Cupertino City Council
December 12, 2025

CITY OF CUPERTINO
CI

TY COUNCIL
AGENDA
10300 Torre Avenue, City Hall Conference Room C
Friday, December 12, 2025
9:00 AM
Non-Televised Special Meeting

IN-PERSON AND PUBLIC PARTICIPATION INFORMATION
OP
TIONS TO OBSERVE:

Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at City Hall, Conference Room C, 10300 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) Watch a live stream online at https://youtube.com/@cupertinocitycommission OPTIONS TO PARTICIPATE AND COMMENT:

Members of the public wishing to address the City Council may do so in the following ways:
1) Appear in person at Cupertino Community Hall.

A. Speakers are requested to complete a Speaker Card. While completion of Speaker Cards is voluntary and not required to attend the meeting or provide comments, it is helpful for the purposes of ensuring that all speakers are called upon.

B. Speakers must wait to be called, then proceed to the lectern/podium and speak into the microphone when recognized by the Mayor.

C. Speakers are limited to three (3) minutes each. However, the Mayor may reduce the speaking time depending on the number of people who wish to speak on an item. A speaker representing a group between 2 and 5 members of the public in attendance may have up to 2 minutes per group member to speak, up to 10 minutes maximum.

D. Please note that due to cyber security concerns, speakers are not allowed to connect any personal devices at the lectern/podium. However, speakers that wish to share a document (e.g. presentations, photographs or other documents) during oral comments may do so in one of the following ways:
a) E-mail the document to [email protected] by 4:00 p.m. on Thursday, December 11 and staff will advance the slides/share the documents during your oral comment. 2) Written Communications as follows:

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A. E -mail comments to the City Council for Open Session at [email protected] as follows:
a. E-mail comments must be received by 4:00 p.m. on Thursday, December 11 in order to be forwarded to the City Council before the meeting.
b. Emailed comments received following agenda publication but prior to, or during, the meeting, will be posted to the City’s website after the meeting. c. These e-mail comments will also be received by each City Councilmember, the City Manager, and the City Clerk’s Office. Comments on non-agenda items sent to any other email address will be included upon the sender's request.

B. Regular mail or hand delivered addressed to the: City Council, City Hall, 10300 Torre Avenue, Cupertino, CA 95014

NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL N
OTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby called for Friday, December 12, 2025, commencing at 9:00 a.m. in City Hall, Conference Room C, 10300 Torre Avenue, Cupertino, California 95014. Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, “Special Meeting."

SPECIAL MEETING

CALL TO ORDER
R

OLL CALL

CITY COUNCIL TRAINING

1. Subject: City Council Training
Recommended Action: C onduct City Council Training
A - City Council Procedures Manual
B - Brown Act
C - Rosenberg's Rules of Order

ACTION CALENDAR

2. Subject: 1) Conduct Study Session on the Mary Avenue Project (“Project”), including project history, project siting, the conditional transfer of City-owned property rights, affordability restrictions, and remaining steps prior to entitlement and closing on the Project; and 2) Consider Appointing Negotiator(s) for the possible transfer of certain rights to City-owned property (APN: 326-27-053), in the form of a ground lease or a sale with the City’s future right to repurchase (Continued from December 2, 2025)

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Recommended Action: 1: Study Session completed on December 2, 2025. No further action to be taken.
2: Appoint the City Manager and the Interim City Attorney as Negotiators with the Nonprofit Public Benefit Corporation, Charities Housing Development Corporation of Santa Clara County (the “Developer”), regarding the possible transfer of property rights in the form of a ground lease or sale with the City’s future right to repurchase. (The public comment period for this item was conducted and closed on December 2, 2025; the public comment period remains closed such that no further public comment will be taken.)
Staff Report
A - Staff Report dated March 15 2022
B - Parcel Map recorded on May 2 2023
C - Staff Report dated February 6 2024
D – Exclusive Negotiating Agreement executed on April 9 2024 E - Staff Report dated September 4 2024
F - Staff Report dated April 15 2025
G - Staff Report dated July 15 2025
H - Existing Conditions and Demolition Plan
I - Mary Avenue Project FAQ

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

For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 95014; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a final decision of the City Council must be brought within 90 days after a decision is announced unless a shorter time is required by State or Federal law.

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

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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 City web site.

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

2.08.100 written communications sent to the City Council, Commissioners or 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 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
25-14592 Agenda Date:
12/12/2025 Agenda #: 1.

Subject: City Council Training
Conduct City Council Training
CITY OF CUPERTINO Printed on 12/9/2025Page 1 of 1
powered by Legistar™
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RESOLUTION NO. 25-021

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

REAFFIRMING AMENDMENTS TO THE CUPERTINO CITY COUNCIL

PROCEDURES MANUAL
WHEREAS, on February 7, 2023, the Cupertino City Council adopted Resolution No. 23-021, adopting the Cupertino City Council Procedures Manual; and

WHEREAS, on March 19, 2024, the City Council adopted Resolution No. 24-024, amending the City Council Procedures Manual; and

WHEREAS, on March 4, 2025, the City Council approved amendments to the City Council Procedures Manual.

WHEREAS, on March 18, 2025, the City Council reaffirmed amendments to the City Council Procedures Manual.

NOW, THEREFORE, BE IT RESOLVED that:

1. The City Council hereby adopts the Cupertino City Council Procedures Manual, as amended, attached hereto as Exhibit A.

2. Resolution No. 24-024 and any other procedures, policies, or rules that are inconsistent with the Council Procedures adopted herein are hereby repealed and rescinded.

3. This Resolution shall take effect on March 19, 2025.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 18th day of March, 2025, by the following vote:

Members of the City Council

AYES: Chao, Moore, Wang
NOES: Fruen, Mohan
ABSENT: None
ABSTAIN: None
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Resolution No. 25-021

SIGNED:

Liang Chao, Mayor
City of Cupertino
Date
ATTEST:

Kirsten Squarcia, City Clerk Date
3/21/2025
3/21/2025
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City of Cupertino
City Council Procedures
Manual
Attachments:

Ex. A – Elected Officials’
Compensation Program
Ex. B – Council Technology Policy
Ex. C – Resolution No. 07-103
Ex. D – Municipal Code Chapter 2.17
Effective Date:

March 18, 2025
Responsible Departments:

City Manager’s Office
Related Policies & Notes:

See Exhibits A–D.

1. Introduction

1.1 Purpose. The purpose of this Manual is to promote communication, understanding, fairness, and trust among the members of the City Council, City staff, and members of the public concerning their roles, responsibilities, and expectations for management of the business of the City of Cupertino.

1.2 Values. Courtesy and respect for individual points of view should be practiced at all times. All Councilmembers shall respect each other’s right to disagree. All Councilmembers shall act with decorum and courtesy.

1.3 Brown Act. All actions of the City Council and City commissions, committees, and subcommittees shall comply with the Ralph M. Brown Act.

1.4 No Cause of Action Against City. This Manual is intended to govern the internal policies and procedures. Violations of this Manual are enforceable solely through enforcement pursuant to Section 10. Nothing in this Manual is intended to give rise to a claim or cause of action against the City, or any City Councilmember or other City official.

2. Selection of the Mayor and Vice Mayor

2.1 Selection of Mayor and Vice Mayor. The Mayor and Vice Mayor shall be selected annually at a special meeting on the second Thursday of December.
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2.2 Removal of Mayor and Vice Mayor. The Mayor or Vice Mayor may be removed from office, for cause, by a 4/5ths affirmative vote of the members. Removal for cause shall mean removal of a Councilmember because of such member’s (a) willful and continued failure substantially to perform their duties, (b) conviction for, or guilty plea to, a felony, or a crime involving moral turpitude, (c) abuse of illegal drugs or other controlled substances or habitual intoxication, or (d) other illegal activities. The removal should proceed with a formal warning, which states with proven evidence of the member’s failure to perform their duties and proposed corrective measures. The Mayor or Vice Mayor must be advised of the proposed cause for removal at least 72 hours before any action is taken. If the Mayor is removed from office, the Vice Mayor shall become Mayor. If either officer is removed from office, the Vice Mayor shall be appointed from among the remaining three Councilmembers. shall be appointed from among the remaining three Councilmembers.

3. Councilmember Committees and Subcommittees

3.1 Appointment. The Mayor shall appoint Councilmembers to standing and ad hoc committees and subcommittees established by the City Council, subject to ratification by the Council at its next regular meeting. It will be the responsibility of the committees and subcommittees to inform and submit recommendations to the Council.

3.2 Instructions and Expectations. The Council shall make certain that all Council committees and subcommittees are properly instructed in their assigned scope of work and responsibilities. The committee’s or subcommittee’s jurisdiction shall be defined in writing and approved by a majority of the City Council. All Council committees and subcommittees having a continuing or indefinite jurisdiction shall be subject to the Brown Act.

3.3 Reporting. Council committee and subcommittee members are to keep the Council informed of the work and progress of their committee or subcommittee. These reports or minutes shall be made in writing whenever a recommendation is made to the Council. 4 Other City Commissions and Committees

4.1 Responsibility. The Council will make appointments to City’s commissions and committees. Qualifications to serve on commissions 9 CC 12-12-2025
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and committees shall be set forth in the Municipal Code or by a resolution or motion of the Council that is not inconsistent with the Municipal Code. Appointment of Councilmembers to City committees shall be governed by the procedures in Section 3.

4.2 Attendance at Council Meetings. The Chair or another commission member appointed by the Chair shall attend City Council meetings whenever the commission makes a recommendation to Council regarding an item of business on the Council agenda. The commission liaison shall promptly notify the Chair after an item requiring a commissioner’s appearance is placed on a future City Council agenda.

4.3 Performance Expectations. The Council shall make certain that all commissions and committees are properly instructed on their responsibilities and performance expectations. This will include the issuance of a Council -app
roved Commission and Committee
Handbook and a mandatory annual training session for all Commission and Committee members.

4.4 Appointment. Commission and Committee applicants will be interviewed by the Council before being voted on by the Council in a noticed public meeting. Applicants are considered by motion and appointed by a majority vote of Council. Two members of an immediate family or persons residing in the same household shall not be allowed to serve simultaneously on the same commission or committee.

Immediate family members residing in the same household as a Councilmember are not eligible for appointment to any commission or committee.

4.5 Removal. The City Clerk shall notify the City Council and make a recommendation for potential removal of commission members for failure to comply with attendance policies adopted in the Commissioner’s Handbook. Council retains full discretion to review commission and committee member performance and may take disciplinary action as needed, including removal from the commission or committee.

4.6 Undue Influence on Commissioners. Councilmembers should not attempt to influence or publicly criticize commission recommendations or to influence or lobby individual commission members on any item under their consideration. It is important for commissions to be able to make objective recommendations to the City Council on items before 10 CC 12-12-2025
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them. Councilmembers that attempt to influence commission positions on an item may prejudice or hinder their role in reviewing the commission’s recommendation as a member of the City Council.

Individual Councilmembers shall have the right to attend meetings of Cupertino commissions and other Cupertino governmental bodies but shall refrain from speaking or becoming involved in deliberations.

5. Administrative Matters

5.1 Attendance. City Councilmembers acknowledge that attendance at lawful meetings of the City Council is part of their official duty.

Councilmembers shall make a good faith effort to attend all such meetings. Council members shall notify the Mayor or the City Clerk if they will be absent from a meeting.

Council attendance will be noted in the agenda of the next regular meeting and thereafter for that calendar year, if five or more regular meetings are missed.

5.2 Correspondence. Proposed correspondence from the Mayor or other Councilmembers on City stationery should generally be reviewed by the Council in draft form prior to release. On occasion, there are urgent requests from the League of California Cities for correspondence concerning legislation directly affecting municipalities. If the Mayor and the City Manager agree that the League’s position corresponds with that of the Council, the Mayor may send a letter without first obtaining Council approval. City letterhead will be made available for routine correspondence (e.g., thank you notes). Official correspondence (including email) from Councilmembers should be respectful and professional.

5.3 Regional Bodies. The Mayor shall appoint Councilmembers to represent the City of Cupertino on regional bodies subject to ratification by the Council at its next regular meeting. The Mayor should endeavor to provide all Councilmembers a fair opportunity to represent the City.

The positions taken by the appointed representatives should be in alignment with the positions that Council has taken on issues that directly impact the City of Cupertino. If an issue arises that is specific to Cupertino and Council has not taken a position, the issue should be discussed by Council prior to taking a formal position at a regional board meeting to assure that it is in alignment with Council’s position. Council representatives to such various boards shall keep the Council informed of ongoing business through brief oral or written reports to the Council. 11 CC 12-12-2025
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Councilmembers shall make a good faith effort to attend all regional meetings that require a quorum of the appointed members to convene a meeting. Attendance should not be less than 75% of all scheduled meetings. If a Councilmember is unable to attend, they should notify their alternate as far in advance of the meeting as possible so as to allow the alternate to attend. To ensure continuity of the City’s representation, the alternate should receive all correspondence from the regional bodies that is sent to the primary representative.

5.4 Responses to Public. It will be the responsibility of the City Manager to ensure a response is provided to public correspondence for informational requests addressed to the Council. Staff shall respond to all requests for services as appropriate, and the City Manager shall keep Council informed of the City response.

5.5 Reimbursement. City Councilmembers may be reimbursed for expenses for travel to and lodging at conferences or meetings related to their role as a Councilmember as stated in the Elected Officials’ Compensation Program, as may be amended from time to time (Exhibit A). Any additional expenses that fall outside the scope of this policy may be reimbursed only if approved by the City Council, at a public meeting before the expenses are incurred. Any request for reimbursement of expenses shall be accompanied by an expense form and receipts to document the expenditure. These documents are public records subject to disclosure under the California Public Records Act. Councilmembers shall be eligible to receive City
-i
ssued hardware and software for the
conduct of official business pursuant to the Council Technology Policy (Exhibit B).

5.6 Council Training. Any member of the City Council and City commissions or advisory committees formed by the City Council shall receive ethics and anti-h
arassment training required by state law. New
members must receive the training within their first year of service and shall comply with ongoing training requirements imposed by state law and shall attend training on the Brown Act and Rosenberg’s Rules of Order. Members shall attend training sessions that are offered locally in the immediate vicinity of Santa Clara County, by completing online a state
-app
roved public service ethics education program, or through a state-app
roved training which may be provided at a conference
attended by the member. The City Clerk shall keep ethics training records for five years.
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5.7 Mayor’s Initiative Budget. The Mayor may use the Mayor’s initiative budget established as part of the City Manager’s discretionary fund for projects that the Mayor deems appropriate during the Mayor’s term of office, subject to the requirements of Resolution No. 07 -103 (E
xhibit C).

The amount of the Mayor’s initiative budget is determined by the City Council.

6. Relationship with City Staff

6.1 Incorporation of Municipal Code by Reference. Cupertino Municipal Code Chapter 2.17 (Exhibit D) governs the City Council’s relationship with the City Manager and their staff under the Council-M anager form of government. To the extent that the provisions of Chapter 2.17 are not set below, they are incorporated by reference into this Manual.

6.2 Council/Manager Form of Government. Under the Council/Manager form of government, the City Council sets policy direction as the direct representatives of the community. The City Manager provides professional expertise to manage the organization and carry out the Council’s direction. To enable the City Council to make informed decisions while weighing community input, the City Manager provides staff recommendations and presents options, along with their associated pros and cons. The City Manager is responsible for carrying out the Council’s policy direction through the day
-to-d
ay management of City functions,
including the oversight of City operating departments. Neither individual Councilmembers nor the Council as a whole shall interfere with the City Manager’s performance of the administrative duties conferred upon them in Cupertino Municipal Code section 2.28.040.

6.3 Council-Manager Relations. The City Council and its members shall deal with the administrative services of the City only through the City Manager, except for the purpose of inquiry, and neither the City Council nor any Councilmember shall give orders to any subordinates of the City Manager. The City Manager shall take instructions from the City Council only when given at a duly held meeting of the City Council, and no individual Councilmember shall give any instructions to the City Manager. In the event that any suggestion or comment from an individual Councilmember might be perceived as an instruction by the City Manager or any staff, the City Manager and/or staff should assume positive intent and treat it as a suggestion or comment.

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6.4 Individual Councilmember Influence on Staff Decisions Prohibited. Individual Councilmembers shall not attempt to influence staff decisions, recommendations, workloads, and schedules, and department priorities without prior knowledge and approval of the City Council. If a Councilmember wishes to influence the actions, decisions, recommendations, workloads, work schedules and priorities of staff, that member must prevail upon the City Council to do so as a matter of Council policy.

6.5 Decorum. All Councilmembers and City staff shall treat each other with dignity, courtesy, and respect. In exercising the City Council’s policymaking authority, Councilmembers must often critique, modify, or reject a staff recommendation. While thorough vetting and criticism of staff policy recommendations or decisions is a necessary component of Council’s policymaking role, criticism should focus on the policy recommendations and decisions and should avoid personal attacks.

Councilmembers shall refrain from publicly criticizing the general abilities, character, or motivations of any staff member and should share any such concerns privately with the City Manager or City Attorney.

6.6 Councilmember Access to Information. City Councilmembers have free access to the flow of any information related to the operation of the City. The City Manager shall ensure that such information is communicated by staff in full and with candor to the Council. City staff will make every effort to respond
in a timely and professional manner
to all requests made by individual council members for information or assistance, provided that, in the judgment of the City Manager, the request is not of a magnitude either in terms of workload or policy, which would require that it more appropriately be assigned to staff through the collective direction of the City Council, based on the guidelines set forth in Cupertino Municipal Code section 2.17.043. The City Manager shall place requests that impose a significant workload on staff on the Council agenda for review by the full Council, along with a statement from that Councilmember as to why the information is needed.’ A Councilmember may file a request for information by seeking information through a Public Records Act request to the same extent as any member of the public.

6.7 Authority of City Council. Nothing in this Manual shall limit the City Council’s power to accept, reject, amend, or otherwise guide and direct 14 CC 12-12-2025
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staff actions, decisions, recommendations, workloads and schedules, department priorities, and the conduct of city business through the office of the City Manager. This power cannot be delegated to individual Councilmembers, nor to committees composed of Councilmembers consisting of less than a quorum of the City Council.

7. Agendas and Staff Reports

7.1 Future Agenda Items. The City Manager, the City Attorney, the Mayor, or any two Councilmembers may request that an item be added to a future agenda for Council action . The City Manager shall provide a quarterly report to Council regarding the status of future agenda items, which may include a request to remove items from the list of future agenda items. At the requestor’s discretion, the agenda request may also include additional information explaining the rationale for or timing of the agenda item. Under the “Future Agenda Items” section of each regular Council meeting agenda, the City Manager shall include a document listing all current future agenda requests.

7.2 Preparation of Agenda. The City Clerk shall prepare the agenda in consultation with the City Manager, the Mayor, and the City Attorney.

Absent exigent circumstances, an item will be scheduled for Council action no sooner than 14 days after receipt of a request to add the item to the future agenda items list. Any item requiring preparation of a staff report requires City Manager approval or, in case of a report prepared by City Attorney’s Office staff, City Attorney approval, before being added to an agenda. The Mayor, in consultation with the City Manager and the City Clerk, shall determine the order of items on the agenda.

7.3 Agenda Item Descriptions. Each agenda item shall include a brief general description of the matter to be discussed (approximately 20 words in length), including any action that may be taken under the California Environmental Quality Act, and should generally include the recommendation of the City Manager. If the agenda item includes any budget request or modification, the amount of the request or modification should be stated when possible. The brief description of the agenda item should be comprehensible by a typical resident. For example, an amendment to the Municipal Code should include a description of the amendment, rather than only the Code section to be amended; similarly, an item related to a development project should include not only the street address, but the common name of the project when applicable. Where practicable, the second reading of an 15 CC 12-12-2025
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ordinance should have the same agenda title as the first reading.

7.4 Staff Reports. Staff reports should include the following sections:

1. Subject

2. Recommended Action

3. Executive Summary (optional)

2. Background

3. Reasons for Recommendation and Available Options

4. Sustainability Impact

5. Fiscal Impact

6. City Work Program Item

7. City Work Program Item Description

8. Council Goal

9. California Environmental Quality Act
The “Background” section should include the date, at least the month and the year, previous meetings were held and decisions were made on the item. Where applicable, maps and charts should be provided in the staff report for easy reference.

7.5 Agenda Publication. Agenda packets for a regular meeting should be published and delivered to Councilmembers no later than the Wednesday prior to a Tuesday Council meeting. Councilmembers are encouraged to contact staff in advance for answers to questions regarding an agenda packet. Written communications addressed to Council shall be forwarded to Council and made available to members of the public, consistent with the requirements of the Brown Act.

7.6 Supplemental Materials. Supplemental reports and materials received by the City Clerk after the agenda is published but before 12:00 p.m. on the Monday prior to the City Council meeting shall be published and delivered to Councilmembers at 5:00 p.m. on Monday. Supplemental reports and materials received by the City Clerk after 12:00 p.m. on Monday but before 4:00 p.m. on the day of the meeting shall be published and delivered to Councilmembers prior to the Council meeting. Council questions and staff -p
repared responses will be
included in supplemental materials provided to Council and the public.

7.7 Written Communication. All written communications on an agenda item sent after the meeting agenda is posted shall be included with the Council agenda materials and made available to the public. Any written communications on items not on the agenda shall be included with the Council agenda materials 16 CC 12-12-2025
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and made available to the public if the sender requests that the communication be so included. Written communication received before 4:00 p.m. on the day of a regular City Council meeting will be posted by 5:00 p.m. Written communication received after 4:00 p.m. on the day of the regular City Council meeting will be posted on the business day following the meeting.

8. Meeting Procedures

8.1 Meeting Schedule. The City Council conducts its regular meetings on the first and third Tuesdays of the month, except when Council is in recess. Prior to the second regular meeting in January, the City Council will approve the schedule of meetings for the calendar year, which in addition to the regular meeting schedule may include the cancellation of regular meetings and the addition of special meetings and study sessions. This practice does not, however, preclude the Mayor or a majority of the members of the City Council from calling additional meetings pursuant to the Brown Act. The City Council may by resolution reschedule regular meetings that occur the day after a Monday holiday on Wednesday of the holiday week. When a regular City Council meeting is rescheduled to a Wednesday, the agenda shall be published the prior Wednesday; the meeting shall start at 6:45 p.m. and follow the adopted Order of Business for regular City Council meetings.

8.2 Rules of Order. City Council meetings shall be governed by Rosenberg’s Rules of Order except as otherwise provided by this Manual. Unless otherwise required by state law or City ordinance, decisions of the Council shall be made by a majority of members present and voting.

The Mayor may impose additional reasonable procedural rules not inconsistent with Rosenberg’s Rules of Order and the provisions of this Manual, unless objected to by a majority of Councilmembers present.

8.3 Order of Business. The order of agenda items for regular Council meetings is as follows:

1. Call to Order

2. Pledge of Allegiance

3. Roll Call

4. Closed Session Report

5. Ceremonial Items

6. Postponements and Orders of the Day

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8. Consent Calendar

9. Public Hearings

10. Action Calendar

11. Items Removed from the Consent Calendar

12. City Manager Report

13. Oral Communications (continued)

14. Councilmember Reports

15. Future Agenda Items

16. Adjournment
Oral communications shall be limited to 30 minutes. Additional speakers wishing to comment on non-a
genda items may be given time
to speak at the end of the agenda, after the City Manager’s report.

Councilmember Reports should focus on Council committee assignments and ceremonial appearances and may include other matters serving the constituents of the City.. In the absence of an objection made by a majority of Councilmembers present and voting, the Mayor may modify the order of business to facilitate the fair and efficient conduct of Council meetings. The Mayor shall determine the Order of Business of a special City Council meeting, subject to overruling by any objections sustained by a majority of vote of the City Council.

8.4 Consent Calendar.

8.4.1 Adding Item to Consent Calendar. The Mayor, the City Manager, the City Attorney, or the City Clerk may recommend that items appearing on the agenda be placed on the consent calendar for action by the City Council. All items placed on the consent calendar shall appear together on the agenda with the recommendation as to the action to be taken by the City Council with respect to such item. Upon the motion of any member of the City Council, all items placed upon the consent calendar may be acted upon together, and each shall be deemed to have received the action recommended.

8.4.2 Removing Item from Consent Calendar. Items may be removed from the consent calendar only by a member of the City
Council. To facilitate an efficient meeting, advance notice to the City Manager and the City Clerk by 12:00 p.m. on the day of the City Council meeting or earlier is appreciated. Items removed from the consent calendar shall be placed on the agenda for consideration after the action calendar.
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8.4.3 Questions and Comments regarding Items on the Consent Calendar.

Councilmembers shall be given the opportunity to ask clarifying questions about, or make a brief comment about, an item on the consent calendar without being required to remove the item from the consent calendar.

8.5 Public Comment. An opportunity for public comment shall be provided for the consent calendar, each other agenda item under consideration, and, during regular meetings, on any matter that is within the subject matter jurisdiction of the City Council. The Mayor may consolidate public comment for related agenda items, subject to overruling by a majority vote of the Council. Non
- a
genda matters (including Council
and staff reports) may be addressed by the public during oral communications. Members of the public wishing to speak regarding an item shall submit a request to comment to the Clerk ("blue card") or, where applicable, raise their hand in Zoom within nine minutes of the time the Mayor opens public comment or prior to the close of public comment on the item, whichever is earlier. Each individual speaker will ordinarily have up to three minutes to address the Council. If a speaker representing a group of between two and five members of the public in attendance and wishing to comment on the item but electing not to speak, the speaker may have up to two minutes per group member to speak, up to a total of 10 minutes to address the Council. Consolidation of time among speakers is not otherwise allowed. If a large number of speakers wish to address Council on an item, the Mayor may reduce the time allotted to each speaker consistent with the Brown Act. Twice the speaking time will be provided to any member of the public who uses a translator.

8.6 Communications with Members of the Public. The City Council may ask questions of speakers providing public comment but should avoid an extended discussion with members of the public during meetings.

Additionally, when a member of the public provides comments regarding a matter that is not on the agenda, Councilmembers may (1) refer the speaker to staff; (2) refer the speaker to appropriate reference material; (3) request that staff report back at a future meeting; or (4) request that staff place the item on a future agenda.

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public during Council meetings, although the City Manager or City Attorney may offer to arrange a time to discuss the subject matter of public comments with members of the public subsequent to the Council meeting.

8.7 Conduct of Meetings

8.7.1 Councilmembers. Members of the City Council value and recognize the importance of the trust invested in them by the public to accomplish the business of the City. Councilmembers shall accord courtesy to each other, to City employees, and to members of the public appearing before the City Council. During public meetings, Councilmembers shall not text or otherwise communicate privately with any Public Official, as defined in the City’s Code of Ethics for Conduct for Elected and Appointed Officials, or with members of the public regarding matters relevant to items on the agenda while on the dais.

8.7.2 City Employees. City staff shall observe the same rules of decorum applicable to the City Council. City staff shall act at all times in a businesslike and professional manner
towards Councilmembers and members of the public.

8.7.3 Members of the Public. Members of the public attending City Council meetings are encouraged to treat Councilmembers, City staff, and other members of the public with the same courtesy that Councilmembers and City staff must accord to them. Any members of the public who engages in conduct that disrupts a City Council meeting shall be removed from the meeting.

Nothing in this Manual or any rules of conduct that may be adopted by the City Council shall be construed to prohibit public criticism of the policies, procedures, programs, or services of the City, or of the acts or omissions of the City Council, City advisory bodies, or City staff.

8.8 Discussion and Deliberation

8.8.1 Ex Parte Contacts. Councilmembers shall disclose any ex parte communications prior to deliberation on a quasi
-j
udicial matter.

