargent-Berocal faults running through the lower foothills and the Monta Vista fault system closer to the valley floor area. The Hayward fault is just northeast of the city which would have a major effect upon the City if it were to rupture. Adding to this threat, the number of vehicles driven in Cupertino is steadily increasing with commuters driving to and through the city either to their homes, shopping and/or places of employment. Since the City is divided by major freeways and expressways, the occurrence of a major earthquake would significantly impact the ability of fire crews to respond to emergencies should one or more freeway/expressway bridges collapse or be substantially damaged. 379 3 Building Code Amendments:  Updated Administrative Section 16.02.150 to include 'Work exempt from permit' and Permit application requirements inadvertently left out of last code cycle.  Adopted State Code Administrative code language in 16.02.200 which state general requirements for submittal documents.  Updated Residential Fire Sprinkler requirements including the exemption of Fire sprinkler systems for new Accessory Dwelling Units where the primary residence is not provided with one (Section 16.06.050) to be consistent with the new Government Code requirements (GC Section 65852.2) which will become effective January 1, 2017.  Updated the City's Red, Yellow, and Green Placards used to designate the condition for continued occupancy of buildings and structures to include reference to applicable California Penal Code Sections in Section 16.80.040 Fire Code Amendments: The City of Cupertino experiences low humidity, high winds and warm temperatures during the summer months creating conditions which are particularly conducive to the ignition and spread of grass, brush and structure fires. Fire suppression capabilities will be severely limited should the water system be extensively damaged during the seismic event. The number of vehicles on the road at any given time during the day can play a major role on the response time of emergency services thus greatly increasing the risk to property and life. Additionally, the remoteness and steepness of hillside areas in the City significantly impacts the ability of emergency responders to extinguish or control wildland or structure fires. The local Fire Code amendments to the California Fire Code provided by the John Justice, Santa Clara County Deputy Chief, were developed by the Santa Clara County Fire Marshals Association and endorsed by the Santa Clara County Fire Chiefs Association. The intent is to have consistency in the application of codes related to fire safety. The amendments have been provided to all Cities within the Santa Clara County Fire Department jurisdiction, as well as surrounding County jurisdictions, to be included in their respective code adoption package for consistency of enforcement. One major code amendment added to the Fire Code relates to mobile fueling. The mobile fueling industry has been working with the fire service locally and at the state level. The Santa Clara County Fire Marshals have been involved in these code amendments to allow mobile fueling since the new concept surfaced earlier this year. There has been tremendous pressure to adopt these standards from the mobile fueling industry in several of the cities in our County. 380 4 One major code amendment added to the Fire Code relates to mobile fueling. It adopts Section 5707 of the 2016 California Fire Code to regulate mobile fueling devices. In the past, the City had not had any reason to adopt this section. However, due to new mobile apps that allow on- demand mobile fueling, the Santa Clara County Fire Department has encouraged cities to adopt these State standards. Effective Date of Code Adoption: Last July 1, 2016, the BSC published the 2016 edition of the California Building Standards Code. The 2016 California Building, Residential, Electrical, Mechanical, Plumbing, Energy, Historical Building, Fire, Existing Building, and Green Building Standards Codes as mandated by the State of California will become effective on January 1st, 2017. Because the local amendments to the state adopted codes cannot become effective until after the 30th day of the 2nd reading, staff will need to schedule the 1st and 2nd hearings so that the second hearing will be scheduled on the November 14th Council meeting. Plans submitted after January 1st, 2017, will be required to comply with the new 2016 California Codes along with the local adopted amendments. Potential Additional Amendments for 2017: The League of California Cities provides legislative briefings as an overview of upcoming legislative issues and information regarding new laws for 2017 which will affect all cities. These briefings are designed to help city officials stay up to date and in compliance with the new laws. Because the League of California's City's update for bills effective in 2017 is not available until November, 2016, any legislative amendments required to be included in the ordinance will need to be deferred. A supplemental staff report and ordinance change may be necessary upon review of any additional legislative changes scheduled to be released soon after the publication of this report. Summary of Amendments: The State of California allow local municipalities to modify the state adopted building standards to make them more restrictive (not less), provided certain findings are made that the proposed modifications are necessary due to special local climatic, geological or topographical conditions that can affect the health, welfare and safety of local residents. Pursuant to Health and Safety Code 17958, 18941.5 and 13869, Administrative standards do not require a justification or findings to justify proposed amendments. Building Standards, including Green Building Standards, must be justified on the basis of one or more local climatic, geological or topographical conditions. Justifications following the table of amendments to Title 16 of the Cupertino Municipal Code discuss reasons and justifications for each amendment. Each amendment is identified by the Section number used in the proposed Ordinance. Many of the 381 5 proposed amendments have been renumbered to match the revised format of the International Codes upon which several of the California codes are based. The Building and Fire codes were made available to the public in the City Clerk's office prior to the adoption of this ordinance as required by law. Environmental Review: Exempt, under the provision of the California Environmental Quality Act of 1970, as amended, 14 California Code of Regulations Section 15061(b)(3). _____________________________________ Prepared by: Albert Salvador, Building Official Mike Wayne, Senior Building Inspector Reviewed by: Aarti Shrivastava, Assistant City Manager Approved for Submission by: David Brandt, City Manager Attachments: A. Draft Ordinance amending Title 16 of the Cupertino Municipal Code B. Draft Resolution including Justification and Findings for Local Amendments 382 Council Agenda: November 1, 2016 Page: 1 Revision Date: -- ORDINANCE NO. ____ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTERS 16.02, 16.04, 16.06, 16.16, 16,24, 16.40, 16.54, 16.58, AND 16.80 AND REPEALING CHAPTER 16.42 OF TITLE 16 OF THE CUPERTINO MUNICIPAL CODE ADOPTING THE 2016 CALIFORNIA BUILDING, RESIDENTIAL, ELECTRICAL, MECHANICAL, PLUMBING, ENERGY, HISTORICAL, FIRE, EXISTING BUILDING CODE, GREEN BUILDING STANDARDS CODES WITH CERTAIN EXCEPTIONS, MODIFICATIONS, AND ADDITIONS WHEREAS, pursuant to Sections 17922, 17958, 17958.5, 17958.7, 1758.11, and 18941.5 of the California Health and Safety Code, the City of Cupertino may adopt the provisions of the 2016 California Building Code (Part 2 of Title 24, based on the 2015 International Building Code), the 2016 California Residential Code (Part 2.5 of Title 24 based on the 2015 International Residential Code), the 2016 California Electrical Code (Part 3 of Title 24 based on the 2014 National Electrical Code), The 2016 California Mechanical Code (Part 4 of Title 24 based on the 2015 Uniform Mechanical Code), the 2016 California Plumbing Code (Part 5 of Title 24 based on the 2015 Uniform Plumbing Code), the 2016 California Energy Code (Part 6 of Title 24), the 2016 California Historical Building Code (Part 8 of Title 24), the 2016 California Fire Code (Part 9 of Title 24), the 2016 California Existing Building Code (Part 10 of Title 24 based on the 2015 International Existing Building Code), the 2016 California Green Building Standards Code (Part 11 of Title 24), with certain amendments to those provisions which are reasonably necessary to protect the health, welfare and safety of the citizens of Cupertino because of the local climatic, geological, and topographical conditions; and WHEREAS, over the years, the City Council made factual findings set forth in respective sections of Chapter 16 of the Cupertino Municipal Code relating to the amendments to the California codes; and WHEREAS, the factual findings made then continue to be valid and relate to the amendments made to the California codes in this adoption, and such findings are incorporated by reference; and WHEREAS, in addition to those findings set forth in the provisions of the Cupertino Municipal Code, on November 1, 2016, the City Council adopted a resolution making factual findings with respect to the local geological, topographical, and climate conditions including, but not limited to, the following: 1) The Bay Area region is a densely populated area with buildings constructed over and near a vast array of fault systems capable of producing major earthquakes, including, but not limited to the recent 1989 Loma Prieta Earthquake; 383 Council Agenda: November 1, 2016 Page: 2 Revision Date: -- 2) Cupertino is situated adjacent to active earthquake faults capable of producing substantial seismic events. The San Andreas and Sargent-Berocal faults run through the lower foothills and the Monta Vista Fault is closer to the valley floor area. The Hayward fault is North East of the City which would also presents a risk to Cupertino in the event of an earthquake; 3) Vehicular traffic through Cupertino is significant, and continues to increase as Cupertino is an employment center as well as the location of residential projects; 4) Cupertino is divided by major freeways and expressways, the occurrence of a major earthquake could impact the ability of fire crews to respond to emergencies should one or more of the freeways or expressways collapse, be substantially damaged, or become gridlocked; 5) Fire suppression capabilities would be severely limited should the water system be damaged during an earthquake; 6) Cupertino experiences low humidity, high winds and warm temperatures during the summer months creating conditions which are particularly conducive to the ignition and spread of grass, brush and structural fires; 7) Cupertino’s topography contains remote, steep hillsides which further limits the ability of emergency responders to extinguish or control wildland or structural fires; and 8) The local geographic, topographic and climatic conditions require amendments to the California Codes to establish more restrictive conditions to improve structural integrity of the buildings in the event of a seismic incident and provide other protections to protect against the increased risk of fire. WHEREAS, a copy of all of the Codes to be incorporated by reference into this Ordinance were made available prior to the adoption of this Ordinance as required by law; WHEREAS, this Ordinance was found to be categorically exempt from environmental review per the provisions of the California Environmental Quality Act of 1970, as amended, 14 California Code of Regulations, Section 15061(b)(3); and WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Ordinance; and 384 Council Agenda: November 1, 2016 Page: 3 Revision Date: -- WHEREAS, this Council has reviewed and considered the Statement of Exemption determination under CEQA prior to taking any approval actions on this Ordinance; NOW THEREFORE, THE COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 16.02 of Title 16 of the Cupertino Municipal Code is hereby repealed in its entirety and replaced with the following Chapter 16.02 to be entitled, numbered, and to read as follows: CHAPTER 16.02: ADMINISTRATIVE CODE 16.02.010 Purpose. A. The purpose of this title is to establish the minimum requirements to safeguard to public health, safety and general welfare through structural strength, means of egress facilities, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire and other hazards attributed to the built environment and to provide safety to fire fighters and emergency responders during emergency operations. B. This title provides for the administration and enforcement of the building, residential, plumbing, mechanical, electrical, fire prevention, energy, housing, green building, building conservation and historical codes adopted by the City of Cupertino. 16.02.020 Definitions. For the purposes of this chapter the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory. A. “Building” means any structure used or intended for supporting or sheltering any use or occupancy. A structure containing less than one hundred and twenty (120) square feet of floor space shall not fall within this definition; B. “Building Official” means the Chief Building Official for the City of Cupertino or designee; C. “City” means the City of Cupertino; 385 Council Agenda: November 1, 2016 Page: 4 Revision Date: -- D. “Person” means any person, firm, partnership, association, corporation, company or organization of any kind. 16.02.030 Scope. The provisions of this title shall apply to the construction, alteration, relocation, enlargement, replacement, repair, use and occupancy and demolition of every building, structure and building services equipment of every building or structure within the city. Where there is a conflict between a general requirement and a specific requirement, the specific requirement shall be applicable. Where, in any specific case, different sections of this code specify different materials, methods of construction or other requirements, the most restrictive shall govern. 16.02.040 General. Adopt Section [A] 104.1 of the 2016 California Building Code as follows: [A] 104.1 General. The Building Official is hereby authorized and directed to enforce the provisions of this title. The Building Official shall have the authority to render interpretations of the codes identified in this title and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in compliance with the intent and purpose for each code. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in the code. 16.02.050 Applications and permits. Adopt Section [A] 104.2 of the 2016 California Building Code as follows: [A] 104.2 Applications and permits. The Building Official shall receive applications, review construction documents and issue permits for the erection, and alteration, demolition and moving of buildings and structures, inspect the premises for which such permits have been issued and enforce compliance with the provisions of this code. [A] 104.2.1 Determination of substantially improved or substantially damaged existing building and structures in flood hazard areas. For application for 386 Council Agenda: November 1, 2016 Page: 5 Revision Date: -- reconstruction, rehabilitation, repair, alteration, addition or other improvement of existing buildings or structures located in flood hazard areas, the building official shall determine the proposed work constitutes substantial improvement or repair of substantial damage. Where the building official determines that the proposed work constitutes substantial improvement or repair of substantial damage, and where required by this code, the building official shall require the building to meet the requirements of Section 1612. 16.02.060 Notices and orders. Adopt Section [A] 104.3 of the 2016 California Building Code as follows: [A] 104.3 Notices and orders. The Building Official shall issue all necessary notices or orders to ensure compliance with this code. 16.02.070 Inspections. Adopt Section [A] 104.4 of the 2016 California Building Code as follows: [A] 104.4 Inspections. The Building Official shall make all of the required inspections, or the Building Official shall have the authority to accept reports of inspection by approved agencies or individuals. Reports of such inspections shall be in writing and be certified by a responsible officer of such approved agency or by the responsible individual. The Building Official is authorized to engage such expert opinion as deemed necessary to report upon unusual technical issues that arise, subject to the approval of the appointing authority. 16.02.080 Identification. Adopt Section [A] 104.5 of the 2016 California Building Code as follows: [A] 104.5 Identification. The Building Official shall carry proper identification when inspecting structures or premises in the performance of duties under this code. 16.02.090 Right of Entry. Adopt Section [A] 104.6 of the 2016 California Building Code as follows: 387 Council Agenda: November 1, 2016 Page: 6 Revision Date: -- [A] 104.6 Right of entry. Where it is necessary to make an inspection to enforce the provisions of this code, or where the Building Official has reasonable cause to believe that there exists in a structure or upon a premises a condition which is contrary to or in violation of this code which makes the structure or premises unsafe, dangerous or hazardous, the Building Official is authorized to enter the structure or premises at reasonable times to inspect or to perform the duties imposed by this code, provided that if such structure or premises be occupied that credentials be presented to the occupant and entry requested. If such structure or premises is unoccupied, the Building Official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the Building Official shall have recourse to the remedies provided by law to secure entry. 16.02.100 Department records. Adopt Section [A] 104.7 of the 2016 California Building Code as follows: [A] 104.7 Department records. The Building Official shall keep official records of applications received, permits and certificates issued, fees collected, reports of inspections, and notices and orders issued. Such records shall be retained in the official records for the period required for retention of public records. 16.02.110 Liability. Amend Section [A] 104.8 of the 2016 California Building Code as follows: [A] 104.8 Liability. The Building Official, member of the board of appeals or employee charged with the enforcement of this code, while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by this code or other pertinent law or ordinance, shall not thereby be rendered liable personally and is hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or by reason of an act or omission in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by that officer or employee in the lawful discharge of duties and under the provisions of this code shall be defended by legal representative of the jurisdiction until the final termination of the proceedings. The Building Official or any subordinate shall not be liable for cost in any action, suit or proceeding that is instituted in pursuance of the provisions of this code. 388 Council Agenda: November 1, 2016 Page: 7 Revision Date: -- 16.02.120 Approved materials and equipment. Adopt Section [A] 104.9 of the 2016 California Building Code as follows: [A] 104.9 Approved materials and equipment. Materials, equipment and devices approved by the Building Official shall be constructed and installed in accordance with such approval. [A] 104.9.1 Used materials and equipment. The use of used materials which meet the requirements of this code for new materials is permitted. Used equipment and devices shall not be reused unless approved by the Building Official. 16.02.130 Modifications. Adopt Section [A] 104.10 of the 2016 California Building Code as follows: [A] 104.10 Modifications. Wherever there are practical difficulties involved in carrying out the provisions of this code, the Building Official shall have the authority to grant modifications for individual cases, upon application of the owner or owner’s representative, provided the Building Official shall first find that special individual reason makes the strict letter of this code impractical and the modification is in compliance with the intent and purpose of this code and that such modification does not lessen health, accessibility, life and fire safety, or structural requirements. The details of action granting modifications shall be recorded and entered in the files of the department of building safety. 16.02.140 Alternate materials, design and methods of construction and equipment. Amend Section [A] 104.11 of the 2016 California Building Code as follows: [A] 104.11 Alternative materials, design and methods of construction and equipment. The provisions of this code are not intended to prevent the installation of any material or to prohibit any design or method of construction not specifically prescribed by this code, provided that any such alternative has been approved. An alternative material, design or method of construction shall be approved where the Building Official finds that the proposed design is satisfactory and complies with the intent of the provisions of this code, and that the material, method or work offered is, for the purpose intended, at least the equivalent of that 389 Council Agenda: November 1, 2016 Page: 8 Revision Date: -- prescribed in this code in quality, strength, effectiveness, fire resistance, durability and safety. [A] 104.11.1 Research reports. Supporting data, where necessary to assist in the approval of materials or assemblies not specifically provided for in this code, shall consist of valid research reports from approved sources. 16.02.150 Permit Required. Adopt Section [A] 105.1 of the 2016 California Building Code as follows: [A] 105.1 Required. Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by the California Code of Regulations, or to cause any such work to be done, shall first make application to the Building Official and obtain the required permit. Adopt Section [A] 105.2 of the 2016 California Building Code as follows: [A] 105.2 Work exempt from permit. Exemptions from permit requirement of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction. Permits shall not be required for the following: Building: 1. One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area is not greater than 120 square feet (11 m2). 2. Fences not over 7 feet (2134 mm) high. 3. Oil derricks. 4. Retaining walls that are not over 4 feet (1219 mm) in height measured from the bottom of the footing to the top of the wall, unless supporting a surcharge or impounding Class I, II or IIIA liquids. 5. Water tanks supported directly on grade if the capacity is not greater than 5,000 gallons (18,925 L) and the ratio of height to diameter or width is not greater than 2:1. 6. Sidewalks and driveways not more than 30 inches (762 mm) above adjacent grade, and not over any basement or story below and are not part of an accessible route. 7. Painting, papering, tiling, carpeting, cabinets, counter tops and similar finish work. 8. Temporary motion picture, television and theater stage sets and scenery. 390 Council Agenda: November 1, 2016 Page: 9 Revision Date: -- 9. Prefabricated swimming pools accessory to a group R-3 occupancy that are less than 24 inches (610 mm) deep, are not greater than 5,000 gallons (18,925 L) and are installed entirely about ground. 10. Shade cloth structures constructed for nursery or agricultural purposes, not including service systems. 11. Swing and other playground equipment accessory to detached one- and two-family dwellings. 12. Window awnings in Group R-3 and U occupancies, supported by an exterior wall that do not project more than 54 inches (1372 mm) from the exterior wall and do not require additional support. 13. Nonfixed and movable fixtures, cases, racks, counters and partitions not over 5 feet 9 inches (1753 mm) in height. Electrical: Repairs and maintenance: Minor repair work, including the replacement of lamps or the connection of approved portable electrical equipment to approved permanently installed receptacles. Radio and television transmitting stations: The provisions of this code shall not apply to electrical equipment used for radio and television transmissions, but do apply to equipment and wiring for a power supply and the installation of towers and antennas. Temporary testing systems: A permit shall not be required for the installations of any temporary system required for the testing or servicing of electrical equipment or apparatus. Gas: 1. Portable heating appliance. 2. Replacement of any minor part that does not alter approval of equipment or make such equipment unsafe. Mechanical: 1. Portable heating appliance. 2. Portable ventilation equipment. 3. Portable cooling unit. 4. Steam, hot or chilled water piping within any heating or cooling equipment regulated by this code. 5. Replacement of any part that does not alter its approval or make it unsafe. 6. Portable evaporative cooler. 7. Self-contained refrigeration system containing 10 pounds (4.54 kg) or less of refrigerant and actuated by motors of 1 horsepower (0.75 kW) or less. 391 Council Agenda: November 1, 2016 Page: 10 Revision Date: -- Plumbing: 1. The stopping of leaks in drains, water, soil, waste or vent pipe, provided, however, that if any concealed trap, drain pipe, water, soil, waste or vent pipe becomes defective and it becomes necessary to remove and replace the same with new material, such work shall be considered as new work and a permit shall be obtained and inspection made as provided in this code. 2. The clearing of stoppages or the repairing of leaks in pipes, valves or fixtures and the removal and reinstallation of water closets, provided such repairs do not involve or require the replacement or rearrangement of valves, pipes or fixtures. [A] 105.2.1 Emergency repairs. Where equipment replacements and repairs must be performed in an emergency situation, the permit application shall be submitted within the next working business day to the building official. Amend Section [A] 105.3 of the 2016 California Building Code as follows: [A] 105.3 Application for permit. To obtain a permit, the applicant shall first file an application therefor in writing on a form furnished by the City for that purpose. Such application shall: 1. Identify and describe the work to be covered by the permit for which application is made. 2. Describe the land on which the proposed work is to be done by legal description, street address or similar description that will readily identify and definitely locate the proposed building or work. 3. Indicate the use and occupancy for which the proposed work is intended. 4. Be accompanied by construction documents and other information as required in Section 107. 5. State the valuation of the proposed work. 6. Be signed by the applicant, or the applicant's authorized agent. 7. Give such other data and information as required by the building official. Adopt Section [A] 105.3.2 of the 2016 California Building Code as follows: [A] 105.3.2 Time limitation of application. An application for a permit for any proposed work shall be deemed to have been abandoned 180 days after the date of filing, unless such application has been pursued in good faith or a permit has been issued; except that the Building Official is authorized to grant one or more extensions of time for additional periods 392 Council Agenda: November 1, 2016 Page: 11 Revision Date: -- not exceeding 90 days each. The extension shall be requested in writing and justifiable cause demonstrated. Adopt Section [A] 105.4 of the 2016 California Building Code as follows: [A] 105.4 Validity of permit. The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other ordinance of the jurisdiction. Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. The issuance of a permit based on construction documents and other data shall not prevent the Building Official from requiring the correction of errors in the construction documents and other data. The Building Official is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other ordinances of this jurisdiction. Adopt Section [A] 105.5 of the 2016 California Building Code as follows: [A] 105.5 Expiration. Every permit issued shall become invalid unless the work on the site authorized by such permit is commenced within 180 days after its issuance, or if the work authorized on the site by such permit is suspended or abandoned for a period of 180 days after the time the work is commenced. The Building Official is authorized to grant, in writing, one or more extensions of time, for periods not more than 180 days each. The extension shall be requested in writing and justifiable cause demonstrated. Adopt Section [A] 105.6 of the 2016 California Building Code as follows: [A] 105.6 Suspension or revocation. The Building Official is authorized to suspend or revoke a permit issued under the provisions of this code wherever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or regulation or any of the provisions of this code. Adopt Section [A] 105.7 of the 2016 California Building Code as follows: [A] 105.7 Placement of permit. The building permit or copy shall be kept on the site of the work until the completion of the project. 