CC 11-07-2023 Searchable Packet.pdf — Cupertino City Council, November 7, 2023 (part 2 of 4)

FIRST AMMENDMENT TO EMPLOYMENT AGREEMENT FOR CITY MANAGER This First Amendment to Employment Agreement (the “Agreement”) is by and between the CITY OF CUPERTINO, STATE OF CALIFORNIA, A Municipal Corporation, by and through its City Council (“EMPLOYER”), and Pamela Wu (“EMPLOYEE” and, together with EMPLOYER, the “PARTIES”).

RECITALS
A. The PARTIES entered into the Agreement on August 29, 2022.

B. EMPLOYER is a Municipal Corporation of the State of California.

C. The City Council of the City of Cupertino, in accordance with the provisions of its Municipal Code, desires to continue to employ the services of EMPLOYEE as City Manager.

D. EMPLOYEE desires to continue employment as Cupertino City Manager.

E. It is the desire of both EMPLOYER and EMPLOYEE to set forth the terms and conditions of said employment.

F. The PARTIES now wish to amend the Agreement with this First Amendment to Agreement.

AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein contained, the PARTIES agree as follows:

ARTICLE I: TERM OF EMPLOYMENT

1. Section 5.2 of the Agreement is hereby revised as follows:

5.2 Performance Evaluations. The City Council will
conduct an annual evaluation and performance and salary review of EMPLOYEE in or around August of each year beginning in 2024. The performance review will be conducted in accordance with the purpose noted in Section 5.1 above and will be facilitated by a third party facilitator who is mutually acceptable to the City Council and EMPLOYEE. The performance review will be based on specific criteria developed by the City Council after consultation with EMPLOYEE and the facilitator. Such criteria may be modified as the City Council may from time to time determine, in consultation with 245
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Page 2 ends

the EMPLOYEE and the facilitator.

2. All other terms and conditions of the Agreement shall be unchanged and shall remain in full force and effect.

IN WITNESS WHEREOF, EMPLOYER has caused this Agreement to be signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and EMPLOYEE has signed and executed this Agreement, both in duplicate, the day and year first above written.

ATTEST: CITY OF CUPERTINO
Date: ____________________________ Date: ____________________________ _________________________________ _________________________________ “EMPLOYEE” Mayor
_________________________________
City Clerk
APPROVED AS TO FORM:
_____________________________________
City Attorney
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CITY OF CUPERTINO
Agenda Item
23-12339 Agenda Date: 11/7/2023
Agenda #: 8.

Subject: Law Enforcement Contract Extension with the County of Santa Clara Sheriff's Office Authorize the City Manager to extend the existing law enforcement contract with the County of Santa Clara Sheriff's Office for five years, from July 1, 2024, through July 1, 2029, and amend the terms of the agreement as needed during the extension
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CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Law Enforcement Contract Extension with the County of Santa Clara Sheriff's Office Recommended Action
Authorize the City Manager to extend the existing law enforcement contract with the County of Santa Clara Sheriff's Office for five years, from July 1, 2024, through July 1, 2029, and amend the terms of the agreement as needed during the extension.

Reasons for Recommendation
Cupertino contracts with the County of Santa Clara Sheriff's Office (Sheriff’s Office) for law enforcement services. The current agreement was fully executed on August 5, 2014, and expires on July 1, 2024. The contract allows for an extension of five additional years based on mutual written agreement, and the Sheriff’s Office is amenable to an extension.

As provided for in the contract, the Sheriff's Office and City staff will continue to meet regularly to evaluate service levels and will agree upon an annual service delivery plan that sets forth the level of law enforcement services and the costs of those services. The annual service delivery plan and contract amount allow the City to modify law enforcement services based on changing community needs, including increasing or reducing services if warranted.

Within the costs of the contract are pro-rata lease costs for the West Valley Substation, a lease held by the Sheriff’s Office. The current substation lease agreement expires in December 2024, and the property owner has provided notice that an ongoing lease beyond a five-year extension may not be feasible. In preparation, staff partnered with other contracted cities and the Sheriff’s Office to assess an alternate location or to construct a joint facility. After initial feasibility research, the proposal was determined to be unfeasible and the Sheriff’s Office will extend the lease at their current facility. The renegotiated lease agreement for the West Valley Substation will likely result in a lease agreement at market rate. City staff will continue to identify future potential locations for the West Valley Substation.
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The Saratoga City Council (on November 15) and the Los Altos Hills City Council (Date TBD) will also consider authorizing their City Managers to extend the existing law enforcement contracts with the Santa Clara County Sheriff's Office.

The extension of the current agreement does not authorize a new contract for law enforcement services. Staff will return to City Council to consider new terms for law enforcement services in 2029.

Sustainability Impact
No sustainability impact.

Fiscal Impact
The existing law enforcement contract calls for annual increases based on the percentage increase in total compensation provided to patrol deputies or an average January to December consumer price index for urban wage earners (CPI/W) plus 2%, whichever is less. The increase over the life of the agreement will not exceed the annual cumulative average of CPI/W plus 2%.

The annual projected increase over the next five years uses the CPI/W plus 2% formula.

The figures below do not include any service reductions or modifications to the agreement. Funds that are budgeted and not expended return to the General Fund for future appropriation by the City Council. Funds for the ongoing law enforcement contract are included in the ten-year budget forecast.
2024/2025 2025/2026 2026/2027 2027/2028 2028/2029 Total $18,631,016 $19,543,936 $20,442,957 $21,345,447 $22,302,858 $102,266,214 California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Thomas Chin, Emergency Manager
Reviewed by: Tina Kapoor, Deputy City Manager
Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – 14-127 Law Enforcement Contract with the County of Santa Clara B – Draft Letter to Extend the Law Enforcement Contract 249
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LAW ENFORCEMENT CONTRACT
THIS IS AN AGREEMENT between the County of Santa Clara, State of California, hereinafter referred to as " County," and the City of Cupertino, State of California, hereinafter referred to as " City."
WHEREAS, County has the legal authority to render law enforcement services and criminal justice administrative services to incorporated cities in the County of Santa Clara and is equipped and willing to do so to the extent and in the manner hereinafter provided; and WHEREAS, City is primarily responsible for providing law enforcement services within city limits and is desirous of contracting with the County for the rendition of such services; and WHEREAS, County and City desire to enter into an agreement providing for said services, specifying the nature and extent thereof and establishing compensation to be paid therefore;
NOW, THEREFORE, the parties hereto agree as follow:

I. LAW ENFORCEMENT SERVICES
A. Law Enforcement Services

1. Within the corporate limits of City, County shall provide police protection through its Sheriff' s Office as may be required by City and as within the capability of the Sheriff to provide. Services to be performed under this section ( A)(1) include patrol of established beats, responses to emergency calls, investigative services, and other law enforcement services. The cost of such services shall be set forth in Exhibit A attached.

2. The rendition of such services, the standards of performance, the discipline of officers, and other matters incident to the performance of such services shall remain in the discretion of the Sheriff.

3. In the event of a disagreement as to the performance or amount of the services to be provided pursuant to this section ( A)( 1), the Sheriff or his/her designee shall meet with the representative( s) of City to review the manner of performance of such services.

B. Supplemental Services

1. Within the corporate limits of City, County shall, through its Sheriff' s Office, provide supplem. i, ntal services as requested by the City. The cost of such services shall be at the rate set forth in Exhibit A. Services to be AUG 0 5 2- 1
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S
performed under this section ( B)( 1) shall be provided exclusively within the City limits of City except in an emergency. These services may include, if requested by City, traffic law enforcement beyond the basic services, crime prevention patrols, and other law enforcement services that are acceptable of being scheduled and within the capability of the Sheriff to provide.

2. The plan of patrol, the hours of coverage and other similar details shall be determined, insofar as it is possible to do so, by the mutual consent of the Sheriff and the City Manager of City.

3. The level of requested supplemental services shall be determined by mutual written agreement between the County and the City prior to the beginning of the fiscal year. The agreed upon level of supplemental service shall remain constant in the fiscal year, except upon sixty ( 60) days written notice by either party. City may, at any time during the term of this contract, request supplemental services from the Sheriff for a specific period within any fiscal year. Said Agreement for Supplemental Services shall be an addendum to this agreement and shall provide for the type, cost, level and time of such services.

4. Regional assets shall provide services to City on the same basis as these regional asset services are provided to other law enforcement agencies as provided in mutual aid protocol.

C. Supplemental Reserve Services
These services are provided by reserve sheriff deputies. Their primary responsibility is the transportation of arrestees from the arrest location to the appropriate jail facility, and additional services as requested by City and approved by the Sheriffs Office.

D. Plan for Service

1. Prior to March
1St
of each contract year, City shall provide to the Sheriff a written statement of the level of law enforcement service to be provided during the coming contract year. If City fails to request a specific level of service of the coming fiscal year not less than thirty( 30) days prior to the start of the fiscal year, County may provide the same level of service as was provided during the previous fiscal year, but for a period of time not to exceed thirty( 30) days..

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1 2. Prior to March
15th
of each contract year, City and Sheriff shall develop a plan which specifies the level and amount of services to be provided in the ensuing fiscal year.

E. Assignment and Transfer Policy
Sheriffs deputies assigned to provide Law Enforcement Services and Supplemental Services as herein described shall be assigned to City for a period of not less than three years except when a person is reassigned because of promotion or layoff, because a transfer is requested by the individual, or by the City and concurred with by the Sheriff.

Special Assignment personnel ( e. g. SRO) shall be assigned to City for a period of not less than five years except when a person is reassigned because of promotion or layoff, because a transfer is requested by the individual, or by the City and concurred with by the Sheriff.

F. Designation of Chief of Police
If City shall so desire, and County and the Sheriff shall so agree, nothing in the agreement prevents or limits City from designating the Sheriff or his designee as its Chief of Police in order to satisfy the provisions of Part 1, Division 3, Title 4 of the California Government Code ( sections 36501, et seq.). However, this shall not affect the authority of the Sheriff to control and direct employees of this Office in carrying out duties and obligations pursuant to this contract and shall not increase any liability to the County arising from this agreement.

G. Disaster Contingency Plan

1. In the event of a major disaster that necessitates the activation of an Emergency Operations Center in City, a Sheriffs representative shall immediately be dispatched and report to the Director of Emergency Services ( City Manager).

2. Initial response by a Deputy Sheriff may be the nearest patrol unit or able bodied officer available.

3. A pre- designated Sherifi: s Emergency Operations Center liaison officer shall be notified as soon as possible to respond to the Emergency Operations Center and coordinate law enforcement responsibilities. 252
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4. The pre- designated Emergency Operations Center liaison officers maintained on the active call list shall be available to the Director of Emergency Services.

5. Responsibility for personnel instruction and any specialized training in the Emergency Operations Center shall be provided by City.

6. In the event a major disELster occurs, the Sheriffs Office shall provide support as required to cora.ply with the City' s emergency operations cost recovery efforts.

H. Booking and Processing Services
County shall provide booking and processing services to those arrested persons within the corporate limits of City, and who are brought to the County jail for booking or detention.

I. Communication Services
The County shall, through its Communication Department, provide for emergency communication services in support of the Sheriffs Office and City' s operations. Services will include 24 hour per day 9- 1- 1 telephone answering and radio dispatching of Sheriffs personnel. Services will be provided in accordance with the existing departmental operational procedures.

II. COMPENSATION
A. Compensation for Law enforcement Services Provided by Sheriff

1. The City shall compensate; the County utilizing the Fiscal Year 2014/ 2015 base rate established for general law enforcement and county communications ( hereina' Jrter " law enforcement"). The parties agree that. the annual increase to law enforcement service costs shall be limited to the base rate times the percentage increase in total compensation ( exclusive of PERS) provided to all patrol deputies of the Sheriff s Office, as set forth in a calculation formula agreed and attached hereto as " Exhibit B and incorporated herein by re-Berence, or the annual average for the 12 month period from December to December of the US Department of Labor, Bureau of Labor Statistics, Urban Wage Earners and Clerical Workers Consumer Price Index for the San Francisco- Oakland- San Jose region hereinafter " CPI/W") plus 2%, whichever is less. For years in which compensation is increased in a multi- year contract, the annual increase to law enforcement servicf; costs shall be limited to the average 253
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compensation increase for each year of the contract, not to exceed CPI/ W plus 2% for each individual year. The increase over the life of the agreement will not exceed the actual cumulative average of CPI/ W plus 2% for the life of the; agreement. In addition, the. city agrees to compensate the county : For any
PERS cost increases charged to the
County. These contractual costs may be adjusted only one ( 1) time per year to be effective at the start of each fiscal year on July 1.

2. If, during the course of a fiscal year, it appears that the Sheriff will exceed the planned level of service, City or Sheriff shall as soon as possible notify the other party and propose amendments or modifications to the plan of services for the balance of the fiscal year. City or Sheriff shall review any such proposed modifications but is not obligated to approve them. If City does not approve them, the Sheriff is not obligated to provide such services over and above the level of services provided in the plan. City is not obligated to pay for : services in an amount greater than the total that has been approved in the plan. The County agrees that it will not unilaterally reduce the level of law enforcement services without prior consultation with the City.

3. In those years during which a contract is to be negotiated between the County of Santa Clara and the Deputy Sheriffs Association, and has not been settled for the purpose of computing increases in this agreement, the county shall utilize ' the average CPI/ W plus 2% for computation of said increases plus any additional PERS contribution increases. County will subsequently notify city of any increases in rates resulting from the new contract terms, within thirty ( 30) days of the date of such contract resolution. For years in which compensation is increased in a multi- year contract, the annual increase to law enforcement service costs shall be limited to the average compensation increase for each year of the contract, not to exceed CPI/W plus 2% for each individual year. The increase over the life of the agreement will not exceed the actual cumulative average of CPI/ W plus 2% for the ten year agreement.

4. County shall specify to City, not less than sixty ( 60) days prior to the start of City' s fiscal year the n(-.w projected budget annual contract, amount. a. City shall compensate County at the primary rate, for the Activity" and " Patrol" time expended in the City. Additionally, County shall charge City for meal periods, " beat preparation" time 254
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and " securing frorr.i beat" time at the rate of ten percent ( 10%) of the above referencc; d hours.
b. Activity" and " Petrol" times are identified through the County Patrol Activity Network Analysis ( COPANA) and Patrol Activity Report ( PAR). A listing of items and their designations as Activity" or " Patrol" are to be set forth in the attachment to the yearly plan for service. The COPANA and PAR software
applications may be updated or exchanged for newer software applications during; the life of the agreement.

B. Supplemental/ Reserve Service

1. Compensation for all services within Sections A., B. and C. to be rendered pursuant to this agreement shall be based upon one of the following five 5) rates per hour of service:
a. Primary Rate. This :rate is calculated to reflect the average full cost of a single Deputy with patrol vehicle.
b. Supplemental Day Rate. This rate is calculated according to the cost of a single Deputy with patrol vehicle during periods when the night shift differential salary increment is not payable to the deputy who operates the vehicle.

C. Supplemental Night Rate. This rate is calculated according to the cost of a single Deputy with patrol vehicle during periods when the night shift differential salary increment is payable to the deputy who operates the vehicle.
d. Supplemental Resel- ve Rate. This rate is calculated according to the cost of two Reserve: Deputy Sheriff with patrol vehicle. .

C. Investigative Service Rate. This rate is calculated to reflect the average full cost per hour of an investigator' s time.

2. City shall compensate County monthly for each hour of Supplemental Service at the rates described above and specified in Exhibit A.

C. Base Rent and Operating Costs of Westside Substation

1. City and County shall share the costs of renting and operating the West Valley Division Substation as follows:
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a. The City' s share of the base rent and operating cost will be based upon the lease agreement between the County and Dollinger Properties, LLC dated The monthly base rent will increase 2. 5% each year commencing [ November 8, 2014 and City shall be responsible for its; share of this base rent increase. City shall be responsible for any increase in operating expenses and real estate taxes allocated to the building to the extent that such expenses exceed costs incurred in the FY2014/2015 Base Year. Yearly increases in controllable operating costs ( other than insurance, taxes and utilities) shall be capped at 5%. These operating costs may be adjusted only one ( 1) time per year to be effective at the start of each fiscal year on July 1.

The City' s share of the operating cost and base rent will be a prorated amount based upon the actual billable hours as indicated in the COPANA reports. For budgeting purposes estimates are provided in the plan of execution of law enforcement services contract provided each year.
b. City shall pay to County monthly that portion of the substation operating costs attributable to City. Any change to the location of the substation, or the cost of the facility over and above the contract language as set forth in II.C.I. a., shall be mutually agreed to by the parties to, this agreement.

