11-19-20 Searchable PacketCITY OF CUPERTINO
CITY COUNCIL
AGENDA
This will be a teleconference meeting without a physical location.
Thursday, November 19, 2020
6:00 PM
Televised Special Meeting (6:00)
TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION TO HELP STOP THE
SPREAD OF COVID-19
In accordance with Governor Newsom’s Executive Order No-29-20, this will be a
teleconference meeting without a physical location to help stop the spread of COVID-19.
Members of the public wishing to observe the meeting may do so in one of the following
ways:
1) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV.
2) The meeting will also be streamed live on and online at www.Cupertino.org/youtube
and www.Cupertino.org/webcast
Members of the public wishing comment on an item on the agenda may do so in the
following ways:
1) E-mail comments by 5:00 p.m. on Thursday, November 19 to the Council at
citycouncil@cupertino.org. These e-mail comments will also be forwarded to
Councilmembers by the City Clerk’s office before the meeting and posted to the City’s
website after the meeting.
2) E-mail comments during the times for public comment during the meeting to the City
Clerk at cityclerk@cupertino.org. The City Clerk will read the emails into the record, and
display any attachments on the screen, for up to 3 minutes (subject to the Mayor’s
discretion to shorten time for public comments). Members of the public that wish to share a
document must email cityclerk@cupertino.org prior to speaking.
3) Teleconferencing Instructions
Members of the public may provide oral public comments during the teleconference
meeting as follows:
Page 1
1
CC 11-19-20
1 of 19
City Council Agenda November 19, 2020
Oral public comments will be accepted during the teleconference meeting. Comments may
be made during “oral communications” for matters not on the agenda, and during the
public comment period for each agenda item.
To address the City Council, click on the link below to register in advance and access the
meeting:
Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_cD_4tPtmRH6s9jZ4BxzZZA
Phone
Dial: (888) 788 0099 and enter Webinar ID: 941 8993 4893 (Type *9 to raise hand to speak).
Unregistered participants will be called on by the last four digits of their phone number.
Or an H.323/SIP room system:
H.323:
162.255.37.11 (US West)
162.255.36.11 (US East)
Meeting ID: 941 8993 4893
SIP: 94189934893@zoomcrc.com
After registering, you will receive a confirmation email containing information about
joining the webinar.
Please read the following instructions carefully:
1. You can directly download the teleconference software or connect to the meeting in your
internet browser. If you are using your browser, make sure you are using a current and
up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain
functionality may be disabled in older browsers, including Internet Explorer.
2. You will be asked to enter an email address and a name, followed by an email with
instructions on how to connect to the meeting. Your email address will not be disclosed to
the public. If you wish to make an oral public comment but do not wish to provide your
name, you may enter “Cupertino Resident” or similar designation.
3. When the Mayor calls for the item on which you wish to speak, click on “raise hand.”
Speakers will be notified shortly before they are called to speak.
4. When called, please limit your remarks to the time allotted and the specific agenda topic.
Page 2
2
CC 11-19-20
2 of 19
City Council Agenda November 19, 2020
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to
attend this teleconference 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, at least 6 hours in advance of the Council meeting to arrange for assistance. In
addition, 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.
NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL
NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby
called for Thursday, November 19, 2020, commencing at 6:00 p.m. In accordance with
Governor Newsom’s Executive Order No-29-20, this will be a teleconference meeting
without a physical location. Said special meeting shall be for the purpose of conducting
business on the subject matters listed below under the heading, “Special Meeting."
SPECIAL MEETING
ROLL CALL
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Council on any matter within
the jurisdiction of the Council and not on the agenda. The total time for Oral Communications will
ordinarily be limited to one hour. Individual speakers are limited to three (3) minutes. As necessary, the
Chair may further limit the time allowed to individual speakers, or reschedule remaining comments to
the end of the meeting on a first come first heard basis, with priority given to students. In most cases,
State law will prohibit the Council from discussing or making any decisions with respect to a matter
not listed on the agenda.
