CC 09-19-2023 Searchable Packet (Updated 09-20-2023) — Cupertino City Council, September 19, 2023 (part 2 of 3)

the following workday and within business hours. Avolve will create a new ticket with a low severity rating if the issue has been resolved but require further root-cause analysis. • High: An error that causes Avolve product to fail with minimal business impact. From a time management perspective, it is not urgent but important. Examples of a high severity are intermittent but frequent operational errors that need to be addressed. Avolve Support will respond to the issue within 12 business hours and try to resolve the issue within 24 business hours. If it requires further investigation and longer resolution time, a temporary workaround will be determined with the City to allow operations to proceed during business hours. Support will work on the issue from Monday to Friday (excluding US holidays) and within business hours. Any issue that requires work beyond business hours will be addressed on the following workday and within business hours. Avolve will create a new ticket with a low severity rating if the issue has been resolved but require further root-cause analysis. • Medium: An error that causes Avolve product to fail with no significant business impact. From a time management perspective, it is not urgent and slightly important to some users. Examples of a medium severity are how-to questions, or specific issues only occurring to a single enduser. Avolve Support will respond to the issue within 24 business hours and resolve the issue within reasonable best efforts. Support will work on the issue from Monday to Friday (excluding US holidays) and within business hours. Any issue that requires work beyond business hours will be addressed on the following workday and within business hours. • Low: A service request for a new feature, additional documentation, or an explanation of product functionality that does not impact business operations. From a time management perspective, it is not urgent with low importance. Avolve Support will respond to the issue within 48 business hours and resolve the issue within reasonable best efforts. Support will work on the issue from Monday to Friday (excluding US holidays) and within business hours.

Any issue that requires work beyond business hours will be addressed on the following workday and within business hours.

Unsupported Issues. Avolve does not cover under Support, and the SLA does not include the following conditions (collectively, the "Unsupported Issues").
• Any Avolve SaaS Solution use not covered by an active support contract and/or not in compliance with a valid agreement with Avolve. Authorized users of the Avolve SaaS Solution are entitled to Support as part of their use fee.
• End-user's computer hardware/software configurations such as OS (e.g., Linux or older Windows versions) or browser versions not supported by Avolve. • Problems caused by misuse or misapplication of the Avolve SaaS Solution, including any anomalies and/or failures in test or production operating environments that impact the Avolve SaaS Solution and are determined to have their cause due to unwarranted City decisions, actions, system configuration/ modification, policies and/or procedures. • Problems caused by City's custom application code authorized to be developed using Avolve APIs as set forth in the documentation accompanying such API and the City's Agreement. • Problems caused by updates or upgrades of City-used (rather than Software Providerprovisioned) 3rd party applications that are integrated with Avolve products and/or services. 130
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• All Training programs, regardless of software version updates and/or upgrades. • On-premises type of support including but not limited to: (a) End-user's Windows configuration issues; (b) On-prem firewall or other security device configuration; (c) On-prem VPN, proxy servers, or other internal devices that connect to the Avolve SaaS solution; (d) City DNS, SSL certifications, or Azure AD configurations and updates if used for the Avolve SaaS solution; (d) On-prem or end-user's network performance monitoring and updates; (e) EndUser browser support; (f) User-modified and new workflows or eforms. Additional services may be purchased for an additional fee.
• Any other reasons set forth in the City's Agreement, including without limitation any downtime due to Microsoft Corporation.

Avolve, in its sole discretion, shall determine whether any of the foregoing exclusions are applicable to City. Any services provided for exclusions shall be paid by City at Avolve's then-current rates, as well as all travel and other expenses incurred by Avolve in providing such services.

City's Obligations for Operational Support. To facilitate clear and consistent communication and timely issue resolution, City shall designate up to two contact persons for technical support processes. These individuals are responsible for initiating support requests, communicating with Avolve technical support personnel, and monitoring the support process with Avolve. Timely City response to Avolve requests for information during issue resolution is a necessary pre-requisite to Avolve's providing Support. Avolve also requires remote access to the City system for the purpose of problem determination and analysis. Where reasonably necessary to provide Support, City shall provide Avolve's technical support personnel reasonable, remote access capabilities into City's systems. Upon Avolve's request, City will also provide reasonable supporting data to aid in the identification and resolution of the issue.

Service Level Commitments
Uptime commitment. Per Avolve's SaaS agreement, Avolve will use commercially reasonable efforts to make the Avolve SaaS Solution available. The Annual Uptime Percentage has 2 components: The infrastructure uptime, which is dependent on Microsoft's SLA; Avolve software, which is 99.5%, excluding Planned Downtime. In the event that Avolve does not meet this uptime commitment, City will be eligible to receive a service credit for 1% of the monthly fee for each one (1) hour of downtime during City's normal business hours, up to 50% of City's Pro-Rated Monthly Subscription Fee.

Definitions
• "Annual Uptime Percentage" is calculated by subtracting from 100% the percentage of 10- minute periods during a calendar month in which the Avolve SaaS Solutions was Unavailable to City.
• "Availability" means the ability to log into the Avolve SaaS Solution. • "Claim" means a claim for a service credit City submits by opening a support case with Avolve, on the basis that the hosted Avolve SaaS Product infrastructure has been Unavailable to City during a service month.
• "Pro-Rated Monthly Subscription Fee" is calculated by dividing the City's applicable annual Avolve SaaS Solution subscription fee by twelve.
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• "Unavailability" means the inability to log into the Avolve SaaS Solution.

Service Credit Requests
To receive a service credit, City must notify Avolve and submit a Claim within thirty (30) days from the incident that would be the basis for the claim. To be eligible, the Claim must include (a) the dates, times, description and duration of each incident experienced; and (b) the City's event logs or any other system telemetry that document the errors and corroborate the claimed Unavailability (any confidential or sensitive information should be removed). Failure to provide a timely Claim, which includes all the required information, will disqualify the Claim and City from receiving a service credit. If Avolve validates the Claim, then Avolve will promptly issue the service credit.

Service Credit Provisions
Service credits are City's sole and exclusive remedy for any failure of Avolve to provide the Avolve SaaS Solution in accordance with the terms of the Agreement. Service credits shall be a credit toward future services only and do not entitle City to any refund or other payment from Avolve. Service credits may not be transferred, applied to another account, exchanged for, or converted to monetary amounts.

The maximum service credits awarded with respect to Claims the City submits in any calendar month shall not, under any circumstance, exceed in the aggregate 50% of the City's Pro-Rated Monthly Subscription Fee for such month. Avolve will use all information reasonably available to it to validate Claims and make a good faith judgment on whether a service credit should be applied to the Claim.

SLA Exclusions
This SLA does not apply to any Availability or Unavailability of the Avolve SaaS Solution:
• During Planned Downtime;
• Caused by Unsupported Issues;
• Caused by factors outside of Avolve's control, including any force majeure event or interruption or impediment to City-side Internet access or other related City-side problems; • That result from City's equipment, software or other technology and/or third party equipment, software or other technology, including any third party hosting providers; • That resulted from Planned Maintenance or associated to beta, evaluation, non-production systems, and trial services accounts;
• That result from any actions or inactions from City or any third party, including employees, Users, agents, contractors, or vendors, or anyone gaining access to the hosted Avolve SaaS Product infrastructure by means of City's (and its Users') passwords or equipment; • Arising from Avolve's suspension and termination of City's right to use the hosted infrastructure in accordance with the Agreement; and
• That result from Avolve application software implementation errors caused by the City's configuration, customization, or installation, or other City-side human errors. 132
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• Avolve, in its sole discretion, shall determine whether any of the foregoing exclusions are applicable to City. Avolve may, but is not obligated to, issue a Service Credit in Avolve's sole discretion where City's use of the Avolve SaaS Solution may be Unavailable due to factors other than expressly provided here in this SLA.

End of Schedule 2.
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Exhibit B: Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured.

1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES Additional Insureds:

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 Commercial General Liability and Cyber 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 Software Provider'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.

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.

The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Software Provider, its employees, agents, and subconsultants.

General Liability:

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 Software Provider's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be 134
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at least as broad as ISO Form 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 forth in this Agreement. 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 self-insurance shall be called upon to protect City as a named insured.

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.

Cyber Liability:

Insurance, with limits not less than:
$2,000,000 each occurrence
$2,000,000 aggregate - all other
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Software Provider 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 security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.

If the Software Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Software Provider . Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

2. ABSENCE OF INSURANCE COVERAGE.

City may direct Software Provider to immediately cease all activities with respect to this Agreement if it determines that Software Provider fails to carry, in full force and effect, all insurance policies with coverages at or above the limits specified in this Agreement.

3. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.

A Certificate of Insurance, on an Accord form, and completed coverage verification shall be provided to City by each of Software Provider's insurance companies as evidence of the stipulated coverages prior to the Commencement Date of this Agreement, and annually thereafter for the term of this Agreement. All of the insurance companies providing insurance for Software Provider shall be licensed to do insurance business in the State of California and shall have, and provide evidence of, a Best Rating Service rate of A:VII or above. 135
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4. SUBCONTRACTORS
Software Provider agrees to be responsible for the performance of any subcontractors the same as if the individual performing or assisting in the performance of services were employees of Software Provider. Third-party software vendors and hosted service providers, including Microsoft, are not considered subcontractors of Software Provider for the purposes of this Agreement.

5. HIGHER INSURANCE LIMITS
If Software Provider 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 Software Provider while the higher limits are maintained but Provider will not be required to maintain insurance above the minimums shown above.
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.

INSURER(S) AFFORDING COVERAGE
INSURER F :

INSURER E :

INSURER D :

INSURER C :

INSURER B :

INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:

PRODUCER
(A/C, No, Ext): PHONE

INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:

IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.

If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.

OTHER:
(Per accident)
(Ea accident)
$
$
N / A

SUBR WVDADDL
INSD

THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS

CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED

ANY AUTO

AUTOMOBILE LIABILITY

Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under

ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)

EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC

CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)

CANCELLATION

AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED

AUTOS ONLY
8/22/2023
Brown & Brown Insurance of AZ, Inc
2800 North Central Avenue, Suite 1100
Phoenix AZ 85004
Marie Puetz, CISR 602-664-7043 602-287-6743 [email protected] Travelers Insurance Company of Canada AVOLSOF-01 Travelers Property Casualty Co of AM 25674 Avolve Holdco Corporation, Avolve Software Corporation
21001 N Tatum Blvd STE 1630-503
Phoenix AZ 85050
Travelers Indemnity Company 25658 1602883842
B
A
X 1,000,000 X 1,000,000 10,000 X Dec = $0 1,000,000 2,000,000 X X Foreign Liab Y Y ZLP41M23114
UXTRV30797
1/2/2023
1/2/2023
1/2/2024
1/2/2024
2,000,000 Aggregate 2,000,000
C
A
1,000,000 X X
X Foreign X HNOA Y Y BA9J542207
UXTRV30797
1/2/2023
1/2/2023
1/2/2024
1/2/2024
Any One Accident 2,000,000
B X X 4,000,000 Y Y CUP3L995642 1/2/2023 1/2/2024
4,000,000 X
10,000
C X
N
Y UB8J755123 1/2/2023 1/2/2024
1,000,000 1,000,000 1,000,000
B
A
Domestic Tech E&O/Cyber Liab
Canadian Tech E&O/Cyber Liab
N
N N
N ZPL21P05221
UXTRV30797
1/2/2023
1/2/2023
1/2/2024
1/2/2024
Per Claim/ Aggregate
Retention
Aggregate/Deductible
5,000,000
10,000
5,000,000/10,000
Blanket Additional Insured applies where required by written contract to General Liability per attached form CG D4 17 02 19 including Blanket Waiver of Subrogation. Blanket Primary & Non-Contributory applies to General Liability per attached form CG T1 00 02 19. Blanket Additional Insured applies to Auto Liability per attached form CA T4 37 02 15. Blanket Automobile Liability Waiver of Subrogation applies per form CA T3 40 20 15. Excess Liability is Following Form for both General Liability and Automobile Liability.

Blanket Waiver of Subrogation applies to Workers' Compensation per attached form WC000313 (00)-01. Privacy Liability is added to the Network and Information Security Coverage Form #PR T1 03 01 17.

Professional Liability/Cyber Liability Retroactive Date: 1/2/2015 See Attached...

City of Cupertino
10300 Torre Avenue
Cupertino CA 95014

THIS CERTIFICATE SUPERSEDES PREVIOUSLY ISSUED CERTIFICATE 137
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ACORD 101 (2008/01)
The ACORD name and logo are registered marks of ACORD
© 2008 ACORD CORPORATION. All rights reserved.

THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE:

ADDITIONAL REMARKS
ADDITIONAL REMARKS SCHEDULE Page of
AGENCY CUSTOMER ID:

LOC #:

AGENCY

CARRIER NAIC CODE

POLICY NUMBER

NAMED INSURED
EFFECTIVE DATE:

AVOLSOF-01 1 1
Brown & Brown Insurance of AZ, Inc
Avolve Holdco Corporation, Avolve Software Corporation
21001 N Tatum Blvd STE 1630-503
Phoenix AZ 85050
25 CERTIFICATE OF LIABILITY INSURANCE
City of Cupertino, its City Council, Officers, Officials, Employees, Agents, Servants, Volunteers as Additional Insured where required by written contract. 138
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..,.._ TRAVELERS]

ONE TOWER SQUARE
HARTFORD, CT 06183

WORKERS COMPENSATION
AND

EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 00 0313 (00)-01
POLICY NUMBER: (UB8J755123)

WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule.

SCHEDULE
DESIGNATED PERSON:

DESIGNATED ORGANIZATION:

ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED

BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER.

DATE OF ISSUE: 1-2-23 ST ASSIGN:
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CITY OF CUPERTINO
Agenda Item
23-12525 Agenda Date: 9/19/2023
Agenda #: 7.

Subject: Award a Cooperative Services Agreement to ReDesign Group, for City's server and storage infrastructure, for a total cost of $389,692.60, including 10% contingency over five years.

1. Find under Municipal Code section 3.22.070(C) that this procurement from the National Association of State Procurement Officials is exempt from formal competitive bidding procedures.

2. Authorize the City Manager to execute a Cooperative Services Agreement with ReDesign Group, for Technology Refresh of the City's server and storage infrastructure, for a total cost of $389,692.60, including 10% contingency over five years.

CITY OF CUPERTINO Page 1 of 1 Printed on 9/13/2023
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CITY COUNCIL STAFF REPORT
Meeting: September 19, 2023
Subject
Award a Cooperative Services Agreement to ReDesign Group, for City’s server and storage infrastructure, for a total cost of $389,692.60, including 10% contingency over five years.

Recommended Actions

1. Find under Municipal Code section 3.22.070(C) that this procurement from the National Association of State Procurement Officials is exempt from formal competitive bidding procedures.

2. Authorize the City Manager to execute a Cooperative Services Agreement with ReDesign Group, for the Technology Refresh of the City’s server and storage infrastructure, for a total cost of $389,692.60, including 10% contingency over five years.

Reasons for Recommendation
Staff recommends the award of a cooperative services agreement with ReDesign Group, for Technology Refresh of the City’s server and storage infrastructure. The procurement will be via the National Association of State Procurement Officials (NASPO), a Cooperative Agreement vehicle that secures competitive rates and favorable terms on goods at the state level.

Dell is the authorized NASPO vendor for the products necessary for this project and sells its products through partners. ReDesign Group is a Dell Titanium Partner, which represents the highest status a partner can attain with Dell. In addition to providing discounted pricing in accordance with NASPO, ReDesign Group’s proposal includes professional installation and configuration services at no additional cost, providing significant benefit and value to the City.

ReDesign’s proposal will bring heightened availability, more robust and secure backup capabilities, and an array of sophisticated protective features than the current infrastructure vendor. Importantly, this proposition aligns with the City's streamlined budgetary constraints.
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Anchoring the City's current network infrastructure are two Hewlett Packard Enterprise (HPE) systems, each offering integrated server and storage capabilities.

While one system is housed at the City Hall data center, the counterpart is strategically positioned in Phoenix, AZ, reinforcing our commitment to business continuity and robust disaster recovery measures.

As current infrastructure nears its end-of-life, there's an impending need for a technological refresh. This update encompasses the server, storage, and backup infrastructure, which underpin numerous systems and applications vital for daily staff operations.

The advantages of the proposed solution are a robust compute and cybersecurity offering fortified defenses against ransomware and other online threats through immutable backups, a swift recovery and expedited retrieval and restoration capabilities for files, applications, servers, databases, and more, ensuring minimal disruptions during emergencies or technical complications. In addition, the City will benefit from enhanced operational management of backups, servers, computing, and storage, resulting in lightening workload for IT personnel.

Formal Competitive Bidding Exemption
CMC Chapter 3.22 ordinarily requires that purchases of services be selected through a Request for Proposal process. However, CMC § 3.22.070 provides for exemptions to the RFP process requirements of that chapter when these purchases occur from any other public agency created under the laws of the State of California or the United States Government. Here, the State of Minnesota was the lead agency for the competitive solicitation, which was created for intended use through NASPO, a national organization formed through a collaboration of all 50 states, the District of Columbia and the territories of the United States.

Staff recommends 1) Council find that CMC 3.22.070 appliable to exempt the competitive bidding process and 2) awarding the agreement with ReDesign Group to replace the current server storage systems at both data centers for the total amount of $389,692.60, including a 10% contingency over five years.

Sustainability Impact
Not applicable.

Fiscal Impact
The cumulative expenditure for ReDesign agreement amounts to $389,692.60.

Council has approved expenditures as part of FY2022-23 Proposed Budget.

California Environmental Quality Act
Not applicable.
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_____________________________________
Prepared by: Tommy Yu, Infrastructure Manager
Reviewed by: Bill Mitchell, Chief Technology Officer
Michael Woo, Senior Assistant City Attorney
Approved by: Pamela Wu, City Manager
Chris Jensen, City Attorney
Attachments:

A – Cooperative Agreement NASPO MNWNC-109
B - Amendments No. 1 to 6 to NASPO MNWNC-109
C - California Participating Addendum
D - Amendments No. 1 & 2 to CA Participating Addendum
E - Data Center Refresh Proposal
F - Disaster Recovery Site (Phoenix) - 5 Year quote
G - Production Site - 5 Year quote
H – Insurance Requirements Exhibit
I – Proof of Insurance
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ATTACHMENT A
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ATTACHMENT B
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Amendment No. 3 to NASPO Master Agreement MNWNC-109
AMENDMENT NO. 3 TO NASPO MASTER AGREEMENT NO. MNWNC-109 THIS AMENDMENT is by and between the State of Minnesota, acting through its Commissioner of Administration (“State”), and EMC Corporation, 176 South Street, Hopkinton, MA 01748 (“Contractor” or “Contract Vendor”).

WHEREAS, the State has a Contract with the Contractor identified as NASPO Master Agreement No. MNWNC-109, April 15, 2015, through July 31, 2021 (“Contract”), to provide Computer Equipment, Peripherals & Related Services; and WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the Commissioner of Administration, or delegate pursuant to Minn.

Stat. § 16C.03, subd. 16, the authority to amend contracts; and WHEREAS, the terms of the Contract allow the State to amend the Contract as specified herein, upon the mutual agreement of the Office of State Procurement and the Contractor in a fully executed amendment to the Contract.

NOW, THEREFORE, it is agreed by the parties to amend the Contract as follows:

1. That NASPO Master Agreement No. MNWNC-109 is extended through July 31, 2022, at the same prices, terms, and conditions.

This Amendment is effective beginning August 1, 2021, or upon the date that the final required signatures are obtained, whichever occurs later, and shall remain in effect through contract expiration, or until the Contract is canceled, whichever occurs first.

Except as herein amended, the provisions of the Contract between the parties hereto are expressly reaffirmed and remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound thereby.

1. EMC Corporation
The Contractor certifies that the appropriate person(s) have executed this Amendment on behalf of the Contractor as
required by applicable articles, bylaws, resolutions, or ordinances.

By:

Signature
Printed Name
Title:

Date:

By:

Signature
Printed Name
Title:

Date:

2. Office of State Procurement
In accordance with Minn. Stat. § 16C.03, subd. 3.

By:

Title: Acquisition Management Specialist
Date:

3. Commissioner of Administration
Or delegated representative.

By:

Date:

DocuSign Envelope ID: EAC889CC-0F07-480E-AB62-8DFA4A153228 Contract Administrator
5/10/2021
Alyssa Sayles
5/14/2021
5/14/2021
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Amendment No. 4 to NASPO Master Agreement MNWNC-109
AMENDMENT NO. 4 TO NASPO MASTER AGREEMENT NO. MNWNC-109 THIS AMENDMENT is by and between the State of Minnesota, acting through its Commissioner of Administration (“State”), and EMC Corporation, 176 South Street, Hopkinton, MA 01748 (“Contractor” or “Contract Vendor”).

WHEREAS, the State has a Contract with the Contractor identified as NASPO Master Agreement No. MNWNC-109, April 15, 2015, through July 31, 2022 (“Contract”), to provide Computer Equipment, Peripherals & Related Services; and WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the Commissioner of Administration, or delegate pursuant to Minn.

NOW, THEREFORE, it is agreed by the parties to amend the Contract as follows:

1. That NASPO Master Agreement No. MNWNC-109 is extended through February 28, 2023, at the same prices, terms, and conditions.

This Amendment is effective beginning August 1, 2022, or upon the date that the final required signatures are obtained, whichever occurs later, and shall remain in effect through contract expiration, or until the Contract is canceled, whichever occurs first.

Except as herein amended, the provisions of the Contract between the parties hereto are expressly reaffirmed and remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound thereby.

By: Signature
Printed Name
Title:

Date:

By:

Signature
Printed Name
Title:

Date:

2. Office of State Procurement
In accordance with Minn. Stat. § 16C.03, subd. 3.

By:

Title: Acquisition Management Specialist
Date:

3. Commissioner of Administration
Or delegated representative.

By:

Date:

DocuSign Envelope ID: 94A64504-83BF-46CD-A09C-ABBE0A786F6D Alyssa Sayles
Contract Administrator
5/31/2022
5/31/2022
5/31/2022
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Amendment No. 5 to NASPO Master Agreement MNWNC-108
AMENDMENT NO. 5 TO NASPO MASTER AGREEMENT NO. MNWNC-108 THIS AMENDMENT is by and between the State of Minnesota, acting through its Commissioner of Administration (“State”), and Dell Marketing L.P., One Dell Way, Mailstop RR1-33 Legal, Round Rock, TX 78682 (“Contractor” or “Contract Vendor”).

WHEREAS, the State has a Contract with the Contractor identified as NASPO Master Agreement No. MNWNC-108, April 1, 2015, through February 28, 2023 (“Contract”), to provide Computer Equipment, Peripherals & Related Services; and WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the Commissioner of Administration, or delegate pursuant to Minn.

NOW, THEREFORE, it is agreed by the parties to amend the Contract as follows:

1. That NASPO Master Agreement No. MNWNC-108 is extended through July 31, 2023, at the same prices, terms, and conditions.

This Amendment is effective upon the date that the final required signatures are obtained, and shall remain in effect through contract expiration, or until the Contract is canceled, whichever occurs first.

Except as herein amended, the provisions of the Contract between the parties hereto are expressly reaffirmed and remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound thereby.

1. Dell Marketing L.P.

The Contractor certifies that the appropriate person(s) have executed this Amendment on behalf of the Contractor as
required by applicable articles, bylaws, resolutions, or ordinances.

By:

Signature
Printed Name
Title:

Date:

By:

Signature
Printed Name
Title:

Date:

2. Office of State Procurement
In accordance with Minn. Stat. § 16C.03, subd. 3.

By:

Title: Acquisition Management Specialist
Date:

3. Commissioner of Administration
Or delegated representative.

By:

Date:

DocuSign Envelope ID: A1131CC0-2CC4-4271-AFF0-B574CFFD18AE 1/10/2023
ParaLegal Advisor
Katherine Castillo
2/1/2023
2/1/2023
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Amendment No. 65 to NASPO Master Agreement MNWNC-109
AMENDMENT NO. 6 TO NASPO MASTER AGREEMENT NO. MNWNC-109 THIS AMENDMENT is by and between the State of Minnesota, acting through its Commissioner of Administration (“State”), and EMC Corporation, 176 South Street, Hopkinton, MA 01748 (“Contractor” or “Contract Vendor”).

WHEREAS, the State has a Contract with the Contractor identified as NASPO Master Agreement No. MNWNC-109, April 1, 2015, through July 31, 2023 (“Contract”), to provide Computer Equipment, Peripherals & Related Services; and WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the Commissioner of Administration, or delegate pursuant to Minn.

NOW, THEREFORE, it is agreed by the parties to amend the Contract as follows:

1. That NASPO Master Agreement No. MNWNC-109 is extended through October 31, 2023, at the same prices, terms, and conditions.

Except as herein amended, the provisions of the Contract between the parties hereto are expressly reaffirmed and remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound thereby.

