Cupertino City Council
December 6, 2022

1 IN-PERSON AND TELECONFERENCE MEETING
For more information:
(408) 777-3200 │ www.cupertino.org

AGENDA OF THE

CUPERTINO CITY COUNCIL
Tuesday, December 6, 2022
Televised Regular City Council Meeting (6:45)

CITY COUNCIL

DARCY PAUL, MAYOR

LIANG CHAO, VICE MAYOR

KITTY MOORE, COUNCILMEMBER

HUNG WEI, COUNCILMEMBER

JON ROBERT WILLEY, COUNCILMEMBER
CC 12-06-2022
1 of 759

CONDUCT OF BUSINESS
The Mayor is the presiding officer of the City Council. Any member of the public may speak on any item on the agenda for up to three minutes. All statements and questions must be addressed to the Mayor.

City Council hearings serve as a venue for the discussion of sometimes divergent points of view. Please respect the opinions of others and refrain from cheering or clapping. That may delay the meeting or intimidate other persons wishing to express alternate views. Actions that disrupt the meeting will result in a warning, followed by removal if disruption continues.

The proceedings of the meeting are recorded, therefore members of the audience who address the City Council must come to the lectern/microphone, and are requested to complete a Speaker Card and identify themselves. Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments.

FLOWCHART FOR HEARING ITEMS:

Mayor introduces
agenda item
Councilmembers report any site
visits or outside communications.

Staff reports and makes
recommendation
Applicant or
Appellant makes
presentation
(up to 10 mins.)
Speakers submit a Request to
Speak card, and are allowed up to
3 minutes per individual. Council
members may ask questions of
speakers.

Mayor invites members of
the public to speak about
the agenda item
For appeals of approvals, the
applicant may respond to
appellants presentation.

City Council
votes on the
agenda item
Council holds initial discussions
and/or a Councilmember makes a
motion and obtains a second.

The City Council then discusses and
deliberates on the motion(s) and
votes.

Mayor closes the
hearing
Councilmembers ask questions.

PUBLIC HEARINGS
The City Council is required by law to
hold public hearings on certain matters
prior to making its decision. Notice to
interested parties is given by legal
advertisement in the local newspaper of
general circulation at least 10 calendar
days preceding the hearing date.

Applications requiring public hearings
include change of zoning, variances, use
permits, and tentative maps.

COUNCIL MEETINGS
The City Council regularly meets the first
and third Tuesdays of each month. These
meetings are held in the Council
Chamber of the Cupertino Community
Hall, 10350 Torre Avenue, at 6:45 p.m.

Closed sessions, when needed, are
normally held at 6:00 p.m. Closed
sessions cover items such as personnel,
litigation, or the sale , purchase, or lease
of property. The law requires certain
actions taken in closed session to be
reported in open session.

Urgent business, holidays, or election
days may trigger special or adjourned
meetings. These meetings will be noticed
beforehand.

AGENDAS, MINUTES, AND PACKETS

AVAILABLE ON THE WEB
Agendas, minutes, and packets for
current and prior City Council and
Planning Commission meetings are
available at www.cupertino.org, or you
can purchase the items on CD.

CITY COUNCIL DECISION IS FINAL
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
www.http://www.cupertino.org/index.as
px?page=125 for a reconsideration
petition form.

Mayor Invites
applicant/appellant to
repond to public
CC 12-06-2022
2 of 759

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference Tuesday, December 6, 2022
6:45 PM
Televised Regular City Council Meeting (6:45)

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) 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 to comment on an item on the agenda may do so in the following ways:
1) Appear in person at Cupertino Community Hall. Members of the audience who address the City Council must come to the lectern/microphone, and are requested to complete a Speaker Card and identify themselves. Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments. 2) E-mail comments by 4:30 p.m. on Tuesday, December 6 to the Council at [email protected]. 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.
3) E-mail comments during the times for public comment during the meeting to the City Clerk at [email protected]. The City Clerk will read the emails into the record, and display any attachments on the screen, for up to three 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 [email protected] prior to speaking.

Members of the public may provide oral public comments during the meeting as follows:

CC 12-06-2022
3 of 759
City Council Agenda December 6, 2022
Oral public comments will be accepted during the meeting. Comments may be made during “oral communications” for matters not on the agenda, and during the public comment period for each agenda item.

Teleconferencing Instructions
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_7WdQzUK5QpGk9hvaGEtulQ Phone
Dial: 669-900-6833 and enter Webinar ID: 948 2036 6656 (Type *9 to raise hand to speak, *6 to unmute yourself). 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: 948 2036 6656
SIP: [email protected]
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,” or,

CC 12-06-2022
4 of 759
City Council Agenda December 6, 2022
if you are calling in, press *9. 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.

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 48 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.

PLEDGE OF ALLEGIANCE

ROLL CALL

CEREMONIAL MATTERS AND PRESENTATIONS

1. Subject: Consider a certificate of appreciation to Captain Rich Urena for his years of service to the Cupertino community as West Valley Patrol Captain Recommended Action: Present certificate of appreciation to Captain Rich Urena for his years of service to the Cupertino community as West Valley Patrol Captain A - Certificate of Appreciation

2. Subject: Consider certificates of appreciation recognizing Rudy Lomas and Kane Wolfe for their years of service to the City of Cupertino upon their retirement Recommended Action: Present certificates of appreciation recognizing Rudy Lomas and Kane Wolfe for their years of service to the City of Cupertino upon their retirement A - Certificate of Appreciation
B - Certificate of Appreciation
RECESS (15 min)

POSTPONEMENTS AND ORDERS OF THE DAY

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

CC 12-06-2022
5 of 759
City Council Agenda December 6, 2022
not listed on the agenda. A councilmember may, however, briefly respond to statements made or questions posed by speakers. A councilmember may also ask a question for clarification, provide a reference for factual information, request staff to report back concerning a matter, or request that an item be added to a future City Council agenda in response to public comment.

REPORTS BY COUNCIL AND STAFF

3. Subject: Brief reports on councilmember activities and brief announcements Recommended Action: Receive brief reports on councilmember activities and brief announcements

4. Subject: Report on Committee assignments
Recommended Action: Report on Committee assignments

5. Subject: Report on Subcommittee assignments
Recommended Action: Report on Subcommittee assignments

6. Subject: City Manager update
Recommended Action: Receive City Manager update on City business

7. Subject: Department Update - Community Development
Recommended Action: Receive update regarding the Community Development Department
CONSENT CALENDAR (Items 8-12)
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.

8. Subject: Consider approval of the November 15 City Council minutes Recommended Action: Approve the November 15 City Council minutes A - Draft Minutes

9. Subject: Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period December 6, 2022 through January 5, 2023 pursuant to the Brown Act, as amended by AB 361 Recommended Action: Adopt Resolution No. 22-142 authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the December 6, 2022 through January 5, 2023 pursuant to the Brown Act, as amended by AB 361

CC 12-06-2022
6 of 759
City Council Agenda December 6, 2022
Staff Report
A - Draft Resolution
B – Adopted Resolution No. 22-133
C – Health Officer Recommendation Regarding Public Governmental Meetings

10. Subject: Consider the OPEB and Pension Trust Investment Policies Recommended Action: Adopt Resolution No. 22-143 accepting the OPEB Policy and adopt Resolution No. 22-144 accepting the Pension Trust Investment Policies Staff Report
A - OPEB Trust Investment Policy
B - OPEB Policy Resolution
C - Pension Trust Investment Policy
D - Pension Investment Policy Resolution

11. Subject: Consider the Mitigation Fee Act - an annual and five-year report for Fiscal Year (FY) 2021-2022
Recommended Action: Adopt Resolution No. 22-145 entitled "A Resolution of the City of Cupertino City Council approving the annual and five -year Development Impact Fee report for FY ending June 30, 2022" to:

1. Make the required findings as identified in the Resolution; and

2. Approve the annual and five-year Development Impact Fee report for the FY ending June 30, 2022, as required by Government Code Section 66000 et seq Staff Report
A - Annual and Five-Year Report
B - Draft Resolution

12. Subject: Consider authorizing the City Manager to award a construction contract with contingency budget for the Blackberry Farm Pool Improvements Capital Improvement Program (CIP) Project
Recommended Action: 1. Authorize the City Manager to award a construction contract in an amount not to exceed 90% of the appropriated project budget limits to the lowest responsive bidder if there are no unresolved bid protests; and

2. Authorize the Director of Public Works to allow a construction contingency budget of 20% of the construction contract amount to address unforeseen conditions discovered during construction
Staff Report
SECOND READING OF ORDINANCES - None

STUDY SESSION

13. Subject: Consider directing staff to prepare a City Ordinance to govern the permitting of small cellular facilities within the public right of way

CC 12-06-2022
7 of 759
City Council Agenda December 6, 2022
Recommended Action: Consider directing staff to prepare a City Ordinance for Council approval to govern permitting of small cellular facilities within the public right of way and provide input on the list of recommended modifications to the regulations listed in the staff report
Presenter: Chad Mosley, Assistant Director of Public Works Staff Report
A - Draft Ordinance
B - Draft Wireless Regulations
C - Guidelines for Encroachment Permit Submittals
D - Small Cell Design Standards

PUBLIC HEARINGS

14. Subject: Consider approval of a proposed development that will include approximately 41,268 sq. ft. of commercial space and 206 residential condominium units. (Application No(s): DP-2022-001, ASA-2022-002, TR-2022-026, TM-2022-003; Applicant(s): Larry Wang (Tectonic Builders Corp.); Location: 10145 N. De Anza Blvd, 10118 Bandley Dr., APN(s): 326-34-066, 326-34-043.)
Recommended Action: Staff recommends that the City Council:

1. Adopt Resolution No. 22-146 adopting an addendum to a previously adopted Mitigated Negative Declaration and approving the Development Permit (DP-2022-001) (Attachment A);

2. Adopt Resolution No. 22-147 approving the Architectural and Site Approval Permit (ASA-2022-002) (Attachment B);

3. Adopt Resolution No. 22-148 approving the Vesting Tentative Map (TM-2022-003) (Attachment C); and

4. Adopt Resolution No. 22-149 approving the Tree Removal Permit (TR-2022-026) (Attachment D)
Presenter: Gian Martire, Senior Planner
Staff Report
A - Draft Resolution for DP-2022-001
B - Draft Resolution for ASA-2022-002
C - Draft Resolution for TM-2022-003
D - Draft Resolution for TR-2022-026
E - Planning Commission Resolution 6964
F - Planning Commission Resolution 6965
G - Planning Commission Resolution 6966
H - Planning Commission Resolution 6967
I - Project Description
J - Letter from Erik Ramakrishnan, Esq. of Berliner Cohen, LLP dated March 23, 2022 and July 18, 2022 K - Marina Plaza Project Initial Study and Mitigated Negative Declaration Addendum No. 1 L - Public Outreach Summary, dated October 10, 2022
M – Project Plans
N – Public Comment

CC 12-06-2022
8 of 759
City Council Agenda December 6, 2022
ORDINANCES AND ACTION ITEMS - None
ORAL COMMUNICATIONS - CONTINUED (As necessary)

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS

ADJOURNMENT
Lobbyist Registration and Reporting Requirements: Individuals who influence or attempt to influence legislative or administrative action may be required by the City of Cupertino’s lobbying ordinance (Cupertino Municipal Code Chapter 2.100) to register and report lobbying activity. Persons whose communications regarding any legislative or administrative are solely limited to appearing at or submitting testimony for any public meeting held by the City are not required to register as lobbyists.

For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 94107; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

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 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 48 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, Cupertino, California 95014, 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 section

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

CC 12-06-2022
9 of 759
City Council Agenda December 6, 2022
written communications are accessible to the public through the City’s website and kept in packet archives. Do not include any personal or private information in written communications to the City that you do not wish to make public, as written communications are considered public records and will be made publicly available on the City website.

CC 12-06-2022
10 of 759

THE CITY COUNCIL AND STAFF

CITY COUNCIL
Cupertino is a General Law city organized under and subject to statutes of the State of California. It is governed by the five‐member City Council with the Mayor as the presiding officer. City Council members are elected at‐large to four‐year, overlapping terms. Each November a mayor and a vice‐mayor are selected by the City Council for a one‐ year term.

The City Council receives advice and assistance from eleven advisory bodies, which are appointed by the Council.

These are the Audit Committee, Bicycle Pedestrian Commission, Fine Arts Commission, Housing Commission, Library Commission, Parks and Recreation Commission, Planning Commission, Public Safety Commission, Sustainability Commission, Teen Commission, and Technology, Information, and Communications Commission.

Council members also serve on a variety of regional bodies, including:
∙ Association of Bay Area Governments
∙ League of California Cities
∙ Santa Clara County (SCC) Cities Association
∙ SCC Emergency Preparedness Council
∙ SCC Library District
∙ SCC Emergency Preparedness Commission
∙ Santa Clara Valley Water Commission and Water District ∙ SCC Transportation Authoritym
∙ West Valley Mayors and Managers
STAFF
The City Manager and the City Attorney are appointed by the Council. The City Manager is responsible for interpreting and carrying out Council policies and direction, and as the chief administrative officer, the City Manager coordinates the many activities of the city and appoints the professional and technical staff. The City Attorney is the advisor to the City Council as a whole.

TYPES OF COUNCIL ACTIONS

ORDINANCES
Ordinances are the means by which the City enacts its local laws. Unless an urgent situation exists, ordinances will first be presented at a Council meeting as a “first reading." At a subsequent Council meeting, there will be a “second reading and adoption." Ordinances go into effect after a waiting period of thirty days, in most cases, during which time the summary of the ordinance is published in a local newspaper approved for this purpose.

RESOLUTIONS
Resolutions and minute orders are the means by which the City Council formally adopts policies or approves specific actions. These go into effect when adopted.

APPEALS
Any interested person, including a Council member, may appeal a Planning Commission or Director of Community Development decision to the City Council. An appeal must be submitted in writing to the City Clerk within 14 calendar days of the mailing of the notice of the decision.

RECONSIDERATION
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 www.http://www.cupertino.org/index.aspx?page=125 for a reconsideration petition form.

CC 12-06-2022
11 of 759
COMMUNICATING WITH COUNCIL
(408) 777‐3195
(408) 777‐3192
(408) 777‐1398
(408) 777‐3139
(408) 777‐3193
(408) 777‐3212
All Council members:

Darcy Paul
Liang Chao
Kitty Moore
Hung Wei
Jon Robert Willey
Executive Assistant
City Hall
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
www.cupertino.org (408) 777‐CITY
Please note: the City Council discourages submission of written materials on the day of the meeting as this does not provide enough time to give the materials fair evaluation.  If  you must provide written materials on the day of the meeting, as least one copy must be given to the City Clerk for the permanent record, and ten copies are preferred.

NEWS AND NOTICES FROM CITY HALL
EMAIL
Sign up for e‐notification of agendas, elections, and other news on the city website at www.cupertino.org/notify

TELEVISION
The City Channel  broadcasts City Council and Planning Commission meetings , as well as agenda previews, public service announcements, and other programs of community interest, on Channel 26 in Cupertino.   The meetings are shown at these times:

Tuesday    (live) 6:45 p.m. Friday (replay) 10:00 a.m.

Thursday  (replay)      7:00 p.m. Saturday   (replay)    9:00 a.m.

INTERNET
City Council and Planning Commission videos are available on demand at www.cupertino.org.   Select  "I Want To, View City Council meetings".

News and community information can also be found at:
https://www.facebook.com/cityofcupertino/
https://twitter.com/CityofCupertino
https://www.instagram.com/cityofcupertino
AUDIO
Tune into  Radio Cupertino, 1670 AM, for  meeting announcements, public service messages, and emergency announcements.

USEFUL TELEPHONE NUMBERS
City of Cupertino  (City Hall) General Information  and Comments (408) 777‐CITY Fire (Emergency) Santa Clara County Fire Dept.  dispatch     911 Fire (Non‐Emergency ) Santa Clara County Fire Dept. (408) 378‐4010 Garbage         Recology South Bay (408) 725‐4020
Gas & Electricity Pacific Gas & Electric (PG&E)  1‐800‐743‐5000 Recreation & Community Quinlan Community Center (408) 777‐3120 Services
Police (Emergency) Santa Clara County Sheriff  dispatch 911 Police (Non‐Emergency) Santa Clara County Sheriff (408) 868‐6600 Public Health          Santa Clara County Public Health (408) 732‐3720 Sanitary Sewers        Cupertino Sanitary District         (408) 253‐7071 Water San Jose Water        (408) 279‐7900
California Water        (650) 917‐0152
CC 12-06-2022
12 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider a certificate of appreciation to Captain Rich Urena for his years of service to the Cupertino community as West Valley Patrol Captain
Present certificate of appreciation to Captain Rich Urena for his years of service to the Cupertino community as West Valley Patrol Captain
File #: 22-11777, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
13 of 759
CC 12-06-2022
14 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider certificates of appreciation recognizing Rudy Lomas and Kane Wolfe for their years of service to the City of Cupertino upon their retirement
Present certificates of appreciation recognizing Rudy Lomas and Kane Wolfe for their years of service to the City of Cupertino upon their retirement
File #: 22-11780, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
15 of 759
CC 12-06-2022
16 of 759
CC 12-06-2022
17 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Brief reports on councilmember activities and brief announcements Receive brief reports on councilmember activities and brief announcements File #: 22-11076, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
18 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Report on Committee assignments
Report on Committee assignments
File #: 22-11088, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
19 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Report on Subcommittee assignments
Report on Subcommittee assignments
File #: 22-11456, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
20 of 759

CITY OF CUPERTINO
Legislation Text
Subject: City Manager update
Receive City Manager update on City business
File #: 22-11097, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
21 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Department Update - Community Development
Receive update regarding the Community Development Department File #: 22-11393, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
22 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider approval of the November 15 City Council minutes Approve the November 15 City Council minutes
File #: 22-10504, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
23 of 759

DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, November 15, 2022

SPECIAL MEETING
At 5:31 p.m., Mayor Paul called the Special City Council Meeting to order in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Darcy Paul, Vice Mayor Liang Chao (5:32), and Councilmembers Kitty Moore, Hung Wei, and Jon Robert Willey. Vice Mayor Liang Chao attended the meeting via teleconference.

STUDY SESSION

1. Subject: Status update on the 6th Cycle Housing Element update Recommended Action: Receive the report and direct staff to 1) publish the draft Housing Element and to solicit public feedback for 30‐days and, 2) incorporate comments received in the draft Housing Element and submit the document to the State Housing and Community Development Department (HCD) for review Written communications for this item included a staff presentation and an email to Council.

Acting Community Development Director Luke Connelly gave a presentation.

Mayor Paul opened the public comment period and the following people spoke.

Peggy Griffin asked about the draft document contents, satisfying the deadline, the 10‐ day response period, and submittal options. (Submitted written comments).

Planning Commissioner Muni Madhdhipatla (representing self) asked about satisfying the certification deadline and the progress of other cities.

CC 12-06-2022
24 of 759
City Council Minutes November 15, 2022

Scott Connelly supported promptly submitting to HCD instead of waiting and asked about the processes for EIR, consultant hiring, and after adoption.

Jennifer Griffin supported an extension allowance for Northern California and the City proceeding cautiously and opposed HCD management.

Lisa Warren supported the options presented by staff, replacing the consultant, and documentation for public review prior to consideration.

Mayor Paul closed the public comment period.

Councilmembers asked questions and made comments.

Moore moved and Chao seconded the staff recommendation with a draft Housing Element publication target date of Friday, November 18, 2022 and submittal date to HCD on January 20, 2023.

Chao made a friendly amendment to submit an informational item on the January 17 Council agenda prior to submittal to HCD on January 20. (Moore accepted the friendly amendment).

Moore modified her motion to solicit public feedback for at least 30‐days. (Chao accepted the modification).

Willey made a friendly amendment to add the Bubb Road site from Tier 2 to Tier 1 in the site inventory. (Moore declined the friendly amendment, and it was not considered).

Final Motion:

Moore moved and Chao seconded to direct staff to 1) publish the draft Housing Element on Friday, November 18, 2022 and to solicit public feedback for at least 30‐ days;
2) submit an informational item on the January 17 Council agenda prior to submittal to HCD; and
3) incorporate comments received in the draft Housing Element and submit the document to the State Housing and Community Development Department (HCD) for review on January 20, 2023.

The amended and modified motion carried unanimously.

ADJOURNMENT
CC 12-06-2022
25 of 759
City Council Minutes November 15, 2022

At 6:46 p.m., Mayor Paul adjourned the Special City Council Meeting.

REGULAR MEETING
At 6:50 p.m., Mayor Paul called the Regular City Council Meeting to order and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Darcy Paul, Vice Mayor Liang Chao, and Councilmembers Kitty Moore, Hung Wei, and Jon Robert Willey.

CEREMONIAL MATTERS AND PRESENTATIONS

1. Subject: Consider a proclamation recognizing November 13 ‐  19, 2022 as United Against Hate Week
Recommended Action: Present proclamation recognizing November 13 ‐  19, 2022 as United Against Hate Week
Anthony Rodriguez, Senior Advisor for the Office of Mayor Jesse Arreguin, received the proclamation.

Mayor Paul presented the proclamation recognizing November 13 ‐  19, 2022 as United Against Hate Week

2. Subject: Consider a proclamation recognizing November 26, 2022 as Small Business Saturday
Recommended Action: Present proclamation recognizing November 26, 2022 as Small Business Saturday
The following small business representatives received proclamations:
‐ Vicky Tsai of DryClean Pro
‐ Efren Flores of Holderʹs Country Inn
‐ Thalia Swangchaeng of Pineapple Thai
‐ Kishore Muvva of Trinethra Indian Supermarket
‐ Gloria You and Lucas Lyu of Sun Design Center
Mayor Paul presented the proclamations recognizing November 26, 2022 as Small CC 12-06-2022
26 of 759
City Council Minutes November 15, 2022

Business Saturday.

3. Subject: Consider certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS)
Recommended Action: Present certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS)
Silicon Valley Korean School Principal Young Sook Kim made comments and introduced the recipients.

Mayor Paul presented the certificates of appreciation to volunteers at the Silicon Valley Korean School (SVKS)
Council recessed from 7:10 p.m. to 7:25 p.m.

Councilmembers Moore and Willey left the dais and attended the remainder of the meeting via teleconference.

POSTPONEMENTS AND ORDERS OF THE DAY
Moore moved and Paul seconded to move Item 24 to the Consent Calendar. The motion carried with Wei and Chao voting no.

ORAL COMMUNICATIONS
Bob Hirt supported changing the use of Blackberry Farm Golf Course to a natural setting and preserving biodiversity.

A Huang Family representative was concerned about a case regarding an illegal structure that was removed from their backyard requiring litigation.

Peggy Griffin supported requiring printed names of signatories on City contracts and revision dates for documents on the City website.

Jennifer Griffin was concerned about recent Housing bills and loss of local control and supported transparency and public input.

Housing Commissioner Connie Cunningham (representing self) supported preserving natural spaces, protecting biodiversity and native trees, and restoring nature on the golf course.

Rhoda Fry supported Lehigh Cement Plant’s closure and was concerned about permit CC 12-06-2022
27 of 759
City Council Minutes November 15, 2022

authority for a new aggregate plant, noise, traffic, and filming activities.

Lisa Warren supported continuing the use of Blackberry Farm Golf Course and disagreed with comments that a majority of public opinion supported discontinuing the golf course.

REPORTS BY COUNCIL AND STAFF

4. Subject: Brief reports on councilmember activities and brief announcements Recommended Action: Receive brief reports on councilmember activities and brief announcements
Council received brief reports on councilmember activities and brief announcements.

5. Subject: Report on Committee assignments
Recommended Action: Report on Committee assignments
Councilmembers highlighted the activities of their various committees.

6. Subject: Report on Subcommittee assignments
Recommended Action: Report on Subcommittee assignments
Councilmembers reported on Subcommittee assignments.

7. Subject: City Manager update
Recommended Action: Receive City Manager update on City business Council received the City Manager update on City business.

8. Subject: Department Update ‐ Administrative Services Recommended Action: Receive update regarding the Administrative Services Department
Written communications for this item included a staff presentation.

Director of Administrative Services Kristina Alfaro gave a presentation.

Council received the update regarding the Administrative Services Department.

CONSENT CALENDAR (Items 9‐21 and 24)
Willey moved and Wei seconded to approve the items on the Consent Calendar, except Item 24 CC 12-06-2022
28 of 759
City Council Minutes November 15, 2022

which was added to the Consent Calendar and then pulled for discussion. Items 9‐17 and 19‐21:

Ayes: Paul, Chao, Moore, Wei, and Willey. Noes: None. Recused: None. Absent: None; Item 18:

Ayes: Paul, Moore, Wei, and Willey. Noes: None. Recused: Chao. None. Absent: None.

9. Subject: Consider approval of the November 1 City Council minutes Recommended Action: Approve the November 1 City Council minutes

10. Subject: Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period November 15, 2022 through December 15, 2022 pursuant to the Brown Act, as amended by AB 361 Recommended Action: Adopt Resolution No. 22‐133 authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period November 15, 2022 through December 15, 2022 pursuant to the Brown Act, as amended by AB 361

11. Subject: Consider accepting Accounts Payable for the periods ending September 11, 2022; September 18, 2022; September 25, 2022; and October 2, 2022 Recommended Action: A. Adopt Resolution No. 22‐134 accepting Accounts Payable for the period ending September 11, 2022;
B. Adopt Resolution No. 22‐135 accepting Accounts Payable for the period ending September 18, 2022;
C. Adopt Resolution No. 22‐136 accepting Accounts Payable for the period ending September 25, 2022; and
D. Adopt Resolution No. 22‐137 accepting Accounts Payable for the period ending October 2, 2022

12. Subject: Consider the Monthly Treasurerʹs Report for September 2022 Recommended Action: Accept the Monthly Treasurerʹs Report for September 2022

13. Subject: Consider the Monthly Treasurerʹs Investment Report for September 2022 Recommended Action: Accept the Monthly Treasurerʹs Investment Report for September 2022

14. Subject: Consider the Treasurerʹs Investment Report for Quarter Ending September 30, 2022
Recommended Action: Accept the Treasurerʹs Investment Report for Quarter Ending September 30, 2022

15. Subject: Consider Authorizing the City Manager to execute a First Amendment to Active Network, LLC., Product and Services Agreement, to renew Active Network Recreation Management Services Software Solution for $1,430,000, plus a contingency CC 12-06-2022
29 of 759
City Council Minutes November 15, 2022

of $143,000, over five years for a total cost of $1,573,000 Recommended Action: Authorize the City Manager to execute a First Amendment to Active Network, LLC., Product and Services Agreement, to renew Active Network Recreation Management Services Software Solution for $1,430,000, plus a contingency of $143,000, over five years for a total cost of $1,573,000

16. Subject: Consider adoption of a revised Cupertino Community Funding Grant Program Policy (continued on September 20, 2022)
Recommended Action: Receive an update from the City Council subcommittee meetings for the Cupertino Community Funding Grant Program Policy and adopt a revised Cupertino Community Funding Grant Program Policy

17. Subject: Continue the Community Funding Grant subcommittee with expanded jurisdiction to review the festival fee waiver policy and application Recommended Action: Direct the Community Funding Grant subcommittee, including Vice Mayor Chao, Councilmember Moore, Parks and Recreation Commission Chair and Vice Chair and Parks and Recreation Department Director to develop a proposed Festival Fee Waiver Policy and festival fee waiver application.

