REGULAR MEETING OF THE MILPITAS
CITY COUNCIL
February 21, 2023 Milpitas City Council Agenda Page 1
AG E N D A
TUESDAY, FEBRUARY 21, 2023
CITY COUNCIL CHAMBERS, 455 E CALAVERAS BLVD, MILPITAS, CA 7:00 PM (PUBLIC BUSINESS)
For assistance in the following languages, you may call:
Đối với Việt Nam, gọi 408-586-2400
Para sa Tagalog, tumawag sa 408-586-3051
Para español, llame 408-586-3072
The City Council meeting is held in the City Council Chamber at City Hall, 455 E. Calaveras Blvd., Milpitas and via teleconference/Zoom webinar.
You may watch the Council meeting without providing public comment by accessing it via links here.
Meeting shall be livestreamed - Go to:
Facebook: https://www.facebook.com/CityofMilpitas/
YouTube: https://www.milpitas.gov/youtube
Web Streaming: https://www.milpitas.gov/webstreaming
PUBLIC COMMENT INSTRUCTIONS
Oral public comments may be provided live during the City Council meeting in person or by registering for the zoom meeting in advance. To register you will need to provide an email address (not disclosed) and a name. To minimize technical difficulties, please make sure that you have the latest version of the Zoom Application. Below is the link to register for this meeting only:
https://ci-milpitas-ca-gov.zoom.us/webinar/register/WN_4hHkJ0peQLiaCka6wHf2lA After you register a link will be sent to you to join the City Council meeting in order to give your comments. All Zoom meeting attendees who wish to speak must click on the “raise hand” icon when the Mayor calls for public comments. If participating via phone, dial *9 to use the “raise hand” feature, and when called to speak, dial *6 to unmute your phone. Your phone number will be displayed in the live meeting. The Mayor will call speakers by name to address the City Council.
All comments provided shall be limited to three minutes or less as determined by the Mayor. All members of the public will be limited to one comment per agenda item, and one comment for non-agenda items.
NOTE: If a member of the public wishes to share any presentation materials for C ouncil consideration, they must be submitted to the Clerk’s Office by email to [email protected] by 12:00 p.m. on the day of the meeting. No presentations will be accepted in person in the Council Chambers.
MILPITAS CITY COUNCIL CODE OF CONDUCT
Be respectful and courteous (words, tone, and body language). Model civility.
Avoid surprises.
Praise publicly and criticize privately.
Focus on the issue, not the person.
Refrain from using electronic devices while on the Council dais. Disclose conflicts of interest and affiliations related to agenda items. Separate governing from campaigning.
The Council speaks with one voice after making policy on issues. Respect the line between policy and administration.
Council will hold one another accountable to comply with this Code of Conduct.
1 February 21, 2023 Milpitas City Council Agenda Page 2
CALL MEETING TO ORDER by Mayor and ROLL CALL by City Clerk (7:00 PM) PLEDGE OF ALLEGIANCE (Councilmember Phan)
INVOCATION (Councilmember Lien)
PRESENTATIONS (7:05 PM)
Rare Disease Day (Proclamation)
PUBLIC FORUM (7:10 PM)
Members of the public are invited to speak on any item that does not appear on today’s agenda. Comments will be limited to three minutes or less at the Mayor’s discretion. When called to speak, you are encouraged to state your name for the record.
As an item not listed on the agenda, no action can be taken, however the City Council may instruct the City Manager to place the item on a future meeting agenda.
ANNOUNCEMENT OF CONFLICT OF INTEREST AND CAMPAIGN CONTRIBUTIONS READING OF THE CITY COUNCIL CODE OF CONDUCT (Councilmember Phan)
APPROVAL OF AGENDA
CONSENT CALENDAR (7:15 PM)
Consent calendar items are considered to be routine and will be considered for adoption by one motion. There will be no separate discussion of these items unless a City Councilmember, member of the audience or staff requests the Council to remove an item from (or be added to) the consent calendar. Any person desiring to speak on any item on the consent calendar should ask to have that item removed from the consent calendar.
C1. Receive City Council Calendar of Meetings for February and March 2023 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Receive City Council Calendar of Meetings for February and March 2023.
C2. Approve City Council City Council Regular Meeting Minutes of February 7, 2023, and Special Meeting Minutes of February 2, 2023 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001) Recommendation: Approve City Council Regular Meeting minutes of February 7, 2023, and Special Meeting Minutes of February 2, 2023.
C3. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Receive the list of anticipated agenda items for the next regular City Council meeting.
C4. Receive and Review the List of Agenda Items Requested by City Councilmembers (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Review the list of items that have been requested by City Councilmembers and provide direction to staff as necessary. No substantive discussion about any specific item shall occur and the City Council shall hold all debate about the item until it is scheduled as a full agenda item.
C5. Accept Commissioner Resignation (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001) Recommendation: Accept the resignation of Karen Adams from the Senior Advisory Commission and direct the City Clerk to post the notice of unscheduled vacancy. 2 February 21, 2023 Milpitas City Council Agenda Page 3
C6. Approve Proposed Edits to the City Council Procedures and Protocols Handbook (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3041) Recommendation: Approve proposed edits to the City Council Procedures and Protocols Handbook.
C7. Authorize City Manager’s Response Letter to the December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed” (Staff Contact:
Lauren Lai, Finance Director, 408-586-3111; and Michael Mutalipassi, City Attorney, 408-586- 3040)
Recommendation: Authorize the City Manager to send a letter in response to the December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed” pursuant to Penal Code Section 933.
C8. Adopt a Resolution Approving a Site Development Permit to Develop a New Two-story, Single- family Residence with an Attached Accessory Dwelling Unit, an In-Ground Swimming Pool/Spa, and Associated Site Improvements on a Vacant 4.29-acre Lot Located in the R1-H Single-family Residential Zoning District with a Hillside Combining District at 531 Vista Ridge Drive (Staff Contact: Ned Thomas, Planning Director, 408-586-3273)
Recommendation: Consider the exemption in accordance with CEQA and adopt a resolution approving Site Development Permit No. SD22-0001, subject to the attached conditions of approval.
C9. Authorize the City Manager to execute the Non-Exclusive License Agreement between the City of Milpitas and Crown Castle Fiber LLC, a New York Limited Liability Company, for the installation of Small Cell Facilities on Municipal Facilities (Staff Contact: Roberto Alonzo, Principal Civil Engineer, 408-586-3316)
Recommendation: Authorize the City Manager to execute the Non-Exclusive License Agreement between the City of Milpitas and Crown Castle Fiber LLC, a New York Limited Liability Company, for the installation of Small Cell Facilities on Municipal Facilities and find a CEQA exemption.
C10. Adopt a Resolution Granting Acceptance of Alviso Adobe Renovation. (Phase V – Exhibits), Project No. 5055, Authorizing the City Engineer or Other Appropriate Representative Designated by the City Manager to File a Notice of Completion, and Authorize the City Engineer or Other Appropriate Representative Designated by the City Manager to Issue a Notice of Final Acceptance after the One-Year Warranty (Staff Contact: Michael Silveira, Capital Improvement Program Manager, 408-586-3303)
Recommendation: Adopt a resolution granting acceptance of Alviso Adobe Renovation (Phase V – Exhibits), Project No. 5055; authorizing the City Engineer or other appropriate representative designated by the City Manager to file a Notice of Completion, and authorizing the City Engineer or other appropriate representative designated by the City Manager to issue a Notice of Final Acceptance after the one-year warranty.
C11. FY 2022-23 2nd Quarter Financial Status Report for the Quarter Ended December 31, 2022 (Staff Contact: Lauren Lai, Finance Director, 408-586-3111)
Recommendation: Review the FY 2022-23 Quarterly Financial Status Report for the quarter ended December 31, 2022.
PUBLIC HEARINGS (7:20 PM)
Members of the public may be allotted up to three (3) minutes or less at the Mayor’s discretion, to comment on any public hearing item. Applicants/Appellants and their representatives may be allotted up to a total of ten (10) minutes for opening 3 February 21, 2023 Milpitas City Council Agenda Page 4
statements and up to a total of five (5) minutes maximum for closing statements. Items requested/recommended for continuance are subject to Council’s consent at the meeting.
12. Conduct a Public Hearing and Introduce an Ordinance Amending Title III “Business and Professions” of the Milpitas Municipal Code to add Chapter 9 “Permits for Retailers of Tobacco Products” (Staff Contact: Ned Thomas, Planning Director, 408-586-3273) Recommendation: Continue to Regular Meeting of March 7, 2023.
LEADERSHIP AND SUPPORT SERVICES (7:25 PM)
13. Review Fiscal Year 2022-23 Mid-Year Report, Approve FY2022-23 Mid-year Budget Amendments, Adopt a Resolution Amending Resolution No. 1626, the Classification Plan, to Reclassify Positions, Approve and Adopt the Pay Schedule titled “New Job Classifications/Salary Table (Staff Contact: Lauren Lai, Finance Director, 408-586-3111) Recommendation: (1) Review the FY 2022-23 Mid-Year Report; (2) Approve FY 2022-23 Mid-Year Budget Amendments; and (3) Adopt a resolution amending Resolution No. 1626, the Classification Plan, to reclassify positions, approve and adopt the pay schedule titled “New Job Classifications/Salary Table”, and amend budgeted allocated positions.
14. Receive Report on the American Rescue Plan Act (ARPA) Investment Plan and Provide Direction on Changes, if Any (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586- 3053; and Lauren Lai, Finance Director, 408-586-3111)
Recommendation: Receive report on the American Rescue Plan Act (ARPA) Investment Plan and provide direction on changes, if any.
ANNOUNCEMENTS AND FUTURE AGENDA ITEMS (9:00 PM)
Members of the City Council or City Manager may make brief announcements at this time. Members of the City Council may also suggest future agenda items. For future agenda items, the City Council shall not debate the topic or engage in discussion but shall simply state a “yes” or “no” as whether to move the item forward. If a majority of the City Council agrees to move the item forward, the City Manager shall place the item on a future agenda.
ADJOURNMENT (9:05 PM)
KNOW YOUR RIGHTS UNDER THE OPEN GOVERNMENT ORDINANCE
Government’s duty is to serve the public, reaching its decisions in full view of the public. Commissions and other City agencies exist to conduct the people’s business. This ordinance assures that delib erations are conducted before the people and City operations are open to the people’s review. For more information on your rights under the Open Government Ordinance or to report a violation, contact the City Attorney’s office at Milpitas City Hall, 455 E. Calaveras Blvd., Milpitas, CA 95035 e-mail:[email protected] / Phone: 408-586-3040
The Open Government Ordinance is codified in the Milpitas Municipal Code as Title I Chapter 310 and is available online at the City’s website www.milpitas.gov by selecting the Milpitas Municipal Code link.
Materials related to an item on this agenda submitted to the City Council after initial distribution o f the agenda packet are available for public inspection at the City Clerk’s office at Milpitas City Hall, 3rd floor 455 E. Calaveras Blvd., Milpitas and on City website. City Council agendas and related materials can be viewed online: www.milpitas.gov/government/council/agenda_minutes.asp (select meeting date)
APPLY TO SERVE ON A CITY COMMISSION
Commission application forms are available online at www.milpitas.gov or at Milpitas City Hall.
Contact the City Clerk’s Office at 408-586-3001 for more information.
4 February 21, 2023 Milpitas City Council Agenda Page 5
If you need assistance, per the Americans with Disabilities Act, for any City of Milpitas public mee ting, please call the City Clerk at 408-586-3001 or send an e-mail to [email protected] prior to the meeting. You may request a larger font agenda.
5 Milpitas City Council Calendar
February 2023
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
1 2:00 PM-Santa Clara VTA Monthly
Briefing - Northeast Group (CM)
(Santa Clara)
5:30 PM-Veterans Commission (CM)
7:00 PM-Community Advisory
Commission (AP)
2 5:30 PM-Milpitas Chamber of
Commerce Board (GB/HL)
5:30 PM-Santa Clara VTA Board of
Directors (CM)
3 4
5 6
7:00 PM-Parks, Recreation & Cultural
Resources Commission (HL)
7 7:00 PM-City Council
8 7:00 PM-Silicon Valley Clean Energy
Board of Directors (EC/CM)
(Cupertino)
7:00 PM-Planning Commission
9 4:00 PM-Treatment Plant Advisory
Committee (CM/EC) (San Jose)
4:00 PM-Santa Clara VTA Policy
Advisory Committee (EC/AP)
5:30 PM-Cities Association City
Selection Committee Special Mtg (CM)
{Los Altos Community Center}
6:00 PM-Youth Advisory Commission
(HL)
7:00 PM-Cities Assoc of SCC (CM/EC)
{Los Altos Community Center}
10 11
12 13
6:00 PM-Gateway/Main St. Specific
Plan Community Workshop (Virtual)
14 4:00 PM-HOPE Task Force
15 6:00 PM-Energy and Environmental
Sustainability Commission (EC)
16 3:00 PM-VTA SSTPO Committee
(CM)
17 18
19 20
PRESIDENT’S DAY
CITY HALL CLOSED
21 7:00 PM-City Council
22 5:30 PM-Recycling and Waste
Reduction Commission (AP)
7:00 PM-Planning Commission
23 24
25 26
27 7:00 PM-Science, Technology, and
Innovation Commission (GB)
28 1:30 PM-Senior Advisory Commission
(AP)
5:30 PM CIP Study Session (Senior
Center, Room 140/141)
*Finance Subcommittee will only meet as needed
March 2023
S M T W T F S
1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30 31
January 2023
S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31
6 Item # C1.
Milpitas City Council Calendar
March 2023
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
1 2:00 PM-Santa Clara VTA Monthly
Briefing - Northeast Group (CM)
(Virtual)
2:30 PM-SCC Emergency Operational
Area Council (CM)
5:30 PM-Veterans Commission (CM)
7:00 PM-Community Advisory
Commission (AP)
2 3:00 PM-Ad Hoc Parks, Streets and
Facilities Naming Subcommittee
(CM/EC)
5:30 PM-Santa Clara VTA Board of
Directors (CM)
5:30 PM-Milpitas Chamber of
Commerce Board (GB)
3 9:00 AM-VTA Board of Directors
Workshop (CM)
4 11AM-2PM-
Holi Festival
(Cardoza
Park)
5 6
4:00 PM-City/School Collaborative
Subcommittee (CM/EC)
7:00 PM-Parks, Recreation & Cultural
Resources Commission (HL)
7 6:00 PM-Closed Session
7:00 PM-City Council
8 7:00 PM-Silicon Valley Clean Energy
Board of Directors (EC) (Cupertino)
9 4:00 PM-Santa Clara VTA Policy
Advisory Committee (EC)
4:00 PM-Treatment Plant Advisory
Committee (CM) (San Jose)
6:00 PM-Youth Advisory Commission
(HL)
6:00 PM-Cities Association
Legislative Action Committee (CM)
7:00 PM-Cities Assoc of SCC (CM)
10 11
12 13
4:30 PM-Economic Development and
Trade Commission (CM)
14 4:00 PM-Milpitas HOPE Task Force
15 5:30 PM-Measure F Oversight
Committee
6:00 PM-Energy and Environmental
Sustainability Commission (EC)
16 3:00 PM-VTA Safety, Security, and
Transit Planning and Operations
Committee (CM)
6:30 PM-Bay Area Water Supply
Conservation Agency (CM)
7:00 PM-Public Safety and
Emergency Preparedness Commission
(HL)
17 18
19 20
7:00 PM-Library and Education
Commission (EC) (Milpitas Public
Library)
21 6:00 PM-Closed Session
7:00 PM-City Council
22 7:00 PM-Planning Commission
23 4:00 PM-Silicon Valley Regional
Interoperability Authority (SVRIA)
(GB)
24 25
26 27
7:00 PM-Arts Commission (AP)
28 29
30 31
Cesar Chavez Day
City Hall Closed
*Finance Subcommittee will only meet as needed
February 2023
S M T W T F S
1 2 3
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28
April 2023
S M T W T F S
1 2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30 7
Item # C1.
SPECIAL MEETING OF THE
MILPITAS CITY COUNCIL
February 2, 2023 Milpitas City Council Minutes Page 1
M I NU TE S
THURSDAY, FEBRUARY 2, 2023
CITY COUNCIL CHAMBERS, 455 E CALAVERAS BLVD, MILPITAS, CA
The City Council of the City of Milpitas convened in a Special Meeting of the Milpitas City Council on February 2, 2023, in the City Council Chamber at City Hall, 455 E. Calaveras Blvd., Milpitas, and via teleconference/ Zoom webinar.
CALL MEETING TO ORDER by Mayor and ROLL CALL by City Clerk Mayor Montano called the Special City Council meeting to order at 9:03 AM. Roll Call was taken by City Clerk Guzzetta.
PRESENT: Mayor Montano, Vice Mayor Chua, Councilmembers Barbadillo, Lien, and Phan.
ABSENT: None
PLEDGE OF ALLEGIANCE
Mayor Montano led the Pledge of Allegiance.
PUBLIC FORUM
There were no public speakers.
ANNOUNCEMENT OF CONFLICT OF INTEREST
City Attorney Mutalipassi asked the Mayor and City Councilmembers if they had any personal conflicts of interest. By roll call, there were no conflicts of interest. City Attorney Mutalipassi asked the Mayor and City Councilmembers if they had any reportable campaign contributions. By roll call, there were no reportable campaign contributions.
READING OF THE CITY COUNCIL CODE OF CONDUCT
Mayor Montano read the City Council Code of Conduct.
APPROVAL OF AGENDA
Motion: to approve the February 2, 2023 Special Meeting Agenda
Motion/Second: Vice Mayor Chua / Councilmember Lien
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None
City Attorney Mutalipassi announced the closed session items.
There were no public speakers.
The City Council adjourned to Closed Session at 9:09 AM. 8 Item # C2.
February 2, 2023 Milpitas City Council Minutes Page 2
ADJOURN TO CLOSED SESSION
1. PUBLIC EMPLOYEE APPOINTMENT/HIRING
Pursuant to California Government Code Section 54957
Position: City Manager
The City Council reconvened in open session at 11:48 AM.
CLOSED SESSION ANNOUNCEMENT
Mayor Montano announced the City Council voted not to reappoint City Manager Steve McHarris. The result of the vote was 3-2 with Mayor Montano, Vice Mayor Chua, and Councilmember Barbadillo voting yes, and Councilmembers Lien and Phan voting no.
ADJOURNMENT
Mayor Montano adjourned the meeting at 11:49 AM.
Draft meeting minutes submitted by City Clerk, Suzanne Guzzetta
9 Item # C2.
REGULAR MEETING OF THE MILPITAS
CITY COUNCIL
February 7, 2023 Milpitas City Council Minutes Page 1
M I NU TE S
TUESDAY, FEBRUARY 7, 2023
CITY COUNCIL CHAMBERS, 455 E CALAVERAS BLVD, MILPITAS, CA
The City Council of the City of Milpitas convened in a Regular Meeting of the Milpitas City Council on February 7, 2023, in the City Council Chamber at City Hall, 455 E. Calaveras Blvd., Milpitas, and via teleconference/ Zoom webinar.
CALL MEETING TO ORDER by Mayor and ROLL CALL by City Clerk Mayor Montano called the Regular City Council meeting to order at 7:00 PM. Roll Call was taken by City Clerk Guzzetta.
PRESENT: Mayor Montano, Vice Mayor Chua, Councilmembers Barbadillo, Lien, and Phan (9:24 PM).
ABSENT: None.
PLEDGE OF ALLEGIANCE
Councilmember Barbadillo led the Pledge of Allegiance.
INVOCATION
Councilmember Lien presented the invocation.
PRESENTATIONS
Mayor Montano presented a proclamation in recognition of Black History Month.
PUBLIC FORUM
There were the following public speakers:
1. Charles Wright
2. Stephen Balsbaugh
3. Rob Means
4. Voltaire Montemayor
5. Frank Bush
ANNOUNCEMENT OF CONFLICT OF INTEREST AND CAMPAIGN CONTRIBUTIONS City Attorney Mutalipassi asked the Mayor and City Councilmembers if they had any personal conflicts of interest. By roll call, there were no conflicts of interest. City Attorney Mutalipassi asked the Mayor and City Councilmembers if they had any reportable campaign contributions. By roll call, there were no reportable campaign contributions.
READING OF THE CITY COUNCIL CODE OF CONDUCT
Councilmember Barbadillo read the Code of Conduct.
10 Item # C2.
February 7, 2023 Milpitas City Council Minutes Page 2
APPROVAL OF AGENDA
Motion: to approve the February 7, 2023 Regular Meeting Agenda.
Motion/Second: Vice Mayor Chua / Councilmember Barbadillo Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: Councilmember Phan
CONSENT CALENDAR
Motion: to approve the consent calendar
Motion/Second: Vice Mayor Chua / Councilmember Lien
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: Councilmember Phan
C1. Receive City Council Calendar of Meetings for February 2023 Received City Council Calendar of Meetings for February 2023.
C2. Approve City Council City Council Regular Meeting Minutes of January 17, 2023, and Special Meeting Minutes of January 24, January 26, and January 31, 2023 Approved City Council Regular Meeting minutes of January 17, 2023, and Special Meeting Minutes of January 24, January 26, and January 31, 2023.
C3. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting Received the list of anticipated agenda items for the next regular City Council meeting.
C4. Reconfirm Findings and Determinations Under Resolution No. 9165 and Assembly Bill 361 for the Continuation of Virtual Meetings of the City Council and Legislative Bodies Reconfirmed findings and determinations under Resolution No. 9165 and Assembly Bill 361 for the continuation of virtual meetings of the City Council and Legislative Bodies.
C5. Adopt a Resolution Declaring Weeds on Certain Properties to be a Public Nuisance and Set a Public Hearing for March 7, 2023
Adopted Resolution No. 9215 declaring weeds on specific properties to be public nuisances and set a public hearing for March 7, 2023 and find a CEQA exemption.
C6. Receive a Report on the Local Emergency Related to the Severe Weather Event on January 4-5, 2023
Received a report on the local emergency relating to the severe weather event on January 4-5, 2023.
PUBLIC HEARINGS
7. Adopt a Resolution Approving a Site Development Permit, Conditional Use Permit, Vesting Tentative Map, Density Bonus Permit, Tree Removal Permit, and Environmental Assessment to 11 Item # C2.
February 7, 2023 Milpitas City Council Minutes Page 3
allow the development of 78 townhome condominiums and 12 accessory dwelling units and associated site improvements on an approximately 4.1-acre site located in the High-Density Mixed-Use (R3-TOD) Zoning District with a Transit Oriented Development Overlay at 675 Trade zone Boulevard and 1951 Tarob Court, and find a CEQA exemption. The Project is located within the Transit Area Specific Plan (TASP) area and submitted under California Senate Bill 330 (Housing Crisis Act of 2019)
Planning Director Thomas introduced the item and Senior Planner Fossati presented the report. Nick Kosla from Toll Brothers, Alli Sweeney from Toll Brothers, Dominic Carucci from RJA Civil Engineers, and Roman De Sota from R3 Studios Landscape Architecture were available to respond to questions from the City Council.
Mayor Montano opened the public hearing.
There were the following public speakers:
1. Voltaire Montemayor
Mayor Montano closed the public hearing.
After discussion, motion: to adopt Resolution No. 9216 to approve Site Development Permit No.
SD22-0006, Conditional Use Permit No. UP22-0002, Vesting Tentative Map No. MT22-0002, Density Bonus Permit No. DB22-0001, Tree Removal Permit No. TR22-0006, and Environmental Assessment No. EA22-0003, subject to the Conditions of Approval, and find a CEQA exemption.
Motion/Second: Councilmember Lien / Vice Mayor Chua
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Vice Mayor Chua, and Mayor Montano NOES: None.
ABSENT: Councilmember Phan.
8. Adopt a Resolution Certifying Milpitas Metro Specific Plan Final Subsequent Environmental Impact Report (SEIR) (SCH#:2006032091) and adopting the Milpitas Metro Specific Plan (updating the 2008 Transit Area Specific Plan)
City Manager McHarris and Planning Director Thomas introduced the report. TASP Manager Riley offered opening remarks and Consultants Jane Lin from Urban Field Studio, Christina Black from M- Group, and Kristi Black from ICF presented the report and respondedto questions from the City Council.
Mayor Montano opened the public hearing.
There were the following public speakers:
1. Voltaire Montemayor
2. Rob Means
3. Jocelyn Gubler
Mayor Montano closed the public hearing.
Mayor Montano suggested possible sites for a Police Substation be on South Main Street or as shown in the plan.
After discussion, motion: to adopt the findings to support the Final Subsequent Environmental Impact Report (SEIR), to adopt the Mitigation Monitoring or Reporting Program (MMRP), and to adopt Resolution No. 9217 to certify the Milpitas Metro Specific Plan Final Subsequent Environmental Impact Report (SEIR) and adopt the Milpitas Metro Specific Plan. 12 Item # C2.
February 7, 2023 Milpitas City Council Minutes Page 4
Motion/Second: Mayor Montano / Vice Mayor Chua
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: Councilmember Phan
LEADERSHIP AND SUPPORT SERVICES
9. Review the List of Agenda Item Requests From Individual Councilmembers and Provide Direction to Staff, Through the Prioritization Process, on Groups 1 Items; Provide Additional Clarification to Staff, If Any, on Group 2 Items
Assistant City Manager Kantak presented the report and responded to questions from the City Council.
Vice Mayor Chua asked staff to clarify the intent of City Council Referral #1, “City Attorney or City Manager to draft a written policy regarding foreign language spoken at the dais” and explain why there was a cost associated with the item. City Attorney Mutalipassi responded that English is the official language in the California Constitution and all business from the dais should be conducted first in English. He indicated that the cost was for translation services for meetings and suggested the item could be incorporated into the City Council Handbook. Vice Mayor Chua withdrew the item from prioritization with direction to the City Attorney to incorporate it into the City Council Handbook.
There were the following public speakers:
1. Voltaire Montemayor
Vice Mayor Chua asked to withdraw City Council Referral #4, “City Manager to look into underutilized areas of parks…” and use recommendations from the Parks Master Plan as guidance in how to proceed.
Mayor Montano expressed concerns with City Council Referral #5, “Discuss converting vacant lot that was a basketball court into a community garden at Vasona and Adobe” and the associated cost.
Assistant City Manager Kantak and Deputy City Manager Cano noted that the cost included not only community outreach, but a feasibility study for converting the property. Mayor Montano stated she expected a survey of residents nearby to determine if the City should pursue converting the property to a garden prior to committing additional resources. She restated her request to conduct a survey of residents to clarify if there is community support for a project, and if there was to bring the item back for further consideration. Vice Mayor Chua stated a survey of residents would not take more than four hours staff time. Together with Mayor Montano, they agreed that the request should be moved to Council Referral Group 2 and would be conducted between themselves.
Councilmember Phan arrived at 9:24 PM.
Council reviewed the list of agenda item requests from individual Councilmembers, and individually voted electronically for four items in group one to advance as a priority.
City Clerk Guzzetta read the result of the vote with the following items receiving a majority of votes and moving forward:
CC #2 – City Manager to look into defining either a standalone teen center or updating information to demonstrate the Senior Center also functions as a Teen Center.
CC #3 – City Manager to look into implementing a workshop for small businesses on the bidding process for projects in the City.
ANNOUNCEMENTS AND FUTURE AGENDA ITEMS
13 Item # C2.
February 7, 2023 Milpitas City Council Minutes Page 5
Councilmember Lien asked to see if the City Manager and staff could assist in finding a month and day to celebrate an International Cultural Festival on Main Street. Vice Mayor Chua objected.
Councilmember Barbadillo made the following requests:
1) Have the City look into the possibility of a Senior Citywide Discount from all Milpitas businesses; and 2) Information on how the City can proceed with the grant for the Milpitas Chamber of Commerce, what it would take to move it forward, where the City is in the process. City Manager McHarris responded that this would be discussed at the Mid-Year Budget meeting on February 21st. In response, Councilmember Barbadillo asked for staff to meet with the Chamber of Commerce on the status of the ARPA funding, as identified in the October City council Info Memo. Councilmember Phan and Mayor Montano objected to the request.
Vice Mayor Chua requested that the City Manager write a congratulatory letter from the Council to newly elected Sheriff Bob Jonsen and express support for two platforms: 1) form partnership among cities to address crimes in Santa Clara County; and 2) and modernizing booking for detainees / suspects streamline the process. Councilmember Phan objected.
Mayor Montano announced that she recently attended the Santa Clara County Library JPA seminar and talked about the open space areas created by libraries for patrons. She made the following requests:
1) Ask the City to investigate the cost of purchasing the parcel next to the library. Councilmembers Phan, Lien, and Barbadillo objected.
2) Look into replacing the existing City Hall electronic sign by purchasing a larger electronic billboard.
Councilmember Phan objected
ADJOURNMENT
Mayor Montano adjourned the meeting at 9:47 PM.
Draft meeting minutes submitted by City Clerk, Suzanne Guzzetta
14 Item # C2.
TENTATIVE CITY COUNCIL AGENDA ITEM LIST
as of 2/16/2023
March 7, 2023 – Regular Meeting
INVOCATION (Councilmember Barbadillo)
PRESENTATION
American Red Cross Month (Proclamation)
National Women's History Month (Proclamation)
Youth Art Month (Proclamation)
25th Annual Women in Construction Week (Proclamation)
CONSENT CALENDAR
1. Receive City Council calendar for March 2023 (City Clerk)
2. Approve City Council Meeting minutes of February 21, 2023 (City Clerk)
3. Preview list of items for March 21, 2023 (City Clerk)
4. Councilmember Request List (City Clerk)
5. Commission Appointments (City Clerk)
6. Approval of Fourth Amendment to Memorandum of Agreement with other Santa Clara Valley municipalities to allow for the continuation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (Public Works)
COMMUNITY DEVELOPMENT
COMMUNITY SERVICES
7. Street Sweeping Pilot Update (Public Works)
PUBLIC HEARING
8. Weed Abatement (Fire Prevention)
9. Intro and First Reading – Tobacco Retail Permit Ordinance (Planning)
PUBLIC SAFETY
LEADERSHIP
REPORTS
15 Item # C3.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
2023-004 Look into purchasing a larger electronic billboard Montano 2/7/2023 2023-003
City Manager write a congratulatory letter from the
Council to newly elected Sheriff Bob Jonsen and
express support for two platforms: 1) form
partnership among cities to address crimes in Santa
Clara County; and 2) and modernizing booking for
detainees / suspects streamline the process Chua 2/7/2023 Staff has prepared a draft letter and will send
to the Sheriff shortly
2023-002
Have the City look into the possibility of a Citywide
Senior Discount Barbadillo 2/7/2023
This item will be discussed at the next
quarterly prioritization in June 2023
2023-001
See if City Manager and staff could assist in finding
a month and day to celebrate an International
Cultural Festival on Main Street Lien 2/7/2023
This item will be discussed at the next
quarterly prioritization in June 2023
1 Staff explore eliminating or waiving the fee for the
gym at the Milpitas Senior Center Chua 10/18/2022
Staff will evaluate this item consistent with
the Recreation and Community Service Cost
Recovery City Council Policy and bring it
back to Council for consideration as part of
approval of the FY 2023-24 Proposed Master
Fee Schedule.
2 Schedule an additional ADU workshop Chua 9/6/2022
Similar to last year, staff will support any
webinar hosted by a community partner.
3 Discuss converting vacant lot that was a basketball
court into a community garden at Vasona and
Adobe Montano 8/16/2022
Item brought forward as part of the City
Council additional workplan items
prioritization in February 2023. Mayor
Montano asked it come back after a survey of
residents was completed to determine
community support.
4 Quarterly or Monthly crime statistics on Homekey
Project Chua 6/7/2022
PD will present quarterly reports starting on
November 15, 2022.
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
5 Staff explore eliminating or waiving the fee for the
gym at the Milpitas Senior Center Chua 10/18/2022
Staff will evaluate this item consistent with
the Recreation and Community Service Cost
Recovery City Council Policy and bring it
back to Council for consideration as part of
approval of the FY 2023-24 Proposed Master
Fee Schedule.
6 Schedule an additional ADU workshop Chua 9/6/2022
Similar to last year, staff will support any
webinar hosted by a community partner.
7 Discuss converting vacant lot that was a basketball
court into a community garden at Vasona and
Adobe Montano 8/16/2022
Item brought forward as part of the City
Council additional workplan items
prioritization in February 2023. Mayor
Montano asked it come back after a survey of
residents was completed to determine
community support.
8 Quarterly or Monthly crime statistics on Homekey
Project Chua 6/7/2022
PD will present quarterly reports starting on
November 15, 2022.
OPEN ITEMS
ACTIVE ITEMS
NOTE: Deferred and Completed Items are not listed16
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
9 Look into the impact of and how the City can
compensate for the massive number of layoffs in
the Bay Area. Staff consider how the City can help
residents affected by layoffs, reach out to those
affected and show them city programs. Chua 12/6/2022
Referred to Economic Development and
Trade Commission. Staff, in partnership with
NOVAworks, provided information about past
and upcoming layoffs, wage and labor data
as well as job and career resources available
to Milpitas residents and businesses at the
Economic Development and Trade
Commission meeting on January 9, 2023.
City staff is continuing to partner with
NOVAworks by promoting their upcoming
layoff assistance webinars to assist with
career transition and unemployment services
and resources. One webinar took place on
January 24 and other webinars are scheduled
to take plae on February 7 and 21.
10 City Attorney or City Manager draft a written policy regarding foreign language spoken at the dais Chua 9/20/2022 Item brought forward as part of the City
Council prioritization in February 2023. Vice
Mayor Chua withdrew the item with direction
to City Attorney to incorporate into City
Council Handbook. City Council Handbook
update scheduled to be heard by City Council
on February 21, 2023.
11 City Manager to look into defining either a
standalone teen center or updating information to
indicate the Senior Center also functions as a Teen
Center Chua 9/20/2022
Discussed at February 2023 Quarterly City
Council Workplan Items Prioritization
Discussion; Approved to move forward during
Prioritization Discussion on 2/7/23
12 City Manager look into implementing a workshop for
small businesses on the bidding process for
projects in the city Chua 8/9/2022
Discussed at February 2023 Quarterly City
Council Workplan Items Prioritization
Discussion; Approved to move forward during
Prioritization Discussion on 2/7/23
13 Funding to hire a consultant for the Sunnyhills
Historical Designation on a state level Tran 6/7/2022
Based on staff research, the best way to try
for a Historical District Designation is at the
National Level. This can be wrapped into the
approved CIP for the Historical Resources
Plan update or through grant consultant
California Consulting; Request will be
included with the Historic Resources Master
Plan project approved as part of the 2023-
2027 Capital Improvement Program.
14 Request for Crossing Guards at McCandless and
Montague Expressway and review wages for
Crossing Guards Montano 4/5/2022
Info Memos were sent to the City Council on
6/13/2022 and 1/27/2023. At the January 31st
budget study session, council voted to move
to a contract model; Staff is in the middle of a
citywide traffic study, which includes school
aged pedestrian counts around schools in the
City including the McCandless and Montague
Expressway intersection.
NOTE: Deferred and Completed Items are not listed17
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
15 Establish a SPAR fund modelled after the City of
Mountain View - sets asides moneys for
opportunities to buy real estate Montano 6/7/2022
At the January 31, 2023 City Council budget
hearing, staff was directed to update the
City's Fiscal Policies to provide an option for
a portion of future surplus funding to be
reserved for real estate acquisition. Staff will
include this edit to the Fiscal Policies as part
of the Proposed Fiscal Year 2023‐2024
Operating Budget; Discussed at Spring
Quarterly City Council Workplan Items
Prioritization Discussion; Approved to move
forward during Summer Quarterly City
Council Workplan Items Prioritization
Discussion on 9/06/2022
16 Memorial Plaque in honor of youth skateboarder
that passed away Montano 6/7/2022
At the January 31 2023 City Council budget
hearing, City Council votes to consider this
item in the FY 2023‐24 budget development.;
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
17 Explore the policy for locking mechanisms on
shopping carts for large commercial businesses Tran 4/19/2022 MMC V‐13‐140 Mandatory Plan to Prevent
Cart Removal includes requirement for
physical measures to prevent cart removal
however V‐13‐120 provides an exemption for
cart owner that agrees to enter into a contract
with a City‐designated retrieval service. Staff
suggestion to Council is to review this
exemption and repeal it which would require
all cart owners to have physical measures to
prevent cart removal. Business outreach was
conducted to grocery store operators in Q2 of
2022 to inquire about shopping cart removal
and theft. Grocery stores contacted were
Ocean Supermarket, Seafood City
Supermarket, Chung Chou City, Milpitas
Grocery Outlet, and 99 Ranch Market;
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
18 Explore an ordinance or policy to reduce thefts and
increase security in the commercial retail parking
areas Chua 4/5/2022
CAO conducting legal review of policies
requring businesses to hire security/install
cameras; Discussed at Spring Quarterly City
Council Workplan Items Prioritization
Discussion; Approved to move forward during
Summer Quarterly City Council Workplan
Items Prioritization Discussion on 9/06/2022
NOTE: Deferred and Completed Items are not listed18
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
19 Create a plan for future solar paneling at City
facilities Montano 3/1/2022
As discussed with the City Council at the 1/31
/2023 Budget Study Sessio, staff will continue
to explore grant opportunities to
install additional solar panels on City
facilities. However, staff will only proceed with
further development if this grant funding is
identified so work (other than reviewing grant
opportunities) is on hold at this time.
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward at the 5/03/2022
meeting; Discussed at the May 10 budget
meeting and approved funding of $25,000 in
the 2022-23 budget
20 Evaluate reopening the childcare center with a non-
profit organization running the center Montano 2/1/2022 No additional funds required to complete the
internal review. Internal review can be done
by late 2023; Approved during Spring
Quarterly City Council Workplan Items
Prioritization Discussion on 5/03/2022.
21 Requested an appropriation in an amount not to
exceed $250,000 to procure a contract to address
the streetlights that are pending fieldwork. Tran 2/1/2022 At this time, staff has sufficient Council
approved resources to address the remaining
streetlight outages; however, will bring
relevant actions for Council consideration, if
needed.
22 Staff to look into mural Art on Great Mall Parkway
on the VTA owned Light rail pillars Montano 11/16/2021
VTA is not responsive to requests from the
City to meet on this project. A discussion on
other locations or projects with Council may
be needed; Discussed at Spring Quarterly
City Council Workplan Items Prioritization
Discussion; Approved at the 5/03/2022
meeting; discussed funding at the 5/10/2022
budget meeting and approved $100,000 of
funding for one site
23 Request for the City to make the temporary third-
party food deliver fee caps permanent and add
additional provisions for enforcement Phan 11/16/2021
Requires legal analysis of 1:21-cv-07695-AT-
SLC DoorDash, Inc. v. city of New York and
3:21-cv-05502-EMC Doordash, Inc. et al v.
City and County of San Francsico. Doordash
v. NYC remains pending and may settle the
law on the matter. CAO will prepare
confidential memorandum for the Council;
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward at the 5/03/2022
meeting
24 Have a picture of Albert Vogel Sr. put up in the
Senior Center Montano 10/19/2021
No additional funding needed. Need final
names from City Council; Approved to move
forward at the 1/11/2022 Council meeting;
Staff engaged the artist of the existing mural
regarding this Council approved item.
25 Requested the City extend the outdoor dining
options through March of next year Phan 9/21/2021
Planning Director to provide information on
current outdoor dining extension
NOTE: Deferred and Completed Items are not listed19
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
26 Include a bust of Maria Lemire on the Mural in front of the Senior Center Montano 8/17/2021
Maria Lemery is to be included on the Senior
Center Mural. It's not an actual "bust"
Approved to move forward at the 1/11/2022
Council meeting; Staff engaged the artist of
the existing mural regarding this Council
approved item.
27 Look into opening up the Senior Center on
Saturdays for half a day Chua 8/5/2021
Funding for Senior Center hours will be
incorporated in the FY23‐24 budget; This
three-month pilot was kicked off on Saturday
Sept. 10. Per the Information Memorandum
issued on Nov. 22, 2022, due to the success
of the Saturday Day hours, the pilot will be
extended for the remainder of the current
Fiscal Year.
28 Look into bringing back a roller rink Montano 8/5/2021 Monies budgeted. Roller Rink bids coming
back end of Feb/early March. Event schedule
for August 4 & 5, 2023; Approved to move
forward at the 1/11/2022 Council meeting.
Funding for the program will need to be
prioritized through the FY 22-23 budget
process; Discussed at 5/10/2022 budget
meeting and approved $100,000 funding for
a two-day event in 2023
29 Staff to create a plan on how to increase the
number of local businesses doing business with the
City Chua 4/6/2021
Staff is tracking this local business
participation item as part of Council Priority
Item 3 in Group 1 on this list; At 8/9/2021
Council meeting, Council voted that this item
may have to come back for additional
discussion because there may be some legal
considerations.
30 Staff to provide information on a landmark policy for the City of Milpitas Tran 3/16/2021
This is part of the CIP for updating the
Historic and Cultural Resources Plan;
8/09/2021 Council voted 5-0 to move this
item forward; this item will be included for
funding consideration in the development of
the FY 2023-27 CIP for assessment of
historical and cultural resources and
development of landmark policy; The funding
for the assessment of historical and cultural
resources and development of a landmark
policy will be included in the 2023-2027
Capital Improvement Program scheduled for
adoption on May 3, 2022. This project will be
scheduled to begin in FY 2022-23.
31 Amendment to the existing ordinance for third-party
food delivery vendor services to prohibit regulatory
response fees Phan 2/16/2021
See update to item titled "Request for the City
to make the temporary third-party food deliver
fee caps permanent and add additional
provisions for enforcement"; Agendized for
discussion on 3/16/2021, deferred to
4/06/2021; CC direction for City Attorney to
prepare a report; At the 11/12/2021
Transportation Subcommittee, the
Subcommittee directed to bring back this
request to Council as part of the FY 2022-23
budget process.
NOTE: Deferred and Completed Items are not listed20
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
32 Ordinance to ban vaping in the City Montano 12/15/2020 Ordinance regarding a ban on use in certain
areas adopted by Council on 6/15/2021.
Council received a follow-up presentation
from staff on 6/21/22 and provided direction
on establishing a local tobacco retail
permitting program and regulating tobacco
retail locations and the sale of flavored
tobacco and electronic cigarette products in
Milpitas. Staff is now coordinating with the
Santa Clara County Department of
Environmental Health (DEH) to set up the
program, and those arrangement will be
brought back to the Council in early 2023.
33 Consider Community Museum and Park on Main St. Phan 8/20/2019 to Rules Subcommittee 8/23/2019. Moved to
Specific Plan Community Conversation
events.
NOTE: Deferred and Completed Items are not listed21
Item # C4.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Accept Commissioner Resignation (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 2/21/2023
Recommendation: Accept the resignation of Karen Adams from the Senior Advisory Commission and direct the City Clerk to post the notice of unscheduled vacancy.
BACKGROUND:
In accordance with the City of Milpitas Commission By-Laws adopted as Resolution No. 7702, any member or alternate member of a Commission who is no longer available to serve, must submit a resignation in writing by sending a written communication to the Mayor and the City Clerk. The written resignation must then be accepted and confirmed by City Council via action on the consent calendar at a regularly scheduled City Council meeting. Karen Adams submitted a notice of resignation from the Senior Advisory Commission.
ANALYSIS:
By state law, a Notice of an Unscheduled Vacancy must be posted by the City Clerk to advertise the vacant Commission seat. Final appointment to the board, commission, or committee for the Unscheduled Vacancy shall not be made by the legislative body for at least ten working days after the posting of the notice in the Clerk’s office. The notice of the unscheduled vacancy for the Senior Advisory Commission will be posted Wednesday, February 22, 2023.
FISCAL IMPACT:
There is no fiscal impact associated with this item.
RECOMMENDATION:
Accept the resignation of Karen Adams from the Senior Advisory Commission and direct the City Clerk to post the notice of unscheduled vacancy.
Attachments:
1. Letter from Senior Advisory Commissioner Karen Adams
22 Item # C5.
23 Item # C5.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve Proposed Edits to the City Council Procedures and Protocols Handbook (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3041) Category: Consent Calendar-Leadership and Support Services Meeting Date: 2/21/2023
Recommendation: Approve proposed edits to the City Council Procedures and Protocols Handbook.
Background:
On January 11, 2022, the City Council approved the City of Milpitas City Council Procedures and Protocols Handbook 2021 (the “Handbook”). The 2021 City Council Handbook was a substantial overhaul of the previous 2004 City Council Handbook, which at the time, had not been amended since 2007. The process to overhaul the handbook took substantial time, effort, and the formation of a Ad Hoc Council Handbook Subcommittee.
This work spanned from 2018 to the Handbook’s adoption in 2022. The Handbook is designed to be brought to Council for updates, as needed, due to changes in the law or if the City Council desires to change its procedures or protocols.
On February 7, 2023, the Council clarified its request for a written policy regarding the use of languages other than English at City Council meetings. The Council determined that the requested policy should be added to the Handbook and that the City should not incur the expense of providing translation services at City Council meetings except under specific circumstances that require translation services or as required by law. The item was moved from the Category 1 priority list to the Category 2 priority list, and the City Attorney was directed to prepare the appropriate draft edits to the Handbook.
On September 13, 2022, Governor Gavin Newsome signed AB 2449 into law. AB 2449 relaxes certain Brown Act requirements for remote appearances by Councilmembers at City Council meetings for just cause or due to emergency circumstances. AB 2449 is a substantial change in open meeting laws that necessitates an update to the Handbook’s section on teleconferencing rules.
Analysis:
A red-lined draft of the proposed changes to the Handbook is attached. The proposed edits are shown in red.
The edits are summarized as follows.
1. AB 2449
Section E(2) has been added to the Chapter IV on Meetings. This section provides a means for a Councilmember to appear virtually at a City Council meeting under the relaxed Brown Act requirements of AB 2449 for just cause or due to emergency circumstances. The policy sets forth the definitions of emergency circumstances and just cause as those terms are defined in AB 2449. The policy clarifies the nature of the general description of the circumstances supporting the emergency circumstances or just cause that the requesting Councilmember must report to the Council and directs the Council to act based on that general description. The policy sets forth the limitations and requirements of AB 2449 including the limitation on the number of meetings at which a Councilmember may attend virtually and the requirements that a Councilmember appearing pursuant to AB 2449 must keep his or her camera on and publicly disclose the adults in the room at the location in which the virtual appearance is being made.
2. Language Policy
24 Item # C6.
Section N has been added to the Handbook’s Chapter IV on Meetings. The section sets forth the Council policy on language use at City Council meetings. It acknowledges that Article III, Section 6 of the California Constitution identifies English is the official language of the State of California. It goes on to state that English should be the language used for the formal portions of a City Council meeting and that all of the business of the Council should be transacted in English. The policy allows for Councilmembers who wish to translate brief comments or questions made in English from the dais into a language that assists limited English‐proficient speakers to do so, so long as the question or comment is first placed into the record in English, and the translation is a true and correct translation of the English comment. The policy allows Councilmembers to address their constituents in any language they choose outside of a meeting in which the official business of the City is conducted. The policy directs that when appropriate or otherwise required by law, the City may provide access, services, and programs for limited English‐proficient speakers such as translation services for limited English‐ proficient speakers including in person, telephonic, or Zoom translation services. Finally, the policy requires that limited English‐proficient speakers must be allowed the same amount of time to comment on at item or at public comment as other speakers. The translation of a person’s comments cannot be counted toward his or her time limit.
Policy Alternative:
Not Applicable
Fiscal Impact:
There is no fiscal impact associated with the approval of this item.
California Environmental Quality Act:
This item is not a Project under CEQA in accordance with CEQA Guidelines Section 15061(b)(3) (Common Sense Exemption) as it can be seen with certainty that a general discussion of funding priorities by the City Council will not have a significant effect on the environment. Further, the item is also not a Project pursuant to CEQA Guidelines Section 15378(b)(4) as it is a government fiscal activity that does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment.
Recommendations
Approve proposed edits to the City Council Procedures and Protocols Handbook.
Attachments:
1. Draft City Council Protocols and Procedures Handbook
25 Item # C6.
City of Milpitas
City Council Procedures and Protocols
Handbook
2021
26 Item # C6.
TABLE OF CONTENTS
Page
-i-
Chapter I. Purpose and Overview ...........................................................................................1 Chapter II. Duties of the City Council .......................................................................................2 Chapter III. Mayor and Councilmember Conduct.................................................................... 76 Chapter IV. Meetings .......................................................................................................... ....98 Chapter V. Meeting Agendas and Minutes...........................................................................1 96 Chapter VI. City Council Actions ...........................................................................................2 30 Chapter VII. Communication ..................................................................................................2 52 Chapter VIII. Council Liaison Roles ........................................................................................2 94 27 Item # C6.