ORDINANCES AND ACTION ITEMS
1.Subject: Emergency Assistance Funds to assist unhoused members of the encampments
located along Wolfe Road near Interstate 280 (Wolfe Road Encampment) to mitigate
safety hazards including COVID-19; related budget modification.
Recommended Action: That the City Council:
Adopt Resolution No. 20-135 approving Budget Modification #2021-107 transferring
$200,000 in existing appropriations from the General Fund to the Below Market Rate
(BMR) Housing Special Revenue Fund; approving the allocation of $200,000 in BMR
Affordable Housing Funds (AFH) for emergency assistance to assist unhoused
members of the Wolfe Road encampment, and authorizing the City Manager to
negotiate and execute any contracts necessary to facilitate the emergency assistance.
Staff Report
A - Draft Resolution
Page 3
3
CC 11-19-20
3 of 19
City Council Agenda November 19, 2020
2.Subject: Proposed consent to Shute, Mihaly & Weinberger, LLP’s (SMW)
representation of the County of Santa Clara (County) in connection with matters
related to the Santa Clara Valley Water District’s proposed modifications to the
Anderson Dam to address seismic issues (Anderson Dam Matter).
Recommended Action: Consent to SMW’s representation of the County in connection
with the Anderson Dam Matter and authorize the City Manager to execute a consent to
SMW’s concurrent representation of the City and the County and waiver of potential
conflicts of interest that might arise out of such concurrent representation (Attachment
A).
City Attorney Letter
A - Consent to Concurrent Representation
ADJOURNMENT
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/cityclerk for a reconsideration petition form.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this
teleconference 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, at least 6 hours in advance of the
meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability,
meeting agendas and writings distributed for the meeting that are public records will be made available
in the appropriate alternative format.
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.
IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100
written communications sent to the Cupertino City Council, Commissioners or City staff concerning a
matter on the agenda are included as supplemental material to the agendized item. These written
communications are accessible to the public through the City’s website and kept in packet archives. You
Page 4
4
CC 11-19-20
4 of 19
City Council Agenda November 19, 2020
are hereby admonished not to include any personal or private information in written communications to
the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights
you may have on the information provided to the City.
Page 5
5
CC 11-19-20
5 of 19
CITY OF CUPERTINO
Agenda Item
20-8429 Agenda Date:
11/19/2020 Agenda #: 1.
Subject: Emergency Assistance Funds to assist unhoused members of the encampments located along
Wolfe Road near Interstate 280 (Wolfe Road Encampment) to mitigate safety hazards including
COVID-19; related budget modification.
That the City Council:
Adopt Resolution No. 20-135 approving Budget Modification #2021-107 transferring $200,000 in
existing appropriations from the General Fund to the Below Market Rate (BMR) Housing Special
Revenue Fund; approving the allocation of $200,000 in BMR Affordable Housing Funds (AFH) for
emergency assistance to assist unhoused members of the Wolfe Road encampment, and authorizing
the City Manager to negotiate and execute any contracts necessary to facilitate the emergency
assistance.
CITY OF CUPERTINO Printed on 11/18/2020Page 1 of 1
powered by Legistar™6
CC 11-19-20
6 of 19
CITY COUNCIL STAFF REPORT
Meeting: November 19, 2020
Subject
Emergency Assistance Funds to assist unhoused members of the encampments located
along Wolfe Road near Interstate 280 (Wolfe Road encampment) to mitigate safety
hazards including COVID-19; related budget modification.
Recommended Action
1. Adopt Resolution approving Budget Modification #2021-107 transferring $200,000
in existing appropriations from the General Fund to the Below Market Rate (BMR)
Housing Special Revenue Fund; approving the allocation of $200,000 in BMR
Affordable Housing Funds (AFH) for emergency assistance to assist unhoused
members of the Wolfe Road encampment, and authorizing the City Manager to
negotiate and execute any contracts necessary to facilitate the emergency
assistance.