By:

Signature

Printed Name
Title:

Date:

By:

Signature

Printed Name
Title:

Date:

2. Office of State Procurement
In accordance with Minn. Stat. § 16C.03, subd. 3.

By:

Title: Acquisition Management Specialist
Date:

3. Commissioner of Administration
Or delegated representative.

By:

Date:

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ATTACHMENT C
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ATTACHMENT D
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Prepared By:

The REDESIGN Group
Prepared for:

City of Cupertino
Project
Proposal
Data Center Refresh Proposal
Version # 2
Delivered on 6.29.23

ATTACHMENT E
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PowerEdge Compute with PowerStore Storage
Servers – (3) PowerEdge R650 Servers
Storage – (1) PowerStore 500T NVMe Storage Array
Backup – (3) Sockets PowerProtect Data Manager + (1) Data Domain DD6400 Appliance Implementation – [RE]DESIGN Onsite Implementation & Migration Services 238
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PowerEdge 15G Overview
Key Features
PowerEdge Servers are the Bedrock of the Modern Data
Center. The platform delivers in 3 key areas:

All PowerEdge 15G
Server Models include
iDRAC 9 Management
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PowerStore Overview
✓ Support for any workload (Physical, virtual, DB, File, Container) ✓ Scales Up and Out
✓ All NVMe
✓ Six 9’s of HA
✓ Simple HTML5 GUI
✓ Future Proof no Forklift UPG’s
PowerStore Benefits
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PowerStore + PowerEdge
PowerStore 500T
CPU (1) Intel CPU | (12) Cores x 2.2 GHz Per Controller (24) Cores | 52.8GHz Appliance Total
Memory 96GB Per Controller
192GB Appliance Total
Drives (8) 1.92TB NVMe SSD – Single Drive Failure (4+1) ~17 Open Capacity Slots
Capacity 15.35TB Raw | 9.8TB Usable | 29.4TB Effective
Includes Custom 3 : 1 Data Reduction
Performance
Unified | VVOL + LUN
Workload 5,000 IOPS @ 40.96MB/s
Max Workload 89,719 @ 734 MB/s
Power (2) 1450W Fully Redundant (1+1) PSU
120/240v LowLine/HighLine
NICs
(2) Quad Port 10/25GbE SFP28 Mezz
(2) Quad Port 10/25GbE SFP28 IO Module
6 Ports Used per Controller
12 Ports Total
Support 60 Months ProSupport Mission Critical (4 Hour)
Services [RE]DESIGN White Glove Implementation Services (3) PowerEdge R650 Servers
CPU Single Intel 6342 Processor | 24 Cores x 2.8 GHz
24 cores per node (67.2 GHz) | 72 cores per cluster (201.6 GHz) Memory 1024 GB (16 x 64 GB DIMMs) per node | 0 open slots 3072 GB per cluster
Drives (2) 480GB SATA MU SSD @ RAID 1 | OS
PERC H755
NICs
(1) Mellanox ConnectX-5 Dual Port 10/25GbE SFP28, OCP 3.0 (1) Mellanox ConnectX-5 Dual Port 10/25GbE SFP28, PCIe v2 4 Ports Used per Node | RDMA Enabled
12 Ports Total
Switches (2) S5224F - (24) 25G SFP28 Ports per Switch
Power (2) 1100W Fully Redundant (1+1) PSU
120-240V Autosensing
Licensing vSphere Enterprise Plus – None Included
Windows Data Center 2019/2022 – None Included
Support 60 Months ProSupport Mission Critical (4 Hour)
Services [RE]DESIGN White Glove Implementation Services 9 Total Rack Units
(1) PowerStore 500T
(3) R650 Servers
Storage
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13 14
15 16
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41 42 Stack ID Stack ID
Compute
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Current State Comparison
Component Current State New VxRail + PS Cluster Difference % Difference CPU 4 3 -1 -25%
Cores 56 72 16 29%
vCPU Ratio 1 : 5.8 1 : 4.51 -1.29 -22.24%
Peak CPU (GHz) 78 201.6 123.6 61% Free
Net CPU (GHz) 123.2 201.6 78.4 64%
Peak Memory (GB) 1054.72 3,072 2,017 66% Free
Net Memory (GB) 1,536 3,072 1536 100%
Storage Used (TBu) 18.68 29.4 10.72 36% Free
Current State vs. VxRail + PowerStore Cluster
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PowerProtect & PowerProtect Data Manager Overview
Transparent Snapshots simplifies VM image
backups delivering near-zero impact on VMs
Ensure availability of all your VMs
at scale without business disruption
Near zero impact to VMs or environment
Up to 5X faster backups1
Up to 5X reduction in VM latency2
Zero proxies for data movement
Environment auto-scales via automation
Oracle SQL Exchange SAP HANA Kubernetes VMware and open hypervisors Filesystems243
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Data Protection – Sizing Recommendation
Name Type Protocol Application Max MB/Sec
Req.

Growth % RawFull TB Raw Inc
TB
Total Retained
TB
Data Changed
TB
Reduction
Ratio
Reduction %
Rich Media - 3wk
Retention
File System DD BoostVS (Win) PowerProtect 52.69 10.0 1.14 0.0342 36.32 1.93 18.78:1 94.69 General VM - 3wk
Retention
VMDK-Content
is File System
DD BoostVS (Win) PowerProtect 235.7 10.0 5.1 0.153 162.47 2.97 54.79:1 98.17 Database - 3wk
Retention
DB-SQL DD BoostVS (Win) PowerProtect 56.38 10.0 1.22 0.0366 38.86 0.92 42.25:1 97.63 General VM - 5wk
Retention
VMDK-Content
is File System
DD BoostVS (Win) PowerProtect 40.21 10.0 0.87 0.0261 46.11 0.63 73.54:1 98.63 Database - 5wk
Retenion
DB-SQL DD BoostVS (Win) PowerProtect 4.16 10.0 0.09 0.0027 4.77 0.08 56.12:1 98.32 File - 5wk
Retention
File System DD BoostVS (Win) PowerProtect 4.16 10.0 0.09 0.0027 4.77 0.07 64.55:1 98.53 Rich Media - 5wk
Retention
File System DD BoostVS (Win) PowerProtect 10.63 10.0 0.23 0.0069 12.19 0.44 27.52:1 96.39 File - 3wk
Retention
File System DD BoostVS (Win) PowerProtect 217.21 10.0 4.7 0.141 149.72 3.26 45.92:1 97.82 • Capacity Recommended with Data Domain(TB):
– 12.13
• Capacity Recommended w/out Data Domain(TB):
– 455.21
• Storage Savings
– 97.74%
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2 Total Rack Units
Production Backups
POWERPROTECT DD6400 DATA

PROTECTION APPLIANCE
• Efficient → Industry average 30:1 deduplication ratio • Integrated → Native integration and single line of support between SW/HW • Cloud Enabled → Industry leading public cloud integration for LTR & DR • Secure → FIPS-140-2 Encryption At-Rest and In-Flight
PowerProtect Data Domain 6400 + Data Manager Software
System PowerProtect Data Domain 6400 + PowerProtect Data Manager Software (Socket-Based) Capacity Active Tier Capacity – 16 TBu
Software (3) Sockets PowerProtect Data Manager (3 Year Subscription) Connectivity (2) 25G SFP28 Ports
Services [RE]DESIGN White-Glove Implementation Services Support 60 Months –ProSupport (4 Hour) Cloud DR
Enabled
(1) Data Domain DD6400
PPDD
Replication
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03 04
05 06
07 08
09 10
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[RE]DESIGN Implementation Services
[RE]DESIGN will provide onsite resource(s) to complete comprehensive, white-glove implementation of every component included in this order. This includes install, configuration, testing, validation, integration, documentation, and a tested and executed migration plan.

Rack & Stack:
• Unpack and inspect all hardware
• Rack, mount and/or position all products and components • Install and route power, data, and KVM cables
• Apply customer-provided labels to newly installed cables • Power on all equipment
• Confirm server boots and check for errors on all systems • Configure network addresses on IPMI (i.e., iDRAC) if applicable Network, Compute & Storage Implementation:
• Install and Configure Backend Network Switches
• Install Hypervisor and cluster manager (i.e., ESXi and vCenter) • Confirm all component drivers and firmware are latest supported versions • Configure Cluster and Converged Datastore
• Setup encryption and key management if required
• Install latest firmware and software patches/updates
• Activate and Install all licensing for all servers and storage hardware • Validate systems implementation and review results with customer • Setup vendor support systems and automated health checks (i.e., Dell ESRS or Support Assist)
Backup System Implementation:
• Install and Configure backup system (i.e., IDPA/PowerProtect) • Install firmware and software patches/updates
• Enable backup storage encryption if required
• Configure backup server
• Connect to virtual infrastructure if applicable
• Deploy backup proxies if applicable
• Setup test VM/server backup
• Perform Functional Overview and Knowledge Transfer
• Assist with Configuration of backup policies
Testing, Validation and Documentation:
• Verify that all components have network connectivity to Client’s network • Perform basic verification tests (i.e., ping, traceroute, show commands) • Test product failover capability
• Verify configuration aligns with the design
• Create vendor support requests to update all client configuration information and entitlements
• Conduct Knowledge Transfer with the client
• Register customer to receive vendor product alerts if required • Handover As-Built Documentation
Phase 1 Phase 2
Production Migration:
• Identify all existing Network, Storage, Server, Backup, and VM Configs • Establish and execute migration framework/plan
• Establish migration order and timeline with Client
• Setup migration tools (i.e., P2V converter, SAN copy, etc.) • Execute limited migration on predefined timeline per Client Change Management policies
• Test and time successful migration using test/non-production VMs • Includes the migration of up to 25 Servers or up to 10TB of data. • Additional Prof. Services SOW = Any additional server migrations above the 25 servers or 10TB, including server patching/updating or application or 3rd party vendor specific migrations, are out of scope.

Impacting Factors:

NOTE: We have separated out the migration as Phase 2 due to inherent nuances that warrant an extended and often fragmented implementation timeline. Examples include:
• Business impact or strict change control
• Complexity of source to target configuration
• Size and variability of workload types
• Legacy tech debt and/or non-supported configurations
• Maintenance, patching, update, or version issues in environment • Lack of documentation or knowledge of environment
• Resource availability and/or capacity issues
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Proposed Project Timeline
Infrastructure Refresh
Project Timeline
Lead Times
Project Planning – 3 Weeks
Dell Hardware – 6 Weeks
Onsite Resource Availability – 12 Weeks
Onsite
Deployment
2 Weeks
9/29/23 12/22/23 1/9/24
Migration
3 Weeks
PO Date Go Live
1/29/24
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COMPONENT DETAIL TOTAL INVESTMENT
ESXi Compute • (3) PowerEdge R650 Servers + 5Y ProSupport (4 Hour) $71,376 Production Storage • (1) PowerStore 500T NVMe Array + 5Y ProSupport (4 Hour) $60,729 Backup Storage • (1) PowerProtect Data Domain DD6400 Appliance (16TB) + 5Y ProSupport (4 Hour) $36,387 Backup Software • (3) Sockets PowerProtect Data Manager + 5Y ProSupport (4 Hour) $8,641 Implementation • (1) Onsite Resource for Comprehensive, White-Glove Implementation Included Phoenix Site • Identical Configuration at Phoenix location $177,133 Total Investment: $354,266
CapEx Financial Summary
3-Year Satisfaction Guarantee
With the purchase of a three-year
ProSupport agreement, Dell EMC guarantees
three-years of storage, data protection, and
hyperconverged product satisfaction, while
the industry standard is 30-days.

Hardware Investment Protection
Take the opportunity to trade-in
existing, or competitive systems, for
credit towards next generation Dell EMC
storage, data protection, or HCI product
offerings.

Clear Price Maintenance
Clear and transparent support pricing
that details prepaid support and locks
in future maintenance costs with the
Dell EMC Clear Price Support
Framework.
* Pricing does not include tax or shipping 248
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Thank You
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Q-003886 Version 1
Tuesday, August 15
Tommy Yu
City of Cupertino
[email protected]
DR Site 5 Year Quote
(Phoenix)
City of Cupertino
by Sarah Reynolds for
Technical Inside Sales Representative
The [RE]DESIGN Group
[email protected]

ATTACHMENT F
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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Servers
Description Price Qty Ext. Price
BUILD (3) PowerEdge R650 Servers with 60 Months ProSupport Mission Critical
$71,376.00 1 $71,376.00
210-AYJZ PowerEdge R650 Server 3
379-BEIC 8x2.5 Front Storage 3
379-BDSS SAS/SATA Backplane 3
379-BDTE No Rear Storage 3
461-AAIG Trusted Platform Module 2.0 V3 3
321-BGHM 2.5" Chassis with up to 8 Hard Drives (SAS/SATA), 1 PCIe Slot, 1 CPU 3 338-CBXQ Intel Xeon Gold 6342 2.8G, 24C/48T, 11.2GT/s, 36M Cache, Turbo, HT (230W) DDR4-3200
3 374-BBBX No Additional Processor 3
412-AAVN Heatsink for 1 CPU configuration (CPU more than 165W) 3 370-AAIP Performance Optimized 3
370-AEVR 3200MT/s RDIMMs 3
780-BCDN RAID 1 3
405-AAZB PERC H755 SAS Front 3
750-ACFR Front PERC Mechanical Parts, front load 3
384-BBBL Performance BIOS Settings 3
800-BBDM UEFI BIOS Boot Mode with GPT Partition 3
384-BCTH 3 Very High Performance Fans for 1 CPU 3
450-AKLF Dual, Redundant(1+1), Hot-Plug Power Supply,1100W MM(100- 240Vac) Titanium
3 330-BBRQ Riser Config 0, 1CPU, Half Length, Low Profile, 1 x16 Slot 3 329-BFGW PowerEdge R650 Motherboard with Broadcom 5720 Dual Port 1Gb On-Board LOM
3 528-CRVW iDRAC9 Datacenter 15G 3
528-CTZH OpenManage Enterprise Advanced Plus 3
528-COYT Secured Component Verification 3
540-BCOF Mellanox ConnectX-5 Dual Port 10/25GbE SFP28, OCP NIC 3.0 3

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Servers
Description Price Qty Ext. Price
325-BECJ LCD Bezel 3
350-BCEI Luggage Tray x8 and x10 Chassis, R650 3
403-BCID BOSS Blank 3
350-BBXM No Quick Sync 3
379-BCSF iDRAC,Factory Generated Password 3
379-BCQY iDRAC Group Manager, Disabled 3
634-BWZG VMware ESXi 7.0 U3 Embedded Image (License Not Included) 3 605-BBFN No Media Required 3
770-BDMT Cable Management Arm 3
770-BECD ReadyRails Sliding Rails Without Cable Management Arm or Strain Relief Bar
3 631-AACK No Systems Documentation, No OpenManage DVD Kit 3 340-CUQR PowerEdge R650 Shipping 3
340-CUQO R650 Ship 8x2.5 3
343-BBQY R650 Dell/EMC label (BIS) for 2.5" Chassis 3
389-DYHX PowerEdge R650 CCC Marking, No CE Marking 3
817-BBBB Custom Configuration 3
853-2137 Dell Hardware Limited Warranty Plus Onsite Service 3 853-2140 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 3 Years
3 853-2144 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 2 Years Extended
3 853-2159 ProSupport Mission Critical 7x24 Technical Support and Assistance 5 Years
3 975-3462 Dell Limited Hardware Warranty Plus Service, Extended Year(s) 3 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
3 825-8623 Certified Deployment Partner T1 or Distributors 3 370-AEVP 64GB RDIMM, 3200MT/s, Dual Rank, 16Gb 48

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Servers
Description Price Qty Ext. Price
400-AXTV 480GB SSD SATA Read Intensive 6Gbps 512 2.5in Hot-plug AG Drive, 1 DWPD
6 492-BBDI C13 to C14, PDU Style, 12 AMP, 6.5 Feet (2m) Power Cord, North America
6 540-BDIN Mellanox ConnectX-5 Dual Port 10/25GbE SFP28 Adapter, PCIe Low Profile, V2
3 210-AXLU Cables & Others Virtual Base 1
407-BCZR Dell Networking, Transceiver, SFP+, 10GbE, SR, 850nm Wavelength, 300m Reach
6 470-BBDD Dell Networking, Cable, SFP+ to SFP+, 10GbE, Copper Twinax Direct Attach Cable, 3 Meter
16 470-ABOU Dell Networking Cable, 100GbE QSFP28 to QSFP28, Passive Copper Direct Attach Cable, 0.5 Meter
2 470-ACLK Dell Networking Cable, OM4 LC/LC Fiber Cable, (Optics required), 5 Meter
6 450-AAFH Power Cord, 125V, 15A, 10 Feet, NEMA 5-15/C13 3 Subtotal: $71,376.00
Storage
Description Price Qty Ext. Price
BUILD (1) PowerStore 500T SAN with 60 Months ProSupport Mission Critical
$60,729.00 1 $60,729.00
210-AXXJ PowerStore 500T Customer Rack 1
370-AFXQ 192GB Appliance DIMM 96GB Per Node 1
379-BEIO Thank you for choosing Dell 1
528-BTZK PowerStore Base SW 1
406-BBOO 25GBE OPTICAL 4 PORT CARD PAIR 1
450-AKHM 1450 WATT POWER SUPPLY PAIR 1
343-BBMR BASE UNIT CONFIG KIT 1
379-BDPD ISG Product (info) 1
876-3336 Dell Hardware Limited Warranty 1

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Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Storage
Description Price Qty Ext. Price
876-3470 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 3 Years
1 876-3509 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 2 Years Extended
1 876-3567 ProSupport Mission Critical 7x24 Technical Support and Assistance 5 Years
1 955-9041 Dell Hardware Limited Warranty Plus On Site Service Extended Year 1 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
1 800-BBQV Informational Purposes Only 1
812-4019 ProDeploy Plus No Charge Training 800 1
870-5340 CoDeliver - ProDeploy Plus for PowerStore 5xx T 1 400-BGGI P1 25X2.5 NVME SED SSD 1.92TB 8
565-BBJR 25GBE TWINAX 4 PORT IO MODULE PAIR 1
450-AIOH C19 PWRCORD PAIR NEMA5-15 125V 10A 2Metr 1
470-ADUI 3M PASSIVE 25G TWINAX CABLE QTY 2 6
828-4821 ProSupport: Mission Critical 4-Hour 7x24 On-Site Low Capacity SSD Add-On, 5 Years
8 Subtotal: $60,729.00
PowerProtect
Description Price Qty Ext. Price
BUILD (1) PowerProtect DataDomain 6400 with 60 Months ProSupport Mission Critical
$36,387.00 1 $36,387.00
210-BCFX Controller DD6400 NFS CIFS 1
321-BHJM SYSTEM DD6400 PSNT 1
800-BBQV Informational Purposes Only 1
877-3653 Dell Hardware Limited Warranty 1
877-3660 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 3 Years
1 877-3662 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 2 Years Extended
1

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Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
PowerProtect
Description Price Qty Ext. Price
877-3665 ProSupport Mission Critical 7x24 Technical Support and Assistance 5 Years
1 955-9041 Dell Hardware Limited Warranty Plus On Site Service Extended Year 1 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
1 619-ARIH DD OS 7.7X=IA 1
492-BDET DD 10GSFP IO MODULE NDC INTEL 1
750-ADOJ DD6400 Field Install Kit 1
149-BBKF LICENSE BASE DD OE=IA 1
868-5994 5 Years ProSupport Mission Critical Operating Env Sftwr Spt-Maint 1 868-5960 5 Years ProSupport Mission Critical Capacity Bundle 1TB Raw Sftwr Spt-Contract
1 868-5964 5 Years ProSupport Mission Critical DD Cloud Tier Sftwr SptContract 1 900-9997 On-Site Installation Declined 1
379-BDPD ISG Product (info) 1
800-BBQV Informational Purposes Only 16
492-BDEV DD 25GSFP ENET 2PT INTEL 1
470-AFCN Cable 10GbE 3M AOC 4
470-AFCR Cable 25GbE 7M AOC 2
149-BBKE DD6400 Capacity License Bundle 1TBu=CC 16
868-6010 5 Years ProSupport Mission Critical Capacity Bundle 1TB Raw Sftwr Spt-Maint
16 151-BBRH DD6400 Cloud Tier 1TB =CC 64
868-5953 5 Years ProSupport Mission Critical DD Cloud Tier Sftwr Spt-Maint 64 Subtotal: $36,387.00
PPDM
Description Price Qty Ext. Price
BUILD (1) PowerProtect Data Manager license with 60 Months ProSupport Mission Critical
$8,641.00 1 $8,641.00

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Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
PPDM
Description Price Qty Ext. Price
210-AYMW Dell EMC PowerProtect Data Manager Essentials 1 379-BDTQ Thank you for buying Dell EMC 1
849-3716 5 Years ProSupport MissionCritical PowerProtect Data Mgr Essentials per Socket SftwrSpt-Contract
1 528-CRYV PowerProtect Storage Direct DD vD=IA 1
528-CRYX PowerProtect Cyber Recovery=IC 1
528-CRZJ vRealize=IA 1
825-8623 Certified Deployment Partner T1 or Distributors 1 929-3709 Thank you for Your Order 1
935-6720 Thank you for Your Order 1
626-BBBG Storage Software Info 1
528-CQFC Dell EMC PowerProtect Data Manager Essentials=IA 3 849-3673 5 Years ProSupport Mission Critical PowerProtect Data Mgr Essentials per Socket Sftwr Spt-Maint
3 142-BBFQ Data Protection Advisor=CA 3
528-CPWX Data Protection Central=CA 3
528-CPWY PowerProtect Oracle RMAN Agent=CA 3
528-CPWZ PowerProtect Microsoft Agent=CA 3
528-CPXB PowerProtect Database Agent=CA 3
528-CPXD EMC Granular Recovery Microsoft=CA 3
528-CRYS PowerProtect Storage Direct for PMAX=CA 3
528-CRYW vProtect=CA 3
528-CRYZ PowerProtect Storage Direct for XIO=CA 3
528-CRZC Cloud Disaster Recovery=CC 3
528-CRZG PowerProtect Storage Direct for VMAX=CA 3
528-CRZF RecoverPoint for VMs=IA 3
141-BIBE Cloud Snapshot Manager SaaS=IB 30
528-CPXC PowerProtect DD Virtual Edition=CA 3

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
PPDM
Description Price Qty Ext. Price
528-CPXF Dell EMC Cloud Tier=CA 3
Subtotal: $8,641.00

IMPLEMENTATION
Description Price Qty Ext. Price
IMPLEM1234 [RE]DESIGN Comprehensive, White-Glove Implementation - included
$0.00 1 $0.00
Subtotal: $0.00
Contract Code
Description Qty
NASPO Contract -C000000878001

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[re]DESIGN Terms and Conditions

1. Process of Quoting and Ordering
Customer may request a quote through [re]DESIGN for any products from associated vendors. Quoted prices are effective until the expiration date of the Quote. Customer may place an Order for the offerings quoted by (i) issuing a Customer Purchase Order that references such Quote and, if applicable, contract code or (ii) executing [re]DESIGN Quote in the form of signature and date. Orders may be returned if product arrives damaged, missing items, or is incorrect based on agreed upon Quote.

2. Product Delivery, Shipment, Transfer of Risk & Title & Acceptance

2.a Shipment; Unless otherwise agreed, [re]DESIGN will arrange for shipment of the ordered products to the ship-to address indicated by Customer. Delivery dates are indicative and will be provided as soon as available, updates provided to Customer directly by [re]DESIGN. Software may be provided by delivery of physical media or through electronic means to the email address provided by Customer. Customer shall notify [re]DESIGN within 21 days of invoice date if Customer believes any product included in the order is missing, wrong, or damaged and shall ensure that the intended installation site meets the specifications as per the product documentation.

2.b Transfer of Risk and Title; Costs Risk of loss for equipment and physical media transfers to Customer upon delivery. Title to sold Equipment passes to Customer upon delivery. "Delivery" for equipment occurs when carrier completes delivery at Customers designated point of shipment. "Delivery" of software occurs either when Customer is notified by [re]DESIGN that software is available for download, or when carrier completes delivery at Customers designated point of shipment. Unless otherwise agreed, cost of transit insurance on behalf of Customer shall be included in the total price on the stated Quote.

2.c Acceptance; All products will be deemed to be accepted upon Delivery. Customer may return products if damaged, missing items, incorrect per Quote agreed upon.

3. Invoicing, Payment Terms, and Taxes

3.a Invoicing; [re]DESIGN shall invoice Customer in the currency agreed in the Order. If Customer is tax exempt, customer must provide tax exemption letter to [re]DESIGN. Otherwise, [re]DESIGN is obligated by applicable law to collect and remit any taxes or fees from Customer on final invoice for Order. It will be added as a separate line item in accordance with statutory requirements. [re]DESIGN will invoice Customer on Net30 terms from date of shipment of Order. All invoice terms will be deemed accurate unless Customer advises [re]DESIGN within 10 days following receipt.

If Customer advises [re]DESIGN of a material error, (a) any amounts corrected by [re]DESIGN shall be paid by Customer within 14 days of correction, and (b) all other amounts shall be paid by Customer by the due date. If Customer withholds payment because Customer believes an invoiced amount is incorrect, and [re]DESIGN concludes the amount is accurate, Customer must pay interest of 1.5% on the unpaid disputed amount from the due date until [re]DESIGN's receipt of payment. Customer may offset, defer or deduct any invoiced amounts that [re]DESIGN determines are incorrect following the notification of the process started above.

3.b Payment Terms; Customer shall pay [re]DESIGN's invoices in full and in the same currency as [re]DESIGN's invoice within the time noted on [re]DESIGN's invoice. Standard terms are Net30. Any invoice amounts not timely paid will be subject to a daily interest charge, at the prorated amount of 1.5% per month, or at the highest interest rate allowable under California law.

3.c Taxes; The charges due hereunder are exclusive of, and customer shall pay or reimburse [re]DESIGN for all value added (VAT), sales, use, excise, withholding, personal property, goods and services and other similar taxes, governmental fees, levies, customers and duties resulting from Customer's purchase, except for taxes based on [re]DESIGN's net income, gross revenue, or employment obligations. If Customer qualifies for tax exemption, Customer must provide [re]DESIGN with a valid certificate of exemption or other appropriate proof of exemption. If customer is required to withhold taxes, then Customer will within 60 days of remittance to the applicable tax authority provide [re]DESIGN with satisfactory evidence (e.g., official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted. Otherwise, [re]DESIGN will charge customer for the amount that Customer has deducted for the transaction.

In addition to the foregoing terms, this Quote, as it relates to the Dell Technologies items, is governed by and subject to the Commercial Terms of Sale available at https://i.dell.com/sites/csdocuments/Legal_Docs/en/dell_commercial_terms_of_sales.pdf and available in hard copy upon request and is incorporated in its entirety in this Quote and which the Customer acknowledges having read and agrees to be bound by such online terms.

