CERTIFICATION
The Administrative Services Director hereby certifies to the accuracy of said records and to the availability of funds for payment.
CERTIFIED:
Kristina Alfaro, Director of Administrative Services
322
CC 03-07-2023
322 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
Main Account - Main Checking Account
Check
731890 02/03/2023 Open Accounts Payable ALHAMBRA $136.79 Invoice Date Description Amount
21589707 011923 01/19/2023 Service Center - Employee Drinking Water $19.47 4984729 012123 01/21/2023 Employee Drinking Water for QCC & Senior Center $117.32 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$136.79
731891 02/03/2023 Open Accounts Payable Anagha Kulkarni $140.00 Invoice Date Description Amount
012223 AK 01/22/2023 January Fitness classes $140.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$140.00
731892 02/03/2023 Open Accounts Payable Aquatic Central $3,000.00 Invoice Date Description Amount
100004 01/15/2023 Facililties - Jan 2023 Library Aquarium Maint. $3,000.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$3,000.00
731893 02/03/2023 Open Accounts Payable AT&T $3,168.85
Invoice Date Description Amount
000019338117 01/12/2023 911 Telephone lines - 12/12/2022 - 01/11/2023 $176.53 000019328527 01/10/2023 9391051384 12/10/22-1/9/23 $2,992.32 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$2,872.63
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$119.69
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$176.53
731894 02/03/2023 Open Accounts Payable Automatic Door Systems, Inc. $511.25 Invoice Date Description Amount
54572 01/11/2023 Facilities - Senior Center Front Entrance DBL Slider $511.25 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$511.25
731895 02/03/2023 Open Accounts Payable Bay Area Self Storage - Cupertino $678.00 Invoice Date Description Amount
22478 01/17/2023 Facilities - Feb 2023 Storage Fees $678.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$678.00
731896 02/03/2023 Open Accounts Payable CALIFORNIA WATER SERVICE $4,614.04 Invoice Date Description Amount
3333-012623 01/26/2023 5926633333 12/17/22-1/19/23 $4,614.04 Paying Fund Cash Account Amount
user: Vi Tran Pages: 1 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 323
CC 03-07-2023
323 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$4,614.04
731897 02/03/2023 Open Accounts Payable CenturyLink $76.32 Invoice Date Description Amount
047R -120722 12/07/2022 Emergency Out of Area Phone line $38.16 047R-010723 01/07/2023 Emergency Out of Area Phone line $38.16 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$76.32
731898 02/03/2023 Open Accounts Payable Christopher Jensen $226.75 Invoice Date Description Amount
01.27.2023 01/27/2023 Reimbursement, League of Cities 01.27.23 $226.75 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$226.75
731899 02/03/2023 Open Accounts Payable County of Santa Clara -Office of the Sheriff
$70.00
Invoice Date Description Amount
1800084247 01/11/2023 LIVE SCAN DEC 22 $70.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$70.00
731900 02/03/2023 Open Accounts Payable David L. Gates and Associates, Inc. $37,233.87 Invoice Date Description Amount
56305 12/31/2022 Memorial Park Specific Plan through 12312022 $37,233.87 Paying Fund Cash Account Amount
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$37,233.87
731901 02/03/2023 Open Accounts Payable Grassroots Ecology $18,502.00 Invoice Date Description Amount
CUST1222 12/31/2022 qtrly pmt for McClellan Ranch Habitat restoration project
$18,502.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$18,502.00
731902 02/03/2023 Open Accounts Payable HARRY L. MURPHY, INC. $56,640.00 Invoice Date Description Amount
26378 01/24/2023 Facilities - City Hall Basement Carpet $56,640.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$56,640.00
731903 02/03/2023 Open Accounts Payable HNTB CORPORATION $12,722.50 Invoice Date Description Amount
2-81738-DS-001 01/20/2023 Don Burnett Bicycle Footbridge Inspection $12,722.50 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$12,722.50
user: Vi Tran Pages: 2 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 324
CC 03-07-2023
324 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
731904 02/03/2023 Open Accounts Payable HUICHEN LIN $468.00 Invoice Date Description Amount
012223 HL 01/22/2023 January Fitness classes $468.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$468.00
731905 02/03/2023 Open Accounts Payable HY FLOOR & GAMELINE PAINTING, INC.
$34,788.05
Invoice Date Description Amount
22250-01 01/13/2023 Facilities - Sports Center Racquetball Court Refinishing $16,320.05 22249-01 01/06/2023 Facilities - QCC Stage Floor Refinishing $18,468.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$18,468.00
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$16,320.05
731906 02/03/2023 Open Accounts Payable IRON MOUNTAIN $3,935.46 Invoice Date Description Amount
HGMJ760 01/31/2023 City Clerk Office Storage - 02/01/2023 - 02/28/2023 $3,935.46 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$3,935.46
731907 02/03/2023 Open Accounts Payable LISA EGERT-SMITH $50.00 Invoice Date Description Amount
02082023 02/01/2023 February BDB Entertainment Performance $50.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$50.00
731908 02/03/2023 Open Accounts Payable Matthew G Silva Photography $822.00 Invoice Date Description Amount
102997-000186 01/17/2023 Photography of CC and CM $822.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$822.00
731909 02/03/2023 Open Accounts Payable NAPA AUTO PARTS $53.37 Invoice Date Description Amount
785214 09/02/2022 Fleet - Lift Sup $53.37
Paying Fund Cash Account Amount
630 - Vehicle/Equip Replacement 630 100-100 (Cash & Investments Assets Operating Cash)
$53.37
731910 02/03/2023 Open Accounts Payable Napa Auto Parts $56.44 Invoice Date Description Amount
688431 12/12/2022 Fleet - Switch - Combination $56.44
Paying Fund Cash Account Amount
630 - Vehicle/Equip Replacement 630 100-100 (Cash & Investments Assets Operating Cash)
$56.44
user: Vi Tran Pages: 3 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 325
CC 03-07-2023
325 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
731911 02/03/2023 Open Accounts Payable Napa County Landmarks, Inc. $100.00 Invoice Date Description Amount
158 01/27/2023 Deposit for Riverfront Captains & Mansions Trip 04/04/2023
$100.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$100.00
731912 02/03/2023 Open Accounts Payable Occupational Health Centers of California, A Medi
$64.00
Invoice Date Description Amount
77712599 12/19/2022 TB Test- A. Singhal, M. Lam $64.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$64.00
731913 02/03/2023 Open Accounts Payable Opera San Jose $410.00 Invoice Date Description Amount
01252023 01/24/2023 Senior Trip - Verdi's Falstaff 02/09/2023 $410.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$410.00
731914 02/03/2023 Open Accounts Payable PACE Supply Corp $3,083.11 Invoice Date Description Amount
128303086 01/17/2023 Facilities - Handwash Sink, Drain, Batt ADA $3,083.11 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$3,083.11
731915 02/03/2023 Open Accounts Payable PG&E $120.46
Invoice Date Description Amount
8413-012723 01/27/2023 4685859841-3 12/21/22-1/22/23 $120.46 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$120.46
731916 02/03/2023 Open Accounts Payable PG&E $9.96
Invoice Date Description Amount
1937-012623 01/26/2023 8754273193-7 12/20/22-1/19/23 $9.96 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$9.96
731917 02/03/2023 Open Accounts Payable PG&E $38.27
Invoice Date Description Amount
0719-012523 01/25/2023 9223068071-9 12/19/22-1/18/23 $38.27 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$38.27
731918 02/03/2023 Open Accounts Payable REGISTRAR OF VOTERS $120,921.00 Invoice Date Description Amount
NOV22-007 01/13/2023 Final billing - November 2022 General Election $120,921.00 Paying Fund Cash Account Amount
user: Vi Tran Pages: 4 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 326
CC 03-07-2023
326 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$120,921.00
731919 02/03/2023 Open Accounts Payable RPM EXTERMINATORS INC $500.00 Invoice Date Description Amount
0099687 01/10/2023 Facilities - McClellan Ranch Ants Outside $500.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$500.00
731920 02/03/2023 Open Accounts Payable SHAWN TOGNETTI $48.94 Invoice Date Description Amount
ShawnT12082022 12/08/2022 Shawn T. Cityworks Conference $48.94 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$48.94
731921 02/03/2023 Open Accounts Payable SIERRA PACIFIC TURF SUPPLY, INC.
$137.50
Invoice Date Description Amount
0634752-IN 01/23/2023 Trees/ROW - Reacher EZ 32" $137.50 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$137.50
731922 02/03/2023 Open Accounts Payable Signia by Hilton San Jose $1,640.00 Invoice Date Description Amount
02092023 01/30/2023 Senior Trip - Brunch at Fountain Restaurant 02/09/2023
$1,640.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$1,640.00
731923 02/03/2023 Open Accounts Payable SolarWinds $14,147.34 Invoice Date Description Amount
IN590576 01/31/2023 SolarWinds Performance Monitor Maintenance 4/14/23 - 06/30/24
$14,147.34
Paying Fund Cash Account Amount
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$14,147.34
731924 02/03/2023 Open Accounts Payable SONIA DOGRA $234.00 Invoice Date Description Amount
012223 SD 01/22/2023 January Fitness classes $234.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$234.00
731925 02/03/2023 Open Accounts Payable Statcomm Inc. $15,671.25 Invoice Date Description Amount
C011553 12/01/2022 Facilities - Q4 2022 Test & Inspection Monte Vista $821.25 C011550 12/01/2022 Facilities - Q4 2022 Test & Inspection Service Center $821.25 C011552 12/01/2022 Facilities - Q4 2022 Test & Inspection Env Ed Center $1,511.25 C011546 12/01/2022 Facilities - Q4 2022 Test & Inspection City Hall $1,856.25 C011547 12/01/2022 Facilities - Q4 2022 Test & Inspection Comm Hall $1,856.25 user: Vi Tran Pages: 5 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 327
CC 03-07-2023
327 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
C011548 12/01/2022 Facilities - Q4 2022 Test & Inspection Library $2,201.25 C011549 12/01/2022 Facilities - Q4 2022 Test & Inspection Senior Center $2,201.25 C011551 12/01/2022 Facilities - Q4 2022 Test & Inspection Sports Center $2,201.25 C011554 12/01/2022 Facilities - Q4 2022 Test & Inspection QCC $2,201.25 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$13,470.00
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$2,201.25
731926 02/03/2023 Open Accounts Payable SVA Architects, Inc. $1,697.00 Invoice Date Description Amount
59913 09/30/2022 Landscape Design for Cupertino Library through 09302022
$1,697.00
Paying Fund Cash Account Amount
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$1,697.00
731927 02/03/2023 Open Accounts Payable SWANK MOTION PICTURES, INC. $285.00 Invoice Date Description Amount
BO 2003589 01/26/2023 Swank, Minions Movie License; YAB Movie Night $285.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$285.00
731928 02/03/2023 Open Accounts Payable SWRCB Accounting Office $26,498.00 Invoice Date Description Amount
SW-0241901 11/29/2022 Annual Storm Water Permit Fees FY22/23 $26,498.00 Paying Fund Cash Account Amount
230 - Env Mgmt Cln Crk Strm Drain 230 100-100 (Cash & Investments Assets Operating Cash)
$26,498.00
731929 02/03/2023 Open Accounts Payable TARGET SPECIALTY PRODUCTS $567.50 Invoice Date Description Amount
INVP501037806 01/26/2023 Grounds - Spray Gun, Coverall, Mole Trap, Pro Spreader, Cleaner
$567.50
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$567.50
731930 02/03/2023 Open Accounts Payable Western Allied Mechanical $2,580.00 Invoice Date Description Amount
12464361 11/30/2022 Facilities - QCC Boiler Annual $2,580.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$2,580.00
731931 02/03/2023 Open Accounts Payable Hui, David $385.00 Invoice Date Description Amount
2023-00000451 01/19/2023 Reimbursement for Assistant Pool Manager Training (WSI & epi-pen)
$385.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$385.00
user: Vi Tran Pages: 6 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 328
CC 03-07-2023
328 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
731932 02/03/2023 Open Accounts Payable Ke, Laurier $400.00 Invoice Date Description Amount
2023-00000431 12/05/2022 Reimbursement for Red Cross Lifeguarding class - Swimming Swan
$400.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$400.00
731933 02/03/2023 Open Accounts Payable SILAWATCHARAPOL, SIRILAK $36,200.00 Invoice Date Description Amount
203917 01/30/2023 10104 Byrne Ave, Encroachment, 203917 $36,200.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$36,200.00
731934 02/03/2023 Open Accounts Payable Tommy Yu $34.99 Invoice Date Description Amount
Yu012423 01/24/2023 LiveScan and Fingerprinting Reimbursement $34.99 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$34.99
731935 02/03/2023 Open Accounts Payable Zoom Video Communications Inc. $33,004.44 Invoice Date Description Amount
Zoom012623 01/26/2023 paid UUT Tax to Cupertino in error. should be for other city
$33,004.44
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$33,004.44
731936 02/03/2023 Open Accounts Payable Operating Engineers Local Union No. 3 $1,464.64
Invoice Date Description Amount
01272023 01/27/2023 Union Dues pp 1/14/23-1/27/23 $1,464.64 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$1,464.64
Type Check Totals: 47 Transactions $438,136.09
EFT
36211 01/31/2023 Open Accounts Payable California Department of Tax & Fee Administration
$1,413.00
Invoice Date Description Amount
QTR4-2022 01/30/2023 SR GH 026-818149 Sales/Use Tax OCT22-DEC22 $1,413.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$248.81
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$873.36
560 - Blackberry Farm 560 100-100 (Cash & Investments Assets Operating Cash)
$288.52
630 - Vehicle/Equip Replacement 630 100-100 (Cash & Investments Assets Operating Cash)
$2.31
user: Vi Tran Pages: 7 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 329
CC 03-07-2023
329 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
36212 02/03/2023 Open Accounts Payable ABOLI JAYDEEP RANADE $156.00 Invoice Date Description Amount
012223 AR 01/22/2023 January Fitness classes $156.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$156.00
36213 02/03/2023 Open Accounts Payable Amazon Capital Services $664.81 Invoice Date Description Amount
1DG7-NRD4-NCVV 01/09/2023 1x Data Governance For Dummies (For Dummies (Computer/tech))
$37.89
1RXQ-RYW6-MQCV 01/16/2023 4x Hpe Aruba JW053A White Wall/Pole Mounting Kit for AP-274/AP-2
$524.28
1DWL-77XT-49W3 01/30/2023 1x TEAMGROUP Elite DDR4 32GB Kit (2 x 16GB) 3200MHz (PC4-25600)
$74.53
1R3C-QDKX-66RD 01/30/2023 1x Dust-Off 10 oz Compressed Gas Duster, Pack of 4 $28.11 Paying Fund Cash Account Amount
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$664.81
36214 02/03/2023 Open Accounts Payable Amit Goel $273.00 Invoice Date Description Amount
012223 AG 01/22/2023 January Fitness classes $273.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$273.00
36215 02/03/2023 Open Accounts Payable BECK'S SHOES INC. $800.00 Invoice Date Description Amount
263001-00 01/20/2023 Safety Apparel Boots - Ty Bloomquist & John Ramos $800.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$800.00
36216 02/03/2023 Open Accounts Payable Bikeep Inc. $49.00 Invoice Date Description Amount
17923 01/31/2023 Monthly Bikeep Fee $49.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$49.00
36217 02/03/2023 Open Accounts Payable Callander Associates Landscape Architecture
$526.00
Invoice Date Description Amount
21059-10 01/31/2023 Wilson Park Community Garden through 12312022 $526.00 Paying Fund Cash Account Amount
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$526.00
36218 02/03/2023 Open Accounts Payable City of San Jose $4,000.00 Invoice Date Description Amount
1222484 01/24/2023 Storm Drain Maintenance Joint Participation 4 storm outfalls
$4,000.00
Paying Fund Cash Account Amount
user: Vi Tran Pages: 8 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 330
CC 03-07-2023
330 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
230 - Env Mgmt Cln Crk Strm Drain 230 100-100 (Cash & Investments Assets Operating Cash)
$4,000.00
36219 02/03/2023 Open Accounts Payable CROWE LLP $40,000.00 Invoice Date Description Amount
701-2614269 01/31/2023 Professional Services for the period ended JAN 12 2023
$40,000.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$40,000.00
36220 02/03/2023 Open Accounts Payable CSG Consultants, Inc. $962.00 Invoice Date Description Amount
48429-R 01/09/2023 Regnart Creek Fencing through 12302022 $962.00 Paying Fund Cash Account Amount
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$962.00
36221 02/03/2023 Open Accounts Payable Cupertino Supply, Inc $41.05 Invoice Date Description Amount
311218 01/19/2023 Grounds -Polypropylene Union Tee 3/8 $41.05 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$41.05
36222 02/03/2023 Open Accounts Payable Cyxtera Communications, LLC $3,585.42 Invoice Date Description Amount
B1-2304373 11/01/2022 FY23 Colocation Services - December 2022 $1,179.51 B1-2312008 12/01/2022 FY23 Colocation Services - January 2023 $1,179.51 B1-2317398 01/01/2023 FY23 Colocation Services - February 2023 $1,226.40 Paying Fund Cash Account Amount
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$3,585.42
36223 02/03/2023 Open Accounts Payable DELL MARKETING L.P. $43,533.82 Invoice Date Description Amount
10648457000 01/30/2023 45x Adobe Creative Cloud & 143x VLA Acrobat Pro dc Licenses
$43,533.82
Paying Fund Cash Account Amount
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$43,533.82
36224 02/03/2023 Open Accounts Payable FolgerGraphics $3,039.13 Invoice Date Description Amount
134779 01/23/2023 Memorial Park Concept Plan Postcard Mailer $3,039.13 Paying Fund Cash Account Amount
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$3,039.13
36225 02/03/2023 Open Accounts Payable GARDENLAND POWER
EQUIPMENT
$425.85
Invoice Date Description Amount
983736 01/20/2023 Trees/ROW - Rake Heads, Alum Handle, Wood Handle
$425.85
Paying Fund Cash Account Amount
user: Vi Tran Pages: 9 of 16 Monday, February 06, 2023
Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 331
CC 03-07-2023
331 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$425.85
36226 02/03/2023 Open Accounts Payable GRACE DUVAL $308.00 Invoice Date Description Amount
012223 GD 01/22/2023 January Fitness classes $308.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$308.00
36227 02/03/2023 Open Accounts Payable GRAINGER INC $751.16 Invoice Date Description Amount
9541889003 12/12/2022 Facilities - Ceiling Tile $111.09 9588954736 01/27/2023 Various Traffic signal Supplies $228.38 9588954710 01/27/2023 Various Traffic signal Supplies $411.69 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$751.16
36228 02/03/2023 Open Accounts Payable Granite Data Solutions $63,588.90 Invoice Date Description Amount
IN81688-1 01/12/2023 45x Dell Latitude 5430 Laptop - Intel Core i5-1235U
1.3GHz CPU
$63,588.90
Paying Fund Cash Account Amount
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$63,588.90
36229 02/03/2023 Open Accounts Payable HdL Coren & Cone $4,799.68 Invoice Date Description Amount
SIN024816 01/24/2023 Contract Services Property Tax: January - March 2023 $4,799.68 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$4,799.68
36230 02/03/2023 Open Accounts Payable InservH2O Inc. $1,107.62 Invoice Date Description Amount
2606 01/09/2023 Facilities - Jan 2023 Water Treatment $272.82 2575 01/09/2023 Facilities - Jan 2023 Water Treatment Multiple Sites $834.80 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$1,107.62
36231 02/03/2023 Open Accounts Payable Jahara Pagadipaala $120.00 Invoice Date Description Amount
012223 JP 01/22/2023 January Fitness classes $120.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$120.00
36232 02/03/2023 Open Accounts Payable JAMES COLVIN $2,496.00 Invoice Date Description Amount
012223 JC 01/22/2023 January PT $2,496.00
Paying Fund Cash Account Amount
user: Vi Tran Pages: 10 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 332
CC 03-07-2023
332 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$2,496.00
36233 02/03/2023 Open Accounts Payable JENNIFER HILL $369.00 Invoice Date Description Amount
012223 JH 01/22/2023 January Fitness classes $369.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$369.00
36234 02/03/2023 Open Accounts Payable John Raaymakers $55.00 Invoice Date Description Amount
JohnR01192023 01/19/2023 Cell Phone Reimbursement through 122022-011923 $55.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$55.00
36235 02/03/2023 Open Accounts Payable KIMBALL-MIDWEST $431.60 Invoice Date Description Amount
100666067 01/17/2023 Fleet - Lock Nut, Heat Seal $431.60 Paying Fund Cash Account Amount
630 - Vehicle/Equip Replacement 630 100-100 (Cash & Investments Assets Operating Cash)
$431.60
36236 02/03/2023 Open Accounts Payable Mallika M Thoppay $120.00 Invoice Date Description Amount
012223 MMT 01/22/2023 January Fitness classes $120.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$120.00
36237 02/03/2023 Open Accounts Payable Melisa Stoner $675.00 Invoice Date Description Amount
012223 MS 01/22/2023 January Fitness classes $675.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$675.00
36238 02/03/2023 Open Accounts Payable MONICA G. RANES-GOLDBERG $546.00 Invoice Date Description Amount
012223 MGRG 01/22/2023 January Fitness classes $546.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$546.00
36239 02/03/2023 Open Accounts Payable Nexinite, LLC $630.00 Invoice Date Description Amount
INV-001745 09/13/2022 Form Digitization Service for August 2022 $630.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$630.00
36240 02/03/2023 Open Accounts Payable ODP Business Solutions, LLC. $213.07 Invoice Date Description Amount
289102742001 01/17/2023 Credit on Kitchen Supplies ($4.60) user: Vi Tran Pages: 11 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 333
CC 03-07-2023
333 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
287014364001 01/12/2023 Office Supply - Admin Svcs - Toner $161.25 285402628001 01/16/2023 Office Supply - Admin Svcs - Battery & Kleenex $56.42 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$213.07
36241 02/03/2023 Open Accounts Payable Pakpour Consulting Group, Inc. $3,500.00 Invoice Date Description Amount
4007 01/10/2023 Stevens Creek Blvd Class IV Bikeway Ph. 2 through 120122-123122
$3,500.00
Paying Fund Cash Account Amount
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$3,500.00
36242 02/03/2023 Open Accounts Payable PLAN JPA $439.00 Invoice Date Description Amount
PLAN-2023-0121 01/20/2023 General Liability Claims - December 2022 $439.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$439.00
36243 02/03/2023 Open Accounts Payable Quench USA, Inc. $268.32 Invoice Date Description Amount
INV05334364 02/01/2023 10300 Torre Ave through 020123-033123 $177.44 INV05325039 02/01/2023 10981 Franco Ct address through 020123-033123 $90.88 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$268.32
36244 02/03/2023 Open Accounts Payable Raychel Renee Balcioni Cruz $1,560.00 Invoice Date Description Amount
012223 RRBC 01/22/2023 January Fitness classes $1,560.00 Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$1,560.00
36245 02/03/2023 Open Accounts Payable Recology South Bay $79,756.83 Invoice Date Description Amount
Jan-23 RY2 01/31/2023 City Payment to Recology Rate Year 2/1/22 - 1/31/23- Jan 2023
$79,756.83
Paying Fund Cash Account Amount
520 - Resource Recovery 520 100-100 (Cash & Investments Assets Operating Cash)
$79,756.83
36246 02/03/2023 Open Accounts Payable Red Wing Business Advantage Account
$975.84
Invoice Date Description Amount
148-1-122126 12/10/2022 Safety Apparel Boots - Michael Kimball $400.00 231-1-162013 12/10/2022 Safety Apparel Boots - Brandon Martinez $339.60 148-1-122837 12/10/2022 Safety Apparel Boots - Kevin Greene $236.24 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$975.84
user: Vi Tran Pages: 12 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 334
CC 03-07-2023
334 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
36247 02/03/2023 Open Accounts Payable Richard Yau $1,350.00 Invoice Date Description Amount
2301 01/25/2023 Master Agreement 2022-002 Various Projects $1,350.00 Paying Fund Cash Account Amount
210 - Storm Drain Improvement 210 100-100 (Cash & Investments Assets Operating Cash)
$75.00
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$1,275.00
36248 02/03/2023 Open Accounts Payable Rojin Karimzad $540.00 Invoice Date Description Amount
012223 RK 01/22/2023 January Fitness classes $540.00
Paying Fund Cash Account Amount
570 - Sports Center 570 100-100 (Cash & Investments Assets Operating Cash)
$540.00
36249 02/03/2023 Open Accounts Payable RS Dislay, Inc. $1,294.77 Invoice Date Description Amount
2566 12/19/2022 Grounds - Re-do Park Sign $1,294.77
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$1,294.77
36250 02/03/2023 Open Accounts Payable San Jose Conservation Corps & Charter School
$3,060.00
Invoice Date Description Amount
7786 09/30/2022 Compost Site Attendants- September 2022 $3,060.00 Paying Fund Cash Account Amount
520 - Resource Recovery 520 100-100 (Cash & Investments Assets Operating Cash)
$3,060.00
36251 02/03/2023 Open Accounts Payable SHUTE, MIHALY & WEINBERGER LLP
$9,744.93
Invoice Date Description Amount
280088 01/25/2023 Legal Services, December 2022 $5,875.86 280089 01/25/2023 Legal Services, December 2022 $3,289.20 279885 01/26/2023 Legal Services, December 2022 $579.87 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$9,744.93
36252 02/03/2023 Open Accounts Payable Sonitrol/Pacific West Security, Inc. $1,050.00 Invoice Date Description Amount
67587 11/30/2022 Sports Center Installation through 01232023 $950.00 69253 12/31/2022 Facilities - Srv Cntr Troubleshoot Lobby Access Problem
$100.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$100.00
420 - Capital Improvement Fund 420 100-100 (Cash & Investments Assets Operating Cash)
$950.00
36253 02/03/2023 Open Accounts Payable Staples $238.48
Invoice Date Description Amount
3525264062 12/10/2022 Staples Order $82.45
user: Vi Tran Pages: 13 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 335
CC 03-07-2023
335 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
3525466044 12/14/2022 Office Paper Order $99.63
3525466045 12/14/2022 Staples Refund Order ($17.18)
3527048659 01/03/2023 Service Center - Clip Wall Panels, Coffee Supplies $73.58 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$238.48
36254 02/03/2023 Open Accounts Payable Statewide Traffic Safety & Signs Inc. $92.96 Invoice Date Description Amount
05039887 01/26/2023 Streets - Black All Season Asphalt Patch $92.96 Paying Fund Cash Account Amount
270 - Transportation Fund 270 100-100 (Cash & Investments Assets Operating Cash)
$92.96
36255 02/03/2023 Open Accounts Payable TERRYBERRY COMPANY LLC $402.35 Invoice Date Description Amount
143069-29535 11/30/2022 Employee Recognition - E. Sigler, T. Gerhardt $402.35 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$402.35
36256 02/03/2023 Open Accounts Payable TRAIL HEAD CYCLERY, INC. $1,287.07 Invoice Date Description Amount
2560 01/12/2023 Invoice for Ebike Maintenance $1,287.07 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$1,287.07
36257 02/03/2023 Open Accounts Payable WOWzy Creation Corp. dba First Place
$28.87
Invoice Date Description Amount
95846 01/30/2023 Victoria M. cubicle name plate $28.87
Paying Fund Cash Account Amount
520 - Resource Recovery 520 100-100 (Cash & Investments Assets Operating Cash)
$28.87
36258 02/03/2023 Open Accounts Payable Colonial Life & Accident Insurance $29.16 Invoice Date Description Amount
01272023 01/27/2023 Colonial Products pp 1/14/23-1/27/23 $29.16 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$29.16
36259 02/03/2023 Open Accounts Payable Employment Development $8,106.00 Invoice Date Description Amount
01272023 01/27/2023 State Disability Insurance pp 1/14/23-1/27/23 $8,106.00 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$8,106.00
36260 02/03/2023 Open Accounts Payable National Deferred (ROTH) $3,864.89 Invoice Date Description Amount
01272023 01/27/2023 Nationwide Roth pp 1/14/23-1/27/23 $3,864.89 Paying Fund Cash Account Amount
user: Vi Tran Pages: 14 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 336
CC 03-07-2023
336 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$3,864.89
36261 02/03/2023 Open Accounts Payable National Deferred Compensatin $24,084.41 Invoice Date Description Amount
01272023 01/27/2023 Nationwide Deferred Compensation pp 1/14/23- 1/27/23
$24,084.41
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$24,084.41
36262 02/03/2023 Open Accounts Payable PERS-457K $16,257.13 Invoice Date Description Amount
01272023 01/27/2023 PERS 457K pp 1/14/23-1/27/23 $16,257.13 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$16,257.13
36263 02/03/2023 Open Accounts Payable State Disbursement Unit $495.73 Invoice Date Description Amount
01272023 01/27/2023 Child Support pp 1/14/23-1/27/23 $495.73 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$495.73
36264 02/03/2023 Open Accounts Payable Eflex Group, Inc $4,396.42 Invoice Date Description Amount
01272023 01/27/2023 FSA Employee Health pp 1/14/23-1/27/23 $4,396.42 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$4,396.42
36265 02/03/2023 Open Accounts Payable IFPTE LOCAL 21 $1,929.45 Invoice Date Description Amount
01272023 01/27/2023 Association Dues - CEA pp 1/14/23-1/27/23 $1,929.45 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$1,929.45
36266 02/03/2023 Open Accounts Payable MissionSquare $15,510.86 Invoice Date Description Amount
01272023 01/27/2023 ICMA Deferred Comp pp 1/14/23-1/27/23 $15,510.86 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$15,510.86
36267 02/03/2023 Open Accounts Payable PARS/City of Cupertino $3,227.65 Invoice Date Description Amount
01272023 01/27/2023 PARS pp 1/14/23-1/27/23 $3,227.65
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$3,227.65
Type EFT Totals: 57 Transactions $359,171.23
Main Account - Main Checking Account Totals
user: Vi Tran Pages: 15 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 337
CC 03-07-2023
337 of 773
Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
Checks Status Count Transaction Amount Reconciled Amount Open 47 $438,136.09 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 47 $438,136.09 $0.00
EFTs Status Count Transaction Amount Reconciled Amount
Open 57 $359,171.23 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Total 57 $359,171.23 $0.00
All Status Count Transaction Amount Reconciled Amount
Open 104 $797,307.32 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 104 $797,307.32 $0.00
Grand Totals:
Checks Status Count Transaction Amount Reconciled Amount Open 47 $438,136.09 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 47 $438,136.09 $0.00
EFTs Status Count Transaction Amount Reconciled Amount
Open 57 $359,171.23 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Total 57 $359,171.23 $0.00
All Status Count Transaction Amount Reconciled Amount
Open 104 $797,307.32 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 104 $797,307.32 $0.00
user: Vi Tran Pages: 16 of 16 Monday, February 06, 2023 Payment Register
**LIVE** Cupertino **LIVE**
From Payment Date: 1/28/2023 - To Payment Date: 2/3/2023 338
CC 03-07-2023
338 of 773
CITY OF CUPERTINO
Agenda Item
23-11896 Agenda Date: 3/7/2023
Agenda #: 6.
Subject: Consider authorizing the City Manager to execute a services agreement with Azteca Systems, LLC., for Cityworks, Cupertino's Asset Management System subscription service, for $217,502.63, plus a contingency of $21,750.26 for a total cost of $239,252.89 over three years
1. Authorize the City Manager to execute a services agreement with Azteca Systems, LLC., for Cityworks, Cupertino's Asset Management System subscription service, for $217,502.63, plus a contingency of $21,750.26 for a total cost of $239,252.89 over three years
2. Find under Municipal Code section 3.22.060(B) that the formal competitive bidding procedures are impractical for procurement
CITY OF CUPERTINO Page 1 of 1 Printed on 3/1/2023
powered by Legistar™339
CC 03-07-2023
339 of 773
CITY COUNCIL STAFF REPORT
Meeting: March 7, 2023
Subject
Consider authorizing the City Manager to execute a services agreement with Azteca Systems, LLC., for Cityworks, Cupertino’s Asset Management System subscription service, for $217,502.63, plus a contingency of $21,750.26 for a total cost of $239,252.89 over three years
Recommended Action
1. Authorize the City Manager to execute a services agreement with Azteca Systems, LLC., for Cityworks, Cupertino’s Asset Management System subscription service, for $217,502.63, plus a contingency of $21,750.26 for a total cost of $239,252.89 over three years.
2. Find under Municipal Code section 3.22.060(B). that the formal competitive bidding procedures are impractical for procurement.
Reasons for Recommendation
Cityworks Asset Management Systems is a scalable GIS‐Centric asset management platform Public Works utilizes throughout the entire asset management workflow: from data collection and work management – work order, service requests, inspections, preventative maintenance, inventory management, labor, and material management to regulatory reporting, analytics, and strategic planning. Cityworks, a Trimble company, is the leading GIS‐centric solution for public asset management, fully leveraging the power of Esri® ArcGIS® to help communities work smarter and better serve their residents.
Cupertino initially procured the Cityworks application in 2009 from Azteca Systems, LLC, and proceeded to implement each Operations asset group from a paper management system to a digital GIS‐Centric Management System.
Over the past 13 years Cupertino has invested considerable staff resources and time in implementing each asset group of Cupertino’s Public Works Operations Division as well as optimizing workflows and GIS data structure to fully capture all aspects of asset management both in the office and in the field. Moving from a 340
CC 03-07-2023
340 of 773
reactive paper‐based system to a proactive, dynamic GIS‐Centric digital management system allows for analysis and strategic planning. In 2017 the city implemented Cupertino’s 311 system CitySourced and integrated it with Cityworks. This allowed our operations staff to manage their entire work process through Cityworks and streamlined the process of a resident submitting a request to our staff receiving and responding to that request. A citizen submits a request to repair a pothole. That request goes directly to the Cityworks inbox of the staff member that manages potholes. Public Works create a related work order to complete the work and close out the service request all within Cityworks.
In 2018 the city integrated its fuel management system, Fuel Master, with Cityworks. This allows us the trigger preventative maintenance work orders on a vehicle over a set number of miles or hours since the last service. Effectively ensuring vehicles are brought in for regular service. In 2020 Cupertino integrated its Telematics system, GeoTab, to create work orders in Cityworks when there is an engine or battery diagnostic fault triggered. Analytics are critically important in an asset management system. Cupertino has spent extensive staff hours working with Supervisors and Management to develop numerous dashboards and reports staff rely on for strategic & tactical planning, reporting, performance measures, and budget analysis.
Today, Cupertino’s Implementation of Cityworks is an award‐winning model for government agencies, specifically in the areas of deployment, configuration, and interface development. As a testament to our success, Cupertino is called upon yearly to conduct numerous Cityworks demos and presentations to assist other local governments in their day‐to‐day use of this software application.
