CC 07-02-2024 Searchable Packet.pdf — Cupertino City Council, July 2, 2024 (part 1 of 6)

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference Tuesday, July 2, 2024
5:30 PM
Televised Special Meeting (5:30) and Regular City Council Meeting (6:45)

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the following ways:
1) Appear in person at Cupertino Community Hall.
2) E-mail comments by 4:00 p.m. on Tuesday, July 2 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.

Members of the audience who address the City Council must come to the

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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_4j-BvCSnQ5K8O4tKRUZwgQ Phone
Dial: 669-900-6833 and enter Webinar ID: 983 7515 5185 (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: 983 7515 5185
SIP: [email protected]
After registering, you will receive a confirmation email containing information about joining the webinar.

Please read the following instructions carefully:

1. You can directly download the teleconference software or connect to the meeting in your internet browser. If you are using your browser, make sure you are using a current and up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain functionality may be disabled in older browsers, including Internet Explorer.

2. You will be asked to enter an email address and a name, followed by an email with instructions on how to connect to the meeting. Your email address will not be disclosed to the public. If you wish to make an oral public comment but do not wish to provide your name, you may enter “Cupertino Resident” or similar designation.

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

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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 Tuesday, July 02, 2024, commencing at 5:30 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
ROLL CALL - 5:30 PM

ACTION CALENDAR

1. Subject: Accept the Enterprise Risk Assessment Final Report and FY 2024-25 Internal Audit Work Plan
Recommended Action: 1. Accept the Enterprise Risk Assessment Final Report

2. Accept the FY 2024-25 Internal Audit Work Plan
Presenter: Kristina Alfaro, Director of Administrative Services Staff Report
A – City of Cupertino Enterprise Risk Assessment Final Report B – FY 2024-25 Internal Audit Work Plan

ADJOURNMENT

REGULAR MEETING
CALL TO ORDER - 6:45 PM

PLEDGE OF ALLEGIANCE

ROLL CALL

CLOSED SESSION REPORT

CEREMONIAL ITEMS

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1. Subject: Recognition of July as Parks and Recreation Month Recommended Action: Recognize July as Parks and Recreation Month

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. 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 2-6)
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.

2. Subject: Approve the June 18, 2024 City Council minutes Recommended Action: Approve the June 18, 2024 City Council minutes A - Draft Minutes

3. Subject: Approve the June 19, 2024 City Council minutes Recommended Action: Approve the June 19, 2024 City Council minutes A - Draft Minutes

4. Subject: Second reading of Municipal Code Amendments to Chapter 19.48 (Fences), Chapter 19.12 (Administration), and Chapter 19.08 (Definitions) and related CEQA exemption. (Application No.: MCA-2024-001; Applicant: City of Cupertino; Location:

Citywide)

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City Council Agenda July 2, 2024
Recommended Action: Conduct the second reading and enact Ordinance No. 24-2260:
"AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO AMEND MUNICIPAL CODE CHAPTER 19.08, CHAPTER 19.12, AND CHAPTER

19.48 REGARDING FENCES", which includes a finding to find the actions exempt from CEQA.

Staff Report
A - Draft Ordinance No. 24-2260

5. Subject: Status update for prior Internal Audit Work Plans in Fiscal Year (FY) 2021-22 and FY 2022-23
Recommended Action: Receive status update report for prior Internal Audit Work Plans in FY 2021-22 and FY 2022-23
Staff Report
A – Procurement Operational Review - Audit Recommendation Update B – Fiscal Policy Inventory & Gap Analysis - Audit Recommendation Update C – Capital Program Effectiveness - Audit Recommendation Update D – Fraud, Waste, and Abuse Program - Audit Recommendation Update E – Budget Process Review - Audit Recommendation Update F – Enterprise Leadership Assessment - Audit Recommendation Update G – Library Expansion Construction - Audit Recommendation Update

6. Subject: Bridge Preventative Maintenance Program construction contract.

Recommended Action: 1. Award a construction contract for the Bridge Preventative Maintenance Program in the amount of $1,647,475 with American Civil Constructors West Coast LLC.;

2. Authorize the City Manager to execute the construction contract;

3. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $164,750 (10%) for a total contract amount of $1,812,225; and

4. Adopt Resolution No. 24-066 approving budget modification #2425-347, approving an appropriation of $300,000 in the Transportation Fund (270) for the project (budget unit 270-90-960) and a transfer of $300,000 from the Capital Reserve Fund (429) to the Transportation Fund (270).

Staff Report
A - Draft Contract
B - Draft Resolution

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 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.

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7. Subject: Municipal Code Text, Specific Plan, Below Market Rate Mitigation Manual and Zoning Map Amendments related to implementing the 6th Cycle Housing Element (Application No.(s): MCA-2023-001, SPA-2023-001, CP-2024-002, Z-2024-001, EA-2024-001; Applicant: City of Cupertino; Location: city-wide) Recommended Action: That the City Council take the following actions for consistency with the 6th Cycle Housing Element, and minor edits for clarity and compliance with State law, as follows:

1. Conduct the first reading of Ordinance No. 24-2261 “An Ordinance of the City Council of the City Of Cupertino Amending Various Chapters in Title 14, Title 17 And Title 19, Including But Not limited to the Addition of Three New Chapters in Title 19, to Implement Policies in the General Plan and for Clarity” (Attachment A) as further described in the staff report; and

2. Adopt Resolution No. 24-067 approving amendments to the Heart of the City Specific Plan and the Below Market Rate Housing Mitigation Manual to allow implementation of the Housing Element and meet the requirements of State Law (Attachment B): and

3. Conduct the first reading of Ordinance No. 24-2262 “An Ordinance of the City Council of the City of Cupertino Rezoning Certain Sites in the City for Conformance with General Plan and Housing Element” (Attachment C) to reflect changes to Priority Housing Sites and other minor changes for internal consistency.

Presenters: Luke Connolly, Assistant Director of Community Development and Piu Ghosh, Planning Manager
Staff Report
A - MCA Draft Ordinance
B - SPA and CP Draft Resolution
C - Z Map Draft Ordinance
D - Letter from Cupertino for All dated 6.18.2024

ACTION CALENDAR

8. Subject: Review Lawrence-Mitty Park and Trail Project Final conceptual Design and consider the proposed Initial Study/Mitigated Negative Declaration Recommended Action: 1. Adopt Resolution No. 24-068, adopting Lawrence-Mitty Park and Trail Project's Initial Study/Mitigated Negative Declaration; and

2. Approve the Lawrence-Mitty Park and Trail Project Final Conceptual Design Presenter: Susan Michael, Capital Improvement Programs Manager

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Staff Report
A - Draft Resolution
B - Conceptual Plan Report
C - Draft ISMND and Appendices
D - Final Memo and Response to Comments
E - PC RES-2024-06 Lawrence-Mitty General Plan Consistency F - PC RES 2024-07 Lawrence-Mitty IS-MND
G - SCVAS Support Lawrence-Mitty 06-06-24
H - 01-17-2023 Council Staff Report

9. Subject: Repeal of the existing General Plan Amendment (GPA) Authorization procedure and process
Recommended Action: Adopt Resolution No. 24-069 (Attachment A) repealing the existing General Plan Amendment Authorization procedure and process and rescinding Resolution 15-078
Presenter: Benjamin Fu, Director of Community Development Staff Report
A - Draft Resolution
B - City Council Resolution 15-078
C - Flowchart indicating GPA Authorization Process
D - GPA Authorization projects since 2015
E - List of cities with GPA initiation/screening/authorization procedures

ITEMS REMOVED FROM THE CONSENT CALENDAR

CITY MANAGER REPORT

ORAL COMMUNICATIONS - CONTINUED

COUNCILMEMBER REPORTS

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

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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.

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
24-13170 Agenda Date: 7/2/2024
Agenda #: 1.

Subject: Accept the Enterprise Risk Assessment Final Report and FY 2024-25 Internal Audit Work Plan

1. Accept the Enterprise Risk Assessment Final Report

2. Accept the FY 2024-25 Internal Audit Work Plan
Presenter: Kristina Alfaro, Director of Administrative Services CITY OF CUPERTINO Page 1 of 1 Printed on 6/26/2024
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CITY COUNCIL STAFF REPORT
Meeting: July 2, 2024
Subject
Accept the Enterprise Risk Assessment Final Report and FY 2024-25 Internal Audit Work Plan Recommended Action

1. Accept the Enterprise Risk Assessment Final Report

2. Accept the FY 2024-25 Internal Audit Work Plan
Reasons for Recommendation
Background
As of FY 2021-22, Moss Adams LLP (“Moss Adams”) serves as the designated Internal Auditor for the City of Cupertino (the City) and conducts projects focusing on:
 Risks
 Internal controls
 Efficiency and effectiveness
 Best practices
 Compliance
As described in the internal audit charter, the Internal Auditor is appointed by and reports to the Audit Committee and City Council. The Audit Committee and City Council approve the annual audit work plan, review audit report findings and recommendations, and monitor the implementation of recommendations.
2024 Enterprise Risk Assessment
As part of their internal audit work plan, Moss Adams conducted a triennial enterprise risk assessment for the City. An enterprise risk assessment provides a snapshot of the risk landscape at a specific point in time, reflecting current threats and vulnerabilities faced by the City. It is a recommended practice to regularly update an enterprise risk assessment to ensure that the City maintains an accurate and up-to-date understanding of its risk environment.

This enterprise risk assessment provides a way for the leadership of the City to measure uncertainty related to the City’s ability to achieve defined strategic objectives and operate effectively. Risks are identified, analyzed, and measured by the level of inherent vulnerability, 10 CC 07-02-2024
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the level of preparedness to mitigate them, and the impact such negative events could have on the City should they occur. This assessment evaluates risk across 19 categories. This engagement took place between December 2023 and May 2024 and is a point-in-time assessment. Additionally, as stated in the report, the results of this ERA were largely impacted by views of the City’s financial future; however, currently, management believes there is now a more optimistic outlook on the City’s finances.

The previous Enterprise Risk Assessment was conducted in 2020 and presented to the Audit Committee on February 22, 2021 and May 24, 2021 (continued from previous meeting), and to the City Council on July 20, 2021.

Compared to 2020, the 2024 risk assessment results show that 42% of the City’s risk categories have remained flat in their risk rating. There has been an increase in risk rating for 32% of categories, and 26% of categories have decreased in their risk rating. Increased risk ratings are largely driven by the change in the City’s financial situation, while decreased risk is due to the City’s efforts in the intervening years to deploy risk mitigation strategies. This has involved additional studies over the past three years to address areas of risk, including an Enterprise Leadership Assessment, Budget Review, Capital Program Effectiveness Study, and Procurement Operational Review.

Internal Audit Work Plan
The Internal Audit Work Plan, developed by Moss Adams, outlines the projects to be undertaken in FY 2024-25. The Audit Committee and City Council prioritize the projects included in the work plan.

The Audit Committee and City Council approved the following internal audit work plans in prior years:
 FY 2021-22:
o Procurement Operational Review
o Policy Inventory (Fiscal) and Plan
o Capital Program Effectiveness Study Fraud, Waste, and Abuse Program  FY 2022-23:
o Budget Process Review
o Enterprise Leadership Effectiveness Study
o Library Construction Audit
 FY 2023-24:
o Enterprise Risk Assessment
o City Policy Inventory
For FY 2024-25, Moss Adams recommended the following internal audit work plan:
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 Grants Management Internal Controls Review: Assess the internal controls in place over the City’s grants management activities (including applications, review, administration, and reporting). (16 weeks, $25,000)
 Special Revenue Funds Process Review: Document the process used for special revenue fund accounting, identify gaps compared to best practices, and conduct testing of prior years’ accounting. (16 weeks, $18,000)
 Recommendation Validation Process Establishment: Inventory prior internal and external audit recommendations, collaborate with City staff to develop a tracking mechanism and process to report and validate recommendation implementation (20 weeks, $10,000)  Ongoing Internal Audit Services Attend Audit Committee and Council meetings, prepare status reports, manage internal audit program, and monitor FWA hotline. ($7,000) The Enterprise Risk Assessment and FY 2024-25 Internal Audit Work Plan were presented to the Audit Committee on June 24, 2024. The Audit Committee voted unanimously to receive the reports and forward them to the City Council for approval.

Next Steps
From the risk assessment results, Moss Adams prioritized and recommended an internal audit work plan for FY 2024-25. If the City Council approves the recommended internal audit work plan, Moss Adams will complete the recommended projects and present the audit reports to the Audit Committee for review and the City Council for acceptance. The audit reports will be available on the City’s website at cupertino.org/finance under Internal Audit.

Sustainability Impact
No sustainability impact.

Fiscal Impact
In the FY 2024-25 Adopted Budget, the City has budgeted $60,000 for the internal audit contract in the contracts category of the accounting program (GL 100-41-405 700-702). No additional appropriations are requested.

California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Thomas Leung, Budget Manager
Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – City of Cupertino Enterprise Risk Assessment Final Report B – FY 2024-25 Internal Audit Work Plan
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Proprietary & Confidential

FINAL REPORT
City of Cupertino

ENTERPRISE RISK ASSESSMENT
May 23, 2024
Moss Adams LLP
999 Third Avenue, Suite 2800
Seattle, WA 98104
(206) 302-6500
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Enterprise Risk Assessment Report
Table of Contents
Executive Summary 1
A. Project Scope 1
B. Risk Assessment Framework 1
C. Risk Assessment Results 2
Introduction 4
A. Project Scope 4
B. Methodology 4
Risk Assessment Framework 5
Definition of Risk Levels 6
C. External Environment 8
D. Comparison to 2020 Risk Assessment 9
E. Risk Assessment Employee Survey Results 10
Risk Assessment Results 12
A. High Risk Categories 12
Funding and Economics 12
B. Moderate to High Risk Categories 15
Capital Improvement Program 15
Compliance and Financial Reporting 17
Human Resources 20
Planning and Strategy 25
C. Moderate Risk Categories 27
Asset Management 27
Governance 29
Internal Controls 32
Management and Leadership 33
Operations and Service Delivery 35
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Table of Contents – Continued
Enterprise Risk Assessment Report
Organization and Staffing 38
Policies and Procedures 40
Procurement and Contracting 41
Reputation and Public Perception 44
Risk Programs 46
D. Low to Moderate Risk Categories 49
Accounting and Finance 49
Ethics and Fraud, Waste, and Abuse 51
Information Technology 54
Public Safety and Security 58
Appendix A: Employee Survey Results 61
A. Survey Respondent Profile 61
B. Risk Category Ratings 61
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EXECUTIVE SUMMARY
As part of our internal audit workplan, Moss Adams LLP (Moss Adams) conducted a triennial enterprise risk assessment for the City of Cupertino (the City). An enterprise risk assessment provides a snapshot of the risk landscape at a specific point in time, reflecting current threats and vulnerabilities faced by the City. It is a recommended practice to regularly update an enterprise risk assessment to ensure that the City maintains an accurate and up-to-date understanding of its risk environment.1
This enterprise risk assessment provides a way for the leadership of the City to measure uncertainty related to the City’s ability to achieve defined strategic objectives and operate effectively. Risks are identified, analyzed, and measured by the level of inherent vulnerability, the level of preparedness to mitigate them, and the impact such negative events could have on the City should they occur. This assessment evaluates risk across 19 categories. This engagement took place between December 2023 and May 2024.

For each risk category, our assessment includes an overview of each risk condition, including the current risk level, likelihood, impact, preparedness, and trajectory (defined in the table below). Risk mitigation identifies potential strategies to reduce overall risk for each category. The residual risk level represents the probable risk exposure after mitigation efforts are implemented. These elements make up the risk assessment framework, which is guided by the Committee of Sponsoring Organizations of the Treadway Commission’s (COSO) Enterprise Risk Management (ERM) methodology. The COSO framework is supported by the Institute of Internal Auditors (IIA), American Institute of Certified Public Accountants (AICPA), and American Accounting Association (AAA).

RISK LEVEL Level of uncertainty that could impair functions and processes, in the absence of any actions taken to alter either the risk’s likelihood or impact.

LIKELIHOOD Qualitative assessment of the probability of a negative event occurring, given the current risk conditions.

IMPACT Level of potential impact of a negative event on strategy, people, operations, systems, and resources.

PREPAREDNESS Level of preparedness through activities and resources to manage risks and minimize and limit potential losses.

TRAJECTORY Trajectory of the risk level, given the current risk conditions. 1 Committee of Sponsoring Organizations of the Treadway Commission. 2012. “Risk Assessment in Practice.” Accessed April 8, 2024: https://www.coso.org/_files/ugd/3059fc_cdb2016e5bf64213a5ca726b7846856d.pdf 16 CC 07-02-2024
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RISK MITIGATION Potential strategies for reducing risk.

RESIDUAL RISK Possible remaining exposure after known risks have been mitigated through specific actions.

The assessment evaluates the City’s risks across 19 categories. The table below presents the summary results of the assessment.

RISK CATEGORY IMPACT LIKELIHOOD PREPAREDNESS TRAJECTORY High Risk
Funding and Economics High High Moderate to High Flat
Moderate to High Risk
Capital Improvement
Program Moderate to High Moderate Low to Moderate Increasing – Low Compliance and
Financial Reporting Moderate Moderate to High Low to Moderate Flat Human Resources High Moderate to High Moderate Increasing – Low Planning and Strategy Moderate Moderate to High Moderate Increasing – Low Moderate Risk
Asset Management Moderate to High Moderate Moderate Flat Governance Moderate to High Moderate Moderate Decreasing – Low Internal Controls Moderate Moderate Moderate Flat
Management and
Leadership Moderate Moderate to High Moderate Flat
Operations and Service
Delivery Moderate to High Moderate Moderate Flat
Organization and
Staffing Moderate to High Moderate Moderate Increasing – Low Policies and Procedures Moderate Moderate Moderate Flat Procurement and
Contracting Moderate Moderate to High Moderate Decreasing – Low 17 CC 07-02-2024
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RISK CATEGORY IMPACT LIKELIHOOD PREPAREDNESS TRAJECTORY Reputation and Public
Perception Moderate Moderate Moderate Increasing – Low
Risk Programs Moderate to High Moderate Moderate Flat
Low to Moderate Risk
Accounting and Finance Moderate Low to Moderate Moderate Flat Ethics and Fraud,
Waste, Abuse Moderate Low to Moderate Moderate to High Decreasing – Low Information Technology Moderate to High Low to Moderate Moderate to High Flat Public Safety and
Security Moderate Low to Moderate Moderate Flat
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INTRODUCTION
The City engaged its internal auditor, Moss Adams LLP (Moss Adams), to conduct an independent enterprise risk assessment to analyze the City’s overarching areas of risk. Periodically conducting an enterprise risk assessment enables the City to monitor risk over time, as well as identify emerging risks, and prioritize the implementation of mitigation strategies to address the most critical areas. The enterprise risk assessment process followed conventional ERM methodology as defined by COSO and embraced by IIA.

The Moss Adams team evaluated 19 categories of risk that collectively comprise operations across the organization. Risk assessment procedures include identifying the current levels of risk, the likelihood of a negative event occurring, the impact of a negative event, and the level of preparedness in terms of mitigating negative events. All City departments were included in the risk assessment process. This assessment incorporates information provided by City Council members, senior leadership, managers, supervisors, and staff.

The enterprise risk assessment process reflects a specific point in time. This engagement was conducted between December 2023 to May 2024. Both the overall risk ratings and trajectory levels are directly connected to this timing.

The enterprise risk assessment process consists of four phases: 1) planning, 2) fact finding, 3) analysis, and 4) reporting. Planning included requesting documents, identifying which individuals to interview, and timing the all-staff survey. Fact finding encompassed document review, analysis of existing data, interviews, and an online survey sent to City employees. Analysis included assessment of the level of uncertainty associated with each risk factor, including the potential for impact on the City’s operations. Reporting entailed the development of draft and final deliverables as well as followup discussions with management and presentation to key stakeholders.

The activities and goals for each phase are described in detail below.

PLANNING
We began planning our assessment by requesting a standard set of documents and data from the City, including (but not limited to) prior risk assessments, audits, public website documents, and financial reports. We used these documents to identify individuals to interview and additional document needs based on business processes and functional areas. 19 CC 07-02-2024
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FACT FINDING
Fact finding encompassed reviewing documents received, interviewing employees and City Council members, and soliciting employee feedback via an online survey. During this phase, we gathered information to gain a clear understanding of the City’s processes and the way it operates to achieve its goals and purpose.

ANALYSIS
With the information collected and compiled, we performed a risk analysis that included a comprehensive review and evaluation of the various categories of risks. This analysis included assessing current risk conditions and trajectory, the level of preparedness efforts to mitigate risks, and the probability and potential impact a negative event may have on the City’s ability to achieve its mission, vision, and strategic goals.

REPORTING
During the reporting phase, we developed preliminary observations to verify facts. Preliminary observations were reviewed with City leadership and feedback incorporated into the draft report. The draft report was developed and submitted to City leadership for review. Based on feedback, we finalized the report for delivery to City leadership and presentation to the Audit Committee.

The enterprise risk assessment process relies on data and documents obtained from the City. By design, the assessment process requires access to all senior leadership and many department and division managers. Full disclosure of information has been assumed in this process.

The process to identify and assess risks considers both internal and external factors. As part of this risk assessment, Moss Adams used a variety of techniques, both qualitative and quantitative, to identify external and internal factors that contribute to risk. Risk assessments involve a dynamic and iterative process to identify and analyze risks to the City’s ability to achieve its objectives, forming a basis for determining how risks should be managed.

For each of the risk categories assessed, our risk assessment includes an overview of the risk condition at the City, including the current risk level, likelihood, impact, preparedness, and trajectory (defined in the table below). Risk mitigation identifies potential strategies to reduce overall risk for each category, and residual risk represents the probable risk exposure after risk mitigation efforts have been implemented. The elements outlined below make up the risk assessment framework and are industry standard as defined by COSO’s ERM methodology. 20 CC 07-02-2024
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RISK LEVEL
Level of uncertainty that could impair functions and
processes, in the absence of any actions taken to
alter either the risk’s likelihood or impact.
● Low
● Low to Moderate
● Moderate
● Moderate to High
● High
IMPACT
Level of potential impact of a negative event on
strategy, people, operations, systems, and
resources.
● Low
● Low to Moderate
● Moderate
● Moderate to High
● High

LIKELIHOOD
Qualitative assessment of the probability of a
negative event occurring, given the current risk
conditions.
● Low
● Low to Moderate
● Moderate
● Moderate to High
● High

PREPAREDNESS
Level of preparedness through activities and
resources to manage risks and minimize and limit
potential losses.
● Low
● Low to Moderate
● Moderate
● Moderate to High
● High

TRAJECTORY
Trajectory of the risk level, given the current risk
conditions.
● Decreasing – High
● Decreasing – Low
● Flat
● Increasing – Low
● Increasing – High

RISK MITIGATION
Potential strategies for reducing risk. Based on the current risk conditions

RESIDUAL RISK
Possible remaining exposure after known risks have
been mitigated through specific actions.
● Low
● Low to Moderate
● Moderate
● Moderate to High
● High
For each risk factor category, Moss Adams assigned an overall risk rating. The risk levels are intended to provide City leadership with a means of prioritizing remediation efforts. Definitions of each level of risk, impact, likelihood, preparedness, and trajectory are provided in the following tables. 21 CC 07-02-2024
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RISK LEVEL DEFINITIONS
Risk Significance
High  Represents significant risks that should be addressed immediately.

Moderate to High  Represents serious risks that should be addressed expeditiously.

Moderate  Represents moderate risks that should be addressed as soon as reasonably possible.

Low to Moderate  Represents ordinary risks that should be addressed during the next review cycle.

Low  Represents a minor threat to the organization.

IMPACT LEVEL DEFINITIONS
Impact Significance
High  Threatens the success of the organization/service delivery.

Moderate to High  Substantial impact on time, cost, or quality.

Moderate  Notable impact on time, cost, or quality.

Low to Moderate  Minor impact on time, cost, or quality.

Low  Negligible impact.

LIKELIHOOD LEVEL DEFINITIONS
Likelihood Significance
High  Almost certain to occur with current risk conditions.

Moderate to High  Very likely to occur with current risk conditions.

Moderate  Likely to occur with current risk conditions.

Low to Moderate  May occur with current risk conditions.

Low  Unlikely to occur with current risk conditions.
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PREPAREDNESS LEVEL DEFINITIONS
Preparedness Significance
Low  Minimal risk preparedness activity.

Low to Moderate  Preliminary risk preparedness efforts have been initiated, though few, if any, have been implemented.

Moderate  Deliberate risk preparedness efforts are underway; important gaps remain.

Moderate to High  Risk preparedness efforts are well-established, documented, and stable.

High  Risk preparedness activities are robust and likely to be sustained, with readily available evidence attesting to this level of achievement.

TRAJECTORY DEFINITIONS
Trajectory Significance
Increasing – High  Inherent risk is increasing significantly in current conditions.

Increasing – Low  Inherent risk is increasing somewhat in current conditions.

Flat  Inherent risk is holding steady in current conditions.

Decreasing – Low  Inherent risk is decreasing somewhat in current conditions.

Decreasing – High  Inherent risk is decreasing significantly in current conditions.

The external environment can have a significant impact on the City's enterprise risk profile by introducing risks and uncertainties that may affect the City's operations and goals; however, these factors are not necessarily within the City’s ability to control or influence. For example, some of the key factors that may influence the external environment and, therefore, the enterprise risk assessment for the City include:
• Economic Conditions: Prevailing economic conditions, such as inflation, interest rates, and market fluctuations, can impact financial health, revenue streams, and investment opportunities. • Political Climate: The political climate can also affect risk exposure. For example, changes in local, state, or federal laws and regulations can create new compliance obligations or financial penalties.
• Natural Disasters and Climate Change: Natural disasters, such as floods, hurricanes, or earthquakes, can significantly impact the infrastructure and operations. • Social and Demographic Changes: Changes in population demographics and social trends can also affect the risk assessment. For example, an aging population may require more health care services, and changes in consumer preferences may impact the City's tourism industry. 23 CC 07-02-2024
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Several significant trends have emerged at the national level that influence the City’s risk profile.

Economically, inflation rates have risen steadily, driven by global supply chain disruptions and increased consumer demand, posing challenges for cities in managing budgets and funding priorities.

Additionally, legislative and regulatory changes have been notable, with new environmental regulations and infrastructure investment initiatives impacting planning and compliance requirements.

Extreme weather events, including hurricanes, wildfires, and floods, have intensified due to climate change, emphasizing the urgency to invest in infrastructure resilience and emergency response capabilities. Demographic shifts have continued, characterized by ongoing urbanization and an aging population, influencing service demand for health care, housing, and social services within cities.

These national trends underscore the importance for cities to regularly update their risk assessments to account for evolving external factors and develop adaptive strategies to mitigate potential risks and capitalize on emerging opportunities. Prominent at the time of this report was the revenue shortfall resulting from a state audit (see Funding and Economics).

The following table presents the results from the 2020 assessment alongside the 2024 results.

SUMMARY OF RISK LEVEL RATING CHANGES
RISK CATEGORY 2020 RISK LEVEL 2024 RISK LEVEL CHANGE
Funding and Economics Moderate High
Capital Improvement Program Moderate Moderate to High
Compliance and Financial Reporting Moderate Moderate to High Human Resources Moderate to High Moderate to High
Planning and Strategy Moderate to High Moderate to High Asset Management Low to Moderate Moderate
26% 42% 32%
Decreasing Flat Increasing
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RISK CATEGORY 2020 RISK LEVEL 2024 RISK LEVEL CHANGE
Governance High Moderate
Internal Controls Moderate Moderate
Management and Leadership Low to Moderate Moderate
Operations and Service Delivery Moderate Moderate
Organization and Staffing Moderate Moderate
Policies and Procedures Moderate to High Moderate
Procurement and Contracting High Moderate
Reputation and Public Perception Low to Moderate Moderate Risk Programs Moderate Moderate
Accounting and Finance Low to Moderate Low to Moderate
Ethics and Fraud, Waste and Abuse Moderate Low to Moderate Information Technology Moderate to High Low to Moderate Public Safety and Security Low to Moderate Low to Moderate Distribution of a risk assessment survey offers staff the opportunity to identify perceived strengths and weaknesses of the City, which helps us assess potential opportunities for improvement and identify areas of specific vulnerability. The survey poses a variety of statements to employees, including rating scale questions as well as open-ended questions for each risk category. The confidential questionnaire was distributed to employees and was open for submission between January 29 and February 8, 2024. Out of the 198 full-time employees invited to take the survey, 92 individuals submitted responses to the survey (a participation rate of 46%). Survey responses are noted in each section, while respondent demographics and overall risk ratings are included in Appendix A of this report.

While survey responses were considered as part of the overall context for each category, staff ratings for each category are not used as a formal component of the final risk rating. Rather, they provide additional context, a means to understand staff sentiment, and a method to identify trends occurring across departments.
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RISK CATEGORY RISK ASSESSMENT

EMPLOYEE SURVEY

RESULTS
Accounting and Finance Low to Moderate Moderate
Asset Management Moderate Low
Capital Improvement Program Moderate to High Low to Moderate Compliance and Financial Reporting Moderate to High Low to Moderate Ethics and Fraud, Waste, Abuse Low to Moderate Low
Funding and Economics High Moderate to High
Governance Moderate Moderate
Human Resources Moderate to High Low
Information Technology Low to Moderate Low
Internal Controls Moderate Not Surveyed
Management and Leadership Moderate Moderate to High
Operations and Service Delivery Moderate Low to Moderate Organization and Staffing Moderate Moderate
Planning and Strategy Moderate to High Moderate
Policies and Procedures Moderate Moderate
Procurement and Contracting Moderate Moderate
Public Safety and Security Low to Moderate Low
Reputation and Public Perception Moderate Low
Risk Programs Moderate Low
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RISK ASSESSMENT RESULTS
For each of the risk categories assessed, our risk assessment includes an overview of the risk condition, including the levels of overall risk, impact, likelihood, preparedness, and trajectory of the risk conditions. We identified potential risk mitigation strategies intended to reduce overall risk for each category. The residual risk level represents the probable risk exposure after risk mitigation efforts are implemented.

Results are grouped by overall risk level, in order of highest to lowest. The levels and corresponding color coding for each risk condition, impact, likelihood, preparedness, and trajectory are represented in the table below. Definitions of the risk category components are addressed in the Risk Assessment Framework section of this report.

Impact Likelihood Preparedness Trajectory
High High Low Increasing – High
Moderate to High Moderate to High Moderate to High Increasing – Low Moderate Moderate Moderate Flat
Low to Moderate Low to Moderate Moderate to High Decreasing – Low Low Low High Decreasing – High
OVERALL RISK LEVEL: HIGH
Impact Likelihood Preparedness Trajectory

HIGH HIGH MODERATE TO HIGH FLAT
Risk Mitigation
● Continue to pursue expenditure and service reductions to achieve a balanced budget for fiscal year (FY) 2025 without the use of reserve funds. ● Continue to explore opportunities to diversify revenues and optimize the City’s revenue strategy.
● Create a Citywide grant strategy to fully leverage grant funding opportunities (see also Capital Improvement Program).

RESIDUAL RISK: MODERATE
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Risk Areas: Risks associated with revenue sources, funding levels, cash management, liquidity, expenditure rates and commitments, debt management, and inter-organizational business.

Scope: The funding and economic factors that impact the organization’s ability to maintain operations and deliver programs and services. Whether within the organization’s realm of influence (or outside of their control), the funding and economic factors impact the organization’s long-term fiscal stability as well as its ability to mitigate the negative impacts of extraordinary risk such as regional changes and national economic volatility.

The City has historically maintained a structurally sound budget, with revenues surpassing expenditures in most FYs. Additionally, the City has several controls in place to reduce funding and economic risks, including the following:
• The City develops medium-term and long-term financial forecasts as part of the budget process to help identify potential structural budget issues in advance and adjust as needed. The City also has a long-term financial stability policy that sets requirements for long-term financial planning for technology automation, revenue and expenditure forecasting, and decreasing expenditure and risk exposures.
• The City has an established reserves policy that requires a set dollar amount of reserves be maintained for various needs, including economic uncertainty, pension obligations, capital projects, sustainability, and other unassigned needs. Reserves reduce risks associated with unexpected revenue shortfalls or expenses.
• The City’s budget includes contingency funds that cover maintenance and operational funding for Public Works, as well as contingency funds for disaster response.

Based on the City’s FY24 budget, the City’s General Fund revenues are primarily reliant on property tax (40%), charges for service (15%), sales tax (14%), and transient occupancy tax (9%). Estimated sales tax revenues decreased 64.2% from FY23 when they represented 34% of the City’s General Fund revenues. This shift was due to a 2023 audit by the California Department of Tax and Fee Administration (CDTFA) that altered the sales tax revenue received by the City. As a result of the CDFTA’s audit decision, the City is estimated to experience an ongoing 73% ($30 million/year) decline in sales tax revenue. In addition to the annual decline in sales tax revenue, the CDTFA audit may call for the City to return sales tax revenue.

The City was able to manage the revenue shortfall resulting from the CDTFA audit in the short term by relying on its reserves. In FY24 the City’s adopted general fund budget of $86.1 million was funded with about $5.8million in one-time funds. However, based on the FY24 budget, the ongoing drop in sales tax revenue has put the City in a structural deficit, meaning ongoing expenses are projected to exceed ongoing revenue. The use of reserves to close the structural deficit is not sustainable in the long term. Additionally, the City’s Balanced Budget Policy requires the City to only deploy reserves with a plan to return to structural balance.

Balanced Budget Plan
To return to structural balance, the City plans to cover 85% of the expected $30 million in reduced annual sales tax revenue through expenditure reductions, including $15 million in reductions through the selective elimination of vacant positions, decreased transfers from the General Fund to other funds, use of the City’s Section 115 Trust to fund Other Post-Employment Benefits/Retiree Health (OPEB) costs, and other expenditure decreases. The remaining $15 million in reductions is expected 28 CC 07-02-2024
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to be achieved through service-level reductions, such as reductions to operations and maintenance, infrastructure, technology improvements, community events, and potential revenue generation measures or fee increases. The strategies to fully address the structural deficit are actively in development, meaning that the budget deficit has not yet been resolved. This is the main driver of the increased risk rating in this area compared to the 2020 risk assessment.

To address the structural deficit, the City also explored opportunities to diversify and optimize its revenue sources, specifically increased taxes. After community polling indicated limited community support for increased taxes, the City Council unanimously voted to stop exploring ways to create new taxes or increase taxes in February 2024.

The City also completed a fee study in January 2024, which determined the City was underrecovering its costs by approximately 12%. In May 2024, City Council adopted a revised fee schedule for FY25 to better recover costs. Several interviewed staff also noted there may be opportunities for the City to explore additional grant opportunities to support financial needs, such as those related to capital improvements (see also Capital Improvement Program); however, the City does not have a Citywide grant strategy in place to fully capitalize on potential grant opportunities.

Staff Perceptions
The impacts of the CDTFA audit have somewhat impacted employees’ outlook on the City’s financial future. Most survey respondents (64%) rated the current trajectory of the City’s financial future as poor (54%) or terrible (10%). Survey responses reflect staff’s attitudes at a particular moment in time in early 2024, when the revenue shortfall was relatively new information. At the time of this report’s finalization, management shared the belief that there is now reason to be cautiously optimistic because the full monetary impact of the CDTFA audit on the City’s budget is now clear and the City is actively developing strategies to adapt its budget to the new reality (see also Accounting and Finance).

Q: How would you rate the current trajectory of the City's financial future? 7% 29% 54% 10%
Excellent Good Average Poor Terrible
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OVERALL RISK LEVEL: MODERATE TO HIGH
Impact Likelihood Preparedness Trajectory
MODERATE TO HIGH MODERATE LOW TO MODERATE INCREASING – LOW Risk Mitigation
● Develop a long-range Capital Improvement Program (CIP) to strategically guide capital improvement investments.
● Develop a standardized and transparent process to prioritize CIP projects. ● Create a Citywide grant strategy to fully leverage grant funding opportunities, including for CIP projects (see also Funding and Economics).

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with CIP, including planning, financing, construction, close-out, and capital asset management (including preservation and maintenance), tracking, reporting, accountability, and inventory.

Scope: In construction, issues of risk are closely tied to schedule, site unknowns, and budget issues. In addition, construction contracts must be monitored to ensure full compliance with equal employment opportunity, discrimination, prevailing wage, and fair labor standards laws.

The CIP Division plans, manages, and implements improvements to City land, parks, buildings, and infrastructure, and ensures that all public improvements are designed and constructed in alignment with community expectations and City standards. The CIP Division is within the City’s Public Works department and includes a budgeted staff of 5.8 full-time equivalent (FTE) positions (as of FY24).

Each year, the CIP Division develops a schedule of proposed capital improvement projects ranked by priority that includes an estimate of project costs and financing sources. The annual CIP plan and budget are reviewed and approved by the City Council.

In 2022, a Capital Program Review found that although the City’s capital planning process is welldefined, it lacks two industry-standard best practices: 1) a long-range CIP plan and 2) a standardized project prioritization process. These two conditions still exist and are the main drivers of risk in this area.
• Long-Range CIP Plan: The Annual CIP Budget document focuses on the current FY. While it includes existing projects with multi-year funding that are intended to be in progress or completed over the course of the next five years, the plan does not provide a clear view of the City’s planned capital improvements beyond the upcoming year. The document does not include planning for projects starting in later years and does not maintain future estimates of CIP project impacts on the City’s operating budget.
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It is industry best practice for municipalities to develop a long-term (three to five years) CIP plan2.

A long-term CIP plan enables the City to be more strategic when prioritizing and planning for upcoming projects and is designed to be amended on an annual basis. The lack of a long-term CIP plan can make it challenging for the City to develop a comprehensive long-range estimate of its unfunded CIP projects. Additionally, it may be more difficult to establish a strategic direction for capital spending, efficiently use resources, and identify opportunities to leverage funding from external sources, such as grants or partnerships. City staff shared the intention to eventually move to the development of a multi-year CIP; however, the budget shortfall has made multi-year budgeting exceptionally difficult.
• Standardized Project Prioritization Process: The selection of CIP projects is informed by needs identified in various planning documents and an annual process by which individual departments submit project requests. Projects are then prioritized by the CIP Division staff who evaluate various factors, including health and safety, available funding and grant opportunities, and political and community interest. High-priority projects are then submitted to City Council for approval. While the CIP Budget document lists several principles for project evaluation, the City has not yet adopted a standardized or quantitative set of evaluative criteria to guide the prioritization process. Over half of survey respondents rated the processes used to identify and prioritize CIP projects as average (39%), poor (16%), or terrible (3%). • Without a clear process in place for prioritization, the City may not be able to effectively prioritize critical infrastructure needs or maintenance projects that could extend the life of the City’s current assets. In light of future constraints to City resources, including staff and funds, it will become more important for the City to develop a robust project prioritization process.

Q: How would you rate the processes the City uses to identify and prioritize capital improvement projects?
The 2022 Capital Program Review also noted that the City had not yet developed a comprehensive grant strategy to take advantage of CIP funding opportunities outside of City revenues. While grant funding is currently being used on CIP projects, developing a standard approach would enable the City to take advantage of large multi-year grant funding sources and would add stability to CIP funding.
2 Government Finance Officers Association. 2008. “Master Plans and Capital Improvement Planning.” Accessed April 25, 2024:
https://www.gfoa.org/materials/master-plans-and-capital-improvement-planning 42% 39% 16% 3%
Excellent Good Average Poor Terrible
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OVERALL RISK LEVEL: MODERATE TO HIGH
Impact Likelihood Preparedness Trajectory

MODERATE MODERATE TO HIGH LOW TO MODERATE FLAT
Risk Mitigation
● Continue efforts to update policies and procedures to reduce compliancerelated risks. ● Continue efforts to improve compliance-related training. ● Review financial reporting and related processes to identify opportunities for streamlining and improving processes.
● Implement improved grants management controls, including documented policies and procedures, increased training, and effective tracking processes.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with compliance with laws, regulations, and requirements. Also, risks associated with financial reporting (content, distribution, assembly, utilization, frequency, formatting, accuracy, and reliability).

Scope: Risks organizations face when they are unable to follow internal policies, government laws, and regulations, which may be subjected to legal penalties and financial fines. Financial reporting includes deliverables such audited annual financial statements. Reliable financial information is fundamental to planning, budgeting, pricing, evaluating vendor performance, assessing partnerships, and a range of other operational and strategic activities.

Cities are expected to remain in compliance with a large and growing number of laws and regulations, including but not limited to requirements related to financial statements, labor, health and safety, and the environment. Failure to meet compliance regulations can lead to a variety of consequences ranging from legal penalties to financial loss to reputational damage. As is common in most organizations, compliance at the City is managed by a combination of departments and individuals depending on the specific area of compliance. Key departments involved in ensuring the City remains compliant with laws and regulations include the City Attorney’s Office, Finance, HR, and IT.

Effective compliance management requires both clearly defined and up-to-date policies and procedures and regular staff training and education. While the City has taken action to improve its policy and procedure environment since 2020 (see also Policies and Procedures), there are key policy and procedure gaps that are important to reduce compliance-related risks, including the following:
• The City’s Administrative Rules and Regulations of the Personnel Code have not been updated since 2013, though staff reported updates have been drafted and are under review (see also Human Resources).
• The City adopted a City Council Grant Policy that does establishes Council authority for the application, acceptance, and reporting of grants. However, the City has not yet adopted comprehensive grants management policies and procedures to ensure that grants are managed 32 CC 07-02-2024
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efficiently, effectively, and in compliance with relevant rules and regulations. Staff is currently working on documenting grants management policies and procedures, but these have not yet been finalized. Grants management policies and procedures are important to promote compliance with grants and other financial reporting requirements.

In addition to policies and procedures, regular training and education can help increase awareness and understanding of compliance requirements and reduce the risk of unintentional violations. Staff reported the City recently improved processes for tracking staff completion of required compliancerelated training, such as mandatory safety training. However, 34% of surveyed employees reported that the quality of training and resources provided to stay abreast of compliance concerns was average. Since all employees share responsibility for compliance and any employee’s actions or decisions can have compliance implications, it is important for compliance-related training to be comprehensive and high quality. Surveyed employees suggested that training could be improved by expanding the training offered internally rather than from regional or state sources and offering guidance and training related to grant management and adherence to grant requirements.

Q: How would you rate the quality of resources/training provided at the City about how to remain in compliance with laws, regulations, and requirements?
Total equals 101% due to rounding.

Of survey respondents, only 36% of employees reported confidence that the City is unlikely to experience an issue with compliance in the next year. This indicates there may be a lack of confidence among some employees in the City’s compliance management process or that staff are not fully aware of compliance management processes. It can also be attributed to the changing regulatory environment at the federal and state levels, which is outside of the City’s control.

Uncertainty is often a driver of heightened feelings of risk. As noted above, awareness is a critical component of effective compliance management.

Q: What are the chances that the City will experience any issue with compliance (late or missed reporting, noncompliance with safety requirements, breach of sensitive data, etc.) in the next year? Financial Reporting
Cities are subject to a variety of laws and regulations that are designed to ensure transparency, accuracy, and accountability in financial reporting. The City’s most recent published Single Audit (FY22) found the City did not have proper internal controls in place to ensure appropriate segregation 7% 42% 34% 16% 2%
Excellent Good Average Poor Terrible
11% 25% 38% 23% 3%
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of duties between report preparation and approval or timely filing of financial reports in compliance with federal regulations for American Rescue Plan Act (ARPA) funding. Such issues can lead to the City being noncompliant with laws, regulations, and the terms and conditions of federal grant awards.

In response to this finding, the City added additional staff to the Treasury COVID-19 Relief Hub to address segregation of duties and staffing needs and began a Finance team group email to ensure that staff receive reminder emails on reporting deadlines. Strengthening grant management policies and procedures and using a consistent grant management tracking system would also strengthen controls in this area.

Some employees also reported that the City’s financial system limits the effectiveness of the City’s financial reporting. The system is not intuitive and there is not sufficient training available to navigate it, which can make financial reporting a more difficult process. A system replacement was planned but has been postponed due to budget cuts. The Finance Department is working on updated Standard Operating Procedures for financial reporting to improve challenges in this area.

Timeliness of financial reporting is also important for cities to reduce risks related to compliance and to support informed decision-making. Overall, survey respondents rated the timeliness of financial information as excellent (10%), good (35%), or average (38%).

Q: How would you rate the timeliness of the financial information you receive (e.g., reports, response time to requests, etc.)?
Total equals 99% due to rounding.

Grant Management
As discussed in Funding and Economics, although grant funding is not a significant portion of the City’s overall revenue, it is likely that it will become an increasingly important source of revenue as the City aims to achieve a balanced budget in the future.

Grant management in the City is decentralized. Grant management, including identification, application, and administration, is tracked by individual departments. Reporting on program performance and grant compliance is conducted by individual departments. Financial reporting on grants is conducted by the Finance Division. Successful decentralization relies on comprehensive, accessible, and updated policies and procedures in addition to strong internal controls.

As noted above, the City does not have documented grants management policies and procedures, which are important to promote compliance with grants and other financial reporting requirements.

The City also lacks a grant management tracking system to support effective tracking of grant activities and compliance with grant requirements. Staff also reported concerns over individuals with limited experience in grant management being called upon to manage increasingly complex grants. 10% 35% 38% 11% 5%
Excellent Good Average Poor Terrible
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To mitigate risk in this area the City can implement improved grants management controls, including documented policies and procedures, increased training, and effective tracking processes. Staff note that access to in-house grant management training would be extremely helpful.

OVERALL RISK LEVEL: MODERATE TO HIGH
Impact Likelihood Preparedness Trajectory
HIGH MODERATE TO HIGH MODERATE INCREASING – LOW
Risk Mitigation
● Maintain a one- to three-year schedule for updates to the Administrative Rules and Regulations of the Personnel Code.
● Continue to prioritize steps to mitigate turnover, including at the manager level. ● Develop the performance appraisal process to incorporate employee goals and growth plans and to move away from a paper-based process. ● Continue pursuing formal opportunities for employees to provide upstream or 360 evaluations.
● Prioritize retaining professional development opportunities. ● Provide formal management training to new managers and supervisors. ● Consider using a centralized training management system to track training requirements, schedules, and completions throughout the City. ● Develop formal cross-training and succession planning guidance. ● Develop strategies for diversifying the City’s workforce.

RESIDUAL RISK: MODERATE
Risk Areas: Risks associated with labor management/contracts, employee performance, training, compensation, benefits, turnover, grievances, overtime, resource availability, and communication.

Scope: Human capital and resource practices can span functions, including hiring, orientation, training, evaluating, counseling, career planning, compensation and benefits, and housing the policies that define an organization’s expected levels of integrity, ethical behavior, and competence.

Human Resources (HR) has 5.3 budgeted FTEs in FY24, including an HR Manager, two HR Analysts, and two HR Technicians. HR is responsible for the administration of all personnel-related programs, employee benefits, labor relation programs, risk management, safety and wellness, and a self-insured workers’ compensation program. Most survey respondents (76%) reported HR customer service as excellent or good, indicating high levels of satisfaction with the team. 35 CC 07-02-2024
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Q: How would you rate the quality of internal customer service provided to staff by the HR Department?
Total equals 99% due to rounding.

Personnel Policies and Procedures
The Administrative Rules and Regulations of the Personnel Code contain key personnel policies and procedures, including but not limited to those related to classification, recruitment, performance, discipline, grievances, and equal opportunity. The policies were last updated in 2013, though staff reported updates were recently drafted and are being reviewed. It is best practice that policies and procedures be updated every one to three years (see Policies and Procedures).

Recruiting and Retention
The City’s overall turnover rate decreased from 14.9% in 2022 to 10.5% in 2023 (turnover data by department was not provided). The 2023 national average turnover rate for state and local governments (excluding education) was 1.6%.3 While a turnover rate around 10% is considered reasonable, the City’s 2023 turnover rate is higher than the national average. Staff shared that recent turnover may be due to concerns about layoffs in some departments due to budget reductions. As previously noted in the Funding and Economics section, the impacts of the CDTFA audit have impacted employees’ outlook on the City’s financial future. Employees who are concerned about organizational financial stability may be less engaged in their work and may be more motivated to seek employment elsewhere.

Retaining manager-level employees has reportedly been a particularly difficult challenge. The City’s management turnover rate is higher than its overall turnover rate, though it also decreased from 18% to 13% in 2023. Management-level turnover can have a significant impact in a relatively small organization where backup is usually limited. HR is taking steps to mitigate manager-level turnover, including recently working with the City Manager’s Office to conduct listening sessions with mid-level managers to discuss employee engagement, morale, and how to better support them.

The average recruitment timeline for all positions in 2023 was 88.2 days and the average recruitment timeline for manager-level positions and above was 81.8 days. This is comparable to other local governments. Still, just over half (52%) of surveyed employees rated the City’s recruitment processes and support as average or poor, though respondents did not provide additional detail as to why they responded this way. However, recruitment is an ongoing challenge for local governments nationally. 3 U. S. Bureau of Labor Statistics. Economic News Release, Table 20, Annual Average Total Separations Rates by Industry and Region, Not Seasonally Adjusted. Accessed April 25, 2024: https://www.bls.gov/news.release/jolts.t20.htm 43% 33% 21% 2%
Excellent Good Average Poor Terrible
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Q: How would you rate the City’s recruitment processes and support? Compensation and Benefits
Approximately two-thirds (64%) of survey respondents report that the City’s compensation and benefits competitiveness was excellent or good. In the most recent compensation study that was completed in May 2022, the City was 2% above median total compensation on average. This suggests that the City’s pay scale may help recruit and retain highly qualified candidates, which provides a cascading benefit to the community.

Q: How would you rate the competitiveness of the City’s compensation and benefits? Total equals 99% due to rounding.

Interviewed and surveyed staff shared their concern that the budget adjustments may impact employee compensation and benefits. If compensation and benefits were to stagnate, or the working environment became more difficult while trying to do more with less resources, many employees feel that the City would not be a competitive place to work. However, staff reported City leadership has prioritized funding additional compensation and benefits in the midst of financial uncertainty, including funding employee salary increases and covering increased employee medical insurance costs.

External factors are also affecting risk in this area. Insurance rates are rising industry-wide, making it difficult to maintain affordable rates. Employee medical fees sharply increased last year, though the City covered the cost for employees. Both changes may cause an increasing financial burden on employees to cover their own health benefits. As personnel-related costs rise and costs are shifted to employees, there is an increasing risk that turnover at the City may increase.

Performance Management and Accountability
We identified the following concerns related to the City’s performance management process:
• The City uses digital forms (in Adobe), but the process is not automated or supported by software that uses a seamless performance management environment. An automated performance management system can streamline the process, promote confidentiality, and improve transparency and accountability.
17% 29% 32% 20% 2%
Excellent Good Average Poor Terrible
19% 45% 19% 12% 4%
Excellent Good Average Poor Terrible
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• Performance appraisals do not incorporate a process for employees and supervisors to set goals and support employees’ accountability and growth. While many survey respondents reported the effectiveness of the performance evaluation process was at least moderately effective (66%), about one-third (34%) rated the process as only slightly effective or not effective at all. Without clear goals and expectations, employees may not know what is expected of them or how they can improve their performance, which can lead to employee disengagement and a loss of productivity.
• There are no formal opportunities to provide upstream or 360 evaluations, so management may not receive feedback from the staff they supervise. Some survey respondents mentioned that the City would benefit from the opportunity to provide upstream evaluations. Administrative Services is piloting a 360-degree evaluation program this year.

Q: How would you rate the effectiveness of the current performance evaluation system? Training
The City provides mandatory training to all new employees and additional ongoing annual required training. City-provided training includes fraud, waste, and abuse; anti-harassment; cybersecurity; and required Occupational Safety and Health Administration (OSHA) training for Public Works Service Center employees. The City does not provide formal management training to new supervisors or managers, which is important to support new supervisors in understanding policies, policies, and legal requirements. Some efforts are being made to support the development of future leadership, including the City’s involvement with the San Mateo County Next Gen Committees and the Leadership Academy of Santa Clara.

The FY24 adopted budget included the reduction of professional development opportunities as an expenditure-cutting measure, including reduced Citywide training and conference attendance.

Surveyed employees had mixed responses when asked to rate their access to training and professional development resources needed to grow their careers. Limited training and development opportunities can lead to decreased employee morale and job satisfaction, which can ultimately impact employee retention and productivity.

Q: How would you rate your access to the training and professional development resources you need to grow your career?
23% 43% 27% 7%
Extremely effective Very effective Moderately effective Slightly effective Not effective at all 14% 33% 32% 13% 8%
Excellent Good Average Poor Terrible
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Training compliance is also contributing to the risk rating in this area. HR is currently developing a process to track mandatory compliance-related training Citywide. It is ideal to use a centralized training management system to track training requirements, schedules, and completions throughout the City. Such a system could be particularly helpful to support the City in tracking these trainings given the small size and limited resources of the HR team. Without such a system, the City is more susceptible to potential noncompliance with legal and regulatory requirements.

Succession Planning
As of January 2024, 36.4% (71) of the FTEs at the City were eligible for retirement in five years.