Discussion
In June 2020, the City formed a Homelessness Task Force to evaluate and formulate a
response to the growing needs of the unhoused members in Cupertino. The City’s Task
Force has engaged regularly with the County of Santa Clara County Office of Supportive
Housing (OSH), Abode Services, and many non-profits and social service providers
serving the unhoused in Cupertino. The Task Force determined the COVID-19 pandemic
has impaired the normal countywide system to provide services to persons experiencing
homelessness. These unusual circumstances require an extraordinary response to
prioritize a pathway to housing for persons experiencing homelessness.
The Task Force has identified the Wolfe Road encampment as a serious concern due to
the COVID-19 pandemic, impending inclement weather, and proximity to high-speed
traffic entering the freeway. Since July 2020, regular and continuous outreach efforts lead
by OSH and Abode Services have identified and assessed fifteen unhoused individuals
residing at the Wolfe Road encampment. Through a cooperative effort between the City,
OSH, and Abode Services, it has been determined that six months of temporary lodging,
supportive services, and storage could provide a pathway to housing for the original
fifteen encampment members.
7
CC 11-19-20
7 of 19
2
During the month of October, outreach teams have reported that the encampment has
grown beyond the original fifteen members. These additional encampment members will
be offered temporary shelter and services through the County coordination and referral
system. The City is also offering a temporary, alternative outdoor location to maintain
the public health guidance during the COVID-19 pandemic and avoid disbursement of
encampment members. The term of the temporary outdoor site will be determined by the
current COVID-19 shelter in place orders. It is estimated that the monthly cost of
maintaining the temporary outdoor location is $3,600, for an estimated cost of $21,600 for
six months.
Funding Sources
In cooperation with OSH and Abode Services, the City has coordinated six months of
temporary lodging, supportive services, and storage administered by Abode Services at
an estimated total cost of $315,000. On October 2, 2020, City Council adopted Resolution
No. 20-116 increasing General Fund appropriations by $735,259 for COVID-19 related
activities. Staff is recommending $200,000 of the existing General Fund COVID-19
appropriations be transferred to the BMR Housing Special Revenue Fund to assist with
the costs associated with six months of temporary lodging, supportive services, and
storage for the fifteen encampment members. BMR AHF programs and projects are
funded by housing mitigation fees collected from residential and non-residential
development projects. Funds targeting extremely-low income households and/or persons
with special needs are a permitted use of the City’s BMR AHF.
The remaining $115,000 will come from services and funding from the County of Santa
Clara and Housing Trust Silicon Valley, as well as donations from public/private
partnerships. Staff will continue to work closely with community partners, including
potential funders, to explore additional efforts to support unhoused members of our
community.
Sustainability Impact
There are no sustainability impacts.
Fiscal Impact
The General Fund is transferring $200,000 in existing COVID-19 appropriations to the
BMR Housing Special Revenue Fund to provide emergency assistance funds. This
transfer will have no net fiscal impact on the City.
Prepared by: Kerri Heusler, Housing Manager
Approved for submission by: Deborah Feng, City Manager
Attachments:
A - Resolution
8
CC 11-19-20
8 of 19
1
RESOLUTION NO. _____________
A RESOLUTION OF THE CITY OF CUPERTINO APPROVING BUDGET
MODIFICATION #2021-107 TRANSFERRING $200,000 IN EXISTING
APPROPRIATIONS FROM THE GENERAL FUND TO THE BELOW MARKET RATE
(BMR) HOUSING SPECIAL REVENUE FUND AND APPROVING THE ALLOCATION
OF $200,000 IN BMR AFFORDABLE HOUSING FUNDS (AHF) FOR EMERGENCY
ASSISTANCE TO ASSIST UNHOUSED MEMBERS OF THE WOLFE
ROAD ENCAMPMENT AND AUTHORIZE THE CITY MANAGER TO NEGOTIATE
AND EXECUTE ANY CONTRACTS NECESSARY TO FACILITATE THE EMERGENCY
ASSISTANCE.