18. Subject: Consider setting a hearing date on January 17, 2023 to declare a public nuisance (from weeds) and to consider objections for proposed removal; declare properties as having potential fire hazards from weeds or other potential nuisances for the Cupertino Weed Abatement Program
Recommended Action: Adopt Resolution No. 22‐138 declaring properties as having potential fire hazards from weeds or other potential nuisances; and set hearing on January 17, 2023 to declare a public nuisance and to consider objections for proposed removal
Vice Mayor Chao recused herself from this item.

19. Subject: Consider authorization to execute a first amendment to the agreement for Disposal of Municipal Solid Waste between the City of Cupertino and International Disposal Corporation of California, Inc., extending the term for two years Recommended Action: Authorization of the City Manager to execute a first amendment to the agreement for Disposal of Municipal Solid Waste between the City of Cupertino and International Disposal Corporation of California, Inc. to November 2025

20. Subject: Consider the summary vacation of a portion of a Public Utility Easement on the property located at 10826 Brookwell Drive
Recommended Action: Adopt Resolution No. 22‐139, summarily vacating a portion of CC 12-06-2022
30 of 759
City Council Minutes November 15, 2022

Public Utility Easement on the property located at 10826 Brookwell Drive

21. Subject: Consider approval of a Final Map and the Subdivision Improvement Agreement for the Alan Row Development Project (Tract No. 10587; Applicant: Alan Enterprise, LLC; Location: 22690 Stevens Creek Boulevard; APNʹs: 342‐14‐104, 342‐14‐105, and 342‐14‐066
Recommended Action: Adopt Resolution No. 22‐140:
1) Approving the final map;
2) Accepting the street dedication and public service easements and abandoning redundant public roadway easements as shown on the map; and 3) Authorizing the City Engineer to execute and record the Subdivision Improvement Agreement

24. Subject: Consider City Hall Renovation Project update Recommended Action: 1. Receive report of the City Hall Project Subcommittee; and

2. Direct staff to include the City Hall Renovation Project as part of the fiscal year 2023‐24 proposed Capital Improvement Program (CIP) project and budget Presenter: Susan Michael, Capital Improvement Programs Manager This item was pulled from the Consent Calendar for discussion.

Written communications for this item included a staff presentation.

Capital Improvement Programs Manager Susan Michael gave a presentation.

Mayor Paul opened the public comment period and the following people spoke.

Peggy Griffin supported the decreased project cost and was concerned about preserving the trees near Library Field and the economic downturn.

Jean Bedord opposed limiting the renovation to the same building at $26.5 million and was concerned about addressing library parking and housing units.

Jennifer Griffin supported the proposed project and preserving trees along the parking lot and was concerned about economic uncertainty.

Lisa Warren was concerned about reducing parking by Library Field and supported the project as a major remodel instead of tearing down the building.

Mayor Paul closed the public comment period.

CC 12-06-2022
31 of 759
City Council Minutes November 15, 2022

Councilmembers asked questions and made comments.

Chao moved and Willey seconded to:

1. Receive the report of the City Hall Project Subcommittee; and

2. Direct staff to include the City Hall Renovation – including full seismic retrofit, MEP/IT, interior finishes, and layout complete refurbishment, at the level of California Building Code’s structural “Risk Category IV” for approximately $27,500,000, as part of the fiscal year 2023‐24 proposed Capital Improvement Program (CIP) project and budget.

The motion carried with Wei voting no.

Council recessed from 9:36 p.m. to 9:41 p.m.

SECOND READING OF ORDINANCES

22. Subject: City Council hearing to conduct second reading of amendments to implement state legislation (Senate Bill 9), that provides for ministerial approval of up to two units and/or a lot split in a residential single‐family zone
Recommended Action: Conduct the second reading and enact Ordinance No. 22‐2246:
ʺAn Ordinance of the City Council of the City of Cupertino amending chapters

18.20.170, 19.08.030, 19.12.030, 19.12.110, 19.28.040, 19.28.050, 19.28.110, 19.28.150,

19.28.170, 19.40.050, 19.40.060, 19.40.090, and 19.112.060 to adopt standards for ministerial approval of duplexes and lot splits in Single‐Family Residential zoning districts.ʺ
Mayor Paul opened the public comment period and the following people spoke.

Jennifer Griffin opposed SB 9 and SB 10 and new Housing bills and was concerned about community impacts.

Mayor Paul closed the public comment period.

Councilmembers asked questions and made comments.

City Clerk Kirsten Squarcia read the title of Ordinance No. 22‐2246: ʺAn Ordinance of the City Council of the City of Cupertino amending chapters 18.20.170, 19.08.030,

19.12.030, 19.12.110, 19.28.040, 19.28.050, 19.28.110, 19.28.150, 19.28.170, 19.40.050,

19.40.060, 19.40.090, and 19.112.060 to adopt standards for ministerial approval of duplexes and lot splits in Single‐Family Residential zoning districts.ʺ Moore moved and Chao seconded to:

CC 12-06-2022
32 of 759
City Council Minutes November 15, 2022

1. Read Ordinance No. 22‐2246 by title only, and that the City Clerk’s reading constitutes the second reading thereof; and

2. Enact Ordinance No. 22‐2246.

Ayes: Moore, Wei, Willey, Chao, and Paul. Noes: None. Abstain: None. Absent: None.

PUBLIC HEARINGS ‐ None

ORDINANCES AND ACTION ITEMS

23. Subject: Consider the First Quarter Financial Report for Fiscal Year 2022‐23 Recommended Action: 1. Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2022‐23

2. Adopt Resolution No. 22‐141 approving Budget Modification #2223‐244 increasing appropriations by $1,806,337 and revenues by $920,149
Presenters: Kristina Alfaro, Director of Administrative Services and Thomas Leung, Budget Manager
Written communications for this item included a staff presentation.

Director of Administrative Services Kristina Alfaro and Budget Manager Thomas Leung gave a presentation.

Mayor Paul opened the public comment period and, seeing no one, closed the public comment period.

Councilmembers asked questions and made comments.

Paul moved and Wei seconded to:

1. Accept the City Manager’s First Quarter Financial Report for Fiscal Year 2022‐23

2. Adopt Resolution No. 22‐141 approving Budget Modification #2223‐244 increasing appropriations by $1,806,337 and revenues by $920,149
The motion carried unanimously.

As noted under Postponements and Orders of the Day, Item 24 was moved to the Consent Calendar.

ORAL COMMUNICATIONS ‐ CONTINUED (As necessary) – None

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS
Councilmembers requested the following items:

CC 12-06-2022
33 of 759
City Council Minutes November 15, 2022

‐ Consider implementing member of the public’s suggestion by including printed names on contract signatures and adding numbering and webpage version control (Chao and Moore)
‐ Receive update on Lehigh Cement Plant and Quarry activities (Chao, Moore, and Willey)
‐ Future agenda item to discuss extending the jurisdiction, meeting frequency and length of time Housing Element Community Engagement Plan Subcommittee (Chao and Willey and Moore)

ADJOURNMENT
At 11:15 p.m., Mayor Paul adjourned the Regular City Council Meeting. __________________________
Kirsten Squarcia City Clerk
CC 12-06-2022
34 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period December 6, 2022 through January 5, 2023 pursuant to the Brown Act, as amended by AB 361
Adopt Resolution No. 22-142 authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the December 6, 2022 through January 5, 2023 pursuant to the Brown Act, as amended by AB 361
File #: 22-11295, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
35 of 759
1 CITY COUNCIL STAFF REPORT
Meeting: December 6, 2022
Subject
Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period December 6, 2022 through January 5, 2023 pursuant to the Brown Act, as amended by AB 361 Recommended Action
Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the December 6, 2022 through January 5, 2023 pursuant to the Brown Act, as amended by AB 361 Background
On March 2, 2020, Governor Newsom declared a state of emergency due to the public health threat posed by COVID‐19. On March 4, 2020, Governor Newsom issued Executive Order No‐29‐20, which suspended certain elements of the Brown Act and specifically allowed legislative bodies to hold meetings entirely electronically with no physical meeting. In accordance with the Executive Order, the City held its first teleconference meeting on March 24, 2020, to help stop the spread of COVID‐19. On June 11, 2021, Governor Newsom issued Executive Order No‐08‐21, which stated that the provisions in Executive Order No‐29‐20, suspending certain elements of the Brown Act, would continue to apply through September 30, 2021. On October 17, 2022, Governor Newsom announced that the COVID‐19 State of Emergency will end on February 28, 2023.

On September 15, 2021, Governor Newsom signed AB 361 into law, which allows state and local agencies to continue using teleconferencing during certain state‐declared emergencies under modified Brown Act requirements. AB 361 became effective immediately after signing due to its emergency clause and is set to sunset on January 1, 2024. Under AB 361, teleconference meetings may be held during a state of emergency if (1) state or local officials have imposed or recommended measures to promote social distancing, or (2) a legislative body determines by a majority vote that meeting in person would present imminent risks to the health or safety of attendees. (Gov. Code, § 54953(e)(1).)
CC 12-06-2022
36 of 759
2 To continue teleconference meetings beyond a 30‐day period, AB 361 requires the Council to make a determination that either (i) ʺ[t]he state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) “State or local officials continue to impose or recommend measures to promote social distancing.” (Gov. Code, § 54953(e)(3)(B).) That determination must be reviewed each 30 days thereafter to continue teleconference meetings. (Ibid.)
Discussion
AB 361 allows the City Council and other City legislative bodies to continue meeting exclusively via teleconference so long as a state emergency declaration remains in place and the statute’s conditions for permitting remote meetings are met. To continue meeting remotely, the City Council must find that state or local officials have imposed or recommend measures to support social distancing, or that the state of emergency continues to directly impact the ability of the members to meet safely in person.

On November 15, 2022, Council adopted Resolution No. 22‐133 affirming findings related to AB 361 and authorizing the City Manager and legislative bodies of the City of Cupertino to meet exclusively by teleconference in accordance with Government Code section 54953(e)(3) and other applicable provisions of the Brown Act through December 15, 2022 (Attachment B). Council may make either or both of the permitted findings to extend the time to allow teleconference meetings to continue. The Santa Clara County Health Officer continues to recommend that public bodies meet remotely to the extent possible, specifically including use of newly enacted AB 361 to maintain remote meetings under the Ralph M. Brown Act and similar laws (Attachment C). It is therefore recommended that Council adopt the Draft Resolution authorizing continued teleconference meetings for the City of Cupertino’s legislative bodies in order to protect the health and safety of all attendees and participants, particularly those who are unvaccinated (Attachment A).

Sustainability Impact
Conducting meetings remotely has reduced paper consumption by providing electronic access to meeting materials instead of printed materials.

Fiscal Impact
No fiscal impact.
_____________________________________
Prepared by: Kirsten Squarcia, City Clerk
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution
B – Adopted Resolution No. 22‐133
C – Health Officer Recommendation Regarding Public Governmental Meetings CC 12-06-2022
37 of 759
RESOLUTION NO. 22‐___

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

AUTHORIZING CONTINUED REMOTE TELECONFERENCE MEETINGS OF THE

LEGISLATIVE BODIES OF THE CITY OF CUPERTINO FOR THE PERIOD DECEMBER 6, 2022 THROUGH JANUARY 5, 2023 PURSUANT TO BROWN ACT

PROVISIONS
WHEREAS, the City of Cupertino is committed to preserving and nurturing public access and participation in meetings of the City Council, commissions, and committees; and
WHEREAS, all meetings of the City of Cupertino’s legislative bodies are open and public, as required by the Ralph M. Brown Act (Government Code sections 54950–54963), so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business; and
WHEREAS, the Brown Act, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
WHEREAS, a required condition for holding meetings exclusively by teleconference is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and
WHEREAS, Government Code section 54953(e) further requires that in order to authorize meetings exclusively by teleconference, a legislative body must determine that state or local officials have imposed or recommended measures to promote social distancing, or that meeting in person would present imminent risks to the health and safety of attendees; and
WHEREAS, on October 5, 2021, November 2, 2021, November 30, 2021, December 21, 2021, January 18, 2022, February 15, 2022, March 15, 2022, April 5, 2022, May 3, 2022, May 19, 2022,  June 7, 2022, July 7, 2022, July 19, 2022, August 16, 2022, September 6, 2022, October 4, 2022, November 1, 2022, and November 15, 2022 the Cupertino City Council made the findings required under Government Code section 54953(e) and resolved that the legislative bodies of the City of Cupertino shall conduct their meetings without CC 12-06-2022
38 of 759
Resolution No. 22‐__

compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that such legislative bodies should comply with the requirements to provide the public with access to the meetings as prescribed in section 54953(e)(2); and
WHEREAS, Government Code section 54593(e)(3) provides that to continue to holding meetings of legislative bodies exclusively by teleconference, the legislative body must reconsider the circumstances of the state of emergency every 30 days, and find that either (i) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) State or local officials continue to impose or recommend measures to promote social distancing; and
WHEREAS, the City Council has reconsidered the circumstances of the state of emergency that now exists, specifically defined in the County of Santa Clara proclamation of a local emergency beginning February 3, 2020, the City of Cupertino proclamation of a local emergency on March 11, 2020, the Governor of the State of California proclamation of a state of emergency beginning on March 4, 2020, and the national emergency declaration in Proclamation 9994 of March 13, 2020, beginning March 1, 2020, concerning the COVID‐19 pandemic; and
WHEREAS, the County of Santa Clara Health Officerʹs Recommendation Regarding Continued Remote Public Meetings of Governmental Entities dated September 21, 2021 and the California Department of Industrial Relations Revised Emergency Temporary Standards, effective May 6, 2022, continue to require or recommend social distancing in the workplace in certain circumstances; and WHEREAS, the Health Officerʹs Recommendations, the Revised Emergency Temporary Standards, and evidence documenting the transmission of COVID‐19 in indoor spaces establishes that the state of emergency continues to directly impact the ability of the members to meet safely in person; and
WHEREAS, based on the above findings, the Cupertino City Council hereby determines that the legislative bodies of the City of Cupertino shall continue to conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that such legislative bodies shall comply with the requirements to provide the public with access to the meetings as prescribed in section 54953(e)(2); and
WHEREAS, the City has and will continue to provide access for the public to legislative meetings and procedures through video teleconference technologies.

CC 12-06-2022
39 of 759
Resolution No. 22‐__

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino, as follows:

1. Remote Teleconference Meetings. The City Manager and legislative bodies of the City of Cupertino are hereby authorized and directed to meet exclusively by teleconference and to take all actions necessary to carry out the intent and purpose of this Resolution, including conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act.

2. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption and shall be effective through January 5, 2023, or such time as the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the City Council of the City of Cupertino may continue to teleconference without compliance with Government Code section 54953(b)(3).

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6th day of December 2022, by the following vote:

Vote             Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
_______________ ________________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
____________________ ___________
Kirsten Squarcia, City Clerk
________________________
Date
CC 12-06-2022
40 of 759
RESOLUTION NO. 22-133

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

AUTHORIZING CONTINUED REMOTE TELECONFERENCE MEETINGS OF THE

LEGISLATIVE BODIES OF THE CITY OF CUPERTINO FOR THE PERIOD NOVEMBER 15, 2022 THROUGH DECEMBER 15, 2022 PURSUANT TO BROWN

ACT PROVISIONS
WHEREAS, the City of Cupertino is committed to preserving and nurturing public access and participation in meetings of the City Council, commissions, and committees; and
WHEREAS, all meetings of the City of Cupertino's legislative bodies are open and public, as required by the Ralph M. Brown Act (Government Code sections 54950- 54963), so that any member of the public may attend, participate, and watch the City's legislative bodies conduct their business; and
WHEREAS, the Brown Act, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
WHEREAS, a required condition for holding meetings exclusively by teleconference is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and
WHEREAS, Government Code section 54953(e) further requires that in order to authorize meetings exclusively by teleconference, a legislative body must determine that state or local officials have imposed or recommended measures to promote social distancing, or that meeting in person would present imminent risks to the health and safety of attendees; and
WHEREAS, on October 5, 2021, November 2, 2021, November 30, 2021, December 21, 2021, January 18, 2022, February 15, 2022, March 15, 2022, April 5, 2022, May 3, 2022, May 19, 2022, June 7, 2022, July 7, 2022, July 19, 2022, August 16, 2022, September 6, 2022, October 4, 2022, and November 1, 2022 the Cupertino City Council made the findings required under Government Code section 54953(e) and resolved that the legislative bodies of the City of Cupertino shall conduct their meetings without compliance with CC 12-06-2022
41 of 759
Resolution No. 22-133
Page3
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino, as follows:

1. Remote Teleconference Meetings. The City Manager and legislative bodies of the City of Cupertino are hereby authorized and directed to meet exclusively by teleconference and to take all actions necessary to carry out the intent and purpose of this Resolution, including conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act.

2. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption and shall be effective through December 15, 2022, or such time as the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the City Council of the City of Cupertino may continue to teleconference without compliance with Government Code section 54953(b)(3).

PASS ED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 15th day of November 2022, by the following vote:

Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:

C2- ~
;, / :Yo /zo z.z_
DarcyPaJi~ Date
City of Cuper ·
ATTEST:

Kirsten Squarcia, City Clerk Date
11/30/22
CC 12-06-2022
42 of 759
County of Santa Clara
Public Health Department
Health Officer
976 Lenzen Avenue, 2nd Floor
San José, CA 95126
408.792.3798
Board of Supervisors: Mike Wasserman, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian County Executive: Jeffrey V. Smith
Recommendation Regarding Continued Remote Public Meetings of Governmental Entities Issued: September 21, 2021
In light of the continued state of emergency related to COVID-19, the County Public Health Officer continues to recommend that public bodies meet remotely to the extent possible, specifically including use of newly enacted AB 361 to maintain remote meetings under the Ralph M. Brown Act and similar laws.

Among other reasons, this recommendation is made due to the continued threat of COVID-19 to the community, the unique characteristics of public governmental meetings (such as the increased mixing associated with bringing together people from across the community, the need to enable those who are immunocompromised or unvaccinated to be able to safely continue to fully participate in public governmental meetings, and the challenges with fully ascertaining and ensuring compliance with vaccination and other safety recommendations at such meetings), and the continued increased safety protection that social distancing provides as one means by which to reduce the risk of COVID-19 transmission. This recommendation does not apply to those meetings of a quasi-judicial nature that have been already meeting in person prior to September 21, 2021, for example to allow for credibility determinations of witnesses.

The Health Officer will continue to evaluate this recommendation on an ongoing basis and will communicate when there is no longer such a recommendation with respect to meetings for public bodies.

CC 12-06-2022
43 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider the OPEB and Pension Trust Investment Policies Adopt Resolution No. 22-143 accepting the OPEB Policy and adopt Resolution No. 22-144 accepting the Pension Trust Investment Policies
File #: 22-11779, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
44 of 759

CITY COUNCIL STAFF REPORT
Meeting: December 6, 2022
Subject
Consider the OPEB and Pension Trust Investment Policies Recommended Action
Adopt Resolution No. 22-XXX and No. 22-XXX accepting the OPEB and Pension Trust Investment Policies
Discussion
Background
In Fiscal Year (FY) 2009-10, the City established a Section 115 Trust to help fund its retiree health obligations, also known as other post-employment benefits (OPEB). In FY 2017-18, the City also established a Section 115 Trust to pre-fund its pension obligations and reduce the potential impact of pension cost volatility on the City's operating budget.

On an annual basis, the Audit Committee reviews the City's investment policies before they are presented to City Council. The City’s Audit Committee reviewed and accepted the attached OPEB Trust and Pension Trust investment policies on October 24, 2022.

OPEB and Pension Trusts
Section 115 Trust Overview
A Section 115 Trust is a tax-exempt investment tool that allows local governments to prefund pension and retiree health costs. The benefits of a Section 115 Trust include the following:
 Local control over assets: The City controls the contributions, withdrawals, investment strategy, and risk level of assets in the Trust.  Potential for higher investment returns than General Fund: Investment requirements that apply to the City's General Fund assets under Government Code 53601 are not applicable to Trust assets.
 Pension rate stabilization: Assets can be transferred to CalPERS at the City's discretion to pay for Normal Cost or Unfunded Accrued Liability (UAL) CC 12-06-2022
45 of 759
2 contributions and can be used to reduce or eliminate large fluctuations in the City's pension costs.
 Diversification: Trust assets will be diversified from CalPERS investments.

OPEB Trust Overview
In FY 2009-10, the City established a Section 115 Trust to help fund its retiree health obligations, also known as other post-employment benefits (OPEB). Compared to a payas-you-go plan, the OPEB Trust allows the City to:
 Grow assets to pay future OPEB benefits.
 Earn higher returns than the General Fund.
 Reduce its total cost for providing post-employment benefits.  Reduce its Net OPEB Liability.

In July 2010, the City contributed $7.0 million in initial funding. With additional contributions of $12.3 million, total contributions to date are $19.3 million.

As of June 30, 2022, the City's OPEB Trust had a market value of $31.3 million and had earned an annualized investment return of 5.77% gross of fees since inception.

Time Period Annualized Investment Return
1 Year -17.28%
5 Year 4.34%
Since Inception 5.77%
1-Year investment returns were impacted by financial market volatility due to heightened geopolitical risk, supply chain bottlenecks and persistent inflation, and the Federal Reserve’s pivot to a less accommodative monetary policy.

The FY 2021-22 investment return also impacted the unfunded accrued liability and funded ratio. As of the June 30, 2022 measurement date, using a 6.5% discount rate, the City’s OPEB plan had an accrued liability of $29.9 million and a market value of assets of $31.3 million, resulting in an unfunded accrued liability of $(1.5) million and a funded ratio of 104.9%. Compared to June 30, 2021, the unfunded accrued liability increased, and the funded ratio decreased due to the FY 2021-22 investment loss.

June 30, 2021 June 30, 2022
Accrued Liability 28,626,000 29,871,000
Market Value of Assets 38,025,000 31,340,000
Unfunded Accrued Liability (9,399,000) (1,469,000)
Funded Ratio 132.8% 104.9%
CC 12-06-2022
46 of 759
3 Pension Trust Overview
Since pension obligations are one of the City's largest financial obligations, the City has taken proactive steps to reduce the impacts of pension cost volatility. In March 2018, the City provided options to Council for addressing rising pension costs. In April 2018, the City presented a long-term pension funding strategy to the Fiscal Strategic Plan Committee. In May 2018, the City adopted a Section 115 Trust, also known as a Pension Rate Stabilization Program (PRSP), to reduce pension rate volatility on the City's budget.

The Pension Trust helps the City to:
 Grow assets for future pension contributions.
 Invest assets over appropriate time horizons.
 Earn higher investment returns than the General Fund.  Reduce pension contribution volatility.
 Diversify funds from CalPERS investments.

As a fiscal sustainability measure, the City funds the Pension Trust using a more conservative discount rate of 6.25%. The City's pension funding goal is to accumulate sufficient funds in the Pension Trust to fund the difference between a 6.25% and a 7% discount rate and achieve a funded status of 80% by FY 2036-37, 20 years from the adoption of the Pension Trust. The City's projections indicated that it would need to accumulate over $42 million in the Pension Trust within 20 years to achieve its pension funding goal.

As a result, the funding strategy proposed $8.0 million in initial funding, along with additional funding of $10.0 million over the first five years. To date, the City has contributed $16.0 million, including:
 $8.0 million in FY 2018-19
 $4.0 million in FY 2019-20
 $2.0 million in FY 2020-21
 $2.0 million in FY 2021-22
As of June 30, 2022, the City's Pension Trust had a market value of $17.2 million and had earned an annualized investment return of 3.94% gross of fees since inception.

Time Period Annualized Investment Return
1 Year -17.19%
Since Inception 3.94%
1-Year investment returns were impacted by financial market volatility due to heightened geopolitical risk, supply chain bottlenecks and persistent inflation, and the Federal Reserve’s pivot to a less accommodative monetary policy.

CC 12-06-2022
47 of 759
4 The following chart illustrates the City's progress toward its pension funding goal. The 5% investment return represents the lowest investment return that would allow the City to achieve its goal. A 6.25% investment return is the current target rate of return of the Pension Trust. The dotted line represents the actual market value of the City's Pension Trust.

Note: The 5% Investment Return and 6.25% Investment Return projections are for illustrative purposes only. Actual returns will be different. Past performance is no guarantee of future results.

Given this strategy and the City's current progress, the City is in a strong position to withstand the effects of pension cost increases. By using a more conservative discount rate than CalPERS, the City can allocate more towards pension funding each year than CalPERS requires. If CalPERS investment returns fall short of assumptions, the City will be better prepared for future pension cost increases. If CalPERS lowers the discount rate, the City will be better prepared to absorb the costs.

OPEB and Pension Trust Investment Policies
The Audit Committee is responsible for reviewing the OPEB and Pension Trust investment policies annually, appointing investment managers, and monitoring investment performance. The City Council is responsible for annually adopting the OPEB and Pension Trust investment policies.

CC 12-06-2022
48 of 759
5 It is not expected that the OPEB and Pension Trust investment policies will change frequently. Short-term changes in the financial markets should not require adjustments to the policies.

The Audit Committee reviewed the policies on September 27, 2021, October 25, 2021, and November 15, 2021. The Audit Committee accepted the policies with recommended additions to the prohibited asset classes. The changes included:
 Prohibiting direct or indirect exposure to cryptocurrencies  Prohibiting leveraged securities, other than registered hedged equity and hedged fixed income positions
 Limiting registered hedged equity and fixed income positions to 10% of the portfolio
On December 7, 2021, the City Council adopted the investment policies with the Audit Committee’s recommendations.