393 Council Agenda: November 1, 2016 Page: 12 Revision Date: -- 16.02.200 Submittal Documents. [A] 107.1 General. Submittal documents consisting of construction documents, statement of special inspections, geotechnical report and other data shall be submitted in two or more sets with each permit application. The construction document shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed. Where special conditions exist, the building official is authorized to require additional construction documents to be prepared by a registered design professional. Exception: The building official is authorized to waive the submission of construction documents and other data not required to be prepared by a registered design professional if it is found that the nature of the work applied for is such that the review of construction documents is not necessary to obtain compliance with this code. [A] 107.2 Construction documents. Construction documents shall be in accordance with Sections 107.2.1 through 107.2.6. [A] 107.2.1 Information on construction documents. Construction documents shall be dimensioned and drawn upon suitable material. Electronic media documents are permitted to be submitted when approved by the building official. Construction documents shall be of sufficient clarity to indicate the location, nature and extent of the work proposed and show in detail that it will conform to the provisions of this code and relevant laws, ordinances, rules and regulations, as determined by the building official. [A] 107.2.2 Fire protection system shop drawings. Shop drawings for the fire protection system(s) shall be submitted to the Fire Department to indicate conformance to this code and the construction documents and shall be approved prior to the start of system installation unless prior approval is granted by the fire code official. Shop drawings shall contain all information as required by the referenced installation standards in Chapter 9. [A] 107.2.3 Means of egress. The construction documents shall show in sufficient detail the location, construction, size and character of all portions of the means of egress including the path of the exit discharge to the public way in compliance with the provisions of this code. In other than occupancies in Groups R-2, R-3, and I-1, the construction documents shall designate the number of occupants to be accommodated on every floor, and in all rooms and spaces. [A] 107.2.4 Exterior wall envelope. Construction documents for all buildings shall describe the exterior wall envelope in sufficient detail to determine compliance with this code. The construction documents shall provide details of the exterior wall envelope as 394 Council Agenda: November 1, 2016 Page: 13 Revision Date: -- required, including flashing, intersections with dissimilar materials, corners, end details, control joints, intersections at roof, eaves or parapets, means of drainage, water-resistive membrane and details around openings. The construction documents shall include manufacturer's installation instructions that provide supporting documentation that the proposed penetration and opening details described in the construction documents maintain the weather resistance of the exterior wall envelope. The supporting documentation shall fully describe the exterior wall system which was tested, where applicable, as well as the test procedure used. [A] 107.2.5 Site plan. The construction documents submitted with the application for permit shall be accompanied by a site plan showing to scale the size and location of new construction and existing structures on the site, distances from lot lines, the established street grades and the proposed finished grades and, as applicable, flood hazard areas, floodways, and design flood elevations; and it shall be drawn in accordance with an accurate boundary line survey. In the case of demolition, the site plan shall show construction to be demolished and the location and size of existing structures and construction that are to remain on the site or plot. The building official is authorized to waive or modify the requirements for a site plan when the application for permit is for alteration or repair or when otherwise warranted. [A] 107.2.5.1 Design flood elevations. Where design flood elevations are not specified, they shall be established in accordance with Section 1612.3.1. [A] 107.2.6 Structural information. The construction documents shall provide the information specified in Section 1603. [A] 107.3 Examination of documents. The building official shall examine or cause to be examined the accompanying submittal documents and shall ascertain by such examinations whether the construction indicated and described is in accordance with the requirements of this code and other pertinent laws or ordinances. [A] 107.3.1 Approval of construction documents. When the building official issues a permit, the construction documents shall be approved, in writing or by stamp, as "Reviewed for Code Compliance". It shall be the responsibility of the owner or owner's representative to obtain a hard-copy of the approved plans and documents which shall be kept at the site of work and shall be open to inspection by the building official or a duly authorized representative. [A] 107.3.2 Previous approvals. This code shall not require changes in the construction documents, construction or designated occupancy of a structure for which a lawful permit 395 Council Agenda: November 1, 2016 Page: 14 Revision Date: -- has been heretofore issued or otherwise lawfully authorized, and the construction of which has been pursued in good faith within 180 days after the effective date of this code and has not been abandoned. [A] 107.3.3 Phased approval. The building official is authorized to issue a permit for the construction of foundations or any other part of a building or structure before the construction documents for the whole building or structure have been submitted, provided that adequate information and detailed statements have been filed complying with pertinent requirements of this code. The holder of such permit for the foundation or other parts of a building or structure shall proceed at the holder's own risk with the building operation and without assurance that a permit for the entire structure will be granted. [A] 107.3.4 Design professional in responsible charge. Where it is required that documents be prepared by a registered design professional, the building official shall be authorized to require the owner or the owner's authorized agent to engage and designate on the building permit application a registered design professional who shall act as the registered design professional in responsible charge. If the circumstances require, the owner or the owner's authorized agent shall designate a substitute registered design professional in responsible charge who shall perform the duties required of the original registered design professional in responsible charge. The building official shall be notified in writing by the owner or the owner's authorized agent if the registered design professional in responsible charge is changed or is unable to continue to perform the duties. The registered design professional in responsible charge shall be responsible for reviewing and coordinating submittal documents prepared by others, including phased and deferred submittal items, for compatibility with the design of the building. [A] 107.3.4.1 Deferred submittals. Deferral of any submittal items shall have the prior approval of the building official. The registered design professional in responsible charge shall list the deferred submittals on the construction documents for review by the building official. Documents for deferred submittal items shall be submitted to the registered design professional in responsible charge who shall review them and forward them to the building official with a notation indicating that the deferred submittal documents have been reviewed and found to be in general conformance to the design of the building. The deferred submittal items shall not be installed until the deferred submittal document have been approved by the building official. 396 Council Agenda: November 1, 2016 Page: 15 Revision Date: -- [A] 107.4 Amended construction documents. Work shall be installed in accordance with the approved construction documents, and any changes made during construction that are not in compliance with the approved construction shall be submitted for approval as an amended set of construction documents. [A] 107.5 Retention of construction documents. One set of approved construction documents shall be retained by the building official for a period of not less than required by the approved City's document retention plan. 16.02.240 Responsibility of permittee. Responsibility of permittee. Building permits shall be presumed to incorporate the provision that the applicant, the applicant’s agent, employees or contractors shall carry out the proposed work in accordance with the approved plans and with all requirements of this code and any other laws or regulations applicable thereto, whether specified or not. No approval shall relieve or exonerate any person from the responsibility of complying with the provisions and intent of this code. 16.02.250 Fees. Fees shall be paid to the city as set forth in the latest resolution adopted by the city. 16.02.260 Inspections. Adopt Section [A] 110.1 of the 2016 California Building Code as follows: [A] 110.1 General. Construction or work for which a permit is required shall be subject to inspection by the Building Official and such construction or work shall remain accessible and exposed for inspection purposes until approved. Approval as a result of an inspection shall not be construed to be an approval of a violation of the provisions of any of the codes or amendments specified in this title. It shall be the duty of the permit applicant to cause the work to remain accessible and exposed for inspection purposes. Neither the Building Official nor the City of Cupertino shall be liable for expense entailed in the removal or replacement of any material required to allow inspections. Adopt Section [A] 110.2 of the 2016 California Building Code as follows: 397 Council Agenda: November 1, 2016 Page: 16 Revision Date: -- [A] 110.2 Preliminary inspection. Before issuing a permit, the Building Official is authorized to examine or cause to be examined buildings, structures and sites for which an application has been filed. Amend Section [A] 110.3 of the 2016 California Building Code as follows: [A] 110.3 Required inspections. The Building Official, upon notification, shall make the inspections set forth in Section 110.3.1 through 110.3.10. [A] 110.3.1 Footing and foundation inspection. Footing and foundation inspection shall be made after excavations for footings are complete any required reinforcing steel is in place. For concrete foundations, any required forms shall be in place prior to inspection. Material for the foundation shall be on the job, except where concrete is ready mixed in accordance with ASTM C94, the concrete need not be on the job. An engineering survey and/or pad certification may be required by the Building Official prior to the approval of the foundation inspection. [A] 110.3.2 Concrete slab and under-floor inspection. Concrete slab and under-floor inspections shall be made after in-slab or under-floor reinforcing steel and building service equipment, conduit, piping accessories and other ancillary equipment items are in place, but before any concrete is placed or floor sheathing installed, including the subfloor. [A] 110.3.3 Lowest floor elevation. In flood hazard areas, upon placement of the lowest floor, including the basement, and prior to further vertical construction, the elevation certification required in Section 1612.5 shall be submitted to the building official. [A] 110.3.4 Frame inspection. Framing inspection shall be made after the roof deck or sheathing, all framing, fire-blocking and bracing are in place and pipes, chimneys and vents to be concealed are complete and the rough electrical, plumbing, heating wires, pipes and ducts are approved. [A] 110.3.4.1 Moisture content verification. Moisture content of framing members shall be verified in accordance with the California Green Building Standards Code (CALGreen), Chapter 4, Division 4.5. [A] 110.3.5 Lath, gypsum board and gypsum panel product inspection. Lath, gypsum board and gypsum panel product, interior and exterior, are in place, but before any plastering is applied or gypsum board and gypsum panel product joints and fasteners are taped and finished. 398 Council Agenda: November 1, 2016 Page: 17 Revision Date: -- Exception: Gypsum board and gypsum panel products that are not part of a fire- resistance-rated assembly or a shear assembly. [A] 110.3.6 Fire- and smoke-resistant penetrations. Protection of joints and penetrations in fire-resistance-rated assemblies, smoke barriers and smoke partitions shall not be concealed from view until inspected and approved. [A] 110.3.7 Energy efficiency inspections. Inspections shall be made to determine compliance with Chapter 13 and shall include, but not be limited to, inspection for: envelope insulation R- and U-values, fenestration U-value, duct system R-value, and HVAC and water-heating equipment efficiency. [A] 110.3.8 Other Inspections. In addition to the inspections specified in Sections 110.3.1 through 110.3.7, the Building Official is authorized to make or require any other inspections of any construction work to ascertain compliance with the provisions of this code and other laws that are enforced by the Building Department. For the purpose of determining compliance, the Building Official may cause any structure to be reinspected. If any inspection is made at the request of any individual, property owner or lending institution, a fee equal to the cost of making such inspection shall be charged as set forth in the latest resolution adopted by the city. [A] 110.3.9 Special inspections. For special inspections, see Chapter 17. [A] 110.3.10 Final inspection. The final inspection shall be made after all work required by the building permit is completed. All surveys, pad certifications, engineering certifications, structural observation reports, special inspection reports, and any other documentation related to each of the required inspections as required by the Building Official shall be reviewed and approved by the City prior to the approval of each inspection unless approval is granted by the Building Official to allow required documentation to be reviewed and approved prior to final inspection. [A] 110.3.10.1 Flood hazard documentation. If located in a flood hazard area, documentation of the elevation of the lowest floor as required in Section 1612.5 shall be submitted to the building official prior to the final inspection. 110.3.10.2 Operation and maintenance manual. At the time of final inspection, an electronic copy of the operation and maintenance manual acceptable to the enforcing 399 Council Agenda: November 1, 2016 Page: 18 Revision Date: -- agency shall be placed in the building in accordance with the California Green Building Standards Code (CALGreen), Chapter 4, Division 4.4. [A] 110.4 Inspection agencies. The building official is authorized to accept reports of approved inspection agencies, provided such agencies satisfy the requirements as to qualifications and reliability. [A] 110.5 Inspection requests. It shall be the duty of the holder of the building permit or their duly authorized agent to notify the building official when work is ready for inspection. It shall be the duty of the permit holder to provide access to and means for inspection of such work that are required by this code. [A] 110.6 Approval required. Work shall not be done beyond the point indicated in each successive inspection without first obtaining the approval of the building official. The building official, upon notification, shall make the requested inspections and shall either indicate the portion of the construction that is satisfactory as completed, or notify the permit holder or his or her agent wherein the same fails to comply with this code. Any portions that do not comply shall be corrected and such portion shall not be covered or concealed until authorized by the building official 16.02.270 Certificate of Occupancy. Adopt Section [A] 111.1 of the 2016 California Building Code as follows: [A] 111.1 Use and occupancy. No building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made, until the Building Official has issued a certificate of occupancy therefor as provided herein. Issuance of a certificate of occupancy shall not be construed as an approval of a violation of any provision of this code or any ordinance of the City of Cupertino. Adopt Section [A] 111.2 of the 2016 California Building Code as follows: [A] 111.2 Certificate issued. After the Building Official inspects the building or structure and finds no violations of the provisions of this code or other laws that are enforced by the Building Department, the Building Official may issue a certificate of occupancy that contains the following: 1. The building permit number. 2. The address of the building or structure. 400 Council Agenda: November 1, 2016 Page: 19 Revision Date: -- 3. The name and address of the owner. 4. A description of that portion of the structure for which the certificate is issued. 5. A statement that the described portion of the structure has been inspected for compliance with the requirements of this code for the occupancy and division of occupancy and the use for which the proposed occupancy is classified. 6. The name of the Building Official. 7. The edition of the code under which the permit was issued. 8. The use and occupancy, in accordance with the provision of Chapter 3 of the California Building Code. 9. The type of construction as defined in Chapter 6 of the California Building Code. 10. The design occupant load. 11. If the automatic sprinkler system is provided, whether the sprinkler system is required. 12. Any special stipulations and conditions of the building permit. Adopt Section [A] 111.3 of the 2016 California Building Code as follows: [A] 111.3 Temporary occupancy. The Building Official is authorized to issue a temporary certificate of occupancy before the completion of the entire work covered by the permit, provided that such portion of portions shall be occupied safely. The Building Official shall set a time period during which the temporary certificate of occupancy is valid. Adopt Section [A] 111.4 of the 2016 California Building Code as follows: [A] 111.4 Revocation. The Building Official is authorized to, in writing, suspend or revoke a certificate of occupancy or completion issued under the provisions of the California Building Code wherever the certificate is issued in error, or on the basis of incorrect information supplied, or where it is determined that the building or structure or portion thereof is in violation of any ordinance or regulation or any of the provisions of the California Building Code. 16.02.280 Board of Appeals. Adopt Section [A] 113.1 of the 2016 California Building Code and amend to read as follows: [A] 113.1 General. In order to hear and decide appeals of orders, decisions or determinations made by the Building Official relative to application and interpretation of the codes identified in this Title, there shall be and is hereby created a Board of Appeals 401 Council Agenda: November 1, 2016 Page: 20 Revision Date: -- consisting of five members who are qualified by experience and training to pass upon matters pertaining to building construction installations and materials. The Board of Appeals shall be appointed by the Mayor, subject to the approval of the City Council. The Board shall adopt reasonable rules and regulations for conducting its investigations and shall render all decisions and findings in writing to the Building Official, with a duplicate copy to the appellant, and may recommend to the City Council such new legislation as is consistent therewith. To the extent permitted by law, the same personnel of the Board of Appeals appointed under this code may act as the Board of Appeals under this Title. In the event where no such Board of Appeals has been established, the City Council shall serve as said Appeals Board. Add Section [A] 113.1.1 to read as follows: [A] 113.1.1 Access Compliance. Per Health and Safety Code 19955 – 19959.5, in order to hear and decide appeals of orders, decisions or determinations made by the Building Official relative to Access Compliance, there shall be and is hereby created a Board of Appeals consisting of five members to hear written appeals brought by any person regarding action taken by the Building Department. Two members of Accessibility Board of Appeals shall be physically handicapped persons, two members shall be persons experienced in construction, and one member shall be a public member. The Accessibility Board of Appeals shall be appointed by the Mayor, subject to the approval of the City Council. The Accessibility Board of Appeals shall adopt reasonable rules and regulations for conducting its investigations and shall render all decisions and findings in writing to the Building Official, with a duplicate copy to the appellant, and may recommend to the City Council such new legislation as is consistent therewith. In the event where no such Board of Appeals has been established, the City Council shall serve as said Appeals Board. 16.02.290 Violations. Adopt Section [A] 114.1 of the 2016 California Building Code as follows: [A] 114.1 Unlawful acts. It shall be unlawful for any person, firm or corporation to erect, construct, alter, extend, repair, move, remove, demolish or occupancy any building, structure or equipment regulated by the codes identified in this title, or cause same to be done, in conflict with or in violation of any of the provisions of any code identified in this title. Adopt Section [A] 114.2 of the 2016 California Building Code as follows: 402 Council Agenda: November 1, 2016 Page: 21 Revision Date: -- [A] 114.2 Notice of violation. The Building Official is authorized to serve a notice of violation or order on the person responsible for the erection, construction, alteration, extension, repair, moving, removal, demolition or occupancy of a building or structure in violation of any provisions of any code identified in this title, or in violation of a permit or certificate issued under the provisions of any code identified in this title. Such order shall direct the discontinuance of the illegal action or condition and the abatement of the violation. 16.02.300 Stop Work Order. Adopt Section [A] 115.1 of the 2016 California Building Code as follows: [A] 115.1 Authority. Whenever the Building Official finds any work regulated by this code being performed in a manner either contrary to the provisions of any code identified in this title or dangerous or unsafe, the Building Official is authorized to issue a stop work order. Adopt Section [A] 115.2 of the 2016 California Building Code as follows: [A] 115.2 Issuance. The stop work order shall be in writing and shall be given to the owner of the property involved, or to the owner’s agent, or to the person doing the work. Upon issuance of a stop work order, the cited work shall immediately cease. The stop work order shall state the reason for the order, and the conditions under which the cited work will be permitted to resume. SECTION 2. Chapter 16.04 of Title 16 of the Cupertino Municipal is hereby repealed in its entirety and replaced with the following Chapter 16.04 to be entitled, numbered, and to read as follows: CHAPTER 16.04: BUILDING CODE 16.04.010 Code Adoption. A. The provisions of the 2016 California Building Code, Volumes 1 and 2 inclusive, and Appendices which follow and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. 403 Council Agenda: November 1, 2016 Page: 22 Revision Date: -- B. One (1) copy of each volume of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. 16.04.015 Adoption of Appendix Chapters. The following Appendix Chapters from the 2016 California Building Code are hereby adopted. Appendix C: Group U – Agricultural Buildings; Appendix F: Rodentproofing; Appendix G: Flood-Resistant Construction; Appendix I: Patio Covers; California Code Part 8: 2016 California Historical Building Code; California Code Part 10: 2016 California Existing Building Code; California Code Part 12: 2016 California Referenced Standards Code 16.04.050 Address Identification. Adopt Section 501.2 of the 2016 California Building Code and amend to read as follows: New and existing buildings shall be provided with approved address numbers or letters. Each character shall be not less than 4 inches in height and not less than 0.5 inch in width. They shall be installed on a contrasting background and be plainly visible from the street or road fronting the property. When required by the fire code official, address numbers shall be provided in additional approved locations to facilitate emergency response. Where access is by means of a private road and the building address cannot be viewed from the public way, a monument, pole or other approved sign or means shall be used to identify the structure. Address numbers shall be maintained. No Certificate of Occupancy or final building approval for new construction or alterations shall be granted until the building or residence has a street address number posted. Subdivisions and Planned Developments shall submit a numbering schedule for approval by the Building Department and the Fire Department. All commercial buildings having a single address assigned with multi-suite arrangements shall have the suite- numbering system approved or assigned by the Building Department with an approved copy to the Fire Department for emergency use. 404 Council Agenda: November 1, 2016 Page: 23 Revision Date: -- 16.04.070 Exterior Wildfire Exposure. Amend Section 707A.9 of the 2016 California Building Code to read as follows: 707A.9 Underside of appendages. The underside of overhanging appendages shall be enclosed to grade in accordance with the requirements of this chapter or the underside of the exposed underfloor shall consist of one of the following: 1. Noncombustible material. 2. Ignition-resistant material. 3. One layer of 5/8-inch Type X gypsum sheathing applied behind an exterior covering on the underside of the floor projection. 4. The exterior portion of a 1-hour fire resistive exterior wall assembly applied to the underside of the floor including assemblies using the gypsum panel and sheathing products listed in the Gypsum Association Fire Resistance Design Manual. 5. The underside of a floor assembly that meets the performance criteria in accordance with the test procedures set forth in the SFM Standard 12-7A-3 or ASTM E2957. Exception: Heavy timber structural columns and beams do not require protection. Amend Section 710A.4 of the 2016 California Building Code to read as follows: 710A.4 Requirements. Accessory structures shall be constructed on noncombustible or ignition-resistant materials. 16.04.080 Roof Covering Classification. Amend Section 1505.1.3 of the 2016 California Building Code to read as follows: 1505.1.3 Roof coverings in all other areas. The entire roof covering of every existing structure where more than 50 percent of the total roof area is replaced within any one-year period, the entire roof covering of every new structure, and any roof covering applied in the alteration, repair or replacement of the roof of every existing structure, shall be a fire- retardant roof covering that is at least Class A. Amend Section 1505.1.4 of the 2016 California Building Code to read as follows: 405 Council Agenda: November 1, 2016 Page: 24 Revision Date: -- 1505.1.4 Roofing requirements in a Wildland-Urban Interface Fire Area. The entire roof covering of every existing structure where more than 50 percent of the total roof area is replaced within any one-year period, the entire roof covering of every new structure, and any roof covering applied in the alteration, repair or replacement of the roof of every existing structure, shall be a fire-retardant roof covering that is at least Class A. Roofing requirement for structures located in a Wildland-Urban Interface Fire Area shall also comply with Section 705A. 16.04.200 Concrete Isolated Footings. Amend Section 1705.3 Exception #1 of the 2016 CBC to read as follows: 1705.3 Concrete Construction. The special inspections and verifications for concrete construction shall be as required by this section and Table 1705.3. Exception: Special inspections shall not be required for: 1. Isolated spread concrete footings of buildings three stories or less above grade plane that are fully supported on earth or rock, where the structural design of the footing is based on a specified compressive strength, f’c, no greater than 2,500 pound per square inch (psi) (17.2 Mpa). 16.04.210 Revise Section 1905.1.7 ACI 318, Section 14.1.4 Delete Section 1905.1.7 and ACI 318 Section 14.1.4 and replace with the following: 1905.1.7 ACI 318, Section 14.1.4. 14.1.4 - Plain concrete in structures assigned to Seismic Design Category C, D, E or F. 14.1.4.1- Structures assigned to Seismic Design Category C, D, E or F shall not have elements of structural plain concrete, except as follows: (a) Isolated footings of plain concrete supporting pedestals or columns are permitted, provided the projection of the footing beyond the face of the supported member does not exceed the footing thickness. 406 Council Agenda: November 1, 2016 Page: 25 Revision Date: -- Exception: In detached one and two-family dwelling three stories or less in height, the projection of the footing beyond the face of the supported member is permitted to exceed the footing thickness. (b) Plain concrete footing supporting walls are permitted, provided the footings have at least two continuous longitudinal reinforcing bars. Bars shall not be smaller than No. 4 and shall have a total area of not less than 0.002 times the gross cross-sectional area of the footing. A minimum of one bar shall be provided at the top and bottom of the footing. Continuity of reinforcement shall be provided at corners and intersections. Exception: In detached one and two-family dwellings three stores or less in height and constructed with stud bearing walls, plain concrete footings with at least two continuous longitudinal reinforcing bars not smaller than No. 4 are permitted to have a total area of less than 0.002 times the gross cross –sectional area of the footing. 16.04.400 Swimming Pools. Adopt Section 3109 of the 2016 California Building Code. Inspections for Swimming Pools. A. All Work to Be Inspected. All pool installations or alterations thereto including equipment, piping and appliances related thereto shall be inspected by the Building Department to insure compliance with the requirements of the California Building Code. B. Called Inspections. It shall be the duty of the person doing the work authorized by the building permit to notify the Building Department that said work is ready for inspection. Such notification shall be given not less than twenty-four hours before the work is to be inspected. 1. Pregunite inspection is required when all steel is in place, piping from the pool area is in with pressure test, all steel and related attachments are properly bonded and underwater light housing is installed; 2. An inspection is required for all conduit and gas piping under slabs before decks are poured; 3. Final inspection is required after all equipment is in place and operating, the pool is filled with water and all fences and gates are installed; 407 Council Agenda: November 1, 2016 Page: 26 Revision Date: -- 4. A reinspection fee per the adopted fee schedule per inspection will be charged for each inspection over two where the work is not ready or corrections have not been completed; 5. The owner shall arrange with the Building Department for inspectors to enter the property to make necessary inspections in connection with the pool. SECTION 3. Chapter 16.06 of Title 16 of the Cupertino Municipal Code is hereby repealed in its entirety and replaced with the following Chapter 16.06 to be entitled, numbered, and to read as follows CHAPTER 16.06 RESIDENTIAL CODE 16.06.010 Code Adoption. A. The provisions of the 2016 California Residential Code and specified Appendices and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. B. One (1) copy of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. 