CC 04-03-2024 Searchable Packet.pdf — Cupertino City Council, April 3, 2024 (part 1 of 6)

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference Wednesday, April 3, 2024
5:15 PM
PUBLIC HEARINGS WILL NOT BEGIN EARLIER THAN 6:45 PM
Televised Special Meeting

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.
2) E-mail comments by 4:00 p.m. on Wednesday, April 3 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. Members of the public that wish to share a document must email [email protected] prior to the meeting.

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

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.

Oral public comments may be made during the public comment period for each agenda item.

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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.
3) 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_KJseLO5KQSCilGmv8v-i_w Phone
Dial: 669-900-6833 and enter Webinar ID: 929 7031 4784 (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: 929 7031 4784
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.

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3. When the Mayor calls for the item on which you wish to speak, click on “raise hand,” or, 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.

5. Members of the public that wish to share a document must email [email protected] prior to the meeting. These documents will be posted to the City’s website after the meeting.

NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby called for Wednesday, April 03, 2024, commencing at 5:15 p.m. in Community Hall Council Chamber, 10350 Torre Avenue, Cupertino, California 95014 and via teleconference. Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, “Special Meeting."

SPECIAL MEETING

CALL TO ORDER

PLEDGE OF ALLEGIANCE

ROLL CALL

STUDY SESSION

1. Subject: Two-year FY 2023-2025 City Work Program
Recommended Action: Reaffirm and accept minor modifications to the two-year FY 2023-2025 City Work Program
Presenters: Matt Morley, Assistant City Manager and Astrid Robles, Senior Management Analyst
Staff Report
A - FY 2023-2025 City Work Program as Adopted April 2023 and Status Updates B - Commission Proposals
C - Proposed FY 2024-2025 City Work Program
RECESS

CLOSED SESSION REPORT

CEREMONIAL ITEMS

2. Subject: Recognition of April as Fair Housing Month
Recommended Action: Recognize April as Fair Housing Month

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City Council Agenda April 3, 2024
A - Proclamation

3. Subject: Recognition of April 1 as Odisha Day in the City of Cupertino Recommended Action: Recognize April 1 as Odisha Day in the City of Cupertino A - Certificate of Recognition

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 for discussion, including informational items. The total time for Oral Communications will ordinarily be limited to one hour. Individual speakers are limited to three (3) minutes. As necessary, the Chair may further limit the time allowed to individual speakers, or reschedule remaining comments to the end of the meeting on a first come first heard basis, with priority given to students. In most cases, State law will prohibit the Council from discussing or making any decisions with respect to a matter not listed on the agenda. 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.

CONSENT CALENDAR (Items 4-6)
Items appearing on the Consent Calendar are considered routine City business and may be approved by one motion. Typical items may include meeting minutes, awards of contracts, the ratification of accounts payable, and second readings of ordinances. Any member of the Council may request to have an item removed from the Consent Calendar based on the rules set forth in the City Council Procedures Manual. Members of the public may provide input on one or more consent calendar items when the Mayor asks for public comments on the Consent Calendar.

4. Subject: Approve the March 19 City Council minutes
Recommended Action: Approve the March 19 City Council minutes A - Draft Minutes

5. Subject: Approve a First Amendment to the contract with PlaceWorks for an increase of $164,520 to prepare Residential and Mixed-Use Residential Objective Design Standards (FY 2020-21 WP Item) for a total not-to-exceed amount of $1,261,277 and associated budget modification

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City Council Agenda April 3, 2024
Recommended Action: That the City Council adopt Resolution No. 24-029 (Attachment A) to:

1. Authorize the City Manager to execute a first amendment to the existing consultant agreement with PlaceWorks to prepare the Residential and Mixed-Use Residential Objective Design Standards, increasing the contract amount by $164,520 for a new total not-to-exceed contract amount of $1,261,277;

2. Find that there are valid reasons to waive the competitive procurement procedures for selection of Placeworks;

6. Subject: Amendments to Municipal Code Chapter 5.50 (Regulating the Sale of Tobacco Products) and to the Memorandum of Understanding (“MOU”) with the County of Santa Clara to enforce Chapter 5.50
Recommended Action: 1. Conduct a first reading of and introduce Ordinance No. 24- 2257, entitled “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS”

2. Authorize the City Manager to amend the Memorandum of Understanding (“MOU”) with the County of Santa Clara to administer, implement, and enforce Municipal Code Chapter 5.50 (Tobacco Retailer Permit Ordinance) Staff Report Tobacco Ordinance and MOU update 4.3.24
A – Draft Ordinance No. 24-2257 (Amending Municipal Code Chapter 5.50) B – Draft Ordinance No. 24-2257 (redline)
C – Letter to Tobacco Retailers
D – Amended Memorandum of Understanding (Clean)
E – Amended Memorandum of Understanding (Redline)

PUBLIC HEARINGS
Effective January 1, 2023, Government Code Section 65103.5 (SB 1214) limits the distribution of copyrighted material associated with the review of development projects. Members of the public wishing to view plans that cannot otherwise be distributed under SB 1214 may make an appointment with the

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City Council Agenda April 3, 2024
Planning Division to view them at City Hall by sending an email to [email protected]. Plans will also be made available digitally during the hearing to consider the proposal.

7. Subject: Amendment to a Development Agreement for the Cupertino Village Boutique Hotel Project from five to eight years and associated environmental review. (Application No(s): DA-2023-002; Applicant(s): KIMCO (Sunil Plaha); Location: 10801 and 10805 N. Wolfe Rd.; APN: 316 45 017, 316 05 056)
Recommended Action: That the City Council conduct the public hearing and conduct the first reading of Ordinance No. 24-2258, entitled: "APPROVING AN AMENDMENT

TO A DEVELOPMENT AGREEMENT FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL" (Attachment A):

1. Find the amendment to the existing development agreement consistent with the project's Mitigated Negative Declaration (State Clearinghouse No. 2018112025) and

2. Adopt the ordinance to amend the existing Development Agreement (DA-2023-002).

Presenter: Gian Martire, Senior Planner
Staff Report
A - Draft Ordinance No. 24-2258
B – Planning Commission Resolution No. 2024-03
C - Ordinance No. 19-2186
D- Justification Letter
E – Public Comments

8. Subject: Amendment to a Development Agreement (DA-2018-01) for the De Anza Hotel Project from five to eight years and associated environmental review. (Application No(s): DA-2023-003; Applicant(s): De Anza Properties (John Vidovich); Location: 10931 N De Anza Blvd.; APN: 326-10-061)
Recommended Action: That the City Council conduct the public hearing and conduct the first reading of Ordinance No. 24-2259, entitled: "APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR THE DE ANZA HOTEL PROJECT" (Attachment A):

1. Find the amendment to the existing development agreement consistent with the project's Mitigated Negative Declaration (State Clearinghouse No. 2019079010) and

2. Adopt the ordinance to amend the existing Development Agreement (DA-2023-003).

Presenter: Gian Martire, Senior Planner
Staff Report
A - Draft Ordinance No. 24-2259
B – Planning Commission Resolution No. 2024-03
C- Ordinance No. 20-2195
D- Justification Letter
E – Public Comments

ACTION CALENDAR

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9. Subject: Memorial Park Specific Plan Design and the Parks and Recreation System Master Plan Initial Study/Mitigated Negative Declaration Addendum.

Recommended Action: 1. Adopt Resolution No. 24-030, Addendum to the Parks and Recreation System Master Plan Initial Study/Mitigated Negative Declaration; and

2. Approve the Memorial Park Specific Plan Design.

Presenter: Susan Michael, Capital Improvement Programs Manager Staff Report
A - MPSP Report
B - MPSP Report Appendices
C - PRSMP IS-MND Addendum-MPSP
D - PRSMP IS-MND Addendum-MPSP Appendices B-F
E - Draft Resolution

ITEMS REMOVED FROM THE CONSENT CALENDAR

CITY MANAGER REPORT

ORAL COMMUNICATIONS - CONTINUED

COUNCILMEMBER REPORTS

10. Subject: Councilmember Reports
A - Council Reports, Chao
B - Council Reports, Fruen
C - Council Reports, Mohan
D - Council Reports, Moore
E - Council Reports, Wei

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 95014; 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.

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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 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.

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CITY OF CUPERTINO
Agenda Item
24-13017 Agenda Date: 4/3/2024
Agenda #: 1.

Subject: Two-year FY 2023-2025 City Work Program
Reaffirm and accept minor modifications to the two-year FY 2023-2025 City Work Program Presenters: Matt Morley, Assistant City Manager and Astrid Robles, Senior Management Analyst CITY OF CUPERTINO Page 1 of 1 Printed on 3/27/2024
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CITY COUNCIL STAFF REPORT
Meeting: April 3, 2024
Subject
Two-year FY 2023-2025 City Work Program
Recommended Action
Reaffirm and accept minor modifications to the two-year FY 2023-2025 City Work Program
Reasons for Recommendation
Background
The Council maintains a City Work Program (CWP) as a two-year effort, revisiting annually to make minor adjustments and redirect efforts. Typically, CWP items take significant staff effort and one or even two years to complete. Normal daily operations encompass approximately 90 percent of city staff time, with variations from department to department depending on many influencing factors. By establishing the Work Program in a collaborative manner, weighing workloads and priorities, staff is better able to communicate where there is capacity, and the Council is better able to see meaningful results over the two-year timeframe.

As established last year, all City Work Program items should:
 Fall under at least one of the five Council Goals
o Public Engagement and Transparency
o Transportation
o Housing
o Sustainability & Fiscal Strategy
o Quality of Life
 Have timelines that are finite in nature, with an expectation of completion within the next two fiscal years.
 Be unique to the Work Program and not duplicated in other funded efforts. o For example, Capital Improvement Program Projects should not be included  Be large significant projects that are not operational in nature  Be considerate of budget and staff time/capacity
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On April 4, 2023, the City Council approved a two-year CWP for FY 2023-2025 and directed staff to bring it back for Council review in one year. The FY 2023-2025 CWP includes a total of 24 projects. As part of the City’s budget balancing strategy, the City Council approved funding for 15 of the 24 projects for FY 2023-2024. The remaining nine projects were placed on hold to be considered this year. These 15 projects have been separated by scope and department into 26 individual projects on the CWP Dashboard to ensure better quarterly updates. Each project and status update can be found in Attachment A and on the dashboard at cupertino.org/cityworkprogram.

As of March 2024, five of the 26 projects have been completed and 10 more projects are expected to be completed by the end of this fiscal year. The chart below illustrates that over half of the projects that were adopted into the CWP last year are still pending completion. The list of these projects and their status can be viewed in Attachment A.

Staff Recommendation
Staff recommends that the City Council reaffirm its commitment to completing a twoyear CWP as adopted in April 2023. This will include the following 11 projects on the adopted FY 23-25 CWP that will be ongoing next year:
# Project Description
1 Tree List (CDD) Review and revise development tree list (per Ch. 14.18:

Protected Trees) with an emphasis on appropriate trees
and native species.
2 Tree List (PW) Project phases:
1) Review, revise, and communicate street tree list with an emphasis on appropriate trees and native species.
2) Develop an Urban Forest program scope and cost for
future consideration.

Complete
14%
To be completed
this FY
29%
In Progress
31%
Not started
26%
FY 23-25 City Work Program Projects
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3 Public Safety (License Plate
Readers)
Deploy city-owned license plate readers and implement
policies to allow neighborhood-owned ones.
4 Public Safety (Block Leader) Strengthen Block Leader/Neighborhood Watch programs to ensure the leaders are active and expand
the coverage of active neighborhoods.
5 Preserve existing and
develop new BMR/ELI
Housing
Explore opportunities to preserve existing expiring
BMR housing.

Develop ELI (Extremely Low Income) and BMR
housing units for Developmentally Disabled
individuals (IDD) on City-owned property as well as
the County-owned sites.
6 Whole City Policy Review Repeat the 2013 process of compiling and reviewing all City Policies including 1) Administrative and 2)
Council policies and provide
recommendations/updates, e.g. Green Purchasing,
Property Acquisition
7 Fiscal Procedures and
Policies Handbook
Develop the handbook to ensure standardization of
accounting, budget, investment, procurement policies,
procedures, rules and regulations.
8 Support for the unhoused Collaborate and fund jointly with West Valley efforts to address regional needs and find workable support for
the Unhoused.
9 Municipal Water System To analyze and recommend options for the continued operation of the system currently and at the end of
lease with San Jose Water Company in September 2024.
10 5G Ordinance Update 5G Ordinance
11 Residential and Mixed-Use
Residential Design
Standards
Create objective design standards for residential
projects, including ensuring adequate buffers from
neighborhood low-density residential development
In addition, staff has reviewed the CWP both internally and with each Commission to ensure continued relevancy. As a result of this review, Commissions, in their advisory capacity, provided recommended adjustments (Attachment B). Staff recommends the following additions based on Commission insight and the internal staff review:
# Project Description
12 Art in Public and Private
Areas
(Proposed by Sustainability
Commission)
Revisit Municipal Code standards for art in public
and private development, including the standards
in the Municipal Code and developing an Art-inlieu fee policy. 13 Speed Limit Lowering (AB
43)
(Proposed by Bike Ped
Commission)
Lower speed limits where feasible pursuant to
state adopted Assembly Bill 43 (Signed by
Governor in 2021)
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14 Homestead Bike Lane Study
& Safe Routes to School
(Proposed by Bike Ped
Commission)
Support collaboration efforts on multijurisdictional projects along Homestead Road that include upgrading pedestrian and bicycle
infrastructure.
15 Poet Laureate Playbook
Update
(Proposed by Library
Commission)
Update the Cupertino Poet Laureate Playbook to
streamline processes, outline clear expectations,
and expand applicant qualifications. The
playbook has not been updated since 2016.
16 Electrification Study
(Proposed by Sustainability
Commission)
Conduct public outreach, policy research, and
coordinate with regional efforts to develop policy
options for electrification of Cupertino's buildings
in light of recent legal rulings inhibiting certain
electrification efforts. Note: This item is necessary to ensure the continued legal enforceability of the City’s building electrification measures in light of California Restaurant Association v. City of Berkeley, 89 F.4th
1094 (9th Cir. 2024).
17 Recycled Water Feasibility
Study
(Proposed by Library and
Sustainability Commissions)
Develop Recycled Water Feasibility Study.

Include Blackberry Farm focus and extension of
recycled water from SCVWD.
18 Sign Ordinance Update Sign Ordinance
Note: Staff is recommending this item as a result of
numerous requests from Council and the Public and a
clear need to update this ordinance.
19 The Rise: Construction
stakeholder engagement
Improve engagement with stakeholders to ensure
progress with construction and reduce barriers.
20 New Bike Ped Plan 1) Update the current Bicycle and Pedestrian Plans and combine them to create a
comprehensive Active Transportation Plan.
2) Consider Complete Streets concepts to enhance
the interface between Active Transportation
improvements and public and private
transportation systems.

The proposed City Work Program for FY 24-25, including all staff recommended items, is included in Attachment C.

Staff looks forward to receiving Council direction to continue the work on the two-year FY 23-25 CWP.

Sustainability Impact
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The proposed updated CWP includes projects that advance the City’s sustainability goals (e.g., Electrification Study). Project-specific impacts will be analyzed in connection with approvals required for projects included in the updated CWP.

Fiscal Impact
Any necessary budget changes will be addressed as part of the proposed budget in May.

California Environmental Quality Act
Environmental review will be conducted as required for projects included in the updated CWP.
_____________________________________
Prepared by: Astrid Robles, Senior Management Analyst
Reviewed by: Tina Kapoor, Deputy City Manager
Matt Morley, Assistant City Manager
Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A. FY 2023-25 City Work Program as Adopted April 2023 and Status Updates B. Commission Proposals
C. Proposed FY 2024-2025 City Work Program
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ATTACHMENT A
# Project Description Status/Updates
1 Council Governance Reform
Package

1. Revised Ethics Policy consistent with City response to the Civil Grand Jury Report authorized on 2/21/2023

2. Investigate and report back on incidents of violations of the Municipal Code and Ethics Policy relative to the Council‐staff relationship cited in the Civil Grand Jury Report
Completed
2 City Owned properties Inventory and assess existing facilities and prepare a long‐range planning report for three City‐owned properties (including, but not limited to Blesch, Byrne, and Stocklemeir).

Completed
3 Analyze revenue tax
measures
Analyze potential revenue resources such as transient occupancy tax, sales tax, property tax, utility users’ tax, the City‐owned municipal water system, and potential lease/rental income to address possible future financing challenges.

Completed
4 Budget Audit Audit the Budget and Budget Policies. Completed 5 Cybersecurity Public
Education (FY 23)
Provide education on cybersecurity to City residents, guests, and businesses.

Completed
6 Vision Zero Develop a Vision Zero Policy and Action Plan and hire a consultant. The Plan will guide policies and programs with the goal of eliminating fatalities on Cupertino roadways. Special emphasis will be placed on routes to, and streets surrounding, Cupertino schools.

Anticipated completion: April 2024
7 Public Safety (Commercial
Corridor)
Explore best practices to deter crime in commercial areas and bring options to Council.

Anticipated completion: June 2024
An info memo with details of the
suggested program will be posted on the
City webpage by June 30, 2024.
8 Senior Survey Assess Survey results and develop a plan to increase awareness of programs and services for seniors based on gaps identified by the survey.

Anticipated completion: June 2024
The survey closed in Spring 2023 and the
analysis concluded in Fall 2023. The survey
results were analyzed and show that the
City ranks high in awareness of programs
and services for seniors. Staff is excited to
know that information is being received
by our senior community and will
continue to market similarly. Full survey
results can be found at
cupertino.gov/senior.
9 Senior Services and Youth
Engagement
Connect seniors with youth and their families with inclusive activities.

Anticipated completion: June 2024
The City hosts various opportunities
throughout the year for inter‐
generational engagement. The Parks and
Rec Commission, Senior Advisory Council,
Teen Commission, and Senior Center
Volunteers, provide feedback and input
on these events. On an as‐needed basis,
the City considers cost, need, and
experience, when partnering with other
organizations to host these events.
10 DOLA Transition successful trial DOLA programs to permanent programs with a staff level permitting process housed in Parks and Rec.

Anticipated completion: June 2024
FY 2023‐2025 City Work Program as Adopted April 2023 with Status Updates Expected to be completed by June 30, 2024
Completed Items
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ATTACHMENT A
# Project Description Status/Updates
FY 2023‐2025 City Work Program as Adopted April 2023 with Status Updates 11 DOLA Ammenities Amenities for DOLA programs in City parks, e.g., water facilities for dogs, fencing, benches, etc.

Anticipated completion: June 2024
12 Housing Element Update Housing Element and complete rezoning, General Plan Amendments and EIR by December 2023.

Anticipated completion: April 2024
13 Commission Governance
Reform Package

1. Revised Commissioner’s Handbook to align it with Council Procedures Manual

2. Investigate & report back on incidents of violations of the Muni Code re: the Commission‐Staff relationship

3. Realignment of Commissioner terms of office

4. Establishment/revision of commissioner qualifications Anticipated completion: June 2024
14 Lawson Middle School
Bikeway (FY 23)
Retain consultant to prepare feasibility study which will evaluate alternatives that provide a separated bike path for students riding to Lawson Middle School.

Anticipated completion: May 2024
15 Bicycle Facilities (FY 23) Increase the inventory of bicycle facilities and amenities, such as bike racks, citywide.

Anticipated completion: June 2024
16 Tree List (CDD) Review and revise development tree list (per Ch. 14.18:

Protected Trees) with an emphasis on appropriate trees
and native species.

Estimated completion: December 2024
This project was on hold until after
completion of the Housing Element.
17 Tree List (PW) Project Phases:
1) Review, revise, and communicate street tree list with an emphasis on appropriate trees and native species.
2) Develop an Urban Forest program scope and cost for
future consideration.

Estimated completion: January 2025
Staff is currently working on an RFP
for a consultant with expertise in this
area for both public trees (CMC

14.12) and Private Trees (CMC 14.18).
18 Public Safety (License
Plate Readers)
Deploy city‐owned automated license plate readers (ALPR) and implement policies to allow neighborhood‐owned
ones.

Estimated completion: September 2024
This project was on hold pending County
update to ALPR policy, which was
updated in January 2024. Public Safety
Commission received an update in 2023
and the next update will be in July 2024.
19 Public Safety (Block
Leader)
Strengthen Block Leader/Neighborhood Watch programs to
ensure the leaders are active and expand the coverage of active neighborhoods.

Estimated completion: October 2024
The City received a grant to increase
community cohesion and resilience. The
City is using these funds to enhance the
Block Leader program as set forth in the
established requirements for active Block
Leaders in FY 23, which can be found on
the Block Leader webpage.
20 Preserve existing and
develop new BMR/ELI
Housing
Explore opportunities to preserve existing expiring BMR housing. Develop ELI (Extremely Low Income) and BMR
housing units for Developmentally Disabled individuals
(IDD) on City‐owned property as well as the County‐owned sites.

Estimated completion: January 2025
21 Whole City Policy Review Repeat the 2013 process of compiling and reviewing all City Policies including 1) Administrative and 2) Council policies and provide recommendations/updates, e.g. Green
Purchasing, Property Acquisition.

Estimated completion: December 2024
Ongoing Two‐Year Projects Carrying into FY 24‐25
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ATTACHMENT A
# Project Description Status/Updates
FY 2023‐2025 City Work Program as Adopted April 2023 with Status Updates 22 Fiscal Procedures and
Policies Handbook
Develop the handbook to ensure standardization of
accounting, budget, investment, procurement policies,
procedures, rules and regulations.

Estimated completion: December 2024
23 Support for the unhoused Collaborate and fund jointly with West Valley efforts to address regional needs and find workable support for the Unhoused.

Estimated completion: September 2024
24 Municipal Water System To analyze and recommend options for the continued operation of the system currently and at the end of lease with San Jose Water Company in September 2024.

Estimated completion: September 2024
25 5G Ordinance Update 5G Ordinance Estimated completion: Summer/Fall 2024 26 Residential and Mixed Use
Residential Design
Standards
Create objective design standards for residential projects, including ensuring adequate buffers from neighborhood
low‐density residential development.

Estimated completion: December 2024
27 Recyled Water Feasibility
Study
Develop Recycled Water Feasibility Study. Include Blackberry Farm focus and extension of recycled water from SCVWD.

Staff recommends adding this item to the
proposed CWP to inform planned
irrigation improvements at Blackberry
Farm Golf Course.
28 The Rise: Construction
stakeholder engagement
Improve engagement with stakeholders to ensure progress with construction and reduce barriers.

Staff recommends adding this item to the
proposed CWP as this project is ongoing.
29 Revise and update Heart of
the City Special Area
Prioritize following completion of Housing Element:

1. Address effect of AB 2011 and build on Housing Element goals to facilitate housing production in transit‐oriented locations

2. Tailor permissible uses to revitalize local public‐facing commercial uses (retail/restaurant/entertainment/professional office, etc.)
Staff recommends keeping this project on
hold due to its high cost and limited staff
capacity.
30 Homelessness Jobs Project
and Transitional Housing
Continue the Homeless Jobs program for two individuals for the third year. Revisit for review and consider Transitional Housing.

Staff recommends not continuing this item
due to its high cost and limited staff
capacity.
31 Privacy Screening and
Balconies Code
Prioritize following completion of Housing Element:

Muni Code (Ch.19.28: R‐1 Zones) Privacy Screening and
Balconies. Update privacy planting list to be climate
appropriate/native.

Staff recommends keeping this project on
hold due to limited staff capacity.
32 Pond Repurposing at
Blackberry Farm
Repurposing ponds at Blackberry Farm, focus on groundwater recharge.

Staff recommends keeping this project on
hold as this is a future project on the CIP 5‐
year plan
33 New Bike Ped Plan 1) Update the current Bicycle and Pedestrian Plans and combine them to create a comprehensive Active Transportation Plan. 2) Consider Complete Streets concepts to enhance the interface between Active Transportation improvements and public and private transportation systems.

Staff recommends adding this item to the
proposed CWP as plans are generally
updated every five years.
34 Real Estate Purchasing Policy Create Real Estate Purchasing Policy Staff recommends keeping this project on hold due to limited staff capacity.
35 280 Stretch as Scenic
HIghway
Establish/maintain I‐280 as scenic highway Staff recommends keeping this project on hold due to limited staff capacity.

FY 23‐25 Unfunded Projects On Hold
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ATTACHMENT B
#
Commission
Proposal Project Description Staff Recommendation Goal
1 Arts and Culture Revise & Update Heart of the City
Special Area
Include standards for early engagement of the AACC in the development process in evaluating uses to revitalize new and existing local public facing commercial uses (retail/restaurant/entertainment/professional office, etc.

Staff recommends considering this item in the future
due to its high cost and limited staff capacity.

Quality of Life
2 Arts and Culture Art in Public and Private Areas Revisit Municipal Code standards for art in public and private development, including the standards in the Municipal Code and developing an Art‐in‐lieu fee policy.

Staff recommends adding this item and it is already on
the proposed CWP.

Quality of Life
3 Bike Ped Active Transportation Plan 1. Design a new Bicycle Pedestrian Plan to expand on the Bicycle and Pedestrian Plans

2. Integrate Complete Streets concepts to create a better interface between active transportation and VTA transit systems

3. Bicycle and vehicular parking standards revision
This item is duplicative with "New Bike Ped Plan",
which is already on the proposed CWP.

Transportation
4 Bike Ped Speed Limit Lowering (AB 43) Lower speed limits where feasible pursuant to state adopted Assembly Bill 43 Staff recommends adding this item and it is already on the proposed CWP.

