02-07-2017 Searchable packetCITY OF CUPERTINO
AGENDA
Tuesday, February 7, 2017
10350 Torre Avenue, Council Chamber
CITY COUNCIL
6:45 PM
PLEDGE OF ALLEGIANCE
ROLL CALL
CEREMONIAL MATTERS AND PRESENTATIONS
1.Subject: Proclamation in memory of Cupertino resident Gin Lu "Tommy" Shwe
Recommended Action: Present proclamation in memory of Cupertino resident Gin
Lu "Tommy" Shwe
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.
2.Subject: Approve the January 24 City Council minutes
Recommended Action: Approve the January 24 City Council minutes
A - Draft Minutes
3.Subject: Accept Accounts Payable for the period ending December 2, 2016
Recommended Action: Adopt Resolution No. 17-006 accepting Accounts Payable
for the period ending December 2, 2016
A - Draft Resolution
B - AP Report
Page 1 CITY OF CUPERTINO
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February 7, 2017City Council AGENDA
4.Subject: Accept Accounts Payable for the period ending December 9, 2016
Recommended Action: Adopt Resolution No. 17-007 accepting Accounts Payable
for the period ending December 9, 2016
A - Draft Resolution
B - AP Report
5.Subject: Accept Accounts Payable for the period ending December 16, 2016
Recommended Action: Adopt Resolution No. 17-008 accepting Accounts Payable
for the period ending December 16, 2016
A - Draft Resolution
B - AP Report
6.Subject: Accept Accounts Payable for the period ending December 22, 2016
Recommended Action: Adopt Resolution No. 17-009 accepting Accounts Payable
for the period ending December 22, 2016
A - Draft Resolution
B - AP Report
7.Subject: Accept Accounts Payable for the period ending December 31, 2016
Recommended Action: Adopt Resolution No. 17-010 accepting Accounts Payable
for the period ending December 31, 2016
A - Draft Resolution
B - AP Report
8.Subject: Approval of Bay Area Governments (ABAG) Regional Collaborative
Services Agreement with Property Assessed Clean Energy (PACE) Providers and
Adoption of Resolutions Authorizing Membership in the California Enterprise
Development Authority, Golden State Finance Authority, Western Riverside
Council of Governments, and the California Statewide Community Development
Authorities and to participate in the PACE programs
Page 2 CITY OF CUPERTINO
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February 7, 2017City Council AGENDA
Recommended Action: 1. Adopt Resolutions to join the following joint power
agencies and participate in their PACE programs
a. California Enterprise Development Authority (Figtree PACE Program), Resolution
No. 17-011
b. Golden State Finance Authority (Ygrene PACE Program), Resolution Nos. 17-012
and 17-013
c. Western Riverside Council of Governments (California HERO PACE Program),
Resolution No. 17-014
d. California Statewide Communities Development Authority (Open PACE
Program), Resolution No. 17-015; and
2. Authorize the City Manager to approve and sign the acknowledgement and
addendums of the Association of Bay Area Governments (ABAG) Regional
Collaborative Services Agreement, as executed between ABAG and Residential
PACE Providers, and execute any other document necessary to carry out the City's
membership in each of the PACE Providers listed above
Staff Report
A. Draft Resolution Figtree Program
B. Draft Resolution Ygrene for SB 555 & JPA Agreement
C. Draft Resolution Ygrene for AB 811 & JPA Agreement
D. Draft Resolution HERO Program
E. Draft Resolution CSCDA Open PACE
F. Figtree_Fully Executed ABAG RCSA
G. ABAG Member Acknowledgement Form_Figtree
H. Ygrene_Fully Executed ABAG RCSA
I. ABAG Member Acknowledgement Form_Ygrene
J. WRCOG_Fully Executed ABAG RCSA
K. ABAG Member Acknowledgement Form_WRCOG
L. CounterPoint (Alliance NRG ) Fully Executied ABAG RCSA
M. ABAG Member Acknowledgement Form_AllianceNRG
N. PACE Funding Group_Fully Executed ABAG RCSA
O. ABAG Member Acknowledgement Form_PACE Funding Group
9.Subject: Application for Alcohol Beverage License for PEFF LLC (dba Enzo's
Restaurant), 21275 Stevens Creek Boulevard, Ste. 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, Ste. 510
Staff Report
Attachment A - Application
10.Subject: Accept resignation of Parks and Recreation Commissioner David Fung
and direct staff to fill the vacancy
Page 3 CITY OF CUPERTINO
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February 7, 2017City Council AGENDA
Recommended Action: Accept resignation of Parks and Recreation Commissioner
David Fung and direct staff to fill the unscheduled vacancy:
a.) Application deadline date of Friday, March 10; and
b.) Interview date of Tuesday, March 21
Staff Report
A - Resignation letter
11.Subject: Transfer of funds for expenses related to Mayor Vaidhyanathan’s
participation in Silicon Valley Leadership Group’s annual D.C. Advocacy Trip on
March 17-19 to meet with Congressional and Agency officials regarding funding
for city and regional priorities
Recommended Action: Transfer $2,000 to cover all costs, not limited to travel
expenses, lodging and food, for the Mayor’s participation in SLVG’s annual D.C.
Advocacy Trip
Staff Report
A - Event Information
SECOND READING OF ORDINANCES
PUBLIC HEARINGS
12.Subject: Petition for Reconsideration regarding the City Council decision of
December 6, 2016, denying Petitioner Kimberly Sandstrom’s appeal of the
determination that she is ineligible to purchase a Below Market Rate (BMR) unit
Recommended Action: Staff recommends that the City Council:
1. Consider the Petition for Reconsideration (Attachment B-1) and deny it for its
failure to meet the requirements of Cupertino Municipal Code (CMC) Section
2.08.096 and adopt Resolution No. 17-016 (Attachment A-1); or, in the alternative;
2. Conduct a hearing to reconsider its decision of December 6, 2016 based upon the
new evidence and grounds proffered by Petitioner, if Council determines that the
Petition meets the requirements of Cupertino Municipal Code section 2.08.096, and
affirm its decision denying Petitioner’s appeal
Page 4 CITY OF CUPERTINO
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February 7, 2017City Council AGENDA
Staff Report
A-1 Draft Resolution
B-1 Reconsideration Petition December 19, 2016
C-1 Approved City Council Resolution No. 16-101 (Subject of Reconsideration)
D-1 Approved Housing Commission Minutes June 23, 2016
E-1 Approved Housing Commission Minutes August 11, 2016
F-1 Approved Housing Commission Resolution No. 16-07
G-1 City Council Staff Report from underlying Appeal and its attachments A-H
A- Summary of Conflict of Interest Investigation
B- Draft City Council Resolution No. 16-101
C- Housing Commission Resolution 16-07 (Resolution No. reassigned)
D- Excerpts from BMR Manual Regarding Income Calculation
E- Referenced Regulations (24 CFR 5.609(b) and (c)
F- Technical Guide for Determining Income
G- Attachments and Other Documents Provided by Appellant
H- Sandstrom presentation
ORDINANCES AND ACTION ITEMS
13.Subject: Order the abatement of a public nuisance (weeds) pursuant to provisions
of Ordinance No. 724 and Resolution No. 16-136
Recommended Action: Note objections and adopt Resolution No. 17-017 ordering
abatement of a public nuisance (weeds) pursuant to provisions of Ordinance No. 724
and Resolution No. 16-136
Staff Report
A - Draft Resolution
B - 2017 Weed Abatement Program Commencement Report
C - Notice to Destroy Weeds and Program Schedule
D - Letter to Property Owners
E - Approved Resolution No. 16-136
14.Subject: An Ordinance of the City Council of the City of Cupertino Amending
Title 11 Chapter 11.08 Sections 11.08.160 and 11.08.180 of the Cupertino
Municipal Code Regarding Restrictions on Riding Bicycles on Sidewalks and
Pedestrian Paths
Recommended Action: Conduct first reading of Ordinance No. 17-2161, An
Ordinance of the City Council of the City of Cupertino Amending Title 11 Chapter
11.08 Sections 11.08.160 and 11.08.180 of the Cupertino Municipal Code Regarding
Restrictions on Riding Bicycles on Sidewalks and Pedestrian Paths
Staff Report
A - Redlined Ch 11.08.160_180-Rev
B - Draft Ordinance
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February 7, 2017City Council AGENDA
15.Subject: Fee waiver request by Pacific Coast Farmers Market Association
(PCFMA) for costs incurred related to a Special Event Permit for a farmer’s
market at the Creekside Park north parking lot on Friday mornings for the 2017
calendar year
Recommended Action: Staff recommends adoption of Resolution No. 17-018 “A
resolution of the City Council of the City of Cupertino waiving costs incurred related
to the use of the Creekside Park north parking lot by the Pacific Coast Farmer’s
Market Association every Friday morning for the 2017 calendar year"
Staff Report
A - Draft Resolution
B - Letter from Pacific Coast Farmers Market Association
REPORTS BY COUNCIL AND STAFF
16.Subject: Update on Status of I-280/Wolfe Road Interchange Improvements
Project
Recommended Action: Receive update on status of I-280/Wolfe Road Interchange
Improvements Project
Staff Report
A - Partial Cloverleaf - Widen or Replace
B - Compact Diamond Interchange
C - Diverging Diamond Interchange
D - Double Roundabout Interchange
17.Subject: Update on Status of 2016 Cupertino Bicycle Transportation Plan
Implementation
Recommended Action: Receive update on status of 2016 Cupertino Bicycle
Transportation Plan Implementation
Staff Report
A - Map of Area and Bikeway Locations
B - Stevens Creek Blvd Bikeway Concept and Buffer Treatment Options
C - Intersection and Signalization
D - Bus Stop and Driveway Treatments
E - McClellan Road Concepts and Buffer Treatment Options
18.Subject: Report on Committee assignments and general comments
Recommended Action: Report on Committee assignments and general comments
ADJOURNMENT
Page 6 CITY OF CUPERTINO
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February 7, 2017City 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 7 CITY OF CUPERTINO
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2316 Name:
Status:Type:Ceremonial Matters &
Presentations
Agenda Ready
File created:In control:2/1/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Proclamation in memory of Cupertino resident Gin Lu "Tommy" Shwe
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Proclamation in memory of Cupertino resident Gin Lu "Tommy" Shwe
Present proclamation in memory of Cupertino resident Gin Lu "Tommy" Shwe
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-1944 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:9/1/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: Approve the January 24 City Council minutes
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Minutes
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Approve the January 24 City Council minutes
Approve the January 24 City Council minutes
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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DRAFT MINUTES
CUPERTINO CITY COUNCIL
Tuesday, January 24, 2017
SPECIAL CITY COUNCIL MEETING
ROLL CALL
At 5:00 p.m. Mayor Savita Vaidhyanathan called the City Council meeting to order in
Cupertino City Hall Conference Room A, 10300 Torre Avenue.
Present: Mayor Savita Vaidhyanathan, Vice Mayor Darcy Paul, and Councilmembers Barry
Chang, Steven Scharf and Rod Sinks. Absent: None.
CLOSED SESSION
1. Subject: Conference with Legal Counsel- Existing litigation (Paragraph (1) of
subdivision (d) of Gov’t Code Section 54956.9). Name of Case: Alice Palmer v. City of
Cupertino, et al., Santa Clara County Superior Court Case No. 16 CV301228
Mayor Vaidhyanathan announced that Council gave direction to staff. Sinks recused.
2. Subject: Conference with Legal Counsel- Existing litigation (Paragraph (1) of
subdivision (d) of Gov’t Code Section 54956.9); Name of Case: Committee Supporting
Cupertino Citizen’s Sensible Growth Initiative, et al. v. City of Cupertino, et al., Santa
Clara County Superior Court Case No. 16 CV296322; Court of Appeal, Sixth Appellate
District, Case No. H043940
Mayor Vaidhyanathan announced that Council gave direction to staff. Scharf recused.
3. Subject: Conference with Real Property Negotiators pursuant to Government Code
Section 54956.8. Properties: APN 375-21-001, Lawrence Expressway at Mitty Avenue
and APN 381-19-015, Lawrence Expressway at Doyle Road. Agency Negotiators: Jaqui
Guzman. Negotiating Parties: San Jose Water Company; County Roads and Airports;
City of San Jose. Under Negotiation: Price and terms of payment
Mayor Vaidhyanathan announced that Council gave direction to staff.
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City Council Minutes January 24, 2017
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At 6:45 p.m. Mayor Savita Vaidhyanathan reconvened the City Council meeting in Cupertino
Community Hall Council Chambers, 10350 Torre Avenue.
ROLL CALL
Present: Mayor Savita Vaidhyanathan, and Councilmembers Barry Chang, Steven Scharf and
Rod Sinks. Absent: Vice Mayor Darcy Paul.
CEREMONIAL MATTERS AND PRESENTATIONS
4. Subject: Fine Arts Commission presentation of the Young Artist Award to three
Cupertino elementary school students
Recommended Action: Receive Fine Arts Commission presentation of the Young Artist
Award to three Cupertino elementary school students
Members from the Fine Arts Commission and Mayor Vaidhyanathan presented the
Young Artist Award to three Cupertino elementary school students.
Council received the presentation.
5. Subject: Presentation from the Fine Arts Commission of completed 2016 Work Plan
items
Recommended Action: Receive presentation from the Fine Arts Commission of
completed 2016 Work Plan items
Written communications for this item included a PowerPoint presentation.
Commission Chair Diana Matley presented the Fine Arts Commission completed 2016
Work Plan items via a PowerPoint presentation.
Council received the presentation.
POSTPONEMENTS - None
ORAL COMMUNICATIONS
Rick Kitson from Cupertino Chamber of Commerce talked about the Lunar New Year
Luncheon to be held on February 10 at 1:30 p.m. at Dynasty Restaurant. (He distributed a
flyer).
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City Council Minutes January 24, 2017
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Lindsey Gauci from Cupertino Morningmasters Toastmasters Club talked about an open
house being held on January 26 at Bethel Lutheran Church.
Joe Hamilton from Cupertino Rotary talked about what the Rotary Club is and does.
Cathy Helgerson talked about a solution for the revitalization of Vallco.
Sabrina Rick thanked Councilmembers for their service and talked about recognizing the
challenges and difficulties in governing.
Chris Moylan District Director for Congressman Ro Khanna introduced himself, conveyed the
Congressman’s greetings and encouraged contact if needed.
Dolly Sandoval talked about upcoming commission interviews and appointments and asked
Council to weigh applicant experiences, especially for Planning Commission. (She
distributed written comments).
CONSENT CALENDAR
Sinks moved and Chang seconded to approve the items on the Consent Calendar as
presented except for item numbers 12, 14 and 17 which were pulled for discussion. Ayes:
Vaidhyanathan, Paul, Chang, Scharf and Sinks. Noes: None. Abstain: None. Absent: None.
6. Subject: Approve the December 20 City Council minutes
Recommended Action: Approve the December 20 City Council minutes
7. Subject: Accept Accounts Payable for the period ending November 11, 2016
Recommended Action: Adopt Resolution No. 17-001 accepting Accounts Payable for
the period ending November 11, 2016
8. Subject: Accept Accounts Payable for the period ending November 18, 2016
Recommended Action: Adopt Resolution No. 17-002 accepting Accounts Payable for
the period ending November 18, 2016
9. Subject: Accept Accounts Payable for the period ending November 23, 2016
Recommended Action: Adopt Resolution No. 17-003 accepting Accounts Payable for
the period ending November 23, 2016
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City Council Minutes January 24, 2017
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10. Subject: Annual Report for Fiscal Year 2015-2016
Recommended Action: Accept Annual Report from July 1, 2015 to June 30, 2016
(Attachment A)
11. Subject: Council committee appointments
Recommended Action: Approve Council committee appointments
12. Subject: Consider adopting a resolution supporting the prohibition of industrial clear-
cut logging in the forests of California
Recommended Action: Adopt Resolution No. 17-004 supporting the prohibition of
industrial clear-cut logging in the forests of California
Deputy City Manager Jaqui Guzman gave some additional information as requested by
Council.
Paul moved and Chang seconded to adopt Resolution No. 17-004 supporting the
prohibition of industrial clear-cut logging in the forests of California. The motion
carried unanimously.
13. Subject: Letters of support for SB 1 and AB 1 regarding transportation funding
Recommended Action: Direct staff to send letters of support for SB 1 and AB 1 from the
City Manager
14. Subject: Citywide Parks, Open Space and Recreation Master Plan agreement for
consultant services
Recommended Action: Authorize the City Manager to negotiate and execute a
consultant services agreement for preparation of the Citywide Parks, Open Space and
Recreation Master Plan for a fee not to exceed $210,000 and authorize a contingency
allowance anticipated to be $40,000 and subject to approval of the City Manager.
City Manager David Brandt introduced Jeff Milkes, the new Director of Recreation and
Community Services and gave additional information as requested by Council.
Cathy Helgerson spoke on this item.
Paul moved and Chang seconded to authorize the City Manager to negotiate and
execute a consultant services agreement for preparation of the Citywide Parks, Open
Space and Recreation Master Plan for a fee not to exceed $210,000 and authorize a
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City Council Minutes January 24, 2017
5
contingency allowance anticipated to be $40,000 and subject to approval of the City
Manager. The motion carried unanimously.
15. Subject: 2015 Contractual Janitorial Services - Project No. 2015-23, contract amendment
Recommended Action: Staff recommends Council take the following actions: 1.
Authorize the City Manager to execute an amendment (Attachment A) to the current
janitorial services contract to provide for increased contractor compensation due to the
adoption of City’s Minimum Wage Ordinance (Ordinance No. 2151); and 2. Adopt
Resolution No. 17-005 amending approved FY 16/17 Operating Budget by an additional
amount of $35,000 for janitorial services (Attachment B)
16. Subject: Application for Alcohol Beverage License for Gogigo, Inc. (dba Gogigo Korean
BBQ), 10815 N. Wolfe Road, Bldg A Suite A3
Recommended Action: Recommend approval to the California Department of
Alcoholic Beverage Control of the application for Alcohol Beverage License for Gogigo,
Inc (dba Gogigo Korean BBQ), 10815 N. Wolfe Road, Bldg A Suite A3
17. Subject: 2017 CDBG City-Wide Curb Ramp Installation Project, Project No. 2017-109
Recommended Action: Authorize the City Manager to award and execute a contract
with JJR Construction, Inc., in the amount of $233,100 and approve a construction
contingency of $11,900, for a total of $235,000
Director of Public Works Timm Borden gave additional information as requested by
Council.
Paul moved and Chang seconded to authorize the City Manager to award and execute
a contract with JJR Construction, Inc., in the amount of $233,100 and approve a
construction contingency of $11,900, for a total of $235,000. The motion carried
unanimously.
SECOND READING OF ORDINANCES - None
PUBLIC HEARINGS - None
ORDINANCES AND ACTION ITEMS - None
REPORTS BY COUNCIL AND STAFF
18. Subject: Lehigh Cement Plant Noise Monitoring report
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City Council Minutes January 24, 2017
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Recommended Action: Receive the Lehigh Cement Plant Noise Monitoring report. No
action is required
Written communications for this item included emails to Council and a staff
PowerPoint presentation.
Assistant Director of Public Works Roger Lee presented the Lehigh Cement Plant Noise
Monitoring report via a PowerPoint presentation.
Consultant Randy Waldeck from CSDA Design Group answered questions from
Council.
The following individuals spoke on this item:
Cathy Helgerson on behalf of Cupertino Citizens Against Pollution (distributed written
comments)
Meir Statman
Tammy White
Amit Butala
Chris Prihe
Janet Geiger
Rhoda Fry (distributed written comments)
Panos Kougiouris
Council received the Lehigh Cement Plant Noise Monitoring report and authorized the
Mayor to send a letter to the County Supervisor and the Department of Planning
requesting a review of the complaints and the hearing, and to characterize the noise
from particular points in the facility during normal operations (maintenance period is
over); and bring the item back to a future Council date for further discussion.
19. Subject: Report from Valley Transportation Authority (VTA) regarding Next Network
Program
Recommended Action: Receive Report from Valley Transportation Authority (VTA)
regarding Next Network Program
Written communications for this item included the VTA Draft Transit Service Plan and
a PowerPoint presentation.
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City Council Minutes January 24, 2017
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Adam Burger, VTA Senior Transportation Planner gave a report regarding the Next
Network Program via a PowerPoint presentation.
Jean Bedord spoke on this item and distributed written comments.
Council received the report.
20. Subject: Report on Committee assignments and general comments
Recommended Action: Report on Committee assignments and general comments
Councilmembers highlighted the activities of their committees and various community
events.
ADJOURNMENT
At 10:32 p.m., Mayor Vaidhyanathan adjourned the meeting.
_______________________
Grace Schmidt, City Clerk
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2285 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/18/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Accept Accounts Payable for the period ending December 2, 2016
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Resolution
B - AP Report
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Accept Accounts Payable for the period ending December 2, 2016
AdoptResolutionNo.17-006acceptingAccountsPayablefortheperiodendingDecember2,
2016
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN
THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED
FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD
ENDING
December 2, 2016
WHEREAS, the Director of Administrative Services or her designated
representative has certified to accuracy of the following claims and demands and
to the availability of funds for payment hereof; and
WHEREAS, the said claims and demands have been audited as required
by law.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby
allows the following claims and demands in the amounts and from the funds as
hereinafter set forth in the attached Payment Register.
CERTIFIED: _____________________________
Lisa Taitano, Finance Manager
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 7th day of February, 2017, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor,
City of Cupertino
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2286 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/18/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Accept Accounts Payable for the period ending December 9, 2016
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Resolution
B - AP Report
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Accept Accounts Payable for the period ending December 9, 2016
AdoptResolutionNo.17-007acceptingAccountsPayablefortheperiodendingDecember9,
2016
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
powered by Legistar™67
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN
THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED
FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD
ENDING
December 9, 2016
WHEREAS, the Director of Administrative Services or her designated
representative has certified to accuracy of the following claims and demands and
to the availability of funds for payment hereof; and
WHEREAS, the said claims and demands have been audited as required
by law.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby
allows the following claims and demands in the amounts and from the funds as
hereinafter set forth in the attached Payment Register.
CERTIFIED: _____________________________
Lisa Taitano, Finance Manager
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 7th day of February, 2017, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor,
City of Cupertino
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2287 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/18/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Accept Accounts Payable for the period ending December 16, 2016
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Resolution
B - AP Report
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Accept Accounts Payable for the period ending December 16, 2016
AdoptResolutionNo.17-008acceptingAccountsPayablefortheperiodendingDecember16,
2016
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN
THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED
FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD
ENDING
December 16, 2016
WHEREAS, the Director of Administrative Services or her designated
representative has certified to accuracy of the following claims and demands and
to the availability of funds for payment hereof; and
WHEREAS, the said claims and demands have been audited as required
by law.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby
allows the following claims and demands in the amounts and from the funds as
hereinafter set forth in the attached Payment Register.
CERTIFIED: _____________________________
Lisa Taitano, Finance Manager
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 7th day of February, 2017, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor,
City of Cupertino
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2288 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/18/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Accept Accounts Payable for the period ending December 22, 2016
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Resolution
B - AP Report
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Accept Accounts Payable for the period ending December 22, 2016
AdoptResolutionNo.17-009acceptingAccountsPayablefortheperiodendingDecember22,
2016
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN
THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED
FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD
ENDING
December 22, 2016
WHEREAS, the Director of Administrative Services or her designated
representative has certified to accuracy of the following claims and demands and
to the availability of funds for payment hereof; and
WHEREAS, the said claims and demands have been audited as required
by law.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby
allows the following claims and demands in the amounts and from the funds as
hereinafter set forth in the attached Payment Register.
CERTIFIED: _____________________________
Lisa Taitano, Finance Manager
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 7th day of February, 2017, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor,
City of Cupertino
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2291 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/19/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Accept Accounts Payable for the period ending December 31, 2016
Sponsors:
Indexes:
Code sections:
Attachments:A - Draft Resolution
B - AP Report
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Accept Accounts Payable for the period ending December 31, 2016
AdoptResolutionNo.17-010acceptingAccountsPayablefortheperiodendingDecember31,
2016
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
powered by Legistar™185
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN
THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED
FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD
ENDING
December 31, 2016
WHEREAS, the Director of Administrative Services or her designated
representative has certified to accuracy of the following claims and demands and
to the availability of funds for payment hereof; and
WHEREAS, the said claims and demands have been audited as required
by law.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby
allows the following claims and demands in the amounts and from the funds as
hereinafter set forth in the attached Payment Register.
CERTIFIED: _____________________________
Lisa Taitano, Finance Manager
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 7th day of February, 2017 , by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor,
City of Cupertino
186
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-2091 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:10/11/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: Approval of Bay Area Governments (ABAG) Regional Collaborative Services Agreement
with Property Assessed Clean Energy (PACE) Providers and Adoption of Resolutions Authorizing
Membership in the California Enterprise Development Authority, Golden State Finance Authority,
Western Riverside Council of Governments, and the California Statewide Community Development
Authorities and to participate in the PACE programs
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A. Draft Resolution Figtree Program
B. Draft Resolution Ygrene for SB 555 & JPA Agreement
C. Draft Resolution Ygrene for AB 811 & JPA Agreement
D. Draft Resolution HERO Program
E. Draft Resolution CSCDA Open PACE
F. Figtree_Fully Executed ABAG RCSA
G. ABAG Member Acknowledgement Form_Figtree
H. Ygrene_Fully Executed ABAG RCSA
I. ABAG Member Acknowledgement Form_Ygrene
J. WRCOG_Fully Executed ABAG RCSA
K. ABAG Member Acknowledgement Form_WRCOG
L. CounterPoint (Alliance NRG ) Fully Executied ABAG RCSA
M. ABAG Member Acknowledgement Form_AllianceNRG
N. PACE Funding Group_Fully Executed ABAG RCSA
O. ABAG Member Acknowledgement Form_PACE Funding Group
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:ApprovalofBayAreaGovernments(ABAG)RegionalCollaborativeServices
AgreementwithPropertyAssessedCleanEnergy(PACE)ProvidersandAdoptionof
ResolutionsAuthorizingMembershipintheCaliforniaEnterpriseDevelopmentAuthority,
GoldenStateFinanceAuthority,WesternRiversideCouncilofGovernments,andthe
CaliforniaStatewideCommunityDevelopmentAuthoritiesandtoparticipateinthePACE
programs
1.AdoptResolutionstojointhefollowingjointpoweragenciesandparticipateintheirPACE
programs
a.CaliforniaEnterpriseDevelopmentAuthority(FigtreePACEProgram),ResolutionNo.17-CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 2
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File #:16-2091,Version:1
a.CaliforniaEnterpriseDevelopmentAuthority(FigtreePACEProgram),ResolutionNo.17-
011
b.GoldenStateFinanceAuthority(YgrenePACEProgram),ResolutionNos.17-012and17-
013
c.WesternRiversideCouncilofGovernments(CaliforniaHEROPACEProgram),Resolution
No. 17-014
d.CaliforniaStatewideCommunitiesDevelopmentAuthority(OpenPACEProgram),
Resolution No. 17-015; and
2.AuthorizetheCityManagertoapproveandsigntheacknowledgementandaddendumsofthe
AssociationofBayAreaGovernments(ABAG)RegionalCollaborativeServicesAgreement,
asexecutedbetweenABAGandResidentialPACEProviders,andexecuteanyotherdocument
necessary to carry out the City's membership in each of the PACE Providers listed above
CITY OF CUPERTINO Printed on 2/1/2017Page 2 of 2
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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: February 7, 2016
Subject
Approval of Association of Bay Area Governments (ABAG) Regional Collaborative Services
Agreement with Property Assessed Clean Energy ( PACE) Providers and Adoption of
Resolutions Authorizing Membership in the California Enterprise Development Authority,
Golden State Finance Authority, Western Riverside Council of Governments, and the California
Statewide Community Development Authorities and to participate in PACE Programs.
Recommended Action
Staff recommends that Council:
1. Adopt Resolutions to join the following joint power agencies and participate in their
PACE programs:
a. California Enterprise Development Authority (Figtree PACE Program);
b. Golden State Finance Authority (Ygrene PACE Program);
c. Western Riverside Council of Governments (California HERO PACE Program);
and
d. California Statewide Communities Development Authority (Open PACE
Program).
2. Authorize the City Manager to approve and sign the acknowledgement addendums of
the Association of Bay Area Governments (ABAG) Regional Collaborative Services
Agreement, as executed between ABAG and Residential PACE Providers, and execute
any other document necessary to carry out the City’s membership in each of the PACE
Providers listed above.
Executive Summary
Property Assessed Clean Energy (PACE) programs allow local property owners to finance
energy efficiency, water conservation, and renewable energy improvements on their property.
Property owners borrow funds for the improvements and repay the loan via a special
voluntary property tax assessment.
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The intent of PACE is to provide an affordable and accessible means of financing energy
upgrades to existing homes and businesses, ultimately making the City’s existing building
stock more sustainable and lowering greenhouse gas emissions. This allows the property
owner to benefit from the energy and water savings for these improvements without having to
make a large financial investment up front, and they can pay for the improvements overtime
with 5-20 year terms.
To date there is one PACE program serving Cupertino, CaliforniaFIRST, which was approved
by Council on January 19, 2010. Since then, several PACE lenders have approached the City in
recent months requesting that the City take the necessary actions to allow them to also offer
PACE loans in Cupertino. To help Cupertino and other cities to evaluate the requests, the
Association of Bay Area Governments (ABAG) worked with PACE providers to develop and
agree to follow a set of best practices, called an “Agreement for Collaborative Services for
Property Energy Financing (Collaborative Services Agreement)”, that will ensure that the
programs meet certain basic quality and reporting standards.
The Sustainability Commission studied the issue of PACE in 2016, during its May, June, and
December meetings. At the December 15th meeting the Sustainability Commission
recommended that the Council approve PACE vendors that have signed onto ABAG’s
Collaborative Services Agreement, as this agreement held the vendors to a higher standard,
ensure consistency among all PACE providers that serve the city, helps to mitigate risk, and
provide for a unified voice among all Bay Area regional cities in negotiating key programmatic
elements at one time.
Background:
PACE financing can be set up and administered under one of two different pieces of legislation,
which enable PACE programs in California and several additional laws clarify and expand this
legislation:
1. California AB 811 (July 21, 2008) amended the Improvement Act of 1911, part of the
Streets and Highways Code, to include renewable energy sources and energy efficiency
upgrades in the list of public improvements that can be financed through an
assessment district. California AB 474 (January 1, 2010) and California SB 1340
(September 30, 2010) expanded AB 811 to include water efficiency improvements and
the installation of charging stations for electric vehicles.
2. California SB 555 (October 5, 2011) amended the Mello-Roos Community Facilities Act
of 1982 to allow for the creation of Community Facilities Districts (CFDs) for the purpose
of financing or refinancing the acquisition, installation and improvement of energy
efficiency, water conservation, renewable energy and electric vehicle charging
infrastructure. Individual properties can be annexed into the district and be subject to a
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special tax that is imposed to repay project financing if the City Council adopts a
resolution consenting to the inclusion of parcels in the incorporated areas of the City
within the CFD and each participating owner provides its unanimous written approval
for annexation of this property into the PACE CFD.
Both the AB 811 and SB 555 type of PACE programs, are voluntary contractual agreements
for financing between an authorized entity and the property owner, they use available
funding from any source including existing bond issuing statutes and attach the assessment
for payment of the assessment to the property.
After PACE programs started gaining traction in California in 2009, residential programs soon
encountered a significant hurdle. The Federal Housing Finance Agency (FHFA) was concerned
that residential PACE assessments had a first priority lien status superior to that of existing
mortgages underwritten by Fannie Mae and Freddie Mac. In 2010, Fannie Mae and Freddie Mac
stated that they would no longer purchase mortgage loans secured by properties with
outstanding PACE loans. This effectively stopped residential PACE programs, with the
exception of a few pilot programs. In response, in 2013, Governor Brown signed SB 96, which
directed the California Alternative Energy and Advanced Transportation Financing Authority
(CAEATFA) to develop a $10 million PACE Loss Reserve Program to mitigate the potential risk
to mortgage lenders associated with residential PACE financing. While FHFA has not changed
its position to date, the California PACE market has rapidly grown with the assurance of the
state reserve. To date, CAEATFA has not received any claims on the loss reserve from any of
the existing PACE programs enrolled.
Additionally in September 2016, Governor Brown signed AB2693, which provides additional
consumer protections for property owners requiring that prior to entering into a PACE loan, a
homeowner must be provided a financing estimate and disclosure document. This disclosure
document will notify homeowners that they may not be able to sell or refinance their home
unless the PACE loan is paid off in its entirety, as well as, annual percentage rates, product
costs, closing costs, and fees. Overall, helping customers better understand the terms of
PACE financing.
Analysis:
PACE programs provide an additional means of financing to make sustainable property
improvements more affordable and accessible to property owners. It provides capital for
renewable energy systems and a range of energy and water efficiency improvements to
buildings. A few PACE programs also include seismic upgrades as an eligible improvement.
PACE financing advantages include 100% financing for eligible improvements, a repayment
period of up to twenty years, and the reliability of pre-approved contractors.
PACE can be seen as one of the many options that a property owner has to finance an
energy/water improvement project. This offering differs from a traditional home equity line of
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credit in that eligibility is based on property equity rather than the credit worthiness of the
applicant. The repayment structure is also different than traditional financing. Debt obligations
run with the property rather than the applicant, since the repayment is generated from the
utility savings associated with the improvements. Thus, whoever owns the building is
responsible for repayment per the conditions of the agreement with the program administrator.
Terms vary by program, but are generally considered in line with market rate options for
similar improvements. As with other forms of private lending all transactions are voluntary and
no property owner is required to participate in any program.
Because the capital for the program is from private sources and transactions are between the
program administers and building owners, the City will incur no cost or risk associated with the
program activities. The City will not provide administrative support or marketing for the
programs, which are conducted by the programs administrators. Authorization by the City
Council is necessary for the programs to conduct business in the City of Cupertino, per the
requirements of AB811 and SB555.
As was directed by the Sustainability Commission, the Sustainability Division will make all the
information about the various vendors is made available to the public on the Sustainability
website, so residents and businesses can access the information they need to make an informed
decision on the PACE providers and their financing options for home energy and water
efficiency projects.
Benefits of PACE programs for City of Cupertino
Staff has identified the following benefits in allowing more than one PACE provider to serve
Cupertino property owners:
100% voluntary program, residents utilize this source of financing if they want to.
Creates competition in the marketplace and allows residents and business owners to
have a choice in their PACE provider.
Each provider has different interest rate and terms allowing owners to choose what
works for them and their specific energy efficiency/water/ solar project and financial
circumstances.
Each provider covers a different range of energy, water and seismic upgrades- so more
options means more types of projects can be eligible.
Little, if any staff, time is needed to participate, all program assessment and
administration is handled by the third party PACE service provider.
Saving money: energy and water prices continue to rise, and allowing energy and
water upgrades to existing buildings now saves money in the future.
No down payment or credit checks needed- property owners pay for upgrades overtime
when they pay their property tax bill and the interest can be tax deductible
Helps us reach our climate goals and CAP implementation
o Specifically CAP measure C-E-2 Retrofit Financing, which identifies PACE as a
way of reducing GHG and achieving our retrofit goals in existing buildings.
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PACE Program Comparison
As was recommended by the Sustainability Commission, the PACE providers to be authorized
in the attached resolutions represent PACE programs operating in California that have signed
onto the ABAG Regional Collaborative Services Agreement.
While the PACE providers are similar in nature, specific program has developed certain
expertise in certain areas, which is why it is essential to allow more than one vendor to service
our property owners. Each provider offers various interest rates, payback periods and terms,
but all provide a similar service of lending capital for energy and water upgrades to existing
buildings. Eligible products that can be financed with PACE may vary between individual
PACE providers and administrators.
A brief overview of each of the proposed PACE programs follows:
OPEN PACE
HERO Ygrene
Alliance
NRG
PACE
Funding
Group Figtree
Administrator
Renovate
America
Ygrene
Energy Fund
Counter Point
Energy
Solutions
PACE
Funding
Group
Figtree
Financing
JPA Sponsor
Western
Riverside
Council of
Governments
(WRCOG)
Golden State
Finance
Authority
(formerly CA
Home
Finance
Authority)
California Statewide
Communities Development
Authority ( CSCDA)
California
Enterprise
Development
Authority
(CEDA)
Enrolled in
CAEATFA
PACE Loan
Los Reserve
Program Yes Yes Yes Yes Yes
Legislative
Orgin AB 811
SB 555 &
AB811 AB811 AB811 AB811
Year Started 2011 2010 2014 2015 2010
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Cities in
Santa Clara
County that
have adopted
In CA 383
cities
including, San
Jose, Morgan
Hill,
Campbell,
Mountain
View, Santa
Clara & Gilroy
In CA 175
cities,
including
Campbell,
San Jose and
Santa Clara
In CA 40 cities have joined
including Campbell and
Gilroy
In CA, 149
cities and
counties in
CA including
San Jose and
Gilroy
ABAG Regional Collaborative Services Agreement
To help with the process of evaluating all the different PACE providers and JPA models, the
Association of Bay Area Governments (ABAG) has created a Regional Collaborative Services
Agreement which is modeled after successful agreements in Sonoma and Marin Counties and
is intended to ensure consistent application of key programmatic elements (“best practices”)
considered to be critically important for local government partners. These elements include
consumer protections and disclosures, local government risk mitigation and indemnification,
co-marketing complementary energy efficiency programs, contractor and project quality
assurance, and performance tracking, data, and reporting.
