Cupertino City Council
July 7, 2022

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference Thursday, July 7, 2022
5:00 PM
Special Meeting Non-Televised Closed Session (5:00) and Televised Open Session (Moved from July 5) (6:45) *Due to technical issues being resolved with vendor-based software, formatting is irregular.

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the following ways:
1) Appear in person at Cupertino Community Hall. Members of the audience who address the City Council must come to the lectern/microphone, and are requested to complete a Speaker Card and identify themselves. Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments. 2) E-mail comments for closed session or open session by 4:00 p.m. on Thursday, July 7 to the Council at [email protected]. These e-mail comments will also be forwarded to Councilmembers by the City Clerk’s office before the meeting and posted to the City’s website after the meeting.
3) E-mail comments for closed session and open session during the times for public comment during the meeting to the City Clerk at [email protected]. The City Clerk will read the emails into the record, and display any attachments on the screen, for up to three minutes (subject to the Mayor’s discretion to shorten time for public comments).

Members of the public that wish to share a document must email [email protected] prior to speaking.

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Members of the public may provide oral public comments pertaining to the agenda during the open session prior to the closed session teleconference meeting or in open session teleconference meeting or in as follows:

Oral public comments will be accepted during the meeting. Comments may be made during “oral communications” for matters not on the agenda, and during the public comment period for each agenda item.

Teleconferencing Instructions

CLOSED SESSION
Members of the public may provide oral public comments in open session prior to the closed session teleconference meeting as follows:

To address the City Council, click on the link below to register in advance and access the meeting:

Online Link for Closed Session
Please click the link below to join the meeting:
https://cityofcupertino.zoom.us/j/96387545529
Phone
Dial 669-900-6833 and enter Meeting ID: 963 8754 5529 (Type *9 to raise hand to speak)

OPEN SESSION
To address the City Council, click on the link below to register in advance and access the meeting:

Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_0Jp9Ag7gSzmCwLOc8C42iw Phone
Dial: 669-900-6833 and enter Webinar ID: 919 6479 6887 (Type *9 to raise hand to speak, *6 to unmute yourself). Unregistered participants will be called on by the last four digits of their phone number.

Or an H.323/SIP room system:

H.323:
162.255.37.11 (US West)
162.255.36.11 (US East)

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Meeting ID: 919 6479 6887
SIP: [email protected]
After registering, you will receive a confirmation email containing information about joining the webinar.

Please read the following instructions carefully:

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

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

3. Prior to the beginning of Closed Session and after Roll Call, members of the public will have an opportunity to speak. If you wish to speak, click on "raise hand," or, if you are calling in, press *9. Speakers will be notified shortly before they are called to speak.

4. When called, please limit your remarks to the time allotted and the specific agenda topic.

In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this teleconference City Council meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the Council meeting to arrange for assistance.

In addition, upon request, in advance, by a person with a disability, City Council meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format.

NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby called for Thursday, July 07, 2022, commencing at 5:00 p.m. for a Closed Session via teleconference and an Open Session at 6:45 p.m. in Community Hall Council Chamber, 10350 Torre Avenue, Cupertino, California 95014 and via teleconference. Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, “Special Meeting."

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SPECIAL MEETING
ROLL CALL - 5:00 PM
CLOSED SESSION (Teleconference Meeting)

1. Subject: Conference with Labor Negotiators pursuant to Government Code § 54957.6 (Kristina Alfaro and Christopher Boucher)
RECESS
OPEN SESSION (Community Hall Council Chamber, 10350 Torre Avenue and via Teleconference)
PLEDGE OF ALLEGIANCE - 6:45 PM

ROLL CALL
CEREMONIAL MATTERS AND PRESENTATIONS - None

POSTPONEMENTS AND ORDERS OF THE DAY

ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Council on any matter within the jurisdiction of the Council and not on the agenda. The total time for Oral Communications will ordinarily be limited to one hour. Individual speakers are limited to three (3) minutes. As necessary, the Chair may further limit the time allowed to individual speakers, or reschedule remaining comments to the end of the meeting on a first come first heard basis, with priority given to students. In most cases, State law will prohibit the Council from discussing or making any decisions with respect to a matter not listed on the agenda. A councilmember may, however, briefly respond to statements made or questions posed by speakers. A councilmember may also ask a question for clarification, provide a reference for factual information, request staff to report back concerning a matter, or request that an item be added to a future City Council agenda in response to public comment.

REPORTS BY COUNCIL AND STAFF

2. Subject: Brief reports on councilmember activities and brief announcements Recommended Action: Receive brief reports on councilmember activities and brief announcements

3. Subject: Report on Committee assignments
Recommended Action: Report on Committee assignments

4. Subject: Report on Subcommittee assignments

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Recommended Action: Report on Subcommittee assignments

5. Subject: City Manager update
Recommended Action: Receive City Manager update on City business CONSENT CALENDAR (Items 6-12)
Unless there are separate discussions and/or actions requested by council, staff or a member of the public, it is requested that items under the Consent Calendar be acted on simultaneously.

6. Subject: Consider approval of the June 21 City Council minutes Recommended Action: Approve the June 21 City Council minutes A - Draft Minutes

7. Subject: Consider approval of the June 24 City Council minutes Recommended Action: Approve the June 24 City Council minutes A - Draft Minutes

8. Subject: Consider approval of the June 26 City Council minutes Recommended Action: Approve the June 26 City Council minutes A - Draft Minutes

9. Subject: Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period July 7, 2022 through August 6, 2022 pursuant to the Brown Act, as amended by AB 361 Recommended Action: Adopt Resolution No. 22-078 authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period July 7, 2022 through August 6, 2022 pursuant to the Brown Act, as amended by AB 361 Staff Report
A - Draft Resolution
B – Adopted Resolution No. 22-061
C – Health Officer Recommendation Regarding Public Governmental Meetings

10. Subject: Consider authorizing the City Manager, or Designee, to execute a one-year agreement with Crowe LLP for auditor services for a total contract amount of $148,600 Recommended Action: 1. Authorize the City Manager, or Designee, to execute a one-year agreement with Crowe LLP for auditor services for a total contract amount of $148,600

2. Adopt Resolution No. 22-079 approving Budget Modification #2223-219 increasing appropriations in the General Fund (100-41-405) by $43,600

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Staff Report
A - Draft Resolution
B - City of Cupertino Financial Statement Engagement Letter 2022 Draft C - City of Cupertino GANN AUP Engagement Letter 2022 Draft D - City of Cupertino Investment AUP Engagement Letter 2022 Draft E - City of Cupertino Storm Drain AUP Engagement Letter 2022 Draft

11. Subject: Consider authorization to execute a Design Professional Services Agreement between the City of Cupertino and David L. Gates and Associates (Gates) for the Memorial Park Specific Plan project.

Recommended Action: 1. Authorize the City Manager to execute a Design Professional Services Agreement between the City and David L. Gates and Associates to provide design services for the Memorial Park Specific Plan in the amount of $409,589.00;

2. Authorize the Director of Public Works to execute any necessary services or change orders, up to a contingency amount of $82,000.00 (approximately 20% of base services,) for a total appropriation of $491,589.00; and

3. Adopt Resolution No. 22-080 to approve budget modification 2223-218 transferring the existing project budget of $500,000 in appropriations from Park Dedication Fund (280-99-255) to Capital Improvement Fund (420-99-255) and increasing these appropriations in the Capital Improvement Fund (420-99-255) by $150,000 for design services and additional work by other consultants, for a total of $650,000 for the Memorial Park Specific Plan project.

Staff Report
A - Draft Contract
B - Draft Resolution

12. Subject: Consider conforming Mitigation Measure NOISE-1 for 22690 Stevens Creek Boulevard (Alan Row) and 10625 S. Foothill Boulevard (Canyon Crossing Mixed-Use Project) with noticing requirements in the Cupertino Municipal Code (CMC) Chapter

17.04. Recommended Action: That the City Council adopt the following resolutions (Attachments A & B):

1. Resolution No. 22-081 approving a modification to Mitigation Measure NOISE-1 for 22690 Stevens Creek Boulevard (Alan Row).

2. Resolution No. 22-082 approving a modification to Mitigation Measure NOISE-1 for 10625 S. Foothill Boulevard (Canyon Crossing Mixed-Use Project).

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Staff Report
A - Draft Resolution amending Mitigation Measure NOISE-1 for Alan Row B - Draft Resolution amending Mitigation Measure NOISE-1 for Canyon Crossing Mixed-Use Project C - Resolution No. 22-007 (Alan Row)
D - Alan Row IS/MND
E - Resolution No. 22-001 (Canyon Crossing)
F - Canyon Crossing IS/MND
G - Alan Row IS/MND Addendum
H - Canyon Crossing IS/MND Addendum

STUDY SESSION

13. Subject: Consider an update on drought conditions and the City of Cupertino's ongoing water conservation measures for City operations and provide input on potential further water conservation measures.

Recommended Action: Staff recommends that the City Council take the following action:

1. Receive staff presentation on continued drought conditions; and

2. Provide input to staff on implemented water conservation restrictions for City operations.

Presenter, Jimmy Tan, Assistant Director of Public Works, Operations Staff Report
A - City of Cupertino Water Conservation Restriction Measures for City Operations SECOND READING OF ORDINANCES - None
PUBLIC HEARINGS - None

ORDINANCES AND ACTION ITEMS

14. Subject: Consider conducting a first reading of an ordinance amending Municipal Code Chapter 2.84: Environmental Review Committee (continued from June 21) Recommended Action: Conduct the first reading and approve the introduction of Ordinance No. 22-2242: "An Ordinance of the City Council of the City of Cupertino amending Municipal Code Chapter 2.84: Environmental Review Committee" Presenter: Chris Jensen, City Attorney
Staff Report
A - Draft Ordinance

15. Subject: Consideration of Municipal Code amendments to the Cupertino Municipal Code, Title 2 to add Chapter 2.96 and codify the Economic Development Committee

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Recommended Action: 1. Conduct the first reading of Ordinance No. 22-2240; “An Ordinance of the City Council of the City of Cupertino Adding Chapter 2.96 of Title 2 (Administration and Personnel) to Codify the Economic Development Committee"

2. Find that the proposed actions are exempt from CEQA
Presenter: Tina Kapoor, Economic Development Manager
Staff Report
A- Draft Ordinance

16. Subject: Consider designating a voting delegate and up to two alternates to vote at the Annual Business Meeting (General Assembly) during the League of California Cities Annual Conference & Expo, September 7-9, 2022
Recommended Action: Designate a voting delegate and up to two alternates to vote at the Annual Business Meeting (General Assembly) during the League of California Cities Annual Conference & Expo, September 7-9, 202
Presenter: Kirsten Squarcia, City Clerk
Staff Report Voting delegates for League of Cities Annual Conference A - 2022 Voting Delegate Packet
ORAL COMMUNICATIONS - CONTINUED (As necessary)

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS

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

For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 94107; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

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

Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal C o d e § 2 . 0 8 . 0 9 6 . C o n t a c t t h e C i t y C l e r k ’ s o f f i c e f o r m o r e i n f o r m a t i o n o r g o t o http://www.cupertino.org/cityclerk for a reconsideration petition form.

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In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format.

Any writings or documents provided to a majority of the Cupertino City Council after publication of the packet will be made available for public inspection in the City Clerk’s Office located at City Hall, 10300 Torre Avenue, Cupertino, California 95014, during normal business hours; and in Council packet archives linked from the agenda/minutes page on the Cupertino web site.

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

2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. Do not include any personal or private information in written communications to the City that you do not wish to make public, as written communications are considered public records and will be made publicly available on the City website.

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CITY OF CUPERTINO
Agenda Item
22-11190 Agenda Date: 7/7/2022
Agenda #: 1.

Subject: Conference with Labor Negotiators pursuant to Government Code § 54957.6 (Kristina Alfaro and Christopher Boucher)
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CITY OF CUPERTINO
Agenda Item
22-11067 Agenda Date: 7/7/2022
Agenda #: 2.

Subject: Brief reports on councilmember activities and brief announcements Receive brief reports on councilmember activities and brief announcements CITY OF CUPERTINO Page 1 of 1 Printed on 7/1/2022
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CITY OF CUPERTINO
Agenda Item
22-11078 Agenda Date: 7/7/2022
Agenda #: 3.

Subject: Report on Committee assignments
Report on Committee assignments
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CITY OF CUPERTINO
Agenda Item
22-10967 Agenda Date: 7/7/2022
Agenda #: 4.

Subject: Report on Subcommittee assignments
Report on Subcommittee assignments
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CITY OF CUPERTINO
Agenda Item
22-11090 Agenda Date: 7/7/2022
Agenda #: 5.

Subject: City Manager update
Receive City Manager update on City business
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CITY OF CUPERTINO
Agenda Item
22-10494 Agenda Date: 7/7/2022
Agenda #: 6.

Subject: Consider approval of the June 21 City Council minutes Approve the June 21 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, June 21, 2022

SPECIAL MEETING
At 5:30 p.m., Vice Mayor Liang Chao called the Special City Council Meeting to order in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Vice Mayor Liang Chao and Councilmembers Kitty Moore, Hung Wei, and Jon Robert Willey. Absent: Mayor Darcy Paul. Vice Mayor Liang Chao. Councilmember Jon Robert Willey attended via teleconference.

1. Subject: Public Review Draft Climate Action Plan 2.0 Study Session Recommended Action: Provide feedback to staff on the Public Review Draft Climate Action Plan 2.0
Presenter: Andre Duurvoort, Sustainability Division Manager Written Communications for this item included a staff presentation and emails to Council.

Climate and Utilities Analyst Gilee Corral gave a presentation.

Vice Mayor Chao opened the public comment period and the following people spoke.

Jennifer Griffin supported the Climate Action Plan (CAP) study and opposed citywide parking minimums and active transportation targets.

Dashiell Leeds, representing Sierra Club Loma Prieta Chapter, supported the CAP with amendments, as referenced in a letter submitted to Council.

Peggy Griffin was concerned about water conservation, preferred trees and tree removal, and supported corrections as addressed in a letter sent to Council.

Housing Commissioner Connie Cunningham (representing self) supported the CAP with modifications to housing definitions and goals.
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Darren Chiu, representing Silicon Valley Youth Climate Action, supported the CAP and long term carbon neutrality and public and urban planting projects.

Vice Mayor Chao closed the public comment period.

Councilmembers asked questions and made comments.

Council conducted the Public Review Draft Climate Action Plan 2.0 Study Session and provided direction to staff to take Council’s comments and bring the item back for another study session.

During the Study Session, individual Councilmembers gave the following feedback:
 More information was requested about the target to increase alternative forms of transportation
 Another study session was requested before the CAP 2.0 is brought for adoption  More clarification was requested to educate the public about the connection between the CAP 2.0 and CEQA environmental review process  Several councilmembers noted that electrification of existing buildings will be a big challenge for technical and financial reasons
 More information was requested about how the building decarbonization targets were derived, especially between the residential and commercial sectors. - Support for the efforts of the Climate Action Plan update, acknowledged contribution from the Sustainability Commission
- Desire for the City to be a leader and implement the CAP policies in its own facilities
- Interest in working with Silicon Valley Clean Energy, Valley Water, and other partners through CAP implementation
At 6:44 p.m., Vice Mayor Chao adjourned the Special City Council Meeting.

ADJOURNMENT

REGULAR MEETING
At 6:45 p.m., Vice Mayor Liang Chao called the Regular City Council Meeting to order and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Vice Mayor Liang Chao and Councilmembers Kitty Moore, Hung Wei, and Jon Robert 17 CC 07-07-2022
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Willey. Absent: Mayor Darcy Paul. Vice Mayor Liang Chao. Councilmember Jon Robert Willey attended via teleconference.

CEREMONIAL MATTERS AND PRESENTATIONS – None
POSTPONEMENTS AND ORDERS OF THE DAY – None

ORAL COMMUNICATIONS
Jennifer Griffin was concerned about state density housing laws including SB 9 and 10 and coastal area zoning and loss of local control.

REPORTS BY COUNCIL AND STAFF

1. Subject: Brief reports on councilmember activities and brief announcements Recommended Action: Receive brief reports on councilmember activities and brief announcements
Council received brief reports on councilmember activities and brief announcements (Paul absent).

2. Subject: Report on Committee assignments
Recommended Action: Report on Committee assignments
Councilmembers highlighted the activities of their various committees (Paul absent).

3. Subject: Report on Subcommittee assignments
Recommended Action: Report on Subcommittee assignments
Councilmembers reported on Subcommittee assignments (Paul absent).

4. Subject: City Manager update
Recommended Action: Receive City Manager update on City business Council received the City Manager update on City business (Paul absent).

CONSENT CALENDAR (Items 5 - 17)
Wei moved and Willey seconded to approve the items on the Consent Calendar except for Items 10-15 and 17 which were pulled for discussion. Ayes: Chao, Moore, Wei, and Willey. Noes: None.

Abstain: None. Absent: Paul.
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Moore moved and Chao seconded to continue items 10-14 on the Consent Calendar to the July 7, 2022 City Council meeting. Chao made a friendly amendment to continue items 10-14 on the Consent Calendar to the July 19, 2022 Regular City Council Meeting. (Moore accepted the friendly amendment).

Final motion:

Moore moved and Chao seconded to continue items 10-14 on the Consent Calendar to the July 19, 2022 Regular City Council Meeting. Ayes: Chao, Moore, Wei, and Willey. Noes: None.

Abstain: None. Absent: Paul.

5. Subject: Consider approval of the May 31 City Council minutes Recommended Action: Approve the May 31 City Council minutes

6. Subject: Consider approval of the June 1 City Council minutes Recommended Action: Approve the June 1 City Council minutes

7. Subject: Consider approval of the June 7 City Council minutes Recommended Action: Approve the June 7 City Council minutes

8. Subject: Consider approval of the June 9 (Closed Session) City Council minutes Recommended Action: Approve the June 9 (Closed Session) City Council minutes

9. Subject: Consider approval of the June 9 (Continued from June 7) City Council minutes Recommended Action: Approve the June 9 (Continued from June 7) City Council minutes

10. Subject: Consider accepting Accounts Payable for the period ending May 2, 2022 Recommended Action: Adopt Resolution No. 22-071 accepting Accounts Payable for the period ending May 2, 2022
Written communications for this item included a Supplemental Staff Report Response to Council Inquiries.

11. Subject: Consider accepting Accounts Payable for the period ending May 9, 2022 Recommended Action: Adopt Resolution No. 22-072 accepting Accounts Payable for the period ending May 9, 2022
Written communications for this item included a Supplemental Staff Report Response to Council Inquiries.
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12. Subject: Consider accepting Accounts Payable for the period ending May 16, 2022 Recommended Action: Adopt Resolution No. 22-073 accepting Accounts Payable for the period ending May 16, 2022
Written communications for this item included a Supplemental Staff Report Response to Council Inquiries.

13. Subject: Consider accepting Accounts Payable for the period ending May 23, 2022 Recommended Action: Adopt Resolution No. 22-074 accepting Accounts Payable for the period ending May 23, 2022
Written communications for this item included a Supplemental Staff Report Response to Council Inquiries.

14. Subject: Consider accepting Accounts Payable for the period ending May 31, 2022 Recommended Action: Adopt Resolution No. 22-075 accepting Accounts Payable for the period ending May 31, 2022
Written communications for this item included a Supplemental Staff Report Response to Council Inquiries.

15. Subject: Consider authorizing the City Manager to execute a services agreement with Carahsoft to renew Accela Permitting, Licensing and Land-use Management System subscription service for the total cost of $1,261,851.26 over five years Recommended Action: Authorize the City Manager to execute a services agreement with Carahsoft to renew Accela Permitting, Licensing and Land-use Management System subscription service for the total cost of $1,261,851.26 over five years Chief Technology Officer Bill Mitchell gave a presentation.

Councilmembers asked questions and made comments.

Vice Mayor Chao opened the public comment period and the following people spoke.

Peggy Griffin asked about incorporating development agreements and verification of zoning overlays.

Vice Mayor Chao closed the public comment period.
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Wei moved and Moore seconded to authorize the City Manager to execute a services agreement with Carahsoft to renew Accela Permitting, Licensing and Land-use Management System subscription service for the total cost of $1,261,851.26 over five years. The motion carried unanimously (Paul absent).

16. Subject: Maintenance agreements for the Blackberry Farm Golf Course (Continued from June 7, 2022)
Recommended Action: Receive report on the maintenance agreements for the Blackberry Farm Golf Course.

Written communications for this item included an Updated Attachment H – BBF Golf Maintenance 2010 Project Manual and Bid Documents and an Updated Attachment K – 15-206 Professional Turf Management, Blackberry Farm Golf Course Maintenance (Original Contract and Amendments 1-5).

17. Subject: Consider authorizing the City Manager to execute a Funding Agreement between the City of Cupertino and the City of San Jose for a budget allocation of $154,079 to participate in the Stevens Creek Boulevard Vision Study, which includes a 10% contingency
Recommended Action: 1. Authorize the City Manager to execute a Funding Agreement between the City of Cupertino and City of San Jose for the Stevens Creek Corridor Vision Study; and

2. Adopt Resolution No. 22-076 approving Budget Modification #2122-191 in the amount of $154,079 for the City of Cupertino's contribution toward the Stevens Creek Corridor Vision Study, an amount that includes a 10% contingency (Attachment A) Senior Transit & Transportation Planner Chris Corrao reviewed the staff report.

Vice Mayor Chao opened the public comment period and the following people spoke.

Jennifer Griffin opposed the contribution of the funds to the City of San Jose and supported alternative uses for the funds.

Vice Mayor Chao closed the public comment period.

Moore moved and Wei seconded to:

1. Authorize the City Manager to execute a Funding Agreement between the City of Cupertino and City of San Jose for the Stevens Creek Corridor Vision Study; and

2. Adopt Resolution No. 22-076 approving Budget Modification #2122-191 in the amount of $154,079 for the City of Cupertino's contribution toward the Stevens Creek Corridor Vision Study, an amount that includes a 10% contingency The motion carried unanimously (Paul absent).
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Council recessed from 8:05 p.m. to 8:08 p.m.

SECOND READING OF ORDINANCES - None

PUBLIC HEARINGS

18. Subject: Brush Abatement Program hearing to consider objections to proposed removal of brush and order abatement of the public nuisance; and consideration of a resolution ordering abatement of potential fire hazard pursuant to Cupertino Municipal Code (Section 16.40.200) regarding Defensible Space (brush) and Resolution No. 22-055 Recommended Action: 1.) Conduct Brush Abatement Program hearing to note objections of property owners having their name on the list of properties that have been non-compliant in removing brush; and

2.) Adopt Resolution 22-077 ordering abatement of public nuisance and potential fire hazard pursuant to Cupertino Municipal Code (Section 16.40.200) regarding Defensible Space (brush) and Resolution No. 22-055 (Attachment A)
Presenter: Kirsten Squarcia, City Clerk
Written Communications for this item included a staff presentation.

City Clerk Kirsten Squarcia gave a presentation.

Vice Mayor Chao opened the public hearing and the following people spoke.

Deb and Jem Taysi, representing 21952 Lindy Lane, said that they were working with County Fire to complete the work on the property.

Vice Mayor Chao closed the public hearing.

Councilmembers asked questions and made comments.

Deputy Fire Chief Hector Estrada answered questions.

Moore moved and Wei seconded to adopt Resolution 22-077 ordering abatement of public nuisance and potential fire hazard pursuant to Cupertino Municipal Code (Section

16.40.200) regarding Defensible Space (brush) and Resolution No. 22-055. The motion carried unanimously (Paul absent).

ORDINANCES AND ACTION ITEMS

19. Subject: Consider accepting Accounts Payable for the period ending December 20, 2021 (Continued from June 7, 2022)
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Recommended Action: Adopt Resolution No. 22-015 accepting Accounts Payable for the period ending December 20, 2021
Presenter: Tina Kapoor, Economic Development Manager
Written Communications for this item included a staff presentation and emails to Council.

Economic Development Manager Tina Kapoor gave a presentation.

Vice Mayor Chao opened the public comment period and the following people spoke.

Peggy Griffin opposed payments for “I Love Cupertino” website maintenance and subscription and supported City reimbursement and discontinuing Chamber work.

Rhoda Fry opposed approving payments for Chamber of Commerce meeting space and “I Love Cupertino” website and supported the City being reimbursed.

City Clerk Kirsten Squarcia read a letter on behalf of Rick Kitson, representing the Chamber of Commerce, regarding a correction to comments at the June 6, 2022 Council meeting.

Vice Mayor Chao closed the public comment period.

Councilmembers asked questions and made comments.

Chao moved and Willey seconded to ratify the Accounts Payable for period ending December 20, 2021 except for the installment payment for the Chamber of Commerce. The motion carried with Wei voting no (Paul absent).

20. Subject: Update on the Status of the Research from the City Council Subcommittee Meetings for the Cupertino Historical Society
Recommended Action: Receive an update on the status of the research from the City Council subcommittee meetings for the Cupertino Historical Society and provide direction on next steps
Presenter: Rachelle Sander, Assistant Director of Parks and Recreation Written Communications for this item included a staff presentation and emails to Council.

Assistant Parks and Recreation Director Rachelle Sander gave a presentation.

Vice Mayor Chao opened the public comment period and the following people spoke.

Bruce Parsons supported City assistance for the Historical Society in any way possible. 23 CC 07-07-2022
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Gilbert Wong supported Council assistance and funding for the Historical Society.

Neeraj Mathur supported the Council helping the Historical Society.

Jennifer Griffin supported a plan for the Snyder Hammond House and Stocklmeir House.

Jean Bedord supported a $50,000 annual line item in the City budget for the Historical Society. (Submitted written comments).

Sharon Blaine supported adding a line in the City budget for the Historical Society.

Vice Mayor Chao closed the public comment period.

Jennifer Furlong, Darryl Stowe, and Bill Kerr, representing the Cupertino Historical Society, gave a presentation.

Councilmembers asked questions and made comments.

Chao moved and Moore seconded to provide the following direction to staff.  Bring back an agreement for facility use of the Quinlan museum space and meeting spaces in Quinlan.
 Bring back an agreement or Memorandum of Understanding (MOU) between the City and Cupertino Historical Society (CHS) to clarify what services CHS will provide and what processes will be used to ensure transparency and accountability for taxpayer dollars?
o Potential budget amount: $20,000 - $40,000
o Potential methods to consider:
 Semi-annual update and an annual report with a list of events demonstrating the number of Cupertino residents served
 Annual work plan presented to Council and/or Parks and Rec Commission to provide feedback and allow public to provide input  City Council representatives on the Cupertino Historical Society Board or liaisons as committee assignments
 Partial funding for staffing, provided that there is strong oversight by the city on the staff work.
 Commitment for fundraising goals so the funding from the city maintains at 20% of the budget, for example
 Hybrid method with both grant funding and agreement with some funding
 3-5 year agreement
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Wei made a friendly amendment that staff does not need to consider every item and can also come up with additional items. (Chao and Moore accepted the friendly amendment).