16.06.015 Adoption of Appendix Chapters. The following Appendix Chapters from the 2016 California Residential Code are hereby adopted: Appendix C: Exit Terminals of Mechanical Draft and Direct-Vent Venting Systems; Appendix H: Patio Covers; Appendix J: Existing Building and Structures; Appendix K: Sound Transmission; Appendix V: Swimming Pool Safety Act 16.06.050 Automatic Fire Sprinkler Systems. Amend Section R313.1 of the 2016 California Residential Code to read as follows: 408 Council Agenda: November 1, 2016 Page: 27 Revision Date: -- R313.1 Townhouse automatic fire sprinkler systems. An automatic residential fire sprinkler system shall be installed in all new townhouses and in existing townhouses when additions are made that increase the building area to more than 3,600 square feet. Exception: One or more additions made to a building after January 1, 2011 that do not total more than 1000 square feet of building area. Amend Section R313.2 of the 2016 California Residential Code to read as follows: R313.2 One- and two-family dwellings automatic fire sprinkler systems. An automatic residential fire sprinkler system shall be installed in one- and two-family dwellings as follows: 1. In all new one- and two-family dwellings, rebuild of existing one- and two-family dwellings as defined by the Building Official, and in existing one- and two-family dwellings when additions are made that increase the building area to more than 3,600 square feet. Exception: 1. One or more additions made to a building after January 1, 2011 that do not total more than 1000 square feet of building area. 2. Fire sprinkler systems are not required for an accessory dwelling unit if a fire sprinkler system is not provided for the primary residence it serves. 2. In all new basements and in existing basements that are expanded. Exception: Existing basements that are expanded by not more than 50%. 16.06.060 Materials and Construction Methods for Exterior Wildfire Exposure. Amend Section R337.7.9 of the 2016 California Residential Code to read as follows: R337.7.9 Underside of appendages. The underside of overhanging appendages shall be enclosed to grade in accordance with the requirements of this chapter or the underside of the exposed underfloor shall consist of one of the following: 1. Noncombustible material. 409 Council Agenda: November 1, 2016 Page: 28 Revision Date: -- 2. Ignition-resistant material. 3. One layer of 5/8-inch Type X gypsum sheathing applied behind an exterior covering on the underside of the floor projection. 4. The exterior portion of a 1-hour fire resistive exterior wall assembly applied to the underside of the floor including assemblies using the gypsum panel and sheathing products listed in the Gypsum Association Fire Resistance Design Manual. 5. The underside of a floor assembly that meets the performance criteria in accordance with the test procedures set forth in either of the following: 5.1 SFM Standard 12-7A-3; or 5.2 ASTM E2957 Exception: Heavy timber structural columns and beams do not require protection. Amend Section R337.10.3 of the 2016 California Residential Code to read as follows: R337.10.3. Where required. Accessory structures shall comply with the requirements of this section. R337.10.3.1. Attached accessory structures shall comply with the requirements of this section. Amend Section R337.10.4 of the 2016 California Residential Code to read as follows: R337.10.4. Requirements. Accessory structures shall be constructed on noncombustible or ignition-resistant materials. 16.06.070 Footings. Amend Section R403.1 of the 2016 California Residential Code to read as follows: R403.1 General. All exterior walls shall be supported on continuous solid or fully grouted masonry or concrete footings, or other approved structural systems which shall be of sufficient design to accommodate all loads according to Section R301 and to transmit the resulting loads to the soil within the limitations as determined from the character of the soil. Footings shall be supported on undisturbed natural soils or engineered fill. Concrete footings shall be designed and constructed in accordance with the provisions of Section R403 or in accordance with ACI 332. Amend Section R403.1.1 of the 2016 California Residential Code to read as follows: 410 Council Agenda: November 1, 2016 Page: 29 Revision Date: -- R403.1.1 Minimum size. Minimum sizes for concrete and masonry footings shall be as set forth in Table R403.1(1) to Table R403.1(3) and Figure R403.1.3. The footing width, W, shall be based on the load-bearing value of the soil in accordance with Table R401.4.1. Spread footings shall be at least 6 inches (152 mm) in thickness, T. Footing projection, P, shall be at least 2 inches (51 mm) and shall not exceed the thickness of the footing. The size of footings supporting piers and columns shall be based on the tributary load and allowable soil pressure in accordance with Table R401.4.1. Delete Figure R403.1(2) and Figure R403.1(3). Delete Section R403.2 in its entirety. 16.06.090 Roof Covering Classification. Amend Section R902.1.3 of the 2016 California Residential Code to read as follows: R902.1.3 Roof coverings in all other areas. The entire roof covering of every existing structure where more than 50 percent of the total roof area is replaced within any one-year period, the entire roof covering of every new structure, and any roof covering applied in the alteration, repair or replacement of the roof of every existing structure, shall be a fire- retardant roof covering that is at least Class A. Amend Section R902.1.4 of the 2016 California Residential Code to read as follows: R902.1.4 Roofing coverings within the Wildland-Urban Interface Fire Area. The entire roof covering of every existing structure where more than 50 percent of the total roof area is replaced within any one-year period, the entire roof covering of every new structure, and any roof covering applied in the alteration, repair or replacement of the roof of every existing structure, shall be a fire-retardant roof covering that is at least Class A. Roofing requirement for structures located in a Wildland-Urban Interface Fire Area shall also comply with Section R337.5. 16.06.100 Spark Arrestors. In new construction or when alterations, repairs or additions requiring a permit and having a valuation in excess of one thousand dollars occur, all new and existing fireplace 411 Council Agenda: November 1, 2016 Page: 30 Revision Date: -- chimneys shall terminate in a substantially constructed spark arrestor complying with the requirements of the 2016 California Residential Code Section R1003.9.2. 16.06.110 Intermittent Brace Wall Panel Construction Methods. Amend Section R602.10.4 of the 2016 California Residential Code, to add a new footnote "f" to the end of CRC Table R602.10.3(3) to read as follows: f. In Seismic Design Categories D0, D1, and D2, Method GB is not permitted and the use of Method PCP is limited to one-story single family dwellings and accessory structures. Add the "f" footnote notation in the title of Table R602.10.3(3) to read as follows: TABLE R602.10.3(3)f BRACING REQUIREMENTS BASED ON SEISMIC DESIGN CATEGORY Add a new subsection R602.10.4.4 of the 2016 California Residential Code, to read as follows: R602.10.4.4 Limits on methods GB and PCP. In Seismic Design Categories D0, D1, and D2, Method GB is not permitted for use as intermittent braced wall panels, but gypsum board is permitted to be installed when required by this Section to be placed on the opposite side of the studs from other types of braced wall panel sheathing. In Seismic Design Categories D0, D1, and D2, the use of Method PCP is limited to one-story single family dwellings and accessory structures. SECTION 4. Chapter 16.16 of Title 16 of the Cupertino Municipal Code is hereby repealed in its entirety and replaced with the following Chapter 16.16 to be entitled, numbered, and to read as follows: CHAPTER 16.16: ELECTRICAL CODE 16.16.010 Code Adoption. A. The provisions of the 2016 California Electrical Code and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. 412 Council Agenda: November 1, 2016 Page: 31 Revision Date: -- B. One (1) copy of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. 16.16.015 Adoption of Appendix Chapters. No Appendix Chapters from the 2016 California Electrical Code have been adopted. 16.16.020 Article 100 Amended–Definitions. Adopt Article 100 of the 2016 California Electrical Code with the following definitions added: Electrical Contractors. For the purpose of this article, an Electrical Contractor shall be a person holding a valid electrical contractor's license issued by the State of California. Journeyman Electrician. A journeyman electrician is an electrician qualified by training and experience to do electrical work in conjunction with new construction and/or rework of existing systems. Maintenance Electrician. A maintenance electrician in an electrician qualified by training and experience to do the recurring work required to keep a facility in such condition that it may be utilized at its designated capacity and efficiency, to do repair work or replacement or overhaul of constituent parts or materials to keep or restore a facility to a condition substantially equivalent to its original or design capacity or efficiency. 16.16.030 Electrical Work. Electrical work shall be done only by: a. Owner/Builder; b. Electrical contractors who are in compliance with the state licensing laws and whose employees are under the direct supervision of a qualified journeyman electrician; c. A general building contractor if scope of work involves at least two unrelated trades or crafts other than framing or carpentry, or if the general building contractor holds the appropriate license classification; d. Maintenance electrician. 413 Council Agenda: November 1, 2016 Page: 32 Revision Date: -- 16.16.040 Electrical Fee Schedule. Electrical fees shall be paid to the city as set forth in the latest resolution adopted by the city. 16.16.050 Interpretation. A. The language used in this code, and the California Electrical Code, which is made a part of this code by reference, is intended to convey the common and accepted meaning familiar to the electrical industry. B. The Building Official or his assistants is authorized to determine the intent and meaning of any provisions of this code. Such determination shall be made in writing and a record kept, which record shall be open to the public. 16.16.060 Electrical Maintenance Program. Any person regularly employing one or more full-time qualified electricians for the purpose of installation, alteration, maintenance or repair on any property which such person owns or occupies, may designate a qualified electrician as a maintenance electrician. Upon being approved by the Chief Building Official, the maintenance electrician shall make monthly or quarterly reports to the city covering all installations, additions, or alterations. All such work shall be installed and done in accordance with the provisions of the Electrical Code, and shall be subject to the payment of fees, and to inspection by the electrical inspector to the same extent as similar work performed by other persons and for which such inspection is provided. SECTION 5. Chapter 16.20 of Title 16 of the Cupertino Municipal Code is hereby repealed in its entirety and replaced with the following Chapter 16.20 to be entitled, numbered, and to read as follows: CHAPTER 16.20: PLUMBING CODE 16.20.010 Code Adoption. 414 Council Agenda: November 1, 2016 Page: 33 Revision Date: -- A. The provisions of the 2016 California Plumbing Code and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. B. One (1) copy of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. 16.20.015 Adoption of Appendix Chapters. The following Appendix Chapters from the 2016 California Plumbing Code are hereby adopted: Appendix A: Recommended Rules for Sizing the Water Supply System; Appendix B: Explanatory Notes on Combination Waste and Vent Systems; Appendix C: Alternate Plumbing Systems; Appendix D: Sizing Storm Water Drainage Systems; Appendix H: Private Sewage Disposal Systems; Appendix I: Installation Standards for PEX Tubing Systems for Hot- and Cold-Water Distribution; 16.20.020 Name Insertion. The names “Cupertino” and/or “California” shall be inserted in the appropriate places provided therefor in each and every section of such California Plumbing Code wherein either the name of the city or state is left blank. SECTION 6. Chapter 16.24 of Title 16 of the Cupertino Municipal Code is hereby repealed in its entirety and replaced with the following Chapter 16.24 to be entitled, numbered, and to read as follows: CHAPTER 16.24: MECHANICAL CODE 16.24.010 Code Adoption. A. The provisions of the 2016 California Mechanical Code and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. 415 Council Agenda: November 1, 2016 Page: 34 Revision Date: -- B. One (1) copy of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. 16.24.015 Adoption of Appendix Chapters. No Appendix Chapters from the 2016 California Mechanical Code have been adopted. 16.24.020 Name Insertion. The names “Cupertino” and/or “California” shall be inserted in the appropriate places provided therefor in each and every section of such California Mechanical Code wherein either the name of the city or state is left blank. SECTION 7. Chapter 16.40 of Title 16 of the Cupertino Municipal Code is hereby repealed in its entirety and replaced with the following Chapter 16.40 to be entitled, numbered, and to read as follows 16.40.010 Adoption of the 2016 California Fire Code and 2015 International Fire Code. A. There is hereby adopted by the City of Cupertino for the purpose of prescribing regulations governing conditions hazardous to life and property from fire or explosion, that certain code known as the 2016 California Fire Code based on the 2015 International Fire Code, including Appendix Chapters B, C and N and the whole thereof, save and except such portions as are hereinafter deleted, modified or amended by this ordinance, B. One (1) copy of the code therefore is on file in the office of the Building Official and the Fire Code Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. 16.40.015 Adoption of Appendix Chapters. The following Appendix Chapters from the 2016 California Fire Code are hereby adopted. Appendix B: Fire-Flow Requirement for Buildings. Appendix C: Fire Hydrant Locations and Distribution. 416 Council Agenda: November 1, 2016 Page: 35 Revision Date: -- Appendix N: Temporary Haunted Houses, Ghost Walks and Similar Amusement Uses. 16.40.060 Permits. Amend Section 105.1.7 to the 2016 California Fire Code to read as follows: 105.1.7 Construction permit fees. Construction permit fees and plan review fees for fire hydrant systems, fire extinguishing systems and fire alarm systems shall be paid to the Santa Clara County Fire Department in accordance with the following table based on valuation. The valuation shall be limited to the value of the system for which the permit is being issued. Plan review fees are 65% of the Permit Fee amount. For the purposes of determining the total fee amount for each permit, the plan review fee shall be added to the Permit Fee. TOTAL VALUATIONS PERMIT FEE $1.00 TO $500.00 $23.50 $501.00 TO $2,000.00 $23.50 for the first $500.00 plus $3.05 for each additional $100.00, or fraction thereof, to and including $2,000.00 $2001.00 TO $25,000.00 $69.25 for the first $2,000.00 plus $14.00 for each additional $1,000.00 or fraction thereof, to and including $25,000.00 $25,001.00 TO $50,000.00 $391.25 for the first $25,000.00 plus $10.10 for each additional $1,000.00, or fraction thereof, to and including $50,000.00 $50,001.00 TO $100,000.00 $643.75 for the first $50,000.00 plus $7.00 for each additional $1,000.00, or fraction thereof, to and including $100,000.00 $100,001.00 to $500,000.00 $993.75 for the first $100,000.00 plus $5.60 for each additional $1,000.00, or fraction thereof, to and including $500,000.00 $500,001 to $1,000,000.00 $3,233.75 for the first $500,000.00 plus $4.75 for each additional $1,000.00, or fraction thereof, to and including $1,000,000.00 $1,000,001 and up $5,608.75 for the first $1,000,000.00 plus $3.15 for each additional $1,000.00, or fraction thereof Additional re-inspections, in connection with the permits above, are to be paid at $50.00 for each occurrence at the discretion of the fire code official. Cancelled inspections without advance notice are to be paid at $112.00 for each occurrence. 417 Council Agenda: November 1, 2016 Page: 36 Revision Date: -- Amend Section 105.1.8 the 2016 California Fire Code to read as follows: 105.1.8 Operational permit fees. Operational permit fees shall be paid to the Santa Clara County Fire Department as follows: FACILITY TYPE PERMIT FEE 1. Institutional A. More than 6 persons $75.00 - Annually B. Over 50 persons $100.00 - Annually 2. Day Care Facilities More than 6 clients $35.00 - Annually 3. Places of Assembly A. 50-300 persons $50.00 - Annually B. Over 300 persons $85.00 - Annually 4. Temporary Membrane Structures, Tents and Canopies (Only those requiring permits in accordance with Section 105.6.43). $85.00 – Each occurrence Section 105.6.9 of the 2016 California Fire Code to read as follows: 105.6.9 Compressed gases. An operational permit is required for the storage, use or handling at normal temperature and pressure (NPT) of compressed gases in excess of the amounts listed in Table 105.6.9. Exceptions: 1. Vehicles equipped for and using compressed gas as a fuel for propelling the vehicle. 2. Inert and simple asphyxiants at or below the amounts listed in Table 105.6.9. Amend Table 105.6.9 of the 2016 California Fire Code to read as follows: TABLE 105.6.9 PERMIT AMOUNTS FOR COMPRESSED GASES 418 Council Agenda: November 1, 2016 Page: 37 Revision Date: -- TYPE OF GAS AMOUNT cubic feet at NTP Corrosive 200 Flammable (except cryogenic and liquefied petroleum gases) 200 Highly toxic Any amount Inert and simple asphyxianta 6,000 Moderately toxic 20 Other health hazards 200 Oxidizing (including oxygen) 504 Pyrophoric Any amount Toxic Any amount For SI: 1 cubic foot = 0.02832 m2 a.For carbon dioxide used in beverage dispensing applications, see Section 105.6.4. Amend Section 105.6.10 of the 2016 California Fire Code to read as follows: 105.6.10 Cryogenic fluids. An operational permit is required to produce, store transport on site, use, handle or dispense cryogenic fluids in excess of the amounts listed in Table 105.6.10 or to install a cryogenic vessel or piping system for the storage or distribution of cryogens. Exception: Permits are not required for vehicles equipped for and using cryogenic fluids as a fuel for propelling the vehicle or for refrigerating the lading. Amend Table 105.6.20 of the 2013 California Fire Code to read as follows: TABLE 105.6.20 PERMIT AMOUNTS FOR HAZARDOUS MATERIALS TYPE OF MATERIAL AMOUNT Carcinogens 10 pounds Combustible liquids See Section 105.6.16 Corrosive materials: Gases See Section 105.6.8 Liquids 55 gallons Solids 500 pounds Cryogens See Section 105.6.10 Explosive materials See Section 105.6.14 419 Council Agenda: November 1, 2016 Page: 38 Revision Date: -- Flammable materials: Gases See Section 105.6.8 Liquids See Section 105.6.16 Solids 100 pounds Highly toxic materials: Gases See Section 105.6.8 Liquids Any amount Solids Any amount Moderately toxic gas See Section 105.6.8 Organic peroxides: Liquids: Class I-IV Any Amount Liquids: Class V No Permit Required Solids: Class I-IV Any Amount Solids: Class V No Permit Required Oxidizing materials: Gases See Section 105.6.8 Liquids Any amount Solids: Any amount Other health hazards: Liquids 55 gallons Solids 500 pounds Pyrophoric materials: Gases See Section 105.6.8 Liquids Any amount Solids Any amount Radioactive materials: Gases See Section 105.6.8 Liquids See Section 105.6.50 Solids See Section 105.6.50 Toxic materials: Gases See Section 105.6.8 Liquids Any amount Solids Any amount Unstable (reactive) materials: Gases See Section 105.6.8 Liquids Any amount Solids Any amount Water reactive materials: Liquids Any amount Solids Any amount 420 Council Agenda: November 1, 2016 Page: 39 Revision Date: -- For SI: 1 gallon = 3.785 L, 1 pound = 0.454 kg. a. 20 gallons when Table 5003.1.1(1) Note k applies and hazard identification signs in accordance with Section 5003.5 are provided for quantities of 20 gallons or less. b. 200 pounds when Table 5003.1.1(1) Note k applies and hazard identification signs in accordance with Section 5003.5 are provided for quantities of 200 pounds or less. Amend Section 105.6.17 the 2016 California Fire Code to read as follows: 105.6.17 Flammable and combustible liquids. An operation permit is required: 1. To use or operate a pipeline for the transportation within facilities of flammable or combustible liquids. This requirement shall not apply to the offsite transportation in pipelines regulated by the Department of Transportation (DOTn) nor does it apply to piping systems. 2. To store, handle or use Class I liquids in excess of 5 gallons (19 L) in a building or in excess of 10 gallons (37.9 L) outside of a building, except that a permit is not required for the following: 2.1. The storage or use of Class I liquids in the fuel tank of a motor vehicle, aircraft, motorboat, mobile power plant or mobile heating plant, unless such storage, in the opinion of the fire code official, would cause an unsafe condition. 2.2. The storage or use of paints, oils, varnishes or similar flammable mixtures where such liquids are stored for maintenance, painting or similar purpose for a period of not more than 30 days. 3. To store, handle or use Class II or Class IIIA liquids in excess of 25 gallons (95 L) in a building or in excess of 60 gallons (227 L) outside a building, except for fuel oil used in connection with oil burning equipment. 4. To store, handle or use Class IIIB liquids I tanks or portable tanks for fueling moto r vehicles at motor fuel-dispensing facilities or where connected to fuel-burning equipment. Exception: Fuel oil and used motor oil used for space heating or water heating. 5. To remove Class I or II liquids from an underground storage tank used for fueling motor vehicles by any means other than the approved, stationary onsite pumps normally used for dispensing purposes. 6. To operate tank vehicles, equipment, tanks, plants, terminals, wells, fuel-dispensing stations, refineries, distilleries, and similar facilities where flammable and combustible liquids are produced, processed, transported, stored, dispensed or used. 7. To place temporarily out of service (for more than 90 days) an underground, protected above-ground or above-ground flammable or combustible liquid tank. 421 Council Agenda: November 1, 2016 Page: 40 Revision Date: -- 8. To change the type of contents stored in a flammable or combustible liquid tank to a materials that poses a greater hazard than that for which the tank was designed and constructed. 9. To manufacture, process, blend or refine flammable or combustible liquids. 10. To engage in the dispensing of liquid fuels into the fuel tanks of motor vehicles at commercial, industrial, governmental or manufacturing establishments in accordance with Section 5706.5.4 or to engage in on-demand mobile fueling operations in accordance with Section 5707. 11. To utilize a site for the dispensing of liquid fuels from tank vehicles into the fuel tanks of motor vehicles, marine craft and other special equipment at commercial, industrial, governmental or manufacturing establishments in accordance with Section 5706.5.4 or to utilize a site for on-demand mobile fueling operations in accordance with Section 5707. Amend Table 105.6.21 of the 2016 California Fire Code to read as follows: TABLE 105.6.21 PERMIT AMOUNTS FOR HAZARDOUS MATERIALS TYPE OF MATERIAL AMOUNT Combustible liquids See Section 105.6.17 Corrosive materials: Gases See Section 105.6.9 Liquids 55 gallons Solids 500 pounds Explosive materials See Section 105.6.15 Flammable materials: Gases See Section 105.6.9 Liquids See Section 105.6.17 Solids 100 pounds Highly toxic materials: Gases See Section 105.6.9 Liquids Any Amount Solids Any Amount Moderately toxic materials: Gases See Section 105.6.9 Other health hazard materials: Gases See Section 105.6.9 Liquids 55 gallons 422 Council Agenda: November 1, 2016 Page: 41 Revision Date: -- Solids 500 pounds Oxidizing materials: Gases See Section 105.6.9 Liquids: Class 4 Class 3 Class 2 Class 1 Any Amount 1 gallona 10 gallons 55 gallons Solids: Class 4 Class 3 Class 2 Class 1 Any Amount 10 poundsb 100 pounds 500 pounds Organic peroxides: Liquids Class I Class II Class III Class IV Class V Any Amount Any Amount 1 gallon 2 gallons No Permit Required Solids Class I Class II Class III Class IV Class V Any Amount Any Amount 10 pounds 20 pounds No Permit Required Pyrophoric materials: Gases Any amount Liquids Any amount Solids Any amount Toxic materials: Gases Liquids See Section 105.6.9 10 gallons Solids 100 pounds Unstable (reactive) materials: Liquids Class 4 Class 3 Class 2 Any Amount Any Amount 5 gallons 423 Council Agenda: November 1, 2016 Page: 42 Revision Date: -- Class 1 Solids Class 4 Class 3 Class 2 Class 1 10 gallons Any Amount Any Amount 50 pounds 100 pounds Water-reactive materials: Liquids Class 3 Class 2 Class 1 Solids Class 3 Class 2 Class 1 Any Amount 5 gallons 55 gallons Any Amount 50 pounds 500 pounds For SI: 1 gallon = 3.785 L, 1 pound = 0.454 kg. a. 20 gallons for Class 3 oxidizers when Table 5003.1.1(1) Note k applies and hazard identification signs in accordance with Section 5003.5 are provided for quantities of 20 gallons or less. b. 200 pounds for Class 3 oxidizers when Table 5003.1.1(1) Note k applies and hazard identification signs in accordance with Section 5003.5 are provided for quantities of 200 pounds or less. Adopt Section 105.6.50 to the 2016 California Fire Code to read as follows: 105.6.50 Day care facility. An operational permit is required to operate a business as a day care facility for more than 6 people. Adopt Section 105.6.51 to the 2016 California Fire Code to read as follows: 105.6.51 Institutional. A permit is required to operate, maintain, or use any institutional type occupancy. For the purpose of this Section, an institution shall be, but is not limited to: hospitals, children’s home, home or institution for insane or mentally retarded persons, home or institution for the care of aged or senile persons, sanitarium, nursing or convalescent home, certified family care homes, residential care homes for the elderly, out of home placement facilities, halfway house, and day care nurseries or similar facility of any capacity. Amend Section 105.7.3 of the 2016 California Fire Code to read as follows: 424 Council Agenda: November 1, 2016 Page: 43 Revision Date: -- 105.7.3 Compressed Gases. A construction permit is required to install any piped distribution system for compressed gases, or to install a non-flammable medical gas manifold system. A construction permit is required to install, repair damage to, abandon, remove, place temporarily out of service, close or substantially modify a compressed gas system. Exceptions: 1. Routine maintenance. 2. For emergency repair work performed on an emergency basis, application for permit shall be made within two working days of commencement of work. The permit applicant shall apply for approval to close storage, use or handling facilities at least 30 days prior to the termination of the storage, use or handling of compressed or liquefied gases. Such application shall include any change or alteration of the facility closure plan. This 30-day period may be waived by the chief if there are special circumstances requiring such waiver. Amend Section 105.7.4 of the 2016 California Fire Code to read as follows: 105.7.4 Cryogenic fluids. A construction permit is required for installation of or alteration to cryogenic fluid storage systems where the system capacity exceeds the amounts listed in Table 105.6.11. Maintenance performed in accordance with this code is not considered an alteration and does not require a construction permit. Adopt Section 106.5 to the 2016 California Fire Code to read as follows: 106.5 Final Inspection. No final inspection as to all or any portion of a development shall be deemed completed until the installation of the required fire protection facilities and access ways have been completed and approved. No final certificate of occupancy may be granted until the Fire Department issues notice of final clearance of such fire protection facilities and access ways to the Building Department. 16.40.070 Definitions. Adopt Chapter 3 of the 2016 California Fire Code with the following definitions amended or added: CONTINUOUS GAS DETECTION SYSTEM. An approved gas detection system where the analytical instrument is maintained in continuous operation and sampling is performed without interruption. Analysis is allowed to be performed on a cyclical basis at intervals not to exceed 425 Council Agenda: November 1, 2016 Page: 44 Revision Date: -- 30 minutes. In occupied areas where air is re-circulated and not exhausted to a treatment system (e.g. breathing zone), the Chief may require a cyclical basis at intervals not to exceed 5 minutes. The gas detection system shall be able to detect the presence of a gas at or below the permissible exposure limit in occupiable areas and at or below ½ IDLH (or 0.05 LC 50 if no established IDLH) in unoccupiable areas. CORROSIVE LIQUID. Corrosive liquid is: 1. any liquid which, when in contact with living tissue, will cause destruction or irreversible alteration of such tissue by chemical action; 2. any liquid having a pH of 2 or less or 12.5 or more; 3. any liquid classified as corrosive by the U.S. Department of Transportation; and 4. any material exhibiting the characteristics of corrosivity in accordance with Title 22, California Code of Regulations §66261.22. MAXIMUM THRESHOLD QUANTITY (MAX TQ). Maximum Threshold Quantity (Max TQ) is the maximum quantity of a moderately toxic or toxic gas, which may be stored in a single vessel before a more stringent category of regulation is applied. MINIMUM THRESHOLD QUANTITY. Minimum threshold quantity is the aggregate of highly toxic, toxic or moderately toxic gases in a control area which, due to the minimum aggregate quantities, need only comply with the requirements set forth in Section 6004.1. MODERATELY TOXIC GAS. A chemical or substance that has a median lethal concentration (LC50) in air more than 2000 parts per million but not more than 5000 parts per million by volume of gas or vapor, when administered by continuous inhalation for an hour, or less if death occurs within one hour, to albino rats weighing between 200 and 300 grams each. OTHER HEALTH HAZARD MATERIAL. is a hazardous material which affects target organs of the body, including but not limited to, those materials which produce liver damage, kidney damage, damage to the nervous system, act on the blood to decrease hemoglobin function, deprive the body tissue of oxygen or affect reproductive capabilities, including mutations (chromosomal damage) or teratogens (effect on fetuses). SECONDARY CONTAINMENT. Secondary containment is that level of containment that is external to and separate from primary containment and is capable of safely and securely containing the material, without discharge, for a period of time reasonably to ensure detection and remedy of the primary containment failure. 