Due to the long‐term success and value of Cityworks, the staff’s knowledge of competing asset management solutions, and the significant resources that have been expended integrating Cityworks with other applications, Innovation & Technology highly recommends continuing with the Cityworks application and foregoing searching for a different application. To replace the existing Cityworks applications with either in‐house developed solutions or other vendor‐competing products would greatly increase the cost due to additional implementation, training, and integration fees.
The last three‐year contract with Azteca ended in 2018. Due to the explosive growth in use since that time, the City has renewed one‐year terms with Cityworks after 2018. With a site license in place and all asset groups utilizing Cityworks, there is enough certainty to negotiate pricing for a three‐year contract.
341
CC 03-07-2023
341 of 773
Staff recommends that Council approve the execution of a three‐year contract with Azteca to provide for efficient, uninterrupted operations for Cupertino’s Public Works operation. Due to the advantages of continued use of the Cityworks application, staff recommends that Council make the findings required under Municipal Code section 3.22.060(B) and approve the waiver of competitive bidding procedures under Chapter 3.22.1
Sustainability Impact
Cityworks software has reduced the volume of paper used for work management, conserving natural resources, and reducing greenhouse gases generated during the production and disposal of paper. When possible, staff leverages the improved software to assign and respond to work requests. Implementation of paperless office strategies like this one is prioritized in Cupertino’s Climate Action Plan (M‐ SW‐1).
Fiscal Impact
The cost of Cityworks standard enterprise license for the next three years is $217,502.63. The table below outlines the Cityworks license cost.
Year Price Services Provided
FY22-23 $71,070.00 Standard Cityworks Enterprise License FY23-24 $72,491.40 Standard Cityworks Enterprise License FY24-25 $73,941.23 Standard Cityworks Enterprise License City staff recommends adding a 10% contingency to cover additional user licensing and services bringing the total Council request to $239,252.89 over three years.
California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Teri Gerhardt, GIS Manager
Reviewed by: Bill Mitchell, Chief Technology Officer
Approved for Submission by: Pamela Wu, City Manager
1 Municipal Code section 3.22.060(B) authorizes the waiver of competitive bidding procedures if “pursuant to a written recommendation of the City Manager, the City Council finds that the use of the formal competitive bidding procedure is not practical due to limitations on source of supply, necessary restrictions in specifications, necessary standardization, quality considerations, or if other valid reasons for waiving the formal competitive bidding process procedures appear.”
342
CC 03-07-2023
342 of 773
Attachments:
A – Cityworks 2022 Order Form and Terms and Conditions
B – Sole Source Letter
C – Insurance Requirements
D ‐ Proof of Insurance
343
CC 03-07-2023
343 of 773
ORDER FORM
Order Date: Date of the last signature below
Trimble Entity Name
(“Trimble”) and Address:
Azteca Systems, LLC, a Trimble company
11075 South State, Suite 24, Sandy, Utah 84070
Customer Entity Name
(“Customer”) and Address:
Cupertino, California
10300 Torre Avenue
Cupertino, CA 95014
Billing Contact Name and EMail Address: Teri Gerhardt
408-777-3311
[email protected]
Initial Term: 12/31/2022 - 12/30/2023
Miscellaneous: * Purchase orders issued by Customer are issued for administrative purposes only; terms and conditions contained in any such purchase order shall be null and void.
Licensed Software:
Description Number of
Authorized Users
Annual Term Total
Server AMS Standard Cityworks Enterprise License
Agreement (ELA), Includes Unlimited Quantities of
the Identified Products:
Office
Respond
Mobile Native Apps (for iOS/Android)
--Includes the following Add-ons:
Storeroom
Equipment Checkout
Contracts
Cityworks for Excel
Cityworks Analytics for AMS
eURL (Enterprise URL)
Workload
Web Hooks
Citizen Engagement API
Metrics API
Use of Cityworks AMS Application Programming
Interfaces (APIs) with commercially available
Cityworks-centric applications that are licensed and
maintained by authorized Cityworks partners
N/A 12/31/2022 - 12/30/2023 $71,070.00
12/31/2023 - 12/30/2024 $72,491.40
12/31/2024 - 12/30/2025 $73,941.23
*All Licensed Software is for the indicated term and not perpetual. Annual fee herein is based on 50,001 - 100,000 population range.
344
CC 03-07-2023
344 of 773
Addendums:
1. Terms of Service
2. Supplemental Product Terms
3. Support
TERMS AND CONDITIONS
1. Terms and Conditions. All offerings are made available by Trimble subject to the terms and conditions set forth in this Order and the above referenced Addendums.
2. Annual Renewals; Additional Software Products and Licenses. This Agreement may be renewed annually by payment of the then current maintenance fees for the next annual maintenance period or receipt of Purchase Order from Licensee in response to an official Cityworks quote. Additional Software Products & Licenses may be added to this Agreement with either an acknowledgement of an official Cityworks quote signed by Licensee and additional fees, if necessary or applicable being paid, or receipt of Purchase Order from Licensee in response to an official Cityworks quote and additional fees, if applicable, being paid.
3. Payment Terms. All fees are due net 30 from the date of the Trimble invoice. Trimble will invoice upon execution of this Order and each renewal hereof.
4. Annual Price Increase. At each renewal occurring after 12/31/2024, Trimble has a right to increase the annual fees by the greater of (a) CPI plus two percent (2%) or (b) five percent (5%). "CPI" shall mean for all Urban Consumers, the U.S. City Average, for all items, 1982-84=100 (the “CPI-U”), as published by the Bureau of Labor Statistics, U.S. Department of Labor, and shall be for the prior twelve months as of the date the calculation is made. Trimble will use commercially reasonable efforts to notify Customer of the new pricing no later than sixty (60) days prior to the expiration of the prior term.
5. Electronic Invoices. Customer hereby consents to the receipt of invoices electronically at the indicated e-mail address(es) and accepts such invoices as if received by mail. Customer's e-mail address may be changed by written notice given by Customer to Trimble at: [email protected]. Customer is responsible for maintaining a current e-mail address and shall under no circumstances be excused from payment of applicable charges by its failure to access its designated e-mail address.
6. Due Authority. By signing below, the signatory represents that he/she (i) is an authorized representative of Customer and (ii) has the authority to legally and functionally commit the Customer. [Signature Page to Follow]
345
CC 03-07-2023
345 of 773
ACCEPTANCE
Accepted and agreed:
CUSTOMER:
Signature:
Print Name:
Title:
Date:
TRIMBLE:
Signature:
Print Name: George Mastakas
Title: Vice President
Date:
2/8/2023
346
CC 03-07-2023
346 of 773
Addendum #1
Terms of Service
v5.1 (O&PS)
These Terms of Service (this “Agreement”) are entered into by and between (a) the “Trimble” entity identified on an Order or SOW and (b) the “Customer” entity identified on an Order or SOW (“Customer” or “you”). Certain capitalized terms are defined in Exhibit B and others are defined contextually in this Agreement.
The Order may also be subject to supplemental product terms and conditions referenced in the applicable Order (“Supplemental Product Terms”). This Agreement consists of the terms and conditions set forth below and any applicable Supplemental Product Terms, Support Terms, Order, and SOW. Any conflict or inconsistency will be resolved in the following order of precedence: (1) the Order, (2) the Supplemental Product Terms, (3) the body of this Agreement, (4) the Support Terms, and (5) the SOW.
The “Effective Date” of this Agreement means the effective date stated on the Order, or if there is no Order, then the date that the Products are first made available to Customer. This Agreement will govern Customer’s initial purchase(s) as well as any renewals thereof (unless different terms are specified upon renewal).
If you are accessing or using Products on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company. All references to “you” reference your company. BY SIGNING AN ORDER OR SOW OR INSTALLING,
ACCESSING, OR USING ANY PRODUCTS THAT ARE SUBJECT TO THIS AGREEMENT, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Products.
1.1 Product Types. The following provisions apply to the applicable Product type, as set forth in the Order. (a) Software-as-a-Service. For Products that are deployed as Software-as-a-Service, as set forth in the Order, subject to the terms of this Agreement, Customer may access and use the Products during the Term only for its internal business purposes in accordance with the Documentation, Usage Limitations, any applicable Supplemental Product Terms, and this Agreement. (b) Licensed Software. For Products that are Licensed Software for deployment on premises or on a device, as set forth in the Order, subject to the terms of this Agreement, Trimble hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license, during the Term, to install, copy, and use the Licensed Software on systems or devices under Customer’s control only for its internal business purposes in accordance with the Documentation, Usage Limitations, any applicable Supplemental Product Terms, and this Agreement. Licensed Software is licensed, not sold.
(c) Hosting Services. For Products that are Licensed Software, but are deployed through hosting services delivered by Trimble, as set forth in the Order, the Products are subject to the terms and conditions applicable to Licensed Software.
1.2 Authorized Users and Administrators.
(a) Only Authorized Users may access or use the Products. User IDs are granted to individual, named persons, and each Authorized User will keep login credentials confidential and not share them with anyone else. Customer is responsible for its Authorized Users’ compliance with this Agreement and actions taken through their accounts. In the event an Authorized User is no longer authorized to use a Product on Customer’s behalf, Customer will promptly de-activate such Authorized User’s access. Only if expressly permitted under the applicable Order or Supplemental Product Terms, Customer may transfer Authorized User status from one individual to another at any time, provided that use of the Products by its Authorized Users in the aggregate remains within any applicable Usage Limitations. Customer will promptly notify Trimble if it becomes aware that any of its Authorized User login credentials have been compromised.
(b) If a Product permits administrator access, as described in the Documentation, Customer may designate one or more Authorized Users to be administrators (each an “Administrator”) with control over Customer’s account, including management of Authorized Users and Customer Data, as described in the Documentation. Customer is fully responsible for its choice of Administrators and any actions they take with respect to the Products. Trimble’s responsibilities do not extend to the internal management or administration of the Products for Customer.
1.3 API Access and Customer Applications.
(a) API. Products may include one or more application program interfaces (“API(s)”) that allow Customer to develop applications, code, or services that communicate with the Products (collectively, “Customer Applications”). Such APIs, if any, may be available upon request. Customer may use an API only if such use is authorized in the Documentation or otherwise in writing by Trimble. Use of APIs
347
CC 03-07-2023
347 of 773
may be subject to additional terms and conditions. Trimble may modify APIs from time to time, and Trimble is not responsible for the compatibility of any such modifications with Customer Applications. (b) Use of Customer Applications. If use of an API is authorized, subject to the terms of this Agreement and in compliance with the applicable Documentation, Customer may develop Customer Applications for use solely by Customer’s Authorized Users. Customer will not develop Customer Applications for the benefit of, or distribute Customer Applications to, any third party. Customer assumes all risk and liability regarding the development or use of any Customer Applications. Other customers or Trimble itself may independently develop applications similar to Customer Applications.
1.4. Restrictions. Customer will not (and will not permit, encourage, or assist anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Products to a third party; (b) use the Products on behalf of, or to provide any product or service to, third parties; (c) use the Products to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to any element of the Products, except to the extent expressly permitted by Law (and then only after providing prior written notice to Trimble); (e) modify or create derivative works of the Products or copy any element of the Products (other than in connection with making copies of Licensed Software authorized under this Agreement); (f) remove or obscure any proprietary notices in the Products; (g) publish benchmarks or performance information about the Products, except to the extent expressly permitted by Law; (h) interfere with the Products’ operation or its use by others, circumvent its access restrictions or, without the prior written permission of Trimble, conduct any security or vulnerability test of the Products; (i) transmit any viruses or other harmful materials to the Products; (j) submit to the Products any information that is inappropriate, defamatory, obscene, salacious, or unlawful, or use the Products to defame, harass, stalk, threaten, or otherwise violate the rights of others; (k) use the Products to advertise, offer to sell or buy goods, or otherwise for business promotional purposes; or (l) for Licensed Software, unless expressly permitted in the Order, Supplemental Product Terms, or the Documentation, use or host any Licensed Software in a virtual server environment.
1.5 Trials and Betas. If Customer receives access to the Products or any features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation to determine whether to purchase a license or subscription to the Product during the period designated by Trimble (or if not designated, 30 days). If Customer purchases a license or subscription to the Products, this Agreement will apply to Customer’s use unless otherwise specified in the applicable Order. Trials and Betas are optional and Trimble may cease offering Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Trimble may never release, and their features and performance information are Trimble’s Confidential Information. If the Products include a mechanism that limits access to Trials and Betas, Customer will not attempt to circumvent any such mechanism or restriction. Notwithstanding anything else in this Agreement: (a) Trimble has no obligation to retain Customer Data used with Trials and Betas; (b) Trimble provides the Trial and Betas “AS-IS” with no warranty, indemnity, service levels, or support; and (c) Trimble’s liability for Trials and Betas will not exceed US$50.
1.6 Educational Versions. Notwithstanding the foregoing, for any version of the Products designated as “educational,” or a similar term, Customer may use the Products solely for educational purposes (i.e., by an instructor or a student at an educational institution and while engaged in educational work). Such educational versions may not be used (a) by any other person; (b) by any educational institution for any non-educational purposes; or (c) for any for-profit purpose, including professional work or training offered for a fee, or by commercial entities.
1.7 Internet Connection. Products may require an active Internet connection or other means of electronic communications to operate, which are not the responsibility of Trimble.
1.8 Delivery and Deployment. Products, Documentation, and License Keys, if any, will be delivered by electronic means unless otherwise specified on the applicable Order. Delivery is deemed to occur on the date on which a Product and License Key, if any, are first made available to Customer. Products may gather and transmit to Trimble license compliance and activation data. Customer will not disable, modify, or interfere with the operation of any such functionality of the Products. Trimble may use the foregoing information to validate the authenticity of Customer’s license to the Products, to register Customer’s Products, for license metering, and to protect Trimble against unlicensed or illegal use of the Products.
2. Data Rights.
2.1 Data Usage and Ownership.
(a) Customer hereby grants to Trimble and its Affiliates the non-exclusive, worldwide, irrevocable, royalty-free right: (i) to use Customer Data during the Term to provide the Products, Support, and Professional Services to Customer; (ii) to use and disclose Customer Data as otherwise permitted pursuant to this Agreement or any written consent or instructions of Customer; and, (iii) on a perpetual basis: (A) to create, use, and disclose Anonymized Data for any purpose and (B) subject to Trimble’s confidentiality obligations in Section 13 (Confidentiality) and all applicable Data Protection Legislation, to use Customer Data to develop, maintain, and improve the Products and any other products, software, and services of Trimble or its Affiliates.
348
CC 03-07-2023
348 of 773
(b) Except for Trimble’s use rights set forth in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data. Trimble owns all right, title, and interest in Anonymized Data (including, without limitation, any and all intellectual property rights).
(c) Customer will not have access to Customer Data after termination or expiration of the Term, unless otherwise indicated in the Documentation, Order, Supplemental Product Terms, or the parties agree otherwise in writing. (d) In the event of any conflict between the terms of Section 13 (Confidentiality) and this Section 2.1 (Data Usage and Ownership), the terms of this Section 2.1 (Data Usage and Ownership) will control.
2.2 Personal Information and Data Protection.
(a) All applicable laws, rules, and regulations relating to privacy and data protection, including GDPR and CCPA (as defined below), are referred to as “Data Protection Legislation.” “Personal Information” is defined as in the applicable Data Protection Legislation, or if no definition is provided, any personally identifiable information which is either (i) provided by Customer or on its behalf as required for and in connection with the normal use and operation of Products or (ii) automatically collected through the Products on Customer’s behalf. “Applicable,” in this context, means the Data Protection Legislation applicable to Customer at Customer’s principal place of business or to Trimble at Trimble’s principal place of business, and such laws that Customer notifies Trimble in writing of that apply to the parties.
(b) Each party will comply with all applicable requirements of the Data Protection Legislation that applies to it. This Section 2.2(b) is in addition to, and does not relieve, remove, or replace, a party's obligations or rights under the applicable Data Protection Legislation. (c) Without prejudice to the generality of Section 2.2(b), Customer will ensure that it has all necessary and appropriate consents and notices in place (i) to enable lawful transfer of the Personal Information to Trimble for the duration and purposes of the Agreement and (ii) to enable Trimble to lawfully use, process, and transfer the Personal Information in accordance with this Agreement, including on the Customer's behalf.
(d) The parties acknowledge that: (i) if Trimble processes any Personal Information hereunder, it is on the Customer's behalf when performing its obligations under this Agreement and (ii) the Personal Information may be transferred, stored, and/or accessed from outside of the country where the Customer’s principal place of business is located in order to provide the Products or to otherwise perform any of Trimble's other obligations under this Agreement. (e) If the processing of Personal Information by Trimble is subject to the General Data Protection Regulation ((EU) 2016/679) or the Data Protection Act 2018 of the United Kingdom (“GDPR”), then, at the request of Customer, the parties will execute an applicable data processing addendum.
(f) If the processing of Personal Information by Trimble is subject to the California Consumer Privacy Act of 2018 (Title 1.81.5, §1798.100 et. seq.) (“CCPA”), then the terms of this clause (f) apply, and capitalized terms shall have the meanings afforded to them under the CCPA unless otherwise stated. In connection with a Verifiable Consumer Request by a Consumer pursuant to an exercise of rights under CCPA related to Personal Information, (i) Trimble is Customer’s Service Provider; (ii) Customer (and not Trimble) will respond to such request; and (iii) if necessary, in connection with such request, Customer will utilize the tools and information provided or made generally available by Trimble, such as Trimble’s online portals or APIs and Documentation regarding Trimble’s products, software, and services. To the extent such tools do not enable Customer to respond to a Verifiable Consumer Request, upon Customer’s request, Trimble will provide reasonable assistance with respect to Personal information in Trimble’s systems that is required for Customer’s response to such request. Trimble will not retain, use, or disclose Personal Information for any purpose other than as expressly permitted under this Agreement or as otherwise permitted under CCPA. A Verifiable Consumer Request to delete Personal Information will not require Trimble to delete Personal Information required to provide Customer with the Products (as defined in this Agreement), which includes any of Trimble’s Service Provider(s) acting on Trimble’s behalf to provide the Products (as defined in this Agreement); provided, however, that such service provider(s) do not have a separate right to Sell or otherwise use Customer’s Personal Information other than as required for Trimble’s Business Purposes.
3. Customer Obligations.
3.1 Compliance with Laws. Customer is responsible for complying with all Laws in its use of the Products and any results derived from the Products.
3.2 No High Risk Activities. Customer will not use the Products for High Risk Activities. Customer acknowledges that the Products are not intended to meet any legal obligations for High Risk Activities.
3.3 No Prohibited Data. Customer will not use the Products with Prohibited Data. Customer acknowledges that the Products are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Trimble is not a Business Associate as defined under HIPAA.
349
CC 03-07-2023
349 of 773
3.4 Customer Data. Customer is responsible for its Customer Data, including its content, accuracy, and compliance with Laws.
Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use its Customer Data with the Products and grant Trimble the rights in Section 2.1 (Data Use and Ownership), all without violating or infringing Laws, third-party rights (including intellectual property, publicity, or privacy rights), or any terms or privacy policies that apply to its Customer Data.
4. Suspension of Access to Products. Trimble may suspend Customer’s access to the Products, Support, and/or Professional Services, without liability, and in whole or in part, if (a) Customer breaches Section 1.4 (Restrictions) or Section 3 (Customer Obligations); (b) Customer’s account is 10 days or more overdue; or (c) Customer’s actions risk harm to other customers or the security, availability, or integrity of the Products. Where practicable, Trimble will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Trimble will promptly restore Customer’s access to the Products in accordance with this Agreement.
5. Certain Product Features. The following provisions apply to the extent applicable to the Products.
5.1 Devices. The Products may be compatible with or require use of a device (“Device”). Compatible Devices are specified in the applicable Documentation. Trimble makes no warranties regarding the operation of any Device or continued compatibility of a Product with any such Device. Customer is solely responsible for the configuration and operation of the Device. The results obtained through a Product may be affected by, and Trimble will have no liability for, the compatibility, placement, configuration, or operation of the Device, weather or other environmental conditions, color or composition of materials being scanned, or other factors outside of Trimble’s control.
5.2 Use with Other Trimble Products. The Products may allow Customer to connect with other products or services made available by Trimble. Use of such other products or services that are not part of the Products may require payment of a separate fee and are governed by those products or services’ respective terms of service, end user license agreement, or other agreement, and not by this Agreement.
5.3 Scripts. The Products may allow Customer to input and/or develop custom scripts, macros, and commands (collectively, “Scripts”) that control the operation of the Products. Scripts may be available for download or purchase from Trimble or third parties, or created by Customer. Unless otherwise specified by Trimble in writing, Scripts are not part of the Product. Customer’s development and use of any Scripts are solely at its own risk. To the extent any Scripts are provided by a third party, such Scripts will be deemed to be ThirdParty Materials, and may be subject to Third-Party Terms.
5.4 Third-Party Materials. The Products may provide Customer with access to Third-Party Materials. Third-Party Materials are not part of the Products. To the extent specified by Trimble (including in any Supplemental Product Terms or Documentation), use of the ThirdParty Materials may be subject to additional terms or restrictions (“Third-Party Terms”). Customer is solely responsible for its compliance with any Third-Party Terms, and failure to comply with such terms may result in termination of Customer’s right to access any features of the Products that utilize such Third-Party Materials. If no Third-Party Terms are specified, Customer may use ThirdParty Materials solely in support of Customer’s authorized use of the Products in accordance with this Agreement.
5.5 Open Source. The Products may incorporate third-party open source software (“Open Source”), as listed in the Documentation or Supplemental Product Terms, or otherwise made available by Trimble. To the extent the terms of the Open Source license prohibit the terms of this Agreement from applying to the Open Source, the terms of the Open Source license will apply to the Open Source on a stand-alone basis instead of this Agreement.
5.6 Content Subscriptions. This Section applies if the Product makes available Third-Party Materials as a data or content subscription (“Subscription Content”). If Customer has a separate agreement with Trimble or the applicable third party in place regarding the use of Subscription Content (“Subscription Content Agreement”), then such Subscription Content Agreement governs the use of Subscription Content accessed through the Product, but not the use of the Product itself, which will be governed by this Agreement.
If no Subscription Content Agreement is in place, then, unless otherwise authorized by Trimble in writing, such Subscription Content may only be used solely for Customer’s internal purposes during the applicable Term and only when accessed pursuant to a manual end user request. Customer will not: (i) access, extract, or download any Subscription Content, or portions thereof, in batch or mass by any means; (ii) sell, offer to sell, rent, sublicense, or transfer any copies of the Subscription Content, or portions thereof, to a third party or allow a third party to use the Subscription Content; (iii) use the Subscription Content to develop services or products for sale or include any portion of the Subscription Content in any product or service; (iv) use any portion of the Subscription Content to create a competitive service, product, or technology; (v) recreate the Subscription Content or create otherwise a separate database or other repository of Subscription Content; (vi) use Subscription Content to train, augment, or correct another database or information repository; or (vii) make any portion of the Subscription Content available to the public in any manner. Upon notice from Trimble and/or any termination or expiration of the Term, Customer will immediately cease using and delete/destroy all electronic and physical copies of Subscription Content.
350
CC 03-07-2023
350 of 773
5.7 Third-Party Platforms.
(a) Customer may choose to use a Product with Third-Party Platforms. Third-Party Platforms are not part of the Product. Subject to payment of additional fees, Trimble may host Trimble-approved Third-Party Platforms or integrations to Third-Party Platforms for use in connection with the Products.
(b) Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement, and may enable data exchange between the Products and Third-Party Platform. Trimble does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability, or how the Third-Party Platforms or their providers use Customer Data. If Customer enables a Third-Party Platform with a Product, Trimble may access and exchange Customer Data with the Third-Party Platform on Customer’s behalf. (c) Customer represents and warrants that it shall, and shall require any provider of a Third-Party Platform to: (i) establish and maintain industry standard technical, organizational, physical, and administrative safeguards designed to ensure the security and integrity of the Product and Trimble cloud environment and (ii) comply with the security controls, configuration requirements, and access limitations imposed by Trimble, as may be modified by Trimble from time to time. If Trimble hosts the Third-Party Platform or integration to the Third-Party Platform, Customer represents and warrants to Trimble that Customer has all rights necessary to grant Trimble the right to host the Third-Party Platforms on its behalf.
5.8 Third-Party Application Stores.
(a) Purchase from Application Store. If Customer obtains the Product through a third-party application store, marketplace, or other site or service (each, an “Application Store”), such Application Store is considered a reseller. All Fees are non-refundable once paid.
Customer’s download of the Product may be subject to other terms as specified by the operator of the Application Store from which Customer downloaded the Product.
(b) Apple-Specific Terms. If Customer downloaded the Product from Apple Inc.’s (“Apple’s”) Application Store, the following terms are part of this Agreement:
(i) This Agreement is between Customer and Trimble, and not with Apple. However, as required by Apple, Apple and its subsidiaries will be third-party beneficiaries of this Agreement and will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as a third-party beneficiary. (ii) To the maximum extent permitted by Law, Apple will have no warranty obligation with respect to the Product, and, as between Apple and Trimble, any other claims, losses, liabilities, damages, costs, or expenses attributable to a failure to conform to a warranty will be Trimble’s responsibility. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Product.
(iii) As between Trimble and Apple, Trimble is solely responsible for the Product and for addressing any claims Customer or any third parties have about the Product or Customer’s possession or use of the Product, including without limitation (A) product liability claims; (B) any claim that the Product fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation. In the event of any third-party claim that the Product or Customer’s possession or use of the Product infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement, or discharge of such claim.
6. Support and Professional Services.
6.1 Support. During the Term, Trimble will provide support and/or maintenance for the Products (“Support” or “Software Assurance”) in accordance with the service level commitments specified on the applicable Order or the Supplemental Product Terms, if any (“Support Terms”).
6.2 Professional Services. Trimble will provide Professional Services related to the Products as specified on the Order or a statement of work or work order (“SOW”) signed or accepted by Customer. Professional Services are subject to the terms and conditions set forth in Exhibit C and the applicable Order or SOW.
7. Term and Termination.
7.1 Initial Term. If Customer purchases a subscription to a Product or a license to Licensed Software for a limited period of time, the duration of the initial term of the Order and this Agreement is set forth in the Order (“Initial Term”). Upon the expiration of the Initial Term, the Order and this Agreement shall automatically renew in accordance with Section 7.2 (Renewal Term(s)), unless otherwise set forth in the Supplemental Product Terms or the Order. The Initial Term and any renewal period are collectively referred to as “Term.”
351
CC 03-07-2023
351 of 773
7.2 Renewal Term(s). Unless otherwise set forth in the Order, if Customer purchases a termed license or subscription to a Product or Support, upon the expiration of the Initial Term or any renewal Term, the Term shall automatically renew for subsequent term(s) equal in duration to the then-current term, until either party provides written notice to the other party of its intent not to renew at least 30 days before the expiration of the then-current Term.
7.3 Termination. Either party may terminate this Agreement, an Order, or a SOW if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. Termination of the Agreement will terminate all Orders and any SOWs, unless otherwise stated in the termination notice. Termination of an Order or SOW will not, by itself, terminate this Agreement.
7.4 Effect of Termination. Upon expiration or termination of this Agreement or an Order, Customer’s right to use the Products (including its license to any Product) will cease and Customer will immediately cease any and all use of and access to the Products and will delete (or, upon request, return) all copies of any Product. At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Data, which is addressed in Section 2.1 (Date Usage and Ownership)). Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
7.5 Survival. These Sections survive expiration or termination of this Agreement: 1.4 (Restrictions), 2.1 (Data Usage and Ownership), 3 (Customer Obligations), 7.4 (Effect of Termination), 7.5 (Survival), 8 (Financial Terms), 9.3 (Disclaimers), 10 (Ownership), 11 (Limitations of Liability), 12 (Indemnification), 13 (Confidentiality), 15 (General Terms), and Exhibit B. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
8. Financial Terms.
8.1 Fees. Fees are as described in the Order or SOW (“Fees”). The payment terms for the first invoice for Products or Support will be set forth on the Order. Thereafter, the payment terms for Fees for Products and Support under that Order will be set forth in the invoice. Unless otherwise stated in a SOW or set forth in an invoice, Fees for Professional Services under an SOW are due upon receipt.
Trimble may, without limiting Trimble’s other rights and remedies, accelerate Customer’s unpaid Fees under any Order for any breach of Customer’s payment obligations under any Order so that all such obligations become immediately due and payable, including Fees for all unbilled future Fees under any Order.
8.2 Increases. Unless otherwise set forth in the Order, (a) all recurring Fees will be fixed for a period of 12 months from the Effective Date, and (b) thereafter, Trimble may increase recurring Fees once every 12 months during the Term.
8.3 Late Fees. Any amount due under this Agreement that remains unpaid after its due date will bear interest at the lower of 1.5% per month or the maximum rate permitted by Law, calculated from the date such amount was due until the date that payment is received. Customer will pay all costs and expenses of collection (including attorneys’ fees) incurred by Trimble collecting any amounts past due under this Agreement. Subject to any mandatory Laws to the contrary, all Fees and expenses are non-refundable.
8.4 Taxes. Customer will pay any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its Orders or SOWs, whether domestic or foreign (“Taxes”), other than Trimble’s income tax. Fees and expenses are exclusive of Taxes. Customer will pay any foreign exchange transaction fees and any foreign exchange profits or losses incurred on such transactions.
9. Warranties and Disclaimers.
9.1 Limited Warranty. Unless otherwise specified in the Supplemental Product Terms, and subject to any mandatory Laws to the contrary, Trimble warrants to Customer that during the Warranty Period the Products will perform materially as described in the Documentation. The “Warranty Period” is (i) 90 days from the Effective Date for Licensed Software deployed on premises or on a device pursuant to Section 1.1(b) and (ii) for the duration of the Term for any (1) Software-as-a-Service made available pursuant to Section 1.1(a) or (2) Licensed Software deployed through hosting services provided by Trimble pursuant to Section 1.1(c).
9.2 Warranty Remedy. If Trimble breaches Section 9.1 (Limited Warranty) during the Warranty Period, Customer may make a reasonably detailed warranty claim within 30 days of discovering the issue. Trimble will correct such breach by issuing corrected instructions, a restriction, or a bypass, or by replacing the Product. Subject to any mandatory Laws to the contrary, these procedures are Customer’s exclusive remedy and Trimble’s entire liability for breach of the warranty in Section 9.1 (Limited Warranty). This warranty does not apply to (a) issues caused by misuse or unauthorized modifications; (b) unsupported versions of Licensed Software; (c) issues in or caused by Third-Party Platforms or other third-party systems; or (d) Trials and Betas or other evaluation use.
352
CC 03-07-2023
352 of 773
9.3 Disclaimers.
(a) General. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 (LIMITED WARRANTY) OR IN ANY SUPPLEMENTAL PRODUCT TERMS, PRODUCTS, SUPPORT, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. TRIMBLE AND ITS SUPPLIERS MAKE NO (AND HEREBY
DISCLAIM ALL) OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING ITS EXPRESS OBLIGATIONS IN SECTION 6 (SUPPORT AND PROFESSIONAL SERVICES), TRIMBLE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR
ERROR-FREE, THAT TRIMBLE WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA OR OTHER DATA WITHOUT LOSS. TRIMBLE IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE TRIMBLE’S CONTROL. TRIMBLE WILL NOT BE LIABLE IN ANY MANNER FOR THE OUTPUT OBTAINED THROUGH USE OF THE PRODUCTS OR CUSTOMER’S RELIANCE ON SUCH OUTPUT. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF CUSTOMER’S USE OF THE PRODUCTS. THIS
RESPONSIBILITY INCLUDES THE DETERMINATION OF APPROPRIATE USES FOR THE PRODUCTS AND THE SELECTION OF THE PRODUCTS AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. ANY FORMS, POLICIES, OR OTHER MATERIALS PROVIDED BY
TRIMBLE THROUGH THE PRODUCTS OR DOCUMENTATION ARE NOT INTENDED AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE OR LEGAL OPINION. CUSTOMER SHOULD CONSULT ITS OWN LEGAL COUNSEL REGARDING THE USE OF ANY SUCH MATERIALS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE PRODUCTS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. (b) Customer Applications. Trimble hereby disclaims any warranty, support, or other obligations with respect to any Customer Applications.
(c) Scripts. Subject to mandatory Laws to the contrary, Scripts are provided “AS IS” and Trimble hereby disclaims any warranty, support, or other obligations with respect to any Scripts, including, without limitation, any Scripts provided by Trimble. (d) Third-Party Materials and Third-Party Platforms. Third-Party Materials and Third-Party Platforms are provided “AS IS” and Customer assumes all risk and liability regarding any use of (or results obtained through) Third-Party Materials or Third-Party Platforms. Trimble and its suppliers make no warranty or guarantee regarding any Third-Party Materials or Third-Party Platforms, including regarding their accuracy or continued availability or compatibility. (e) High Risk Activities and Prohibited Data. Trimble and its suppliers specifically disclaim any responsibility for, and will not be liable in any manner arising from, any use of the Products in connection with High Risk Activities or with any Prohibited Data.
10. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Customer’s use rights in this Agreement, Trimble and its licensors retain all intellectual property and other rights in the Products, Documentation, other deliverables and related Trimble technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Trimble. If Customer provides Trimble with any suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to a Product (“Feedback”), Customer hereby grants to Trimble and its Affiliates a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and otherwise exploit the Feedback.
11. Limitations of Liability. TRIMBLE’S CUMULATIVE LIABILITY TO CUSTOMER FOR ALL CLAIMS IN ANY WAY ARISING OUT OF OR
RELATING TO THE ORDER, ANY SOW, THIS AGREEMENT, AND THE PRODUCTS OR SERVICES, REGARDLESS OF THE FORM OR THEORY
OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR
EQUITABLE THEORY), SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO TRIMBLE BY CUSTOMER FOR THE RELEVANT PRODUCT OR SERVICES IN THE PRIOR 12 MONTHS UNDER THIS AGREEMENT. IN NO EVENT WILL TRIMBLE OR ITS SUPPLIERS OR
THIRD-PARTY VENDORS HAVE ANY OBLIGATION OR LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE, OR AGGRAVATED DAMAGES, LOSS OF GOODWILL, LOSS OF DATA, OR ANTICIPATED PROFITS ARISING FROM OR RELATING TO THIS AGREEMENT, CUSTOMER’S USE OF OR THE PERFORMANCE OF THE PRODUCTS OR FROM THE SERVICES, OR FOR
ANY OTHER REASON, EVEN IF TRIMBLE OR ITS SUPPLIERS OR THIRD-PARTY VENDORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. CUSTOMER ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT TRIMBLE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. THE FOREGOING
LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
12. Indemnification. Customer will defend, indemnify, and hold harmless Trimble from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) any Customer Data, or (b) Customer’s breach or alleged breach of Section 3 (Customer Obligations), Section 5.4 (Third-Party Materials), or Section 5.7 (Third-Party Platforms) (each, a “Claim”). Trimble will give Customer prompt written notice of any Claim and
353
CC 03-07-2023
353 of 773
will cooperate in relation to the Claim at Customer’s expense. Customer will have the exclusive right to control and settle any Claim, except that Customer may not settle a Claim without Trimble’s prior written consent (not to be unreasonably withheld) if the settlement requires Trimble to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials). Trimble may participate in the defense of any Claim at its expense.