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DR Site 5 Year Quote (Phoenix)
Prepared by: Prepared for: Quote Information:

The [RE]DESIGN Group City of Cupertino Quote #: 003886
Sarah Reynolds
(424) 207-1600
[email protected]
,
Tommy Yu
(408) 777-3189
[email protected]
Version: 1
Delivery Date: 08/15/2023
Expiration Date: 09/14/2023
Quote Summary
Description Amount
Servers $71,376.00
Storage $60,729.00
PowerProtect $36,387.00
PPDM $8,641.00
IMPLEMENTATION $0.00
Total: $177,133.00
Acceptance of this Quote is binding and the above item(s) will be purchased in reliance thereon. All sales are final. Payment Terms are Net 30. After orders are placed, a final invoice will be provided that shall include all applicable taxes and shipping charges not included herein. Any invoice amounts not timely paid will be subject to a daily interest charge, at the prorated amount of 1.5% per month, or at the highest interest rate allowable under California law. By signing below, the above-named Company, acting underdue and proper authority, hereby agrees that this Quote constitutes a binding Agreement with The [RE]DESIGN Group.

The [RE]DESIGN Group City of Cupertino
Signature:

Name:

Title:

Date:

Signature:

Name:

Date:

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Q-003886 Version 1
Tuesday, August 15
Tommy Yu
City of Cupertino
[email protected]
Production Site - 5 Year
Quote
City of Cupertino
by Sarah Reynolds for
Technical Inside Sales Representative
The [RE]DESIGN Group
[email protected]

ATTACHMENT G
260
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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Servers
Description Price Qty Ext. Price
BUILD (3) PowerEdge R650 Servers with 60 Months ProSupport Mission Critical
$71,376.00 1 $71,376.00
210-AYJZ PowerEdge R650 Server 3
379-BEIC 8x2.5 Front Storage 3
379-BDSS SAS/SATA Backplane 3
379-BDTE No Rear Storage 3
461-AAIG Trusted Platform Module 2.0 V3 3
321-BGHM 2.5" Chassis with up to 8 Hard Drives (SAS/SATA), 1 PCIe Slot, 1 CPU 3 338-CBXQ Intel Xeon Gold 6342 2.8G, 24C/48T, 11.2GT/s, 36M Cache, Turbo, HT (230W) DDR4-3200
3 374-BBBX No Additional Processor 3
412-AAVN Heatsink for 1 CPU configuration (CPU more than 165W) 3 370-AAIP Performance Optimized 3
370-AEVR 3200MT/s RDIMMs 3
780-BCDN RAID 1 3
405-AAZB PERC H755 SAS Front 3
750-ACFR Front PERC Mechanical Parts, front load 3
384-BBBL Performance BIOS Settings 3
800-BBDM UEFI BIOS Boot Mode with GPT Partition 3
384-BCTH 3 Very High Performance Fans for 1 CPU 3
450-AKLF Dual, Redundant(1+1), Hot-Plug Power Supply,1100W MM(100- 240Vac) Titanium
3 330-BBRQ Riser Config 0, 1CPU, Half Length, Low Profile, 1 x16 Slot 3 329-BFGW PowerEdge R650 Motherboard with Broadcom 5720 Dual Port 1Gb On-Board LOM
3 528-CRVW iDRAC9 Datacenter 15G 3
528-CTZH OpenManage Enterprise Advanced Plus 3
528-COYT Secured Component Verification 3
540-BCOF Mellanox ConnectX-5 Dual Port 10/25GbE SFP28, OCP NIC 3.0 3

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Servers
Description Price Qty Ext. Price
325-BECJ LCD Bezel 3
350-BCEI Luggage Tray x8 and x10 Chassis, R650 3
403-BCID BOSS Blank 3
350-BBXM No Quick Sync 3
379-BCSF iDRAC,Factory Generated Password 3
379-BCQY iDRAC Group Manager, Disabled 3
634-BWZG VMware ESXi 7.0 U3 Embedded Image (License Not Included) 3 605-BBFN No Media Required 3
770-BDMT Cable Management Arm 3
770-BECD ReadyRails Sliding Rails Without Cable Management Arm or Strain Relief Bar
3 631-AACK No Systems Documentation, No OpenManage DVD Kit 3 340-CUQR PowerEdge R650 Shipping 3
340-CUQO R650 Ship 8x2.5 3
343-BBQY R650 Dell/EMC label (BIS) for 2.5" Chassis 3
389-DYHX PowerEdge R650 CCC Marking, No CE Marking 3
817-BBBB Custom Configuration 3
853-2137 Dell Hardware Limited Warranty Plus Onsite Service 3 853-2140 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 3 Years
3 853-2144 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 2 Years Extended
3 853-2159 ProSupport Mission Critical 7x24 Technical Support and Assistance 5 Years
3 975-3462 Dell Limited Hardware Warranty Plus Service, Extended Year(s) 3 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
3 825-8623 Certified Deployment Partner T1 or Distributors 3 370-AEVP 64GB RDIMM, 3200MT/s, Dual Rank, 16Gb 48

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Servers
Description Price Qty Ext. Price
400-AXTV 480GB SSD SATA Read Intensive 6Gbps 512 2.5in Hot-plug AG Drive, 1 DWPD
6 492-BBDI C13 to C14, PDU Style, 12 AMP, 6.5 Feet (2m) Power Cord, North America
6 540-BDIN Mellanox ConnectX-5 Dual Port 10/25GbE SFP28 Adapter, PCIe Low Profile, V2
3 Subtotal: $71,376.00
Storage
Description Price Qty Ext. Price
BUILD (1) PowerStore 500T SAN with 60 Months ProSupport Mission Critical
$60,729.00 1 $60,729.00
210-AXXJ PowerStore 500T Customer Rack 1
370-AFXQ 192GB Appliance DIMM 96GB Per Node 1
379-BEIO Thank you for choosing Dell 1
528-BTZK PowerStore Base SW 1
406-BBOO 25GBE OPTICAL 4 PORT CARD PAIR 1
450-AKHM 1450 WATT POWER SUPPLY PAIR 1
343-BBMR BASE UNIT CONFIG KIT 1
379-BDPD ISG Product (info) 1
876-3336 Dell Hardware Limited Warranty 1
876-3470 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 3 Years
1 876-3509 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 2 Years Extended
1 876-3567 ProSupport Mission Critical 7x24 Technical Support and Assistance 5 Years
1 955-9041 Dell Hardware Limited Warranty Plus On Site Service Extended Year 1 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
1 800-BBQV Informational Purposes Only 1
812-4019 ProDeploy Plus No Charge Training 800 1

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Storage
Description Price Qty Ext. Price
870-5340 CoDeliver - ProDeploy Plus for PowerStore 5xx T 1 400-BGGI P1 25X2.5 NVME SED SSD 1.92TB 8
565-BBJR 25GBE TWINAX 4 PORT IO MODULE PAIR 1
450-AIOH C19 PWRCORD PAIR NEMA5-15 125V 10A 2Metr 1
470-ADUI 3M PASSIVE 25G TWINAX CABLE QTY 2 6
828-4821 ProSupport: Mission Critical 4-Hour 7x24 On-Site Low Capacity SSD Add-On, 5 Years
8 Subtotal: $60,729.00
PowerProtect
Description Price Qty Ext. Price
BUILD (1) PowerProtect DataDomain 6400 with 60 Months ProSupport Mission Critical
$36,387.00 1 $36,387.00
210-BCFX Controller DD6400 NFS CIFS 1
321-BHJM SYSTEM DD6400 PSNT 1
800-BBQV Informational Purposes Only 1
877-3653 Dell Hardware Limited Warranty 1
877-3660 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 3 Years
1 877-3662 ProSupport Mission Critical 4-Hour 7x24 Onsite Service with Emergency Dispatch 2 Years Extended
1 877-3665 ProSupport Mission Critical 7x24 Technical Support and Assistance 5 Years
1 955-9041 Dell Hardware Limited Warranty Plus On Site Service Extended Year 1 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
1 619-ARIH DD OS 7.7X=IA 1
492-BDET DD 10GSFP IO MODULE NDC INTEL 1
750-ADOJ DD6400 Field Install Kit 1
149-BBKF LICENSE BASE DD OE=IA 1
868-5994 5 Years ProSupport Mission Critical Operating Env Sftwr Spt-Maint 1

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
PowerProtect
Description Price Qty Ext. Price
868-5960 5 Years ProSupport Mission Critical Capacity Bundle 1TB Raw Sftwr Spt-Contract
1 868-5964 5 Years ProSupport Mission Critical DD Cloud Tier Sftwr SptContract 1 900-9997 On-Site Installation Declined 1
379-BDPD ISG Product (info) 1
800-BBQV Informational Purposes Only 16
492-BDEV DD 25GSFP ENET 2PT INTEL 1
470-AFCN Cable 10GbE 3M AOC 4
470-AFCR Cable 25GbE 7M AOC 2
149-BBKE DD6400 Capacity License Bundle 1TBu=CC 16
868-6010 5 Years ProSupport Mission Critical Capacity Bundle 1TB Raw Sftwr Spt-Maint
16 151-BBRH DD6400 Cloud Tier 1TB =CC 64
868-5953 5 Years ProSupport Mission Critical DD Cloud Tier Sftwr Spt-Maint 64 Subtotal: $36,387.00
PPDM
Description Price Qty Ext. Price
BUILD (1) PowerProtect Data Manager license with 60 Months ProSupport Mission Critical
$8,641.00 1 $8,641.00
210-AYMW Dell EMC PowerProtect Data Manager Essentials 1 379-BDTQ Thank you for buying Dell EMC 1
849-3716 5 Years ProSupport MissionCritical PowerProtect Data Mgr Essentials per Socket SftwrSpt-Contract
1 528-CRYV PowerProtect Storage Direct DD vD=IA 1
528-CRYX PowerProtect Cyber Recovery=IC 1
528-CRZJ vRealize=IA 1
825-8623 Certified Deployment Partner T1 or Distributors 1 929-3709 Thank you for Your Order 1

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2629 Manhattan Ave, Suite 307
Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
PPDM
Description Price Qty Ext. Price
935-6720 Thank you for Your Order 1
626-BBBG Storage Software Info 1
528-CQFC Dell EMC PowerProtect Data Manager Essentials=IA 3 849-3673 5 Years ProSupport Mission Critical PowerProtect Data Mgr Essentials per Socket Sftwr Spt-Maint
3 142-BBFQ Data Protection Advisor=CA 3
528-CPWX Data Protection Central=CA 3
528-CPWY PowerProtect Oracle RMAN Agent=CA 3
528-CPWZ PowerProtect Microsoft Agent=CA 3
528-CPXB PowerProtect Database Agent=CA 3
528-CPXD EMC Granular Recovery Microsoft=CA 3
528-CRYS PowerProtect Storage Direct for PMAX=CA 3
528-CRYW vProtect=CA 3
528-CRYZ PowerProtect Storage Direct for XIO=CA 3
528-CRZC Cloud Disaster Recovery=CC 3
528-CRZG PowerProtect Storage Direct for VMAX=CA 3
528-CRZF RecoverPoint for VMs=IA 3
141-BIBE Cloud Snapshot Manager SaaS=IB 30
528-CPXC PowerProtect DD Virtual Edition=CA 3
528-CPXF Dell EMC Cloud Tier=CA 3
Subtotal: $8,641.00

IMPLEMENTATION
Description Price Qty Ext. Price
IMPLEM1234 [RE]DESIGN Comprehensive, White-Glove Implementation - included
$0.00 1 $0.00
Subtotal: $0.00

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Hermosa Beach, CA 90254
redesign-group.com
(424) 207-1600
Contract Code
Description Qty
NASPO Contract -C000000878001
[re]DESIGN Terms and Conditions

2. Product Delivery, Shipment, Transfer of Risk & Title & Acceptance

2.c Acceptance; All products will be deemed to be accepted upon Delivery. Customer may return products if damaged, missing items, incorrect per Quote agreed upon.

3. Invoicing, Payment Terms, and Taxes

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Hermosa Beach, CA 90254
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(424) 207-1600
Production Site - 5 Year Quote
Prepared by: Prepared for: Quote Information:

The [RE]DESIGN Group City of Cupertino
Signature:

Name:

Title:

Date:

Signature:

Name:

Date:

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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

ATTACHMENT H
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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. 270
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ATTACHMENT I
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1001486 132849.13 04-22-2020

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.

INSURER(S) AFFORDING COVERAGE
INSURER F :

INSURER E :

INSURER D :

INSURER C :

INSURER B :

INSURER A :

NAIC #
NAME:

CONTACT
(A/C, No):

FAX
E-MAIL
ADDRESS:

PRODUCER
(A/C, No, Ext):

PHONE

INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:

IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD

PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)

COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOS ONLY AUTOS

NON-OWNED

OWNED SCHEDULED

ANY AUTO

AUTOMOBILE LIABILITY
Y / N

WORKERS COMPENSATION

AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under

ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTHSTATUTEPER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY)

POLICY EFF

LTR TYPE OF INSURANCE POLICY NUMBER
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)

EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $
AGGREGATE $
$
OCCUR

CLAIMS-MADE
DED RETENTION $
PRODUCTS - COMP/OP AGG $
GENERAL AGGREGATE $
PERSONAL & ADV INJURY $
MED EXP (Any one person) $
EACH OCCURRENCE $

DAMAGE TO RENTED
PREMISES (Ea occurrence) $

COMMERCIAL GENERAL LIABILITY

CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:

POLICY PROJECT LOC

CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)

CANCELLATION

AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED

AUTOS ONLY
08/11/2023

ANTHONY SEGIL
15315 MAGNOLIA BLVD STE 405
SHERMAN OAKS CA 91403

ANTHONY SEGIL
818-788-1144 818-748-9156
THE DRALA PROJECT, INC DBA [RE] DESIGN-IT, INC.
2629 MANHATTAN AVENUE SUITE 307
HERMOSA BEACH CA 90254
25143
A

TECH SERV E&O PROF LIAB
CYBER LIAB-DATA BREACH Y PS0000005468903 06/10/2023 06/10/2024 LIMIT OF LIAB $3,000,000
LIMIT OF LIAB $1,000,000

THE CITY OF CUPERTINO, ITS CITY COUNCIL, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, SERVANTS AND VOLUNTEERS (ADDITIONAL INSUREDS) ARE TO BE COVERED AS ADDITIONAL INSUREDS.

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.

CITY OF CUPERTINO
10300 TORRE AVENUE
CUPERTINO CA 95014
State Farm Fire and Casualty Company
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08/11/2023
Cross Insurance-Wakefield
401 Edgewater Place Suite 100
Wakefield MA 01880
Agency Accounts
(781) 914-1000 (781) 224-5777
The Drala Project Inc, DBA: [RE]DESIGN_IT
2629 Manhattan Ave
Suite 307
Hermosa Beach CA 90254
Pacific Employers Insurance Co 22748C
Ace Property & Casualty Ins Co 20699C
CL2311922347
A D97083083 02/02/2023 02/02/2024
1,000,000
1,000,000
5,000
1,000,000
2,000,000
2,000,000
Combined Total AGG 4,000,000
A D97083083 02/02/2023 02/02/2024
1,000,000
B D97081438 02/02/2023 02/02/2024
5,000,000
5,000,000
City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds on Consultants CGL and Automobile liability policies. Waiver of Subrogation applies under General Liability, as required by written contract.

City of Cupertino
10300 Torre Avenue
Cupertino CA 95014

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.

INSURER(S) AFFORDING COVERAGE
INSURER F :

INSURER E :

INSURER D :

INSURER C :

INSURER B :

INSURER A :

NAIC #
NAME:

CONTACT
(A/C, No):

FAX
E-MAIL
ADDRESS:

PRODUCER
(A/C, No, Ext):

PHONE

INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:

IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.

THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD

PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)

COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOS ONLY AUTOS

NON-OWNED

OWNED SCHEDULED

ANY AUTO

AUTOMOBILE LIABILITY
Y / N

WORKERS COMPENSATION

AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under

ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTHSTATUTEPER
(MM/DD/YYYY) LIMITS

POLICY EXP
(MM/DD/YYYY)

POLICY EFF

LTR TYPE OF INSURANCE POLICY NUMBER
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)

EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $
AGGREGATE $
$
OCCUR

CLAIMS-MADE
DED RETENTION $
PRODUCTS - COMP/OP AGG $
GENERAL AGGREGATE $
PERSONAL & ADV INJURY $
MED EXP (Any one person) $
EACH OCCURRENCE $

DAMAGE TO RENTED
PREMISES (Ea occurrence) $

COMMERCIAL GENERAL LIABILITY

CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:

POLICY
PROJECT LOC

CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)

CANCELLATION

AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.

CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED

AUTOS ONLY
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CITY OF CUPERTINO
Agenda Item
23-12356 Agenda Date: 9/19/2023
Agenda #: 8.

Subject: FY 2023-24 Internal Audit Program
Approve the FY 2023-24 Internal Audit Program
Presenter: Jonathan Orozco, Finance Manager
CITY OF CUPERTINO Page 1 of 1 Printed on 9/13/2023
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CITY COUNCIL STAFF REPORT
Meeting: September 19, 2023
Subject
FY 2023-24 Internal Audit Program
Recommended Action
Approve FY 2023-24 Internal Audit Program
Reasons for Recommendation
The Internal Audit Program, conducted by Moss Adams, LLP (“Moss Adams”), the City’s contracted Internal Auditor, will provide direction to the projects undertaken in Fiscal Year (FY) 2023-24. Projects included in the program are prioritized by the Audit Committee and City Council and considered available staff resources for FY 23- 24 completion.

Background
As of FY 2021-22, Moss Adams serves as the City’s designated Internal Auditor and conducts projects focusing on:
 Risks
 Internal controls
 Efficiency and effectiveness
 Best practices
 Compliance
Internal Audit Work Plan
Moss Adams develops an internal audit work plan to guide activities for each fiscal year.

The Audit Committee and City Council approved the internal audit work plan for FY 2021-22 and 2022-23, which included the following projects:
 FY 2021-22:
o Procurement Operational Review
o Policy Inventory and Plan
o Capital Program Effectiveness Study Fraud, Waste, and Abuse Program 289
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 FY 2022-23:
o Budget Process Review
o Enterprise Leadership Effectiveness Study
o Library Construction Audit
For FY 23-24, Moss Adams recommended the following internal audit work plan in chronological order:
 Ongoing Internal Audit Services: Attend Audit Committee and Council meetings; prepare status reports, manage internal audit program, and prepare FY 23-24 Internal Audit Program. (52 weeks)
 Enterprise Risk Assessment: Identify, analyze, and measure risks by the level of inherent vulnerability, the level of preparedness to mitigate them, and the impact such negative events could have on the City should they occur. This assessment serves as management’s and the internal auditor’s basis for determining possible actions for managing and mitigating uncertainty, both on an inherent and a residual basis, and informs the three-year internal audit work program. (20 weeks)  Inventory City policies in each department, identify gaps, and review policies for opportunities for update and alignment with best practices. Provide a prioritized implementation plan for policy updates. (35 weeks)
Audit Committee Recommendation
At the July 24, 2023, Audit Committee Meeting, Moss Adams proposed two projects for the FY 23-24 program, including a list of potential future projects; the committee voted to include an additional task, Grant Management Performance Audit, to the program and forward its recommendation to City Council for consideration.  Grants Management Performance Audit: Assess the City’s grant policies and procedures, application, reporting, compliance, accounting, controls, and management for efficiency and alignment with best practices. (16 weeks) The additional project requested by the committee would require an increase in budget appropriations and a third amendment to the Moss Adams contract. The additional project is not included in the staff recommendation.

Although staff recognizes the benefits of the Grants Management Performance Audit, the Finance Division workload will likely not accommodate the additional project in the same year the City is performing its first audit with a new external auditor, The Pun Group, and implementing a new Enterprise Resource Planning (ERP) software, a comprehensive Financial and Human Resource application.  FY 2023-24 Program:
o Ongoing Internal Audit Services $10,000
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o Enterprise Risk Assessment $50,000
o Citywide Policy Review & Gap Analysis $40,000
 Additional project recommended by the Audit Committee o Grants Management Performance Audit $35,000
 Potential Future Internal Audit Projects:
o IT General Controls Review
o Succession Planning Study
o Contract/Vendor Management Performance Audit
Next Steps
If City Council approves staff’s recommended internal audit program, Moss Adams will complete the recommended projects and present the audit reports to the Audit Committee for review and City Council for acceptance. The audit reports will be available on the City’s website at cupertino.org/finance under Internal Audit.

Should City Council prefer Audit Committee’s recommended Internal Audit Program, staff will return to City Council with a third Moss Adams contract amendment and resolution for additional budget appropriations at a subsequent City Council Meeting.

Sustainability Impact
No sustainability impact.

Fiscal Impact
In the FY 2022-23 Adopted Budget, the City has budgeted $100,000 for the internal audit contract in the contracts category of the accounting program. No additional appropriations are requested.
_____________________________________
Prepared by: Jonathan Orozco, Finance Manager
Reviewed by: Kristina Alfaro, Director of Administrative Services Approved for Submission by: Matt Morley, Assistant City Manager Attachments:

A – FY 23-24 Internal Audit Program
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City of Cupertino
FY 23-24 Internal Audit Program
City Council Meeting
September 19, 2023
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Agenda

1. Internal Audit Overview

2. Program Review

3. Recommended Internal Audit Plan
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• The City retained Moss Adams to serve as the
designated Internal Auditor and conduct projects
focusing on:
• Risks
• Internal controls
• Efficiency and effectiveness
• Best practices
• Compliance
• Work is being completed under appropriate industry
standards (IIA, GAGAS, AICPA)
Internal Audit Overview
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Role of Internal
Audit
4 Source: IIA
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Internal Audit Program Components
Tracking &
Reporting A Program Inputs B Opportunities C
• Enterprise
Assessments
• Employees and
Residents
• Performance
Metrics
• FWA Hotline
• Risks
• Controls
• Compliance
• Performance
• Findings &
Recommendations
• Corrective Actions
• Implementation
• Validation
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Focus Area Status
Enterprise Risk Assessments 2021
Internal Controls Projects Completed 2
Performance/Efficiency Projects
Completed
5 Policies Reviewed 17
Recommendations Delivered 52
Ethics Hotline Reports 6
Recommendations Validated To Come
Internal Audit Program Review
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1. Enterprise Risk Assessment: Identify, analyze, and measure risks by the level of inherent vulnerability, the level of preparedness to mitigate them, and the impact such negative events could have on the City should they occur. This assessment serves as management’s and the internal auditor’s basis for determining possible actions for managing and mitigating uncertainty, both on an inherent and a residual basis, and informs the three-year internal audit work program. (20 weeks, $50,000)

2. Citywide Policy Review & Gap Analysis: Inventory City policies in each department, identify gaps, and review policies for opportunities for update and alignment with best practice. Provide a prioritized implementation plan for policy update. Continue to review and provide feedback on fiscal policies at the City’s request. (52 weeks, $40,000)

3. Ongoing Internal Audit Services: Attend Audit Committee and Council meetings; prepare status reports, manage internal audit program, manage FWA hotline, and prepare annual internal audit plan. (52 weeks)
Recommended Internal Audit Plan
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The Committee recommends to Council that if additional budget is available, to approve the following project, given the importance of effective grant management in securing external funding:
• Grants Management Performance Audit: Assess the City’s grant policies and procedures, application, reporting, compliance, accounting, controls, and management for efficiency and alignment with best practices. (16 weeks, $35,000)
Audit Committee Recommended Additional Project
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9 Questions?
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The material appearing in this presentation is for informational purposes only and should not be construed as advice of any kind, including, without limitation, legal, accounting, or investment advice. This information is not intended to create, and receipt does not constitute, a legal relationship, including, but nor limited to, an accountant-client relationship. Although this information may have been prepared by professionals, it should not be used as a substitute for professional services. If legal, accounting, investment, or other professional advice is required, the services of a professional should be sought.

Assurance, tax, and consulting offered through Moss Adams LLP. Wealth management offered through Moss Adams Wealth Advisors LLC. Investment banking offered through Moss Adams Capital LLC.
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CITY OF CUPERTINO
Agenda Item
22-10884 Agenda Date: 9/19/2023
Agenda #: 9.

Subject: Adoption of amendments to the Cupertino Municipal Code, Chapter 9.22, expanding existing property maintenance requirements in accordance with California Health and Safety Code 17970.5 Conduct the first reading of Ordinance No. 23-2250: “An Ordinance of the City Council of the City of Cupertino Amending City Code Chapter 9.22 of Title 9 (Health and Sanitation) to Prohibit Substandard Housing Conditions.” Presenter: Monica Diaz, Senior Code Enforcement Officer CITY OF CUPERTINO Page 1 of 1 Printed on 9/13/2023
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CITY COUNCIL STAFF REPORT
Meeting: September 19, 2023
Subject
Adoption of amendments to the Cupertino Municipal Code, Chapter 9.22, expanding existing property maintenance requirements in accordance with California Health and Safety Code 17970.5.

Recommended Action
Conduct the first reading of Ordinance No. 23-XXX: “An Ordinance of the City Council of the City of Cupertino Amending City Code Chapter 9.22 of Title 9 (Health and Sanitation) to Prohibit Substandard Housing Conditions.” Discussion
This amendment is being brought before Council in response to a mandate from the State of California. On September 28, 2021, Governor Gavin Newsom approved Assembly Bill (AB) 838. The Bill expands existing State Housing Law related to buildings used for human occupancy with the addition of California Health and Safety Code section 17970.5 and imposes new duties on cities and counties. More specifically, it addresses substandard housing conditions. The Bill mandates that cities and counties must:
 Receive any complaint of substandard building or lead hazard violations;  Investigate the complaint and make findings through a reasonably competent and diligent visual inspection of the property;
 Conduct an inspection at least as promptly as the agency’s Building Department responds to requests for building permit final inspection;  Produce an inspection report;
 Advise the property owner or operator of violations and of corrective actions required to remedy the violations; and
 Provide free, certified copies of an inspection report and citations issued to any involved or potentially affected party.