A quasi
- j
udicial matter is typically a hearing in which the City Council hears evidence and makes findings of fact to reach a conclusion based on the applicable law. An ex parte
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judicial matter communicates directly or indirectly with any person or party in connection with a matter before the Council, without notice and the opportunity for all parties to participate.

8.8.2 Relevance. All discussion must be relevant to the issue before the City Council. A Councilmember is given the floor only for the purpose of discussing the pending matter; discussion which departs from the item agendized for discussion is out of order. Councilmembers should avoid repetition and shall not discuss matters that are not on the agenda. Arguments for or against a measure should be stated as concisely as possible.

8.8.3 Council Questions and Deliberations.

Councilmembers may obtain the floor by seeking
recognition from the Mayor. Following
presentations to Council on an agenda item,
Councilmembers shall each be given five minutes
to ask questions of any presenter. The Mayor may
allow additional time for questions where
appropriate. Following public comment, the
Mayor may request that a motion be made and
seconded. After the motion has been stated to the
Council and seconded, any member of the Council
has a right to discuss the motion after obtaining the
floor. A member who has been recognized shall
limit their time to five minutes. Councilmembers
may yield any unused speaking time during
Councilmember questions or deliberations to
colleagues who have already used their allotted
time. The Mayor may allow additional time for
deliberations where appropriate to encourage
meaningful discussion and exchange of ideas. ’

8.8.4 Opportunity for Equal Participation. It is the policy of the Council to encourage the full, fair participation of all members of the Council in discussions and deliberations. The Mayor may impose reasonable limits on the time any Councilmember is permitted to speak to advance this policy. In addition, all Councilmembers wishing to be recognized should be given an opportunity to speak before any member is allowed to speak a second time.

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its nature, or its consequences, Councilmembers shall avoid attacks on the motives, character, or personality of other Councilmembers, City staff, and members of the public. The Mayor shall rule out of order any Councilmember who engages in such attacks.

8.8.6 Role of the Mayor. The Mayor has the responsibility for controlling and expediting the discussion of an agenda item. It is the duty of the Mayor to keep the subject clearly before the Councilmembers, to rule out irrelevant discussion, and to ensure civil discussion among Councilmembers.

8.9 Meeting Length. Meetings of the City Council shall adjourn by 11:00 p.m. unless the time of adjournment is extended by a vote of a majority of the City Council. Discussion of an agenda item shall not begin after 10:30 p.m. Any motion to extend the meeting beyond 11:00 p.m. shall include a list of specific agenda items to be discussed or approved and shall specify the order these items shall be considered. If a meeting continues past 11:00 p.m., it shall end at 11:30 p.m. All meetings shall be adjourned at 11:30 p.m . unless by a vote of a majority of the City Council suspends this rule and Council votes affirmatively to extend the meeting past 11:30 p.m. Following the adjournment of the meeting, any remaining items on the agenda shall be continued to the next regular meeting of the City Council.

8.10 Public Hearing Procedures. The order of proceeding where there is a public hearing item (non-appe
al items) before the City Council shall
be as follows:

1. Open Public Hearing

2. Staff Report (preferably 10 minutes)

3. Applicant’s presentation (where applicable) (preferably 8 minutes)

4. Questions from the Council

5. Public comment

6. Applicant’s response to public comment (where applicable) (preferably 2 minutes)

7. Close Public Hearing

8. City Council discussion and vote
Where the public hearing involves an appeal of a decision to the City Council, the order of proceeding shall be as follows:
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1. Open Public Hearing

2. Staff Report (preferably 10 minutes)

3. Appellant’s statement (preferably 8 minutes)

4. Applicant’s statement (where applicable) (preferably 8 minutes)

5. Questions from the Council

6. Public comment

7. Applicant’s response to public comment (where applicable) (preferably 2 minutes)

8. Appellant’s response to public comment (preferably 2 minutes)

9. Close Public Hearing

10. City Council discussion and vote

8.11 City Council Recess Period. The City Council recess period shall begin the first Tuesday in August at 12:00 a.m. and end the Tuesday following Labor Day at 12:00 a.m. During any recess period, the City Manager is authorized to take such ministerial actions for matters of operational urgency, including such emergency actions as are necessary for the immediate preservation of the public peace, health, or safety, as would normally be taken by the City Council during the period of recess, except for those duties specifically reserved to the Council by law. This authority extends throughout the period of recess established by the City Council and includes the authority to execute agreements and make expenditures necessary for the exigent operational matters. The City Manager shall make a full and complete report to the City Council at its first regularly scheduled meeting following the period of recess of actions taken by the City Manager pursuant to this section, at which time the City Council may make such findings as may be required to ratify the actions of the City Manager. Nothing in this Section prevents the City Council from calling a special meeting during the recess period.

9. Closed Sessions
A closed session may be held at any regular or special meeting for any purpose authorized by the Brown Act. The City Attorney will schedule closed session meetings in consultation with the Mayor and the City Manager. Public comment shall be received in open session prior to a closed session. To ensure strict compliance with the Brown Act, the City Attorney or the City Attorney’s designee shall report out in public session any reportable action taken during closed session and any other information from closed session authorized to be disclosed based on a majority vote of the City Council. Any documents referenced or presented during closed

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sessions shall be shared with Councilmembers upon request and shared in the same manner as other closed session materials, with appropriate protections for confidentiality.

10. Enforcement of Rules; Suspension of Rules. Nothing in this Manual shall be cited to invalidate a properly noticed and acted upon action of the City Council. Any rule set forth in this Manual may be suspended by three votes of the Council. The City Council may enforce repeated or serious violations of the rules set forth in this Manual through a censure action placed on a Council agenda.

11. Information Memoranda.

11.1 Staff Information Memoranda. Two Councilmembers may request an information memorandum be provided on any matter within the subject matter jurisdiction of the City Council. The City Manager shall place requests that impose a significant workload on staff on the Council agenda for review by the full Council, along with a statement from one or more requesting Councilmembers as to why the information is needed.

11.2 Councilmembers Information Memoranda. Individual Councilmembers may prepare information memoranda for inclusion in their Councilmember Reports. Councilmember memoranda may address any matter within the subject matter jurisdiction of the City Council that the Councilmember wishes to share with their fellow Councilmembers and the public, thereby enhancing transparency and accountability in City operations; provided however, that Councilmember memoranda shall not include confidential or deliberative information or communications or information protected by law from disclosure.

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Open & P ublic VI
A GUIDE TO THE RALPH M. BROWN ACT
REVISED JANUARY 2024
Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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II
OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT

ACKNOWLEDGEMENTS

ACKNOWLEDGMENTS
Cal Cities thanks the following individuals for their work on this publication:

Brown Act Committee
Tracy M. Noonan, Committee Chair
City Attorney, Thousand Oaks
Amy Ackerman
Town Attorney, Corte Madera; Renne Public Law Group
Sheri Damon
City Attorney, Seaside
Christopher Diaz
City Attorney, Colma and Hillsborough
Best Best & Krieger LLP
Megan J. Marevich
Assistant City Attorney, Mountain View
Javan N. Rad
Chief Assistant City Attorney, Pasadena
Prasanna W. Rasiah
City Attorney, San Mateo
Sujata Reuter
Chief Assistant City Attorney, Santa Clara
Robert Schultz
Attorney
Frank A. Splendorio
City Attorney, Atwater and Plymouth
Best Best & Krieger LLP
Osa Wolff
City Attorney, Orinda
Shute, Mihaly & Weinberger LLP
Cal Cities Staff
Sheri Chapman, General Counsel
Alison Leary, Senior Deputy General Counsel
Janet Leonard, Executive Assistant, Legal Services
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1 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT
REVISED JANUARY 2024
Open & P ublic VI
A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS .................................................5 CHAPTER 2: LEGISLATIVE BODIES ............................................................11 CHAPTER 3: MEETINGS ............................................................................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ..............29 CHAPTER 5: CLOSED SESSIONS ...............................................................41 CHAPTER 6: REMEDIES ............................................................................55 27 CC 12-12-2025
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2 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT

TABLE OF CONTENTS

TABLE OF CONTENTS
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ............................................... 5 The right of access ...................................................................................................................6 Broad coverage ........................................................................................................................6 Narrow exemptions .................................................................................................................7 Public participation in meetings ..............................................................................................7 Controversy ..............................................................................................................................8 Beyond the law — good business practices ............................................................................8 Achieving balance ....................................................................................................................9 Historical note ..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES ........................................................... 11 What is a “legislative body” of a local agency? .....................................................................12 What is not a “legislative body” for purposes of the Brown Act? .........................................14 CHAPTER 3: MEETINGS ........................................................................... 17 Brown Act meetings ...............................................................................................................18 Six exceptions to the meeting definition ...............................................................................18 Collective briefings .................................................................................................................21 Retreats, trainings, and workshops of legislative bodies .......................................................21 Serial meetings .......................................................................................................................22 Informal gatherings ................................................................................................................24 Technological conferencing ...................................................................................................25 Location of meetings ..............................................................................................................26 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION .............. 29 Agendas for regular meetings ................................................................................................30 Mailed agenda upon written request .....................................................................................31 Notice requirements for special meetings ............................................................................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings .....................................................................33 Notice of compensation for simultaneous or serial meetings ..............................................33 Educational agency meetings ................................................................................................33 Notice requirements for tax or assessment meetings and hearings ....................................33 28 CC 12-12-2025
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Non-agenda items ..................................................................................................................34 Responding to the public .......................................................................................................35 The right to attend and observe meetings ............................................................................36 Records and recordings .........................................................................................................37 The public’s right to speak during a meeting ........................................................................38 CHAPTER 5: CLOSED SESSIONS .............................................................. 41 Agendas and reports ..............................................................................................................42 Litigation .................................................................................................................................43 Real estate negotiations ........................................................................................................45 Public employment ................................................................................................................46 Labor negotiations .................................................................................................................47 Labor negotiations — school and community college districts ............................................48 Other Education Code exceptions .........................................................................................48 Joint powers authorities .........................................................................................................48 License applicants with criminal records ..............................................................................49 Public security ........................................................................................................................49 Multijurisdictional law enforcement agency .........................................................................49 Hospital peer review and trade secrets .................................................................................49 Other legislative bases for closed session .............................................................................50 Who may attend closed sessions ..........................................................................................50 The confidentiality of closed session discussions .................................................................51 CHAPTER 6: REMEDIES .......................................................................... 55 Invalidation of action taken ....................................................................................................56 Declaratory relief to determine whether past action violated the act ..................................57 Civil action to prevent future violations .................................................................................57 Costs and attorney’s fees ......................................................................................................58 Misdemeanor penalties ..........................................................................................................58 Voluntary resolution ...............................................................................................................59 29 CC 12-12-2025
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5 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT 5 Chapter 1
IT IS THE PEOPLE’S BUSINESS
The right of access .............................................................................................................. 6 Broad coverage ................................................................................................................... 6 Narrow exemptions ............................................................................................................ 7 Public participation in meetings ......................................................................................... 7 Controversy ......................................................................................................................... 8 Beyond the law — good business practices ...................................................................... 8 Achieving balance ............................................................................................................... 9 Historical note ..................................................................................................................... 9 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT 31
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The right of access
Two key parts of the Brown Act have not changed since its adoption in 1953. One is the act’s initial section, declaring the Legislature’s intent:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
1 The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” 2 The Brown Act’s other unchanged provision is a single sentence:
“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”
3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act.

Broad coverage
The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly elected members of a legislative body, even before they take office.

Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body discusses, deliberates, or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference or videoconference.

Chapter 1
IT IS THE PEOPLE’S BUSINESS
PRACTICE TIP: The key to the
Brown Act is a single sentence.

In summary, all meetings shall
be open and public except
when the Brown Act authorizes
otherwise.
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New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Social Media posts, comments, and “likes” can result in a Brown Act violation.

Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions, and some state legislatures have banned the practice. On the other hand, widespread video streaming and videoconferencing of meetings has greatly expanded public access to the decision-making process.

Narrow exemptions
The express purpose of the Brown Act is to ensure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.4
Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself.

The Brown Act, however, is limited to meetings among a majority of the members of multimember government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act.

The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body. 5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents and staff. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw.

Public participation in meetings
In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available.

Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and limits on the time allotted to each speaker. For more information, see chapter 4.

PRACTICE TIP: Think of the
government’s house as being
made of glass. The curtains may
be drawn only to further the
public’s interest. A local policy
on the use of laptop computers,
tablets, and smart phones during
Brown Act meetings may help
avoid problems.
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Controversy
Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception.

News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused.

Some public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately, such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act.

As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and businesslike, but it may be perceived as unresponsive and untrustworthy.

Beyond the law — good business practices
Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling, for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal get- together takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda.

The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.
6 Rather than simply restate the basic
requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited.

A local policy could build on these basic Brown Act goals:
ƒ A legislative body’s need to get its business done smoothly. ƒ The public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time.

PRACTICE TIP: Transparency
is a foundational value for
ethical government practices.

The Brown Act is a floor, not a
ceiling, for conduct.
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ƒ A local agency’s right to confidentially address certain negotiations, personnel matters, claims, and litigation.
ƒ The right of the press to fully understand and communicate public agency decision-making.

A detailed and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law and look at its unique circumstances to determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process.

Achieving balance
The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively.

There must be both adequate notice of what discussion and action are to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents.

The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings.

In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government.

Historical note
In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series titled “Your Secret Government” that ran in May and June 1952.

Out of the series came a decision to push for a new state open-meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill, and Governor Earl Warren signed it into law in 1953.

The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open-meeting laws, such as the Bagley-Keene Act, enacted in 1967 to cover state agencies.

Assembly Member Brown is best known for the open-meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice.

PRACTICE TIP: The Brown Act
should be viewed as a tool
to facilitate the business of
local government agencies.

Local policies that go beyond
the minimum requirements
of law may help instill public
confidence and avoid problems.
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Updates to this publication responding to changes in the Brown Act or new court interpretations are available at https://www.calcities.org/home/resources/open-government2. A current version of the Brown Act may be found at https://leginfor.legislature.ca.gov.

ENDNOTES
1 C al. Gov. Code, § 54950.
2 C al. Const., Art. 1, § 3, subd. (b)(1).
3 C al. Gov. Code, § 54953, subd. (a).
4 Thi s principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Const., Art. 1, § 3, subd. (b)(2). 5 C al. Gov. Code, § 54952.2, subds. (b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533.
6 C al. Gov. Code, § 54953.7.
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Chapter 2

LEGISLATIVE BODIES
What is a “legislative body” of a local agency? ................................................................ 12 What is not a “legislative body” for purposes of the Brown Act? .................................... 14 37 CC 12-12-2025
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CHAPTER 2: LEGISLATIVE BODIES
The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency?
A “legislative body” includes the following:
ƒ The “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This includes city councils, boards of supervisors, school boards, and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision, or other local public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.5 Entities created pursuant to joint powers agreements are also local agencies within the meaning of the Brown Act.
6 ƒ Newly elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings between incumbents and newly elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act.

Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act?
A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies.

If purely a social event, there is no violation, but it would be preferable if others were invited to attend to avoid the appearance of impropriety.

Chapter 2

LEGISLATIVE BODIES
PRACTICE TIP: The prudent
presumption is that an advisory
committee or task force is
subject to the Brown Act. Even
if one clearly is not, it may want
to comply with the Brown Act.

Public meetings may reduce the
possibility of misunderstandings
and controversy.
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ƒ Appointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions, and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act.

Had the two committees remained separate and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act. 8 ƒ Standing committees of a legislative body, irrespective of their composition, which have either (1) a continuing subject matter jurisdiction or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body. 9 Even if it comprises less
than a quorum of the governing body, a standing committee is subject to the Brown Act.

For example, if a governing body creates committees on budget and finance or on public safety that are not limited in duration or scope, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative. 10 “Formal action” by a
legislative body includes authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11 A majority of the members of a legislative body may attend an open and public meeting of a standing committee of that body, provided the members who are not part of the standing committee only observe. 12 For more information, see chapter 3.
ƒ The governing body of any private organization either (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company, or other entity or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.
13 These include some nonprofit corporations created by local agencies.14 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.15 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.
16 PRACTICE TIP: It can be difficult
to determine whether a
subcommittee of a body falls
into the category of a standing
committee or an exempt
temporary committee. Suppose a
committee is created to explore
the renewal of a franchise or a
topic of similarly limited scope
and duration. Is it an exempt
temporary committee or a
nonexempt standing committee?
The answer may depend on
factors such as how meeting
schedules are determined, the
scope of the committee’s charge,
or whether the committee exists
long enough to have “continuing
jurisdiction.”
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Q. The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?
A. Maybe . If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.

Q. If a community college district board creates an auxiliary organization to oper ate a campus bookstore or cafeteria, is the board of the organization a legislative body? A. Y es. But if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. ƒ Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) first leased under Health and Safety Code subsection 32121(p) after Jan. 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.17 What is not a “legislative body” for purposes of the Brown Act? ƒ A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act.18 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.
19 ƒ Groups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.20
Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee?
A. No , because the committee has not been established by formal action of the legislative body.

Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee?
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ƒ Individual decision-makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads is not subject to the Brown Act since such assemblies are not those of a legislative body.21 ƒ Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.
22 ƒ County central committees of political parties are also not Brown Act bodies.23 Legal counsel for a governing body is not a member of the governing body, therefore, the Brown Act does not apply to them. But counsel should take care not to facilitate Brown Act violations by members of the governing body.
24 ENDNOTES
1 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127. 2 C al. Gov. Code, § 54952, subds. (a) and (b).
3 C al. Gov. Code, § 54951; Cal. Health & Saf. Code, § 34173, subd. (g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Cal. Ed. Code § 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules.
4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550.
5 71 O ps.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990). 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.

App.4th 354, 362.
7 C al. Gov. Code, § 54952.1.
8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805. 9 C al. Gov. Code, § 54952, subd. (b)
10 79 O ps.Cal.Atty.Gen. 69 (1996).
11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793. 12 C al. Gov. Code § 54952, subd. (c)(6).
13 C al. Gov. Code, § 54952, subd. (c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996, who, after that date, is made a nonvoting board member by the legislative body. Cal. Gov. Code § 54952, subd. (c)(2).
14 C al. Gov. Code, § 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002).
15 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300 fn. 5.
16 “The Brown Act, Open Meetings for Local Legislative Bodies, ” California Attorney General’s Office (2003), p. 7.
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17 C al. Gov. Code, § 54952, subd. (d).
18 C al. Gov. Code, § 54952, subd. (b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 19 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129. 20 56 O ps.Cal.Atty.Gen. 14, 16-17 (1973).
21 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879. 22 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513. 23 59 O ps.Cal.Atty.Gen. 162, 164 (1976).
24 GFRCO, Inc. v. Superior Court of Riverside County (2023) 89 Cal.App.5th 1295, 1323; Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton (1985) 171 Cal.App.3d 95, 105 (a series of individual telephone calls between the agency attorney and the members of the body constituted a meeting).
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Chapter 3

MEETINGS
Brown Act meetings ......................................................................................................... 18 Six exceptions to the meeting definition .......................................................................... 18 Collective briefings ............................................................................................................ 21 Retreats, trainings, and workshops of legislative bodies ................................................. 21 Serial meetings ................................................................................................................. 22 Informal gatherings ........................................................................................................... 24 Technological conferencing .............................................................................................. 25 Location of meetings ........................................................................................................ 26 43 CC 12-12-2025
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CHAPTER 3: MEETINGS
The Brown Act only applies to meetings of local legislative bodies. It defines a meeting as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1 The term meeting is not limited to gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2
Brown Act meetings
Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings.
ƒ “Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3
ƒ “Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements. 4 ƒ “Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 ƒ “Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.
6 Six exceptions to the meeting definition
The Brown Act creates six exceptions to the meeting definition:7 Individual contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on their own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague.

Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below.

Chapter 3

MEETINGS
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Conferences
The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body.

Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, as long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction.

Community meetings
The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public.
“I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition. “I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?”
T he Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.

Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for reelection and all three participate. All of the candidates are asked their views on a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question?
A. Yes, because the chamber of commerce, not the city, is organizing the debate. The city should not sponsor the event or assign city staff to help organize or run the event. Also, the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates. Finally, incumbents participating in the event should take care to limit their remarks to the program set by the chamber and safeguard due process by indicating they will keep an open mind regarding specific applications that might come before the council.

Q. May the three incumbents accept an invitation from the editorial board of a local paper to all candidates to meet as a group and answer questions about and/or debate city issues?
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Other legislative bodies
The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of (1) another body of the local agency and (2) a legislative body of another local agency.8 Again, the majority cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.

Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony, trying to influence the outcome of proceedings before a subordinate body, or discussing the merits with interested parties.

Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body?
A. No , because the members are attending and participating in an open meeting of another governmental body that the public may attend.

Q. The members then proceed upstairs to the office of their local assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public?
A. Y es, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the assembly member.

Standing committees
The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting, and they must sit where members of the public sit).9 Q. The legislative body establishes a standing committee of two of its five members that meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?
A. She may attend, but only as an observer; she may not participate.

Q. Can the legislative body establish multiple standing committees with partially overlapping jurisdiction?
A. Y es. One result of this overlap in jurisdiction may be that three or more of the members of the legislative body ultimately end up discussing an issue as part of a standing committee meeting. This is allowed under the Brown Act provided each standing committee meeting is publicly noticed and no more than two of the five members discuss the issue at any given standing committee meeting.
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Social or ceremonial events
The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body.

Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attend the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. As long as no such business is discussed, there is no violation of the Brown Act.

Grand Jury Testimony
In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.
10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.”
Collective briefings
None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements. Staff may provide written briefings (e.g., staff updates, emails from the city manager, confidential memos from the city attorney) to the full legislative body, but apart from privileged memos, the written materials may be subject to disclosure as public records as discussed in chapter 4.

Retreats, trainings, and workshops of legislative bodies Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, trainings, or workshops are subject to the requirements of the Brown Act. This is the case whether the gathering focuses on long-range agency planning, discussion of critical local issues, satisfying state-mandated ethics training requirements, or team building and group dynamics.11
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Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No , this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business.

Serial meetings
One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings include only a portion of a legislative body, but eventually they comprise a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”
12 The problem with serial meetings
is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making.

The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member
C, Member C contacts Member D, and so on until a quorum has discussed, deliberated, or taken action on an item within the legislative body’s subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, D, and so on (the spokes) until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes) one by one for discussion, deliberation, or a decision on a proposed action. 13 Another example of a serial meeting
is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed.

Each of these scenarios violates the Brown Act.

A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.” 14 The Brown Act is violated, however, if several one-on-one meetings or conferences lead to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.
16 Such a memo, however, may be a public record.17
The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?”
“Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you, I’d be over the top.”
Moments later , the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses.

How are you voting on it?”
T he lobbyist and the reporter are facilitating a violation of the Brown Act. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking, “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others.

The mayor sat down across from the city manager . “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
Agency employees or officials may have separ ate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”
18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation, or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.”
PRACTICE TIP: When briefing
legislative body members,
staff must exercise care not to
disclose other members’ views
and positions.
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T he planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act.

Q. V arious social media platforms and websites include forums where agency employees and officials can discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act?
A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business.

Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No , the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting.

Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply all” option that may inadvertently result in a Brown Act violation. Staff should consider using the “bcc” (blind carbon copy) option when addressing an email to multiple members of the legislative body and remind recipients not to “reply all.” Social media should also be used with care. A member of the legislative body cannot respond directly to any communication on an internet-based social media platform that is made, posted, or shared by any other member of the legislative body. This applies to matters within the subject matter jurisdiction of the legislative body. For example, if one member of a legislative body “likes” a social media post of one other member of the same body, that could violate the Brown Act, depending on the nature of the post
.19
Finally, electronic communications (such as text messaging) among members of a legislative body during a public meeting should be discouraged. If such communications are sent to a majority of members of the body, either directly or through an intermediary, on a matter on the meeting agenda, that could violate the Brown Act. Electronic communications sent to less than a majority of members of the body during a quasi-judicial proceeding could potentially raise due process concerns, even if not per se prohibited by the Brown Act. Additionally, some legislative bodies have rules governing electronic communications during meetings of the legislative body and how their members should proceed if they receive a communication on an agenda item that is not part of the record or not part of an agenda packet.

Informal gatherings
Members of legislative bodies are often tempted to mix business with pleasure — for example, by holding a post-meeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.20 A gathering at which a quorum of the legislative body discusses matters within their jurisdiction violates the Brown Act even if that gathering occurs in a public place. The Brown Act is not satisfied by public visibility alone. It also requires public notice and an opportunity to attend, hear, and participate.
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Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board.

A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence does not lessen the potential for a violation of the Brown Act.

Technological conferencing
Except for certain non-substantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But in an effort to keep up with modern technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.
21 While the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference.

Teleconference is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.”22 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable.

The Brown Act contains the following teleconferencing requirements:23 ƒ Teleconferencing may be used for all purposes during any meeting. ƒ At least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction.
ƒ Additional teleconference locations may be made available for the public. ƒ Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable. ƒ Agendas must be posted at each teleconference location, even if a hotel room or a residence. ƒ Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate ƒ The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location.
ƒ All votes must be by roll call.

Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C., to New York. May she? A. She may not participate or vote because she is not in an open, noticed, and posted teleconference location.

Until Jan. 1, 2026, teleconferencing may also be used on a limited basis where a member indicates their need to participate remotely for “just cause” (e.g., childcare or a contagious illness) or due to “emergency circumstances” (e.g., a physical or family medical emergency).

This teleconferencing option has extremely detailed requirements, and careful review is needed. If the City experiences a technical issue that prevents members of the public from viewing the meeting and/or offering comments virtually, then no further action can be taken until the technical issue is resolved.
24 The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail.

Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted.

Location of meetings
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.
25 An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:26
ƒ Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party. ƒ Inspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property.

Q. The agency is considering approving a major retail mall. The developer has built other similar malls and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go?
A. Y es, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend. ƒ Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice.
ƒ Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction.
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ƒ Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction. ƒ Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility.
ƒ Visit the office of its legal counsel for a closed session on pending litigation when to do so would reduce legal fees or costs.
27 In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.
28 A school board may also interview members of the public residing in another district if the board is considering employing that district’s superintendent.

Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.29
Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.
30 State law has also allowed for virtual meetings under certain emergency situations.31

ENDNOTES
1 C al. Gov. Code, § 54952.2, subd. (a).
2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870. 3 C al. Gov. Code, § 54954, subd. (a).
4 C al. Gov. Code, § 54956.
5 C al. Gov. Code, § 54956.5.
6 C al. Gov. Code, § 54955.
7 C al. Gov. Code, § 54952.2, subd. (c).
8 C al. Gov. Code, § 54952.2, subd. (c)(4).
9 C al. Gov. Code, § 54952.2, subd. (c)(6). See 81 Ops.Cal.Atty.Gen. 156 (1998). 10 C al. Gov. Code, § 54953.1.
11 “The Brown Act, ” California Attorney General (2003), p. 10. 12 C al. Gov. Code, § 54952.2, subd. (b)(1).
13 Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton (1985) 171 Cal.App.3d 95. 14 C al. Gov. Code, § 54952.2, subd. (b)(2).
15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518.
16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363.
17 C al. Gov. Code, § 54957.5, subd. (a).
18 C al. Gov. Code, § 54952.2, subd. (b)(2).
19 C al. Gov. Code, § 54952.2, subd. (b)(3).
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20 C al. Gov. Code, § 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964). 21 C al. Gov. Code, § 54953, subd. (b)(1).
22 C al. Gov. Code, § 54953, subd. (b)(4).
23 C al. Gov. Code, § 54953. Until Jan. 1, 2024, the legislative body could use teleconferencing “during a proclaimed state of emergency” by the Governor in specified circumstances, and teleconference locations were exempt from certain requirements, such as identification in and posting of the agenda. 24 C al Gov. Code, § 54953, subd. (f) (which will become Govt. §54953(e) as of Jan. 1, 2024). 25 C al. Gov. Code, § 54954, subd. (b).
26 C al. Gov. Code, § 54954, subd. (b)(1)-(7).
27 94 O ps.Cal.Atty.Gen. 15 (2011).
28 C al. Gov. Code, § 54954, subd. (c).
29 C al. Gov. Code, § 54954, subd. (d).
30 C al. Gov. Code, § 54954, subd. (e).
31 C al. Gov. Code, § 54953, subd. (e) (exp. January 1, 2026). 54 CC 12-12-2025
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Chapter 4

AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Agendas for regular meetings .......................................................................................... 30 Mailed agenda upon written request ............................................................................... 31 Notice requirements for special meetings ....................................................................... 32 Notices and agendas for adjourned and continued meetings and hearings ................... 32 Notice requirements for emergency meetings ................................................................ 33 Notice of compensation for simultaneous or serial meetings ......................................... 33 Educational agency meetings ........................................................................................... 33 Notice requirements for tax or assessment meetings and hearings ............................... 33 Non-agenda items ............................................................................................................. 34 Responding to the public .................................................................................................. 35 The right to attend and observe meetings ....................................................................... 36 Records and recordings .................................................................................................... 37 The public’s right to speak during a meeting ................................................................... 38 55 CC 12-12-2025
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Chapter 4

AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Effective notice is essential for an open and public meeting.

Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting.

Agendas for regular meetings
Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed.

The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location open and accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend. 2 This provision may be satisfied
by posting on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.
3 While posting an agenda on an agency’s internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if (1) the local agency has a website and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body or (b) has members that are compensated, with one or more members that are also members of a governing body.
4 Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting?
A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.
5 Should website technical
difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties that cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.
6 This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means. 7 The Attorney General’s
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awar eness, among other factors. 8 For these reasons, obvious website technical difficulties might not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved.

The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”
9 For a discussion of descriptions for open and closed-session agenda items, see chapter 5. Special care should be made to describe on the agenda each distinct action to be taken by the legislative body, while an overbroad description of a “project” must be avoided if the “project” is actually a set of distinct actions, in which case each action must be listed separately on the agenda.10 For example, the listing of an "initiative measure” alone on an agenda was found insufficient where the agency was also deciding whether to accept a gift from the measure proponent to pay for the election. 11 Q. The agenda for a regular meeting contains the following items of business:
• Consider ation of a report regarding traffic on Eighth Street. • Consider ation of a contract with ABC Consulting.

Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read, “Consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”
Q. The agenda includes an item entitled City Manager’ s Report, during which time the city manager provides a brief report on notable topics of interest, none of which is listed on the agenda.

Is this permissible?
A. Y es, as long as it does not result in extended discussion or action by the body.

A brief general description may not be sufficient for closed-session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions.12 Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges.

Mailed agenda upon written request
The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted or upon distribution to all, or a majority of all, of the members of the legislative body, whichever occurs first. If the local agency has an internet website, this requirement can be satisfied by emailing a copy of, or website link to, the agenda or agenda packet if the person making the request asks for it to be emailed. Further, if requested, these materials must be made available in appropriate alternative formats to persons with disabilities.

PRACTICE TIP: Putting together a
meeting agenda requires careful
thought.
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A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.13
Notice requirements for special meetings
There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation and each radio and television station that has requested such notice in writing. This notice must be delivered at least 24 hours before the time of the meeting by personal delivery or any other means that ensures receipt.

The notice must state the time and place of the meeting as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda, that is, with a brief general description. Some items must appear on a regular, not special, meeting agenda (e.g., general law city adoption of an ordinance or consideration of local agency executive compensation). 14 As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.

The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: at a site that is freely accessible to the public, and on the agency’s website if (1) the local agency has a website and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body or (b) has members that are compensated, with one or more members that are also members of a governing body.
15 Notices and agendas for adjourned and continued meetings and hearings A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.
16 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting.

If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced.17 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.

A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting. 18 58
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Notice requirements for emergency meetings
The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.19 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken.

News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy.

Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body.20 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging.

Educational agency meetings
The Education Code contains some special agenda and special meeting provisions.21 However, they are generally consistent with the Brown Act. An item is probably void if not posted.
22 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and can address the board on those items.
23 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.24 Although written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments, as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication.

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mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice.

The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.25 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.

Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.

However, there are three specific situations in which a legislative body can act on an item not on the agenda:
26 ƒ When a majority decides there is an “emergency situation” (as defined for emergency meetings).
ƒ When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action, and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline. ƒ When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.

The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
“I’d like a two-thirds vote of the board so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?”
T he desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident.

The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.
“We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go-ahead tonight, even though it’s not on the agenda.”
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:

PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
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ƒ First, make two determinations: (1) that there is an immediate need to take action
and (2) that the need arose after the posting of the agenda. The matter is then
placed on the agenda.
ƒ Second, discuss and act on the added agenda item.

Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?
While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on their own activities. 27 However, caution should be
used to avoid any discussion or action on such items.

Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street.

Are there problems with this project?
City Manager Frank: The public works director has prepared a 45-minute PowerPoint presentation for you on the status of this project and will give it right now.

Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy.

It is clear from this dialogue that the Elm Str eet project was not on the council’s agenda but was raised during the public comment period for items not on the agenda. Council Member Jefferson properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting. Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. 61 CC 12-12-2025
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The right to attend and observe meetings
A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings.

Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting.

Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.28 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.
29 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.30 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location. 31 Action by secret ballot, whether preliminary or final, is flatly prohibited.32 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.33 Q. The agenda calls for election of the legislative body’ s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A. No . The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot.

The legislative body may remove persons from a meeting who willfully interrupt or disrupt proceedings.
34 Ejection is justified only when audience members actually disrupt the proceedings,35 or, alternatively, if the presiding member of the legislative body warns a person that their behavior is disruptive and that continued disruption may result in their removal (but no prior warning is required if there is a use of force or true threat of force). 36 If order cannot be restored after
ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to readmit an individual or individuals not responsible for the disturbance.
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Records and recordings
The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.38 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.39 Q. In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A. No . The memorandum is a privileged attorney-client communication.

Q. In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public?
A. Y es. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication.

A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A nonexempt or otherwise non-privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose, and the agendas for all meetings of the legislative body must include the address of this office or location.40 The location designated for public inspection must be open to the public, not a locked or closed office. Alternatively, the documents can be posted on the city's website for public review if statutory requirements are met.41
A writing distributed during a meeting must be made public:
ƒ At the meeting if prepared by the local agency or a member of its legislative body. ƒ After the meeting if prepared by some other person.42 This requirement does not prevent assessing a fee or deposit for providing a copy of a public record pursuant to the California Public Records Act except where required to accommodate persons with disabilities.43
Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.
44 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.45
In addition, the public is specifically allowed to use audio or videotape recorders or still or motion picture cameras at a meeting to record meetings of legislative bodies, absent a reasonable finding by the body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.46
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Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.47
The public’s right to speak during a meeting
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, as long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.48
Q. Must the legislative body allow members of the public to show videos or make a PowerPoint presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably , although the agency is under no obligation to provide equipment.

Moreover, the Brown Act, as well as case law, prevents legislative bodies from prohibiting public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself.49 However, this prohibition does not provide immunity for defamatory statements.50
Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments?
A. No , as long as the criticism pertains to job performance.

Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech?
A. T here is no case law on this subject. Some would argue that purely campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph (c) of that section where relevant to the governing of the agency and an implicit criticism of the incumbents’ performance of city business.

The legislative body may adopt reasonable regulations, including a limit on the total time permitted for public comment and a limit on the time permitted per speaker.51 Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.52
The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a regular (but not special) public meeting if all interested members of the public had the opportunity to PRACTICE TIP: Public speakers
cannot be compelled to give
their name or address as a
condition of speaking. The clerk
or presiding officer may request
speakers to complete a speaker
card or identify themselves for
the record but must respect a
speaker’s desire for anonymity.
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speak on the item before or during its consideration, and if the item has not been substantially changed.53
Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body. 54 ENDNOTES
1 C al. Gov. Code, § 54954.2, subd. (a)(1).
2 78 O ps.Cal.Atty.Gen. 327 (1995).
3 88 O ps.Cal.Atty.Gen. 218 (2005).
4 C al. Gov. Code, §§ 54954.2, subd. (a)(1) and 54954.2, subd. (d). 5 C al. Gov. Code, § 54960.1, subd. (d)(1).
6 99 O ps.Cal.Atty.Gen. 11 (2016).
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432.
8 99 O ps.Cal.Atty.Gen. 11 (2016).
9 C al. Gov. Code, § 54954.2, subd. (a)(1).
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of California Environmental Quality Act [CEQA] action [mitigated negative declaration] without specifically listing it on the agenda violates the Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis). See also GI Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814 (depublished) (Brown Act requires CEQA finding of exemption to be listed on agenda items that are projects under CEQA). 11 Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194. 12 C al. Gov. Code, § 54954.5.
13 C al. Gov. Code, § 54954.1.
14 C al. Gov. Code, §§ 36934; 54956, subd. (b).
15 C al. Gov. Code, § 54956, subds. (a) and (c).
16 C al. Gov. Code, § 54955.
17 C al. Gov. Code, § 54954.2, subd. (b)(3).
18 C al. Gov. Code, § 54955.1.
19 C al. Gov. Code, § 54956.5.
20 C al. Gov. Code, § 54952.3.
21 C al. Edu. Code, §§ 35144, 35145, and 72129.
22 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196. 23 C al. Edu. Code, § 35145.5
24 C al. Edu. Code, § 54954.6
25 S ee Cal. Const. Art. XIIIC, XIIID; Cal. Gov. Code, § 54954.6, subd. (h). 26 C al. Gov. Code, § 54954.2, subd. (b).
27 C al. Gov. Code, § 54954.2, subd. (a)(2); Cruz v. City of Culver City (2016) 2 Cal.App.5th 239 (six- minute colloquy on non-agenda item with staff answering questions and advising that matter could be placed on future agenda fell within exceptions to discussing or acting upon non-agenda items). 65 CC 12-12-2025
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28 C al. Gov. Code, § 54953.3.
29 C al. Gov. Code, § 54961, subd. (a); Cal. Gov. Code, § 11135, subd. (a). 30 C al. Gov. Code, § 54952.2, subd. (c)(2).
31 C al. Gov. Code, § 54953, subd. (b).
32 C al. Gov. Code, § 54953, subd. (c).
33 C al. Gov. Code, § 54953, subd. (c)(2).
34 C al. Gov. Code, §§ 54957.9, 54957.95.
35 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F .3d 966 (silent and momentary Nazi salute directed toward mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F .3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption); but see Kirkland v. Luken (S.D. Ohio 2008) 536 F .Supp.2d 857 (finding no First Amendment violation by mayor for turning off microphone and removing speaker who used foul and inflammatory language that was deemed as "likely to incite the members of the audience during the meeting, cause disorder, and disrupt the meeting”).
36 C al. Gov. Code, § 54957.95.
37 C al. Gov. Code, § 54957.9.
38 C al. Gov. Code, § 54957.5.
39 C al. Gov. Code, § 54957.5, subd. (d).
40 C al. Gov. Code, § 54957.5(b); see also Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1. 41 C al. Gov. Code § 54957.5.
42 C al. Gov. Code, § 54957.5, subd. (c).
43 C al. Gov. Code, § 54957.5, subd. (d).
44 C al. Gov. Code, § 54953.5, subd. (b).
45 C al. Gov. Code, § 54957.5, subd. (d).
46 C al. Gov. Code, § 54953.5, subd. (a).
47 C al. Gov. Code, § 54953.6.
48 C al. Gov. Code, § 54954.3, subd. (a).
49 C al. Gov. Code, § 54954.3, subd. (c); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F .3d 800. 50 C al. Gov. Code, § 54954.3, subd. (c).
51 Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150 (public comment time limit of three minutes for each speaker did not violate First Amendment).
52 C al. Gov. Code, § 54954.3. subd. (b); Chaffee v. San Francisco Public Library Commission (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992).
53 C al. Gov. Code, § 54954.3, subd. (a); Preven v. City of Los Angeles (2019) 32 Cal.App.5th 925. 54 C al. Gov. Code, § 54954.3, subd. (a).
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Chapter 5

CLOSED SESSIONS
Agendas and reports ......................................................................................................... 42 Litigation ............................................................................................................................ 43 Real estate negotiations ................................................................................................... 45 Public employment ........................................................................................................... 46 Labor negotiations ............................................................................................................ 47 Labor negotiations — school and community college districts ....................................... 48 Other Education Code exceptions .................................................................................... 48 Joint powers authorities ................................................................................................... 48 License applicants with criminal records ......................................................................... 49 Public security ................................................................................................................... 49 Multijurisdictional law enforcement agency .................................................................... 49 Hospital peer review and trade secrets ........................................................................... 49 Other legislative bases for closed session ....................................................................... 50 Who may attend closed sessions ..................................................................................... 50 The confidentiality of closed session discussions ............................................................ 51 67 CC 12-12-2025
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A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1
As summarized in chapter 1 of this guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.
2 The most common purposes of the closed
session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees).

Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. However, there is no prohibition in putting overlapping exceptions on an agenda in order to provide an opportunity for more robust closed session discussions. As an example, a city council cannot give direction to the city manager about a property negotiation during a performance evaluation exception. However, if both real property negotiation and performance evaluation exceptions are on the agenda, those discussions might be conducted.

Similarly, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.
3 In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions applies to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the Brown Act does not authorize closed sessions for other contract negotiations.

Agendas and reports
Closed session items must be briefly described on the posted agenda, and the description must state the specific statutory exemption.5 An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly put on the agenda as a Chapter 5

CLOSED SESSIONS
PRACTICE TIP: Some problems
over closed sessions arise
because secrecy itself breeds
distrust. The Brown Act does
not require closed sessions and
legislative bodies may do well
to resist the tendency to call a
closed session simply because
it may be permitted. A better
practice is to go into closed
session only when necessary.
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closed session item or unless it is properly added as a closed-session item by a two-thirds vote of the body after making the appropriate urgency findings.6 The Brown Act supplies a series of fill-in-the-blank sample agenda descriptions for various types of authorized closed sessions that provide a “safe harbor” from legal attacks. These sample agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multijurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.
7 If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda, and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8 The legislative body must take public comment on the closed session item before convening in a closed session.

Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report vary according to the reason for the closed session and the action taken.9 The announcements may be made at the site of the closed session, as long as the public is allowed to be present to hear them.

If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.
10 The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.
11 If one is kept, it must be made available
to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest. 12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation.

Litigation
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation.13 The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. Essentially, a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator. 16 PRACTICE TIP: Pay close
attention to closed session
agenda descriptions. Using
the wrong label can lead
to invalidation of an action
taken in closed session if not
substantially compliant.
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The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly.

Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation
Q. May the legislative body agree to settle a lawsuit in a properly noticed closed session without placing the settlement agreement on an open session agenda for public approval? A. Y es, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings.19
Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.
20 Anticipated exposure to litigation against the
local agency
Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.21 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff. If an agency receives a documented threat of litigation, and intends to discuss that matter in closed session, the record of a litigation threat must be included in the body’s agenda packet.
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Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation.

Certain actions must be reported in open session at the same meeting following the closed session.

Other actions, such as when final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.23 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances.

Real estate negotiations
A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.24 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues, such as site design, architecture, or other aspects of the project for which the transaction is contemplated.25
Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session?
A. No . However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase.

The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern,
26 and the names of the parties with whom its negotiator may negotiate.27 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person as soon as the agency is informed of it. 28 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson.
“Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.”
“Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” 71 CC 12-12-2025
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A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting.

Public employment
The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”
29 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies. 30 The body must possess
the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.31 That authority may be delegated to a subsidiary appointed body.32 An employee must be given at least 24 hours’ notice of any closed session convened to hear specific complaints or charges against them. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,33 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.34 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.
35 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.36
However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.37 Q. Must 24 hours’ notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses.

Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.38 An incorrect agenda description can result in invalidation of an action and much embarrassment.

For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager, or superintendent. Examples of the latter include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer.

PRACTICE TIP: Discussions of
who to appoint to an advisory
body and whether or not to
censure a fellow member of the
legislative body must be held in
the open.
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Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.39 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.

The personnel exception specifically prohibits discussion or action on proposed compensation in closed session except for a disciplinary reduction in pay. That means, among other things, there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions.

Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session.

Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position. 40 However, a report on a dismissal or
non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.
41 “I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager effective immediately.

The council has met in closed session, and we’ve negotiated six months’ severance pay.”
“Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.”
T his may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session.

Caution must be exercised not to discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice.

Labor negotiations
The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts.

A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,
42 on employee salaries and fringe benefits for both represented (“union”) and unrepresented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.
43 PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
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These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives.

During its discussions with representatives on salaries and fringe benefits, the legislative body may discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations.44 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.45 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.

Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions.

Four types of meetings are exempted from compliance with the Rodda Act:

1. A negotiating session with a recognized or certified employee organization.

2. A meeting of a mediator with either side.

3. A hearing or meeting held by a fact finder or arbitrator.

4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.46 Public participation under the Rodda Act also takes another form.47 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.48 The final vote must be in public.

Other Education Code exceptions
The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.
49 Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.50 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.51
PRACTICE TIP: Prior to the closed
session, the legislative body
must hold an open and public
session in which it identifies its
designated representatives.

PRACTICE TIP: Attendance by the
entire legislative body before a
grand jury would not constitute
a closed session meeting under
the Brown Act.
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Joint powers authorities
The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.52 License applicants with criminal records
A closed session is permitted when an applicant who has a criminal record applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw it, the body must deny the license in public, either immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.53
Public security
Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings; essential public services, including water, sewer, gas, or electric service; or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials, including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.
54 Action taken in closed session with respect to such public security issues is not reportable action.

Multijurisdictional law enforcement agency
A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an ongoing criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.55 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.56 Hospital peer review and trade secrets
Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals under other provisions of law:57

1. A meeting to hear reports of hospital medical audit or quality assur ance committees or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing.

2. A meeting to discuss “reports involving trade secrets” — provided no action is taken. 75 CC 12-12-2025
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A “trade secret” is defined as information that is not generally known to the public or competitors and that (1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; (2) is necessary to initiate a new hospital service or program or facility; and (3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit.

The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.58 Other legislative bases for closed session
Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to review the Brown Act carefully to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including a response to a confidential final draft audit report from the Bureau of State Audits,
59 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,60 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi- Cal services,
61 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,
62 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.63 Who may attend closed sessions
Meetings of a legislative body are either fully open or fully closed; there is nothing in between.

Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official or essential role in the closed session subject matters must be excluded from closed sessions.65
Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors.

PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”64
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The confidentiality of closed session discussions
The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.66 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process. 67 Only the legislative body acting as a body may agree to divulge confidential closed session information. With regard to attorney-client privileged communications, the entire body is the holder of the privilege, and only the entire body can decide to waive the privilege. 68 Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information regarding pending litigation that was received during a closed session,
69 though the Attorney General has also
concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.
70 In any event, in 2002, the Brown Act was amended to
prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief and, if the breach is a willful disclosure of confidential information, disciplinary action against an employee and referral of a member of the legislative body to the grand jury. 71 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure (1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; (2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or (3) is information that is not confidential. 72 The interplay between these possible sanctions and an official’s First Amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy.
“I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang.
“Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” T he first comment to the press may be appropriate if it is a part of an action taken by the city council in closed session that must be reported publicly.73 The second comment to the property owner is not. Disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency.

PRACTICE TIP: There is a strong
interest in protecting the
confidentiality of proper and
lawful closed sessions.
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ENDNOTES
1 C al. Gov. Code, § 54962.
2 C al. Const. , Art. 1, § 3.
3 61 O ps.Cal.Atty.Gen. 220 (1978); but see Cal. Gov. Code, § 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations and other related matters).
4 C al. Gov. Code, § 54957.1.
5 C al. Gov. Code, § 54954.5.
6 C al. Gov. Code, § 54954.2.
7 C al. Gov. Code, § 54954.5.
8 C al. Gov. Code, §§ 54956.9, 54957.7.
9 C al. Gov. Code, § 54957.1, subd. (a).
10 C al. Gov. Code, § 54957.1, subd. (b).
11 C al. Gov. Code, § 54957.2.
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal. Code Regs. § 18707. 13 B ut see Roberts v. City of Palmdale (1993) 5 Cal.4th 363 (protection of the attorney-client privilege alone cannot by itself be the reason for a closed session). 14 C al. Gov. Code, § 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 O ps.Cal.Atty.Gen. 29 (1999).
16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471. 17 “The Brown Act, ” California Attorney General (2003), p. 40. 18 C al. Gov. Code, § 54956.9, subd. (g).
19 S ee e.g., Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785; Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172. 20 Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172. 21 C al. Gov. Code, § 54956.9, subd. (e).
22 F owler v. City of Lafayette (2020) 46 Cal.App.5th 360. 23 C al. Gov. Code, § 54957.1.
24 C al. Gov. Code, § 54956.8.
25 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904. See also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner, and timing of consideration and other items that cannot be disclosed without revealing price and terms).
26 73 O ps.Cal.Atty.Gen. 1 (1990).
27 C al. Gov. Code, §§ 54956.8, 54954.5, subd. (b).
28 C al. Gov. Code, § 54957.1, subd. (a)(1).
29 C al. Gov. Code, § 54957, subd. (b).
30 63 O ps.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 78 CC 12-12-2025
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31 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002).
32 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty.Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 33 C al. Gov. Code, § 54957, subd. (b)(3).
34 88 O ps.Cal.Atty.Gen. 16 (2005).
35 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860. 36 C al. Gov. Code, § 54957, subd. (b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges when there was a public evidentiary hearing prior to closed session). 37 78 O ps.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87.
38 Moreno v. City of King (2005) 127 Cal.App.4th 17.
39 C al. Gov. Code, § 54957.
40 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165. 41 C al. Gov. Code, § 54957.1, subd. (a)(5).
42 C al. Gov. Code, § 54957.6.
43 C al. Gov. Code, § 54957.6, subd. (b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district).
44 C al. Gov. Code, § 54957.6; 51 Ops.Cal.Atty.Gen. 201 (1968). 45 C al. Gov. Code, § 54957.1, subd. (a)(6).
46 C al. Gov. Code, § 3549.1.
47 C al. Gov. Code, § 3540.
48 C al. Gov. Code, § 3547.
49 C al. Edu. Code, § 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings).
50 C al. Edu. Code, § 72122.
51 C al. Edu. Code, § 60617.
52 C al. Gov. Code, § 54956.96.
53 C al. Gov. Code, § 54956.7.
54 C al. Gov. Code, § 54957.
55 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.

App.4th 354.
56 C al. Gov. Code, § 54957.8.
57 C al. Gov. Code, § 54962.
58 C al. Health and Saf. Code, § 32106.
59 C al. Gov. Code, § 54956.75.
60 C al. Gov. Code, § 54956.81.
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61 C al. Gov. Code, § 54956.86.
62 C al. Gov. Code, § 54956.87.
63 C al. Gov. Code, § 54956.95.
64 O ps.Cal.Atty.Gen. 34 (1965)
65 82 O ps.Cal.Atty.Gen. 29 (1999); 2022 WL 1814322, 105 Ops. Cal.Atty.Gen. 89 (2022). 66 C al. Gov. Code, § 54963.
67 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327. See also Cal. Gov. Code, § 54963. 68 Roberts v. City of Palmdale (1993) 5 Cal.4th 363.
69 80 O ps.Cal.Atty.Gen. 231 (1997).
70 76 O ps.Cal.Atty.Gen. 289 (1993).
71 C al. Gov. Code, § 54963.
72 C al. Gov. Code, § 54963.
73 C al. Gov. Code, § 54957.1.
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Chapter 6

REMEDIES
Invalidation of action taken .............................................................................................. 56 Declaratory relief to determine whether past action violated the act ............................. 57 Civil action to prevent future violations ............................................................................ 57 Costs and attorney’s fees ................................................................................................. 58 Misdemeanor penalties .................................................................................................... 58 Voluntary resolution .......................................................................................................... 59 81 CC 12-12-2025
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A violation of the Brown Act can lead to invalidation of the agency’s action, payment of a challenger’s attorney fees, public embarrassment, and even criminal prosecution. As explained below, a legislative body often has an opportunity to correct a violation prior to the filing of a lawsuit. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials.

This chapter discusses the remedies available to the public when that self-regulation is ineffective.

Invalidation of action taken
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the grounds that they violate the Brown Act.1 The following actions cannot be invalidated:
ƒ Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites the wrong Brown Act section but adequately advises the public that the legislative body will meet with legal counsel to discuss potential litigation in closed session.
2 ƒ Those involving the sale or issuance of notes, bonds, or other indebtedness, or any related contracts or agreements.3
ƒ Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment.
4 ƒ Those connected with the collection of any tax.5
ƒ Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken.6
Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation, or within 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that a legislative body may act only on items posted on the agenda.7 The legislative body then has up to 30 days to cure and correct its action.8 The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and, if so, consider correcting the action to avoid the costs of litigation. If the legislative body does not act, any lawsuit must be filed within the next 15 days.9
Chapter 6

REMEDIES
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Although just about anyone has standing to bring an action for invalidation,10 the challenger must show prejudice as a result of the alleged violation.11 An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.12 Declaratory relief to determine whether past action violated the act Any interested person, including the district attorney, may file a civil action to determine whether a past action of a legislative body constitutes a violation of the Brown Act and is subject to a mandamus, injunction, or declaratory relief action.13 Before filing an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body clearly describing the past action and the nature of the alleged violation.
14 The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.15 If the body fails to take any action within the 30-day period or takes an action other than an unconditional commitment, the interested person has 60 days to file an action.16
The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.17 The unconditional commitment must be substantially in the form set forth in the Brown Act.18 No legal action may thereafter be commenced regarding the past action.19 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act, and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.20
The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.
21 Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to do the following:
ƒ Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body.
ƒ Determine the applicability of the Brown Act to actions or threatened future action of the legislative body.
ƒ Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law.
ƒ Compel the legislative body to audio-record its closed sessions.22 PRACTICE TIP: A lawsuit to
invalidate must be preceded by
a demand to cure and correct
the challenged action in order
to give the legislative body
an opportunity to consider its
options. The Brown Act does not
specify how to cure or correct
a violation; the best method
is to rescind the action being
complained of and start over, or
reaffirm the action if the local
agency relied on the action and
rescinding the action would
prejudice the local agency.
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It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future when the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.23 A court may not compel elected officials to disclose their recollections of what transpired in a closed session.24 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to audio record its future closed sessions. 25 In a subsequent lawsuit to enforce the
Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the audio recording if it finds there is good cause to think the Brown Act has been violated and make public a certified transcript of the relevant portion of the closed session recording.26 Costs and attorney’s fees
A plaintiff who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.
27 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Brown Act is proven.

An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit. 28 Misdemeanor penalties
A violation of the Brown Act is a misdemeanor if (1) a member of the legislative body attends a meeting where action is taken in violation of the Brown Act, and (2) the member intends to deprive the public of information that the member knows or has reason to know the public is entitled to.29 “Action taken” is not only an actual vote but also a collective decision, commitment, or promise by a majority of the legislative body to make a positive or negative decision.30 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty.