While eligibility for retirement does not necessarily indicate the likelihood of retiring, it’s important to continually monitor this metric. A growing proportion of retirement-eligible employees can present an increased risk to the City’s staffing and operational continuity. The City has not yet institutionalized succession planning or cross-training efforts, contributing to risk in this area. Without a deliberate, institutionalized program for effective knowledge management and transfer, a significant amount of institutional knowledge and technical expertise Citywide is at increased risk of being lost.

The recent slowdown in hiring personnel and possible future reductions to services have highlighted the importance of succession planning, cross-training, and ensuring that essential documentation is in place. Cross-training is currently at the discretion of individual managers.

Staff Demographics
Existing staff demographics tend to be somewhat reflective of the local community, but ideally, staff demographics would more closely mirror community demographics. Given the small size of the City’s staff, the percentage of staff diversity can be easily influenced by the hiring or departure of a small number of employees. A diverse staff can help to build trust and understanding between the City and the community and help ensure the City is providing equitable services to all residents. The data presented below is from the City’s website and the U.S. Census Bureau.4

REPORTED GENDER COUNT PERCENTAGE SANTA CLARA
COUNTY
Female 71 37.6% 48.9%
Male 118 62.4% 51.1%

REPORTED RACE
COUNT
(MALE)
COUNT
(FEMALE)
COUNT
(TOTAL) PERCENTAGE

SANTA CLARA
COUNTY
Asian 22 27 49 25.9% 41.4%
Black 3 0 3 1.6% 2.9%
Decline to Answer 4 3 7 3.7% Not available
4 U.S. Census Bureau, Quick Facts Santa Clara County, California. Accessed May 22, 2024:
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Hispanic 31 12 43 22.8% 24.7%
Two or More Races 4 1 5 2.6% 4.3%
White 54 28 82 43.4% 28.3%
Source: FY2024 Adopted Budget
OVERALL RISK LEVEL: MODERATE TO HIGH
Impact Likelihood Preparedness Trajectory
MODERATE MODERATE TO HIGH MODERATE INCREASING – LOW
Risk Mitigation
● Develop a multi-year strategic plan to identify long-term objectives, align resources, and provide greater organizational direction to both employees and residents.
● Promote tenure and stability in key leadership positions.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with how the organization plans for operations, strategy, and the future, including both short-term and long-range planning.

Scope: A comprehensive planning framework builds upon the strategic goals, and dives into the next layer of planning, which looks at the strategic objectives for not only the enterprise, but sets objectives for the departments, divisions, programs, and individual roles.

Planning documents are critical tools for guiding growth and development in a way that meets the needs of current residents while also preserving resources and opportunities for the future. The City has developed several guiding planning documents, including the City Work Program, which informs the major efforts of the City in any given year and the following year and the City’s General Plan 2015–2040, which describes the long-term goals for the City’s future related to land use and community design, transportation, housing, environmental resources, and health and safety. The City also has several emergency management-related plans, which include an Innovation Technology Disaster Recovery Plan, Emergency Operations Plan (EOP), and Local Hazard Mitigation Plan.

These plans provide the City with multi-year guidance and direction to help achieve Citywide goals, initiatives, and strategies.

To clarify priorities and inform decision-making, the City Council establishes overarching City goals every two years. Departments then develop associated work programs that supports those goals.

These work programs serve as guiding plans for departments, and outline project scopes, next steps, timelines, budgets, and responsibilities. In March 2023, City Council held a Goal Setting Workshop to 40 CC 07-02-2024
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discuss Citywide goals and priorities that would be used as a roadmap for the next two years. At this workshop, Council reaffirmed their commitment to the following five goals first adopted in February 2020: Public Engagement and Transparency, Sustainability and Fiscal Strategy, Housing, Transportation, and Quality of Life.

Council goals are meant to lead Citywide strategic thinking. However, staff report there is not a strong sense of strategic direction and there is a lack of clarity on Citywide initiatives. In the 2020 ERA, the City’s lack of a multi-year strategic plan was identified as a significant gap in planning and strategy.

The City still has not developed a strategic plan that encompasses long-term initiatives, goals, and strategic decision-making. This limits the City’s ability to effectively plan and allocate resources and achieve its long-term vision; it also creates a risk that priorities will shift dramatically while mediumand long-term initiatives are still in progress. In a resource-constrained environment, careful strategic planning is even more important. Without a multi-year strategic plan, the City may be more vulnerable to short-term thinking and competing priorities, which can make it difficult to achieve its goals and objectives over the long term.

While the current City Manager has been in their role since August 2022 and the City is working toward increased leadership stabilization, turnover of key leadership positions can impact the effectiveness of planning efforts and disrupt the continuity of projects. Without stable leadership and a consistent vision, there is a heightened risk of strategic drift, where the City gradually veers off course from its long-term goals. This may lead to inefficiencies, missed opportunities, and a lack of alignment with community needs. When asked to rate the quality of organizational planning that happens at the City, responses varied with most participants responding average (40%). This may reflect a desire from staff to strengthen the City’s organizational planning environment.

Q: How would you rate the quality of organizational planning (strategic planning, annual operations planning, financial planning, etc.) that happens at the City? Total equals 101% due to rounding.

Key Performance Indicators
The City has key performance indicators (KPIs) for each department. These KPIs include an overall goal, the effects of that goal, and the purpose that goal may serve for residents. The City reports on these KPIs annually in the mid-year report and provides data comparison for two prior years. KPIs are crucial for cities in reducing risks because they enable early issue detection and data-driven decisionmaking. By monitoring KPIs, the City can efficiently allocate resources, hold departments accountable, and proactively address risks.
13% 28% 40% 13% 7%
Excellent Good Average Poor Terrible
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OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE TO HIGH MODERATE MODERATE FLAT
Risk Mitigation
● Continue to encourage standard use of Cityworks for asset management. ● Develop a plan to address deficiencies for facilities that received a poor rating in the Facility Condition Assessment.
● Develop a plan to address City Hall’s seismic deficiency, or to otherwise mitigate the risk of a seismic event.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with the ongoing maintenance, management, tracking, reporting, accountability, accounting, and physical safeguarding of assets, including the organization’s assets used in support of business processes (i.e., vehicles, mobile devices, IT equipment, etc.).

Scope: Asset management includes the supply, deployment, and maintenance of the organization’s resources. It also includes physical or logical access to data and locations (offices, warehouses, etc.). Asset management is inclusive of the connected strategies, processes, people, and technology that make up the foundation of enabling the organization to meet service levels and minimize the overall cost of asset ownership.

Asset Management
City operational divisions use Cityworks for asset management, based on a GIS-centric approach.

Although the tracking of small items such as tools and equipment was a concern in the 2020 ERA, staff report that progress has been made in this area, particularly the Citywide adoption of its asset management system. Improvements are ongoing and the focus has now moved to standardizing the asset and maintenance information that is being tracked and modifying the data input process to simplify operations.

Surveyed employees generally feel the City’s assets are well-tracked and accounted for and rated the condition and management of non-IT equipment highly.
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Q: How well do you feel the assets of the City are tracked and accounted for? Total equals 99% due to rounding.

Q: How would you rate the condition of the non-IT equipment you use for your job? To reduce expenditures, staff are exploring options to defer non-essential asset management activities, such as increasing the standard fleet replacement schedule and reducing the level of sidewalk maintenance. While these changes may be necessary to balance the City’s budget, strategies like these may also put the City at risk for increased maintenance costs, decreased asset reliability, and public safety concerns, if the appropriate balance is not maintained.

Facility Conditions
The City’s facility conditions are the primary driver of the risk rating for this area. The City contracted with Kitchell Corporation to conduct a Facility Condition Assessment of City-owned and operated buildings in 2022. The assessment identified $4.8 million in Priority 1 capital renewal costs and $2.3 million in Priority 2 costs. This represented about 21% of the total capital renewal costs identified ($34.3 million). Included in the Priority 1 projects are $1.6 million in projects at City Hall, which received a poor condition rating, and $1 million in projects at the library.

City Hall received a poor condition rating in the 2022 assessment described above, and as noted in the 2020 ERA, previous engineering studies have indicated that City Hall’s structure is deficient in seismic force resistance. Additionally, concerns about the seismic safety of City Hall were a major theme in the staff survey. The City is in a seismically active region with several active earthquake faults. One of the longest and most active faults in the world, the San Andreas fault, crosses the western portion of the City. Interviewed City leadership reported that awareness of this issue is high, but building replacement is estimated between $60 million and $80 million, and a seismic upgrade is estimated between $20 million and $30 million. There are no projects planned to address the seismic deficiency, which impacts the City’s preparedness rating in this area.

City pavement and sidewalks are generally kept in good condition. The City inspects sidewalks regularly and catalogs required maintenance, which is addressed through an annual sidewalk maintenance program.
8% 39% 39% 13%
Extremely well Very well Moderately well Slightly well Not well at all 30% 50% 20%
Excellent Good Average Poor Terrible
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Deferred maintenance contributes to the risk rating in this area. The City reportedly has $63 million in deferred maintenance projects, but this may not include all deferred maintenance needs due to the City’s lack of a long-term CIP (see Capital Improvement Program). Over time, the total cost of deferred maintenance will grow proportional to inflation and increased cost of goods and services.

This will make it more difficult for the City to effectively reduce its deferred maintenance.

OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory
MODERATE TO HIGH MODERATE MODERATE DECREASING – LOW
Risk Mitigation
● Uphold implementation of recently developed or revised governance-related documents, including the City Council Procedures Manual and the new ethics code.
● Continue implementing recommendations from the 2022 Grand Jury Report and 2023 Enterprise Leadership Assessment.
● Continue work to improve effectiveness and productivity of City Council meetings.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with ongoing oversight; ethics and values; control environment; policy management; risk management; accountability; performance management; coordination and communication; and defined roles, responsibilities, and authorities.

Scope: Governance incorporates all governance-related groups, processes, policies, and operations.

City residents elect officials to provide community leadership and govern the administration of public services. The City operates under a Council-Manager form of government, directed by a five-member City Council. Under this form of government, the City Council sets policy, while a professional City manager is responsible for implementing those policies and managing day-to-day operations of the City.

Council elections take place every two years, with Council members serving staggered four-year terms. The City established a City Council Procedures Manual (the Manual) in 2023 to define bylaws and procedures related to Council operations and activities. The Manual supports clarity in Council processes, roles, and responsibilities and reflects the City’s ongoing efforts to enhance governance.

The City Council approved additional revisions to the Manual in March 2024 to clarify procedures related to attendance, reporting, consent calendar, and Council questions and deliberations.

The duration of City Council meetings has historically been a challenge for Council members, City staff, and community participants alike. Long meetings, characterized as those extending greater than five hours, or past midnight, that impact staff capacity and productivity, are less accessible to members of the public, and may signal a governing body that operates at a tactical level rather than 44 CC 07-02-2024
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in a strategic or policy level. Between 2021 and 2023, the average City Council meeting lasted between 4 and 5.7 hours.

YEAR
TOTAL # OF

MEETINGS

AVERAGE MEETING
LENGTH
# OF MEETINGS PAST

MIDNIGHT
2021 59 5.7 hours 1
2022 64 5.2 hours 5
2023 37 4.0 hours 2
To address the strain of the length of meetings and focus the Council on priorities and policy, the Manual referenced above included supplementary guidance for the conduct of City Council meetings.

In Section 8.9, meeting length is addressed. The Manual asserts that City Council meetings are to adjourn by 11:00 p.m., unless a motion to extend is passed. In the event of a meeting extension, further guidelines are provided. Interviewed staff report that the implementation of additional policies and procedures regarding City Council meetings has contributed to an improvement in the overall length of the meetings.

Grand Jury Report
Historically, relationships between Council and City staff have been strained. In 2022, following a series of complaints regarding the behavior and practices of City Council members, the Santa Clara County Civil Grand Jury (Civil Grand Jury) conducted an investigation of City Council, A House Divided: Cupertino City Council and City Staff. This report “confirmed the existence of adversarial and dysfunctional behavior toward City staff exhibited by some City councilmembers,” and suggested that “the behavior of councilmembers may need to be reviewed and good government practices implemented to remediate the dysfunction that currently exists.” Following these findings, the City undertook an independent investigation and conducted an Enterprise Leadership Assessment as part of its internal audit program. Several of the recommendations in the Enterprise Leadership Assessment were already in progress at the time of the study. As a result of these reports and a commitment to improve City governance, the City has taken several actions to improve governance:
• A new ethics code was adopted and implemented.
• As previously noted, the Manual was created and implemented. • The City updated qualifications for certain Commissioner appointments to improve the recruitment process and increase accessibility for interested, eligible community members. • Continued efforts are underway to revise the Commission Handbook.

While the City has acted quickly to improve the governance environment, trust and relationship building takes time, which contributes to the moderate risk rating in this category. As trust continues to build, the risk rating will likely decrease.

Commissions
The City has established various committees and commissions to address specific areas of focus.

There are 10 commissions tasked with advising the City Council in the formation of policy. With the 45 CC 07-02-2024
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exception of the Planning Commission, all other commissions function in a strictly advisory role to the City Council, as is appropriate and consistent with best practices. Commissions include:
• Arts and Culture Commission
• Bicycle Pedestrian Commission
• Housing Commission
• Library Commission
• Parks and Recreation Commission
• Planning Commission
• Public Safety Commission
• Sustainability Commission
• Technology, Information, and Communications Commission • Teen Commission
The City also has three bodies that review specific topics affecting the City and make recommendations to City Council: the Audit Committee, Disaster Council, and Sister City Committee.

In addition, the Administrative Hearings Committee reviews select planning and zoning actions.

Generally, one or two Council members are assigned as members, and the committees may include members from the public or staff.

As outlined in the 2023 Enterprise Leadership Assessment, while the foundational duties of most governance groups are codified in the City’s Municipal Code, the City has not yet established the process of developing individual charters to outline each group’s purpose and member roles and responsibilities. It was frequently reported that certain group members believe they have the authority to direct staff on administrative matters or assign work tasks. This is a breach of the group’s actual authority and can create tension when staff members are put in a position to deny or redirect the work requests. The report also notes that several groups often do not have significant volumes of work, which can create challenges to keeping members productively engaged.

To address risks in this area, the City should work collaboratively to further review, adopt, and implement relevant recommendations from the Enterprise Leadership Assessment. 46 CC 07-02-2024
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OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE MODERATE MODERATE FLAT
Risk Mitigation
● Conduct targeted internal controls reviews and testing to assess compliance with updated policies and procedures.
● Ensure that decentralized accounting and finance processes are accompanied by clear procedures and adequate training.
● Continue efforts to update policies and procedures.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with preventive controls (e.g., tone at the top, policies and procedures, and passwords), detective controls (e.g., segregation of duties, reconciliations, and variance reports), and corrective controls (e.g., changes to policies and procedures, training, and loss of privileges).

Scope: Control activities are the processes and procedures that help ensure that management’s risk responses are carried out; they are not performed simply for their own sake or because it seems to be the “right” or “proper” thing to do. Control activities occur throughout the organization, at all levels and in all functions. They include a range of activities as diverse as approvals, authorizations, verifications, reconciliations, reviews of operating performance, security of assets, and segregation of duties.

Internal controls are processes, procedures, and mechanisms implemented within an organization to ensure the achievement of objectives, safeguard assets, maintain accurate financial reporting, and ensure compliance with laws and regulations. The City’s internal control environment represents the processes designed to provide reasonable assurance about the reliability of financial reporting, efficiency and effectiveness of operations, and compliance with applicable laws and regulations.

Internal controls also safeguard the City’s assets from unauthorized acquisition, use, or disposition.

An external firm conducted an internal controls review prior to the establishment of the City’s internal audit function. As noted in the Accounting and Finance section of this report, many financial transactions are somewhat decentralized, which can impact the effectiveness of internal controls.

While decentralization has some benefits, it increases risks of inconsistent financial practices, noncompliance with laws and regulations, fraud, errors, and monitoring difficulty.

In a decentralized environment, strong policies and procedures are particularly important. It is recommended that policies and procedures are updated every one to three years. In accordance with best practices, the City’s financial and procurement policies have been updated within the last year.

As noted in other sections throughout this report, the City has policy gaps related to Human Resources and IT. Policy gaps represent internal control deficiencies and increased risks of waste, financial impact, and legal consequences (see also Policies and Procedures). 47 CC 07-02-2024
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In 2022, the City underwent a single audit as required by the federal government, which assessed the City’s internal controls and compliance for the prior FY (FY22) related to federal funding. The audit did not uncover any internal control deficiencies within the City that would meet the criteria for material weaknesses, as defined in the report, but did note that unidentified deficiencies or material weaknesses may exist. As a result of the audit, it was recommended that the City revisit its control design and revise its procedures to ensure proper controls over preparation, review, and submission of ARPA reports and to ensure timely submission of all reports (see also Compliance and Financial Reporting). In response, the City developed the following plan:
• Added an additional staff person
• Filed its late report
• Added a Finance team group email to ensure various staff would receive reminder emails on reporting to support improved reporting compliance
OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE MODERATE TO HIGH MODERATE FLAT
Risk Mitigation
● Continue to promote stability and tenure in management positions (see also Human Resources).
● Provide formal management training to new managers and supervisors (see also Human Resources).
● Continue to solicit feedback from staff on communication practices and use the results to strengthen internal communication practices.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with organizational leadership, management practices, leadership strategic activities, and operating styles.

Scope: Management's philosophy and operating style affect the way an organization is managed, including the kinds of risks accepted. The attitude and daily operating style of top management affect the extent to which actions are aligned with risk philosophy and appetite.

Strong management structures and leadership help ensure that a city operates efficiently and effectively. Leaders are responsible for decision-making that provides clear direction as well as providing a foundation for governance, policies, and programs. Good leadership within a city promotes stability for employees, residents, and stakeholders.

The City has experienced changes in senior management personnel in recent years, including frequent turnover in the City Manager role. As noted previously, the City Manager’s Office has made a concerted effort to stabilize leadership. Change in management-level positions can create a sense of instability throughout the organization and impede the continuity of Citywide initiatives and actions.

In 2021, the City’s management level turnover rate was 7%. In 2022, it was 18%, and in 2023, it was 48 CC 07-02-2024
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13%. While the City’s recent turnover rate has largely aligned with industry averages, staff reported that directives, goals, and expectations have changed over time as each leader has their own unique leadership style. Constant changes in directives, goals, and expectations due to shifting leadership styles can create confusion among staff members. This inconsistency can lead to a lack of clarity regarding priorities and objectives, hindering productivity and effectiveness.

When asked how confident they were in senior leadership, the majority of staff (53%) responded moderately confident. Notably, 38% said either slightly confident or not confident at all with only 9% saying very confident or extremely confident. Staff also note that there is a rise in stability among leadership and a clearer understanding of expectations with the growing tenure in pivotal leadership roles.

Q: How confident are you in the senior leadership team of the City? Given recent turnover in leadership roles, there's an increased need for robust and standardized management onboarding and training procedures (see also Human Resources). When new leaders enter positions, it is important to have strong management onboarding and training procedures in place to ensure they can quickly adapt to their roles, understand organizational processes, and effectively lead their teams. Robust and standardized training helps to mitigate the negative impacts of turnover by enabling new leaders to become productive and efficient in their positions more quickly, thus reducing disruptions and maintaining continuity in operations. When managers were asked to rate the quality of training they received, the majority (71%) said either average (44%), poor (21%), or terrible (6%).

Q: How would you rate the quality of the management training you have received? Total equals 101% due to rounding.

Internal Communication
Communication remains a perennial challenge for the City as people, processes, and technology continue to change. In interviews and the all-staff survey, manager-level staff reported feeling disconnected and uninformed, experiencing challenges staying in the right communication loops.

Staff reported a lack of clarity in internal communication regarding the City’s budget challenges due to the CDTFA audit, particularly concerning its implications for staffing and service delivery. The City uses several methods to communicate information to staff, including department meetings, leadership 6% 3% 53% 16% 22%
Extremely confident Very confident Moderately confident Slightly confident Not confident at all 6% 24% 44% 21% 6%
Excellent Good Average Poor Terrible
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team meetings, email distributions lists, and posts through the City’s intranet. While having a variety of communication modalities is encouraged, there are some associated challenges and risks to having an abundance of communication modalities. As staff reported, it is difficult ensure that information is updated across all channels, and there are challenges for newer individuals to effectively use established channels, either to distribute or receive information.

When asked how they would rate the quality of communication received from leadership, only 36% of respondents said excellent (9%) or good (27%), with the remaining 63% responding average (33%), poor (21%), or terrible (9%).

Q: How would you rate the quality of the communication you receive from leadership? Total equals 99% due to rounding.

Effective internal communication is important as it facilitates coordination and collaboration among different departments, teams, and individuals. This enables employees to work together seamlessly, share information, and coordinate efforts to achieve common goals. More communication is not always the most effective method to mitigate risk related to communication, rather evaluating each modality for quality and effectiveness can help keep individuals informed of important updates.

OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE TO HIGH MODERATE MODERATE FLAT
Risk Mitigation
● Make proper adjustments and preparations for anticipated reductions on operations and service delivery.
● Provide staff with necessary information and guidance to prepare for future constraints on operations and service delivery.
● Commit to consistent, recurring resident satisfaction surveys.

RESIDUAL RISK: MODERATE
9% 27% 33% 21% 9%
Excellent Good Average Poor Terrible
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Risk Areas: Risks associated with community expectations, level of service commitments, scheduling, program/service delivery, sustainability, quality, process efficiencies, and resource allocation.

Scope: Day-to-day operations across the organization, and efficient and effective delivery of the organization’s programs and services in alignment with goals, vision, and mission.

Operations and service delivery in a city refer to the day-to-day activities and functions that municipal governments undertake to provide essential services and maintain the functioning of a city. A city’s general plan provides a framework and guidance for how these services are planned, delivered, and maintained. As defined in the City’s 2015–2040 General Plan, the City aspires to be a balanced community with quiet and attractive residential neighborhoods; exemplary parks and schools; accessible open space areas, hillsides, and creeks; and a vibrant mixed-use “Heart of the City.” The mission of the City is to provide exceptional service, encourage all members of the community to take responsibility for one another, and support the values of education, innovation, and collaboration.

At the most fundamental level, the City’s mission is to direct the efficient and effective delivery of municipal services. The City provides a broad range of services to residents, including:
• Community Development (planning, building permits and plans, code enforcement) • Finance (billing and payment processing)
• Public Works (infrastructure and streets maintenance) • Recreation and Senior Services
• Public Information
City planning documents, especially ones that are designed with consideration of residents, enable cities to be responsive and transparent in action. Using a general plan as a guide, the City can help inform decisions that align with community priorities and goals, leading to outcomes that resonate with residents and enhance their satisfaction.

Staffing Levels
As noted in Organization and Staffing section, staffing concerns were noted in both interviews and survey responses in Community Development, Parks and Recreation, and Public Works, all departments who provide resident-facing services. Understaffing in these areas can impact the quality and availability of services provided to the community. If staffing levels are insufficient to meet the demand for services, there may be longer wait times, reduced service hours, or a decrease in the quality of services provided, which can lead to decreased resident satisfaction and a negative impact on the City’s reputation.

Service Delivery
The City’s staffing reductions will impact service delivery in the future as community expectations often do not keep up with resource constraints in cities. However, few issues related to service delivery were reported in interviews. The main challenge noted was related to permitting delays due to limited staff resources and a high volume of applications. In addition to reducing economic activity in the City or delaying construction projects, which can lead to frustration from residents and businesses, permitting delays can negatively impact the City’s reputation (see also Reputation and Public Perception).
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Staff report that City residents are often vocal, with high expectations for the services the City provides, which can make it difficult to fulfill all demands. When staff were asked to rate how well the City is able to deliver core services to the public, the majority of survey respondents (73%) said either excellent or good. While this is a large majority, it is a notable 14% decrease from 2020. In 2020, when asked to rate how well the City is able to deliver core services to the public, 87% of respondents said either excellent or good. This decrease may be in anticipation of the City’s impending budgetary restrictions. A risk associated with the reduction in revenue is that the City anticipates the need to adjust levels of service accordingly. City staff report that levels of service provided to the community are high and that changes to service levels are likely to be noticed.

Q: How would you rate the City's overall ability to deliver core services to the public in an effective manner?
2020
2024
Total equals 101% due to rounding.

To gain further insight into resident satisfaction, the City conducts a resident satisfaction survey every few years. The City did not conduct a resident satisfaction survey in 2020 due to the COVID-19 pandemic and conducted a Community Budget Survey in 2023 instead of the resident satisfaction survey. The City is currently working to relaunch the community satisfaction survey, which will provide more recent insight into community member satisfaction with City services. 35% 52% 13% 1%
Excellent Good Average Poor Terrible
35% 38% 25% 1%1%
Excellent Good Average Poor Terrible
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OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory
MODERATE TO HIGH MODERATE MODERATE INCREASING – LOW
Risk Mitigation
● Evaluate staffing in Community Development, Parks and Recreation, and Public Works and ensure the staffing model is adequate for the services provided.
● Review and update job descriptions, and the associated roles and responsibilities, to improve clarity.

RESIDUAL RISK: MODERATE
Risk Areas: Risks associated with how personnel are organized, as well as staffing levels and skills.

Scope: An entity’s organizational structure provides the framework to plan, execute, control, and monitor its activities. Organization and staffing encompass hierarchy, chain of command, span of control, and staffing levels. Staffing includes specific positions, counts, and capacity. A relevant organizational structure includes defining key areas of authority and responsibility and establishing appropriate lines of reporting.

The City’s organizational structure is composed of six main departments: Administration (City Manager’s Office, City Attorney’s Office), Administrative Services, Community Development, Innovation and Technology, Parks and Recreation, and Public Works. Span of control typically varies depending on the function5; however, based on a review of organizational charts, span of control appears to be appropriate across the organization. Additionally, no concerns about organizational structure were identified in interviews.

The ratio of City staff to residents has increased since FY20, meaning there are now fewer residents per City staff member. This is because both the City’s population has decreased, and the total number of staff has increased. In FY20, Cupertino had a population of 66,762 with a total of 203.75 authorized positions. This is a ratio of one City staff for every 327.7 residents. In FY24, Cupertino has a population of 60,869 with 212 authorized positions. This is a ratio of one City staff for every 287.1 residents.
5 McKinsey & Company. “How to Identify the Right ‘Spans of Control’ for Your Organization.” Accessed April 25, 2024:
https://www.mckinsey.com/capabilities/people-and-organizational-performance/our-insights/how-to-identify-the-right-spans-ofcontrol-for-your-organization 53 CC 07-02-2024
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FISCAL YEAR FTE POPULATION

RATIO OF CITY STAFF

TO RESDIENTS
2020 203.75 66,762 327.7
2024 212 60,869 287.1
Overall, staff reported adequate staffing in most areas. However, staffing concerns were noted in both interviews and survey responses in Community Development, Parks and Recreation, and Public Works (see also Operations and Service Delivery). To address the City’s budget deficit, a total of 14 positions were cut in FY24, including staffing in these three departments and Administrative Services.

When vacant positions are removed or not filled, the responsibilities of that position are often transferred onto existing positions. This can result in increased workloads, fear of burnout, and confusion regarding roles and responsibilities, which are all concerns that are likely to increase. While eliminating vacant positions may be necessary to address the City’s structural deficit, the City must continue to practice responsible workload management, such as through reassigning tasks, adjusting deadlines, or streamlining processes to reduce risks in this area. As positions change and responsibilities shift, clarity surrounding job descriptions has decreased. When asked to rate the quality of job descriptions, staff reported varying levels of satisfaction. While 49% reported the quality of job descriptions as either excellent (6%) or good (43%), 52% reported either average (34%), poor (11%), or terrible (7%). When job descriptions are inadequate and roles and responsibilities are unclear, risks related to process inefficiency, poor staff performance, and low employee morale increase.

Q: How would you rate the quality of the current job descriptions used by the City in terms of defining roles, responsibilities, qualification criteria, and position goals? Total equals 101% due to rounding.
6% 43% 34% 11% 7%
Excellent Good Average Poor Terrible
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OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE MODERATE MODERATE FLAT
Risk Mitigation
● Continue efforts to update personnel policies and procedures. ● Prioritize addressing other key policy gaps in IT and grants management, as well as implementation of recommendations from the Citywide policy review and gap analysis.
● Develop and implement a policy on policies to promote a centralized and standardized approach to reviewing and updating policies and procedures. ● Establish a centralized location for policies and procedures to make them more easily accessible to staff.
● Ensure staff are provided training when policies and procedures are implemented or updated.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with policies, processes, and procedures, including efficiency, effectiveness, and level of documentation.

Scope: Policies and procedures play a critical role in providing the guidance required to ensure all functions operate efficiently, effectively, safely, and consistently across the organization. A policy establishes what should be done, and procedures affect the policy. Policies and procedures also play an important role in protecting against the loss of institutional knowledge.

Policies and procedures guide internal operations and help ensure that every employee knows the rules and expectations. Policies and procedures should be dynamic documents that employees can reference with regularity. Keeping policies and procedures up to date is an essential part of risk mitigation as policies and procedures help ensure that management’s directives to mitigate risks are carried out consistently at all levels of the organization and at various stages within different business processes.

In the City’s 2020 ERA, the City’s outdated policies and procedures were identified as a risk area.

Since then, the City has updated some policies and procedures, including several financial policies and procedures as well as policies and procedures related to purchasing. Additionally, the City has committed to incremental updates to policies and procedures and has undertaken a Citywide policy review and gap analysis in the current internal audit program. This review will provide a more comprehensive and detailed analysis of the current state of the City’s policy and procedure environment.

As noted in other sections throughout this report, the City has key policy gaps related to the following:
• Personnel policies and procedures have not been updated since 2013, though they are in the process of being updated (see Human Resources).
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• The City is in the process of documenting grants management policies and procedures (see Compliance and Financial Reporting).
• Key information technology policies and procedures have not been updated since 2018 (see Information Technology).

According to best practice, the City should review policies and procedures to ensure they are consistent with laws, regulations, advances in technology, and operating practices at least every three years. Outdated policies and procedures can contribute to reduced efficiency and effectiveness as well as communication and accountability challenges. In the absence of up-to-date documented policies, staff rely on historical practices and verbal directions, which requires significant institutional knowledge to perform and could be inconsistent with management expectations over time. To date, policy and procedure updates have largely been led by managers at the individual department level.

While many updates have been made, the lack of a consistent, standardized Citywide policy update process creates a gap in the review process as there is limited assurance that regular reviews and updates will be conducted.

Additionally, the City has yet to establish a centralized location for policies and procedures making it difficult for staff to locate the most up-to-date guidance. A key component to effectively adopt updated policies and procedures is ensuring that they are communicated and accessible to staff. This may also lead to different departments or individuals maintaining their own versions of policies and procedures, leading to inconsistencies across the organization. This can also result in confusion and errors in implementation. Policies and procedures should be stored centrally in a searchable format.

When new versions are published, alerts should be communicated, and training should be provided.

OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory
MODERATE MODERATE TO HIGH MODERATE DECREASING – LOW
Risk Mitigation
● Continue to plan and provide training related to updated procurement and contracting policies and procedures.
● Formalize procurement card (P-Card) training requirements and establish rules for who may carry a P-Card.
● Consider providing contract-related training for employees who manage their department’s contracts.
● Continue to plan for an eventual transition to centralized procurement and contracting functions.

RESIDUAL RISK: LOW TO MODERATE
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Risk Areas: Risks associated with purchasing processes and contract administration for goods and services, including cost-savings, efficiencies and effectiveness, transparency, adherence to laws and regulations, monitoring costs and vendor payments, supply chain risks, and vendor performance and service delivery.

Scope: Procurement and contracting includes purchasing processes (e.g., purchase requisitions, due diligence, approvals, purchase orders, and receiving) and contract administration (e.g., compliance with terms and conditions, payments, and change orders) for goods and services.

In any public organization, procurement processes are the means through which critical and strategic services, supplies, and construction are purchased to support essential functions. The City’s risk profile in this area has decreased since the 2020 risk assessment due to the City’s work on updating policies and procedures and committing resources to updating the City’s approach to procurement.

That work is still in progress, which is what largely informs the City’s moderate risk rating.

A Procurement Operational Review conducted in 2022 found that the City’s decentralized procurement activities led to inefficiencies as departments created customized processes for common procurement practices. To address this, the City has recently begun the process of moving toward a hybrid procurement model (where policies, procedures, and systems are centralized but operations are decentralized), and eventually will move to a centralized model. A full-time procurement manager was hired in 2023.

To support a hybrid procurement model and move toward an overall more strategic approach to procurement, the Purchasing Manager has started an interdepartmental effort to begin updating related policies, procedures, and templates and strengthening internal controls. For example, the City’s Purchasing Policy and accompanying Purchasing Matrix was updated in February 2024. This effort has decreased the likelihood of risk and increased the City’s preparedness for risk in this area.

Updating policies is important, but it represents change for the employees who are responsible for departmental purchasing tracking and reporting. Most surveyed staff felt positive about the upcoming change and were looking forward to additional clarity and stabilization around the purchasing process, but some shared that the procurement process feels like it is in a constant state of change.

While training for City staff on new purchasing policies is in development for this calendar year, there is an inherent risk of creating confusion or encountering resistance to change when updating a significant process or policy.

Q: How easy is it to acquire the goods and services your division/department needs? 11% 19% 36% 32% 2%
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Q: How would you rate the usefulness of documented policies and procedures in terms of providing adequate guidance on purchasing?
P-Cards
The P-Card program also contributes to risk in this area. The Finance Division currently administers the P-Card program and is responsible for ensuring only current employees have active cards. The 2020 risk assessment noted that the City did not have clear policy requirements or an accountability mechanism to ensure that individuals in positions with purchasing-related responsibilities attend both initial training and ongoing refresher courses. Therefore, credit card use, including users and approvals of purchases, was noted as being occasionally unclear for staff. Although Finance has since developed a Credit Card Policy that governs the credit card request process, proper use, and internal controls, this is still an issue as P-Card training requirements have not yet been formalized and rules for who may carry a P-Card have not been determined. Finance staff intend to develop guidelines about who may carry a City P-Card this year.

Contracting
Contract management remains decentralized and departmental staff are responsible for managing contracts, which is driving the City’s preparedness rating in this area. Oversight of the contracting process was a concern in the 2020 risk assessment, and some progress has been made since then, including the following:
• The City recently reduced the competitive procurement threshold from $60,000 to $5,000, since most City contracts are relatively small.
• The City Attorney’s Office developed standardized templates that staff can choose from to support contracting activities.
• The IT team developed a bid management application for publishing City RFPs and bids and providing the capability for vendors to submit bids electronically.

Surveyed employees identified the need for more contract management-related training as well as a desire for more detailed guidance on contracting processes. Because the City outsources a variety of functions and activities, it is essential that employees have sufficient training and guidance to carry out contracting processes consistently and in compliance with regulatory requirements and standards.
15% 28% 38% 17% 2%
Excellent Good Average Poor Terrible
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Q: How would you rate the usefulness of documented policies and procedures in terms of providing adequate guidance on contracting?
Total equals 99% due to rounding.

Finally, the City uses CobbleStone, an electronic contract processing software and document repository. CobbleStone does not easily integrate with New World, the City’s Enterprise Resource Planning (ERP) system. This results in duplicative and manual efforts between the two systems and puts the City at risk of reporting errors. As mentioned in Accounting and Finance, the City was previously pursuing an ERP update but deprioritized that effort as an expenditure-saving measure.

OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory
MODERATE MODERATE MODERATE INCREASING – LOW
Risk Mitigation
● Strengthen proactive communication to the public, specifically concerning the City’s budget and subsequent effects on service delivery. ● Clarify roles and responsibilities regarding communication from the City to public.
● Continue to re-establish the resident satisfaction survey to track public perception over time and engage a broader portion of the community.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with the organization’s reputation and the public’s perception of the organization, including its competency (financial performance, safety and security, and responsiveness), transparency (openness and integrity), and guardianship (demonstrating care and consideration).

Scope: The reputation of an organization refers to how a broad group of stakeholders perceive the accumulated decisions, actions, and behaviors of the people within an organization. This social judgement is influenced both directly and indirectly by interactions with employees, with programs and services, and by commentary in the public domain (e.g., news stores, press release, and social media).

The operations of a local government like the City are complex, multifaceted, and impact the lives of residents, either directly or indirectly, every single day. In essence, the City’s reputation directly influences the effectiveness of the City’s governance overall function, and ability to recruit and retain employees.
17% 28% 37% 15% 2%
Excellent Good Average Poor Terrible
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Recent challenges at the City have created obstacles in preserving a strong and positive public reputation, including challenges related to:
• The relationship between the City Council and staff (see also Governance) • The CDTFA audit decision and its expected impact on City services (see also Funding and Economics and Operations and Service Delivery)
• Affordable housing, including the City’s delayed Housing Element (see also Planning and Strategy)
• Permitting process delays due to a high volume of permit applications and limited staff resources Such challenges can impact the City’s reputation and attractiveness to residents, businesses, and investors.

It is important for cities to take proactive steps to manage their reputation, including investing in public relations and marketing efforts and promoting transparency and accountability. The City hired a new Communications Coordinator to fill a longstanding vacancy in the beginning of 2024. This position is intended to improve proactive communication to the public, as well as refine the City’s approach to branding.

Resident Perception and Satisfaction
As noted in Operations and Service Delivery, the City did not conduct its regularly planned resident satisfaction survey in 2020 due to the COVID-19 pandemic. Revitalizing the community satisfaction survey will be an important mechanism as the City navigates community response to changes in services and expectations. In general, staff report that the City has a good relationship with the City’s residents. When asked what type of reputation they felt the City had within the community, the majority (51%) of respondents said good, with a notable 10% saying excellent. In interviews, staff reinforced this sentiment referencing a long-standing history of providing quality services and attentiveness to the community. However, the City faces increased risk trajectory in this area given the potential friction between service delivery expectations and the reality of what the City can provide and fund. There is an increased risk that diminished service levels and staffing will contribute to a poor perception of the City, which can impact residents, businesses, local economy, and recruitment and retention efforts.

Q: What kind of reputation do you think the City has within the community? The majority of survey respondents (70%) also reported that the City’s overall consistency of communication with the public was either good or excellent. Moreover, when asked how responsive the City is to resident feedback, 47% said the City is appropriately responsive and 30% said slightly responsive. This feedback reflects the sentiment that a majority of respondents view the City's communication with the public positively.
10% 51% 31% 8%
Excellent Good Average Poor Terrible
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Q: How would you rate the City’s overall consistency of communication with the public? Q: How responsive is the City to resident feedback?
OVERALL RISK LEVEL: MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE TO HIGH MODERATE MODERATE FLAT
Risk Mitigation
● Continue efforts to update the City’s EOP.
● Prioritize regular updates to the City’s Continuity of Operations Plan (COOP). ● Increase staff participation in and awareness of available emergency response training, particularly related to staff roles and responsibilities in emergencies. ● Consider strategies to increase employee’s feeling of physical safety at work, such as proactive plans to protect public-facing employees in the event of a security threat.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with the organization’s formal/structured risk management programs, such as employee health and safety programs, operational risk management programs, and incident response and emergency management efforts.

Scope: Risk programs include administration of the general liability, workers’ compensation, safety, disability management, and property programs. Risk efforts also include contract/insurance certificate review, insurance procurement, emergency preparedness programs, and continuity of operations planning.

HR is responsible for administering the City’s risk management, safety, and wellness programs. HR also oversees the City’s workers’ compensation program, unemployment insurance program, OSHA 20% 50% 26% 3%
Excellent Good Average Poor Terrible
47% 30% 1% 22%
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safety and training programs, and the Risk Management Committee. The City Attorney’s Office works with HR to administer the City’s general liability and property insurance programs.

Insurance Premiums
Insurance claims have been steady for the past three years, while workers’ compensation claims have decreased. There have been 31 workers’ compensation claims in the past three years. Of those claims, 21 were in 2021, and the number of claims dropped sharply in 2022 and 2023. There have been 39 insurance claims in the past three years, at relatively flat rates. This contributes to the flat risk trajectory in this area.

As mentioned in the Human Resources section, insurance premiums are rising industry-wide for general liability, excess workers’ compensation, and employment practices liability, making it difficult to maintain affordable rates. In addition, employee medical fees were sharply increased last year, and the City covered the cost.

Emergency Management and Business Continuity
The Office of Emergency Management (OEM) is staffed with two full-time positions, including an Emergency Manager who is responsible for leading and directing the City in prevention, preparation, mitigation, response, and recovery activities and a Management Analyst who is primarily dedicated to emergency planning. The office is also staffed with two part-time positions.

OEM is responsible for maintaining, reviewing, and updating the City’s EOP, which was last published in June 2019. The EOP should be reviewed on a regular basis (every two to three years) to ensure it remains relevant and effective and should be updated more often if there are significant changes to the emergency management landscape (such as high turnover at the City Manager position, which the City has experienced in recent years). The City is currently finalizing an assessment and revision of the existing plan.

The City’s COOP, which is a core component of business continuity planning, was last updated in June 2021. The COOP outlines how the City will continue to provide services in the event of an emergency until full operations are restored. The Federal Emergency Management Agency (FEMA) recommends COOPs be updated at least annually, or whenever there is a significant change in the organization’s structure, mission, or operating environment to ensure the plan remains current and relevant to the organization’s needs and capabilities.

The City offers several emergency-related trainings for staff. OEM provided training to 25 City staff with roles in staffing disaster emergency shelters in 2023, recently initiated a new training program for City Emergency Operations staff and set completion dates for Disaster Service Worker training for all staff. Planned training updates are underway as well. OEM hopes to provide Citywide training covering roles and responsibilities during emergency protocols in 2024.

Most employees (83%) report that they have received training related to emergency preparedness within the last year, and most employees (89%) report that they feel extremely (8%), very (43%), or somewhat (38%) prepared to respond to or handle an emergency situation within their department or office. It is important that all employees receive training on emergency preparedness to create a culture of safety and preparedness and ensure everyone is equipped to handle emergencies when they arise. Many surveyed employees mentioned confusion surrounding a recent incident at City Hall 62 CC 07-02-2024
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involving a phoned-in security threat; this may indicate a need to require that employees attend training related to roles and responsibilities and communication during emergencies.

Q: Have you received training focused on emergency preparedness provided by the City within the last year?
Q: How prepared do you feel to respond to or handle an emergency situation within your department or office?
The City developed an Alert, Warning, and Notification (AWN) Program to provide critical alert and warning to the public while also allowing for effective information sharing across City departments and partner agencies. The AWN Program provides the framework for alert, warning, and notifications before, during, and after any emergency or situation. The framework documents the recommended criteria for issuing public alerts and warnings, types of alerts and warnings, governance, training, and technical requirements for activating alerts. This document provides best practices for crafting effective alert and warning messages, choosing appropriate alerting technology, and providing public education to ensure the people understand how to obtain, use, and respond to information from the City. This is a strong control to promote effective communication during a crisis or emergency and reduce associated reputational risks.

Employee Safety
About one-third of surveyed employees (29%) reported they have experienced an incident where they felt physically unsafe while working at the City in the last two years, a 20% increase from the 2020 ERA. Over half of surveyed employees (60%) rated the physical security of their workplace as average (39%), poor (13%), or terrible (8%). This is driven by ongoing concerns over the physical structure of City Hall and a one-time acute threat. The safety of employees, and their perception of safety, can have significant impacts on City operations. It is important for the City to consider strategies to increase each employee’s feeling of physical safety at work, such as proactive plans to protect public-facing employees in the event of a security threat. 32% 29% 22% 17%
Yes, online Yes, in-person Yes, both No
8% 43% 38% 8% 3%
Extremely prepared Very prepared Somewhat prepared
Slightly prepared Not prepared at all
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Q: In the last two years, have you experienced an incident or time where you’ve felt physically at risk or unsafe while working at the City?
Q: How would you rate the overall level of physical security within the facility and/or location in which you work?
OVERALL RISK LEVEL: LOW TO MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE LOW TO MODERATE MODERATE FLAT
Risk Mitigation
● Ensure that updated accounting procedures are accompanied by clear communications to staff about the changes.
● Ensure that decentralized accounting and finance processes are accompanied by clear procedures and adequate training.
● Prioritize continuing to address the recommendations for improvement in budget development and monitoring training, document storage efficiency, and budget review communications contained in the 2022 Budget Process Review. ● Continue to prioritize improvements to the City’s financial systems to increase process efficiency where possible.

RESIDUAL RISK: LOW TO MODERATE
29% 66% 5%
Yes No Decline to Answer
8% 32% 39% 13% 8%
Excellent Good Average Poor Terrible
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Risk Areas: Risks associated with fiscal control, budgeting, ongoing information tracking and management, revenue capture, and transaction processing.

Scope: The role of accounting and financial functions in risk mitigation is focused on recordkeeping and compliance through recording, classifying, summarizing, and reporting financial transactions. Financial reporting includes deliverables such as the Annual Comprehensive Financial Report (ACFR), monthly financials for budgetary comparison, and other compliance reports such as an organization’s Single Audit.

Reliable financial information is fundamental to planning, budgeting, pricing, evaluating vendor performance, assessing partnerships, and a range of other operational and strategic activities.

The City’s Finance Division operates under the Administrative Services department. The Finance Division has a total staffing of 11.4 FTEs and is responsible for overseeing all financial accounting and treasury functions for the City. Administrative Services also houses a Budget Manager and Purchasing Manager outside of Finance who are involved in the accounting and finance function.

Because the structure and functions of the Finance Division can vary significantly among jurisdictions, there is not a one-size fits all suggested staffing ratio. However, almost all survey respondents in the Finance Division rated staffing levels in the department as either good or excellent. Additionally, over two-thirds of surveyed employees (71%) rated the quality of internal customer service provided by the Finance team as excellent or good, suggesting there are not significant gaps in services.

Q: How would you rate the quality of the internal customer service provided by the Finance team? Total equals 102% due to rounding.

The City updated its financial policies and procedures in 2023. Policies and procedures are in place pertaining to accounting and financial reporting, capital assets, budgeting, cash receipts and handling, City Council grants, payroll, accounts payable, and revenue and accounts receivable. Upto-date policies and procedures reduce risks of noncompliance, increase accountability, and promote consistency and efficiency. However, some staff shared that Finance employees sometimes give inconsistent direction to outside departments regarding policies and procedures. Recent updates to most accounting procedures are likely the driver of this feedback. Procedure changes often make it difficult for staff to understand which information is most up to date.

Staff report several accounting and financial processes are decentralized at the City. As noted in Internal Controls, there are concerns about financial transactions such as deposits and refunds being handled in a decentralized manner and non-Finance staff, who may lack financial expertise to process transactions without effective oversight or clear procedures. While decentralization can have some benefits, it increases risks of inconsistent financial practices, noncompliance with laws and regulations, fraud, errors, and monitoring difficulty. Clear procedures and a strong training environment can help mitigate these risks.

The City typically aims to complete its Annual Comprehensive Financial Report (ACFR) within six months after the close of each FY (i.e., by December). However, the City’s ACFR has been delivered 33% 38% 23% 8%
Excellent Good Average Poor Terrible
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between March and May in the last three years. The City switched auditors this year and is hoping to deliver more timely ACFR’s moving forward.

Budgeting
The City’s annual budget is prepared on a July 1 to June 30 FY, with ongoing processes throughout the year, including budget development, proposals, adoption, monitoring, amendments, and resident participation.

Overall, the City’s budget process is well-established and runs smoothly. The City maintains budget policies aligned with best practices in the adopted budget book, including a Balanced Budget Policy, Pension and Retirement Funding Policy, and Investment Policy. The City received the Operating Budget Excellence Award from the California Society of Municipal Finance Officers and the Distinguished Budget Presentation Award from the Government Finance Officers Association (GFOA) for its FY23 budget. A review of the budget process conducted in 2022 as part of the City’s internal audit program found that the City was in alignment with most budget best practices developed by the GFOA, but that there were opportunities for improvement in budget development and monitoring training, document storage efficiency, and budget review communications. The City is currently working with a consultant to validate its budget forecasting processes. Such validation can help promote the accuracy of budget projections and support the City’s decision-making moving forward.

Financial Systems
There are some shortcomings to New World, the City’s current ERP system. The system does not easily integrate with the City’s other systems, including CobbleStone, ACTIVENet, and Accela. This has contributed to process inefficiencies and a high level of manual intervention to effectively manage data and reporting across systems. The City had initially planned to replace its ERP; however, this initiative was paused while the City focused on balancing its budget. Instead, the Innovation & Technology (IT) Department is now working to improve the functionality of New World. This will not be a permanent solution. The City will need to eventually replace its ERP, but this should help ease the burden of data management and reporting across unintegrated systems.

OVERALL RISK LEVEL: LOW TO MODERATE
Impact Likelihood Preparedness Trajectory
MODERATE LOW TO MODERATE MODERATE TO HIGH DECREASING – LOW Risk Mitigation
● Continue ongoing activities that support a robust fraud, waste, and abuse program, including regular training and consistent reporting. ● Update the City’s Harassment, Discrimination, Retaliation, and Workplace Violence Policy.
● Clearly communicate and enforce non-retaliation policies. 66 CC 07-02-2024
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RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with misappropriation of funds, extravagant spending, using one’s position to accomplish a specific outcome, the intent to deceive, or behavior that is not aligned with the organization’s ethical values and policies.

Scope: The employees of the organization have a duty to use funds economically, efficiently, effectively, and ethically. When employees do not honor this obligation, it could result in instances of fraud, waste, abuse, or unethical behavior.

All City employees share the common purpose of serving the public in an ethical and transparent manner. Fraud, waste, and abuse are defined as:
• Fraud: A dishonest and deliberate course of action that results in obtaining money, property, or an advantage to which employees or an official committing the action would not normally be entitled
• Waste: The needless, careless, or extravagant expenditure of funds; incurring of unnecessary expenses; or mismanagement of resources or property
• Abuse: The intentional, wrongful, or improper use or destruction of resources, or highly improper practices that do not involve prosecutable fraud
The City’s 2020 ERA noted the absence of a robust fraud, waste, and abuse program was an area of risk for the City. Even without a robust program in place, the 2020 ERA rated the likelihood of an incident occurring as low to moderate. Meaning that it is unlikely that an incident of fraud, waste, or abuse will occur. Since 2020, the City has implemented measures to further mitigate risk by establishing a Fraud, Waste, and Abuse Program in October 2022. This program includes a Fraud, Waste, and Abuse Policy; confidential reporting mechanisms; a whistleblower policy; and mandatory training for all staff.

According to the Fraud, Waste, and Abuse Policy, reporting methods include a toll-free number, mail, phone, or in-person reporting, and several methods are available 24 hours a day, seven days a week, 365 days a year. This hotline is coordinated by the City’s internal auditor and administered by thirdparty vendor Lighthouse through an off-site reporting system. By offering a confidential reporting mechanism, the program encourages open communication and allows staff and the public to share sensitive information without fear of retaliation or judgment. This program signifies the City’s ongoing commitment to strengthening its ethics infrastructure and environment, as well as providing staff with the appropriate resources. When asked if they know what action(s) to take if they were to become aware of unethical or fraudulent activity, 77% of survey respondents said yes compared to 65% of respondents in 2020.
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Q: Do you know what action(s) to take if you were to become aware of unethical or fraudulent behavior?
2020
2024
Total equals 99% due to rounding.

While the program is a notable contribution to the City’s ethics environment, it is important to note that the City’s Harassment, Discrimination, Retaliation, and Workplace Violence Policy, which is a section of the City’s overarching Administrative Rules and Regulations of the Personnel Code, has not been updated since July 2013. Regularly updating and reviewing ethics policies and procedures are imperative to guarantee that the City’s infrastructure adequately promotes ethical integrity.

Having confidence in the City’s ethics and reporting framework is essential for staff in building trust, promoting compliance, enabling risk management, and detecting and preventing misconduct. The majority of respondents (76%) responded management definitely or probably would make an effort to stop wrongdoing if reported.

Q: What are the chances that management above you would make efforts to stop wrongdoing if you reported it?
Total equals 99% due to rounding.

While there is a strong sense of confidence in how a reported incident would be handled, there is hesitancy related to potential retaliation. Only 29% of respondents to the survey indicated they would definitely be protected from retaliation if they reported wrongdoing, which is similar to the 2020 survey results. Both actual and perceived retaliation erode trust, discourage reporting, and can make it more challenging to realize the full benefit of the robust program in place. 65% 29% 6%
Yes - I know what I would do Maybe - I would have to research a bit No, not really sure 77% 17% 5%
Yes - I know what I would do Maybe - I would have to research a bit No, not really sure 49% 27% 18% 1%4%
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Q: What are the chances that you would be protected from retaliation if you reported wrongdoing? 2020
2024
OVERALL RISK LEVEL: LOW TO MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE TO HIGH LOW TO MODERATE MODERATE TO HIGH FLAT
Risk Mitigation
● Continue to prioritize cybersecurity resiliency efforts, including employee training and collaboration with other local government agencies. ● Ensure IT policies and procedures are updated at least every three years. ● As the City explores expenditure mitigation strategies, consider developing a feedback mechanism to track employee satisfaction with technology and prioritize opportunities for improvement.
● When possible, prioritize the adoption of a new ERP.
● Consider adopting key systems that would increase efficiency and effectiveness like an HR information system, learning management system, grants management, and performance management system. Prioritize system interoperability between these systems and the City’s ERP.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with the design, development, implementation, administration, operations, and maintenance of information systems, including change management and system development life cycle. Also includes risks to infrastructure, system performance, data architecture and management, integration, backup, security, and controls.

