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CC 10-02-95CC-909 MINUTES Cupertino City Council Regular Meeting October 2, 1995 PLEDGE OF ALLEGIANCE At 6:45 p.m., Mayor Dean called the meeting to order and led the pledge of allegiance. ROLL CALL Council members present: Don Burnett, John Bautista, Barbara Koppel, Lauralee Sorensen, and Wally Dean. Staff Present: City Manager Don Brown, Director of Public Works Bert Viskovich, Director of Community Development Bob Cowan, Director of Parks and Recreation Steve Dowling, Director of Administrative Services Carol Atwood, Personnel Officer Bill Woska, Deputy City Clerk Roberta Wolfe, Public Information Officer Donna Krey, City Attorney Charles Kilian. CEREMONIAL MATTERS - PRESENTATIONS Presentation of proclamations and gifts to Toyokawa visitors. Twelve students and two teachers were present. Yoshio Asano and Kunio Sugiura, the two teachers, and Natsumi Tanaka, one of the students, spoke about the sister city relationship. Mayor Dean thanked the visitors and gifts were exchanged. POSTPONEMENTS - None ORAL COMMUNICATIONS - None. CONSENT CALENDAR Koppel moved and Burnett seconded to approve the items on the Consent Calendar, and the motion carried 5-0 with Sorensen abstaining on Item 4. Resolution No. 9448: Accounts Payable, September 15, 1995. Resolution No. 9449: Accounts Payable, September 22, 1995. Resolution No. 9450: Payroll, September 22, 1995. October 2, 1995 Cupertino City Council Page 2 10. 11. 12. 13. 14. Approval of minutes of the regular adjourned meeting of September 18, 1995. Resolution No. 9451: Approving the annexation of "Orange Avenue 95-02", located on the west side of Orange Avenue between Almaden Avenue and San Fernando Avenue; Chu/Tang (APN 357-15-097). Resolution No. 9452: Approving the annexation of "Byrne Avenue 95-04", located on the west side of Byrne Avenue between Lomita Avenue and Hermosa Avenue; Lo/Lin (APN 357-11-012). Resolution No. 9453: Approving change order No. 22 for Cupertino Nine School Site Improvements, Project 93-9106. Resolution No. 9454: Accepting quitclaim deed and authorization for underground water rights from The E & H First Family Limited Partnership, a California Limited Partnership; APN 342-29-062; Alcalde Road at Foothill Boulevard Resolution No. 9455: Accepting quitclaim deed and authorization for underground water rights from the Marianist Novitiate, a California Corporation; APN 342-29-037; 22655 Alcalde Road. Resolution No. 9456: Accepting grant of easement for roadway purposes from the Marianist Novitiate, a California Corporation; APN 342-29-037; 22655 Alcalde Road. Resolution No. 9457: Approving the final map and improvement plans of Tract No. 8687; Homestead Road and De Anza Boulevard; Developer, SCS Development Co. (dba Citation Homes General); accepting certain easements; authorizing signing of final map and improvement plans; authorizing the execution of agreement. Resolution No. 9458: Setting date for consideration of annexing area designated "Upland Way 95-03", property located on the west side of Upland Way between Rainbow Drive and Bubb Road, approximately 1.8 acres, IncardonaYGrose/Roberts (APNs 36-03-007 and -008). Monthly Treasurer's report and budget update, August, 1995. Resolution No. 9459: Rescinding Resolution No. 9443 and fixing time and place for hearing to order vacation of public utility easement at 19140 Stevens Creek Boulevard October 2, 1995 Cupertino City Council Page 3 15. Resolution No. 9460: Accepting quitclaim deed and authorization for underground water rights from David L. Blockus and Marilyn J. Blockus, APN 324-14-058, 10170 Camino Vista. 16. Resolution No. 9461: Accepting quitclaim deed and authorization for underground water rights from Wei-Mein Swen and Hsai-Chien Yang; APN 326- 20-014; 10182 Adriana Avenue. 17. Resolution No. 9462: Amending Resolution No. 8497, solid waste franchise agreement between the city and Los Altos Garbage Company to correct the rate adjustment formula. Vote Members of the City Council AYES: Bautista, Burnett, Koppel Sorensen, Dean NOES: None ABSENT: None ABSTAIN: Sorensen on Item 4 only ITEMS REMOVED FROM THE CONSENT CALENDAR - None PUBLIC HEARINGS 18. Applications 9-U-95, 8-Z-95 and 16-EA-95 - Cupertino City Center Associates - Use Permit to construct 24 single-family homes on 2.41 acres located on the east side of Torte Avenue between Stevens Creek Boulevard and Rodrigues Avenue; zoning approval to allow low to medium density residential development. Environmental Determination: The Planning Commission recommends the granting of a negative declaration. Recommended for denial. (Staff requests continuance of Application No. 9-U-95 to October 16, 1995). (a) First reading of Ordinance No. 1701: "An Ordinance of the City Council of the City of Cupertino Amending Section 1 of Ordinance No. 2 of the Cupertino Municipal Code By Amending Application No. 2-Z-83 To Rezone Approximately 2.41 Acres To Low to Medium Density Residential; Located on the East Side of Torre Avenue South of Stevens Creek Boulevard (Application No. 8-Z-95 - Classic Communities, Inc.)