1 CHAPTER I. Purpose and Overview
A. Purpose
This City Council Procedures and Protocols Handbook (Handbook) outlines the Milpitas City Council governing practices.
B. Applicability of Handbook
When not in conflict with the Constitution, the laws of the State of California or the Milpitas Municipal Code, this Handbook shall govern.
C. Revisions to the Handbook
This Handbook will be brought to Council for updates, as needed, due to changes in the law or if the City Council desires to change its procedures or protocols.
28 Item # C6.
2 CHAPTER II. Duties of the City Council
A. General Authorit ies of City Council
Milpitas was incorporated on January 26, 1954. As a general law city, Milpitas derives its authority from and is subject to the California Constitution and the general laws of the State of California.
The City Council is the policy and lawmaking body of the City. State and local laws define the powers and responsibilities of the City Council.
The City has a Council Manager form of government in which the elected City Council sets policy direction and the City Manager implements Council policy, manages day-to day operations and provides professional recommendations to support the Council on policy decisions. Although the Council and City Manager operate in all four dimensions of the governance process: mission, policy, administration and management, the Council’s focus is on the mission and policy while the City Manager’s focus is on administration and management. Clarity of roles are informed by this Handbook and Municipal Code provisions that provide the overall framework for the governance relationship.
B. Duties of Mayor
The Mayor is directly elected by Milpitas voters. The Mayor is the official head of the City of Milpitas for all ceremonial purposes. The Mayor is entitled to vote on all matters but does not possess any veto power. The Mayor signs all ordinances and resolutions after approval by the majority of the City Council.
C. Duties of Vice Mayo r (Mayor Pro Tempore)
The Vice Mayor is selected from those on the Council during the first meeting at which the Mayor and returning or incoming Councilmembers commence their terms.
Nomination is done through a motion and appointment is based on a majority vote.
In the event that the Mayor cannot attend a ceremonial function, the Vice Mayor shall serve as the official head of the City in his or her stead. In the event that neither the Mayor nor Vice Mayor can preside at a ceremonial function, one of the remaining members of the City Council shall serve as the official head of the City on a rotating basis to be administered by City staff.
D. Duties of Mayor and Councilmembers
1. Arrive on time for all Council meetings.
2. Review all meeting materials pu blished in accordance with the Open Government Ordinance and other applicable laws, in preparation for Council meetings. As a body, provide clear direction to staff to aid in the development and consideration of proposed ordinances, policies, and 29 Item # C6.
3 procedures. Pass ordinances, adopt resolutions, approve new projects and programs, and approve the budget and contracts.
3. Keep in touch with the community and interpret what is heard to Council colleagues and to the staff.
4. Participate in City Council meetings and other public forums.
5. Represent the City Council by fu lfilling the liaison assignments to legislators, external agencies, and the City’s boards and commission.
6. Requests for Staff Resources
a. Mayor and Councilmember requests to consider new programs, services, or requests for significant allocations of resources, shall be directed to the budget process to the maximum extent possible. b. Mayor or Councilmember requests for minor (generally less than four hours of staff time) research or other staff work must be directed to the City Manager.
c. If more than four hour s of staff time will be required to complete the task/project, the item will be placed on the agenda to ask the City Council if time should be spent on the proposed item. A discussion and prioritization of Mayor and Councilmember requests are scheduled on a quarterly basis.
d. Mayor and Councilmember requests for more than four hours of staff work for City Council consideration will adhere to all the City of Milpitas Open Government Ordinance provisions, including, but not limited to:
- I-310-2.30 Agenda Requirements. “(b) At least six (6) days before a regular City Council meeting, a preliminary agenda shall be posted containing a meaningful
description of each item of business to be transacted.”
- “(c) A description is meaningful if it is sufficiently clear and specific to alert members of the public whose interests are affected by the item that he or she may have reason to
attend the meeting or seek more information on the item. - To achieve the above requirements, all materials must be submitted to the City Clerk, to the extent possible, no less than eight (8) days in advance of a Council meeting.
e. Staff responses to a Councilmem ber inquiry, including the original inquiry, shall be distributed to the Mayor and all City Councilmembers.
7. Absences
30 Item # C6.
4 a. Whenever a member knows in ad vance that he or she will be absent from a City Council meeting, it is the responsibility of that member to notify the City Manager or City Clerk as soon as possible of the impending absence.
b. If a City Councilmember is abs ent without permission from all regular City Council meetings for 60 calendar days consecutively from the last regular meeting he or she attended, his or her office becomes vacant pursuant to Government Code 36513.
8. Administration of Oaths
The Mayor may require any person addressing the City Council to be sworn as a witness and to testify under oath; and must so require if directed to do so by a majority of the City Council. The Mayor may administer oaths. Appeals and revocation hearings are the most likely instances when testimony is taken under oath.
9. Subpoenas
In accordance with Government Code 37104, the City Council may issue subpoenas requiring attendance of witnesses or production of books or other documents for evidence or testimony in any action or proceeding pending before it.
10. City Council Subcommittees
Council subcommittees, when used, are to help the Council do its job.
Subcommittees ordinarily will assist the Council by studying an issue and preparing policy alternatives and implications for Council deliberation.
Council subcommittees may not speak or act for the Council, and the subcommittee members should be regularly reporting out their work to the City Council through a scheduled agenda item.
There are generally two types of subcommittees as follows:
Standing subcommittees that have continuous subject matter jurisdiction and will continue to exist until the City Council terminates their existence through formal action.
Ad hoc subcommittees have limited subject matter jurisdiction and are usually formed primarily to study a particular topic or immediate issue, and once their task is complete, the ad hoc subcommittee will automatically terminate.
Both standing and ad hoc subcommittees of the City Council are subject to the Brown Act pursuant to the City’s Open Government Ordinance.
Subcommittees shall obtain City Counc il concurrence before they proceed in any direction different from the original instructions of the City Council. In addition, Subcommittees should not implement policy, provide direction that would result in incurring additional expenses or provide direction to staff to 31 Item # C6.
5 take any actions that are not consist ent with existing City Council direction without first obtaining City Council approval for such actions.
11. Compensation for Mayor and Councilmembers
Information about compensation for the Mayor and Councilmembers can be found in the Milpitas Municipal Code I-14-1.00, et seq.
12. Travel Expenses and Reimbursements
Information about travel expenses and reimbursements for City related expenses can be found in the City Council Travel Policy 3-1.
E. City Council Vacancies
A vacancy in the office of Councilmember or Mayor may be filled by appointment by the City Council. The appointee shall hold office until the next special municipal election which shall be immediately called to fill the remainder of the vacant term as provided under Milpitas Municipal Code Section I-3-2.00. Any unexpired remainder of the term of such office shall be filled by the voters at such election.
F. Role of City Manager.
1. The City Manager is the chief ex ecutive officer and the head of the administrative branch of the City government. The City Manager is appointed by the City Council and reports to the full City Council. The City Manager shall work in collaboration with the City Attorney.
2. The City Manager implem ents policies and procedures initiated by City Council and manages the day-to-day operations of the City. The City Manager supports the full Council in setting clear goals for the City and optimizes the use of City resources to meet these goals.
3. The City Manager is t he appointing authority, responsible for all City personnel. The City Manager or designee serves as a liaison to each commission. The use of City-owned property is handled through the City Manager's Office. The City Manager supports effective policy making and oversight by the City Council by providing information, formulating policy proposals, advising and informing the Council on policy matters while promoting team building and collaboration, and ensuring that the administration’s delivery of service is consistent with City Council direction.
4. The City Manager prepares the budget annually, advises the City Council of future financial needs, and is responsible for budget administration after adoption. The City Manager prepares and submits to the City Council a complete report at the end of each fiscal year on the finances and administrative activities of the City during the preceding year. City Manager 32 Item # C6.
6 shall also present quarterly fiscal/budgetary updates or requested throughout the year.
G. Role of City Attorney.
1. The City Attorney is appointed by t he City Council and reports to the full City Council. The City Attorney advises the City Council and City officers in their official capacity on legal matters affecting the City, attends all City Council meetings and some board/commission meetings, and represents the City in legal actions and proceedings. The City Attorney shall work in collaboration with the City Manager.
2. The Office of the City A ttorney approves as to form all bonds and contracts made by the City, approves all ordinances and resolutions and related amendments for the City, and prosecutes criminal cases for violation of City ordinances.
3. The members of the City Attorney's Office (attorneys and staff) maintain an attorney-client relationship with the City, full City Council or individual members thereof, its officers, agents and employees, so their official communications are protected as confidential attorney-client privilege.
33 Item # C6.
7 CHAPTER III. Mayor and Councilmember Conduct
A. Mayor and Councilmembers shall:
The Milpitas City Council Code of Conduct, as approved by the City Council and noted below, shall be included in Council meeting agendas and read aloud at all City Council meetings.
Milpitas City Council Code of Conduct
Be respectful and courteous (words, tone, and body language) Model civility.
Avoid surprises.
Praise publicly and criticize privately.
Focus on the issue, not the person.
Refrain from using electronic devices while on the Council dais. Disclose conflicts of interest and a ffiliations related to agenda items. Separate governing from campaigning.
The Council speaks with one voice after making policy on issues. Respect the line between policy and administration.
Council will hold one another accountabl e to comply with this Code of Conduct.
B. Mayor and Councilmember Best Practices for Council Meetings put constituents first at all times;
treat each other and members of t he public with dignity, courtesy, and respect;
maintain confidentiality of all closed session materials and discussion; be attentive to others, limiti ng interruptions and distractions; encourage diverse viewpoints in debate while being mindful not to prolong discourse or block consensus;
agree to respectfully disagree;
keep comments clear, c oncise, and on topic;
start meetings on time , work from the agenda; and
present problems in a way that promotes discussion and resolution.
C. Mayor and Councilmember Conduct with City Staff:
34 Item # C6.
8 1. Always maintain professionalism, treat all staff with respect.
2. Direct staff personnel i ssues to the City Manager.
3. Comments about staff performance s hould not be made in public or to the individual employee and should only be made to the City Manager through private correspondence or conversation.
4. Comments about staff in the office of the City Attorney should be made directly to the City Attorney.
5. In accordance with Milpitas Municipal Code VI-1-2.04, except for purposes of inquiry, the City Council and its members shall deal with the administrative staff solely through the City Manager.
6. The Mayor and Councilmembers must not attempt to influence City staff on the making of employment appointments, awarding of contracts, selecting of consultants, processing of development applications, or granting of City licenses and permits.
7. Routine administrative support will be provided to the Mayor and all Councilmembers. Requests for additional staff support - even in high priority or emergency situations — should be made to the City Manager.
8. Do not solicit political support from staff. The Mayor and Councilmembers should not solicit any type of political support (financial contributions, display of posters or lawn signs, name on support list, etc.) from City staff.
City staff may, as private citizens with constitutional rights, support political candidates but all such activities must be done away from the workplace and on personal time.
35 Item # C6.
9 CHAPTER IV. Meetings
A. All Council decisions must occur at City Council meetings pursuant to the requirements of the Ralph M. Brown Act. The City Council shall not use a series of telephone calls, a conference call, mass e-mailing or any other method of communication to discuss or decide matters within the jurisdiction of the Council among a majority of the Councilmembers.
B. Quorum
1. No business may be transacted by the Council at a regular or special meeting unless a quorum of the membership is present (on a 5 member Council, a quorum is 3 members).
2. When there is no quorum, the Mayor or Vice Mayor, or any Councilmember may adjourn a meeting, or if no Councilmember is present, the City Clerk may adjourn a meeting.
C. Council Meeting Dates; Cancellation
1. If at any time any regular meeting of the Council falls on a holiday, the regular meeting shall be held on the next business day or the earliest business day within a week.
2. Any meeting of the City Council may be canceled in advance by the Mayor.
It can also be cancelled by a majority of the Councilmembers at a City Council meeting. The City Manager may also cancel a meeting in cases of need, such as an emergency or when a majority of members have provided notice of their unavailability to attend a meeting.
D. Types of Meetings
1. Regular meetings are held on the fi rst and third Tuesdays of each month at 7:00 p.m. in the City Hall Council Chambers, 455 E. Calaveras Blvd., Milpitas, California. Pursuant to the requirements of the City’s Open Government Ordinance, the Preliminary agenda is posted by the Wednesday preceding the regular meeting date. The Brown Act requires the posting of an agenda at least 72 hours prior to a regular meeting.
2. Special Meetings may be called by t he Mayor. They can also be called by a majority of the Council at a public meeting. Any special meeting called requires a minimum of 24 hours’ notice as required by the Brown Act. Only business described in the notice may be transacted.
3. Study Sessions may be held as part of a regular meeting or special meeting and are held for the purpose of providing information to the City Council, particularly on issues that are more complex or more time- consuming. Study sessions may be conducted jointly with another City board, commission or committee or another governmental agency. At study sessions Councilmembers may state their individual responses and 36 Item # C6.
10 questions to the information provided and may collectively provide direction to City staff. No formal action is taken at the study sessions.
4. Closed Sessions can be part of either regular or special meetings, typically in advance of the regular or special meetings. The start time of the Closed Sessions shall be publicly noticed in accordance with the law. The Council conducts its business in public to the greatest extent possible. State law, however, recognizes that in certain limited circumstances authorized by the Brown Act, that the Council will need to meet in private without the public present. These matters may include certain personnel matters, labor negotiations, real property negotiations, matters of public security, and the discussion of litigation, among other topics listed in the Brown Act. These rules provide for strict confidentiality of City Council discussion as required by State law and no Councilmember shall disclose anything discussed in closed session to any individual not present in that closed session. Violating this confidentiality requirement can subject an individual Councilmember to disciplinary action, a referral to the grand jury, and in some limited circumstances, criminal prosecution. In limited instances, if action is taken in closed session, the City Attorney may need to report out any action taken and any vote on that action.
5. Emergency Meetings can occur in limited circumstances when there is a work stoppage, crippling activity, other activity that impairs public health, safety, or dire emergency. Depending on the factual circumstances, 24 hour notice or one hour notice may be required, or no notice at all.
E. Teleconferencing
1. Pursuant to Government Code Sect ion 54953(b), teleconferencing may be used as a method for conducting meetings where Councilmembers may be counted towards a quorum and participate fully in the meeting from remote locations. If a Councilmember participates in a meeting via teleconference, the following requirements must be met:
a. The remote locations must be connected to the main meeting location by telephone, video, or both.
b. The notice and agenda of the meeting must identify the remote location.
c. The agenda must be posted at the remote location and be accessible to the public.
d. All votes must be by roll call.
e. The meeting must in all respects comply with the Brown Act, including participation by members of the public present in the remote locations.
37 Item # C6.
11 f. During the teleconference, at l east a quorum of the members of the City Counc
il shall participate from locations within the boundaries of the City.
2. Alternatively, a Councilmember may appear virtually at a limited number of meetings without identifying his or her location on the agenda, posting the agenda in the remote location, or allowing public attendance in the remote location so long the Councilmember is participating remotely for just cause or due to emergency circumstances. The Councilmember must inform the City Manager as early as possible of the just cause or emergency circumstance so that the need for a remote appearance can be agendized and acted on by the entire Council.
a. An emergency circumstance means a physical or family medical emergency that prevents a Councilmember from attending in person. b. Just cause means, (A) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires a Councilmember to participate remotely, (B) a contagious illness that prevents a Councilmember from attending in person, (C) a need related to a physical or mental disability, or (D) travel while on official business of the City or another state or local agency.
c. The Councilmember requesting the virtual appearance shall offer the Council a general description of the circumstances relating to his or her need to appear virtually. The description generally need not exceed 20 words and shall not require the Councilmember to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law. The Council shall act on the request based on this description.
d. A Councilmember may appear virtually for just cause not more than two times per calendar year. A Councilmember may not participate virtually pursuant to the relaxed Brown Act rules for a period of more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year. e. During the meeting, the Councilmember shall publicly disclose, before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the Councilmember, and the general nature of the Councilmember’s relationship with any such individuals.
f. The member shall participate through both audio and visual technology, which means that the Councilmember must have their camera turned on during the conduct of the meeting.
2.3. Because there are other legal nuances to making use of the teleconferencing provisions in the Brown Act, please check in with the City Attorney or City Clerk in advance.
38 Item # C6.
12 3.4. During certain state of emergency situations, it may also be possible to meet remotely without complying with some of the requirements above, depending on certain findings that must be met during a state of emergency as required by the Brown Act. See, Cal. Gov. Code 54953(e) F. Presiding Officer
1. The Mayor presides at all City Co uncil meetings. In the absence of the Mayor, the Vice Mayor is the presiding officer. If both the Mayor and Vice Mayor are absent, the remaining Councilmembers should select a presiding officer for that meeting. The presiding officer votes on all questions as do other members of the City Council.
2. The Mayor/presiding officer always si ts in the middle seat at all formal council meetings. The Vice Mayor and City Manager are always seated immediately next to the Mayor/presiding officer. Councilmembers are seated based on seniority on the City Council. The Councilmember with the most seniority is seated next to the Vice Mayor, followed by the next most senior Councilmember and so forth. Seniority is defined by continuous time of service as an elected member of the Council. When two or more Councilmembers have equivalent time of service, those Councilmembers shall be given priority in seat selection by the highest number of votes in his/her most recent election.
3. The presiding officer conducts t he meetings of the City Council to:
a. Ensure that consideration of items on the agenda move along without delay.
b.
Ensure that petitioners, proponents and opponents are heard but not allowed to disrupt the meeting.
c. Ensure that decorum is maintained at the meeting.
d. In presiding over matters wher e the public has provided testimony and/or raised questions, the presiding officer should:
(i) Restate every question coming before the Council.
(ii) Direct questions or comments requiring a response to staff for a response.
(iii) Ensure that staff and mem bers of the public direct their comments to the presiding officer.
(iv) If necessary, help keep Councilmember questions relevant to the matter being considered by the Council.
(v) If necessary, consider calling for a brief recess if orderly conduct of the meeting is being disrupted.
(vi) Announce the decision of the Council on all subjects. 39 Item # C6.
13 4. Ensure that each member of the Council is provided an opportunity to completely express their views on items of business, the Mayor should:
(i)
See that Councilmembers ask to be recognized by the Mayor before speaking.
(ii) Ensure that each Councilmem ber is given the opportunity to fully express their views.
5. The Chief of Police, or his or her representative, is the ex officio sergeant- at-arms of the City Council. The ex officio sergeant-at-arms shall carry out all orders and instructions given by the presiding officer for the purpose of maintaining order and decorum in the council chamber.
G. Voting; Rules of Procedure
1. A motion, second, and a majority vote of the Council shall be required for any formal action of Council (except where a different vote requirement is set by state law). Votes and abstentions are taken by roll call and recorded in the meeting minutes.
2. Steps in making, discussing and voting on a formal motion:
a. The maker of the motion asks fo r recognition by the presiding officer. After the individual is recognized, he or she will say "I move that we ..."
b. The presiding officer will ask if there is a second. Another member of the group must second the motion in order for it to be discussed.
A second is made by saying "I second the motion." The Mayor or any Councilmember can suggest one or more modifications in the motion, which the member making the motion can accept or reject.
There also may be times where the City Manager or City Attorney may suggest an amendment to the motion for clarity purposes for the public, which the member making the motion can accept or reject.
c. The presiding officer then restates the motion "It has been moved and seconded that ..." and opens the floor to discussion and debate. d. The presiding officer will recognize members who wish to comment on the motion. Only one “main motion” may be discussed at a time. e. Once discussion has concluded, the presiding officer will "call for the question" and conduct a roll call vote.
f. The presiding officer will announce the result of the vote.
3. Unless state law requires otherwise, a majority vote is needed for the motion to pass. In the event of a tie vote, the motion does not pass. 40 Item # C6.
14 4. Subject to state law limitations and to the extent this Handbook does not address an issue of parliamentary procedure, Roberts Rules of Order shall apply. For example, even though Roberts Rules of Order permit a legislative body to reconsider or rescind prior actions, under due process the City Council cannot reconsider or rescind a quasi-judicial decision after the decision is final, in the absence of statutory authority to the contrary.
5. The City Attorney serves as parliam entarian during City Council meetings.
The role of the parliamentarian is advisory; the Chair has the power to rule on questions of order.
H. Continued Matters
1. Any matter may be continued to a subsequent meeting.
2. If the Mayor or Councilmember who wa s not present at a prior meeting has reviewed the relevant documents and minutes from the missed meeting and, if possible, reviewed the recording or webcast from the meeting, then he or she shall disclose those actions on the record at the beginning of the discussion of the item and may vote on the continued matter. a. Exception: Continued Public Heari ng. If a hearing is required for an agenda item, then the Mayor or a Councilmember shall not participate in the decision if that member was not present during the entire hearing from the time of its opening to the time of its close. (MMC § I-20-3.14.) I. Public Participation
1. Members of the public are encouraged and invited to participate in the legislative process by submitting written comments before the meeting or speaking at a meeting.
It is the intent of these rules to allow everyone to be heard without fear of jeers or cheers that may discourage public participation. For this reason, these rules are taken seriously. Persons attending the meeting will refrain from behavior which will disrupt the public meeting. This includes making loud noises, clapping, shouting, booing, hissing or engaging in any other activity in a manner that disturbs, disrupts, or impedes the orderly conduct of the meeting. Disruptive or threatening behavior may result in removal from the Council meeting.
2. Only the presiding officer can inte rrupt a speaker during a presentation.
However, a Councilmember can ask the Mayor for a point of order if the speaker is off the topic or exhibiting behavior or language the Councilmember finds disruptive.
3. Time Limits for public comment:
a. Individual Speakers - 3 minut es or less as determined by the Mayor/presiding officer.
41 Item # C6.
15 b. Organized group (in lieu of indivi dual speakers) – up to 15 minutes, depending on the number of speakers represented and at the discretion of the Mayor.
c. The presiding officer may take a poll to determine number of speakers for each item and at his/her discretion, limit the amount of time allotted to the speaker(s) when needed.
4. Individuals who wish to speak should submit a speaker card to the City Clerk to be called up at the appropriate time. Each speaker may only speak once on an item and shall speak at the podium into the microphone and address the City Council. A speaker may also provide comments virtually if the meeting format allows virtual participation.
5. Written or photographic materials relev ant to consideration of a matter may be submitted to the Council. Copies of such materials should be provided for the Mayor, Councilmembers, City Clerk, City Manager and City Attorney. The materials must be submitted to the City Clerk’s Office by email to [email protected] by 12:00 p.m. on the day of the meeting, for distribution to the city officials in advance of the meeting/hearing. The City Council retains discretion to accept or to reject new documentation furnished on the night of the City Council meeting/hearing. Accepted materials are retained by the City and become part of the official public record.
6. Wireless/Cellular telephones or any other telecommunications device should be in the silent mode or turned off during the City Council meeting.
7. Literature distribution or petition circulation is not permitted when the City Council is in session. Such activity may occur outside the meeting room, provided access is not blocked.
8. Objects and symbolic materials, such as signs or banners, will be allowed in the Council Chambers, with the following restrictions:
a. Signs or symbolic objects shall not obstruct the view or passage of other attendees, or otherwise disturb the meeting.
b. Objects that are deemed a safety threat to persons at the meeting or could damage the facility itself will not be allowed.
J. Discussion Items on the agenda are to be conducted in the following order:
1. Staff / applicant presentation
2. Council questions to applicant and/or staff
3. Open public hearing (or public comment section) for comments
4. Close public hearing (o r public comment section)
42 Item # C6.
16 5. Response by staff to public questions/concerns, if warranted
6. Council discussion and deliberation
7. Council votes
K. Quasi-Judicial Matters /Appeals/Revocation Hearings
1. Quasi-judicial matters and appeals will be considered at a noticed public hearing and will follow the order stated in Section I, above, with the following time allocations:
a. Applicant/Appellant – 15 minutes
b. Individual Speakers – 3 minutes
c. Rebuttal – 5 minutes
d. In an appeal, if the appellant is not the applicant, the applicant shall also have 15 min and is entitled to make any concluding remarks prior to closure of the public hearing
The time limits may be changed by the presiding officer to permit full and fair consideration of a particular matter depending on the number of items on the agenda and the number of persons desiring to speak on a matter.
2. If the Mayor or a Councilmember has spoken or met with a proponent or opponent of a quasi-judicial matter or has visited the site of a project which is the subject of a hearing, that contact, or visit should be acknowledged and described on the record prior to the opening of the hearing. Any facts that could influence the Mayor or a Councilmember's decision, must be included in the public record.
L. Items Considered after 11:00 p.m.
1. Unless a majority of the Council de termines there is a need to act, no items shall continue, and no new items shall be heard after 11:00 p.m.
M. Conflict of Interest
1. The Political Reform Act (PRA) enfor ced by the Fair Political Practices Commission (FPPC), controls financial conflicts of interest.
2. In accordance with the Open Gove rnment Ordinance (MMC I-310-2.180), at the beginning of each City Council meeting or upon the arrival of the Mayor or Councilmember, the City Attorney shall ask the Mayor and each member of the City Council to disclose any financial or personal conflict with any item on the City Council's agenda. Pursuant to Government Code section 87105, if the Mayor or a Councilmember discloses that such a personal financial interest is present, he or she shall publicly identify the conflict or potential conflict in detail sufficient to be understood by the 43 Item # C6.
17 public and shall recuse him or herself from taking action on the item if required to do so by law and leave the meeting room.
3. The other applicable law is Govern ment Code §1090, which applies only to contracts in which a public official has a financial interest.
4. Whenever it appears to a Councilm ember that he or she may have a prohibited financial interest in any item that may be presented to the City Council, the Councilmember should consult with the City Attorney at the earliest opportunity for advice on whether a disqualifying conflict of interest exists.
5. With full consideration of the City Attorney’s advice, it is up to each individual Councilmember to decide for him/herself whether there is a conflict of interest. When a Councilmember may be in doubt, the City Attorney can obtain more formal advice from the Fair Political Practices Commission (FPPC).
6. A member shall not vote upon any ma tter on which s/he has a conflict of interest.
7. A member shall openly st ate the reason for his/her conflict of interest, or work in consultation with the City Attorney to state something on the record.
8. A member who is disq ualified by a conflict of interest shall recuse him/herself from the dais and leave the room unless it is during the Consent Calendar.
N. Meeting Language
1. In accordance with Article III, Secti on 6 of the California Constitution, English is the official language of the State of California. English should be the language used for the formal portions of any meeting. All business of the Council should be transacted in English.
2. Councilmembers who wish to translat e brief comments or questions made in English from the dais into a language that assists limited English- proficient speakers may do so, so long as the question or comment is first placed into the record in English, and the translation is a true and correct translation of the English comment.
3. Councilmembers may address their constituents in any language they choose outside of a meeting in which the official business of the City is conducted.
4. When appropriate or otherwise requi red by law, the City may provide access, services, and programs for limited English-proficient speakers such as translation services for limited English-proficient speakers including in person, telephonic, or Zoom translation services. 44 Item # C6.
18 5. Limited English -proficient speakers must be allowed the same amount of time to comment on at item or at public comment as other speakers. The translation of a person’s comments cannot be counted toward his or her time limit.
45 Item # C6.
19 CHAPTER V. Meeting Agendas and Minutes
A. Agenda Order
City Council agendas will be prepared by the City Clerk and presented to the City Council in the order described below. The presiding officer with the approval of a majority of the Council can change the order of hearing the items on the agenda.
1. Opening
a. Call to Order by Mayor and Roll Call by City Clerk
b. Adjourn to Closed Session
c. Closed Session Announcement
d. Pledge of Allegiance . If the Mayor and Vice Mayor are both absent, then the City Clerk calls the meeting to order and a temporary presiding officer is elected by a majority of those councilmembers present. Upon the arrival of the Mayor or Vice Mayor, the temporary presiding officer relinquishes the chair at the conclusion of the business then before the City Council.
e. Invocation. In accordance with the policy adopted by City Council (SOP 1.2), the Mayor and Councilmembers shall invite a community member to give an invocation at the speaker podium.
2. Ceremonial matters.
The presentation and receipt of proclamations and
commendations not requiring formal legislative action.
3. Public Forum. Members of the public wishing to comment on any item not appearing on the agenda may address the City Council at this time. State law prevents Council from taking action on any matter not on the agenda.
Comments may be referred to staff for follow up. Individuals are limited to 3 minutes. However, the presiding officer has discretion to reduce the speaking time in situations where there are a large number of persons who wish to speak.
4. Announcements and Future Agenda Items. The Mayor and Councilmembers shall report on any meetings or conferences attended and paid for by the City and may also report on various assignments or other events. The Mayor and Councilmembers shall be limited to the same amount of speaking time as members of the public during open public comment (3 minutes). The City Manager may also make brief announcements. This section will include special reports and any other requests for staff work by the Mayor and Council.
46 Item # C6.
20 5. Announcements of Conflict of Inte rests and Campaign Contributions. City Attorney shall ask the Mayor and Councilmembers to declare any conflicts of interest or campaign donations related to items on the agenda, in accordance with the Milpitas Open Government Ordinance (Municipal Code I-310)
6. Reading of the Cit y Council Code of Conduct
7. Approval of Agenda
8. Consent Calendar. All matters listed under the Consent Calendar, including minutes, are considered by the Council to be routine and will be enacted by one motion without discussion (except for simple clarifying questions). If discussion is desired, that item may be removed and considered separately.
9. Public Hearing. Duly noticed hearings as mandated by local, state, or federal law, providing an opportunity for public review and comment of a proposed action by the Council.
10. Community Development. This section will cover the Community Development City Service Area and will include items related to Building, Housing, Economic Development, Engineering (Land Development), and Planning.
11. Community Services and Sustainable Infrastructure. This section will cover the Community Services and Sustainable Infrastructure City Service Area and will include items related to Engineering (Capital Projects and Solid Waste), Public Works, and Recreation and Community Services,
12. Public Safety. This section will cove r the Public Safety City Service Area and will include items related to Fire/Emergency Preparedness and Police.
13. Leadership and Support Services. Th is section will cover the Leadership and Support Services City Service Area and will include items related to the City Clerk, City Council, City Manager, Finance, Human Resources, and Information Services.
14. Reports of Mayor and Councilmember s. Reports and work plans from Commissions will be presented in this section.
15. Adjournment
B. Agenda Item Submission
1. The City Manager has the primary res ponsibility for the development of the Council Agenda, ensuring all protocols are followed, and that management of the agenda is closely linked to organizational goals and work plans. Any item that is placed on the agenda shall be in accordance with the City’s 47 Item # C6.
21 Open Government ordinance (MMC I-310) so that it can be clearly understood by members of the community.
2. Mayor or Councilmember:
a. The Mayor or a Councilmember may request the City Manager to add an item to a Council agenda. No staff report or other staff work will occur until the item is discussed before the full City Council.
Discussion and prioritization by the City Council will occur on a quarterly basis.
b. Councilmembers may make this request verbally during a meeting or may submit a written request to the City Manager at other times. c. See Section 2.C.4 “Request for Sta ff Resources” for further details on any associated staff work related an agenda item request.
3. Members of the Public. A mem ber of the public may request Council action in the following ways:
a. Write a letter to the City Council
b. Speak during the Public Comment period at a City Council meeting c. Attend annual Council goal setting meeting and provide input Upon agreement of a majority of the City Council, Council will determine whether to place on a future agenda an item requested by the public.
C. Meeting Minutes
1. The preparation of accurate minutes is the responsibility of the City Clerk a) In general, summary minutes are used to record proceedings. The record focuses on who spoke and the motions and votes. Video recordings are used in order to serve a number of administrative, legal and historical functions and to provide verbatim record of meetings. Failure to record does not affect the validity of any proceedings or action taken by the City Council.
b) The City Clerk may be directed by the presiding officer, with the consent of the City Council, to enter in the minutes a synopsis of the discussion of any matter coming before the City Council. The synopsis should be in complete sentences.
c) The Mayor or a Councilmember may request, through the presiding officer, the privilege of having a previously prepared written abstract summarizing the major points of his or her statement on any subject 48 Item # C6.
22 under consideration entered into the minutes. If the City Council consents, such an abstract is entered into the minutes. d) Items such as letters which indi viduals request “to have entered into the record” are referred to in, but do not become a part of, the minutes.
e) Changes in substantive matters may be made only at the direction of a majority of the City Council. Clerical corrections are to be made when discovered in order to maintain accuracy.
49 Item # C6.
23 CHAPTER VI. City Council Actions
Several different types of action may be taken by the Mayor and/or City Council.
A. Proclamations.
Proclamations are issued by the Mayor without formal action by the City Council.
Proclamations are public announcements directing attention to a person, organization or event, such as Citizen of the Year, Girl Scout Week, or International Year of the Child. Councilmembers need to make their requests to the Mayor, only the Mayor can issue proclamations.
B. Commendations.
Commendations are acknowledgments of the activities of a person or organization, issued by the Mayor or by all Councilmembers without formal action being taken. Commendations typically acknowledge exceptional endeavors or are given to retiring employees and departing board and commission members and are presented at an appropriate function or council meeting.
C. Ordinances.
Legislative acts of the City Council are known as ordinances. Subject to certain state law exceptions, most ordinances are introduced at one meeting and are adopted by majority vote at a subsequent meeting and go into effect 30 days after adoption.
An ordinance is necessary (1) when state law requires a regulation to be adopted by ordinance, (2) to amend or repeal provisions of the Municipal Code or any uncodified ordinances, and (3) to impose regulations on persons or property in the City.
Ordinances shall be prepared by the City Attorney. Ordinances are prepared for presentation to the City Council when ordered by a majority vote of the City Council, or when requested by the Mayor or the City Manager, or when prepared on the City Attorney’s own initiative.
D. Resolutions.
Resolutions are City Council actions which become effective upon adoption and encompass the business not addressed through ordinances. They are typically used to handle routine business and administrative matters requiring some type of formal memorialization. Resolutions are used for various reasons, such as when specifically required by law, when needed as a separate evidentiary document to be transmitted to another agency, or where the frequency of future reference back to its contents warrants a separate documents to facilitate reference and research.
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24 E. Motions.
The least formal of City Council actions, motions typically are used for procedural matters (such as to continue items) or for administrative matters (such as to accept reports). An adopted motion is as legally effective and binding as an adopted resolution but generally is recorded simply as an item entry in the minutes.
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25 CHAPTER VII. Communication
A. California Public Records Act.
All letters, memoranda, and email and other electronic communications involving City Councilmembers and members of boards, commissions, committees and task forces, the subject of which relate to the conduct of government or the performance of any governmental function, with a few exceptions as outlined in the Public Records Act, are public records. Emails and texts with content that concerns City business with other City employees or officials or interested members of the public are likely public records even if they are sent to/from a personal account or device.
B. Ralph M. Brown Act
Each Councilmember should be mindful of all of the requirements of the Brown Act and the Open Government Ordinance contained at Milpitas Municipal Code I-310.1.00 in communicating with each other. A majority of the Council shall not use a series of telephone calls, a conference call, mass e-mailing or any other informal session to discuss or decide matters before the City Council. This type of communication would be considered a “serial meeting” in violation of the law.
Section 54952.2(b)(1) of the Brown Act prohibits a majority of members of a legislative body outside of a lawful meeting from directly or indirectly using a series of meetings to discuss, deliberate or take action on any item of business within the subject matter jurisdiction of the body. Paragraph (b)(2) expressly provides that substantive briefings of members of a legislative body by staff are permissible, as long as staff does not communicate the comments or positions of members to any other members.
A serial meeting is a series of meetings or communications between individuals in which ideas are exchanged among a majority of a legislative body (i.e., three council members) through either one or more persons acting as intermediaries or through use of a technological device (such as a telephone answering machine, or e-mail or voice mail), even though a majority of members never gather in a room at the same time. Serial meetings commonly occur in one of two ways; either a staff member, a member of the body, or some other person individually contacts a majority of members of a body and shares ideas among the majority (“I’ve talked to Councilmembers A and B and they will vote ‘yes.’ Will you?”) or, without the involvement of a third person, member A calls member B, who then calls member C, and so on, until a majority of the body has reached a collective concurrence on a matter.
1. Contacts with staff
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26 Staff can inadvertently become a conduit among a majority of a legislative body in the course of providing briefings on items of local agency business. To avoid an illegal serial meeting through a staff briefing:
a. Individual briefings of a majority of members of a legislative body should be “unidirectional,” in that information should flow from staff to the member and the member's participation should be limited to asking questions and acquiring information. Otherwise, multiple members could separately give staff direction thereby causing staff to shape or modify its ultimate recommendations in order to reconcile the views of the various members, resulting in an action outside a meeting.
b. Members should not ask staff to describe the views of other members of the body, and staff should not volunteer those views if known. c. Staff may present its viewpoint to the member but should not ask for the member's views and the member should avoid providing his or her views unless it is absolutely clear that the staff member is not discussing the matter with a quorum of the legislative body.
2. Contacts with constituents, bargaining unit representatives, developers, and lobbyists
As with staff, a constituent, bargaining group representative, developer, or lobbyist can also inadvertently become an intermediary who causes an illegal serial meeting. Constituents' unfamiliarity with the requirements of the Act aggravates this potential problem because they may expect a member of a legislative body to be willing to commit to a position in a private conversation in advance of a meeting. To avoid serial meetings via constituent conversations:
a. First, state the ground rules “up front.” Ask if the constituent has or intends to talk with other members of the body about the same subject; if so, make it clear that the constituent should not disclose the views of other members during the conversation.
b. Explain to the constituent that you will not make a final decision on a matter prior to the meeting. For example: “State law prevents me from giving you a commitment outside a meeting. I will listen to what you have to say and give it consideration as I make up my mind.” 53 Item # C6.
27 c. Do more listening and asking questions than expressing opinions. d. If you disclose your thoughts about a matter, counsel the constituent not to share them with other members of the legislative body.
3. Contacts with fellow members of the same legislative body Direct contacts concerning local agency business with fellow members of the same legislative body, whether through face-to-face or telephonic conversations, notes or letters, electronic mail or staff members, are the most obvious means by which an illegal serial meeting can occur. This is not to say that a member of a legislative body is precluded from discussing items of agency business with another member of the body outside of a meeting; as long as the communication does not involve a quorum of the body, no “meeting” has occurred. There is, however, always the risk that one participant in the communication will disclose the views of the other participant to a third or fourth member, creating an illegal serial meeting. Therefore, it is recommended you avoid discussing local agency business with a quorum of the body or communicating the views of other members outside a meeting.
C. Mail Processing
1. Members of the City Council may re ceive mail and other materials through City Hall.
2. All mail received and specifica lly addressed to the Mayor or a Councilmember shall be placed in the mail drawer for that person without first being opened.
3. General correspondence addressed to Councilmembers as a whole may be opened and delivered to all Councilmembers if appropriate.
D. Correspondence
1. The City Manager or designee is authorized to receive and take administrative action on all correspondence directed to the City Council.
The City Manager or designee may also respond to correspondence submitted to the full City Council on non-agenda items or authorize a staff member to respond. A courtesy copy is provided to each Councilmember.
2. Generally, correspondence relating to a specific City Council agenda item shall be distributed with the agenda report; correspondence received after the publication of agenda packets is to be compiled and distributed to the City Council prior to the City Council meeting.
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28 3. After the City Council has taken a position on an issue, official correspondence should reflect this position. While Councilmembers who may disagree with a position are free to prepare correspondence on such issues as private citizens, City letterhead, official City Council title, and staff support should not be utilized. In addition, City letterhead and staff support cannot be utilized for personal or political purposes.
E. City letterhead, logo, insignia and br and, as well as staff support cannot be utilized for personal or political purposes.
F. Council Communication to Planning Commission
1. The Mayor and Councilmembers should be mindful not to unduly influence the decision at the Planning Commission meeting so as not to get ahead of the process.
2. It is not appropriate for the Mayor or a Councilmember to make public comments at the Planning Commission meeting unless he/she is acting in his or her personal capacity. If/when the matter comes before the City Council, such member should recuse him or herself from the matter.
G. External Communication
1. The Mayor and Councilmember may communicate on behalf of the City through media interviews, letters, and newsletters. They may also be quoted in City issued press releases. Although the Mayor and Councilmember are able to express individual opinions, any communication made on behalf of the City shall be aligned with Council adopted policies, programs, priorities. City issued press releases will include a quote by Mayor and other quotes, if any, will be determined by the City Manager, based on related work by each Councilmember.
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29 CHAPTER VIII. Counc il Liaison Roles
The Mayor and Councilmembers serve on behalf of Milpitas as members of other governmental entities, committees and agencies.
A. City Council Liaison
1. All City Councilmembers shall serve as liaisons to other City Commissions which shall be approved by the full City Council. In serving as a liaison, a City Councilmember shall endeavor to attend all Commission meetings of the Commission to which he or she is assigned.
2. Statements made by t he City Council liaison about the City's official position should reflect the majority opinion of the City Council, which is defined by current or past official City Council action via City Council vote or consensus.
3. If the Mayor or a Counc ilmember wishes to attend the meeting of a Board, Agency, Committee or Task Force to which he/she has not been appointed to serve on by the City Council, the Mayor or Councilmember, as a courtesy, should advise the City representative(s), if any, as well as the respective chair, and should be mindful of the influence of his/her presence. If the presence of the Mayor or Councilmember shall constitute a quorum of the City Council, the meeting should be noticed as that of the City Council and all Councilmembers invited. An exception to this rule is when the Mayor or Councilmember observes only and does not speak at the meeting.
B. Milpitas Public Financi ng Authority, Milpitas Municipal Financing Authority, and Housing Authority Commission.
The Mayor and Councilmembers serve as the members of the Milpitas Public Financing Authority. Milpitas Municipal Financing Authority, and Housing Authority Commission.
C. Regional Boards and Outside Agency Representatives.
1. The role of a Member on regional Boards will vary depending on the nature of the appointment.
2. Reporting. Council representatives to Regional Boards shall keep the Mayor and Councilmembers informed of ongoing business through short written reports to the Mayor and Councilmembers or update reports to the City Council during the "Mayor and Councilmember Reports" opportunity on the City Council meeting agenda.
3. In the event the prim ary assigned liaison is unable to attend a particular meeting, he or she should notify the chair of the board/agency, and the 56 Item # C6.
30 appointed alternate Council representative, or Mayor, should attend in the place of the primary.
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CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Authorize City Manager’s Response Letter to the December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed” (Staff Contact: Lauren Lai, Finance Director, 408-586-3111; and Michael Mutalipassi, City Attorney, 408-586-3040)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 2/21/2023
Recommendation: Authorize the City Manager to send a letter in response to the December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed” pursuant to Penal Code Section 933.
Background:
On December 14, 2022, the City of Milpitas received the Santa Clara County Civil Grand Jury final report titled “Show Me the Money: Financial Transparency Needed”. The Grand Jury listed a finding and recommendation in regard to monthly treasurer reports required under Government Code section 41004.
Pursuant to California Penal Code section 933(c), the City is required to provide a response to the Presiding Judge of the Superior Court no later than March 14, 2023.
Analysis:
Government Code section 41004 states that the City Treasurer will regularly, at least once each month, submit to the City Clerk a written report and accounting of all receipts, disbursements, and fund balances. The City Treasurer shall file a copy with the legislative body. Pursuant to the Milpitas Municipal Code (“MMC”), the duties of the City Treasurer are transferred to the City Manager who has delegated those duties and responsibilities to the Finance Director. The Finance Director presents the City Council with a number of regular periodic reports including the Accounts Payable Claims (disbursement) Report, Overtime Report, City Manager Contract Authorization Report, Fiscal Update Report (including both the General Fund and Enterprise Funds), Claims Report, Investments Report, and Annual Comprehensive Financial Report (ACFR). As Government Code section 41004 does not specify any particular form treasurer’s report, the City’s existing practices substantially comply with the requirements of Government Code section 41004.
On December 14, 2022, the Santa Clara County Civil Grand Jury issued a final report on its investigation into section 41004 reports. Because section 41004 relates to the municipal affairs and governance of a City, it applies only to general law cities. It does not apply to charter cities. The Civil Grand Jury investigated nine general law cities within the Santa Clara County. The grand jury found that seven of the nine general law cities, including Milpitas, were noncompliant with section 41004. (The grand jury found that Cupertino was initially noncompliant, but it took corrective action during the course of the investigation.)
With regard to Milpitas, the grand jury found that the Finance Director’s reports are well-prepared, indicating that those reports contain all of the necessary disclosures. However, it found the City out of compliance because those reports are not filed on a monthly basis. The grand jury recommends that the Finance Director file a monthly report with the City Clerk and present that report to the City Council.
Attached is a draft response to the grand jury report pursuant to Penal Code section 933. The response partially disagrees with the finding of the grand jury based on the City’s contention that the reports prepared by the Finance Director provide all of the section 41004 information, are transparent, and well prepared.
Nonetheless the City agrees that its Finance Director will develop a monthly report and file a copy with the City 58 Item # C7.
Clerk and City Council. Staff recommends that the City Council authorize the City Manager to send the attached letter in response to the December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed” pursuant to Penal Code section 933.
Policy Alternatives:
Alternative 1:
Not responding to the Santa Clara County Civil Grand Jury final report on “Show Me the Money: Financial Transparency Needed” as required by California Penal Code section 933.
Pros: None
Cons: Pursuant to Penal Code Section 933(c), the City is required to provide a response to the Presiding Judge of the Superior Court. Not responding as directed could result in legal consequences imposed upon the City.
Reason not recommended:
The City will be out of compliance with section 933 and may face legal consequences.
Fiscal Impact:
None
California Environmental Quality Act:
Approval of the recommendation is not an activity defined as a “project” under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines 15061(b) (3) and 15378(b)(4) either because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment and/or because the action is financial and/or administrative and does not directly impact the environment.
Recommendation:
Authorize the City Manager to send a letter in response to the December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed” pursuant to Penal Code section 933.
Attachments:
1. City of Milpitas Response to December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed”
2. December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed”
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455 EAST CALAVERAS BOULEVARD , MILPITAS , CALIFORNIA 95035 -5479 PHONE: 408 -586 -3040, FAX: 408 -586 -3056 , www.milpitas.gov
February 10, 2023
Via U.S. Mail
Honorable Beth McGowen
Presiding Judge
Santa Clara County Superior Court
191 North First Street
San Jose, CA 95113
Re: City of Milpitas Response to December 14, 2022 Santa Clara County Civil Grand Jury Final Report “Show Me the Money: Financial Transparency Needed”
Dear Judge McGowen:
The City of Milpitas’ (“the City”) responds to the December 14, 2022 Grand Jury Final Report, “Show Me the Money: Financial Transparency Needed” (the “Report”). The City is providing this response pursuant to California Penal Code section 933.
FINDINGS
Finding 5: The City of Milpitas does not produce monthly treasurer’s reports as required by California Government Code section 41004.
City of Milpitas Response: The City of Milpitas partially disagrees with the Civil Grand Jury’s finding that the City does not produce monthly treasurer’s reports as required by California Government Code section 41004. The City of Milpitas’s Finance Director presents information to the City Council, in the form of periodic written reports, which include all of the information required by Government Code section 41004. These reports are the Accounts Payable Claims (disbursement) Report, Overtime Report, City Manager Contract Authorization Report, Fiscal Update Report (including both the General Fund and Enterprise Funds), Claims Report, Investments Report, and Annual Comprehensive Financial Report (ACFR). As Government Code section 41004 does not specify any particular form treasurer’s report, the City’s existing practices substantially comply with the requirements of Government Code section 41004.
RECOMMENDATIONS
Recommendation 5: The Civil Grand Jury recommends that the City of Milpitas comply with California Government Code section 41004 by producing monthly
C I T Y O F M I L P I T A S
O F F I C E O F T H E C I T Y M A N A G E R
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Response to Grand Jury
February 10, 2023
treasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.
City of Milpitas Response: Though City’s existing practice and periodic reports provided to the City Council substantially comply with Government Code section 41004, the City is in the process of developing a single monthly report consolidating all of the Government Code section 410004 information in one place. The City expects that report to be developed by July of 2023.
This completes the City of Milpitas’ response to the Report per section 933.
Sincerely,
Steven McHarris
City Manager
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Release date here Page 0 of 22
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2022 Santa Clara County
Civil Grand Jury
December 14, 2022
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TABLE OF CONTENTS
GLOSSARY AND ABBREVIATIONS ...................................................................................... 2 SUMMARY ................................................................................................................................... 3 BACKGROUND ........................................................................................................................... 4 METHODOLOGY ....................................................................................................................... 5 INVESTIGATION ........................................................................................................................ 6 CONCLUSION ........................................................................................................................... 11 FINDINGS AND RECOMMENDATIONS ............................................................................. 12 REQUIRED RESPONSES ......................................................................................................... 15 APPENDIX ................................................................................................................................. 16 REFERENCES ............................................................................................................................ 19
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GLOSSARY AND ABBREVIATIONS
Government Code, Section
41004
California Government Code section 41004 states :
“Regularly, at least once each month, the city treasurer shall submit to the city clerk a written report and
accounting of all receipts, disbursements, and fund
balances. The city treasurer shall file a copy with the legislative body.”