WHEREAS, on February 3, 2020 and pursuant to Section 101080 of the California
Health and Safety Code, the Santa Clara County Health Officer (the “Health Officer”)
declared a local health emergency throughout Santa Clara County (the “Cou nty”)
related to the novel coronavirus; and
WHEREAS, on February 3, 2020, and pursuant to Section 8630 of the California
Government Code, the Santa Clara County Director of Emergency Services proclaimed
a local emergency throughout the County related to COVID-19; and
WHEREAS, on March 4, 2020, California Governor Gavin Newsom declared a
State of Emergency to make additional resources available, formalize emergency
actions already underway across multiple state agencies and departments, and help the
State prepare for a broader spread of COVID-19; and
WHEREAS, on March 4, 2020, the County issued updated guidance for
workplaces and businesses, stating that employers should take steps to make it more
feasible for their employees to work in ways that minimize clo se contact with large
numbers of people, including: 1) suspend nonessential employee travel; and 2)
minimize the number of employees working within arm’s length of one another,
including minimizing or canceling large in-person meetings and conferences. The
County also recommended that persons at higher risk of severe illness should stay
home and away from crowded social gatherings of people as much as possible such as
parades, conferences, sporting events, and concerts where large numbers of people are
within arm’s length of one another; and
WHEREAS, on March 11, 2020, the Director of Emergency Services of the City of
Cupertino (City) proclaimed a local emergency throughout the City related to COVID-
19; and
WHEREAS, on March 16, 2020 the County, along with five other Bay Area
counties, issued a sweeping Shelter in Place Order; and
9
CC 11-19-20
9 of 19
2
WHEREAS, on March 17, 2020, the Council ratified and continued the
proclamation of a local emergency; and
WHEREAS, on March 19, 2020, Governor Newsom ordered all individuals living
in the State of California to stay home or at their place of residence, with limited
exceptions, to stop the spread of COVID-19; and
WHEREAS, on March 31, 2020, the Health Officer issued a Public Health Order
to continue sheltering in place and exempted individuals experiencing homelessness.
The Health Order strongly urged individuals to obtain shelter and strongly urged
governmental and other agencies to make shelter available. The City provided
handwashing facilities, portable restrooms, and debris bins to facilitate safer conditions
as recommended by the Health Order; and
WHEREAS, given the severe consequences to public health and safety
throughout the City that would result from the displacement of homeless encampments
during the City-wide local health emergency, the City finds and determines that
Emergency Assistance Funds are necessary to assist unhoused residents of the Wolfe
Road encampment to mitigate safety hazards including COVID-19; and
WHEREAS, in June 2020, the City formed a Homelessness Task Force to evaluate
and formulate a response to the growing needs of the homeless residents in Cupertino;
and
WHEREAS, the City’s Task Force has identified the Wolfe Road encampment as
a serious concern due to the COVID-19 pandemic, impending inclement weather, and
proximity to high-speed traffic entering the freeway. Through a cooperative effort
between the City, County of Santa Clara Office of Supportive Housing (OSH), and
Abode Services, it has been determined that six months of temporary lodging,
supportive services, and storage could provide a pathway to housing for the original
fifteen encampment members.
WHEREAS, in cooperation with OSH and Abode Services, the City has
coordinated six months of temporary lodging, supportive services, and storage
administered by Abode Services at an estimated total cost of $315,000. On October 6, 2020,
City Council adopted Resolution No. 20-116 increasing General Fund appropriations by
$735,259 for COVID-19 related activities. Staff is recommending $200,000 of the existing
General Fund COVID-19 appropriations be transferred to the BMR Housing Special
Revenue Fund to assist with the costs associated with six months of temporary lodging,
supportive services, and storage for the fifteen encampment members. BMR AHF
programs and projects are funded by housing mitigation fees collected from residential
and non-residential development projects. Funds targeting extremely-low income
households and/or persons with special needs are a permitted use of the City’s BMR
10
CC 11-19-20
10 of 19
3
AHF. The remaining $115,000 will come from services and funding from the County of
Santa Clara and Housing Trust Silicon Valley, as well as donations from public/private
partnerships. Staff will continue to work closely with community partners, including
potential funders, to explore additional efforts to support unhoused members of our
community.