." Community Development Director Bob Cowan reviewed the steps that might be taken at this meeting. He said Council could decide the zoning tonight and the use permit would be heard at the next meeting. October 2, 1995 Cupertino City Council Page 4 City Attorney Charles Kilian stated for the record that at the last Council meeting there was a discussion between the Council and staff regarding the buildability of the triangle area in relation to a zoning decision. He said Council inadvertently took a 3-2 vote in favor of approving the zoning request allowing for development of some sort on the triangle site. However, there was no public input into that decision. While the Brown Act does not specifically require remedial action, he believed that the spirit of the Act would require that the Council undergo remedial action. His recommendation was that Council open the public hearing with respect to the zoning, hear the public on that issue, rescind its decision of last meeting and defer it until after the public input. He said they could continue the decision on the zoning and hear it with the use pe,mit if they desired, but they can make the decision on the zoning after the public input if they wish. He stated that the public had been properly notified of the hearing. Kilian suggested that Council rescind the decision taken at the last meeting regarding this parcel. Bumett moved and Koppel seconded to rescind the previous action. Motion carried 5-0. Cowan continued with the staff report regarding the rezoning. This included the history of actions on the property and transfer of development potential between properties. In summary, he believed there is a long history of allowing development credits to be transferred as long as the trafftc works in each case. He said the Planning Commission's recommendation is inconsistent with the planning principles that allow property owners to make the transfers. Council had previously discussed development options or types and he thought it would be wrong to say that the property cannot be developed. He said the housing Element discusses the need for some 300 houses in that general area, and he disagreed with the Planning Commission's recommendation based on inconsistency with the General Plan. He said there were three Commissioners present for the vote and the vote was 2-1. There was no legal counsel present. In answer to Council questions, Cowan stated that the General Plan allows a mix of three types so that the present owner could "purchase" some additional density from Tandem or one of the other property owners. Cowan said transferring rights means the development intensity that person may be allowed by virtue of the floor area ration (FAR) on their property could be transferred out. That's been done 20 to 30 times over the last 30 years. Bumett said it seems that if there is an open space zoning, the only one that means anything is a permanent one. Kilian said all zoning is temporary because it's subject to change. The key issue here is not what the property is zoned, but what kind of development is allowed by the 1993 General Plan. If Council wants to consider something that involves no development on the property, at the very least October 2, 1995 Cupertino City Council Page 5 they would have to seek an amendment to the General Plan. Council was aware in 1983 that there had been a transfer of development. Scott Ward, representing the applicant, Classic Communities, encouraged Council to approve the zoning, and to the extent that they are able, the use permit for the proposed project of 24 homes. With respect to the merits of the project, he said they are completing their response to the Commission's request for modifications to the plan. He said that whatever happened in regard to the property before adoption of the 1993 General Plan is moot. The General Plan is the controlling authority and clearly provides for this type of use, not open space or other recreational use. Mr. Ward said they agree with Kilian that the approved use for the property is commercial/office/residential and any other use would require an amendment to the General Plan. Residential is the least intensive use. He said the Park and Recreation Element of the General Plan does not acknowledge the site at all. Mr. Ward complimented staff on their analysis of the record of the proceedings regarding the parcel and said they had spent some time reviewing the information. Mr. Ward said that with the proposed modifications, this project will conform with both the intent and the letter of the Heart of the City plan. Farokh DeBoo, 10257 Nile Drive, said he was responding to comments made by himself and his neighbors and was turning in about 100 signatures of those opposing the application. He said it is not clear whether they should be considering this property for rezoning or a use permit prior to the Stevens Creek Specific Plan being resolved. He thought that the Planning Commission was going to review the project from scratch but they had only reviewed it for its architectural merit. He reminded Council that the Commission had recommended denial of the project. He referred to a letter he had submitted, supported by his neighbors, pointing out some of the issues. When the 120 unit complex came up