Transportation
5 Bike Ped Homestead Bike Lane Study &
Safe Routes to School
Support collaboration efforts on multi‐jurisdicitonal projects along Homestead Road that include upgrading pedestrian and bicycle infrastructure.

Staff recommends adding this item and it is already on
the proposed CWP.

Transportation
6 Housing Affordable Housing
Research Report &Database
Hire a 3rd party consultant to provide a comprehensive research report on the various types of options for affordable housing, including ADUs, and create a database of information to make it easily accessible. Use community events to gather public input, and events with affordable housing builders.

Staff does not recommend adding this item as this
work is done as part of the Housing Element.

Housing
7 Housing WVCS Homeless Jobs Program Support the WVCS Homeless Jobs Program, but would also like to consider other providers of similar programs to reduce the admin costs.

Staff does not recommend continuing this project dueto its high cost and limited staff capacity.

Housing
8 Housing Preserve existing and develop
new BMR/ELI Housing
Support the existing CWP item to preserve existing and develop new BMR/ELI housing. This item is in progress and currently on the CWP. Housing 9 Library / Teen Student Internship Program Implement a program to provide internship opportunities for high school and community college students.

Staff does not recommend adding this item as the City
currently has an internship pilot program with De
Anza College
Public Engagement and
Transparency
10 Library Poet Laureate Playbook Update Update the Cupertino Poet Laureate Playbook to streamline processes, outline clear expectations, and expand applicant qualifications. The playbook has not been updated since 2016.

Staff recommends adding this item and it is already on
the proposed CWP.

Public Engagement andTransparency
11 Library /Sustainability
Recycled Water Feasibility Study Develop Recycled Water Feasibility Study. Include Blackberry Farm focus and extension of recycled water from SCVWD.

Staff recommends adding this item and it is already on
the proposed CWP.

Sustainability and Fiscal Strategy
All Commission Proposals
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ATTACHMENT B
#
Commission
Proposal Project Description Staff Recommendation Goal
All Commission Proposals
12 Parks and Rec Optimize Parks and
Recreation Facilities
Review utilization of current facilities to determine where facilities are underutilized for increased utilization and/or potential revenue enhancement.

Staff does not recommend adding this item as this is
done operationally on an ongoing basis.

Sustainability and Fiscal Strategy
13 Parks and Rec Virtual Streaming of PRC
Meetings
Investigate low‐cost options for streaming and recording of Parks and Recreation Commission meetings.

Staff does not recommend adding this item as staff is
currently reviewing the possibility for hybrid
meetings.

Public Engagement and
Transparency
14 Planning Complete Streets Ordinance Use the City of San Jose Complete Streets Ordinance as a starting point, so we’re not starting from scratch
Staff does not recommend adding this item as the City
already adopted a resolution (No. 18‐034) establishing
a Complete Streets policy that is still in effect today.

Transportation
15 Planning Small Business Revitalization
Ordinance
Create a “Small Business Revitalization” ordinance to support our small businesses, fill empty storefronts, and create a thriving city.

Staff does not recommend adding this item as this is
done operationally on an ongoing basis.

Quality of Life
16 Planning Simplify Permits for Minor Repairs
and Small Projects
Streamline the process for obtaining permits for minor repairs and small projects. ‐ Increase the number of online permits
‐ Streamline permit process for small repairs and projects ‐ Keep the permit scope only about the specific repair or project and don't add additional requirements
Staff does not recommend adding this item due to
limited staff capacity.

Quality of Life
17 Public Safety License Plate Readers Deploy city‐owned license plate readers and implement policies to allow neighborhood‐owned ones.

This item is in progress and currently on the CWP. Quality of Life 18 Public Safety Public Safety ‐ Block Leader and
Neighborhood Watch
Strengthen Block Leader/Neighborhood Watch programs to ensure the leaders are active and expand the coverage of active neighborhoods.

This item is in progress and currently on the CWP. Quality of Life 19 Public Safety Public Safety in Commercial Areas Explore best practices to deter crime in commercial areas and bring options to Council. This item is in progress and is expected to be completed this fiscal year.

Quality of Life
20 Sustainability Electrification Study Conduct public outreach, policy research, and coordinate with regional efforts to develop policy options for electrification of Cupertino's buildings in light of recent legal rulings inhibiting certain electrification efforts.

Staff recommends adding this item and it is already on
the proposed CWP.

Sustainability and Fiscal Strategy
21 Sustainability Consumption‐based
greenhouse gas inventory
Conduct an inventory of the greenhouse gases created by consumption from municipal operations
Staff recommends considering this item next fiscal
year due to staffing capacity.

Sustainability and Fiscal Strategy
22 Teen Youth who work Encourage more youth and young adults in schools to work and also help small businesses to reduce the burden caused higher minimum wages. For example, the City could provide $2/hour to compensate local small businesses.

Staff does not recommend adding this item due to
lack of research to support this model.

Quality of Life
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ATTACHMENT B
#
Commission
Proposal Project Description Staff Recommendation Goal
All Commission Proposals
23 Teen New Bicycle Pedestrian Plan 1. Design a new Bicycle Pedestrian Plan to expand on the expired Bicycle and Pedestrian Plans

2. Integreate Complete Streets concepts to create a better interface between active transportation and VTA transit systems

3. Bicycle and vehicular parking standards revision
Staff recommends adding this item and it is already on
the proposed CWP.

Transportation
24 TICC Study to improve City
Governance using AI
A study for the role of Artificial Intelligence in City Governance and how it can improve transparency and fiscal strategy.

Staff does not recommend adding this item due to
budgetary constraints and scarcity of reference cases.

Sustainability and Fiscal Strategy
25 TICC Educational campaign for
Camera Registry Program
An educational campaign to publicize the Santa Clara County Sheriff's Office's Camera Registry Program (CRP) to improve quality of life for residents.

Staff does not recommend adding this item as this is
currently being worked on in the License Plate Reader
item.

Quality of Life
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ATTACHMENT C
# Project Description Goal
1 Tree List (CDD) Review and revise development tree list (per Ch. 14.18: Protected Trees) with an emphasis on appropriate trees and native species.

Sustainability and Fiscal Strategy
2 Tree List (PW) Project Phases:
1)Review, revise, and communicate street tree list with an emphasis on appropriate trees and naƟve species.2)Develop an Urban Forest program scope and cost for future consideraƟon.

Sustainability and Fiscal Strategy
3 Public Safety (License Plate Readers) Deploy city‐owned license plate readers and implement policies to allow neighborhood‐owned ones. Quality of Life 4 Public Safety (Block Leader) Strengthen Block Leader/Neighborhood Watch programs to ensure the leaders are active and expand the coverage of active neighborhoods.

Quality of Life
5 Preserve existing and develop new BMR/ELI Housing Explore opportunities to preserve existing expiring BMR housing.

Develop ELI (Extremely Low Income) and BMR housing units for Developmentally Disabled individuals (IDD) on City‐ owned property as well as the County‐owned sites.

Housing
6 Whole City Policy Review Repeat the 2013 process of compiling and reviewing all City Policies including 1) Administrative and 2) Council policies and provide recommendations/updates, e.g. Green Purchasing, Property Acquisition Public Engagement and
Transparency
7 Fiscal Procedures and Policies Handbook Develop the handbook to ensure standardization of accounting, budget, investment, procurement policies, procedures, rules and regulations.

Sustainability and Fiscal Strategy
8 Support for the unhoused Collaborate and fund jointly with West Valley efforts to address regional needs and find workable support for the Unhoused.

Housing
9 Municipal Water System To analyze and recommend options for the continued operation of the system currently and at the end of lease with San Jose Water Company in September 2024.

Sustainability and Fiscal Strategy
10 5G Ordinance Update 5G Ordinance Quality of Life
11 Residential and Mixed Use Residential Design
Standards
Create objective design standards for residential projects, including ensuring adequate buffers from neighborhoodlow‐density residential development Quality of Life
12 Art in Public and Private Areas
(Proposed by Sustainability Commission)
Revisit Municipal Code standards for art in public and private development, including the standards in the Municipal Code and developing an Art‐in‐lieu fee policy.

Quality of Life
13 Speed Limit Lowering (AB 43)
(Proposed by Bike Ped Commission)
Lower speed limits where feasible pursuant to state adopted Assembly Bill 43 Tranportation 14 Homestead Bike Lane Study & Safe Routes to School
(Proposed by Bike Ped Commission)
Support collaboration efforts on multi‐jurisdicitonal projects along Homestead Road that include upgradingpedestrian and bicycle infrastructure.

Tranportation
15 Poet Laureate Playbook Update
(Proposed by Library Commission)
Update the Cupertino Poet Laureate Playbook to streamline processes, outline clear expectations, and expand applicant qualifications. The playbook has not been updated since 2016.

Quality of Life
16 Electrification Study
(Proposed by Sustainability Commission)
Conduct public outreach, policy research, and coordinate with regional efforts to develop policy options forelectrification of Cupertino's buildings in light of recent legal rulings inhibiting certain electrification efforts.

Sustainability and Fiscal Strategy
17 Recycled Water Feasibility Study
(Proposed by Library and SustainabilityCommissions)
Develop Recycled Water Feasibility Study. Include Blackberry Farm focus and extension of recycled water fromSCVWD.

Sustainability and Fiscal Strategy
18 Sign Ordinance Update Sign Ordinance Quality of Life19 The Rise: Construction stakeholder engagement Improve engagement with stakeholders to ensure progress with construction and reduce barriers. Quality of Life 20 New Bike Ped Plan 1) Update the current Bicycle and Pedestrian Plans and combine them to create a comprehensive Active Transportation Plan.2) Consider Complete Streets concepts to enhance the interface between Active Transportation improvements and public and private transportation systems.

Tranportation
Ongoing Projects
New Proposed Projects
Proposed FY 24‐25 City Work Program
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CITY OF CUPERTINO
Agenda Item
24-12929 Agenda Date: 4/3/2024
Agenda #: 2.

Subject: Recognition of April as Fair Housing Month
Recognize April as Fair Housing Month
CITY OF CUPERTINO Page 1 of 1 Printed on 3/27/2024
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CITY OF CUPERTINO
Agenda Item
24-13059 Agenda Date: 4/3/2024
Agenda #: 3.

Subject: Recognition of April 1 as Odisha Day in the City of Cupertino Recognize April 1 as Odisha Day in the City of Cupertino CITY OF CUPERTINO Page 1 of 1 Printed on 3/27/2024
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CITY OF CUPERTINO
Agenda Item
23-12649 Agenda Date: 4/3/2024
Agenda #: 4.

Subject: Approve the March 19 City Council minutes
Approve the March 19 City Council minutes
CITY OF CUPERTINO Page 1 of 1 Printed on 3/27/2024
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, March 19, 2024

SPECIAL MEETING
At 5:16 p.m., Mayor Sheila Mohan 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 Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

STUDY SESSION

1. Subject: Capital Improvement Programs (CIP) Fiscal Year (FY) 2024/2025 and Five-year Plan.

Recommended Action: Receive presentation and provide input on the development of the proposed CIP FY 2024/2025 and five-year plan.

Presenter: Susan Michael, Capital Improvement Programs Manager Written communications for this item included a staff presentation, desk item report with staff responses to councilmember questions, Attachment E - 2023 Bollinger Road Corridor Grant documentation, Attachment F - 2021 Bollinger Road Corridor Safety Study, and emails to Council.

Director of Public Works Chad Mosley and Capital Improvement Programs Manager Susan Michael gave a presentation.

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

Bicycle Pedestrian Commissioner Joel Wolfe (representing self) Parks and Recreation Commissioner Jennifer Shearin (representing self) Dolly Sandoval (submitted written comments)
Byron Rovegno
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Louise Saadati
San R
Lisa
Tracy K
Peggy Griffin
Xiang Yang
Jean Bedord
Nan Xia
Bicycle Pedestrian Commissioner Herve Marcy (representing self) Housing Commissioner Connie Cunningham (representing self) Mayor Mohan closed the public comment period.

Councilmembers asked questions and made comments on all Proposed FY24-25 Projects except Bollinger Road Corridor Design.

At 6:31 p.m., Vice Mayor Fruen recused himself from the discussion regarding Bollinger Road Corridor Design and left the meeting.

MOTION: Mohan moved and Wei seconded to extend the meeting another 15 minutes to continue discussion on the item. The motion carried with the following vote: Ayes:

Mohan, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent (Recused): Fruen.

Councilmembers provided the following input on Bollinger Road Corridor Design (Fruen recused):
o Supports proceeding with staff recommendation as presented and seeking grant funding.
o Supports providing direction to staff to focus on both Alternative A and Alternative B options.
o Supports a solution addressing pedestrian collisions at Bollinger/Wolfe intersection; not persuaded on reduction of lanes and separated bike lanes in this location versus other parts of the City.
o Supports proceeding with the Bollinger Road design traffic analysis/feasibility design as presented, returning to Council before any construction, and leveraging grant funding.

At 6:49 p.m., Vice Mayor Fruen returned to the dais.

Councilmembers provided the following input on all proposed FY24-25 projects except the Bollinger Road Corridor Design:
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o Supports exploring a possible reduction in all existing/new projects and all other service reduction fee increases.
o Supports proceeding with staff recommendation.
o Describe the actual full expense of specific projects; describe each of the restricted fund sources that some of these projects rely on or that they leverage, so it's understandable for the public.
o Supports shade structures, that are not having the same appearance throughout the City; Address question about park equity and equal distribution throughout the City.
o Supports golf renovation pond work and minimal repairs to the irrigation system and helping the environment; Supports looking at storm drains and the actual life of the culverts.

ADJOURNMENT
At 6:55 p.m., Mayor Mohan adjourned the Special City Council Meeting.

REGULAR MEETING
At 6:00 p.m., Mayor Sheila Mohan 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 Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

CLOSED SESSION REPORT - None
CEREMONIAL ITEMS – None
POSTPONEMENTS AND ORDERS OF THE DAY – None

ORAL COMMUNICATIONS
Written communications for this item included emails to Council.

The following people spoke:
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Barry Chang discussed the City’s policy on signage displayed at City facilities and pickleball trial use.

Toby Leavett, representing San Francisco Shakespeare Festival, discussed Free Shakespeare in the Park.

Councilmember Kitty Moore (representing self) discussed Item 13 Monthly Treasurer's Investment Report for February 2024. (Submitted written comments).

Rhoda Fry discussed taxable items, a public meeting on Lehigh, City financing, and the BMR (Below Market Rate) Housing Fund.

Louise Saadati discussed City Council meeting procedures.

San R discussed hybrid commission meetings and City Council meetings.

Babu Srinivasan hybrid commission meetings.

Lisa discussed Shakespeare in the Park, hybrid commission meetings, and City Council meeting procedures.

Housing Commissioner Connie Cunningham (representing self) the Rise project and bird safety.

Srividya discussed City Council meeting procedures and pickleball trial use.

Councilmembers asked brief clarifying questions.

CONSENT CALENDAR (Items 1- 7)
Mayor Mohan opened the public comment period and the following people spoke.

San R
Babu Srinivasan
Lisa
Rhoda Fry (Item 1)
Mayor Mohan closed the public comment period.

MOTION: Mohan moved to consider Items 4 and 5 before the Action Calendar. There was no second and the motion was not considered.
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MOTION: Wei moved and Fruen seconded to approve the items on the Consent Calendar except for Items 4 and 5 which were pulled for discussion. The motion carried with the following vote:

Item 1: Ayes: Mohan, Fruen, and Wei. Noes: Moore. Abstain: Chao. Absent: None; and Items 2, 3, 6, and 7: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None.

Absent: None.

Items 4 and 5 were placed after the Action Calendar for consideration per rule.

1. Subject: Second Amendment to the master agreement with Richard Yau to provide program and project management consultant services on various Capital Improvement Programs (CIP) projects, for a not-to-exceed amount of $470,000. (Postponed from March 5, 2024)
Recommended Action: Authorize the City Manager to execute a Second Amendment to the master agreement with Richard Yau to provide program and project management consultant services on various Capital Improvement Programs projects, increasing the contract amount by $300,000 for a new total not-to-exceed contract amount of $470,000 and extending the term of the agreement to June 30, 2027.

2. Subject: Approve the March 4, 2024 City Council Minutes Recommended Action: Approve the March 4, 2024 City Council Minutes

3. Subject: Approve the March 5, 2024 City Council minutes Recommended Action: Approve the March 5, 2024 City Council minutes Written communications for this item included a desk item report and Amended Attachment A – Draft Minutes.

6. Subject: Ratifying Accounts Payable for the periods ending February 2, 2024; February 9, 2024; February 16, 2024; and February 23, 2024
Recommended Action: A. Adopt Resolution No. 24-025 ratifying Accounts Payable for the Period ending February 2, 2024;
B. Adopt Resolution No. 24-026 ratifying Accounts Payable for the Period ending February 9, 2024;
C. Adopt Resolution No. 24-027 ratifying Accounts Payable for the Period ending February 16, 2024; and
D. Adopt Resolution No. 24-028 ratifying Accounts Payable for the Period ending February 23, 2024

7. Subject: 2023 General Plan and Housing Element Annual Progress Report (APR) Recommended Action: Receive the General Plan and Housing Element APRs Written communications for this item included an email to Council. 31 CC 04-03-2024
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PUBLIC HEARINGS – None

ACTION CALENDAR

8. Subject: Review city-owned properties
Recommended Action: Review city-owned properties and provide direction to proceed with exploring rehabilitation and future use of the Stocklmeir site Presenter: Matt Morley, Assistant City Manager
Written communications for this item included a staff presentation, supplemental report with staff responses to councilmember questions and Attachment B – Stocklmeir Property Grant Deed, and emails to Council.

Assistant City Manager Matt Morley gave a presentation.

Councilmembers asked questions and made comments.

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

Janet Van Zoeren, representing Coalition For Democratic Care Services (submitted written comments)
Angela Johnson
Trudy Grable
Eric McKinlay
Brooke Ezzat
Housing Commissioner Connie Cunningham (representing self) San R
Mayor Mohan closed the public comment period.

MOTION: Wei moved and Fruen seconded to approve the staff recommendation to proceed with exploring rehabilitation and future use of the Stocklmeir site and through the City Work Program, to budget $90,000 for the City Owned Properties item. These funds will be utilized for preliminary analysis of the Stocklmeir and Blesch properties.

The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei.

Noes: None. Abstain: None. Absent: None.

At 8:45 p.m., Mayor Mohan recessed the meeting. The meeting reconvened at 8:52 p.m. with all Councilmembers present.
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ITEMS REMOVED FROM THE CONSENT CALENDAR

4. Subject: Revisions to Cupertino City Council Procedures Manual Recommended Action: Adopt Resolution No. 24-024 amending the Cupertino City Council Procedures Manual
Written communications for this item included a desk item report with staff responses to councilmember questions and revised Attachment A - Draft Resolution.

Councilmembers asked questions and made comments.

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

Lisa
San R
Parks and Recreation Commissioner Jennifer Shearin (representing self) Jean Bedord
Louise Saadati
Mayor Mohan closed the public comment period.

MOTION: Chao moved and Moore seconded to reject the proposed revisions. Council did not vote on this motion.

SECOND SUBSTITUTE MOTION: Chao moved and Moore seconded a second substitute motion to approve the staff recommendation to adopt Resolution No. 24-024 amending the Cupertino City Council Procedures Manual, plus posting the informational memos to the city website. The second substitute motion failed with the following vote: Ayes:

Moore. Noes: Mohan, Fruen, Chao, and Wei. Abstain: None. Absent: None.

SUBSTITUTE MOTION: Fruen moved and Wei seconded a substitute motion to approve the staff recommendation adopting Resolution No. 24-024 as revised per the City Attorney's desk item updating the Council Procedures Manual with the following additional revision and direction:

1. Under Section 8.3 (Order of Business), amend the language to remove category 14 entitled "Informational Items," renumber the categories accordingly, and direct the City Manager instead to transmit to Council all items that would ordinarily appear as Informational Items in the form of memos to Council, and to post said memos as they become available on the city website in a readily accessible place to support Council's goal of transparency in government; and

2. Under Section 8.5 (Public Comment), delete the reference to “informational items.” The substitute motion carried with the following vote: Ayes: Mohan, Fruen, and Wei. 33 CC 04-03-2024
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Noes: Chao and Moore. Abstain: None. Absent: None.

5. Subject: Adoption of Ordinance No. 24-2256, to regularize commissioner appointments and revise commissioner qualifications
Recommended Action: Conduct the second reading of and adopt Ordinance No. 24- 2256, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO

REGULARIZE CITY COMMISSION AND COMMITTEE TERMS AND REVISE COMMISSIONER QUALIFICATIONS”
Written communications for this item included a supplemental report with staff responses to councilmember questions.

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

Lisa
San R
Mayor Mohan closed the public comment period.

MOTION: Moore moved and Fruen seconded for the City Clerk to read the title of Ordinance No. 24-2256, that further reading of the Ordinance be waived, and that the City Council conduct the second reading of the Ordinance by title only; and to enact Ordinance No. 24-2256, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

CUPERTINO TO REGULARIZE CITY COMMISSION AND COMMITTEE TERMS AND REVISE COMMISSIONER QUALIFICATIONS.” The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent:

None.

COUNCIL REPORTS AND COMMENTS

9. Subject: Councilmember Reports
Written communications for this item included a desk item report for Councilmember Moore.

Councilmembers reported on their various committees and activities as provided in the published agenda.

CITY MANAGER REPORT - None
ORAL COMMUNICATIONS - CONTINUED – None
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INFORMATIONAL ITEMS

10. Subject: FY 23-25 City work Program Q2 update
Recommended Action: Receive FY 23-25 City work Program Q2 update The information regarding the FY 23-25 City work Program Q2 update was provided as part of the published agenda.

11. Subject: The Rise Development Project (formerly Vallco Town Center) update #2 (Dec 5, 2023 Informational Update follow-up)
Recommended Action: Receive Rise Development Project Update The information regarding the Rise Development Project Update was provided as part of the published agenda.

12. Subject: Receive the Monthly Treasurer's Report for February 2024 Recommended Action: Receive the Monthly Treasurer's Report for February 2024 The information regarding the Monthly Treasurer's Report for February 2024 was provided as part of the published agenda.

13. Subject: Receive the Monthly Treasurer's Investment Report for February 2024 Recommended Action: Receive the Monthly Treasurer's Investment Report for February 2024
The information regarding the Monthly Treasurer's Investment Report for February 2024 was provided as part of the published agenda.

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS
Councilmembers added the following items:
 Study session on banning artificial turf given the environmental concerns (Moore/Mohan).
 Informational item regarding what fertilizers, pesticides, and herbicides the city uses and what sustainable alternative exist (Moore/Fruen)
 Revisit the Greenbiz Cupertino standards with consideration of landscape management (fertilizers, pesticides, herbicides, artificial turf topics) (Moore/Chao)  Review the City’s financial policy and best practices (Moore/Chao)

ADJOURNMENT
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At 10:27 p.m., Mayor Mohan adjourned the Regular City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
23-12457 Agenda Date: 4/3/2024
Agenda #: 5.

Subject: Approve a First Amendment to the contract with PlaceWorks for an increase of $164,520 to prepare Residential and Mixed-Use Residential Objective Design Standards (FY 2020-21 WP Item) for a total not-to-exceed amount of $1,261,277 and associated budget modification That the City Council adopt Resolution No. 24-029 (Attachment A) to:

2. Find that there are valid reasons to waive the competitive procurement procedures for selection of Placeworks;

CITY COUNCIL STAFF REPORT
Meeting: April 3, 2024
Subject
Approve a First Amendment to the contract with PlaceWorks for an increase of $164,520 to prepare Residential and Mixed-Use Residential Objective Design Standards (FY 2020- 21 WP Item) for a total not-to-exceed amount of $1,261,277 and associated budget modification.

Recommended Action
That the City Council adopt Resolution No. _____ (Attachment A) to:

2. Find that there are valid reasons to waive the competitive procurement procedures for selection of Placeworks;

1. Award Professional Contract with PlaceWorks
The City began its Housing Element update process in mid-2021, with staff performing community outreach to inform City decision-makers and residents about the upcoming process. Around the same time, in response to newly adopted State housing legislation, the Council identified the adoption of design standards as a Work Program item for FY 2020-21, with the goal to create objective design standards (ODS) 38 CC 04-03-2024
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for residential and mixed-use residential projects, including ensuring adequate buffers between future higher-density residential and mixed-use development from established residential neighborhoods. After a comprehensive RFP process, on April 6, 2021, the City Council approved a contract with) RRM Design Group (RRM) to prepare the ODS.

Since that time, with staff focusing extensively on the completion of the Housing Element update, and the consultant’s priorities also shifting, work on the Residential and Mixed-Use Residential ODS fell significantly behind schedule and the City decided to terminate its agreement with RRM in October 2023.

Since the termination of the contract, staff has remained aware of the importance getting ODS in place in an environment where the approval of residential development is getting increasingly ministerial in nature. This is also identified as an important policy focus of the Draft Housing Element currently under review by California Department of Housing and Community Development (HCD). The Draft Housing Element, associated zoning and environmental review required by State law are all being prepared by PlaceWorks, which was awarded a contract in March 2023 by the City Council.

PlaceWorks has demonstrated a high degree of expertise successfully managing Housing Element updates throughout California, particularly for the current, more complicated 6th-Cycle update, and has consistently provided high-quality work product for the City on planning and environmental issues in recent years. In addition to this, they have also successfully created and assisted cities in adoption of their design standards for residential and mixed-use residential projects.