This will help the City of Cupertino ensure consistency among all PACE providers that serve
the city, mitigate risk, and provide for a unified voice among all Bay Area regional cities in
negotiating key programmatic elements at one time. To date, ABAG has signed agreements
with five active PACE administrators which include; HERO, FigTree, Ygrene and Open PACE
(which consolidates, Alliance NRG and PACE Funding). The Agreement for Collaborative
Services requires that PACE providers are licensed, bonded, and maintain insurance, which
minimizes risk to the City.
Sustainability Impact
The City’s 2010 GHG inventory identifies energy consumption as the largest contributor to
greenhouse gas emissions in the City at 55%. Access to financing capital for property owners to
complete energy upgrades is a critical component of Cupertino’s Climate Action Plan (CAP).
CAP measure C-E-2 Retrofit Financing, specifically identifies Property Assessed Clean Energy
(PACE) as a way of reducing GHG and achieving our retrofit goals.
CEQA
The City’s action is not a project under the California Environmental Quality Act (CEQA) because
joining joint powers agencies is not an activity that is likely to cause a direct or reasonably
foreseeable indirect change in the physical environment; or is exempt from CEQA because this
action can be seen with reasonable certainty that there is no possibility that it will have a
significant effect on the environment. [14. Cal. Code Regs. §15061(b)(3).] Moreover, the purpose
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of the PACE programs is to benefit or protect the environment, and exempt from CEQA. . [14.
Cal. Code Regs. §15308.]
Fiscal Impact
Participation in PACE programs does not impact the General Fund or any City funds. PACE
programs use private sector capital to provide property owners with funding. Joining any of
the existing PACE programs will not expose the City to financial liability.
_____________________________________
Prepared by: Misty Mersich, Sustainability Manager
Reviewed by: Jaqui Guzmán, Deputy City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A- Draft Resolution Figtree Program
B- Draft Resolution Ygrene for SB 555 & JPA Agreement
C- Draft Resolution Ygrene for AB 811 & JPA Agreement
D- Draft Resolution HERO Program & WRCOG JPA Agreement
E- Draft Resolution CSCDA Open PACE
F- Figtree Fully Executed RCSA Agreement
G- ABAG Member Acknowledgement Form_ Figtree
H- Ygrene Fully Executed RCSA
I- ABAG Member Acknowledgement Form_ Ygrene
J- WRCOG Fully Executed RCSA
K- ABAG Member Acknowledgement Form_ WRCOG
L- CounterPoint Energy Solutions (Alliance NRG) Fully Executed RCSA Agreement
M- ABAG Member Acknowledgement Form_ CounterPoint Energy Solutions (Alliance
NRG)
N- PACE Funding Fully Executed RCSA Agreement
O- ABAG Member Acknowledgement Form_ PACE Funding
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RESOLUTION NO. _______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO, CALIFORNIA, APPROVING ASSOCIATE MEMBERSHIP
BY THE CITY IN THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY; AUTHORIZING AND DIRECTING THE EXECUTION OF
AN ASSOCIATE MEMBERSHIP AGREEMENT RELATING TO
ASSOCIATE MEMBERSHIP OF THE CITY IN THE AUTHORITY;
AUTHORIZING THE CITY TO JOIN THE FIGTREE PACE PROGRAM;
AUTHORIZING THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY TO CONDUCT CONTRACTUAL ASSESSMENT
PROCEEDINGS AND LEVY CONTRACTUAL ASSESSMENTS WITHIN
THE TERRITORY OF THE CITY OF CUPERTINO; AND
AUTHORIZING RELATED ACTIONS
WHEREAS, the City of Cupertino, California (the “City”), a municipal corporation,
duly organized and existing under the Constitution and the laws of the State of California; and
WHEREAS, the City, upon authorization of the City Council, may pursuant to Chapter 5
of Division 7 of Title 1 of the Government Code of the State of California, commencing with
Section 6500 (the "JPA Law") enter into a joint exercise of powers agreement with one or more
other public agencies pursuant to which such contracting parties may jointly exercise any power
common to them; and
WHEREAS, the City and other public agencies wish to jointly participate in economic
development financing programs for the benefit of businesses and nonprofit entities within their
jurisdictions offered by membership in the California Enterprise Development Authority (the
"CEDA") pursuant to an associate membership agreement and Joint Exercise of Powers
Agreement Relating to the California Enterprise Development Authority (the “Agreement”); and
WHEREAS, under the JPA Law and the Agreement, CEDA is a public entity separate
and apart from the parties to the Agreement and the debts, liabilities and obligations of CEDA
will not be the debts, liabilities or obligations of the City or the other members of the Authority;
and
WHEREAS, the form of Associate Membership Agreement (the “Associate Membership
Agreement”) between the City and CEDA is attached; and
WHEREAS, the City is willing to become an Associate Member of CEDA subject to the
provisions of the Associate Membership Agreement.
WHEREAS, CEDA has adopted the Figtree Property Assessed Clean Energy (PACE) and
Job Creation Program (the “Program” or “Figtree PACE”), to allow the financing of certain
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renewable energy, energy efficiency, seismic retrofits, electric vehicle charging infrastructure,
and water efficiency improvements (the "Improvements") through the levy of contractual
assessments pursuant to Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter
29"), and the issuance of improvement bonds or other evidences of indebtedness (the "Bonds")
under the Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 et seq.)
(the "1915 Act") upon the security of the unpaid contractual assessments; and
WHEREAS, Chapter 29 provides that assessments may be levied under its provisions only
with the free and willing consent of the owner of each lot or parcel on which an assessment is
levied at the time the assessment is levied; and
WHEREAS, the City desires to allow the owners of property (“Participating Parcel”)
within its jurisdiction ("Participating Property Owners") to participate in Figtree PACE, and to
allow CEDA to conduct assessment proceedings under Chapter 29 and to issue Bonds under the
1915 Act to finance the Improvements; and
WHEREAS, CEDA will conduct assessment proceedings under Chapter 29 to establish an
assessment district (the “District”) and issue Bonds under the 1915 Act to finance Improvements;
and
WHEREAS, there has been presented to this meeting a proposed form of Resolution of
Intention to be adopted by CEDA in connection with such assessment proceedings (the "ROI"), a
copy of which is attached hereto as Exhibit A; and
WHEREAS, said ROI sets forth the territory within which assessments may be levied for
Figtree PACE which territory shall be coterminous with the City's official boundaries of record
at the time of adoption of the ROI (the "Boundaries"); and
WHEREAS, pursuant to Chapter 29, the City authorizes CEDA to conduct assessment
proceedings, levy assessments, pursue remedies in the event of delinquencies, and issue bonds or
other forms of indebtedness to finance the Improvements in connection with Figtree PACE; and
WHEREAS, to protect the City in connection with operation of the Figtree PACE
program, Figtree Energy Financing, the program administrator, has agreed to defend and
indemnify the City; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings, the levy of assessments, any required remedial action in the case of delinquencies,
the issuance, sale or administration of the bonds or other indebtedness issued in connection with
Figtree PACE.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Cupertino, hereby finds, determines and declares as follows:
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Section 1. The City Council hereby specifically finds and declares that the actions
authorized hereby constitute public affairs of the City. The City Council further finds that the
statements, findings and determinations of the City set forth in the preambles above are true and
correct.
Section 2. The Associate Membership Agreement presented to this meeting and on file
with the City Clerk is hereby approved. The Mayor of the City, the City Manager, the City Clerk
and other officials of the City are each hereby authorized and directed, for and on behalf of the
City, to execute and deliver the Associate Membership Agreement in substantially said form,
with such changes therein as such officer may require or approve, such approval to be
conclusively evidenced by the execution and delivery thereof.
Section 3. The officers and officials of the City are hereby authorized and directed,
jointly and severally, to do any and all things and to execute and deliver any and all documents
which they may deem necessary or advisable in order to consummate, carry out, give effect to
and comply with the terms and intent of this resolution and the Associate Membership
Agreement. All such actions heretofore taken by such officers and officials are hereby
confirmed, ratified and approved.
Section 4. Good Standing. The City is a municipal corporation and in good standing.
Section 5. Public Benefits. On the date hereof, the City Council hereby finds and
determines that the Program and issuance of Bonds by CEDA in connection with Figtree PACE
will provide significant public benefits, including without limitation, savings in effective interest
rates, bond preparation, bond underwriting and bond issuance costs and reductions in effective
user charges levied by water and electricity providers within the boundaries of the City.
Section 6. Appointment of CEDA. The City hereby appoints CEDA as its
representative to (i) record the assessment against the Participating Parcels, (ii) administer the
District in accordance with the Improvement Act of 1915 (Chapter 29 Part 1 of Division 10 of
the California Streets and Highways Code (commencing with Section 8500 et seq.) (the “Law”),
(iii) prepare program guidelines for the operations of the Program and (iv) proceed with any
claims, proceedings or legal actions as shall be necessary to collect past due assessments on the
properties within the District in accordance with the Law and Section 6509.6 of the California
Government Code. The City is not and will not be deemed to be an agent of Figtree or CEDA as
a result of this Resolution.
Section 7. Assessment Proceedings. In connection with Figtree PACE, the City hereby
consents to the special assessment proceedings by CEDA pursuant to Chapter 29 on any property
within the Boundaries and the issuance of Bonds under the 1915 Act, provided that:
(1) Such proceedings are conducted pursuant to one or more Resolutions of Intention in
substantially the form of the ROI;
(2) The Participating Property Owners, who shall be the legal owners of such property,
voluntarily execute a contract pursuant to Chapter 29 and comply with other
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applicable provisions of California law in order to accomplish the valid levy of
assessments; and
(3) The City will not be responsible for the conduct of any assessment proceedings, the
levy of assessments, any required remedial action in the case of delinquencies in such
assessment payments, or the issuance, sale or administration of the Bonds in
connection with Figtree PACE.
Section 8. Program Report. The City Council hereby acknowledges that pursuant to the
requirements of Chapter 29, CEDA has prepared and will update from time to time the "Program
Report" for Figtree PACE (the "Program Report") and associated documents, and CEDA will
undertake assessment proceedings and the financing of Improvements as set forth in the Program
Report.
Section 9. Foreclosure. The City Council hereby acknowledges that the Law permits
foreclosure in the event that there is a default in the payment of assessments due on a property.
The City Council hereby designates CEDA as its representative to proceed with collection and
foreclosure of the liens on the defaulting properties within the District, including accelerated
foreclosure pursuant to the Program Report.
Section 10. Indemnification. The City Council acknowledges that Figtree has provided
the City with an indemnification agreement, as shown in Exhibit B, for negligence or
malfeasance of any type as a result of the acts or omissions of Figtree, its officers, employees,
subcontractors and agents. The City Council hereby authorizes the appropriate officials and staff
of the City to execute and deliver the Indemnification Agreement to Figtree.
Section 11. City Contact Designation. The appropriate officials and staff of the City are
hereby authorized and directed to make applications for Figtree PACE available to all property
owners who wish to finance Improvements. The following staff persons, together with any other
staff designated by the City Manager from time to time, are hereby designated as the contact
persons for CEDA in connection with Figtree PACE: Misty Mersich, Sustainability Manager,
408-777-3362, MistyM@cupertino.org .
Section 12. CEQA. The City Council hereby finds that adoption of this Resolution is not
a "project" under the California Environmental Quality Act (“CEQA”), because the Resolution
does not involve any commitment to a specific project which may result in a potentially
significant physical impact on the environment, as contemplated by Title 14, California Code of
Regulations, Section 15378(b )( 4)).
Section 13. Effective Date. This Resolution shall take effect immediately upon its
adoption. The City Clerk is hereby authorized and directed to transmit a certified copy of this
resolution to Figtree Energy Financing.
Section 14. Costs. Services related to the formation and administration of the assessment
district will be provided by CEDA at no cost to the City.
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PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of
Cupertino the 7th day of February, 2017 by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor, City of
Cupertino
CERTIFICATE OF CLERK OF THE CITY COUNCIL
CITY OF ____________
I, _______________, Clerk of the City of __________, hereby certify that the foregoing
is a full, true and correct copy of a resolution duly adopted at the meeting of the City Council of
the City of Cupertino duly and regularly held in the Council Chambers, -
______________________, on ____ ___, 201_, of which meeting all of the members of said
City Council had due notice.
I further certify that I have carefully compared the foregoing copy with the original
minutes of said meeting on file and of record in my office; that said copy is a full, true and
correct copy of the original resolution adopted at said meeting and entered in said minutes; and
that said resolution has not been amended, modified, rescinded or revoked in any manner since
the date of its adoption, and the same is now in full force and effect.
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IN WITNESS WHEREOF, I have executed this certificate this ___ day of __________,
201_.
____________________________________
City Clerk
City of Cupertino
EXHIBIT A
CEDA Resolution of Intention
203
RESOLUTION OF THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY DECLARING INTENTION TO FINANCE INSTALLATION OF
DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES, ENERGY
EFFICIENCY, SEISMIC RETROFITS, ELECTRIC VEHICLE CHARING
INFRASTRUCTURE, AND WATER EFFICIENCY IMPROVEMENTS IN THE
CITY OF CUPERTINO
WHEREAS, the California Enterprise Development Authority (“CEDA”) is a joint
powers authority authorized and existing pursuant to Joint Powers Act (Government Code
Section 6500 et seq.) and that certain Joint Exercise of Powers Agreement (the “Agreement”)
dated as of June 1, 2006, by and among the cities of Eureka, Lancaster and Selma; and
WHEREAS, CEDA is authorized under the Agreement and Chapter 5 of Division 7 of
Title 1 of the Government Code of the State of California and in accordance with Chapter 29 of
Part 3 of Division 7 of the Streets & Highways Code of the State of California (“Chapter 29”) to
authorize assessments to finance the installation of distributed generation renewable energy
sources, energy efficiency, seismic retrofits, electric vehicle charging infrastructure, and water
efficiency improvements that are permanently fixed to real property (“Authorized
Improvements”); and
WHEREAS, CEDA has obtained authorization from the City of Cupertino (the “City”)
to enter into contractual assessments for the financing of the installation of Authorized
Improvements in the City; and
WHEREAS, CEDA desires to declare its intention to establish a Figtree PACE program
(“Figtree PACE”) in the City, pursuant to which CEDA, subject to certain conditions set forth
herein, would enter into contractual assessments to finance the installation of Authorized
Improvements in the City.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY, AS FOLLOWS:
Section 1. Findings. The Board of Directors hereby finds and determines the following:
(a) The above recitals are true and correct and are incorporated herein by this
reference.
(b) Energy and water conservation efforts, including the promotion of Authorized
Improvements to residential, commercial, industrial, or other real property, are
necessary to address the issue of global climate change and the reduction of
greenhouse gas emissions in the City.
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(c) The upfront cost of making residential, commercial, industrial, or other real
property more energy and water efficient, along with the fact that most
commercial loans for that purpose are due on the sale of the property, prevents
many property owners from installing Authorized Improvements.
(d) A public purpose will be served by establishing a contractual assessment program,
to be known as Figtree PACE, pursuant to which CEDA will finance the
installation of Authorized Improvements to residential, commercial, industrial, or
other real property in the City.
Section 2. Determination of Public Interest. The Board of Directors hereby
determines that (a) it would be convenient, advantageous, and in the public interest to designate
an area, which shall encompass the entire geographic territory within the boundaries of the City,
within which CEDA and property owners within the City may enter into contractual assessments
to finance the installation of Authorized Improvements pursuant to Chapter 29 and (b) it is in the
public interest for CEDA to finance the installation of Authorized Improvements in the County
pursuant to Chapter 29.
Section 3. Identification of Authorized Improvements. CEDA hereby declares its
intention to make contractual assessment financing available to property owners to finance
installation of Authorized Improvements, including but not limited to those improvements
detailed in the Report described in Section 8 hereof (the “Report”), as that Report may be
amended from time to time.
Section 4. Identification of Boundaries. Contractual assessments may be entered into
by property owners located within the entire geographic territory of the City including
unincorporated territory within City Boundaries. A property owner located within a City within
the City may enter into contractual assessments with CEDA only after such City has adopted a
resolution to authorize participation in the PACE Program.
Section 5. Proposed Financing Arrangements. Under Chapter 29, CEDA may issue
bonds, notes or other forms of indebtedness (the “Bonds”) pursuant to Chapter 29 that are
payable by contractual assessments. Division 10 (commencing with Section 8500) of the Streets
& Highways Code of the State (the “Improvement Bond Act of 1915”) shall apply to any
indebtedness issued pursuant to Chapter 29, insofar as the Improvement Bond Act of 1915 is not
in conflict with Chapter 29. The creditworthiness of a property owner to participate in the
financing of Authorized Improvements will be based on the criteria developed by Figtree Energy
Financing (the “Program Administrator”) upon consultation with Figtree PACE Program
underwriters or other financial representatives, CEDA general counsel and bond counsel, and as
shall be approved by the Board of Directors of CEDA. In connection with indebtedness issued
under the Improvement Bond Act of 1915 that are payable from contractual assessments, serial
and/or term improvement bonds or other indebtedness shall be issued in such series and shall
mature in such principal amounts and at such times (not to exceed 20 years from the second day
of September next following their date) and at such rate or rates of interest (not to exceed the
maximum rate permitted by applicable law) as shall be determined by the Board of Directors at
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the time of the issuance and sale of the indebtedness. The provisions of Part 11.1 of the
Improvement Bond Act of 1915 shall apply to the calling of the bonds. It is the intention of the
Board of Directors to create a special reserve fund for the bonds under Part 16 of the
Improvement Bond Act of 1915. Neither CEDA, nor any of its members participating in the
Figtree PACE Program, shall advance available surplus funds from its treasury to cure any
deficiency in the redemption fund to be created with respect to the indebtedness; provided,
however, that this determination shall not prevent CEDA or any of its members from, in their
sole discretion, so advancing funds. The Bonds may be refunded under Division 11.5 of the
California Streets and Highways Code or other applicable laws permitting refunding, upon the
conditions specified by and upon determination of CEDA.
CEDA hereby authorizes the Program Administrator, upon consultation with CEDA
general counsel, bond counsel and the Figtree PACE underwriter, to commence preparation of
documents and take necessary steps to prepare for the issuance of bonds, notes or other forms of
indebtedness as authorized by Chapter 29.
In connection with the issuance of bonds payable from contractual assessments, CEDA
expects to obligate itself, through a covenant with the owners of the bonds, to exercise its
foreclosure rights with respect to delinquent contractual assessment installments under specified
circumstances.
Section 6. Public Hearing. Pursuant to the Act, CEDA hereby orders that a public
hearing be held before CEDA Board (the “Board”), at 550 Bercut Drive, Suite G, Sacramento,
CA 95811, on _________, __________, at _____ A_, for the purposes of allowing interested
persons to object to, or inquire about, the proposed Figtree PACE Program. The public hearing
may be continued from time to time as determined by the Board for a time not exceeding a total
of 180 days.
At the time of the hearing, the Report described in Section 8 hereof shall be summarized,
and the Board shall afford all persons who are present an opportunity to comment upon, object
to, or present evidence with regard to the proposed Figtree PACE Program, the extent of the area
proposed to be included within the boundaries of the assessment district, the terms and
conditions of the draft assessment contract described in Section 8 hereof (the “Contract”), or the
proposed financing provisions. Following the public hearing, CEDA may adopt a resolution
confirming the Report (the “Resolution Confirming Report”) or may direct the Report’s
modification in any respect, or may abandon the proceedings.
The Board hereby orders the publication of a notice of public hearing once a week for
two successive weeks. Two publications in a newspaper published once a week or more often,
with at least five days intervening between the respective publication dates not counting such
publication dates are sufficient. The period of notice will commence upon the first day of
publication and terminate at the end of the fourteenth day. The first publication shall occur not
later than 20 days before the date of the public hearing.
Section 7. Notice to Water and Electric Providers. Pursuant to Section 5898.24 of the
206
Streets & Highways Code, written notice of the proposed contractual assessment program within
the City to all water and electric providers within the boundaries of the City has been provided.
Section 8. Report. The Board hereby directs the Program Administrator to prepare the
Report and file said Report with the Board at or before the time of the public hearing described
in Section 6 hereof containing all of the following:
(a) A map showing the boundaries of the territory within which contractual
assessments are proposed to be offered, as set forth in Section 4 hereof.
(b) A draft contractual assessment contract (the “Contract”) specifying the terms and
conditions of the agreement between CEDA and a property owner.
(c) A statement of CEDA’s policies concerning contractual assessments including all
of the following:
(1) Identification of types of Authorized Improvements that may be financed
through the use of contractual assessments.
(2) Identification of the CEDA official authorized to enter into contractual
assessments on behalf of CEDA.
(3) A maximum aggregate dollar amount of contractual assessments.
(4) A method for setting requests from property owners for financing through
contractual assessments in priority order in the event that requests appear
likely to exceed the authorization amount.
(d) A plan for raising a capital amount required to pay for work performed in
connection with contractual assessments. The plan may include the sale of a bond
or bonds or other financing relationship pursuant to Section 5898.28 of Chapter
29. The plan (i) shall include a statement of, or method for determining, the
interest rate and time period during which contracting property owners would pay
any assessment, (ii) shall provide for any reserve fund or funds, and (iii) shall
provide for the apportionment of all or any portion of the costs incidental to
financing, administration and collection of the contractual assessment program
among the consenting property owners and CEDA.
A report on the results of the discussions with the County Auditor-Controller described in
Section 10 hereof, concerning the additional fees, if any, that will be charged to CEDA for
inclusion of the proposed contractual assessments on the general property tax roll of the City,
and a plan for financing the payment of those fees.
Section 9. Nature of Assessments. Assessments levied pursuant to Chapter 29, and the
interest and any penalties thereon, will constitute a lien against the lots and parcels of land on
which they are made, until they are paid. Unless otherwise directed by CEDA, the assessments
shall be collected in the same manner and at the same time as the general taxes of the City on
real property are payable, and subject to the same penalties and remedies and lien priorities in the
event of delinquency and default.
Section 10. Consultations with County Auditor-Controller. CEDA hereby directs the
Program Administrator to enter into discussions with the County Auditor-Controller in order to
207
reach agreement on what additional fees, if any, will be charged to CEDA for incorporating the
proposed contractual assessments into the assessments of the general taxes of the County on real
property.
Section 11. Preparation of Current Roll of Assessment. Pursuant to Section
5898.24(c), CEDA hereby designates the Program Administrator as the responsible party for
annually preparing the current roll of assessment obligations by assessor’s parcel number on
property subject to a voluntary contractual assessment.
Section 12. Procedures for Responding to Inquiries. The Program Administrator shall
establish procedures to promptly respond to inquiries concerning current and future estimated
liability for a voluntary contractual assessment.
Section 13. Effective Date. This resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED this _____ day of ______, 201_.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
By:____________________________
Gurbax Sahota, Chair
ATTEST:
______________________________________
Helen Schaubmayer, Assistant Secretary
208
EXHIBIT B
Indemnification Agreement
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF CUPERTINO, CALIFORNIA AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the “Agreement”) is entered into by and between the City of
Cupertino, a municipal corporation or political subdivision, duly organized and existing under the
laws of the State of California (the “City”) and Figtree Company, Inc., a California corporation,
the administrator of the Figtree Property Assessed Clean Energy and Job Creation Program (the
“Administrator”), which is a program of the California Enterprise Development Authority, a
California joint exercise of powers authority (the “Authority”).
RECIT ALS
WHEREAS, the Authority is a joint exercise of powers authority whose members include
the City in addition to other cities and counties in the State of California; and
WHEREAS, the Authority established the Figtree Property Assessed Clean Energy and Job
Creation Program (the “Figtree PACE Program”) to allow the financing of certain renewable
energy, energy efficiency and water efficiency improvements that are permanently affixed to real
property through the levy of assessments voluntarily agreed to by the participating property
owners pursuant to Chapter 29 of Division 7 of the Streets and Highways Code (“Chapter 29”) and
the issuance of improvement bonds, or other forms of indebtedness, under the Improvement Bond
Act of 1915 upon the security of the unpaid assessments; and
WHEREAS, the Authority has conducted or will conduct proceedings required by Chapter
29 with respect to the territory within the boundaries of the City; and
WHEREAS, the legislative body of the City adopted or will adopt a resolution authorizing
the City to join the Figtree PACE Program; and
WHEREAS, the City will not be responsible for the formation, operation and
administration of the Figtree PACE Program as well as the sale and issuance of any bonds or other
forms of indebtedness in connection therewith, including the conducting of assessment proceedings,
the levy and collection of assessments and any remedial action in the case of such assessment
payments, and the offer, sale and administration of any bonds issued by the Authority on behalf of
the Figtree PACE Program; and
209
13
WHEREAS, the Administrator is the administrator of the Figtree PACE Program and
agrees to indemnify the City in connection with the operations of the Figtree PACE Program as set
forth herein;
NOW, THERFORE, in consideration of the above premises and of the City’s agreement to
join the Figtree PACE Program, the parties agree as follows:
1. Indemnification. Figtree has provided the CEDA with an indemnification for
negligence or malfeasance of any type as a result of the acts or omissions of Figtree, its officers,
employees, subcontractors and agents, arising from or related to the Figtree PACE Program, the
assessments, the assessment districts, the improvements or the financing and marketing thereof.
Figtree agrees to defend, indemnify and hold harmless the City, its officers, elected or appointed
officials, employees, agents and volunteers from and against any and all actions, suits, proceedings,
claims, demands, losses, costs and expenses, including legal costs and attorneys’ fees, for injury or
damage due to negligence or malfeasance of any type claims as a result of the acts or omissions of
Figtree, except for such loss or damage which was caused by the sole negligence or willful
misconduct of the City. This indemnity shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as limitation upon the amount of
indemnification to be provided by Figtree.
2. Amendment/Interpretation of this Agreement. This Agreement represents the
entire understanding of the parties as to those matters contained herein. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered hereunder. No
supplement, modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. This Agreement shall not be interpreted for or against any
part y by reason of the fact that such party may have drafted this Agreement or any of its
provisions.
3. Section Headings. Section headings in this Agreement are included for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose.
4. Waiver. No waiver of any of the provisions of this Agreement shall be binding
unl ess in the form of writing signed by the party against whom enforcement is sought, and no such
wai ver shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall
such waiver constitute a continuing waiver. Except as specifically provided herein, no failure to
exercise or an y delay in exercising any right or remedy hereunder shall constitute a waiver thereof.
5. Severability and Governing Law. If any provision or portion thereof of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise
unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by
law. This Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of California applicable to contracts made and to be performed in California.
6. Notices. All notices, demands and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
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14
If to the Administrator Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
Attn: Chief Executive Officer
If to the City: City of Cupertino
10300 Torre Ave
Cupertino, CA 95014
Attention: City Manager
7. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, which together shall constitute the same instrument.
8. Effective Date. This Agreement will be effective as of the date of the signature of
City’s representative as indicated below in the signature block.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date below.
211
4825-8409-6773.1 1
APPROVED AS TO FORM:
City Attorney
City of Cupertino
By
Name:
Title:
Date:
Figtree Company, Inc., a California corp.
By
Name: Peter Grabell
Title: Senior Vice President
Date:
212
City CFD Opt-In - 1 -
82671.00001\9523870.4
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO, CALIFORNIA
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE CITY’S JURISDICTION
IN THE CALIFORNIA HOME FINANCE AUTHORITY COMMUNITY FACILITIES
DISTRICT NO. 2014-1 (CLEAN ENERGY) TO FINANCE RENEWABLE ENERGY
IMPROVEMENTS, ENERGY EFFICIENCY AND WATER CONSERVATION
IMPROVEMENTS AND ELECTRIC VEHICLE CHARGING INFRASTRUCTURE AND
APPROVING ASSOCIATE MEMBERSHIP IN THE JOINT EXERCISE OF POWERS
AUTHORITY RELATED THERETO
Recitals
WHEREAS, the California Home Finance Authority, a California joint powers authority,
(the “Authority”) has established the Community Facilities District No. 2014-1(Clean Energy) in
accordance with the Mello-Roos Community Facilities Act, set forth in sections 53311 through
53368.3 of the California Government Code (the “Act”) and particularly in accordance with
sections 53313.5(l) and 53328.1(a) (the “District”); and
WHEREAS, the purpose of the District is to finance or refinance (including the payment
of interest) the acquisition, installation, and improvement of energy efficiency, water
conservation, renewable energy and electric vehicle charging infrastructure improvements
permanently affixed to private or publicly-owned real property (the “Authorized
Improvements”); and
WHEREAS, the Authority is in the process of amending the Authority Joint Powers
Agreement (the “Authority JPA”) to formally change its name to the Golden State Finance
Authority; and
WHEREAS, the City of Cupertino is committed to development of renewable energy
generation and energy efficiency improvements, reduction of greenhouse gases, and protection
of the environment; and
WHEREAS, in the Act, the Legislature has authorized a parcel within the territory of the
District to annex to the District and be subject to the special tax levy of the District only (i) if the
city or county within which the parcel is located has consented, by the adoption of a resolution
by the applicable city council or county board of supervisors, to the inclusion of parcels within
its boundaries in the District and (ii) with the unanimous written approval of the owner or owners
of the parcel when it is annexed (the “Unanimous Approval Agreement”), which, as provided in
section 53329.6 of the Act, shall constitute the election required by the California Constitution;
and
WHEREAS, the City wishes to provide innovative solutions to its property owners to
achieve energy efficiency and water conservation and in doing so cooperate with Authority in
order to efficiently and economically assist property owners the City in financing such
Authorized Improvements; and
213
City CFD Opt-In - 2 -
82671.00001\9523870.4
WHEREAS, the Authority has established the District, as permitted by the Act, the
Authority JPA, originally made and entered into July 1, 1993, as amended to date, and the City,
desires to become an Associate Member of the JPA by execution of the JPA Agreement, a copy
of which is attached as Exhibit “A” hereto, to participate in the programs of the JPA and, to
assist property owners within the incorporated area of the City in financing the cost of installing
Authorized Improvements; and
WHEREAS, the City will not be responsible for the conduct of any special tax
proceedings; the levy and collection of special taxes or any required remedial action in the case
of delinquencies in the payment of any special taxes in connection with the District.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City’s incorporated
area will be benefited by the availability of the Authority CFD No. 2014-1 (Clean Energy) to
finance the installation of the Authorized Improvements.
2. This City Council consents to inclusion in the Authority CFD No. 2014-1 (Clean
Energy) of all of the properties in the incorporated area within the City and to the Authorized
Improvements, upon the request of and execution of the Unanimous Approval Agreement by the
owners of such properties when such properties are annexed, in compliance with the laws, rules
and regulations applicable to such program; and to the assumption of jurisdiction thereover by
Authority for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the Authority CFD No. 2014-1 (Clean Energy) and
authorizes Authority, upon satisfaction of the conditions imposed in this resolution, to take each
and every step required for or suitable for financing the Authorized Improvements.
4. This City Council hereby approves joining the JPA as an Associate Member and
authorizes the execution by appropriate City officials of any necessary documents to effectuate
such membership.
5. City staff is authorized and directed to coordinate with Authority staff to facilitate
operation of the Authority CFD No. 2014-1 (Clean Energy) within the City, and report back
periodically to this City Council on the success of such program.
6. This Resolution shall take effect immediately upon its adoption. The City Clerk
is directed to send a certified copy of this resolution to the Secretary of the Authority.
PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of
Cupertino the 7th day of February, 2017 by the following vote:
Vote Members of the City Council
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City CFD Opt-In - 3 -
82671.00001\9523870.4
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor, City of
Cupertino
215
City CFD Opt-In -4 -
82671.00001\9523870.4
Exhibit A
JPA Agreement
216
CALIFORNIA HOME FINANCE AUTHORITY
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(Original date July 1, 1993 and as last amended and restated December 10, 2014)
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(“Agreement”) is entered into by and among the counties listed on Attachment 1 hereof and
incorporated herein by reference. All such counties are referred to herein as "Members" with the
respective powers, privileges and restrictions provided herein.
RECITALS
A.WHEREAS, the California Rural Home Mortgage Finance Authority (“CRHMFA”) was
created by a Joint Exercise of Powers Agreement dated July 1, 1993 pursuant to the Joint Exercise
of Powers Act (commencing with Article 1 of Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California (the “Act”). By Resolution 2003-02, adopted on
January 15, 2003, the name of the authority was changed to CRHMFA Homebuyers Fund. The
most recent amendment to the Joint Exercise of Powers Agreement was on January 28, 2004.
B.WHEREAS, the Members of CRHMFA Homebuyers Fund desire to update, reaffirm,
clarify and revise certain provisions of the joint powers agreement, including the renaming of the
joint powers authority, as set forth herein.
C.WHEREAS, the Members are each empowered by law to finance the construction,
acquisition, improvement and rehabilitation of real property.
D.WHEREAS, by this Agreement, the Members desire to create and establish a joint powers
authority to exercise their respective powers for the purpose of financing the construction,
acquisition, improvement and rehabilitation of real property within the jurisdiction of the Authority
as authorized by the Act.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Members
individually and collectively agree as follows:
1.Definitions
Unless the context otherwise requires, the following terms shall for purposes of this
Agreement have the meanings specified below:
"Act" means the Joint Exercise of Powers Act, commencing with Article 1 of Chapter 5 of
Division 7 of Title 1 of the Government Code of the State of California, including the Marks-Roos
Local Bond Pooling Act of 1985, as amended.
"Agreement" means this Joint Exercise of Powers Agreement, as the same now exists or as it
may from time to time be amended as provided herein.
Exhibit A
217
"Associate Member" means a county, city or other public agency which is not a voting
member of the Rural County Representatives of California, a California nonprofit corporation
(“RCRC”), with legal power and authority similar to that of the Members, admitted pursuant to
paragraph 4.d. below to associate membership herein by vote of the Board.
“Audit Committee” means a committee made up of the nine-member Executive
Committee.
"Authority" means California Home Finance Authority (“CHF”), formerly known as
CRHMFA Homebuyers Fund or California Rural Home Mortgage Finance Authority.
"Board" means the governing board of the Authority as described in Section 7 below.
"Bonds" means bonds, notes, warrants, leases, certificates of participation, installment
purchase agreements, loan agreements and other securities or obligations issued by the Authority,
or financing agreements entered into by the Authority pursuant to the Act and any other obligation
within the meaning of the term "Bonds" under the Act.
“Delegate” means the Supervisor designated by the governing board of each Member to
serve on the Board of the Authority.
“Executive Committee” means the nine-member Executive Committee of the Board
established pursuant to Section 10 hereof.
"Member" means any county which is a member of RCRC, has executed this Agreement
and has become a member of the Authority.
“Obligations” means bonds, notes, warrants, leases, certificates of participation, installment
purchase agreements, loan agreements and other securities or obligations issued by the Authority,
or financing agreements entered into by the Authority pursuant to the Act and any other financial
or legal obligation of the Authority under the Act.
“Program” or “Project” means any work, improvement, program, project or service
undertaken by the Authority.
"Rural County Representatives of California" or “RCRC” means the nonprofit entity
incorporated under that name in the State of California.
“Supervisor” means an elected County Supervisor from an RCRC member county.
2. Purpose
The purpose of the Authority is to provide financing for the acquisition, construction, ,
improvement and rehabilitation of real property in accordance with applicable provisions of law
for the benefit of residents and communities. In pursuit of this purpose, this Agreement provides
for the joint exercise of powers common to any of its Members and Associate Members as
provided herein, or otherwise authorized by the Act and other applicable laws, including assisting
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in financing as authorized herein, jointly exercised in the manner set forth herein.
3. Principal Place of Business
The principal office of the Authority shall be 1215 K Street, Suite 1650, Sacramento,
California 95814.
4. Creation of Authority; Addition of Members or Associate Members
a. The Authority is hereby created pursuant to the Act. As provided in the Act, the
Authority shall be a public entity separate and distinct from the Members or Associate Members.
b. The Authority will cause a notice of this Agreement or any amendment hereto to
be prepared and filed with the office of the Secretary of State of California in a timely fashion in
the manner set forth in Section 6503.3 of the Act.
c. A county that is a member of RCRC may petition to become a member of the
Authority by submitting to the Board a resolution or evidence of other formal action taken by its
governing body adopting this Agreement. The Board shall review the petition for membership
and shall vote to approve or disapprove the petition. If the petition is approved by a majority of
the Board, such county shall immediately become a Member of the Authority.
d. An Associate Member may be added to the Authority upon the affirmative
approval of its respective governing board and pursuant to action by the Authority Board upon
such terms and conditions, and with such rights, privileges and responsibilities, as may be
established from time to time by the Board. Such terms and conditions, and rights, privileges and
responsibilities may vary among the Associate Members. Associate Members shall be entitled to
participate in one or more programs of the Authority as determined by the Board, but shall not be
voting members of the Board. The Executive Director of the Authority shall enforce the terms
and conditions for prospective Associate Members to the Authority as provided by resolution of
the Board and as amended from time to time by the Board. Changes in the terms and conditions
for Associate Membership by the Board will not constitute an amendment of this Agreement.