C. For the purposes of this provision of the Agreement ( 1) " Operating Costs" are defined as the cost of rent, janitorial services, minor repairs, and utilities and all other costs the County is required to pay under the lease agreement for the substation.
d. Pro- rata share to City for substation costs will not be changed during the term of this agreement due to the loss of any contracting city unless mutually agreed to by the remaining parties to the agreement.

D. Compensation for Criminal Justice Administrative Services The criminal justice administrative fee is based upon an approved Ordinance No. NS - 300.470.

E. Method of payment for all Services
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Compensation for all services shall be paid by City to County in the following manner:

1. The City shall pay to County an amount equal to one- twelfth of the annual projected budget amount as calculated in Exhibit B. First payment is due on the tenth day following; the last day of each month of the contract year.

2. Adjustment to the law enforcement annual projected budget- amount shall be performed every year of the contract as follows:
a. The difference between the actual cost of police services for the previous year, as shown by the COPANA report and the amount actually paid by City to County for those services shall be added to, or subtracted from, the amount paid for the prior year. b. Other police servj' ices not included in COPANA Reports shall be reconciled every year for those specific services.

3. Payments, or any portion thereof, not made by City to County within thirty 30) days of the due date shall accrue interest at the rate of ten percent 10%) per annum until paid. Interest so accrued shall be payable to county on the last day of the month in which it accrued.

4. By September 30 following the end of each of the contract reconciliation years, County shall provide to City the COPANA report for the entire contract years. If the amount actually paid by City to County exceeds the cost of law enforcement: services and operating costs of West Valley Station as set forth in the COPANA report, County shall pay to City the amount of such excess by October 1
following the end of the contract
year.

Within twenty- one ( 2 1) days of receipt of such final COPANA report, city shall pay to County the full amount, if any, by which the costs of police services, as set forth in all COPANA reports for the contract year, exceeds the amount actually paid by City for such services. For purposes of calculating the final amount due to County from City, City' s credit for the amount actually paid by City shall not include any interest paid by City due to late monthly payments.

III. REPORTS
A. Monthly Reports County shall provide to City on a monthly basis report( s) on the incidence of crime within City. Said report( s) shall differentiate between " law 3 257
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enforcement services" and " supplemental services," and shall be in a format as agreed upon between County and City.

1. County shall provide such. month end reports to City within' thirty ( 30) days of the last day of that month.

2. By September 30 following the end of the contract year, County shall provide to City the COPANA report for the entire contract year.

3. Special additional reports requested by City may be provided at cost.

IV. HOLD HARMLESS CLAUSE
A. The County shall indemnify, defend, and hold harmless the City, its officers, agents and employees from any less, liability, claim, injury or damage arising out of, or in connection with, perfomiance of the duties and obligations of the County and its employees set forth in this agreement.

B. The City shall indemnify, defend, and hold harmless the County, its officers, agents and employees from any less, liability, claim, injury or damage arising out of, or in connection with, perfonmance of the duties and obligations of the City and its employees set forth in this agreement.

C. This mutual indemnification agreement is adopted pursuant to Government code section 895. 4 and in lieu of and notwithstanding the pro rata risk allocation which might otherwise be imposed between the parties pursuant to Government code section 895. 6.

V. INSURANCE AND LIABILITY
County and City shall each maintain its own liability insurance coverage, through self-insurance or otherwise, against any claim of civil liability arising out of the performance of this agreement.

VI. TERM OF AGREEMENT
This agreement shall become effective on 7/ 1/ 14, and may be terminated without cause by County or City upon the giving of one- hundred and eighty ( 180) days written notice of such termination to the other party. In the absence of such notice of termination, this agreement shall be effective for a term of one hundred and twenty ( 120) months until 7/ 1/ 24, subject to any modifications which are made in accordance with the terms and conditions of this agreement. If City elects to terminate this Agreement prior to the expiration of the ten- year term, the City shall nonetheless pay the full amount of its pro9 258
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rata share remaining on County tenant improvements, moving costs and remaining lease commitments for the West Valley Division substation.

At the expiration of this ten ( 10) year contract, this contract can be renewed for an additional five ( 5) year period upon written notice of renewal by City and the County to the other parties at least one hundred eighty ( 180) days prior to the expiration of this contract.

COUNTY OF SANTA CLARA CITY OF CUPERTINO
Bay: B y:

Mike Wasserman, President Board of Supervisors David Brandt, City Manager Date: AUG 0 5 2014 Date: 7' 2- / l q
Signed and certified that a
copy of this Attest: 6 w
Document has been delivered by electronic
Or other means to the President, Board of Grace Schmidt, City Clerk Supervisors. Date: y'--( '/
Attest:. APPROV -- AS TO FORM AND LEGALITY:
ynnVadanz,
Clerk of the Board of S ervisors
ro orade, City A orney
Date: J i ( Lq

BOARD OF SUPERVISORS
APPR ED AS TO FO AND LEGALITY:

Cher) tevens, Deputy County Counsel
Date: Z
194
07,
0OSS( o 3,

EXPENDITURE DISTRIBUTION
Account: 110- 2100- 7052 Amount: $ 9,498,819
lei
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EXHIBIT A

PROPOSED COSTS
FISCAL YEAR 2014- 2015
LOS ALTOS UNINCORP.

RATES CUPERTINO HILLS SARATOGA CITIES

GENERAL LAW ENFORCEMENT
Proposed Hours- Activity
Proposed Hours- Patrol
Total Hours 33, 248. 0 5, 421. 0 20, 060. 0 14, 696. 0
Proj Costs FY 2014- 2015 @ $ 164. 90 6, 307, 095 893, 923 3, 307, 894 2, 423, 370 TRAFFIC ENFORCEMENT- DAYS:

Proposed Hours 47, 200. 0 43. 0 4, 195. 4 0. 0
Proj Costs FY 2014- 2015 @ $ 162. 43 6, 984 681, 451 0
Cupertino @ $ 162. 45 1, 169, 640
TRAFFIC ENFORCEMENT- NIGHTS:

Proposed Hours 0. 0 0. 0 0. 0 0. 0
Proj Costs FY 2014- 2015 @ $ 166. 04 0 0 0.

Cupertino @ $ 166. 06 0
INVESTIGATIVE HOURS:

Proposed Hours 7, 200. 0 600. 0 2, 400. 0 0. 0
Proj Costs FY 2014- 2015 @ $ 159. 02 1, 144, 944 95, 412 381, 648 0 FY15 Contract Cities_ Proposed Costs 05- 15- 2014 DSA= O% 260
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EXHIBIT A

PROPOSED COSTS
FISCAL YEAR 2014- 2015
LOS ALTOS UNINCORP.

RATES CUPERTINO HILLS SARATOGA CITIES
RESERVES ACTIVITY HOURS:

Proposed Hours 1,,650. 0 22. 0 340. 0 0. 0
Proj Costs FY 2014- 2015 @ $ 48. 70 80, 355 1, 071 16, 558 0 OPERATING COSTS OF WEST VALLEY SUBSTATION:

Proj Hours FY 2014- 2015 45, 448 5, 464 24, 255 141696
89, 863.

Percentage 50. 5748% 6. 0804% 26. 9911% 16. 3538%
Proj Costs July 2014- Oct 2014 @ $ 418, 614 yr 70, 571 8, 484 37, 663 22, 820 Proj Costs Nov 2014- Jun 2015 @ $ 418, 614 yr 141, 142 16, 969 75, 326 45, 639 Total Proj Costs of Substation = $ 418, 614 2111, 713 25, 453 112, 989 68, 459 SUBTOTAL COSTS:

Proj Costs FY 2014- 2015 8, 9113, 747 1, 022, 843 4, 500, 540 2, 491, 829

PROJECTED SPECIAL SERVICES
Projected Hours FY 2014- 2015 1, 815. 5 0 0 0
Cupertino Traffic Sergeant 189, 351 0 0 0
Saratoga School Resource Officer 0, 0 100, 000 0

SCHOOLS RESOURCE OFFICER
Proj Costs FY 2014- 2015 @ $ 136. 23 395, 721 0 0 0
1 SRO @ 85% and 1 SRO @ 75%)

TOTAL SHERIFF LAW ENFORCEMENT COSTS
Projected Costs FY 2014- 2015 9, 498, 819 1, 022, 843 4, 600, 540 2, 491, 829 CAPPED COSTS 2014- 2015
Proj Costs Capped @ 4. 6%( CPI+ 2%) Increase 9; 840, 602 1, 060, 170 4, 753, 605 0 AMOUNTS BELOW CAP OF 4. 6% 341, 783) 37, 327) 153, 065) 0 FY15 Contract Cities_ Proposed Costs 05- 15- 2014 DSA= O% 261
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Q
v
Law Enforcement Contract
Exhibit B
Compensation for Services
To calculate the annual projected budget increase to this contract, the following shall apply:

ANNUAL COST OF LIVING INCREASE IN TOTAL COMPENSATION:

1. Total compensation refers to the amount Santa Clara County Sheriff Department provides for total compensation( salar:
y
and benefits) at top step for a 40- hour patrol
deputy.

2. At the subsequent July 1, the new total compensation amount ( exclusive of PERS) will be divided by the total compensation effective on the prior July 1 ( exclusive of PERS), to derive a percentage change: in total compensation.

The annual projected budget increase in contract costs shall be computed as follows:

Fiscal Year 2014/2015:

Base Year 2014/ 2015' costs = costs as shown in Exhibit A to this Agreement.

Fiscal Years 2015/ 2016 through 2024/ 2025:

Preceding Base Year Cost;
X
Lesser of Percentage change in total compensation or Consumer Price Index- Urban Wage Earners and Clerical Workers (CPUW) plus 2% ( For years in which compensa- 1 ion is increased in a multi- year contract, the annual increase to law en-forcement service costs shall be limited to the average compensation increase for each year of the contract, not to exceed CPUW plus 2% for each individual year.)
Plus
Percentage Change( Increase/ Decrease) in Actual County PERS Costs 262
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November 8, 2023
Robert Jonsen
Sheriff
55 West Younger Avenue
San Jose, CA 95110
Re: Extension of the Law Enforcement Agreement
Dear Sheriff Jonsen,
Pursuant to Section VI of the current law enforcement agreement between the City of Cupertino (City) and the County of Santa Clara Sheriff's Office (Sheriff’s Office), please accept this letter as written notice of the City's intention to extend the agreement.

The Sheriff's Office and, in particular, your deputies have proven effective in providing law enforcement services to Cupertino. The City believes that extending this partnership for another five years, commencing on July 1, 2024, and concluding on July 1, 2029, would be in the best interest of our community.

With your agreement, the City's Emergency Manager, Tom Chin, will work with Captain Valenzuela, West Valley Station, to extend the current agreement. Please contact Tom at [email protected] to schedule a meeting or discuss further details.

Thank you for your service to Cupertino.

Sincerely,
Pamela Wu
City Manager
Enclosure
cc: Captain Neil Valenzuela
Thomas Chin
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CITY OF CUPERTINO
Agenda Item
23-12430 Agenda Date: 11/7/2023
Agenda #: 9.

Subject: Approve a Fourth Amendment to the recreation agreement with Snapology of Los Gatos dba SV Kids Corp for Enrichment STEAM Programs.

Authorize the City Manager to execute a Fourth Amendment to the recreation agreement with Snapology of Los Gatos dba SV Kids Corp (Snapology), increasing the amount by $190,105 for a total contract amount not to exceed $341,105 and extending the term of the agreement to August 31, 2026.

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CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Approve a Fourth Amendment to the recreation agreement with Snapology of Los Gatos dba SV Kids Corp for Enrichment STEAM Programs.

Recommended Action
Authorize the City Manager to execute a Fourth Amendment to the recreation agreement with Snapology of Los Gatos dba SV Kids Corp (Snapology), increasing the amount by $190,105 for a total contract amount not to exceed $341,105 and extending the term of the agreement to August 31, 2026.

Reasons for Recommendation
Background
The City began offering enrichment science, technology, engineering, arts and mathematics (STEAM) programs through Snapology at the Portal Park Building in Fall 2020 through an agreement executed under the City Manager’s award authority.

The contract terms include a 60/40 split on revenue collected for in-person classes and camps with the contractor receiving 60% of the revenue and the City receiving 40% of the revenue. For online classes, which are only a very small portion of the overall program during the term of the contract, the compensation is a 70/30 revenue split.

Snapology administers the program including hiring and training instructors and providing all class and camp materials. The City provides the facility, registration, and a listing in the recreation class schedule. Offering specialty recreation classes and programs through negotiated contracts such as these are an industry standard and occur commonly in surrounding cities such as Campbell, Sunnyvale, Santa Clara, and Mountain View.

Snapology began building and establishing a reputation for this youth age program and participation has steadily and consistently increased. With the success and growth of the program three amendments have been executed under the City Manager’s award authority to increase the total contract amount and extend the term of the agreement. As with all classes and programs offered through the Parks and Recreation Department, an increase in registration reflects greater community interest in the offerings and results in 265 CC 11-07-2023
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increased revenue for the City. The contract amendment requested will exceed the City Manager’s purchasing authority under Cupertino Municipal Code section 3.22.060(A) and the City’s Purchasing Policy. Increasing this contract will allow the Snapology classes and programs to continue to be offered through August 2026 and continue to produce revenue for the City.

Sustainability Impact
No sustainability impacts.

Fiscal Impact
The City currently has an agreement with Snapology to provide youth STEAM programs and the classes and camps at Portal Park. The programs are run through G/L account 580-62-613 Youth and Teen Recreation.

The extended term of the contract will cover programmatic costs and estimates through August 31, 2026
Fiscal Year Total Revenue Total Contractor
Payments City Net Revenue
2021 Actuals $7,940 $4,764 $3,176
2022 Actuals $89,745 $53,847 $35,898
2023 Actuals $76,772 $46,063 $30,709
2024 Projected $88,287 $52,972 $35,315
2025 Projected $101,531 $60,918 $40,613
2026 Projected $116,760 $70,056 $46,704
2027 Projected (July/Aug) $87,475 $52,485 $34,990
Totals $568,510 $341,105 $227,405
California Environmental Quality Act
The proposed contract amendment is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15301 (operation of an existing facility).

Prepared by: Sonya Lee, Recreation Manager
Reviewed by: Rachelle Sander, Director of Parks and Recreation Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Snapology Agreement, First, Second, and Third Amendments B – Draft Fourth Amendment
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No. ___________
FY2020 - 2023

RECREATION SERVICES AGREEMENT

1. Parties. This contract is made by and between the City of Cupertino, a municipal corporation (“ City”), and Snapology of Los Gatos DBA SV Kids Corp. (“ Contractor”), a Corporation for Enrichment Steam Programs and is effective on the last date signed below (Effective Date”).

2. Services. Contractor agrees to provide the Services included in the Scope of Work and in accordance with the Schedule of Performance attached in Exhibit A.

3. Term. This contract begins on the Effective Date and ends on 06/30/2023 (“ Contract Time”), unless extended or terminated as provided herein. Time is of the essence and Contractor must have sufficient time, resources, and qualified staff to deliver the Services as required. Contractor must promptly notify City of any actual or potential delays to afford the Parties adequate opportunity to address or mitigate such delays. The City’ s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy.

4. Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $ 21,000.00 Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A. The maximum compensation includes all costs, expenses, and reimbursements and will remain in place even if Contractor’ s actual costs exceed the capped amount. Contractor must submit invoices and the information required in Exhibit A in order to receive payment. City will compensate Contractor within thirty (30) days after approval of written invoices.

Invoices are subject to review and audit by City during regular business hours upon 24 hours’ notice. Contractor must maintain complete and accurate records of payrolls, expenditures, disbursements and other cost items charged to City or establishing the basis for an invoice, for a minimum of four (4) years from the date of the final payment.

5. Independent Contractor.

5.1 Contractor is an independent Contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. No civil service status or other right of employment will be acquired by virtue of Contractor’ s performance of the Services. Contractor is not entitled to City’s health benefits, worker’s compensation or any other benefit. Contractor must have the skills and qualifications to perform the Services in a competent and professional manner. 267
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Contractor will supply all tools, materials, and equipment required to perform the Services under this Contract. Contractor is responsible for obtaining permits and licenses required by law and must obtain a City business license, if required by the Cupertino Municipal Code.

