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CC 11-01-05 I- CUPEIQ1NO APPROVED MINUTES CUPERTINO CITY COUNCIL Regular Meeting Tuesday, November I, 2005 PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor Kwok called the meeting to order in the Council Chamber, 10350 Torre A venue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL City Council members present: Mayor Patrick Kwok, Vice-Mayor Richard Lowenthal, and Council members, Sandra James, Dolly Sandoval, and Kris Wang. Council members absent: none. PUBLIC COMMENTS REGARDING CLOSED SESSION - None CLOSED SESSION - None CEREMONIAL MATTERS - PRESENTATIONS - None POSTPONEMENTS Lowenthal/Sandoval moved and seconded to remove item No.19, from the agenda. The motion carried unanimously. WRITTEN COMMUNICATIONS The City Clerk announced that the following items were distributed at the meeting: . For item No. II, a typed message from Cathy Helgerson regarding water wells and the possible contamination in Cupertino. . For item No. 12, an email from the Portofino Villas Homeowners Association regarding property maintenance. November 1, 2005 Cupertino City Council Page 2 ORAL COMMUNICATIONS Deborah Hill said there has been an improvement in safety because of increased Sheriff patrols of the streets. She said that cyclists need to be more aware of hazards and traffic on the road, and she asked drivers to be especially careful of cyclists now that it's getting dark sooner. She said that Rainbow, Stelling and McClellan Drive are still very dangerous for cyclists and pedestrians. Dennis Whittaker said that Council recently took a vote to not place so much emphasis on pedestrian orientation over automobiles. He talked about the Vallco project and said it is a very important artery for people going to work, and he asked Council not to allow a negative impact on this busy street. He also said he didn't understand how the Council would not consider an Economic Development Plan as a part of the General Plan, and he was concerned that the City was not preserving its housing stock, and that the City needs one- and two-bedroom units that are more affordable. Bob Levy provided a newspaper article titled "View Tax Triggers Revolt in Rural New Hampshire." He said that Cupertino had the equivalent situation, because property is evaluated on location and the views from one's home. He said that concept has been lost here, and there are many more big buildings, such as those at Stevens Creek and DeAnza. He said that Council should give consideration to those who already live in the community, and why they came here, and why they choose to stay. Levy said he hoped to see three new Council members as a result of the election next week. Mayor Kwok said the upcoming election has important statewide and local measures, as well as six candidates for City Council. He said that every vote counts, and he asked all registered voters to exercise their right to vote. CONSENT CALENDAR Sandoval/James moved and seconded to approve the items on the Consent Calendar as recommended, with the exception of item Nos. I and 7, which were pulled for discussion. Vote: Ayes: James, Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: None. 2. Adopt resolutions accepting Accounts Pavable for October 14 and 21, Resolution Nos. 05-175 and 05-176. 3. Adopt a resolution accepting Payroll for October 21, Resolution No. 05-177. 4. Accept an application for an Alcoholic Beverage License for Fusion Korea, 20956 Homestead Road, Suite A-I (existing restaurant). 5. Adopt a resolution amending to Part 11, Section 3 of the Administrative Rules and Regulations of the Personnel Code in compliance with current State and Federal law pertaining to harassment, discrimination and retaliation, Resolution No. 05-178. November 1,2005 Cupertino City Council Page 3 6. Receive a written report on events/festival waivers. (This item was continued from October 18). 8. Adoption a resolution accepting a Roadwav Easement for Sesharao Patchipala and Padmavathi Patchipala, husband and wife as community property with right of survivorship, 10455 Byrne Avenue, APN 357-12-037, Resolution No. 05-180. 9. Adoption a resolution accepting an Improvement Agreement for sidewalk, driveway approach, curb and gutter work, and street improvements with Sesharao Patchipala and Padmavathi Patchipala, husband and wife as community property with right of survivorship, 10455 Byrne Avenue, APN 357-12-037, Resolution No. 05-181. 10. Disadvantaged Business Enterprises (DBE) Program for Federal-aid contracts: a) Adopt a resolution establishing a Disadvantaged Business Enterprises Participation Goal for federally funded projects for the Federal Fiscal Year 2005- 06, Resolution No. 05-182 b) Adopt a resolution adopting a method to be used in federal-aid contracts to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor to any subcontractor, per Code 40 of the Federal Regulations (CFR) 26.29 and Chapter 9 of the California Department of Transportation Local Assistance Procedures Manual, Resolution No. 05-183 c) Adopt a resolution authorizing the City Manager to appoint a Disadvantaged Business Enterprise liaison officer, Resolution No. 05-184 ITEMS REMOVED FROM THE CONSENT CALENDAR (above) I. Approve the minutes from the October 4 City Council meeting. Lowenthal/Sandoval moved and seconded to approve the minutes with a correction to page 5; last paragraph of Item No.9, the word "gate" should be changed to "median" so that the sentence reads, "Public Works Director Ralph Qualls recommended leaving the median as a traffic-calming device." The motion carried unanimously. 