PlaceWorks’ familiarity with Cupertino, the Housing Element update process and prior community input in developing zoning regulations, which directly inform the ODS, makes PlaceWorks uniquely qualified to manage this project through to completion. Notably, PlaceWorks has already successfully assisted the cities of Sunnyvale and Daly City in preparation of their ODS. Now that the City is nearing completion of the Housing Element update process, it is vital that the City contract with PlaceWorks to prepare the ODS and have their support for the increase in residential development applications that are anticipated to be received by the City upon adoption of the 6th Cycle Housing Element. It is anticipated that the Housing Element and all associated zoning changes will be presented to the Council for adoption in mid-2024. Staff anticipates that the ODS will be prepared and presented for the Council’s consideration later in 2024.

PlaceWorks scope of services includes the following tasks and deliverables, which are more detailed in the Scope of Work and Fee Estimate (Attachment B):
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 Evaluation of existing City land use documents, development standards and design guidelines;
 Hosting a community meeting to explain what ODS are, why they are important in the current California planning landscape, and how they work in relation with other land use policies and regulations;
 Meetings with stakeholder groups, including residential developers, housing advocates and designers;
 Facilitation of Planning Commission and City Council study sessions;  Preparation of administrative draft and final Residential and Mixed-Use Residential Objective Design Standards (ODS); and
 Attend Planning Commission and City Council adoption meetings.

Considering Placeworks’ experience with the Housing Element update process and developing zoning regulations , in accordance with Municipal Code 3.22.060(B), staff requests that the City Council find that there are valid reasons to waive the competitive procurement procedures for selection of a consultant for preparation of an ODS. Staff also recommends the City Council authorize the City Manager to execute the first amendment to the Services Agreement (Attachment C).

2. Approve Budget Modification #2223-262
The City’s contract with RRM had a budget of $226,757, $80,833.78 of which was expended prior to the termination of their contract, leaving $145,923.22 of their original budget unspent.

At present there is a remaining balance of $194,9221for the Residential and MixedUse Residential Design Standards WP Item, referred to in the FY 2023-24 Budget as “Special Projects CWP Residential/Mixed Use Design GL 100-71-702 750-090).” Since it is recommended that the Housing Element Consultant firm, Placeworks, work on this item, it is recommended that the unspent funds appropriated for the Design Standards WP Item be transferred into the Special Projects CWP RHNA and GP update GL 100-71-702 750-101.

PlaceWorks has submitted a scope of work (Attachment B), including a staff recommended 15% contingency, for a total not-to-exceed of $164,520. To have PlaceWorks complete the tasks identified in this scope of work, an additional $18,596.78 would need to be appropriated to the ODS budget. Staff recommends that this appropriation be rounded to the next closest whole thousand, to $20,000. The Fiscal Impact section, below, discusses additional estimated costs related to legal

1 The New World Financial System allows budget numbers to only be whole numbers. As a result of multiple years of carryovers of this balance, the budget in GL 100-71-702 750-090 is $194,922 and not $194,923.22.
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review and noticing that are included in the budget, both of which do not change the appropriations amount.

Sustainability Impact
No sustainability impact.

Fiscal Impact
The City has a budget of $1,687,116 for the Housing Element as part of the FY 2023-24 Adopted Budget 100-71-702 750-101. With the rollover of GL 100-71-702 750-090 funds into the 750-101 Special Projects account, the budget will increase to $1,882,038. However, the proposal (see Attachment B) and associated project expense estimates exceed the existing project budget; staff therefore requests Budget Modification No. 2324-335 to increase project appropriations in 100-71-702 750-090 by $20,000 to account for the estimated consultant costs and incidentals. No project contingency beyond the 15% contingency included in PlaceWorks scope of work is requested at this time. As noted before, legal review, ads and notices continue to be part of the project budget for the ODS portion of the contract/scope of work.

Table A, below, lists the current remaining project budget and estimated expenses and the differences that will need to be added to the budget to cover estimated costs.

Additional appropriations will be funded from the unassigned fund balance in the General Fund that was estimated at $36.7 million as of the FY 2023-24 Mid-Year Financial Report.

Table A
Total RRM contract $226,757
Total approved budget (100-71-702 750-090)* $275,757
Total expenditure (RRM) $80,833.78
Total remaining from RRM contract $145,923.22
Total remaining in GL 100-71-702 750-090 per New World $194,922 Existing approved budget appropriations in GL 100-71-702 750-101 $1,687,116 Total budget in GL 100-71-702 750-101 after transfer from 750-090 $1,882,038 Placeworks contract First Amendment $164,520
Appropriations Requested ($164,520-$145,923.22 = 18,596.78, rounded to next closest 10,000) $20,000
Total budget in GL 100-71-702 750-101 after appropriations $1,902,038 * Includes Estimated legal review, newspaper legal ads, postcard and postage costs for Design Standards CWP Item: $49,000
Generally, transfers between GL accounts within the same fund do not come to City Council for approval. However, City Council approval is requested for this transfer 41 CC 04-03-2024
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because it involves changes to two City Work Program projects, in conjunction with a request for an increase in the budget for the project.

California Environmental Quality Act
CEQA review, as required by state law, will be completed prior to the adoption of the design standards.

Prepared by: Piu Ghosh, Planning Manager
Luke Connolly, Assistant Director of Community Development Benjamin Fu, Director of Community Development
Reviewed by: Christopher Jensen, City Attorney
Approved by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution
B – Scope of Work, Fee Estimates and Timeline
C – Draft First Amendment to Service Agreement
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RESOLUTION NO. ________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING A FIRST AMENDMENT WITH PLACEWORKS AND
APPROVING BUDGET MODIFICATION #2324-335 FOR DEVELOPING

RESIDENTIAL AND MIXED-USE RESIDENTIAL DESIGN STANDARDS
FOR THE FISCAL YEAR 2020-21 WORK PROGRAM.
________________________________________________________________________ ____________________________________________________________________ WHEREAS, on March 31, 2020, the Council approved Residential and Mixed-Use Residential Design Standards as a Work Program item for the FY 20- 21 and authorized $200,000 from the FY 20-21 General Fund for project consultant, environmental review, and outreach with the project objective to create objective design standards for residential and mixed-use residential projects; and WHEREAS, on April 6, 2021, the City authorized the City Manager to enter into a contract with RRM Design Group for preparation of Residential and MixedUse Design Standards; and WHEREAS, in October 2023, the staff decided to terminate the existing contract with RRM due to shifting priorities and how far behind schedule the project had fallen; and
WHEREAS, staff is recommending that the Council award the City’s existing Housing Element consultant, Placeworks, a contract amendment to prepare the Residential and Mixed-Use Residential Design Standards Work Program item for the FY 20-21; and
WHEREAS, staff is recommending that Council authorize the City Manager to execute the first amendment to the existing agreement with Placeworks to provide services to the City for the preparation of residential and mixed-use design standards for the Council’s consideration, for an amount not to exceed $164,520; and
WHEREAS, staff is requesting Budget Modification #2324-335 to transfer the existing appropriations in 100-71-702 750-090 into 100-71-702 750-101 and to increase project appropriations in 100-71-702 750-101 by $20,000 for the FY 24-25; and
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby 43 CC 04-03-2024
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Resolution No. __________________

Page 2 ends

1. Authorize the City Manager to execute a first amendment to the existing consultant agreement with PlaceWorks to prepare the Residential and MixedUse Residential Objective Design Standards, increasing the contract amount by $164,520 for a new total not-to-exceed contract amount of $1,261,277;

2. Find that there are valid reasons to waive the competitive procurement procedures for selection of Placeworks;

3. Approve Budget Modification #2324-335 to:
a. Transfer existing appropriations in Special Projects CWP Residential/Mixed-Use Design GL 100-71-702 750-090 to Special Project CWP RHNA and GP update GL 100-71-702 750-101
b. Increase the appropriations in Special Projects CWP RHNA and GP update GL 100-71-702 750-101 by $20,000 for the Residential and Mixed-Use Residential Design Standards, all necessary environmental review and incidentals for the fiscal year 2023-24
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, the proposed action of amending the existing agreement and the budget modification would have no or only a de minimis effect on the environment because there are no physical improvements or development proposed with these actions. 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 3
rd day of April, 2024, by the following vote:

Members of the City Council
AYES:
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Resolution No. __________________

Page 2 ends

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Shiela Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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PLACEWORKS PROPOSED SCOPE FOR OBJECTIVE DESIGN STANDARDS  1

CITY OF CUPERTINO

PLACEWORKS PROPOSED SCOPE

FOR CUPERTINO OBJECTIVE DESIGN

STANDARDS
This document describes the scope of services to be completed by PlaceWorks to produce Objective Design Standards for the City of Cupertino. We are flexible regarding the tasks and recognize that it may be necessary to alter the scope as the project progresses per your direction to ensure the successful completion of the project.

Project Kick-Off and Management
PlaceWorks will prepare for and attend a virtual kick-off meeting with City staff to initiate the Objective Design Standards project. Agenda items will include:
 Project goals, expectations, and process
 Review scope, schedule, and budget
 Confirm management and communication protocols
This task also covers ongoing project management responsibilities, including regular and collaborative discussions with Planning staff, internal team coordination, invoice review and submittal, budget tracking, organizing meetings, tracking project progress, project scheduling, and identifying forthcoming issues and deadlines.

Task A deliverables
• Summary notes from all PlaceWorks/City staff meetings Document Review and Issue Identification
The PlaceWorks team will evaluate existing City design guidelines and other relevant City documents to fully understand the City’s approach to multifamily and mixed-use housing design. We will record design themes and priorities in order to capture Cupertino’s design approach to the highest degree possible. We will review and assess each of the following:
 City staff summary of issues, including townhome and mixed-use development  Cupertino General Plan
 Cupertino Municipal Code, Title 19 – Zoning
 Specific Plans
• Heart of the City (2014)
• South Vallco (2008)
• Monte Vista (1978, including Design Guidelines)
 Concept Plans
• South Vallco Connectivity (2014)
• South De Anza Boulevard (1985)
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2  Proposed Scope FEBRUARY 2024
• South Saratoga Sunnyvale Road (1981)
• North De Anza Boulevard (1976)
Any potential conflicts between these documents and objective design standards will be recorded in an Issue Identification Memo and then addressed in Task F, Administrative Draft Standards. City staff will provide comments on a draft of the memo, and then a final version will be produced.

In addition, PlaceWorks will facilitate a discussion with City staff to establish needs and potential approaches to developing landscape design standards. We will discuss:
• the extent of detail desired by the City;
• the type of information to be included; and
• target areas.

Task B deliverables
• Draft and Final Issue Identification Memo (including a summary of the need for objective design standards)
Community Meeting
PlaceWorks will work with City staff to host a public community meeting for the Objective Design Standards project. The meeting will consist of an in-person open house and a 2- hour online complement.

The goals of the public meeting will be to educate community members about objective design standards and the project, and to solicit input on multifamily housing and mixeduse design preferences. To accomplish this, the meeting is proposed as follows:
 ODS Overview. PlaceWorks, working with City staff, will provide an overview of the project and present background and goals of Objective Design Standards for the City.
 ODS Insights and Process. We will build from public input obtained to date through the 6th Cycle Housing Element update and use examples of built projects to highlight:
• definitions and examples of objective standards;
• the connection between objective standards and State housing law; • the objective standards development process; and
• that objective standards can both ensure compliance with recent legislation and produce high quality design and amenities.

Potential approaches to the open house include asking participants to rank existing development projects to collect quantifiable feedback regarding overall aesthetic and specific design components, and/or separating design preference discussions by target areas of the City.

PlaceWorks will prepare noticing materials, meeting presentation, and content for the meeting, as well as a summary of community input. We will work with City staff to identify translation and logistical needs and plan for translation of materials and live translation, as needed. We will also set up and launch the online complements.

Task C deliverables
• Draft and final materials and summary memo for the community meeting 47 CC 04-03-2024
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PLACEWORKS PROPOSED SCOPE FOR OBJECTIVE DESIGN STANDARDS  3

CITY OF CUPERTINO
Stakeholder Engagement
PlaceWorks will work with City staff to facilitate two 2-hour virtual meetings with two sets of interest groups potentially impacted by objective multifamily design standards and the effects on housing review and approval. PlaceWorks assumes that City staff will select the list of developers and stakeholders to reach out to. PlaceWorks will help prepare meeting materials, assist in the conversations, and capture discussion points in notes. Potential stakeholders could include:
 Local Developers and Housing Advocates. Following City staff approval, PlaceWorks will assist in engaging the local development community in a conversation about potential impacts to housing project feasibility and implementation. We will record concerns, relevant experiences, and specific examples of project implementation following adoption of objective standards.
 Designers and Architects. Following City staff approval, PlaceWorks will assist in engaging local architects and designers to assess concerns and collect input regarding the relationship of objective standards and design feasibility.

Task D deliverables
• Draft and final materials and summary memos for stakeholder meetings Planning Commission and City Council Study Sessions
PlaceWorks will work with City staff to facilitate Planning Commission and City Council Study Sessions in which we present the major themes, opportunities, and critical issues resulting from community input to date. We will present a series of potential approaches for discussion and solicit feedback and direction from City officials. This feedback will be integrated into Task F, Administrative Draft Standards.

Task E deliverables
• Draft and final Commission and Council Study Session meeting materials and summaries
Administrative Draft Standards
The PlaceWorks team will produce Administrative Draft Objective Design Standards for multifamily and mixed-use development and landscape design, including explanatory narratives, conceptual diagrams, elevations, plans, sections, axonometric views, and other illustration formats that will best communicate the standards for users and City development reviewers.

We will submit the Administrative Draft Objective Design Standards to City staff and will incorporate one round of consolidated comments after review is complete.

Task F deliverables
• Draft Standards Outline
• Administrative Draft Citywide Objective Design Standards 48 CC 04-03-2024
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4  Proposed Scope FEBRUARY 2024
City Staff Survey
PlaceWorks will develop an electronic survey of City staff to be paired with the Administrative Draft Standards. The survey will be used to assess how well the draft standards integrate into existing city regulations and the functionality of the standards. We will work with the City to identify recipients across multiple departments, including:
• Planning
• Building
• Housing
• Code Enforcement
• Public Works
• Environmental Services
The survey will be concise and targeted, with questions regarding, but not limited to:
• The value of introductory and background information
• The clarity of the ministerial design review process
• Identification of important design topics that aren’t covered by the standards
• Identification of standards that conflict, or are redundant with, other city regulations.

Task G deliverables
• Draft e-survey
• Final e-survey
• Survey summary memo and recommended draft ODS revisions Public Draft Standards
PlaceWorks will incorporate City comments and revisions to the Administrative Draft document and results of the staff survey to produce the Public Draft Objective Design Standards. This draft will be made available for review by the Cupertino community prior to the Planning Commission and City Council review.

Task G deliverable
• Public Drafts of Objective and Landscape Design Standards Hearings and Final Standards
PlaceWorks staff will attend a Planning Commission meeting to present the Public Draft Objective Design Standards and solicit feedback and direction for finalizing the Standards.

PlaceWorks will prepare a presentation of the shift from subjective to objective Standards for a series of major design components. We will develop other meeting materials and submit a Summary Memo of feedback received.

PlaceWorks will incorporate Planning Commission direction into Final Objective and Landscape Design Standards and present those to the City Council and identify and seek Council approval for any actions needed to achieve consistency with Title 19 of the municipal code and/or the General Plan. The PlaceWorks team will then make any Councildirected changes necessary to publish the final adopted Objective Design Standards. 49 CC 04-03-2024
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PLACEWORKS PROPOSED SCOPE FOR OBJECTIVE DESIGN STANDARDS  5

CITY OF CUPERTINO
Task H deliverables
• Planning Commission materials and summary
• Council materials
• Final Objective Design Standards
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PlaceWorks
City of Cupertino Objective Design Guidelines for Housing Development

COST PROPOSAL
Charlie Knox Greg
Goodfellow
Bruce
Brubaker Sara Sutton Erina Shimanuki
Erika
Lindstrom
Spence
Koehler
Principal-InChargeProject
Manager
Design
Advisor
Landscape
Advisor
Urban
Designer Associate Landscape
Designer

GRAPHICS /

EDITING
Hourly Rate $275 $220 $265 $250 $155 $185 $155 $140

PROJECT TASKS
A Project Kick-Off and Management 16 40 8 16 4 84 $360 $18,380 B Document Review and Issue Identification 4 24 4 4 24 8 8 76 $298 $15,178 C Community Meetings 4 12 14 14 6 50 $189 $9,619
D Stakeholder Engagement 8 16 16 16 56 $223 $11,383
E Planning Commission and City Council Study Sessions 16 16 16 48 $218 $11,098 F Administrative Draft Standards 16 48 2 2 56 56 56 16 252 $919 $46,869 H City Staff Survey 6 12 8 6 2 34 $138 $7,058
I Public Draft Standards 16 24 2 2 40 40 24 16 164 $605 $30,875 J Hearings and Final Standards 16 16 8 8 8 8 64 $260 $13,260 Total Hours 102 208 8 8 174 180 106 42 828
Total $28,050 $45,760 $2,120 $2,000 $26,970 $33,300 $16,430 $5,880 $3,210 $163,720

EXPENSES
Travel $800
GRAND TOTAL $164,520

PLACEWORKS
Task
Hours Task Total
2% Markup
for Office
Expenses
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Tasks Time April 2024 May 2024 June 2024 July 2024 August 2024 September 2024 October 2024 November 2024 Weeks 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 A. Project Kick-Off and Management ongoing
B. Document Review and Issue Identification 3 weeks
C. Community Meeting 5 weeks *
D. Stakeholder Engagement 5 weeks * *
E. Planning Commission and City Council Study Sessions 5 weeks * * F. Administrative Draft Standards 12 weeks
G. City Staff Survey 3 weeks
H. Public Draft Standards 4 weeks
I. Hearings and Final Standards 4 weeks * *
Legend
PlaceWorks Team
City Review Period
Public Review Period
Public Hearing/Meeting *
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1 FIRST AMENDMENT TO AGREEMENT 674 BETWEEN

THE CITY OF CUPERTINO AND PLACEWORKS, INC

FOR GENERAL PLAN UPDATE
This First Amendment to Agreement 674 between the City of Cupertino and PLACEWORKS, INC is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and PLACEWORKS, INC, a Corporation (“Contractor”) whose address is3 MACARTHUR PL STE 1100, , SANTA ANA, CA 92707, and is made with reference to the following:

RECITALS:

A. On March 09, 2023 Agreement 674 (“Agreement”) was entered into by and between City and Contractor for General Plan Update.

B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:

1. Paragraph 2 of the Agreement is modified to read as follows:

Contractor agrees to provide the services and perform the tasks (“Services”) set forth in detail in Scope of Services, attached here and incorporated as Exhibit A-1. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19.

2. Exhibit A to the Agreement is replaced with Exhibit A-1, attached hereto.

3. Paragraph 3 of the Agreement is modified to read as follows:

3.1 This Agreement begins on the Effective Date and ends on June 30, 2024 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by June 30, 2024. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy.

3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated herein as Exhibit B-1.

4. Paragraph 4 of the Agreement is modified to read as follows:

4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $1,261,277 (Contract Price), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit A, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if 53 CC 04-03-2024
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2 Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City.

5. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.

SIGNATURES CONTINUE ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date
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3 PLACEWORKS, INC
By
Title
Date

EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base - $1,096,757.00
1st Amendment $164,520.00
Total $1,261,277.00
1429656.1
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PLACEWORKS PROPOSED SCOPE FOR OBJECTIVE DESIGN STANDARDS  1

CITY OF CUPERTINO

PLACEWORKS PROPOSED SCOPE

FOR CUPERTINO OBJECTIVE DESIGN

Task A deliverables
• Summary notes from all PlaceWorks/City staff meetings Document Review and Issue Identification
The PlaceWorks team will evaluate existing City design guidelines and other relevant City documents to fully understand the City’s approach to multifamily and mixed-use housing design. We will record design themes and priorities in order to capture Cupertino’s design approach to the highest degree possible. We will review and assess each of the following:
 City staff summary of issues, including townhome and mixed-use development  Cupertino General Plan
 Cupertino Municipal Code, Title 19 – Zoning
 Specific Plans
• Heart of the City (2014)
• South Vallco (2008)
• Monte Vista (1978, including Design Guidelines)
 Concept Plans
• South Vallco Connectivity (2014)
• South De Anza Boulevard (1985)
Attachment A-1
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2  Proposed Scope FEBRUARY 2024
• South Saratoga Sunnyvale Road (1981)
• North De Anza Boulevard (1976)
Any potential conflicts between these documents and objective design standards will be recorded in an Issue Identification Memo and then addressed in Task F, Administrative Draft Standards. City staff will provide comments on a draft of the memo, and then a final version will be produced.

Task C deliverables
• Draft and final materials and summary memo for the community meeting 57 CC 04-03-2024
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PLACEWORKS PROPOSED SCOPE FOR OBJECTIVE DESIGN STANDARDS  3

We will submit the Administrative Draft Objective Design Standards to City staff and will incorporate one round of consolidated comments after review is complete.

Task F deliverables
• Draft Standards Outline
• Administrative Draft Citywide Objective Design Standards 58 CC 04-03-2024
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4  Proposed Scope FEBRUARY 2024
City Staff Survey
PlaceWorks will develop an electronic survey of City staff to be paired with the Administrative Draft Standards. The survey will be used to assess how well the draft standards integrate into existing city regulations and the functionality of the standards. We will work with the City to identify recipients across multiple departments, including:
• Planning
• Building
• Housing
• Code Enforcement
• Public Works
• Environmental Services
The survey will be concise and targeted, with questions regarding, but not limited to:
• The value of introductory and background information
• The clarity of the ministerial design review process
• Identification of important design topics that aren’t covered by the standards
• Identification of standards that conflict, or are redundant with, other city regulations.

PlaceWorks will incorporate Planning Commission direction into Final Objective and Landscape Design Standards and present those to the City Council and identify and seek Council approval for any actions needed to achieve consistency with Title 19 of the municipal code and/or the General Plan. The PlaceWorks team will then make any Councildirected changes necessary to publish the final adopted Objective Design Standards. 59 CC 04-03-2024
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PLACEWORKS PROPOSED SCOPE FOR OBJECTIVE DESIGN STANDARDS  5

CITY OF CUPERTINO
Task H deliverables
• Planning Commission materials and summary
• Council materials
• Final Objective Design Standards
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PlaceWorks
City of Cupertino Objective Design Guidelines for Housing Development

GRAPHICS /

EDITING
Hourly Rate $275 $220 $265 $250 $155 $185 $155 $140

EXPENSES
Travel $800
GRAND TOTAL $164,520

PLACEWORKS
Task
Hours Task Total
2% Markup
for Office
Expenses
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Tasks Time April 2024 May 2024 June 2024 July 2024 August 2024 September 2024 October 2024 November 2024 Weeks 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 A. Project Kick-Off and Management ongoing
B. Document Review and Issue Identification 3 weeks
C. Community Meeting 5 weeks *
D. Stakeholder Engagement 5 weeks * *
E. Planning Commission and City Council Study Sessions 5 weeks * * F. Administrative Draft Standards 12 weeks
G. City Staff Survey 3 weeks
H. Public Draft Standards 4 weeks
I. Hearings and Final Standards 4 weeks * *
Legend
PlaceWorks Team
City Review Period
Public Review Period
Public Hearing/Meeting *
Attachment B-1
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CITY OF CUPERTINO
Agenda Item
23-12828 Agenda Date: 4/3/2024
Agenda #: 6.

Subject: Amendments to Municipal Code Chapter 5.50 (Regulating the Sale of Tobacco Products) and to the Memorandum of Understanding (“MOU”) with the County of Santa Clara to enforce Chapter 5.50

1. Conduct a first reading of and introduce Ordinance No. 24-2257, entitled “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS”

CITY COUNCIL STAFF REPORT
Meeting: April 3, 2024
Subject
Amendments to Municipal Code Chapter 5.50 (Regulating the Sale of Tobacco Products) and to the Memorandum of Understanding (“MOU”) with the County of Santa Clara to enforce Chapter 5.50
Recommended Action

1. Conduct a first reading of and introduce Ordinance No. 24-_____, entitled “AN

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS”

2. Authorize the City Manager to amend the Memorandum of Understanding (“MOU”) with the County of Santa Clara to administer, implement, and enforce Municipal Code Chapter 5.50 (Tobacco Retailer Permit Ordinance) Reasons for Recommendation
Background
Chapter 5.50 of the Cupertino Municipal Code imposes permit requirements on retailers selling tobacco products in the City and includes provisions for compliance monitoring and enforcement. Since 2020, the Santa Clara County Department of Environmental Health (“DEH”) has enforced these Municipal Code requirements under a Memorandum of Understanding (“MOU”) with the City, at no cost to the City. As a condition of continuing to enforce the City Ordinance, DEH requires that the City Ordinance substantially conform to the Santa Clara County ordinance governing the retail sale of tobacco products. On October 1, 2023, the City Council voted to adopt Ordinance No. 23- 2251, which incorporated certain revisions required to address DEH requirements, such as, increasing penalties for retailers in violation of the ordinance. Subsequent to the adoption, the County identified further revisions required to ensure continued County enforcement of the City Ordinance.