Public Agency Retirement Services (PARS) is the City’s Trust Administrator and US Bank is the City’s Investment Manager for the Pension and OPEB Trusts. The Investment Manager manages the investments per the investment policies. Within the constraints imposed by these policies, Investment Managers are expected to comply with all applicable fiduciary and due diligence requirements under the “prudent investor” rules.

OPEB and Pension Trust Investment Objectives
The OPEB Trust has a “Balanced” investment objective with a target rate of return of

6.50%, and the Pension Trust has a “Balanced” investment objective with a target rate of return of 6.25%. The “Balanced” investment objective is designed to provide a moderate amount of current income with moderate growth of capital. Investors should have sufficient tolerance for price and return volatility and substantial periodic declines in investment value. This objective is recommended for investors with a long-term time horizon. The strategic asset allocation ranges and tactical targets for this objective are listed below:

Asset Class Range Target
Fixed Income 20-40% 29%
Equities 50-70% 63%
Real Estate 0-15% 5%
Commodities 0-10% 2%
Cash 0-10% 1%
The target rates of return are based on the long-term expected rate of return for assets in the trusts and the City's time horizon for the investments.

CC 12-06-2022
49 of 759
6 With strong reserves and a fully funded OPEB plan, the City can maintain a long-term investment horizon with a “balanced” investment objective. There may be periods of substantial decline in investment value, and the portfolio should expect periodic volatility. However, a 6.56% return on investment is expected over the long-term, based on the current investment objective. More conservative investment objectives such as “moderate” and “moderate-conservative” would expect less volatility and declines in investment value; however, over the long term, they would also expect lower returns.

Many agencies anticipate needing to access the funds in their respective trusts sooner and invest with more emphasis on preserving capital in the near term.

The OPEB Trust has a higher discount rate than the Pension Trust because OPEB investments are expected to have a longer time horizon. OPEB obligations are generally longer in duration, and the City expects to withdraw Pension Trust funds earlier to fund CalPERS contributions. Given that changes to the CalPERS discount rate have larger effects on the City's operating budget and are farther out of the City's control, it is important that the City be able to use the Trust to pay CalPERS contributions as needed.

CalPERS
CalPERS Overview
The City provides a defined benefit pension to its employees through the California Public Employees' Retirement System (CalPERS). Retiree pensions are calculated using a formula based on an employee's age, earnings, and years of service. The retirement benefits are funded by:
 Investment earnings (60%)
 Employer contributions (29%)
 Employee contributions (11%)
Each year, CalPERS determines an employer's contributions based on actual investment returns and actuarial assumptions, including:
 Expected investment returns (discount rates)
 Inflation rates
 Salaries
 Retirement ages
 Life expectancies
Contributions to fund the pension plan are comprised of two components:
 The Normal Cost (NC), which is the cost of the benefits earned in a respective year.  The Unfunded Accrued Liability (UAL) payment, which is the amortization of the unfunded accrued liability.

CC 12-06-2022
50 of 759
7 CalPERS Discount Rate
Defined benefit plans are highly sensitive to the discount rate assumption. The discount rate is the expected rate of return on the plan's assets over the long term. The discount rate will depend on the plan's size, asset allocation, time horizon, and other considerations.

From the City's perspective, the discount rate is important as it is used to determine the City's annual contributions to the plan, the plan's unfunded liability, and the plan's funded status. In other words, the discount rate is used to determine whether a plan has enough assets to meet its future obligations. If the discount rate assumption is too high and investments earn less than expected, a funding shortfall may result, requiring the City or CalPERS members to make greater contributions than expected.

CalPERS Update
As of the June 30, 2021 actuarial valuation, the City's CalPERS plan had an accrued liability of $168.4 million and market value of assets of $127.1 million, resulting in an unfunded accrued liability of $41.3 million and a funded ratio of 75.5%. Compared to the June 30, 2020 actuarial valuation, the unfunded liability decreased, and the funded ratio increased due to the FY 2020-21 investment gain. The June 30, 2022 actuarial valuation will reflect the FY 2021-22 investment returns.

June 30, 2020 June 30, 2021
Accrued Liability 157,610,543 168,421,875
Market Value of Assets 103,788,993 127,113,891
Unfunded Accrued Liability 53,821,550 41,307,984
Funded Ratio 65.9% 75.5%
The unfunded liability is the difference between assets and liabilities, while the funded ratio is the ratio of assets to liabilities.

A defined-benefit plan is considered adequately funded if its assets equal or exceed the value of its future liabilities. When the funded ratio is lower than 100%, the plan has insufficient assets to pay all future liabilities. Poor investment returns during the Great Recession significantly decreased the plan's assets. In addition, enhanced benefits and actuarial assumption changes due to increased life expectancies increased the plan's liabilities. These two factors significantly decreased the funded status of the system.

Over the past few years, CalPERS has taken steps to improve the long-term financial sustainability of the system. In December 2016, the CalPERS board voted to reduce the discount rate, also known as the assumed rate of return for investments, from 7.5% to 7.0% over three years from FY 2018-19 to FY 2020-21. In February 2018, the CalPERS board also voted to decrease the amortization period for new pension liabilities from 30 years to 20 years, effective July 1, 2019. While these changes will provide long-term benefits to the pension plan, they will also increase the City's pension contributions.

CC 12-06-2022
51 of 759
8 Funding Risk Mitigation Policy
Under the "Funding Risk Mitigation Policy," the 21.3% return in FY 2020-21 triggered a reduction in the discount rate, or assumed rate of return, from 7% to 6.8%. The Funding Risk Mitigation Policy, approved by the CalPERS board in 2005, lowers the discount rate in years of good investment returns to reduce risk in the portfolio. The Risk Mitigation Policy will affect contributions starting in FY 2023-24.

Asset Liability Management Process
In November 2021, CalPERS completed its Asset Liability Management (ALM) process, which follows a four-year cycle. The ALM process reviewed investment strategies and actuarial assumptions. At the November 15-17, 2021, meetings, the CalPERS Board approved a 6.8% discount rate, selected a new asset allocation for the fund's investment portfolio, and adopted new actuarial assumptions.

CalPERS Investment Returns
Note: Beginning in 2002, investment returns are reported gross of fees.

Challenging and volatile financial markets impacted FY 2021-22 investment returns. For FY 2021-22, CalPERS reported a preliminary investment return of -6.1%. The average investment return is 6.7% for a 5-year period, 7.7% for a 10-year period, 6.9% for a 20-year period, and 7.7% for a 30-year period. Given that returns in a given year are volatile, it can be more instructive to look at returns over longer time horizons.

CC 12-06-2022
52 of 759
9 Time Period Annualized Investment Return
1 Year -6.1%
5 Year 6.7%
10 Year 7.7%
20 Year 6.9%
30 Year 7.7%
CalPERS assumes it will earn investment returns of 6.8% each year. If investment returns are higher than 6.8%, the City's contributions decrease. On the other hand, if investment returns are lower than 6.8%, the City's contributions increase.

The FY 2021-22 investment loss is expected to affect the City's pension contributions starting in FY 2024-25.

In FY 2028-29, when the FY 2021-22 investment loss is fully phased in, the City’s annual costs are expected to be $2.0 million higher than previously projected. The $2.0 million increase in contributions due to the -6.1% investment loss in FY 2021-22 is partially offset by the $1.8 million decrease in contributions due to the 21.3% investment gain in FY 2020-

21. CC 12-06-2022
53 of 759
10 CalPERS Discount Rate Analysis
Due to lower-than-historical interest rates and economic growth, market experts project lower returns for the next several decades. The Pew Research Center forecasts a long-term investment return of 6.5% for typical pension fund portfolios.

The discount rate has a significant effect on the City's CalPERS contributions. If the discount rate is less than the discount rate assumption, the City's CalPERS contributions will increase. If CalPERS lowers the discount rate by one percentage point, the City's contributions will increase by up to $2.9 million annually.

The chart below shows the impact on pension contributions if CalPERS were to lower the discount rate.

Note: Projections include FY 2021-22 investment loss of -6.1%.

Comparison of Pension Funding with Neighboring Cities
The following chart compares the funded status of the City’s CalPERS plan with other cities in the County of Santa Clara. As of the June 30, 2021 actuarial valuation, Cupertino’s funded status was 75.5%, lower than most cities in the County, because the City has not made additional contributions, also known as Additional Discretionary Payments (ADPs), to CalPERS beyond the required employer contributions. Instead, the City has placed funds in a Section 115 Trust, which allows for more diversification and local control.

CC 12-06-2022
54 of 759
11 The Pension Trust may be used to pay down liabilities through Additional Discretionary Payments to CalPERS. The City may elect to make additional contributions, above and beyond the required employer contributions, at any time and in any amount. However, payments made to CalPERS are permanent and cannot be returned.

The funded status reported by CalPERS only includes assets that cities have contributed to CalPERS. It does not include assets in a Section 115 Pension Trust or pension reserve.

After factoring in Section 115 Pension Trusts and pension reserves, the theoretical funded status of the City’s pension plan is 85.7%, slightly above the average of other cities in the County.

CC 12-06-2022
55 of 759
12 While the funded status of a pension plan is a helpful measure of fiscal sustainability, it does not provide a complete picture. First, the funded status is a snapshot in time. It doesn’t consider future pension contributions. While Cupertino plans to contribute an additional $2.0 million in FY 2022-23, other cities have different funding strategies.

Second, the funded status is sensitive to the discount rate. The funded status is based on CalPERS’ current discount rate of 6.8%; however, if CalPERS lowers the discount rate, the funded status will be lower.

Sustainability Impact
There is no sustainability impact.

Fiscal Impact
There is no direct fiscal impact at this time.
_____________________________________
Prepared by: Thomas Leung, Budget Manager
Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – OPEB Trust Investment Policy
B – OPEB Trust Investment Policy Draft Resolution
C – Pension Trust Investment Policy
D – Pension Trust Investment Policy Draft Resolution
CC 12-06-2022
56 of 759
1 | P a g e
Other PostEmployment Benefits
(OPEB) Investment
Policy
Citywide Policy Manual
Attachments: N/A
Effective Date:

December 6, 2022
Responsible Department:

Administrative Services
Related Policies & Notes:

City Investment Policy, Pension Investment Policy
Overview
In response to the Government Accounting Standards Board (GASB) Statement No. 45, replaced by GASB Statement No. 74 and GASB Statement No. 75, new disclosure requirements for Other Post-employment Benefit (OPEB) Plans, the City of Cupertino has adopted a Section 115 Trust and Plan that seeks to satisfy these liabilities for certain eligible employees
Executive Summary
Account Name: City of Cupertino OPEB Trust
Account Number: 6746035000
Investment Authority: Full Investment Authority
Current Assets: $29.8 million (September 2022)
Time Horizon: Long-Term
Target Rate of Return: 6.5%
Communication Schedule: Meetings will be conducted at least quarterly U.S. Bank Portfolio Manager: Rick Rosenthal
[email protected]
213-443-1848
U.S. Bank Relationship Manager: Ryan Maxey
[email protected]
503-464-3789
CC 12-06-2022
57 of 759
2 | P a g e
Investment Objective: ‘Balanced’
This investment objective is designed to provide a moderate amount of current income with moderate growth of capital. Investors should have sufficient tolerance for price and return volatility and substantial periodic declines in investment value. This objective is recommended for investors with a long-term time horizon.

The strategic asset allocation ranges and tactical targets for this objective are listed below:

Investment Guidelines
Overview
This document defines the investment policy, guidelines and performance objectives applicable to the assets of The City of Cupertino’s OPEB Trust. The goal of this Policy is to create an investment framework within which the assets can be actively yet prudently managed.

The purpose of this document is threefold.
 First, it will set forth an investment structure for managing the Portfolio assets. This structure is expected to produce an appropriate level of overall diversification and total investment return over the investment time horizon.  Second, it will serve as to encourage effective communications between the organization and parties involved with investment management decisions.  Third, these guidelines will provide a framework to measure ongoing investment performance.

Within the constraints imposed by these policies, Investment Managers are expected to comply with all applicable fiduciary and due diligence requirements under the “prudent investor” rules, which state: “Investments shall be made with judgment and care, under circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable income to be derived.” All applicable laws, rules and regulations from various local, state, federal and international political entities that may impact the Portfolio are to be adhered to.

Asset Class Range
Benchmark
Target
Fixed Income 20-40% 29%
Equities 50-70% 63%
Real Estate 0-15% 5%
Commodities 0-10% 2%
Cash 0-10% 1%
CC 12-06-2022
58 of 759
3 | P a g e
Diversification
Your Portfolio Manager is responsible for maintaining the balance between the various asset classes based on the investment objective’s strategic asset allocation. As a general policy, the Investment Manager will maintain reasonable diversification at all times by asset class, credit quality, issuer, sector, industry, and country.

The following parameters shall be adhered to in managing the portfolio:

Fixed Income Assets
 The fixed income investments are to maintain intermediate-term average weighted duration, between three-seven years.
 At the time of purchase, no single fixed income issuer shall exceed 2% of the total market value of the Portfolio, with the exception of U.S. Treasury or Agency obligations.  The direct high-yield portion shall constitute no more than 10% of the total market value of the Portfolio.
 Hedged fixed income positions shall constitute no more than 10% of the total market value of the Portfolio.

Equity & Growth Assets
 The domestic equity investments are expected to be diversified at all times by size, industry, sector, and style (Large Cap, Mid Cap, and Small Cap).  At the time of purchase, no individual equity security shall exceed 2% of the total market value of the Portfolio.
 The international equity investments (including emerging markets) shall constitute no more than 20% of the total market value of the Portfolio  The real estate investments shall be captured through the use of diversified mutual funds or ETFs investing in REITs; and shall constitute no more than 15% of the total market value of the Portfolio.
 The commodities investments shall be captured through the use of diversified mutual funds or ETFs; and shall constitute no more than 10% of the total market value of the Portfolio.
 Hedged equity positions shall constitute no more than 10% of the total market value of the Portfolio
Permitted Asset Classes and Security Types
Fixed Income & Cash Equivalent Investments:
 Domestic Certificates of Deposit (rated A-1/P-1 or better)  Domestic Commercial Paper (rated A-1/P-1 or better)
 Floating Rate Notes
 Money Market Mutual Funds
 U.S. Treasury Bonds, Bills and Notes
 U.S. Agency (and Instrumentality) Discount Notes, Notes, and Bonds  Treasury Inflation-Protected Securities (TIPS)
 Municipal Bonds and Notes
CC 12-06-2022
59 of 759
4 | P a g e
 Corporate Bonds
 Mortgage-Backed Bonds (MBS)
 Asset-Backed Bonds (ABS)
 High-Yield Bonds (rated B-/B3 or better)
 Dollar denominated Foreign Bonds and Notes
 Bond Mutual Funds
Equity Investments:
 Common & Preferred Stocks
 American Depository Receipts (ADRs)
 Domestic and International Equity Mutual Funds (Open and Closed)  Emerging Market Equity Funds or Exchange Traded Funds (ETFs) Alternative Investments:
 Commodities Mutual Funds or Exchange Traded Notes (ETNs)  REIT Investment or Pooled Strategy or Fund of REITs
 Registered Hedge Funds or Hedge Fund of Funds
Prohibited Asset Classes and Transactions
The Investment Manager is prohibited from purchasing or holding any of the following types of investments:
 Partnerships unless investing in Master Limited Partnerships invested in a mutual fund and limited in scope and allocation of Portfolio based on asset class limitations of table above
 Letter stock and other unregistered securities; physical commodities or other commodity contracts; and short sales or margin transactions
 Investments in the equity securities of any company with a record of less than three years continuous operation, including the operation of any predecessor  Investments for the purpose of exercising control of management  Direct or indirect exposure to cryptocurrencies
 Leveraged securities, other than registered Hedged Equity and Hedged Fixed Income positions
Duties and Responsibilities
1) CITY OF CUPERTINO AUDIT COMMITTEE
a) Establish, approve, and maintain investment objectives, guidelines, and policies (including this Policy).
b) Appoint Investment Managers who can be reasonably expected to adhere to the investment guidelines and meet the investment objectives as established. c) Monitor the investment performance of the Portfolio and compare actual investment performance relative to an appropriate benchmark index given the stated investment guidelines and objectives set forth in this Policy.

CC 12-06-2022
60 of 759
5 | P a g e
d) Conduct a formal review of the Portfolio’s asset allocation, investment structure and performance annually or more frequently as the need arises. e) Periodically review the Portfolio performance against objectives. 2) CITY OF CUPERTINO CITY COUNCIL
a) Adopt the Policy by resolution of the City Council on an annual basis. 3) PORTFOLIO MANAGER
The Portfolio Manager will be responsible for carrying out the activities related to the Portfolio in accordance with the Policy including:
a) Manage the day-to-day investment of Portfolio assets in accordance with the Policy guidelines and objectives included herein.
b) Exercise full investment discretion and prudence in the selection and diversification of investments.
c) Promptly bring to the attention of the City Treasurer or designee any investment that is subsequently downgraded and fails to meet the quality guidelines, along with a recommendation of retention or disposal.
d) Provide on a quarterly basis the following investment reporting:
(i) Year-to-date rate of return
(ii) Annualized one, three, five, etc. rates of return
e) Provide annually to the City’s Audit Committee a commentary and analysis of investment performance to include an evaluation of the current and future investment environment and potential impact of the investment environment on achievement of investment objectives.

Investment Policy Statement Review
The City’s Audit Committee will review and the Cupertino City Council will adopt this Investment Policy Statement at least annually to determine whether stated investment objectives are still relevant and the continued feasibility of achieving the same. It is not expected that the Policy will change frequently. In particular, short-term changes in the financial markets should not require adjustments to the Policy.

If at any time the Portfolio Manager finds the above guidelines too restrictive or possibly injurious to investment returns, they should communicate that information immediately to the City’s Audit Committee.

City Manager’s signature: _______________________________ Date: _______________________________
CC 12-06-2022
61 of 759
6 | P a g e
Revisions: 6.5.2018, 11.19.2019, 11.17.2020, 12.7.2021
Director of Administrative Services’ signature: _______________________________ Date: _______________________________
CC 12-06-2022
62 of 759
RESOLUTION NO. 22-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ACCEPTING THE CITY INVESTMENT POLICY FOR THE OTHER POSTEMPLOYMENT BENEFITS TRUST WHEREAS, the City’s Other Post-Employment Benefit Trust, established for sole purpose to benefit the general public, has available funds to invest in accordance with principles of sound treasury management; and
WHEREAS, the City invests funds in accordance with provisions of California Government Code Section 53600; and
WHEREAS, the City’s Audit Committee reviewed and accepted the attached City Investment Policy for the Other Post-Employment Benefits Trust on October 24, 2022.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino accepts the attached City Investment Policy for the Other Post-Employment Benefits Trust dated December 6, 2022.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6
th day of December 2022, by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
CC 12-06-2022
63 of 759
1 | P a g e
Pension Trust
Investment Policy
Citywide Policy Manual
Attachments: N/A
Effective Date:

December 6, 2022
Responsible Department:

Administrative Services
Related Policies & Notes:

N/A
Investment Policy Statement
Overview
The City has established a Section 115 Trust with PARS to assist in stabilizing the potential impact of pension cost volatility on the City’s operating budget. The City intends to use the Section 115 Trust to pre-fund pension costs and proactively address the unfunded liability. The City’s goal is to have sufficient assets in the trust to increase the funded status to over 80% within 20 years, as well as fund the difference between a 7.0% and 6.25% discount rate.

Executive Summary
Account Name: City of Cupertino Pension Trust
Account Number: 6746050100
Investment Authority: Full Investment Authority
Current Assets: $16.4 Million (September 2022)
Time Horizon: Long-Term
Target Rate of Return: 6.25%
Communication Schedule: Meetings will be conducted at least quarterly U.S. Bank Portfolio Manager: Rick Rosenthal
[email protected]
213-443-1848
U.S. Bank Relationship Manager: Ryan Maxey
[email protected]
503-464-3789
CC 12-06-2022
64 of 759
2 | P a g e
Investment Objective: ‘Balanced’
This investment objective is designed to provide a moderate amount of current income with moderate growth of capital. Investors should have sufficient tolerance for price and return volatility and substantial periodic declines in investment value. This objective is recommended for investors with a long-term time horizon.

The strategic asset allocation ranges and tactical targets for this objective are listed below:

Investment Guidelines
Overview
This document defines the investment policy, guidelines and performance objectives applicable to the assets of The City of Cupertino’s Pension Trust. The goal of this Policy is to create an investment framework within which the assets can be actively yet prudently managed.

The purpose of this document is threefold.
 First, it will set forth an investment structure for managing the Portfolio assets. This structure is expected to produce an appropriate level of overall diversification and total investment return over the investment time horizon.  Second, it will serve as to encourage effective communications between the organization and parties involved with investment management decisions.  Third, these guidelines will provide a framework to measure ongoing investment performance.

Within the constraints imposed by these policies, Investment Managers are expected to comply with all applicable fiduciary and due diligence requirements under the “prudent investor” rules, which state: “Investments shall be made with judgment and care, under circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable income to be derived.” All applicable laws, rules and regulations from various local, state, federal and international political entities that may impact the Portfolio are to be adhered to.

Asset Class Range
Benchmark
Target
Fixed Income 20-40% 29%
Equities 50-70% 63%
Real Estate 0-15% 5%
Commodities 0-10% 2%
Cash 0-10% 1%
CC 12-06-2022
65 of 759
3 | P a g e
Diversification
Your Portfolio Manager is responsible for maintaining the balance between the various asset classes based on the investment objective’s strategic asset allocation. As a general policy, the Investment Manager will maintain reasonable diversification at all times by asset class, credit quality, issuer, sector, industry, and country.

The following parameters shall be adhered to in managing the portfolio:

Fixed Income Assets
 The fixed income investments are to maintain intermediate-term average weighted duration, between three-seven years.
 At the time of purchase, no single fixed income issuer shall exceed 2% of the total market value of the Portfolio, with the exception of U.S. Treasury or Agency obligations.  The direct high-yield portion shall constitute no more than 10% of the total market value of the Portfolio.
 Hedged fixed income positions shall constitute no more than 10% of the total market value of the Portfolio
Equity & Growth Assets
 The domestic equity investments are expected to be diversified at all times by size, industry, sector, and style (Large Cap, Mid Cap, and Small Cap).  At the time of purchase, no individual equity security shall exceed 2% of the total market value of the Portfolio.
 The international equity investments (including emerging markets) shall constitute no more than 20% of the total market value of the Portfolio  The real estate investments shall be captured through the use of diversified mutual funds or ETFs investing in REITs; and shall constitute no more than 15% of the total market value of the Portfolio.
 The commodities investments shall be captured through the use of diversified mutual funds or ETFs; and shall constitute no more than 10% of the total market value of the Portfolio.
 Hedged equity positions shall constitute no more than 10% of the total market value of the Portfolio
Permitted Asset Classes and Security Types
Fixed Income & Cash Equivalent Investments:
 Domestic Certificates of Deposit (rated A-1/P-1 or better)  Domestic Commercial Paper (rated A-1/P-1 or better)
 Floating Rate Notes
 Money Market Mutual Funds
 U.S. Treasury Bonds, Bills and Notes
 U.S. Agency (and Instrumentality) Discount Notes, Notes, and Bonds  Treasury Inflation-Protected Securities (TIPS)
 Municipal Bonds and Notes
CC 12-06-2022
66 of 759
4 | P a g e
 Corporate Bonds
 Mortgage-Backed Bonds (MBS)
 Asset-Backed Bonds (ABS)
 High-Yield Bonds (rated B-/B3 or better)
 Dollar denominated Foreign Bonds and Notes
 Bond Mutual Funds
Equity Investments:
 Common & Preferred Stocks
 American Depository Receipts (ADRs)
 Domestic and International Equity Mutual Funds (Open and Closed)  Emerging Market Equity Funds or Exchange Traded Funds (ETFs) Alternative Investments:
 Commodities Mutual Funds or Exchange Traded Notes (ETNs)  REIT Investment or Pooled Strategy or Fund of REITs
 Registered Hedge Funds or Hedge Fund of Funds
Prohibited Asset Classes and Transactions
The Investment Manager is prohibited from purchasing or holding any of the following types of investments:
 Partnerships unless investing in Master Limited Partnerships invested in a mutual fund and limited in scope and allocation of Portfolio based on asset class limitations of table above
 Letter stock and other unregistered securities; physical commodities or other commodity contracts; and short sales or margin transactions
 Investments in the equity securities of any company with a record of less than three years continuous operation, including the operation of any predecessor  Investments for the purpose of exercising control of management  Direct or indirect exposure to cryptocurrencies
 Leveraged securities, other than registered Hedged Equity and Hedged Fixed Income positions
Duties and Responsibilities
1) CITY OF CUPERTINO AUDIT COMMITTEE
a) Establish, approve, and maintain investment objectives, guidelines, and policies (including this Policy).
b) Appoint Investment Managers who can be reasonably expected to adhere to the investment guidelines and meet the investment objectives as established. c) Monitor the investment performance of the Portfolio and compare actual investment performance relative to an appropriate benchmark index given the stated investment guidelines and objectives set forth in this Policy.

CC 12-06-2022
67 of 759
5 | P a g e
d) Conduct a formal review of the Portfolio’s asset allocation, investment structure and performance annually or more frequently as the need arises. e) Periodically review the Portfolio performance against objectives. 2) CITY OF CUPERTINO CITY COUNCIL
a) Adopt the Policy by resolution of the City Council on an annual basis. 3) PORTFOLIO MANAGER
The Portfolio Manager will be responsible for carrying out the activities related to the Portfolio in accordance with the Policy including:
a) Manage the day-to-day investment of Portfolio assets in accordance with the Policy guidelines and objectives included herein.
b) Exercise full investment discretion and prudence in the selection and diversification of investments.
c) Promptly bring to the attention of the City Treasurer or designee any investment that is subsequently downgraded and fails to meet the quality guidelines, along with a recommendation of retention or disposal.
d) Provide on a quarterly basis the following investment reporting:
(i) Year-to-date rate of return
(ii) Annualized one, three, five, etc. rates of return
e) Provide annually to the City’s Audit Committee a commentary and analysis of investment performance to include an evaluation of the current and future investment environment and potential impact of the investment environment on achievement of investment objectives.

Investment Policy Statement Review
The City’s Audit Committee will review and the Cupertino City Council will adopt this Investment Policy Statement at least annually to determine whether stated investment objectives are still relevant and the continued feasibility of achieving the same. It is not expected that the Policy will change frequently. In particular, short-term changes in the financial markets should not require adjustments to the Policy.