426 Council Agenda: November 1, 2016 Page: 45 Revision Date: -- SPILL CONTROL. That level of containment that is external to and separate from the primary containment and is capable of safely and securely containing the contents of the largest container and prevents the materials from spreading to other parts of the room. WORKSTATION. A defined space or an independent principal piece of equipment using hazardous materials with a hazard rating of 3 or higher as ranked by NFPA 704 where a specific function, laboratory procedure or research activity occurs. Approved or listed hazardous materials storage cabinets, flammable liquid storage cabinets or gas cabinets serving a workstation are included as part of the workstation. A workstation is allowed to contain ventilation equipment, fire protection devices, electrical devices, and other processing and scientific equipment. 16.40.080 Hazards to Firefighters Adopt Section 316.7 of the 2016 California Fire Code to read as follows: 316.7 Roof guardrails at interior courts. Roof openings into interior courts that are bounded on all sides by building walls shall be protected with guardrails. The top of the guardrail shall not be less than 42 inches in height above the adjacent roof surface that can be walked on. Intermediate rails shall be designed and spaced such that a 12-inch diameter sphere cannot pass through. Exception: Where the roof opening is greater than 600 square feet in area. 16.40.120 Fire apparatus access roads. Amend Section 503.1 of the 2016 California Fire Code to read as follows: 503.1 Where required. Fire apparatus access roads shall be provided and maintained in accordance with Sections 503.1.1 through 503.1.3 and as per Fire Department access road Standards. Amend Section 503.2.1 of the 2016 California Fire Code to read as follows: 503.2.1 Dimensions. Fire apparatus access roads shall have an unobstructed width of not less than 20 feet (6096 mm), exclusive of shoulders, or as required by fire department access road 427 Council Agenda: November 1, 2016 Page: 46 Revision Date: -- standards, except for approved security gates in accordance with Section 503.6, and an unobstructed vertical clearance of 13 feet 6 inches (4115 mm). Exception: When there are not more than two Group R, Division 3, or Group U occupancies, the access road width may be modified by the fire code official. Amend Section 503.2.2 of the 2016 California Fire Code as follows: 503.2.2 Authority. The fire code official shall have the authority to require or permit modifications to the required access widths and/or vertical clearance where they are inadequate for fire or rescue operations or where necessary to meet the public safety objectives of the jurisdiction. 16.40.130 Access to buildings and roofs. Adopt Section 504.5 to the 2016 California Fire Code to read as follows: 504.5 Access Control Devices. When access control devices including bars, grates, gates, electric or magnetic locks or similar devices, which would inhibit rapid fire department emergency access to or within the building are installed, such devices shall be approved by the fire code official. All electrically powered access control devices shall be provided with an approved means for deactivation or unlocking from a single location or otherwise approved by the fire code official. Access control devices shall also comply with Chapter 10 Egress. 16.40.180 Electrical equipment, wiring and hazards. Adopt Section 605.13 of the 2016 California Fire Code to read as follows: 605.11 Immersion Heaters. All electrical immersion heaters used in dip tanks, sinks, vats and similar operations shall be provided with approved over-temperature controls and low liquid level electrical disconnects. Manual reset of required protection devices shall be provided. 16.40.200 Decorative Vegetation in New and Existing Buildings. 428 Council Agenda: November 1, 2016 Page: 47 Revision Date: -- Amend Section 806.1.1 of the 2016 California Fire Code to read as follows: 806.1.1 Display inside buildings. The display of Christmas trees and other decorative vegetation shall be in accordance with the California Code of Regulations, Title 19, Division 1, §3.08 and Sections 806.1 through 806.5. 16.40.210 Automatic sprinkler systems. Amend Section 903.2 of the 2016 California Fire Code to read as follows: 903.2 Where required. Approved automatic sprinkler systems in new and existing buildings and structures shall be provided in the locations described in this Section or in Sections 903.2.1 through 903.2.19 whichever is the more restrictive. For the purposes of this section, firewalls and fire barriers used to separate building areas shall be constructed in accordance with the California Building Code and shall be without openings or penetrations. 1. In other than residential buildings which require the installation of fire sprinklers for all new buildings according to the California Residential Code, an automatic sprinkler system shall be provided throughout all new buildings and structures. Exceptions: a. Buildings and structures that do not exceed 1,000 square feet of building area and that are not located in the Wildland-Urban Interface Fire Area. b. Buildings and structures that are located in the Wildland-Urban Interface Fire Area and do not exceed 500 square feet of building area. c. Group S-2 or U occupancies that are not located in the Wildland-Urban Interface and used exclusively for vehicle parking and meeting all of the following conditions: i. Noncombustible construction ii. Maximum building area not to exceed 5,000 square feet iii. Structure is open on three (3) or more sides iv. Minimum of 10 feet separation from existing buildings unless area is separated by fire walls complying with CBC 706. 2. An automatic sprinkler system shall be provided throughout existing buildings and structures when alterations or additions are made that create conditions described in Sections 903.2.1 through 903.2.19. 429 Council Agenda: November 1, 2016 Page: 48 Revision Date: -- 3. An automatic sprinkler system shall be provided throughout existing buildings and structures, when additions are made that increase the building area to more than 3,600 square feet. Exception: One or more additions made to a building after January 1, 2011 that do not total more than 1,000 square feet of building area. 4. An automatic sprinkler system shall be provided throughout all new basements regardless of size and throughout existing basements that are expanded by more than 50%. 5. Any change in the character of occupancy or in use of any building with a building area equal to or greater than 3,600 square feet which, in the opinion of the fire code official or Building Official, would place the building into a more hazardous division of the same occupancy group or into a different group of occupancies and constitutes a greater degree of life safety 1 or increased fire risk2, shall require the installation of an approved automatic fire sprinkler system. 1 Life Safety – Increased occupant load, public assembly areas, public meeting areas, churches, indoor amusement attractions, buildings with complex exiting systems due to increased occupant loads, large schools/day-care facilities, large residential care facilities with non-ambulatory; 2 Fire Risks – High-piled combustible storage, woodworking operations, hazardous operations using hazardous materials, increased fuel loads (storage of moderate to highly combustible materials), increased sources of ignition (welding, automotive repair with the use of flammable liquids and open flames). 16.40.220 Precautions against fire. Adopt Section 3304.8 of the 2016 California Fire Code to read as follows: 3304.8 Fire Walls. When firewalls are required, the wall construction shall be completed (with all openings protected) immediately after the building is sufficiently weather-protected at the location of the wall(s). 16.40.230 Means of egress. 430 Council Agenda: November 1, 2016 Page: 49 Revision Date: -- Amend Section 3311.1 of the 2016 California Fire Code to read as follows: 3311.1 Stairways Required. Each level above the first story in new multi-story buildings that require two exit stairways shall be provided with at least two usable exit stairways after the floor decking is installed. The stairways shall be continuous and discharge to grade level. Stairways serving more than two floor levels shall be enclosed (with openings adequately protected) after exterior walls/windows are in place. Exit stairs in new and in existing, occupied buildings shall be lighted and maintained clear of debris and construction materials at all times. Exception: For new multi-story buildings, one of the required exit stairs may be obstructed on not more than two contiguous floor levels for the purposes of stairway construction (i.e., installation of gypsum board, painting, flooring, etc.). Adopt Section 3311.1.1 of the 2016 California Fire Code to read as follows: Section 3311.1.1 Required Means of Egress. All new buildings under construction shall have at least one unobstructed means of egress. All means of egress shall be identified in the prefire plan. See Section 3308.2. 16.40.300 Definitions – Wildland Urban Interface Fire Areas. Amend Section 4902 of the 2016 California Fire Code for the definition of Wildland-Urban Interface Fire Area as follows: Wildland-Urban Interface Fire Area is a geographical area identified by the state as a “Fire Hazard Severity Zone” in accordance with the Public Resources Code Sections 4201 through 4204 and Government Code Sections 51175 through 51189, or other areas designated by the enforcing agency to be at a significant risk from wildfires. The Wildland-Urban Interface Fire Area shall be defined as all areas within the City of Cupertino as set forth and delineated on the map entitled "Wildland-Urban Interface Fire Area” which map and all notations, references, data and other information shown thereon are hereby adopted and made a part of this chapter. The map properly attested, shall be on file in the Office of the City Clerk of the City of Cupertino. 16.40.310 Application. Amend Section 4906.2 of the 2016 California Fire Code to read as follows: 431 Council Agenda: November 1, 2016 Page: 50 Revision Date: -- 4906.2 Application. Buildings and structures located in the following areas shall maintain the required hazardous vegetation and fuel management: 1. All unincorporated lands designated by the State Board of Forestry and Fire Protection as State Responsibility Areas (SRA) including: 1.1. Moderate Fire Hazard Severity Zones 1.2. High Fire Hazard Severity Zones 1.3. Very-High Fire Hazard Severity Zones 2. Land designated as a Very-High Fire Hazard Severity Zone or as a Wildland Urban Interface Fire Area by the City of Cupertino. 16.40.320 Defensible space. Amend Section 4907.1 of the 2016 California Fire Code to read as follows: 4907.1 General. Defensible space will be maintained around all buildings and structures in State Responsibility Area (SRA) as required in Public Resources Code 4290 and “SRA Fire Safe Regulations” California Code of Regulations, Title 14, Division 1.5, Chapter 7, Subchapt er 2, Section 1270. Buildings and structures within the Very-High Fire Hazard Severity Zones of a Local Responsibility Area (LRA) shall maintain defensible space as outlined in Government Code 51175 – 51189 and any local ordinance of the authority having jurisdiction. Persons owning, leasing, controlling, operating or maintaining buildings or structures in the locally adopted Wildland-Urban Interface Fire Area but that are not within the Very-High Fire Hazard Severity Zone and persons owning, leasing or controlling land adjacent to such buildings or structures, shall at all times: 1. Maintain an effective defensible space by removing and clearing away flammable vegetation and combustible growth from areas within 30 feet (9144 mm) of such buildings or structures. Exception: Single specimens of trees, ornamental shrubbery or similar plants used as ground covers, provided that they do not form a means of rapidly transmitting fire from the native growth to any structure. 432 Council Agenda: November 1, 2016 Page: 51 Revision Date: -- 2. Maintain additional effective defensible space by removing brush, flammable vegetation and combustible growth located 30 feet to 100 feet (9144 mm to 30480 mm) when required by the fire code official due to steepness of terrain or other conditions that would cause a defensible space of only 30 feet (9144 mm) to be insufficient. Exception: Grass and other vegetation located more than 30 feet (9144 mm) from buildings or structures and less than 18 inches (457 mm) in height above the ground need not be removed where necessary to stabilize the soil and prevent erosion. 3. Remove portions of trees, which extend within 10 feet (3048 mm) of the outlet of a chimney. 4. Maintain trees adjacent to or overhanging a building free of deadwood; and 5. Maintain the roof of a structure free of leaves, needles or other dead vegetative growth. 6. Defensible space shall also be provided around water tank structures, water supply pumps and pump houses. 7. Remove flammable vegetation a minimum of 10 feet around liquefied petroleum gas tanks/containers. 8. Firewood and combustible materials shall not be stored in unenclosed spaces beneath buildings or structures, or on decks or under eaves, canopies or other projections or overhangs. The storage of firewood and combustible material within the defensible space shall be located a minimum of 30 feet (6096 mm) from structures and separated from the crown of trees by a minimum horizontal distance of 15 feet (4572 mm). Exception: Firewood and combustible materials not for consumption on the premises shall be stored as approved by the fire code official. 9. Clear areas within 10 feet (3048 mm) of fire apparatus access roads and driveways of non- fire-resistive vegetation growth. Exception: Single specimens of trees, ornamental vegetative fuels or cultivated ground cover, such as green grass, ivy, succulents or similar plants used as ground cover, provided they do not form a means of readily transmitting fire. Adopt Section 4907.2 of the 2016 California Fire Code to read as follows: 433 Council Agenda: November 1, 2016 Page: 52 Revision Date: -- 4907.2 Corrective Actions. The executive body is authorized to instruct the fire code official to give notice to the owner of the property upon which conditions regulated by Section 4907.1 exist to correct such conditions. If the owner fails to correct such conditions the executive body is authorized to cause the same to be done and make the expense of such correction a lien upon the property where such conditions exists. 16.40.330 Fire protection plan. Adopt Section 4908 of the 2016 California Fire Code to read as follows: 4908.1 General. When required by the code official, a fire protection plan shall be prepared. 4908.2 Content. The plan shall be based upon a site-specific wildfire risk assessment that includes considerations of location, topography, aspect, flammable vegetation, climatic conditions and fire history. The plan shall address water supply, access, building ignition and fire-resistance factors, fire protection systems and equipment, defensible space and vegetation management. 4908.3 Cost. The cost of fire protection plan preparation and review shall be the responsibility of the applicant. 4908.4 Plan Retention. The fire protection plan shall be retained by the fire code official. 16.40.340 Water Supply. Adopt Section 4909 of the 2016 California Fire Code to read as follows: 4909.1 General. Buildings and structures, or portions thereof, hereafter constructed or relocated into or within the Wildland-Urban Interface Fire Area shall be provided with fire protection water supplies in accordance with Chapter 5 and Section 4909.2. Exception: Buildings containing only private garages, carports, sheds and agricultural buildings with a building area of not more than 500 square feet (56 m2). 4909.2 Standby power. Standby power shall be provided to pumps, controllers and related electrical equipment so that stationary water supply facilities within the wildland-urban 434 Council Agenda: November 1, 2016 Page: 53 Revision Date: -- interface area that are dependent on electrical power can provide the required water supply. The standby power system shall be in accordance with the Electrical Code. The standby power source shall be capable of providing power for a minimum of two hours. Exceptions: 1. When approved by the code official, a standby power supply is not required where the primary power service to the stationary water supply facility is underground. 2. A standby power supply is not required where the stationary water supply facility serves no more than one single-family dwelling. 16.40.350 Ignition source control. Adopt Section 4910 of the 2016 California Fire Code to read as follows: 4910.1 Fireworks. Fireworks shall not be used or possessed in the Wildland-Urban Interface Fire Area. 16.40.355 General - Hazardous Materials. Amend Section 5001.2.2.2 of the 2016 California Fire Code to read as follows: 5001.2.2.2 Health Hazards The material categories listed in this section are classified as health hazards. A material with a primary classification as a health hazard can also pose a physical hazard. 1. Highly toxic and toxic materials. 2. Corrosive materials. 3. Moderately toxic gas. 4. Other health hazards. 16.40.360 General requirements - Hazardous Materials. Adopt Section 5003.1.5 of the 2016 California Fire Code to read as follows: 5003.1.5 Toxic, Highly Toxic, Moderately Toxic Gases and Similarly Used or Handled Materials. The storage, use and handling of toxic, highly toxic and moderately toxic gases in amounts exceeding Table 6004.2 or 6004.3 shall be in accordance with this chapter and Chapter 435 Council Agenda: November 1, 2016 Page: 54 Revision Date: -- 60. Any toxic, highly toxic or moderately toxic material that is used or handled as a gas or vapor shall be in accordance with the requirements for toxic, highly toxic or moderately toxic gases. Adopt Section 5003.1.6 of the 2016 California Fire Code to read as follows: 5003.1.6 Other Health Hazards. The storage, use and handling of materials classified as other health hazards including carcinogens, irritants and sensitizers in amounts exceeding 810 cubic feet for gases, 55 gallons for liquids and 5,000 pounds for solids shall be in accordance with this Section 5003. Adopt Section 5003.1.7 of the 2016 California Fire Code to read as follows: 5003.1.7 Additional Spill Control and Secondary Containment Requirements. In addition to the requirements set forth in Section 5004.2, an approved containment system is required for any quantity of hazardous materials, that are liquids or solids at normal temperature, and pressure (NTP) where a spill is determined to be a plausible event and where such an event would endanger people, property or the environment. The approved containment system may be required to include a combination of spill control and secondary containment meeting the design and construction requirements set forth in Section 5004.2. Amend Section 5003.2.2.1 of the 2016 California Fire Code to read as follows: 5003.2.2.1 Design and Construction. Piping, tubing, valves, fittings and related components used for hazardous materials shall be in accordance with the following: 1. Piping, tubing, valves, fittings and related components shall be designed and fabricated from materials that are compatible with the material to be contained and shall be of adequate strength and durability to withstand the pressure, structural and seismic stress, and exposure to which they are subject. 2. Piping and tubing shall be identified in accordance with ASME A13.1 and the Santa Clara County Fire Chiefs Marking Requirements and Guidelines for Hazardous Materials and Hazardous Waste to indicate the material conveyed. 3. Readily accessible manual valves or automatic remotely activated fail-safe emergency shutoff valves shall be installed on supply piping and tubing at the following locations: 1. The point of use. 2. The tank, cylinder or bulk use. 436 Council Agenda: November 1, 2016 Page: 55 Revision Date: -- 4. Manual emergency shutoff valves and controls for remotely activated emergency shutoff valves shall be identified and the location shall be clearly visible, accessible and indicated by means of a sign. 5. Backflow prevention or check valves shall be provided where the backflow of hazardous materials could create a hazardous condition or cause the unauthorized discharge of hazardous materials. 6. Where gases or liquids having a hazard ranking of: Health hazard Class 3 or 4 Flammability Class 4 Instability Class 3 or 4 in accordance with NFPA 704 are carried in pressurized piping above 15 pounds per square inch gauge (psig) (103 Kpa), an approved means of leak detection and emergency shutoff or excess flow control shall be provided. Where the piping originates from within a hazardous material storage room or area, the excess flow control shall be located within the storage room or area. Where the piping originates from a bulk source, the excess flow control shall be located as close to the bulk source as practical. Exceptions: 1. Piping for inlet connections designed to prevent backflow. 2. Piping for pressure relief devices. 7. Secondary containment or equivalent protection from spills or leaks shall be provided for piping for liquid hazardous materials and for highly toxic and toxic corrosive gases above threshold quantities listed in Tables 6004.1. Secondary containment includes, but is not limited to double-walled piping. Exceptions: 1. Secondary containment is not required for toxic corrosive gases if the piping is constructed of inert materials. 2. Piping under sub-atmospheric conditions if the piping is equipped with an alarm and fail-safe-to-close valve activated by a loss of vacuum. 8. Expansion chambers shall be provided between valves whenever the regulated gas may be subjected to thermal expansion. Chambers shall be sized to provide protection for piping and instrumentation and to accommodate the expansion of regulated materials. Amend Section 5003.2.2.2 of the 2016 California Fire Code to read as follows: 437 Council Agenda: November 1, 2016 Page: 56 Revision Date: -- 5003.2.2.2 Additional Regulation for Supply Piping for Health Hazard Materials. Supply piping and tubing for gases and liquids having a health hazard ranking of 3 or 4 shall be in accordance with ASME B31.3 and the following: 1. Piping and tubing utilized for the transmission of toxic, highly toxic, or highly volatile corrosive liquids and gases shall have welded or brazed connections throughout except for connections within an exhausted enclosure if the material is a gas, or an approved method of drainage or containment is provided for connections if the material is a liquid. 2. Piping and tubing shall not be located within corridors, within any portion of a means of egress required to be enclosed in fire-resistance-rated construction or in concealed spaces in areas not classified as Group H Occupancies. Exception: Piping and tubing within the space defined by the walls of corridors and the floor or roof above or in concealed space above other occupancies when installed in accordance with Section 415.8.6.4 of the California Building Code for H-5 Occupancies. 3. All primary piping for toxic, highly toxic and moderately toxic gases shall pass a helium leak test of 1x10-9 cubic centimeters/second where practical, or shall pass testing in accordance with an approved, nationally recognized standard. Tests shall be conducted by a qualified "thir d party" not involved with the construction of the piping and control systems. Amend Section 5003.3.1 of the 2016 California Fire Code to read as follows: 5003.3.1 Unauthorized Discharges. When hazardous materials are released in quantities reportable under state, federal or local regulations or when there is release or a threatened release that presents a threat to health, property or the environment, the fire code official shall be notified immediately in an approved manner and the following procedures required in accordance with Sections 5003.3.1.1 through 5003.3.1.4. Adopt Section 5003.5.2 of the 2016 California Fire Code to read as follows: 5003.5.2 Ventilation Ducting. Product conveying ducts for venting hazardous materials operations shall be labeled with the hazard class of the material being vented and the direction of flow. Adopt Section 5003.5.3 of the 2016 California Fire Code to read as follows: 438 Council Agenda: November 1, 2016 Page: 57 Revision Date: -- 5003.5.3 "H" Occupancies. In "H" occupancies, all piping and tubing may be required to be identified when there is any possibility of confusion with hazardous materials transport tubing or piping. Flow direction indicators are required. Adopt Sec. 5003.9.11 of the 2016 California Fire Code to read as follows: 5003.9.11 Fire Extinguishing Systems For Workstations Dispensing, Handling or Using Hazardous Materials. Combustible and non-combustible workstations, which dispense, handle or use hazardous materials, shall be protected by an approved automatic fire extinguishing system in accordance with Section 2703.10. Exception: Internal fire protection is not required for Biological Safety Cabinets that carry NSF/ANSI certification where quantities of flammable liquids in use or storage within the cabinet do not exceed 500ml. Amend Section 5003.10.4 of the 2016 California Fire Code to read: 5003.10.4 Elevators utilized to transport hazardous materials. 5003.10.4.1 When transporting hazardous materials, elevators shall have no other passengers other than in the individual(s) handling the chemical transport cart. 5003.10.4.2 Hazardous materials liquid containers shall have a maximum capacity of 20 liters (5.26 gal). 5003.10.4.3 Toxic, highly toxic and asphyxiant gases shall be limited to a container of a maximum water capacity of 1 lb. 5003.10.4.4 Means shall be provided to prevent the elevator from being summoned to other floors. 16.40.365 Storage - Hazardous Materials. Amend Section 5004.2.1 of the 2016 California Fire Code to read as follows: 5004.2.1 Spill control for hazardous material liquids. Rooms, buildings or areas used for storage of hazardous material liquids in individual vessels having a capacity of more than 55 gallons (208 L) or in which the aggregate capacity of multiple vessels exceeds 1,000 gallons (3785 L), shall be provided with spill control to prevent the flow of liquids to adjoining areas. Floors 439 Council Agenda: November 1, 2016 Page: 58 Revision Date: -- in indoor locations and similar surfaces in outdoor locations shall be constructed to contain a spill from the largest single vessel by one of the following methods: 1. Liquid-tight sloped or recessed floors in indoor locations or similar areas in outdoor locations. 2. Liquid-tight floors in indoor locations or similar areas provided with liquid-tight raised or recessed sills or dikes. 3. Sumps and collection systems, including containment pallets in accordance with Section 5004.2.3. 4. Other approved engineered systems. Except for surfacing, the floors, sills, dikes, sumps and collection systems shall be constructed of noncombustible material, and the liquid-tight seal shall be compatible with the material stored. When liquid-tight sills or dikes are provided, they are not required at perimeter openings having an open-grate trench across the opening that connects to an approved collection system. Amend Section 5004.2.2.2 of the 2016 California Fire Code to read as follows: 5004.2.2.2 Incompatible Materials. Incompatible materials shall be separated from each other in independent secondary containment systems. Amend Section 5004.2.3 of the 2016 California Fire Code as follows: 5004.2.3 Containment pallets. Combustible containment pallets shall not be used inside buildings to comply with Section 5004.2 where the individual container capacity exceeds 55 gallons (208 L) or an aggregate capacity of multiple containers exceeds 1,000 gallons (3785 L) for liquids or where the individual container capacity exceeds 550 pounds (250 kg) or an aggregate of multiple containers exceeds 10,000 pounds (4540 kg) for solids. Where used as an alternative to spill control and secondary containment for outdoor storage in accordance with the exception in Section 5004.2, containment pallets shall comply with all of the following: 1. A liquid-tight sump accessible for visual inspection shall be provided; 2. The sump shall be designed to contain not less than 66 gallons (250L); 3. Exposed surfaces shall be compatible with material stored; 4. Containment pallets shall be protected to prevent collection of rainwater within the sump of the containment pallet. 440 Council Agenda: November 1, 2016 Page: 59 Revision Date: -- 16.40.370 General – Explosives and Fireworks. Amend Section 5601.1.3 of the 2016 California Fire Code to read as follows: 5601.1.3 Fireworks. The possession, manufacture, storage, sale, handling, and use of fireworks, including those fireworks classified as Safe and Sane by the California State Fire Marshal, are prohibited. Exceptions: 1. Storage and handling of fireworks as allowed in Section 5604. 2. Manufacture, assembly and testing of fireworks as allowed in Section 5605 and Health and Safety Code Division 11. 3. The use of fireworks for fireworks displays, pyrotechnics before a proximate audience and pyrotechnic special effects in motion pictures, television theatrical or group entertainment productions as allowed in Title 19, Division 1, Chapter 6 Fireworks reprinted in Section 5608 and Health and Safety Code Division 11. 16.40.380 Establishment of limits of districts in which storage of Class I and II liquids in aboveground tanks is prohibited. The limits referred to in Section 5706.2.4.4 of the California Fire Code, in which the storage of flammable or combustible liquids in aboveground tanks is prohibited are hereby established as all locations of the City of Cupertino that are residential or other locations as determined by the fire code official. 16.40.385 Storage – Flammable and Combustible Liquids. Amend section 5704.2.7.5.8 of the 2016 California Fire Code to read as follows: 5704.2.7.5.8 Overfill Prevention. An approved means or method in accordance with Section 5704.2.9.7.5 shall be provided to prevent the overfill of all Class I, II and IIIA liquid storage tanks. Storage tanks in refineries, bulk plants or terminals regulated by Sections 5706.4 or 5706.7 shall have overfill protection in accordance with API 2350. Exception: Outside aboveground tanks with a capacity of 1320 gallons (5000 L) or less provided an independent means of notifying the person filling the tank that the fluid level has reached 90 percent of tank capacity by providing an audible or visual alarm signal, or providing a tank level gauge marked at 90 percent of tank capacity. 