Treasurer’s Reports
The reports required by Government Code section 41004
may have various styles and titles. For purposes of this report, the Civil Grand Jury will refer to these reports throughout as "treasurer's reports."
Charter City
Article XI, section 3(a) of the California Constitution authorizes the adoption of a city charter and provides that the charter has the force and effect of state law. Article XI, section 5(a), the "home rule" provision, grants to charter cities the ability to govern over "municipal affairs."
There are six c harter cities in Santa Clara County: San José, Palo Alto, Santa Clara, Sunnyvale, Gilroy, and
Mountain View.
General Law City
A general law city may only have a form of government
authorized by state general law . A city that has not
adopted a charter is bound by the state’s general laws even with respect to municipal affairs.
There are nine general law cities and towns in Santa Clara County: Los Altos, Los Altos Hills, Los Gatos , Milpitas, Campbell, Monte Sereno, Cupertino, Saratoga and
Morgan Hill. The scope of this investigation is limited to general law cities.
GAAP Generally Accepted Accounting Principles : a set of accounting rules and s tandards established by the
accounting industry.
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SUMMARY
General law cities in California are required to comply with California Government Code section 41004 (Section 41004), which states, “at least once each month, the city treasurer shall submit to the city clerk a written report and accounting of all receipts, disbursements, and fund balances.
The city treasurer shall file a copy with the legislative body.” The benefit of the law is to ensure financial accountability and public transparency as well as to foster better fiscal affairs. Treasurer's reports provide city c ouncils with timely and accurate financial information necessary to make reliable and sound decisions.
The 2022 Santa Clara County Civil Grand Jury (Civil Grand Jury) found that there is widespread noncompliance with this state requirement throughout Santa Clara County (County) by the general law cities . As of the date of this report, six of the nine general law cities 1 in the County are noncompliant with this state law: Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, and Monte Sereno. Additionally, the City of Cupertino was initially noncompliant until the city took corrective action during the Civil Grand Jury’s investigation. The City of Saratoga and City of Morgan Hill were the only two cities compliant prior to the investigation.
Based on responses from city officials, the Civil Grand Jury determined that there is a widespread misunderstanding among these general law cities in the County regarding Section 41004 reporting requirements. The Civil Grand Jury recommends that the noncompliant cities – Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, and Monte Sereno – comply with Section 41004.
1 The Town of Los Altos Hills and the Town of Los Gatos are general law cities. 65 Item # C7.
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BACKGROUND
The State Legislature established the office of c ity treasurer by enactment of California Government Code, Title 4 - Government of Cities, Division 3 - Other Officers, Chapter 3 - City Treasurer. The statutory duties for city treasurers may generally be found in the following sections:
Section 41001: The city treasurer shall receive and safely keep all money the treasurer receives.
Section 41002: (a) The city treasurer shall comply with all laws governing the deposit and securing of public funds and the handling of trust funds in their possession; and (b) if the city has issued bonds, the city treasurer shall use a system of accounting and auditing that adheres to generally accepted accounting principles.
Section 41003: The city treasurer shall pay out money only on warrants signed by legally designated persons.
Section 41004: Regularly, at least once each month, the city treasurer shall submit to the city clerk a written report and accounting of all receipts, disbursements, and fund balances.
The city treasurer shall file a copy with the legislative body.
Pursuant to California Government Code section 36502, the city treasurer is an elective office.
California Government Code section 36508 and California Elections Code section 9222 permit cities to submit to the electors the question of whether the city treasurer position should be an appointive office. In that instance, the financial duties assigned by the state statutes to the city treasurer are transferred from an elected tr easurer to an appointed officer if approved by the electorate. Only one general law city in the County, Morgan Hill, continues to have an elected city treasurer, who serves for four years. All other cities in the County have opted to assign city treasurer duties to senior administrative staff.
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METHODOLOGY
Upon receiving a complaint regarding G overnment Code section 41004 noncompliance in Cupertino, the Civil Grand Jury decided to expand the investigation to review all nine general law cities in the C ounty: Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, Monte Sereno, Cupertino, Saratoga, and Morgan Hill. From March to August 2022, the Civil Grand Jury began the process by polling these Cities to determine if they produced treasurer’s reports.
The Civil Grand Jury took the following steps:
• Contacted a total of 22 officials across nine cities who were responsible for tasks relevant to the topic of this report.
• Reviewed relevant sections of the California Government Code, California Elections Code, and examined the ordinances, policies, and memos of each city relevant to their city treasurer duties.
• Reviewed published city council and city committee agendas relevant to Section 41004.
• Reviewed other relevant city documents, including but not limited to financial audits, city organizational charts, and relevant job descriptions.
• Verified the six most recent treasurer’s reports of each city, if submitted.
The Civil Grand Jury inspected the contents of each report to verify the inclusion of the required elements: monthly disbursements, receipts, and fund balances. The Civil Grand Jury also determined whether the reports were published at least once each month to be compliant with Section 41004.
It should be noted that most cities do not call their report “Treasurer’s Report.” Appendix A provides links to examples of compliant Section 41004 reports, showcasing variations in terms of report name, style, layout, and appearance.
The Civil Grand Jury used the 2011-2012 Solano County Civil Grand Jury report entitled “City Treasurer Functional Review” as a reference for this report.
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INVESTIGATION
All interviews and email correspondence were designed to determine if general law cities complied with Section 41004. To be deemed compliant, a city must produce a financial document at least once each month that details all of the following: monthly disbursements, receipts, and fund balances – and must be filed with the legislative body. Six months of repor ts were requested to verify an existing track record. Data collection and verification took place from March to July 2022.
The results of this investigation are depicted in Table 1 below.
Table 1. Section 41004 Compliance Among Nine General Law Cities
City/Town Compliant Noncompliant
Los Altos X
Los Altos Hills X
Los Gatos X
Milpitas X
Campbell X
Monte Sereno X
Cupertino X*
Saratoga X
Morgan Hill X
*During the investigation, Cupertino started complying with Section 41004.
There are a number of reasons for cities’ noncompliance:
• Some cities were under the impression that the Section 41004 mandate was a discretionary guideline.
• Others adopted the practice of other cities that did not produce the requisite monthly reports.
However, the primary error among the cities was that they produced abbreviated reports that omitted required information such as receipts, disbursements, and fund balances. Some of the deficient reports lacked substance, with abbreviated information presented without context or details.
The Civil Grand Jury believes there is no fiscal impact involved in complying with Section 41004.
Outside resources should not be required since existing staff already make some financial reports, collect this type of data, and should be able to produce treasurer’s reports. Therefore, each of the deficient cities can be compliant with minimal effort or burden.
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Noncompliant Cities and Towns
Los Altos
The City of Los Altos does not have an elected city treasurer. Further, the Los Altos Municipal Code does not specifically state which official performs the duties of a city treasurer . Los Altos Municipal Code Section 2.01.060, however, provides that the city manager is the administrative head of the city and is specifically empowered “keep the council at all times fully advised as to the financial condition and needs of the city.” In the City of Los Altos, monthly treasurer’s reports are not prepared and submitted to the city clerk in accordance with Section 41004.
At the time of the Civil Grand Jury inquiry in June 2022, the City of Los Altos did not submit any treasurer’s reports. According to the C ity of Los Altos , Government Code section 37208 indemnified them from the Section 41004 mandate. However, the language of Government Code Section 37208 refers to payroll warrants or checks and makes no mention of the reporting required by Section 41004, which requires a report of “receipts, disbursements and general fund balances.” Moreover, the language of Government Code Section 37208 neither excuses a city from complying with Section 41004 nor makes any reference to Section 41004.
Further, the city erroneously noted that its Generally Accepted Accounting Principles (GAAP) policy on financial reporting excused noncompliance with Section 41004 reporting requirements.
In 2015, t he city adopted a “Financial Policy” that reads in part, “The city’s accounting and financial reports are to be maintained in accordance with GAAP. ” GAAP accounting does not address the Section 41004 mandated requirements.
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The Civil Grand Jury determined that the C ity of Los Altos does not produce t reasurer’s reports and thus is noncompliant.
Los Altos Hills
The Town of Los Altos Hills does not have an elected city treasurer. The town’s Municipal Code is silent on who performs the duties of the t reasurer; however, the Civil Grand Jury learned that the treasurer responsibilities fall to the director of administrative services.
The Civil Grand Jury received monthly treasurer ’s reports in June 2022. Upon inspection, however, they contained only disbursements and lacked receipts as well as fund balances; thus the reports are incomplete and noncompliant.
Los Gatos
The Town of Los Gatos does not have an elected city treasurer. The town’s Municipal Code Section 2.30.035 delegates the responsibility of the treasurer and the ability to assign those duties to the town manager. The director of finance is responsible for the town’s financial matters. The Town of Los Gatos produces quarterly reports, not monthly reports as required by Section 41004.
While the disbursements, receipts, and fund balances are in the reports, they must be published at least once each month to comply with Section 41004. Because the production intervals are quarterly, the Town of Los Gatos is not in compliance.
Milpitas
The City of Milpitas does not have an elected city treasurer. Milpitas Municipal Code section VI- 1-3.02 vests the duties of a city treasure r with the city manager, who is empowered to appoint a city treasurer pursuant to Section VI-1-3.04. In the City of Milpitas, the finance director produces weekly disbursement reports, quarterly receipt and investment reports for the general and special districts’ funds, and annual reports for all other reporting.
At the time of inquiry in June 2022, the Civil Grand Jury noted well -prepared reports. However, the frequency of report submission does not meet Section 41004 criteria, which requires monthly reports. Reports showing all receipts, disbursements, and fund balances must be filed with the city clerk at least once each month. Due to submission infrequency, the C ity of Milpitas is not in compliance.
Campbell
In November of 2010, voters in the C ity of Campbell approved Measure O, which changed the office of the city treasurer (and city clerk) from an elected to an appointed office. The City of 70 Item # C7.
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Campbell’s Municipal Code is silent on who has officially assumed those duties.2 The Civil Grand Jury learned that the city’s finance director has the responsibilities of a treasurer and oversees the preparation of financial reports. The reports are prepared by the accounting clerk, reviewed by the finance manager and the finance director, and approved by the city manager for inclusion in the council packet.
At the time of inquiry in June 2022, 21 reports were submitted. The submitted documents had no payroll records and accounts payable balances with paid or disbursed funds. Additionally, the required information was not published at least once each month.
The City of Cam pbell’s submitted reports do not comply with S ection 41004 because disbursements, receipts, and balances are not filed at least once each month.
Monte Sereno
The City of Monte Sereno does not have an elected city treasurer. The Monte Sereno Municipal Code section 2.04.010 designates the c ity manager as the director of finance and tasks the c ity manager with “performing all duties of City treasurer as set forth in Government Code sections 41000 et seq.” At the time of inquiry in June 2022, six treasurer ’s reports were received by the Civil Grand Jury. While the reports did contain the required fund balances, the receipts and disbursements were not compliant with the Section 41004 requirement.
Compliant Cities
Cupertino
The City of Cupertino does not have an elected city treasurer. The City of Cupertino’s Municipal Code section 2.24.030 states:
The treasurer shall make monthly reports which conform to the requirements of Government Code Section 41004. Said reports shall be delivered to the City Council, city manager and made available for review by such other persons who may so request.
Until 2022, no staff member for the City of Cupertino had been preparing and delivering a monthly treasurer’s report to the Cupertino City council. However, during the Civil Grand Jury's
2 The City of Campbell’s Municipal Code does not appear to have been updated. The City of Campbell’s Municipal Code section 2.08.010 still states that the elected officers shall be those designated by general laws, which includes a city treasurer. Further, the code has other references to an elected city treasurer. (See Sections 2.16.040 [city treasurer compensation] and 2.16.010 [establishment of salaries].) 71 Item # C7.
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investigation, the belated monthly t reasurer’s reports for January and February 2022 were published and placed on the Cupertino Audit Committee agenda.
The Civil Grand Jury recognizes the action taken by the City of Cupertino as soon as it was brought to their attention. The City of Cupertino is now compliant with Section 41004 as of March 2022, despite the stated history of not submitting the required reports.
Saratoga
The City of Saratoga does not have an elected city treasurer. The City of Saratoga Municipal Code section 2-20.035 states that the city manager shall serve as the city treasurer and be responsible for “other duties and responsibilities as required by law to be performed by the City Treasurer.” Thus, the city manager is responsible for the preparation and submission of monthly treasurer’s reports.
The Civil Grand Jury verified in June 2022 that regular monthly treasurer’s reports are filed with the City of Saratoga and are fully compliant with Section 41004. These reports can also be found by the public on the city’s website. An example is shown in Appendix A.
Morgan Hill
The City of Morgan Hill has an elected city treasurer. The treasurer, in conjunction with the finance director, prepares the treasurer’s reports.
The Civil Grand Jury verified in June 2022 that regular monthly treasurer’s reports are produced.
The reports contain all the required components of disbursements, receipts, and fund balances.
Thus, the C ity of Morgan Hill is compliant with Section 41004. A compliant Morgan Hill treasurer’s report is shown in Appendix A.
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CONCLUSION
Within the County, there is widespread noncompliance with California Government Code section 41004 by the general law cities. The Civil Grand Jury commends the cities of Saratoga and Morgan Hill for being in full compliance and notes the City of Cupertino’s quick action to become compliant. The Civil Grand Jury recommends that the noncompliant cities of Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, and Monte Sereno comply with Section 41004. This is to be done by producing treasurer’s reports at least once each month containing the required disbursements, receipts, and fund balance information. The benefit of implementing this recommendation overshadows any limited cost impact since existing staff could compile the report. In short , there is great benefit in producing these reports , as they improve financial transparency to the residents of the cities.
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FINDINGS AND RECOMMENDATIONS
It is recommended that noncompliant cities start producing treasurer’s reports as required by law.
Some cities produce abbreviated information that does not include requisite financial information as defined in state Government Code section 41004. Some cities produce requisite reports, but not on a monthly basis.
Finding 1
The City of Los Altos is not submitting monthly treasurer’s reports in compliance with California Government Code section 41004.
Recommendation 1
The City of Los Altos should comply with Government Code section 41004 by submitting monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances and by filing those reports with the city. This recommendation should be implemented by March 15, 2023.
Finding 2
The City of Los Altos does not produce t reasurer’s reports in compliance with California Government Code section 41004. The reason provided for non- compliance was that the City of Los Altos’ financial policy does not require the preparation and submission of treasurer’s reports.
It is an erroneous belief that internal policies excuse compliance with Government Code section 41004.
Recommendation 2
The City of Los Altos should amend its financial policy to require that monthly treasurer’s reports be prepared and submit ted in accordance with California Government Code section 41004 by March 15, 2023.
Finding 3
The Town of Los Altos Hills produces monthly treasurer’s reports but the content of those reports lacks monthly disbursements, receipts, and fund balances required by California Government Code section 41004.
Recommendation 3
The Town of Los Altos Hills shoul d update their existing monthly reports to include monthly disbursements, receipts, and fund balances by March 15, 2023.
Finding 4
The Town of Los Gatos produced reports that contain the required content but does not produce the treasurer’s reports on a monthly basis as required by California Government Code section 41004.
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Recommendation 4
The Town of Los Gatos should produce its reports on a monthly basis to comply with California Government Code section 41004 by March 15, 2023.
Finding 5
The City of Milpitas does not produce monthly t reasurer’s reports as required by California Government Code section 41004.
Recommendation 5
The Civil Grand Jury recommends that the C ity of Milpitas comply with California Government Code section 41004 by producing monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.
Finding 6
The City of Campbell does not produce monthly t reasurer’s reports as required by California Government Code section 41004.
Recommendation 6
The City of Campbell should comply with California Government Code section 41004 by producing monthly t reasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.
Finding 7
The City of Monte Sereno does not produce monthly treasurer’s reports as required by California Government Code section 41004.
Recommendation 7
The City of Monte Sereno should comply with California Government Code section 41004 by producing monthly t reasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.
Finding 8
When the Civil Grand Jury began this investigation, the City of Cupertino was not in compliance with California Government Code section 41004. However, s tarting in March 2022, the C ity of Cupertino began producing treasurer’s reports compliant with Section 41004.
Recommendation 8
The City of Cupertino should maintain compliance with California Government Code section 41004. Continued compliance is recommended.
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Finding 9
The Civil Grand Jury commends the C ity of Saratoga for producing monthly treasurer’s reports that include disbursements, receipts, and fund balances. The City of Saratoga is in full compliance with California Government Code section 41004.
Recommendation 9
No recommendation.
Finding 10
The Civil Grand Jury commends the elected city treasurer for producing monthly t reasurer’s reports that include monthly disbursements, receipts, and fund balances. The City of Morgan Hill is in full compliance with California Government Code section 41004.
Recommendation 10
No recommendation.
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REQUIRED RESPONSES
Pursuant to California Penal Code section 933(b) et seq. and California Penal Code section 933.05, the Civil Grand Jury requests responses from the following governing bodies:
Responding Agency Findings Recommendations
City of Los Altos 1, 2 1, 2
Responding Agency Findings Recommendations
Town of Los Altos Hills 3 3
Responding Agency Findings Recommendations
Town of Los Gatos 4 4
Responding Agency Findings Recommendations
City of Milpitas 5 5
Responding Agency Findings Recommendations
City of Campbell 6 6
Responding Agency Findings Recommendations
City of Monte Sereno 7 7
Responding Agency Findings Recommendations
City of Cupertino 8 8
Responding Agency Findings Recommendations
City of Saratoga 9
Responding Agency Findings Recommendations
City Treasurer of Morgan Hill 10
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APPENDIX A: EXAMPLES OF COMPLIANT TREASURER’S
REPORTS
On the following pages are two examples of monthly treasurer’s reports that contain the required disbursements, receipts, and starting and ending f und balances and are therefore compliant with California Government Code section 41004. They are included to show that there are various names and formats that the reports may take. Following the examples are links to the full reports for ease of access.
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Example 1. Page 3 of 7 from Saratoga August 2022 Treasurer’s Report
https://legistarweb-
production.s3.amazonaws.com/uploads/attachment/pdf/1578630/Treasurer_Report_for_August_ 2022.pdf
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Example 2. Page 12 of 21 from Morgan Hill March 2022 Financial and Investment Report
https://www.morgan-hill.ca.gov/DocumentCenter/View/40944/March-2022-Financial-and- Investment-Report-PDF
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REFERENCES
Bibliography
Campbell City Council meetings: December 7, 2021-June 7, 2022. Regular agenda item from the Finance Department, titled Approving Bills and Claims. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).
Campbell City Council meeting: February 1, 2022. Regular agenda item from the F inance Department, titled Investment Report – Quarter Ending December 2021. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).
Campbell City Council meeting: May 3, 2022. Regular agenda item from the Finance Department, titled Investment Report – Quarter Ending March 2022. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).
Campbell City Council meetings: December 7, 2021 – June 7, 2022. Regular agenda item from the Finance Department, titled Monthly Investmen t Transactions Report. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).
Campbell City Council meeting: April 25, 2022, Study Session Meeting of the Campbell City Council. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).
City of Cupertino, A- Payments to Chamber Jan 2015- Mar 2022. Report, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).
City of Cupertino Administrative Services Department Finance Division, Fiscal Year 2019- 2020 Comprehensive Annual Financial Report. https://cupertino.legistar.com/ (Accessed November 28, 2022).
City of Cupertino, Audit Committee meeting, May 23, 2022. https://cupertino.legistar.com/MeetingDetail.aspx?ID=923553&GUID=0C41F4A6-93D2-4B90- AAEB-7E5FF0F1EF8C&Search= (Accessed November 28, 2022).
City of Cupertino, B- Festivals – City Fees Waived & City Expenses. Report, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino City Council meeting , April 21, 2022: March 2022 Report of City -wide Fund Balances/Net Position. http://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino City Council meeting April 21, 2022: March 2022 Report of City -wide Receipts, Disbursements, and Cash Balances Cash Investments. htt p://cupertino.legistar.com/ (Accessed November 28, 2022).
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Cupertino City Council meeting, April 25, 2022. Administrative Services Department, Audit Committee Staff Report for March, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino City Council meeting, May 3, 2022. City Manager’s Office, City Council Staff Report. https://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino City Council meeting, May 19, 2022. Amended Agenda of the Cupertino City Council. https://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino Office of the City Clerk, Notice of Adjournment of the May 17, 2022. Notice, May 17, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino, Payment Register. Report, December 21, 2021. http://cupertino.legistar.com/ (Accessed November 28, 2022).
Cupertino, Resolution NO. 22- 015. Resolution, 2022. http://cupertino.legistar.com/ (Accessed November 28, 2022).
City of Lancaster, Excerpt from A Quick Summary for the Press and Researchers, https://www.cityoflancasterca.org/home/showpublisheddocument/10103/635775792210230000 (Accessed November 28, 2022).
Los Altos City Council meetings, Januar y, 2022 – May, 2022. Monthly Disbursement Listing. https://www.losaltosca.gov/calendar/month?field_microsite_tid=2131&field_microsite_tid_1=Al l (Accessed November 28, 2022).
Los Altos City Council meeting, May 24, 2022. Quarterly Investment Portfolio Report – Quarter Ended March 31, 2022. https://www.losaltosca.gov/citycouncil/page/city-council-meeting-155 (Accessed November 28, 2022).
Los Altos City Council meeting, March 8, 2022. Quarterly Investment Portfolio Report – Quarter Ended December 31, 2021. https://mccmeetingspublic.blob.core.usgovcloudapi.net/losaltosca- meet-419c5823741c494d9706451908d3061f/ITEM-Attachment-001- 0979a9a16c5c4dc898b8e8d7d4d4a6e1.pdf (Accessed November 28, 2022).
Los Gatos Town Council meeting, February 15, 2022. Second Quarter Investment Report (October through December 2021) for Fiscal Year 2021/22.
https://mccmeetings.blob.core.usgovcloudapi.net/losgatos-pubu/MEET-Packet- 94e86df454424b8b95ccc3f6eff96e41.pdf (Accessed November 28, 2022).
Los Gatos Town Council meeting, May 17, 2022. Third Quarter Investment Report (January through March 2022) for Fiscal Year 2021/22
https://mccmeetings.blob.core.usgovcloudapi.net/losgatos-pubu/MEET-Packet- 997ea555609c4af9b94eeb28b34fc7e3.pdf (Accessed November 28, 2022).
Monte Sereno City Council meetings: December 28, 2021 – June 3, 2022. Regular agenda item from the Finance Department submitting the monthly Treasurer’s Report. https://montesereno.civicweb.net (Accessed November 28, 2022). 82 Item # C7.
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City of Morgan Hill Finance Division, Monthly Financial and Investment Reports . March 31, 2022. https://www.morgan-hill.ca.gov/DocumentCenter/View/40944/March-2022-Financial-and- Investment-Report-PDF (Accessed November 28, 2022).
City of Saratoga Administrative Services, Treasurer’s Report for the Month Ended August 31, 2022. Final Report, October 5, 2022. https://legistarweb- production.s3.amazonaws.com/uploads/attachment/pdf/1578630/Treasurer_Report_for_August_ 2022.pdf (Accessed November 28, 2022).
Solano County 2011-2012 Grand Jury, City Treasurer Functional Review . Final Report, January 12, 2012. https://solano.courts.ca.gov/wp-content/uploads/2020/01/111227-City-Treasurer- Final.pdf (Accessed November 28, 2022).
California Government Code Sections 34000 – 45345.
Los Gatos Municipal Code 2.30.035.
Milpitas Municipal Code VI-1-3.04.
Interviews
Interviews were conducted with 16 individuals between April 25, 2022, and June 16, 2022.
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This report was ADOPTED by the 2022 Santa Clara County Civil Grand Jury on this 14th day of December, 2022.
______________________________
Karen Enzensperger
Foreperson
84 Item # C7.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Approving a Site Development Permit to Develop a New Two-story, Single-family Residence with an Attached Accessory Dwelling Unit, an In-Ground Swimming Pool/Spa, and Associated Site Improvements on a Vacant 4.29-acre Lot Located in the R1-H Single-family Residential Zoning District with a Hillside Combining District at 531 Vista Ridge Drive (Staff Contact: Ned Thomas, Planning Director, 408-586-3273)
Category: Consent Calendar-Community Development
Meeting Date: 2/21/2023
Recommendation: Recommendation: Consider the Exemption in accordance with CEQA and adopt a resolution approving Site Development Permit No. SD22-0001, subject to the attached Conditions of Approval
BACKGROUND:
On February 15, 2022, Bridgett Shank of Timbre Architecture submitted a Site Development Permit application to develop a new 3,347-square foot, two-story single-family residence with a 1,012-square foot attached garage on a vacant 4.29-acre lot (Lot 16 of the Spring Valley Heights subdivision) located at 531 Vista Ridge Drive. The proposed project includes an attached 1,200 ADU, in-ground pool and spa, deer fencing up to eight- feet in height, landscaping, and associated site improvements. The zoning designation for this property is Single-Family Residential (R1) with a Hillside (H) Combining District. Per Milpitas Municipal Code (MMC) Section XI-10-45.09-2, no building permit shall be issued for the construction or expansion of a single-family structure in the Hillside (H) Combining District until such structure has received a site and architectural review approval by the Planning Commission (PC) and City Council (CC). On January 25, 2023, the Planning Commission held a duly noticed public hearing on this item and voted unanimously (6-0, one absent) to approve the proposed project and also recommend approval by the City Council. A copy of Planning Commission Resolution No. 23-002 is attached to this report.
ANALYSIS:
Planning staff recommends that the City Council review and approve a resolution to allow the development of a single-family residence with an attached four-car garage, attached Accessory Dwelling Unit (ADU), in-ground pool and spa, deer fencing up to eight-feet in height, landscaping, and associated site improvements on a vacant lot located at 531 Vista Ridge Drive. The project site is located on the southeastern edge of the City of Milpitas, adjacent to properties with the same single-family hillside zoning designation. Unincorporated Santa Clara County properties are located further to the north and east.
The proposed residence is designed to be compatible with the other homes in the area by incorporating strong lines and a mix of high-quality metal or wood and earth tone materials that reflect with the rural character of the neighborhood. The blend of architectural forms and a variety of finishes creates an attractive front elevation.
The exterior materials include exterior siding in a natural cedar wood color, stacked gray limestone cladding, dark bronze color standing seam metal roofing and garage door. The doors and windows will have a dark bronze color to match the roof and garage door. The roof deck will have a metal guardrail with glass panels. All exterior materials and finishes work together as a palette of earth tone colors creating harmony with the surroundings. The colors and materials proposed are complementary to the character of the rural, neighboring residences.
In accordance with MMC Section XI-10-45.09-7, and as outlined in the attached Planning Commission staff report and resolution, the City Council shall consider the following guidelines in its review of the proposed project:
85 Item # C8.
(a) Avoid unreasonable interference with views and privacy. The height, elevations and placement on the site of the proposed main or accessory structure, when considered with reference to the nature and location of the residential structures on adjacent lots, will avoid unreasonable interference with views and privacy.
(b) Preserve Natural Landscape. The natural landscape will be preserved insofar as practicable by designing structures to follow the natural contours of the site and minimizing tree and soil removal.
(c) Minimize Perception of Excessive Bulk. The design of the proposed main and/or accessory structure(s) in relation to the immediate neighborhood should minimize the perception of excessive bulk.
(d) Impairment of Light and Air. The proposed main or accessory structure(s) shall not unreasonably impair the light and air of adjacent properties nor unreasonably impair the ability of adjacent properties to utilize solar energy.
(e) Grading. All grading shall be kept to an absolute minimum and shall comply with the grading ordinance criteria.
The project, including the home, attached garage, and attached ADU, features a creative design, with a minimal building footprint and substantial setbacks from neighboring property lines to alleviate unreasonable interference with views and privacy. The majority of land around the residence and associated driveway will be preserved as natural landscape similar to nearby vacant properties and designated open space lots in the immediate area.
The perception of excessive bulk has been minimized by the incorporation of varying rooflines including a partial second-story floor, a clear delineation of colors and materials, and the punctuation of walls along the front and side elevations. The proposed maximum height of the residence at 25-feet and 6-inches is within the 27-feet height limit, and all required building setbacks will substantially exceed the minimum standards to help mitigate potential impairment of light and air. In addition, the structure’s foundation follows the natural slope of the hillside to ensure minimal grading which will be 453 cubic yards (cy) of cut and 213 cy of fill. The estimated amount of cut is due to the excavation for the in-ground pool/spa (209 cy), driveway (117 cy), and landscaping (127 cy). Furthermore, the Architectural Review Committee of the Spring Valley Heights Homeowners Association provided a tentative approval letter for the proposed project design on August 8, 2022. As noted earlier in the report, the Planning Commission recommended Council approval of the project based on the required findings for approval.
POLICY ALTERNATIVE(S):
Alternative 1: Direct staff to draft a resolution to deny the project for review at a subsequent meeting.
Pros: The existing hillside lot is not developed and remains as open space, or a new or revised project could be proposed.
Cons: The applicant would need to either withdraw the application or resubmit revised plans for development of a new residence at this location.
Reason for Not Recommending: The proposed project meets the required findings for approval and is consistent with the City’s goals of supporting the development of new high-quality housing in all areas of the City, including appropriate hillside locations. Both staff and the Planning Commission are recommending approval of the proposed project.
FISCAL IMPACT:
If the proposed project is approved, the applicant will apply for building permits and pay associated fees. The new single-family home will increase the property value and tax revenues but will also increase the demand for City services, including public safety and utilities. The project is located within an existing residential subdivision with existing services nearby.
California Environmental Quality Act (CEQA):
The project is exempt from further environmental review under CEQA pursuant to Section 15303(a) for New Construction or Conversion of Small Structures including one single-family residence or a second dwelling unit 86 Item # C8.
in a residential zone. The Project proposes the new construction of a single-family residence with an attached garage and attached ADU within a residentially zoned area on a legally established parcel, and it can be seen with certainty that there is no possibility that these actions may have a significant effect on the environment.
As a separate and independent basis, the project is exempt from further CEQA review pursuant to Section 15183 of the CEQA Guidelines for projects consistent with a community plan, general plan or zoning. The project is consistent with the General Plan and the applicable zoning, and there are no significant environmental impacts peculiar to the project or its site.
RECOMMENDATION:
Adopt a resolution approving Site Development Permit SD22-0001, subject to the Conditions of Approval (attached to resolution), to allow development of a new single-family residence with an attached ADU and associated accessory structures and site improvements at 531 Vista Ridge Drive.
Attachments:
1. City Council Resolution No.
2. Planning Commission Staff Report dated January 25, 2023
3. Planning Commission Resolution No. 23-002
4. Project Plans
87 Item # C8.
RESOLUTION NO. XXXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING SITE DEVELOPMENT PERMIT NO. SD22-0001 TO CONSTRUCT A NEW HILLSIDE HOME
WITH AN ATTACHED ACCESSORY DWELLING UNIT, IN-GROUND POOL AND SPA, DEER FENCING
UP TO EIGHT-FEET IN HEIGHT, LANDSCAPING, AND ASSOCIATED SITE IMPROVEMENTS ON A VACANT 4.29-ACRE SITE IN THE R1-H SINGLE-FAMILY RESIDENTIAL ZONING DISTRICT WITH AN H HILLSIDE COMBINING DISTRICT LOCATED AT 531 VISTA RIDGE DRIVE AND MAKING CEQA
FINDINGS OF EXEMPTION
WHEREAS, the City of Milpitas, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and
WHEREAS, on September 28, 1982, the County of Santa Clara Board of Supervisors approved the final map for Tract 6744 to create the 26-lot subdivision known as the Spring Valley Heights neighborhood; and WHEREAS, on January 21, 1983, the City of Milpitas annexed Tract 6744 from the County of Santa Clara; and WHEREAS, on February 15, 2022, Bridgett Shank of Timbre Architecture (“Applicant” or “Permittee”) submitted an application for a development proposal to allow development of a 3,347-square foot, single-family residence up to 25 feet, six inches (two stories) in height, with a 1,012-square foot attached garage , 1,200-square foot attached Accessory Dwelling Unit, in -ground pool and spa, deer fencing up to eight -feet in height, landscaping, and asso ciated site improvements on a vacant 4.29 acre site (Lot 16 of the Spring Valley Heights subdivision) at 531 Vista Ridge Drive (APN:
042-30-029) (the “Project”). The Project site is zoned Single Family Residential - Hillside; and WHEREAS, the Planning Division completed an environmental assessment for the Project in accordance with the California Environmental Quality Act (CEQA), which assessment determined that the Project is exempt from environmental review under CEQA in accordance with CEQA Guidelines Section 15303 (New Construction and Conversion of Small Structures) and, as a separate and independent basis, CEQA Guidelines Section 15183 (Projects Consistent with a Community Plan, General Plan or Zoning); and
WHEREAS, on January 25, 2023, the City of Milpitas Planning Commission held a duly noticed public hearing on the subject application, at which time all those in attendance were given the opportunity to speak on the Project, and the Planning Commission unanimously (6-0, one absent) recommended approval of the Project to the City Council subject to Conditions of Approval per Planning Commission Resolution No. 23-002; and WHEREAS, on February 21, 2023, the City of Milpitas City Council held a duly noticed public hearing on the subject application, at which time all those in attendance were given the opportunity to speak on the Project; and NOW THEREFORE, the City Council of the City of Milpitas hereby finds, determines and resolves as follows:
SECTION 1: Recitals
The City Council has considered the full record before it, which may include, but is not limited to , such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and incorporated herein by reference.
SECTION 2: California Environmental Quality Act (CEQA) Findings The project is exempt from environmental review under CEQA pursuant to CEQA Guidelines Section 15303(a) (New Construction or Conversion of Small Structures ).The Project involves development of one single-family residence with an attached garage, attached ADU, and associated accessory structures and site improvements within a residentially zoned area on a legally established parcel, and it can be seen with certainty that there is no possibility that these actions may have a significant effect on the environment . As a separate and independent basis, the project is exempt from furthe r 88 Item # C8.
Resolution No. ____
2 environmental review under CEQA pursuant to CEQA Guidelines Section 15183 (Projects consistent with a Community Plan, General Plan or Zoning). The project is consistent with the General Plan and the R1-H Single-family Residential Zoning District with an H Hillside Combining District , and there are no significant environmental impacts peculiar to the project or its site.
SECTION 3: Site Development Permit Findings (Section XI-10-57.03(F)(1)) The City Council makes the following findings based on the evidence in the public record in support of Site Development Permit No. SD22-0001:
1. The layout of the site and design of the proposed buildings, structures and landscaping are compatible and aesthetically harmonious with adjacent and surrounding development.
As described within the staff report, the development's architectural design and site planning is aesthetically compatible with the neighboring properties, and the on-site grading plan minimizes changes to the natural topography. The proposed single-family residence incorporates earth tone colors and materials that complement both the site and existing neighborhood. Furthermore, the design of the proposed project will complement adjacent and surrounding development as the new residence will only have a part ial second-story floor and be built up to 44% of the allowed size for a main residence on the 4.29-acre lot in the Hillside Zoning Ordinance.
2. The Project is consistent with the Milpitas Zoning Ordinance.
Table 1 demonstrates the Project’s consistency with the applicable development standards of the R1-H Zoning District per Section XI-10-45 - "H" Hillside Combining District of the Milpitas Zoning Ordinance, including setbacks, height requirements, maximum impervious surface coverage, and parking.
Table 1 :
Summary of Development Standards
Standards Hillside Requirements Proposed – 4.67-acre lot Complies Front Setback
25 ft. minimum when avg.
slope is <16%.
Otherwise, 40 ft. minimum
206 ft. 9 in. (Avg. slope of
lot is 14.51%) Yes
Side Yard Setback 40 ft. minimum 134 ft. 8 in. to east
40 ft. to west Yes
Rear 40 ft. minimum 264 feet Yes
Size of Main Residence 10,000 sq. ft. maximum (lots
> 3 acres)
4,359 sq. ft. (including
attached garage) Yes
Size of Accessory
Structures
1,200 sq. ft. maximum per
individual structure
1,200 sq. ft. (attached ADU)
594 sq. ft. (attached
unenclosed patio cover)
N/A
Impervious Surfaces 30,000 sq. ft. maximum (lots
> 3 acres) 14,443 sq. ft. Yes
Building Height
(maximum) 27 ft. east of crestline
25 ft. 6 in.
Yes
Parking
Main Residence - Three
spaces required
ADU – One space required
Six spaces (four inside
garage & two outside) Yes
Due to the subject property’s location, the Project is also required to comply with the development standards in the City’s Hillside Combining District. Per Section XI-10-45.09-7 of the Zoning Ordinance, the Planning Commission and City Council shall consider the following guidelines in their review of proposed new 89 Item # C8.
Resolution No. ____
3 development. Staff has determined the home to be consistent with the Hillside Architectural Guidelines as demonstrated below. See Table 2 for consistency.
Table 2:
Hillside Zoning Ordinance Compliance
Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
(a) Avoid unreasonable interference with Views
and Privacy. The height, elevations and
placement on the site of the proposed main
or accessory structure, when considered
with reference to the nature and location of
residential structures on adjacent lots, will
avoid unreasonable interference with views
and privacy.
Consistent. Due to the proposed location and minimal
scale of the home in consideration to its maximum
allowable size outlined in Table 3, the development
will not substantially interfere with views and privacy to adjacent lots. In addition, the proposal exceeds all setback requirements, is within its 27-foot, two-story
height limit at 25-feet and 6-inches, and substantially setback from adjacent residences to the south and west, which minimizes interference with views and privacy.
The adjacent lot located immediately south of the
subject property at 529 Vista Ridge Drive is the only
other residence that would be nearby the subject
property. The residence is currently under construction as a one-story, single-family residence, and is sited
entirely on an up-sloped elevation and will not have
any immediate line of sight to the new proposed
residence. The lot immediately east and north of the
subject parcel is dedicated as Common Area only and
will not be developed with future residential uses.
Three other existing developed lots with single-family
residences located west of the subject parcel are on the other side of Vista Ridge Drive are also located on
higher elevations and are accessible from a different
street, Vista Spring Court. As such, these other
residences contain substantial rear setbacks and the
residences will not face each other. Additionally,
existing trees and established landscaping features
obstruct direct views of the other residences from 531
Vista Ridge Drive.
(b) Preserve Natural Landscape. The natural
landscape will be preserved insofar as
practicable by designing structures to follow
the natural contours of the site and
minimizing tree and soil removal.
Consistent. The project site is currently vacant and
undeveloped with no trees or shrubs on the proposed
building footprint. All existing trees are on the sloped portions of the lot where development will not occur.
As such, no trees will be removed. As currently
proposed, the design of the house is carefully sited to be built on the flattest portions of the lot, following the natural landscape and existing contours of the site to
limit cut and fill to an equal 453 cubic yards of cut and 213 cubic yards of fill. The amount of cut is due to the excavation for the pool/spa, driveway, and
landscaping.
(c) Minimize Perception of Excessive Bulk. The
design of the proposed main and /or
accessory structure(s) in relation to the
Consistent. The proposed design includes varying
rooflines, a clear delineation of different colors and
materials, and punctuation of certain front and side
facing elevations to remove the perception of bulk
90 Item # C8.
Resolution No. ____
4 Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
immediate neighborhood should minimize
the perception of excessive bulk.
within the two-story residence. The footprint of the
proposed home is also angled in its orientation to the
front property line and only contains a partial second
story, thus minimizing the perception of excessive
bulk. The overall building footprint of the main
residence on the 4.29-acre lot is consolidated, and the remaining portions of the lot will also remain
undeveloped.
(d) Impairment of Light and Air. The proposed
main or accessory structure(s) shall not
unreasonably impair the light and air of
adjacent properties nor unreasonably impair
the ability of adjacent properties to utilize
solar energy.
Consistent. The proposed home will not exceed the
maximum height limit for homes east of the crestline,
only has a partial second story, and exceeds all
minimum setbacks as required by the Hillside
development standards. The proposed home has a
combination of flat and minimally pitched roof
systems that could be used to utilize future solar
energy. With regards to adjacent properties, the lots to the north and east are reserved as Common Area and
the residence under construction to the south will be
located on a higher elevation greater than 170-feet
away. The residences to the west are also located
entirely on a higher elevation and are facing Vista
Spring Court from the proposed residence. As such,
the proposed project will not cause an impairment to
the adjacent properties access to light and air.
(e) Grading. All grading shall be kept to an
absolute minimum and shall comply with the
grading ordinance criteria.
Consistent. As designed, the proposed location of the
main dwelling is where the existing lot is relatively flat and the majority of the remainder of the lot is
substantially upsloping or down-sloping. The grading
is limited for construction of the driveway,
landscaping, and excavating for the in-ground pool and
integrated spa. The remainder of the existing upsloping and down-sloping topography of the lot will remain
minimally altered to preserve the existing natural
contours of the hillside.
3. The Project is consistent with the Milpitas General Plan.
As demonstrated in Table 3 below, the Project is consistent with the existing General Plan policies of the Milpitas 2040 General Plan:
Table 3:
General Plan Consistency
Policy Conformance
CD 7-1 Maintain the visual character of
hillsides, recognizing both the importance of the
exposure of hillside development from off-site
public views and the importance of providing
panoramic public views from and of hillsides.
Consistent. The proposed Project will not impact
the visual character of the hillside from the valley
floor or other viewpoints as the project site is
located over a half mile east of the crestline and the
new residence will be shielded by an existing hill
91 Item # C8.
Resolution No. ____
5 when viewed from the valley flo or. Project Plan
sheets G0.1 and G0.2 illustrate how the proposed
residence will not obstruct panoramic public views
from and of the hillsides.
CD 7-2 Minimize the alteration of existing
landforms and maintain the natural topographic
characteristics of the hillside areas, allowing only
minimal disruption.
Consistent. The proposed new residence will be
situated at the flattest portion of the lot to limit
disruption to the existing natural topography by
limiting cut to 453 cubic yards and fill to 213 cubic
yards for both construction phases. Substantial
grading (209 cubi c yards) is a result of the
excavation for the pool area at a vertical depth of
4-feet. The remaining 244 cubic yards of cut is for
the driveway and landscaping. The proposed
residence is naturally sited on the existing flattest
portion of the lot as the r emainder of the lot is
either significantly downsloping or upsloping.
Therefore, only minimal alterations to the existing
topographical characteristics of the lot are
proposed for the in-ground pool/spa, driveway, and
landscaping.
CD 7-3 Protect the natural character of hillside
areas by means of contour grading to blend
graded slopes and terraces with the natural
topography.
Consistent. Minimal contour grading will be
required for construction of the new residence due
to its siting on the flattest areas of the lot. All new contours will be designed to blend with the natural
existing site contours as demonstrated in the civil
drawings in the plan set. Grading of the driveway
follows the natural contours, does not require steep
cuts, and follows the natural grade of the existing
hillside.
CD 7-4 Avoid mass graded pads within hillside
areas. Smaller steps or grade changes should be
used over single, large, slope banks to the
greatest extent feasible.
Consistent. The building pad is propo sed at the
flattest portion of the lot and will necessitate only
minimal grading for the driveway and landscaping.
Grading has been substantially minimized in the
project, in that the siting follows the site's natural
contours, in an effort to preserve the natural terrain
quality. Other grading includes excavation for the
proposed in-ground pool and integrated spa along
an existing flat portion of the lot.
CD 7-5 Ensure that any change in hillside land
use is accompanied by appropriate safety
measures and that the environmental constraints
are adequately addressed especially with respect
to runoff and erosion.
Consistent. No changes are proposed to the
existing land use and zoning designation for the
subject site to be used as a single-family residence.
Prior to construction of the residence, all proposed
project construction and operational details will be
reviewed thorou ghly by applicable Departments
during the building permit review process. The
building permit application will be reviewed with
the latest adopted State and local building and
development codes, which will include standard
requirements such as Construction Best
Management Practices (BMPs) and an erosion and
92 Item # C8.
Resolution No. ____
6 sediment control plan to control runoff onto
adjacent properties.
CD 7-6 Require hillside development to
incorporate architecture, scale, massing, building
form, building color, roof materials, and
landscaping to reflect the natural hillside setting.
Consistent. The proposed Project’s low -profile
building design and earth tone materials and colors
will blend into the rural environment and only
includes a partial second story for reduced massing
and scal e. The exterior façade will include
materials such as natural cedar siding and stacked
gray limestone with metal materials and accents on
the roof, windows/doors, and garage door in a dark
bronze color to match. As demonstrated by Sheet
G.03, the 3D render ings show the new residence
with its earth-toned proposed colors and materials
that brings together the natural hillside topography
of the lot. Additionally, the proposed landscaping
materials are consistent with the Hillside
Landscaping Ordinance.
As described above, the Project is compatible and consistent with the surrounding uses and has been found to conform to the intent of the Milpitas 2040 General Plan designation. The proposed home is designed to fit in with the natural topographic features of the property and reduces the visual impact as viewed from the valley floor.
SECTION 4: City Council Approval
Based on the foregoing, the City Council hereby approves Site Development Permit No. SD22-0001 to allow the development of a new 3,347-square foot, single-family residence up to 25 feet, six inches (two stories) in height, with a 1,012-square foot attached garage, 1,200 -square foot attached ADU, in-ground pool and spa, deer fencing up to eight-feet in height, landscaping, and associ ated site improvements on a vacant 4.29 -acre hillside lot in the R1-H Single-family Residential Zoning District with an H Hillside Combining District located at 531 Vista Ridge Drive, based on the above findings and subject to the Conditions of Approval at tached hereto as Exhibit 1 and incorporated herein.
PASSED AND ADOPTED this _____ day of___________, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
_________________________________ __________________________ Suzanne Guzzetta, Acting City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
__________________________________
Michael Mutalipassi, City Attorney
93 Item # C8.
Resolution No. ____
7 94
Item # C8.
Resolution No. ____
8 EXHIBIT 1
CONDITIONS OF APPROVAL
SITE DEVELOPMENT PERMIT NO. SD22-0001
531 VISTA RIDGE DRIVE (APN 042-30-029)
GENERAL CONDITIONS
1. General Compliance. The applicant, including all successors in interest (collectively “Permittee”) shall comply with each and every condition set forth in this Permit. Site Development Permit No. SD2 2-0001 (“Permit”) shall have no force or effect and no building permit shall be issued unless and until all things required by the below -enumerated precedent conditions have been performed or caused to be performed and this Resolution has been recorded by the Permittee with the Santa Clara County’s Recorder Office and a copy shall be provided to the Planning Department. (P)
2. Effective Date. Unless there is a timely appeal filed in accordance with the Milpitas Zoning Code, the date of approval of this Permit is the date on which the decision-making body approved this Permit. (P)
3. Acceptance of Permit . Should Permittee fail to file a timely ap peal within twelve (12) calendar days of the date of approval of this Permit, inaction by Permittee shall be deemed to constitute each of the following:
a. Acceptance of this Permit by Permittee; and
b. Agreement by the Permittee to be bound by, comply with, and to do all things required of or by Permittee pursuant to all of the terms, obligations, and conditions of this Permit.
4. Permit Expiration. Pursuant to Section XI -10-64.06 of the Milpitas Zoning Code, this Permit shall become null and void if the activity permitted by this Permit is not commenced within two (2) years from the date of approval, or for a project submitted with a tentative map, within the time limits of the approved tentative map. Pursuant to Section XI-10-
64.06(B) of the Milpitas Zoning Code, an activity permitted by this Permit shall be deemed to have commenced when the Project:
a. Completes a foundation associated with the Project; or b. Dedicates any land or easement as required from the zoning action; or c. Complies with all legal requirements necessary to commence the use, or obtains an occupancy permit, whichever is sooner.
5. Time Extension. Pursuant to Section XI -10-64.07 of the Milpitas Zoning Code, unless otherwise provided by State law, Permittee shall have the right to request a one-time extension of the Permit if the request is made in writing to the Planning Division prior to the expiration date of the approval. (P)
6. Project Job Account. If Permittee’s project job account is at any time delinquent or below the required deposit amount, City will not continue to review or process the application until Permittee’s private job account is paid in full and the required deposit has been made. Additionally, prior to the issuance of any building permit or occupancy permit, as applicable, Permittee shall pay in full the project account balance and establish a remaining balance of at least twenty- five percent (25%) of the required initial deposit. (ALL)
7. Notice. Pursuant to California Government Code Section 66020, any protest filed in court relating to the imposition of fees, dedication, reservations, or other exactions to be imposed on the development project shall be filed within ninety (90) days after the date of the adoption of this Resolution. This provision serves as notice from the local agency to the Permittee that the ninety (90) day period in which the applicant may file a protest has begun under California Government Code Section 66020(d)(1). (P)
8. Cost and Approval. Permittee shall fully complete and satisfy each and every condition set forth in this Resolution and any other condition applicable to the Project to the sole satisfaction of the City. Additionally, Permittee shall be solely responsible and liable for the cost to satisfy each and every condition. Permittee shall pay all required fees and charges to City at the rate in effect at time of building permit issuance, or the rate in effect when the fees and charges are due and paid in full to City. There is no vesting of any fees or charges with the adoption of this Resolution. (P) 95 Item # C8.