If at any time the Portfolio Manager finds the above guidelines too restrictive or possibly injurious to investment returns, they should communicate that information immediately to the City’s Audit Committee.

City Manager’s signature: _______________________________ Date: _______________________________
CC 12-06-2022
68 of 759
6 | P a g e
Revisions: 6.5.2018, 11.19.2019, 11.17.2020, 12.7.2021
Director of Administrative Services’ signature: _______________________________ Date: _______________________________
CC 12-06-2022
69 of 759
RESOLUTION NO. 22-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

ACCEPTING THE CITY INVESTMENT POLICY FOR THE PENSION TRUST WHEREAS, the City’s Pension Trust, established for sole purpose to benefit the general public, has available funds to invest in accordance with principles of sound treasury management; and
WHEREAS, the City invests funds in accordance with provisions of California Government Code Section 53600; and
WHEREAS, the City’s Audit Committee reviewed and accepted the attached City Investment Policy for the Pension Trust on October 24, 2022.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino accepts the attached City Investment Policy for the Pension Trust dated December 6, 2022.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6
th day of December 2022, by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
CC 12-06-2022
70 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider the Mitigation Fee Act - an annual and five-year report for Fiscal Year (FY) 2021- 2022
Adopt Resolution No. 22-145 entitled "A Resolution of the City of Cupertino City Council approving the annual and five -year Development Impact Fee report for FY ending June 30, 2022" to:

1. Make the required findings as identified in the Resolution; and

2. Approve the annual and five-year Development Impact Fee report for the FY ending June 30, 2022, as required by Government Code Section 66000 et seq
File #: 22-11556, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
71 of 759

CITY COUNCIL STAFF REPORT
Meeting: December 6, 2022
Subject
Consider the Mitigation Fee Act – an annual and five-year report for Fiscal Year (FY) 2021-2022.

Recommended Action
Adopt Resolution No. 22-____ entitled “A Resolution of the City of Cupertino City Council approving the annual and five-year Development Impact Fee Report for FY ending June 30, 2022” to:
1) Make the required findings as identified in the Resolution; and 2) Approve the annual and five-year Development Impact Fee report for the FY ending June 30, 2022, as required by Government Code Section 66000 et seq.

Discussion
The Mitigation Fee Act (Government Code Section 66000 et seq.) requires public agencies to account for and make findings when imposing development impact fees as a condition of development approval. Government Code Section 66006(b) also requires that public agencies annually review and make available to the public a report accounting for development impact fees held by the agency. Additional reporting is required at least every five years pursuant to Government Code Section 66001(d).

There are several impact fees that the City of Cupertino has required as a condition of development approval in lieu of requiring construction of certain public improvements.

These fees are subject to annual and five-year reporting requirements. Most of these fees were imposed to mitigate development impacts and were based on the development’s fair share of a larger public improvement project.

Pursuant to Section 66006(b), the City is required to make available to the public the following information concerning development impact fees each fiscal year:
 A brief description of the type of fee in the account or fund.  Amount of the fee.
 Beginning and ending balances of the account or fund.  The amount of fees collected, and interest earned.

CC 12-06-2022
72 of 759
 Identification of each public improvement on which fees were expended and the amount of the expenditures on each improvement, including the total percentage of the cost of the public improvement that was funded with in‐lieu fees.  Identification of an approximate date by which the construction of the public improvement will commence, if the local agency determines that sufficient funds have been collected to complete the public improvement and the public improvement remains incomplete.
 A description of each inter-fund transfer or loan made from the account or fund, including the public improvement on which the transferred or loaned fees will be expended. In the case of an interfund loan, the date on which the loan will be repaid, and the rate of interest that the account or fund will receive on the loan.  The amount of any refunds made pursuant to Government Code section 66001(e) and any allocations made pursuant to Government Code section 66001(f).

Under Section 66001(d), the City also must make certain findings regarding unfinished improvements every five years following the first deposit of impact fees into a fund. The agency must identify the purpose for which the fee was expended and demonstrate a reasonable relationship between the fee and the purpose for which it was used. The agency also must identify all sources and amounts of funding anticipated to complete the financing of incomplete improvements and to designate approximate dates when this funding is expected to be deposited into the account. Fees received through a development agreement are exempt from the five-year report.

The attached report includes the annual report for the fiscal year ending June 30 and a five-year report for all fees. All construction projects listed have or will commence within the next five years, as shown in the report. Since the City provided a five-year report last fiscal year, a new five-year report is not required. However, the five-year report provides additional detail, so the City voluntarily provides such data to better inform the public.

Sustainability Impact
No sustainability impact.

Fiscal Impact
The subject fees were collected for specific purposes of design and construction of certain public improvements. Accepting these Annual and Five-Year Reports will program the fees and ensure they are retained by the City until used. Budgeted fees and actual fees collected can be found in the following revenue accounts, Housing Mitigation 406-404, Parkland Fees 406-409 and Traffic Impact Fees 450-402.
_____________________________________
Prepared by: Jennifer Chu, Senior Civil Engineer
Prepared by: Chad Mosley, Assistant Director of Public Works CC 12-06-2022
73 of 759
Reviewed by: Matt Morley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Annual and Five-Year Report
B – Draft Resolution
CC 12-06-2022
74 of 759
Attachment A
Page | 1
394\01\1992522.1
City of Cupertino
AB 1600 ‐ Mitigation Fee Act
Annual & Five Year Report for the fiscal year ending June 30, 2022 Dept.: Community Development
Project: Below Market Rate (BMR) Housing Mitigation Fee Local Authority:

Information on the City’s BMR Housing Mitigation Fee is provided as a courtesy. The City of Cupertino has collected BMR mitigation fees from commercial and residential developments since 1992 based on nexus studies conducted at that time. On May 5, 2015, the City Council adopted Resolution 15-036, accepting three reports from Keyser Marston Associates, Inc. (KMA) – Summary and Recommendations BMR Housing Mitigation Program, Non-Residential JobsHousing Nexus Analysis, and Residential BMR Housing Nexus Analysis – which collectively form the City’s Nexus Study justifying the current residential and non-residential Housing Mitigation Fees. Per Resolution 17-052, the City Council adopted the updated BMR residential and non-residential (office, research and development, industrial, hotel, retail and commercial) Housing Mitigation Fees. On May 19, 2020, the City Council adopted Resolution 20-056, which increased the Housing Mitigation Fees for hotels and for offices to levels lower than the maximum amount needed to fully mitigate the burdens created by new development on the need for affordable housing as determined in the KMA Reports, based in part on an Economic Feasibility Analysis prepared by Strategic Economics concluding that increased fees would be feasible. On April 21, 2020, the City Council adopted Resolution 20-037, amending the BMR Housing Mitigation Fees to adopt fee categories and amounts for self-storage and warehouse uses based in part on a report from KMA dated January 2020 and entitled “Supplement to the NonResidential Jobs-Housing Nexus Study” evaluating the impact of self-storage and warehouse land uses on demand for affordable housing in the City and determining the maximum amount of a fee needed to fully mitigate the burdens on affordable housing created by these types of development.

The fiscal year 2021-22 BMR Housing Mitigation Fee amounts are being reported below.

Voluntary Five Year Reporting & Findings Requirement:

1. The purpose of the BMR Housing Mitigation Fee is to help mitigate the need for affordable housing as a result of new residential and non-residential development within the City of Cupertino. The requirements for applicability to the BMR Housing Mitigation Fees are set forth in the City’s adopted BMR Housing Mitigation Program Procedural Manual. The BMR Housing Mitigation Fee schedule is as follows:

Residential (per sq. ft.) -
Detached Single FamilyResidence $19.28
Small Lot Single Family Residence or Townhome $21.21
Multi-Family Attached Townhome or Condo $25.71
Multi-Family Rental Apartment (1 to 35 du/ac) $25.71
Multi-Family Rental Apartment (over 35 du/ac) $32.14
Non-Residential (Per sq.ft.) –
Office, Research & Development, or Industrial $30.47
CC 12-06-2022
75 of 759
Attachment A
Page | 2
Hotel $15.24
Self-Storage, employee unit provided $0.57
Self-Storage, employee unit not provided $1.20
Warehouse $42.32
Commercial or Retail $12.85
BMR Housing Mitigation Fees were used to fund staff and administrative time, legal and professional services, BMR housing placement services, rental mediation, contract services, housing and homelessness strategies, and Habitat for Humanity.

The fees in the BMR Fund include funds paid to the City as conditions of development agreements. When applicable, these fees are included in the tables below; however, there is no requirement to prepare a five-year report regarding fees obtained through a development agreement.

2. A reasonable relationship exists between the BMR Housing Mitigation Fee and the purpose for which the fee was charged. The need for the BMR Housing Mitigation fees, as they were identified when the fee was enacted, remains. See, Strategic Economics December 16, 2019 Economic Feasibility Study of Inclusionary Requirements.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost*
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Below
Market Rate
Housing
Mitigation
fee
$160,300,000 $5,462,532 100% Additional
Developer
Contributions
State and
Federal tax
credits, loans
and grants
As projects
develop/
redevelop
Ongoing Ongoing
* Based on RHNA allocation and affordability gaps estimated in the nexus study: Very-low income units (356) x $241,000/unit = $87.8 million. Low income units (207) x $213,000/unit = $44.1 million. Moderate income units (231) x $123,000/unit = $28.4 million. Total = $160.3 million.

CC 12-06-2022
76 of 759
Attachment A
Page | 3
394\01\1992522.1
Annual Report
Amount of Fee: Based on adopted Fee Schedule
FY2021-22
Trust
Fund
Activity
Fiscal Year Purpose of Expenditure
Balance at
7/1/2021
$6,111,827
Fees
Collected
$39,211
*
Interest $70,915
Expended
Subtotal
($329,346)
($29,367)
($264,296)
($50,000)
($7,145)
($71,224)
($8,043)
($759,421)
Staff and administration
Legal and professional services
Housing placement services
Rental mediation services/contract services
Housing Strategies
Homelessness
Habitat for Humanity
Refunded 0
Unrestricted
balance at
6/30/2022
$5,462,532
*- Includes funds collected by Development Agreement
CC 12-06-2022
77 of 759
Attachment A
Page | 4
Dept.: Public Works
Project: Park Dedication In-Lieu Fee
Local Authority:

City of Cupertino: Municipal Code, Chapter 13.08
Five Year Reporting & Findings Requirement:

1. The purpose of the Park Dedication Fee is to help mitigate the need for additional outdoor recreational area for new residential development within the City of Cupertino. The requirements for applicability to the Park Dedication Fees are set forth in the City’s Municipal Code, Chapter

13.08, and the fee was adopted under the provisions of the Mitigation Fee Act. The Parkland Dedication Fee is based on the fair market value of land within the City of Cupertino. Land values are appraised bi-annually, and the Park Dedication Fees are updated accordingly. Park Dedication Fees are used to fund parkland acquisitions and improvements to park and recreational facilities.

The fees in the Park Dedication table below include funds paid to the City as a condition of development agreements. Although these fees are included in the tables below, there is no requirement to prepare a five-year report regarding fees obtained through a development agreement. In addition, this table includes adopted fees imposed as a condition of development.

2. A reasonable relationship exists between the Park Dedication Fee and the purpose for which the fee is charged, as additional parkland and facilities are needed to offset the increase in population that additional residential units impacts. The need for the Park Dedication fees, as they were identified when the fee was enacted, remains, as the City’s current park area per resident does not yet meet the park acreage standard in the Park Dedication Fee ordinance and as development continues to occur.

3. The sources and amounts of funding anticipated to complete the financing of the Park Dedication are identified below:
 Developer Fair-Share Contributions from all projects that add residences.

4. The approximate dates on which the funding for the needed park acquisition and improvements is expected to be deposited into the appropriate account are identified in the Five-Year Report on the next page.

CC 12-06-2022
78 of 759
Attachment A
Page | 5
394\01\1992522.1
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
LawrenceMitty Park$8,270,994 $5,401,272 100% Project is fully funded
Winter 2020 Spring
2015
Summer 2023
Annual Report
Amount of Fee: Based on Fair-Market Value of land, through land appraisal FY2021-22
Trust
Fund
Activity
Fiscal Year Purpose of Expenditure
Balance at
7/1/2021
$9,051,726
Fees
Collected
$9,045,000
*
Interest $225,540
Expended see
reservations
below
Refunded 0
Reserved** ($8,270,994)
($3,000,000)
($1,150,000)
($500,000)
Reserved for purchase and construction of
Lawrence-Mitty Park
Reserved for Memorial Park Pond Repurposing
Reserved for Memorial Park Amphitheater
Reserved for Memorial Park Specific Plan
Balance at
6/30/2022
$5,401,272
*- Includes funds collected by Development Agreement and other developments **- Unused project funds will be returned to parkland in-lieu fee account CC 12-06-2022
79 of 759
Attachment A
Page | 6
Dept.: Public Works
Project: Transportation Impact Fee
Local Authority:

City of Cupertino: Municipal Code, Chapter 14.02
Five Year Reporting & Findings Requirement:

1. The purpose of the Transportation Impact Fee is to help mitigate the impact to the City’s existing transportation infrastructure due to new development, additions to existing structures or changes in use within the City of Cupertino. The requirements for applicability to the Transportation Impacts Fees are set forth in the City’s Municipal Code, Chapter 14.02, and the fee was adopted under the provisions of the Mitigation Fee Act. The Transportation Impact Fee is based on the Transportation Impact Fee Nexus Study. Transportation Impact Fees are used to fund capital improvements to the City’s transportation infrastructure.

2. A reasonable relationship exists between the Transportation Impact Fee and the purpose for which the fee is charged, as additional transportation infrastructure is needed to offset the increased demand that new development, additions to existing structures and changes in use create on the roadway network. The need for the Traffic Impact fees, as identified in the Nexus Study remain, as the infrastructure improvements have not yet been constructed.

3. The sources and amounts of funding anticipated to complete the financing of the Transportation Impact Fee are identified below:
 Developer Fair-Share Contributions from all projects that create new vehicle trips.

4. The approximate dates, on which the funding for the needed transportation impact improvements is expected to be deposited, are identified in the Five-Year Report on the next page.

CC 12-06-2022
80 of 759
Attachment A
Page | 7
394\01\1992522.1
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expecte
d to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated to
Complete the
Project
Estimated
Date for
Funding to
be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Projects in the
Transportation
Impact Fee
Nexus Study
$59,780,125 $752,839 100% Additional
Developer
Contributions,
State and
Federal grants,
General Fund
Fall 2024 Winter
2019
Summer 2025
Annual Report
Amount of Fee: Based on Transportation Impact Fee Nexus Study FY2021-22
Trust
Fund
Activity
Fiscal Year Purpose of Expenditure
Balance at
7/1/2021
$468,998
Fees
Collected
$275,838
Interest $8,003
Expended
Subtotal
0 0
Refunded 0
Balance at
6/30/2022
$752,839
CC 12-06-2022
81 of 759
Attachment A
Page | 8
Dept.: Public Works
Project: N. Stelling/I-280 Bridge Pedestrian Lighting & Upgrades Local Authority:

EXC-2007-06: Condition of Approval No. 21
TM-2007-02: Condition of Approval No. 24
Five Year Reporting & Findings Requirement:

1. The purpose of the N. Stelling/I-280 Bridge Pedestrian Lighting & Upgrades fee is to enhance the pedestrian walkway along the east and west side of the North Stelling Road bridge that crosses over Interstate 280. Public facilities to be funded with the fees were described in:
a. Villa Serra Apartments: ASA-2007-03: Condition of Approval No. 21, dated July 13, 2007 for Architectural Site Approval ($25,000 collected) b. Las Palmas Subdivision: TM-2007-02: Condition of Approval No. 24, dated July 18, 2007 for Tentative Map Application ($25,000 collected)

2. A reasonable relationship exists between the North Stelling fee and the purpose for which the fee was charged in that new development in the vicinity of the bridge increases pedestrian traffic across the bridge. The need for improvements to the bridge, that were identified during the review of the two projects, remains, as the bridge experiences increased pedestrian traffic due to the two projects.

3. The sources and amounts of funding anticipated to complete the financing of the bridge improvements are identified below:
 It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.

4. The approximate dates on which the funding for the bridge improvements is expected to be deposited into the appropriate account are identified in the Five-Year Report below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Pedestrian
Lighting &
Upgrades –
N. Stelling/
I280 Bridge
$100,000 $52,744 50% Anticipated
that City will
fund the
remaining
cost of the
project
Spring/2025 Summer/2025 Fall/2025
CC 12-06-2022
82 of 759
Attachment A
Page | 9
394\01\1992522.1
Annual Report
Amount of Fee: 25% Contribution to the total cost, based on estimated four projects contributing to improvement.

FY 2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$ 52,222 Amount $ -
Fees Collected 0 $ 50,000 Repayment Date
(est.)
na
Interest $522 $6,294
Expended 0 ($3,550)
Refunded 0 0
Balance at
6/30/2022
$ 52,744 $ 52,744
CC 12-06-2022
83 of 759
Attachment A
Page | 10
Dept.: Public Works
Project: De Anza/McClellan/Pacifica signal modification Local Authority:

TM-2002-02: Condition of Approval No. 23
Five Year Reporting & Findings Requirement:

1. The purpose of the De Anza/McClellan/Pacifica signal modification is to study and redesign the traffic signal to improve the efficiency of the intersection. Public facilities to be funded with the fees were described in:
a. Cupertino Town Square: TM-2002-02: Condition of Approval No. 2, dated July 15, 2003 for Tentative Map application ($145,700 collected)

2. A reasonable relationship exists between the De Anza/McClellan/Pacifica signal modification contribution and the purpose for which the fee was charged, in that the new development introduces additional vehicular and pedestrian traffic to the intersection. The need for improvements to the intersection and the traffic signal, as they were identified during the review of the project, remains. The intersection continues to run less efficiently than other intersections in the area.

3. The sources and amounts of funding anticipated to complete financing of the intersection improvements are identified below:
 Developer Fair-Share Contributions from other projects that contribute traffic to the intersection.
 It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.
 Vehicle Emissions Reductions Based at Schools (VERBS) Grant funding.

4. The approximate dates on which the funding for the bridge improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated to
Complete the
Project
Estimated
Date for
Funding to
be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Traffic Signal
& Intersection
Improvements
De Anza Blvd/
McClellan Rd/
Pacifica Ave
$1,200,000 $62,841 14% Developer
Contributions,
General Fund,
and VERBS
Grants
Funding
has been
provided.

Summer/
2019
Spring
2021
Fall 2023
CC 12-06-2022
84 of 759
Attachment A
Page | 11
394\01\1992522.1
Annual Report
Amount of Fee: 12.5% Contribution to the total cost based on estimated contribution of four projects.

FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$167,278 Amount $ -
Fees Collected 0 $ 145,700 Repayment Date
(est.)
na
Interest $1,673 $23,251
Expended ($106,110) Design
Services
($106,110)
Refunded 0 0
Balance at
6/30/2022
$62,841 $62,841
CC 12-06-2022
85 of 759
Attachment A
Page | 12
Dept.: Public Works
Project: Stevens Creek Blvd. and Bandley Drive Signal Improvements Local Authority:

ASA-2011-12: Condition of Approval No. 43
Five Year Reporting & Findings Requirement:

1. The purpose of the Stevens Creek Blvd and Bandley Drive Traffic Signal Improvement fee is to partially fund upgrades to the traffic signal in order to improve the efficiency of the intersection.

Public facilities to be funded with the fees were described in:
a. Cupertino Crossroads: ASA-2011-12: Condition of Approval No. 43 dated November 17, 2011 for Architectural Site Approval ($25,000 collected)

2. A reasonable relationship exists between the Stevens Creek Blvd. and Bandley Drive Signal Improvements fee and the purpose for which the fee was charged, in that the new development has a driveway that connects directly to the signalized intersection and the development will introduce additional vehicular and pedestrian traffic to the intersection. The need for the improvements to the intersection, which were identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete financing of the signal upgrades improvements are identified below:
 Developer Fair-Share Contributions from other projects in the vicinity of the intersection.  It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.

4. The approximate dates on which the funding for the signal improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding
to be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Stevens Creek
Blvd and
Bandley
Drive Signal
Improvements
$185,000 $13,701 5% Developer
Contributions,
and General
Fund.

Funding
has been
provided.

Summer/
2019
Spring/2020 Summer/2023
CC 12-06-2022
86 of 759
Attachment A
Page | 13
Annual Report
Amount of Fee: Contribution from expected nearby developments, based on estimated addition of traffic to intersection.

FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$13,565 Amount $ -
Fees Collected 0 $ 25,000 Repayment Date
(est.)
na
Interest $136 $1,827
Expended 0 Kimley Horn
Contract
($13,126)
Refunded 0 0
Balance at
6/30/2022
$13,701 $ 13,701
CC 12-06-2022
87 of 759
Attachment A
Page | 14
Dept.: Public Works
Project: Traffic Mitigation at Homestead Rd and Lawrence Expressway Local Authority:

TM-2012-04: Condition of Approval No. 87
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Traffic Mitigation at Homestead Rd and Lawrence Expressway fee is to fund improvements to the intersection in order to address traffic impacts from the project. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino: TM-2012-04: Condition of Approval No. 87, dated September 20, 2012 for Tentative Map application ($400,000 collected)

2. A reasonable relationship exists between the Traffic Mitigation at Homestead Rd and Lawrence Expressway fee and the purpose for which the fee was charged, in that the development, in the vicinity of the intersection, introduces additional traffic to the intersection. The County of Santa Clara has estimated a cost to upgrade the intersection, and the Environmental Impact Report assessed a fair share contribution from the project to address its portion of the impact. The need for improvements to the intersection, as they were identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete financing of the intersection improvements are to be identified by the County of Santa Clara.

4. The approximate dates on which the funding for the intersection improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expecte
d to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Traffic
Mitigation at
Homestead
Rd and
Lawrence
Expressway
Bridge
$4,000,000 $435,169 100% To be
determined
by the
County of
Santa Clara
When
adequate
funds have
been
acquired by
the County
to begin the
project.

Anticipated
Summer/
2025
Fall/2026 Summer/2027
CC 12-06-2022
88 of 759
Attachment A
Page | 15
Annual Report
Amount of Fee: Based on Fair-Share Contribution assessed by Environmental Impact Report FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$430,861 Amount $ -
Fees Collected 0 $400,000 Repayment Date
(est.)
na
Interest $4,308 $35,169
Expended 0 0
Refunded 0 0
Balance at
6/30/2022
$435,169 $435,169
CC 12-06-2022
89 of 759
Attachment A
Page | 16
Dept.: Public Works
Project: Traffic Calming to Mitigate Impacts from Main Street Cupertino Local Authority:

TM-2012-04: Condition of Approval No. 93
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Traffic Calming to Mitigate Impacts from Main Street Cupertino fee is to help mitigate traffic impacts in the adjacent neighborhoods resulting from the project, for a period of 5 years following project occupancy. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino TM-2012-04: Condition of Approval No. 93 dated 9/20/2012 for Tentative Map application ($100,000 collected).

2. A reasonable relationship exists between the Traffic Calming fee and the purpose for which the fee was charged, in that the development introduces additional traffic to the surrounding neighborhoods. The City will utilize the funds as needed to address traffic impacts to the surrounding neighborhoods, for a period of 5-years after occupancy.

3. The sources and amounts of funding anticipated to complete financing of the traffic calming mitigations were collected with the project ($100,000).

4. The approximate dates on which the funding for the improvements is expected to be deposited into the appropriate account are identified below.

5. The initial deposit was collected upon project occupancy in June 2018 and is expected to be refunded to the payor before June 2023, unless the City finds need to implement traffic calming mitigations by said date.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Traffic
Calming
along
Rodrigues
Ave. and
Pacifica Dr.
$100,000 $108,793 100% Project fully
funded
Fees have
been
collected.

Development
Project
completed
June 2018
Fall/2021 June 2023
CC 12-06-2022
90 of 759
Attachment A
Page | 17
Annual Report
Amount of Fee: Estimated Full Cost of the Study and potential improvements.

FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$107,715 Amount $ -
Fees Collected 0 $100,000 Repayment Date
(est.)
na
Interest $1,078 $8,793
Expended 0 0
Refunded 0 0
Balance at
6/30/2022
$108,793 $108,793
CC 12-06-2022
91 of 759
Attachment A
Page | 18
Dept.: Public Works
Project: Creek Trail Improvements along Calabazas Creek Local Authority:

TM-2012-04: Condition of Approval No. 47
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Creek Trail Improvements along Calabazas Creek contribution is to administer a creek trail plan, the necessary approvals and improvements for a new trail along Calabazas Creek from Vallco Parkway to Interstate 280. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino: TM-2012-04: Condition of Approval No. 47 dated September 20, 2012 for Tentative Map application ($65,000 collected)

2. A reasonable relationship exists between the Creek Trail Improvements along Calabazas Creek Fee and the purpose for which the fee was charged in that development in the vicinity of the proposed creek trail introduces additional pedestrian traffic to the area, causing the need to provide additional and alternative means of pedestrian access and recreation to new residents and visitors to the development. The need for a new creek trail, as it was identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete financing of the project are identified below:
 Developer Fair-Share Contributions from other projects in the vicinity of the proposed creek trail location

4. The approximate dates on which the funding for the trail improvements is expected to be deposited into the appropriate account are identified in the Five-Year Report on the next page.

CC 12-06-2022
92 of 759
Attachment A
Page | 19
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Creek Trail
Improvements
along
Calabazas
Creek
$195,000 $70,716 100% Additional
Developer
Contributions
are needed to
complete the
project
Developer
contributions
obtained
when
adjacent
properties
redevelop.