441 Council Agenda: November 1, 2016 Page: 60 Revision Date: -- An approved means or method in accordance with Section 5704.2.9.7.6 shall be provided to prevent the overfilling of Class IIIB liquid storage tanks connected to fuel-burning equipment inside buildings. Exception Deleted Adopt Section 5704.2.7.5.9 of the 2016 California Fire Code to read as follows: 5704.2.7.5.9 Automatic Filling of Tanks. Systems that automatically fill flammable or combustible liquid tanks shall be equipped with overfill protection, approved by the fire code official, that sends an alarm signal to a constantly attended location and immediately stops the filling of the tank. The alarm signal and automatic shutoff shall be tested on an annual basis and records of such testing shall be maintained on-site for a period of five (5) years. 16.40.390 Establishment of limits of districts in which storage of Class I and II liquids in outside aboveground tanks is prohibited. The limits referred to in Section 5704.2.9.6.1 of the California Fire Code, in which the storage of flammable or combustible liquids in aboveground tanks is prohibited are hereby established as all locations of the City of Cupertino that are residential or congested commercial areas as determined by the Fire Code Official. 16.40.400 Establishment of limits of districts in which the storage of stationary tanks of flammable cryogenic fluids are to be prohibited. The limits referred to in Section 5806.2 of the California Fire Code in which the storage of flammable cryogenic fluids in stationary containers is prohibited are hereby established as all locations of the City of Cupertino which are residential and congested commercial areas as determined by the fire code official. 16.40.410 On-Demand Mobile Fueling Adopt Section 5707 of the 2016 California Fire Code to read as follows: 5707.1 General. On-demand mobile fueling operations that dispense Class I, II, and III liquids into the fuel tanks of motor vehicles shall comply with Sections 5707.1 through 5707.7. Exception: Fueling from an approved portable container in cases of an emergency or for personal use. 442 Council Agenda: November 1, 2016 Page: 61 Revision Date: -- 5707.1.1 Approval required. Mobile fueling operations shall not be conducted without first obtaining a permit and approval from the fire code official. Mobile fueling operations shall occur only at approved locations. 5707.2 Mobile fueling vehicle. An on-demand mobile fueling vehicle shall be one of the following: 1. A tank vehicle complying with NFPA 385 that has chassis-mounted tanks or containers where the aggregate cargo capacity does not exceed 1200 gallons (4542 L). 2. A vehicle with one or more chassis-mounted tanks or containers that do not exceed 110 gallons (415 L) individual capacity and having an aggregate capacity that does not exceed 1200 gallons (4542 L). 3. A vehicle that carries a maximum of 60 gallons (227 L) of motor fuel in metal safety cans listed in accordance with UL 30 or other approved metal containers each not to exceed 5 gallons (19 L) in capacity. The mobile fueling vehicle shall comply with the requirements of all local, state and federal requirements. Mobile fueling vehicles with a chassis-mounted tank in excess of 110 gallons (415 L) shall comply with the requirements of Section 5706.6, Section 5707, and NFPA 385. The mobile fueling vehicle and its equipment shall be maintained in good repair. Safety cans and approved metal containers shall be secured to the mobile fueling vehicle except when in use. 5707.3 Required documents. Documents developed to comply with Sections 5707.3.1 through 5707.3.3 shall be updated as necessary by the owner of the mobile fueling operation and shall be maintained in compliance with Section 107.3. 5707.3.1 Safety and emergency response plan. Mobile fueling operators shall have an approved written safety and emergency response plan that establishes policies and procedures for fire safety, spill prevention and control, personnel training and compliance with other applicable requirements of this code. 5707.3.2 Training records. Training records of operators shall be maintained. Mobile fueling vehicle operators shall possess evidence of training on proper fueling procedures and the safety and emergency response plan. 443 Council Agenda: November 1, 2016 Page: 62 Revision Date: -- 5707.3.3 Site plan. A site plan shall be developed for each location at which mobile fueling occurs. The site plan shall be in sufficient detail to indicate: all buildings, structures, lot lines, property lines, and appurtenances on site and their use or function; all uses adjacent to the lot lines of the site; fueling locations, the locations of all storm drain openings and adjacent waterways or wetlands; information regarding slope, natural drainage, curbing, impounding and how a spill will be retained upon the site property; and the scale of the site plan. 5707.4 Mobile fueling areas. Mobile fueling shall not occur on public streets, public ways, or inside buildings. Fueling on the roof level of parking structures or other buildings is prohibited. 5707.4.1 Separation. Mobile fueling shall not take place within 25 feet (7620 mm) of buildings, property lines, or combustible storage. Exception: The fire code official shall be authorized to decrease the separation distance for dispensing from metal safety cans or other approved metal containers in accordance with Section 5707.2. When dispensing operations occur within 15 feet (4572 mm) of a storm drain, an approved storm drain cover or an approved equivalent method that will prevent any fuel from reaching the drain shall be used. 5707.4.2 Sources of ignition. Smoking, open flames, and other sources of ignition shall be prohibited within 25 feet (7620 mm) of fuel dispensing activities. Signs prohibiting smoking or open flames within 25 feet (7620 mm) of the vehicle and the point of fueling shall be prominently posted on the mobile fueling vehicle. The engines of vehicles being fueled shall be shut off during fueling. 5707.5 Equipment. Mobile fueling equipment shall comply with Sections 5707.5.1 through 5707.5.5. 5707.5.1 Dispensing hoses and nozzles. Where equipped, the dispensing hose shall not exceed 50 feet (15 240 mm) in length. The dispensing nozzles, and hoses and appurtenances shall be of an approved and listed type. 5707.5.2 Break-away device. A listed break-away device shall be provided at the nozzle. 444 Council Agenda: November 1, 2016 Page: 63 Revision Date: -- Exception: Mobile fueling vehicles equipped with an approved brake interlock tied to the nozzle holder that prohibits movement of the mobile fueling vehicle when the nozzle is removed from its holder. 5707.5.3 Shut off valve and fuel limit. Mobile fueling vehicles shall be equipped with a listed shutoff valve assembly and a fuel limit switch set to a maximum of 30 gallons (116 L). 5707.5.4 Fire extinguisher. An approved portable fire extinguisher complying with Section 906 with a minimum rating of 4-A:80-B:C shall be provided on the mobile fueling vehicle with signage clearly indicating its location. 5707.5.5 Spill kit. Mobile fueling vehicles shall contain a minimum 5 gallon (19 L) spill kit of an approved type. 5707.6 Operations. Mobile fueling vehicles shall be constantly attended during fueling operations with brakes set and warning lights in operation. Mobile fueling vehicles shall not obstruct emergency vehicle access roads. 5707.6.1 Dispensing hose. Where equipped, mobile fueling vehicles shall be positioned in a manner to preclude traffic from driving over the dispensing hose. The dispensing hose shall be placed on an approved reel or in an approved compartment prior to moving the mobile fueling vehicle. 5707.6.2 Drip control. Operators shall place a drip pan or an absorbent pillow under the nozzle to catch drips and under each fuel fill opening prior to and during dispensing operations. 5707.6.3 Nighttime deliveries. Nighttime deliveries shall only be made in areas deemed adequately lighted by the fire code official. 5707.6.4 Vehicle lights. The mobile fueling vehicle flasher lights shall be in operation while dispensing operations are in progress. 5707.6.5 Safety cones. Safety cones or barriers shall be employed as warning devices to highlight the vehicle fueling area. 5707.6.6 Bonding. A means for bonding the mobile fueling vehicle to the motor vehicle shall be provided. Such bonding means shall be employed during fueling operations. 5707.6.7 Spill reporting. Spills shall be reported in accordance with Section 5003.3.1. 445 Council Agenda: November 1, 2016 Page: 64 Revision Date: -- 5707.7 Training. Mobile fueling vehicles shall be operated only by designated personnel who are trained on proper fueling procedures and the safety and emergency response plan. The vehicle operator training shall be approved by the fire code official. 16.40.420 General – Highly Toxic, Toxic and Moderately Toxic Materials. Amend Section 6002.1 of the 2016 California Fire Code to read as follows: 6002.1 Definitions. The following terms are defined in Chapter 2: CONTAINMENT SYSTEM. CONTAINMENT VESSEL. EXCESS FLOW VALVE. HIGHLY TOXIC. MAXIMUM THRESHOLD QUANTITY. MINIMUM THRESHOLD QUANTITY. MODERATELY TOXIC GAS. OZONE-GAS GENERATOR. PHYSIOLOGICAL WARNING THRESHOLD. REDUCED FLOW VALVE. TOXIC. 16.40.430 Highly Toxic, Toxic and Moderately Toxic Compressed Gases including those used as Refrigerants. Amend Section 6004.1 of the 2016 California Fire Code to read as follows: 6004.1 General. Materials stored and used as a gas whether or not the material meets the definition of a compressed gas, and meets the definition of a highly toxic, toxic and moderately toxic gas shall comply with Section 6004. The minimum threshold quantity for highly toxic, toxic and moderately toxic gases, vapors and mists for indoor and exterior storage and use are set forth in Table 6004.1. Add Table 6004.1 of the 2016 California Fire Code to read as follows: 446 Council Agenda: November 1, 2016 Page: 65 Revision Date: -- Table 6004.1 Minimum Threshold Quantities for Highly Toxic, Toxic and Moderately Toxic Gases Highly Toxic 0 Toxic 10 cubic feet Moderately Toxic 20 cubic feet Amend Section 6004.1.1 of the 2016 California Fire Code to read as follows: 6004.1.1 Special limitations for indoor storage and use by occupancy. The indoor storage and use of highly toxic, toxic and moderately toxic gases in certain occupancies shall be subject to the limitations contained in Sections 6004.1.1.1 through 6004.1.1.3. 6004.1.1.1 Group A, E, I or U occupancies. Toxic, highly toxic and moderately toxic gases shall not be stored or used within Group A, E, I or U occupancies. Exception: Cylinders not exceeding 20 cubic feet (0.556m3) at normal temperature and pressure (NTP) are allowed within gas cabinets or fume hoods. 6004.1.1.2 Group R occupancies. Toxic, highly toxic and moderately toxic gases shall not be stored or used in Group R occupancies. 6004.1.1.3 Offices, retail sales and classrooms. Toxic, highly toxic and moderately toxic gases shall not be stored or used in offices, retail sales or classroom portions of Group B, F, M or S occupancies. Exception: In classrooms of Group B occupancies, cylinders with a capacity not exceeding 20 cubic feet (0.566 m3) at NTP are allowed in gas cabinets or fume hoods. Amend Section 6004.1.2 of the 2016 California Fire Code to read as follows: 6004.1.2 Gas cabinets. Gas cabinets containing highly toxic, toxic and moderately toxic gases shall comply with Section 5003.8.6 and the following requirements: 1. The average ventilation velocity at the face of gas cabinet access ports or windows shall not be less than 200 cubic feet per minute (1.02 m/s) with a minimum of 150 feet per minute (0.76 m/s) at any point of the access port or window. 447 Council Agenda: November 1, 2016 Page: 66 Revision Date: -- 2. Gas cabinets shall be connected to an exhaust system. 3. Gas cabinets shall not be used as the sole means of exhaust for any room or area. 4. The maximum number of cylinders located in a single gas cabinet shall not exceed three, except that cabinets containing cylinders not exceeding 1 pound (0.454 kg) net contents are allowed to contain up to 100 cylinders. Gas cabinets required by Section 6004.2 or 6004.3 shall be equipped with an approved automatic sprinkler system in accordance with Section 903.3.1.1. Alternative fire- extinguishing systems shall not be used. Amend Section 6004.1.3 of the 2016 California Fire Code to read as follows: 6004.1.3 Exhausted enclosures. Exhausted enclosures containing highly toxic, toxic or moderately toxic gases shall comply with Section 5003.8.5 and the following requirements: 1. The average ventilation velocity at the face of the enclosure shall not be less than 200 feet per minute (1.02 m/s) with a minimum of 150 feet per minute (0.76 m/s). 2. Exhausted enclosures shall be connected to an exhaust system. 3. Exhausted enclosures shall not be used as the sole means of exhaust for any room or area. Exhausted enclosures required by Section 6004.2 or 6004.3 shall be equipped with an approved automatic sprinkler system in accordance with Section 903.3.1.1. Alternative fire- extinguishing system shall not be used. Adopt Section 6004.1.4 to the 2016 California Fire Code to read as follows: 6004.1.4 Automatic Shut-Off Valve. An automatic shut-off valve, which is of a fail-safe to close design, shall be provided to shut off the supply of highly toxic gases for any of the following: 1. Activation of a manual fire alarm system. 2. Activation of the gas detection system. 3. Failure of emergency power. 4. Failure of primary containment. 5. Seismic activity. 448 Council Agenda: November 1, 2016 Page: 67 Revision Date: -- 6. Failure of required ventilation. 7. Manual activation at an approved remote location. Add Section 6004.1.5 to the 2016 California Fire Code to read as follows: 6004.1.5 Emergency Control Station. Signals from emergency equipment used for highly toxic gases shall be transmitted to an emergency control station or other approved monitoring station, which is continually staffed by trained personnel. Adopt Section 6004.1.6 to the 2016 California Fire Code to read as follows: 6004.1.6 Maximum Threshold Quantity. Toxic gases stored or used in quantities exceeding the maximum threshold quantity in a single vessel per control area or outdoor control area shall comply with the additional requirements for highly toxic gases of Section 6004 of this code. Moderately toxic gases stored or used in quantities exceeding the maximum threshold quantity in a single vessel per control area or outdoor control area shall comply with the additional requirements for toxic gases of Section 6004 of this code. The following formula shall be used to calculate the maximum threshold quantity: Max TQ (pounds) = LC50 (ppm) x 2 lb. For gas mixtures containing one or more toxic, highly toxic or moderately toxic components, the LC50 shall be calculated using CGA Standards P-20 and P-23. Adopt Section 6004.1.7 to the 2016 California Fire Code to read as follows: 6004.1.7 Reduced Flow Valve. All containers of materials other than lecture bottles containing Highly Toxic material and having a vapor pressure exceeding 29 psia shall be equipped with a reduced flow valve when available. If a reduced flow valve is not available, the container shall be used with a flow-limiting device. All flow limiting devices shall be part of the valve assembly and visible to the eye when possible; otherwise, they shall be installed as close as possible to the cylinder source. Adopt Section 6004.1.8 to the 2016 California Fire Code to read as follows: 449 Council Agenda: November 1, 2016 Page: 68 Revision Date: -- 6004.1.8 Fire Extinguishing Systems. Buildings and covered exterior areas for storage and use areas of materials regulated by this Chapter shall be protected by an automatic fire sprinkler system in accordance with NFPA 13. The design of the sprinkler system for any room or area where highly toxic, toxic and moderately toxic gases are stored, handled or used shall be in accordance with Section 5004.5. Adopt Section 6004.1.9 to the 2016 California Fire Code to read as follows: 6004.1.9 Local Gas Shut Off. Manual activation controls shall be provided at locations near the point of use and near the source, as approved by the fire code official. The fire code official may require additional controls at other places, including, but not limited to, the entry to the building, storage or use areas, and emergency control stations. Manual activated shut-off valves shall be of a fail-safe-to-close design. Adopt Section 6004.1.10 to the 2016 California Fire Code to read as follows: 6004.1.10 Exhaust Ventilation Monitoring. For highly toxic gases and toxic gases exceeding threshold quantities, a continuous monitoring system shall be provided to assure that the required exhaust ventilation rate is maintained. The monitoring system shall initiate a local alarm. The alarm shall be both visual and audible and shall be designed to provide warning both inside and outside of the interior storage, use, or handling area. Adopt Section 6004.1.11 to the 2016 California Fire Code to read as follows: 6004.1.11 Emergency Response Plan. If the preparation of an emergency response plan for the facility is not required by any other law, responsible persons shall prepare, or cause to be prepared, and filed with the fire code official, a written emergency response plan. If the preparation of an emergency response plan is required by other law, a responsible person shall file a copy of the plan with the fire code official. Adopt Section 6004.1.12 to the 2016 California Fire Code to read as follows: 6004.1.12 Cylinder Leak Testing. Cylinders shall be tested for leaks immediately upon delivery and again immediately prior to departure. Testing shall be approved by the fire code official in accordance with appropriate nationally recognized industry standards and practices, if any. Appropriate remedial action shall be immediately undertaken when leaks are detected. Adopt Section 6004.1.13 to the 2016 California Fire Code to read as follows: 450 Council Agenda: November 1, 2016 Page: 69 Revision Date: -- 6004.1.13 Inert Gas Purge System. Gas systems shall be provided with dedicated inert gas purge systems. A dedicated inert gas purge system may be used to purge more than one gas, provided the gases are compatible. Purge gas systems inside buildings shall be located in an approved gas cabinet unless the system operates by vacuum demand. Adopt Section 6004.1.14 to the 2016 California Fire Code to read as follows: 6004.1.14 Seismic Shutoff Valve. An automatic seismic shut-off valve, which is of a fail- safe to close design, shall be provided to shutoff the supply of highly toxic, toxic and moderately toxic gases with an LC50 less than 3000 parts per million upon a seismic event within 5 seconds of a horizontal sinusoidal oscillation having a peak acceleration of 0.3G (1.47m/sec2) and a period of 0.4 seconds. Amend Section 6004.2 of the 2016 California Fire Code to read as follows: 6004.2 Indoor Storage and Use. The indoor storage or use of highly toxic, toxic or moderately toxic compressed gases shall be in accordance with Sections 6004.2.1 through 6004.2.2.10.4. Amend Section 6004.2.1 of the 2016 California Fire Code to read as follows: 6004.2.1 Applicability. The applicability of regulations governing the indoor storage and use of highly toxic, toxic, and moderately toxic compressed gases shall be as set forth in Sections 6004.2.1.1 through 6004.2.1.5. Amend Sec. 6004.2.1.1 of the 2016 California Fire Code to read as follows: 6004.2.1.1 Quantities Not Exceeding the Maximum Allowable Quantity per Control Area. The indoor storage or use of highly toxic, toxic and moderately toxic gases in amounts not exceeding the maximum allowable quantity per control area set forth in Table 5003.1.1(2) shall be in accordance with Sections 5001, 5003, 6001, 6004.1, 6004.2.1.4 and 6004.2.1.5. Adopt Section 6004.2.1.4 of the 2016 California Fire Code to read as follows: 6004.2.1.4 Quantities not exceeding minimum threshold quantity per control area. The indoor storage or use of highly toxic, toxic and moderately toxic gases in amounts not exceeding the minimum threshold quantity per control area set forth in Table 6004.1 shall be in accordance with Sections 6001, and 6004.1 and Chapter 50. 451 Council Agenda: November 1, 2016 Page: 70 Revision Date: -- Adopt Section 6004.2.1.5 of the 2016 California Fire Code to read as follows: 6004.2.1.5 Quantities exceeding the minimum threshold quantity per control area. The indoor storage or use of highly toxic, toxic and moderately toxic gases in amounts exceeding the minimum threshold quantity per control area set forth in Table 6004.1 shall be in accordance with Sections 6001, 6004.1, 6004.2 and Chapter 50. Amend Sec. 6004.2.2 of the 2016 California Fire Code to read as follows: 6004.2.2 General Indoor Requirements. The general requirements applicable to the indoor storage and use of highly toxic and toxic compressed gases shall be in accordance with Sections 6004.2.2.1 through 6004.2.2.10.4. Moderately toxic gases with an LC50 equal to or less than 3000 parts per million shall comply with the requirements for toxic gases in Sections 6004.2.2.1 through 6004.2.2.10.4. Moderately toxic gases with an LC50 more than 3000 parts per million but not greater than 5000 parts per million and exceeding the maximum threshold quantity, as determined by 6004.1.6, shall comply with the requirements for toxic gases in Sections 6004.2.2.1 through 6004.2.2.7. Moderately toxic gases shall not be considered as toxic gases for maximum allowable quantities determinations under Table 5003.1.1(2). Amend Sec. 6004.2.2.7 of the 2016 California Fire Code to read as follows: 6004.2.2.7 Treatment Systems. The exhaust ventilation from gas cabinets, exhausted enclosures and gas rooms and local exhaust systems required in Section 6004.2.2.4 and 6004.2.2.5 shall be directed to a treatment system. The treatment system shall be utilized to handle the accidental release of gas and to process exhaust ventilation. The treatment system shall be designed in accordance with Sections 6004.2.2.7.1 through 6004.2.2.7.5 and Chapter 5 of the California Mechanical Code. Exceptions: 1. Highly toxic, toxic and moderately toxic gases storage. A treatment system is not required for cylinders, containers and tanks in storage when all of the following are provided: 1.1. Valve outlets are equipped with gas-tight outlet plug or caps. 1.2. Hand wheel-operated valves have handles secured to prevent movement. 452 Council Agenda: November 1, 2016 Page: 71 Revision Date: -- 1.3. Approved containment vessels or containment systems are provided in accordance with Section 6004.2.2.3. Amend 6004.2.2.10.2 of the 2016 California Fire Code to read as follows: 6004.2.2.10.2. Alarms. The gas detection system shall initiate a local alarm and transmit a signal to a constantly attended control station when a short-term hazard condition is detected. The alarm shall be both visual and audible and shall provide warning both inside and outside the area where the gas is detected. The audible alarm shall be distinct from all other alarms. Amend Section 6004.3 of the 2016 California Fire Code to read as follows: 6004.3 Outdoor Storage and Use. The outdoor storage or use of highly toxic, toxic and moderately toxic compressed gases shall be in accordance with Sections 6004.3.1 through 6004.3.4. The minimum threshold quantity for highly toxic, toxic and moderately toxic gases for outdoor storage and use are set forth in Table 6004.1. Amend Section 6004.3.1 of the 2016 California Fire Code to read as follows: 6004.3.1 Applicability. The applicability of regulations governing the outdoor storage and use of highly toxic, toxic, and moderately toxic compressed gases shall be as set forth in Sections 6004.3.1.1 through 6004.3.1.5. Amend Section 6004.3.1.1 of the 2016 California Fire Code to read as follows: 6004.3.1.1 Quantities Not Exceeding The Maximum Allowable Quantity Per Control Area. The outdoor storage or use of highly toxic and toxic gases in amounts exceeding the maximum allowable quantity per control area set forth in Table 5004.3.1.1(4) shall be in accordance with Sections 5001, 5003, 6001, 6004.1, 6004.3.1.4 and 6004.3.1.5. Adopt Section 6004.3.1.4 of the 2016 California Fire Code to read as follows: 6004.3.1.4 Quantities not exceeding the minimum threshold quantity per control area. The outdoor storage or use of highly toxic, toxic and moderately toxic gases in amounts not exceeding the minimum threshold quantity per control area set forth in Table 6004.1 shall be in accordance with Sections 6001, 6004.1 and Chapter 50. Adopt Section 6004.3.1.5 of the 2016 California Fire Code to read as follows: 453 Council Agenda: November 1, 2016 Page: 72 Revision Date: -- 6004.3.1.5 Quantities exceeding the minimum Threshold Quantity per control area. The outdoor storage or use of highly toxic, toxic and moderately toxic gases in amounts exceeding the minimum threshold quantity per control area set forth in Table 6004.1 shall be in accordance with Sections 6001, 6004.3 and Chapter 50. Amend Section 6004.3.2 of the 2016 California Fire Code to read as follows: 6004.3.2 General outdoor requirements. The general requirements applicable to the outdoor storage and use of highly toxic, toxic and moderately toxic gases shall be in accordance with Sections 6004.3.2.1 through 6004.3.2.4. Moderately toxic gases with an LC50 equal to or less than 3000 parts per million shall comply with the requirements for toxic gases in Sections 5001, 5003, 6001, 6004.1 and 6004.3. Moderately toxic gases with an LC50 more than 3000 parts per million but not greater than 5000 parts per million and exceeding the maximum threshold quantity, as determined by 6004.1.6, shall comply with the requirements for toxic gases in Sections 5001, 5003, 6001, 6004.1 and 6004.3.2.1 through 6004.3.2.4. Moderately toxic gases shall not be considered as toxic gases for maximum allowable quantities determinations under Table 5003.1.1(4). Amend Section 6004.3.3 of the 2016 California Fire Code to read as follows: 6004.3.3 Outdoor Storage Weather Protection For Portable Tanks and Cylinders. Weather protection in accordance with Section 5004.13 shall be provided for portable tanks and cylinders located outdoors and not within gas cabinets or exhausted enclosures. The storage area shall b e equipped with an approved automatic sprinkler system in accordance with Section 5004.5. 16.40.440 Establishment of limits in which storage of liquefied petroleum gases is prohibited. The limits referred to in Section 6104.2 of the California Fire Code, in which storage of liquefied petroleum gas is restricted, are hereby established as all locations of the City of Cupertino that are residential or congested commercial areas. Exception: LPG may be used for industrial operations or when natural gas would not provide a viable substitute for LPG. Portable containers for temporary heating and/or cooking uses may be permitted if stored and handled in accordance with this code. Facilities 454 Council Agenda: November 1, 2016 Page: 73 Revision Date: -- in commercial areas for refueling portable or mobile LGP containers may be approved by the fire code official on a case by case basis. 16.40.450 Silane Distribution systems automatic shutdown. Adopt Section 6405.3.1 of the 2016 California Fire Code to read as follows: 6405.3.1 Silane distribution systems automatic shutdown. Silane distribution systems shall automatically shut down at the source upon activation of the gas detection system at levels above the alarm level and/or failure of the ventilation system for the silane distribution system. 16.40.460 Reference Standards. Adopt Chapter 80 of the 2016 California Fire Code with the following amendments: CGA C-7 (2014) Guide to Classification and Labeling of Compressed Gases . . . 5303.4.2, 5503.4.2 G-13 (2015) Storage and Handling of Silane and Silane Mixtures (an American National Standard) . . . . . . . . .6404.1, 6404.2, 6405.3 P-1 (2000) Safe Handling of Compressed Gases in Containers . . . . . . . 5305.7 ANSI/P-18 (2013) Standard for Bulk Inert Gas Systems . . . . . . . . . . . . . . . . . . 5501.1 S-1.1 (2011) Relief Device Standards – Part 1 – Cylinders for Compressed Gases . . . .5003.3.2, 5503.2 S-1.2 (2009) Pressure Relief Device Standards – Part 2 Portable Containers for Compressed Gases . . . . . . . . . . . . . . . . . . . . . . . . 5003.3.2, 5503.2 S-1.3 (2008) Pressure Relief Device Standards – Part 3 – Stationary Storage Containers for Compressed Gases . . . . . . . . . . . . 5003.3.2, 5503.2 V-1 (2013) Standard for Compressed Gas Cylinder Valve Outlet and Inlet Connections. . . . . . . . . . . . . . 3505.2.1 SECTION 8. Chapter 16.42 of Title 16 of the Cupertino Municipal Code is hereby repealed. SECTION 9. Section 16.54.010 of Chapter 16.54 of Title 16 of the Cupertino Municipal Code is hereby amended to read as follows: 455 Council Agenda: November 1, 2016 Page: 74 Revision Date: -- 16.54.010 Code Adoption. The provisions of the 2016 California Energy Code and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. One (1) copy of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and are made available for public inspection. SECTION 10. Section 16.58.010 of Chapter 16.58 of Title 16 of the Cupertino Municipal Code is hereby amended to read as follows: 16.58.010 Code Adoption. The provisions of the 2016 California Green Building Standards Code and each and all of the regulations, provisions, conditions and terms of the code is referred to as if fully set forth in this chapter, and is by such reference adopted. One (1) copy of the code therefore is on file in the office of the Building Official pursuant to Health and Safety Code Section 18942 and is made available for public inspection. SECTION 11. Section 16.58.015 of Chapter 16.58 of Title 16 of the Cupertino Municipal Code is hereby amended to read as follows: 16.58.015 Adoption of Appendix Chapters. No Appendix Chapters from the 2016 California Green Building Standards Code have been adopted. SECTION 12. Section 16.58.040 of Chapter 16.58 of Title 16 of the Cupertino Municipal Code is hereby amended to read as follows: 456 Council Agenda: November 1, 2016 Page: 75 Revision Date: -- 16.58.040 Local Amendments. The following provisions of this Chapter shall constitute local amendments to the cross- referenced provisions of the 2016 California Green Building Standards Code and shall be deemed to amend the cross-referenced sections of said Code with the respective provisions set forth in this Chapter. SECTION 13. Section 16.58.100 of Chapter 16.58 of Title 16 of the Cupertino Municipal Code is hereby amended to read as follows: 16.58.100 Section 101.10–Amended. Amend Section 101.10 to read as follows: 101.10 Mandatory requirements. This code contains mandatory green building measures. In addition, this Chapter contains required minimum green building measures as amended by the City of Cupertino. All new buildings and structures, additions, renovations and tenant improvements subject to requirements in Table 101.10 shall comply with the mandatory measures of the 2016 California Green Building Standards Code as adopted by the state in addition to local amendments included in this code, regardless of height or number of stories, unless specifically exempted by this code. SECTION 14. Section 16.80.040 of Chapter 16.80 of Title 16 of the Cupertino Municipal Code is hereby amended to read as follows: 16.80.040 Placards. The following are verbal descriptions of the official jurisdiction placards to be used to designate the condition for continued occupancy of buildings or structures. Copies of actual placards are attached in 'Exhibit A'. 