A violation occurs for a tentative as well as final decision.31 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all.

As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law.

Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.32 There is no case law to support this view.

If anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.
33 PRACTICE TIP: Attorney’s fees
will likely be awarded if a
violation of the Brown Act is
proven.
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Voluntary resolution
Successful enforcement actions for violations of the Brown Act can be costly to local agencies. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body and its members. It is in the agency’s interest to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were
satisfied.

Overall, agencies that regularly train their officials and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement.

ENDNOTES
1 C al. Gov. Code, § 54960.1. Invalidation is limited to actions that violate the following sections of the Brown Act: section 54953 (the basic open meeting provision), sections 54954.2 and 54954.5 (notice and agenda requirements for regular meetings and closed sessions), 54954.6 (tax hearings), 54956 (special meetings), and 54596.5 (emergency situations). Violations of sections not listed above cannot give rise to invalidation actions, but they are subject to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1198. 3 C al. Gov. Code, § 54960.1(d)(2).
4 C al. Gov. Code, § 54960.1(d)(3).
5 C al. Gov. Code, § 54960.1(d)(4).
6 C al. Gov. Code, § 54960.1(d)(5).
7 C al. Gov. Code, § 54960.1, subds. (b), (c)(1).
8 C al. Gov. Code, § 54960.1, subd. (c)(2).
9 C al. Gov. Code, § 54960.1, subd. (c)(4).
10 McKee v. Orange Unified School District (2003) 110 Cal.App.4th 1310, 1318-1319. 11 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561. 12 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118. 13 C al. Gov. Code, § 54960.2, subd. (a); Senate Bill No. 1003, Section 4 (2011-2012 Session). 14 C al. Gov. Code, § 54960.2, subds. (a)(1), (2).
15 Th e legislative body may provide an unconditional commitment after the 30-day period. If the commitment is made after the 30-day period, however, the plaintiff is entitled to attorneys’ fees and costs. Cal. Gov. Code, § 54960.2, subd. (b).
16 C al. Gov. Code, § 54960.2, subd. (a)(4).
17 C al. Gov. Code, § 54960.2, subd. (c)(2).

Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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18 C al. Gov. Code, § 54960.2, subd. (c)(1).
19 C al. Gov. Code, § 54960.2, subd. (c)(3).
20 C al. Gov. Code, § 54960.2, subd. (d).
21 C al. Gov. Code, § 54960.2, subd. (e).
22 C al. Gov. Code, § 54960, subd. (a).
23 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 916 and fn.6.
24 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36. 25 C al. Gov. Code, § 54960, subd. (b).
26 C al. Gov. Code, § 54960, subd. (c).
27 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.

App.4th 1313, 1327-29 and cases cited therein.
28 C al. Gov. Code, § 54960.5.
29 C al. Gov. Code, § 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both (California Penal Code section 19). Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959. However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 30 C al. Gov. Code, § 54952.6.
31 61 O ps.Cal.Atty.Gen. 283 (1978).
32 C alifornia Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor. ” 33 Th e principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act. 86 CC 12-12-2025
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1400 K Street, Suite 400, Sacramento, CA 95814
Phone: (916) 658-8200 | Fax: (916) 658-8240
www.calcities.org | www.westerncity.com
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Rosenberg’s Rules of Order
REVISED 2011
Simple Rules of Parliamentary Procedure for the 21st Century By Judge Dave Rosenberg
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ii
MISSION and CORE BELIEFS
T o expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians.

VISION
T o be recognized and respected as the leading advocate for the common interests of California’s cities.

About the League of California Cities
Established in 1898, the League of California Cities is a member organization that represents California’s incorporated cities.

The League strives to protect the local authority and automony of city government and help California’s cities effectively serve their residents. In addition to advocating on cities’ behalf at the state capitol, the League provides its members with professional development programs and information resources, conducts education conferences and research, and publishes Western City magazine.
© 2011 League of California Cities. All rights reserved.

About the Author
Dave Rosenberg is a Superior Court Judge in Y olo County. He has served as presiding judge of his court, and as presiding judge of the Superior Court Appellate Division. He also has served as chair of the Trial Court Presiding Judges Advisory Committee (the committee composed of all 58 California presiding judges) and as an advisory member of the California Judicial Council. Prior to his appointment to the bench, Rosenberg was member of the Y olo County Board of Supervisors, where he served two terms as chair. Rosenberg also served on the Davis City Council, including two terms as mayor. He has served on the senior staff of two governors, and worked for 19 years in private law practice. Rosenberg has served as a member and chair of numerous state, regional and local boards. Rosenberg chaired the California State Lottery Commission, the California Victim Compensation and Government Claims Board, the Y olo-Solano Air Quality Management District, the Y olo County Economic Development Commission, and the Y olo County Criminal Justice Cabinet. For many years, he has taught classes on parliamentary procedure and has served as parliamentarian for large and small bodies.
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1 Table of Contents
About the Author ............................................................................................................ii I
ntroduction

....................................................................................................................2 Establishing a Quorum

...................................................................................................2 The Role of the Chair

......................................................................................................2 The Basic Format for an Agenda Item Discussion

........................................................2 Motions in General

.........................................................................................................3 The Three Basic Motions

................................................................................................3 Multiple Motions Before the Body

.................................................................................4 T o Debate or Not to Debate

............................................................................................4 Majority and Super-Majority Votes

...............................................................................5 Counting Votes

................................................................................................................5 The Motion to Reconsider

..............................................................................................6 Courtesy and Decorum

..................................................................................................7 Special Notes About Public Input

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2 Establishing a Quorum
The starting point for a meeting is the establishment of a quorum.

A quorum is defined as the minimum number of members of the body who must be present at a meeting for business to be legally transacted. The default rule is that a quorum is one more than half the body. For example, in a five-member body a quorum is three.

When the body has three members present, it can legally transact business. If the body has less than a quorum of members present, it cannot legally transact business. And even if the body has a quorum to begin the meeting, the body can lose the quorum during the meeting when a member departs (or even when a member leaves the dais). When that occurs the body loses its ability to transact business until and unless a quorum is reestablished.

The default rule, identified above, however, gives way to a specific rule of the body that establishes a quorum. For example, the rules of a particular five-member body may indicate that a quorum is four members for that particular body. The body must follow the rules it has established for its quorum. In the absence of such a specific rule, the quorum is one more than half the members of the body.

The Role of the Chair
While all members of the body should know and understand the rules of parliamentary procedure, it is the chair of the body who is charged with applying the rules of conduct of the meeting. The chair should be well versed in those rules. For all intents and purposes, the chair makes the final ruling on the rules every time the chair states an action. In fact, all decisions by the chair are final unless overruled by the body itself.

Since the chair runs the conduct of the meeting, it is usual courtesy for the chair to play a less active role in the debate and discussion than other members of the body. This does not mean that the chair should not participate in the debate or discussion. T o the contrary, as a member of the body, the chair has the full right to participate in the debate, discussion and decision-making of the body. What the chair should do, however, is strive to be the last to speak at the discussion and debate stage. The chair should not make or second a motion unless the chair is convinced that no other member of the body will do so at that point in time.

The Basic Format for an Agenda Item Discussion
Formal meetings normally have a written, often published agenda.

Informal meetings may have only an oral or understood agenda. In either case, the meeting is governed by the agenda and the agenda constitutes the body’s agreed-upon roadmap for the meeting. Each agenda item can be handled by the chair in the following basic format:

Introduction
The rules of procedure at meetings should be simple enough for most people to understand. Unfortunately, that has not always been the case. Virtually all clubs, associations, boards, councils and bodies follow a set of rules — Robert’s Rules of Order — which are embodied in a small, but complex, book. Virtually no one I know has actually read this book cover to cover. Worse yet, the book was written for another time and for another purpose. If one is chairing or running a parliament, then Robert’s Rules of Order is a dandy and quite useful handbook for procedure in that complex setting. On the other hand, if one is running a meeting of say, a five-member body with a few members of the public in attendance, a simplified version of the rules of parliamentary procedure is in order.

Hence, the birth of Rosenberg’s Rules of Order.

What follows is my version of the rules of parliamentary procedure, based on my decades of experience chairing meetings in state and local government. These rules have been simplified for the smaller bodies we chair or in which we participate, slimmed down for the 21st Century, yet retaining the basic tenets of order to which we have grown accustomed. Interestingly enough, Rosenberg’s Rules has found a welcoming audience. Hundreds of cities, counties, special districts, committees, boards, commissions, neighborhood associations and private corporations and companies have adopted Rosenberg’s Rules in lieu of Robert’s Rules because they have found them practical, logical, simple, easy to learn and user friendly.

This treatise on modern parliamentary procedure is built on a foundation supported by the following four pillars:

1. R
ules should establish order. The first purpose of rules of parliamentary procedure is to establish a framework for the orderly conduct of meetings.

2. R
ules should be clear. Simple rules lead to wider understanding and participation. Complex rules create two classes: those who understand and participate; and those who do not fully understand and do not fully participate.

3. R
ules should be user friendly. That is, the rules must be simple enough that the public is invited into the body and feels that it has participated in the process.

4. R
ules should enforce the will of the majority while protecting the rights of the minority. The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision making by the body. In a democracy, majority rules. The rules must enable the majority to express itself and fashion a result, while permitting the minority to also express itself, but not dominate, while fully participating in the process.
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3 Ninth, the chair takes a vote. Simply asking for the “ayes” and then asking for the “nays” normally does this. If members of the body do not vote, then they “abstain. ” Unless the rules of the body provide otherwise (or unless a super majority is required as delineated later in these rules), then a simple majority (as defined in law or the rules of the body as delineated later in these rules) determines whether the motion passes or is defeated.

T enth, the chair should announce the result of the vote and what action (if any) the body has taken. In announcing the result, the chair should indicate the names of the members of the body, if any, who voted in the minority on the motion. This announcement might take the following form: “The motion passes by a vote of 3-2, with Smith and Jones dissenting. We have passed the motion requiring a 10-day notice for all future meetings of this body. ”
Motions in General
Motions are the vehicles for decision making by a body. It is usually best to have a motion before the body prior to commencing discussion of an agenda item. This helps the body focus.

Motions are made in a simple two-step process. First, the chair should recognize the member of the body. Second, the member of the body makes a motion by preceding the member’s desired approach with the words “I move … ”
A typical motion might be: “I move that we give a 10-day notice in the future for all our meetings. ”
The chair usually initiates the motion in one of three ways:

1. Inviting
the members of the body to make a motion, for
example, “A motion at this time would be in order. ”

2. S
uggesting a motion to the members of the body, “A motion would be in order that we give a 10-day notice in the future for all our meetings. ”

3. M
aking the motion. As noted, the chair has every right as a member of the body to make a motion, but should normally do so only if the chair wishes to make a motion on an item but is convinced that no other member of the body is willing to step forward to do so at a particular time.

The Three Basic Motions
There are three motions that are the most common and recur often at meetings:

The basic motion. The basic motion is the one that puts forward a decision for the body’s consideration. A basic motion might be: “I move that we create a five-member committee to plan and put on our annual fundraiser. ”
First, the chair should clearly announce the agenda item number and should clearly state what the agenda item subject is. The chair should then announce the format (which follows) that will be followed in considering the agenda item.

Second, following that agenda format, the chair should invite the appropriate person or persons to report on the item, including any recommendation that they might have. The appropriate person or persons may be the chair, a member of the body, a staff person, or a committee chair charged with providing input on the agenda item.

Third, the chair should ask members of the body if they have any technical questions of clarification. At this point, members of the body may ask clarifying questions to the person or persons who reported on the item, and that person or persons should be given time to respond.

Fourth, the chair should invite public comments, or if appropriate at a formal meeting, should open the public meeting for public input.

If numerous members of the public indicate a desire to speak to the subject, the chair may limit the time of public speakers. At the conclusion of the public comments, the chair should announce that public input has concluded (or the public hearing, as the case may be, is closed).

Fifth, the chair should invite a motion. The chair should announce the name of the member of the body who makes the motion.

Sixth, the chair should determine if any member of the body wishes to second the motion. The chair should announce the name of the member of the body who seconds the motion. It is normally good practice for a motion to require a second before proceeding to ensure that it is not just one member of the body who is interested in a particular approach. However, a second is not an absolute requirement, and the chair can proceed with consideration and vote on a motion even when there is no second. This is a matter left to the discretion of the chair.

Seventh, if the motion is made and seconded, the chair should make sure everyone understands the motion.

This is done in one of three ways:

1. T
he chair can ask the maker of the motion to repeat it;

2. T
he chair can repeat the motion; or

3. T
he chair can ask the secretary or the clerk of the body to repeat the motion.

Eighth, the chair should now invite discussion of the motion by the body. If there is no desired discussion, or after the discussion has ended, the chair should announce that the body will vote on the motion. If there has been no discussion or very brief discussion, then the vote on the motion should proceed immediately and there is no need to repeat the motion. If there has been substantial discussion, then it is normally best to make sure everyone understands the motion by repeating it.
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4 First, the chair would deal with the third (the last) motion on the floor, the substitute motion. After discussion and debate, a vote would be taken first on the third motion. If the substitute motion passed, it would be a substitute for the basic motion and would eliminate it. The first motion would be moot, as would the second motion (which sought to amend the first motion), and the action on the agenda item would be completed on the passage by the body of the third motion (the substitute motion). No vote would be taken on the first or second motions.

Second, if the substitute motion failed, the chair would then deal with the second (now the last) motion on the floor, the motion to amend. The discussion and debate would focus strictly on the amendment (should the committee be five or 10 members). If the motion to amend passed, the chair would then move to consider the main motion (the first motion) as amended. If the motion to amend failed, the chair would then move to consider the main motion (the first motion) in its original format, not amended.

Third, the chair would now deal with the first motion that was placed on the floor. The original motion would either be in its original format (five-member committee), or if amended, would be in its amended format (10-member committee). The question on the floor for discussion and decision would be whether a committee should plan and put on the annual fundraiser.

T o Debate or Not to Debate
The basic rule of motions is that they are subject to discussion and debate. Accordingly, basic motions, motions to amend, and substitute motions are all eligible, each in their turn, for full discussion before and by the body. The debate can continue as long as members of the body wish to discuss an item, subject to the decision of the chair that it is time to move on and take action.

There are exceptions to the general rule of free and open debate on motions. The exceptions all apply when there is a desire of the body to move on. The following motions are not debatable (that is, when the following motions are made and seconded, the chair must immediately call for a vote of the body without debate on the motion):

Motion to adjourn. This motion, if passed, requires the body to immediately adjourn to its next regularly scheduled meeting. It requires a simple majority vote.

Motion to recess. This motion, if passed, requires the body to immediately take a recess. Normally, the chair determines the length of the recess which may be a few minutes or an hour. It requires a simple majority vote.

Motion to fix the time to adjourn. This motion, if passed, requires the body to adjourn the meeting at the specific time set in the motion. For example, the motion might be: “I move we adjourn this meeting at midnight. ” It requires a simple majority vote.

The motion to amend. If a member wants to change a basic motion that is before the body, they would move to amend it. A motion to amend might be: “I move that we amend the motion to have a 10-member committee. ” A motion to amend takes the basic motion that is before the body and seeks to change it in some way.

The substitute motion. If a member wants to completely do away with the basic motion that is before the body, and put a new motion before the body, they would move a substitute motion. A substitute motion might be: “I move a substitute motion that we cancel the annual fundraiser this year. ”
“Motions to amend” and “substitute motions” are often confused, but they are quite different, and their effect (if passed) is quite different.

A motion to amend seeks to retain the basic motion on the floor, but modify it in some way. A substitute motion seeks to throw out the basic motion on the floor, and substitute a new and different motion for it. The decision as to whether a motion is really a “motion to amend” or a “substitute motion” is left to the chair. So if a member makes what that member calls a “motion to amend, ” but the chair determines that it is really a “substitute motion, ” then the chair’s designation governs.

A “friendly amendment” is a practical parliamentary tool that is simple, informal, saves time and avoids bogging a meeting down with numerous formal motions. It works in the following way: In the discussion on a pending motion, it may appear that a change to the motion is desirable or may win support for the motion from some members. When that happens, a member who has the floor may simply say, “I want to suggest a friendly amendment to the motion. ” The member suggests the friendly amendment, and if the maker and the person who seconded the motion pending on the floor accepts the friendly amendment, that now becomes the pending motion on the floor. If either the maker or the person who seconded rejects the proposed friendly amendment, then the proposer can formally move to amend.

Multiple Motions Before the Body
There can be up to three motions on the floor at the same time.

The chair can reject a fourth motion until the chair has dealt with the three that are on the floor and has resolved them. This rule has practical value. More than three motions on the floor at any given time is confusing and unwieldy for almost everyone, including the chair.

When there are two or three motions on the floor (after motions and seconds) at the same time, the vote should proceed first on the last motion that is made. For example, assume the first motion is a basic “motion to have a five-member committee to plan and put on our annual fundraiser. ” During the discussion of this motion, a member might make a second motion to “amend the main motion to have a 10-member committee, not a five-member committee to plan and put on our annual fundraiser. ” And perhaps, during that discussion, a member makes yet a third motion as a “substitute motion that we not have an annual fundraiser this year. ” The proper procedure would be as follows:
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5 Motion to close nominations. When choosing officers of the body (such as the chair), nominations are in order either from a nominating committee or from the floor of the body. A motion to close nominations effectively cuts off the right of the minority to nominate officers and it requires a two-thirds vote to pass.

Motion to object to the consideration of a question. Normally, such a motion is unnecessary since the objectionable item can be tabled or defeated straight up. However, when members of a body do not even want an item on the agenda to be considered, then such a motion is in order. It is not debatable, and it requires a two-thirds vote to pass.

Motion to suspend the rules. This motion is debatable, but requires a two-thirds vote to pass. If the body has its own rules of order, conduct or procedure, this motion allows the body to suspend the rules for a particular purpose. For example, the body (a private club) might have a rule prohibiting the attendance at meetings by non-club members. A motion to suspend the rules would be in order to allow a non-club member to attend a meeting of the club on a particular date or on a particular agenda item.

Counting Votes
The matter of counting votes starts simple, but can become complicated.

Usually, it’s pretty easy to determine whether a particular motion passed or whether it was defeated. If a simple majority vote is needed to pass a motion, then one vote more than 50 percent of the body is required. For example, in a five-member body, if the vote is three in favor and two opposed, the motion passes. If it is two in favor and three opposed, the motion is defeated.

If a two-thirds majority vote is needed to pass a motion, then how many affirmative votes are required? The simple rule of thumb is to count the “no” votes and double that count to determine how many “yes” votes are needed to pass a particular motion. For example, in a seven-member body, if two members vote “no” then the “yes” vote of at least four members is required to achieve a two-thirds majority vote to pass the motion.

What about tie votes? In the event of a tie, the motion always fails since an affirmative vote is required to pass any motion. For example, in a five-member body, if the vote is two in favor and two opposed, with one member absent, the motion is defeated.

Vote counting starts to become complicated when members vote “abstain” or in the case of a written ballot, cast a blank (or unreadable) ballot. Do these votes count, and if so, how does one count them? The starting point is always to check the statutes.

In California, for example, for an action of a board of supervisors to be valid and binding, the action must be approved by a majority of the board. (California Government Code Section 25005.) Typically, this means three of the five members of the board must vote affirmatively in favor of the action. A vote of 2-1 would not be sufficient. A vote of 3-0 with two abstentions would be sufficient. In general law cities in Motion to table. This motion, if passed, requires discussion of the agenda item to be halted and the agenda item to be placed on “hold. ” The motion can contain a specific time in which the item can come back to the body. “I move we table this item until our regular meeting in October. ” Or the motion can contain no specific time for the return of the item, in which case a motion to take the item off the table and bring it back to the body will have to be taken at a future meeting. A motion to table an item (or to bring it back to the body) requires a simple majority vote.

Motion to limit debate. The most common form of this motion is to say, “I move the previous question” or “I move the question” or “I call the question” or sometimes someone simply shouts out “question. ” As a practical matter, when a member calls out one of these phrases, the chair can expedite matters by treating it as a “request” rather than as a formal motion. The chair can simply inquire of the body, “any further discussion?” If no one wishes to have further discussion, then the chair can go right to the pending motion that is on the floor.

However, if even one person wishes to discuss the pending motion further, then at that point, the chair should treat the call for the “question” as a formal motion, and proceed to it.

When a member of the body makes such a motion (“I move the previous question”), the member is really saying: “I’ve had enough debate. Let’s get on with the vote. ” When such a motion is made, the chair should ask for a second, stop debate, and vote on the motion to limit debate. The motion to limit debate requires a two-thirds vote of the body.

Note: A motion to limit debate could include a time limit. For example: “I move we limit debate on this agenda item to 15 minutes. ” Even in this format, the motion to limit debate requires a two- thirds vote of the body. A similar motion is a motion to object to consideration of an item. This motion is not debatable, and if passed, precludes the body from even considering an item on the agenda. It also requires a two-thirds vote.

Majority and Super Majority Votes
In a democracy, a simple majority vote determines a question. A tie vote means the motion fails. So in a seven-member body, a vote of 4-3 passes the motion. A vote of 3-3 with one abstention means the motion fails. If one member is absent and the vote is 3-3, the motion still fails.

All motions require a simple majority, but there are a few exceptions.

The exceptions come up when the body is taking an action which effectively cuts off the ability of a minority of the body to take an action or discuss an item. These extraordinary motions require a two-thirds majority (a super majority) to pass:

Motion to limit debate. Whether a member says, “I move the previous question, ” or “I move the question, ” or “I call the question, ” or “I move to limit debate, ” it all amounts to an attempt to cut off the ability of the minority to discuss an item, and it requires a two-thirds vote to pass.
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6 Now, exactly how does a member cast an “abstention” vote? Any time a member votes “abstain” or says, “I abstain, ” that is an abstention. However, if a member votes “present” that is also treated as an abstention (the member is essentially saying, “Count me for purposes of a quorum, but my vote on the issue is abstain. ”) In fact, any manifestation of intention not to vote either “yes” or “no” on the pending motion may be treated by the chair as an abstention. If written ballots are cast, a blank or unreadable ballot is counted as an abstention as well.

Can a member vote “absent” or “count me as absent?” Interesting question. The ruling on this is up to the chair. The better approach is for the chair to count this as if the member had left his/her chair and is actually “absent. ” That, of course, affects the quorum. However, the chair may also treat this as a vote to abstain, particularly if the person does not actually leave the dais.

The Motion to Reconsider
There is a special and unique motion that requires a bit of explanation all by itself; the motion to reconsider. A tenet of parliamentary procedure is finality. After vigorous discussion, debate and a vote, there must be some closure to the issue. And so, after a vote is taken, the matter is deemed closed, subject only to reopening if a proper motion to consider is made and passed.

A motion to reconsider requires a majority vote to pass like other garden-variety motions, but there are two special rules that apply only to the motion to reconsider.

First, is the matter of timing. A motion to reconsider must be made at the meeting where the item was first voted upon. A motion to reconsider made at a later time is untimely. (The body, however, can always vote to suspend the rules and, by a two-thirds majority, allow a motion to reconsider to be made at another time.)
Second, a motion to reconsider may be made only by certain members of the body. Accordingly, a motion to reconsider may be made only by a member who voted in the majority on the original motion. If such a member has a change of heart, he or she may make the motion to reconsider (any other member of the body — including a member who voted in the minority on the original motion — may second the motion). If a member who voted in the minority seeks to make the motion to reconsider, it must be ruled out of order. The purpose of this rule is finality. If a member of minority could make a motion to reconsider, then the item could be brought back to the body again and again, which would defeat the purpose of finality.

If the motion to reconsider passes, then the original matter is back before the body, and a new original motion is in order. The matter may be discussed and debated as if it were on the floor for the first time.

California, as another example, resolutions or orders for the payment of money and all ordinances require a recorded vote of the total members of the city council. (California Government Code Section 36936.) Cities with charters may prescribe their own vote requirements. Local elected officials are always well-advised to consult with their local agency counsel on how state law may affect the vote count.

After consulting state statutes, step number two is to check the rules of the body. If the rules of the body say that you count votes of “those present” then you treat abstentions one way. However, if the rules of the body say that you count the votes of those “present and voting, ” then you treat abstentions a different way. And if the rules of the body are silent on the subject, then the general rule of thumb (and default rule) is that you count all votes that are “present and voting. ” Accordingly, under the “present and voting” system, you would NOT count abstention votes on the motion. Members who abstain are counted for purposes of determining quorum (they are “present”), but you treat the abstention votes on the motion as if they did not exist (they are not “voting”). On the other hand, if the rules of the body specifically say that you count votes of those “present” then you DO count abstention votes both in establishing the quorum and on the motion. In this event, the abstention votes act just like “no” votes.

How does this work in practice?
Here are a few examples.

Assume that a five-member city council is voting on a motion that requires a simple majority vote to pass, and assume further that the body has no specific rule on counting votes. Accordingly, the default rule kicks in and we count all votes of members that are “present and voting. ” If the vote on the motion is 3-2, the motion passes. If the motion is 2-2 with one abstention, the motion fails.

Assume a five-member city council voting on a motion that requires a two-thirds majority vote to pass, and further assume that the body has no specific rule on counting votes. Again, the default rule applies.

If the vote is 3-2, the motion fails for lack of a two-thirds majority. If the vote is 4-1, the motion passes with a clear two-thirds majority. A vote of three “yes, ” one “no” and one “abstain” also results in passage of the motion. Once again, the abstention is counted only for the purpose of determining quorum, but on the actual vote on the motion, it is as if the abstention vote never existed — so an effective 3-1 vote is clearly a two-thirds majority vote.

Now, change the scenario slightly. Assume the same five-member city council voting on a motion that requires a two-thirds majority vote to pass, but now assume that the body DOES have a specific rule requiring a two-thirds vote of members “present. ” Under this specific rule, we must count the members present not only for quorum but also for the motion. In this scenario, any abstention has the same force and effect as if it were a “no” vote. Accordingly, if the votes were three “yes, ” one “no” and one “abstain, ” then the motion fails. The abstention in this case is treated like a “no” vote and effective vote of 3-2 is not enough to pass two-thirds majority muster.
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7 Appeal. If the chair makes a ruling that a member of the body disagrees with, that member may appeal the ruling of the chair. If the motion is seconded, and after debate, if it passes by a simple majority vote, then the ruling of the chair is deemed reversed.

Call for orders of the day. This is simply another way of saying, “return to the agenda. ” If a member believes that the body has drifted from the agreed-upon agenda, such a call may be made. It does not require a vote, and when the chair discovers that the agenda has not been followed, the chair simply reminds the body to return to the agenda item properly before them. If the chair fails to do so, the chair’s determination may be appealed.

Withdraw a motion. During debate and discussion of a motion, the maker of the motion on the floor, at any time, may interrupt a speaker to withdraw his or her motion from the floor. The motion is immediately deemed withdrawn, although the chair may ask the person who seconded the motion if he or she wishes to make the motion, and any other member may make the motion if properly recognized.

Special Notes About Public Input
The rules outlined above will help make meetings very public- friendly. But in addition, and particularly for the chair, it is wise to remember three special rules that apply to each agenda item:

Rule One: T ell the public what the body will be doing.

Rule Two: Keep the public informed while the body is doing it.

Rule Three: When the body has acted, tell the public what the body did.

Courtesy and Decorum
The rules of order are meant to create an atmosphere where the members of the body and the members of the public can attend to business efficiently, fairly and with full participation. At the same time, it is up to the chair and the members of the body to maintain common courtesy and decorum. Unless the setting is very informal, it is always best for only one person at a time to have the floor, and it is always best for every speaker to be first recognized by the chair before proceeding to speak.