Anticipated
Summer/2022
Spring/2023 Spring/2024
Annual Report
Amount of Fee: Contribution equivalent to 1/3 of the estimated cost of creek trail plan FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$ 70,016 Amount $ -
Fees Collected 0 $ 65,000 Repayment Date
(est.)
na
Interest $700 $5,716
Expended 0 0
Refunded 0 0
Balance at
6/30/2022
$70,716 $70,716
CC 12-06-2022
93 of 759
Attachment A
Page | 20
Dept.: Public Works
Project: Parking Conversion Fund along Vallco Parkway
Local Authority:

TM-2012-04: Condition of Approval No. 67
Five Year Reporting & Findings Requirement:

1. The purpose of the Parking Conversion Fund along Vallco Parkway is to enable the City to convert the angled parking spaces along the south side of Vallco Parkway to parallel parking spaces and an additional east-bound traffic lane. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino: TM-2012-04: Condition of Approval No. 67 dated 9/20/2012 for Tentative Map application ($450,000 collected)

2. A reasonable relationship exists between the Parking Conversion Fund along Vallco Parkway and the purpose for which the fund was collected in that new development is adjacent to this section of Vallco Parkway, and the development reduced the number of east-bound lanes a part of their project. The Fund will permit the City to reestablish the east-bound lane that was lost, due to the development, should it be found that the additional lane is necessary to serve the public. The fund is based on the estimated cost to perform the work. The need for the funds, that were identified when the funds was imposed, remain, as the development project has not yet been completed, and the full impact of traffic to this portion of road has not yet materialized.

3. The sources and amounts of funding anticipated to complete financing of the conversion were collected with the project ($450,000).

4. The approximate dates on which the funding for the conversion is expected to be deposited into the appropriate account are identified below.

5. The initial deposit was collected upon project occupancy in June 2018 and is expected to be refunded to the payor before June 2023, unless the City finds need to convert the parking by said date.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expect
ed to
be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Parking
Conversion
Fund along
Vallco
Parkway
$450,000 $489,566 100% No
additional
funds
needed at
this time.

Fees have
been collected.

Development
Project
completed
June 2018
June 2018 June 2023
CC 12-06-2022
94 of 759
Attachment A
Page | 21
Annual Report
Amount of Fee: Estimated Full Cost of the potential improvements.

FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$484,719 Amount $ -
Fees Collected 0 $450,000 Repayment Date
(est.)
na
Interest $4,847 $39,566
Expended 0 0
Refunded 0 0
Balance at
6/30/2022
$489,566 $489,566
CC 12-06-2022
95 of 759
Attachment A
Page | 22
Dept.: Public Works
Project: Funding of Neighborhood Cut-through Traffic and Parking Intrusion Monitoring Local Authority:

TM-2011-03: Condition of Approval No. 49
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Funding of Neighborhood Cut-through Traffic and Parking Intrusion Monitoring Fee is to monitor and address traffic and parking intrusion, in neighborhoods adjacent to the project site, due to the practices of employees who will work at the project site. Public facilities to be funded with the fees were described in:
a. Apple Campus 2: Ordinance 13-2114: Resolution Approving Apple Campus 2 Development Agreement – Section 3.13 and TM 2011-03: Condition of Approval No. 49 dated 10/15/2013 for Tentative Map Application ($850,000 collected)

2. A reasonable relationship exists between the Funding of Neighborhood Cut-through Traffic and Parking Intrusion Monitoring fee and the purpose for which the fee was charged in that the traffic from the development, for which the fee is to be used to monitor, has not yet materialized because the development has not been fully constructed or occupied. The City will begin monitoring activities in the fall of 2017. The $850,000 fee was based on an estimate of the cost to perform the monitoring and make minor modifications to address traffic and parking intrusion concerns.

The need for traffic and parking intrusion monitoring, as it was identified during the review of the project, remains. The traffic, for which the fees are to be used to monitor, has not yet materialized.

3. The sources and amounts of funding anticipated to complete monitoring and improvements were collected with the project ($850,000).

4. The approximate dates on which the funding for the monitoring is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated to
Complete the
Project
Estimated
Date for
Funding to
be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Funding of
Neighborhood
Cut-through
Traffic and
Parking
Intrusion
Monitoring
$869,223 $881,397 100% No additional
funds needed
at this time.

Fall/ 2017 Summer/2017 Winter/2026
CC 12-06-2022
96 of 759
Attachment A
Page | 23
Annual Report
Amount of Fee: Estimated Full Cost of the Study and potential improvements.

FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$872,670 Amount $ -
Fees Collected 0 $850,000 Repayment Date
(est.)
na
Interest $8,727 $72,875
Expended 0 IDAX &
Stantec
Consulting
Contracts
($41,478)
Refunded 0 0
Balance at
6/30/2022
$881,397 $881,397
CC 12-06-2022
97 of 759
Attachment A
Page | 24
Dept.: Public Works
Project: Implement a Traffic-Adaptive Traffic Signal System along De Anza Blvd Local Authority:

TM-2011-03: MitigationTRANS-13c
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Traffic-Adaptive Traffic Signal System along De Anza Blvd fee is to implement traffic-adaptive technology to the traffic signals along De Anza Blvd within the jurisdiction of the City of Cupertino. Public facilities to be funded with the fees were described in:
a. Apple Campus 2: Ordinance 13-2114: Resolution Approving Apple Campus 2 Development Agreement – Section 3.13 and TM-2011-03: Mitigation TRANS-13c, dated 10/15/2013 for Tentative Map application ($50,000 collected)

2. A reasonable relationship exists between the traffic-adaptive traffic signal system along De Anza Blvd fee and the purpose for which the fee was charged in that new development will introduce additional traffic to De Anza Boulevard, and more efficient traffic signal timing will be needed to address the additional traffic. The fee was based on a fair-share contribution of the estimated total cost to install the traffic-adaptive technology. The need for traffic-adaptive technology, as it was identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete the traffic-adaptive technology upgrades will be provided through fair-share contributions from other developers that impact the corridor.

4. The approximate dates on which the funding for the traffic adaptive technology is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
TrafficAdaptive
Traffic Signal
System along
De Anza Blvd
$250,000 $54,396 100% Fair share
contributions
from other
developers
that impact
the corridor
Developer
contributions
obtained
when
adjacent
properties
redevelop.

Anticipated
Summer/2020
Fall/2019 Summer
2025
CC 12-06-2022
98 of 759
Attachment A
Page | 25
Annual Report
Amount of Fee: Based on Fair-Share Contribution assessed by engineer’s cost estimate FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$ 53,858 Amount $ -
Fees Collected 0 $ 50,000 Repayment Date
(est.)
na
Interest $538 $4,396
Expended 0 0
Refunded 0 0
Balance at
6/30/2022
$54,396 $54,396
CC 12-06-2022
99 of 759
Attachment A
Page | 26
Dept.: Public Works
Project: Interstate 280/Junipero Serra Channel Trail Improvements Local Authority:

TM-2011-03: Mitigation PLAN-3
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Interstate 280/Junipero Serra Channel Trail Improvements fee is to partially fund a feasibility study for a new trail along I-280/Junipero Serra Channel from N. De Anza Blvd to Calabazas Creek. Public facilities to be funded with the fees were described in:
a. Apple Campus 2: Ordinance 13-2114: Resolution Approving Apple Campus 2 Development Agreement – Section 3.13 and TM-2011-03: Mitigation PLAN-3, dated 10/15/2013 for Tentative Map application ($250,000 collected) b. Cupertino Property Development – Hyatt House – 10380 Perimeter Rd: DP-2014-04:

Condition of Approval No. 21, dated October 21, 2014, for Development Permit application ($66,000 collected).

2. A reasonable relationship exists between the I-280/Junipero Serra Channel Trail Improvements fee, and the purpose for which the fee was charged, in that the development in the vicinity of the proposed trail will introduce additional pedestrian and bicycle traffic between the new campus and the existing campus, causing the need to provide additional and alternative routes between the developments. The need for a new trail study, as it was identified during the review of the project, remains, as the study has not yet completed.

3. The sources and amounts of funding anticipated to complete financing of the study are identified below:
 Developer Fair-Share Contributions from other projects in the vicinity of the proposed trail location.

4. The approximate dates on which the funding for the bridge improvements is expected to be deposited into the appropriate account are identified on the next page.

CC 12-06-2022
100 of 759
Attachment A
Page | 27
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Interstate
280/Junipero
Serra Channel
Trail
Improvements
$500,000 $67,301 100% Additional
Developer
Contributions
are needed to
complete the
project
Developer
contributions
obtained
when
adjacent
properties
redevelop.

Ongoing.

Fall/2017 Spring/2024
Annual Report
Amount of Fee: Contribution equivalent to approximately 60% of the estimated cost of implementation FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$66,634 Amount $ -
Fees Collected 0 $ 316,000 Repayment Date
(est.)
na
Interest $667 $15,626
Expended 0 Callander
Assoc.

Contract
($264,325)
Refunded 0 0
Balance at
6/30/2022
$67,301 $67,301
CC 12-06-2022
101 of 759
Attachment A
Page | 28
Dept.: Public Works
Project: Contribution towards Stevens Creek Blvd. Bicycle Lane Improvements Local Authority:

ASA-2018-01: Condition of Approval No. 43
Five Year Reporting & Findings Requirement:

5. The purpose of the Stevens Creek Blvd. Bicycle Lane Improvement fee is to partially fund upgrades to the bicycle lanes on Stevens Creek Blvd in order to improve the enhance the safety of the bicycle lanes. Public facilities to be funded with the fees were described in:
a. Target Improvements: ASA-2018-01: Condition of Approval No. 22 dated August 14, 2018 for Architectural Site Approval ($75,000 collected)

6. A reasonable relationship exists between the Stevens Creek Blvd. Bicycle Lane Improvements fee and the purpose for which the fee was charged, in that the new development abuts Stevens Creek Blvd., and will introduce additional traffic to the area. The need for the improvements to the bicycle lanes, which were identified during the review of the project, remains.

7. The sources and amounts of funding anticipated to complete financing of the signal upgrades improvements are identified below:
 Developer Fair-Share Contributions from other projects along Stevens Creek Blvd.  It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.

8. The approximate dates on which the funding for the signal improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2022
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding
to be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Stevens Creek
Bicycle Lane
Improvements
(Wolfe Rd to
Hwy 85)
$2,800,000 $78,921 3% Developer
Contributions,
and General
Fund.

Winter/
2021
Spring/2021 Summer/2024
CC 12-06-2022
102 of 759
Attachment A
Page | 29
Annual Report
Amount of Fee: Contribution from developments, based on estimated costs to construct facilities along property frontages.

FY2021-22
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2021
$78,140 Amount $ -
Fees Collected 0 $ 75,000 Repayment Date
(est.)
na
Interest $781 $3,921
Expended 0 0
Refunded 0 0
Balance at
6/30/2022
$78,921 $ 78,921
CC 12-06-2022
103 of 759
Attachment B
RESOLUTION NO. 22-____

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING THE ANNUAL & FIVE-YEAR DEVELOPMENT IMPACT FEE REPORT FOR FY ENDING JUNE 30, 2022 AND MAKING REQUIRED

FINDINGS
WHEREAS, the Mitigation Fee Act (Government Code Section 66000 et seq.) requires that an annual report regarding development impact fees be submitted to the City Council at a regularly scheduled public meeting pursuant to Section 66006; and
WHEREAS, Government Code Section 66001(d) further provides that the City must, on a five-year basis, make certain findings with respect to unexpended development impact fees; and
WHEREAS, the City of Cupertino - AB 1600 ‐ Mitigation Fee Act Annual & Five-Year Report for the fiscal year that ending June 30, 2022 (the “Annual and Five-Year Report”), comprises the annual report required under Government Code Section 66006(b) and five-year report required under Government Code Section 66001(d) of the Mitigation Fee Act. Said report is included as Attachment A and incorporated into this Resolution by this reference.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby:

1. Acknowledge the foregoing recitals are true and correct and incorporated into this resolution by this reference.

2. Approves the Annual and Five-Year Report for FY ending June 30, 2022 in accordance with the Mitigation Fee Act and incorporates by reference said Report (Attachment A).

3. Adopts the findings required by Government Code 66001(d) as stated in the Five-Year Reporting and Findings Requirement section of the Annual and Five-Year Report (Attachment A), which demonstrate that, for each account or fund:

CC 12-06-2022
104 of 759
Resolution No. 22-____

a. The purpose of each fund is described in the Annual and Five-Year Report.
b. A reasonable relationship exists between the fee charged to development projects and the purpose for which it is charged, based on the substantial evidence contained in the Annual and Five-Year Report.
c. For each fund, the Annual and Five-Year Report identifies all sources and amounts of funding anticipated to complete the financing of incomplete improvements.
d. For each fund, the Annual and Five-Year Report designates the approximate date on which the funding needed is expected to be deposited into the fund.

BE IT FURTHER RESOLVED that 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, approving the report would have no or only a de minimis effect on the environment. The foregoing determination is made by the City Council in its independent judgment.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6
th day of December, 2022, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

CC 12-06-2022
105 of 759
Resolution No. 22-____

SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
CC 12-06-2022
106 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider authorizing the City Manager to award a construction contract with contingency budget for the Blackberry Farm Pool Improvements Capital Improvement Program (CIP) Project

1. Authorize the City Manager to award a construction contract in an amount not to exceed 90% of the appropriated project budget limits to the lowest responsive bidder if there are no unresolved bid protests; and

2. Authorize the Director of Public Works to allow a construction contingency budget of 20% of the construction contract amount to address unforeseen conditions discovered during construction File #: 22-11788, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
107 of 759

CITY COUNCIL STAFF REPORT
Meeting: 12/06/2022
Subject
Consider authorizing the City Manager to award a construction contract with contingency budget for the Blackberry Farm Pool Improvements Capital Improvement Program (CIP) Project.

Recommended Action

1. Authorize the City Manager to award a construction contract in an amount not to exceed 90% of the appropriated project budget limits to the lowest responsive bidder if there are no unresolved bid protests; and

2. Authorize the Director of Public works to allow a construction contingency budget of 20% of the construction contract amount to address unforeseen conditions discovered during construction.

Discussion
The Blackberry Farm Pools were originally purchased in 1991 and were reconditioned in 1995 and re-plastered in 2010. The industry standard to have pools re-plastered or otherwise improved in every 8-10 years. In 2019, $200,000 was allocated in the facilities operation budget to replaster the pools. The project was advertised for bid on October 23, 2019. One bid was received in the amount of $469,000. On December 3, 2019, Council rejected the bid, as it exceeded the available budget. The Director of Public Works was authorized to proceed with a project of reduced scope, primarily to perform spot repairs to resolve rust stains showing through the pool plaster to allow the facility to continue operating. These deficiencies were identified in the 2019 Cal OSHA inspection report.

The Blackberry Farm Pool Improvement Project was subsequently included in the Fiscal Year (FY) 2021-2022 CIP with an authorized project expenditure of $750,000. The Project will replaster the pools and make accessibility improvements as required by the building code. Work includes demolishing existing plaster down to the concrete shell, re-plastering, replacement of coping stone, redirecting the pool deck drains to an existing on-site bioswale, as well as building and site improvements necessary to bring the parking, restroom, and dressing room facilities into compliance with current California Building Code (CBC) and Americans with Disability Act (ADA) standards.

CC 12-06-2022
108 of 759
The Blackberry Farm Pool Improvements Project was advertised for Bid on November 09, 2022. The bid due date is scheduled for November 29, 2022, barring a potential extension of the bid due date to increase bidder interest which would delay bid results.

After receiving bids, staff must review the bids to ensure they are complete and responsive, an effort that could take several days. Established Council Agenda Submittal deadlines requiring all documents for the December 6 meeting to be finalized prior to November 29 precludes bid results from being summarized in this report. Staff requests the Council authorize the City Manager to execute a contract with the lowest responsive, responsible bidder, provided there are no unresolved bid protests as timely approval is necessary to execute a contract and complete work prior to the 2023 pool operation season. The award would be made to the lowest cost responsive bidder.

Approval of this item is essential to maintain the project schedule, which allows for completion prior to next year’s swim season. Bid results will be posted on the project web page once they are confirmed.

Sustainability Impact
The project scope does not have any direct sustainability impact, although properly maintaining the swimming pool facilities can reduce energy and water consumption over time.

Fiscal Impact
The FY 21-22 Budget allocated $750,000 for the Blackberry Farm Pool Improvements Project (Budget Unit 420-99-073 900-905). Of that amount, $691,000 is currently available for construction and construction support services. No additional appropriations are requested at this time.
_____________________________________
Prepared by: Jo Anne Johnson, Public Works Project Manager Reviewed by: Susan Michael, Capital Improvements Program Manager Reviewed by: Matt Morley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:

None
CC 12-06-2022
109 of 759

CITY OF CUPERTINO
Legislation Text
Subject: Consider directing staff to prepare a City Ordinance to govern the permitting of small cellular facilities within the public right of way
Consider directing staff to prepare a City Ordinance for Council approval to govern permitting of small cellular facilities within the public right of way and provide input on the list of recommended modifications to the regulations listed in the staff report Presenter: Chad Mosley, Assistant Director of Public Works File #: 22-11592, Version: 1
CITY OF CUPERTINO Page 1 of 1 Printed on 11/30/2022
powered by Legistar™
CC 12-06-2022
110 of 759

CITY COUNCIL STAFF REPORT
Meeting: December 6, 2022
Subject
Consider directing staff to prepare a City Ordinance to govern the permitting of small cellular facilities within the public right of way.

Recommended Action
Consider directing staff to prepare a City Ordinance for Council approval to govern permitting of small cellular facilities within the public right of way and provide input on the list of recommended modifications to the regulations listed in the staff report.

Executive Summary
Local authority to regulate small wireless facilities is limited under state and federal law.

In particular, the Federal Communications Commission (FCC) has established certain limits and regulations regarding the permitting of small wireless facilities. These limits are designed to facilitate rapid deployment of small wireless (“5G”) cellular networks.

These limits include generally:
 Time limits on the processing of small cell permit applications (Shot Clocks).  Federal preemption of state or local regulations relating to the health effects of small wireless facilities.
 Federal preemption of any local regulation that “materially inhibits” the construction of small wireless facilities.

Local jurisdictions retain the ability to regulate small wireless facilities based on public safety and reasonable aesthetic concerns. To reduce the aesthetic impacts of small wireless facilities, a local government can set design standards such as requiring screening or shrouding of facilities and having equipment coloring match the pole.

These design standards must be technically feasible and directed at addressing aesthetic harms and may not have the effect of prohibiting installations or preventing a carrier from improving the quality of their service.

Cupertino has also worked to enhance transparency of the permitting process for its residents through various avenues, including mailed notices, extensive online information, e-notification of permitting activities and other means, including the longest notification period of any jurisdiction in Santa Clara County.

CC 12-06-2022
111 of 759
Staff has prepared a draft ordinance that strengthens the City’s permitting process for small wireless facilities while complying with federal regulations and state law. Staff is requesting input on the modified regulations listed here and discussed in further detail in the staff report:
1) Establish standards for more- and less-preferred locations for small wireless facilities.
2) Include procedures for RF exposure verification and authorize the Public Works Director to obtain a peer review of RF exposure analyses. 3) Amend the timing of certain pre-application notification activities to ensure consistency with shot clock requirements.
4) Grant applicants and residents or owners within 300 feet of a proposed wireless facility the right to appeal the Public Works Director’s decision regarding a permit application to the City Manager.
5) Authorize the Public Work’s Director to revoke or modify permits based on changes in the state or federal law that expand the City’s authority. 6) Establish a 750-foot separation radius between small wireless facilities from the same carrier.

Background
Small cell wireless communication facilities, sometimes called "5G", are a type of wireless infrastructure. Traditionally, wireless facilities have been large antennas placed high above the ground that service a wide area (referred to as "macrocells"). Small wireless facilities provide spot coverage to a relatively small area, and therefore a denser network of small wireless facilities is required to provide wireless service. Small wireless facilities are typically installed on existing infrastructure such as streetlights.

However, because small wireless facilities are often installed in close proximity to homes and businesses, local jurisdictions have developed targeted regulations to aid in addressing the impacts of the facilities.

The City has held six City Council study sessions on the subject of small wireless facilities. These study sessions covered many matters including legal issues, aesthetic concerns, permitting guidelines, and siting preferences. Much of what was discussed at these meetings, including the federal and state laws governing the installation of these facilities, remains relevant. Links to videos of these meetings, as well as additional information on small cell facilities, can be found on the City’s webpage here:
https://www.cupertino.org/our-city/departments/public-works/permittingdevelopment-services/small-cell-information At the City Council meeting on April 20, 2021, Council was presented with updated permitting guidelines for small cell wireless facilities in the public right of way. Council requested at this meeting that staff consider creating an ordinance to further support the CC 12-06-2022
112 of 759
permitting guidelines and to establish objective criteria for the siting of the facilities.

Staff has prepared a draft ordinance (Attachment A) and draft regulations (Attachment B) for review. Staff intends to bring an ordinance to Council for a first reading and to request Council approval of the wireless regulations in 2023, based on input from this study session. Staff intends to present the draft ordinance and regulations to the Technology, Information & Communication Commission (TICC) before returning to Council.

Background on Relevant State and Federal Law and Regulations Under state and federal law, wireless communications providers are given the right to install wireless facilities, including small wireless facilities, within the public right of way, subject to certain preserved local powers. The City of Cupertino currently requires encroachment permits for installation of small wireless facilities in the public right of way, which in turn are subject to the City’s Guidelines for Encroachment Permit Submittals for Wireless Communications Facilities on City Owned Poles (Attachment C) (“Guidelines”).

Small wireless facilities are also subject to conditions contained within Master License Agreements between wireless providers and the City.

Federal and state law restrict the City’s authority to regulate small wireless services.

However, the City retains the authority to address aesthetic and public safety concerns arising from the installation of small wireless facilities, subject to the conditions discussed below.
 Regulation of Wireless Facilities May Be Based on Aesthetic and Public Safety Concerns
State and federal law and regulations, including the Federal Telecommunications Act (FTC) of 1996 and provisions of the California Government Code and Public Utilities Code, govern how local jurisdictions may regulate wireless facilities, including small wireless facilities installed in the public right of way. Local governments, retain the authority to establish aesthetic conditions for land use, including the authority to regulate small wireless facilities’ design and placement, as long as placement regulations to not inhibit a carrier’s ability to enhance their services. They also have authority to manage the right of way to ensure public safety and to coordinate uses.

These powers enable local governments to enact regulations that would prevent small cell facilities from interfering with use of the right of way and to protect public safety by ensuring the poles on which small cells are mounted will securely bear their weight. To reduce the aesthetic impacts of small cell facilities, a local government can set design standards such as requiring screening of facilities and having equipment coloring match the pole. Under FCC regulations, local aesthetic requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) published in advance.

CC 12-06-2022
113 of 759
 Regulation of Wireless Facilities Must Not Be Based on Health Concerns Under federal law, a local government may not set standards for wireless facilities based on concern over Radio Frequency (RF) emissions from those facilities, beyond requiring that those facilities’ emissions meet the FCC’s established emission limits. RF emissions from small wireless facilities in Cupertino typically fall around 100 times below the FCC’s limits. So long as a small wireless facility complies with FCC standards, the City may not establish location requirements, deny a permit application, or impose permit conditions for the facility based on concerns over its perceived health effects.
 Regulation Must Not Have the Effect of Prohibiting Wireless Service Federal law also requires that local government regulation of wireless service not prohibit or have the effect of prohibiting the provision of personal wireless services.

The FCC’s September 2018 Order specified that “an effective prohibition occurs” when a regulation “materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service.” It further specified that a local jurisdiction’s regulation of wireless services can amount to an effective prohibition where it prevents a carrier from improving the quality of their service or from adding new technologies and services, not just where it prevents a carrier from filling gaps in service.

This means that a jurisdiction cannot deny a service provider’s wireless facility application on the basis that the jurisdiction finds the provider’s existing coverage or range of services adequate. Local governments also may not enact a blanket prohibition on installation of small wireless facilities in a particular area of the City or in specific neighborhoods. However, a jurisdiction could have grounds to deny a specific placement of a small cellular facility if there is a reasonable alternative location available
 “Shot Clocks” for Review of Small Cell Facility Applications Federal law also requires local governments to act on applications for new wireless facilities within “a reasonable period of time.” The FCC’s September 2018 Order sets time limits, or “shot clocks,” defining presumptively reasonable periods of time for review of small cell facility applications. Under the FCC’s Order, a jurisdiction has 60 days to review an application for collocation of a small wireless facility on an existing structure and 90 days for review of an application to permit a new small wireless facility.

Discussion
Since the City Council study session in April 2021, the City has continued to monitor the lawsuit between the City of Los Altos and both Verizon Wireless and AT&T Wireless.

Verizon and AT&T each sued the City of Los Altos after the Los Altos City Council denied applications for 12 AT&T small cell applications and one Verizon application in December 2019. The lawsuits contended that Los Altos’ small cell regulations amounted CC 12-06-2022
114 of 759
to an unlawful ban on wireless services in most of the city. Those regulations prohibited small cell installations within 500’ of school buildings and in any residential district, unless an applicant could establish that denial of a small cell site in one of those areas deprives a carrier of its rights under federal and state law. Although both carriers presented the City with information explaining why the sites in question were necessary to meet their service needs, the City Council found that the information was insufficient to establish that a denial would violate the law.

The City of Los Altos revised its wireless ordinance in June 2022. These revisions no longer ban small cell facilities near schools or in residential areas but establish a tier of preferred and less preferred locations, similar to those used by the City of Cupertino.

After the revisions to the Los Altos ordinance were made, the judge dismissed the lawsuit reasoning that the revised Ordinance rendered the carriers’ complaints moot.

The carriers are appealing that decision. The City of Los Altos’ updated wireless ordinance can be found here:
https://www.losaltosca.gov/sites/default/files/fileattachments/ordinance/81891/ordinanc e_no._2022-486_wireless.pdf
Prior study sessions have raised numerous issues relating the regulation of small wireless issues. Those issues are discussed below.

Outreach
The City has worked to ensure that outreach for small wireless facility permitting is extensive yet compliant with federally mandated shot clock timelines. The City’s webpage provides opportunities for residents to be notified of small wireless facility permitting activity and contains information on wide array of topics relevant to small wireless facilities.

To ensure residents are aware of permitting activities, the City has created the following avenues of notification:
 Cupertino.org - The City’s Small Cell webpage provides residents with an opportunity to sign up for email notifications of any permitting activities:
https://www.cupertino.org/our-city/departments/public-works/permittingdevelopment-services/small-cell-information  Mailed Notifications - Any properties located within 500-feet of a proposed small cell facility receive a letter in the mail from the wireless carrier that provides information on the proposed installation, including a photo simulation of the facility, and includes contact information where they can provide input and ask questions. A new requirement that would be enacted with the proposed regulations would be to have prominently displayed on the front of the mailed envelope “NEW WIRELESS FACILITY INFORMATION” in order to enhance transparency and to reduce misunderstandings. The City provides a three-week (21-day) noticing period for residents to provide input before a permit is processed any further. However, the City accepts and reviews the CC 12-06-2022
115 of 759
correspondence from residents regarding small wireless facilities, even after the comment period has ended. Federally mandated shot clocks for permit reviews have limited the time the City has to notice, review, and permit small wireless facilities. However, Cupertino has initiated a permitting process that meets the time constraints, yet also provides for the longest noticing period of any City in Silicon Valley.
 Responses to Inquiries: Every inquiry made in response to the mailed notifications is logged and includes (when provided) the inquirer’s name, address, contact information, and a brief description of their concerns or questions. The City tracks this information and works to address issues and concerns where possible and permissible by federal law.  Door Hangers – Seven days prior to the start of permitted construction activities, wireless providers are required to place "door hanger” notices on all properties within 100 feet of the small cell facility.