AB 838 precludes a city or county from collecting a fee from a property owner related to such an inspection or inspection report, unless the inspection reveals one or more lead hazards or deems the property substandard pursuant to 303
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California Health and Safety Code sections 17920.3 and 17020.10. In addition, the statute prohibits a city or county from unreasonably refusing to communicate with any involved party. AB 838 became effective on July 1, 2022. Cupertino has continued to be in compliance with this State mandate.

Prior to the passing of AB 838, substandard housing inspections were not provided in many cities across the State. Cupertino was among those many cities statewide that did not provide this service to residents. The City previously only inspected on reports of life safety matters. This is an entirely new service provided to the City’s residents for the first time. Santa Clara County Public Health will continue to provide services related to lead-based paint compliance based on program qualifications.

Staff recommends that Council adopt the proposed amendments to Chapter 9.22 to codify property owners’ obligations to maintain housing stock free of substandard conditions and to allow the City to recover some of the costs of enforcement incurred as a result of AB 838 to the extent permitted by State law.

Sustainability Impact
No sustainability impacts.

Fiscal Impact
The projected impacts will be mostly absorbed by existing Code Enforcement Division resources. Some training may be necessary as this is an entirely new service provided to the City’s residents for the first time. In the first year of implementation, Code Enforcement has addressed substandard housing conditions at 10 properties. This equates to 150+ staff hours of work.

Staff recommends closely monitoring impacts to existing staffing levels on an ongoing basis for proper resource management. Staff anticipates the need to purchase some new equipment in order to conduct accurate inspections. The total cost of the equipment is estimated to be $500 at this time. The equipment includes outlet/receptacle testers, voltage tester pens, humidity/mold sensor, Personal Protective Equipment, and other such items for use during inspections.

The amendment to the municipal code will allow for some cost recovery. The City is precluded from charging fees for the initial inspection and the report created; however, the City may recover cost from repeat re-inspections caused by little or no progress with repairs or corrections. This can help offset some of the impacts to City resources. Staff will continue to work with all parties toward voluntary compliance while prioritizing healthy and safe living conditions. 304
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_____________________________________
Prepared by: Monica Diaz, Senior Code Enforcement Officer Reviewed by: Ben Fu, Community Development Director
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Ordinance amending Chapter 9.22
B – Assembly Bill 838
C – California Health and Safety Code section 17970.5
D – California Health and Safety Code section 17920.3
E – California Health and Safety Code section 17920.10
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1 ORDINANCE NO. __________________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CITY CODE CHAPTER 9.22 of Title 9 (Health and Sanitation) TO

PROHIBIT SUBSTANDARD HOUSING CONDITIONS
The City Council of the City of Cupertino finds that:

WHEREAS, the State of California has passed Assembly Bill (AB) 838. The Bill expands existing State Housing Law related to buildings used for human habitation with the addition of California Health and Safety Code section 17970.5 and imposes new duties on Cities and Counties;
WHEREAS, AB 838 requires the City respond to and address complaints involving substandard housing conditions, particularly those involving conditions which violate California Health and Safety Code sections 17920.3 et. seq., and 17920.10 et. seq.; WHEREAS, The City is committed to the prevention and elimination of blight and slum conditions. With the passage of AB 838, the City will have the ability to provide additional health and safety services and thus ensure housing conditions remain standardized for its residency.

NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:

SECTION 1. Adoption.

The Cupertino Municipal Code is hereby amended as set forth in Attachment A.

SECTION 2: Severability and Continuity.

The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, the City Council declares that it would have adopted 306
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Ordinance No. __________

Page 2 ends

the remaining provisions of this ordinance irrespective of such portion, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. To the extent the provisions of this Ordinance are substantially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as an amendment to or readoption of the earlier provisions.

SECTION 3: California Environmental Quality Act.

This Ordinance 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 Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility 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. The foregoing determination is made by the City Council in its independent judgment.

SECTION 4: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.

SECTION 5: Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

Pursuant to Government Code Section 36933, a summary of this Ordinance may be prepared by the City Clerk and published in lieu of publication of the entire text. The City Clerk shall post in the office of the City Clerk a certified copy of the full text of the Ordinance listing the names of the City Council members voting for and against the ordinance.

INTRODUCED at a regular meeting of the Cupertino City Council on [September 19, 2023] and ENACTED at a regular meeting of the Cupertino City Council on [_______________] by the following vote:

Members of the City Council
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Ordinance No. __________

Page 3 ends

AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
______________________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
_______________________
Kirsten Squarcia, City Clerk

________________________
Date
APPROVED AS TO FORM:
_______________________
Christopher D. Jensen, City Attorney
________________________
Date
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Attachment A – Page 1
Attachment A – An Ordinance of the City Council of the City of Cupertino establishing property maintenance standards and prohibiting substandard housing conditions.

The sections of the Cupertino Municipal Code set forth below are adopted as follows:

9.22.060 Substandard Housing Conditions Prohibited.

(A)No property owner(s), agent(s), lessee(s), responsible party, any other person(s) or entity having control of, or control over the occupancy of any real property (including City property) within the City shall maintain or allow to be maintained any of the following conditions:
(1) Any building, residence and/or structure, or portion thereof, used for human occupancy in substandard condition, as defined by California Health and Safety Code section 17920.3 et. seq.
(2) Any building, residence and/or structure, or portion thereof, used for human occupancy to create a hazardous condition or environment, as defined by California Health and Safety Code section 17920.10 et. seq. (B) Fees.
(1) Upon receiving a formal notification of any substandard housing violations in accordance with Chapter 1.10, the owner(s), agent(s), lessee(s), responsible party(s), and any other person(s) or entity having control of, or control over the occupancy of any real property shall be jointly responsible to cure the violations by completing any required corrective actions or measures as listed and shall be jointly and severally liable for any liability arising from a violation of this section. (2) Upon deadline lapse and after one (1) re-inspection after which there was no progress noted, the City Manager or their designee may require a re-inspection fee, which may be established by a resolution of the City Council. (3) Nothing herein shall preclude the City Council from imposing additional fees to pay the cost of administering this section; provided, however, that no fee shall be charged for the inspection of or any inspection report about any property done or prepared pursuant to this section unless the inspection reveals one or more material violations of Health & Safety Code section 17920.10 or deems and 309
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Ordinance No. __________

Page 2 ends

[Brief Description]- Page 2
declares the property substandard pursuant to Health & Safety Code section 17920.3.
(C) Enforcement. Notwithstanding the provisions of section 9.22.030, any person who violates the provisions of this section shall be subject to enforcement under Chapter 1.10, including but not limited to section 1.10.070 (C), and to prosecution under Chapter 1.12.
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SHARE THIS: Date Published: 09/29/2021 02:00 PM
AB-838 State Housing Law: enforcement response to complaints. (2021-2022) Assembly Bill No. 838
CHAPTER 351
An act to add Section 17970.5 to the Health and Safety Code, relating to building standards. [ Approved by Governor September 28, 2021. Filed with Secretary of State September 28, 2021. ]

LEGISLATIVE COUNSEL'S DIGEST
AB 838, Friedman. State Housing Law: enforcement response to complaints.

Existing law, the State Housing Law, a violation of which is a crime, establishes statewide construction and occupancy standards for buildings used for human habitation. Existing law authorizes a city or county to designate and charge a specified department or officer with the enforcement of the State Housing Law, the building standards published in the California Building Standards Code, or any other rules and regulations adopted pursuant to the State Housing Law for the protection of the public health, safety, and general welfare.

Existing law deems a building, portion of a building, or premises on which a building is located to be a substandard building if any one of specified conditions exists to the extent that it endangers the life, limb, health, property, safety, or welfare of the public or its occupants. Existing law deems a building, portion of a building, or premises on which a building is located to be in violation of the State Housing Law if it contains lead hazards, as specified, that are likely to endanger the health of the public or the occupants.

This bill would, beginning July 1, 2022, require a city or county that receives a complaint of a substandard building or a lead hazard violation, as described above, from a tenant, resident, or occupant, or an agent of a tenant, resident, or occupant, except as specified, to inspect the building, portion of the building intended for human occupancy, or premises of the building, document the lead hazard violations that would be discovered based upon a reasonably competent and diligent visual inspection of the property, and identify any building, portion of a building intended for human occupancy, or premises on which such a building is located that is determined to be substandard, as applicable. The bill would require the city or county, as applicable, to advise the owner or operator of each violation and of each action that is required to be taken to remedy the violation and to schedule a reinspection to verify correction of the violations. The bill would require a city or county to provide free, certified copies of an inspection report and citations issued, if any, to the complaining tenant, resident, occupant, or agent, and to all potentially affected tenants, residents, occupants, or the agents of those individuals, as specified. The bill would prohibit the inspection or the report from being subject to any unreasonable conditions, as specified, and prohibit a city, county, or city and county from collecting a fee, cost, or charge from a property owner or property owner's agent for any inspection of, or any inspection report about, that owner’s or agent’s property that is conducted or issued pursuant to the bill’s provisions, unless the inspection reveals one or more material lead hazard violations or deems and declares the property substandard, Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites 311
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as described above. The bill would prohibit a city or county from unreasonably refusing to communicate with a tenant, resident, occupant, or agent regarding a matter covered by this bill.

By imposing new duties on local government officials, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for specified reasons.

Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 17970.5 is added to the Health and Safety Code, to read:
17970.5. (a) Notwithstanding any other provision of this part, a city or county that receives a complaint from a tenant, resident, or occupant, or an agent of a tenant, resident, or occupant, regarding a potential violation of Section 17920.10 or regarding a building being substandard pursuant to Section 17920.3 shall do all of the following:
(1) Inspect the building or portion thereof intended for human occupancy, including any dwelling unit, guestroom, or suite of rooms, or the premises on which it is located, that may be in violation of Section 17920.10 or that may be substandard pursuant to Section 17920.3. (2) Document any violations of Section 17920.10 that would be discovered based upon a reasonably competent and diligent visual inspection of the property and identify any building or portion thereof intended for human occupancy, including any dwelling unit, guestroom, or suite of rooms, or the premises on which it is located, that is determined to be substandard pursuant to Section 17920.3, as applicable. The documentation shall be included in the inspection report described in subdivision (d). (3) As applicable, advise the owner or operator of each violation and of each action that is required to be taken to remedy the violation and schedule a reinspection to verify correction of the violations. (b) A city or county shall perform an inspection conducted pursuant to subdivision (a) at least as promptly as that city or county conducts an inspection in response to a request for final inspection pursuant to Section 110 of the California Building Code.
(c) Notwithstanding subdivisions (a) and (b), a city or county is not required to conduct an inspection in response to either of the following types of complaints:
(1) A complaint that does not allege one or more substandard conditions. (2) A complaint submitted by a tenant, resident, or occupant who, within the past 180 days, submitted a complaint about the same property that the chief building inspector or their designee reasonably determined, after inspection, was frivolous or unfounded.
(d) A city or county shall provide free, certified copies of an inspection report and citations issued pursuant to this section, if any, to the complaining tenant, resident, occupant, or their agent. If inspection reveals a condition potentially affecting multiple tenants, residents, or occupants, including, but not limited to, conditions relating to the premises, common areas, or structural features, then the city or county shall provide free copies of the inspection report and citations issued to all potentially affected tenants, residents, occupants, or their agents. (e) A city, county, or city and county shall not collect a fee, cost, or charge from a property owner or property owner’s agent for any inspection of, or any inspection report about, that owner’s or agent’s property that is conducted or issued pursuant to this section, unless the inspection reveals one or more material violations of Section 17920.10 or deems and declares the property substandard pursuant to Section 17920.3. (f) Nothing in this section limits or alters the existing authority of a city, county, or city and county to impose fees on rental property owners to support a rental property inspection program, or to otherwise impose generally applicable charges, fees, or assessments to cover the costs of inspections or inspection reports required by this section.
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(g) An inspection or report required by this section shall not be subject to any unreasonable conditions, including any requirements that:
(1) The tenant, resident, occupant, or agent first make a demand for correction upon the owner of the property.
(2) The tenant be current on rent.
(3) The tenant otherwise be in compliance with their rental agreement. (4) The tenant, resident, or occupant not be involved in a legal dispute with the owner of the property. (h) A city or county shall not unreasonably refuse to communicate with a tenant, resident, occupant, or the agent of a tenant, resident, or occupant regarding any matter covered by this section. (i) The requirements of this section shall not be construed to impose a mandatory duty pursuant to Section 815.6 of the Government Code, and shall not be construed to affect the availability of any immunity otherwise applicable to the city or county or its employees, including, but not limited to, Sections 818.2, 818.4, 818.6, 820.2, 821, 821.2, and 821.4 of the Government Code.
(j) (1) An action to enforce the requirements of this section shall be brought pursuant to Section 1085 of the Code of Civil Procedure.
(2) For purposes of Section 1085 of the Code of Civil Procedure, the requirements of this section shall be construed as acts which the law specially enjoins, as a duty resulting from an office, trust, or station. (k) This section shall become operative July 1, 2022.

SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code, and because the only other costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution. 313
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DIVISION 13. HOUSING [17000 - 19997] ( Division 13 enacted by Stats. 1939, Ch. 60. ) PART 1.5. REGULATION OF BUILDINGS USED FOR HUMAN HABITATION [17910 - 17998.3] ( Part

1.5 added by Stats. 1961, Ch. 1844. )
CHAPTER 5. Administration and Enforcement [17960 - 17992] ( Chapter 5 added by Stats. 1961, Ch. 1844. )
17970.5.

HEALTH AND SAFETY CODE - HSC
ARTICLE 2. Inspection [17970 - 17972] ( Article 2 added by Stats. 1961, Ch. 1844. ) (a) Notwithstanding any other provision of this part, a city or county that receives a complaint from a tenant, resident, or occupant, or an agent of a tenant, resident, or occupant, regarding a potential violation of Section 17920.10 or regarding a building being substandard pursuant to Section 17920.3 shall do all of the following:
(1) Inspect the building or portion thereof intended for human occupancy, including any dwelling unit, guestroom, or suite of rooms, or the premises on which it is located, that may be in violation of Section 17920.10 or that may be substandard pursuant to Section 17920.3. (2) Document any violations of Section 17920.10 that would be discovered based upon a reasonably competent and diligent visual inspection of the property and identify any building or portion thereof intended for human occupancy, including any dwelling unit, guestroom, or suite of rooms, or the premises on which it is located, that is determined to be substandard pursuant to Section 17920.3, as applicable. The documentation shall be included in the inspection report described in subdivision (d). (3) As applicable, advise the owner or operator of each violation and of each action that is required to be taken to remedy the violation and schedule a reinspection to verify correction of the violations. (b) A city or county shall perform an inspection conducted pursuant to subdivision (a) at least as promptly as that city or county conducts an inspection in response to a request for final inspection pursuant to Section 110 of the California Building Code. (c) Notwithstanding subdivisions (a) and (b), a city or county is not required to conduct an inspection in response to either of the following types of complaints:
(1) A complaint that does not allege one or more substandard conditions. (2) A complaint submitted by a tenant, resident, or occupant who, within the past 180 days, submitted a complaint about the same property that the chief building inspector or their designee reasonably determined, after inspection, was frivolous or unfounded. (d) A city or county shall provide free, certified copies of an inspection report and citations issued pursuant to this section, if any, to the complaining tenant, resident, occupant, or their agent. If inspection reveals a condition potentially affecting multiple tenants, residents, or occupants, including, but not limited to, conditions relating to the premises, common areas, or structural features, then the city or county shall provide free copies of the inspection report and citations issued to all potentially affected tenants, residents, occupants, or their agents. (e) A city, county, or city and county shall not collect a fee, cost, or charge from a property owner or property owner’s agent for any inspection of, or any inspection report about, that owner’s or agent’s property that is conducted or issued pursuant to this section, unless the inspection reveals one or more material violations of Section 17920.10 or deems and declares the property substandard pursuant to Section 17920.3. (f) Nothing in this section limits or alters the existing authority of a city, county, or city and county to impose fees on rental property owners to support a rental property inspection program, or to otherwise impose generally applicable charges, fees, or assessments to cover the costs of inspections or inspection reports required by this section. (g) An inspection or report required by this section shall not be subject to any unreasonable conditions, including any requirements that:
(1) The tenant, resident, occupant, or agent first make a demand for correction upon the owner of the property. (2) The tenant be current on rent.
(3) The tenant otherwise be in compliance with their rental agreement. 314
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(4) The tenant, resident, or occupant not be involved in a legal dispute with the owner of the property. (h) A city or county shall not unreasonably refuse to communicate with a tenant, resident, occupant, or the agent of a tenant, resident, or occupant regarding any matter covered by this section.
(i) The requirements of this section shall not be construed to impose a mandatory duty pursuant to Section 815.6 of the Government Code, and shall not be construed to affect the availability of any immunity otherwise applicable to the city or county or its employees, including, but not limited to, Sections 818.2, 818.4, 818.6, 820.2, 821, 821.2, and 821.4 of the Government Code. (j) (1) An action to enforce the requirements of this section shall be brought pursuant to Section 1085 of the Code of Civil Procedure. (2) For purposes of Section 1085 of the Code of Civil Procedure, the requirements of this section shall be construed as acts which the law specially enjoins, as a duty resulting from an office, trust, or station. (k) This section shall become operative July 1, 2022.
(Added by Stats. 2021, Ch. 351, Sec. 1. (AB 838) Effective January 1, 2022. Operative July 1, 2022, by its own provisions.) 315
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DIVISION 13. HOUSING [17000 - 19997] ( Division 13 enacted by Stats. 1939, Ch. 60. ) PART 1.5. REGULATION OF BUILDINGS USED FOR HUMAN HABITATION [17910 - 17998.3] ( Part

1.5 added by Stats. 1961, Ch. 1844. )
17920.3.

HEALTH AND SAFETY CODE - HSC
CHAPTER 2. Rules and Regulations [17920 - 17929] ( Chapter 2 added by Stats. 1961, Ch. 1844. ) Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building:
(a) Inadequate sanitation shall include, but not be limited to, the following:
(1) Lack of, or improper water closet, lavatory, or bathtub or shower in a dwelling unit. (2) Lack of, or improper water closets, lavatories, and bathtubs or showers per number of guests in a hotel. (3) Lack of, or improper kitchen sink.
(4) Lack of hot and cold running water to plumbing fixtures in a hotel. (5) Lack of hot and cold running water to plumbing fixtures in a dwelling unit. (6) Lack of adequate heating.
(7) Lack of, or improper operation of required ventilating equipment. (8) Lack of minimum amounts of natural light and ventilation required by this code. (9) Room and space dimensions less than required by this code. (10) Lack of required electrical lighting.
(11) Dampness of habitable rooms.
(12) Infestation of insects, vermin, or rodents as determined by a health officer or, if an agreement does not exist with an agency that has a health officer, the infestation can be determined by a code enforcement officer, as defined in Section 829.5 of the Penal Code, upon successful completion of a course of study in the appropriate subject matter as determined by the local jurisdiction. (13) Visible mold growth, as determined by a health officer or a code enforcement officer, as defined in Section 829.5 of the Penal Code, excluding the presence of mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use. (14) General dilapidation or improper maintenance.
(15) Lack of connection to required sewage disposal system. (16) Lack of adequate garbage and rubbish storage and removal facilities, as determined by a health officer or, if an agreement does not exist with an agency that has a health officer, the lack of adequate garbage and rubbish removal facilities can be determined by a code enforcement officer as defined in Section 829.5 of the Penal Code.
(b) Structural hazards shall include, but not be limited to, the following:
(1) Deteriorated or inadequate foundations.
(2) Defective or deteriorated flooring or floor supports. (3) Flooring or floor supports of insufficient size to carry imposed loads with safety. 316
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(4) Members of walls, partitions, or other vertical supports that split, lean, list, or buckle due to defective material or deterioration. (5) Members of walls, partitions, or other vertical supports that are of insufficient size to carry imposed loads with safety. (6) Members of ceilings, roofs, ceiling and roof supports, or other horizontal members which sag, split, or buckle due to defective material or deterioration.
(7) Members of ceilings, roofs, ceiling and roof supports, or other horizontal members that are of insufficient size to carry imposed loads with safety.
(8) Fireplaces or chimneys which list, bulge, or settle due to defective material or deterioration. (9) Fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety. (c) Any nuisance.
(d) All wiring, except that which conformed with all applicable laws in effect at the time of installation if it is currently in good and safe condition and working properly.
(e) All plumbing, except plumbing that conformed with all applicable laws in effect at the time of installation and has been maintained in good condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly, and that is free of cross connections and siphonage between fixtures. (f) All mechanical equipment, including vents, except equipment that conformed with all applicable laws in effect at the time of installation and that has been maintained in good and safe condition, or that may not have conformed with all applicable laws in effect at the time of installation but is currently in good and safe condition and working properly. (g) Faulty weather protection, which shall include, but not be limited to, the following:
(1) Deteriorated, crumbling, or loose plaster.
(2) Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations, or floors, including broken windows or doors. (3) Defective or lack of weather protection for exterior wall coverings, including lack of paint, or weathering due to lack of paint or other approved protective covering.
(4) Broken, rotted, split, or buckled exterior wall coverings or roof coverings. (h) Any building or portion thereof, device, apparatus, equipment, combustible waste, or vegetation that, in the opinion of the chief of the fire department or his deputy, is in such a condition as to cause a fire or explosion or provide a ready fuel to augment the spread and intensity of fire or explosion arising from any cause.
(i) All materials of construction, except those that are specifically allowed or approved by this code, and that have been adequately maintained in good and safe condition.
(j) Those premises on which an accumulation of weeds, vegetation, junk, dead organic matter, debris, garbage, offal, rodent harborages, stagnant water, combustible materials, and similar materials or conditions constitute fire, health, or safety hazards. (k) Any building or portion thereof that is determined to be an unsafe building due to inadequate maintenance, in accordance with the latest edition of the Uniform Building Code.
(l) All buildings or portions thereof not provided with adequate exit facilities as required by this code, except those buildings or portions thereof whose exit facilities conformed with all applicable laws at the time of their construction and that have been adequately maintained and increased in relation to any increase in occupant load, alteration or addition, or any change in occupancy.

When an unsafe condition exists through lack of, or improper location of, exits, additional exits may be required to be installed. (m) All buildings or portions thereof that are not provided with the fire-resistive construction or fire-extinguishing systems or equipment required by this code, except those buildings or portions thereof that conformed with all applicable laws at the time of their construction and whose fire-resistive integrity and fire-extinguishing systems or equipment have been adequately maintained and improved in relation to any increase in occupant load, alteration or addition, or any change in occupancy.
(n) All buildings or portions thereof occupied for living, sleeping, cooking, or dining purposes that were not designed or intended to be used for those occupancies.
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(o) Inadequate structural resistance to horizontal forces. “Substandard building” includes a building not in compliance with Section 13143.2.

However, a condition that would require displacement of sound walls or ceilings to meet height, length, or width requirements for ceilings, rooms, and dwelling units shall not by itself be considered sufficient existence of dangerous conditions making a building a substandard building, unless the building was constructed, altered, or converted in violation of those requirements in effect at the time of construction, alteration, or conversion. (Amended by Stats. 2015, Ch. 720, Sec. 3. (SB 655) Effective January 1, 2016.) 318
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DIVISION 13. HOUSING [17000 - 19997] ( Division 13 enacted by Stats. 1939, Ch. 60. ) PART 1.5. REGULATION OF BUILDINGS USED FOR HUMAN HABITATION [17910 - 17998.3] ( Part

1.5 added by Stats. 1961, Ch. 1844. )
17920.10.

HEALTH AND SAFETY CODE - HSC
CHAPTER 2. Rules and Regulations [17920 - 17929] ( Chapter 2 added by Stats. 1961, Ch. 1844. ) (a) Any building or portion thereof including any dwelling unit, guestroom, or suite of rooms, or portion thereof, or the premises on which it is located, is deemed to be in violation of this part as to any portion that contains lead hazards. For purposes of this part, “lead hazards” means deteriorated lead-based paint, lead-contaminated dust, lead-contaminated soil, or disturbing lead-based paint without containment, if one or more of these hazards are present in one or more locations in amounts that are equal to or exceed the amounts of lead established for these terms in Chapter 8 (commencing with Section 35001) of Division 1 of Title 17 of the California Code of Regulations or by this section and that are likely to endanger the health of the public or the occupants thereof as a result of their proximity to the public or the occupants thereof.
(b) In the absence of new regulations adopted by the State Department of Health Services in accordance with the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) further interpreting or clarifying the terms “deteriorated lead-based paint,” “lead-based paint,” “lead-contaminated dust,” “containment,” or “leadcontaminated soil,” regulations in Chapter 8 (commencing with Section 35001) of Division 1 of Title 17 of the California Code of Regulations adopted by the State Department of Health Services pursuant to Sections 105250 and 124150 shall interpret or clarify these terms. If the State Department of Health Services adopts new regulations defining these terms, the new regulations shall supersede the prior regulations for the purposes of this part.
(c) In the absence of new regulations adopted by the State Department of Health Services in accordance with the rulemaking provisions of the Administrative Procedure Act defining the term “disturbing lead-based paint without containment” or modifying the term “deteriorated lead-based paint,” for purposes of this part “disturbing lead-based paint without containment” and “deteriorated lead-based paint” shall be considered lead hazards as described in subdivision (a) only if the aggregate affected area is equal to or in excess of one of the following:
(1) Two square feet in any one interior room or space.
(2) Twenty square feet on exterior surfaces.
(3) Ten percent of the surface area on the interior or exterior type of component with a small surface area. Examples include window sills, baseboards, and trim.
(d) Notwithstanding subdivision (c), “disturbing lead-based paint without containment” and “deteriorated lead-based paint” shall be considered lead hazards, for purposes of this part, if it is determined that an area smaller than those specified in subdivision (c) is associated with a person with a blood lead level equal to or greater than 10 micrograms per deciliter. (e) If the State Department of Health Services adopts regulations defining or redefining the terms “deteriorated lead-based paint,” “leadcontaminated dust,” “lead-contaminated soil,” “disturbing lead-based paint without containment,” “containment,” or “lead-based paint,” the effective date of the new regulations shall be deferred for a minimum of three months after their approval by the Office of Administrative Law and the regulations shall take effect on the next July 1 or January 1 following that three-month period. Until the new definitions apply, the prior definition shall apply.
(Added by Stats. 2002, Ch. 931, Sec. 1.5. Effective January 1, 2003.) 319
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CITY OF CUPERTINO
Agenda Item
22-11593 Agenda Date: 9/19/2023
Agenda #: 10.