5. Term and Termination of Powers
This Agreement shall become effective from the date hereof until the earlier of the time
when all Bonds and any interest thereon shall have been paid in full, or provision for such
payment shall have been made, or when the Authority shall no longer own or hold any interest in a
public capital improvement or program. The Authority shall continue to exercise the powers
herein conferred upon it until termination of this Agreement, except that if any Bonds are issued
and delivered, in no event shall the exercise of the powers herein granted be terminated until all
Bonds so issued and delivered and the interest thereon shall have been paid or provision for such
payment shall have been made and any other debt incurred with respect to any other financing
program established or administered by the Authority has been repaid in full and is no longer
outstanding.
6. Powers; Restriction upon Exercise
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a. To effectuate its purpose, the Authority shall have the power to exercise any and all
powers of the Members or of a joint powers authority under the Act and other applicable
provisions of law, subject, however, to the conditions and restrictions herein contained. Each
Member or Associate Member may also separately exercise any and all such powers. The powers
of the Authority are limited to those of a general law county.
b. The Authority may adopt, from time to time, such resolutions, guidelines, rules and
regulations for the conduct of its meetings and the activities of the Authority as it deems necessary
or desirable to accomplish its purpose.
c. The Authority shall have the power to finance the construction, acquisition,
improvement and rehabilitation of real property, including the power to purchase, with the
amounts received or to be received by it pursuant to a bond purchase agreement, bonds issued by
any of its Members or Associate Members and other local agencies at public or negotiated sale, for
the purpose set forth herein and in accordance with the Act. All or any part of such bonds so
purchased may be held by the Authority or resold to public or private purchasers at public or
negotiated sale. The Authority shall set any other terms and conditions of any purchase or sale
contemplated herein as it deems necessary or convenient and in furtherance of the Act. The
Authority may issue or cause to be issued Bonds or other indebtedness, and pledge any of its
property or revenues as security to the extent permitted by resolution of the Board under any
applicable provision of law. The Authority may issue Bonds in accordance with the Act in order
to raise funds necessary to effectuate its purpose hereunder and may enter into agreements to
secure such Bonds. The Authority may issue other forms of indebtedness authorized by the Act,
and to secure such debt, to further such purpose. The Authority may utilize other forms of capital,
including, but not limited to, the Authority’s internal resources, capital markets and other forms of
private capital investment authorized by the Act..
d. The Authority is hereby authorized to do all acts necessary for the exercise of its
powers, including, but not limited to:
(1) executing contracts,
(2) employing agents, consultants and employees,
(3) acquiring, constructing or providing for maintenance and operation of any
building, work or improvement,
(4) acquiring, holding or disposing of real or personal property wherever
located, including property subject to mortgage,
(5) incurring debts, liabilities or obligations,
(6) receiving gifts, contributions and donations of property, funds, services and
any other forms of assistance from persons, firms, corporations or
governmental entities,
(7) suing and being sued in its own name, and litigating or settling any suits or
claims,
(8) doing any and all things necessary or convenient to the exercise of its
specific powers and to accomplishing its purpose
(9) establishing and/or administering districts to finance and refinance the
acquisition, installation and improvement of energy efficiency, water
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conservation and renewable energy improvements to or on real property
and in buildings. The Authority may enter into one or more agreements,
including without limitation, participation agreements and implementation
agreements to implement such programs.
e. Subject to the applicable provisions of any indenture or resolution providing for the
investment of monies held thereunder, the Authority shall have the power to invest any of its funds
as the Board deems advisable, in the same manner and upon the same conditions as local agencies
pursuant to Section 53601 of the Government Code of the State of California.
f. All property, equipment, supplies, funds and records of the Authority shall be
owned by the Authority, except as may be provided otherwise herein or by resolution of the
Board.
g. Pursuant to the provisions of Section 6508.1 of the Act, the debts, liabilities and
obligations of the Authority shall not be debts, liabilities and obligations of the Members or
Associate Members. Any Bonds, together with any interest and premium thereon, shall not
constitute debts, liabilities or obligations of any Member. The Members or Associate Members
hereby agree that any such Bonds issued by the Authority shall not constitute general obligations of
the Authority but shall be payable solely from the moneys pledged to the repayment of principal or
interest on such Bonds under the terms of the resolution, indenture, trust, agreement or other
instrument pursuant to which such Bonds are issued. Neither the Members or Associate
Members nor the Authority shall be obligated to pay the principal of or premium, if any, or
interest on the Bonds, or other costs incidental thereto, except from the revenues and funds
pledged therefor, and neither the faith and credit nor the taxing power of the Members or
Associate Members or the Authority shall be pledged to the payment of the principal of or
premium, if any, or interest on the Bonds, nor shall the Members or Associate Members of the
Authority be obligated in any manner to make any appropriation for such payment. No covenant
or agreement contained in any Bond shall be deemed to be a covenant or agreement of any
Delegate, or any officer, agent or employee of the Authority in an individual capacity, and neither
the Board nor any officer thereof executing the Bonds or any document related thereto shall be
liable personally on any Bond or be subject to any personal liability or accountability by reason of
the issuance of any Bonds.
7. Governing Board
a. The Board shall consist of the number of Delegates equal to one representative
from each Member.
b. The governing body of each Member shall appoint one of its Supervisors to serve
as a Delegate on the Board. A Member’s appointment of its Delegate shall be delivered in writing
(which may be by electronic mail) to the Authority and shall be effective until he or she is replaced
by such governing body or no longer a Supervisor; any vacancy shall be filled by the governing
body of the Member in the same manner provided in this paragraph b..
c. The governing body of each Member of the Board shall appoint a Supervisor as an
alternate to serve on the Board in the absence of the Delegate; the alternate may exercise all the
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rights and privileges of the Delegate, including the right to be counted in constituting a quorum, to
participate in the proceedings of the Board, and to vote upon any and all matters. No alternate
may have more than one vote at any meeting of the Board, and any Member’s designation of an
alternate shall be delivered in writing (which may be by electronic mail) to the Authority and shall
be effective until such alternate is replaced by his or her governing body or is no longer a
Supervisor, unless otherwise specified in such appointment. Any vacancy shall be filled by the
governing body of the Member in the same manner provided in this paragraph c..
d. Any person who is not a member of the governing body of a Member and who
attends a meeting on behalf of such Member may not vote or be counted toward a quorum but
may, at the discretion of the Chair, participate in open meetings he or she attends.
e. Each Associate Member may designate a non-voting representative to the Board
who may not be counted toward a quorum but who may attend open meetings, propose agenda
items and otherwise participate in Board Meetings.
f. Delegates shall not receive compensation for serving as Delegates, but may claim
and receive reimbursement for expenses actually incurred in connection with such service
pursuant to rules approved by the Board and subject to the availability of funds.
g. The Board shall have the power, by resolution, to the extent permitted by the Act
or any other applicable law, to exercise any powers of the Authority and to delegate any of its
functions to the Executive Committee or one or more Delegates, officers or agents of the
Authority, and to cause any authorized Delegate, officer or agent to take any actions and execute
any documents for and in the name and on behalf of the Board or the Authority.
h. The Board may establish such committees as it deems necessary for any lawful
purpose; such committees are advisory only and may not act or purport to act on behalf of the
Board or the Authority.
i. The Board shall develop, or cause to be developed, and review, modify as
necessary, and adopt each Program.
8. Meetings of the Board
a. The Board shall meet at least once annually, but may meet more frequently upon
call of any officer or as provided by resolution of the Board.
b. Meetings of the Board shall be called, noticed, held and conducted pursuant to the
provisions of the Ralph M. Brown Act, Chapter 9 (commencing with Section 54950) of Part I of
Division 2 of Title 5 of the Government Code of the State of California.
c. The Secretary of the Authority shall cause minutes of all meetings of the Board to
be taken and distributed to each Member as soon as possible after each meeting.
d. The lesser of twelve (12) Delegates or a majority of the number of current
Delegates shall constitute a quorum for transacting business at any meeting of the Board, except
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that less than a quorum may act to adjourn a meeting. Each Delegate shall have one vote.
e. Meetings may be held at any location designated in notice properly given for a
meeting and may be conducted by telephonic or similar means in any manner otherwise allowed
by law.
9. Officers; Duties; Official Bonds
a. The Board shall elect a chair and vice chair from among the Delegates at the
Board’s annual meeting who shall serve a term of one (1) year or until their respective successor is
elected. The chair shall conduct the meetings of the Board and perform such other duties as may
be specified by resolution of the Board. The vice chair shall perform such duties in the absence or
in the event of the unavailability of the chair.
b. The Board shall contract annually with RCRC to administer the Agreement and to
provide administrative services to the Authority, and the President and Chief Executive Officer of
RCRC shall serve ex officio as Executive Director, Secretary, Treasurer, and Auditor of the
Authority. As chief executive of the Authority, the Executive Director is authorized to execute
contracts and other obligations of the Authority, unless prior Board approval is required by a third
party, by law or by Board specification, and to perform other duties specified by the Board. The
Executive Director may appoint such other officers as may be required for the orderly conduct of
the Authority’s business and affairs who shall serve at the pleasure of the Executive Director.
Subject to the applicable provisions of any indenture or resolution providing for a trustee or other
fiscal agent, the Executive Director, as Treasurer, is designated as the custodian of the Authority’s
funds, from whatever source, and, as such, shall have the powers, duties and responsibilities
specified in Section 6505.5 of the Act. The Executive Director, as Auditor, shall have the powers,
duties and responsibilities specified in Section 6505.5 of the Act.
c. The Legislative Advocate for the Authority shall be the Rural County
Representatives of California.
d. The Treasurer and Auditor are public officers who have charge of, handle, or have
access to all property of the Authority, and a bond for such officer in the amount of at least one
hundred thousand dollars ($100,000.00) shall be obtained at the expense of the Authority and
filed with the Executive Director. Such bond may secure the faithful performance of such
officer’s duties with respect to another public office if such bond in at least the same amount
specifically mentions the office of the Authority as required herein. The Treasurer and Auditor
shall cause periodic independent audits to be made of the Authority’s books by a certified public
accountant, or public accountant, in compliance with Section 6505 of the Act.
e. The business of the Authority shall be conducted under the supervision of the
Executive Director by RCRC personnel.
10. Executive Committee of the Authority
a. Composition
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The Authority shall appoint nine (9) members of its Board to serve on an Executive
Committee.
b. Powers and Limitations
The Executive Committee shall act in an advisory capacity and make
recommendations to the Authority Board. Duties will include, but not be limited to, review of the
quarterly and annual budgets, service as the Audit Committee for the Authority, periodically
review this Agreement; and complete any other tasks as may be assigned by the Board. The
Executive Committee shall be subject to all limitations imposed by this Agreement, other
applicable law, and resolutions of the Board.
c. Quorum
A majority of the Executive Committee shall constitute a quorum for transacting
business of the Executive Committee.
11. Disposition of Assets
Upon termination of this Agreement, all remaining assets and liabilities of the Authority
shall be distributed to the respective Members in such manner as shall be determined by the
Board and in accordance with the law.
12. Agreement Not Exclusive; Operation in Jurisdiction of Member
This Agreement shall not be exclusive, and each Member expressly reserves its rights to
carry out other public capital improvements and programs as provided for by law and to issue
other obligations for those purposes. This Agreement shall not be deemed to amend or alter the
terms of other agreements among the Members or Associate Members.
13. Conflict of Interest Code
The Authority shall by resolution adopt a Conflict of Interest Code as required by law.
14. Contributions and Advances
Contributions or advances of public funds and of personnel, equipment or property may
be made to the Authority by any Member, Associate Member or any other public agency to
further the purpose of this Agreement. Payment of public funds may be made to defray the cost of
any contribution. Any advance may be made subject to repayment, and in that case shall be repaid
in the manner agreed upon by the advancing Member, Associate Member or other public agency
and the Authority at the time of making the advance.
15. Fiscal Year; Accounts; Reports; Annual Budget; Administrative Expenses
a. The fiscal year of the Authority shall be the period from January 1 of each year to
and including the following December 31, except for any partial fiscal year resulting from a change
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in accounting based on a different fiscal year previously.
b. Prior to the beginning of each fiscal year, the Board shall adopt a budget for the
succeeding fiscal year.
c. The Authority shall establish and maintain such funds and accounts as may be
required by generally accepted accounting principles. The books and records of the Authority are
public records and shall be open to inspection at all reasonable times by each Member and its
representatives.
d. The Auditor shall either make, or contract with a certified public accountant or
public accountant to make, an annual audit of the accounts and records of the Authority. The
minimum requirements of the audit shall be those prescribed by the State Controller for special
districts under Section 26909 of the Government Code of the State of California, and shall
conform to generally accepted auditing standards. When an audit of accounts and records is made
by a certified public accountant or public accountant, a report thereof shall be filed as a public
record with each Member (and also with the auditor of Sacramento County as the county in which
the Authority’s office is located) within 12 months after the end of the fiscal year.
e. In any year in which the annual budget of the Authority does not exceed five
thousand dollars ($5,000.00), the Board may, upon unanimous approval of the Board, replace the
annual audit with an ensuing one-year period, but in no event for a period longer than two fiscal
years.
16. Duties of Members or Associate Members; Breach
If any Member or Associate Member shall default in performing any covenant contained
herein, such default shall not excuse that Member or Associate Member from fulfilling its other
obligations hereunder, and such defaulting Member or Associate Member shall remain liable for
the performance of all covenants hereof. Each Member or Associate Member hereby declares
that this Agreement is entered into for the benefit of the Authority created hereby, and each
Member or Associate Member hereby grants to the Authority the right to enforce, by whatever
lawful means the Authority deems appropriate, all of the obligations of each of the parties
hereunder. Each and all of the remedies given to the Authority hereunder or by any law now or
hereafter enacted are cumulative, and the exercise of one right or remedy shall not impair the right
of the Authority to any or all other remedies.
17. Indemnification
To the full extent permitted by law, the Board may authorize indemnification by the
Authority of any person who is or was a Board Delegate, alternate, officer, consultant, employee or
other agent of the Authority, and who was or is a party or is threatened to be made a party to a
proceeding by reason of the fact that such person is or was such a Delegate, alternate, officer,
consultant, employee or other agent of the Authority. Such indemnification may be made against
expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding, if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Authority and, in the case of a criminal
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proceeding, had no reasonable cause to believe his or her conduct was unlawful and, in the case of
an action by or in the right of the Authority, acted with such care, including reasonable inquiry, as
an ordinarily prudent person in a like position would use under similar circumstances.
18. Immunities
All of the privileges and immunities from liabilities, exemptions from law, ordinances and
rules, all pension, relief, disability, workers' compensation and other benefits which apply to the
activity of officers, agents or employees of any of the Members or Associate Members when
performing their respective functions, shall apply to them to the same degree and extent while
engaged as Delegates or otherwise as an officer, agent or other representative of the Authority or
while engaged in the performance of any of their functions or duties under the provisions of this
Agreement.
19. Amendment
This Agreement may be amended by the adoption of the amendment by the governing
bodies of a majority of the Members. The amendment shall become effective on the first day of
the month following the last required member agency approval. An amendment may be initiated
by the Board, upon approval by a majority of the Board. Any proposed amendment, including the
text of the proposed change, shall be given by the Board to each Member’s Delegate for
presentation and action by each Member's board within 60 days, which time may be extended by
the Board.
The list of Members, Attachment 1, may be updated to reflect new and/or withdrawn
Members without requiring formal amendment of the Agreement by the Authority Board of
Directors.
20. Withdrawal of Member or Associate Member
If a Member withdraws as member of RCRC, its membership in the Authority shall
automatically terminate. A Member or Associate Member may withdraw from this Agreement
upon written notice to the Board; provided however, that no such withdrawal shall result in the
dissolution of the Authority as long as any Bonds or other obligations of the Authority remain
outstanding. Any such withdrawal shall become effective thirty (30) days after a resolution adopted
by the Member's governing body which authorizes withdrawal is received by the Authority.
Notwithstanding the foregoing, any termination of membership or withdrawal from the Authority
shall not operate to relieve any terminated or withdrawing Member or Associate Member from
Obligations incurred by such terminated or withdrawing Member or Associate Member prior to
the time of its termination or withdrawal.
20. Miscellaneous
a. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
b. Construction. The section headings herein are for convenience only and are not to
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be construed as modifying or governing the language in the section referred to.
c. Approvals. Wherever in this Agreement any consent or approval is required, the
same shall not be unreasonably withheld.
d. Jurisdiction; Venue. This Agreement is made in the State of California, under the
Constitution and laws of such State and is to be so construed; any action to enforce or interpret its
terms shall be brought in Sacramento County, California.
e. Integration. This Agreement is the complete and exclusive statement of the
agreement among the parties hereto, and it supersedes and merges all prior proposals,
understandings, and other agreements, whether oral, written, or implied in conduct, between and
among the parties relating to the subject matter of this Agreement.
f. Successors; Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the successors of the parties hereto. Except to the extent expressly provided herein,
no Member may assign any right or obligation hereunder without the consent of the Board.
g. Severability. Should any part, term or provision of this Agreement be decided by
the courts to be illegal or in conflict with any law of the State of California, or otherwise be
rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions
hereof shall not be affected thereby.
The parties hereto have caused this Agreement to be executed and attested by their properly
authorized officers.
AS ADOPTED BY THE MEMBERS:
Originally dated July 1, 1993
Amended and restated December 10, 1998
Amended and restated February 18, 1999
Amended and restated September 18, 2002
Amended and restated January 28, 2004
Amended and restated December 10, 2014
[SIGNATURES ON FOLLOWING PAGES]
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ATTACHMENT 1
CALIFORNIA HOME FINANCE AUTHORITY MEMBERS
As of December 10, 2014
Alpine County
Amador County
Butte County
Calaveras County
Colusa County
Del Norte County
El Dorado County
Glenn County
Humboldt County
Imperial County
Inyo County
Lake County
Lassen County
Madera County
Mariposa County
Mendocino County
Merced County
Modoc County
Mono County
Napa County
Nevada County
Placer County
Plumas County
San Benito County
Shasta County
Sierra County
Siskiyou County
Sutter County
Tehama County
Trinity County
Tuolumne County
Yolo County
Yuba County
228
SIGNATURE PAGE FOR NEW ASSOCIATE MEMBERS
NAME OF COUNTY OR CITY:
______________________________ Dated:
By:
Name:
Title:
Attest:
By __________________________________
[Clerk of the Board Supervisors or City Clerk]
229
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82671.00001\9521876.4
RESOLUTION NO. ______________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO CALIFORNIA,
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE CITY’S JURISDICTION
IN THE CALIFORNIA HOME FINANCE AUTHORITY, PROGRAM TO FINANCE
RENEWABLE ENERGY GENERATION, ENERGY AND WATER EFFICIENCY
IMPROVEMENTS AND ELECTRIC VEHICLE CHARGING INFRASTRUCTURE AND
APPROVING ASSOCIATE MEMBERSHIP IN THE JOINT EXERCISE OF POWERS
AUTHORITY RELATED THERETO
WHEREAS, the California Home Finance Authority (“Authority”) is a joint exercise of
powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government
Code of the State of California (Section 6500 and following) (the “Act”) and the Joint Power
Agreement entered into on July 1, 1993, as amended from time to time (the “Authority JPA”);
and
WHEREAS, the Authority is in the process of amending the Authority JPA to formally
change its name to the Golden State Finance Authority; and
WHEREAS, Authority has established a property-assessed clean energy (“PACE”)
Program (the “Authority PACE Program”) to provide for the financing of renewable energy
generation, energy and water efficiency improvements and electric vehicle charging
infrastructure (the “Improvements”) pursuant to Chapter 29 of the Improvement Bond Act of
1911, being Division 7 of the California Streets and Highways Code (“Chapter 29”) within
counties and cities throughout the State of California that elect to participate in such program;
and
WHEREAS, City of Cupertino (the “City”) is committed to development of renewable
energy generation and energy and water efficiency improvements, reduction of greenhouse
gases, and protection of the environment; and
WHEREAS, in Chapter 29, the Legislature has authorized cities and counties to assist
property owners in financing the cost of installing Improvements through a voluntary contractual
assessment program; and
WHEREAS, installation of such Improvements by property owners within the
jurisdictional boundaries of the counties and cities that are participating in the Authority PACE
Program would promote the purposes cited above; and
WHEREAS, the City wishes to provide innovative solutions to its property owners to
achieve energy and water efficiency, and in doing so cooperate with Authority in order to
efficiently and economically assist property owners within the City in financing such
Improvements; and
WHEREAS, Authority has established the Authority PACE Program, which is such a
voluntary contractual assessment program, as permitted by the Act, the Authority JPA, originally
made and entered into July 1, 1993, as amended to date, and the City, desires to become an
Associate Member of the JPA by execution of the JPA Agreement, a copy of which is attached
230
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82671.00001\9521876.4
as Exhibit “A” hereto, to participate in the programs of the JPA and to assist property owners
within the jurisdiction of the City in financing the cost of installing Improvements; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy and collection of assessments or any required remedial action in the case of
delinquencies in the payment of any assessments or the issuance, sale or administration of any
bonds issued in connection with the Authority PACE Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City’s incorporated
area will be benefited by the availability of the Authority PACE Program to finance the
installation of the Improvements.
2. This City Council consents to inclusion in the Authority PACE Program of all of
the properties in the jurisdictional boundaries of the City and to the Improvements, upon the
request by and voluntary agreement of owners of such properties, in compliance with the laws,
rules and regulations applicable to such program; and to the assumption of jurisdiction thereover
by Authority for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the Authority PACE Program and authorizes
Authority, upon satisfaction of the conditions imposed in this resolution, to take each and every
step required for or suitable for financing the Improvements, including the levying, collecting
and enforcement of the contractual assessments to finance the Improvements and the issuance
and enforcement of bonds to represent such contractual assessments.
4. This City Council hereby approves joining the JPA as an Associate Member and
authorizes the execution by appropriate City officials of any necessary documents to effectuate
such membership.
5. City staff is authorized and directed to coordinate with Authority staff to facilitate
operation of the Authority PACE Program within the City, and report back periodically to this
City Council on the success of such program.
6. This Resolution shall take effect immediately upon its adoption. The City Clerk
is directed to send a certified copy of this resolution to the Secretary of the Authority.
PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of
Cupertino the 7th day of February, 2017 by the following vote:
Vote Members of the City Council
AYES:
NOES:
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82671.00001\9521876.4
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor, City of
Cupertino
232
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82671.00001\9521876.4
Exhibit A
JPA Agreement
233
CALIFORNIA HOME FINANCE AUTHORITY
AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(Original date July 1, 1993 and as last amended and restated December 10, 2014)
THIS AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT
(“Agreement”) is entered into by and among the counties listed on Attachment 1 hereof and
incorporated herein by reference. All such counties are referred to herein as "Members" with the
respective powers, privileges and restrictions provided herein.
RECITALS
A.WHEREAS, the California Rural Home Mortgage Finance Authority (“CRHMFA”) was
created by a Joint Exercise of Powers Agreement dated July 1, 1993 pursuant to the Joint Exercise
of Powers Act (commencing with Article 1 of Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California (the “Act”). By Resolution 2003-02, adopted on
January 15, 2003, the name of the authority was changed to CRHMFA Homebuyers Fund. The
most recent amendment to the Joint Exercise of Powers Agreement was on January 28, 2004.
B.WHEREAS, the Members of CRHMFA Homebuyers Fund desire to update, reaffirm,
clarify and revise certain provisions of the joint powers agreement, including the renaming of the
joint powers authority, as set forth herein.
C.WHEREAS, the Members are each empowered by law to finance the construction,
acquisition, improvement and rehabilitation of real property.
D.WHEREAS, by this Agreement, the Members desire to create and establish a joint powers
authority to exercise their respective powers for the purpose of financing the construction,
acquisition, improvement and rehabilitation of real property within the jurisdiction of the Authority
as authorized by the Act.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Members
individually and collectively agree as follows:
1.Definitions
Unless the context otherwise requires, the following terms shall for purposes of this
Agreement have the meanings specified below:
"Act" means the Joint Exercise of Powers Act, commencing with Article 1 of Chapter 5 of
Division 7 of Title 1 of the Government Code of the State of California, including the Marks-Roos
Local Bond Pooling Act of 1985, as amended.
"Agreement" means this Joint Exercise of Powers Agreement, as the same now exists or as it
may from time to time be amended as provided herein.
Exhibit A
234
"Associate Member" means a county, city or other public agency which is not a voting
member of the Rural County Representatives of California, a California nonprofit corporation
(“RCRC”), with legal power and authority similar to that of the Members, admitted pursuant to
paragraph 4.d. below to associate membership herein by vote of the Board.
“Audit Committee” means a committee made up of the nine-member Executive
Committee.
"Authority" means California Home Finance Authority (“CHF”), formerly known as
CRHMFA Homebuyers Fund or California Rural Home Mortgage Finance Authority.
"Board" means the governing board of the Authority as described in Section 7 below.
"Bonds" means bonds, notes, warrants, leases, certificates of participation, installment
purchase agreements, loan agreements and other securities or obligations issued by the Authority,
or financing agreements entered into by the Authority pursuant to the Act and any other obligation
within the meaning of the term "Bonds" under the Act.
“Delegate” means the Supervisor designated by the governing board of each Member to
serve on the Board of the Authority.
“Executive Committee” means the nine-member Executive Committee of the Board
established pursuant to Section 10 hereof.
"Member" means any county which is a member of RCRC, has executed this Agreement
and has become a member of the Authority.
“Obligations” means bonds, notes, warrants, leases, certificates of participation, installment
purchase agreements, loan agreements and other securities or obligations issued by the Authority,
or financing agreements entered into by the Authority pursuant to the Act and any other financial
or legal obligation of the Authority under the Act.
“Program” or “Project” means any work, improvement, program, project or service
undertaken by the Authority.
"Rural County Representatives of California" or “RCRC” means the nonprofit entity
incorporated under that name in the State of California.
“Supervisor” means an elected County Supervisor from an RCRC member county.
2. Purpose
The purpose of the Authority is to provide financing for the acquisition, construction, ,
improvement and rehabilitation of real property in accordance with applicable provisions of law
for the benefit of residents and communities. In pursuit of this purpose, this Agreement provides
for the joint exercise of powers common to any of its Members and Associate Members as
provided herein, or otherwise authorized by the Act and other applicable laws, including assisting
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in financing as authorized herein, jointly exercised in the manner set forth herein.
3. Principal Place of Business
The principal office of the Authority shall be 1215 K Street, Suite 1650, Sacramento,
California 95814.
4. Creation of Authority; Addition of Members or Associate Members
a. The Authority is hereby created pursuant to the Act. As provided in the Act, the
Authority shall be a public entity separate and distinct from the Members or Associate Members.
b. The Authority will cause a notice of this Agreement or any amendment hereto to
be prepared and filed with the office of the Secretary of State of California in a timely fashion in
the manner set forth in Section 6503.3 of the Act.
c. A county that is a member of RCRC may petition to become a member of the
Authority by submitting to the Board a resolution or evidence of other formal action taken by its
governing body adopting this Agreement. The Board shall review the petition for membership
and shall vote to approve or disapprove the petition. If the petition is approved by a majority of
the Board, such county shall immediately become a Member of the Authority.
d. An Associate Member may be added to the Authority upon the affirmative
approval of its respective governing board and pursuant to action by the Authority Board upon
such terms and conditions, and with such rights, privileges and responsibilities, as may be
established from time to time by the Board. Such terms and conditions, and rights, privileges and
responsibilities may vary among the Associate Members. Associate Members shall be entitled to
participate in one or more programs of the Authority as determined by the Board, but shall not be
voting members of the Board. The Executive Director of the Authority shall enforce the terms
and conditions for prospective Associate Members to the Authority as provided by resolution of
the Board and as amended from time to time by the Board. Changes in the terms and conditions
for Associate Membership by the Board will not constitute an amendment of this Agreement.
5. Term and Termination of Powers
This Agreement shall become effective from the date hereof until the earlier of the time
when all Bonds and any interest thereon shall have been paid in full, or provision for such
payment shall have been made, or when the Authority shall no longer own or hold any interest in a
public capital improvement or program. The Authority shall continue to exercise the powers
herein conferred upon it until termination of this Agreement, except that if any Bonds are issued
and delivered, in no event shall the exercise of the powers herein granted be terminated until all
Bonds so issued and delivered and the interest thereon shall have been paid or provision for such
payment shall have been made and any other debt incurred with respect to any other financing
program established or administered by the Authority has been repaid in full and is no longer
outstanding.
6. Powers; Restriction upon Exercise
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a. To effectuate its purpose, the Authority shall have the power to exercise any and all
powers of the Members or of a joint powers authority under the Act and other applicable
provisions of law, subject, however, to the conditions and restrictions herein contained. Each
Member or Associate Member may also separately exercise any and all such powers. The powers
of the Authority are limited to those of a general law county.
b. The Authority may adopt, from time to time, such resolutions, guidelines, rules and
regulations for the conduct of its meetings and the activities of the Authority as it deems necessary
or desirable to accomplish its purpose.
c. The Authority shall have the power to finance the construction, acquisition,
improvement and rehabilitation of real property, including the power to purchase, with the
amounts received or to be received by it pursuant to a bond purchase agreement, bonds issued by
any of its Members or Associate Members and other local agencies at public or negotiated sale, for
the purpose set forth herein and in accordance with the Act. All or any part of such bonds so
purchased may be held by the Authority or resold to public or private purchasers at public or
negotiated sale. The Authority shall set any other terms and conditions of any purchase or sale
contemplated herein as it deems necessary or convenient and in furtherance of the Act. The
Authority may issue or cause to be issued Bonds or other indebtedness, and pledge any of its
property or revenues as security to the extent permitted by resolution of the Board under any
applicable provision of law. The Authority may issue Bonds in accordance with the Act in order
to raise funds necessary to effectuate its purpose hereunder and may enter into agreements to
secure such Bonds. The Authority may issue other forms of indebtedness authorized by the Act,
and to secure such debt, to further such purpose. The Authority may utilize other forms of capital,
including, but not limited to, the Authority’s internal resources, capital markets and other forms of
private capital investment authorized by the Act..
d. The Authority is hereby authorized to do all acts necessary for the exercise of its
powers, including, but not limited to:
(1) executing contracts,
(2) employing agents, consultants and employees,
(3) acquiring, constructing or providing for maintenance and operation of any
building, work or improvement,
(4) acquiring, holding or disposing of real or personal property wherever
located, including property subject to mortgage,
(5) incurring debts, liabilities or obligations,
(6) receiving gifts, contributions and donations of property, funds, services and
any other forms of assistance from persons, firms, corporations or
governmental entities,
(7) suing and being sued in its own name, and litigating or settling any suits or
claims,
(8) doing any and all things necessary or convenient to the exercise of its
specific powers and to accomplishing its purpose
(9) establishing and/or administering districts to finance and refinance the
acquisition, installation and improvement of energy efficiency, water
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conservation and renewable energy improvements to or on real property
and in buildings. The Authority may enter into one or more agreements,
including without limitation, participation agreements and implementation
agreements to implement such programs.
e. Subject to the applicable provisions of any indenture or resolution providing for the
investment of monies held thereunder, the Authority shall have the power to invest any of its funds
as the Board deems advisable, in the same manner and upon the same conditions as local agencies
pursuant to Section 53601 of the Government Code of the State of California.
f. All property, equipment, supplies, funds and records of the Authority shall be
owned by the Authority, except as may be provided otherwise herein or by resolution of the
Board.
g. Pursuant to the provisions of Section 6508.1 of the Act, the debts, liabilities and
obligations of the Authority shall not be debts, liabilities and obligations of the Members or
Associate Members. Any Bonds, together with any interest and premium thereon, shall not
constitute debts, liabilities or obligations of any Member. The Members or Associate Members
hereby agree that any such Bonds issued by the Authority shall not constitute general obligations of
the Authority but shall be payable solely from the moneys pledged to the repayment of principal or
interest on such Bonds under the terms of the resolution, indenture, trust, agreement or other
instrument pursuant to which such Bonds are issued. Neither the Members or Associate
Members nor the Authority shall be obligated to pay the principal of or premium, if any, or
interest on the Bonds, or other costs incidental thereto, except from the revenues and funds
pledged therefor, and neither the faith and credit nor the taxing power of the Members or
Associate Members or the Authority shall be pledged to the payment of the principal of or
premium, if any, or interest on the Bonds, nor shall the Members or Associate Members of the
Authority be obligated in any manner to make any appropriation for such payment. No covenant
or agreement contained in any Bond shall be deemed to be a covenant or agreement of any
Delegate, or any officer, agent or employee of the Authority in an individual capacity, and neither
the Board nor any officer thereof executing the Bonds or any document related thereto shall be
liable personally on any Bond or be subject to any personal liability or accountability by reason of
the issuance of any Bonds.
7. Governing Board
a. The Board shall consist of the number of Delegates equal to one representative
from each Member.
b. The governing body of each Member shall appoint one of its Supervisors to serve
as a Delegate on the Board. A Member’s appointment of its Delegate shall be delivered in writing
(which may be by electronic mail) to the Authority and shall be effective until he or she is replaced
by such governing body or no longer a Supervisor; any vacancy shall be filled by the governing
body of the Member in the same manner provided in this paragraph b..
c. The governing body of each Member of the Board shall appoint a Supervisor as an
alternate to serve on the Board in the absence of the Delegate; the alternate may exercise all the
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rights and privileges of the Delegate, including the right to be counted in constituting a quorum, to
participate in the proceedings of the Board, and to vote upon any and all matters. No alternate
may have more than one vote at any meeting of the Board, and any Member’s designation of an
alternate shall be delivered in writing (which may be by electronic mail) to the Authority and shall
be effective until such alternate is replaced by his or her governing body or is no longer a
Supervisor, unless otherwise specified in such appointment. Any vacancy shall be filled by the
governing body of the Member in the same manner provided in this paragraph c..
d. Any person who is not a member of the governing body of a Member and who
attends a meeting on behalf of such Member may not vote or be counted toward a quorum but
may, at the discretion of the Chair, participate in open meetings he or she attends.
e. Each Associate Member may designate a non-voting representative to the Board
who may not be counted toward a quorum but who may attend open meetings, propose agenda
items and otherwise participate in Board Meetings.
f. Delegates shall not receive compensation for serving as Delegates, but may claim
and receive reimbursement for expenses actually incurred in connection with such service
pursuant to rules approved by the Board and subject to the availability of funds.
g. The Board shall have the power, by resolution, to the extent permitted by the Act
or any other applicable law, to exercise any powers of the Authority and to delegate any of its
functions to the Executive Committee or one or more Delegates, officers or agents of the
Authority, and to cause any authorized Delegate, officer or agent to take any actions and execute
any documents for and in the name and on behalf of the Board or the Authority.
h. The Board may establish such committees as it deems necessary for any lawful
purpose; such committees are advisory only and may not act or purport to act on behalf of the
Board or the Authority.
i. The Board shall develop, or cause to be developed, and review, modify as
necessary, and adopt each Program.
8. Meetings of the Board
a. The Board shall meet at least once annually, but may meet more frequently upon
call of any officer or as provided by resolution of the Board.
b. Meetings of the Board shall be called, noticed, held and conducted pursuant to the
provisions of the Ralph M. Brown Act, Chapter 9 (commencing with Section 54950) of Part I of
Division 2 of Title 5 of the Government Code of the State of California.
c. The Secretary of the Authority shall cause minutes of all meetings of the Board to
be taken and distributed to each Member as soon as possible after each meeting.
d. The lesser of twelve (12) Delegates or a majority of the number of current
Delegates shall constitute a quorum for transacting business at any meeting of the Board, except
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that less than a quorum may act to adjourn a meeting. Each Delegate shall have one vote.
e. Meetings may be held at any location designated in notice properly given for a
meeting and may be conducted by telephonic or similar means in any manner otherwise allowed
by law.
9. Officers; Duties; Official Bonds
a. The Board shall elect a chair and vice chair from among the Delegates at the
Board’s annual meeting who shall serve a term of one (1) year or until their respective successor is
elected. The chair shall conduct the meetings of the Board and perform such other duties as may
be specified by resolution of the Board. The vice chair shall perform such duties in the absence or
in the event of the unavailability of the chair.
b. The Board shall contract annually with RCRC to administer the Agreement and to
provide administrative services to the Authority, and the President and Chief Executive Officer of
RCRC shall serve ex officio as Executive Director, Secretary, Treasurer, and Auditor of the
Authority. As chief executive of the Authority, the Executive Director is authorized to execute
contracts and other obligations of the Authority, unless prior Board approval is required by a third
party, by law or by Board specification, and to perform other duties specified by the Board. The
Executive Director may appoint such other officers as may be required for the orderly conduct of
the Authority’s business and affairs who shall serve at the pleasure of the Executive Director.
Subject to the applicable provisions of any indenture or resolution providing for a trustee or other
fiscal agent, the Executive Director, as Treasurer, is designated as the custodian of the Authority’s
funds, from whatever source, and, as such, shall have the powers, duties and responsibilities
specified in Section 6505.5 of the Act. The Executive Director, as Auditor, shall have the powers,
duties and responsibilities specified in Section 6505.5 of the Act.
c. The Legislative Advocate for the Authority shall be the Rural County
Representatives of California.
d. The Treasurer and Auditor are public officers who have charge of, handle, or have
access to all property of the Authority, and a bond for such officer in the amount of at least one
hundred thousand dollars ($100,000.00) shall be obtained at the expense of the Authority and
filed with the Executive Director. Such bond may secure the faithful performance of such
officer’s duties with respect to another public office if such bond in at least the same amount
specifically mentions the office of the Authority as required herein. The Treasurer and Auditor
shall cause periodic independent audits to be made of the Authority’s books by a certified public
accountant, or public accountant, in compliance with Section 6505 of the Act.
e. The business of the Authority shall be conducted under the supervision of the
Executive Director by RCRC personnel.