Resolution No. ____
9 9. Conditions. Each and every condition set forth in this Exhibit shall apply to the Project and continue to apply to the Project so long as the Permittee is operating the Project under the permits and approvals in this Resolution. (P)
10. Compliance with Laws. The construction, use, and all related activity authorized under this Permit shall comply with all applicable local, state, and federal laws, rules, regulations, guidelines, requirements, and policies. (CA/P)
11. Previous Approvals. Permittee shall ab ide by and continue to comply with all previous City approvals, permits, or requirements relating to the subject property, unless explicitly superseded or revised by this Permit. (ALL)
12. Indemnification. To the fullest extent permitted by law, Permittee shall indemnify, defend with counsel of the City’s choosing, and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, caus es of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (direc tly or indirectly) to (i) City's approval of the Project, including but not limited to, the approval of the discretionary permits, maps under the Subdivision Map Act, and/or the City's related determinations or actions under the California Environmental Quality Act, and (ii) Permittee’s construction, operation, use, or related activity under this Permit. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses in curred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. Permittee shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. Permittee shall pay to the City upon demand or, as applicable, to counsel of City’s choosing, any amount owed pursuant to the indemnification requirements prescribed in this condition. (CA)
13. Revocation, Suspension, Modification. This Permit may be suspended, revoked, or modified in accordance with Section XI-10-63.06 of the Milpitas Zoning Code. (P)
14. Severability. If any term, provision, or condition of this Permit is held to be illegal or unenforceable by the Court, such term, provision, or condition shall be severed and shall be inoperative, and the remainder of this Permit shall remain operative, binding, and fully enforceable. (ALL)
15. Conditions of Approval. As part of the issuance of building permits, the Permittee shall include within the first four pages of the working drawings for a plan check, a list of all conditions of approval imposed by the final approval of the project. (P)
16. Development in Conformance with Approved Plans: Permittee shall develop the approved Project in conformance with the approved plans approved by the Planning Commission on January 25, 2023, in accordance with these Conditions of Approval.
Any deviation from the approved site plan , elevations, materials, colors, landscape plan, or other approved submittal shall require that, prior to the issuance of building permits, the Permittee shall submit modified plans and any other applicable materials as required by the City for review and obtain the approval of the Planning Director or Designee. If the Planning Director or designee determines that the deviation is significant, Permittee shall be required to apply for review and obtain approval of the Planning Commission or City Council, as applicable, in accordance with the Milpitas Zoning Code. (P)
17. Prior to the issuance of a building permit, the owner or designee shall include within the four first pages of the working drawings for a plan check, a list of all conditions of approval imposed by the final approval of the Project. (P)
18. Streets shall be designed to generally follow the contours and landform in order to minimize cut and fill. Exposed walls facing roadways and retaining walls shall be no greater than six feet in height. Crib walls facing roadways shall be no greater than 15 feet in height. (P)
19. Landscaping coverage and stabilization of graded slopes shall be selected and designed to be compatible with surrounding natural vegetation or to replace removed natural vegetation and should recognize climate, soil, and 96 Item # C8.
Resolution No. ____
10 ecological characteristic of the region. Plant materials that require excessive water after becoming established should be avoided. (P)
20. Within six months, or such other period established by the Planning Commission, after the commencement of grading activities, all graded areas not covered by an impervious surface shall be stabilized in such manner as shall be approved by the Planning Director. (P)
21. The proposed home is located east of the Crestline and is subject to a maximum height of 2 stories or 27 feet. (P)
22. The play lawn area located behind the garage and accessible through an approximately 18 -foot wide rear garage door shall not be converted or used for any type of temporary or permanent storage for any form of vehicle or other physical structures for the life of the project. Failure to adhere to this condition may result in a required alteration to the rear garage door as shall be approved by the Planning Director and/or Planning Commission. (P)
FIRE DEPARTMENT CONDITIONS
The plans approved by the Planning Department process are not building plans and have not been reviewed nor approved for conformance to the California Building Code (CBC), California Fire Code (CFC) and the Milpitas Municipal Code (MMC). Do not consider this set of plans as final building plans approved by the Fire Department. Building plans must be submitted for review and approval before construction is to commence. The following notes are a general list of the applicable code requirements (2016) and are provided to assist with the building permit process. Please note that these are not all inclusive. All applicable Building, Fire and Municipal Code requirements must be met in advance of any building permit approvals or related construction.
23. Electronic documents. The fire code official may require electronic base documents for all construction documents and operational permits. The fire code official shall designate the software base format for the electronic documents. CFC Section 105.4.2.2, added by MMC Section V-300-2.11, and CFC Section 102.9
24. Automatic Fire Sprinkler Requirements. An automatic sprinkler system shall be provided throughout the new dwellings (main and guest), inclusive of basements and garages. Milpitas Municipal Code Section V-300-2.62, CFC Section 903.2.8
25. Fire Department access. Sheets A-1.0 and C1.0 shows an acceptable Fire Dept. apparatus access. Fire apparatus access roads shall be provided for every building hereafter constructed when any portion of an exterior wall of the first story is located more than 150 feet from fire apparatus access as measured by an approved route around the exterior of the building. Fire apparatus access shall meet the following:
25.1. Fire apparatus access shall extend to within 150 feet of all portions of exterior walls of the building/structure per the California Fire Code Section 503.1.
25.2. The proposed driveway shall be designed for fire apparatus access. Fire Access Dimensions, fire apparatus access roads shall have an unobstructed width of not less than 20 feet (6096 mm). CFC Section 503.2.1
Exception:
Milpitas Municipal Code XI-45.11 45.11-1 Privately owned and maintained access from the public road to each single-family dwelling shall be a minimum of fourteen (14) feet in width. Turning radius shall be designed to meet the Fire Department's requirements.
45.11-2 Turnout space shall be provided on driveways over one hundred fifty (150) feet in length with a maximum spacing of one hundred fifty (150) feet if driveway is less than eighteen (18) feet wide.
45.11-3 Turnaround. All dwelling units shall provide an on-site area for vehicles to turn around if served by a driveway over one hundred fifty (150) feet in length to meet Fire Department's requirements.
97 Item # C8.
Resolution No. ____
11 45.11-4 Vertical Clearance. All privately owned and maintained roads and drives shall assure a minimum fourteen (14) foot vertical clearance.
25.3. Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus and shall be surfaced so as to provide all-weather capabilities. Bearing capacity for the driveway and the entry drive court shall be designed to provide a minimum of 60,000 lbs bearing capacity for the fire apparatus. CFC Section 503.2.3
25.4. When there is a dead-end condition, means for fire apparatus turn-around shall be provided as per the CA Fire Code Section 503.2.5. The Fire Department reserves the right to request site design changes as needed to meet the requirements of the CFC, and/or make the request for additional fire protection measures in conformance with the CFC Section 102.9.
25.5. The grade (maximum 15%) of the fire apparatus access road shall be within the limits established by the fire code official based on the fire department’s apparatus. CFC Section 503.2.7
25.6 . Electric gates. Where provided, gates shall be listed in accordance with UL 325. Gates intended for automatic operation shall be designed, constructed and installed to comply with the requirements of ASTM F 2200. CA Fire Code Section 503.5
Electric gates shall also be provided with a Milpitas Fire Department approved “Knox” electronic switch in addition to the keypad. CA Fire Code Section 102.9
26. Premises identification. New and existing buildings shall have approved address numbers. Address numbers shall be illuminated and located where they are clearly visible from the street. CFC Section 505
27. Water supply requirements. Where a portion of the facility or building hereafter constructed or moved into or within the jurisdiction is more than 400 feet (122 m) from a hydrant on a fire apparatus access road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official. CFC Section 507.5.1 Exception:
For Group R-3 and Group U occupancies, equipped throughout with an approved automatic sprinkler system installed in accordance with Section 903.3.1.1, 903.3.1.2 or 903.3.1.3, the distance requirement shall be not more than 600 feet
28. Sprinkler system supervision and alarms, and monitoring. It is recommended that due to the location of the home (hillside) the automatic fire sprinkler system for this home be a system that has supervision and alarm, and monitoring system in conformance to the CA Fire Code Section 903.4.
BUILDING DEPARTMENT CONDITIONS
29. Compliance with California Code of Regulations. The Project shall comply with the requirements of the Building Safety and Housing Department and the California Code of Regulations Title 24 and the Milpitas Municipal Code as adopted by the City. Building permits shall be submitted to and approved by the Building Safety and Housing Department prior to start of construction. All California Code of Regulations Title 24 and Milpitas Municipal Code requirements applicable at the time of building permit application must be met in advance of any building permit approvals or related construction. Changes to the site plan and/or building plan require review and approval by the Building Safety and Housing Department.
ENGINEERING DEPARTMENT CONDITIONS
PRIOR TO CONSTRUCTION PLAN SUBMITTALS
The following conditions shall be met prior to any detailed construction plan check submittals (Building or Engineering, except demolition and rough grade plans), unless otherwise approved by the Director of 98 Item # C8.
Resolution No. ____
12 Engineering/City Engineer. City reserves the right to reject any plan check submittal if any of the following conditions are not met. (E)
30. Stormwater Control Plan: Permittee shall submit City approved final Stormwater Control Plan (SWCP) that complies with the latest Municipal Regional Stormwater NPDES Permit, including Low Impact Development (LID) Section C3.c.i.(2)(b) measures for harvesting and reuse, infiltration, or evapo-transpiration, for City’s review and approval by the Engineering Department.
31. Submittal Requirements: Permittee to ensure that all plan check submittals are in accordance with City’s submittal check list for each permit type, including but not limited to, payment of permit fees and/or fee deposit at the time of the submittal.
PRIOR TO OFF-SITE PLAN APPROVAL/ENCROACHMENT PERMIT ISSUANCE The following conditions shall be addressed as part of the off-site improvement plan review and shall be met prior to encroachment permit issuance, unless otherwise approved by the Director of Engineering/City Engineer. (E)
32. Public Improvement Design Standards: All public improvements shall be designed and constructed in accordance with all applicable public improvement design standards, including but not limited to:
a. Milpitas Design Guidelines: (http://www.ci.milpitas.ca.gov/milpitas/departments/engineering/design-guidelines/); b. Standard details and specifications: (http://www.ci.milpitas.ca.gov/milpitas/departments/engineering/standard- details-and-specifications/);
c. Americans with Disabilities Act (ADA) requirements, where applicable.
33. Storm Drain Design: Permittee shall submit storm drain hydrology and hydraulic calculations based upon a 10-year storm event to justify the size of the storm drain lateral flowing full, without surcharging the main line pipe, and to be reviewed and approved by the Engineering Department.
34. Domestic Water and Fire Service Calculations: Permittee shall submit potable water and fire service calculations to confirm adequacy of lateral size, pressure and flow, to be reviewed and approved by the Engineering Department and Fire Department. Hydraulic modeling analysis by the City and paid by the Permittee may be required as needed.
Permittee shall be responsible to implement any necessary improvements if there is any identified deficiency to the existing main as a result of the project.
35. Water Service Agreement: Permittee shall complete a water service agreement to obtain water service.
36. Encroachment Permit: Prior to any work in the public right-of-way and/or public easement, obtain an encroachment permit with insurance requirements for all public improvements including a traffic control plan per the latest California Manual on Uniform Traffic Control Devices (MUTCD) standards to be reviewed and approved by the Engineering Department.
37. Pothole Encroachment Permit: Due to new utility service connections on City streets, Permittee shall pothole and verify all potential utility crossing conflict as part of the public improvement plan during the design stage.
38. Water Efficient Landscapes: Permittee shall comply with Milpitas Municipal Code Title VIII, Chapter 5 Water Efficient Landscapes for landscape design, including but not limited to, providing separate water meters for domestic water service and irrigation service and providing applicable landscape documentation package.
39. Solid Waste and Recycling Facility Design: Permittee shall comply with all applicable City design guidelines/details associated with haul route, turning radius, vertical and horizontal clearance, trash enclosure, staging area, storage area, etc.
40. Solid Waste Management: The project must meet all Milpitas Sanitation and SB 1383 requirements for solid waste management.
41. Mailboxes: The Permittee shall obtain information from the US Postal Services regarding placement of required mailboxes. Structures to protect mailboxes may require Building, Engineering and Planning Divisions review. 99 Item # C8.
Resolution No. ____
13 DURING CONSTRUCTION
The following conditions shall be complied with at all times during the construction phase of the project, unless otherwise approved by the Director of Engineering/City Engineer. (E)
42. Dewatering: If dewatering is needed during construction, Permittee shall obtain a Short-Term Industrial Wastewater Permit from the San Jose/Santa Clara Water Pollution Control Plant for discharging the groundwater to a sanitary sewer system.
43. On-site Recycle Water Coordination: Permittee’s cross-connection specialist shall coordinate the phasing of the construction; facilitate the cross-connection testing in order to minimize the impact for occupied buildings during cross-connection testing; sign-off before the water meter set; coordinate on-site construction inspection; complete the site inspection; fill out required paperwork/questionnaire; and provide them to the City for forwarding to South Bay Water Recycling.
44. Prohibition of Potable Water Usage: Permittee shall use recycled water for construction purposes, including dust control and compaction. Permittee shall comply with MMC VIII-6-5.00 and 6-6.00 where potable water usage is prohibited, unless otherwise approved by the City Council.
45. Construction Staging and Employee Parking: Permittee shall place all construction related materials, equipment, and arrange construction workers parking on-site and not located in the public rights-of-way or public easements.
46. Water Shut-down Plan: Permittee shall provide a water shut-down plan at least seven days in advance of the shut- down in coordination with the Engineering Inspector and notify affected property owners/tenants when cut-in tee(s) is/are required.
PRIOR TO FIRST OCCUPANCY
The following conditions shall be met prior to first building occupancy on either lot, unless otherwise approved the Director of Engineering/City Engineer.
47. Completion of Public Improvements: Permittee shall complete all public improvements, including but not limited to frontage improvements and fire hydrants, as shown on City approved plans.
48. Landscape Certificate of Completion: Permittee shall submit a Certificate of Substantial Completion that complies with the Milpitas Municipal Code Water Efficient Landscapes ordinance.
LEGEND
(P) = Planning Department
(B) = Building Department
(E) = Engineering Department
(F) = Fire Department
(CA) = City Attorney
ALL = All Reviewing Departments
AGREEMENT
Permittee/Property Owner
The undersigned agrees to each and every condition of approval and hereby agrees to use the project property on the terms and conditions set forth in this resolution.
Dated: _________________ ______________________________________ Signature of Permittee
100
Item # C8.
AG
ENDA VIII-1
MILPITAS PLANNING COMMISSION
STAFF REPORT
January 25, 2023
APPLICATION: NEW HILLSIDE RESIDENCE – Site Development Permit No. SD22-0001 – A Site Development Permit to allow
development of a 3,347-square foot, single -family residence up to 25 feet, six inches (two stories) in height, with a 1,012- square foot attached garage, 1,200-square foot attached accessory dwelling unit (ADU), in -ground pool and spa, deer fencing up to eight -feet in height, landscaping, and associated site improvements on a vacant
4.29-acre hillside lot located in the R1-H Single-Family Residential Hillside Zoning District at 531 Vista Ridge Drive.
RE
COMMENDATION: Staff recommends that the Planning Commis sion adopt Resolution No . 23-002, recommending approval of Site
Development Permit SD22-0001 to the City Council, subject to the attached Conditions of Approval.
L
OCATION:
Address/APN: 531 Vista Ridge Dr. (APN 042-30-029)
Area of City: East of Vista Ridge Drive
P
EOPLE:
Project Applicant: Bridgett Shank, Timbre Architecture Property Owner: Milan Brahmbhatt
Project Planner: Kristina Phung , Associate Planner
L
AND USE:
General Plan Designation: Hillside Low -Density (HLD)
Zoning District: Single Family Residential -Hillside (R1-H) Site Area: 4.29 acres
E
NVIRONMENTAL: Categorically exempt fro m environmental review under the California Environmental Quality Act (CEQA ) in accordance with CEQA Guidelines Section 15303(a) ( New Construction or Conversion of Small Structures) and Section 15183 (Projects Consistent with a Community Plan, General Plan, or Zoning). 101
Item # C8.
P age 2 of 12
EXECUTIVE SUMMARY
The applicant is requesting a Site Development Permit to construct a 3,347-square foot, two-story single-family residence with a 1,012-square foot attached garage on a 4.29-acre vacant hillside lot.
The proposed project includes an attached 1,200 ADU, in-ground pool and spa, deer fencing up to eight-feet in height, landscaping, and associated site improvements. Map 1 demonstrates the vacant lot and Map 2 demonstrates the neighboring zoning designation.
Map 1 - Project Location
Map 2 - Zoning Map
102
Item # C8.
P age 3 of 12
BACKGROUND
His
tory
On October 13, 1982, “Tract No. 6744” was filed for recordation in the Office of the Recorder of the County of Santa Clara, State of California. Tract Map No. 6744 created 26 lots, known as the Spring Valley Heights subdivision, with Lots 1-25 ranging in size from approximately 1.0-acre to
5.0-acres. Lot 26 was designated as “Common Area” and contains approximately 45.6 acres, with portions dedicated to future trails.
Subsequently, Tract Map 6744 was amended twice. On February 27, 1986, a lot line adjustment altered the boundaries of lots 1, 4, 5, 16, and 26. On April 8, 1988, Tract Map 6744 was further amended to include the following:
• the elimination of all building envelopes previously recorded on lots 1-25, • modifications to easements on lots 7, 18, and 20, and • requiring a geologic considerations analysis for all future developed lots.
Lot 16 is now known as 531 Vista Ridge Drive. The lot has remained vacant since the subdivision was approved in 1982. Approximately three other lots remain vacant in this Hillside subdivision; the remaining 21 lots have been developed or approved for single-family residences.
T
he Application
The following is a summary of the applicant’s request:
• Site Development Permit: To allow the development of a 3,347- square foot , two-story single-family residence with a 1,012-square foot attached garage on a 4.29-acre vacant lot within the hillside. The proposal also includes a 1,200- square foot, attached ADU, in - ground pool and spa, deer fencing up to eight -feet in height, landscaping, and associated site improvements.
P
rocess
In addition to satisfying the substantive and procedural requirements typically applicable to a Site Development Permit, the application must be considered by both the Planning Commission and the City Council due to the project’s location within the Hillside Combining District (“H”) (Milpitas Municipa l Code Section XI -10-45.09) for conformance with the Hillside Site and Architectural Guidelines.
PROJECT DESCRIPTION
Overview
The applicant is requesti ng a Site Development Permit to construct a two -story, single- family residence with four bedrooms and three and a half bathrooms. The proposed project also includes an attached one-story, two-bedroom ADU1, totaling approximately 1,200-square feet (sq. ft.). 1 The proposed ADU meets the minimum requirements per State law and Milpitas Municipal Code (MMC) Section XI-10-13.08, Accessory Dwelling Units. Therefore, the ADU must be approved ministerially and is not subject t o a
ny discretionary review.
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Item # C8.
P age 4 of 12
T
he first floor, totaling approximately 2,511 sq. ft. will include the following: laundry room, three bedrooms, two and a half bath rooms, living room, dining room, play room, kitchen/pantry area, prayer room, and an attached four-car garage. Two additional onsite uncovered parking stalls will be located west of the new residence for the ADU.
A staircase by the common entryway of the residence will connect to a partial second floor totaling approximately 836 sq. ft . The second floor will contain the master bedroom suite with a full bathroom and an office area. Additionally, a roof deck connecting from the master bedroom is proposed. The master bedroom windows and roof deck are at the rear of the residence, with the roof deck facing southeast looking onto undeveloped hillside views and will not have a direct line of sight to neighboring residences. The accessible roof deck will also feature a low- profile green roof.
A hammerhead asphalt concrete driveway approximately 275-feet long will be built matching the existing slope. Behind the garage and between the main residence and ADU will feature an open play-lawn area. The rear of the main residence wing will also include an attached unenclosed patio cover. Other proposed accessory structures include an in- ground pool with an integrated spa.
Proposed fencing surrounding the residence includes an eight-foot tall deer fence made of standard coated steel with a motorized, six-foot tall entry gate in the driveway.
No existing onsite trees will be removed as part of the proposed proj ect as all existing trees are located on the sloped portions of the lot, and the proposed residence and associated structures will be constructed on the flattest portion of the lot. On -site improvements designed by professional Todd Kalbfeld Landscape Design will primarily surround the immediate areas of the new driveway and r esidence with drought tolerant, fire resistant , and low water use landscaping. These improvements include numerous shrubs, ground cover species, and trees, including but not limited to: 33 California wild lilac shrubs, eight California Holly shrubs, six fruit trees, and seven crepe myrtle trees.
Location and Context
The project site is in the eastern portion of the City of Milpitas in the hillside area on an undeveloped 4.29-acre parcel along Vista Ridge Drive. The subject property and all neighboring properties are zoned Single -Family Residential- Hillside. Unincorporated Santa Clara County properties are located further from the project site to the north and east. The following table provides a summary of the Zoning and Land Uses surrounding the site:
Table 1:
Surrounding Zoning and Land Uses
General Plan Zoning Existing Use
Subject
Site
Hillside Low
Density (HLD)
Single-Family Residential-
Hillside (R1-H) Vacant
North Hillside Low
Density (HLD)
Single-Family Residential-
Hillside (R1-H)
Common Area (Vacant
Undeveloped Preserved Lot)
South Hillside Low
Density (HLD)
Single-Family Residential-
Hillside (R1-H)
Single-family home (under
construction)
East Hillside Low
Density (HLD)
Single-Family Residential-
Hillside (R1-H)
Common Area (Vacant
Undeveloped Preserved Lot)
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P age 5 of 12
West Hillside Low
Density (HLD)
Single-Family Residential-
Hillside (R1-H) Single-family home
PROJECT ANALYSIS
General Plan and Zoning Conformance
Milpitas General Plan 2040
Hillside Low Density (HLD) is the General Plan land use designation. Topography within this designation is characterized by gentle to steep slopes, grassy terrain with some chaparral trees, wildlife, and geologically unstable areas . The HLD designation was created to ensure safe, appropriate development that preserves the natural hillside ambiance. All development in the hillside area is low -density, in scale with other single -family residences, and rural in nature. As designed, the Project is in conformance with the policies and standards in the City’s General Plan, as demonstrated in the following table:
Table 2:
General Plan Consistency
Policy Conformance
CD 7-1 Maintain the visual character of
hillsides, recognizing both the importance
of the exposure of hillside development
from off-site public views and the
importance of providing panoramic public
views from and of hillsides.
Consistent. The proposed project will not impact
the visual character of the hillside from the valley
floor or other viewpoints as the project site is
located over a half mile east of the crestline and
the new residence will be shielded by an existing
hill when viewed from the valley floor. P roject
Plan sheets G0.1 and G0.2 illustrate how the
proposed residence will not obstruct panoramic
public views from and of the hillsides.
CD 7-2 Minimize the alteration of existing
landforms and maintain the natural
topographic characteristics of the hillside
areas, allowing only minimal disruption.
Consistent. The proposed new residence will be
situated at the flattest portion of the lot to limit
disruption to the existing natural topography by
limiting cut to 453 cubic yards and fill to 213 cubic
yards for both construction phases. S ubstantial
grading (209 cubic yards) is a result of the
excavation for the pool area at a vertical depth of
4-feet. The remaining 244 cubic yards of cut is for
the driveway and landscaping. The proposed
residence is naturally sited on the existing flattest
portion of the lot as the remainder of the lot is
either significantly downsloping or upsloping.
Therefore, only minimal alterations to the existing
topographical characteristics of the lot are
proposed for the in -ground pool /spa, driveway,
and landscaping.
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Item # C8.
Policy Conformance
CD 7-3 Protect the natural character of
hillside areas by means of contour
grading to blend graded slopes and
terraces with the natural topography.
Consistent. Minimal contour grading will be
required for construction of the new residence due
to its siting on the flattest areas of the lot. All new contours will be designed to blend with the natural
existing site contours as demonstrated in the civil
drawings in the plan set. Grading of the driveway
follows the natural contours, does not require
steep cuts, and follows the natural grade of the
existing hillside.
CD 7-4 Avoid mass graded pads within
hillside areas. Smaller steps or grade
changes should be used over single, large,
slope banks to the greatest extent feasible.
Consistent. The building pad is proposed at the
flattest portion of the lot and will necessitate only
minimal grading for the driveway and
landscaping. G rading has been substantially
minimized in the project, in that the siting follows
the site's natural contours, in an effort to preserve
the natural terrain quality. Other grading includes
excavation for the proposed in- ground pool and
integrated spa along an existing flat portion of the
lot.
CD 7-5 Ensure that any change in hillside
land use is accompanied by appropriate
safety measures and that the
environmental constraints are adequately
addressed especially with respect to
runoff and erosion.
Consistent. No changes are proposed to the
existing land use and zoning designation for the
subject site to be used as a single-family residence.
Prior to construction of the residence, all proposed
project construction and operational details will be
reviewed thoroughly by applicable Departments
during the building permit review process. The
building permit application will be reviewed with
the latest adopted State and local building and
development codes, which will include standard
requirements such as Construction Best
Management Practices (BMPs) and an erosion and
sediment control plan to control runoff onto
adjacent properties.
CD 7-6 Require hillside development to
incorporate architecture, scale, massing,
building form, building color, roof
materials, and landscaping to reflect the
natural hillside setting.
Consistent. The proposed project’s low-profile
building design and earth tone materials and
colors will blend into the rural environment and
only includes a partial second story for reduced
massing and scal e. The exterior façade will
include materials such as natural cedar siding and
stacked gray limestone with metal materials and
accents on the roof, windows/doors, and garage
door in a dark bronze color to match. As
demonstrated by Sheet G.03, the 3D renderings
show the new residence with its earth-toned
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Item # C8.
Policy Conformance
proposed colors and materials that brings together
the natural hillside topography of the lot .
Additionally, the proposed landscaping materials
are consistent wit h the Hillside Landscaping
Ordinance.
Development Standards
The site is in the R1-H Single-Family Residential-Hillside Combining District. The “H” Zoning District promotes and encourages the orderly development of the hillside area of the City by the application of regulations and requirements established to meet the particular constraints associated with development of hillside areas, including, but not limited to, geologic problems, slope, safe access and visibility.
Per Milpitas Municipal Code Section XI -10-45.17-4, the subject parcel is greater than 3.0 -acres, which allows for a larger maximum size for the main residence and greater impervious surface coverage compared to parcels under this acre threshold. Although the proposed new residence could be developed substantially greater in size for the main residence and impervious surface coverage, the project applicant chose to conform to development standards well within its maximum limitations . Table 3 demons trates the project’s consistency with the applicable development standards of the R1-H zone.
Table 3:
Summary of Development Standards
Standards Hillside Requirements Proposed Complies
Front Setback
25 ft. minimum when avg.
slope is <16%.
Otherwise, 40 ft.
minimum
206 ft. 9 in. (Avg. slope of
lot is 14.51%) Yes
Side Yard Setback 40 ft. minimum 134 ft. 8 in. to east
40 ft. to west Yes
Rear 40 ft. minimum 264 feet Yes
Size of Main
Residence
6,000 sq. ft. maximum
(lots < 3 acres)
10,000 sq. ft. maximum
(lots > 3 acres)
4,359 sq. ft. (including
attached garage) Yes
Size of Accessory
Structures
1,200 sq. ft. maximum per
individual structure
1,200 sq. ft. (attached
ADU)
594 sq. ft. (attached
unenclosed patio cover)
Yes
Impervious Surfaces 8,000 sq. ft. maximum
(lots < 3 acres) 14,443 sq. ft. Yes
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Item # C8.
Standards Hillside Requirements Proposed Complies
30,000 sq. ft. maximum
(lots > 3 acres)
Building Height
(maximum)
17 ft. west of crestline;
27 ft. east of crestline
25 ft. 6 in.
Yes
Parking
Main Residence - Three
spaces required
ADU – One space
required
Six spaces (four inside
garage & two outside) Yes
Due to the subject property’s location, the project is required to comply with the development standards in the City’s Hillside Combining District. Per MMC Section XI-10-45.09-7, the Planning Commission and City Council shall consider the following guidelines in its review. Staff recommends that the proposed design is consistent with the Hillside Architectural Guidelines a s shown in Table 4 below.
Table 4:
Site and Architectural Guidelines – City of Milpitas – Hillside
Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
(a) Avoid unreasonable interference with
Views and Privacy. The height,
elevations and placement on the site of
the proposed main or accessory
structure, when considered with
reference to the nature and location of
residential structures on adjacent lots,
will avoid unreasonable interference
with views and privacy.
Consistent. Due to the proposed location and
minimal scale of the home in consideration to its
maximum allowable size outlined in Table 3, the
development will not substantially interfere with
views and privacy to adjacent lots. In addition, the
proposal exceeds all setback requirements, is
within its 27-foot, two-story height limit at 25-feet
and 6-inches, and substantially setback from
adjacent residences to the south and west, which
minimizes interference with views and privacy.
The adjacent lot located immediately south of the
subject property at 529 Vista Ridge Drive is the
only other residence that would be nearby the
subject property. The residence is currently under
construction as a one-story, single-family
residence, and is sited entirely on a upsloped
elevation and will not have any immediate line of
sight to the new proposed residence. The lot
immediately east and north of the subject parcel is
dedicated as Common Area only and will not be
developed with future residential uses. Three other
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Item # C8.
Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
existing developed lots with single-family
residences located west of the subject parcel are
on the other side of Vista Ridge Drive are also
located on higher elevations and are accessible
from a separate street, Vista Spring Court. As
such, these other residences contain substantial
rear setbacks and the residences will not front
each other. Additionally, existing trees and
established landscaping features obstruct direct
views of the other residences from 531 Vista
Ridge Drive.
(b) Preserve Natural Landscape. The
natural landscape will be preserved
insofar as practicable by designing
structures to follow the natural contours
of the site and minimizing tree and soil
removal.
Consistent. The project site is currently vacant
and undeveloped with no trees or shrubs on the
proposed building footprint. All existing trees are
on the sloped portions of the lot where
development will not occur. As such, no trees
will be removed. As currently proposed, the
design of the house is carefully sited to be built on
the flattest portions of the lot, following the
natural landscape and existing contours of the site
to limit cut and fill to an equal 453 cubic yards of
cut and 213 cubic yards of fill. The amount of cut
is due to the excavation for the pool/spa,
driveway, and landscaping.
(c) Minimize Perception of Excessive Bulk.
The design of the proposed main and /or
accessory structure(s) in relation to the
immediate neighborhood should
minimize the perception of excessive
bulk.
Consistent. The proposed design includes
varying rooflines, a clear delineation of different
colors and materials, and punctuation of certain
front and side facing elevations to remove the
perception of bulk within the two-story residence.
The footprint of the proposed home is also angled
in its orientation to the front property line and
only contains a partial second story, thus
minimizing the perception of excessive bulk.
(d) Impairment of Light and Air. The
proposed main or accessory structure(s)
shall not unreasonably impair the light
and air of adjacent properties nor
unreasonably impair the ability of
adjacent properties to utilize solar
energy.
Consistent. The proposed home will not exceed
the maximum height limit for homes east of the
crestline, only has a partial second story, and
exceeds all minimum setbacks as required by the
Hillside development standards. The proposed
home has a combination of flat and minimally
pitched roof systems that could be used to utilize
future solar energy. With regards to adjacent
properties, the lots to the north and east are
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Item # C8.
Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
reserved as Common Area and the residence
under construction to the south will be located on
a higher elevation greater than 170-feet away.
The residences to the west are also located entirely
on a higher elevation and are facing Vista Spring
Court from the proposed residence. As such, the
proposed project will not cause an impairment to
the adjacent properties access to light and air.
(e) Grading. All grading shall be kept to an
absolute minimum and shall comply with
the grading ordinance criteria.
Consistent. As designed, the proposed location
of the main dwelling is where the existing lot is
relatively flat and the majority of the remainder of
the lot is substantially upsloping or downsloping.
The grading is limited for construction of the
driveway, landscaping, and excavating for the in-
ground pool and integrated spa. The remainder of
the existing upsloping and downsloping
topography of the lot will remain minimally
altered to preserve the existing natural contours of
the hillside.
Site & Architectural Design
The project is designed influenced by the California modern bungalow style by utilizing long overhangs for shading and emphasizing natural materials throughout, which adds to the neighborhood’s diversity of housing stock. The home incorporates strong lines, a mixture of high- quality metal or wood and earth tone materials. Articulating the architectural forms and blending with various finishes creates an attractive front elevation. Large windows are concentrated towards the hillside to frame views and provide opportunities for extensive natural lighting. The open plan layout forms an L -shape to encompass the pool/integrated hot tub and outdoor living areas for a seamless indoor -outdoor connection. The layout of the residence together with the natural grading of the lot maximizes privacy for the home owners and minimizes views into adjacent properties.
The overall color scheme of the residence will have light tan, brown, and gray shades. The exterior materials include exterior siding in a natural cedar wood color , stacked gray limestone cladding, dark bronze color standing seam metal roofing and garage door. The doors and windows will have a dark bronze color to match the roof and garage door . The roof deck will have a metal guardrail with glass panels. All exterior materials and finishes work together as a palette of earth tone colors creating harmony with the surroundings. The colors and materials proposed are complementary to the character of the rural, neighboring residences. A visual rendering with all materials and colors is demonstrated in the Colors/Materials Sheet G0.3 in Attachment B (Project Plans).
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Item # C8.
Grading
Due to the proposed residence location from the main road and vehicular access requirements, the site must be graded to make residential development feasible. In an effort to limit the amount of grading, the applicant designed the home on the flattest portion of the site which will result in 453 cubic yards of cut and 213 cubic yards fill for the construction of the new home and the required grade of the driveway for firetruck access. As previously noted, a substantial amount of cut (20 9 cubic yards) is due to the estimated excavation for the pool and integrated spa area. Attachment B (Project Plans) demonstrates the preliminary grading plan on Sheet C 4 and is consistent with the grading requirements within the Hillside Ordinance.
Crestline Zone of Protection
Per MMC Section XI-10-45.06, the purpose of the Crestline Zone of Protection is to preserve the crestline's natural quality and the slopes immediately below when viewed from the valley floor.
To demonstrate compliance, the applicant took pictures from the three nearest vantage viewpoints established by the City from the crestline. As demonstrated in Sheets G0.1 and G0.2 of Attachment B (Project Plans), the project site will not be visible from the valley floor, and is obstructed from views by an existing hill, and is therefore, compliant with the Crestline Zone of Protection.
FINDINGS FOR APPROVAL (OR DENIAL)
A finding is a statement of fact relating to the information that the Planning Commission must consider in making a decision. Findings shall identify the rationale behind the decision to take a certain action. Based on substantial evidence in the public record, Staff has found that the proposed Project is consistent with the General Plan, Zoning Ordinance, and all required findings.
Site Development Permit Findings (Section XI-10-57-03-1(F))
1. The layout of the site and design of the proposed buildings, structures and landscaping are compatible and aesthetically harmonious with adjacent and surrounding development.
As described within the staff report, the development's architectural design and site planning is aesthetically compatible with the neighboring properties , and the on-site grading plan minimizes changes to the natural topography. The proposed single -family residence incorporates earth tone colors and materials that compl ement both the site and existing neighborhood. Furthermore, the design of the proposed project will complement adjacent and surrounding development as the new residence will only have a partial second-story floor and be built up to 44% of the allowed size for a main residence on the 4.29-acre lot in the Hillside Zoning Ordinance.
2. The Project is consistent with the Milpitas Zoning Ordinance in that:
As described within the staff report and demonstrated within Table 3 of the staff report, the proposed single-family residence is consistent with the development standards of the Milpitas Zoning Ordinance for the R1- H Single -Family Residential- Hillside Zoning District for setbacks, height requirements, and landscaping.
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Item # C8.
3. The Project is consistent with the Milpitas General Plan in that:
As demonstrated within Table 2 of the staff report, the P roject is consistent with the existing Hillside General Plan policies of the City of Milpitas. The proposed residence is designed to fit in with the existing natural topographic features of the prope rty with minimal grading and will have little to no visual impact as viewed from the valley floor as the subject residence will be shielded by an existing hill and is located on a farther eastern edge of the City. No mass grading is required, and the majority of the lot will remain undeveloped. The scale, mass, building form, and overall design of the new Hillside residence will be similar to other single- family residences in the Hillside and will have earth toned features.
ENVIRONMENTAL REVIEW
The proposed Project is categorically exempt from environmental review under the California Environmental Quality Act (CEQA) in accordance with CEQA Guidelines Section 15303(a) (New Construction or Conversion of Small Structures) and Section 15183 (Projects Consistent with a Community Plan, General Plan or Zoning).
PUBLIC COMMENT/OUTREACH
Staff provided public notice for the application per City and State public notice requirements. At the time of writing this report, there have been no inquiries from the public. A notice was published in the Milpitas Post on January 13, 2023. In addition, 12 notices were sent to owners and occupants within 300 feet of the project site. A p ublic notice was also provided on the project site, on the City’s Website, www.milpitas.gov, and posted at City Hall.
RECOMMENDATION
STAFF RECOMMENDS THAT the Planning Commission:
1. Open the Public Hearing to receive comments;
2. Close the Public Hearing; and
3. Adopt Resolution 23-002, recommending that the City Council approve Site Development Permit No. SD22-0001, to allow development of a single -family residence in the R1 -H Single -family Residential H illside Zoning D istrict, subject to the findings and attached Conditions of Approval.
ATTACHMENTS
A: Resolution 23-002
B: Project Plans
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Item # C8.
RESOLUTION NO. 23-002
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MILPITAS RECOMMENDING APPROVAL OF SITE DEVELOPMENT PERMIT NO. SD22-0001 TO CONSTRUCT A NEW HILLSIDE HOME ON A VACANT 4.29-ACRE SITE LOCATED AT 531 VISTA RIDGE DRIVE (APN: 042-30-029)
WHEREAS, on February 15, 20 22, an applic ation was submitted by Bridgett Shank of Timbre Architecture (“Applicant” or “Permittee”), for a development proposal to allow development of a 3,347- square foot , single -family residence up to 25 feet, six inches ( two stories) in height, with a 1,012- square foot attached garage, 1,200-square foot attached accessory dwelling unit (ADU), in-ground pool and spa, deer fencing up to eight -feet in height, landscaping, and associated site improvements on a vacant 4.29-acre site at 531 Vista Ridge (APN: 042-30-029) (the “Project”). The Project site is zoned Single Family Residential - Hillside; and WHEREAS, the Planning Division completed an environmental assessment for the Project in accordance with the California Environmental Quality Act (CEQA), which assessment determined that the Project is exempt from CEQA review pursuant to Section 15303 (New Construction and Conversion of Small Structures) of the CEQA Guidelines and, as a separate and independent basis, pursuant to Section 15183 of the CEQA Guidelines; and WHEREAS, on January 25, 2023, a duly noticed public hearing was held by the City of Milpitas Planning Commission on the subject application, at which time all those in attendance were given the opportunity to speak on the Project; and
WHEREAS, the Planning Commission has considered all of the written and oral testimony presented at the public hearing in making its decision; and
NOW THEREFORE, the Planning Commission of the City of Milpitas hereby finds, determines and resolves as follows:
SECTION 1: Recitals
The Planning Commission has considered the full record before it, which may include, but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it.
Furthermore, the recitals set forth above are found to be true and correct and incorporated herein by reference.
SECTION 2: CEQA Finding
The project is exempt from further environmental review under the California Environmental Quality Act (CEQA) pursuant to Section 15303(a) for “New Constructi on or Conversion of Small Structures including one single -family residence, or a second dwelling unit in a residential zone,” because it can be seen with certainty that there is no possibili ty that these actions may have a significant effect on the environ ment. The Project’s proposed new construction of a single - family residence and its accessory structures are within a residentially zoned area on a legal parcel and none of the exceptions, as specified in Section 15300.2 of the CEQA Guidelines that would preclude applicability of this exemption are present. As a separate and independent basis, the Project is exempt from Section 15183 of the CEQA Guidelines as a project consistent with a community plan, general plan or zoning in that it is consistent with the development density established in the Milpitas General Plan and the applicable zoning and there are no project-specific significant effects which are peculiar to this project or its site.
SECTION 3: Site Development Permit Findings (Section XI-10-57.03(F)(1)) - The Planning Commission makes the following findings based on the evidence in the public record in support of Site Development Permit No. SD22- 0001:
1. The layout of the site and design of the proposed buildings, structures and landscaping are compatible and aesthetically harmonious with adjacent and surrounding development.
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 113
Item # C8.
Resolution No. 23-002
2 As described within the staff report, the development's architectural design and site planning is aesthetically compatible with the neighboring properties, and the on-site grading plan minimizes changes to the natural topography. The proposed single-family residence incorporates earth tone colors and materials that complement both the site and existing neighborhood. Furthermore, the design of the proposed project will complement adjacent and surrounding development as the new residence will only have a part ial second-story floor and be built up to 44% of the allowed size for a main residence on the 4.29-acre lot in the Hillside Zoning Ordinance.
2. The Project is consistent with the Milpitas Zoning Ordinance.
Table 1 demonstrates the Project’s consistency with the applicable development standards of the R1-H Zoning District per Section XI-10-45 - "H" Hillside Combining District of the Milpitas Zoning Ordinance, including setbacks, height requirements, maximum impervious surface coverage, and parking.
Table 1 :
Summary of Development Standards
Standards Hillside Requirements Proposed – 4.67-acre lot Complies Front Setback
25 ft. minimum when avg.
slope is <16%.
Otherwise, 40 ft. minimum
206 ft. 9 in. (Avg. slope of
lot is 14.51%) Yes
Side Yard Setback 40 ft. minimum 134 ft. 8 in. to east
40 ft. to west Yes
Rear 40 ft. minimum 264 feet Yes
Size of Main Residence
6,000 sq. ft. maximum
(lots < 3 acres)
10,000 sq. ft. maximum (lots
> 3 acres)
4,359 sq. ft. (including
attached garage) Yes
Size of Accessory
Structures
1,200 sq. ft. maximum per
individual structure
1,200 sq. ft. (attached ADU)
594 sq. ft. (attached
unenclosed patio cover)
Yes
Impervious Surfaces
8,000 sq. ft. maximum (lots
< 3 acres)
30,000 sq. ft. maximum (lots
> 3 acres)
14,443 sq. ft. Yes
Building Height
(maximum)
17 ft. west of crestline;
27 ft. east of crestline
25 ft. 6 in.
Yes
Parking
Main Residence - Three
spaces required
ADU – One space required
Six spaces (four inside
garage & two outside) Yes
Due to the subject property’s location, the Project is also required to comply with the development standards in the City’s Hillside Combining District. Per Section XI-10-45.09-7 of the Zoning Ordinance, the Planning Commission and City Council shall consider the following guidelines in their review of proposed new development. Staff has determined the home to be consistent with the Hillside Architectural Guidelines as demonstrated below. See Table 2 for consistency.
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 114
Item # C8.
Resolution No. 23-002
3 Table 2:
Hillside Zoning Ordinance Compliance
Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
(a) Avoid unreasonable interference with Views
and Privacy. The height, elevations and
placement on the site of the proposed main
or accessory structure, when considered
with reference to the nature and location of
residential structures on adjacent lots, will
avoid unreasonable interference with views
and privacy.
Consistent. Due to the proposed location and minimal
scale of the home in consideration to its maximum
allowable size outlined in Table 3, the development
will not substantially interfere with views and privacy to adjacent lots. In addition, the proposal exceeds all setback requirements, is within its 27-foot, two-story
height limit at 25-feet and 6-inches, and substantially setback from adjacent residences to the south and west, which minimizes interference with views and privacy.
The adjacent lot located immediately south of the
subject property at 529 Vista Ridge Drive is the only
other residence that would be nearby the subject
property. The residence is currently under construction as a one-story, single-family residence, and is sited
entirely on a upsloped elevation and will not have any
immediate line of sight to the new proposed residence.
The lot immediately east and north of the subject
parcel is dedicated as Common Area only and will not
be developed with future residential uses. Three other
existing developed lots with single-family residences
located west of the subject parcel are on the other side of Vista Ridge Drive are also located on higher
elevations and are accessible from a different street,
Vista Spring Court. As such, these other residences
contain substantial rear setbacks and the residences
will not face each other. Additionally, existing trees
and established landscaping features obstruct direct
views of the other residences from 531 Vista Ridge
Drive.
(b) Preserve Natural Landscape. The natural
landscape will be preserved insofar as
practicable by designing structures to follow
the natural contours of the site and
minimizing tree and soil removal.
Consistent. The project site is currently vacant and
undeveloped with no trees or shrubs on the proposed
building footprint. All existing trees are on the sloped portions of the lot where development will not occur.
As such, no trees will be removed. As currently
proposed, the design of the house is carefully sited to be built on the flattest portions of the lot, following the natural landscape and existing contours of the site to
limit cut and fill to an equal 453 cubic yards of cut and 213 cubic yards of fill. The amount of cut is due to the excavation for the pool/spa, driveway, and
landscaping.
(c) Minimize Perception of Excessive Bulk. The
design of the proposed main and /or
accessory structure(s) in relation to the
immediate neighborhood should minimize
the perception of excessive bulk.
Consistent. The proposed design includes varying
rooflines, a clear delineation of different colors and
materials, and punctuation of certain front and side
facing elevations to remove the perception of bulk
within the two-story residence. The footprint of the
proposed home is also angled in its orientation to the
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Item # C8.
Resolution No. 23-002
4 Site and Architectural Guidelines
Section XI-10-45.09-7
Consistency Finding
front property line and only contains a partial second
story, thus minimizing the perception of excessive
bulk. The overall building footprint of the main
residence on the 4.29-acre lot is consolidated, and the remaining portions of the lot will also remain
undeveloped.
(d) Impairment of Light and Air. The proposed
main or accessory structure(s) shall not
unreasonably impair the light and air of
adjacent properties nor unreasonably impair
the ability of adjacent properties to utilize
solar energy.
Consistent. The proposed home will not exceed the
maximum height limit for homes east of the crestline,
only has a partial second story, and exceeds all
minimum setbacks as required by the Hillside
development standards. The proposed home has a
combination of flat and minimally pitched roof
systems that could be used to utilize future solar
energy. With regards to adjacent properties, the lots to the north and east are reserved as Common Area and
the residence under construction to the south will be
located on a higher elevation greater than 170-feet
away. The residences to the west are also located
entirely on a higher elevation and are facing Vista
Spring Court from the proposed residence. As such,
the proposed project will not cause an impairment to
the adjacent properties access to light and air.
(e) Grading. All grading shall be kept to an
absolute minimum and shall comply with the
grading ordinance criteria.
Consistent. As designed, the proposed location of the
main dwelling is where the existing lot is relatively flat and the majority of the remainder of the lot is
substantially upsloping or downsloping. The grading is
limited for construction of the driveway, landscaping,
and excavating for the in-ground pool and integrated
spa. The remainder of the existing upsloping and
downsloping topography of the lot will remain
minimally altered to preserve the existing natural
contours of the hillside.
Site & Architectural Design
The project is designed influenced by the California modern bungalow style by utilizing long overhangs for shading and emphasizing natural materials throughout, which adds to the neighborhood’s diversity of housing stock. The home incorporates strong lines, a mixture of high-quality metal or wood and earth tone materials. Articulating the architectural forms and blending with various finishes creates an attractive front elevation. Large windows are concentrated towards the hillside to frame views and provide opportunities for extensive natural lighting. The open plan layout forms an L -shape to encompass the pool/integrated hot tub and outdoor living areas for a seamless indoor-outdoor connection. The layout of the residence together with the natural grading of the lot maximizes privacy for the homeowners and minimizes views into adjacent properties.
The overall color scheme of the residence will have light tan, brown, and gray shades. The exterior materials include a exterior siding in a natural cedar wood color, stacked gray limestone cladding, dark bronze color standing seam metal roofing and garage door. The doors and windows will have a dark bronze color to match the roof and garage door. The roof deck will have a metal guardrail with glass panels. All exterior materials and finishes work together as a palette of earth tone colors creating harmony with the surroundings. The colors and materials proposed are complementary to the character of the rural, neighboring residences. A visual rendering with all materials and colors is demonstrated in the Colors/Materials Sheet G0.3 in Attachment B (Project Plans).
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 116
Item # C8.
Resolution No. 23-002
5 Grading
Due to the proposed residence location from the main road and vehicular access requirements, the site must be graded to make residential development feasible. In an effort to limit the amount of grading, the applicant designed the home on the flattest portion of the site which will result in 453 cubic yards of cut and 213 cubic yards fill for the construction of the new home and the required grade of the driveway for firetruck access. As previously noted, a substantial amount of cut (209 cubic yards) is due to the estimated excavation for the pool and integrated spa area.