Subject: Amendments to the Cupertino Municipal Code Chapter 5.50 of Title 5 (Business Licenses and Regulations), regulating the sale of tobacco products
Conduct the first reading of Ordinance No. 23-2251: “An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 to Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products"
Presenter: Christopher Jensen, City Attorney
CITY OF CUPERTINO Page 1 of 1 Printed on 9/13/2023
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CITY COUNCIL STAFF REPORT
Meeting: September 19, 2023
Subject
Amendments to the Cupertino Municipal Code Chapter 5.50 of Title 5 (Business Licenses and Regulations), regulating the sale of tobacco products.

Recommended Action
Conduct the first reading of Ordinance No. 23-____: “An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 to Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products.

Reason for Recommendation
Tobacco use remains the number one preventable cause of death and disease in California, causing nearly 40,000 deaths in California every year. In Santa Clara County, one in eight deaths annually is attributed to smoking-related illness or diseases, such as cancer, heart disease, and respiratory diseases. More than one in ten youth in the County currently use tobacco products, including electronic smoking devices, and nearly 1 in 3 Santa Clara County teens report that they have used an e-cigarette at least once.

On November 19, 2019, the City of Cupertino adopted Ordinance No. 19-2190, which established that any retailer selling tobacco products would be required to obtain and annually renew a tobacco retailer permit (TRP) to continue selling tobacco in Cupertino. This ordinance was adopted with the understanding that Santa Clara County’s Department of Environmental Health (DEH) would administer, implement, and enforce Cupertino’s ordinance. DEH’s efforts would include monitoring retailers for compliance with tobacco control laws and decoy operations to determine if retailers are illegally selling tobacco products to underage individuals. The specific roles, responsibilities, and protocols for such administration and enforcement were established in an Agreement (Attachment A) between the City and the County. Notably, the County provides these services at no expense to the City. The agreement states that the County’s administration and enforcement under this Agreement is contingent upon the City’s adoption and maintenance of a City Ordinance that is the same as the County Ordinance in all material respects. 321
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2 Discussion
On September 13, 2022, the Santa Clara County Board of Supervisors approved an update to the County Ordinance regarding enforcement changes to the TRP. In order for the City to continue its partnership with the County pertaining to the administration and enforcement, Cupertino must also adopt policy changes similar to those adopted by Santa Clara County. These updates aim to improve enforcement and reduce retailer violations by increasing fines and strengthening consequences for frequent violations. These updates are outlined in the redline draft (Attachment B).

Staff sent individual letters to all tobacco retailers in Cupertino (Attachment D) outlining the following proposed changes:

1. Establish fines of up to $2,500 and up to a 180-day suspension of the business’s TRP permit for a second violation of the TRP ordinance within a 5-year period.

2. Require the permanent removal of a TRP for a third violation within a 5-year period. Any business continuing to sell tobacco products after TRP revocation will be subject to additional fines.

3. Increase fines and penalties for retailers operating without a valid permit as follows:
• Fines up to $2,500 and 30 days of ineligibility for an initial violation. • Fines up to $5,000 and one year of ineligibility for a second violation within a fiveyear period. • Fines up to $10,000 and permanent TRP ineligibility for each subsequent violation within a five-year period.

4. Require businesses that have their TRP suspended to post a prominent public notice at their business during the entire suspension period.

5. Require businesses, as a condition of its TRP, to (1) consent to inspection by the County of all areas and records; and (2) comply with any impound or seizure order issued by the County. Violations of these provisions would be a basis for suspension/revocation of a TRP.

6. Require that if inspections reveal noncompliance with any of the ordinance requirements, such that reinspection is needed to determine compliance, the cost of such reinspection will be billed to the retailer.

7. Clarify that a retailer is liable for all enforcement-related fees and costs.

8. Make explicit that all tobacco retailers are responsible for the actions of their employees relating to the sale and furnishing of tobacco products at the retail location, and that nothing in the ordinance shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in tobacco retailing.

9. Requires businesses to examine an individual’s identification to confirm the age of that person, regardless of appearance, prior to selling tobacco products to any person.

California Environmental Quality Act
Not applicable.
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3 Sustainability Impact
No impact.

Fiscal Impact
If the City adopts the County’s updated regulations, the County will continue to enforce the City’s program at no cost to the City. The County would recover costs through the Tobacco Retailer Permit fee and additional fines.
_____________________________________
Prepared by: Astrid Robles, Senior Management Analyst
Reviewed by: Tina Kapoor, Deputy City Manager
Matt Morley, Assistant City Manager
Chris Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Agreement Between the County and Cupertino for a Tobacco Retail Permit Program B – Draft Ordinance to Update the Tobacco Retail Permit – Redline C – Draft Ordinance to Update the Tobacco Retail Permit – Clean D – Letter to Tobacco Retailers in Cupertino
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No-Cost Agreement Cover Sheet
New Form Effective July 2019 1
Date of Submission:

Attach to agreement and submit for approval via email to: [email protected] SECTION I: GENERAL INFORMATION
New Amendment Inter-Governmental: Non-Governmental (attach approved exemption form
:

IT-Related (TSS approval must be attached): Non-IT Related Pilot Project (attach approved exemption form):

Agency/Department Name: Budget Unit:

Brief Description of
Services:

Term of Agreement (If no specified term,
executive approval required):

Start Date: End Date:

SECTION II: PARTIES TO AGREEMENT

COUNTY OF SANTA CLARA NON-COUNTY ENTITY
Agency/Department: Name:

Contract Monitor Name: Contact Person:

Street Address: Street Address:

City, State, Zip City, State, Zip
Telephone Number: Telephone Number:

Fiscal/Requisitioner
Contact:

Email:

Agreement Preparer:

SECTION III: PROCUREMENT METHOD
Board Specified (Attach approved Board Leg File) Leg File #:

Exemption (Attach Pre-Approval from Procurement)
June 17, 2020
Public Health 410
This is a no-cost agreement between County and City of Cupertino to allow the County to operate the City’s Tobacco Retail Permit (TRP) program. The program involves permit administration, retailer education, compliance checks and enforcement. This program will be on-going as long as Cupertino’s tobacco retail permit ordinance mirrors the requirements of the County TRP ordinance.

On-going
Public Health City of Cupertino
Nicole Coxe Katy Nomura, Assistant to the City Manager
1775 Story Road, Suite 120 10300 Torre Avenue
San Jose, CA 95122 Cupertino, CA 95014
408-817-6844 408-777-4844
Sagar Dholakia [email protected]
Paula Lacey
✔ ✔
✔

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AGREEMENT BETWEEN

THE COUNTY OF SANTA CLARA

AND CITY OF CUPERTINO FOR

A TOBACCO RETAIL PERMIT PROGRAM
This Agreement is entered into by and between the County of Santa Clara (“County”) and City of Cupertino (“City”) relating to administration and enforcement of a tobacco retail permit program in the City of Cupertino. County and City may be referred to in this Agreement individually as a “Party” and collectively as “Parties.” Background / Purpose
In 2010, the County adopted an ordinance establishing a permit requirement for retailers of tobacco products in the unincorporated areas of the County of Santa Clara (“County Ordinance”). The County has since expanded and modified the County Ordinance, which is currently codified in Chapter XXII of Division B11 of the County Ordinance Code. On February 18, 2020, the City adopted an ordinance to mirror the substantive provisions of the County Ordinance, which is currently codified in Chapter 5.50 of the Cupertino Municipal Code (“City Ordinance”). The City and County intend for the County to administer and enforce the City’s tobacco retail permit program within the City, except as otherwise provided in this Agreement.

The County intends to cite violators of the City’s Ordinance Code pursuant to this Agreement.

Agreement
The Parties agree as follows:

1. Designation
The City hereby designates the County to enforce and administer the City Ordinance.

The County shall act as the City’s designee, as defined in section 5.50.020(b) of the City Ordinance.

2. Scope of Work
Each Party shall perform the work as described in Exhibit A, attached hereto and incorporated herein by this reference.

3. Legislative Consistency
The County’s administration and enforcement under this Agreement is contingent upon the City’s adoption and maintenance of a City Ordinance that is the same as the County Ordinance in all material respects.

3.1 Within 90 days of the County’s adoption of any material amendment to the County Ordinance, the City’s governing body shall consider and vote upon an amendment to the City Ordinance that is the same as the County’s

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amendment in all material respects. If the City does not adopt such an amendment within 90 days of the County’s amendment to the County Ordinance, the County may, in its sole discretion, immediately terminate this Agreement by sending written notice to the City.

3.2 If the City wishes to amend the City Ordinance other than to conform to the County’s prior amendment of the County Ordinance as set forth in Paragraph 3.1 above, the City shall provide the County with the full text of the proposed amendment 120 days prior to adoption of such an amendment. If the City adopts an amendment to the City Ordinance other than to conform in all material respects to the County’s prior amendment of the County Ordinance, the County may, in its sole discretion, immediately terminate this Agreement by sending written notice to the City.

3.3 The County shall have no responsibility for administering or enforcing any provisions of the City Ordinance that are in addition to or otherwise materially different from the County Ordinance.

3.4 The Parties agree that the County Ordinance and City Ordinance effective on the date of this Agreement are the same in all material respects.

4. Relationship of Parties / Independent Contractors
Each Party shall perform all work described herein as an independent contractor and not as an officer, agent, servant or employee of the other Party. None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between the Parties other than that of independent parties contracting with each other for purpose of effecting the provisions of this Agreement. The Parties are not, and shall not be construed to be, in a relationship of joint venture, partnership or employer-employee. Neither Party has the authority to make any statements, representations or commitments of any kind on behalf of the other Party, or to use the name of the other Party in any publications or advertisements, except with the written consent of the other Party or as is explicitly provided herein. Each Party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors, if any.

5. Term of Agreement
This Agreement is effective from the date that this Agreement is executed by all Parties, until terminated in accordance with this Agreement.

6. Payment
The City shall adopt, by reference, the County’s fee schedule for annual tobacco retail permits and tobacco retail permit applications. All annual permit fees and application

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fees for the tobacco retail permit program shall be collected and retained by the County.

The County shall advise City of the initial permit fee and application fee necessary to cover County’s anticipated costs under this Agreement. Thereafter, the County shall provide notice to the City and tobacco retail permit holders in the City of any increases or decreases in the cost of the County’s work under this Agreement and any need to revise permit fees and/or application fees accordingly.

7. Termination
Except as provided in paragraphs 3.1 and 3.2 above, which allow for immediate termination in the specified circumstances, either Party may terminate this Agreement for any reason upon ninety (90) days’ written notice. Upon service of a termination notice, the Parties shall use their best efforts to develop a mutually agreeable plan for transition of the County’s responsibilities to the City. Upon termination of this Agreement, the City shall be responsible for replacing the County-issued permits.

8. Indemnification and Insurance
The City shall indemnify, defend, and hold harmless the County, its officers, agents, and employees from any claim, liability, loss, injury, or damage arising out of, or in connection with, performance of this Agreement by the City and/or its agents, employees, or sub-contractors, excepting only loss, injury, or damage caused by the sole gross negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this Agreement to provide the broadest possible coverage for County. The City shall reimburse the County for all costs, attorneys’ fees, expenses, and liabilities incurred with respect to any litigation in which the City contests its obligation to indemnify, defend, and/or hold harmless the County under this Agreement and does not prevail in that contest.

Without limiting the indemnification both Parties shall maintain or cause to be maintained the following insurance coverage: (1) a policy of commercial general liability with limits of liability not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate; (ii) a policy of workers’ compensation providing statutory coverage; (iii) a policy of professional or public officials errors and omissions liability with limits of liability not less than one million dollars ($1,000,000) per occurrence/aggregate; and (iv) such other insurance or self-insurance as shall be necessary to insure it against any claim or claims for damages arising under the Agreement. Each Party’s insurance afforded by the commercial general liability policy shall be endorsed to provide coverage to the other Party as an additional insured. Each Party shall provide a Certificate of Insurance certifying that coverage as required herein has been obtained to the other Party. The requirements of this section may be satisfied by the provision of similar coverage through a self-insurance program.

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9. Compliance with All Laws, Rules, Regulations, Policies and Procedures The Parties shall comply with all applicable federal, state, and local laws, rules, regulations, policies, and procedures.

10. Monitoring / Records

10.1 Monitoring
Each Party shall permit the other Party to monitor its performance of this Agreement. To the extent permitted by law, such monitoring may include, but not be limited to, audits and review of records related to this Agreement. Upon request, a Party shall provide the other Party with access to facilities, financial, and employee records that are related to the purpose of the Agreement, except where prohibited by federal, state, or local laws, regulations, or rules. Monitoring shall be permitted at any time during normal business hours upon no less than 10 business days advance notice and may occur up to one year following termination of the Agreement.

Each Party shall designate a project director/coordinator responsible for overseeing that Party’s performance of this Agreement. Each Party shall notify the other Party in writing of the designation of the project director/coordinator and of any change thereto.

10.2 California Public Records Act
The Parties are public agencies subject to the disclosure requirements of the California Public Records Act (“CPRA”). In the event of a CPRA request for information related to this Agreement, each Party shall use its best efforts to notify the other Party before such disclosure.

11. Conflict of Interest
Both Parties shall comply, and require its subcontractors to comply, with all applicable: (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.). Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by either Party.

In accepting this Agreement, each Party covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement.

Each Party further covenants that, in the performance of this Agreement, it shall not employ any contractor or person having such an interest. Each Party, including

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but not limited to each Party’s employees and subcontractors, may be subject to the disclosure and disqualification provisions of the California Political Reform Act of 1974 (the “Act”), that (1) requires such persons to disclose economic interests that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will foreseeably financially affect such interests. If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, each Party shall, upon execution of this Agreement, provide the other Party with the names, description of individual duties to be performed, and email addresses of all individuals, including but not limited to the Party’s employees, agents and subcontractors, that could be substantively involved in “making a governmental decision” or “serving in a staff capacity and in that capacity participating in making governmental decisions or performing duties that would be performed by an individual in a designated position,” (2 CCR 18701(a)(2)), as part of the Party’s service to the other Party under this Agreement. Each Party shall immediately notify the other Party of the names and email addresses of any additional individuals later assigned to provide such service under this Agreement in such a capacity. Each Party shall immediately notify the other Party of the names of individuals working in such a capacity who, during the course of the Agreement, end their service to the Party providing notice.

If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, each Party shall ensure that all such individuals identified pursuant to this section understand that they are subject to the Act and shall conform to all requirements of the Act and other laws and regulations listed in this subsection including, as required, filing of Statements of Economic Interests within 30 days of commencing service pursuant to this Agreement, annually by April 1, and within 30 days of their termination of service pursuant to this Agreement.

12. Authority
Each individual executing this Agreement on behalf of a Party represents that he or she is duly authorized to execute and deliver this Agreement on that Party’s behalf.

13. Assignment, Delegation, Subcontracting
Neither Party may assign any of its rights, delegate any of its duties, or subcontract any portion of its work or business under this Agreement without the prior written consent of the other Party, which such other Party may withhold in its sole and absolute discretion.

No assignment, delegation, or subcontracting shall release a Party from any of its obligations or alter any of its obligations to be performed under the Agreement.

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14. Governing Law, Jurisdiction, and Venue
This Agreement shall be construed and its performance enforced under California law. In the event that suit shall be brought by either Party to this Agreement, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara or, if federal jurisdiction is appropriate, exclusively in the United States District Court for the Northern District of California, in San Jose, California.

15. Waiver
No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a Party must be in writing, and shall apply to the specific instance expressly stated.

16. Notice
Any notice required to be given by either Party, or which either Party may wish to give, shall be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows:

If to COUNTY: If to CITY:

County of Santa Clara
Public Health Department
Sara H. Cody, MD
Health Officer and Public Health Director
976 Lenzen Avenue
San Jose, CA 95126
City of Cupertino
City Manager’s Office
Katy Nomura
Assistant to the City Manager
10300 Torre Avenue
Cupertino, CA, 95014

Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Either Party may designate a different person and/or address for the receipt of notices by sending written notice to the other Party.

17. Third Party Beneficiaries
This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties.

18. Entire Agreement
This document represents the entire Agreement between the Parties with respect to the subject matter hereof. All prior negotiations and written and/or oral Agreements between

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the Parties with respect to the subject matter of this Agreement are merged into this Agreement.

19. Amendments
This Agreement may only be amended by a written instrument signed by the Parties.

20. Survival
The rights and duties under the following provisions shall survive the termination or expiration of this Agreement: Section 8 – Indemnification and Insurance; Section 10 – Monitoring/Records; Section 11 – Conflicts of Interest; and Section 14 – Governing Law, Jurisdiction, and Venue, and in any instrument, certificate, exhibit, or other writing attached hereto and incorporated herein.

21. Severability
If any term, covenant, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, covenants, conditions, and provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.

22. Contract Execution
Unless otherwise prohibited by law or City or County policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the Parties.

23. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
//
//
//

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Agreement between County of Santa Clara and City of Page 8 of 8 Cupertino re enforcement of tobacco retailer ordinance
//
//
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates written below.

Signed:

County of Santa Clara: City of Cupertino
*HQH&ODUN
&KLHIProcurement 2IILFHU
Date Deborah Feng
Cupertino City Manager
Date
Approved as to Form and Legality: Attest:

Jenny Lam
Deputy County Counsel
Date Kirsten Squarcia
Cupertino City Clerk
Date
Approved: Approved as to Form:

Sara H. Cody, MD
Health Officer and
Public Health Director
Date Heather M. Minner
Cupertino City Attorney
Date
Approved:

John Cookinham
CSCHS Financial Officer
Date
Exhibit A: Scope of Work
1238327.2

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County of Santa Clara & City of Cupertino Tobacco Retail Permit Program

Page 1 of 2 ends

EXHIBIT A

COUNTY OF SANTA CLARA AND CITY OF CUPERTINO TOBACCO RETAIL PERMIT PROGRAM – DESCRIPTION OF ROLES BY AGENCY
County of Santa Clara
Department of Environmental Health

1. Send out permit applications to all existing retailers selling tobacco products in the City of Cupertino and issue permits to eligible applicants on an annual basis.

2. Maintain database tracking system for all permitted tobacco retailers.

3. Provide list of permitted tobacco retailers to Public Health Department and County Sheriff’s Office on an annual basis or more frequently as requested.

4. Collect required permit fees.

5. Conduct at least one annual inspection of tobacco retailers to ensure compliance with local, state, and federal laws (except sales to minors).

6. Conduct follow up inspections if necessary, for ensuring compliance with ordinance.

7. Keep records of inspection outcomes for each tobacco retailer and provide annual inspection report summaries to a single point of contact at the Public Health Department

8. Take appropriate enforcement action if a violation is not corrected.

9. Coordinate with the County Sheriff’s Office when violations of sales to minors occur in order to take the appropriate enforcement action (may include fines and suspension of permit).

10. Coordinate with the Office of County Hearing Officer as appropriate on hearings, including to supply information on violations where an appeal is requested.

Public Health Department

1. Provide initial list of tobacco retailers to Department of Environmental Health to send out permit applications.

2. Obtain lists from California Department of Tax and Fee Administration and Cupertino Business Licensing Office* to establish current list of tobacco retailers and monitor for any new retailers.

3. Map any new retailers to ensure they meet eligibility requirements related to distance from schools, distance from existing tobacco retailers, and that under the ordinance the retailer meets all other eligibility requirements.

4. Notify the Department of Environmental Health and Cupertino Business Licensing Office* if a business is ineligible for a tobacco retail permit due to the ordinance requirements.

5. Proactively engage the business community so that they are aware of the TRL ordinance (e.g., effective date, requirements, fines/penalties) as appropriate.

6. Respond to requests for information from Cupertino tobacco retailers and the public regarding requirements under the Tobacco Retail Permit ordinance.

7. Meet with all related personnel to: (1) coordinate enforcement strategy; and (2) develop/ maintain policy and procedure for enforcement.

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County of Santa Clara & City of Cupertino Tobacco Retail Permit Program

Page 2 of 2 ends

8. Meet with all related personnel as necessary to: (1) coordinate post-compliance check strategy; and (2) next steps for violators.

9. Coordinate with the Office of County Hearing Officer as appropriate on hearings.

10. Provide an annual update to appropriate Cupertino staff on enforcement and compliance activities and outcomes for the program.

County Sheriff’s Office

1. Conduct undercover decoy operations targeting tobacco retailers.

2. Issue citations for violations of PC § 308(a).

3. Immediately notify the County (Department of Environmental Health and Public Health) on outcomes of enforcement operations, particularly when violations of PC § 308(a) occur.

4. Provide documentation for the violation, including a copy of the citation, any additional report, written record, or evidence of violation to the Department of Environmental Health and Public Health.

5. Provide enforcement report summaries to a point of contact at the Public Health Department and Department of Environmental Health.

City of Cupertino
Business Licensing Office *

1. Route business licensing applications for any new tobacco retailers to a designated contact at the County Public Health Department to determine permit eligibility. Any business that sells tobacco products is subject to the requirements under the Tobacco Retail Permit ordinance.

2. Route new and renewal applications to County Public Health and Environmental Health to ensure there has not been a change in ownership at the business.

City Manager’s Office

1. Provide information on the City of Cupertino’s website where tobacco retailers can get more information on the requirements for selling tobacco in Cupertino.

2. Act as a resource to other cities that may be interested in a similar partnership with the County.

3. Update ordinance as needed in collaboration with City Attorney and County Counsel’s Office.
*Business Licensing Office is a program within the Finance Division, which is within the Administrative Services Department in Cupertino.

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From: DeGruy, DeOnna
To: Seaton, Michele
Cc: Cody, Sara (Health Officer)
Subject: Designation of Signature Authority
Date: Thursday, April 30, 2020 5:08:44 PM
Attachments: image001.png
image002.png
Dear all,
Dr. Sara Cody is responding to Covid-19 and would like to designate full signature authority to Rocio Luna, PH Deputy Director, who will be covering all administrative functions during this time.

Dr. Cody is copied on this email as well.

Please let me know if you need anything else.

Warmest Regards,
DeOnna DeGruy
Executive Assistant II- Confidential
County of Santa Clara, Public Health Administration
976 Lenzen Avenue, 2nd Floor
San Jose, CA 95126
[email protected]

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ORDINANCE NO. __________________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND

REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS
The City Council of the City of Cupertino finds that:

1. Electronic cigarettes, also known as e-cigarettes, e-vaporizers, or electronic nicotine delivery systems, are battery-operated devices that people use to inhale an aerosol that typically contains nicotine. In addition to nicotine, the aerosol from e-cigarettes may include up to 31 other components, including formaldehyde, acetaldehyde, glycidol, acrolein, acetol, and diacetyl. Several of these compounds are likely carcinogens, and acrolein is a powerful irritant. (See 2016 Surgeon General’s Report: E-Cigarette Use Among Youth and Young Adults, Centers for Disease Control and Prevention (2016),
https://www.cdc.gov./tobacco/data_statistics/sgr/e-cigarettes/index.htm). These products can resemble traditional tobacco cigarettes (cig-a-likes), cigars, or pipes, or even everyday items like pens or USB memory sticks. (See Vaping Devices (Electronic Cigarettes), National Institute for Drug Abuse (2020), https://www.drugabuse.gov/publications/drugfacts/vaping-devices-electroniccigarettes). The pervasive use of these and other related electronic cigarette products has given rise to a massive and multifaceted public health crisis. In addition, the Surgeon General has declared the use of e-cigarettes among youth an “epidemic.” Nearly 1 in 3 Santa Clara County teens—31.6 percent—report that they have used an e-cigarette at least once. (See Zhu S-H, et al., Tobacco use among high school students in Santa Clara County: Findings from the 2017-18 California Student Tobacco Survey, Center for Research and Intervention in Tobacco Control (2019)).

2. The City Council of the City of Cupertino held a duly noticed public hearing on February 4
th, 2020, and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof.
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NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:

SECTION 1. Adoption.

The Cupertino Municipal Code is hereby amended as set forth in Attachment A.

SECTION 2: Severability and Continuity.

The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of such portion, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated.

SECTION 3: California Environmental Quality Act.

This Ordinance is not a project under the requirements of the California Quality Act of 1970, together with related State CEQA Guidelines (collectively, “CEQA”) because it has no potential for resulting in physical change in the environment. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility 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 amendments to the City Code 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.

SECTION 4: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.
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SECTION 5: Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

INTRODUCED at a regular meeting of the Cupertino City Council on September 19, 2023 and ENACTED at a regular meeting of the Cupertino City Council on October 17, 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
APPROVED AS TO FORM:
__________________________
Christopher D. Jensen, City Attorney
________________________
Date
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Attachment A – An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 of Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products
The sections of the Cupertino Municipal Code set forth below are amended or adopted as follows:

Text added to existing provisions is shown in bold double-underlined text (example) and text to be deleted in shown in strikethrough (example). Text in existing provisions is not amended or readopted by this Ordinance. Text in italics is explanatory and is not an amendment to the Code.

Where the explanatory text indicates that a new section is being added to the City Code, the new section is shown in plain text.

This ordinance amends several portions of the Municipal Code. For ease of review, the amendments advancing the primary objective are presented first followed by conforming amendments. There is a separate heading in bold italics for each portion of the Code being amended. Each portion is shown beginning on a separate page.

1. Chapter 5.50 of Title 5 is amended as follows:

5.50.010 Section IntentPurpose.

A. This chapterChapter is adopted to:

1. Ensure compliance with the business standards and practices of the cCity;

2. Encourage responsible retailing of tobacco products;

3. Discourage violations of laws related to tobacco products, especially those that prohibit or discourage the sale or distribution of tobacco products to persons under twenty-one;

4. Respond to a new wave of addiction to electronic cigarette products;

5. Reduce vulnerability to unexplained illnesses associated with electronic cigarette products; and
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6. Protect the public health and welfare.