1. INSPECTED – LAWFUL OCCUPANCY PERMITTED is to be posted on any building or structure wherein no apparent structural hazard has been found. This placard is not intended to mean that there is no damage to the building or structure. 2. RESTRICTED USE is to be posted on each building or structure that has been damaged wherein the damage has resulted in some form of restriction to the continued occupancy. The individual who posts this placard will note in general terms the type of damage encountered and will clearly and concisely note the restrictions on continued occupancy. 3. UNSAFE – DO NOT ENTER OR OCCUPY is to be posted on each building or structure that has been damaged such that continued occupancy poses a threat to life safety. Buildings or 457 Council Agenda: November 1, 2016 Page: 76 Revision Date: -- structures posted with this placard shall not be entered under any circumstance except as authorized in writing by the Building Official, or his or her authorized representative. Safety assessment teams shall be authorized to enter these buildings at any time. This placard is not to be used or considered as a demolition order. The individual who posts this placard will note in general terms the type of damage encountered. This ordinance number, the name of the jurisdiction, its address, and phone number shall be permanently affixed to each placard. Once it has been attached to a building or structure, a placard is not to be removed, altered or covered until done so by an authorized representative of the Building Official. It shall be unlawful for any person, firm or corporation to alter, remove, cover or deface a placard unless authorized pursuant to this section. 458 Council Agenda: November 1, 2016 Page: 77 Revision Date: -- Green Placard.pdf LAWFUL OCCUPANCY PERMITTED ADDRESS: ____________________________________________________ DATE: ___________ TIME: _________ This structure has been inspected as indicated below and no apparent structural hazard has been found: Inspected Exterior Only Inspected Exterior and Interior This facility was inspected under Emergency conditions for: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 (408) 777-3228 Inspector Comments: Caution: Aftershocks since inspection may increase damage and risk. Building Inspector: _______________________________ Do not Remove, Alter, or Cover this Placard until authorized by the Building Official (CMC Section 16.08.040 and California Penal Code Section 616) CITY OF CUPERTINO Community Development Department  Building Division | 10300 Torre Ave., Cupertino, CA 95014 | (408) 777-3228 | www.cupertino.org Copy to Green Paper 459 Council Agenda: November 1, 2016 Page: 78 Revision Date: -- Yellow Placard.pdf ADDRESS: ____________________________________________________ DATE: ___________ TIME: _________ This structure has been inspected and found to be damaged as described below: ____________________ This facility was inspected under Emergency conditions for: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 (408) 777-3228 Entry, occupancy, and lawful use are restricted as indicated below: ___________________________ Caution: Aftershocks since inspection may increase damage and risk. Building Inspector: _______________________________ Do not Remove, Alter, or Cover this Placard until authorized by the Building Official (CMC Section 16.08.040 and California Penal Code Section 616) CITY OF CUPERTINO Community Development Department  Building Division | 10300 Torre Ave., Cupertino, CA 95014 | (408) 777-3228 | www.cupertino.org Copy to Yellow Paper 460 Council Agenda: November 1, 2016 Page: 79 Revision Date: -- Red Placard.pdf DO NOT ENTER OR OCCUPY (THIS PLACARD IS NOT A DEMOLITION ORDER) ADDRESS: ____________________________________________________ DATE: ___________ TIME: _________ This structure presents immediate or imminent hazards to occupants and the public and is considered a "Dangerous Building" within the meaning of CMC Chapter 16.70. It must be vacated immediately, and may not be re-occupied unless corrected by rehabilitation or repair under a City issued building permit. This facility was inspected under Emergency conditions for: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 (408) 777-3228 If the following box is checked this structure must be boarded up and continuously secured against entry. Building Inspector: ____________________________ It is unlawful to enter this property after having being lawfully removed (California Penal Code 419). It is unlawful to intentionally remove, alter, cover, deface, obliterate, tear down, or destroy this Placard until authorized by th e Building Official (CMC Section 16.08.040 and California Penal Code Section 616). CITY OF CUPERTINO Community Development Department  Building Division | 10300 Torre Ave., Cupertino, CA 95014 | (408) 777-3228 | www.cupertino.org Copy to Red Paper 461 Council Agenda: November 1, 2016 Page: 80 Revision Date: -- SECTION 15: Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. SECTION 16: Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. SECTION 17: Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. SECTION 18: Continuity. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as amendments of the earlier provisions. INTRODUCED at a regular meeting of the Cupertino City Council the _____ day of __________2016 and ENACTED at a regular meeting of the Cupertino City Council on this _____ of __________ 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: ____________________________________ ____________________________________ Grace Schmidt, Barry Chang, City Clerk Mayor 462 RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF CUPERTINO MAKING FINDINGS RELATING TO LOCAL CLIMATIC, GEOGRAPHICAL, OR TOPOGRAPHCIAL CONDITIONS SUPPORTING AMENDMENTS AND CHANGES TO THE 2016 CALIFORNIA BUILDING STANDARDS CODE. WHEREAS, the City Council of the City of Cupertino, intends to pass an ordinance adopting the California Building Standards Code which consists of the 2016 editions of the California Building Code, Plumbing Code, Mechanical code, Electrical Code, Fire Code; the 1997 Uniform Housing Code, and making modifications and changes thereto; and WHEREAS, the California Health and Safety Code Sections 17958, 17958.5 and 17958.7 require the governing body of a city, before making any modification or changes to the California Building Standards Code, to make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions; and WHEREAS, as more specifically set forth in the memorandum of Albert Salvador, the City’s Building Official, a departure from the Building Standards Code is reasonably necessary due to local climatic, geological, or topographical conditions; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CUPERTINO THAT: 1. The City Council hereby finds the following facts to be true: A. The Bay Area region is a densely populated area with buildings constructed over and near a vast array of fault systems capable of producing major earthquakes, including, but not limited to the recent 1989 Loma Prieta Earthquake; 463 B. Cupertino is situated adjacent to active earthquake faults capable of producing substantial seismic events. The San Andreas and Sargent-Berocal faults run through the lower foothills and the Monta Vista Fault is closer to the valley floor area. The Hayward fault is North East of the City which would also presents a risk to Cupertino in the event of an earthquake; C. Vehicular traffic through Cupertino is significant, and continues to increase as Cupertino is an employment center as well as the location of residential projects; D. Cupertino is divided by major freeways and expressways, the occurrence of a major earthquake could impact the ability of fire crews to respond to emergencies should one or more of the freeways or expressways collapse, be substantially damaged, or become gridlocked; E. Fire suppression capabilities would be severely limited should the water system be damaged during an earthquake; F. Cupertino experiences low humidity, high winds and warm temperatures during the summer months creating conditions which are particularly conducive to the ignition and spread of grass, brush and structural fires; G. Cupertino’s topography contains remote, steep hillsides which further limits the ability of emergency responders to extinguish or control wildland or structural fires; H. The local geographic, topographic and climatic conditions require amendments to the California Codes to establish more restrictive conditions to improve structural integrity of the buildings in the event of a seismic incident and provide other protections to protect against the increased risk of fire. 2. The City Council hereby finds the following facts from prior exceptions to the Code to continue to be true: A. The waste water treatment facilities serving Silicon Valley cities are operating at or near maximum capacity. The discharge of treated waste water into San Francisco Bay is detrimental to its sensitive ecosystem; and B. Cooling coil and comfort cooling equipment condensate waste discharge does not contain pollutants which require treatment before being discharged into sanitary sewers or the ground. 464 3. Based on the above facts, the City Council makes the following finding: that Cupertino’s local geographic, topographic and climatic conditions require amendments to the California Codes to establish more restrictive conditions to improve structural integrity of the buildings in the event of a seismic incident, provide other protections to protect against the increased risk of fire, and protect the San Francisco Bay as more specifically set forth in the memorandum from Albert Salvador, the City’s Building Official and as summarized in the chart attached hereto as Exhibit A. 4. Based on the above finding, the City Council determines that it is necessary to make local amendments to the California Codes based upon the local conditions. ADOPTED this _____ day of ___________, 2016, by the following vote: AYES: NOES: ABSENT: DISQUALIFIED: BARRY CHANG Mayor ATTEST: GRACE SCHMIDT City Clerk 465 EXHIBIT A MATRIX TABLE FOR JUSTIFICATION AND FINDINGS FOR LOCAL AMENDMENTS MUNICIPAL CODE SECTION TITLE ADDED TO CALIF. CODE DELETED FROM CALIF. CODE AMENDED FROM CALIF. CODE JUSTIFICATION 16.02.010 through 16.02.030 These sections previously existed in the Municipal Code. X A 16.02.040 This section previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Building Code. X 16.02.050 This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Building Code. The California Building Code added language for Substantial Improvements in Flood Hazard zones. X 16.02.060 through 16.02.150 These sections previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Building Code. X 16.02.200 This section for submittal documents was added from the Administrative sections of the California Building Code. X 16.02.240 16.02.250 These sections previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Building Code. X 16.02.260 This section previously existed in the Municipal Code for inspection requirements but revised to include the entirety of Section [A] 110 of the 2016 California Building Code. X 466 16.02.270 through 16.02.300 These sections previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Building Code. X 16.04.010 This section previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Building Code. X 16.04.015 This section previously existed in the Municipal Code. This section modifies the CBC by adopting specific appendix chapters in the code. Only a reference change is made to reference the 2016 California Building Codes. X 16.04.050 Regulations for proper address identification already exist in the Municipal Code. The CBC, however, also has regulations regarding address identification. The adoption and revisions to Section 501.2 referenced in the Municipal Code brings Cupertino more in line with the model code. X 16.04.070 16.04.080 These sections previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Building Code. X 16.04.200 This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Building Code. Also, the municipal code section changed from 16.04.360 to 16.04.200. X D 16.04.210 This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Building Code. Also, the municipal code section changed from 16.04.370 to 16.04.210. X E 16.04.220 This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Building Code. Also, the municipal code section changed 467 from 16.04.340 to 16.04.220. Item 1 is not allowed is Cupertino’s Seismic Design category, D2. A 16.04.400 The swimming pool regulations in CBC Section 3109 is adopted to be consisted with the State Code and to be more uniform with surrounding jurisdictions. This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Building Code. X 16.06.010 This section previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Residential Code. X 16.06.015 This section previously existed in the Municipal Code. This section modifies the CBC by adopting specific appendix chapters in the code. Only a reference change is made to reference the 2016 California Residential Code. X 16.06.050 Fire sprinkler systems have been required by policy for the rebuild of existing homes. Clarification of this requirement is added in this section. Also, based on new requirements per Government Code Section 65852.2 for Accessory Dwelling Units, language has been added to waive Fire Sprinkler requirements for ADU's when the primary residence is not equipped with one. X 16.06.060 This amendment existed in the previous Municipal Code. Only a reference change is made to be consistent with the new section in the 2016 California Residential Code. X 16.06.070 No change other than minor reference changes were made to be consistent with the 2016 California Code. X 16.06.080 There is no change to this section, however, the findings for this amendment, introduced in the last code cycle, is included here for reference. X B 468 This proposed amendment to the CRC is made to be consistent with TUCC amendment that modifies the plain concrete provisions in CBC Section 1905.1.7 and ACI 318 Section 14.1.4. 16.06.090 & 16.06.100 No change other than minor reference changes were made to be consistent with the 2016 California Code. X A 16.06.110 This amendment existed in the previous Municipal Code. Only a reference change is made to be consistent with the new section and table in the 2016 CRC Code. The amendment modifies the CBC and CRC to limit the use of gypsum wallboard and Portland cement or stucco as shearwalls. The proposed amendment addresses the problem of poor performance of gypsum wallboard and Portland cement plaster as wall bracing materials in high seismic areas. This amendment reflects the recommendations by the Structural Engineers Association of Southern California (SEAOSC) and the Los Angeles City Joint Task Force that investigated the poor performance of these bracing materials that were observed in 1994 Northridge earthquake. X B 16.16.010 & 16.16.020 These sections previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Electrical Code. X A 16.16.030 Language from the previous code is revised to reflect when a general building contractors are allowed to do electrical work. The municipal code is now consistent with the requirements of the Business and Professions Code Section 7057(b). X 469 16.16.040 through 16.16.060 These sections previously existed in the Municipal Code with no change X 16.20.010 & 16.20.015 This section previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Plumbing Code. X 16.20.020 No change. X 16.20.080 This section currently exists in the Municipal Code. This section is being omitted based on Section 814 of the 2016 California Plumbing Code containing all listed requirements. X C 16.24.010 & 16.24.015 This section previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Mechanical Code. X A 16.24.020 No change. X 16.24.030 This section currently exists in the Municipal Code. This section is being omitted based on Section 310 of the 2016 California Mechanical Code containing all listed requirements. X C Chap 16.40 The entire Chapter (Chapter 16.40) is being repealed and replaced in its entirety. A 16.40.010 This section previously existed in the Municipal Code. Only a reference change is made to reference the 2016 California Fire Code based on the 2015 International Fire Code. X 16.40.015 This section previously existed in the Municipal Code. This section modifies the California Fire Code by adopting specific appendix chapters in the code. A reference change is made to reference the 2016 California Fire Code. X 16.40.060 This section previously existed in the Municipal Code. This section was renumbered from 16.40.065. A reference change is made to reference X 470 the 2016 California Fire Code. Also, inspection fees were updated to be more aligned with the current cost of service 16.40.070 This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Fire Code. X 16.40.080 16.40.120 16.40.130 This section previously existed in the Municipal Code. This section modifies the California Fire Code by adopting specific appendix chapters in the code. A reference change is made to reference the 2016 California Fire Code. X 16.40.140 16.40.150 These sections were not adopted by the Fire Prevention Officers and removed from ordinance. X 16.40.180 through 16.40.230 These sections previously existed in the Municipal Code. A reference change is made to reference the 2016 California Fire Code. X 16.40.300 through 16.40.355 There is nothing new in the Wildland Urban Interface Fire Area section other than a reference change is made to reference the 2016 California Fire Code. X 16.40.360 through 16.40.450 These sections previously existed in the Municipal Code. A reference change is made to reference the 2016 California Fire Code. X 16.40.460 Reference Standards, Chapter 80, was adopted per recommendation from Fire Preventions Officers. X Chap 16.42 This Chapter regarding Toxic Gases is repealed. These regulations now reside in Chapter 16.40. X A 16.54.010 This section previously existed in the Municipal Code. A reference change is made to reference the 2016 California Energy Code. X 16.58.010 16.58.015 16.58.040 These sections previously existed in the Municipal Code. A reference change is made to reference the 2016 California Green Building Standards Code. X 471 16.58.100 16.80.040 Red, Yellow, and Green Placards have been updated to include reference to applicable California Penal Code Sections. X 472 KEY TO JUSTIFICATIONS FOR AMENDMENTS TO TITLE 24 OF THE CALIFORNIA CODE OF REGULATIONS A This amendment is necessary for administrative clarification and does not modify a Building Standard pursuant to California Health and Safety Code Sections 17958. This amendment establishes administrative standards for the effective enforcement of building standards throughout the City of Cupertino. B This proposed amendment has been voted for approval by the local Tri-chapter Uniform Code Committee (TUCC) and addresses the problem of poor performance of plain or under-reinforced concrete footings during a seismic event. This amendment reflects the recommendations by the Structural Engineers Association of Southern California (SEAOSC) and the Los Angeles City Joint Task Force that investigated the poor performance of plain and under -reinforced concrete footings observed in 1994 Northridge earthquake and based on the following: 1. The San Francisco Bay area is densely populated and located in an area of high seismic activity. Cupertino is bounded by the Hayward and San Andreas faults capable of producing major earthquakes. 2. Concern for fire-life safety associated with a structural failure due to a seismic event considering the increasing number of buildings in the region, the use of new structural systems, the poor performance of certain materials, and the quality of construction. 3. Severe seismic events could disrupt communications, damage gas mains, cause extensive electrical hazards, and place extreme demands on the limited and widely dispersed resources of the Fire Department to meet the fire life-safety needs of the community. 4. The local geographic, topographic and climatic conditions pose an increase hazard in acceleration, spread, magnitude and severity of potential fires in the City of Cupertino, and may cause a delayed response from emergency responders, allowing further growth of the fire. C The waste water treatment facilities serving many silicon valley cities are operating at or near maximum capacity. The discharge of treated waste water into San Francisco Bay is detrimental to its sensitive ecosystem. Cooling coil and comfort cooling equipment condensate waste discharge does not contain pollutants which require treatment before being discharged into sanitary sewers or the ground. 473 D Results from studies after the 1994 Northridge earthquake indicated that a lot of the damages were attributed to lack of quality control during construction. The proposed amendment improves quality control during construction and therefore needs to be incorporated into the Code. Revise CBC Section 1705.3 exception No. 1 to allow special inspection n ot to be required for isolated spread footing where the structural design of the footing is based on a specified compressive strength, f’c, no greater than 2,500 psi. This proposed amendment is a continuation of an amendment adopted during the previous cod e adoption cycle. E ISSUE: Revise section 1905.1.7. ACI 318 Section 14.1.4 that allows the use of plain concrete in residential structures assigned to S eismic Design Category C, D, E or F. RATIONALE: The proposed amendment addresses the problem of poor performance of plain or under-reinforced concrete footings during a seismic event. This amendment reflects the recommendations by the Structural Engineers Association of Southern California (SEAOSC) and the Los Angeles City Joint Task Force that investigated the poor performance of plain and under-reinforced concrete footings observed in 1994 Northridge earthquake. 474 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1977 Name: Status:Type:Public Hearings Agenda Ready File created:In control:9/13/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Extension of the moratorium on the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino and the introduction of an ordinance amending Chapter 19.08, Definitions, of the Municipal Code to add definitions of “financial institutions” and “banks” that expressly exclude payday lending and check cashing businesses with the intent to disallow such uses from operating with the City of Cupertino. Application No(s): MCA- 2016-04; Applicant(s): City of Cupertino; Location: Citywide Sponsors: Indexes: Code sections: Attachments:Staff Report A - Draft Interim Urgency Ordinance No. 16-2156 B - Draft Ordinance No. 16-2157 C - Coalition Against Payday Preditors Letter (March 2016) D - Interim Urgency Ordinance No. 16-2152 E - Planning Commission Resolution No. 6818 F - Letter of Support from CAPP (October 2016) Action ByDate Action ResultVer. City Council11/1/20161 Subject:Extensionofthemoratoriumontheestablishment,expansion,orrelocationofpayday lendingandcheckcashingbusinesseswithintheCityofCupertinoandtheintroductionofan ordinanceamendingChapter19.08,Definitions,oftheMunicipalCodetoadddefinitionsof “financialinstitutions”and“banks”thatexpresslyexcludepaydaylendingandcheckcashing businesseswiththeintenttodisallowsuchusesfromoperatingwiththeCityofCupertino. Application No(s): MCA-2016-04; Applicant(s): City of Cupertino; Location: Citywide 1.EnactOrdinanceNo.16-2156:“AnInterimUrgencyOrdinanceoftheCityCouncilof theCityofCupertinoextendingaTemporaryMoratoriumontheestablishment,expansion, orrelocationofpaydaylendingandcheckcashingbusinesseswithintheCityofCupertino pending completion of an update to the City’s Zoning Code.” 2.ConductthefirstreadingofOrdinanceNo.16-2157:“AnOrdinanceoftheCityCouncil oftheCityofCupertinoAmendingtheCupertinoMunicipalCode,Title19,Zoning,Section 19.08.030,entitled“Definitions”toaddthedefinitionof“financialinstitutions”and“banks” toexpresslyexcludepaydaylendingandcheckcashingbusinesseswiththeintentto disallow such uses from operating with the City of Cupertino” CITY OF CUPERTINO Printed on 10/26/2016Page 1 of 1 powered by Legistar™475 1 OFFICE OF THE CITY MANAGER CITY HALL 10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3212 www.cupertino.org CITY COUNCIL STAFF REPORT Meeting: November 1, 2016 Subject Extension of the moratorium on the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino and introduction of an ordinance amending Chapter 19.08, Definitions, of the Municipal Code to add definitions of “financial institutions” and “banks” that expressly exclude payday lending and check cashing businesses with the intent to disallow such uses from operating with the City of Cupertino. (Application No(s): MCA-2016-04; Applicant(s): City of Cupertino; Location: City-wide) Recommended Action 1. Adopt Ordinance No. 16 – 2156, “An Interim Urgency Ordinance of the City Council of the City of Cupertino extending a Temporary Moratorium on the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino pending completion of an update to the City’s Zoning Code.” (Attachment A) 2. Conduct the first reading of Ordinance No. 16 - 2157, “An Ordinance of the City Council of the City of Cupertino Amending the Cupertino Municipal Code, Title 19, Zoning, Section 19.08.030, entitled “Definitions” to add the definition of “financial institutions” and “banks” to expressly exclude payday lending and check cashing businesses with the intent to disallow such uses from operating with the City of Cupertino.” (Attachment B) Background Payday loans are lending transactions in which a borrower provides a lender with a postdated check and receives immediate cash from the lender. The borrower's check includes not only the principal loan amount, but also any interest and fees charged by the lender. The lender then cashes the borrower's check on the borrower's next payday unless the loan has been repaid by that date. Payday loan businesses are not currently defined separately from other types of financial institutions or banks under the City’s Municipal Code, but have been considered analogous to these types of uses. 476 2 According to research shared by the Coalition Against Payday Predators (CAPP), payday lenders target people in desperate need of cash with ads for short-term credit products for use in emergencies with unusually high fees that end up trapping them in a cycle of crippling debt and poverty (see Attachment C.) Data from the California Department of Business Oversight’s 2016 Annual Report shows that:  Nearly 60% of borrowers earn less than $30,000 per year;  Payday loans carry average APRs of 366%;  76.2% of payday loan transactions are made to returning borrowers;  Payday loan borrowers are indebted for an average of five months per year; and  The average payday loan borrower takes out eight loans per year. The State currently regulates maximum loan amounts, fees, and other aspects of how payday lenders operate. However, local jurisdictions can legally enact local policies to restrict payday loan businesses from operating within their communities. The CAPP is urging local agencies to adopt ordinances to prevent the proliferation of payday lenders. Locally, the cities of San José, Sunnyvale, Gilroy, Morgan Hill, Campbell, and Los Altos, as well as the County of Santa Clara, have already adopted regulations concerning payday lenders. On September 20, 2016, Council enacted Interim Urgency Ordinance No. 16-2152, an interim urgency ordinance of the City Council of the City of Cupertino establishing a moratorium on the establishment, expansion, or relocation of payday lending and check-cashing businesses within the City of Cupertino pending completion of an update to the City's Zoning Code (Attachment D.) The Urgency Ordinance expires on November 4th. The Planning Commission reviewed recommendations for narrower definitions of “banks” and “financial institutions” which prohibit payday lenders and check cashing businesses from operating in Cupertino on October 11, 2016. The Planning Commission adopted Resolution No. 6818 on a 4-0 vote (Sun absent), recommending that the City Council approve the proposed draft ordinance (Attachment E.) They also suggested that the City explore prohibiting title lenders and other fringe financial services. Discussion Extension of Urgency Ordinance The current moratorium on payday lending and check cashing businesses expires on November 4, 2016, prior to Municipal Code amendments addressing this issue going into effect. The urgency ordinance may be extended for a period of 10 months and 15 days per Govt. Code § 65858(a), and could be further extended if necessary. Therefore, staff recommends an extension of Urgency Ordinance No. 16-2152 for 10 months and 15 477 3 days beyond November 4, 2016, or until the effective date of the regular ordinance, which is also on this Agenda. The extension provides a stop-gap measure to prevent new businesses until the regular ordinance is effective. Municipal Code Amendment In order to prohibit the establishment, expansion or relocation of payday lending and check-cashing businesses in zoning districts where financial institutions and banks are allowed within the City, staff recommends that definitions for “financial institutions” and “banks,” which specifically exclude payday lending and check cashing businesses, be added to the Zoning Code with this Municipal Code Amendment. By excluding such uses from the definitions, payday lending and check cashing businesses would be disallowed from operating within the city. Currently, there are no payday lenders operating in the City. Other No changes are recommended to disallow title lending or fringe financial services at this time, as requested by the Planning Commission, given this was not in the scope of the project. Upon direction of the Council, staff could present additional amendments to the Municipal Code, at a later date, should the Council wish to address these issue. Noticing and Public Outreach In compliance with the Government Code, the following noticing has been conducted:  Legal notice in the newspaper  Display ad in the newspaper  Public hearing notices/agenda on the City’s website and at City Hall/Community Hall. The CAPP has sent a letter of support for the changes recommended to