Proposed Amendments to Retail Tobacco Ordinance
As requested by County DEH, Draft Ordinance No. 24-____ (Attachment A) proposes revisions to Municipal Code Chapter 5.50 that are required to ensure continued County 64 CC 04-03-2024
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enforcement of the City Retail Tobacco Ordinance. A redline comparing the proposed Ordinance to the currently effective provisions of Chapter 5.50 is provided as Attachment B. The proposed Ordinance would strengthen the enforcement provisions available to DEH staff, including increased penalties and fines, and includes amendments for clarity and consistency. In addition, the proposed Ordinance incorporates appeals procedures that would allow the County to continue to administer the process for appealing penalties imposed under the Ordinance on behalf of the City. Staff has notified all tobacco retailers in Cupertino of these proposed changes with a letter (Attachment C) sent via email and through traditional mail.

Staff recommends that Council conduct the first reading and introduce the proposed Ordinance to allow for continued DEH enforcement of City regulations on the retail of tobacco at no cost to the City. If Council votes to introduce the Ordinance, staff anticipates placing the Ordinance on the April 16 agenda for a second reading.

Amendments to County-City MOU
As noted above, DEH enforces the City of Cupertino Retail Tobacco Ordinance pursuant to an existing MOU between the City and Santa Clara County. In order for DEH to continue administering and enforcing these new proposed regulations at no cost to the City, staff recommends that Council authorizes the City Manager to amend the MOU (Attachment D) to align with Ordinance No. 23-2251 and Ordinance No. 24-___. A redline comparing the original agreement with the proposed amendments is provided as Attachment E.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Astrid Robles, Senior Management Analyst
Christopher D. Jensen, City Attorney
Reviewed by: Tina Kapoor, Deputy City Manager
Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Ordinance No. 24-___ (Amending Municipal Code Chapter 5.50) B – Draft Ordinance No. 24-___ (redline)
C – Letter to Tobacco Retailers
D – Amended Memorandum of Understanding (Clean)
E – Amended Memorandum of Understanding (Redline)
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ORDINANCE NO. __________________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND

REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS
The City Council of the City of Cupertino finds that:

1. Electronic cigarettes, also known as e-cigarettes, e-vaporizers, or electronic nicotine delivery systems, are battery-operated devices that people use to inhale an aerosol that typically contains nicotine. In addition to nicotine, the aerosol from e-cigarettes may include up to 31 other components, including formaldehyde, acetaldehyde, glycidol, acrolein, acetol, and diacetyl. Several of these compounds are likely carcinogens, and acrolein is a powerful irritant. (See 2016 Surgeon General’s Report: E-Cigarette Use Among Youth and Young Adults, Centers for Disease Control and Prevention (2016),
https://www.cdc.gov./tobacco/data_statistics/sgr/e-cigarettes/index.htm). These products can resemble traditional tobacco cigarettes (cig-a-likes), cigars, or pipes, or even everyday items like pens or USB memory sticks. (See Vaping Devices (Electronic Cigarettes), National Institute for Drug Abuse (2020), https://www.drugabuse.gov/publications/drugfacts/vaping-devices-electroniccigarettes). The pervasive use of these and other related electronic cigarette products has given rise to a massive and multifaceted public health crisis. In addition, the Surgeon General has declared the use of e-cigarettes among youth an “epidemic.” Nearly 1 in 3 Santa Clara County teens—31.6 percent—report that they have used an e-cigarette at least once. (See Zhu S-H, et al., Tobacco use among high school students in Santa Clara County: Findings from the 2017-18 California Student Tobacco Survey, Center for Research and Intervention in Tobacco Control (2019)).

2. The City Council of the City of Cupertino held a duly noticed public hearing on February 4th, 2020, and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof.
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NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:

SECTION 1. Adoption.

The Cupertino Municipal Code is hereby amended as set forth in Attachment A.

SECTION 2. Severability and Continuity.

The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause, and phrase of this ordinance is severable and independent of every other section, sub-section, paragraph, sub-paragraph, sentence, clause, and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of such portion, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated.

SECTION 3. Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.

SECTION 5. Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

Pursuant to Government Code Section 36933, a summary of this Ordinance may be prepared by the City Clerk and published in lieu of publication of the entire text. The City Clerk shall post in the office of the City Clerk a certified copy of the full text of the Ordinance listing the names of the City Council members voting for and against the ordinance.

INTRODUCED at a special meeting of the Cupertino City Council on April 3, 2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16, 2024 by the following vote:
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Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
__________________
Shelia Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
APPROVED AS TO FORM:
__________________________
Christopher D. Jensen, City Attorney
________________________
Date
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Attachment A – An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 of Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products
The sections of the Cupertino Municipal Code set forth below are amended or adopted as follows:

Text added to existing provisions is shown in bold double-underlined text (example) and text to be deleted in shown in strikethrough (example). Text in existing provisions is not amended or readopted by this Ordinance. Text in italics is explanatory and is not an amendment to the Code.

Where the explanatory text indicates that a new section is being added to the City Code, the new section is shown in plain text.

This ordinance amends several portions of the Municipal Code. For ease of review, the amendments advancing the primary objective are presented first followed by conforming amendments. There is a separate heading in bold italics for each portion of the Code being amended. Each portion is shown beginning on a separate page.

1. Chapter 5.50 of Title 5 is amended as follows:

5.50.010 Intent.

A. This Chapter is adopted to:

1. Ensure compliance with the business standards and practices of the City;

2. Encourage responsible retailing of Tobacco Products;

3. Prevent violations of laws related to Tobacco Products, especially those that prohibit or discourage the sale or distribution of Tobacco Products and Electronic Cigarette Products to individuals under twenty-one;

4. Respond to a new wave of addiction to Electronic Cigarette Products;

5. Reduce vulnerability to unexplained illnesses associated with Electronic Cigarette Products; and

6. Protect the public health and welfare.
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B. This Chapter does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws.

5.50.020 Definitions.

For the purposes of this Chapter, the following definitions shall apply:

A. “Arm's length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two or more informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a purpose is avoiding the effect of the violations of this Chapter is not an arm's length transaction.

B. “Department” means the County of Santa Clara’s Department of Environmental Health and any agency or person designated by the Director of the Department of Environmental Health to enforce or administer the provisions of this Chapter.

C. “Distribute or Distribution” means the transfer, by any person other than a common carrier, of a Tobacco Product to another person for sale or personal consumption.

D. “Electronic Cigarette Products” means any of the following products:

1. Any device or delivery system that can be used to deliver nicotine in aerosolized or vaporized form, including, but not limited to, an e-cigarette, ecigar, e-pipe, vape pen, or e-hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.

3. Any flavored or unflavored liquid or substance containing nicotine, whether sold separately or sold in combination with any device or delivery system that could be used to deliver nicotine in aerosolized or vaporized form.

4. Any product for use in an electronic nicotine device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.

5. Electronic Cigarette Products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold 70 CC 04-03-2024
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separately. Electronic Cigarette Products shall not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where that product is marketed and sold solely for such approved use. See 21 U.S.C. § 387(a). As used in this paragraph, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

E. “Hearing Officer” means the hearing officer appointed by the Department in accordance with County of Santa Clara Ordinance Code (“County Ordinance Code”) section A38-2.

F. “Impound” means the legal control exercised by the Department over the use, sale, disposal, or removal of any Tobacco Products.

G. “Ownership” means possession of a ten percent or greater interest in the stock, assets, or income of a business, other than a security interest for the repayment of debt. Notwithstanding any other definition in this code, an owner means a person who possesses ownership.

H. “Permit” means a valid permit issued by the Department to a person to act as a retailer.

I. “Retailer” means any person who sells, exchanges, offers to sell or exchange, or distributes Tobacco Products for any form of consideration, whether or not they possess a current Permit. “Retailing” shall mean the doing of any of these actions.

This definition is without regard to the quantity of Tobacco Products sold, exchanged, distributed, or offered for sale or exchange.

J. “School” means a public or private elementary, middle, junior high, or high school.

K. “Sale and sold” includes any sale, exchange, barter, or offer for sale.

L. “Tobacco Product” means (unless specifically noted elsewhere) any product subject to Subchapter IX (21 U.S.C. § 387 et seq. (“Subchapter IX”)) of the Federal Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b) (products subject to Subchapter IX); 21 C.F.R. §§ 1100.1- 1100.3 (tobacco products subject to Subchapter IX)) and Electronic Cigarette Products. Products subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, roll-yourown tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco.

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of tobacco products, such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a tobacco product.

5.50.030. Requirements and prohibitions.

A. Permit required. It shall be unlawful for any Person to act as a Retailer without first obtaining and maintaining a Permit pursuant to this Chapter for each location at which Retailing occurs.

B. Lawful business operation. It shall be a violation of this Chapter for any retailer to violate any local, state, or federal law applicable to tobacco products or the retailing of such Tobacco Products.

C. Display of Permit. Each Permit shall be prominently displayed in a publicly visible place at the location identified in the Permit.

D. Notice of minimum age for purchase of Tobacco Products. Retailers shall post conspicuously, at each point of purchase, a notice stating that selling Tobacco Products to anyone under twenty-one years of age is illegal and subject to penalties. Such notice shall be subject to the approval of the Department.

E. Positive identification required. No retailer shall sell or distribute a Tobacco Product to another individual without first examining the individual's identification to confirm that the individual is at least the minimum age required under State law to purchase and possess the Tobacco Product.

F. Minimum age for individuals selling Tobacco Products. No individual who is younger than the minimum age established by state law for the purchase or possession of Tobacco Products shall engage in retailing.

G. False and misleading advertising prohibited. A retailer without a Permit:

1. Shall keep all Tobacco Products out of public view.

2. Shall not display any advertisement relating to Tobacco Products that promotes the Sale or Distribution of such products from the Retailer's location or that could lead a reasonable consumer to believe that Tobacco Products can be obtained at that location.
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H. Limitation on storefront advertising. No more than fifteen percent of the square footage of the windows and clear doors of a physical storefront used for Retailing Tobacco Products shall bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises. However, this latter requirement of this paragraph shall not apply to an establishment where there are no windows or clear doors, or where existing windows are located only at a height that precludes a view of the interior of the premises by an individual standing outside the premises.

I. Flavored Tobacco Products.

1. No Retailer shall sell a Tobacco Product containing, as a constituent or additive, an artificial or natural flavor or aroma (other than tobacco ) or an herb or spice, including but not limited to strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, mint, menthol, or coffee, that is a characterizing flavor or aroma of the Tobacco Product, smoke or vapor produced by the Tobacco Product.

2. A Tobacco Product shall be subject to a rebuttable presumption that the product is prohibited by subparagraph (1) of this paragraph if:
a. The product's manufacturer or any other person associated with the manufacture or sale of Tobacco Products makes or disseminates public statements or claims to the effect that the product has or produces a characterizing flavor or aroma, other than tobacco; or
b. The product's label, labeling, or packaging includes a statement or claim— including any text and/or images used to communicate information—that the product has or produces a characterizing flavor or aroma, other than tobacco.

J. Vending machines prohibited. No Tobacco Product shall be Sold or Distributed to the public from a vending machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.
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K. Prohibition on Sale or Distribution of Tobacco Products to individuals under twenty-one. No Retailer shall Sell or Distribute any Tobacco Product to any individual who is under twenty-one years of age.

L. Prohibition on Sale or Distribution of Electronic Cigarette Products. No person, whether or not issued a Permit, shall Sell or Distribute Electronic Cigarette Products.

5.50.040. Eligibility requirements for a Permit.

A. No Permit may be issued to authorize Retailing at or from other than a fixed location. For example, Retailing by persons on foot or from vehicles is prohibited.

B. No Permit may be issued to authorize Retailing at a temporary or recurring temporary event. For example, Retailing at flea markets and farmers' markets is prohibited.

C. No Permit may be issued to authorize Retailing at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State in accordance with the Business and Professions Code and where prescription drugs are offered for sale.

D. No Permit may be issued to authorize Retailing at any location within one thousand feet of a School, as measured by a straight line between any point along the property line of any parcel on which a School is located and any point along the perimeter of the Permit applicant's proposed business location; provided, however, that the prohibition contained in this paragraph shall not apply to the following:

1. Any Retailer of tobacco products (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B);

2. Any Retailer of electronic smoking devices (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B); however, any such Retailer is subject to the prohibition on the Sale and Distribution of Electronic Cigarette Products established in Section 5.50.030; and
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3. Any lawfully operating Retailer of Tobacco Products that would otherwise become ineligible to receive or renew a Permit due to the creation or relocation of a school.

E. No Permit may be issued to authorize Retailing at a location which is within five hundred feet of a location occupied by another Retailer, as measured by a straight line between any point along the perimeter of an existing Retailer’s business location and any point along the perimeter of the Permit applicant's proposed business location; provided, however, that the prohibition contained in this paragraph shall not apply to:

2. Any Retailer of electronic smoking devices (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renewed its Permit pursuant to 5.50.070(B); however, any such Retailer is subject to the prohibition on the Sale and Distribution of Electronic Cigarette Products established in Section 5.50.030.

F. Any exemption granted to a Retailer pursuant to this Chapter shall cease to apply upon the earlier of the following to occur:

1. The Retailer fails to timely renew the Permit pursuant to this Chapter.

2. A new Person obtains ownership in the business.

5.50.050 Application procedure.

A. It is the responsibility of each Retailer to be informed of all laws applicable to Retailing, including those laws affecting the issuance of a Permit. No Retailer may rely on the issuance of a Permit as a determination by the City or the County of Santa Clara that the Retailer has complied with all laws applicable to Retailing. A Permit issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information supplied by a Retailer shall be revoked pursuant to this Chapter.
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B. All Permit applications shall be submitted on a form supplied by the Department.

C. A permitted retailer shall inform the Department in writing of any change in the information submitted on an application for a Permit within fourteen calendar days of a change.

D. All information included in an application pursuant to this Chapter shall be subject to disclosure under the California Public Records Act (Government Code Section 6250 et seq.) or any other applicable law, subject to the laws’ exemptions.

5.50.060 Permit issuance, denial, and revocation.

A. Upon the receipt of a complete application for a Permit, the application fee, and the annual Permit fee, the Department shall issue a Permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false.

2. The application seeks authorization for Retailing at a location for which this Chapter prohibits issuance of a Permit.

3. The application seeks authorization for Retailing by a Person to whom this Chapter prohibits issuance of a Permit.

4. The application seeks authorization for a Retailer whose Permit has previously been revoked or who has otherwise violated any provision of this Chapter within the last 60 months.

5. The application seeks authorization for Retailing that is prohibited pursuant to this Chapter (e.g., mobile vending, Electronic Cigarette Products) or that is unlawful pursuant to any other law.

6. The application seeks authorization for Retailing by a Retailer who has failed to pay any fees, penalties, or reinspection fees required by this Chapter.

B. A Permit shall be revoked if the Department finds that one or more of the bases for denial of a Permit under this Chapter existed at the time application was made or at any time before the Permit was issued. Such a revocation shall be without prejudice to the filing of a new Permit application.

C. A Permit shall be permanently revoked if the Retailer has committed violations as specified in Section 5.50.130.
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5.50.070 Permit term, conditions, renewal, and expiration.

A. Term of Permit. The term of a Permit is one year. A Permit is invalid upon expiration.

B. Conditions of Permit. As conditions of Permit issuance and retention, Retailer shall:

1. Allow compliance inspections as described in this Chapter and expressly consent to inspection of all areas and records of Retailer’s business required to effectuate the purpose of this Chapter, including unlocking and allowing access to any area of Retailer’s business requested by any individual authorized to monitor and facilitate compliance with this Chapter.

2. Comply with any order of the Department to impound any product not authorized to be sold by this Chapter and cooperate with any Departmental seizure of any product, subject to appeal of those actions.

3. Failure to comply with these permit conditions may result in Permit suspension or revocation as described in Section 5.50.130.

C. Renewal of Permit. The Department shall renew a Permit upon timely payment of the annual Permit fee provided that the Retailer complies with this Chapter, as amended. The Department may, in its discretion, agree to renew any expired Permit within the three-month period following expiration if the Retailer pays the annual Permit fee and applicable late charges. For every calendar month, or fraction thereof, that a Retailer fails to renew an expired Permit, a late charge equal to twenty percent of the annual Permit fee shall be assessed. A Permit renewed within three calendar months of expiration shall be treated as if timely renewed.

D. Issuance of Permit after revocation or expiration of Permit. To apply for a new Permit more than three calendar months after expiration of a Permit or following revocation of a Permit that was wrongly issued, a Retailer must submit a complete application for a Permit, along with the application fee and annual Permit fee. The Department shall issue a retailer permit pursuant to the requirements of this Chapter.

5.50.080 Permits nontransferable.

A. A Permit may not be transferred from one Person to another or from one location to another. Whenever a new Person obtains ownership in a business for which a 77 CC 04-03-2024
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Permit has been issued, a new Permit shall be required, but any exemption granted pursuant to Section 5.50.040 shall cease to apply.

B. Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a location shall continue to apply to a location and Permit ineligibility and suspension periods shall continue to apply to a location unless:

1. One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to one or more new owners; and

2. The Department is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an Arm's Length Transaction.

5.50.090 Permit conveys a limited, conditional privilege.

Nothing in this Chapter shall be construed to grant any person obtaining and maintaining a Permit any status or right other than the limited, conditional privilege to act as a Retailer at the location in the city identified on the face of the Permit. All Permits are issued subject to the City’s right to amend this Chapter, and Retailers shall comply with all provisions of this Chapter, as amended.

5.50.100 Fees.

The Department shall not issue or renew a Permit before full payment of any applicable fees. The County Board of Supervisors shall, from time to time, establish by resolution or ordinance the fees to issue or to renew a Permit. The fees shall be calculated so as to recover the cost of administration of this Chapter, including, for example, issuing a Permit, administering the Permit program, conducting Retailer education, routine Retailer inspection and compliance, but shall not exceed the cost of the regulatory program authorized by this Chapter. All fees and interest earned from such fees shall be used exclusively to fund administration and enforcement of this Chapter.

5.50.110 Compliance monitoring.

A. Compliance with this Chapter shall be monitored by the Department. In addition, any peace officer may enforce the penal provisions of this Chapter. The Department may designate any number of additional individuals to monitor and facilitate compliance with this Chapter.
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B. The Department or other individuals designated to enforce the provisions of this Chapter shall monitor each Retailer at least once per twelve-month period to determine if the Retailer is complying with all laws applicable to Retailing, other than those laws regulating underage access to Tobacco Products. Nothing in this paragraph shall create a right of action in any Retailer or other person against the City, the County of Santa Clara, or its agents.

C. Any Retailer found to be in violation of this Chapter shall pay all costs related to enforcement to ensure Retailer’s compliance with this Chapter, including but not limited to, fees for reinspection to determine compliance after a violation, enforcement costs, litigation costs, and attorneys’ fees in any administrative or civil matter in which the Department prevails pursuant to Division A1 of the County Ordinance Code or any other provision of law.

5.50.120 Prevention of underage sales.

A. The Department of other departments or individuals designated to enforce the provisions of this Chapter shall monitor each Retailer at least twice per twelvemonth period to determine whether the Retailer is conducting business in a manner that complies with laws regulating youth access to Tobacco Products.

Nothing in this paragraph shall create a right of action in any Retailer or other Person against the City, the County of Santa Clara, or its agents.

B. The Department or other departments or individuals designated to enforce the provisions of this Chapter shall not enforce any law establishing a minimum age for Tobacco Product purchases against an individual who otherwise might be in violation of such law because of the individual’s age (“Youth Decoy”) if the potential violation occurs when:

1. The Youth Decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City or its designee;

2. The Youth Decoy is acting as an agent of a department or individual designated by the City or the County of Santa Clara to monitor compliance with this Chapter; or

3. The Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the City, the County of Santa Clara, or the California Department of Public Health.
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5.50.130 Penalties for a violation by a Retailer with a Permit.

A. Administrative Fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the Retailer or any of the Retailer's agents or employees, violates any of the requirements, conditions, or prohibitions of this Chapter.

The amount of the administrative fine for each violation of this Chapter shall be as follows:

1. A fine not to exceed $1,000 for each violation identified during the first instance in which the Retailer has committed a violation or violations;

2. A fine not to exceed $2,500 for each violation identified during a subsequent instance if the Retailer has committed a previous violation or violations within a 60-month period; and

3. A fine not to exceed $5,000 for each violation identified during a subsequent instance after the Retailer twice committed a previous violation or violations within a 60-month period.

B. Permit suspension. In addition to any other penalty authorized by law, the Department may suspend a permit if the Department demonstrates that the Retailer or any of the Retailer’s agents or employees has violated any of the requirements, conditions, or prohibitions of this Chapter. The period of the suspension shall be as follows:

1. A suspension not to exceed 30 calendar days for an initial violation.

2. A suspension not to exceed 180 calendar days if a Retailer commits a violation or violations during two instances within a 60-month period.

3. When a Permit is suspended based on a violation of this Chapter, the Department shall post a placard at the physical location used for Retailing Tobacco Products to notify the general public of the suspension. The placard shall be:
(A) Posted in the front window of the storefront used for Retailing Tobacco Products within five feet of the front door; or
(B) Posted in a display case mounted on the outside front wall of the physical location used for Retailing Tobacco Products within five feet of the front door; or
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(C) Posted in a location approved by the Department to ensure proper notice to the general public and to patrons of the physical location used for Retailing Tobacco Products.
(D) Once attached to a building or structure, a placard is not to be removed, altered, or covered until done so by an authorized representative of the Department or upon written notification from the Department.

C. Permanent Permit revocation. In addition to any other penalty authorized by law, the Department shall permanently revoke a Permit if a retailer commits a violation or violations during three instances within a 60-month period.

D. Waiver or reduction of fines and penalties for first violation. The Department may, in its sole discretion, waive or reduce any fines and penalties for a Retailer's first violation of this Chapter if the Retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the Department’s waiver of penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocation for any future violation. This paragraph shall not apply to any violation involving a law regulating youth access to Tobacco Products.

E. Corrections period. The Department shall have discretion to allow a Retailer a period of time to correct any violation of any requirement, condition, or prohibition of this Chapter, other than a violation of a law regulating youth access to Tobacco Products. If the Department exercises its discretion to provide a corrections period, and a Retailer’s violation is corrected within the time allowed for correction, no penalty shall be imposed under this Chapter.

F. Written notice of penalties. Whenever a fine is issued and/or a Permit is suspended or revoked based on a violation of this Chapter, the Department shall provide the retailer written notice of the violation and the fine and suspension or revocation, including when the suspension or revocation shall take effect.

G. Appeals. Any penalties imposed under this section may be appealed pursuant to Section 5.50.150 of this Chapter.

H. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the Department is issued.
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5.50.140 Penalties for retailing without a Permit.

A. Administrative fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the Department demonstrates that the Retailer has engaged in Retailing at a location without a valid Permit, either directly or through the Retailer's agents or employees. The amount of the administrative fine for each violation of this Chapter shall be as follows:

1. A fine not to exceed $2,500 for each violation identified during the first instance in which the Retailer has committed a violation or violations without a valid Permit;

2. A fine not to exceed $5,000 for each violation identified during a subsequent instance if the Retailer has committed a previous violation or violations within a 60-month period without a valid Permit; and

3. A fine not to exceed $10,000 for each violation identified during a subsequent instance after the Retailer has twice committed a previous violation or violations within a 60-month period without a valid Permit.

B. Time period for Permit ineligibility. The ineligibility period shall be as follows:

1. For an initial violation of this Chapter without a valid Permit, no new Permit may be issued to the Retailer or the location (unless Ownership of the business at the location has been transferred in an Arm's Length Transaction) until 30 calendar days have passed from the date of the violation.

2. If a Retailer commits a violation or violations during two instances within a 60- month period without a valid Permit, no new Permit may be issued to the Retailer or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction) until one year has passed from the date of the second violation.

3. If a Retailer commits a violation or violations during three instances within a 60-month period without a valid Permit, the Retailer and the location (unless Ownership of the business at the location has been transferred in an Arm's Length Transaction) shall be permanently ineligible for a Permit.

C. Waiver or reduction of fines and penalties for first violation. The Department may, in its sole discretion, waive or reduce any fines and penalties for a Retailer's first violation of this Chapter if the Retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the Department’s 82 CC 04-03-2024
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waiver of fines or penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocation for any future violation. This subsection shall not apply to any violation involving a law regulating youth access to Tobacco Products.

D. Written notice of penalties. Whenever a fine is issued and/or a Permit is suspended pursuant to this section, the Department shall provide the Retailer written notice of the fine and suspension, including when the suspension shall take effect.

E. Appeals. Any penalties imposed under this Chapter may be appealed pursuant to Section 5.50.150 of this Chapter. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the County is issued.

5.50.150 Appeals.

A. Any Retailer served with a written notice of violation may request an administrative hearing to appeal the existence of the violation, the amount of the fine, the length of a suspension, a revocation of a Permit, the sustained impoundment of Tobacco Products, and/or seizure of Tobacco Products by returning a completed hearing request form to the Office of the County Hearing Officer within 10 days from the date of the written notice of penalties.

B. The Retailer shall include the following in or with the hearing request form:

1. A statement indicating the reason the Retailer contests the written notice of penalties, including a factual and/or legal basis for the appeal in sufficient detail to put the Department on notice of the nature of the appeal and the objections and arguments raised by the Retailer;

2. Any evidence the Retailer wants the Hearing Officer to consider;

3. Payment of the $250 filing fee.

4. An advance deposit of the amount of any fine challenged if less than $1,000.00, and otherwise $1,000.00;

5. The address of the Retailer and, if available, an email address that can be used for contact and correspondence by the Office of the County Hearing Officer and the Department. The Retailer may request service of notice by mail; and 83 CC 04-03-2024
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6. Notwithstanding the above requirements, a Retailer may seek a waiver or reduction in the filing fee and/or deposit requirement by submitting a sworn affidavit and supporting documents or materials demonstrating the Retailer’s financial inability to pay the filing fee and/or advance deposit.