Scope: The importance and pervasiveness of information technology and information systems continues to rapidly expand, regardless of organization.
29% 41% 20% 6% 3%
Definitely would be protected Probably would be protected Might or might not be protected Probably not protected Definitely not protected
29% 43% 22% 4%2%
Definitely would be protected Probably would be protected Might or might not be protected Probably not protected Definitely not protected
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The City’s IT Department consists of 14 full-time positions, four part-time positions, and one intern position. There are three divisions within the department: Applications, GIS, and Infrastructure. The Applications Division supports the City’s enterprise applications like its ERP, Land Management System, Recreation System, Laserfiche, as well as the many e-services custom applications like bid management, permit parking, business licenses, and the City’s mobile apps. The GIS Division builds web applications for staff and the public to use as a tool in their daily workflows. The Infrastructure Division is responsible for the acquisition, maintenance, and support of all computer hardware necessary for the City's network (server, storage, switch, security, and appliance) and end user services (PC, tablet, VoIP devices, and smartphones).

The City has a history of being technologically forward and progressive, and its focus on technology translates to an overall low to moderate risk rating in this category. The IT Department is considered the root of that reputation and is critical to the continued optimization and efficiency of service delivery Citywide. The risk in this area is largely driven by the inherent cybersecurity risks to any public-facing organization, the acknowledged need to replace the City’s ERP, some outdated policies and procedures, and opportunities to systematize HR, including training and performance management, as well as grants to further support operational efficiency and effectiveness.

IT Internal Service
Staff are generally pleased with IT internal service. Employees across the City consistently rated the IT Department highly and highlighted that the department is a model for other cities. Staff reported that trust and communication is high between IT and other departments. This is likely driven in part by frequent cross-departmental collaboration. For example, the Applications Division meets with departments monthly to discuss needs, and recently worked with the CIP team to build an application that tracks day-to-day operations.

Q: How would you rate the quality of the internal customer service provided to staff by the IT team? Total equals 99% due to rounding.

The internal management of the department appears strong. The Chief Technology Officer plans to retire at the end of this FY and has accordingly prioritized succession planning efforts.

IT adheres to a department-specific standard replacement schedule as defined by the Information Technology Replacement and Capitalization Policy. Though there is not a dedicated IT replacement fund, IT budgets for replacements according to the life cycles of hardware. Generally, laptops are replaced every four years and cell phones every three years.

The likelihood of risk occurring with regard to internal service and hardware is driven by current and future impacts to the budget. Among the strategies to reduce expenditures identified in the FY24 budget are reductions to technology purchases and pursuing fewer pilots of technology in the future.

The IT team has already cut some of the applications that were previously procured from a third 63% 31% 3%
1%
1%
Excellent Good Average Poor Terrible
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party. While surveyed employees were generally satisfied with the quality of the information technology hardware provided by the City, there were some concerns that extending equipment life cycles due to budget cuts would cause equipment to become outdated.

Q: How would you rate the quality of the information technology hardware (computers, accessories, etc.) that you currently have and use in your role?
IT Security
The likelihood of risk in this area is driven by the inherent risk related to cybersecurity in any modern organization. In addition, the City does not have control over the rising cost of cybersecurity insurance. As that cost continues to increase, there is an associated risk that more of the City’s resources will need to be allocated to this area.

Cybersecurity was identified as a high-risk area in the 2020 risk assessment. Since then, the IT Department has made investments to mitigate that risk, including the following:
• The City providing end user education through semi-annual training. The focus on training is reflected by 100% of survey respondents reporting that they received high-quality cybersecurity training within the past year. Because of the growing complexity of cyberattacks, it will remain imperative that the City continue to prioritize its cybersecurity resiliency efforts. • The City continues to focus on strengthening the IT Disaster Recovery Plan and other contingency efforts, including the Business Continuity Flow Chart and EOP (a unified cyber command incident response process that clarifies processes and roles and responsibilities for cyber incidents).
• The City works with a contractor to monitor the cyber environment 24/7 and isolate anomalies that occur at night to prevent viruses or encryption from spreading throughout the environment.

The City maintains the following IT Security policies and procedures:
• A detailed EOP Annex with processes to respond to cyber incidents (last updated in 2021) • An Innovation Technology Disaster Recovery Plan and Business Continuity Flow Chart for IT response to natural disasters, hardware failures, and cybersecurity events (undated) • A Technology Use Policy setting acceptable use of City technology resources that covers data and information security and cybersecurity (last updated in 2018) • A Photo Identification Policy governing acceptable photo use (last updated in 2018) • A Redaction Policy concerning private information in public records (last updated in 2018) While these policies and procedures are important controls for the City to reduce IT-related risks, they fall outside of the recommended review cycle of three years. All policies and procedures should 37% 43% 15% 3%
1%
Excellent Good Average Poor Terrible
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include the date they were created as well as revision or review dates to ensure policies are kept up to date and provide clarity to staff.

The City takes a hybrid approach to data storage, with some data stored on premises and some stored in the Cloud. In alignment with best practice, the on-premises environment and applications are backed up in an off-site location. Though on-site storage typically presents greater risks, the onpremises environment is being updated within the coming months after a recent audit noted that the server room is shared with the Finance Division and is accessible by non-IT personnel.

City Systems
The City uses Zendesk as its CRM and New World as its ERP. Although these are commonly used systems, City staff report integration challenges between New World and other major systems as described in Accounting and Finance.While staff generally reported that New World’s inefficiencies were frustrating, they shared that the workarounds that have been developed are ultimately operational. One of the needs employees identified related to IT was a desire for IT to continue to strengthen system integration and data flow automation to reduce manual processes.

The City lacks some key systems that would contribute to increased efficiency and effectiveness.

Examples include a comprehensive HR information system, learning management system, grants management, and a performance management system to automate performance evaluations.

Otherwise, employees rated the quality of the hardware and software systems currently in use at the City highly.

Q: How would you rate the quality of the information technology systems (software, applications, programs, etc.) that you currently have and use in your role? IT Governance
IT governance plays an important role in local governments to optimize technology purchases, systems integration, and access to information to support decision-making. The City has established an Innovation & Technology IT Governance Framework, which is responsible for the strategic planning, governance, and policy-setting related to the use of digital services for the City. In accordance with industry standards, asset decision-making is centralized—the IT Department approves all software and hardware purchases.
33% 51% 11% 4%
1%
Excellent Good Average Poor Terrible
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OVERALL RISK LEVEL: LOW TO MODERATE
Impact Likelihood Preparedness Trajectory

MODERATE LOW TO MODERATE MODERATE FLAT
Risk Mitigation
● Explore opportunities to establish a formal agreement with the Santa Clara County Fire Department for fire services.
● Work with the Santa Clara County Sherriff’s Department to understand why some types of crime have been increasing and jointly develop mitigation strategies.
● Consider allocating resources to the Unhoused Task Force to support proactive public communication around the City’s efforts to address homelessness in the community.

RESIDUAL RISK: LOW TO MODERATE
Risk Areas: Risks associated with public safety services, including level of services, funding, and community issues.

Scope: Public safety includes emergency services such as law enforcement, fire, dispatch, and community disaster response programs.

The City’s public safety and security environment is relatively strong, but there are risks associated with the City’s lack of direct control over its contracted and outsourced police and fire services. In addition, the City does not currently dedicate any money to homelessness related issues or services.

Public Safety
The OEM leads and directs the City in prevention, preparation, mitigation, response, and recovery from all emergencies, hazards, incidents, and events. OEM also maintains the City’s contract for law enforcement services with the Santa Clara County Sheriff’s Office.

The City contracts its law enforcement with the Santa Clara County Sherriff’s Department, and its fire services are provided by the Santa Clara County Fire Department. Outsourcing law enforcement and fire services can result in cost savings for the City and reduce administrative burdens on the City, such as those related to hiring, training, and managing law enforcement and fire service personnel.

However, there are also some risks to this approach:
• The City has less control over law enforcement and fire services and less input into how services are provided and how resources are allocated.
• Santa Clara County may have other priorities, which can impact responsiveness or limit the customizability of services to local needs.

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year. This represents risk for the City because if the City notices deficiencies in fire services, there is not a defined process to address those concerns. However, the likelihood of this occurring is relatively low, and services appear to be sufficient. This is evidenced by positive responses to the employee survey (respondents did not report any significant concerns regarding the effectiveness of the public safety services delivered to the City and the sense of safety was reported as good or excellent by 82% of respondents) and by Sheriff and Fire response data:
• The average County Sheriff response time in 2022 (the most recent year available) in the City was 5.33 minutes for Priority 1 calls, 6.94 minutes for Priority 2 calls, and 11.73 minutes for Priority 3 calls—all well under the established target response times for the department.6 • The average Fire response time for emergency events in the City in December 2023 was 4:47 minutes in urban areas and 5:49 minutes in rural areas. Incidents responded to by Fire in the City decreased slightly during the COVID-19 pandemic and have been climbing back to pre-pandemic levels, which leveled off in 2023. Most responses are EMS (63%) or service (17%).

Q: How would you rate the effectiveness of the public safety services delivered to the City? Q: How would you rate the overall feeling of safety in the community? Total equals 99% due to rounding.

The risk level in this area is also informed by crime rates. Crime rates in the City have fluctuated between 2021 and 2023, most recently decreasing between 2022 and 2023. However, some types of crime have been increasing between 2021 and 2023, including simple and aggravated assaults (50%), identity theft and forgery fraud (22%), commercial burglary (33%), and robbery (22%). The 2022 relative crime rate (the most recent comparison available) within the Santa Clara County Sheriff’s Office jurisdiction is among the highest between California agencies that shared data. Crime rates are another area that the City has limited control over due to its contractual service relationship with the Sheriff’s Office.

Public safety and security is also influenced by the public’s perception of homelessness in the community. Homelessness is not as prominent an issue in the City as it is in surrounding areas, and 6 Santa Clara County Sheriff’s Office. 2022 Annual Statistics. Accessed April 25, 2024:
https://countysheriff.sccgov.org/sites/g/files/exjcpb406/files/reports/2022%20SCCSO%20Report%20ToC.pdf. 27% 53% 18%
1%
1%
Excellent Good Average Poor Terrible
29% 53% 14% 3%
Excellent Good Average Poor Terrible
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the number of people experiencing homelessness in the City appears to be decreasing (the City’s 2022 Point-In-Time count observed 102 people experiencing homelessness, a 36% decrease from the 2019 count).7 However, staff report a sense of increased public concern about the unhoused population in the City and the management of encampments, evidenced by a reported 20 to 30 encampment-related complaints that are received per week. To address concerns in this area, the City created the Unhoused Task Force, comprising multiple City departments. The task force’s primary purpose is to track encampments and ensure that services are provided to people who are unhoused in the City, as well as to communicate with the public and coordinate encampment resolutions with Sheriff, Fire, Public Works, and the City Attorney’s Office. The cost of addressing homelessness is absorbed into standard operating costs across departments, including Public Works.

Code Enforcement
The City employs three FTE Code Enforcement Officers who enforce non-emergency and preventative life-safety issues around zoning, building, housing, and fire code compliance. Code enforcement functions serve a critical role and are responsible for supporting the health, safety, and economic well-being of the community. Code enforcement is budgeted for 4 FTE, and staff shared that vacancies are currently unfilled due to budget conditions, which has impacts on service delivery in this area.

Community Emergency Preparedness
The City has developed community emergency preparedness programs. Such programs are helpful to reduce risks related to disasters and emergencies by helping promote community preparedness.

The City runs a Community Emergency Response Team Program, which is sponsored by FEMA. The City provides ongoing community preparedness training through the Personal and Neighborhood Emergency Preparedness Program, which is operated through the Neighborhood Block Leader Public Safety Program.
7 County of Santa Clara. 2022 Point-In-Time Report on Homelessness. Accessed April 25, 2024:
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APPENDIX A: EMPLOYEE SURVEY RESULTS
We distributed a confidential online questionnaire to City employees on January 2, 2024, and collected data through February 8, 2024. Out of the 198 full-time employees invited to take the survey, 92 individuals submitted responses, a participation rate of 46%. Some totals may not equal 100 due to rounding.

Years of Tenure
Employee Level8
How would you rate the organization’s level of overall risk? Accounting and Finance
8 Only management-level employees were asked to rate overall level of risk for each category. 14%
8%
26%
15%
28%
18%
22%
30%
4%
10%
5%
18%
Tenure in Position
Tenure with Organization
Less than 1 1 to 2 3 to 5 6 to 10 11 to 15 More than 15 Management 46% 54%
Yes No
16% 27% 38% 16% 3%
Low Low to Moderate Moderate Moderate to High High
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Asset Management
Capital Improvement Program and Infrastructure
Compliance and Financial Reporting
Ethics and Fraud, Waste, Abuse
Funding and Economics
33% 39% 25% 3%
Low Low to Moderate Moderate Moderate to High High
23% 37% 20% 14% 6%
Low Low to Moderate Moderate Moderate to High High
7% 17% 50% 7% 2% 17%
Low Low to Moderate Moderate Moderate to High High N/A
24% 36% 31% 7% 2%
Low Low to Moderate Moderate Moderate to High High
10% 30% 50% 10%
Low Low to Moderate Moderate Moderate to High High
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Governance
Human Resources
Information Technology
Management and Leadership
Operations and Service Delivery
11% 26% 42% 18% 3%
Low Low to Moderate Moderate Moderate to High High
30% 33% 30% 8%
Low Low to Moderate Moderate Moderate to High High
48% 33% 15% 5%
Low Low to Moderate Moderate Moderate to High High
15% 33% 30% 13% 10%
Low Low to Moderate Moderate Moderate to High High
26% 31% 40% 2%
Low Low to Moderate Moderate Moderate to High High
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Organization and Staffing
Planning and Strategy
Policies and Processes
Procurement and Contracting
Public Safety and Security
17% 14% 36% 21% 12%
Low Low to Moderate Moderate Moderate to High High
13% 30% 38% 15% 5%
Low Low to Moderate Moderate Moderate to High High
23% 30% 35% 13%
Low Low to Moderate Moderate Moderate to High High
16% 39% 32% 10% 3%
Low Low to Moderate Moderate Moderate to High High
30% 45% 15% 8% 3%
Low Low to Moderate Moderate Moderate to High High
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Reputation and Public Perception
Risk Programs
30% 30% 35% 5%
Low Low to Moderate Moderate Moderate to High High
8% 36% 33% 21% 3%
Low Low to Moderate Moderate Moderate to High High
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City of Cupertino
FY 24-25 Internal Audit ProgramAudit Committee MeetingJune 2024 82 CC 07-02-2024
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• The City retained Moss Adams to serve as the
designated Internal Auditor and conduct projects focusing on:
• Risks • Internal controls• Efficiency and effectiveness• Best practices• Compliance • Work is being completed under appropriate industry
standards (IIA, GAGAS, AICPA)
Internal Audit Overview
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Role of Internal
Audit
3 Source: IIA
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Holistic Internal Audit Program Components
Tracking & Reporting
A Program Inputs
B Opportunities
C
• Enterprise
Assessments
• Employees and
Residents
• Performance
Metrics
• Risks• Controls• Compliance• Performance
• Findings &
Recommendations
• Fraud, Waste, and
Abuse Hotline
• Corrective Actions• Implementation • Validation
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5 Internal Audit Program Components
5 Internal Audit Plan
Risks Internal Controls Compliance Performance
Accounting and financial reporting, asset management, capital programs, compliance, economics and funding, fraud, governance, human resources, internal controls, maintenance and operations, management, operations and service delivery, organization and staffing, processes and procedures, procurement, public safety, risk management, and technology
Functions Components Plan
City Internal Audit Annual
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6 Program Review
Focus Accomplishments
• Enterprise Risk Assessments 2021• Internal Controls Projects Completed 2• Performance/Efficiency Projects Completed 5• Policies Reviewed 133• Recommendations Delivered 52• Ethics Hotline Reports Received 21 reports• Recommendations Validated To Come 6 87
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7 Departments Covered
Department Projects
Procurement (22)Finance P&Ps (22)Budget Process Review (23) Administrative ServicesCity ClerkCity Manager’s Office FWA Program (22)Community DevelopmentCommunicationsInnovation & TechnologyParks & Recreation Capital Program (22)Library Construction Audit (23)
Public Works
 Enterprise Projects: Risk Assessment (21, 24), Enterprise Leadership (23), Policies and Procedures (24)
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1. Grants Management Internal Controls Review Assess the internal controls in place over the City’s grants management activities (including applications, review, administration, and reporting). (16 weeks, $25,000)

2. Special Revenue Fund Process Review Document the
process used for special revenue fund accounting, identify gaps compared to best practices, and conduct testing of prior years’ accounting. (16 weeks, $18,000)

3. Recommendation Validation Process Establishment
Inventory prior internal and external audit recommendations, collaborate with City staff to develop a tracking mechanism and process to report and validate recommendation implementation. (20 weeks, $10,000)

4. Ongoing Internal Audit Services Attend Audit Committee and Council meetings, prepare status reports, manage internal audit program, and monitor FWA hotline. ($7,000) Recommended Internal Audit Projects
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The material appearing in this presentation is for informational purposes only and is not legal or accounting advice. Communication of this information is not intended to create, and receipt does not constitute, a legal relationship, including, but not limited to, an accountant-client relationship. Although these materials may have been prepared by professionals, they should not be used as a substitute for professional services. If legal, accounting, or other professional advice is required, the services of a professional should be sought. 9 9
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• Government Finance Officer’s Association (GFOA)
• GFOA Best Practices Guide on Audit Committees
• Institute of Internal Auditors
• IIA Publication “The Audit Committee: Internal Audit
Oversight”
• U.S. Government Accountability Office (GAO)• American Institute of Certified Public Accountants• Association of Certified Fraud Examiners 10 Resources
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CITY OF CUPERTINO
Agenda Item
24-12934 Agenda Date: 7/2/2024
Agenda #: 1.

Subject: Recognition of July as Parks and Recreation Month Recognize July as Parks and Recreation Month
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CITY OF CUPERTINO
Agenda Item
23-12655 Agenda Date: 7/2/2024
Agenda #: 2.

Subject: Approve the June 18, 2024 City Council minutes Approve the June 18, 2024 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, June 18, 2024
At 6:45 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
City Attorney Jensen conducted the closed session report regarding two matters:

Special Meeting Closed Session held at 5:30 p.m. on May 14, 2024:

Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (Pacific Autism Center for Education v. City of Cupertino, Santa Clara Superior Court Case No. 23CV423995)
City Attorney Jensen reported that the City executed a settlement agreement in which the City will receive a payment of $50,000 in exchange for the reconveyance of a deed of trust (Agenda Item 10). The settlement was authorized by a 5-0 vote of Council.

Special Meeting Closed Session held at 6:00 p.m. on June 4, 2024:

Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (Harshit Sharma et al. v. City of Cupertino, Santa Clara County Superior Court Case No. 22CV39297)
City Attorney Jensen reported that the City entered into a settlement agreement with both plaintiffs for a total amount of $375,000, $325,000 of which will be paid by the City.

The settlement was authorized by a 4-0 vote of Council (Wei absent). 94 CC 07-02-2024
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CEREMONIAL ITEMS
As part of Ceremonial Items, Mayor Mohan recognized the Juneteenth Holiday, observed annually on June 19, and acknowledged the passing of Major League Baseball player Willie Mays.

POSTPONEMENTS AND ORDERS OF THE DAY - None

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

The following members of the public spoke:

Jennifer Griffin discussed pro-housing organizations and housing laws.

R. Jerry Lami representing, West Coast Farmers Market Association, discussed the Cupertino Farmers’ Market.

Peggy Griffin discussed the Farmers’ Market and City Commission meeting schedules.

Lisa Warren discussed the Farmers’ Market and City Commission meeting schedules.

Parks and Recreation Commissioner Claudio Bono (representing self) discussed City Commission meeting schedules and the Farmers’ Market.

Jean Bedord discussed the Farmers’ Market.

Rhoda Fry discussed the West Coast Farmers Market Association and Farmers’ Market.

Louise Saadati discussed Housing Element implementation and rezoning.

Caller 1820 discussed the Farmers’ Market and a code enforcement matter.

Yvonne Thorstenson discussed Housing Element implementation and rezoning.

Kamyab Mashian discussed Housing Element implementation and rezoning.

Sean Hughes discussed Housing Element implementation and rezoning.

Sandhana Siva discussed Housing Element implementation and rezoning. 95 CC 07-02-2024
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Parks and Recreation Commissioner Jennifer Shearin (representing self) discussed Housing Element implementation and rezoning.

San R discussed the Housing Element and remote commission meetings under the Brown Act.

Fruen and Moore requested the City Manager to bring back an informational memo or another action to find space for the Cupertino Farmers’ Market for an interim period before June 30.

CONSENT CALENDAR (Items 1-12)
Item 11 was removed from the Consent Calendar by Councilmember Chao and Item 12 was removed by Vice Mayor Fruen.

MOTION: Mohan moved and Wei seconded to reorder the agenda to move Items 11 and 12 before Public Hearings and hear Item 12 before Item 11. The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

Mayor Mohan opened the public comment period and the following members of the public spoke.

Jennifer Griffin (Items 2 and 4)
Mayor Mohan closed the public comment period.

MOTION: Fruen moved and Wei seconded to approve the items on the Consent Calendar except as indicated. The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

Items 11 and 12 were placed after the Consent Calendar for consideration.

1. Subject: Approval of the June 4, 2024 City Council minutes Recommended Action: Approve the June 4, 2024 City Council minutes

2. Subject: A resolution calling for a consolidated General Municipal Election on November 5, 2024 to fill two City Council seats and requesting election services from the Santa Clara County Registrar of Voters
Recommended Action: Adopt Resolution No. 24-057 calling for a consolidated General Municipal Election on November 5, 2024 to fill two City Council seats and requesting performance of services from the Registrar of Voters of the County of Santa Clara

3. Subject: Ratifying Accounts Payable for the periods ending May 3, 2024; May 10, 2024; 96 CC 07-02-2024
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May 17, 2024; May 24, 2024; and May 31, 2024
Recommended Action: A. Adopt Resolution No. 24-058 ratifying Accounts Payable for the Period ending May 3, 2024;
B. Adopt Resolution No. 24-059 ratifying Accounts Payable for the Period ending May 10, 2024;
C. Adopt Resolution No. 24-060 ratifying Accounts Payable for the Period ending May 17, 2024;
D. Adopt Resolution No. 24-061 ratifying Accounts Payable for the Period ending May 24, 2024; and
E. Adopt Resolution No. 24-062 ratifying Accounts Payable for the Period ending May 31, 2024

4. Subject: Adopt a Resolution to request the Metropolitan Transportation Commission (MTC) allocate Fiscal Year (FY) 2024/2025 Transportation Development Act Article 3 (TDA 3) Pedestrian/Bicycle Project Funding in the amount of $330,000 for the development of a Citywide Active Transportation Plan.

Recommended Action: Adopt Resolution No. 24-063 (Attachment A), to request the Metropolitan Transportation Commission allocation of FY 2024-2025 Transportation Development Act Article 3 Pedestrian/Bicycle Project funding for the development of an Active Transportation Plan.

Written communications for this item included an email to Council.

5. Subject: Award a construction contract for 2024 Pavement Maintenance Phase 1 Project to G. Bortolotto & Co. for asphalt mill & fill and patching on identified roadways throughout the City of Cupertino in the amount of $2,662,786.

Recommended Action: 1. Award a construction contract for the 2024 Pavement Maintenance Phase 1 project (project number 2024-101) in the amount of $2,662,786 to G. Bortolotto & Co.

2. Authorize the City Manager to execute the construction contract when all conditions have been met; and

3. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $266,279 (10%) for a total contract amount of $2,929,065.

Written communications for this item included an email to Council.

6. Subject: Approve a first amendment with All City Management Services, Inc. (ACMS) to provide crossing guard services for a total not-to-exceed amount of $1,688,800 extending the agreement date to June 30, 2026, and approve a budget modification in the amount of $78,707.

Recommended Action: 1. Authorize the City Manager to execute a First Amendment 97 CC 07-02-2024
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with All City Management Services, Inc. (ACMS) to continue to provide Crossing Guard Services, increasing the contract amount by $785,000 for a total not to exceed amount of $1,688,800 and extending the agreement date to June 30, 2026.

2. Adopt Resolution No. 24-064 approving budget modification #2324-304 and a budget adjustment in the amount of $78,707 in the General Fund for Fiscal Year 2024-2025 crossing guard services (100-88-846 700-709).

Written communications for this item included a desk item report Attachment C – Draft Amendment 1 Revised and an email to Council.

7. Subject: Approve a First Amendment with Dan Gertmenian to provide educational classes and educational events for a total not-to-exceed amount of $879,348 and extending the contract date to August 31, 2025.

Recommended Action: Authorize the City Manager to execute a First Amendment with Dan Gertmenian, increasing the amount by $106,305 for a total contract amount not to exceed $879,348 and extending the term of the agreement to August 31, 2025.

Written communications for this item included an email to Council.

8. Subject: Award an agreement to Cascadia Consulting Group, Inc. for waste characterization services in an amount not to exceed $223,466.

Recommended Action: Authorize the City Manager to execute an agreement with Cascadia Consulting Group, Inc. for waste characterization services in an amount not to exceed $223,466.

9. Subject: Minor correction to amendment to MIG, Inc. Design Professional Agreement approved at the June 4 City Council meeting to increase not-to-exceed amount of contract by $45,000, to amount of $512,411.

Recommended Action: Approve the corrected not-to-exceed total agreement amount as outlined in the draft amendment to the MIG, Inc. Design Professional Agreement.

10. Subject: Termination of loan agreement between the City of Cupertino and the Pacific Autism Center for Education
Recommended Action: Authorize the City Manager to terminate a loan agreement between the City of Cupertino and the Pacific Autism Center for Education pursuant to a settlement agreement between the parties, in consideration for a payment of $50,000 into the City’s BMR fund

ITEMS REMOVED FROM THE CONSENT CALENDAR

12. Subject: Consider acquisition of property located at 19400 Stevens Creek Blvd, and appointment of real property negotiator for acquisition of property 98 CC 07-02-2024
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Recommended Action: Appoint City Manager Pamela Wu as real property negotiator for acquisition of property located at 19400 Stevens Creek Blvd Written communications for this item included a supplemental report staff presentation with staff responses to councilmember questions and emails to Council.

This item was pulled from the Consent Calendar for discussion.

City Manager Pamela Wu gave a presentation.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public comment period and the following members of the public spoke.

Jennifer Griffin
Peggy Griffin
Lisa Warren
Parks and Recreation Commissioner Claudio Bono (representing self) Jean Bedord
Rhoda Fry
San R
Mayor Mohan closed the public comment period.

MOTION: Fruen moved and Wei seconded to appoint City Manager Pamela Wu as real property negotiator for acquisition of the property located at 19400 Stevens Creek Blvd.

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

Moore. Abstain: None. Absent: None.

At 8:43 p.m., Mayor Mohan recessed the meeting. The meeting reconvened at 8:50 p.m. with all Councilmembers present.

11. Subject: Sale of city-owned property at 10301 Byrne Avenue Recommended Action: 1. Adopt Resolution No. 24-065 authorizing the sale of surplus real property located at 10301 Byrne Avenue, Cupertino, California. (Attachment A)

2. Approve a deed restriction substantially similar to Attachment B in compliance with the State Surplus Land Act for the property, to be completed prior to the close of escrow.

3. Authorize the City Manager to execute sales agreements (Attachment C) and related documents for the property at 10301 Byrne Avenue with Zhao Han. 99 CC 07-02-2024
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Written communications for this item included an email to Council.

This item was pulled from the Consent Calendar for discussion.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public comment period and the following members of the public spoke.

Peggy Griffin
Lisa Warren
Parks and Recreation Commissioner Claudio Bono (representing self) Mayor Mohan closed the public comment period.

MOTION: Wei moved and Mohan seconded to:

1. Adopt Resolution No. 24-065 authorizing the sale of surplus real property located at 10301 Byrne Avenue, Cupertino, California;

2. Approve a deed restriction substantially similar to Attachment B in compliance with the State Surplus Land Act for the property, to be completed prior to the close of escrow; and

3. Authorize the City Manager to execute sales agreements and related documents for the property at 10301 Byrne Avenue with Zhao Han.

The motion carried with the following vote: Ayes: Mohan, Fruen, and Wei. Noes: Chao and Moore. Abstain: None. Absent: None.

PUBLIC HEARINGS

13. Subject: Proposed Municipal Code Amendments to Chapter 19.48 (Fences), Chapter

19.12 (Administration), and Chapter 19.08 (Definitions) and related CEQA exemption. (Application No.: MCA-2024-001; Applicant: City of Cupertino; Location: Citywide) Recommended Action: Conduct the first reading of Ordinance No. 24-2260: AN

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO AMEND MUNICIPAL CODE CHAPTER 19.08, CHAPTER 19.12, AND CHAPTER 19.48 REGARDING FENCES, which includes a finding to find the actions exempt from CEQA
Presenter: Emi Sugiyama, Associate Planner
Written communications for this item included a staff presentation.

Associate Planner Emi Sugiyama gave a presentation.
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Councilmembers asked questions and made comments.

Mayor Mohan opened the public hearing and, seeing no one, closed the public hearing.

MOTION: Chao moved and Fruen seconded the recommended action to conduct the first reading of Ordinance No. 24-2260: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO AMEND MUNICIPAL CODE CHAPTER 19.08, CHAPTER

19.12, AND CHAPTER 19.48 REGARDING FENCES, which includes a finding to find the actions exempt from CEQA. The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

ACTION CALENDAR

14. Subject: Future agenda items requested by City Councilmembers (“TBD List”) Recommended Action: Review the TBD list and modify the list as recommended below Presenter: Pamela Wu, City Manager
City Manager Pamela Wu introduced the item.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public comment period and the following members of the public spoke.

Jennifer Griffin
Peggy Griffin
San R
Mayor Mohan closed the public comment period.

MOTION: Moore moved and Fruen seconded to modify the TBD list Items 1, 3, 6, and 8 as recommended. The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None. # Subject Recommendation
1 Review of City Treasurer
Resolution including
appointment, function, and
process for ratifying accounts
payable
Staff recommends adding this item as a
potential City Work Program item for FY

25. Recommendation Approved
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3 Housing Element Study Session No further action required. Housing Element adopted. Recommendation
approved.
6 Nexus study for traffic impact fee Staff recommends adding this item and potentially other impact fees nexus
studies as a potential City Work Program
item for FY 25. Recommendation
approved.
8 Revisit the Greenbiz Cupertino
standards.

No further action required. An
informational memorandum was
provided and posted online in April 2024.

Recommendation approved.

Council conducted straw poll votes for Items 2, 4, 5, 7, and 9. The final recommendation is underlined for each item.
2 Public Facilities Corporation’s
(PFC) tax-exempt status
No further action required. At the 3/5
Council meeting, Council voted to
agendize the annual meeting of the PFC.

This meeting has been agendized for
11/18/24. An informational memorandum
was provided to Council in December
2023 and in April 2024. Staff recommends
removing this item. Recommendation
modified to have all supporting
materials included with the agenda for
discussion at the meeting in November
(Ayes: Mohan, Fruen, Chao, Wei. Noes:

Moore.)
4 Review the budgeted
“headcount” for City employees
Staff recommends removing this item as
this was discussed during the proposed
budget study session at the 5/21 City
Council meeting. Recommendation
approved (Ayes: Mohan, Fruen, Wei.

Noes: Chao and Moore.)
5 Review of City Organization
Chart and City Treasurer and
City Attorney positions
Staff recommends removing this item as
this was addressed at the 5/21 and the 6/4
City Council meetings during the budget
item. Citizens of Cupertino will be added
back to the final budget organization
chart. Consolidated with Item #1
(unanimous consent).
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7 Review the City’s financial policy
and best practices
No further action required. Staff will
provide an informational memorandum
or Council report depending the
recommended changes on the investment
policy and best practices in the Fall. Staff
will review adding more restrictive
language on minimum cash balances.

Recommendation modified to stay on
the list until the informational memo
has been received (unanimous consent).
9 Study session on banning
artificial turf given the
environmental concerns.

Staff will provide an informational
memorandum to Council on artificial turf.

Recommendation modified to stay on
the list until the City Manager brings
back an informational memo in the Fall
(unanimous consent).

CITY MANAGER REPORT
City Manager Pamela Wu shared a video of the Pride Month Flag Raising Ceremony.

ORAL COMMUNICATIONS - CONTINUED - None

COUNCILMEMBER REPORTS

15. Subject: Councilmember Reports
Councilmembers reported on their various committees and activities as provided in the published agenda.

ADJOURNMENT
At 10:40 p.m., Mayor Mohan adjourned the Regular City Council Meeting per rule. There was no Council discussion on the remaining agenda item.

FUTURE AGENDA ITEMS
Council did not hear this item.

Minutes prepared by:
________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
24-13250 Agenda Date: 7/2/2024
Agenda #: 3.

Subject: Approve the June 19, 2024 City Council minutes Approve the June 19, 2024 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Wednesday, June 19, 2024

SPECIAL MEETING
At 4:01 p.m., Mayor Sheila Mohan called the Special City Council Meeting to order in Cupertino City Hall Conference Room C, 10300 Torre Avenue.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

In open session prior to closed session, Mayor Mohan opened the public comment period regarding any item on the agenda. No members of the public requested to speak, and Mayor Mohan closed the public comment period.

CLOSED SESSION

1. Subject: Conference with real property negotiator pursuant to Government Code § 54956.8
Property: 19400 Stevens Creek Blvd., Cupertino (APN 375 01 023) Agency Negotiator: Pamela Wu (Appointment Pending)
Negotiating Party: Yuki Farms
Under Negotiation: Price and terms of payment
Council conducted the conference with real property negotiator regarding Property:
19400 Stevens Creek Blvd., Cupertino (APN 375 01 023); Agency Negotiator: Pamela Wu (Appointment Pending); Negotiating Party: Yuki Farms; Under Negotiation: Price and terms of payment.

2. Subject: Conference with legal counsel - anticipated litigation: significant exposure to litigation pursuant to Government Code § 54956.9(b) (one case) Council conducted the conference with legal counsel regarding anticipated litigation:
significant exposure to litigation.

OPEN SESSION REPORT REGARDING CLOSED SESSION
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City Council Minutes June 19, 2024
City Attorney Jensen conducted the open session report regarding the closed session. City Attorney Jensen reported that there was no reportable action.

ADJOURNMENT
At 6:47 p.m., Mayor Mohan adjourned the Special City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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City Council Minutes June 19, 2024
City Council Agenda June 19, 2024
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.

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 6 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format.

IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code section

CITY OF CUPERTINO
Agenda Item
24-13105 Agenda Date: 7/2/2024
Agenda #: 4.

Subject: Second reading of Municipal Code Amendments to Chapter 19.48 (Fences), Chapter 19.12 (Administration), and Chapter 19.08 (Definitions) and related CEQA exemption. (Application No.: MCA-2024- 001; Applicant: City of Cupertino; Location: Citywide)
Conduct the second reading and enact Ordinance No. 24-2260: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO AMEND MUNICIPAL CODE CHAPTER 19.08, CHAPTER 19.12, AND CHAPTER 19.48 REGARDING FENCES", which includes a finding to find the actions exempt from CEQA.

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CITY COUNCIL STAFF REPORT
Meeting: July 2, 2024
Subject
Second reading of Municipal Code Amendments to Chapter 19.48 (Fences), Chapter 19.12 (Administration), and Chapter 19.08 (Definitions) and related CEQA exemption. (Application No.: MCA-2024-001; Applicant: City of Cupertino; Location: Citywide) Recommended Action
Conduct the second reading and enact Ordinance No. 24-2260: An Ordinance of the City Council of the City of Cupertino amending Chapter 19.48 (Fences), Chapter 19.12 (Administration), and Chapter 19.08 (Definitions), which includes a finding to find the actions exempt from CEQA.

Discussion
During a regular meeting held on June 18, 2024, City Council conducted the first reading for Ordinance No. 24-2260. Staff presented details about the proposal to modify standards for fences outlined in Cupertino Municipal Code Chapter 19.48 to streamline reviews, bring standards up to date with State laws and internal practices, and clarify standards for consistency in application. At the meeting, staff clarified revisions to the standards for hedges, the requirements for measuring fence height, and the basis for the reduced size of hillside lots where solid board fencing is allowed.

If Council approves these changes today, the proposed ordinance will take effect after thirty (30) days on August 1, 2024.

Prepared by: Emi Sugiyama, Associate Planner
Reviewed by: Benjamin Fu, Director of Community Development Christopher Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Ordinance No. 24-2260
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ORDINANCE NO. 24-2260

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO AMEND MUNICIPAL CODE CHAPTER 19.08, CHAPTER 19.12, AND CHAPTER 19.48 REGARDING FENCES
The City Council of the City of Cupertino finds that:

1. WHEREAS, Cupertino Municipal Code Chapter 19.48 outlines the requirements for fences in all zones; and

2. WHEREAS, the City Council desires to have objective standards applicable to projects that are clear and understandable to ensure orderly development; and

3. WHEREAS, the Ordinance amends the City's Municipal Code as set forth in Exhibit A to clarify the development standards to be applied to fences in all zones; and

4. WHEREAS, the Ordinance is consistent with the City's General Plan and the public health, safety, convenience, and general welfare; and

5. WHEREAS, in the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. CEQA applies only to projects which have the potential of 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 amendments to the City Code would have no or only a de minimis impact on the environment. The foregoing determination is made by the City Council in its independent judgment; and

6. WHEREAS, following necessary public notices given as required by the procedural ordinances of the City of Cupertino and the Government Code, the Planning Commission held a public hearing on May 28, 2024 to consider the Ordinance; and

7. WHEREAS, on May 28, 2024, by Resolution 2024-08, the Planning Commission recommended on a unanimous vote that the City Council adopt the proposed Municipal Code Amendment to clarify development standards for fences; and

8. WHEREAS, on June 18, 2024, upon due notice, the City Council has held at least one public hearing to consider the Municipal Code Amendment; and

9. WHEREAS, the City Council of the City of Cupertino is the decision-making body for this Ordinance.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:

SECTION 1. Adoption.

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

SECTION 2. Findings
The City Council finds the following as set forth by Municipal Code Sections 19.152.020C and

19.152.030D:

1. That the proposed zoning is in accord with Title 19 of the Municipal Code and the City's Comprehensive General Plan (Community Vision 2040) and the proposed amendments are internally consistent with Title 19 of the Municipal Code.

The proposed updates to the Municipal Code do not change any zoning designations, but rather modify Chapter 19.48 by adding new standards to create consistent requirements for the implementation of the fence ordinance and updating existing standards to streamline processes and align regulations with updated state allowances. The proposed amendments do not render existing provisions of the Municipal Code inconsistent with those proposed.

2. The proposed zoning is in compliance with the provisions of the California Environmental Quality Act (CEQA).
in the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. CEQA applies only to projects which have the potential of 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 amendments to the City Code would have no or only a de minimis impact on the environment. The foregoing determination is made by the City Council in its independent judgment.

3. The site is physically suitable (including, but not limited to, access, provision of utilities, compatibility with adjoining land uses, and absence of physical constraints) for the requested zoning designation(s) and anticipated land use development(s).

Not applicable. The proposed ordinance amendments do not change the zoning designation for any properties, nor does it change any land uses allowed. The amendments also do not propose any physical changes in the environment or increased development.

4. The proposed zoning will promote orderly development of the City.

By modifying and updating regulations for fences, the ordinance will promote orderly and consistent implementation of the regulations for development in the City.

5. That the proposed zoning is not detrimental to the health, safety, peace, morals and general welfare of persons residing or working in the neighborhood of subject parcels.

The proposed ordinance provides regulation to maintain the health, safety, peace, morals and 111
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general welfare of persons residing or working in the neighborhood of subject parcels by providing regulations and consistent requirements to address the development of fences.

6. The proposed amendments are internally consistent with this title.

All the necessary chapters and sections of Title 19: Zoning have been amended to ensure internal consistency with the proposed regulations.

SECTION 3. 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 4. California Environmental Quality Act.

Determine that Project is exempt under the requirements of the California Environmental Quality Act (CEQA) of 1970, and CEQA Guidelines (collectively, “CEQA”) subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment.

SECTION 5. Effective Date.

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

SECTION 6. 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 this 18th day of June, 2024, at a Regular Meeting of the City Council of the City of Cupertino and ENACTED on the 2nd day of July, 2024, at a Regular Meeting of the City Council of the City of Cupertino by the following roll call vote:

AYES:
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NOES:

ABSTAIN:

ABSENT:

SIGNED:
__________________
Sheila Mohan, Mayor
City of Cupertino
______________________
Date
ATTEST:
__________________
Kirsten Squarcia, City Clerk
________________________
Date
APPROVED AS TO FORM:
__________________
Christopher Jensen, City Attorney
________________________
Date
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ATTACHMENT A ‐ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO TO AMEND MUNICIPAL CODE CHAPTER 19.08, CHAPTER 19.12 AND CHAPTER 19.48 REGARDING FENCES
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.

1. Amend Chapter 19.48 Fences to modify or add the following:

19.48.010 Purpose.

19.48.020 Fence Location and Height for in All Zones Except R1, RHS, R2, and R3 (up to Four Units) Requiring Design Review.

19.48.030 Fence Location and Height for Zones Properties Not Requiring Design Review.

19.48.040 Fence Design Requirements.

19.48.040 Roadway and Driveway Gates.

19.48.050 Proximity of Plants and Fences to Public Streets.

19.48.060 Roadway and Driveway Gates.

19.48.0670 Exceptions–Findings.

19.48.0780 Temporary Fences for Construction.

19.48.0890 Violation–Penalty.

19.48.090 Prohibited fences.
* For statutory provisions making fences taller than ten feet a nuisance, see Civil Code § 841.4. Prior ordinance history: Ords. 112, 686, 852, 1179, 1630, 1637 and 1777.

19.48.010 - Purpose.

The purpose of this chapter is to regulate the location and height of fences and vegetation in yards of all zoning districts in order to protect the safety, privacy, and property values of residents and owners of properties within any zoning district of the City, including but not limited to residential, commercial, offices, institutional, industrial and/or agricultural properties.

19.48.020 - Fence Location and Height for in All Zones Except R1, RHS, R2, and R3 (up to Four Units) Requiring Design Review.

A. Design Review shall be required for projects in all zoning districts except R1, RHS, R2, and R3 (with up to four units).

B. The Approval Body for a proposed project shall have the authority to require, approve, or disapprove wall and fencing plans including location, height, and materials in all zones requiring design review. Where an Approval Body is not identified, the Director of Community Development, or his or her designee, shall have the authority to require, approve, or disapprove fencing plans and design.
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C. The basic Ddesign Rreview guidelines for the review of fences and walls are as follows:

1. Fences and walls separating commercial, industrial, offices, and institutional zones from residential zones shall be constructed at a height and with materials designed to:
a. Acoustically isolate part of or all noise emitted by future uses within the commercial, industrial, offices, or institutional zones. The degree of acoustical isolation shall be determined during the design review process comply with the standards of Chapter

10.48. b. Ensure visual privacy for adjoining residential dwelling units.

2. Fences and walls shall be designed in a manner to provide for sight visibility at private and public street intersections (i.e. corner triangles or any sidewalk sight triangle).

3. Fence design shall be consistent with the standards outlined in this Title for the applicable zone.

4. Fences shall meet the regulations of any applicable Special Area Plan, Design Guidelines, or conceptual development plan.

5. At no point shall fence height exceed 10 feet without a Fence Exception* *For statutory provisions regarding fences taller than ten feet in height, see Civil Code § 841.4.

19.48.030 - Fence Location and Height for Zones Properties Not Requiring Design Review.

Table 19.48.030 sets forth the rules and regulations pertaining to fences in zones on properties where design review is not required. Appendix A is a visual representation of the provisions of Section 19.48.030(A)–(C). The Director of Community Development is authorized to administratively make changes to Appendix A to clarify the intent of these provisions.

Table 19.48.030: Fence Location and Regulations
6 7 foot high fence 3 foot high fence
A. Front Yard Not within required setback area, corner
triangle, or sidewalk sight triangle.

Along any property line,
in any required setback
area, or in corner
triangle, or sidewalk
sight triangle.

B. Rear Yard Along property line or in required
setback area, except not allowed in any
corner triangle or sidewalk sight
triangle.

C. Side Yard 1. Interior residential lots: Along
property line or in required setback
area

2. Corner residential lots:
a. Interior side: Along property line
or in required setback area
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b. Street side:
i. If the rear property line
adjoins a rear property line: S
, the setback from the side
property line: shall be 5 feet.
ii. If the rRear property line
adjoins a side property line of
a key lot: I, in addition to i.
above, setback from street
side property line, within 10
feet of adjacent property line:
shall be 12 feet.

D. Additional
Rregulations for
Residential
Hillside, and Open
Space Zoning
Districts, and R1
Properties with an
Average Slope
Over 20%

1. Open Fencing (composed of materials which result in a minimum of 75% visual transparency), sShall be unrestricted but shall be subject to the regulations in 19.48.030(A) – (D).

2. Solid Board All Other Fencing which otherwise meets the regulations in Section 19.48.030(A)-(C):
a. Net lot area < 130,000 square feet: Shall nNot be limited but shall be subject to the regulations in 19.48.030(A) – (D). b. Net lot area > 130,000 square feet: 5,000 square feet (excluding the principal building) of net lot area may be enclosed with solid board fencing subject to 19.48.030(A) – (D).

E. In areas where a six (6) seven (7) foot fence is allowed, an up to eight (8) foot high fence can be constructed, subject to building permit approval and upon receipt of written approval from adjacent abutting property owners.

F. Hedges exceeding the height requirements for fences outlined in Section 19.48.030(A)-(C) are allowed:

1. Within interior side and rear yards; and

2. Within front or street side yards, if perpendicular to the front and street side property lines and outside of required corner triangle or sidewalk sight triangles G. Minor ornamental
entry features (e.g.
arbor, trellis, entry
gates, light fixtures
meeting the
requirements of
Chapter 19.102).

1. Shall only be included in design of fences within a yard abutting a street lot line; and

2. Shall be limited to one entry feature per street frontage; and

3. Must be incorporated into the fence design, structurally a component of the fence, and shall not be considered an
additional allowance for an accessory structure within required setbacks; and

4. Shall be no taller than eight (8) feet and shall not exceed a cumulative area of twenty-five (25) square feet; and

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6. When viewed from the street, the feature shall be no wider than:
a. Six (6) feet on lots with less than 60 feet of street frontage, or b. Eight (8) feet on lots with 60 feet or more of street frontage.

H. Notwithstanding any other provision of this chapter, fences shall not be located in any future right of way dedication area, and setbacks shall be measured from any planned future street line, as determined by the Public Works Department.

I. If the Director of Community Development determines that a proposed fence is widely visible to public view and has the potential to create impacts on the visual character of an area (for example, blocks public views from the valley floor to the hills or an open space reserve), then the proposed fence shall comply with the requirements in Sections

19.48.030FD(1)(b) & 19.48.030FD(2) regardless of lot size.

19.48.040 - Fence Design Requirements.

A. Prohibited Materials:

The following materials shall be considered “Prohibited Materials” for purposes of this Chapter:

1. Unless required by law or regulation of the City, State or Federal Government, barbed wire, razor wire, chicken wire and similar small-gauge wire or mesh product, and/or electrified fencing are prohibited.

2. Fences made of non-engineered plastic, fabric membranes, cloth, canvas, plywood, uncoated cyclone/chain link, and reed or bamboo with sticks and slats smaller than four inches in width are prohibited, unless located in areas not visible from public areas or adjacent properties.

B. Allowed Materials: Allowed materials include, but are not limited to wood, engineered plastic, vinyl coated cyclone/chain link, metal (e.g. wrought iron), brick, block, stone, and other comparable (safe and commercially acceptable) materials intended for fence use.

C. Material colors shall be natural earth tone and/or vegetation colors including natural hues of brown, green and shades of gray and shall have a reflectivity value of 60 or less.

D. Other materials, except Prohibited Materials, may be allowed if deemed appropriate through Design Review approval.

E. The area between the back of curb and any fencing shall be landscaped, with a suitable permanent irrigation system where necessary, or have pervious flatwork, and be continuously maintained by the property owner.

F. General Maintenance: All fences adjacent to a street, sidewalk, or public right-of-way shall be continuously maintained free of visible and structural defects.

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The proximity of plants and fences to public streets shall be controlled by the provisions of Chapter 14.08 of the Municipal Code.

19.48.0460 - Roadway and Driveway Gates.

Roadway and Driveway gates are allowed if they comply with the Fire Department Standard Details and Specifications for Security Gates for access roadways and driveways and the criteria in Sections 19.48.969(A)-(C). Roadway and drivewayTable 19.48.040 or the gates were in existence prior to September 20, 1999, with necessary permits to install them, are permitted to be replacedif needed. All unpermitted roadway and driveway gates must comply with the regulations outlined below, when replaced.

Table 19.48.060: Roadway and Driveway Gate Regulations
A. All
Residential
Districts,
Except RHS:

1. A driveway gate meeting all of the following requirements may be installed, subject to building permit approval:
a. The driveway gate shall be set back as follows:
i. Interior and Corner Lots: A minimum distance of 20 feet or in accordance with Fire Code standards, whichever is larger, and measured from the front and/or street side property lines, from the future street line, or from the property line after right-of-way dedication area as determined by the Public Works Department. However, in no case shall the
driveway gate be located in front of the building wall line of a primary structure nearest to the right of way;
ii. Flag Lots: A minimum distance of 20 feet or in accordance with Fire Code standards, whichever is larger and measured from the property line closest to the street, from the future street line, or from the property line after right-of-way dedication area as determined by the Public Works
Department.
b. The driveway gate shall meet all height regulations described in Section 19.48.030; and
c. The driveway gate shall not be located in any required corner triangle or sidewalk sight triangles; and
d. The driveway gate shall not impede required paths of travel for compliance with the State and Federal law; and
e. No more than one driveway gate shall be allowed per property; and
f. The driveway gate opening shall not be wider than 20 feet; and 118
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g. The driveway gate shall not be located in a driveway for a side entering garage; and
h. The driveway gate shall not be located in a manner which interferes with the required open off-street parking on a site; and
i. The driveway gate shall meet the fence design requirements outlined in Section 19.48.040 and shall not make use of collapsible materials (e.g. scissor gates); and
j. Driveway gates shall meet the regulations of any applicable Special Area Plan, Design Guidelines, or conceptual
development plan; and
k. The Fire Department shall approve the locking mechanism and location of the gate.

2. A Fence Exception shall be obtained for any driveway gates that do not meet the standards outlined above. These driveway gates shall meet all the following:
a. The driveway gate shall be setback a minimum distance of 20 feet from the front and/or street side property lines, from the future street line, or from the property line after right-of-way dedication area as determined by the Public Works
Department, whichever is greater, and not be located on or along any property line; and
b. The Applicant must provide documented evidence that the gates are needed for demonstrated security and/or
demonstrated safety reasons, which would not otherwise be mitigated by placing a fence or driveway gate in a manner permitted by the Municipal Code; and
c. The Fire Department approves the locking mechanism and location of the gate.

B. RHS Zoning
District:

1. Roadway and Driveway Gates may be used to control access to private roads and driveways provided that the design of the gate, including location, dimension and the locking mechanism, are approved by the Director of Community Development after consultation with the Fire Department.
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C. Other
Development:

1. A driveway gate meeting all of the following requirements may be installed, subject to Administrative Design Review approval. All driveway gates shall:
a. Be setback a minimum distance of 20 feet from front and/or street side property lines. However, under no circumstances shall the gate be located closer to the property line than the location of the building wall of the primary building located on the property; and
b. Not be located in any corner triangle or driveway sight triangle; and
c. Not be installed in any parking area or portion of parking facilities designated for commercial, retail parking, and/or customer serving office,

2. An at-grade driveway gate shall:
a. Be no taller than seven feet in height;
b. Utilize architecturally decorative and at least 50% open materials; and
c. Secure an open, surface parking lot which is largely obscured from views from the right-of-way by existing structures and serves a private use (e.g. church, office, multiple-family development);

3. Driveway gates for parking structures and below grade parking shall be allowed:
a. When proposed to assure availability of parking for different uses (e.g. separating office and residential parking) in a shared parking structure;
b. When proposed to secure access for a single, private use;

4. The driveway gate is required as a condition of approval of obtaining federal or state funding for development;

5. The driveway gate shall meet the fence design requirements outlined in Section 19.48.040 and shall not make use of collapsible materials (e.g. scissor gates); and

6. The Fire Department shall approve the locking mechanism and location of the gate.
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7. A Fence Exception shall be obtained for any driveway gates that do not meet the standards outlined above, prior to issuance of building permits. Roadway and driveway gates that do not meet the standards outlined above may be approved through a Fence Exception only if the development can adequately justify that the proposed gates are needed for demonstrated security and/or demonstrated safety reasons.

Table 19.48.040: Roadway and Driveway Gates
A. R-1, R2 and
R3 Zoning
District
A driveway gate may be installed after a Fence Exception is obtained and shall meet the following:

1. Driveway gate shall be setback a minimum of 30 feet from the front and/or street side property lines;

2. Applicant must provide evidence that the gates are needed for demonstrated security and/or demonstrated safety reasons; and

3. The Fire Department approves the locking mechanism and location of the gate.

B. RHS Zoning
District
Gates may be used to control access to private roads and driveways provided that the design of the gate, including location, dimension and the locking mechanism, are approved by the Director of Community Development after consultation with the Fire Department.