13. Confidentiality.
13.1 Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Trimble’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Products, Support, or Professional Services.
Customer’s Confidential Information includes Customer Data.
13.2 Obligations. As a receiving party, each party will use reasonable care to protect the disclosing party’s Confidential Information from being disclosed to third parties except as permitted in this Agreement, including, without limitation, in Section 2.1 (Data Usage and Ownership) and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, Affiliates, contractors, and other representatives having a legitimate need to know (including, for Trimble, the subcontractors referenced in Section 15.8 (Subcontractors), provided it remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section.
13.3 Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party’s Confidential Information.
13.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section.
13.5 Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data or Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and reasonably cooperates in any effort to obtain confidential treatment.
14. Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Law.
Trimble may include Customer and its trademarks in Trimble’s customer lists and promotional materials but will cease this use at Customer’s written request.
15. General Terms.
15.1 Assignment. Trimble may assign this Agreement upon notice to Customer. Customer may not assign or transfer this Agreement (by operation of law or otherwise) without the prior consent of Trimble. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
15.2 Non-Solicitation. During the Term of this Agreement, and for a period of one year following expiration or termination of this Agreement, Customer shall not on its own behalf or on behalf of any third party, solicit, hire, or cause to be hired as an employee or engage or caused to be engaged as an independent contractor any person who was an employee or independent contractor of Trimble, without the prior written consent of Trimble.
15.3 Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered mail (return receipt requested); or (c) one day after dispatch if by an internationally reputable commercial overnight delivery service. If to Trimble, notice must be provided to the address in Exhibit A, with a copy to Trimble Inc., Attn: General Counsel – Important Notice, 935 Stewart Drive, Sunnyvale, CA 94085, USA. If to Customer, Trimble may provide notice to the address Customer provided at registration or on the Order. Either party may update its address with notice to the other party. Trimble may also send general and operational notices to Customer by email or through the Products, including suspension, collection, and termination notices related to overdue Fees.
15.4 Entire Agreement. This Agreement (which includes the Order, any SOWs, any applicable Supplemental Product Terms, and any applicable Support Terms) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. The terms in any Customer purchase order, business form, or other similar documents will not
354
CC 03-07-2023
354 of 773
amend or modify this Agreement and are expressly rejected by Trimble; any of these Customer documents are for administrative purposes only and have no legal effect.
15.5 Amendments. Except as otherwise provided herein, any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Trimble. Documentation and Support Terms are not subject to this Section. Trimble may modify Documentation and Support Terms to reflect new features or changing practices, but the modifications will not materially decrease Trimble’s overall obligations during a Term.
15.6 Waivers and Severability. Waivers must be in writing signed by the waiving party’s authorized representative and cannot be implied from conduct. Each provision contained in this Agreement constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part thereof) is unenforceable under or prohibited by any present or future law or is held by a court of competent jurisdiction or arbitrator to be invalid, void, or unenforceable, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired.
15.7 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, pandemics, or natural disaster.
15.8 Subcontractors. Trimble may use subcontractors and permit them to exercise Trimble’s rights in connection with this Agreement, including for hosting purposes. Trimble remains responsible for compliance of any such subcontractors with this Agreement and for its overall performance under this Agreement.
15.9 Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
15.10 Export Restrictions. Customer acknowledges that the Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer will not, and will not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or reexport is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, Laws of any United States, or foreign agency or authority. Customer warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. Customer will defend, indemnify, and hold Trimble harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this Section. Customer’s obligations under this Section will survive the termination of this Agreement for any reason whatsoever.
15.11 Anti-Corruption. Each party shall, and shall require that its officers, employees, and agents, (a) comply with all applicable anticorruption and anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act of 1997 and the U.K. Bribery Act 2010, each as amended and including any rules or regulations thereunder; (b) not directly or indirectly offer, promise, or give any person working for or engaged by the other party a financial or other advantage to induce that person to perform improperly a relevant function or activity or reward that person for improper performance of a relevant function or activity; and (c) not directly or indirectly request, agree to receive, or accept any financial or other advantage as an inducement or reward for improper performance of a relevant function or activity in connection with this Agreement.
15.12 Government End-Users. Elements of the Products are commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
15.13 No Third-Party Beneficiaries. This Agreement does not confer any rights or remedies upon any third party except to the extent expressly set forth in this Agreement.
15.14 Governing Law, and Venue. The Agreement is governed exclusively by, and construed and enforced exclusively in accordance with, the laws of the applicable jurisdiction set forth in Exhibit A under “Governing Law” for the applicable Trimble entity without
355
CC 03-07-2023
355 of 773
regard to or application of its conflicts of laws provisions and without regard to or application of the United Nations Convention on the International Sale of Goods. The parties agree that any legal proceeding arising out of or related to this Agreement will be subject to the sole and exclusive jurisdiction and venue set forth in Exhibit A under “Exclusive Venue/Jurisdiction,” to the exclusion of all others. Each party irrevocably consents and hereby submits to the personal jurisdiction thereof.
15.15 Jury Trial Waiver. If the Agreement is governed by U.S. law, this Section applies. EACH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT,
INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
356
CC 03-07-2023
356 of 773
EXHIBIT A
TRIMBLE NOTICE ADDRESS, GOVERNING LAW, AND VENUE/JURISDICTION Trimble Entity and
Notice Address* Governing Law Exclusive Venue/Jurisdiction Trimble Inc.
935 Stewart Drive,
Sunnyvale, CA 94085
United States
AgileAssets Inc.
3001 Bee Caves Rd #200,
Austin, TX 78746
Azteca Systems, LLC
11075 South State Street Suite 24
Sandy, UT 84070
e-Builder Inc.
13450 West Sunrise Blvd Suite 600,
Sunrise, FL
Delaware
State of Delaware and United States
federal courts located in Wilmington,
Delaware
Trimble Europe B.V.
Industrieweg 187a, 5683 CC, Best, The
Netherlands
The Netherlands Courts of Amsterdam
*See additional notice address for Trimble in Section 15.3 (Notices).
357
CC 03-07-2023
357 of 773
EXHIBIT B
DEFINITIONS
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of 50% or more of an entity’s voting equity securities or other equivalent voting interests, and “control” means the power to direct the management or affairs of an entity. “Anonymized Data” means any data collected in connection with the Products (including Customer Data) that has been aggregated and/or de-identified in such a manner that neither Customer nor any of its Authorized Users or any other individual can be identified from the data when it is shared outside of Trimble or its Affiliates. “Authorized User” or “User” means any type of user authorized by Customer to access and use the Products on Customer’s behalf, including any additional requirements as set forth in the Order or Supplemental Product Terms. “Concurrent User” means any type of User authorized by Customer to access and use the Products on Customer’s behalf simultaneously at a given point in time.
“Customer Data” means any information, documents, materials, or other data of any type that is input by or on behalf of Customer into the Products or that is created or generated by Customer through Customer’s use of the Products, including without limitation information or data that is submitted manually by Authorized Users or through a Third-Party Platform. “Customer Group” means, if applicable, Customer’s business units, Affiliates, or Joint Ventures listed in the Order that are permitted to authorize Users to use the Products on behalf of those business units, Affiliates, or Joint Ventures. “Deliverables” shall mean any Trimble deliverables as expressly set forth on a SOW. “Documentation” means Trimble’s then-current usage guidelines and standard technical documentation applicable to the Products. “High Risk Activities” mean any mission critical, hazardous, strict liability, or other activity(ies) where use or failure of the Products could lead to death, personal injury, or physical or environmental damage. Examples of High Risk Activities include, but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, autonomous vehicles, air traffic control, emergency services, or weaponry systems. High Risk Activities do not include utilization of Products for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or physical or environmental damage.
These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
“Joint Venture” means a business arrangement in which Customer and one or more other third parties agree to pool their resources to accomplish a Project or other commercial enterprise. “Law(s)” means all applicable local, state, federal, and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data. “License Keys” means electronic passwords or other enabling mechanisms provided for use with a Product. “Licensed Software” means the object code form of Trimble’s proprietary installed software product, as identified in the relevant Order. The Licensed Software includes the Documentation, and any maintenance releases of the same Licensed Software product provided by Trimble to Customer under this Agreement, and optional software component module(s) that provides specific features and functionality enhancements for the Licensed Software not available in the standard configuration of the Licensed Software.
Licensed Software does not include Third-Party Materials or Third-Party Platforms. “Named User” means any type of User designated by Customer by name or other identifier to access and use the Products on Customer’s behalf.
“Order” means (a) any ordering documents, proposals, quotations, sales agreement, or similar documents issued by Trimble or executed by Customer or (b) any Trimble-issued entitlement confirmation or online order acknowledgement. “Product(s)” means the applicable Licensed Software or Software-as-a-Service offerings listed on an Order, including any platforms, add-on, integrations, service, or products provided or sold by Trimble with any of the foregoing. “Professional Services” means any training, enablement, configuration, or other professional consulting services provided by Trimble related to the Products, as identified in the Order or SOW.
358
CC 03-07-2023
358 of 773
“Prohibited Data” means any (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (b) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS); or (c) information subject to regulation or protection under the Children’s Online Privacy Protection Act or Gramm-Leach Bliley Act. “Software-as-a-Service” means a Trimble proprietary cloud service, any Product available through a software-as-a-service, or other hosting services deployment model, as identified in the relevant Order and as modified from time to time. This includes Documentation, but does not include Third-Party Materials or Third-Party Platforms not provided by Trimble. “Third-Party Materials” means any third-party data, content, or proprietary software. “Third-Party Platform” means any platform, add-on, service, or product not provided by Trimble that Customer elects to integrate or enable for use with the Products, including any Trimble-approved Third-Party Platforms that Trimble may host on behalf of Customer. “Usage Limitations” means Customer’s authorized scope of use for the Products as specified in the applicable Order or Supplemental Product Terms, which may include any user, seat, copy, instance, data storage, CPU, computer, field of use, location, or other restrictions.
359
CC 03-07-2023
359 of 773
EXHIBIT C
PROFESSIONAL SERVICE TERMS
1. Statements of Work. If purchased by Customer, Trimble or its authorized service providers will use commercially reasonable efforts to provide Professional Services to Customer described in an Order or SOW by the delivery dates specified therein, if any, or on a mutually agreeable schedule. Any changes in scope must be made in writing and approved by authorized representatives of Customer and Trimble.
2. Customer Materials. Customer agrees to provide Trimble with reasonable access to Customer’s technical data, computer programs, files, documentation, and/or other materials (collectively, “Customer Materials”) and to Customer’s resources, personnel, equipment, and facilities to the extent necessary for the performance of Professional Services. Client will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence, or consistency of Customer Materials or its personnel. To the extent that Customer does not timely provide the foregoing access required for Trimble to perform the Professional Services, Trimble shall be excused from performance until such items or access are provided. Subject to the confidentiality provisions of this Agreement, Customer hereby grants Trimble a limited and revocable right to use the Customer Materials for the purpose of performing the Professional Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials.
3. Customer Premises. Customer shall provide Trimble with safe access to Customer’s premises as reasonably required for Trimble to perform the Professional Services, if onsite performance of Professional Services is needed and agreed to by Customer. Trimble personnel shall comply with the reasonable written rules and regulations of Customer related to use of its premises, provided that such written rules and regulations are provided to Trimble prior to commencement of the Professional Services.
4. Deliverables. Trimble hereby grants Customer worldwide, royalty-free, non-exclusive license to use the Deliverables for its internal business purposes in connection with the Products associated with such Deliverables and only for the period of time that Customer has a license or subscription to such Products. Unless expressly stated otherwise in the applicable SOW, Trimble owns and will retain ownership (including all intellectual property rights) in and to the Deliverables (excluding any Customer Materials) and any modifications, improvements, and derivative works thereof (including any such materials to the extent incorporating any Feedback).
If the parties have agreed that Trimble will assign ownership of Deliverables to Customer, the relevant SOW must set forth the terms and conditions regarding such assignment.
5. Services Warranty. Trimble will perform the Professional Services and deliver the Deliverables as scoped in an Order or SOW in a professional and workmanlike manner. If notified of a non-conformity within 10 days of delivery of the applicable Professional Services or Deliverables, and if Customer provides a sufficiently detailed justification to Trimble to allow Trimble to identify the non-confirming Professional Services or Deliverables, Trimble will, as its sole liability and obligation for failure to provide Professional Services or Deliverables meeting this warranty, re-perform the non-conforming Professional Services or re-deliver the non-conforming Deliverables at no additional cost to Customer.
6. Travel Expenses. Trimble will invoice Customer for reasonable out-of-pocket travel expenses incurred in connection with performing Professional Services. Expenses may include, but are not limited to, airfare and other transportation, lodging, and incidentals. Expenses may also include meals reimbursable per a flat per diem rate, available upon request. Expenses will be invoiced monthly as incurred at Trimble’s cost (except per diem), and may be invoiced separately from Fees. For Professional Services performed onsite at Customer’s premises, Trimble may invoice Customer for its consultants’ time spent traveling to and from Customer’s premises if set forth in the SOW.
360
CC 03-07-2023
360 of 773
Addendum #2
Supplemental Product Terms
1. Intellectual Property Indemnification.
(a) Indemnification by Trimble. Trimble shall defend Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of the Products in accordance with the terms of this Agreement, and pay any resulting settlement or final judgment. If Customer’s use of any of the Products are, or in Trimble’s opinion are likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Trimble may, in its sole discretion: (a) substitute for the Products substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Products; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fee paid by Customer as reduced to reflect a five year straight-line depreciation from the applicable purchase date. The foregoing indemnification obligation of Trimble will not apply: (1) if the Products are modified by any party other than Trimble; (2) if the Products are combined with other non-Trimble products, but solely to the extent that the alleged infringement is caused by such combination; (3) to any unauthorized use of the Products; (4) to any unsupported release of the Products; or (5) to any third-party code, content, and/or data contained in and/or delivered with the Products. (b) Indemnification Process. Trimble’s indemnification obligations are contingent upon receipt of: (i) prompt notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer.
(c) THIS ADDENDUM #2 OF THE SUPPLEMENTAL PRODUCT TERMS SETS FORTH TRIMBLE’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.
2. Roadmap Disclaimer. CUSTOMER AGREES THAT ITS PURCHASES ARE NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE
FUNCTIONALITY OR FEATURES, OR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY TRIMBLE REGARDING FUTURE FUNCTIONALITY OR FEATURES.
3. Public Entity. To the extent Customer is a public or governmental entity, then the following provisions apply to the extent applicable:
a. Tax Exemption. If Customer is a tax exempt entity and provides evidence of a tax-exempt certificate prior to executing this Agreement, then Section 8.4 (Taxes) of the Agreement shall be inapplicable. b. No Indemnification by Customer. Section 12 (Indemnification) of the Agreement and the second to last sentence of Section 15.10 (Export Restrictions) of the Agreement shall be inapplicable. c. Public Records Law. Customer’s confidentiality obligations in Section 13 (Confidentiality) of the Agreement may be subject to applicable public records law.
d. Limited Publicity. The second sentence of Section 14 (Publicity) of the Agreement shall be inapplicable. e. Termination for Convenience. Customer may terminate this Agreement for convenience on not less than sixty (60) days’ written notice to Trimble. If Customer terminates this Agreement under this paragraph, all fees properly due, but not paid, shall immediately become due and payable. All previously paid fees (both used and unused) for the current Term shall be non-refundable and forfeited. Furthermore, all earned, but unpaid, fees for Professional Services must be paid in full before the termination becomes effective. f. Non-Appropriation of Funds. The Customer’s funds for future and ongoing purchases are contingent on the availability of future appropriations of funds. If funds are not appropriated for any payments due under this Agreement, the Customer will promptly notify Trimble in writing and the applicable Order will terminate as of the date of the notice in accordance with paragraph (e) above and the Customer will have no further obligation to make any payments with respect to the affected Order, provided however that the Customer shall pay for any goods or services ordered prior to the date of the Customer's notice.
361
CC 03-07-2023
361 of 773
g. Piggyback. Trimble does business with many government entities whose applicable laws permit them to join an existing contract between another governmental agency and vendor to acquire goods and services thereunder. In such circumstances and if allowable by applicable law and contract, Customer expressly agrees to allow the other governmental agencies to acquire goods and services using this Agreement (“piggyback”), subject to applicable pricing of the Trimble offerings at the time of the piggyback purchase. h. Governing Law. Notwithstanding Section 15.14 (Governing Law, and Venue) of the Agreement, the Laws of the jurisdiction required by applicable law shall exclusively govern this Agreement.
4. Post-Termination. Upon expiration or termination of the Agreement, Customer will (i) stop accessing and using affected Product(s); (ii) clear any client-side data cache derived from use of the Product(s); and (iii) uninstall, remove, and destroy all copies of affected Product(s) in Licensee's possession or control, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to Trimble. Upon termination of the License and Maintenance Agreement, all Product licenses granted hereunder terminate as well. For 30 days from the expiration or termination of the Agreement, Trimble will make Customer Data available to Customer upon request for export or download for the applicable Product. Additional fees may apply.
5. Consultant or Contractor Access. Trimble grants Customer the right to permit Customer's Third-Party Consultants or Contractors to use the Products exclusively and solely for Customer's benefit. Customer must comply with terms and provisions of Exhibit D and provide an executed copy to Trimble. Customer shall be solely responsible for compliance by Third-Party Consultants and Contractors with this Agreement and shall ensure that the Third-Party Consultant or Contractor discontinues Product use upon completion of work for Customer. Access to or use of Products by Third-Party Consultants or Contractors not exclusively for Customer's benefit is prohibited.
362
CC 03-07-2023
362 of 773
EXHIBIT D
THIRD-PARTY CONSULTANT/CONTRACTOR ACKNOWLEDGMENT
If Customer engages any third party or contractor (Third Party) and desires to grant access to use the Products, the access may be granted subject to the following terms conditions and provisions:
1. Access and use of the Licensed Products by Third Party is solely for Customer’s benefit;
2. Third Party (or, if applicable, its employee) shall be considered the Authorized User, and all use shall be in accordance with the terms and conditions of the Trimble Agreement with Customer;
3. Before accessing the Products, Third Party agrees that (i) the Products shall be used solely in accordance with the terms of this Agreement, and (ii) Third Party shall be liable to Trimble for any breach by it of this Agreement;
4. Customer hereby agrees and acknowledges that Customer will be responsible for all use by Third Party with respect to the use of the Products;
5. Upon expiration or termination of this Agreement, the rights of usage of Third Party shall immediately terminated;
6. Use of the Products by Third Party will be governed by the terms of Customer’s Agreement with Trimble, and will require that Customer purchase the appropriate license or access for each user utilized by Third Party; and
7. Customer will ensure that Third-Party agrees to comply with and does comply with the terms of Customer’s Trimble Agreement on the same basis as the terms apply to Customer.
The rights granted under Third-Party Contractor Addendum, do not modify Customer’s Agreement with Trimble or increase the access or licenses granted under this Agreement. Third Party, by their signature below, acknowledges that it has a copy of Customer’s Agreement with Trimble and agrees to the terms herein. Customer shall provide a signed copy of this Agreement to Trimble at [email protected].
Third Party (Print):_________________________
By: ________________________________________
Third Party/Contractor Authorized Signature
Title: _____________________________
Date: ________________________
Third Party Information:
Customer: Cupertino, California
Address
City, State, Zip
Contact Name
Phone Number
Email
363
CC 03-07-2023
363 of 773
Addendum #3
Support
Version 1.0
1. Releases
1.1. General. “Release” means an update or upgrade to the Product made available to all customers using that Product that improves usability or adds functionality, cosmetic changes, or bug fixes. Trimble will use commercially reasonable efforts to provide prior notice to Customer through the Customer Portal, or other communication channels when Releases are made generally available to all customers, excluding any non-general Releases or unplanned Releases. Trimble will decide the contents and timing of all Releases in its sole discretion.
1.2. Software-as-a-Service and Hosted License Software. Trimble will update (i) Software-as-a-Service or (ii) Licensed Software hosted by Trimble in each case as new Releases become generally available.
1.3. On Premise Licensed Software. For Licensed Software not hosted by Trimble, Customer is responsible for installing all Releases. Upon Customer’s election to install a Release, Customer agrees to cease all use of the prior version of the Licensed Software and destroy all copies. Releases may require Customer to update third party software, hardware, or operating systems at Customer’s expense.
2. Support
2.1. Generally.
a) Trimble shall use the applicable level of effort to correct or provide a workaround for any reproducible error in the Product attributable to Trimble commensurate with the severity of the error, as reasonably determined by Trimble in accordance with Section 2.3 below.
b) For certain Products as set forth in Section 2.2(a) below, Trimble may provide a customer support portal (the “Support Portal”), which may allow Customer to submit support requests, report issues, view case histories, search the general knowledge database, and other features, as applicable. In the event of any conflicts between the terms set forth herein and any set forth in the applicable Support Portal, the terms herein shall govern. c) For certain Products as set forth in Section 2.2(a) below, Trimble will provide support to Customer only by communication with the contacts designated by Customer in the Support Portal or otherwise as instructed by Trimble (each, a "Authorized Support Contact"). Customer may update Authorized Support Contact(s) from time to time as instructed by Trimble. Trimble may require the Authorized Support Contact(s) to have the relevant technical knowledge regarding the Products necessary to assist Trimble as needed.
d) Upon identification of any error that cannot be resolved by Customer as first line of support (e.g., via the Support Portal, its internal staff, etc.), then Customer (through its Authorized Support Contact(s)) shall promptly notify Trimble of such error and shall provide Trimble with enough information, assistance, and cooperation to reproduce the error, including a listing of output and any other data that Trimble may reasonably request in order to reproduce the error and operating conditions under which the error occurred or was discovered. Trimble shall not be responsible for correcting any errors not attributable to Trimble.
e) For certain Products, Trimble may provide additional or different support services or procedures as set forth in the applicable documentation, support handbook, or other written documentation provided by Trimble, if any (the “Additional Support Documentation”). If there is any conflict between these support terms and such Additional Support Documentation with respect to the description of support services or procedures, the provisions of such Additional Support Documentation will prevail. Trimble may use third-parties to provide support and maintenance services on its behalf. Customer expressly consents to Trimble permitting such third parties to access Customer information and data
364
CC 03-07-2023
364 of 773
to perform the support services.
2.2. Reporting; Availability
a) Support portals and general availability is described below.
Product Support Portal*
Authorized
Support Contacts
Only?**
AgileAssets https://agileassets.com/techsupport Yes
Cityworks https:mycityworks.force.com Yes
e-Builder
(non-Fed Ramp)
https://www.e-builder.net/customer-center No
e-Builder
(Fed Ramp)
Support information available upon request. Yes
Trimble
Water
https://mytrimblewater.force.com/s/login No
* Additional phone numbers and hours of availability for contacting Trimble with support requests may be listed in the Support Portal.
2.3. Severity Priority Levels. As soon as reasonably practicable after Customer submits the relevant case information, Trimble will collect additional information and categorize the issue into one of four classifications as set forth below in good faith.
Upon Customer submission of the case information, Trimble will use commercially reasonable efforts to issue a Response (as defined below) by the indicated target response goal set forth below. Once the priority level is determined, Trimble will use the level of effort for resolution described below.
Priority
Level*
Priority Criteria Target
Response Goal**
Level of Effort for Resolution
P1 most urgent and impactful ½ hour Trimble and Customer will prioritize any reasonably available
resources to resolve the situation or
identify a work around.
P2 urgent and impactful, but
usually has an acceptable
temporary workaround
½ hour Trimble and Customer will
prioritize any reasonably available
resources during standard business
hours to resolve the situation or
identify a work around.
P3 important, but not urgent
and impactful
4 hrs Trimble and Customer will use
generally available resources during
standard business hours to resolve the
situation or identify a work around.
P4 a low priority, informational,
or an enhancement request
24 hrs Trimble and Customer are willing
to use generally available resources
during standard business hours to
provide information or assistance.
365
CC 03-07-2023
365 of 773
* See Priority Matrix and definitions below. The main factors in determining priority level are urgency and impact. Trimble will also consider in good faith any additional relevant facts and circumstances in consultation with Customer that may result in a mutually agreed upon change in priority level.
** The use of the term “hour(s)” refers to business hours based on Trimble’s regular business schedule, and excludes nights, weekends and locally-observed holidays (e.g., 24 hrs equals 3 business days at 8 hrs a day). “Response” means acknowledgment of the issue via the creation of a case number. Determination of priority level will occur as soon as practicable thereafter.
Priority matrix
Impact
Widespread Large Localized Individualized
Urgency Critical P1 P1 P2 P2
High P1 P2 P2 P3
Medium P2 P3 P3 P3
Low P4 P4 P4 P4
Definitions
Impact
Impact is a measure of the number of
users, sites, or devices affected.
Widespread. More than three quarters of users or
devices are affected.
Large. (1) Multiple sites are affected or (2) between onehalf and three-quarters of users or devices are affected.
Localized. (1) A single site is affected or (2) less than one half of users or devices are affected.
Individualized. A single or a small number of users or
devices are affected.
Urgency Urgency is a measure of the severity of
the issue on the Customer’s operations.
Critical. Use of Product as a whole or core functionality is stopped with no work around and with severe immediate
impact to the Customer’s operations (e.g., outage).
High. Use of Product as a whole or core functionality is severely degraded or a work around is available, and with immediate impact to the Customer’s operations.
366
CC 03-07-2023
366 of 773
Definitions
Medium. Use of Product or any functionality is not
working as expected, and can be addressed through
education, training, work around, work order, or a future enhancement.
Low. All other requests that are not the above.
2.4. Limitations and Conditions.
(a) Unless otherwise expressly provided by Trimble in writing, Trimble does not support: (i) use of the Product in a manner other than as authorized in the Agreement; (ii) alterations of the Product by Customer or a third-party; (iii) conversions of Customer’s databases to accommodate new hardware or software, (iv) Customer Data debugging or manipulation, (v) recurring support issues where Customer failed to initiate corrective actions previously recommended by Trimble or to provide information requested by Trimble, (vi) training, implementation, report creation, onsite support, customizations (e.g., scripting or integration), or assistance with server migrations are not included as part of Support, but such services but may be purchased separately, (vii) any Release of the Product other than the current and an immediately preceding Release unless covered under a separate agreement (this includes preview, beta, or candidate releases), (viii) Third-party Materials or Third-Party Platforms; (ix) any Products for which maintenance and/or support fees have not been paid, or (x) any Product where Customer has failed to meet its obligations with respect to the Agreement, including, without limitation, as set forth below. (b) Customer must (i) require its personnel to obtain adequate training to operate the Product(s), (ii) if required by Trimble for the particular Product, designate Authorized Support Contacts who will submit all support cases to Trimble, (iii) provide internet and/or network access for Trimble when requesting support; and (iv) provide all information and assistance reasonably requested by Trimble related to the support request. (c) For Licensed Software not hosted by Trimble, Customer is responsible for (i) securing the server environment, local network, and system security and protocols, including having staff qualified to assume responsibility for management administration and support for Customer’s hardware, database, and any Third-Party Materials and/or Third-Party Platforms, (ii) maintaining regular and frequent data backups, and recovering such data if necessary from backups maintained by Customer, (iii) establishing a secure method of access to Customer’s network as well as maintaining security protocols for Customer’s network; and (iv) incorporating Releases and any associated data migration.
(d) If any Customer support request is subject to any of the foregoing, then Trimble reserves the right to impose support fees at its then standard commercial time and materials rates for all such services, including pre-approved travel and per diem expenses to be reimbursed consistent with Customer’s policies. Trimble will notify Customer in advance of incurring any such fees.
367
CC 03-07-2023
367 of 773
368
CC 03-07-2023
368 of 773
Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022
Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable toCity.
INSURANCE POLICIES AND MINIMUMS REQUIRED
1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13).
c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or selfinsurance shall be called upon to protect City as a named insured.
2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written verification of noemployees.
4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. If written on a claims made form:
a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services.
EXHIBIT D
Insurance Requirements
Design Professionals & Consultants Contracts
369
CC 03-07-2023
369 of 773
Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022
OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:
Additional Insured Status
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used).
Primary Coverage
Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it.
Notice of Cancellation
Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums.
Waiver of Subrogation
Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either:
the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City.
Acceptability of Insurers
Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better.
Verification of Coverage
Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term.
Subconsultants
Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies.
Higher Insurance Limits
If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant.
Adequacy of Coverage
City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. 370
CC 03-07-2023
370 of 773
371
CC 03-07-2023
371 of 773
372
CC 03-07-2023
372 of 773
373
CC 03-07-2023
373 of 773
374
CC 03-07-2023
374 of 773
375
CC 03-07-2023
375 of 773
376
CC 03-07-2023
376 of 773
CITY OF CUPERTINO
Agenda Item
23-12026 Agenda Date: 3/7/2023
Agenda #: 7.
Subject: Consider adopting a resolution authorizing the City Manager to take all necessary steps to accept $5,000,000 in specified grant funds from the Budget Act of 2022-2023 for the McClellan Road Bridge Reconstruction Project
Adopt Resolution No. 23-034 (Attachment A) authorizing the City Manager to execute a Funds Transfer Agreement and any amendments thereto and take all necessary steps to accept $5,000,000 in specified grant funds from the Budget Act of 2022-2023 for the McClellan Road Reconstruction Project
CITY OF CUPERTINO Page 1 of 1 Printed on 3/1/2023
powered by Legistar™377
CC 03-07-2023
377 of 773
CITY COUNCIL STAFF REPORT
Meeting: March 7, 2023
Subject
Consider adopting Resolution No. 23-XXX authorizing the City Manager to take all necessary steps to accept $5,000,000 in specified grant funds from the Budget Act of 2022-2023 for the McClellan Road Bridge Reconstruction Project.
Recommended Action
Adopt Resolution No. 23-XXX (Attachment A) authorizing the City Manager to execute a Funds Transfer Agreement and any amendments thereto and to take all necessary steps to accept $5,000,000 in specified grant funds from the Budget Act of 2022-2023 for the McClellan Road Reconstruction Project.
Reasons for Recommendation
The McClellan Road bridge is situated along McClellan Road (an important collector street) and is one of only three east-west connections over Stevens Creek within the City of Cupertino’s jurisdiction. The nearest east-west connection is the Stevens Creek Boulevard bridge, which is situated approximately one mile north.
The McClellan Road bridge was constructed in 1920 (over 100 years ago) and has a very low sufficiency rating (46.5), with numerous deficiencies as documented in the latest Caltrans bridge inspection report. This bridge is nearing the end of its useful life. The Public Works Department has been tracking the condition of the McClellan Road bridge for more than a decade.
Due to the age of the McClellan Road Bridge structure, its importance for connectivity within the City, concerns over recent bridge collapses nationally (notably the bridge collapse in Pittsburgh, PA), the environmental sensitivity of Stevens Creek, and the estimated cost of $7.5 million to reconstruct the bridge, the City has been looking for funding to help initiate a reconstruction project.
The recommended action with this report will serve only to accept funds from the State.
Future actions, including awarding of contracts, additional funding, design approval, etc., will be presented to the Council at future dates as appropriate. 378
CC 03-07-2023
378 of 773
Discussion
In February 2022, the City Manager’s Office was approached by Assemblymember Evan Low’s office asking if the City had any budget requests for the 2022 State budget. On March 1, 2022, the Public Works Department prepared funding request documentation for a project to reconstruct the McClellan Road Bridge due to the condition of this structure. The grant application was approved by the State and the City was awarded $5 million for the reconstruction project, and in September 2022, Resolution No. 22-115 was approved by City Council accepting the State funding.
The State Legislature delegated to the California Department of Transportation (DOT) the responsibility for administering the grant and assigning the necessary documentation and procedures. As a procedural step to acquire the specified grant funds, DOT requires that City Council adopt a Resolution delegating authority to the City Manager to execute a Funds Transfer Agreement and any amendments thereto, and to take all necessary steps to accept the funds. A resolution in the form required by the DOT is provided as Attachment A.
With the granting of this money, the City would be able to seek other grant funds that require fund matches, as well as initiate the design and environmental clearance for the project.
Sustainability Impact
Reconstruction of the McClellan Road Bridge is consistent with the City’s sustainability goals. The project increases community resiliency by upgrading important infrastructure and also supports multi-modal transport options for cars, buses, bikes, and pedestrians.
Fiscal Impact
With the approval of the recommended action, the City would receive $5 million for reconstruction of the McClellan Road Bridge. The remaining unfunded portion of the project is estimated to be $2,500,000. Prior to initiating the project, the City will seek further grant opportunities to cover the remaining unfunded portions of the project. If further grant funding cannot be acquired, the City will return to Council seeking either general fund allocations to cover the unfunded portion or will seek direction from City Council to return the specified grant funds.
SOURCE AMOUNT
State Allocation (Specified Grant Funds) $5,000,000
Currently unfunded portions of the project $2,500.000
ESTIMATED PROJECT TOTAL $7,500,000
California Environmental Quality Act (CEQA)
Acceptance of the funds is not considered a project under CEQA. The project will complete any necessary environmental review as required under CEQA. _____________________________________
379
CC 03-07-2023
379 of 773
Prepared by: Chad Mosley, Interim Director of Public Work Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Draft Resolution
380
CC 03-07-2023
380 of 773
RESOLUTION NO. ________
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
AUTHORIZING EXECUTION OF CALIFORNIA DEPARTMENT OF
TRANSPORTATION AGREEMENTS
FOR GRANT FUNDS FROM THE BUDGET ACT OF 2022/23, CALIFORNIA STATE BUDGET, SECTION 19.56(F)(1)(B) - $5,000,000 TO THE CITY OF
CUPERTINO FOR THE MCCLELLAN ROAD BRIDGE RECONSTRUCTION
PROJECT
WHEREAS, the California Department of Transportation has been delegated the responsibility by the Legislature of the State of California for the administration of a $5,000,000 grant to the City of Cupertino for McClellan Road Bridge Reconstruction, and setting up the necessary procedures governing the transfer of funds; and
WHEREAS, said procedures established by the California Department of Transportation require the applicant’s Governing Body to authorize by resolution the execution of a Funds Transfer Agreement before submission of said applications to the State; and
WHEREAS, the Fund Transfer Agreement must be executed with the California Department of Transportation before such funds can be claimed; and WHEREAS, the City of Cupertino wishes to delegate the authority to execute the Funds Transfer Agreement and any amendments thereto and to take all necessary steps to accept the grant funds to the City Manager; and NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby designate the City Manager as the person authorized to execute the Funds Transfer Agreement and any amendments thereto and to take all necessary steps to accept the grant funds with the California Department of Transportation.