B. This chapterChapter does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws.

5.50.020 Definitions.

For the purposes of this chapterChapter, the following definitions shall apply:

A. "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two or more informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapterChapter is not an arm's length transaction.

B. "Designee" means the agency or public entity selected or designated by the cCity to enforce and/or administer the provisions of this chapterChapter.

C. “Distribute or Distribution” means the transfer, by any person other than a common carrier, of a tobacco product to another person for sale or personal consumption.

D. “Electronic cigarette products” means any of the following products:

1. Any device or delivery system that can be used to deliver nicotine in aerosolized or vaporized form, including, but not limited to, an e-cigarette, ecigar, e-pipe, vape pen, or e-hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.
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3. Any flavored or unflavored liquid or substance containing nicotine, whether sold separately or sold in combination with any device or delivery system that could be used to deliver nicotine in aerosolized or vaporized form.

4. Any product for use in an electronic nicotine device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.

5. Electronic cigarette products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. Electronic cigarette products shall not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where that product is marketed and sold solely for such approved use. See 21 U.S.C. § 387a. As used in this subsectionparagraph, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

E. “Impound” means the legal control exercised by the City over the use, sale, disposal, or removal of any Tobacco Products.

E.F. "Ownership" means possession of a ten percent or greater interest in the stock, assets, or income of a business, other than a security interest for the repayment of debt. Notwithstanding any other definition in this code, an owner means a person who possesses ownership.

F.G. “Permit” means a valid permit issued by the Ccity or its designee to a person to act as a retailer.
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G.H. "Retailer" means any person who sells, exchanges, or offers to sell or exchange, for any form of consideration, tobacco productswhether or not they possess a current permit. "Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products sold, exchanged, distributed, or offered for sale or exchange.

H.I. "School" means a public or private elementary, middle, junior high, or high school.

I.J. "Tobacco product" means:

1. Any product subject to: 21 U.S.C. § 387 et seq. ("Subchapterchapter IX") of the Federal Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b)) ("products subject to [Subchapterchapter IX]"); or 21 C.F.R. §§ 1100.1- 1100.3 ("[tobacco products] are subject to Subchapter IX") and electronic cigarette products. Products subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco., and electronic cigarette products.

Products that are not subject to Subchapter IX include accessories of tobacco products, such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a tobacco product.

5.50.030. Requirements and prohibitions.

A. Permit required. It shall be unlawful for any person to act as a retailer of tobacco products in the city without first obtaining and maintaining a valid retailer permit pursuant to this chapter Chapter for each location at which retailing occurs. Tobacco product retailing without a valid tobacco retailer permit is a nuisance as a matter of law.
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B. Lawful business operation. It shall be a violation of this chapter Chapter for any retailer to violate any local, state, or federal law applicable to tobacco products or the retailing of such products.

C. Display of permit. Each current retailer permit shall be prominently displayed in a publicly visible place at the location identified in the permit.

D. Notice of minimum age for purchase of tobacco products. Retailers shall post conspicuously, at each point of purchase, a notice stating that selling tobacco products to anyone under twenty-one years of age is illegal and subject to penalties. Such notice shall be subject to the approval of the city or its designee.

E. Positive identification required. No retailer shall sell or distribute a tobacco product to another person who appears to be under thirty years of age without first examining the customer's identification to confirm that the customer is at least the minimum age required under state law to purchase and possess the tobacco product.

F. Minimum age for individuals selling tobacco products. No individual who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in retailing.

G. False and misleading advertising prohibited. A retailer without a permit:

1. Shall keep all tobacco products out of public view.

2. Shall not display any advertisement relating to tobacco products that promotes the sale or distribution of such products from the retailer's location or that could lead a reasonable consumer to believe that tobacco products can be obtained at that location.
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H. Limitation on storefront advertising. No more than fifteen percent of the square footage of the windows and clear doors of a physical storefront used for retailing tobacco products shall bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises. However, this latter requirement of this subsection (H) paragraph shall not apply to an establishment where there are no windows or clear doors, or where existing windows are located only at a height that precludes a view of the interior of the premises by a person standing outside the premises.

I. Flavored tobacco products.

1. No retailer shall sell a tobacco product containing, as a constituent or additive, an artificial or natural flavor or aroma (other than tobacco ) or an herb or spice, including but not limited to strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, mint, menthol, or coffee, that is a characterizing flavor or aroma of the tobacco product, smoke or vapor produced by the tobacco product.

2. A tobacco product shall be subject to a rebuttable presumption that the product is prohibited by subparagraph (1) of this subsection (I) paragraph if:
a. The product's manufacturer or any other person associated with the manufacture or sale of tobacco products makes or disseminates public statements or claims to the effect that the product has or produces a characterizing flavor or aroma, other than tobacco; or
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b. The product's label, labeling, or packaging includes a statement or claim— including any text and/or images used to communicate information—that the product has or produces a characterizing flavor or aroma other than tobacco.

J. Vending machines prohibited. No tobacco product shall be sold, offered for sale, or distributed to the public from a vending machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

K. Prohibition on sale or distribution of tobacco products to persons under twentyone years. No retailer shall sell, offer for sale, or distribute any tobacco product to any individual who is under twenty-one years of age.

L. Prohibition on sale or distribution of electronic cigarette products. No person in the CountyCity, whether or not issued a Permit, shall sell or distribute electronic cigarette products.No retailer shall sell or distribute electronic cigarette products.

5.50.040. Eligibility requirements for a permit.

A. No retailer permit may be issued to authorize retailing at or from other than a fixed location. For example, retailing by persons on foot or from vehicles is prohibited.

B. No retailer permit may be issued to authorize retailing at a temporary or recurring temporary event. For example, retailing at flea markets and farmers' markets is prohibited.

C. No retailer permit may be issued to authorize retailing at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State of 345
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California in accordance with the Business and Professions Code and where prescription drugs are offered for sale.

D. No retailer permit may be issued to authorize retailing at any location within one thousand feet of a school, as measured by a straight line between any point along the property line of any parcel on which a school is located and any point along the perimeter of the applicant's proposed business location; provided, however, that the prohibition contained in this subsection (D) paragraph shall not apply to the following:

1. Any retailer of tobacco products operating lawfully on the date immediately prior to this cChapter becoming effective provided that the retailer obtains a permit prior to July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B); and

2. Any lawfully operating retailer of tobacco products that would otherwise become ineligible to receive or renew a retailer permit due to the creation or relocation of a school.

E. No retailer permit may be issued to authorize retailing at a location which is within five hundred feet of a location occupied by another retailer, as measured by a straight line between any point along the perimeter of an existing retailer’s business location and any point along the perimeter of the applicant's proposed business location, provided, however, that the prohibition contained in this subsection (E)paragraph shall not apply to existing retailers of tobacco products operating lawfully on the date immediately prior to this chapter Chapter becoming effective provided that the retailers obtain a permit prior to July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renew their permits pursuant to 5.50.070(B).
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F. Any exemption granted to a retailer pursuant to this Cchapter shall cease to apply upon the earlier of the following to occur:

1.The retailer fails to timely renew the retailer permit pursuant to this cChapter.

1. 2. A new person obtains ownership in the business.

5.50.050 Application procedure.

A. It is the responsibility of each retailer to be informed of all laws applicable to retailing, including those laws affecting the issuance of a retailer permit. No retailer may rely on the issuance of a retailer permit as a determination by the cCity that the retailer has complied with all laws applicable to retailing. A retailer permit issued contrary to this cChapter, contrary to any other law, or on the basis of false or misleading information supplied by a retailer shall be revoked pursuant to this chapterChapter.

B. All retailer permit applications shall be submitted on a form supplied by the cCity or its designee to implement this cChapter.

C. A permitted retailer shall inform the cCity or its designee in writing of any change in the information submitted on an application for a retailer permit within fourteen calendar days of a change.

C. D. All information specified in an application pursuant to this cChapter shall be subject to disclosure under the California Public Records Act (Government Code Section 6250 et seq.) or any other applicable law, subject to any exemptions. 347
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5.50.060 Permit issuance, denial, and revocation.

A. Upon the receipt of a complete application for a retailer permit, the application fee, and the annual permit fee, the Ccity or its designee shall issue a retailer permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false.

2. The application seeks authorization for retailing at a location for which this chapter Chapter prohibits issuance of a retailer permit.

3. The application seeks authorization for retailing by a person to whom this chapter Chapter prohibits issuance of a retailer permit.

4. The application seeks authorization for a retailer whose permit has previously been revoked or who has otherwise violated any provision of this Chapter within the last 60 months.

5. The application seeks authorization for retailing that is prohibited pursuant to this chapter Chapter (e.g., mobile vending) or that is unlawful pursuant to any other law.

4.6.The application seeks authorization for Retailing by a Retailer who has failed to pay any fees, penalties, or reinspection fees required by this Chapter.

B. A retailer permit shall be revoked if the cCity or its designee finds that one or more of the bases for denial of a retailer permit under this chapter Chapter existed at the time application was made or at any time before the retailer permit issued. Such a revocation shall be without prejudice to the filing of a new permit application.
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B. C. A violation of this Chapter may result in permit shall be permanently suspension or permanent revoked revocation of if the retailer has committed violation as Specified in a permit pursuant to Section B11-588 ( c )5.50.130.

5.50.070 Permit term, conditions, renewal, and expiration.

A. Term of permit. The term of a retailer permit is one year. A retailer permit is invalid upon expiration.

B. Conditions of permit. As conditions of permit issuance and retention, retailer shall:

1. Allow compliance inspections as described in Section B11-586this Chapter and expressly consent to inspection of all area and records of retailer’s business required to effectuate the purpose of this Cchapter, including unlocking and allowing access to any area of retailer’s business requested by any individual authorized to monitor and facilitate compliance with this Cchapter.

2. Comply with any order of the city to impound any product not authorized to be sold by this cChapter and cooperate with any city seizure of any product, subject to appeal of those actions.

3. Failure to comply with these permit conditions may result in permit suspension or revocation as described in Section B11-5885.120.

B.C. Renewal of permit. The cCity or its designee shall renew a valid retailer permit upon timely payment of the annual permit fee provided that the retailer is in compliancecomplies with this cChapter, as amended. The cCity or its designee may, in its discretion, agree to renew any expired retailer permit within the threemonth period following expiration if the retailer pays the annual permit fee and applicable late charges. For every calendar month, or fraction thereof, that a 349
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retailer fails to renew an expired retailer permit, a late charge equal to twenty percent of the annual permit fee shall be assessed. A retailer permit renewed within three calendar months of expiration shall be treated as if timely renewed.

B. D. Issuance of permit after revocation or expiration of permit. To apply for a new retailer permit more than three calendar months after expiration of a retailer permit or following revocation of a retailer permit that was wrongly issued, a retailer must submit a complete application for a retailer permit, along with the application fee and annual permit fee. The cCity or its designee shall issue a retailer permit pursuant to the requirements of this cChapter.

5.50.080 Permits nontransferable.

A. A retailer permit may not be transferred from one person to another or from one location to another. Whenever a new person obtains ownership in a business for which a retailer permit has been issued, a new retailer permit shall be required, but any exemption granted pursuant to Section 5.50.040(D) or (E) shall cease to apply.

B. Notwithstanding any other provision of this cChapter, prior violations of this cChapter at a location shall continue to be counted against a location and permit ineligibility and suspension periods shall continue to apply to a location unless:

1. One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to one or more new owners; and
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2. 2. The cCity or its designee is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an arm's length transaction.

5.50.090 Permit conveys a limited, conditional privilege.

Nothing in this chapter Chapter shall be construed to grant any person obtaining and maintaining a retailer permit any status or right other than the limited, conditional privilege to act as a retailer at the location in the city identified on the face of the permit.

All permits are issued subject to the cCity’s right to amend this chapter, and retailers shall comply with all provisions of this cChapter, as amended.

5.50.100 Fees.

The cCity or its designee shall not issue or renew a retailer permit prior to before full payment of any applicable fees. The cCity shall, from time to time, establish by resolution or ordinance the fees to issue or to renew a retailer permit. The fees shall be calculated so as to recover the cost of administration and enforcement of this cChapter, including, for example, issuing a permit, administering the permit program, conducting retailer education, routine performing retailer inspection and compliance checks, documenting violations, and prosecuting violators, , but shall not exceed the cost of the regulatory program authorized by this cChapter. All fees and interest earned from such fees shall be used exclusively to fund administration and enforcement of this cChapter.

5.50.110 Compliance monitoring.

A. Compliance with this cChapter shall be monitored by the cCity or its designee. In addition, any peace officer may enforce the penal provisions of this cChapter. The 351
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City Manager may designate any number of additional persons to monitor and facilitate compliance with this cChapter.

The cCity or its designee shall check monitor each retailer at least once per twelve-month period to determine if the retailer is complying with all laws applicable to retailing, other than those laws regulating underage access to tobacco products. Nothing in this paragraph shall create a right of action in any retailer or other person against the cCity or its agents.

B. Any retailer found to bin in violation of this Chapter shall pay all costs related to enforcement to ensure retailer’s compliance with this chapter, including but not limited to fees for reinspection to determine compliance after a violation, enforcement costs, litigation costs, and attorney’s fees in any administrative or civil matter in which the County prevails pursuant to Division A1 of this Code

5.50.120 Prevention of underage sales.

A. The cCity or its designee shall check monitor each retailer to determine whether the retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products. Nothing in this paragraph shall create a right of action in any retailer or other person against the cCity or its agents.

B. The cCity or its designee shall not enforce any law establishing a minimum age for tobacco product purchases against a person who otherwise might be in violation of such law because of the person’'s age ("(“youth decoy") ”) if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the Ccity or its designee; 352
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2. The youth decoy is acting as an agent of a person designated by the Ccity or its designee to monitor compliance with this cChapter; or

2. 3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Ccity, or the California Department of Public Health.

5.50.130 Penalties for a violations by a retailer with a permitPermit suspension or revocation.

A. In addition to any other penalty authorized by law, an administrative fine shall be imposed and a retailer permit shall be suspended if any court of competent jurisdiction determines, or the city or its designee finds based on a preponderance of the evidence, a retailer shall pay a fine if the retailer or that the retailer, or any of the retailer's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter, has pled guilty, "no contest" or its equivalent to such a violation, or has admitted to such a violation.

Amount of fine. Each such violation of this chapter shall be subject to an administrative fine as follows:

0. A fine not to exceed one hundred dollars ($100.00) for a first violation;. A fine not to exceed one thousand dollars ($1,000) for each violation identified during the first instance in which the retailer has committed a violation or violations;

0. A fine not to exceed two hundred dollars ($200.00) for a second violation within a twelve-month period; A fine not to exceed two thousand five hundred dollars ($2,500) for each violation identified during a subsequent 353
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instance if the retailer has committed a previous violation or violations within a 60-month period; and

0. A fine not to exceed five hundred dollars ($500.00) for each additional violation within a twelve-month period.A Fine not to exceed five thousand dollars ($5,000) for each violation identified during a subsequent instance after the retailer twice committed a previous violation or violations within a 60-month period.

F.A. Time period for pPermit suspension. In addition to any other penalty authorized by law, the City may suspend a permit if the City demonstrates that the retailer or any of the retailer’s agents or employees has violated any of the requirements, conditions, or prohibitions of this cChapter. The period of the suspension shall be as follows:

1. For a first violation of this chapter at a location within any sixty-month period, the retailer permit shall be suspended for up to thirty calendar days.A suspension not to exceed 30 calendar days for an initial violation.

2. For a second violation of this chapter at a location within any sixty-month period, the retailer permit shall be suspended for up to ninety calendar days.A suspension not to exceed 180 calendar days if a retailer commits a violation or violations during two instances within a 60-month period.

3. For each additional violation of this chapter at a location within any sixtymonth period, the retailer permit shall be suspended for up to one year.When a Permit Mis suspended based on a violation of this chapter, the City shall post a placard at the physical location used for retailing tobacco products to notify the general public of the suspension. The placard shall be:
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(A) Posted in the front window of the storefront used for retailing tobacco products within five feet of the front door; or
(B) Posted in a display case mounted on the outside front wall of the physical location used for retailing tobacco products within five feet of the front door; or
(C)Posted in a location approved by the Director to ensure proper notice to the general public and to patrons of the physical location used for retailing tobacco products.
(A)(D) Once attached to a building or structure, a placard is not to be removed, altered, or covered until done so by an authorized representative of the City or upon written notification from the City.

B. Permanent permit revocation. In addition to any other penalty authorized by law, the City shall permanently revoke a permit if a retailer commits a violation or violations during three instances within a 60-month period.

G.C. Waiver or reduction of fines and of penalties for first violation. The Ccity or its designee may, in its sole discretion, may waive or reduce any fines and penalties for a retailer's first violation of any requirement, condition or prohibition of this chaptersection, other than a violation of a law regulating youth access to tobacco products, if the retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the cCity'’s or its designee’'s waiver of penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocationpenalties for any future violation. This subsection paragraph shall not apply to any violation involving a law regulating youth access to tobacco products. 355
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H.D. Corrections period. The cCity or its designee shall have discretion to allow a retailer a period of time to correct any violation of any requirement, condition or prohibition of this Cchapter, other than a violation of a law regulating youth access to tobacco products. If the Ccity or its designee exercises its discretion to provide a corrections period and a retailer'’s violation is corrected within the time allowed for correction, no penalty shall be imposed under this chapterChapter.

E. Written notice of penalties. Whenever a fine an administrative citation is issued and/or a permit is suspended or revoked based on a violation of this chapterChapter, the cCity or its designee shall provide the retailer written notice of the violation and the fine and suspension or revocation, including when the suspension or revocation shall take effect.

F. Appeals. The suspension or revocation of a permit may be appealed in the same manner as the appeal of an administrative citation pursuant to Section 1.10.090.

Any penalties imposed under this section may be appealed pursuant to Section B11-590 of this chapter.

H. G. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the CountyCity is issued.

5.50.140 Penalties for retailing without a permit.

Administrative fine. In addition to any other penalty authorized by law, an administrative fine and an ineligibility period for application or issuance of a retailer permit retailer shall pay a fine shall be imposed if a court of competent jurisdiction determines, or the Ccity or its designee finds based on a preponderance of evidence, demonstrates that anythe personretailer has engaged in retailing at a location without a 356
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valid retailer permit, either directly or through the personretailer's agents or employees, has pled guilty, "no contest" or its equivalent to such a violation, or has admitted to such a violation of this Chapter shall be as follows:.
. Amount of fine. Each such violation shall be subject to an administrative fine as follows:

0. A fine not to exceed one hundred dollars ($100.00) for a first violation;A fine not to exceed two thousand five hundred dollars ($2,500) for each violation identified during the first instance in which the retailer has committed a violation or violations without a valid permit;

0. A fine not to exceed two hundred dollars ($200.00) for a second violation within a twelve-month periodA fine not to exceed five thousand dollars ($5,000) for each violation identified during a subsequent instance if the retailer has committed a previous violation or violations withing a 60-month period without a valid permit; and

0. A fine not to exceed five hundred dollars ($500.00) for each additional violation within a twelve-month period.A fine not to exceed ten thousand dollars ($10,000) for each violation identified during a subsequent instance after the retailer twice committed a previous violation or violations within a 60-month period without a valid permit.
. Time period for permit ineligibility. The ineligibility period shall be as follows:

0. For a first an initial violation of this chapter without a valid permit, at a location within any sixty-month period, no new retailer permit may be issued tfor the retailerperson or the location (unless ownership of the business at the 357
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location has been transferred in an arm's length transaction) until thirty calendar days have passed from the date of the violation.

0. For a second violation of this chapter at a location within any sixty-month period, no new retailer permit may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction) until ninety calendar days have passed from the date of the violation.If a retailer commits a violation or violations during two instances within a 60-month period without a valid permit, no new permit may be issued to the retailer or the location (unless Ownership of the business at the location has been transferred in an arms’ length transaction) until one year has passed from the date of the second violation.

0. For each additional violation of this chapter at a location If a retailer commits a violation or violations during three instances within any sixty-month period without a valid permit, no new retailer permit may be issued for the person or thethe retailer and the location (unless ownership of the business at the location has been transferred in an arm's length transaction) until one year has passed from the date of the violationshall be permanently ineligible for a permit.
. Waiver ofor reduction of fines and penalties for first violation. The city or its designee may, in its sole discretion, may waive or reduce any fines and penalties for a retailer's first violation of this Cchapter, unless the violation also involves a violation of a law regulating youth access to tobacco products, if the retailer admits the violation in writing and agrees to forego a hearing on the allegations.

Regardless of the Ccity's or its designee's waiver of penalties for a first violation, the violation will be considered in determining the penalties for any future 358
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violationfines and suspension periods or revocation for any future violation. This subsection shall not apply to any violation involving a law regulating youth access to tobacco products.

Written notice of penalties. Whenever a fine is issued and/or a permit is suspended pursuant to this section, the cCity or its designee shall provide the retailer written notice of the fine and suspension, including when the suspension shall take effect.

A. Appeals. Any penalties imposed under this chapter may be appealed pursuant to this section. A timely appeal shall stay enforcement of the appealed penalties while until the appeal is ongoingfinal administrative decision of the County is issued.

4.49.149 Appeals.

B. Any retailer served with a written notice of penalties violation may request an administrative hearing to appeal the existence of the violation, the amount of the fine, and/or the length of thea suspension, a revocation of a permit, the sustained impounded of tobacco products, and/or seizure of tobacco products by returning a completed hearing request form to the city or its designee within 10 days from the date of the written notice of penalties.

B. The retailer shall include the following in or with the hearing request form:

0. A statement indicating the reason the retailer contests the written notice of penalties;

0. Any evidence the retailer wants the hearing officer to consider; 359
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1. An advance deposit of the amount of any fine challenged; and

1. The address of the retailer and, if available, an email address that can be used for contact and correspondence by the Ccity or its designee. The retailer may request service of notice by mail.

A. The hearing request form shall be deemed filed on the date received by the agency designated by the cCity. A timely appeal shall stay enforcement of the appealed penalties while the appeal is ongoing.

A. After receiving a timely hearing request form, the Ccity or its designee shall schedule an administrative hearing. The Ccity or its designee shall provide the retailer at least ten calendar days’ written notice of the date, time, and place of the administrative hearing and the name of the hearing officer who will conduct the hearing. The notice shall be given to the retailer either by email, if requested, or by first class mail, postage prepaid.

A. Between the time the retailer requests the administrative hearing and the time of the hearing officer’s decision, the retailer, and each of their representatives shall not engage in ex parte communications with the hearing officer regarding the matters at issue in the hearing.

A. The hearing shall be conducted by the hearing officer on the date, time, and place specified in the notice to the retailer. A retailer’s failure to appear at the hearing shall constitute an abandonment of the hearing request and a failure to exhaust administrative remedies as a precedent to judicially challenge the existence of the violation and the imposition of the fine and suspension.

A. At the hearing, the retailer and the Ccity or its designee shall have the opportunity to present evidence, including witnesses, relevant to the hearing 360
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officer’s determination of the matter. Neither the provisions of the Administration Procedure Act (Government Code Section 11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall apply to such hearing. The hearing officer may admit any evidence, including witnesses, relevant to the determination of the matter, except as otherwise provided in Section 5.50.160(C).

A. The written notice of penalties and any other reports prepared by or for the Ccity or its designee concerning the violation shall be admissible and accepted by the hearing officer as prima facie evidence of the violation and the facts stated in those documents. The hearing officer may continue the hearing from time to time, in his or her sole discretion, to allow for its orderly completion.

A. After receiving the evidence submitted at the hearing, the hearing officer may further continue the hearing and request additional information from either the city, its designee, or the retailer.

A. After considering the evidence and testimony submitted, the hearing officer shall issue a written decision regarding the matters properly raised in the request for administrative hearing. The hearing officer’s decision shall:

1. Be based on a preponderance of the evidence.

1. Include a statement of the reasons for the decision.

1. Be issued within twenty calendar days of the close of the hearing.

1. Be served on both the retailer and the city or its designee. The decision shall be given to the retailer either by email, if requested, or by first class mail, postage prepaid.
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B. Based on the hearing officer’s decision, the Ccity or its designee shall promptly refund to the retailer any amount of the advance fine deposit the city or its designee is not entitled to.

B. The hearing officer’s written decision shall constitute the final administrative decision of the Ccity.

5.50.1460 Enforcement.

A. Any violation of this Chapter is subject to administrative citation pursuant to Chapter 1.10.

A.B. Any violation of this chapter Chapter is hereby declared to be a public nuisance.

B.C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this cChapter shall also constitute a violation of this chapterChapter.

C.D. Whenever evidence of a violation of this Cchapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required over his or her objection to appear or give testimony in any civil or administrative process brought to enforce this chapter Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

E. Violations of this chapter Chapter may be remedied by a legalcivilcivil action brought by the Ccity, including, but not limitedpursuant to, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief. Division A1 of this Code.
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D.F. For the purposes of the civil and administrative remedies provided in this chapterChapter, each day on which a tobacco product is offered for sale in violation of this Cchapter, and each individual retail tobacco product that is distributed, sold, or offered for sale in violation of this Cchapter, shall constitute a separate violation of this Cchapter.

E. Impoundment.Any person found guilty of violating any provision of this chapter shall be deemed guilty of an infraction, punishable as provided by California Government Code § 36900.

1. Based upon inspection findings or other evidence, the City may impound tobacco products that are suspected of being or found to be offered for sale or distribution in violation of this Cchapter. The City may affix a label to the product that shall be removed only by the City following final written determination by the City as described below.

2. No impounded tobacco products shall be used, removed, disposed, or offered for sale unless the impoundment has been released. The decision by the City may be appealed pursuant to the procedures set forth in Section B11-590.

3. Within 30 -days of final determination whether impounded products are authorized for sale under this cChapter, the City shall release the impounded materials or order that unauthorized, impounded product shall be destroyed and properly disposed of at the cost of the retailer. The decision by the City may be appealed pursuant to the procedures set forth in Section 1.10.090.