WHEREAS, Abode Services, is a Bay Area nonprofit dedicated to ending
homelessness by assisting low-income, un-housed people, including those with special
needs, to secure stable, supportive housing; and to be advocates for the removal of the
causes of homelessness; and
NOW THEREFORE BE IT RESOLVED that the City Council finds that the
adoption and implementation of this Resolution is not a project under the requirements
of the California Environmental Quality Act, together with related State CEQA
Guidelines (collectively, “CEQA”) because it has no potential for resulting in physical
change in the environment. In the event that this Resolution 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 that the action
approved may have a significant effect on the environment. CEQA applies only to
actions which have the potential for causing a significant effect on the environment.
Where it can be seen with certainty that there is no possibility that the activity in
question may have a significant effect on the environment, the activity is not subject to
CEQA. In this circumstance, the proposed action to contribute emergency funding to
assist unhoused individuals would have no or only a de minimis effect on the
environment because it would improve environmental conditions at the current
encampment. The foregoing determination is made by the City Council in its
independent judgment.; and
BE IF FURTHER RESOLVED THAT the City Council of the City of Cupertino
hereby approves Budget Modification #2021-107 transferring $200,000 in existing
appropriations from the General Fund to the Below Market Rate Housing Special
Revenue Fund; and
BE IT FURTHER RESOLVED that the City Council of the City of Cupertino
hereby recommends approval of the BMR AHF emergency assistance funds; and
BE IT FURTHER RESOLVED that the City Council of the City of Cupertino
authorizes a $200,000 contribution in BMR AHF emergency assistance funds to Abode
Services to assist unhoused residents of the Wolfe Road encampment; and
BE IT FURTHER RESOLVED that the City Council of the City of Cupertino
authorizes the City Manager to negotiate and execute an agreement with Abode Services
and any contracts necessary to facilitate the emergency assistance to individuals
11
CC 11-19-20
11 of 19
4
experiencing homelessness.
PASSED AND ADOPTED at a special meeting of the City Council of the City of
Cupertino this 19th day of November, 2020 by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
__________________
Steven Scharf, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
12
CC 11-19-20
12 of 19
CITY OF CUPERTINO
Agenda Item
20-8432 Agenda Date:
11/19/2020 Agenda #: 2.
Subject:Proposed consent to Shute, Mihaly & Weinberger, LLP’s (SMW) representation of the County of
Santa Clara (County) in connection with matters related to the Santa Clara Valley Water District’s proposed
modifications to the Anderson Dam to address seismic issues (Anderson Dam Matter).
Consent to SMW’s representation of the County in connection with the Anderson Dam Matter and authorize
the City Manager to execute a consent to SMW’s concurrent representation of the City and the County and
waiver of potential conflicts of interest that might arise out of such concurrent representation (Attachment A).
CITY OF CUPERTINO Printed on 11/18/2020Page 1 of 1
powered by Legistar™13
CC 11-19-20
13 of 19
November 18, 2020
Dear Mayor, Vice Mayor, and Councilmembers:
At my request, the City Manager has added the following item to the agenda for the
November 19, 2020 special City Council meeting:
Subject
Proposed consent to Shute, Mihaly & Weinberger, LLP’s (SMW) representation of the
County of Santa Clara (County) in connection with matters related to the Santa Clara
Valley Water District’s proposed modifications to the Anderson Dam to address seismic
issues (Anderson Dam Matter).
Recommended Action
Consent to SMW’s representation of the County in connection with the Anderson Dam
Matter and authorize the City Manager to execute a consent to SMW’s concurrent
representation of the City and the County and waiver of potential conflicts of interest
that might arise out of such concurrent representation (Attachment A).
Discussion
SMW provides City Attorney services to the City of Cupertino, and in that capacity has
been providing legal services to the City on a wide range of matters (City Matters), some
of which may now or in the future require the Firm to advocate for the City’s interests
before the County Board of Supervisors or County staff, and which are or may
potentially be adverse to the County. In particular, the Firm represents the City in
connection with applications that the Lehigh Southwest Cement Company (Lehigh) has
submitted to the County for a reclamation plan amendment for its Permanente Quarry
and that the Stevens Creek Quarry, Inc. (SCQ) has submitted to the County for a use
permit and reclamation plan amendment for its Stevens Creek Quarry, both of which are
located in the County west of Cupertino and in which the City and County are presently
or may become adverse (Quarry Matters). On behalf of the City, the Firm has submitted
comments to the County arguing that application materials submitted by both Lehigh
and SCQ are inadequate and lack required information. The Firm anticipates submitting
additional comments regarding both of the Quarry Matters. It is possible that the Firm
could file litigation against the County in this these matters.