BE IT FURTHER RESOLVED that this Resolution is not a project under the requirements of the California Environmental Quality Act, together with related State CEQA Guidelines (collectively, “CEQA”) because it has no potential for resulting in physical change in the environment. In the event that this Resolution is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with 381
CC 03-07-2023
381 of 773
Resolution No. __________________
certainty to have no possibility that the action approved may have a significant effect on the environment. CEQA applies only to actions which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. In this circumstance, the proposed action of executing an agreement to accept grant funds would have no or only a de minimis effect on the environment. The foregoing determination is made by the City Council in its independent judgment.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7
th day of March, 2023, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
382
CC 03-07-2023
382 of 773
CITY OF CUPERTINO
Agenda Item
23-11924 Agenda Date: 3/7/2023
Agenda #: 8.
Subject: Consider amending the Santa Clara Valley Urban Runoff Pollution Prevention Program (SCVURPPP) Memorandum of Agreement (MOA) to extend the term through one fiscal year beyond the date of termination of the current Municipal Regional Stormwater Permit (MRP). The current five -year permit term would end June 30, 2027, so the MOA term would end on June 30, 2028, unless the MRP is extended. There are no other amendments proposed at this time.
Authorize the City Manager to execute the fourth amendment (Attachment A) to an agreement providing for implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (Attachment B), a multi-jurisdictional agreement between Santa Clara County, the Santa Clara Valley Water District, and thirteen Santa Clara County municipalities.
CITY OF CUPERTINO Page 1 of 1 Printed on 2/28/2023
powered by Legistar™383
CC 03-07-2023
383 of 773
CITY COUNCIL STAFF REPORT
Meeting: March 7, 2023
Subject
Consider amending the Santa Clara Valley Urban Runoff Pollution Prevention Program (SCVURPPP) Memorandum of Agreement (MOA) to extend the term through one fiscal year beyond the date of termination of the current Municipal Regional Stormwater Permit (MRP). The current five-year permit term would end June 30, 2027, so the MOA term would end on June 30, 2028, unless the MRP is extended. There are no other amendments proposed at this time.
Recommended Action
Authorize the City Manager to execute the fourth amendment (Attachment A) to an agreement providing for implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (Attachment B), a multi-jurisdictional agreement between Santa Clara County, the Santa Clara Valley Water District, and thirteen Santa Clara County municipalities.
Reasons for Recommendation
Background
The SCVURPPP was originally formed in 1990 through a MOA among Santa Clara Valley-based local governments, including the City of Cupertino. The SCVURPPP program is comprised of the Santa Clara Valley Water District (Valley Water), the County of Santa Clara (County), and thirteen other cities and towns. The SCVURPPP program assists local governments, including Cupertino, to comply with a California Regional Water Board-issued permit which is required for discharges of storm water under the federal Clean Water Act (Stormwater Permit).
The MOA supports compliance with Clean Water Act requirements that apply to the City’s stormwater system. Municipalities are required to have a State-issued permit to discharge rainwater through their storm drainage systems to creeks, and ultimately, the San Francisco Bay. A new Municipal Regional Stormwater National Pollutant Discharge Elimination System (NPDES) Permit was issued to 76 Bay Area permittees, including Cupertino, in May 2022 and became effective July 1, 2022. As the third version of this permit, it is referred to as the Municipal Regional Permit 3.0 (MRP 3.0). This re-issued permit continues previous requirements and contains new requirements such as 384
CC 03-07-2023
384 of 773
tracking unhoused encampments near creeks and working locally and regionally to reduce water quality-related impacts from them, and lowered thresholds for developed properties to install green stormwater infrastructure features to treat stormwater.
The SCVURPPP enables participating agencies to take a coordinated approach and leverage resources to comply with the stormwater requirements. The program allocates costs to its fifteen member agencies based upon a combination of benefits received and stormwater runoff factors. This approach has proven highly effective in assisting the City in addressing permit responsibilities to reduce the pollution of local creeks and the San Francisco Bay.
The SCVURPPP’s success has also been recognized outside of the Bay Area. For example, it was awarded national gold level awards for innovation and program management, citing leadership in using novel approaches to reduce stormwater pollution and commitment to installing green infrastructure. The SCVURPPP was also honored with the 2016 overall highest score in the nation for a Phase 1 Municipal Stormwater Program. These awards are part of the National Municipal Stormwater and Green Infrastructure Awards program, led by the Watershed Environment Federation through a cooperative agreement with the U.S. Environmental Protection Agency (EPA).
Discussion
The SCVURPPP MOA can only be amended by unanimous written agreement from all jurisdictions, with approval from Councils or Boards requested by the end of March and required no later than April 19, to ensure continuation of the program. If one or more member agencies do not execute the agreement by the deadline, the agreement becomes null and void for ALL member agencies. A new agreement would then need to be developed and executed amongst those member agencies who would like to be part of SCVURPPP.
The SCVURPPP program is overseen by staff representatives from each of the jurisdictions who meet monthly as the Management Committee. Based on a recent vote of the program’s Management Committee on January 19, in which Cupertino participates, a fourth amendment of the MOA to extend SCVURPPP on its original terms was unanimously approved for referral to each governing body for execution. The extension will allow the program to continue to operate and serve the participating agencies throughout the current MRP 3.0 term (July 1, 2022 – June 30, 2027) plus one additional fiscal year, meaning that SCVURPPP will provide assistance until at least the end of June 2028. This includes support through the process of the permit’s next reissuance by the San Francisco Bay Regional Water Quality Control Board. All SCVURPPP participants have been asked to obtain authorization and return an appropriate signature on the amendment as soon as possible as the MOA will expire on June 30, if no action is taken.
Sustainability Impact
385
CC 03-07-2023
385 of 773
A significant sustainability benefit is the reduction or elimination of pollutant discharges, which could degrade local creeks and threaten the supply of clean water.
Extension of the MOA is consistent with the City’s General Plan Community Vision 2040: GOAL ES-7 - Ensure Protection and Efficient Use of Water Resources.
Fiscal Impact
As with all prior amendments, no change has been proposed relative to the funding allocation for SCVURPPP, which was negotiated among the participating local governments at the time of its formation in 1990. The cost sharing allocation set forth in the MOA allocates 30.2% to Valley Water, 30.1% to the City of San Jose, and the remainder to the remaining 13 other municipalities that participate in the SCVURPPP Program in a manner roughly proportionate to community size and runoff from respective jurisdictions. Cupertino’s share is 2.46%.
Approval of the fourth amendment to the agreement providing for implementation of The Santa Clara Valley Urban Runoff Pollution Prevention Program commits the City to continued participation in SCVURPPP until one year beyond the termination date of the City’s next NPDES stormwater discharge permit. The current permit, if not extended by the Water Board, will terminate on June 30, 2027. Thus, the MOA term will end June 30, 2028, unless the Water Board extends the term of the permit, which would then extend the MOA term accordingly. This includes annual payment of the City’s proportionate share (2.46%) of program costs ($139,242 for Fiscal Year (FY) 23-24). Continued funding for the City’s participation in the Program for FY 23-24 is, as in all previous years, included in the City’s Non-Point Source budget (230-81-802).
The City’s permit compliance costs for implementing the NPDES permit include water monitoring, polychlorinated biphenyls controls, litter eradication, low impact development and maintenance verification, green infrastructure planning, public outreach, construction site and commercial property inspections, and the investigation of illicit discharges. Costs for these activities would far exceed the City’s current NonPoint Source budget if the City attempted to implement them without participating in SCVURPPP. The City’s allocated cost is necessary to ensure compliance with the increasingly stringent State and Federal Clean Water Act requirements and increased program costs.
California Environmental Quality Act (CEQA)
The execution of the MOA and implementation of the NPDES program, and amendment to an existing agreement are exempt from CEQA pursuant to CEQA Guidelines section 15308 (“actions taken by regulatory agencies . . . to assure the maintenance, restoration, enhancement, or protection of the environment.”)
_____________________________________
Prepared by: Ursula Syrova, Environmental Programs Manager 386
CC 03-07-2023
386 of 773
Reviewed by: Chad Mosley, Interim Director of Public Works Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – 4
th SVURPPP MOA Amendment
B – SCUVRPPP MOA Original
387
CC 03-07-2023
387 of 773
1 FOURTH AMENDMENT TO AGREEMENT
PROVIDING FOR IMPLEMENTATION OF
THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM
THIS FOURTH AMENDMENT TO AGREEMENT PROVIDING FOR
IMPLEMENTATION OF THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM (the “Amendment”) is entered into by and between the SANTA CLARA VALLEY WATER DISTRICT, a local public agency of the State of California (“District”); CITY OF CAMPBELL, a municipal corporation of the State of California; CITY OF CUPERTINO, a municipal corporation of the State of California; CITY OF LOS ALTOS, a municipal corporation of the State of California; TOWN OF LOS ALTOS HILLS, a municipal corporation of the State of California; TOWN OF LOS GATOS, a municipal corporation of the State of California; CITY OF MILPITAS, a municipal corporation of the State of California; CITY OF MONTE SERENO, a municipal corporation of the State of California; CITY OF MOUNTAIN VIEW, a municipal corporation of the State of California; CITY OF PALO ALTO, a municipal corporation of the State of California; CITY OF SAN JOSE, a municipal corporation of the State of California; CITY OF SANTA CLARA, a municipal corporation of the State of California; CITY OF SARATOGA, a municipal corporation of the State of California; CITY OF SUNNYVALE, a municipal corporation of the State of California; and COUNTY OF SANTA CLARA, a political subdivision of the State of California.
All of the above-mentioned entities are hereinafter collectively referred to as “Parties” or individually as “Party.”
RECITALS
A. The Parties previously entered into that certain Agreement Providing For Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (the “Agreement” or “MOA”) pursuant to which the Parties established certain terms and conditions relating to the implementation and oversight of the Santa Clara Valley Urban Runoff Pollution Prevention Program (the “Program”), including a cost sharing allocation, which was appended thereto as Exhibit A. Unless otherwise set forth herein, all terms shall have the meaning set forth in the Agreement as amended. A copy of the Agreement inclusive of Exhibit A is attached hereto as Appendix 1. A copy of the Agreement inclusive of all of its previous amendments is available via the internet at https://scvurppp.org/wpcontent/uploads/2019/10/MOA_2016_complete_package_DEC_2016.pdf); B. The Agreement originally provided for a five-year term, which, based on its execution, was set to conclude on or about March 10, 2005. However, on or about February 20, 2005, the Parties unanimously entered into a First Amendment to the Agreement, which extended the term of the Agreement by one additional year; Attachment A
388
CC 03-07-2023
388 of 773
2 C. The Parties thereafter unanimously entered into a Second Amendment to the Agreement, which extended the term of the amended Agreement by “one fiscal year beyond the termination date of the (then) next NPDES Permit issued to the Parties, including any administrative extension of the (then) next NPDES Permit’s term which occurred pursuant to the NPDES regulations.” The next NPDES permit applicable to the Parties (and others) was subsequently adopted by the California Regional Water Quality Control Board, San Francisco Bay Region (“RWQCB SFBR”) on October 14, 2009 and was known as the Municipal Regional Permit (“MRP”) because it covered numerous public agencies in the San Francisco Bay Region in addition to the Parties. The MRP was then administratively extended until a new NPDES Permit applicable to the Parties (and the other public entities in the San Francisco Bay Region) was adopted by the California Regional Water Quality Control Board, San Francisco Bay Region, on November 19, 2015 (“MRP 2.0”). MRP 2.0 became effective on January 1, 2016 and was originally scheduled to terminate on December 31, 2020; D. The Parties thereafter unanimously entered into a Third Amendment to the Agreement, which once again extended the term of the amended Agreement by “one fiscal year beyond the termination date of the next NPDES Permit issued to the Parties, including any administrative extension of the next NPDES Permit’s term which occurred pursuant to the NPDES regulations.” MRP 2.0 was then administratively extended, largely due to the COVID-19 pandemic, until a new NPDES Permit applicable to the Parties (and the other public entities in the San Francisco Bay Region) was adopted by the California Regional Water Quality Control Board, San Francisco Bay Region, on May 11, 2022 (“MRP 3.0”). MRP 3.0 became effective on July 1, 2022 and is currently scheduled to terminate on June 30, 2027 unless administratively extended; E. The Parties expect to utilize the Program to continue to represent their interests relative to MRP 3.0 (including with respect to an administrative appeal of its adoption that the State Water Resources Control Board is considering to pursue on its own motion), to help them effectuate certain aspects of compliance with MRP 3.0, and, beyond that, in negotiating the terms of a further renewed NPDES Permit when MRP 3.0 nears the end of its anticipated five-year term and any administrative extension provided thereto;
F. The Parties also expect to continue to utilize the Program’s preferred approach of achieving consensus to resolve issues and reach decisions, and to rely on the Majority Vote mechanism set forth in Section 2.08 of the Agreement at the Management Committee level only when consensus-based resolutions appear or become elusive; G. The Parties now desire to update the Agreement as previously amended and further extend the term of the MOA as set forth below; H. Section 7.02 of the MOA provides that it may be amended by the unanimous written agreement of the Parties and that all Parties agree to bring any proposed amendments to their Council or Board, as applicable, within three (3) months following acceptance by the Management Committee; and
389
CC 03-07-2023
389 of 773
3 I. The Program’s Management Committee accepted this Amendment for referral to the Parties’ Councils and/or Boards at its meeting on January 19, 2023.
NOW, THEREFORE, THE PARTIES HERETO FURTHER AGREE AS
FOLLOWS:
1. Recognition of Current Permit. Recital F of the Agreement, as previously amended, is hereby further amended by the addition of the following subsections:
6. Order No. R2-2009-0074 (the Municipal Regional Permit, NPDES Permit CAS612008); adopted October 14, 2009 and amended by the RWQCB SFBR on November 28, 2011;
7. Order No. R2-2015-0049 (MRP 2.0, NPDES Permit CAS612008); adopted by the RWQCB SFBR on November 19, 2015;
8. Order No. R2-2022-0018 (MRP 3.0, NPDES Permit CAS612008); adopted by the RWQCB SFBR on May 11, 2022.
2. Extension of Term of Agreement. Sections 6.02 and 6.02.01 of the Agreement, as previously amended, are hereby replaced as follows:
This Agreement shall have a term extending one fiscal year beyond the date of termination of MRP 3.0; such termination date shall, however, be deemed to include any administrative extension of MRP 3.0 which occurs or arises pursuant to the NPDES regulations or any modification of the MRP 3.0
termination date that arises from an NPDES permitting action undertaken by the RWQCB SFBR or California State Water
Resources Control Board.
3. Superseding Effect. This Fourth Amendment of the Agreement shall supplement all prior amendments of the Agreement and supersede any conflicting provisions of the prior amendments of the Agreement.
[remainder of page intentionally blank]
390
CC 03-07-2023
390 of 773
4 IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment effective as of the last date indicated below or April 19, 2023, whichever arises earlier.
Santa Clara Valley Water District: By: ____________________________________ Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
County of Santa Clara: By: ____________________________________ Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
City of Cupertino: By: ____________________________________ Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
391
CC 03-07-2023
391 of 773
Attachment B
392
CC 03-07-2023
392 of 773
393
CC 03-07-2023
393 of 773
394
CC 03-07-2023
394 of 773
395
CC 03-07-2023
395 of 773
396
CC 03-07-2023
396 of 773
397
CC 03-07-2023
397 of 773
398
CC 03-07-2023
398 of 773
399
CC 03-07-2023
399 of 773
400
CC 03-07-2023
400 of 773
401
CC 03-07-2023
401 of 773
CITY OF CUPERTINO
Agenda Item
23-12042 Agenda Date: 3/7/2023
Agenda #: 9.
Subject: Consider a four-year contract with Nomad Transit LLC (Via) for the Transit & Intercity Rail Capital Program (TIRCP) funded Via expansion into the City of Santa Clara, with two sites in Mountain View, deployment of an electric vehicle (EV) fleet, construction of necessary charging stations, and a resolution authorizing execution of a Master Agreement with Caltrans, which is a funding pre-requiste of the TIRCP grant program.
1. Approve a four-year contract with Nomad Transit, LLC (Attachment A);
2. Adopt Resolution No. 23-035 (Attachment B) authorizing the City Manager to execute the Caltrans Master Agreement; and
3. Adopt Resolution No. 23-036 (Attachment C) approving a budget modification, increasing appropriations in the General Fund, Transportation, Via Shuttle program budget by $3,594,928 for the planning, launch, and operation of the Via-Cupertino/Santa Clara expansion with two sites in Mountain View, including design, construction, and contingency funds for installation of EV charging equipment to support the program.
CITY OF CUPERTINO Page 1 of 1 Printed on 3/1/2023
powered by Legistar™402
CC 03-07-2023
402 of 773
CITY COUNCIL STAFF REPORT
Meeting: March 7, 2023
Subject
Consider a four-year contract with Nomad Transit LLC (Via) for the Transit & Intercity Rail Capital Program (TIRCP) funded Via expansion into the City of Santa Clara, with two sites in Mountain View, deployment of an electric vehicle (EV) fleet, construction of necessary charging stations, and a resolution authorizing execution of a Master Agreement with Caltrans, which is a funding pre-requisite of the TIRCP grant program.
Recommended Action
1. Approve a four-year contract with Nomad Transit, LLC (Attachment A);
2. Adopt Resolution No. 23-XXX (Attachment B) authorizing the City Manager to execute the Caltrans Master Agreement; and
3. Adopt Resolution No. 23-XXX (Attachment C) approving a budget modification, increasing appropriations in the General Fund, Transportation, Via Shuttle program budget by $3,594,928 for the planning, launch, and operation of the Via-Cupertino/ Santa Clara expansion with two sites in Mountain View, including design, construction, and contingency funds for installation of EV charging equipment to support the program.
Reasons for Recommendation
On September 20, 2022, the City Council accepted an $8,465,000 grant from the California State Transportation Agency (CalSTA) from the TIRCP. This aligned with wrapping up the Work Program item and shifting this to an operational program. The effort continues to serve first mile/last mile needs with increasing ridership and aligns with the Climate Action Plan, Council Goals, and former Work Program items. The grant will fund approximately 50% of the cost of the Via-Cupertino community shuttle for a period of four years. As the grant pays retroactively, the requested budget allocation is for the entire project cost, inclusive of new service in Santa Clara that will be funded by the City of Santa Clara, pursuant to a funding agreement that will be brought to Council in the near future. Public Works staff provided Council with an overview of the pilot program, the grant application proposal, and ridership statistics at the September 20, 2022, meeting (Attachment D). Approval of the above recommendations would trigger the planning and deployment of an expanded Via service beginning in May with a fleet of EV’s.
403
CC 03-07-2023
403 of 773
The attached four-year agreement with Via is substantially similar to the existing contract approved by Council on September 20, 2022, which expires on June 30. The new contract will replace the current contract and includes a revised scope of work closely tied to the TIRCP grant application, consisting of an updated service zone map, requirements for an EV only fleet, and other general updates to the City of Cupertino’s standard contractual language. Additionally, contract negotiations resulted in minor changes to how subcontractors are described in the contract, to the mutual satisfaction of both parties.
Expansion & Electrification
At the February 15, 2022, City Council meeting, Transportation staff presented the TIRCP grant proposal that would expand Via-Cupertino’s services into the City of Santa Clara, with two sites outside of the service zone in Mountain View. The proposal was crafted to be attractive to CalSTA, as the TIRCP program is used to fund large projects that can bring additional passengers into the rail transit network. The Council was supportive of the application and staff filed an application on behalf of the City in March 2022.
The two City of Mountain View’s stops will include the Caltrain Station and El Camino Hospital as new destinations accessible from both Cupertino and Santa Clara. Staff plans to pursue additional grant funding opportunities in anticipation of continuation of the program to year five and beyond. Preliminary conversations with the City of Sunnyvale staff indicate a strong interest in participation in the future.
As the TIRCP grant requires the use of Zero Emissions Vehicles, the current fleet of vans will be replaced with Kia Niro EV’s, and with three Lighting 3ZEV wheelchair accessible vehicles (WAV). The installation of dedicated EV chargers at the Sports Center exit to Stelling Road is being planned to support the fleet. Although the City has a variety of existing public charging stations, it is necessary for transit vehicles to have a dedicated space to recharge at all times, without the risk of stations being occupied by the general public. The dedicated charging stations will be reserved for Via and City vehicles, however additional public charging stations are being considered adjacent to the new Via charging stations for use by the community.
Reduction in Project Length
The Via-Cupertino expansion described in the TIRCP grant application was initially proposed as a five-year program; however, Cupertino ridership has grown faster than anticipated since the grant application was submitted necessitating reconsideration of the original anticipated budget. In March 2022, the month the TIRCP application was submitted, Via-Cupertino completed 999 trips. In comparison, in January 2023, ViaCupertino’s monthly ridership reached 3,112 trips, with a growing utilization rate and a high level of ridesharing in the vehicle fleet. A memo from Via (Attachment E) provides 404
CC 03-07-2023
404 of 773
additional information regarding how Cupertino ridership recovery has outpaced other Via services in California.
While increased ridership is positive news, expansion into the City of Santa Clara and parts of Mountain View may cause the service to struggle to meet demand with the number of driver hours that were initially budgeted for in the proposal. This could result in long wait times and some rides being unserved. To address this, the project team proposes compressing the funding award to a four-year project schedule, which will enable scheduling more driver hours to accommodate the current and anticipated ridership. As the budget is a not-to-exceed amount, if ridership declines or does not meet expectations funds can be conserved to be used in future years to accommodate ridership fluctuations caused by external factors, such as economic or social conditions.
This proposed change will allow Via to increase driver hours and vehicle supply over four years, while serving the same number of trips envisioned in the original application. The $16,931,283 budget and estimated greenhouse gas (GHG) reduction of 76,000 MTCO₂e would remain unchanged. A request to Caltrans for this change was informally accepted by phone and authorization in writing is anticipated in the coming weeks. Staff will seek grant funding opportunities to help cover City matching funds and to extend the length of the program.
Caltrans Master Agreement
An active Caltrans Master Agreement is a pre-requisite for the City to receive Caltrans funds. Once executed, the agreement will remain active for a period of 10 years. If additional Caltrans funds are solicited for this project or other City projects, an additional agreement will not be necessary until the Master Agreement expires.
Sustainability Impact
The electrification and expansion of Via-Cupertino will reduce GHG by providing residents with convenient, sustainable EV transportation that is local and includes regional rail stations. The expanded service will add the Mountain View Caltrain station, which has “Baby Bullet” express rail with service to San Francisco. The expansion also includes Caltrain stations in Santa Clara, providing a first/last mile connection to four regional rail stations (and a fifth station beginning in year four of the grant.) Enabling long distance commuter rail trips enhances the environmental benefit of the program, which was a key reason the City’s TIRCP application was approved by CalSTA.
Fiscal Impact
As Via-Cupertino transitions from a pilot program to an ongoing City program, the project will be included as part of the City’s base budget. The $16,931,283 four-year budget will be divided into two accounts, one for expenditures and another for offsets anticipated from the TIRCP grant and the City of Santa Clara, pursuant to a funding agreement that will be brought to Council in the coming months (Attachment F). Staff is also requesting a $350,000 allocation to pay for the installation of EV charging stations at the Cupertino Sports Center to support the electrified program. Staff will solicit grant 405
CC 03-07-2023
405 of 773
funds for the installation of the EV charging stations in addition to soliciting grant funds to cover the local match owed as part of this program.
The following accounts have been created to track Via expenses, offsets from grants, funds from the City of Santa Clara, and to better track grant reimbursements. 100-88-265 (General Fund, Transportation, Via Shuttle)
1. 100-88-265 440-430 (General Fund, Transportation, Via Shuttle – Intergovernmental State Grants)
2. 100-88-265 440-439 (General Fund, Transportation, Via Shuttle – Intergovernmental Government Agency Cost-Share)
Budget modification #2223-248 increases appropriations to the General Fund Transportation, Via Shuttle Program (budget unit 100-88-430) by $3,594,928 for the planning, launch, and operation of the Via-Cupertino-Santa Clara expansion, including design, construction, and contingency funds for installation of EV charging equipment to support the program. These costs are offset by revenue from TIRCP and City of Santa Clara, resulting in new costs to Cupertino of $932,917. These costs are recommended to be funded by an unassigned fund balance that is estimated at $63 million.
The following chart summarizes the anticipated four-year project budget as mentioned in Attachment F:
Total Cost:
Year 1
$3,244,928
Year 2
$3,806,378
Year 3
$4,070,272
Year 4
$5,809,705
Contract Total:
$16,931,283
Cost Share
TIRCP $1,622,464 $1,903,189 $2,035,136 $2,904,211 $8,465,000 Cupertino $932,917 $1,094,334 $1,170,203 $1,260,876 $4,458,330 Santa Clara $689,547 $808,855 $864,933 $1,644,618 $4,007,953 California Environmental Quality Act (CEQA)
The project is exempt from CEQA under CEQA Guidelines section 15301 (operation of an existing program), Public Resources Code section 21080.25 (transportation-related projects), and CEQA Guidelines section 15061(b)(3) (“common sense” exemption).
Next Steps
As the City of Cupertino was the recipient of the TIRCP grant, the City will administer the program for both cities. A funding agreement between the City of Cupertino and the City of Santa Clara will be brought to Council prior to the expansion into Santa Clara along with an update on the launch progress and schedule. _____________________________________
Prepared by: Chris Corrao, Senior Transit & Transportation Planner 406
CC 03-07-2023
406 of 773
Reviewed by: David Stillman, Transportation Manager
Reviewed by: Chad Mosley, Interim Director of Public Works Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Agreement with Nomad Transit, LLC (Via)
B – Draft Resolution – Caltrans
C– Draft Resolution – Budget
D –09-20-222 Council Staff Report
E – Via Letter on 4 Year Approach
F- 4 Year TIRCP Revised Budget
407
CC 03-07-2023
407 of 773
CITY OF
m PROFESSIONAL/CONSULTING SERVICES AGREEMENT
CUPERTINO
1. PARTIES
This Agreement is made by and between the City of Cupertino, a municipal corporation ("City"), and Nomad Transit, LLC ("Contractor"), a Delaware Limited Liability Company and a wholly owned subsidiary of Via Transportation, Inc. for the South Bay Microtransit Expansion project.
This agreement becomes effective on the last date signed below ("Effective Date").
2. SERVICES
Contractor agrees to provide the services and perform the tasks ("Services") set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19.
3. TIME OF PERFORMANCE
3.1 This Agreement begins on the Effective Date and ends on July 17, 2027 ("Contract Time"), unless terminated earlier as provided herein. Contractor's Services shall begin on the Effective Date and shall end July 17, 2027. The City's appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City's purchasing policy.
3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B.
3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time.
4. COMPENSATION
4.1 Maximum Compensation. A grant in the amount of$8,465,000 from the California State Transportation Agency (CalSTA) will cover approximately 50% of the expansion of the ViaCupertino program, including the conversion to a zero-emission vehicle fleet. The total value for this agreement including both local funds and grant funds is $16,931,283. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $16,931 ,283.00 ("Contract Price"), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor's actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City.
Page I of9
Professional/Consulting Contracts - Nomad Transit, LLC
Attachment A
408
CC 03-07-2023
408 of 773
4.2 Invoices and Payments. Unless otherwise specified in the scope of services, monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under the Agreement. Invoices must contain all information required by Caltrans and the California State Transportation Agency (CalSTA) for the Transit & Intercity Rail Capital Program (TIRCP) grant, facilitating the timely preparation of reimbursement requests.
5. INDEPENDENT CONTRACTOR
5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker's compensation, or other benefits from the City.
5.2 Contractor's Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 53 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code.
5.4 Subcontractors and Vendors. Only Contractor's employees, and Contractor's driver partners, vehicle lease providers, vehicle maintenance and storage providers, and other suppliers of goods or services to the Contractor under terms specified in an Independent Contractor Agreement (collectively, the "Vendors"), are authorized to work under this Agreement. Prior written approval from City is required for any other subcontractor proposed by Contractor, and the terms and conditions of this Agreement will apply to any approved subcontractor.
5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement.
5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor's business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in
Professional/Consulting Contracts - Nomad Transit, LLC
409
CC 03-07-2023
409 of 773
amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City's total expenses under this Agreement are not greater than they would have been had the determination not been made.
6. PROPRIETARY /CONFIDENTIAL INFORMATION
In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement.
Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document or other information or work, in any medium (collectively, "Work Product"), prepared by Contractor specifically for the City in connection with this Agreement will be the exclusive property of the City if agreed in writing between the parties, and shall not be shown to any third-party without prior written approval of City. For the avoidance of doubt, no intellectual property will be conceived, created or furnished under this Agreement, and all rights in, to and under Contractor's proprietary on-demand transit solution (the "Via Solution") shall remain the exclusive property of the Contractor. Contractor shall grant to the City all rights necessary to receive the benefit of the Via Solution during the term of the Agreement.
72 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered "works for hire" and all copyrights to the Work Product will be the property of City if agreed in writing between the parties. Contractor may use copies of the Work Product for promotion only with City's written approval. 73 Patents and Licenses. Contractor must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product of this Agreement.
7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following:
(a) The original Services for which Contractor was hired; (b) Completion of the original Services by others if Contractor fail to do so pursuant to Section 16 below;
(c) Subsequent additions to the original Services; and/or (d) Other City projects at City's own risk.
7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work
Professional/Consulting Contracts - Nomad Transit, LLC
410
CC 03-07-2023
410 of 773
Product, on recycled paper and copied on both sides, except for one single-sided original.
8. RECORDS
Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor's performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four ( 4) years from the date of City's final payment.
Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. (the "Public Records Act"). Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided, unless such records are otherwise exempt from public disclosure under the Public Records Act.
9. ASSIGNMENT
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Notwithstanding the foregoing, Contractor may assign its rights without such consent to (a) any of its subsidiaries or affiliates or (b) to an entity that acquires all or substantially all of the business or assets of Contractor, whether by merger, reorganization, acquisition, sale, or otherwise. Should the events in (a) or (b) occur, Contractor shall provide notice to the City no later than thirty (30) days after the occurrence of such event.
10. PUBLICITY/ SIGNS
Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City's contributions in making the project possible. The words "City of Cupertino" will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City.
11. INDEMNIFICATION; LIMITATION OF LIABILITY
11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants ("Indemnitees"), through legal counsel acceptable to City, 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) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following:
Professional/Consulting Contracts - Nomad Transit, LLC
411
CC 03-07-2023
411 of 773
(a) Breach of contract, obligations, representations, or warranties entered into by Contractor with a third-party;
(b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor, its subcontractors, its sub-subcontractors or Vendors; (d) Unauthorized use or disclosure of City's confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party.
11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim. At City's request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement.
11.3 Contractor's duties under this section are not limited to the Contract Price, workers' compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee.
11.4. Contractor's payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction.
11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor. 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.
11.6. Contractor's total liability arising out of this Agreement shall be limited to the greater of (a) Contractor's total applicable insurance coverage or (b) the Contract Price.
11. 7. This Section 11 shall survive termination of the Agreement.
12. INSURANCE
Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor's compensation or terminating the Agreement.
13. COMPLIANCE WITH LAWS
13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor's ability to perform. Contractor
Professional/Consulting Contracts - Nomad Transit, LLC
412
CC 03-07-2023
412 of 773
is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act.
13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a "public works" component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws.
13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision.
13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by the City's rules governing gifts to public officials and employees.
13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement.
14. PROJECT COORDINATION
City Project Manager. The City assigns Chris Corrao, Senior Transit and Transportation Planner, as the City's representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor.
Contractor Project Manager. Subject to City approval, Contractor assigns Kelley O'Conner as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor's Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City's Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative.
Professional/Consulting Contracts - Nomad Transit, LLC
413
CC 03-07-2023
413 of 773
15. POSTPONEMENT OF PROJECT
City may postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be given reasonable time to assemble the work and close out the Services. With City's pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum often percent (10%) of the total time expended to date in the performance of the Services.
16. TERMINATION
City may terminate this Agreement without cause at any time provided City gives Contractor at least ninety (90) days' written notice of the termination. In the event Contractor fails or refuses to perform any of the provisions of this Agreement, Contractor shall be deemed in default in the performance of this Agreement. If Contractor fails to cure the default within l 0 days after notice, or, if such failure is curable but not curable within such ten (10) day period, within such period of time as is reasonably necessary to accomplish such cure, the City may terminate the Agreement by giving Contractor written notice thereof, which shall be effective immediately.
Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product.
17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact.
18. ATTORNEY FEES
If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs.
19. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries of this Agreement.
20. WAIVER
Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of a breach shall not constitute waiver of another provision or breach.
21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature between
Professional/Consulting Contracts - Nomad Transit, LLC
414
CC 03-07-2023
414 of 773
the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling.
22. INSERTED PROVISIONS
Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate.
23. HEADINGS
The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit, or amplify the terms or provisions of this Agreement.
24. SEVERABILITY IP ARTIAL INVALIDITY
If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent.
25. SURVIVAL
All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect.
26. NOTICES
All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission:
To City of Cupertino
Office of the City Manager
10300 Torre Avenue
Cupertino, CA 95014
Attention: Chris Corrao
Email: [email protected]
To Contractor:
Nomad Transit, LLC
10 Crosby Street, Floor 2
New York, NY 10013
Attention: Legal Department
Email: [email protected]
Professional/Consulting Contracts - Nomad Transit, LLC
415
CC 03-07-2023
415 of 773
27. EXECUTION
The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CITY OF CUPERTINO
A Municipal Corporation
By _________ _
Name ---------
Title ----------
Date _________ _
APPROVED AS TO FORM:
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
DATE: --------
CONTRACTOR
cwi- A &W,1,n.4, By __________ _
Name Erin Abrams
Title Manager
---- ------
Date _F_e _b _2 _7 ,_2_0_2_3_
Professional/Consulting Contracts - Nomad Transit, LLC
416
CC 03-07-2023
416 of 773
Exhibit A
SCOPE OF WORK
City of Cupertino and City of Santa Clara On-Demand Shuttle Program NoMad Transit LLC ("Consultant") shall work with the City of Cupertino ("the City") in the implementation of this Scope of Work. The City is responsible for engaging with the City of Santa Clara and working together with the City of Santa Clara to provide the necessary inputs and signoff on this Scope of Work.