5.2 Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’ s business including, but not limited to, federal and state income taxes.

City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remit to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made.

6. Proprietary/Confidential Information. To the extent Contractor may have access to private or confidential information owned or controlled by the City, Contractor agrees to treat it as confidential and use it solely to perform this Agreement. Contractor must exercise the same standard of care to protect City information as a reasonably prudent Contractor would use to protect its own proprietary data.

7. Ownership of Materials. To the extent Contractor prepares written material, drawings, or data in connection with this contract, City will have the property rights to those materials and all copyrights, if any, to such work product will, to the extent requested by City, constitute City property upon completion of the work to be performed hereunder or upon termination of this Agreement.

8. Records. Contractor must maintain complete, accurate, and detailed accounting records relating to its performance in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Contractor’ s services, benchmarks, deliverables, and costs/fees, and must be made reasonably available to City. The records and supporting documents must be kept separate from other files and maintained for four (4) years from the date of City’s final payment.
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9. Assignment. This Contract is not assignable. Contractor may not substitute another or transfer any rights or obligations under this Contract without prior written approval of City. Only those persons whose names are included in Exhibit A may perform the Services.

10. Publicity and Signs. Any publicity generated by Contractor related to this contract or the Services during the Contract Time and for one (1) year thereafter must reference City contributions.

The words “ City of Cupertino” shall be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews, and newspaper articles. No signs may be posted, exhibited, or displayed on or about City property, except signage required by law or under this Agreement, without prior written approval from City.

11. Indemnification. To the fullest extent allowed by law and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor agrees to indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and contractors ( collectively, “ Indemnitees”), through legal counsel acceptable to City, from and against any liability for damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation, arbitrations, administrative, and regulatory proceedings), of every nature, arising out of or in any way related to Contractor’ s or Contractor’ s agents performance of this contract or the Services.

This includes but is not limited to Liability resulting in personal injury, death, property damage, or economic losses. Contractor must pay any costs City may incur in enforcing this provision and must accept a tender of defense upon receiving notice from City. Contractor’ s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Contract. This Section 11 shall survive termination of the Agreement.

12. Insurance. Contractor shall comply with the insurance requirements in Exhibit B. City will not execute the Agreement until it has received and approved satisfactory certificates of insurance and endorsements evidencing the type, amount, and dates of coverage. Alternatively, City in its sole discretion, may purchase insurance and deduct the costs from payments to Contractor, or terminate the Agreement.

13. Compliance with Laws and Other City Requirements.

Requirements for all Contracts. This contract is subject to local, state and federal laws and regulations prohibiting discrimination, including Title VII of the Civil Rights Act of 1964, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, and other laws that pertain to fair employment and anti-discrimination practices. Contractor must comply with labor laws pertaining to prevailing wages, working hours, overtime, payroll records, and other requirements imposed by the Department of Industrial Relations. If Contractor does not have employees, it must sign the Affidavit of No Employees, attached as Exhibit C. Consultant is responsible for verifying employment eligibility of employees pursuant to the Immigration Reform and Control Act of 1986.

Contractor must comply with conflict of interest laws and regulations applicable to this Agreement and avoid conflicts of interest. Contractor may be required to file a conflict of interest form for engaging in governmental decisions or serving in a staff capacity, and is hereby advised to review the requirements of California Political Reform Act and the California Code of Regulations. Services may only be 269
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performed by persons who are not employed by City and who do not have a contractual relationship with City other than this contract. Contractor agrees to abide by City policies and administrative rules prohibiting gifts to City officials and employees.

Additional Requirements for Services Provided to Minors. Contractor and its employees who provide services under this Agreement must comply with these additional requirements:

A. Undergo fingerprints and a criminal background and verify all employees providing services under this contract have met this requirement.

B. Complete a Tuberculosis screening test as required by law and as set forth in Exhibit D.

C. Comply with the Mandatory Reporting under California Penal Code 11164- 11174.3 and with the protocols, reporting, and training required under California Health and Safety Code Section 124235, AB 2007, and other laws pertaining to concussion evaluation, removal from play, and return to play protocols. (Refer to Center for Disease Control & Prevention, https://www.cdc.gov/headsup/ index.html).

D. Submit required forms and acknowledgments included in Exhibit D, and ensure its each participant is provided with a concussion information sheet, signs and returns the forms to the City as required by Health and Safety Code Section 124235.

Require coaches and administrators to successfully complete the concussion and head injury education at least once either online or in person, before supervising a participant.

Contractor shall offer training, educational materials, or both to each Contractor administrator on a yearly basis. (Training resources are available at the Center for Disease Control & Prevention ( link cited above).

E. If providing instruction, Contractor must acknowledge and comply with all requirements set forth in the Parks & Recreation Services Instructor Manual.

This contract requires services for children.

14. Coordination of Services. The Parties designate the following persons as Services Coordinators with the responsibility to oversee the delivery of Services in accor dance with the terms of this Agreement. Contractor’ s designation and any substitution are subject to City approval.

For City:

Name: Marilu Mejia
Position: Recreation Coordinator
Contact: marilum@cupertino. org
For Contractor:

Name: Vaishali Dubal
Position: CEO
Contact:

15. Abandonment. City may abandon or postpone the Activity or Program and will notify Contractor as soon as possible. Contractor will be paid for satisfactory Services rendered through the date of abandonment upon submission of final invoices approved by City.

16. Termination. City may terminate this contract for cause or without cause at any time and will notify Contractor as soon as possible. Contractor will be paid for satisfactory services rendered through the date of termination upon submission of final invoices approved by City. 270
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17. Governing Law, Venue, and Dispute Resolution. This contract is governed by the laws of the State of California. Any legal actions or proceedings filed against City in connection with this contract must comply with the government claims filing requirements and must be filed with the Superior Court for the County of Santa Clara, State of California. At City’s request, Contractor is required to continue to provide Services pending resolution of any dispute. If the Parties elect arbitration, the arbitrator’ s award must be supported by law and substantial evidence and include detailed written findings of law and fact.

18. Attorney Fees. If City is required to pursue litigation, arbitration or other administrative or regulatory proceeding to enforce its rights or the terms of this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. This Section 18 survives this Agreement.

19. Third Party Beneficiaries. There are no third party beneficiaries under this Contract.

20. Waiver. Neither acceptance of Services nor payment thereof constitutes a waiver of any contract provision. City waiver of a breach shall not constitute waiver of another term, provision, covenant, or condition, or a subsequent breach, whether the same or a different character.

21. Entire Agreement. This Agreement and all referenced Exhibits are hereby attached and incorporated into the Agreement by this reference and represent the full and complete understanding as to those matters contained herein, and supersede any other contract or understanding, either oral or written, between the Parties. This Agreement may not be modified or amended except in writing signed by both Parties. If there is any inconsistency between any term, clause, or provision of the main contract and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main contract shall prevail and be controlling.

22. Inserted Provisions. Each provision or clause required by law or this contract is deemed to be included and will be inferred herein. Either party may request an amendment to cure any mistaken insertion or omission of a required provision.

23. Headings. The headings are for convenience only and are not a part of the contract or intended to affect, limit, or amplify the terms or provisions of this Agreement.

24. Severability/ Partial Invalidity. If any contract term or provision, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other contract terms and provisions and their application to specific situations will remain in full force and effect.

25. Survival. All provisions which by their nature must continue after the Agreement ends, including without limitation Indemnification, Insurance, Ownership of Materials, Records, Governing Law, and Attorney Fees, will survive the expiration or termination of this Agreement.

26. Notices. All notices and instruments pertaining to material provisions of this contract or significant disputes which are required by law or under this contract to be in writing must be sent to the persons listed below. The notices will be deemed effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit 271
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in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission.

To City of Cupertino:

Office of the City Manager
10300 Torre Ave., Cupertino, CA 95014
Cc: Representative/ Coordinator: Marilu Mejia
Email: marilum@cupertino. org
To Contractor: Snapology of Los Gatos DBA SV
Kids Corp.

Cc: Representative/ Coordinator: Vaishali Dubal
Email:

27. Validity of Contract. This contract is valid and enforceable only if it complies with the provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, is signed by the City Manager or authorized designee, and is approved for form by the City Attorney’ s Office.

28. Execution. The person executing this contract on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to execute this contract and to carry out all actions and services required. This contract constitutes a legally binding obligation of Contractor, and may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument.

SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties have caused this contract to be executed.

CONTRACTOR
By ________________________
Name______________________
Title ______________________
Date_______________________
Tax I.D. No.: 844462248

CITY OF CUPERTINO
A Municipal Corporation
By ________________________
Name______________________
Title ______________________
Date_______________________
APPROVED AS TO FORM:

HEATHER M. MINNER
Cupertino City Attorney
ATTEST:

KIRSTEN SQUARCIA
City Clerk
Date_______________________
Vaishali Dubal
Sep 4, 2020
CEO
Heather M. Minner
Rachelle Sander
Sep 4, 2020
Rec Supervisor
Sep 4, 2020
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Updated 04/15/20

EXHIBIT A

SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES
The CONTRACTOR will provide Enrichment Steam Programs in, but not limited to, the following:

Escape Snapology, KinderBots, Junior Creator' s Club, Animal Explorers/ Discovering Dinosaurs, Adaptive Play, Building Commitment to End Bullying
Location and Time of CONTRACTOR Services:

Refer to the City’ s Publications for agreed upon dates, times, and locations of a class, camp, activity, program, or service (“ class”). The City, at its sole discretion, may change the agreed dates, times and locations of a class, or may cancel a class.

Compensation for CONTRACTOR Services:

Contractor shall be compensated for services performed pursuant to this Agreement.

For a class taught in person, 60% of resident fee per participant, based on final roster, for in -person programs. 70% of resident fee per participant, based on final roster, for online programs..

City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class.

Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins.

The total compensation to the Contractor shall not exceed $21,000.00.

Eligible Participant Minimum and Maximums for CONTRACTOR Services:

Minimum: 4 (In Person), 6 (Online)
Maximum: 10-15 (In Person), 20 (Online)
If less than the required minimum number of participants enroll in and pay for a particular class as identified in the schedule before the class is scheduled to start, the City may cancel the particular class and/or terminate this Agreement without additional notice or payment to Contractor.

List of all Contractor Employees working for the City of Cupertino (if no Employees, identify self”):

See attached list of employees.

Performance of CONTRACTOR Services:
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Class Cancellation
Contractor will only receive compensation for a class that is performed. If performance of a class is cancelled by the City or Contractor before instruction begins, Contactor will not receive compensation for the class. If the City or Contractor cancels performance of certain meetings of a class, Contractor will only receive compensation for those meetings of the class that are performed.

In the case Contractor unilaterally cancels performance of a class without City approval, City reserves the right to immediately and without notice cancel the remainder of classes offered and or performed by Contractor.

COVID- 19 Health Order Compliance
Contractor acknowledges that its duty to comply with Laws, as stated in Section 13 of the Agreement, includes compliance by Contractor with the restrictions on travel and the Social Distancing Requirements set forth in Section 13.k of the health order issued by the County of Santa Clara Public Health Department on March 31, 2020, in response to the COVID-19 pandemic, and any subsequent amendments or superseding orders thereto (the “Health Order”), and any other local, state, or federal laws or policies that have been or may be enacted in response to the COVID- 19 pandemic collectively, “ Health Laws”). Contractor shall comply with these restrictions on travel and Social Distancing Requirements when preforming work under this Agreement. If this Agreement specifies work that cannot be performed in compliance with the Health Order or Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. Contractor shall likewise comply with any City protocols designed to help prevent the spread of COVID-19. Contractor acknowledges that the need to comply with the Health Order and Health Laws may result in the City canceling performance of any class or meetings of a class referenced in this Agreement.

Registration, Enrollment, and Supervision
The Contractor shall follow all guidelines pertaining to registration procedures as listed in the quarterly recreation schedule. Participants may not take part in the program unless they are listed on the class roster or can show proof of enrollment. All participants and volunteers need to complete the City’s Waiver of Liability form prior to taking part in the program. If applicable, contractors who are responsible for supervising minors must remain with the class until a parent of legal guardian has arrived and all minors are released to them.

Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an occurrence” basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this project/location (CG 25 03 or 25 04) or 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 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 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 0001 covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non-owned), 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 and Employer’ s Liability Insurance limits of no less than $1,000,000 per accident for bodily injury or disease.

4. Sexual Abuse/Molestation: Insurance or the equivalent as required for activities/ services involving minors, ( i.e., after school activities, recreational programs, athletics, study/training events and transportation of minors). Coverage may be included under General Liability or be obtained in a separate policy, such as Educators Legal Liability (ELL) policy, with a limit of no less than $1,000,000 per occurrence. If a general aggregate limit applies, it must apply separately to this contract or be twice the required occurrence limit.

Insurance coverage required may be satisfied by a combination of Primary and Excess/Umbrella insurance.

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 276
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Exh. B Insurance for Recreation Contracts Updated May 2020 2 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.
1223215. 2
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The ACORD name and logo are registered marks of ACORD

CERTIFICATE HOLDER
1988- 2014 ACORD CORPORATION. All rights reserved.

ACORD 25 ( 2014/ 01)

AUTHORIZED REPRESENTATIVE

CANCELLATION

DATE (MM/DD/YYYY)

CERTIFICATE OF LIABILITY INSURANCE

LOCJECT
PROPOLICY
GEN'L AGGREGATE LIMIT APPLIES PER:

OCCURCLAIMS- MADE

COMMERCIAL GENERAL LIABILITY
PREMISES ( Ea occurrence)$

DAMAGE TO RENTED
EACH OCCURRENCE $
MED EXP (Any one person)$
PERSONAL & ADV INJURY $
GENERAL AGGREGATE $
PRODUCTS - COMP/OP AGG $

RETENTIONDED

CLAIMS-MADE
OCCUR
AGGREGATE $
UMBRELLA EACH OCCURRENCE $ LIAB

EXCESS LIAB
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSR

LTR TYPE OF INSURANCE POLICY NUMBER

POLICY EFF

MM/DD/YYYY)

POLICY EXP

MM/DD/YYYY) LIMITS
PER

STATUTE
OTHER
E.L. EACH ACCIDENT
E.L. DISEASE - EA EMPLOYEE
E.L. DISEASE - POLICY LIMIT

ANY PROPRIETOR/ PARTNER/ EXECUTIVE
If yes, describe under
DESCRIPTION OF OPERATIONS below
Mandatory in NH)
OFFICER/ MEMBER EXCLUDED?

WORKERS COMPENSATION

AND EMPLOYERS' LIABILITY Y / N

AUTOMOBILE LIABILITY

ANY AUTO

ALL OWNED SCHEDULED

HIRED AUTOS

NON-OWNED

AUTOS AUTOS
AUTOS

COMBINED SINGLE LIMIT
BODILY INJURY (Per person)
BODILY INJURY (Per accident)
PROPERTY DAMAGE $

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.

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

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.

IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy( ies) must 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).

COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:

INSURED
PHONE
A/C, No, Ext):

PRODUCER
ADDRESS:

E-MAIL
FAX
A/C, No):

CONTACT
NAME:

NAIC #
INSURER A :

INSURER B :

INSURER C :

INSURER D :

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INSURER F :

INSURER(S) AFFORDING COVERAGE

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

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

INS025 ( 201401)
8/ 17/ 2020
Rodgers Insurance Group, Inc.

Suite 505, Foster Plaza V
651 Holiday Drive
Pittsburgh PA 15220
Deborah Dolence
412) 922- 1651 ( 412) 922- 5117
SV Kids Corp, DBA: Snapology of Los Gatos
CA
Markel Insurance Company 38970
The Travelers Indemnity Co 25658
CL203435690
A
X
X
X
X Y 2/ 25/ 2020 2/ 25/ 2021
1, 000, 000
100, 000
10, 000
1, 000, 000
2, 000, 000
2, 000, 000
Abuse and Molestation 1, 000, 000
A
X X
2/ 25/ 2020 2/ 25/ 2021
1, 000, 000
B 5/ 07/ 2020 5/ 07/ 2021
1, 000, 000
1, 000, 000
1, 000, 000
The City of Cupertino is listed as additional insured. General liability is on a primary and non contrributory basis. Cancellation notice applies. Waiver of subrogation is included.