Final motion:

Chao moved and Moore seconded to provide the following direction to staff.  Bring back an agreement for facility use of the Quinlan museum space and meeting spaces in Quinlan.
 Bring back an agreement or Memorandum of Understanding (MOU) between the City and Cupertino Historical Society (CHS) to clarify what services CHS will provide and what processes will be used to ensure transparency and accountability for taxpayer dollars?
o Potential budget amount: $20,000 - $40,000
o Potential methods to consider (not limited to the items below):
 Semi-annual update and an annual report with a list of events demonstrating the number of Cupertino residents served
 Annual work plan presented to Council and/or Parks and Recreation Commission to provide feedback and allow public to provide input  City Council representatives on Cupertino Historical Society (CHS) Board or liaisons as committee assignments
 Partial funding for staffing, provided that there is strong oversight by the city on the staff work.
 Commitment for fundraising goals so the funding from the city maintains at 20% of the budget, for example
 Hybrid method with both grant funding and agreement with some funding
 3-5 year agreement
The amended motion carried unanimously (Paul absent).

Council recessed from 11:18 p.m. to 11:23 p.m.

21. Subject: Consider conducting a first reading of an ordinance for amendments to Cupertino Municipal Code Chapter 2.80 and Sections 19.102.040, 19.148.030, 19.148.050,

19.148.060, and 19.148.090 to Adopt a Name Change for the Fine Arts Commission to the Arts and Culture Commission
Recommended Action: Conduct the first reading of Ordinance No. 22-2241: “An Ordinance of the City Council of the City of Cupertino Amending Cupertino Municipal Code Chapter 2.80 and Sections 19.102.040, 19.148.030, 19.148.050, 19.148.060, and

19.148.090 to adopt a name change for the Fine Arts Commission to the Arts and Culture Commission"
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Assistant Parks and Recreation Director Rachelle Sander gave a presentation.

Vice Mayor Chao opened the public comment period and, seeing no one, closed the public comment period.

Councilmembers asked questions and made comments.

City Clerk Kirsten Squarcia read the title of Ordinance No. 22-2241: “An Ordinance of the City Council of the City of Cupertino Amending Cupertino Municipal Code Chapter

2.80 and Sections 19.102.040, 19.148.030, 19.148.050, 19.148.060, and 19.148.090 to adopt a name change for the Fine Arts Commission to the Arts and Culture Commission" Moore moved and Wei seconded to read Ordinance No. 22-2241 by title only, and that the City Clerk’s reading constitutes the first reading thereof. Ayes: Moore, Wei, Willey, Chao, and. Noes: None. Abstain: None. Absent: Paul.

22. Subject: Consider conducting a first reading of an ordinance amending Municipal Code Chapter 2.84: Environmental Review Committee
Recommended Action: Conduct the first reading and approve the introduction of Ordinance No. 22-2242: "An Ordinance of the City Council of the City of Cupertino amending Municipal Code Chapter 2.84: Environmental Review Committee" Presenter: Chris Jensen, City Attorney
Moore moved and Chao seconded to continue this item until the July 7, 2022 Special City Council Meeting. The motion carried unanimous (Paul absent).

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS
Chao and Moore add the following direction for future agenda items:

1. Bring back a future agenda item for a study session to review past partnership and support for Cupertino Chamber of Commerce and discuss options of future partnership with the Chamber.
 Including information:
o Information on other cities and their relationship with Chamber o What other payments are made to contracts which do not have any written agreements?
o What other payments are made for evergreen contracts, which will continue without any Council approval?
o What process is there to confirm an invoice contains enough information to justify the amount of the invoice?
o Whether Chamber qualifies for nonprofit fees for facility rental, 26 CC 07-07-2022
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City Council Minutes June 21, 2022

o What communication methods do we have with all businesses who have Cupertino business licenses?
o How do we support ALL Cupertino businesses?
o Liability insurance certificate from Chamber or waiver signed by staff? o I Love Cupertino contract and subscription and itemized expenses o Why IT Department did not help build the website

2. Amend Muni code so the “2.80.080 Powers and Functions” to reflect the role of Arts and Cultural Commission on Public Art recommendation

3. Public Art Guidelines for larger projects
 $100,000 cap right now
 For larger projects with a higher amount, perhaps the Fine Art Commission makes a recommendation and the final approval by the Council
 Consider Public Art Master Plans as other cities have, such as Palo Alto, Sunnyvale, and San Jose

ADJOURNMENT
At 12:01 a.m. on Wednesday, June 22, Vice Mayor Chao adjourned the Regular City Council Meeting.
_________________________
Kirsten Squarcia City Clerk
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CITY OF CUPERTINO
Agenda Item
22-11164 Agenda Date: 7/7/2022
Agenda #: 7.

Subject: Consider approval of the June 24 City Council minutes Approve the June 24 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Friday, June 24, 2022

SPECIAL MEETING
At 7:30 a.m., Mayor Darcy Paul called the Special City Council Meeting to order in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue.

In open session before Council convened in closed session, the Mayor called for any members of the public who were present to provide comment regarding any item on the agenda. No members of the public requested to speak. Mayor Paul then closed the session.

ROLL CALL

Present: Mayor Darcy Paul, Vice Mayor Liang Chao, and Councilmembers Kitty Moore, Hung Wei, and Jon Robert Willey. Absent: None.

CLOSED SESSION

1. Subject: Public Employee Employment (Gov’t Code 54957(b)(1)); Title: City Manager Recruitment
Council conducted the Public Employee Employment (Gov’t Code 54957(b)(1)); Title:

City Manager Recruitment.

No reportable action was taken.

Mayor Paul ended the closed session.

OPEN SESSION

REPORT REGARDING CLOSED SESSION
Mayor Paul conducted the open session report regarding closed session. 29 CC 07-07-2022
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ADJOURNMENT
At 8:43 a.m., Mayor Paul adjourned the Special City Council Meeting. _______________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
22-11165 Agenda Date: 7/7/2022
Agenda #: 8.

Subject: Consider approval of the June 26 City Council minutes Approve the June 26 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Sunday, June 26, 2022

SPECIAL MEETING
At 7:30 a.m., Mayor Darcy Paul called the Special City Council Meeting to order in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue.

In open session before Council convened in closed session, the Mayor called for any members of the public who were present to provide comment regarding any item on the agenda. No members of the public requested to speak. Mayor Paul then closed the session.

ROLL CALL

Present: Mayor Darcy Paul, Vice Mayor Liang Chao, and Councilmembers Kitty Moore, Hung Wei, and Jon Robert Willey. Absent: None.

CLOSED SESSION

1. Subject: Public Employee Employment (Gov’t Code 54957(b)(1)); Title: City Manager Recruitment
Council conducted the Public Employee Employment (Gov’t Code 54957(b)(1)); Title:

City Manager Recruitment.

No reportable action was taken.

Mayor Paul ended the closed session.

OPEN SESSION

REPORT REGARDING CLOSED SESSION
Mayor Paul conducted the open session report regarding closed session. 32 CC 07-07-2022
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City Council Minutes June 26, 2022

ADJOURNMENT
At 9:04 a.m., Mayor Paul adjourned the Special City Council Meeting. _______________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
22-11109 Agenda Date: 7/7/2022
Agenda #: 9.

Subject: Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period July 7, 2022 through August 6, 2022 pursuant to the Brown Act, as amended by AB 361
Adopt Resolution No. 22-078 authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period July 7, 2022 through August 6, 2022 pursuant to the Brown Act, as amended by AB 361
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1 CITY COUNCIL STAFF REPORT
Meeting: July 7, 2022
Subject
Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period July 7, 2022 through August 6, 2022 pursuant to the Brown Act, as amended by AB 361 Recommended Action
Consider adopting a resolution authorizing continued remote teleconference meetings of the legislative bodies of the City of Cupertino for the period July 7, 2022 through August 6, 2022 pursuant to the Brown Act, as amended by AB 361 Background
On March 2, 2020, Governor Newsom declared a state of emergency due to the public health threat posed by COVID-19. On March 4, 2020, Governor Newsom issued Executive Order No-29-20, which suspended certain elements of the Brown Act and specifically allowed legislative bodies to hold meetings entirely electronically with no physical meeting. In accordance with the Executive Order, the City held its first teleconference meeting on March 24, 2020, to help stop the spread of COVID-19. On June 11, 2021, Governor Newsom issued Executive Order No-08-21, which stated that the provisions in Executive Order No-29-20, suspending certain elements of the Brown Act, would continue to apply through September 30, 2021.

On September 15, 2021, Governor Newsom signed AB 361 into law, which allows state and local agencies to continue using teleconferencing during certain state-declared emergencies under modified Brown Act requirements. AB 361 became effective immediately after signing due to its emergency clause and is set to sunset on January 1, 2024. Under AB 361, teleconference meetings may be held during a state of emergency if (1) state or local officials have imposed or recommended measures to promote social distancing, or (2) a legislative body determines by a majority vote that meeting in person would present imminent risks to the health or safety of attendees. (Gov. Code, § 54953(e)(1).)
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2 To continue teleconference meetings beyond a 30-day period, AB 361 requires the Council to make a determination that either (i) "[t]he state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) “State or local officials continue to impose or recommend measures to promote social distancing.” (Gov. Code, § 54953(e)(3)(B).) That determination must be reviewed each 30 days thereafter to continue teleconference meetings. (Ibid.)
Discussion
AB 361 allows the City Council and other City legislative bodies to continue meeting exclusively via teleconference so long as a state emergency declaration remains in place and the statute’s conditions for permitting remote meetings are met. To continue meeting remotely, the City Council must find that state or local officials have imposed or recommend measures to support social distancing, or that the state of emergency continues to directly impact the ability of the members to meet safely in person.

On June 7, 2022, Council adopted Resolution No. 22-061 affirming findings related to AB 361 and authorizing the City Manager and legislative bodies of the City of Cupertino to meet exclusively by teleconference in accordance with Government Code section 54953(e)(3) and other applicable provisions of the Brown Act through July 7, 2022 (Attachment B). Council may make either or both of the permitted findings to extend the time to allow teleconference meetings to continue. The Santa Clara County Health Officer continues to recommend that public bodies meet remotely to the extent possible, specifically including use of newly enacted AB 361 to maintain remote meetings under the Ralph M. Brown Act and similar laws (Attachment C). It is therefore recommended that Council adopt the Draft Resolution authorizing continued teleconference meetings for the City of Cupertino’s legislative bodies in order to protect the health and safety of all attendees and participants, particularly those who are unvaccinated (Attachment A).

Sustainability Impact
Conducting meetings remotely has reduced paper consumption by providing electronic access to meeting materials instead of printed materials.

Fiscal Impact
No fiscal impact.
_____________________________________
Prepared by: Kirsten Squarcia, City Clerk
Approved for Submission by: Dianne Thompson, Acting City Manager Attachments:

A – Draft Resolution
B – Adopted Resolution No. 22-061
C – Health Officer Recommendation Regarding Public Governmental Meetings 36 CC 07-07-2022
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RESOLUTION NO. 22-___

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

AUTHORIZING CONTINUED REMOTE TELECONFERENCE MEETINGS OF THE LEGISLATIVE BODIES OF THE CITY OF CUPERTINO FOR THE PERIOD JULY 7, 2022 THROUGH AUGUST 6, 2022 PURSUANT TO BROWN ACT PROVISIONS WHEREAS, the City of Cupertino is committed to preserving and nurturing public access and participation in meetings of the City Council, commissions, and committees; and
WHEREAS, all meetings of the City of Cupertino’s legislative bodies are open and public, as required by the Ralph M. Brown Act (Government Code sections 54950–54963), so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business; and
WHEREAS, the Brown Act, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
WHEREAS, a required condition for holding meetings exclusively by teleconference is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and
WHEREAS, Government Code section 54953(e) further requires that in order to authorize meetings exclusively by teleconference, a legislative body must determine that state or local officials have imposed or recommended measures to promote social distancing, or that meeting in person would present imminent risks to the health and safety of attendees; and
WHEREAS, on October 5, 2021, November 2, 2021, November 30, 2021, December 21, 2021, January 18, 2022, February 15, 2022, March 15, 2022, April 5, 2022, May 3, 2022, May 19, 2022, and June 7, 2022, the Cupertino City Council made the findings required under Government Code section 54953(e) and resolved that the legislative bodies of the City of Cupertino shall conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that 37 CC 07-07-2022
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Resolution No. 22-___

such legislative bodies should comply with the requirements to provide the public with access to the meetings as prescribed in section 54953(e)(2); and WHEREAS, Government Code section 54593(e)(3) provides that to continue to holding meetings of legislative bodies exclusively by teleconference, the legislative body must reconsider the circumstances of the state of emergency every 30 days, and find that either (i) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) State or local officials continue to impose or recommend measures to promote social distancing; and
WHEREAS, the City Council has reconsidered the circumstances of the state of emergency that now exists, specifically defined in the County of Santa Clara proclamation of a local emergency beginning February 3, 2020, the City of Cupertino proclamation of a local emergency on March 11, 2020, the Governor of the State of California proclamation of a state of emergency beginning on March 4, 2020, and the national emergency declaration in Proclamation 9994 of March 13, 2020, beginning March 1, 2020, concerning the COVID-19 pandemic; and
WHEREAS, the County of Santa Clara Health Officer's Recommendation Regarding Continued Remote Public Meetings of Governmental Entities dated September 21, 2021 and the California Department of Industrial Relations Revised Emergency Temporary Standards, effective May 6, 2022, continue to require or recommend social distancing in the workplace in certain circumstances; and WHEREAS, the Health Officer's Recommendations, the Revised Emergency Temporary Standards, and evidence documenting the transmission of COVID-19 in indoor spaces establishes that the state of emergency continues to directly impact the ability of the members to meet safely in person; and
WHEREAS, based on the above findings, the Cupertino City Council hereby determines that the legislative bodies of the City of Cupertino may continue to conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that such legislative bodies shall comply with the requirements to provide the public with access to the meetings as prescribed in section 54953(e)(2); and
WHEREAS, the City has and will continue to provide access for the public to legislative meetings and procedures through video teleconference technologies. 38 CC 07-07-2022
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Resolution No. 22-___

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino, as follows:

1. Remote Teleconference Meetings. The City Manager and legislative bodies of the City of Cupertino are hereby authorized and directed to meet exclusively by teleconference and to take all actions necessary to carry out the intent and purpose of this Resolution, including conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act.

2. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption and shall be effective through August 6, 2022, or such time as the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the City Council of the City of Cupertino may continue to teleconference without compliance with Government Code section 54953(b)(3).

PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 7th day of July 2022, by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
_______________ ________________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
____________________ ___________
Kirsten Squarcia, City Clerk
________________________
Date
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RESOLUTION NO. 22-061

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

AUTHORIZING CONTINUED REMOTE TELECONFERENCE MEETINGS OF THE LEGISLATIVE BODIES OF THE CITY OF CUPERTINO FOR THE PERIOD JUNE 7, 2022 THROUGH JULY 7, 2022 PURSUANT TO BROWN ACT PROVISIONS WHEREAS, the Cityof Cupertino is committed to preserving andnurturingpublic access and participation in meetings of the City Council, commissions, and committees; and
WHEREAS, all meetings of the City of Cupertino's legislative bodies are open and public, asrequired by the Ralph M. Brown Act (Government Code sections 54950-54963), so that any member of the public may attend, participate, and watch the City'slegislative bodies conduct their business; and
WHEREAS, the BrownAct, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
WHEREAS, a required condition for holding meetings exclusively by teleconference is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and propertywithin the state caused by conditions as described in Government Code section 8558; and
WHEREAS, Government Code section 54953(e) further requires that in order to authorize meetings exclusively by teleconference, a legislative body must determine that state or local officials have imposed or recommended measures to promote social distancing, or that meeting in person would present imminent risks to the health and safety of attendees; and
WHEREAS, on October 5, 2021, November 2, 2021, November 30, 2021, December 21, 2021, January 18, 2022, February 15, 2022, March 15, 2022, April 5, 2022, May 3, 2022, and May 19, 2022, the Cupertino City Council made the findings required under Government Code section 54953(e) and resolved that the legislative bodies of the City of Cupertino shall conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that such 40 CC 07-07-2022
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Resolution No. 22-061

legislative bodies should comply with the requirements to provide the public with access to the meetings as prescribed in section 54953(e)(2); and WHEREAS, Government Code section 54593(e)(3) provides that to continue to holding meetings of legislative bodies exclusively by teleconference, the legislative body must reconsider the circumstances of the state of emergency every 30 days, and find that either (i) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (ii) State or local officials continue to impose or recommend measures to promote social distancing; and
WHEREAS, the City Council has reconsidered the circumstances of the state of emergency that now exists, specifically defined in the County of Santa Clara proclamation of a local emergency begir'u"iing February 3, 2020, the City of Cupertino proclamation of a local emergency on March 11, 2020, the Governor of the State of California proclamation of a state of emergency beginning on March 4, 2020, and the national emergency declaration in Proclamation 9994 of March 13, 2020, beginning March 1, 2020, concerning the COVID-19 pandemic; and
WHEREAS, the County of Santa Clara Health Officer's Recommendation Regarding Continued Remote Public Meetings of Governmental Entities dated September 21, 2021 and the California Department of Industrial Relations Revised Emergency Temporary Standards, effective May 6, 2022, continue to require or recommend social distancing in the workplace in certain circumstances; and WHEREAS, the Health Officer's Recommendations, the Revised Emergency Temporary Standards, and evidence documenting the transmission of COVID-19 in indoor spaces establishes that the state of emergency continues to directly impact the ability of the members to meet safely in person; and
'l/VHEREAS, based on the above findings, the Cupertino City Council hereby determines that the legislative bodies of the City of Cupertino shall continue to conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e) and that such legislative bodies shall comply with the requirements to provide the public with access to the meetings as prescribed in section 54953(e)(2); and
WHEREAS, the City has and will continue to provide access for the public to legislative meetings and procedures through video teleconference technologies. 41 CC 07-07-2022
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Resolution No. 22-061

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cupertino, as follows:

1. Remote Teleconference Meetings. The City Manager and legislative bodies of the City of Cupertino are hereby authorized and directed to meet exclusively by teleconference and to take all actions necessary to carry out the intent and purpose of this Resolution, including conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act.

2. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption and shall be effective through July 7, 2022, or such time as the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the City Council of the City of Cupertino may continue to teleconference without compliance with Government Code section 54953(b)(3).

PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 7th day of June 2022, by the following vote:

Vote
AYES:

NOES:

ABSENT:

ABST AIN:

Members of the City Council
Chao, Paul, Moore, Wei, Willey
None
None
None
SIGNED:
,/7=. (- // r/z- 'z
', - % '
Darcy Paul, J
City of Cupe
Date
ATTEST:

Kirsten Squarcia, City Clerk Date
6/21/22
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County of Santa Clara
Public Health Department
Health Officer
976 Lenzen Avenue, 2nd Floor
San José, CA 95126
408.792.3798
Board of Supervisors: Mike Wasserman, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian County Executive: Jeffrey V. Smith
Recommendation Regarding Continued Remote Public Meetings of Governmental Entities Issued: September 21, 2021
In light of the continued state of emergency related to COVID-19, the County Public Health Officer continues to recommend that public bodies meet remotely to the extent possible, specifically including use of newly enacted AB 361 to maintain remote meetings under the Ralph M. Brown Act and similar laws.

Among other reasons, this recommendation is made due to the continued threat of COVID-19 to the community, the unique characteristics of public governmental meetings (such as the increased mixing associated with bringing together people from across the community, the need to enable those who are immunocompromised or unvaccinated to be able to safely continue to fully participate in public governmental meetings, and the challenges with fully ascertaining and ensuring compliance with vaccination and other safety recommendations at such meetings), and the continued increased safety protection that social distancing provides as one means by which to reduce the risk of COVID-19 transmission. This recommendation does not apply to those meetings of a quasi-judicial nature that have been already meeting in person prior to September 21, 2021, for example to allow for credibility determinations of witnesses.

The Health Officer will continue to evaluate this recommendation on an ongoing basis and will communicate when there is no longer such a recommendation with respect to meetings for public bodies.
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CITY OF CUPERTINO
Agenda Item
22-11179 Agenda Date: 7/7/2022
Agenda #: 10.

Subject: Consider authorizing the City Manager, or Designee, to execute a one-year agreement with Crowe LLP for auditor services for a total contract amount of $148,600

1. Authorize the City Manager, or Designee, to execute a one-year agreement with Crowe LLP for auditor services for a total contract amount of $148,600

2. Adopt Resolution No. 22-079 approving Budget Modification #2223-219 increasing appropriations in the General Fund (100-41-405) by $43,600 CITY OF CUPERTINO Page 1 of 1 Printed on 7/1/2022
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1 CITY COUNCIL STAFF REPORT
Meeting: July 7, 2022
Subject
Consider authorizing the City Manager, or Designee, to execute a one-year agreement with Crowe LLP for auditor services for a total contract amount of $148,600 Recommended Action

1. Authorize the City Manager, or Designee, to execute a one-year agreement with Crowe LLP for auditor services for a total contract amount of $148,600

2. Adopt Resolution No. 22-XXX approving Budget Modification #2223-219 increasing appropriations in the General Fund (100-41-405) by $43,600 Discussion
On December 12, 2016, the City issued a request for proposal (RFP) for certified public accounting firms to audit the City’s financial statements for the fiscal year ending June 30, 2017, and the two subsequent fiscal years thereafter, with an option to extend for two oneyear periods, not to exceed a total of five fiscal years.

The City received six proposals, which were reviewed and evaluated by the Auditor Procurement Subcommittee. The Auditor Procurement Subcommittee, which the Audit Committee established on November 9, 2016, consisted of the following members:
 Audit Committee Chair
 Audit Committee Member
 Finance Manager/Deputy City Treasurer
After reviewing and evaluating the proposals, the subcommittee interviewed three firms.

The subcommittee unanimously recommended that the Audit Committee approve the City Manager to engage Crowe Horwath LLP (now known as Crowe LLP) to perform independent auditor services beginning with the fiscal year ending June 30, 2017.

On February 27, 2017, the Audit Committee passed a motion to accept the subcommittee’s recommendation to select Crowe to perform independent auditor and related services beginning with the fiscal year ending June 20, 2017.
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2 The City entered into five separate engagements with Crowe for the Fiscal Year (FY) 2016- 17, 2017-18, 2018-19, 2019-20, and 2020-21 audits. The table below shows the services provided and associated costs since 2017.

Although professional services are exempt from bidding requirements in Municipal Code Chapter 3.22, staff nonetheless intended to complete a new competitive process to select a firm to provide independent auditor services for FY 2021-22. However, staff was delayed in issuing a Request for Proposal (RFP). At the December 13, 2021, Audit Committee meeting, the Finance Manager informed the Audit Committee that the City intended to engage Crowe for one additional year and pursue an RFP process for the FY 2022-23 audit.

As a result, staff recommends authorizing the City Manager, or Designee, to execute an agreement with Crowe for the FY 2021-22 audit until the City can conduct the RFP process.

The fees would be $141,100 for the financial statement audit and agreed-upon procedures (AUP) and $7,500 for the single audit as described below.

Description of Services Fee Amount
Audit of City of Cupertino, California financial statements for the year ending June 30, 2022 (includes ACFR, TDA, City Investment Policy AUP, Proposition 111 AUP, Storm Drain AUP, City State Controller Report and Report of Internal Controls)
$141,100
Single Audit of City of Cupertino, California with one major program $7,500 Next Steps
At the July 27, 2022, Audit Committee meeting, staff plans to recommend that the Audit Committee form an auditor selection subcommittee. Staff would work with the subcommittee to develop and publish an RFP. After proposals are received, the subcommittee would evaluate the proposals and recommend an auditor for the FY 2022- 23 audit. Staff would then bring the Audit Committee’s recommendation to City Council for consideration.

Fiscal Year Cost Services
2017-18 127,200 FY 2016-17 Audit ($107,200), FY 2017-18 Audit ($20,000) 2018-19 64,600 FY 2017-18 Audit ($64,600)
2019-20 83,000 FY 2018-19 Audit ($76,000), FY 2019-20 Audit ($7,000) 2020-21 94,000 FY 2019-20 Audit ($69,000), FY 2020-21 Audit ($25,000) 2021-22 76,500 FY 2020-21 Audit ($76,500)
Total $445,300
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3 Sustainability Impact
No sustainability impact.

Fiscal Impact
The FY 2022-23 adopted budget for external audit services is $105,000. An additional appropriation of $43,600 is requested to account for increases in the cost of services. If the budget adjustment is approved, the total FY 2022-23 budget for external audit services will be $148,600.
_____________________________________
Prepared by: Thomas Leung, Senior Management Analyst
Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: Dianne Thompson, Assistant City Manager Attachments:

A – Draft Resolution
B – City of Cupertino Financial Statement Engagement Letter 2022 Draft C – City of Cupertino GANN AUP Engagement Letter 2022 Draft D – City of Cupertino Investment AUP Engagement Letter 2022 Draft E – City of Cupertino Storm Drain AUP Engagement Letter 2022 Draft 47 CC 07-07-2022
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ATTACHMENT A
RESOLUTION NO. 22-XXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING THE OPERATING BUDGET FOR FISCAL YEAR 2022-23 BY

APPROPRIATING, TRANSFERRING, AND UNAPPROPRIATINGMONIES

FORSPECIFIEDFUNDS
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects and programs, and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund reallocations and ratifies the attached amended appropriations as set forth in Exhibit A.

PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 7
th day of July 2022, by the following vote:

Vote Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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ATTACHMENT A
SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
Exhibit A
Appropriation
Amendment by Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
(Use of)
General Fund $43,600 $- $(43,600)
Special Revenue Funds $- $- $-
Capital Projects Funds $- $- $-
Enterprise Funds $- $- $-
Internal Service Funds $- $- $-
Total Appropriation
Amendment All Funds $43,600 $- $(43,600)
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Crowe LLP
Independent Member Crowe Global
650 Town Center Drive, Suite 740,
Costa Mesa, CA 92626-7192
Tel 714-668-1234
Fax 714-668-1235
www.crowe.com
June 7, 2022
To the Honorable Mayor and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Dear Ladies and Gentlemen:

This letter confirms the arrangements for Crowe LLP (“Crowe” or “us” or “we” or “our”) to provide the professional services discussed in this letter to City of Cupertino (“you”, “your” or “Client”). The attached Crowe Engagement Terms, and any other attachments thereto, are integral parts of this letter, and such terms are incorporated herein.

AUDIT SERVICES
Our Responsibilities
We will audit and report on the financial statements of the Client for the year ending June 30, 2022.