The Consultant will leverage proprietary technology to assist in the design, deployment, operations, maintenance, marketing and evaluation of an on-demand transit service in Cupertino, CA and Santa Clara, CA. The service will be flexible, dynamically adapting to and responding to demand in real-time, using optimized routes to maximize the number of passengers per-vehicle and per-trip. Regular performance monitoring and data reporting will be used to assess operations and allow for mutually agreed upon adjustments to the service at any time during the Program to increase awareness, ridership, and/or accommodate new or shifting demand.
Duration: The anticipated launch of the Program is Spring 2023, with the actual launch date contingent upon the timing of the Cupertino City Council authorization of the agreement for services. After a launch date has been mutually agreed upon by the Consultant and the City, dates referenced in this scope of work, including data sharing, launch timing, etc., will be based upon the set "Launch Date." Geographic Coverage: The geographic area includes all areas within the City of Cupertino, parts of Santa Clara, including areas shown in Exhibit C outside of the Cupertino boundary, including the Sunnyvale Caltrain station, Mountain View Caltrain station, El Camino Hospital and other areas mutually agreed upon by the Consultant and the City.
Task 1. Project Management & Administration
Task 1.1 Detailed Work Plan & Schedule
The Consultant will develop and maintain a detailed work plan and schedule for submission to the City Project Manager no later than 15 business days after the Notice to Proceed, which will seek to refine and keep up-to-date the following:
Key Consultant and Subcontract staff assignments, by task/subtask Identify and maintain schedule of start and stop dates for each task/subtask Identify key milestones and define expected deliverables/results
Deliverables
Detailed Work Plan & Schedule Documents
Updates to Documents
Task 1.2 Regular Staff Briefings
The Consultant Project Manager shall conduct and schedule regular staff briefings ("briefings"), by phone or in person, to report on Program service performance, completed tasks, deliverables, and significant issues encountered and resolved during the period since the previous briefing, with an explanation and revised schedule for any unmet tasks and/or deliverables. The briefing shall also provide an overview of activities and expected deliverables for the upcoming I -month period. Briefings will occur no less than weekly for the duration of the (four) weeks leading up to, and for 4 weeks following, the Launch Date, unless otherwise agreed upon by the City Project Manager. For the remainder of the term of the Contract, Consultant shall provide bi-weekly briefings to the City Project Manager, unless otherwise agreed upon by the City Project Manager.
417
CC 03-07-2023
417 of 773
Deliverables:
Weekly and Bi-Weekly meetings
Meeting agendas, notes and action items
Task 1.3 Monthly Invoicing
The Consultant shall submit to the City Project Manager invoices monthly on or around the 20th of each month to include expenses for the preceding month, with the billing period beginning and ending in the same calendar month.
Invoices shall have supporting documentation that includes a list of hours by day by Driver Partner ID with the associated applicable rate as well as a schedule showing the operating hours for the month.
Deliverables:
Monthly invoices
Supporting Billing Documentation
Task 1.4 General Project Management
Consultant will take responsibility for project management on a continuous basis during the course of the project and will designate a Project Manager to coordinate all required deliverables and perform all work described herein. The Consultant Project Manager will be empowered to enact decisions related to the project on the Consultant's behalf, and will serve as primary point of contact with the City Project Manager on an ongoing basis. The Consultant shall oversee subconsultant activities and will ensure that any subcontracted staff performing tasks have the appropriate skill levels and credentials.
Consultant shall commit to attending in-person at least (3) City Council meetings or major Program related events over the term of the Contract to provide staff support at key milestones, which may include service Launch Events. The City will give the Consultant at least four ( 4) weeks advance notice of such events.
The City will also designate a Project Manager to be the primary point of contact for the Consultant throughout the project duration. The Consultant shall keep the City Project Manager abreast of all coordination related to the project with outside agencies with a direct connection to the City regarding project funding, including both governmental agencies and private organizations, prior to any meeting with any such outside agency or organization.
In addition, the Consultant will ensure the project team includes personnel with expertise in service scoping, operations, driver onboarding, fleet maintenance, marketing, and data analytics. Leading up to the launch of, and during the course of the Program, the Consultant's project team, led by its Project Manager, will be closely engaged with the City in order to ensure that key project deliverables are provided in a timely manner, and that learnings from the Program are incorporated into its optimization.
Onsite support (pre-launch): Consultant Project Manager will be onsite for at least one (1) week prior to the Launch Date to oversee the implementation of the service.
Remote Support (post-launch): For the first month of service, the Consultant Project Manager will lead weekly follow-up calls to review all aspects of the service with City personnel. The Consultant Project Manager will also coordinate additional reviews of key operational topics as mutually decided upon by the Consultant and the City.
Deliverables:
Attendance at minimum (3) Council meetings or other major events.
Onsite and remote support including regular calls
Management and oversight for subcontracts General project management Task 2. Preliminary Service Planning, Design & Preparation Task
2.1 Project Kick-Off Meeting
418
CC 03-07-2023
418 of 773
At start of pre-launch phase, Consultant shall hold a kick-off meeting with the City Project Manager and relevant City personnel. The meeting will focus on establishing and introducing the Consultant and City project teams, reviewing a work plan and schedule for pre- launch preparations, and beginning detailed work on the Detailed Launch Plan & Service Parameters as defined below.
Deliverables:
Project Kick-off Meeting, including meeting agenda & notes Task 2.2 Detailed Launch Plan & Service Parameters
Beginning with the Project Kick-off Meeting and extending throughout the pre-launch phase as necessary, Consultant shall work closely with the City to jointly define and finalize all relevant parameters of the service as outlined below. As part of this collaboration, quality of service standards for the service will be mutually established in order to create a baseline for monitoring Consultant's performance.
Over the course of the project, decisions to change key parameters will be made collaboratively, and Consultant will work with the City to continuously adjust and optimize the system's features and settings in order to ensure it supports growing ridership. As such, the Baseline Service Parameters defined below may be re-defined or adjusted by mutual agreement between the City and Consultant either in advance of or after the Launch Date based on additional data or new information collected. Any changes to the Program Service Parameters will be subject to mutual agreement by the City and Consultant.
Baseline Service Parameters
Coverage Area
At Full Launch, the project will include the entire City of Cupertino as well as parts of Santa Clara, including areas mutually agreed upon outside of the City limits, including Kaiser-Permanente Santa Clara, West Valley Medical Center (PAMF), Sunnyvale Caltrain, Mountain View Caltrain and El Camino Hospital. Areas deemed inaccessible, including gated areas, are excluded from the service area. The launch of the system must serve the entire service area, however the Consultant may gradually deploy vehicles to balance efficient coverage with quality of service as data is gathered in order to fine-tune deployment elements as ridership grows.
Accessibility
Provision of Wheelchair Accessible Vehicles (WAV}
Upon receiving the Notice to Proceed, Consultant will commence development of a WA V fleet plan that satisfies relevant Federal Transit Administration (FTA) and Americans with Disabilities Act (ADA) requirements - including the equal provision of service to riders of all physical means. To fulfill this goal, Consultant shall deploy appropriately-trained drivers operating taxi or livery vehicles, or dedicated vehicles specifically deployed for the program.
To indicate their need for a WA V vehicle, a rider will select the "Wheelchair accessibility" option within their profile in the Via app that will prompt the system to dispatch an appropriate vehicle each time the rider makes a request (riders booking by phone would convey their need for a WA V vehicle to the dispatcher, who would make a permanent note in the rider's account). A WA V option will be deployed no later than the Launch Date.
Phone Booking Option
Via's technology is configured to allow a dispatcher to book rides on behalf of riders, allowing users of all technological abilities and access levels to enjoy the same level of service as those with a smartphone ( except for the experience and convenience that is specific to in-app rider ordering and tracking). The Consultant will provide as a feature of the service a phone number and a dedicated dispatcher to book and coordinate rides for users without smartphones. A phone booking option will be available as part of the service no later than the Launch Date.
419
CC 03-07-2023
419 of 773
Customer Service
The Consultant shall provide high-quality customer service to both customers and driver partners during the course of the Program. If an issue arises for a customer or driver before, during, or after a ride, parties will be able to reach Consultant staff by text message in real time, or by submitting an email ticket, which will be replied to promptly by Consultant staff. Riders who booked using the dedicated phone line will be able to receive phone support as required.
Hours of Operation
The Program will operate Monday through Saturday, excluding holidays, for which a mutual decision whether to operate will be made between the City and Consultant. The Consultant estimates the service will operate from 7am - 7pm Monday - Friday, and 9am-5pm Saturdays, subject to change based on demand data gathered during the initial launch period and subject to mutual decision between the Consultant and City.
The Program goal will be to provide operating hours as extensive and consistent as possible within the reasonable cost, as mutually agreed upon between the Consultant and City. As it is the intent of the Program to provide a reliable and predictable service, the Consultant shall seek to limit adjustments to the Hours of Operation to those changes deemed necessary or intended to grow ridership or enhance service.
Fare Structure
It is the intent of the Program to provide a consistent, flat-fare transportation service that enables community members of all incomes to access a convenient, high quality mobility option. The consumer cost to take a ride using the Program shall be as follows in the fare structure below, unless otherwise mutually agreed upon by Consultant and the City Project Manager:
Regular Fare (per trip): $3.50, with the option to reduce post launch as low as $2, as it relates to demand generation and rider acquisition tactics and targets.
Rider +friends (additional riders added onto a users' trip request): Half the regular per trip fare per-person, up to a maximum of four ( 4) riders under one (1) reservation (dependent upon vehicle capacity).
Weekly ViaPass: Set price per week, starting the first day of the first trip used. Offers up to a set number of trips per-day, each operational day of the week.
Senior (ages 65+), disabled, low-income, and students discounted rate passes: Riders who are eligible and submit necessary documentation shall receive 50% off all standard fares, including the Weekly ViaPass.
Consultant will work with City staff to determine appropriate fares for mutually agreed-upon out of zone destinations, listed in Cupertino Service Area Map, Exhibit C.
Consultant will work with City staff on developing additional fare packages, such as a monthly pass, and other ways to maximize fare-box recovery and increase ridership, including analyzing the benefit of rolling out distance and/or time-based pricing as a lever to control demand, if necessary.
The City will be responsible for verifying whether riders qualify for discounted fares. The City will identify simple methods of verification, such as student ID's for the student fare, or cards demonstrating that riders qualify for existing low-income programs to simplify the verification process to the maximum extent feasible.
Any changes to base ride cost will be made in response to service data, and with the intention of making the service as efficient and cost-effective as possible while retaining service accessibility. The City will retain full authority to approve any changes to the base ride cost range described above.
Fare payment options shall include payment by credit card submitted electronically through the Rider App or submitted through the Via system when booking is made for a rider over the phone.
FleetN ehicles
Dedicated vehicles will be offered by the Consultant's chosen third-party vehicle provider ("Vehicle Provider") to Driver Partners on a rental basis. The Vehicle Provider will offer a fleet ofup to thirteen (13) 420
CC 03-07-2023
420 of 773
branded, licensed and insured vehicles ("Fleet Vehicles"), all of which can fit a minimum of 4 passengers.
Those vehicles that can physically be fit with bike racks will have bike racks installed. The Fleet Vehicles shall include three (3) Wheelchair Accessible Vehicles (WA V) (approximately 20% of the total Fleet Vehicles) to be made available to independent contractor Driver Partners, who will be able to gain access to these vehicles after being registered onto the Platform. Consultant will ensure Vehicle Provider keeps vehicles clean and maintained in a preventive maintenance program for vehicles used in this program.
Fleet Electrification
Dedicated vehicles under this agreement will be electric vehicles. However, the WA Vs may be gas powered until such time as the on-order electric WA Vs can be in-fleeted (targeting May 2023). Consultant shall work with the City to align on a location and installation plan for electric vehicle charging infrastructure, which shall be paid for by the City. The City agrees to make such infrastructure dedicated for Consultant's use.
Consultant shall put in place standard operating procedures for charging the electric vehicles to ensure adequate fleet availability during all service hours.
Drivers
Qualified and accredited independent contractor drivers will be able to gain access to the Fleet Vehicles after being registered onto the Via system, enabling these individuals to sign up for specific daily slots or longer periods of work. Consultant shall establish driver registration and certification protocols designed to ensure compliance with applicable laws, regulations, or terms of project funding sources. Consultant shall ensure drivers are aware of the program and can articulate to riders program basics, including how to get additional program information.
Smartphone App
Consultant shall work closely with the City to provide a custom branded Smartphone App. As mutually agreed upon, the app may suggest locations to customers, or present service announcements, promotions, or discounted pricing through in-app messages or push notifications.
Consultant shall also work closely with the City on the eventual integration of Clipper Card payments into the Smartphone App, pending Clipper Card timelines for streamlined product rollout.
Technology Platform
Via will leverage its powerful suite of apps, real-time operations and administrative tools, and data analysis and reporting features to power the service. This platform will be the same one used to manage each Via service around the world. The Consultant will provide use of the Via technology platform that in real time aggregates riders traveling from multiple origins to multiple destinations efficiently, while optimizing the balance between vehicle utilization fleet- wide and a high quality of service. The Via system has fully automated ride proposal, booking, and dispatch services, and is accessible by mobile application and, as required, phone bookings. In order to serve those users who do not have a smartphone or may require additional technology assistance, the Consultant shall provide the option for account creation by phone during service hours.
Deliverables:
Final Launch Plan
Additional documentation of Parameters, as mutually agreed upon by Consultant and City Task 2.3 Technology Localization & Back-end Systems Setup Consultant shall localize all infrastructure technology, including mapping and real-time routing systems, specifically for the project, taking into account local geography and any algorithmic adjustments required in order to achieve system and service efficiency. Back-end operational systems, including those required for driver registration and supply monitoring, will be fully localized and maintained over the course of the Program.
421
CC 03-07-2023
421 of 773
Deliverables:
Completion of Technology Localization & Back-end Systems Setup Task 2.4 Driver Acquisition & On-Boarding
Consultant shall source independent contractor drivers from the community and surrounding areas if possible and shall verify that drivers possess all data and documentation to satisfy Via's standards as well as local and State requirements. Independent contractor drivers will go through registration, which includes an introduction to Via's system, customer service expectations, and customer and driver safety protocol and policies. Drivers will be subject to comprehensive background checks as required by local and State law.
Deliverables: Drivers fully registered to drive on the Via platform Task 2.5 Vehicle Delivery & Branding
· Vehicle Provider shall coordinate the delivery and availability of a fleet of up to thirteen (16) Fleet Vehicles such that these vehicles are ready to be driven by independent contractor drivers on the Launch Date.
Vehicle preparation will include successful completion of all relevant insurance, registration, licensure, and maintenance requirements. Fleet Vehicles will have custom co-branding in the form of vehicle decals or wrapping as to be easily recognizable to users of the service. Vehicle branding design will be finalized in collaboration with the City.
Deliverables:
Vehicle Fleet with custom co-branding
Task 2.6 WA V Service
The Wheelchair Accessible Vehicle (WA V) service shall satisfy relevant FT A ADA requirements, including the equal provision of service to potential riders of all physical means. To fulfill this goal, Consultant will either ( 1) ensure Vehicle Provider provides dedicated WA V to be used for the project or (2) identify and subcontract with wheelchair accessible vehicle (WA V) providers who have personnel that are trained to operate vehicles and equipment safety and to assist and treat individuals with disabilities in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities. Consultant will ensure that any drivers providing WA V service as part of the program will be trained to operate WA V vehicles and equipment safely, as well as to properly assist and treat individuals with disabilities in a courteous and respectful manner.
Deliverables:
WAV service
Task 2. 7 External Stakeholder Coordination Meetings
City and Consultant will together identify key external stakeholders relevant to or interested in the service (i.e., Santa Clara Valley Transportation Authority, neighboring cities of Cupertino in the western portion of Santa Clara County, City of San Jose, Sunnyvale, etc.) and setup meetings in advance of the Launch Date in order to gather data and local information relevant to the project, build community support, and identify opportunities to support multi-modal linkages. This initiative will be spearheaded by the City so as to best utilize local relations, with significant involvement provided by Contractor.
Deliverables:
Participation in external stakeholder meetings Meeting agendas & notes Task 3. Deployment & Operations
The Consultant will collaborate with the City of Cupertino to design and operate a service that meets the project's operational goals. Consultant will establish a project team in the area and will draw on expertise in Operations, Expansion, Growth and Data Science teams in order to grow and optimize the service across the 422
CC 03-07-2023
422 of 773
duration of the project. Consultant will proactively suggest enhancements to the service to improve rider experience, quality of service, and cost per ride. Consultant shall procure all required licenses, permits, and insurance to operate an on- demand rideshare solution in the City of Cupertino.
Task 3.1 Launch Period & Launch Event
A launch event will be held on the Launch Date to raise awareness of the service locally and initiate formal marketing and media outreach.
Deliverables
Coordination and Completion of Launch Event, including appropriate marketing and media outreach.
Operation of Service Launch
Task 3.2 Full Service Launch, Operations & Maintenance
The Consultant shall operate the Full Service for the duration of the service, unless otherwise mutually agreed upon by the Consultant and City. Following Launch, the Consultant shall continue to operate, maintain, and evaluate system data and service information to optimize, iterate on, and scale the service in collaboration with the City.
Deliverables:
Ongoing operations
Task 4. Marketing Plan & Implementation Task 4.1 Draft & Final Marketing Plan Consultants shall work closely with the City to develop and refine a unified marketing and promotional program that increases community awareness of the Program, and maximizes its success for implementation by Consultant. As reasonable, the City will cooperate with Consultant to promote the service and create local awareness and will support the Consultant's team by providing useful local insights and leveraging existing marketing platforms, associations, and social media presence to promote the program. Marketing and branding guidelines, including initial marketing material templates, will be presented by the Consultant to the City for review and approval in advance of finalization and distribution.
Consultant and City shall collaborate on the following key marketing activities during the course of the Program:
Initial collateral and branding development
New custom app build and campaign to move existing riders from Via app to custom app Vehicle wrapping/branding design
Launch press and media campaign
Rider acquisition campaigns
Ongoing promotional campaigns
Partnership with key City stakeholders and community organizations Deliverables:
Final Marketing Plan, including branding guidelines
Task 4.2 Production of Marketing Collateral
Per the Marketing Plan developed in Task 4.1, marketing and branding guidelines, including initial marketing material templates, will be presented by the Consultant to the City for review ahead of finalization, production, and distribution.
Deliverables:
Marketing Collateral
Task 4.3 Implement Marketing Plan
423
CC 03-07-2023
423 of 773
Based on the agreed upon Marketing Plan developed in Task 4.1, Consultant shall work closely with the City to implement a range of marketing and promotional subtasks, including the City offering free or discounted rides.
Deliverables:
Implementation of Marketing Plan
Task 5. Performance Monitoring & Data Sharing
Deliverables:
Ongoing regular data sharing and reporting.
STANDARD REPORTING SET
Dashboard Data I Graphs provided
Top Level SeNice
Operations Metrics • Total ride requests: the total number of attempts by riders Key service metrics to book a ride (or delivery) from an origin to a destination. filterable by time period • Requests during service hours: "Total ride requests" made during seNice hours.
• Met Demand: the total number of Ride Requests that
received a ride proposal.
• Met Demand Rate: 'Met Demand' out of 'Total ride
requests,' as a percentage.
• Completed rides: the total number of riders (including additional passengers) successfully transported.
• Completed Rides Rate: 'Completed Rides' out of 'Total ride requests,' as a percentage.
• Utilization: the average number of passengers transported per vehicle per hour.
SeNice Operations Metrics
Graphs • Met Demand: total number of Ride Requests broken out Graphs/visualization of key by met demand and rides unable to fulfill. metrics by day, week, • Detailed Ride Requests Status: A detailed breakdown of month, or specific days of the outcome for each Ride Request (e.g., completed, the week cancelled, no show) • Utilization: the average number of passengers transported per hour by day
Rider Experience Top Level Metrics
Snapshot of quality of • Average Ride Duration: average time in minutes from service and rider pickup to dropoff (displayed for completed rides only). experience • Average Ride Rating: average ride rating provided by riders (out of 5 stars).
• Average Pickup Walking Distance: walking distance from the origin requested by the rider to the actual pickup
location assigned.
424
CC 03-07-2023
424 of 773
Data Generator: Ride
Request Table
Detailed table of eve,y ride
request made for the
service
• Pickup Time Scheduled vs. Actual: the average
difference in minutes between the scheduled pickup time and the actual pickup time.
Rider Experience Graphs (filterable by day, week, month) • Average Ride Duration
• Average Ride Distance
• Average Ride Rating
• Average Pickup Walking Distance
Data Columns in Table
• Request Creation Date
• Request Creation Time
• Request ID
• Request Status
• Rider ID
• Wheelchair Accessible
• Number of Passengers
• Origin Address
• Origin Latitude
• Origin Longitude
• Destination Address
• Destination Lat
• Destination Lng
• Ride Price
• Ride Distance
• Ride Duration (min)
425
CC 03-07-2023
425 of 773
Via Cupertino Service Area Map
Phase I will begin in spring 2023, including the existing 11.4 square mile Cupertino zone as well as the adjacent 9.0 square mile Santa Clara zone to the east/northeast. Phase II will be implemented in spring 2026, when the service further expands north to an additional 6.4 square miles, as shown in the gray zone below.
MONTA LOMA
ltos
)
I
:IJ_g,San
ton.Le
1ty, .~arl<- , ipen.:~- --
9 1
..... ~::::::::-...... B -~ - Sunnyvale
~
• V C
e Home Depot :,
pen Space - -
'
~
I'
ORTH SAN JOSI
Norman
Y. Mineta
·~an Jose
co Wholesale International.
'
---::
~ uc,ar ,,,,
seun
fu!!E_ank
'
1r- - Fruitdale
I
wEsT slN JOSE Whole Foods Market / it The Home Depolo~,, WILL< II ,,Campbe~1))
426
CC 03-07-2023
426 of 773
Time Period
;
Exhibit B
Schedule of Performance
Deliverable
Spring 2023 j Update rider app to include new Santa Clara zone ···································································r····················································································· ····················· ······················································· Spring 2023 : Support Cupertino and Santa Clara in rebranding and marketing new i service
Spring 2023 I Set up additional reporting in Via Operations Center, as needed ··································································:················································································································································· ······················ Spring 2023 j Convert vehicle fleet to fully electric vehicles ·································································t····································································································································································· ·· Spring 2023 : Launch service in new Santa Clara zone (8.5 sq mile zone) ····································································~·············· .. ,· .. · .. · ... , ............................................................................................... , ............................................... .
Spring 2023 j Launch service for Mountain View Caltrain Station and El Camino : Hospital
Spring/Summer 2024 I Add Clipper Card integration into rider app ························································· .. ········:················· ·· ······················· .............................................................................................................................. ..
Spring/Summer 2024 : Procure additional electric vehicles, as needed ····························· .. ····································:································-···-····················· .................................................................................................................. .
Spring/Summer 2025 j Procure additional electric vehicles, as needed ··················· ··············································:······························ ............................................................................................................................................. .
Spring/Summer 2026 i Expand Santa Clara zone, from 8.5 sq mile to 15.4 sq mile zone 427
CC 03-07-2023
427 of 773
Fixed
(Upfront)
Costs
Total
Upfront
Cost
Project
Managemen
t & Other
Operations*
Driver Pay
(Incl.
WAV)
Customer
Service
Total Cost
per Driver
Hour
Total Notto-Exceed
Cost
Year 1
Price
per
Driver Total
Hour Price
NIA $300,000
$300,000
$1,371,60
$43 .72 2
$1,397,01
$44.53 3
$5.62 $176,313
$2,944,92
$93.87 8
$3,244,92
8 Exhibit C
Fees
Year 2 Year3
Price Price
per per
Driver Total Driver Total
Hour Price Hour Price
NIA $41,300 NIA $35,000
$41,300 $35,000
$1,829,83 $1,964,56
$48.61 8 $52.19 0
$1,709,00 $1,828,67
$45.40 4 $48.58 1
$6.01 $226,236 $6.43 $242,041
$100.0 $3,765,07 $4,035,27
2 8 $107.20 2
$3,806,37 $4,070,27
8 2
Year4
Price
per
Driver Total
Hour Price
NIA $80,100
$80,100
$54.70 $2,745,112
$52.59 $2,639,222
$6.88 $345,272
$114.1
7 $5,729,605
$5,809,705
Note: Pricing excludes all taxes and assumes service hours of7am-7pm M-F and 9am-5pm Sat. * Includes IT hosting, technology access, operations support, and other miscellaneous costs.
Driver Hours
Summary:
Total Implied Driver 31,372 37,643 37,642 50,185
Hours
Total Implied Driver
Hours (Weekly) 603 724 724 965
Service Hours
Summary:
Total Implied 3,588 3,588 3,588 3,588
Service Hours
Total Implied
Service Hours
(Weekly) 69 69 69 69
Total All 4
Years
Total Price
$456,400
$456,400
$7,911,112
$7,573,910
$989,862
$16,474,88
3 $16,931,28
3 156,843
754
14,352
69 428
CC 03-07-2023
428 of 773
EXHIBITD
Insurance Requirements
Nomad Transit, LLC - On-Demand Community Shuttle
Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptabletoCity.
INSURANCE POLICIES AND MINIMUMS REQUIRED
I. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $5,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occunence limit. a It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance pol icy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Fonn CG 20 01 (04/13).
c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set fo1ih in this Contract.
Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect City as a named insured. 2 Automobile Liability: ISO CA 0001 covering any auto (including owned, hired, and non-owned autos) with limits no less than $5,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease.
4. Sexual Abuse/Molestation: Insurance or the equivalent as required for activities/services involving minors, (i.e., after school activities, recreational programs, athletics, study/training events and transportation of minors). Coverage may be included under General Liability or be obtained in a separate policy, such as Educators Legal Liability (ELL) policy, with a limit of no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this contract or be twice the required occurrence limit.
5. Cyber Liability: Insurance with limits not less than $5,000,000 per occurrence I $5,000,000 aggregate.
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Consultant in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network securny. L ne po11cy sna11 proviae coverage ror breach respu11;:,c; co-st as Exh. D-lnsurance Requirements
1 429
CC 03-07-2023
429 of 773
well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:
Additional Insured Status
The City of Cupe1tino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds") are to be covered as additional insureds on all insurance coverages required by this Agreement. General Liability coverage can be provided in the fotm of an endorsement to Consultant's insurance (at least as broad as ISO Form CG 20 10 (l l/ 85) or both CG 20 10 and CG 20 37 fotms, iflater editions are used).
Primary Coverage
Coverage afforded to City/Additional Insureds shall be prima1y insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it.
Notice of Cancellation
Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums.
Waiver of Subrogation
Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductible or self-insured retention above $100,000 must be declared to and approved by the City.
At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/ Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City.
Acceptability of Insurers
Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better.
Verification of Coverage
Consultant must furnish acceptable insurance certificates and mandatory endorsements ( or copies of the policies effecting the coverage required by this Agreement), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term.
Subcontractors
Consultant shall require and verify that all subcontractors maintain CGL, Automobile Liability, Sexual Abuse and Molestation, and Workers' Compensation and Employer Liability (if applicable) insurance that meet the requirements of this Agreement, including naming the City as an additional insured on subcontractors' insurance policies.
Exh. D-lnsurance Requirements 2
430
CC 03-07-2023
430 of 773
Higher Insurance Limits
If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant.
Adequacy of Coverage
City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. 11401131
Exh. D-lnsurance Requirements
3 431
CC 03-07-2023
431 of 773
Agreement with Nomad Transit, LLC (Via)
Final Audit Report 2023-02-27
Created: 2023-02-27
By: Julia Kins! [email protected])
Status:
Transaction ID:
Signed
CBJCHBCAABAAMWEJ-qNwWhDqHNWHvaliWDQXug2qNBgo
"Agreement with Nomad Transit, LLC (Via)" History
t:l Document created by Julia Kinst [email protected]) 2023-02-27 - 5:14:13 PM GMT- IP address: 216.198.111.214 ~ Document emailed to Erin Abrams ([email protected]) for signature 2023-02-27 - 7:15:55 PM GMT
t:l Email viewed by Erin Abrams ([email protected])
2023-02-27 - 7:17:13 PM GMT- IP address: 104.28.55.233
@o Document e-signed by Erin Abrams ([email protected]) Signature Date: 2023-02-27- 7:17:39 PM GMT-Time Source: server- IP address: 141 .155.158.108 G Agreement completed.
2023-02-27 - 7:17:39 PM GMT
I Poweredby
Adobe
~vmTiNo Acrobat Sign
432
CC 03-07-2023
432 of 773
433
CC 03-07-2023
433 of 773
Attachment B
RESOLUTION NO. ________
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
AUTHORIZING THE EXECUTION OF A MASTER AGREEMENT AND
PROGRAM SUPPLEMENTS FOR A STATE-FUNDED TRANSIT PROJECT
WHEREAS, the City of Cupertino may receive state funding from the California Department of Transportation (Department) now or sometime in the future for transit projects; and
WHEREAS, substantial revisions were made to the programming and funding process for the transportation projects programmed in the Transit and Intercity Rail Capital Program, by Chapter 36 (SB 862) of the Statutes of 2014; and WHEREAS, the statutes related to state-funded transit projects require a local or regional implementing agency to execute an agreement with the Department before it can be reimbursed for project expenditures; and WHEREAS, the Department utilizes Master Agreements for State-Funded Transit Projects, along with associated Program Supplements, for the purpose of administering and reimbursing state transit funds to local agencies; and WHEREAS, the City of Cupertino wishes to delegate authorization to execute these agreements and any amendments thereto to the City Manager, or their designee.
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby find that the fund recipient agrees to comply with all conditions and requirements set forth in this agreement and applicable statutes, regulations, and guidelines for all state-funded transit projects.
NOW THEREFORE, BE IT FURTHER RESOLVED that the City Manager or their designee be authorized to execute the Master Agreement and all Program Supplements for State-Funded Transit Projects and any Amendments thereto with the California Department of Transportation. 434
CC 03-07-2023
434 of 773
Resolution No. __________________
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7
th day of March, 2023 by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
435
CC 03-07-2023
435 of 773
Attachment C
RESOLUTION NO. 23-_____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AMENDING THE OPERATING BUDGET FOR FISCAL
YEAR 2022-23 BY APPROPRIATING, TRANSFERRING, AND
UNAPPROPRIATING MONIES FOR SPECIFIED FUNDS
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 regular meeting of the City Council of the City of Cupertino this 7th day of March 2023, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
________
Hung Wei, Mayor
________________________
Date
436
CC 03-07-2023
436 of 773
Resolution No. __________________
City of Cupertino
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
437
CC 03-07-2023
437 of 773
Resolution No. __________________
EXHIBIT A
Appropriation
Amendment by Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
(Use of)
General Fund $3,594,928 $ 2,312,011 $(1,282,917)
Special Revenue Fund $ - $ - $ -
Capital Projects Funds $ - $ - $ -
Enterprise Fund $ - $ - $ -
Internal Service Fund $ - $ - $ -
Total Appropriation
Amendment All Funds
$3,594,928 $ - 2,312,011 $1,282,917
438
CC 03-07-2023
438 of 773
CITY COUNCIL STAFF REPORT
Meeting: September 20, 2022
Subject
Consider accepting State grant funding for the Via On-Demand Shuttle Pilot Program and extending the contract with Nomad Transit, LLP to operate Via Shuttle Pilot Program.
Recommended Action
1. Accept grant funding for the Via Shuttle Pilot Program from the California State Transportation Agency’s (CalSTA) Transit & Intercity Rail Capital Program (TIRCP) grant in the amount of $8,465,000.
2. Authorize the City Manager to execute an amendment to the Professional/ Consulting Services Agreement with Nomad Transit, LLC for the Via OnDemand Shuttle Pilot Program (Attachment A), increasing the previous not to exceed amount by $200,000 and extending the term to June 30, 2023.
3. Adopt Resolution No. 22-XXX (Attachment B) to approve a budget modification (number 2223-231) increasing appropriations in the General Fund, Traffic Engineering Program (100-88-844) by $200,000, for a revised not-to-exceed amount of $1,950,000 for the Via Shuttle Pilot Program.
4. Find that the use of formal competitive bidding procedures is not practicable for the Cupertino-Santa Clara TIRCP shuttle program and direct the City Manager to dispense with City bidding requirements pursuant to the Cupertino Municipal Code § 3.22.060.
Background
The Via-Cupertino Community Shuttle program launched as a pilot program on October 29, 2019, with the goal of attracting motorists to a sustainable and affordable transportation option. This program has been and continues to be a City Work Program item. Since the launch of the program, 25,836 total trips have been made over 22 months of operation, with an average ride approval rating of 4.9 stars (out of five,) and an average wait time of ten minutes. Despite a 13-month long pause due to COVID-19 and resulting delays in local employer return-to-work plans, ridership has grown steadily Attachment D
439
CC 03-07-2023
439 of 773
since the October 2021 re-launch. In August, the service reached the highest ridership level since resuming service with 2,012 rides.
Detailed ridership data and charts are included as Attachment C.
Via-Cupertino Chronological Timeline:
June 2019 - $1.75M approved by Council to fund Via-Cupertino program August 2019 - Agreement with Nomad Transit (Via) approved by Council October 2019 - Via-Cupertino service began at the end of the month February 2020 – Record ridership registered, nearly 4,000 monthly trips March 2020 - COVID shelter-in-place orders issued by Santa Clara County August 2020 - Suspension Order approved temporarily pausing Via service July 2021 - Contract Amendment approved extending contract October 2021 - Via-Cupertino re-launched with enhanced health measures The Via-Cupertino Pilot Program was initially envisioned as an 18-month pilot program.
However, the service launched and operated for only four months before the COVID-19 pandemic led the program to an abrupt drop in ridership. Once it was clear the pandemic was going to continue, the service was paused for a period of 13 months resuming in October 2021. By the contract expiration in October 2022, the service will have operated for 24 total months, with two launch periods as a result of the pandemic.
Since the relaunch on October 19, 2021, ridership has grown steadily and is currently at its highest point since the pandemic began, with 2,012 rides in August. Sunnyvale Caltrain and local schools remain the most popular destinations, with ridership to local businesses and health clinics increasing. Since relaunch, ridership has grown steadily every month with the exception of July 2022, which experienced a small dip in ridership.
This dip was anticipated and is experienced in all of Via cities because of school and summer vacation schedules. In Cupertino, the dip was less pronounced due to a summer sale, which temporarily lowered the fare to $2 for all riders. As employers continue to bring more employees into the workplace this fall, Via anticipates ridership to grow steadily in the fall and winter.