C. Other
Properties
Roadway and driveway gates may be approved through a fence exception if the development meets any one of the following conditions:

1. Is a mixed-use development, where the parking for different uses needs to be separated to assure availability of parking for each use

2. If a development include below-grade parking structure, where the gates are required to secure the below-grade parking;

3. If the gates are required for a development to obtain federal or State funding;

4. If the development is secluded;

5. If the gates are needed for demonstrated security and/or demonstrated safety reasons.

D. Property
located in
other
residentially
zoned areas
In addition to the requirements of Section 19.48.040C, the application shall also be subject to the requirements of 19.48.040A.

19.48.050 - Proximity of Plants and Fences to Public Streets.

The proximity of plants and fences to public streets shall be controlled by the provisions of Chapter 14.08 of the Municipal Code.
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19.48.0670 - Exceptions–Findings.

Where practical difficulties, unnecessary hardships, or results inconsistent with the purpose and intent of this chapter result from the strict application of the provisions hereof, exceptions may be granted as provided in Chapter 19.12, and this section for all zoning districts except the RHS Zoning District, in which case a Hillside Exception must be obtained in accord with the requirements of Section 19.40.040 and Section 19.40.070. The Approval Body may grant a request for a Fence Ethe exception only if all based upon the following findings can be made:

A. The literal enforcement of the provisions of this chapter will result in restrictions inconsistent with the spirit and intent of this chapter and the proposed development is otherwise consistent with the City's General Plan and with the purpose of this chapter as described in Section 19.48.010.

B. The granting of the exception will not result in a condition which is materially detrimental to the public health, safety or welfare or result in a hazardous condition for pedestrian and vehicular traffic.

C. The exception to be granted is one that will require the least modification of the prescribed regulation and the minimum variance that will accomplish the purpose.

D. The proposed exception will not result in a hazardous condition for pedestrian and vehicular traffic.

E. The proposed development is otherwise consistent with the City's General Plan and with the purpose of this chapter as described in Section 19.48.010.

D. When driveway, roadway, and structured parking gates not meeting allowed standards are proposed: The proposed development meets the requirements of the Santa Clara Fire Department and Sheriff's Department, and if security gates are proposed, that attempts are made to standardize access.

E. When fences and gates that exceed allowable height limitations are proposed: The fence height for the proposed residential fence is needed to ensure adequate screening and/or privacy.

19.48.0780 - Temporary Fences for Construction.

A. The Chief Building Official may require persons constructing structures in the Ccity to erect and maintain temporary fences around all or a portion of the construction site in order to secure the site from entry by the general public. Any such fencing may only be erected during the time a valid building permit is issued for construction.

B. Temporary fences are not required to comply with the location requirements of Section

19.48.030 but shall not be located in any corner or sidewalk sight triangle.

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and allowed materials outlined in Section 19.48.040 (A) and (B), except that uncoated cyclone/chain link fences may be allowed.

D. All fences adjacent to a street, sidewalk, or public right-of-way shall be continuously maintained free of visible and structural defects.

19.48.0890 - Violation–Penalty.

Any person who violates the provisions of this chapter shall be guilty of an infraction and upon conviction thereof shall be punished as provided in Chapter 1.12.

19.48.090 - Prohibited Fences.

Barbed wire, razor wire, and/or electrified fencing are prohibited unless required by law or regulation of the City, State or Federal Government.

2. Amend or add the following definitions in Section 19.08.030 of the Municipal Code to read as follows:
“Accessory structure” means a subordinate structure, the use of which is purely incidental to that of the main building and which shall not contain living or sleeping quarters.

Examples include a deck, tennis courts, freestanding trellis, light post, or car shelter. Fences eight feet or less or minor ornamental entry features structurally integrated as part of a fence are excluded.
"Fence" means a man-made structure, including a wall, which is designed, intended or used to protect, defend or obscure the interior property of the owner from the view, trespass or passage of others upon that property.
"Fence height" means the vertical distance from the highest point of the fence (excluding including post caps) to the lowest adjoining natural grade or finished grade as permitted through an approved permit adjoining the fence. In a case where the finish grade is different for each face side of the fence, the natural or approved final grade with the highest elevation shall be utilized in determining the fence height. “Hedge” means a dense grouping of shrubs or trees that form a substantially continuous screen or boundary, intended or used to protect, defend or obscure the interior property of the owner from the view, trespass or passage of others upon that property. "Residential district," for purposes of the Sign and Fence Ordinances, means the R1, RHS, R2, R3, R1C, A, and A1 zoning classifications which are consistent with the residential designation of the Cupertino general plan.
"Sidewalk site sight triangle" is a triangular shaped area described in Cupertino Standard Detail 7-6. (See Appendix C, Cupertino Standard Detail; Sidewalk Site Sight Triangle (Sidewalk Clearance at Driveway)
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3. Amend Section 19.12.030 Approval Authority, to modify the following:

Type of
Permit or
Decision
A, B
Administrative
Review
Arts and
Culture
Commission
Planning
Commission
City
Council
Public
Hearing/
Public
Meeting/
Comment
Period C
Noticing
Radius D
Posted
Site
Notice
Expiration
Date E
Chapter/
Findings
Fence
Exception
s
F - A1 A1 L PM 19.12.110/
Adjacent Yes 1 year 19.48.0670
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CITY OF CUPERTINO
Agenda Item
24-13260 Agenda Date: 7/2/2024
Agenda #: 5.

Subject: Status update for prior Internal Audit Work Plans in Fiscal Year (FY) 2021-22 and FY 2022-23 Receive status update report for prior Internal Audit Work Plans in FY 2021-22 and FY 2022-23 CITY OF CUPERTINO Page 1 of 1 Printed on 6/26/2024
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CITY COUNCIL STAFF REPORT
Meeting: July 2, 2024
Subject
Status update for prior Internal Audit Work Plans in Fiscal Year (FY) 2021-22 and FY 2022- 23 Recommended Action
Receive status update report for prior Internal Audit Work Plans in FY 2021-22 and FY 2022-23
Discussion
Background
In Fiscal Year FY 2019-20, the City began an internal audit program and issued a Request for Proposal (RFP) for internal audit services. After reviewing the proposals, the evaluation committee, which was a subcommittee of consisting of staff and audit committee members selected Moss Adams as the City’s Internal Auditor. Moss Adams serves as the City’s designated Internal Auditor and conducts projects focusing on:
 Risks
 Internal controls
 Efficiency and effectiveness
 Best practices
 Compliance
Moss Adams serves as the City’s Internal Auditors and presents annual audit plans and final audit reports to the Audit Committee. Once reviewed by Audit Committee the plans and audits are forwarded to the City Council who approves the annual internal audit work plan and receives the final completed audits. The City is in contract with Moss Adams until June 2026.

In 2020, Moss Adams conducted an Enterprise Risk Assessment (ERA) to analyze the City’s risk areas. For each risk category assessed, the risk assessment included an overview of the risk condition in the City, including the current risk level, likelihood, impact, preparedness, and trajectory. This assessment was used as a guide to the internal audits recommended in FY 2022-24.
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Prior Year Internal Audit Work Plans
Moss Adams recommended staff begin updating both Audit Committee and City Council on the status of audit recommendations about two to three years after the first audit was completed. This would provide staff enough time to work through recommendations and provide a meaningful update. After this initial update, Moss Adams recommends updating Audit Committee and City Council on an annual basis.

In 2021, 2022, and 2023, Moss Adams developed an Internal Audit Work Plan to guide activities for each respective fiscal year. All prior year internal audits can be found online at https://www.cupertino.org/our-city/departments/finance/internal-audit.

The chart below provides a summary of each Internal Audit Work Plan. The FY 2023-24 Audit Work Plan was approved by City Council on July 24, 2023. It is anticipated that final audits from the current fiscal year’s work plan will be presented to City Council in July and September 2024.

Internal Audit Work Plan and Items Internal Audit
Work Plan and
Final Audits
Received by Audit
Committee
Internal Audit Work Plan
Approved and Final
Audits Received by City
Council
FY 2021-22 Internal Audit Work Plan and Items
Internal Audit Work Plan:
 Procurement Operational Review
 Policy Inventory and Plan (Fiscal)
 Capital Program Effectiveness
Study
 Fraud, Waste, and Abuse
Program
May 24, 2021
February 24, 2022
May 23, 2022
May 23, 2022
June 27, 2022
July 2020, 2021
April 19, 2022
July 19, 2022
July 19, 2022
July 19, 2022
FY 2022-23 Internal Audit Work Plan and Items
Internal Audit Work Plan:
 Budget Process Review
 Enterprise Leadership
Effectiveness Study
 Library Construction Audit
June 27, 2022
February 27, 2023
July 24, 2023
April 24, 2023
September 6, 2022
March 21, 2023
September 6, 2023
May 16, 2023
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Attachments A through G of this staff report provide further information including the internal auditor’s specific observations, recommendations, and status of all prior year audit recommendations as of June 30, 2024.

Each of the internal audits and recommendations are at different stages of completion.

The following internal audits and recommendations are fully completed:
 Fiscal Policy Inventory and Plan (100% completion of high-risk policy areas)  Fraud, Waste, and Abuse
 Budget Process Review
 Library Construction Audit
The other internal audits and recommendations are currently in progress and/or ongoing.

The status update report for prior Internal Audit Work Plans in FY 2021-22 and FY 2022- 23 were presented to the Audit Committee on June 24, 2024. The Audit Committee voted unanimously to receive the report and forward them to the City Council.

Next Steps
Administrative Services staff will begin annual reporting of statuses of internal audits and recommendations to Audit Committee and City Council beginning in FY 2024-25, which will include FY 2023-24 Internal Audit Work Plan recommendations.

Sustainability Impact
No sustainability impact.

Fiscal Impact
Internal Audit is budgeted in 100-41-405 700-702. To date the City has spent approximately $392,000 in internal audit costs since FY 2020-21. In FY 2024-25, $60,000 is budgeted down from the previously budgeted amount of $100,000 due to a service level reduction approved as part of the final budget.

California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Toni Oasay-Anderson, Senior Management Analyst Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Procurement Operational Review - Audit Recommendation Update B – Fiscal Policy Inventory & Gap Analysis - Audit Recommendation Update C – Capital Program Effectiveness - Audit Recommendation Update D – Fraud, Waste, and Abuse Program - Audit Recommendation Update E – Budget Process Review - Audit Recommendation Update 128
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F – Enterprise Leadership Assessment - Audit Recommendation Update G – Library Expansion Construction - Audit Recommendation Update 129
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Audit Report
Received by AuditCommittee
Audit Report
Received by
City Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree?
Status Completion Date/
Estimated Completion Date
The City’s current procurement activities are highly
decentralized, leading to increased inefficiencies as
departments create customized processes for
common procurement practices.

Take steps towards greater centralization of procurement activities and elevate procurement to a strategic function with the installation of a Procurement Officer or Procurement Division.

Yes Completed 5/1/23 ‐ hired Purchasing Manager and developed Purchasing Division
Procurement roles and responsibilities are not
clearly understood among City staff and the
Council, which can hinder organizational
effectiveness.

Develop a matrix outlining the roles and responsibilities for all stakeholders engaged in procurement at various levels.

Yes Completed 2/14/24 ‐ Purchasing Policy and Purchasing Matrix approved. 2/21/24 ‐ CMC Ordinance 3.22 & 3.23 approved by Council4/5/24 ‐ Ordinance revised formally into CMC The City does not provide consistent, regular
training on purchasing activities to all
employees engaged in purchasing activities.

A. Develop an onboarding program for staff who are responsible for procurement within the City.

B. Supplement the current training catalog published by Human Resources (HR) with procurement‐specific training opportunities.

C. Evaluate the current training program content, audience, and frequency to maximize the impact of current training activities.

Yes In progress A. Est. Comp. Date ‐ 1/1/25
B. Est. Comp. Date ‐ 11/1/24
C. Est. Comp. Date ‐ 11/1/24
The City’s procurement processes often rely on a
single individual to maintain continuity ofoperations. This places the City at an increased risk of institutional knowledge loss if those individuals
are not present.

Establish and document backups for processes managed by a single individual. Conduct cross‐training among employees to ensure adequate and consistent coverage of key functions and duties.

Yes Ongoing There is a current policy and procedure on stretch assignments for current staff to become cross‐trained in other areas for growth and support. Estimated completion date 6/30/25
There are gaps in the City’s ability to effectively
manage and communicate change related to
procurement within the organization.

Adopt a standardized change management process to promote communication, adoption, and accountability.

Yes Completed 2/1/2024. The revised Purchasing Policy, new PW Purchasing Policy and City Council approval of Municipal Code
improvements will standardize process and these changes were discussed with each department. In addition monthly meetings with the Purchasing Manager and department
purchasing liaisons were initiated in July 2023 and continue to occur. Future trainings on conducting a solicitation and contract development are planned for citywide staff.

There are instances where procurement practices
do not align with established policies or City values
regarding inclusion and sustainability.

Standardize and communicate assistance opportunities for small businesses to meet the City’s insurance requirements; where possible, update templates to modify insurance requirements for small business contracts.

Yes Completed 8/1/23 ‐ Guidance provided to staff for when and how insurance requirements can be modified. Recreation day
vendors have unique contracts and insurance requirements.

New contract templates for small businesses specifically were not developed.

Increased complexity within the operating
environment, along with the COVID‐19
pandemic, have presented the City with an
opportunity to evaluate and modernize
its procurement processes to suit its current
operating conditions.

A. Explore and implement modern procurement processes and supporting technologies.B. Conduct robust training with all employees and establish annual refresher training for employees who are highly involved with these business processes.

C. Formalize and develop procurement toolkits and comprehensive self‐ service guidance for all business functions.

D. Establish targeted coordination meetings for employees who are highly involved in specific functions to proactively resolve issues and support continuous improvement.

Yes In progress A. In progress ‐ 9/1/24 ‐ City's Business Opportunity Website; 4/1/25 ‐ Enterprise Resource Planning (ERP) efficiencies B. In progress ‐ 11/1/24C. In progress ‐ 1/1/25D. Completed. 7/20/23 The City’s procurement methods and thresholds
have not been updated since 2013.

A. Review and update City purchasing method guidance as appropriate.

B. Assess the efficacy of the current purchasing methods and thresholds; assess opportunities to streamline processes and generate clarity.

Yes Completed 2/14/24 ‐ Purchasing Policy, with Purchasing Matrix, and Public Work Purchasing Policy approved.
2/21/24 ‐ CMC Ordinance 3.22 & 3.23 approved by Council 2022 Procurement Operational Review
As of 4/19/2022 Update as of 6/2024
2/24/2022 4/19/2022
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Audit Report
Received by AuditCommittee
Audit Report
Received by
City Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree?
Status Completion Date/
Estimated Completion Date
2022 Procurement Operational Review
As of 4/19/2022 Update as of 6/2024
Although procurement data, including budget data,
is generally available to City staff, some users
report difficulty in properly accessing and/or
interpreting this data. Additionally, some
procurement‐related data is inconsistently named.

Consider surveying staff to determine common and essential project information and create improved self‐serve options, such as report templates or user training guides. Ensure ongoing data accuracy, completeness, and consistency through developing a data management strategy and processes.

Yes (response not
included the original
staff report).

In progress 1/1/2025. The approved Purchasing Policy (February 2024) includes details and expectations for standardization and consistency. Beginning July 2023, the Purchasing Manager approves all PO's. A Business Analyst Report for identifying PO and invoice information was created and distributed to
citywide analysts in March 2024.

Ongoing efforts include revising SOP's for purchase orders, developing solicitation documents with guidance for staff, revising finance‐related citywide policies (p‐card, travel and gifts/gratuities) and creating and administering training for purchasing activities and contract development.

Many procurement processes at the City are not
well documented and are subsequently performed
inconsistently across City departments. Current
purchasing policies and procedures are out of date,
hindering a consistent employee understanding of
requirements, processes, and protocols.

Develop a prioritization plan for updating or developing comprehensive, clear, and concise procurement policies and procedures.

Yes (response not
included the original
staff report).

Completed 6/15/24 ‐ Purchasing Manager established plan for identifying, coordinating and communicating citywide updates to policy and procedures for procurement‐related activities. Monthly purchasing meetings were established to communicate, train and implement ongoing improvements.
2/24/2022 4/19/2022
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Audit Report
Received by Audit
Committee
Audit Report
Received by City
Council
Moss Adams Recommendations Did the
CityAgree?
Status Completion Date/
Estimated Completion Date
Accounting and Financial Reporting Yes Completed July 2023.

Accounts Payable Yes Completed April 2023.Budgeting Yes Completed April 2023.

Capital Assets Yes Completed April 2023.

Cash Management Yes Completed April 2023.

Payroll and Timekeeping Yes Completed April 2023.Procurement Yes Completed February 2024.Revenue and Accounts Receivable Yes Completed April 2023.

Debt Management/Tax Bond Compliance Yes In progress Estimated completion September 30, 2024.

Gifts and Donations Yes Completed Estimated completion June 30, 2024.

Grant Management Yes Completed City Council adopted the Council Grants Policy on July 6, 2023.

Investment Management Yes Completed Adopted by Council on May 14, 2024.

Credit Cards Yes In progress Estimated completion September 30, 2024.

Revised policy currently in development.

Inventory Yes In progress Estimated completion September 30, 2024.

Initial review process began in January 2024.

Travel and Expense Reimbursement Yes In progress Estimated Completion September 30, 2024.

Implementation will occur in FY25 due to meet
and confer requirements with bargaining
units.
5/23/2022 7/19/2022
As of 7/19/2022
2022 Fiscal Policy Inventory & Gap Analysis Report
Update as of 6/2024
Update or Create Policies for the following areas:

High‐Risk Areas: Inherently high risk area where full or major gaps are identified and area is a high priority for the City's operations and structureMedium‐Risk Areas: Inherently medium risk area where full or major gaps are identified and area is a high priority for the City's operations and structureLow‐Risk Areas: Inherently low risk area where minor gaps are identified and area is a low priority for the City's operations and structure
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Audit Report
Received by Audit
Committee
Audit ReportReceived by City
Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree?
Status Completion Date/
Estimated Completion Date
The City primarily relies on the Annual CIP Budget
document to guide yearly operations but has not
yet developed a long‐range CIP plan.

A. Develop long‐range CIP plan to strategically guide capital improvement investments.B. Increase the standardization and transparency of the CIP project prioritization process.

Yes Completed Multi‐year forecasts for the CIP plan
are proposed annually. Annually,the prioritization of each project is noted, using standardizedcategories. (ongoing item)
The CIP financial forecasting process is short‐term
and prone to yearly variability. Long‐term planning
and stability in the program are hindered by
fluctuations in annual budget allocation and City
priorities.

A. Implement a multi‐year financial forecast for CIP projects to analyze CIP and budget implications for future operating years.

B. Create a citywide grant strategy to fully leverage grant funding opportunities.

Yes Completed Multi‐year forecasts for the CIP plan
are proposed annually.

Grant administration and
management staffing is underconsideration. (ongoing item) A Facility Condition and Use Efficiency Assessment
was completed in December 2018 and identified
more than $78 million dollars of required
maintenance. However, this assessment is not
meeting current needs and is out of date.

Continue efforts to commission a new facility conditions assessment.

Yes Completed The Assessment report was
updated. (12/2/2022)
The City’s CIP team is sufficiently staffed to meet
the needs of its current workload. However, theteam is not staffed to provide backup for key roles and relies heavily on select individuals for essential
institutional knowledge.

Consider the following staffing changes:

A. Pursue retaining the two limited‐term project managers as full‐time City employees.

B. Immediately hire support for the Public Works seniormanagement analyst.C. Establish a senior project manager position.D. Hire a grant management position to support City operations.

Yes In progress Senior staff was added to CIP. Other
positions are being considered.However, there have been recruitment issues in findingcandidates with the necessary skillsets.

The CIP team has yet to develop updated and
comprehensive policies and procedures, hinderingthe team’s ability to execute operational activities quickly and consistently.

Inventory current policies and procedures and create a
prioritized schedule for policy and procedure development.

Yes Ongoing Policies are under review.

The CIP Division has strong expertise in managing
procurements and contracts. However, as a result
of the City’s decentralized procurement model, the
CIP team is experiencing similar challenges within
their purchasing processes as other departmentsacross the City.

Maintain strong collaboration with the City’s Financedepartment to remain up to date on procurement changes resulting from the 2022 Procurement Operational Review.

Yes Completed The City created the Purchasing
Manager position in 2023.

Purchasing Manager meets with CIP
team monthly and on an as‐neededbasis.

The CIP Division’s systems are insufficient to meet
the team’s need for comprehensive project and
budget management.

Continue current efforts to develop a comprehensive CIP Management solution and clarify expectations for use of the current systems until the new solution is implemented.

Yes Ongoing The CIP system is in use and
continually updated. (ongoing item)
While the CIP Division uses a variety of tools to
report project progress, staff note that there are
barriers to effectively communicating programneeds and trade‐offs to City leadership.

A. Establish an annual CIP report detailing project progress, prior year expenditures, and CIP accomplishments to effectivelycommunicate opportunities and challenges to stakeholders, including City leaders, internal staff, and the public.B. Correct the data accuracy issues in the community‐facing dashboard to ensure public information is always current and accurate.

Yes Ongoing Quarterly reports are included as an
attachment to the City's Q1, Mid‐
Year, and Q3 financial reports.Annual reports have been included as part of the CIP study session item.(ongoing item)
2022 Capital Program Effectiveness Study
As of 7/19/2022 Update as of 6/2024
5/23/2022 7/19/2022
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Audit Report
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Moss Adams Observations Moss Adams Recommendations Did the CityAgree?
Status Completion Date/
Estimated Completion Date
The City has not implemented arobust fraud, waste, and abuse program to educateemployees on potential red flags or a whistleblower hotline to report allegations of
wrongdoing that could detect issues sooner.

Develop and implement a comprehensive fraud,waste, and abuse program.

Yes Completed October 2022. The City has a policy in
place and conducted a recorded trainingon the FWA program including the anonymous hotline. All new hires are
required to view the training and policy.

Employees must sign a document toconfirm.

The City needs an anonymous method foremployees or members of the public to submit complaints.

Implement an anonymous whistleblower hotline
and standardized complaint managementprocesses.

Yes Completed September 2022. The City entered into
contract with a FWA hotline provider.

The City needs to have regular ethics or fraud,waste, and abuse training. Training is imperative to a robust ethics and fraud, waste, and abuseprogram by reinforcing the City’s values, describing suspicious activity, and providing information on
the organization’s reporting environment (i.e., howto report concerns, complainant protections, complaint responses).

Develop and schedule fraud, waste, and abusetraining to all City employees, includingmechanisms in place to protect employees fromretaliation.

Yes Completed In October 2022, all employees were
required to attend or view the recorded
training. Employees had to sign adocument to confirm. All new hires are required to view the training and policy.
2022 Fraud, Waste, Abuse Program (FWA)
As of 7/19/2022 Update as of 6/2024
6/27/2022 7/19/2022 (first
reading)
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Audit Report
Received by Audit
Committee
Audit Report
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Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree?
Status Completion Date/
Estimated Completion Date
Cupertino’s budget process acts in accordance with
the significant majority of budget best practicesdeveloped by the GFOA (76 of 80 criteria in total); however, there are four elements of the City’sbudget process that lacked documentation tosupport alignment with best practices:
1) Develop policy on balancing the operating
budget
2) Performance measures are linked to financialoutcomes3) Monitor, measure, and evaluate stakeholder satisfaction4) Adjust broad goals, if appropriate (The City may have an informal process for evaluating and, ifnecessary, adjusting its goals and/or performance measures during the budget cycle. However, there
is not a written policy or procedure that defines
how the City would adjust these goals).

Develop a prioritized implementation plan to support progress towards full alignment with GFOA best practices in the four categories that are not aligned.

Yes Completed 1) May 2023 Added balanced budget policy. 2) Performance measures linked to financialoutcomes in FY 2023‐24 budget document. 3) City Manager's Office to explore conducting a
community survey within the next 6‐12 months.
(ongoing item)4) In early 2023, Council re‐affirmed five strategic goals to provide a framework for city's priorities.

These goals have been prominently displayed on
the city's website here:https://www.cupertino.org/our‐city/city‐council/city‐council‐goals. As part of the Council Prioritization and FY 25‐27 Work Program Adoption
Workshop that will take place in early 2025,
Council will have an opportunity to review existing
strategic goals, and either re‐affirm, or adopt new
ones. After the workshop, staff will update thewebsite to reflect newly adopted strategic goals.

The new goals will also be included in the budgetdocument.

Although budget development and monitoring
training is provided by Finance during onboardingand revisited at a high level during budget kick‐offs,departmental staff engaged in budgeting desiremore in‐depth and regular training to keep up with continuous changes within the City.

Develop regular training and refresher courses for staff engaged in budget development and monitoring across City departments.

Yes Completed May 2023 Budget training added to the HUB.

Annual training will be required for staff working
on the budget each July. Continue to provideregular training for base, proposed, and quarterly budgets as part of quarterly kick‐off meetings.

Finance has developed several guides, tools, andinstructions to support staff across all phases of the development process that are stored in severalplaces across the City’s systems. This has led toinefficiencies finding and using the most updated documents.

A. Create a dedicated space on the HUB to consolidate budgetguides, instructions, and tools.B. Create a budget lifecycle overview outlining each phase of thebudget development and monitoring process with links to tutorials or systems used to support deliverables across each phase.

Yes Completed Jan 2023 Budget page added to Hub with budget guides, instructions, tools and budget calendar. Inaddition, short Budget 101 videos have beencreated and uploaded to the City's website.

The City uses OpenGov to submit, review, andapprove budgets; however, the status of budgetreviews and approvals occurs via email, leading to challenges effectively communicating budgetprogress.

Evaluate opportunities to provide more relevant status indicators in OpenGov, and train staff on OpenGov' s budget status and notifications features
Yes Completed Jan 2023 OpenGov automatically sends email notifications to staff when budget status is
updated.

As of 3/21/2023 Update as of 6/2024
2022 Budget Process Review
2/27/2023 3/21/2023
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Audit ReportReceived by
City Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree? Status Completion Date/ Estimated Completion Date
While the City has established many policies that
are aligned with best practices, there are
opportunities to increase the effectiveness of
current policies.

Continue current efforts to implement the City Council Procedures Manual and hold meeting participants accountable.

Yes Completed Council Procedure Manual (Resolution No. 24‐ 024) reviewed/updated in March 2024
With the adoption of the City Council Procedures
Manual and other recent changes, the City has
made positive progress toward increasing theeffectiveness of City Council meetings. However, ongoing challenges remain to ensure that meetingsare productive and timely.

Continue current efforts to implement the City Council Procedures Manual and hold meeting participants accountable.

Yes Ongoing Council Procedures Manual (Resolution No. 24‐ 024) reviewed/updated in March 2024.

Implemented 5 minutes per item per Council
member for discussion and deliberation.
(Procedures Manual Section 8.83)
There is a well‐documented history of mistrust and
poor communication between the Council andmanagement.

A. Continue current efforts to implement recommendations from the 2023 Internal Review, with a focus on expanding the use of 1:1 pre‐meetings with Council membersB. In alignment with Municipal Code guidelines, consider developing and implementing a set of practical criteria to determine when requests for information will require a significant allocation of staff time or otherwise exceed the code guidelines.

C. Continue current efforts to clarify roles and responsibilities and build productive working relationships by providing regular governance trainings and retreats.

Yes Ongoing Recommendation A: City Manager has Bi‐Weekly one‐on‐one meetings with each Council member.

In addition, significant Council reports City
Manager and City Staff have Council briefings on
the Friday before each Council meeting to review
the items and answer questions.

Recommendation B: currently in the muni codesection 2.17.043 Timely Response; and the Council Procedures Manual Section 6.6
Councilmember Access to Information.

Recommendation C: City Council ProcedureManual adopted in February 2023 and reviewed/updated in March 2024 (Resolution No.
24‐024) addresses Council‐staff relations. City
Council Training Session 1/12/24 and CouncilGovernance Workshop 11/14/23.

The City Council onboarding and orientationprocess has recently been updated to increase itseffectiveness. This process could be further strengthened by focusing additional attention onroles, responsibilities, and practical application of guidelines.

Take steps to expand and strengthen the orientation process for new Council members.

Yes. City staff prepared a more in‐depth onboarding
process as part of the onboarding of Council
members in 2023. Staff will continue to review this
process and make changes as necessary.

Ongoing Implemented after 2022 election; conducted full 2‐day orientation in 12/13/22 for incoming and
sitting Councilmembers.

The City has established many best practiceelements of a comprehensive ethics program.

However, there are gaps in the City’s complianceenforcement.

Strengthen internal processes for tracking and holding elected and appointed individuals accountable to timely completion of Form 700 Disclosures.

Yes. City staff will work toward strengthening the
internal process for tracking and holding elected
and appointed individuals accountable.

Completed Revised Ethics Code adopted in November 2023; Resolution No. 24‐022 Governing Recruitment ofAdvisory Bodies which mandates legally requiredtraining or reporting requirements.

A core function of any governing body is to set and
monitor the strategic direction of the organization.

While the City Council has adopted a two‐year
Work Program to prioritize annual initiatives, it has
not yet developed a long‐range strategic plan.

A. Consider developing a long‐range strategic plan to increase the City’s ability to strategically plan and advance initiatives.

B. Continue current efforts to utilize and refine the annual Work Program prioritization practice.C. Consider expanding the City’s reporting processes to more effectively track progress toward strategic goals over time
Yes. The City will explore creating a long‐range
strategic plan and continue current efforts on the
work plan.

In progress City Manager's Office will lead the council prioritization workshop in early 2025. This will
provide an opportunity for Council to revisit
strategic goals. Following this, the City Manager's
Office will engage with the Council to develop a
long‐term strategic plan for the City and a
mechanism to track progress.

As of 9/6/2023 Update as of 6/2024
2023 Enterprise Leadership Assessment
7/24/2023 9/6/2023
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Audit ReportReceived by
City Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree? Status Completion Date/ Estimated Completion Date
As of 9/6/2023 Update as of 6/2024
2023 Enterprise Leadership Assessment
While the City has established some strongcommunity engagement practices, intervieweesnoted that Council members may have anoverreliance on anecdotal evidence and/or public comment that may not be representative of the
wider community perspective.

A. Consider setting clearer expectations for the intended scope of communityengagement at the start of City initiatives.

B. Continue current efforts to implement a statistically significant, representative community survey.

C. Consider providing media and crisis communication training to all Council members.

Yes. As recommended in the report on compliancewith the recommendations in the May 2023 FactFinding Report, Council may consider additional procedural measures to attempt to focus
Councilmembers on their policy and decision‐
making responsibilities, as well as considering
procedural provisions or improvements to public
engagement processes to ensure community
engagement is more representative. In addition,
staff will be conducting a community survey in latefall/early winter timeframe.

In progress City Manager's Office to lead the development of community engagement standards for
departments to follow. This is underway through
the Citywide Communications Group. City
Manager's Office to explore conducting a
community survey within the next 6‐12 months.

Media training was provided to all council
members and the executive team in November2023.

The City utilizes multiple commissions and
committees to support Council decision‐making.

There are opportunities to increase the
effectiveness of some of these groups.

A. Establish charters, including clear roles and responsibilities, for each commission and committee that outline the group’s purpose and member roles and responsibilities.B. Review additional opportunities to streamline governance groups.

C. Consider reviewing the names of governance groups to introduce a consistent naming convention for commission versus committee.

Yes. City staff will bring recommendations regardingcommissions and committees to increase their effectiveness.

In progress Revisions to Commissioners' Handbook and
updates to commissioner appointment process
adopted in March 2024; A. Resolution No. 24‐022
Governing Recruitment of Advisory Bodies and
2024 Commissioners’ Handbook. (Resolution No.
24‐023)
The City has documented processes to select and
appoint community members to governance
groups. This process could be strengthened by
adding relevant qualification criteria.

Review and establish the qualification criteria for each commission and committee member to determine if the City would benefit from adjustments Yes In progress Per Council direction in March 2024, City Manager's Office to develop qualifications
criteria for commission appointments, consistentwith March 2024 policy changes.

Commission and committee operations including
onboarding, meeting procedures, work plans, and
reporting—are not always consistent or effective
A. Continue efforts to expand and formalize onboarding and training expectations for both commissions and committees.

B. Clarify the process and expectation for cancelling unnecessary meetings.

C. Consider adopting the practice of requiring annual work plans for each commission and committee
Management agrees with the observation andrecommendations A and B and will continue efforts were recommended and work toward clarifying
meeting cancellation procedures.City staff does not agree with (recommendation C)that adopting annual work plan for the committees and commissions would be effective. As previously
the City did have this process and it led to confusion
and misalignment with the Council workplan.

Ongoing Recommendation A: 2024 Commissioners’
Handbook (Resolution No. 24‐023) page 5
Quorum, Attendance, training, and reporting.

Recommendation B: 2024 Commissioners’
Handbook (Resolution No. 24‐023) page 6
Regular Meetings cancellation provision.

The staff time used to support governance groups
represents a significant investment of Cityresources.

A. Review the practice of requesting department directors attend commission and committee meetings.

B. Provide training for staff liaisons annually and when a new individual takes on the liaison role.

Department directors play a critical role in the
function of their department and necessarily need
to understand the recommendations ofCommissions and Committees on department functions.Staff agrees with recommendation B (added for clarity as it was not clearly identified in the original staff report).

In progress Implemented annual/semiannual training for
staff liaisons conducted by the City Clerk/CityAttorney/City Manager. 7/24/2023 9/6/2023
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Audit Report
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Audit ReportReceived by
City Council
Moss Adams Observations Moss Adams Recommendations Did the City Agree? Status Completion Date/ Estimated Completion Date
As of 9/6/2023 Update as of 6/2024
2023 Enterprise Leadership Assessment
7/24/2023 9/6/2023 City staff continue to experience a high degree of organizational change and uncertainty. Within thiscontext, it is critical for the City’s management team to provide active communication and change
management to increase support of staff.

Identify and implement expanded communication and change management practices to improve workplace culture
Yes. Management will begin discussions on
strategies for active communication and change
management as part of the Department Head
retreat on August 30, 2023.

Ongoing Implemented with quarterly all employee town
halls with CM. Leadership Team meets every
month for strategic conversations aroundorganizational development and communication.DCM and department heads are meeting with department staff on a regular basis. Citywide
employee appreciation events have been
planned and executed. HR is bringing mid‐
managers together each quarter.
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Audit Report
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Moss Adams Observations Moss Adams Recommendations Did the City Agree?
Status Completion Date/
Estimated Completion Date
Questioned Non‐Compliant Change Order, ForemanRate
The City should implement change order management controls to prevent charging change order labor rates in excess of contractually allowable amounts, as required by the Contract terms. The City should consider seeking credit for excess labor charges.

Yes Completed The City implemented change order
cost management controls that align
with the City’s assessment of risk.September 2023.

Contract Compliance – Excessive Change OrderMarkups
The City should review change order management controls and associated contract language to preventincurring excessive fee markups. The City should consider whether it is worthwhile to pursue cost recovery of markups associated with the PCOs identified.

No City not in
agreement
The change orders expenses were inalignment with the agreementbetween the contractor and the Cityand thus no additional exchange offunds is warranted.

Contract Compliance – Skilled Labor Documentation
Control
The design build entity should implement billing controls to ensure adequate skilled labor documentation, as required by the Contract terms. For example, the City should ensure that all Skilled and Trained Workforce documentation is consistently reported in the monthly application for payment with the appropriate level of detail required to ensure compliance with Public Contract Code. Compliance with this requirement should betracked by the City and Project Management for compliance.

Yes Completed Compliance with California
Department of Industrial Relations
requirements lies with the designbuild entity. CIP has implementedthe practice of requesting/filing themonthly certified payroll throughoutthe life of the project to confirmcompliance. (ongoing item) Contract Compliance – Select payment applicationsreviewed were not fully executed The design build entity should implement billing controls to ensure adequate sign‐offs, as required by the Contract terms. The City and its project managers should require the design build entity to fully execute all payment applications prior to submission.

Yes Completed All payment applications are fully
executed with signatures by
Construction Manager and City
(Capital Improvement ProgramManager or Director of PublicWorks). (ongoing item) Contract Compliance – Inadequate Conditional
Waiver Controls
As a best practice and consistent with contractual language, the design build entity should obtain and provide to the City conditional waivers from each subcontractor and material supplier once payment is made to supportthe City ensuring all parties are being paid timely and there are payment issues which may be an indicator of performance issues. At the end of a subcontractor’s work, or at the Project’s completion, conditional waivers for all subcontractors should be obtained to validate full payment for performance of the Contract and mitigate potential exposures for the City. Additionally, the City should consider updating policies and procedures to develop a methodology with project management personnel to determine which subcontractors are required toprovide conditional waivers based on initial subcontracting plan including attributes such as contract size and or scope complexity.

Yes Completed As part of CIP's payment approval
procedure, CIP requests conditionalwaiver releases and final waiverreleases throughout the paymentprocess. (ongoing item) Contract Compliance – Flow Down ContractProvisions Not Included in Subcontracts The City should consider implementing contract administration controls to ensure flow down contract provisions, are included within contracts, as required by the Contract terms. For example, the City should request a copy of a typical subcontract agreement template ahead of the design build entity’s buyout process to confirm compliance with flow down requirements.

Yes Completed As part of CIP procedures, City
requests a copy of design build
entity's typical subcontract
agreement template to confirmcompliance with flow downrequirements. (ongoing item) Contract Compliance Self‐Performed Work ChangeOrder Delivery Method The City should evaluate the time and materials and allowance use within the change orders identified for cost substantiation and reasonableness as required by the Contract. The City should consider developing change order forms and update as needed to include information such as change type (e.g., cost plus not to exceed, time and materials, lump sum, unit price, etc.), itemized change amounts, percentages, descriptions, changeresponsibilities, schedule impacts, dates of approval, subtotals, and totals to enhance internal change ordercontrols and to support contract compliance.

Yes Completed The City implemented change order
cost management controlprocedures that align with the City’s assessment of risk. September 2023.

Contract Compliance – Drawing Rights SecuredConfirmation The City should consider including more specific contract language regarding the right of use and ensuring that all parties involved in the Project’s design understand their responsibilities regarding their design documents. If deemed necessary at this point in the Project, the City should request that the design build entity obtain the necessary documentation from its subcontractors and subconsultants to secure the rights of use for the City.

No City not in
agreement
Section 2.3(D) of the General
Conditions broadly confers that allownership rights, includingcopyrights and possessory rights, in the Design Documents as well asadditional documents accrue to the City.

Contract Compliance – Incorrect PaymentApplication Calculations Billing controls should be implemented to ensure accurate calculations within payment application submissions, as required by the Contract terms payment applications with material calculation errors should be revised prior to finalization and processing to avoid overbillings and overpayment.

Yes Completed The City implemented cost
management controls that align withthe City’s assessment of risk.September 2023. 2023 Library Expansion Construction Audit
This Capital Improvement Project was a design build project which is not a typical approach for the City.

As of 5/16/2023 Update as of 6/2024
4/24/2023 5/16/2023
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CITY OF CUPERTINO
Agenda Item
24-13171 Agenda Date: 7/2/2024
Agenda #: 6.

Subject: Bridge Preventative Maintenance Program construction contract.

1. Award a construction contract for the Bridge Preventative Maintenance Program in the amount of $1,647,475 with American Civil Constructors West Coast LLC.;

2. Authorize the City Manager to execute the construction contract;

3. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $164,750 (10%) for a total contract amount of $1,812,225; and

CITY OF CUPERTINO Page 1 of 1 Printed on 6/26/2024
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CITY COUNCIL STAFF REPORT
Meeting: July 2, 2024
Subject
Bridge Preventative Maintenance Program construction contract.

Recommended Action

1. Award a construction contract for the Bridge Preventative Maintenance Program for $1,647,475 with American Civil Constructors West Coast LLC.;

2. Authorize the City Manager to execute the construction contract;

3. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $164,750 (10%) for a total contract amount of $1,812,225; and

4. Adopt Resolution No. 24-XXX approving budget modification #2425-347, approving an appropriation of $300,000 in the Transportation Fund (270) for the project (budget unit 270-90-960) and a transfer of $300,000 from the Capital Reserve Fund (429) to the Transportation Fund (270).

Reasons for Recommendation
The City of Cupertino advertised the Bridge Preventative Maintenance Program (BPMP) from May 2 to June 11 for a public bid on the following bridge maintenance activities:
 McClellan Road and Homestead Road over Stevens Creek
 Stevens Creek Boulevard over Calabazas Creek
 Vallco Parkway over Calabazas Creek
 Miller Avenue over Calabazas Creek
 Tantau Avenue over Calabazas Creek
One sole response was received from American Civil Constructors West Coast for an estimated contract amount of $1,812,225 (including 10% contingency).

The Public Works Department reviewed American Civil Constructors West Coast LLC‘s proposal for completeness, confirmed the contractor’s experience, and determined them to be qualified. Therefore, staff recommends awarding a construction contract to American Civil Constructors West Coast LLC for the contract amount of $1,647,475, and a 10% construction contingency for $164,750 for a total contract amount not to exceed 141
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$1,812,225. A construction contingency allows for unforeseen conditions and is a typical contracting best practice.

Even though there was only one response from the recent Request for Proposal (RFP), this is the second time that the project has been bid. The City initially advertised the project in May 2023, received a sole bid for the work that totaled $1,884,000, and rejected the bid as it exceeded the project budget by $447,785. Due to the high cost of the project, the City made minor revisions to the project scope to reduce the cost slightly and recirculated the second RFP. Staff has also requested additional funding through Caltrans Local Assistance (Caltrans) to help offset the outstanding portion of the project cost. As a result of this request, Caltrans has tentatively agreed to provide additional support.

Given the complexity of the project scope, the project has exceeded the original estimates due to the protracted schedule. The timeline for the project has been impacted by numerous events. In Fiscal Year (FY) 2015, an amount of $165,000 was allocated to enable the City to prepare initial design efforts. This information allowed the City to be eligible for additional federal grant funding through Caltrans’ administration. The notification of grant funding being allocated to the project was received in September 2016. Based on the estimated final design and construction costs of the project, as well as the grant funds that were allocated, the Council allocated an additional $535,000 in FY 17 from the capital reserve to complete the project. A total amount of $700,000 was allocated for this project while staff proceeded to finalize the design and awaited the grant funds from Caltrans.

However, the City did not receive an award of the grant funds until May 2023, this long timeline is partially due to the nature of federal grants as well as the impacts caused by COVID. Once awarded, the City initiated the first RFP for the project. Due to the results of this first RFP being considerably higher than the funds that were budgeted, the City reached out to Caltrans to request an additional funding consideration.

With the unforeseen extension to the originally proposed construction timeline, estimated construction costs have increased significantly, therefore, staff requests an additional $300,000 be allocated from the Capital Reserve Fund to complete the project.

A draft construction contract is included as Attachment A, while the full project specifications can be found on the City’s “Business Opportunities” website and https://apps.cupertino.org/bidmanagement/index.aspx. Construction is expected to begin in August 2024 and be completed by the end of the calendar year.

Sustainability Impact
The recommended improvements are intended to prolong the useful life of the bridges which will enable critical infrastructure to withstand climate driven natural disasters. 142
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Fiscal Impact
Accounting for the current expenses and encumbrances, a budget modification and transfer of $300,000 from the Capital Reserve Fund (429) to the Capital Improvement Fund (420) is required to address the funding shortfall.

The total current budget for this project is $1,844,472, based on bids received this budget would need an additional $300,000 as requested in the budget modification. Bringing the total budgeted amount for this project to $2,144,472.

Current Fiscal Summary
Active project since Fiscal Year (FY) 2015
Current Funding Status Amount
City Approved Funds (FY15 and FY17) $700,000
Federal Grant Funds awarded in 2023 (FHWA
Highway Bridge Program) $1,144,472 1
Subtotal (budget unit 270-90-960) $1,844,472
Proposed Funding Impact Amount
Expenses to Date (includes design and
environmental review and permitting) ($218,900)
Construction Management (projected/estimate) ($106,500) Bid Amount with 10% contingency (this
agreement) ($1,812,225)
Subtotal ($2,137,625)
Summary Amount
Current Funding Status (budget unit 270-90-960) $1,844,472 Proposed Funding Impact ($2,137,625)
Total Deficiency ($293,153)
Budget Modification Requested: $300,000
1 CalTrans has tentatively agreed to an additional $95,228 in grant funding for the project that could be awarded before the end of 2024.

California Environmental Quality Act (CEQA)
This project is exempt from CEQA under 14 C.C.R Sections 15301(c), repair and maintenance of existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities.
_____________________________________
Prepared by: Suyesh Shrestha, Public Works Project Manager 143
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Reviewed by: Chad Mosley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Contract
B – Draft Resolution
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Bridge Preventive Maintenance Program CONTRACT
Federal Project ID: 5318 (029) Page 1
Contract
This public works contract (“Contract”) is entered into by and between the City of Cupertino (“City”) and American Civil Constructors West Coast LLC (“Contractor”), for work on the Bridge Preventive Maintenance Program Project (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On July 2, 2024, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below. City has elected to include the following Project alternate(s) in the Contract: no alternates.

2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.

2.1 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda,

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Specifications;

2.10 Change Orders, if any;

2.11 Notice of Potential Award;

2.12 Notice to Proceed; and

3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $1,647,475.00 (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.

5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within 115 calendar days from the start date set forth in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $3,600.00 per day for each day of unexcused delay in achieving

ATTACHMENT A

DRAFT CONTRACT
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Bridge Preventive Maintenance Program CONTRACT
Federal Project ID: 5318 (029) Page 2
Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.

7. Labor Code Compliance.

7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.

7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.

7.3 DIR Registration. City may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.

8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”

9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.

10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.

11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:

City:

Public Works
10300 Torre Avenue
Cupertino, CA 95014
Attn: Suyesh Shrestha
[email protected]
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Bridge Preventive Maintenance Program CONTRACT
Federal Project ID: 5318 (029) Page 3
Copy to:

Susan Michael, CIP Manager
[email protected]
Contractor:

American Civil Constructors West Coast LLC
2990 Bay Vista Court, Suite D
Benicia, CA 94510
(707) 746-8028
Email: [email protected]

12. General Provisions.

12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.

12.2 Third Party Beneficiaries. There are no intended third-party beneficiaries to this Contract.

12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Santa Clara County Superior Court, and no other place.

Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.

12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.

12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.

12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.

12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code § 313. [Signatures are on the following page.]
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Bridge Preventive Maintenance Program CONTRACT
Federal Project ID: 5318 (029) Page 4
The parties agree to this Contract as witnessed by the signatures below:

CITY: Approved as to form:
s/_______________________________ s/__________________________________ ________________________________ ___________________________________ Name, Title Name, Title
Date: ___________________________ Date: ______________________________

Attest:
s/_______________________________
_________________________________
Name, Title
Date: ___________________________
CONTRACTOR: ___________________________________________________ Business Name
s/_______________________________ Seal:
_________________________________
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
_________________________________
Name, Title
Date: ____________________________
___________________________________________________
Contractor’s California License Number(s) and Expiration Date(s)

END OF CONTRACT
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Attachment B
RESOLUTION NO. ________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A BUDGET MODIFICATION AND TRANSFER OF $300,000

FROM THE CAPITAL RESERVE FUND TO THE BRIDGE PREVENTATTIVE

MAINTENANCE PROGRAM PROJECT FUND
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects, and programs and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed transfer appropriations, and therefore recommends the fund reallocations described herein; and
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund transfer and ratifies the attached amended appropriations as set forth in Exhibit A.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 2nd day of July 2024, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Sheila Mohan, Mayor
________________________
Date
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Resolution No. __________________
City of Cupertino
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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Resolution No. __________________

EXHIBIT A
Appropriation Amendment
by Fund
Revenue Appropriations Fund Balance
(Use of)
429 Capital Reserve $0 $300,000 ($300,000)
270 Bridge Preventive
Maintenance Project
$300,000 $300,000 $0
TOTAL $300,000 $600,000 ($300,000)
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CITY OF CUPERTINO
Agenda Item
24-13102 Agenda Date: 7/2/2024
Agenda #: 7.

Subject: Municipal Code Text, Specific Plan, Below Market Rate Mitigation Manual and Zoning Map Amendments related to implementing the 6th Cycle Housing Element (Application No.(s): MCA-2023 -001, SPA-2023-001, CP-2024-002, Z-2024-001, EA-2024-001; Applicant: City of Cupertino; Location:
city-wide)
That the City Council take the following actions for consistency with the 6th Cycle Housing Element, and minor edits for clarity and compliance with State law, as follows:

Presenters: Luke Connolly, Assistant Director of Community Development and Piu Ghosh, Planning Manager
CITY OF CUPERTINO Page 1 of 1 Printed on 6/26/2024
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CITY COUNCIL STAFF REPORT
Meeting: July 2, 2024
Subject
Municipal Code Text, Specific Plan, Below Market Rate Mitigation Manual and Zoning Map Amendments related to implementing the 6th Cycle Housing Element (Application No.(s): MCA-2023-001, SPA-2023-001, CP-2024-002, Z-2024-001, EA-2024-001; Applicant:

City of Cupertino; Location: city-wide)
Recommended Action
That the City Council take the following actions for consistency with the 6th Cycle Housing Element, and minor edits for clarity and compliance with State law, as follows:

1. Conduct the first reading of Ordinance No. _______ “An Ordinance of the City Council of the City Of Cupertino Amending Various Chapters in Title 14, Title 17 And Title 19, Including But Not limited to the Addition of Three New Chapters in Title 19, to Implement Policies in the General Plan and for Clarity” (Attachment A) as further described in the staff report; and

2. Adopt Resolution No. ______ approving amendments to the Heart of the City Specific Plan and the Below Market Rate Housing Mitigation Manual to allow implementation of the Housing Element and meet the requirements of State Law (Attachment B): and

3. Conduct the first reading of Ordinance No. ____ “An Ordinance of the City Council of the City of Cupertino Rezoning Certain Sites in the City for Conformance with General Plan and Housing Element” (Attachment C) to reflect changes to Priority Housing Sites and other minor changes for internal consistency.

Background
The City Council adopted the 6th Cycle Housing Element,1 which covers the planning period of 2023 to 2031, on May 14, 2024. The Housing Element is a required element of Cupertino’s General Plan and identifies policies and programs and prospective housing sites to meet the housing needs of the City’s current and future residents at all income levels, through 2031. The 6th Cycle Housing Element anticipates that Cupertino will

1 Prior iterations of the Draft Housing Element are available online at www.cupertino.org/housingelement
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 2 accommodate its Regional Housing Needs Allocation (RHNA) of 4,588 units plus a buffer of approximately 28%, for a total exceeding 5,800 units, on 58 parcels, referred to as Priority Housing Sites. The Priority Housing Sites are located primarily along the City’s arterials and major collectors, such as Stevens Creek and DeAnza Boulevards, with a few sites located within established, predominantly single-family neighborhoods (e.g. the Evulich Ct/Linda Vista and Adriana Avenue sites). Over two-thirds of the Priority Housing Sites - 40 properties - have densities of 50 units per acre or more and 15 have densities between 20-35 units per acre, indicative of the transition from a suburban to a more urban community. Only three of the 58 sites allow densities under 20 units per acre.

The complete list of Priority Housing Sites is included in Appendix B-4 of the General Plan.

On April 10, 2024, the State of California’s Department of Housing and Community Development (HCD) informed the City2that the draft Housing Element submitted to HCD on March 28 (prior to adoption), met the statutory requirements of state law, subject to the completion of rezoning of the sites that are listed in the Housing Element as Priority Housing Sites. Therefore, the actions taken by the City to rezone the Priority Housing Sites and the associated amendments to the Municipal Code, Heart of the City Specific Plan, and the BMR Mitigation Manual will bring the City into compliance with state law. Compliance with state housing law averts the City’s potential loss of land use local control, exposure to litigation, and other regulatory limitations resulting from not having a compliant Housing Element. The rezoning and related actions also ensures internal consistency between policy documents and a seamless implementation of the policies in the Housing Element. Even though the City adopted its Housing Element on May 14, the rezoning of Priority Housing Sites at the densities specified in the Housing Element must be completed in order to come into compliance with state law.

The proposed zoning amendments and development standards have been developed through review of neighboring jurisdiction regulations, consultant advice, input from the community at two workshops, and input from housing developers at a focus group in Fall 2023. The workshops included visual preference surveys, input from community members in both an in-person and virtual format. The focus group was in a virtual environment at which, both not-for-profit and for-profit, developers participated, sharing their perspectives and providing recommendations.

The Planning Commission reviewed the proposed changes at its June 11, 2024 regular meeting. Their recommendations and review, in addition to a description of the new standards and changes to existing standards, is discussed in the report below.

2 Available online: www.cupertino.org/housingelement
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 3 Discussion
Municipal Code Amendments (see Attachment A)
New Chapters
 Chapter 19.38 (Multiple-family Residential (R-4) Zones): Nearly 70% of the 58 parcels that comprise the Housing Priority Sites have a minimum density of 50 units per acre. This increased density required the establishment of new General Plan land use designations (i.e., “High/Very High” and “Very High” density) for residential densities greater than 35 dwelling units per acre. These new land use designations were adopted by the City Council on May 14 as part of the Housing Element adoption.