C. The hearing request form shall be deemed filed on the date received by the Office of the County Hearing Officer. A timely appeal shall stay enforcement of the appealed penalties while the appeal is ongoing.

D. After receiving a timely hearing request form, the Office of the County Hearing Officer shall notify the Department as soon as practicable and then shall schedule an administrative hearing. The Office of the County Hearing Officer shall provide the Retailer and the Department at least ten calendar days’ written notice of the date, time, and place of the administrative hearing and the name of the Hearing Officer who will conduct the hearing. The notice shall be given to the Retailer either by email, if requested, or by first class mail, postage prepaid.

F. The hearing shall be conducted by the Hearing Officer on the date, time, and place specified in the notice to the Retailer. A Retailer’s failure to appear at the hearing shall constitute an abandonment of the hearing request and a failure to exhaust administrative remedies as a precedent to judicially challenge the existence of the violation and the imposition of the fine and suspension.

G. At the hearing, the Retailer and the Department shall have the opportunity to present evidence, including witnesses, relevant to the Hearing Officer’s determination of the matter. Neither the provisions of the Administration Procedure Act (Government Code Section 11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall apply to such hearing. The Hearing Officer may admit any evidence, including witnesses, relevant to the determination of the matter, except as otherwise provided in Section 5.50.160(C).

H. The written notice of penalties and any other reports prepared by or for the Department concerning the violation shall be admissible and accepted by the Hearing Officer as prima facie evidence of the violation and the facts stated in those documents. The Hearing Officer may continue the hearing from time to time, in the Hearing Officer’s sole discretion, to allow for its orderly completion 84 CC 04-03-2024
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of the hearing. After receiving the evidence submitted at the hearing, the Hearing Officer may further continue the hearing and request additional information from either the Department or the Retailer.

I. After considering the evidence and testimony submitted, the Hearing Officer shall issue a written decision regarding the matters properly raised in the request for administrative hearing. The Hearing Officer’s decision shall:

1. Be based on a preponderance of the evidence.

2. Include a statement of the reasons for the decision.

3. Be issued within twenty calendar days of the close of the hearing.

4. Be served on both the Retailer and the Department. The decision shall be given to the Retailer either by email, if requested, or by first class mail, postage prepaid.

K. The Hearing Officer’s written decision shall constitute the final administrative decision of the Department.

5.50.160 Enforcement.

A. Any violation of this Chapter is hereby declared to be a public nuisance.

B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter.

C. Whenever evidence of a violation of this Chapter is obtained in any part through the participation of an individual under the age of twenty-one years old, such an individual shall not be required over their objection to appear or give testimony in any civil or administrative process brought to enforce this Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

D. Violations of this Chapter may be remedied by a legal action brought by the County of Santa Clara Office of the County Counsel pursuant to Division A1 of the Ordinance Code of the County of Santa Clara. For the purposes of the civil remedies provided in this Chapter, each day on which a product is offered for 85 CC 04-03-2024
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Sale in violation of this Chapter, and each individual retail product that is Sold or Distributed in violation of this Chapter, shall constitute a separate violation of this Chapter.

E. Impoundment.

1. Based upon inspection findings or other evidence, the Department may impound Tobacco Products that are suspected of being or found to be offered for Sale or Distribution in violation of this Chapter. The Department may affix a label to the product that shall be removed only by the Department following final written determination by the Department as described below.

2. No impounded Tobacco Products shall be used, removed, disposed, or offered for Sale unless the impoundment has been released. The decision by the Department may be appealed pursuant to the procedures set forth in Section

5.50.150.

3. Within 30 days of final determination whether impounded products are authorized for sale under this Chapter, the Department shall release the impounded materials or order that unauthorized, impounded product shall be destroyed and properly disposed of at the cost of the Retailer.

F. Seizure. Tobacco Products offered for sale in violation of this Chapter are subject to seizure by the Department and shall be forfeited after the Retailer of the Tobacco Products seized is given reasonable notice and an opportunity to demonstrate that the Tobacco Products were not offered for sale in violation of this Chapter. The decision by the Department may be appealed pursuant to the procedures set forth in Section 5.50.150. Forfeited Tobacco Products shall be destroyed and properly disposed of at the cost of the Retailer after all internal appeals have been exhausted and after the time in which to seek judicial review pursuant to Section 5.50.150 of this Chapter has expired.

G. All Retailers are responsible for the actions of their employees relating to compliance with this Chapter. The Sale, offer to sell, or furnishing of any Tobacco Products by an employee shall be considered an act of the Retailer.

H. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.
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5.50.170 Interpretation.

A. Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by, or in conflict with, federal or state law, rules, or regulations.

B. Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a Tobacco Product by any Person not engaged in the retailing of such products.
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ORDINANCE NO. __________________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND

REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS
The City Council of the City of Cupertino finds that:

1. Electronic cigarettes, also known as e‐cigarettes, e‐vaporizers, or electronic nicotine delivery systems, are battery‐operated devices that people use to inhale an aerosol that typically contains nicotine. In addition to nicotine, the aerosol from e‐cigarettes may include up to 31 other components, including formaldehyde, acetaldehyde, glycidol, acrolein, acetol, and diacetyl. Several of these compounds are likely carcinogens, and acrolein is a powerful irritant. (See 2016 Surgeon General’s Report: E‐Cigarette Use Among Youth and Young Adults, Centers for Disease Control and Prevention (2016),
https://www.cdc.gov./tobacco/data_statistics/sgr/e‐cigarettes/index.htm). These products can resemble traditional tobacco cigarettes (cig‐a‐likes), cigars, or pipes, or even everyday items like pens or USB memory sticks. (See Vaping Devices (Electronic Cigarettes), National Institute for Drug Abuse (2020), https://www.drugabuse.gov/publications/drugfacts/vaping‐devices‐electronic‐ cigarettes). The pervasive use of these and other related electronic cigarette products has given rise to a massive and multifaceted public health crisis. In addition, the Surgeon General has declared the use of e‐cigarettes among youth an “epidemic.” Nearly 1 in 3 Santa Clara County teens—31.6 percent—report that they have used an e‐cigarette at least once. (See Zhu S‐H, et al., Tobacco use among high school students in Santa Clara County: Findings from the 2017‐18 California Student Tobacco Survey, Center for Research and Intervention in Tobacco Control (2019)).

NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:

SECTION 1. Adoption.

The Cupertino Municipal Code is hereby amended as set forth in Attachment A.

SECTION 2. Severability and Continuity.

The City Council declares that each section, sub‐section, paragraph, sub‐paragraph, sentence, clause, and phrase of this ordinance is severable and independent of every other section, sub‐section, paragraph, sub‐paragraph, sentence, clause, and phrase of this ordinance. If any section, sub‐section, paragraph, sub‐paragraph, sentence, clause or phrase of this ordinance is held invalid, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of such portion, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated.

SECTION 3. Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. However, the Ordinance’s requirements shall not become operative as to tobacco retailers until July 1, 2020, which means that the City, or its designee, will not begin to enforce the provisions and penalties under the Ordinance until July 1, 2020.

SECTION 5. Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

INTRODUCED at a special meeting of the Cupertino City Council on April 3, 2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16, 2024 by the following vote:
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Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
__________________
Shelia Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
APPROVED AS TO FORM:
__________________________
Christopher D. Jensen, City Attorney
________________________
Date
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Attachment A – An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 of Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products
The sections of the Cupertino Municipal Code set forth below are amended or adopted as follows:

Text added to existing provisions is shown in bold double‐underlined text (example) and text to be deleted in shown in strikethrough (example). Text in existing provisions is not amended or readopted by this Ordinance. Text in italics is explanatory and is not an amendment to the Code.

Where the explanatory text indicates that a new section is being added to the City Code, the new section is shown in plain text.

1. Chapter 5.50 of Title 5 is amended as follows:

5.50.010 PurposeIntent.

A. This Chapter is adopted to:

1. Ensure compliance with the business standards and practices of the City;

2. Encourage responsible retailing of tobacco productsTobacco Products;

3. DiscouragePrevent violations of laws related to tobacco productsTobacco Products, especially those that prohibit or discourage the sale or distribution of tobacco productsTobacco Products and Electronic Cigarette Products to personsindividuals under twenty‐one;

4. Respond to a new wave of addiction to electronic cigarette productsElectronic Cigarette Products;

5. Reduce vulnerability to unexplained illnesses associated with electronic cigarette productsElectronic Cigarette Products; and

6. Protect the public health and welfare.
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B. This Chapter does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws.

5.50.020 Definitions.

For the purposes of this Chapter, the following definitions shall apply:

A. “Armʹs length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two or more informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this Chapter is not an armʹs length transaction.

B. “DesigneeDepartment” means the County of Santa Clara’s Department of Environmental Health and any agency or public entity selected orperson designated by the CityDirector of the Department of Environmental Health to enforce and/or administer the provisions of this Chapter.

C. “Distribute or Distribution” means the transfer, by any person other than a common carrier, of a tobacco productTobacco Product to another person for sale or personal consumption.

D. “Electronic cigarette productsCigarette Products” means any of the following products:

1. Any device or delivery system that can be used to deliver nicotine in aerosolized or vaporized form, including, but not limited to, an e‐cigarette, e‐ cigar, e‐pipe, vape pen, or e‐hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.

4. Any product for use in an electronic nicotine device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.
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5. Electronic cigarette productsCigarette Products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. Electronic cigarette productsCigarette Products shall not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where that product is marketed and sold solely for such approved use. See 21 U.S.C. § 387a.387(a). As used in this paragraph, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

E. “Hearing Officer” means the hearing officer appointed by the Department in accordance with County of Santa Clara Ordinance Code (“County Ordinance Code”) section A38‐2.

E.F. “Impound” means the legal control exercised by the CityDepartment over the use, sale, disposal, or removal of any Tobacco Products.

F.G. “Ownership” means possession of a ten percent or greater interest in the stock, assets, or income of a business, other than a security interest for the repayment of debt. Notwithstanding any other definition in this code, an owner means a person who possesses ownership.

G.H. “Permit” means a valid permit issued by the City or its designeeDepartment to a person to act as a retailer.

H.I. “Retailer” means any person who sells, exchanges, or offers to sell or exchange, or distributes Tobacco Products for any form of consideration, whether or not they possess a current permitPermit. “Retailing” shall mean the doing of any of these thingsactions. This definition is without regard to the quantity of tobacco productsTobacco Products sold, exchanged, distributed, or offered for sale or exchange.

I.J. “School” means a public or private elementary, middle, junior high, or high school.

K. “Sale and sold” includes any sale, exchange, barter, or offer for sale.

J. “Tobacco productProduct” means:

K.L. Any (unless specifically noted elsewhere) any product subject to: Subchapter IX (21 U.S.C. § 387 et seq. (“Subchapter IXʺ)”)) of the Federal Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b)) (ʺ) (products subject to [Subchapter IX]ʺ); 93 CC 04-03-2024
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or); 21 C.F.R. §§ 1100.1‐ 1100.3 (ʺ[(tobacco products] are subject to Subchapter IXʺ))) and electronic cigarette productsElectronic Cigarette Products. Products subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, roll‐your‐own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco. Products that are not subject to Subchapter IX include accessories of tobacco products, such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a tobacco product.

5.50.030. Requirements and prohibitions.

A. Permit required. It shall be unlawful for any person Person to act as a retailer of tobacco products in the cityRetailer without first obtaining and maintaining a valid retailer permitPermit pursuant to this Chapter for each location at which retailingRetailing occurs. Tobacco product retailing without a valid tobacco retailer permit is a nuisance as a matter of law.

C. Display of permitPermit. Each current retailer permitPermit shall be prominently displayed in a publicly visible place at the location identified in the permitPermit.

D. Notice of minimum age for purchase of tobacco productsTobacco Products.

Retailers shall post conspicuously, at each point of purchase, a notice stating that selling tobacco productsTobacco Products to anyone under twenty‐one years of age is illegal and subject to penalties. Such notice shall be subject to the approval of the city or its designeeDepartment.

E. Positive identification required. No retailer shall sell or distribute a tobacco productTobacco Product to another personindividual without first examining the customerʹsindividualʹs identification to confirm that the customerindividual is at least the minimum age required under stateState law to purchase and possess the tobacco productTobacco Product.

F. Minimum age for individuals selling tobacco productsTobacco Products. No individual who is younger than the minimum age established by state law for the purchase or possession of tobacco productsTobacco Products shall engage in retailing.

G. False and misleading advertising prohibited. A retailer without a permitPermit:
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1. Shall keep all tobacco productsTobacco Products out of public view.

2. Shall not display any advertisement relating
to tobacco productsTobacco Products that promotes the saleSale or distributionDistribution of such products from the retailerʹsRetailerʹs location or that could lead a reasonable consumer to believe
that tobacco productsTobacco Products can be obtained at that location.

H. Limitation on storefront advertising. No more than fifteen percent of the square footage of the windows and clear doors of a physical storefront used for retailing tobacco productsRetailing Tobacco Products shall bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises.

However, this latter requirement of this paragraph shall not apply to an establishment where there are no windows or clear doors, or where existing windows are located only at a height that precludes a view of the interior of the premises by a personan individual standing outside the premises.

I. Flavored tobacco productsTobacco Products.

1. No retailerRetailer shall sell a tobacco productTobacco Product containing, as a constituent or additive, an artificial or natural flavor or aroma (other than tobacco ) or an herb or spice, including but not limited to strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, mint, menthol, or coffee, that is a characterizing flavor or aroma of the tobacco productTobacco Product, smoke or vapor produced by the tobacco productTobacco Product.

2. A tobacco productTobacco Product shall be subject to a rebuttable presumption that the product is prohibited by subparagraph (1) of this paragraph if:
a. The productʹs manufacturer or any other person associated with the manufacture or sale of tobacco productsTobacco Products makes or disseminates public statements or claims to the effect that the product has or produces a characterizing flavor or aroma, other than tobacco; or b. The productʹs label, labeling, or packaging includes a statement or claim— including any text and/or images used to communicate information—that 95 CC 04-03-2024
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the product has or produces a characterizing flavor or aroma, other than tobacco.

J. Vending machines prohibited. No tobacco productTobacco Product shall be sold, offered for sale,Sold or distributedDistributed to the public from a vending machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

K. Prohibition on saleSale or distributionDistribution
of tobacco productsTobacco Products to personsindividuals under twenty‐one years. No retailerRetailer shall sell, offer for sale,Sell or distributeDistribute any tobacco productTobacco Product to any individual who is under twenty‐one years of age.

L. Prohibition on saleSale or distributionDistribution of electronic cigarette products.Electronic Cigarette Products. No person in the City, whether or not issued a Permit, shall sellSell or distribute electronic cigarette products.Distribute Electronic Cigarette Products.

5.50.040. Eligibility requirements for a permitPermit.

A. No retailer permitPermit may be issued to authorize retailingRetailing at or from other than a fixed location. For example, retailingRetailing by persons on foot or from vehicles is prohibited.

B. No retailer permitPermit may be issued to authorize retailingRetailing at a temporary or recurring temporary event. For example, retailingRetailing at flea markets and farmersʹ markets is prohibited.

C. No retailer permitPermit may be issued to authorize retailingRetailing at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription drugs are offered for sale.

D. No retailer permitPermit may be issued to authorize retailingRetailing at any location within one thousand feet of a schoolSchool, as measured by a straight line between any point along the property line of any parcel on which a schoolSchool is located and any point along the perimeter of the Permit applicantʹs proposed business location; provided, however, that the prohibition contained in this paragraph shall not apply to the following:
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1. Any retailerRetailer of tobacco products (as such term was defined in Ordinance No. 20‐2197) operating lawfully on the date immediately prior to thisChapterbefore this Chapter becoming effective provided that the retailer obtainsRetailer obtained a permit prior toPermit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to

5.50.070(B); and

2. Any lawfully operating retailer of tobacco products Retailer of electronic smoking devices (as such term was defined in Ordinance No. 20‐2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B); however, any such Retailer is subject to the prohibition on the Sale and Distribution of Electronic Cigarette Products established in Section 5.50.030; and

2.3. Any lawfully operating Retailer of Tobacco Products that would otherwise become ineligible to receive or renew a retailer permit Permit due to the creation or relocation of a school.

E. No retailer permitPermit may be issued to authorize retailingRetailing at a location which is within five hundred feet of a location occupied by another retailerRetailer, as measured by a straight line between any point along the perimeter of an existing retailer’sRetailer’s business location and any point along the perimeter of the Permit applicantʹs proposed business location,; provided, however, that the prohibition contained in this paragraph shall not apply to existing retailers:

3.1.Any Retailer of tobacco products (as such term was defined in Ordinance No. 20‐2197) operating lawfully on the date immediately prior tobefore this Chapter becoming effective provided that the retailers obtainRetailer obtained a permit prior toPermit before July 1, 2020 pursuant to sections 5.50.050 and

5.50.060, and timely renew their permits pursuant to 5.50.070(B).sections

5.50.050 and 5.50.060, and timely renews its Permit pursuant to 5.50.070(B); and

2. Any Retailer of electronic smoking devices (as such term was defined in Ordinance No. 20‐2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renewed its Permit pursuant to 5.50.070(B); however, any such Retailer is subject to the 97 CC 04-03-2024
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prohibition on the Sale and Distribution of Electronic Cigarette Products established in Section 5.50.030.

E.F. Any exemption granted to a retailerRetailer pursuant to this Chapter shall cease to apply upon the earlier of the following to occur:

1. The retailerRetailer fails to timely renew the retailer permitPermit pursuant to this Chapter.

2. A new personPerson obtains ownership in the business.

5.50.050 Application procedure.

A. It is the responsibility of each retailerRetailer to be informed of all laws applicable to retailingRetailing, including those laws affecting the issuance of a retailer permit.Permit. No retailerRetailer may rely on the issuance of a retailer permitPermit as a determination by the City or the County of Santa Clara that the retailerRetailer has complied with all laws applicable to retailingRetailing. A retailer permitPermit issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information supplied by a retailerRetailer shall be revoked pursuant to this Chapter.

B. All retailer permitPermit applications shall be submitted on a form supplied by the City or its designee to implement this ChapterDepartment.

C. A permitted retailer shall inform the City or its designeeDepartment in writing of any change in the information submitted on an application for a retailer permitPermit within fourteen calendar days of a change.

D. All information specifiedincluded in an application pursuant to this Chapter shall be subject to disclosure under the California Public Records Act (Government Code Section 6250 et seq.) or any other applicable law, subject to anythe laws’ exemptions.

5.50.060 Permit issuance, denial, and revocation.

A. Upon the receipt of a complete application for a retailer permitPermit, the application fee, and the annual permitPermit fee, the City or its designeeDepartment shall issue a retailer permitPermit unless substantial evidence demonstrates that one or more of the following bases for denial exists:

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2. The application seeks authorization for retailingRetailing at a location for which this Chapter prohibits issuance of a retailer permitPermit.

3. The application seeks authorization for retailingRetailing by a personPerson to whom this Chapter prohibits issuance of a retailer permitPermit.

4. The application seeks authorization for a retailerRetailer whose permitPermit has previously been revoked or who has otherwise violated any provision of this Chapter within the last 60 months.

5. The application seeks authorization for retailingRetailing that is prohibited pursuant to this Chapter (e.g., mobile vending, Electronic Cigarette Products) or that is unlawful pursuant to any other law.

6. The application seeks authorization for Retailing by a Retailer who has failed to pay any fees, penalties, or reinspection fees required by this Chapter.

B. A retailer permitPermit shall be revoked if the City or its designeeDepartment finds that one or more of the bases for denial of a retailer permitPermit under this Chapter existed at the time application was made or at any time before the retailer permitPermit was issued. Such a revocation shall be without prejudice to the filing of a new permitPermit application.

C. A violation of this Chapter may resultPermit shall be permanently revoked if the Retailer has committed violations as specified in suspension or permanent revocation of a permit pursuant to Section 5.50.130.

5.50.070 Permit term, conditions, renewal, and expiration.

A. Term of permitPermit. The term of a retailer permitPermit is one year. A retailer permitPermit is invalid upon expiration.

B. Conditions of permitPermit. As conditions of permitPermit issuance and retention, retailerRetailer shall:

1. Allow compliance inspections as described in this Chapter and expressly consent to inspection of all areaareas and records of retailer’sRetailer’s business required to effectuate the purpose of this Chapter, including unlocking and 99 CC 04-03-2024
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allowing access to any area of retailer’sRetailer’s business requested by any individual authorized to monitor and facilitate compliance with this Chapter.

2. Comply with any order of the cityDepartment to impound any product not authorizeauthorized to be sold by thisChapterthis Chapter and cooperate with any cityDepartmental seizure of any product, subject to appeal of those actions.

3. Failure to comply with these permit conditions may result in permitPermit suspension or revocation as described in Section 5.12050.130.

C. Renewal of permitPermit. The City or its designeeDepartment shall renew a valid retailer permitPermit upon timely payment of the annual permitPermit fee provided that the retailerRetailer complies with this Chapter, as amended. The City or its designeeDepartment may, in its discretion, agree to renew any expired retailer permitPermit within the three‐month period following expiration if the retailerRetailer pays the annual permitPermit fee and applicable late charges. For every calendar month, or fraction thereof, that a retailerRetailer fails to renew an expired retailer permitPermit, a late charge equal to twenty percent of the annual permitPermit fee shall be assessed. A retailer permitPermit renewed within three calendar months of expiration shall be treated as if timely renewed.

D. Issuance of permitPermit after revocation or expiration of permitPermit. To apply for a new retailer permitPermit more than three calendar months after expiration of a retailer permitPermit or following revocation of a retailer permitPermit that was wrongly issued, a retailerRetailer must submit a complete application for a retailer permitPermit, along with the application fee and annual permitPermit fee.

The City or its designeeDepartment shall issue a retailer permit pursuant to the requirements of this Chapter.
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5.50.080 Permits nontransferable.

A. A retailer permitPermit may not be transferred from one personPerson to another or from one location to another. Whenever a new personPerson obtains ownership in a business for which a retailer permitPermit has been issued, a new retailer permitPermit shall be required, but any exemption granted pursuant to Section 5.50.040(D) or (E) shall cease to apply.

B. Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a location shall continue to be counted againstapply to a location and permitPermit ineligibility and suspension periods shall continue to apply to a location unless:

1. One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to one or more new owners; and

2. The City or its designeeDepartment is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an armʹs length transactionArmʹs Length Transaction.

5.50.090 Permit conveys a limited, conditional privilege.

Nothing in this Chapter shall be construed to grant any person obtaining and maintaining a retailer permitPermit any status or right other than the limited, conditional privilege to act as a retailerRetailer at the location in the city identified on the face of the permitPermit. All permitsPermits are issued subject to the City’s right to amend this chapterChapter, and retailersRetailers shall comply with all provisions of this Chapter, as amended.

5.50.100 Fees.

The City or its designeeDepartment shall not issue or renew a retailer permitPermit before full payment of any applicable fees. The CityCounty Board of Supervisors shall, from time to time, establish by resolution or ordinance the fees to issue or to renew a retailer permitPermit. The fees shall be calculated so as to recover the cost of 101
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administration of this Chapter, including, for example, issuing a permitPermit, administering the permitPermit program, conducting retailerRetailer education, routine retailerRetailer inspection and compliance, but shall not exceed the cost of the regulatory program authorized by this Chapter. All fees and interest earned from such fees shall be used exclusively to fund administration and enforcement of this Chapter.

5.50.110 Compliance monitoring.

A. Compliance with this Chapter shall be monitored by the City or its designee.Department. In addition, any peace officer may enforce the penal provisions of this Chapter. The City ManagerDepartment may designate any number of additional personsindividuals to monitor and facilitate compliance with this Chapter.

B. The City or its designeeDepartment or other individuals designated to enforce the provisions of this Chapter shall monitor each retailerRetailer at least once per twelve‐month period to determine if the retailerRetailer is complying with all laws applicable to retailingRetailing, other than those laws regulating underage access to tobacco products.Tobacco Products. Nothing in this paragraph shall create a right of action in any retailerRetailer or other person against the City, the County of Santa Clara, or its agents.

5.50.120 Prevention of underage sales.

A. The CityDepartment of other departments or its designeeindividuals designated to enforce the provisions of this Chapter shall monitor each retailerRetailer at least twice per twelve‐month period to determine whether the retailerRetailer is conducting business in a manner that complies with laws regulating youth access to tobacco products.Tobacco Products. Nothing in this paragraph shall create a right of action in any retailerRetailer or other personPerson against the City, the County of Santa Clara, or its agents.

B. The CityDepartment or its designeeother departments or individuals designated to enforce the provisions of this Chapter shall not enforce any law establishing a 102
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minimum age for tobacco productTobacco Product purchases against a personan individual who otherwise might be in violation of such law because of the person’sindividual’s age (“youth decoyYouth Decoy”) if the potential violation occurs when:

1. The youth decoyYouth Decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City or its designee;

2. The youth decoyYouth Decoy is acting as an agent of a persondepartment or individual designated by the City or its designeethe County of Santa Clara to monitor compliance with this Chapter; or

3. The youth decoyYouth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the City, the County of Santa Clara, or the California Department of Public Health.

5.50.130 Penalties for a violation by a Retailer with a Permit suspension or revocation.

A. Permit suspension. Administrative Fine. In addition to any other penalty authorized by law, the Citya Retailer shall pay a fine if the Retailer or any of the Retailerʹs agents or employees, violates any of the requirements, conditions, or prohibitions of this Chapter.