7. Adopt a resolution accepting the Final Map for Adobe Terrace, Developer Pinn Bros., Tract No. 9762, 20128 Stevens Creek Boulevard, Resolution No. 05-179. Community Development Director Steve Piasecki explained that the City Council had already adopted the tentative map for this project, that the final map is in compliance, and this is a ministerial action. November 1, 2005 Cupertino City Council Page 4 Sandoval/James moved and seconded to adopt Resolution No. 05-179. The motion carried with Council member Wang voting no. She said that she voted no to be consistent, because she did not feel that this project complies with the provisions of the Heart of the City Specific Plan. PUBLIC HEARINGS 11. Consider an appeal of the Planning Commission's approval of Application No. TM-2004- 05, Wayne Aozasa (CA Water Service), located on Greenleaf Dr., APN 326-33-107. (This item was continued from October 18): (a) Tentative Map to subdivide a .95-acre parcel into four lots ranging from approximately 6,430 square feet to 8,880 square feet, plus a remainder of 11,500 square feet Associate Planner Gary Chou and Public Works Director Ralph Qualls reviewed a PowerPoint slide show that highlighted the staff report and the findings of the water quality study. Qualls said the laboratory test results concluded that no current water quality issues that would effect human health were detected from the current test of existing drinking water, and under current requirements, there is no construction activity or vehicular traffic that would affect the water in the production well on the development site or would impact the well itself. He said that all tests were conducted in accordance with all Federal, State, and local requirements by an unbiased, independent, certified professional practitioners. Gary Chou said he had also contacted the Environmental Protection Agency, the San Francisco Regional Water Quality Control Board, and the Santa Clara Valley Water District, and they did not have any concerns about the project or the water quality. Applicant Cathy Helgerson noted that there are actually two wells on Greenleaf. The one on the west end near Garden Gate was abandoned on September 23 of this year at the instigation of the city. The other is on the east end, on the property in question. She asked if the correct well was tested, and she expressed her concern that wells are not tested before they are abandoned. She also said she was concerned about contamination of air, water, and soil from local industry, including Apple Computer. She referred to the lab reports and said that non-detectable levels mean they are below safe levels set by state and federal agencies, but there could still be contaminants that are on the borderline. She said she had approached Assemblywoman Sally Lieber about legislation to govero wells. Helgerson said she had contacted the Environmental Protection Agency and had been told they would be conducting an investigation, including the well that has been abandoned, and she had told the new homebuilder that he could be liable. She also said that there will be new legislation forthcoming regarding contamination by metals, and the City November 1,2005 Cupertino City Council Page 5 should wait for the new information. Helgerson referred to Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, and suggested that this property be designated a natural or rural preserve. Sean Hefner, the Director for Corporate Development for California Water Service said that the reports and test results speak for themselves. He said that his company operates over 24 agencies through California, plus Hawaii and Washington, and the water quality in Cupertino is better than most of those locations, and it meets all state and federal guidelines. Hefner also clarified that the well which was tested by the testing firm was the well owned by the California Water Service Company at the east end of Greenleaf on the property that is the subject of the appeal, not the well at the west end of Greenleaf near the Garden Gate School which was mentioned previously. Mike Foulkes, representing Apple Computer, said his company has taken no position on this subdivision, but he wished to point out how important it is to have an appropriate buffer between industrial and residential zones. He said there are no real environmental problems but there will always be a tension between disparate uses such as homes and industrial uses, and he asked the City Council to address that conflict on future applications. Deborah Hill said she thought the laboratory test results are sufficient and she was glad to know that the City has such high-quality drinking water. Discussion followed about how the property around the well is to be maintained by the Water District, and CC&R's will specifY the City future homeowners as beneficiaries. James/Lowenthal moved and seconded to deny the appeal. Motion carried with Wang voting no. Wang explained that she voted no because she felt that this was not the best location for a single family home and she did not think this area was appropriately zoned. 