Attachment B (Project Plans) demonstrates the preliminary grading plan on Sheet C4 and is consistent with the grading requirements within the Hillside Ordinance.
Crestline Zone of Protection
Per MMC Section XI-10-45.06, the purpose of the Crestline Zone of Protection is to preserve the crestline's natural quality and the slopes immediately below when viewed from the valley floor. To demonstrate compliance, the applicant took pictures from the three nearest vantage viewpoints established by the City from the crestline. As demonstrated in Sheets G0.1 and G0.2 of Attachment B (Project Plans), the project site will not be visible from the valley floor, and is obstructed from views by an existing hill, and is therefore, compliant with the Crestline Zone of Protection.
3. The Project is consistent with the Milpitas General Plan.
As demonstrated in Table 3 below, the Project is consistent with the existing General Plan policies of the Milpitas 2040 General Plan:
Table 3:
General Plan Consistency
Policy Conformance
CD 7-1 Maintain the visual character of
hillsides, recognizing both the importance of the
exposure of hillside development from off-site
public views and the importance of providing
panoramic public views from and of hillsides.
Consistent. The proposed Project will not impact
the visual character of the hillside from the valley
floor or other viewpoints as the project site is
located over a half mile east of the crestline and the
new residence will be shielded by an existing hill
when viewed from the valley floor. Project Plan
sheets G0.1 and G0.2 illustrate how the proposed
residence will not obstruct panoramic public views
from and of the hillsides.
CD 7-2 Minimize the alteration of existing
landforms and maintain the natural topographic
characteristics of the hillside areas, allowing only
minimal disruption.
Consistent. The proposed new residence will be
situated at the flattest portion of the lot to l imit
disruption to the existing natural topography by
limiting cut to 453 cubic yards and fill to 213 cubic
yards for both construction phases. S ubstantial
grading (209 cubic yards) is a result of the
excavation for the pool area at a vertical depth of
4-feet. The remaining 244 cubic yards of cut is for
the driveway and landscaping. The proposed
residence is naturally sited on the existing flattest
portion of the lot as the remainder of the lot is
either significantly downsloping or upsloping.
Therefore, only minimal alterations to the existing
topographical characteristics of the lot are
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 117
Item # C8.
Resolution No. 23-002
6 proposed for the in-ground pool/spa, driveway, and
landscaping.
CD 7-3 Protect the natural character of hillside
areas by means of contour grading to blend
graded slopes and terraces with the natural
topography.
Consistent. Minimal contour grading will be
required for construction of the new residence due
to its siting on the flattest areas of the lot. All new contours will be designed to blend with the natural
existing site contours as demonstrated in the civil
drawings in the plan set. Grading of the driveway
follows the natural contours, does not require steep
cuts, and follows the natural grade of the existing
hillside.
CD 7-4 Avoid mass graded pads within hillside
areas. Smaller steps or grade changes should be
used over single, large, slope banks to the
greatest extent feasible.
Consistent. The building pad is proposed at the
flattest portion of the lot and will necessitate only
minimal grading for the driveway and landscaping.
Grading has been substantially minimized in the
project, in that the siting follows the site's natural
contours, in an effort to preserve the natural terrain
quality. Other grading includes excavation for the
proposed in-ground pool and integrated spa along
an existing flat portion of the lot.
CD 7-5 Ensure that any change in hillside land
use is accompanied by appropriate safety
measures and that the environmental constraints
are adequately addressed especially with respect
to runoff and erosion.
Consistent. No changes are proposed to the
existing land use and zoning designation for the
subject site to be used as a single-family residence.
Prior to construction of the residence, all proposed
project construction and operational details will be
reviewed thoroughly by applicable Departments
during the building permit review process. The
building permit application will be reviewed with
the latest adopted State and local building and
development codes, which will include standard
requirements such as Construction Best
Management Practices (BMPs) and an erosion and
sediment control plan to control runoff onto
adjacent properties.
CD 7-6 Require hillside development to
incorporate architecture, scale, massing, building
form, building color, roof materials, and
landscaping to reflect the natural hillside setting.
Consistent. The proposed Project’s low -profile
building design and earth tone materials and colors
will blend into the rural environment and only
includes a partial second story for reduced massing
and scale. The exterior façade will include
materials such as natural cedar siding and stacked
gray limestone with metal materials and accents on
the roof, windows/doors, and garage door in a dark
bronze color to match. As demonstrated by Sheet
G.03, the 3D renderings show the new residence
with its earth-toned proposed colors and materials
that brings together the natural hillside topography
of the lot. Additionally, the proposed landscaping
materials are consistent with the Hillside
Landscaping Ordinance.
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Item # C8.
Resolution No. 23-002
7 As described above, the Project is compatible and consistent with the surrounding uses and has been found to conform to the intent of the Milpitas 2040 General Plan designation. The proposed home is designed to fit in with the natural topographic features of the property and reduces the visual impact as viewed from the valley floor.
SECTION 4: The Planning Commission of the City of Milpitas hereby recommends the City Council approve Site Development Permit No. SD22-0001 to allow the construction of a single-family residence in the R1-H Single-Family Residential-Hillside Zoning District at 531 Vista Ridge Drive, based on the above findings and subject to the Conditions of Approval attached hereto as Exhibit 1 and incorporated herein.
PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Milpitas on January 25, 2023.
Chair
TO WIT:
I HEREBY CERTIFY that the following resolution was duly adopted at a regular meeting of the Planning Commission of the City of Milpitas on January 25, 2023, and carried by the following roll call vote:
COMMISSIONER AYES NOES ABSENT ABSTAIN
Mercedes Albana
Dipak Awasthi
Bill Chuan
Larry Ciardella
Alexander Galang
Sonia Medina-Ashby
Zeya Mohsin
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE Jan-27-2023
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Item # C8.
Resolution No. 23-002
8 EXHIBIT 1
CONDITIONS OF APPROVAL
SITE DEVELOPMENT PERMIT NO. SD22-0001
531 VISTA RIDGE DRIVE (APN 042-30-029)
GENERAL CONDITIONS
1. General Compliance. The applicant, including all successors in interest (collectively “Permittee”) shall comply with each and every condition set forth in this Permit. Site Development Permit No. SD22-0001 (“Permit”) shall have no force or effect and no building permit shall be issued unless and until all things required by the below -enumerated precedent conditions have been performed or caused to be performed and this Resolution has been recorded by the Permittee with the Santa Clara County’s Recorder Office and a copy shall be provided to the Planning Department. (P)
2. Effective Date. Unless there is a timely appeal filed in accordance with the Milpitas Zoning Code, the date of approval of this Permit is the date on which the decision-making body approved this Permit. (P)
3. A cceptance of Permit. Should Permittee fail to file a timely ap peal within twelve (12) calendar days of the date of approval of this Permit, inaction by Permittee shall be deemed to constitute each of the following:
a. Acceptance of this Permit by Permittee; and
b. Agreement by the Permittee to be bound by, comply with, and to do all things required of or by Permittee pursuant to all of the terms, obligations, and conditions of this Permit.
4. Permit Expiration. Pursuant to Section XI -10-64.06 of the Milpitas Zoning Code, this Permit shall become null and void if the activity permitted by this Permit is not commenced within two (2) years from the date of approval, or for a project submitted with a tentative map, within the time limits of the approved tentative map. Pursuant to Section XI-10-
64.06(B) of the Milpitas Zoning Code, an activity permitted by this Permit shall be deemed to have commenced when the Project:
a. Completes a foundation associated with the Project; or b. Dedicates any land or easement as required from the zoning action; or c. Complies with all legal r equirements necessary to commence the use, or obtains an occupancy permit, whichever is sooner.
5. Time Extension. Pursuant to Section XI -10-64.07 of the Milpitas Zoning Code, unless otherwise provided by State law, Permittee shall have the right to request a one-time extension of the Permit if the request is made in writing to the Planning Division prior to the expiration date of the approval. (P)
6. P roject Job Account. If Permittee’s project job account is at any time delinquent or below the required deposi t amount, City will not continue to review or process the application until Permittee’s private job account is paid in full and the required deposit has been made. Additionally, prior to the issuance of any building permit or occupancy permit, as applicable, Permittee shall pay in full the project account balance and establish a remaining balance of at least twenty- five percent (25%) of the required initial deposit. (ALL)
7. N
otice . Pursuant to California Government Code Section 66020, any protest filed in court relating to the imposition of fees, dedication, reservations, or other exactions to be imposed on the development project shall be filed within ninety (90) days after the date of the adoption of this Resolution. This provision serves as notice from the local agency to the Permittee that the ninety (90) day period in which the applicant may file a protest has begun under California Government Code Section 66020(d)(1). (P)
8. C ost and Approval . Permittee shall fully complete and satisfy each and every condition set forth in this Resolution and any other condition applicable to the Project to the sole satisfaction of the City. Additionally, Permittee shall be solely responsible and liable for the cost to satisfy each and every condition. Permittee shall pay all required fees and charges to City at the rate in effect at time of building permit issuance, or, the rate in effect when the fees and charges are due and paid in full to City. There is no vesting of any fees or charges with the adoption of this Resolution. (P) DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 120
Item # C8.
Resolution No. 23-002
9 9. Conditions. Each and every condition set forth in this Exhibit shall apply to the Project and continue to apply to the Project so long as the Permittee is operating the Project under the permits and approvals in this Resolution. (P)
10. C ompliance with Laws. The construction, use, and all related activity authorized under this Permit shall comply with all applicable local, state, and federal laws, rules, regulations, guidelines, requirements, and policies. (CA/P)
11. P revious Approvals . Permittee shall abide by and continue to comply with all previous City approvals, permits, or requirements relating to the subject property, unless explicitly superseded or revised by this Permit. (ALL)
12. I ndemnification. To the fullest extent permitted by law, Permittee shall indemnify, defend with counsel of the City’s choosing, and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to (i) City's approval of the Project, including but not limited to, the approval of the discretionary permits, maps under the Subdivision Map Act, and/or the City's related determinations or actions under the California Environmental Quality Act, and (ii) Permittee’s construction, operation, use, or related activity under this Permit. This indemnification shall include, but not be limited to, damages awarded against the City, if any, co sts of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. Permittee shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. Permittee shall pay to the City upon demand or, as applicable, to counsel of City’s choosing, any amount owed pursuant to the indemnification requirements prescribed in this condition. (CA)
13. R evocation, Suspension, Modification. This Permit may be suspended, revoked, or modified in accordance with Section XI-10-63.06 of the Milpitas Zoning Code. (P)
14. Sev erability . If any term, provision, or condition of this Permit is held to be illegal or unenforceable by the Court, such term, provision, or condition shall be severed and shall be inoperative, and the remainder of this Permit shall remain operative, binding, and fully enforceable. (ALL)
15. C onditions of Approval . As part of the issuance of building permits, the Permittee shall include within the first four pages of the working drawings for a plan check, a list of all conditions of approval imposed by the final approval of the project. (P)
16. Development in Conformance with Approved Plans: Permittee shall develop the approved Project in conformance with the approved plans approved by the Planning Commission on January 25, 2023, in accordance with these Conditions of Approval.
Any deviation from the approved site plan, elevations, materials, colors, landscape plan, or other approved submittal shall require that, prior to the issuance of building permits, the Permittee shall submit modified plans and any other applicable materials as required by the City for review and obtain the approval of the Planning Director or Designee. If the Planning Director or designee determines that the deviation is significant, Permittee shall be required to apply for review and obtain approval of the Planning Commission or City Council, as applicable, in accordance with the Milpitas Zoning Code. (P)
17. Prior to the issuance of a building permit, the owner or designee shall include within the four first pages of the working drawings for a plan check, a list of all conditions of approval imposed by the final approval of the Project. (P)
18. Streets shall be designed to generally follow the contours and landform in order to minimize cut and fill. Exposed walls facing roadways and retaining walls shall be no greater than six feet in height. Crib walls facing roadways shall be no greater than 15 feet in height. (P)
19. Landscaping coverage and stabilization of graded slopes shall be selected and designed to be compatible with surrounding natural vegetation or to replace removed natural vegetation and should recognize climate, soil, and ecological characteristic of the region. Plant materials that require excessive water after becoming established should be avoided. (P)
20. Within six months, or such other period established by the Planning Commission, after the commencement of grading activities, all graded areas not covered by an impervious surface shall be stabilized in such manner as shall be approved by the Planning Director. (P)
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 121
Item # C8.
Resolution No. 23-002
10 21. The proposed home is located east of the Crestline and is subject to a maximum height of 2 stories or 27 feet. (P)
22. The play lawn area located behind the garage and accessible through an approximately 18-foot wide rear garage door shall not be converted or used for any type of temporary or permanent storage for any form of vehicle or other physical structures for the life of the project. Failure to adhere to this condition may result in a required alteration to the rear garage door as shall be approved by the Planning Director and/or Planning Commission. (P)
FIRE DEPARTMENT CONDITIONS
The plans approved by the Planning Department process are not building plans and have not been reviewed nor approved for conformance to the California Building Code (CBC), California Fire Code (CFC) and the Milpitas Municipal Code (MMC). Do not consider this set of plans as final building plans approved by the Fire Department. Building plans must be submitted for review and approval before construction is to commence. The following notes are a general list of the applicable code requirements (2016) and are provided to assist with the building permit process. Please note that these are not all inclusive. All applicable Building, Fire and Municipal Code requirements must be met in advance of any building permit approvals or related construction.
23. Electronic documents. The fire code official may require electronic base documents for all construction documents and operational permits. The fire code official shall designate the software base format for the electronic documents. CFC Section 105.4.2.2, added by MMC Section V-300-2.11, and CFC Section 102.9
24. Automatic Fire Sprinkler Requirements. An automatic sprinkler system shall be provided throughout the new dwellings (main and guest), inclusive of basements and garages. Milpitas Municipal Code Section V-300-2.62, CFC Section 903.2.8
25. Fire Department access. Sheets A-1.0 and C1.0 shows an acceptable Fire Dept. apparatus access. Fire apparatus access roads shall be provided for every building hereafter constructed when any portion of an exterior wall of the first story is located more than 150 feet from fire apparatus access as measured by an approved route around the exterior of the building. Fire apparatus access shall meet the following:
25.1. Fire apparatus access shall extend to within 150 feet of all portions of exterior walls of the building/structure per the California Fire Code Section 503.1.
25.2. The proposed driveway shall be designed for fire apparatus access. Fire Access Dimensions, fire apparatus access roads shall have an unobstructed width of not less than 20 feet (6096 mm). CFC Section 503.2.1
Exception:
Milpitas Municipal Code XI-45.11 45.11-1 Privately owned and maintained access from the public road to each single-family dwelling shall be a minimum of fourteen (14) feet in width. Turning radius shall be designed to meet the Fire Department's requirements.
45.11-2 Turnout space shall be provided on driveways over one hundred fifty (150) feet in length with a maximum spacing of one hundred fifty (150) feet if driveway is less than eighteen (18) feet wide.
45.11-3 Turnaround. All dwelling units shall provide an on-site area for vehicles to turn around if served by a driveway over one hundred fifty (150) feet in length to meet Fire Department's requirements.
45.11-4 Vertical Clearance. All privately owned and maintained roads and drives shall assure a minimum fourteen (14) foot vertical clearance.
25.3. Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus and shall be surfaced so as to provide all-weather capabilities. Bearing capacity for the driveway and the entry DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 122
Item # C8.
Resolution No. 23-002
11 drive court shall be designed to provide a minimum of 60,000 lbs bearing capacity for the fire apparatus. CFC Section 503.2.3
25.4. When there is a dead-end condition, means for fire apparatus turn-around shall be provided as per the CA Fire Code Section 503.2.5. The Fire Department reserves the right to request site design changes as needed to meet the requirements of the CFC, and/or make the request for additional fire protection measures in conformance with the CFC Section 102.9.
25.5. The grade (maximum 15%) of the fire apparatus access road shall be within the limits established by the fire code official based on the fire department’s apparatus. CFC Section 503.2.7
25.6 . Electric gates. Where provided, gates shall be listed in accordance with UL 325. Gates intended for automatic operation shall be designed, constructed and installed to comply with the requirements of ASTM F 2200. CA Fire Code Section 503.5
Electric gates shall also be provided with a Milpitas Fire Department approved “Knox” electronic switch in addition to the keypad. CA Fire Code Section 102.9
26. Premises identification. New and existing buildings shall have approved address numbers. Address numbers shall be illuminated and located where they are clearly visible from the street. CFC Section 505
27. Water supply requirements. Where a portion of the facility or building hereafter constructed or moved into or within the jurisdiction is more than 400 feet (122 m) from a hydrant on a fire apparatus access road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official. CFC Section 507.5.1 Exception:
For Group R-3 and Group U occupancies, equipped throughout with an approved automatic sprinkler system installed in accordance with Section 903.3.1.1, 903.3.1.2 or 903.3.1.3, the distance requirement shall be not more than 600 feet
28. Sprinkler system supervision and alarms, and monitoring. It is recommended that due to the location of the home (hillside) the automatic fire sprinkler system for this home be a system that has supervision and alarm, and monitoring system in conformance to the CA Fire Code Section 903.4.
BUILDING DEPARTMENT CONDITIONS
29. Compliance with California Code of Regulations. The Project shall comply with the requirements of the Building Safety and Housing Department and the California Code of Regulations Title 24 and the Milpitas Municipal Code as adopted by the City. Building permits shall be submitted to and approved by the Building Safety and Housing Department prior to start of construction. All California Code of Regulations Title 24 and Milpitas Municipal Code requirements applicable at the time of building permit application must be met in advance of any building permit approvals or related construction. Changes to the site plan and/or building plan require review and approval by the Building Safety and Housing Department.
ENGINEERING DEPARTMENT CONDITIONS
PRIOR TO CONSTRUCTION PLAN SUBMITTALS
The following conditions shall be met prior to any detailed construction plan check submittals (Building or Engineering, except demolition and rough grade plans), unless otherwise approved by the Director of Engineering/City Engineer. City reserves the right to reject any plan check submittal if any of the following conditions are not met. (E)
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Item # C8.
Resolution No. 23-002
12 30. Stormwater Control Plan: Permittee shall submit City approved final Stormwater Control Plan (SWCP) that complies with the latest Municipal Regional Stormwater NPDES Permit, including Low Impact Development (LID) Section C3.c.i.(2)(b) measures for harvesting and reuse, infiltration, or evapo-transpiration, for City’s review and approval by the Engineering Department.
31. Submittal Requirements: Permittee to ensure that all plan check submittals are in accordance with City’s submittal check list for each permit type, including but not limited to, payment of permit fees and/or fee deposit at the time of the submittal.
PRIOR TO OFF-SITE PLAN APPROVAL/ENCROACHMENT PERMIT ISSUANCE The following conditions shall be addressed as part of the off-site improvement plan review and shall be met prior to encroachment permit issuance, unless otherwise approved by the Director of Engineering/City Engineer. (E)
32. Public Improvement Design Standards: All public improvements shall be designed and constructed in accordance with all applicable public improvement design standards, including but not limited to:
a. Milpitas Design Guidelines: (http://www.ci.milpitas.ca.gov/milpitas/departments/engineering/design-guidelines/); b. Standard details and specifications: (http://www.ci.milpitas.ca.gov/milpitas/departments/engineering/standard- details-and-specifications/);
c. Americans with Disabilities Act (ADA) requirements, where applicable.
33. Storm Drain Design: Permittee shall submit storm drain hydrology and hydraulic calculations based upon a 10-year storm event to justify the size of the storm drain lateral flowing full, without surcharging the main line pipe, and to be reviewed and approved by the Engineering Department.
34. D omestic Water and Fire Service Calculations: Permittee shall submit potable water and fire service calculations to confirm adequacy of lateral size, pressure and flow, to be reviewed and approved by the Engineering Department and Fire Department. Hydraulic modeling analysis by the City and paid by the Permittee may be required as needed.
Permittee shall be responsible to implement any necessary improvements if there is any identified deficiency to the existing main as a result of the project.
35. Wat er Service Agreement: Permittee shall complete a water service agreement to obtain water service.
36. Encroachment Permit: Prior to any work in the public right-of-way and/or public easement, obtain an encroachment permit with insurance requirements for all public improvements including a traffic control plan per the latest California Manual on Uniform Traffic Control Devices (MUTCD) standards to be reviewed and approved by the Engineering Department.
37. P
othole Encroachment Permit: Due to new utility service connections on City streets, Permittee shall pothole and verify all potential utility crossing conflict as part of the public improvement plan during the design stage.
38. Wat er Efficient Landscapes: Permittee shall comply with Milpitas Municipal Code Title VIII, Chapter 5 Water Efficient Landscapes for landscape design, including but not limited to, providing separate water meters for domestic water service and irrigation service and providing applicable landscape documentation package.
39. S
olid Waste and Recycling Facility Design: Permittee shall comply with all applicable City design guidelines/details associated with haul route, turning radius, vertical and horizontal clearance, trash enclosure, staging area, storage area, etc.
40. S olid Waste Management: The project must meet all Milpitas Sanitation and SB 1383 requirements for solid waste management.
41. Mai lboxes: The Permittee shall obtain information from the US Postal Services regarding placement of required mailboxes. Structures to protect mailboxes may require Building, Engineering and Planning Divisions review.
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 124
Item # C8.
Resolution No. 23-002
13 DURING CONSTRUCTION
The following conditions shall be complied with at all times during the construction phase of the project, unless otherwise approved by the Director of Engineering/City Engineer. (E)
42. Dewatering: If dewatering is needed during construction, Permittee shall obtain a Short-Term Industrial Wastewater Permit from the San Jose/Santa Clara Water Pollution Control Plant for discharging the groundwater to a sanitary sewer system.
43. On-site Recycle Water Coordination: Permittee’s cross-connection specialist shall coordinate the phasing of the construction; facilitate the cross-connection testing in order to minimize the impact for occupied buildings during cross-connection testing; sign-off before the water meter set; coordinate on-site construction inspection; complete the site inspection; fill out required paperwork/questionnaire; and provide them to the City for forwarding to South Bay Water Recycling.
44. Prohibition of Potable Water Usage: Permittee shall use recycled water for construction purposes, including dust control and compaction. Permittee shall comply with MMC VIII-6-5.00 and 6-6.00 where potable water usage is prohibited, unless otherwise approved by the City Council.
45. Construction Staging and Employee Parking: Permittee shall place all construction related materials, equipment, and arrange construction workers parking on-site and not located in the public right-of-ways or public easements.
46. Water Shut-down Plan: Permittee shall provide a water shut-down plan at least seven days in advance of the shut- down in coordination with the Engineering Inspector, and notify affected property owners/tenants when cut-in tee(s) is/are required.
PRIOR TO FIRST OCCUPANCY
The following conditions shall be met prior to first building occupancy on either lot, unless otherwise approved the Director of Engineering/City Engineer.
47. Completion of Public Improvements: Permittee shall complete all public improvements, including but not limited to frontage improvements and fire hydrants, as shown on City approved plans.
48. Landscape Certificate of Completion: Permittee shall submit a Certificate of Substantial Completion that complies with the Milpitas Municipal Code Water Efficient Landscapes ordinance.
LEGEND
(P) = Planning Department
(B) = Building Department
(E) = Engineering Department
(F) = Fire Department
(CA) = City Attorney
ALL = All Reviewing Departments
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 125
Item # C8.
Resolution No. 23-002
14 NOTICE OF RIGHT TO PROTEST
The Conditions of Project Approval set forth herein include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d)(1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90- day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), began on date of adoption of this resolution. If you fail to file a protest within this 90 -day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions.
AGREEMENT
Permittee/Property Owner
The undersigned agrees to each and every condition of approval and acknowledges the NOTICE OF RIGHT TO PROTEST and hereby agrees to use the Project property on the terms and conditions set forth in this resolution.
Dated: _________________ ______________________________________ Signature of Permittee
DocuSign Envelope ID: 997FEE68-0962-471B-9826-EC5A41F9BFAE DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 Feb-06-2023
126
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Certificate Of Completion
Envelope Id: 997FEE680962471B9826EC5A41F9BFAE
Status: Completed
Subject: Complete with DocuSign: Reso 23-002 - 531 Vista Ridge for DocuSign for Chair.pdf Source Envelope:
Document Pages: 14
Signatures: 1
Envelope Originator:
Certificate Pages: 5
Initials: 0
Elizabeth Medina
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
455 E Calaveras Blvd
Milpitas, CA 95035
[email protected]
IP Address: 50.59.22.2
Record Tracking
Status: Original
January 26, 2023 | 10:20
Holder: Elizabeth Medina
[email protected]
Location: DocuSign
Signer Events
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Timestamp
Chair Bill Chuan
[email protected]
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Sent: January 26, 2023 | 10:23
Viewed: January 27, 2023 | 07:09
Signed: January 27, 2023 | 07:09
Electronic Record and Signature Disclosure:
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ID: 2c394816-2b75-4f96-8a49-05a71317abf3
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Kristina Phung
[email protected]
Security Level: Email, Account Authentication
(None)
Sent: January 26, 2023 | 10:23
Viewed: January 26, 2023 | 13:34
Electronic Record and Signature Disclosure:
Accepted: September 12, 2022 | 08:39
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Completed
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DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 127
Item # C8.
Payment Events
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DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 128
Item # C8.
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, Carahsoft OBO City of Milpitas (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system.
Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below.
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If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below.
Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us.
All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: January 13, 2020 | 13:50 Parties agreed to: Chair Bill Chuan, Kristina Phung
DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 129
Item # C8.
Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us.
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To withdraw your consent with Carahsoft OBO City of Milpitas To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:
DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 130
Item # C8.
i. decline to sign a document from within your signing session, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an email to [email protected] and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process..
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Until or unless you notify Carahsoft OBO City of Milpitas as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by Carahsoft OBO City of Milpitas during the course of your relationship with Carahsoft OBO City of Milpitas.
DocuSign Envelope ID: BC7D9E21-F1A0-4D7A-ADD9-2F3FC9EE2250 131
Item # C8.
OWNERMILAN BRAHMBHATT1089 RANKIN DRIVEMILPITAS, CA 95035TEL: 408 802 9411EMAIL: [email protected] SHANKTIMBRE ARCHITECTURE1130 KEELER AVE, SUITE 1BERKELEY, CA 94708TEL: 415 200 8106EMAIL: [email protected]: 531 VISTA RIDGE DR., MILPITAS, CA, 95035BLOCK/LOT:042-30-029OCCUPANCY: R-3ZONING DISTRICT: R1-HCONSTRUCTION TYPE:V-BSETBACKSREQUIREDPROVIDEDFRONT:25' 206'-9"SIDE YARD A:40'134'-8"SIDE YARD B:40'40'REAR:40'264'-0"PARKING:REQUIREDPROVIDEDMAIN RESIDENCE34ADU12TOTAL SPACES46BUILDING HEIGHT & BULKPRINCIPAL STURCTUREREQUIREDPROVIDEDPROPOSED HEIGHT MAX. 27'25'-6"STORIES:MAX 22ADUPROPOSED HEIGHT MAX 17'15'-5"STORIES:MAX 11SITE STATISTICSGROSS LOT AREA:187,080 sf / ± 4.29 ACRESLOT COVERAGE:12,833 sfOPEN SPACE CALCULATION:174,247 sfAVERAGE SLOPE:14.51%BUILDING AREA CALCULATIONSAREA1ST FL2ND FLTOTALHOUSE & STORAGE2511 sf836 sf3347 sfADU1200 sf1200 sfGARAGE1012 sf1012 sfROOF DECK 247 sf247 sfCOVERED UNENCLOSED PATIO594 sf594 sfPOOL/HOT TUB864 sf864 sfPOOL EQPT190 sf190sfTOTAL = 6371 sf1083 sf7454 sfPROGRAMBEDSBATHSPRINCIPAL STRUCTURE43 1/2ADU21 1/2 CODE REVIEW INFORMATIONAPPLICABLE CODES: ALL WORK DONE UNDER THIS CONTRACTSHALL COMPLY WITH THE PROVISIONS OF THE SPECIFICATIONS,DRAWINGS, AND CONSTRUCTION CRITERIA SET FORTH IN THESEDOCUMENTS AND SHALL SATISFY ALL APPLICABLE CODES,ORDINANCES, AND REGULATIONS OF ALL GOVERNING BODIESINVOLVED. ANY MODIFICATIONS TO THE CONTRACT WORKREQUIRED BY SUCH AUTHORITIES SHALL BE PERFORMED BY THEOWNER'S CONTRACTOR. ALL PERMITS AND LICENSESNECESSARY FOR THE EXECUTION OF THE WORK SHALL BESECURED AND PAID FOR BY THE TENANT'S CONTRACTOR(S).APPLICABLE CODES INCLUDE, BUT ARE NOT LIMITED TO THEFOLLOWING:THE MOST CURRENT OF THE FOLLOWING:2019 CALIFORNIA BUILDING CODE2019 CALIFORNIA PLUMBING CODE2019 CALIFORNIA ELECTRICAL CODE2019 CALIFORNIA MECHANICAL CODE2019 CALIFORNIA ENERGY CODE (TITLE 24)ANY APPLICABLE MILPITAS CODE AMENDMENTS2019 CALIFORNIA RESIDENTIAL CODEGREEN BUILDING STANDARDS CODE (CalGreen)BUILDING SHALL BE SPRINKLERED UNDER SEPARATE PERMIT
DRAWING INDEXSCOPE OF WORKPROJECT DIRECTORYPROJECT INFORMATIONAPPLICABLE CODES
ABREVIATIONS
ARCHITECTURALSYMBOLSCONTRACTOR TBDVICINITY MAP
CENTER LINE
ELEVATION:SHEET NUMBERELEVATION NUMBER
ELEVATION TAGREVISIONPROPERTY LINEDOOR TAG:WINDOW TAG:DETAIL NUMBERSHEET NUMBERDETAIL:SECTION NUMBERSHEET NUMBERSECTION:
CLLP SUBJECT PROPERTY
WITHOUTVERTICALSTRUCTURALUNLESS OTHERWISE NOTEDTONGUE & GROOVETHICKTYPICALSTEELWITH
AIR CONDITIONING
abbreviations not listed.NOTE: Clarify with Architect all HVAC
W/O
HOSE BIBBGYPSUM BOARDGALVINIZEDFACE OF CONCRETEHARDWOODHARDWAREHDWD.HDWE.GYP. BD.H.B.GALV.F.O.C.
VERT.W/TYP.U.O.N.T & GTHK.STRUC.STL.REQUIREDSCHEDULESQUARE FOOTROUGH OPENINGREINFORCEDPLYWOODPROPERTY LINEOVERHEADON CENTERINTERIORNOT IN CONTRACTNEW
STAINLESS STEEL
FINSH FLOOREXTERIORELEVATIONFLOOREXT.F.F.FLR.EL.ELEV.
S.F.S.S.R.O.SCHED.REQ'D.REINF.(R)
CONCRETECOLUMNCAULKINGCEILINGDOWNCLEAREXISTING(E)DN.CONC.CLG.CLKG.COL.CLR.
PLYWD.P.L.O.C.OH.(N)N.I.C.
BETWEENABOVE FINISHED FLOORBLOCKINGALTERNATEARCHITECTURALAPPROXIMATEBOARDBTWN.BLK'G.BD.APPROX.A.F.F.ALT.ARCH.
INT.HEATING, VENTILATION ANDMISCELLANEOUSMECHANICALMAXIMUMMANUFACTURERJOISTMISC.MAX.MECH.MFR.JST.
ELEVATION
REMODELED OR RELOCATED
DOOR NUMBERDOOR TYPEWINDOW NUMBERWINDOW TYPE
THE PROJECT CONSISTS OF A NEW TWO STORYSINGLE FAMILY RESIDENCE WITH ATTACHEDGARAGE AND SINGLE STORY ACCESSORYDWELLING UNIT. THE PRIMARY RESIDENCEINCLUDES AN IN-GROUND POOL AND INTEGRATEDHOT TUB, LAWN AREAS, COVERED UNENCLOSEDPATIO, AND ROOF DECK FROM THE SECOND-STORYPRIMARY BEDROOM.
PROPOSED RENDERINGS
ENERGY CONSULTANTTBD
NORTHWEST VIEW
EAST VIEWSOUTHEAST VIEW
CIVIL ENGINEERNINH LE, PE, QSDLC ENGINEERING598 E SANTA CLARA ST. STE 270SAN JOSE, CA 95112TEL: 408 806 7187EMAIL: [email protected] DESIGNERTODD KALBFELDTODD KALBFELD LANDSCAPE DESIGN2345 TULIP RD.SAN JOSE, CA 95128TEL: 408 605 9973EMAIL: [email protected]
VISTA RIDGE DRIVEVISTA RIDGE DRIVE
G0.0 COVER SHEETG0.1CRESTLINE MAP & VIEW POINT IMAGESG0.2AREA DIAGRAMS & SITE PHOTOSG0.3COLOR & MATERIALS BOARDCIVILC1GENERAL NOTESC2BLUEPRINT FOR A CLEAN BAYC3BOUNDARY SURVEY & TOPOGRAPHIC MAPC4OVERALL SITE PLANC5DRIVEWAY PLANC6DRIVEWAY PROFILE & SECTIONSC7MAIN HOUSE & ADU GRADING & DRAINAGE PLANC8BUILDING CROSS SECTIONSC9EROSION CONTROL PLANC10EROSION CONTROL DETAILSARCHITECTURALA1.0SITE PLANA2.0FIRST FLOOR PLANA2.1SECOND FLOOR PLANA2.2ROOF PLANA3.0EXTERIOR ELEVATIONSA3.1EXTERIOR ELEVATIONSA3.2EXTERIOR SECTION / ELEVATIONA4.0BUILDING SECTIONSA4.1BUILDING SECTIONSA10.0DOOR & WINDOW SCHEDULESLANDSCAPEL-1MATERIALS AND SITE PLANL-2CONSTRUCTION DETAILSL-3LANDSCAPE PLANTING PLAN
STRUCTURAL ENGINEERTBD
NTSG0.0COVER SHEET
BS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 132
Item # C8.
B. STREET VIEW FROM VIEWPOINT 8 - SINCLAIR FWY (I-680) AT CHEWPON AVE.STRUCTURE NOT VISIBLE, BLOCKED BY RIDGELINE IN FOREGROUND A. STREET VIEW FROM VIEWPIONT 7 - YOSEMITE DR. AT DEMPSEY RD.STRUCTURE NOT VISIBLE, BLOCKED BY RIDGELINE IN FOREGROUND C. STREET VIEW FROM VIEWPOINT 9 - LANDESS AVE. AT DEMSEY RD.STRUCTURE NOT VISIBLE, BLOCKED BY RIDGELINE IN FOREGROUND VIEWPOINT 7EYE LEVELSUBJECT PROPERTY869' ABV EYE LEVELVP 7LINE OF SIGHTLINE OF SIGHT ~9844'VISIBLE FROM VIEWPOINT~3047'NOT VISIBLE FROM VIEWPOINT~12892'
HILL OBSTRUCTIONSUBJECTPROPERTY
VIEWPOINT 8EYE LEVELVP 8SUBJECT PROPERTY852' ABV EYE LEVELLINE OF SIGHTLINE OF SIGHT~10517'VISIBLE FROM VIEWPOINT~2836'NOT VISIBLE FROM VIEWPOINT~13353'
HILL OBSTRUCTIONSUBJECTPROPERTY
VIEWPOINT 9EYE LEVELVP 9SUBJECT PROPERTY837' ABV EYE LEVELLINE OF SIGHTLINE OF SIGHT~10469'VISIBLE FROM VIEWPOINT~2705'NOT VISIBLE FROM VIEWPOINT~13174'
HILL OBSTRUCTIONSUBJECTPROPERTY
789 FIRST FFE0'-0" (345.5')SECOND FFE25'-6" (371.0')ADJACENT PROPERTY EYE LEVEL~41'-6" (387.0')SUBJECT PROPERTY EYE LEVEL25'-6" (371.0')
LINE OF SIGHTLINE OF SIGHT
SUBJECT PROPERTY:531 VISTA RIDGE DR.
CLOSET ADJACENT PROPERTYAPPROVED LOCATION OFPROPOSED HOUSE AT529 VISTA RIDGE DR.
NTSG0.1CRESTLINE MAP& VIEW POINTIMAGESBS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 1SITE SECTION AT VIEWPOINT 71"=10000'
2SITE SECTION AT VIEWPOINT 81"=10000'
3SITE SECTION AT VIEWPOINT 91"=10000'
5PHOTO KEY MAPN
4VIEWPOINT IMAGES
6LINE OF SIGHT DIAGRAM1/16" = 1'-0"
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3AREA DIAGRAMS - SECOND FLOOR
2AREA DIAGRAMS - FIRST FLOOR
1AREA CALCULATIONS
HOUSE &STORAGE2511 SFGARAGE1012 SF
ADU1200 SF
HOUSE&STORAGE836SF
BUILDING AREA CALCULATIONSAREA1ST FL2ND FLTOTALHOUSE & STORAGE2511 sf836 sf3347 sfADU1200 sf1200 sfGARAGE1012 sf1012 sfROOF DECK 247 sf247 sfCOVERED UNENCLOSED PATIO594 sf594 sfPOOL/HOT TUB864 sf864 sfPOOL EQPT190 sf190sfTOTAL = 6371 sf1083 sf7454 sf ROOFDECK247 SF
POOL864 SFCOVEREDUNENCLOSEDPATIO594 SF
4SITE PHOTOS
A. VIEW FACING SOUTHWESTA. VIEW FACING SOUTH
A. VIEW FACING SOUTHEASTA. VIEW FACING EAST
A. VIEW FACING NORTHWESTA. VIEW FACING WEST
POOL EQPT190 SF
116" = 1'- 0"G0.2AREA DIAGRAMS& SITE PHOTOSBS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 134
Item # C8.
3D PERSPECTIVE - WEST (BACK)
3D PERSPECTIVE - SOUTH (FRONT)
ROOFING:STANDING SEAM METALROOF, DARK BRONZECOLORCOLORS AND MATERIALS EXTERIOR STONE CLADDING:STACKED GRAY LIMESTONE,SQUARE CUT W/ MINIMUMGROUT LINES SITE RETAINING WALL:BOARDFORMCONCRETE,NATURAL COLOR
EXTERIOR SIDING:NATURAL CEDAR,SELECT TIGHT KNOT ORBETTER GRADE W/CLEAR SEALER 1 23
4 41 23
3214
EXTERIOR ROOF DECK:METAL GUARDRAIL W/GLASS INFILL PANELS5 5 67
8 WINDOWS & DOORS:METAL DOOR AND WINDOW FRAMES,DARK BRONZE COLOR GARAGE DOORS:METAL DOORS, DARK BRONZE COLORTO MATCH THE EXTERIOR WINDOW &DOOR FRAMES PATIO COVER:STEEL FRAME STRUCTURE WITHBAMBOO OR WOOD SLAT INFILL 6 7
8 11.30.23
531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 N.T.S.G0.3COLORS/MATERIALSBS
135
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INDEX OF DRAWINGS
CIVIL ENGINEER:
IMPROVEMENT PLANS GENERAL NOTES IMPROVEMENT PLANS PROJECT NAME:_________________________ LOT NO._______, TRACT NO.______
CITY OF MILPITASENGINEERING DIVISION
AIT
INCORPORATED
SYTICCALIFORNIAJANUARY 26, 1954OFLMIP
Record DrawingsRevisionsENGINEERING DIVISIONCITY OF MILPITAS
CITY OF SAN JOSE
CITY OF FREMONT
COUNTY OF SANTA CLARA
CITY OF SAN JOSE
COUNTY OF ALAMEDA
COUNTY OF
COUNTY OF ALAMEDA
COUNTY OF SANTA CLARA
SANTA CLARA
COUNTY OF SANTA CLARA
CITY OF SAN JOSE
CITY OF SAN JOSE
COUNTY OF SANTA CLARA
ImprovementsTitle Block
531 VISTA RIDGE DRIVE6744D
SOILS ENGINEER:
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CIVIL ENGINEER: Record DrawingsRevisionsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
137
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G.H.Z (B)
G.H.Z (B)
G.H.Z (A)
CIVIL ENGINEER: Record DrawingsRevisionsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
LEGEND & ABBREVIATIONS
TRACT NO. 6744"AMENDED FINAL MAP"588 M 9LOT DAPN 042-30-029 LOT SIZE 187,080± SQ. FT. / 4.29± ACRES
LOT 15APN 042-30-015
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UP
G.H.Z (B)
G.H.Z (B)
G.H.Z (A)
V I S T A R I D G E D R I V E(NOT A COUNTY MAINTAINED ROAD) TRACT NO. 6744"AMENDED FINAL MAP"588 M 9LOT DAPN 042-30-029 LOT SIZE 187,080± SQ. FT. / 4.29± ACRES
MAIN HOUSEADU POOL
GARAGEDWY
RETENTIONPOND
LOT 15APN 042-30-015
CIVIL ENGINEER: Record DrawingsRevisionsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
LEGEND & ABBREVIATIONS
DISTURBED AREASEARTHWORK QUANTITY
139
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MAIN HOUSE FF = 345.5
GARAGE
COMMONENTRY345.08
FIRE TRUCK TURNAROUND
B2 = 583 SF
B3 = 6,607 SF
B4 = 362 SF
B4 = 880 SF
RETENTION PONDELEV = 330.0
PRIVATE PATIO
V I S T A R I D G E D R I V E(NOT A COUNTY MAINTAINED ROAD) CIVIL ENGINEER: Record DrawingsRevisionsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
NOTES:
140
Item # C8.
DRIVEWAY PROFILE
GARAGE
CIVIL ENGINEER: Record DrawingsRevisionsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
141
Item # C8.
MAIN HOUSE FF = 345.5
GARAGE
COMMONENTRY345.08
UP
FIRE TRUCK TURNAROUND
ADU FF = 345.5
POOL
PATIO
PATIO
G.H.Z (A)
G.H.Z (B)G.H.Z (A)
G.H.Z (B)
PLAY LAWN AREA
ENTRY LAWN AREA
PRIVATE PATIO
POOL EQUIP.WITH ENCLOSURE336.00
345.40
LAWN AREA340.0COVERED PATIO
PATIO
CIVIL ENGINEER: Record DrawingsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
142
Item # C8.
1ST FF = 345.5SECTION A-A
POOL
GARAGE
DWY
SECTION B-BPATIOWLK
ADU FF = 345.5
MAIN 1ST FF = 345.5SECTION C-C
WLK
CIVIL ENGINEER: Record DrawingsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
143
Item # C8.
UP
G.H.Z (B)
G.H.Z (B)
G.H.Z (A)
G.H.Z (A)
G.H.Z (B)G.H.Z (A)
G.H.Z (B)
LOT 15APN 042-30-015
V I S T A R I D G E D R I V E(NOT A COUNTY MAINTAINED ROAD) TRACT NO. 6744"AMENDED FINAL MAP"588 M 9LOT DAPN 776-35-012 LOT SIZE 187,080± SQ. FT. / 4.29± ACRES
CIVIL ENGINEER: Record DrawingsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
144
Item # C8.
CIVIL ENGINEER: Record DrawingsENGINEERING DIVISIONCITY OF MILPITASSOILS ENGINEER:
145
Item # C8.
UPUP
UP
N64'32'16'0N
220'-0"
149'-7"
196'-2"
219'-6"
VISTA RIDGE DRIVE
450'-0"
65'-5"
8' DEER FENCE, W/ GATEAT DRIVEWAY, SEELANDSCAPE DWGS
LOCATION FOR UTILITY ENTRANCE,MAIL, POST ADDRESS, AND TRASHRECEPTACLE PLACEMENT(2) ADU 9'x18'PARKING SPACES GARAGE W/ (4) 10' x 20' PARKING SPACES
PROPERTY LINE25' PROPERTY SETBACK LINE
ADJACENT PARCEL PROPERTY LINEADJACENT PROPERTY:529 VISTA RIDGE DR. 18' X 48' POOL & INTEGRATED HOT TUB,S.L.D.
TRASH ENCLOSURE, S.L.D.
MAIN HOUSE
SYMBOL LEGENDPROPERTY LINESETBACK REQUIREDDEER FENCE
40'-0"
40'-0"40'-0"
25'-0"
40'-0"
NN1PLOT PLAN1/32" = 1'-0"
LAWN AREACOVERED UNENCLOSED PATIOPLAY LAWN AREA IS NOT INTENDED FORPARKING OR ADDITIONAL STRUCTURES COVERED WALKWAY(E) TREES, SEE LANDSCAPE DWGSFOR EXACT SIZE AND LOCATIONS134-8"PROVIDED 206'-9"PROVIDED
264'-0"PROVIDED
SETBACK PROVIDED
SETBACK PROVIDED
ADU
POOLPATIOLAWN
G0.16
POOL EQUIPMENT, S.L.D.
DNDN
AVG SITE SLOPE = 14.51%
10'-0"
PUBLIC SERVICEEASEMENT
PUBLIC SERVICE EASEMENT, SEECIVIL PLANSEXISTING FIRE HYDRANT, SEE CIVILPLANS FOR LOCATION 8' DEER FENCE
8' DEER FENCELANDSCAPED WALKWAY, S.L.D. FORCOMPLETE LANDSCAPE PLAN 1/32"=1'-0'A1.0SITE PLAN
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 BS
4 146
Item # C8.
BEDROOM 1258sfCOMMON ENTRY159sf
DINING ROOM186sf
KITCHEN190sf
LIVING ROOM306sf
PLAY ROOM110sf
PANTRY 44sfPRAYERROOM105sf
BEDROOM 3150sfBEDROOM 2151sfBATH 254sfBATH 356sfUPPWDR 35sf N
KITCHEN146sf
PWDR.22sf LAUNDRY 51sf
GREAT ROOM329sf
5'-0"CLR11'-6"7'-8 1/2"11'-6"±19'-2"
BEDROOM 2137sf
BEDROOM 1136sfBATH 155sfLINEN CL. 9sfPRAYERNOOK
CLOSET 12sfWDDW
GARAGE944SF
5'-7"
REF.
REF.PAN.
10'-6"
18'-9"9'-1"
12'-2 1/2"46'-0"17'-0"125'-3"
21'-6 1/2"89'-4"
17'-8 1/2"35'-6"22'-0"
PROJECTNORTH1FIRST FLOOR PLAN3/16" = 1'-0" 12'6'3'0
4'-2"±3'-3"
ALIGN
COVERED UNENCLOSED PATIO
MAIN RESIDENCE
ADU
101
127125
126
124121120119118
122116123128109
110
105106
108
111112113114
115
103104130143129132131
133134135136137138139140141
142
117
UPUP
UP
18'-0"18'-0"
18'-0"COVERED WALKWAYLAUDRY 20sf CLOSET53sf
43'-8"
2'-1"3'-10"5'-7 1/4"±4'-11"1'-7"
2'-1"
8'-10"7'-4"CLR±4'-6"CLR
3'-6"4'-0"CLR
3'-3"CLR±3'-6"CLR
9'-0 1/2"
5'-10 1/4"4'-0"5'-0"18'-0"12'-0"±14'-11" 8'-7"
9'-3 1/4"
11'-6"5'-0"CLR11'-6"8'-3"±12'-3"
10'-3 1/2"
GFDCA B E1
3 76
5 4
2 1
3 6
5 4
2 7
GFDCA B E
SHEET NOTES1.ALL DIMENSIONS ARE FROM FACE OFFRAMING, TYP., U.N.O. 6'-8"6'-5 1/4"
4'-0"CLR5'-8 3/4"5'-0"2'-1"
A3.01
A3.02
A3.12A3.11
A4.01
A4.02
A3.22A3.21 A4.02
A4.01
PLAY LAWN AREA IS NOT INTENDED FORPARKING OR ADDITIONAL STRUCTURES
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A2.0FIRST FLOOR PLAN
BS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 4
4 147
Item # C8.
PRIMARYBEDROOM254sf
W.I.C.59sf BATH 1103sfOFFICE151sf
GREEN ROOFBOOK SHELVES
1SECOND FLOOR PLAN3/16" = 1'-0" NPROJECTNORTH
A3.01
A3.02
A3.12A3.11
A4.01
A4.02
A3.22A3.21 A4.02
A4.01LOW SLOPEMEMBRANE ROOFROOF OF COVERED WALKWAY BELOW
ROOF DECK
12'6'3'0
26B27A
28B
30204
203
201202205
206
26A27B
28A29
COVERED UNENCLOSED PATIO BELOW
8'-7 1/2"±12'-2"22'-0"
12'-3 1/2"7'-0"4'-0"CLR±12'-10"
13'-0"19'-0"
±8'-5 1/2"CLR
±3'-5"CLR
38'-0"
GFDCA B E1
3 76
5 4
2 1
3 6
5 4
2 7
GFDCA B E
SHEET NOTES1.ALL DIMENSIONS ARE FROM FACE OFFRAMING, TYP., U.N.O. 7'-4"CLR
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A2.1SECOND FLOORPLANBS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 4
148
Item # C8.