10. Executive Committee of the Authority
a. Composition
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The Authority shall appoint nine (9) members of its Board to serve on an Executive
Committee.
b. Powers and Limitations
The Executive Committee shall act in an advisory capacity and make
recommendations to the Authority Board. Duties will include, but not be limited to, review of the
quarterly and annual budgets, service as the Audit Committee for the Authority, periodically
review this Agreement; and complete any other tasks as may be assigned by the Board. The
Executive Committee shall be subject to all limitations imposed by this Agreement, other
applicable law, and resolutions of the Board.
c. Quorum
A majority of the Executive Committee shall constitute a quorum for transacting
business of the Executive Committee.
11. Disposition of Assets
Upon termination of this Agreement, all remaining assets and liabilities of the Authority
shall be distributed to the respective Members in such manner as shall be determined by the
Board and in accordance with the law.
12. Agreement Not Exclusive; Operation in Jurisdiction of Member
This Agreement shall not be exclusive, and each Member expressly reserves its rights to
carry out other public capital improvements and programs as provided for by law and to issue
other obligations for those purposes. This Agreement shall not be deemed to amend or alter the
terms of other agreements among the Members or Associate Members.
13. Conflict of Interest Code
The Authority shall by resolution adopt a Conflict of Interest Code as required by law.
14. Contributions and Advances
Contributions or advances of public funds and of personnel, equipment or property may
be made to the Authority by any Member, Associate Member or any other public agency to
further the purpose of this Agreement. Payment of public funds may be made to defray the cost of
any contribution. Any advance may be made subject to repayment, and in that case shall be repaid
in the manner agreed upon by the advancing Member, Associate Member or other public agency
and the Authority at the time of making the advance.
15. Fiscal Year; Accounts; Reports; Annual Budget; Administrative Expenses
a. The fiscal year of the Authority shall be the period from January 1 of each year to
and including the following December 31, except for any partial fiscal year resulting from a change
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in accounting based on a different fiscal year previously.
b. Prior to the beginning of each fiscal year, the Board shall adopt a budget for the
succeeding fiscal year.
c. The Authority shall establish and maintain such funds and accounts as may be
required by generally accepted accounting principles. The books and records of the Authority are
public records and shall be open to inspection at all reasonable times by each Member and its
representatives.
d. The Auditor shall either make, or contract with a certified public accountant or
public accountant to make, an annual audit of the accounts and records of the Authority. The
minimum requirements of the audit shall be those prescribed by the State Controller for special
districts under Section 26909 of the Government Code of the State of California, and shall
conform to generally accepted auditing standards. When an audit of accounts and records is made
by a certified public accountant or public accountant, a report thereof shall be filed as a public
record with each Member (and also with the auditor of Sacramento County as the county in which
the Authority’s office is located) within 12 months after the end of the fiscal year.
e. In any year in which the annual budget of the Authority does not exceed five
thousand dollars ($5,000.00), the Board may, upon unanimous approval of the Board, replace the
annual audit with an ensuing one-year period, but in no event for a period longer than two fiscal
years.
16. Duties of Members or Associate Members; Breach
If any Member or Associate Member shall default in performing any covenant contained
herein, such default shall not excuse that Member or Associate Member from fulfilling its other
obligations hereunder, and such defaulting Member or Associate Member shall remain liable for
the performance of all covenants hereof. Each Member or Associate Member hereby declares
that this Agreement is entered into for the benefit of the Authority created hereby, and each
Member or Associate Member hereby grants to the Authority the right to enforce, by whatever
lawful means the Authority deems appropriate, all of the obligations of each of the parties
hereunder. Each and all of the remedies given to the Authority hereunder or by any law now or
hereafter enacted are cumulative, and the exercise of one right or remedy shall not impair the right
of the Authority to any or all other remedies.
17. Indemnification
To the full extent permitted by law, the Board may authorize indemnification by the
Authority of any person who is or was a Board Delegate, alternate, officer, consultant, employee or
other agent of the Authority, and who was or is a party or is threatened to be made a party to a
proceeding by reason of the fact that such person is or was such a Delegate, alternate, officer,
consultant, employee or other agent of the Authority. Such indemnification may be made against
expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding, if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Authority and, in the case of a criminal
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proceeding, had no reasonable cause to believe his or her conduct was unlawful and, in the case of
an action by or in the right of the Authority, acted with such care, including reasonable inquiry, as
an ordinarily prudent person in a like position would use under similar circumstances.
18. Immunities
All of the privileges and immunities from liabilities, exemptions from law, ordinances and
rules, all pension, relief, disability, workers' compensation and other benefits which apply to the
activity of officers, agents or employees of any of the Members or Associate Members when
performing their respective functions, shall apply to them to the same degree and extent while
engaged as Delegates or otherwise as an officer, agent or other representative of the Authority or
while engaged in the performance of any of their functions or duties under the provisions of this
Agreement.
19. Amendment
This Agreement may be amended by the adoption of the amendment by the governing
bodies of a majority of the Members. The amendment shall become effective on the first day of
the month following the last required member agency approval. An amendment may be initiated
by the Board, upon approval by a majority of the Board. Any proposed amendment, including the
text of the proposed change, shall be given by the Board to each Member’s Delegate for
presentation and action by each Member's board within 60 days, which time may be extended by
the Board.
The list of Members, Attachment 1, may be updated to reflect new and/or withdrawn
Members without requiring formal amendment of the Agreement by the Authority Board of
Directors.
20. Withdrawal of Member or Associate Member
If a Member withdraws as member of RCRC, its membership in the Authority shall
automatically terminate. A Member or Associate Member may withdraw from this Agreement
upon written notice to the Board; provided however, that no such withdrawal shall result in the
dissolution of the Authority as long as any Bonds or other obligations of the Authority remain
outstanding. Any such withdrawal shall become effective thirty (30) days after a resolution adopted
by the Member's governing body which authorizes withdrawal is received by the Authority.
Notwithstanding the foregoing, any termination of membership or withdrawal from the Authority
shall not operate to relieve any terminated or withdrawing Member or Associate Member from
Obligations incurred by such terminated or withdrawing Member or Associate Member prior to
the time of its termination or withdrawal.
20. Miscellaneous
a. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
b. Construction. The section headings herein are for convenience only and are not to
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be construed as modifying or governing the language in the section referred to.
c. Approvals. Wherever in this Agreement any consent or approval is required, the
same shall not be unreasonably withheld.
d. Jurisdiction; Venue. This Agreement is made in the State of California, under the
Constitution and laws of such State and is to be so construed; any action to enforce or interpret its
terms shall be brought in Sacramento County, California.
e. Integration. This Agreement is the complete and exclusive statement of the
agreement among the parties hereto, and it supersedes and merges all prior proposals,
understandings, and other agreements, whether oral, written, or implied in conduct, between and
among the parties relating to the subject matter of this Agreement.
f. Successors; Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the successors of the parties hereto. Except to the extent expressly provided herein,
no Member may assign any right or obligation hereunder without the consent of the Board.
g. Severability. Should any part, term or provision of this Agreement be decided by
the courts to be illegal or in conflict with any law of the State of California, or otherwise be
rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions
hereof shall not be affected thereby.
The parties hereto have caused this Agreement to be executed and attested by their properly
authorized officers.
AS ADOPTED BY THE MEMBERS:
Originally dated July 1, 1993
Amended and restated December 10, 1998
Amended and restated February 18, 1999
Amended and restated September 18, 2002
Amended and restated January 28, 2004
Amended and restated December 10, 2014
[SIGNATURES ON FOLLOWING PAGES]
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ATTACHMENT 1
CALIFORNIA HOME FINANCE AUTHORITY MEMBERS
As of December 10, 2014
Alpine County
Amador County
Butte County
Calaveras County
Colusa County
Del Norte County
El Dorado County
Glenn County
Humboldt County
Imperial County
Inyo County
Lake County
Lassen County
Madera County
Mariposa County
Mendocino County
Merced County
Modoc County
Mono County
Napa County
Nevada County
Placer County
Plumas County
San Benito County
Shasta County
Sierra County
Siskiyou County
Sutter County
Tehama County
Trinity County
Tuolumne County
Yolo County
Yuba County
245
SIGNATURE PAGE FOR NEW ASSOCIATE MEMBERS
NAME OF COUNTY OR CITY:
______________________________ Dated:
By:
Name:
Title:
Attest:
By __________________________________
[Clerk of the Board Supervisors or City Clerk]
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RESOLUTION NO. ______________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO, CALIFORNIA,
CONSENTING TO INCLUSION OF PROPERTIES WITHIN THE CITY’S JURISDICTION
IN THE CALIFORNIA HERO PROGRAM TO FINANCE DISTRIBUTED GENERATION
RENEWABLE ENERGY SOURCES, ENERGY AND WATER EFFICIENCY
IMPROVEMENTS AND ELECTRIC VEHICLE CHARGING INFRASTRUCTURE AND
APPROVING THE AMENDMENT TO A CERTAIN JOINT POWERS AGREEMENT
RELATED THERETO
WHEREAS, the Western Riverside Council of Governments (“Authority”) is a joint
exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the
Government Code of the State of California (Section 6500 and following) (the “Act”) and
the Joint Power Agreement entered into on April 1, 1991, as amended from time to time
(the “Authority JPA”); and
WHEREAS, Authority has established the California HERO Program to provide for
the financing of renewable energy distributed generation sources, energy and water
efficiency improvements and electric vehicle charging infrastructure (the “Improvements”)
pursuant to Chapter 29 of the Improvement Bond Act of 1911, being Division 7 of the
California Streets and Highways Code (“Chapter 29”) within counties and cities
throughout the State of California that elect to participate in such program; and
WHEREAS, City of Cupertino (the “City”) is committed to development of
renewable energy sources and energy efficiency improvements, reduction of greenhouse
gases, protection of our environment, and reversal of climate change; and
WHEREAS, in Chapter 29, the Legislature has authorized cities and counties to
assist property owners in financing the cost of installing Improvements through a
voluntary contractual assessment program; and
WHEREAS, installation of such Improvements by property owners within the
jurisdictional boundaries of the counties and cities that are participating in the California
HERO Program would promote the purposes cited above; and
WHEREAS, the City wishes to provide innovative solutions to its property owners
to achieve energy and water efficiency and independence, and in doing so cooperate with
Authority in order to efficiently and economically assist property owners the City in
financing such Improvements; and
WHEREAS, Authority has established the California HERO Program, which is
such a voluntary contractual assessment program, as permitted by the Act, the Authority
JPA, originally made and entered into April 1, 1991, as amended to date, and the
Amendment to Joint Powers Agreement Adding the City of Cupertino as an Associate
Member of the Western Riverside Council of Governments to Permit the Provision of
Property Assessed Clean Energy (PACE) Program Services within the City (the “JPA
Amendment”), by and between Authority and the City, a copy of which is attached as
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A - 2
Exhibit “A” hereto, to assist property owners within the jurisdiction of the City in financing
the cost of installing Improvements; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy and collection of assessments or any required remedial action in
the case of delinquencies in the payment of any assessments or the issuance, sale or
administration of any bonds issued in connection with the California HERO Program.
NOW, THEREFORE, BE IT RESOLVED THAT:
1. This City Council finds and declares that properties in the City’s
incorporated area will be benefited by the availability of the California HERO Program to
finance the installation of the Improvements.
2. This City Council consents to inclusion in the California HERO Program of
all of the properties in the jurisdictional boundaries of the City and to the Improvements,
upon the request by and voluntary agreement of owners of such properties, in compliance
with the laws, rules and regulations applicable to such program; and to the assumption of
jurisdiction thereover by Authority for the purposes thereof.
3. The consent of this City Council constitutes assent to the assumption of
jurisdiction by Authority for all purposes of the California HERO Program and authorizes
Authority, upon satisfaction of the conditions imposed in this resolution, to take each and
every step required for or suitable for financing the Improvements, including the levying,
collecting and enforcement of the contractual assessments to finance the Improvements
and the issuance and enforcement of bonds to represent such contractual assessments.
4. This City Council hereby approves the JPA Amendment and authorizes the
execution thereof by appropriate City officials.
5. City staff is authorized and directed to coordinate with Authority staff to
facilitate operation of the California HERO Program within the City, and report back
periodically to this City Council on the success of such program.
6. This Resolution shall take effect immediately upon its adoption. The City
Clerk is directed to send a certified copy of this resolution to the Secretary of the Authority
Executive Committee.
PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of
Cupertino the 7th day of February, 2017 by the following vote:
Vote Members of the City Council
AYES:
NOES:
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ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor, City of
Cupertino
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EXHIBIT A
AMENDMENT TO THE JOINT POWERS AGREEMENT
ADDING CITY OF CUPERTINO AS
AS AN ASSOCIATE MEMBER OF THE
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
TO PERMIT THE PROVISION OF PROPERTY ASSESSED CLEAN
ENERGY (PACE) PROGRAM SERVICES WITHIN SUCH CITY
This Amendment to the Joint Powers Agreement (“JPA Amendment”) is made and
entered into on the ___day of February 7, 2017, by City of Cupertino (“City”) and the
Western Riverside Council of Governments (“Authority”) (collectively the “Parties”).
RECITALS
WHEREAS, Authority is a joint exercise of powers authority established pursuant to
Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section
6500 and following) (the “Joint Exercise of Powers Act”) and the Joint Power Agre ement
entered into on April 1, 1991, as amended from time to time (the “Authority JPA”); and
WHEREAS, as of October 1, 2012, Authority had 18 member entities (the “Regular
Members”).
WHEREAS, Chapter 29 of the Improvement Act of 1911, being Division 7 of the California
Streets and Highways Code (“Chapter 29”) authorizes cities, counties, and cities and
counties to establish voluntary contractual assessment programs, commonly referred to
as a Property Assessed Clean Energy (“PACE”) program, to fund certain r enewable
energy sources, energy and water efficiency improvements, and electric vehicle charging
infrastructure (the “Improvements”) that are permanently fixed to residential, commercial,
industrial, agricultural or other real property; and
WHEREAS, Authority has established a PACE program designated as the “California
HERO Program” pursuant to Chapter 29 which authorizes the implementation of such
PACE financing program for cities and counties throughout the state; and
WHEREAS, City desires to allow owners of property within its jurisdiction to participate in
the California HERO Program and to allow Authority under Chapter 29, as it is now
enacted or may be amended hereafter, to finance Improvements to be installed on such
properties; and
WHEREAS, this JPA Amendment will permit City to become an Associate Member of
Authority and to participate in California HERO Program for the purpose of facilitating the
implementation of such program within the jurisdiction of City; and
WHEREAS, pursuant to the Joint Exercise of Powers Act, the Parties are approving this
JPA Agreement to allow for the provision of PACE services through the California HERO
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Program, including the operation of such PACE financing program, within the
incorporated territory of City; and
WHEREAS, the JPA Amendment sets forth the rights, obligations and duties of City and
Authority with respect to the implementation of the California HERO Program within the
incorporated territory of City.
MUTUAL UNDERSTANDINGS
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
hereinafter stated, the Parties hereto agree as follows:
A. JPA Amendment.
1. The Authority JPA. City agrees to the terms and conditions of the Authority
JPA, attached.
2. Associate Membership. By adoption of this JPA Amendment, City shall
become an Associate Member of Authority on the terms and conditions set forth herein
and the Authority JPA and consistent with the requirements of the Joint Exercise of
Powers Act. The rights and obligations of City as an Associate Member are limited solely
to those terms and conditions expressly set forth in this JPA Amendment for the purposes
of implementing the California HERO Program within the incorporated territory of City.
Except as expressly provided for by the this JPA Amendment, City shall not have any
rights otherwise granted to Authority’s Regular Members by the Authority JPA, including
but not limited to the right to vote on matters before the Executive Committee or the
General Assembly, the right to amend or vote on amendments to the Authority JPA, and
the right to sit on committees or boards established under the Authority JPA or by action
of the Executive Committee or the General Assembly, including, without limitation, the
General Assembly and the Executive Committee. City shall not be considered a member
for purposes of Section 9.1 of the Authority JPA.
3. Rights of Authority. This JPA Amendment shall not be interpreted as
limiting or restricting the rights of Authority under the Authority JPA. Nothing in this JPA
Amendment is intended to alter or modify Authority Transportation Uniform Mitigation Fee
(TUMF) Program, the PACE Program administered by Authority within the jurisdictions of
its Regular Members, or any other programs administered now or in the future by
Authority, all as currently structured or subsequently amended.
B. Implementation of California HERO Program within City Jurisdiction.
1. Boundaries of the California HERO Program within City Jurisdiction. The
boundaries within which contractual assessments may be entered into under the
California HERO Program (the “Program Boundaries”) shall include the entire
incorporated territory of City.
2. Determination of Eligible Improvements. Authority shall determine the
types of distributed generation renewable energy sources, energy efficiency or water
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conservation improvements, electric vehicle charging infrastructure or such other
improvements as may be authorized pursuant to Chapter 29 (the “Eligible Improvements”)
that will be eligible to be financed under the California HERO Program.
3. Implementation of California HERO Program Within the Program
Boundaries. Authority will undertake such proceedings pursuant to Chapter 29 as shall
be legally necessary to enable Authority to make contractual financing of Eligible
Improvements available to eligible property owners within the Program Boundaries.
4. Financing the Installation of Eligible Improvements. Authority shall
implement its plan for the financing of the purchase and installation of the Eligible
Improvements under the California HERO Program within the Program Boundaries.
5. Ongoing Administration. Authority shall be responsible for the ongoing
administration of the California HERO Program, including but not limited to producing
education plans to raise public awareness of the California HERO Program, soliciting,
reviewing and approving applications from residential and commercial property owners
participating in the California HERO Program, establishing contracts for residential,
commercial and other property owners participating in such program, levying and
collecting assessments due under the California HERO Program, taking any required
remedial action in the case of delinquencies in such assessment payments, adopting and
implementing any rules or regulations for the California HERO Program, and providing
reports as required by Chapter 29.
City will not be responsible for the conduct of any proceedings required to be taken under
Chapter 29; the levy or collection of assessments or any required remedial action in the
case of delinquencies in such assessment payments; or the issuance, sale or
administration of any bonds issued in connection with the California HERO Program.
6. Phased Implementation. The Parties recognize and agree that
implementation of the California HERO Program as a whole can and may be phased as
additional other cities and counties execute similar agreements. City entering into this
JPA Amendment will obtain the benefits of and incur the obligations imposed by this JPA
Amendment in its jurisdictional area, irrespective of whether cities or counties enter into
similar agreements.
C. Miscellaneous Provisions.
1. Withdrawal. Authority may withdraw from this JPA Amendment upon six (6)
months written notice to the other party; provided, however, there is no outstanding
indebtedness of Authority within City. The provisions of Section 6.2 of the Authority JPA
shall not apply to City under this JPA Amendment. Notwithstanding the foregoing, City
may withdraw, either temporarily or permanently, from its participation in the California
HERO Program or either the residential or commercial component of the California HERO
Program upon thirty (30) written notice to WRCOG without liability to the Authority or any
affiliated entity. City withdrawal from such participation shall not affect the validity of any
voluntary assessment contracts (a) entered prior to the date of such withdrawal or (b)
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entered into after the date of such withdrawal so long as the applications for such
voluntary assessment contracts were submitted to and approved by WRCOG prior to the
date of City’s notice of withdrawal.
2. Mutual Indemnification and Liability. Authority and City shall mutually
defend, indemnify and hold the other party and its directors, officials, officers, employees
and agents free and harmless from any and all claims, demands, causes of action, costs,
expenses, liabilities, losses, damages or injuries of any kind, in law or equity, to property
or persons, including wrongful death, to the extent arising out of the willful misconduct or
negligent acts, errors or omissions of the indemnifying party or its directors, officials,
officers, employees and agents in connection with the California HERO Program
administered under this JPA Amendment, including without limitation the payment of
expert witness fees and attorneys fees and other related costs and expenses, but
excluding payment of consequential damages. Without limiting the foregoing, Section 5.2
of the Authority JPA shall not apply to this JPA Amendment. In no event shall any of
Authority’s Regular Members or their officials, officers or employees be held directly liable
for any damages or liability resulting out of this JPA Amendment.
3. Environmental Review. Authority shall be the lead agency under the
California Environmental Quality Act for any environmental review that may required in
implementing or administering the California HERO Program under this JPA Amendment.
4. Cooperative Effort. City shall cooperate with Authority by providing
information and other assistance in order for Authority to meet its obligations hereunder.
City recognizes that one of its responsibilities related to the California HERO Program will
include any permitting or inspection requirements as established by City.
5. Notice. Any and all communications and/or notices in connection with this
JPA Amendment shall be either hand-delivered or sent by United States first class mail,
postage prepaid, and addressed as follows:
Authority:
Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501-3609
Att: Executive Director
City:
City of Cupertino
10300 Torre Ave
Cupertino, CA 95014
Att: Misty Mersich, Sustainability Manager
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6. Entire Agreement. This JPA Amendment, together with the Authority JPA,
constitutes the entire agreement among the Parties pertaining to the subject matte r
hereof. This JPA Amendment supersedes any and all other agreements, either oral or in
writing, among the Parties with respect to the subject matter hereof and contains all of
the covenants and agreements among them with respect to said matters, and each Party
acknowledges that no representation, inducement, promise of agreement, oral or
otherwise, has been made by the other Party or anyone acting on behalf of the other
Party that is not embodied herein.
7. Successors and Assigns. This JPA Amendment and each of its covenants
and conditions shall be binding on and shall inure to the benefit of the Parties and their
respective successors and assigns. A Party may only assign or transfer its rights and
obligations under this JPA Amendment with prior written approval of the other Party,
which approval shall not be unreasonably withheld.
8. Attorney’s Fees. If any action at law or equity, including any action for
declaratory relief is brought to enforce or interpret the provisions of this Agreement, each
Party to the litigation shall bear its own attorney’s fees and costs.
9. Governing Law. This JPA Amendment shall be governed by and construed
in accordance with the laws of the State of California, as applicable.
10. No Third Party Beneficiaries. This JPA Amendment shall not create any
right or interest in the public, or any member thereof, as a third party beneficiary hereof,
nor shall it authorize anyone not a Party to this JPA Amendment to maintain a suit for
personal injuries or property damages under the provisions of this JPA Amendment. The
duties, obligations, and responsibilities of the Parties to this JPA Amendment with respect
to third party beneficiaries shall remain as imposed under existing state and federal law.
11. Severability. In the event one or more of the provisions contained in this
JPA Amendment is held invalid, illegal or unenforceable by any court of competent
jurisdiction, such portion shall be deemed severed from this JPA Amendment and the
remaining parts of this JPA Amendment shall remain in full force and effect as though
such invalid, illegal, or unenforceable portion had never been a part of this JPA
Amendment.
12. Headings. The paragraph headings used in this JPA Amendment are for
the convenience of the Parties and are not intended to be used as an aid to interpretation.
13. Amendment. This JPA Amendment may be modified or amended by the
Parties at any time. Such modifications or amendments must be mutually agreed upon
and executed in writing by both Parties. Verbal modifications or amendments to this JPA
Amendment shall be of no effect.
14. Effective Date. This JPA Amendment shall become effective upon the
execution thereof by the Parties hereto.
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IN WITNESS WHEREOF, the Parties hereto have caused this JPA Amendment to be
executed and attested by their officers thereunto duly authorized as of the date first above
written.
[SIGNATURES ON FOLLOWING PAGES]
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS By: Date: Name: Title: CITY OF CUPERTINO By: Date: Name: Title:
20323.00016\8035530.3
255
RESOLUTION NO. ______
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE TERRITORY
OF THE CITY IN THE CSCDA OPEN PACE PROGRAMS; AUTHORIZING THE
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO
ACCEPT APPLICATIONS FROM PROPERTY OWNERS, CONDUCT
CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY CONTRACTUAL
ASSESSMENTS WITHIN THE TERRITORY OF THE CITY; AND AUTHORIZING
RELATED ACTIONS
WHEREAS, the California Statewide Communities Development Authority (the
“Authority”) is a joint exercise of powers authority, the members of which include numerous cities
and counties in the State of California, including the City of Cupertino (the “City”); and
WHEREAS, the Authority is implementing Property Assessed Clean Energy (PACE)
programs, which it has designated CSCDA Open PACE, consisting of CSCDA Open PACE
programs each administered by a separate program administrator (collectively with any successors,
assigns, replacements or additions, the “Programs”), to allow the financing or refinancing of
renewable energy, energy efficiency, water efficiency and seismic strengthening improvements,
electric vehicle charging infrastructure and such other improvements, infrastructure or other work
as may be authorized by law from time to time (collectively, the “Improvements”) through the
levy of contractual assessments pursuant to Chapter 29 of Division 7 of the Streets & Highways
Code (“Chapter 29”) within counties and cities throughout the State of California that consent to
the inclusion of properties within their respective territories in the Programs and the issuance of
bonds from time to time; and
WHEREAS, the program administrators currently active in administering Programs are
the AllianceNRG Program (CounterPointe Energy Solutions (CA) LLC), PACE Funding LLC,
CaliforniaFirst (Renew Financial Group LLC), CleanFund Commercial PACE Capital and Spruce
Finance and the Authority will notify the City in advance of any additions or changes; and
WHEREAS, Chapter 29 provides that assessments may be levied under its provisions only
with the free and willing consent of the owner or owners of each lot or parcel on which an
assessment is levied at the time the assessment is levied; and
WHEREAS, the City desires to allow the owners of property (“Participating Property
Owners”) within its territory to participate in the Programs and to allow the Authority to conduct
assessment proceedings under Chapter 29 within its territory and to issue bonds to finance or
refinance Improvements; and
WHEREAS, the territory within which assessments may be levied for the Programs shall
include all of the territory within the City’s official boundaries; and
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WHEREAS, the Authority will conduct all assessment proceedings under Chapter 29 for
the Programs and issue any bonds issued in connection with the Programs; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings; the levy of assessments; any required remedial action in the case of delinquencies in
such assessment payments; or the issuance, sale or administration of any bonds issued in
connection with the Programs;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino
as follows:
Section 1. This City Council hereby finds and declares that properties in the territory
of the City will benefit from the availability of the Programs within the territory of the City and,
pursuant thereto, the conduct of special assessment proceedings by the Authority pursuant to
Chapter 29 and the issuance of bonds to finance or refinance Improvements.
Section 2. In connection with the Programs, the City hereby consents to the conduct
of special assessment proceedings by the Authority pursuant to Chapter 29 on any property within
the territory of the City and the issuance of bonds to finance or refinance Improvements; provided,
that
(1) The Participating Property Owners, who shall be the legal owners of such
property, execute a contract pursuant to Chapter 29 and comply with other applicable
provisions of California law in order to accomplish the valid levy of assessments; and
(2) The City will not be responsible for the conduct of any assessment
proceedings; the levy of assessments; any required remedial action in the case of
delinquencies in such assessment payments; or the issuance, sale or administration of any
bonds issued in connection with the Programs.
Section 3. The appropriate officials and staff of the City are hereby authorized and
directed to make applications for the Programs available to all property owners who wish to
finance or refinance Improvements; provided, that the Authority shall be responsible for providing
such applications and related materials at its own expense. The following staff persons, together
with any other staff persons chosen by the City Manager of the City from time to time, are hereby
designated as the contact persons for the Authority in connection with the Programs: Misty
Mersich, Sustainability Manager
Section 4. The appropriate officials and staff of the City are hereby authorized and
directed to execute and deliver such certificates, requisitions, agreements and related documents
as are reasonably required by the Authority to implement the Programs.
Section 5. The City Council hereby finds that adoption of this Resolution is not a
“project” under the California Environmental Quality Act, because the Resolution does not involve
any commitment to a specific project which may result in a potentially significant physical impact
257
on the environment, as contemplated by Title 14, California Code of Regulations, Section
15378(b)(4).
Section 6. This Resolution shall take effect once it is adopted only for a program
administrator who has entered into the collaborative services agreement with the Association of
Bay Area Governments (ABAG) and provides the City a fully executed copy of such agreement
with ABAG. The City Clerk is hereby authorized and directed to transmit a certified copy of this
resolution to the Secretary of the Authority at: Secretary of the Board, California Statewide
Communities Development Authority, 1400 K Street, Sacramento, CA 95814.
PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of Cupertino the
7th day of February, 2017 by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor, City of Cupertino
258
AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"), dated as of April 6, 2016,
("Effective Date") is by and among the Association of Bay Area Governments
(hereinafter "ABAG"), Figtree Company, Inc., (hereinafter "PACE Provider"), as an entity
administering a Property Assessed Clean Energy (PACE) financing program utilizing
either the California Assembly Bill 811 and/or California Senate Bill 555 model and any
Participating Entity, as defined in Section 1.3 below, that adopts this Agreement.
RECITALS
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (ABAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN se~ks to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with making informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
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WHEREAS, the PACE Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
upgrade industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and .to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
·adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 "Eligible improvement" is a technology, product or tool officially approved by
the PACE provider. The improvements may include distributed generation
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG territory administering a
program providing Property Assessed Clean Energy (PACE) financing.
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1.3 "Participating Entity'' is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopt this
Agreement.
1.4 "Participating Contractor" is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (Levine, 2008) ("AB 811"},
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) ("SB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 "Work" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work / Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to Californi~ Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
_ ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
have the right to do any or all of the following: (a) require PACE Provider to
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discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of Section 5, Termination; or (c) pursue any and all other remedies
available to ABAG at law or in equity.
Financing Provision Requirements.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Prov.ide training to contractors and information to property owners on
the availability of rebates (for all utility and generation types), including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that all property taxes for the assessed property are current for the
previous three years or since the current owner acquired the-property,
whichever is shorter.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position
regarding their annual or semi-annual' PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
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2.4 Financial Policies.
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE Loan Loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than. as required by law) by request of Participating Entity, electronic
access to the name, business name, and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
2.5.3 Provide upon request ~ither direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Participating Entity by request for internal evaluation purposes only (and
not for distribution to any third party, including, without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
a. Required data:
i. Assessor's Parcel Number (APN) of the property
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ii. Dollar amount financed (the amount of the assessment
and/or special tax)
iii. Listing of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
vi.
b. If available (in the aggregate):
i. Amount of rebate or" incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.5.3(a)(ii)-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports provided by a PACE Provider
pursuant to Section 2.5.3(b) (if any).
2.5.4 Provide the documents required for participation in the PACE Providers'
PACE Financing program to Participating Entity officials.
2.5.5 Provide support to Participating Entity's staff to facilitate adoption of
required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
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provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2. 7 Branding/ Marketing Requirements.
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product
ABAG will encourage ABAG members to:
2.7.7 Present with impartiality the financing products of the PACE Providers in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding Participating Contractor.
PACE Providers will:
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2.8.1 Require that contractors have the appropriate California State License
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State License Board requirements,
that contractors' bonding is in good standing
2.8.3 Require, in accordance with California State License Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $1M of commercial general
liability insurance
2.8.5 NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2,8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
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5 Termination.
5.1 Termination without Cause. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document. Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the ability to levy and collect assessments and the PACE
Provider's ability to issue bonds for assessment contracts located within the
jurisdiction of such entity which have been entered into prior to the date of
termination.
In the event of termination pursuant to this Section 5 by ABAG, ABAG may
notify all Participating Entities of said termination.
6 Hold Harmless. Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save harmless
and waive subrogation against the ABAG, and its members, elected and appointed
officials, officers and employees (lndemnitees) against any and all liability, claims, losses,
damages, or expenses, including reasonable attorneys' fees, arising from all acts or
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omissions to act of PACE Provider or its officers, agents, or employees in rendering
services under this contract; excluding, however, such liability, claims, losses, damages or
expenses resulting from an intentional act or the gross negligence of an lndemnitee.
This section shall in no event be construed to require indemnification by PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
· required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training cif PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or of any Participating Entity
and is not entitled to participate in any pension plan, worker's compensation
plan, insurance, bonus, employment protection, or similar benefits that ABAG or
the Participating Entity provides its employees.
9.3 Conflict of Interest. PACE Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
financial conflict of interest under state law or that would otherwise conflict in
any manner or degree with the performance of its services hereunder. PACE
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Provider further covenants that in the performance of this Agreement no
person having any such interests shall be employed.
9.4 Statutory Compliance. PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. All nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for in~ecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (30) days, such assurance of due performance as is adequate under
the circumstance~ of the particular case is a repudiation of this Agreement.
Acceptance of any improper delivery, conduct, or service does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
Nothing in this Article limits the parties' right to terminate this Agreement pursuant
to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
j
unless and until the other party shall have so consented; provided however, that
PACE Provider may assign this Agreement in connection with a merger or the sale of
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all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
Address
Facsimile:
Email address: ------------
Figtree Company, Inc.
9915 Mira Mesa Blvd, Suite 130
San Diego, CA 92131
Attn: Mahesh Shah, CEO
Email address: mshah@figtreefinancing.com
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
. facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.2 Construction. To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. The parties covenant and
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agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement, the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
13.3 Consent. Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
13.4 No Third Party Beneficiaries. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
13.7 Merger. This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed by both parties.
13;8 Survival ofTerms. All express representations, waivers, indemnifications,
and limitations of liability included in this Agreement will survive its
completion or termination for any reason.
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13.9 Time of Essence. Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original, constituting
one and the same instrument. The delivery by facsimile or electronic mail of an
executed copy of this Amendment shall be deemed valid as if an original
signature was delivered
Continued on next page:
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IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
Agreement as of the Effective Date.
ABAG: ----------
Name: Mahesh Shah -----
Title: E-)t~,\)-\·\ \II{, D"v-t~
Date:_!{ /_~6 ___ /_/ fo_
I I
Title: CEO ---------
Date: April 6, 2016 _____ _
APPROVED AS TO FORM FOR ABAG
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ATTACHMENT l(a)
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy asses'sments as "loans" instead of "assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal Financing Housing Authority re:
PACE programs:
Agreement For Collaborative Services for Pace Financing Marketplace-' [PACE Provider]
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• https://www.efanniemae.com/sf /guides/ssg/annltrs/pdf /2010/111006.pdf
• http://www.freddiemac.com/singlefamily/guide/bulletins/pdf/i1tr050510.pdf
• http://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Statement-on-Certain-
Energy-Retrofit-Loan-Programs.aspx
• http://www.fhfa.gov/Media/Pu blicAffairs/Pages/Statement-of-FH FA-Acting-
Director-Edward-J-DeMarco-on-PACE-Programs.aspx
• https://www.efanniemae.com/sf/guides/ssg/annltrs/pdf/2010/sel1012.pdf
• http://www.freddiemac.com/singlefamily/guide/bulletins/pdf/bll1020.pdf
Agreement For Collaborative Services for Pace Financing Marketplace -[PACE Provider]
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ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULLY REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE AP ARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACTWITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN
EVENT OF DEFAULT UNDER SUCH AGREEMENTS OR SECURITY
INSTRUMENTS. DEFAULTING UNDER AN EXISTING MORTGAGE
AGREEMENT OR SECURITY INSTRUMENT COULD HA VE SERIOUS
CONSEQUENCES TO YOU, WHICH COULD INCLUDE THE
ACCELERATION OF THE REPAYMENT OBLIGATIONS DUE UNDER SUCH
AGREEMENT OR SECURITY INSTRUMENT. IN ADDITION,
FANNIE MAE AND FREDDIE MAC, THE OWNER OF A SIGNIFICANT
PORTION OF ALL HOME MORTGAGES, STATED THAT THEY WOULD
NOT PURCHASE HOME LOANS WITH ASSESSMENTS SUCH AS THOSE
OFFERED BY THE AUTHORITY. THIS MAY MEAN THAT PROPERTY
OWNERS WHO SELL OR REFINANCE THEIR PROPERTY MAY BE
REQUIRED TO PREPAY SUCH ASSESSMENTS AT THE TIME'THEY
CLOSE THEIR SALE OR REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials
Initials Date Initials
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Date
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ATTACHMENT 2
Insurance Requirements. PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the lndemnitees (if
agreed to in a written contract or agreement) before the any lndemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto).
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately
to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions; Any deductibles or self-insured retentions
must be declared to and approved by ABAG. The insurer shall reduce or eliminate such
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deductibles or self-insured retentions as respects the lndemnitees; or the PACE Provider
shall satisfy any such deductibles,or self-insured retentions. In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
lndemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The lndemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the lndemnitees.
(iii) Any insurance or self-insurance maintained by the lndemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice.of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not ext~nd to any defense or indemnity coverage for the
active negligence of the lndemnitees in any case where an agreement to defend
and indemnify the lndemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions-Workers Compensation. The Workers
Compensation insurance shall be endorsed to waive subrogation against the
lndemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be received and approved by ABAG
before work commences. ABAG reserves the right to require complete, certified
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copies of all required insurance. policies, including endorsements effecting the
coverage required by these specifications at any time.