for Planning and Council review, he and some of his neighbors supported it, both for the needed housing in the area and the below-market rate (BMR) units that would be provided. They also felt that areas like the triangle should have lower or no density, and they feel the City Center area is getting overdeveloped. Many neighbors moved into the area believing the triangle would be a park. He said there have been changes, but they stand by their original open space designation and would like Council to consider the merits of the property being open space. They would like the application to go back for consideration of the Heart of the City and the Stevens Creek Specific Plan in its entirety before this specific plot of land can be considered for rezoning and use permit. Gary Pruitt said he represented the Carpenters' Union and the Central Califomia Council of Carpenters which want the project to be built. He reminded Council that they had worked for and supported Measure T, the open space initiative. He said this property would be an excellent place to put the proposed project. October 2, 1995 Cupertino City Council Page 6 John Bayer, 10233 Danube Drive, said when he moved there he saw a plan showing the open space and he assumed that negotiations for the original city center project were to decide the best thing to do because Cupertino doesn't have a downtown. The City Center was supposed to be the centerpiece for the City of Cupertino and he thought the decision was made to transfer those rights from that piece of property and put it all on one side so the towers could be built. He said it seems strange that this property is coming up and the developer doesn't even own the property, but only has an option to buy. He said he was disappointed that the Council is giving up on the centerpiece for the new buzzword, Heart of the City. If Council does allow the development he urged that they at least negotiate and get something good, maybe 2 to 5 houses and the rest open space. Albert Hoffman, 10209 Nile, pointed out that the notices did not include the use pemfit hearing. At the last council meeting, without public input, it was sent back to the Planning Commission. Mr. Hoffman said he thought their results should be completely ignored because of the lack of public input. He hoped Commission input would have some weight with Council and he didn't think the Parks and Recreation Commission had looked at the whole area in terms of a park. He said the towers bother a lot of neighbors. He didn't think the "shell game" of transferring development rights was right and he thought that was why the Planning Commission took a negative position on this. Many people think the 1993 General Plan says go ahead and build, but it really says that the area should have a certain development potential. It's up to the City Council to consider what is going on with the neighborhood and decide if the best potential is what is before them tonight. Normally, he would believe in the property owner's right to develop the property as he sees fit, but he didn't think the City would be wise in choosing this lower density since it is a central property in Cupertino. David Townsley, Danube Drive, said he was in favor of more small parks in the area. He said he often walks to work, and he feels Cupertino is a special place to live, but he will continue to live here only as long as the density has not gotten out of control. The problems in the area lead him to believe that things are getting out of control. He said developer renderings and City staff reports are consistent that the 2.4 acre parcel was planned for open space in 1983. He expressed concern that the developer and City officials may be trying to take away what little open space remains in this highly developed area. It is still clear that the designation for this space is grass and trees. The amphitheater was originally intended for public use but is now private and can be sold off in the future by the developer. People who live in the City Center area have contributed millions of dollars in park fees but have no park in the area. He said it is hard to imagine an area more in need of some park and open space. There are enough plans for development and there is already a traffic problem. He requested that City officials keep the commitment to responsible controlled growth and recognize that the original plans should be upheld. October 2, 1995 Cupertino City Council Page 7 Dr. Francesca Venning, 10166 Danube Drive, urged Council to deny the application for a use permit for residential development and to redesignate the 2.41 acres as open space per the 1983 General Plan. She said Council needed to consider what is in the best interest for the City Center area and those who live there. She said there is a variety of housing options available in the area. She also said it was Council's obligation to represent the wishes and needs of their constituency to the best of their ability. Over the years when the issue of building on this parcel has come before them, the neighbors have made it very clear that they do not want residential or commercial development on this site. Many of them had bought