We will audit and report on the financial statements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information, including the individual fund financial statements of the TDA which collectively comprise the basic financial statements of the Client for the year ending June 30, 2022.

In addition to our report on the financial statements, we plan to evaluate the presentation of the following supplementary information in relation to the financial statements as a whole, and to report on whether this supplementary information is fairly stated, in all material respects, in relation to the financial statements as a whole.
• Combining and Individual Fund Financial Statements and Schedules • Schedule of Expenditures of Federal Awards
In addition to our report on the financial statements, we also plan to perform specified procedures in order to describe in our report whether the following required supplementary information is presented in accordance with applicable guidelines. However, we will not express an opinion or provide any assurance on this information due to our limited procedures. • Management’s Discussion and Analysis
• Schedule of Changes in Net Pension Liability and Related Ratios • Schedule of Contributions – Miscellaneous Plan
• Schedule of Changes in Net OPEB Liability and Related Ratios • Schedule of Contributions – OPEB
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The document will also include the following additional information that will not be subjected to the auditing procedures applied in our audit of the financial statements, and for which our auditor’s report will disclaim an opinion:
• Introductory Section of the Comprehensive Annual Financial Report • Statistical Section of the Comprehensive Annual Financial Report • Community Profile
The objective of the audit is the expression of an opinion on the financial statements. We will plan and perform the audit in accordance with auditing standards generally accepted in the United States of America, the standards for financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States, and the audit requirements of Title 2 U.S. Code of Federal Regulations Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). Those standards require that we obtain reasonable, rather than absolute, assurance about whether the financial statements are free of material misstatement whether caused by error or fraud, and that we report on the Schedule of Expenditures of Federal Awards (as noted above), and on your compliance with laws and regulations and on its internal controls as required for a Single Audit. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with GAAS will always detect a material misstatement when it exists. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal control. Noncompliance with the compliance requirements is considered material if there is a substantial likelihood that, individually or in the aggregate, it would influence the judgment made by a reasonable user of the report on compliance about the entity's compliance with the requirements of the federal programs as a whole. Because of inherent limitations of an audit, together with the inherent limitations of internal control, an unavoidable risk that some material misstatements may not be detected exists, even though the audit is properly planned and performed in accordance with applicable standards. An audit is not designed to detect error or fraud that is immaterial to the financial statements.

An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor’s judgment including the assessment of the risks that the financial statements could be misstated by an amount that we believe would influence the judgment made by a reasonable user of these financial statements. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements. As required by the standards, we will maintain professional skepticism throughout the audit.

In making our risk assessments, we obtain an understanding of internal control relevant to the audit in order to design audit procedures that are appropriate in the circumstances but not for the purpose of expressing an opinion on the effectiveness of the Client’s internal control. However, we will communicate in writing to those charged with governance and management concerning any significant deficiencies or material weaknesses in internal control relevant to the audit of the financial statements that we have identified during the audit. We will communicate to management other deficiencies in internal control identified during the audit that have not been communicated to management by other parties and that, in our professional judgment, are of sufficient importance to merit management’s attention. We will also communicate certain matters related to the conduct of the audit to those charged with governance, including (1) fraud involving senior management, and fraud (whether caused by senior management or other employees) that causes a material misstatement of the financial statements, (2) illegal acts that come to our attention (unless they are clearly inconsequential) (3) disagreements with management and other significant difficulties encountered in performing the audit and (4) various matters related to the Client‘s accounting policies and financial statements. Our engagement is not designed to address legal or regulatory matters, which matters should be discussed by you with your legal counsel. 51 CC 07-07-2022
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As part of our audit, we will conclude, based on the audit evidence obtained, whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the Client's ability to continue as a going concern for a reasonable period of time.

We expect to issue a written report upon completion of our audit of the Client’s financial statements. Our report will be addressed to those charged with governance of the Client. Circumstances may arise in which it is necessary for us to modify our opinion, add an emphasis of matter or other matter paragraph, or withdraw from the engagement.

In addition to our report on the financial statements and supplemental information, we plan to issue the following reports:
• Independent Auditor’s Report on Internal Control Over Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards — The purpose of this report is solely to describe the scope of our testing of internal control over financial reporting and compliance and the results of that testing, and not to provide an opinion on internal control over financial reporting or on compliance.

This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the Client’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
• Independent Auditor’s Report on Compliance for Each Major Federal Program and Report on Internal Control Over Compliance -- The purpose of this report on internal control over compliance is solely to describe the scope of our testing of internal control over compliance and the results of that testing based on the requirements of the Uniform Guidance. Accordingly, this report is not suitable for any other purpose.

We will also perform tests of controls including testing underlying transactions, as required by the Uniform Guidance, to evaluate the effectiveness of the design and operation of controls that we consider relevant to preventing or detecting material noncompliance with compliance requirements applicable to each of your major federal awards programs. We will determine major programs in accordance with the Uniform Guidance. Our tests will be less in scope than would be necessary to render an opinion on these controls and, accordingly, no opinion will be expressed. We will inform you of any non-reportable conditions or other matters involving internal control, if any, as required by the Uniform Guidance.

As part of obtaining reasonable assurance about whether the financial statements are free of material misstatement, we will also perform tests of your compliance with applicable laws, regulations, contracts and grants. However, because of the concept of reasonable assurance and because we will not perform a detailed examination of all transactions, there is a risk that material errors, irregularities, or illegal acts, including fraud or defalcations, may exist and not be detected by us. However, the objective of our audit of compliance relative to the financial statements will not be to provide an opinion on overall compliance with such provisions, and we will not express such an opinion. We will advise you, however, of any matters of that nature that come to our attention, unless they are clearly inconsequential.

The Uniform Guidance requires that we plan and perform the audit to obtain reasonable assurance about whether you have complied with certain provisions of laws, regulations, contracts and grants. Our procedures will consist of the applicable procedures described in the United States Office of Management and Budget (OMB) Compliance Supplement for the types of compliance requirements that could have a direct and material effect on each of your major programs. The purpose of our audit will be to express an opinion on your compliance with requirements applicable to major Federal award programs. Because an audit is designed to provide reasonable assurance, but not absolute assurance, the audit is not designed to detect immaterial violations or instances of noncompliance.

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transaction and is not intended to benefit or influence any other party. Therefore, items of possible interest to a third party may not be specifically addressed or matters may exist that could be assessed differently by a third party.

The working papers for this engagement are the property of Crowe and constitute confidential information.

However, we may be requested to make certain working papers available to your oversight agency or grantors pursuant to authority given to them by law, regulation, or contract. If requested, access to such working papers will be provided under the supervision of our personnel. Furthermore, upon request, we may provide photocopies of selected working papers to your oversight agency or grantors. The working papers for this engagement will be retained for a minimum of three years after the date our report is issued or for any additional period requested by the oversight agency or pass-through entity. If we are aware that a federal awarding agency, pass-through entity, or auditee is contesting an audit finding, we will contact the party contesting the audit finding for guidance prior to destroying the working papers.

Government Auditing Standards require that we provide you with a copy of our most recent peer review report, which accompanies this letter along with the related letter of comment and response thereto.

The Client’s Responsibilities
The Client’s management is responsible for the preparation and fair presentation of the financial statements in accordance with accounting principles generally accepted in the United States of America.

Management is also responsible for the design, implementation and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to error or fraud.

The Client’s management is also responsible for complying with applicable laws, regulations, contracts and grants and such responsibility extends to identifying the requirements and designing internal control policies and procedures to provide reasonable assurance that compliance is achieved. Management has the responsibility to make Crowe aware of significant contractor relationships in which the contractor is responsible for program compliance. Client's management is responsible for taking timely and appropriate steps to remedy fraud and noncompliance with provisions of laws, regulations, contracts, and grant agreements that the auditor reports. Additionally, it is management’s responsibility to follow up and take corrective action on reported audit findings, to establish and maintain a process for tracking the status of findings and recommendations, and to prepare a summary schedule of prior audit findings, which should be available for our review, and a corrective action plan.

Management has the responsibility to adopt sound accounting policies, maintain an adequate and efficient accounting system, to safeguard assets, and to design and implement programs and controls to prevent and detect fraud. Management’s judgments are typically based on its knowledge and experience about past and current events and its expected courses of action. Management’s responsibility for financial reporting includes establishing a process to prepare the accounting estimates included in the financial statements and to devise policies to ensure that the Client complies with applicable laws and regulations.

In preparing the financial statements, management is required to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the Client's ability to continue as a going concern for one year from the date the Financial Statements are available to be issued.

Management is responsible for providing to us, on a timely basis, all information of which management is aware that is relevant to the preparation and fair presentation of the financial statements, such as records, documentation, and other matters. Management is also responsible for providing such other additional information we may request for the purpose of the audit, and unrestricted access to persons within the Client from whom we determine it necessary to obtain audit evidence. Additionally, those 53 CC 07-07-2022
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charged with governance are responsible for informing us of their views about the risks of fraud within the Client, and their knowledge of any fraud or suspected fraud affecting the Client.

Management is responsible for adjusting the financial statements to correct material misstatements related to accounts or disclosures. As part of our audit process, we will request from management written confirmation concerning representations made to us in connection with the audit, including that the effects of any uncorrected misstatements aggregated by us during the audit are immaterial, both individually and in the aggregate, to the financial statements, and to the Client’s compliance with the requirements of its Federal programs. Management acknowledges the importance of management’s representations and responses to our inquiries, and that they will be utilized as part of the evidential matter we will rely on in forming our opinion. Because of the importance of such information to our engagement, you agree to waive any claim against Crowe and its personnel for any liability and costs relating to or arising from any inaccuracy or incompleteness of information provided to us for purposes of this engagement.

Management is responsible for the preparation of the supplementary information identified above in accordance with the applicable criteria. As part of our audit process, we will request from management certain written representations regarding management’s responsibilities in relation to the supplementary information presented, including but not limited to its fair presentation in accordance with the applicable criteria, the method of measurement and presentation and any significant assumptions or interpretations underlying the supplementary information. In addition, it is management’s responsibility to include the auditor’s report on supplementary information in any document that contains the supplementary information and that indicates that we have reported on such supplementary information. It is also management’s responsibility to present the supplementary information with the audited financial statements or, if the supplementary information will not be presented with the audited financial statements, to make the audited financial statements readily available to the intended users of the supplementary information no later than the date of issuance by Client of the supplementary information and the auditor’s report thereon.

Management is responsible for the preparation of the required supplementary information identified above in accordance with the applicable guidelines. We will request from management certain written representations regarding management’s responsibilities in relation to the required supplementary information presented, including but not limited to whether it has been measured and presented in accordance with prescribed guidelines, the method of measurement and presentation and any significant assumptions or interpretations underlying the supplementary information.

At the conclusion of the engagement, it is management’s responsibility to submit the reporting package (including financial statements, schedule of expenditures of federal awards, summary schedule of prior audit findings, auditor’s reports, and corrective action plan) along with the Data Collection Form to the designated federal clearinghouse and, if appropriate, to pass-through entities. The Data Collection Form and the reporting package must be submitted within the earlier of thirty days after receipt of the auditor’s reports or nine months after the end of the audit period.

Management is responsible for report distribution responsibilities, including determining which officials or organizations will receive the report and making the report available to the public as applicable when the audit organization is responsible for report distribution.

OTHER SERVICES
Preparation of the following additional reports on behalf of the Client:

1. State of California Annual State Controller’s Report Financial Statement Preparation
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The Client will provide us with the necessary information to assist in the preparation of the draft financial statements including the notes thereto. We are relying on the Client to provide us with the detailed trial balance, note disclosure information and any other relevant report information in a timely fashion and ensure the data is complete and accurate. Management is solely responsible for the presentation of the financial statements.

Preparation of the Schedule of Expenditure of Federal Awards The Client will provide us with the necessary information to prepare the draft schedule of expenditure of federal awards including the notes thereto. We are relying on the Client to provide us with all information required by the Uniform Guidance for the schedule, notes and other relevant reporting information in a timely fashion and ensure the data is complete and accurate. Management is solely responsible for the presentation of the schedule of expenditures of federal awards.

Data Collection Form input services
We will provide assistance in completing sections of the Data Collection Form (DCF) relative to its federal award programs pursuant to the requirements of Section §200.512 of the Uniform Guidance that are promulgated to be completed by the Client. While we may provide this data entry service and assist you in satisfying your electronic data communication requirements to the Federal Audit Clearinghouse, the completeness and accuracy of this information remains the responsibility of your management.

With respect to the above other services, we will perform the services in accordance with applicable professional standards. We, in our sole professional judgment, reserve the right to refuse to do any procedure or take any action that could be construed as making management decisions or assuming management responsibilities. In connection with performing the above other services, you agree to:
assume all management responsibilities including making all management decisions; oversee the service by designating an individual, preferably within senior management, who possesses suitable skill, knowledge, and/or experience; evaluate the adequacy and results of the services performed; and accept responsibility for the results of the services.

BOND OFFERINGS
With respect to any official statements issued by the Client with which Crowe is not involved, the official statement should indicate that the auditor is not involved with the contents of such official statement. The disclosure should read as:
“Crowe, our independent auditor, has not been engaged to perform and has not performed, since the date of its report included herein, any procedures on the financial statements addressed in that report.

Crowe also has not performed any procedures relating to this official statement.” FEES
Our fees, including out-of-pocket expenses and certain internal charges, are outlined below. Certain internal technology charges will be billed per hour of professional time or a flat fee. Internal technology charges reflect our estimate of the costs for technology and related support on this engagement. Our invoices are due and payable upon receipt. Invoices that are not paid within 30 days of receipt are subject to a monthly interest charge of one percent per month or the highest interest rate allowed by law, whichever is less, which we may elect to waive at our sole discretion, plus costs of collection including reasonable attorneys’ fees. If any amounts invoiced remain unpaid 30 days after the invoice date, you agree that Crowe may, in its sole discretion, cease work until all such amounts are paid or terminate this engagement. In addition, our fee assumes one Single Audit major program. If, at fiscal year-end, additional major programs are calculated on the Schedule of Expenditures of Federal Awards prepared by the City, the additional fee associated with the testing of each major program will be $7,500 per program. We will present you with that calculation prior to beginning our year-end audit procedures. 55 CC 07-07-2022
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Description of Services Fee Amount
Audit of City of Cupertino, California financial statements for the year ending June 30, 2022 (includes ACFR, TDA, City Investment Policy AUP, Proposition 111 AUP, Storm Drain AUP, City State Controller Report and Report of Internal Controls) $141,100
Single Audit of City of Cupertino, California with one major program $7,500 We will invoice you as our services are rendered.

The fees outlined above are based on certain assumptions. Those assumptions may be incorrect due to incomplete or inaccurate information provided, or circumstances may arise under which we must perform additional work, which in either case will require additional billings for our services. Examples of such circumstances include, but are not limited to:
• Changing service requirements, such as additional major programs for the Single Audit o We will bill the City $7,500 for each additional major program based on our Major Program Determination
• New professional standards or regulatory requirements • New financial statement disclosures
• Work caused due to the identification of, and management’s correction of, inappropriate application of accounting pronouncements
• Erroneous or incomplete accounting records
• Evidence of material weakness or significant deficiencies in internal controls • Substantial increases in the number of significant deficiencies in internal controls • Regulatory examination matters
• Change in your organizational structure or size due to merger and acquisition activity or other events
• Change in your controls
• New or unusual transactions
• Agreed-upon level of preparation and assistance from your personnel not provided • Numerous revisions to your information
• Lack of availability of appropriate Client personnel during fieldwork • Additional audit procedures relating to the impact of COVID-19 on Client or additional regulatory requirements relating thereto
Additionally, to accommodate requests to reschedule fieldwork without reasonable notice, additional billings for our services could be required, and our assigned staffing and ability to meet agreed upon deadlines could be impacted.

We also assume the Client will prepare confirmation letters, the Introductory Section, the MD&A Section, the Statistical Section and the Community Profile Section of the report.

Due to such potential changes in circumstance, we reserve the right to revise our fees. However, if such a change in circumstances arises or if some other significant change occurs that causes our fees to exceed our estimate, we will advise management.

Our fees are exclusive of taxes or similar charges, as well as customs, duties or tariffs, imposed in respect of the Services, any work product or any license, all of which Client agrees to pay if applicable or if they become applicable (other than taxes imposed on Crowe’s income generally), without deduction from any fees or expenses invoiced to Client by Crowe.

The Client and Crowe agree that the Client may periodically request Crowe to provide additional services for accounting and reporting advice regarding completed transactions and potential or proposed transactions. The fees for such additional services will be based on Crowe’s hourly billing rates plus expenses or as mutually agreed upon between the Client and Crowe. 56 CC 07-07-2022
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To facilitate Crowe’s presence at Client’s premises, Client will provide Crowe with internet access while on Client’s premises. Crowe will access the internet using a secure virtual private network. Crowe will be responsible for all internet activity performed by its personnel while on Client’s premises. In the event Client does not provide Crowe with internet access while on Client’s premises, Client will reimburse Crowe for the cost of internet access through other means while on Client’s site.

MISCELLANEOUS
In delivering services to Client, Crowe may use subsidiaries owned and controlled by Crowe within and outside the United States. Crowe subsidiaries are subject to the same information security policies and requirements as Crowe LLP and will meet the requirements set forth in the confidentiality and data protection provisions of this Agreement. For purposes of this Miscellaneous section, the Acceptance section below, and all of the Crowe Engagement Terms, “Client” will mean the entity(ies) defined in the first paragraph of this letter and will also include all related parents, subsidiaries, and affiliates of Client who may receive or claim reliance upon any Crowe deliverable.

Crowe will provide the services to Client under this Agreement as an independent contractor and not as Client’s partner, agent, employee, or joint venturer under this Agreement. Neither Crowe nor Client will have any right, power or authority to bind the other party.

This engagement letter agreement (the “Agreement”) reflects the entire agreement between the parties relating to the services (or any reports, deliverables or other work product) covered by this Agreement.

The engagement letter and any attachments (including without limitation the attached Crowe Engagement Terms) are to be construed as a single document, with the provisions of each section applicable throughout. This Agreement may not be amended or varied except by a written document signed by each party. No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. It replaces and supersedes any other proposals, correspondence, agreements and understandings, whether written or oral, relating to the services covered by this letter, and each party agrees that in entering this Agreement, it has not relied on any oral or written representations, statements or other information not contained in or incorporated into this Agreement. Any non-disclosure or other confidentiality agreement is replaced and superseded by this Agreement. Each party shall remain obligated to the other party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this Agreement. If any provision (in whole or in part) of this Agreement is found unenforceable or invalid, this will not affect the remainder of the provision or any other provisions in this Agreement, all of which will continue in effect as if the stricken portion had not been included. This Agreement may be executed in two or more actual, scanned, emailed, or electronically copied counterparts, each and all of which together are one and the same instrument. Accurate transmitted copies (transmitted copies are reproduced documents that are sent via mail, delivery, scanning, email, photocopy, facsimile or other process) of the executed Agreement or signature pages only (whether handwritten or electronic signature), will be considered and accepted by each party as documents equivalent to original documents and will be deemed valid, binding and enforceable by and against all parties. This Agreement, including any dispute arising out of or related to this Agreement and the parties’ relationship generally, will be governed and construed in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed in that state, without giving effect to its conflict of laws rules to the extent those rules would require applying another jurisdiction’s laws. * * * * *
We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If the terms of this Agreement and the attached Crowe Engagement Terms are acceptable to you, please sign below and return one copy of this letter at your earliest convenience. Please contact us with any questions or concerns.
(Signature Page Follows)
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ACCEPTANCE
I have reviewed the arrangements outlined above and in the attached “Crowe Engagement Terms,” and I accept on behalf of the Client the terms and conditions as stated. By signing below, I represent and warrant that I am authorized by Client to accept the terms and conditions as stated.

IN WITNESS WHEREOF, Client and Crowe have duly executed this Agreement effective the date first written above.

Crowe LLP and the Engagement Authorized Signer below are licensed or otherwise authorized by the California Board of Accountancy.

City of Cupertino Crowe LLP
ICLM_ExtSignature:1
Signature
ICLM_IntSignature:1
Signature
Ext1Text47176|Client Signatory Name|ICM-NO-ATTRIBUTE|1|0|0 Printed Name
Katherine Lai
Printed Name
Ext1Text12890|Client Signatory Title|ICM-NO-ATTRIBUTE|1|0|0 Title
Partner
Title
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Date
IntDate1
Date
CITY COUNCIL APPROVAL:

The City Council have reviewed the services and Crowe Engagement Terms described in this letter and evaluated the services pursuant to the Client’s policies. After considering all relevant factors, the City Council hereby approve hiring Crowe to provide the services described above.

Authorized Representative of the City Council:

ICLM_ExtSignature:2
Signature
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Crowe Engagement Terms
Crowe wants Client to understand the terms under which Crowe provides its services to Client and the basis under which Crowe determines its fees. These terms are part of the Agreement and apply to all services described in the Agreement as well as all other services provided to Client (collectively, the “Services”), unless and until a separate written agreement is executed by the parties for separate services. Any advice provided by Crowe is not intended to be, and is not, investment advice.

CLIENT’S ASSISTANCE – For Crowe to provide Services effectively and efficiently, Client agrees to provide Crowe timely with information requested and to make available to Crowe any personnel, systems, premises, records, or other information as reasonably requested by Crowe to perform the Services.

Access to such personnel and information are key elements for Crowe’s successful completion of Services and determination of fees. If for any reason this does not occur, a revised fee to reflect additional time or resources required by Crowe will be mutually agreed. Client agrees Crowe will have no responsibility for any delays related to a delay in providing such information to Crowe. Such information will be accurate and complete, and Client will inform Crowe of all significant tax, accounting and financial reporting matters of which Client is aware.

PROFESSIONAL STANDARDS – As a regulated professional services firm, Crowe must follow professional standards when applicable, including the Code of Professional Conduct of the American Institute of Certified Public Accountants (“AICPA”). Thus, if circumstances arise that, in Crowe’s professional judgment, prevent it from completing the engagement, Crowe retains the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product or terminating the engagement.

REPORTS – Any information, advice, recommendations or other content of any memoranda, reports, deliverables, work product, presentations, or other communications Crowe provides under this Agreement (“Reports”), other than Client’s original information, are for Client’s internal use only, consistent with the purpose of the Services. Client will not rely on any draft Report. Unless required by an audit or other attestation professional standard, Crowe will not be required to update any final Report for circumstances of which we become aware or events occurring after delivery.

CONFIDENTIALITY – Except as otherwise permitted by this Agreement or as agreed in writing, neither Crowe nor Client may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Client use of any Crowe work product will be limited to its stated purpose and to Client business use only.

However, Client and Crowe each agree that either party may disclose such information to the extent that it: (i) is or becomes public other than through a breach of this Agreement, (ii) is subsequently received by the recipient from a third party who, to the recipient's knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information, (iii) was known to the recipient at the time of disclosure or is thereafter created independently, (iv) is disclosed as necessary to enforce the recipient's rights under this Agreement, or (v) must be disclosed under applicable law, regulations, legal process or professional standards.

USE OF SUBCONTRACTORS FOR SERVICE DELIVERY – Crowe may engage third-party subcontractors in delivering Services to Client. Third-party subcontractors are not owned or controlled by Crowe (including without limitation Crowe Global member firms). If Crowe engages such a subcontractor to deliver Services to Client, Crowe will execute an agreement for the protection of Client’s confidential information consistent with the provisions of this Agreement. Crowe will be solely responsible for the provision of Services (including those provided by subcontractors) and for the protection of Client’s confidential information. The limitations in this Agreement on Client’s remedies will also apply to any subcontractors.

USE OF THIRD-PARTIES IN CROWE OPERATIONS – Crowe uses third-party providers in the ordinary course of Crowe business operations. Third-party providers used in the ordinary course of Crowe 59 CC 07-07-2022
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business operations include without limitation email providers, cyber-security providers, and data hosting centers. Crowe also uses its subsidiaries (owned and controlled by Crowe) within and outside the United States for various administrative and support roles. Crowe subsidiaries and any third-party providers used in the ordinary course of Crowe business operations will meet the confidentiality and data protection requirements in this Agreement. The limitations in this Agreement on Client’s remedies will also apply to any such third-party providers and Crowe subsidiaries.

CLIENT-REQUIRED CLOUD USAGE – If Client requests that Crowe access files, documents or other information in a cloud-based or web-accessed hosting service or other third-party system accessed via the internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by a third party, or a similar service or website (collectively, “Cloud Storage”), Client will confirm with any third parties assisting with or hosting the Cloud Storage that either such third party or Client (and not Crowe) is responsible for complying with all applicable laws relating to the Cloud Storage and any information contained in the Cloud Storage, providing Crowe access to the information in the Cloud Storage, and protecting the information in the Cloud Storage from any unauthorized access, including without limitation unauthorized access to the information when in transit to or from the Cloud Storage. Client represents that it has authority to provide Crowe access to information in the Cloud Storage and that providing Crowe with such access complies with all applicable laws, regulations, and duties owed to third parties.