14
CC 11-19-20
14 of 19
The County has recently approached SMW requesting SMW’s legal services related to
the unrelated Anderson Dam Matter. The Anderson Dam Matter is unrelated to the
Quarry Matters or any of the City Matters. However, because SMW’s concurrent
representation of the City and the County would put SMW in a position of representing
clients whose interests are adverse or potentially adverse in a given matter, before SMW
may represent the County in the Anderson Dam Matter, the California Rules of
Professional Conduct require informed written consent to joint representation and a
“conflict waiver” (i.e. permission) from both the City and County. It is SMW’s
understanding that the County has already agreed to the conflict waiver with respect to
SMW’s concurrent representation of the City and the County. SMW is asking the City
of Cupertino City Council to consent to the concurrent representation and waive
conflicts that might arise out of the concurrent representation.
The Consent to Concurrent Representation and Waiver attached to this letter explains
that if a future conflict between the City and the County should arise and cannot be
resolved such that, in SMW’s view, it is untenable for SMW to continue concurrently
representing both clients, SMW would withdraw from its representation of the County
and continue to represent the City. Further, to minimize any risks of inadvertent
disclosure of confidential information, SMW will establish an ethical wall to ensure
those working on the Quarry Matters will not work on or share confidential documents
or confidential information with attorneys in the firm representing the County on the
Anderson Dam Matter and vice versa.
The City has the option of retaining legal counsel to advise you regarding this proposed
consent to current representation. I encourage you to seek such independent counsel
regarding the import of this consent, if you so desire, and would emphasize that you
remain completely free to seek independent counsel at any time even if you decide to
agree to concurrent representation.
Should the City Council agree to SMW’s concurrent representation of the City and
County, I request that the City Council direct the City Manager to execute the attached
Consent to Concurrent Representation and Waiver.
Sincerely,
Heather Minner
City Attorney
15
CC 11-19-20
15 of 19
396 HAYES STREET, SAN FRANCISCO, CA
94102
T: (415) 552 -7272 F: (415) 552 -5816
www.smwlaw.com
HEATHER MINNER
Attorney
minner@smwlaw.com
November 18, 2020
Via Electronic Mail Only
City of Cupertino
Mayor Steven Scharf
Cupertino City Hall
10300 Torre Avenue
Cupertino, CA 95014-3202
Re: Consent to Concurrent Representation
Dear Mayor Scharf:
As you know, Shute, Mihaly & Weinberger LLP (the “Firm”) currently
provides City Attorney services to the City of Cupertino (“Client”), and in that capacity
has been providing legal services to the Client on a wide range of matters (“City
Matters”), including matters located in the County of Santa Clara (“County”). In
particular, the Firm represents the Client in connection with applications that the Lehigh
Southwest Cement Company (“Lehigh”) has submitted to the County for a reclamation
plan amendment for its Permanente Quarry, and that the Stevens Creek Quarry, Inc.
(“SCQ”) has submitted to the County for a use permit and reclamation plan amendment
for its Stevens Creek Quarry (together, the “Quarry Matters”).
As we have discussed, the Firm has been asked to represent the County of
Santa Clara (“County”) in connection with Santa Clara Valley Water District’s proposed
modifications to the Anderson Dam to address seismic issues (“Anderson Dam Matter”).
We understand that the County is primarily concerned about the potential impacts on
County parklands from inundation.
We do not believe that there is any present, actual conflict of interest
between our present representation of Client in the City Matters and our proposed work
for County in the Anderson Dam Matter. The Anderson Dam Matter is unrelated to any
16
CC 11-19-20
16 of 19
City of Cupertino
November 18, 2020
Page 2
City Matters of which we are aware, including the Quarry Matters, and we do not believe
that we have received any confidential communication from Client in the City Matters
that would be relevant to our work for County in the Anderson Dam Matter, and we do
not expect to receive any confidential communication from County in the Anderson Dam
Matter that would be relevant to our work for Client in the City Matters.