their townhomes and condos with the 1983 General Plan firmly in mind. She realized that not all of the current Council were serving when the designation was changed but Council has an obligation to rebuild the City Center neighbors' trust in Council and to reaffirm that their voices and wishes will be heard over those of land developers. Randy Schwartz, 10233 Nile Drive, said the biggest issue is that Prometheus transferred the rights to be able to increase the return on their investment in the towers. When they did that they gave up the rights to develop on that land and it was designated as open space. He said there is a tremendous amount of density and to add more capacity is counter to what is needed in the area. He described the traffic situation and said the 30-foot wall is unacceptable for those who live there now. He described difficulties they have had with the development. Mark Lazzarini, 675 N. First Street, San Jose, Executive Director of the Building Industry Association of Northern California, said he was there to follow up on a letter sent on Sept. 27 expressing concerns that the City would choose to ignore a General Plan designation as having the overriding land use authority for this or any site. He said failure to do so would have enormous implications that would affect business and land use decisions statewide. He referred to a 1995 report from the Santa Clara Valley Manufacturing Group entitled, "Creating Quality Neighborhoods, Housing Solutions for Silicon Valley," and said this project addresses many of the concerns raised in the report. He asked that Council expedite approval of the application. Sally Larson, 10220 Danube Drive, said she was speaking to the emotional issue. She said they were lured to the area to fulfill the ideal of living close to the workplace, but the proposed project would create a ghetto. The area is not the dream that was shown on the artist's renderings when she bought the property, traffic is severely limited, and they are surrounded by an urban area that is not what they were promised. She said her land has devalued by $80,000 because of the poor construction and she is trapped. She asked them to think about what they are doing for those who live there now and for those who may be drawn to the 2.4 acre parcel which will not be the dream they will see in the artist's renderings. October 2, 1995 Cupertino City Council Page 8 Scott Ward, representing the applicant, said they have no affiliation with the owner of the property other than a single option agreement with this particular piece of property. He referred to a document sent to them by the owners of the property regarding representations made about the future use of the property as far back as 1984. The document was transmitted to the developers of the adjacent properties. He did not know if that information had been passed along to prospective buyers. He pointed out that they are providing a type of housing that does not exist in the town center area. He said the proposed buildings would be 25 ft. high and they will not build walls higher than allowed by ordinance. Koppel thought it was important to focus on the most recent General Plan and asked staff for clarification on the park issue. Parks and Recreation Director Steve Dowling said the Commission has not taken a position on this particular parcel. In the 1993 General Plan update, they discussed this and other similar properties in town and the existing General Plan said that no park shall be under 3.5 acres. He described the priorities considered in providing parks for an area. This particular parcel is in a neighborhood that has Wilson Park (10.4 acres) and Eaton School (5.98 acres) as open space. Under those priorities the triangle would not even qualify as a low priority for acquisition. The Commission did want flexibility to review any parcel based on the priorities. Cowan said both the Parks and Recreation and Planning Commissions recommended that there be no public acquisition of open space in the corridor which includes the triangle site. Burnett said this is a basic issue of trust as to what was promised back in 1983. The development there right now makes this the most densely developed area in the City and more is coming in which will approach an overall FAR of 1.0 or more. The highest now is .37. He said all the current residents have lost, and putting in this kind of density is bad for the community. If the General Plan made the change, he would favor amending it and would oppose the zoning change. Sorensen said she had heard about this triangle since she came on the Council six years ago. She agreed with the City Attorney's advice that they should be going with what development is allowed by the most recent General Plan. The minutes of previous meetings on the parcel indicate a great deal of public input. Bautista said the facts are ambiguous. He referred to a letter from the City dated July 26, 1983 which was apparently uncontested until now. He spoke about the history of transferring development rights within the city. His concern was the precedent being set by allowing development rights to be transferred and then finding another mechanism