The establishment of new General Plan land use designations for residential development greater than 35 dwelling units per acre has in turn necessitated the establishment of a new zoning designation, R-4, to accommodate development at these higher densities.

R-4 zoned properties would allow buildings up to 5 stories tall, with a maximum height of 70 feet, in accordance with the May 2024 General Plan updates. The City’s General Plan establishes a setback to height ratio (slope line) for properties that abut an arterial (e.g. De Anza and Stevens Creek Boulevards). The General Plan amendments, adopted in conjunction with the adoption of the Housing Element, modified this standard so that proposed housing development projects on Priority Housing Sites do not have to meet the slope line requirement. However, new projects will still have to meet front, rear and side building setbacks as established in the ordinance. Since many of the parcels being zoned R-4 are located along major corridors, the front setback standard is designed to meet the standards adopted in the Heart of the City Specific Plan and other land use plans (e.g. South SaratogaSunnyvale Conceptual Zoning Plan) adopted by the City. Additionally, as identified in the Housing Element, the standards establish certain universal design standards that must be incorporated in residential projects to affirmatively further fair housing for people of all ages and abilities. Finally, standards are identified for the maintenance of common open spaces and landscaping.
 Chapter 19.46 – Townhome (TH) Combining District: As described in the recently adopted Housing Element, in order to accommodate a variety of housing types on the same property and to encourage the provision of a buffer for existing single-family homes/neighborhoods, some Priority Housing Sites are zoned with the TH Combining District. Historically, the Planned Development (P) zoning district used to act as a combining zoning designation. However, with recent changes to state law requiring the establishment and application of objective standards in housing developments, the Townhome (TH) Combining District is being proposed. A combining district is one that may only be used in conjunction with a base zoning 155
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 4 district designation, to provide flexibility in development standards and compatibility with existing development. As proposed, the TH combining District may only be used in conjunction with either the R-3 or R-4 base zoning district designations.

The TH combining district allows for the same front setbacks as the underlying R-3 or R-4 zoning it is combined with. Therefore, proposed development projects will meet the front setback standards of the R-3 or R-4 zoning district that the TH designation is combined with, for purposes of urban streetscape consistency. In addition, rear and side yard setbacks are established to ensure adequate safety requirements are met and a more gradual transition scale occurs between existing neighborhoods and the higher density development anticipated for the Priority Housing Sites. A few basic design standards are also included as part of the zoning, such as requiring front stoops and entry features facing streets. Private open spaces are required in accordance with the underlying R-3 or R-4 zoning for all properties within the TH Combined District.  Chapter 19.50 – Emergency Shelters: State law (AB 2339) requires the City to allow emergency shelters by right in at least one zoning district. In order to comply with state requirements, existing standards have been consolidated and new standards have been established through inclusion of a new Municipal Code chapter, Chapter

19.50, to allow ministerial review of such facilities, should they be proposed.

Amendments to existing Chapters (see Attachment A)
In order to ensure consistency with state law and the City’s adopted Housing Element, changes have been made to various chapters of Title 19 of the Municipal Code, as follows:
 Chapter 19.08 (Definitions): Amendments have been made to ensure consistency with state law and to assist with objective application of standards, new definitions or modified definitions have been added for various types of housing addressed by state law that are required to be permitted by the City within certain zoning districts – whether by right (e.g. residential care facilities) or via a discretionary permitting process (e.g. Single Room Occupancy – allowed with CUP in R-4 zoning districts).  Chapter 19.12 (Administration): A minor edit has been made to consolidate requirements and to codify a specific development review process required pursuant to state law (Govt. Code Section 65589.5), for certain projects, identified below. This specific language was presented to HCD staff for their review and HCD has indicated that the proposed language, as written, is acceptable and complies with state housing law:
 Residential projects proposed on Priority Housing Sites at a minimum density of 20 dwelling units/acre (or if a higher minimum density is required in the General Plan) with a minimum of 20% of the total number of units in the development affordable to lower income households.
 Low barrier navigation centers and supportive housing with up to 50 units/beds. 156
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 5  Chapter 19.16 (Designations and Establishment of Districts): Amendments have been made establish the new R-4 Residential Zoning District and TH (Townhome) Combining District.
 Chapter 19.20 (Permitted, Conditional and Excluded uses in Agricultural and Residential Zones) and Chapter 19.76 (Public Building (BA), Quasi-Public Building (BQ), and Transportation (T) Zones): Changes have been made to comply with state law, for internal consistency and clarity related to the establishment of standards for emergency shelters.
 Chapter 19.28 (Single Family Residential (R-1) Zones): Amendments have been made to allow duplexes on corner lots and lots abutting commercial corridors in certain R-1 zoned areas in compliance with Housing Element Strategy HE-1.3.6 (i.e., “missing middle” housing strategy). This would allow the development of up to 2 primary units and 2 accessory dwelling units on these lots, for a maximum of 4 units, through approval of an Administrative Conditional Use Permit. No currently R-1 zoned properties anywhere in the City are proposed to be rezoned through this Code change.
 Chapter 19.32 (Multiple-family Residential (R-3) Zones): This chapter has been restructured to address the range of densities and use types that this zoning district applies to – ranging from fourplexes (large single-family house size) to large apartment complexes. No significant changes are proposed for fourplex or similar small-scale developments. However, amendments are proposed to better accommodate mid- and larger-scale apartment developments, allowing for additional building height for certain Priority Housing Sites, amended side and rear setbacks, and private open space requirements which align with Heart of the City requirements, since many of the sites are located along transportation corridors. Additionally, similar to the R-4 zoning district, universal design standards have been incorporated into the development standards. Existing language in the Municipal Code regarding maintenance of common open areas, homeowners’ associations and conditions, covenants and restrictions has been added to this Chapter to ensure these areas are maintained.
 Chapter 19.80 (Planned Development (P) Zones): Changes have been made for internal consistency due to the establishment of the Multiple Family Residential (R-4) and the Combining Townhome (TH) zoning districts, and consistency with state law regarding permitted uses in the P zoning district.
 Chapter 19.124 (Parking): Amendments have been made to lower the required parking requirements in the R-3 zoning district and establish parking standards for Emergency Shelters and for the new R-4 and TH zoning districts. It should be noted that a recent change to state law does not allow the City to require parking within 157
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 6 Transit Priority Areas, defined as properties within ½ mile of major transit stops (AB2097, Friedman)3, 4. At present, there are five existing and planned major transit stops, by Bay Area Metro, covering most of the area along Stevens Creek Boulevard east of Highway 85.
 Chapter 19.156 (Development Permits, Conditional Use Permits and Variances): Edits have been made to implement a commitment in the Housing Element identified by HCD related to findings for housing developments. This change makes the findings required to approve housing development projects more objective.  Chapter 19.168 (Architectural and Site Approval): Changes have been made to adopt findings necessary to approve housing development projects that are required to be reviewed pursuant to the by-right process of state law for certain housing developments with a minimum density of 20 units/acre and 20% affordable units for lower income households on Priority Housing Sites.

In addition to the proposed edits in Title 19, edits are also proposed to Chapter 14.15 (Landscape Ordinance), for internal consistency, and to allow implementation of the water efficient landscape requirements for Townhome developments and a minor edit is proposed to Chapter 17.08 (Standard Environmental Protection Requirements) to correct an error.

Specific Plan Amendments
Proposed amendments to the Heart of the City Specific Plan are limited solely to text and map edits necessary for consistency with the required rezoning for Priority Housing Sites (see Attachment B).

Below Market Rate (BMR) Housing Mitigation Manual
Amendments to the BMR Housing Mitigation Manual are solely to update the BMR program to be consistent with the recently adopted Housing Element. The BMR program would be amended to require that the threshold at which an in-lieu of fee is paid would be reduced from six units to four units. Therefore, new residential projects consisting of five or more units would have to provide BMR units in their proposed developments. (See Attachment B).

Zoning Map Amendment
Amendments are proposed to maintain internal consistency between the General Plan Land Use Map and the Zoning Map and to reflect the zoning for the Priority Housing Sites. The Priority Housing Sites are also labeled on the map for ease of identification.

3 Online at: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2097. 4 Major transit stops are defined in state law. See online at: Transit Priority Areas (2021) | Transit Priority Areas (2021) | Metropolitan Transportation Commission (ca.gov) 158
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 7 Other minor edits have been made to the various colors and labels on the map for improved clarification and consistency, which do not change applicable development standards or zoning for any properties (See Attachment C).

Planning Commission Review and Recommendation
On June 11, 2024, the Planning Commission reviewed the proposed amendments to the Municipal Code, Heart of the City Specific Plan, BMR Housing Mitigation Manual and the Zoning Map. The Planning Commission did not make a recommendation related to the Municipal Code Text Amendments and adopted Resolution No. 24-XXX and 24-XXX recommending adoption of the amendments to the Heart of the City Specific Plan, BMR Housing Mitigation Manual and the Zoning Map, both with a 4-0 vote (Fung absent).

The following topics were a part of the motions that failed to pass as they relate to the Municipal Code Amendments. Staff’s comments are in italics following the topic.

1. Townhome (TH) Combining District
a. Height: Increase height limit to 35 feet. There was no consensus on this item at the Planning Commission. Two of the commissioners were not agreeable to this change and wished to retain the staff’s recommendation. No changes have been made to staff’s recommendation for the following reasons. The General Plan actions taken by Council in May 2024 established the heights allowed on various properties. Many of the sites that allow the TH combining district are located within and/or abut single-family neighborhoods. In order to allow structures that are compatible with the adjoining lowerdensity residential developments and to retain compliance with the General Plan, staff recommended a height limitation of 30 feet for townhomes. Townhomes with lower plate heights (reducing the mass of the structures) could be designed to fit within the proposed height limits and/or affordable housing units may be provided to utilize State Density Bonus law in order to waive this development standard.
b. Lot Coverage and Floor Area Ratio (FAR): Eliminate lot coverage as a development standard and increase FAR to 100% or more. There was no consensus on this item. Two of the commissioners were not agreeable to this change and wished to retain the staff’s recommendation. Staff is recommending retaining the proposed lot coverage standard and increasing the FAR standard to 85% for the following reasons.
 Eliminating the lot coverage standard could allow developments to occur with limited areas for landscaping. This would be contrary to many of the City’s policies related to urban heat island effect, sustainability, and maintaining an urban tree canopy. Staff recommends retaining the lot coverage standard to ensure that there continue to be opportunities to plant trees that can attain a substantial stature at maturity and will be in a more appropriate scale for projects that are more urban in nature. 159
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 8  Increasing the FAR to 100% or more would allow substantially larger homes to be built in the TH combining district. While compatible, townhomes are distinct from singlefamily homes by offering a smaller, more affordable home ownership option. At 100% FAR, these units could be larger than homes permitted in the R1-5 single-family zoning district. Having a 80-90% FAR would allow a mix of unit sizes which would be more of a typical townhome scale than allowing a 100-110% FAR. As such, staff recommends an 85% FAR. This change has been incorporated into Attachment A. c. Corrections and Minor Revisions to Section 19.46.040, 19.46.060 and 19.46.070:

Corrections and minor revisions proposed by a developer. These changes have already been incorporated in Attachment A.

2. Single Family (R1) Zones: Duplex Developments:
a. Front setback in R1-a zones for duplex developments: Require a front setback of 30 feet to match the setback required per the underlying zoning district. There was general consensus from the Commissioners on this item. This change has already been incorporated in Attachment A. An amendment has also been made to require the front setback of the underlying zoning to be required in all R-1 zones. For example, in some parts of the City, a 25-foot front setback is required. This amendment would ensure that front setbacks in all zoning districts are maintained.
b. “Rental”: Eliminate the word “rental” from this section. There was general consensus on this change from the Commissioners. This change has already been incorporated in Attachment A.
c. Parking requirements: Change the parking standards for duplexes built in the R-1 zoning district consistent with Housing Element Strategy HE-1.3.6 (“missing middle”) from 1.5 spaces enclosed (i.e., garage) and 1.5 spaces open per unit (for a total of 6 spaces) to 1 enclosed space and 1 open space per unit (for a total of 4 spaces). There was no consensus on this item. Two of the commissioners were not agreeable to this change and wished to make no changes to the parking standards for duplex development. No changes have been made. If desired, the Council could amend Section 19.124.040(A) to allow 4 spaces total for duplexes constructed in the R-1 zoning district. This would be consistent with the parking standard for single-family homes, where 4 spaces are required.

The following is a list of other items discussed by the Planning Commission that were not made as part of the motions voted on:

1. R-4 Zoning District: Number of stories: Eliminate the number of stories allowed, five, to provide flexibility in construction within a 70-foot maximum building height standard. There was no consensus from the Commission on this item in their discussion and this was not part of any of the motions considered by the Commission. 160
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 9 No changes have been made on this issue. Staff’s recommendation on allowing 5- story structures (within 70 feet) is based on construction types, building forms, activation of the ground floor, visual preference studies that occurred as part of the outreach in Fall 2023, and feedback from the focus group with developers. If desired, the Council could amend Section

19.38.070(B) to eliminate the 5-story limitation to simplify the standard and allow greater flexibility in development.

2. Definitions: Duplex: A question was asked about the proposed 200 square-foot difference standard to define “comparable” sized units. There was minimal discussion on this item, no consensus from the Commission on this item in their discussion, and this was not part of any of the motions considered by the Commission.

The existing definition of a duplex defines them as developments with attached or detached primary units of “comparable size,” which is a subjective standard, and unenforceable under the Housing Accountability Act (HAA). The proposed 200 square-foot standard is an objective standard to define “comparable” sized units, which would allow one of the two units to be larger by approximately one-bedroom and one-bathroom. However, incorporating the 200 square-foot standard into the definition of duplex may create legal non-conforming structures within the R-2 district. Without any objective standard there is the potential that Strategy HE1.3.6 (Missing Middle) will result in the development of very large single-family homes with attached ADUs, which is already allowed in the R-1 zoning district rather than units that are more comparable to each other and affordable. No changes were made to Attachment A related to this. If desired, the Council could eliminate this proposed standard in Section 19.08.030.

3. R-1 zoning district: Duplex Developments: FAR standard proposed in Chapter 19.28. A question was asked about the origin of the proposed 55% FAR standard for duplexes in R-1 zoning districts that would be allowed per Strategy HE-1.3.6. There was little discussion and no consensus reached by the Commission on this issue and it was not a part of any of the motions considered by the Commission. No changes have been made on this issue for the following reasons. The proposed 55% FAR is based on a survey of neighboring jurisdictions R2 FAR standards. Duplexes are intended to be two comparable units in the structure and form that closely resembles a single family home. It should also be noted that there is no FAR limitation for R-2 development. With a 40% lot coverage, two story duplexes could be upwards of 80% FAR – significantly larger than single family homes. As a result, having a much larger or no FAR standard could generate building forms and massing that would not be compatible with the neighborhood form.

Additionally, when the policy to allow missing middle forms of development within singlefamily neighborhoods was proposed, there were many concerned citizens that contacted the City about its implementation. Establishment of clear standards that are in scale with single family development, which allows development slightly greater than single family development would encourage the acceptance and development of such developments. If the Council desires, it could amend Section 19.28.040(K) to change or eliminate the FAR standard in this provision 161
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SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 10 to allow more flexibility and much greater development potential on these sites, which could act as an incentive to develop duplexes on these sites.

Comments from Housing Advocacy Group
The City received a letter from a Housing Advocacy group dated June 18, 2024 (See Attachment D) encouraging changes to several new and existing standards. The letter suggests that these changes would facilitate housing development and provide flexibility to promote affordable homes for all income levels. Several of the issues raised by the group were already discussed at the Planning Commission meeting and have been discussed in the staff report above. The following items were not brought up during the Planning Commission’s discussion but are presented here for the Council’s consideration. No changes have been made to the standards in Attachment A as it relates to the following items
The letter suggests that several existing R-2 zoning standards should be amended including floor area ratio, comparable size of duplex units, lot coverage, side yard setbacks and parking standards. Implementation of HE-1.3.6 (Missing Middle Strategy) specifies that duplex development would be allowed on certain R-1 zoned lots utilizing existing R-2 development standards. Therefore, while this policy does not contemplate any changes to existing R-2 zoning standards, standards for development of duplexes in the R-1 zoning district could be considered without affecting the zoning standards for all duplex property within the City. As a result, this discussion is limited to development standards for duplexes in R-1 zoning districts on certain lots.

1. Zoning standards for duplexes. Parking, floor area standards and definition of duplex units in the R-1 zoning district have been discussed under the “Planning Commission Review and Recommendation” section, above. This section addresses the remaining issues in the letter related to duplexes in R-1 zoning districts. a. Reduce sideyard setbacks: Consider amending the sideyard setback for duplexes in the R-1 district constructed under Strategy HE-1.3.6 to be 5-feet minimum for a total of ten feet for the first floor, for interior lots, consistent with the minimum first floor setback requirements of the R-1 district. Corner lots would be required to have a minimum 12-foot setback on the street side property line, also consistent with the R-1 district. If desired, Council may amend Section 19.28.040(K) to allow this change.
b. Expand Lot Coverage: Consider amending the existing 40% lot coverage. While the letter does not have a proposal for what lot coverage should be amended to, if the Council desires, it could consider imposing a limitation consistent with that in the R-1 zoning district, in conjunction with an FAR standard, to ensure that 162
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MCA-2023-001, Z-2023-001 City Council
SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 11 structures do not become too out of scale within neighborhoods in Section

19.28.040(K).

2. R-3 zoning district:
a. Eliminate story restrictions. If the Council desires to eliminate the story restrictions, it could do so in Section 19.36.070(A). It should be noted that where affordable housing is provided or incorporated into development, state density bonus law allows waivers to increase height limits beyond those permitted under the General Plan or zoning.
b. Increase height standards to 35 feet. Height standards are established through the General Plan and no changes are contemplated to heights within existing neighborhoods at this time. The maximum height limit within neighborhoods is 30 feet. Many existing apartment complexes are located within lower-density residential neighborhoods. Where affordable housing is provided or incorporated into development, state density bonus law allows waivers to increase height limits to beyond those permitted under the General Plan or zoning. c. Eliminate or expand lot coverage. The proposed lot coverage standards considered by the Planning Commission were: 40% for projects with four or fewer units (large single family home sized development, with no FAR standard), and 55% for project with five units or more (mid- to large- apartment size development, with no FAR standard). The proposed standard allows increased coverage for larger apartment complex style projects while maintaining the existing 40% coverage standard for smaller, single-family scale, tri-plex and fourplex developments.

However, if desired, the Council could increase the existing lot coverage in the R3 zoning district from 40% to 50% for all properties, similar to single family zoning districts, in Section 19.36.070. This amended lot coverage could make the standard uniform for all housing types. Staff does not recommend eliminating the lot coverage standard since an FAR standard does not currently exist for R3 development.

3. Parking standards: Staff is contemplating preparing a comprehensive update to the minimum parking standards for different types of residential and non-residential parking at a later time. These changes are not required for implementation of the Housing Element. Additional changes have not been proposed beyond those already incorporated in the proposed ordinance.

Next Steps
The Planning Commission’s recommendation will be presented to the City Council for final action in July 2024. In addition to the zoning changes presented at this meeting, ongoing Housing Element implementation work will continue with the preparation of 163
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MCA-2023-001, Z-2023-001 City Council
SPA-2023-001, CP-2024-002 HE related rezoning & other updates July 2, 2024 12 Objective Design Standards for multi-family and mixed-use development which will be presented to the Commission for its review and recommendation later in 2024.

Sustainability Impact
None
Fiscal Impact
None
California Environmental Quality Act
On February 3, 2023, the California Housing Defense Fund and Yes in My Backyard (YIMBY) filed a lawsuit due to the City missing the January 31, 2023 deadline for adoption of the 6th Cycle Housing Element. In January 2024, the City entered into a stipulated judgment to settle the lawsuit. As a result, pursuant to Government Code Section 65759 et seq., any actions that the City takes to adopt a compliant housing element, including rezoning actions to implement the Housing Element, are exempt from the California Environmental Quality Act (CEQA). In lieu of CEQA compliance, Government Code section 65759 requires that an environmental assessment (EA) in the form of a Draft Environmental Impact Report (EIR) be prepared and adopted as part of the General Plan.

The EA was prepared and adopted as Appendix G of the General Plan on May 14, 2024.

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

A – Draft Ordinance – Municipal Code Amendments
B – Draft Resolution – Heart of the City Specific Plan and BMR Mitigation Manual Amendments
C – Draft Ordinance – Zoning Map Amendments
D – Letter from Cupertino For All dated June 18, 2024
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ORDINANCE NO. 24‐

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AMENDING VARIOUS CHAPTERS IN TITLE 14, TITLE 17 AND TITLE 19, INCLUDING BUT NOT LIMITED TO THE ADDITION OF THREE NEW CHAPTERS IN TITLE 19, TO IMPLEMENT POLICIES

IN THE GENERAL PLAN AND FOR CLARITY
SECTION I: PROJECT DESCRIPTION
Application No:    MCA‐2023‐001
Applicant:   City of Cupertino
Location:   Citywide/Various locations
SECTION II: RECITALS
WHEREAS, state law requires the City to prepare and adopt an updated Housing Element every eight years to accommodate its fair share of housing and identify housing needs, resources and opportunities;
WHEREAS, pursuant to State Housing Law, the City prepared and presented its most recent  draft 6th Cycle Housing Element to the California Department of Housing and Community Development (HCD) on March 28, 2024,
WHEREAS, HCD informed the City in a letter dated April 10, 2024 that the proposed Draft Housing Element is conditionally certified, pending rezoning of the Priority Housing Sites, and any associated rezoning required, to accommodate the City’s Regional Housing Needs Allocation (RHNA); and
WHEREAS, the City Council adopted the City’s 6th Cycle Housing Element and associated General Plan Amendments on May 14, 2024 with Resolution 24‐039; and WHEREAS, the Municipal Code amendment will be consistent with the Cityʹs General Plan land use map, proposed uses and surrounding uses; and WHEREAS, the necessary public notices have been given as required by the Municipal Code of the City of Cupertino and the Government Code, and the Planning Commission held a public hearing on June 11, 2024 to consider the project; and WHEREAS, based on substantial evidence in the administrative record, on June 11, 2024 the Planning Commission recommended that the City Council approve the Zoning Map Amendments, Z‐2023‐001, in substantially similar form to the Resolution presented (Resolution no. 2024‐11); approve the Specific Plan Amendments (SPA‐2024‐001) and 165
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amendments to the Below Market Rate Housing Mitigation Manual (CP‐2024‐002) in substantially similar form to the Resolution presented (Resolution no. 2024‐10) and did not make a recommendation to the City Council as it related to the Municipal Code Amendments required to conform with the General Plan and Housing Element and other minor clean up text edits (MCA‐2023‐001); and
WHEREAS, the City Council of the City of Cupertino held a duly noticed public hearing on July 2, 2024, and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for this Ordinance;
WHEREAS, the City entered into a Stipulated Judgment dated January 8, 2024 pursuant to a lawsuit related to adoption of the Housing Element which included requirements for coming into compliance with state housing element law ________ and exempted the City from the California Environmental Quality Act (“CEQA”) pursuant to Government Code section 65759; and
WHEREAS, pursuant to Government Code 65759, the General Plan Amendment to adopt the Housing Element and associated amendments to the General Plan and zoning is fully described and analyzed in the Environmental Assessment, which is incorporated into the General Plan as Appendix G; and
WHEREAS, it is the intent of the City Council, in enacting this Ordinance to make text amendments to improve conformity with State Law, improve readability, consistency and eliminate redundancies and
WHEREAS, The City Council of the City of Cupertino finds that:

1. The proposed zoning is in accord with the Municipal Code and the Cityʹs Comprehensive General Plan.

The proposed zoning is in conformance with the General Plan since the City Council adopted amendments to the General Plan, including changes to land use designations, in May 2024 with adoption of the Housing Element. These changes are mere conforming changes to make the City’s zoning map conform to the land use map.

2. The proposed zoning is in compliance with the provisions of the California Environmental Quality Act (CEQA).

Pursuant to Govt. Code Section 65759, the zoning actions related to bringing the City’s Housing Element into compliance with state law are exempt from CEQA. An Environmental 166
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Assessment was prepared, also in compliance with state law. This Environmental Assessment identified all feasible mitigation measures and was adopted as Appendix G – General Plan 2040 and Zoning Code Amendments Environmental Assessment of the General Plan as required by state law.

3. The site(s) are physically suitable (including, but not limited to, access, provision of utilities, compatibility with adjoining land uses, and absence of physical constraints) for the proposed zoning designation(s) and anticipated land use development(s).

The sites being rezoned have access to utilities and are compatible with adjoining land uses.

4. The proposed zoning will promote orderly development of the City.

The proposed changes allow the City to comply with the requirements of state law related to housing and to allow development contemplated in the Housing Element on the sites identified as Priority Housing Sites. The proposed regulations are designed to accommodate development at the densities envisioned in the Housing Element.

5. That the proposed zoning is not detrimental to the health, safety, peace, morals and general welfare of persons residing or working in the neighborhood of subject parcels.

The proposed zoning is not detrimental to the health, safety, peace, morals and general welfare since these are conforming changes. Additionally, where health or safety impacts have been identified mitigation measures have been identified which would be applicable to any development on these sites, including those implemented through the City’s existing Municipal Code requirements.

6. The proposed amendments are internally consistent with Title 19.

The proposed amendments are internally consistent with the existing language in the Municipal Code.

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

Section 1. Amendments.

The amendments indicated in Attachment I are hereby incorporated into the Municipal Code. 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.

Section 2. Severability and Continuity.
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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.

Adoption of these zoning amendments to allow implementation of the Housing Element is exempted from the California Environmental Quality Act (“CEQA”) pursuant to Government Code section 65759.

Section 4. Effective Date.

This Ordinance shall take effect and be in force thirty (30) days from and 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 regular meeting of the Cupertino City Council the ____ day of ___________ 2024 and ENACTED at a regular meeting of the Cupertino City Council on this ____ day of ___________ 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
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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 I

19.08: Definitions

19.08.030: Definitions
“Duplex” means a residential development, on a lot under one ownership, containing not more than two kitchens, designed and used as two attached or detached primary dwelling units, of comparable size (i.e., no more than 200 square‐foot difference between primary dwelling units), independent of each other, and having no internal connection. ʺCongregate residenceʺ means any building or portion which contains facilities for living, sleeping and sanitation, as required by the California Building Code and may include facilities for eating and cooking for occupancies other than a family. A congregate residence may be a shelter, convent or monastery but does not include jails, hospitals, nursing homes, homes for disabled persons, residential care facilities, supportive or transitional housing, hotels or lodging houses.

Emergency Shelter:
ʺEmergency shelter, rotatingʺ means a facility or program, including Rotating Safe Car Park, that provides temporary housing with minimal supportive services for people experiencing homelessness and meets criteria in Section Chapter 19.5076.030(2). ʺEmergency shelter, permanentʺ means a permanently operated facility that provides temporary housing with minimal supportive services for people experiencing homelessness pursuant to California Health and Safety Code Section 50801(e) and meets criteria in Section Chapter 19.5076.030(3). Permanent emergency shelters include other interim interventions, including but not limited to, bridge housing and respite or recuperative care. ʺEntry featureʺ means a structural element (e.g., porch, stoop), projecting from the front wall of a building that connects a building entrance, usually for a dwelling unit, to a walkway or sidewalk and is generally sheltered by a canopy or roof and accompanied by a landing, stairs, or ramp.which leads to an entry door.
“Live/work unit” means a free‐standing residential unit or a unit within a multiple‐family residential development used for commercial or office and residential purposes where the residential use of the space is accessory to the primary use as a place of work. A live/work unit shall meet the following: (a) combines a commercial or office activity allowed in the underlying zoning district with a residential living space for the owner of the business, or the owner’s employee, and that person’s household; (b) the resident owner or employee of the business is responsible for the commercial or office activity performed; (c) the business activity conducted takes place subject to a valid business license associated with the premises; and (d) active commercial, or office uses, shall be oriented along the street frontage with the residential component of the unit located behind or above the commercial or office space. ʺLow‐Barrier Navigation Center” means a facility that meets all of the requirements of Government Code Sections 65660 et seq.
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ʺPriority Housing Sites” means sites designated in the Housing Element that are assumed to meet the City’s Regional Housing Needs Allocation. Priority Housing Sites shall be shown on the City’s General Plan Land Use Map.
ʺResidential Ccare Ffacilityʺ means a residential building or portion designed or used for the purpose of providing twenty‐four‐hour‐a‐day nonmedical residential living accommodationscare of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily life or for the protection of the individual pursuant to the Uniform Building, Housing and Fire Codes, in exchange for payment of money or other consideration, where the duration of tenancy is determined, in whole or in part, by the individual residentʹs participation in group or individual activities such as counseling, recovery planning, medical or therapeutic assistance. Residential care facility includes, but is not limited to, health facilities as defined in California Health and Safety Code (H&SC Section 1250 et seq.), community care facilities (H&SC Section 1500 et seq.), residential care facilities for the elderly (H&SC Section 1569 et seq.) or facilities for the mentally disordered or otherwise handicapped (W&I Code Section 5000 et seq.), alcoholism or drug abuse recovery or treatment facilities (H&SC Section 11384.11), and other similar care facilities.
ʺResidential Care Facility, Licensedʺ means any residential care facility licensed by the state.

1. Large Licensed Residential Care Facility means a licensed residential care facility which serves seven (7) or more clients, not including provider, provider family or staff.

2. Small Licensed Residential Care Facility means a licensed residential care facility which serves six (6) or fewer clients, not including provider, provider family or staff. “Residential Care Facility, Unlicensed” means any residential care facility not required to be licensed by the state and operated as a single housekeeping unit. ʺResidential district,ʺ for purposes of the Sign Ordinance, means the R‐1, RHS, R‐2, R‐3, R‐4, R1C, A, and A1 zoning classifications or TH combining district, which are consistent with the residential designation of the Cupertino Ggeneral Pplan. “Short‐term rental” means any legally permitted dwelling unit, or portion thereof, made available for rent on a transient occupancy basis. Short‐term rental use shall not be considered a hotel or single room occupancy use.
“Single family residence,” for purposes of Chapter 19.112, shall mean one dwelling unit located on a separately owned lot, including custom‐ built on site, factory‐built, manufactured, or modular housing. Single family residence does not include property with only air parcels, or condominiums, or townhomes.
“Single Housekeeping Unit” means one or more individuals occupying a dwelling unit with common access to, and common use of, living and eating areas and facilities forthe preparation and storage of food, within the dwelling unit.
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ʺSingle room occupancy (SRO) living unitʺ means an individually secure residential unit between 150 and 400 square feet in size. SROs are not required to, but may, contain partial or full bathroom and kitchen facilities. SROs include extended stay hotels intended forlong‐term occupancy (more than 30 days) but do not include other hotels or residential care facilities. ʺStepback” means a change in the vertical plane of a building where upper‐story areas of the building wall are setback from the building wall of the story directly below. ʺSupportive housingʺ means housing with no limit on length of stay, that is occupied by the target population, and that is linked to onsite or offsite services that assist the supportive housing resident in retaining the housing, improving his or her health status, and maximizing his or her ability to live and, when possible, work in the community, or as otherwise defined in Government Code Section 65582(g). The “target population” is as defined in Government Code Section 65582(i).
“Supportive housing, permanent” means housing as defined in Government Code Section 65650(a) with a maximum of 50 units serving the target population as defined in Government Code Section 65650(c) and meeting all of the requirements of Government Code Sections 65650 et seq.
ʺTarget populationʺ (per CA Government Code 65582(g), as may be amended) means persons with low incomes having one or more disabilities, including mental illness, HIV or AIDS, substance abuse, or other chronic health conditions, or individuals eligible for services provided under the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code).
“Townhome” or “rowhouse” means a group of two or more attached dwelling units where units are separated from others by a common or party wall, no unit is located over another unit, each unit has its own front and rear ground floor access to the outside, and owners have fee simple title to the air space of the unit. Townhomes do not include duplexes legally built on properties where such uses are permitted.

19.12: Administration

19.12.020: Applicability of Regulations
A. In the A, A‐1, R‐1, and RHS Zones, the following activities:

1. Conditional uses in accord with Chapter 19.20, Chapter 19.24, Chapter 19.28, Chapter

19.32,Chapter 19.36,and Chapter 19.40and Chapter 19.44; B. In R‐2, R‐3, R‐4, R1C, TH and all Commercial, Industrial, Office, Planned Community Zoning Districts, and other non‐residential zoning districts:
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5. Conditional uses in accord with Chapter 19.20, Chapter 19.32, Chapter 19.36, Chapter

19.38, Chapter 19.44, Chapter 19.46, Chapter 19.60, Chapter 19.64, Chapter 19.68, Chapter

19.72, Chapter 19.76, Chapter 19.80, Chapter 19.84, Chapter 19.88, Chapter 19.92, Chapter

19.96, Chapter 19.128, Chapter 19.116, Chapter 19.132, Chapter 19.136.

19.12.030: Approval Authority
Table 19.12.030 – Approval Authority
Type of Permit or
Decision A, B
Admin‐
istrative
ReviewA,B
Arts and
Culture
Commission
Planning
Commission
City
Council
Public
Hearing/
Public
Meeting/
Comment
Period C
Noticing
Radius D
Posted
Site
Notice
Expiration
Date E
Chapter/
Findings
General Plan Amendment
Major F ‐ ‐ R F PH CA. Govt.

Code 65350‐
65362
Yes ‐ CA. Govt.

Code
65350‐
65362
Minor G ‐ ‐ R F PH Yes ‐
Zoning Map Amendments
Major F ‐ ‐ R F PH CA. Govt.

Code 65853‐
65857
Yes ‐ 19.152.020
Minor G ‐ ‐ R F PH Yes ‐
Zoning Text
Amendments ‐ ‐ R F PH
CA. Govt.

Code 65853‐
65857
‐ ‐ 19.152.030
Specific Plans ‐ ‐ R F PH
CA. Govt.

Code 65350‐
65362
‐ ‐ 20.04.030
Development
Agreements ‐ ‐ R F PH CA. Govt.

Code 65867 Yes ‐ 19.144.120
Development Permits
Major F, H ‐ ‐ F/R A1/F PM 19.12.110/300ʹ Yes 2 years 19.156.050 Minor G F ‐ A1 A2 PM Yes 2 years
Conditional Use Permits
Major F, H, I F ‐ A1/F/R A1/A2/F PH CA. Govt.

Code 65905
Yes 2 years 19.156.050
Minor G, I F ‐ A1/F/R A1/A2/F PH Yes 2 years
Temporary F ‐ A1 A2 ‐ None No 1 year
None/

19.160.030
Density Bonus
(Residential) ‐ ‐ R F
Based on
concurrent
application

19.56 173
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Type of Permit or
Decision A, B
Admin‐
istrative
ReviewA,B
Arts and
Culture
Commission
Planning
Commission
City
Council
Public
Hearing/
Public
Meeting/
Comment
Period C
Noticing
Radius D
Posted
Site
Notice
Expiration
Date E
Chapter/
Findings
Density Bonus P Section 19.56.060 B
Adult‐Oriented
Commercial Activity
(CUP)
‐ R F PH
CA. Govt.

Code
65905/300ʹ
Yes 2 years

19.128.030
&

19.128.040
Architectural and Site Approval
Major J, P F ‐ A1 A2 PM

19.12.110/
Yes 2 years 19.168.030
Minor K F ‐ A1 A2 PM Yes 2 years
Amendment
Major F, H ‐ ‐ F A1 Varies L
Depends on
permit being
amendedL
Yes 2 years

19.44,

19.144,

19.156,
Minor G F ‐ A1 A2 Varies L Yes 2 years 19.164
Minor Modification F ‐ A1 A2 ‐ None No 2 years 19.164 Hillside Exception/
Height Exception/
Heart of the City
Exception I
‐ ‐ F A1 PH 19.12.110/300ʹ Yes 2 years

19.40.080,

19.24.070,

19.136.090
Variance F ‐ A1 A2 PH CA. Govt.

Code 65905 Yes 2 years 19.156.060
Status of non‐
conforming Use ‐ ‐ F A1 PH 19.12.110/300ʹ Yes ‐ 19.140.110 Wireless Antennas I F ‐ F/ A1 A2 Varies I
Depends on
application
type
Yes 2 years 19.136.090
Signs
Permits F ‐ A1 A2 ‐ None No 1 year 19.104
Neon, Reader board &
Freeway Oriented
Signs I
F ‐ F/A1 A1/A2 PM 19.12.110/300ʹ No 1 year 19.104
Programs F ‐ A1 A2 ‐ None No 1 year 19.104
Exceptions I ‐ ‐ F A1 PM 19.12.110/
Adjacent Yes 1 year 19.104.290
Parking Exceptions I F F‐ FA1 A1 /A2 Varies M

19.12.110/
Adjacent/
300ʹ N
Yes 1 year 19.124.050
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Type of Permit or
Decision A, B
Admin‐
istrative
ReviewA,B
Arts and
Culture
Commission
Planning
Commission
City
Council
Public
Hearing/
Public
Meeting/
Comment
Period C
Noticing
Radius D
Posted
Site
Notice
Expiration
Date E
Chapter/
Findings
Fence Exceptions F ‐ A1 A1 L PM 19.12.110/
Adjacent Yes 1 year 19.48.060
Front Yard
Interpretation F ‐ ‐ A1 PM 19.12.110/
Adjacent Yes 1 year 19.08
R‐1 Ordinance Permits
Residential Design
Review I F F‐ F/A1 A1 L /A2 Varies I

19.12.110/
Adjacent
Yes 1 year 19.28.140
Minor Residential F ‐ A1 A2 CP No 1 year
Exceptions I ‐ F‐ ‐ A1 M PM Yes 1 year
Miscellaneous
Ministerial Permit F ‐ ‐ ‐ None Adjacent Yes 1 year

19.28.150
and

19.40.090
Protected Trees
Tree Removal F ‐ A1 A2 CP
Adjacent
unless
exempt
Yes 1 year 14.18.180
Heritage Tree
Designation & Removal ‐ ‐ F A1 PM 19.12.110/
300ʹ Yes ‐ 14.18
Tree Management Plan F ‐ A1 A2 ‐ None No ‐ 14.18
Retroactive Tree
Removal F ‐ A1 A2 ‐ None No ‐ 14.18
Reasonable
Accommodation F ‐ A1 A2 ‐ None No 1 year 19.52.050
Extensions P
Parking, Fence & Sign
Exceptions & Front
Yard Interpretations
F ‐ A1 A2 ‐ None No 1 year
Neon, Reader board &
Freeway Oriented
Signs
F A1 A2 ‐ None No 1 year
Two Story Permits,
Minor Residential
Permits and Exceptions
F A1 A2 ‐ None No 1 year
Tree Removals F ‐ A1 A2 ‐ ‐ No 1 year
All other projects F ‐ A1 A2 ‐ 19.12.110/
None No 2 years
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Type of Permit or
Decision A, B
Admin‐
istrative
ReviewA,B
Arts and
Culture
Commission
Planning
Commission
City
Council
Public
Hearing/
Public
Meeting/
Comment
Period C
Noticing
Radius D
Posted
Site
Notice
Expiration
Date E
Chapter/
Findings
Miscellaneous
Ministerial Permit Not Allowed
Public Art Architectural and Site Approval Permits
Public Art ‐ F ‐ A1 PM None None None 2.80 and

19.148
Art in lieu payment ‐ R ‐ F PM None None None 2.80 and

19.148
KEY:

R—Review and recommendation body F—Final decision‐making body unless appealed A1—Appeal Body on first appeal. Only one appeal allowed for housing developments eligible for by‐right approval.

A2—Appeal body on second appeal. Only one appeal
allowed for housing developments eligible for by‐
right approval.

PH—Public Hearing PM—Public Meeting
CP—Comment Period
Notes:

J. Major Architectural and Site Approval application ‐ architectural and site approval for all projects that are not a Minor Architectural and Site Approval application. Also see Note P.

K. Minor Architectural and Site Approval application ‐ single family home in a planned development zoning district, minor building architectural modifications, landscaping, signs and lighting for new development, permanent supportive housing with up to 6 units subject to by‐right processing as required by Government Code Section 65650 et seq., redevelopment or modification in such zones where review is required, and minor modifications of duplex and multi‐family buildings.

P. i. Housing Development projects located on Priority Housing Sites, identified to meet the lower income RHNA in the City’s Housing Element (Tables B4‐7 and B4‐9), are required to be developed at a minimum density of 20 dwelling units per acre, unless a higher minimum density is required per the General Plan. Housing Development projects that provide at least 20% of the total units in the development as affordable to lower income households, are eligible for by‐right approval as defined in Government Code Section 65583.2(i), which means that they are exempt from CEQA and subject only to design review based on objective standards. Major Architectural and Site Approval shall be processed as follows:
 Administrative Review at an Administrative Hearing for a project with up to 50 units  Planning Commission review for projects with greater than 50 units. 176
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Any subdivision of the Priority Housing Sites shall be subject to all laws, including, but not limited to, the Subdivision Map Act and Title 18 of the Municipal Code. ii. Permanent supportive housing with between 7 and 50 units and low barrier navigation centers are subject to by‐right Major Architectural and Site Approval as defined in subsection (i) above and shall be reviewed and approved as required by Government Code Section 65650 et seq., for supportive housing, and Government Code Section 65660 et seq. for low barrier navigation centers.

19.12.080: Application Process
B. Application shall be made on a form provided by the City, and shall contain the following, unless waived by the Director of Community Development based on the scope of the proposed project:

12. Zoning Map or Text Amendments shall also include information required per Chapter

19.152.
b. Zoning applications for Multiple‐Family (R‐3 and R‐4) Residential or Townhome (TH) Combining District shall also include information required per Sections 19.36.040, 19.38.040, and

19.46.040; and

18. A grading plan clearly identifying existing contours and finished grading in relation to proposed construction. The grading plan shall denote the location of all nonfruit trees with a trunk diameter as identified in Chapter 14.15, the Protected Tree Ordinance and any special status plant species.

19.16: Designations and Establishment of Districts

19.16.010: Zoning Districts Designated
A. The several classes of general base districts into which the City is divided are identified in Table 19.16.010A below:

Table 19.16.010A ‐– Base Zoning Districts
Zoning Map Designation and District Name Chapter Number R‐3 Medium, Medium/High, and High Density
Multiple‐Family Residential Zone

19.36 R‐4 High/Very High, Very High, and Highest
Density Multiple‐Family Residential Zone

19.38 B. Combining district(s) are identified in Table 19.16.010B below.

Table 19.16.010B ‐ Combining Districts
Zoning Map Designation and District Name Chapter Number TH Townhome Combining District 19.46
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CB. In addition to the base zonesing districts identified in Table 19.16.010A and combining districts identified in Table 19.16.010B, the City may establish separate zoning districts in individual specific plans adopted to promote the orderly development of the plan area. These zoning districts are identified in Table 19.16.010CB below:

Table 19.16.010CB ‐ Specific Plan Districts
Zoning Map Designation Specific Plan Name
Heart of the City Heart of the City
Land uses, parcel level zoning, and development standards within a specific plan zone shall be as prescribed in the specific plan.

19.16.020: References to Base Zoning Districts
Residential Base Zoning District Restrictive Reference
Most restrictive
RHS
R1C
R‐1
R‐2
R‐3
R‐4
Least restrictive

19.20: Permitted, Conditional, and Excluded Uses in Agricultural and Residential Zones

19.20.010: Applicability of Regulations.

No building, or structure, or land shall be used in an A, A‐1, R‐1, RHS, R1C, R‐2, or R‐3, or R‐4 zoning district or TH combining district, otherwise than in conformance with the provisions of this chapter.

19.20.020: Permitted, Conditional and Excluded Uses in Agricultural and Residential Zones
Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4

1. Agriculture, horticulture,
viticulture, and forestry, including
the following and similar uses:

P P ‐ ‐ ‐ ‐ ‐ ‐
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
a. Field and truck crops,
including drying and
storage,
P P ‐ ‐ ‐ ‐ ‐ ‐
b. Orchards and vineyards,
including bottling and
storage,
P P ‐ ‐ ‐ ‐ ‐ ‐
c. Tree farms, botanical
conservatories, and
arboreta,
P P ‐ ‐ ‐ ‐ ‐ ‐
d. Barns and sheds, P P ‐ ‐ ‐ ‐ ‐ ‐
e. Keeping of draft animals,
animals providing products
used on the property,
P P ‐ ‐ ‐ ‐ ‐ ‐
f. Livestock ranches and dairy
farms depending mainly on
grazing on the property,
P CUP – PC ‐ ‐ ‐ ‐ ‐ ‐
g. Processing of dairy
products produced on the
property,
P CUP – PC ‐ ‐ ‐ ‐ ‐ ‐
h. Poultry raising and
hatcheries,
P CUP – PC See #3327
i. Apiaries, pursuant
to Chapter 8.07,
P CUP – PC See #119
j. Nurseries, greenhouses and
landscaping gardens,
P CUP – PC See #260
k. Boarding kennels, CUP ‐ PC CUP – PC ‐ ‐ ‐ ‐ ‐ ‐ l. Animal breeding; P CUP ‐
Admin.
‐ ‐ ‐ ‐ ‐ ‐

2. Fur farms ‐ CUP – PC ‐ ‐ ‐ ‐ ‐ ‐

3. Retail sale of wine, fruit or
berries produced on the
property;
CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐ ‐

4. Single‐family dwelling unit
with not more than oOne
primary dwelling unit per
lot/defined air space for
condominiums;
P P P P P ‐ ‐ ‐

5. Two‐story structures in an
area designated for a one‐story
limitation pursuant to
Section 19.28.040(I) of this
‐ ‐ CUP ‐ PC ‐ ‐ ‐ ‐ ‐
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
chapter, provided that the
Planning Commission
determines that the structure will
not result in privacy impacts,
shadowing, or intrusive noise,
odor, or other adverse impacts to
the surrounding area;

6. Duplex with not more than
two primary dwelling units per
lot
‐ ‐ See
Chapter

19.28 ‐ ‐ P ‐ ‐

76. Employee housing:
a. For six or fewer employees
in each dwelling unit on
each lot

P P P P P P P P
b With no more than 36
beds in group quarters or
12 units/spaces designed
for use by a single family
or household on each lot
P P ‐ CUP‐
Admin.
‐ ‐ ‐ ‐

87. An accessory dwelling unit
that conforms to the
requirements of Chapter 19.112;

P P P P P P P P

89. Multiple‐family residential
dwellings
‐ ‐ ‐ ‐ ‐ ‐ P P

10. Townhome residential
dwellings
‐ ‐ ‐ ‐ ‐ ‐ P3 P3
119. Accessory facilities and uses
customarily incidental to
permitted uses and otherwise
conforming with the provisions
of Chapter 19.100 of this title;

P P P P P P P P
120.  Utility facilities essential to
provision of utility services to the
neighborhood but excluding
business offices, construction or
storage yards, maintenance
facilities, or corporation yards;
‐ ‐ P ‐ ‐ P CUP ‐ CC CUP‐CC
131.  Temporary buildings for
construction purposes (including
trailers) for a period not to
exceed the duration of such
construction;
‐ ‐ ‐ ‐ ‐ ‐ P P
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
124.  Home occupations:;
a. When accessory to
permitted use and
otherwise conforming to
the provisions of Chapter

19.120 of this title;

P P P P P P P P
b. Requiring a Conditional
Use Permit pursuant to
Chapter 19.120 of this title;
CUP ‐
Admin.

CUP ‐
Admin.

CUP ‐
Admin.
c. Short‐term rentals
pursuant to Chapter

5.08 of the Municipal Code

P P P P P P P P
153. Small‐family day care
home per dwelling unit;

P P P P P P P P
164. Large‐family day care home per dwelling unit:;
a. Which meets the parking
criteria contained
in Chapter 19.124, and
which is at least three
hundred feet from any
other large‐family day care
home.

The Director of Community
Development or his or her
designee shall
administratively approve
large day care homes to
ensure compliance with the
parking and proximity
requirements;
P P P P P P CUP ‐
Admin.P
P
b. Which otherwise does not
meet the criteria for a
permitted use. The
conditional use permit shall
be processed as provided
by CA. Health and Safety
Code Section 1597.46(3);
CUP ‐
Admin.

CUP ‐
Admin.

CUP ‐
Admin.
175. Small licensed rResidential
care facility, located in housing
of a type permitted in the zone
and, where required by state
law, is at least 300 feet from
another regulated community

P P P P P P P P
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
care facility with six or fewer
residents, not including the
provider, provider family or
staff, provided that the facility
obtains any license, if required,
issued by appropriate State
and/or County agencies and/or
department:;

16. Residential care facility, in
each dwelling unit, with seven or
greater residents, not including
the provider, provider family or
staff, is a minimum distance of
five hundred feet from the
property boundary of another
residential care facility, provided
that the facility obtains any
license, if required, issued by
appropriate State and/or County
agencies and/or departments; 18.

Large licensed residential care
facility, located in housing of a
type permitted in the zone and,
where required by state law, is
at least 300 feet from another
regulated community care
facility
CUP ‐ PC CUP ‐ PC CUP ‐ PC CUP ‐ PC CUP ‐ PC CUP ‐
PC
CUP ‐ PC CUP‐PC

19. Unlicensed Residential Care
facility located in housing of a
type permitted in the zone

P P P P P P P P
1720. Congregate residence, in
each dwelling unit:

a. With six or fewer residents P P P P P P P P
b. With seven or greater
residents which is a
minimum distance of one
thousand feet from the
boundary of another
congregate residence and
has a minimum of seventy‐
five square feet of usable
rear yard area per occupant
CUP ‐ PC CUP ‐ PC CUP ‐ PC CUP ‐ PC CUP ‐ PC CUP ‐
PC
CUP ‐ PC CUP‐PC
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
1821. Transitional housing
located in housing of a type
permitted on the zone;

P P P P P P P P
1922. Supportive housing
located in housing of a type
permitted in the zone

P P P P P P P P

23. Supportive housing,
permanent, with no more than 50
units
P4 P4

24. Single‐room occupancy
(SRO) units
‐ ‐ ‐ ‐ ‐ ‐ ‐ CUP ‐
Admin

25.   Permanent emergency
shelter that complies with
Chapter 19.50
‐ ‐ ‐ ‐ ‐ ‐ ‐ P
260.   Horticulture, gardening, and growing of food products:; a. Recreational for personal
use;
P P P P P P ‐ ‐
b. Limited to maximum of ten
percent of the lot area and
for consumption by
occupants of the site;
‐ ‐ ‐ ‐ ‐ ‐ P P
c. Produce grown on site may
be sold if the business
activity is conducted in a
manner consistent with
Chapter 19.120, Home
Occupations
‐ ‐ ‐ P ‐ ‐ ‐ ‐
d. Commercial purposes; See #1 See #1 ‐ CUP ‐
Admin.
‐ ‐ ‐ ‐
271.   Limited commercial
recreation uses, such as riding
clubs and related stables and
trails, golf courses, swimming
and picnic grounds;
‐See #37 ‐See #37 ‐ CUP ‐ PC ‐ ‐ ‐ ‐
282.   Golf courses and driving
ranges;
CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐ ‐
293.   Commercial swimming
pools and picnic areas;
CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐ ‐
3024.   Temporary uses subject to
regulations established
by Chapter 19.156
CUP ‐
Admin.

CUP ‐
Admin.

CUP‐
Admin.
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
3125. Buildings or structures
which incorporate solar design
features that require variation
from setbacks upon a
determination by the Director
that the design feature, or
features, will not result in
privacy impacts, shadowing, or
intrusive noise, odor, or other
adverse impacts to the
surrounding area.

CUP ‐
Admin.P
CUP ‐
Admin.P
‐P CUP ‐
Admin.P
‐P ‐P ‐P P
3226. Transmission lines,
transformer stations, television
and radio towers, and other
public utility and communication
structures;
CUP ‐ PC CUP ‐ PC ‐ ‐ ‐ ‐ ‐ ‐
3327. Adult (over 4 months of age) household pets per dwelling unit, limited as follows:
a. No specified number P P ‐ ‐ ‐ ‐ ‐ ‐
b. Maximum of four,
provided no more than two
adult dogs or cats may be
kept on the site
‐ ‐ P ‐ P P P P
c. Limited to one per three
thousand square feet of lot
area, except:

1.i. Dogs are limited to a
maximum of two on lots
less than one acre and four
for lots greater than one
acre; and

2.ii. The number of geese,
ducks, chickens, rabbits
and other farm animals are
not limited on a site greater
than one acre.
‐ ‐ ‐ P 2† ‐ ‐ ‐ ‐
3428.   Litter of dogs or cats up to four months of age:; a. No specified number P P ‐ P ‐ ‐ ‐ ‐
b. Maximum of one ‐ ‐ P ‐ P P P P
3529.   Large animals, provided no animals are kept, maintained and raised for commercial purposes, limited as follows:
a. Two large animals for
the first 40,000 square feet
See #1 See #1 ‐ P †2 ‐ ‐ ‐ ‐
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
of land area, except mules
and donkeys which require
80,000 square feet for the
first animal,
b. One additional large
animal for each 20,000
square feet of land area,
c. One additional large
animal if said animal is
raised for a 4H project, a
project sponsored by a
recognized agricultural
organization or a school
project,
360.   The keeping of any animal
not otherwise permitted above:
#2733, 28 34, and 2935
‐ ‐ ‐ CUP ‐
Admin.
‐ ‐ ‐ ‐
3731.   Riding academies,
commercial stables, and the
boarding of horses:;
CUP ‐ CC CUP ‐ CC ‐ ‐See #27 ‐ ‐ ‐ ‐
382. Noncommercial stables, and the keeping of riding horses:
a. Limited to three horses on
each lot at the any time
except that additional foals
may be retained for a
period of six months;
P P ‐ ‐See #35 ‐ ‐ ‐ ‐
b. In excess of the number
permitted in #3238(a)
CUP ‐ CC CUP ‐ CC ‐ See #35‐ ‐ ‐ ‐ ‐
393.   Cemeteries, crematoriums,
mausolea, and columbariums
CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐
4034.   Mines, quarries and gravel
pits;
CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐ ‐
4135.   Guest ranches; CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐ ‐ 4236.   Public and quasi‐public
buildings and uses.