12. Consider Application No. M-2005-02, Dan Ikeda (PSS Ventures, LLC), 20415 Via Paviso, APN 315-01-213 through 222, regarding a modification of a use permit (8U-94) to convert a 140-unit apartment project (Aviare) to for-sale residential condominiums. (This item was continued from October 18). Contract Planner Patricia Schimpp used a PowerPoint presentation to highlight the staff report. She noted that page 12-6 of the packet should be corrected to say that each resident has "received the correct addendum", not "signed the correct addendum. Discussion followed regarding how the density was calculated, what the anticipated rental costs will be, and the City's below-market-rate (BMR) housing categories. David Nix said he is a consultant working with the applicant on the conversion process. He said that they were in agreement with all conditions of approval except that regarding the lease addendum, and would accept the corrected condition that that each resident must have "received the correct addendum", not "signed the correct addendum." November 1, 2005 Cupertino City Council Page 6 Frank Nicoletti, General Counsel for SCS Development Company, said that the conditions of approval recommended by staff would require Corsica to maintain the parking easement between Corsica and Portofino, and as soon as this conversion project is resolved they plan to negotiate to deed the property over to Porto fino. Sharon Kohlmannsleighner, Vice President of the Portofino Homeowners Association, distributed a letter from the Association and talked about the ongoing lack of maintenance of the parking spaces and landscaping by the A viare Apartments property owners. She said that the Porto fino Homeowners Association has agreed to take over ownership and responsibility, and listed 10 recommended steps in this process. She asked that the conversion to condominiums not be considered complete until the maintenance issues have been resolved. Jennifer Griffin said that Council approval of this condominium conversion would set a dangerous precedent because it result in the loss of apartment rentals, which are needed because they are affordable for many different types of families. Senior Planner Vera Oil explained that this is the first time in many years that the vacancy rates have been high enough for rental units to qualifY for conversion to condominiums, and that it is a fluctuation caused by the marketplace. Council member Lowenthal suggested a clarification to the resolution title, and Council member Sandoval asked if there was another building location, besides Building 6, that could be used for the rental units, because it is right next to the freeway. Mr. Nix said that Building 6 had additional soundproofing and Lexan panels on the patios; it was the most removed from the other buildings, so there was less visual intrusion from the 2nd and 3rd floor windows looking in. He also noted that the BMR units were disbursed throughout the project, but he would accept a condition that the rental units go into any building north of Via Paviso. Council member Wang noted that if the rental building is no longer Building 6, the current renters would have to move. Mayor Kwok said he was conceroed about the loss of rental units. James/Sandoval moved and seconded to approve the conversion with the following changes. The motion carried with Kwok and Wang voting no. 1. Change the title of the model resolution to reflect a conversion to 120 for-sale units and 20 for-rent units. 2. Insist on a landscape plan. 3. Change the BMR rental building from Building No.6 to any building north of Via Paviso Drive. November 1, 2005 Cupertino City Council Page 7 4. Add a condition that specifies that for-sale BMR units shall be 50% moderate- income and 50% median-income households. 5. Correct the condition (page 12-6 of the packet) to say that each resident has "received the correct addendum", not "signed the correct addendum." 13. Consider adopting a resolution approving an amendment to the 2005-06 Communitv Development Block Grant (CDBG) Annual Action Plan, Resolution No. 05-185. Wang/James moved and seconded to adopt Resolution No. 05-185 approving the amended Annual Action Plan, and to authorize staff to submit it to the Department of Housing and Urban Development (HUD). The motion carried unanimously. UNFINISHED BUSINESS - None NEW BUSINESS 14. Adoption a resolution approving a semi-rural designation to eliminate the requirement for sidewalks on Scenic Boulevard, east of Carmen Road, pursuant to Ordinance No. 1925, Resolution No. 05-186. Mayor Kwok said that he would recuse himself from participation on this item because he lived on Scenic Boulevard. At 9:45 p.m., he was absent from the meeting. James/Wang moved and seconded to adopt Resolution No. 05-186. The motion carried with Kwok abstaining. Mayor Kwok returned to the dais at 9:50 p.m. 15. Review the bids and award the contract for Reconstruction of Curbs. Gutters. and Sidewalks, Project No. 2005-08, to CB Construction Co. in the amount of $423,175.00, and approve a contingent amount of up to $60,000.00 for additional work that may be identified and approved by the Director of Public Works, for a total of$483,175.00. James/Wang moved and seconded to award the contract to CB Construction Company in the amount of $423,175.00, and to approve a contingency amount of up to $60,000.00 for additional work that may be identified and approved by the Director of Public Works, for a total of$483,175.00. The motion carried unanimously. 16. Receive a report on commissions and committees with terms expiring January 15, 2005, select an application deadline date of December 23, and interview dates of January 9 and 10, 2006; and extend the expiration of commissions from January 15 to January 30 beginning in 2006. (This item was continued from October 18). November 1, 2005 Cupertino City Council Page 8 Lowenthal/Sandoval moved and seconded to set an application deadline of December 23; to hold interviews on January 9 and 10 at 6:00 p.m.; and to direct staff to prepare an ordinance to change the term expiration date from January 15 to January 30. 17. Receive the resignation from Technology, Information, and Communications Commissioner Charlon McIntosh, and initiate the process to fill the unscheduled vacancy. (This item was continued from October 18). Lowenthal/W ang moved and seconded to accept the resignation, and directed that this vacancy be included in the annual recruitment process. The motion carried unanimously. 