Notwithstanding the foregoing, our concurrent representation of Client in
the City Matters and County in the Anderson Dam Matter could put the Firm in a position
of representing two clients whose interests are adverse or potentially adverse in a given
matter. For instance, on behalf of Client, the Firm has submitted comments to the County
arguing that application materials submitted by both Lehigh and SCQ are inadequate and
lack required information. The Firm anticipates submitting additional comments
regarding both of the Quarry Matters. It is possible that the Firm could file litigation
against the County in this these matters. It is also possible that other City Matters may in
the future require the Firm to advocate for Client’s interests before the County Board of
Supervisors or County staff, which interests may be adverse to the County. Client may
also have matters not before the County that are nonetheless adverse to the County’s
interests. For example, the Association of Bay Area Governments is undergoing the sixth
housing element cycle Regional Housing Needs Allocations (RHNA) to local
jurisdictions within the Bay Area, and it is possible that the Firm, on behalf of Client,
may comment on the draft RHNA methodology and/or allocations, and/or may appeal
final draft RHNA allocations. In such an instance, it is possible that such comments or
appeals may be adverse to the County. The potential for such a situations gives rise to
the possibility of divided loyalty on the part of our Firm.
Although we are not currently aware of any actual or reasonably
foreseeable adverse effects of such potential divided loyalty in this case, it is possible that
such effects may arise in a given matter. Accordingly, we are seeking Client’s informed
written consent to that work prior to undertaking any work for County.
Should an actual conflict arise in a given matter, we will endeavor to
apprise you promptly of the conflict. The Firm would work with Client and County to see
if the conflict could be resolved or, if the law permits, both clients would agree to waive
the conflict of interest allowing this Firm’s continued concurrent representation of both
clients. If, however, the conflict could not be resolved such that, in the Firm’s view, it is
untenable for us to continue representing both clients, we may not be able to do so. If that
were to happen, the Firm will cease its representation of County with regard to the
Anderson Dam Matter.
17
CC 11-19-20
17 of 19
City of Cupertino
November 18, 2020
Page 3
To minimize any risks of inadvertent disclosure of confidential information,
the Firm will establish an ethical wall to ensure those working on the Quarry Matters will
not work on or share confidential documents or confidential information with attorneys in
the firm representing the County on the Anderson Dam Matter and vice versa. With
respect to the other City Matters, if any actual direct adversity with the County arises in
the future, the Firm will alert Client promptly and will establish an ethical wall with
respect to the other City Matter in which the adversity arises, or take such alternative
measures as the Client and Firm may agree, to minimize the risks of inadvertent
disclosure.
You have the option of retaining legal counsel to advise you regarding this
proposed consent to current representation. I encourage you to seek such independent
counsel regarding the import of this consent, if you so desire, and would emphasize that
you remain completely free to seek independent counsel at any time even if you decide to
sign this Agreement. Notwithstanding the risks described in this letter, you have advised
us that you do not wish to seek other counsel at this time.
By signing and returning this letter, you will consent to and waive any
conflicts arising from this Firm’s concurrent representation of Client in the City Matters
and the County in the Anderson Dam Matter, and agree not to assert any conflict of
interest or otherwise seek to disqualify this firm from representing County in the
Anderson Dam Matter notwithstanding any adversity that exists or may develop in the
future. We are also requesting that County similarly consent to such concurrent
representation.
If you agree, please sign below and return a copy to me. If you have any
questions about this letter, please do not hesitate to contact me.
Very truly yours,
SHUTE, MIHALY & WEINBERGER LLP
Heather Minner
18
CC 11-19-20
18 of 19
City of Cupertino
November 18, 2020
Page 4
ACCEPTED AND AGREED:
City of Cupertino
__________________________________
Name: Deborah Feng
Title: City Manager
Date: ____________________________
1310998.1
19
CC 11-19-20
19 of 19