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TO: Figtree PACE Program
IN WITNESS WHEREOF, the City of Cupertino (“Participating Entity”) adopts the
Agreement for Collaborative Services (“Agreement”), establishing operating procedures
for Figtree PACE Program within the jurisdiction of the Participating Entity.
City of Cupertino:
By: _______________________________ Date: _________________
David Brandt
City Manager
Method and Place of Giving Notice. All notices to the Participating Entity shall be made
in writing and shall be given by personal delivery or by the U.S. Mail or courier service.
Notices shall be addressed as follows:
Misty Mersich, Sustainability Manager
10300 Torre Ave
Cupertino, CA 95014
(408) 777-3362
mistym@cupertino.org
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AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"), dated as of March 21L..2016
("Effective Date") is by and among the Association of Bay Area Governments
(hereinafter "ABAG"), Ygrene Energy Fund California LLC, (hereinafter "PACE Provider"),
as an entity administering a Property Assessed Clean Energy (PACE) financing program
utilizing either the California Assembly Bill 811 and/or California Senate Bill 555 model
and any Participating Entity, as defined in Section 1.3 below, that adopts this
Agreement.
RECITALS
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (A BAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN seeks to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with making informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
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WHEREAS, the PACE Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
upgrade industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 "Eligible improvement" is a technology, product or tool officially approved by
the PACE provider. The improvements may include distributed generation
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG territory administering a
program providing Property Assessed Clean Energy (PACE) financing.
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1.3 "Participating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopts this
Agreement.
1.4 IIParticipating Contractor' is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (levine, 2008) ("AB 811")'
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) ("SB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 IIWork" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work I Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to California Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
have the right to do any or all of the following: (a) require PACE Provider to
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discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of Section 5, Termination; or (c) pursue any and all other remedies
available to ABAG at law or in equity.
2.3 Financing Provision Requirements.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation types), including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that all property taxes for the assessed property are current for the
previous three years or since the current owner acquired the property,
whichever is shorter.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position.
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
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2.4 Financial Policies.
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE Loan Loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than as required by law, by request of Participating Entity, electronic
access to the name, business name} and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
2.5.3 Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Participating Entity by request for internal evaluation purposes only (and
not for distribution to any third party, including, without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
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a. Required data:
i. Assessor's Parcel Number (APN) of the property
ii. Dollar amount financed (the amount of the assessment
and/or special tax)
iii. Listing of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.5.3(a)(ii}-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports provided by a PACE Provider
pursuant to Section 2.5.3(b) (if any).
2.5.4 Provide the documents required for participation in the PACE
Providers' PACE Financing program to Participating Entity officials.
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2.5.5 Provide support to Participating Entity's staff to facilitate adoption
of required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7 Branding I Marketing Requirements.
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product.
ABAG will encourage ABAG members to:
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2.7.7 Present with impartiality the financing products of the PACE Providers in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding Participating Contractor.
PACE Providers will:
2.8.1 Require that contractors have the appropriate California State License
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State License Board requirements,
that contractors' bonding is in good standing
2.8.3 Require, in accordance with California State License Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $1M of commercial general
liability insurance
2.8.S NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
ABAG& Fund CA
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3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
5 Termination.
5.1 Termination without Cause. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the PACE Provider's ability to levy and collect assessments
and/or special taxes and the PACE Provider's ability to issue bonds or otherwise
finance contracts located within the jurisdiction of such Participating Entity,
which have been entered into prior to the date of termination. In the event of
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termination pursuant to this Section 5 by ABAG, ABAG may notify all
Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save
harmless and waive subrogation against the ABAG, and its members, elected and
appointed officials, officers and employees (Indemnitees) against any and all liability,
claims, losses, damages, or expenses, including reasonable attorneys' fees, arising from
all acts or omissions to act of PACE Provider or its officers, agents, or employees in
rendering services under this contract; excluding, however, such liability, claims, losses,
damages or expenses resulting from an intentional act or the gross negligence of an
Indemnitee.
This section shall in no event be construed to require indemnification by PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
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control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or of any Participating Entity
and is not entitled to participate in any pension plan, worker's compensation
plan, insurance, bonus, employment protection, or similar benefits that ABAG or
the Participating Entity provides its employees.
9.3 Conflict of Interest. PACE Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
financial conflict of interest under state law or that would otherwise conflict in
any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall be employed.
9.4 Statutory Compliance. PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. All nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (30) days, such assurance of due performance as is adequate under
the circumstances of the particular case is a repudiation of this Agreement.
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aggrieved party's right to demand adequate assurance of future performance.
Nothing in this Article limits the parties' right to terminate this Agreement pursuant
to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
unless and until the other party shall have so consented; provided however, that
PACE Provider may assign this Agreement in connection with a merger or the sale of
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
Address: ---------------------------
Facsimile: ---------------------------
Email address: ------------------------
Ygrene Energy Fund California LLC
Attn: Bart Van Voorhis
Executive Vice-President
815 5th Street
Santa Rosa, CA 95404
Email address:bart@ygrene.us
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
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13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
13.2 Construction. To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. The parties covenant and
agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement, the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
13.3 Consent. Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
13.4 No Third Party Beneficiaries. Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
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13.7 Merger. This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed by both parties.
13.8 Survival of Terms. All express representations, waivers, indemnifications,
and limitations of liability included in this Agreement will survive its
completion or termination for any reason.
13.9 Time of Essence. Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original,
constituting one and the same instrument. The delivery by facsimile or
electronic mail of an executed copy of this Amendment shall be deemed
valid as if an original signature was delivered
Continued on next page:
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IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
Agreement as of the Effective Date.
PACE PROVIDER: ________ _ ABAG: ~ ____________ ~
YGRENE ENERGY FUND CALIFORNIA LLC,
ite~Liability Company
/
By:
Name: Stacey Lawson _____ _ Name: --------~--------
Title: President/CEO _____ _ Title:
Date: Date: __ --+ __ -1--1-___ _
APPROVED AS TO FORM FOR ABAG
Date: ~f-----=--:I'--BY:f---~ __
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AnACHMENT l(a)
ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy assessments as "loans" instead of "assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal Financing Housing Authority re:
PACE programs:
KeglOnal Coilaborative Services Aar'=>Pl"I'1lpnr for ABAG& Fund CA LLC
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•
•
•
•
•
•
ABAG&
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ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULL Y REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN EVENT OF
DEFAULT UNDER SUCH AGREEMENTS OR SECURITY INSTRUMENTS.
DEFAULTING UNDER AN EXISTING MORTGAGE AGREEMENT OR
SECURITY INSTRUMENT COULD HAVE SERIOUS CONSEQUENCES TO
YOU, WHICH COULD INCLUDE THE ACCELERATION OF THE
REPAYMENT OBLIGATIONS DUE UNDER SUCH AGREEMENT OR
SECURITY INSTRUMENT. IN ADDITION, FANNIE MAE AND FREDDIE
MAC, THE OWNER OF A SIGNIFICANT PORTION OF ALL HOME
MORTGAGES, STATED THAT THEY WOULD NOT PURCHASE HOME
LOANS WITH ASSESSMENTS SUCH AS THOSE OFFERED BY THE
AUTHORITY. THIS MAY MEAN THAT PROPERTY OWNERS WHO SELL OR
REFINANCE THEIR PROPERTY MAY BE REQUIRED TO PREPAY SUCH
ASSESSMENTS AT THE TIME THEY CLOSE THEIR SALE OR
REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
ABAG&
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ATTACHMENT 2
Insurance Requirements. PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the Indemnitees (if
agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto}.
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately
to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by ABAG. The insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the Indemnitees; or the PACE Provider
ABAG&
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shall satisfy any such deductibles or self-insured retentions. In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the
active negligence of the Indemnitees in any case where an agreement to defend
and indemnify the Indemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions -Workers Compensation. The Workers
Compensation insurance shall be endorsed to waive subrogation against the
Indemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be received and approved by ABAG
before work commences. ABAG reserves the right to require complete, certified
copies of all required insurance policies, including endorsements effecting the
coverage required by these specifications at any time.
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TO: Ygrene
IN WITNESS WHEREOF, the City of Cupertino (“Participating Entity”) adopts the
Agreement for Collaborative Services (“Agreement”), attached hereto as Exhibit A and
incorporated herein, establishing operating procedures for Ygrene PACE Program
within the jurisdiction of the Participating Entity.
City of Cupertino:
By: _______________________________ Date: _________________
David Brandt
City Manager
Method and Place of Giving Notice. All notices to the Participating Entity shall be made
in writing and shall be given by personal delivery or by the U.S. Mail or courier service.
Notices shall be addressed as follows:
Misty Mersich, Sustainability Manager
10300 Torre Ave
Cupertino, CA 95014
(408) 777-3362
mistym@cupertino.org
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AGREEMENT FOR COLLABORATIVE SERVICES
FOR PROPERTY ASSESSED CLEAN ENERGY FINANCING
This Agreement for Collaborative Services ("Agreement"L dated as of
I 2016 ({{Effective Date Jl
) is by and among the Association of Bay Area Governments
(hereinafter "ABAG"L Western Riverside Council of Governments (hereinafter "PACE
Provider")' as an entity administering a Property Assessed Clean Energy (PACE) financing
program utilizing either the California Assembly Bill 811 and/or California Senate Bill
model and any Participating Entity, as defined in Section 1.3 below, that adopts this
Agreement.
WHEREAS, ABAG is committed to mitigating and adapting to the causes and impacts of
climate change and supporting energy independence from fossil fuels to safeguard the
environment, human health and the economy; and
WHEREAS, ABAG as Program Administrator for the Bay Area Regional Energy Network
(BayREN), works closely with 101 cities in the nine county Bay Area region (ABAG
territory) to develop and implement innovative energy efficiency programs, including
supporting commercial and residential Property Assessed Clean Energy (PACE)
programs; and
WHEREAS, the BayREN offers programs, technical resources and education for energy
upgrades and retrofits; and
WHEREAS, the objective of the BayREN is to help property owners save energy, save
money, and live comfortably; and
WHEREAS, the BayREN to assist local governments to understand all aspects of
partnering with PACE Providers in order to minimize customer confusion, provide access
to education and information to property owners and assist with informed
decisions on rebates and incentives, contractor programs, and financing options; and
WHEREAS, the PACE Provider is willing to participate to support community climate
goals and minimize consumer and contractor confusion; and
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WHEREAS, the Provider will provide support and resources to any Participating
Entity as requested related to education, outreach and development of the energy
industry and trades; and
WHEREAS, the PACE Provider will support, align and integrate its efforts with the
community-wide goals for job creation, resource demand reduction, and renewable
energy generation; and
WHEREAS, the PACE Provider will establish its own interest rates, repayment terms, and
fees as state and federal laws and the market defines and allows; and
WHEREAS, the PACE Provider will arrange for the collection of Property Assessed Clean
Energy assessments it has financed directly with the Participating Entity's County Tax
Collector's Office; and
WHEREAS, this Agreement does not include any financial arrangements between the
PACE Provider, ABAG and the Participating Entity adopting this Agreement, nor does it
preclude any separate contracts, contract terms for services or support; and
WHEREAS, the purpose of this Agreement is to set forth the mutual understandings
between ABAG and the PACE Provider and to establish basic operating procedures for
any PACE provider operating within the ABAG territory, and any Participating Entity that
adopts this agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein, the parties hereto agree as follows:
AGREEMENT
1 Definitions.
1.1 "Eligible improvement" is a technology, product or tool officially approved by
PACE improvements include distributed
renewable energy sources, energy and water efficiency improvements, and
electric vehicle charging infrastructure improvements that will be permanently
affixed to real property, and any additional improvements deemed eligible in
the future by the California Legislature and/or the California Judiciary.
1.2 "PACE Provider" is an entity participating in ABAG territory administering a
program providing Property Clean (PACE) financing.
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1.3 "Participating Entity" is any city, town, county or the City and County of San
Francisco located within ABAG's geographical boundaries that adopt this
1.4 "Participating Contractor" is any contractor that has agreed to, and abides, by
the terms and conditions of the PACE Provider's contractor standards.
1.5 "Property Assessed Clean Energy (PACE) Financing" is a means of financing
distributed generation, renewable energy sources, energy and water efficiency
improvements, electric vehicle charging infrastructure and other
improvements deemed eligible by the California legislature that will be
permanently affixed to real property, whereby the funds provided to pay for
the improvements are repaid through contractual assessments and/or special
taxes, utilizing either California Assembly Bill 811 (Levine, 2008) (flAB 811")'
which amended §§5898.10-5899.3 of the California Streets and Highways
Code; or California Senate Bill 555 (Hancock, 2011) (((SB 555"), which amended
certain portions of §§53311-53368.3 of the California Government Code and
each as subsequently amended.
1.6 "Work" as defined throughout this Agreement is the collaborative, non-
competitive, effort between the PACE Provider and ABAG to support the
citizens of ABAG member jurisdictions in completing water, energy efficiency
upgrades, and the installation of renewable energy generating improvements.
2 Scope of Work / Collaboration.
2.1 PACE Provider's Specified Services. The PACE Provider will offer and provide
Property Assessed Clean Energy Financing under the requirements of AB 811
and/or SB 555.
2.2 Performance Standard. PACE Provider shall perform all work hereunder in a
manner consistent with the level of competency and standard of care normally
observed by an organization administering a Property Assessed Clean Energy
financing program pursuant to California Assembly Bill 811 and/or California
Senate Bill 555. ABAG has relied upon the professional ability and expertise of
PACE Provider as a material inducement to enter into this Agreement. PACE
Provider hereby agrees to provide all services under this Agreement in
accordance with generally accepted professional practices and standards of
care, as well as the requirements of applicable federal, state and local laws. If
ABAG is concerned that any of PACE Provider's work is not in accordance with
the level of competency and standard of care described herein, ABAG shall
have the right to do any or all of the following: (a) require PACE Provider to
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discuss with Participating Entity and/or to review the quality of the work and
resolve matters of concern; (b) terminate this Agreement pursuant to the
provisions of . or (c) pursue any and all other remedies
available to ABAG at law or in equity.
The PACE Provider will:
2.3.1 Include a process to receive acknowledgement and confirmation of
satisfaction with work completed from the applicant before project
payment is disbursed and have a published dispute resolution process
available for customers.
2.3.2 Provide summary of financing details (including assessment or special tax
amount and terms, financing installments and estimated administrative
expenses) to the applicant specific to the requested amount of the
financing.
2.3.3 For residential properties, require an applicant's acknowledgment of the
Federal Housing Finance Agency position on PACE by a separate
signature/initial acknowledgement, in a Residential Disclosure Signature
Form that is substantially similar in content to Attachment l(a) or l(b), as
approved by ABAG.
2.3.4 Provide training to contractors and information to property owners on
the availability of rebates (for all utility and generation typesL including
and not limited to city and county rebate programs, BayREN programs,
PG&E programs, and other such offerings. (For information about local
programs, the contractor and/or home owner may be directed to the
BayREN Home Upgrade Advisor at 866-878-6008.)
2.3.5 Require that applicable building permits are obtained for all
improvements in Participating Entities.
2.3.6 Verify that all property taxes for the assessed property are current for the
previous three years or since the current owner acquired the property,
whichever is shorter.
2.3.7 Recommend that property owners consult with a tax professional prior to
claiming any tax deductions associated with the project and not
recommend that homeowners take any particular filing position
regarding their annual or semi-annual PACE assessment payments.
2.3.8 Not represent that the full assessment is tax deductible.
2.3.9 Have a consistent plan for removal of assessments at end of repayment
term, prepayment and/or in the event of program closure.
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2.4
The PACE Provider will:
2.4.1 For programs offering residential PACE financing, be an active participant
in the California Alternative Energy and Advanced Transportation
Financing Authority (CAEATFA) PACE loan loss Reserve Program or
comparable loan loss reserve program which includes at minimum the
parameters outlined in Attachment 2.
2.4.2 Notify ABAG six months in advance if funding capacity available from the
PACE Provider to prospective PACE customers in the Participating Entity
will fall below the amount dispersed in the previous six months of
operation.
2.4.3 Notify ABAG of any foreclosure action as a result of a default in the
payment of a PACE assessment on property within ABAG's geographical
boundaries, where the PACE assessment was originated by the PACE
Provider.
2.5 Documents, Data, and Information Policies.
The PACE Provider will:
2.5.1 Provide to Participating Entity (for internal evaluation purposes only and
not for distribution to any third party or for marketing purposes, other
than as required by law) by request of Participating Entity, electronic
access to the name, business name, and California State Contractors
license number of participating contractors of the PACE Provider's
program whose business address is located in the requesting
Participating Entity or who conduct business in the requesting
Participating Entity.
2.5.2 Retain completed Residential Disclosure (hardcopy or electronic) on file
for duration of assessment, and furnish to Participating Entity upon
request.
Provide upon request either direct real time access to data or quarterly
reports in an open electronic file format (such as Microsoft Excel) to
Entity by for internal evaluation purposes only (and
not for distribution to any third party, including, without limitation, utility
companies, services providers and equipment manufacturers or for
marketing purposes) that includes the following information for each
assessment:
a. Required data:
Number (APN)
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iL Dollar amount financed (the amount of the assessment
and/or special tax)
iii. of all energy efficiency and water conservation
eligible improvements installed by virtue of the
financing, including the unit of measure for the
improvement and the quantity installed as captured by
Participating Contractor
iv. Listing of all renewable generation improvements
installed and the solar STC-DC rating in watts or kilowatts
as captured by Participating Contractor
v. Estimated energy and water savings (in appropriate
units) associated with the project
vi.
b. If available (in the aggregate):
i. Amount of rebate or incentive dollars associated with
the project (not financed) and the name of the program
ii. How the customer heard about PACE financing
iii. Why the customer selected PACE over other financing
instruments available
iv. Why the customer selected their final PACE Provider
over the other members
The Participating Entity will:
Maintain the privacy and security of data received from PACE Provider. Participating
Entity shall comply with all applicable state and federal laws, regulations and applicable
California Public Utilities Commission regulations. Participating Entity may only provide
reports relating to Section 2.S.3{a)(ii}-(v) for public distribution that aggregate the data
such that individual customer information cannot be identified, unless such customer
has authorized written release of individual customer information. A Participating Entity
shall not share with any third party the data and reports provided by a PACE Provider
pursuant to Section 2.S.3(b) (if any).
participation in Providers'
PACE Financing program to Participating Entity officials.
2.S.5 Provide support to Participating Entity's staff to facilitate adoption of
required participation documents.
2.6 ABAG will encourage Participating Entity to offer staff resources and
support to bring forward to their respective boards or councils the documents
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provided by the PACE Provider required for participation in the PACE Provider's PACE
financing product.
2.7
The Parties will:
2.7.1 Collaborate on any local and/or regional efforts that may impact PACE
financing participation to achieve the best possible outcome for property
owners.
2.7.2 Represent the role of ABAG as the local neutral third party, not-for-profit,
public service agency supporting the public through the upgrade process,
with the following message to consumers: Among the financing products
available, competition is encouraged to the benefit of the consumer, with
the common goal of successful completion of projects.
The PACE Provider will:
2.7.3 Provide assistance to ABAG and any Participating Entity signing this
Agreement for: (1) coordinating and implementing the integration of the
PACE Provider into applicable BayREN and other relevant energy
efficiency programs; and (2) support of contractor training.
2.7.4 Provide specific training for participating contractors engaged with local
PACE programs using the PACE Provider's financing product, materials,
collateral, tools, and associated software, through training offered
directly from the PACE Provider.
2.7.5 Provide professional services, template documents, and other services
reasonably necessary to staff for integrating the PACE Provider's
financing option into the websites of any Participating Entity requesting
such assistance.
2.7.6 Provide training and resources to any Participating Entity as needed to
build understanding and support for use of the PACE financing product
ABAG will encourage ABAG members to:
2.7.7 products of PACE Providers in
all venues to the public.
2.7.8 Present marketing collateral of all financing products (where applicable)
with impartiality in education and outreach materials and events
2.8 PACE Providers Responsibilities Regarding .:.......;;;;.;~~;...::.:..:.,.~::...=...;...:...;:;.;....;:;..;;;...::..;=-.:..
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2.8.1 Require that contractors have the appropriate California State License
Board (CSLB) license in good standing
2.8.2 Require, in accordance with California State License Board requirements,
that contractors' bonding is in good standing
2.8.3 Require, in accordance with California State License Board requirements,
that contractors have appropriate Workers' Compensation coverage
2.8.4 Require that contractors have a minimum of $lM of commercial general
liability insurance
2.8.5 NOT endorse, recommend, or refer any specific contractor other than
contractors who are to PACE Provider's knowledge, in good standing with
CSLB, are insured and meet material program eligibility requirements
2.8.6 NOT make any representation or warranty regarding the qualifications,
licensing, products, or workmanship of any contractor
2.8.7 NOT make any warranty regarding the contractor's work or products
purchased from contractors provided
2.8.8 NOT accept any liability that may be alleged to arise from the work of any
listed contractor on a customer project or from any reliance on any
claims, statements, or other descriptions regarding a contractor's
certifications, licenses, qualifications or products
2.8.9 Comply with provisions of Section 2.3.7 of this Agreement.
2.8.10 Via trainings and customer complaint system, require that contractors
and their representatives, employees, and agents do not represent
themselves as agents, representatives, contractors, subcontractors, or
employees of ABAG or any Participating Entity, or claim association or
affiliation with ABAG or any Participating Entity.
2.8.11 Independently engages the Participating Entity's Tax Collector for
administration of property tax assessments placed through its financing
product.
3 Payment. This Agreement does not include any financial arrangements between the
PACE Provider and ABAG, nor does it preclude any separate contracts for services or
support.
4 Term of Agreement. The term of this Agreement shall be from the Effective Date
until termination in accordance with the provisions of Section 5, Termination below.
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5 Termination.
5.1 ~:....;..:-:...;..;..;;..;;.;...;;..;....;;;.;;..,;--:....:....;...;;.~:.;..;:.....:::..;:;;...:;~. Notwithstanding any other provision of this
Agreement, at any time and without cause, ABAG, PACE Provider, or any
Participating Entity shall have the right, in its sole discretion, to terminate this
Agreement by giving 30 days written notice to the other Party to this
Agreement; provided that a party's termination of this Agreement under this
section shall not automatically terminate any other agreement or contract
between the other parties.
5.2 Termination for Cause. Notwithstanding any other provision of this Agreement,
should the PACE Provider fail to uphold any of its obligations under this
Agreement in a material way, within the time and in the manner herein
provided, or otherwise materially violate any of the terms of this Agreement,
ABAG or a Participating Entity may, after providing the PACE Provider with a
thirty (30) day cure period, immediately terminate this Agreement by giving
PACE Provider written notice of such termination, stating the reason for
termination; provided that the termination of this Agreement shall not
automatically terminate any other agreement or contract between or among
the parties.
5.3 Delivery of Data and Information upon Termination. In the event of
termination, PACE Provider, within 14 days following the date of termination,
shall deliver to the extent legally permitted to Participating Entity all raw data
and information in an editable electronic format as outlined in and subject to
the terms of Section 2.5, Document, Data, and Information Policies.
5.4 Authority to Terminate. The Executive Director of ABAG has the authority to
terminate this Agreement on behalf of ABAG
5.5 Effect of Termination. Termination of this Agreement by ABAG or Participating
Entity shall not affect the ability to levy and collect assessments and the PACE
Provider's ability to issue bonds for assessment contracts located within the
jurisdiction of such entity which have been entered into prior to the date of
termination.
In the event of termination pursuant to this Section 5 by ABAG, ABAG may
notify all Participating Entities of said termination.
6 Hold Harmless, Indemnity and Waiver of Subrogation.
To the fullest extent allowed by law, PACE Provider shall defend, indemnify, save
harmless and waive subrogation against the ABAG, and its members, elected and
appointed officials, officers and employees (Indemnitees) against any and all liability,
or including reasonable ':lTTnrr'\ou'C' from
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all acts or omissions to act of PACE Provider or its officers, agents, or employees in
rendering services under this contract; excluding, however, such liability, claims, losses,
damages or expenses resulting from an intentional act or the gross negligence of an
Indemnitee.
This shall in no event construed to indemnification PACE Provider
to a greater extent than permitted under the public policy or laws of the State of
California. These defense and indemnification obligations are undertaken in addition to,
and shall not in any way be limited by, the insurance obligations set forth in this
Agreement. These defense and indemnification obligations shall survive the termination
or expiration of the contract for the full period of time permitted by law.
7 Insurance Requirements. PACE provider shall obtain and maintain insurance as
required in Attachment 2.
8 Prosecution of Work. The execution of this Agreement shall constitute PACE
Provider's authority to proceed immediately with the performance of this
Agreement.
9 Representations of PACE Provider.
9.1 Standard of Care. ABAG and Participating Entity have relied upon the
professional ability and training of PACE Provider as a material inducement to
entering into this Agreement. PACE Provider hereby agrees that all its work will
be performed and that its operations shall be conducted in accordance with
generally accepted and applicable professional practices and standards as well
as the requirements of applicable federal, state and local laws.
9.2 Status of PACE Provider. The parties intend that PACE Provider, in performing
the services specified herein, shall act as an independent contractor and shall
control the work and the manner in which it is performed. PACE Provider is not
to be considered an agent or employee of ABAG or of any Participating Entity
and is not entitled to participate in any pension plan, compensation
plan, insurance, bonus, employment protection, or similar benefits that ABAG or
the Participating Entity provides its employees.
Provider covenants that it presently has no interest
and that it will not acquire any interest, direct or indirect, that represents a
of interest state or that would in
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any manner or degree with the performance of its services hereunder. PACE
Provider further covenants that in the performance of this Agreement no
person having any such interests shall employed.
PACE Provider agrees to comply with all federal, state
and local laws, regulations, statutes and policies applicable to the services
provided under this Agreement as they exist now and as they are changed,
amended or modified during the term of this Agreement.
9.5 Nondiscrimination. Without limiting any other provision hereunder, PACE
Provider shall comply with all applicable federal, state, and local laws, rules, and
regulations in regard to nondiscrimination in employment because of race,
color, ancestry, national origin, religion, sex, gender identity, marital status, age,
medical condition, pregnancy, disability, sexual orientation or other prohibited
basis. A" nondiscrimination rules or regulations required by law to be included
in this Agreement are incorporated herein by this reference.
9.6 Authority. The undersigned hereby represents and warrants that he or she has
authority to execute and deliver this Agreement on behalf of PACE Provider.
10 Demand for Assurance. Each party to this Agreement undertakes the obligation
that the other's expectation of receiving due performance will not be impaired.
When reasonable grounds for insecurity arise with respect to the performance of
either party, the other may in writing demand adequate assurance of due
performance and until such assurance is received may, if commercially reasonable,
suspend any performance for which the agreed return has not been received. After
receipt of a justified demand, failure to provide within a reasonable time, but not
exceeding thirty (3D) days, such assurance of due performance as is adequate under
the circumstances of the particular case is a repudiation of this Agreement.
Acceptance of any improper delivery, conduct, or service does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
Nothing in this Article limits the parties' right to terminate this Agreement pursuant
to Section 5, Termination.
11 Assignment and Delegation. No party hereto shall assign, delegate, sublet, or
transfer any interest in or duty under this Agreement without the prior written
consent of the other, and no such transfer shall be of any force or effect whatsoever
unless and until the other party shall have so consented; provided however, that
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PACE Provider may assign this Agreement in connection with a merger or the sale of
all or substantially all of its assets or equity ownership without the prior written
consent of any other party provided that the successor expressly assumes all of the
obligations, including this Agreement, and confirms all of the representations,
warranties and covenants of PACE Provider hereunder.
12 Method and Place of Giving Notice. All notices shall be made in writing and shall be
given by personal delivery or by U.S. Mail or courier service to:
TO: ABAG:
TO: PACE PROVIDER:
101 8th Street
Oakland, CA 94607
Attn: Jennifer K. Berg
JennyB@abag.ca.gov
Western Riverside Council of Governments
4080 Lemon Street, 3 rd Floor, MS 1032
Riverside, CA 92501
Attn: Executive Director
bishop@wrcog.cog.ca.us
When a notice is given by a generally recognized overnight courier service, the notice
shall be deemed received on the next business day. When a copy of a notice is sent by
facsimile or email, the notice shall be deemed received upon transmission as long as (1)
the original copy of the notice is promptly deposited in the U.S. mail and postmarked on
the date of the facsimile or email, (2) the sender has a written confirmation of the
facsimile transmission or email, and (3) the facsimile or email is transmitted before 5
p.m. (recipient's time). In all other instances, notices shall be effective upon receipt by
the recipient. Changes may be made in the names and addresses of the person to
whom notices are to be given by giving notice pursuant to this paragraph.
13 Miscellaneous Provisions.
13.1 No Waiver of Breach. The waiver by a party of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of
such term or provision or any subsequent breach of the same or any other
term or promise contained in this Agreement.
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13.3
13.4
To the fullest extent allowed by law, the provisions of this
Agreement shall be construed and given effect in a manner that avoids any
violation of statute, ordinance, regulation, or law. parties covenant and
agree that in the event that any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected} impaired, or invalidated thereby. PACE Provider
and ABAG acknowledge that they have each contributed to the making of
this Agreement and that, in the event of a dispute over the interpretation of
this Agreement} the language of the Agreement will not be construed against
one party in favor of the other. Each party hereto acknowledges that they
have each had an adequate opportunity to consult with counsel in the
negotiation and preparation of this Agreement.
Wherever in this Agreement the consent or approval of one party
is required to an act of the other party, such consent or approval shall not
be unreasonably withheld or delayed.
Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in
third parties.
13.5 Applicable Law and Forum. This Agreement shall be construed and
interpreted according to the substantive law of California, regardless of the
law of conflicts to the contrary in any jurisdiction. Any action to enforce the
terms of this Agreement or for the breach thereof shall be brought and tried
in the County of Alameda.
13.6 Captions. The captions in this Agreement are solely for convenience of
reference. They are not a part of this Agreement and shall have no effect on
its construction or interpretation.
13.7 This writing is intended both as the final expression of the
Agreement between the parties hereto with respect to the included terms
and as a complete and exclusive statement of the terms of the Agreement,
pursuant to Code of Civil Procedure Section 1856. No modification of this
Agreement shall be effective unless and until such modification is evidenced
by a writing signed both parties.
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13.8 Survival of Terms. All express representationsl waivers, indemnifications,
and limitations of liability included in this Agreement will survive its
completion or termination for any reason.
13.9 Time is and shall be of the essence of this Agreement and
every provision hereof.
13.10 Counterparts. This Agreement may be executed in two or more
counterparts, a complete set of which shall be deemed an original, constituting
one and the same instrument. The delivery by facsimile or electronic mail of an
executed copy of this Amendment shall be deemed valid as jf an original
signature was delivered
Continued on next page:
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IN WITNESS WHEREOF, the ABAG and the PACE Provider hereto have executed this
as of Date.
PACE PROVIDER: Western Riverside_
Council of Governments
By:
Name: Rick Bishop
Title: Executive Director
Date: March 21, 2016 ____ _
Name: ________ ~ ________ _
Title:
Date: ----~+-----r_------
APPROVED AS TO FORM FOR ABAG
Date: __ +-____ ~~---------
APPROVED AS TO FORM FOR PACE PROVIDER
Date: March 21, 2016 By: __________________ _
Mrunal Shah, Bond Counsel to
Western Riverside Council of
Governments
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ALERT: Fannie Mae/Freddie Mac Instructions for Lenders
SINGLE FAMILY HOME OWNERS: In May, 2010, Fannie Mae and Freddie Mac,
government sponsored enterprises that purchase a large segment of conforming single
family home mortgages, issued new instructions to lending institutions on how to treat
properties with assessments under Property Assessed Clean Energy (PACE) programs
such as . These letters, and additional statements issued by the Federal
Housing Finance Agency, the agency that regulates single family home lenders, instruct
lenders to treat energy assessments as ({loans" instead of {{assessments."
On August 31, 2010, the agencies issued additional instructions to lenders that Fannie
Mae and Freddie Mac "will not purchase mortgage loans secured by properties with an
outstanding PACE obligation."
These letters and statements may lead lenders to conclude the PACE assessment
should be paid off before a property transfers or is refinanced. In addition, it may lead
some lenders to conclude that participating in PACE program is a violation of typical
mortgage terms prohibiting prior liens without lender consent. If you are selling your
property, a buyer's lender may refuse to finance the buyer's first mortgage loan unless
the assessment is paid off. We urge you to carefully read the disclosure information in
the Program application, review your mortgage documents, evaluate the risks of
proceeding with an application at this time, and contact your lender if you have any
concerns or for information regarding any other financing options that may be available
to you.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials Date
Initials Date Initials Date
Continued on next page:
Electronic links to the copies of letters from the Federal Financing Housing Authority re:
programs:
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•
•
•
•
•
•
l012.pdf
l020.pdf
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ATTACHMENT l(b)
BEFORE COMPLETING A PROGRAM APPLICATION, YOU SHOULD
CAREFULL Y REVIEW ANY MORTGAGE AGREEMENT(S) OR OTHER
SECURITY INSTRUMENT(S) WHICH AFFECT THE PROPERTY OR TO
WHICH YOU AS THE PROPERTY OWNER ARE A PARTY. ENTERING
INTO A PROGRAM ASSESSMENT CONTRACT WITHOUT THE CONSENT
OF YOUR EXISTING LENDER(S) COULD CONSTITUTE AN
EVENT OF DEFAULT UNDER SUCH AGREEMENTS OR SECURITY
INSTRUMENTS. DEFAULTING UNDER AN EXISTING MORTGAGE
AGREEMENT OR SECURITY INSTRUMENT COULD HAVE SERIOUS
CONSEQUENCES TO YOU, WHICH COULD INCLUDE THE
ACCELERATION OF THE REPAYMENT OBLIGATIONS DUE UNDER SUCH
AGREEMENT OR SECURITY INSTRUMENT. IN ADDITION,
FANNIE MAE AND FREDDIE MAC, THE OWNER OF A SIGNIFICANT
PORTION OF ALL HOME MORTGAGES, STATED THAT THEY WOULD
NOT PURCHASE HOME LOANS WITH ASSESSMENTS SUCH AS THOSE
OFFERED BY THE AUTHORITY. THIS MAY MEAN THAT PROPERTY
OWNERS WHO SELL OR REFINANCE THEIR PROPERTY MAY BE
REQUIRED TO PREPAY SUCH ASSESSMENTS AT THE TIME THEY
CLOSE THEIR SALE OR REFINANCING.
I/We have read the above statement. All property owners on title must initial below:
Initials Date Initials
Initials Date Initials
Date
Date
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PACE Provider shall maintain insurance as required by this
contract to the fullest amount allowed by law and shall maintain insurance for a period
of five (5) years following the completion of this project. PACE Provider shall provide a
copy of section 21 of this contract and these insurance requirements to its insurance
broker or insurer to confirm compliance. In the event PACE Provider fails to obtain or
maintain completed operations coverage as required by this agreement, ABAG, at its
sole discretion, may purchase the coverage required and the cost will be paid by PACE
Provider. The limits of insurance required in hereunder may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess
insurance shall contain or be endorsed to contain a provision that such coverage shall
also apply on a primary and non-contributory basis for the benefit of the Indemnitees (if
agreed to in a written contract or agreement) before the any Indemnitee's own
Insurance or self-insurance shall be called upon to protect it as a named insured.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence Form CG 0001).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1
(any auto}.
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
Errors and Omissions Liability insurance appropriate to the PACE Provider's profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
(b) Minimum Limits of Insurance. PACE Provider shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately
to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Errors and Omissions Liability: $1,000,000 per claim/aggregate.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must to and insurer shall or such
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deductibles or self-insured retentions as respects the Indemnitees; or the PACE Provider
shall satisfy any such deductibles or self-insured retentions. In addition, policies
containing any self-insured retention (SIR) provision shall provide or be endorsed to
provide that the SIR may be satisfied by either the named Insured or any of the
Indemnitees.
(d) Other Insurance Provisions. The commercial general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
(i) The Indemnitees are to be covered as additional insureds as respects: liability
arising out of work or operations performed by or on behalf of PACE Provider;
completed operations; or automobiles owned, leased, hired or borrowed by
PACE Provider.
(ii) For any claims related to this project, the PACE Provider's insurance coverage
shall be primary insurance as respects the Indemnitees.
(iii) Any insurance or self-insurance maintained by the Indemnitees shall be
excess of PACE Provider's insurance and shall not contribute with it.
(iv) Except for General Liability and Automobile Liability, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty(30) days' prior written notice by
certified mail, return receipt requested, has been given to ABAG. For General
Liability and Automobile Liability, PACE Provider shall provide ABAG with thirty
(30) day's prior notice of cancellation by either the insurer or PACE Provider.
(v) Coverage shall not extend to any defense or indemnity coverage for the
active negligence of the Indemnitees in any case where an agreement to defend
and indemnify the Indemnitees would be invalid under Subdivision (b) of Section
2782 of the Civil Code.
(e) Other Insurance Provisions -Workers Compensation. The Workers
Compensation insurance shall be endorsed to waive subrogation against the
Indemnitees.
(f) Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A: VII, unless otherwise acceptable to ABAG.
(g) Verification of Coverage. PACE Provider shall furnish the ABAG with original
certificates and amendatory endorsements effecting coverage required by this
clause. All certificates and endorsements are to be received and approved by ABAG
before work commences. ABAG reserves the right to require complete, certified
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copies of all required insurance policies, including endorsements effecting the
coverage required by these specifications at any time.