H. Seizure. Tobacco products offered for sale in violation of this Cchapter are subject to seizure by the City and shall be forfeited after the retailer of the tobacco 363
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products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this cChapter.

The decision by the City may be appealed pursuant to the procedures set forth in Section B11-590Section 1.10.090. Forfeited tobacco products shall be destroyed and properly disposed at the cost of the retailer after all internaladministrative appeals have been exhausted and after the time in which to seek judicial review pursuant to Section B11-590 of this Chapter has expired.

I. All retailers are responsible for the actions of their employees relating to compliance with this cChapter. The sale, offer to sale, or furnishing of any tobacco products by an employee shall be considered an act of the retailer.

J. Any retailer found to bin in violation of this Chapter shall pay all costs related to enforcement to ensure retailer’s compliance with this Chapter, including but not limited to fees for reinspection to determine compliance after a violation, enforcement costs, litigation costs, and attorneys’ fees in any administrative or civil matter in which the City prevails.

F.K. The remedies provided by this cChapter are cumulative and in addition to any other remedies available at law or in equity.

5.50.1570 No conflict with federal or state lawInterpretation.

A. Nothing in this CChapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by, or in conflict with, federal or state law, rules, or regulations.

A.B. Nothing in this cChapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in the retailing of such products.
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An Ordinance Regulating the Sale of Tobacco Products
ORDINANCE NO. __________________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND

REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS
The City Council of the City of Cupertino finds that:

NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:

SECTION 1. Adoption.

The Cupertino Municipal Code is hereby amended as set forth in Attachment A.

SECTION 2: Severability and Continuity.

The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of such portion, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated.

SECTION 3: California Environmental Quality Act.

SECTION 4: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937. However, the Ordinance’s requirements shall not become operative as to tobacco retailers until July 1, 2020, which means that the City, or its designee, will not begin to enforce the provisions and penalties under the Ordinance until July 1, 2020. 366
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SECTION 5: Publication.

The City Clerk shall give notice of adoption of this Ordinance as required by law.

INTRODUCED at a regular meeting of the Cupertino City Council on February **, 2023 and ENACTED at a regular meeting of the Cupertino City Council on February **, 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
APPROVED AS TO FORM:
__________________________
Christopher D. Jensen, City Attorney
________________________
Date
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Attachment A – An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 of Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products
The sections of the Cupertino Municipal Code set forth below are amended or adopted as follows:

Where the explanatory text indicates that a new section is being added to the City Code, the new section is shown in plain text.

1. Chapter 5.50 of Title 5 is amended as follows:

5.50.010 Purpose.

A. This Chapter is adopted to:

1. Ensure compliance with the business standards and practices of the City;

2. Encourage responsible retailing of tobacco products;

3. Discourage violations of laws related to tobacco products, especially those that prohibit or discourage the sale or distribution of tobacco products to persons under twenty-one;

4. Respond to a new wave of addiction to electronic cigarette products;

5. Reduce vulnerability to unexplained illnesses associated with electronic cigarette products; and
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6. Protect the public health and welfare.

B. This Chapter does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws.

5.50.020 Definitions.

For the purposes of this Chapter, the following definitions shall apply:

B. "Designee" means the agency or public entity selected or designated by the City to enforce and/or administer the provisions of this Chapter.

C. “Distribute or Distribution” means the transfer, by any person other than a common carrier, of a tobacco product to another person for sale or personal consumption.

D. “Electronic cigarette products” means any of the following products:

1. Any device or delivery system that can be used to deliver nicotine in aerosolized or vaporized form, including, but not limited to, an e-cigarette, ecigar, e-pipe, vape pen, or e-hookah.

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.
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4. Any product for use in an electronic nicotine device or delivery system whether or not it contains nicotine or tobacco or is derived from nicotine or tobacco.

5. Electronic cigarette products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold separately. Electronic cigarette products shall not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where that product is marketed and sold solely for such approved use. See 21 U.S.C. § 387a. As used in this paragraph, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

E. “Impound” means the legal control exercised by the City over the use, sale, disposal, or removal of any Tobacco Products.

F. "Ownership" means possession of a ten percent or greater interest in the stock, assets, or income of a business, other than a security interest for the repayment of debt. Notwithstanding any other definition in this code, an owner means a person who possesses ownership.

G. “Permit” means a valid permit issued by the City or its designee to a person to act as a retailer.
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H. "Retailer" means any person who sells, exchanges, or offers to sell or exchange, for any form of consideration, whether or not they possess a current permit. "Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products sold, exchanged, distributed, or offered for sale or exchange.

I. "School" means a public or private elementary, middle, junior high, or high school.

J. "Tobacco product" means:

1. Any product subject to: 21 U.S.C. § 387 et seq. ("Subchapter IX") of the Federal Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b)) ("products subject to [Subchapter IX]"); or 21 C.F.R. §§ 1100.1- 1100.3 ("[tobacco products] are subject to Subchapter IX") and electronic cigarette products. Products subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, rollyour-own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco. Products that are not subject to Subchapter IX include accessories of tobacco products, such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a tobacco product.

5.50.030. Requirements and prohibitions.

A. Permit required. It shall be unlawful for any person to act as a retailer of tobacco products in the City without first obtaining and maintaining a valid retailer permit pursuant to this Chapter for each location at which retailing occurs. Tobacco product retailing without a valid tobacco retailer permit is a nuisance as a matter of law.
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B. Lawful business operation. It shall be a violation of this Chapter for any retailer to violate any local, state, or federal law applicable to tobacco products or the retailing of such products.

C. Display of permit. Each current retailer permit shall be prominently displayed in a publicly visible place at the location identified in the permit.

E. Positive identification required. No retailer shall sell or distribute a tobacco product to another person without first examining the customer's identification to confirm that the customer is at least the minimum age required under state law to purchase and possess the tobacco product.

G. False and misleading advertising prohibited. A retailer without a permit:

1. Shall keep all tobacco products out of public view.

2. Shall not display any advertisement relating to tobacco products that promotes the sale or distribution of such products from the retailer's location or that could lead a reasonable consumer to believe that tobacco products can be obtained at that location.
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H. Limitation on storefront advertising. No more than fifteen percent of the square footage of the windows and clear doors of a physical storefront used for retailing tobacco products shall bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises. However, this latter requirement of this paragraph shall not apply to an establishment where there are no windows or clear doors, or where existing windows are located only at a height that precludes a view of the interior of the premises by a person standing outside the premises.

I. Flavored tobacco products.

2. A tobacco product shall be subject to a rebuttable presumption that the product is prohibited by subparagraph (1) of this paragraph if:
a. The product's manufacturer or any other person associated with the manufacture or sale of tobacco products makes or disseminates public statements or claims to the effect that the product has or produces a characterizing flavor or aroma, other than tobacco; or
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b. The product's label, labeling, or packaging includes a statement or claim— including any text and/or images used to communicate information—that the product has or produces a characterizing flavor or aroma other than tobacco.

L. Prohibition on sale or distribution of electronic cigarette products. No person in the City, whether or not issued a Permit, shall sell or distribute electronic cigarette products.

5.50.040. Eligibility requirements for a permit.

A. No retailer permit may be issued to authorize retailing at or from other than a fixed location. For example, retailing by persons on foot or from vehicles is prohibited.

B. No retailer permit may be issued to authorize retailing at a temporary or recurring temporary event. For example, retailing at flea markets and farmers' markets is prohibited.

C. No retailer permit may be issued to authorize retailing at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State of 374
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California in accordance with the Business and Professions Code and where prescription drugs are offered for sale.

1. Any retailer of tobacco products operating lawfully on the date immediately prior to this Chapter becoming effective provided that the retailer obtains a permit prior to July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B); and

2. Any lawfully operating retailer of tobacco products that would otherwise become ineligible to receive or renew a retailer permit due to the creation or relocation of a school.

E. No retailer permit may be issued to authorize retailing at a location which is within five hundred feet of a location occupied by another retailer, as measured by a straight line between any point along the perimeter of an existing retailer’s business location and any point along the perimeter of the applicant's proposed business location, provided, however, that the prohibition contained in this paragraph shall not apply to existing retailers of tobacco products operating lawfully on the date immediately prior to this Chapter becoming effective provided that the retailers obtain a permit prior to July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renew their permits pursuant to

5.50.070(B).
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F. Any exemption granted to a retailer pursuant to this Chapter shall cease to apply upon the earlier of the following to occur:

1. The retailer fails to timely renew the retailer permit pursuant to this Chapter.

2. A new person obtains ownership in the business.

5.50.050 Application procedure.

A. It is the responsibility of each retailer to be informed of all laws applicable to retailing, including those laws affecting the issuance of a retailer permit. No retailer may rely on the issuance of a retailer permit as a determination by the City that the retailer has complied with all laws applicable to retailing. A retailer permit issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information supplied by a retailer shall be revoked pursuant to this Chapter.

B. All retailer permit applications shall be submitted on a form supplied by the City or its designee to implement this Chapter.

C. A permitted retailer shall inform the City or its designee in writing of any change in the information submitted on an application for a retailer permit within fourteen calendar days of a change.

D. All information specified in an application pursuant to this Chapter shall be subject to disclosure under the California Public Records Act (Government Code Section 6250 et seq.) or any other applicable law, subject to any exemptions.

5.50.060 Permit issuance, denial, and revocation.

A. Upon the receipt of a complete application for a retailer permit, the application fee, and the annual permit fee, the City or its designee shall issue a retailer permit 376
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unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false.

2. The application seeks authorization for retailing at a location for which this Chapter prohibits issuance of a retailer permit.

3. The application seeks authorization for retailing by a person to whom this Chapter prohibits issuance of a retailer permit.

4. The application seeks authorization for a retailer whose permit has previously been revoked or who has otherwise violated any provision of this Chapter within the last 60 months.

5. The application seeks authorization for retailing that is prohibited pursuant to this Chapter or that is unlawful pursuant to any other law.

6. The application seeks authorization for Retailing by a Retailer who has failed to pay any fees, penalties, or reinspection fees required by this Chapter.

B. A retailer permit shall be revoked if the City or its designee finds that one or more of the bases for denial of a retailer permit under this Chapter existed at the time application was made or at any time before the retailer permit issued. Such a revocation shall be without prejudice to the filing of a new permit application.

C. A violation of this Chapter may result in suspension or permanent revocation of a permit pursuant to Section 5.50.130.

5.50.070 Permit term, conditions, renewal, and expiration.

A. Term of permit. The term of a retailer permit is one year. A retailer permit is invalid upon expiration.
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B. Conditions of permit. As conditions of permit issuance and retention, retailer shall:

1. Allow compliance inspections as described in this Chapter and expressly consent to inspection of all area and records of retailer’s business required to effectuate the purpose of this Chapter, including unlocking and allowing access to any area of retailer’s business requested by any individual authorized to monitor and facilitate compliance with this Chapter.

2. Comply with any order of the City to impound any product not authorized to be sold by this Chapter and cooperate with any City seizure of any product, subject to appeal of those actions.

3. Failure to comply with these permit conditions may result in permit suspension or revocation as described in Section 5.120.

C. Renewal of permit. The City or its designee shall renew a valid retailer permit upon timely payment of the annual permit fee provided that the retailer complies with this Chapter, as amended. The City or its designee may, in its discretion, agree to renew any expired retailer permit within the three-month period following expiration if the retailer pays the annual permit fee and applicable late charges. For every calendar month, or fraction thereof, that a retailer fails to renew an expired retailer permit, a late charge equal to twenty percent of the annual permit fee shall be assessed. A retailer permit renewed within three calendar months of expiration shall be treated as if timely renewed.

D. Issuance of permit after revocation or expiration of permit. To apply for a new retailer permit more than three calendar months after expiration of a retailer permit or following revocation of a retailer permit that was wrongly issued, a 378
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retailer must submit a complete application for a retailer permit, along with the application fee and annual permit fee. The City or its designee shall issue a retailer permit pursuant to the requirements of this Chapter.

5.50.080 Permits nontransferable.

B. Notwithstanding any other provision of this Chapter, prior violations of this Chapter at a location shall continue to be counted against a location and permit ineligibility and suspension periods shall continue to apply to a location unless:

1. One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to one or more new owners; and

2. The City or its designee is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an arm's length transaction.

5.50.090 Permit conveys a limited, conditional privilege.

Nothing in this Chapter shall be construed to grant any person obtaining and maintaining a retailer permit any status or right other than the limited, conditional privilege to act as a retailer at the location in the City identified on the face of the permit. All permits are issued subject to the City’s right to amend this chapter, and retailers shall comply with all provisions of this Chapter, as amended. 379
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5.50.100 Fees.

The City or its designee shall not issue or renew a retailer permit before full payment of any applicable fees. The City shall, from time to time, establish by resolution or ordinance the fees to issue or to renew a retailer permit. The fees shall be calculated so as to recover the cost of administration of this Chapter, including, for example, issuing a permit, administering the permit program, conducting retailer education, routine retailer inspection and compliance, but shall not exceed the cost of the regulatory program authorized by this Chapter. All fees and interest earned from such fees shall be used exclusively to fund administration and enforcement of this Chapter.

5.50.110 Compliance monitoring.

A. Compliance with this Chapter shall be monitored by the City or its designee. In addition, any peace officer may enforce the penal provisions of this Chapter. The City Manager may designate any number of additional persons to monitor and facilitate compliance with this Chapter.

B. The City or its designee shall monitor each retailer at least once per twelve-month period to determine if the retailer is complying with all laws applicable to retailing, other than those laws regulating underage access to tobacco products.

Nothing in this paragraph shall create a right of action in any retailer or other person against the City or its agents.

5.50.120 Prevention of underage sales.

A. The City or its designee shall monitor each retailer to determine whether the retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products. Nothing in this paragraph shall create a right of action in any retailer or other person against the City or its agents. 380
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B. The City or its designee shall not enforce any law establishing a minimum age for tobacco product purchases against a person who otherwise might be in violation of such law because of the person’s age (“youth decoy”) if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the City or its designee;

2. The youth decoy is acting as an agent of a person designated by the City or its designee to monitor compliance with this Chapter; or

3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the City, or the California Department of Public Health.

5.50.130 Permit suspension or revocation.

A. Permit suspension. In addition to any other penalty authorized by law, the City may suspend a permit if the City demonstrates that the retailer or any of the retailer’s agents or employees has violated any of the requirements, conditions, or prohibitions of this Chapter. The period of the suspension shall be as follows:

1. A suspension not to exceed 30 calendar days for an initial violation.

2. A suspension not to exceed 180 calendar days if a retailer commits a violation or violations during two instances within a 60-month period.

3. When a Permit is suspended based on a violation of this chapter, the City shall post a placard at the physical location used for retailing tobacco products to notify the general public of the suspension. The placard shall be:
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(A) Posted in the front window of the storefront used for retailing tobacco products within five feet of the front door; or
(B) Posted in a display case mounted on the outside front wall of the physical location used for retailing tobacco products within five feet of the front door; or
(C) Posted in a location approved by the Director to ensure proper notice to the general public and to patrons of the physical location used for retailing tobacco products.
(D)Once attached to a building or structure, a placard is not to be removed, altered, or covered until done so by an authorized representative of the City or upon written notification from the City.

C. Waiver or reduction of fines and penalties for first violation. The City or its designee may, in its sole discretion, waive or reduce any fines and penalties for a retailer's first violation of this section, if the retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the City’s or its designee’s waiver of penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocation for any future violation. This paragraph shall not apply to any violation involving a law regulating youth access to tobacco products.

D. Corrections period. The City or its designee shall have discretion to allow a retailer a period of time to correct any violation of any requirement, condition or 382
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prohibition of this Chapter, other than a violation of a law regulating youth access to tobacco products. If the City or its designee exercises its discretion to provide a corrections period and a retailer’s violation is corrected within the time allowed for correction, no penalty shall be imposed under this Chapter.

E. Written notice of penalties. Whenever an administrative citation is issued and/or a permit is suspended or revoked based on a violation of this Chapter, the City or its designee shall provide the retailer written notice of the violation and the fine and suspension or revocation, including when the suspension or revocation shall take effect.

F. Appeals. The suspension or revocation of a permit may be appealed in the same manner as the appeal of an administrative citation pursuant to Section 1.10.090.

G. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the City is issued.

5.50.140 Enforcement.

A. Any violation of this Chapter is subject to administrative citation pursuant to Chapter 1.10.

B. Any violation of this Chapter is hereby declared to be a public nuisance.

C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter.

D. Whenever evidence of a violation of this Chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required over his or her objection to appear or give testimony in any civil or administrative process brought to enforce this Chapter and the alleged 383
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violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

E. Violations of this Chapter may be remedied by a civil action brought by the City.

F. For the purposes of the civil and administrative remedies provided in this Chapter, each day on which a product is offered for sale in violation of this Chapter, and each individual product that is distributed, sold, or offered for sale in violation of this Chapter, shall constitute a separate violation of this Chapter.

G. Impoundment.

1. Based upon inspection findings or other evidence, the City may impound tobacco products that are suspected of being or found to be offered for sale or distribution in violation of this Chapter. The City may affix a label to the product that shall be removed only by the City following final written determination by the City as described below.

2. No impounded tobacco products shall be used, removed, disposed, or offered for sale unless the impoundment has been released.

3. Within 30 days of final determination whether impounded products are authorized for sale under this Chapter, the City shall release the impounded materials or order that unauthorized, impounded product shall be destroyed and properly disposed of at the cost of the retailer. The decision by the City may be appealed pursuant to the procedures set forth in Section 1.10.090.

H. Seizure. Tobacco products offered for sale in violation of this Chapter are subject to seizure by the City and shall be forfeited after the retailer of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this Chapter. 384
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The decision by the City may be appealed pursuant to the procedures set forth in Section 1.10.090. Forfeited tobacco products shall be destroyed and properly disposed at the cost of the retailer after all administrative appeals have been exhausted and the time in which to seek judicial review has expired.

I. All retailers are responsible for the actions of their employees relating to compliance with this Chapter. The sale, offer to sale, or furnishing of any tobacco products by an employee shall be considered an act of the retailer.

J. Any retailer found to be in violation of this Chapter shall pay all costs related to enforcement to ensure retailer’s compliance with this Chapter, including but not limited to fees for reinspection to determine compliance after a violation, enforcement costs, litigation costs, and attorneys’ fees in any administrative or civil matter in which the City prevails.

K. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

5.50.150 Interpretation.

A. Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by, or in conflict with, federal or state law, rules, or regulations.

B. Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a tobacco product by any person not engaged in the retailing of such products.
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September 8, 2023
Dear Business Owner,
The City of Cupertino is reaching out to inform you about proposed changes to the City’s Tobacco Retailer Permit (TRP) Ordinance (CMC Ch. 5.50), which may impact your business. The TRP program in Cupertino is currently enforced by Santa Clara County’s Public Health Department.

Proposed changes to the TRP Ordinance currently under consideration, include, but are not limited to, the following:

1. Establish fines of up to $2,500 and up to a 180-day suspension of the business’s TRP permit for a second violation of the TRP ordinance within a 5-year period.

2. Require the permanent removal of a TRP for a third violation within a 5-year period. Any business continuing to sell tobacco products after TRP revocation will be subject to additional fines.

3. Increase fines and penalties for retailers operating without a valid permit as follows:
• Fines up to $2,500 and 30 days of ineligibility for an initial violation. • Fines up to $5,000 and one year of ineligibility for a second violation within a five-year period.
• Fines up to $10,000 and permanent TRP ineligibility for each subsequent violation within a five-year period.

4. Require businesses that have their TRP suspended to post a prominent public notice at their business during the entire suspension period.

5. Require businesses, as a condition of its TRP, to (1) consent to inspection by the County of all areas and records; and (2) comply with any impound or seizure order issued by the County.

Violations of these provisions would be a basis for suspension/revocation of a TRP.

6. Requires that if inspections reveal noncompliance with any of the ordinance requirements, such that reinspection is needed to determine compliance, the cost of such reinspection will be billed to the retailer.

7. Clarify that a retailer is liable for all enforcement-related fees and costs.

9. Requires businesses to examine an individual’s identification to confirm the age of that person, regardless of appearance, prior to selling tobacco products to any person.

The proposed changes will be heard and voted on at the September 19, 2023 City Council meeting.

There will be an opportunity for public comment (in person or via Zoom) about the proposals during 386
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the meeting. To view meeting materials for this topic, including the proposed ordinance, please view the agenda materials here. Meeting materials are normally available three full business days before each meeting, therefore materials should be posted by Wednesday afternoon on October 4, 2023.

If you are unable to attend the meeting, you are welcome to share your feedback by contacting Andy Schramm, Administrative Assistant, at (408) 777-3200 or [email protected]. 387
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CITY OF CUPERTINO
Agenda Item
23-12341 Agenda Date: 9/19/2023
Agenda #: 11.

Subject: Revisions to City of Cupertino Ethics Policy
Direct the City Attorney to revise the City of Cupertino Ethics Policy to incorporate the provisions of the 2018 City’s Ethics Code, as amended to ensure consistency with the City Council Procedures Manual and to address recommendations of the City’s internal auditor, and provide direction on any additional Ethics Policy revisions
Presenter: Christopher Jensen, City Attorney
CITY OF CUPERTINO Page 1 of 1 Printed on 9/13/2023
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CITY COUNCIL STAFF REPORT
Meeting: September 19, 2023
Subject
Revisions to City of Cupertino Ethics Policy
Recommended Action
Direct the City Attorney to revise the City of Cupertino Ethics Policy to incorporate the provisions of the 2018 City’s Ethics Code, as amended to ensure consistency with the City Council Procedures Manual and to address recommendations of the City’s internal auditor, and provide direction on any additional Ethics Policy revisions.

Reasons for Recommendation
Background
The City Council adopted the current City of Cupertino Ethics Policy (Resolution No. 20-011, Attachment A) on January 21, 2020. The January 2020 Ethics Policy replaced the policy adopted by Council in November 2018 (Resolution No. 18-115, Attachment B), which the City Council voted to rescind on January 15, 2019.

The rescission and replacement of the City’s Ethics Policy was identified as an area of concern by the Santa Clara County Civil Grand Jury’s December 2022 Report, “A House Divided: Cupertino City Council and Staff” (Attachment C). The Grand Jury Report, which addressed various governance issues in the City of Cupertino, noted that the January 2020 Ethics Policy “is less comprehensive [than the November 2018 Code] and ignores the subject of councilmanic interference found in the rescinded version” and found that “the rationale for creating a policy with generic ethics goals and no enforcement provisions was to avoid accountability.” Based on these findings, the Grand Jury recommended that the City should (i) develop and implement a robust government ethics training program for all councilmembers; and (ii) evaluate a best practices enforceable Code of Ethics and Conduct Policy that governs all councilmembers and appointed officials for consideration by the City Council.

As part of the City’s response to the Grand Jury Report, the City Attorney’s Office retained Linda Daube, Esq. to investigate the basis for the Grand Jury’s findings. With respect to the Ethics Policy, Ms. Daube concluded that the City Council’s adoption of the 389
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City Council Procedures Manual in February 2023 effectively addressed many of the concerns cited in the Grand Jury Report, including the absence of standards regarding councilmanic interference in the January 2020 Ethics Policy. (See Fact-Finding Report, Attachment D.) Ms. Daube concluded that the Council Procedures Manual “more than adequately addresses the Report's concerns regarding the City's Ethics Policy and serves as an effective oversight tool until such time as a final policy for both Councilmembers and appointed Commissioners can be developed and approved.” That being said, Ms.

Daube recommended a revision of the current Ethics Policy using the November 2018 Ethics Code as “the recommended starting point.” On May 9, 2023, the City Council considered Ms. Daube’s report and directed staff to return to Council with an agenda item to consider revisions to the current Ethics Policy, consistent with Ms. Daube’s recommendation.

In addition to Ms. Daube’s report, the July 2023 Enterprise Leadership Assessment prepared by the City’s internal auditor, Moss Adams LLP, addressed the need to refine the City’s current ethics policies (Attachment E). The Enterprise Leadership Assessment notes the Grand Jury’s finding regarding deficiencies in the City’s current Ethics Policy, but notes enforcement provisions in the recently adopted City Council Procedures Manual that partially address the Grand Jury’s concerns. The Assessment recommends that the City continue reviewing its Ethics Policy to ensure that it aligns with best practices and includes a specific recommendation to address an identified gap in Political Reform Act compliance among City commissioners, stating that the City should “strengthen internal processes for tracking and holding elected and appointed individuals accountable to timely completion of Form 700 Disclosures and any other required documentation. If governance group members have not completed this form in a timely manner, they should face disciplinary action up to and including removal from their position.”
Discussion
Council has directed staff to consider the 2018 Ethics Code as the “starting point” for revisions to the current Ethics Policy. Readoption of the 2018 Code with limited revisions would align with best practices and would strengthen the City’s ethics compliance regime. However, Council may consider additional revisions based on consideration of its policy goals and the results of public outreach. Each of these considerations is discussed below.

Goals and Content of Ethics Policies
The goals of municipal ethics policies include (1) encouraging high standards of behavior by public officials; (2) increasing public confidence in the institutions that serve the public; and (3) assisting public officials with decision-making.

Ethics policies may either be rules- or values-based. Rules-based municipal ethics policies often overlap significantly with state ethics laws. Values-based policies emphasize values and encouraging behavior that supports those values. Values-based 390
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policies represent a commitment to uphold a standard of integrity and competence beyond what is required by law. Both the 2018 and 2020 Cupertino Ethics Policies include both rules- and values-based components.

The adoption of an ethics policy requires consideration of a number of questions:

1. Should the policy apply to elected officials only; to elected and appointed officials; or to elected and appointed officials and City staff?

2. What values should be reflected in the policy?

3. Should any rules beyond the requirements of state ethics law be included in the policy?

4. How should the policy be enforced?

5. Should the policy include provisions for training and periodic review? While the 2018 Ethics Code aligns with best practices and could be adopted with limited revisions, Council may wish to consider these questions in providing direction to staff regarding revisions to the Ethics Policy.