the Municipal Code (Attachment F.) No other communication has been received on this issue as of the date of production of this staff report. Sustainability Impact No impact. Fiscal Impact No impact. Prepared by: Jaqui Guzmán, Assistant to the City Manager Piu Ghosh, Principal Planner Reviewed by: Aarti Shrivastava, Assistant City Manager 478 4 Approved for Submission by: David Brandt, City Manager Attachments: A. Draft Interim Urgency Ordinance No. 16-2156 B. Draft Ordinance No. 16-2157 C. Letter from CAPP (March 2016) D. Urgency Ordinance No. 2152 E. Planning Commission Resolution No. 6818 F. Letter of Support from CAPP (October 2016) 479 Urgency Ordinance Council Date: November 1, 2016 CITY OF CUPERTINO URGENCY ORDINANCE NO. 16-2156 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT, EXPANSION, OR RELOCATION OF PAYDAY LENDING AND CHECK CASHING BUSINESSES WITHIN THE CITY OF CUPERTINO PENDING COMPLETION OF AN UPDATE TO THE CITY’S ZONING CODE. The City Council of the City of Cupertino does hereby ordain as follows: SECTION 1. Authority. This Ordinance is adopted pursuant to the provisions set forth in Government Code sections 36937(b) and 65858(a), (b) and pursuant to other applicable law. SECTION 2. Findings. In adopting this Ordinance, the City Council finds: A. The inability of low-income consumers with poor credit history to obtain certain services from federally-insured banks has resulted in a two-tiered financial services industry. More financially-stable consumers are generally able to use traditional banks, which charge low fees for checking and issue loans regulated by the federal government, while lower-income, financially-vulnerable consumers often have to rely upon the alternative financial services (AFS) industry for the same services. Payday lending and check cashing businesses are part of the growing AFS industry. B. Payday lending businesses typically offer small, 14-day loans for which they charge effective interest rates upwards of 460% annual percentage rate (APR). California law currently caps individual payday loans at $300, from which a 15% fee can be deducted. As a result, payday lending businesses in California generally charge $45 for a two-week $300 loan. According to a 2007 survey conducted by the California Department of Corporations, 48% of payday loan borrowers in California take out payday loans at least once per month. Because payday loan consumers tend to engage in cyclical borrowing, research has demonstrated that the typical borrower ultimately pays $800 for a $300 loan. C. Check cashing outlets cash checks for a large fee, a significant percentage of the amount of the check, or deposit funds onto prepaid debit cards that incur a per-transaction fee. The fees withdrawn from cashed checks are generally 480 Urgency Ordinance Council Date: November 1, 2016 significantly higher than the fees that would be charged by most federally-insured banks. D. With limited state and federal legislation restricting payday lending and check cashing, the growth of these industries has been extremely rapid. Since 1997, when payday lending became legal in California more than 2,000 payday lending businesses have been established. In 2010, California payday lenders issued $12 million in loans to 1.6 million borrowers. The check cashing industry has experienced similarly rapid growth. A study by the Consumer Federation of America found that the check cashing industry doubled in size between 1994 and 2000, and again between 2000 and 2005. E. The proliferation of these businesses has had significant detrimental effects on the financial stability of low-income communities throughout California and low-income neighborhoods in the surrounding cities. These businesses operate almost exclusively low-income neighborhoods and prey upon the most financially vulnerable community members, drawing them into a cycle of debt or causing them to lose a significant share of their income to exorbitant fees for simple financial transactions. F. The City of Cupertino Zoning Code (Cupertino Municipal Code Chapter 19) does not adequately regulate the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino. G. In light of the foregoing, the City Council finds that the establishment, expansion or relocation of payday lending and check cashing businesses within the City of Cupertino presents a current and immediate threat to public health, safety and welfare. The City Council further finds that a temporary moratorium on the establishment, expansion or relocation of payday lending and check cashing businesses within the City of Cupertino is warranted so that the City Council may review and consider possible amendments to the City of Cupertino Zoning Code to address this threat on a permanent basis. H. Government Code sections 36937 and 65858 authorize the adoption of an interim urgency ordinance to protect the public health, safety, and welfare, and to prohibit land uses that may conflict with land use regulations that a city’s legislative bodies are considering, studying, or intending to study within a reasonable time. I. Failure to adopt this moratorium could impair the orderly and effective implementation of contemplated amendments to the Municipal Code. 481 Urgency Ordinance Council Date: November 1, 2016 J. The proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment; and before taking action on this Ordinance, using its independent judgment, finds such CEQA exemptions to apply; SECTION 3. Extension of Moratorium. In order to protect the public health, safety and welfare, the City finds that it is necessary to extend the Urgency Ordinance and prohibitions imposed by Ordinance No. 16-2152 on the establishment, expansion, or relocation of any payday lending business or check cashing business within the City of Cupertino. SECTION 4. Effective Period. This Ordinance is an extension of Ordinance No. 16-2152, an urgency measure adopted pursuant to the provisions of Government Code Section 65858. This Ordinance shall be in effect until the earlier of the following, and shall thereupon be repealed and of no further force or effect, unless extended by subsequen t enactment of the City Council: i) The completion of the study, evaluation, consideration, and legislative action and effective date of the amendments to Cupertino Municipal Code, Title 19, Zoning, to address payday lending and check cashing facilities on a permanent basis, or ii) Ten months and fifteen days beyond November 4, 2016. SECTION 5: Report of Interim Moratorium. Ten days prior to the expiration of Urgency Ordinance No. 16-2152, the City provided a report describing the measures taken to alleviate the urgency pursuant to Government Code section 65858(d). Further, 10 days prior to the expiration or any extension of this Interim Ordinance, the City Council will issue a written report describing the measures taken to alleviate the conditions which led to the adoption of this Interim Ordinance. SECTION 6. Severability. The City Council hereby declares every section, paragraph, sentence, cause and phrase is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such 482 Urgency Ordinance Council Date: November 1, 2016 invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses or phrases. SECTION 7: Publication. The City Clerk is directed to cause this ordinance to be published in the manner required by law. THE FOREGOING EXTENSION OF THE URGENCY ORDINANCE was introduced and adopted at a regular meeting of the City Council of the City of Cupertino held on November 1, 2016, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ___________________________________ Barry Chang, Mayor, City of Cupertino ATTEST: CITY OF CUPERTINO Grace Schmidt, City Clerk I, GRACE SCHMIDT, CITY CLERK of the City of Cupertino, California, do hereby certify that the foregoing Urgency Ordinance was duly adopted and passed at a regular meeting of the City Council on the 1st day of November, 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Grace Schmidt, City Clerk 483 Urgency Ordinance Council Date: November 1, 2016 APPROVED AS TO FORM: ____________________, City Attorney 484 CITY OF CUPERTINO ORDINANCE NO. 16- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING SECTION 19.08.030 OF CHAPTER 19.08 OF TITLE 19 OF THE CUPERTINO MUNICIPAL CODE ADDING DEFINITIONS OF “FINANCIAL INSTITUTIONS” AND “BANKS” THAT EXPRESSLY EXCLUDE PAYDAY LENDING AND CHECK CASHING BUSINESSES WITH THE INTENT TO DISALLOW SUCH USES FROM OPERATING WITHIN THE CITY OF CUPERTINO WHEREAS, the Ordinance amendments set forth below further the goals and policies of the City's General Plan and are necessary to promote the health, safety and welfare of the City; and WHEREAS, the City Council does find that payday lenders are predatory businesses that target people in desperate need of cash and charge unusually high interest rates and exorbitant fees that end up trapping borrowers in a cycle of crippling debt and poverty; and WHEREAS, the City Council does find that the State regulates maximum loan amounts, fees, and other aspects of how payday lenders operate, however, local jurisdictions can enact local policies to restrict payday loan businesses from operating within their communities through the use of its police power; and WHEREAS, the City Council finds that payday lenders and cash checking businesses are predatory businesses that target people in a financially vulnerable situation and charge exorbitant fees and high interest rates; WHEREAS, the Planning Commission has reviewed the amendments to the Municipal Code at a duly noticed public hearing held on October 11, 2016 where the public had an opportunity to comment at which the Commission adopted Planning Commission Resolution No. 6818 by a 4-0 vote (Sun absent) recommending that the City Council adopt the amendments; WHEREAS, a duly noticed public hearing was held on November 1, 2016 at which the public had an opportunity to speak on this matter; and WHEREAS, the proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is 485 subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. WHEREAS, the City Council has reviewed and considered the “not a project” determination under the California Environmental Quality Act prior to taking any approval actions on this Ordinance and approves such determinations; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: SECTION 1. Section 19.08.030(B), “’B’ Definitions”, of Chapter 19.08 of Title 19 of the Cupertino Municipal Code is hereby amended to add the definition of “banks” to be inserted into the definitions in alphabetical order and to read as follows: “banks” means financial institutions including federally-chartered banks, savings and loan associations, industrial loan companies, and credit unions providing retail banking services to individuals and businesses. This classification does not include payday lending businesses or check cashing businesses. The term "payday lending business" as used herein means retail businesses owned or operated by a "licensee" as that term is defined in California Financial Code Section 23001(d), as amended from time to time. The term "check cashing business" as used herein means a retail business owned or operated by a "check casher" as that term is defined in California Civil Code Section 1789.31 as amended from time to time. SECTION 2. Section 19.08.030(F), “’F’ Definitions”, of Chapter 19.08 of Title 19 of the Cupertino Municipal Code is hereby amended to add the definition of “financial institutions” to be inserted into the definitions in alphabetical order and to read as follows: “financial institutions” means a company engaged in the business of dealing with monetary transactions, such as deposits, loans, investments and currency exchange. This classification does not include payday lending businesses or check cashing businesses. The term "payday lending business" as used herein means retail businesses owned or operated by a "licensee" as that term is defined in California Financial Code Section 23001(d), as amended from time to time. The term "check cashing business" as used herein means a retail business owned or operated by a "check casher" as that term is defined in California Civil Code Section 1789.31 as amended from time to time. 486 SECTION 3. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. SECTION 4. Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. SECTION 5. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. SECTION 6. Continuity. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as amendments of the earlier provisions. INTRODUCED at a regular meeting of the Cupertino City Council the 1st day of November, 2016 and ENACTED at a regular meeting of the Cupertino City Council on this 6th of December, 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor Barry Chang, City of Cupertino 487 To: Mayor Barry Chang, City of Cupertino From: Melissa A. Morris, Senior Attorney, Public Interest Law Firm, Law Foundation of Silicon Valley Re: Payday Lending Ordinance Policy Parameters Date: March 3, 2016 MEMORANDUM REGARDING LAND USE ORDINANCE ADDRESSING FRINGE FINANCIAL SERVICES This memo1 was prepared by Public Interest Law Firm on behalf of CAPP, the Coalition Against Payday Predators, to provide information about and recommendations for an ordinance to prevent the proliferation of payday lenders in Cupertino. In compiling this memo, we conducted extensive research on similar ordinances in other jurisdictions and on the legal implications of a variety of ordinance options. We provide general information, as well as our own recommendations, below. INTRODUCTION2 Payday loans are lending transactions in which a borrower provides a lender with a post- dated check and receives immediate cash from the lender. The borrower’s check includes not only the principal loan amount, but also any interest and fees charged by the lender. The lender then cashes the borrower’s check on the borrower’s next payday unless the loan has been repaid by that date. Payday loans, sometimes called deferred deposit transactions or cash advances, comprise one corner of a larger universe of “alternative” or “fringe” financial services, which also include check cashing services, pawn brokers, and rent-to-own stores.3 In California, payday loans are small-dollar loans; state law caps them at $300.4 However, these loans, including the relatively large fees associated with them, must be repaid quickly; the average term of a payday loan is 16 1 An earlier version of this memo was provided to Cupertino City Councilmembers and staff in June 2015. This version has been updated to include more recent statistics from the Department of Business Oversight, as well as information regarding Campbell’s payday lending ordinance, which was passed in January 2016. 2 In 2009, Public Interest Law Firm published its Report on the Status of Payday Lending in California, commissioned by the Silicon Valley Community Foundation (available at http://www.siliconvalleycf.org/docs/payday-lending-report.pdf); much of the text in this section is taken from that report. More recently, the Pew Charitable Trusts has published reports and analyses in its Payday Lending in America series (available at http://www.pewstates.org/research/featured-collections/payday-lending-in-america- 85899405692). 3 See, e.g., Sharon Hermanson and George Gaberlavage, “The Alternative Financial Services Industry,” AARP Public Policy Institute (Aug. 2001) (available at http://www.aarp.org/research/credit-debt/credit/aresearch-import- 198-IB51.html). The San Francisco Municipal Code also uses the term “fringe financial services” to refer to these types of establishments. San Francisco Muni. Code § 790.111. 4 Cal. Fin. Code, § 23035, subd. (a). 488 2 days.5 Due to this short repayment timeframe, payday loans carry average APRs6 of over 360 percent.7 Payday lending is widespread in California. In 2014, over 1.8 million Californians were issued payday loans.8 Although payday loans are advertised as short-term credit products for use in emergencies, data show that most payday loan borrowers are unable to repay their loans in lump sum and that payday loan borrowers are indebted for an average of five months per year.9 Further, the average payday loan borrower takes out eight loans per year, “often renewing an existing loan or taking out a new loan within days of repaying the previous one.”10 In 2012, over a quarter of all California payday loan borrowers took out 10 or more payday loans in that year alone.11 Payday lenders and other fringe financial services tend to be more densely concentrated in lower-income areas and communities of color.12 One study found that “[e]ven after controlling for income and a variety of other factors, payday lenders are 2.4 times more concentrated in African American and Latino communities. On average, controlling for a variety of relevant factors, the nearest payday lender is almost twice as close to the center of an African American or Latino neighborhood as a largely white neighborhood.”13 Cupertino does not have any payday lenders currently. We encourage the City to adopt regulations to prevent payday lenders from locating in Cupertino. STATE REGULATION OF PAYDAY LENDERS In California, payday lenders are governed by the Deferred Deposit Transaction Law (Fin. Code, §§ 23000 et seq.) and by regulations promulgated by the Department of Business 5 California Department of Business Oversight. Annual Report: Operation of Deferred Deposit Originators Licensed Under the California Deferred Deposit Transaction Law (2014) 4 (available athttp://www.dbo.ca.gov/Licensees/Payday_Lenders/Publications.asp). 6 The APR, or Annual Percentage Rate of Interest, was developed by Congress “as a standard measure that calculates the simple interest rate on an annual basis (including most fees), accounts for the amount of time the borrower has to repay the loan, and factors in the reduction in principal as payments are made over time.” Center for Responsible Lending, “APR Matters on Payday Loans” (June 23, 2009) (available at http://www.responsiblelending.org/payday-lending/research-analysis/apr-matters-on-payday-loans.html). 7 California Department of Business Oversight. Annual Report: Operation of Deferred Deposit Originators Licensed Under the California Deferred Deposit Transaction Law (2013) 8 (available at http://www.dbo.ca.gov/Licensees/Payday_Lenders/Default.asp). 8 Id. at 6. 9 The Pew Charitable Trusts, Payday Lending in America: Who Borrows, Where They Borrow, and Why (Jul. 2012), 6 (available at http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Pew_Payday_Lending_Report.pdf). 10 Id. at 9. 11 California Department of Business Oversight, Summary Report: California Deferred Deposit Transaction Law— Industry Survey (2013) 6 (available at http://www.dbo.ca.gov/Licensees/Payday_Lenders/Default.asp). 12 See, e.g., Brookings Institution, “From Poverty, Opportunity: Putting the Market to Work for Lower Income Families,” (2006) (available at http://www.brookings.edu/reports/2006/07poverty_fellowes.aspx). 13 Wei Li, et al., “Predatory Profiling: The Role of Race and Ethnicity in the Location of Payday Lenders in California,” Center for Responsible Lending (Mar. 26, 2009), 25 (available at http://www.responsiblelending.org/payday-lending/research-analysis/predatory-profiling.pdf). 489 3 Oversight (Cal. Code Regs., tit. 10, ch. 3). These laws govern the maximum loan amounts, fees, and other aspects of how payday lenders operate. Because California has adopted this comprehensive regulatory scheme, local jurisdictions are prohibited from regulating the terms of payday loans under the legal doctrine of preemption. However, local jurisdictions are legally permitted to enact local policies that combat the proliferation of payday lenders in their communities and the overconcentration of these types of businesses in low-income and minority neighborhoods, as well as the blight, nuisance, and other problems caused by payday lending stores. Silicon Valley voters are in favor of such local measures according to a 2010 poll, which found that an overwhelming majority of respondents supported restrictions on payday lenders, and over half believed that such restrictions were appropriate actions for city government.14 Locally, the cities of San José, Sunnyvale, Gilroy, Morgan Hill, Campbell, and Los Altos, as well as the County of Santa Clara, have already adopted regulations concerning payday lenders. Some of these jurisdictions, including Los Altos and Gilroy, have taken the approach of instituting temporary moratoria on new payday loan stores while they study the impacts of payday lending on the local community, followed by permanent restrictions. Others, like San José and Sunnyvale, have adopted permanent regulations without first imposing temporary moratoria. This memo discusses the range of options for both temporary and permanent regulations, as well as CAPP’s recommendations for the City of Cupertino. COVERED ENTITIES This memo contemplates only payday loan stores. However, many jurisdictions regulate check cashing outlets and other fringe financial services in the same ordinances that they use to regulate payday loans. Cupertino’s Zoning Code does not appear to address payday lenders or check cashers explicitly. In considering how best to regulate payday loan stores, the City could consider imposing additional restrictions on check cashers, car title lenders, and other fringe financial services as well. TEMPORARY CITYWIDE MORATORIUM WITH STUDY PERIOD Many cities, including Sacramento, San Francisco, Los Altos, Morgan Hill, and Gilroy, have passed temporary citywide moratoria on the establishment of new payday lenders, check cashers, and/or other fringe financial services, in order to study the impact of these types of businesses on the surrounding community.15 California law authorizes cities to adopt an “interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time.”16 Such an 14 Goodwin & Simon Strategic Research, San José Payday Loan Store Restrictions Survey (Dec. 2010) (available at http://www.responsiblelending.org/california/ca-payday/research-analysis/San-Jose-Payday-Lending-Voter-Poll- Memo.pdf). 15 See e.g., Sacramento Ord. Nos. 2007-080, 2007-089; San Francisco Ord. Nos. 0001-06, 0034-06, 0115-06; Gilroy Ord. No. 2013-07. 16 Gov. Code, § 65858, subd. (a). 490 4 ordinance may remain in effect for no more than 45 days from its date of adoption, and may either be adopted as an urgency measure or pursuant to the procedural requirements of Government Code, section 95090.17 If the interim ordinance is adopted as an urgency measure, it may later be extended for 10 months and 15 days, and then for a year, as long as proper notice is provided and procedure is followed for each extension.18 If the interim ordinance is adopted following the procedures of Government Code section 65090, then it may later be extended for 22 months and 15 days, as long as proper notice is provided and procedure is followed.19 Both the adoption and the extension of the interim ordinance require a 4/5 vote, as well as a finding that “there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.”20 A temporary moratorium can be a powerful tool, especially if a city needs time to develop the necessary findings to support permanent land use regulations. However, if the city already has sufficient information to impose long-term regulations, it may move forward with those regulations without enacting such a moratorium with a study period. PERMANENT ORDINANCE RECOMMENDATIONS Cities are able to restrict the proliferation of payday lenders through their planning and zoning power, which allows cities to regulate particular uses in order to prevent nuisance and to promote the public welfare. Below are some examples of the types of regulations that have been adopted, both in Santa Clara County and elsewhere in California. Creating a Zoning Category for Payday Lenders Cupertino’s Zoning Code does not currently define or regulate payday loan stores separately from other uses; based on the definitions section of the Zoning Code, payday loan stores would most likely be categorized as retail business or commercial office uses.21 As such, any ordinance regulating payday lenders must amend the Zoning Code to include payday lenders as a regulated use. Permanent Ban on New Payday Lenders Some jurisdictions, such as Santa Clara County,22Los Altos,23 Gilroy24, and, most recently, Morgan Hill have instituted permanent bans on new payday lenders locating within the jurisdiction; we recommend this approach. For example, Santa Clara County and Gilroy 17 Gov. Code, § 65858, subd. (a), (b). 18 Gov. Code, §§ 65090, 65858, subd. (a). 19 Gov. Code, §§ 65090, 65858, subd. (b). 20 Gov. Code, § 65858, subd. (a)-(c). 21 Cupertino Mun. Code, § 19.60.030. 22 Santa Clara County Ord. Code, § 2.10.040, subd. (6). 23 Los Altos Mun. Code, § 14.02.070. 24 Gilroy Ord. No. 2014-01. 491 5 amended their zoning codes’ definitions of “Banks” to explicitly exclude check cashing and payday lending businesses. With that exclusion in place, both jurisdictions stated that the “establishment, expansion, or relocation of such businesses is prohibited.”25 Like Cupertino, Los Altos and Santa Clara County had zero payday lenders within their boundaries when they imposed bans on new payday lenders, meaning that payday lending is effectively outlawed in those jurisdictions. Cupertino should do the same. Caps on the Number of Payday Lenders A second approach would be for the City to adopt a numerical cap on the number of payday lenders in Cupertino. Several cities have placed caps on the number of payday lenders that can locate within their city limits. In 2012, San José became the largest city in the nation to impose such a cap, limiting the number of payday lenders in the city to 39, the number that were in operation at the ordinance’s adoption.26 More recently, Sunnyvale imposed a cap of 6 payday lenders in the city, 2 below the 8 that exist, 27 and Campbell imposed a cap of 3, one fewer than the 4 that exist currently.28 This approach makes the most sense in cities that have existing payday lenders but want to prevent their further proliferation. Since Cupertino does not have any existing payday lenders, a cap of any number greater than zero would allow new payday lenders to establish themselves in the City. As such, a cap is unlikely to be as effective as an outright ban. Geographic Restrictions In addition to, or in lieu of, outright bans and caps, many cities have imposed permanent restrictions that exclude payday lenders and check cashers from certain zoning districts or neighborhoods. The rationale behind these types of restrictions is to limit the proliferation of such businesses in areas where their existence runs contrary to the stated purpose of the district (e.g., in residentially zoned areas) or to keep new payday lenders or check cashers from opening in areas that already have an overconcentration of these types of businesses. Based on the types of distance requirements imposed in other cities—including Sunnyvale, East Palo Alto, Daly City, Sacramento, Oakland, and San Francisco29—Cupertino could ban new payday lenders from siting within: • A quarter mile (1320 ft.) of existing payday lenders or check cashers; • 500 feet of any residential use or residentially zoned parcel; • 1000 feet of any school, park, playground, church or religious facility, or child care or preschool facility; 25 Santa Clara County Ord. Code, § 2.10.040, subd. (6); Gilroy Ord. No. 2014-01. 26 San José Mun. Code, § 20.80.1060. 27 Sunnyvale Mun. Code, § 19.20.050, subd. (b). 28 Campbell Res. No. 11930 (2016). 29 Sunnyvale’s Planning Commission recently adopted staff’s recommendation to prohibit new payday lending establishments outside of the highway business commercial zone and within 1000 feet of an existing outlet. See Sunnyvale Staff Report, supra, at p. 7. 492 6 • 500 feet of banks, savings associations, or credit unions; and/or • 1000 feet of liquor stores. Other cities have banned payday lenders from certain census tracts or neighborhoods, based either on the overconcentration of payday lenders in those areas or based on the vulnerability of the population to predatory lending practices. For example, San José, in addition to its numerical cap, also prohibits new payday lenders from locating in or near very-low-income census tracts.30 Similarly, San Francisco established a Fringe Financial Service Restricted Use District, which excludes new payday lenders and check cashers from locating in certain neighborhoods based on the over-proliferation of such uses.31 Cupertino currently has similar distance requirements on adult-oriented businesses.32 If Cupertino opts for this strategy in lieu of an outright ban, it could allow payday lenders to locate only in zones where other commercial uses are permitted; impose distance requirements; and require a permit, as discussed below. Use Permit Many cities have imposed special or conditional use permit requirements on new payday lenders.33 If Cupertino opts not to ban new payday lenders altogether, Cupertino could likewise require a conditional use permit for any payday lender locating in the city. Cupertino requires conditional use permits for a variety of uses, including the concurrent sale of alcoholic beverages and gasoline, so such an approach would be consistent with the larger zoning scheme.34 Based on permitting schemes adopted by other cities, Cupertino could impose the following types of requirements as conditions of use permits for payday lenders: • Restricted hours of operation (Sunnyvale, East Palo Alto, Oakland, and Sacramento have established 7:00 a.m. to 7:00 p.m. unless other hours are approved in the conditional use permit35); • Good neighbor policy; • Lighting plan; • Sign plan that conforms with Cupertino’s sign ordinance36; and • Graffiti removal. Requirement to Provide Information About Non-Predatory Alternatives 30 San Jose Mun. Code, § 20.80.1055. 31 San Francisco Mun. Code, § 249.35. 32 Cupertino Mun. Code, § 19.128. 33 See, e.g., Sunnyvale Ord. No. 3002-13. 34 See Cupertino Mun. Code, § 19.132. 35 Sunnyvale Mun. Code, § 19.20.050, subd. (a)(2); Oakland Planning Code, § 17.102.430, subd. (A)(3)(c); Sacramento City Code § 17.24.050, n. 84. 36 Cupertino Mun. Code, § 19.104. 