The chair should always ensure that debate and discussion of an agenda item focuses on the item and the policy in question, not the personalities of the members of the body. Debate on policy is healthy, debate on personalities is not. The chair has the right to cut off discussion that is too personal, is too loud, or is too crude.

Debate and discussion should be focused, but free and open. In the interest of time, the chair may, however, limit the time allotted to speakers, including members of the body.

Can a member of the body interrupt the speaker? The general rule is “no. ” There are, however, exceptions. A speaker may be interrupted for the following reasons:

Privilege. The proper interruption would be, “point of privilege. ” The chair would then ask the interrupter to “state your point. ” Appropriate points of privilege relate to anything that would interfere with the normal comfort of the meeting. For example, the room may be too hot or too cold, or a blowing fan might interfere with a person’s ability to hear.

Order. The proper interruption would be, “point of order. ” Again, the chair would ask the interrupter to “state your point. ” Appropriate points of order relate to anything that would not be considered appropriate conduct of the meeting. For example, if the chair moved on to a vote on a motion that permits debate without allowing that discussion or debate.
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CITY OF CUPERTINO
Agenda Item
25-14584 Agenda Date:
12/12/2025 Agenda #: 2.

Subject: 1) Conduct Study Session on the Mary Avenue Project (“Project”), including project history, project siting, the conditional transfer of City-owned property rights, affordability restrictions, and remaining steps prior to entitlement and closing on the Project; and 2) Consider Appointing Negotiator(s) for the possible transfer of certain rights to City-owned property (APN: 326-27-053), in the form of a ground lease or a sale with the City’s future right to repurchase (Continued from December 2, 2025)
1: Study Session completed on December 2, 2025. No further action to be taken. 2: Appoint the City Manager and the Interim City Attorney as Negotiators with the Nonprofit Public Benefit Corporation, Charities Housing Development Corporation of Santa Clara County (the “Developer”), regarding the possible transfer of property rights in the form of a ground lease or sale with the City’s future right to repurchase. (The public comment period for this item was conducted and closed on December 2, 2025; the public comment period remains closed such that no further public comment will be taken.)
CITY OF CUPERTINO Printed on 12/9/2025Page 1 of 1
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1 COMMUNITY DEVELOPMENT DEPARTMENT
CITY ATTORNEY’S OFFICE

CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3403
CUPERTINO.GOV

CITY COUNCIL STAFF REPORT
Date: December 2, 2025
Subject
Study Session on Mary Avenue project (“Mary Ave.” or “Project”) with history, timeline, status, and recommended next steps
Recommended Action
Consider Mary Ave. project and provide direction on next steps Executive Summary
Over the past five years the City has been planning a housing project to accommodate the Intellectually Developmentally Disabled (“IDD”) population with Extremely Low Income (“ELI”) housing units and subsequently issued a Request For Proposal (“RFP”) for s uch development.

The project was initiated at City Council direction through the City Work Program. The Cupertino Rotary Housing Corporation, Housing Choices Coalition, and Charities Housing were, together, the sole respondent to that RFP. In April 2025, t he City authorized just over $4 million in funding for the Project. In July 2025, the City received an Article 34 allocation from the County of Santa Clara, satisfying the State Constitutional requirement that voters approve the use of public funds for such housing.

Now, various additional City approvals will be required to enable the development, including entering into an agreement to transfer certain real property rights to the developer via a sale or ground lease, vacating certain interests in the City right -of-way, filing a declaration with the California Department of Housing and Community Development’s (“HCD”) stating that the property is exempt surplus land owned by the City that will be used for below market rate housing, and issuing the entit lements under the State’s housing laws and the City’s municipal code.

Project History
Starting with the Fiscal Year (FY) 2019 -20 City Work Program, the City has included a project item to engage with philanthropic organizations to find a way to facilitate the construction of ELI housing units for the IDD populations within the City. Specifically, the objective had been to explore the possibility of building six to eight affordable ownership townhomes for this population. During the FY 2021-2022 City Work Program update, the project objective evolved to 100
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2 analyze the feasibility of developing housing for this target population on City owned property within the public right -of-way along Mary Avenue. Since this time, the City has taken the following actions to address the City Work Program item:

 March 10, 2021 – City sought legal counsel regarding the requirements of the Surplus Land Act and its applicability to the Project.

 December 15, 2021 – Execution of a Permanent Local Housing Allocation Consortium Agreement with County of Santa Clara (relevant to funding of Project).

 December 22, 2021 – Execution of a First Amendment to Permanent Local Housing Allocation Consortium Agreement with County of Santa Clara.

 March 15, 2022 – City Council directed staff to initiate the RFP for the Project, specifically pointing out that Council would like the Project to be developed as 100% affordable with a preference for the IDD population, and to provide flexibility to staff members compiling the RFP to optimize our chances of having a successful project. The draft parcel map was introduced to the City Council as well as the steps necessary to transfer the City-owned property in compliance with the Surplus Land Act. The motion was carried unanimously.

 August 18, 2022 - an RFP was circulated to qualified housing developers.

 October 10, 2022 - the first draft of the Housing Element was made public with the Mary Avenue parcel identified as a Housing Element Site.

 October 18, 2022 - the City received a single response to the RFP submitted jointly by The Cupertino Rotary Housing Corporation Housing Choices Coalition, and Charities Housing.

 May 2, 2023 – Parcel Map recorded

 February 6, 2024 - City Council unanimously approved an Exclusive Negotiating Agreement.

 April 9, 2024 - Execution of Exclusive Negotiating Agreement.

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3  May 14, 2024 - City Council adopted the 6th Cycle Housing Element, which designated this site as a Priority Housing Site (HE Site 10), with an R4 zoning designation and a residential density of 50-65 DU/acre.

 September 4, 2024 – City Council authorized the remaining budget amount (up to $235,000) to evaluate the proposal received for the City-owned property on Mary Avenue. The motion passed 4-0-1, with one Councilmember absent.

 September 4, 2024 - HCD notified the City that the Housing Element adopted by the City Council on May 14, 2024, is in compliance with the State Housing Element Law. This included the Mary Avenue parcel as a Housing Element Site.

 April 3, 2025 - Charities Housing applied for an Architectural and Site Approval (ASA- 2025-006) consistent with the Municipal Code requirements for Housing Element Sites that are over 20% low-income units.

 April 15, 2025 – City Council authorized an allocation of $4,083,250 of cash assistance for the Project. The allocation is comprised of $3 million of funds from the City’s BMR Affordable Housing Fund, $908,683 of Permanent Local Housing Allocation (“PLHA”) funds, and $174,567.37 of Community Development Block Grant (“CDBG”) funds to be used for public infrastructure improvements. These three allocations provided a total of $4,083,250 in cash assistance to the Project.

 July 15, 2025 – City Council conducted a Study Session on the Project. City Council adopted a motion (3-2) to allow the project to proceed as previously described; to address the newly raised Article 34 issue; and to address the questions of parking in an additional informational memo.

 July 29, 2025 – Article 34 allocation awarded from County of Santa Clara to Charities Housing for Mary Ave Project.

The proposal envisions a 100% affordable, 40-unit, two-story, rental housing development project on city-owned surplus property of approximately 0.79 acres along the Mary Avenue right -of- way, adjacent to Highway 85. The individual apartments will be a mix of studio, one-, and two- bedroom units with one three -bedroom staff unit. The proposal is structured as a special needs project which requires a minimum of 45% ( 19 units) to be reserved for the special needs population, in this case, IDD. The remaining 21 apartments will serve extremely low and very low-income residents of the community. The affordability levels of the proposed units will range from 30% to 60% of the Area Median Income (AMI). The Mary Avenue right-of-way will be modified to accommodate the proposed development, as well as maintain the sidewalk, bike lanes, and vehicle lanes along Mary Avenue . A pproximately 79 of the existing angled street 102
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4 parking spaces located along the west side of Mary Avenue, including those within the limits of the parcel, will be replaced by 33 parallel spaces in the right-of-way. Along the eastern side of Mary Avenue, 43 parallel parking spaces will also be removed, resulting in a net on-street parking loss of 89 spaces (79+43 -33 spaces). Please reference Attachment H – Existing Conditions and Demolition Plan to review an outline of the parcel and the existing parking on the westside of Mary Avenue. Bike lanes in both directions will continue to be provided, with the addition of a sidewalk in front of the Project where one does not exist currently.

Charities Housing has proactively conducted three community outreach efforts at the Quinlan Center on the following dates and locations:
 Community Listening Session #1, July 23, 2024
 Community Listening Session #2, January 28, 2025
 Community Open House, September 11, 2025
Financial Status
The City engaged an independent firm to assess the reasonableness of the developer’s pro forma assumptions and inputs in order to analyze the Project’s financial feasibility and need for a financial subsidy from the City. The review concluded that the developer’s pro forma was reasonable. As the Project has developed, changes have been made to the Project and the developer’s financial position, necessitating updates to the pro forma. The City has committed the following financial support for the Project:

1. The sale of the property under a Disposition and Development Agreement (“DDA”) for the nominal price of $1 with a repurchase option under certain circumstances or a long- term Ground Lease with nominal rent.

2. A hard money loan of approximately $3 million from the City’s BMR Fund with repayment at 3% simple interest per annum. Payments commence once the Project achieves positive cash flow, with accrued interest capitalized until such time.

3. A payment of $908,683 in PLHA funds for predevelopment expenses.

4. CDBG grant funds in the amount of approximately $174,567.37.

5. City is waiving Park Development Impact Fees in the amount of $2.16 million.

Current State of Project
On April 3, 2025, Charities Housing applied for an Architectural Site Approval (ASA -2025-006).

The application was deemed complete on September 4, 2025. Currently, the application is being reviewed for consistency with the objective standards as set forth in the General Plan and the R4 Zoning District, as well as being reviewed by Public Works, Cupertino Sanitary, and the Santa Clara County Fire Department. Before California's 2025 Building Code takes effect on January 1, 2026, the applicant is hoping to su bmit building plans for review with the understanding that permit issuance will be subject to Project approval by City Council.

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5 The 2026 California State Low Income Tax Credit program application deadlines have not yet been confirmed. However, the tentative deadline to apply for 9% tax credits is anticipated to be April 7, 2026, or another date in early Spring. There are two rounds of applications per year, with the next available date being July 21, 2026. In order to have a competitive application and ensure the success of the project, it is optimal to have the City’s financial commitments, funding loans, and transfer of property rights executed by late February 2026. Execution of regulatory documents, such as affordability restrictions , shall be complet ed concurrently with closing.

Adhering to this schedule will allow Charities Housing, as the developer, enough time to prepare a successful application.

Legal Questions

Vacation

1. The Streets and Highways Code (“SHC”) (§8300 et seq.) does not establish any specific timing requirements regarding when a non-summary vacation must occur within a broader project or transactional timeline, as long as it is completed prior to disposition of the property. Accordingly, the City remains within the permissible timeframe to undertake the vacation process and plans to do so at the appropriate stage.

2. The SHC sets forth two vacation procedures: a summary vacation and a non-summary vacation. Because the property does not qualify for the summary procedure, this Staff Report addresses only the non-summary vacation process. Govt. C §66434(g) also allows for abandonment of public streets and public easements through the filing of a map in lieu of the formal vacation process under the SHC; however, such subsection does not apply to this Project and therefore is not discussed herein.

3. The non-summary vacation procedure is as follows:

a. Planning Commission: If the City’s general plan applies to the property that is proposed to be vacated, then the proposed vacation must be submitted to the planning commission for review pursuant to Government Code (“Govt. C”) §65402(a); SHC §8313. The Planning Commission must make a report regarding the conformity of the proposed street vacation with the City’s general plan within 40 days of submission unless a longer period of time is designated by the City Council pursuant to Govt. C §65402.

b. Notice: After the Planning Commission’s finding of conformity, the City Council may initiate proceedings by setting a hearing pursuant to SHC §8320. A notice which sets forth the time and place of the hearing must be (i) published in a daily, semiweekly, or weekly newspaper (SHC §8322), and (ii) posted along the street line no more than 300 feet apart, with at least three notices posted. SHC §8323. The hearing must be held at least 15 days after the publication and posting of the notice. SHC §8320. Additional requirements are imposed for streets exceeding 1 mile which do not apply here and have therefore been omitted.

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6 c. Hearing: At the hearing, City Council must hear evidence presented by interested persons. SHC §8324(a).

d. Resolution: If the street is found to be unnecessary for present or prospective public use, the City Council may adopt a resolution vacating the street. The resolution may (i) impose conditions of approval (SHC §8324(b)), and (ii) reserve from vacation any easements related to future sewers, storm drains, other utilities, future streets, existing utilities, future vehicular and nonvehicular trails for use by the public. SHC §8340. A certified copy of the resolution must be recorded. SHC §8325(a). From the date of recordation and compliance with any applicable conditions, the vacation is complete. SHC §8325(b).

Surplus Land Act

1. The Surplus Land Act (“SLA”) is codified in Govt. C §§54220-54234 and implemented in accordance with the HCD’sSurplue Land Act Guidelines (“HCD Guidelines”). The SLA does not impose a specific deadline for a local agency to designate property as surplus land or exempt surplus land as long as it is completed prior to disposition of the property. Accordingly, the City remains within the permissible timeframe to make the required SLA declaration. Common municipal practice is for the City making the exempt surplus land determination to do so concurrently with approval of the DDA.

2. The SLA sets forth two procedures, one for surplus land and another for exempt surplus land. The Project was structured from inception to qualify as exempt surplus land.

Therefore, the procedures for surplus land shall only be described to the extent that it is relevant in clarifying questions that have arisen from the public. However, please note that an exhaustive description of the procedure for surplus land is not included herein.

3. The determination of whether the Project is surplus land or exempt surplus land is made based on the following:

a. Surplus land is defined in Govt. C §54221(b)(1) and HCD Guidelines §102(dd) as “land owned in fee simple by any local agency for which the local agency's governing body takes formal action in a regular public meeting declaring that the land is surplus and is not necessary for the agency's use. Land shall be declared either ‘surplus land’ or ‘exempt surplus land,’ as supported by written findings, before a local agency may take any action to dispose of it consistent with an agency's policies or procedures.”

i. Disposition of surplus land must comply with Govt. C §54222 and Articles II and III of HCD Guidelines. These requirements include, among other things, issuing a Notice of Availability to all entities that have filed a statement of interest with HCD, adhering to prescribed negotiation procedures and restrictions, following the required prioritization of qualifying proposals, and engaging in a good-faith negotiation process.

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7 b. Section 103(a) of the HCD Guidelines, exempts surplus land from compliance with Articles II and III of such guidelines (a more detailed description of the process of exempt surplus land is included in Section 4 below). The Project was structured from its inception to meet the requirements for an exemption. The Project likely qualifies for either of the following two exemptions from the SLA:

i. Surplus land that is transferred pursuant to Govt. C §§25539.4 or 37364, Govt. C §54220 (f)(1)(A), and

ii. Surplus land that is to be developed for a housing development, which may have ancillary commercial ground floor uses, that restricts 100 percent of the residential units to persons and families of low or moderate income, with at least 75 percent of the residential units restricted to lower income households, as defined in §50079.5 of the Health and Safety Code (“HSC”), with an affordable sales price or an affordable rent, as defined in HSC §50052.5 or HSC §50053, for a minimum of 55 years for rental housing, land use for ownership housing, and 50 years for rental or ownership housing located on tribal trust lands, and in no event shall the maximum affordable sales price or rent level be higher than 20 percent below the median market rents or sales prices for the neighborhood in which the site is located. Govt. C §54220 (f)(1)(F)(i).

4. The procedure for exempt surplus land is as follows:

a. Declaration of Exemption: The exemption of surplus land can be effectuated in one of two ways:

i. The City Council may declare the property to be “exempt surplus land” at a regular public meeting and the declaration must be supported by written findings demonstrating that the land meets the requirements of the applicable exemption. Govt. C §54221(b)(1), HCD Guidelines §103(c).

ii. The City may identify the land in a notice that is published and available for public comment, including notice to the entities identified in Govt. C §54222(a) and HCD Guidelines §201(a), at least 30 days before the exemption takes effect. Govt. C §54221(b)(4), HCD Guidelines §103(c)(1).

The notice must include the information required in HCD Guidelines §400(e)(3).

b. Notice to HCD: The City must provide HCD with a copy of the resolution (or other document recording formal action) declaring the property exempt surplus land, written findings supporting such a declaration, and a copy of the DDA at least 30 days prior to disposition. HCD Guidelines §§103(c)(2)(A), 400(e)(1-4).

Disposition and Development Agreement (Not Development Agreement)

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8 1. A Development Agreement is a contract authorized by Govt. C §65864 et seq. that allows a city and a developer to vest development rights and “freeze” applicable land use regulations as of the date of the agreement’s approval. Development Agreements were historically created to provide certainty to developers, particularly for multi-year projects, by protecting them from subsequent changes in zoning or other land use regulations. State law establishes a defined approval process: the agreement must be consistent with the City’s General Plan and applicable policies, must undergo a noticed public hearing before both the Planning Commission and the City Council, and must ultimately be approved by ordinance.

2. A Disposition and Development Agreement is not created under a specific statutory scheme; it is a contract governed by general contract principles and the City’s discretionary authority to dispose of property. A DDA typically combines elements of a purchase and sale agreement with detailed development obligations, such as required improvements, performance milestones, affordability or public benefit requirements, and remedies for nonperformance. Because DDAs are contractual rather than statutory, there is no prescribed approval procedure beyond the City’s standard requirements for approving contracts involving the conveyance of public property. Generally, such process involves City Council approval at a noticed public meeting. The form of approval is typically a resolution authorizing the City Manager to execute the agreement unless a local ordinance requires otherwise.

Entitlements

1. State housing law, including the Housing Accountability Act (Govt. C §65589.5), the Housing Crisis Act of 2019 (SB 330, Govt. Code §66300 et seq.), SB 35 (Gov. Code §65913.4), and Housing Element Law (Gov. Code §65580 et seq.) provides a framework that guides local decision-making on housing development. These laws establish objective standards and timelines for certain housing projects, encourage the City to maintain adequate zoning capacity to meet regional housing needs, and limit discretionary actions that would conflict with these objectives. Within this framework, the City Council retains discretion to review and shape projects, while also ensuring consistency with state housing policy and local planning goals.

Future Required Actions and Expected Timing
Today only a few milestones are left in the development approval process:

The parties must agree on the terms of the property right transfer, via a DDA with a buyback provision, including a clear formula for determining the repurchase price, or via a long -term Ground Lease. Approval of the DDA or Ground lease is expected to come before the City Council in early 2026.

The City Council must declare the pr operty to be exempt surplus land and file such declaration with HCD.

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9 The City Council must approve the vacation of the right-of-way. The final vacation approval need not occur at the time the City approves the terms of the property right transfer via execution of the DDA or Ground Lease. Rather, the final closing must be contingent on the final vacation of the right-of-way.

The City Council must approve entitlements.

Reasons for Recommendation and Available Options
The Mary Avenue parcel has been contemplated as a housing site that would target the IDD and low-income populations since the City Council FY 2020 -21 Work program. The City of Cupertino’s 2023-2032 Housing Element rezoned this site to R4, with a minimum density of 50 dwelling units per acre and a maximum density of 65 dwelling units per acre, or 40 dwelling units of realistic capacity. HCD approved the site as one in which all 40 units would be lower income units, consistent with what is proposed by Charities Housing. Further, the Housing Element provides the following Policies and Strategies that support the development of housing opportunities and partnerships with non-profits dedicated to persons with special needs:
 POLICY HE-2.3: Development of Affordable Housing and Housing for Persons with Special Needs.
 STRATEGY HE-2.3.1: Support Affordable Housing Development  STRATEGY HE-2.3.10: Extremely Low-income Housing
 STRATEGY HE-2.3.11: Assistance For Persons with Developmental Disabilities Based on the above and on the direction provided to staff since 2021, it is recommended that the City Council move forward with Project approvals and that the City Council appoint negotiators to facilitate the property transfer to Charities Housing, in either the form of a DDA including a sale with the right to repurchase or a Ground Lease.

Sustainability Impact
No sustainability impact.

Fiscal Impact
On April 15, 2025, the City Council authorized an allocation of $4,083,250 of cash assistance to the Project. The allocation is comprised of $3 million of funds from the City’s BMR Affordable Housing Fund, $908,683 of PLHA funds, and $174,567.37 of CDBG fu nds to be used for public infrastructure improvements. These three allocations will provide a total of $4,083,250 in cash assistance to the Project. Costs associated with this work program item are budgeted in the BMR Housing Fund 265-72-71 750-052.

City Work Program (CWP) Item/Description
Preserve existing and develop new BMR/ELI Housing: Explore opportunities to preserve existing expiring BMR housing. Develop ELI (Extremely Low Income) and BMR housing units for Developmentally Disabled individuals (IDD) on City-owned property as well as the County - owned sites.
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10 Council Goal:

Housing, Quality of Life
California Environmental Quality Act
The study session is not considered a project under CEQA. _____________________________________
Prepared by: Michelle Hernandez, Interim Deputy City Attorney Gian Martire, Senior Planner
Reviewed by: Chad Mosley, Director of Public Works
Benjamin Fu, Director of Community Development
Floy Andrews, Interim City Attorney
Approved for Submission by: Tina Kapoor, City Manager

Attachments:

A – Staff Report dated March 15, 2022
B – Parcel Map recorded on May 2, 2023
C – Staff Report dated February 6, 2024
D – Exclusive Negotiating Agreement executed on April 9, 2024 E – Staff Report dated September 4, 2024
F – Staff Report dated April 15, 2025
G – Staff Report dated July 15, 2025
H - Existing Conditions and Demolition Plan
I – Mary Avenue Project FAQ

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CITY COUNCIL STAFF REPORT
Meeting: March 15, 2022
Subject
Progress on FY 2021-2022 Council Work Program item to develop ELI and BMR housing units for Developmentally Disabled individuals on City -owned property along Mary Avenue.

Recommended Action
Provide direction to staff on next steps related to potential future development options.

Discussion
Background
Starting with the Fiscal Year (FY) 2019 -20 City Council Work Program, the City has included a project item to engage with philanthropic organizations to find a way to facilitate the construction of Extremely Low Income (ELI) housing units for the Developmentally Disabled populations within the City. Specifically, the objective had been to explore the possibility of building 6 -8 affordable ownership townhomes for this population. During, the FY 2021 -2022 City Work Program update, the project objective evolved to analyze the feasibility of developing housing for this target population on City owned property within the public right-of-way along Mary Avenue.

Analysis
Current Setting
The property being considered is along the westerly edge of the Mary Avenue right-of- way. Highway 85 is to the west, the Mary Avenue Dog Park to the north, Glen Brook Apartments to the east, and the future Westport Development (former Oaks Shopping Center) to the south. The width of an existing landscape buffer, betwe en the soundwall 110
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March 15, 2022 FY 2021-2022 City Work Program: ELI Housing Mary Avenue Page 2

along Highway 85 and the Mary Avenue pavement
is approximately 15 feet , with 93 perpendicular
parking spaces along westerly edge of Mary
Avenue.

As the property is within the Mary Avenue right -
of-way, the General Plan Land Use and Zoning
designation is ‘Transportation’. Please refer to
Figure 1 for a site setting, as well as Attachment B
for the Topographic Survey which has mapped out
the existing conditions.

Proposed Parcel
Public Works staff had commissioned and
completed a Draft Parcel Map (Attachment C). The
new parcel, which is identified as ‘Parcel 1’ on the
Draft Parcel Map, has prepared parcel dimensions
for use in the housing project while also ensuring
adequate right of way to provide multi -modal
travel and parking along one side of Mary Avenue.

The resulting parcel area and approximate
dimensions as indicated in Table 1 below.

Table 1 Proposed Parcel
Approximate Length 860 feet
Approximate Width1 38 feet
Square Feet/Acreage 34,468 square feet/0.79 acres
The Mary Avenue right -of-way would have a resulting width of 56 feet with one -lane vehicle lanes and bicycle lanes in each direction, sidewalks on both sides of the street as well as parallel parking on the west side of the roadway. Parking would be eliminated

1 The distance between the Highway 85 sound wall and the western property line is 6.5 feet. This 6.5 feet is part of the Highway 85 right of way.

Figure 1 Satellite image of the proposed
parcel area.
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March 15, 2022 FY 2021-2022 City Work Program: ELI Housing Mary Avenue Page 3

along the eastern edge of the road. Figure 2 below shows the parcel and right of way dimensions.

Figure 2 Proposed Parcel (Draft Parcel Map)
Process for Disposition and Development of Surplus Land and Other Options The State of California defines “surplus land” as “land owned in fee simple by any local agency for which the local agency’ s governing body takes formal action in a regular public meeting declaring that the land is surplus and is not necessary for the agency’s use.” (Gov. Code, § 54221(b)(1).) The Surplus Land Act imposes procedural requirements of the disposition of surplus land by local agencies. However, property may be declared “exempt surplus land” and disposed of through a competitive bidding process, without complying with other requirements of the Surplus Land Act if the land will be used for certain affordable housing purposes. Eligible affordable housing uses include “[a] housing development . . . that restricts 100 percent of the residential units to persons and families of low or moderate income, with at least 75 percent of the residential units restricted to lower income households . . . for a minimum of 55 years for rental housing.” (Gov. Code, § 54221(f)(1)(F)(i).) The local agency must invite any local public entity within whose jurisdiction the surplus land is located and housing sponsors that have notified the State Department of Housing and Community Development of their interest in the surplus land to participate in the bidding process. (Ibid.) As the project is envisioned by City Council to be 100 percent affordable to very low - income households, would include a rental -rate restricted for at least 55 years, and the project developer would be selected through an RFQ/RFP process, the disposition of the property would meet the criteria for “exempt surplus land” if the notice requirements of the Surplus Land Act are followed. If Council wishes to move forward with the 112
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March 15, 2022 FY 2021-2022 City Work Program: ELI Housing Mary Avenue Page 4

disposition of the property for the proposed ELI housing use, staff recommends that the City take the following steps:
 Circulate an RFQ/RFP for qualified housing developers in accordance with the State’s Surplus Land Act.
 Following the selection of a qualified housing developer, initiate concurrently the following processes:
o Parcel map for the division of the Mary Avenue right-of-way. o General Plan and Zoning Map amendments.
o Any necessary CEQA evaluation.
o Associated Planning entitlements that may include a Development Permit, Use Permit, and/or Architectural Site Approval.
o A City Council declaration that the site is exempt surplus land.

City Council will also need to provide direction as to the whether the city will dispose of the parcel through a sale to a qualified developer or enter into a lease agreement.

Sustainability Impact
No sustainability impacts.

Fiscal Impact
The Mary Ave. parcel for ELI/Developmental Disability Housing Council work program item was originally adopted in Fiscal Year 2019 -20 (FY20) at $150,000 (page 360 of FY20 Final Budget) in the Housing Services, BMR Affordable Housing budget as a special project (265-72-711 750-052). Those funds remained unspent and unencumbered for FY20 and FY21 and were carried over in both years. As part of the FY22 Final adopted budget (page 429) an additional $100,000 was allocated bringing total funding to date to $250,000.

To date a total of $12,540 has been spent or encumbered.

Next Steps
Upon direction from City Council, an RFP/RFQ process would be initiated for qualified affordable housing developers.