CUP ‐ CC CUP ‐ CC ‐ ‐ ‐ ‐ ‐ ‐
4337.   Hog farms; Ex‐ Ex‐ ‐ ‐ ‐ ‐ ‐ ‐
3844.   Cattle farms mainly
depending upon feed brought
onto the property;
Ex‐ Ex‐ ‐ ‐ ‐ ‐ ‐ ‐
3945.   Slaughterhouses, fertilizer
yards, feed yards, boneyards or
Ex‐ Ex‐ ‐ ‐ ‐ ‐ ‐ ‐
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Uses A A‐1 R‐1 RHS R1C R‐2 R‐3 R‐4
plants for the reduction of animal
matter;
460.   Commercial feed sales; Ex‐ Ex‐ ‐ ‐ ‐ ‐ ‐ ‐
471.   Other semiagricultural uses
mainly depending upon raw
materials, semifinished products,
or feed brought on to the
property;
Ex‐ Ex‐ ‐ ‐ ‐ ‐ ‐ ‐
482.   Other agricultural uses
which, in the opinion of the
Director of Community
Development, create a private or
public nuisance.

Ex‐ Ex‐ ‐ ‐ ‐ ‐ ‐ ‐
Key:

P – Permitted Use
‐ – Not Allowed/Excluded Uses
CUP ‐ Admin. – Conditional Use Permit issued by the Director of Community Development CUP ‐ PC – Conditional Use Permit issued by the Planning Commission CUP ‐ CC – Conditional Use Permit issued by the City Council 1* – May be permitted in locations where the use is compatible with existing and planned uses within the development area in the opinion of the Director of Community Development., † 2 – The required lot area for a large animal shall not be included in the required lot area for a household pet or vice versa, except that a maximum of two household pets may be kept with large animals., All animals must be kept and maintained in accordance with other Cupertino or Santa Clara County codes and ordinances.,
3‐ Permitted only under the Townhome (TH) Combining District 4‐ Permitted by‐right consistent with State law
Ex – Excluded Uses

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19.28: Single‐Family Residential (R‐1) Zones

19.28.040: Permits required for development
Table 19.28.040 Permits Required
Planning permit required
prior to building permit
application
Approval
authority
Type of Project
K. Conditional Use Permit
pursuant to Chapter

19.12, Administration
Admin Rental dDuplex developments in a single structure on corner lots or on properties where the adjacent property (1) fronts an arterial or major collector and (2) is zoned and currently used for commercial or mixed‐use development. All units shall comply with Section

19.32.060, Building Development Regulations for Residential Duplex (R‐2), and are subject to a maximum floor area ratio of 55%. Combined with two attached and/or detached ADUs, a maximum of four units are allowed. Units located on property with an “i” or “e” suffix after the R1 designation are also subject to the respective overlay standards. Units located on parcels zoned R1‐a shall meet the required front setbacks for R1‐a zoning district. Units on parcels where the zoning map identifies a different front setback shall meet the required front setback.

19.36: Multiple‐Family Residential (R‐3) Zones

19.36.010: Purpose
The purpose of this chapter is to provide a zoning district permitting medium, medium‐high, and high density multiple‐family residential uses and to establish the regulations pertaining thereto. These regulations are intended to guide future multiple‐family residential development and ensure a healthy functional environment for future residents within the proposed development and for and between adjoining parcels. The R‐3 zoning district may be combined with the townhome (TH) zoning district in accordance with Chapter 19.46.

19.36.020: Applicability of Regulations
A. No building, structure, or land shall be used, and no building or structure shall be hereafter erected, structurally altered, or enlarged in a multiple‐family residential (R‐3) zoning district, otherwise than in conformance with the provisions of this chapter and other applicable provisions of this title.

B. Reasonable Accommodation: Notwithstanding 19.36.020(A) above, a request for reasonable accommodation may be made by any person with a disability, when the strict application of the 187
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provisions in this chapter, acts as a barrier to fair housing opportunities, pursuant to Chapter

19.520.

19.36.030: Permitted, Conditional, and Excluded Uses
Permitted, Conditional, and Excluded Uses that may be conducted fromon property zoned multiple‐family residentialR‐3 are identified in Section 19.20.020.

19.36.040: Development Plan Required
An application for development on a parcel presently zoned R‐3 shall require submittal of all materials identified in Chapter 19.12. The Community Development Director may establish development plan application requirements beyond those required by Chapter 19.12.

A. An application for development in R‐3 zones, shall in addition to the information required by Chapter 19.12, be accompanied by a development plan that includes the following:

1. The Architectural theme of the development, including the location of buildings on the lot, building configurations, building heights, private patio and balcony areas, fence lines, and general window locations;

2. A description of the private outdoor area for each dwelling unit and a description of the degree of visual intrusion into adjoining properties which may result upon implementation of the project. The visual analysis shall include scale cross‐sections if deemed essential to interpret the degree of visual intrusion into private outdoor or indoor space;

3. A grading plan describing existing contours and finish grading in relation to proposed construction. The grading plan shall denote the location of all nonfruit trees with a trunk diameter as identified in Chapter 14.15, the Protected Tree Ordinance;

4. The location of areas proposed for vehicular circulation and for landscaping.

19.36.050: Permit Required for Development
A. No building permit may be issued for development on a parcel proposal of a vacant property presently zoned multiple‐family residential (R‐3) until a development plan is approved with as part of a development permit pursuant to Chapters 19.12 and 19.156. Housing development projects on Priority Housing Sites considered by‐right pursuant to state law shall be processed as identified in Table 19.12.030.

19.36.060: Site Development Regulations
Table 19.36.060 sets forth the rules and regulations pertaining to the Development Regulations for the development of property zoned multiple‐family residential (R‐3). 188
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Table 19.36.060 Site Development Regulations
A. Density – Maximum number of
units cannot exceed that allowed by the
General Plan

1. Maximum as designated in the General Plan.

2. Development on sites with a minimum density shall meet the minimum density established on the General Plan Land Use map.

Number of Units Dwelling Net Lot Area
Up to 3 unitsB. Minimum Net Lot
Area
9,300 square feet
Over 3 2,000 additional square feet per dwelling unit
CB. Minimum Lot Width (measured at
front building setback line)
70 feet at front building setback line

19.36.070: Building Development Regulations
Table 19.36.070: Building Development Regulations
Projects with up to four units Projects with five or more units A. Maximum Lot
Coverage
40% of net lot area, unless
inconsistent with Govt. Section
65913.11
55% of net lot area, unless inconsistent with
Govt. Section 65913.11
B. Maximum Height Limited to two stories (not to exceed 30 feet)
Not to exceed 30 feet unless a different height
is identified by General Plan Figure LU‐2.

C. Setbacks and Stepbacks
Projects with up to four units Projects with five or more units First Floor Second Floor or
Portions of building
24 feet or higher
First Floor Upper Floors

1. Front‐yard 20 feet  If located on
property abutting
an arterial or major
collector, 35 feet
from face of street
curb
 All other properties:
20 feet from
property line
 If located on
property abutting an
arterial or major
collector:
 Floor 2 and 3: 35
feet from face of
street curb
 Floors 4 and
above (if allowed
per General Plan
height): 20 feet
from property
line.
 All other properties
20 feet from property
line
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Table 19.36.070: Building Development Regulations
Projects with up to four units Projects with five or more units

2.   Side‐yard
i.   Interior side 6 feet 9 10 feet for
second floor.18
feet for portions
of building 24
feet or higher
10 feet 12 feet
ii.   Street side 12 feet 18 feet for portions
of building 24 feet
or higher
12 feet 18 feet

3. Rear‐yard 20 feet or 20% of
the lot depth,
whichever is
greater. Main
building may
encroach as close
as 10 feet to rear
lot line if a useable
rear‐yard setback
area of not less
than twenty times
the width of the
lot is maintained.
20 feet or 20% of
the lot depth,
whichever is
greater.
20 feet or 20% of the
lot depth, whichever is
greater. Main building
may encroach as close
as 10 feet to rear lot
line if a useable rear‐
yard setback area of
not less than twenty
times the width of the
lot is maintained.
20 feet or 20% of the
lot depth, whichever
is greater.

Additional 10 feet for
floors more than one
story higher than any
adjacent primary
residential structures.

D. Private Outdoor Space
(e.g., – Balconyies, Patio,
Deck) may be provided
to fulfill this standard.
 Approximately 20% of each unit’s
gross first‐floor area
 10% of each unit’s gross floor area
Minimum Size: 60 square feet per unit
Minimum Clearance: 6 feet clear in any
dimension
E. Second Upper Story Decks and Patios Setbacks

1. Front‐yard ‐ 17 feet N/A N/A

2. Side‐yard ‐ 15 feet N/A N/A

3. Rear‐yard ‐ 20 feet N/A N/A
F. Universal Design
Standards
New multiple‐family development of five or more units shall include:

1. At least one no‐step entry point per building and unit;

2. Interior and exterior doors with 32 inches of clear passage for each unit; and

3. One bathroom for each unit that is able to be maneuvered in a wheelchair per Americans with Disabilities Act standards.

FG. Corner Triangle and
Sidewalk Site Triangle
Shall remain free and clear of all buildings or portions thereof 190
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Table 19.36.070: Building Development Regulations
Projects with up to four units Projects with five or more units GH. Visual Privacy
Intrusion
Minimize privacy intrusion into all or
a significant portion of private
outdoor spaces, or interior spaces
through the use of windowless walls,
atria, enclosed courtyards, and
buildings oriented to public and
private streets, or other techniques
which rely upon structural design
rather than mitigation relying solely
upon a landscaping solution.

N/A
IH. Fences Must comply with regulations in Chapter 19.48 JI. Parking No parking shall be permitted in a setback area where the lot adjoins property located in a single‐family (R‐1) zoning district.

Must comply with regulations in Chapter 19.124
K. Access No more than two vehicular entries/exits per street frontage between the residential development and the public right‐of‐way.

L. Improvements and Covenants for Common Area

1. Completion/Bonding Improvement of the common areas shall be completed by the developer and shall be subject to bonding and other procedures in the same manner as required for street improvements by Title 18, Subdivision.

2. Maintenance a. Shall be the responsibility of the property owner or homeowners association to which the common areas are deeded.
b. In the event private roads, driveways, parking areas, walkways, landscaping or buildings are not maintained to applicable City standards, the City may, after notice and advertised public hearing, effect the necessary maintenance, with the cost to be a lien on the property.

3. Declaration of
Covenants,
Conditions and
Restrictions, where
applicable
a. Shall include a clause to ensure that the CC&R’s shall not be modified unless required to by state law, without review of the City,
b. Shall be reviewed by the City Attorney, prior to recordation, to determine its compatibility with the intent and conditions as set forth herein.

4. Articles of
Incorporation and
Other Instruments
Related to
Homeowners’
Association, where
applicable
a. Shall be subject to the review and approval of the City Attorney b. Shall include a clause to indicate that the Association cannot be dissolved without written approval and authorization from the City.
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19.38: Multiple‐Family Residential (R‐4) Zones

19.38.010: Purpose
The purpose ofthis chapteris to provide a zoning district permitting high/very high, very high, and highest density multiple‐family residential uses and to establish the regulations pertaining thereto. These regulations are intended to guide future development and ensure a healthy functional environment for future residents within the proposed development and for adjoining parcels. The R‐4 zoning district may be combined with the townhome (TH) zoning district in accordance with Chapter 19.46.

19.38.020: Applicability of Regulations
A. No building, structure, or land shall be used, and no building or structure shall be hereafter erected, structurally altered, or enlarged in a R‐4 zoning district other than in conformance with the provisions of this chapter and other applicable provisions of this title.

B. Reasonable Accommodation: Notwithstanding 19.38.020(A) above, a request for reasonable accommodation may be made by any person with a disability, when the strict application of the provisions in this chapter acts as a barrier to fair housing opportunities, pursuant to Chapter 19.52.

19.38.030: Permitted, Conditional, and Excluded Uses
Permitted, Conditional, and Excluded Uses on property zoned R‐4, are identified in Section 19.20.020.

19.38.040: Development Plan Required
An application for development on a parcel presently zoned R‐4 shall require submittal of all materials identified in Chapter 19.12. The Community Development Director may establish development plan application requirements beyond those required by Chapter 19.12.

19.38.050: Permit Required for Development
A. No building permit may be issued for development on a parcel presently zoned R‐4 until a development plan is approved as part of a development permit pursuant to Chapters 19.12 and 19.156. Housing development projects on Priority Housing Sites considered by‐right pursuant to state law shall be processed as identified in Chapter 19.12.

B. Signs, landscaping or parking plans and minor modifications to buildings may not be erected, structurally altered, enlarged, or modified without permits pursuant to Chapters

19.12 and 19.168.
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19.38.060: Site Development Regulations
Table 19.38.060 sets forth the rules and regulations pertaining to the Development Regulations for the development of property zoned R‐4.

Table 19.38.060 Site Development Regulations
A. Density 1. Maximum as designated in the General Plan.

2. Development on sites with a required minimum density shall meet the minimum density established on the General Plan Land Use map.

B. Minimum Net Lot Area 12,000 square feet
C. Minimum Lot Width (measured at
front building setback line)
70 feet

19.38.070: Building Development Regulations
Table 19.38.070 sets forth the rules and regulations pertaining to the development of multiple‐ family residential structures on property zoned R‐4.

Table 19.38.070: Building Development Regulations
A. Maximum Lot
Coverage
55% of net lot area, unless inconsistent with Section 65913.11.

B. Maximum Height Limited to five stories (not to exceed 70 feet) C. Setbacks and Stepbacks
First Floor Upper Floors

1. Front‐yard  If located on property
abutting an arterial or
major collector, 35 feet
from face of curb.
 All other properties: 12
feet from property line.
 If located on property abutting an arterial or
major collector:
 Floor 2 and 3: 35 feet from face of curb; and
 Floors 4 and above: 18 feet from property
line.
 All other properties: 18 feet from property
line

2.   Side‐yard
i.   Interior side 10 feet 10 feet and
Additional 10 feet for floors more than one
story higher than any adjacent primary
residential structure.
ii.   Street side 12 feet

3. Rear‐yard 30 feet  Floors 2 and 3: 30 feet; and  Floors 4 and above: Additional 15 feet.
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D. Private Outdoor
Space (e.g., Balcony,
Patio, Deck)
Minimum Size: 48 square feet per unit
Minimum Clearance: 4 feet clear in any dimension
E. Universal Design
Standards
New multiple‐family development shall include:

1. At least one no‐step entry point per building and unit;

2. Interior and exterior doors with 32 inches of clear passage for each unit; and

3. One bathroom for each unit that is able to be maneuvered in a wheelchair per Americans with Disabilities Act standards.

F. Corner Triangle
and Sidewalk Site
Triangle
Shall remain free and clear of all buildings or portions thereof.

G. Fences Must comply with regulations in Chapter 19.48 H. Parking No parking shall be permitted in a setback area where the lot adjoins property located in a single‐family (R‐1) zoning district.

Must comply with regulations in Chapter 19.124
I. Access No more than two vehicular entries/exits per street frontage between the residential development and the public right‐of‐way.

J. Improvements and
Covenants for
Common Area
See Section 19.36.070(L)

19.46: Townhome (TH) Combining District

19.46.010: Purpose
The townhome (TH) combining district is intended to modify the regulations of the multiple‐ family residential (R‐3 and R‐4) zoning districts to permit townhome development in those districts, primarily in conjunction with multiple‐family development, and to establish specific townhome development standards, upon rezoning to the townhome combining district.

19.46.020: Applicability of Regulations
A. The townhome combining district may only be combined with the R‐3 or R‐4 zoning district, in accordance with Chapters 19.36 and 19.38 of the Zoning Ordinance. The townhome combining district shall apply to properties designated on the zoning map with “TH” following the multiple‐family residential (R‐3 or R‐4) zoning district designation (e.g., R‐3/TH or R‐4/TH. The site development regulations (Section 19.46.060) and building development regulations (Section 19.46.070) established by this chapter shall apply to townhomes in lieu of the comparable provisions established by the underlying R‐3 or R‐4 zoning districts. 194
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B. No townhome(s) shall be erected, structurally altered, or enlarged in a TH combining district other than in conformance with the provisions of this chapter and other applicable provisions of this title.

C. Reasonable Accommodation: Notwithstanding 19.46.020(B) above, a request for reasonable accommodation may be made by any person with a disability, when the strict application of the provisions in this chapter, acts as a barrier to fair housing opportunities, pursuant to Chapter 19.52.

19.46.030: Permitted, Conditional, and Excluded Uses
Permitted, Conditional, and Excluded Uses on property zoned R‐3/TH or R‐4/TH are identified in Section 19.20.020.

19.46.040: Development Plan Required
Development in the townhome combining district shall adhere to the requirements and procedures of the Municipal Code in Chapter 19.12 and those established by the underlying multiple‐family zoning district in Sections 19.36.040 and 19.38.040.

19.46.050: Permit Required for Development
Permitting in the townhome combining district shall adhere to the requirements and procedures established by the underlying multiple‐family zoning district.

19.46.060: Site Development Regulations
Table 19.46.060 sets forth the rules and regulations pertaining to the Development Regulations for townhome development of property zoned R‐3/TH or R‐4/TH.

Table 19.46.060 Site Development Regulations
A. Density 1. Maximum as designated in the General Plan.

2. Development on sites with a required minimum density shall meet the minimum density established on the General Plan Land Use map.

B. Maximum Lot or Air Parcel Width
for each townhome (measured at front
building setback line)
25 feet

19.46.070: Building Development Regulations
Table 19.46.070 sets forth the rules and regulations pertaining to the development of townhome residential structures on property zoned R‐3/TH or R‐4/TH. 195
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Table 19.36.0870: Townhome Building Development Regulations A.   Maximum Lot
Coverage
55% of net lot area prior to development
B. Maximum Floor
Area Ratio
70 85% of net lot area prior to development
C.   Maximum
Height
Limited to three stories (not to exceed 30 feet)
D.   Setbacks and Stepbacks (Measured from property lines prior to development) First and Second Floor Third Floor

1. Front‐yard Per underlying multiple‐family zoning district

2.   Side‐yard
a.   Interior side 6 feet 6 feet and
Additional 10 feet if more than one story higher
than any adjacent primary residential structure.
b.   Street side 12 feet

3. Rear‐yard 15 feet
E. Private Outdoor
Space (e.g., Balcony,
Patio, Deck)
See underlying multiple‐family zoning district.

F. Design
Requirements

1. Townhome design visible from or fronting the public right of way shall include at least two of the following features:
a) Front Architectural Feature (e.g., stoop, front porch). b) Stairway with at least three stairs leading to the front entrance. c) Pitched roof with a slope of at least 3:12.

2. Vehicular parking shall not be located along primary frontage.

G. Corner Triangle
and Sidewalk Site
Triangle
Shall remain free and clear of all buildings or portions thereof.

H. Fences See underlying multiple‐family zoning district.

I. Parking Must comply with townhome parking regulations per Chapter 19.124.

J. Access No more than two vehicular entries/exits per street frontage between the residential development and the public right‐of‐way
K. Improvements
and Covenants for
Common Area
Per underlying R‐3 or R‐4 zoning district.
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19.50: Emergency Shelters

19.50.010: Applicability of regulations
This chapter establishes the criteria and standards for Emergency Shelters.

19.50.020: Criteria and Standards
A. Permanent Emergency Shelters shall satisfy all of the following requirements:

1. Occupancy is limited to six months in any 12‐month period per occupant.

2. Shelter shall be available to any individual or household regardless of their ability to pay, provided that all other conditions in Section 19.50.020(B) are met.

3. The shelter shall not be located closer than 300 feet to another permitted emergency shelter.

4. The shelter operator shall provide security during hours that the emergency shelter is in operation.

5. The shelter operator shall provide sufficient parking stalls per Section 19.124.040 to accommodate all staff working in the emergency shelter, provided that the standards do not require more parking for emergency shelters than other residential or commercial uses within the same zoning district.

6. The shelter operator shall provide on‐site management and a management plan that details the following:
a. A list of services that are provided to guests.
b. Hours of operation for the shelter, intake, and any other ancillary services provided. c. Number of staff present at any time.
d. Number of shelter beds.
e. Number of parking stalls provided on site.
f. Description and/or floor plan indicating the size and location of the waiting and intake areas.

B. Rotating Emergency Shelters shall satisfy all of the following requirements:

1. Requirements identified in subsection 19.50.020(A)(2‐5).

2. Occupancy is limited to two months in any 12‐month period at any single location.

3. The hours of operation shall not exceed six p.m. to seven a.m.

4. The shelter shall provide on‐site management and a management plan that details the criteria identified in subsection 19.50.020(A)(6).

5. If the shelter is a Safe Car Park, the operator shall in addition, identify:
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a. The location of the parking stalls that will be used for program guests. b. Any additional temporary structures placed on the site, such as mobile bathrooms and shower facilities, must be removed when the site is no longer used as a Safe Car Park shelter.

19.50.030: Interpretation
If any portion of this Chapter 19.50 conflicts with State law as mentioned above, or other applicable state law, State law shall supersede this Chapter. Any ambiguities in this section shall be interpreted to be consistent with State law. All code references in this Chapter include all successor provisions.

19.50.040: Applicable Development Regulations and Permits Required Any structure used to provide an emergency shelter shall meet the requirements of the underlying zoning district and shall be reviewed ministerially.

19.76: Public Building (BA), Quasi‐Public Building (BQ), and Transportation (T) Zones

19.76.030: Permitted, Conditional and Excluded Uses in BA, BQ, and T Zones Table 19.76.030 ‐ Permitted, Conditional, and Excluded Uses in BA, BQ, and T Zones Uses Zoning Districts

BA BQ T

2.   Rotating homeless shelter provided that the following conditions in Chapter 19.50 are met.:
a.   Shelter is located within an existing church structure; b.   The number of occupants does not exceed twenty‐five; c.   The hours of operation do not exceed six p.m. to seven a.m.; d.   Adequate supervision is provided;
e.   Fire safety regulations are met; and
f.   Operation period does not exceed two months in any twelve‐ month period at any single location.
‐ P ‐

3.   Permanent emergency shelter provided the following conditions in Chapter 19.50 are met.:
a.   Section 19.76.030(2)(b), (d), (e);
b.   A management plan is provided which includes a detailed operation plan.
c.   Shelter is available to any individual or household regardless of their ability to pay; and
d.   Occupancy is limited to six months or less.
‐ P ‐
Key:

P – Permitted Use
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‐ ‐ Not Allowed
CUP‐Admin. – Conditional Use Permit issued by the Director of Community Development CUP‐PC – Conditional Use Permit issued by the Planning Commission CUP‐CC – Conditional Use Permit issued by the City Council Ex – Excluded Uses

19.80: Planned Development (P) Zones

19.80.030: Establishment of Ddistricts – Permitted and Cconditional Uuses and Ddevelopment Sstandards.

B. All P districts shall be identified on the zoning map with the letter coding ʺPʺ followed by a specific reference to the general type of use allowed in the particular planned development zoning district. For example, a planned development zoning district in which the uses are to be general commercial in nature, would be designated ʺP(CG).ʺ A planned development zoning district in which the uses are intended to be a mix of general commercial and residential would be designated P(CG, Res) or any combination of residential zoning district such as P(CG, R‐3), P(CG, R‐4), or if combined with the TH combining district, P(CG,R‐3/TH) or P(CG, R‐4/TH).

C. Permitted uses in a P zoning district shall consist of all uses which are permitted in the zoning district referenced following the letter ʺPʺ, unless a conceptual development plan, specific plan, or other zoning plan, further restricts the uses, subject to the limitations of state law. For example, the permitted uses in a P(CG) zoning district are the same uses which are permitted in the CG zoning district. The permitted uses in the P(Res) zoning district are the same uses which are permitted in the type of housing structure that the use is going to occupy (i.e., follow R‐1 permitted uses for single family homes in P(Res) zoning district, follow R‐3 permitted uses in multiple‐family units in P(Res) zoning district). For sites with a mixed‐use residential designation, Section 19.80.030E shall also apply.

E. For sites with a mixed‐use residential designation the following shall apply:
1 For sites in the Monta Vista Village Special Area, residential shall be a permitted use.

2. If a site is listed as a Priority Housing Site in the Cityʹs adopted Housing Element of the General Plan, then residential development that does not exceed the consistent with the maximum and minimum density specifiednumber of units designated for the site in the Housing Element shall be a permitted use.

3. Residential development on sites not designated as Priority Housing Sites in the Cityʹs adopted Housing Element of the General Plan and residential development on a Priority Housing Site that exceeds the number of units designated for that Priority Housing Site shall be a conditional use, except as provided in subsection 5, below.

3.4. Priority Housing Sites shall be shown on the Cityʹs zoning map. 199
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45. For sites zoned P(R‐3, CG, R‐3), P(CG, R‐3/TH), P(CG, R‐4), or P(CG, R‐4/TH), no conceptual or definitive plans shall be required to establish permitted and conditional uses.

Multiple‐family residential use is the primary permitted use, with all other permitted uses in that residential zoning district allowed as well. Commercial uses may be incorporated into the development on the ground first floor but shall not be the primary permitted use of the structure.

F. The development standards and regulations for residential only and mixed‐use residential projects in a P zoning district shall consist of the following:

1. All relevant development standards and regulations in the General Plan and any adopted specific plan, conceptual development plan, definitive plan, or other zoning plan, and, to the extent not addressed in those plans, all development standards and regulations for the zoning district referenced following the letter ʺP.ʺ The development standards and regulations for a residential development are those established for the R‐3 or R‐4 zoning districts and/or the TH combining district.

2. In implementing subsection (1) above, mixed‐use projects shall comply with the development standards and regulations in the R‐3 or R‐4 zone and/or the TH combining district, and the referenced zoning district by proposed use. For example, residential portions of the project shall comply with the development standards and regulations in the R‐3, R‐4, and/or TH zoning, whichever is referenced; commercial portions of the project shall comply with the development standards and regulations in the CG zoning, industrial portions of the project shall comply with the development standards and regulations in the ML/MP zoning, whichever is referenced, and office portions of the project shall comply with the development standards and regulations in the OA/OP zoning, whichever is referenced. In the event of any conflicts, the most restrictive standard or regulation shall apply.

19.100: Accessory Buildings/Structures
Table 19.100.030: Site Development Regulations

2. Detached Accessory Buildings/ Structures in R‐1, RHS, A, A‐1, and R‐2, R‐3, R‐4, and TH Zoning Districts (Cont.)
a. In R‐1, RHS, R‐2, A and A‐1 zones:
i. Area of Accessory Buildings/Structures,
not including garage space
 Accessory Dwelling Units ‐ Limited to gross building
area as per Section 19.112.030 (A)Chapter 19.112
 All others – Limited to development standards in
underlying zoning
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19.124: Parking Regulations

19.124.040: Regulations for Off‐Street Parking
R. Parking Space Dimension Chart. Parking space dimensions shall be as shown in Table

19.124.040(A):

Table 19.124.040(A)
Land Use Zones Parking Ratio(2) Bicycle
Parking
Bicycle
Parking
Class(4)
Stall
Dimensions (3)
Residential
Single‐Family R‐1, /RHS,
/ A‐1, or /P 4/DU (2 garage + 2 open)
10 x 20 ea.

Small Lot Single‐familyCluster
Ddevelopment, Townhouse R1C or P 2.8/DU (2 garage + 0.8 open)
Duplex R‐2 3/DU (1 ½ enclosed + 1
½ open)
Townhome R‐3/TH, R‐
4/TH, or P
1/DU (covered or
garage)

9.5 x 20 ea.

Medium to Highest Density
Multiple‐Family, R‐3/, R‐4,
or P
12/DU (1 covered,
structured, + 1or open)
1 space per 2
residential
units; and
Class I
Medium to Highest Density
Multiple Story Condominium
1 space per
10 residential
units
Class II
Public/Quasi‐Public/Agriculture
Churches, Clubs, Lodges,
Theaters BQ or /CG
1/4 seats +1/employee
+1/special‐purpose
vehicle
2% of seats.

Minimum
two spaces
Class II
Uni‐size
Schools and School Offices BA or /BQ
1/employee + 1/56 sq. ft.
multipurpose room + 8
visitor spaces/school +
1/3 students at senior
H.S. or college level
1 space per 5
students Class II
Emergency Shelters
BQ
1/employee 1 space for
every 5 beds Class II
Uni‐size
R‐4 9.5 x 20 ea.

Gyms, Auditoriums, floor area
used Skating Rinks for seating
without fixed seats
BA or /BQ 1/56 sq. ft. purposes +
1/employee
1/5,000 sq. ft.

Minimum
two spaces
Class II Uni‐size
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Table 19.124.040(A)
Land Use Zones Parking Ratio(2) Bicycle
Parking
Bicycle
Parking
Class(4)
Stall
Dimensions (3)
Industrial
Office/Prototype
Manufacturing ML or /OA 1/285 sq. ft.
1/1,250 sq. ft.
or 1/15
employees,
whichever is
more
restrictive.

Class I Uni‐size
Office
Corporate/
Administrative/General Multi‐
Tenant
CG or /OP 1/285 sq. ft. 1/1,250 sq. ft.
or 1/15
employees,
whichever is
more
restrictive.

Class I Uni‐size

19.156: Development Permits, Conditional Use Permits, and Variances

19.156.040: Planned Development Permit and Conditional Use Permit – Findings and Conditions
A. The decision maker may grant a planned development permit for projects that are not a housing development project, or a conditional use permit, only if all of the following findings are made:

1. The proposed development and/or use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience;

2. The proposed development and/or use will be located and conducted in a mannerin accord with the Cupertino Comprehensive General Plan, any applicable specific plans, underlying zoning regulations, and the purpose of this title and complies with the California Environmental Quality Act (CEQA).

B. The decision maker may grant a development permit for a housing development project only if all of the following findings are made:
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1. The proposed residential development and/or use will be located and conducted in a manner consistent with any applicable Government Code requirements, the Cupertino General Plan, any applicable specific plans, and underlying zoning regulations of the Municipal Code, and complies with the California Environmental Quality Act (CEQA).

2. Notwithstanding subsection 19.156.040B(1), the Director of Community Development may deny a housing development project proposed under this Section with a written finding based upon a preponderance of evidence, that the proposed housing development project would have a specific adverse impact, as defined and determined in Government Code Section 65589.5(d)(2), upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.

19.168: Architectural and Site Review

16.168.030: Findings
B. For housing developments eligible for by‐right approval as defined by Govt. Code section 65583.2(i), low‐barrier navigation centers and supportive housing projects with up to 50 units, the following findings must be made:

1. The project is consistent with any applicable Government Code requirements, the Cupertino General Plan, any applicable specific plans, all objective Municipal Code requirements, and objective design standards.

2. Notwithstanding subsection 19.168.030B(1), the Director of Community Development may deny a housing development project proposed under this Section with a written finding based upon a preponderance of evidence, that the proposed housing development project would have a specific adverse impact, as defined and determined in Government Code Section 65589.5(d)(2), upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.

14.15: Landscape Ordinance

14.15.020: Applicability
Table 14.15.020
Type of Permit Total Landscape
Area
Requirement
Planning Permit or Grading Permit
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Commercial, industrial,
office, multiple‐family
residential, townhome,
public and institutional
projects
<2,500 s.f. Prescriptive Compliance Application (Appendix A) or Landscape Documentation Package (Sec. 14.15.050)
>2,500 s.f. Landscape Documentation Package (Sec. 14.15.050)

17.04: Standard Environmental Protection Requirements

17.04.050: Standard Environmental Protection Permit Submittal Requirements.

A. Air Quality Technical Requirements

1. Control Diesel Particulate Matter from Non‐Residential Projects During Operation.

Applicants for new non‐residential land uses within the city that either have the potential to generate 100 or more diesel truck trips per day or have 40 or more trucks with operating diesel‐ powered Transport Refrigeration Units (TRUs), or and are within 1,000 feet of a sensitive land use (e.g., residential, schools, hospitals, nursing homes), as measured from the property line of the project to the property line of the nearest sensitive use, shall:
[no changes after this]
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RESOLUTION NO._________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING AMENDMENTS TO THE HEART OF THE CITY SPECIFIC PLAN

AND THE BELOW MARKET RATE HOUSING MITIGATION MANUAL

TO ALLOW IMPLEMENTATION OF THE HOUSING ELEMENT

AND MEET THE REQUIREMENTS OF STATE LAW
SECTION I: PROJECT DESCRIPTION
Application No: SPA‐2023‐001, CP‐2024‐002
Applicant: City of Cupertino
Location: Citywide/Various locations
SECTION II: RECITALS
WHEREAS, state law requires the City to prepare and adopt an updated Housing Element every eight years to accommodate its fair share of housing and identify housing needs, resources and opportunities;
WHEREAS, the City Council adopted the draft Housing Element on May 14, 2024 with adoption of Resolution no. 24-039; and
WHEREAS, the City entered into a Stipulated Judgment dated January 8, 2024 pursuant to a lawsuit related to adoption of the Housing Element which included requirements for coming into compliance with state housing element law and exempted the City from the California Environmental Quality Act (“CEQA”) pursuant to Government Code section 65759; and
WHEREAS, pursuant to Government Code 65759, the Heart of the City Specific Plan Amendments, which are related to the rezoning for Priority Housing Sites, to adopt the Housing Element and associated amendments to the General Plan zoning are fully described and analyzed in the Environmental Assessment, which is incorporated into the General Plan as Appendix G; and
WHEREAS, the Housing Element contains strategies for achieving these goals and policies, including implementation of the Cityʹs Residential Housing Mitigation Program described in Strategy HE 2.3.3, which requires projects with five or more new units to provide units and projects with four or fewer new units to pay an in‐lieu of BMR unit fee; and
WHEREAS, Cupertino Municipal Code Section 19.172.030 authorizes the City Council to adopt rules and regulations for the purposes of carrying out the administration of the Residential Housing Mitigation Program; and
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WHEREAS, the City Council has implemented Section 19.172.030 through the adoption of the Cityʹs BMR Housing Mitigation Program Procedural Manual, which was last amended on May 19, 2020; and
WHEREAS, the City Council desires to amend the BMR Housing Mitigation Program Procedural Manual to conform the BMR Housing Mitigation Manual with the adopted 2023‐2031 Housing Element;
WHEREAS, on June 11, 2024, the Planning Commission recommended on a 4-0 vote (Absent: Fung) that the City Council adopt the Specific Plan Amendment (SPA‐2023‐001) and Below Market Rate Housing Mitigation Manual (CP‐2024‐002) in substantially similar form to the Resolution presented (Resolution No. 2024‐11); and WHEREAS, all necessary public notices having been given as required by the City of Cupertino Municipal Code and the Government Code, on July 2, 2024, the City Council held a public hearing to consider the Specific Plan Amendment and the Below Market Rate Housing Mitigation Manual; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for this Resolution.

SECTION III: RESOLUTIONS
NOW, THEREFORE, BE IT RESOLVED:

After careful consideration of the maps, facts, exhibits, testimony and other evidence submitted in this matter, and based on the preceding findings, the City Council hereby:

1. Finds that the foregoing recitals are true and correct; and

2. Adopts amendments to the Heart of the City Specific Plan text and figures as shown in Exhibit SPA‐1, which is incorporated herein by reference as part of this resolution;

3. Authorizes staff to make non‐substantive and/or grammatical changes to figures and/or text for purposes of internal consistency prior to publication of the Specific Plan.

NOW, THEREFORE, BE IT FURTHER RESOLVED:

The foregoing recitals are true and correct and are included herein by reference as findings.

PASSED AND ADOPTED this __th day of July 2024, at a Regular Meeting of the City Council of the City of Cupertino, State of California, by the following roll call vote:

AYES:

NOES:
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ABSENT:

ABSTAIN:

SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia
City Clerk
________________________
Date
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Exhibit SPA‐1

DEVELOPMENT STANDARDS AND DESIGN GUIDELINES
Area and Special Centers Map
This Heart of the City Area and Special Centers Map (Figure 1) defines the boundaries of the Heart of the City Specific Plan area and the Special Centers within these boundaries. This map also identifies the primary and supporting land uses for each Special Center in accordance with the Cupertino General Plan, and a variety of land use opportunities of well planned and designed commercial, office and residential development, enhanced activity nodes, and safe and efficient circulation and access for all modes of transportation between activity centers that help focus and support activity in the centers. The Heart of the City Area and Special Centers Zoning Map (Figure 2) identifies the Zoning for each parcel within these boundaries. The applicable standards for these parcels are identified in the Development Standards and Design Guidelines Chapter later in this document. Note: Update Figure 2 is located at the end of the text edits indicated here.

Development Standards

1.01.020 Land Use and Zoning – Permitted and Conditional Uses The zoning and land uses for properties shall comply with the land use and zoning maps in Figures 1 and 2 as follows: Note: Update Figure 2 is located at the end of the text edits indicated here.

B. Residential – Residential density shall be per the General Plan Figure LU‐2, Land Use, and zoning maps. In mixed residential and commercial developments, the preferred location for residential units shall be behind primary street fronting retail/commercial uses or above the ground level on multistory buildings. The amount of building space devoted to retail/commercial uses shall be such that the retail/commercial uses shall have a viable and substantial retail component.

1.01.030 Building Height, Setbacks and Orientation
Properties zoned multiple‐family residential (R‐3 or R‐4), or any combination zoning with TH zoning shall comply with the height, setback, and orientation development standards established by the Municipal Code. Where the Municipal Code is silent or refers to the Specific Plan on development or design standards, the Heart of the City standards will apply.

Development regulations for all other properties will be as follows:

A. Height‐…

1.01.040 Site Development and Parking
Properties zoned multiple‐family residential (R‐3 or R‐4), or any combination zoning with TH zoning shall comply with the site development and parking standards established by the Municipal Code. Where the Municipal Code is silent or refers to the Specific Plan on 208
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Exhibit SPA‐1
development or design standards, the Heart of the City standards will apply. Development regulations for all other properties will be as follows:

A. Access…
Design Guidelines

2.01.010 Description
Properties zoned multiple‐family residential (R‐3 or R‐4), or any combination zoning with TH zoning, thereof shall comply with the design standards established by the Municipal Code or any other objective design standards adopted, whether by Council resolution or otherwise.

Where the Municipal Code is silent on or refers to the Specific Plan on design, the Heart of the City standards will apply. Design guidelines promote buildings that assume some of the communication functions of signs. for all other properties will be as follows:

A. Building Increment‐…
APPENDIX B ‐ General Plan Policies Related to the Heart of the City Plan Area
The Community Vision 2040 policies and strategies under Goals LU‐13.1 through LU‐13.8 apply to the Heart of the City Specific Plan Area and subareas.

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8 City of Cupertino - Heart of the City Specific Plan
Figure 2: Heart of the City Area and Special Centers Zoning Map 210
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Below Market Rate (BMR) Housing Mitigation Program
Procedural Manual
EXHIBIT CP-1
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Amended and Adopted by City Council
July 2, 2024
Resolution No. 24‐XXXX

CITY OF CUPERTINO HOUSINGDIVISION

DEPARTMENT OFCOMMUNITYDEVELOPMENT
10300 TORRE AVENUE
CUPERTINO, CA 95014
VOICE: (408)777‐3251
FAX: (408)777‐3330
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Table of Contents
1 Introduction........................................................................................................................................1 2 Housing Mitigation Program...........................................................................................................2

2.1 Applicability.................................................................................................................................2

2.2 Affordable Housing Mitigation Fee..............................................................................................2

2.2.1 Payment........................................................................................................................................2

2.2.2 Permitted Use of Fees...........................................................................................................3

2.3 Affordable Housing Units............................................................................................................3

2.3.1 Minimum Affordability of Residential Units.......................................................................3

2.3.2 Fractional Units...................................................................................................................4

2.3.3 Affordable Housing Plan......................................................................................................5

2.3.4 BMR Unit Design Requirements............................................................................................ 5

2.3.5 Initial Maximum Sales Prices and Rents of BMR Units .....................................................5

2.3.6 Terms of Affordability ..........................................................................................................7

2.3.7 Agreement between Developer and City ..............................................................................7 3 Mitigation Requirements of Non‐Residential Developments......................................................9

3.1 Requirements................................................................................................................................9

3.2 Non‐Residential Fee Calculations ................................................................................................9 4 Mitigation Requirements of Ownership Residential Developments .......................................10

4.1 Requirements .............................................................................................................................10

4.2 BMR Requirements for Developments with One (1) to Six (6)Four (4) Units .........................10

4.3 BMR Requirements for Developments with Seven (7)Five (5) or more Units ..........................10 5 Mitigation Requirements of Rental Residential Developments ................................................11

5.1 Requirements .............................................................................................................................11

5.2 Residential Rental Impact Fee Calculations ..............................................................................11 6 Mitigation Requirements for Mixed‐Use Projects ......................................................................12

6.1 Requirements .............................................................................................................................12

6.2 Mixed‐Use Mitigation Fee Calculations ....................................................................................12 7 Alternatives to BMR Requirements ..............................................................................................13

7.1 Options for Alternatives ............................................................................................................13

7.2 Housing Plan for Alternative BMR Requirements ...................................................................13 8 City Incentives ................................................................................................................................15

8.1 Density Bonus ...........................................................................................................................15

8.2 Financial Assistance ..................................................................................................................15

8.3 Fee Waivers ...............................................................................................................................15

8.4 Priority Processing ....................................................................................................................15

8.5 City Certification of Buyer and Tenant Eligibility ....................................................................15 213
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1. Introduction
In accordance with the City of Cupertino’s Housing Element, all new residential and/or non‐ residential developments are required to help mitigate project‐related impacts on affordable housing needs.

As required by Section 19.172.030 of the Cupertino Municipal Code, this manual establishes procedures for implementing the affordable housing mitigation provisions of the City’s Below Market Rate (BMR) Housing Mitigation Program.

A separate manual, the “Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units” establishes the procedures for the on‐going administration of the inventory of BMR units created by the City’s Residential Housing Mitigation Program. The City orits agent will administer the programs.
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1 Housing Mitigation Program

1.1 Applicability
A. The Non‐residential and Residential Housing Mitigation Programs are applicable to all non‐residential and/or residential projects that result in an increase of gross floor area (for fee‐based program) and/or the number of net new units in a development (for unit‐based program) with the following exemptions:

1. New gross floor area that is replacing demolished or destroyed gross floor area;

2. Existing space that is being rehabilitated, but not enlarged;

3. Governmental buildings;

4. Institutional buildings;

5. Demolition and rebuild of or additions to existing single family homes;

6. Accessory dwelling units and

7. Parking garages (this exemption does not apply to commercial paid‐parking garages).

The program has two components; a fee‐based program for certain types of development and a unit‐based program for other types of development.

1.2 Affordable Housing Mitigation Fee
A. Non‐residential and residential affordable housing mitigation fee amounts are set by the City Council for developments as outlined in Chapters 3, 4 and 5.

B. The Affordable Housing Mitigation Fee may not exceed the cost of mitigating the impact of the type of development on the need for affordable housing as supported by nexus studies that may be commissioned from time to time by the City Council.

C. The fee shall be adjusted annually using the Consumer Price Index (all items index for the San Francisco Bay Area).

D. The City will publish the most recently adopted housing mitigation fees annually in the fee schedule.

1.2.1 Payment
A. Fees shall be based on the fee schedule in effect on the date that the construction permit is issued by the City and shall be due and payable on the date of issuance of construction permits, unless otherwise required by state law.

B. In the event that the applicant is allowed to defer payment of fees and is issued construction permits, the fees shall be due and payable according to the fee schedule in effect on the date of fee payment, prior to first occupancy of the project, unless a negotiated Development Agreement allows otherwise. 216
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C. All fees shall be deposited into the City’s Below Market Rate (BMR) Affordable Housing Fund (AHF).

1.2.2 Permitted Use of Fees
A. Affordable housing mitigation fees deposited into the BMR AHF shall only be used for the provision of affordable housing in Cupertino.

B. The options for use of the fee revenue include, but are not limited to the following:

1. BMR Program Administration

2. Land Acquisition

3. New Construction

4. Acquisition and/or rehabilitation of buildings for permanent affordability

5. Preserving “at‐risk” BMR Units

6. Substantial Rehabilitation

7. Rental Operating Subsidies

8. Down Payment Assistance

9. Direct gap financing

10. Fair Housing
C. A portion of the BMR AHF will be targeted to benefit the following groups, to the extent that these target populations are found, to be consistent with the needs identified in the nexus study:

1. Extremely low‐income households and

2. Persons with special needs (such as the elderly, victims of domestic violence, and the disabled, including persons with developmental disabilities).

1.3 Affordable Housing Units
Affordable housing unit requirements are set by the City Council.

1.3.1 Minimum Affordability of Residential Units
A. When a development provides Ownership Below‐Market‐Rate (BMR) units, the affordability requirements for units shall be as follows:

1. Fifty percent (50%) of BMR units as median‐income and fifty percent (50%) as moderate‐income.

2. If a single BMR unit is provided, it shall be designated for median income.

B. When a development proposes to provide on‐site Rental BMR units, the affordability requirements for units shall be as follows:
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1. Sixty percent (60%) of BMR units as very low‐income and forty percent (40%) as low‐income.

2. If a single BMR unit is provided, it shall be designated for very‐low income.

C. When the calculations in A or B (above) result in an odd number, the “extra unit” shall benefit the median‐income group for Ownership BMR units and the very low‐income group for on‐site Rental BMR units.

Affordability of Units – Example
OwnershipBMRUnits Rental BMR Units*
# of BMR Units
Required*
# of Median
IncomeUnits
# of Moderate
IncomeUnits
# of Very‐Low
IncomeUnits
# of Low Income
Units
1 1 0 1 0
4 2 2 2 2
9 5 ** 4 5 4***
* See Chapter 7 for BMR rental units.
** See Section 2.3.1 for extra unit
*** See Section 2.3.2 forfractional units

1.3.2 Fractional Units
A. When computations for the number of required BMR units result in fractional units, the developer’s obligations shall be as follows:

1. 0.00 ‐ 0.49 of a unit: Pay an in‐lieu fee for the fractional unit in compliance with Section 2.2.1.

2. 0.50 ‐ 0.99 of a unit: Round up and provide one additional BMR unit.

B. Determination of the in‐lieu fee for fractional units:

1. Determine the total Housing Mitigation Fee for the entire project (as though impact fees will be paid rather than on‐site units provided.) The Housing Mitigation Fee for the project is calculated by multiplying the gross floor area of the project by the applicable affordable housing mitigation fee based on the fee schedule in effect.

2. Determine the Housing Mitigation Fee per affordable unit by dividing the total Housing Mitigation Fee as calculated in B1 (see above) by the total number of required affordable units (even if fractional).

3. Determine the in‐lieu fee owed for the fractional unit by multiplying the Housing Mitigation Fee per affordable unit as calculated in B3 (see above) by the fractional amount.
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Example
Residential project: 42 units; BMR requirement = 8.4 units Gross Floor Area/home = 3,000 sq. ft. (excluding exemptions) On‐siterequirement = 8 BMR units; In‐lieu fee requirement = 0.4 unit Affordable housing mitigation fee = $20/sq. ft (assumed) In‐lieu fee calculated asfollows:

Step 1: Total Housing Mitigation Fee = 42 units x 3,000 sq. ft. x $20/sq. ft. = $2,520,000.

Step 2: Impact fee per affordable unit = $2,520,000 ÷ 8.4 BMR units = $300,000 per BMR unit.

Step 3: In‐lieu fractional impact fee = $300,000 x 0.4 = $120,000.

Note: Thefee calculation and estimates above are examples only and may not reflect actual fees.

1.3.3 Affordable Housing Plan
A. For projects that propose BMR units, the applicant shall submit an “Affordable Housing Plan,” describing how a development project will comply with the Cityʹs BMR requirements, with the application for the first approval of the project.

B. The plan shall identify the BMR units or parcels in the development.

C. If alternatives are proposed in compliance with Chapter 7, the plan shall identify how the proposal is equivalent to the BMR requirements of Chapter 4.

D. An applicant may submit a request for a waiver or modification of the Cityʹs BMR requirements concurrently with the application forthe first approval of the project, based upon a showing that applying the requirements would result in an unconstitutional taking of property or would result in any other unconstitutional result. The request must set forth in detail the factual and legal basis for the claim.

The request for the waiver or modification will be processed concurrently with the affordable housing plan and all other permits required for the project.

E. The decision‐making body with authority to approve the project shall review and may approve, conditionally approve, or deny the Affordable Housing Plan.

However, the City Council shall review and may approve, conditionally approve, or deny an Affordable Housing Plan that proposes alternatives to the BMR requirements of Chapter 3, 4, and/or 5 or that requests a waiver or modification of the BMR requirements. The waiver or modification may be approved only to the extent necessary to avoid an unconstitutional result, based on the City Attorneyʹs legal advice, after adoption of written findings based on legal analysis and substantial evidence. If a waiver or modification is granted, any change in the project will invalidate the waiver or modification, and a new application will be required for a waiver or modification.
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1.3.4 BMR Unit Design Requirements
A. BMR units shall be comparable to market rate units in terms of unit type, number of bedrooms per unit, quality of exterior appearance and overall quality of construction.

B. BMR unit size should be generally representative of the unit sizes within the market‐rate portion of residential project.

C. Interior features and finishes in affordable units shall be durable, of good quality and consistent with contemporary standards for new housing.

D. The BMR units shall be dispersed throughout the residential project.

1.3.5 Initial Maximum Sales Prices and Rents of BMR Units A. For Sale BMR Units
The maximum initial sales prices of BMR units will be determined by the City, or its agent, based on the maximum affordable housing cost provisions of Section 50052.5 of the California Health and Safety Code and the most recent published State Department of Housing and Community Development (HCD) income limits, as follows:

1. Determine the annual median income, based on HCD income tables for Santa Clara County, for a household size that is one person more than the number of bedrooms in the BMR unit.

2. Multiply the median income by the following:
a. 110% for a BMR moderate income unit; and
b. 90% for a BMR median income unit.

3. Obtain the maximum annual housing allowance by multiplying the annual income from Step 2 above by 0.35 (moderate‐income) or 0.30 (median‐ income).

4. Obtain the maximum monthly housing allowance by dividing the annual housing allowance by 12.

5. Determine the maximum mortgage that can be financed:
a. The City’s BMR ownership program requires a minimum borrower down payment of 5%; therefore, the first mortgage loan amount will be calculated at a 95% loan‐to‐value (LTV) ratio. In order to determine the primary mortgage interest rate at least two City BMR approved lenders will be contacted for a 30 year fully amortized fixed‐rate primary home mortgage interest rate quote based on specific BMR sales price scenarios. Either use the average of the BMR lender interest rate quotes or 0.5% higher interest rate than interest rate quotes.
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b. Determine the maximum home mortgage that can be financed based on the principal and interest (P&I) mortgage payment as determined by the interest rate in Step 5a. The total monthly housing expense shall include the P&I mortgage payment, property taxes, mortgage insurance (if applicable), homeowner’s insurance, and homeowner’s association (HOA) fees.
c. Determine the maximum initial BMR unit sales price by adding up the total monthly housing expense as described in Step 5b. The proposed total monthly housing expenses cannot exceed the maximum monthly housing allowance as described in step 4.

B. Rental BMR Units

1. The maximum initial rents for BMR units are set at a level affordable to low and very low‐income households. The maximum initial rents for BMR units shall be determined based on:
a. Maximum housing allowance of 30% of gross income for a household size of one person more than the number of bedrooms in the rental BMR unit, and b. For low income units, assume household income at 60% of median‐ income, and for very low‐income units, assume household income at 50% of median‐ income.

2. The maximum rents for BMR units and maximum household income limits are revised annually following the annual publication of HCD income limits for Santa Clara County.

3. ʺRentʺ includes monthly rent paid to the property owner, utilities, and all fees for parking and other housing services. A reasonable utility allowance, as determined by the tables published annually by the Santa Clara County Housing Authority, shall be deducted from the maximum monthly rents for those utilities paid by the tenant.

4. Where affordable housing units are developed with other state or federal housing program assistance, the rental price requirements of the state or federal housing program will supersede the price limitations of these Guidelines where they are more stringent.

1.3.6 Terms of Affordability
Affordable housing is subject to recorded covenants that require the units be occupied at prices/rents that are affordable to Low to Moderate‐income households for a period of not less than 99 years from the date of first occupancy of the unit.