DATA PROTECTION – If Crowe holds or uses Client information that can be linked to specific individuals who are Client’s customers ("Personal Data"), Crowe will treat it as confidential as described above and comply with applicable US state and federal law and professional regulations (including, for financial institution clients, the objectives of the Interagency Guidelines Establishing Information Security Standards) in disclosing or using such information to carry out the Services. The parties acknowledge and understand that while Crowe is a service provider as defined by the California Consumer Privacy Act of 2018 and processes information on behalf of Client and pursuant to this Agreement, Crowe retains its independence as required by applicable law and professional standards for purposes of providing attest services and other related professional services. Crowe will not (1) sell Personal Data to a third party, or (2) retain, use or disclose Personal Data for any purpose other than for (a) performing the Services and its obligations on this Agreement, (b) as otherwise set forth in this Agreement, (c) to detect security incidents and protect against fraud or illegal activity, (d) to enhance and develop our products and services, including through machine learning and other similar methods and (e) as necessary to comply with applicable law or professional standards. Crowe has implemented and will maintain physical, electronic and procedural safeguards reasonably designed to (i) protect the security, confidentiality and integrity of the Personal Data, (ii) prevent unauthorized access to or use of the Personal Data, and (iii) provide proper disposal of the Personal Data (collectively, the “Safeguards”). Client warrants (i) that it has the authority to provide the Personal Data to Crowe in connection with the Services, (ii) that Client has processed and provided the Personal Data to Crowe in accordance with applicable law, and (iii) will limit the Personal Data provided to Crowe to Personal Data necessary to perform the Services. To provide the Services, Client may also need to provide Crowe with access to Personal Data consisting of protected health information, financial account numbers, Social Security or other government-issued identification numbers, or other data that, if disclosed without authorization, would trigger notification requirements under applicable law ("Restricted Personal Data"). In the event Client provides Crowe access to Restricted Personal Data, Client will consult with Crowe on appropriate measures (consistent with legal requirements and professional standards applicable to Crowe) to protect the Restricted Personal Data, such as: deleting or masking unnecessary information before making it available to Crowe, using encryption when transferring it to Crowe, or providing it to Crowe only during on-site review on Client’s site. Client will provide Crowe with Restricted Personal Data only in accordance with mutually agreed protective measures. Crowe and Client will each allow opportunistic TLS encryption to provide for secure email communication, and each party will notify the other in writing if it deactivates opportunistic TLS encryption. If Client fails to allow opportunistic TLS encryption, Client agrees that each party may use unencrypted electronic media to correspond or transmit information, and Client further agrees that such use of unencrypted media will not in itself constitute a breach of any confidentiality or other obligation relating to this Agreement. Otherwise, Client and Crowe agree each may use unencrypted electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement. Crowe will reasonably cooperate with Client in 60 CC 07-07-2022
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responding to or addressing any request from a consumer or data subject, a data privacy authority with jurisdiction, or the Client, as necessary to enable Client to comply with its obligations under applicable data protection laws and to the extent related to Personal Data processed by Crowe. Client will promptly reimburse Crowe for any out-of-pocket expenses and professional time (at Crowe’s then-current hourly rates) incurred in connection with providing such cooperation. Client will provide prompt written notice to Crowe (with sufficient detailed instructions) of any request or other act that is required to be performed by Crowe. As appropriate, Crowe shall promptly delete or procure the deletion of the Personal Data, after the cessation of any Services involving the processing of Client’s Personal Data, or otherwise aggregate or de-identify the Personal Data in such a way as to reasonably prevent reidentification. Notwithstanding the forgoing, Crowe may retain a copy of the Personal Data as permitted by applicable law or professional standards, provided that such Personal Data remain subject to the terms of this Agreement. If Crowe uses a third-party provider, Crowe will include terms substantially similar to those set forth in this Data Protection Paragraph into an agreement with the provider.

GENERAL DATA PROTECTION REGULATION COMPLIANCE – If and to the extent that Client provides personal data to Crowe subject to the European Union General Data Protection Regulation (“GDPR”), then in addition to the requirements of the above Data Protection section, this section will apply to such personal data (“EU Personal Data”). The parties agree that for purposes of processing the EU Personal Data, (a) Client will be the “Data Controller” as defined by the GDPR, meaning the organization that determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the “Data Processor” as defined by GDPR, meaning the organization that processes the EU Personal Data on behalf of and under the instructions of the Data Controller; or (c) the parties will be classified as otherwise designated by a supervisory authority with jurisdiction. Client and Crowe each agree to comply with the GDPR requirements applicable to its respective role. Crowe has implemented and will maintain technical and organizational security safeguards reasonably designed to protect the security, confidentiality and integrity of the EU Personal Data. Client represents it has secured all required rights and authority, including consents and notices, to provide such EU Personal Data to Crowe, including without limitation authority to transfer such EU Personal Data to the U.S. or other applicable Country or otherwise make the EU Personal Data available to Crowe, for the duration of and purpose of Crowe providing the Services.

The types of EU Personal Data to be processed include name, contact information, title, and other EU Personal Data that is transferred to Crowe in connection with the Services. The EU Personal Data relates to the data subject categories of individuals connected to Client, Client customers, Client vendors, and Client affiliates or subsidiaries (“Data Subjects”). Crowe will process the EU Personal Data for the following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other documented reasonable instructions provided by Client, and (z) to comply with applicable law. In the event of a Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe, Crowe will promptly notify Client upon knowledge that a breach incident has occurred. Client has instructed Crowe not to contact any Data Subjects directly, unless required by applicable law. In the event that a supervisory authority with jurisdiction makes the determination that Crowe is a data controller, Client will reasonably cooperate with Crowe to enable Crowe to comply with its obligations under GDPR.

INTELLECTUAL PROPERTY - Any Deliverables, works, inventions, working papers, or other work product conceived, made or created by Crowe in rendering the Services under this Agreement (“Work Product”), and all intellectual property rights in such Work Product will be owned exclusively by Crowe.

Further, Crowe will retain exclusive ownership or control of all intellectual property rights in any ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, Reports, or other know-how that it develops, owns or licenses in connection with this Agreement ("Materials"). The foregoing ownership will be without any duty of accounting.

DATA USAGE AND AGGREGATIONS - Client hereby acknowledges and agrees that Crowe may, in its discretion, use any Client information or data provided to Crowe to improve Crowe services and Materials, including without limitation developing new Crowe services and software or other products. Client also agrees that Crowe may, in its discretion, aggregate Client content and data with content and data from other clients, other sources, or third parties (“Data Aggregations”) for purposes including, without limitation, product and service development, commercialization, industry benchmarking, or quality improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other Crowe 61 CC 07-07-2022
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customers or prospects, Crowe will anonymize any Client data or information in a manner sufficient to prevent such other customer or prospect from identifying Client or individuals who are Client customers. All Data Aggregations will be the sole and exclusive property of Crowe.

LEGAL AND REGULATORY CHANGE – Crowe may periodically communicate to Client changes in laws, rules or regulations. However, Client has not engaged Crowe, and Crowe does not undertake an obligation, to advise Client of changes in (a) laws, rules, regulations, industry or market conditions, or (b) Client’s own business practices or other circumstances (except to the extent required by professional standards). The scope of Services and the fees for Services are based on current laws and regulations. If changes in laws or regulations change Client’s requirements or the scope of the Services, Crowe’s fees will be modified to a mutually agreed amount to reflect the changed level of Crowe’s effort.

PUBLICATION – Client agrees to obtain Crowe’s specific permission before using any Report or Crowe work product or Crowe’s firm’s name in a published document, and Client agrees to submit to Crowe copies of such documents to obtain Crowe’s permission before they are filed or published.

CLIENT REFERENCE – From time to time Crowe is requested by prospective clients to provide references for Crowe service offerings. Client agrees that Crowe may use Client’s name and generally describe the nature of Crowe’s engagement(s) with Client in marketing to prospects, and Crowe may also provide prospects with contact information for Client personnel familiar with Crowe’s Services.

NO PUNITIVE OR CONSEQUENTIAL DAMAGES – Any liability of Crowe will not include any consequential, special, incidental, indirect, punitive, or exemplary damages or loss, nor any lost profits, goodwill, savings, or business opportunity, even if Crowe had reason to know of the possibility of such damages.

INDEMNIFICATION BY CROWE –
(a) To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Crowe shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, and volunteers (“Indemnitees”), from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) in connection with a third-party claim, arising from the injury or death of a natural person or damage to personal tangible property to the extent Caused by Crowe.
(b) Crowe hereby agrees to defend, indemnify and hold Client harmless from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), and actual damages (collectively "Liabilities") asserted by a third party against Client to the extent such Liabilities result from the infringement by the Deliverables (excluding any third party software) of such third party's U.S. patents issued as of the date of the Agreement, trademarks or copyrights. The preceding indemnification shall not apply to any infringement to the extent arising out of (a) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by Crowe or other than for Client's internal business purposes; (b) any alteration, modification or revision of the Deliverables not expressly agreed to in writing by Crowe; (c) any aspect performed according to Client’s specifications or incorporating Client’s Intellectual Property in the creation of the Deliverable; or (d) the combination of the Deliverables with materials not supplied or approved by Crowe. In case any of the Deliverables or any portion thereof is held, or in Crowe's reasonable opinion is likely to be held, to constitute infringement, Crowe may, within a reasonable time, at its option either: (i) secure for Client the right to continue the use of such infringing item; or (ii) replace, at Crowe's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Crowe is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, Client shall return the allegedly infringing item to Crowe, and Crowe's sole liability shall be to refund to Client the amount paid to Crowe for such item; provided that the foregoing shall not be construed to limit Crowe's indemnification obligation set forth above. The provisions of this paragraph state Crowe's entire liability and Client's sole and exclusive remedy with respect to any infringement or claim of infringement. 62 CC 07-07-2022
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Crowe agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Crowe in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.

This Section shall survive termination of the Agreement.

LIMIT OF LIABILITY – Except where it is judicially determined that Crowe performed its Services with recklessness or willful misconduct, Crowe’s liability will not exceed three (3x) times fees paid by Client to Crowe for the portion of the work giving rise to liability. A claim for a return of three (3X) times fees paid is the exclusive remedy for any damages. This limit of liability will apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted, including, without limitation, to claims based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law.

This limit of liability will also apply after this Agreement.

NO TRANSFER OR ASSIGNMENT OF CLAIMS – No claim against Crowe, or any recovery from or against Crowe, may be sold, assigned or otherwise transferred, in whole or in part.

TIME LIMIT ON CLAIMS – In no event will any action against Crowe, arising from or relating to this Agreement or the Services provided by Crowe relating to this engagement, be brought after the earlier of 1) one (1) year after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose.

RESPONSE TO LEGAL PROCESS – If Crowe is requested by subpoena, request for information, or through some other legal process to produce documents or testimony pertaining to Client or Crowe’s Services, and Crowe is not named as a party in the applicable proceeding, then Client will reimburse Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees, Crowe incurs in responding to such request.

MEDIATION – If a dispute arises, in whole or in part, out of or related to this engagement, or after the date of this agreement, between Client or any of Client’s affiliates or principals and Crowe, and if the dispute cannot be settled through negotiation, Client and Crowe agree first to try, in good faith, to settle the dispute by mediation administered by the American Arbitration Association, under its mediation rules for professional accounting and related services disputes, before resorting to litigation or any other dispute-resolution procedure. The results of mediation will be binding only upon agreement of each party to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in Cupertino, California.

JURY TRIAL WAIVER – FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES,

THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE

MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY.

HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS

JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES’

RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING “ARBITRATION.”
ARBITRATION – If any court rules or finds that the JURY TRIAL WAIVER section is not enforceable, then any dispute between the parties relating to or arising from this Agreement or the parties’ relationship 63 CC 07-07-2022
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generally will be settled by binding arbitration in Chicago, Illinois (or a location agreed in writing by the parties). Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of this Section, will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). The arbitration will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc. (“JAMS”), pursuant to its Streamlined Arbitration Rules & Procedures or such other rules or procedures as the parties may agree in writing. In the event of a conflict between those rules and this Agreement, this Agreement will control. The parties may alter each of these rules by written agreement. If a party has a basis for injunctive relief, this paragraph will not preclude a party seeking and obtaining injunctive relief in a court of proper jurisdiction. The parties will agree within a reasonable period of time after notice is made of initiating the arbitration process whether to use one or three arbitrators, and if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. In any event the arbitrator(s) must be retired federal judges or attorneys with at least 15 years commercial law experience and no arbitrator may be appointed unless he or she has agreed to these procedures. If the parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. Discovery will be permitted only as authorized by the arbitrator(s), and as a rule, the arbitrator(s) will not permit discovery except upon a showing of substantial need by a party. To the extent the arbitrator(s) permit discovery as to liability, the arbitrator(s) will also permit discovery as to causation, reliance, and damages. The arbitrator(s) will not permit a party to take more than six depositions, and no depositions may exceed five hours. The arbitrator(s) will have no power to make an award inconsistent with this Agreement. The arbitrator(s) will rule on a summary basis where possible, including without limitation on a motion to dismiss basis or on a summary judgment basis. The arbitrator(s) may enter such prehearing orders as may be appropriate to ensure a fair hearing. The hearing will be held within one year of the initiation of arbitration, or less, and the hearing must be held on continuous business days until concluded. The hearing must be concluded within ten (10) business days absent written agreement by the parties to the contrary. The time limits in this section are not jurisdictional. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may award attorney fees and costs to the prevailing party, and in the event of a split or partial award, the arbitrator(s) may award costs or attorney fees in an equitable manner. Any award by the arbitrator(s) will be accompanied by a reasoned opinion describing the basis of the award. Any prior agreement regarding arbitration entered by the parties is replaced and superseded by this agreement. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. All aspects of the arbitration will be treated by the parties and the arbitrator(s) as confidential.

NOTIFICATION OF NON-LICENSEE OWNERSHIP (For California Engagements) – Crowe (“the Firm”) and certain owners of the Firm are licensed by the California State Board of Accountancy. However, the Firm has owners not licensed by the California State Board of Accountancy who may provide Services under this agreement. If Client has any questions regarding licensure of the personnel performing Services under this engagement, please do not hesitate to contact Crowe.

NON‑SOLICITATION – Each party acknowledges that it has invested substantially in recruiting, training and developing the personnel who render services with respect to the material aspects of the engagement (“Key Personnel”). The parties acknowledge that Key Personnel have knowledge of trade secrets or confidential information of their employers that may be of substantial benefit to the other party.

The parties acknowledge that each business would be materially harmed if the other party was able to directly employ Key Personnel. Therefore, the parties agree that during the period of this Agreement and for one (1) year after its expiration or termination, neither party will solicit Key Personnel of the other party for employment or hire the Key Personnel of the other party without that party’s written consent unless the hiring or engaging party pays to the other party a fee equal to the hired or engaged Key Personnel’s compensation for the prior twelve-month period with the other party.

CROWE AND EQUAL OPPORTUNITY – Crowe abides by the principles of equal employment opportunity, including without limitation the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).

These regulations prohibit discrimination against qualified individuals based on their status as protected 64 CC 07-07-2022
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veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Crowe also abides by 29 CFR Part 471, Appendix A to Subpart A. The parties agree that the notice in this paragraph does not create any enforceable rights for any firm, organization, or individual.

CROWE GLOBAL NETWORK – Crowe LLP and its subsidiaries are independent members of Crowe Global, a Swiss organization. “Crowe” is the brand used by the Crowe Global network and its member firms, but it is not a worldwide partnership. Crowe Global and each of its members are separate and independent legal entities and do not obligate each other. Crowe LLP and its subsidiaries are not responsible or liable for any acts or omissions of Crowe Global or any other Crowe Global members, and Crowe LLP and its subsidiaries specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Global or any other Crowe Global member. Crowe Global does not render any professional services and does not have an ownership or partnership interest in Crowe LLP or any other member. Crowe Global and its other members are not responsible or liable for any acts or omissions of Crowe LLP and its subsidiaries and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe LLP and its subsidiaries. Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global.
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Report on the Firm’s System of Quality Control
December 5, 2019
To the Partners of Crowe LLP
and the National Peer Review Committee
We have reviewed the system of quality control for the accounting and auditing practice of Crowe LLP (the firm) applicable to engagements not subject to PCAOB permanent inspection in effect for the year ended March 31, 2019. Our peer review was conducted in accordance with the Standards for Performing and Reporting on Peer Reviews established by the Peer Review Board of the American Institute of Certified Public Accountants (Standards).

A summary of the nature, objectives, scope, limitations of, and the procedures performed in a System Review as described in the Standards may be found at www.aicpa.org/prsummary. The summary also includes an explanation of how engagements identified as not performed or reported in conformity with applicable professional standards, if any, are evaluated by a peer reviewer to determine a peer review rating.

Firm’s Responsibility
The firm is responsible for designing a system of quality control and complying with it to provide the firm with reasonable assurance of performing and reporting in conformity with applicable professional standards in all material respects. The firm is also responsible for evaluating actions to promptly remediate engagements deemed as not performed or reported in conformity with professional standards, when appropriate, and for remediating weaknesses in its system of quality control, ifany.

Peer Reviewer’s Responsibility
Our responsibility is to express an opinion on the design of the system of quality control and the firm’s compliance therewith based on our review.

Required Selections and Considerations
Engagements selected for review included engagements performed under Government Auditing Standards, including compliance audits under the Single Audit Act; audits of employee benefit plans; audits performed under FDICIA; audits of broker-dealers; and examinations of service organizations [SOC 2 engagements].

As a part of our peer review, we considered reviews by regulatory entities as communicated by the firm, if applicable, in determining the nature and extent of our procedures.

Opinion
In our opinion, the system of quality control for the accounting and auditing practice of Crowe LLP applicable to engagements not subject to PCAOB permanent inspection in effect for the year ended March 31, 2019, has been suitably designed and complied with to provide the firm with reasonable assurance of performing and reporting in conformity with applicable professional standards in all material respects. Firms can receive a rating of pass, pass with deficiency(ies) or fail. Crowe LLP has received a peer review rating of pass.

Cherry Bekaert LLP
200 South 10th Street, Suite 900, Richmond, VA 23219 | P 804.673.5700 | cbh.com 66 CC 07-07-2022
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December 12, 2019
James Powers
Crowe, LLP
225 W Wacker DR Ste 2600
Chicago, IL 60606-1228
Dear James Powers:

It is my pleasure to notify you that on December 12, 2019, the National Peer Review Committee accepted the report on the most recent System Review of your firm. The due date for your next review is September 30, 2022. This is the date by which all review documents should be completed and submitted to the administering entity.

As you know, the report had a peer review rating of pass. The Committee asked me to convey its congratulations to the firm.

Thank you for your cooperation.

Sincerely,
Michael Fawley Chair, National PRC [email protected]
+1.919.402.4502
National Peer Review Committee cc: Samuel Johnson, Scot Ivey Firm Number: 900010014904 Review Number: 564789
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Crowe LLP
Independent Member Crowe Global
650 Town Center Drive, Suite 740,
Costa Mesa, CA 92626-7192
Tel 714-668-1234
Fax 714-668-1235
www.crowe.com
June 7, 2022
To the Honorable Mayor and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Dear Ladies and Gentlemen:

This letter confirms the arrangements for Crowe LLP (“Crowe” or “us” or “we” or “our”) to provide the professional services discussed in this letter to City of Cupertino, California (“you”, “your” or “Client”). The agreement for auditing services dated June 7, 2022 between the Client and Crowe (“the Agreement”) is an integral part of this letter, and such terms are incorporated herein.

Crowe will apply agreed upon procedures, as discussed in Appendix A, solely to assist you with respect to the Appropriations Limit Worksheet (“Worksheet”) of Client.

PROFESSIONAL SERVICES
Our Responsibilities
The agreed‑upon procedures will be performed in accordance with attestation standards established by the American Institute of Certified Public Accountants.

We have no obligation to perform any procedures beyond those agreed to by you and have been acknowledged to be appropriate for your purposes. If we were to perform additional procedures, other matters might come to our attention that would be reported to you. It is understood that we will prepare a report reflecting our findings of the procedures for use by you. We make no representations as to the adequacy of these procedures for your purpose.

If you decide that additional procedures are needed, we will discuss those with you. It is customary for us to document such revisions by an addendum to this letter. If you wish to add specified users of the report, we will require that you provide, at the conclusion of the engagement, written representation that you have obtained the specified users’ agreement to the procedures and acknowledgement that the procedures performed are appropriate for their purposes.

The agreed‑upon procedures do not contemplate obtaining the understanding of internal control or assessing control risk, tests of accounting records and responses to inquiries by obtaining corroborating evidential matter, and certain other procedures ordinarily performed during an examination. Thus, this engagement does not provide assurance that we will become aware of significant matters that would be disclosed in an examination. Client agrees not to rely on our engagement to disclose errors, fraud or illegal acts that may exist. However, we will inform you of any significant errors that may come to our attention. Our engagement will not enable us to address legal or regulatory matters or abuses of management discretion, which matters should be discussed by you with your legal counsel. You are also responsible for the accuracy and completeness of the information provided to Crowe for purposes of this engagement and for timely updating such information. Because of the importance of such information to 68 CC 07-07-2022
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our engagement, you agree to waive any claim against Crowe and its personnel for any liability and costs relating to or arising from any inaccuracy or incompleteness of information provided to us for purposes of this engagement.

Our procedures and work product are intended for the benefit and use of you. This engagement will not be planned or conducted in contemplation of reliance by any other party or with respect to any specific transaction and is not intended to benefit or influence any other party. Therefore, items of possible interest to a third party may not be specifically addressed or matters may exist that could be assessed differently by a third party. The working papers for this engagement are the property of Crowe and constitute confidential information.

If, for any reason, we are unable to complete the agreed-upon procedures, we will not issue a report as a result of this engagement.

Client’s Responsibilities
The agreed upon procedures are listed in Attachment A. You agree to the procedures included in Attachment A and acknowledge that the procedures are appropriate for the intended purpose of the engagement.

You agree to provide a written representation letter at the conclusion of the engagement. Because of the importance of the written representations to this engagement, you agree to release Crowe and its personnel from any liability and costs relating to our services under this letter attributable to any misrepresentations by you, the engaging party.

The Client is responsible for providing to us, on a timely basis, all information of which you are aware that is relevant to this agreed-upon procedures engagement. The Client is also responsible for providing such other additional information we may request for the purpose of this engagement, and unrestricted access to persons within the Client from whom we determine it necessary to perform the agreed-upon procedures.

Other Matters
Although the actual language of our report may change as a result of our procedures, we presently expect our independent accountant’s report on the agreed-upon procedures to read as follows:

We have performed the procedures enumerated in Appendix A on the Appropriations Limit Worksheet (“Worksheet”) of the City of Cupertino, California (the “City”), related to the City’s compliance with Section 1.5 of Article XIIIB of the California Constitution during the period ending June 30, 2022. The City’s management is responsible for the Worksheet.

The City has agreed to and acknowledged that the procedures performed are appropriate to meet the intended purpose of assisting users in understanding the Worksheet. We make no representation regarding the appropriateness of the procedures either for the purpose for which this report has been requested or for any other purpose. This report may not be suitable for any other purpose. The procedures performed may not address all the items of interest to a user of this report and may not meet the needs of all users of this report and, as such, users are responsible for determining whether the procedures performed are appropriate for their purposes.

An agreed-upon procedures engagement involves performing specific procedures that the engaging party has agreed to and acknowledged to be appropriate for the intended purpose of the engagement and reporting on findings based on the procedures performed.

The procedures and the associated findings are contained in Appendix A. 69 CC 07-07-2022
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We were engaged by the City to perform this agreed-upon procedures engagement and conducted our engagement in accordance with attestation standards established by the American Institute of Certified Public Accountants. We were not engaged to and did not conduct an examination or review, the objective of which would be the expression of an opinion or conclusion, respectively, on the Worksheet. Accordingly, we do not express such an opinion or conclusion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.

We are required to be independent of the City and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements related to our agreed-upon procedures engagement.

FEES
Fees for this engagement and related terms are included in the Agreement.

MISCELLANEOUS
In delivering services to Client, Crowe may use subsidiaries owned and controlled by Crowe within and outside the United States. Crowe subsidiaries are subject to the same information security policies and requirements as Crowe LLP and will meet the requirements set forth in the confidentiality and data protection provisions of this Agreement. For purposes of this Miscellaneous section, the Acceptance section below, and all of the Crowe Engagement Terms, “Client” will mean the entity(ies) defined in the first paragraph of this letter and will also include all related parents, subsidiaries, and affiliates of Client who may receive or claim reliance upon any Crowe deliverable.

Crowe will provide the services to Client under this Agreement as an independent contractor and not as Client’s partner, agent, employee, or joint venturer under this Agreement. Neither Crowe nor Client will have any right, power or authority to bind the other party.

This engagement letter agreement (the “Agreement”) reflects the entire agreement between the parties relating to the services (or any reports, deliverables or other work product) covered by this Agreement.

The engagement letter and any attachments (including without limitation the attached Crowe Engagement Terms) are to be construed as a single document, with the provisions of each section applicable throughout. This Agreement may not be amended or varied except by a written document signed by each party. No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. It replaces and supersedes any other proposals, correspondence, agreements and understandings, whether written or oral, relating to the services covered by this letter, and each party agrees that in entering this Agreement, it has not relied on any oral or written representations, statements or other information not contained in or incorporated into this Agreement. Any non-disclosure or other confidentiality agreement is replaced and superseded by this Agreement. Each party shall remain obligated to the other party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this Agreement. If any provision (in whole or in part) of this Agreement is found unenforceable or invalid, this will not affect the remainder of the provision or any other provisions in this Agreement, all of which will continue in effect as if the stricken portion had not been included. This Agreement may be executed in two or more actual, scanned, emailed, or electronically copied counterparts, each and all of which together are one and the same instrument. Accurate transmitted copies (transmitted copies are reproduced documents that are sent via mail, delivery, scanning, email, photocopy, facsimile or other process) of the executed Agreement or signature pages only (whether handwritten or electronic signature), will be considered and accepted by each party as documents equivalent to original documents and will be deemed valid, binding and enforceable by and against all parties. This Agreement, including any dispute arising out of or related to this Agreement and the parties’ relationship generally, will be governed and construed in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed in that state, without giving effect to its conflict of laws rules to the extent those rules would require applying another jurisdiction’s laws. 70 CC 07-07-2022
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* * * * *
We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If the terms of this Agreement and the attached Crowe Engagement Terms are acceptable to you, please sign below and return one copy of this letter at your earliest convenience. Please contact us with any questions or concerns.
(Signature Page Follows)
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ACCEPTANCE
I have reviewed the arrangements outlined above and in the attached “Crowe Engagement Terms,” and I accept on behalf of the Client the terms and conditions as stated. By signing below, I represent and warrant that I am authorized by Client to accept the terms and conditions as stated.

IN WITNESS WHEREOF, Client and Crowe have duly executed this Agreement effective the date first written above.

Crowe LLP and the Engagement Authorized Signer below are licensed or otherwise authorized by the California Board of Accountancy.

City of Cupertino Crowe LLP
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Katherine Lai
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Partner
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CITY COUNCIL APPROVAL:

The City Council have reviewed the services and Crowe Engagement Terms described in this letter and evaluated the services pursuant to the Client’s policies. After considering all relevant factors, the City Council hereby approve hiring Crowe to provide the services described above.

Authorized Representative of the City Council:

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Crowe Engagement Terms
Crowe wants Client to understand the terms under which Crowe provides its services to Client and the basis under which Crowe determines its fees. These terms are part of the Agreement and apply to all services described in the Agreement as well as all other services provided to Client (collectively, the “Services”), unless and until a separate written agreement is executed by the parties for separate services. Any advice provided by Crowe is not intended to be, and is not, investment advice.

CLIENT’S ASSISTANCE – For Crowe to provide Services effectively and efficiently, Client agrees to provide Crowe timely with information requested and to make available to Crowe any personnel, systems, premises, records, or other information as reasonably requested by Crowe to perform the Services.

Access to such personnel and information are key elements for Crowe’s successful completion of Services and determination of fees. If for any reason this does not occur, a revised fee to reflect additional time or resources required by Crowe will be mutually agreed. Client agrees Crowe will have no responsibility for any delays related to a delay in providing such information to Crowe. Such information will be accurate and complete, and Client will inform Crowe of all significant tax, accounting and financial reporting matters of which Client is aware.