James Wehar/ TMA
Y
The City of Cupertino
Parks and Recreation Department
10300 Torre Ave
Cupertino, CA 95014
Y
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EXHIBIT D
Contractor’ s Mandated Reporter Declaration
The undersigned does hereby certify that:

1. I am a representative of Snapology of Los Gatos DBA SV Kids Corp.; that I am familiar with the facts herein and am authorized and qualified to execute this declaration.

2. I declare that Snapology of Los Gatos DBA SV Kids Corp. has complied with fingerprinting and criminal background investigation requirements with respect to all Contractor’ s employees who may have contact with minors in the course of providing services pursuant to the Agreement, and the California Department of Justice has determined that none of those employees has been convicted of a felony, as that term is defined in California Penal Code Section 11105.3.

3. I declare that each coach and administrator shall be required to successfully complete concussion and head injury education at least once, either online or in person, before supervising a participant, as required by California Health and Safety Code Section 124235, et seq.

4. On a yearly basis, all participants shall be required to sign and return a concussion and head injury information sheet in compliance with California Health and Safety Code Section 124235, which may be in the form attached as D-1.

5. That a complete and accurate list of Contractor’ s employees, who may come in contact with minors during the course and scope of the Agreement, are included below.

6. All of the below mentioned employees have tested negative for TB, or X-ray results for TB, and have current documentation on file with Contractor.

7. All of the below mentioned employees have received training and understand their responsibilities under the Mandated Reporter laws of this state and are willing and able to comply.

List of all Contractor Employees working for the City (if no Employees, identify “ self”):

See attached list of employees.

8. The Contractor will notify the City of Cupertino in writing of any new employees and will be added to the above list prior to beginning work at the City of Cupertino.

I declare under penalty of perjury that the foregoing is true and correct.

CONTRACTOR
By ________________________
Name ______________________
Title ______________________
Date _______________________ Sep 4, 2020
CEO
Vaishali Dubal
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List of all Contractor Employees working for the City of Cupertino (if no Employees, identify self”):

Amita Dhingra Vaishali Dubal Neila Mansubi
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1 FIRST AMENDMENT TO AGREEMENT 20-001 BETWEEN THE CITY

OF CUPERTINO AND SNAPOLOGY OF LOS GATOS DBA SV KIDS
CORP. FOR ENRICHMENT STEAM PROGRAMS
This First Amendment to Agreement 20-001 between the City of Cupertino and Snapology of Los Gatos DBA SV Kids Corp., for reference dated September 04, 2020, is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Snapology of Los Gatos DBA SV Kids Corp., a Corporation (“ Contractor”) whose address is 1147 Holly Ann Place, San Jose, CA 95120, and is made with reference to the following:

RECITALS:

A. On September 04, 2020, Agreement 20-001 (“ Agreement”) was entered into by and between City and Contractor for Enrichment Steam Programs.

B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows:

1. Compensation
Paragraph 4 of the Agreement is modified to read as follows:

City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $ 57,000. 00 Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A. The maximum compensation includes all costs, expense, and reimbursements and will remain in place even if the Contractor’ s actual costs exceed the capped amount. City will compensate Contractor within thirty (30) days after approval of written invoices.

2. Exhibit A of the Agreement is replaced with new Exhibit A-1 attached hereto.

3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. 284
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2 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date

SNAPOLOGY OF LOS GATOS DBA SV
KIDS CORP.

By
Title
Date

EXPENDITURE DISTRIBUTION
PO #2021- 59,
2022-112
580- 62- 613 700- 702
Original $ 21,000
Amendment #1: $ 36,000
Amendment #2:

Total: $ 57,000
Amita Dhingra
CFO
Aug 25, 2021
Christopher D. Jensen
Assistant Director of Parks and Recreation
Aug 26, 2021
Aug 26, 2021
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EXHIBIT A

SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES
The CONTRACTOR will provide Enrichment Steam Programs in, but not limited to, the following:

Escape Snapology, KinderBots, Junior Creator' s Club, Animal Explorers/ Discovering Dinosaurs, Adaptive Play, Building Commitment to End Bullying
Location and Time of CONTRACTOR Services:

Compensation for CONTRACTOR Services:

Contractor shall be compensated for services performed pursuant to this Agreement.

For a class taught in person, 60% of resident fee per participant, based on final roster, for in-person programs. 70% of resident fee per participant, based on final roster, for online programs..

City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class.

Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins.

The total compensation to the Contractor shall not exceed $57,000.00.

Eligible Participant Minimum and Maximums for CONTRACTOR Services:

List of all Contractor Employees working for the City of Cupertino (if no Employees, identify self”):

See attached list of employees.

Performance of CONTRACTOR Services:
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Class Cancellation
Contractor will only receive compensation for a class that is performed. If performan ce of a class is cancelled by the City or Contractor before instruction begins, Contactor will not receive compensation for the class. If the City or Contractor cancels performance of certain meetings of a class, Contractor will only receive compensation for those meetings of the class that are performed.

Suite 505, Foster Plaza V
651 Holiday Drive
Pittsburgh PA 15220
Michelle LoFaso
412) 922- 1651 ( 412) 922- 5117
SV Kids Corp.

DBA: Snapology of Los Gatos
1147 Holly Ann Place
San Jose CA 95120
Markel Insurance Company 38970
Travelers Property Casualty Co
CL212539170
A Y CCP7499- 02 02/ 25/ 2021 02/ 25/ 2022
1,000, 000
100, 000
10, 000
1,000, 000
2,000, 000
2,000, 000
Abuse and Molestation 1,000, 000
A CCP7499- 02 02/ 25/ 2021 02/ 25/ 2022
B UB- 0R242079- 21 05/ 07/ 2021 05/ 07/ 2022
1,000, 000
1,000, 000
1,000, 000
The City of Cupertino, its City Council, Boards and Commissions, Officers, Officials, Employees, Agents, Servants, Volunteers and Consultants are listed as additional insured with respect to General Liability coverage. General liability is on a primary and non contrributory basis. Cancellation notice applies. Waiver of subrogation is included.

The City of Cupertino Parks and Recreation Department
10300 Torre Ave
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- MAILADDRESS:

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
WVD
ADDL
INSD

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

COMBINED SINGLE LIMIT

AUTOS ONLY

AUTOSAUTOS ONLY

NON- OWNED

SCHEDULEDOWNED

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
STATUTEPER EROTHMM/DD/YYYY) LIMITS(

POLICY EXP(

MM/DD/YYYY) NUMBERTYPE EFFPOLICYPOLICY INSURANCELTRINSR OF 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
Y
1,000,000
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Enrichment Steam Programs
Final Audit Report 2021- 08-26
Created: 2021- 08-25
By: City of Cupertino ( webmaster@cupertino. org)
Status: Signed
Transaction ID: CBJCHBCAABAAoGzbZHUwKOv9GiaeXBIQGv1EKT9YljGO Enrichment Steam Programs" History
Document created by City of Cupertino ([email protected]) 2021- 08- 25 - 9:34:39 PM GMT- IP address: 35.229. 54.2 Document emailed to Araceli Alejandre ([email protected]) for approval 2021- 08- 25 - 9:37:03 PM GMT
Document approved by Araceli Alejandre ( aracelia@cupertino. org) Approval Date: 2021- 08-25 - 10:01:17 PM GMT - Time Source: server- IP address: 73.170. 27.253 Document emailed to Amita Dhingra ([email protected]) for signature 2021- 08- 25 - 10:01:20 PM GMT
Email viewed by Amita Dhingra ([email protected])
2021- 08- 25 - 10:02:53 PM GMT- IP address: 107. 77.212. 226 Document e-signed by Amita Dhingra ([email protected]) Signature Date: 2021- 08-26 - 3:58:23 AM GMT - Time Source: server- IP address: 73.231. 180. 151 Document emailed to Christopher D. Jensen ([email protected]) for signature 2021- 08- 26 - 3:58:26 AM GMT
Email viewed by Christopher D. Jensen ([email protected]) 2021- 08- 26 - 4:04:58 AM GMT- IP address: 174. 194. 199. 15 Document e-signed by Christopher D. Jensen ( christopherj@cupertino. org) Signature Date: 2021- 08-26 - 10:36:58 PM GMT - Time Source: server- IP address: 136. 24.42.212 Document emailed to Rachelle Sander ([email protected]) for signature 2021- 08- 26 - 10:37:00 PM GMT
Email viewed by Rachelle Sander ([email protected]) 2021- 08- 26 - 10:44:13 PM GMT- IP address: 104. 47.74.126 292
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Document e-signed by Rachelle Sander ( rachelles@cupertino. org) Signature Date: 2021- 08-26 - 10:44:55 PM GMT - Time Source: server- IP address: 64.165. 34.3 Document emailed to Kirsten Squarcia ([email protected]) for signature 2021- 08- 26 - 10:44:57 PM GMT
Email viewed by Kirsten Squarcia ([email protected]) 2021- 08- 26 - 10:45:12 PM GMT- IP address: 104. 47.73.254 Document e-signed by Kirsten Squarcia ([email protected]) Signature Date: 2021- 08-26 - 10:45:21 PM GMT - Time Source: server- IP address: 162. 245. 22.179 Agreement completed.
2021- 08- 26 - 10:45:21 PM GMT
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1 SECOND AMENDMENT TO AGREEMENT 20-001 BETWEEN THE CITY OF CUPERTINO AND SNAPOLOGY OF LOS GATOS DBA SV KIDS CORP. FOR

ENRICHMENT STEAM PROGRAMS
This Second Amendment to Agreement 20-001 between the City of Cupertino and Snapology of Los Gatos DBA SV Kids Corp. is by and between the CITY OF CUPERTINO, a municipal corporation ( hereinafter " City") and Snapology of Los Gatos DBA SV Kids Corp., a Corporation Contractor”) whose address is and is made with
reference to the following:

RECITALS:

A. On September 04, 2020, Agreement 20-001 (“ Agreement”) was entered into by and between City and Contractor for Enrichment Steam Programs.

B. On August 26, 2021, City and Contractor agreed to the First Amendment for Enrichment Steam Programs.

C. The Agreement and First Amendment are collectively referred to as the “ Agreement” unless otherwise indicated.

D. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows:

1. Paragraph 4 of the Agreement is modified to read as follows:

City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $ 131,000. 00 (“ Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A. The maximum compensation includes all costs, expense, and reimbursements and will remain in place even if the Contractor’ s actual costs exceed the capped amount. City will compensate Contractor within thirty (30) days after approval of written invoices.

2. Exhibit A-1 of the Agreement is replaced with a new Exhibit A-2 attached hereto.

3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.

SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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2 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date

SNAPOLOGY OF LOS GATOS DBA SV
KIDS CORP.

By
Title
Date

EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base Amount 21,000.00
Amendment 1 2022-112 36,000.00
Amendment 2 2022-182 74,000.00
131,000.00
1429656.1
Amita Dhingra
CFO
Jul 12, 2022
Christopher D. Jensen
Rachelle Sander
Acting Director of Parks and Recreation
Jul 13, 2022
Jul 13, 2022
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EXHIBIT A-2

SCOPE OF WORK, PERFORMANCE AND PAYMENT SCHEDULES
The CONTRACTOR will provide Enrichment Steam Programs in, but not limited to, the following:

Escape Snapology, KinderBots, Junior Creator' s Club, Animal Explorers/ Discovering Dinosaurs, Adaptive Play, Building Commitment to End Bullying
Location and Time of CONTRACTOR Services:

Compensation for CONTRACTOR Services:

Contractor shall be compensated for services performed pursuant to this Agreement.

For a class taught in person, 60% of resident fee per participant, based on final roster, for in-person programs. 70% of resident fee per participant, based on final roster, for online programs..

City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class.

Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins.

The total compensation to the Contractor shall not exceed $ 131,000.00.

Eligible Participant Minimum and Maximums for CONTRACTOR Services:

List of all Contractor Employees working for the City of Cupertino (if no Employees, identify self”):

See attached list of employees.

Performance of CONTRACTOR Services:
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Class Cancellation
Contractor will only receive compensation for a class that is performed. If performance of a class is cancelled by the City or Contractor before instruction begins, Contactor will not receive compensation for the class. If the City or Contractor cancels performance of certain meetings of a class, Contractor will only receive compensation for those meetings of the class that are performed.

Injury of a Class Participant
In the event of an injury occurring to a participant, the Contractor will notify the City within 1 hour and complete an Incident Report in the form approved by the City. The Incident Report must be submitted to the City within 24 hours of the injury occurring. 297
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Enrichment Steam Programs
Final Audit Report 2022- 07-13
Created: 2022- 07-12
By: City of Cupertino ( webmaster@cupertino. org)
Status: Signed
Transaction ID: CBJCHBCAABAAHHTPg82KORjeYF4uU6viF- bV5ds22871 Enrichment Steam Programs" History
Document created by City of Cupertino ([email protected]) 2022- 07- 12 - 11:09:23 PM GMT- IP address: 35.229. 54.2 Document emailed to Araceli Alejandre ([email protected]) for approval 2022- 07- 12 - 11:12:29 PM GMT
Document approved by Araceli Alejandre ( aracelia@cupertino. org) Approval Date: 2022- 07-13 - 1:06:10 AM GMT - Time Source: server- IP address: 73.170. 27.253 Document emailed to
2022- 07- 13 - 1:06:12 AM GMT
Email viewed by
2022- 07- 13 - 1:42:43 AM GMT- IP address: 172. 225. 88.144 Document e-signed by Amita Dhingra (
Signature Date: 2022- 07-13 - 6:03:48 AM GMT - Time Source: server- IP address: 67.180. 105. 242 Document emailed to [email protected] for signature 2022- 07- 13 - 6:03:50 AM GMT
Email viewed by [email protected]
2022- 07- 13 - 6:04:00 AM GMT- IP address: 104. 28.124. 90 Document e-signed by Christopher D. Jensen ( christopherj@cupertino. org) Signature Date: 2022- 07-13 - 2:33:39 PM GMT - Time Source: server- IP address: 136. 24.42.212 Document emailed to Rachelle Sander ([email protected]) for signature 2022- 07- 13 - 2:33:42 PM GMT
Email viewed by Rachelle Sander ([email protected]) 2022- 07- 13 - 3:14:32 PM GMT- IP address: 73.158. 59.6 303
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Document e-signed by Rachelle Sander ( rachelles@cupertino. org) Signature Date: 2022- 07-13 - 3:16:16 PM GMT - Time Source: server- IP address: 73.158. 59.6 Document emailed to Kirsten Squarcia ([email protected]) for signature 2022- 07- 13 - 3:16:18 PM GMT
Email viewed by Kirsten Squarcia ([email protected]) 2022- 07- 13 - 4:06:40 PM GMT- IP address: 172. 225. 80.193 Document e-signed by Kirsten Squarcia ([email protected]) Signature Date: 2022- 07-13 - 4:06:57 PM GMT - Time Source: server- IP address: 172. 226. 41.167 Agreement completed.
2022- 07- 13 - 4:06:57 PM GMT
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1 THIRD AMENDMENT TO AGREEMENT 20-001

BETWEEN THE CITY OF CUPERTINO AND
SNAPOLOGY OF LOS GATOS DBA SV KIDS CORP.

FOR ENRICHMENT STEAM PROGRAMS
This Third Amendment to Agreement 20-001 between the City of Cupertino and Snapology of Los Gatos DBA SV Kids Corp. is by and between the City of Cupertino, a municipal corporation hereinafter " City") and Snapology of Los Gatos DBA SV Kids Corp., a Corporation (“ Contractor”) whose address is 1147 Holly Ann Place, San Jose, CA 95120, and is made with reference to the following:

RECITALS:

A. On September 04, 2020, Agreement 20-001 (“Agreement”) was entered into by and between City and Contractor for Enrichment Steam Programs.

B. On August 26, 2021, City and Contractor agreed to the First Amendment for Enrichment Steam Programs.

C. On July 13, 2022, City and Contractor agreed to the Second Amendment for Enrichment Steam Programs.

D. The Agreement, First Amendment, and Second Amendment are collectively referred to as the “Agreement” unless otherwise indicated.

E. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:

1. Paragraph 3 of the Agreement is modified to read as follows:

Term. This contract begins on the Effective Date and ends on 12/31/2023 (“ Contract Time”), unless extended or terminated as provided herein. Time is of the essence and Contractor must have sufficient time, resources, and qualified staff to deliver the Services as required. Contractor must promptly notify City of any actual or potential delays to afford the Parties adequate opportunity to address or mitigate such delays. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’ s purchasing policy.