493 7 If Cupertino opts not to ban payday lenders, it could require payday loan stores to post information about alternatives to payday loans. To our knowledge, Sunnyvale became the first California city to create such a requirement when it adopted its ordinance in 2013. State law requires payday lenders to include a notice with the following information each time they issue a payday loan: (1) Information about charges for deferred deposit transactions; (2) That if the customer’s check is returned unpaid, the customer may be charged an additional fee of up to $15; (3) That the customer cannot be prosecuted or threatened with prosecution in a criminal action in conjunction with a deferred deposit transaction for a returned check; (4) The Department of Corporations’ toll-free telephone number for receiving calls regarding customer complaints and concerns; (5) That the licensee may not accept any collateral in conjunction with a deferred deposit transaction; and (6) That the check is being negotiated as part of a deferred deposit transaction made pursuant to Section 23035 of the Financial Code and is not subject to the provisions of Section 1719 of the Civil Code. No customer may be required to pay treble damages if this check does not clear.37 While this notice is important and useful, it does not include information about alternatives to this very expensive, predatory product. We believe consumers should have this information before starting down the hazardous road of taking out a payday loan. Sunnyvale’s ordinance further requires: At least one sign (minimum four square feet) shall be posted in the business that is clearly visible to patrons from the entrance of the store with information on alternatives to payday loans. The exact language for the sign will be uniform and created by the Community Development Director. All payday lending establishments will be subject to comply with this operational standard six months after the adoption of this ordinance.38 CAPP recommends that Cupertino enact such a requirement for its payday loan stores. CAPP partners, including West Valley Community Services, would be happy to work with the City to compile the information for the sign. Even if Cupertino elects not to require such a sign or flyer at payday loan stores, the City could produce the flyer and distribute it through its usual channels for distributing information to 37 Fin. Code, § 23025, subd. (c). 38 Sunnyvale Mun. Code, §19.20.050, subd. (c)(3). 494 8 the public: e.g., publication in City offices, inclusion in email alerts, and promotion at City events. In our experience, the more consumers know about alternatives to payday lending, and the more accessible those alternatives are, the less likely they are to become trapped in the cycle of payday loan debt. Policies to Encourage the Development of Alternatives We recommend that Cupertino adopt a resolution encouraging the development of non- predatory alternatives to payday loans and consider policies that incentivize the development of non-predatory alternatives. One option would be to create incentives, such as incentives related to ATM placement, for credit unions that offer small-dollar loan products to their members.39 Other cities have considered other incentives, such as the express exemption of non-profit services from local regulation of payday lenders; for example, San Francisco specifically exempts non-profit fringe financial services providers from its ordinance.40 Such incentives should be carefully tailored to encourage credit alternatives that are affordable (i.e., whose interest rate is lower than 36 percent APR) but not to open the door for other financial products with costly or deceptive terms. CAPP members can provide input on policy options based on our experience in other jurisdictions. Support Statewide Legislation and Federal Regulation Because the substance of payday loans is regulated by the state, state legislation has the potential to establish meaningful consumer protections. For example, the Consumer Financial Protection Bureau is expected to propose regulations for payday lenders later this spring, and the City could weigh in to support strong consumer protections. CONCLUSION CAPP encourages Cupertino to adopt a ban on the establishment of new payday loan stores in the City. We further encourage the City to consider adopting incentives to encourage the development of non-predatory alternatives to payday loans and to support statewide and federal policies that will limit the harmful impact of payday loans on California consumers. CAPP partners are available to discuss all of the above options with City staff and policymakers. We look forward to working with the City to develop policies that are effective and appropriate for Cupertino. 39 Credit unions are prohibited by the National Credit Union Administration’s rules from charging more than 28 percent APR. See http://www.mycreditunion.gov/what-credit-unions-can-do/Pages/Short-Term-Loans.aspx. 40 San Francisco Planning Code, § 249.35, subd. (d). 495 URGENCY ORDINANCE NO. 16-2152 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ESTABLISHING A MORATORIUM ON THE ESTABLISHMENT, EXP ANSI ON, OR RELOCATION OF PAYDAY LENDING AND CHECK CASHING BUSINESSES WITHIN THE CITY OF CUPERTINO PENDING COMPLETION OF AN UPDATE TO THE CITY'S ZONING CODE. The City Council of the City of Cupertino does hereby ordain as follows: SECTION 1. Authority. This Ordinance is adopted pursuant to the provisions set forth in Government Code sections 36937(b) and 65858(a), (b) and pursuant to other applicable law. SECTION 2. Findings. In adopting this Ordinance, the City Council finds: A. The inability of low-income consumers with poor credit history to obtain certain services from federally-insured banks has resulted in a two-tiered financial services industry. More financially-stable consumers are generally able to use traditional banks, which charge low fees for checking and issue loans regulated by the federal government, while lower-income, financially-vulnerable consumers often have to rely upon the alternative financial services (AFS) industry for the same services. Payday lending and check cashing businesses are part of the growing AFS industry. B. Payday lending businesses typically offer small, 14-day loans for which they charge effective interest rates upwards of 460% annual percentage rate (APR). California law currently caps individual payday loans at $300, from which a 15% fee can be deducted. As a result, payday lending businesses in California generally charge $45 for a two-week $300 loan. According to a 2007 survey conducted by the California Department of Corporations, 48% of payday loan borrowers in California take out payday loans at least once per month. Because payday loan consumers tend to engage in cyclical borrowing, research has demonstrated that the typical borrower ultimately pays $800 for a $300 loan. C. Check cashing outlets cash checks for a large fee, a significant percentage of the amount of the check, or deposit funds onto prepaid debit cards that incur a per-transaction fee. The fees withdrawn from cashed checks are generally significantly higher than the fees that would be charged by most federally-insured banks. 496 Ordinance No . 16-2152 Page 2 D. With limited state and federal legislation restricting payday lending and check cashing, the growth of these industries has been extremely rapid. Since 1997, when payday lending became legal in California more than 2,000 payday lending businesses have been established. In 2010, California payday lenders issued $12 million in loans to 1.6 million borrowers. The check cashing industry has experienced similarly rapid growth. A study by the Consumer Federation of America found that the check cashing industry doubled in size between 1994 and 2000, and again between 2000 and 2005. E. The proliferation of these businesses has had significant detrimental effects on the financial stability of low-income communities throughout California and low-income neighborhoods in the surrounding cities. These businesses operate almost exclusively low-income neighborhoods and prey upon the most financially vulnerable community members, drawing them into a cycle of debt or causing them to lose a significant share of their income to exorbitant fees for simple financial transactions. F. The City of Cupertino Zoning Code (Cupertino Municipal Code Chapter 14) does not adequately regulate the establishment, expansion, or relocation of payday lending and check cashing businesses within the City of Cupertino. G. In light of the foregoing, the City Council finds that the establishment, expansion or relocation of payday lending and check cashing businesses within the City of Cupertino presents a current and immediate threat to public health, safety and welfare. The City Council further finds that a temporary moratorium on the establishment, expansion or relocation of payday lending and check cashing businesses within the City of Cupertino is warranted so that the City Council may review and consider possible amendments to the City of Cupertino Zoning Code to address this threat on a permanent basis. H. Government Code sections 36937 and 65858 authorize the adoption of an interim urgency ordinance to protect the public health, safety, and welfare, and to prohibit land uses that may conflict with land use regulations that a city's legislative bodies are considering, studying, or intending to study within a reasonable time. I. Failure to adopt this moratorium could impair the orderly and effective implementation of contemplated amendments to the Municipal Code. J. The proposed Ordinance is not a project within the meaning of se ction 15378 of the California Environmental Quality Act ("CEQA") Guideline s 497 Ordinance No . 16-2152 Page 3 because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. SECTION 3. Imposition of Temporary Moratorium. In accordance with the authority granted the City under Government Code sections 36937(b) and 65858(a), (b), and pursuant to the findings stated herein, the City Council hereby finds that: (1) the foregoing findings are true and correct; and (2) there exists a current and immediate threat to the public health, safety, and welfare from unregulated payday and check- cashing businesses operating in Cupertino; and (3) this Ordinance is necessary for the immediate preservation of the public peace, health, and safety as set forth herein; and (4) hereby declares and imposes a temporary moratorium for the immediate preservation of the public health, safety and welfare as set forth below: A. Payday lending and check cashing businesses are prohibited in all zones in the city and shall not be established or operated anywhere in the city. B. No Permits, grading permit, building permit, building plans, zone change, business license, certificate of occupancy or other applicable approval will be accepted, reviewed, approved or issued for the establishment or operation of payday lending or check cashing activities. C. As used in this Ordinance, the terms "payday lending businesses" shall mean retail businesses owned or operated by a "licensee" as that term is defined in California Financial Code section 23001 (d), as amended from time to time. D. As used in this Ordinance, the terms "check cashing business" shall mean retail businesses owned or operated by a "check casher" as that term is defined in California Civil Code Section 1789.31 as amended from time to time. E. Any use or condition caused or permitted to exist in violation of any of the provisions of this Ordinance shall be and is hereby declared a public nuisance and may be abated by the City pursuant to the procedures set forth in Article 50 of this Code. SECTION 4. Effective Date and Duration. Pursuant to Government Code section 65858(a), this Ordinance shall take effect immediately but shall be of no further force 498 Ordinance No. 16-2152 Page4 and effect 45 days from its date of adoption unless the City Council, after notice and public hearing as provided under Government Code section 65858(a)(b) and adoption of the findings required by Government Code section 65858(c), subsequently extends this Ordinance. SECTION 5. Report of Interim Moratorium. Pursuant to Government Code section 65858(d), 10 days prior to the expiration or any extension of this Interim Ordinance, the City Council will issue a written report describing the measures taken to alleviate the conditions which led to the adoption of this Interim Ordinance. SECTION 6. Compliance with CEQA . The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) because the activity is not a project as defined by Section 15378 of the CEQA guideline. The Ordinance has no potential for resulting in physical change to the environment either directly or indirectly. Furthermore, pursuant to Section 15060(c) (2) of the CEQA Guidelines, the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment because this Ordinance prevents changes in the environment pending the contemplated review of City of Cupertino Zoning Code amendments applicable to payday lending and check cashing businesses. SECTION 7. Severability. The City Council hereby declares every section, paragraph, sentence, cause and phrase is severable. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason found to be invalid or unconstitutional, such invalidity, or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, sentences, clauses or phrases. SECTION 8: Publication. The City Clerk is directed to cause this ordinance to be published in the manner required by law. 499 Ordinance No. 16-2152 Pages THE FOREGOING URGENCY ORDINANCE was INTRODUCED and ENACTED at a regular meeting of the City Council of the City of Cupertino the 20th day of September 2016, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Members of the City Council Chang, Vaidhyanathan, Paul, Sinks, Wong None None None APPROVED: Grace Schmidt, City Clerk 500 STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) CITY OF CUPERTINO ) I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City Council of the City of Cupertino, California, do hereby certify the attached to be a true and correct copy of Ordinance No. 16-2152, which was enacted on September 20, 2016, and that it has been published or posted pursuant to law (G.C. 40806). IN WITNESS WHEREOF, I have hereunto set my hand and seal this 23rd day of September, 2016. GRACE SCHMIDT, City Clerk and Ex-officio Clerk of the City Council of the City of Cupertino, California 501 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 6818 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING THAT THE CITY COUNCIL APPROVE AN ORDINANCE AMENDING SECTION 19.08.030 OF CHAPTER 19.08 OF TITLE 19 OF THE CUPERTINO MUNICIPAL CODE ADDING DEFINITIONS OF “FINANCIAL INSTITUTIONS” AND “BANKS” THAT EXPRESSLY EXCLUDE PAYDAY LENDING AND CHECK CASHING BUSINESSES WITH THE INTENT TO DISALLOW SUCH USES FROM OPERATING WITHIN THE CITY OF CUPERTINO PROJECT DESCRIPTION: Application No: MCA-2016-04 Applicant: City of Cupertino Location: Citywide WHEREAS, pursuant to Government Code sections 65854 and 65855, the Planning Commission has the authority to review and make recommendations to the City Council regarding amendments to the City’s zoning ordinances; and, WHEREAS, the City provided all necessary legal notices for to hold a public hearing at which the amendment to the City’s zoning ordinances would be considered; and WHEREAS, on October 11, 2016, the Planning Commission held a noticed public hearing at which interested persons had an opportunity to testify in support of, or in opposition to, the proposed amendment to the City’s zoning ordinance and at which time the Planning Commission considered the proposed amendment to the City’s zoning ordinance; and WHEREAS, the City has analyzed this proposed zoning amendment and determined that it is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately; and WHEREAS, in the event that this proposed amendment is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment; and WHEREAS, attached as Exhibit A is the proposed Ordinance. 502 NOW, THEREFORE, the Planning Commission of the City of Cupertino does hereby resolve: SECTION 1: FINDINGS. The Planning Commission, in light of the whole record before it and any other evidence (within the meaning of Public Resources Code Sections 21080(e) and 21082.2) within the record or provided at the public hearing of this matter, hereby finds and determines as follows: 1. Payday lenders are predatory businesses that target people in desperate need of cash and charge unusually high interest rates and exorbitant fees that end up trapping borrowers in a cycle of crippling debt and poverty; and 2. State law regulates maximum loan amounts, fees, and other aspects of how payday lenders operate, however, local jurisdictions can enact local policies to restrict payday loan businesses from operating within their communities through the use of its police power. SECTION 2: APPROVAL. The Planning Commission approves this Resolution recommending that the City Council adopt the proposed Ordinance which is attached hereto and incorporated herein by reference as Exhibit A. PASSED AND ADOPTED this 11th day of October 2016, 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 Takahashi, Vice Chair Gong, Lee, Paulsen NOES: COMMISSIONERS: none ABSTAIN: COMMISSIONERS: none ABSENT: COMMISSIONERS: Sun ATTEST: APPROVED: /s/Benjamin Fu /s/Alan Takahashi Benjamin Fu Alan Takahashi Assist. Community Development Director Chair, Planning Commission 503 EXHIBIT A ORDINANCE NO. 16- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING SECTION 19.08.030 OF CHAPTER 19.08 OF TITLE 19 OF THE CUPERTINO MUNICIPAL CODE ADDING DEFINITIONS OF “FINANCIAL INSTITUTIONS” AND “BANKS” THAT EXPRESSLY EXCLUDE PAYDAY LENDING AND CHECK CASHING BUSINESSES WITH THE INTENT TO DISALLOW SUCH USES FROM OPERATING WITHIN THE CITY OF CUPERTINO WHEREAS, the Ordinance amendments set forth below further the goals and policies of the City's General Plan and are necessary to promote the health, safety and welfare of the City ; and WHEREAS, the City Council does find that payday lenders are predatory businesses that target people in desperate need of cash and charge unusually high interest rates and exorbitant fees that end up trapping borrowers in a cycle of crippling debt and poverty; and WHEREAS, the City Council does find that the State regulates maximum loan amounts, fees, and other aspects of how payday lenders operate, however, local jurisdictions can enact local policies to restrict payday loan businesses from operating within their communities through the use of its police power; and WHEREAS, the City Council finds that payday lenders and cash checking businesses are predatory businesses that target people in a financially vulnerable situation and charge exorbitant fees and high interest rates; WHEREAS, the Planning Commission has reviewed the amendments to the Municipal Code at a duly noticed public hearing held on October 11, 2016 where the public had an opportunity to comment at which the Commission adopted Planning Commission Resolution No. _____ by a X-X vote recommending that the City Council adopt the amendments; WHEREAS, a duly noticed public hearing was held on November __, 2016 at which the public had an opportunity to speak on this matter; and WHEREAS, the proposed Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) 504 because it can be seen with certainty to have no possibility of a significant effect on the environment. WHEREAS, the City Council has reviewed and considered the “not a project” determination under the California Environmental Quality Act prior to taking any approval actions on this Ordinance and approves such determinations; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: SECTION 1. Section 19.08.030(B), “’B’ Definitions”, of Chapter 19.08 of Title 19 of the Cupertino Municipal Code is hereby amended to add the definition of “banks” to be inserted into the definitions in alphabetical order and to read as follows: “banks” means financial institutions including federally-chartered banks, savings and loan associations, industrial loan companies, and credit unions providing retail banking services to individuals and businesses. This classification does not include payday lending businesses or check cashing businesses. The term "payday lending business" as used herein means retail businesses owned or operated by a "licensee" as that term is defined in California Financial Code Section 23001(d), as amended from time to time. The term "check cashing business" as used herein means a retail business owned or operated by a "check casher" as that term is defined in California Civil Code Section 1789.31 as amended from time to time. SECTION 2. Section 19.08.030(F), “’F’ Definitions”, of Chapter 19.08 of Title 19 of the Cupertino Municipal Code is hereby amended to add the definition of “financial institutions” to be inserted into the definitions in alphabetical order and to read as follows: “financial institutions” means a company engaged in the business of dealing with monetary transactions, such as deposits, loans, investments and currency exchange. This classification does not include payday lending businesses or check cashing businesses. The term "payday lending business" as used herein means retail businesses owned or operated by a "licensee" as that term is defined in California Financial Code Section 23001(d), as amended from time to time. The term "check cashing business" as used herein means a retail business owned or operated by a "check casher" as that term is defined in California Civil Code Section 1789.31 as amended from time to time. 505 SECTION 3. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. SECTION 4. Effective Date. This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. SECTION 5. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of this Ordinance may be published and posted in lieu of publication and posting of the entire text. SECTION 6. Continuity. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as amendments of the earlier provisions. INTRODUCED at a regular meeting of the Cupertino City Council the ____ day of ___________ 2016 and ENACTED at a regular meeting of the Cupertino City Council on this ____ of __________ 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor Barry Chang, City of Cupertino 506 SENT VIA E-MAIL: planning@cupertino.org. October 11, 2016 Members of the Planning Commission City of Cupertino 10350 Torre Ave. Cupertino, CA 95014 Re: Item 1 (October 11, 2016)—Payday Lending Dear Members of the Planning Commission: We write on behalf of the Coalition Against Payday Predators (CAPP), 1 a broad coalition of individuals and over 40 community-based organizations who support policy reforms regarding payday lending and local restrictions on payday lenders in Santa Clara County. CAPP believes that sensible regulation of payday lending will lead to greater economic security and prosperity. We support staff’s recommendation of a ban on the establishment of payday lenders in Cupertino. Payday Loans and Payday Lending2 Payday loans are lending transactions in which a borrower provides a lender with a post- dated check and receives immediate cash from the lender. The borrower’s check includes not only the principal loan amount, but also any interest and fees charged by the lender. The lender then cashes the borrower’s check on the borrower’s next payday unless the loan has been repaid by that date. Payday loans, sometimes called deferred deposit transactions or cash advances, comprise one corner of a larger universe of “alternative” or “fringe” financial services, which also includes check cashing services, pawn brokers, and rent-to-own stores.3 In California, 1 CAPP’s core leaders include the Law Foundation of Silicon Valley, Asian Law Alliance, West Valley Community Services, United Way of Silicon Valley, Working Partnerships USA, the Opportunity Fund, and Sunnyvale Community Services. CAPP’s efforts are funded in part by a grant from the Silicon Valley Community Foundation. 2 The text of this section is taken largely from a memo submitted by CAPP to the City of Cupertino in March 2016; staff include a copy of that memo in the agenda packet. 3 See, e.g., Sharon Hermanson and George Gaberlavage, “The Alternative Financial Services Industry,” AARP Public Policy Institute (Aug. 2001) (available at http://www.aarp.org/research/credit- 507 2 payday loans are small-dollar loans; state law caps them at $300.4 However, these loans, including the relatively large fees associated with them, must be repaid quickly; the average term of a payday loan is 16 days.5 Due to this short repayment timeframe, their average APR6 is 366 percent.7 Payday lending is widespread in California. In 2015, payday lenders issued over 12 million payday loans.8 Although payday loans are advertised as short-term credit products for use in emergencies, data show that most payday loan borrowers are unable to repay their loans in lump sum and that payday loan borrowers are indebted for an average of five months per year.9 Further, the average payday loan borrower takes out eight loans per year, “often renewing an existing loan or taking out a new loan within days of repaying the previous one.”10 In 2015, there were more payday loan borrowers who took out 10 payday loans than there were payday loan borrowers who took out only a single loan.11 Sixty-four percent of the total fees collected by the payday lending industry in California were collected from borrowers who took out 7 or more payday loans in a year.12 Nearly half of all repeat payday loans made to repeat borrowers were made to the borrower the same day that the borrower paid his or her prior loan.13 Payday lenders and other fringe financial services tend to be more densely concentrated in lower-income areas and communities of color.14 One study found that “[e]ven after controlling for income and a variety of other factors, payday lenders are 2.4 times more concentrated in African American and Latino communities. On average, controlling for a variety of relevant factors, the nearest payday lender is almost twice as close to the center of an African American or Latino neighborhood as a largely white neighborhood.”15 In debt/credit/aresearch-import-198-IB51.html). The San Francisco Municipal Code also uses the term “fringe financial services” to refer to these types of establishments. San Francisco Muni. Code § 790.111. 4 Cal. Fin. Code, § 23035, subd. (a). 5 California Department of Business Oversight, Summary Report: California Deferred Deposit Transaction Law—Annual Report and Industry Survey (2016) 6 (available at http://www.dbo.ca.gov/Licensees/payday_Lenders/payday_lenders.asp). 6 The APR, or Annual Percentage Rate of Interest, was developed by Congress “as a standard measure that calculates the simple interest rate on an annual basis (including most fees), accounts for the amount of time the borrower has to repay the loan, and factors in the reduction in principal as payments are made over time.” Center for Responsible Lending, “APR Matters on Payday Loans” (June 23, 2009) (available at http://www.responsiblelending.org/payday-lending/research-analysis/apr-matters-on-payday-loans.html). 7 DBO, supra note 5 at 7. 8 Id. at 6. 9 The Pew Charitable Trusts, Payday Lending in America: Who Borrows, Where They Borrow, and Why (Jul. 2012), 6 (available at http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Pew_Payday_Lending_Report.pdf). 10 Id. at 9. 11 DBO, supra note 5 at 7. 12 Id. at 8. 13 Id. at 7. 14 See, e.g., Brookings Institution, “From Poverty, Opportunity: Putting the Market to Work for Lower Income Families,” (2006) (available at http://www.brookings.edu/reports/2006/07poverty_fellowes.aspx). 15 Wei Li, et al., “Predatory Profiling: The Role of Race and Ethnicity in the Location of Payday Lenders in California,” Center for Responsible Lending (Mar. 26, 2009), 25 (available at http://www.responsiblelending.org/payday-lending/research-analysis/predatory-profiling.pdf). 508 3 2015, approximately 60 percent of California payday loan borrowers had incomes of $30,000 per year or less.16 Local, State, and Federal Policy Efforts CAPP and its allies throughout California have been advocating for stronger consumer protections for payday loan borrowers, as well as local land use policies that limit the proliferation of payday lenders. In California, payday lenders are governed by the Deferred Deposit Transaction Law (Fin. Code, §§ 23000 et seq.) and by regulations promulgated by the Department of Business Oversight (Cal. Code Regs., tit. 10, ch. 3). These laws govern the maximum loan amounts, fees, and other aspects of how payday lenders operate. Because California has adopted this comprehensive regulatory scheme, local jurisdictions are prohibited from regulating the terms of payday loans under the legal doctrine of preemption. However, local jurisdictions are legally permitted to enact local policies that combat the proliferation of payday lenders in their communities and the overconcentration of these types of businesses in low-income and minority neighborhoods. Silicon Valley voters are in favor of such local measures according to a 2010 poll, which found that an overwhelming majority of respondents supported restrictions on payday lenders, and over half believed that such restrictions were appropriate actions for city government.17 In Santa Clara County, the cities of Los Altos, Gilroy, and Morgan Hill, as well as the County itself, have all imposed permanent moratoria on payday loan stores. While existing stores may continue operation, they may not expand or move, and no new payday loan stores may locate in those cities. San Jose, Sunnyvale, and Campbell also cap the number of payday loans stores and limit their placement. Several cities (and the County) imposed temporary moratoria on payday lenders while they considered the policy options for longer term regulation of payday lenders. Although check cashing outlets are a different type of “fringe financial service” that are licensed differently than payday lenders, they often exist in the same store fronts with payday lenders, and many cities have elected to regulate payday lenders and check cashers together. Recommendations Cupertino does not currently have any payday lenders, and the Council adopted a temporary moratorium on the establishment of payday loan stores on September 20, 2016. Now is an ideal time for the City Council to act to prevent payday loan stores from 16 DBO, supra note 5 at 8. 17 Goodwin & Simon Strategic Research, San José Payday Loan Store Restrictions Survey (Dec. 2010) (available at http://www.responsiblelending.org/california/ca-payday/research-analysis/San-Jose-Payday- Lending-Voter-Poll-Memo.pdf). 509 4 opening in the City. We support staff’s recommendation to move forward with a ban on payday lenders in Cupertino. Thank you for your time and careful attention to this important policy question. If you have any questions about the CAPP Coalition or about our position, please contact Melissa Morris at 408-280-2429 or melissam@lawfoundation.org. Many thanks, Melissa A. Morris Senior Attorney, Law Foundation of Silicon Valley /s/ Maria Noel Fernandez Director of Organizing and Civic Engagement, Working Partnerships USA /s/ Liana Molina Director of Community Engagement, California Reinvestment Coalition cc: Angela Munuhe, Deputy City Attorney Jaqueline Guzmán, Assistant to the City Manager Mayor and City Councilmembers 510 CITY OF CUPERTINO Legislation Details (With Text) File #: Version:116-1384 Name: Status:Type:Reports by Council and Staff Agenda Ready File created:In control:1/14/2016 City Council On agenda:Final action:11/1/2016 Title:Subject: Report on Committee assignments and general comments Sponsors: Indexes: Code sections: Attachments: Action ByDate Action ResultVer. 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