whereby development can occur. He felt that unless the developer is allowed to obtain density through a subsequent transfer, the parcel should remain without the additional density. He believed that in 1983 it was clear that the triangle was to remain open space per the transfer of October 2, 1995 Cupertino City Council Page 9 development rights and the City's letter, but the General Plan is ambiguous. The triangle parcel is not crosshatched in the drawing shown and is not included in the 300 units to be included in the General Plan. He said that while there are Council minutes that go to the issue of what height limits there should be on the triangle parcel, the issue of whether or not there should be development on the parcel was never discussed. It was not clear to him that they can say one way or the other what the Council in 1993 intended to do. Regardless of the facts, he had four points: 1. There is high degree of density already in the Town Center area; 2. Some of the open space in the neighborhood is private so there is really no open space for the apartments yet to be built and some of the adjoining residences; 3. There is a plan and policy in the Stevens Creek Specific Plan and an overriding policy which Dowling recited that gives Council the authority to look at parcels that are less than 3 acres and consider them for additional open space; and 4. When all considerations are balanced there is very little open space remaining in the entire area and Council should seek public input as to whether the General Plan should be amended or clarified. Overall he said he would vote in favor of conducting a public hearing to look at the triangle parcel and decide what the General Plan says and what we ought to do as a city given the fact that there has been a lot of development in the area, Council has recently transferred additional development rights, densities are extremely high and there will soon be 120 additional units in the area with no public open space to accommodate those residents. Kilian said he believed that the fact that the drawing didn't show residential units in the triangle area was an error as was indicated by Cowan. Other maps clearly show that lower heights would be allowed on that site. He said he thought Bautista would determine from listening to the tapes that Council did in fact talk about the development of that parcel. He said he thinks the facts are fairly clear that in 1993 Council considered that area for potential development. Council is free to change that by asking for a General Plan amendment, and recommended that any public hearing concerning the triangle piece that talks about not allowing development there would be in the context of a General Plan amendment. He said they could also put a moratorium on development there until it is finally determined if the triangle parcel will be acquired by the City or what else it will be used for. City Manager Brown said there is no question in his mind that the City Council members at that time very clearly anticipated some kind of development on this parcel. He also said that Bautista's claim that there is no open space for the area does not comply with what Dowling had just presented. Dowling added that areas such as the soccer field, the amphitheater and the library plaza are not included in their formula in considering public open space. Bautista said his point was that there is an overriding General Plan policy that says they can selectively purchase sites in areas. October 2, 1995 Cupertino City Council Page 10 Dean said there is a document that says they have a right to build there. The issue is they have a right to use the land because the documem says so. Kilian said the solution is still in Council's hands. They have a right to change previous decisions now. He said this is a separate parcel and there are strictures in place now that weren't in 1983 regarding government using its zoning powers in ways that are unreasonable. Bautista said the question is what are the consequences in terms of fiscal impact but Council doesn't have the information now. Brown said the owner of the property said in 1992 they were willing to sell it to the City if they wanted it for open space and park. At that time Council did not deem this a priority for park and open space. This purchase is not in the capital financing program at this time. Koppel stated that Cupertino has more parks and open space per capita than any other of the 15 cities in the County, with the exception of Palo Alto, and people in the area have more open space than some other residents. She said there are all kinds of needs in the community and she felt Council has done a pretty fair job in taking care of parks and open space. Bautista said that to the extent that the City would need to give something up for this parcel, Council has approved in concept a transfer of development rights for the Apple World Headquarters building and there is some joint ownership. Therefore, he wouldn't want to role out the possibility of some kind of agreement where in return for an actual project for the Apple site the property owners would be willing to give up a certain part of the economic