2. Paragraph 4 of the Agreement is modified to read as follows:

Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed 151,000.00 (“ Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A-2. The maximum compensation includes all costs, expenses, and reimbursements and will remain in place even if Contractor’ s actual costs exceed the capped amount. Contractor must submit invoices and the information required 305
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2 in Exhibit A-2 in order to receive payment. City will compensate Contractor within thirty 30) days after approval of written invoices.

3. Exhibit A-2 of the Agreement is modified as follows, under Compensation for CONTRACTOR Services:

The total compensation to the Contractor shall not exceed $ 151,000. 00.

4. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.

IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date

SNAPOLOGY OF LOS GATOS DBA SV
KIDS CORP.

By
Title
Date
Amita Dhingra
CFO
Jun 27, 2023
Christopher D. Jensen
Director of Parks and Recreation
Jun 28, 2023
Jun 28, 2023
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3 EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base Amount 2021-159 21,000.00
Amendment 1 2022-112 36,000.00
Amendment 2 2022-182, 2023-101 74,000.00
Amendment 3 20,000.00
151,000.00
1429656. 1
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Enrichment Steam Programs
Final Audit Report 2023- 06-28
Created: 2023- 06-27
By: City of Cupertino ( webmaster@cupertino. org)
Status: Signed
Transaction ID: CBJCHBCAABAAJCbjpdRYxyn1bScewg2vvaFWAGHYo8iL Enrichment Steam Programs" History
Document created by City of Cupertino ([email protected]) 2023- 06- 27 - 11:38:10 PM GMT- IP address: 35.229. 54.2 Document emailed to Araceli Alejandre ([email protected]) for approval 2023- 06- 27 - 11:39:38 PM GMT
Document approved by Araceli Alejandre ( aracelia@cupertino. org) Approval Date: 2023- 06-28 - 1:03:56 AM GMT - Time Source: server- IP address: 73.170. 104. 117 Document emailed to com for signature
2023- 06- 28 - 1:03:57 AM GMT
Email viewed by
2023- 06- 28 - 4:52:57 AM GMT- IP address: 66.249. 84.227 Signer entered name at signing as Amita Dhingra
2023- 06- 28 - 4:54:38 AM GMT- IP address: 73.241. 198. 147 Document e-signed by Amita Dhingra (
Signature Date: 2023- 06-28 - 4:54:40 AM GMT - Time Source: server- IP address: 73.241. 198. 147 Document emailed to [email protected] for signature 2023- 06- 28 - 4:54:41 AM GMT
Email viewed by christopherj@cupertino. org
2023- 06- 28 - 4:54:54 AM GMT- IP address: 104. 28.123. 88 Signer [email protected] entered name at signing as Christopher D. Jensen 2023- 06- 28 - 11:32:47 AM GMT- IP address: 136. 24.22.194 Document e-signed by Christopher D. Jensen ([email protected]) Signature Date: 2023- 06-28 - 11:32:49 AM GMT - Time Source: server- IP address: 136. 24.22.194 314
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Document emailed to Rachelle Sander ( rachelles@cupertino. org) for signature 2023- 06- 28 - 11:32:50 AM GMT
Email viewed by Rachelle Sander ([email protected]) 2023- 06- 28 - 3:19:38 PM GMT- IP address: 104. 47.73.126 Document e-signed by Rachelle Sander ([email protected]) Signature Date: 2023- 06-28 - 3:20:10 PM GMT - Time Source: server- IP address: 64.165. 34.3 Document emailed to Kirsten Squarcia ([email protected]) for signature 2023- 06- 28 - 3:20:11 PM GMT
Email viewed by Kirsten Squarcia ([email protected]) 2023- 06- 28 - 3:22:38 PM GMT- IP address: 104. 28.124. 104 Document e-signed by Kirsten Squarcia ([email protected]) Signature Date: 2023- 06-28 - 3:29:59 PM GMT - Time Source: server- IP address: 67.188. 176. 248 Agreement completed.
2023- 06- 28 - 3:29:59 PM GMT
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1 FOURTH AMENDMENT TO AGREEMENT 20-001

BETWEEN THE CITY OF CUPERTINO AND
SNAPOLOGY OF LOS GATOS DBA SV KIDS CORP.

FOR ENRICHMENT STEAM PROGRAMS
This Fourth Amendment to Agreement 20-001 between the City of Cupertino and Snapology of Los Gatos DBA SV Kids Corp. is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Snapology of Los Gatos DBA SV Kids Corp., a Corporation (“Contractor”) whose address is 1147 Holly Ann Place, San Jose, CA 95120, and is made with reference to the following:

RECITALS:

A. On September 04, 2020, Agreement 20-001 (“Agreement”) was entered into by and between City and Contractor for Enrichment Steam Programs.

B. On August 26, 2021, City and Contractor agreed to the First Amendment for Enrichment Steam Programs.

C. On July 13, 2022, City and Contractor agreed to the Second Amendment for Enrichment Steam Programs.

D. On June 28, 2023, City and Contractor agreed to the Third Amendment for Enrichment Steam Programs.

E. The Agreement, First Amendment, Second Amendment, and Third Amendment are collectively referred to as the “Agreement” unless otherwise indicated.

F. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:

1. Paragraph 3 of the Agreement is modified to read as follows:

Term. This contract begins on the Effective Date and ends on 8/31/2026 (“Contract Time”), unless extended or terminated as provided herein. Time is of the essence and Contractor must have sufficient time, resources, and qualified staff to deliver the Services as required.

Contractor must promptly notify City of any actual or potential delays to afford the Parties adequate opportunity to address or mitigate such delays. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds.

Extensions requiring additional contract funds are subject to the City’s purchasing policy.

2. Paragraph 4 of the Agreement is modified to read as follows:

Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed $341,105.00 (“Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A-2. The maximum compensation includes all costs, 316
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2 expenses, and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. Contractor must submit invoices and the information required in Exhibit A-2 in order to receive payment. City will compensate Contractor within thirty (30) days after approval of written invoices.

3. Exhibit A-2 of the Agreement is modified as follows, under Compensation for CONTRACTOR Services:

The total compensation to the Contractor shall not exceed $341,105.00.

4. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.

IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO
By
Title
Date

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date

SNAPOLOGY OF LOS GATOS DBA SV
KIDS CORP.

By
Title
Date
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3 EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base Amount 2021-159 21,000.00
Amendment 1 2022-112 36,000.00
Amendment 2 2022-182, 2023-101 74,000.00
Amendment 3 2024-97 20,000.00
Amendment 4 190,105.00
- - 341,105.00
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CITY OF CUPERTINO
Agenda Item
23-12344 Agenda Date: 11/7/2023
Agenda #: 10.

Subject: Hungry Jacks Corporation (Blue Pheasant) lease agreement, 22100 Stevens Creek Boulevard, Cupertino, CA 95014.

Authorize the City Manager to execute a two-year lease agreement with three optional one-year options to extend with Hungry Jacks Corporation for 22100 Stevens Creek Boulevard, Cupertino, CA 95014 (Blue Pheasant).

CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Hungry Jacks Corporation (Blue Pheasant) lease agreement, 22100 Stevens Creek Boulevard, Cupertino, CA 95014.

Recommended Action
Authorize the City Manager to execute a two-year lease agreement with three one-year options to extend with Hungry Jacks Corporation for 22100 Stevens Creek Boulevard, Cupertino, CA 95014 (Blue Pheasant).

Reasons for Recommendation
The Blue Pheasant Restaurant is situated on City of Cupertino owned land at 22100 Stevens Creek Boulevard, at the entrance to the Blackberry Farm Golf Course (see Attachment A for Vicinity Map). Within the same building, the City operates the Blackberry Farm Golf Course Pro-shop.

The restaurant is approximately 6,800 square feet and includes a kitchen, bar, banquet room, office, and restrooms. The restaurant also has the non-exclusive use of 92 parking spaces in the adjacent parking lot.

The Blue Pheasant has operated at this location since 1974 and has worked to ensure the restaurant operations minimize impacts to the surrounding neighborhood. The tenant’s operations were greatly impacted by the shelter in-place orders, but the tenant is up to date on all rent payments. Further, the tenant has been responsive to City requests.

The lease being presented was negotiated in late 2022 and early 2023 while the business impacts of Covid-19 protocols were still in question. However, the lease execution was put on hold due to the studies on the future usage of the Blackberry Farm Golf Course property. Now that the City Council has approved the ongoing golf course operations, and due to the information provided above, the City is offering a two-year lease, with three one-year options to extend at the City’s sole discretion. 320
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The current lease with Hungry Jack’s Restaurant Corporation expired on June 30, 2021, and the lease has been continued on a month-to-month basis since that date, as provided for in the lease agreement.

On October 17, City Council authorized staff to proceed with making repairs to Blackberry Farm Golf Course, and through said action, confirming that the City intends to continue the golf course operations. Based on this action, the City is presenting an updated lease agreement with the Blue Pheasant for Council approval.

The updated lease contains the following substantive terms:
1) Base Rent of $6,715/month ($80,580/year) – (unchanged from current lease) 2) Additional payment of 6% of gross sales (pre-covid revenues were approximately $30,000/year) – (unchanged from current lease) 3) An initial two-year lease term, with three one-year extensions (each at City’s sole discretion to extend)
4) Tenant’s maintenance and utility payment obligations The lease is substantially equivalent to the lease agreement executed in 2013, with the addition of updated and strengthened legal language, including indemnifications for the City.

Sustainability Impact
No sustainability impact.

Fiscal Impact
The City receives $80,580 in base rent annually, plus six percent of the tenants’ gross sales (approximately $30,000 annually).

California Environmental Quality Act (CEQA)
This project is exempt from CEQA under CEQA Guidelines section 15301 (operation of an existing facility).
_____________________________________
Prepared by: Chad Mosley, Director of Public Works
Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Vicinity Map
B – Draft Lease Agreement
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Attachment A
Blue Pheasant Vicinity Map
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1 LEASE AGREEMENT BETWEEN

THE CITY OF CUPERTINO AND HUNGRY JACKS CORPORATION
FOR PROPERTY LOCATED AT 22100 STEVENS CREEK BOULEVARD
This lease agreement is made on _____________, 2023, by and between the City of Cupertino ("Landlord"), a municipal corporation of the State of California, and Hungry Jack’s Restaurant Corporation, a California Corporation whose address for purposes of this Lease is 22100 Stevens Creek Boulevard, Cupertino, California 95014 ("Tenant"). The building to be leased under the Agreement (“Building”) consists of 6,800 square feet and is commonly known as "The Blue Pheasant Restaurant" and is more particularly described as 22100 Stevens Creek Boulevard, City of Cupertino, County of Santa Clara, State of California. Landlord and Tenant shall each be a “Party” and shall be collectively referred to as the “Parties.”

RECITALS
A. On April 7, 2004 Tenant assumed a lease for the Building for the purpose of operating the Blue Pheasant Restaurant.

B. On April 1, 2009, the Parties agreed to extend the lease through March 31, 2013.

C. On July 3, 2013, the Parties agreed to a new lease for the term June 30, 2013 through June 30, 2018.

D. On June 27, 2018, in the First Amendment to Lease Agreement, the Parties agreed to extend the lease term through June 30, 2021.

E. On September 29, 2020, in the Second Amendment to Lease Agreement, the Parties agreed to adjust the rent for the Building in consideration of restrictions on indoor dining as a result of the COVID-19 pandemic.

F. The lease expired on June 30, 2021, but City and Tenant have continued Tenant’s leasing operations on a month-to-month basis under the terms and provisions of the Lease, with monthly rent at first following the provisions of the Second Amendment to the Lease Agreement, and then at a rate consistent with the Base Rent, without the one and one-half increase in the Base Rent.

G. Tenant and Landlord wish to enter into a new lease for the continued use of the Building as a restaurant and bar. The new lease (“Lease”) shall replace and supersede all prior leases for the Building between the Parties. On the effective date of this Lease, all prior leases shall be terminated and of no further force or effect.

NOW THEREFORE, in consideration of the terms, covenants, and conditions set forth below, the Parties agree as follows:

Attachment B
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2 1. DESCRIPTION OF THE PREMISES TO BE LEASED
Landlord leases to Tenant and Tenant leases from Landlord a portion of the Building designated for use as a restaurant commonly known as the "Blue Pheasant," including the kitchen, bar, banquet room, the furniture, fixtures, and equipment (“FF&E”) attached to the Building listed in Exhibit A, and the non-exclusive use of ninety two (92) parking spaces in the City’s parking lot adjacent to the Building (collectively, the “Premises”) as depicted in Exhibit B. The Premises excludes Landlord’s real property consisting of the Blackberry Farm Golf Course and the area of the Building designated and used by Landlord as a golf professional shop and restroom.

2. LEASE TERMS
a. Initial Term. This Lease shall commence on December 1, 2023 and end on November 30, 2025, unless otherwise terminated under the provisions of this Lease (“Initial Term”).
b. Extension Periods. Upon agreement of Landlord and Tenant, the term of this Lease may be extended for up to three periods of one (1) year each (each an “Extension Term”) on the same terms, covenants, and conditions as this Lease, excluding only the COVID-19 Rent Adjustment as defined in Section 3.a. To extend the Lease term for an Extension Term, Tenant shall give Landlord written notice of its request for an extension (“Extension Notice”) at least ninety (90) days but not more than one hundred eighty (180) days before the expiration of the previous term. If Tenant is in default under this Lease at the time of the Extension Notice or on the date of commencement of the Extension Term, Landlord, in its sole and absolute discretion, may declare the Extension Notice void, decline to extend the Lease for the Extension Term, and terminate the Lease. If Landlord terminates the Lease, Tenant shall immediately surrender possession of the Premises to Landlord. Landlord’s approval of the Extension Term shall be in Landlord’s sole and absolute discretion. Landlord shall review the Extension Notice and approve or deny the request for the Extension Term within sixty (60) days after receipt of the Extension Notice. During any Extension Term, either Party, in its sole and absolute discretion, may terminate the Lease by providing six (6) months written notice to the other Party. The Initial Term and any Extension Terms shall each be a “Term” of this Lease and shall be collectively referred to as the “Terms.”

3. RENT
In consideration for the lease of the Premises, Tenant shall pay Landlord as follows:
a. Base Rent. Tenant shall pay to Landlord a monthly base rent, without deduction or setoff, in the amount of six thousand seven hundred fifteen dollars ($6,715.00) commencing December 1, 2023 (“Base Rent”). The Base Rent has been reduced by $160 per month to off-set 324
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3 charges from public utilities Tenant pays each month attributable to the Blackberry Farm Golf Course restroom located in the Building under Section 7.b of this Lease, as referenced in the Release of Claims between Tenant and Landlord dated June 12, 2019. As consideration for the offset in Base Rent, Tenant shall continue to pay all utility charges for the Building under Section 7.b and agrees to discharge Landlord, its agents, employees, successors, and assigns from any and all bills, claims, demands, lien, or other expenses arising from utility charges for the Blackberry Farm Golf Course restroom during the Terms. Base Rent shall be payable in advance on or before the first day of each month without notice or demand of any kind by Landlord. If Base Rent is not paid within ten (10) days after the due date, Base Rent is deemed late and delinquent and Landlord shall assess a late charge of $250 plus interest at the legal rate on the delinquent amount as additional rent.
b. Percentage of Gross Sales. In addition to Base Rent, Tenant shall pay to Landlord not later than April 30 of each year an amount equal to six percent (6%) of the amount of Tenant's gross receipts from sales (“Gross Sales”), as defined below, made in, out, through, or from the Premises during each prior calendar year commencing January 1, 2023 during each month of the Terms of this Lease (“Percentage Rent”). Tenant shall submit a copy of its annual tax return to Landlord with Tenant’s annual Percentage Rent payment. If Tenant’s annual tax return has not been filed by April 30 of any year, Tenant shall pay Landlord the Percentage Rent for the prior year on April 30 based on Tenant’s computation of its Gross Sales from Tenant’s available books and records. Tenant and Landlord shall make any adjustments to the Percentage Rent payment after Tenant files its tax return. Tenant shall pay Landlord the Percentage Rent for any portion of the calendar year in which a Term expires or is terminated not later than sixty (60) days after the Lease term expires or is terminated based on Tenant’s computation of its Gross Sales from Tenant’s available books and records. The Parties shall make any adjustments to the Percentage Rent payment after Tenant files its tax return for the tax year in which the Term expires or is terminated. Tenant may elect to pay Percentage Rent monthly. "Gross Sales" as used in this lease agreement means the sales price of all food, sundry food items, nonalcoholic and alcoholic beverages, and other commercial items sold and the charges made for all services performed in which a charge is made by Tenant or its subtenants in or upon any part of the Premises, whether for cash or on credit, whether paid or unpaid, collected or uncollected, less all credits for returned merchandise, exchanges, refunds, and allowances.