The amount of the administrative fine for each violation of this Chapter shall be as follows:

1. A fine not to exceed $1,000 for each violation identified during the first instance in which the Retailer has committed a violation or violations;

2. A fine not to exceed $2,500 for each violation identified during a subsequent instance if the Retailer has committed a previous violation or violations within a 60‐month period; and

3. A fine not to exceed $5,000 for each violation identified during a subsequent instance after the Retailer twice committed a previous violation or violations within a 60‐month period.

A.B. Permit suspension. In addition to any other penalty authorized by law, the Department may suspend a permit if the CityDepartment demonstrates that the retailerRetailer or any of the retailer’sRetailer’s agents or employees has violated 103
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any of the requirements, conditions, or prohibitions of this Chapter. The period of the suspension shall be as follows:

1. A suspension not to exceed 30 calendar days for an initial violation.

2. A suspension not to exceed 180 calendar days if a retailerRetailer commits a violation or violations during two instances within a 60‐month period.

3. When a Permit Misis suspended based on a violation of this chapterChapter, the CityDepartment shall post a placard at the physical location used for retailing tobacco productsRetailing Tobacco Products to notify the general public of the suspension. The placard shall be:
(A) Posted in the front window of the storefront used for retailing tobacco productsRetailing Tobacco Products within five feet of the front door; or (B) Posted in a display case mounted on the outside front wall of the physical location used for retailing tobacco productsRetailing Tobacco Products within five feet of the front door; or
(C) Posted in a location approved by the DirectorDepartment to ensure proper notice to the general public and to patrons of the physical location used for retailing tobacco productsRetailing Tobacco Products.
(D) Once attached to a building or structure, a placard is not to be removed, altered, or covered until done so by an authorized representative of the CityDepartment or upon written notification from the CityDepartment.

B.C. Permanent permitPermit revocation. In addition to any other penalty authorized by law, the CityDepartment shall permanently revoke a permitPermit if a retailer commits a violation or violations during three instances within a 60‐ month period.

C.D. Waiver or reduction of fines and penalties for first violation. The City or its designeeDepartment may, in its sole discretion, waive or reduce any fines and penalties for a retailerʹsRetailerʹs first violation of this section,Chapter if the retailerRetailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the City’s or its designee’sDepartment’s waiver of penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocation for any future violation. This paragraph shall not apply to any violation involving a law regulating youth access to tobacco productsTobacco Products.
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D.E. Corrections period. The City or its designeeDepartment shall have discretion to allow a retailerRetailer a period of time to correct any violation of any requirement, condition, or prohibition of this Chapter, other than a violation of a law regulating youth access to tobacco products.Tobacco Products. If the City or its designeeDepartment exercises its discretion to provide a corrections period, and a retailer’sRetailer’s violation is corrected within the time allowed for correction, no penalty shall be imposed under this Chapter.

E.F. Written notice of penalties. Whenever an administrative citationa fine is issued and/or a permitPermit is suspended or revoked based on a violation of this Chapter, the City or its designeeDepartment shall provide the retailer written notice of the violation and the fine and suspension or revocation, including when the suspension or revocation shall take effect.

F.G. Appeals. The suspension or revocation of a permitAny penalties imposed under this section may be appealed in the same manner as the appeal of an administrative citation pursuant to Section 1.10.090. 5.50.150 of this Chapter.

G.H. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the CityDepartment is issued.

5.50.140 Penalties for retailing without a Permit.

A. Administrative fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the Department demonstrates that the Retailer has engaged in Retailing at a location without a valid Permit, either directly or through the Retailerʹs agents or employees. The amount of the administrative fine for each violation of this Chapter shall be as follows:

1. A fine not to exceed $2,500 for each violation identified during the first instance in which the Retailer has committed a violation or violations without a valid Permit;

2. A fine not to exceed $5,000 for each violation identified during a subsequent instance if the Retailer has committed a previous violation or violations within a 60‐month period without a valid Permit; and

3. A fine not to exceed $10,000 for each violation identified during a subsequent instance after the Retailer has twice committed a previous violation or violations within a 60‐month period without a valid Permit.

B. Time period for Permit ineligibility. The ineligibility period shall be as follows:
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1. For an initial violation of this Chapter without a valid Permit, no new Permit may be issued to the Retailer or the location (unless Ownership of the business at the location has been transferred in an Armʹs Length Transaction) until 30 calendar days have passed from the date of the violation.

2. If a Retailer commits a violation or violations during two instances within a 60‐ month period without a valid Permit, no new Permit may be issued to the Retailer or the location (unless ownership of the business at the location has been transferred in an Armʹs Length Transaction) until one year has passed from the date of the second violation.

3. If a Retailer commits a violation or violations during three instances within a 60‐month period without a valid Permit, the Retailer and the location (unless Ownership of the business at the location has been transferred in an Armʹs Length Transaction) shall be permanently ineligible for a Permit.

C. Waiver or reduction of fines and penalties for first violation. The Department may, in its sole discretion, waive or reduce any fines and penalties for a Retailerʹs first violation of this Chapter if the Retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the Department’s waiver of fines or penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocation for any future violation. This subsection shall not apply to any violation involving a law regulating youth access to Tobacco Products.

5.50.150 Appeals.

A. Any Retailer served with a written notice of violation may request an administrative hearing to appeal the existence of the violation, the amount of the fine, the length of a suspension, a revocation of a Permit, the sustained impoundment of Tobacco Products, and/or seizure of Tobacco Products by 106
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returning a completed hearing request form to the Office of the County Hearing Officer within 10 days from the date of the written notice of penalties.

B. The Retailer shall include the following in or with the hearing request form:

2. Any evidence the Retailer wants the Hearing Officer to consider;

3. Payment of the $250 filing fee.

4. An advance deposit of the amount of any fine challenged if less than $1,000.00, and otherwise $1,000.00;

E. Between the time the Retailer requests the administrative hearing and the time of the Hearing Officer’s decision, the Retailer, the Department, and each of their representatives shall not engage in ex parte communications with the Hearing Officer regarding the matters at issue in the hearing.
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F. The hearing shall be conducted by the Hearing Officer on the date, time, and place specified in the notice to the Retailer. A Retailer’s failure to appear at the hearing shall constitute an abandonment of the hearing request and a failure to exhaust administrative remedies as a precedent to judicially challenge the existence of the violation and the imposition of the fine and suspension.

H. The written notice of penalties and any other reports prepared by or for the Department concerning the violation shall be admissible and accepted by the Hearing Officer as prima facie evidence of the violation and the facts stated in those documents. The Hearing Officer may continue the hearing from time to time, in the Hearing Officer’s sole discretion, to allow for its orderly completion of the hearing. After receiving the evidence submitted at the hearing, the Hearing Officer may further continue the hearing and request additional information from either the Department or the Retailer.

1. Be based on a preponderance of the evidence.

2. Include a statement of the reasons for the decision.

3. Be issued within twenty calendar days of the close of the hearing.

4. Be served on both the Retailer and the Department. The decision shall be given to the Retailer either by email, if requested, or by first class mail, postage prepaid.

J. Based on the Hearing Officer’s decision, the Office of the County Hearing Officer shall promptly refund to the Retailer any amount of the advance fine deposit the Department is not entitled to and shall provide the remainder to the Department. 108
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K. The Hearing Officer’s written decision shall constitute the final administrative decision of the Department.

5.50.140160 Enforcement.

A. Any violation of this Chapter is subject to administrative citation pursuant to Chapter 1.10.

B.A. Any violation of this Chapter is hereby declared to be a public nuisance.

C.B. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter.

D.C. Whenever evidence of a violation of this Chapter is obtained in any part through the participation of a personan individual under the age of eighteentwenty‐one years old, such a personan individual shall not be required over his or hertheir objection to appear or give testimony in any civil or administrative process brought to enforce this Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

E.D. Violations of this Chapter may be remedied by a civillegal action brought by the City. County of Santa Clara Office of the County Counsel pursuant to Division A1 of the Ordinance Code of the County of Santa Clara. For the purposes of the civil and administrative remedies provided in this Chapter, each day on which a product is offered for saleSale in violation of this Chapter, and each individual retail product that is distributed, sold,Sold or offered for saleDistributed in violation of this Chapter, shall constitute a separate violation of this Chapter.

F.E. Impoundment.

1. Based upon inspection findings or other evidence, the CityDepartment may impound tobacco productsTobacco Products that are suspected of being or found to be offered for saleSale or distributionDistribution in violation of this Chapter. The CityDepartment may affix a label to the product that shall be removed only by the CityDepartment following final written determination by the CityDepartment as described below.

2. No impounded tobacco productsTobacco Products shall be used, removed, disposed, or offered for saleSale unless the impoundment has been released. 109
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The decision by the Department may be appealed pursuant to the procedures set forth in Section 5.50.150.

3. Within 30 days of final determination whether impounded products are authorized for sale under this Chapter, the CityDepartment shall release the impounded materials or order that unauthorized, impounded product shall be destroyed and properly disposed of at the cost of the retailer. The decision by the City may be appealed pursuant to the procedures set forth in Section

1.10.090.Retailer.

G.F. Seizure. Tobacco productsProducts offered for sale in violation of this Chapter are subject to seizure by the CityDepartment and shall be forfeited after the retailerRetailer of the tobacco productsTobacco Products seized is given reasonable notice and an opportunity to demonstrate that the tobacco productsTobacco Products were not offered for sale in violation of this Chapter.

The decision by the CityDepartment may be appealed pursuant to the procedures set forth in Section 1.10.0905.50.150. Forfeited tobacco productsTobacco Products shall be destroyed and properly disposed of at the cost of the retailerRetailer after all administrativeinternal appeals have been exhausted and after the time in which to seek judicial review pursuant to Section 5.50.150 of this Chapter has expired.

H.G. All retailersRetailers are responsible for the actions of their employees relating to compliance with this Chapter. The saleSale, offer to salesell, or furnishing of any tobacco productsTobacco Products by an employee shall be considered an act of the retailerRetailer.

I. Any retailer found to bin in violation of this Chapter shall pay all costs related to enforcement to ensure retailer’s compliance with this Chapter, including but not limited to fees for reinspection to determine compliance after a violation, enforcement costs, litigation costs, and attorneys’ fees in any administrative or civil matter in which the City prevails.

J.H. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

5.50.150170 Interpretation.

A. Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by, or in conflict with, federal or state law, rules, or regulations.
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B. Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a tobacco productTobacco Product by any personPerson not engaged in the retailing of such products.
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March 22, 2024
Dear Business Owner,
The City of Cupertino is reaching out to inform you about proposed changes to the City’s Tobacco Retailer Permit (TRP) Ordinance (CMC Ch. 5.50), which may impact your business.

The TRP program in Cupertino is currently enforced by Santa Clara County’s Public Health Department. This ordinance will take effect 30 days after the second reading at a City Council meeting. The second reading is tentatively scheduled for April 16.

Proposed changes to the TRP Ordinance currently under consideration, include, but are not limited to, the following:

1. Establish fines for each violation for retailers operating with a valid permit as follows:
• A fine not to exceed $1,000 for each first violation
• A fine not to exceed $2,500 for each second violation within a 5-year period • A fine not to exceed $5,000 for each third violation within a 5-year period

2. Establish fines for each violation for retailers operating without a valid permit as follows:
• A fine not to exceed $2,500 for each first violation and 30 days of permit ineligibility
• A fine not to exceed $5,000 for each second violation within a 5-year period and 1-year of permit ineligibility
• A fine not to exceed $10,000 for each third violation within a 5-year period and permanently ineligible for a permit

3. Establishment of an appeals process with the Office of the County Hearing Officer The proposed changes will be considered at the April 3, 2024, City Council meeting. There will be an opportunity for public comment (in person or via Zoom) about the proposals during the meeting. Meeting materials for this topic, including the proposed ordinance, will be available at cupertino.org/agenda on Wednesday evening on March 27, 2024.

If you are unable to attend the meeting, you are welcome to share your feedback by contacting Astrid Robles, Senior Management Analyst, at (408) 777-3314 or [email protected].
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First Amended and Restated Agreement between the County of Santa Clara and the City of Cupertino for a Tobacco Retail Permit Program

FIRST AMENDED AND RESTATED AGREEMENT BETWEEN

THE COUNTY OF SANTA CLARA

AND CITY OF CUPERTINO FOR

A TOBACCO RETAIL PERMIT PROGRAM
This First Amended and Restated Agreement (“Agreement”) is entered into by and between the County of Santa Clara (“County”) and City of Cupertino (“City”) relating to administration and enforcement of a tobacco retail permit program in the City of Cupertino. County and City may be referred to in this Agreement individually as a “Party” and collectively as “Parties.” Background / Purpose
In 2010, the County added Chapter XXIII to Division A18 of its Ordinance Code (“Chapter XXIII”), thereby establishing a permit requirement for retailers of tobacco products in the unincorporated areas of the County of Santa Clara. The County has since expanded the scope of Chapter XXIII and modified provisions therein. The City has adopted City Code Chapter 5.50 to mirror the provisions of Chapter XXIII in their entirety, effective July 1, 2020, and intends to continue updating City Code Chapter 5.50 to maintain consistency with Chapter XXIII. The City and County intend for the County to administer and enforce the City’s tobacco retail permit program (as described in City Code Chapter 5.50) within the City, except as otherwise provided in this Agreement. The County intends to cite violators of the City’s Municipal Code Chapter

5.50 pursuant to this Agreement. Terms used in this Agreement, such as, but not limited to, “tobacco products” and “retailer,” shall be interpreted in accordance with Chapter XXIII and City Code Chapter 5.50.

Agreement
The Parties agree as follows:

1. Designation
The City herby designates the County of Santa Clara’s Department of Environmental Health and any agency or person designated by the Director of the Department of Environmental Health to enforce or administer the City Ordinance. They shall act as the “Department”, as defined in section 5.50.020(b) of the City Ordinance.

2. Scope of Work
Each Party shall perform the work as described in Exhibit A, attached hereto and incorporated herein by this reference.

3. Legislative Consistency
The County’s administration and enforcement under this Agreement is contingent upon the City’s adoption and maintenance of a City Ordinance that is the same as the County Ordinance in all material respects.

3.1 Within 90 days of the County’s adoption of any material amendment to the County Ordinance, the City’s governing body shall consider and vote upon 113
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an amendment to the City Ordinance that is the same as the County’s amendment in all material respects. If the City does not adopt such an amendment within 90 days of the County’s amendment to the County Ordinance, the County may, in its sole discretion, immediately terminate this Agreement by sending written notice to the City.

3.2 If the City wishes to amend the City Ordinance other than to conform to the County’s prior amendment of the County Ordinance as set forth in Paragraph 3.1 above, the City shall provide the County with the full text of the proposed amendment 120 days prior to adoption of such an amendment. If the City adopts an amendment to the City Ordinance other than to conform in all material respects to the County’s prior amendment of the County Ordinance, the County may, in its sole discretion, immediately terminate this Agreement by sending written notice to the City.

3.3 The County shall have no responsibility for administering or enforcing any provisions of the City Ordinance that are in addition to or otherwise materially different from the County Ordinance.

4. Relationship of Parties / Independent Contractors
Each Party shall perform all work described herein as an independent contractor and not as an officer, agent, servant or employee of the other Party. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between the Parties other than that of independent parties contracting with each other for purpose of effecting the provisions of this Agreement. The Parties are not, and shall not be construed to be in a relationship of joint venture, partnership or employer-employee. Neither Party has the authority to make any statements, representations or commitments of any kind on behalf of the other Party, or to use the name of the other Party in any publications or advertisements, except with the written consent of the other Party or as is explicitly provided herein. Each Party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors, if any.

5. Term of Agreement
This Agreement is effective from the date that this Agreement is executed by all Parties, until terminated in accordance with this Agreement.

6. Payment
The City shall adopt, by reference, the County’s fee schedule for annual tobacco retail permits and tobacco retail permit applications. All annual permit fees and application fees for the tobacco retail permit program shall be collected and retained by the County.

The County shall advise City of the initial permit fee and application fee necessary to cover County’s anticipated costs under this Agreement. Thereafter, the County shall 114
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provide notice to the City and tobacco retail permit holders in the City of any increases or decreases in the cost of the County’s work under this Agreement and any need to revise permit fees and/or application fees accordingly.

7. Termination
Except as provided in paragraphs 3.1 and 3.2 above, which allow for immediate termination in the specified circumstances, either Party may terminate this Agreement for any reason upon ninety (90) days’ written notice. Upon service of a termination notice, the Parties shall use their best efforts to develop a mutually-agreeable plan for transition of the County’s responsibilities to the City. Upon termination of this Agreement, the City will be responsible for replacing the County-issued permits.

8. Indemnification and Insurance
In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the Parties pursuant to Government Code Section 895.6, the Parties agree that all losses or liabilities incurred by Party shall not be shared pro rata but, instead, County and City agree that, pursuant to Government Code Section 895.4, each of the Parties hereto shall fully indemnify and hold each of the other Parties, their officers, board members, employees, and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other Parties hereto, their officers, board members, employees, or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other Parties under this Agreement.

Without limiting the indemnification both Parties shall maintain or cause to be maintained the following insurance coverage: (1) a policy of commercial general liability with limits of liability not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate; (ii) a policy of workers’ compensation providing statutory coverage; (iii) a policy of professional or public officials errors and omissions liability with limits of liability not less than one million dollars ($1,000,000) per occurrence/aggregate; and (iv) such other insurance or self-insurance as shall be necessary to insure it against any claim or claims for damages arising under the Agreement. Each Party’s insurance afforded by the commercial general liability policy shall be endorsed to provide coverage to the other Party as an additional insured. A Certificate of Insurance certifying that coverage as required herein has been obtained to the other Party. The requirements of this section may be satisfied by the provision of similar coverage through a self-insurance program.
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9. Compliance with All Laws, Rules, Regulations, Policies and Procedures The Parties shall comply with all applicable federal, state and local laws, rules, regulations, policies and procedures.

10. Monitoring / Records

10.1 Monitoring
Each Party shall permit the other Party to monitor its performance of this Agreement. To the extent permitted by law, such monitoring may include, but not be limited to, audits and review of records related to this Agreement. Upon request, a Party shall provide the other Party with access to facilities, financial and employee records that are related to the purpose of the Agreement, except where prohibited by federal, state or local laws, regulations or rules. Monitoring shall be permitted at any time during normal business hours upon no less than 10 business days advance notice and may occur up to one year following termination of the Agreement.

Each Party shall designate a project director/coordinator responsible for overseeing that Party’s performance of this Agreement. Each Party shall notify the other Party in writing of the designation of the project director/coordinator and of any change thereto.

10.2 California Public Records Act
The Parties are public agencies subject to the disclosure requirements of the California Public Records Act (“CPRA”). In the event of a CPRA request for information related to this Agreement, each Party will use its best efforts to notify the other Party before such disclosure.

11. Representations and Warranties

11.1 Conflict of Interest
Each Party shall comply, and require its subcontractors to comply, with all applicable (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.). Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by either Party.

11.2 Authority
Each individual executing this Agreement on behalf of a Party represents that he or she is duly authorized to execute and deliver this Agreement on that Party’s behalf.
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12. Assignment, Delegation, Subcontracting
Neither Party may assign any of its rights, delegate any of its duties or subcontract any portion of its work or business under this Agreement without the prior written consent of the other Party, which such other Party may withhold in its sole and absolute discretion.

No assignment, delegation or subcontracting will release a Party from any of its obligations or alter any of its obligations to be performed under the Agreement.

13. Governing Law, Jurisdiction and Venue
This Agreement shall be construed and its performance enforced under California law. In the event that suit shall be brought by either Party to this Agreement, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara or, if federal jurisdiction is appropriate, exclusively in the United States District Court for the Northern District of California, in San Jose, California.

14. Waiver
No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a Party must be in writing, and shall apply to the specific instance expressly stated.

15. Notice
Any notice required to be given by either Party, or which either Party may wish to give, shall be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows:

If to COUNTY:

County of Santa Clara Public Health Department
Sara H. Cody, MD, Health Officer and Public Health
Director
976 Lenzen Avenue
San Jose, CA 95126
With a copy to:

Count of Santa Clara Public Health Department
Contracts and Compliance Unit
976 Lenzen Avenue, Second Floor
San Jose, CA 95126
If to City:

City of Cupertino
Office of the City Manager
Pamela Wu, City Manager
10300 Torre Avenue
Cupertino, CA 95014
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Either Party may designate a different person and/or address for the receipt of notices by sending written notice to the other Party. 117
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16. Third Party Beneficiaries
This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties.

17. Entire Agreement
This document represents the entire Agreement between the Parties with respect to the subject matter hereof. All prior negotiations and written and/or oral Agreements between the Parties with respect to the subject matter of this Agreement are merged into this Agreement.

18. Amendments
This Agreement may only be amended by a written instrument signed by the Parties.

19. Survival
The rights and duties under the following provisions shall survive the termination or expiration of this Agreement: Section 8 – Indemnification and Insurance; Section 10 – Monitoring/ Records; Section 11 – Conflicts of Interest; and Section 13 – Governing Law, Jurisdiction, and Venue, and in any instrument, certificate, exhibit, or other writing attached hereto and incorporated herein.

20. Severability
If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions and provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

21. Contract Execution
Unless otherwise prohibited by law or City or County policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the Parties. //
//
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//

22. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.

Signed:

County of Santa Clara: City of Cupertino
Gene Clark
Chief Procurement Officer
Date Pamela Wu
Cupertino City Manager
Date
Approved as to Form and Legality: Attest:

Jenny Lam
Deputy County Counsel
Date Kirsten Squarcia
Cupertino City Clerk
Date
Approved: Approved as to Form:

Sara H. Cody, MD
Health Officer and Public Health
Director
Date Christopher Jensen
Cupertino City Attorney
Date
Approved:

Tina Cordero
CSCHS Chief Fiscal Officer
Date
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First Amended and Restated Agreement between the County of Santa Clara and the City of Cupertino for a Tobacco Retail Permit Program
Exhibits to this Agreement:

Exhibit A: Scope of Work
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First Amended and Restated Agreement between the County of Santa Clara and the City of Cupertino for a Tobacco Retail Permit Program

EXHIBIT A

COUNTY OF SANTA CLARA AND CITY OF CUPERTINO TOBACCO RETAIL PERMIT PROGRAM – DESCRIPTION OF ROLES BY AGENCY
County of Santa Clara
Department of Environmental Health

1. Provide permit applications to all new retailers selling tobacco products in the City of Cupertino and issue permits to eligible applicants.

2. Ensure all existing tobacco retail permits that meet and maintain eligibility requirements are renewed on an annual basis.

3. Maintain database tracking system for all permitted tobacco retailers.

4. Provide list of permitted tobacco retailers to Public Health Department and City of Cupertino on an annual basis or more frequently as requested.

5. Collect required permit fees.

6. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2) develop/maintain policy and procedure for enforcement.

7. Conduct at least one annual inspection of tobacco retailers to ensure compliance with local, state, and federal laws (except sales to underage individuals).

8. Meet with all related personnel as necessary to: (1) coordinate post compliance check strategy; and (2) next steps for violations.

9. Conduct follow up inspections, including for complaints received by the public, if necessary, for ensuring compliance with the tobacco retail permit ordinance. Provide and promote a clear process for the public to file and track complaints for potential violations of the tobacco retail permit ordinance.

10. Respond to requests for information from Cupertino tobacco retailers and the public regarding requirements under the tobacco retail permit ordinance.

11. Keep records of inspection outcomes for each tobacco retailer and provide annual inspection report summaries to a single point of contact at the Public Health Department.

12. Take enforcement action, as appropriate, to address violations.

13. Notify the City of Cupertino when Notice of Violations (NOVs) are issued as a result of violations of the ordinance.

14. Issue NOVs per Ordinance and ensure the tobacco retailer corrects violations and executes all required corrections identified in the NOV.

15. Coordinate with the Office of County Hearing Officer as appropriate on hearings, including to supply information on violations where an appeal is requested.

Public Health Department

1. Provide initial list of tobacco retailers to Department of Environmental Health to send out permit applications.

2. Obtain lists from California Department of Tax and Fee Administration and monitor for any new retailers.

3. Provide on-going technical assistance to Department of Environmental Health on ordinance requirements. This may include trainings for inspectors, research on flavored and emerging products, and development of educational materials for tobacco retailers.

4. Map any new retailers to ensure they meet eligibility requirements related to distance from schools, distance from existing tobacco retailers, and that under the ordinance the retailer meets all other eligibility requirements.
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First Amended and Restated Agreement between the County of Santa Clara and the City of Cupertino for a Tobacco Retail Permit Program

5. If a business seeking a tobacco retail permit is deemed ineligible by the County due to ordinance requirements, including attaching any relevant documentation supporting the basis for business ineligibility (e.g. maps of business location; documentation of pharmacy license status; copies of 3 or more NOVs issued in a 60-month period.

6. Proactively engage the business community so that they are aware of the TRL ordinance (e.g., effective date, requirements, fines/penalties) as appropriate.

7. Coordinate with the Office of County Hearing Officer and County Counsel as appropriate on appeals hearings.

8. Provide an annual update to appropriate Cupertino staff on enforcement and compliance activities and outcomes for the program.

County Sheriff's Office

1. Conduct undercover decoy operations at tobacco retailers to ensure compliance with sales of tobacco products to underage individuals laws. Prior to performing operations, notify Department of Environmental Health of planned operation dates.

2. Issue citations for any violations of tobacco sales to underage individuals laws (e.g. PC § 308(a), Cupertino Municipal Code Chapter 5.50, CA Business and Professions Code § 22958).