value of the triangle site. Brown said that when the owners indicated they would sell the parcel they made it clear that it would be for value as a developable parcel. Bautista did not think Council can conclude tonight that there would be a fiscal impact on the City because the applicant can enter into an agreement that involves the other parcel. Burnett talked about the concept of private open space. If there is to be such a thing in the community there ought to be an effort to preserve it. He said he hoped the open space on the comer can be kept private open space. Koppel moved that the zoning be approved at 8-15 dwelling units per acre and that a Negative Declaration be approved. Cowan pointed out the ordinance in the packet that refers to low to medium density, which is 5-10 in the General Plan. The specific plan talked about 8-15. Sorensen moved to amend the motion to October 2, 1995 Cupertino City Council Page 11 specify 5-10 dwelling units per gross acre. Koppel seconded the amendment. The amended motion was carried 3-2, Burnett and Bautista dissenting. The Deputy City Clerk read the ordinance by title. Koppel moved to read ordinance 1701 by title only and that the reading would constitute the first reading thereof. The motion carried 4-1 with Bautista dissenting. Sorensen requested that the City Clerk add the specific density (5-10 dwelling units per gross acre) following the words "low density" wherever they appear in the ordinance. RECESS: 8:37-8:55 p.m. 19. Application No.(s) 1-DA-95 and 20-EA-95, Hewlett-Packard - Public hearing to consider the approval of a Development Agreement to permit Hewlett-Packard or successor in interest, to construct new buildings and develop a master site plan based upon the entitlements contained in the City of Cupertino General Plan; site contains approximately 95 acres and is bounded by Homestead Road, Tantau Avenue, Pruneridge Avenue, and Wolfe Road Environmental Determination: The Planning Commission recommends the granting of a negative declaration. Recommended for approval. (a) First reading of Ordinance No. 1702: "An Ordinance of the City Council of the City of Cupertino Approving Application 1-DA-95, Development Agreement Between the City of Cupertino and Hewlett-Packard, Inc." Cowan went over the outline shown in the overhead and presented the staff report. He said Burnett had raised a point regarding use of the term Tier One. Tier One has to do with a method of allowing additional square footage if there is a Transportation Demand Management (TDM) program, etc. It's part of the Transportation Element of the General Plan. Cowan read proposed changes to the development agreement which would be used instead of the term Tier One, which has been assumed to mean base level entitlements. Kilian clarified for Council what the changes mean. This development agreement establishes a certain range of development which is the existing General Plan land use element. It does not establish what was previously known as the second tier. Although it's mentioned in the General Plan, this agreement does not guarantee H-P the 2 million square feet of development. However, it does not preclude them from applying later on, if there is still a Tier Two, if Council wishes to give it. He said the use of the term Tier One was technically inaccurate in this context because it refers to traffic. The developer is in agreement with the change. Kilian agreed with the Planning Commission recommendation that the portion of the table in Exhibit C labeled Tier Two should be removed. October 2, 1995 Cupertino City Council Page 12 Cowan showed the chart in the Circulation Element that he and Burnett had discussed. Burnett said he thinks the General Plan should be amended to call trip discount a growth bonus since that's what it really is. Director of Public Works Viskovich talked about how the original square footage numbers in the General Plan were determined. Bumett said he would like to agendize a discussion of modifying the General Plan to make it consistent with the way the City is now doing development. Cowan said that redrafiing the Development Intensity Manual will be considered soon by the Planning Commission and perhaps Bumett's concerns could be addressed at that time. Cowan completed the staff report and the chart labeled "Hewlett-Packard Development Agreement Discussion Points." Marcel Koren, Bay Area Real Estate Manager for Hewlett-Packard, 3000 Hanover Street, Palo Alto, said the development agreement is to provide stability in land use regulations and will benefit both the City and the property owner. It's purpose is to enable Cupertino and H-P to use the present General Plan and regulations as a long term framework of policies which will control innovation and buildout of the H-P campus in Cupertino. The General Plan was adopted in 1993 after intense public participation and was intended to be a 20-year basis for office/residential growth policy. This agreement protects Cupertino's basic planning consensus from uncertainty which may come along over the next several years. He said when H-P comes back with building plans Council will retain all discretion to regulate the