These deed restrictions shall run with the land and will remain in effect for subsequent buyers and owners.
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1.3.7 Agreement between Developer and City
A. Prior to recordation of a final or parcel map or issuance of any building permit, whichever is earlier, an affordable housing agreement shall be recorded against the property. The affordable housing agreement shall include, but not be limited to, the following:

1. Total number of BMR units, type, location, square footage and number of bedrooms, and construction scheduling of market‐rate and BMR units;

2. Provisions to ensure concurrent construction and completion of BMR and market‐rate units;

3. Affordability levels for each BMR unit;

4. Provisions for income certification and screening of potential occupants of BMR units;

5. Resale control mechanisms;

6. Financing of ongoing administrative and monitoring costs (City and private);

7. If applicable, a relocation plan for tenants of rental BMR units upon sale of units or redevelopment of site; and

8. Other reasonably required provisions to implement the Affordable Housing Plan.

B. Agreements for projects that provide alternatives to BMR requirements shall additionally contain provisions to ensure that the alternative requirements are completed prior to occupancy of the market rate development. 222
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2 Mitigation Requirements of Non‐Residential Developments

3.1 Requirements
A. All non‐residential projects that result in a net increase in gross floor area shall be required to pay the Affordable Housing Mitigation Fee in compliance with Section 2.2 of this manual.

B. Projects may propose alternatives to the BMR requirement in A (see above) in compliance with Chapter 7 of this manual.

3.2 Non‐Residential Fee Calculations
Non‐residential affordable housing mitigation fees shall be calculated by multiplying the increase in gross square footage (SF) by the applicable non‐residential affordable housing mitigation fee.

ExampleCalculation of Non‐Residential Affordable Housing Mitigation Fee Scenario Applicable SF Fee Amount per SF of
Gross Floor Area † Total Fee
Demolish and rebuild retail project:

Existing Gross sq. ft. = 10,000 sq. ft.;
New Gross sq. ft. = 15,000 sq. ft.
5,000 sq. ft. $10.00/sq. ft. $50,000
Newconstruction:

Commercial office = 50,000 sq. ft.;
Policesubstation = 1,500 sq. ft.*;
Parking garage = 48,000 sq. ft.*
50,000 sq. ft. $20.00/sq. ft. $1,000,000
Note: * Exempt
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3 Mitigation Requirements of Ownership Residential Developments

3.1 Requirements
A. An ownership residential development is any residential development that includes the approval of a subdivision map and creates one or more units that may be sold individually. It also includes a condominium conversion.

B. All ownership projects that result in the net increase in units shall be required to provide BMR mitigations in compliance with Section 4.2 and 4.3.

C. Projects that propose alternatives to the BMR requirement in A (see above) shall do so in compliance with Chapter 7 of this manual.

3.2 BMR Requirements for Developments with One (1) to Six (6)Four (4) Units New ownership projects adding one to six four units may either pay the Affordable Housing Mitigation Fee in compliance with Section 2.2 or provide one BMR unit in compliance with Section 2.3.

Example Calculation of Ownership Affordable Housing Mitigation Fee (1‐6 units) Scenario Applicable
SF
Fee Amount per SF of
Gross Floor Area † Total Fee
New single family home ortownhome:

Gross sq. ft. = 3,025 sq. ft.;
Garage = 425 sq. ft.*
2,600 sq. ft. $20.00/sq. ft. $52,000
New 54 unit multifamily ownership development:

Gross sq. ft. = 10,000 sq. ft;
Garage = 4,000 sq. ft.*
6,000 sq. ft. $20.00/sq. ft. $120,000
Note: * Exempt;
† The fee amounts above are examples only and may not reflect actual fee amounts.

3.3 BMR Requirements for Developments with Seven (7)Five (5) or more Units New ownership projects with seven five or more units or lots shall provide at least 20% of the units or lots as BMR ownership units or lots per Section 2.3.

Example Calculation of Ownership Affordable Housing Mitigation Fee (7+ units) Scenario BMRrequirement BMR
units Fees
New 24‐unit ownership townhome project 24 x 20% = 4.8 units 5 units* N/A New46‐unit condominiumdevelopment 46 x 20% = 9.2 units 9 units Pay fee for 0.2 unit per Section 2.3.2
Note: * Additional unit if over 0.49 per Section 2.3.2; † The fee amounts above are examples only and may not reflect actual fee amounts. 224
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4 Mitigation Requirements of Rental Residential Developments

4.1 Requirements
A. A rental residential development is any residential development that creates new dwelling units that cannot be sold individually.

B. All rental projects that result in the net increase in units shall be required to provide BMR mitigations in compliance with Section 5.2 and 5.3.

C. Projects that propose alternatives to the BMR requirement in A (see above) shall do so in compliance with Chapter 7 of this manual.

4.2 BMR Requirements for Developments with One (1) to Six (6)Four (4) Units New rental projects adding one to six four units may either pay the Affordable Housing Mitigation Fee in compliance with Section 2.2 or provide one BMR unit in compliance with Section 2.3.

Example Calculation of Residential Affordable Housing Impact Fee (Rental Projects) Scenario Fee Amount per SF of
Gross Floor Area † Total Fee
New 5 4 unit multifamily rental development:

Gross livablesq. ft. = 5,000 sq. ft; $20.00/sq. ft. $100,000 Note: † The fee amounts above are examples only and may not reflect actual fee amounts

4.3 BMR Requirements for Developments with Seven (7)Five (5) or more Units New rental projects with seven five or more units shall provide at least 15% of the units or lots as BMR ownership units or lots per Section 2.3.

Example Calculation of RentalAffordable Housing MitigationFee (7+ units) Scenario BMRrequirement BMR
units Fees
New 25‐unitrental project 25 x 15% = 3.75 units 4 units* NA New45‐unitrental project 45 x 15% = 8.25 units 8 units Pay fee for 0.25 unit per Section 2.3.2
Note: * Additional unit if over 0.49 per Section 2.3.2; † The fee amounts above are examples only and may not reflect actual fee amounts. 225
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5 Mitigation Requirements for Mixed‐Use Projects

5.1 Requirements
A. All new and redeveloped mixed‐use developments shall comply with requirements in:

1. Chapter 3 for non‐residential components; and/or

2. Chapter 4 for residential ownership components; and/or

3. Chapter 5 for residential rental components.

B. Projects that propose alternatives to the BMR requirements in A (see above) shall do so in compliance with Chapter 7 of this manual.

5.2 Mixed‐Use Mitigation Fee Calculations
Example Calculation of Residential Affordable Housing Mitigation Fee Scenario ApplicableSF Fee Amount per SF of Gross
Floor Area †
Total
Mitigation
New mixed‐use project:

Res. condos (2 units) = 3,000 sq. ft.;
Office = 5,000 sq. ft.;
Parking Garage = 850 sq. ft.*
Res. = 3,000 sq. ft.

Off. = 5,000 sq. ft. Residential Ownership fee =
$20.00/sq. ft.

Residential Rental fee =
$25.00/sq. ft.

Residential Rental BMR Units
= 15%
Residential Ownership BMR
units = 20%
Residential Rental fee =
$25.00/sq. ft.

Officefee = $20.00/sq. ft.

Retail & Hotel fee = $10/sq. ft.
$160,000
New mixed‐use project:

Res. Apartments (4 units) = 3,200 sq. ft.;
Retail = 3,500 sq. ft.

Parking Garage = 0 sq. ft.

Res. = 3,200 sq. ft.

Retail = 3,500 sq. ft. $115,000
New mixed‐use project:

Res. rental (120 units) = 110,000 sq. ft.;
Retail space = 50,000 sq. ft.;
Hotel (160 rooms) = 50,000 sq. ft.;
Parking Garage = 150,000 sq. ft.*
Res. = 120 units.

Retail = 50,000 sq.
ft.

Hotel = 50,000 sq. ft.
18 units
plus
$1,000,000
New mixed‐use project:

Res. Condos (120 units) = 110,000 sq. ft.;
Retail space = 10,000 sq. ft.;
Office = 25,000 sq. ft.;
Parking Garage = 60,000 sq. ft.*
Res. = 120 units
Retail = 10,000 sq. ft.

Office = 25,000 sq. ft.
24 units
plus
$600,000
Note: * Exempt
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6 Alternatives to BMR Requirements
The Council may, at its discretion, approve other alternatives to Chapters 3, 4, 5 and 6. The alternatives proposed shall be equivalent to the applicable BMR requirements for the project.

6.1 Options for Alternatives
A. Options for Alternatives to BMR Requirements may include, but are not limited to the following:

1. On‐site BMR rental units where ownership units or a fee is required.

2. Purchase of off‐site units to be dedicated and/or rehabilitated as for‐sale or rental BMR units per Section 2.3.

3. Development of off‐site units to be dedicated as for‐sale or rental BMR units per Section 2.3.

4. Land for development of affordable housing.

B. The Council may approve, conditionally approve, or deny a proposal to provide alternatives to BMR requirements.

6.2 Housing Plan for Alternative BMR Requirements
A. If alternatives to BMR requirements are proposed, an Affordable Housing Plan shall, in addition to the requirements of Section 2.3.3:

1. Demonstrate equivalency of the alternative to BMR requirements

2. Rental BMR units shall be affordable as shown in Section 2.3.1.

3. If off‐site development of BMR units is proposed:
a. Identify the proposed site and demonstrate site control; b. Identify the developer for the proposed off‐site BMR project; c. If not appropriately zoned, demonstrate compatibility of the proposed project with adjacent uses;
d. Provide a financial pro forma identifying all financing sources to fully fund an affordable project; and
e. Provide a plan for completion of the off‐site BMR development, prior to approval of the market‐rate project. The Affordable Housing Plan shall additionally include, but not be limited to, the following items prior to any parcel or final map or issuance of building permits for the market‐rate project, whichever is earlier:
i. Transfer of property to BMR developer;
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ii. Recordation of a city‐approved deed restriction against the property; iii. Discretionary approvals from the City for the proposed BMR development; iv. Committed financing for the project in an escrow account or an account approved by the City with joint signatory authority with the City and firm commitments from lenders or other sources of financing for the project; and v. A contingency plan, including a schedule of timing and agreement to provide the required on‐site BMR mitigation, in the event the off‐site BMR units are not completed prior to completion of the market rate development.

B. The City may retain a consultant, at the developerʹs expense, to review the reasonableness of the proposal and the submitted pro‐forma.
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7 City Incentives

7.1 Density Bonus
To maximize housing opportunity and partially assist the developer by reducing or eliminating the development cost for the affordable units, a density bonus consistent with Chapter 19.56 of the Cupertino Municipal Code, Density Bonus, will be permitted.

7.2 Financial Assistance
If the project qualifies, the City may choose to utilize BMR AHF monies to create a greater percentage of affordable units at greater affordability than otherwise required (very low and low income in for‐sale developments; extremely low and very low in rental developments).

7.3 Fee Waivers
The City may consider waiving park dedication and construction tax fees for affordable units.

7.4 Priority Processing
The City shall, wherever possible, consider expediting the processing of developments with affordable units.

7.5 City Certification of Buyer and Tenant Eligibility
The City or its agent shall certify the eligibility of all proposed buyers and renters of BMR units.
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ORDINANCE NO. 24 –

AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF CUPERTINO REZONING CERTAIN SITES

IN THE CITY FOR CONFORMANCE WITH GENERAL PLAN

AND HOUSING ELEMENT
SECTION I: PROJECT DESCRIPTION
Application No:  Z‐2023‐001
Applicant:   City of Cupertino
Location:   Citywide
SECTION II: RECITALS
WHEREAS, state law requires the City to prepare and adopt an updated Housing Element every eight years to accommodate its fair share of housing and identify housing needs, resources and opportunities;
WHEREAS, pursuant to State Housing Law, the City prepared and presented a draft 6 th
Cycle Housing Element to the California Department of Housing and Community Development (HCD) on March 28, 2024,
WHEREAS, HCD informed the City in a letter dated April 10, 2024 that the proposed Draft Housing Element is conditionally certified, pending rezoning of the Priority Housing Sites, and any associated rezoning required, to accommodate the City’s Regional Housing Needs Allocation (RHNA); and
WHEREAS, pursuant to State Housing Law, the City Council adopted the City’s 6 th
Cycle Housing Element on May 14, 2024 with Resolution 24‐039; and WHEREAS, the Municipal Code amendment will be consistent with the Cityʹs General Plan land use map, proposed uses and surrounding uses; and WHEREAS, the necessary public notices have been given as required by the Municipal Code of the City of Cupertino and the Government Code, and the Planning Commission held a public hearing on June 11, 2024 to consider the project; and WHEREAS, based on substantial evidence in the administrative record, on June 11, 2024 the Planning Commission recommended that the City Council approve the Zoning Map Amendments, Z-2023-001, in substantially similar form to the Resolution presented (Resolution no. 2024-11); approve the Specific Plan Amendments (SPA-2024-001) and amendments to the Below Market Rate Housing Mitigation Manual (CP-2024-002) in substantially similar form to the Resolution presented (Resolution no. 2024-10) and did not make a recommendation to the City Council as it related to the Municipal Code 230
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Amendments required to conform with the General Plan and Housing Element and other minor clean up text edits (MCA-2023-001); and
WHEREAS, the City Council of the City of Cupertino held a duly noticed public hearing on July 2, 2024, and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for this Ordinance;
WHEREAS, the City entered into a Stipulated Judgement dated January 8, 2024 pursuant to a lawsuit related to adoption of the Housing Element which included requirements for coming into compliance with state housing element law and exempted the City from the California Environmental Quality Act (“CEQA”) pursuant to Government Code section 65759; and
WHEREAS, pursuant to Government Code 65759, the General Plan Amendment to adopt the Housing Element and associated amendments to the General Plan and zoning is fully described and analyzed in the Environmental Assessment, which is incorporated into the General Plan as Appendix G;
WHEREAS, the City Council finds the following:

1. That the proposed zoning is in accord with the Municipal Code and the Cityʹs Comprehensive General Plan.

2. The proposed zoning is in compliance with the provisions of the California Environmental Quality Act (CEQA).

Pursuant to Govt. Code Section 65759, the zoning actions related to bringing the City’s Housing Element into compliance with state law are exempt from CEQA. An Environmental Assessment was prepared, also in compliance with state law. This Environmental Assessment identified all feasible mitigation measures and was adopted as Appendix G – General Plan 2040 and Zoning Code Amendments Environmental Assessment of the General Plan as required by state law. The site(s) are physically suitable (including, but not limited to, access, provision of utilities, compatibility with adjoining land uses, and absence of physical constraints) for the proposed zoning designation(s) and anticipated land use development(s).

The sites being rezoned have access to utilities and are compatible with adjoining land uses. 231
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3. The proposed zoning will promote orderly development of the City.

The proposed zoning aligns zoning with the City’s General Plan land use goals and policies related to locating higher density development close to transit corridors. The sites being rezoned will promote orderly development in the City by allowing similar land uses to be located compatibly. The proposed changes also allow the City to comply with the requirements of state law related to housing.

4. That the proposed zoning is not detrimental to the health, safety, peace, morals and general welfare of persons residing or working in the neighborhood of subject parcels.

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

Section 1. Rezoning.

That the property described in attached Exhibits Z‐1 have a zoning designation as that shown, and is incorporated into the Master Zoning Map (Exhibit Z‐2) of the City of Cupertino and the Heart of the City Specific Plan Area Zoning Map (Exhibit Z‐3), which is also incorporated into the Master Zoning Map; and
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.
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Section 3. California Environmental Quality Act.

Adoption of these zoning amendments to allow implementation of the Housing Element is exempted from the California Environmental Quality Act (“CEQA”) pursuant to Government Code section 65759.

Section 4. Effective Date.

This Ordinance shall take effect and be in force thirty (30) days from and after adoption as provided by Government Code Section 36937.

AYES:

NOES:

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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EXHIBIT Z‐1
APN Acres Existing Zoning Designation New Zoning
316 23 027 0.64 P(CG, Res) R4
369 03 005 0.47 P(CG, Res) R4
326 34 047 1.09 P(CG, Res) R4
359 07 006 0.32 P(CG, Res) R4
375 06 006 1.71 P(CG, Res) R4
375 06 007 0.96 P(CG, Res) R4
316 21 031 1.81 P(CG, Res) R4
316 23 026 1.78 P(CG, Res) R4
326 32 050 0.83 P(CG, Res) R4
326 27 053 0.75 T R4
323 36 018 0.42 P(CG) R4
316 04 064 0.44 A1‐43 R3/TH
369 37 022 0.39 R3 R4
369 37 023 0.22 R3 R3/TH
369 37 024 0.17 R3 R3/TH
369 34 053 0.54 P(CG) R3/TH
359 18 044 0.26 P(CG) R4
366 10 121 1.34 P(CG, Res 5‐15) R3/TH
366 10 137 0.92 P(CG, Res 5‐15) R3/TH
366 19 047 2.33 P(CG, Res 5‐15) R4
366 19 078 0.08 P(CG, Res 5‐15) R4
359 09 017 1.00 P(CG, Res) R4
316 20 088 5.16 CG R4
359 13 019 0.99 R1‐10 R3
356 06 001 0.73 R1‐7.5 R3/TH
356 06 002 0.69 R1‐7.5 R3/TH
356 06 003 0.25 R1‐7.5 R3/TH
356 06 004 0.87 R1‐7.5 R3/TH
362 31 001 0.25 P(R3) R3/TH
362 31 030 0.23 P(R3) R3/TH
326 20 034 1.34 R1‐10 R3/TH
316 23 093 1.35 P(CG, Res) P (CG/R4)
316 23 036 0.24 P(CG, Res) P (CG/R4)
369 06 002 0.9 P(CG, Res) P (CG/R4)
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EXHIBIT Z‐1
1 Land Use designation and residential density changed only for a 178 feet by 208 feet portion of this site on the western portion closest to Stevens Creek Boulevard as shown in Santa Clara County Assessor’s Office’s records Book 359 Page 8 (Revised 2022‐2023). 2 Land Use designation and residential density changed only for a 180.75 feet by 180.75 feet portion of the northwest corner of the site is rezoned as shown in Santa Clara County Assessor’s Office’s records Book 359 Page 20 (Revised 2022‐2023). rezoned as shown in Santa Clara County Assessor’s Office’s records Book 359 Page 20 (Revised 2022‐2023).

APN Acres Existing Zoning Designation New Zoning
369 06 003 0.53 P(CG, Res) P (CG/R4)
369 06 004 1.29 P(CG, Res) P (CG/R4)
359 10 015 1.18 P(CG) P (CG/R4)
359 10 060 0.98 P(CG) P (CG/R4)
359 10 044 0.18 P(CG) P (CG/R4)
359 08 025 0.83 P(CG, Res) P (CG/R4)
359 08 026 0.45 P(CG, Res) P (CG/R4)
359 08 027 0.87 P(CG, Res) P (CG/R4)
359 08 028 1 0.85 P(CG, Res) P (CG/R4)
326 09 052 0.74 P(CG) P (CG/R4)
326 09 060 2.75 P(Rec/Enter) P (CG/R4)
326 09 061 1.12 P(CG) P (CG/R4)
369 34 052 2.70 P(CG) P (CG/R4)
369 37 028 0.56 P(CG) P (CG/R4)
366 19 055 0.40 P(CG, Res 5‐15) P (CG/R3/TH)
366 19 053 0.56 P(CG, Res 5‐15) P (CG/R3/TH)
366 19 054 1.75 P(CG, Res 5‐15) P (CG/R3/TH)
316 05 050 1.02 P(CG, Res) P (CG/R4)
316 05 051 0.62 P(CG, Res) P (CG/R4)
316 05 052 0.73 P(CG, Res) P (CG/2R4)
316 05 053 0.92 P(CG, Res) P (CG/R4)
316 05 056 6.94 P(CG, Res) P (CG/R4)
316 05 072 0.54 P(CG, Res) P (CG/R4)
359 20 028 2 0.75 BQ P (CG/R3)
316 06 058 6.62 P(Res – 70) No change
316 06 059 5.42 P(Res – 70) No change
316 06 060 0.45 P(Res – 70) No change
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EXHIBIT Z-2
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Exhibit Z-3
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June 18, 2024
Cupertino City Council,
10350 Torre Avenue Cupertino, California 95014
RE: Planning Commission - Agenda Item 2 - Draft MCA Resolution Dear Cupertino City Council and to whom it may concern, Thank you for expediting the rezoning process given the City’s short timeline.

However, we were surprised and disappointed to see that the proposed changes do not reflect an ambitious program we had hoped for, but instead, the draft seems aimed at achieving minimum compliance rather than laying the foundation for a Housing Element that truly facilitates housing development and provides flexibility amidst challenging current market conditions in order to truly promote affordable homes for all income levels.

Specifically, we would like to highlight the following concerns:

1. Height Limits: The 5-story limitation on new R4 zoned parcels is unnecessary, given the 70-foot height limit. This story limit should be removed to avoid imposing needless constraints.

2. Restrictive Zoning - Unnecessary Setbacks and Parking Standards: The initial implementation of Strategy HE 1.3.6 is extremely disappointing. It fails to support those wishing to develop duplexes in single-family zones due to unresolved issues in our R2 zoning districts. These issues include restrictive lot coverage (40%) and setbacks-which should be adjusted to a simple 5-foot minimum on each side for interior lots-as well as the high parking standards, which remain unaddressed. The document does not appear to modify R2 zoning standards effectively; instead, the draft imposes new, unnecessary restrictions on duplex definitions, limiting size differences between units (200 square feet) and FAR restrictions that do not exist in the current zoning code. 238
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3. R3 Standards: R3 standards should also be improved by removing story restrictions, reviewing the height limit (a modest increase to at least 35 feet, expanding the lot coverage standard (40%), and expanding or abolishing the FAR restriction altogether.

4. Parking Standards: We urge further modifications to parking standards.

Parking continues to be one of the greatest barriers for the actual building cost of affordable housing and is not in alignment with the ambitious climate change mitigation goals that Cupertino believes in, such as the Climate Action Plan 2.0, and moreover, contradicts the spirit of CAP 2.0 Updates that called for revising parking standards.

Without these essential changes, particularly those related to Strategy HE 1.3.6 and the associated R2 standards, this zoning code update fails to address the moment and significantly misses the mark on AFFH (Affirmatively Furthering Fair Housing).

We request that these changes are incorporated into the document. This will ensure that we, along with the rest of our community, can support it.

Regards,
Steering Committee
Cupertino For All
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CITY OF CUPERTINO
Agenda Item
23-12358 Agenda Date: 7/2/2024
Agenda #: 8.

Subject: Review Lawrence-Mitty Park and Trail Project Final conceptual Design and consider the proposed Initial Study/Mitigated Negative Declaration

1. Adopt Resolution No. 24-068, adopting Lawrence-Mitty Park and Trail Project's Initial Study/Mitigated Negative Declaration; and

2. Approve the Lawrence-Mitty Park and Trail Project Final Conceptual Design Presenter: Susan Michael, Capital Improvement Programs Manager CITY OF CUPERTINO Page 1 of 1 Printed on 6/26/2024
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CITY COUNCIL STAFF REPORT
Meeting: July 2, 2024
Subject
Review Lawrence-Mitty Park and Trail Project Final Conceptual Design and consider the proposed Initial Study/Mitigated Negative Declaration.

Recommended Action

1. Adopt Resolution No. 24-XXX, adopting Lawrence-Mitty Park and Trail Project’s Initial Study/Mitigated Negative Declaration; and

2. Approve the Lawrence-Mitty Park and Trail Project Final Conceptual Design.

Reasons for Recommendation
Background
The 7.83-acre Lawrence-Mitty Park and Trail Project site is located west of Lawrence Expressway and east of Saratoga Creek, between Calvert Drive and Bollinger Road (see Figure 1 below).

The City of Cupertino has envisioned the Lawrence-Mitty site as a public park since 2002. The land use on this property was pre-zoned to “Pre-PR” in 2006 to align the zoning with the City’s intended use as parks and open space. This helped with furthering plans to acquire the property for recreational purposes, including the extension of the existing San Tomas-Aquino-Saratoga Creek Trail. The City acquired the Lawrence-Mitty property from the County of Santa Clara in 2020 and subsequently annexed the property from the City of San Jose into Cupertino’s jurisdiction in August 2022. The PR zoning for the property became effective at the time of the annexation.

Figure 1: Site Location
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The City’s plan to develop the site into a recreational facility includes an extension of the San Tomas Aquino/Saratoga Creek Trail, which was originally envisioned by the County of Santa Clara Parks and Recreation Department in 1999.1 As a first step in the park’s development, the City produced this Final Conceptual Plan which reflects community input and the goals laid out in the City’s 2020 Parks and Recreation System Master Plan. 2 Throughout the design development, the City solicited public input, presented at numerous commission meetings, and to the City Council, to gather input and ideas on the park design and amenities.3
Proposed Final Conceptual Design
After many public events and meetings in 2022, the design team developed three options for the community’s consideration:
 Concept A – Wheel Fun;
 Concept B - Story Trail; and
 Concept C - Play It Up
These options were presented at various commissions, including the 11/16/2022 Bicycle Pedestrian Commission meeting and the 11/17/2022 Parks and Recreation Commission meeting. Based on the commission and community’s input, the preferred option was identified as Concept B, “Story Trail,” with the inclusion of some features from Concept C, “Play It Up.”
Subsequently, at the 1/17/2023 meeting (Attachment H), the City Council approved the design direction for the conceptual plan and the project team proceeded with the preparation of the Final Conceptual Design (Attachment B).

This Final Conceptual Plan is reflective of the following considerations:
(a) Represents directives received to date from the community, commissions, and City Council;
(b) Is consistent with the Goals, Policies, and Strategies of the General Plan and the Parks and Recreation System Master Plan;
(c) Will not have a significant negative impact on the environment; and (d) Provides the design intent for the future phases of design and construction of the park and trail.

The Final Conceptual Design includes an extension of the Saratoga Creek/San Tomas Aquino trail, as well as nature play areas, and picnic groves among other features as shown in Attachment B.

1 Available online at https://parks.sccgov.org/sites/g/files/exjcpb961/files/S-T-ASaratoga%20crk%20Trl%20Mstr%20Plan%206.29.99.pdf 2 Available online at https://parksmp.cupertino.org/index.html 3 Community engagement events are listed on the Engage Cupertino website:
https://engagecupertino.org/lawrencemitty
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Planning Commission Review
Section 19.92.040 of the Cupertino Municipal Code (CMC) requires that the development plans for any proposed park be reviewed by the Planning Commission “for its recommendation to include an environmental assessment of the plans and a finding that the proposal is consistent with the General Plan.” On May 28, 2024, the Planning Commission considered the item and made the following unanimous recommendation to the Council (Attachment E, F):

1. Find that the Lawrence-Mitty Park and Trail Project Final Conceptual Design is consistent with the City of Cupertino General Plan; and

2. Recommend that the City Council adopt the Initial Study/Mitigated Negative Declaration, Mitigation Measures and Mitigation Monitoring and Reporting Program for the Lawrence-Mitty Park and Trail project.

Parks and Recreation Commission Review
On June 11, the Parks and Recreation Commission considered the proposed final conceptual design and made a favorable recommendation to the City Council, as required by CMC section 19.92.040.

California Environmental Quality Act (CEQA) Review: Initial Study/Mitigated Negative Declaration
A Draft Initial Study/Mitigated Negative Declaration (IS/MND) (Attachment C) was prepared by MIG, Inc. to analyze the potential environmental effects of the development of the Final Conceptual Design. The proposed project scope includes the development of a new public park and the extension of an existing trail on the Lawrence-Mitty property.

The CEQA Guidelines Section 15070 state a public agency shall prepare a negative declaration or a mitigated negative declaration when the initial study shows there is no substantial evidence that the project may have a significant effect on the environment, or when those effects can be mitigated to a point where no significant effects would occur.

The Draft IS/MND concluded that all the environmental effects can be mitigated to a less than significant level, therefore, City staff in consultation with its environmental consultant, MIG, Inc., determined that an MND is the appropriate environmental review document for the Lawrence-Mitty Park and Trail Project.

Due to the proximity of the project to Saratoga Creek, the IS/MND identified the following mitigation measures, summarized below, which must be implemented to ensure that the environmental impacts of the project are reduced to a less than significant level.

Biological Resources
 Mitigation Measure BIO-1a. Conduct Preconstruction Survey. No more than 24 hours prior to the date of initial ground disturbance, a pre-construction survey for 243
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the southwestern pond turtle will be conducted within the impacted area by a qualified biologist.
 Mitigation Measure BIO-1b. Worker Environmental Awareness Program. All construction personnel will participate in a worker environmental awareness program prior to construction operations.
 Mitigation Measure BIO-1c. Install Wildlife Exclusion Barrier. Prior to any ground disturbance in the work area, a temporary wildlife exclusion barrier will be installed along the limits of disturbance.
 Mitigation Measure BIO-1d. Construction Monitoring. A qualified biologist or biological monitor will be onsite during all project activities that may result in the take of any special-status species.
 Mitigation Measure BIO-2a. Pre-Construction Survey for San Francisco DuskyFooted Woodrats. Within 30 days prior to the start of construction activities, a qualified biologist shall map all San Francisco dusky-footed woodrat nests within a 50-foot buffer around the project footprint.
 Mitigation Measure BIO-2b. Relocation of Woodrat Houses. In the unlikely event that one or more woodrat houses are determined to be present and physical disturbance or destruction of the houses cannot be avoided, the nest shall be relocated outside of the disturbance area, prior to onset of activities that would disturb the nest.
 Mitigation Measure BIO-3a. Pre-Construction Survey for Roosting Bats. A survey of culverts within the project site, including a 50-foot buffer (as feasible) shall be conducted by a qualified bat biologist no less than 30 days before the start of construction-related activities.
 Mitigation Measure BIO-3b. Acoustic Survey. If suitable habitat is present and signs of bat occupancy are detected, a follow-up dusk emergence survey shall be conducted no less than 30 days prior to construction activities.  Mitigation Measure BIO-3c. Roost Buffer. If a day roost or a maternity colony is detected and is found sufficiently close to work areas to be disturbed by construction activities, a qualified biologist shall determine the extent of a construction-free buffer zone to be established around the roost in consultation with the California Department of Fish and Wildlife (CDFW).
 Mitigation Measure BIO-4. Pre-Construction/Pre-Disturbance Survey for Nesting Birds. To the extent feasible, construction activities should be scheduled to avoid the nesting season. If it is not possible to schedule construction activities between September 1 and January 31, then preconstruction surveys for nesting birds shall be conducted by a qualified biologist to ensure that no nests would be disturbed during project implementation.

Cultural Resources
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 Mitigation Measure CUL-1. The City of Cupertino shall note on any plans that require ground disturbing excavation that there is a potential for exposing buried cultural resources including prehistoric Native American burials.  Mitigation Measure CUL-2. It is recommended that prior to the start of ground disturbing construction, the City should implement a Worker Awareness Training program for cultural resources.
 Mitigation Measure CUL-3. The City shall retain a Professional Archaeologist on an “on-call” basis during ground disturbing construction to review, identify, and evaluate any potential cultural resources that may be inadvertently exposed during construction.
 Mitigation Measure CUL-4. In accordance with Section 7050.5 of the California Health and Safety Code, if potential human remains are found, immediately notify the lead agency and the Santa Clara County Coroner of the discovery.  Mitigation Measure TRIB-1. In the event that Native American archaeological resources are discovered, or are suspected to have been discovered, Native American monitoring will be required before further ground disturbance is allowed.

In accordance with CEQA procedural requirements, the Draft IS/MND was circulated for public review for a period of 30 days. The IS/MND was made available for review on the City’s website, legal notices were published, and nearby residents were notified via physical mailers and interested parties were notified via email. Comments received during the public review period from public agencies and the general public were addressed in the attached Final Memo and Response to Comments (Attachment D). It should be noted that the comments received during the public review period did not alter any of the mitigation measures identified in the Draft IS/MND. The Final IS/MND is comprised of the Draft IS/MND (Attachment C) and the Final Memo and Response to Comments (Attachment D).

Next Steps
If the City Council adopts the IS/MND and approves the Final Conceptual Design, the project team will continue the project by preparing design and engineering drawings.

These documents will be used to obtain any required permits, solicit bids for construction, and construct the park and trail. Completion of the project is anticipated in Summer 2027.

Sustainability Impact
This project aligns with multiple objectives outlined within the City’s Climate Action Plan 2.0. In particular, the development of the Lawrence-Mitty site will enhance bike and pedestrian paths (Measure TR-1) and create new natural areas in existing open spaces (Measure CS2.1).

Fiscal Impact
Receiving the Reports and Presentation does not incur fiscal impact. Lawrence–Mitty 245
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Park was funded in Fiscal Year 2015 at $8,270,994. The current available balance for the project (280-99-009) is $5,940,457 after expenditures for the acquisition and annexation of the property, and consultant services. The available balance will be used to prepare construction design documents and to construct the project.

California Environmental Quality Act
The proposed Final IS/MND is attached.
_____________________________________
Prepared by: Susan Michael, Capital Improvement Programs Manager Reviewed by: Chad Mosley, Director of Public Works
Approved by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution
B – Conceptual Plan Report
C – Draft IS/MND and Appendices
D – Final Memo and Response to Comments
E – PC RES-2024-06 Lawrence-Mitty General Plan Consistency F – PC RES 2024-07 Lawrence-Mitty IS-MND
G – SCVAS Support Lawrence-Mitty 06-06-24
H- 01-17-2023 Council Staff Report
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Attachment A
RESOLUTION NO. ______

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

ADOPTING A MITIGATED NEGATIVE DECLARATION, MITIGATION

MEASURES, AND A MITIGATION MONITORING AND REPORTING

PROGRAM FOR THE LAWRENCE-MITTY PARK AND TRAIL PROJECT
____________________________________________________________________ WHEREAS, the California Environmental Quality Act (CEQA) requires that all discretionary projects proposed to be carried out or approved by public agencies be subject to a comprehensive environmental review process; and WHEREAS, on February 12, 2024 the City issued a Notice of Intent to Adopt a Mitigated Negative Declaration; and
WHEREAS, on February 12, 2024 the Draft Initial Study/Mitigated Negative Declaration (IS/MND) for the project was distributed to responsible agencies and the public for review and comment for a 30-day period that ended March 13, 2024; and
WHEREAS, the City of Cupertino has reviewed and considered all comments received from the public, governmental agencies, and other interested parties regarding the IS/MND for the Lawrence-Mitty Park and Trail project; and WHEREAS, the Final IS/MND for the Lawrence-Mitty Park and Trail project is comprised of the Draft IS/MND and the Final Memo and Response to Comments dated May 21, 2024; and
WHEREAS, text revisions made after publication of the Draft IS/MND, which are found in the Final Memo and Response to Comments, merely clarify, amplify, or make insignificant modifications to the IS/MND, and recirculation of the IS/MND is not required; and
WHEREAS, environmental analysis conducted by MIG, Inc. pursuant to the requirements of the California Environmental Quality Act (“CEQA") (14 Cal Code. Regs, § 15164), in the services of an Initial Study report, found that there is no substantial evidence that the project may have a significant effect on the environment, and the effects can be mitigated to a point where no significant effects would occur.
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WHEREAS, the City of Cupertino finds that the IS/MND adequately identifies and analyzes the potential environmental impacts of the project and demonstrates that, with implementation of identified mitigation measures, those impacts will be reduced to a level of insignificance; and WHEREAS, the City of Cupertino finds that the IS/MND reflects the City's commitment to environmental stewardship and sustainability while allowing for the responsible development and growth of the community; WHEREAS, on May 28, 2024, the City of Cupertino’s Planning Commission held a duly noticed public hearing to receive public testimony reviewed and considered the information contained in the IS/MND, and voted to recommend that the City Council adopt the IS/MND, adopt and incorporate into the Project and implement as conditions of approval all of the mitigation measures for the project that are identified in the IS/MND, and adopt the Mitigation Monitoring and Reporting Program for the Project; WHEREAS, on June 11, 2024, the Parks and Recreation Commission held a duly noticed public hearing to receive public testimony and voted to recommend that the City Council approve the Lawrence-Mitty Park and Trail Project Final Conceptual Design and adopt the Initial Study/Mitigated Negative Declaration.

WHEREAS, the City Council has independently reviewed and considered the IS/MND together with the comments and the responses to those comments prior to taking action on the Project; and
NOW, THEREFORE, BE IT RESOLVED after careful consideration of the IS/MND, comments on the IS/MND, facts, exhibits, testimony, staff reports, public comments, and other evidence submitted in this matter, that the Cupertino City Council does hereby:

1. Find that the IS/MND for the Project has been completed in compliance with CEQA and reflects the independent judgment and analysis of the City.

2. Find that, on the basis of the whole record before it, there is no substantial evidence that the Project as proposed and mitigated will have a significant effect on the environment.

3. Find that the text revisions to the IS/MND merely clarify, amplify, or make insignificant modifications to the IS/MND; therefore, recirculation of the IS/MND is not required.
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4. Adopt the Mitigated Negative Declaration for the Project.

5. Adopt and incorporate into the Project all of the mitigation measures identified in the IS/MND. The City Council further makes the mitigation measures, which are listed below, required conditions of approval of the Project to the extent they are within the responsibility and jurisdiction of the City:
 Mitigation Measure BIO-1a. Conduct Preconstruction Survey. No more than 24 hours prior to the date of initial ground disturbance, a preconstruction survey for southwestern pond turtle will be conducted within the impact area by a qualified biologist. The survey will consist of walking the limits of impact to ascertain the possible presence of the species. The qualified biologist will investigate all potential areas that could be used by southwestern pond turtle for feeding, sheltering, movement, and other essential behaviors.

During or following academic training, the qualified biologist shall have achieved a high level of professional experience and knowledge in biological sciences and special-status species identification, ecology, and habitat requirements. Additionally, the qualified biologist must be permitted or authorized to handle and relocate southwestern pond turtle.  Mitigation Measure BIO-1b. Worker Environmental Awareness Program.

All construction personnel will participate in a worker environmental awareness program. These personnel will be informed about the possible presence of all special-status species and habitats associated with the species identified here to be potentially present in the parcel and that unlawful take of the animal or destruction of its habitat is a violation of law.

Prior to construction activities, a qualified biologist will instruct all construction personnel about (1) the description and status of the species; (2) the importance of their associated habitats; (3) a list of measures being taken to reduce impacts on these species during project construction and implementation; and (4) measures to be followed if special-status species are encountered during construction activities. A fact sheet conveying this information will be prepared for distribution to the construction crew and anyone else who enters the project site.
 Mitigation Measure BIO-1c. Install Wildlife Exclusion Barrier. Prior to any ground disturbance in the work area, a temporary wildlife exclusion 249
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barrier will be installed along the limits of disturbance. A qualified biologist will inspect the area prior to installation of the barrier. The barrier will be designed to allow the southwestern pond turtles to leave the work area and prevent them from entering the work area. The fence will remain in place until all development activities have been completed. This barrier will be inspected daily and maintained and repaired as necessary to ensure that it is functional and is not a hazard to southwestern pond turtles on the outer side of the barrier.
 Mitigation Measure BIO-1d. Construction Monitoring. A qualified biologist or biological monitor will be onsite during all project activities that may result in the take of any special-status species. The qualified biologist will be given the authority to freely communicate verbally, by telephone, by electronic mail, or in writing at any time with construction personnel, any other person(s) at the project site or otherwise associated with the project, and regulatory agencies (e.g., USFWS or CDFW). The qualified biologist or biological monitor will have oversight over implementation of all the mitigation measures and will have the authority and responsibility to stop project activities if they determine any of the measures are not being fulfilled.

A biological monitor is an individual who shall have academic and professional experience in biological sciences and related resource management activities as it pertains to this project, experience with construction-level biological monitoring, be able to recognize species that may be present within the project area and be familiar with the habits and behavior of those species.
 Mitigation Measure BIO-2a. Pre-Construction Survey for San Francisco Dusky-Footed Woodrats. Within 30 days prior to the start of construction activities, a qualified biologist shall map all San Francisco dusky-footed woodrat houses within a 50-foot buffer around the project footprint.

Environmentally sensitive habitat fencing shall be placed to protect the houses with a minimum 50-foot buffer. If a 50-foot buffer is not feasible, a smaller buffer may be allowable based on advice from a qualified biologist with knowledge of woodrat ecology and behavior, or Mitigation Measure BIO-2b may be implemented.
 Mitigation Measure BIO-2b. Relocation of Woodrat Houses. In the unlikely event that one or more woodrat houses are determined to be present and physical disturbance or destruction of the houses cannot be avoided, then the woodrats shall be evicted from their houses and the nest 250
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material relocated outside of the disturbance area, prior to onset of activities that would disturb the house, to avoid injury or mortality of the woodrats.

The reproductive season for San Francisco dusky-footed woodrats typically starts in February or March and breeding activity usually continues to July but can extend into September. Thus, relocation efforts should be completed in the fall to minimize the potential for impacts on young woodrats in the house. Additionally, it is recommended that the period between the completion of the relocation efforts and the start of construction activities be minimized to reduce the potential for woodrats to reconstruct houses in the project footprint prior to the start of construction activities.

Relocation generally involves first choosing an alternate location for the house material based on the following criteria: 1) proximity to current nest location; 2) safe buffer distance from planned work; 3) availability of food resources; and 4) availability of cover. An alternate house structure will then be built at the chosen location. Subsequently, during the evening hours (i.e., within 1 hour prior to sunset), a qualified biologist will slowly dismantle the existing woodrat house to allow any woodrats to flee and seek cover. All sticks from the nest will be collected and spread over the alternate structure. However, alternative relocation measures can be employed as advised by a qualified wildlife biologist in consultation with CDFW.
 Mitigation Measure BIO-3a. Pre-Construction Survey for Roosting Bats.

A survey of culverts within the project site, including a 50-foot buffer (as feasible) shall be conducted by a qualified bat biologist no less than 30 days before the start of construction-related activities (including but not limited to mobilization and staging, clearing, grubbing, tree removal, vegetation removal, fence installation, demolition, and grading). If construction activities are delayed by more than 30 days, an additional bat survey shall be performed. The survey may be conducted at any time of year but should be conducted in such a way to allow sufficient time to determine if specialstatus bats or maternity colonies are present on the site. The results of the survey shall be documented.

If no habitat or signs of bats are detected during the habitat suitability survey, no further surveys are warranted. If suitable habitat is present and signs of bat occupancy (e.g., guano pellets or urine staining) are detected, Mitigation Measure BIO-3b shall apply.
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 Mitigation Measure BIO-3b. Acoustic Survey. If suitable habitat is present and signs of bat occupancy are detected, a follow-up dusk emergence survey shall be conducted no less than 30 days prior to construction activities. A dusk survey will determine the number of bats present and will also include the use of acoustic equipment to determine the species of bats present. The results of the survey shall be documented. If an active roost is observed within the project site, Mitigation Measure BIO-3c shall apply.  Mitigation Measure BIO-3c. Roost Buffer. If a day roost or a maternity colony is detected and is found sufficiently close to work areas to be disturbed by construction activities, the qualified biologist shall determine the extent of a construction-free buffer zone to be established around the roost in consultation with CDFW. Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading shall be permitted.

Monitoring shall be required to ensure compliance with relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.
 Mitigation Measure BIO-4. Pre-Construction/Pre-Disturbance Survey for Nesting Birds.

Avoidance. To the extent feasible, construction activities should be scheduled to avoid the nesting season. If construction activities are scheduled to take place outside the nesting season, all impacts to nesting birds protected under the MBTA and California Fish and Game Code would be avoided. The nesting season for most birds in Santa Clara County extends from February 1 through August 31.

These surveys shall be conducted no more than five days prior to the initiation of any site disturbance activities and equipment mobilization, including tree, shrub, or vegetation removal, fence installation, grading, etc.

If project activities are delayed by more than five days, an additional nesting bird survey shall be performed. During this survey, the biologist will inspect all trees and other potential nesting habitats (e.g., trees, shrubs, culverts) in and immediately adjacent to the impact area for nests. Active nesting is present if a bird is building a nest, sitting in a nest, a nest has eggs 252
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or chicks in it, or adults are observed carrying food to the nest. The results of the surveys shall be documented.

Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading will be permitted until the chicks have fledged. Monitoring shall be required to ensure compliance with MBTA and relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.
 Mitigation Measure CUL-1. The City of Cupertino (City) shall note on any plans that require ground disturbing excavation that there is a potential for exposing buried cultural resources including prehistoric Native American burials. Significant prehistoric cultural resources are defined as human burials, features or other clustering’s of finds made, modified, or used by Native American peoples in the past. The prehistoric and protohistoric indicators of prior cultural occupation by Native Americans include artifacts and human bone, as well as soil discoloration, shell, animal bone, sandstone cobbles, ashy areas, and baked or vitrified clays. Prehistoric materials may include:
a. Human bone - either isolated or intact burials.
b. Habitation (occupation or ceremonial structures as interpreted from rock rings/features, distinct ground depressions, differences in compaction (e.g., house floors).
c. Artifacts including chipped stone objects such as projectile points and bifaces; groundstone artifacts such as manos, metates, mortars, pestles, grinding stones, pitted hammerstones; and, shell and bone artifacts including ornaments and beads.
d. Various features and samples including hearths (fire-cracked rock; baked and vitrified clay), artifact caches, faunal and shellfish remains (which permit dietary reconstruction), distinctive changes in soil stratigraphy indicative of prehistoric activities. 253
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e. Isolated artifacts.
 Mitigation Measure CUL-2. It is recommended that prior to the start of ground disturbing construction, the City should implement a Worker Awareness Training (WAT) program for cultural resources. Training shall be required for all construction personnel participating in ground disturbing construction to alert them to the archaeological sensitivity of the project area and provide protocols to follow in the event of a discovery of archaeological materials. The training shall be provided by a Registered Professional Archaeologist (RPA).

The RPA shall develop and distribute for job site posting an "ALERT SHEET" summarizing potential archaeological finds that could be exposed and the protocols to be followed as well as points of contact to alert in the event of a discovery.
 Mitigation Measure CUL-3. The City shall retain a Professional Archaeologist on an “on-call” basis during ground disturbing construction to review, identify and evaluate any potential cultural resources that may be inadvertently exposed during construction. The archaeologist shall review and evaluate any discoveries to determine if they are historical resource(s) and/or unique archaeological resources under the California Environmental Quality Act (CEQA).

If the Professional Archaeologist determines that any cultural resources exposed during construction constitute a historical resource and/or unique archaeological resource under CEQA, he/she shall notify the City and other appropriate parties of the evaluation and recommend mitigation measures to mitigate to a less-than significant impact in accordance with California Public Resources Code Section 15064.5. Mitigation measures may include avoidance, preservation in-place, recordation, additional archaeological testing, and data recovery among other options. The completion of a formal Archaeological Monitoring Plan (AMP) and/or Archaeological Treatment Plan (ATP) that may include data recovery may be recommended by the Professional Archaeologist if significant archaeological deposits are exposed during ground disturbing construction. Development and implementation of the AMP and ATP and treatment of significant cultural resources will be determined by the City in consultation with any regulatory agencies.
 Mitigation Measure CUL-4. In accordance with Section 7050.5 of the California Health and Safety Code, if potential human remains are found, immediately notify the lead agency (City of Cupertino or Santa Clara 254
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County) staff and the Santa Clara County Coroner of the discovery. The coroner would provide a determination regarding the nature of the remains within 48 hours of notification. No further excavation or disturbance of the identified material, or any area reasonably suspected to overlie additional remains, can occur until a determination has been made. If the County Coroner determines that the remains are, or are believed to be, of Native American ancestry, the coroner would notify the Native American Heritage Commission within 24 hours. In accordance with California Public Resources Code, Section 5097.98, the Native American Heritage Commission must immediately notify those persons it believes to be the Most Likely Descendant from the deceased Native American. Within 48 hours of this notification, the Most Likely Descendant would recommend to the lead agency their preferred treatment of the remains and associated grave goods.
 Mitigation Measure TRIB-1. It is possible for a lead agency to determine that an artifact is considered significant to a local tribe, and thus considered a significant resource under CEQA, even if it would not otherwise be considered significant under CEQA. As such, all Native American tribal finds are to be considered significant until the lead agency has enough evidence to make a determination of significance. In the event that Native American archaeological resources are discovered, or suspected to have been discovered, Native American monitoring will be required before further ground disturbance shall be allowed.

6. Adopt and incorporate into the Project all of the Conditions of Approval noted in the IS/MND, which are listed below, as required conditions of approval of the Project to the extent they are within the responsibility and jurisdiction of the City:
 Standard Permit Condition: The following measures shall be applied to development of the project site to reduce and/or avoid impacts to paleontological resources:

If vertebrate fossils or other paleontological resources are discovered during construction, all work on the site shall stop immediately until a qualified professional paleontologist can assess the nature and importance of the find and recommend appropriate treatment. Treatment may include preparation and recovery of fossil materials so that they can be housed in an appropriate museum or university collection and may also include preparation of a report for publication describing the finds. The City of Cupertino’s Project Manager or other suitable representative shall be 255
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responsible for submitting the paleontologist’s report to the Director of Public Works and implementing the recommendations of the qualified professional paleontologist. The representative shall submit a report to the Director of Public Works indicating how the paleontologist’s recommendations were complied with as soon as all measures have been incorporated into the project.

7. Adopt the Mitigation Monitoring and Reporting Program for the Project, as amended, attached hereto as Exhibit EA-1, and incorporated herein by reference, which incorporates all the mitigation measures identified in the Final IS/MND.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 2nd day of July, 2024, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Sheila Mohan, Mayor
City Council
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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LAWRENCE-MITTY

PARK AND TRAIL
Concept Plan Report
December 2023

ATTACHMENT B
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In January 2022, the City of Cupertino and
a consultant team lead by MIG, kicked off
the Lawrence-Mitty Park and Trail Concept
Plan project, with the goal of transforming
this recently acquired vacant site and existing
trail corridor into a meaningful recreation
resource for the Cupertino community.

Primary tasks were to analyze the site, gather
public input to inform community-driven
design alternatives, and arrive at a preferred,
implementable concept plan for the site. This
effort is summarized in this report, organized
by the five project phases as shown at left.

Project Background
The Lawrence-Mitty site totals about 7.83 acres,
and includes the Saratoga Creek channel along the
western boundary, reducing the developable area
to approximately 5.92 acres. The eastern boundary
of the site is adjacent to Lawrence Expressway.

Development of the site as a park and trail
extension provides greatly needed open space
for citizens on the eastern side of Cupertino, and
was included as an action in the 2020 Park and
Recreation System Master Plan (PRSMP) as part of
the City’s Master Plan Goal #3, Equitable Access.

Additionally, the site was included in the 1999 San
Tomas Aquino/Saratoga Creek Trail Master Plan
as part of Reach 5 of the trail system. A primary
element of the improvement of this site will be
to develop this segment of the trail network.

Site Acquisition
The desire for a new park and trail extension
along Lawrence Expressway near Mitty Avenue
(Lawrence-Mitty) began 20 years ago. The City
of Cupertino has considered the acquisition,
annexation, and development of a neighborhood
park on the eastern side of the City since 2002.

In July 2020, the City Council approved the
purchase of the Lawrence-Mitty site from
the Santa Clara County Roads and Airports
Department. The site was previously within
the jurisdiction, city limits, and urban service
area of the City of San Jose. In April 2022,
the Local Agency Formation Commission of
Santa Clara County (LAFCO) approved the
City of Cupertino’s request for annexation.

Develop a
Community
Vision
Conduct
Technical
Site Analysis
Create
Design
Alternatives
Develop the
Concept
Plan
Review
Environmental
Impact
Project Phases
1 2 3 4 5
2022 2023
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 2

TABLE OF CONTENTS
INTRODUCTION 2
PHASE 1 - Conduct Technical Site Analysis 3
• Existing Conditions
• Technical Studies
• Existing Conditions
• Opportunities & Constraints
PHASE 2 - Develop a Community Vision 6
• Community Events
• Emerging Goals and Themes
PHASE 3 - Create Design Alternatives 7
• Overview
• Community Engagement
• Design Direction
• Design Alternative Graphics
PHASE 4 - Develop the Concept Plan 12
• Park Development Phasing
• North Park and Trail Concept
• Park and Trail Concept Graphics
PHASE 5 - Review Environmental Impact 15
• Environmental Review Process
• Next Steps
Appendices
A. Environmental Summary Report
B. Public Engagement Summary

INTRODUCTION
258
The first phase of the Concept Plan process was
to review background information, research
the site’s existing conditions, and perform
additional site studies to fully understand the
site—both its opportunities and constraints.

EXISTING CONDITIONS
The Lawrence-Mitty project site is roughly
a half mile in length and is located in the
Rancho Rinconada neighborhood on the
east side of Cupertino, between Saratoga
Creek and the Lawrence Expressway,
as seen in the context map below.

The middle of the site lies just across the
pedestrian bridge from Sterling Barnhart Park,
a small and well-used neighborhood play area.

To the south, reachable by the existing trail, is
the Rancho Rinconada pool. The site is within a
mile from Cupertino High School, Hyde Middle
School, and Sedgwick Elementary School.

Archbishop Mitty High School (private) is
directly across the Expressway from the site.

The south section of the site includes an existing
section of the Saratoga Creek Trail, which
extends north past the pedestrian bridge from
Sterling Barnhart Park and to a crosswalk at Mitty
Way. This portion has a paved multi-use trail,
site furnishings, signage, and irrigation. Trail
improvements along the south section are noted
in some of the design concepts and depend on the
community’s priorities and final budget. There
are also several small opportunity areas where the
land widens out between the trail and creek. At
the south end of the property is an existing sound
wall that continues beyond the end of the parcel.