Cost To Operate Via-Cupertino
A month-by-month summary of the cost to operate Via has been included as Attachment D. During the pilot program the most efficient month to operate Via was in February 2020, when ridership was at its peak pre-COVID-19. In that month, $7,765.48 was collected in fare revenues and the program counted 3,951 rides, resulting in an average per trip subsidy of $16.04. For comparison purposes, the Los Angeles Metro Mobility on Demand program (operated by Via) had an average subsidy per ride of $18.81. During February 2020 the utilization rate, which measures the average number of rides per driver hour, reached an average of 2.5, with some days reaching as high as 3.4. The cost to operate Via has decreased continually since the relaunch because as ridership builds, the efficiency and overall cost decreases as operating costs are shared across multiple passengers.
440
CC 03-07-2023
440 of 773
Budget Update
The Via-Cupertino On-Demand Community Shuttle program is currently on budget, with allocated funding anticipated to last beyond the end of the contract on October 31.
It is estimated that an additional $200,000 will be necessary to continue Via operations from October to April 2023. The proposed contract extension to June 2023 includes additional months as a precautionary measure. It is anticipated that a new agreement with Nomad Transit, LLC (Via) for the five-year TIRCP program will be executed before April 2023.
Survey Data
Several surveys were conducted at various points during the pilot program and consistently showed strong community support for Via-Cupertino, as well as appeal across a wide range of users.
A 2021 survey of 150 individuals highlighted various reasons for using the service:
- Work commuting 28%
- Daily errands 28%
- Healthcare appointments 20%
- Travel to/from school 20%
The survey also showed 68% of respondents were 'somewhat disappointed' or 'very disappointed' when Via Cupertino suspended services due to COVID-19 and 53% reported the use of a personal car for transportation when Via service was paused.
The service has succeeded in connecting Cupertino residents to transit options, in particular the Sunnyvale Caltrain station, where 13% of all rides have either originated or ended. Of the 70 individuals responding to the 2022 rider survey, 33% identified “connecting to other forms of public transit” as their most frequent use of Via Cupertino.
Together, these data points indicate that the pilot program has been successful in reducing Vehicle Miles Traveled (VMT) and greenhouse gas (GHG) emissions, while increasing the use of other public transit options.
Discussion
In March 2022, the City successfully applied for a CalSTA grant in partnership with the City of Santa Clara for a significant expansion of the Via-Cupertino service. CalSTA awarded Cupertino $8,465,000 to continue Via services for a period of five years beginning in April 2023, along with the following improvements:
• Phased electrification of the fleet
• Phased expansion of service into the City of Santa Clara (Attachment E) • Addition of El Camino Hospital and Mountain View Caltrain as new destinations
Execution of a Master Agreement with Caltrans is a requirement of the TIRCP program because it enables CalSTA to transfer funds to the City for any grant-funded projects. 441
CC 03-07-2023
441 of 773
This agreement will be in effect for a period of 10 years and will be a part of a future Council action.
Via Contract Amendment
The contract amendment with Via proposes to extend the expiration date between the City of Cupertino and Nomad Transit, LLC (Via) from its current expiration of October 31 to June 2, 2023. This extension will ensure there is no service disruption before the TIRCP-supported service begins by April 2023. It also provides two extra months in the contract to cover any unforeseen delays related to grant administration or adoption of a replacement contract with Via.
Leading up to the expanded program launch in April 2023, Cupertino staff and City of Santa Clara staff will bring the following to each City Council for consideration:
• Funding agreement between the City of Santa Clara and Cupertino for grant administration.
• A new agreement with Nomad Transit, LLC (Via) to replace the current agreement for the 5-year TIRCP service (Cupertino only.) • A funding request to budget for the 5-year program, of which 50% is estimated to be offset by TIRCP funds (Cupertino and City of Santa Clara.) Sole-Source with Nomad Transit, LLC (Via)
Although staff had initially considered a competitive selection process as a next step at the end of the pilot program, several factors have led to a change in this approach. First, the City’s TIRCP application was written with Via as a named partner and was approved by CalSTA as an expansion of the existing Via program. Via’s technical assistance in modelling the service was an important element of the grant application and greatly contributed to the strength of the application. Second, an area where Cupertino’s application scored highly was in project readiness. The State and Caltrans, who are administering the grant, were eager to quickly dispense funds to projects to address the climate crisis. Should the City select a different vendor through a procurement process, the project would become a new project and the City’s TIRCP application would need to be amended. This would delay the implementation of the extended program and could result in the grant funding being rescinded. Finally, selecting a different vendor would require significant additional planning and outreach costs, as the City has already invested heavily to bring public awareness to its Via branded service.
Importantly, Via has met or exceeded expectations during the entirety of the pilot program. When operational issues have arisen during the pilot Via has responded quickly and professionally. Additionally, surveys conducted throughout the pilot have shown a high level of community satisfaction in the drivers and the program overall.
Staff has met informally with other micro transit vendors over the course of the pilot program. Few alternative vendors exist that provide driver training, vehicles, technology, and vehicle maintenance in one seamless program. For these reasons staff recommends that Council authorize the City Manager to dispense with City bidding 442
CC 03-07-2023
442 of 773
requirements pursuant to the Cupertino Municipal Code § 3.22.060 for the TIRCP expansion of Via-Cupertino.
Potential Future Expansion with the Cities of San José and Sunnyvale The City of San José City Council recently adopted a Transportation Plan that includes a micro transit strategy and gives San José Transportation staff direction to pursue a program. The TIRCP program will re-open in fall 2022, and CalSTA has expressed strong interest in seeing surrounding communities join Cupertino as part of this program. If awarded, a portion of west San José would be added to the service zone and phased in. The TIRCP will re-open in fall 2022 and announcements will be made later in the year.
The City of Sunnyvale will be launching a small micro transit program in Peery Park in collaboration with the Santa Clara Valley Transportation Authority (VTA.) While currently not participating in the Via-Cupertino expansion, Sunnyvale staff indicated that this may be an option in the future.
Sustainability Impact
The electrification and expansion of the Via-Cupertino on-demand ride sharing program will significantly reduce the amount of VMT generated by the program. It will amplify the GHG reductions already achieved by the program and will continue to reduce local roadway congestion as the service scales up and reaches more destinations. The expanded service will add two new Caltrain stations, one of which offers convenient Baby Bullet service to San Francisco and has been frequently requested by riders in surveys. The new fleet vehicles have yet to be identified, but they will be electric vehicles and the transition will begin by April 2023.
Fiscal Impact
Via-Cupertino was approved as part of the Fiscal Year (FY) 2019-20 Budget at a cost of $1.75 million for the entirety of the pilot program (Traffic Engineering budget unit,) special project account 100-88-844 750-061. Due to COVID-19 and a 13-month pause in service, including ridership impacts experienced because of COVID-19, the project funding has outlasted the initial allocation. It is anticipated that extending the service agreement from the current expiration of October to June 2023 will require $200,000 in additional funds, increasing the not-to-exceed amount of the agreement to $1,950,000. As noted above, a Resolution for the budget allocation has been included as Attachment B.
Staff will return to Council at a future date to make a funding request for the TIRCP program. The TIRCP grant is paid in monthly reimbursements, and as a result, the funding request will be made for the full project total, of which 50% will be reimbursed by CalSTA during the five-year project period. The $16,931,283 application included the cost to operate in the City of Santa Clara, which will be paid for by the City of Santa Clara. The cost to operate in Cupertino is $8,465,642 over five years, or approximately $1,693,128 per year, of which 50% will be covered by the TIRCP grant. City staff will continue to look for additional grant funds to offset the City’s costs. It is anticipated that 443
CC 03-07-2023
443 of 773
VTA Measure B Innovative Transit fund will open late 2023 or early 2024 and is a potential source of additional revenue. If no additional sources of revenue are identified, the continuing cost of the program would be funded from the General Fund.
Next Steps
Staff will return at a future meeting to discuss the TIRCP grant supported service in greater detail, along with a request for the budget allocation for the program along with a proposed funding agreement between the City of Cupertino and the City of Santa Clara.
_____________________________________
Prepared by: Chris Corrao, Senior Transit and Transportation Planner Reviewed by: Matt Morley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Contract Amendment with Via
B – Draft Resolution
C – Pilot Program Ridership Statistics
D – Via Pilot Invoice Summary
E – TIRCP Expansion Map
444
CC 03-07-2023
444 of 773
DocuSign Envelope ID: 214EF8A6-D5E2-4DD2-8D67-A4A024450286 February 6, 2023
Qv1a
Nomad Transit LLC
A wholly-owned subsidiary of Via Transportation Inc.
10 Crosby Street, Floor 2
New York, NY, 10013
To the City of Cupertino and the City of Santa Clara:
Via has proudly operated a microtransit service in partnership with the City of Cupertino, named Via-Cupertino, since it began as a pilot program in October 2019. In March 2022, Via provided technical assistance to Cupertino staff in preparing a Transit & Intercity Rail Capital Program (TIRCP) grant application to the California State Transportation Agency (CalSTA). The application and original project design laid out a five-year microtransit program that included an expansion of the existing Via-Cupertino service into Santa Clara and the conversion to a fully electric fleet.
The proposal submitted nearly a year ago relied on ridership data in 2021 alongside commute projections in a post-COVID world. New data gathered since March 2022 and what we know about the world today has required us to update the service design.
More specifically, our submission in March 2022 was rooted in ridership data that showed lower usage of microtransit, and projected a future in which people would slowly return to work some days of the week but would no longer require employees to be in the office every day. Apple set and reset return to work dates throughout the spring and summer (and are still not requiring 5 days/week); De Anza community college courses were fully or partly remote until fall 2022.
Throughout the past year, the Via and Cupertino partnership adjusted to these ever-changing conditions, most notably through rider outreach efforts, marketing campaigns, and fare adjustments. As a result, ridership growth in the Cupertino service post-Covid leveled off as other services did, but then, August of 2022, rose faster than other services. Cupertino and Via's marketing efforts, alongside clearer return to work and school policies, advancements in healthcare and vaccinations, and pent-up public demand to get out of the house--effectively brought ridership back to pre-COVID levels faster than anticipated (see charts below). As we enter into 2023, the data shows Via to serve a loyal and growing ridership base.
Via Transportation - 10 Crosby Street - New York, NY 10013 Attachment E
445
CC 03-07-2023
445 of 773
DocuSign Envelope ID: 214EF8A6-D5E2-4DD2-BD67-A4A0244502B6 Via Cupertino Monthly Ridership - Oct 2021 to Jan 2023
5000
4000
TIRCP
~ 534 rrides submission
t!: 3000 per month
j ~
Q)
00 C
~ ~
0.. "' 2000 "' >
> 1049 £
C
0 1000 ~
0 :::l .... N .... N M .,. Ill "' .... OJ
';' .... 9 0 9 9 9 0
~ 9 .:. .... .:. N ,:. N N N ,:. N N N N N N N N N N N N 0 0 0 0 0 0 0 0 0 0 0 N N N N N N N N N N N a,
9 N
N
0 N
Continued
monthly growth
2799 2892
0 .... N
';' .... .... N ,:. ,:. N N N 0 0 0 N N N
3148
....
9 M
N
0 N
As the chart above shows, at the time of submission, monthly ridership from the four preceding months averaged fewer than 550 rides. Most recently, in January 2023, Via Cupertino served more than 3,1 00 rides. This growth exceeded expectations, and significantly outpaced the growth seen in Via's other city services in California. As seen below, Via-Cupertino's first significant spike in ridership occurred in March 2022, at the time of the TIRCP submission. A subsequent spike occurred in August, when monthly ridership jumped 78%, compared to less than 35% in other Via services in California. As seen in the charts, ridership continues to grow, but at lower rates, signaling a more stable demand pattern in the months ahead.
Monthly Percentage Change in Rides - Cupertino (Jan 2022 to Jan 2023) e Cupertino • • Via CA Svc 1 • • Via CA Svc 2 • • Via CA Svc 3 100.0%
78.2%
75.0%
~
" :g 50.0% 0:
.5
g,
I;
-= 25.0% u
:E
0 :E
d1
0.0%
-25.0%
9 N "' cli "' "' ..... 00 ~ ~ N 9 9 9 9 9 c;: 9 N N N ~ N N N N N ~ ,.:, N "' N ~ N .... N N N N N N N
i'i i'i 0 ~ 0 0 C 0 ~ isl ~ 0 N N N N N N
Via Transportation - 10 Crosby Street- New York, NY 10013 446
CC 03-07-2023
446 of 773
DocuSign Envelope ID: 214EF8A6-D5E2-4DD2-BD67-A4A0244502B6 While this is very positive news, it means that as we expand into the City of Santa Clara and parts of Mountain View, our service may struggle to meet demand without a significant addition of weekly van hours. We are currently running Via-Cupertino (red zone below) with ~350 weekly van hours. The TIRCP grant in its current form as a 5-year program would only enable us to put around 50 incremental weekly van hours on the road in year 1, which we do not project will be enough to serve a geographic area ~2x as large with additional transit connection use cases.
G6 @)
@
Mountain @ €ID ltos View
Saa
Onto
tty Part
ApnaBazarf CUUTAPARK
'I
Sunnyvale
~G T
WUTUNJOS1i
99 Ranch Market
\ @) G
\
Co: HIANJC
orman
Minet,
JOSI
atfon
Burbank
Fruitdale
@
Whole Foods Market f wu
I '
Focus on Accessibility
[ Poiots of Interests
[ Key Areas of Low Accessibility j
r -:: ! SB 535 Disadvantaged Zone
,--,
\. _ J High Poverty Zone*
r: ! Low Public Transit Utilization•
~: ~ High Senior Population•
r:: ! Long Commute (>60 Mins)'
Campbell • Bas@ on Re.mix data, as of 2019.
Cupertino zone population: 64,800
Santa Clara zone population: 111,600
Total zone population: 176,400
Our goal is to launch service this spring in a way that allows us to retain high quality of service levels (low wait times, efficient trips) for residents in Cupertino, and to introduce a service that can immediately accommodate riders in Santa Clara. After discussing our service design proposal with Santa Clara, we agreed that a compressed four-year project schedule would better help us meet our goal. More specifically, this change would allow us to increase driver hours and vehicle supply over four years, while serving the same number of trips envisioned in the original application. The $16,931,283 budget and estimated GHG reduction of76,000 MTCO2e would remain unchanged.
If the change from a five to four-year structure is approved, we will have ~600 weekly van hours at our disposal--a ~ 70% increase in hours compared to the ~15% increase currently afforded by the five-year structure. This increase sufficiently prepares the service to meet large spikes in demand from Santa Clara, similar to the increases seen in Cupertino throughout 2022. At the same time, if such a dramatic increase does not occur in Santa Clara, Via will adjust supply to meet actual demand, and unused vehicle hours will be rolled over to subsequent service months. Please also note that Via will only invoice the city for actual vehicle hours deployed. In total, Via feels confident that this level of incremental hours will position the expanded service for success from the start, and allow the service to flexibly meet demand.
Via Transportation - 10 Crosby Street - New York, NY 10013 447
CC 03-07-2023
447 of 773
DocuSign Envelope ID: 214EF8A6-D5E2-4DD2-BD67-A4A024450286 In our updated budget, you may also notice that the vehicle hourly rate has increased from $91.10, as submitted in the TIRCP application, to $93.87. The reason for this change is the higher than anticipated cost of electric wheelchair accessible vehicles. At the time of grant application submission, the market lacked high-quality wheelchair accessible electric options, so the original proposal made approximate estimates of the cost of these vehicles. We have since identified wheelchair accessible electric vehicles that will safely and comfortably transport priority populations that require this service.
Via's operations team will continue to make data-driven decisions on when and how many van hours to put on the road each week. This means only deploying the vehicles needed to meet demand at any given time- reducing supply during off-peak hours and scaling up during times of anticipated high demand, such as peak commute hours. Supply and demand trends will be discussed frequently between the Via, Cupertino, and Santa Clara project teams, with the goal of increasing utilization (trips per vehicle hours) and passenger aggregation as the zone expands and demand continues to grow.
If you have any questions or would like to discuss further, please don't hesitate to contact me at your convenience.
Sincerely,
r~
~E~Vdi~21
Manager
Nomad Transit LLC
Co-Chief Operating Officer
Via Transportation Inc.
Via Transportation - 10 Crosby Street - New York, NY 10013 448
CC 03-07-2023
448 of 773
Budget Item Year 1 Year 2 Year 3 Year 4 TOTAL
Vehicle
Hours/Vehicle/Week 69 69 69 69
Actual/Max Hours on
Road 87% 87% 87% 87%
Cost/Vehicle Hour
$93.87 $100.02 $107.20 $114.17
Price increase YOY
7% 7% 7%
Total # of Vehicles
10 12 12 16
Fixed Costs (includes
Clipper Card Integration
in Year 1) $300,000 $41,300 $35,000 $80,100 $456,400
TOTAL Project Cost $3,244,928 $3,806,378 $4,070,272 $5,809,705 $16,931,283 Cost Share
TIRCP $1,622,464 $1,903,189 $2,035,136 $2,904,211 $8,465,000 Cupertino $932,917 $1,094,334 $1,170,203 $1,260,876 $4,458,330 Santa Clara $689,547 $808,855 $864,933 $1,644,618 $4,007,953 Attachment F
449
CC 03-07-2023
449 of 773
CITY OF CUPERTINO
Agenda Item
22-11600 Agenda Date: 3/7/2023
Agenda #: 10.
Subject: Consider a contract with Placeworks for the remainder of Housing Element Adopt Resolution No. 23-037 to complete the Sixth-Cycle General Plan Housing Element Update, authorizing the City Manager to execute a consultant agreement with Placeworks, and approving Budget Modification #2223-263 for the Sixth-Cycle General Plan Housing Element Update for the Fiscal Year 2022-23
CITY OF CUPERTINO Page 1 of 1 Printed on 3/1/2023
powered by Legistar™450
CC 03-07-2023
450 of 773
CITY COUNCIL STAFF REPORT
Meeting: March 7, 2023
Subject
Consider awarding a consultant agreement to PlaceWorks to complete the 6th-Cycle General Plan Housing Element update, related rezoning and land use amendments, and all necessary environmental review as required under State law, and associated budget modification.
Recommended Action
1. Authorize the City Manager to execute a consultant agreement with PlaceWorks for an amount not to exceed $1,096,757 to complete the 6th-Cycle General Plan Housing Element update, related rezoning and land use amendments, and all necessary environmental review as required under State law (Attachment B);
2. Approve Resolution No. ___ for Budget Modification #2223-262 to increase appropriations in Special Projects CWP RHNA and Gen Plan Update GL 100-71-702 750-101 of the adopted FY 2022-23 budget by $617,868 for the 6th-Cycle General Plan Housing Element Update, related rezoning and land use amendments, public noticing, legal counsel, and all necessary environmental review as required under State law for the fiscal year 2022-23.
Reasons for Recommendation
1. Award Professional Contract with PlaceWorks
The City began its Housing Element update process in mid-2021, with staff performing community outreach about the upcoming process. On September 21, 2021, the City entered into a services agreement with EMC Planning Group (EMC) to prepare and complete the Housing Element update in accordance with State law and California Housing and Community Development Department’s (HCD) guidance.
The update process was initiated in mid-2021 in order to meet the HCD Housing Element certification deadline of January 31, 2023, which all Bay Area cities and counties were required to meet. Beginning in October 2021 and continuing over the course of the next year EMC and staff held over 20 public meetings with the City 451
CC 03-07-2023
451 of 773
Council, the Planning Commission, the Housing Commission and the ad hoc Community Engagement Plan-Strategic Advisory Committee regarding the Housing Element update. In addition, four community meetings on the Housing Element update were held between December 2021 and September 2022. In conjunction with the public meetings an extensive community outreach process was also undertaken.
Due to the number of public meetings and focus on outreach, however, work on the updated Housing Element fell significantly behind schedule and the City decided to terminate its agreement with EMC in October 2022.
Since the termination of the EMC contract, staff has continued to manage the Housing Element update and, as required by State law, released the Draft Housing Element for public review on November 18, 2022. Since the release of the Draft Housing Element staff has been supported by PlaceWorks under a limited-scope contract. On February 3, 2023, the Draft Housing Element was sent to HCD, beginning HCD’s 90-day review process. At this crucial phase of the process, it is essential for the City to continue its work with PlaceWorks to complete the Housing Element update.
PlaceWorks has demonstrated expertise successfully managing Housing Element updates throughout California, particularly for the current, more complicated 6thCycle update, and has provided high-quality work product for the City on planning and environmental issues in recent years. Their familiarity with Cupertino and the Housing Element update process makes PlaceWorks uniquely qualified to manage the project through to completion. Notably, PlaceWorks has already successfully assisted the Cities of Alameda and Emeryville in obtaining HCD-certified Housing Elements during the 6th-Cycle. It is especially vital that the City not delay getting PlaceWorks under contract given the time constraint the City faces in having to complete both the Housing Element update and all necessary zoning changes by January 31, 2024, in order to be in compliance with State law and avoid penalties, such as the loss of State funding, and potentially being subject to measures such as the builders’ remedy.
PlaceWorks scope of services includes the following:
Preparation of a revised draft and final Housing Element to be adopted by the City and certified by HCD;
Support of City staff in preparation for public meetings, though City staff will act in a lead capacity during public meetings;
Consultation and coordination with HCD staff;
Community education and engagement;
Zoning and other land use changes necessary to implement the updated Housing Element;
Necessary environmental review, such as preparation of an Environmental Impact Report (EIR);
452
CC 03-07-2023
452 of 773
Updating the Safety and Land Use Elements of the General Plan, as required by State law concurrent with a Housing Element update.
Since the contract amount exceeds $200,000, City Council approval is required to authorize the City Manager to execute the contract (see Attachment C). As a professional services contract, the award of the contract is exempt from competitive bidding requirements pursuant to Municipal Code section 3.22.070(D).
2. Approve Budget Modification #2223-262
The City’s contract with EMC had a budget of $748,040, $487,445 of which was expended, leaving $260,595 of their original budget unspent. EMC’s scope of work focused primarily on providing an update to the Housing Element itself and performing the necessary CEQA analysis to adopt the Houisng Element, but it was not as comprehensive as PlaceWorks proposed scopes of work, which include rezoning and related land use amendments and a more thorough CEQA scope of work based on the likelihood of significant rezoning being necessary to implement the updated Housing Element.
At present there is a remaining balance of $593,889 for the Housing Element update, referred to in the FY 2022-23 Budget as “Special Projects CWP RHNA and Gen Plan Update GL 100-71-702 750-101).” PlaceWorks has submitted two scopes of work (Attachment B) with a total budget of $1,096,757. The first scope of work, focused exclusively on the preparation of the Housing Element itself, has a budget of $233,315.
The second scope of work encompasses a range of planning, land use and environmental review tasks that are necessary to adopt the Housing Element and enable it to be implemented. This second scope of work has a budget, including a 15% contingency, of $863,442. Therefore, in order approve the service agreement with PlaceWorks, and have PlaceWorks complete the tasks identified in their scopes of work, an additional $502,868 would need to be appropriated to the Housing Element update budget. The Fiscal Impact section, below, discusses additional estimated costs related to legal review and noticing that are also being requested, which raises the total requested appropriation to $617,868.
Sustainability Impact
No sustainability impact.
Fiscal Impact
The City has a remaining budget of $593,889 for the 6
th Cycle Housing Element update as
part of the FY 2022-23 Adopted Budget 100-71-702 750-101. However, the proposal (see Attachment B) and associated project expense estimates exceed the existing project budget; staff therefore requests Budget Modification No. 2223-262 to increase project appropriations in 100-71-702 750-101 by $617,868 to account for the estimated consultant costs, project noticing (e.g., citywide postcards, legal ads, or similar noticing for 453
CC 03-07-2023
453 of 773
additional community outreach) and legal review fees. No project contingency beyond the 15% contingency included in PlaceWorks scope of work is requested at this time.
Table A, below, lists the current remaining project budget and estimated expenses and the differences that will need to be added to the budget to cover estimated costs.
Additional appropriations will be funded from the unassigned fund balance in the General Fund that was estimated at $63.1 million as of the FY 2022-23 Mid-Year Financial Report.
It is also important to note that in 2021 the City was awarded $300,000 in Local Early Action Program (LEAP) grant funds from HCD and $52,613 in Regional Early Impact Planning (REAP) non-competitive grant funds from the Association of Bay Area Governments (ABAG)/Metropolitan Transportation Commission (MTC) for assistance with the preparation of the 6
th-Cycle Housing Element, for a total of $352,613. The City is expecting full reimbursement of the LEAP and REAP funds in next few months based on the work already completed on the Housing Element update. All work relating to the LEAP and REAP funding must be completed by September 30, 2023. Therefore, it is recommended that the Council record the revenues from the two grants that have been awarded.
Table A
Consultant (PlaceWorks) Contract $1,096,757
Estimated noticing: newspaper legal ads, postcards
and postage
$15,000
Estimated legal review costs; litigation $100,000
Total estimated remaining Consultant, noticing and
legal costs
$1,211,757
Current Budget (100-71-702 750-101) $593,889
Requested Appropriation $617,868
Upon authorization from the Council, the City Manager will execute the contract and the consultant will be authorized to commence the activities outlined in their scope of work to prepare a compliant Housing Element.
California Environmental Quality Act
CEQA review will be completed prior to the adoption of the Housing Element.
Prepared by: Luke Connolly, Acting Director of Community Development 454
CC 03-07-2023
454 of 773
Piu Ghosh, Planning Manager
Reviewed by: Christopher Jensen, City Attorney
Approved by: Pamela Wu, City Manager
Attachments:
A - Draft Resolution
B - Scopes of Work and Fee Estimates
C – Service Agreement
455
CC 03-07-2023
455 of 773
RESOLUTION NO. 23-___
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
TO COMPLETE THE SIXTH-CYCLE GENERAL PLAN HOUSING ELEMENT
UPDATE, AUTHORIZING THE CITY MANAGER TO EXECUTE A
CONSULTANT AGREEMENT WITH PLACEWORKS, AND APPROVING
BUDGET MODIFICATION #2223-263 FOR THE SIXTH-CYCLE GENERAL PLAN HOUSING ELEMENT UPDATE FOR THE FISCAL YEAR 2022-23. ________________________________________________________________________ ____________________________________________________________________ WHEREAS, the Housing Element of the General Plan is required to be updated every eight years per California State Law; and WHEREAS, staff is requesting Budget Modification #2223-262 to increase appropriations in 100-71-702 750-101 by $617,868 for the 6 th Cycle General Plan
Housing Element Update, related rezoning and land use amendments, public noticing, legal counsel, and all necessary environmental review as required under State law for the fiscal year 2022-23.
1. NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve Budget Modification #2223-262 to increase appropriations in 100-71- 702 750-101 by $617,868 for the 6th-Cycle General Plan Housing Element Update, related rezoning and land use amendments, public noticing, legal counsel, and all necessary environmental review as required under State law for the fiscal year 2022-23.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7
th day of March, 2023, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
456
CC 03-07-2023
456 of 773
Resolution No. 23-XXX
SIGNED:
________________________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________________________
Kirsten Squarcia, City Clerk
________________________
Date
457
CC 03-07-2023
457 of 773
DATE February 14, 2023
TO: City of Cupertino
CONTACT: Pamela Wu, City Manager
FROM: Charlie Knox, Tammy Seale, and Terri McCracken
CC: Luke Connolly, Acting Director of Community Development SUBJECT: City of Cupertino – General Plan 2040 and Zoning Code Amendments, and Subsequent EIR Please accept the attached submittal as PlaceWorks’ proposal to prepare the updates to the City of Cupertino General Plan 2040, also known as the Community Vision 2015-2040, Health and Safety Element and Land Use and Community Character Element, and Zoning Code for consistency with City’s 6th Cycle Housing Element, together referred to as the proposed project, and the associated Subsequent Environmental Impact Report (SEIR) to the General Plan Amendment, Housing Element Update, and associated Rezoning Project EIR that was certified by the Cupertino City Council in December 2014 and the subsequent addenda to the EIR.1 The SEIR will address impacts from all components of the proposed project.
Charlie Knox, Principal, and Erika Lindstrom, Associate, will lead the updates to the Mobility and Land Use and Community Design Elements, and Zoning Code to implement the City’s 6th Cycle Housing Element update. Tammy Seale, Principal, and Eli Krispi, Senior Associate, will lead the update to the Health and Safety Element. Terri McCracken, Associate Principal, and Jacqueline Protsman Rohr, Associate, will lead the preparation of the Subsequent EIR. Terri and Jacqueline will serve as the day-to-day contacts throughout the course of the preparation of these documents.
This proposal shall remain valid for a period of 120 days from the time of submittal. I am authorized to bind PlaceWorks to the contents of this proposal. Please don’t hesitate to contact me if you need more information. We look forward to the prospect of working with you.
Sincerely,
PLACEWORKS
Charlie Knox
Principal
2040 Bancroft Way, Suite 400
Berkeley, CA 95704
510.848.3815 | [email protected]
1 City of Cupertino, certified General Plan Amendment, Housing Element Update, and Associated Rezoning EIR, (December 2014) State Clearinghouse Number 2014032007, and approved Addenda (October 2015, July 2019, August 2019, December 2019, October 2021).
458
CC 03-07-2023
458 of 773
2 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR
SCOPE OF SERVICES
Project Initiation, Management, and Coordination
1.1 Project Kick-off
PlaceWorks together with Fehr & Peers will participate in a kick-off meeting with the City staff that focuses on the program components that will be evaluated in the Subsequent EIR (SEIR), and the SEIR itself. The kick-off meeting will allow for a review of project goals, communication protocols, project schedule, work plan, data needs, status of current and planned efforts that are relevant to the project, confirmation of the Health and Safety Element template, and the proposed approach to staff and community engagement. This meeting will establish the project management procedures, including invoicing terms and communication protocols, and data collection approach. We will also discuss how recent work completed for the Climate Action Plan
2.0 and ongoing work for the Santa Clara County Multi-Jurisdictional Hazard Mitigation Plan can be integrated into the Health and Safety Element update and can further inform the update.
Task 1.1 Deliverables:
− Kick-off meeting agenda, data needs list, and meeting minutes (electronic copies). − Agenda and notes for subsequent calls with staff (electronic copies).
1.2 Project Management and Coordination
Our project management team includes Charlie Knox, Principal, for the Mobility and Community Design and Land Use Elements, and Zoning Code updates; Tammy Seale, Principal, for the Safety Element update; and Terri McCracken, Associate Principal, for the EIR. Erika Lindstrom, Associate, Eli Krispi, Senior Associate, and Jacqueline Protsman Rohr, Associate, will serve as the Project Managers for the listed project components, respectively. Terri and Jacqueline will serve as the day-to-day contacts for overall project management and will oversee the coordination of the regular status conference calls. Terri will also be responsible for overseeing the budget and schedule throughout the preparation of the EIR. Jacqueline will be responsible for overall team coordination throughout the preparation of the SEIR. In addition, PlaceWorks’ project team will:
Reallocate any remaining funds to other tasks within the scope when tasks are completed under budget.
Send all draft documents through quality control in advance of submitting to the City for review.
Keep an update to date schedule of the project
PlaceWorks will coordinate with City staff to schedule project status meetings on a routine basis.
We offer meeting flexibility to match project needs by conducting a mix of phone and web-based check-in meetings as appropriate to the task. Prior to each meeting, we will work with staff to draft an agenda, determine the most appropriate format, and identify the necessary participants.
We recommend and have scoped for semimonthly meetings. The length of each meeting will vary depending on the phase and the agenda, but for the purposes of this scope of work, we have assumed up to 22 meetings averaging one hour each. The status meetings would be in addition 459
CC 03-07-2023
459 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 3 to regular email and phone communication between project team members. Staff from Fehr & Peers will join up to 12 conference calls.
Task 1.2 Deliverables:
− Monthly Project Management
− Up to 22 semimonthly Status Meeting Agendas and Summaries (electronic copies). − Agenda and notes for subsequent calls with staff (electronic copies).
1.3 Data Collection
The PlaceWorks team will review all relevant documents pertaining to the proposed project for baseline information to be included in the SEIR, as well as existing conditions for the Safety Element. This review will include the General Plan: Community Vision 2015-2040 and the associated EIR, Zoning Code, the Standard Environmental Conditions of Approval, 2017 Santa Clara County Operational Area Hazard Mitigation Plan (HMP), and 2019 Emergency Operations Plan, among others. The PlaceWorks team will conduct independent research, conduct field studies, and contact public service providers to ensure the CEQA document contains the most up-to-date information, as needed to inform the environmental analysis.
Task 1.4 Deliverables:
− List of data needs for the CEQA document and Health and Safety Element (electronic copies).
1.4 Administrative Record
During the course of the project, the PlaceWorks team will be mindful of record keeping for the purpose of building the administrative record for the SEIR. At the completion of the SEIR, PlaceWorks will compile all documents in the administrative record and electronically submit them to the City.
Task 1.5 Deliverables:
− Draft and Final Administrative Record in Excel to the City at the completion of the project Health and Safety Element Update
The Health and Safety Element serves as Cupertino’s comprehensive strategy to reduce the risks posed by natural and human-caused hazards to community health and safety. The regulatory framework and the realities of hazards and emergency conditions have evolved in the past decade. Safety elements are now required to include more information about flood and wildfire risks and responses, to include increased analyses of evacuation issues, and to comprehensively address the short-term and long-term threats posed by climate change.
The PlaceWorks team will prepare an updated Health and Safety Element that complies with all applicable State laws to protect public health, safety, and welfare. Our approach to this update is to address key issues related to natural and environmental hazards in Cupertino while being responsive to the requirements of the California Government Code and State agencies. 460
CC 03-07-2023
460 of 773
4 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR We will streamline the element by creating policies that address multiple issues of concern and provide multiple benefits. Although many of the public safety and climate adaptation and resiliency goals and policies have an obvious home in the Health and Safety Element, achievement of the goals and implementation of policies requires a cross-sector approach.
2.1 Community Outreach and Engagement
Community outreach and engagement in the update of the Health and Safety Element will be integrated with outreach and engagement for the Zoning Code update since the project components will be updated on the same schedule and have community-wide benefits and considerations.
Community Engagement Support
We understand community outreach and engagement will be led by City staff. To support staff’s efforts, the PlaceWorks team will provide content related to the Safety Element update for use in presentations during community workshops or study sessions and in City communications, including the website, newsletters, and social media posts.
Planning Commission and City Council Study Sessions (Optional) As an optional task, the PlaceWorks team will support staff with presentations to and discussions in up to two study sessions with the Planning Commission and/or City Council, as requested by staff. We assume study sessions will focus on the review and discussion of the Public Review Draft version of the Health and Safety Element, with a meeting of the Planning Commission and City Council for each.