size, location, height, design of the new building which they have now. For the purpose of applying land use policies the 1993 General Plan will be used. For financial purposes all fees payable at the time of their future use permit application will be payable at the future rates so no one else will subsidize H-P's buildouts. Mr. Koren spoke of the assurances both the City and H-P will receive under the agreement. He said they agreed with proposed changes to the agreement. He said it is only H-P's need for more than average planning stability that justifies the agreement. He said they understand the need for advance payment of fees for the first building. The exhibits and points noted in the staff report are all acceptable. Mr. Koren said they have no intention of transferring properties at this time, but economics can change and if needed they would like to reserve the right to transfer the property to other people with the same right. Bumett talked about the benefits to the City and expressed concern regarding Tier Two growth. He saw no pressing need for the agreement and felt that approving it would set a bad precedent. Koppel said this is not setting a precedent and she was not willing to eliminate the Tier Two. Koppel moved to grant a Negative Declarative and Sorensen seconded. October 2, 1995 Cupertino City Council Page 13 Bautista said that the agreement does not lock in Tier Two. H-P has been a long- standing corporate citizen of the City and needs to be able to plan on a long term basis. He said the agreement is a good arrangement for both parties. The motion to approve a Negative Declaration carried 5-0. Koppel moved to approve Application 1-DA-95 per Planning Commission Res. 4642. Bautista moved to amend the motion to include the following amendments to the development agreement: Page 2: paragraph D should read, "Owner has requested this Agreement in order to vest the land use policies established·.." Page 2: paragraph D, add this sentence: "Notwithstanding the above described, the "additional mitigated development" referenced in Policy 2-3 (footnote **) of 2,000,000 square feet is ll9~ vested pursuant to this agreement or otherwise. Page 4: paragraph 1.1, Development Plan, second sentence shall read, ".. · provided, however, that future implementation of the Project will be subject to other discretionary approvals by City which would establish the precise density and intensity of use, the precise heights, locations, sizes of buildings, and traffic mitigation measures." Page 5: paragraph 1.2, Present Right to Develop, delete "Tier One" from the first sentence· Replace the words "The 'Tier One'" with the word "These" at the beginning of the second sentence· Add to the second sentence, "but excluding the vesting of any portion of the 2,000,000 square feet of additional mitigated development as referenced in Policy 2- 3 (footnote **)." Page 6: Add Section 1.5, Advance Payment of Construction Taxes and Fees, to read as follows: "In order to secure for City the economic benefits of new construction on the Property as early as is practicable, Owner shall pay to City, with thirty (30) days after the Effective Date, the sum ("Advance Payment") of $220,000. The Advance Payment shall be nonrefundable, and shall be applied as a non-interest bearing deposit against the total fees, taxes and other payments due from Owner to City upon Owner's applications ("Permit Applications") to demolish or construct new buildings on the Property. If the Advance Payment is less than the total fees due upon Owner's Permit Applications, the amount of the Advance Payment shall be credited against the total payment due. If the Advance Payment is more than the fees due upon Owner's initial Pemfit Applications, the remainder of the Advance Payment shall be credited against the amounts due upon Owner's subsequent Permit Applications." October 2, 1995 Cupertino City Council Page 14 Exhibit C: Replace heading "Tier 1" with "Development Allocation Pursuant to General Plan Policy 2-3" and delete entire lower portion of table labeled "Tier 2." Label exhibits as illustrative examples. Sorensen seconded and the motion carried 4-1 with Bumett dissenting. The Deputy City Clerk read the title of Ordinance No. 1702. Sorensen moved to read Ordinance 1702 by title only and that the Deputy City Clerk's reading would constitute the first reading thereof. Koppel seconded and the motion carried 5-0. PLANNING APPLICATIONS - None. UNFINISHED BUSINESS 20. Discussion regarding a change to the meeting date related to Route 85 noise levels. Following discussion, Council agreed to meet at 7:00 p.m. on Wednesday, November 15 in Council Chamber. NEW BUSINESS 21. Review of bids and award of contract for Riviera Road Slide Repair, Project 96- 101. Director of Public Works Viskovich presented the staff report and answered questions regarding reimbursement. Koppel moved and Sorensen seconded to award the project to Lowery Engineering for its low bid of $109,930 and to authorize a 5% contingency of $5,500 for a total project of $115,430. The motion carried 5-0. 