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Piu Ghosh, Planning Manager
Benjamin Fu, Director of Community Development
Christopher Jensen, City Attorney
Approved for Submission: Dianne Thompson, Assistant City Manager 113
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March 15, 2022 FY 2021-2022 City Work Program: ELI Housing Mary Avenue Page 5

Attachments:

A – FY 2021-2022 City Work Program
B - Topographic Survey – Existing Conditions
C – Draft Parcel Map
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CITY COUNCIL STAFF REPORT
Meeting: February 6, 2024

Subject
Exclusive Negotiation Agreement (ENA) with an affordable housing developer on a City owned parcel within the Mary Avenue right-of-way (APN: 326-27-053)

Recommended Action
Consider the Draft Agreement attached (Attachment A) and decide whether to enter into the Agreement.

Reasons for Recommendation
Background:

Since Fiscal Year (FY) 2020 -21, the City of Cupertino’s City Work program prioritized engaging with philanthropic organizations to develop extremely low -income housing (ELI) for the intellectually and developmentally disabled (IDD) community. The FY 2021- 22 City Work Program narrowed down this item to excess City -owned property within the Mary Avenue right-of-way (the “Project Site”).

On August 18, 2022, t he City of Cupertino issued a request for proposals (RFP) from qualified and experienced housing developers interested in developing an affordable housing project on a city-owned surplus property of approximately .79 acres. A Site Map of the Project, as well as a Vicinity Map, is provided as Figure 1. This RFP was a solicitation of competitive proposals to develop 100% affordable housing with a preference for the intellectually and developmentally disabled (IDD) populations. By the October 18, 2022, deadline, one developer had submitted a proposal.

Staff recommends entering into an Exclusive Negotiation Agreement (“ENA”) with the nonprofit public benefit corporations Cupertino Rotary Housing Corporation, Housing Choices Coalition for Persons with Developmental Disabilities, Inc., and Charities Housing Development Corporation of Santa Clara County (collectively, the “Developer”) to negotiate the terms of a ground lease at the City-owned properties located at APN: 326- 27-053.

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Analysis

As part of the RFP process, respondents were requi red to demonstrate relevant experience, financial capabilities and conceptual development, financing and operations plans. The submittal requirements included the following:
 Statement of Interest
 Applicant Qualifications
 Project Description
 Financial Terms
 Other items, including, but not limited to, an outreach plan and proposed tenant selection plan.

The Developer Proposal
The Developer team consists of registered California non-profits focused on affordable housing development , both locally and regionally. Highlights of the Developer team include the following:
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 Charities Housing:

A San Jose-based nonprofit 501(c) (3) public benefit corporation that for decades has developed, owned, and managed housing in Santa Clara County for extremely low and v ery low -income individuals, families, senior and folks with special needs, totaling over 1,400 units. In 2017, the City of Cupertino approved Charities Housing’s proposal for the Veranda, an affordable senior housing development on Stevens Creek Blvd that opened in 2019.
 The Cupertino Rotary Housing Corporation:

A Cupertino-based nonprofit 501(c) (3) public benefit corporation established for the purpose of developing low-income housing in Cupertino.  Housing Choices Coalition for Persons with Developmental Disabilities:

Housing Choices is a San Jose -based nonprofit 501 (c) (3) public benefit corporation that supports people with developmental and other disabilities with finding and retaining affordable housing in their community. Currently, they provide housing stability services at 18 different multi-family affordable housing properties, with nearly 300 units set -aside for households that include a person with a developmental or other disability . Housing Choices has additional commitments for another 364 rental units set-aside for people with developmental and other disabilities at 23 new affordable housing projects in differing stages of development.

The proposal envisions a 100% affordable, 40-unit, two-story, apartment development.

The individual apartments will be a mix of studio, one-, and two-bedroom units with one three-bedroom staff unit. The proposal is structured as a Special Needs project, using the Tax Credit criteria, which requires a minimum of 45% (18 units) to be reserved for a special needs population, in this case, IDD.

The remaining 21 apartments will serve extremely low and very low-income residents of the community. The affordability levels of the proposed units will range from 30% to 50% of the Area Median Income (AMI). The exact affordability mix by unit type is still to be determined, but the average affordability level for the entire development will not exceed 40% AMI. The applicant team has partnered with local architect Peter Ko of KO Architects.

If the ENA is approved by City Council, conceptual plans and drawings would be presented to the public for community input at future public meetings, which will further inform project design and scope as well as the necessary steps for environmental review.

Staff will continue to report the status of the proposal to City Council with updates as appropriate.

Exclusive Negotiation Agreement (“ENA”) Terms
The ENA establishes a one-year negotiation period between the City and the Developer.

While in effect, the City shall not negotiate with any other entity for the sale, lease, or development of the site. The Developer will hold public outreach meetings in coordination with the City, develop the scope, and present plans to the City for review 119
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and approval. Both parties will work to develop the terms of a ground lease, disposition and development agreement (DDA), affordability covenants, and related documents. The City may terminate the ENA if the developer does not comply with or perform any provisions of this Agreement, or if progress is not being made in negotiations as determined by the City in good faith, but otherwise in the City’s sole and absolute discretion. The agreement authorizes the City Manager to extend the ENA period if it is determined that the Developer has met all its obligations pursuant to this Agreement and that the parties are making sufficient progress toward the negotiation of a mutually acceptable Disposition and Development Agreement and Ground Lease. A draft Term Sheet (Attachment B) has also been provided for City Council’s review.

Sustainability Impact
No sustainability impact.

Fiscal Impact
As stated in the Developer conceptual proposal, the City is proposed to contribute approximately $5 million in funding. However, this amount is subject to available funds in the City’s Below Market Rate fund, as well as the final scope of the project at the conclusion of the ENA period including commitments from the various funding sources, which could substantially decrease (or alternately increase) as a result. In addition to funding, the City may be asked to waive certain permitting and plan review fees. Such terms will be evaluated and negotiated during the ENA period and will be subject to City Council review and approval.

Finally, the City would contribute land for a nominal fee or limited ground lease payments over a 99-year ground lease term, which is common for 100% a ffordable projects.

The Mary Ave. parcel for ELI/Developmental Disability Housing Council work program item was originally adopted in Fiscal Year 2019 -20 (FY20) at $150,000 (page 360 of FY20 Final Budget) in the Housing Services, BMR Affordable Housing b udget as a special project (265-72-711 750-052). Those funds remained unspent and unencumbered for FY20 and FY21 and were carried over in both years. As part of the FY22 Final adopted budget (page 429) an additional $100,000 was allocated bringing total funding to date to $250,000.

This amount has been set aside to cover predevelopment costs such as creation of the new parcel and recording the map. To date a total of $14,703.62 has been spent or encumbered for Parcel Map and Legal Review.

California Environmental Quality Act
The execution of this agreement is not considered a project under CEQA.

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_____________________________________

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Benjamin Fu, Director of Community Development Approved for Submission by: Matt Morley, Assistant City Manager Christophe Jensen, City Attorney

Attachments:

A - Draft Exclusive Negotiation Agreement
B - Draft Term Sheet

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1 EXCLUSIVENEGOTIATINGAGREEMENT
Mary Avenue
THIS EXCLUSIVE NEGOTIATING AGREEMENT ("Agreement") is enteredinto as of thedatethis Agreementis executed, asshownonthesignaturepagehereof (the "Effective Date"), betweentheCity of Cupertino, aGeneralLawCity ("City"), andthefollowing California nonprofitpublicbenefitcorporations: CupertinoRotaryHousingCorporation, Housing ChoicesCoalitionfor Personswith DevelopmentalDisabilities, Inc., andCharitiesHousing DevelopmentCorporationof SantaClaraCounty (collectively, the “Developer” andtogether with theCity, the “Parties”) on thebasisof thefollowing purposes, intentions, andfacts:

RECITALS
A. TheCity is theownerof thatcertainpropertylocatedat APN 326-27-053, Cupertino, California (the "Property"). TheCity hasdeterminedthatthePropertycanbeusedto providehousingaffordableto extremelylow andvery low-incomepersonsandfamiliesearning 30%- 50% of AreaMedianIncome.

B. TheCity issuedaRequestfor Proposals ("RFP") for qualifieddevelopersto leasefrom theCity thePropertyin accordancewith thetermsof a long-termgroundlease, with atermof at least99 years, andto developandoperateonthePropertythemostaffordable housingunitspossible, in themostexpedientmanner.

C. TheDevelopersubmittedaproposalto leaseanddevelopthePropertydated October18, 2022 (the "Proposal"), acopyof whichis onfile with theCity. TheProposal includesthedevelopmentof 40unitsof housingof which 100% is proposedto beaffordableto personsandfamiliesearning30%- 50% of AreaMedianIncome, with 45% of theunitsintended for theintellectuallyanddevelopmentallydisabled (“IDD”) population (the "Project").

D. On thebasisof theProposal, theCity hasselectedtheDeveloperastheentity with whichto negotiatea mutuallyacceptableLeaseDispositionandDevelopmentAgreement LDDA") which will include, butnot belimited to, termsandconditionson (i) theleaseof the Propertyfrom theCity to theDeveloper; (ii) theDeveloper's developmentof theProjectonthe Property; and (iii) affordabilityandoccupancyrestrictionsthatwill applyto theProject. The LDDA will includeasanexhibita groundlease ("GroundLease") to beenteredinto by the Partiesin accordancewith thetermsof theLDDA.

E. Thepurposeof this Agreementis to establishproceduresandstandardsfor the negotiationby theCity andtheDeveloperof theLDDA andtheGroundLease. As morefully setforth in Section3.1, thepartiesacknowledgeandagreethatthis Agreementin itself doesnot granttheDevelopertheright to acquiretheProperty, nordoesit obligatetheDeveloper 122
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2 to anyactivitiesor coststo acquiretheProperty, otherthantheactivitiesandcostsreasonably necessaryto dischargetheDeveloper'sobligationsunderthisAgreementincludingtheobligation to negotiatein goodfaith ascontemplatedby this Agreement.

NOW, THEREFORE, THE CITY AND THE DEVELOPERHEREBYAGREEAS FOLLOWS:

ARTICLE 1

EXCLUSIVENEGOTIATIONS
Section1.1 GoodFaithNegotiations. TheCity andtheDeveloper, acknowledging thattimeis of theessence, agreefor theNegotiationPeriodsetforth in Section1.2to negotiate diligently andin goodfaith to prepareandexecuteaLDDA, includinga form of GroundLease, in themannersetforth in this Agreement. Forpurposesof this Agreementalackof diligent, goodfaith negotiationson thepartof theDeveloperwill includetheDeveloper's failureto meet thePerformanceBenchmarkssetforth in thePerformanceSchedule, subjectto forcemajeure delays.

TheLDDA andGroundLeaseshallcontaintermsacceptableto theCity andthe Developer, in therespectiveexerciseby eachof its solediscretion. TheLDDA shallinclude, withoutlimitation, theconditionsprecedentto theCity andtheDeveloperenteringinto the GroundLease, physicalandlandtitle conditionsof thePropertyat theconveyanceof the leaseholdinterest, includingenvironmentalconditions, theproposeddevelopmentschedulefor theProjectandothermattersthatmaybeidentifiedby eitherpartyduringthecourseof completingthenegotiationsof theLDDA. TheGroundLeaseshallinclude, withoutlimitation, thetermof theGroundLease, thegroundrentandanyongoingobligationswith regardsto the developmentandoperationof theProperty. TheRFPandtheProposalshallserveastheguidein thenegotiationof theLDDA andtheGroundLease, althoughthepartiesrecognizethatreviewof additionalinformationandfurtherdiscussionmayleadto refinementof theissuesandconcepts setforth in theRFPandtheProposal. Prior to thenegotiationof theLDDA andtheGround Lease, theCity andtheDevelopershallnegotiatea non-bindingtermsheet ("TermSheet") settingforth theprincipaltermsto beincludedin theLDDA andtheGroundLeaseasmorefully describedbelow. DuringtheNegotiationPeriod, theCity will negotiatesolelywith the Developerwith respectto leaseanddevelopmentof theProperty.

Section1.2 NegotiationPeriod. Thenegotiatingperiod (the "NegotiationPeriod") shallcommenceontheEffectiveDateandshallexpireone (1) yearthereafter. TheCity Managermay, in hersolediscretion, agreeto extendtheNegotiationPeriodif theCity Manager determinesthattheDeveloperhasmetall of its obligationspursuantto thisAgreementandthat thePartiesaremakingsufficientprogresstowardthenegotiationof amutuallyacceptableLDDA andGroundLease. An extensionshallbeeffectiveonly if evidencedby anamendmentexecuted by authorizedrepresentativesof theCity andtheDeveloper. 123
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3 TheDeveloperacknowledgesthattimeis of theessenceto theCity in negotiationof a LDDA andtheGroundLease. Accordingly, it is essentialto theCity thatthepartiesnegotiatein goodfaith and, if thepartiesdo notsucceedin timely negotiatinga TermSheet, LDDA and GroundLease, thatthis Agreementexpireasspecifiedherein.

Section1.3 Identityof Developer. Thelegalstatusof theDeveloper, its office address, anddesignatedrepresentativesto negotiatetheLDDA andGroundLeaseareassetforth in Exhibit B attachedto this Agreementandincorporatedhereinby this reference.

ARTICLE 2

NEGOTIATIONPROCESSAND RESPONSIBILITIES
Section2.1 GeneralProcess.
a) NegotiationsBasedonProposal. Thenegotiationshereundershallbebasedon a developmentconceptgenerallyassetforth in theRFPandtheProposal. DuringtheNegotiation Period, theDevelopermaycontinueto developtheconceptualdesignandarchitectureof the Project, maycontinueto conductmarketingandfeasibility analysis, andshallperformsuchother tasksasarereasonablynecessaryandappropriateto fulfill its obligationto negotiatein good faith with theCity towardinitially amutuallyacceptableTermSheetandultimatelyanLDDA andGroundLease.
b) Reports, Studies, and RelatedDocuments. The Developershall provide the City with copiesof all reports, studies, analyses, and similar documentsin draft form, but excluding confidential information and communicationswith the Developer's legal counsel, preparedor commissionedby the Developerwith respectto this Agreementand the leaseand developmentof theProperty, promptlyupontheircompletion. TheDevelopershallnotbedeemed to makeany representationto the City regardingthe accuracy, completeness, methodologyor currentstatusof anysuchreports, studiesor analysis, norshalltheDeveloperassumeanyliability with respectto anymatteror informationreferredto or containedin suchreports, norshalltheCity haveanyclaimagainsttheDeveloperor anyconsultantof theDeveloperarisingoutof thecontents of suchreports.

While desiringto preserveits rightswith respectto treatmentof certaininformationona confidentialbasis, theDeveloperacknowledgesthattheCity will needsufficient, detailed informationabouttheproposedleaseanddevelopmentof theProperty (including, without limitation, financialinformation) to makeinformeddecisionsaboutthecontentandapprovalof theLDDA andGroundLease.

TheDeveloperacknowledgesthattheCity is subjectto theCaliforniaPublicRecords Act (" Act"). TheAct generallyprovidesthatwritten documentsretainedby theCity aresubject to disclosureupontherequestof anythird partyexceptfor specificlimited exceptionsprovided for in theAct. TheDeveloperacknowledgesthattheCity will makeinformationregardingthe Project, theProperty, theProposalandthisAgreementavailableto thepublicuponrequestas requiredby theAct. In orderto successfullynegotiatetheLDDA andtheGroundLease, the 124
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4 partiesbelievethattherewill bespecificdocumentsthatmaybesensitiveor containproprietary informationthattheywill wantto exchangein orderto reviewandunderstandthetransaction.

TheDevelopershalldesignateas "Confidential" anyinformationwhich theDeveloperprovides to theCity which theDeveloperdesiresto keepconfidentialanda statementasto why the requestis consistentwith theprovisionsof theAct. TheCity shallnotbeboundby the Developer's designationof recordsas "Confidential" or thereasoningthereforeprovidedby the Developer, exceptascontainedhereinwith respectfor theprocedurefor theDeveloperfiling a reverse-PublicRecordsAct action.

If a requestfor disclosureof anyinformationdesignatedas "Confidential" by the Developeris madeundertheAct, theCity shalltimely notify theDeveloperin writing of the requestto permittheDeveloperatits discretionandsole costto file areverse-PublicRecordsAct action. If theDeveloperdecidesto file a reverse-PublicRecordsAct action, it shallinform the City in writing of this intentionwithin 10daysof thedateof therequestfor disclosureof the specificConfidentialdocumentsthatwill bethesubjectof theaction, andthedateby whichit shallfile theaction. TheCity shallwithholdanysuchConfidentialdocumentsidentifiedby the Developeruntil thedateidentifiedin writing by theDeveloper, anduponthefiling of the Developer’sactionshallcontinueto withholdthoseConfidentialdocumentsuntil afinal decision is madeby theCourtwith respectto disclosure, or theactionis abandoned. If theDeveloper doesnot timely inform theCity of its intentionto file areverse-PublicRecordsAct action, does not file thereverse-PublicRecordsAct actionby thedateindicatedin its writtennoticeto the City, or abandonsthereverse-PublicRecordsAct actionprior to judgment, theCity shallbefree to disclosetheConfidentialdocumentsat issuein accordancewith its obligationsundertheAct, andshallbeheldharmlessfrom anyclaimsfrom theDeveloperregardingsaiddisclosure. If a legalactionis filed againsttheCity seekingto compeldisclosureof anyinformationthatthe Developerhasrequestedremainconfidential, theCity shallgivepromptnoticeof thefiling of suchactionto theDeveloperandtheDevelopershalldefendandindemnifytheCity from all costsandexpensesof suchdefense, includingreasonableattorneys' feesof theCity or attorneys' feesawardedby a courtarisingout of suchactionexceptto theextentliability arisessolelyout of theCity's exerciseof its solediscretionto discloseor notdiscloserecordsand/or theCity’s willful misconduct.
c) QuarterlyReports. TheDevelopershallprepareandsubmitto theCity nolater thanthefirst dayof eachquarterduringtheNegotiationPeriodameaningfulsummaryof activitiesundertakenduringthepreviousquarterto achieveeachPerformanceBenchmarkset forth in thePerformanceScheduleattachedasExhibit C. Thefirst quarterlyreportshallbefor theperiodfrom April 1, 2024to June30, 2024andall subsequentreportswill includethethree monthssincethelastreport.

Section2.3 DeveloperDueDiligence.

DuringtheNegotiationPeriodtheDevelopershallundertakesuchduediligenceasis necessaryto determinethesuitability of thePropertyfor theProjectassetforth belowandwithin thetimessetforth in thePerformanceScheduleattachedasExhibit C:
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5 a) DueDiligence. DuringtheNegotiationPeriodandwithin thetime setforth in the PerformanceSchedule, theDevelopershallconductduediligenceactivitiesit deemsnecessaryto providetheDeveloperwith sufficientinformationto determinethefeasibility of developinga Projecton theProperty. TheDeveloper's duediligenceactivitiesmayincludebut arenotlimited to aphysicalsurveyof theProperty. TheCity shallprovidetheDeveloperall requested informationregardingthePropertyin theCity's possessionin a timely fashion. TheDeveloper shallberesponsiblefor thecostsof all suchstudies, surveysandinvestigations. If theDeveloper fails to providenoticeto theCity thatit is infeasibleto developtheProjecton thePropertyor thatthePropertyis physicallyinadequatefor thedevelopmentof theProjectby thedatesetforth in thePerformanceSchedule, this conditionshallbedeemedsatisfiedandthis Agreementwill remainin effect.

Developeracknowledgesandrecognizesthatregardlessof theresultsof Developer's investigationsof theProperty, thePropertywill beleasedto theDeveloper "As Is, WhereIs, And With All Faults."
b) Title AdequacyDetermination. TheCity hasprovidedtheDeveloperwith a PreliminaryTitle ReportdatedMarch15, 2024, OrderNo. 2276956 (the “Title Report”) on the Property. If theDeveloperobjectsto anyexceptionappearingon theTitle Reportor shouldany title exceptionariseafterthedateof theTitle Report, theDevelopermayobjectto such exception, providedsuchobjectionis madeto theCity in writing onor before5 P.M. on the thirtieth (30th) dayfollowing theEffectiveDate, or if theexceptionis a newexceptionarising afterthedateof theTitle Report, within fifteen (15) daysof receiptof noticeof suchnew exception. If theDeveloperobjectsto anyexceptionto title, theCity, within fifteen (15) daysof receiptof the Developer’sobjectionshallnotify theDeveloperin writing whethertheCity electsto (i) causetheexceptionto beremovedof record, (ii) obtainacommitmentfrom thetitle companyfor anappropriateendorsementto thepolicy of title insuranceto beissuedto the Developer, insuringagainsttheobjectionableexception, or (iii) terminatethis Agreementunlessthe Developerelectsto taketitle subjectto suchexception. If theCity fails to respondto the Developer, suchfailureshallconstitutetheCity’s electionto terminatethis Agreementunlessthe Developeraffirmatively electsto taketitle subjectto suchexception. If theCity's electsnotto removeanyexceptionobjectedto by theDeveloper, theDevelopermay, within fifteen (15) days of receiptof theCity'snotice, electto terminatethis Agreement. If anyPartyelectsto terminate this Agreementpursuantto this Section2.3(b), noPartyshallthereafterhaveanyobligationsto or rightsagainsttheothershereunder. If theDeveloperfails to provideanynotificationto the City regardingthis matterprior to expirationof thetimeperiodsetforth herein, theconditionset forth in this Section2.3(b) shallbedeemedsatisfied, this Agreementshallcontinuein effect, andtheconditionof title at closingunderanyexecutedLDDA shallbeassetforth in theTitle Report.

Section2.4 DeveloperObligations.

DuringtheNegotiationPeriod, theDevelopershallberesponsiblefor completingthe following taskswithin thetime setforth in thePerformanceScheduleattachedasExhibit C:
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6 a) CommunityEngagementPlan. Within thetime setforth in thePerformance ScheduletheDevelopershallsubmitto theCity for its approval, acommunityengagementplan CommunityEngagementPlan") thatincludestheDeveloper's proposedplanfor conducting outreachto communitygroupsandstakeholdersin thevicinity of theProjectto educatethe public with respectto theProjectandseekinputfrom thepublic with respectto theProject. The City shallapproveor disapprovetheCommunityEngagementPlanwithin thirty 30) daysof receipt. If theCity disapprovestheCommunityEngagementPlantheCity shall providespecificreasonsfor its disapproval. If theCity disapprovestheCommunity EngagementPlan, theDevelopershallsubmitarevisedCommunityEngagementPlanto the City within thirty (30) daysof suchdisapprovalandthesubmissionandapprovalsperiodsset forth hereinshallcontinueuntil theCity approvestheCommunityEngagementPlan, provided, however, if theCity fails to approvea CommunityEngagementPlanafterthesecond resubmission, theCity may, in its discretion, electto terminatethisAgreement. Oncethe CommunityEngagementPlanis approved, theDevelopershallberesponsiblefor implementing theCommunityEngagementPlanduringtheNegotiationPeriod.
b) FinancingPlan. Within thetimesetforth in thePerformanceSchedule, the Developershallprovideto theCity for its approvala financingplan (“FinancingPlan”) for the proposeddevelopmenton thePropertythatwill includeproposedfinancingfor all components of thedevelopment, identificationof all proposedsourcesof subsidiesfor thehousing affordableto extremelylow andverylow-incomehouseholds, anyproposedpublic financing andananalysisof theproposeddevelopment's competitivenessfor suchsubsidysources. The FinancingPlanshallalsoincludeanoperatingproformaincludingcashflows for all componentsof theProjectandshowingtheDeveloper's proposedgroundrentwith sufficient detailfor theCity to evaluatethegroundrentproposal. TheDevelopershallupdatethe FinancingPlanperiodicallyto reflectchangesto theProjectduringtheentitlementprocess, informationfrom theDeveloper's duediligencereviewof theProperty, theresultsof market studiesandotherinformation. TheCity shallapproveor disapprovetheFinancingPlanwithin thirty (30) daysof receipt. If theCity disapprovestheFinancingPlantheCity shallprovidea detailedexplanationof thereasonsfor suchdisapproval.
c) Entitlements. DuringtheNegotiationPeriodandwithin thetimesetforth in the PerformanceSchedule, theDeveloper, atits solecost, shallberesponsiblefor obtainingall land useentitlementsandothergovernmentalapprovalsfrom theCity andotherentitiesasmaybe necessaryfor theDeveloper's contemplateddevelopmentontheProperty. TheCity shall cooperatewith theDeveloper's effortsto obtainsuchentitlementandshallsignnecessary applicationsor otherconsentsto applications, providedhowever, theCity shallnotbeobligated to incuranycostsassociatedwith suchcooperation.

Priorto submittinganyapplicationsto theCity or othergovernmentalentities, the Developershallsubmitto theCity thedesignandarchitectureof theProject, includingthe conceptualplans, elevations, theexteriordesignandlayoutandanyotherinformationthatthe Developerintendsto submitaspartof its entitlementapplication. In theexerciseof its reasonablediscretion, theCity shallrespondto theDeveloper'swrittenrequestfor approvalof conceptualplanswithin thirty (30) businessdaysof theDeveloper's requestthereforor the 127
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7 itemssubmittedfor approvalshallbedeemedapproved. If theCity disapprovesof theitems submitted, it shallspecificallystatethereasonsfor suchdisapproval. TheDevelopershallnot submitanyapplicationsfor entitlementsuntil theCity hasapprovedtheconceptualplansand applicationmaterials.
d) EnvironmentalDocuments. TheDevelopershallberesponsible, atits sole cost, for preparationof anyenvironmentaldocumentsrequiredundertheCaliforniaEnvironmental Quality Act for (i) City approvalof theLDDA andGroundLeaseand (ii) approvalof the Project. TheCity shalldeterminetheappropriateenvironmentalreviewrequiredfor approvalof theProjectandshallcooperatewith theDeveloperin preparingenvironmentaldocumentsfor whichtheDeveloperis responsible (if any) by supplyingavailabletechnicaldataandother availableinformationconcerningtheProperty. TheDevelopershallbesolelyresponsiblefor all costsassociatedwith preparinganyenvironmentaldocumentsnecessaryfor theCity's approval of theProject, inclusiveof theLDDA andGroundLease. Thedeterminationof theadequacyof theenvironmentalreviewshallbein thesolediscretionof theCity.

2.5 TermSheet. Developershallprovidea draft termsheetconcurrentlywith City Councilconsiderationof this Agreementfor City Councilreview. DuringtheNegotiation Periodandwithin thetimesetforth in thePerformanceSchedule, theDeveloperandtheCity will negotiatetheTermSheetfor theProjectthatis consistentwith theDeveloper'sProposalas suchProposalis refinedin accordancewith this Agreement. TheTermSheetshallincludethe fundamentaltermsthatwill serveasa basisfor thenegotiationof theLDDA andtheGround Lease, including, butnot limited to, thetermof theGroundLease, theproposedgroundrent, the basicelementsof theProject, thecommunitybenefitsto beprovidedby theProjectandaviable financialplanfor theProject. If following goodfaith negotiations, thePartiesfail to agreeon a mutuallyacceptableTermSheet, eitherPartymayterminatethis Agreement, in whicheventno Partyshallthereafterhaveanyobligationsto or rightsagainsttheothershereunder, exceptfor thoseprovisionsthatsurvivetermination.

Notwithstandinganythingto thecontrarycontainedherein, includingexecutionof theLDDA with theform of GroundLeaseattachedthereto, thePartiesacknowledgeandagreethatthe Projectfinancingpartnersmayhaveadditionalcommentsto theGroundLeaseandtheCity and Developershallwork in goodfaith prior to theexecutionof suchGroundLeaseto incorporate anysuchreasonablecomments.