PROFESSIONAL STANDARDS – As a regulated professional services firm, Crowe must follow professional standards when applicable, including the Code of Professional Conduct of the American Institute of Certified Public Accountants (“AICPA”). Thus, if circumstances arise that, in Crowe’s professional judgment, prevent it from completing the engagement, Crowe retains the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product or terminating the engagement.

REPORTS – Any information, advice, recommendations or other content of any memoranda, reports, deliverables, work product, presentations, or other communications Crowe provides under this Agreement (“Reports”), other than Client’s original information, are for Client’s internal use only, consistent with the purpose of the Services. Client will not rely on any draft Report. Unless required by an audit or other attestation professional standard, Crowe will not be required to update any final Report for circumstances of which we become aware or events occurring after delivery.

CONFIDENTIALITY – Except as otherwise permitted by this Agreement or as agreed in writing, neither Crowe nor Client may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Client use of any Crowe work product will be limited to its stated purpose and to Client business use only.

However, Client and Crowe each agree that either party may disclose such information to the extent that it: (i) is or becomes public other than through a breach of this Agreement, (ii) is subsequently received by the recipient from a third party who, to the recipient's knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information, (iii) was known to the recipient at the time of disclosure or is thereafter created independently, (iv) is disclosed as necessary to enforce the recipient's rights under this Agreement, or (v) must be disclosed under applicable law, regulations, legal process or professional standards.

USE OF SUBCONTRACTORS FOR SERVICE DELIVERY – Crowe may engage third-party subcontractors in delivering Services to Client. Third-party subcontractors are not owned or controlled by Crowe (including without limitation Crowe Global member firms). If Crowe engages such a subcontractor to deliver Services to Client, Crowe will execute an agreement for the protection of Client’s confidential information consistent with the provisions of this Agreement. Crowe will be solely responsible for the provision of Services (including those provided by subcontractors) and for the protection of Client’s confidential information. The limitations in this Agreement on Client’s remedies will also apply to any subcontractors.

USE OF THIRD-PARTIES IN CROWE OPERATIONS – Crowe uses third-party providers in the ordinary course of Crowe business operations. Third-party providers used in the ordinary course of Crowe 73 CC 07-07-2022
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business operations include without limitation email providers, cyber-security providers, and data hosting centers. Crowe also uses its subsidiaries (owned and controlled by Crowe) within and outside the United States for various administrative and support roles. Crowe subsidiaries and any third-party providers used in the ordinary course of Crowe business operations will meet the confidentiality and data protection requirements in this Agreement. The limitations in this Agreement on Client’s remedies will also apply to any such third-party providers and Crowe subsidiaries.

CLIENT-REQUIRED CLOUD USAGE – If Client requests that Crowe access files, documents or other information in a cloud-based or web-accessed hosting service or other third-party system accessed via the internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by a third party, or a similar service or website (collectively, “Cloud Storage”), Client will confirm with any third parties assisting with or hosting the Cloud Storage that either such third party or Client (and not Crowe) is responsible for complying with all applicable laws relating to the Cloud Storage and any information contained in the Cloud Storage, providing Crowe access to the information in the Cloud Storage, and protecting the information in the Cloud Storage from any unauthorized access, including without limitation unauthorized access to the information when in transit to or from the Cloud Storage. Client represents that it has authority to provide Crowe access to information in the Cloud Storage and that providing Crowe with such access complies with all applicable laws, regulations, and duties owed to third parties.

DATA PROTECTION – If Crowe holds or uses Client information that can be linked to specific individuals who are Client’s customers ("Personal Data"), Crowe will treat it as confidential as described above and comply with applicable US state and federal law and professional regulations (including, for financial institution clients, the objectives of the Interagency Guidelines Establishing Information Security Standards) in disclosing or using such information to carry out the Services. The parties acknowledge and understand that while Crowe is a service provider as defined by the California Consumer Privacy Act of 2018 and processes information on behalf of Client and pursuant to this Agreement, Crowe retains its independence as required by applicable law and professional standards for purposes of providing attest services and other related professional services. Crowe will not (1) sell Personal Data to a third party, or (2) retain, use or disclose Personal Data for any purpose other than for (a) performing the Services and its obligations on this Agreement, (b) as otherwise set forth in this Agreement, (c) to detect security incidents and protect against fraud or illegal activity, (d) to enhance and develop our products and services, including through machine learning and other similar methods and (e) as necessary to comply with applicable law or professional standards. Crowe has implemented and will maintain physical, electronic and procedural safeguards reasonably designed to (i) protect the security, confidentiality and integrity of the Personal Data, (ii) prevent unauthorized access to or use of the Personal Data, and (iii) provide proper disposal of the Personal Data (collectively, the “Safeguards”). Client warrants (i) that it has the authority to provide the Personal Data to Crowe in connection with the Services, (ii) that Client has processed and provided the Personal Data to Crowe in accordance with applicable law, and (iii) will limit the Personal Data provided to Crowe to Personal Data necessary to perform the Services. To provide the Services, Client may also need to provide Crowe with access to Personal Data consisting of protected health information, financial account numbers, Social Security or other government-issued identification numbers, or other data that, if disclosed without authorization, would trigger notification requirements under applicable law ("Restricted Personal Data"). In the event Client provides Crowe access to Restricted Personal Data, Client will consult with Crowe on appropriate measures (consistent with legal requirements and professional standards applicable to Crowe) to protect the Restricted Personal Data, such as: deleting or masking unnecessary information before making it available to Crowe, using encryption when transferring it to Crowe, or providing it to Crowe only during on-site review on Client’s site. Client will provide Crowe with Restricted Personal Data only in accordance with mutually agreed protective measures. Crowe and Client will each allow opportunistic TLS encryption to provide for secure email communication, and each party will notify the other in writing if it deactivates opportunistic TLS encryption. If Client fails to allow opportunistic TLS encryption, Client agrees that each party may use unencrypted electronic media to correspond or transmit information, and Client further agrees that such use of unencrypted media will not in itself constitute a breach of any confidentiality or other obligation relating to this Agreement. Otherwise, Client and Crowe agree each may use unencrypted electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement. Crowe will reasonably cooperate with Client in 74 CC 07-07-2022
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responding to or addressing any request from a consumer or data subject, a data privacy authority with jurisdiction, or the Client, as necessary to enable Client to comply with its obligations under applicable data protection laws and to the extent related to Personal Data processed by Crowe. Client will promptly reimburse Crowe for any out-of-pocket expenses and professional time (at Crowe’s then-current hourly rates) incurred in connection with providing such cooperation. Client will provide prompt written notice to Crowe (with sufficient detailed instructions) of any request or other act that is required to be performed by Crowe. As appropriate, Crowe shall promptly delete or procure the deletion of the Personal Data, after the cessation of any Services involving the processing of Client’s Personal Data, or otherwise aggregate or de-identify the Personal Data in such a way as to reasonably prevent reidentification. Notwithstanding the forgoing, Crowe may retain a copy of the Personal Data as permitted by applicable law or professional standards, provided that such Personal Data remain subject to the terms of this Agreement. If Crowe uses a third-party provider, Crowe will include terms substantially similar to those set forth in this Data Protection Paragraph into an agreement with the provider.

GENERAL DATA PROTECTION REGULATION COMPLIANCE – If and to the extent that Client provides personal data to Crowe subject to the European Union General Data Protection Regulation (“GDPR”), then in addition to the requirements of the above Data Protection section, this section will apply to such personal data (“EU Personal Data”). The parties agree that for purposes of processing the EU Personal Data, (a) Client will be the “Data Controller” as defined by the GDPR, meaning the organization that determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the “Data Processor” as defined by GDPR, meaning the organization that processes the EU Personal Data on behalf of and under the instructions of the Data Controller; or (c) the parties will be classified as otherwise designated by a supervisory authority with jurisdiction. Client and Crowe each agree to comply with the GDPR requirements applicable to its respective role. Crowe has implemented and will maintain technical and organizational security safeguards reasonably designed to protect the security, confidentiality and integrity of the EU Personal Data. Client represents it has secured all required rights and authority, including consents and notices, to provide such EU Personal Data to Crowe, including without limitation authority to transfer such EU Personal Data to the U.S. or other applicable Country or otherwise make the EU Personal Data available to Crowe, for the duration of and purpose of Crowe providing the Services.

The types of EU Personal Data to be processed include name, contact information, title, and other EU Personal Data that is transferred to Crowe in connection with the Services. The EU Personal Data relates to the data subject categories of individuals connected to Client, Client customers, Client vendors, and Client affiliates or subsidiaries (“Data Subjects”). Crowe will process the EU Personal Data for the following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other documented reasonable instructions provided by Client, and (z) to comply with applicable law. In the event of a Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe, Crowe will promptly notify Client upon knowledge that a breach incident has occurred. Client has instructed Crowe not to contact any Data Subjects directly, unless required by applicable law. In the event that a supervisory authority with jurisdiction makes the determination that Crowe is a data controller, Client will reasonably cooperate with Crowe to enable Crowe to comply with its obligations under GDPR.

INTELLECTUAL PROPERTY - Any Deliverables, works, inventions, working papers, or other work product conceived, made or created by Crowe in rendering the Services under this Agreement (“Work Product”), and all intellectual property rights in such Work Product will be owned exclusively by Crowe.

Further, Crowe will retain exclusive ownership or control of all intellectual property rights in any ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, Reports, or other know-how that it develops, owns or licenses in connection with this Agreement ("Materials"). The foregoing ownership will be without any duty of accounting.

DATA USAGE AND AGGREGATIONS - Client hereby acknowledges and agrees that Crowe may, in its discretion, use any Client information or data provided to Crowe to improve Crowe services and Materials, including without limitation developing new Crowe services and software or other products. Client also agrees that Crowe may, in its discretion, aggregate Client content and data with content and data from other clients, other sources, or third parties (“Data Aggregations”) for purposes including, without limitation, product and service development, commercialization, industry benchmarking, or quality improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other Crowe 75 CC 07-07-2022
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customers or prospects, Crowe will anonymize any Client data or information in a manner sufficient to prevent such other customer or prospect from identifying Client or individuals who are Client customers. All Data Aggregations will be the sole and exclusive property of Crowe.

LEGAL AND REGULATORY CHANGE – Crowe may periodically communicate to Client changes in laws, rules or regulations. However, Client has not engaged Crowe, and Crowe does not undertake an obligation, to advise Client of changes in (a) laws, rules, regulations, industry or market conditions, or (b) Client’s own business practices or other circumstances (except to the extent required by professional standards). The scope of Services and the fees for Services are based on current laws and regulations. If changes in laws or regulations change Client’s requirements or the scope of the Services, Crowe’s fees will be modified to a mutually agreed amount to reflect the changed level of Crowe’s effort.

PUBLICATION – Client agrees to obtain Crowe’s specific permission before using any Report or Crowe work product or Crowe’s firm’s name in a published document, and Client agrees to submit to Crowe copies of such documents to obtain Crowe’s permission before they are filed or published.

CLIENT REFERENCE – From time to time Crowe is requested by prospective clients to provide references for Crowe service offerings. Client agrees that Crowe may use Client’s name and generally describe the nature of Crowe’s engagement(s) with Client in marketing to prospects, and Crowe may also provide prospects with contact information for Client personnel familiar with Crowe’s Services.

NO PUNITIVE OR CONSEQUENTIAL DAMAGES – Any liability of Crowe will not include any consequential, special, incidental, indirect, punitive, or exemplary damages or loss, nor any lost profits, goodwill, savings, or business opportunity, even if Crowe had reason to know of the possibility of such damages.

INDEMNIFICATION BY CROWE –
(a) To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Crowe shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, and volunteers (“Indemnitees”), from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) in connection with a third-party claim, arising from the injury or death of a natural person or damage to personal tangible property to the extent Caused by Crowe.
(b) Crowe hereby agrees to defend, indemnify and hold Client harmless from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), and actual damages (collectively "Liabilities") asserted by a third party against Client to the extent such Liabilities result from the infringement by the Deliverables (excluding any third party software) of such third party's U.S. patents issued as of the date of the Agreement, trademarks or copyrights. The preceding indemnification shall not apply to any infringement to the extent arising out of (a) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by Crowe or other than for Client's internal business purposes; (b) any alteration, modification or revision of the Deliverables not expressly agreed to in writing by Crowe; (c) any aspect performed according to Client’s specifications or incorporating Client’s Intellectual Property in the creation of the Deliverable; or (d) the combination of the Deliverables with materials not supplied or approved by Crowe. In case any of the Deliverables or any portion thereof is held, or in Crowe's reasonable opinion is likely to be held, to constitute infringement, Crowe may, within a reasonable time, at its option either: (i) secure for Client the right to continue the use of such infringing item; or (ii) replace, at Crowe's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Crowe is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, Client shall return the allegedly infringing item to Crowe, and Crowe's sole liability shall be to refund to Client the amount paid to Crowe for such item; provided that the foregoing shall not be construed to limit Crowe's indemnification obligation set forth above. The provisions of this paragraph state Crowe's entire liability and Client's sole and exclusive remedy with respect to any infringement or claim of infringement. 76 CC 07-07-2022
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Crowe agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Crowe in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.

This Section shall survive termination of the Agreement.

LIMIT OF LIABILITY – Except where it is judicially determined that Crowe performed its Services with recklessness or willful misconduct, Crowe’s liability will not exceed three (3x) times fees paid by Client to Crowe for the portion of the work giving rise to liability. A claim for a return of three (3X) times fees paid is the exclusive remedy for any damages. This limit of liability will apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted, including, without limitation, to claims based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law.

This limit of liability will also apply after this Agreement.

NO TRANSFER OR ASSIGNMENT OF CLAIMS – No claim against Crowe, or any recovery from or against Crowe, may be sold, assigned or otherwise transferred, in whole or in part.

TIME LIMIT ON CLAIMS – In no event will any action against Crowe, arising from or relating to this Agreement or the Services provided by Crowe relating to this engagement, be brought after the earlier of 1) one (1) year after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose.

RESPONSE TO LEGAL PROCESS – If Crowe is requested by subpoena, request for information, or through some other legal process to produce documents or testimony pertaining to Client or Crowe’s Services, and Crowe is not named as a party in the applicable proceeding, then Client will reimburse Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees, Crowe incurs in responding to such request.

MEDIATION – If a dispute arises, in whole or in part, out of or related to this engagement, or after the date of this agreement, between Client or any of Client’s affiliates or principals and Crowe, and if the dispute cannot be settled through negotiation, Client and Crowe agree first to try, in good faith, to settle the dispute by mediation administered by the American Arbitration Association, under its mediation rules for professional accounting and related services disputes, before resorting to litigation or any other dispute-resolution procedure. The results of mediation will be binding only upon agreement of each party to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in Cupertino, California.

JURY TRIAL WAIVER – FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES,

THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE

MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY.

HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS

JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES’

RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING “ARBITRATION.”
ARBITRATION – If any court rules or finds that the JURY TRIAL WAIVER section is not enforceable, then any dispute between the parties relating to or arising from this Agreement or the parties’ relationship 77 CC 07-07-2022
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generally will be settled by binding arbitration in Chicago, Illinois (or a location agreed in writing by the parties). Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of this Section, will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). The arbitration will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc. (“JAMS”), pursuant to its Streamlined Arbitration Rules & Procedures or such other rules or procedures as the parties may agree in writing. In the event of a conflict between those rules and this Agreement, this Agreement will control. The parties may alter each of these rules by written agreement. If a party has a basis for injunctive relief, this paragraph will not preclude a party seeking and obtaining injunctive relief in a court of proper jurisdiction. The parties will agree within a reasonable period of time after notice is made of initiating the arbitration process whether to use one or three arbitrators, and if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. In any event the arbitrator(s) must be retired federal judges or attorneys with at least 15 years commercial law experience and no arbitrator may be appointed unless he or she has agreed to these procedures. If the parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. Discovery will be permitted only as authorized by the arbitrator(s), and as a rule, the arbitrator(s) will not permit discovery except upon a showing of substantial need by a party. To the extent the arbitrator(s) permit discovery as to liability, the arbitrator(s) will also permit discovery as to causation, reliance, and damages. The arbitrator(s) will not permit a party to take more than six depositions, and no depositions may exceed five hours. The arbitrator(s) will have no power to make an award inconsistent with this Agreement. The arbitrator(s) will rule on a summary basis where possible, including without limitation on a motion to dismiss basis or on a summary judgment basis. The arbitrator(s) may enter such prehearing orders as may be appropriate to ensure a fair hearing. The hearing will be held within one year of the initiation of arbitration, or less, and the hearing must be held on continuous business days until concluded. The hearing must be concluded within ten (10) business days absent written agreement by the parties to the contrary. The time limits in this section are not jurisdictional. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may award attorney fees and costs to the prevailing party, and in the event of a split or partial award, the arbitrator(s) may award costs or attorney fees in an equitable manner. Any award by the arbitrator(s) will be accompanied by a reasoned opinion describing the basis of the award. Any prior agreement regarding arbitration entered by the parties is replaced and superseded by this agreement. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. All aspects of the arbitration will be treated by the parties and the arbitrator(s) as confidential.

NOTIFICATION OF NON-LICENSEE OWNERSHIP (For California Engagements) – Crowe (“the Firm”) and certain owners of the Firm are licensed by the California State Board of Accountancy. However, the Firm has owners not licensed by the California State Board of Accountancy who may provide Services under this agreement. If Client has any questions regarding licensure of the personnel performing Services under this engagement, please do not hesitate to contact Crowe.

NON‑SOLICITATION – Each party acknowledges that it has invested substantially in recruiting, training and developing the personnel who render services with respect to the material aspects of the engagement (“Key Personnel”). The parties acknowledge that Key Personnel have knowledge of trade secrets or confidential information of their employers that may be of substantial benefit to the other party.

The parties acknowledge that each business would be materially harmed if the other party was able to directly employ Key Personnel. Therefore, the parties agree that during the period of this Agreement and for one (1) year after its expiration or termination, neither party will solicit Key Personnel of the other party for employment or hire the Key Personnel of the other party without that party’s written consent unless the hiring or engaging party pays to the other party a fee equal to the hired or engaged Key Personnel’s compensation for the prior twelve-month period with the other party.

CROWE AND EQUAL OPPORTUNITY – Crowe abides by the principles of equal employment opportunity, including without limitation the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).

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veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Crowe also abides by 29 CFR Part 471, Appendix A to Subpart A. The parties agree that the notice in this paragraph does not create any enforceable rights for any firm, organization, or individual.

CROWE GLOBAL NETWORK – Crowe LLP and its subsidiaries are independent members of Crowe Global, a Swiss organization. “Crowe” is the brand used by the Crowe Global network and its member firms, but it is not a worldwide partnership. Crowe Global and each of its members are separate and independent legal entities and do not obligate each other. Crowe LLP and its subsidiaries are not responsible or liable for any acts or omissions of Crowe Global or any other Crowe Global members, and Crowe LLP and its subsidiaries specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Global or any other Crowe Global member. Crowe Global does not render any professional services and does not have an ownership or partnership interest in Crowe LLP or any other member. Crowe Global and its other members are not responsible or liable for any acts or omissions of Crowe LLP and its subsidiaries and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe LLP and its subsidiaries. Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global.
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Appendix A
The procedures to be performed are:

1. We will obtain the Worksheet provided by the City and determine that the 2021-2022 Limit and annual adjustment factors were adopted by Resolution of the Honorable Mayor and City Council. We will also determine whether the population and inflation options were selected by a recorded vote of the Honorable Mayor and City Council.

2. We will recalculate the 2021-2022 Appropriations Limit by multiplying the 2020-2021 Appropriations Limit by the adjustment factors.

3. For the Worksheet, we will agree the Per Capita Income, County and City Population Factors to California State Department of Finance Worksheets.
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Crowe LLP
Independent Member Crowe Global
650 Town Center Drive, Suite 740,
Costa Mesa, CA 92626-7192
Tel 714-668-1234
Fax 714-668-1235
www.crowe.com
June 7, 2022
To the Honorable Mayor and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Dear Ladies and Gentlemen:

This letter confirms the arrangements for Crowe LLP (“Crowe” or “us” or “we” or “our”) to provide the professional services discussed in this letter to City of Cupertino, California (“you”, “your” or “Client”). The agreement for auditing services dated June 7, 2022 between the Client and Crowe (“the Agreement”) is an integral part of this letter, and such terms are incorporated herein.

Crowe will apply agreed upon procedures, as discussed in Appendix A, solely to assist you with the respect to the Investment Policy of Client from information you provide.

PROFESSIONAL SERVICES
Our Responsibilities
The agreed‑upon procedures will be performed in accordance with attestation standards established by the American Institute of Certified Public Accountants. The sufficiency of these procedures is solely the responsibility of the Honorable Mayor and City Council of the Client.

We have no obligation to perform any procedures beyond those agreed to by you and have been acknowledged to be appropriate for your purposes. If we were to perform additional procedures, other matters might come to our attention that would be reported to you. It is understood that we will prepare a report reflecting our findings of the procedures for use by you. We make no representations as to the adequacy of these procedures for your purpose.

If you decide that additional procedures are needed, we will discuss those with you. It is customary for us to document such revisions by an addendum to this letter. If you wish to add specified users of the report, we will require that you provide, at the conclusion of the engagement, written representation that you have obtained the specified users’ agreement to the procedures and acknowledgement that the procedures performed are appropriate for their purposes.

The agreed‑upon procedures do not contemplate obtaining the understanding of internal control or assessing control risk, tests of accounting records and responses to inquiries by obtaining corroborating evidential matter, and certain other procedures ordinarily performed during an examination. Thus, this engagement does not provide assurance that we will become aware of significant matters that would be disclosed in an examination. Client agrees not to rely on our engagement to disclose errors, fraud or illegal acts that may exist. However, we will inform you of any significant errors that may come to our attention. Our engagement will not enable us to address legal or regulatory matters or abuses of management discretion, which matters should be discussed by you with your legal counsel. You are also responsible for the accuracy and completeness of the information provided to Crowe for purposes of this 81 CC 07-07-2022
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engagement and for timely updating such information. Because of the importance of such information to our engagement, you agree to waive any claim against Crowe and its personnel for any liability and costs relating to or arising from any inaccuracy or incompleteness of information provided to us for purposes of this engagement.

Our procedures and work product are intended for the benefit and use of you. This engagement will not be planned or conducted in contemplation of reliance by any other party or with respect to any specific transaction and is not intended to benefit or influence any other party. Therefore, items of possible interest to a third party may not be specifically addressed or matters may exist that could be assessed differently by a third party. The working papers for this engagement are the property of Crowe and constitute confidential information.

If, for any reason, we are unable to complete the agreed-upon procedures, we will not issue a report as a result of this engagement.

Client’s Responsibilities
The agreed upon procedures are listed in Attachment A. You agree to the procedures included in Attachment A and acknowledge that the procedures are appropriate for the intended purpose of the engagement.

You agree to provide a written representation letter at the conclusion of the engagement. Because of the importance of the written representations to this engagement, you agree to release Crowe and its personnel from any liability and costs relating to our services under this letter attributable to any misrepresentations by you, the engaging party.

The Client is responsible for providing to us, on a timely basis, all information of which you are aware that is relevant to this agreed-upon procedures engagement. The Client is also responsible for providing such other additional information we may request for the purpose of this engagement, and unrestricted access to persons within the Client from whom we determine it necessary to perform the agreed-upon procedures.

Other Matters
Our report is expected to be a general-use report.

Although the actual language of our report may change as a result of our procedures, we presently expect our independent accountant’s report on the agreed-upon procedures to read as follows:

We have performed the procedures enumerated in Appendix A on the Investment Policy of the City of Cupertino, California (the “City”). The City’s management is responsible for the Investment Policy.

The City has agreed to and acknowledged that the procedures performed are appropriate to meet the intended purpose of assisting users in understanding the Investment Policy. We make no representation regarding the appropriateness of the procedures either for the purpose for which this report has been requested or for any other purpose. This report may not be suitable for any other purpose. The procedures performed may not address all the items of interest to a user of this report and may not meet the needs of all users of this report and, as such, users are responsible for determining whether the procedures performed are appropriate for their purposes. An agreed-upon procedures engagement involves performing specific procedures that the engaging party has agreed to and acknowledged to be appropriate for the intended purpose of the engagement and reporting on findings based on the procedures performed.

The procedures and the associated findings are contained in Appendix A. 82 CC 07-07-2022
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We were engaged by the City to perform this agreed-upon procedures engagement and conducted our engagement in accordance with attestation standards established by the American Institute of Certified Public Accountants. We were not engaged to and did not conduct an examination or review, the objective of which would be the expression of an opinion or conclusion, respectively, on the Investment Policy.

Accordingly, we do not express such an opinion or conclusion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.

We are required to be independent of the City and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements related to our agreed-upon procedures engagement.

FEES
Fees for this engagement and related terms are included in the Agreement.

MISCELLANEOUS
In delivering services to Client, Crowe may use subsidiaries owned and controlled by Crowe within and outside the United States. Crowe subsidiaries are subject to the same information security policies and requirements as Crowe LLP and will meet the requirements set forth in the confidentiality and data protection provisions of this Agreement. For purposes of this Miscellaneous section, the Acceptance section below, and all of the Crowe Engagement Terms, “Client” will mean the entity(ies) defined in the first paragraph of this letter and will also include all related parents, subsidiaries, and affiliates of Client who may receive or claim reliance upon any Crowe deliverable.

Crowe will provide the services to Client under this Agreement as an independent contractor and not as Client’s partner, agent, employee, or joint venturer under this Agreement. Neither Crowe nor Client will have any right, power or authority to bind the other party.

This engagement letter agreement (the “Agreement”) reflects the entire agreement between the parties relating to the services (or any reports, deliverables or other work product) covered by this Agreement.

The engagement letter and any attachments (including without limitation the attached Crowe Engagement Terms) are to be construed as a single document, with the provisions of each section applicable throughout. This Agreement may not be amended or varied except by a written document signed by each party. No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. It replaces and supersedes any other proposals, correspondence, agreements and understandings, whether written or oral, relating to the services covered by this letter, and each party agrees that in entering this Agreement, it has not relied on any oral or written representations, statements or other information not contained in or incorporated into this Agreement. Any non-disclosure or other confidentiality agreement is replaced and superseded by this Agreement. Each party shall remain obligated to the other party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this Agreement. If any provision (in whole or in part) of this Agreement is found unenforceable or invalid, this will not affect the remainder of the provision or any other provisions in this Agreement, all of which will continue in effect as if the stricken portion had not been included. This Agreement may be executed in two or more actual, scanned, emailed, or electronically copied counterparts, each and all of which together are one and the same instrument. Accurate transmitted copies (transmitted copies are reproduced documents that are sent via mail, delivery, scanning, email, photocopy, facsimile or other process) of the executed Agreement or signature pages only (whether handwritten or electronic signature), will be considered and accepted by each party as documents equivalent to original documents and will be deemed valid, binding and enforceable by and against all parties. This Agreement, including any dispute arising out of or related to this Agreement and the parties’ relationship generally, will be governed and construed in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed in that state, without giving effect to its conflict of laws rules to the extent those rules would require applying another jurisdiction’s laws. 83 CC 07-07-2022
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* * * * *
We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If the terms of this Agreement and the attached Crowe Engagement Terms are acceptable to you, please sign below and return one copy of this letter at your earliest convenience. Please contact us with any questions or concerns.
(Signature Page Follows)
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ACCEPTANCE
I have reviewed the arrangements outlined above and in the attached “Crowe Engagement Terms,” and I accept on behalf of the Client the terms and conditions as stated. By signing below, I represent and warrant that I am authorized by Client to accept the terms and conditions as stated.