22. Review of bids and award of contract for Blackberry Farm Picnic Grounds Swimming Pool Renovation, Project 95-101. Director of Public Works Viskovich presented the staff report. Koppel moved and Sorensen seconded to award the project, including the waterslide, to Western Waterfeatures in the amount of $459,799 and to approve contingency for a total project of the budget amount of $475,000 which is a 3.3% contingency. The motion carried 5-0. 23. Approval of historical plaque design for Miller House on Phil Lane. October 2, 1995 Cupertino City Council Page 15 Director of Community Development Cowan presented the staff report. Koppel moved and Sorensen seconded to approve the design and procedure as recommended. The motion carried 5-0. Bautista suggested using complete sentences for the text on the plaque. WRITTEN COMMUNICATIONS - None. ORDINANCES 24. Second reading and enactment of Ordinance No. 1694: "An Ordinance of the City Council of the City of Cupertino Amending Section 1 of Ordinance No. 2 By Rezoning Approximately 1.97 Acres from RHS to RHS-10, Located at 1545 Upland Way and 11571 Upland Way, Application No. 6-Z-95." The Deputy City Clerk read the ordinance by title. Koppel moved and Bautista seconded to read Ordinance 1694 by title only and that the Deputy City Clerk's reading would constitute the second reading thereof. The motion carried 5-0. Koppel moved and Sorensen seconded to enact the ordinance. The motion carried 5-0. 25. Second reading and enactment Of Ordinance No. 1699: "An Ordinance of the City Council Of The City Of Cupertino Adopting The Stevens Creek Boulevard Specific Plan (The Heart Of The City) Which Encompasses Incorporated and Unincorporated Property On Or Adjacent to Stevens Creek Boulevard Between Highway 85 and the Eastern City Limits (Application No. 81,152)." Director of Community Development Cowan presented the staff report. He said based on the earlier vote on the rezoning of the triangle parcel (Item 18) he assumed Council wanted to include that parcel in the ordinance at 5-10 dwelling units per gross acre. Burnett referred to the height limitation of three floors or 36 feet and said he preferred having the height specific. Council members agreed. Bumett asked staff to check the wording in the ordinance regarding fences and to make it clear that a hedge was required along the public right of way. Regarding signage in the right of way, Cowan said staff would be coming back with cleanup language. Burnett said he would vote against the ordinance because it includes the Apple World Headquarters Building which transfers in another 50,000 sq. fi. of growth which is above that considered in the General Plan. He said he doesn't like the fact that the building would be adjacent to apartments and higher than they are. The Deputy City Clerk read Ordinance 1699 by title. Koppel moved and Sorensen seconded to read the ordinance by title only and that the Deputy City October 2, 1995 Cupertino City Council Page 16 Clerk's reading would constitute the second reading thereof. The motion carried 4-1 with Burnett dissenting. Koppel moved and Sorensen seconded to enact Ordinance 1699. The motion carried 4-1 with Bumett dissenting. RESOLUTIONS - None. STAFF REPORTS - None. COUNCIL REPORTS Koppel talked about the Supreme Court decision regarding Measure A and said staff has been directed to come back with options as to how this might be pursued. Kilian said he had provided Council with a complete opinion of the Supreme Court and it does affect cities. He said it was unlikely to affect taxes and fees already in place in Cupertino because the statute of limitations has run out on them. Koppel asked if anyone was interested in serving on the Santa Clara County Cities Association Hazardous Materials Advisory Committee until June 30, 1998. Sorensen said she would like to be reappointed to the Emergency Medical Care Committee. Koppel talked about representation on the West Valley Cities Congestion Management Program. Council agreed with her recommendation, which was to have the representative of the West Valley Cities serve a long enough term so they can become chair of the board. Koppel reported that CalTrans has agreed to remove the HOV lane on 280 northbound from 85 to Magdalena and to put in an additional exit lane onto Foothill. She said they would be working on a policy for the "living logo" program. Koppel reported on the 40th anniversary celebration coming up this weekend. Burnett said all the flood control advisory committees will be meeting to go over the results of a survey as to whether people would support a tax measure to continue flood control activities. CLOSED SESSION Kilian announced that Council would meet in closed session regarding labor negotiations pursuant to Government Code Section 54957.6 for a conference with the labor negotiator regarding a salary survey. October 2, 1995 Cupertino City Council Page 17 At 10:02 p.m. Council adjourned to a closed session. At 10:15 p.m. they reconvened in Council Chamber and the City Attorney reported that no action had been taken in closed session. At 10:16 p.m. the meeting was adjourned to 6:00 p.m., Monday, October 16 for a joint meeting with the Affordable Housing Committee prior to the regular meeting at 6:45 p.m. Rrol~erta Wolfe'- Deputy City Clerk