2.6 Right of Entry.

DuringtheNegotiationPeriod, theCity grantsto theDeveloperandtheDeveloper's agentsthe right to enterupontheProperty, subjectto thetermsandconditionsof this Section2.6, for the soleandexclusivepurposeof conductingstudiesandinvestigationsthatwill assistthe Developerin negotiatingaLDDA andGroundLeaseandperformingits obligationshereunder.

TheDevelopershallnotinterferewith anyexistingCity operationsor departmentsoccupying thePropertyduringanyinspectionor investigationof theProperty. TheDevelopershallbe responsiblefor obtaininganypermitsnecessaryfor anystudiesor investigationsto be conducted. Priorto conductinganydestructivetestingor anyenvironmentaltestinginvolving drilling or borings, theDevelopershallprovidetheCity'sAuthorizedRepresentativewith 128
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8 writtennotificationof thescopeof suchtestingfor theCity's AuthorizedRepresentative's approvalin his reasonablediscretion. TheDevelopershallbearall costsof suchstudiesand investigationsandshallberesponsiblefor restoringthePropertyto its originalconditionafter completionof suchstudiesandinvestigations. TheDevelopershallberesponsiblefor repairing anydamageto thePropertycausedby suchinvestigations.

Priorto exerciseof theright of entrygrantedin this Section2.6, theDevelopershall providetheCity with satisfactoryevidence, in theform of a certificateof insurance, thatthe Developer's agentswho obtainaccessto thePropertyareinsuredundercomprehensivegeneral liability andautomobileliability insurancepolicy or policiesterminableonly afterten (10) days' advancewrittennoticeto theCity, eachpolicy to bein anamountof not lessthanTwo Million Dollars ($2,000,000) combinedsinglelimit peroccurrencefor bodily injury andproperty damage. Eachinsurancepolicy shallnametheCity asanadditionalinsuredandshallcontaina waiverof anyright of subrogationagainsttheCity.

TheDevelopershallprotect, indemnifyanddefend (with counselreasonablyacceptable to theCity) andhold harmlesstheCity, andits respectiveCouncilmembers, officers, employees, andagents (collectivelythe "IndemnifiedParties") against, andholdtheIndemnified PartiesandthePropertyharmlessfrom andagainst, anyandall costs, expenses (including, without limitation, reasonableattorneys' fees), damages, claims, liabilities, liens (including, without limitation, mechanicsliens) encumbrancesandchargesarisingout of or in anyway relatedto anyentryby theDeveloperor theDeveloper's agentsupontheProperty, unlesssuch mattersarisefrom thesoleandactivenegligenceor willful misconductof theCity or other IndemnifiedParty. Theforegoingobligationof theDevelopershallsurvivetheexpirationof this Agreement.

Theprovisionsof thisSection2.6 to thecontrarynotwithstanding, theDevelopershall not conductanybiologicalinvestigationsor studiesor anyinvasiveinvestigation, inspection, or test onthePropertywithoutpriorwrittennoticeto theCity'sAuthorizedRepresentativeof theproposed investigation, study, inspectionor test (including, with respectto any hazardoussubstances invasive testing, a written plan for such testing) and the City’s Authorized Representative's approvalthereof, which will not be unreasonablywithheld, conditionedor delayedandwill be deemedgiven if the City's AuthorizedRepresentativehasnot given its approvalor reasonable disapprovalin writing within twenty (20) businessdaysafterreceiptof theDeveloper’s noticeof theproposedinvestigation, study, inspectionor test (andanyrequiredwrittenplan). Additionally, theDevelopershall provideto theCity for theCity’s reviewandapproval (which approvalwill notbeunreasonablywithheld, conditioned, or delayed) copiesof draftsof anyreportspreparedin connectionwith any suchactivities prior to the reportsbecomingfinal and submittedto third parties (including governmentalagencies). The City's failure to disapproveof any draft report within twenty (20) businessdaysof theCity'sreceiptwill conclusivelybedeemedapprovalby the City of thedraftreportin question.

Section2.7 City Cooperation. TheCity shallreasonablycooperatein providingthe Developerwith informationin theCity's possessionrelevantto developmentof theProperty. 129
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9 ARTICLE 3

GENERALPROVISIONS
Section3.1 Limitation on Effectof Agreement. This Agreementshallnotobligate eithertheCity or theDeveloperto enterinto anLDDA or GroundLeaseor to enterinto any otheragreement. By executionof this Agreement, theCity is not committingitself to or agreeingto undertakedispositionof anyproperty. Executionof thisAgreementby theCity is merelyanagreementto conducta periodof exclusivenegotiationsin accordancewith theterms hereof, reservingfor subsequentCity actionthefinal discretionandapprovalregardingthe executionof anLDDA andGroundLeaseandall proceedingsanddecisionsin connection therewith. Any LDDA andGroundLeaseresultingfrom negotiationspursuantto this Agreementshallbecomeeffectiveonly if andaftersuchLDDA andGroundLeasehavebeen consideredandapprovedby theCity Councilfollowing conductof all legally required procedures. No agreementdrafts, actions, deliverablesor communicationsarisingfrom the performanceof this Agreementshallimposeanylegallybindingobligationon eitherPartyto enterinto anLDDA or GroundLease, norshallanysuchdocuments, actionsor communications constituteanyoralor implied agreementby eitherPartyto enterinto anyotheragreement. The Partiesacknowledgethatthefinal form of anyagreementgoverningthedevelopmentof the Propertymaycontainmattersnotcoveredin this Agreement, andtheprovisionshereinarenot intendedto excludeor precludeanyotherissuesthatmayariseduringnegotiations.

Section3.2 Compliancewith CEQA. Without limiting thegeneralityof Section3.1, theDeveloperexpresslyacknowledgesthatanyagreementresultingfrom thenegotiations contemplatedherebyshallbecomeeffectiveonly if theagreementis approvedby theCity Councilfollowing compliancewith all applicablenoticeandhearingrequirementsand compliancewith all otherrequirementsof law, includingwithoutlimitation, therequirements of theCaliforniaEnvironmentalQuality Act (“CEQA”). ThePartiesacknowledgethatthe Projectdescribedin theProposalis preliminaryin natureandshallbedescribedin further detailin theLDDA to benegotiatedduringtheNegotiationPeriod. Withoutlimiting the foregoing, thePartiesacknowledgethattheCity retainsdiscretionto (i) modify theproposed developmentastheCity may, in its discretion, determineto benecessaryto complywith CEQA, (ii) selectotherfeasiblealternativesand/or imposemitigationmeasuresto avoidor minimizesignificantenvironmentalimpacts; (iii) balancethebenefitsof theproposed developmentagainstanysignificantenvironmentalimpactsprior to takingfinal action, if such impactscannototherwisebeavoided; and/or (iv) determinenot to proceedwith theproposed developmentof theProperty.

Section3.3 Notices. Eachnotice, request, demand, instructionor otherdocument requiredor permittedto begivenhereunder ("Notice") shallbein writing andshallbedelivered personally (includingmessengeror courierservicewith evidenceof receipt) or sentby depositingthesamewith theUnitedStatesPostalService, certifiedor registeredmail, return receiptrequested, with properpostageprepaid, addressedto thepartiesattherespective addressessetforth belowandmarkedto thedesignatedindividual's attention. EachNoticeshall beeffectiveuponbeingsodeposited, butthetimeperiodin whicharesponseto anysuchNotice mustbegivenor anyactiontakenwith respecttheretoshallcommenceto runfrom thedateof 130
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10 receiptof theNoticeby theaddresseethereof. Rejectionor otherrefusalby theaddresseeto acceptor theinability of anymessenger, courieror theUnitedStatesPostalServiceto deliver becauseof achangedaddressof whichno Noticewasgivenshallbedeemedto bethereceiptof theNoticesent. Eitherpartyshallhavetheright from timeto time to changetheaddressto which aNoticeto it shallbesentto anotheraddressin thecontinentalUnitedStates (but nota postoffice box) by giving Noticeto theotherpartyof thechangedaddressatleastten (10) days prior to suchchanges.

If to theCity: City of Cupertino
10300TorreAvenue
Cupertino, CA 95014
With copiesto: GianMartire
ChristopherJensen
KirstenSquarcia
PamelaWu
If to theDeveloper: To theaddressspecifiedin Exhibit B
Section3.4 Developer's FinancialCapacity. Prior to theexecutionof theLDDA, Developershallsubmitto theCity evidenceof its ability to financedevelopmentof the Propertypursuantto theProposal. Priorto executionof theLDDA, theCity shallmakea determination, thecostof whichshallbeadvancedby Developer, thatDeveloperhascapacity to financethedevelopmentandcompletetheProject. City shallhavetheright to terminatethis Agreementif Developeris unableto establishits financialcapacityto thesatisfactionof the City. TheDevelopershallmaintainfull disclosureto theCity of its methodsof financingto be usedin thedevelopmentof theProperty, andshallpromptlyadvisetheCity of anymaterial adversechangein theDeveloper's financialstatusor ability to financedevelopmentof the Property.

Section3.5 CostsandExpenses. Eachpartyshallberesponsiblefor its own costsand expensesin connectionwith anyactivitiesandnegotiationsundertakenin connectionwith this Agreement, andtheperformanceof eachparty'sobligationsunderthisAgreement.

Section3.6 DefaultsandRemedies.
a) Default. Failureby eitherpartyto negotiatein goodfaith asprovidedin this Agreementshallconstituteaneventof defaulthereunder. In addition, thefailureof the Developerto meetanyof thePerformanceBenchmarksby thedatesetforth in thePerformance Schedule, subjectto forcemajeuredelays, shallconstituteaDevelopereventof default. The 131
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11 non-defaultingpartyshallgive writtennoticeof a defaultto thedefaultingparty, specifyingthe natureof thedefaultandtherequiredactionto curethedefault. If adefaultremainsuncuredten 10) daysafterreceiptby thedefaultingpartyof suchnotice, thenon-defaultingpartymay exercisetheremediessetforth in subsection (b).
b) Remedies. In theeventof anuncureddefaultby theCity, theDeveloper'ssole remedyshallbeto terminatethis Agreement. Followingsuch, neitherpartyshallhaveany furtherright, remedyor obligationunderthis Agreement; provided, however, thatthe Developer's indemnificationobligationpursuantto Sections2.6and3.5shallsurvivesuch termination.

In theeventof anuncureddefaultby theDeveloper, theCity's soleremedyshallbeto terminatethis Agreement. Followingsuchtermination, neitherpartyshallhaveanyright, remedyor obligationunderthis Agreement; provided, however, thattheDeveloper's indemnificationobligationpursuantto Sections2.6and3.5shallsurvivesuchtermination.

Exceptasexpresslyprovidedabove, neitherpartyshallhaveanyliability to theotherfor damagesor otherwisefor anydefault, norshalleitherpartyhaveanyotherclaimswith respectto performanceunderthis Agreement. Eachpartyspecificallywaivesandreleasesanysuchrights or claimstheymayotherwisehaveatlaw or in equity.

Section3.7 GoverningLaw. ThisAgreementshallbegovernedby andconstruedin accordancewith thelawsof theStateof California.

Section3.8 Assignment. TheDevelopermaynottransferor assignanyor all of its rightsor obligationshereunderexceptwith theprior writtenconsentof theCity, which consentshallbegrantedor withheldin theCity'ssolediscretion, andanysuchattempted transferor assignmentwithout theprior writtenconsentof theCity shallbevoid.

Notwithstandingtheforegoing, Developermayassignits rightshereunderto a limited partnershipwhereoneor moreof theDevelopersarethemanaginggeneralpartner (or the managingmemberof themanaginggeneralpartner) thereof.

Section3.9 No Third PartyBeneficiaries. ThisAgreementis madeandenteredinto solelyfor thebenefitof theCity andtheDeveloperandnootherpersonshallhaveanyright of actionunderor by reasonof this Agreement.

Section3.10 Time. Timeis of theessenceof eachandeveryprovisionof this Agreementin whichtime is a factor.

Section3.11 No Agency, JointVentureor Partnership. TheCity andtheDeveloper herebyrenouncetheexistenceof anyform of agencyrelationship, joint ventureor partnership betweentheCity andtheDeveloperandagreethatnothingcontainedhereinor in anydocument executedin connectionherewithshallbeconstruedascreatinganysuchrelationshipbetween theCity andtheDeveloper.
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12 Section3.12 Interpretationof Agreement. ThisAgreementconstitutestheentire agreementbetweenthepartiesandsupersedesall prior discussions, negotiations, andagreements whetheroral or written, exceptto theextentthattheProposalinformsthenegotiations contemplatedin this Agreement. Any amendmentto this Agreement, includinganoral modificationsupportedby newconsideration, mustbereducedto writing andsignedby both partiesbeforeit will beeffective. Bothpartieshavehadanequalopportunityto participatein the draftingof this Agreement. Theusualconstructionof anagreementasto thedraftingpartyshall not applyto this Agreement.

Section3.13 Waiverof Lis Pendens. It is expresslyunderstoodandagreedby the Partiesthatnolis pendensshallbefiled againstanyportionof thePropertywith respectto this Agreementor anydisputeor actarisingfrom it. ThisSectionshallsurvivetheexpirationor terminationof this Agreement.

Section3.14 Counterparts. ThisAgreementmaybeexecutedin counterparts, eachof which shallbedeemedanoriginalbut all of which togethershallconstituteoneandthesame agreement.

SIGNATURESCONTINUEON THE FOLLOWING PAGE
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13 IN WITNESSWHEREOF, thepartiesheretohaveexecutedthisAgreementasof thedate setoppositetheirsignatures. TheEffectiveDateof this Agreementshallbethedatethis Agreementis signedby theCity.

APPROVEDAS TO FORM:

By:

ChristopherD. Jensen, CupertinoCity Attorney
ATTEST:

City Clerk
Date ________________________
City”
City of Cupertino, abodycorporateandpolitic
andasubdivisionof theState
By: ___________________________
Title: _________________________
Date: _________________________
Developer”
By: ___________________________
Title: _________________________
Date: _________________________
Mark Mikl ( Apr 9, 2024 09: 02 PDT)
Mark Mikl
Executive Director
Apr 9, 2024Directorof Community Development
Apr 9, 2024
Christopher D. Jensen ( Apr 9, 2024 09: 11 PDT)
Christopher D. Jensen
Apr 9, 2024
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14 EXHIBIT A

DESCRIPTION OF PROPERTY

THE LAND REFERREDTO HEREINBELOW IS SITUATED IN THE CITY OF

CUPERTINO, COUNTY OFSANTA CLARA, STATEOFCALIFORNIA, AND IS DESCRIBEDAS FOLLOWS:

All of Parcel1, asshownonthatcertainParcelMapfiled for recordin theOffice of theRecorderof the Countyof SantaClara, Stateof California, onMay 2, 2023, in Book953of Maps, Pages53and54.

REMAINDER OF PAGEINTENTIONALLY LEFT BLANK
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15 EXHIBIT B

DEVELOPERINFORMATION
Name: CharitiesHousingDevelopmentCorporationof SantaClaraCounty LegalStatus: 501(c)(3) Non-Profit
Address: CharitiesHousingDevelopmentCorporationof SantaClaraCounty ATTN: JacobBillitteri
1400ParkmoorAvenue, STE. 190
SanJose, CA 95126
NegotiatingRepresentative(s):

Mark Mikl
KathyRobinson
MarvelAng
JacobBillitteri
Orrin Mahoney (CupertinoRotaryHousingCorporation)
Kiran Rohra (CupertinoRotaryHousingCorporation)

REMAINDER OFPAGEINTENTIONALLY LEFT BLANK
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16 EXHIBIT C

PERFORMANCESCHEDULE
PerformanceBenchmark PerformanceDate

1. DeveloperDueDiligenceActivities (§2.3(a))

2. Developerdeterminestitle adequacy (§2.3(b))

3. DevelopersubmitsCommunityEngagementPlanto theCity for approval (§2.4(a))

4. TheCity approvesor disapprovestheCommunityEngagement Plan (§2.4(a)).

Within 30daysof
submission

5. DevelopersubmitsFinancingPlanto City (§2.4(b))

6. City approvesor disapprovesof theFinancingPlan (§2.4(b)) Within 30daysof submission

7. City ManagerapprovesTermSheet (§2.5)

8. Developershallsubmitconceptplanandentitlement
applicationmaterialsto theCity for its approvalprior to submittingapplicationsfor entitlements (§2.4(c))

9. City shallreviewandapproveof disapprovedesignand
architectureplans (§2.4(c))
Within 30businessdays
of submission

10. Developerobtainsentitlementsandfinal CEQA reviewfor the Project (§2.4(c))
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ExclusiveNegotiatingAgreement (MaryAve) -
Final
Final Audit Report 2024- 04-09
Created: 2024-04-05
By: Robert Dacanay ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAA-hq_sfQ5x81yG5MEmfazyHXX9lXzg0QT ExclusiveNegotiatingAgreement (Mary Ave) - Final" History Documentcreatedby RobertDacanay ([email protected]) 2024-04-05 - 3:34:56 PM GMT- IP address: 73.222.117. 251 Documentemailedto [email protected] approval
2024-04-05 - 3:39:46 PM GMT
Email viewed by [email protected]
2024-04-05 - 5:14:47 PM GMT- IP address: 104.47.73.254
[email protected] signingas MichaelWoo 2024-04-05 - 5:35:10 PM GMT- IP address: 174.160.227.130 Documentapprovedby MichaelWoo ([email protected])
Approval Date: 2024-04-05 - 5:35:12 PM GMT - Time Source: server- IP address: 174. 160.227.130 Documentemailedto MarkMikl ([email protected]) for signature 2024-04-05 - 5:35:13 PM GMT
Emailviewedby MarkMikl ([email protected])
2024-04-07 - 9:31:24 PM GMT- IP address: 104.47.51.126
Documente-signedby MarkMikl ([email protected]) Signature Date: 2024-04-09 - 4:02:24 PM GMT - Time Source: server- IP address: 66.91.33.56 Document emailed to Benjamin Fu ([email protected]) for signature 2024-04-09 - 4:02:25 PM GMT
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CITY COUNCIL STAFF REPORT
Meeting: September 4, 2024

Subject
Review City Work Program funding to develop new ELI (Extremely Low Income) and BMR housing units for Developmentally Disabled individuals (IDD) on City -owned property along Mary Avenue (APN: 326-27-053)

Recommended Action
Receive presentation and authorize staff to utilize the entire remaining budgeted amount (up to $235,000) to evaluate the proposal received for the City-owned property on Mary Ave.

Reasons for Recommendation
Background:

Since Fiscal Year (FY) 2020 -21, the City of Cupertino’s City Work program prioritized engaging with philanthropic organizations to develop extremely low -income housing (ELI) for the intellectually and developmentally disabled (IDD) community. The FY 2021- 22 City Work Program narrowed down this item to excess City -owned property within the Mary Avenue right-of-way (the “Project Site”). A Site Map of the .79-acre Project Site, as well as a Vicinity Map, is provided as Figure 1. The Adopted FY 2024-25 City Work Program continues to include this ongoing project.

On February 6, 2024, the City Council approved an Exclusive Negotiation Agreement (“ENA”) with the nonprofit public benefit corporations Cupertino Rotary Housing Corporation, Housing Choices Coalition for Persons with Developmental Disabilities, Inc., and Charities Housing Development Corporation of Santa Clara County (collectively, the “Developer”) to negotiate the terms of a ground lease at the City-owned properties located at APN: 326-27-053. See Attachment A.

Their proposal envisions a 100% affordable, 40-unit, two-story, apartment development.

The individual apartments will be a mix of studio, one-, and two-bedroom units with one three-bedroom staff unit. The proposal is structured as a Special Needs project which requires a minimum of 45% (18 units) to be reserved for a special needs population, in this 140
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case, IDD. The remaining 21 apartments will s erve extremely low and very low -income residents of the community. The affordability levels of the proposed units will range from 30% to 50% of the Area Median Income (AMI). The exact affordability mix by unit type is still to be determined, but the average affordability level for the entire development will not exceed 40% AMI.

Analysis:

The Mary Avenue parcel for ELI/Developmental Disability Housing Council Work Program item was originally adopted in Fiscal Year 2019-20 (FY20) at $150,000 (page 360 of FY20 Final Budget) in the Housing Services, BMR Affordable Housing budget as a special project (265-72-711 750-052). Those funds remained unspent and unencumbered for FY20 and FY21 and were carried over in both years. As part of the FY22 Final adopted budget (page 429) an additional $100,000 was allocated bringing total funding to date to $250,000. This amount was intended to cover predevelopment costs that include, but not limited, to the following:
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 Creation of the new parcel and recording the map.
 Professional fees, including legal fees.
 Consultant fees to peer review studies and reports submitted to the City, including proforma, budget, and environmental1.
 Staff time to process the disposition of the parcel, as well as development applications.

Approximately $15,000 has been spent on the creation of the new property through the Parcel Map process. The developer is ready to enter the next phase of the project to submit for entitlement review. To ensure the success of this project, staff recommends City Council to utilize the remaining allocated funding to cover for staff and consultant’s time and payments for project review. The estimated cost to finish the entitlement process is $230,000, which includes staff time , consultant peer review of applicant studies, and disposition of the property.

Sustainability Impact
No sustainability impact.

Fiscal Impact
Costs associated with this work program item are budgeted in the BMR Housing Fund 265-72-71 750-052. No additional fiscal impact would incur should the City Council direct the remaining appropriated funds to be utilized for the entitlement review. Should the City Council deny the use of the appropriated funds, the remaining amount would remain in the City’s BMR Affordable Housing fund for future uses.

California Environmental Quality Act
The execution of this agreement is not considered a project under CEQA. _____________________________________

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Benjamin Fu, Director of Community Development Approved for Submission by: Christophe Jensen, City Attorney

Attachments:

A – Signed Exclusive Negotiating Agreement – Mary Avenue

1 As stated in the Developer conceptual proposal, the City is proposed to contribute approximately $5 million in funding. However, this amount is subject to available funds in the City’s Below Market Rate fund.
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CITY COUNCIL STAFF REPORT
April 15, 2025

Subject
Fiscal Year (FY) 2025-26 Community Development Block Grant (CDBG) Program, Below Market Rate Affordable Housing Fund (BMR AHF), General Fund Human Services Grant (HSG), Permanent Local Housing Allocation (PLHA), and County funding allocations.

Recommended Action
Authorize the City Manager to execute the FY 2025-26 CDBG, BMR AHF, General Fund HSG, PLHA, and County funding agreements.

Background
An annual Notice of Funding Availability (NOFA) and Request for Proposals (RFP) (Attachment A) was issued on November 4, 2024, inviting applicants to apply for eligible public services (two-year funding cycle) and capital housing projects (one-year funding cycle) for the upcoming FY 25-26. The NOFA/RFP deadline ended on February 4, 2025. The Housing Commission reviews CDBG, BMR AHF, and General Fund HSG applications and makes funding recommendations to the City Council. BMR AHF and HSG funding amounts for FY 25-26 are subject to City Council approval. CDBG funding amounts will be reduced or increased proportionately for FY 25-26 based on final HUD allocations. On May 11, 2017, the Housing Commission adopted Resolution 17-02 (CDBG Contingency Plan, Attachment B), in the event that the City receives more or less CDBG funding than anticipated from the United States Department of Housing and Urban Development (HUD). Public service funding cycles have been determined by the timeframe in the City’s 2025-2030 Consolidated Plan. The current cycle covered FY 25-26 and 26-27.

The Below Market Rate Affordable Housing Fund (BMR AHF) is a local funding source dedicated to increasing housing affordability within the City of Cupertino. The ten eligible activities for the fund are as follows: BMR Program Administration, Land Acquisition, New Construction, Acquisition and/or rehabilitation of buildings for permanent affordability, Preserving “at -risk” BMR Units, Substantial Rehabilitation, Rental Operating Subsidies, Down Payment Assistance, Direct gap financing, and Fair Housing.

Thus, while awarding funds for the construction of new affordable housing, two activities 143
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which should also be budgeted for are BMR Administration and Fair Housing enforcement. FY 25-26 will be the final year of a four -year contract the City has enacted for BMR administration with Rise Housing. The costs of the contract are approximately $300,000 per year. Fair Housing costs are approximately $50,000 per year. In order to fulfill the City’s commitment to the remainder of the administration contract, and to budget enough reserve funds to cover the costs associated with enacting new administration, fair housing, and other professional contracts until 2030, a minimum of $1,800,000 would need to be maintained as a reserve.

The Permanent Local Housing Allocation (PLHA) fund is an entitlement formula grant awarded by the California State Department of Housing and Community Development (HCD) to cities to increase housing affordability. Since 2021, the City has been part of a consortium to allow the County of Santa Clara to jointly administer PLHA funds on behalf of the City alongside other participating jurisdictions throughout the County, under the condition that the funds be used only for the predevelopment and development of new affordable rental housing. As of 2025, the fund has collected $908,683 which has been committed to the Charities Housing – Mary Ave project for predevelopment costs. The City Council may award funds to affirm the commitment and begin authorizing their use.

A separate action to award funds will be brought to the County Board of Supervisors at a later date.

The County of Santa Clara awarded the City of Cupertino a $50,000 inventory grant in August 2024 to be used for supplementing services and support for residents experiencing homelessness. In 2023, the City received a similar $50,000 grant from the County for services to the unhoused and awarded the funds to the West Valley Community Services for the Haven to Home and Rotating Safe Car Park programs. The 2024 funds have yet to be awarded. Since the PLHA and the County funds were not included in the NOFA, the City Council may award these funds either to applicants that responded to the NOFA or other eligible and qualified nonprofit providers.

Discussion
CDBG Funding
HUD annually allocates CDBG funding to local jurisdictions for community development activities. Cupertino is one of nine entitlement jurisdictions within Santa Clara County.

Jurisdictions typically must have a population of 50,000 or more to qualify as an “entitlement jurisdiction” that receives grant funding directly from HUD rather than through the County. Entitlement grants are largely allocated on a formula basis, based on several objective measures of community needs, including the extent of poverty, population, housing overcrowding, age of housing, and extent of population growth lag in relationship to other metropolitan areas. This is Cupertino’s 21st year as an entitlement jurisdiction receiving a CDBG grant directly from HUD.

The City anticipates that it will receive approximately $387,000 in FY 25 -26 CDBG entitlement funding. Program income in the amount of $7,944 will also be received and 144
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allocated from existing CDBG loan payoffs. HUD regulations implement maximum percentages that ma y be allocated to CDBG administration and public services. Of the total estimated funding, a maximum of 20% may be used for administrative costs to cover salary and benefits of staff who operate the CDBG program, a maximum of 15% may be used for public services, and the remaining 65% may be used for capital housing projects.

As noted earlier, CDBG funding amounts will be reduced or increased proportionately for FY 25-26 based on final HUD allocations and City Council approval.

FY 25-26 CDBG Budget (est.)
Entitlement Amount (EN) $387,000.00
Program Income (FY 25-26) $7,944.00
Unexpended Funds $22,523.37
Total Revenues $417,467.37
Program Administration (20% EN) $77,400.00
Public Service (15% EN) $58,000.00
Capital/Housing Projects (65% EN + Unexpended Funds) $282,067.37 Total Expenses $417,467.37

HUD regulations require that eligible activities selected for funding must benefit very low and low -income households, or eliminate a blighted area, or address an urgent (emergency) community need, and must also meet a national objective. In addition, only certain types of eligible activities qualify under the CDBG regulations. Examples of eligible activities are:

• Acquisition of Land
• Public improvements
• Public service activities
• Affordable housing developments
• Property acquisition for affordable housing
• Rehabilitation of affordable units

2025-26 CDBG Program Administration Funds
An estimated total of $77,400.00 will be used for CDBG program administration. The City will use these funds for administrative costs to cover the salary and benefits of staff who operate the CDBG program.