The north section of the site, beyond the Mitty
Way intersection, is currently fenced and locked,
and offers a large flat space with the most
recreation potential of the parcels. This area was
last used as a construction storage and staging
area by the County and holds several large soil
piles and soil berms along the top of the creek
bank, both made up of a combination of soil and
construction debris. The former use has left behind
an impervious asphalt surface, which will need to
be addressed for successful drainage and planting.

As the site was recently annexed from the
City of San Jose into Cupertino, its location at
the edge of Cupertino and San Jose requires
coordination with San Jose and Santa Clara
County on several site factors, including
traffic, access, and utility connections.

The adjacent Lawrence Expressway creates
challenges with noise, particulates, access, and
parking. In addition, I-280, at the north end
of the site, contributes additional background
noise and makes bicycle and pedestrian
connections to the north challenging.

Saratoga Creek can provide the community
with unique passive recreation opportunities
and a greater connection to nature.

Development work adjacent to the creek will
need to consider many factors, including
environmental agency regulations, grading
and stormwater management for water
quality, habitat, and existing riparian trees.

The City’s and design team’s shared goal is
to create a concept plan that addresses each
challenge and is shaped by the site’s possibilities
and the community’s vision. The LawrenceMitty site has the potential to provide new recreation uses for the neighborhood, extend trail
connections in the city and region, and improve
ecological functions along the creek corridor.

TECHNICAL STUDIES
Phase 1 included the additional technical field
studies needed to gain a better understanding
of the site conditions. Studies included: 1) a
transportation study, 2) an environmental site
assessment, 3) a noise analysis, 4) a biological
resources survey, and 5) an arborist report.

The studies were completed by multiple
subconsultants with specific technical expertise
who developed detailed reports for each
element, with the key findings compiled
into a single document, Environmental
Summary Report (ESR) in June 2022.

The ESR is organized with a section for each
topic shown in the graphic below, each of
which includes a summary of findings and
development recommendations provided to
guide the site design towards an implementable
plan. Large exhibits and full versions of the
studies are located in the ESR’s appendix.

The report’s findings, in conjunction with
input from the community on priorities,
drove development of three initial design
alternatives for the site and, after more
community feedback, a final, preferred
design concept for the park and trail.

See the following two pages for graphic
summaries of the site’s Existing Conditions
and Opportunities and Constraints.

Site Context

ENVIRONMENTAL SUMMARY REPORT
Technical Analysis
• Site Overview
• Citywide Goals and Regulations
• Access and Circulation
• Noise Reduction
• Easements and Utilities
• Soils
• Stormwater and Hydrology
• Biological Resources
• Trees & Landscape
Opportunities and Constraints
• Maps
• Next steps
Appendix (with full details of site studies)

CONDUCT
TECHNICAL 1 SITE ANALYSIS
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 3 259
Sound wall
Sound
wall
Sterling
Barnhart
Park
Saratoga Creek Trail
LAWRENCE EXPRESSWAY HWY 280

STERLING BLVD
Barnhart Ave
Bike/Ped
Connection
Crossing to
Mitty Way
Saratoga Creek
1 2
3 4
5 6
7 8
1 2
3 4
6 5 7 8
Existing Saratoga
Creek Trail and
sound wall
Existing Saratoga Creek
Trail and open space
Saratoga Creek Crossing at Lawrence
Expressway and Mitty Way
Large open space Large open space
Miles Saratoga Creek Park/trail terminus
0 1/8
Feet
0 50 100 250 500

MAP LEGEND
Saratoga Creek
Lawrence-Mitty Park Boundary
Existing Trees
Existing Saratoga Creek Trail
Existing Access Point
Existing Bike/Pedestrian Route
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 4

1. SITE ANALYSIS: EXISTING CONDITIONS
260

MAP LEGEND
Saratoga Creek
Lawrence-Mitty Park Boundary
Existing Trees
Existing Saratoga Creek Trail
Existing Bike/Pedestrian Route
Tree Root Protection Zone
Existing Sound Wall
Open Space for Recreation
Soil Piles for Removal
• Limited visibility at sound walls
• Saratoga Creek constraints: environmental
agency regulations, no development
below top of bank, limited tree removal
• Remnant soil piles (construction debris)
• Remnant berms with mature tree
roots limit removal options
• Maintenance/emergency access points from
expressway impact potential noise mitigation
• Road noise and visibility
• Elevated levels of lead in soil
adjacent to expressway
• Utility coordination required with San
Jose (water, sewer, stormwater)
• Limited parking (on-street only)
• Elevated levels of lead in soil
adjacent to expressway
• Remnant impervious surface
negatively impacts creek health
• Remnant soil piles (construction debris)
• Remnant berms with mature
tree roots limit removal
• Saratoga Creek constraints: environmental
agency regulations, no development
below top of bank, limited tree removal
• Road noise and visibility
• Maintenance/emergency access points from
expressway impact potential noise mitigation
• Steep creek edge with stepped gabions
• Constrained park space
• No current bike/pedestrian connection north
• Highway noise from I-280
• Regional trail connection to Rancho
Rinconada pool and beyond
• Reduced noise level at sound walls
• Views to the creek possible with
berm and soil pile removals
• Small open spaces for passive
recreation or creek overlooks
• Existing maintenance/emergency access
• Existing trail and park amenities
• On-street connections to parks and
three schools less than a mile away
• Potential collaboration with schools for
environmental education opportunities
• Existing small neighborhood park with
play area and pedestrian bridge
• On-street connections to Archbishop
Mitty High School and John Mise Park
• Removal of soil piles (construction debris)
• Reduction of impervious surface,
improving creek health
• Large open space for a range of
recreation opportunities
• Views to the creek possible with
berm and soil pile removals
• Lower noise levels far from expressway
• Existing maintenance/emergency access
• Lower noise levels at sound wall
• Potential bike/pedestrian connection
north to Stevens Creek Blvd
Lawrence Expressway
Calvert
Drive
Crossing to
Mitty Way
see map north
Sterling Boulevard
see map south
Saratoga Creek
Lawrence Expressway
Sterling
Barnhart
Park
Crossing to
Mitty Way
Sterling Boulevard
Saratoga Creek
see map north
Lawrence Expressway
Sterling
Barnhart
Park
Crossing to
Mitty Way
Sterling Boulevard
Saratoga Creek
Lawrence Expressway
Calvert
Drive
Crossing to
Mitty Way
Sterling Boulevard
see map south
Saratoga Creek
14 13
15 16
17 18 19
20 10
11 12
1 2
3 6
4 5
8 7
9 1
2 3
4 5
6 7
8 9
11 12
13 14
15 16
17 18
19 20
10 1
2 3
4 5
6 7
8 9
11 12
13 14
15 16
17 18
10 1 2
3 4
5 6
7 8
9 11
12 13
14 15
16 17
18 10
Feet
0 50 100 200
Feet
0 50 100 200

MAP LEGEND
Saratoga Creek
Lawrence-Mitty Park Boundary
Existing Trees
Existing Saratoga Creek Trail
Tree Root Protection Zone
Soil Adjacent to Expressway
Gap in Existing Sound Wall
Soil Berms and Piles (approximate)
Constraints Map: South Opportunities Map: South
Constraints Map: North Opportunities Map: North
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 5

1. SITE ANALYSIS: OPPORTUNITIES AND CONSTRAINTS
261

EMERGING GOALS & THEMES
The information gathered from the engagement
efforts by the City of Cupertino, and MIG
provided important insights and an understanding
of the community’s goals and desires for the
Lawrence-Mitty Park & Trail. In summary,
to meet community needs and expectations
for the new park and trail extension, the
focus for the site design should include:
• Wildlife, nature, and education features
• A variety of features to appeal to all ages
• Bike trail extension from Mitty Way
to the large open space area
• Bike trail connection to the north
• Separated walking paths
• Play Features - Nature play and
play elements for older kids
• Comfort features: restrooms, seating
• Reduction of on-site noise levels
• Considerations for site safety
• Shade trees and native plants
for habitat enhancement
• Dogs in the park
The community engagement effort was
planned to ensure that the goals and ideas
from the neighborhood and potential users
are incorporated into the design of the
Lawrence-Mitty Park & Trail Concept Plan.

The following is a brief description of each
event and a synthesis of ideas and priorities
that emerged from this engagement effort.

A more complete engagement summary
is provided in the Appendix.

COMMUNITY EVENTS

POP-UP EVENTS
Bunny Run 5K – April 16, 2022 8:00 to 11:00
a.m. and Saturday Soccer at Creekside
Park – May 7, 10 a.m. to noon.

Goals: Inform the community of the project,
provide an opportunity for questions, elicit
input on desired park amenities, and continue
to build a list of interested community members
for the upcoming review of the alternatives.

Participants: Input from about 30
community members at each event.

Content: Project fact sheet, Site Analysis and
Project Overview boards were shared and
residents were encouraged to add their specific
comments to the boards using post-it notes.

VIRTUAL COMMUNITY MEETING
April 27, 2022 6:00 to 7:30 p.m.

Participants: Input from about 15 participants.

Content: The Zoom meeting included a
presentation on the project overview and analysis,
polling questions,and an open Q&A Session.

LAWRENCE-MITTY COMMUNITY SITE TOUR
April 30, 2022 10 a.m. to noon
Goals: This event provided an opportunity for
the community to visit the site that will become
the new park. Also, this was another opportunity
to gather feedback from residents on a range of
issues from their thoughts and concerns about
the trail, the access points, and their overall
experience and comfort within the site.

Participants: 60-70 community members.

Content: Participants were greeted at a welcome
station and given a Site Tour Handout for
the self-guided tour to four stations. Boards
showing project opportunities, existing site
conditions and challenges provided information
and space for users to add their comments.

ONLINE SURVEY
Open from April 4 - May 23, 2022
Participants: 563 respondents
Content: The survey included a variety of
question types designed to understand the
community’s priorities for the future park and
trail improvements at the Lawrence-Mitty site.

The bulk of the survey concentrated on desired
recreation experiences for the new park and
existing trail section. In addition, participants
were asked to provide anonymous information
about themselves, including if they live within
walking distance of Lawrence-Mitty Park,
how often they use the Saratoga Creek Trail,
and what neighborhood they reside in.

DEVELOP A
COMMUNITY 2 VISION
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 6 262
• Pop-Up Event at the Library
October 8, 2022 10 a.m. to noon
• Drop-in Site Visit at the future
park and trail site
October 15, 2022 10 a.m. to noon
• Virtual Community Meeting
October 17, 2022 6:00 to 7:00 p.m.
• Online Survey
October 3 – October 31, 2022
Staff explained in the community events that
there are cost tradeoffs for different recreation
elements, noise abatement, restrooms and
extents of work. The goal of sharing the
alternatives was to understand community
priorities, maximize the park’s benefits for
the community within the project budget and
guide direction of the final preferred plan.

DESIGN DIRECTION
Of the three concepts, the top-rated overall
design was Concept B – Story Trail, with
Concept A – Play it Up coming in second.

The top community priorities emerging from
Concept B were connecting with nature and
opening views to the creek, while interpretive
signage had low scores from the community.

We also took a look at the top preferred features
across all concepts. Items noted in bold below
were included in Concept B and in the final plan.

In addition, Nature Play and Play Features shown
in Concepts A & B were incorporated into the final
concept plan to the extent that budget allows.

Top Priorities for the Final Concept:
• Creekside Deck Overlook &
Creekside Benches
• Dry Creek Feature & Expanded Natural Areas
• Nature Play Areas (e.g., log
balance, climbing rock)
• Play Area Features (e.g.,
climbing net, nest swings)
Providing compatible active play alongside the
creekside nature experience will draw more of the
community to the area, which will be beneficial
to site safety. It will also help address what was
heard in both rounds of community engagement
for additional community goals and priorities:
• Include play for all – variety of
recreation opportunities for all ages,
abilities, range of user groups
• Support an interconnected recreation
system, future connections
• Provide social and resting spaces
Additional Community Input:

Restroom: We heard that inclusion of a restroom
in the park and trail area is important to many
community members for a successful, comfortable
park experience. Some neighbors near Sterling
Barnhart Park are opposed to a restroom in Sterling
Barnhart but support it elsewhere. Unfortunately,
providing one in the new park area is much more
costly due to utility connections, and will not fit
within the budget without losing the recreation
experiences the community is looking for.

Noise Reduction: The community would
like to reduce noise with either a sound
wall or a soil berm along the expressway at
the new park site. Cost, effectiveness and
park aesthetics will determine how much of
each is incorporated into the final plan.

OVERVIEW
In Phase 3, the design team incorporated what was
learned through the site analysis and community
visioning into three design alternatives—all
appropriate for the site and project budget.

All three alternatives included the
following design elements that were
prioritized by the community:
• Emphasis on Biking, Walking,
Play, Nature, and the Creek
• Multi-Use Trail Extension with space
for a future connection to the North
• Walking Trails separated from bikes
• Comfort and Safety Features: Seating,
sound wall, berm or fencing along the
expressway, and an emergency phone
• Soils: Existing soil piles in the open staging area
will be removed. Edge-of-creek soil berms will
be removed wherever it is safe for mature tree
roots. This soil may be repurposed as cover soil
along the expressway edge in the north area.
• Vegetation: Shade trees, native and drought
tolerant plants, enhanced riparian plantings,
and bioretention areas to treat runoff.

In addition to these baseline priorities, each
concept had a unique focus for its additional
recreation features. The focus and features
are summarized in the following concept
descriptions and a summary graphic on the next
page, followed by the three individual plans.

CONCEPT A: WHEEL FUN
Main Features: Bicycles and Fitness
Description: The park’s location is naturally
geared towards bikes and this concept goes all
in on bike features. The north area features a
small to mid-size BMX skills course for teens and
adults. Seating is provided for those who want to
watch, rather than perform, the tricks. The south
end offers younger kids a small pump track away
from the main trail. There are new walking trails,
fitness stations and small nature play elements to
appeal to all ages and those less bike-inclined.

CONCEPT B: STORY TRAIL
Main Features: Nature, Trails,
and Interpretive Features
Description: This concept makes the most of
the creek side setting and is the “most wild,
least developed” of the three alternatives. It has
more extensive planted area and tree cover, and
highlights bioretention areas by weaving them
into the path network using small footbridges to
cross. Features include an enhanced deck overlook
near the creek and nature play elements, including
a dry creek bed meant for kids to explore. Both
the south and north areas of the site offer new
walking trails and interpretive elements centered
on the site’s history and environmental education.

CONCEPT C: PLAY IT UP
Main Features: Play, Fitness and
Flexible Open Space
Description: This concept provides play and fitness
features that build on what is offered in Sterling
Barnhart’s small footprint to offer more for all
ages. Play elements include a net climber geared
towards ages 5-12, basket swings that work for
singles or doubles of all ages, and a log scramble
for nature play. Fitness stations are placed along
a loop path that surrounds a flexible lawn space.

COMMUNITY ENGAGEMENT
Next, the City and design team shared
the alternatives with the community
for feedback through four events:

CREATE
DESIGN 3 ALTERNATIVES
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 7 263

DESIGN ALTERNATIVES SUMMARY DIAGRAMS
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 8

3. DESIGN ALTERNATIVES
264
Simple
Exercise Stations
Bike Pump
Track (Kids)
New Restroom at
Sterling Barnhart Park
Small Nature Play
Elements Along Trail
Trail Turn-Around Bike Skills Courses
(Teen/Adult)
Creekside Bench
Overlooks
Miles
0 1/8
Feet
0 50 100 250 500
Saratoga Creek
Lawrence-Mitty Park Boundary
Tree Canopy
Proposed Bioswale Planting
Proposed Lawn Area
Proposed Recreation Feature
Protective Fencing
Proposed Sound Wall Extension
Existing Sound Wall
Existing Multi-Use Trail
Existing Pedestrian Route
Proposed Multi-Use Trail
Proposed Pedestrian Route
Future Trail Connection

MAP LEGEND
Sterling
Barnhart
Park
Existing
bridge
Crossing
at Mitty
Way
Lawrence
Expressway
2 3 4

LAWRENCE-MITTY

PARK AND TRAIL PLAN
1 5

BIKE PUMP

TRACK (KIDS)

EXERCISE

STATIONS

MAINTENANCE
ACCESS

MAINTENANCE

ACCESS BARRIER FENCE

ON EARTHEN BERM

SOUND WALL

EXTENSION
NATURE
PLAY
NATURE
PLAY
NATURE
PLAY

BIKE SKILLS COURSES
(TEENS/ADULTS)

FUTURE TRAIL

CONNECTION
NORTH
CREEK

OVERLOOK

CREEKSIDE

BENCHES

PEDESTRIAN
TRAIL

CREEKSIDE

BENCHES
NEW

RESTROOM

SEATING AT LAWN

EXERCISE

STATIONS

NATURE PLAY

TRAIL TURNAROUND
4 N
4 ATURE
4 COU
1 5
5 ERCIS
3 3 2
4 5
CONCEPT A: WHEEL FUN
Bicycles and Fitness

CONCEPT A - WHEEL FUN
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 9

3. DESIGN ALTERNATIVES
265
Large open space Large open space
Nature Play:

Log Balance
Interpretive Features
Along Trails
Dry Creek and
Expanded Natural Areas
Nature Play:

Climbing Rock
Creekside Deck
Overlook
Picnic Tables
Along Trail
Saratoga Creek
Lawrence-Mitty Park Boundary
Tree Canopy
Proposed Bioswale Planting
Proposed Lawn Area
Proposed Recreation Feature
Protective Fencing
Proposed Sound Wall Extension
Existing Sound Wall
Existing Multi-Use Trail
Existing Pedestrian Route
Proposed Multi-Use Trail
Proposed Pedestrian Route
Future Trail Connection

MAP LEGEND
Sterling
Barnhart
Park
Existing
bridge
Crossing
at Mitty
Way
Miles
0 1/8
Feet
0 50 100 250 500
Lawrence
Expressway

LAWRENCE-MITTY

PARK AND TRAIL PLAN
CONCEPT B: STORY TRAIL
Nature, Trails, and Interpretive Features
4 1 2 3

MAINTENANCE
ACCESS

INTERPRETIVE
FEATURE:

ORCHARD

PLANTING

CREEKSIDE DECK

OVERLOOK
INTERPRETIVE FEATURE:

INDIGENOUS HISTORY INTERPRETIVE
FEATURE:

OAK TREE

MAINTENANCE
ACCESS

SOUND WALL

EXTENSION

SOUND WALL

EXTENSION

DRY CREEK

AND EXPANDED

NATURAL AREAS
CREEK

OVERLOOK
CREEK

OVERLOOK
PICNIC
TABLES
PICNIC
TABLES
NATURE PLAY:

CLIMBING ROCK
NATURE PLAY:

LOG BALANCE

INTERPRETIVE
FEATURE:

SARATOGA
CREEK
INTERPRETIVE FEATURE:

NATIVE RESTORATION
NATURE PLAY:

DRY CREEKBED
1 3
1 Y CRE
4 2
2 3
3 1
1 2
1 FUTURE TRAIL

CONNECTION
NORTH

CONCEPT B - STORY TRAIL
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 10

3. DESIGN ALTERNATIVES
266
Creekside Bench
Overlooks Play Area: Net Climber
Fitness Station Circuit
Picnic Grove New Restroom at
Sterling Barnhart Park
Flex Lawn Play Area: Swings
Nature Play Area:

Log Scramble
Miles
0 1/8
Feet
0 50 100 250 500
Saratoga Creek
Lawrence-Mitty Park Boundary
Tree Canopy
Proposed Bioswale Planting
Proposed Lawn Area
Proposed Recreation Feature
Protective Fencing
Proposed Sound Wall Extension
Existing Sound Wall
Existing Multi-Use Trail
Existing Pedestrian Route
Proposed Multi-Use Trail
Proposed Pedestrian Route
Future Trail Connection

MAP LEGEND
Sterling
Barnhart
Park
Existing
bridge
Crossing
at Mitty
Way
Lawrence
Expressway

LAWRENCE-MITTY

PARK AND TRAIL PLAN
5 2
4 1 3

MAINTENANCE
ACCESS

PROTECTIVE FENCING
(EXISTING)

SOUND WALL

EXTENSION
FLEX
LAWN

CREEKSIDE
BENCH

PEDESTRIAN
TRAIL

PEDESTRIAN
TRAIL
PICNIC
GROVE
NATURE PLAY AREA:

LOG SCRAMBLE

PEDESTRIAN
TRAIL
PLAY AREA:

NET CLIMBER
PLAY AREA:

SWINGS

FITNESS

STATION CIRCUIT
1 5
5 1
1 3
CNIC
4 2

FUTURE TRAIL

CONNECTION
NORTH
CONCEPT C: PLAY IT UP
Play, Fitness, and Flexible Open Space
NEW

RESTROOM

CONCEPT C - PLAY IT UP
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 11

3. DESIGN ALTERNATIVES
267
A final concept plan was developed drawing
on the site’s opportunities & constraints,
the community’s vision for the park and
feedback on the draft concepts.

The community-driven design focuses on
extending the existing multi-use trail along
Saratoga Creek and providing a new 2.8-acre
park with open space, enhanced riparian and
upland plantings, extended bike trail, soft surface
trails, play opportunities, shade, seating, and
a berm separating it from the expressway.

PARK DEVELOPMENT PHASING
The visioning process and draft concepts included
the entire length of the site to understand
community needs and priorities. This community
input was used to establish the extent that
is feasible within the available construction
budget. Refer to the phasing graphic below for
the Current Phase and potential Future Phases.

The south section of trail has less park space
opportunity but is already a functioning public
space with a multi-use trail. While the north area
offers the significant open space opportunity,
it does require a large budget to transform the
former construction staging area into a park.

Based on community goals, the current project
budget is being prioritized in the north area to
create a new park and trail. With future funds,
a new restroom or large net climber could
be installed at the park site, and additional
improvements could be planned for the
south area and the north trail connection.

FUTURE IMPROVEMENTS -

SOUTH PARK AND TRAIL
Although the north area is the largest opportunity
on site, there are a number of community amenities
that could be implemented in the south section in
the future. There are several areas along the existing
trail for smaller park features. Possibilities include:
• Multi-use trail improvements (widening,
resurfacing, benches, wayfinding);
• Separated soft-surface pedestrian trails;
• New fencing or additional sound wall;
• Small park features (bike pump track, nature
play, exercise stations, picnic tables);
• Interpretive features;
• Removal of soil berm along the
creek edge, where possible;
• Enhanced riparian plantings; and
• Creekside benches or overlook.

FUTURE IMPROVEMENTS
- TRAIL CONNECTION NORTH
Extending the trail north to existing bike lanes at
Stevens Creek Boulevard was a priority for the
community and meets citywide goals identified
in the PRSMP, Bicycle Plan, and Climate Action
Plan. Stevens Creek Boulevard’s existing bike
lanes are currently Class II, and a Class IV
Separated Bikeway is proposed for much of it in
the future. However, several constraints make this
connection difficult – narrow conditions, multiple
fast-moving traffic lanes, elevated roadways, and
multiple jurisdictions (City of Cupertino, City of
San Jose, Santa Clara County, Caltrans, VTA, and
environmental agencies overseeing the creek).

The site’s property limits, project budget and
required jurisdictional coordination required makes
the trail extension impossible to achieve in this
phase. However, with future regional coordination
and additional budget this connection could be
achieved in the long-term. The project currently
includes a trail turnaround and maintenance
access point from Lawrence Expressway to
allow for this important future connection.

Sound wall
Sound
wall
Sterling
Barnhart
Park
Saratoga Creek Trail
LAWRENCE EXPRESSWAY HWY 280

STERLING BLVD
Barnhart Ave
Bike/Ped
Connection
Crossing to
Mitty Way
Saratoga Creek
Saratoga Creek Trail Sound wall
North Park and Trail:

Concept Plan
(Priority Project)
South Park and Trail:

Trail and recreation
enhancements
Trail Connection North:

Continuation to
Stevens Creek Blvd

DEVELOP THE

CONCEPT
PLAN 4

PARK AND TRAIL CONCEPT PHASING

FUTURE PHASE CURRENT PHASE FUTURE PHASE
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 12 268

NORTH PARK AND

TRAIL CONCEPT
The community’s preferred direction is a park
with a natural aesthetic, with walking trails,
enhanced native plantings, views of the creek and
new nature play opportunities, as shown in the
inspiration images and concept plan on the next
page. The community-driven design includes:
• Extending the existing multi-use
trail along Saratoga Creek, attracting
bicyclists and pedestrians to the park;
• Soft surface trails (decomposed granite) for
exercise and enjoying the natural surroundings;
• Play features that build on the offerings
at Sterling Barnhart, including Nest
Swings, a Log and Boulder Seating
Circle and a Climbing Rock;
• Shaded benches and picnic tables for
resting and small gatherings;
• Several creekside bench overlooks to
provide shady resting places with views
towards the creek and riparian plantings;
• Creekside deck overlook to provide
one purposeful opportunity for a
close-up view into the creek;
• Visible stormwater improvements, with
a dry creek collecting and routing water
into the bioretention area and improving
the water quality of the creek;
• Additional riparian plantings east of the
existing riparian zone along the creek;
• New upland plantings between the
riparian edge and expressway, replacing
the paved staging area with shade
trees and native and species;
• Open meadow with native
grasses and wildflowers;
• Landscape berm with trees, as
both a visual barrier and for noise
reduction from the expressway;
• Space set aside for a future restroom; and
• Maintenance access/trail turnaround
for a future connection to the North.

DESIGN CONSIDERATIONS -

SARATOGA CREEK
The project design emphasizes reconnecting
the community to nature and to Saratoga
Creek. At the same time, the design
minimizes and avoids impacts to the creek
and its riparian habitat with most proposed
elements avoiding these sensitive areas.

The project incorporates stormwater facilities
and bioretention areas in upland areas promote
groundwater infiltration and naturally treat onsite stormwater runoff before it reaches the creek.

The project will result in a net loss of impervious
surfaces through conversion of developed areas
into vegetated areas using native and droughttolerant species. The native planting will include a meadow with native grasses and wildflowers.

Play Area:

Nest Swings
Trail Turn-around Bench Overlook / Shaded Seating Area Creek Overlook Deck Boardwalk Crossing
Play Area:

Rock Climber
Nature Play Area:

Logs and Boulders
Bioretention Area /Stormwater (Dry Creek)
Native / Climate Adapted Landscaping
4 1 2 3 6
7 8
9 5

NORTH PARK AND TRAIL CONCEPT INSPIRATION IMAGES
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 13

4. CONCEPT PLAN
269
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Though the creekside deck overlook will extend
over the top of bank, the foundation and support
beams for the deck will be placed entirely outside of
the top of bank to minimize impacts to creek habitat.

Lighting is not planned due to its detrimental
effect on wildlife. The exception may be at a future
restroom, which is close to the expressway.

CONCEPT LEGEND
Park Boundary
Saratoga Creek (OHWM)
Top of Bank
Existing Vegetation:

Riparian Zone
Tree Canopy (Existing)
Tree Root Protection Zone
New Vegetation:

Trees (Proposed)
Stormwater Areas
Native/Climate Adapted Planting
Open Meadow Space
Circulation:

Paved Multi-use Path
Walking Path
Maintenance/Emergency Access
Recreation Features:

Play Area
Creekside Deck Overlook
Creekside Bench Overlook
Shaded Seating / Picnic Table
Inspiration Images:
# See image collage
8 7
2 4
3 5
6 1
9 Potential
Restroom
Location
(Future)
Stormwater
(Dry Creek)
Pedestrian
Crossing to
Mitty Way
(Existing) trail
continues
south
(New) trail
continues
north
Boardwalk
Crossings
Play Area:

Nest Swings
Creekside Bench
Overlook
/ Shaded Seating
Picnic
Grove
Creekside
Overlook
Deck
Pedestrian Bridge to
Sterling Barnhart Park
Existing bank
stabilization
Gated Entrance
Maintenance /
Emergency Access
Gated Entrance
Maintenance /
Emergency Access
Bioretention
Area
Landscape Berm
(6-8 ft high for noise
reduction, road buffer)
Nature Play Area
(Future Net Climber)
Play Area:

Rock Climber
Meadow Area
Boardwalk
Crossing
Trail Turn-around
Native / Climate
Adapted Landscaping
Future Trail
Connection North to
Stevens Creek Blvd

NORTH PARK AND TRAIL CONCEPT GRAPHIC
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 14

4. CONCEPT PLAN
270
Code section 1602. An initial meeting with these
resource agencies at this design phase will identify
specific concerns that can be addressed in the next
design phase and reflected in permit applications.

The meeting is currently being scheduled.

PROPOSED MITIGATION
The project is expected to be well-received by
the agencies, since all temporarily impacted
areas within riparian habitat will be restored to
pre-project conditions or better. If required, the
project team will consult with the agencies on
suitable compensatory mitigation for permanent
impacts to riparian habitat. In addition, impacts
to jurisdictional waters and biological resources
will be minimized through the implementation
of mitigation measures. Measures are expected
to include preconstruction surveys, nondisturbance buffers for special-status species (if present), prohibition of mono-filament netting,
avoidance of riparian habitat, avoidance of
waters, tree protection, and best management
practice (BMPs) to protect water quality.

NEXT STEPS
Next, this concept plan will be reviewed by City
Council for approval. As soon as the CEQA
review process is complete and City Council
signs off on both the plan and CEQA (winter
2024), City staff and a consultant team can
begin work on full construction drawings for
the North Park and Trail. Public bidding to
select a contractor is anticipated one year later
followed by a one-year construction period.

ENVIRONMENTAL

REVIEW PROCESS
CEQA
The California Environmental Quality Act (CEQA)
requires state and local government agencies to
inform decision makers and the public about the
potential environmental impacts of proposed
projects, and to reduce those environmental
impacts to the extent feasible. In accordance with
the CEQA Guidelines, the City of Cupertino has
been established as the lead agency for the project.

The lead agency is defined in the CEQA Guidelines
as, “the public agency which has the principal
responsibility for carrying out or approving
a project.” The lead agency is responsible for
preparing the appropriate environmental review
document under CEQA. The Cupertino City
Council serves as the decision-making body
for the City and is responsible for adopting the
CEQA document and approving the project.

The CEQA Guidelines states a public agency
shall prepare a proposed Negative Declaration
or a Mitigated Negative Declaration when:

1. The Initial Study shows that there is no
substantial evidence, in light of the whole
record before the agency, that the project may
have a significant effect on the environment, or

2. The Initial Study identifies potentially
significant effects, but:
- Revisions in the project plans made
before a proposed Mitigated Negative
Declaration and Initial Study are released
for public review would avoid the effects
or mitigate the effects to a point where
no significant effects would occur, and
- There is no substantial evidence, in light
of the whole record before the agency,
that the project as revised may have a
significant effect on the environment.

The project team has recently completed a
draft CEQA Initial Study (IS) that evaluates the
environmental impacts of the proposed Saratoga
Creek Nature Park Master Plan and provides
mitigation measures that would reduce potential
impacts to a less than significant level. Pursuant to
the CEQA Guidelines, the City has determined that
a Mitigated Negative Declaration is the appropriate
environmental review document for the LawrenceMitty Park and Trail Plan project. To ensure that the mitigation measures and project revisions
identified in a Mitigated Negative Declaration
(MND) are implemented, CEQA requires the
City to adopt a program for monitoring or
reporting on the revisions which it has required
in the project and the measures it has imposed
to mitigate or avoid significant environmental
effects. The City shall prepare a Mitigation,
Monitoring and Reporting Plan based on the
mitigation measures contained in the IS/MND.

The CEQA process requires that the draft IS/
MND be circulated for public review and
comments. To review the document and stay
informed of project status updates, please
see the City of Cupertino web page for the
Lawrence-Mitty Park and Trail Plan project at
https://engagecupertino.org/lawrencemitty.

PERMITTING
The project is adjacent to Saratoga Creek, and will
require work within the top of bank and riparian
habitat, including a proposed Creekside deck
overlook and pedestrian trails. It will not require
the placement of fill materials within the ordinary
high-water mark (OWHM) and therefore remains
outside of the jurisdiction of the U.S. Army Corps
of Engineers. However, these design features
are within the jurisdiction of the Regional Water
Quality Control Board (RWQCB) and the California
Department of Fish and Wildlife (CDFW) and will
require permits under the Porter-Cologne Water
Quality Control Act and California Fish and Game
REVIEW
ENVIRONMENTAL 5 IMPACT
City of Cupertino Lawrence-Mitty Park and Trail Concept Plan | 15 271
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10300 Torre Avenue
Cupertino, CA 95014
February 2024
Prepared by
2205 Junction Ave, Suite 205
San Jose, CA 95131

ATTACHMENT C
Lawrence-Mitty Park and Trail Project
Initial Study / Mitigated Negative Declaration
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Page i
Lawrence-Mitty Park and Trail Project City of Cupertino Initial Study/MND February 2024

PUBLIC WORKS DEPARTMENT
Chad Mosley, Director

CITY HALL
10300 TORRE AVENUE ~ CUPERTINO, CA 95014-3266
(408) 777-3354 ~ FAX (408) 777-3333
Draft Mitigated Negative Declaration
Project: Lawrence-Mitty Park and Trail Project
Lead Agency/ Project Proponent: City of Cupertino
Availability of Documents: The Initial Study for this Mitigated Negative Declaration is available for review at:

Cupertino City Hall
10300 Torre Avenue
Cupertino, CA 95014
Contact: Susan Michael, CIP Manager
City of Cupertino Public Works Department
10300 Torre Avenue
Cupertino, CA 95014
Phone: (408) 777-3354 (Public Works)
[email protected]

PROJECT DESCRIPTION
The project consists of the development of a new public park and extension of the existing Saratoga Creek Trail on an approximately 7.8-acre site, located along the west side of Lawrence Expressway, south of Interstate 280 and adjacent to Saratoga Creek in the City of Cupertino.

PROPOSED FINDINGS
The City of Cupertino has reviewed the attached Initial Study and determined that the Initial Study identifies potentially significant project effects, but:

1. Revisions to the project plans incorporated herein as mitigation would avoid or mitigate the effects to a point where no significant effects would occur; and

2. There is no substantial evidence, in light of the whole record before the agency, that the project may have a significant effect on the environment. Pursuant to California Environmental Quality Act (CEQA) Guidelines Sections 15064(f)(3) and 15070(b), a Mitigated Negative Declaration has been prepared for consideration as the appropriate CEQA document for the project.
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Lawrence-Mitty Park and Trail Project City of Cupertino Initial Study/MND February 2024

BASIS OF FINDINGS
Based on the environmental evaluation presented in the attached Initial Study, the project would not cause significant adverse effects related to aesthetics, agricultural and forestry resources, air quality, energy, geology/soils, greenhouse gas emissions, hazards/hazardous materials, land use/planning, mineral resources, noise, population/housing, public services, recreation, transportation, utilities/service systems, and wildfire. The project does not have impacts that are individually limited, but cumulatively considerable.

The environmental evaluation has determined that the project would have potentially significant impacts on biological, cultural and tribal cultural resources as described below.

Mitigation Measures
The project could result in significant adverse effects to biological resources, cultural resources, and tribal cultural resources. However, the project has been revised to include the mitigation measures listed below, which reduce these impacts to a less-than-significant level. With implementation of these mitigation measures, the project would not substantially degrade the quality of the environment, reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, or substantially reduce the number or restrict the range of a rare or endangered plant or animal.

Nor would the project cause substantial adverse effects on humans, either directly or indirectly.

Mitigation Measures Incorporated into the Project:

Mitigation Measure BIO-1a. Conduct Preconstruction Survey. No more than 24 hours prior to the date of initial ground disturbance, a pre-construction survey for southwestern pond turtle will be conducted within the impact area by a qualified biologist. The survey will consist of walking the limits of impact to ascertain the possible presence of the species. The qualified biologist will investigate all potential areas that could be used by southwestern pond turtle for feeding, sheltering, movement, and other essential behaviors.

A qualified biologist is an individual who shall have a degree in biological sciences or related resource management with a minimum of two seasonal years post-degree experience conducting surveys for each amphibian and reptile special-status species that may be present within the project areas. During or following academic training, the qualified biologist shall have achieved a high level of professional experience and knowledge in biological sciences and special-status species identification, ecology, and habitat requirements. Additionally, the qualified biologist must be permitted or authorized to handle and relocate southwestern pond turtle.

Mitigation Measure BIO-1b. Worker Environmental Awareness Program. All construction personnel will participate in a worker environmental awareness program.

These personnel will be informed about the possible presence of all special-status species and habitats associated with the species identified here to be potentially present in the parcel and that unlawful take of the animal or destruction of its habitat is a violation of law. Prior to construction activities, a qualified biologist will instruct all construction personnel about (1) the description and status of the species; (2) the importance of their 276
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Lawrence-Mitty Park and Trail Project City of Cupertino Initial Study/MND February 2024
associated habitats; (3) a list of measures being taken to reduce impacts on these species during project construction and implementation; and (4) measures to be followed if special-status species are encountered during construction activities. A fact sheet conveying this information will be prepared for distribution to the construction crew and anyone else who enters the project site.

Mitigation Measure BIO-1c. Install Wildlife Exclusion Barrier. Prior to any ground disturbance in the work area, a temporary wildlife exclusion barrier will be installed along the limits of disturbance. A qualified biologist will inspect the area prior to installation of the barrier. The barrier will be designed to allow the southwestern pond turtles to leave the work area and prevent them from entering the work area. The fence will remain in place until all development activities have been completed. This barrier will be inspected daily and maintained and repaired as necessary to ensure that it is functional and is not a hazard to southwestern pond turtles on the outer side of the barrier.

Mitigation Measure BIO-1d. Construction Monitoring. A qualified biologist or biological monitor will be onsite during all project activities that may result in the take of any specialstatus species. The qualified biologist will be given the authority to freely communicate verbally, by telephone, by electronic mail, or in writing at any time with construction personnel, any other person(s) at the project site or otherwise associated with the project, and regulatory agencies (e.g., USFWS or CDFW). The qualified biologist or biological monitor will have oversight over implementation of all the mitigation measures and will have the authority and responsibility to stop project activities if they determine any of the measures are not being fulfilled.

Mitigation Measure BIO-2a: Pre-Construction Survey for San Francisco DuskyFooted Woodrats. Within 30 days prior to the start of construction activities, a qualified biologist shall map all San Francisco dusky-footed woodrat houses within a 50-foot buffer around the project footprint. Environmentally sensitive habitat fencing shall be placed to protect the houses with a minimum 50-foot buffer. If a 50-foot buffer is not feasible, a smaller buffer may be allowable based on advice from a qualified biologist with knowledge of woodrat ecology and behavior, or Mitigation Measure BIO-2b may be implemented.

Mitigation Measure BIO-2b: Relocation of Woodrat Houses. In the unlikely event that one or more woodrat houses are determined to be present and physical disturbance or destruction of the houses cannot be avoided, then the woodrats shall be evicted from their houses and the nest material relocated outside of the disturbance area, prior to onset of activities that would disturb the house, to avoid injury or mortality of the woodrats. The reproductive season for San Francisco dusky-footed woodrats typically starts in February or March and breeding activity usually continues to July but can extend into September. Thus, relocation efforts should be completed in the fall to 277
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minimize the potential for impacts on young woodrats in the house. Additionally, it is recommended that the period between the completion of the relocation efforts and the start of construction activities be minimized to reduce the potential for woodrats to reconstruct houses in the project footprint prior to the start of construction activities.

Mitigation Measure BIO-3a: Pre-Construction Survey for Roosting Bats. A survey of culverts within the project site, including a 50-foot buffer (as feasible) shall be conducted by a qualified bat biologist no less than 30 days before the start of construction-related activities (including but not limited to mobilization and staging, clearing, grubbing, tree removal, vegetation removal, fence installation, demolition, and grading). If construction activities are delayed by more than 30 days, an additional bat survey shall be performed.

The survey may be conducted at any time of year but should be conducted in such a way to allow sufficient time to determine if special-status bats or maternity colonies are present on the site. The results of the survey shall be documented.

Mitigation Measure BIO-3b: Acoustic Survey. If suitable habitat is present and signs of bat occupancy are detected, a follow-up dusk emergence survey shall be conducted no less than 30 days prior to construction activities. A dusk survey will determine the number of bats present and will also include the use of acoustic equipment to determine the species of bats present. The results of the survey shall be documented. If an active roost is observed within the project site, Mitigation Measure BIO-3c shall apply.

Mitigation Measure BIO-3c: Roost Buffer. If a day roost or a maternity colony is detected and is found sufficiently close to work areas to be disturbed by construction activities, the qualified biologist shall determine the extent of a construction-free buffer zone to be established around the roost in consultation with CDFW. Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading shall be permitted. Monitoring shall be required to ensure compliance with relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.

Mitigation Measure BIO-4: Pre-Construction/Pre-Disturbance Survey for Nesting Birds.
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Avoidance. To the extent feasible, construction activities should be scheduled to avoid the nesting season. If construction activities are scheduled to take place outside the nesting season, all impacts to nesting birds protected under the MBTA and California Fish and Game Code would be avoided. The nesting season for most birds in Santa Clara County extends from February 1 through August 31.

Pre-Construction Surveys. If it is not possible to schedule construction activities between September 1 and January 31, then preconstruction surveys for nesting birds shall be conducted by a qualified biologist to ensure that no nests would be disturbed during project implementation. These surveys shall be conducted no more than five days prior to the initiation of any site disturbance activities and equipment mobilization, including tree, shrub, or vegetation removal, fence installation, grading, etc. If project activities are delayed by more than five days, an additional nesting bird survey shall be performed.

During this survey, the biologist will inspect all trees and other potential nesting habitats (e.g., trees, shrubs, culverts) in and immediately adjacent to the impact area for nests.

Active nesting is present if a bird is building a nest, sitting in a nest, a nest has eggs or chicks in it, or adults are observed carrying food to the nest. The results of the surveys shall be documented.

If an active nest is found sufficiently close to work areas to be disturbed by these activities, the biologist will determine the extent of a construction-free buffer zone to be established around the nest (typically up to 1,000 feet for raptors and up to 250 feet for other species), to ensure that no nests of species protected by the Migratory Bird Treaty Act MBTA and California Fish and Game Code will be disturbed during project implementation. Within the buffer zone, no site disturbance and mobilization of heavy equipment, including but not limited to equipment staging, fence installation, clearing, grubbing, vegetation removal, demolition, and grading will be permitted until the chicks have fledged. Monitoring shall be required to ensure compliance with MBTA and relevant California Fish and Game Code requirements. Monitoring dates and findings shall be documented.

Mitigation Measure CUL-1: The City of Cupertino (City) shall note on any plans that require ground disturbing excavation that there is a potential for exposing buried cultural resources including prehistoric Native American burials. Significant prehistoric cultural resources are defined as human burials, features or other clusterings of finds made, modified or used by Native American peoples in the past. The prehistoric and protohistoric indicators of prior cultural occupation by Native Americans include artifacts and human bone, as well as soil discoloration, shell, animal bone, sandstone cobbles, ashy areas, and baked or vitrified clays. Prehistoric materials may include:
a. Human bone - either isolated or intact burials.
b. Habitation (occupation or ceremonial structures as interpreted from rock rings/features, distinct ground depressions, differences in compaction (e.g., house floors).
c. Artifacts including chipped stone objects such as projectile points and bifaces; groundstone artifacts such as manos, metates, mortars, pestles, 279
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grinding stones, pitted hammerstones; and, shell and bone artifacts including ornaments and beads.
d. Various features and samples including hearths (fire-cracked rock; baked and vitrified clay), artifact caches, faunal and shellfish remains (which permit dietary reconstruction), distinctive changes in soil stratigraphy indicative of prehistoric activities.
e. Isolated artifacts.

Mitigation Measure CUL-2: It is recommended that prior to the start of ground disturbing construction, the City should implement a Worker Awareness Training (WAT) program for cultural resources. Training shall be required for all construction personnel participating in ground disturbing construction to alert them to the archaeological sensitivity of the project area and provide protocols to follow in the event of a discovery of archaeological materials.

The training shall be provided by a Registered Professional Archaeologist (RPA).

Mitigation Measure CUL-3: The City shall retain a Professional Archaeologist on an “oncall” basis during ground disturbing construction to review, identify and evaluate any potential cultural resources that may be inadvertently exposed during construction. The archaeologist shall review and evaluate any discoveries to determine if they are historical resource(s) and/or unique archaeological resources under the California Environmental Quality Act (CEQA).

Mitigation Measure CUL-4: In accordance with Section 7050.5 of the California Health and Safety Code, if potential human remains are found, immediately notify the lead agency (City of Cupertino or Santa Clara County) staff and the Santa Clara County Coroner of the discovery. The coroner would provide a determination regarding the nature of the remains within 48 hours of notification. No further excavation or disturbance of the identified material, or any area reasonably suspected to overlie additional remains, can occur until a determination has been made. If the County Coroner determines that the remains are, or are believed to be, of Native American ancestry, the coroner would notify the Native 280
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American Heritage Commission within 24 hours. In accordance with California Public Resources Code, Section 5097.98, the Native American Heritage Commission must immediately notify those persons it believes to be the Most Likely Descendant from the deceased Native American. Within 48 hours of this notification, the Most Likely Descendant would recommend to the lead agency their preferred treatment of the remains and associated grave goods.

Mitigation Measure TRIB-1: It is possible for a lead agency to determine that an artifact is considered significant to a local tribe, and thus considered a significant resource under CEQA, even if it would not otherwise be considered significant under CEQA. As such, all Native American tribal finds are to be considered significant until the lead agency has enough evidence to make a determination of significance. In the event that Native American archaeological resources are discovered, or suspected to have been discovered, Native American monitoring will be required before further ground disturbance shall be allowed.

Conditions of Approval
Standard Permit Condition: The following measures shall be applied to development of the project site to reduce and/or avoid impacts to paleontological resources:
• If vertebrate fossils or other paleontological resources are discovered during construction, all work on the site shall stop immediately until a qualified professional paleontologist can assess the nature and importance of the find and recommend appropriate treatment. Treatment may include preparation and recovery of fossil materials so that they can be housed in an appropriate museum or university collection, and may also include preparation of a report for publication describing the finds. The City of Cupertino’s Project Manager or other suitable representative shall be responsible for submitting the paleontologist’s report to the Director of Public Works, and implementing the recommendations of the qualified professional paleontologist. The representative shall submit a report to the Director of Public Works indicating how the paleontologist’s recommendations were complied with as soon as all measures have been incorporated into the project.

DRAFT CITY OF CUPERTINO MITIGATED NEGATIVE DECLARATION
As provided by the Environmental Assessment Procedure adopted by the City Council of the City of Cupertino on May 27, 1973, and amended on March 4, 1974, January 17, 1977, May 1, 1978, and July 7, 1980, the City of Cupertino City Council has reviewed the proposed project described below to determine whether it could have a significant effect on the environment as a result of project implementation. “Significant effect on the 281
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environment” means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affect by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance (CEQA Guidelines Section 15382).

PROJECT INFORMATION AND LOCATION
Project Name: Lawrence-Mitty Park and Trail Project
Applicant: City of Cupertino
Location: City of Cupertino

PROJECT DESCRIPTION
The 7.83-acre Lawrence-Mitty project site is situated on the east side of Cupertino, between Saratoga Creek and the Lawrence Expressway. The City of Cupertino acquired it with the intent to develop a new park and extend the existing Saratoga Creek Trail. The trail currently terminates at a point on the site adjacent the intersection of Lawrence Expressway and Mitty Way, where a chain link fence and locked gate prevent entry to the remainder of the project site. The project would extend the trail northward through the site to Calvert Drive.

FINDINGS OF DECISION MAKING BODY
The City Council finds the project described is consistent with the General Plan and will not have a significant effect on the environment based on the analysis completed in the attached Initial Study. The City, before the public release of this draft Mitigated Negative Declaration (MND), has agreed to make project revisions that mitigate the project’s effects to a less than significant level. The City agrees to implement the mitigation measures identified in the attached Initial Study and summarized below.

PUBLIC REVIEW PERIOD
The 30-day public circulation period for the Initial Study and draft MND began on February 12, 2024 and ended on March 13, 2024.

Chad Mosley
Director of Public Works

CERTIFICATE OF THE CITY CLERK
This is to certify that the above Mitigated Negative Declaration was filed in the Office of the City Clerk of the City of Cupertino on ____________, 2024. 282
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____________________________________
Kirsten Squarcia
City Clerk
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LAWRENCE-MITTY PARK AND TRAIL PROJECT INITIAL STUDY

TABLE OF CONTENTS
CHAPTER 1. INTRODUCTION................................................................................................... 1

1.1 Project Background and Overview .............................................................................. 1

1.2 Regulatory Guidance .................................................................................................... 1

1.3 Lead Agency Contact Information ................................................................................ 2

1.4 Document Purpose and Organization........................................................................... 2 CHAPTER 2. PROJECT DESCRIPTION.................................................................................... 3

2.1 Project Purpose ............................................................................................................ 3

2.2 Project Location And Surrounding Land USes ............................................................. 3

2.3 Project Elements.........................................................................................................13

2.4 Standard Design and Construction Measures ............................................................17 CHAPTER 3. ENVIRONMENTAL CHECKLIST AND RESPONSES .......................................23

3.1 Aesthetics ...................................................................................................................28

3.2 Agricultural and Forest Resources .............................................................................32

3.3 Air Quality ...................................................................................................................34

3.4 Biological Resources ..................................................................................................42

3.5 Cultural Resources .....................................................................................................70

3.6 Energy ........................................................................................................................78

3.7 Geology and Soils.......................................................................................................80

3.8 Greenhouse Gas Emissions .......................................................................................85

3.9 Hazards and Hazardous Materials .............................................................................90

3.10 Hydrology and Water Quality ....................................................................................99

3.11 Land Use and Planning ...........................................................................................109

3.12 Mineral Resources ..................................................................................................112

3.13 Noise........................................................................................................................114 285
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3.14 Population and Housing..........................................................................................128

3.15 Public Services ........................................................................................................129

3.16 Recreation ...............................................................................................................133

3.17 Transportation..........................................................................................................137

3.18 Tribal Cultural Resources ........................................................................................141

3.19 Utilities and Service Systems ..................................................................................144

3.20 Wildfire.....................................................................................................................148

3.21 Mandatory Findings of Significance.........................................................................150 CHAPTER 4. LIST OF REFERENCES ...................................................................................153 CHAPTER 5. LIST OF PREPARERS .....................................................................................159 TABLES
Table 2.4-1: Standard Design and Construction Measures ........................................................17 Table 3.3-1: Potentially Applicable BAAQMD Rules and Regulations........................................36 Table 3.3-2: Construction Activity, Duration, and Typical Equipment .........................................38 Table 3.3-3: Estimated Project Construction Criteria Air Pollutant Emissions ............................39 Table 3.4-1: Summary of Existing Land Cover Types, Habitats, and Natural Communities.......44 Table 3.13-1: Typical Outdoor and Indoor Noise Levels...........................................................115 Table 3.13-2: Hourly Average Noise Levels at LT-01 (dBA Leq) ...............................................120 Table 3.13-3: Measured Noise Levels on Thursday 02/17/22 ..................................................121 Table 3.13-4: Caltrans’ Vibration Criteria for Building Damage ................................................122 Table 3.13-5: Caltrans’ Vibration Criteria for Human Response...............................................123 Table 3.13-6: Daytime and Nighttime Maximum Noise Levels .................................................124 Table 3.13-7: Brief Daytime Noise Incident Levels ...................................................................124 Table 3.13-8: Typical Construction Equipment Noise Levels ...................................................125 286
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FIGURES
Figure 2.2-1: Project Location....................................................................................................... 5 Figure 2.2-2: Project Vicinity ......................................................................................................... 6 Figure 2.2-3: Site Photos 1 & 2..................................................................................................... 7 Figure 2.2-4: Site Photos 3 & 4..................................................................................................... 8 Figure 2.2-5: Site Photos 5 & 6..................................................................................................... 9 Figure 2.2-6: Site Photos 7 & 8...................................................................................................10 Figure 2.2-7: Site Photos 9 & 10................................................................................................. 11 Figure 2.2-8: Site Photos 11 & 12...............................................................................................12 Figure 2.3-1: Concept Plan – Phasing ........................................................................................15 Figure 2.3-2: Concept Plan – North ............................................................................................16 Figure 3.4-1: Land Cover Types, Habitats, and Natural Communities........................................62 Figure 3.4-2: Land Cover Types, Habitats, and Natural Communities........................................63 Figure 3.4-3: Land Cover Types, Habitats, and Natural Communities........................................64 Figure 3.4-4: Land Cover Types, Habitats, and Natural Communities........................................65 Figure 3.13-1: Ambient Noise Monitoring Locations ................................................................. 119

APPENDICES
Appendix A: Air Quality Emissions Report
Appendix B: Biological Constraints Analysis
Appendix C: Phase I Environmental Site Assessment Update and Phase II Soil Quality Evaluation Appendix D: Transportation Memo
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Chapter 1. Introduction
This Initial Study (IS) evaluates the potential environmental effects of a proposed project for the development of a new public park and extension of an existing creekside trail in the City of Cupertino.

Cupertino City CouncilJuly 2, 2024

Cupertino City Council
July 2, 2024