LOW SLOPEMEMBRANE ROOF
ROOF DECK
GREEN ROOF4-5" SOIL WITH GRASSESAND OTHER EXTENSIVEPLANTS 1ROOF PLAN3/16" = 1'-0" N
SLOPE 9.9%, 12 : 1.1875SLOPE 9.9%, 12 : 1.1875
SLOPE 9.9%, 12 : 1.1875
SLOPEMIN 2%, 12 : .125
SLOPEMIN. 2%, 12 : .125
SLOPEMIN 2%, 12 : .125
SOLAR PV AREASOLAR PV AREA
PROJECTNORTH
A3.01
A3.02
A3.12A3.11
A4.01
A4.02
A3.22A3.21 A4.02
A4.01
12'6'3'0COVERED UNENCLOSED PATIO BELOW
ROOF OF COVERED WALKWAY BELOW
GFDCA B E1
3 76
5 4
2 1
3 6
5 4
2 7
GFDCA B E
SHEET NOTES1.ALL DIMENSIONS ARE FROM FACE OFFRAMING, TYP., U.N.O.
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A2.2ROOF PLAN
BS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 4
149
Item # C8.
WOOD SIDING
METAL FASCIAMETAL ROOF
STONE CLADDINGMETAL FRAME WINDOW
METAL CLADDING
WOOD SIDING
METAL FASCIA
STONE CLADDINGALUMINUM GARAGE DOOR
METAL CLADDINGMETAL FRAME WINDOW & DOOR
FIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
1WEST ELEVATION12'6'3'0
ADUPRIMARY RESIDENCE
MAIN RESIDENCE
GARAGE
ADU
GRADE
EXTERIOR LIGHTING
WOOD SIDING
METAL FASCIA
STONE CLADDINGMETAL FRAME WINDOW
METAL CLADDING
ALUMINUM GARAGE DOOR
METAL FRAME WINDOWMETAL FASCIAMETAL CLADDINGMETAL FRAME WINDOWGLASS GUARDRAIL FIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
2EAST ELEVATION
METAL TRELLIS O/ COVEREDUNENCLOSED PATIOCOVERED WALKWAY 3'-6"AFF
MAIN RESIDENCE
GARAGE
ADU
GRADE
EXTERIORLIGHTING
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A3.0EXTERIORELEVATIONSBS
150
Item # C8.
WOOD SIDING
METAL FASCIAMETAL ROOF
METAL FRAME WINDOW
METAL CLADDINGMETAL CLADDINGMETAL FRAME WINDOWMETAL FASCIA CONCRETE RETAINING WALLFIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
1SOUTH ELEVATION12'6'3'0
METAL TRELLIS OVER COVEREDUNENCLOSED PATIO
ADUGARAGE
MAIN RESIDENCE
COVERED UNENCLOSED PATIO
EXTERIOR LIGHTING
WOOD SIDINGMETAL FRAME SLIDING DOORS
METAL FASCIAMETAL CLADDINGMETAL FRAME WINDOWGLASS GUARDRAILSECOND FFE11'-10" (357.3') FIRST FFE0'-0" (345.5')
T.O. ROOF25'-6" (371.0')
2NORTH ELEVATION - MAIN RESIDENCE
METAL TRELLIS OVER COVEREDUNENCLOSED PATIO3'-6"AFF
COVERED UNENCLOSED PATIOGRADEEXTERIOR LIGHTING
11'-10"
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A3.1EXTERIORELEVATIONSBS
151
Item # C8.
GARAGEWOOD SIDINGMETAL FRAME WINDOW
METAL FRAME WINDOWGLASS GUARDRAIL
METAL FASCIAMETAL ROOF
FIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')
2SOUTH SECTION / ELEVATION - MAIN RESIDENCE
METAL TRELLIS OVER COVEREDUNENCLOSED PATIO
COVERED WALKWAY
3'-6"AFF
COVERED UNENCLOSED PATIOGRADE
EXTERIOR LIGHTING
8'-10 1/2"
11'-10"
WOOD SIDING
METAL FASCIAMETAL ROOF
METAL FRAME WINDOW
METAL CLADDING
GARAGEFIRST FFE0'-0" (345.5')
ADU T.O. ROOF15'-5" (360.9')
1NORTH SECTION / ELEVATION - ADU12'6'3'0
COVERED WALKWAY
GRADE
EXTERIOR LIGHTING
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A3.2EXTERIOR SECTION/ELEVATIONSBS
152
Item # C8.
BEDROOMBEDROOM 2KITCHENPRAYER ROOM
KITCHENDINING ROOMFIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
FIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
1BUILDING SECTION12'6'3'0
2BUILDING SECTION
SITE WALL, TYP. SEE CIVIL DWGS
SITE WALL, TYP. SEE CIVIL DWGS
MAIN RESIDENCE
GARAGE BEYOND
ADU
MAIN RESIDENCE
GARAGE BEYOND
ADU
POOL
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 316" = 1'-0"A4.0BUILDING SECTIONS
BS
153
Item # C8.
BEDROOM 1
LIVING ROOMPLAY ROOMPRAYER ROOMPRIMARY BEDROOMOFFICECOMMON ENTRYROOF DECKCOVERED UNENCLOSED PATIO FIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
FIRST FFE0'-0" (345.5')
SECOND FFE11'-10" (357.3')
T.O. ROOF25'-6" (371.0')ADU T.O. ROOF15'-5" (360.9')
1BUILDING SECTION - MAIN RESIDENCE12'6'3'0
2BUILDING SECTION - MAIN RESIDENCE
SITE WALL, TYP. SEE CIVIL DWGS
SITE WALL, TYP. SEE CIVIL DWGSPOOL 3'-6"
SEE LANDSCAPE DWGS FOR POOL DEPTH
11'-10"
GLASS GUARDRAIL
11'-10"
316" = 1'-0"A4.1BUILDING SECTIONS
BS
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 154
Item # C8.
DOOR SCHEDULENO.HEIGHTWIDTHDOOR OPENINGREMARKSTYPEAREA
COREDOORHDWR
DOOR HARDWARE TYPES: PA = PASSAGEPO = POCKET DOOR HARDWARE w/ LOCKPL = PULL/PUSH PLATE ONLYPR = PRIVACYCL = CLOSETSC = SLIDING CLOSETAP = APARTMENT DB = PUSH PLATE/DOOR PULL w/ DEADBOLTEG = EXTERIOR GATEEX = EXTERIOR: EXTERIOR LOCK W/ DEAD BOLT SD = EXTERIOR: SLIDING W/ LOCK DOOR CONSTRUCTION: SC = SOLID CORESR = STILES & RAILSHC = HOLLOW COREGL = GLASS FR = MTL FRAME w/WOOD SLATS HM = HOLLOW METAL 2DOOR ELEVATIONS AND SCHEDULE WINDOW NOTES:1. ALL FENESTRATION MUST MEET THE FOLLOWING MANDATORY ENERGYREQUIREMENTS:A.Air infiltration rates for manufactured fenestration and petdoors must be ≤0.3cfm/ft2 of window area at a pressure differential of 75 pascalsB.All new fenestration that separates conditioned space from unconditionedspace or outdoors must have a maximum or weighted-average U-factorof 0.58 or lowerC.All fenestration products must either have their performance rated by theNational Fenestration Rating Council (NFRC), or use defaultperformance values for U-factor, Solar Heat Gain Coefficient (SHGC) andvisible trasmittance (VT) from Tables 110.6-A and 110.6-B of the Standards.Buildings with unrated products will not qualify for prescriptive compliance andmust use the performance compliance approach.2. CONTRACTOR TO VERIFY ALL ROUGH OPENINGS AND JAMB THICKNESSBEFORE FINALIZING WINDOW ORDER.3. ALL WINDOWS TO BE LOW-E, DOUBLE GLAZED WITH A MAXIMUM U-VALUE OF0.554. ALL WINDOWS TO BE ALUMINUM CLAD WINDOWS, U.N.O5. TEMPERED OR SAFETY GLASS IS REQUIRED IN THE FOLLOWINGHAZARDOUS LOCATIONS:A.GLAZING IN SHOWER AND BATHTUB ENCLOSURES SHALL BETEMPERED IF BOTTOM EDGE OF GLASS IS WITHIN 60 INCHESMEASURED VERTICALLY ABOVE ANY STANDING SURFACE AND WITHIN60 INCHES HORIZONTALLY FROM THE PERIMETER OF A TUB ORSHOWER..B.GLAZING AT SKYLIGHTS SHALL BE FULLY TEMPERED.C.GLAZING ADJACENT TO DOORS AND GLAZING IN FIXED PANELSADJACENT TO WALKING SURFACES MUST BE OF SAFETY GLAZINGMATERIALS.6. EMERGENCY ESCAPE AND RESCUE OPENING WINDOWS MEET CLEAROPENING AREA, WIDTH AND HEIGHT AS FOLLOWS PERMANUFACTURER'S SPECIFICATIONS::A.MIN. NET CLEAR OPENING WIDTH OF 20".B.MIN. NET CLEAR OPENING HEIGHT OF 24".C.MAXIMUM FINISH SILL HEIGHT OF 44" ABOVE THE FLOOR.D.MINIMUM TOTAL NET CLEAR OPENING AREA IS 5.7 SQ. FT.7. EXTERIOR WINDOWS IN A W.U.I. AREA MUST BE CONSTRUCTED OFMULTIPANE GLAZING WITH A MINIMUM OF ONE TEMPERED PANE MEETING THEREQUIREMENTS OF SECTION 2406 SAFETY GLAZING PER CRC 327.8.2.1.8. OPERABLE WINDOWS LOCATED WITHIN A DWELLING UNIT WHERE THE SILLIS LESS THAN 24" A.F.F. AND GREATER THAN 72" ABOVE GRADE SHALL HAVEOPENINGS THAT WILL NOT ALLOW A 4-INCH-DIAMETER (102 MM) SPHERE TOPASS THROUGH THE OPENING WHERE THE OPENING IS IN ITS LARGESTOPENED POSITION PER CRC 312.2.1.1.
DOOR NOTES:1. CONTRACTOR TO VERIFY ALL ROUGH OPENINGS AND JAMB THICKNESSBEFORE FINALIZING DOOR ORDER.2. TEMPERED OR SAFETY GLASS IS REQUIRED IN THE FOLLOWINGHAZARDOUS LOCATIONS: A. GLAZING IN OPERABLE DOORS AND ADJACENT FIXED LITES.4. ALL FIRE RATED DOORS TO HAVE SELF-CLOSER AND SMOKE GASKET PERNFPA 252 OR UL 10C.5. FINISHED FLOOR ELEVATION DROP OVER DOOR THRESHOLD SHALL NOTEXCEED 12".
SHEET NOTES:
EXT. DOOR
DOOR WIDTHDOOR HEIGHTA
INT. DOOR
DOOR WIDTHDOOR HEIGHTB INT. DOUBLE DOORSC DINT. POCKET DOORDOOR HEIGHTDOOR WIDTHDOOR HEIGHTDOOR WIDTH WINDOW TYPES:AN = AWNINGSL = SLIDINGCS = CASEMENTHP = HOPPERDH = DOUBLE HUNGFX = FIXEDST = STOREFRONTSKY = SKYLIGHTFR = 45-MIN. RATED LABELED UNIT* SEE 2/A10.0 WINDOW ELEVATIONS FOR FRAME DIMENSIONS.GLASS TYPE:T = TEMPEREDSB = SAND BLASTEDI = DOUBLE GLAZEDS = SINGLE GLAZEDTN = TINTED M = METAL PANEL FIRST FLOOR101COMMON ENTRY3'-0"8'-3"G103GARAGE3'-0"8'-3"A104COMMON ENTRY3'-0"8'-3"G105LAUNDRY2'-6"6'-8"B106POWDER ROOM2'-4"6'-8"B107CLOSET2'-6"6'-8"B108PANTRY2'-6"6'-8"D109PRAYER ROOM6'-2"8'-3"E110PRAYER ROOM6'-2"8'-3"E111DINING RM / PLAY RM5'-10"8'-3"D112DINING RM / LIVING RM11'-6"8'-3"E113DINING RM / LIVING RM18'-7"8'-3"J114PLAY RM / LIVING RM12'-0"8'-3"I115LIVING RM18'-0"8'-3"HADU116BEDROOM 32'-6"6'-8"B117BEDROOM 35'-10"6'-8"E118BEDROOM 32'-6"6'-8"D119BATH 32'-4"6'-8"B120BEDROOM 22'-6"6'-8"D121BEDROOM 25'-10"6'-8"E122BEDROOM 22'-6"6'-8"B123CLOSET4'-0"6'-8"C124BEDROOM 13'-0"6'-8"B125BEDROOM 12'-6"6'-8"D126BATH 22'-6"6'-8"B127BEDROOM 112'-0"8'-3"H128HALL12'-0"8'-3"H129ADU ENTRY3'-0"8'-3"G130ADU ENTRY3'-4"8'-3"G131ADU LAUNDRY5'-0"6'-8"F132ADU POWDER2'-4"6'-8"D133ADU CLOSET2'-0"6'-8"B134ADU BEDROOM 15'-0"6'-8"E135ADU BEDROOM 12'-6"6'-8"B136ADU BEDROOM 12'-4"6'-8"D137ADU BATH 12'-4"6'-8"B138ADU BEDROOM 22'-4"6'-8"D139ADU LINEN CLOSET3'-11"6'-8"E140ADU BEDROOM 22'-6"6'-8"B141ADU BEDROOM 25'-5"6'-8"E142ADU GREAT ROOM12'-0"8'-3"H143GARAGE3'-0"6'-8"ASECOND FLOOR201PRIMARY BEDROOM3'-0"6'-8"B202WALK-IN-CLOSET3'-0"6'-8"D203BATH 12'-6"6'-8"D204BATH 12'-6"6'-8"D205PRIMARY BEDROOM3'-0"6'-8"D206PRIMARY BEDROOM18'-0"7'-9"I INT. BIPASS DOORSEDOOR HEIGHTDOOR WIDTH
INT. BIFOLD DOORSFDOOR HEIGHTDOOR WIDTHEXT. DOORG EXT. 2 - SLIDING PATIO DOORSH EXT. 3 - SLIDING PATIO DOORSI EXT. 3 - POCKET PATIO DOORSJ
DOOR WIDTHDOOR HEIGHT
DOOR HEIGHTDOOR WIDTH
DOOR HEIGHTDOOR WIDTH
DOOR HEIGHTDOOR WIDTH
FIRST FLR.F.F.E.A B
3'-0"3'-0"C D E
8'-3"9'-0"2'-10 1/8"
4'-0 1/2"5'-3"5'-3"
8'-3"8'-3"
12'-0"EQEQ2'-1"4'-0"2'-0"6'-0"1'-5"WINDOW WIDTH
G
8'-3"9'-0"4'-5 5/8"EQEQ12'-0"FIRST FLR.F.F.E.
WINDOW SCHEDULENO.HEIGHTWIDTHWINDOW OPENINGREMARKSWNDWAREATYPETYPEGLASSFIRST FLOOR01COMMON ENTRY4'-3"8'-3"A02COMMON ENTRYB03BEDROOM 3C04BATH 3D05BEDROOM 2C06BATH 2D07BEDROOM 1C08ABEDROOM 1E08BBEDROOM 1E09BEDROOM 1F10BEDROOM 1G11BEDROOM 1F12HALLF13PRAYER ROOM2'-0"8'-3"A14PRAYER ROOM2'-0"8'-3"A15KITCHEN4'-6"3'-0"H16POWDER3'-10"3'-0"H17LAUNDRY3'-10"3'-0"HADU18AHALLI18BHALLJ19AHALLL19BHALLK20AHALLL20BHALLK21AGREAT ROOMM21BGREAT ROOMN22AGREAT ROOMO22BGREAT ROOMP23ABEDROOM 2/BATH1O23BBEDROOM 2/BATH1P24ABEDROOM 1/LAUNDRYO24BBEDROOM 1/LAUNDRYP25AENTRYQ25BENTRYRSECOND FLOOR26AOFFICES26BOFFICET27AOFFICEU27BOFFICEV28APRIMARY BEDROOMW28BPRIMARY BEDROOMX29PRIMARY BEDROOMY30BATH 1Z F
5'-3"3'-0"WINDOW WIDTH
H I 8'-3"9'-0"3'-6"9'-8"
6'-0"
J 6'-0"3'-6"8'-3"9'-0"K
L
SECOND FLR.F.F.E.
3'-6"8'-3"9'-0"
EQEQ12'-0"
N
M
3'-0"5'-9"6'-6"4'-7 1/4"6'-0"
2'-0"4'-0"P
O
R
QT
S
9'-0"4'-7 1/2"4'-1 5/8"8'-3"
7'-9"8'-6"3'-2 3/4"
3'-9 1/4"
1'-8"
V
U6"8'-3"9'-0"2'-7 1/2"4'-7"5'-10"
4'-10"X
W7'-9"8'-6"2'-7 1/2"6'-0"
3'-9 5/8"
2'-1 1/2"18'-0"EQEQEQ8'-6"
3'-6"6'-9 1/2"
8'-0"
Y Z
1WINDOW ELEVATIONS AND SCHEDULE1/4"=1'-0'A10.0WINDOW / DOORSCHEDULES
11.30.23 531 VISTA RIDGE DRIVEMILPITAS, CA 95035
PROJECT531 VISTARIDGE
MILAN BRAHMBHATTPlanning PermitPlan Check Response 4CURRENT RELEASE DATECURRENT RELEASE SETPREVIOUS RELEASE
SHEET TITLE
SCALEJOB NUMBERDRAWN BY20-01
ADDRESSOWNEROctober 25, 2022
TitleDatePlanning Permit Set01.28.2022Planning Permit Plan Check R105.27.2022Planning Permit Plan Check R208.12.2022Planning Permit Plan Check R309.14.2022Planning Permit Plan Check R410.25.2022 4 155
Item # C8.
VISTA RIDGE DRIVE
529 VISTA RIDGE RD.
COMMONENTRY345.08UP
156
Item # C8.
157
Item # C8.
VISTA RIDGE DRIVE
529 VISTA RIDGE RD.
COMMONENTRY345.08UP
158
Item # C8.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Authorize the City Manager to execute the Non-Exclusive License Agreement between the City of Milpitas and Crown Castle Fiber LLC, a New York Limited Liability Company, for the installation of Small Cell Facilities on Municipal Facilities (Staff Contact: Roberto Alonzo, Principal Civil Engineer, 408-586-3316) Category: Consent Calendar-Community Development
Meeting Date: 2/21/2023
Recommendation: Authorize the City Manager to execute the Non-Exclusive License Agreement between the City of Milpitas and Crown Castle Fiber LLC, a New York Limited Liability Company, for the installation of Small Cell Facilities on Municipal Facilities and find a CEQA exemption.
BACKGROUND:
Voice and data information has been transmitted using different wavelengths of electromagnetic radiation for a very long time, and over the last four decades, the ability to transfer data over the air has evolved. The newest wireless connectivity is referred to as 5G, the fifth generation of cellular wireless services. This technology can transmit and receive wireless data a capacity of 20 gigabits per second with nearly zero delay in sending and receiving information between devices. Demand for wireless broadband is expected to continue to grow exponentially over the next several years with tremendous increases in the amount of available connected devices. Traditionally, wireless antennas and equipment were primarily installed on large towers on private land and on the rooftops of buildings. In recent years, companies seek to install smaller wireless facilities in the public right of way on existing City owned utility poles, streetlights, and other infrastructure which are suited for 5G antenna placement due to their sheer numbers and locations.
Crown Castle Fiber LLC, a host provider of wireless infrastructure, has stated an interest in applying for Encroachment Permits for installation of 237 small cellular 5G node antennas upon city owned infrastructure in multiple locations in Milpitas. Their project is anticipated to begin in 2023 and carry through late 2024, however, their final network planning is not complete, so starting locations have not been determined. Crown Castle has proposed a Non-Exclusive License Agreement for the installation of their infrastructure within the City of Milpitas.
ANALYSIS:
The proposed Non-Exclusive License Agreement (Attachment) between the City and Crown Castle Fiber LLC is recommended to allow for the installation, maintenance, perpetual use of Crown Castle owned 5G antenna nodes located on City infrastructure within the public right of way. The installation of such equipment will be in conformance with city specifications and design standards for such equipment installed on city infrastructure.
As allowed by State law, the term of the agreement is for ten-years with up to three successive five-year renewals. The agreement also establishes an annual rental payment for use of City property. The initial rent payment will be $270 per facility/per calendar year as allowed under Federal Communications Commission (FCC) order. On January 14, 2019, FCC adopted a Declaratory Ruling (FCC 18-133) that relates to a per pole fee of $270.00 dollars, which escalates at 3% annually, that the City would receive from the applicant on a yearly basis for each location covered by a Site Supplement.
Crown Castle Fiber would also pay City Engineering plan review and permitting fees associated with issuance of City Encroachment Permits for the antenna in stallations. City staff and the City Attorney’s Office have reviewed the proposed agreement, and staff recommends the City Council authorize the City Manager to execute the agreement. 159
Item # C9.
POLICY ALTERNATIVE(S):
Alternative 1: Do not approve the Non-Exclusive License Agreement with Crown Castle Fiber, LLC.
Pros: The proposed Licensed Agreement includes requirements for City approval of Encroachment Permits for Crown Castle and establishes payment of the maximum annual rental fee as allowed by law for use of City infrastructure.
Cons: None. Recent State law and FCC Order’s limit the City's ability to regulate the use of city-owned vertical infrastructure for small cell facilities and requires the City to issue permits for such installation within very short periods of time. The City can even face legal challenges for failing to act on small cell applications. The Non-Exclusive License Agreement specifies the requirements for installations, maintenance, and perpetual use of City infrastructure, includes the requirements for City review and permitting including rental fees for use of city infrastructure.
Reason not recommended: With the limits placed on the City's authority by federal and state laws, staff does not recommend the alternative due to the potential negative and complicating effects described above.
FISCAL IMPACT:
Approval of the Crown Castle Non-Exclusive Agreement for installation of new wireless communications facilities on City infrastructure will generate revenue for each installation. In addition, Crown Castle will pay City costs for plan review, permitting, and for construction inspection for the review of equipment installed.
California Environmental Quality Act (CEQA):
Categorically Exempt. The project is categorically exempt in accordance with Section 15303 (New Construction or Conversion of Small Structures) Class 3 - Construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. The proposed project would not have a significant effect on the environment.
RECOMMENDATION:
Authorize the City Manager to execute the Non-Exclusive License Agreement between the City of Milpitas and Crown Castle Fiber LLC, a New York Limited Liability Company, for the installation of Small Cell Facilities on Municipal Facilities and find a CEQA exemption.
Attachment(s):
Non-Exclusive License Agreement with Crown Castle Fiber LLC
160
Item # C9.
NON
-
EXCLUSIVE
LICENSE
AGREEMENT
BETWEEN
THE
CITY
OF
MILPITAS,
CALIFORNIA
AND
CROWN CASTLE FIBER LLC, A NEW YORK LIMITED
LIABILITY COMPANY
,
FOR
THE
USE
OF
MUNICIPAL FACILITIES
TO
INSTALL
SMALL
CELL
ANTENNAS
AND
ASSOCIATED
EQUIPMENT
This Agreement is made and entered into by and between the City of Milpitas, California
, a
California
municipal
corporation
(“Licensor”
or
“City”)
and
Crown Castle Fiber LLC
(“Licensee”).
Licensor and Licensee may be
referred
to herein individually
as
a
“Party”
or
collectively
as
the “Parties.”
RECITALS
This
Agreement
is
made
with
reference
to
the
following
Recitals,
each
of
which
is
deemed
to
be
a
material
term and provision of this Agreement:
A.
Licensor
is
the
owner
of
certain
Municipal Facilities
(as
defined
below).
B.
Licensee
is
Crown Castle Fiber LLC
,
and
it
is authorized to conduct
business in the
State
of
California.
C.
Licensee desires to use space on certain of Licensor’s Municipal Facilities located
in
the
public
rights
of
way
and
public
utilities
easements
within
the
jurisdictional
limits
of
the
City
of Milpitas to locate, place, attach, install, operate, control, and maintain Small Cell Equipment
(as
defined below)
on
Licensor’s
Municipal
Facilities.
D.
Licensee
will
agree
to comply
with
Licensor’s
requirements
as
provided
herein.
E.
Licensee is willing to compensate Licensor in exchange for a right to use and
physically
occupy
portions of the
Municipal Facilities as provided herein.
AGREEMENT
1. Definitions
and
Exhibits
.
1.1. Definitions
.
For
the
purposes
of
this
Agreement
and
all
Exhibits
attached
hereto,
the
following
terms, phrases,
words and derivations
shall have
the
meaning
given herein.
(a)
Code
means Licensor’s
Municipal
Code.
(b)
Hazardous
Substance
means
any
substance,
chemical
or
waste
that
is
identified
as
hazardous
or
toxic
in
any
applicable
federal,
state
or
local
law
or
regulation,
including
but
not limited to petroleum products and asbestos.
(c)
Infrastructure
means any and all
forms of existing power supply, conduit,
or
other
form
of
infrastructure
fixtures
or
equipment
for
the
delivery
of
power
or
communication
80701584_2
161
Item # C9.
2 services
to
a
Municipal
Facility
or
otherwise
located
in
the
public
right
of
way
or
other
location
controlled
or owned by
Licensor.
(d)
Interference
means
physical
interference
and radio frequency
interference.
(e)
Laws
means
any
and
all
applicable
federal,
state
or
local
statutes,
constitutions, ordinances, resolutions,
regulations, judicial decisions, rules, permits, approvals or
other applicable requirements of the Licensor or other governmental entity or agency (including
the Federal Communications Commission (“FCC”) or any successor agency) having joint or
several jur
isdiction over the parties to this Agreement as such laws may be amended from time to
time.
(f)
Make
-
Ready Work
means the work required on or in a Municipal Facility
to
create space for the Small Cell Equipment, and/or replacing and/or reinforcing the existin g
Municipal
Facility
to
accommodate
Small
Cell
Equipment
including,
but
not
limited
to,
rearrangement
or
transfer
of
existing
Small
Cell
Equipment
and
the
facilities
of
other
entities,
and
Municipal
Facility
relocation and replacement if
applicable.
(g)
Municipal
Facilities
means
City
-
owned
structures
and
Infrastructure
located
within
the
PROW
and
public
utility
easements
that
are
designated
or
approved
by
Licensor
as being suitable for placement of Small Cell Equipment including but not limited to those
Licensor
-
owned
streetlights
defined
in
Section
X
-
1 -
3.04 of
the
Code,
traffic
light
poles,
and
other
similar
structures. The
term
includes Replacement Poles
as defined in
Section 6 below.
(h)
Permit
means a permit issued under the Code,
which includes zoning and
land use planning permits such as conditional use permits, and those permits that monitor and
control improvement, construction or excavation activities, or other work or activity, occurring
upon or
otherwise
affecting
the City
PR
OW or public
utility
easements.
(i)
Physical interference
means where equipment, vegetation or a structure
causes reduced use of another’s prior mounted equipment, or an obstruction in a necessary line -
of
-
sign
path.
(j)
PROW
(or public
right
-
of
-
way) shall mean the right
-
of
-
way of any street,
as defined in the California Vehicle Code used by the general public, owned and/or controlled by
the
City
and part of
the City
system of streets located within the
territorial limits of the
City.
(k)
Ra
dio frequency interference
means the radiation or conduction of radio
frequency energy (or electronic noise) produced by electrical and electronic devices at levels that
interfere
with
the operation of
adjacent equipment.
(l)
Site Supplement
means each separa
te site license authorization granted by
Licensor, pursuant to
Section 2
below, and substantially in the form shown on Exhibit A, which
shall
be
subject to the terms and
conditions of this
Agreement.
(m)
S
mall
Cell
Equipment
means
compact
communications
antennas,
162
Item # C9.
3 transmitters, wires, fiber optic cables and other wireless communications equipment (in addition
to control boxes, cables and conduit power sources) utilizing small cell technology in compliance
with
applicable
FCC
requirements
tha
t
is
used
to
provide
wireless
communications,
and
is
specifically identified and described in Exhibit 1 attached to each approved Site Supplement (as
defined
below).
(n)
Term
means the period that this Agreement is in effect as described in
Section
3.1 of this Agreement.
1.2. Exhibits
.
The
following
numbered
documents,
which
are
occasionally
referred
to
in
this
Agreement, are
formally
incorporated
and
made
part of
this Agreement
by this
reference:
(a)
Exhibit
A
:
Site
Supplement.
(b)
Exhibit
B
:
Minimum
Limits
of Insurance.
In the event of any conflict or ambiguity between this Agreement together with the above -
referenced exhibits, and any approved Site Supplement, the approved Site Supplement (but only
with
respect to
the subject matter
addressed there
in) shall
govern and prevail.
2. License
Grant
and
Terms
.
2.1. Scope
.
Licensor
, acting
as the owner of Municipal
Facilities
in
the
PROW
and
public
utility
easements,
does
hereby
grant
to
Licensee
a
nonexclusiv
e
license
to
use
the
Municipal
Facilities
identified
in
Exhibit
1 to
each
approved
Site
Supplement
to attach
install,
operate,
maintain,
remove,
reattach,
reinstall,
and
replace
the
Small
Cell
Equipment
identified
E
xhibit
1 to
each
such
Site
Supplement.
This
grant
is
subject
to
the
terms,
conditions
and
other
provisions
set
forth
in
this
Agreement.
Licensee
may
place
its
attachments
on
any
parts
of
Licensor’s
Municipal
Facilities
consistent
with
the
City’s
most recent version of the
Small
Cell
design guidelines
and
th
e Engineering Department’s Procedures and Guidelines
.
2.2. Use
of
Licensor
Municipal
Facilities
.
An
approved
Site
Supplement
allows
Licensee to
access, occupy and use allocated available space on each of the identified Municipal
Facilities in
Exhibit 1
to the corresponding Site Supplement to attach, install, operate, maintain,
upgrade, remove,
reattach, reinstall, relocate and replace the Small Cell Equipment, as identified
in such
Exhibit 1
.
Licensee shall have access to the Muni
cipal Facilities upon which Small Cell
Equipment
is
installed
24 hours
a
day,
7 days
a
week
, subject to the permit requirements as set forth in paragraph 5 of this agreement
and the following sentence
.
In accordance with City
’s
Municipal Code
requirement
,
construction operations, including
material
deliveries are limited to the hours of 7 a.m. to 7 p.m. 7 days a week.
Further
, no construction operations are permitted on City Holidays including New Year’s Day; Martin Luthe
r King’s Birthday; Cesar Chavez Day; Memorial Day; July 4 th
Independence Day; Labor Day; Veteran’s Day; Thanksgiving including the day after; Christmas Eve, Christmas Day.
2.3 Limitations on Use
.
Except as otherwise expressly provided herein,
the Site
Suppl
ement
does
not
authorize
Licensee
to:
(a)
Install,
occupy
or
use
any
City
-
owned
poles,
improvements
or
structures
of
any
163
Item # C9.
4 kind,
whether
within
or
without
the
PROW,
other
than
the
items
identified
as
Municipal
Facilities
shown
in
Exhibit
1 attached
to
an
approved
Site
Supplement;
(b)
Enter
upon
the
PROW
or
public
utility
easements
and
attach,
install,
operate,
maintain, upgrade, remove, reattach, reinstall, relocate, and/or replace any item of Small Cell
Equipment
in
or
on
new
or
existing
poles
or
other
structures
located
within
the
PROW
or
public
utility
easements
and
not
owned
by
Licensor;
and
(c)
Install,
operate
and
maintain
ground
based,
pad
mounted
equipment
cabinets
and/or power pedestals needed for the operation of Small Cell Equipment attached to any of the
Municipal
Facilities,
unless
approved
by
Licensor
because
it
would
not
be
technically
feasible
for
Licensee
to
omit
ground
based
equipment
or
power
pedestal.
2.4 Alterations/Unauthorized Equipment
.
Licensee represents that it
will not install
unauthorized equipment. If Licensee proposes to install equipment which is different in any
material
way
from
the
then
-
existing
and
approved
Small
Cell
Equipment,
then
Licensee
shall
first
apply
for
and
obtain
permit
approval
for
the
use
and
installation
of
the
unauthorized
equipment
from
the
Licensor (
Engineering Director/City Engineer
)
via a new or amended Site Supplement. In
addition
to
any
other
submittal
requirements,
and if
requested
by
Licensor, Licensee
shall
provide
“load” (structural) calculations for all Municipal Facilities upon which it intends to attach Small
Cell
Equipment
or
modify
approved
Small
Cell
Equipment
in
the
PROW
or
public
utility
easements.
Notwithstanding the foregoi
ng, Licensee may modify its Small Cell Equipment with
like
-
kind Small Cell Equipment without prior written approval of the Licensor including, without
limitation, substitution of internal components that does not result in any change to the external
appear
ance,
dimensions,
pole attachment type or mechanism,
or
weight
of
the
attachment
or
that
involves
replacement
with
an
attachment that is substantially the same, or smaller in weight and dimensions as the approved
attachment.
Licensee’s
failure
to
comply
with
these
limitations
will
constitute
a
material
breach
of
the applicable Site Supplement. For unauthorized equipment that Licensee cannot demonstrate,
within 30 days after receiving notice, is authorized, Licensor may impose liquidated damages in
an amount not to exceed $1,000, and in addition, Licensee shall from the date of such written
notice
be
obligated
to
pay
for
such
unauthorized
equipment
an
amount
which
is
three
(3)
times
the
applicable Per Pole Fee in Section 4 until the breach is cured
by
Licensee by removing the
unauthorized equipment or applying for and obtaining a Site Supplement (or a modification to an
existing
Site
Supplement
if applicable) for such unauthorized
equipment.
3. Term
of
Agreement;
Cancellation;
Termination;
Removal
or
Abandonment
at
Expiration
.
3.1 .
Agreement Term
.
This Agreement shall be in effect for a period of ten (10) years
commencing
on
the
first
day
of
the
month
following
mutual
execution
of
this
Agreement
(“Commencement Date”), and
expiring on the day before the tenth (10
th
) anniversary of the
Commencement Date unless sooner cancelled or terminated as provided herein (the “Initial
Term”).
Provided
that
Licensee
is
not
in
material
breach
of
the
Agreement
or
any
Site
Supplement
beyond
applicable notice and cure periods, the Initial Term will be extended for up to three (3),
successive, five (5) year periods (each, a “Renewal Term”) with the first five year extension
commencing immediately upon the expiration of the Initial Term, and ea ch additional five year
extension commencing immediately upon the expiration of the preceding Renewal Term unless
164
Item # C9.
5 written notice of non
-
extension is provided by either Party to the other Party at least ninety (90)
days
prior
to
the
commencement
of
the
succeeding
Renewal
Term,
as
applicable.
The
Initial
Term
and
all
Renewal
Terms
shall
be
collectively
referred
to
herein
as
the
“Term.”
All
of
the
provisions
of this Agreement shall be in effect during the Term and any extension of the Term. Any holding
over after the expiration of the Term shall constitute a default by Licensee, notwithstanding that
Licensor
may
elect to accept
one or
more
payments of
fees
from
Licensee.
3.2 Licensee Cancellation
.
Licensee may cancel any Site Supplement at any t
ime by
providing the Licensor with thirty (30) days written notice of cancellation. Any prepaid fees shall
be retained by Licensor.
This Agreement and all Site Supplements may only be cancelled or
terminated
as provided in
this Agreement or
any
Site
Supplement.
3.3. Abandonment
.
If
Licensee
abandons
the
use
of
any
Municipal
Facility
location
for
a
period
of
six
(6)
or
more
consecutive
months
after
the
initial
installation
of
Licensee’s
Small
Cell
Equipment thereon, the Small Cell
Equipment for such Municipal Facilities shall be removed by
Licensee at the expense of Licensee within ninety (90) days of receipt of written notice from
Licensor
, unless during that ninety (90) day period Licensee demonstrates to the reasonable
satisfacti
on of Licensor that the Small Cell Equipment has not been abandoned . In the event
Licensee is unable or refuses to remove such Small Cell Equipment when
requested by Licensor
or demonstrate to Licensor’s
reasonable
satisfaction that it has not been abandon
ed
, Licensor may
authorize removal and Licensee shall be responsible for payment of
all
actual
costs
incurred
by
Licensor
for
such removal
within thirty (30) days of written demand
.
3.4 Performance
Bond
.
In
order
to
secure
the
performance
of
its
obligations
under
this
Agreement,
Licensee
will provide
the
following
security
instrument
to the Licensor:
(a)
Prior
to
the
commencement
of
any
work
under
this
Agreement
or
any
applicable
Site
Supplement,
Licensee
must
provide
a
performance
bond
running
to
the
Licensor
in
the
sum of $
50 ,000 for the first twenty
-
five Site Supplements, and an additional $
50 ,000 to
cover
up to an additional twenty
-
five Site Supplements, and so on.
The maximum surety amount shall
be capped at $500,000 regardless of th
e number of Site Supplements.
The performance bond
is
conditioned
upon
the
faithful
performance
by
Licensee
of
all
the
terms
and
conditions
of
this
Agreement and upon the further condition that, if Licensee fails to comply with any
terms or
conditions
governing this Agreement beyond applicable notice and cure periods,
there shall be
recoverable jointly and severally from the principal and surety of the bond
any damage or loss
suffered by the Licensor as a result, including, without l imitation, the
full
amount
of
any
compensation
,
indemnification
, or
costs
of
removal
or
abandonment of
Licensee’s property, plus
costs and reasonable attorneys’ fees up to the full amount of the
performance bond.
Licensee shall
keep the
performance bond in
place during the term of
this Agreement
and for twelve (12) months
following termination or expiration of the Agreement
. The bond forms shall be in a form approved
by the City Attorney. Upon
completion of Licensee’s removal obligations
hereunder, Licensee
may terminate the
performance bond and Licensor shall cooperate with Licensee in connection with such
termination.
(b)
Assessment of the Bond
. The performance bond may be assessed by the
Licensor
for
any
failure
by
Licensee
to
pay
Licensor
an
amount
owed
under
this
Agreement
beyond
applicable notice
and cure
periods, including,
but not limited to:
165
Item # C9.
6 (i)
Reimbursement of costs borne by the Licensor to correct violations of
the
Agreement not corrected by Licensee, after Licensor provides notice and a
reasonable
opportunity
to
cure
such
violations.
This
shall
include,
without
limitation,
removal of
Equipment.
(ii)
Providing
monetary
remedies
or
satisfying
damages
assessed
against
Licensee
due
to a material breach of this Agreement.
(c
)
Restoration
of
the
Bond
.
Licensee
must
deposit
a
sum
of
money
or
a
replacement instrument sufficient to restore the performance bond to its original amount
within
thirty (30) days after written notice from the Licensor that any amount has been
recovered
from
the
performance
bond
and
the
reasons
therefor.
Failure
to
restore
the
bond
to
its
full
amount
within
thirty
(30)
days
will
constitute
a
material
breach
of
this
Agreement.
Licensee will be relieved of the
foregoing requirement to replenish the bond during
the
pendency
of
an
appeal
from the Licensor’s
decision
to draw
on the
performance
bond.
(d)
Costs of Collection
. If the performance bond is drawn upon, all of Licensor’s
reasonable costs of collection and enforcement of the provisions relating to the bond that
are
specified
in
this
Section
3.4,
including
reasonable
attorneys’
fees
and
costs,
will
be
paid
by
Licensee.
(
e)
Required Endorsement
.
The performance bond is subject to the approval of
the Licensor and must contain the following
endorsement:
“This
bond may not be canceled until sixty (60) days after receipt
by the City of Milpitas, by registered mail, return receipt
requested,
of
a
written
notice
of
intent
to
cancel
or
not
to
renew.”
(f)
Reservation of Licensor Rights
.
The
rights reserved by
Licensor with respect
to
the
performance
bond
are
in
addition
to
all
other
rights
and
remedies
Licensor
may
have
under
this Agreement or
any
other
Law.
(g)
Admitted
Surety
Insurer
.
The
surety
supplying
the
bond
shall
be
an
“admitted
surety insurer”, as
defined in California Code of Civil Procedure Section 995.120 and
authorized
to do business in the State of
California.
(h)
Cash Deposit
. In lieu of obtaining a performance bond, Licensee shall have the
right
to
instead
deposit
a
cash
deposit
with
Licensor
securing
Licensee’s
obligations
under
this
Agreement.
4 .
Fees and Charges
.
Licensee shall be solely responsible for the payment of all costs, fees
and
charges
in
connection
with
Licensee’s
performance
under
this
Agreement,
including
those
set
forth
as follows:
4.1 License Fee
.
Licensee acknowledges that the FCC has adopted a Declaratory
Ruling
(FCC 18
-
133) that relates to the per pole fee and went into effect on January 14, 2019.
Paragraphs
4 .1,
4 .2,
4 .3
,
4 .4
and
4 .5
govern the calculation of the
per pole fee and how it may be impacted by
the Declaratory Ruling
.
4.2 During any period in which the FCC Declaratory Ruling (FCC 18 -
133) is in effect
166
Item # C9.
7 and during any period in which the Alternate Per Pole Fee provisions in paragraph 4 .3 are not
applicable,
the
Licensee
shall
pay
the
Per
Pole
Fee
as
described
in
this
paragraph.
Licensee
shall
pay to the Licensor the base amount of two hundred seventy dollars ($270.00) per calendar year
for each
location covered by a Site Supplement. Any new Site Supplements entered into during a
given
year
shall
commence
at
the
per
pole
fee,
as
adjusted
by
Section
4 .4
to
reflect
the
then
-
current
rate
(the “Per Pole Fee”).
The Per Pole Fee for the
first calendar year of a Site Supplement for
each location shall be pro
-
rated based
on the number of days covered from the Site Supplement
Effective Date to December 31.
There shall be no
refunds of the Per Pole Fee paid due to the
termination
or
expiratio
n of
the
Agreement for any
reason.
4.3 In the event the relevant provisions of the FCC Declaratory Ruling that hold that
fair
and
reasonable
compensation
for
use
of
local government
-
owned
structures
in
the
ROW
must
be
cost
-
based cease to be effective, (for ex
ample, because they are stayed after having gone into
effect,
or
they
are
vacated
or
invalidated
and
have
not
been
replaced
by
the
FCC
with
an
alternative
provision setting a specific amount as the Per Pole Fee), the Per Pole Fee will adjust to the rate of
fifteen
hundred
dollars
($1,500.00)
per
calendar
year
for
each
location
covered
by
a
Site
Supplement, as adjusted by Section
3 .4 to reflect the then
-
current rate (“Alternate Per Pole Fee”).
Additionally,
Licensee
shall
automatically
be
required
to
pay
the
Alternate
Per
Pole
Fee
in
full
for
the remainder of the Term. Any new Site Supplements entered into during a given year shall
commence
at
the
Alternate
Per
Pole
Fee,
as
adjusted
by
Section
4.4 to
reflect
the
then
-
current
rate.
Alternate
Per
Pole
Fee
for
the
first
calendar
year
of
a
Site
Supplement
for
each
individual
location
shall be pro
-
rated based on the number of days covered from the Site Supplement Effective Date
to
December
31. There
shall
be
no
refunds
of
the
Alternate
P
er
Pole
Fee
paid
due
to
termination
of
the Agreement for
Licensee’s default
. The Licensor agrees that irrespective of whether
the
relevant
provisions
of
the
FCC
Declaratory
Ruling
cease
to
be
effective,
no
Alternate
Per
Pole
Fee
shall
be
due
for
any
periods
during
which the FCC
Declaratory
Ruling’s
requirement
that fair
and
reasonable compensation for use of local government
-
owned structures in the ROW must be
cost
-
based
is in effect.
4.4 Per Pole Fee and Alternate Per Pole Fee Escalator. Effecti ve on January 1, and
continuing annually thereafter during the Term, the Per Pole Fee or Alternate Per Pole Fee, as
applicable,
shall increase
three
percent (3%).
4.5 The amount to be paid with respect to each year of the Term (“Aggregate Annual
License Fee”)
will be calculated based on an amount equal to the sum of the number of (a)
Municipal
Facilities
upon
which
Small
Cell
Equipment
was
installed,
and
(b)
Municipal
Facilities
which were not initially installed but contained Small Cell Equipment, during the preceding 12
months
multiplied
by
the
then
-
current
Per
Pole
Fee
or
Alternate
Per
Pole Fee;
provided,
however,
and notwithstanding the foregoing to the contrary, the Aggregate Annual License Fee shall be
prorated with respect to each Municipal Fa
cility for any months during which the applicable Site
Supplement was not in force. The first Aggregate Annual License Fee after the Commencement
Date is due and payable in arrears and not later than 45 days after receipt of an invoice from
Licensor. There
after, the Aggregate Annual License Fee is due and payable each year in advance
(based on the number of Municipal Facilities upon which Small Cell Equipment was installed at
the end of the prior year) of January 1 of the following year. The first Aggregate
Annual License
Fee after the Commencement Date shall be prorated from the Commencement Date to December
31 of
the
same
year.
If Licensee
discovers
any
error
in
the
amount
of
compensation
due,
Licensee
shall
notify
Licensor
and
the
Parties
shall
work
together
in
good
faith
to
adjust
the
amount
due.
L
icensee shall pay Licensor within 30 days after discovery of the error or undisputed
determination
167
Item # C9.
8 of the
correct amount. If Licensee does not make such payment within 30 days, a ten percent (10%) late
fee shall be added. Additionally, all unpaid fees shall accrue non -
compounding interest on the
amount due at the rate of ten percent (10%) per annum until paid in full.
Upon agreement of the
Parties, Licensee may pay the Aggregate Annual License Fee by ele ctronic funds transfer and in
such
event,
Licensor
agrees
to
provide
to
Licensee
bank
routing
information
for
such
purpose
upon
request of Licensee. City shall provide Licensee a completed current Internal Revenue Service
Form
W
-
9 and state and local withh
olding
forms
if required.
4.6 One
-
Time Fees
.
The Licensor activities described in Section
4 .6 are
“One
-
Time
Fees”
that
reimburses
the
Licensor
for
its
costs
associated
with
reviewing
and
approving
applications to
attach
Small Cell
Equipment on
identified Municipal Facilities located in the PROW, this
Agreement and Site Supplements to this Agreement for additional locations. The Licensor shall
track
its
time
spent
reviewing
the
Licensee
submittals
for
Licenses,
Site
Supplements
and
associated permit activities described below, and charge its hourly rate for any time spent against
a
City
Private Jobs Account
(PJ Account)
opened by
Licensee
and funded at an initial deposit
amount of
$
5,000
_
to cover the cost of City plan
reviews and inspections
.
The fee amounts shall be
assessed and
administered consistent with standard Licensor practice and fee schedule(s) as currently adopted
and
subsequently
amended or replaced,
in
a
manner consistent with
applicable
law.
4 .6.1
Permit
Fees
.
Licensee shall be responsible for paying all
actual and
reasonable
Permit Fees using the most current City fee schedule
associated
with City review,
processing, and inspection as part of all permit applications filed for the
installation, modificatio
n,
maintenance, and removal of Small Cell
Equipment on identified
Municipal
Facilities located in
the
right
-
of
-
way
.
4 .6.2
Agreement and Site Supplement
Processing
Fees
.
Within thirty (30) days
of full execution of this Agreement,
Licensee shall pay a one
-
time fee of $5,000 (five thousand
dollars) in partial reimbursement of the costs associated with Licensor review and processing of this Agreement. Further,
Licensee
shall
be
responsible
for
paying
all
costs
associated with
Licensor
review and processing of
any Site Supplements thereto (or
any amendment thereto) and/or the
other administrative review
related to the administration of the Agreement. Thes
e costs may be
separately billed by Licensor or
reimbursed from the Private Jobs Account opened by
Licensee
.
4. 7
Taxes
.
Licensee
shall
pay all
applicable city,
county and
state taxes
levied,
assessed,
or
imposed
by
reason
of
this
Agreement
or
those
related
to
any
of
Licensee’s
Small
Cell
Equipment
and/or
provided services.
4. 8
Electric
meter
.
Except
to
the
extent
Licensor
authorizes
connection
to
its
Infrastructure
in
accordance
with
the
rules,
regulations,
and
policies
of
PG&E,
which
authorization
the Licensor shall not unreasonably withhold, Licensee shall be solely responsible for obtaining
and maintaining the
provision of electricity to Licensee’s Small Cell Equipment, including, but
not
limited to, making payments to electric utilities and installation of separate electric meters, if
necessary.
Licensee shall comply with all Laws and rules and regulations of t he electric utility
relating
to
installation
and
connection
of
Licensee’s
Small
Cell
Equipment
to
electricity.
Additionally,
Licensee shall have the right, at Licensee’s sole cost, to replace existing lighting on
a
Municipal
Facility
utilized by
Licensee
either with
LED
or
other form
of energy
saving
lighting
design reasonably approved by Licensor, and Licensor will own, operate, maintain and repair the
168
Item # C9.