2025-26 CDBG Capital Housing Project Funds (One-Year Funding Cycle) An estimated total of $282,067.37 will be available for eligible CDBG capital housing projects. This consists of FY 25-26 funding and unexpended funding from prior years. City staff conducted extensive outreach and the NOFA/RFP was sent to over 250 contacts in the affordable housing community. The City received one application in this cate gory totaling $107,500.00 from Rebuilding Together Silicon Valley. The Housing Commission recommends awarding the excess of funds, or approximately $174,567.37, to the Charities 145
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Housing Mary Ave project. The award is specifically for public infrastructure site work to reconfigure areas currently in the public right away necessary for the development of affordable housing. This includes but is not limited to redevelopment of the sidewalk, street parking spaces, bike lanes, curbs, and gutters. The Mary Ave funding award will be contingent on Charities Housing completing the necessary National Environmental Policy Act (NEPA) environmental review for the project. The contingence will also include the ability of Charities Housing to satisfy the City’s requirement to spend -down funds in accordance with HUD CDBG timeliness guidelines. If at any point in time the City finds it necessary to reallocate the funds, either for an immediate draw -down or because the Mary Ave project is unable to acquire planning entitlements, the City will reserve the right to complete a Substantial Amendment to the FY 25-26 Annual Action Plan and will award the funds to the City Public Works Department for an applicable project. Funding recommendations are listed in the table below.

1 CDBG Capital Housing Projects
FY 25-26 Application Summary Funds
Available
Funding
Requests Funding Award
FY 24-25
Funding
Allocations
a
Rebuilding Together Silicon
Valley- Homeowner Repair and
Rehabilitation Program
$107,500.00 $107,500.00 $96,237.55

b Charities Housing – Mary Ave $174,567.37 $174,567.37 $0 Sub-Total $282,067.37 $282,067.37 $282,067.37 $96,237.55

2025-26 CDBG Public Service Funds (Two-Year Funding Cycle) An estimated total of $58,000 is available to be used for eligible CDBG public service activities: those which benefit low and moderate income households in alignment with a CDBG priority set by the City’s 5 -Year CDBG Consolidated Plan. The City received two applications in this category totaling $109,494.00. Funding was decreased proportionally based on the City’s Contingency Plan. Funding recommendations are listed in the table below.

2 CDBG Public Services
FY 25-26 Application Summary Funds
Available
Funding
Requests Funding Award
FY 24-25
Funding
Allocations
a Live Oak Adult Day Services

$22,000.00 $18,000.00 $9,414.00
b
West Valley Community Services
(WVCS) – Community Access to
Resources and Education
Program (CARE)
$87,494.00 $40,000.00 $17,774.00
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Sub-Total $58,000.00 $109,494.00 $58,000.00 $27,188.00

2025-26 BMR AHF Public Services (Two-Year Funding Cycle) The BMR AHF receives its revenue from the payment of housing mitigation fees from non-residential (commercial, retail, hotel, research and development (R&D) and industrial) and residential development projects. Formal agreements and monitoring are required for this program, but the requirements are less stringent than federal funding. A total of $50,000 is available to be used for eligible BMR AHF public services. The City received one application in this category totaling $50,000.00. Funding recommendations are listed in the table below.

3 BMR AHF Public Services
FY 25-26 Application Summary Funds
Available
Funding
Requests Funding Award
FY 24-25
Funding
Allocations
a Project Sentinel – Fair Housing
Activities
$50,000.00 $50,000.00 $50,000.00
Sub-Total $50,000.00 $50,000.00 $50,000.00 $50,000.00

2025-26 BMR AHF Capital Housing Project Funds (One-Year Funding Cycle) The City estimates up to $4,800,000 will be available to fund eligible BMR AHF projects for FY 25 -26 prior to accounting for administrative and fair housing expenses. In accordance with the staff recommendation, the Housing Commission recommends that a minimum of $1,800,000 be reserved to budget for these other expenses until the year 2030.

Therefore, the City in practice has $3,000,000 to award for affordable housing projects. The City received two applications for FY 25-26 BMR AHF Capital Housing Projects. The first application, Charities Housing – Mary Ave, proposes 40 units, with 19 very low -income units, 20 extremely low -income units, and one manager unit. Within the affordable unit mix, 19 units will be reserved for individuals with intellectual or dev elopmental disabilities. The second application, Eden Housing – Wolf Rd, proposes 249 units built across two phases. The first phase will contain 101 units of mixed -income housing for school district employees, with approximately 34 low income units and 67 moderate income units. The second phase will contain 148 units, with 60 very low-income units, 86 low-income units, and two manager units.

Regardless of funding awards, staff will continue to support both the Mary Ave and Wolf Rd projects through technic al assistance to the developers and supporting applications for additional funding from state and federal sources such as Project Homekey+, Affordable Housing Sustainable Communities (AHSC), Local Housing Trust Fund (LHTF), Section 8 Project Based Vouchers (PBV), and other opportunities as they become available.

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If either project is unable to acquire planning entitlements the City will reserve the right to “uncommit” the funds and return them to the BMR fund balance. If the City receives additional BMR fu nds previously unaccounted for prior to the next NOFA, staff may recommend awarding additional funds at a future Housing Commission meeting using the same applications submitted, if necessary. The Housing Commission recommends that BMR funds, below, be com mitted in the following amounts, with commitments becoming awards, which authorize loan agreement execution, contingent on the developers attaining planning entitlements.

4 BMR AHF Capital Housing Projects
FY 25-26 Application Summary Funds
Available
Funding
Requests
Funding
Commitment
FY 24-25
Funding
Allocations
a Charities Housing – Mary Ave

$4,400,000 $1,916,800.00 $0
b Eden Housing, Inc. – Wolf Rd $4,800,000 $1,083,200.00 $0 Sub-Total $3,000,000 $9,200,000 $3,000,000.00 $0

2025-26 General Fund HSG Public Services (Two-Year Funding Cycle) The General Fund HSG program is funded by the City’s General Fund. Formal agreements and monitoring are required for this program, but the requirements are less stringent than those for federal fund ing. A total of $129,000 is available to be used for eligible General Fund HSG public service activities. The City received three applications in this category totaling $161,380. Funding recommendations are listed in the table below.

5 General Fund HSG Public Services
FY 25-26 Application Summary Funds
Available
Funding
Requests Funding Award
FY 24-25
Funding
Allocations
a
Catholic Charities of Santa Clara
County – Long Term Care
Ombudsman Program

$12,000.00 $11,000.00
$10,000.00
b
Senior Adults Legal Assistance
(SALA) – Legal Assistance to
Cupertino Elders
$19,500.00 $18,000.00 $16,287.55
c West Valley Community Services
– Haven to Home $129,880.00 $100,000.00 $74,034.34
Sub-Total $129,000.00 $161,380.00 $129,000.00 $100,321.89

2021-25 PLHA Affordable Rental Housing Funds (Four-Year Funding Cycle) 148
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The PLHA funding, which is awarded to the City of Cupertino and administered by the County of Santa Clara has accumulated $908,683 to be spent for predevelopment and development of new affordab le rental housing. The Housing Commission considered both applicants for the BMR AHF funds as potential recipients of PLHA funding but recommended that all of the available PLHA funding be awarded to the Mary Ave project, as shown in the table below.

6 PLHA Affordable Housing Projects
FY 25-26 Application Summary Funds
Available
Funding
Requests Funding Award
FY 24-25
Funding
Allocations
a Charities Housing – Mary Ave $908,683.00 $908,683.00 $0 Sub-Total $908,683.00 $908,683.00 $908,683.00 $0

2025-27 County of Santa Clara Funds (Two-Year Funding Cycle) The Santa Clara County funding, which was awarded to the City of Cupertino in the amount of $50,000, is reserved for services that support the unhoused. The Maitri women’s domestic violence shelter did not respond to the NOFA, making them ineligible to receive CDBG or HSG funding. However, the organization continues to have a funding gap of $25,000 per year. The Housing Commission recommends awarding the $50,000 in County funds to Maitri as a tw o-year agreement ($25,000 per year) to cover the funding gap and align their award with the two -year public service grants. The funding recommendation is listed in the table below.

7 Santa Clara County Funding Unhoused Programs
FY 25-27 Application Summary Funds
Available
Funding
Requests Funding Award
FY 24-25
Funding
Allocations
a Maitri $50,000.00 $50,000.00 $24,678.11
Sub-Total $50,000.00 $50,000.00 $50,000.00 $24,678.11

Reasons for Recommendation
The Housing Commission held a public hearing on March 27, 2025, to consider funding applications for the CDBG, BMR AHF, HSG, PLHA, and County funding programs. The Commission recommended approval of the proposed FY 2024-25 funding allocations above.

Sustainability Impact
No sustainability impact.

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Fiscal Impact
CDBG programs and projects are funded by HUD (Federal) grant funds. PLHA programs and projects are funded by HCD (State) grant funds. BMR AHF public services and projects are funded by City housing mitigation fees collected from residential and non-residential development projects. General Fund HSG activities are funded through the City’s General Fund. County funding was received through an inventory grant from District 5 of the Santa Clara County Board of Supervisors. Budget allocations for approved funding allocations will be included for City Council’s approval as part of the proposed and final budget.

City Work Program (CWP) Item/Description
Yes, FY 24-25
Preserve existing and develop new BMR/ELI Housing: Explore opportunities to preserve existing expiring BMR housing. Develop ELI (Extremely Low Income) and BMR housing units for Developmentally disabled individuals (IDD) on City-Owned property as well as the County-owned sites.

Council Goal:

Housing

California Environmental Quality Act
No California Environmental Quality Act impact.

_____________________________________

Prepared by: Nicky Vu, Senior Housing Coordinator
Reviewed by: Benjamin Fu, Director of Community Development Tina Kapoor, Deputy City Manager
Floy Andrews, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A - FY 2025-26 NOFA/RFP
B - Housing Commission Resolution 17-02 (CDBG Contingency Plan) C- PLHA Cupertino County Consortium Agreement Amendment 1 D- FY 2024-25 County of Santa Clara Unhoused Program Funding Agreement E - FY 2025-26 CDBG, BMR AHF, HSG, PLHA, and County Funding Application Summary

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CITY COUNCIL STAFF REPORT
Meeting: July 15, 2025

Subject
Study Session to review an application to develop new ELI (Extremely Low Income) and BMR housing units for Developmentally Disabled individuals (IDD) on City -owned property along Mary Avenue (APN: 326-27-053)

Recommended Action
Conduct study Session on the Mary Avenue project and provide comments to staff and applicant.

Reasons for Recommendation
Background:

Since Fiscal Year (FY) 2020 -21, the City Work Program prioritized engaging with philanthropic organizations to develop extremely low -income housing (ELI) for the intellectually and developmentally disabled (IDD) community. The FY 2021-22 City Work Program narrowed down this item to excess City -owned property within the Mary Avenue right-of-way (the “Project Site”). A Site Map of the .79-acre Project Site, as well as a Vicinity Map, is provided as Figure 1. The Adopted FY 2025-27 City Work Program continues to include this ongoing project.

Their proposal envisions a 100% affordable, forty (40) unit, two -story, apartment development. The individual apartments will be a mix of studio, one-, and two-bedroom units with one three -bedroom staff unit. The proposal is structured as a Special Needs project which requires a minimum of 45% (18 units) to be reserved for a special needs population, in this case, IDD. The remaining twenty -one (21) apart ments will serve extremely low and very low-income residents of the community. The affordability levels of the proposed units will range from 30% to 50% of the Area Median Income (AMI). The exact affordability mix by unit type is still to be determined, but the average affordability level for the entire development will not exceed 40% AMI.

Analysis:
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The 40 units at Mary Avenue Villas will be equally split with 20 units in each building, which are both two stories in height. Each building will include an elevator and a laundry room with one of the buildings containing a community room and office while the other building houses the property manager. The site will include a central parking area providing approximately 22 spaces and will include EV charging options and 2 handicap van accessible spaces. A trash enclosure for each building is included at either end of the parking lot.

Approximately eighty (80) angled street parking spaces along Mary Avenue in front of the project site will be replaced by thirty-three (33) perpendicular spaces. A bike lane and sidewalk will front the project site, as well as landscaping which includes street trees, shrubs, and a variety of water efficient grasses. The Plan Set can be viewed as Attachment A.

Figure 1 Perspective of Building 2 looking south along Mary Avenue.

Next Steps:

On April 3, 2025, Charities Housing applied for the development (ASA -2025-006). As an approved Priority Housing Element Site (HE Site 10) that is under 50 units , this will be approved as an Administrative Review at an Administrative Hearing, exempt from CEQA and subject only to design review based on objective standards. However, City Council will ultimately be the decision -making body approving the lease and disposition agreement with Charities Housing for the development on site.

Sustainability Impact
No sustainability impact.

Fiscal Impact
Costs associated with this work program item are budgeted in the BMR Housing Fund 265-72-71 750-052. No additional fiscal impact would incur should the City Council direct the remaining appropriated funds to be utilized for the entitlement review. Should the City Council deny the use of the appropriated funds, the remaining amount would remain to the City’s BMR Affordable Housing fund for future uses. 152
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On April 15, 2025, the City Council authorized an allocation of $4,083,250 of cash assistance to the Project. The allocation is comprised of $3 million of funds from the City’s BMR Affordable Housing Fund, $908,683 of Permanent Local Housing Allocation (PLHA) funds, and $174,567.37 of CDBG funds to be used for public infrastructure improvements.

These three allocations will provide a total of $4,083,250 of cash assistance to the Project.

City Work Program Item/Description
Preserve existing and develop new BMR/ELI Housing: Explore opportunities to preserve existing expiring BMR housing. Develop ELI (Extremely Low Income) and BMR housing units for Developmentally Disabled individuals (IDD) on City-owned property as well as the County-owned sites.

City Council Goal:

Housing

California Environmental Quality Act
The study session is not considered a project under CEQA. _____________________________________

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Benjamin Fu, Director of Community Development Floy Andrews, Interim City Attorney
Approved for Submission by: Tina Kapoor, Interim City Manager

Attachments:

A – Plan Set

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E
S
E
S
HIGHWAY 85

MARY AVE

GLENBROOK APARTMENTS

MARY AVE DOG PARK
APN 326-27-037
APN 326-27-030
APN 326-27-053

38.0'7.0'
PSE TO
REMAIN

7.0'

PSE TOREMAIN

56.0'
N73°14'26"E

30.04'
N73°14'26"E

28.22'
R=1014.00'
∆=6°59'49"
L=123.83'
R=3000.00'
∆=5°15'35"
L=275.40'
N16°25'54"W 647.26'
N16°25'54"W 586.54'

CALTRANS ROW
PL
CL

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED

EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED

EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED

PROTECT IN PLACE

EXISTING PARKING STALL

EXISTING CONCRETE

TO BE DEMOLISHED EXISTING CONCRETE

TO BE DEMOLISHED

EXISTING CONCRETE

TO REMAIN

EXISTING CONCRETE

TO REMAIN

EXISTING ASPHALT

TO REMAIN

EXISTING ASPHALT

TO REMAIN

EXISTING CURB STOP TO
BE DEMOLISHED (TYP.)

EXISTING CURB STOP TO
BE DEMOLISHED (TYP.)

EXISTING CURB STOP TO
BE DEMOLISHED (TYP.)EXISTING CURB TO

BE DEMOLISHED

EXISTING CURB TO

BE DEMOLISHED

EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED

EXISTING ASPHALT

TO BE DEMOLISHEDEXISTING FIBER

OPTIC BOX TO
REMAIN

EXISTING FENCE

TO REMAIN
EXISTING ELEC. LINES

TO BE RELOCATED

EXISTING SOUNDWALL

TO REMAIN
EXISTING ELEC.

MANHOLE TO REMAIN

APPROXIMATE LOCATION

OF EXISTING WATER LINE

EXISTING SLIDING

GATE TO REMAIN
EXISTING 10" VCP

SS TO REMAIN
EXISTING 10" VCP

SS TO REMAIN

EXISTING AT&T FIBER

OPTIC LINES TO REMAIN
(LOCATION APPROXIMATE)

EXISTING CITY OF

CUPERTINO FIBER OPTIC

LINES TO BE RELOCATED

EXISTING STREET LIGHT
TO REMAIN (TYP.)
HIGHWAY 85

MARY AVE
APN 326-27-053

ARROYO VILLAGE
APN 326-27-042

38.0'

56.0'
N73°34'06"E

17.84'
N73°32'03"E

28.37'R=514.00'∆=10°12'26"
L=91.57'

CALTRANS ROW
PL
CL

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED

EXISTING TRAFFIC STRIPING

TO BE DEMOLISHED EXISTING PARKING STALL

TO REMAIN

EXISTING CURB TO
REMAIN

EXISTING CURB

STOP TO REMAIN EXISTING CONCRETE

TO REMAIN

EXISTING CONCRETE

TO BE DEMOLISHED

EXISTING CONCRETE

TO BE DEMOLISHED

EXISTING CONCRETE

TO REMAINEXISTING CONCRETE

TO REMAIN EXISTING ASPHALT

TO REMAIN

EXISTING ASPHALT

TO REMAIN

EXISTING CURB STOP TO
BE DEMOLISHED (TYP.)EXISTING CURB STOP TO
BE DEMOLISHED (TYP.)

EXISTING CURB STOP TO
BE DEMOLISHED (TYP.)

EXISTING CURB STOP TO

EXISTING CURB TO

BE DEMOLISHED

EXISTING CURB TO

BE DEMOLISHED

EXISTING PARKING STALL
TO BE DEMOLISHED (TYP.)

EXISTING SIGN TO

BE DEMOLISHED

EXISTING WALL TO

BE DEMOLISHED EXISTING UTILITY STRUCTURE

TO BE DEMOLISHED

EXISTING TRAFFIC

STRIPING TO REMAIN

EXISTING MAINTENANCE

BLDG TO REMAIN

APPROXIMATE LOCATION OF
EXISTING 12" SAN JOSE

WATER COMPANY WATER LINE

EXISTING SLIDING

GATE TO REMAIN

EXISTING STREET LIGHT
TO REMAIN (TYP.)

EXISTING FIRE

HYDRANT TO REMAIN
N73°38'11"E

14.23'
E
S
D
Ko Architects, Inc.
900 High Street, Suite 1
Palo Alto, CA 94301
p: 650.853.1908

MARY AVENUE

AFFORDABLE

HOUSING

CITY OF

CUPERTINO

MARY AVENUE

CUPERTINO, CA

PRELIMINARY,

NOT FOR

CONSTRUCTION
NORTH

EXISTING

CONDITIONS &

DEMO PLAN
C000.0
DEMOLITION NOTES:

1. CONTRACTOR TO CLEAR THE SITE WITHIN THE DEMOLITION LIMITS, THE CONTRACTOR

SHALL DEMOLISH AND REMOVE FROM THE SITE ALL CURB, SIDEWALK, PAVEMENT, PLANTERS AND TREE ROOTS. CONTRACTOR TO REMOVE ALL UTILITIES AND APPURTENANCES UNLESS OTHERWISE NOTED.

2. ALL MATERIAL REMOVED FROM THIS SITE SHALL BE DISPOSED OF BY THE CONTRACTOR IN A LEGAL MANNER.

3. REMOVAL OF LANDSCAPING SHALL INCLUDE ROOTS AND ORGANIC MATERIAL.

4. DUST CONTROL MEASURES SHALL BE USED DURING DEMOLITION. CONTRACTOR SHALL PROVIDE A DUST CONTROL AND MITIGATION MEASURES PLAN.

5. CONTRACTOR TO CAP ALL EXISTING WET UTILITIES AT LIMIT OF DEMOLITION UNLESS OTHERWISE NOTED. SEWER LATERALS SHALL BE CAPPED AT THE MAIN. WATER LATERALS SHALL BE REMOVED BACK TO EXISTING METER BOXES.

6. CONTRACTOR SHALL ADJUST THE GRADE OF ANY EXISTING UTILITIES TO REMAIN.

7. THE CONTRACTOR SHALL REFER TO THE DEMOLITION PLAN, TREE PROTECTION PLAN AND ARBORIST REPORT FOR THE DEMOLITION/PRESERVATION OF EXISTING TREES. ALL

TREES NOT SPECIFICALLY SHOWN TO BE PRESERVED OR RELOCATED WITHIN THE LIMITS OF DEMOLITION SHALL BE REMOVED AS PART OF THIS CONTRACT. TREE

PROTECTION FENCING SHALL BE INSTALLED AS NECESSARY PRIOR TO ANY DEMOLITION.

8. REFER TO THE TOPOGRAPHIC SURVEY FOR ADDITIONAL DETAILS OF EXISTING STRUCTURES, ETC., LOCATED WITHIN THE PROJECT SITE. UNLESS OTHERWISE NOTED, ALL EXISTING IMPROVEMENTS MARKED AS "REMOVE" INCLUDING UTILITIES, BUILDINGS,

STRUCTURES, SLABS, CONCRETE, ASPHALT, DEBRIS PILES, SIGNS, AND ALL

APPURTENANCES ARE TO BE REMOVED FROM THE SITE BY THE CONTRACTOR AND PROPERLY DISPOSED OF IN A LEGAL MANNER AS PART OF THIS CONTRACT. SOME

ITEMS TO BE REMOVED MAY NOT BE DEPICTED ON THE TOPOGRAPHIC SURVEY, SUCH

AS UNDERGROUND UTILITIES THAT TIE ABOVEGROUND UTILITY STRUCTURES MARKED AS "REMOVE". REFER TO THE DEMOLITION PLAN FOR THE LIMITS OF REMOVAL OF EXISTING IMPROVEMENTS. IT IS THE CONTRACTOR'S RESPONSIBILITY TO VISIT THE SITE AND DETERMINE THE FULL EXTENT OF THE ITEMS TO BE REMOVED. CONTRACTOR

SHALL VERIFY THAT ALL IMPROVEMENTS BEING REMOVED ARE FULLY CONTAINED

WITHIN THE LIMITS OF DEMOLITION, AND THAT THEY DO NOT SERVE ANY FUNCTION FOR IMPROVEMENTS BEYOND LIMITS OF DEMOLITION. IF ANY ITEMS ARE IN QUESTION, THE CONTRACTOR SHALL CONTACT THE OWNER PRIOR TO REMOVAL OF SAID ITEMS.

9. THE LOCATION OF EXISTING UTILITIES IS APPROXIMATE AND MAY OR MAY NOT BE INCLUSIVE FOR THIS SITE. ANY UTILITIES ENCOUNTERED DURING DEMOLITION THAT

ARE NOT DELINEATED HEREON SHOULD BE BROUGHT TO THE ATTENTION OF THE OWNER AND PROJECT ENGINEER IMMEDIATELY.

10. EXISTING FENCING MAY BE USED AS CONSTRUCTION FENCING ONLY IF APPROVED BY THE ENGINEER. THE CONTRACTOR SHALL SUBMIT A SPECIFIC LAYOUT FOR CONSIDERATION BY THE ENGINEER. IF APPROVED, CONTRACTOR SHALL BE

RESPONSIBLE FOR THE CONDITION OF ANY SUCH FENCE SEGMENT POST CONSTRUCTION.

11. RELOCATION OR REMOVAL OF ELECTRICAL AND GAS UTILITIES SHALL BE COORDINATED WITH PACIFIC GAS AND ELECTRIC COMPANY.

12. DEMOLITION OF SITE ELEMENTS, INCLUDING BUT NOT LIMITED TO, BUILDINGS, LIGHT

POLES, AND BOLLARDS SHALL INCLUDE THE REMOVAL, AND BACKFILL, OF ASSOCIATED FOOTINGS AND FOUNDATIONS.

13. LIMIT OF SITE DEMOLITION SHALL NOT EXTEND OUTSIDE THE EXISTING R/W AND PROPERTY LIMITS.

14. APPLICANT/CONTRACTOR SHALL APPLY FOR AN ENCROACHMENT PERMIT FOR STREET TREE REMOVAL. PRIOR TO REMOVAL, THE OWNER AND/OR THE CONTRACTOR SHALL POST A TREE REMOVAL NOTICE FOR A MINIMUM TWO WEEKS PRIOR TO REMOVAL.

DOCUMENT AND PROVIDE PROOF OF NOTICING TO THE CITY, SUCH AS TIME STAMPED

PHOTOS OF THE NOTICE POSTED TO THE TREES AT THE BEGINNING AND THE END OF TWO WEEK NOTICING PERIOD.

LEGEND

PROPERTY LINE/ CALTRANS ROW

CENTERLINE

EASEMENT

APPROXIMATE CIVIL LIMIT OF WORK

EXISTING ASPHALT TO REMAIN

EXISTING ASPHALT TO BE DEMOLISHED

SEE BELOW FOR CONTINUATION

SEE ABOVE FOR CONTINUATION
SURVEY NOTES:

BASIS OF BEARING:

THE BEARINGS SHOWN HEREON ARE BASED UPON

THE CENTERLINE OF MARY AVENUE, BEING
N89°11'55"W PER PARCEL MAP RECORDED IN BOOK
838 OF MAPS, PAGES 24 & 25, IN THE OFFICE OF THE
COUNTY RECORDER.

BENCHMARK:

NORTHING: 1943739
EASTING: 6110141
ELEVATION: 326.97
BM1071 SCVWD BRASS DISK (R180); ON TOP OF THE

SOUTHERLY CURB OF STEVENS CREEK BOULEVARD
AT APPROXIMATELY 200 FEET WESTERLY OF

PENINSULA/BUBB ROAD AND NEAR RAILROAD
CROSSING POLE #22118. ALSO, 2.5 FEET NORTH OF
THE RAILROAD CROSSING LIGHTS, AND 20 FEET
WEST FROM THE CENTER OF THE TRACKS. CITY OF
CUPERTINO.

SURVEY DATE: AUGUST 02, 2024
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MARY AVENUE PROJECT DEVELOPMENT: FREQUENTLY ASKED QUESTIONS

1. Has the public right-of-way been vacated?
The proposed Project will likely require a vacation of a portion of the public right-of-way.

The Streets and Highways Code (§8300 et seq.) does not establish any specific timing requirements regarding when a non-summary vacation must occur within the broader project or transactional timeline. Accordingly, the City remains within the permissible timeframe to undertake the vacation process and will do so at the appropriate stage.

2. Is the parcel map recorded on May 2, 2023 (P.M. 953-M-53) valid? The parcel map was reviewed and approved through the City’s standard subdivision procedures and was recorded on May 2, 2023. A copy of the recorded map has been provided as part of the materials for the City Council study session scheduled for December 2, 2025.

3. Will the council review this matter or will remaining matters be brought on the consent calendar?
Actions that are purely procedural and do not require substantive policy discussion may be placed on the consent calendar. This is typically determined on a case-by-case basis. If staff or the Council believes that an item warrants additional discussion or has policy implications, it will be scheduled as a regular agenda item rather than on consent.

4. Has the City complied with the Surplus Land Act (“SLA”) Gov. Code §§54220–54234? The SLA does not impose a specific deadline for a local agency to designate property as surplus land or exempt surplus land as long as it is completed prior to disposition of the property. The property at issue qualifies for an exemption under Government Code § 54221(f)(1); therefore, the Notice of Action and related procedures do not apply. Accordingly, the City remains within the permissible timeframe to make the required SLA declaration. The City is proceeding within the framework established by prior City Attorney guidance, which did not include a formal Council resolution declaring the property exempt surplus land at an earlier stage.

This is in line with c ommon municipal practice to make the exempt surplus land determination concurrently with approval of the Disposition and Development Agreement. 155
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