The City also provides informational material on its Small Cell webpage (link provided above), which includes an FAQ, relevant links regarding federal regulations, small wireless facility permitting guidelines, design standards, links to past meetings, a survey that collects feedback from residents, and a GIS map that provides information on proposed, permitted, and active cell sites, including links to post-construction EMF reports for active cell sites.

Aesthetics
The City of Cupertino, through coordination with various wireless providers, has developed aesthetic standards for small cell facilities on street light poles that accommodate equipment from all wireless providers while ensuring a generally homogenous appearance for the facilities. The intent of the aesthetic standards is to ensure the City had an objective design standard for each carrier to follow and to ensure consistency of design among different facilities. The City Council recommended developing a homogenous design in 2016 and recognized the aesthetic design standards for small wireless facilities (Attachment D) in 2017, when it approved the AT&T master agreement.

Distances between small wireless facilities
The current Guidelines require that small cell facilities owned by the same carrier be spaced at least 500’ apart, unless a carrier can provide documentation showing that a closer site is the only feasible location that meets their service needs.

The FCC’s September 2018 Order states that “a minimum spacing requirement [for small cells] that has the effect of materially inhibiting wireless service would be considered an effective prohibition of service” (FCC 18-133 paragraph 87). The current Guidelines set a minimum spacing that reflects small cells’ limited signal strength and stipulates that spacing distances are between facilities from the same carrier in order to ensure no CC 12-06-2022
116 of 759
single carrier can install facilities in a manner that prohibits other carriers from providing services within a certain area (in effect monopolizing service in the vicinity).

Noticing of planned installations
Due to the FCC’s September 2018 Order which set time limits for completion of the review of small cell facility applications, the City typically has 90 days to review an application for a small cell facility. As part of the Guidelines’ application procedure, the City has incorporated a public notification process whereby carriers are required to notify, via mailed letter, all property owners located within 500’ of the proposed location. If an ordinance is adopted, staff recommends reducing this distance to 300’ to be consistent with standards used for other permits in the City, consistent with the requirements of FCC regulations. Property owners may comment to the carriers or directly to the City. Under the Guidelines, carriers are required to track and provide a log of all comments and responses to the City for consideration.

The City has set a 21-day period in which the public can comment on the installation.

Although comment period is 21-days, in practice, the City accepts and reviews all correspondence from residents regarding small cell facilities, even after the comment period has ended. It should be noted that Cupertino has the longest comment period of any of its surrounding communities, with other cities having comment periods that range from 7 days to 20 days:

Cupertino - 21 Days
Campbell - 14 Days
Los Altos - 10 Days
Los Gatos - 20 Days
Mountain View - 7 Days
Palo Alto - 14 Days
San Jose - 20 Days
Sunnyvale - 14 Days
To provide further notification, transparency, and information to Cupertino residents, the City has created an online GIS map and e-notification sign-up list. The GIS Map shows all proposed, permitted, and active small wireless facilities within the city, and the e-notification signup will alert interested parties, via email, of any updates to the map. The GIS map and e-notification signup can be found on the Cupertino website here: https://www.cupertino.org/our-city/departments/public-works/permittingdevelopment-services/small-cell-information.

Site Preference Guidelines
The City established site preference standards to help ensure permitted small cell facilities are installed to minimize visual impacts and to prioritize commercial locations.

The standards provide three tiers of preference as follows:
 Preferred Sites (Category 1)
CC 12-06-2022
117 of 759
 Less Preferred Sites (Category 2)
 Least Preferred Sites (Category 3)
Category 1 (preferred) sites include any streetlight pole located in non-residential zoning districts that do not trigger a Category 2 or 3 designation. Applications submitted for poles in Category 1 locations are reviewed strictly for engineering and constructability concerns. They follow standard noticing procedures, but do not require an alternative location assessment or documentation to establish need for their placement.

Category 2 (less preferred) sites include any streetlight poles in residential zoning districts that do not trigger a Category 3 designation. If a carrier seeks to install a small cell facility in a Category 2 site, it must show that any Category 1 site or any more preferred Category 2 site within 500’ is infeasible to meet their needs.

Category 3 (least preferred) sites include any streetlight poles in residential zoning districts that also are located within any of the following areas:
 Closer than 15 feet to a signalized public roadway intersection. An intersection is measured from the start of the curb radius.
 Closer than 500 feet to any other small cell facility in the right of way owned by the same wireless carrier.
 Closer than 20 feet to an occupied structure.
 Closer than 100 feet to any public-school building.
 Closer than 100 feet to any publicly accessible playground.

A facility shall not be permitted in a Category 3 site if non-Category 3 sites are available within 500 feet of the proposed facility, unless the applicant can provide documentation showing that a specific Category 3 site is the only feasible option available to meet the carrier’s needs.

The draft wireless regulations include revised location preferences. The seven tiers listed in the revised regulations are similar to the those provided in the Guidelines and reflect the fact that preferred locations for small wireless facility installation would be in nonresidential areas, with subsequent tiers establishing varying levels of preference in residential areas. This new tiered system adds installations on wooden utility poles and strand-mounted facilities as least preferred locations due to the aesthetic impacts these facilities have on neighborhoods and the surrounding areas.

Additional Information
The City has executed five master license agreements with wireless service providers to permit installation of small cell facilities on City owned streetlight poles. These companies include AT&T, Crown Castle, Extenet, Mobilitie, and Verizon. The license agreements require the companies to obtain encroachment permits for proposed small wireless facilities, which in turn require compliance with applicable legal requirements.

CC 12-06-2022
118 of 759
They also include other conditions such as the requirement for providers to verify that RF emissions are within the FCC limits after the facility has been activated, as well as term lengths for the permits. The City is actively responding to small wireless facility permit applications from AT&T and Verizon, with Verizon having submitted the most applications to date.

To date, most of the small cell installations within Cupertino have been situated east of Highway 85. Small cell facilities typically require fiber optic backhaul for information, meaning that in order for these facilities to be able to transmit data, they need to receive information from fiber optic systems. The fiber optic networks currently in operation within Cupertino are localized on the east side of the city. Fiber optic providers are slowly expanding their networks westward through the city, but that expansion is ongoing and is a slow process. Highway 85 has also acted as a barrier that hinders westward expansion of fiber optic networks, which is why there are few small cell facilities west of the highway at this time.

Draft Ordinance
Cupertino has historically regulated small wireless facilities using encroachment permits and formal administrative written guidelines. In response to Council direction, staff has prepared a draft ordinance tailored specifically to wireless facilities in the public right of way. Staff has also prepared regulations that include siting preferences and design requirements. The adoption of the regulations would be authorized by the draft ordinance. The intent of the proposed ordinance and regulations is to ensure that local control over the placement of small wireless facilities is retained to the greatest extent permitted under state and federal law, while also creating clear, enforceable rules that can be applied by the Public Works staff who administer the program.

The draft ordinance includes the following provisions:
 Requires carriers to obtain a “wireless ROW permit” for any installation of a wireless facility in the public right of way.
 Authorizes the adoption of regulations to implement the provisions of the ordinance. The ordinance requires any revisions to the regulations other than a minor modification, as defined, to be approved by the City Council.  Establishes an application procedure and requires that applicants provide notice to all residents and property owners within 300’ of a proposed small wireless facility.
 Authorizes the City Council to establish a fee for processing a wireless ROW permit application.
 Authorizes the Public Works Director to make findings to approve or deny a wireless ROW permit application and provides for an administrative appeal of the Director’s decision.
 Includes provisions for the revocation of permits and the removal of equipment following the revocation or termination of a wireless ROW permit.

CC 12-06-2022
119 of 759
The draft wireless regulations include the following provisions:
 Establishes specific application requirements, including requirements to evaluate alternative locations for the proposed small wireless facilities and to prepare a RF compliance report for each facility. The regulations also incorporate RF testing requirements stipulated in the City’s master license agreements.  Encourages a voluntary pre-submittal community meeting, consistent with the FCC rulemaking.
 Authorizes the peer review of applicant submittals, including RF compliance reports, at the expense of the applicant.
 Establishes standard conditions of approval.
 Establishes siting and placement preferences for small wireless facilities, with mixed-use and non-residential districts being the most preferred locations.  Includes detailed design standards, including standards for noise, landscaping, concealment, lighting, and facility size.
 Establishes a 750-foot separation radius between small wireless facilities from the same carrier unless the applicant demonstrates that installation of the facility located within the radius is required by applicable state or federal law, or the Director determines a less-preferred location is necessary to protect public health, safety, or welfare, based on clear and convincing evidence and specific characteristics of the location of the proposed facility.

Staff will incorporate Council input on the draft ordinance and regulations and will return to Council for a first reading of the ordinance and approval of the regulations.

Sustainability Impact
No sustainability impact for hearing this report.

Fiscal Impact
There is no fiscal impact for hearing this report.
_____________________________________
Prepared by: Chad Mosley, Assistant Director of Public Works Reviewed by: Matt Morley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Ordinance
B – Draft Wireless Regulations
C – Guidelines for Encroachment Permit Submittals
D – Small Cell Design Standards
CC 12-06-2022
120 of 759
Attachment A
1 Chapter 14.30 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY

14.30.010 Purpose.

The purpose of this chapter is to establish a process for uniform standards for reviewing and acting upon requests for the placement of wireless facilities within the public rightsof-way of the City consistent with the City’s obligation to promote the public health, safety, and welfare, to manage the public rights-of-way, and to ensure that the public is not incommoded by the use of the public rights-of-way for the placement of wireless facilities. The City recognizes the role of personal wireless facilities to provide personal wireless service to the residents and businesses within the City. No provision of this chapter shall be interpreted in a manner that violates state or federal law.

14.30.020 Definitions.

A. The abbreviations, phrases, terms, and words used in this chapter will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms, or words in this policy will have their ordinary meanings.

B. The definitions in this chapter shall control over conflicting definitions for the same or similar abbreviations, phrases, terms, or words as may be defined elsewhere in the Municipal Code.

C. Definitions.

1. “Applicant” means a person filing an application for placement or modification of a wireless facility in the public right-of-way.

2. “Application” means a formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless ROW permit.

3. “City Manager” means the City Manager or their designee.

4. “Director” means the Director of the Department of Public Works or their designee.

5. “Eligible facilities request” has the meaning as set forth in 47 C.F.R. Section

1.6100(b)(3), or any successor provision.

6. “FCC” means the Federal Communications Commission or its lawful successor.

CC 12-06-2022
121 of 759
Attachment A
2 7. “Permittee” means any person or entity granted a wireless ROW permit pursuant to this chapter.

8. “Personal wireless services” has the same meaning as set forth in 47 U.S.C.

Section 332(c)(7)(C)(i).

9. “Public right-of-way,” “right-of-way,” or “ROW” means any public street, public way, or public place within the City limits, either owned by the City, dedicated to the City or granted by easement to the public for the purpose of travel, and which the City has the responsibility to maintain or manage. “Public right-of-way,” “right-of-way,” or “ROW” includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for travel purposes.

10. “Support structure” means any structure capable of supporting a base station.

11. “Wireless facility” or “facility” means the transmitters, antenna structures, and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s) used to provide personal wireless services.

12. “Wireless regulations” means regulations adopted pursuant to Section 14.30.040 and implementing the provisions of this chapter.

13. “Wireless ROW permit” means a permit issued pursuant to this chapter authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the right-of-way.

14.30.030 Applicability.

A. Permit Required. Unless exempted, every person who seeks to place a wireless facility in the public rights-of-way or modify an existing wireless facility in the public rights-of-way must obtain a wireless ROW permit authorizing the placement or modification of the facility in accordance with this chapter.

B. Exemptions. This chapter does not apply to any of the following:

1. The placement or modification of facilities by the City or by any other agency of the state solely for public safety purposes.

2. The use of a mobile wireless facility to provide temporarily for wireless services in the event of an emergency, for no longer than the duration of interruption in CC 12-06-2022
122 of 759
Attachment A
3 services due to the emergency. This exception does not authorize the excavation, movement, or removal of existing functional facilities.

3. Wireless communications facilities permitted under Chapter 19.136.

C. Other Legal Requirements. In addition to the requirements of this chapter, an applicant seeking to place wireless facilities in the right-of-way shall comply with other applicable local, state, and federal laws and regulations, including but not limited to applicable FCC regulations governing radio frequency emissions, the Americans with Disabilities Act, and all applicable building standards. A valid wireless ROW permit issued pursuant to the requirements of this chapter and the wireless regulations shall be deemed to satisfy the requirements of Municipal Code Chapter 14.08.

D. Existing Wireless Facilities. Any permitted wireless facility already existing in the right-of-way as of the date of this chapter’s adoption shall remain subject to the standards and conditions of the Municipal Code in effect prior to effective date of this chapter, unless and until a renewal of such facility’s then-existing permit is granted, at which time the provisions of this chapter shall apply in full force going forward as to such facility.

The review of any request for a renewal of a permit for such pre-existing facilities shall be conducted pursuant to this chapter.

E. Public Use. Except as otherwise provided by state or federal law, any use of the public right-of-way authorized pursuant to this chapter will be subordinate to the City’s use and use by the public.

14.30.040 Wireless Standards and Regulations.

A. Adoption and Amendment Regulations. The Director shall develop wireless standards regulations to implement the requirements of this chapter including regulations governing eligible facility requests. The City Council shall approve the adoption of the wireless regulations and shall approve any amendments to the wireless regulations, except for minor modifications as set forth in Paragraph B. Applicants shall engineer, design, and locate the wireless facilities in accordance with the standards and wireless regulations adopted by the City Council.

B. Minor Modifications. The Director may approve any modification of the wireless regulations to the extent that such modification does not have the potential to substantially enlarge or expand the scope of use of the right-of-way for the provision of personal wireless service, the potential to interfere with the use or management of the right-of-way, or the potential to substantially impair public health, safety, and welfare CC 12-06-2022
123 of 759
Attachment A
4 (“minor modification”). The Director shall notify the City Council of a proposed minor modification of the wireless regulations at least 10 business days before the modification takes effect. Prior to the effective date of a proposed minor modification, any Councilmember may request that Council review the minor modification before it takes effect. A request for review shall stay the implementation of the minor modification until the City Council completes its review. The City Council may in its discretion approve, modify, or reject the proposed minor modification.

14.30.050 Applications.

A. Application Procedures. The Director shall develop forms and procedures for submission of applications for placement or modification of wireless facilities and proposed changes to any support structure consistent with this chapter.

B. Content of Application.

1. An applicant shall submit an application on the form approved by the Director, which may be updated from time to time, but in any event shall require the submission of all required fees, documents, information, and any other materials necessary to allow the Director to make required findings and ensure that the proposed facility will comply with applicable federal and state law and the Municipal Code and will not endanger the public health, safety, or welfare.

2. An application for an eligible facility request shall be made in a form approved by the Director and shall contain information sufficient to determine whether the proposed facility complies with the requirements of 46 C.F.R. § 1.6100. An application for an eligible facilities request shall be subject to the requirements of this chapter and the wireless regulations to the extent expressly stated in this chapter or the regulation.

D. Public Notice. At least 21 days prior to when an application may be approved, the applicant shall: (1) post notice at the proposed project site in a location near to and visible from the right-of-way; (2) notify in writing, in a form approved by the Director, of the filing of the application to property owners and residents of all property within a 300- foot radius of the proposed project; and (3) provide the City with evidence that notice has been provided pursuant to Subparagraphs (1) and (2). The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the Director acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least one hundred 180 calendar days.

The posted notice shall be at minimum 8.5 inches wide by 11 inches tall. The posted notice CC 12-06-2022
124 of 759
Attachment A
5 shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians, or other users in the right-of-way.

E. Fees. Application fees shall be set by resolution of the City Council and shall be required to be submitted with any application for a wireless ROW permit.

F. Review of Applications. Upon receipt of any fee established by this chapter, the Director shall review an application for the placement or modification of a wireless facility and shall issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued. If an application is incomplete, the Director may notify the applicant in writing, specifying the material omitted from the application. The Director may in their discretion deem any incomplete application withdrawn after 60 days.

14.30.060 Decisions of the Director.

A. Authority of Director. Subject to the rights of appeal provided herein, the Director shall determine whether to approve, approve subject to conditions, or deny an application. The Director may take such other steps as may be required to timely act upon applications for placement or modification of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.

B. Findings. Except for eligible facilities requests, the Director shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, they find each of the following:

1. The application is complete and provides all information required by this chapter and the wireless regulations.

2. The facility meets all applicable local, state, and federal health and safety standards, including federal standards for radiofrequency emissions.

3. The facility complies with this chapter and all applicable wireless standards and regulations.

The Director’s decision to approve, deny, or conditionally approve an application shall be in writing and include the reasons for the decision.

C. Eligible Facilities Requests. For eligible facilities requests, the Director shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, they find that the application meets the requirements set forth CC 12-06-2022
125 of 759
Attachment A
6 in 47 C.F.R. § 1.6100 and the proposed facility complies with all applicable state and federal laws and regulations. The conditions of any permit previously issued for the eligible facility shall apply to the maximum extent permitted by federal and state law and regulations.

D. Conditions of Approval. All permits issued under this chapter shall include conditions of approval sufficient to ensure compliance with the requirements of this chapter and the wireless regulations, as may be set forth in the wireless regulations.

E. Independent Consultants. The Director may in their discretion select and retain independent consultant(s) with expertise and appropriate credentials in telecommunications, building or structural standards, and/or electrical or fire safety in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including but not limited to application completeness or accuracy, engineering analysis, or compliance with FCC radio frequency emissions limits. Nothing in this paragraph authorizes the City to evaluate the health effects of a proposed wireless facility, except to determine that the facility complies with radio frequency emissions limits established by the FCC.

F. Waivers. Requests for waivers from any requirement of this chapter or the wireless regulations shall be made in writing to the Director. The Director may grant a request for waiver only if (1) the applicant demonstrates that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable state or federal laws or regulations, or (2) with respect to a standard or requirement set forth in the wireless regulations, the Director determines based on clear and convincing evidence that a waiver of the standard or requirement is necessary to protect public health, safety, or welfare, based on specific characteristics of the proposed facility. All waivers approved pursuant to this Paragraph shall be granted only on a case-by-case basis and shall be narrowly tailored so that the requirements of this chapter are waived only to the extent necessary to comply with state or federal law or regulations or to protect public health, safety, or welfare.

G. Notice to Interested Persons. The Director shall establish a procedure to allow any interested person who receives notice pursuant to Section 14.30.050(D) to be notified of any decision made pursuant to this Section.

CC 12-06-2022
126 of 759
Attachment A
7 14.30.070 Appeals.

A. Right to Appeal; Appeal Fee. Any person entitled to receive notice pursuant to Section 14.30.050(D) may request an administrative hearing to appeal the director’s decision. In order to request a hearing, the affected person shall submit to the City Clerk an administrative hearing form along with the full amount of any appeal fee. The request for administrative hearing shall be incomplete if it does not include the deposit in the full amount of any appeal fee. The deposit will be retained in a noninterest bearing account until the matter is resolved. Any appeal fee shall be refunded to the appellant if their appeal is granted. The administrative hearing form shall include the location or address of the proposed wireless facility that is subject of the appeal, as well as the grounds for which the appeal is being submitted.

B. Time to Appeal. Appeals must be filed within five business days of the mailing of decision notice of the Director unless a different time period is specified by the Director in the notice. The Director may extend the time period for filing an appeal for good cause; provided, however, an extension may not be granted where such extension would result in approval of the application by operation of law. If a timely and complete request for a hearing is not submitted, the Director’s decision shall be deemed final.

C. Administrative Hearing. If a timely and complete request for hearing is submitted, the City Manager shall conduct an administrative hearing within 30 days of receipt of the appeal or as soon thereafter as necessary to comply with applicable requirements of state and federal law. The City Manager may decide all issues presented de novo. The appellant and the applicant shall have the opportunity to present evidence; provided, however, that rules of evidence and discovery do not apply to the administrative hearings.

D. Decision on Appeal. The City Manager may affirm, reverse, or modify the Director’s decision and may modify conditions of approval to ensure that the decision complies with the requirements of this chapter and applicable local, state, and federal law. The City Manager’s decision shall be in writing, shall explain the basis for the decision, and shall be served upon the applicant and upon the appellant (if different) by first class mail to the address stated on the request for hearing form. The written decision of the City Manager shall be the final decision of the City effective on the date of mailing.

14.30.080 Revocation of Permits; Removal of Equipment; Enforcement.

A. Revocation of Permit. A wireless ROW permit may be revoked (1) for failure to comply with the conditions of the permit, any provision of the Municipal Code, or CC 12-06-2022
127 of 759
Attachment A
8 applicable state or federal law; (2) if the permittee becomes ineligible for franchise rights under state law; or (3) if the permittee’s FCC authorization to operate wireless facilities and/or provide wireless service is terminated for any reason. The Director shall provide the permittee notice and the opportunity to be heard prior to the revocation of any permit, the procedures for which may be set forth more fully in the wireless regulations.

B. Removal of Wireless Facilities. The Director may order the removal of any wireless facility upon revocation or termination of its wireless ROW permit and of any wireless facility installed or modified after the effective date of the ordinance codified in this chapter without a validly issued wireless ROW permit; provided, however that removal of a support structure owned by the City, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All entities that own or control any part of a wireless facility shall be jointly and severally liable for any costs incurred by the City in connection with enforcement of this provision and the removal of the facility.

C. Administrative Penalties. In addition to any criminal, civil or other legal remedy established by law that may be pursued to address violations of this chapter, the Director may issue an administrative citation under Chapter 1.10 for the violation of any provision of this chapter or any regulation adopted pursuant to Section 14.30.040.

14.30.090 Nondiscrimination.

In establishing the rights, obligations, and conditions set forth in this chapter, it is the intent of the city to treat each applicant or public right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, and with considerations that may be unique to the technologies, situation and legal status of each particular applicant or request for use of the right-of-way.

CC 12-06-2022
128 of 759
1 Attachment B

CITY OF CUPERTINO REGULATIONS FOR CONSTRUCTION, OPERATION, AND

MAINTENANCE OF WIRELESS FACILITIES IN THE PUBLIC RIGHT OF WAY (MUNICIPAL CODE CHAPTER 14.30)
SECTION 1. PURPOSE AND INTENT
The City of Cupertino (“City”) adopts these wireless regulations (“Regulations”) to establish reasonable, uniform, and comprehensive standards and procedures for the implementation of Municipal Code Chapter 14.30. The standards and procedures set forth in these Regulations should be applied to protect and promote public health, safety, and welfare and balance the benefits that flow from robust, advanced wireless services with the City’s local values, which include without limitation the aesthetic character of the City, its neighborhoods, and community. The Regulations are intended to establish regulations and standards for wireless facilities unless specifically prohibited by applicable law.

SECTION 2. DEFINITIONS
The definitions in this Section 2 are applicable to the terms, phrases, and words of these Regulations. Undefined terms, phrases, or words will have the meanings assigned to them in the Municipal Code or 47 U.S.C. § 153, or if not defined in either therein, will have their ordinary meanings. If any definition assigned to any term, phrase, or word in this Section 2 conflicts with any federal or state-mandated definition, the federal or statemandated definition will control. “Accessory equipment” means equipment other than antennas used in connection with a wireless facility and includes “transmission equipment” as defined by the FCC in 47 C.F.R. § 1.6100(b)(8).
“Antenna” means the same as defined by the FCC in 47 C.F.R. § 1.6002(b). “Collocation” means the same as defined by the FCC in 47 C.F.R. § 1.6002(g). “CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, § 5, or its duly appointed successor agency. “Decorative pole” means any pole that includes decorative or ornamental features, design elements and/or materials intended to enhance the appearance of the pole or the right-of-way in which the pole is located.
“Director” means the Director of Public Works or their designee. “Eligible facilities request” means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(3).

CC 12-06-2022
129 of 759
2 Attachment B
“FCC” means the Federal Communications Commission or its duly appointed successor agency.
“FCC Shot Clock” means the FCC’s presumptively reasonable time frame, accounting for any tolling or voluntary extension, or unusual circumstances justifying additional time, within which the City generally must act on a duly filed request for authorization in connection with a personal wireless service facility, as such time frame is defined by the FCC. For small wireless facilities, the FCC Shot Clock is 60 days for collocations and 90 days for new structures.
“OTARD” means an “over-the-air reception device” and includes all antennas and antenna supports covered by 47 C.F.R. § 1.4000(a)(1).
“Personal wireless services” means the same as defined in 47 U.S.C. §332(c)(7)(C)(i). “Personal wireless service facilities” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i).
“Public right-of-way” or “right-of-way” means the same as defined in Municipal Code Section 14.30.020C(9).
“RF” means radio frequency or electromagnetic waves.
“Shot clock days” means calendar days counted toward the presumptively reasonable time under the applicable FCC Shot Clock. The term “shot clock days” does not include any calendar days on which the FCC Shot Clock is tolled. “Small wireless facility” means the same as defined by the FCC in 47 C.F.R. § 1.6002(l). “Support structure” means a “structure” as defined by the FCC in 47 C.F.R. §1.6002(m). “Underground district” means any area in the City within which overhead wires, cables, cabinets, and associated overhead equipment, appurtenances, and other improvements are either (1) prohibited by ordinance, resolution, or other applicable law; (2) scheduled to be relocated underground within 18 months from the time an application is submitted; or (3) primarily located underground at the time anapplication is submitted. “Wireless facility” or “facility” means the same as defined in Municipal Code Section

14.30.020C(11).
“Wireless ROW permit” or “Small Cell Facility Encroachment Permit” means the same as defined in Municipal Code Section 14.30.020C(13).