The amount of sales tax or excise tax based on sales imposed by any governmental taxing authority shall be excluded from gross sales.

Landlord’s acceptance of any Percentage Rent payment from Tenant shall not be an admission of the accuracy or sufficiency of the amount of the payment, and Landlord shall be entitled at any time within five (5) years after the receipt of any Percentage Rent to question the sufficiency of the amount of the payment or the accuracy of any statement or statements furnished by Tenant to justify the amount or amounts paid. 325
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4 c. Books and Records. Tenant shall keep complete and proper books, records, and accounts of Gross Sales both for cash and on credit of each separate department and concession at any time operated on the Premises, including all federal, state, and local tax returns relating to the determination of gross receipts. Tenant shall keep such books, records, and accounts on the Premises or at its principal office for a period of not less than seven (7) years following the end of each lease year. Landlord and Landlord's authorized representatives shall have the right to examine Tenant's records during regular business hours.

Landlord may, once in any calendar year, cause an audit of Tenant’s business to be made by a certified public accountant selected by Landlord. If the statements of Gross Sales previously made by Tenant to Landlord are found to be less than the amount of Tenant's Gross Sales as shown by the audit, Tenant shall immediately pay the cost of the audit as well as the additional Percentage Rent shown in and by the audit to be due Landlord; otherwise, the cost of the audit shall be paid by Landlord. If Tenant shall at any time cause an audit of Tenant's business to be made by a certified public accountant, Tenant shall furnish Landlord with a copy of the audit without any cost to Landlord.
d. Address for Payments. All payments of Base and Percentage Rent shall be submitted to the City of Cupertino, Attention Finance Department, 10300 Torre Avenue, Cupertino, California 95014.
e. Guaranty Agreement. Tenant’s principle Michael Tsachres shall execute the Guaranty Agreement attached as Exhibit C personally guaranteeing payment of all sums due Landlord under the Lease. Tenant shall deliver the executed Guaranty Agreement to Landlord prior to the start of the Initial Term.
f. Survival of Rent Obligations. Tenant’s obligations to pay Landlord Base and Percentage Rent and additional rent provided herein shall survive the expiration or termination of the Lease.

4. HOLDING OVER
If Tenant remains in possession of the Premises with Landlord’s consent after the expiration of a Term, such possession by Tenant shall be construed to be a tenancy from month to month, terminable on thirty (30) days’ notice given at any time by either Party. The same terms and conditions contained in this Lease shall apply to any month-to-month tenancy, provided that the new Base Rent shall be one and one-half times the Base Rent as defined in Paragraph 3.a of this Lease.
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5 5. USE OF THE PREMISES; OPERATION
a. Use. Tenant shall continuously use and occupy the Premises exclusively as a restaurant and bar with parking which shall be open to the general public. Tenant shall not use or permit the use of the whole or any part of the Premises for any other purpose without the Landlord’s prior written consent.
b. Compliance with zoning regulations. Tenant’s use of the Premises shall be consistent with the rules and regulations of Landlord's PR (“Public Recreation”) zoning district as set forth in Cupertino Municipal Code Sections 19.84 and 19.92. c. Operating Hours. Tenant shall ensure compliance with the following requirements for operating hours:
(1) Doors to the restaurant and bar shall close at eleven o’clock in the evening (11 p.m.) and no persons shall be allowed into the Premises after that time. (2) No alcohol shall be served after eleven thirty in the evening (11:30 p.m.). (3) All music shall stop no later than twelve midnight (12 a.m.). (4) The parking lot on the Premises shall be cleared of restaurant patron vehicles no later than twelve-thirty in the evening (12:30 a.m.). Restaurant staff and security may park vehicles in the parking lot after 12:30 am if working on the Premises. d. Penalties for Failure to Enforce Operating Hours. If Landlord, Landlord’s representatives, or Deputy County Sheriffs observe Tenant’s violation of the limits on operating hours in Section 5.c, Landlord shall give written notice to Tenant of the date, time, and manner of the violation. Within fifteen (15) days after Landlord’s notice of violation, Tenant shall pay to Landlord the following penalties:
(1) First violation in a twelve-month period: two hundred dollars ($200.00); (2) Second violation in a twelve-month period: four hundred dollars ($400.00); and (3) Third and subsequent violations in a twelve-month period: one thousand dollars ($1000.00) for each violation.
e. Post Notice of Operating Hours. Tenant shall post its hours of operation at the main entrance to the Premises in a manner that will give reasonable notice of its operating hours to prospective customers.
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6 f. Security during operating hours. Tenant shall provide one security guard to patrol the Premises during all operating hours and ensure that trash and litter is removed from the Premises parking lot upon closure each day.
g. Shared Use of Parking Lot. Tenant acknowledges that it does not have exclusive use of the parking lot adjacent to the Building and that all spaces in the lot shall be available to all persons on a first-come, first-served basis. Landlord shall not be liable in any manner for any inconvenience, disturbance, loss of business, other damage arising out of availability of the firstcome, first-served parking spaces.

6. LANDLORD'S OBLIGATIONS
Landlord shall, at its sole expense, keep, maintain, and repair the exterior walls and roof of the Building and the parking lot (“Exterior”). Landlord may commence any such maintenance or repair by giving Tenant five days’ written notice. Should Landlord’s maintenance or repair of the Exterior temporarily prevent Tenant from operating its restaurant and bar, one hundred percent (100%) of the Base Rent shall be abated during that temporary period.

7. TENANT'S OBLIGATIONS
a. Renovations and Improvements. Tenant shall not undertake any construction on the Premises without Landlord’s consent. All alterations, improvements, or additions that are now or in the future attached permanently to the Premises shall be the property of Landlord and remain with the Premises at the termination of this Lease, except that Landlord may require Tenant, at Tenant’s cost, to remove any alterations, improvements, or additions Tenant has made to the Premises.
b. Utility payments. Tenant shall pay, as they become due, all charges for water, heat, electric, gas, garbage, and all other utilities furnished to, or consumed on the Premises for the maintenance, use, and operation of the Premises during a Term (including any holding-over), including utility charges for the Blackberry Farm Golf Course restrooms, as referenced in Section 3.a. Tenant shall retain all receipts for payment of utility charges for three (3) years after payment. Upon request of the Landlord, Tenant shall produce receipts showing the payment of said utilities. Tenant’s obligation to retain receipts for utility charges shall survive the expiration or termination of this Lease.
c. Refuse collection. Tenant shall arrange for refuse collection services by the City of Cupertino and shall reserve a parking space for pick-up of refuse on collection days scheduled by the City's refuse collection franchise.
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7 d. Actions Affecting Insurance Rates. Tenant shall not do or permit anything to be done in or about the Premises, nor store anything therein, which would in any way increase the rate of fire insurance on the Premises.
e. Property Taxes and Assessments. Tenant shall pay, when due, all possessory interest Property taxes and special assessments imposed on the Premises by any public entity during a Term.
f. Premises Maintenance. Tenant shall, at its own expense, maintain and keep in good repair all interior portions of the Premises in a clean, safe, and sanitary condition, including, without limitation, all fixtures, interior walls, floors, painting, ceilings, plumbing, air conditioning and heating equipment, elevator for disabled persons, freezers, ventilation ducts, kitchen equipment and appliances, garbage disposal equipment, grease traps, stairs separating the first and second floors, restroom facilities. rodent control, glass, water lines, electric service, and sewage facilities servicing the Premises (collectively, “Interior”), and shall keep the Interior and Exterior reasonably free and clean of all debris, trash, and rubble. Tenant’s responsibility for maintenance of the Premises includes the following specific tasks:
(1) Clean on a daily basis the grease deposit units located under the canopy and outlet flues above all grill installations.
(2) Contract with a licensed commercial cleaning service to clean the hood and ventilation ducts and equipment above all grills, at least once every six month.; (3) Service the automatic fire extinguisher located above all grills and provide for the maintenance and inspection of all fire extinguishers on the Premises in compliance with the Fire Code and other applicable local ordinances and regulations.

Landlord retains and reserves the right to inspect the Premises to insure that Tenant’s maintenance and repairs of the Premises are satisfactory. All repairs of and improvements to the Premises are subject to prior written approval by Landlord. g. Repairs on Demand by Landlord. Tenant shall make all required repairs of the Interior upon written demand by Landlord based on Landlord’s inspection. Failure to make such repairs within thirty (30) days after Landlord’s written demand shall constitute a default by Tenant.
h. Compliance with Laws. Tenant shall, at its sole expense, remain in compliance with all local, state, and federal laws and ordinances concerning the Premises, the occupancy and use thereof, and the business conducted therein. Should Tenant violate any laws and ordinances, Landlord may, but shall not be obligated to, correct the violation. In any case where Landlord corrects the violation, Landlord’s expenses to correct the violation, plus all interest and any 329
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8 penalties incurred by Landlord due to the violation of law, shall be added to the installment of Base Rent next becoming due and shall be collectible as additional rent in the same manner and with the same remedies as if it had been originally reserved as Base Rent. i. Payment of Fees and Charges. Tenant shall pay, before delinquency, any and all taxes, assessments, license fees, and public charges levied, assessed, or imposed, and which become payable during a Term (including holdovers) upon Tenant's FF&E and personal property installed or located on the Premises.

8. INDEMNITY AND WAIVER
To the fullest extent allowed by law, Tenant, its officers, employees, agents, and subcontractors (collectively, “Tenant”) agrees to and shall indemnify, defend, and hold harmless Landlord, its Council, boards and commissions, officers, officials, employees, agents, servants, and volunteers (collectively “Indemnitees”), from and against any and all liability, loss, damage (including consequential damages), costs and expenses, claims and actions, regardless of nature or type (“Liabilities”), arising out of or in connection with Tenant’s use of the Premises, performance under this Lease, business operations, work on the Premises, and failure to comply with any of its obligations in connection with this Lease, except for loss or damage caused by the sole and active negligence or willful misconduct of Landlord.

Liabilities for which Tenant agrees to indemnify, defend, and hold harmless Indemnitees include without limitation, damage to the Premises and any FF&E or personal property in or on the Premises and injury or death occurring in or about the Premises, including the parking lot, caused by Tenant or Tenant’s guests or invitees, or resulting from Tenant’s failure to keep the Premises in good condition and repair, or from any act or omission by Tenant, its agents, contractors, invitees, or employees. Tenant also agrees to indemnify, defend, and hold harmless Indemnitees from all damages, liability, fines, penalties, and any other consequences arising from the noncompliance of the Premise with or violation of any laws, ordinances, codes, or regulations, including but not limited to the Occupational Safety and Health Act and the Americans with Disabilities Act, including, without limitation, litigation costs and expenses, reasonable costs of legal counsel of Landlord’s choice, expert fees, and all other costs and fees incurred in investigating, defending, or prosecuting litigation or similar proceedings and the threat thereof.

Tenant’s obligation to defend Indemnitees shall accrue immediately upon the filing of any litigation against any Indemnitee and shall not be contingent on a final determination in the litigation that the Indemnitee is liable for the claims brought in the litigation.

Tenant hereby expressly waives all claims against Landlord for damages to goods, wares, and merchandise in, on, or about the Premises, and for injuries to persons in, on, or about the Premises, from any cause arising at any time during the Terms. 330
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9 The indemnities and waivers provided herein shall survive the expiration or termination of the Lease.

9. INSURANCE
For the duration of the Terms, Tenant shall procure and maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection with Tenant’s operation, use of, and work on the Premises. Tenant shall bear the cost of such insurance.
a. Minimum Scope and Limit of Insurance. Insurance coverage shall be at least as broad as:
(1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including but not limited to products and completed operations, property damage, bodily injury and personal and advertising injury, with limits no less than $10,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to the Premises (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. The CGL policy must include Liquor Liability.
(2) Property insurance against all risks of loss to the Premises, tenant improvements or betterments, and Tenant’s FF&E at full replacement cost with no coinsurance penalty provision.
(3) Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Tenant has no owned autos, hired (Code 8) and non-owned (Code 9) autos, with limit no less than $10,000,000 per accident for bodily injury and property damage.
(4) Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease.

If Tenant maintains broader coverage and/or higher limits than the minimums shown above, Landlord requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Landlord.
b. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:

(1) Additional Insured Status. Landlord, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising from 331
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10 Tenant’s use of the Premises or the Lease or from work or operations performed on the Premises by or on behalf of Tenant, including materials, parts, or equipment furnished in connection with such operations or work. General liability coverage can be provided in the form of an endorsement to Tenant’s insurance (at least as broad as ISO Form CG 20 10.)

(2) Primary Coverage. For any claims related to this contract, Tenant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects Landlord, its officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by Landlord, its officers, officials, employees, or volunteers shall be excess of Tenant’s insurance and shall not contribute with it. (3) Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with thirty (30) days’ notice to Landlord. (4) Waiver of Subrogation. Tenant hereby grants to Landlord a waiver of any right to subrogation which any insurer of Tenant may acquire against Landlord by virtue of the payment of any loss under such insurance. Tenant agrees to obtain endorsements necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not Landlord has received a waiver of subrogation endorsement from the insurer. (5) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.

Best’s rating of no less than A: VII, unless approved in writing by Landlord. (6) Self-Insured Retentions. Self-insured retentions must be declared and approved by Landlord. At Landlord’s sole and absolute discretion, Tenant shall either obtain coverage to reduce or eliminate such self-insured retentions as respects Landlord, its officers, officials, employees, and volunteers, or provide a financial guarantee satisfactory to Landlord guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either by Tenant or the financial guarantor approved by Landlord. (7) Verification of Coverage. Tenant shall furnish Landlord with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required above. All certificates and endorsements are to be received and approved by Landlord before Tenant’s use of the Premises or any work by or on behalf of Tenant commences. However, failure to obtain the required documents prior to the commencement of any such work shall not waive Tenant’s obligation to provide the certificates and endorsement. Landlord reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
(8) Special Risks or Circumstances. Landlord reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances
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11 c. Survival of Insurance Obligations. The requirements for insurance provided herein shall survive the expiration or termination of the Lease.

10. MECHANICS LIENS
Tenant shall keep the Premises free and clear from all liens which may be filed as the result of any improvements made on the Premises by any mechanic, laborer, material man, or general contractor. If Tenant, in violation of the foregoing condition, fails to pay and retire the amount for which such a lien is security, Landlord may, at its option, terminate this Lease upon giving written notice of such intention; or Landlord may, at its option, pay the amount necessary to release said lien, in which case all costs, interest, and penalties connected therewith shall be added to the installment of Base Rent next becoming due and shall be collectible in the same manner and with the same remedies as if it had been originally reserved as Base Rent. Landlord shall have the right to post and maintain on the Premises such notices of non-responsibility as are provided under California law governing mechanic's liens. Landlord’s remedies under this Section 10 shall survive expiration or termination of the Lease.

11. ASSIGNMENT AND SUBLETTING
Tenant shall not assign, sublet, license, mortgage, or transfer its interest in this Lease or in all or any portion of the Premises, nor shall Tenant allow any other person to use or occupy the Premises, or any part thereof, without the express written consent of Landlord. The consent to one assignment, sublet, license, mortgage, transfer, use, or occupancy shall not be construed to be a consent to any subsequent assignment, sublet, license, mortgage, transfer, use, or occupancy. Landlord shall have the sole discretion to require a deposit equal to the first and last two months’ rent, and to require written guarantees in exchange for its consent to any assignment or sublease. Any assignment, encumbrance, or sublease without Landlord’s consent shall be voidable and, at Landlord’s election, shall constitute a default. The surrender of this Lease by Tenant, voluntarily or otherwise, or a mutual termination of the Lease, shall cause the termination of any existing subleases or sub-tenancies to which Landlord consented, or may, in the Landlord's sole and absolute discretion, operate as an assignment to Landlord of any or all such subleases or sub-tenancies.

12. SALE OF THE PREMISES
Any sale or conveyance by Landlord of the Premises shall be made subject to this Lease and shall operate to release Landlord from any further or future liability under any of the terms, covenants, and conditions of the Lease, whether express or implied, and from and after the date of Landlord’s sale or conveyance of the Premises, Tenant shall look solely to the successor in interest of Landlord for performance of the terms, covenants, and conditions of this Lease.