Public Outreach
On August 24, 2023, staff released a survey developed based on Institute for Local Government principles to solicit community input on revisions to the Ethics Policy (Attachment F). The results of the survey are provided in Attachment G.

The survey asked participants to identify four values that are most important for local officials to uphold, listing the following options:
• Integrity and honesty
• Responsibility and community service
• Fairness
• Respect for fellow officials, staff and the public
• Compassion
• Proper efficient use of public resources
• Loyalty to the agency
• Vision
• Other
The survey then asked follow up questions about each of the values. The four highest ranked values were integrity and honesty, proper efficient use of public resources, responsibility and community service, and fairness. Full results of the survey can be found in Attachment G.

Recommendations
The 2018 Ethics Code aligns with best practices and is consistent with the recommendations in the Grand Jury Report and Enterprise Leadership Assessment. Staff 391
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believes that re-adopting the Code with limited changes to ensure consistency with the recently adopted City Council Procedures Manual would be responsive to the concerns of the Grand Jury and City’s internal auditor and would complement the City’s broader efforts to strengthen governance-related policies. In addition, staff recommends that any revision or re-adoption of the Ethics Policy address the internal auditor’s concern regarding lack of accountability for completing required Form 700 disclosures.

Council may consider additional revisions based on the results of public outreach presented in Attachment G and its own review of the questions presented above and in the Ethics Code Menu/Worksheet (Attachment F). If Council provides direction to move forward with revisions to the Ethics Policy, staff will return to Council with a final Policy and a resolution adopting the Policy.

California Environmental Quality Act
Not applicable.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.
_____________________________________
Prepared by: Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Resolution No. 20-011 (Adopting the City of Cupertino Ethics Policy) B – Resolution No. 18-115 (Adopting the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials)
C – Civil Grand Jury Report, “A House Divided: Cupertino City Council and Staff” D – Fact-Finding Report
E – Enterprise Leadership Assessment
F – Ethics Code Menu/Worksheet
G – Survey Results
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RESOLUTION NO. 20-011

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

ADOPTING THE CITY OF CUPERTINO ETHICS POLICY
WHEREAS, the City Council of the City of Cupertino has determined that an Ethics Policy benefits the public by increasing public confidence in the integrity of local government and its effective and fair operations; and WHEREAS, the Cupertino Ethics Policy will guide the conduct of the City Council, officials appointed by the Council, and City staff (collectively "public officials") and support their independent, impartial, and fair decision-making and execution of policy; and
WHEREAS, City Council wishes to maintain an atmosphere of respect and civility in the performance of City affairs and public business.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby adopt the attached "City of Cupertino Ethics Policy"
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 21st day of January, 2020, by the following vote:

Vote Members of the City Council
A YES: Scharf, Paul, Chao, Sinks
NOES: None
ABSENT: Willey
ABSTAIN: None
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ATTEST:
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CITY OF CUPERTINO ETHICS POLICY
The citizens, businesses, and organizations of the City are entitled fair, ethical, and accountable local government that has earned the public's full confidence for integrity.

To this end, the City Council has adopted this Ethics Policy for City Council, appointed officials, and staff of the City of Cupertino to promote public confidence in the integrity of local government and its effective and fair operation.

A. Comply with Law
City elected/appointed officials and staff comply with the laws of the nation, the State of California and the City in the performance of their public duties. These laws include, but are not limited to: the United States and California constitutions, the Cupertino Municipal Code, City ordinances and policies, and laws pertaining to conflicts of interest, election campaigns, financial disclosures, employer responsibilities and open processes of governments. The City ensures its elected/appointed officials and staff receive regular training on ethics as required by state law.

B. Conduct of Members
The professional and personal conduct of City elected/appointed officials and staff should be respectful of others, recognizing that individuals can respectfully disagree with each other. City elected/appointed officials and staff should refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of others, including members of the Council, boards and commissions, the staff, or the public.

C. Respect for Process
City elected/appointed officials and staff perform their duties in accordance with various processes and rules of order established from time to time by the City Council governing the deliberation of public policy issues, conduct of quasijudicial proceedings, meaningful involvement of the public, and implementation of policy decisions of the City Council by City staff.

D. Decisions Based on Merit
City elected/appointed officials and staff make their decisions in the best interest of the City, which might include relevant policy considerations, rather than on unrelated considerations.

E. Conflict of Interest
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The City's ethics policy regarding conflicts of interest is to comply with all applicable ethics rules in the State of California. This Policy is not intended to go beyond or expand upon those rules. In general, in order to assure their independence and impartiality on behalf of the common good, City elected/appointed officials and staff do not use their official positions to participate in or influence decisions in which they have a material financial interest, an organizational responsibility, or a dose familial or embroiled personal relationship.

F. Gifts and Favors
City elected/appointed officials and staff limit and report gifts as required by state law, and follow advice provided by the City Attorney.

G. Confidential Information
City elected/appointed officials and staff respect the confidentiality of information concerning the property, personnel, and affairs of the City. They neither disclose confidential information without proper legal authorization, nor use such information to advance their personal, financial or other private interests.

H. Use of Public Resources
City elected/appointed officials and staff do not use public resources, such as City staff time, equipment, supplies or facilities, for private gain or personal/political purposes (except to the extent those resources are available to the public generally).

I. Representing the City & Advocacy
When formally authorized to represent and/or advocate for the official policies or positions of the City, elected/appointed officials and staff must do so accurately and in a limited fashion that does not go beyond the scope of their authority. By contrast, when City elected/appointed officials and staff are presenting their individual opinions and positions on issues potentially relevant to the City, they must explicitly state they do not represent their body or the City and must not allow any inference that they do.

J
. Positive Work Place Environment
City elected/appointed officials and staff support the maintenance of a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City. City elected/appointed officials recognize their special role in dealings with City staff, taking care not to create any perception of inappropriate direction to staff.
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RESOLUTION NO. 18-115

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

ADOPTING THE CITY OF CUPERTINO CODE OF ETHICS AND CONDUCT

FOR ELECTED AND APPOINTED OFFICIALS
WHEREAS, the City Council of the City of Cupertino has determined that a Code of Ethics and Conduct benefits the public by increasing public confidence in the integrity of local government and its effective and fair operations; and WHEREAS, the Cupertino Code of Ethics and Conduct will guide the conduct of Elected and Public Officials and support their independent, impartial, and fair decision- making and execution of policy; and
WHEREAS, City Council wishes to maintain an atmosphere of respect and civility in the performance of City affairs and public business.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby adopts the attached " City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials"
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 2Qth day of November, 2018, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:

Members of the City Council
Paul, Sinks, Chang, Scharf, Vaidhyanathan
None
None
None
APPROVED:

Grace Schmidt, City Clerk ~: yPaul,~~
City of Cupertino
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CUPERTINO
City of Cupertino
Code of Ethics and Conduct
For
Elected and Appointed Officials
Adopted November 2ot1,, 2018 by Resolution No. 18-115
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PURPOSE
The Cupertino City Council adopts this Code of Ethics and Conduct as guidelines for elected and appointed officials to exercise their office and conduct themselves in a manner that instills public confidence and trust in the fair operation and integrity of Cupertino' s city government. 1 In accordance with State law and Title 2 of the Cupertino Municipal Code, Cupertino' s elected and appointed officials include the members of the City Council, the Mayor, appointed officers of City boards and commissions, the City Manager, the City Attorney, the City Clerk and the City Treasurer.

ETHICS
The citizens and businesses of Cupertino and the general public are entitled to have fair, ethical, and accountable local government. To this end, the public should have full confidence that their elected and appointed officials:

Comply with both the letter and spirit of the law and policies affecting the operations of government and their respective roles and responsibilities; and
Are independent, impartial, and fair in their judgment and actions; and Use their public office for the public good and not for personal gain; and Conduct their deliberations and make their decisions in an atmosphere of respect and civility, and during public meetings in accordance with Open Meeting laws, except for confidential proceedings allowed by law.

Therefore, members of the City Council, City Boards and Commissions, the City Clerk, the City Treasurer, the City Manager and the City Attorney ( hereinafter, City Officials") should conduct themselves in accordance with the following ethical standards:

1. Act in the Public Interest. Recognizing that stewardship of the public interest must be their primary concern, City Officials will work for the common good of the people of Cupertino and not for any private or personal interest, and they will assure fair and equal treatment of all persons, claims, and transactions coming before them.
1 These guidelines are intended to codify the values ofthe City of Cupertino relative to the conduct of its elected and appointed officials and in no way distract from or supersede the many other rules and laws that govern city officials.

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2. Comply with both the spirit and the letter of the Law and City Policy.

City Officials must comply with applicable federal, state and local laws in the performance of their public duties. These include the United States and California constitutions; the Cupertino Municipal code; laws concerning financial disclosures; sources of income and gifts; conflicts of interest laws; elections; campaign contributions; incompatible offices; employer responsibilities; and open government rules.

3. Conduct of City Officials. The professional and personal conduct of City Officials while exercising their office must be above reproach and avoid situations that create the appearance of impropriety. Officials must refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of other City Officials, city staff, or the public.

4. Respect for Process. City Officials will perform their duties in accordance with the processes and rules of order established by the City Council.

5. Conduct at Public Meetings. City Officials will come prepared to address items and issues at public meetings; will listen courteously and attentively to all public discussions before the body; and will focus on the business at hand.

6. Decisions Based on Merit. City Officials will base their decisions on the merits and substance of the matter at hand, rather than on unrelated considerations. When making adjudicative decisions that require determination of the facts of a particular case and application of the law and rules, decision- makers will maintain an open mind until the conclusion of the hearing on the matter and will base their decisions on the facts presented at the hearing and the law.

7. Communication. For adjudicative matters pending before the body, City Officials will rely on the agenda materials and information received at the public meeting to support their decision. To the extent substantive or material information is received outside of a public meeting, decisionmakers must, at a minimum, publicly disclose the circumstances and the outside source of information. Consultation with the City Attorney is strongly advised to ensure the integrity and legality of decisions made on adjudicative matters.

8. Conflict of Interest. To maintain independence and impartiality for the common good and comply with the extensive set of conflict of interest 400
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laws, City Officials will use caution and their best efforts to avoid the appearance of impropriety in their actions and decisions. Consistent with the law, decision- makers will not use their official positions to influence government decisions in which they have (a) a material financial interest, b) an organizational responsibility to or personal commitment to others that creates a conflict of interest or the appearance of one, or ( c) a strong personal bias as to one party or position.

Potential conflicts of interest should be discussed with the City Attorney at the earliest opportunity prior to a public meeting or hearing in order to ensure time to research and analyze the facts. Decision- makers are referred to the Cupertino Municipal Code, Section 2.18.030, which provides, among other things, that the City Attorney may render informal advice to individual Councilmembers regarding potential conflicts of interest, as appropriate. However, it is understood that Councilmembers are protected from potential liability for a conflict of interest only upon taking action that complies with a written opinion issued by the California Fair Political Practices Commission ( FPPC).

Ifinformed to seek formal advice from the FPPC or other State agency, a member will not participate in a decision until the FPPC has issued a written opinion that concludes there is no conflict. The member will provide the City Attorney a copy of the written request to the FPPC and the opinion, and will conform his or her participation to the advice given.

If a conflict of interest exists regarding a particular matter or decision, the member will not participate in the decision or discuss the matter with other decision- makers or other persons, unless otherwise permitted by law.

9. Gifts and Favors. Public Officials will not take advantage of services or opportunities for personal gain, by virtue of their public office, which is not available to the general public. They should refrain from accepting gifts, favors or promises of future benefits, which might compromise their independence of judgment or action or give the appearance of impropriety.

10. Confidential/ Privileged Information. Public Officials have a duty to maintain the confidentiality of privileged documents and communications and the legal advice provided to or by them, in accordance with the law.

This includes information gathered during a closed session and advice rendered by the City Attorney. Members will not disclose confidential or 401
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privileged information without proper legal authorization, nor use such information to advance their personal, financial, or other private interests.

11. Use of Public Resources. Public Officials should not use public resources which are not available to the public in general ( e.g., City staff time, equipment, supplies, or facilities) for private gain or for personal purposes not otherwise authorized by law.

12. Representation of Private Interests. In keeping with their role as independent representatives of the City and stewards of the public interest, Councilmembers should not appear on behalf of the private interests of third parties before the Council or any Commission or proceeding of the City, nor should members of Commissions appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies.

13. Advocacy. Members should represent the official policies and positions of the City Council and Commission to the best of their ability when designated as delegates for this purpose. When presenting their individual opinions and positions, members should explicitly state they are speaking in their personal capacity and not in their official capacity as members of their respective bodies. When speaking in their personal capacities, members should state their views do not represent their bodies' official positions. Councilmembers and Commissioners have the right to endorse candidates for Council seats and other elected offices; however, it is inappropriate to mention or display endorsements during Council meetings, Commission meetings, or other official City meetings, unless otherwise allowed by law.

14. Policy Role of Members. Members should respect and adhere to the Council- Manager structure of Cupertino City government as outlined in the Cupertino Municipal Code. In this structure, the City Council determines the budget priorities and policies of the City with input provided by City staff and Commissions and the general public. Members should not interfere with the administrative functions of the City or the professional duties of City staff; nor should they impair the ability of staff to implement Council policy decisions .

15. Independence of Commissions. Because of the value of the independent advice of Commissions to the public decision- making process, members of 402
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the City Council should refrain from using their position to unduly influence the deliberations or outcomes of Commission proceedings.

16. Positive Work Place Environment. Public Officials should support a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City. Members should recognize their special role with City employees and in no way create the perception of inappropriate direction to staff.

CONDUCT GUIDELINES
The Conduct Guidelines are designed to describe the manner in which City Officials should treat one another, City staff, constituents, and others they come into contact with while representing the City of Cupertino.

1. City Officials' Conduct with Each Other in Public Meetings and Private Encounters
Elected and appointed officials are individuals with different backgrounds, personalities, values, opinions and goals, who have chosen to serve in public office to protect the City' s interests and the wellbeing of the community they serve. In all cases, this common goal should guide officials' conduct with each other and with the public, particularly when individuals may not agree on every issue.
a) Respect and facilitate the role of the Chair in maintaining order It is the responsibility of the Chair to keep comments of City Officials on track during public meetings. City Officials should recognize and assist the Chair to focus discussion on noticed agenda items. If there is disagreement about the agenda or the Chair' s actions, those objections should be voiced politely and with reason, following procedures outlined in parliamentary procedure.
b) Practice civility and decorum in discussions and debate Difficult questions, challenges and disagreements with a particular point of view, and criticism of ideas and information are legitimate elements of debate and public discourse of a free democracy in action.

Robust discussion and free debate, however, do not justify making belligerent, personal, impertinent, slanderous, threatening, abusive or disparaging comments.
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c) Work through the Chair to address offensive personal comments If a member is personally offended by the remarks of another member, the offended member should make notes of the actual words used and call for a " point of personal privilege" that challenges the other member to justify or apologize for the language used. The Chair will maintain control of this discussion.
d) Demonstrate effective problem- solving approaches
City Officials have a public stage and have the responsibility to show how individuals with different points of view can find common ground and seek a compromise that benefits the community as a whole.
e) Continue respectful behavior in private
The same level of respect and consideration of differing points of view that is appropriate for public discussions should be maintained in private conversations.

2. City Officials' Conduct with the Public in Public Meetings Making the public feel welcome is an important part of the democratic process. No signs of partiality, prejudice, or disrespect should be evident on the part of individual City Officials toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony.
a) Chair' s responsibility to establish proper decorum at meetings The Chair will be responsible for informing the public of proper decorum during meetings to facilitate a welcoming environment for speakers. The Chair should establish an expectation of mutual respect among City officials, the public, and speakers.
a) Be welcoming to speakers and treat them with respect Members' primary responsibility during public testimony is to listen.

Welcome all public speakers and encourage their active participation in public meetings by listening to their comments. A void engaging public speakers in debate, and call on the Chair whenever a point of order or clarification is required.
b) Be fair and equitable in allocating public hearing time to individual speakers Consistent with legal requirements, the Chair will determine and 404
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announce limits on speakers at the start of a public meeting or hearing process.
c) Practice active listening
It is disconcerting to some speakers to have members not look at them when they are speaking. It is fine to look down at documents or to make notes, but reading for a long period of time or gazing around the room may give the appearance of disinterest. Members should try to be conscious of facial expressions, and avoid those that-could be interpreted as " smirking," disbelief, anger or boredom. d) Maintain an open mind
Members of the public deserve an opportunity to influence the thinking of elected and appointed officials.
e) Ask for clarification, but avoid debate and argument with the public Only the Chair - not individual members - can interrupt a speaker during a presentation. However, a member can ask the Chair for a point of order if the speaker is off topic, exceeds the time allotted for public comment, or engages in behavior or discussion/ language that is disruptive or violates the law.
f) Avoid personal comments that could offend members ofthe public Whether addressing an individual member of the public or the public at large, itis never appropriate to make belligerent, personal, impertinent, slanderous, threatening, abusive, or disparaging comments.

3. City Officials' Conduct with the Public in Unofficial Settings a) Make no promises on behalf of the Council, Commission or City Members will frequently be asked to explain a Council or Commission action or to give their opinion about an issue as they meet and talk with constituents in the community. It is appropriate to give a brief overview of City policy and to refer to City staff for further information. It is not appropriate to overtly or implicitly promise Council or Commission action, or to promise that City staff will do something specific for the constituent.
b) Make no personal comments about other City Officials It is acceptable to publicly disagree about an issue, but it is not 405
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acceptable to make derogatory comments about other City Officials, their opinions, or actions.

4. City Officials' Conduct with City Staff
Governance of a city relies on the cooperative efforts of elected officials who set policy, appointed officials who advise the elected, and City staff who implement and administer the Council' s policies. Therefore, every effort should be made to be cooperative and show mutual respect for the roles and contributions made by each individual for the good of the community.

The City of Cupertino operates under a Council/ Manager form of government as established in Cupertino Municipal Code Chapter 2.28 whereby the City Council controls the administrative services of the City only through the City Manager. The Council/ Manager form of government is intended to provide the best of unencumbered professional/ technical staff input balanced with the collective oversight of elected officials. Under the Council/ Manager form of government neither the City Council, nor individual Council members, can give orders to any subordinate of the City Manager. The City Manager takes his or her orders and instructions from the City Council only when given at a duly held meeting of the City Council. No individual Councilmember can give any orders or instructions to the City Manager. Interactions between City Council and City staff are governed by Chapter 2.17 in the Cupertino Municipal Code. a) Treat all staff as professionals
Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected. Poor behavior towards staff is not acceptable.
b) Do not disrupt City stafffrom their jobs
City Officials should not disrupt City staff while they are in meetings, on the phone, or engrossed in performing their job functions in order to have their individual needs met. Do not attend City staff meetings unless requested by staff - even if the elected or appointed official does not say anything, his or her presence implies support of a position, shows partiality, may intimidate staff, and may hampers staff' s ability to do their job objectively.
c) Never publicly criticize an individual employee
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City Officials should not criticize the performance of City employees in public, to the employee directly, or to the employee' s manager.

Comments about staff performance should only be made to the City Manager through private correspondence or conversation. Appointed officials should make their comments regarding staff to the City Manager.
d) Do not get involved in administrative junctions
City Officials acting in their individual capacity must not attempt to influence City staff on the making of appointments, awarding of contracts, selecting of consultants, processing of development applications, or granting of City licenses and permits. e) Do not solicit political support from staff
City Officials should not solicit any type of political support ( financial contributions, display of posters or lawn signs, name on support list, etc.) from City staff. City staff may, as private citizens with constitutional rights, support political candidates, but all such activities must be done away from the workplace.
f) Attorney- Client Relationship
The City Attorney provides advice to City staff, to Public Officials, and to Councilmembers individually and collectively. In accordance with law and Rules of Professional Conduct, the City Attorney represents the full City Council and the City as a municipal organization, and any attorney- client relationship established belongs to the City, acting by and through the full City Council. To the extent permitted by law, only the City Council as a body and not individual councilmembers can waive the attorney- client privilege.

5. Council Conduct with Commissions
The City has established several Commissions as a means of gathering more community input. Citizens who serve on Commissions become more involved in government and serve as advisors to the City Council. They are a valuable resource to the City's leadership and should be treated with appreciation and respect.
a) If attending a Commission meeting, be careful to only express personal opmzons
Councilmembers may attend any Commission meeting, which are 407
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always open to any member of the public. However, they should be sensitive to the way their participation could be viewed as unfairly affecting the process. Any public comments by a Councilmember at a Commission meeting should be clearly made as individual opinion and not a representation of the feelings of the entire City Council.
b) Limit contact with Commission members to questions of clarification It is inappropriate for a Councilmember to contact a Commission member to lobby on behalf of an individual, business, or developer, and vice versa. It is acceptable for Councilmembers to contact Commission members in order to clarify a position taken by the Commission.
c) Respect that Commissions serve the community, not individual Cou ncilmembers
The City Council appoints individuals to serve on Commissions, and it is the responsibility of Commissions to follow policy established by the Council. But Commission members do not repqrt to individual Councilmembers, nor should Councilmembers feel they have the power or right to threaten Commission members with removal if they disagree about an issue. Appointment and reappointment to a Commission should be based on such criteria as expertise, ability to work with staff and the public, and commitment to fulfilling official duties. A Commission appointment should not be used as a political " reward."
d) Be respectful of diverse opinions
A primary role of Commissions is to represent many points of view in the community and to provide the Council with advice based on a full spectrum of concerns and perspectives. Councilmembers may have a closer working relationship with some individuals serving on Commissions, but must be fair and respectful of all citizens serving on Commissions.
e) Keep political support away from public forums
Commission members may offer political support to a
Councilmember, but not in a public forum while conducting official duties. Conversely, Councilmembers may support Commission members who are running for office, but not in an official forum in their capacity as a Councilmember.
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6. Conduct with the Media
Commission members are not authorized to represent the City to media outlets ( including broadcast, print, and social media sites) outside of official Commission meetings unless specifically authorized to do so. a) The Mayor is the official spokesperson for the City Council on City positions The Mayor is the designated representative of the City Council to present and speak on the official City position. If an individual Councilmember is contacted by the media ( including broadcast, print, and social media sites), the Councilmember should be clear about whether their comments represent the official City position or a personal viewpoint.
b) Choose words carefully and cautiously
Comments taken out of context can cause problems. Be especially cautious about humor, sardonic asides, sarcasm, or word play. It is never appropriate to use personal slurs or swear words when talking with the media ( including broadcast, print, and social media sites).

COMPLIANCE

1. Acknowledgement of Code of Ethics and Conduct
City Officials should sign an acknowledgement that they have read and understand the guidelines contained in the Code of Ethics and Conduct.

2. Ethics Training for Local Officials
City Officials must comply with State or City mandated requirements for ethics training. Ethics training must be completed prior to representing the City on intergovernmental assignments or Council subcommittees.

3. Behavior and Conduct
The Cupertino Code of Ethics and Conduct sets forth guidelines and standards of ethical conduct desired and expected for members of the Cupertino City Council and Commissions and other City Officials.

Members themselves have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the integrity of city government. The Chairs of Commissions and the Mayor and Council have the additional responsibility to intervene when actions of members that appear to be in violation of the Code of Ethics and Conduct are brought to their attention. 409
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a) City Council:

Individual Councilmembers should point out to the offending Councilmember perceived infractions of the Code of Ethics and Conduct. If the offenses continue, then the matter should be referred to the Mayor in private. If the Mayor is the individual whose actions are being questioned, then the matter should be referred to the Vice Mayor. It is the responsibility of the Mayor ( or Vice Mayor) to initiate action if a Councilmember' s behavior is not in compliance with the Code of Ethics and Conduct. If no action is taken by the Mayor ( or Vice Mayor), then the alleged violation( s) can be brought up with the full Council.
b) Commission Members:

Counseling, verbal reprimands, and written warnings may be administered by the Mayor to Commission members failing to comply with City policy. These lower levels of sanctions should be kept private to the degree allowed by law. Copies of all written reprimands administered by the Mayor should be distributed in memo format to the Chair of the respective Commission, the Commission Staff Liaison, the City Clerk, the City Attorney, the City Manager, and the City Council.

In accordance with law, the City Council may impose sanctions on Commission members whose conduct does not comply with the City's policies, up to and including removal from office. Any form of discipline imposed by Council should be determined by a majority vote of at least a quorum of the Council at a noticed public meeting, and such action should be preceded by a Report to Council with supporting documentation.

When deemed warranted, the Mayor or majority of Council may call for an investigation of Commission member conduct. Also, should the City Manager or City Attorney believe an investigation into a member' s conduct is warranted, they may refer the matter to the Mayor or Council. The Mayor or Council should ask the City Manager or the City Attorney to investigate the allegation and report the findings.

These sanctions are alternatives to any other remedy allowed by law to remedy conduct that violates this code or State or Federal law. In order to protect and preserve good government, all members of the 410
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City organization should be cognizant of their responsibilities and duties to meet the requirements of the law and uphold the guidelines contained in this Code.

IMPLEMENTATION
The Code of Ethics and Conduct is intended to be self-enforcing and is an expression of the standards of conduct for City Officials expected by the City.

It therefore becomes most effective when City Officials are thoroughly familiar with it and embrace its provisions.

For this reason, this document should be included in the regular orientations for candidates for City Council, City Manager, City Attorney, applicants to Commissions, and newly elected and appointed City Officials. Members entering office should sign a statement ( example below) acknowledging they have read and understand the Code of Ethics and Conduct. In addition, the Code of Ethics and Conduct should be periodically reviewed by the City Council and updated it as necessary.

I affirm that I have read and understand the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials.

Signature Date
411
CC 09-19-2023
411 of 673
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A HOUSE DIVIDED:

CUPERTINO CITY COUNCIL AND CITY STAFF
2022 Santa Clara County
Civil Grand Jury
December 19, 2022

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Cupertino City CouncilSeptember 19, 2023

Cupertino City Council
September 19, 2023