SECTION 3. APPLICABILITY
a. Wireless Facilities. Except as expressly provided otherwise, the provisions in these Regulations shall be applicable to all applications and requests for CC 12-06-2022
130 of 759
3 Attachment B
authorization to construct, install, attach, operate, collocate, modify, reconstruct, relocate, remove, or otherwise deploy wireless facilities within the public rightsof-way within the City’s jurisdictional and territorial boundaries. b. Exemptions. These Regulations shall not apply to any facility exempt from Chapter 14.30 of the Municipal Code pursuant to Section 14.30.030B. c. Eligible Facilities Requests. Eligible facilities requests shall comply with Sections 4(b)-(d), 4(h)-(n), and 5(c)-(d) and all applicable requirements of Section 8 but shall otherwise be exempt from the requirements of these Regulations.

SECTION 4. APPLICATION AND REVIEW PROCEDURES
a. Application Requirements for Wireless ROW Permits. All applications for wireless ROW permits must comply with the requirements of Municipal Code Section 14.30.050 and the requirements of this Section 4. b. Application Form. The applicant shall submit a complete, duly executed wireless ROW permit application on the current City of Cupertino form. c. Application Fee. The applicant shall submit the applicable wireless ROW permit fee established by City Council resolution. If no application fee has been established for the specified work, then the applicant must submit a signed written statement that acknowledges that the applicant will be required to reimburse the City for its reasonable costs incurred in connection with the application within 10 days after the City issues a written demand for reimbursement. d. Construction Drawings. The applicant shall submit true and correct construction drawings, prepared and signed by a licensed or registered engineer, that depict all the existing and proposed improvements, equipment and conditions related to the proposed facility, including without limitation all poles, posts, pedestals, traffic signals, towers, streets, sidewalks, pedestrian ramps, driveways, curbs, gutters, drains, handholes, maintenance holes, fire hydrants, equipment cabinets, antennas, cables, utilities, and trees and other landscape features. The construction drawings must: (1) contain cut sheets that contain the technical specifications for all existing and proposed antennas and accessory equipment, which includes without limitation the manufacturer, model number and physical dimensions; (2) depict the applicant’s preliminary plan for electric and data backhaul utilities, including the anticipated locations for all conduits, cables, wires, handholes, junctions, transformers, meters, disconnect switches, and points of connection; (3) include locations for existing utility facilities within 50 feet of the footprint of work; and (4) demonstrate that proposed facility will be in full compliance with all applicable health and safety laws, regulations, or other rules, including without CC 12-06-2022
131 of 759
4 Attachment B
limitation all building codes, electric codes, local street and sidewalk standards and specifications, and public utility regulations and orders. All pole attachments shall be shown with pole numbers.
e. Site Survey. The applicant shall submit a survey prepared, signed, and stamped by a licensed engineer. The survey must identify and depict all existing boundaries, encroachments, and other structures within 75 feet from the proposed facility and any new improvements, including without limitation all (1) traffic lanes; (2) private properties and property lines; (3) above and below-grade utilities and related structures and encroachments; (4) fire hydrants and other public safety infrastructure; (5) streetlights, decorative poles, traffic signals, and permanent signage; (6) sidewalks, driveways, parkways, curbs, gutters, and storm drains; (7) benches, bus stops, trash cans, mailboxes, kiosks, and other street furniture; and (8) existing trees, planters, and other landscaping features. f. Photo Simulations. The applicant shall submit site photographs and photo simulations that show the existing location and proposed wireless facility in context from at least two vantage points within the public streets or other publicly accessible spaces, together with a vicinity map that shows the location of the proposed facility and the photo location for each vantage point. At least one simulation must depict the wireless facility from a vantage point approximately 50 feet from the proposed support structure or location. The photo simulations and vicinity map shall be incorporated into the construction plans submitted with the application.
g. Identification of Alternative Locations. The applicant shall provide an inventory of support structures and other feasible locations within 500 feet of the proposed location and explain the basis for the selection of the proposed location. h. RF Compliance Report. The applicant shall submit an RF exposure compliance report that certifies that the proposed wireless facility, both individually and cumulatively with all other emitters that contribute more than 5% to the cumulative emissions in the vicinity (if any), will comply with applicable federal RF exposure standards and exposure limits. The RF report must be prepared and certified by an engineer acceptable to the Director. The RF report must include the actual frequency bands and power levels (in watts effective radiated power) for all existing and proposed antennas at the proposed facility and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC).

CC 12-06-2022
132 of 759
5 Attachment B
Each such boundary shall be clearly marked and identified for every transmitting antenna at the proposed facility.
i. Public Notices. The applicant shall include with the application an affidavit that attests that notice has been posted at the site of the proposed facility and provided to property owners and residents of all property within a 300-foot radius of the proposed facility pursuant to Municipal Code 14.30.050(D). The notices shall be posted and delivered on forms approved by the Director and must contain:
(1) a general description of the proposed wireless facility; (2) the applicant’s identification and contact information as provided on the application submitted to the City for interested parties to submit comments; (3) contact information for the Public Works Department; (4) a statement that the Director will act on the application without a public hearing and that the owner or occupant may request to be notified of the Director’s decision; (5) a general statement that the FCC requires the City to take final action on applications for wireless facilities within 60 days for collocations and 90 days for facilities on new support structures; and (6) a statement that any person that wishes to seek a reasonable accommodation under the American with Disabilities Act or Fair Housing Amendments Act may do so. The notice should provide the location, date, and time of a community meeting, if applicable. The notice shall be delivered in an envelope that prominently displays the operator’s logo and shall prominently display the text “NEW WIRELESS FACILITY INFORMATION” on the front of the envelope. The applicant shall maintain (and provide to the Director, at the Director’s request) (i) a list of recipients of the public notice; (ii) a log of any correspondence to or from the recipients of the notice prior to the City’s final decision on the application; and (iii) a list of recipients of the public notice who have requested to receive notice of the Director’s decision. The applicant shall copy the appropriate Public Works staff on all email correspondence with members of the public. j. Public Access to Application Information. The Director shall ensure that information regarding the location and status of all wireless ROW permit applications is available on the City of Cupertino website. k. Regulatory Authorization; Shot Clock Requirements. The applicant shall submit evidence of the applicant’s regulatory status under federal and California law to provide the services and construct the wireless facility proposed in the application.

The application must state whether the applicant believes state or federal law requires action on the application within a specified time period. l. Property Owner’s Authorization. The applicant shall identify the support structure for the wireless facility (including any identification number) and include written authorization from the support structure owner(s).

CC 12-06-2022
133 of 759
6 Attachment B
m. Acoustic Analysis. The applicant shall submit an acoustic analysis prepared and certified by a California licensed engineer for the proposed wireless facility and all associated equipment including all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators demonstrating compliance with the applicable provisions of Chapter 10.48. The acoustic analysis must include an analysis of the manufacturers’ specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. Where no generator, mechanical fan, or other noiseemitting equipment is proposed for installation, the applicant may submit, in lieu of an acoustic analysis, evidence from the equipment manufacturer(s) that demonstrates the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed applicable noise standards. n. Structural Analysis. The applicant shall submit a report prepared and certified by a California-licensed structural engineer (or other qualified personnel acceptable to the City) that certifies (1) the underlying pole or support structure has the structural integrity and/or capacity to support all the proposed equipment and attachments; (2) the foundation has the capacity to support additional loading and to accommodate any modifications to the pole base and bolt pattern; and (3) any drilling or cutting will preserve the structural integrity of the pole. Where an applicant proposes to replace the pole and foundation, the applicant shall submit structural drawings and calculations prepared and certified by a California-license structural engineer.
o. Community Meeting. The City strongly encourages, but does not require, applicants to schedule, notice, arrange, and attend a pre-submittal community meeting with all interested members of the public. This voluntary, pre-submittal public meeting does not cause the FCC Shot Clock to begin running and is intended to give applicants the opportunity to hear from members of the public regarding proposed deployment. Applicants should bring any draft applications, plans, maps, presentations, or other materials to facilitate the public’s understanding of the applicant’s proposal. The City seeks to encourage dialogue that may allow applicants to address and resolve areas of concern prior to the submittal of an application.
p. Pole Availability Requests. Before submitting an application, applicants seeking a permit to install a wireless facility on a City light pole are encouraged but not required to submit a pole availability request and reservation to the Department of Public Works, to determine whether the light pole is available for the proposed facility. The applicant shall explain why the proposed location meets the CC 12-06-2022
134 of 759
7 Attachment B
requirements of Section 7 of these Regulations. Each pole availability request shall include the following information:

1. A map showing the location of the streetlight pole that is the subject of the request. This map should be in the form of a Google KMZ file or other file type that clearly shows the streetlight being indicated.

2. Information on the equipment and layout being proposed (e.g., all equipment within the shroud, equipment on the pole screened by signs, base enclosure, underground vault, or equipment on the pole situated to minimize views of equipment).

The approval of a pole availability request does not constitute approval of a wireless ROW permit and does not relieve the applicant of complying with all requirements of Chapter 14.30 and these Regulations.
q. Peer and Independent Consultant Review. The Director may in their discretion select and retain independent consultant(s) with expertise and appropriate credentials in telecommunications, RF testing/compliance, electrical or fire safety, and/or other professional consultation services as deemed appropriate in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including but not limited to application completeness or accuracy, engineering analysis, or compliance with FCC radio frequency emissions limits. The Director may require that the independent consultant prepare written reports, testify at public meetings, hearings and/or appeals, and attend meetings with City staff and/or the applicant.

Subject to applicable law, in the event that the Director elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the reasonable costs in connection with the services provided, which may include without limitation any costs incurred by the independent consultant to attend and participate in any meetings or hearings.

Before the independent consultant may perform any services, the applicant shall tender to the City a deposit in an amount equal to the estimated cost for the consultant’s services to be provided, as determined by the Director. The Director may request additional deposits as reasonably necessary to ensure sufficient funds are available to cover the reasonable costs in connection with the independent consultant’s services. In the event that the deposit exceeds the total costs for consultant’s services, the Director shall promptly return any unused funds to the applicant after the wireless facility has been installed and passes a final inspection by the Director. In the event that the reasonable costs for the independent consultant’s services exceed the deposit, the Director shall invoice the applicant CC 12-06-2022
135 of 759
8 Attachment B
for the balance. The City shall not issue any wireless ROW permit to any applicant with any unpaid deposit requests or invoices.
r. Incomplete Applications Deemed Withdrawn. An application shall be automatically deemed withdrawn by the applicant when the applicant fails to submit a substantive response to the Director within 60 calendar days after the Director deems the application incomplete by written notice. A “substantive response” must include, at a minimum, all the materials identified as incomplete in the written incomplete notice, unless the Director explicitly waives any materials.

SECTION 5. DECISIONS
a. Decision of the Director. The Director shall approve, deny (with or without prejudice), or conditionally approve an application for a wireless ROW permit within a sufficient time to allow for an appeal to the City Manager pursuant to Municipal Code Section 14.30.070.
b. Findings for Approval. Except for eligible facilities requests, any approval or conditional approval of an application for a wireless ROW permit shall include a written determination based on the findings set forth in Municipal Code Section

14.30.060(B). The findings shall include a determination that the proposed facility meets the requirements in these Regulations, including the following:

1. The proposed facility is either located in the “most preferred” location for a wireless facility (Section 7(a)) or that the requirements of Section 7(b) are satisfied.

2. The proposed facility complies with all applicable design standards (Section 8).

3. The applicant has demonstrated that the proposed facility will be in compliance with all applicable FCC regulations and guidelines for human exposure to RF emissions.
c. Eligible Facilities Requests. Notwithstanding Section 5(b), the Director shall approve an eligible facilities request if the application meets the requirements set forth in 47 C.F.R. § 1.6100 and complies with all applicable state and federal laws and regulations, including without limitation applicable regulations for human exposure to RF emissions and all applicable building standards. The conditions of any permit previously issued for the eligible facility shall apply to the maximum extent permitted by federal and state law and regulations.

CC 12-06-2022
136 of 759
9 Attachment B
d. Notice of Decision. Within five calendar days of the Director’s action on a wireless ROW permit application, the Director shall provide written notice to the applicant stating the reasons for approval, conditional approval, or denial of the permit application.

SECTION 6. CONDITIONS OF APPROVAL
a. Standard Conditions. All wireless ROW permits shall be subject to the following standard conditions of approval:

1. Permit Term. Each wireless ROW permit shall have a term of 10 years and shall automatically expire 10 years and one day from its issuance, unless a different term is set pursuant to a license agreement approved by the City Council. Any other permit or approval issued in connection with any collocation, modification, or other change to a permitted wireless facility, including without limitation any permits or other approvals deemedgranted or deemed-approved under state or federal law, shall not extend the term of the permit unless expressly provided otherwise in such permit or approval or required under state or federal law. Nothing in this subparagraph shall extend or abridge the rights of permittee under any license agreement with the City or any other public agency or any private utility.

2. Permit Renewal. Not more than one year before a wireless ROW permit expires, the permittee may apply for renewal of the permit. The permittee must demonstrate that the wireless facility complies with all conditions of approval of the permit and all applicable provisions in Municipal Code and Regulations that exist at the time the renewal decision is rendered. The Director may modify or amend the conditions on as may be necessary or appropriate to ensure compliance with the Municipal Code, these Regulations, or other applicable law. Upon renewal, the permit will automatically expire 10 years and one day from the date of renewal unless expressly issued for a shorter duration. Nothing in this subparagraph shall extend or abridge the rights of permittee under any license agreement with the City or any other public agency or any private utility. The provisions of this subparagraph may be waived or modified by a license agreement approved by the City Council.

3. Build-Out Period. A wireless ROW permit will automatically expire six months from the approval date (the “build-out period”) unless the permittee (i) obtains all other permits and approvals required to install, construct, and/or operate the approved wireless facility, including without CC 12-06-2022
137 of 759
10 Attachment B
limitation any permit or approval required by any federal, state, or local public agency with jurisdiction over the subject property, the support structure, or the wireless facility, and (ii) begins construction of the permitted facility within six months of the approval date. The permittee may request in writing, and the City may grant in writing, one six-month extension if the permittee submits substantial and reliable written evidence demonstrating justifiable cause for the extension. If the build-out period and/or any extension period expires, the permit shall be automatically void, but the permittee may resubmit a complete application, including all application fees, for the same or a substantially similar facility.

4. Post-Installation Certification. Within 30 calendar days after the permittee receives the final inspection or completes the construction and/or installation of a wireless facility, the permittee shall provide the Director with documentation that the facility has been installed and/or constructed in compliance with the approved construction drawings and photo simulations. Such documentation shall include without limitation as-built drawings, GIS data, and site photographs. Post-installation certification shall include compliance with any provisions of a license agreement between the permittee and the City relating to the measurement of RF emissions from a wireless facility.

5. Site Maintenance. The permittee shall comply with the provisions of the most current editions of the City’s Building Code, Plumbing Code, and Electrical Code; any applicable construction standards adopted by the Department of Public Works; the facility’s specifications and plans; and any applicable federal, state, or local statutes, ordinances, regulations, guidelines, or requirements. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences, and landscape features, in a neat, clean, and safe condition in accordance with the approved construction drawings and all conditions in the wireless ROW permit. The permittee shall keep the site area free from litter and debris at all times. The facility shall be manufactured or treated to resist graffiti. The permittee, at no cost to the City, shall monitor and abate any graffiti or other vandalism at the site. The permittee shall make reasonable commercial efforts to remove graffiti within 72 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

6. Compliance with Laws. The permittee shall at all times comply with all federal, state, and local statutes, regulations, orders, or other rules that carry CC 12-06-2022
138 of 759
11 Attachment B
the force of law applicable to the permittee, the subject property, the wireless facility, and any use or activities in connection with the use authorized in the wireless ROW permit (collectively, “laws”). The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve, or otherwise lessen the permittee’s obligation to maintain compliance with all laws. No failure or omission by the City to timely enforce compliance with any applicable provision in the Municipal Code, these Regulations, any permit condition, or any applicable law or regulation shall be deemed to relieve, waive, or lessen the permittee’s obligation to comply in all respects with all applicable provisions in the Municipal Code, these Regulations, any permit condition, or any applicable law orregulation.

7. Construction Activities. Construction shall be coordinated with other utility companies or applicants installing infrastructure in the right-of-way and shall be scheduled and conducted so as to minimize interference with public use of the right-of-way, including access to the right-of-way from private property. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue, or unnecessary adverse impacts on nearby properties that may arise from the construction, installation, operation, modification, maintenance, repair, removal, and/or other activities on or about the site of the facility, including the public’s use of the right-of-way and the public’s access to the right-of-way from private property. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal, or other work that involves heavy equipment or machines except during normal construction work hours authorized by the Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons or any work arising from an emergency declared by the City or other state or federal government agency or official with authority to declare an emergency within the City.

The Director may issue a stop work order for any activity that violates this condition in whole or in part. The permittee agrees to fully cooperate with the City in assisting the City to achieve its accommodation obligations under the Americans with Disabilities Act, the Fair Housing Act Amendments of 1988, and other applicable laws.

8. Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City’s officers, officials, staff, agents, contractors, or other designees may enter onto the site and inspect the improvements and CC 12-06-2022
139 of 759
12 Attachment B
equipment upon reasonable prior notice to the permittee. Notwithstanding the prior sentence, the City’s officers, officials, staff, agents, contractors, or other designees may (i) at any time inspect the facility visually or with any remote sensing equipment and (ii) may, but will not be obligated to, enter the facility without prior notice to support, repair, disable, or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee, if present, may observe the City’s officers, officials, staff, or other designees while any such inspection or emergency access occurs.

9. Permittee’s and Contractor’s Contact Information. Within 10 days from the final approval, the permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person’s full name, title, direct telephone number, mailing address, and email address. The permittee shall keep such contact information up-to-date at all times and shall promptly provide the City with updated contact information if either the responsible person or such person’s contact information changes. In addition, before the City issues any permit required to commence construction, the permittee shall furnish the City with accurate and up-todate contact information for the contractor responsible for the construction of the facility, including without limitation such person’s full name, title, direct telephone number, mailing address, and email address.

10. Performance Bond. Before the City issues any permit required to commence construction in connection with the permit, the permittee shall post a performance bond from a surety and in a form acceptable to the Director in an amount reasonably necessary to cover the cost to remove, store, and/or dispose of the improvements and restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facility removal. The written estimate must include the cost to remove, reasonably store, and/or dispose of all equipment and other improvements, including without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings, and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, the Director shall take into consideration any information provided by the permittee regarding the cost to remove, reasonably store, CC 12-06-2022
140 of 759
13 Attachment B
and/or dispose of the wireless facility to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.

11. Landscaping. All landscaping shall comply with the requirements of Section 8(e) of the Regulations. The permittee shall replace any landscape features damaged or displaced by the construction, installation, operation, maintenance, or other work performed by the permittee or at the permittee’s direction on or about the facility.

12. Trenching and Excavation. Any excavation and/or trenching activities shall not disturb the root systems of trees measuring 24 inches or more in diameter. Protective fencing, consistent with City Standard Details, should be installed around street trees within or adjacent to the work area to prevent damage to branches, trunks, or root systems. If any cultural resources are discovered during excavation, trenching, or other construction activities, work shall be stopped immediately, and the Director of Community Development shall be notified. Directional boring should be used instead of trenching whenever possible to minimize interference with vehicular traffic and may be required by the City when working in streets that have been recently resurfaced or resealed. When trenching is necessary, all trenches shall be covered at the end of each workday, in compliance with City standards and policies regarding trench plates. The total time that a trench may remain open in any segment of the road system should not exceed one week unless a longer time period is expressly authorized by the Director.

13. Construction Hours and Noise Control. Noise-producing site preparation and construction activities shall comply with Municipal Code Section 10.48 and any additional conditions of approval. All trucks and equipment shall use the best available noise control techniques and equipment including improved mufflers, intake silencers, ducts, engine enclosures, and noisereducing shields or shrouds. Impact tools such as jackhammers, pavement breakers, and noise drills shall be hydraulically or electrically powered wherever feasible to avoid noise associated with compressed air exhaust from pneumatically powered tools. When the use of pneumatic tools is unavoidable, an exhaust muffler shall be used on the compressed air exhaust to lower noise levels. External jackets shall be used on tools where feasible to achieve noise reductions. To the extent feasible, quieter procedures, such as drilling instead of jack hammering, shall be used.

CC 12-06-2022
141 of 759
14 Attachment B
Stationary noise sources shall be located away from sensitive receptors to the extent feasible. If location within 20 feet of homes, schools, neighborhood parks, or retail businesses is necessary, stationery noise sources shall be muffled and enclosed with temporary sheds, unless permitted otherwise by the Director of Public Works. Trucks and other vehicles should not be permitted to idle when waiting at or near the construction site.

14. Dust and Stormwater Control. Construction sites shall be watered at least twice daily if necessary to control dust caused by site preparation and construction activities. Watering intervals shall be increased whenever wind speeds exceed 15 miles per hour, or as necessary to control dust.

Where feasible, reclaimed water shall be used for this purpose. All trucks hauling soil, sand, paving materials, and other loose materials shall be covered or required to maintain at least two feet of space between the top of the load and the top of the trailer. Streets shall be swept at the end of each workday if soil, sand, or other material has been carried onto adjacent paved streets or sidewalks. When feasible, streets shall be swept using reclaimed water. Best Management Practices shall be used to prevent oil, dirt, or other materials from construction equipment or activity from washing into the City storm drainage system. Water discharge resulting from both construction and underground facility drainage shall comply with National Pollutant Discharge Elimination System (NPDES) regulations.

15. Cost Reimbursement. The permittee acknowledges and agrees that (i) the permittee’s request for authorization to construct, install, and/or operate the wireless facility will cause the City to incur costs and expenses; (ii) the permittee shall be responsible to reimburse the City for all costs incurred in connection with the permit, including without limitation costs related to application review, permit issuance, site inspection, and any other costs reasonably related to or caused by the request for authorization to construct, install, and/or operate the wireless facility; (iii) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the City for all such costs 10 days after receipt of a written demand for reimbursement and reasonable documentation to support such costs; and (iv) the City shall have the right to withhold any permits or other approvals in connection with the wireless facility until and unless any outstanding costs have been reimbursed to the City by the permittee.

CC 12-06-2022
142 of 759
15 Attachment B

16. Rearrangement and Relocation. The permittee acknowledges that the City, in its sole discretion and at any time, may (i) change any street grade, width or location; (ii) add, remove, or otherwise change any improvements in, on, under, or along any street owned by the City or any other public agency, including without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles, and utility systems for gas, water, electric, or telecommunications; and/or (iii) perform any other work deemed necessary, useful, or desirable by the City (collectively, “City work”). The City reserves the rights to do any and all City work without any admission on its part that the City would not have such rights without the express reservation in the wireless ROW permit. If the Director determines that any City work will require the wireless facility to be rearranged, relocated, or removed, the permittee shall at its sole cost and expense do or cause to be done all things necessary to accomplish such rearrangement, relocation, or removal, within 60 days. If the permittee fails or refuses to either permanently or temporarily rearrange, relocate, or remove the wireless facility within 60 days after receiving notice from the Director, the City may (but will not be obligated to) cause the rearrangement, relocation, or removal to be performed at the permittee’s sole cost and expense. The City may exercise its rights to rearrange, relocate, or remove the permittee’s wireless facility without prior notice to permittee when the Director determines that City work is immediately necessary to protect public health, safety or convenience. The permittee shall reimburse the City for all costs and expenses in connection with such work within 10 days after receiving a written demand for reimbursement and reasonable documentation to support such costs and expenses.

17. Future Undergrounding Programs. The permittee acknowledges that if other utilities or communications providers in the right-of-way underground their facilities in the segment of the right-of-way where the wireless facility is located, the permittee shall also be required to underground its equipment, except its antennas and any approved electric meter, at approximately the same time. Accessory equipment such as radios and computers that require an environmentally controlled underground vault to function shall not be exempt from this condition. Such undergrounding shall occur at the permittee’s sole cost and expense except as may be reimbursed through tariffs approved by the CPUC for undergrounding costs.

18. Electric Meters. The permittee shall comply with all electric utility requirements for electric meters and enclosures, including making any CC 12-06-2022
143 of 759
16 Attachment B
necessary upgrades and/or modifications to electrical facilities at the permittee’s expense. The permittee shall obtain all required permits for the upgrade or modification of electric meters, enclosures, wiring, and/or other equipment and shall restore any affected areas to its original condition that existed prior to installation of the equipment. The permittee shall work to ensure all electric meters are screened from public view or shall provide written evidence demonstrating why screening of an electric meter is infeasible. The Director may in their discretion require modifications to the application materials to better disguise the meter or otherwise hide it from view.

19. Insurance. The permittee shall secure and maintain commercial general liability insurance, including bodily injury and property damage, with limits of $2,000,000 per occurrence and $4,000,000 in the aggregate, or as otherwise established by agreement, and shall have coverage at least as broad as the Insurance Service Office (ISO) Form No. CG 0001 or its successor; provided, however, that the Director may consider proof of adequate insurance sufficient to satisfy the requirements of any license agreement between permittee and the City as proof of compliance with this condition. The City, the City Council, and the City’s boards, commissions, officers, and employees shall be included as an additional insureds under the permittee’s policy.

20. Indemnification. The permittee shall indemnify, defend, protect, and hold harmless the City, the City Council, and the City’s commission members, officers, and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings, orders, judgments, all costs and expenses (collectively, “claims”) incurred in connection with activities authorized under the wireless ROW permit or in connection with the construction, operation, or maintenance of the wireless facility, except to the extent that any such claim arises solely from the negligence or willful misconduct of the City, the City Council, or the City’s commission members, officers, and employees. In the event the City becomes aware of any claims, the City will use best efforts to promptly notify the permittee and the private property owner (if applicable) and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City’s defense, and the property owner and/or permittee (as applicable) shall promptly reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of CC 12-06-2022
144 of 759
17 Attachment B
the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the City to approve this wireless ROW permit and that such indemnification obligations will survive the expiration, revocation, or other termination of the wireless ROW permit.

21. Truthful and Accurate Statements. The permittee acknowledges that the City’s approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee’s behalf. In any matter before the City in connection with the wireless ROW permit or the infrastructure approved under the permit, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, recklessly or intentionally provide material factual information that is incorrect or misleading or intentionally or recklessly omit any material information necessary to prevent any material factual statement from being incorrect or misleading. Failure to comply with this paragraph may result in permit revocation and other enforcement action under these Regulations or the Municipal Code.