13. DEFAULTS AND REMEDIES
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12 a. Immediate Defaults. The occurrence of any of the following shall constitute an immediate default by Tenant as to which Tenant shall have no right to cure:
(1) Tenant’s failure to pay rent when due, if the failure continues for ten (10) days after Landlord gives notice to Tenant.
(2) Tenant’s abandonment and vacation of the Premises before the end of a Term.

Tenant’s failure to occupy and operate the Premises for twenty (20) consecutive days unless excused by Landlord shall be deemed an abandonment and vacation. (3) Tenant’s general assignment or general arrangement for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged bankrupt or Tenant’s filing of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days); the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets, where possession is not restored to Tenant within forty-five (45) days; or the attachment, execution, or other judicial seizure of substantially all of Tenant’s assets, where such seizure is not discharged within thirty (30) days.
(4) Tenant’s failure to pay any penalties assessed under Section 5.d of this Lease, or if Landlord, its designated representatives, or the County Sheriff observe more than three violations of Section 5.c(1) (Operating Hours - no patrons after 11 p.m.) in any twelve-month period. (5) Tenant’s assignment, sublet, license, mortgage of the Premises or any part of the Premises, whether voluntary or involuntary, without written consent by Landlord.

Landlord’s notice of default to Tenant under this Section 13.a shall specify Tenant’s default and the Lease provision violated by Tenant. If Tenant defaults under this Section 13.a, Landlord, in its sole and absolute discretion, may either declare the Lease terminated and demand that Tenant immediately surrender possession of the Premises to Landlord or specify a period of time for Tenant to cure the default. If Tenant fails to cure the default within the time specified in Landlord’s notice, Landlord, in its sole and absolute discretion, may either declare the Lease terminated and demand that Tenant immediately surrender possession of the Premises to Landlord, or specify a further period of time for Tenant to cure the default. b. Defaults Subject to Cure. Tenant’s violation of any provision of this Lease not specified in Section 13.a, if the violation is not cured within the time stated in Landlord’s notice of violation to Tenant, shall constitute a default. If the violation cannot reasonably be cured within the period specified in the notice, Tenant shall not be in default of this Lease if Tenant commences to cure the violation within the period and diligently and in good faith continues to cure the violation. Tenant’s failure to cure its violation of the Lease within the time permitted under this Section 13.b shall constitute an immediate default by Tenant as to which Tenant shall 334
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13 have no further right to cure and Tenant shall immediately surrender possession of the Premises to Landlord. Notices given under this Section 21.b shall specify Tenant’s default and the Lease provision violated by Tenant, and shall demand that Tenant correct the violation within the period of time specified in the notice, or immediately surrender possession of the Premises to Landlord.
c. Landlord’s Remedies for Tenant’s Default.

The following Landlord remedies for Tenant’s default are not exclusive and are in addition to any remedies now or later allowed by law.
(1) Termination of Lease. If Tenant defaults and Landlord terminates the Lease, Landlord, in its sole and absolute discretion, may bring legal action to recover from Tenant possession of the Premises and:
(A) The worth at the time of judgment or award of the unpaid rent which had been earned at the time of termination;
(B) The worth at the time of judgment or award of the amount by which the unpaid rent which would have been earned after termination until the time of judgment or award exceeds the amount of the rental loss that Landlord proves could have been reasonably avoided; (C) The worth at the time of judgment or award of the amount by which the unpaid rent for the balance of the Term after the time of judgment or award exceeds the amount of the rental loss that Landlord proves could have been reasonably avoided; and (D) Any other amount necessary to compensate Landlord for the detriment proximately caused by Tenant's failure to perform the obligations under this Lease or which in the ordinary course of business would be likely to result therefrom. "Worth at the time of judgment or award" of the amount referred to in Section 13.c(1)(A) and (B) shall be computed by allowing interest at the rate of ten (10%) percent per annum; the "worth at the time of judgment or award" of the amount referred to in section 13.c(1)(C) shall be computed by discounting such amount at the discount rate of the Federal Reserve Board of San Francisco at the time of award plus one (1%) percent.
(2) Continuation of Lease. If Tenant defaults and Landlord elects not to terminate the Lease, Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the Premises to prepare the Premises for reletting to a third party and if Landlord regains possession of the Premises, relet the Premises, or any part of it, to third parties for Tenant’s account. Reletting can be for a period shorter or longer than the Term.

Tenant shall pay to Landlord the Base and Percentage Rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by 335
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14 this Section 13.c(2) shall terminate the Lease unless Landlord notifies Tenant that Landlord elects to terminate the Lease. After Tenant’s default and for so long as Landlord does not terminate Tenant’s right to possession of the Premises, Tenant may assign or sublet its interest in the Lease if Tenant obtains Landlord’s written consent, but Tenant shall not be released from liability for any term, covenant, or condition of the Lease.

If Landlord elects to relet the Premises as provided in this Section 13.c(2), rent that Landlord receives shall be applied to the payment of: first, any indebtedness from Tenant to Landlord other than Base or Percentage Rent due from Tenant; second, all costs, including maintenance costs, incurred by Landlord in reletting; third, Base and Percentage Rent due and unpaid. After deducting the payments referred to in this paragraph, any sum remaining from the rent Landlord receives for reletting shall be held by Landlord and applied in payment of future Base and Percentage Rent as rent becomes due from Tenant. Tenant shall not be entitled to any excess rent received by Landlord. If, on the date Base or Percentage Rent is due under this lease, the rent received from the reletting is less than the Base or Percentage Rent due on that date, Tenant shall pay to Landlord, in addition to the remaining Base or Percentage Rent due, all costs Landlord incurred in reletting, including for maintenance, that remain after applying the rent received from the reletting.
(3) Appointment of Receiver. If Tenant is in default, Landlord shall have the right, in its sole and absolute discretion, to have a receiver appointed to collect rent and conduct Tenant’s business. Neither the filing of a petition for appointment of a receiver nor the appointment itself shall constitute an election by Landlord to terminate this Lease. (4) Landlord’s Right to Cure. At any time after Tenant’s default, Landlord, in its sole and absolute discretion, may cure the default at Tenant’s cost. If Landlord pays any sum or does any act that requires payment of any sum to cure Tenant’s default, the sum paid by Landlord shall be due immediately from Tenant at the time Landlord pays the sum, and if Tenant pays at a later date, the sum shall bear interest at the maximum rate an individual is permitted by law to charge from the date the sum is paid by Landlord until Tenant reimburses Landlord. The sum, together with all interest, shall be added to the installment of Base Rent next becoming due and shall be collectible as additional rent in the same manner and with the same remedies as if it had been originally reserved as Base Rent.
d. Waiver. No delay or failure to exercise any right or remedy of Landlord on any default by Tenant shall impair such a right or remedy or be construed as a waiver. Additionally, the receipt and acceptance of either Base or Percentage Rent by Landlord following a Tenant default shall not be deemed to be a waiver of any preceding violation by Tenant of any term, covenant, or condition of this Lease, other than the failure of Tenant to pay the rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such 336
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15 rent. Any waiver by Landlord of any default must be in writing and shall not be a waiver of any other default concerning the same or any other term, covenant, or condition of this Lease. e. Remedies Cumulative. The remedies provided herein shall be cumulative. The exercise of any one remedy shall not be to the exclusion of any other remedy. f. Remedies Survive Termination. The remedies provided herein shall survive the expiration or termination of the Lease.

14. CONDITION OF PREMISES; SURRENDER
a. Tenant accepts the Premises as being in good and sanitary order, condition, and repair, and agrees to surrender the Premises in as good condition as received, except for normal wear and tear, and to remove Tenant's signs and other property that is not permanently attachment to the Premises, or that is owned and was installed by Tenant during the Terms. b. If upon expiration or termination of any Term Tenant fails to remove any personal property belonging to Tenant from the Premises, such property shall at Landlord’s option at any time after thirty (30) days after the date of expiration or termination be deemed to have been transferred to Landlord, and Landlord shall have the right to remove and dispose of such property without liability to Tenant.

15. ENTRY AND INSPECTION
Landlord and its authorized representatives shall have the right to enter the Premises at all reasonable times to: (1) inspect the Premises and determine whether the Premises is in good condition and whether Tenant is complying with its obligations under this Lease; (2) do any acts that may be necessary to protect Landlord’s interest in the Premises; or (3) perform any of Landlord’s duties under this lease, including making any necessary or agreed on repairs or alterations. Landlord shall have the right to enter and show the Premises to persons considering purchase, rental, or lease of the Premises and to display the usual notices and signs, "For Sale," "For Lease," or "For Let," on the Premises for sixty (60) days prior to the expiration of any Term. Such signs shall be allowed without diminution of rent or hindrance by Tenant. Landlord shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other damage resulting from the entry of the Premises by Landlord or its representatives under this Section 15.

16. PREMISES UNINHABITABLE; REMEDIES
If the Premises is wholly or partially destroyed by fire, earthquake, or any other cause rendering the Premises totally or partially inaccessible or unusable, or if, by any cause (i) the Premises is damaged necessitating an expenditure of more than forty (40%) percent of the fair market value of the Building to repair and restore it, (ii) more than forty percent (40%) of the 337
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16 floor area of the Building, measured in square feet, is destroyed, or (iii) the Premises is rendered uninhabitable, Landlord may, in its sole and absolute discretion, elect to terminate this Lease by giving notice to Tenant within sixty (60) days after the date of the destruction or injury. If Landlord does not terminate the Lease, Tenant’s rent shall be abated from the date of destruction until restoration is completed in an amount proportionate to the extent to which destruction interferes with Tenant’s use of the premises. In no event shall Landlord be under an obligation or duty to restore the Premises.
a. If Landlord elects to restore the Premises, it shall proceed with reasonable diligence, but shall not be liable for any delay, other than an abatement of rent during the time that the Premises remains uninhabitable. The words "restore" and "restoration" shall not include or apply to any FF&E or additions of any kind, or any personal property placed in or upon the Premises by Tenant or anyone acting on Tenant’s behalf. In restoring the Premises, Landlord may use similar and/or changed workmanship and/or architecture. For purposes of this Lease, the Premises shall be deemed "uninhabitable" if it cannot be operated as a restaurant and bar or if any public agency deems the Premises unsafe or unhealthy for human habitation or use as a restaurant and bar.
b. If Landlord does not elect to terminate the Lease and does not commence restoration of the Premises within one hundred twenty (120) days after the date of destruction or damage, Tenant may, in its sole and absolute discretion, terminate this Lease upon written notice to Landlord.

17. EMINENT DOMAIN
a. Total Condemnation. In the event of a total condemnation of the Premises during a Term, this Lease shall terminate as of the date the condemnor takes physical possession of the Premises. All compensation and damages awarded for such total condemnation, including, but not limited to, leasehold bonus value and FF&E, shall belong to, and be the sole property of Landlord, Tenant shall have no claim thereto, and Tenant irrevocably assigns and transfers to Landlord any right to compensation or damages to which Tenant may become entitled; provided, however, that Tenant shall be entitled to receive any award that may be made for the taking of or damage to Tenant's trade fixtures and any improvements made by Tenant to the Premises which Tenant would have had the right to remove upon expiration or termination of this Lease but for the condemnation and for lost goodwill of Tenant’s business. b. Rent Due on Total Condemnation. On termination of this Lease by a total condemnation of the Premises, all Base Rent and other charges payable by Tenant to Landlord under this Lease shall be paid up to the date on which the condemnor takes physical possession of the Premises, all Percentage Rent due for the prior calendar year and the calendar year in which actual physical possession of the Premises is taken shall be due to Landlord within sixty 338
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17 (60) days after physical possession, and the Parties shall thereafter be released from all further liability or obligations under the Lease.
c. Partial Condemnation. In the event of a partial condemnation of the Premises during a Term, this Lease shall terminate as to the portion of the Premises so taken on the date when the condemnor takes physical possession of the portion, and each Party shall have the option to terminate this Lease by giving written notice to the other Party within thirty (30) days after the condemnor takes physical possession of the portion is taken by the condemnor. If neither Party terminates this Lease as herein provided, then this Lease shall continue in full force and effect as to the remainder of the Premises not condemned; provided, however, that the Base Rent payable by Tenant for the balance of the Lease term shall be abated in the ratio that the square footage of enclosed floor space of the Premises bears to the total floor space of the Premises upon such condemnation. Percentage Rent shall not be abated by a partial condemnation of the Premises. Upon partial condemnation, all compensation and damages awarded for such condemnation shall belong to and be the sole property of Landlord, and Tenant shall have no claim thereto and hereby irrevocably assigns and transfers any right Tenant may have had to share in the award to Landlord; provided, however, that Tenant shall be entitled to receive any award made for the taking of, or damage to, Tenants' trade fixtures, any improvements made by Tenant to the Premises which Tenant would have had, but for the condemnation, the right to remove upon expiration or termination of this Lease, and Tenant’s lost business goodwill, but excluding any consideration of leasehold bonus value from the valuation of lost business goodwill.
d. Rent on Partial Condemnation. Upon termination of this Lease in part as provided in Section 17.c, all Base Rent and other charges payable by Tenant to or on behalf of Landlord under the Lease shall be paid up to the date on which the condemnor takes physical possession of that part of the Premises being condemned, and Tenant shall thereafter be liable only for that portion of Base Rent for the part of the Premises remaining for the balance of the Term.

18. SIGNAGE
The Parties shall continue to prominently display existing signs on the Premises identifying the Blackberry Farm Golf Course and signs informing Landlord’s patrons that the Golf Course is "Open to the Public." Tenant shall not install or letter any signs on the Premises without Landlord’s prior written consent. Any additional signs installed by Tenant shall comply with Landlord's sign ordinances and regulations.
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18 19. SECURITY
If any security is given by Tenant to secure the faithful performance of any or all of the covenants of this Lease on the part of Tenant, Landlord may transfer and/or deliver such security to the purchaser of the Premises, in the event that the Premises is sold; and Landlord shall then be discharged from further liability for the security provided by Tenant.

20. LEASE SUBORDINATE
a. This Lease shall be subordinate to any mortgages, trust deeds, or bond indentures that are now or may hereafter be placed on the Premises, to any and all advances made or to be made thereunder, to the interest thereon, and to all renewals, replacements, and extensions thereof, provided that the mortgagee or beneficiary named in the mortgages, trust deeds, or bond indentures agrees to recognize and be subject to Tenant's Lease in the event of foreclosure if Tenant is not in default. If any mortgagee or beneficiary elects to have their mortgage, trust deed, or bond indenture subordinated to this Lease, then this Lease shall be deemed superior to the lien of any such mortgage, trust deed, or bond indenture whether this Lease is dated or recorded before or after said mortgage or trust deed.
b. On not less than ten (10) days prior written request by the Landlord, Tenant shall execute, acknowledge, and deliver to Landlord a written statement certifying that this Lease is unmodified and in full force and effect, or that there have been modifications and this Lease is in full force and effect as modified, and stating the modifications, and the dates to which the rent and other charges have been paid in advance, if any. The intent is that any prospective purchaser, mortgagee, or assignee of any mortgagee of the Premises may rely on the statement.

21. NONDISCRIMINATION
Tenant and its employees shall not discriminate against any person or employee because of race, color, religion, ancestry, age, sex, national origin, disability, sexual preference, housing status, marital status, familial status, or other protected classifications. If Tenant is found to be in violation of the State of California Fair Employment and Housing Act or any similar provision of state or federal law in the conduct of Tenant’s activities under this Lease, it shall be found in default under this Lease and such default shall constitute a material breach of the Lease, entitling Landlord to all available remedies under this Lease or by law.

22. GENERAL PROVISIONS
a. Notices. Any notices to be given by either Party under this Lease shall be made in writing and may be delivered personally, by certified or registered mail with postage prepaid, or email addressed as follows:
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19 TO TENANT: The Blue Pheasant Restaurant c/o Mike Tsachres 22100 Stevens Creek Blvd.