18. Consider canceling or chancing the meeting of December 20, 2005. (No documentation in packet). (This item was continued from October 18). Council concurred to cancel the meeting of December 20, and to add a meeting on Tuesday, November 29, from 5:00-7:00 for the City Manager's evaluation. If there is need for further discussion on the General Plan, that may also be added to the agenda of November 29. 19. Conduct the first reading of Ordinance No. 1970 establishing 30-minute drop-off zone on Fort Baker Drive: "An Ordinance of the City Council of the City of Cupertino Amending Cupertino Municipal Code, Chapter 11.27, Section 11.27.145, Relating to Designation of Preferential Parking Zones, and Chapter 11.24, Section 11.24.170 Relating to Parking Limitation On Certain Streets, Replacing Preferential Parking With a 30-Minute Parking Zone On the West Side of Fort Baker Drive Between Presidio Drive and Hyannisport Drive. " Lowenthal/Sandoval moved and seconded to remove this item from the agenda. The motion carried unanimously. ORDINANCES 20. Conduct the second reading of Ordinance No. 1969: "An Ordinance of the City Council of the City of Cupertino Modifying a Development Agreement (I-DA-90) to Extend the Term of the Agreement to August 15, 2009 to Require a Hotel Use for Future Development in the Northeast Portion of the Property, to Require a Use Permit for Any Hotel Other Than At the Rose bowl Site, to Require a Use Permit For A Parking Garage Over Three Stories Located North of Macy's, To Require Neighborhood Meetings Prior to Planning Commission and City Council Public Hearings Regarding the Height and design of the proposed parking structure located north of Macy's at Vallco." Dennis Whittaker expressed his concero about taking action on this item before the measures are voted on this month. He said that everyone wants Vallco to be successful, but this action would take away the vote of the citizens and all the hard work done on the General Plan. He asked if the condos are built whether there will be an opening so the kids can get through the wall to go to school. November 1, 2005 Cupertino City Council Page 9 Jennifer Griffin objected to the 3-year extension for this agreement. She said there was not enough input from the public; there are still unanswered questions about the buildings planned for the site; this is a shopping mall use and there shouldn't be residential or hotel uses; there will be negative impacts on the schools from this project and the Toll Brothers project; and she had concerns about how the housing allocations will be distributed. Michael Pyle agreed with the previous speakers. He asked for a better clarification of a 3- story garage, and said that he had just come from a neighborhood meeting with the developers, at which a 4-story, 5-level garage was discussed. Steve Piasecki noted that it was a lack of clarification in the language of the measures that triggered this conflict in how to interpret the height limitations, so the Vallco owners had to corne to City Council for clarification before the election. He said that a 3-story limit could be described as approximately 30 feet, not counting mitigation walls (which serve to keep sound and lights away from the neighborhood). Applicant Emily Chen and Mike Rohde talked about the Vallco meeting with the neighborhood that had occurred earlier in the evening, and said the neighbors had been very reasonable and cooperative, and the Vallco owners would do their best to meet everyone's needs. Discussion followed regarding the impact of the parking garage on the immediate area. Chen showed photographs of the trees that would screen the proposed garage, and said they would agree to a use permit for any parking garage over 3 stories, or approximately 30 feet. She explained that they cannot put a level underground because of a very large PG&E transformer. She said it was never their intention to put in a 6-or 7- story garage, but was just a rumor that had gotten started somewhere. She also said that they will thoroughly notifY interested parties of their progress and any proposed changes, and anyone is welcome to contact them for information or arrange for a tour. Councilwoman Sandoval urged that the Vallco owners organize a neighborhood group to keep everyone informed. Lowenthal/James moved and seconded to read the ordinance by title only and that the City Clerk's reading would constitute the second reading thereof, with the following conditions: I. The height of the parking garage can be up to 32 feet above before a use permit is required; and (2) the parking garage shall be mitigated for privacy. Ayes: James, Lowenthal, Sandoval, and Wang. Noes: Kwok. Absent: None. Lowenthal/James moved and seconded to enact Ordinance No. 1969. Ayes: James, Lowenthal, Sandoval, and Wang. Noes: Kwok. Absent: None. STAFF REPORTS - None November 1, 2005 Cupertino City Council Page 10 COUNCIL REPORTS Council members highlighted the activities of their committees and various community events. ADJOURNMENT At 10:55 p.m. the meeting was adjourned. ~ ~ ity Clerk For more information: Staff reports, backup materials, and items distributed at the meeting are available for review at the City Clerk's Office, 777-3223, and also on the Internet at www.cupertino.org.Click on Agendas & Minutes/ City Council/ Packets. Most Council meetings are shown live on Cable Channel 26, and are available at your convenience from our web site. Visit www.cupertino.org and click on Watch Meetings. Videotapes are available at the Cupertino Library, or may be purchased from the Cupertino City Channel,777-2364.