3. Immediately notify the Department of Environmental Health on outcomes of enforcement operations within 3-5 days of the performed operation. Provide copies of all documentation associated with the violation: a copy of the citation, written reports/records, or any additional evidence of violation (e.g. receipts, photo copies of the product) to the Department of Environmental Health.

4. Coordinate with the Office of County Hearing Officer and County Counsel as appropriate on appeals hearings.

City of Cupertino
City Manager’s Office

1. Publish information on the City of Cupertino’s website on the TRP ordinance, for example: where tobacco retailers can get more information on the requirements for selling tobacco in Cupertino, and how the public can file a complaint or request more information about the TRP ordinance.

2. Act as a resource to other cities that may be interested in a similar partnership with the County.

3. Update ordinance as needed in collaboration with City Attorney and the County Departments.
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FIRST AMENDED AND RESTATEDAGREEMENT BETWEEN

THE COUNTY OF SANTA CLARA

AND CITY OF CUPERTINO FOR

A TOBACCO RETAIL PERMIT PROGRAM

This First Amended and Restated Agreement (“Agreement”) is entered into by and between the County of Santa Clara (“County”) and City of Cupertino (“City”) relating to administration and enforcement of a tobacco retail permit program in the City of Cupertino. County and City may be referred to in this Agreement individually as a “Party” and collectively as “Parties.”

Background / Purpose

In 2010, the County adoptedadded Chapter XXIII to Division A18 of its Ordinance Code (“Chapter XIII”), thereby an ordinance establishing a permit requirement for retailers of tobacco products in the unincorporated areas of the County of Santa Clara (“County Ordinance”). The County has since expanded the scope of Chapter XXIII and modified provisions therein. the County Ordinance, which is currently codified in Chapter XXII of Division B11 of the County Ordinance Code. On February 18, 2020, tThe City has adopted an ordinance to mirror the substantive provisions of the County Ordinance, which is currently codified in City Code Chapter 5.50 to mirror the provisions of Chapter XXIII in their entirety, effective July 1, 2020, and intends to continue updating City Code Chapter 5.50 to maintain consistency with Chapter XXIII.of the Cupertino Municipal Code (“City Ordinance”). The City and County intend for the County to administer and enforce the City’s tobacco retail permit program (as described in City Code Chapter

5.50) within the City, except as otherwise provided in this Agreement. The County intends to cite violators of the City’s Municipal Ordinance Code Chapter 5.50 pursuant to this Agreement. Terms used in this Agreement, such as, but not limited to, “tobacco products” and “retailer,” shall be interpreted in accordance with Chapter XXIII and City Code Chapter 5.50.

Agreement

The Parties agree as follows:

1. Designation
The City hereby designates the County of Santa Clara’s Department of Environmental Health and any agency or person designated by the Director of the Department of Environmental Health to enforce orand administer the City Ordinance. The Countyy shall act as the City’s designee “Department”, as defined in section 5.50.020(b) of the City Ordinance.

2. Scope of Work
Each Party shall perform the work as described in Exhibit A, attached hereto and incorporated herein by this reference.

3. Legislative Consistency
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The County’s administration and enforcement under this Agreement is contingent upon the City’s adoption and maintenance of a City Ordinance that is the same as the County Ordinance in all material respects.

3.1 Within 90 days of the County’s adoption of any material amendment to the County Ordinance, the City’s governing body shall consider and vote upon an amendment to the City Ordinance that is the same as the County’s amendment in all material respects.

If the City does not adopt such an amendment within 90 days of the County’s amendment to the County Ordinance, the County may, in its sole discretion, immediately terminate this Agreement by sending written notice to the City.

3.3 The County shall have no responsibility for administering or enforcing any provisions of the City Ordinance that are in addition to or otherwise materially different from the County Ordinance.

3.4 The Parties agree that the County Ordinance and City Ordinance effective on the date of this Agreement are the same in all material respects.

4. Relationship of Parties / Independent Contractors

Each Party shall perform all work described herein as an independent contractor and not as an officer, agent, servant or employee of the other Party. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between the Parties other than that of independent parties contracting with each other for purpose of effecting the provisions of this Agreement. The Parties are not, and shall not be construed to be, in a relationship of joint venture, partnership or employer-employee. Neither Party has the authority to make any statements, representations or commitments of any kind on behalf of the other Party, or to use the name of the other Party in any publications or advertisements, except with the written consent of the other Party or as is explicitly provided herein. Each Party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors, if any.

5. Term of Agreement

This Agreement is effective from the date that this Agreement is executed by all Parties, until terminated in accordance with this Agreement.

6. Payment
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The City shall adopt, by reference, the County’s fee schedule for annual tobacco retail permits and tobacco retail permit applications. All annual permit fees and application fees for the tobacco retail permit program shall be collected and retained by the County.

The County shall advise City of the initial permit fee and application fee necessary to cover County’s anticipated costs under this Agreement. Thereafter, the County shall provide notice to the City and tobacco retail permit holders in the City of any increases or decreases in the cost of the County’s work under this Agreement and any need to revise permit fees and/or application fees accordingly.

7. Termination

Except as provided in paragraphs 3.1 and 3.2 above, which allow for immediate termination in the specified circumstances, either Party may terminate this Agreement for any reason upon ninety (90) days’ written notice. Upon service of a termination notice, the Parties shall use their best efforts to develop a mutually agreeable plan for transition of the County’s responsibilities to the City. Upon termination of this Agreement, the City shall will be responsible for replacing the County-issued permits.

8. Indemnification and Insurance

The City shall indemnify, defend, and hold harmless the County, its officers, agents, and employees from any claim, liability, loss, injury, or damage arising out of, or in connection with, performance of this Agreement by the City and/or its agents, employees, or sub-contractors, excepting only loss, injury, or damage caused by the sole gross negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this Agreement to provide the broadest possible coverage for County. The City shall reimburse the County for all costs, attorneys’ fees, expenses, and liabilities incurred with respect to any litigation in which the City contests its obligation to indemnify, defend, and/or hold harmless the County under this Agreement and does not prevail in that contest. In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the Parties pursuant to Government Code Section 895.6, the Parties agree that all losses or liabilities incurred by Party shall not be shared pro rata but, instead, County and City agree that, pursuant to Government Code Section 895.4, each of the Parties hereto shall fully indemnify and hold each of the other Parties, their officers, board members, employees, and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other Parties hereto, their officers, board members, employees, or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other Parties under this Agreement.

not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate; (ii) a policy of workers’ compensation providing statutory coverage; (iii) a policy of professional or public officials errors and omissions liability with limits of liability not less than one million dollars ($1,000,000) per occurrence/aggregate; and (iv) such other insurance or selfinsurance as shall be necessary to insure it against any claim or claims for damages arising under the Agreement. Each Party’s insurance afforded by the commercial general liability policy shall be endorsed to provide coverage to the other Party as an additional insured. Each Party shall provide aA Certificate of Insurance certifying that coverage as required herein has been obtained to the other Party. The requirements of this section may be satisfied by the provision of similar coverage through a self-insurance program.

9. Compliance with All Laws, Rules, Regulations, Policies and Procedures

The Parties shall comply with all applicable federal, state, and local laws, rules, regulations, policies, and procedures.

10. Monitoring / Records

10.1 Monitoring
Each Party shall permit the other Party to monitor its performance of this Agreement. To the extent permitted by law, such monitoring may include, but not be limited to, audits and review of records related to this Agreement. Upon request, a Party shall provide the other Party with access to facilities, financial, and employee records that are related to the purpose of the Agreement, except where prohibited by federal, state, or local laws, regulations, or rules. Monitoring shall be permitted at any time during normal business hours upon no less than 10 business days advance notice and may occur up to one year following termination of the Agreement.

10.2 California Public Records Act
The Parties are public agencies subject to the disclosure requirements of the California Public Records Act (“CPRA”). In the event of a CPRA request for information related to this Agreement, each Party shall will use its best efforts to notify the other Party before such disclosure.

11. Conflict of InterestRepresentations and Warranties

11.1 Conflict of Interest
Both PartiesEach Party shall comply, and require its subcontractors to comply, with all applicable: (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of 126
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interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.).

Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by either Party.

In accepting this Agreement, each Party covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. Each Party further covenants that, in the performance of this Agreement, it shall not employ any contractor or person having such an interest. Each Party, including but not limited to each Party’s employees and subcontractors, may be subject to the disclosure and disqualification provisions of the California Political Reform Act of 1974 (the “Act”), that (1) requires such persons to disclose economic interests that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will foreseeably financially affect such interests. If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, each Party shall, upon execution of this Agreement, provide the other Party with the names, description of individual duties to be performed, and email addresses of all individuals, including but not limited to the Party’s employees, agents and subcontractors, that could be substantively involved in “making a governmental decision” or “serving in a staff capacity and in that capacity participating in making governmental decisions or performing duties that would be performed by an individual in a designated position,” (2 CCR 18701(a)(2)), as part of the Party’s service to the other Party under this Agreement. Each Party shall immediately notify the other Party of the names and email addresses of any additional individuals later assigned to provide such service under this Agreement in such a capacity. Each Party shall immediately notify the other Party of the names of individuals working in such a capacity who, during the course of the Agreement, end their service to the Party providing notice.

If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, each Party shall ensure that all such individuals identified pursuant to this section understand that they are subject to the Act and shall conform to all requirements of the Act and other laws and regulations listed in this subsection including, as required, filing of Statements of Economic Interests within 30 days of commencing service pursuant to this Agreement, annually by April 1, and within 30 days of their termination of service pursuant to this Agreement.

11.212. Authority

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Each individual executing this Agreement on behalf of a Party represents that he or she is duly authorized to execute and deliver this Agreement on that Party’s behalf.

13.12. Assignment, Delegation, Subcontracting

Neither Party may assign any of its rights, delegate any of its duties, or subcontract any portion of its work or business under this Agreement without the prior written consent of the other Party, which such other Party may withhold in its sole and absolute discretion. No assignment, delegation, or subcontracting shall release a Party from any of its obligations or alter any of its obligations to be performed under the Agreement.

134. Governing Law, Jurisdiction, and Venue

This Agreement shall be construed and its performance enforced under California law.

In the event that suit shall be brought by either Party to this Agreement, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara or, if federal jurisdiction is appropriate, exclusively in the United States District Court for the Northern District of California, in San Jose, California.

154. Waiver

No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a Party must be in writing, and shall apply to the specific instance expressly stated.

165. Notice

Any notice required to be given by either Party, or which either Party may wish to give, shall be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows:

If to COUNTY: If to CITY:

County of Santa Clara City of Cupertino
Public Health Department City Manager’s Office
Sara H. Cody, MD Pamela Wu
Health Officer and Public Health Director City Manager
976 Lenzen Avenue 10300 Torre Avenue
San Jose, CA 95126 Cupertino, CA, 95014

With a copy to:

Count of Santa Clara Public Health Department
Contracts and Compliance Unit
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976 Lenzen Avenue, Second Floor
San Jose, CA 95126
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Either Party may designate a different person and/or address for the receipt of notices by sending written notice to the other Party.

167. Third Party Beneficiaries

This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties.

178. Entire Agreement

This document represents the entire Agreement between the Parties with respect to the subject matter hereof. All prior negotiations and written and/or oral Agreements between the Parties with respect to the subject matter of this Agreement are merged into this Agreement.

189. Amendments

This Agreement may only be amended by a written instrument signed by the Parties.

1209. Survival

The rights and duties under the following provisions shall survive the termination or expiration of this Agreement: Section 8 – Indemnification and Insurance; Section 10 – Monitoring/Records; Section 11 – Conflicts of Interest; and Section 14 – Governing Law, Jurisdiction, and Venue, and in any instrument, certificate, exhibit, or other writing attached hereto and incorporated herein.

2120. Severability

If any term, covenant, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, covenants, conditions, and provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.

2221. Contract Execution

Unless otherwise prohibited by law or City or County policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is 129
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executed by applying an electronic signature using technology approved by the Parties.

23. Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates written below.

Signed:

County of Santa Clara: City of Cupertino
Gene Clark
Chief Procurement Officer
Date Pamela Wu
Cupertino City Manager
Date

Approved as to Form
and Legality:

Attest:

Jenny Lam
Deputy County Counsel
Date Kirsten Squarcia
Cupertino City Clerk
Date

Approved: Approved as to Form:

Sara H. Cody, MD
Health Officer and Public Health
Director
Date Christopher Jensen
Cupertino City Attorney
Date

Approved:

Tina Cordero
CSCHS Chief Fiscal Officer
Date
Exhibits to this Agreement:

Exhibit A: Scope of Work
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EXHIBIT A

COUNTY OF SANTA CLARA AND CITY OF CUPERTINO TOBACCO RETAIL PERMIT PROGRAM – DESCRIPTION OF ROLES BY AGENCY
County of Santa Clara
Department of Environmental Health

1. Send out Provide permit applications to all new retailers selling tobacco products in the City of Cupertino and issue permits to eligible applicants on an annual basis.

1.2.Ensure all existing tobacco retailers selling tobacco products in the City of Cupertino and issue permits to eligible applicantsretail permits that meet and maintain eligibility requirements are renewed on an annual basis.

2.3.Maintain database tracking system for all permitted tobacco retailers.

3.4.Provide list of permitted tobacco retailers to Public Health Department and County Sheriff’s OfficeCity of Cupertino on an annual basis or more frequently as requested.

5. Collect required permit fees.

6. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2) develop/maintain policy and procedure for enforcement.

4. 7. Conduct at least one annual inspection of tobacco retailers to ensure compliance with local, state, and federal laws (except sales to minorsunderage individuals).

8. Meet with all related personnel as necessary to: (1) coordinate post compliance check strategy; and (2) next steps for violations.

5. 9. Conduct follow up inspections, including for complaints received by the public, if necessary, for ensuring compliance with the tobacco retail permit ordinance. Provide and promote a clear process for the public to file and track complaints for potential violations of the tobacco retail permit ordinance.

10. Respond to requests for information from Cupertino tobacco retailers and the public regarding requirements under the tobacco retail permit ordinance.

6. 7.11. Keep records of inspection outcomes for each tobacco retailer and provide annual inspection report summaries to a single point of contact at the Public Health Department.

12. Take appropriate enforcement action, as appropriate, to address if a violations. is not corrected.

13. Notify the City of Cupertino when Notice of Violations (NOVs) are issued as a result of violations of the ordinance.

14. Issue NOVs per Ordinance and ensure the tobacco retailer corrects violations and executes all required corrections identified in the NOV.

8. 9. Coordinate with the County Sheriff’s Office when violations of sales to minors occur in order to take the appropriate enforcement action (may include fines and suspension of permit).

10.15. Coordinate with the Office of County Hearing Officer as appropriate on hearings, including to supply information on violations where an appeal is requested.

Public Health Department

1. Provide initial list of tobacco retailers to Department of Environmental Health to send out permit applications.

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2. Obtain lists from California Department of Tax and Fee Administration and Cupertino Business Licensing Office* to establish current list of tobacco retailers and monitor for any new retailers.

3.4.Map any new retailers to ensure they meet eligibility requirements related to distance from schools, distance from existing tobacco retailers, and that under the ordinance the retailer meets all other eligibility requirements.

5. Notify the Department of Environmental Health and Cupertino Business Licensing Office* iIf a business seeking is ineligible for a tobacco retail permit is deemed ineligible by the County due to the ordinance requirements, including attaching any relevant documentation supporting the basis for business ineligibility (e.g. maps of business location; documentation of pharmacy license status; copies of 3 or more NOVs issued in a 60-month period.

4.6..

5.7.Proactively engage the business community so that they are aware of the TRL ordinance (e.g., effective date, requirements, fines/penalties) as appropriate.

6. Respond to requests for information from Cupertino tobacco retailers and the public regarding requirements under the Tobacco Retail Permit ordinance.

7. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2) develop/maintain policy and procedure for enforcement.

8. Meet with all related personnel as necessary to: (1) coordinate post-compliance check strategy; and (2) next steps for violators.

9.8.Coordinate with the Office of County Hearing Officer as appropriate on hearings.

10.9. Provide an annual update to appropriate Cupertino staff on enforcement and compliance activities and outcomes for the program.

County Sheriff’s Office

1. Conduct undercover decoy operations targeting tobacco retailers. to ensure compliance with sales of tobacco products to underage individuals laws. Prior to performing operations, notify Department of Environmental Health of planned operation dates.

2. Issue citations for any violations of tobacco sales to underage individuals laws (e.g. PC § 308(a), Cupertino Municipal Code Chapter 5.50, CA Business and Professions Code § 22958).violations of PC § 308(a).

3. Immediately notify the County (Department of Environmental Health and Public Health) on outcomes of enforcement operations within 3-5 days of the performed operation. Provide copies of all documentation associated with the violation: a copy of the citation, written reports/records, or any additional evidence of violation (e.g. receipts, photo copies of the product) to the Department of Environmental Health., particularly when violations of PC § 308(a) occur.

4. Provide documentation for the violation, including a copy of the citation, any additional report, written record, or evidence of violation to the Department of Environmental Health and Public Health.

5.4.Provide enforcement report summaries to a point of contact at the Public Health Department and Department of Environmental Health.Coordinate with the Office of County Hearing Officer and County Counsel as appropriate on appeals hearings.

City of Cupertino
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Business Licensing Office *

1. Route business licensing applications for any new tobacco retailers to a designated contact at the County Public Health Department to determine permit eligibility. Any business that sells tobacco products is subject to the requirements under the Tobacco Retail Permit ordinance.

2. Route new and renewal applications to County Public Health and Environmental Health to ensure there has not been a change in ownership at the business.

City Manager’s Office

1. Publish information on the City of Cupertino’s website on the TRP ordinance, for example:
where tobacco retailers can get more information on the requirements for selling tobacco in Cupertino, and how the public can file a complaint or request more information about the TRP ordinance.

1. Provide information on the City of Cupertino’s website where tobacco retailers can get more information on the requirements for selling tobacco in Cupertino.

2. Act as a resource to other cities that may be interested in a similar partnership with the County.

3. Update ordinance as needed in collaboration with City Attorney and the County Counsel’s Office.Departments.
*Business Licensing Office is a program within the Finance Division, which is within the Administrative Services Department in Cupertino.
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CITY OF CUPERTINO
Agenda Item
23-12506 Agenda Date: 4/3/2024
Agenda #: 7.

Subject: Amendment to a Development Agreement for the Cupertino Village Boutique Hotel Project from five to eight years and associated environmental review. (Application No(s): DA-2023-002; Applicant(s): KIMCO (Sunil Plaha); Location: 10801 and 10805 N. Wolfe Rd.; APN: 316 45 017, 316 05 056)
That the City Council conduct the public hearing and conduct the first reading of Ordinance No. 24- 2258, entitled: "APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL" (Attachment A):

1. Find the amendment to the existing development agreement consistent with the project's Mitigated Negative Declaration (State Clearinghouse No. 2018112025) and

2. Adopt the ordinance to amend the existing Development Agreement (DA-2023-002).

Presenter: Gian Martire, Senior Planner
CITY OF CUPERTINO Page 1 of 1 Printed on 3/27/2024
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CITY COUNCIL STAFF REPORT
Meeting: April 3, 2024
Subject
Amendment to a Development Agreement for the Cupertino Village Boutique Hotel Project from five to eight years and associated environmental review. (Application No(s):

DA-2023-002; Applicant(s): KIMCO (Sunil Plaha); Location: 10801 and 10805 N. Wolfe Rd.; APN: 316 45 017, 316 05 056)
Recommended Actions
That the City Council conduct the public hearing and conduct the first reading of Ordinance No. 24-_____ (Attachment A):

1. Find the amendment to the existing development agreement consistent with the project's Mitigated Negative Declaration (State Clearinghouse No. 2018112025) and

2. Adopt the ordinance to amend the existing Development Agreement (DA-2023-002).

Reasons for Recommendation
Project Data:

General Plan Designation: Commercial/Residential
Special Area: North Vallco Park Special Area
Zoning Designation: P (CG, Res) Planned Development Zoning with General Commercial and Residential Uses
Project Consistency with
General Plan: Yes
Zoning: Yes
Environmental Assessment: Mitigated Negative Declaration (State Clearinghouse No. 2018112025)
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Cupertino Village Boutique Hotel April 3, 2024
DA-2023-002 10801 N. Wolfe Rd. Page 2
Background
The project site is located
on the west side of N. Wolfe
Rd. between Interstate 280
and Homestead Road, in
the North Vallco Park
Special Area. The land uses
allowed along N. Wolfe
Rd., between Interstate 280
and the shared city
boundary with Sunnyvale,
include residential, Office,
and commercial (which
allow hotel uses with a
Conditional Use Permit).

The site is currently developed with two commercial buildings: a 3,385-sq.-ft. building currently occupied by the Duke of Edinburgh Pub and Restaurant, and a vacant 10,044- sq.-ft. commercial building (former bank). Land uses surrounding the project include the Cupertino Village Shopping Center to the north, residential apartments (Arioso Apartments) to the west, a hotel to the south (Hilton Garden Inn), and office (Apple Park) and residential apartments (Hamptons Apartments) to the west.

Application Request
On July 16, 2019, the City Council approved a General Plan Amendment (GPA-2017-05, Resolution No. 19-091), a Development Permit (DP-2018-04, Resolution No. 19-092) an Architectural and Site Approval Permit (ASA-2017-09, Resolution No. 19-093), a Use Permit (U-2018-03, Resolution No. 19-095), Mitigated Negative Declaration (EA-2017-06, Resolution No. 19-090), Tree Removal Permit (TR-2017-46, Resolution No. 19-094), and subsequently on August 20, 2019, conducted the second reading to adopt a Development Agreement (Attachment 2 – DA-2017-01, Ordinance No. 19-2186) to allow construction of the following development and site improvements:
 A new five-story, 185-room upscale hotel;
 New restaurant with separate bar on the ground floor;  Rooftop lounge with separate bar;
 Conference Meeting Rooms; and
 Updated landscaping along the perimeter of the property, including updated frontage improvements to provide pedestrian accessibility.

Apple
Park
Cupertino Village
Shopping Center
The
Hamptons
Arioso
Apartments
Hilton
Garden
Inn
Figure 1 Site aerial N. Wolfe Rd.
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The applicant, Sunil Plaha of KIMCO, applied to amend the approved Development Agreement (DA-2023-002) to extend the total term three years, from five years to eight.

If the amendment is not approved, the project approval entitlement would expire on November 19, 2024.

Planning Commission Recommendation
The Planning Commission convened at a regular scheduled hearing on March 12, 2024, to consider the proposed amendment to a Development Agreement. The Planning Commission recommended (4-0, Madhdhipatla absent) that City Council adopt the proposed amendments to the Development Agreement as indicated in Exhibit A of Planning Commission Resolution No. 2024-02 (Attachment B), with the following modification:
 Development Agreement to require that the project comply with the bird safe and dark sky ordinance, Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards.

The Planning Commission’s recommended modifications have been incorporated into the Draft Ordinance (Attachment A).

Discussion
Development Agreement
In May 2015, the City Council adopted a process by which the Council would authorize projects proposing General Plan Amendments, taking into consideration voluntary community amenities in four categories (School Resources, Public Open Space, Public Facilities, Transportation Facilities) offered with a proposal to request the City consider changing its General Plan. The Development Agreement approved with the Village project includes voluntary community amenities offered by the project applicant through this General Plan Amendment Authorization process. These voluntary community amenities were incorporated as terms of the Development Agreement, which also included terms that offered the conventional certainty regarding regulations, standards, and conditions that would apply to the project during the life of the Development Agreement. The Development Agreement has a five-year term, ending on November 19, 2024.

Impact fees that are standard or required, such as housing and school fees, are not included in the consideration of voluntary community amenities. Voluntary community amenities are characterized as voluntary contributions rather than required fees or requirements. The voluntary community amenities included in the Development 138
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Agreement are outlined below. Key provisions from the 2019 Development Agreement include:

1. Community Amenity Funding: The Developer agreed to pay the City $1,850,000 ($10,000 per room) that may be used to benefit residents, businesses, and visitors, including on projects that will enhance and enrich the experience of the most proximate City residents, retail and restaurant customers, and hotel guests.

Candidates to receive these funds include local transportation facilities, Transportation Management Association start-up costs, local public art, and landscaping beautification improvements in public parks, parkways, or roadway medians. To date, the applicant has made $300,000 in payments as obligated.

2. Transportation Demand Management (TDM) Program: The Developer agreed to fund and fully implement a TDM program including transit passes, rideshare facilitation, and bicycle facilities.

3. Transportation Management Association (TMA): In the event a TMA is formed, The developer agreed to pay an annual participation fee, which initially shall not exceed $10,000 and may be increased annually by the Consumer Price Index.

4. Shuttle Service: The Developer agreed to provide access to a shuttle service to hotel guests, people traveling to or from the hotel that use the hotel’s meeting rooms for functions, and, subject to availability, nearby residents, businesses, and the general public to travel between the hotel and airports and major employment centers.

5. Meeting Rooms: The Developer agreed to allow the City to use the hotel’s meeting rooms for official City business purposes, subject to availability.

6. Reduced Rates: All people visiting Cupertino for official City business, and dignitaries visiting for City purposes and events, the Developer agreed reduced room rates by at least 10% lower than the hotel’s lowest rates.

7. Internships: The Developer agreed to offer non-paid educational internships to students from the Fremont High School District, De Anza College or other local colleges interested careers in the hospitality industry.

8. Minimum Hotel Standard: The Developer committed to maintaining the project as an upscale boutique hotel, which means that the hotel will charge higher rates and provide superior amenities to most hotels.