Community Workshops (Optional)
As an optional task, PlaceWorks can assist with in-person and/or virtual workshops to support the Health and Safety Element update. These workshops may involve presentations and interactive online exercises that inform, engage, and support collaboration and community building community while providing essential guidance and input to the project team. PlaceWorks has extensive experience with online community engagement, specifically hosting workshops or webinars using Zoom and engaging online tools; as well as in-person workshop using strategies such as small group discussions and open-house style meetings. Our approach to workshops can include small group discussions, an open‐house, or listening session approach, depending on the needs of the project and preferences of the community. For up to two events, PlaceWorks can prepare an event approach, digital flyer, participant guide, facilitator guide, training, event facilitation and logistics, and post‐event summaries as desired by City staff. Cost per workshop depends on the necessary materials and the number of PlaceWorks staff attending the workshop, if any. Our budget assumes participation of four PlaceWorks staff in each workshop, whether it is virtual or in person. PlaceWorks assumes that City staff would promote the community workshop through the project website, social media, and other means. We can provide additional materials and staff, or support additional workshops, for an additional cost. 461
CC 03-07-2023
461 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 5 Task 2.1 Deliverables:
− Health and Safety Element related content (text and supporting graphics) for use on the City’s website, in other communications, and in staff presentations or reports to provide updates and information on the Element update and process. − Optional Study Sessions
o Attendance of PlaceWorks staff at two study sessions. If meetings are in-person, the PlaceWorks project manager will attend for the PlaceWorks team. o Draft/Final presentation (electronic: PowerPoint and PDF) − Optional Virtual Community Workshops
o Attendance of up to four PlaceWorks staff at up to two community meetings. o Hosting of up to two virtual trainings total (one per workshop) for those helping with the workshops.
o Administrative draft and final workshop materials (event approach, digital flyer, PowerPoint, participant guide, facilitation guide, post event summary, etc.).
2.2 Background Report and Vulnerability Assessment
Existing Plan Review
The PlaceWorks team will review the existing Health and Safety Element for consistency with general plan requirements as codified in California Government Code Section 65302(g), as updated by SB 1241, 379, 1035, and 99, among others. The team will review the existing Health and Safety Element and identify existing content that should be updated in addition to new content that should be added to comply with State law. We will identify any gaps in the existing Health and Safety Element, including those created by recent changes to state legislation or emerging best practices.
Following review of the Health and Safety Element and identification of updated and new content required for compliance with California Government Code Section 65302(g), the PlaceWorks team will review other existing City plans, such as the 2019 Cupertino Climate Change Risk and Vulnerability Assessment, 2017 Santa Clara County Operational Area Hazard Mitigation Plan (HMP), 2019 Emergency Operations Plan, Silicon Valley 2.0, and the 2016 Santa Clara County Community Wildfire Protection Plan (CWPP), Cupertino Annex, which could be used to support compliance with Section 65302(g). We will review these plans and programs for best practices and for recent content that could be integrated into the updated Health and Safety Element.
PlaceWorks will prepare an existing plan review crosswalk, which will compare the Government Code requirements with the content in the existing Health and Safety Element, along with other hazard and adaptation planning documents, to identify gaps that can be addressed during the update process. The plan review crosswalk, provided in an Excel format, will provide recommendations on how to address regulatory gaps in the existing Health and Safety Element, either through integration of existing technical studies and analyses, policies, or other content, as well as updates of existing information, and preparation of new analyses, maps, or content.
This task will also include an assessment of current goals, policies, and programs in the Health and Safety Element, and recommendations for whether to remove, modify, or keep these policies to meet State requirements. We will identify applicable and relevant HMP mitigation strategies, CWPP programs, and other relevant strategies to address climate change and integrate climate change adaptation into goals and policies. The policy review will determine what has been 462
CC 03-07-2023
462 of 773
6 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR implemented and what is working in the city, and programs that can be added to meet the future needs of the community.
Vulnerability Assessment Update
State law requires local governments to prepare a vulnerability assessment to inform preparation of climate adaptation and resiliency goals, policies, and strategies in the Safety Elements of their General Plans. PlaceWorks understands that a Preliminary Vulnerability Assessment was prepared in June 2021, which was peer reviewed during the Climate Action Plan update in May 2021 and revised into the Adaptation Foundations and Vulnerability Assessment in March 2022.
The PlaceWorks team will update the Vulnerability Assessment to be consistent with guidance from the California Adaptation Planning Guide. In accordance with Cal-Adapt, the update will focus on ensuring consideration of an average of the four state-recommended priority climate models based on the Representative Concentration Pathway 8.5, which represents a business-asusual scenario.
The assessment will help identify issues to be addressed by the new and revised policies in the Safety Element and will be prepared in accordance with the adaptation planning process identified in the California Adaptation Planning Guide. Our team has prepared similar vulnerability assessments for dozens of communities, including the nearby cities of San Carlos and San Leandro.
Consistent with State guidance, PlaceWorks will ensure the Vulnerability Assessment includes information available from federal, state, regional, and local agencies that will assist in developing the vulnerability assessment and the adaptation policies and strategies. We will rely on the most accurate and up-to-date science on the effect of climate change, using Cal-Adapt, the California Fourth Climate Assessment, the ABAG Hazard Viewer, local studies and reports, and all other relevant sources.
PlaceWorks will prepare a list of all additional hazards, populations, and assets recommended for inclusion in the updated Vulnerability Assessment, based on the May 2021 peer review memo, our understanding of the conditions in Cupertino, recommendations from the California Adaptation Planning Guide and the California Climate Adaptation Strategy. The PlaceWorks team will use the hazards, populations, and community assets to evaluate how vulnerable the city is to climate change hazards. Preliminary recommended changes include mapping climate change hazards where data is available, considering additional vulnerable populations in the analysis, and working with City staff to confirm adaptive capacity.
These results will be translated into a quantitative vulnerability score, ranging from one (minimum vulnerability) to five (severe vulnerability). PlaceWorks will rely on the analyses completed to date, including the Preliminary Vulnerability Assessment, Cupertino Climate Change Risk and Vulnerability Assessment Peer Review Memo, and the Adaptation Foundations and Vulnerability Assessment. The results of the scoring will be integrated into the Background Report (Task 2.2.c).
Background Report
After the City staff has reviewed and provided a consolidated set of comments on the review of the existing Health and Safety Element and the Vulnerability Assessment update, the PlaceWorks 463
CC 03-07-2023
463 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 7 team will prepare a comprehensive Background Report that will provide hazard-specific information and details to meet Government Code requirements. The Background Report content will provide details on all hazards affecting the city, including geologic and seismic hazards, flooding, fire hazards, hazardous materials, and additional climate change hazards covered in the Vulnerability Assessment. Each hazard section will define the hazard and extent of the hazard, include applicable mapping of the hazard, provide an overview of historic occurrences, explain the likelihood of future occurrence, describe how climate change will affect the likelihood and severity of future occurrences, and provide implications for the Health and Safety Element update. We will also include a section on emergency preparedness and response that will cover evacuation constrained areas, agencies responsible for emergency response, and mutual-aid agreements. The Vulnerability Assessment update will be summarized in each hazard section of the Background Report and factored into the recommendations for the updates to goals, policies, and programs.
Mapping for Background Report and Safety Element
The California Government Code requires that the Safety Element includes up-to-date maps. The PlaceWorks Geographic Information System (GIS) team will prepare a comprehensive set of maps for the Health and Safety Element that will include data from the California Department of Forestry and Fire Protection (CAL FIRE), Federal Emergency Management Agency (FEMA), California Geological Survey (CGS), California Department of Water Resources (DWR), and other state or regional agencies. We will prepare a base map with community facilities and infrastructure, and once reviewed and approved by City staff, we will use the base map to create the hazard maps for the Background Report.
To meet SB 99 requirements, our GIS team will also create a map showing evacuation-constrained residential parcels based on the existing evacuation route framework in the city. The PlaceWorks team will also map evacuation routes based on the City’s Emergency Operations Plan. After City staff review and provide a consolidated set of comments, PlaceWorks will add the maps into the Final Background Report and will integrate them into the updated Safety Element.
Task 2.3 Deliverables:
− Existing Plan Review Crosswalk (electronic copy)
− Policy Review Matrix (electronic copy)
− Administrative and Final Draft memo identifying climate hazards, populations, assets, and existing adaptive capacity identified in the 2022 Adaptation Foundations and Vulnerability Assessment (electronic copies)
− Administrative and Final Vulnerability Assessment Scoring Workbook (electronic copies) − Administrative and Final Draft Background Report (electronic copies) − A set of draft PDF maps (electronic copy)
2.3 Update Health and Safety Element
The current (2015) Health and Safety Element addresses emergency preparedness and regional coordination, fire safety, public safety, hazardous materials, electromagnetic fields, geologic and seismic hazards, flood hazards in Cupertino, and the City’s noise contour maps. However, since the regulatory context for safety elements has changed since 2015, we will need to prepare a comprehensive update to comply with current California Government Code requirements. 464
CC 03-07-2023
464 of 773
8 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR Prepare Draft Goals, Policies, and Programs
The PlaceWorks team will coordinate with City staff to develop goals, policies, and implementation measures (programs or actions) for the Health and Safety Element based on the results of the Background Report and Vulnerability Assessment. We will collaborate with the City to draft goals to improve resiliency throughout the community and adapt to changing climate conditions. The goals will help provide increased protection for all populations and assets, but with particular emphasis on the populations and assets identified most at risk in the Vulnerability Assessment. These goals will also help ensure compliance with recent state requirements for flooding, wildfire, and seismic/geologic hazards.
After City staff review and confirm the goals for the updated Health and Safety Element, the PlaceWorks team will work with City staff to prepare draft policies and implementation programs that effectively address State requirements, the results of the Vulnerability Assessment, and other relevant issues to Cupertino. The topics covered by these measures may include the siting of new public facilities and the relocation of existing ones, hardening existing buildings and infrastructure systems against floods and other hazards, increasing social resiliency among disproportionately affected persons, supporting effective evacuations, coordination with other relevant agencies, and other issues as appropriate. We will preserve existing Health and Safety Element policies as appropriate, revising existing policies where necessary. PlaceWorks will provide one draft version for City staff review. We request City staff provide a consolidated set of comments in Word using tracked changes.
Administrative Draft Safety Element
After City staff review and confirm the draft goals, policies, and programs, the PlaceWorks team will prepare a formatted administrative draft Health and Safety Element. We will reference the information in the Background Report and develop brief overviews of the hazards for each section, as well as mapping to meet Government Code Section 65302(g) requirements. The Background Report can be referenced as an Appendix or Attachment to the Health and Safety Element. The Administrative Draft Health and Safety Element will include the same hazards and topic areas covered in the Background Report with the addition of goals, policies, and programs developed as part of Task 2.4.a. We recommend the updated Health and Safety Element integrate the most recent version of the Santa Clara County HMP, 2016 CWPP, and other existing plansinto the Element, ensuring increased capabilities for preventing, responding to, and mitigating future hazard events and having access to state and federal grant resources if emergencies or hazard events occur. We will provide this administrative draft to City staff for review, and we request City staff provide a consolidated set of comments in Word using tracked changes.
Public Review Draft Safety Element
After receiving a consolidated set of City staff comments on the administrative draft Health and Safety Element, PlaceWorks will prepare a revised version of the Health and Safety Element for public review and distribution. The public review version of the Health and Safety Element will be in the InDesign format of the current Community Vision 2015-2040 document. PlaceWorks will provide a strikethrough and underline, as well as a clean version of the Element. This will provide City officials, members of the public, and other interested agencies and jurisdictions the opportunity to provide input and comment on the Health and Safety Element. We will provide a 465
CC 03-07-2023
465 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 9 screencheck draft, in Word, to staff for confirmation that staff’s changes were made as requested and then provide a version for public distribution.
State Agency Review
Currently, parts of Cupertino are in a CAL FIRE-designated Very High Fire Hazard Severity Zone (VHFHSZ) in a Local Responsibility Area, which means the City is required to submit the draft Health and Safety Element for review by CAL FIRE/Board of Forestry and Fire Protection. CAL FIRE is currently updating the Local Responsibility Area mapping, and so these designations may change during this project. As applicable, we will coordinate with CAL FIRE for informal pre-review of the 2015 Health and Safety Element to identify initial recommendations on fire safety that we will incorporate into the updated element. We will submit the updated Health and Safety Element for review to CAL FIRE at the time of the public review, and will incorporate recommendations from CAL FIRE as appropriate.
We will also coordinate with the California Office of Emergency Services, OPR’s Integrated Climate Adaptation and Resiliency Program, and the Department of Conservation’s California Geological Survey as necessary and appropriate. State agency reviews should begin at least 90 days prior to the public hearings and adoption of the updated Health and Safety Element.
Task 2.4 Deliverables:
− Draft Health and Safety Element goals, policies, and programs (electronic copy) − Administrative Draft Health and Safety Element (electronic copy) − Public Review Draft Health and Safety Element (electronic copies consistent with the General Plan 2040 [see Task 2.4.c])
− CAL FIRE review matrices (electronic)
− Consultation with state agencies as applicable
− Virtual attendance at one Board of Forestry and Fire Protection meeting
2.4 Public Hearings
Public Hearing Draft and Final Safety Element
After the PlaceWorks team receives a consolidated set of comments on the Public Review Draft Health and Safety Element from the City, which will include comments from community stakeholders, and commenting state agencies, as well as recommendations CAL FIRE, we will revise the Health and Safety Element as appropriate to respond to these comments. PlaceWorks will prepare a Public Hearing Draft Health and Safety Element for City staff to take through the local adoption process and a Final Health and Safety Element after the local adoption process is completed. We will also support staff with the preparation of adoption resolutions and ensure that the resolution for adoption contains the right text to comply with AB 2140, incorporating the HMP into the Health and Safety Element.
Public Hearings
PlaceWorks will support the City through the formal review of the Health and Safety Element update by the Planning Commission and City Council. The Safety Element team will participate in up to two public hearings. Our scope and budget assume one Planning Commission hearing and one City Council hearing for adoption of the Safety Element. PlaceWorks staff will support City 466
CC 03-07-2023
466 of 773
10 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR staff with the preparation of required staff reports and PowerPoint presentations and be prepared to lead or support presentation of the project during each hearing. City staff will be responsible for all required public noticing and production of any printed materials for each meeting. PlaceWorks can support additional meetings on a time-and-materials basis at the request of City staff.
Task 2.5 Deliverables:
− Public Hearing Draft Health and Safety Element (electronic copy) − Final Health and Safety Element (electronic copy)
− Content for the City resolution to support integration with the HMP − Support with Planning Commission and City Council staff reports and presentations − In-person presentation to Planning Commission
− In-person presentation to City Council
Mobility and Land Use and Community Character
Elements, and Zoning Code Updates
PlaceWorks Principal Charlie Knox and Associate Erika Lindstrom will lead an update to the Mobility and Land Use and Community Character Elements, and Zoning Code to implement the City’s 6th Cycle Housing Element update. The Zoning Code update will demonstrate consistency with the new Housing Element to the California Department of Housing and Community Development. PlaceWorks will review the existing Land Use and Community Character Element and Zoning Code to determine the required updates to be consistent with the Housing Element update. After this review, PlaceWorks will meet with City staff to discuss any gaps in the Land Use and Community Character Element and Zoning Code, as well as determine any additional components that should be considered in the Zoning Code update. Changes to City standards and regulations necessary to implement the actions of the Housing Element are anticipated to include parcel-specific rezoning and may include targeted updates to one or more City-adopted Specific Plans. The proposed Mobility Element update would reflect changes in the standard method of measuring transportation impacts from level of service to vehicle miles traveled.
The updates will thoughtfully and meaningfully engage the Planning Commission, City Council, and Cupertino community in assigning appropriate levels of increased density in the neighborhoods identified for the addition of new housing. PlaceWorks anticipates two community-wide open houses (one to solicit input on initial rezoning ideas and one to present draft zoning changes for comment), three focus group meetings (with housing developers, housing advocates, and partner agencies), and presentations at up to two Planning Commission and two City Council meetings. PlaceWorks will prepare the outreach materials for each engagement component, including event approaches, PowerPoints, digital flyers, agendas, group meeting questions, among others. The proposed scope of work includes providing summaries (in Word and PDF format) after each of the outreach events.
The Land Use and Community Character Element and Zoning Code updates will be structured to expedite the approval and construction of housing, especially below market rate housing, and will include site development standards to ensure neighborhood compatibility and the provision of important amenities for current and new city residents. Once the revisions to the Mobility and Land Use and Community Character Elements are confirmed, PlaceWorks will update the 467
CC 03-07-2023
467 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 11 InDesign file of the element in strikethrough and underline to show the recommended changes.
The approval of the Zoning Code update and Land Use and Community Character Element update will coincide with the approval of the Housing Element and Health and Safety Element updates following the City Council certification of the Subsequent EIR.
Task 3 Deliverables:
− Community open house, focus group, and City meeting materials (electronic copies) − Community open house, focus group, and City meeting summaries (electronic copies) − Administrative, Screencheck, and Public Draft zoning text (electronic copies) − Administrative, Screencheck, and Public Draft Land Use and Community Character Element revisions (electronic copies)
SEIR Scoping
PlaceWorks Associate Principal Terri McCracken and Associate Jacqueline Protsman Rohr will lead the preparation of the Subsequent EIR. The Subsequent EIR approach will use the approved General Plan as the baseline and evaluate the incremental increase in housing and population related to the Housing Element Update.
4.1 Notice of Preparation
PlaceWorks will draft a Notice of Preparation (NOP) that will include a brief project description and a description of the topics to be analyzed in the EIR. The NOP will be prepared pursuant to CEQA Guidelines Section 15082. PlaceWorks will work with the City to prepare a master distribution list for the NOP. PlaceWorks staff will be responsible for circulation to the State Clearinghouse and for mailings to local and regional agencies. PlaceWorks will assist with submitting the NOP to the Santa Clara County Clerk, but it is assumed the City staff will take care of any in-person postings with the Clerk.
Task 4.1 Deliverables:
− Administrative and Public Draft NOP (electronic copies).
4.2 Scoping Meeting
During the 30-day comment period for the NOP, PlaceWorks staff will participate in a public scoping meeting to hear comments on the suggested environmental issues to be addressed in the EIR. PlaceWorks will prepare supporting material as needed, including PowerPoint presentations, comment cards, and sign-in sheets for the scoping. Terri McCracken, joined by one other PlaceWorks staff member, will facilitate the CEQA portion of the scoping meeting. The scoping meeting is assumed to be a maximum of 2 hours. Our scope of work does not include the services of a court reporter for the scoping meeting, but we can arrange to have this service provided at the request and cost of the City.
Task 4.2 Deliverables:
− Scoping meeting materials (e.g., brief presentation (electronic), and comment cards, sign-in sheets (hard copies if in person)
− Scoping meetings comment summary (electronic copies)
468
CC 03-07-2023
468 of 773
12 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR
4.3 Tribal Consultation Support
PlaceWorks will contact the Native American Heritage Commission (NAHC) concurrent with the preparation of the NOP (Task 4.1), regarding the potential presence of burials and sacred lands in the project area and vicinity, and for a listing of Native American individuals and/or organizations that may have interest in the proposed project or have knowledge of cultural resources on or near the city. PlaceWorks will draft letters to the list of entities that the NAHC provides for submittal by the City to notify them of the proposed project. PlaceWorks will document any correspondence resulting from the outreach effort during the 30-day comment period and assist the City, if consultation from one of the tribes is requested. PlaceWorks will work with City staff to integrate language and/or maps, as necessary, of any sensitive areas and appropriate mitigation measures into the EIR. Our scope of work assumes that a representative from the City will initiate and participate in the consultation process.
Task 4.2 Deliverables:
− Administrative and Final Draft outreach letters to NAHC-identified tribes in Word and PDF files to the City (electronic copies)
SEIR Project Description
PlaceWorks will draft a project description to include a detailed buildout projections table to clearly demonstrate to the reader the buildout potential for the horizon of the Housing Element compared to what is approved under the current General Plan. The project description will be organized to clearly describe all components of the proposed project at the appropriate level of detail to facilitate future tiering from the SEIR.
Task 5 Deliverables:
− Administrative and Final Draft Project Description (electronic copies) Environmental Analysis
6.1 Draft Subsequent EIR
Administrative Draft Subsequent EIR
The PlaceWorks’ team will prepare the technical analysis that will include appropriate mitigation and/or improvement measures as necessary for each environmental topic not scoped out as part of the NOP process, which at this time is anticipated to be agricultural and mineral resources.
If it is determined an evaluation of alternatives is necessary, PlaceWorks will prepare the alternatives evaluation for up to two alternatives including the No Project alternative. The evaluation of alternatives will be at a qualitative level. Based on this analysis, the Environmentally Superior Alternative will be identified pursuant to the CEQA Guidelines. PlaceWorks will also prepare the appropriate conclusions to fulfill CEQA requirements by providing an assessment of unavoidable significant environmental impacts; significant irreversible environmental changes; relationship between local short-term uses of the environment and long-term productivity; cumulative impacts; and effects found not to be significant. 469
CC 03-07-2023
469 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 13 Air Quality and Greenhouse Gas Emissions Analysis
PlaceWorks will prepare an air quality, GHG emissions, and community risk and hazards analysis to evaluate impacts associated with the proposed project. The analysis will be prepared in accordance with the Bay Area Air Quality Management District’s (BAAQMD) CEQA Guidelines, which are in the process of being updated by BAAQMD. The approach outlined below is based on BAAQMD’s May 2017 CEQA Guidelines for a Program-Level analyses and their GHG Justification Report (2022). The technical information will be summarized in the Draft EIR and modeling data will be included as an appendix. Mitigation measures to reduce emissions will be incorporated, as necessary, to reduce project impacts.
Criteria Air Pollutants and GHG Emissions. The proposed project would intensify housing development within the city, potentially resulting in an increase in regional criteria air pollutant and GHG emissions from transportation, energy, area (i.e., landscape fuel, aerosols, etc.), water/wastewater use, refrigerants, and solid waste disposal. PlaceWorks will model the net increase in regional emissions associated with the RHNA identified in the Housing Element. The transportation sector emissions will be based on daily trips provided by the traffic engineer. Modeling will be conducted using the latest version of the California Emissions Estimator Model (CalEEMod) and emissions will be compared to BAAQMD’s significance criteria. Construction emissions will be addressed qualitative in this programlevel EIR. Project Consistency with Plans Adopted to Reduce GHG Emissions. The GHG section will discuss the GHG reduction goals, including Senate Bill 32 (SB 32), Assembly Bill 1279, and SB 375. The California Air Resources Board has adopted the 2022 Climate Change Scoping Plan Update to achieve the SB 32 reduction target and the carbon neutrality goals first established under Executive Order B-55-18. In addition, the Association of Bay Area Governments (ABAG)/Metropolitan Transportation Commission (MTC) has adopted a regional transportation plan/sustainable communities strategy to ensure that the Bay Area can attain the regional transportation-related GHG reduction goals of SB 375. In addition the City recently adopted a Climate Action Plan 2.0 (CAP 2.0). The GHG analysis will include a consistency evaluation of the project with these applicable state, regional, and local plans adopted for the purpose of reducing GHG emissions.
Air Quality Management Plan Consistency, CO Hotspots, and Odors. The San Francisco Bay Area Air Basin is in non-attainment for particulate matter and for ozone. Consistency with BAAQMD’s air quality management plan to attain the federal and state ambient air quality standards will also be discussed in the EIR. The project is not anticipated to generate enough traffic to warrant a detailed carbon monoxide hotspot analysis or generate substantial odors; therefore, a detailed analysis compared to BAAQMD’s carbon monoxide thresholds and odor impacts is not necessary and impacts would be handled qualitatively based on BAAQMD’s CEQA Guidelines screening analysis.
Noise Analysis
PlaceWorks will prepare the noise and vibration technical analyses for the proposed project. The primary source of noise in the City is traffic on major arterials and highways, and local roadways.
PlaceWorks will identify major sources of noise in the City and document baseline noise levels based on data collected for the previous General Plan and CEQA documents available. The results of this analysis will be summarized in the EIR and modeling will be provided in an appendix. No noise monitoring is proposed.
470
CC 03-07-2023
470 of 773
14 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR Transportation Noise. The project is anticipated to affect future traffic volumes. Therefore, PlaceWorks will model traffic noise using a version of the U.S. Federal Highway Administration (FHWA) Traffic Noise Prediction Model. Baseline noise from aircraft overflights at the San Jose International Airport will also be updated as needed using available data. No detailed modeling of airport noise is proposed. Stationary Noise. Noise impacts from non-transportation sources will be evaluated on a programmatic level, qualitatively based on local noise standards. PlaceWorks will analyze noise impacts from non-transportation sources (e.g., heating, ventilation, and air conditioning units) in terms of potential impacts to nearby noise-sensitive receptors and the noise limitations identified within the City’s Municipal Code. Construction Noise and Vibration. PlaceWorks will provide a qualitative analysis for potential construction impacts associated with buildout of the Housing Element sites. Future noise and vibration effects from construction activities will be discussed in terms of accepted standards from the U.S. Federal Transit Administration (FTA) and the City’s Municipal Code. Feasible mitigation measures will be identified to minimize noise and vibration impacts associated with buildout of the Plan.
Transportation Impact Analysis
Consistent with Senate Bill (SB) 743 and the latest CEQA Statute & Guidelines, the City of Cupertino adopted a set of VMT methods and procedures to apply to land use projects in the City in March 2021. The City of Cupertino Transportation Study Guidelines (May 2021) provide the desired approach for evaluating the transportation effects of this project on the City’s transportation system and services.
The VMT assessment will determine potential VMT impacts of the proposed project. The proposed project is a housing element that would not meet the City’s size-based or specific land use exemption VMT screening criteria. Therefore, a comprehensive VMT analysis is needed to determine the proposed project’s VMT impacts and mitigation. Except for the VMT under Baseline Conditions and policy summary, Fehr & Peers will not prepare an update to the Existing Conditions summary from the General Plan Amendment, Housing Element Update, and Associated Rezoning Draft EIR (2015). Fehr & Peers’ approach is outlined below. Policy Summary. Fehr & Peers will summarize the City of Cupertino and other jurisdiction plans, programs, and policies, which will be used for the Plan Conflict Evaluation listed below. VMT Modeling. Fehr & Peers have will assume use of the latest Santa Clara Valley Transportation Authority (VTA) travel forecasting model as-is. This travel model will supersede the City travel model used for the General Plan environmental review and the VTA travel model used for the VMT threshold setting. Fehr & Peers anticipates up to 72 hours of staff time to prepare the land use inputs for the City of Cupertino VMT forecasts. Fehr & Peers will prepare total VMT rates, and boundary VMT estimates using the methods per the City of Cupertino Transportation Study Guidelines. Fehr & Peers will prepare VMT estimates for the following scenarios:
Scenario 1: Baseline Conditions
Scenario 2: Baseline with Project Conditions
Scenario 3: Cumulative Conditions
Scenario 4: Cumulative with Project Conditions
471
CC 03-07-2023
471 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 15 City staff will need to define the Baseline Conditions and Cumulative Condition years for this project. If needed the base year (2015) and future year (2040) VMT values from the VTA travel model will be interpolated to develop the desired study year. The total VMT per service population threshold will be derived from the Baseline Conditions VMT forecasts. While the boundary VMT threshold will be derived from the Cumulative Conditions VMT forecast. Transportation Impact Analysis. Once City staff approves the VMT forecasts and VMT thresholds, the environmental analysis portion of the transportation analysis will proceed.
The proposed project’s consistency with relevant transportation programs, plans, ordinances, or policies will be qualitatively evaluated by mode of travel – transit and carpool system, roadway system, bicycle system, and pedestrian system. The evaluation will consider the proposed projects direct and indirect effects on baseline transportation services and facilities, planned services and facilities, and physical and operational transportation outcomes of the project compared to relevant transportation policies.
Fehr & Peers will compare the estimated project generated VMT and project’s effects on VMT by specific geographic scale (e.g., County-level) against the threshold of significance. If impacts are identified, mitigations for those impacts will be described and qualitatively evaluated. Fehr & Peers will analyze whether the proposed mitigation measures would reduce or eliminate the significant impacts resulting from the project’s implementation. The proposed project is not including transportation improvements; therefore, an assessment of induced automobile travel will not be conducted.
Should there be potential impacts, Fehr & Peers will identify policies and programs to reduce the severity or address the project’s direct or indirect impact. Fehr & Peers have included 32 hours to identify potential mitigation measures. To address CEQA requirements, Fehr & Peers will consider additional information that could affect the conclusions of the VMT impact analysis by including a qualitative discussion of the effects of emerging trends like autonomous vehicles and transportation network.
Alternatives for Environmental Review. Fehr & Peers will prepare VMT forecasts for one project alternative and provided a qualitative analysis for up to three other project alternatives. The qualitative analysis will discuss the order of magnitude and direction of the potential change in the VMT without conducting additional forecasting and be documented in the transportation analysis report.
Documentation. The results of the analysis will be documented in a transportation analysis report that will be used in the environmental review. The transportation analysis report will document all assumptions, analysis procedures, findings, impacts, and recommendations, and be supported by graphics and technical documentation in appendices. In general, the transportation section will consist of a description of the methods used, and analysis results for each scenario. If appropriate, significant transportation impacts will be identified and recommended mitigation measures documented.
The transportation analysis will be submitted to City staff for review and comment. Review comments will be incorporated into a draft transportation analysis report. Fehr & Peers’ fee estimate includes 32 staff hours to respond to comments and prepare a draft final transportation analysis report. The draft final transportation analysis report will be submitted to City staff to provide editorial comments. Fehr & Peers’ will spend up to 16 hours preparing the public draft transportation analysis report that addresses editorial comments from City staff.
472
CC 03-07-2023
472 of 773
16 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR Response to Comments on the Draft Environmental Document. Fehr & Peers has included up to 40 hours of staff time to provide response to comments on the public draft environmental impact report document.
Transportation Data for Air Quality, GHG Emissions, and Noise Analyses. All data below will be provided for Scenarios 1 through 4 previously identified and two alternatives’ scenarios.
Because the City is focused on the difference between the adopted 2015-2040 General Plan and the 2015-2040 General Plan with the updated Housing Element. These scenarios will allow the City to compare the Cumulative with Project (Alternative 1 or 2) Conditions to either the Cumulative Condition or the Baseline Condition.
As an input into the air quality, GHG emissions, and energy analysis the following items will be summarized in a table format for the PlaceWorks team:
Citywide residential population and employment
Daily project trip generation
Daily total project generated vehicle miles traveled
Daily total project generated VMT by its components of 2*internal-internal, internalexternal, and external-internal As an input into the noise analysis, the roadway counts (year 2013 roadway segment counts from the previous EIR, plus one new daily count) and forecasts will be summarized for 34 roadway segments (33 segments from the GP EIR and one new segment) in a table format.
Transportation forecasts from the VTA travel model will be used to determine the growth in traffic under Cumulative (2040) Conditions scenarios. The forecasting will account for the count year (2013), and the travel model base year (2015) and future year (2040). The study locations will include:
Sunnyvale-Saratoga Road between Fremont Avenue and Homestead Road (1 segment) De Anza Boulevard between Homestead Road and Prospect Road (5 segments) Stevens Creek Boulevard between Foothill Boulevard and I-280 (7 segments) Wolfe Road between Fremont Avenue and Stevens Creek (4 segments) Miller Avenue between Stevens Creek Boulevard and Greenwood Drive (1 segment) Homestead Road between Mary Avenue and Tantau Avenue (5 segments) Stelling Road between Homestead Road and McClellan Road (2 segments) Bollinger Road between De Anza Boulevard and Lawrence Expressway (2 segments) Lawrence Expressway between Homestead Road and Bollinger Road (2 segments) Foothill Boulevard between Stevens Creek Boulevard and I-280 (1 segment) Bubb Road between Stevens Creek Boulevard and McClellan Road (1 segment) Blaney Avenue between Homestead Road and Stevens Creek Boulevard (1 segment) Vallco Parkway between Wolfe Road and Tantau Avenue (1 segment) Tantau Avenue between Vallco Parkway and Pruneridge Avenue (1 segment) N Tantau Ave from Pruneridge Ave to Homestead Road (1 segment) N Tantau Ave from Vallco Parkway to Bollinger Road (1 segment) Stevens Creek Boulevard from Permanente Road/Private Road to Foothill Boulevard (1 segment)
Miller Avenue from Greenwood Drive to Bollinger Road (1 segment) Blaney Avenue from Stevens Creek Boulevard to Bollinger Road (1 segment) Stelling Road from McClellan Road to Prospect Road (1 segment) Foothill Boulevard from Stevens Creek to Ricardo Road (1 segment) Bubb Road from McClellan Road to Rainbow Drive (1 segment) Rainbow Drive from Bubb Road to De Anza Boulevard (1 segment) 473
CC 03-07-2023
473 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 17 Prospect Road from Stelling Road to De Anza Boulevard (1 segment) I280 from Magdalena Avenue to Lawrence Expressway (1 segment) I85 from Homestead Avenue to Prospect Road (1 segment) Homestead Road from Mary Avenue to El Sereno Avenue (1 segment) McClellan Road from Foothill Boulevard to De Anza Boulevard (1 segment) For each roadway segment the following additional information will be summarized and a figure of the roadway segment study locations will be provided:
Street functional classification (e.g., Arterial, collector, etc.) Speed limits and travel model congested speed (miles per hour) Truck percentage
As an input for the Noise Contour Mapping, Fehr & Peers will provide PlaceWorks with additional roadways segments. The raw daily roadway volumes for each roadway in Cupertino will be provided in a PDF for the four scenarios listed at the beginning of this task. These raw volumes will provide order of magnitude volumes. The raw volumes of an additional 20 roadway and freeway segments will be summarized.
Task 6.1.a Deliverables:
− Administrative Draft EIR (electronic copy)
− Administrative and Final VMT and transportation tables documenting citywide daily trip generation, citywide total VMT per service population under Baseline with Project Conditions, and the boundary VMT per service population under Cumulative without Project Conditions and Cumulative with Project. (electronic) − Administrative and Final summary table of the trip generation and VMT metrics needed for the air quality/GHG/energy analysis in the DSEIR, roadway forecasts and supporting data for the noise analysis, and a figure of the roadway segment study locations (electronic copies).
− Administrative and Final Transportation Impact Analysis Report (electronic copy) − Air Quality and Greenhouse Gas Emissions Analysis Appendix (electronic copy) − Noise Analysis Appendix (electronic copy)
Screencheck and Public Review Draft Subsequent EIR
The scope assumes a single set of consolidated electronic comments from City staff on the Administrative Draft EIR. All staff comments on the Administrative Draft EIR are assumed to be in Word track change or electronic comment. Based on City staff’s comments on the Administrative Draft EIR, PlaceWorks will prepare the Screencheck Draft EIR for City staff’s review. After City staff’s review and approval of the Screencheck Draft EIR, PlaceWorks will prepare the Public Review Draft EIR. Simultaneous with the preparation of the Public Review Draft EIR, PlaceWorks will prepare a Notice of Completion (NOC) and Notice of Availability (NOA) for City staff review and approval.