9 replacement lighting. If granted a choice between a pole -
mounted smart meter and a pedestal
-
mo
unted
meter,
Licensee
must
choose
a
pole
-
mounted
smart
meter.
Pedestal
-
mounted
meters
will
only
be
allowed
if
no
alternative
is
available.
The
electricity
purveyor
in
the
City
of
Milpitas
is
PG&E.
4. 9
Payments
Made
.
All
fees
and/or
additional
payments
shall
be
payable
to
Licensor
at:
City
of
Milpitas,
Engineering
Department
, Attn.; Engineering Director/City Engineer
,
455
East
Calaveras
Blvd.,
Milpitas,
CA
95035;
or
to
such
other
persons or at such other places as
Licensor may
designate in writing. All payments shall be in lawful
money
of
the
United
States
of
America.
5 .
Additional Licenses and Permits Required by Code
.
All of the Small Cell Equipment
will be installed, operated and maintained by or on behalf of
Licensee in accordance with
applicable Laws. Licensee or its designee is required to apply for , pay required fees,
and obtain all
Permits required
by the Code for installation of wireless communications facilities , related
electrical work,
and for work per
formed within
the PROW and public utility easements, and the
Small Cell Equipment must be installed and the
PROW
or
public
utility
easement
used
according
to
the
plans
submitted
by
Licensee
and
approved
by
the
Licensor
in
issuing
such
Permits.
Execution
of
this
Agreement
or
any
Site
Supplement
does
not
constitute
the
issuance
of
a
Permit.
Nothing
in
this
Agreement
shall
limit
in
any
way
Licensee’s
obligation to obtain any required regulatory
approvals from any Licensor department, board or
commission or other governmental agency that
has regulatory authority
over the Licensee’s proposed
activities involving use of the Municipal
Facilities in the PROW and public utility easements and
Licensee’s obligation to obtain any
required
approvals or agreements to use Licensor
property
other
than
Municipal
Facilities
covered
by
this
Agreement.
All
work
performed
pursuant
to
the
rights
granted
by
this Agreement
is
subject
to
the
prior
review and approval
of
the
Licensor
in
accordance
with
its
customary
permitting
procedures,
including
environmental
clearance
for
each
new
installation
in
accordance
with
the
California
Environmental
Quality
Act
(CEQA),
if
applicable.
6. Basic Design and Installation Requirements for Using Municipal Facilities
.
All of
Licensee’s
construction
and
installation
work
for
its
Small
Cell
Equipment
on
the
Municipal
Facilities
shall
be
performed
at
no
cost
and
expense
to
Licensor
and
in
a
good
and
workmanlike
manner
and
promptly completed. When
Licensee and Licensor have agreed on an existing Municipal Facility
location
as
a
suitable
site
for
Licensee’s
Small
Cell
Equipment,
but
the
existing
Municipal
Facility
needs
to
be
replaced
to
accommodate
the
Small
Cell
Equipment,
then
the
Site
Supplement
shall
so
specify and Licensee shall pay all costs related to replacing the Municipal Facility, including but
not limited to installation of the replacement pole (the “Replacement Pole”), transfer of the
streetlight
fixtures,
and/or
other
items
a
ttached
to
the
existing
Municipal
Facility
to
the
Replacement Pole, and removal and salvage of the existing Municipal Facility to the Licensor.
Payment of the pole replacement costs does not provide Licensee with any ownership interest in
the Replacement P
ole.
Licensor will be deemed to own the Replacement Pole in its “AS IS”
condition
without
any
representation
or
warranty
of
any
kind,
provided
that
the
Replacement
Pole
is installed in accordance with a Site Supplement
, City Standard Details and
Specifications,
and
passes Licensor inspection. The installation
or
attachment
of
the
Small
Cell
Equipment
using
the
Replacement
Pole
shall
be
at
no
cost
and expense
to Licensor
.
7. C
ommon
Conditions
or
Requirements
Applicable
to
Site
Supplements
Issued
Under
this
Agreement
.
169
Item # C9.
10 7.1.
Small Cell Equipment Locations
.
For each installation, Licensee or its designee
shall submit an application with plans and specifications
which
shall
include the seal of a licensed
professional e
ngineer
for Licensor review and approval which
shall,
at
a
minimum,
identify
the
Municipal
Facility
Licensee
proposes
to
use
and
the
basic
design
and
location
of the Small
Cell
Equipment.
If
any
ground
-
based
equipment
is
proposed
in
connection with the
operation of Small
Cell Equipment on an individual Municipal Facility, the
request must identify the ground based
equipment and the plan must also depict such equipment.
Upon
Licensor
approval,
the
approved
plan
s
are
inserted
in
Exhibit
1 attached
to
a
Site
Supplement. Any approved Site Supplement shall
also include a list of approved Small Cell
Equipment in Exhibit 1 to each Site Supplement. If
Licensee desires to change or add new
locations, Licensee will submi
t a proposed Site Supplement
application indicating the additional
Municipal Facilities that it wishes to use. One Application is required per Municipal Facility. A
total of 10 applications can be submitted at the same time if the projects use the same typ
e of
equipment
and
are
being
placed on the same
type
of structure.
7.2 .
Pole Reservation
.
Licensee shall submit an application no later than ninety (90)
days
after
reserving
a
pole
through
the
City’s
automated
pole
reservation
system,
or
the
reservation
shall be cancelled without prejudice; provided, however, the City’s Director of Engineering /City
Engineer
shall
have
discretion to extend the
reservation upon
written
request by
Licensee.
7.3 .
Damage to Licensor
Property
.
If Licensee damages or disturbs the surface or
subsurface of any PROW, public utility easement or adjoining property, Municipal Facility, pole,
streetlight
fixture,
traffic
signal,
or
other
public
improvement,
in
the
exercise
of
the
rights
grante
d
through this Agreement, Licensee will promptly, at its own expense, and in a manner reasonably
acceptable
to
Licensor, repair the
damage
or disturbance.
7.4 .
Public Emergency
.
In the event of an emergency or to protect the public health or
safety, prior to
the Licensor accessing or performing any work on a Municipal Facility on which
Licensee
has
installed
Small
Cell
Equipment,
Licensor
may
require
Licensee
to
deactivate
such
Small
Cell Equipment if any of Licensor’s employees or agents must move closer to the Small Cell
Equipment than the FCC recommended minimum distance. In such case, Licensor will attempt to
contact Licensee at Licensee’s Network Operations Center at 800 -
264
-
6620 to request immediate
deactivation.
Further,
Licensee
shall
install
a
disconnect
device
at
each
Municipal
Facility
on
which
it
installs
Small
Cell
Equipment
pursuant
to
a
Site
Supplement
so
that
in
case
of
emergency
or
to
protect
the public health or safety where Licensee is not able to immediately deactivate the Small Cell
Equipment,
Licensor
may
disconnect
such
Small
Cell
Equipment
from
its
power
source
and
safely
shut
it
down.
In
the
event
of
an
unplanned
power
outage
or
other
unplanned
cut
-
off
of
power,
or
an
emergency,
the
power
-
down
will
be
with
such
advance
notice
as
may
be
practicable.
In
all
instances,
once
the
work
has
been
completed
and
the
worker(s)
have
departed
the
exposure
area,
the
party
who
accomplished the power
-
down shall restore power and inform Licensee as soon as possible at
Licensee’s
Network
Operations
Center
number
provided
above
that
power
has
been
restored.
7.5. Make
-
Ready
Work
.
(a)
Make
-
Ready Work and Costs.
Licensee shall bear responsibility for all
Make
-
Ready
Work.
If
a
Person
other
than
Licensee
or
Licensor
would
have
to
rearrange
or
adjust
any
of
its
facilities
in
order
to
accommodate
new
Small
Cell
Equipment,
Licensee
shall
be
responsible,
at
no expense to Licensor, to coordinate such activity.
Licensee shall be responsible
170
Item # C9.
11 for directly
paying such other Person for its c
harges for the same. If Licensee is requested by
another Person,
in
comparable
circumstances,
to
relocate
or
adjust
any
Small
Cell
Equipment
to
accommodate
that
Person’s facilities, subject to Licensor’s written approval of such relocation, Licensee shall
reasonably cooperate with such request. Licensor shall endeavor to include the requirements of
this subsection (a) or substantially equivalent language in Licensor’s agreements with other
licensees
of
a
Municipal
Facility.
(b)
Construction, ins
tallation, and operation of the Small Cell Equipment shall be
conditioned on the completion of all Make
-
Ready Work needed to establish full compliance
with
the
National
Electrical
Safety
Code
(“NESC”),
and
with
Licensor’s
regulatory
rules
and
engineering standards
and requirements
; provided, however, that Licensee shall not be responsible for any third
-
party or Licensor costs necessary to correct third party or Licensor attachments that are non
-
compliant.
(c)
Notification of Completion of Instal
lation.
Within thirty (30) business days
of
completing the installation of Small Cell Equipment on each Municipal Facility, Licensee shall
notify
Licensor of
such
completion.
7.6. Pole
Replacement
.
(a)
Subject
to
Section
7 .
6 (f),
if
a
Municipal
Facility
needs
replacement
or
repair
due to a traffic accident or deterioration, Licensee shall have the right to immediately replace the
same at Licensor’s reasonable cost, not to exceed the charges the City would normally have
incurred
from
its
third
-
party
vendor.
In
such
event,
Licensor
shall
reimburse
Licensee
within
thirty
(
30 ) days of Licensee’s receipt of an invoice.
However, in the event Licensee elects in writing to
have Licensor replace the Municipal Facility, Licensor shall perform such replacement within
thirty (
9 0) days
or as soon as practicable as determined by Licensor
thereafter, and Licensee shall
cooperate with Licensor to temporarily relocate its
Small Cell Equipment, if necessary.
Upon
completion of the replacement, Licensor shall notify
Lic
ensee
in
order
for
Licensee
to
install
its
Small
Cell
Equipment.
Licensor
shall
retain
ownership
of
the
Replacement Pole.
(b)
At
Licensee’s
option,
Licensee
may
provide
to
Licensor,
at
no cost to
Licensor,
a spare pole sufficient to serve as a
Replacement Pole, which will be stored at Licensor’s
Public
Works Yard (the “Yard”) at no cost to Licensee, and which will be available for use by Licensor
and
Licensee
to replace
the
Municipal Facility
as
provided in this Section
7 .6.
(c)
In the event Licens
ee provides a spare pole, and elects in writing to have
Licensor
perform
the
replacement,
Licensor
will
use
the
spare
pole
to
replace
the
damaged
existing
pole
within
thirty
(
6 0)
days
of
notice
of
the
need
for
the
replacement
or as soon as practicable as
determined by Licensor
,
and
shall
deliver
the
damaged
pole
and
any
damaged
Small
Cell
Equipment
to
the
Yard.
In
such
an
event,
Licensor
shall
have
ownership
of
the Replacement Pole.
(d)
Licensor
will
contact
Licensee
to
pick
up
the
damaged
Small
Cell
Equipment and Licensee can reinstall its Small Cell Equipment once the Replacement Pole is
installed
and functioning as a
Municipal Facility.
(e)
Licensee shall have the right to temporarily use a Municipal Facility for its
171
Item # C9.
12 operation during the replacement period at a location reasonably acceptable to both Licensor and
Licensee.
(f)
In the event Licensor is responsible for replacing the Municipal Facility
with
a Replacement Pole, Licensor shall only be responsible for the cost of a standard pole, and
Licensee
shall be responsible for the cost of the Replacement Pole in excess of the cost of a
standard
pole.
7.7. Removal
and
Relocation
.
(a)
Licensee
understands
and
acknowledges
that
Licensor
may
require
Licensee
to relocate one or
more of its Small Cell Equipment installations as provided in this
Section
7 .7(a).
Licensee shall at Licensor’s direction and upon
thirty days (30)
prior written notice to Licensee,
relocate such Small Cell Equipment at Licensee’s sole cost and
expense whenever Licensor
reasonably determines that the relocation is needed for any of the
following
purposes:
(i) if
required
for
the
construction,
modification,
completion,
repair,
relocation,
or
maintenance
of
a
Licensor
infrastructure
or
other
public
agency
project; or
(ii
) Licensor is abandoning or
removing
the
Municipal
Facility.
Licensor may also require Licensee to relocate one or more of its Small Ce ll
Equipment installations where
the
Small
Cell
Equipment
is interfering with or adversely affecting
proper operation of Licensor
-
owned Poles,
traffic signals, communications, or other Municipal
Facilities
. In the event of
such interference
, Licensee shall at Licensor’s direction and upon thirty (
30) days prior written notice
to Licensee, relocate the interfering Small Cell Equipment at Licensee’s sole cost and expense.
(b)
I
n
any
such
case,
Licensor
shall
use
reasonable
efforts
to
afford
Licensee a
reasonably
equivalent alternate location.
Licensee acknowledges that if Licensor is
permanently
removing the Municipal Facility due to an undergrounding project, Licensee may be
required
to
seek
an
appropriate
alternate
location
within
the
PROW
.
Nothing i
n this Agreement gives the
Licensee the authorization to install a new dedicated pole in
the PROW or public utility easement
as a result of any relocation requirement. If Licensee shall
fail to relocate any Small Cell
Equipment as requested by the Licensor
in accordance with the
foregoing provision, Licensor shall
be entitled to remove or relocate the Small Cell Equipment at
Licensee’s sole cost and expense,
without further notice to Licensee.
Licensee shall pay to the
Licensor actual
costs and expenses
incurred by the Licensor in performing any removal work and
any storage of Licensee’s property
after removal within thirty (30) days of the date of a written
demand
for
this
payment
from the
Licensor
accompanied by
supporting
documentat
ion.
(c)
In the event Licensee desires to relocate any Small Cell Equipment from
one
Municipal
Facility
to
another,
Licensee
shall
so
advise
Licensor.
Licensor
will
use
reasonable
efforts to accommodate Licensee by making another reasonably equivalent Municipal Facility
available
for
use
in
accordance
with and
subject
to the
terms and
conditions
of this
Agreement.
172
Item # C9.
13 (d)
In lieu of the relocation of Licensee’s Small Cell Equipment in the case of
an abandonment of a Municipal Facility as provided in Section 7 .7(a)(ii
), unless the Municipal
Facility
is
needed
for
a
legitimate
Licensor
purpose,
Licensor
may,
in
its
sole
discretion,
allow
Licensee
to
purchase
the
Municipal
Facility,
and
continue
to
use
the
same
pursuant
to
the
then
existing
Site
Supplement,
at
a
commercially
reasonable
price
commensurate
with
its
then
existing
value.
Licensee
and
Licensor
shall
document
any
such
transfer
of
ownership
via
a
bill
of
sale.
In
the
event
that
Licensee
acquires
a
Municipal
Facility
pursuant
to
this
Section
7 .7(c),
no
Per
Pole
Fee
shall
be
due
or
payable
with
respect
to
such
acquired
site
and
said
fee
shall
be
prorated
in
accordance
with
Section
3 above.
7.8 .
Non
-
exclusiveness
.
The
rights
and
privileges
granted to
Licensee under this
Agreement,
and
each
Site
Supplement
described
herein,
are
nonexclusive.
7.9 .
Non
-
interference
.
The following provisions shall apply to ensure and/or avoid
interference
(both
physical
interference
and
radio
frequency
in
terference)
resulting
from
Licensee’s
installation,
operation
and/or
maintenance
of
its
Small
Cell
Equipment:
(a)
RF Interference
.
Consistent with applicable Laws, Licensee shall ensure
that
the
Small
Cell
Equipment
will
not
cause
radio
frequency
interference
with
wireless
communication
facilities or devices, cable television, broadcast radio or television systems, or
satellite
broadcast
systems
existing
at
the
time
of
installation
of
the
Small
Cell
Equipment.
Further,
Licensee
shall
ensure
that
the
Small
Cell
Equipment
will
not
cause
any
radio
frequency
interference
with
Licensor
traffic
signal equipment
,
public
safety
,
or
other
communications
equipment
existing
at
the
time of
installation of
the Small Cell
Equipment.
(b)
Primary and Existing Uses
.
Licensee acknowledges and agrees that the
primary
purpose
of
the
Municipal
Facilities
is
to
serve
the
public.
Licensor
has
the
right,
but
not
the
obligation,
to
maintain
and
operate
its
Municipal
Facilities
in
such
reasonable
manner
as
will
best
enable Licensor to fulfill its own primary service requirements or facilities. Licensor is willing to
permit the installation of Licensee’s Small Cell Equipment on Municipal Facilities only where
such
use
will
not
interf
ere
with
the
existing
and
future
primary
service
requirements
and
facilities,
or the existing uses (other than primary service requirements) of Licensor and existing uses of
others authorized to use the Municipal Facility as of the date of the applicable Site Supplement.
Licensee shall not materially interfere in any manner with the primary service requirements and
existing uses of the Municipal Facilities or other Licensor property including PROW and public
utility
easements,
and
including
sani
tary
sewers,
water
mains,
storm
drains,
gas
mains,
poles,
Fiber
Optic cables,
aerial
and underground electric and telephone wires, streetlight fixtures,
traffic signal
and camera systems,
cable television, and other
telecommunications, utility, and municip
al
property without the written approval of the owner(s)
of
the
affected
property
or
properties.
Notwithstanding
the
foregoing,
Licensor
will
not
grant
after
the
date
of
this
Agreement
a
right
to
use
a
Municipal
Facility
to
any
third
party
if, at
the
time
such
third party applies to use a Municipal
Facility, Licensor knows that such third party’s use may
cause interference with the Licensee’s
existing Small Cell Equipment, Licensee’s use of the
Municipal
Facility,
or
Licensee’s
ability
to
comply
with
the
terms
and
conditions
of
this
Agreement. Licensor shall endeavor to include the
requirements of Sections
7.9 (a) and (b) or
substantially equivalent language in Licensor’s
agreements with other licensees of a Municipal
Facility.
173
Item # C9.
14 (c)
Licensor Communications
.
Licensee shall not materially interfere in any
manner
with current or future
Licensor public safety
communication.
(d)
Licensor
Interference from New Non
-
Primary Uses
. Licensor has the right,
but
not
the
obligation,
to
add
new
non
-
primary
uses
to
its
Municipal
Facilities
(that is, Licensor uses
not covered by (a) through (c))
.
Notwithstanding
the
foregoing sentence, if Licensee reasonably
determines that a new non
-
primary use of a Licensor
Municipal Facili
ty is causing interference
with Licensee’s existing Small Cell Equipment
on the
same
Licensor Municipal Facility
, then
Licensor
will
confer
with
Licensee
upon
receipt
of
notice
of
interference
from
Licensee,
and
otherwise
work
in
good
faith
with
Licensee
to
determine
the
root
cause
of
the
interference,
develop
workable
solutions
to
resolve
the
interference
in
a
mutually
acceptable
manner,
and
determine
which
party
will
cover
the
costs
of
implementing
the
solution.
(e)
Remedies
.
Without
limiting any other rights or remedies, if interference
caused by Licensee’s Small Cell Equipment or by Licensor’s new non -
primary use
occurs
and
continues for a period in excess of 24 hours following notice to the interfering party
via telephone
to Licensee’s Network Operations Center at 800
-
264
-
6620 or to Licensor at
(Office of the City of
Milpitas Engineering Director/City Engineer) at
408
-
586
-
3 301
, the interfering party shall or shall
require any other user to reduce power or cea
se
operations of the interfering equipment until the
interference is cured
unless the Licensor determines the equipment causing interference is required to remain energized for legitimate public safety reasons . The Parties acknowledge
that there will
not b
e an adequate remedy at law for noncompliance with the provisions of this
Section
6 and
therefore the Parties shall have the right to equitable remedies such as, without
limitation,
injunctive relief and specific
performance.
8. Damage
to
Licensee’s
Small
Ce
ll
Equipment
.
In
the
event
of
any
damage
to
Licensee’s
Small Cell Equipment, Licensor shall have no liability or responsibility to repair the same unless
such damage arose from the negligence or willful misconduct of Licensor, its employees, agents,
or
contractors; provided however, in such case, Licensor’s liability shall be limited to the cost to
repair
or
replace
the same.
9. Title
and
Ownership
.
9.1 Title to the Small Cell Equipment
. Title to the Small Cell Equipment, exclusive of
the
Municipal
Facility
(
original
or
replacement)
used
for
support,
shall
remain
with
Licensee
or
its
Carriers
(defined
below)
and
shall
constitute
Licensee’s
personal
property
and
equipment,
and
not
fixtures
or improvements attached to the
land.
9.2 No
Ownership
in
Licensor
Property
.
Neither
this
Agreement,
nor
any
license
issued
herein,
nor
any
Permit
separately
issued
for
installation
of
any
Small
Cell
Equipment,
regardless
of
the
payment
of
any
fees
and
charges,
shall
create
or
vest
in
Licensee
any
ownership
or
property
rights
in
any portion or elements of the Municipal Facilities, the underlying real property on which any
Licensor
-
owned
poles
or
any
Small
Cell
Equipment
is
located,
or
any
portion
of
the
PROW
or
public
utility
easements.
Additionally,
except
as
otherwise
expressly
provided
herein,
Licensee
acknowledges that this Agreement does not constitute or create a leasehold interest or right to the
benefit of any Licensor property or portion thereof. Nothing contained in this Agreeme nt shall be
construed
to
compel
Licensee
to
construct,
retain,
extend,
place,
or
maintain
any
poles
or
other
facilities
174
Item # C9.
15 for
the
benefit
of
Licensor
which
are
not
needed
for
Licensee’s
own
service
requirements.
9.3 “As Is” Condition
.
Subject to Section 9,
Licensee accepts the Municipal Facilities
identified in any Site Supplement, or any Replacement Pole, in its “AS IS” condition, without
representation
or
warranty
of
any
kind
by
Licensor,
or
any
Licensor
officer,
agent,
or
employee
as
to
the
present
or
future
condition
of
or
suitability
of
the
Municipal
Facilities
for
Licensee’s
intended
use,
and
subject
to
all
applicable
laws,
rules
and
ordinances
governing
the
use
of
the
Municipal
Facilities
for
Licensee’s
intended
purpose.
Licensor
disclaims
any
and
all
warranties
express
or
implied
with
respect to the physical, structural, or environmental condition of the Municipal Facilities and the
merchantability
or
fitness
for
a
particular
purpose.
Licensee
is
solely
responsible
for
investigation
and
determination
of
the
condition
and
suitability
of
any
Municipal
Facility
for
Licensee’s
intended
use.
10. Maintenance and Repair
.
Subject to Section 7.3, Licensor shall maintain and keep the
Municipal Facility containing Small Cell Equipment
in good condition and in accordance with
Licensor’s
standard
maintenance
requirements
and design standards
,
at
its
sole
cost
and
expense.
Licensee
shall
keep
the
Small
Cell
Equipment
and
other
improvements
by
Licensee
on
the
Municipal
Facility,
if
any,
in
good
repair.
11. Hazardous
Substances
.
Licensee
agrees
that
Licensee,
its
contractors,
subcontractors
and
agents,
will
not
use,
generate,
store,
produce,
transport
or
dispose
any
Hazardous
Substance
on,
under,
about
or
within
the
area
of
a
Municipal
Facility
or
the
PROW
or
public
utility
easement
in
which
it
is
located
in
violation
of
any
applicable
federal,
state,
county,
or
local
law
or
regulation.
Except
to
the
extent
of
the
negligence
or
intentional
misconduct
of
Licensor,
Licensee
will
pay,
indemnify,
defend
and
hold
Licensor
harmless
against
and
to
the
extent
of
any
loss
or
liability
incurred
by
reason
of
any
Hazardous Substance produced, disposed of, or used by Licensee pursuant to this Agreement.
Licensee
will
ensure
that
any
on
-
site
or
off
-
site
storage,
treatment,
transportation,
disposal
or
other
handling of any Hazardous Substance will be performed by persons who are properly trained,
authorized,
licensed
and
otherwise
permitted
to
perform
those
services.
Notwithstanding
the
foregoing,
Licensee shall not be liable for Hazardous Substances that existed within the area of a Municipal
Facility or the PROW or public utility easement in which it is located before the executio n of this
Agreement, or that otherwise do not result from the activities of Licensee, its agents, contractors,
subsidiaries,
or
entities
otherwise
associate
with
Licensee.
12. Indemnity
.
To
the
fullest
extent
permitted
by
law,
Licensee
shall
indemnify,
defend,
and
hold
harmless
Licensor,
its
City
Council,
its
boards
and
commissions,
officials,
officers,
employees,
and
agents from and against any and all claims, demands, obligations, damages, actions, causes of action,
suits,
losses,
judgments,
fines,
penalties,
liabilities,
costs
and
expenses
(including
without
limitation,
reasonable attorneys’ fees, disbursements and c
ourt costs) of every kind and nature whatsoever
(collectively, “Claims”) which relate to (i) Licensor's approval of this Agreement and any Site
Supplement(s),
and
(ii)
Licensee’s,
and
its
employees’,
contractors’,
agents’
or
Carriers’,
construction,
operation, use, or related activity taken pursuant to this Agreement; provided, however, the foregoing
indemnity shall not apply to the extent such Claims are the result of the negligence or willful
misconduct
of
Licensor.
This
indemnificatio
n
shall
include,
but
not
be
limited
to,
damages
awarded
against
Licensor,
if
any,
costs
of
suit,
attorneys’
fees,
and
other
expenses
incurred
in
connection
with
such
claim,
action,
causes
of
action,
suit
or
proceeding
whether
incurred
by
Licensee,
Licensor,
and/or
the parties initiating or bringing such proceeding.
Licensee shall indemnify Licensor for all of
Licensor’s costs, reasonable attorneys’ fees, and damages which Licensor incurs in enforcing the
indemnification
provisions
set
forth
in
this
condition.
Licensee
shall
pay
to
Licensor
within
30 days
175
Item # C9.
16 after
receipt
of
an
invoice
or,
as
applicable,
to
counsel
of
Licensor’s
choosing,
any amount
owed
pursuant
to
the
indemnification
requirements
prescribed
herein.
This shall not include
any costs
Licens
or
incurs for hiring their own counsel to
participate in the defense in addition to the counsel
retained provided by Licensee.
13. Insurance
Requirements
.
13.1. Licensee’s
Insurance
.
Licensee
shall
procure
and
maintain
insurance
in
the
amounts
and form specified in attached
Exhibit B
.
13.2. Certificates
.
If
a
Certificate
of
Insurance
or
Self
-
Insurance
is
submitted
as
verification
of
coverage,
Licensor
will
reasonably
rely
upon
the
Certificate
as
evidence
of
coverage
but this acceptance and reliance will not waive or alter in any way the insur ance requirements or
obligations of this Agreement.
If any of the required policies expire during the life of this
Agreement, Licensee
must
forward
renewal
or
replacement
Certificates
to
Licensor
within
fifteen
(
15)
business days after
the
renewal date
containing
all the
necessary
insurance
provisions.
14. Assignment/Subletting
.
14.1. Except as expressly provided herein, this Agreement and each site license granted
pursuant
to
individual
Site
Supplements
herein
is
personal
to
Licensee
and
for
Licensee’s
use
only.
Licensee
shall
not
lease,
sublicense,
share
with,
convey
or
resell
to
others
any
such
space
or
rights
granted hereunder; provided, however, the Parties agree and acknowledge that, notwithstanding
anything
in
this
Agreement
to
the
contrary,
certain
Small
Cell
Equipment
deployed
by
Licensee
on
any
Municipal
Facility
or
in
any
PROW
or
public
utility
easement
pursuant
to
this
Agreement
may
be
owned and/or operated by Licensee’s third
-
party wireless carrier customers
(“Carriers”) and in
stalled
and
maintained
by
Licensee
pursuant
to
license
agreements
between
Licensee
and
such
Carriers.
Such
Small
Cell
Equipment
shall
be
treated
as
Licensee’s
Small
Cell
Equipment
for
all
purposes
under
this
Agreement provided that (i
) Licensee remains responsible and liable for
all performance obligations
under
the
Agreement
with
respect
to
such
Small
Cell
Equipment;
(ii)
Licensor’s
sole
point
of
contact
regarding such Small Cell Equipment shall be Licensee;
and (iii) Licensee shall h
ave the right to
remove
and
relocate
the
Small
Cell
Equipment.
This
Agreement
and
the
related
rights,
duties,
and
privileges
may
not
be
assigned
or
otherwise
transferred
in
whole
or
in
part
without
the
prior
written
consent
of
Licensor;
provided,
however,
Licensee
shall
have
the
right
to
assign
this
Agreement
upon
notice
to
Licensor
but
without
Licensor’s
consent
to
any
parent,
subsidiary,
affiliate,
or
any
person,
firm, or corporation that shall control, be under the control of, or be under common
control with
Licensee,
or
to
any
entity
into
which
Licensee
may
be
merged
or
consolidated
or
which
purchases
all
or
substantially
all
of
the
assets
of
Licensee
that
are
subject
to
this
Agreement.
If
the
Agreement
is
assigned
or
otherwise
transferred
in
accordance
with
this
Section,
this
Agreement,
including
any
amendments,
shall
be
binding
on
the
assignee
to
the
full
extent
that
it
was
binding
upon
Licensee.
14.2. Any
non
-
permitted
transfer
or
assignment
of
the
right
to
attach
Small
Cell
Equipment
to
a
Municipal
Facility
shall
be
void
and
not
merely
voidable.
Licensor
may,
in
its
sole
discretion
and
in
addition
to
all
other
lawful
remedies
available
to
Licensor
under
this
Agreement,
may collect any fees owed from Licensee all
without prejudicing any other right or remedy of
Licensor under this Agreement.
No cure or grace periods shall apply to transfers or assignment
prohibited by this Agreement or to the enforcement of any provisions of this Agreement against a
transferee
or
assignee
who
did not receive
Licensor’s
consent.
176
Item # C9.
17 15.
Default
.
It is a “Default” if (i) either Party fails to materially comply with this Agreement
or
any
Site
Supplement
and
does
not
remedy
the
failure
within
thirty
(30)
days
after
written
notice
by
the
other
Party
or,
if
the
failure
cannot
reasonably
be
remedied
in
such
time,
if
the
failing
Party
does not commence a remedy within the allotted thirty (30) days and diligently pursue the cure to
completion within ninety (90) days
after the initial written notice, or (ii) Licensee fails to comply
with this Agreement or any Site Supplement and the failure interferes with Licensor’s use of its
Municipal Facility in a manner not covered by Section 7.4, and Licensee does not remedy the
failure within
twenty (20) days
after written
notice from
Licensor or,
if
the failure cannot
reasonably
be
remedied
in
such
time,
if
Licensee
does
not
commence
a
remedy
within
the
allotted
twenty (20) days and diligently pursue the cure to
completion within thirty (30) days after the
initial
written notice.
16. Termination/Revocation
.
In the event of a Default, without limiting the non
-
defaulting
Party
in
the
exercise
of
any
right
or
remedy
which
the
non
-
defaulting
Party
may
have
by
reason
of
such
Default,
the
non
-
defaulting
Party
may
terminate
this
Agreement
if
the
Default
affects
all Site
Supplements
and
the
Agreement
as
a
whole,
or
any
Site
Supplement
subject
to
the
Default,
and/or
pursue any remedy now or hereafter
available to the non
-
defaulting Party under the Laws or
judicial
decisions of the
State
of California.
17. Surrender
.
Within
one
hundred
eighty
(180)
days
of
the
expiration
or
earlier
termination
of this Agreement or upon ninety (90) days of the
expiration or termination of an individual Site
Supplement, Licensee shall remove the affected Small Cell Equipment, at no expense to Licensor
,
shall
repair any damage to the Municipal Facilities or the PROW or public utility easement caused by
such
remova
l,
and
shall
restore
the
Municipal
Facilities
to
the
condition
in
which
they
existed
prior
to the installation of the Small Cell Equipment, reasonable wear and tear and loss by casualty or
other
causes
beyond
Licensee’s control
excepted.
18. Notices
.
Any
notice, request, demand, statement, or consent herein required or permitted
to
be
given
by
either party
to
the
other
hereunder, shall
be
in
writing
signed
by
or
on
behalf of
the
party
giving
the notice
and
addressed
to the other
at the
address
as set
forth
below:
Licensee
Crown Castle Fiber LLC
2000 Corporate Drive
Canonsburg, PA 15317
Attn: Ken Simon, General Counsel
With a copy to:
Crown Castle Fiber LLC
2000 Corporate Drive
Canonsburg, PA 15317
Attn: SCN Contracts Management
24/7
emergency contact information:
Telephone: (888) 632
-
0931
E
-
Mail: [email protected]
177
Item # C9.
18 Licensor
City
of Milpitas
455
East
Calaveras
Blvd.
Milpitas,
CA 95035
Attn: Steven G. McHarris,
City
Manager
Telephone: (
408
)
586
-
3059
E
-
Mail: [email protected]
ov
With a copy to:
City
of Milpitas
455
East
Calaveras
Blvd.
Milpitas,
CA 95035
Attn:
Steve Chan
,
Inter
im
City Engineer
Telephone: (408) 586
-
33 24
E
-
Mail:
s
chan
@milpitas.gov
City
of Milpitas
455
East
Calaveras
Blvd.
Milpitas,
CA 95035
Attn: Michael Mutalipassi,
City
Attorney
Telephone: (408) 586
-
3041
E
-
Mail: [email protected]
Each
Party
may
by
notice
in
writing
change
its
address
for
the
purpose
of
this
Agreement,
which address shall
thereafter be used in place of the former address.
Each notice, demand,
request,
or communication
which
shall
be
mailed to
any of
the
aforesaid
shall
be
deemed
sufficiently given,
served, or sent for all purposes hereunder (i) five business days after it s hall be
mailed by United
States registered or certified mail, postage prepaid and return receipt requested,
in
any
post
office
or
branch
post
office
regularly
maintained
by
the
United
States
Postal
Service, (ii)
upon
personal
delivery,
or
(iii)
one
business
day
after
deposit
with
any
recognized
commercial
air courier or
express service.
Any communication made by e
-
mail or similar method shall not
constitute
notice
pursuant to this
Agreement.
178
Item # C9.
19 19.
Miscellaneous
.
19.1. Entire
Agreement
.
This
Agreement
constitutes
the
entire
agreement
and
understanding
between
the
Parties
as
to
the
subject
matter
herein,
and
supersedes
all
negotiations,
understandings or agreements as to the same.
Any amendments to this Agreement must be in
writing
and
executed by
both P
arties.
19.2. Severability
.
If any provision of this Agreement is invalid or unenforceable with
respect to any Party, the remainder of this Agreement or the application of such provision to
persons other than those as to whom it is held invalid or unenforceable , shall not be affected and
each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
19.3. Governing Law
.
This Agreement shall be governed by the laws of the State of
California
without regard
to choice
of law
rules.
19.4. Exhibits
.
All Exhibits referred to and attached to this Agreement are incorporated
herein by
reference.
19.5. Authority to Execute
.
Any individual executing this Agreement on behalf of or as
representative
for
a
corporation
or
other
person,
partnership
or
entity,
represents
and
warrants
that
he or she is duly authorized to execute and deliver this Agreement on behalf of such Party, and
this
Agreement is binding upon
such Party in
accordance with its terms.
Licensor hereby
designates,
and authorizes, the
Engineering Director/City Engineer
to execute all Site Supplements
with
respect to placement of equipment within the PROW. The City Manager shall
and
have the
responsibility for the execution of this Agreement and any amendm
ents
thereto
entered
into
under
this
Agreement.
This
designation
and
authorization
may
be
changed
by
Licensor
upon written
notice
to
Licensee.
This Agreement may be executed in several counterparts, including by counterpart email or other electronic mean
s, each of which shall be deemed an original, and all
such counterparts together shall constitute one and the same agreement.
19.6 No Waiver.
A Party shall not be excused from complying with any of the terms
and conditions of this Agreement by any
failure of a Party upon any one or more occasions to
insist
upon or to seek compliance
with any
such terms or
condition
19.7 Force Majeure
.
With respect to any provisions of this Agreement, the violation or
non
-
compliance of any term of this
Agreement which could result in the imposition of a financial
penalty, liquidated damages, forfeiture or other sanction upon a Party, such violation or non -
compliance shall be excused where such violation or non -
compliance is the result of acts of God,
wa
r, civil disturbance, strike or other labor unrest, or other events, the occurrence of which was
not
reasonably
foreseeable
by
such Party
and is beyond
such Party’s
reasonable
control.
19.8 Limitation of Liability
.
Neither Party shall be liable to the
other, or any of their
respective
agents,
representatives,
employees
for
any
lost
revenue,
lost
profits,
loss
of
technology,
rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or
179
Item # C9.
20 interruption or loss of use
of service, even if advised of the possibility of such damages, whether
under
theory
of contract,
tort (including
negligence), strict liability
or otherwise.
19.9 Time is of the Essence
.
Time is of the essence with regard to
the performance of
all
of
Licensee’s obligations under this Agreement.
19.10 Dispute
Resolution
.
(a)
Good
Faith
Participation
.
Prior
to
the
initiation
of
any
litigation,
the
Parties
shall
in
good
faith
attempt
to
settle
any
dispute
arising
out
of
or
relating
to
this
Agreement
through
the upper management escalation and non
-
binding mediation processes set forth herein.
Good
faith
participation
in
these
processes
shall
be
a
condition
precedent
to
any
litigation.
All
negotiations
pursuant to this Article
shall be confidential and shall be treated as compromise and
settlement
negotiations for purposes of the Federal Rules of Evidence and any state’s rules of
evidence.
(b)
Upper Management Escalation and Mediation
.
Either Party may give the
other
Party
written
notice
of
any
dispute
not
resolved
in
the
normal
course
of
business.
The
dispute
shall be escalated to upper management and, thereafter, representatives of both Parties with
authority
to settle
the
dispute
shall
meet at a
mutually
acceptable
time
and
place
within
thirty
(30)
calendar
days
after
receipt
of
such
notice,
and
thereafter
as
often
as
reasonably
deemed
necessary,
to exchange relevant information and attempt to resolve the dispute.
If the matter has not been
resolved within
thirty (30) calendar days of receipt of the disputing Party’s notice, which period
may
be
extended
upon
mutual
agreement
of
the
Parties,
or
if
the
Parties
fail
to
meet
within
thirty
(30) calendar days, either Party may initiate mediation.
Such
mediation shall take place at a
mutually agreeable location.
In the event that such dispute is not resolved within ninety (90)
calendar days following
the
first day
of mediation,
or mediation
is not initiated,
either Party
may
initiate
litigation.
(c)
Enforc
ement
.
The parties regard the aforesaid obligation to escalate to
upper
management and mediate as an essential and material provision of this Agreement and one
that is
legally binding upon them.
In case of a violation of such obligation by either Party, th e
other
may
seek
specific
enforcement
of
such
obligation
in
the
courts
having
jurisdiction
hereunder.
19.11 Successors
. This Agreement shall be binding upon and shall inure to the benefit of
the
Parties hereto
and their respective
successors.
180
Item # C9.
21 IN
WITNESS
WHEREOF,
the
Parties
have
executed
this
Agreement
as
of
this
day
of
_____
,
202
3 (the
“Execution
Date”).
LICENSOR:
City
of
Milpitas,
a
California
municipal
corporation
CITY OF MILPITAS
Approved By:
Steven G. McHarris,
City Manager
LICENSEE:
Crown Castle Fiber
LLC, a
New York limited
liability company
By:
Name:
Its:
Approved As To Form:
Michael Mutalipassi,
City Attorney
Approved
:
Lauren Lai, CPA, MPA
Finance Director/Risk manager
Approved As To Content
:
S
t
eve
Chan
, PE
Interim
City Engineer
181
Item # C9.
22 EXHIBIT
A
Form of Site Supplement
Supplement
1. Supplement
.
This is a Site Supplement as referenced in that certain NON -
EXCLUSIVE
LICENSE
AGREEMENT FOR THE USE OF CITY
-
OWNED MUNICIPAL FACILITIES TO
INSTALL SMALL CELL ANTENNAS AND ASSOCIATED EQUIPMENT, between Licensor
and
Licensee
dated
___
,
20 ___
("Agreement").
This
Site
Supplement
is
approved
by
Licensor
this
day
of
_______
,
20 _
(the
date
executed
by
all
parties,
referred
herein
as
“Site
Supplement
Effective
Date”).
Licensee
has
submitted
an
application
for
a
Site
Supplement
pursuant
to
the
Agreement,
and
Licensor
has
reviewed
the
application
and
grants
approval
subject
to the terms of this Site Supplement. All of the terms and conditions of the Agreement are
incorporated hereby by reference and made a part hereof without the necessity of repeating or
attaching the Agreement. In the event of a contradiction, modification or inconsistency
between
the terms of the Agreement and this Site Supplement, the terms of this Site Supplement shall
govern (but only with respect to the subject matter addressed therein).
Capitalized terms used
in
this Site Supplement shall have the same
meaning described for them in the Agreement unless
otherwise indicated herein. IF THE SITE SUPPLEMENT IS NOT COUNTER -
SIGNED BY
LICENSEE AND RETURNED TO LICENSOR WITHIN 30 DAYS AFTER LICENSOR HAS
GRANTED APPROVAL, THE SITE SUPPLEMENT SHALL BE VOID AND OF N
O LEGAL
EFFECT. IF LICENSEE STILL WANTS TO USE THE MUNICIPAL FACILITY, LICENSEE
WILL
BE
REQUIRED
TO
SUBMIT
A NEW
APPLICATION
AND
ASSOCIATED
FEES.
2. Project Description and Locations
.
Licensee shall have the right to attach Small Cell
Equipment to the design
ated space on the specific Municipal Facility as further described in
Exhibit
1 attached hereto (the
“Licensed Area”).
3. Small Cell Equipment
.
The Small Cell Equipment to be installed at the Licensed Area is
listed
and depicted on plans included in
Exhibit
1 attached hereto.
4. Term
.
The term of this Site Supplement shall be coterminous with the Agreement Term
as
set forth in Section 3.1
of the
Agreement.
5. Fees
.
The initial annual Per Pole Fee or Alternate Per Pole Fee for the term of this
Supplement
s
hall
be
,
as
determined
in
accordance
with
the
Agreement,
and
as
adjusted by
Section
4 of the
Agreement.
6. Site Supplement Commencement Date
. If Licensee does not commence installation
of its Small Cell Equipment within one (1) year of the Site Supplement Effective Date, the Site
Supplement
shall
be
void
unless
Licensor,
in
its
sole
discretion,
extends
the
time
for
commencing
installation
of
Small Cell
Equipment in writing.
7. Miscellaneous
.
.
[Signature
page follows]
182
Item # C9.
23 APPROVED
as of the
date shown below.
LICENSOR:
City
of
Milpitas,
a
California
municipal
corporation
CITY OF MILPITAS
Approved By:
Steve Chan
, PE
Inte
rim
City Engineer
LICENSEE:
Crown Castle Fiber LLC, a
New York limited
liability company
By:
Name:
Its:
183
Item # C9.
24 Exhibit 1
Licensed
Area,
Small
Cell
Equipment
List
and
Plans
184
Item # C9.
25 EXHIBIT
B
Licensee’s
Minimum
Insurance
Requirements
1. General
.
A.
Prior to
performing work under this Agreement, Licensee shall furnish Licensor a
certificate of insurance on a standard insurance industry ACORD form.
The insurance coverage
required must be issued by an insurance Licensee licensed, authorized or permitted to trans act
business in the State of California, possessing a current A.M. Best, Inc. rating of A -
VII or better,
and
coverage
shall be
reasonably
satisfactory
to
Licensor.
B.
The insurance requirements set forth in no way limit the indemnity covenants
contained
in t
his Agreement.
C.
Licensor in no way warrants that the insurance limits contained in this Agreement
are sufficient to protect Licensee from liabilities that might arise out of the performance of this
Agreement by Licensee and its contractors, and Licensee is
free to purchase any additional
insurance as may
be
determined necessary.
D.
Failure to demand evidence of full compliance with the insurance requirements in
this Agreement or failure to identify any insurance deficiency will not relieve Licensee from, nor
will it be considered a waiver of, its obligation to maintain the required insurance at all times
during
the performance
of this Agreement.
2. Scope and
Limits
of
Insurance
.
Licensee shall
provide
coverage
with
limits
of liability
equal
to those
stated below.
A.
Commercial
General
Liability
-
Occurrence
Form
.
Licensee
must
maintain
Commercial General Liability insurance with a limit of $1,000,000 per occurrence for bodily
injury and property damage and $2,000,000 general aggregate including premises -
o
perations,
products and completed operations, independent contractor, contractual liability, personal injury
and
advertising
injury.
B.
Commercial
Automobile
Liability
.
Licensee
must
maintain
Commercial
Automobile Liability insurance in the amount of
$1,000,000 combined single limit each accident
for bodily injury and property damage covering all of Licensee owned, hired, and/or non -
owned
vehicles assigned to or used in the performance of Licensee’s work or activities under this
Agreement.
185
Item # C9.
26 C.
Workers
Compensation
and
Employers
Liability
Insurance
.
Licensee
must
maintain Workers Compensation insurance in compliance with the statutory requirements of the
state
of
operation
and
Employer’s
Liability
with
a
limit
of
$1,000,000
for
each
accident;
$1,000,000
disease
for each
employee;
$1,000,000
disease
-
policy
limit.
D.
Contractors’
Pollution
Legal
Liability.
Licensee
must
maintain
Contractors’
Pollution
Legal
Liability
insurance
with
limits
of
$1,000,000
per
occurrence
or
claim,
and
$2,000,000
policy
aggregate.
If
any
coverage
required
is
written
on
a
claims
-
made
coverage
form:
(1)
The retroactive date must be shown, and this date must be before the
execution
date of
the contract or the
beginning
of
contract
work.
(2)
Insurance must be maintained and evidence of insurance must be provided
for
at least five
years after
completion of
contract
work.
(3)
If coverage is canceled or non
-
renewed, and not replaced with another
claims
-
made policy form with a retroactive date prior t
o the contract effective, or start of work
date, the Contractor must purchase extended reporting period coverage for a minimum of five (5)
years
after
completion of
contract work.
(4)
A copy of the claims reporting requirements must be submitted to the
Licensor
for
review.
3. Additional
Policy
Provisions
Required
.
A.
Miscellaneous
Provisions
.
(1)
Licensee's required insurance coverage must be primary insurance with
respect
to
Licensor,
its
officers,
officials,
and
employees.
Any insurance
or
self
-
insurance
main
tained by Licensor, its officers, officials, and employees shall be in excess of the coverage
provided
by
Licensee
and must not contribute
to it.
(2)
Licensee's insurance must apply separately to each insured against whom
claim
is made
or suit is
brought, except with
respect to the
limits of the
insurer's liability.
(3)
Licensee
hereby
agrees
to
waive rights
of
subrogation
which
any
insurer
of
Licensee may acquire from Licensee by virtue of the payment of any loss. Licensee agrees to
obtain any endorse
ment that may be necessary to affect this waiver of subrogation. The Workers’
Compensation policy shall be endorsed with a waiver of subrogation in favor of the Licensor for
all work performed by the Licensee and its employees. The policies must
contain a
severability of
interest clause and waiver of subrogation against Licensor, its officers,
officials,
and
employees,
for
losses arising
from
work performed
by Licensee
for Licensor.
(4)
Licensee
is
required
to
maintain
Commercial
General
Liability
insurance
as
specified in this Agreement for the duration of this Agreement.
Licensee must submit an annual
Certificate
of
Insurance
evidencing
Commercial
General
Liability
insurance
during
this
period
186
Item # C9.
27 evidencing
the
insurance
requirement
and,
including
the
required
Additional
Insureds
set
forth
herein.
(5)
If
a
Certificate
of
Insurance
is
submitted
as
verification
of
coverage,
Licensor will reasonably rely upon the Certificate of Insurance as evidence of coverage but this
acceptanc
e
and
reliance
will
not
waive
or
alter
in
any
way
the
insurance
requirements
or
obligations
of this Agreement.
(6)
Upon receipt of notice from its insurer, Licensee shall use its best effort to
provide the Licensor with thirty (30) days prior written notice of cancellation of any required
coverage that is not replaced. Such notice shall be sent directly to Licensor at 455 East Calaveras
Blvd,
Milpitas, CA 95035, Attn: City
Manager.
B.
Licensor as Additional Insured
.
The above
-
referenced policies shall, e
xcluding
workers compensation and employer’s liability include the Licensor, its officers, officials, and
employees
as
an
additional
insured
as
their
interest
may
appear
under
this
Agreement
with
respect
to liability arising out of activities
performed by Licensee.