IN WITNESS WHEREOF, Client and Crowe have duly executed this Agreement effective the date first written above.

Crowe LLP and the Engagement Authorized Signer below are licensed or otherwise authorized by the California Board of Accountancy.

City of Cupertino Crowe LLP
ICLM_ExtSignature:1
Signature
ICLM_IntSignature:1
Signature
Ext1Text47176|Cli ent Sig natory N am e|ICM-NO- ATTRIBUTE|1|0|0 Printed Name
Katherine Lai
Printed Name
Ext1Text12890|Cli ent Sig natory Ti tle|ICM-NO-ATTR IBUT E|1|0|0 Title
Partner
Title
ExtDate1
Date
IntDate1
Date
CITY COUNCIL APPROVAL:

The City Council have reviewed the services and Crowe Engagement Terms described in this letter and evaluated the services pursuant to the Client’s policies. After considering all relevant factors, the City Council hereby approve hiring Crowe to provide the services described above.

Authorized Representative of the City Council:

ICLM_ExtSignature:2
Signature
Ext2Text17347|External Signatory Nam e|ICM-NO-ATTRIBUT E|0|0|0|ICM-NO-ATTR IBUT E|1|0|0 Printed Name
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Crowe Engagement Terms
Crowe wants Client to understand the terms under which Crowe provides its services to Client and the basis under which Crowe determines its fees. These terms are part of the Agreement and apply to all services described in the Agreement as well as all other services provided to Client (collectively, the “Services”), unless and until a separate written agreement is executed by the parties for separate services. Any advice provided by Crowe is not intended to be, and is not, investment advice.

CLIENT’S ASSISTANCE – For Crowe to provide Services effectively and efficiently, Client agrees to provide Crowe timely with information requested and to make available to Crowe any personnel, systems, premises, records, or other information as reasonably requested by Crowe to perform the Services.

Access to such personnel and information are key elements for Crowe’s successful completion of Services and determination of fees. If for any reason this does not occur, a revised fee to reflect additional time or resources required by Crowe will be mutually agreed. Client agrees Crowe will have no responsibility for any delays related to a delay in providing such information to Crowe. Such information will be accurate and complete, and Client will inform Crowe of all significant tax, accounting and financial reporting matters of which Client is aware.

PROFESSIONAL STANDARDS – As a regulated professional services firm, Crowe must follow professional standards when applicable, including the Code of Professional Conduct of the American Institute of Certified Public Accountants (“AICPA”). Thus, if circumstances arise that, in Crowe’s professional judgment, prevent it from completing the engagement, Crowe retains the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product or terminating the engagement.

REPORTS – Any information, advice, recommendations or other content of any memoranda, reports, deliverables, work product, presentations, or other communications Crowe provides under this Agreement (“Reports”), other than Client’s original information, are for Client’s internal use only, consistent with the purpose of the Services. Client will not rely on any draft Report. Unless required by an audit or other attestation professional standard, Crowe will not be required to update any final Report for circumstances of which we become aware or events occurring after delivery.

CONFIDENTIALITY – Except as otherwise permitted by this Agreement or as agreed in writing, neither Crowe nor Client may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Client use of any Crowe work product will be limited to its stated purpose and to Client business use only.

However, Client and Crowe each agree that either party may disclose such information to the extent that it: (i) is or becomes public other than through a breach of this Agreement, (ii) is subsequently received by the recipient from a third party who, to the recipient's knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information, (iii) was known to the recipient at the time of disclosure or is thereafter created independently, (iv) is disclosed as necessary to enforce the recipient's rights under this Agreement, or (v) must be disclosed under applicable law, regulations, legal process or professional standards.

USE OF SUBCONTRACTORS FOR SERVICE DELIVERY – Crowe may engage third-party subcontractors in delivering Services to Client. Third-party subcontractors are not owned or controlled by Crowe (including without limitation Crowe Global member firms). If Crowe engages such a subcontractor to deliver Services to Client, Crowe will execute an agreement for the protection of Client’s confidential information consistent with the provisions of this Agreement. Crowe will be solely responsible for the provision of Services (including those provided by subcontractors) and for the protection of Client’s confidential information. The limitations in this Agreement on Client’s remedies will also apply to any subcontractors.

USE OF THIRD-PARTIES IN CROWE OPERATIONS – Crowe uses third-party providers in the ordinary course of Crowe business operations. Third-party providers used in the ordinary course of Crowe 86 CC 07-07-2022
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business operations include without limitation email providers, cyber-security providers, and data hosting centers. Crowe also uses its subsidiaries (owned and controlled by Crowe) within and outside the United States for various administrative and support roles. Crowe subsidiaries and any third-party providers used in the ordinary course of Crowe business operations will meet the confidentiality and data protection requirements in this Agreement. The limitations in this Agreement on Client’s remedies will also apply to any such third-party providers and Crowe subsidiaries.

CLIENT-REQUIRED CLOUD USAGE – If Client requests that Crowe access files, documents or other information in a cloud-based or web-accessed hosting service or other third-party system accessed via the internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by a third party, or a similar service or website (collectively, “Cloud Storage”), Client will confirm with any third parties assisting with or hosting the Cloud Storage that either such third party or Client (and not Crowe) is responsible for complying with all applicable laws relating to the Cloud Storage and any information contained in the Cloud Storage, providing Crowe access to the information in the Cloud Storage, and protecting the information in the Cloud Storage from any unauthorized access, including without limitation unauthorized access to the information when in transit to or from the Cloud Storage. Client represents that it has authority to provide Crowe access to information in the Cloud Storage and that providing Crowe with such access complies with all applicable laws, regulations, and duties owed to third parties.

DATA PROTECTION – If Crowe holds or uses Client information that can be linked to specific individuals who are Client’s customers ("Personal Data"), Crowe will treat it as confidential as described above and comply with applicable US state and federal law and professional regulations (including, for financial institution clients, the objectives of the Interagency Guidelines Establishing Information Security Standards) in disclosing or using such information to carry out the Services. The parties acknowledge and understand that while Crowe is a service provider as defined by the California Consumer Privacy Act of 2018 and processes information on behalf of Client and pursuant to this Agreement, Crowe retains its independence as required by applicable law and professional standards for purposes of providing attest services and other related professional services. Crowe will not (1) sell Personal Data to a third party, or (2) retain, use or disclose Personal Data for any purpose other than for (a) performing the Services and its obligations on this Agreement, (b) as otherwise set forth in this Agreement, (c) to detect security incidents and protect against fraud or illegal activity, (d) to enhance and develop our products and services, including through machine learning and other similar methods and (e) as necessary to comply with applicable law or professional standards. Crowe has implemented and will maintain physical, electronic and procedural safeguards reasonably designed to (i) protect the security, confidentiality and integrity of the Personal Data, (ii) prevent unauthorized access to or use of the Personal Data, and (iii) provide proper disposal of the Personal Data (collectively, the “Safeguards”). Client warrants (i) that it has the authority to provide the Personal Data to Crowe in connection with the Services, (ii) that Client has processed and provided the Personal Data to Crowe in accordance with applicable law, and (iii) will limit the Personal Data provided to Crowe to Personal Data necessary to perform the Services. To provide the Services, Client may also need to provide Crowe with access to Personal Data consisting of protected health information, financial account numbers, Social Security or other government-issued identification numbers, or other data that, if disclosed without authorization, would trigger notification requirements under applicable law ("Restricted Personal Data"). In the event Client provides Crowe access to Restricted Personal Data, Client will consult with Crowe on appropriate measures (consistent with legal requirements and professional standards applicable to Crowe) to protect the Restricted Personal Data, such as: deleting or masking unnecessary information before making it available to Crowe, using encryption when transferring it to Crowe, or providing it to Crowe only during on-site review on Client’s site. Client will provide Crowe with Restricted Personal Data only in accordance with mutually agreed protective measures. Crowe and Client will each allow opportunistic TLS encryption to provide for secure email communication, and each party will notify the other in writing if it deactivates opportunistic TLS encryption. If Client fails to allow opportunistic TLS encryption, Client agrees that each party may use unencrypted electronic media to correspond or transmit information, and Client further agrees that such use of unencrypted media will not in itself constitute a breach of any confidentiality or other obligation relating to this Agreement. Otherwise, Client and Crowe agree each may use unencrypted electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement. Crowe will reasonably cooperate with Client in 87 CC 07-07-2022
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responding to or addressing any request from a consumer or data subject, a data privacy authority with jurisdiction, or the Client, as necessary to enable Client to comply with its obligations under applicable data protection laws and to the extent related to Personal Data processed by Crowe. Client will promptly reimburse Crowe for any out-of-pocket expenses and professional time (at Crowe’s then-current hourly rates) incurred in connection with providing such cooperation. Client will provide prompt written notice to Crowe (with sufficient detailed instructions) of any request or other act that is required to be performed by Crowe. As appropriate, Crowe shall promptly delete or procure the deletion of the Personal Data, after the cessation of any Services involving the processing of Client’s Personal Data, or otherwise aggregate or de-identify the Personal Data in such a way as to reasonably prevent reidentification. Notwithstanding the forgoing, Crowe may retain a copy of the Personal Data as permitted by applicable law or professional standards, provided that such Personal Data remain subject to the terms of this Agreement. If Crowe uses a third-party provider, Crowe will include terms substantially similar to those set forth in this Data Protection Paragraph into an agreement with the provider.

GENERAL DATA PROTECTION REGULATION COMPLIANCE – If and to the extent that Client provides personal data to Crowe subject to the European Union General Data Protection Regulation (“GDPR”), then in addition to the requirements of the above Data Protection section, this section will apply to such personal data (“EU Personal Data”). The parties agree that for purposes of processing the EU Personal Data, (a) Client will be the “Data Controller” as defined by the GDPR, meaning the organization that determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the “Data Processor” as defined by GDPR, meaning the organization that processes the EU Personal Data on behalf of and under the instructions of the Data Controller; or (c) the parties will be classified as otherwise designated by a supervisory authority with jurisdiction. Client and Crowe each agree to comply with the GDPR requirements applicable to its respective role. Crowe has implemented and will maintain technical and organizational security safeguards reasonably designed to protect the security, confidentiality and integrity of the EU Personal Data. Client represents it has secured all required rights and authority, including consents and notices, to provide such EU Personal Data to Crowe, including without limitation authority to transfer such EU Personal Data to the U.S. or other applicable Country or otherwise make the EU Personal Data available to Crowe, for the duration of and purpose of Crowe providing the Services.

The types of EU Personal Data to be processed include name, contact information, title, and other EU Personal Data that is transferred to Crowe in connection with the Services. The EU Personal Data relates to the data subject categories of individuals connected to Client, Client customers, Client vendors, and Client affiliates or subsidiaries (“Data Subjects”). Crowe will process the EU Personal Data for the following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other documented reasonable instructions provided by Client, and (z) to comply with applicable law. In the event of a Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe, Crowe will promptly notify Client upon knowledge that a breach incident has occurred. Client has instructed Crowe not to contact any Data Subjects directly, unless required by applicable law. In the event that a supervisory authority with jurisdiction makes the determination that Crowe is a data controller, Client will reasonably cooperate with Crowe to enable Crowe to comply with its obligations under GDPR.

INTELLECTUAL PROPERTY - Any Deliverables, works, inventions, working papers, or other work product conceived, made or created by Crowe in rendering the Services under this Agreement (“Work Product”), and all intellectual property rights in such Work Product will be owned exclusively by Crowe.

Further, Crowe will retain exclusive ownership or control of all intellectual property rights in any ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, Reports, or other know-how that it develops, owns or licenses in connection with this Agreement ("Materials"). The foregoing ownership will be without any duty of accounting.

DATA USAGE AND AGGREGATIONS - Client hereby acknowledges and agrees that Crowe may, in its discretion, use any Client information or data provided to Crowe to improve Crowe services and Materials, including without limitation developing new Crowe services and software or other products. Client also agrees that Crowe may, in its discretion, aggregate Client content and data with content and data from other clients, other sources, or third parties (“Data Aggregations”) for purposes including, without limitation, product and service development, commercialization, industry benchmarking, or quality improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other Crowe 88 CC 07-07-2022
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customers or prospects, Crowe will anonymize any Client data or information in a manner sufficient to prevent such other customer or prospect from identifying Client or individuals who are Client customers. All Data Aggregations will be the sole and exclusive property of Crowe.

LEGAL AND REGULATORY CHANGE – Crowe may periodically communicate to Client changes in laws, rules or regulations. However, Client has not engaged Crowe, and Crowe does not undertake an obligation, to advise Client of changes in (a) laws, rules, regulations, industry or market conditions, or (b) Client’s own business practices or other circumstances (except to the extent required by professional standards). The scope of Services and the fees for Services are based on current laws and regulations. If changes in laws or regulations change Client’s requirements or the scope of the Services, Crowe’s fees will be modified to a mutually agreed amount to reflect the changed level of Crowe’s effort.

PUBLICATION – Client agrees to obtain Crowe’s specific permission before using any Report or Crowe work product or Crowe’s firm’s name in a published document, and Client agrees to submit to Crowe copies of such documents to obtain Crowe’s permission before they are filed or published.

CLIENT REFERENCE – From time to time Crowe is requested by prospective clients to provide references for Crowe service offerings. Client agrees that Crowe may use Client’s name and generally describe the nature of Crowe’s engagement(s) with Client in marketing to prospects, and Crowe may also provide prospects with contact information for Client personnel familiar with Crowe’s Services.

NO PUNITIVE OR CONSEQUENTIAL DAMAGES – Any liability of Crowe will not include any consequential, special, incidental, indirect, punitive, or exemplary damages or loss, nor any lost profits, goodwill, savings, or business opportunity, even if Crowe had reason to know of the possibility of such damages.

INDEMNIFICATION BY CROWE –
(a) To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Crowe shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, and volunteers (“Indemnitees”), from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) in connection with a third-party claim, arising from the injury or death of a natural person or damage to personal tangible property to the extent Caused by Crowe.
(b) Crowe hereby agrees to defend, indemnify and hold Client harmless from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), and actual damages (collectively "Liabilities") asserted by a third party against Client to the extent such Liabilities result from the infringement by the Deliverables (excluding any third party software) of such third party's U.S. patents issued as of the date of the Agreement, trademarks or copyrights. The preceding indemnification shall not apply to any infringement to the extent arising out of (a) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by Crowe or other than for Client's internal business purposes; (b) any alteration, modification or revision of the Deliverables not expressly agreed to in writing by Crowe; (c) any aspect performed according to Client’s specifications or incorporating Client’s Intellectual Property in the creation of the Deliverable; or (d) the combination of the Deliverables with materials not supplied or approved by Crowe. In case any of the Deliverables or any portion thereof is held, or in Crowe's reasonable opinion is likely to be held, to constitute infringement, Crowe may, within a reasonable time, at its option either: (i) secure for Client the right to continue the use of such infringing item; or (ii) replace, at Crowe's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Crowe is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, Client shall return the allegedly infringing item to Crowe, and Crowe's sole liability shall be to refund to Client the amount paid to Crowe for such item; provided that the foregoing shall not be construed to limit Crowe's indemnification obligation set forth above. The provisions of this paragraph state Crowe's entire liability and Client's sole and exclusive remedy with respect to any infringement or claim of infringement. 89 CC 07-07-2022
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Crowe agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Crowe in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.

This Section shall survive termination of the Agreement.

LIMIT OF LIABILITY – Except where it is judicially determined that Crowe performed its Services with recklessness or willful misconduct, Crowe’s liability will not exceed three (3x) times fees paid by Client to Crowe for the portion of the work giving rise to liability. A claim for a return of three (3X) times fees paid is the exclusive remedy for any damages. This limit of liability will apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted, including, without limitation, to claims based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law.

This limit of liability will also apply after this Agreement.

NO TRANSFER OR ASSIGNMENT OF CLAIMS – No claim against Crowe, or any recovery from or against Crowe, may be sold, assigned or otherwise transferred, in whole or in part.

TIME LIMIT ON CLAIMS – In no event will any action against Crowe, arising from or relating to this Agreement or the Services provided by Crowe relating to this engagement, be brought after the earlier of 1) one (1) year after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose.

RESPONSE TO LEGAL PROCESS – If Crowe is requested by subpoena, request for information, or through some other legal process to produce documents or testimony pertaining to Client or Crowe’s Services, and Crowe is not named as a party in the applicable proceeding, then Client will reimburse Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees, Crowe incurs in responding to such request.

MEDIATION – If a dispute arises, in whole or in part, out of or related to this engagement, or after the date of this agreement, between Client or any of Client’s affiliates or principals and Crowe, and if the dispute cannot be settled through negotiation, Client and Crowe agree first to try, in good faith, to settle the dispute by mediation administered by the American Arbitration Association, under its mediation rules for professional accounting and related services disputes, before resorting to litigation or any other dispute-resolution procedure. The results of mediation will be binding only upon agreement of each party to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in Cupertino, California.

JURY TRIAL WAIVER – FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES,

THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE

MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY.

HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS

JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES’

RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING “ARBITRATION.”
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generally will be settled by binding arbitration in Chicago, Illinois (or a location agreed in writing by the parties). Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of this Section, will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). The arbitration will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc. (“JAMS”), pursuant to its Streamlined Arbitration Rules & Procedures or such other rules or procedures as the parties may agree in writing. In the event of a conflict between those rules and this Agreement, this Agreement will control. The parties may alter each of these rules by written agreement. If a party has a basis for injunctive relief, this paragraph will not preclude a party seeking and obtaining injunctive relief in a court of proper jurisdiction. The parties will agree within a reasonable period of time after notice is made of initiating the arbitration process whether to use one or three arbitrators, and if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. In any event the arbitrator(s) must be retired federal judges or attorneys with at least 15 years commercial law experience and no arbitrator may be appointed unless he or she has agreed to these procedures. If the parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. Discovery will be permitted only as authorized by the arbitrator(s), and as a rule, the arbitrator(s) will not permit discovery except upon a showing of substantial need by a party. To the extent the arbitrator(s) permit discovery as to liability, the arbitrator(s) will also permit discovery as to causation, reliance, and damages. The arbitrator(s) will not permit a party to take more than six depositions, and no depositions may exceed five hours. The arbitrator(s) will have no power to make an award inconsistent with this Agreement. The arbitrator(s) will rule on a summary basis where possible, including without limitation on a motion to dismiss basis or on a summary judgment basis. The arbitrator(s) may enter such prehearing orders as may be appropriate to ensure a fair hearing. The hearing will be held within one year of the initiation of arbitration, or less, and the hearing must be held on continuous business days until concluded. The hearing must be concluded within ten (10) business days absent written agreement by the parties to the contrary. The time limits in this section are not jurisdictional. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may award attorney fees and costs to the prevailing party, and in the event of a split or partial award, the arbitrator(s) may award costs or attorney fees in an equitable manner. Any award by the arbitrator(s) will be accompanied by a reasoned opinion describing the basis of the award. Any prior agreement regarding arbitration entered by the parties is replaced and superseded by this agreement. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. All aspects of the arbitration will be treated by the parties and the arbitrator(s) as confidential.

NOTIFICATION OF NON-LICENSEE OWNERSHIP (For California Engagements) – Crowe (“the Firm”) and certain owners of the Firm are licensed by the California State Board of Accountancy. However, the Firm has owners not licensed by the California State Board of Accountancy who may provide Services under this agreement. If Client has any questions regarding licensure of the personnel performing Services under this engagement, please do not hesitate to contact Crowe.

NON‑SOLICITATION – Each party acknowledges that it has invested substantially in recruiting, training and developing the personnel who render services with respect to the material aspects of the engagement (“Key Personnel”). The parties acknowledge that Key Personnel have knowledge of trade secrets or confidential information of their employers that may be of substantial benefit to the other party.

The parties acknowledge that each business would be materially harmed if the other party was able to directly employ Key Personnel. Therefore, the parties agree that during the period of this Agreement and for one (1) year after its expiration or termination, neither party will solicit Key Personnel of the other party for employment or hire the Key Personnel of the other party without that party’s written consent unless the hiring or engaging party pays to the other party a fee equal to the hired or engaged Key Personnel’s compensation for the prior twelve-month period with the other party.

CROWE AND EQUAL OPPORTUNITY – Crowe abides by the principles of equal employment opportunity, including without limitation the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).

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veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Crowe also abides by 29 CFR Part 471, Appendix A to Subpart A. The parties agree that the notice in this paragraph does not create any enforceable rights for any firm, organization, or individual.

CROWE GLOBAL NETWORK – Crowe LLP and its subsidiaries are independent members of Crowe Global, a Swiss organization. “Crowe” is the brand used by the Crowe Global network and its member firms, but it is not a worldwide partnership. Crowe Global and each of its members are separate and independent legal entities and do not obligate each other. Crowe LLP and its subsidiaries are not responsible or liable for any acts or omissions of Crowe Global or any other Crowe Global members, and Crowe LLP and its subsidiaries specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Global or any other Crowe Global member. Crowe Global does not render any professional services and does not have an ownership or partnership interest in Crowe LLP or any other member. Crowe Global and its other members are not responsible or liable for any acts or omissions of Crowe LLP and its subsidiaries and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe LLP and its subsidiaries. Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global.
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Appendix A
The procedures to be performed are:

1. We will obtain the Investment Policy (policy), dated May 2021, approved by the Honorable Mayor and the City Council. We will compare the investments authorized by the policy with the investments listed in the March 2022 Treasurer’s Investment Report to determine if all investment types are allowed by the investment policy.

2. We will compare the City’s Investment Policy with California Government Code Section 53601 to determine whether the City’s Investment Policy complied with California Government Code Section 53601.

3. We will compare the March 2022 Treasurer’s Investment Report with California Government Code Section 53646 to ensure that the March 2021 Treasurer’s Investment Report complied with California Government Code Section 53646.

4. We will inquire of the Finance Manager whether investment performance statistics and activity reports are generated on a quarterly basis for presentation to the oversight (audit) committee, City Manager and the Honorable Mayor and the City Council, as required by the Investment Policy.

5. We will inquire of the Finance Manager and document our understanding of the wire transfer procedures.

6. We will randomly select three investment sales/maturities from various quarters of Treasurer’s Reports and perform the following:
• Trace investment type to the supporting broker’s confirmation and the Chandler Report. • Trace the maturity date to the supporting broker’s confirmation and the Chandler Report. • Trace the amount of the investment sold to the supporting broker’s confirmation and the Chandler Report.

7. We will randomly select two investments purchased (one as of October 2021 and one as of March 2022 for fiscal 2022 from the City’s investment files and perform the following:
• Trace the purchased investments to the corresponding Treasurer’s Investment Report for the month in which the investments were acquired.
• Agree the amount, terms and interest rate to the Treasurer’s Investment Report. • Verify that the investment type is authorized by the Investment Policy by comparing the type of investment to the allowable types per the Investment Policy.

8. We will obtain the Wells Fargo Bank Market/Cost Value Comparison Report, the City’s third party investment safekeeping custodian, for March 2021 and trace the following from each investment listed in the Wells Fargo statement or other Wells Fargo document in the case of the Purchase Date to the City’s March 2022 Treasurer’s Investment Report:
• Investment description
• Market value
• Purchase date
• Maturity date
• Coupon rate

9. We will trace three randomly selected Federal Agency investments that were purchased in fiscal 2022 and traced the reported ratings to Moody’s rating online.

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10. For the March 2022 Treasurer’s Investment Report (the Chandler Report), we will re-compute or obtain third-party corroborating evidence of the correct listing of:
• Average Yield
• Market value
• Purchase date
• Duration
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Crowe LLP
Independent Member Crowe Global
650 Town Center Drive, Suite 740,
Costa Mesa, CA 92626-7192
Tel 714-668-1234
Fax 714-668-1235
www.crowe.com
June 7, 2022
To the Honorable Mayor and City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Dear Ladies and Gentlemen:

This letter confirms the arrangements for Crowe LLP (“Crowe” or “us” or “we” or “our”) to provide the professional services discussed in this letter to City of Cupertino, California (“you”, “your” or “Client”). The agreement for auditing services dated June 7, 2022 between the Client and Crowe (“the Agreement”) is an integral part of this letter, and such terms are incorporated herein.

Crowe will apply agreed upon procedures, as discussed in Attachment A, solely to assist you with the respect to the 2019 Clean Water and Storm Protection Fee of Client from information you provide.

PROFESSIONAL SERVICES
Our Responsibilities
The agreed‑upon procedures will be performed in accordance with attestation standards established by the American Institute of Certified Public Accountants.

We have no obligation to perform any procedures beyond those agreed to by you and have been acknowledged to be appropriate for your purposes. If we were to perform additional procedures, other matters might come to our attention that would be reported to you. It is understood that we will prepare a report reflecting our findings of the procedures for use by you. We make no representations as to the adequacy of these procedures for your purpose.

If you decide that additional procedures are needed, we will discuss those with you. It is customary for us to document such revisions by an addendum to this letter. If you wish to add specified users of the report, we will require that you provide, at the conclusion of the engagement, written representation that you have obtained the specified users’ agreement to the procedures and acknowledgement that the procedures performed are appropriate for their purposes.

The agreed‑upon procedures do not contemplate obtaining the understanding of internal control or assessing control risk, tests of accounting records and responses to inquiries by obtaining corroborating evidential matter, and certain other procedures ordinarily performed during an examination. Thus, this engagement does not provide assurance that we will become aware of significant matters that would be disclosed in an examination. Client agrees not to rely on our engagement to disclose errors, fraud or illegal acts that may exist. However, we will inform you of any significant errors that may come to our attention. Our engagement will not enable us to address legal or regulatory matters or abuses of management discretion, which matters should be discussed by you with your legal counsel. You are also responsible for the accuracy and completeness of the information provided to Crowe for purposes of this engagement and for timely updating such information. Because of the importance of such information to 95 CC 07-07-2022
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our engagement, you agree to waive any claim against Crowe and its personnel for any liability and costs relating to or arising from any inaccuracy or incompleteness of information provided to us for purposes of this engagement.