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TO: Western Riverside Council of Governments
IN WITNESS WHEREOF, the City of Cupertino ( “Participating Entity”) adopts the
Agreement for Collaborative Services (“Agreement”), establishing operating procedures
for California HERO within the jurisdiction of the Participating Entity.
City of Cupertino:
By: _______________________________ Date: _________________
David Brandt
City Manager
Method and Place of Giving Notice. All notices to the Participating Entity shall be made
in writing and shall be given by personal delivery or by the U.S. Mail or courier service.
Notices shall be addressed as follows:
Misty Mersich, Sustainability Manager
10300 Torre Ave
Cupertino, CA 95014
(408) 777-3362
mistym@cupertino.org
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TO: CounterPoint Energy Solutions ( Alliance NRG)
IN WITNESS WHEREOF, the City of Cupertino (“Participating Entity”) adopts the
Agreement for Collaborative Services (“Agreement”), establishing operating procedures
for Alliance NRG PACE Program within the jurisdiction of the Participating Entity.
City of Cupertino:
By: _______________________________ Date: _________________
David Brandt
City Manager
Method and Place of Giving Notice. All notices to the Participating Entity shall be made
in writing and shall be given by personal delivery or by the U.S. Mail or courier service.
Notices shall be addressed as follows:
Misty Mersich, Sustainability Manager
10300 Torre Ave
Cupertino, CA 95014
(408) 777-3362
mistym@cupertino.org
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TO: PACE Funding Group
IN WITNESS WHEREOF, the City of Cupertino (“Participating Entity”) adopts the
Agreement for Collaborative Services (“Agreement”), establishing operating procedures
for PACE Funding Group Program within the jurisdiction of the Participating Entity.
City of Cupertino:
By: _______________________________ Date: _________________
David Brandt
City Manager
Method and Place of Giving Notice. All notices to the Participating Entity shall be made
in writing and shall be given by personal delivery or by the U.S. Mail or courier service.
Notices shall be addressed as follows:
Misty Mersich, Sustainability Manager
10300 Torre Ave
Cupertino, CA 95014
(408) 777-3362
mistym@cupertino.org
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2289 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/18/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Application for Alcohol Beverage License for PEFF LLC (dba Enzo's Restaurant), 21275
Stevens Creek Boulevard, Ste. 510
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
Attachment A - Application
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:ApplicationforAlcoholBeverageLicenseforPEFFLLC(dbaEnzo'sRestaurant),
21275 Stevens Creek Boulevard, Ste. 510
RecommendapprovaltotheCaliforniaDepartmentofAlcoholicBeverageControlofthe
applicationforAlcoholBeverageLicenseforPEFFLLC(dbaEnzo'sRestaurant),21275
Stevens Creek Boulevard, Ste. 510
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: February 7, 2017
Subject
Application for Alcoholic Beverage License for PEFF LLC (dba Enzo’s Restaurant), 21275
Stevens Creek Boulevard. Ste. 510
Recommended Action
Recommend approval to the California Department of Alcoholic Beverage Control of the
Application for Alcoholic Beverage License for PEFF LLC (dba Enzo’s Restaurant), 21275
Stevens Creek Boulevard. Ste. 510
Description
Name of Business: Enzo’s Restaurant
Location: 21275 Stevens Creek Boulevard. Ste. 510
Type of Business: Restaurant
Type of License: 47 – On-Sale General – Eating Place (Restaurant)
Reason for Application: Original Fees, Annual Fee
Discussion
There are no zoning or use permit restrictions which would prohibit the sale of alcohol as
proposed and staff has no objection to the issuance of this license. License Type 47 authorizes
the sale of beer, wine and distilled spirits for consumption on the licenses premises and
authorizes the sale of beer and wine for consumption off the licenses premises. This business is
located in the Oaks Shopping Center.
Sustainability Impact
None
Fiscal Impact
None
_____________________________________
Prepared by: Ellen Yau, Assistant Planner
Reviewed by: Benjamin Fu, Assistant Director of Community Development; Aarti Shrivastava,
Assistant City Manager
Approved for Submission by: David Brandt, City Manager
Attachment: A - Application
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 www.cupertino.org
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2315 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:2/1/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Accept resignation of Parks and Recreation Commissioner David Fung and direct staff to fill
the vacancy
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Resignation letter
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:AcceptresignationofParksandRecreationCommissionerDavidFunganddirect
staff to fill the vacancy
AcceptresignationofParksandRecreationCommissionerDavidFunganddirectstafftofill
the unscheduled vacancy:
a.) Application deadline date of Friday, March 10; and
b.) Interview date of Tuesday, March 21
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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OFFICE OF THE CITY CLERK
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: February 7, 2016
Subject
Accept resignation of Parks and Recreation Commissioner David Fung and direct staff
to fill the vacancy.
Recommended Action
Accept resignation of Parks and Recreation Commissioner David Fung and direct staff
to fill the unscheduled vacancy:
a.) Application deadline date of Friday, March 10; and
b.) Interview date of Tuesday, March 21
Background
Parks and Recreation Commissioner David Fung was appointed to the Planning
Commission on January 31, 2017 and resigned his seat on the Parks and Recreation
Commission effective February 1, 2017.
Cupertino Resolution No. 10-048 states that unscheduled vacancies shall be handled in
the following manner:
Notice of unscheduled vacancy shall be posted no earlier than 20 days before nor later
than 20 days after the vacancy occurs, and at least 10 working days before appointment.
The notice of unscheduled vacancy must be posted in the Office of the City Clerk, at the
City Hall bulletin board, at the Cupertino Library, and in other places designated by the
City Clerk.
The notice of unscheduled vacancy was posted on February 1, 2017 in accordance with
the posting requirements.
Sustainability Impact
No sustainability impact.
Fiscal Impact
No fiscal impact.
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_____________________________________
Prepared by: Grace Schmidt, City Clerk
Approved for Submission by: David Brandt, City Manager
Attachments:
A – David Fung Resignation Letter
377
February 1, 2017
Mayor Savita Vaidhyanathan
Cupertino City Hall
10300 Torre Ave
Cupertino, CA 95014
Dear Mayor Vaidhyanathan:
Effective today, I am resigning my appointment to the Cupertino Parks & Recreation Commission. I have
received a new appointment to the Cupertino Planning Commission and will be joining them at their
next scheduled meeting.
It has been a great honor and pleasure to serve Cupertino on the Parks & Recreation Commission. In my
six years of service, we have had a chance to bring positive impact to many city projects including the
renovation of Stevens Creek Corridor, construction of the Environmental Education Center, opening of
Stocklmeir Orchard to the public, improvements at Quinlan Center, and many more. We have been an
important venue for public input on master plan and specific plan projects, the Stevens Creek Bike Trail,
and the greenspace component of development projects. I’m proud to have had the opportunity for our
city to excel in all these areas.
I would also like to thank my fellow commissioners over the years, all who have brought insight and
knowledge to our work. I would also like to thank the incredible staff and leadership of the Recreation
and Community Services Department. Their unending excellence made our oversight and advisory
duties easy.
Finally, I thank you and the Council for your support of the work that I’ve done in the past and the work
that I will do for you in the future.
Sincerely,
David Fung
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2314 Name:
Status:Type:Consent Calendar Agenda Ready
File created:In control:1/31/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Transfer of funds for expenses related to Mayor Vaidhyanathan’s participation in Silicon
Valley Leadership Group’s annual D.C. Advocacy Trip on March 17-19 to meet with Congressional
and Agency officials regarding funding for city and regional priorities
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Event Information
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:TransferoffundsforexpensesrelatedtoMayorVaidhyanathan’sparticipationin
SiliconValleyLeadershipGroup’sannualD.C.AdvocacyTriponMarch17-19tomeetwith
Congressional and Agency officials regarding funding for city and regional priorities
Transfer$2,000tocoverallcosts,notlimitedtotravelexpenses,lodgingandfood,forthe
Mayor’s participation in SLVG’s annual D.C. Advocacy Trip
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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OFFICE OF THE CITY MANAGER
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3212 www.cupertino.org
TELEPHONE: (408) 777-7603 www.cupertino.org
CITY COUNCIL STAFF REPORT
Closed Session Meeting: Feb, 2017
Subject
Transfer of funds for expenses related to Mayor Vaidhyanathan’s participation in Silicon Valley
Leadership Group’s annual D.C. Advocacy Trip on March 17-19 to meet with Congressional
and Agency officials regarding funding for city and regional priorities.
Recommended Action
Transfer $2,000 to cover all costs, not limited to travel expenses, lodging and food, for the
Mayor’s participation in SLVG’s annual D.C. Advocacy Trip.
Background
On an annual basis, SVLG assembles a group of its business members along with interested
local elected officials to travel to Washington D.C. for the purpose of meeting with members of
Congress and officials from various federal agencies to advocate for positions important to the
Silicon Valley region. Typically, the advocacy involves requests for federal funding for regional
priorities. The trip is scheduled for two days including travel time.
Discussion
Given the significant shift in leadership at the federal level, the SVLG has invited mayors from
Santa Clara County to accompany its member representatives in order to express local priorities
with regard to housing and transportation funding as well as ensuring that existing
commitments will be honored. The SVLG trip is a cost effective way for the City to get direct
access to a broad spectrum of federal agencies and members of Congress without requiring the
services of a lobbyist.
Fiscal Impact
Transfer of $2,000 in funds from the City Manager’s Discretionary Budget to the Council
Budget.
_____________________________________
Prepared by: Jaqui Guzmán, Deputy City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A. Email regarding Event Information
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CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2309 Name:
Status:Type:Public Hearings Agenda Ready
File created:In control:1/30/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Petition for Reconsideration regarding the City Council decision of December 6, 2016,
denying Petitioner Kimberly Sandstrom’s appeal of the determination that she is ineligible to purchase
a Below Market Rate (BMR) unit
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A-1 Draft Resolution
B-1 Reconsideration Petition December 19, 2016
C-1 Approved City Council Resolution No. 16-101 (Subject of Reconsideration)
D-1 Approved Housing Commission Minutes June 23, 2016
E-1 Approved Housing Commission Minutes August 11, 2016
F-1 Approved Housing Commission Resolution No. 16-07
G-1 City Council Staff Report from underlying Appeal and its attachments A-H
A- Summary of Conflict of Interest Investigation
B- Draft City Council Resolution No. 16-101
C- Housing Commission Resolution 16-07 (Resolution No. reassigned)
D- Excerpts from BMR Manual Regarding Income Calculation
E- Referenced Regulations (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 Council2/7/20171
Subject:PetitionforReconsiderationregardingtheCityCouncildecisionofDecember6,
2016,denyingPetitionerKimberlySandstrom’sappealofthedeterminationthatsheis
ineligible to purchase a Below Market Rate (BMR) unit
Staff recommends that the City Council:
1.ConsiderthePetitionforReconsideration(AttachmentB-1)anddenyitforitsfailuretomeet
therequirementsofCupertinoMunicipalCode(CMC)Section2.08.096andadopt
Resolution No. 17-016 (Attachment A-1); or, in the alternative;
2.ConductahearingtoreconsideritsdecisionofDecember6,2016baseduponthenew
evidenceandgroundsprofferedbyPetitioner,ifCouncildeterminesthatthePetitionmeets
therequirementsofCupertinoMunicipalCodesection2.08.096,andaffirmitsdecision
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 2
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File #:17-2309,Version:1
therequirementsofCupertinoMunicipalCodesection2.08.096,andaffirmitsdecision
denying Petitioner’s appeal
CITY OF CUPERTINO Printed on 2/1/2017Page 2 of 2
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DEPARTMENT OF COMMUNITY DEVELOPMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3308 • FAX: (408) 777-3333
CITY COUNCIL STAFF REPORT
Meeting: February 7, 2017
Subject
Petition for Reconsideration regarding the City Council decision of December 6, 2016, denying
Petitioner Kimberly Sandstrom’s appeal of the determination that she is ineligible to purchase a
Below Market Rate (BMR) unit
Recommended Action
Staff recommends that the City Council:
1. Consider the Petition for Reconsideration (Attachment B-1) and deny it for its failure to meet
the requirements of Cupertino Municipal Code (CMC) Section 2.08.096 and adopt the Draft
Resolution (Attachment A-1); or, in the alternative;
2. Conduct a hearing to reconsider its decision of December 6, 2016 based upon the new evidence
and grounds proffered by Petitioner, if Council determines that the Petition meets the
requirements of Cupertino Municipal Code section 2.08.096, and affirm its decision denying
Petitioner’s appeal.
Discussion
A petition for reconsideration involves two steps. First, the Council makes an initial procedural
determination as to whether or not grounds for reconsideration exist. In the event Council
determines that such grounds exist, as defined in Cupertino Municipal Code section 2.08.096, then
Council may conduct a hearing to reconsider the substantive merits of Petitioner’s appeal.
In this case, Petitioner has not provided sufficient grounds for Council to reconsider her appeal.
Throughout every stage of her appeal, Petitioner asserts the same facts as presented here: (1) that
there was a conflict of interest and the person who ultimately purchased the unit was not eligible to
purchase it, and (2) that her income did not exceed the maximum allowable income to be eligible to
purchase a Below Market Rate (BMR) unit. Petitioner now further states that she should have had
unlimited time to make her presentation before Council. Petitioner received a full and fair hearing
before the Housing Commission and City Council. Accordingly, there is no basis for
reconsideration.
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Significantly, even if Council were to reconsider its decision, it should be noted that Petitioner’s
annual income exceeded the maximum level eligible to purchase a BMR unit.
Background
The following is a summary of the events that occurred regarding this applicant leading up to the
reconsideration request:
February 11, 2016 Petitioner was determined to be over income for Below Market Rate
housing and a disqualification letter was issued by West Valley
Community Services (WVCS).
February-May, 2016 Petitioner participates in West Valley Community Services’ internal
grievance procedure, each of which affirmed the initial finding that
income exceeded the established income limit.
March 15, 2016 The City requested outside counsel to review the income
determination and they concluded that Petitioners income exceeded
the established income limit to qualify for a BMR unit.
May 3, 2016 Petitioner alleges that WVCS has a conflict of interest in the sale of the
unit.
May 6, 2016 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.
June 23, 2016 The Housing Commission hears the appeal of Petitioners’ appeal
regarding eligibility to purchase BMR unit. Item continued.
August 11, 2016 The Housing Commission adopted Resolution No. 16-07
recommending that the City Council affirm the determination that
Petitioner was ineligible to purchase a BMR unit because her income
exceeds the established income limit, as calculated consistent with the
BMR Manual in effect at the time of the determination of her income .
In addition, because the appeal procedures then in place did not allow
Petitioner to complete her appeal before the affected BMR unit was
sold, the Housing Commission recommended that the City Council
permit Petitioner to retain her current position on the BMR waiting
list. (3-1 vote, Chu absent)
September 20, 2016 The City Council conducted a hearing and received evidence on
Petitioner’s appeal. Petitioner presented evidence that: (1) her income
was improperly calculated; (2) that there was a conflict of interest
between WVCS and Ms. Ma, and the sale was unfair; and (3) she did
not receive proper due process. The matter was continued to October
4, 2016, to allow Council additional time to review and consider all
evidence, including Petitioner’s presentation, and further dialog
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between staff and appellant. (The matter was continued twice more
until December 6, 2016.)
December 6, 2016 At the continued hearing, the City Council adopted Resolution No. 16-
101 denying the appeal of Petitioner and affirming the
recommendation of the Housing Commission regarding the eligibility
of Petitioner to purchase a BMR unit. (5-0 vote)
January 13, 2017 Petitioner provides an “Amended Reconsideration Petition” with
additional grounds, Clerk properly rejects amended petition as
untimely.
Basis for Reconsideration
Cupertino Municipal Code, Section 2.08.096, provides that a petition for reconsideration must be
brought within ten days of the mailing of decision and “shall specify in detail each and every
ground for reconsideration.” Failure of a petition to specify any particular ground or grounds for
reconsideration precludes that particular omitted ground or grounds from being raised or litigated
in a subsequent judicial proceeding.
Section 2.08.096(B) provides five grounds for reconsideration. Petitioner alleges three of them,
which are emphasized in bold below:
1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not
have been produced at any earlier city hearing.
2. An offer of relevant evidence which was improperly excluded at any prior city hearing.
3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its,
jurisdiction.
4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing.
5. Proof of facts which demonstrate that the City Council abused its discretion by:
a. Not preceding in a manner required by law; and/or
b. Rendering a decision which was not supported by findings of fact; and/or
c. Rendering a decision in which the findings of fact were not supported by the evidence.
As discussed in detail below, none of the grounds in Petitioner’s petition supports reconsideration.
Therefore, staff recommends the Petition be denied and Council adopt the findings as set forth in
detail in the Resolution, and as summarized below.
City finding on Municipal Code Section 2.08.096(b)(2): No relevant evidence was improperly
excluded from any hearing. The Petitioner has failed to offered relevant evidence that was
improperly excluded at any prior City meeting, nor was any evidence excluded by the City
Council.
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Petition Response
A. The Petitioner states that evidence of the
transformation and development of the
relationship between Ms. Nguyen and Ms.
Ma was disallowed from presentation on
August 11, 2016, by the Housing
Commission Chair, Harvey Barnett. Mr.
Barnett required the Petitioner to advance to
the closing slides instead of showing the
evidence of WVCS employee relationship to
the Housing Commission.
B. The Petitioner states that the evidence was
provided to the City Clerk but not
reattached to staff report to the City Council.
The City Clerk failed to include the evidence
in the relevant documents attached to the
Appeal as an Agenda item at City Council
meetings.
A. Petitioner does not present any “relevant”
evidence that was excluded from any
hearing. The sole issue before the City
Council is whether Petitioner’s income
exceeded BMR limits. The Housing
Commission Chair properly excluded
Petitioner’s slides which were snapshots of
Facebook pages of WVCS employees and
their families (parents and children) and
personal details about Ms. Ma’s family.
Petitioner presented her allegation regarding
the conflict of interest to the Council.
B. The Housing Commission Chair properly
excluded Petitioner’s slides which were
snapshots of Facebook pages of WVCS
employees and their families (parents and
children) and personal details about Ms.
Ma’s family. Petitioner’s entire presentation
submitted to City Council on September 20,
2016, was included as Exhibit “H” at the
continued hearing of December 6, 2016.
City finding on Municipal Code Section 2.08.096(b)(4): The City provided fair hearings. The
Petitioner has not provided any proof of facts which demonstrate that the City Council failed to
provide a fair hearing.
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Petition Response
A. The Mayor limited presentation time to the
City Council on September 20, 2016, after
the matter was postponed on September 6,
2016. A total of twenty minutes was
granted but more time was requested but
denied. The evidence cited above in section
2 had to be removed from the presentation.
The Mayor frequently has provided much
more time to individuals regarding matters
much less pivotal to residents' quality of
life in Cupertino. The fair and unbiased
operation of the City's Below Market Rate
Housing Program is a serious matter.
Anyone who appeals a determination made
by consultants of the City or City Staff
regarding participation in the BMR
program should be afforded sufficient time
to present all evidence in support of their
appeal.
A. Council provided a fair hearing. Petitioner
was given a total of 20 minutes for her oral
presentation, and her entire power point
presentation was provided and available to
Council.
City finding on Municipal Code Section 2.08.096(b)(5): The City proceeded in a manner
required by law, its decision was supported by findings of fact, and the decision was supported
by the facts. The Petitioner has not provided any proof of facts that demonstrate the Council
abused its discretion by not preceding in a manner required by law, the Council’s decision and its
findings were fully supported by the evidence.
Petition Response
A. Explain facts and how those facts
demonstrate abuse of discretion related to
items (a): The Petitioner notes that Michelle
Ma and the Petitioner had essentially
equivalent salary of about $96,000 per year.
She also notes that Ms. Ma's household
income was about $99,550 or $2,500 below
the limit of $102,050. She further states that
this determination by Goldfarb & Lipman
was greater than the household income
determined by WVCS. She notes that the
City Council is required by Section 2.6 of
Policy and Procedures Manual for
Administering Deed Restricted Affordable
A. Petitioner’s position is that Ms. Ma’s
income was miscalculated. This allegation
is not only irrelevant, it also does not
support a claim that the City did not
proceed in a manner required by law for
Petitioner’s appeal. Moreover, Ms. Ma’s
income calculation was reviewed by the
City’s outside Counsel, and it was
determined she qualified for the unit.
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Conclusion:
Based on the above findings, staff recommends that the City Council deny the Petition for
Reconsideration and uphold the December 6, 2016 City Council decision. Council should conduct
a hearing to reconsider its decision of December 6, 2016 based upon the new evidence and grounds
provided by Petitioner, if Council determines that the Petition meets the requirements in Cupertino
Municipal Code Section 2.08.096. However, none of the evidence presented, even if considered
changes the outcome previously reached by WVCS, outside Counsel, the Housing Commission,
and this Council, that Petitioner’s income, as calculated under the BMR manual provisions in
Housing Units to take action when a
purchaser intentionally makes false
statements or misrepresents facts in order
to appear eligible. Furthermore, Marissa
Ma is not Michelle Ma's dependent.
Determining their household income
should include an examination of Marissa's
cost of living and the source for covering
these costs. Because the source is not
Marissa, nor Michelle, the source is outside
the household and must be included in the
household income.
B. Explain facts and how those facts
demonstrate abuse of discretion related to
items (c): The City Council affirmed the
Housing Commission's recommendation to
find the Petitioner’s family ineligible to
purchase the BMR unit because it upheld
the statement by Ms. Venkatraman that the
Petitioner’s income was $103,648.14, and
therefore over the limit. However the facts
presented by the Petitioner on September
20, 2016 show this is not income. Nor was it
anticipated to be income, based on the
evidence provided at the time of
application. Pursuant to paragraph C of
section 2.08.096, the Petitioner requests that
the City refund all of the reconsideration
fee. The reconsideration is not related to
any income producing opportunity. Rather
it is related to protecting my rights as an
applicant to a City program for safe and
affordable housing in Cupertino.
B. The evidence presented to the Housing
Commission and the City Council, fully
support the City Council’s finding that
Petitioner was not eligible to purchase a
BMR unit. The Council’s finding was
based upon, among other things the
Housing and Urban Development (HUD)
standards in the City’s Below Market Rate
manual, a review of the paychecks, and
bonus income.
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existence at the time, exceeded the amount for her to be eligible to purchase the unit. Therefore, if
reconsideration is granted, staff recommends that Council affirm its December 6, 2016 decision.
_________________
Prepared by: Kerri Heusler, Senior Housing Planner
Reviewed by: Benjamin Fu, Assistant Director of Community Development
Aarti Shrivastava, Assistant City Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
Staff Report February 9, 2017
A-1. Draft City Council Resolution No. 17-XX
B-1. Reconsideration Petition filed by Kimberly Sandstrom received December 19, 2016
C-1. Approved City Council Resolution No. 16-101 (Subject of Reconsideration)
D-1. Housing Commission Meeting Minutes of June 23, 2016
E-1. Housing Commission Meeting Minutes of August 11, 2016
F-1. Approved Housing Commission Resolution No. 16-07
G-1 City Council Staff Report from underlying Appeal and its attachments A-H
A. Summary of Conflict of Interest Investigation
B. Draft City Council Resolution No. 16-101
C. Housing Commission Resolution 16-07 (Resolution No. reassigned)
D. Excerpts from BMR Manual Regarding Income Calculation
E. Referenced Regulations (24 CFR 5.609)
F. Technical Guide for Determining Income
G. Attachments and Other Documents Provided by Appellant
H. Sandstrom presentation
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RESOLUTION NO. 17-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING THE PETITION OF KIMBERLY SANDSTROM SEEKING COUNCIL
RECONSIDERATION OF ITS DECISION TO DENY AN APPEAL OF A HOUSING
COMMISSION RECOMMENDATION TO DENY AN APPEAL REGARDING
ELIGIBILITY OF THE PETITIONER TO PURCHASE A BELOW MARKET RATE
(BMR) UNIT
WHEREAS, on September 20, 2016, the Cupertino City Council held a public
hearing on Ms. Kimberly Sandstrom’s (Petitioner) appeal of a Housing Commission
Recommendation to determine her eligibility to purchase a Below Market Rate (BMR)
Housing Unit, and at the conclusion of the hearing continued the item to a further date;
and
WHEREAS, the matter was also heard and continued on October 4, 2016; and
again on November 1, 2016; and
WHEREAS, on December 6, 2016, at the continued hearing, the Cupertino City
Council affirmed the recommendation of the Housing Commission regarding the
eligibility of Petitioner to purchase a BMR unit; and
WHEREAS, on or about December 19, 2016, Petitioner submitted a Petition for
Reconsideration requesting that the City Council reconsider its decision under the
provisions of Cupertino Municipal Code Section 2.08.096(B) (2),(4), and (5); and
WHEREAS, on or about January 13, 2017, Petitioner presented an “Amended
Reconsideration Petition” stating additional grounds for reconsideration which was
returned as untimely; and
WHEREAS, the Cupertino City Council's decision was wit hin its discretion and
made at a properly noticed public meeting; and
WHEREAS, the City Council has considered all relevant evidence presented by
the parties at all hearings, including evidence presented at the February 7, 2017
reconsideration hearing.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
391
1. Petitioner’s Petition for Reconsideration does not present relevant evidence that
was excluded at a prior hearing; does not present proof of fact demonstrating
how the City failed to provide a fair hearing; or proof of facts that the Council
abused its discretion by not proceeding in a manner required by law or
rendering a decision which was not supported by the evidence as required by
Municipal Code Section 2.08.096.
2. Petitioner did not provide new relevant evidence which, in the exercise of
reasonable diligence, could not have been produced at any earlier city hearing
(Municipal Code § 2.08.096 (B) (1)).
3. Petitioner did not provide relevant evidence which was improperly excluded at
any prior city hearing (Municipal Code § 2.08.096 (B) (2)).
4. Petitioner failed to provide proof of facts which demonstrate that the City
Council proceeded without, or in excess of its, jurisdiction (Municipal Code §
2.08.096 (B) (3)).
5. Petitioner failed to present any evidence that the City Council failed to provide a
fair hearing (Municipal Code § 2.08.096 (B) (4).
6. Petitioner failed to demonstrate that the City Council abused its discretion by not
proceeding in a manner required by law; rendering a decision which was not
supported by findings of fact; and/or rendering a decision in which the findings
of fact were not supported by the evidence (Municipal Code § 2.08.096 (B) (5)).
7. City Council further determines that:
a. The Amended Reconsideration presented on January 13, 2017 was
untimely under Cupertino Municipal Code Section 2.08.096, and was
properly returned;
b. The City Council's decision is supported by findings of fact attached as
Exhibit A.
c. The findings of fact related to the City Council's decision were supported
by substantial evidence in the record of proceedings.
d. Even if reconsideration were granted, none of the evidence presented in
the Petition for Reconsideration changes the outcome previously reached
by WVCS, outside Counsel, the Housing Commission and this Council,
that Petitioner’s income, as calculated under the BMR manual provision s
in existence at the time, exceeded the amount for her to be eligible to
purchase the unit.
392
8. The petitioners' Petition for Reconsideration of the City Council's decision of
December 6, 2016 is DENIED, thereby affirming the original decision.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 7th day of February, 2017 by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_______________________ __________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor
City of Cupertino
393
EXHIBIT A
CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION
Cupertino Municipal Code section 2.08.096 states:
A. The City Clerk shall forthwith mail all notices of decision after the decision of the City
Council. Any interested person, prior to seeking judicial review of any adjudicatory decision of
the City Council, shall file a petition for reconsideration with the City Clerk within ten days of
the date of the mailing of the notice of decision. Failure to file a petition for reconsideration
constitutes a waiver of the right to request reconsideration and the City Council's decision shall
be final for all purposes. Upon timely receipt of a petition for reconsideration, the City Clerk
shall schedule a reconsideration hearing to be commenced by the City Council no later than
sixty days after the filing of the petition. Mailed notices of the date, time and place of such
hearing will be provided to all interested persons at least ten days prior to the hearing. At the
conclusion of the hearing for reconsideration, the City Council may affirm, reverse, or modify
its original decision, and may adopt additional findings of fact based upon the evidence
submitted in any and all city hearings concerning the matter.
B. A petition for reconsideration shall specify, in detail, each and every ground for
reconsideration. Failure of a petition to specify any particular ground or grounds for
reconsideration, precludes that particular omitted ground or grounds from being raised or
litigated in a subsequent judicial proceeding.
The grounds for reconsideration are limited to the following:
1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could
not have been produced at any earlier city hearing.
2. An offer of relevant evidence which was improperly excluded at any prior city hearing.
3. Proof of facts which demonstrate that the City Council proceeded without, or in excess
of its jurisdiction.
4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing.
5. Proof of facts which demonstrate that the City Council abused its discretion by:
a. Not proceeding in a manner required by law; and/or
b. Rendering a decision which was not supported by findings of fact; and/or
c. Rendering a decision in which the findings of fact were not supported by the
evidence.”
The Petition for Reconsideration submitted by Kimberly Sandstrom requests reconsideration
based upon Cupertino Municipal Code Sections 2.096(B)(2),(4), and (5). Each of the grounds for
the reconsideration as submitted by the petitioner and the City’s findings of fact and responses
to each of the grounds are listed below.
394
City finding on Municipal Code Section 2.08.096(b)(2): No relevant evidence was
improperly excluded from any hearing. The Petitioner has failed to offered relevant
evidence that was improperly excluded at any prior City meeting, nor was any evidence
excluded by the City Council.
Petition Response and Findings of Fact
A. The Petitioner states that evidence of
the transformation and development
of the relationship between Ms.
Nguyen and Ms. Ma was disallowed
from presentation on August 11,
2016, by the Housing Commission
Chair, Harvey Barnett. Mr. Barnett
required the Petitioner to advance to
the closing slides instead of showing
the evidence of WVCS employee
relationship to the Housing
Commission.
B. The Petitioner states that the evidence
was provided to the City Clerk but not
reattached to staff report to the City
Council. The City Clerk failed to
include the evidence in the relevant
documents attached to the Appeal as
an Agenda item at City Council
meetings.
A. Petitioner does not present any
“relevant” evidence that was excluded
from any hearing. The sole issue before
the City Council is whether Petitioner’s
income exceeded BMR limits. The
Housing Commission Chair properly
excluded Petitioner’s slides which were
snapshots of Facebook pages of WVCS
employees and their families (parents
and children) and personal details about
Ms. Ma’s family. Petitioner presented
her allegation regarding the conflict of
interest to the Council.
B. The Housing Commission Chair
properly excluded Petitioner’s slides
which were snapshots of Facebook
pages of WVCS employees and their
families (parents and children) and
personal details about Ms. Ma’s family.
Petitioner’s entire presentation
submitted to City Council on
September 20, 2016, was included as
Exhibit “H” at the continued hearing of
December 6, 2016.
395
City finding on Municipal Code Section 2.08.096(b)(4): The City provided fair hearings.
The Petitioner has not provided any proof of facts which demonstrate that the City Council
failed to provide a fair hearing.
Petition Response and Findings of Fact
A. The Mayor limited presentation time to
the City Council on September 20, 2016,
after the matter was postponed on
September 6, 2016. A total of twenty
minutes was granted but more time
was requested but denied. The
evidence cited above in section 2 had to
be removed from the presentation. The
Mayor frequently has provided much
more time to individuals regarding
matters much less pivotal to residents'
quality of life in Cupertino. The fair and
unbiased operation of the City's Below
Market Rate Housing Program is a
serious matter. Anyone who appeals a
determination made by consultants of
the City or City Staff regarding
participation in the BMR program
should be afforded sufficient time to
present all evidence in support of their
appeal.
A. Council provided a fair hearing.
Petitioner was given a total of 20
minutes for her oral presentation, and
her entire power point presentation was
provided and available to Council.
City finding on Municipal Code Section 2.08.096(b)(5): The City proceeded in a manner
required by law, its decision was supported by findings of fact, and the decision was
supported by the facts. The Petitioner has not provided any proof of facts that demonstrate
the Council abused its discretion by not preceding in a manner required by law, the
Council’s decision and its findings were fully supported by the evidence.
Petition Response and Findings of Fact
A. Explain facts and how those facts
demonstrate abuse of discretion
related to items (a): The Petitioner
notes that Michelle Ma and the
Petitioner had essentially equivalent
salary of about $96,000 per year. She
also notes that Ms. Ma's household
income was about $99,550 or $2,500
below the limit of $102,050. She
A. Petitioner’s position is that Ms. Ma’s
income was miscalculated. This
allegation is not only irrelevant, it also
does not support a claim that the City
did not proceed in a manner required
by law for Petitioner’s appeal.
Moreover, Ms. Ma’s income calculation
was reviewed by the City’s outside
Counsel, and it was determined she did
396
further states that this determination
by Goldfarb & Lipman was greater
than the household income
determined by WVCS. She notes that
the City Council is required by
Section 2.6 of Policy and Procedures
Manual for Administering Deed
Restricted Affordable Housing Units
to take action when a purchaser
intentionally makes false statements
or misrepresents facts in order to
appear eligible. Furthermore,
Marissa Ma is not Michelle Ma's
dependent. Determining their
household income should include an
examination of Marissa's cost of
living and the source for covering
these costs. Because the source is not
Marissa, nor Michelle, the source is
outside the household and must be
included in the household income.
B. Explain facts and how those facts
demonstrate abuse of discretion
related to items (c): The City Council
affirmed the Housing Commission's
recommendation to find the
Petitioner’s family ineligible to
purchase the BMR unit because it
upheld the statement by Ms.
Venkatraman that the Petitioner’s
income was $103,648.14, and
therefore over the limit. However the
facts presented by the Petitioner on
September 20, 2016 show this is not
income. Nor was it anticipated to be
income, based on the evidence
provided at the time of application.
Pursuant to paragraph C of section
2.08.096, the Petitioner requests that
the City refund all of the
reconsideration fee. The
reconsideration is not related to any
qualify for the unit.
B. The evidence presented to the
Housing Commission and the City
Council, fully support the City
Council’s finding that Petitioner was
not eligible to purchase a BMR unit.
The Council’s finding was based upon
Housing and Urban Development
(HUD) standards in the City’s Below
Market Rate manual, a review of the
paychecks, and bonus income.
397
income producing opportunity.
Rather it is related to protecting my
rights as an applicant to a City
program for safe and affordable
housing in Cupertino.
398
399
400
401
RECONSIDERATION PETI TION attachment
Item 5
LAn offer of relevant evidence which was improperly excluded at any prior city hearing.
Explain relevant evidence and how, when it was excluded at a prior hearing: The evidence revealing
the existence of a relationship between Ms Nguyen and Ms Ma, that in October, 2015 appeared professionally distant
the transformation of the relationship in January, 2016, as Ms Ma exhibited a much greater interest in Ms Nguyen's life and family and began to request special consideration and invitations from Ms Nguyen
the development, in February and March, 2016, of a relationship between the parents of Ms Ma and Ms Nguyen, and vice versa
the existence of a relationship between Ms Ma's adult sister, who is not Ms Ma's dependent, and Ms Nguyen's supervisor, Ms Venkatraman
Marissa Ma's status as a high school senior in December 2012 was disallowed for presentation on 11-Aug-2016, by the Housing Commission Chair. Mr Barnett forced me to stop my presentation when I reached this evidence. I had to disconnect my laptop from the projector and advance to my closing slides instead of showing the evidence to the Housing Commission. The evidence has been provided to the City Clerk and is not reattached here. The City Clerk has failed to include the evidence in the relevant documents attached to my Appeal as an Agenda item at City Council meetings.
£Proof of facts which demonstrate that the City Council failed to provide a fair hearing.
Explain facts and how those facts demonstrate failure to provide a fair hearing: The Mayor limited my time to present to the City Council on 20-Sep-2016, after the matter was postponed on 6-Sep-2016. I indicated that ten minutes was insufficient, and I was provided an additional (approximately) ten minutes. This was still insufficient, as I had removed the evidence cited above into a separate presentation, and I was not provided time to begin that presentation. The Mayor frequently has provided much more time to individuals regarding matters much less pivotal toresidents' quality of life in Cupertino. The fair and unbiased operation of the City's Below Market Rate Housing Program is a serious matter. Anyone who appeals a determination made by consultants of the City or City Staff regarding participation in the BM R program should be afforded sufficient time to present all evidence in support of their appeal.
£Proof of facts which demonstrate that the City Council abused its discretion by:
x.(a) Not preceding in a manner required by law; and/or
X (c) Rendering a decision in which the findings of fact were not supported by the evidence.
Explain facts and how those facts demonstrate abuse of discretion related to items (a): It was noted that Michelle Ma and I had essentially equivalent salary of about $96,000 per year. It was also noted that Ms Ma's household income was about $2,500 below the limit of $102,050. Therefore, the household income was about $99,550, and it was further stated that this determination by Goldfarb & Lipman was greater than the household income determined by WVCS. The City Council is
1 of 2 Reconsideration Petition Kimberly Sandstrom
402
403
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
WHEREAS, Ms. Sandstrom has completed three levels of appeal at WVCS; and
404
Resolution No. 16-101
Page 2
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.