Licensor’s additional insured status
shall
(i)
be
limited
to
bodily
injury, for ongoing operations using ISO form CG 20 10
and
completed operations using ISO form CG 20 37 or its equivalent property
damage
or
personal
and
advertis
ing
injury
caused,
in
whole or in part, by Licensee, its employees, agents or independent contractors; (ii) not extend to
claims for punitive or exemplary damages arising out of the acts or omissions of Licensor, its
employees, agents or independent contra
ctors or where such coverage
is prohibited by law or to
claims arising out of the negligence of Licensor, its employees, agents or independent
contractors; and, (iii) not exceed Licensee’s indemnification obligation under this Agreement, if
any.
C.
Self
-
Insurance
.
Notwithstanding
the
foregoing,
Licensee
shall
have
the
right
to self
-
insure the coverages required herein.
In the event
Licensee elects to self
-
insure its
obligation
to include Licensor as an additional insured, the following additional provisions shall
apply:
(i)
Licensor shall promptly and no later than thirty (30) days after notice thereof provide
Licensee
with
written
notice
of
any
claim,
demand,
lawsuit,
or
the
like
for
which
it
seeks
coverage
pursuant to this Section and prov
ide Licensee with copies of any demands, notices, summonses,
or
legal papers received
in connection with
such claim, demand, lawsuit,
or
the like;
(ii)
Licensor shall not settle any such claim, demand, lawsuit, or the like without the prior
written
consent of
Licensee; and
(iii)
Licensor shall fully cooperate with Licensee in the defense of the claim, demand,
lawsuit,
or the
like.
187
Item # C9.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Granting Acceptance of Alviso Adobe Renovation. (Phase V – Exhibits), Project No. 5055, Authorizing the City Engineer or other appropriate representative designated by the City Manager to File a Notice of Completion, and Authorize the City Engineer or other appropriate representative designated by the City Manager to Issue a Notice of Final Acceptance after the one-year warranty. (Staff Contact: Michael Silveira, Capital Improvement Program Manager, 408-586- 3303)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 2/21/2023
Recommendation: Adopt a Resolution granting acceptance of Alviso Adobe Renovation (Phase V – Exhibits), Project No. 5055; authorizing the City Engineer or other appropriate representative designated by the City Manager to file a Notice of Completion, and authorizing the City Engineer or other appropriate representative designated by the City Manager to issue a Notice of Final Acceptance after the one-year warranty.
BACKGROUND:
On April 20, 2021, the City Council awarded a construction contract to Gizmo Art Production, Inc. for the Alviso Adobe Renovation Phase V - Interior Exhibits, Project No. 5055 in the amount of $792,574 (“Project”). This final phase of the Project provides for installation of interior exhibits and visual media in the Adobe’s first floor included fabrication and installation of period furnishings, exhibits, interpretive signage, and visual media to replicate the experiences of an original Spanish-Mexican Era Adobe home.
Analysis:
The Project was successfully completed on-time and within budget, and the Adobe opened to the public in October of 2022. Staff recommends the City Council adopt a Resolution (Attachment 1) granting acceptance of the Project and authorize the City Engineer or other appropriate representative designated by the City Manager to file a Notice of Completion in accordance with the provisions of Section 9204 of the Civil Code.
Staff also recommends the Council authorize the City Engineer or other appropriate representative designated by the City Manager to issue a notice of final acceptance after the one-year warranty period without further City Council action, provided that all warranty work is completed to the satisfaction of the City Engineer or other appropriate representative designated by the City Manager.
Policy Alternative:
Alternative: Do not adopt Resolution and deny Project acceptance, deny filling a notice of completion and not begin the one-year warranty.
Pros: None
Cons: A denial would result in the City being unable to commence the one-year warranty, release the retention to the Contractor and release any funds remaining back into the Project budget.
Reason not Recommended: Denial would result in the City being unable to close out the Project and release any funds remaining back into the Project budget.
Fiscal Impact:
No additional funding is requested for installation of interior exhibits and visual media as the project is now complete. Information Technology, Public Works, and Recreation and Community departments have sufficient budget for maintenance and operations of the project during fiscal Year 2022-23, but they will bring forward 188 Item # C10.
requests to adjust for the annual operations and maintenance of this project during the annual budget development.
California Environmental Quality Act:
The Project has an approved Mitigated Negative Declaration.
Recommendations:
Adopt a Resolution granting acceptance of Alviso Adobe Renovation (Phase V – Exhibits), Project No. 5055; authorizing the City Engineer or other appropriate representative designated by the City Manager to file a Notice of Completion, and authorizing the City Engineer or other appropriate representative designated by the City Manager to issue a Notice of Final Acceptance after the one-year warranty.
Attachment:
Attachment 1 Resolution
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Item # C10.
RESOLUTION NO. ______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS GRANTING
ACCEPTANCE OF THE ALVISO ADOBE RENOVATION, (PHASE V- EXHIBITS), PROJECT NO. 5055
WHEREAS, the City of Milpitas has heretofore entered into a contract with Gizmo Art Production, Inc., for the Alviso Adobe Renovation, (Phase V – Exhibits), Project No. 5055, in the amount of $792,574 (“Project”), and the City Engineer or other appropriate representative designated by the City Manager of the City of Milpitas has recommended acceptance of said improvement as completed in accordance with plans, specifications and approved change orders and correction lists, and in accordance with the final inspection of said City Engineer or other appropriate representative designated by the City Manager.
NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:
1. The City Council has considered the full record before it, which may include but is not limited to such things as the st aff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
2. The City of Milpitas does hereby accept said improvement as completed on this 21st day of February, 202 3, and does hereby authorize and direct the City Engineer or other appropriate representative designated by the City Manager of the City of Milpitas to file a Notice of Completion in accordance with the provisions of Section 9204 of the Civil Code of the State of California, and does hereby authorize and direct the City Engineer or other appropriate representative designated by the City Manager to file a C ertificate of Completion in accordance with the provisions of Section 4005 of the Government Code of the State of California, if said work was by day’s labor or force account.
3. The City Council authorizes the City Engineer or other appropriate representati ve designated by the City Manager to issue the Notice of Final Acceptance after the one-year warranty period without further City Council action, provided all required warranty repairs are completed to the satisfaction of the City Engineer or other appropriate representative designated by the City Manager; and nothing herein contained shall in any way be deemed to be a waiver, release or relinquishment by City of any obligations imposed upon the contractor or its surety, or sureties, by law or by the above -referenced improvement contract, save and except those obligations specifically mentioned herein.
PASSED AND ADOPTED this _________ day of ________, 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
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Item # C10.
2 Resolution No. ____
ATTEST: APPROVED:
Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
Michael Mutalipassi, City Attorney
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Item # C10.
3 Resolution No. ____
Recording Requested by and
When Recorded Mail to:
City of Milpitas
455 East Calaveras Boulevard
Milpitas, CA 95035
Attention: City Clerk
Record without fee under
Section 6103 - Government Code
State of California
CITY OF MILPITAS
NOTICE OF COMPLETION
(Civil Code Section 9204)
NOTICE IS HEREBY GIVEN:
1. On or about April 20st, 2021 the City Council of the City of Milpitas, a municipal corporation of the State of California, whose address is City Hall, 455 East Calaveras Boulevard, Milpitas, California, 95035 (as owner) entered into a contract for work of: Alviso Adobe Renovation (Phase V – Exhibits), Project No. 5055.
2. A description of the site of which the City is owner for said work of improvement is: 2087 Alviso Adobe Court in the City of Milpitas, Santa Clara County, California, more particularly described on the plans.
3. The name and address of the direct contractor is: Gizmo Art Production, Inc., P.O. Box 411372, San Francisco, CA 94141.
4. A general statement of the kind of work done or materials furnished to the City is as follows: The improvements include fabrication and installation of period furnishings, exhibits, interpretive signage, and visual media.
5. Said work of improvement was accepted by the Milpitas City Council as complete on February 21st, 2023.
************************************************************************************* I, the undersigned, declare that I am the City Engineer or other appropriate representative designated by the City Manager of the City of Milpitas and am authorized to execute the foregoing Notice of Completion and this Verification thereof. I have read the foregoing Notice of Completion. I declare under penalty of perjury that the foregoing Notice of Completion is true and correct. Executed on February ____, 2023 at Milpitas, California.
__________________________________
Insert name of the signatory here
_____________________________________________________________________________________ 192
Item # C10.
4 Resolution No. ____
NOTE: RECORD WITHIN 15 DAYS OF ACCEPTANCE WITH COUNTY RECORDER OF
SANTA CLARA COUNTY
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Item # C10.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: FY 2022-23 2nd Quarter Financial Status Report for the Quarter Ended December 31, 2022 (Staff Contact: Lauren Lai, Finance Director, 408-586-3111) Category: Consent Calendar-Leadership and Support Services Meeting Date: 2/21/2023
Recommendation: Review the FY 2022-23 Quarterly Financial Status Report for the quarter ended December 31, 2022
BACKGROUND:
On June 7, 2022, the City Council approved the Fiscal Year (FY) 2022-23 Adopted Operating Budget in the amount of $207.8 million and the General Fund Budget in the amount of $117.6 million. After adoption of the budget, staff monitors revenues and expenditures for all funds with an emphasis on the General Fund and Enterprise Funds.
ANALYSIS:
This staff report provides a quarterly update on budget versus actual revenues and expenditures of the General, Water and Sewer Funds, the City’s major operating funds. The summary information below as well as the attachments comprise the FY 2022-23 Quarterly Financial Status Report for the quarter ended December 31, 2022. Major revenue sources and expenditures for these funds are discussed below. The attachments provide a more detailed summary of budget versus actual revenues and expenditures for the first quarter of FY 2022-23 as well as prior year actual for comparison purposes.
General Fund
On June 7, 2022, the City Council approved the Fiscal Year (FY) 2022-23 Adopted Operating General Fund Budget in the amount of $117.6 million. As of December 31, 2022, the City received $38.1 million in revenues, or 32.3% of the FY22-23 amended revenue budget and incurred $63.5 million in expenditures, or 53.1% of the FY22-23 amended operating budget. Revenues and expenditures are seasonal with cash flow fluctuations due to timing of revenue receipts and City services rendered. As such, actual percentage of revenues may not match the lapsed time period of the quarterly report (i.e. 32.3% of revenue versus 50% for 6-month time period).
Revenues
As mentioned above, the six months ending December 31, 2022, the General Fund has received $38.1 million, or 32.3% of the FY 2022-23 amended revenue budget of $117.9 million. Overall, General Fund revenues are
19.5% greater than last year at the same time, mainly due to property tax, sales tax, hotel/motel tax and charge for services. The FY2022-23 Adopted Budget did assume a higher, recovering revenue, which is discussed further below by major categories. Thus, although Q2 revenues may be higher than prior year Q2 revenues, these increased levels of revenue are already included in the FY2022-23 Adopted Budget and any amendments will be included in the FY2022-23 mid-year report.
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Item # C11.
Property Taxes and Redevelopment Property Tax Trust Fund: Most property tax revenue is received in December and April. The revenue forecast estimates $42.6 million in total property tax revenue for the City of Milpitas based on the County of Santa Clara (County) projections. Compared to the County’s most recent update on February 10, 2023, the County’s property tax projections are net $3.8 million higher than the amended budget of $42.6 million. However, such variance primarily relates to ERAF allocation that is involved in current litigation and accordingly, the County continues to advise 30% be excluded from the budget and appropriation. Any amendments will be included in the FY2022-23 mid- year report.
,
Sales & Use Tax: Sales tax is usually collected one quarter in arrears. As of December 31, 2022, the City has received four months of sales tax receipts. Revenues are 16.8% higher than last year at the same time primarily due to higher consumption and inflation. As more data becomes available from the sales tax expert consultant, sales tax revenue may need to be adjusted at mid-year to align with current trend. Staff will continue to monitor the slight upward trend.
Sales & Use Tax – Measure F: The district tax became operative April 1, 2021 and sunsets in eight years. As of December 31, 2022, the City has received four months of sales tax receipt for Measure F.
Revenues are 19.0% higher than last year at the same time, which was the go-live quarter.
Franchise Fees: Franchise fees are typically received a month in arrears. Sanitation franchise fees attributed to December has not yet been received. While revenue is trending 1.8% higher compared to last year, business operations are not yet at pre-pandemic level.
Hotel/Motel (TOT) Tax: Revenues are 90.3% higher than last year at the same time primarily due to the end of COVID-19 restrictions and mask mandates, which brought an increase to travel. TOT taxes are typically received a month in arrears. While TOT revenues are improving, it may not recover to pre- pandemic revenue levels as personal and business travel and lodging may be altered. Staff will continue to monitor this revenue. Any amendments will be included in the FY2022-23 mid-year report.
License and Permits: Revenues are 0.2% greater than last year at the same time. City projects’ timelines vary on a case-by-case basis and seldom within City control.
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Item # C11.
Charges for Services: Revenues are 45.0% higher than last year at the same time. COVID-19 restrictions have eased and there is no longer a mask mandate, allowing more Recreation programs, events, and classes to be held compared to prior year which suffered shelter-in-place restrictions.
Use of Money and Property: Revenues are 11.5% higher than last year at the same time, as there was lower invested cash balance with the transfer of $33.9 million of General Fund CalPERS reserve to establish Section 115 Pension Trust.
Expenditures
For the six months ending December 31, 2022, the General Fund has utilized $63.5 million, or 53.1%, of the FY 22-23 amended operating budget of $119.6 million. The amended operating budget represents $117.6 million of the adopted appropriation and $1.9 million of carryover encumbrances. As of December 31, 2022, expenditures are trending 5.3% higher than last year. Higher expenditures are primarily due to filling vacant positions in various departments, especially Police. Staff will continue to monitor expenditures relative to Council authorized appropriations.
Staff would like to highlight the following items that are anomalies and/or current trends.
City Clerk - Two staff vacancies that contributed to personnel savings. City Council - There are significant savings from temp support, memberships and dues, and conferences that are yet to be encumbered.
Economic Development - There were lower expenditures in advertising and contractual services. Engineering Department - There were lower contractual service expenditures. Building Safety & Housing - There are higher than usual expenditure in first quarter was primarily due to timing of various contractual services.
Information Technology - Approximately half of the savings comes from vacancy savings and half from repair and maintenance.
Non-Departmental - The higher expenditures are due primarily to full fiscal year expenditures paid for pension UAL invoices and liability insurance premiums.
Public Works - Higher expenditures are due primarily to higher benefit costs. “Transfers Out” represents budgeted transfers to the Information Technology Equipment Fund Lightning and Maintenance District Fund.
196
Item # C11.
Grants and Donations
In accordance with City Council approved Budget Guidelines, the City Manager has the authority to accept grants and donations up to $100,000. Staff is reporting on acceptance of these grants and donations for this quarter.
1. Department of Alcoholic Beverage Control’s ABC-OTS Grant - $28,700
2. Office of Traffic Safety Grant - $75,000
3. 2022 Bullet Proof Vest Partnership Grant - $11,078
4. CalRecycle Grant FY21-22 - $18,998
Unanticipated Expenditure Reserve
In accordance with the City Council approved Budget Guidelines, as part of the quarterly financial status reports, Staff is reporting on the expenditures from the Unanticipated Expenditure Reserve for this quarter.
Unanticipated Expenditure Reserve Uses
Description Amount
RJA Management Services $2,451
Rod Gould - City strategic planning services 1,800
AG Witt, LLC – COVID 19 advisory services 11,250
Executive Recruitments 10,685
TOTAL for the Quarter Ending December 31, 2022 $ 26,186
Water Maintenance & Operation (M&O) Fund Financial Status
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Item # C11.
Revenues: For the six months ended December 31, 2022, $16.8 million of charges for services, or 50.7%, of the $33.1 million amended budget has been received. Total revenue received amounts to $16.9 million, or
50.4%, of the $33.5 million amended budget.
Expenditures: For the six months ended December 31, 2022, $26.9 million, or 84.7%, of the $31.8 million amended budget has been spent and/or encumbered. The Santa Clara Valley Water District and San Francisco Water Department wholesale water purchase contract encumbrance was posted for the full year in Q1 of FY23.
Sewer Maintenance & Operation (M&O) Fund Financial Status
Revenues: For the six months ended December 31, 2022, $12.9 million of charges for services, or 52.2%, of the $24.7 million amended budget has been received. Total revenue received amounts to $12.9 million, or
52.2%, of the $24.7 million amended budget.
Expenditures: For the six months ended December 31, 2022, $12.6 million, or 75.4%, of the $16.7 million amended budget has been spent and/or encumbered. The City of San Jose wastewater treatment contract encumbrance was posted for the full year in Q1 of FY23.
POLICY ALTERNATIVE(S):
Not Applicable
FISCAL IMPACT:
This is an informational report intended to provide a financial update of the City’s General, Water and Sewer funds for the quarter ended December 31, 2022. No budget amendment is recommended.
California Environmental Quality Act (CEQA):
This item is not a Project under CEQA exempt under CEQA Guideline 15378(b)(4) as it is a government fiscal activity that does not involve a commitment to any specific project which may result in a potentially significant physical impact on the environment.
RECOMMENDATION:
1. Review the FY 2022-23 Quarterly Financial Status Report for the Quarter Ended December 31, 2022
Attachment(s):
1. FY 2022-23 Revenue Report for Fiscal Year-To-Date December 31, 2022
2. FY 2022-23 General Fund Expenditures by Department December 31, 2022
3. FY 2022-23 Water and Sewer Funds Financial Status for Fiscal Year-To-Date December 31, 2022
198
Item # C11.
FY23 FY23 FY23 FY23 FY23 FY23 FY23 FY22 Percentage
Adopted Amended Revenue Revenue Percentage Revenue
Increase
(Decrease)
Budget
Budget
Amendments
Grant
Carryover
Budget
as of As of 12/31/22
Outstanding
Favorable/
(Unfavorable)
of Amended
Budget as of 12/31/21 FY23 / FY22
Property Tax 42,636,192$ 42,636,192$ 7,685,502$ (34,950,690)$ 18.0% 6,989,282$ 10.0% Sales and Use Tax 27,418,416 27,418,416 10,783,066 (16,635,350)$ 39.3% 9,230,978 16.8% Sales and Use Tax - Measure F 6,409,019 6,409,019 2,386,108 (4,022,911)$ 37.2% 2,004,837 19.0% Licenses, Permits & Fines 11,484,759 11,484,759 4,249,334 (7,235,425)$ 37.0% 4,241,015 0.2% Hotel/Motel Tax 8,329,238 8,329,238 5,210,693 (3,118,545)$ 62.6% 2,738,832 90.3% Operating Transfer In 7,168,627 7,168,627 2,144,793 (5,023,834)$ 29.9% 2,096,466 2.3% Charges for Services 5,969,453 5,969,453 2,654,828 (3,314,625)$ 44.5% 1,830,627 45.0% Franchise Fees 5,448,428 5,448,428 1,392,807 (4,055,621)$ 25.6% 1,367,806 1.8% Intergovernmental 1,081,728 254,235 1,335,963 567,038 (768,924)$ 42.4% 422,407 34.2% Other Taxes 1,067,452 1,067,452 467,785 (599,668)$ 43.8% 655,847 -28.7% Other Revenues 349,657 349,657 365,788 16,131$ 104.6% 121,726 200.5% Interest Income 264,000 264,000 188,971 (75,029)$ 71.6% 169,461 11.5% Total General Fund Revenue 117,626,970$ -$ 254,235$ 117,881,205$ 38,096,713$ (79,784,492)$ 32.3% 31,869,283$ 19.5% General Fund Revenues
CITY OF MILPITAS
General Fund Revenues
For Fiscal Year-To-Date December 31, 2022
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Item # C11.
Departments
Adopted
Budget Amendments Grants C/O Encumb. C/O
Amended
Budget Expenditure Encumbrance Total YTD Exp.
% of
Amended
Budget
FY22 Expenditure
Including
Encumbrance
% of Amended
FY22 Budget
Building Safety & Housing 6,175,459 0 0 86,804 6,262,263 2,803,004 506,231 3,309,235 52.8% 2,853,963 41.3% City Attorney 1,198,946 0 0 32,978 1,231,924 267,757 353,208 620,965 50.4% 998,216 40.3% City Clerk 567,660 0 0 0 567,660 194,390 48,892 243,282 42.9% 266,958 48.0% City Council 557,729 0 0 50,933 608,662 150,175 50,050 200,225 32.9% 195,474 38.9% City Manager 2,149,366 0 0 149,830 2,299,197 1,044,214 180,305 1,224,520 53.3% 951,568 41.1% Economic Development 965,847 0 0 750 966,597 390,539 750 391,289 40.5% 441,095 43.0% Engineering 3,971,355 0 0 42,932 4,014,287 1,636,013 73,728 1,709,741 42.6% 1,728,944 44.5% Finance 4,384,364 0 0 71,825 4,456,189 1,928,670 427,595 2,356,265 52.9% 2,483,603 51.3% Fire 28,188,870 0 0 164,068 28,352,938 14,127,726 507,763 14,635,489 51.6% 14,906,100 52.5% Human Resources 1,937,584 0 0 61,696 1,999,281 911,622 145,891 1,057,513 52.9% 1,240,794 51.6% Information Technology 4,091,945 0 0 7,830 4,099,775 1,315,450 265,298 1,580,747 38.6% 1,869,706 54.4% Non-Departmental 7,570,821 0 0 385,586 7,956,407 5,754,551 878,004 6,632,555 83.4% 5,357,275 80.8% Planning 1,927,812 0 0 305,014 2,232,826 957,129 247,193 1,204,322 53.9% 1,217,029 47.4% Police 37,935,204 0 17,819 108,284 38,061,308 18,185,083 453,394 18,638,477 49.0% 16,778,362 45.9% Public Works 9,692,160 0 0 391,727 10,083,887 4,594,828 1,555,669 6,150,498 61.0% 6,012,433 65.1% Recreation & Community Services 5,969,980 0 0 47,027 6,017,007 2,859,647 345,620 3,205,267 53.3% 2,639,946 27.7% Transfers Out 341,866 0 0 0 341,866 341,866 0 341,866 100.0% 340,590 100.0% Grand Total 117,626,969 0 17,819 1,907,284 119,552,072 57,462,664 6,039,591 63,502,255 53.1% 60,282,055 50.1% City of Milpitas
General Fund Expenditure By Department Financial Status For Fiscal Year-To-Date December 31, 2022
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Item # C11.
Revenue Categories Adopted Budget Amendments Grants C/O Amended Budget Receipt Outstanding % Receipt Receipt
12/31/2021
% Receipt
12/31/2021
Charges for Services 33,144,215 0 0 33,144,215 16,808,622 16,335,593 50.7% 16,340,511 52.5% Intergovernmental 0 0 0 0 0 0 0.0% 588
Licenses, Permits & Fines 0 0 0 0 (74,324) 74,324 0.0% (78,725) Other Revenues 0 0 0 0 16,523 (16,523) 0.0% 0 0.0%
Use of Money and Property 369,729 0 0 369,729 139,265 230,464 37.7% 124,532 33.5% Grand Total 33,513,944 0 0 33,513,944 16,890,085 16,623,859 50.4% 16,386,906 52.0% Expenditures by Department Adopted Budget Amendments Grants C/O Encumb. C/O Amended
Budget Expenditure Encumbrance Total YTD Exp.
% of Amended
Budget
Total YTD Exp.
12/31/2021
% of Amended
Budget 12/31/2021
City Attorney 9,000 0 0 0 9,000 0 9,000 9,000 100.0% 12,456 176.2% Engineering 0 0 0 0 0 0 0 0 0.0% 29,500 100.0%
Finance 1,111,223 0 0 18,537 1,129,760 475,585 86,236 561,821 49.7% 475,058 45.7% Non-Departmental 23,073,631 0 0 408,556 23,482,187 8,450,981 14,238,248 22,689,229 96.6% 20,045,270 97.2% Public Works 4,372,217 0 0 84,419 4,456,636 2,156,736 140,852 2,297,588 51.6% 2,225,830 51.8% Transfers In/Out/Revenue 2,687,393 0 0 0 2,687,393 1,343,697 0 1,343,697 50.0% 1,285,704 50.0% Grand Total 31,253,464 0 0 511,513 31,764,976 12,426,999 14,474,335 26,901,334 84.7% 24,073,818 84.3% Revenue Categories Adopted Budget Amendments Grants C/O Amended Budget Receipt Outstanding % Receipt Receipt
12/31/2021
% Receipt
12/31/2021
Charges for Services 24,482,217 0 0 24,482,217 12,825,508 11,656,709 52.4% 10,673,052 51.7% Intergovernmental 0 0 0 0 0 0 0.0% 588
Licenses, Permits & Fines 0 0 0 0 (42,050) 42,050 0.0% (54,075) Operating Transfer In 39,282 0 0 39,282 39,282 0 100.0% 11 100.0% Use of Money and Property 205,863 0 0 205,863 79,529 126,335 38.6% 55,597 22.2% Grand Total 24,727,362 0 0 24,727,362 12,902,269 11,825,093 52.2% 10,675,173 51.1% Expenditures by Department Adopted Budget Amendments Grants C/O Encumb. C/O Amended
Budget Expenditure Encumbrance Total YTD Exp.
% of Amended
Budget
Total YTD Exp.
12/31/2021
% of Amended
Budget 12/31/2021
City Manager 0 0 0 0 0 0 0 0 0.0% 0
Engineering 0 0 0 0 0 0 0 0 0.0% 25,500 100.0%
Finance 711,305 0 0 18,537 729,842 324,640 86,236 410,876 56.3% 332,449 54.4% Non-Departmental 10,437,767 0 0 27,145 10,464,912 5,967,830 3,460,584 9,428,414 90.1% 11,000,607 88.6% Public Works 3,881,262 0 0 145,571 4,026,833 1,783,209 228,105 2,011,314 49.9% 1,401,485 47.8% Transfers In/Out/Revenue 1,444,196 0 0 0 1,444,196 722,098 0 722,098 50.0% 741,483 50.0% Grand Total 16,474,530 0 0 191,254 16,665,784 8,797,777 3,774,924 12,572,702 75.4% 13,501,524 77.3% City of Milpitas
Water and Sewer Financial Status
For Fiscal Year-To-Date December 31, 2022 (unaudited)
Water Fund
Sewer Fund
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Item # C11.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Review Fiscal Year 2022-23 Mid-Year Report, Approve FY2022-23 Mid-year Budget Amendments, Adopt a Resolution Amending Resolution No. 1626, the Classification Plan, to Reclassify Positions, Approve and Adopt the Pay Schedule titled “New Job Classifications/Salary Table (Staff Contact: Lauren Lai, Finance Director, 408-586-3111)
Category: Leadership and Support Services
Meeting Date: 2/21/2023
Recommendation:
1. Review the FY 2022-23 Mid-Year Report
2. Approve FY 2022-23 Mid-Year Budget Amendments
3. Adopt a Resolution Amending Resolution No. 1626, the Classification Plan, to Reclassify Positions, Approve and Adopt the Pay Schedule titled “New Job Classifications/Salary Table”, and Amend Budgeted Allocated Positions
Background:
On June 7, 2022, the City Council approved the Fiscal Year (FY) 2022-23 Adopted Operating Budget in the amount of $207.8 million and the General Fund Budget in the amount of $117.6 million. After adoption of the budget, staff monitors revenues and expenditures for all funds with an emphasis on the General Fund and Enterprise Funds.
Per the California Code of Regulations § 570.5, any CalPERS agency such as the City is required to bring all pay schedules for its CalPERS benefited employees before the governing board for review and approval.
Analysis:
This staff report provides FY2022-23 mid-year budget adjustments and position change recommendations for Council consideration. The final section of this report discusses the recommendation to adopt salary tables for various employee classifications.
General Fund
On June 1, 2022, the City Council approved the Fiscal Year (FY) 2022-23 Adopted Operating General Fund Budget in the amount of $117.6 million. As of December 31, 2022, the City received $38.1 million in revenues and incurred $63.5 million in expenditures. Revenues and expenditures are seasonal with cash flow fluctuations due to timing of revenue receipts and City services rendered. As such, actual percentage of revenues may not match the lapsed time period.
Revenues
For the six months ended December 31, 2022, the General Fund has received $38.1 million. The proposed FY22-23 mid-year adjustments total $7.2 million, resulting in $125.09 million FY22-23 amended revenue budget.
202
Item # 13.
Property Taxes (Increase $1,404,852): Most property tax revenue is received in December and April.
The adopted budget estimate of $42.6 million in total property tax revenue was based upon the County of Santa Clara (County) projections in spring 2022. Compared to the County's most recent update on February 10, 2023, the County's property tax projections are net $3.8 million higher than the adopted budget. However, such variance primarily relates to Education Revenue Augmentation Fund (“ERAF”) allocation that is involved in current litigation and accordingly, the County continues to advise excluding a significant portion of that amount from the budget and appropriation. Accordingly, this FY2022-23 mid-year report includes a conservative amendment to increase property taxes by $1.4 million.
Sales & Use Tax (Increase $1,845,030): Personal and business sales transactions increased in 2022 and several significant payments were delayed from FY21-22 into FY22-23 resulting in a higher-than usual FY22-23 revenue. HdL provides sales tax audit and reporting to the City. For FY2022-23, HdL estimates City Sales & Use tax revenue at $29.2 million or approximately $1.8 million higher than the adopted budget.
Transient Occupancy Tax (TOT) (Increase $2,146,384): Revenues are 90.3% higher than last year at the same time primarily due to easing of COVID-19 restrictions and two new hotel operators. While TOT revenues are improving, it may not recover to pre-pandemic revenue levels of $14.9 million in FY2018-19, as travel and lodging may be altered.
Licenses, Permits and Fees (Decrease $1,500,000): For FY2022-23, the proposed amendment decreases revenue by $1.5 million, resulting in estimated License, Permits & Fees of $9.9 million. The proposed amendments align with current trends for Building Permit and Plan Check, which are experiencing reduced projects for plan check and building permits in comparison to prior years.
Charges for Services (Increase $704,571): For FY2022-23, the proposed amendment increases revenue by $0.7 million, resulting in estimated Charges for Services of $6.6 million. The proposed amendments align with current trends for Recreation and Cultural Services, as follows:
o Recreation Fees – The proposed increase is $337,104 and FY2022-23 revenue estimate is $1.8 million. Both recreation programs and service demands are increasing. o After the Bell (ATB) program – The proposed increase is $0.3 million and FY2022-23 revenue estimate is $0.7 million.
o Special Event Fees- The proposed increase is $329,258 and FY2022-23 revenue estimate is $0.3 million.
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Franchise Fees (Increase $90,237): Gas and television franchises are both trending slightly higher than the adopted budget. For FY2022-23, the proposed amendment increases the revenue by $90,237, resulting in estimated City franchise revenue of $5.5 million.
Intergovernmental (Increase $1,972,232): For FY2022-23, the proposed amendment increases intergovernmental revenue by $1.9 million, resulting in estimate intergovernmental revenue of $3.2 million. It includes $721,000 for the State Contribution- Recreation (Expanded Learning Opportunities Program “ELOP”) reimbursement, $176,232 for Federal – Safer Grant #2 and $1,075,000 for the State contributions – Planning (Priority Development Area “PDA”/Gateway, Local Early Action Planning “LEAP”/HOZ GT-1128) $1.07M. There are correlating offsets in the proposed expenditure increases below.
Expenditures
For the six months ended December 31, 2022, the General Fund incurred $63.5 million of expenditures and encumbrances. The proposed FY22-23 mid-year adjustments total $5.2 million, resulting in $124.7 million FY22-23 amended expenditure budget.
Salaries (Increase $756,238): For FY2022-23, the proposed amendments increase salaries by $0.7 million due to the following:
o Temporary salaries increase of $159,779 for Recreation & Cultural services programs, which are supported by revenues.
o Fire Overtime increase of $0.5 million of which $438,536 is non-reimbursable and $157,923 is reimbursable Strike team.
o Dept. of Public Works overtime increase of $0.1 million. o Staffing cost of $100,000 for information technology will be swapped with ARPA $100,000 financial operations assessment project for procurement expediency. Net impact is $0. o Vacancy savings is estimated at $2.3 million (or 2.4% of staffing costs) in the adopted budget.
This proposed amendment allocates the savings amongst the departments accordingly.
Benefits (Increase $270,000): For FY2022-23, the proposed amendment increases OPEB (Other Post Employment Benefit) contribution by $0.03 million. This relates to the reduced discount rate on the California Employers’ Retiree Benefit Trust (CERBT).
Services & Supplies (Increase $2,233,785): For FY2022-23, the proposed amendment increases services & supplies by $2.1 million due to the following:
o Contractual services amendment of $1,519,035 increase primarily relates to programs with revenue offsets: Local Early Action Planning “LEAP”/HOZ GT-1128 Grant appropriation amendment ($1,075,000), recreation programs Expanded Learning Opportunities Program “ELOP” amendment ($104,238) and recreation transaction fees amendment ($249,707). 204
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o Contract Services for Plante Moran (previously ARPA funded) is now General Fund resourced for procurement expediency.
o Claim settlement amendment relates to a settlement for $250,000.
o General liability insurance premium amendment is $69,000.
Operating Transfer Out (Increase $1,900,000): For FY2022-23, the proposed amendment increases operating transfer out by $1.9 million to General Government CIP fund. This provides reserves for future City capital projects. $0.2 million is for CP 3495 Safe Facility Improvement costs primarily incurred for COVID mitigation and $1.7 million for General Government CIP reserve.
Other Funds
CDBG Fund Expenditure- This proposed amendment recognizes costs of about $15,000 for accountant directly supporting CDBG transactions.
Enterprise funds (Funds 400, 450, 295 and 500) - The proposed amendment is to increase appropriation $31,000 for General Liability insurance premium, net amongst these funds.
Affordable Housing Unrestricted Fund 217 – The proposed amendment is to increase appropriation $118,139 to repay disallowed CDBG expenditure that exceed the public service cap during FY 21-22.
Other Post Employment Benefit (OPEB) contribution- The proposed amendment recognizes increased funding by $30,000 due to valuation changes related to reduced investment returns.
Common Interest Group Legal Services - The proposed amendment is to increase appropriation for an additional $1,000,000 fees associated with common interest group legal services in Sewer Maintenance & Operations Fund #450.
CFD 2008 Utilities (Fund 238) – The proposed amendment is to increase CFD 2008 utilities appropriation for $50,000 to align with the current utilities expenditure trend.
Capital Improvement Program (CIP) amendments are as follow:
o CP 3465 - Fire Station I Modular Building-This action increases appropriation for CP 3465 in amount of $250,000 ARPA fund. Originally the ARPA funding was earmarked for HVAC contract services but due to procurement regulations, swapping the projects is proposed. o CP 3464 - Mobile Emergency Operations Center-This action defunds CP3464 in amount of $60,000 and returns funding to Federal Asset Seizure Fund 263. o CP 3495 - Safe Facilities Improvement-This action increases transfer-in resources into CP 3495 in amount of $200,000 from General Fund to rebalance the fund balance. o CP 3423 - Replacement FSAS-This action defunds CP 3423 and returns $48,000 to General Government CIP Fund.
o CP 3421 – Police Department Records Management System-This action defunds CP 3421 and returns $500,000 to General Government CIP Fund.
o CP 3437 - Milpitas Gateway Main Specific Plan-This action defunds CP 3437 and returns $360,000 to General Government CIP Fund.
o CP 3447- Fire Station No. 2 Replacement-This action defunds CP 3447 and returns $1,500,000 to General Government CIP Fund.
o CP 5102 - McCandless Park-This action defunds CP 5102 and returns $402,665 to General Government CIP Fund.
o CP 3462 - On Call Facility Maintenance-This action increases appropriation for CP 3462 in amount of $250,000 to align with current needs. Funding source will be General Government CIP Fund. 205
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o CP 3411 - Sinclair LLMD Improvements 98-1- This action modifies CP 3411 budget by $41,125. o CP 3469 - Metro Impact Fee Study- The proposed amendment creates CP 3469 with $150,000 appropriation from TASP Fund #350.
Also for Council consideration is the adoption of resolution amending Resolution No. 1626, the Classification Plan, to Reclassify Positions, Approve and Adopt the Pay Schedule titled “New Job Classifications/Salary Table”, and Amend Budgeted Allocated Positions. The resolution entitles range adjustments, salary table approval and classification title change, as summarized below.
Range Adjustment
At the March 1,2022 Closed Session, City Council approved a Side Letter between the City of Milpitas and United Public Employees of California (Local 792) - Milpitas Employees Association (MEA) to align the Water Systems Operator-40 hour classification rate of pay to the Equipment Maintenance Worker III-40 hour classification rate of pay and the Assistant Water Systems Operator-40 hour classification rate of pay to the Equipment Maintenance Worker II– 40 hour classification rate of pay.
The request was made and approved in closed session to establish internal equity between these classifications. The increase to align the Water Systems Operator-40 hour classification rate of pay to the Equipment Maintenance Worker III– 40 hour classification rate of pay was $0.27 per hour at Step A up to $0.35 per hour more to Step E (increased annual cost of $8,098 for the year). The increase to align the Assistant Water Systems Operator-40 hour classification rate of pay to the Equipment Maintenance Worker II– 40 hour classification rate of pay was approximately $0.25 per hour at Step A up to $0.31 per hour more to Step E (increase annual cost of $636 for the year)
This hourly pay alignment was intended to be placed in the 2022-2023 Annual Budget but was inadvertently left off and as such being recommended to the Mid-Year Budget Amendment effective May 17, 2022.
Since the City Council approved this alignment, MEA has had one a Cost of Living Adjustment in of 3% in July 3, 2022 which is reflected in the salary table being brought forward this evening.
Salary Table Approval
As required by State law, staff prepared a resolution which includes the most current Salary for your review and approval. The salary table is consistent with Council approved Memoranda of Understandings and salary ranges granted for the International Association of Firefighters Local 1699 employees and is effective January 1, 2023.
Classification Title Change
June 8, 2022 the City finalized discussions with United Public Employees of California (UPES Local 792, AFL- CIO) Mid Management and Confidential Unit to amend the title of Video Media Specialist to Digital Media Specialist. This title change was requested to be more reflective of modern technology moving away from cable to digital media. Both the City and the Mid Management and Confidential Unit were in agreement.
Policy Alternative:
Alternative 1: Do not approve FY 2022-23 Mid-Year Budget Amendment Recommendations
Pros: Not approving certain budget amendment recommendations will result in not aligning the budget with actual trends and make it more difficult to manage the budget and address urgent service demands.
Cons: The recommended budget amendment recommendations include urgent funding recommendations and adjustments to revenue estimates, positions and pay schedules.
Reason not recommended: Not approving the FY 2022-23 Mid-Year budget amendment recommendations will 206 Item # 13.
result in not funding certain programs, adjust revenue estimates to year-to-date revenue proceeds received, and adjust positions and/or pay schedules.
Fiscal Impact:
In summary, if Council approves the recommendations, the General Fund revenues will increase by $7.2 million and appropriations by $5.2 million, net encumbrances carryforward of $1.7 million and estimated net surplus is $0.4 million. General Fund reserves and fund balances would be administered in accordance with City policies.
California Environmental Quality Act:
The action being considered is exempt from environmental review pursuant to CEQA Guideline 15378(b)(4) as a governmental fiscal activity without a commitment to any project that would result in a potentially significant impact on the environment. Further, it is also exempt pursuant to CEQA Guideline 15378(b)(2) as a continuing administrative activity including the purchases of supplies and personnel-related actions, etc.
Recommendation:
1. Review the FY 2022-23 Mid-Year Report
2. Approve FY 2022-23 Mid-Year Budget Amendments
3. Adopt a Resolution Amending Resolution No. 1626, the Classification Plan, to Reclassify Positions, Approve and Adopt the Pay Schedule titled “New Job Classifications/Salary Table”, and Amend Budgeted Allocated Positions
Attachment(s):
1. FY 2022-23 Mid-Year Budget Adjustment Recommendations
2. Exhibit A – New Job Classifications/Salary Table
3. Resolution
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CITY OF MILPITAS
FY 2022-23 Mid-Year Budget Funding Requests
Operating Budget
Item # Department Title Description Expenditure
General Fund
Expenditure
Other Funds
Revenue General
Fund
Revenue Other
Funds
1 Building License and Permits Building Permit Revenue This action recognizes decreases in building permit revenue due to lower development activities.
(1,500,000)
2 Fire Personnel Fire Non-Reimbursable Overtime This action recognizes expenditure for non-reimbursable overtime to align with current trend.
438,536
3 Fire Intergovernment Revenue &
Salaries and Personnel
Fire Reimbursements Fire Season Mutual Aid This action recognizes revenue for reimbursable overtime and medicare costs related to fire mutual aid provided in response to the wildfire season, net estimated revenue and expenditure $0.2 million. 157,923 157,923
4 Fire Intergovernment Revenue &
Equipment
Fire Reimbursements Fire Season Mutual Aid This action recognizes revenue for reimbursable engine costs and support vehicle costs related to fire mutual aid provided in response to the wildfire season.
25,170
5 Fire Intergovernment Revenue &
Salaries and Personnel
Fire Reimbursements Fire Season Mutual Aid This action recognizes revenue for reimbursable administrative costs related to fire mutual aid provided in response to the wildfire season. 18,309
6 Finance Personnel CDBG Accountant Expenditure This action recognizes personnel expenditure for Accountant who worked on CDBG project and increases appropriation in CDBG for this purpose.
15,000
7 Finance Supplies and Services Plante Moran Assessment and IT Personnel ARPA Swap
This action decreases expenditure in Finance for $100k related to Finance ERP assessment, shifts the expenditure to IT Department and shifts IT personnel cost to ARPA fund for $100k.
-
8 Finance Supplies and Services PLAN JPA This action increases appropriation for PLAN JPA premium because invoices were higher than original budget.
69,000 31,000
9 Finance Supplies and Services Plante Moran Phase 3-5 Cost Plante Moran - contract amendment and budget appropriation 90,000 10 Housing Supplies and Services CDBG Expenditure Realignment This action increases appropriation for Affordable Housing Fund (Fund 217 unrestricted) to repay disallowed CDBG expenditure that exceed the public service cap during FY 21-22.
118,139
11 Non-Departmental Operating Transfers Out Operating Transfer to CP3495 Safe Facilities Improvement
This action recognizes measures implemented for COVID and related to HVAC and other measures that increased expenditures by $200,000.
Transfers to CIP 3495
200,000
12 Non-Departmental Operating Transfers Out Operating Transfer to CIP Projects -Gen Gov CIP This action recognizes operating transfer out to General 1,700,000 13 Non-Departmental Personnel OPEB (other post employment benefit) Contribution
This action recognizes increased funding by $300,000 due to valuation changes related to reduced investment returns.
270,000 30,000
14 Non-Departmental Supplies and Services Legal Settlement This action recognizes expenditure related to settlement with former city employee for $250,000
250,000
15 Non-Departmental Property Tax Increase Property Tax This action increases Property Tax revenue to align with County projection based on current trend, net estimated FY23 revenue $1.4 million. This will increase General Fund fund balance by $1.4 million. 1,404,852
16 Non-Departmental Sales & Use Tax Increase Sales Tax This action increases Sales Tax revenue to align with HDL projection based on current trend, net estimated FY23 revenue $29.3 million. 1,845,030
17 Non-Departmental Sales & Use Tax Increase Sales Tax - Measure F This action increases Sales Tax revenue to align with HDL projection based on current trend, net estimated FY22 revenue $7.0 million. 545,981
18 Non-Departmental Franchise Tax Increase Franchise Tax This action increases Franchise Tax revenue to align with HDL projection based on current trend, net estimated FY22 revenue $5.5 million.
90,237
19 Non-Departmental Transient Occupancy Tax Transient Occupancy Tax Increase This action recognizes increased Transient Occupancy Tax revenue to align with current 23% growth trend, net estimated FY23 revenue $10.4 million.
2,146,385
20 Non-Departmental Personnel Vacancy Savings Adjustment - Departments This action allocates vacancy savings to the appropriate departments:
Building, Safety and Housing - $112,019
City Attorney Office - $247,999
City Clerk -$90,044
City Council -$68,065
Engineering -$293,485
Finance -$50,000
Information Technology -$415,238
Planning -$51,132
Police -$986,425
Recreation and Community Services -$70,799
2,385,205
21 Non-Departmental rpa Vacancy Savings Adjustment This action allocates vacancy savings to the appropriate departments. (2,385,205) 22 Planning Supplies and Services LEEP/HOZ GT-1128 Grant This action recognizes appropriation and revenues to account for LEEP/HOZ GT-1128 grant.
1,075,000 1,075,000
24 Public Works Personnel Overtime 100,000
23 Public Works Supplies and Services Common Interest Group Legal Services This action increases appropriation to account for fees associated with common interest group legal services.
1,000,000
24 Public Works Supplies and Services Increase CFD 2008 Utilities This action increases CFD 2008 utilities appropriation to align with current utilities expenditure trend.
50,000
25 Recreation Supplies and Services, Personnel
and ELOP Revenue
Increase ELOP revenue and associated expenditure This action increases ELOP revenue to align with State ELOP program funds and related program expenditure.
559,857 721,000
27 Recreation Charges for Services Increase after the bell revenue This action increases after the bell revenue due to higher participation. 329,258 28 Recreation Charges for Services Recreation Transaction Fee This action increases recreation transaction fees due to increase in program offers and enrollment.
249,707 337,104
29 Recreation Charges for Services Special Events Fee This action increases recreation transaction fees 38,209 30 Finance Grant interest appropriation Increase grant revenue and expenditure budget (DOC Recycling grant GT-1085)
This action is to increase approriation of the grant revenue and expenditure.
214 214
31 Finance Grant interest appropriation Increase grant revenue and expenditure budget (COPS grant 2021 GT-1138)
This action is to increase approriation of the grant revenue and expenditure.
2,109 2,109
32 Finance Grant interest appropriation Increase grant revenue and expenditure budget (COPS grant 2022 GT-1140)
This action is to increase approriation of the grant revenue and expenditure.
515 515
33 Finance Grant interest appropriation Increase grant revenue and expenditure budget (Board of State and Community Corrections (BSCC)
City of Law Enforcement grant BSCC GT-1107)
This action is to increase approriation of the grant revenue and expenditure.
7,919 7,919
34 Finance Grant interest appropriation Increase grant revenue and expenditure budget (Board of State and Community Corrections (BSCC)
Break-In grant GT-1124)
This action is to increase approriation of the grant revenue and expenditure.
24,250 24,250
Total 5,160,023 1,279,146 7,209,288 60,177 General Fund Reserve 2,049,265
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CITY OF MILPITAS
FY 2022-23 Mid-Year Budget Funding Requests
Operating Budget
Item # Department Title Description Expenditure
General Fund
Expenditure
Other Funds
Revenue General
Fund
Revenue Other
Funds
Item # Department Title Description Expenditure
General Fund
Expenditure
Other Funds
Revenue General
Fund
Revenue Other
Funds
C1 Capital Improvement Budget Adjustment CP 3465 - Fire Station I Modular Building This action increases appropriation for CP 3465 in amount of $250k from ARPA fund. Originally the ARPA funding was earmarked for HVAC contract services but due to procurement regulations, Council approved the funding swap with CP 3465.
250,000
C2 Capital Improvement Budget Adjustment CP 3464 - Mobile Emergency Operations Center This action defunds CP3464 in amount of $60k and returns funding to Fund 263.
(60,000)
C3 Capital Improvement Budget Adjustment CP 3495 - Safe Facilities Improvement This action increases transfer-in resources for CP 3495 in amount of $200k from General Fund to rebalance the fund balance.
200,000
C4 Capital Improvement Budget Adjustment CP 3423 - Replacement FSAS This action defunds CP 3423 and return funds to General Government CIP Fund.
(48,000)
C5 Capital Improvement Budget Adjustment CP 3421 - PD Records Management System (500,000) C6 Capital Improvement Budget Adjustment CP 3437 - Milpitas Gateway Main Specific Plan This action defunds CP 3437 and return funds to General Government CIP Fund.
(360,000)
C7 Capital Improvement Budget Adjustment CP 3447 Fire Station No. 2 Replacement This action defunds CP 3447 and return funds to General Government CIP Fund.
(1,500,000)
C8 Capital Improvement Budget Adjustment CP 5102 McCandless Park This action defunds CP 5102 and return funds to General Government CIP Fund.
(402,665) -
C9 Capital Improvement Budget Adjustment CP 3462 - On Call Facility Maintenance This action increases appropriation for CP 3462 in amount of 250k to align with current needs. Funding source will be General Government CIP Fund.
250,000
C10 Capital Improvement Budget Adjustment CP 3411 - Sinclair LLMD Improvements 98-1 This action corrects CP 3411 budget. $41,125 was recorded twice in the FY21 budget.
(41,500) (41,500)
C11 Capital Improvement Budget Adjustment CP 3469 - Metro Impact Fee Study This action creates CP 3469. Funding source will be TASP fund. 150,000 150,000 ARPA - Financial system $ swap
ARPA - safe facility $ swap
Capital Budget Adjustments
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2/8/2023 CITY OF MILPITAS - HUMAN RESOURCES
All Job Classifications/Salary Table Effective 01/01/2023