Our procedures and work product are intended for the benefit and use of you. This engagement will not be planned or conducted in contemplation of reliance by any other party or with respect to any specific transaction and is not intended to benefit or influence any other party. Therefore, items of possible interest to a third party may not be specifically addressed or matters may exist that could be assessed differently by a third party. The working papers for this engagement are the property of Crowe and constitute confidential information.

If, for any reason, we are unable to complete the agreed-upon procedures, we will not issue a report as a result of this engagement.

Client’s Responsibilities
The agreed upon procedures are listed in Attachment A. You agree to the procedures included in Attachment A and acknowledge that the procedures are appropriate for the intended purpose of the engagement.

You agree to provide a written representation letter at the conclusion of the engagement. Because of the importance of the written representations to this engagement, you agree to release Crowe and its personnel from any liability and costs relating to our services under this letter attributable to any misrepresentations by you, the engaging party.

The Client is responsible for providing to us, on a timely basis, all information of which you are aware that is relevant to this agreed-upon procedures engagement. The Client is also responsible for providing such other additional information we may request for the purpose of this engagement, and unrestricted access to persons within the Client from whom we determine it necessary to perform the agreed-upon procedures.

Other Matters
Our report is expected to be a general-use report.

Although the actual language of our report may change as a result of our procedures, we presently expect our independent accountant’s report on the agreed-upon procedures to read as follows:

We have performed the procedures enumerated in Appendix A on the 2019 Clean Water and Storm Protection Fee of the City of Cupertino, California (the “City”). The City’s management is responsible for the 2019 Clean Water and Storm Protection Fee.

The City has agreed to and acknowledged that the procedures performed are appropriate to meet the intended purpose of assisting users in understanding the 2019 Clean Water and Storm Protection Fee. We make no representation regarding the appropriateness of the procedures either for the purpose for which this report has been requested or for any other purpose. This report may not be suitable for any other purpose. The procedures performed may not address all the items of interest to a user of this report and may not meet the needs of all users of this report and, as such, users are responsible for determining whether the procedures performed are appropriate for their purposes. An agreed-upon procedures engagement involves performing specific procedures that the engaging party has agreed to and acknowledged to be appropriate for the intended purpose of the engagement and reporting on findings based on the procedures performed.

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We were engaged by the City to perform this agreed-upon procedures engagement and conducted our engagement in accordance with attestation standards established by the American Institute of Certified Public Accountants. We were not engaged to and did not conduct an examination or review, the objective of which would be the expression of an opinion or conclusion, respectively, on the 2019 Clean Water and Storm Protection Fee. Accordingly, we do not express such an opinion or conclusion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you.

We are required to be independent of the City and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements related to our agreed-upon procedures engagement.

This report is intended solely for the information and use of the City and is not intended to be and should not be used by anyone other than these specified parties.

FEES
Fees for this engagement and related terms are included in the Agreement.

MISCELLANEOUS
In delivering services to Client, Crowe may use subsidiaries owned and controlled by Crowe within and outside the United States. Crowe subsidiaries are subject to the same information security policies and requirements as Crowe LLP and will meet the requirements set forth in the confidentiality and data protection provisions of this Agreement. For purposes of this Miscellaneous section, the Acceptance section below, and all of the Crowe Engagement Terms, “Client” will mean the entity(ies) defined in the first paragraph of this letter and will also include all related parents, subsidiaries, and affiliates of Client who may receive or claim reliance upon any Crowe deliverable.

Crowe will provide the services to Client under this Agreement as an independent contractor and not as Client’s partner, agent, employee, or joint venturer under this Agreement. Neither Crowe nor Client will have any right, power or authority to bind the other party.

This engagement letter agreement (the “Agreement”) reflects the entire agreement between the parties relating to the services (or any reports, deliverables or other work product) covered by this Agreement.

The engagement letter and any attachments (including without limitation the attached Crowe Engagement Terms) are to be construed as a single document, with the provisions of each section applicable throughout. This Agreement may not be amended or varied except by a written document signed by each party. No provision of this Agreement will be deemed waived, unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. It replaces and supersedes any other proposals, correspondence, agreements and understandings, whether written or oral, relating to the services covered by this letter, and each party agrees that in entering this Agreement, it has not relied on any oral or written representations, statements or other information not contained in or incorporated into this Agreement. Any non-disclosure or other confidentiality agreement is replaced and superseded by this Agreement. Each party shall remain obligated to the other party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this Agreement. If any provision (in whole or in part) of this Agreement is found unenforceable or invalid, this will not affect the remainder of the provision or any other provisions in this Agreement, all of which will continue in effect as if the stricken portion had not been included. This Agreement may be executed in two or more actual, scanned, emailed, or electronically copied counterparts, each and all of which together are one and the same instrument. Accurate transmitted copies (transmitted copies are reproduced documents that are sent via mail, delivery, scanning, email, photocopy, facsimile or other process) of the executed Agreement or signature pages only (whether handwritten or electronic signature), will be considered and accepted by each party as documents equivalent to original documents and will be deemed valid, binding and enforceable by and against all parties. This Agreement, including any dispute arising out of or related to this Agreement and the parties’ relationship generally, will be governed and construed in accordance with the laws of the State of Illinois applicable to agreements 97 CC 07-07-2022
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made and wholly performed in that state, without giving effect to its conflict of laws rules to the extent those rules would require applying another jurisdiction’s laws. * * * * *
We are pleased to have this opportunity to serve you, and we look forward to a continuing relationship. If the terms of this Agreement and the attached Crowe Engagement Terms are acceptable to you, please sign below and return one copy of this letter at your earliest convenience. Please contact us with any questions or concerns.
(Signature Page Follows)
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ACCEPTANCE
I have reviewed the arrangements outlined above and in the attached “Crowe Engagement Terms,” and I accept on behalf of the Client the terms and conditions as stated. By signing below, I represent and warrant that I am authorized by Client to accept the terms and conditions as stated.

IN WITNESS WHEREOF, Client and Crowe have duly executed this Agreement effective the date first written above.

Crowe LLP and the Engagement Authorized Signer below are licensed or otherwise authorized by the California Board of Accountancy.

City of Cupertino Crowe LLP
ICLM_ExtSignature:1
Signature
ICLM_IntSignature:1
Signature
Ext1Text47176|Cli ent Sig natory N am e|ICM-NO- ATTRIBUTE|1|0|0 Printed Name
Katherine Lai
Printed Name
Ext1Text12890|Cli ent Sig natory Ti tle|ICM-NO-ATTR IBUT E|1|0|0 Title
Partner
Title
ExtDate1
Date
IntDate1
Date
CITY COUNCIL APPROVAL:

The City Council have reviewed the services and Crowe Engagement Terms described in this letter and evaluated the services pursuant to the Client’s policies. After considering all relevant factors, the City Council hereby approve hiring Crowe to provide the services described above.

Authorized Representative of the City Council:

ICLM_ExtSignature:2
Signature
Ext2Text17347|External Signatory Nam e|ICM-NO-ATTRIBUT E|0|0|0|ICM-NO-ATTR IBUT E|1|0|0 Printed Name
Ext2Text98237|External Signatory Title|ICM-NO-ATTRIBUTE|0|0|0|ICM-NO- ATTRIBUTE|1|0|0 Title
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Date
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Crowe Engagement Terms
Crowe wants Client to understand the terms under which Crowe provides its services to Client and the basis under which Crowe determines its fees. These terms are part of the Agreement and apply to all services described in the Agreement as well as all other services provided to Client (collectively, the “Services”), unless and until a separate written agreement is executed by the parties for separate services. Any advice provided by Crowe is not intended to be, and is not, investment advice.

CLIENT’S ASSISTANCE – For Crowe to provide Services effectively and efficiently, Client agrees to provide Crowe timely with information requested and to make available to Crowe any personnel, systems, premises, records, or other information as reasonably requested by Crowe to perform the Services.

Access to such personnel and information are key elements for Crowe’s successful completion of Services and determination of fees. If for any reason this does not occur, a revised fee to reflect additional time or resources required by Crowe will be mutually agreed. Client agrees Crowe will have no responsibility for any delays related to a delay in providing such information to Crowe. Such information will be accurate and complete, and Client will inform Crowe of all significant tax, accounting and financial reporting matters of which Client is aware.

PROFESSIONAL STANDARDS – As a regulated professional services firm, Crowe must follow professional standards when applicable, including the Code of Professional Conduct of the American Institute of Certified Public Accountants (“AICPA”). Thus, if circumstances arise that, in Crowe’s professional judgment, prevent it from completing the engagement, Crowe retains the right to take any course of action permitted by professional standards, including declining to express an opinion or issue other work product or terminating the engagement.

REPORTS – Any information, advice, recommendations or other content of any memoranda, reports, deliverables, work product, presentations, or other communications Crowe provides under this Agreement (“Reports”), other than Client’s original information, are for Client’s internal use only, consistent with the purpose of the Services. Client will not rely on any draft Report. Unless required by an audit or other attestation professional standard, Crowe will not be required to update any final Report for circumstances of which we become aware or events occurring after delivery.

CONFIDENTIALITY – Except as otherwise permitted by this Agreement or as agreed in writing, neither Crowe nor Client may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Client use of any Crowe work product will be limited to its stated purpose and to Client business use only.

However, Client and Crowe each agree that either party may disclose such information to the extent that it: (i) is or becomes public other than through a breach of this Agreement, (ii) is subsequently received by the recipient from a third party who, to the recipient's knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information, (iii) was known to the recipient at the time of disclosure or is thereafter created independently, (iv) is disclosed as necessary to enforce the recipient's rights under this Agreement, or (v) must be disclosed under applicable law, regulations, legal process or professional standards.

USE OF SUBCONTRACTORS FOR SERVICE DELIVERY – Crowe may engage third-party subcontractors in delivering Services to Client. Third-party subcontractors are not owned or controlled by Crowe (including without limitation Crowe Global member firms). If Crowe engages such a subcontractor to deliver Services to Client, Crowe will execute an agreement for the protection of Client’s confidential information consistent with the provisions of this Agreement. Crowe will be solely responsible for the provision of Services (including those provided by subcontractors) and for the protection of Client’s confidential information. The limitations in this Agreement on Client’s remedies will also apply to any subcontractors.

USE OF THIRD-PARTIES IN CROWE OPERATIONS – Crowe uses third-party providers in the ordinary course of Crowe business operations. Third-party providers used in the ordinary course of Crowe 100
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business operations include without limitation email providers, cyber-security providers, and data hosting centers. Crowe also uses its subsidiaries (owned and controlled by Crowe) within and outside the United States for various administrative and support roles. Crowe subsidiaries and any third-party providers used in the ordinary course of Crowe business operations will meet the confidentiality and data protection requirements in this Agreement. The limitations in this Agreement on Client’s remedies will also apply to any such third-party providers and Crowe subsidiaries.

CLIENT-REQUIRED CLOUD USAGE – If Client requests that Crowe access files, documents or other information in a cloud-based or web-accessed hosting service or other third-party system accessed via the internet, including, without limitation iCloud, Dropbox, Google Docs, Google Drive, a data room hosted by a third party, or a similar service or website (collectively, “Cloud Storage”), Client will confirm with any third parties assisting with or hosting the Cloud Storage that either such third party or Client (and not Crowe) is responsible for complying with all applicable laws relating to the Cloud Storage and any information contained in the Cloud Storage, providing Crowe access to the information in the Cloud Storage, and protecting the information in the Cloud Storage from any unauthorized access, including without limitation unauthorized access to the information when in transit to or from the Cloud Storage. Client represents that it has authority to provide Crowe access to information in the Cloud Storage and that providing Crowe with such access complies with all applicable laws, regulations, and duties owed to third parties.

DATA PROTECTION – If Crowe holds or uses Client information that can be linked to specific individuals who are Client’s customers ("Personal Data"), Crowe will treat it as confidential as described above and comply with applicable US state and federal law and professional regulations (including, for financial institution clients, the objectives of the Interagency Guidelines Establishing Information Security Standards) in disclosing or using such information to carry out the Services. The parties acknowledge and understand that while Crowe is a service provider as defined by the California Consumer Privacy Act of 2018 and processes information on behalf of Client and pursuant to this Agreement, Crowe retains its independence as required by applicable law and professional standards for purposes of providing attest services and other related professional services. Crowe will not (1) sell Personal Data to a third party, or (2) retain, use or disclose Personal Data for any purpose other than for (a) performing the Services and its obligations on this Agreement, (b) as otherwise set forth in this Agreement, (c) to detect security incidents and protect against fraud or illegal activity, (d) to enhance and develop our products and services, including through machine learning and other similar methods and (e) as necessary to comply with applicable law or professional standards. Crowe has implemented and will maintain physical, electronic and procedural safeguards reasonably designed to (i) protect the security, confidentiality and integrity of the Personal Data, (ii) prevent unauthorized access to or use of the Personal Data, and (iii) provide proper disposal of the Personal Data (collectively, the “Safeguards”). Client warrants (i) that it has the authority to provide the Personal Data to Crowe in connection with the Services, (ii) that Client has processed and provided the Personal Data to Crowe in accordance with applicable law, and (iii) will limit the Personal Data provided to Crowe to Personal Data necessary to perform the Services. To provide the Services, Client may also need to provide Crowe with access to Personal Data consisting of protected health information, financial account numbers, Social Security or other government-issued identification numbers, or other data that, if disclosed without authorization, would trigger notification requirements under applicable law ("Restricted Personal Data"). In the event Client provides Crowe access to Restricted Personal Data, Client will consult with Crowe on appropriate measures (consistent with legal requirements and professional standards applicable to Crowe) to protect the Restricted Personal Data, such as: deleting or masking unnecessary information before making it available to Crowe, using encryption when transferring it to Crowe, or providing it to Crowe only during on-site review on Client’s site. Client will provide Crowe with Restricted Personal Data only in accordance with mutually agreed protective measures. Crowe and Client will each allow opportunistic TLS encryption to provide for secure email communication, and each party will notify the other in writing if it deactivates opportunistic TLS encryption. If Client fails to allow opportunistic TLS encryption, Client agrees that each party may use unencrypted electronic media to correspond or transmit information, and Client further agrees that such use of unencrypted media will not in itself constitute a breach of any confidentiality or other obligation relating to this Agreement. Otherwise, Client and Crowe agree each may use unencrypted electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement. Crowe will reasonably cooperate with Client in 101
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responding to or addressing any request from a consumer or data subject, a data privacy authority with jurisdiction, or the Client, as necessary to enable Client to comply with its obligations under applicable data protection laws and to the extent related to Personal Data processed by Crowe. Client will promptly reimburse Crowe for any out-of-pocket expenses and professional time (at Crowe’s then-current hourly rates) incurred in connection with providing such cooperation. Client will provide prompt written notice to Crowe (with sufficient detailed instructions) of any request or other act that is required to be performed by Crowe. As appropriate, Crowe shall promptly delete or procure the deletion of the Personal Data, after the cessation of any Services involving the processing of Client’s Personal Data, or otherwise aggregate or de-identify the Personal Data in such a way as to reasonably prevent reidentification. Notwithstanding the forgoing, Crowe may retain a copy of the Personal Data as permitted by applicable law or professional standards, provided that such Personal Data remain subject to the terms of this Agreement. If Crowe uses a third-party provider, Crowe will include terms substantially similar to those set forth in this Data Protection Paragraph into an agreement with the provider.

GENERAL DATA PROTECTION REGULATION COMPLIANCE – If and to the extent that Client provides personal data to Crowe subject to the European Union General Data Protection Regulation (“GDPR”), then in addition to the requirements of the above Data Protection section, this section will apply to such personal data (“EU Personal Data”). The parties agree that for purposes of processing the EU Personal Data, (a) Client will be the “Data Controller” as defined by the GDPR, meaning the organization that determines the purposes and means of processing the EU Personal Data; (b) Crowe will be the “Data Processor” as defined by GDPR, meaning the organization that processes the EU Personal Data on behalf of and under the instructions of the Data Controller; or (c) the parties will be classified as otherwise designated by a supervisory authority with jurisdiction. Client and Crowe each agree to comply with the GDPR requirements applicable to its respective role. Crowe has implemented and will maintain technical and organizational security safeguards reasonably designed to protect the security, confidentiality and integrity of the EU Personal Data. Client represents it has secured all required rights and authority, including consents and notices, to provide such EU Personal Data to Crowe, including without limitation authority to transfer such EU Personal Data to the U.S. or other applicable Country or otherwise make the EU Personal Data available to Crowe, for the duration of and purpose of Crowe providing the Services.

The types of EU Personal Data to be processed include name, contact information, title, and other EU Personal Data that is transferred to Crowe in connection with the Services. The EU Personal Data relates to the data subject categories of individuals connected to Client, Client customers, Client vendors, and Client affiliates or subsidiaries (“Data Subjects”). Crowe will process the EU Personal Data for the following purpose: (x) to provide the Services in accordance with this Agreement, (y) to comply with other documented reasonable instructions provided by Client, and (z) to comply with applicable law. In the event of a Crowe breach incident in connection with EU Personal Data in the custody or control of Crowe, Crowe will promptly notify Client upon knowledge that a breach incident has occurred. Client has instructed Crowe not to contact any Data Subjects directly, unless required by applicable law. In the event that a supervisory authority with jurisdiction makes the determination that Crowe is a data controller, Client will reasonably cooperate with Crowe to enable Crowe to comply with its obligations under GDPR.

INTELLECTUAL PROPERTY - Any Deliverables, works, inventions, working papers, or other work product conceived, made or created by Crowe in rendering the Services under this Agreement (“Work Product”), and all intellectual property rights in such Work Product will be owned exclusively by Crowe.

Further, Crowe will retain exclusive ownership or control of all intellectual property rights in any ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, systems, Reports, or other know-how that it develops, owns or licenses in connection with this Agreement ("Materials"). The foregoing ownership will be without any duty of accounting.

DATA USAGE AND AGGREGATIONS - Client hereby acknowledges and agrees that Crowe may, in its discretion, use any Client information or data provided to Crowe to improve Crowe services and Materials, including without limitation developing new Crowe services and software or other products. Client also agrees that Crowe may, in its discretion, aggregate Client content and data with content and data from other clients, other sources, or third parties (“Data Aggregations”) for purposes including, without limitation, product and service development, commercialization, industry benchmarking, or quality improvement initiatives. Prior to, and as a precondition for, disclosing Data Aggregations to other Crowe 102
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customers or prospects, Crowe will anonymize any Client data or information in a manner sufficient to prevent such other customer or prospect from identifying Client or individuals who are Client customers. All Data Aggregations will be the sole and exclusive property of Crowe.

LEGAL AND REGULATORY CHANGE – Crowe may periodically communicate to Client changes in laws, rules or regulations. However, Client has not engaged Crowe, and Crowe does not undertake an obligation, to advise Client of changes in (a) laws, rules, regulations, industry or market conditions, or (b) Client’s own business practices or other circumstances (except to the extent required by professional standards). The scope of Services and the fees for Services are based on current laws and regulations. If changes in laws or regulations change Client’s requirements or the scope of the Services, Crowe’s fees will be modified to a mutually agreed amount to reflect the changed level of Crowe’s effort.

PUBLICATION – Client agrees to obtain Crowe’s specific permission before using any Report or Crowe work product or Crowe’s firm’s name in a published document, and Client agrees to submit to Crowe copies of such documents to obtain Crowe’s permission before they are filed or published.

CLIENT REFERENCE – From time to time Crowe is requested by prospective clients to provide references for Crowe service offerings. Client agrees that Crowe may use Client’s name and generally describe the nature of Crowe’s engagement(s) with Client in marketing to prospects, and Crowe may also provide prospects with contact information for Client personnel familiar with Crowe’s Services.

NO PUNITIVE OR CONSEQUENTIAL DAMAGES – Any liability of Crowe will not include any consequential, special, incidental, indirect, punitive, or exemplary damages or loss, nor any lost profits, goodwill, savings, or business opportunity, even if Crowe had reason to know of the possibility of such damages.

INDEMNIFICATION BY CROWE –
(a) To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Crowe shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, and volunteers (“Indemnitees”), from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) in connection with a third-party claim, arising from the injury or death of a natural person or damage to personal tangible property to the extent Caused by Crowe.
(b) Crowe hereby agrees to defend, indemnify and hold Client harmless from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), and actual damages (collectively "Liabilities") asserted by a third party against Client to the extent such Liabilities result from the infringement by the Deliverables (excluding any third party software) of such third party's U.S. patents issued as of the date of the Agreement, trademarks or copyrights. The preceding indemnification shall not apply to any infringement to the extent arising out of (a) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by Crowe or other than for Client's internal business purposes; (b) any alteration, modification or revision of the Deliverables not expressly agreed to in writing by Crowe; (c) any aspect performed according to Client’s specifications or incorporating Client’s Intellectual Property in the creation of the Deliverable; or (d) the combination of the Deliverables with materials not supplied or approved by Crowe. In case any of the Deliverables or any portion thereof is held, or in Crowe's reasonable opinion is likely to be held, to constitute infringement, Crowe may, within a reasonable time, at its option either: (i) secure for Client the right to continue the use of such infringing item; or (ii) replace, at Crowe's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Crowe is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, Client shall return the allegedly infringing item to Crowe, and Crowe's sole liability shall be to refund to Client the amount paid to Crowe for such item; provided that the foregoing shall not be construed to limit Crowe's indemnification obligation set forth above. The provisions of this paragraph state Crowe's entire liability and Client's sole and exclusive remedy with respect to any infringement or claim of infringement. 103
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Crowe agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Crowe in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.

This Section shall survive termination of the Agreement.

LIMIT OF LIABILITY – Except where it is judicially determined that Crowe performed its Services with recklessness or willful misconduct, Crowe’s liability will not exceed three (3x) times fees paid by Client to Crowe for the portion of the work giving rise to liability. A claim for a return of three (3X) times fees paid is the exclusive remedy for any damages. This limit of liability will apply to the full extent allowed by law, regardless of the grounds or nature of any claim asserted, including, without limitation, to claims based on principles of contract, negligence or other tort, fiduciary duty, warranty, indemnity, statute or common law.

This limit of liability will also apply after this Agreement.

NO TRANSFER OR ASSIGNMENT OF CLAIMS – No claim against Crowe, or any recovery from or against Crowe, may be sold, assigned or otherwise transferred, in whole or in part.

TIME LIMIT ON CLAIMS – In no event will any action against Crowe, arising from or relating to this Agreement or the Services provided by Crowe relating to this engagement, be brought after the earlier of 1) one (1) year after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or 2) the expiration of the applicable statute of limitations or repose.

RESPONSE TO LEGAL PROCESS – If Crowe is requested by subpoena, request for information, or through some other legal process to produce documents or testimony pertaining to Client or Crowe’s Services, and Crowe is not named as a party in the applicable proceeding, then Client will reimburse Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees, Crowe incurs in responding to such request.

MEDIATION – If a dispute arises, in whole or in part, out of or related to this engagement, or after the date of this agreement, between Client or any of Client’s affiliates or principals and Crowe, and if the dispute cannot be settled through negotiation, Client and Crowe agree first to try, in good faith, to settle the dispute by mediation administered by the American Arbitration Association, under its mediation rules for professional accounting and related services disputes, before resorting to litigation or any other dispute-resolution procedure. The results of mediation will be binding only upon agreement of each party to be bound. Costs of any mediation will be shared equally by both parties. Any mediation will be held in Cupertino, California.

JURY TRIAL WAIVER – FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES,

THE PARTIES AGREE TO WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE

MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY.

HOWEVER, AND NOTWITHSTANDING THE FOREGOING, IF ANY COURT RULES OR FINDS THIS

JURY TRIAL WAIVER TO BE UNENFORCEABLE AND INEFFECTIVE IN WAIVING A JURY, THEN ANY DISPUTE RELATING TO OR ARISING FROM THIS ENGAGEMENT OR THE PARTIES’

RELATIONSHIP GENERALLY WILL BE RESOLVED BY ARBITRATION AS SET FORTH IN THE PARAGRAPH BELOW REGARDING “ARBITRATION.”
ARBITRATION – If any court rules or finds that the JURY TRIAL WAIVER section is not enforceable, then any dispute between the parties relating to or arising from this Agreement or the parties’ relationship 104
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generally will be settled by binding arbitration in Chicago, Illinois (or a location agreed in writing by the parties). Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of this Section, will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). The arbitration will be governed by the Federal Arbitration Act and resolved by the arbitrator(s). Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc. (“JAMS”), pursuant to its Streamlined Arbitration Rules & Procedures or such other rules or procedures as the parties may agree in writing. In the event of a conflict between those rules and this Agreement, this Agreement will control. The parties may alter each of these rules by written agreement. If a party has a basis for injunctive relief, this paragraph will not preclude a party seeking and obtaining injunctive relief in a court of proper jurisdiction. The parties will agree within a reasonable period of time after notice is made of initiating the arbitration process whether to use one or three arbitrators, and if the parties cannot agree within fifteen (15) business days, the parties will use a single arbitrator. In any event the arbitrator(s) must be retired federal judges or attorneys with at least 15 years commercial law experience and no arbitrator may be appointed unless he or she has agreed to these procedures. If the parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. Discovery will be permitted only as authorized by the arbitrator(s), and as a rule, the arbitrator(s) will not permit discovery except upon a showing of substantial need by a party. To the extent the arbitrator(s) permit discovery as to liability, the arbitrator(s) will also permit discovery as to causation, reliance, and damages. The arbitrator(s) will not permit a party to take more than six depositions, and no depositions may exceed five hours. The arbitrator(s) will have no power to make an award inconsistent with this Agreement. The arbitrator(s) will rule on a summary basis where possible, including without limitation on a motion to dismiss basis or on a summary judgment basis. The arbitrator(s) may enter such prehearing orders as may be appropriate to ensure a fair hearing. The hearing will be held within one year of the initiation of arbitration, or less, and the hearing must be held on continuous business days until concluded. The hearing must be concluded within ten (10) business days absent written agreement by the parties to the contrary. The time limits in this section are not jurisdictional. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may award attorney fees and costs to the prevailing party, and in the event of a split or partial award, the arbitrator(s) may award costs or attorney fees in an equitable manner. Any award by the arbitrator(s) will be accompanied by a reasoned opinion describing the basis of the award. Any prior agreement regarding arbitration entered by the parties is replaced and superseded by this agreement. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. All aspects of the arbitration will be treated by the parties and the arbitrator(s) as confidential.

NOTIFICATION OF NON-LICENSEE OWNERSHIP (For California Engagements) – Crowe (“the Firm”) and certain owners of the Firm are licensed by the California State Board of Accountancy. However, the Firm has owners not licensed by the California State Board of Accountancy who may provide Services under this agreement. If Client has any questions regarding licensure of the personnel performing Services under this engagement, please do not hesitate to contact Crowe.