22. Permit Revocation. Wireless ROW permits may be subject to revocation under Municipal Code Section 14.30.080(A). The Director may initiate revocation proceedings when the Director determines that a wireless facility is not in compliance with any applicable law, including without limitation the conditions of any permit issued in connection with the construction, operation, or maintenance of the facility. The Director shall provide the permittee with written notice identifying (i) the facility; (ii) the violation(s) to be corrected; and (iii) the timeframe in which the permittee must correct such violation(s), and shall notify the permittee that, in addition to all other rights and remedies the City may pursue, the City may initiate revocation proceedings for failure to correct such violation(s). The Director may revoke a permit if said violation(s) are not corrected within 30 days of the date of the notice, or within the timeframe to correct such violation(s) stated in the notice, whichever is longer. The permittee may appeal the decision of the Director to the City Manager within 10 days of service of the decision via first class mail. If a timely and complete request for hearing is submitted, the City Manager shall conduct an administrative hearing within 30 days of receipt of the appeal. The City Manager may decide the issues presented de novo. The City Manager’s decision following the hearing shall be in writing, shall explain the basis for the decision, and shall be served upon the permittee by first class mail, to the address stated CC 12-06-2022
145 of 759
18 Attachment B
on the request for hearing form. The written decision of the City Manager shall be the final decision of the City effective on the date of mailing.

23. Record Retention. The permittee shall retain all records related to the construction, operation, and maintenance of the wireless facility throughout the permit term, including without limitation the wireless ROW permit application, the wireless ROW permit, the approved plans and photo simulations, any RF calculations and RF testing reports, and any other permits, approvals, memoranda, documents, papers, and other correspondence entered into the public record in connection with the wireless ROW permit or wireless facility (collectively, “records”). If the permittee does not maintain such records as required by this condition, any ambiguities or uncertainties that would be resolved by inspecting the missing records will be construed against the permittee. The requirements in this condition shall not be construed to create any obligation to create or prepare any records not otherwise required to be created or prepared by these Regulations or other applicable laws or regulations. Compliance with the requirements in this condition shall not excuse the permittee from any other similar record-retention obligations under other applicable laws or regulations.

24. Lessee/Operator Bound. Any lessee of the permittee and/or any operator of an antenna or other equipment installed at the facility shall be bound by all appliable conditions of the wireless ROW permit.

25. Successors and Assigns. The conditions, covenants, promises, and terms contained in the wireless ROW permit shall bind and inure to the benefit of the City and permittee and their respective successors and assigns. Prior to any voluntary assignment or assumption of rights or obligations under the permit, the permittee shall notify the City in writing of the assignment or assumption and shall provide all contact information required pursuant to these Regulations.
b. Right to Modify Permit. The City expressly reserves the right to review and modify the conditions of the wireless permit in the event of any change in law that expands the City’s authority with respect to the placement, design, or operation of the wireless facility. In the event of any such change in law, the Director may review and revoke or modify the wireless permit based on subsequent amendments to Municipal Code Chapter 14.30 or regulations adopted pursuant to Municipal Code Section 14.30.040. The permittee shall be entitled to notice and an opportunity to be heard prior to the revocation or modification of any permit. Any CC 12-06-2022
146 of 759
19 Attachment B
permit revocation shall comply with the requirements of Section 6(a)(22) of these Regulations.
c. Special Conditions. The Director may modify, add, or remove conditions to any wireless ROW permit as they deem necessary or appropriate to (1) protect and/or promote the public health, safety, and welfare; (2) tailor the standard conditions in paragraph (a) of this Section to the particular facts and circumstances associated with the deployment of a wireless facility; and/or (3) ensure that the proposed deployment complies with the Municipal Code, the Regulations, generally applicable health and safety requirements, and/or any other applicable laws or regulations. As required by applicable FCC regulations, the Director shall ensure that any different conditions applied to wireless facilities are no more burdensome than those applied to other similarly situated infrastructure deployments.

SECTION 7. LOCATION STANDARDS
a. Location Preferences. The preferred locations for wireless facilities installed in public rights-of-way,ordered from most preferred to least preferred, are set forth as follows:

1. Locations within mixed use or non-residential districts.

2. Locations within residential districts on or along arterial or main streets.

3. Locations within residential districts on or along major or minor collector streets.

4. Other locations within residential districts.

5. Any location within 100 feet of a school, or a property that is eligible for protection under the State Public Resources Code Section 5020.1(j).

6. Installations on wooden utility poles.

7. Any location where strand-mounted equipment of any kind is proposed.

If more than one location qualifies as the most preferred location under subparagraphs (2)-(6), the most preferred location shall be the location that is furthest from any occupied residential unit. Except as provided in Section 7(b), no wireless facility may be installed at a location within 750 feet of an existing or proposed wireless facility serving the same carrier and/or network. b. Findings for Installation in a Less-Preferred Location. A wireless facility shall be installed at the most-preferred location within 500 feet of the proposed facility and shall be located at least 750 feet from any existing or proposed wireless facility serving the same carrier and/or network unless (1) the applicant demonstrates that CC 12-06-2022
147 of 759
20 Attachment B
installation of the facility at a less preferred location is required by applicable state or federal law, or (2) the Director determines based on clear and convincing evidence that installation of the facility at a less-preferred location is necessary to protect public health, safety, or welfare, based on specific characteristics of the location of the proposed facility. At the request of the Director, the applicant shall provide signal strength analyses, coverage maps, and/or an analysis of preferred site locations in support of any request to install a wireless facility at a lesspreferred location under this subparagraph. c. Prohibited Support Structures. Wireless facilities shall not be permitted on the following support structures:

1. Decorative poles (including historic or ornamental streetlight poles).

2. Traffic signal poles, mast arms, cabinets, or related devices or structures.

3. New, non-replacement wood poles, or any utility pole scheduled for removal or relocation within 24 months from the time the Director acts on the wireless ROW permit application.
d. Encroachments Onto or Over Private Property. No antennas, accessory equipment, or other improvements may encroach onto or over any private or other property outside the public right-of-way without the property owner’s written consent.
e. No Interference with Other Uses. Wireless facilities and any associated antennas, accessory equipment, orimprovements shall not be located in any place or manner that would physically interfere with or impede any of the following:

1. The view of any traffic sign, streetlight, or other traffic control device or any other view lines necessary for the safety of vehicles, bicycles, or pedestrians.

2. Worker access to any above ground or underground infrastructure for traffic control, streetlights, or public transportation, including without limitation any curb control sign, vehicular traffic sign or signal, pedestrian traffic sign or signal, or barricade reflector.

3. Access to any public transportation vehicles, shelters, street furniture, or other improvements at any public transportation stop.

4. Worker access to above ground or underground infrastructure owned or operated by any public or private utility agency

5. Access to any fire hydrant, water valve, or water main.

CC 12-06-2022
148 of 759
21 Attachment B

6. Access to any doors, gates, passage doors, stoops, or other ingress and egress points to any building appurtenant tothe right-of-way.

7. Access to wastewater stations.

8. Access to any fire escape or other ingress or egress for fire safety purposes.

9. Any other similar service or facility that benefits the City or the health, safety, or welfare of its residents.
f. Additional Placement Requirements. In addition to the other requirements of this Section 7, the Director shall consider the following criteria in determining the placement of a wireless facility.

1. The facility should be placed on existing structures where feasible.

2. The facility should be placed as close as possible to the property corners or the property line between two parcels that abut the public right-of-way.

3. The facility should not be placed in front of the primary entrance to a residence or retail business or at any other location where it would unduly interfere with the operation of a business, including blocking views of the entrance or display windows.

4. The facility should not be placed within any sight distance triangles at any intersections, streetcorners, driveways, and/or other points of ingress or egress, unless the facility fully complies with site distance standards.

5. The facility should not be placed in any location that obstructs illumination patterns for existing streetlights.
g. Replacement Poles. All replacement poles shall be (1) located in the same position, or as close to the removed pole as possible; (2) aligned with the other existing poles along the public rights-of-way; and (3) substantially similar in height and width to the existing pole and compliant with all applicable standards and specifications promulgated by the Director.

SECTION 8. DESIGN STANDARDS
a. Compliance with Health and Safety Regulations. All wireless facilities shall be designed, constructed, operated, and maintained in compliance with all generally applicable health and safety regulations, including without limitation all applicable regulations for human exposure to RF emissions. b. Finishes. All exterior surfaces shall be painted, colored, and/or wrapped in flat, non-reflective hues that match the underlying support structure or blend withthe CC 12-06-2022
149 of 759
22 Attachment B
primary background. All surfaces shall be treated with graffiti-resistant sealant.

All finishes shall be subject to the Director’s prior approval. c. Noise. Wireless facilities shall comply with all applicable noise control standards and regulations in the Municipal Code Chapter 10.48 and shall not exceed, either on an individual or cumulative basis, the noise limit in the applicable district.

Backup generators shall be operated during periods of power outages or for testing only and shall not be tested on weekends, holidays, or between the hours of 5:00 p.m. and 9:00 a.m.
d. Lights. All lights and light fixtures must be aimed and shielded so that their illumination effects are directed downwards and confined within the public rightof-way in a manner consistent with all standards and specifications promulgated by the Director. All antennas, accessory equipment, and other improvements with indicator or status lights must be installed in locations and within enclosures that mitigate illumination impacts visible from publicly accessible areas. e. Trees and Landscaping. Wireless facilities may not remove or displace any existing tree or landscape features without the prior approval of the Director. Each removed or displaced tree or landscaping feature must be replaced by trees or landscape features approved by the Director and consistent with Department of Community Development landscaping requirements or Department of Public Works requirements, whichever is applicable. Any replacement tree must be substantially the same size as the removed or a displaced tree unless approved by the Director. The permittee shall at all times be responsible to maintain any replacement landscape features.
f. Signs and Advertisements. All wireless facilities that involve RF transmitters must include signage that, consistent with applicable state and federal regulatory requirements, accurately identifies the facility owner/operator, the owner/operator’s site name or identification number, and a toll-free number to the owner/operator’s network operations center. Wireless facilities may not bear any other signage, logos, or advertisements unless expressly approved by the City, required by law, or recommended under FCC or other United States governmental agencies for compliance with RF emissions regulations. Signage shall be no larger than 6-inches by 6-inches unless required to be larger by law. g. Site Security Measures. Wireless facilities may incorporate reasonable and appropriate site security measures, such as locks and anti-climbing devices, to prevent unauthorized access, theft, or vandalism. The Director shall not approve any barbed wire, razor ribbon, electrified fences, or any similarly dangerous security measures.

CC 12-06-2022
150 of 759
23 Attachment B
h. Shrouding. All antennas and associated cables, jumpers, wires, mounts, masts, brackets, and other connectors and hardware shall be installed within a shroud or radome unless shrouding is not feasible. For pole-top antennas, the shroud must match published City standards for size. The antenna shall be finished in a flat, non-reflective color to match the underlying support structure. i. Antenna Volume. If shrouding pursuant to Paragraph (h) of this Section is not feasible, each individual antenna associated with a wireless facility shall not exceed three cubic feet in volume. The cumulative volume for all unshrouded antennas at a wireless facility shall not exceed (1) three cubic feet in residential districts or (2) six cubic feet in nonresidential districts. j. Overall Height. No antenna may extend more than five and one-half feet above the support structure, plus any minimum separation between the antenna and other pole attachments required by applicable health and safetyregulations. k. Horizontal Projection. Horizontal projections are prohibited except where other designs are not feasible. Side-mounted antennas, where permitted, shall not project (1) more than 24 inches from the support structure unless a greater distance is required to comply with legal requirements imposed by the CPUC; (2) over any roadway used for vehicular travel; or (3) over any abutting private property without written authorization of the property owner.
l. Accessory Equipment Volume. The cumulative volume for all accessory equipment at a single wireless facility shall not exceed (1) nine cubic feet in residential districts or (2) 12 cubic feet in nonresidential districts. The volume limits in this subsection do not apply to any undergrounded accessory equipment. m. Undergrounded Accessory Equipment.

1. Where Required. Accessory equipment (other than any electric meter or emergency disconnect switch when required by the electrical provider) shall be placed underground when proposed in any (i) underground district or (ii) any location where the Director finds based on substantial evidence that additional above ground accessory equipment would incommode the public’s use of the public right-of-way.

2. Vaults. All undergrounded accessory equipment must be installed in an environmentally controlled vault that is load-rated to meet applicable standards and specifications. Underground vaults located beneath a sidewalk must be constructed with a slip-resistant cover. Vents for airflow shall be flush-to-grade when placed within the sidewalk. All vault lids shall CC 12-06-2022
151 of 759
24 Attachment B
be constructed from materials rated for heavy traffic and acceptable to the Director. Only non-toxic sealants may be used.
n. Pole-Mounted Accessory Equipment.

1. Preferred Concealment Techniques. Applicants shall place pole-mounted accessory equipment in the least conspicuous position on the proposed pole and at the proposed location. All above ground wires and cables shall be installed within the interior of the pole or radome unless it is not feasible to do so. If pole-mounted accessory equipment must be installed on the exterior of the pole, the equipment shall be concealed behind street, traffic, or other existing signs to the extent that such installation complies with applicable public health and safety regulations.

2. Orientation. Unless placed behind a street sign or some other concealment that dictates the equipment orientation on the pole, pole-mounted accessory equipment should be oriented away from prominent views and shall not substantially obstruct a view from the primary living area of a residence (e.g., oriented toward the street).

3. Horizontal Projection. Pole-mounted accessory equipment shall not project (i) more than 24 inches from the pole surface unless a greater distance is required to comply with legal requirements imposed by the CPUC; (ii) over any roadway used for vehicular travel; or (iii) over any abutting private property without the written consent of the property owner. All polemounted accessory equipment shall be mounted flush to the pole surface.

If applicable state or federal laws or regulations preclude flush-mounted equipment, the separation gap between the pole and the accessory equipment shall be no greater than required to comply with such laws or regulations and shall be concealed to the Director’s satisfaction.

4. Minimum Vertical Clearance. The lowest point on any pole-mounted accessory equipment shall be at least eight feet above ground level adjacent to the pole unless applicable state or federal law or regulations impose a different requirement. If applicable laws or regulations require any polemounted accessory equipment component to be placed less than eight feet above ground level, the clearance from ground level shall be no less than required to comply with such laws or regulations.
o. Ground-Mounted or Base-Mounted Accessory Equipment

1. Placement of Ground-Mounted Equipment. Ground-mounted equipment is prohibited unless approved by the Director. Any approved groundCC 12-06-2022 152 of 759
25 Attachment B
mounted equipment cabinets shall be placed six inches behind the sidewalk, at least two feet from the curb, and two feet from driveway and curb edges. Pedestals must be at least three feet from fire hydrants.

Installations must leave a minimum horizontal clear space for the path of travel of at least six feet, unless otherwise approved by the Director. The Director may require more clear space for travel in heavily used commercial areas to provide sufficient room for pedestrian traffic. On arterial streets outside underground districts, proposed ground-mounted accessory equipment should be completely shrouded or placed in a cabinet substantially similar in appearance to existing ground-mounted accessory equipment cabinets. On non-arterial streets, the preferred means of concealment of ground-mounted facilities are as follows:
(i) Within a landscaped parkway, median or similar location, behind or among new or existing landscape features and painted or wrapped in flat, natural colors to blend with landscape features. (ii) If landscaping concealment is not feasible, disguised as other street furniture adjacent to the support structure, such as, for example, mailboxes, benches, trash cans, or information kiosks.

2. Dimensions of Ground-Mounted Equipment; Public Safety Requirements. No ground-mounted accessory equipment cabinet may exceed three feet in height, four feet in width, and two feet in depth, unless otherwise approved by the Director. No unit higher than three feet shall be placed in any location that would interfere with vehicular sight lines at street corners, driveways, and other points of ingress or egress or where they obstruct the view of any traffic devices or signs.

3. Fire Protection. The exterior walls and roof covering of all ground-mounted accessory equipment cabinets and equipment shelters shall be constructed of materials rated as nonflammable under the Uniform Building Code.

Openings in all above ground equipment shelters and cabinets shall be protected against penetration by fire and windblown embers to the extent feasible.
p. Strand-Mounted Wireless Facilities. Strand-mounted wireless facilities are prohibited unless approved by the Director. Where permitted, no more than one strand-mounted wireless facility may be installed (1) on any single span between two poles or (2) directly adjacent to any single pole. The Director shall not approve any ground-mounted equipment in connection with a strand-mounted wireless facility unless the ground-mounted equipment consists of a remote power source CC 12-06-2022
153 of 759
26 Attachment B
used to power multiple strand-mounted wireless facilities. Strand-mounted wireless facilities shall not exceed one cubic foot in total volume. All equipment and other improvements associated with a strand-mounted wireless facility must comply with all applicable health and safety regulations. Any accessory equipment mounted on the pole shall be finished to match the underlying pole. “Snowshoes” and other spooled fiber or cables are prohibited, unless approved by the Director.
q. Utilities Serving Wireless Facilities.

1. Overhead Lines. The Director shall not approve any new overhead utility lines in underground districts. In areas with existing overhead lines, new communication lines shall be “overlashed” with existing communication lines to the maximum extent feasible. No new overhead utility lines shall be permitted to traverse any roadway used for vehicular transit. Existing overhead lines that serve a City streetlight pole proposed to support a wireless facility shall be placed underground with the installation of the facility.

2. Vertical Cable Risers. All cables, wires, and other connectors must be routed through conduits within the pole or other support structure, and all conduit attachments, cables, wires, and other connectors must be concealed from public view. To the extent that cables, wires, or other connectors cannot be routed through the pole, the applicant shall route them through a single external conduit or shroud that has been finished to match the underlying pole.

3. Spools and Coils. Excess fiber or cable shall not be spooled, coiled, or otherwise stored on the pole outside equipment cabinets, vaults, or shrouds. Fiber or cable placement on existing poles shall have aminimum safety slack for sway and wind. Looped fiber storage for future use is prohibited.

4. Electric Meters. Wireless facilities shall use flat-rate electric service or other method that obviates the need for a separate above-grade electric meter. If flat-rate service is not available, applicants may install a shrouded smart meter. If a ground-mounted equipment cabinet is authorized by the Director, an electric meter may be integrated with and recessed into the cabinet. Separate ground-mounted electric meter pedestals are prohibited. r. Existing Conduit or Circuits. The Director may condition the issuance of a wireless ROW permit to require the use of existing vaults, utility holes, conduits, ducts, manholes, electric circuits, and/or other similar facilities whenever CC 12-06-2022
154 of 759
27 Attachment B
available. Access to any conduit and/or circuits owned by the City shall be subject to the Director’s prior written approval, which the Director may withhold or condition as the Director deems necessary or appropriate to protect the City’s infrastructure, to prevent interference with the City’s municipal functions, and to protect public health and safety.
s. Alternative Design Standards. An applicant may propose alternative design standards, which may be considered by the Director on a case-by-case basis. The Director may approve an alternative design standard only if (1) the applicant demonstrates that strict application of the design standards in this Section 8 would conflict with applicable state or federal law or regulations, or (2) the Director determines based on clear and convincing evidence that a variance from the design standards set forth in this Section 8 is necessary to protect public health, safety, or welfare, based on specific characteristics of the proposed facility. Any variance from the design standards set forth in this Section 8 shall be allowed only to the extent necessary to comply with state or federal law or regulations or to protect public health, safety, or welfare.

CC 12-06-2022
155 of 759
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
PH: (408) 777-3354
FX: (408) 777-3333

PUBLIC WORKS DEPARTMENT
Updated August 27, 2020

GUIDELINES FOR ENCROACHMENT PERMIT SUBMITTALS FOR

WIRELESS COMMUNICATIONS SMALL WIRELESS FACILITIES ON CITY

OWNED POLES
The City of Cupertino seeks to permit wireless carriers to install small wireless facilities, within the public right-of-way, in order to provide robust cellular coverage and capacity throughout the City, while ensuring facilities are well maintained and do not significantly detract from City streetscapes.

The City does not regulate the technologies wireless carriers use, but it does have certain powers to regulate the time, place, manner, and aesthetics of wireless communications facilities. These guidelines are intended only to convey location and design preferences that may not necessarily apply to every small cell facility.

These guidelines provide information on City preferences for pole selection for small cell facilities, as well as the information the City needs to permit installation of small cell facilities in less-preferred areas. The City recommends that wireless carriers make every attempt to avoid pole locations that are less preferred, or in locations where they would have visual impacts of significance, such as in areas where views to public art works would be obstructed.

The City prefers installation of small cell facilities on City owned streetlights, due to the improved aesthetic qualities of these facilities. Wireless providers should work with the City to establish an agreement for the use of City owned streetlights.

Below are requirements and guidelines to aid wireless providers in planning facility locations and compiling the necessary information to obtain encroachment permits for small cell wireless facilities on City-owned poles. Wireless communications providers are also directed to review and comply with the City’s “Wireless Facilities Master Plan” that can be found on the City’s website.

Attachment C
CC 12-06-2022
156 of 759
Wireless Communication Facilities on City Owned Poles
August 27, 2020

Recommended Design Elements
Proposed wireless small cell facilities should substantially conform to the City’s Small Cell Design Standards found here:
https://www.cupertino.org/Home/ShowDocument?id=24383
Use of City Streetlights
A small cell facility proposed to be placed on a streetlight pole shall, except as provided below, be placed where an existing streetlight pole is located. New streetlight pole installations, where none currently exist, are prohibited unless expressly approved by the Public Works Department. New pole proposals may be permitted where the new pole infills gaps in streetlight coverage, per the Public Works Department’s spacing guidelines (typically spaced every 150 feet and staggered from one side of the road to the other).

Existing streetlight poles and foundation proposed for a wireless facility installation shall typically be replaced with a new pole and new foundation. The City’s existing streetlight poles follow the 1992 Caltrans Type 15 standards, including foundation, which have typically proven to lack the structural integrity necessary to support the addition of wireless equipment.

Where an existing streetlight pole must be replaced to provide the necessary structural integrity for wireless equipment, the pole’s foundation shall be completely removed during the pole replacement process. No foundation materials will be permitted to be abandoned in place. It is preferred that a new foundation be placed in the same location as the original foundation. If a new foundation cannot be placed in the same location, the applicant shall situate the new foundation as close to the original location as possible, and shall make any modifications to the mast arm that are necessary to ensure that the luminaire is in general alignment with adjacent streetlights, where feasible. If the City approves relocation of the foundation, the former foundation hole must be filled with a 2-sack controlled density fill.

Preferred Equipment Configurations:

Equipment placement configuration shall utilize the following layouts (in order of preference):
1) Utilize underground vaults where feasible. Grounds for infeasibility include, but are not limited to, instances where undergrounding could create CC 12-06-2022
157 of 759
Wireless Communication Facilities on City Owned Poles
August 27, 2020

environmental concerns, such as equipment that would emit noise or that would require connections to City storm drain systems. The Underground vaults shall be the minimum volume necessary to house WCF equipment.

Maximum vault size shall not exceed 4 feet 6-inches * 8 feet * 5 feet 7-inches deep, excluding space required for ventilation or dewatering equipment.

Modifications to these maximum dimensions shall only be permitted at the City’s discretion.
2) Where equipment cannot be placed in below grade vaults, the wireless facility designer shall, to the maximum extent possible, conceal radio equipment and the associated antenna(s) within a shroud at the top of the pole. 3) When radio equipment cannot be placed in the shroud, equipment shall be attached to a pole behind existing signage, but in no event shall it obscure or interfere with the visibility or functioning of the signage. 4) When no signage is available to conceal equipment being placed on the pole, the wireless facility designer shall situate equipment on the pole to minimize views of the equipment, such as placing the equipment on the side of the pole opposite the oncoming vehicular traffic, or, at the City’s sole discretion, shall utilize a pole design with an integrated base enclosure to conceal equipment. • Equipment placed on a pole where no signs are available for screening purposes shall typically be placed on the side opposite the direction of traffic.
• The base enclosure design shall utilize poles that are located outside of driveway and intersection sight lines, as established by City standard details (7-2, 7-4 & 7-6).

Additional equipment placement considerations:
• Minimum elevation for antenna shall be 26 feet above ground level. This minimum elevation is consistent with City Standard Streetlight dimensions. • Maximum elevations for antenna and shrouding equipment shall be 41 feet above ground level in non-residential zones, and 36 feet above ground level in residential zones. These maximum elevations are consistent with City Standard Streetlight dimensions.
• All components external to the pole shall have an integral color or shall be painted to match the color and/or materials of the pole.

CC 12-06-2022
158 of 759
Wireless Communication Facilities on City Owned Poles
August 27, 2020

• All wires and cabling shall be routed entirely underground and within the pole and any attached shroud, unless existing overhead electrical lines serve power to the pole and the electrical provider approves the overhead connection. • Proposed carrier fiber conductor to the streetlight pole shall be routed around, and not through, the City’s electrical pull box. Carrier fiber conductor may intercept (through a cut-in “Y”) and co-share the electrical conduit between the pole and the City’s electrical pull box. A max-cell innerduct must be used to separate fiber conductor from electrical conductor in the co-shared conduit. An alternative to this is for the carrier fiber to be placed directly from the carrier’s fiber pull box to the streetlight pole, through a new conduit sweep dedicated for fiber conductor, installed as part of the replaced pole foundation; • No equipment cabinets may be placed at grade without express approval of the City.
• Existing streetlight luminaires that are not LED shall be replaced with a City standard LED fixture for all new wireless small cell facility installations. • Existing banner hanging devices located on poles to be replaced shall be salvaged and reinstalled on the new facility. In no case shall wireless equipment interfere with the City’s ability to utilize these devices or to hang banners.

Any modification to existing small cell wireless equipment requires an encroachment permit from the Public Works Department. Installations of additional antennae, or modifications in power output, will require that the applicant provide the City with a permit application, construction plans, photo simulations, updated Electromagnetic energy (EME)/radio frequency report or certification that the facility is operating in compliance with FCC emission limits, structural report, noise study report, updated circuit analysis calculation and an updated activation report, showing compliance with the Federal Communications Commission (FCC) EMF limits.

Permitting Process for Small Cell Facilities on City-Owned Streetlight Poles 1) Pole Availability Request and Reservation:

Prior to an Initial Encroachment Permit Application Submittal (see below), applicants for small cell facilities are encouraged to submit a Pole Availability Request and Reservation with the Department of Public Works. The Pole Availability Request and Reservation process will verify whether a streetlight is available for a small cell facility, and if the proposed equipment layout is acceptable for the pole. If the pole is CC 12-06-2022
159 of 759
Wireless Communication Facilities on City Owned Poles
August 27, 2020