PlaceWorks staff will be responsible for submitting the Public Review Draft EIR, NOC, and NOA to the State Clearinghouse via CEQAnet. PlaceWorks will assist with submitting the NOC and NOA to the Santa Clara County Clerk, but it is assumed the City staff will take care of any in-person postings with the Clerk. Once posted, the 45-day public review period will begin.
Task 6.1.b Deliverables:
− Screencheck and Public Review Draft EIR (electronic copies) − Administrative and Final Draft NOC (electronic copies) 474
CC 03-07-2023
474 of 773
18 GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR − Administrative and Final Draft NOA (electronic copies) − Submittal to the State Clearinghouse via CEQAnet
6.2 Final EIR, Mitigation Monitoring and Reporting Program, and Statement of Overriding Considerations
Following the CEQA-required Draft EIR public review period, PlaceWorks will compile, review, and organize all comments received on the Draft EIR from the City. PlaceWorks has assumed 100 hours of staff labor for responding to public comments on the Draft EIR. PlaceWorks will prepare and submit the Administrative Draft Final EIR for review by the City. This scope assumes a single set of consolidated electronic comments from City staff on the Administrative Final EIR. All staff comments on the Administrative Final EIR are assumed to be in Word track change or electronic comment. Based on City staff’s comments on the Administrative Final EIR, PlaceWorks will prepare the Screencheck Final EIR for City staff’s review. After City staff’s review and approval of the Screencheck Final EIR, PlaceWorks will prepare the Public Draft Final EIR.
PlaceWorks will also draft the Mitigation Monitoring and Reporting Program (MMRP) for the mitigation measures included in the EIR pursuant to the City’s policies and procedures. The MMRP will reflect the appropriate scale and phase of the impacts. If any of the impact discussions are determined to have significant and unavoidable impacts, PlaceWorks will prepare a Statement of Overriding Considerations while preparing the MMRP.
Task 6.2 Deliverables:
− Administrative, Screencheck, and Public Draft Final EIR (electronic copies) − Administrative and Final Draft MMRP (electronic copies) − Administrative and Final Draft Statement of Overriding Considerations (electronic copies)
6.3 Certification and Notice of Determination
PlaceWorks will work with the City to prepare draft Findings for the EIR for review by the City Attorney and project management team. PlaceWorks will update the first draft of the findings and produce a final document, based on comments from City staff. If additional revisions to the findings are needed, it is assumed these will be completed by the City in consultation with PlaceWorks. We will participate in up to two certification hearings. PlaceWorks will prepare the Notice of Determination to be filed by the City to the County Clerk’s Office. PlaceWorks will submit the NOD to the State Clearinghouse via CEQAnet. Our scope of work does not include any filing fees required pursuant to CEQA, the County Clerk, or the California Department of Fish and Wildlife.
Task 6.3 Deliverables:
− Administrative and Final Draft Findings (electronic copies) − Administrative and Final Draft Notice of Determination (electronic copies) − Filing of the Notice of Determination with the State Clearinghouse via CEQAnet Noise Contour Map Update
As a task separate from the EIR Noise Analysis, PlaceWorks will update the Health and Safety Element’s Future Noise Contour map to reflect the proposed projects traffic noise volumes 475
CC 03-07-2023
475 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 19 throughout the city. The updated Future Noise Contour map will include major arterial roadways and freeways within the City of Cupertino based on available GIS data provided by City staff and traffic data provided by the traffic engineer.
Task 7 Deliverables:
− Administrative and Final Draft Noise Contour Map (electronic copies)
SCHEDULE
PlaceWorks proposed schedule for completion of the General Plan 2040 and Zoning Code Amendments, and Subsequent EIR is shown in Figure 1, Project Schedule. As shown in the schedule, we anticipate that the project can be completed by the end of December 2023. This schedule is contingent upon the following:
Receiving City centerline data for noise as shown on the schedule shown in Figure 1. Receipt of the VTA travel model as shown in Figure 1. Approval of all the inputs (buildout numbers) into the travel model by as shown on the schedule shown in Figure 1.
A stable City-approved EIR Project Description approved by the City by the end of Week 10 of the schedule shown in Figure 1.
No additional public meetings with ad-hoc or other bodies. Timely reviews of project deliverables by City staff (ranging between 1 to 3 weeks depending on the tasks) within the times shown in the schedule in Figure 1.
BUDGET
As shown in Table 1, Cost Estimate, the estimated cost to complete the scope of work described in this proposal is $863,442. This includes a 15 percent contingency budget. Note, reimbursable expenses are only payable to extent reimbursable expenses are actually incurred. The contingency budget will be used to cover any unforeseen out-of-scope work that might be necessary for the project and will only be used with advanced and written consent by the City.
The billing rates for each team member are included in Table 1.
PlaceWorks bills for its work on a time-and-materials basis with monthly invoices.
Assumptions
This scope of work and cost estimate assumes that:
Our cost estimate includes the meetings described in this scope of work. Additional meetings would be billed through the meeting contingency budget. All interim products will be submitted to the City of Cupertino in electronic (Word and PDF) formats and final General Plan update products will be submitted in InDesign format consistent with the current General Plan.
476
CC 03-07-2023
476 of 773
20 4. Proposed Budget GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR FIGURE 1 PROJECT SCHEDULE
February March April May June July August September October November December 2/3 2/10 2/17 2/24 3/3 3/10 3/17 3/24 3/31 4/7 4/14 4/21 4/28 5/5 5/12 5/19 5/26 6/2 6/9 6/16 6/23 6/30 7/7 7/14 7/21 7/28 8/4 8/11 8/18 8/25 9/1 9/8 9/15 9/22 9/29 10/6 10/13 10/20 10/27 11/3 11/10 11/17 11/24 12/1 12/8 12/15 12/22 12/29 *
*
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * *
* * *
* * * * * * * * * * * * * * * * * * * * *
* * * ∗
Task 3. Mobility and Land Use and Community Design Elements, and Zoning Code Update * * * * * * * * * * * * * * * * * * *
∗ ∗ ∗ ∗
2/22 3/23
*
45-day Public Review
Generate VMT/Daily Trip Numbers Prepare TIA Report
∗
∗
PlaceWorks Team
City Review
Fehr & Peers
Public and Agency Review Period
Public Hearing/Meeting *
Noise Contour Map Update
Legend
Draft EIR
Air Quality, Greenhouse Gas Emissions, and Noise Analysis Transportation Impact Assessment
Final EIR, MMRP, SOC
Certification and NOD
Task 7. Noise Contour Map Update
Notice of Preparation
30-day Public Review
Tribal Consultation Support
Task 5. SEIR Project Description
Project Description
Task 6. Environmental Analysis
Update Safety Element
Public Hearings
Project Management and Coordination
Community Engagement
Mobility, Land Use & Community Design, and Zoning Updates Task 4. EIR
Revise/Prepare Draft Housing Element
Public Hearings
Task 2. Health and Safety Element Update
Project Management
Community Outreach and Engagement
Background Report and Vulnerability Assessment
Housing Element (under a separate scope of work)
Project Management and Coordination
HCD Review (3 rounds) 1st HCD Review 2nd HCD Review 3rd HCD Review 30 day Public Review/90 day CAL FIRE Review
Scoping Meeting
Task 1. Project Management and Coordination
City Council Contract Approval
Project Kick-off Meeting
Project Management and Coordination
Data Collection
Administrative Record
477
CC 03-07-2023
477 of 773
GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR 21 TABLE 1 COST ESTIMATE
McCracken Protsman
Rohr Knox Lindstrom Seale Krispi Vermilion Garcia Fitzgerald Vang Nguyen Bush Watson Khan Guy Healey/
Miller/
Robbins
ADMIN GRAPHICS
/GIS TECH.
EDITOR
Fehr & Peers
Associate
Principal,
PIC
Associate,
Project
Manager
Principal,
Rezoning
Associate,
Rezoning
Principal,
Safety
Element
Senior
Associate,
Safety
Element
Principal
AQ/GHG
Senior
Associate
Noise
Principal
Engineer
Senior
Associate
AQ/GHG
Associate
AQ/GHG
Senior
Engineer
Senior
Associate
Project
Planner
Noise
Associate,
GIS
Project
Planner
Hourly Rate: $245 $175 $265 $170 $250 $210 $250 $195 $230 $230 $155 $200 $180 $145 $155 $135 $125 $125 $135 TASK 1. PROJECT INITIATION, MANAGEMENT, AND COMMUNICATION 1 Kick-Off Meeting 2 4 2 2 4 14 $52 $2,652 0 $0 $0 $2,652 2 Project Management and Coordination 40 62 15 30 6 12 165 $675 $34,420 0 $0 $0 $34,420 3 Data Collection 6 8 2 16 2 4 6 8 4 20 76 $270 $13,790 0 $0 $0 $13,790 4 Administrative Record 4 8 6 30 48 $145 $7,385 0 $0 $0 $7,385 Task 1. Subtotal 52 82 19 48 6 12 2 4 0 6 8 4 0 0 0 30 0 0 30 303 $1,142 $58,247 $0 $0 $0 $58,247 TASK 2. HEALTH AND SAFETY ELEMENT UPDATE
1 Community Outreach and Engagement 36 10 30 60 136 $464 $23,664 0 $0 $0 $23,664 2 Background Report and Vulnerability Assessment 32 6 16 16 90 12 24 12 208 $624 $31,834 0 $0 $0 $31,834 3 Update Safety Element 24 8 12 50 12 58 12 176 $517 $26,357 0 $0 $0 $26,357 4 Public Hearings 16 16 8 40 $145 $7,385 0 $0 $0 $7,385 Task 2. Subtotal 0 108 0 0 24 74 0 0 0 0 0 0 0 0 16 208 24 82 24 560 $1,750 $89,240 $0 $0 $0 $89,240 TASK 3. MOBILITY AND LAND USE AND COMMUNITY DESIGN ELEMENTS, AND ZONING CODE UPDATES 1 Mobility Element 8 20 12 4 44 $151 $7,711 0 $0 $0 $7,711 2 Land Use and Community Design Element 8 20 22 4 54 $176 $8,986 0 $0 $0 $8,986 3 Zoning Code Update 100 248 45 22 415 $1,572 $80,177 0 $0 $0 $80,177 Task 3 Subtotal 0 0 116 288 0 0 0 0 0 0 0 0 0 0 45 0 0 34 30 513 $1,899 $96,874 $0 $0 $0 $96,874 TASK 4. SEIR SCOPING
1 Notice of Preparation 4 6 12 1 23 $82 $4,177 0 $0 $0 $4,177 2 Scoping Meeting 10 8 6 24 $93 $4,753 0 $0 $0 $4,753
3 Tribal Consultation Support 6 8 12 26 $90 $4,580 0 $0 $0 $4,580 Task 4. Subtotal 16 16 0 0 0 4 6 0 0 0 0 0 0 0 0 30 0 0 1 73 $265 $13,510 $0 $0 $0 $13,510 TASK 5. SEIR PROJECT DESCRIPTION
1 Project Description 20 40 2 6 2 74 $265 $13,495 0 $0 $0 $13,495 Task 5. Subtotal 20 40 0 0 0 0 0 0 0 0 0 0 0 0 2 0 0 6 2 74 $265 $13,495 $0 $0 $0 $13,495 TASK 6. ENVIRONMENTAL ANALYSIS
1 Draft Subsequent EIR 118 174 0 0 4 6 25 37 48 36 104 66 42 66 2 218 0 38 74 1058 $3,707 $189,042 $211,900 $21,190 $233,090 $422,132 2 Final EIR, MMRP, & SOC 35 74 0 0 2 4 2 2 2 2 2 2 2 0 0 76 0 8 14 227 $778 $39,673 0 $0 $0 $39,673 3 Certification and NOD 8 12 4 4 8 36 $138 $7,018 0 $0 $0 $7,018 Task 6. Subtotal 161 260 4 4 16 26 27 39 50 38 106 68 44 66 2 302 0 46 88 1321 $4,623 $235,733 $211,900 $21,190 $233,090 $468,823 TASK 7. NOISE CONTOUR MAP UPDATE
1 Noise Contour Mapping 2 4 8 12 24 44 $140 $7,160 0 $0 $0 $7,160 Task 7. Subtotal 2 4 0 0 0 0 0 8 0 0 0 0 0 24 0 0 0 0 44 $140 $7,160 $0 $0 $0 $7,160 Labor Hours Total 251 510 139 340 46 116 35 51 50 44 114 72 44 66 89 570 24 168 175 2888 Labor Dollars Total $61,495 $89,250 $36,835 $57,800 $11,500 $24,360 $8,750 $9,945 $11,500 $10,120 $17,670 $14,400 $7,920 $9,570 $13,795 $76,950 $3,000 $21,000 $23,625 $10,084 $514,259 $211,900 $233,090 $747,349
EXPENSES
PlaceWorks Reimbursable Expenses $3,470
EXPENSES TOTAL $3,470
15% Contingency $112,623
GRAND TOTAL $863,442
PLACEWORKS
Sub. Total
Total Task
Budget
PlaceWorks
Hours
PlaceWorks
Total
SUB.
VMT & TIA
PlaceWorks 2%
Office Expenses
10% Sub.
Markup
478
CC 03-07-2023
478 of 773
22 4. Proposed Budget GENERAL PLAN 2040 AND ZONING CODE AMENDMENTS, AND SUBSEQUENT EIR This page intentionally left blank.
479
CC 03-07-2023
479 of 773
DATE January 26, 2023
TO: City of Cupertino
CONTACT: Pamela Wu, City Manager
FROM: Jennifer Gastelum and Cynthia Walsh
CC: Luke Connolly, Senior Planner
SUBJECT: City of Cupertino – 6th Cycle Housing Element AssistanceFull Proposal Please accept the attached submittal as PlaceWorks’ proposal to provide assistance with the City’s 6th Cycle Housing Element update.
Project Understanding
PlaceWorks understands that the City requests assistance in revising its current draft 6th-cycle housing element update for submission to the Housing and Community Development Department (HCD) in accordance with state laws, regulations, and statutes since the last housing element adoption. The current draft 6th cycle Housing Element will serve as the foundation for the 2023-2031 Housing Element update.
Approach
PlaceWorks will review the current 6th cycle Administrative Draft Housing Element and determine what is needed to achieve a complete 6th cycle Administrative Draft Housing Element for City staff to review. PlaceWorks will act as an extension of City staff and support staff through this update process. PlaceWorks will work with City staff to produce a Public Review Draft Housing Element to submit to HCD for review the first 90-day review. Our initial scope of work focuses on review of the current administrative draft, addressing deficienciesregarding new state law requirements and submitting the draft to City staff for review. The following scope does not assume PlaceWorks staff will attend any public hearings or community meetings.
PlaceWorks offers the best housing staff to complete these updates. As Principal, I will oversee the update effort. I lead the housing team and command a thorough understanding of the technical requirements of housing elements. Cynthia Walsh, Senior Associate, will be your day-to-day contacts as Project Manager. Our housing team has considerable experience working with the California Department of Housing and Community Development (HCD), having completed over 100 certified housing elements.
This proposal shall remain valid for a period of 120 days from the time of submittal. I am authorized to bind PlaceWorks to the contents of this proposal. Please don’t hesitate to contact me if you need more information. We look forward to the prospect of working with you.
Sincerely,
PLACEWORKS
Jennifer Gastelum
Principal
101 Parkshore Drive, Suite 200
Folsom, CA 95630
916.804.3910 | [email protected]
480
CC 03-07-2023
480 of 773
6TH CYCLE HOUSING ELEMENT 3. Scope of Services 1
6th Cycle Housing Element Scope of Work
Project Management and Coordination
1.1 Project Kick-off
We will prepare for and attend a virtual kick-off meeting with the City to exchange information and initiate work. At the meeting, we will:
Determine staff communication protocol.
Review and finalize the scope of work and schedule.
Task Deliverable:
− Agenda and data needs list for the kick-off meeting and notes from the meeting.
1.2 Project Management
PlaceWorks will communicate with City staff via phone and email throughout the project. In addition, PlaceWorks project manager will participate in a semimonthly virtual meeting with City staff until the draft Housing Element is submitted to HCD for review and then monthly meetings thereafter. PlaceWorks will also provide and maintain an Internet-based folder for all project materials accessible to the city and consultants.
Task Deliverable:
− Monthly progress report to agency staff.
− Ten (10) semimonthly meetings
− Six (6) monthly meetings
Housing Element Review and Organization
PlaceWorks will complete a full review of the Administrative Draft Housing Element to identify any missing data and/or deficiencies with the current draft. PlaceWorks will rely on the HCD review checklist as well as our internal Housing Element checklist to ensure all required data is incorporated. PlaceWorks also proposes reorganizing the Housing Element and Appendices to better align with HCD preferred format and to provide a better flow for the reader.
Task Deliverable:
− Administrative Draft flagged with review comments and feedback Review of the Previous Housing Element Programs (Appendix B5) PlaceWorks will review the review of previous Housing Element matrix (Appendix B5) that was prepared and provide comments to the City where additional data is needed. PlaceWorks proposes a virtual meeting to walk through the matrix together to address any missing information.
PlaceWorks will address the requirements of California Government Code Section 65588 which requires local governments to review the effectiveness of the housing element goals, policies, and related actions to meet the community’s special housing needs.
481
CC 03-07-2023
481 of 773
2 3. Scope of Services 6TH CYCLE HOUSING ELEMENT
Task Deliverable:
− One (1) meeting to review the implementation status of the previous housing element programs Housing Needs Assessment (Currently Chapter 3 and Appendix B2) PlaceWorks will review the Administrative Draft Housing Element and update to comply with Government Code Section 65583.
Task Deliverable:
− Update Housing Needs Assessment to address state law
Housing Constraints (Currently Chapter 3 and Appendix B3) PlaceWorks will review the Administrative Draft Housing Element and update to comply with Government Code Section 65583(a)(4,5)).
Task Deliverable:
− Update Housing Constraints to address state law
Sites Inventory (Chapter 4 and Appendix B4)
6.1 5th Cycle Rezones
Program HE-1.3.1 calls out planned rezones as a part of the 5th Cycle Housing Element. PlaceWorks will work with City staff to determine the status of these rezones and if they were included to accommodate a portion of the 5th Cycle RHNA.
6.2 Review Approved Project and Sites
PlaceWorks Staff will review the approved and proposed projects assumed to meet the RHNA to confirm buildout horizon, affordability, and building permit status, consistent with HCDs Sites Inventory Requirements to include approved and proposed projects.
PlaceWorks will review the approved sites list to ensure compliance with state law for including underutilized (non-vacant) sites to meet the RHNA. As part of this analysis, we will analyze the realistic development potential within the planning period by considering the extent that an underutilized/nonvacant site’s existing use impedes additional residential development, the jurisdiction’s past experience converting existing uses to higher-density residential development, market trends and conditions, and regulatory or other incentives or standards that encourage additional housing development on any nonvacant sites.
6.3 Electronic Housing Element Site Inventory Form
Pursuant to SB 6 (Chapter 667, Statutes of 2019), for a Housing Element adopted on or after January 1, 2021, an electronic copy of the final inventory of the land inventory parcels using HCD-approved Excel spreadsheets must be prepared and submitted to HCD with the Adopted Housing Element.
Task Deliverable:
− PlaceWorks staff proposes two (2) meetings to review the approved project/sites lists. − Updated land inventory section in the Housing Element − Electronic Sites Inventory Form to be completed and submitted to HCD after the Housing Element is adopted −
482
CC 03-07-2023
482 of 773
6TH CYCLE HOUSING ELEMENT 3. Scope of Services 3
Fair Housing Assessment (Appendix B1)
PlaceWorks will review the draft of the Fair Housing Assessment (Appendix B1) and ensure that all the following required sections are updated or incorporated into the draft.
Local Analysis Needed Regional Analysis Needed
Patterns of Integration and Segregation
• Income
• Race & Ethnicity
• R/ECAP
• RCAA
• Disability
• Familial Status
Access to Opportunity
• TCAC Maps
• Transit
• Environmental Health
• Persons with Disabilities
Disproportionate Housing Needs
• Overcrowding
• Overpayment
• Substandard Housing
• Homelessness
• Displacement Risk
Other Relevant Factors
• History of Segregation
• Mortgage Lending
• Investment Patterns
• Land Use and Zoning
Enforcement and Outreach Capacity
• Compliance with FH laws
• Discrimination cases
• FH outreach capacity
• Summary of outreach completed
Contributing Factors
• Identifies meaningful actions
• Prioritizes contributing factors
Sites Analysis
• Analyze sites with AFH factors
Programs
• Metrics and Milestones
Task Deliverable:
− Update Fair Housing Section to address state law
Patterns of Integration and Segregation
• Income
• RCAA
• Disability
• Familial Status
Access to Opportunity
• TCAC Maps
• Transit
• Education
• Employment
• Environmental Health
• Persons with Disabilities
Disproportionate Housing Needs
• Overcrowding
• Overpayment
• Substandard Housing
• Homelessness
• Displacement Risk
483
CC 03-07-2023
483 of 773
4 3. Scope of Services 6TH CYCLE HOUSING ELEMENT
Goals, Policies, and Programs
PlaceWorks will review all Programs to ensure compliance with state law requirements. Specific Quantified Objectives will be added to each applicable program and specific objectives will be included to address fair housing needs.
The current Administrative Draft Housing Element includes some programs to addresses state law, additional programs will need to be modified and new programs included to comply with Government Code Sections 65583 et seq.
Programs will address:
Development controls and regulatory incentives
Housing opportunities for all residents, including the elderly, those with disabilities, the homeless, and other special-needs groups
Fair housing programs
Sources of affordable housing funding
Preserving and improving existing affordable housing
Facilitating development of adequate housing and infrastructure to meet the needs of low- and moderate-income households in keeping with the regional fair-share allocation Mitigating any governmental constraints to providing and improving housing Task Deliverable:
− Update Programs to address state law
Housing Element Preparation
9.1 Revised Administrative Draft
While the Housing Element is in the initial 90-day review period PlaceWorks is completing the HCD Housing Element checklist and preparing a Revised Draft Housing Element for staff review with tracked changes that can get incorporated into the initial 90-day review draft.
Task Deliverable:
− One electronic copy (in MS Word) of the Administrative Draft Housing Element
9.2 HCD Review Draft (90-day review incorporate revisions, if feasible) During this 90-day review period, Place works staff will initiate contact with the assigned HCD reviewer for and will coordinate with HCD throughout the 90-day review, as possible. If it is possible to make changes during the 90-day review period, PlaceWorks will take the lead with changes and provide an updated draft to post on the City’s website for 7 days prior to submittal to HCD.
Task Deliverables:
− One (1) electronic copy (in MS Word and PDF) of the Public Review Draft Housing Element to the City
9.3 Revised 2nd HCD Review Draft
Once the 90-day HCD review is complete, PlaceWorks will work with City staff to address the findings identified in the HCD letter. All revisions will be made using tracked changes to clearly show the revisions made. PlaceWorks will provide City staff with a PDF to post to the website for a minimum of seven days. 484
CC 03-07-2023
484 of 773
6TH CYCLE HOUSING ELEMENT 3. Scope of Services 5
Task Deliverables:
− One (1) electronic copy (in MS Word and PDF) of the Revised Public Review Draft Housing to be posted on the City’s website.
− One (2) hard copies of the Draft Housing Element (clean and track-change version) and cover letter to HCD.
9.4 Revised 3rd HCD Review Draft
After the required seven-day review period, PlaceWorks will prepare a third HCD Review Draft and submit the Revised HCD Review Draft to HCD to initiate the third review period, a 60-day review period. PlaceWorks will work closely with the City’s HCD reviewer to address any additional comments they may have.
Task Deliverables:
− One (1) electronic copy (in MS Word and PDF) of the Revised HCD Review Draft Housing Element to the City − Two (2) hard copies of the Draft Housing Element (clean and track-change version) and cover letter to HCD.
9.5 Final Housing Element and Adoption
Once the Housing Element is approved by HCD, PlaceWorks will prepare a final Housing Element for adoption. Once adopted, PlaceWorks will submit the final housing Element to HCD for certification review (60-days).
Task Deliverables:
− Electronic copies (in MS Word and PDF) of the final draft to the City and to HCD with a cover letter for their 60-day review. One (1) clean version and one (1) showing all changes made. − Two (2) hard copies submitted to HCD (one (1) clean version and one (1) showing all changes made). − Final adopted Housing Element will be formatted into In Design. We will provide one draft and then final electronic document
9.6 Addressing Public Comment
During each release of the document (Tasks 9.1, 9.2, 9.3, and 9.4) PlaceWorks will also review public comment and incorporate revisions into the Housing Element as necessary. The budget assumes 6 hours of PlaceWorks time for each round of review, for a total of 24 hours to review and respond to public comments. The budget does not assume formal responses to the commenter.
Task Deliverables:
− Six (6) hours to review and respond to public comments with each release (Tasks 9.1, 9.2, 9.3, and 9.4), for a total of 24 hours.
HCD Review Process
PlaceWorks staff maintains strong working relationships with HCD reviewers. Our staff is very familiar with HCD’s processes, staff, and what steps need to be taken to ensure Housing Element certification.
PlaceWorks assumes a total of four rounds of review with HCD and will serve as the City’s liaison to HCD, which includes:
City staff submitted the initial Housing Element to HCD (90-day review). PlaceWorks will complete the subsequent submittals to HCD, (We anticipate two additional 60-day rounds of review to obtain a conditional compliance letter, we consider this the 2nd and 3rd HCD reviews). Calls and emails with HCD staff to discuss comments.
Incorporating HCD’s requested revisions.
Submission of the final draft to HCD for review and approval (60-day review) (We consider this the fourth HCD submittal). 485
CC 03-07-2023
485 of 773
6 3. Scope of Services 6TH CYCLE HOUSING ELEMENT
Task Deliverables:
− We are anticipating two rounds of additional review (City staff has submitted the draft to HCD for the initial 90-day review) each subsequent review will take 60-days).
− Two submittals to HCD, including cover letters of the Housing Element with highlighted changes and additions (and printed copies).
− Emails and memorandums to address HCD questions and comments, as needed. − Memos with proposed revisions to the Housing Element resulting from HCD comments incorporated into the Housing Element in a tracked-changes format for review and approval by City staff.
Public Meetings/Hearings
The PlaceWorks team will provide PowerPoint materials for City staff to present at the draft Housing Element and adopt the final Housing Element.
Two (2) meetings to present the HCD findings on the draft Housing Element prior to submitting to HCD for a 2nd review and prior to submitting for a 3rd review
Two (2) public hearings, one (1) Planning Commission hearing to recommend adoption of the Housing Element, and one (1) City Council meeting to adopt the Housing Element.
The PlaceWorks team will prepare the PowerPoint presentations and draft and final Housing Element. City staff will be responsible for the staff reports, resolution, and presentations at all the meetings.
Task Deliverables:
− Four (4) PowerPoint presentations: two (2) to present the draft Housing Element and HCD review findings for the 2nd and 3rd HCD reviews and one (1) for adoption hearings
− PlaceWorks will not present at these meetings/hearings but can attend to help support City staff. 486
CC 03-07-2023
486 of 773
6TH CYCLE HOUSING ELEMENT 3. Scope of Services 7
Schedule
PlaceWorks’ proposed schedule for completion of the 6th Cycle Housing Element is shown in Table 1.
PlaceWorks has a strong track record in meeting project schedules and coordinating closely with its clients. Over years of managing complex projects, we have developed a variety of tools to keep projects on schedule and ensure that staff are well informed at all times:
We maintain an up-to-date schedule throughout the project, to ensure that all team members are aware of upcoming meetings and product due dates.
We stay in close, regular contact with staff and our subconsultants and document important decisions about the project in writing, which ensures that decisions are understood by all team members. We schedule project due dates for staff with adequate time for editing and formatting into finished reports. 487
CC 03-07-2023
487 of 773
8 3. Scope of Services 6TH CYCLE HOUSING ELEMENT
TABLE 1 PROJECT SCHEDULE
January February March April May June July August September October November December Week
1 Week
2 Week
3 Week
4 Week
5 Week
6 Week
7 Week
8 Week
9 Week
10 Week
11 Week
12 Week
13 Week
14 Week
15 Week
16 Week
17 Week
18 Week
19 Week
20 Week
21 Week
22 Week
23 Week
24 Week
25 Week
26 Week
27 Week
28 Week
29 Week
30 Week
31 Week
32 Week
33 Week
34 Week
35 Week
36 Week
37 Week
38 Week
39 Week
40 Week
41 Week
42 Week
43 Week
44 Week
45 Week
46 Week
47 Week
48 Week
49 TASK 1 Project Management and Coordination
1.1 Project Kick off
1.2 Project Management * * * * * * * * * * * * *
1.3 Ongoing Coordination
2.1 Review of Current Administrative Draft
2.2 Housing Element Reformat
3.1 Review of Previous
4.1 Housing Needs Assessment
5.1 Housing Constraints
6.1 5th Cycle Rezones
6.2 Review Approved Project and Sites
6.3 Electronic Housing Element Sites Inventory Form
7.1 Fair Housing Assessment
8.1 Goals, Polices and Programs
9.1 Revised Adminstrative Draft
9.2 HCD Review Draft
TASK 5. Housing Constraints
Task 7. Fair Housing Assessment
TASK 9. Housing Element Preparation
TASK 2 Housing Element Review
TASK 3 Review of Exisiting Programs
Task 8. Goals, Polices and Programs
Task 6. Sites Inventory
TASK 4. Housing Needs Assessment
9.3 Revised 2nd HCD Review Draft
9.4 Revised 3rd HCD Review Draft
9.5 Final Housing Element and Adoption Document
9.6 Address Public Comment
10.1 HCD Review Process
11.1 Public Meetings/Hearings Materials * * * *
TASK 11. Public Meetings/Hearings Materials
TASK 10. HCD Review Process
1st HCD Review - 90-days 2nd HCD Review - 60-days 3rd HCD Review - 60-days PlaceWorks Team
City Review
HCD Review
Public Hearing/Meeting *
488
CC 03-07-2023
488 of 773
6TH CYCLE HOUSING ELEMENT 4. Proposed Budget 9
Proposed Budget
As shown in Table 2, the estimated cost to complete the scope of work described in this proposal.
PlaceWorks is already under contract for Tasks 1- 5 for $90,305, this full scope includes the remaining Task 6- 11 to complete the Housing Element update for an additional $143,010 for a total cost of $233,315. The billing rates for each team member are included in Table 3. PlaceWorks bills for its work on a time-and-materials basis with monthly invoices.
Assumptions
This scope of work and cost estimate assumes that:
Our cost estimate includes providing City staff meeting materials but not presenting at public meetings. No more than six hours of PlaceWorks staff time will be allocated to respond to public comments on the each of the three Draft Housing Elements, this is separate from scoped HCD review process. If additional labor is necessary, a contract amendment allowing additional work will be necessary.
This budget does not include any assistance with Public Records Requests. All products will be submitted in electronic (PDF) format, printing costs are included for the three sets of documents we will submit to HCD.
489
CC 03-07-2023
489 of 773
10 4. Proposed Budget 6TH CYCLE HOUSING ELEMENT
TABLE 2 COST ESTIMATE
Jennifer
Gastelum
Cynthia
Walsh Lucy Rollins Karla Martinez
PIC PM Associate Prj. Planner
Hourly Rate: $250 $185 $160 $125 $165 $125 $130 $130
Task 1 Project Management and Coordination
1.1 Project Kick off 2 2 2 2 8 $1,440
1.2 Project Management 35 35 10 20 100 $19,425
1.3 Ongoing Coordination 55 70 40 165 $33,100
Task 1. Subtotal 92 107 52 2 0 0 0 20 273 $53,965
Task 2 Housing Element Review
2.1 Review of Current Administrative Draft 8 30 16 54 $9,550 Task 2. Subtotal 8 30 0 16 0 0 0 0 54 $9,550
Task 3 ROP
3.1 Review of Previous 8 6 12 6 2 34 $4,980
Task 3. Subtotal 0 8 6 12 0 0 6 2 34 $4,980
Task 4 Goals, Polices and Programs
4.1 Goals, Polices and Programs 4 35 20 5 8 4 76 $12,860 Task 4. Subtotal 4 35 20 5 0 0 8 4 76 $12,860
Task 5 Sites Inventory
5.1 5th Cycle Rezones 6 3 2 11 $1,920
5.2 Review Approved Project and Sites 1 50 60 20 25 156 $25,725
5.3 Electronic Housing Element Sites Inventory Form 1 4 8 15 4 32 $4,665 Task 5. Subtotal 2 60 71 35 27 0 0 4 199 $32,310
TASK 6. Housing Needs Assessment
6.1 Housing Needs Assessment 8 16 25 49 $7,165
Task 6. Subtotal 0 8 16 25 0 0 0 0 49 $7,165
TASK 7. Housing Constraints
7.1 Housing Constraints 8 16 25 49 $7,165
Task 7. Subtotal 0 8 16 25 0 0 0 0 49 $7,165
TASK 8. Fair Housing Assessment
8.1 Fair Housing Assessment 8 70 20 16 114 $17,820
Task 8. Subtotal 0 8 70 20 16 0 0 0 114 $17,820
TASK 9. Housing Element Preparation
9.1 Revised Adminstrative Draft 16 4 25 20 65 $9,450
9.2 HCD Review Draft 2 16 4 12 4 38 $6,180
9.3 Revised 2nd HCD Review Draft 16 10 8 4 38 $6,400
9.4 Revised 3rd HCD Review Draft 12 10 8 4 34 $5,660
9.5 Final Housing Element and Adoption Document 8 50 8 2 68 $9,030
9.6 Address Public Comment 4 24 8 4 40 $7,000
Task 9. Subtotal 6 92 28 0 16 50 53 38 283 $43,720
TASK 10. HCD Review Process
10.1 HCD Review Process 50 80 40 16 8 194 $30,690
Task 10. Subtotal 0 50 80 40 16 8 0 0 194 $30,690
TASK 11. Public Meetings/Hearings Materials
11.1 Public Meetings/Hearings Materials 4 24 16 8 2 8 2 64 $10,590 Task 11. Subtotal 4 24 16 8 2 8 0 2 64 $10,590
Labor Hours Total 116 380 295 148 61 58 67 70 1195
Labor Dollars Total $29,000 $70,300 $47,200 $18,500 $10,065 $7,250 $8,710 $9,100 $0 $230,815 PlaceWorks Percent of Total Labor 10% 32% 25% 12% 5% 5% 6% 6%
EXPENSES
EXPENSES TOTAL $2,500
GRAND TOTAL $233,315
PlaceWorks
Hours
PlaceWorks
Total
GIS Graphics TECH.
EDITOR
WP/
CLERICAL
PLACEWORKS
490
CC 03-07-2023
490 of 773
General Plan Update