NON‑SOLICITATION – Each party acknowledges that it has invested substantially in recruiting, training and developing the personnel who render services with respect to the material aspects of the engagement (“Key Personnel”). The parties acknowledge that Key Personnel have knowledge of trade secrets or confidential information of their employers that may be of substantial benefit to the other party.

The parties acknowledge that each business would be materially harmed if the other party was able to directly employ Key Personnel. Therefore, the parties agree that during the period of this Agreement and for one (1) year after its expiration or termination, neither party will solicit Key Personnel of the other party for employment or hire the Key Personnel of the other party without that party’s written consent unless the hiring or engaging party pays to the other party a fee equal to the hired or engaged Key Personnel’s compensation for the prior twelve-month period with the other party.

CROWE AND EQUAL OPPORTUNITY – Crowe abides by the principles of equal employment opportunity, including without limitation the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).

These regulations prohibit discrimination against qualified individuals based on their status as protected 105
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veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Crowe also abides by 29 CFR Part 471, Appendix A to Subpart A. The parties agree that the notice in this paragraph does not create any enforceable rights for any firm, organization, or individual.

CROWE GLOBAL NETWORK – Crowe LLP and its subsidiaries are independent members of Crowe Global, a Swiss organization. “Crowe” is the brand used by the Crowe Global network and its member firms, but it is not a worldwide partnership. Crowe Global and each of its members are separate and independent legal entities and do not obligate each other. Crowe LLP and its subsidiaries are not responsible or liable for any acts or omissions of Crowe Global or any other Crowe Global members, and Crowe LLP and its subsidiaries specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Global or any other Crowe Global member. Crowe Global does not render any professional services and does not have an ownership or partnership interest in Crowe LLP or any other member. Crowe Global and its other members are not responsible or liable for any acts or omissions of Crowe LLP and its subsidiaries and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe LLP and its subsidiaries. Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global.
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Attachment A
Date Range: January 1, 2021 – December 31, 2021
Procedures to Perform:

1. Select 100% of the revenue transactions recorded in the Environmental Management/Clean Creeks Special Revenue Fund (Fund 230) for the period January 1, 2021 thru December 31, 2021 and perform the following procedures:
a. Observe the Clean Water and Storm Protection fees have been deposited and recorded in Fund 230 per Section 3.38.160A of the Cupertino Municipal Code. b. Obtain the County tax remittance statement for each specific receipt (as provided by the County) and observe the cash collected in total on the statement agrees to the amount deposited in Fund 230 in accordance with Section 3.38.070 of the Cupertino Municipal Code, which specifies that the City elects to have fees collection on the tax roll in the same manner as property taxes.
c. Obtain the City support <e.g. schedule of fees billed to property owners in situation where the fee was not included in the annual tax assessment> and observe the cash collected in total per the Schedule agrees to the amount deposited in Fund 230 in accordance with Section 3.38.090 of the Cupertino Municipal Code, which specifies that the City Finance Department bills out fees to property owners in situations where the fee was not included in the annual tax assessment.

2. Select 60% of the non-payroll expenditure transactions recorded in Fund 230 for the period January 1, 2021 thru December 31, 2021 and perform the following procedures:
a. Obtain the City invoices and purchase orders for the expenditures selected, and observe the description of expenditures on the invoice and purchase order, as well as the assigned object code on the purchase order from the City were for allowed purposes per Section 3.38.010B of the Cupertino Municipal Code, which specifies allowable activities are defined as acquisition, construction, reconstruction, maintenance, and operation of the storm drainage system of the City or related green infrastructure or other activities required by the City’s NPDES permits, to repay principal and interest on any bonds which may hereafter be issued for said purposes, to repay loans or advances which may hereafter be made for said purposes.
b. Obtain the City invoices and purchase orders for the nonpayroll expenditures selected and observe the description of expenditures on the invoice and purchase order were for allowed purposes per Section 3.38.0160A and 3.38.0160B of the Cupertino Municipal Code. Section 3.38.160A of the Cupertino Municipal Code specifies allowable from the overall perspective as direct costs and administrative costs, while 3.38.160B of the Cupertino Municipal Code specifically defines direct costs as wages and salaries and costs of employee fringe benefits and mileage reimbursement attributable to said collection activities, with administrative costs as all costs for computer service, materials, postage supplies and equipment.
c. Obtain the City documentation for all refunds issued and observe the Finance Director authorized the refund through written approval in accordance with Section 3.38.170 of the Cupertino Municipal Code.

3. Sample one pay period (selected on a haphazard basis) between January 1, 2021 and December 31, 2021 to recompute employee allocation in the general ledger for activity recorded in Fund 230 and compare to the City’s calculations as follows:
a. Sample of at least 10% of the time cards of applicable employees charged in Fund 230 to the selected payroll period (selected on a haphazard basis) and observe written approval by supervisors.
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b. Obtain documentation of the general ledger distribution for the payroll period selected and recalculate the distribution and agree the results to the budgeted allocation and the functional allocation matrix established by management. The budgeted allocation shall be specified by City-established allocation worksheets used to estimate the amount of actual time spent on the acquisition, construction, reconstruction, maintenance, and operation of the storm drainage system of the City or related green infrastructure or other activities required by the City’s NPDES permits.
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CITY OF CUPERTINO
Agenda Item
22-10948 Agenda Date: 7/7/2022
Agenda #: 11.

Subject: Consider authorization to execute a Design Professional Services Agreement between the City of Cupertino and David L. Gates and Associates (Gates) for the Memorial Park Specific Plan project.

1. Authorize the City Manager to execute a Design Professional Services Agreement between the City and David L. Gates and Associates to provide design services for the Memorial Park Specific Plan in the amount of $409,589.00;

2. Authorize the Director of Public Works to execute any necessary services or change orders, up to a contingency amount of $82,000.00 (approximately 20% of base services,) for a total appropriation of $491,589.00; and

3. Adopt Resolution No. 22-080 to approve budget modification 2223-218 transferring the existing project budget of $500,000 in appropriations from Park Dedication Fund (280-99-255) to Capital Improvement Fund (420-99-255) and increasing these appropriations in the Capital Improvement Fund (420-99-255) by $150,000 for design services and additional work by other consultants, for a total of $650,000 for the Memorial Park Specific Plan project.

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CITY COUNCIL STAFF REPORT
Meeting: July 7, 2022
Subject
Consider authorization to execute a Design Professional Services Agreement between the City of Cupertino and David L. Gates and Associates (Gates) for the Memorial Park Specific Plan project.

Recommended Action

1. Authorize the City Manager to execute a Design Professional Services Agreement between the City and David L. Gates and Associates to provide design services for the Memorial Park Specific Plan in the amount of $409,589.00;

2. Authorize the Director of Public Works to execute any necessary services or change orders, up to a contingency amount of $82,000.00 (approximately 20% of base services,) for a total appropriation of $491,589.00; and

3. Adopt Resolution No. 22-XXX to approve budget modification 2223-218 transferring the existing project budget of $500,000 in appropriations from Park Dedication Fund (280-99-255) to Capital Improvement Fund (420-99-255) and increasing these appropriations in the Capital Improvement Fund (420-99-255) by $150,000 for design services and additional work by other consultants, for a total of $650,000 for the Memorial Park Specific Plan project.

Background
Memorial Park is a popular 28-acre park that includes acres of lawn, walking paths, a gazebo, two playgrounds, an amphitheater, a lighted softball field and six lighted tennis courts. It is centrally located within the City with onsite parking and is adjacent to the Cupertino Senior Center, Quinlan Community Center, and Cupertino Sports Center.

Memorial Park also houses Cupertino Veterans Memorial which honors local veterans.

This Park serves the entire community and hosts a variety of large community and civic focused events.

The Park is one of the largest, and most well-used parks in the Cupertino Park system.

The City Parks and Recreation System Master Plan’s (Master Plan) vision for Memorial Park highlights expansion of civic event spaces and community hub experiences by 110
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providing a unifying focus to the surrounding existing City facilities, and by enhancing natural site features. The Memorial Park Specific Plan will provide a plan and recommendations that enhance Memorial Park’s unique identity, create a sense of place, and grow a unique expression of the park to achieve a balance between the built and natural environments.

Discussion
The purpose of the Memorial Park Specific Plan is to determine how to best meet the future recreation, community gathering, event, and open space needs of residents through enhancement of the site, following the findings and recommendations of the Master Plan. The Consultant will drive the project from research, design, and community input/outreach to gaining approvals and phasing for future projects derived from this Plan.

The City advertised for qualifications on February 4. The submittals were opened on March 4. A total of two submissions were received, and both firms were interviewed.

Based upon the review of the submittals and the interviews, followed by reference checks, Gates was deemed the most qualified submittal. Contract and fee negotiations proceeded, and a mutual agreement was reached.

Staff anticipates significant efforts in Community Engagement as this design project develops over the next 12-18 months. The resulting Specific Plan will allow for phased project implementation. Projects that are identified through the Specific Plan will require additional design and documentation services prior to bidding and construction.

Sustainability Impact
The development of the Specific Plan will consider the City’s existing sustainability policies and objectives including those contained in the General Plan, the Sustainability Element, and the Climate Action Plan.

Fiscal Impact
The Fiscal Year (FY) 2021-2022 Capital Improvement Project (CIP) budget for the Memorial Park Specific Plan was included in budget unit 280-99-255. The City requests to transfer these funds to the Capital Improvement Fund (420-99-255) for better project funding alignment. An additional appropriation of funds is requested in the amount of $150,000. The additional costs will be funded by the Capital Reserve fund (420-99-001). If approved the estimated year-end fund balance of the Capital Reserve is estimated at $9.3 million. If all recommended budget adjustments are approved, the total project budget will be $650,000.
_____________________________________
Prepared by: Ayano Hattori, Project Manager
Reviewed by: Matt Morley, Director of Public Works
Reviewed and Approved for Submission by: Dianne Thompson, Acting City Manager 111
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Attachments:

A – Draft Contract
B – Draft Resolution
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Attachment B
RESOLUTION NO. XX-XXX

A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING THE CAPITAL IMPROVEMENT BUDGET FOR FISCAL YEAR 2022-23 BY

APPROPRIATING MONIES FOR THE MEMORIAL PARK SPECIFIC PLAN

PROJECT
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects, and programs and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund allocations and ratifies the attached amended appropriations as set forth in Exhibit A.

PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 7
th day of July, 2022, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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Resolution No. __________________ Attachment B
SIGNED:
________
Darcy Paul, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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EXHIBIT A
Appropriation
Amendment by
Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
(Use of)
Special Revenue
Fund
($500,000) $0 $500,000
Capital
Improvement
Fund
$500,000 $0 ($500,000)
Capital
Improvement
Fund
$150,000 $0 ($150,000)
Total
Appropriation
Amendment
$150,000 $0 ($150,000)
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CITY OF CUPERTINO
Agenda Item
22-11123 Agenda Date: 7/7/2022
Agenda #: 12.

Subject: Consider conforming Mitigation Measure NOISE-1 for 22690 Stevens Creek Boulevard (Alan Row) and 10625 S. Foothill Boulevard (Canyon Crossing Mixed-Use Project) with noticing requirements in the Cupertino Municipal Code (CMC) Chapter 17.04.

That the City Council adopt the following resolutions (Attachments A & B):

1. Resolution No. 22-081 approving a modification to Mitigation Measure NOISE-1 for 22690 Stevens Creek Boulevard (Alan Row).

2. Resolution No. 22-082 approving a modification to Mitigation Measure NOISE-1 for 10625 S.

Foothill Boulevard (Canyon Crossing Mixed-Use Project).

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CITY COUNCIL STAFF REPORT
Meeting Date: July 7, 2022
Subject
Consider conforming Mitigation Measure NOISE-1 for 22690 Stevens Creek Boulevard (Alan Row) and 10625 S. Foothill Boulevard (Canyon Crossing Mixed-Use Project) with noticing requirements in the Cupertino Municipal Code (CMC) Chapter 17.04.

Recommended Action
That the City Council adopt the following resolutions (Attachments A & B):

1. Resolution No. 22-XX approving a modification to Mitigation Measure NOISE-1 for 22690 Stevens Creek Boulevard (Alan Row).

2. Resolution No. 22-XX approving a modification to Mitigation Measure NOISE-1 for 10625 S. Foothill Boulevard (Canyon Crossing Mixed-Use Project).

Background
Alan Row (Bateh Brothers) and Canyon Crossing Project Approvals On January 13, 20221, City Council approved Resolution No. 22-007 (Attachment C) to adopt a Mitigated Negative Declaration (Attachment D), mitigation measures as conditions of approval of the project, and a mitigation monitoring and reporting program (MMRP) for the development of nine-unit single-family homes and one accessory dwelling unit located at 22690 Stevens Creek Boulevard.

At the same meeting, City Council approved Resolution No. 22-001 (Attachment E) to adopt a Mitigated Negative Declaration (Attachment F), mitigation measures as conditions of approval, and a MMRP for the development of a mixed-use project consisting of 18-units and approximately 4,500 square feet of commercial space located at 10625 S. Foothill Boulevard.

1 1/13/22 City Council Meeting can be accessed here:
https://cupertino.legistar.com/LegislationDetail.aspx?ID=5373585&GUID=89E06509-2BB8-4CABA856-ECAA4F45C297&Options=&Search= 167
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2 Discussion
Mitigation Measure NOISE-1
The Initial Study/Mitigated Negative Declaration (IS/MND) for both projects incorporate mitigation measures to address impacts from construction noise. As part of Mitigation Measure NOISE-1, the applicant is required to notify all off-site businesses and residents within 300 feet of the project site of the planned activities at least 90 days prior to the start of any construction, demolition, or grading activities to inform affected neighbors about the activity and provide contact information for authorized representatives who would respond in the event of a complaint related to noise or vibration.

Cupertino Municipal Code (CMC) Chapter 17.04.

On November 2, 2021, the City Council adopted CMC Chapter 17.04 to identify standard environmental protection requirements that all construction, site improvement, and other related or similar projects must meet including, but not limited to, environmental mitigation measures identified in any environmental documents required as part of the 2014 General Plan update. CMC Section 17.04.050(G)(1)(a) requires that, at least 10 days prior to the start of any demolition, ground disturbing, or construction activity, the project applicant must send notices of the planned activity to off-site businesses and residents. The ordinance identifies a radius within which noticing must be done depending on the size of the project. For the two projects being discussed here, projects on sites that are more than 0.5 acres or four or more residential units, the notice must be sent to property owners within 500 feet of the project site. Noticing language standards and details per CMC Section 17.04.050(G)(1)(a) are the same as those outlined in Mitigation Measure NOISE-1. The standards in CMC Chapter 17.04 were adopted after environmental documents were completed and presented to the Environmental Review Committee on October 28, 2021. As a result, the requirements of CMC Section

17.04.050(G)(1)(a) were not reflected in the MNDs presented to Planning Commission and Council for the Alan Row and Canyon Crossing Projects.

At this time, the project applicants for both projects are requesting an amendment to Mitigation Measure NOISE-1 to be consistent with the construction noise noticing requirements of CMC Section 17.04.050(G)(1)(a) for a 10-day notice period at 500 feet of the project site instead of a 90-day notice at 300 feet. This amendment would conform to the environmental standards that will be applied to all new projects moving forward after November 2021.

Modification of a mitigation measure requires reconsideration of the environmental review conducted for the Alan Row and Canyon Crossing Projects. Where none of the 168
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3 conditions set forth in 14 Cal. Code Regs. Section 15162(a) are met,2 an addendum may be adopted to implement a minor or technical correction to an adopted MND. Because the MND for each of the projects was adopted by Council, Council must determine whether to approve addenda to the MNDs. No recirculation of the CEQA documents or public hearing is required to approve an addendum.

The environmental consultant that prepared the MNDs (as well as Chapter 17.04), PlaceWorks, has prepared addenda to the MNDs for the Council’s consideration. The addenda support a determination that none of the conditions set forth in 14 Cal. Code Regs. Section 15162(a) are met and that addenda may be adopted to modify the mitigation measures for noticing for the Alan Row and Canyon Crossing Projects, in order to make noticing requirements consistent with CMC Section 17.04.050(G)(1)(a). For further discussion, please see the addenda prepared by PlaceWorks (Attachments G & H).

2 14 Cal. Code Regs. Section 15262(a) states:

When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following:
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.
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4 Next Steps
The City Council’s decision will be final unless reconsidered within 10 days of the decision.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

Prepared by: Erika Poveda, Associate Planner
Jeffrey Tsumura, Associate Planner
Piu Ghosh, Planning Manager
Reviewed by: Albert Salvador, Assistant Director of Community Development Christopher Jensen, City Attorney
Approved by: Dianne Thompson, Assistant City Manager
Attachments:

A – Draft Resolution No. 22-XX amending Mitigation Measure NOISE-1 for Alan Row B – Draft Resolution No. 22-XX amending Mitigation Measure NOISE-1 for Canyon Crossing Mixed-Use Project
C - Resolution No. 22-007 (Alan Row)
D - Alan Row IS/MND
E - Resolution No. 22-001 (Canyon Crossing)
F - Canyon Crossing IS/MND
G - Alan Row IS/MND Addendum
H - Canyon Crossing Mixed-Use Project IS/MND Addendum
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DRAFT RESOLUTION NO. ______

A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING
MITIGATION MEASURE NOISE-1 FOR THE DEVELOPMENT (ALAN ROW) AT 22690 STEVENS CREEK BOULEVARD
(APN: 342-14-066, 342-14-104 & 105)
SECTION I: PROJECT DESCRIPTION
Application No.: EA-2020-001
Applicant: Alan Enterprises, LLC.

Location: 22690 Stevens Creek Boulevard;
APNs # 342-14-066, 342-14-104 & 105
SECTION II: ENVIRONMENTAL REVIEW PROCESS
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code Section 21000 et seq.) (“CEQA”) and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), the City prepared an Initial Study and proposed Mitigated Negative Declaration (“Project”); and
WHEREAS, on October 28, 2021, the City of Cupertino’s Environmental Review Committee held a duly noticed public hearing to receive public testimony and reviewed and considered the information contained in the Draft IS/MND, and voted 5-0-0 to recommend that the City Council adopt the Draft IS/MND (EA-2020-001) and mitigation measures; and
WHEREAS, on November 23, 2021, the Planning Commission held a duly noticed public hearing to receive staff’s presentation and public testimony, and to consider the information contained in the IS/MND along with all staff reports, other pertinent documents, and all written and oral statements received prior to and at the public hearing, and recommended on a 4-1-0 (Wang no) vote, based on substantial evidence in the record, that the City Council adopt the MND, adopt and incorporate into the Project and implement as conditions of approval all of the mitigation measures for the project that are identified in the IS/MND, and adopt the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, on January 13, 2022, the City Council held a duly noticed public hearing to receive staff’s presentation and public testimony, and to further consider the information contained in the IS/MND, along with all staff reports, other pertinent documents, and all 171
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written and oral statements received prior to and at the public hearing and voted 5-0-0 to approve Resolution No. 22-007 to adopt a Mitigated Negative Declaration for the development of nine-unit single-family homes and one accessory dwelling unit (“Project”) at 22690 Stevens Creek Boulevard; and
WHERAS, the adopted MND for the project incorporates a mitigation measure to address impacts from construction noise (Mitigation Measure NOISE-1), which provides that the applicant is required to notify all off-site businesses and residents within 300 feet of the project site of the planned activities at least 90 days prior to the start of any construction, demolition, or grading activities to inform affected neighbors about the activity; and WHEREAS, the City of Cupertino City Council enacted Ordinance 21-2232 to add Chapter 17.04 (Standard Environmental Protection Requirements) to the Cupertino Municipal Code on November 2, 2021; and
WHEREAS, a provision of Ordinance 21-2232, Cupertino Municipal Code Section

17.04.050(G)(1)(a), requires that, at least 10 days prior to the start of any demolition, ground disturbing, or construction activity, the project applicant must send notices of the planned activity to off-site businesses and residents, and that the notice must be sent to property owners within 500 feet of the project site for this Project; and WHEREAS, the Project applicant has requested that the Project comply with Cupertino Municipal Code Section 17.04.050(G)(1)(a) in lieu of the approved Mitigation Measure NOISE-1; and
WHEREAS, in considering the request for the Project to comply with construction noise noticing requirements in Section 17.04.050(G)(1)(a) in lieu of approved Mitigation Measure NOISE-1, the City Council finds that none of the conditions set forth in 14 Cal.

Code Regs. Section 15162(a) that would require the preparation of a subsequent Mitigation Negative Declaration or Environmental Impact Report are present, and the preparation of an EIR addendum satisfies all applicable CEQA requirements.

NOW, THEREFORE, BE IT RESOLVED:

That after careful consideration, the City Council, in accordance with in 14 Cal. Code Regs. Section 15162, amends Mitigation Measure NOISE-1 for the Project to be consistent with CMC Chapter 17.04.050(G)(1)(a).
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PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 7
th day of July 2022 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
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DRAFT RESOLUTION NO. ______

A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING
MITIGATION MEASURE NOISE-1 FOR THE MIXED-USE DEVELOPMENT (CANYON CROSSING) AT 10625 SOUTH FOOTHILL BOULEVARD
(APN: 342-16-087 & 088)
SECTION I: PROJECT DESCRIPTION
Application No.: EA-2018-06
Applicant: Dan Shaw (SCR Enterprises)
Location: 10625 South Foothill Boulevard (APN#s 342-16-087 & 088) SECTION II: ENVIRONMENTAL REVIEW PROCESS
WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code Section 21000 et seq.) (“CEQA”) and the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), the City prepared an Initial Study and proposed Mitigated Negative Declaration (“Project”); and
WHEREAS, on October 28, 2021, the City of Cupertino’s Environmental Review Committee held a duly noticed public hearing to receive public testimony and reviewed and considered the information contained in the Draft IS/MND, and voted 5-0-0 to recommend that the City Council adopt the Draft IS/MND (EA-2018-06) and mitigation measures; and
WHEREAS, on November 23, 2021, the Planning Commission held a duly noticed public hearing to receive staff’s presentation and public testimony, and to consider the information contained in the IS/MND along with all staff reports, other pertinent documents, and all written and oral statements received prior to and at the public hearing, and recommended on a 5-0-0 vote, based on substantial evidence in the record, that the City Council adopt the MND, adopt and incorporate into the Project and implement as conditions of approval all of the mitigation measures for the project that are identified in the IS/MND, and adopt the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, on January 13, 2022 the City Council held a duly noticed public hearing to receive staff’s presentation and public testimony, and to further consider the information contained in the IS/MND, along with all staff reports, other pertinent documents, and all written and oral statements received prior to and at the public hearing and voted 5-0-0 to 174
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approve Resolution No. 22-001 on January 13, 2022 to adopt a Mitigated Negative Declaration for the development of a new mixed-use development consisting eighteen (18) residential units and 4,500 sq. ft. of commercial with associated site and landscaping improvements (“Project”); and
WHERAS, the adopted MND for the project incorporates a mitigation measure to address impacts from construction noise (Mitigation Measure NOISE-1), which provides that the applicant is required to notify all off-site businesses and residents within 300 feet of the project site of the planned activities at least 90 days prior to the start of any construction, demolition, or grading activities to inform affected neighbors about the activity; and WHEREAS, the City of Cupertino City Council enacted Ordinance 21-2232 to add Chapter 17.04 (Standard Environmental Protection Requirements) to the Cupertino Municipal Code on November 2, 2021; and
WHEREAS, a provision of Ordinance 21-2232, Cupertino Municipal Code Section

17.04.050(G)(1)(a), requires that, at least 10 days prior to the start of any demolition, ground disturbing, or construction activity, the project applicant must send notices of the planned activity to off-site businesses and residents, and that the notice must be sent to property owners within 500 feet of the project site for this Project; and WHEREAS, the Project applicant has requested that the Project comply with Cupertino Municipal Code Section 17.04.050(G)(1)(a) in lieu of the approved Mitigation Measure NOISE-1; and
WHEREAS, in considering the request for the Project to comply with construction noise noticing requirements in Section 17.04.050(G)(1)(a) in lieu of approved Mitigation Measure NOISE-1, the City Council finds that none of the conditions set forth in 14 Cal.

Code Regs. Section 15162(a) that would require the preparation of a subsequent Mitigation Negative Declaration or Environmental Impact Report are present, and the preparation of an EIR addendum satisfies all applicable CEQA requirements.

NOW, THEREFORE, BE IT RESOLVED:

That after careful consideration, the City Council, in accordance with in 14 Cal. Code Regs. Section 15162, amends Mitigation Measure NOISE-1 for the Project to be consistent with CMC Chapter 17.04.050(G)(1)(a).
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PASSED AND ADOPTED at a special meeting of the City Council of the City of Cupertino this 7
th day of July, 2022 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
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RESOLUTION NO. 22- 007

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

ADOPTING A MITIGATED NEGATIVE DECLARATION, MITIGATION

MEASURES, AND A MITIGATION MONITORING AND REPORTING
PROGRAM FOR THE DEVELOPMENT OF A NINE ( 9) UNIT SINGLEFAMILY HOME DEVELOPMENT AND ONE ACCESSORY DWELLING UNIT (ADU) LOCATED 22690 STEVENS CREEK BOULEVARD
APN: 341- 14- 066, 342- 14- 104 & 105)
SECTION I: PROTECT DESCRIPTION
Application No.: EA- 2020- 001
Applicant: Alan Enterprises LLC
Location: 22690 Stevens Creek Boulevard;
APN# s 341- 14- 066, 342- 14- 104 & 105
SECTION II: ENVIRONMENTAL REVIEW PROCESS
WHEREAS, the City of Cupertino received an application for a Zoning Map Amendment, Development Permit, Architectural and Site Approval, Use Permit, and Tentative Map, to allow the development of a nine ( 9) unit single- family home development with one ( 1) home containing an Accessory Dwelling Unit ( ADU) associated site and landscaping improvements, and associated environmental review (" Project"); and, WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 ( Public Resources Code Section 21000 et seq.) (" CEQA") and the State CEQA Guidelines ( California Code of Regulations, Title 14, Section 15000 et seq.) (" CEQA Guidelines"), the City prepared an Initial Study and proposed Mitigated Negative Declaration (" Project"); and
WHEREAS, the Project is described in the June 2021 " Public Draft Initial Study for The 22690 Stevens Creek Project (" Draft IS/ MND"); and
WHEREAS, on July 16, 2021 the City issued a Notice of Intent to Adopt a Mitigated Negative Declaration; and
WHEREAS, on July 16, 2021the IS/ MND for the project was distributed to responsible agencies and the public for review and comment for a 20- day period that ended August 5, 2021; and
WHEREAS, the IS/ MND concluded that significant environmental effects on Air Quality, Biological Resources, Cultural Resources, Geology and Soils, Noise, Tribal Cultural 177
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Resolution No. 22- 007