The applicant is requesting to extend the total term from five years to eight. As described in the applicant’s justification letter (Attachment 3), various factors have contributed to the delay in applying for Building Permits to construct the entitled hotel. Per the justification letter, the lingering effects of the COVID pandemic, which include prices of goods and materials, as well as the business travel industry (which is generally a significant portion of the hotel guests in Cupertino) being slow to recover from 139
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employees not required to return in-person fulltime have affected the hospitality industry. Other extenuating circumstances, such as the increased cost in financing have escalated costs of development.

Once operational, the project is expected to generate net positive fiscal impacts to the City’s annual budget due to the collection of Transient Occupancy Taxes (TOT) and property tax increases is estimated to be $1.2 million a year. As such, City staff has negotiated with the applicant the following amendments to the development agreement to ensure development of the project as approved by City Council:
 The term of the agreement of the agreement extended to the (8th) anniversary of the Effective Date (November 19, 2027).
 In the event the Developer submits for a Building Permit for the core and shell of the hotel within three years of the Effective Date of the 1st Amendment, the Term of the agreement is automatically extended for two additional years, for a total of five years, i.e., until November 19, 2029.
 If Certificate of Occupancy for the Project is issued within five years of the Effective Date of the First Amendment (April 16, 2029) Developer shall be relieved of its obligations to make further Community Amenity Funding payments.  Any proposed revisions to the amount of parking and/or parking layout, are treated as an Administrative Project Amendment and not subject to an amendment to this agreement.

Staff Analysis
The proposed amendments to the Development Agreement as listed above allow for the developer to submit for building permits at a time that is economically feasible. General Plan Strategy LU-9.1.3: Economic Development and Business Retention encourages the City to attract new businesses and retain existing businesses that add to municipal revenues, and contribute to economic vitality to the community. Adding incentives to the Development Agreement for the completion and occupancy of the hotel will add much needed TOT and sales tax revenue to the City’s general fund.

Lastly, by streamlining a process for parking modifications by not requiring further amendments to the Development Agreement, the developer is able to save on costs, and timing to encourage the development of the Hotel.

The amendments to the Development Agreement do not revise the scope of the project.

The developer will continue to be obligated to meet all other agreements for voluntary community amenities, as well as compliance with all approved aspects of applicable General Plan standards and other development regulations. The developers of the project have further indicated that they have no objections to the Planning Commission’s 140
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recommended modification requiring that the project comply with the bird safe and dark sky ordinance.

Cupertino Municipal Code Findings
The Cupertino Municipal Code includes ‘findings’ for approval of various permits necessary to approve the proposed project. These provide a framework for making decisions and facilitating an orderly analysis of the review of a project. Listed below are the findings for the Development Agreement sought by the applicant that the City must make in rendering a decision whether to grant an exception on this project.

Development Agreement (CMC 19.144.110)
A. Is consistent with the objectives, policies, general land uses and programs specified in the General plan and any applicable specific plan;
General Plan Strategy LU-9.1.3: Economic Development and Business Retention – Encourages the City attract new businesses and retain existing businesses that provide local shopping and services, add to municipal revenues, contribute to economic vitality, and enhance the City’s physical environment. Approving the requested amendment supports and facilitates a potential revenue generating use for the City, with added community benefits that include restaurant and community shuttle services. Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091).

B. Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is or will be located; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017- 05, Resolution No. 19-091).

C. Is in conformity with and will promote public convenience, general welfare and good land use practice;
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017- 05, Resolution No. 19-091). Extending the expiration of the Development Agreement, or future revisions to the amount of parking and/or parking layout, to be treated as an 141
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Administrative Project Amendment will not be at odds with promoting public convenience, general welfare and good land use practice.

D. Will not be detrimental to the health, safety and general welfare; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017- 05, Resolution No. 19-091). Further, on July 16, 2019, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2018112025, and approved the project. The Development Agreement extends the term of the entitlement up to eight years from the original entitlement, with no changes to the development scope.

E. Will not adversely affect the orderly development of property or the preservation of property values; and
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017- 05, Resolution No. 19-091). The treatment of the amount of parking or revisions to the parking layout as an Administrative Amendment would not affect the orderly development of the property or the preservation of property values.

F. Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017- 05, Resolution No. 19-091). An extension in the number of years for which the project entitlement is valid for and a reduction in the voluntary community amenity payments would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

Public Outreach and Noticing
The following table is a brief summary of the noticing done for this project:
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Notice of Public Hearing and Intent, Site
Notice & Legal Ad
Agenda
 Site Signage (10 days prior to the hearing)
 Legal ad placed in newspaper (at least 10 days
prior to the hearing)
 Public hearing notices were mailed to
property owners within 300 feet (10 days prior
to the hearing)
 Posted on the City’s official notice
bulletin board (one week prior to the
hearing)
 Posted on the City of Cupertino’s
website (one week prior to the
hearing)
Public Comments
Please refer to Attachment E for public comments.

Fiscal Impacts
The project will generate net positive fiscal impacts to the City’s annual budget due to the collection of Transient Occupancy Taxes (TOT) and property tax increases. This is estimated to be $1.2 million a year. As previously mentioned, to ensure collection of the TOT, a condition on the project is that reservations may not be made that exceed 29 consecutive nights of stay. Further, onetime payments in the form of impact and permit fees, as well as construction tax are estimated to be $2.8 million, of which $1.8 million would be allocated to the City’s BMR fund.

However, if Certificate of Occupancy for the Project is issued within five years of the Effective Date of the First Amendment, the Developer will be relieved of its obligations to make further Community Amenity Funding payments, or approximately up to $1.3 million.

Sustainability Impacts
The project will incorporate a green roof on the second floor and is designed to achieve LEED silver. Further, via the City’s Zero Waste Policy will require that the project recover and divert at least 65 percent of the construction waste generated by the project. Further, complying with the bird safe and dark sky ordinance, Cupertino Municipal Code Chapter

19.102: Glass and Lighting Standards, will ensure that lighting will be energy efficient.

California Environmental Quality Act
On July 16, 2019, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2018112025, and approved the project.

The Development Agreement extends the term of the entitlement up to eight years from the original entitlement, with no changes to the development scope. Therefore, the 143
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amended Development Agreement is in conformance with the previously adopted Mitigated Negative Declaration.

Under CEQA guidelines Section 15162, no further environmental review is necessary since there are (1) no substantial changes to the project requiring major revisions to the MND because of new or substantially increased significant environmental effects of the project; (2) no substantial changes in circumstances requiring major revisions to the MND because of new or substantially increased significant environmental effects of the project; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the MND; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the MND would substantially reduce significant effects.

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Piu Ghosh, Planning Manager
Luke Connolly, Assistant Director of Community Development Benjamin Fu, Director of Community Development
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Ordinance
B – Planning Commission Resolution No. 2024-03
C- Ordinance No. 19-2186
D- Justification Letter
E – Public Comments
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ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT

FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL
In accordance with Cupertino Municpal Code Section 19.144.110 Development Agreement, the City Council of the City of Cupertino finds that the amendments to a Development Agreement (DA-2017-01):

A. Is consistent with the objectives, policies, general land uses and programs specified in the General plan and any applicable specific plan; General Plan Strategy LU-9.1.3: Economic Development and Business Retention – Encourages the City attract new businesses and retain existing businesses that provide local shopping and services, add to municipal revenues, contribute to economic vitality, and enhance the City’s physical environment. Approving the requested amendment supports and facilitates a potential revenue generating use for the City, with added community benefits that include restaurant and community shuttle services. Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA2017-05, Resolution No. 19-091).

C. Is in conformity with and will promote public convenience, general welfare and good land use practice;
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment 145
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(GPA-2017-05, Resolution No. 19-091). Extending the expiration of the Development Agreement, or future revisions to the amount of parking and/or parking layout, to be treated as an Administrative Project Amendment will not be at odds with promoting public convenience, general welfare and good land use practice.

D. Will not be detrimental to the health, safety and general welfare; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). Further, on July 16, 2019, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2018112025, and approved the project. The Development Agreement extends the term of the entitlement up to eight years from the original entitlement, with no changes to the development scope.

E. Will not adversely affect the orderly development of property or the preservation of property values; and
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). The treatment of the amount of parking or revisions to the parking layout as an Administrative Amendment would not affect the orderly development of the property or the preservation of property values.

F. Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). An extension in the number of years for which the project entitlement is valid for and a reduction in the voluntary community amenity payments would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:
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SECTION 1. Adoption.

The Development Agreement is amended as set forth in Attachment A.

SECTION 2: Severability and Continuity.

The City Council declares that each section, sub‐section, paragraph, sub‐paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub‐section, paragraph, sub‐paragraph, sentence, clause and phrase of this ordinance. If any section, sub‐section, paragraph, sub‐paragraph, sentence, clause or phrase of this ordinance is held invalid, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of such portion, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as an amendment to or readoption of the earlier provisions.

SECTION 3: California Environmental Quality Act.

The City Council declares that no further environmental review is necessary under CEQA Guidelines section 15162 and that the amendment to the Development Agreement is in conformance with the previously adopted Mitigated Negative Declaration (State Clearinghouse No. 2018112025).

SECTION 4: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.

SECTION 5: Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

Pursuant to Government Code Section 36933, a summary of this Ordinance may be prepared by the City Clerk and published in lieu of publication of the entire text.

The City Clerk shall post in the office of the City Clerk a certified copy of the full text of the Ordinance listing the names of the City Council members voting for and against the ordinance.
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INTRODUCED at a special meeting of the Cupertino City Council on Aprl 3, 2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16, 2024 by the following vote:

Members of the City Council
AY
ES:

NO
ES:

ABSENT:

ABSTAIN:

SIGNED:

Sheila Mohan, Mayor
City of Cupertino
Date
ATTEST:

Kirsten Squarcia, City Clerk Date
APPROVED AS TO FORM:

Christopher D. Jensen, City Attorney Date
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
Attention: City Manager
Record for the Benefit of
The City of Cupertino
Pursuant to Government Code
Section 27383
Space Above Reserved for Recorder’s Use Only

FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY

OF CUPERTINO AND CUPERTINO VILLAGE LP FOR THE CUPERTINO VILLAGE

BOUTIQUE HOTEL
This First Amendment to Development Agreement ("Amendment No. 1") is made by and between the CITY OF CUPERTINO, a municipal corporation (the "City") and Northwest Properties, a California Limited Partnership ("Developer"), and is dated for reference purposes as of _____________.

RECITALS
A. City and Developer entered into a Development Agreement dated November 19, 2019 and recorded in the Official Records against certain property described in Exhibit A (the "Project Site") identified as Document No. _________ ("Development Agreement"). Any capitalized term used in this Amendment No. 1 that is not defined will have the meaning given to such term in the Development Agreement.

B. The Parties acknowledge that Developer has performed all obligations required under the Development Agreement as of the date of this Amendment No. 1, including providing payments as described in Section 5.1.1.1.

C. The Parties now wish to amend the Development Agreement as set forth below.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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ATTACHMENT A

AGREEMENT

1. TERM OF AGREEMENT. Section 2.2 of the Development Agreement is hereby revised and restated as follows: “The ‘Term’ of this Agreement shall commence on the Effective Date and shall expire on the eight (8th) anniversary of the Effective Date, unless earlier terminated or extended by mutual written consent of the Parties hereto in accordance with the requirements of Section 8.1, below.”

2. DEVELOPMENT OF THE PROPERTY. The Development Agreement shall be amended to include a new Section 3.4.2.1, which shall read as follows::
“Developer agrees to comply with the bird safe and dark sky ordinance, Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards.”

3. COMMUNITY AMENITY FUNDING. Subsection 5.1.1 of the
Development Agreement is hereby revised and restated as follows: “Community Amenity Funding. Developer agrees to pay City Ten Thousand Dollars ($10,000.00) for each hotel room constructed for an estimated total of One Million Eight Hundred Fifty Thousand Dollars ($1,850,000.00) in installments as described below, for City’s use in the City Council’s discretion subject to the following suggested guidelines (“Community Amenity Payment”), which payment shall be in addition to any Impact Fees otherwise due. Once paid, each installment of the Community Amenity Payment shall be nonrefundable, except as provided in Section 5.1.1.2 below. In the event City actions or conditions (including, but not limited to, conditions of the Project Approvals, interpretations of City ordinances, regulations and/or policies, and imposition of applicable building code requirements) regarding the Project Approvals cause the Project to be finally approved with fewer than 185 hotel rooms, the total Community Amenity Payment shall be Ten Thousand Dollars ($10,000.00) multiplied by the number of hotel rooms approved for construction; provided, the Community Amenity Payment shall not be reduced if Developer elects to voluntarily reduce the number of hotel rooms.

5.1.1.1 The Community Amenity Payment shall be made in installments as follows:
(1) Within ninety (90) days after the Effective Date, Developer shall pay City a first installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(2) On or before December 1st of each year, beginning on the first December 1 st after the Effective Date, , as part of each annual review and together with 150
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submission of the Annual Review Form, Developer shall pay City an installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(3) In the event the Developer submits for a Building Permit for the core and shell of the hotel within three (3) years of the Effective Date of the 1st Amendment, the Term of the agreement is automatically extended for two additional years, for a total of five years. Otherwise, the Term is only extended for three years. (4) If Certificate of Occupancy for the Project is issued within five (5) years of the Effective Date of the First Amendment, Developer shall be relieved of its obligations to make further payments under Section 5.1.1.1. Nothing in this section shall constitute a refund of prior payments made under this Development Agreement.
(5) In the event of a Litigation Challenge (described below in Section 9.3), all unpaid Community Amenity Payment installments shall be postponed until final resolution of the Litigation Challenge.”

4. ADMINISTRATIVE PROJECT AMENDMENTS. Subsection 8.2.1 of the Development Agreement is hereby revised and restated as follows: “Upon Developer’s written request for an amendment or modification to the Project Approvals or Subsequent Approvals, the City Manager shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the City Manager or his/her designee finds, in his or her sole discretion, that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the MND, the amendment or modification shall be determined to be an “Administrative Project Approval Amendment” and shall not require an amendment to this Agreement. Upon the City Manager’s approval, any Administrative Project Amendment shall be automatically incorporated into the applicable Project Approvals and this Agreement. Without limiting the foregoing, and by way of example, after City approval of the Existing Approvals, Developer requests for lot line adjustments, minor changes in improvement plans, minor changes in land uses involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle access points, changes in the amount of parking and parking layout, changes in pathway alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the infrastructure connections, facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Site Map or 151
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Property Description may be treated as Administrative Project Amendments.”

5. MISCELLANEOUS. •
a. Incorporation. This Amendment No. 1 constitutes a part of the Development Agreement and any reference to the Development Agreement shall be deemed to include a reference to the Development Agreement as amended by this Amendment No. 1.
b. Effective Date. This Amendment No. 1 shall be effective on the date that it is signed by both Parties and recorded in the Official Records. c. Ratification. To the extent of any inconsistency between this Amendment No. 1 and the Development Agreement, the provisions contained in this Amendment No. 1 shall control. As amended by this Amendment No. 1, all terms, covenants, conditions, and provisions of the Development Agreement shall remain in full force and effect.
d. Governing Law. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of California. e. Integration. This Amendment No. 1 contains the entire agreement between the Parties with respect to the subject matter of this Amendment No. 1. Any prior correspondence, memoranda, agreements, warranties, or representations relating to such subject matter are superseded in total by this Amendment No. 1.

NOW THEREFORE, the parties hereto have executed this Amendment No. 1 as of the date set forth above.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.

CITY:

CITY OF CUPERTINO, a municipal
corporation
By:

Pamela Wu, City Manager
[Signature must be notarized]
ATTEST:

By:

Kirsten Squarcia, City Clerk
APPROVED AS TO FORM:

By:

Christopher D. Jensen, City
Attorney
DEVELOPER:

CUPERTINO VILLAGE LP,
a California limited partnership
By:

Name
:

Its:

By:

Name
:

Its:
[Signatures must be notarized]
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CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 2024-02

OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO

RECOMMENDING THAT THE CITY COUNCIL APPROVE

AN AMENDMENT TO A DEVELOPMENT AGREEMENT

FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL PROJECT
LOCATED AT 10801 AND 10805 N WOLFE ROAD
The Planning Commission recommends that the City Council find the amendment to the Development Agreement (DA-2023-02) consistent with the project’s Mitigated Negative Declaration and approve the amendment to the existing Development Agreement (DA-2017- 01), in substantially similar form to the Draft Ordinance attached hereto as Exhibit DA, with the following modification:
• Development Agreement to require that the project comply with the bird safe and dark sky ordinance, Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards.

PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City of Cupertino the 12th day of March 2024, by the following roll call vote:

AYES: COMMISSIONERS: Fung, Lindskog, Mistry, Scharf
NOES: COMMISSIONERS:

ABSTAIN: COMMISSIONERS:

ABSENT: COMMISSIONERS: Madhdhipatla
ATTEST: APPROVED:
/s/Piu Ghosh /s/David Fung______________
Piu Ghosh David Fung
Planning Manager Chair, Planning Commission
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EXHIBIT DA
ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT

C. Is in conformity with and will promote public convenience, general welfare and good land use practice;
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). Extending the expiration of the Development 155
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Agreement, or future revisions to the amount of parking and/or parking layout, to be treated as an Administrative Project Amendment will not be at odds with promoting public convenience, general welfare and good land use practice.

D. Will not be detrimental to the health, safety and general welfare; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). Further, on July 16, 2019, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2018112025, and approved the project. The Development Agreement extends the term of the entitlement up to eight years from the original entitlement, with no changes to the development scope.

E. Will not adversely affect the orderly development of property or the preservation of property values; and
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). The treatment of the amount of parking or revisions to the parking layout as an Administrative Amendment would not affect the orderly development of the property or the preservation of property values.

F. Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). An extension in the number of years for which the project entitlement is valid for and a reduction in the voluntary community amenity payments would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:
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SECTION 1. Adoption.

The Development Agreement is amended as set forth in Attachment A.

SECTION 2: Severability and Continuity.

SECTION 3: California Environmental Quality Act.

SECTION 4: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.

SECTION 5: Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

Pursuant to Government Code Section 36933, a summary of this Ordinance may be prepared by the City Clerk and published in lieu of publication of the entire text.

The City Clerk shall post in the office of the City Clerk a certified copy of the full text of the Ordinance listing the names of the City Council members voting for and against the ordinance.
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INTRODUCED at a regular meeting of the Cupertino City Council on Aprl 16, 2024 and ENACTED at a regular meeting of the Cupertino City Council on May___, 2024 by the following vote:

Members of the City Council
AY
ES:

NO
ES:

ABSENT:

ABSTAIN:

SIGNED:

Sheila Mohan, Mayor
City of Cupertino
Date
ATTEST:

Kirsten Squarcia, City Clerk Date
APPROVED AS TO FORM:

Christopher D. Jensen, City Attorney Date
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ATTACHMENT A

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY

OF CUPERTINO AND CUPERTINO VILLAGE LP FOR THE CUPERTINO VILLAGE

C. The Parties now wish to amend the Development Agreement as set forth below.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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AGREEMENT

2. COMMUNITY AMENITY FUNDING. Subsection 5.1.1 of the
Development Agreement is hereby revised and restated as follows: “Community Amenity Funding. Developer agrees to pay City Ten Thousand Dollars ($10,000.00) for each hotel room constructed for an estimated total of One Million Eight Hundred Fifty Thousand Dollars ($1,850,000.00) in installments as described below, for City’s use in the City Council’s discretion subject to the following suggested guidelines (“Community Amenity Payment”), which payment shall be in addition to any Impact Fees otherwise due. Once paid, each installment of the Community Amenity Payment shall be nonrefundable, except as provided in Section 5.1.1.2 below. In the event City actions or conditions (including, but not limited to, conditions of the Project Approvals, interpretations of City ordinances, regulations and/or policies, and imposition of applicable building code requirements) regarding the Project Approvals cause the Project to be finally approved with fewer than 185 hotel rooms, the total Community Amenity Payment shall be Ten Thousand Dollars ($10,000.00) multiplied by the number of hotel rooms approved for construction; provided, the Community Amenity Payment shall not be reduced if Developer elects to voluntarily reduce the number of hotel rooms.

5.1.1.1 The Community Amenity Payment shall be made in installments as follows:
(1) Within ninety (90) days after the Effective Date, Developer shall pay City a first installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(2) On or before December 1st of each year, beginning on the first December 1 st after the Effective Date, , as part of each annual review and together with submission of the Annual Review Form, Developer shall pay City an installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(3) In the event the Developer submits for a Building Permit for the core and shell of the hotel within three (3) years of the Effective Date of the 1st Amendment, the 160
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Term of the agreement is automatically extended for two additional years, for a total of five years. Otherwise, the Term is only extended for three years. (4) If Certificate of Occupancy for the Project is issued within five (5) years of the Effective Date of the First Amendment, Developer shall be relieved of its obligations to make further payments under Section 5.1.1.1. Nothing in this section shall constitute a refund of prior payments made under this Development Agreement.
(5) In the event of a Litigation Challenge (described below in Section 9.3), all unpaid Community Amenity Payment installments shall be postponed until final resolution of the Litigation Challenge.”

3. ADMINISTRATIVE PROJECT AMENDMENTS. Subsection 8.2.1 of the Development Agreement is hereby revised and restated as follows: “Upon Developer’s written request for an amendment or modification to the Project Approvals or Subsequent Approvals, the City Manager shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the City Manager or his/her designee finds, in his or her sole discretion, that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the MND, the amendment or modification shall be determined to be an “Administrative Project Approval Amendment” and shall not require an amendment to this Agreement. Upon the City Manager’s approval, any Administrative Project Amendment shall be automatically incorporated into the applicable Project Approvals and this Agreement. Without limiting the foregoing, and by way of example, after City approval of the Existing Approvals, Developer requests for lot line adjustments, minor changes in improvement plans, minor changes in land uses involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle access points, changes in the amount of parking and parking layout, changes in pathway alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the infrastructure connections, facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Site Map or Property Description may be treated as Administrative Project Amendments.”

4. MISCELLANEOUS. •
a. Incorporation. This Amendment No. 1 constitutes a part of the Development Agreement and any reference to the Development Agreement shall be 161
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deemed to include a reference to the Development Agreement as amended by this Amendment No. 1.
b. Effective Date. This Amendment No. 1 shall be effective on the date that it is signed by both Parties and recorded in the Official Records. c. Ratification. To the extent of any inconsistency between this Amendment No. 1 and the Development Agreement, the provisions contained in this Amendment No. 1 shall control. As amended by this Amendment No. 1, all terms, covenants, conditions, and provisions of the Development Agreement shall remain in full force and effect.
d. Governing Law. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of California. e. Integration. This Amendment No. 1 contains the entire agreement between the Parties with respect to the subject matter of this Amendment No. 1. Any prior correspondence, memoranda, agreements, warranties, or representations relating to such subject matter are superseded in total by this Amendment No. 1.

NOW THEREFORE, the parties hereto have executed this Amendment No. 1 as of the date set forth above.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.

CITY:

CITY OF CUPERTINO, a municipal
corporation
By:

Pamela Wu, City Manager
[Signature must be notarized]
ATTEST:

By:

Kirsten Squarcia, City Clerk
APPROVED AS TO FORM:

By:

Christopher D. Jensen, City
Attorney
DEVELOPER:

CUPERTINO VILLAGE LP,
a California limited partnership
By:

Name
:

Its:

By:

Name
:

Its:
[Signatures must be notarized]
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ORDINANCE NO. 19- 2186

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

APPROVING A DEVELOPMENT AGREEMENT FOR THE DEVELOPMENT OF A NEW 5- STORY, 185 ROOM HOTEL WITH ASSOCIATED SITE AND
LANDSCAPING IMPROVEMENTS LOCATED AT 10801 AND 10805 NORTH WOLFE ROAD ( APN: 316- 45- 017 AND 316- 05- 56)
SECTION I: PROTECT DESCRIPTION
Application No.: DA-2017- 01
Applicant: Kimco Realty (Michael Strahs)
Property Owner: Cupertino Village, LP
Location: 10801 and 10805 North Wolfe Road (APN: 316- 45- 017 and 316- 05- 56) SECTION II: FINDINGS FOR DEVELOPMENT AGREEMENT
WHEREAS, the City of Cupertino received an application on December 8, 2017 for a General Plan Amendment, Development Permit, Development Agreement, Architectural and Site-Approval, Use Permit, and Tree Removal permits to allow the development of a new 5- story, 185 room hotel with associated site and landscaping improvements, and j associated environmental review (" Project"); and,
WHEREAS, Cupertino Village, LP has a legal and equitable interest in certain real property consisting of approximately 1. 72 acres located within the City and generally borderd by North Wolfe Road to the east, Pruneridge Avenue to the south, APN# 316- 45- 016 (Arioso Apartments) to the west, and APN #316- 05- 056 ( Cupertino Village Shopping Center) to the north, as more particularly described in Exhibit A, the Development Agreement ("Property"); and
WHEREAS, Government Code Sections 65864 through 68569. 5 provide the statutory authority for development agreements between municipalities and parties with a fee or equitable interest in real property; and
WHEREAS, Cupertino Municipal Code § 19. 144.010 et seq., establishes additional procedures for review and approval of proposed development agreements by the City of Cupertino; and
WHEREAS, in December 2017, Cupertino Village, LP requested that the City consider l entering into a Development Agreement for development of the Project; and WHEREAS, the terms of the Development Agreement include the following community benefits funded by Cupertino Village, LP:
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Ordinance No. 19-2186

Page 2 ends

Cupertino City CouncilApril 3, 2024

Cupertino City Council
April 3, 2024