CC 11-02-2021 Item No. 12 Cupertino Municipal Water System - Amended A - Draft Resolution - RedlineAttachment A
RESOLUTION NO. 21‐XXX
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING A FIRST AMENDMENT TO THE AMENDED AND RESTATED
AGREEMENT FOR LEASE OF REAL PROPERTY (WATER SYSTEM) WITH
SAN JOSE WATER COMPANY
WHEREAS, the production, treatment, and distribution of potable water
within the Cupertino Municipal Water System (“Water System”) area is
determined and declared to be a health, sanitary and safety measure necessary for
the promotion, protection and preservation of the health, safety and general
welfare of the people of the City of Cupertino; and
WHEREAS, the City Council of the City of Cupertino enacted provisions of
the Municipal Code, in part, to satisfy applicable potable water safety and health
requirements; and
WHEREAS, the City Council adopted on September 2, 1997, by Council
Resolution 9950 the original Agreement for Lease of Real Property (Water System);
and
WHEREAS, the City Council adopted on December 17, 2019, by Council
Resolution 19‐145 the Amended and Restated Agreement for Lease of Real
Property (Water System) (“Amended Lease”); and
WHEREAS, pursuant to the Amended Lease all operations of the Water
System are provided by a private water utility, lessee San Jose Water Company,
pursuant to the terms of the Amended Lease and Cupertino Municipal Code; and
WHEREAS, pursuant to the terms of the Amended Lease, the term
Amended Lease will expire on September 30, 2022 (“Term”); and
WHEREAS, the City wishes to ensure it has sufficient time to pursue a new
lease agreement pursuant to Section 10061 of the Public Utilities Code and to
potentially transition to a new lessee or to an alternate form of operation of the
Water System before the Term expires; and
WHEREAS, pursuant to the terms of the First Amendment of the Amended
Lease, the City at its sole discretion may either choose to not extend the Term, or
to extend the Term by six monthsone, two years or three years; and
Resolution No. __________________ Attachment A
WHEREAS, pursuant to the terms of the First Amendment of the Amended
Lease, no other terms are changed except that in the event the Term is extended,
there will be a commensurate extension of lessee’s obligations for Capital
Improvement Funds, with reference to Section 7 of the Amended Lease; and
WHEREAS, the City has determined that the First Amendment of the
Amended Lease is not a project under CEQA because it has no potential for
resulting in a physical change in the environment, but even if it were, it would be
exempt from environmental review pursuant to the exemption in 14 Cal. Code
Regs. §15601(b)(3) in that it can be seen with certainty that there is no possibility
that this action will have a significant effect on the environment because approval
of the First Amendment to the Amended Lease merely provides a mechanism for
extending the Term of the Lease with a commensurate extension of the
expenditure requirements for Capital Improvements Funds, which are technical
changes concerning the general administration of the lease of property and does
not commit the City to a definite course of action, so this is not an activity subject
to CEQA. Environmental review will be conducted as necessary for any changes
to the water system that may be agreed upon in the future; and
WHEREAS, the City has further determined that the First Amendment of
the Amended Lease is exempt from CEQA under CEQA Guidelines section 15301,
which exempts from CEQA review any project that “consists of the operation,
repair, maintenance, permitting, leasing, licensing, or minor alteration of existing
public or private structures, facilities, mechanical equipment, or topographical
features, involving negligible or no expansion of existing or former use”; and
WHEREAS, the City Council, using its independent judgment, before
taking action on this Resolution, determines that the action is not a project and/or
exempt from CEQA for the reasons stated above; and
WHEREAS, the public was notified of a public hearing scheduled on the
First Amendment to the Amended Lease by published notice in the Cupertino
Courier beginning two weeks prior to the public hearing; and
WHEREAS, a public hearing notice regarding the First Amendment to the
Amended Lease was also posted on the City’s website on October 22, 2021; and
Resolution No. __________________ Attachment A
WHEREAS, all documentation to support consideration of this First
Amendment of the Amended Lease was placed on file with the City Clerk for
public inspection and review; and
WHEREAS, at its regular meeting on November 2, 2021, the City Council
held a duly noticed public hearing to consider the First Amendment to the
Amended Lease; and
WHEREAS, at the public hearing, interested persons had the opportunity
to testify regarding the First Amendment of the Amended Lease; and
WHEREAS, the City Council of the City of Cupertino finds and determines
as follows:
1. The above recitals are true and correct and material to the adoption
of this Resolution.
2. Based on consideration of the First Amendment of the Amended
Lease between the City and San Jose Water Company, the public’s written
comments and testimony received at this public hearing, and the staff report, and
information presented at the hearing, the City Council hereby determines that the
Amended and Restated Agreement for Lease of Real Property (Water System)
adopted by Council Resolution 19‐145 on December 17, 2019, should be amended
as set forth in the First Amendment thereto.
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby:
1. Approve the First Amendment to Amended and Restated
Agreement for Lease of Real Property (Water System) with San Jose Water
Company.
2. Authorize the City Manager to execute the First Amendment.
3. Authorize the City Manager or his/her designee to take all action as
may be reasonably necessary to effectuate the First Amendment.
BE IT FURTHER RESOLVED that this Resolution is not a project under the
requirements of the California Quality Act of 1970, together with related State
CEQA Guidelines (collectively, “CEQA”) because it has no potential for resulting
in physical change in the environment, either directly or ultimately. In the event
that this Ordinance is found to be a project under CEQA, it is subject to the CEQA
exemption contained in CEQA Guidelines section 15061(b)(3) because it can be
seen with certainty to have no possibility of a significant effect on the environment.
Resolution No. __________________ Attachment A
CEQA applies only to projects which have the potential of causing a significant
effect on the environment. Where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the
environment, the activity is not subject to CEQA. In this circumstance, the First
Amendment to the Amended and Restated Agreement for Lease of Real Property
(Water System) would have no or only a de minimis impact on the environment.
The foregoing determination is made by the City Council in its independent
judgment.
BE IT FURTHER RESOLVED that this Resolution is exempt from CEQA
under CEQA Guidelines section 15301 because it consists of the leasing of existing
public facilities.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
the City of Cupertino this 2nd day of November, 2021, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date