2
405
Resolution No. 16-101
Page 3
PASS ED AND ADOPTED this 6th day of December, 2016, at a meeting of the
City Council of the City of Cupertino by the following vote:
Vote Members of the City Council
AYES: Chang, Vaidhyanathan, Paul, Sinks, Wong
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
Grace Schmidt, City Clerk
3
406
Housing Commission
June 23, 2016
Cupertino, CA 95014
(408) 777-3308
APPROVED MINUTES OF THE SPECIAL MEETING OF
THE HOUSING COMMISSION HELD ON June 23, 2016
ROLL CALL
Commission Members present: Harvey Barnett, Chairperson
Nina Daruwalla, Commissioner
Sue Bose, Commissioner
Commission Members absent: Rajeev Raman, Vice Chair
Shirley Chu, Commissioner
Staff present: Gian Martire, Associate Planner
Benjamin Fu, Assistant Director of Community Development
Barbara Kautz, Attorney, Goldfarb & Lipman, LLP
Elizabeth Klueck, Attorney, Goldfarb & Lipman, LLP
APPROVAL OF MINUTES:
May 12, 2016
Minutes of the May 12, 2016 Housing Commission meeting were approved as written
ORAL COMMUNICATION:
Rebecca Burn from the Housing Voices Coalition addressed the Commission regarding the affordable
housing needs for developmentally disabled adults. She asked that the Housing Commission consider
setting aside 50 Very-Low Income BMR units to be available to those citizens.
POSTPONEMENTS/REMOVAL FROM CALENDAR:
None
WRITTEN COMMUNICATIONS:
None
CONSENT CALENDAR:
None
PUBLIC HEARING:
1. Subject: Appeal of Kimberly Sandstrom regarding eligibility to purchase a BMR Unit
Recommended Action: Hear the appeal and move to recommend to the City Council that it
affirm the determination that Kimberly Sandstrom was ineligible to purchase a BMR home
because her income exceeds the established income limit
Tentative City Council hearing date August 2, 2016.
Barbara Kautz, Goldfarb & Lipman, explained that they had been asked to serve as “staff” to the
Commission on this matter in the absence of the City’s Housing Planner. She briefed the Commission on
the agenda item. Ms. Sandstrom had reached the top of the eligibility list for a BMR Unit and when the
income calculation was done, it was determined that her income exceeded the limit by around $1600.00.
407
2 Housing Commission
June 23, 2016
She then filed several appeals of that determination to West Valley Community Services and then to the
Housing Commission. The Housing Commission will make a recommendation to the City Council. Ms.
Sandstrom’s assertion is that a bonus she received should not be added to her income. Ms. Sandstrom
has presented that her bonus is a variable amount and the one she anticipates this year will be much
lower than last year’s. It was a small overage amount and it is disappointing, but after a review of the
eligibility documents and the current regulations and the appeal paperwork from West Valley
Community Services, Staff is making the recommendation that the Housing Commission ask the City
Council to affirm the decision to deny eligibility because her income exceeded the maximum limit.
Commissioner Daruwalla stated that she felt that the bonus shouldn’t been counted. There was a couple
of days between issued paychecks and the bonus is not a regular payment. The decision makers at West
Valley Community Services should try to be very careful in these situations, as their decisions are
literally affecting someone’s life.
Barabra Kautz, stated that they too felt that way, but that in looking at the regulations more closely, the
issue is what total income was received last year. An applicant’s tax form should be the decider not the
paystubs. They will be requesting changes to the BMR Manual to better define total income.
Commissioner Bose asked if Ms. Sandstrom was still on the eligibility list. Christine Nguyen, from West
Valley Community Services (WVCS) stated that she was still on the list, but there was no way to tell how
long it would be before another unit became available. Ms. Sandstrom also explained that once the new
applications are received, a random draw is done which determines the place an applicant is on the list.
So she may be first one the list right now but in November, she could be last.
Ms. Kimberly Sandstrom, the appellant, addressed the Commission. She provided a slide show
presentation to better illuminate the details of her appeal. There are three main reasons for her appeal; 1)
The program provides disparate treatment for older workers. She feels that older workers who still fall
below the income level should be awarded some additional eligible points in that that they may make a
little more, but have less career years left for earning; 2) There is a conflict of interest. WVCS shouldn’t be
able to determine eligibility and grant approvals to its own employees. She was denied the unit and then
a member of Staff at WVCS was approved and bought the unit. And further, due process was not
afforded as the unit was sold before the conclusion of her appeal; 3) There are problems with the BMR
Manual. As stated by City Staff, gray areas exist concerning the definition of total income and the
approval authority within WVCS. She would like to have a second meeting so that Staff will have a
chance to compare other cities programs and other State and Federal requirements so that Standard
Operating Procedures and be adopted to make Cupertino’s program in-line with others.
Chair Barnett opened the item to Public Comments:
There were no comments from the public. The Public Comment period was closed.
Barbara Kautz stated that the sale of the unit to a WVCS staff person was a concern and asked for a copy
of Ms. Sandstrom’s slide presentation. They will be conducting an investigation into the sale transaction.
She informed Chair Barnett that their investigation may not be completed by the next hearing date. Josh
Selo from WVCS stated that they work in partnership with the City so City Staff did know that the next
person on the list was a WVCS staff member. Christine Nguyen from WVCS said that they always work
very closely with the City when administering the BMR program. Chair Barnett asked Barbara Kautz for
clarification on the availability of a recommendation by the next meeting. She said the on the discussion
points regarding changes to the policies, they could be ready, but wanted to make sure the sale
transaction was fully legal. Elizabeth Klueck addressed the Commission regarding the methodology
behind calculating income. She said Cupertino’s program calculates income by the same statutes as other
Below Market Rate Housing programs. Prior income statements (W2s, paystubs, etc.) are used to make a
determination of anticipated income for the upcoming year. Commissioner Daruwalla asked why, if Ms.
Sandstrom explained that her income level had changed, that wasn’t taken into consideration. Barbara
408
3 Housing Commission
June 23, 2016
Kautz explained that in February it would be very hard to make the assumption that there would be no
bonus issued since there had been bonuses issued in the prior years.
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.
PUBLIC MEETING:
2. Subject: Request for Funding by Charities Housing Development Corporation to assist in the
development of affordable senior housing at 19160 Stevens Creek Boulevard
Recommended Action: review the proposed funding request and adopt resolution No. 16-04,
recommending that that the City Council reserve $3,672,000 from the City’s Affordable Housing
Fund to assist in the development of affordable senior housing at 19160 Stevens Creek Boulevard.
Tentative City Council hearing date July 5, 2016.
Barbara Kautz let the Commission know that the City had received a request for a loan from the
Charities Housing Corporation (CHC) for 3.7 million to build low and very low senior income housing
units at 19160 Stevens Creek Boulevard. The City approved that loan request. The item in the agenda is
just to ensure that the City’s loan, as promised, is placed in reserve until the project has received all of
the Planning Department approvals. The property is currently being purchased, with the sale expected
to close shortly. CHC has other funding sources to draw upon until they are ready to execute the loa n
agreement with the City. Cathy Robinson from CHC addressed the Commission. She stated that the
CHC will be proposing to build a small, 19 unit, senior housing development on the property. She didn’t
have all the details, but they are wanting to design a project that meets all the current General Plan
requirements with our any variances or other exceptions so that the project can be approved, built and
occupied quickly. They were also requesting that some minor changes be made to the loan
disbursements requirements because the 2 year caveat to have construction finished is a very short
timeline. They will do their best to meet the deadlines, but would like more time written into the
contract. CHC would also like the default clause emended such that if the project didn’t move forward,
the City would take ownership of the land and forgive its own $1 million loan and the $1 million
permanent loan. The attorneys involved have agreed that this change in the clause would be agreeable.
Chair Barnett opened the item to Public Comments:
A resident spoke in favor of senior housing on the site, but wondered what square footage the units
would be and how many parking spaces would there be. She wanted to make sure the project was the
right size for the very small lot.
Chair Barnett closed the Public Comments period.
Staff member Fu explained that the item on the agenda is just for funding assurances. A development
application has not been submitted.
Chair Barnett asked for a motion from the Commission to approve the request per the draft resolution.
MOTION: Commissioner Daruwalla moved to approve Resolution No. 16-04
SECOND: Commissioner Bose
ABSENT: none
ABSTAIN: none
VOTE: 3-0-0
409
4 Housing Commission
June 23, 2016
STAFF AND COMMISSION REPORTS:
None
OLD BUSINESS:
None
NEW BUSINESS:
3. Subject: Proposed Amendments to Policy and Procedures Manual for Administering Deed-
Restricted Affordable Housing Units
Recommended Action: review the proposed amendments and adopt resolution No. 16-03,
recommending that that the City Council adopt the proposed amendments to the Policy and
Procedures Manual.
Tentative City Council hearing date August 2, 2016.
Barbara Kautz addressed the Commission on the three areas suggested for change in the Manual. The
first recommendation concerned how income is calculated. In light of the previous item, she suggested
that the Commission wait on discussions of this change. The second recommended action is to change
Section 2.2, the Conflict of Interest Regulations. Staff recommends that this section be clarified and
expanded to include exclusions for consultants and anyone else who has decision or policy making
authority who work on the Housing Programs. These persons would be ineligible to apply for a BMR
unit. This recommended change is in keeping with the State and Federal Conflict of Interest policies. The
third recommendation is to Section 5, the Appeal Process. Staff recommends that this section be
amended to reflect that an appeal must be heard and a decision rendered within the 90 days that the City
has to sell the unit. This would streamline the appeal to be heard by WVCS and then to a separate,
outside (unbiased) Hearing officer. This Hearing Officer would be the final deciding authority. The unit
in question could not be sold until after the appeal had been decided.
Chair Barnett opened the item to Public Comments: There were no comments. The Public Comment
period was closed.
Staff requested that the Commission make a recommendation that the City Council approve changes to
Section 2.2 and Section 5 of the Policy and Procedures Manual.
MOTION: Commissioner Barnett moved to approve Resolution No. 16-03 with the minor typographical
and wording changes as suggested by Commissioner Bose
SECOND: Commissioner Daruwalla
ABSENT: none
ABSTAIN: none
VOTE: 3-0-0
410
5 Housing Commission
June 23, 2016
ADJOURNMENT:
The meeting was adjourned to next regular Housing Commission meeting on July 14, 2016, 9:00 a.m.
Respectfully submitted:
/s/Beth Ebben
Beth Ebben
Administrative Assistant
411
Housing Commission
August 11, 2016
Cupertino, CA 95014
(408) 777-3308
APPROVED MINUTES OF THE REGULAR MEETING OF
THE HOUSING COMMISSION HELD ON August 11, 2016
ROLL CALL
Commission Members present: Harvey Barnett, Chairperson
Nina Daruwalla, Commissioner
Rajeev Raman, Vice Chair
Sue Bose, Commissioner (arrived late)
Commission Members absent: Shirley Chu, Commissioner
Staff present: Benjamin Fu, Assistant Director of Community Development
Barbara Kautz, Attorney, Goldfarb & Lipman, LLP
Elizabeth Klueck, Attorney, Goldfarb & Lipman, LLP
APPROVAL OF MINUTES:
1. June 23, 2016
Minutes of the June 23, 2016 Housing Commission meeting were approved as written
ORAL COMMUNICATION:
None
POSTPONEMENTS/REMOVAL FROM CALENDAR:
None
WRITTEN COMMUNICATIONS:
None
CONSENT CALENDAR:
None
PUBLIC HEARING:
2. Subject: Appeal of Kimberly Sandstrom regarding eligibility to purchase a BMR Unit
Recommended Action: Hear the appeal and move to recommend to the City Council that it
affirm the determination that Kimberly Sandstrom was ineligible to purchase a BMR home
because her income exceeds the established income limit
Continued from the June 23, 2016 meeting
Tentative City Council hearing date September 6, 2016.
Barbara Kautz, Goldfarb & Lipman, explained that they had been asked to serve as “staff” to the
Commission on this matter in the absence of the City’s Housing Planner. She reminded the Commission
of the discussion from the last meeting. Ms. Sandstrom raised a few questions regarding how other cities
calculated income. The results of that research is to be presented today. Elizabeth Klueck, Attorney,
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2 Housing Commission
August 11, 2016
Goldfarb & Lipman, LLP, directed the Commissioners to information from the agenda packet. The
income calculations used are in line with the way other cities and agencies do their calculations. Income
from the previous year is used to project into the upcoming year. This methodology comes from Federal
Law and Statutes and the Home Technical Guide.
Income from each pay period was multiplied by 24 pay periods each for a total of $96,012.80.
Bonuses included as income (per 24 CFR 5.609b of the BMR Manual).
Bonuses totaled $7635.34.
Total annual income of $103,648.14.
Even if the amount of bonuses for the last 3 years had been averaged, Ms. Sandstrom’s income would
still have exceeded the moderate income level limit (102,050.00) for a two be droom unit. Christine
Nguyen of West Valley Community Services pointed out that the calculations are by 26 and not 24.
Barbara Kautz confirmed, but said that the income amount was the same. She also mentioned that from
the last meeting, the City was criticized for calculating “anticipated” income, but said that all cities do
that. The only way to feel comfortable with forecasting upcoming wages was to look a past wages.
However, she suggested that with variable income types (bonuses and commissions) that another
methodology could be devised or if someone could demonstrate a significant reduction in pay this year
from the past year (loss of job, demotion, etc.) allowances should be made for those situations.
Commissioner Daruwalla commented that the statements an applicant makes as part of an application
should be considered too. Ms. Sandstrom indicated her bonus this year was a onetime thing.
Commissioner Raman pointed out that an applicant might also not disclose an upcoming income
increase. Commissioner Bose asked if the sale of stock was always counted as income. Elizabeth Klueck
replied that it was. Chair Barnett reminded the Commissioners that they needed to make a
recommendation based upon what the rules are today and not on proposed changes to the BMT manual.
Barbara Kautz concluded the presentation by stating that the City followed established policies and
practices in calculating Ms. Sandstrom’s income and that her income was determined to be over the
limit.
The appellant, Kimberly Sandstrom, addressed the Commissioners with a presentation. She provided a
brief summary of dates of her appeal starting in February and continuing through to the meeting today
and it is still not finished. She expressed dismay in how long the process has taken to come to the same,
original conclusion. She wanted to go over what she thought should be counted as her income, she
wanted answers to the questions she posed to the Commissioners at the last meeting and about the
conflict of interest as that was now included as part of her appeal – it wasn’t at first because she didn’t
know it existed, but once she did, she feels that it is also part of her appeal.
She doesn’t feel that the inclusion of the stock she sold in 2015 be added to her estimated 2016 income. If
she were to sell stock today she would have a net loss due to the reduction in the stock’s value. She has
documentation showing that her expected amounts of bonus income in 2016 will be well below what she
received in 2015. She stated that it is not reasonable to include onetime earnings from 2015 as anticipated
income for 2016. She cannot count on bonuses as wages as she has no control about how much, if any,
she will receive. By making the adjustments based on the documentation she provided, she would be
under the income limit.
She wanted to know if the Housing Commission had received answers to her questions posed last time
regarding current and present staff members of the City and of West Valley Community Services in BMR
units. Barbara Kautz said that these questions were passed along to the persons conducting the
investigation into the conflict of interest ant that those answers would be forthcoming once the
investigation concluded. She quoted a passage from Prohibition on Self Dealing (Section 10.90). Which
outlines conflict of interest policy by/for public officials. Barbara Kautz stated that this Section is
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August 11, 2016
normally applied to City Council members and other Governing Officers such that they may not enter
into a contract that financially benefits them. As an example, if a City Council member is an architect, he
cannot be awarded a contract for architectural services even if he recuses himself from voting on the
project. She said that the investigation was actively looking into the conflict of interest question which
includes potential violations to Section 10.90. The Commissioners reiterated that they would like to
review the results of the investigation once it is completed and before it is presented to the City Council
so that they can be prepared and participate at the Council meeting.
Commissioner Bose asked if Barbara knew how long it took to find the next applicant and get them
approved. She seemed to feel that it all happened very fast. Barbara Kautz did agree that it happened
fast, but she had not been involved in any of those discussions. She stated that the Council did agree to
amend the appeal process to make it more streamlined. An appeal would be heard by the Manager of
WVCS and then by the City Council. Not as a way to bypass the Housing Commission, but to try to get
an appeal heard and resolved within 60 days.
Ms. Sandstrom continued with her presentation, but was asked by Chair Barnett to discontinue her
discussion about the purchaser of the unit of which she had been deemed ineligible for. The purchaser
was a former WVCS employee so Ms. Sandstrom wanted to demonstrate her argument that a conflict of
interest did exist. Chair Barnett asked her to confine her presentation to the matter before them today –
the income eligibility. Commissioner Raman said that there are two factors in the appeal, the income
calculation and the conflict of interest. The Housing Commission could make a recommendation
regarding the income calculations but could not make a recommendation about whether or not a conflict
of interest occurred. Ms. Sandstrom was encouraged to give her research information to Goldfarb &
Lipman, LLP, so it could be reviewed as part of their investigation into those claims. Barbara Kautz
clarified that the City Attorney’s office would be making the determination regarding the conflict of
interest and that the City Council would be making the determination regarding the income eligibility.
Ms. Sandstrom then read from the City’s Commissioner’s Handbook as it relates to the obligations of the
Housing Commissioners. She asked Housing Commissioners to reject Staff’s finding that her income was
over the limit threshold for a two bedroom unit, she wanted them to ask the City Council to reverse
what she felt was an illegal sale of the unit and she asked that the Commissioners work to make the
process better for herself and everyone in the program.
Commissioner Daruwalla asked again to have a chance to review the investigative report. Commissioner
Bose stated that she didn’t think that the Housing Commission had the authority to un-do a sale.
Chair Barnett opened the item for Public Comments.
A resident, James Elgrin, pointed out that the HUD guidelines call for exceptions when documents have
been presented to show that current income status/circumstances has changed. He felt that WVCS
should have made allowances and further that the person making the initial determination, was in
conflict.
Chair Barnett closed the item for Public Comments.
Barbara Kautz said that as part of reviewing Ms Sandstrom’s appeal, her application and documentation
were reviewed and allowances were made for the change in her income status. She explained to the
Commissioners that her firm received this information in February and they had to make assumptions
based on the flexible economy and variable nature of bonuses, especially ones tied to stock performance.
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MOTION: Commissioner Raman moved to recommend that the City Council deny the appeal and affirm
the determination that Ms. Sandstrom did not meet the income eligibility requirements to
purchase a BMR unit
SECOND: Commissioner Bose
ABSENT: none
ABSTAIN: none
VOTE: 3-1-0 (Daruwalla, no)
PUBLIC MEETING:
None
STAFF AND COMMISSION REPORTS:
None
OLD BUSINESS:
3. Subject: Proposed Amendments to Policy and Procedures Manual for Administering Deed-
Restricted Affordable Housing Units
Recommended Action: review the proposed amendments and adopt resolution No. 16-04,
recommending that that the City Council adopt the proposed amendments to the Policy and
Procedures Manual.
Tentative City Council hearing date September 6, 2016.
Barbara Kautz addressed the Commission regarding the third area for suggested changes - income
calculations, Section 2.4.1. On August 2nd, the City Council approved recommendations to the BMR
Manual for section 2.2, Conflict of Interest and Section 5, the Appeal Process. Staff’s recommendation is
to revise the way applicant income is calculated and other changes to the eligibility list. Currently new
applications are received every year in October, reviewed in December and wait lists created in January.
Persons already on the wait list must also reapply every year to ensure that they still meet all the
requirements. Staff proposes that new persons on the wait list be placed at the bottom, so that people
already there, won’t lose their place. Staff is also recommending that persons who work in any public
agency receive one additional preference point. And Staff is recommending that the City or WVCS make
changes to the way the program is marketed to the public. Other changes have not been suggested
because they may violate various other Fair Housing Laws such as preferences based on age, head of
household or longevity in the Community. Staff is proposing that the income calculation methodology
be clarified and be calculated using the Home Technical Guide. The Technical Guide is very clear and
has examples. This clarification also calls for consistency with the documentation to be used for
determining income. Everyone will need to submit the same types of income verification documentation,
which is not currently the practice. Commissioner Raman suggested that in instances where there is a
projected decrease in income and the applicant is seeking an exception, the applicant must show that this
decrease is for the whole year. Chair Barnett suggest that the preference points be changed to give 2
points to City and public school employees since it has become very hard to recruit and retain these
workers due to the high cost of housing in the area.
Chair Barnett opened the item for Public Comments.
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August 11, 2016
No comments were received. Chair Barnett closed the item for Public Comments.
MOTION: Chair Barnett moved to approve Resolution No. 16-04 with the addition of requiring proof of
a projected decrease in income be year long
SECOND: Commissioner Raman
ABSENT: none
ABSTAIN: none
VOTE: 3-0-1 (Bose Daruwalla absent)
NEW BUSINESS:
None
ADJOURNMENT:
• The meeting was adjourned to next regular Housing Commission meeting on September 8, 2016, 9:00
a.m.
Respectfully submitted:
/s/Beth Ebben
Beth Ebben
Administrative Assistant
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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.)
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
430
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
431
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.
432
3
PASSED AND ADOPTED this 6th day of December, 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
433
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
434
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
435
Exhibit D
D-1
Excerpts Regarding Income Calculation - Policy and Procedures Manual for
Administering Deed Restricted Affordable Housing Units
436
Exhibit E
E-1
Referenced Regulations (24 CFR 5.609(b) and (c))
437
Exhibit E
E-2
438
Exhibit E
E-3
439
Exhibit E
E-4
440
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.
441
Exhibit F
F-2
442
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516
City Council
SEPTEMBER 20, 2016
517
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
518
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
519
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
520
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
521
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)
522
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
523
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
524
Excerpt from
California Law
Governing
Conflict of
Interest, by
Orange County
Department of
Education, June,
2014
525
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
526
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 527
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.
528
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”
529
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
530
Handout
presented
by Ms Klueck
at 11-Aug
Housing
Commission
meeting has
math error
and bonus
error
531
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
532
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
533
My latest paystub
534
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 535
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
536
http://www.hcd.ca.gov/housing-policy-development/housing-resource-
center/reports/state/incnote.html 537
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
538
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
539
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
540
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
541
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.
542
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
543
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-1940 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:9/1/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: Order the abatement of a public nuisance (weeds) pursuant to provisions of Ordinance No.
724 and Resolution No. 16-136
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Draft Resolution
B - 2017 Weed Abatement Program Commencement Report
C - Notice to Destroy Weeds and Program Schedule
D - Letter to Property Owners
E - Approved Resolution No. 16-136
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Order the abatement of a public nuisance (weeds) pursuant to provisions of Ordinance
No. 724 and Resolution No. 16-136
Note objections and adopt Resolution No. 17-017 ordering abatement of a public nuisance
(weeds) pursuant to provisions of Ordinance No. 724 and Resolution No. 16-136
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
powered by Legistar™544
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: February 7, 2016
Subject
Order the abatement of a public nuisance (weeds) pursuant to provisions of Ordinance
No. 724 and Resolution No. 16-136.
Recommended Action
Note objections and adopt the draft resolution ordering abatement of a public nuisance
(weeds) pursuant to provisions of Ordinance No. 724 and Resolution No. 16-136.
Discussion
Chapter 9.08 of the Cupertino Municipal Code requires property owners to remove or
destroy weeds on their property for fire protection. The weed abatement process is in
place to notify the property owners of this responsibility, authorize the County to
remove the weeds if the property owner doesn’t, and allow the County to recover the
costs of abatement.
The process consists of eight steps that begin in November and go through August of
each year. At this time, the process is at Step 4.
1. County prepares a list of all properties that have been non-compliant in
removing weeds in the last three years and provides that list to the City (Nov).
2. City Council adopts a resolution declaring weeds a nuisance and setting a
hearing date to hear objections by property owners to having their name on the
list (Nov-Dec).
3. County sends notice to the property owners on the list notifying them of the
hearing date and explaining that they must remove weeds by the abatement
deadline of April 30 or it will be done for them, and the cost of the abatement
plus administrative costs assessed to their property (Dec).
4. City Council holds the hearing to consider objections by property owners and
adopts a resolution ordering abatement (Jan).
545
5. County sends a courtesy letter to property owners on the list notifying them
again of the abatement deadline and noting that they will work with the
property owner to be sure the weeds are removed (Jan).
6. After April 30, the properties are inspected by the County to verify that weeds
were removed and proceeds with abatement if the inspection fails. County
makes a list of all costs associated with the abatement and provides that list to
the City (June-July).
7. City notifies the property owners on the assessment list notifying them of the
hearing date. (July-Aug).
8. City Council holds a hearing, notes any disputes, and adopts a resolution putting
a lien assessment on the properties to allow the County to recover the cost of
weed abatement (July-Aug).
Fiscal Impact
Any fees waived by the Council will be billed to the City by the County to cover their
cost of servicing the property.
_____________________________________
Prepared by: Grace Schmidt, City Clerk
Approved for Submission by: David Brandt, City Manager
Attachments:
A - Draft Resolution
B - 2017 Weed Abatement Program Commencement Report
C - Notice to Destroy Weeds and Program Schedule
D - Letter to Property Owners
E - Approved Resolution No. 16-136
546
RESOLUTION NO. 17-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ORDERING ABATEMENT OF PUBLIC NUISANCE PURSUANT TO
PROVISIONS OF CUPERTINO MUNICIPAL CODE CHAPTER 9.08 AND
RESOLUTION NO. 16-136
WHEREAS, the City Council has declared that the growth of weeds, the
accumulation of garden refuse, cuttings and other combustible trash upon the
private properties as described in Resolution No. 16-136 adopted December 20,
2016, to be a public nuisance; and
WHEREAS, after due notice, a hearing thereon was held at the regular
meeting of the City Council on February 7, 2017; and
WHEREAS, from the evidence presented, both oral and written, it appears
to be in the best interests of the City to acquire jurisdiction over and abate said
nuisance.
NOW, THEREFORE, BE IT RESOLVED:
1. That the Agricultural Commissioner is hereby ordered to abate
such nuisance or cause the same to be abated by having the weeds referred to
destroyed or removed by cutting, discing, chemical spraying or any other
method determined by him; that all debris, whether in piles or scattered, be
hauled away;
2. That the Agricultural Commissioner and his deputies, assistants,
employees, contracting agents or other representatives shall have express
authorization to enter upon said private properties for the purpose of causing
said public nuisance to be abated; and
3. That any affected property owners shall have the right to destroy or
remove such weeds or debris himself or herself or have the same destroyed or
removed at his/her own expense provided that such destruction or removal shall
have been completed prior to the arrival of the Agricultural Commissioner or his
authorized representative to destroy or remove them by the Parcel Abatement
Deadline of April 30, 2017.
BE IT FURTHER RESOLVED:
547
Resolution No. 17-
Page 2
1. That the Agricultural Commissioner shall keep account of abating
said nuisance and embody such account in a report and assessment list to the
City Council, which shall be filed with the City Clerk.
2. Said reports of costs, hearing and collection procedures involved
shall be provided as stated in Chapter 9.08.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino on the 7th day of February 2017, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________ ___________________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor
City of Cupertino
548
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54
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5
(over)
TRA 13 Notice to
Destroy
Weeds
NOTICE IS HEREBY GIVEN that on November 15, 2016 pursuant to the provisions of Section
9.08 of the Cupertino Municipal Code, the City Council passed a resolution declaring that all weeds
growing upon any private property or in any public street or alley, as defined in Section 9.08.010 of
the Cupertino Municipal Code constitute a public nuisance, which nuisance must be abated by the
destruction or removal thereof.
NOTICE IS FURTHER GIVEN that property owners shall without delay, remove all such weeds
from their property and the abutting half of the street in front and alleys, if any, behind such property
and between the lot lines thereof as extended, or such weeds will be destroyed or removed and such
nuisance abated by the County Agricultural Commissioner, in which case the cost of such
destruction or removal will, including but not limited to administration costs, be assessed upon the
lots and lands from which, or from the front or rear of which, such weeds shall have been destroyed
or removed and such cost will constitute a lien upon such lots or lands until paid and will be
collected upon the next tax roll upon which general municipal taxes are collected. All property
owners having any objections to the proposed destruction or removal of such weeds are hereby
notified to attend a meeting of said City to be held in the Council Chambers of City Hall, located at
10300 Torre Ave., Cupertino, California, on Tuesday, February 7, 2017 at 6:45 p.m., or as soon
thereafter as the matter can be heard, when their objections will be heard and given due
consideration.
The language and format for this notice is required by California Health and Safety Code Sections
14891 Et. Seq.
556
(over)
CITY OF CUPERTINO WEED ABATEMENT PROGRAM SCHEDULE
February 7, 2017 Public hearing to consider objections to Abatement List.
April 30, 2017 PARCEL ABATEMENT DEADLINE
Parcel must be free from hazardous vegetation by this date
or Inspector will order abatement.
July/August 2017 Assessment Hearing date to be scheduled by City Council.
2017 COUNTY WEED ABATEMENT FEES
Properties in the Weed Abatement Program, you will be responsible for an annual inspection fee of
$60.00 per parcel.
Please be advised that the property owner of any parcel found to be non-compliant on or after
the March 1st deadline will be charged an inspection fee of $485.00 and the property will be
scheduled for abatement by the County contractor. If you complete the abatement work
before the County contractor performs the abatement, you will not incur further charges.
Should the abatement work be performed by a County contractor, you will be assessed the
contractor’s charges plus a County administrative fee of $434.00 per parcel.
2017 COUNTY CONTRACTOR’S WEED ABATEMENT PRICE LIST
A) Disc Work**
PARCEL SIZE: 1st Disc + 2nd Disc = Total Discs
0-12,500 sq.ft. $202.86 $136.00 $338.86
12,501sq.ft.- 43,560sq.ft. $235.72 $170.00 $405.72
Larger than 1 Acre $100.87 $89.53 $190.40 (PER ACRE)
** It is required that parcels be disced twice a year. The cost for the first discing is higher due to
additional work normally required during the first discing.
B) HANDWORK $3.38 PER 100 sqft
C) FLAIL 6 Foot Mower $4.50 PER 1000 sqft
MOWING 12 Foot Mower $3.50 PER 1000 sqft
D) LOADER WORK $110.50 PER HOUR
E) DUMP TRUCK $102.00 PER HOUR
F) BRUSH WORK $3.38 PER 100 sqft
G) Debris removal $38.86 PER 1000sqft
G) DUMP FEE 100%
Added to orders with debris removal at 100% of the dump site charge.
*Please note this program does not offer herbicide application as a method of abatement.
557
County of Santa Clara
Depa1iment of Agriculture and Environmental Management
Weed Abatement Division
1553 Berger Drive
Building 1
San Jose, CA 95112
(408) 282-3145
Fax ( 408) 286-2460
November 21, 2016
IMPORTANT NOTICE TO ABATE WEEDS
Dear Property Owner:
To protect your property and the surrounding area from possible fire, your jurisdiction contracts with the
County of Santa Clara to operate a Weed Abatement Program. The County is providing this notice and
information packet to you as part of the Program. Please read the information carefully and call us for
clarification or additional information.
Your jurisdiction has or will adopt a resolution declaring your property as one that may contain potential
fire hazards from weeds or other debris. ln addition, your jurisdiction will be conducting a public hearing
to consider an abatement order requiring you to remove any hazardous vegetation or combustible debris.
The public hearing will be held on the date and at the place stated in the attached notice to destroy weeds.
The public hearing provides an oppo1iunity for you to raise any objections and/or concerns to the
requirement that you remove fire-hazardous vegetation and/or debris from your propetiy prior to the
deadline provided in the attached abatement schedule.
The Weed Abatement Program works in coordination with parcel owners if their property is habitat to
protected species of plants and/or animals. If you believe your parcel includes an environmentally sensitive
habitat, please check the box and explain this on the reply form to assist us in determining the best approach
to weed abatement at your property.
If: after the public hearing, the Weed Abatement Program is approved for your prope1iy, the County is
authorized by its contract with the cities and by State law to perform an inspection of your property to
determine whether the property has been cleared of hazards according to Minimum Fire Safety Standards
(see enclosed brochure). Inspections will begin after the abatement deadline for your jurisdiction. This
notice does not relieve you of your responsibility to complete the necessary work prior to the deadline for
your jurisdiction.
As a result of the parcel being included in the Weed Abatement Monitoring program you will be responsible
for an annual fee of $60.00 to cover the cost of the compliance inspection.
If you fail to complete the abatement work prior to the County inspection of your property, you will be
responsible for an inspection fee of $485 per parcel, and your property will be scheduled for abatement by
the County contractor. If you complete the abatement work before the County contractor, you will not
incur further charges. Should the abatement work be completed by a County contractor, you will be
assessed the contractor's charges plus a County administrative fee of $434 per parcel.
The County will use the least costly method of abatement considering the physical characteristics of your
property and environmental concerns. Fees are detailed in the attached price list. The total amount will be
included as a special assessment on your property tax bill following confirmation of the charges by your
Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian
County Executive: Jeffrey V. Smith
558
jurisdiction. Notice of the date of that meeting will be posted at a location prescribed by your jurisdiction
(typically at the Civic Center) at least three days prior to the meeting.
You can avoid all costs, other than the annual fee, by completing the abatement work yourself
according to Minimum Fire Safety Standards (see enclosed brochure) prior to the abatement
deadline for your jurisdiction and maintaining the Minimum Fire Safety Standards for the duration
of fire season, which typically runs through October. Parcels will be removed from the program after
three (3) consecutive years of voluntary compliance (work completed prior to the deadline).
In preparation for this program, please complete and return the enclosed Reply Form so that we are aware
of your intentions regarding the maintenance of your property.
If you designate in your reply that you intend to abate the weeds yourself, you are expected to
complete the abatement before the deadline listed on the abatement schedule and maintain fire safe
co11ditio11s for the duration of the fire season. Responding that you intend to provide maintenance
yourself does not release you from this responsibility to have the maintenance completed before your
deadline and repeated as necessary to maintain Minimum Fire Safe Standards. County contractors
will proceed to abate hazardous vegetation as necessary after the deadline for your jurisdiction.
Enclosed you will find the following information:
'Y A Reply Form specific to your property. Please complete and return promptly.
'Y A Notice to Destroy Weeds informing you of an upcoming public meeting that you must
attend if you have any objections to the proposed removal of hazardous vegetation or debris
from your property.
'Y A Weed Abatement Program Schedule for your city and a current County price list.
'Y A Brochure about the Santa Clara County Weed Abatement Program.
Please be aware that any abatement performed by the County contractor must be in compliance with all
applicable environmental protection regulations. If your property falls within an area designated as possible
habitat for burrowing owls or any other protected species of bird or animal, the methods used to remove
vegetation may be regulated by specific laws or local ordinances.
If you are no longer the owner of the property identified by this mailing, please notify the County
immediately. If you sell your property after the date of this letter, it is your responsibility to notify the new
owner and to include the obligation to pay any abatement costs in your agreement of sale. Without taking
this action, you will be responsible for all hazard abatement charges assessed to the property.
Our goal is voluntary compliance with the Minimum Fire Safety Standards, and it is our objective to ensure
that all properties remain safe from fire. If you have any questions about your property or need on-site
advice to help you achieve compliance with the Minimum Fire Standards, please call the Santa Clara
County Weed Abatement Program at (408) 282-3145.
SQ:p~
Amy Brown, Director
Consumer and Environmental Protection Agency
559
2017 Return Reply Form
IMPORTANT: Please complete this form and mail back to the Weed
Abatement Program no later than February 15, 2017. Thank you.
WYATT DOUGLAS AND HIND
128 LOS TRANCOS CIR
PORTOLA VALLEY CA 94028
Parcel Number Site Address
503-13-117 22551 MT EDEN SARATOGA
WYATT DOUGLAS AND HIND
TRA:
Please check the box that
applies for each parcel
(see explanations below):
A B C
DOD
15-033
A I am no longer the owner of this property, and the new owner information is listed below. Please return Re.ply Form immediately.
81 intend to maintain this parcel in a mann·er consistent with the Minimum Fire Safety Standards from April 15, 2017 through the end of the
fire season (typically runs through October). All parcels on the abatement list remain subject to inspection to ascertain compliance. Non-
compliance by the deadline will result in an Inspection fee or the abatement of weeds by the County contractor and the resulting charges
added to the property tax.
C I request that the County Contractor perform weed abatement work on this parcel. Charges for this work will be added to
my property tax bill. Work may commence on or about March 12th, 2017.
Please provide any additional information such as new owners, presence of piping, irrigation, crops or other improvement.
If your property is fenced/locked, please provide instructions on how to enter the property. If you are no longer the owner
of the property identified by this mailing, please notify the County immediately. If you sell your property after December
1st ,2016, it is your responsibility to notify the new owner and to include the obligation to pay any abatement costs in your
agreement of sale. Without taking this action, you will be liable for all hazard abatement charges assessed to the property.
CJ Please check if you feel this parcel is environmentaly sensitive
( )
Signature Name (please print) Date Day time phone
560
Fold Here First
Return Address
Fold Here Second
Use Staples To Secure
Santa Clara County Weed Abatement Program
Department of Agricultural and Environmental
Management
1553 Berger Drive; Bldg. #1
San Jose, California, 95112
561
MINIMUM FIRE SAFETY STANDARDS
1. Vegetation must not exceed 6 inches in height any time after the compliance deadline.
2. Maintain grasses and weeds below 6 inches for 10 feet horizontally on both sides of all roadways, including
driveways and access routes. Roads and Driveways must maintain a clearance of 10' W by 13'6" H for all vegetation
3. Clear flammable vegetation a minimum of 30 feet around any structure, occupied or not. Ornamental vegetation
should be kept clear of dead material. Some conditions, such as slopes, may require up to a 100-foot clearance.
4. Parcels one acre or less shall be completely abated. Parcels over one acre up to five acres require 30-foot clearance
around structures and perimeter property lines. Additional 30-foot cross fuel breaks may also be required.
5. Parcels larger than five acres require 30-foot clearance around structures and perimeter property lines in addition to
30-foot cross fuel breaks as needed to separate the remaining vegetation into sections no larger than five acres.
6. Keep property clear of accumulation of combustible debris, such as trash, wood, and dead vegetation. Stacked
firewood and neatly piled yard waste is not considered to be combustible debris.
7. Keep vegetation cleared from under the eaves of houses.
8. Trim tree branches to at least 10 feet away from chimney.
9. Clear leaves, pine needles and debris from roof and gutters.
Mai ..... tain
minimum 30' clearance of brush
and combustible vegetation
around all structures . .[}
~
",_,.;
{J
Dispose
""Irim
overhanging trees
10' from chimney.
Limb large trees
around structures.
.[}
Trim
overhanging trees
10' from chimney.
Limb large trees
around structures.
M:aintain
~ Clear
leaves, twigs and other
combustible debris off
r-oof.
Clear
-4........,,. __
combustible vegetation
and debris from beneath
decks.
~
{} Clear
house number, in an emergency.
the address should be easily seen
andreadable from the street.
of trash, refuse. rubbish~ td1nmings and
other combustible debris bv havi:nq it
hauled lo local LandFill. the grasses and weeds on your property below 6". Areas of 1 acre
Fire Resistant Landscaping
or more may be completely disced, fire broken or grazed with perimeters
maintained. Please can for requirements for your particufar parcel.
The following is a partial list of fire resistant plants that you may choose to use around your home to reduce the risk of fire. Contact your local
nursery for selections appropriate to your area. All grasses, including those purportedly fire resistant, must be maintained below 6" in height.
Trees:
African Sumac
California Pepper
Shrubs:
Bearberry
Carmel Creeper
Carolina Cherry
Catalina Cherry
Escallonia
Hopseed Bush
lemonade Berry
Groundcover:
Aaron's Beard
Australian Daisy
Candytuft
Sterile Capeweed
Freeway Daisy
Rock rose (except Gum
Variety)
Fire Satetv
Through
Vegetation
Management
Santa Clara Countv
Consumer and Environmental
Protection Agency
Weed Abatement Program
1553 Berger Drive #1
San Jose, Ca 95112
Phone ( 408) 282-3145
Fax: ( 408) 286-2460
SCC. WeedAbatement@cep.sccgov.org
562
The Santa Clara County Weed
Abatement Program
The Santa Clara County Department of Agriculture and
Environmental Management and your city are working together to
protect your community from fire. We need your help. Please read
and follow the directions provided in this brochure regarding fire
prevention on your property. The purpose of the Weed Abatement
Program is to prevent fire hazards posed by vegetative growth
and the accumulation of combustible materials.
The Weed Abatement program is entirely funded from fees
charged to residents. Fees will be assessed for any property in the
program. This is to cover the cost of the compliance inspection for
the property. Properties that fail the compliance inspection will be
charged a failed inspection fee, even if the resident completes the
weed abatement. If the property requires abatement by the
County contractor, the property owner will be responsible for the
actual cost of abatement plus an administrative fee. Properties
that meet and maintain the minimum fire safety standards will not
be charged other than the annual fee.
Program staff annually inspect parcels at the beginning of the fire
season, which is typically in March or April depending on your
jurisdiction. If the parcel is not in compliance at the time of
inspection, the property owner will be charged a failed inspection
fee, and the owner will be sent a courtesy notice as a reminder to
abate the weeds. If the weeds are not abated by the property
owner, the work will be completed by the County contractor. The
property owner will pay the contractor's fees plus a County
administrative fee. All fees will be included in your property tax
bill.
our Goal Is Voluntarv compliance
Property Owner's Responsibli/ities
• Do not allow a fire hazard to exist on your property. The Minimum
Fire Safety Standards (MFSS) in this brochure give you guidelines
to follow in order to maintain your property and protect against a
fire hazard. Please contact our office if you need guidance or
have any questions regarding the requirements!
• Make arrangements to have your property maintained throughout
the year. Contractors can be found in the yellow pages. You may
choose to have the County contractor maintain your property. A
current price list is included in your packet
• Please complete and return the Reply Form provided in your
mailing packet by the date on the form. Indicate your preference
regarding performance of weed abatement services.
Program Staff Responsibilities
• Weed Abatement Inspectors will perform periodic
inspections on all parcels included in the Santa Clara
County Weed Abatement Program. Properties that fail the
compliance inspection will be charged a failed inspection
fee, even if the resident completes the weed abatement.
• Inspectors will order the County contractor to perform all
necessary abatement work on any parcel where the MFSS are
not met. An attempt will be made to give the owner a courtesy
notice prior to releasing the work order.
• The County contractor uses several methods of abatement
including discing and handwork. The property owner is free to
select whatever method they choose, provided the MFSS of all
federal, state and local laws are met.
• The Weed Abatement Program will place inspection costs and
the charges for County contractor services plus a County
administrative fee on the property owner's tax bill during the
next fiscal year.
Burrowing Owls
These small owls nest in abandoned ground squirrel
burrows. Discing collapses the burrows and kills the young.
These owls are listed as a state Species of Special Concern
and are protected by the federal Migratory Bird Treaty Act. If
you suspect burrowing owls on your property you must use
another form of weed abatement such as mowing or weed-
eating. If you request the County perform abatement
services, please notify program staff or your City if burrowing
owls are known to exist on vour orooertv.
Frequently Asked Questions
Q. Why have I received an Abatement Notice?
A. Typically, a property is placed on the program if a Weed
Abatement Inspector identified a potential fire hazard on the property.
Fire Departments and other agencies also submit complaints to the
Weed Abatement Program.
Q. What is required of me now that I am in the Program?
A. All property owners are required to maintain their property free of
fire hazards throughout the year.
Q. The grasses planted on my property are fire resistant. Are
they exempt from the Weed Abatement program?
A. No. Even grasses that possess some fire resistant qualities are not
fire proof, and they can add fuel to any site that is subject to a fire.
Additionally, fire resistant grasses are rarely found in a pure,
homogenous stand but rather are usually found to occur mixed with
other common introduced annual grasses that are highly flammable
and hazardous in a fire event. Finally, many grasses occur in Santa
Clara County and species identification is difficult in the field,
especially after the spring when the reproductive portions required for
identification have dried and dispersed. Weed Abatement Inspectors
can only focus on the presence of grasses and weeds on your
property and the Minimum Fire Safety Standards, and not on grass
species identification. Therefore, all grasses are required to be below
6 inches in height.
Q. What is the SC County Weed Abatement Program?
A. This is a monitoring program and our primary objective is
voluntary compliance. See the first two paragraphs of this brochure
for further soecifics.
More FAQ:
Q. How Jong will I be on the Program?
A. Your property will remain on the Program for three years. If
no hazards are found during that time, your property may be
removed from the program.
Q. How much will this cost me?
A. There will be an annual fee to cover the cost of the
compliance inspection. If the parcel does not meet the MFSS
when it is first inspected in the spring, or if work is required by·
the County contractor, you will be charged additional fees. Our
goal is to ensure that the MFSS are met at the lowest possible
cost to the property owner.
Q. How will I be billed?
A. Any charges for the inspection and any abatement work
performed will appear as a special assessment on your next
property tax bill.
Q. Why have you performed work on my property while
the vegetation is still green?
A. Grass, weeds or piles of combustible debris have been
declared a public nuisance by your jurisdiction. Abating fire
hazards in the spring minimizes the volume of combustible
material before the hazards increase and dries out completely
during the peak fire season.
Q. Will you notify me prior to beginning abatement work?
A. Property owners are responsible for preventing fire hazards
on their property. If the MFSS have been met, but further work
is necessary, you will receive notice prior to the County
contractor performing the work. If the MFSS have not been
met, an attempt will be made to give the owner a courtesy
notice prior to initial abatement.
Q. Where can I find someone to provide abatement
services?
A. Weed Abatement contractors can be found in the Yellow
Pages under "Weed Control Services" or "Discing Services".
You may have the County contractor perform the necessary
work; see your mailing packet for a current price list as
administrative costs are charged.
Q. How can I get additional information or assistance
regarding the specific requirements for my property?
A. Weed Abatement Inspectors are available to assist you and
answer your questions. Please call our Customer Service line
at (408) 282-3145 to schedule a consultation with program
staff or to obtain additional information.
Q. I have Grazing Animals do I need to perform
abatement?
A. Grazing animals do not absolve you of your responsibilities
to provide a fire safe condition on your property. You will need
to check with our office to determine if grazing is adequate or if
additional work is reauired.
563
RESOLUTION NO. 16-136
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
RESCINDING RESOLUTION NO. 16-125 AND ADOPTING AN AMENDED
RESOLUTION DECLARING WEEDS ON CERTAIN DESCRIBED
PROPERTY TO BE A PUBLIC NUISANCE TO MOVE THE HEARING FOR
OBJECTIONS TO PROPOSED REMOVAL TO FEBRUARY 7
WHEREAS, weeds are growing in the City of Cupertino upon certain
streets, sidewalks, highways, roads and private property; and
WHEREAS, said weeds may attain such growth as to become a fire
menace or which are otherwise noxious or dangerous; and
WHEREAS, said weeds constitute a public nuisance;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Cupertino as follows:
1. That said weeds do now constitute a public nuisance;
2. That said nuisance exists upon all of the streets, sidewalks, highways,
roads and private property more particularly described by common
names or by reference to the tract, block, lot, code area, and parcel number
on the report prepared by the Agricultural Commissioner and attached
hereto;
3. That the 7th day of February, 2017, at the hour of 6:45 p.m., or as soon
thereafter as the matter can be heard, in the Council Chamber in the
Community Hall, City of Cupertino, is hereby set as the time and place
where all property owners having any objections to the proposed removal
of such weeds may be heard;
4. That the Agricultural Commissioner is hereby designated and ordered as
the person to cause notice of the adoption of this resolution to be given in
the manner and form provided in Sections 9.08.040 of the Cupertino
Municipal Code.
564
Resolution No. 16-136
Page 2
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 20th day of December, 2016, by the following vote:
Vote Members of the City Council
AYES: Vaidhyanathan, Chang, Scharf, Sinks
NOES: None
ABSENT: Paul
ABSTAIN: None
ATTEST: APPROVED:
/s/ Grace Schmidt /s/ Savita Vaidhyanathan
_________________________ ___________________________
Grace Schmidt, City Clerk Savita Vaidhyanathan, Mayor,
City of Cupertino
565
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-2176 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:11/15/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: An Ordinance of the City Council of the City of Cupertino Amending Title 11 Chapter 11.08
Sections 11.08.160 and 11.08.180 of the Cupertino Municipal Code Regarding Restrictions on Riding
Bicycles on Sidewalks and Pedestrian Paths
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Redlined Ch 11.08.160_180-Rev
B - Draft Ordinance
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:AnOrdinanceoftheCityCounciloftheCityofCupertinoAmendingTitle11
Chapter11.08Sections11.08.160and11.08.180oftheCupertinoMunicipalCodeRegarding
Restrictions on Riding Bicycles on Sidewalks and Pedestrian Paths
ConductfirstreadingofOrdinanceNo.17-2161,AnOrdinanceoftheCityCounciloftheCity
ofCupertinoAmendingTitle11Chapter11.08Sections11.08.160and11.08.180ofthe
CupertinoMunicipalCodeRegardingRestrictionsonRidingBicyclesonSidewalksand
Pedestrian Paths
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
powered by Legistar™566
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: February 7, 2017
Subject
An Ordinance of the City Council of the City of Cupertino Amending Title 11 Chapter
11.08 Sections 11.08.160 and 11.08.180 of the Cupertino Municipal Code Regarding
Restrictions on Riding Bicycles on Sidewalks and Pedestrian Paths
Recommended Action
Conduct first reading of Ordinance No. 17-XXXX, An Ordinance of the City Council of
the City of Cupertino Amending Title 11 Chapter 11.08 Sections 11.08.160 and 11.08.180
of the Cupertino Municipal Code Regarding Restrictions on Riding Bicycles on
Sidewalks and Pedestrian Paths
Discussion
Section 11.08 of the Cupertino Municipal Code currently restricts bicycling on
sidewalks to children under the age of ten. The Bicycle Pedestrian Commission, along
with members of the community, have recently expressed safety concerns about
children ages ten through 12 being legally required to ride in the roadway, especially
along busy school routes that cannot accommodate bike lanes such as Rainbow Drive,
Garden Gate Avenue, and others.
In order to enhance safety, encourage bicycling and provide options for pre-teen
children, staff is recommending that the maximum age for bicycling on sidewalks be
raised to the age of 12, and additionally that adults who are accompanying these
children be allowed to ride on the sidewalk as well. Staff also recommends removing
obsolete language that allowed riding on the sidewalk along Pacifica Drive between
Whitney Way and Torre Avenue, and clarifying language to allow bicycling on any (off-
street) pedestrian path within the City unless specifically posted as prohibited.
The Bicycle Pedestrian Commission recommended that City Council adopt the attached
Ordinance at their November 16, 2016 meeting.
Sustainability Impact
There is no sustainability impact.
567
Fiscal Impact
There is no fiscal impact.
_____________________________________
Prepared by: David Stillman, Senior Civil Engineer
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
Exhibit A – Redlined Municipal Code Sections 11.08.160 and 11.08.180
Exhibit B – Draft Ordinance 17-XXXX
568
Cupertino, CA Municipal Code
11.08.160 Riding–On Pedestrian Facilities.
No person shall ride, use or operate a bicycle in any pedestrian crosswalk within the City. No person shall
ride, use or operate a bicycle on any sidewalk or pedestrian path within the City except on Pacifica Drive
between Whitney Way and Torre Avenue, and as specifically permitted in this chapter.
(Ord. 1649, 1994; Ord. 1560, 1991; Ord. 1420, (part), 1987)
No person shall ride, use or operate a bicycle on any sidewalk within the City except as specifically permitted in
this chapter.
11.08.180 Exemptions.
Children under the age of ten years shall be exempt from the provisions of Section 11.08.160; provided,
that the exemption shall not apply to any child under the age of ten years who fails to exercise, or is
incapable of exercising, due care for the rights and safety of all others using any sidewalk or pedestrian path;
and provided further, that in any event the exemption shall not apply to the operation of bicycles on any
sidewalk or pedestrian path in front of any business or commercial establishment.
(Ord. 1420, (part), 1987)
The prohibition in Section 11.08.160 against riding, using, or operating a bicycle on a sidewalk shall
not apply to:
A. A child age twelve years and under; and
B. An adult accompanying a child age twelve years and under who is also riding, using, or operating a
bicycle.
C.Any person riding, using or operating a bicycle on a pedestrian path, unless specifically posted as
prohibited.
569
Draft Ordinance No. 17-XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CUPERTINO AMENDING TITLE 11 CHAPTER 11.08
SECTIONS 11.08.160 AND 11.08.180 REGARDING
RESTRICTIONS ON RIDING BICYCLES ON
SIDEWALKS AND PEDESTRIAN PATHS
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. Section 11.08.160 of Chapter 11.08 of Title 11 of the Cupertino Municipal
Code is hereby amended to read as follows:
11.08.160 Riding On Pedestrian Facilities.
No person shall ride, use or operate a bicycle on any sidewalk within the City
except as specifically permitted in this chapter.
570
SECTION 2: Section 11.08.180 of Chapter 11.08 of Title 11 of the Cupertino Municipal
Code is hereby amended to read as follows:
11.08.180 Exemptions.
The prohibition in Section 11.08.160 against riding, using, or operating a bicycle on a
sidewalk shall not apply to:
A. A child age twelve years and under; and
B. An adult accompanying a child age twelve years and under who is also
riding, using, or operating a bicycle.
C. Any person riding, using or operating a bicycle on a pedestrian path, unless
specifically posted as prohibited.
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
571
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 ___________ 2017 and ENACTED at a regular meeting of the Cupertino City Council
on this ____ of __________ 2017 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
City Clerk Mayor of the City of Cupertino
572
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:117-2278 Name:
Status:Type:Ordinances and Action Items Agenda Ready
File created:In control:1/17/2017 City Council
On agenda:Final action:2/7/2017
Title:Subject: Fee waiver request by Pacific Coast Farmers Market Association (PCFMA) for costs
incurred related to a Special Event Permit for a farmer’s market at the Creekside Park north parking
lot on Friday mornings for the 2017 calendar year
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Draft Resolution
B - Letter from Pacific Coast Farmers Market Association
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:FeewaiverrequestbyPacificCoastFarmersMarketAssociation(PCFMA)forcosts
incurredrelatedtoaSpecialEventPermitforafarmer’smarketattheCreeksideParknorth
parking lot on Friday mornings for the 2017 calendar year
StaffrecommendsadoptionofResolutionNo.17-018“AresolutionoftheCityCouncilofthe
CityofCupertinowaivingcostsincurredrelatedtotheuseoftheCreeksideParknorthparking
lotbythePacificCoastFarmer’sMarketAssociationeveryFridaymorningforthe2017
calendar year"
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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OFFICE OF THE CITY MANAGER
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3212 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: February 7, 2017
Subject
Fee waiver request by Pacific Coast Farmers Market Association (PCFMA) for costs
incurred related to a Special Event Permit for a farmer’s market at the Creekside Park
north parking lot on Friday mornings for the 2017 calendar year.
Recommended Action
Staff recommends adoption of the Draft Resolution “A resolution of the City Council of
the City of Cupertino waiving costs incurred related to the use of the Creekside Park
north parking lot by the Pacific Coast Farmer’s Market Association every Friday
morning for the 2017 calendar year.”
Description
The PCFMA is requesting use of Creekside Park parking lot to hold a farmer ’s market
open to the Cupertino community.
Discussion
The City has hosted two popular farmer’s markets serving the community. These
include the farmer’s market at the Oaks Shopping Center, organized by the West Coast
Farmer’s Market Association, and the Vallco farmer’s market at the Vallco Shopping
Mall, organized by the Pacific Coast Farmer’s Market Association (PCFMA). The
PCFMA is proposing to relocate the Friday farmer’s market to the Creekside Park
parking lot location as a convenient and alternative location for the Vallco farmer’s
market since that site is no longer available as a venue.
The PCFMA is a tax-exempt 501(c)5 non-profit organization. Pursuant to the City of
Cupertino’s facility use policy, a non-profit organization providing a service to the
community may receive a waiver of fees with Council approval.
The Department of Recreation and Community Services will review the proposed
operations of the event prior to issuance of a Special Events Permit for use of the site.
574
The event is proposed to be held every Friday from 7 a.m. to 2 p.m. in the north
parking lot at the Park, with the market open to the public generally between 9 a.m.
and 1 p.m. The event organizers plan to enter into a parking arrangement with the
adjacent church (First Baptist Church) to ensure adequate parking is available for this
event.
The permit will include performance measures and conditions such as set-up/clean-up
and outdoor cooking requirements, so that there are no operational issues related to
the event. It is anticipated that the permit will be issued for one year at a time for the
event. This will allow the City an opportunity to review PCFMA’s activities annually
and make any necessary adjustments to the permit, if PFCMA shows interest in
continuing the event at this location.
Sustainability Impact
Continuing the Friday farmer’s market will greatly benefit the community by
providing access to fresh and locally sourced produce and food items. This would also
potentially help reduce the City’s greenhouse gas emissions and carbon footprint.
Fiscal Impact
Staff estimates an approximate $5,200 negative impact to the City’s General Fund,
which includes the cost of an on-site City staff member during the events for the 2017
calendar year. Currently, there are enough funds in the Department of Recreation and
Community Services budget for the current fiscal year to absorb this cost.
Prepared by: Angela Tsui, Economic Development Manager
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Draft Resolution
B – Letter from Pacific Coast Farmers Market Association
575
RESOLUTION NO. 17-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ADOPTING THE FEE WAIVER REQUEST BY THE PACIFIC COAST FARMERS MARKET
ASSOCIATION TO HOLD A FRIDAY FARMER’S MARKET
AT CREEKSIDE PARK PARKING LOT
WHEREAS, the PCFMA had been operating its Friday’s Farmer’s Market at Vallco
Shopping Mall for many years; and
WHEREAS, the Vallco Shopping Mall was no longer an available venue as of December
31, 2016; and
WHEREAS, continuing the Friday Farmer’s Market provides access to fresh and locally
sourced produce and food items, which encourages a healthy lifestyle; and
WHEREAS, the Farmer’s Market would also potentially help reduce the City’s
greenhouse gas emissions and carbon footprint; and
WHEREAS, relocating the Friday Farmer’s Market from Vallco Shopping Mall to a
convenient location in close proximity does not significantly alter travel for vendors and
shoppers;
WHEREAS, adoption of this Resolution is exempt from the California Environmental
Quality Act because adoption of a fee waiver is a fiscal activity which is not a project that will
result in physical changes in the environment, either directly or indirectly. (CEQA Guidelines
Section 15378(b)(4), (5)).
NOW, THEREFORE, BE IT RESOLVED:
Section 1.
That after careful consideration of the facts, exhibits, staff report, and other evidence submitted in
this matter, the City Council does find as follows:
1. The foregoing recitals are true and correct and incorporated into this resolution by this
reference.
2. The PCFMA Friday Farmer’s Market provides access to fresh and locally sourced
produce and food, which encourages a healthy lifestyle.
576
Draft Resolution No. 17-XXX Pacific Coast Farmers Market Association Fee Waiver February 7, 2017
Section 2.
The City Council does hereby waive the fees and costs for the PCFMA to hold a Friday Farmer’s
Market at Creekside Park parking lot located on Miller Avenue for the calendar year 2017.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this
7th day of February 2017, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
Grace Schmidt Savita Vaidhyanathan, Mayor
City Clerk City of Cupertino
577
Esteemed Mayor and City Council members.
For over 14 years, the Pacific Coast Farmers’ Market Association, a 501(c)5 non-profit organization, has been
serving the Cupertino community by organizing the farmers’ market at the Vallco Shopping Center. After two
years of incessant searching for a potential new home for the market, we have identified a site that we feel will be
beneficial to both the farmers and the Cupertino community.
Creekside Park would be most conducive to providing Cupertino residents with access to fresh fruits and
vegetables while helping PCFMA continue to fulfill our mission of empowering California farmers to be
enormously successful in Bay Area communities. The parking lot of Creekside Park on Miller Avenue would be just
far enough away from the surrounding houses so any noise generated from the market would not disturb local
residents. Additionally, our new partnership with the First Baptist Church of Cupertino would allow for us to
provide extra parking for our customers and minimize the impact of farmers’ market customers parking in the
neighborhood.
We at Pacific Coast Farmers’ Market Association ask for the Council to consider waiving the facility use fee of the
Creekside Park parking lot on Miller Avenue on Friday mornings from 7am to 3pm for the set-up and operation of
the farmers’ market so we can continue to serve the Cupertino community moving forward in 2017. We are
excited to continue to provide a gathering space for the Cupertino community to purchase their fresh fruits,
vegetables, dairy products, directly from the growers and look forward to expanding our level of service to the
community.
Thank you for your consideration.
Jorge Vega
Regional Manager
578
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-2177 Name:
Status:Type:Reports by Council and Staff Agenda Ready
File created:In control:11/15/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: Update on Status of I-280/Wolfe Road Interchange Improvements Project
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Partial Cloverleaf - Widen or Replace
B - Compact Diamond Interchange
C - Diverging Diamond Interchange
D - Double Roundabout Interchange
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Update on Status of I-280/Wolfe Road Interchange Improvements Project
Receive update on status of I-280/Wolfe Road Interchange Improvements Project
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
powered by Legistar™579
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: February 7, 2017
Subject
Update on Status of I-280/Wolfe Road Interchange Improvements Project
Recommended Action
Receive update on status of I-280/Wolfe Road Interchange Improvements Project
Background
HMH was retained by Santa Clara Valley Transportation Authority (VTA), in
partnership with the City of Cupertino (City), to complete a Project Alternative Analysis
and preliminary engineering work, through a Project Initiation Document (PID), of
possible concepts to relieve projected traffic congestion and improve bicycle and
pedestrian connectivity at the I-280 / Wolfe Road Interchange. The I-280 / Wolfe Road
Interchange serves as a major access point to the City. Immediately adjacent to several
large developments, most notably Apple Campus 2, vehicular, transit, bicycle and
pedestrian volumes are expected to increase significantly before the project design
horizon of 2040. The goals of VTA and the City, as partners on the I-280 / Wolfe Road
Interchange Improvements Project (Project), are to investigate alternatives and initiate
project development for a cost effective solution to improve traffic efficiency and safely
accommodate bicycles and pedestrians while efficiently using existing right-of-way.
The existing interchange is outdated for the highly intensified land uses in the vicinity
of the Project. The Wolfe Road Interchange Project offers an opportunity to develop a
landmark facility that complements the land uses on either side of the I-280 freeway,
improves access and circulation for the intense mix of residents and workers expected
in the area, and will create a model multimodal facility, accommodating autos, transit,
bikes and pedestrians with landscape and architectural design features that enhance the
experience for all users.
The Final Project Study Report/PID (PSR/PID) is scheduled to be completed and
submitted to Caltrans in March, 2017. VTA and the City are currently in discussions to
extend their Cooperative Agreement and contract with HMH to continue the Project
into the environmental phase through completion of a Project Approval/Environmental
580
Document (PA/ED), followed by completion of Plans, Specifications and Estimates
(PS&E). Assuming that there is no break in funding availability and no local challenges,
the estimated project timeline would be:
PA/ED: Begin May 2017, complete early 2019
PS&E: Begin late 2018, complete early 2020
Construction: Begin Spring 2020, complete Spring 2022
Discussion
The team identified the following alternative configurations to be evaluated in the PID ,
in addition to the no-build alternative:
Partial Cloverleaf – Widen or Replace
Compact Diamond Interchange
Diverging Diamond Interchange
Double Roundabout Interchange
Only the Partial Cloverleaf was evaluated for potential widening or replacement in
order to conserve Project budget; however, the pros and cons of widening versus
replacement would apply equally to all considered alternatives. Key aspects of the
purpose of the Project include:
Provide improved efficiency for traffic operations
Provide improved bicycle and pedestrian accommodations
Implement the latest “Complete Streets” guidance
Promote the use of transit
Optimize use of existing right-of-way
Complement the land use of the surrounding area
Deliver a cost-effective project
The following evaluation criteria was identified to assess an alternative ’s ability to meet
the above goals and objectives of the project:
Promotion of Multiple Transportation Modes
Traffic Operations
Complements the Surrounding Land Use
Environmental Considerations
Use of Existing Right of Way
Estimated Project Cost
581
Based on an evaluation of all configurations against the above criteria, the PID will
identify three primary design alternatives to be carried forward into the PA/ED phase
for further evaluation. These alternatives are:
Partial Cloverleaf – Widen or Replace
Compact Diamond Interchange
Diverging Diamond Interchange
Sustainability Impact
There is no sustainability impact.
Fiscal Impact
Funding for the PSR phase of the project ($1.2 million) was provided by the City wholly
through contributions from Apple ($1.0 million) and the Irvine Company ($200,000). It
is anticipated that funding for the next (PA/ED) phase of the project will come primarily
from Measure B sales tax funding, with some funding coming potentially from private
development contributions including $500,000 already committed by the Hyatt House
Hotel. Staff will return to Council with an update once specific funding amounts and
sources for the next phase are identified.
_____________________________________
Prepared by: David Stillman, Senior Civil Engineer
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
A - Partial Cloverleaf – Widen or Replace
B - Compact Diamond Interchange
C - Diverging Diamond Interchange
D - Double Roundabout Interchange
582
583
584
585
586
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-2196 Name:
Status:Type:Reports by Council and Staff Agenda Ready
File created:In control:11/21/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: Update on Status of 2016 Cupertino Bicycle Transportation Plan Implementation
Sponsors:
Indexes:
Code sections:
Attachments:Staff Report
A - Map of Area and Bikeway Locations
B - Stevens Creek Blvd Bikeway Concept and Buffer Treatment Options
C - Intersection and Signalization
D - Bus Stop and Driveway Treatments
E - McClellan Road Concepts and Buffer Treatment Options
Action ByDate Action ResultVer.
City Council2/7/20171
Subject: Update on Status of 2016 Cupertino Bicycle Transportation Plan Implementation
Receive update on status of 2016 Cupertino Bicycle Transportation Plan Implementation
CITY OF CUPERTINO Printed on 2/1/2017Page 1 of 1
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PUBLIC WORKS DEPARTMENT
CITY HALL
10 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3354 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: February 7, 2017
Subject
Update on Status of 2016 Cupertino Bicycle Transportation Plan Implementation
Recommended Action
Receive update on status of 2016 Cupertino Bicycle Transportation Plan Implementation
Background
The 2016 Cupertino Bicycle Transportation Plan was adopted by the City Council in
May, 2016. Included in the Plan is a list of proposed bikeway projects, ranked in
priority order and separated into three Tiers, with Tier 1 being the highest priority
projects. Council has approved $2 million for implementation of these projects for the
2016/17 fiscal year.
Ranked #1 on the priority project list was the installation of Class IV bike lanes along
the entire length of Stevens Creek Blvd. Bike lanes are classified as Class IV when there
is a physical buffer, as opposed to just a striped buffer, separating the bike lane from the
vehicle lanes. Installation of Class IV bike lanes along McClellan Road, between Byrne
Ave and De Anza Blvd, was ranked #2. When City Council adopted the Bike Plan, staff
was directed to evaluate and complete both the Stevens Creek Blvd and McClellan
Road Class IV bike lane projects in parallel, i.e., ensure that an east-west route across
Cupertino along McClellan Road for less-experienced bicyclists was available, who may
not be comfortable riding along Stevens Creek Blvd even with the Class IV
improvements. Because McClellan Road does not continue east of De Anza Blvd, a
neighborhood network of streets would be chosen to continue a bike route or bicycle
boulevard between De Anza Blvd and the eastern city limit, more or less parallel to
Stevens Creek Blvd. This network would be consistent with proposed bike routes or
bicycle boulevards identified in the Bike Plan within Tier 1. These alignments are
shown in Exhibit A.
In response to direction provided by City Council, staff hired Toole Design Group to
develop alternatives and conceptual designs for Class IV bike lanes along Stevens Creek
Blvd and McClellan Road, and for a network of east-west bike routes and bike
588
boulevards south of Stevens Creek Blvd connecting McClellan Road to the eastern city
limit.
Discussion
Stevens Creek Blvd
The proposed Class IV bike lane along Stevens Creek Blvd (Exhibit B) would consist of
a raised concrete buffer approximately two-feet wide separating the bike lane from the
adjacent vehicle lanes. This buffer could be cast-in-place or pre-cast concrete, and
would likely include appropriately-spaced vertical elements to highlight the buffer.
Breaks in the buffer would be provided at all driveways, and additional striping
provided within the bike lane at all driveway crossings to highlight the potential
conflicts for both bicyclists and vehicles (Exhibit D).
A notable feature of the Class IV proposal relates to the bike lane treatment at
signalized intersections (Exhibit C). In order to minimize conflicts between right-
turning vehicles and bicyclists, at locations where there is a heavy volume of right-
turning vehicles a separate bicycle signal phase and dedicated vehicle right-turn lane is
recommended, that would require right-turning vehicles to stop while bicyclists are
given a green light to proceed. The number of through lanes would be reduced to two.
Because this special traffic signal phasing would be implemented only at intersections
where right-turning volumes are heavy, there would be minimal impacts to vehicle
level of service resulting from the reduction in through lanes, while bicyclist safety
would be greatly enhanced.
The physical buffer between the bike lane and vehicle lanes would also require special
treatment at bus stops (Exhibit D) to accommodate bus movements and passenger
boarding. Staff is currently in discussions with VTA regarding these treatments and
will develop designs that take into account the needs of VTA as well as providing the
necessary level or protection for bicyclists.
McClellan Road
Due to the high density of residential driveways, constrained right-of-way and school-
related traffic, implementation of Class IV bike lanes along McClellan is more
challenging than along Stevens Creek Blvd, especially between Bubb Road and Byrne
Ave (Exhibit E). Two concepts have been provided for protected lanes along this
segment: one-way protected bike lanes on each side of the street (Concept 1, Exhibit E),
and a separated two-way bike facility on the north side of the street (Concept 2, Exhibit
E). A separated two-way facility on the south side of the street is also equally feasible.
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All of these options will require acquiring right-of-way or easements from some
property owners on the north side of the street, an effort which is currently underway
by staff.
Pros and cons of these proposals are as follows:
Pros Cons
Two one-way facilities
(Concept 1)
Maintains existing bike lane
placement
Less room for bicyclists to
pass
Two-way north side facility
(Concept 2)
Potential conflicts at
residential driveways are
relatively infrequent
Multiple residential
driveways
Challenging access to and
from schools on south side
Two-way south side facility Direct access to schools
Driveway conflicts only
during school times
School driveways very
busy at certain times
Between Stelling Road and De Anza Blvd, two one-way protected bike lanes are
recommended, with the necessary removal of on-street parking. East of De Anza Blvd,
where protected bike lanes aren’t feasible due to the residential n ature of the streets,
traffic calming features will be developed and presented to the neighborhoods which
would encourage bicycling and calm vehicle speeds. These “bike boulevard”
treatments would complete the east-west cross-city connection of the McClellan
bikeway.
A public workshop was held on January 25 in order to introduce the concepts and
solicit feedback from the public. Overall support for all concepts was received from the
public, with most comments restricted to design details that have yet to be completely
worked out due to the preliminary nature of the concepts provided to date.
Sustainability Impact
There is no sustainability impact.
Fiscal Impact
City Council approved $2 million in funding for the implementation of the 2016 Bicycle
Transportation Plan for FY 2016-17. Approximately $170,000 of this has been
encumbered for the current Agreement with Toole Design Group for development of
the Stevens Creek Blvd and McClellan Road conceptual designs. Once the conceptual
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designs have been accepted by staff, staff will proceed with development of engineering
design, cost estimating and construction of the improvements. This work will be
funded using the $2 million allocated by Council.
_____________________________________
Prepared by: David Stillman, Senior Civil Engineer
Reviewed by: Timm Borden, Director of Public Works
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Map of Area and Bikeway Locations
B – Stevens Creek Blvd Bikeway Concept and Buffer Treatment Options
C – Intersection and Signalization
D – Bus Stop and Driveway Treatments
E – McClellan Road Concepts and Buffer Treatment Options
591
MCCLELLAN
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Stevens Creek Blvd & McClellan Rd Class IV Bikeway Design
Map of Area and Bikeway Locations
CLASS IV BIKEWAY AREA FOR FURTHER STUDY
HOW DID WE CHOOSE THESE CORRIDORS?
The Class IV Protected Bikeway corridors were
prioritized through the 2016 Bicycle Transportation
Plan (BTP). Stevens Creek Boulevard and McClellan
Road were both ranked Tier 1 projects and had the
highest overall score.
WHAT IS A CLASS IV BIKEWAY?
A Class IV bikeway is an exclusive facilty for bicyclists
that is located within or directly adjacent to the
roadway and is physically separated from motor
vehicle traffic with a vertical element.
WHAT ARE THE NEXT STEPS?
After receiving feedback from the public and regional
stakeholders, we will move forward with a conceptual
design, taking into account the comments and
questions we gather from stakeholders.
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4
Stevens Creek Blvd & McClellan Rd Class IV Bikeway Design
Bus Stop Treatments
Driveway Treatments
Floating Bus Stop // The Class IV Bikeway routes around the
back of the bus stop platform. Minimizes conflicts between
buses and bicyclists.
Conflict Marking // The Class IV Bikeway buffer is interrupted
to allow access to the driveway. Conflict pavement marking
identifies the crossing area to both motorists and cyclists.
Raised Bikeway // Bicyclists are more visible with a raised
crossing, and motor vehicles must enter and exit the driveway
more slowly.
Bus Pullout // The bus crosses the Class IV Bikeway to enter and
exit the platform area. Sufficient width for through bicyclists is
maintained, reducing bicycle delay.
Shared Bus/Bicycle Space // The bus pulls into the Class IV
Bikeway to serve the sidewalk platform. This is used where
buses are infrequent.
FPO
595
Stevens Creek Blvd & McClellan Rd Class IV Bikeway Design
McClellan Road // Existing Conditions
McClellan Road // Buffer Treatment Options
1. Raised Median
4. Concrete Barrier
2. Precast Surface Mounted Curb
5. Raised Bikeway
3. Flexible Delineator Posts
6. Planter Boxes
McClellan Road // Concept 1
McClellan Road // Concept 2
596
CITY OF CUPERTINO
Legislation Details (With Text)
File #: Version:116-1951 Name:
Status:Type:Reports by Council and Staff Agenda Ready
File created:In control:9/1/2016 City Council
On agenda:Final action:2/7/2017
Title:Subject: Report on Committee assignments and general comments
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
City Council2/7/20171
Subject:Report on Committee assignments and general comments
Report on Committee assignments and general comments
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