Cupertino, CA 95014
Email:

TO THE LANDLORD: City Manager’s Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Email: [email protected]
b. Entire Agreement. This Lease comprises the entire and integrated agreement of the Parties concerning the lease of the Premises and supersedes all prior negotiations, representations, or agreements, either written or oral. Any amendments to this Lease shall be effective only if in writing and signed by Landlord and Tenant. c. Attorneys' Fees. If legal action is commenced to enforce or to declare the effect of any provision of this Lease, the prevailing party shall be awarded reasonable attorneys' fees and costs incurred by such party in the action.
d. Severability. If any term, provision, covenant, or condition of this Lease is held by a court to be invalid, void, or unenforceable, the rest of this Lease shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. e. Time. Time is of the essence of this Lease.
f. Binding on Heirs; Joint and Several Liability. All terms, covenants, and conditions of this Lease shall apply to and bind the heirs, successors, executors, administrators, and assigns of the Parties.
g. Governing law. The laws of the state of California shall govern this Lease. h. Recordation. Neither Tenant nor Landlord shall record this Lease. i. Authority. The individuals signing this Lease on behalf of the Parties have the authority to sign on behalf of their respective entities. [signatures next page]
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EXHIBIT A
Furniture, Fixtures & Equipment
Front and Back Bar
Built-in Waitress Station in banquet room
Swamp Cooler on roof
Air Conditioning Unit
Furnaces
Built-in Speakers
Water Heaters
Light Fixtures
Safe
Refrigerated Waitress Station in front of kitchen
Hood and Ventilation System (including automatic fire extinguishing system) Steam Table and Built-in Freezer in downstairs banquet room kitchen Walk-in Box with Compressor
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Exhibit B
Depiction of Premises
Premises
Blue Pheasant
Restaurant
Stevens Creek Blvd
Blackberry Farm
Golf Course
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1 EXHIBIT C

GUARANTY AGREEMENT
This guaranty (“Agreement”) is given by Michael Tsachres, an individual (''Guarantor") to CITY OF CUPERTINO ("Obligee") to induce Obligee to enter into a lease (“Lease”) with Hungry Jacks Corporation, a California Corporation (“Obligor”), for the lease of the building and adjoining parking located at 22100 Stevens Creek Boulevard, City of Cupertino, State of California (“Premises”).

1. Obligation Guaranteed. For valuable consideration, the undersigned Guarantor jointly and severally unconditionally guarantees to Obligee the following obligations of Obligor:

Performance of all terms, covenants, and conditions of the Lease and any extension thereof, including the payment of any and all indebtedness of Obligor to Obligee. The word "indebtedness" is used in its most comprehensive sense and includes any and all rent, debts, obligations, and liabilities of Obligor, whenever made, incurred, or created, regardless of whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and whether Obligor may be liable individually or jointly with others, or whether recovery may be or become barred by any statute of limitations or otherwise become unenforceable.

2. Insolvency or Bankruptcy. Guarantor jointly and severally unconditionally guarantees the performance of all terms, covenants, and conditions of the Lease and any and all indebtedness of Obligor to Obligee, whether or not due or payable by Obligor, on (a) the dissolution, insolvency, or business failure of, or any assignment for the benefit of creditors by, or commencement of any bankruptcy, reorganization, arrangement, moratorium, or other debtor relief proceedings by or against, Obligor or Guarantors, or (b) the appointment of a receiver for, or the attachment, restraint of, or making or levying of any court order or legal process affecting, the Premises of Obligor or Guarantors, and jointly and severally unconditionally promise to pay this indebtedness to Obligee or Obligee’s designee, on demand, in lawful money of the United States.

3. Extent of Liability. The liability of Guarantor under this agreement is exclusive and independent of any security for or other guarantee of the indebtedness of Obligor, whether executed by Guarantor or any other party, and the liability of Guarantor under this Agreement is not affected or impaired by any of the following:
a. Any indebtedness exceeding Guarantor’s liability;
b. Any direction of application by Obligor or any other party; 345
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2 c. Any other continuing or other guaranty, undertaking, or maximum liability of Guarantor or of any other party as to the indebtedness of Obligor; d. Any payment on or in reduction of any other guaranty or undertaking; e. Any dissolution, termination, or increase, decrease, or changes of personnel of Guarantor; or
f. Any payment made to the Obligee on the indebtedness that Obligee repays to Obligor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium, or other debtor relief proceeding. Guarantor waives any right to the deferral or modification of Guarantor's obligations by virtue of any such proceeding.

4. Joinder of Parties. The obligations of guarantors are joint and several, and independent of the obligations of Obligor. Obligee may bring and prosecute a separate action or actions against Guarantor, whether it brings an action against Obligor or joins Obligor in any action or actions commenced. Guarantor waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability under this agreement or the enforcement of this agreement. Any payment by Obligor or other circumstance that operates to toll any statute of limitations as to Obligor shall also operate to toll the statute of limitations as to Guarantor. If Guarantor is a married person, Guarantor agrees that recourse may be had against his or her separate property for his or her obligations under this Agreement.

5. Change of Obligation.
a. Guarantor authorizes Obligee, (whether or not after revocation or termination of this Agreement) without notice or demand (except any notice or demand that is required by statute and cannot be waived) and without affecting or impairing their liability, from time to time to do any of the following:
(1) Renew, compromise, extend, accelerate, or otherwise change the time for performance of, or otherwise change the terms of the obligation; (2) Take and hold security for the performance of this Agreement or the obligation guaranteed, and exchange, enforce, waive, and release any security; (3) Apply security and direct the order or manner of sale of security as Obligee in its discretion may determine; and
(4) Release or substitute the Guarantor.
b. Obligee may without notice assign this Agreement in whole or in part. 346
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3 6. Capacity and Authority. If Obligor is a corporation, partnership, or other entity, Obligee need not inquire into or verify the powers of Obligor or the authority of those acting or purporting to act on behalf of Obligor, and this Agreement shall be enforceable with respect to any indebtedness Obligee grants or extends to Obligor in reliance on the purported exercise of those powers or authority.

7. Subordination. Any indebtedness of Obligor now or later held by Guarantor is subordinated to the indebtedness of Obligor to Obligee, and all indebtedness of Obligor to Guarantor, if Obligee so requests, shall be collected, enforced, and received by Guarantor as trustee for Obligee and be paid over to Obligee on account of the indebtedness of Obligor to Obligee, without affecting or impairing in any manner the liability of Guarantor under the other provisions of this Agreement.

8. Waiver of Defenses.
(a) Guarantor waives any right to require Obligee to (1) proceed against Obligor, (2) proceed against or exhaust any security held from Obligor; or (3) pursue any other remedy in Obligee's power.
(b) Guarantor waives any defense based on or arising out of any defense of Obligor other than payment in full of the indebtedness, including without limitation any defense based on or arising out of the disability of Obligor, the unenforceability of the indebtedness from any cause, or the cessation from any cause of the liability of Obligor other than payment in full of the indebtedness.
(c) Obligee, at its election, may foreclose on any security held by Obligee by one or more judicial sales, whether or not every aspect of any sale is commercially reasonable, or exercise any other right or remedy Obligee may have against Obligor, or any security, without affecting or impairing in any way the liability of Guarantor under this agreement, except to the extent that the indebtedness has been paid.
(d) Guarantor waives all rights and defenses arising out of an election of remedies by Obligee, even though that election of remedies, such as nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and reimbursement against the principal by operation of Code of Civil Procedure Section 580d or otherwise.
(e) Until all indebtedness of Obligor to Obligee is paid in full, even though that indebtedness is in excess of Guarantor’s liability under this agreement, Guarantor shall have no right of subrogation, shall waive any right to enforce any remedy that Obligee now has or may later have against Obligor, and shall waive any benefit of, and any right to, participation in any security now or later held by Obligor. Guarantor waives all presentments, demands for 347
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4 performance, notices of protest, notices of dishonor, notices of acceptances of this Agreement, and notices of the existence, creation, or incurring of new or additional indebtedness. (f) Guarantor assumes all responsibility for keeping itself informed of Obligor's financial condition and assets, and all other circumstances bearing on the risk of nonpayment of the indebtedness and the nature, scope, and extent of the risks that Guarantor assumes and incurs under this Agreement, and agrees that Obligee shall have no duty to advise Guarantor of information known to Obligee regarding those circumstances or risks.

9. Attorneys' Fees and Costs. In addition to the amounts guaranteed under this Agreement, Guarantor agrees to pay reasonable attorneys' fees and all other costs and expenses incurred by Obligee in enforcing this Agreement in any action or proceeding arising out of, or relating to, this Agreement.

10. Liens and Setoffs. In addition to all liens on, and rights of setoff against, the money, securities, or other property of Guarantor given to Obligee by law, Obligee shall have a lien on and a right of setoff against all money, securities, and other property of Guarantor now or later in the possession of Obligee, whether held in a general or special account or for safekeeping or otherwise; and every lien and right of setoff may be exercised without demand on or notice to Guarantor.

11. Nonwaiver of Rights of Obligee. No right or power of Obligee under this Agreement shall be deemed to have been waived by any act or conduct on the part of Obligee, or by any neglect to exercise that right or power, or by any delay in so doing; and every right or power shall continue in full force and effect until specifically waived or released by an instrument in writing executed by Obligee.

12. Singular and Plural. In all cases when there is but a single Obligor or a single Guarantor, all words used in the plural shall be deemed to have been used in the singular if the context and construction so require; and when there is more than one Obligor, or when this Agreement is executed by more than one Guarantor, the word "Obligor" and the word "Guarantor" respectively shall mean all and any one or more of them.

13. Effect on Heirs and Assigns. This Agreement and the liability and obligations of Guarantor under this agreement are binding on Guarantor and its respective heirs, executors, and assigns, and inure to the benefit of and are enforceable by Obligor and its successors, transferees, and assigns.

14. Notices. Any notice given by any party under this Agreement shall be personally delivered or sent by United States mail, postage prepaid, and addressed to Obligee or Guarantor at their respective addresses for notices indicated below. Guarantor and Obligee may change the 348
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5 place to which notices, requests, and other communications are to be sent to them by giving written notice of that change to the other.

15. Governing Law and Modification. This Agreement shall be deemed to be made under, and shall be governed by, the laws of the State of California in all respects, including matters of construction, validity, performance, and enforcement, and its terms and provisions may not be waived, altered, modified, or amended except in writing duly signed by an authorized officer of Obligee and by Guarantor.

16. Invalidity. If any provision of this Agreement contravenes or is held invalid under the laws of any jurisdiction, this Agreement shall be construed as though it did not contain that provision, and the rights and liabilities of the parties to this Agreement shall be construed and enforced accordingly.

17. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.

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

IN WITNESS WHEREOF, the undersigned have executed this Guaranty on _______________, 2023.
[signatures on next page]
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CITY OF CUPERTINO
Agenda Item
23-12433 Agenda Date: 11/7/2023
Agenda #: 11.

Subject: Mitigation Fee Act - an Annual & Five-Year Report for Fiscal Year (FY) 2022-2023.

Adopt Resolution No. 23-121 entitled "A Resolution of the City of Cupertino City Council approving the Annual & Five -Year Mitigation Fee Report for Fiscal Year ending June 30, 2023 and making required findings" to:

1. Make the required findings; and

2. Approve the Annual & Five-Year Mitigation Fee Report for the Fiscal Year ending June 30, 2023, as required by Government Code Section 66000 et seq.

CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Mitigation Fee Act – the Annual & Five-Year Report for Fiscal Year (FY) 2022-2023.

Recommended Action
Adopt Resolution No. 23-____ entitled “A Resolution of the City of Cupertino City Council approving the Annual & Five-Year Mitigation Fee Report for Fiscal Year ending June 30, 2023, and making required findings” to:
1) Make the required findings; and
2) Approve the Annual & Five-Year Mitigation Fee Report for the Fiscal Year ending June 30, 2023, as required by Government Code Section 66000 et seq.

Reasons for Recommendation
Background
The Mitigation Fee Act (Government Code Section 66000 et seq.) requires public agencies to account for and make findings when imposing mitigation fees as a condition of development approval. Government Code Section 66006(b) also requires that public agencies annually review and make available to the public a report accounting for mitigation fees held by the agency. Additional reporting is required at least every five years pursuant to Government Code Section 66001(d).

There are several mitigation fees that the City of Cupertino has required as a condition of development approval in lieu of requiring construction of certain public improvements.

These fees are subject to annual and five-year reporting requirements. Mitigation fees are based on a development’s fair share of a larger public improvement project. This reporting does not include fees that are not subject to reporting requirements under Government Code Section 66000 et seq., except for parkland dedication fees that are subject to the Quimby Act and not the Mitigation Fee Act. The City reports on parkland dedication fees to provide further transparency on funds collected.

Pursuant to Section 66006(b), the City is required to make available to the public the following information concerning mitigation fees each fiscal year:
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 A brief description of the type of fee in the account or fund.  Amount of the fee.
 Beginning and ending balances of the account or fund.  The amount of fees collected, and interest earned.
 Identification of each public improvement on which fees were expended and the amount of the expenditures on each improvement, including the total percentage of the cost of the public improvement that was funded with in‐lieu fees.  Identification of an approximate date by which the construction of the public improvement will commence, if the local agency determines that sufficient funds have been collected to complete the public improvement and the public improvement remains incomplete.
 A description of each inter-fund transfer or loan made from the account or fund, including the public improvement on which the transferred or loaned fees will be expended. In the case of an interfund loan, the date on which the loan will be repaid, and the rate of interest that the account or fund will receive on the loan.  The amount of any refunds made pursuant to Government Code section 66001(e) and any allocations made pursuant to Government Code section 66001(f).

Under Section 66001(d), the City also must make certain findings regarding unfinished improvements every five years following the first deposit of mitigation fees into a fund.

The agency must identify the purpose for which the fee was expended and demonstrate a reasonable relationship between the fee and the purpose for which it was used. The agency also must identify all sources and amounts of funding anticipated to complete the financing of incomplete improvements and to designate approximate dates when this funding is expected to be deposited into the account. Fees received through a development agreement are exempt from the five-year report.

FY 2022-23 Report
The attached report includes the annual report for the fiscal year ending June 30, 2023, and a five-year report for all fees. Since the City provided a five-year report last fiscal year, a new five-year report is not required. However, because the five-year report provides additional detail, the City annually provides such data to better inform the public.

The following provides a brief overview of the updates made to this year’s report:
 Interstate 280/Junipero Serra Channel Trail Improvements (renamed to Tamien Innu): The project was removed from this report as all funds were expended in FY 2022-23 and used towards design services for the project.  All projects have been updated to reflect FY 2022-23 information.

Questions from the FY 2022 Report
At the December 20, 2022 meeting, Councilmember Moore had the following questions pertaining to the report and requested a subcommittee to be formed to examine the 353
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matter. In January 2023, all council subcommittees were dissolved, including the mitigation fee act review subcommittee. In an effort to provide follow up responses to Councilmember Moore’s questions, staff included both question and staff’s response (shown in italics) below.
 Why are the master storm drain fees not included in the report? Staff’s response: The master storm drain fee was considered a maintenance fee in prior years. A more recent interpretation by the City Attorney’s office suggested the fee to be included in the report. The master storm drain fees have been included in the FY 2022-23 report, and will be included moving forward, to provide further transparency on funds collected.
 When do other cities take this item to their City Council? Staff’s response: In researching some of the neighboring cities, the following indicates when the city took their FY 2021-22 report to their City Council:
- City of Mountain View: December 6, 2022
- City of Sunnyvale: December 13, 2022
- City of San Jose: December 13, 2022
- City of Saratoga: December 21, 2022
- City of Palo Alto: January 23, 2023
- City of Santa Clara: January 31, 2023
As of October 24, 2023, the cities mentioned above have not yet taken their FY 2022-23 report to their City Council.
 Where do we post the reports online?
Staff’s response: The annual reports, including the FY 2022-23 report, are posted at the link below.
https://www.cupertino.org/our-city/departments/finance/budget-reports  What are the noticing requirements?
Staff’s response: The Mitigation Fee Act stipulates a 15-day public review period for the annual report. The FY 2022-23 annual report was made available to the public on the City’s webpage on October 23, 2023. A public hearing is not required for this item; therefore, no additional noticing in advance of the Council meeting is required.

Sustainability Impact
No sustainability impact.

Fiscal Impact
Not applicable. Accepting the Annual and Five-Year Reports does not have any impact to the city’s budget.

California Environmental Quality Act
Not applicable.
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_____________________________________
Prepared by: Jennifer Chu, Senior Civil Engineer
Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Annual & Five-Year Report for FY 2023
B – Draft Resolution
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Attachment A
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394\01\1992522.1
City of Cupertino
AB 1600 ‐ Mitigation Fee Act
Annual & Five Year Report for the fiscal year ending June 30, 2023 Dept.: Community Development
Project: Below Market Rate (BMR) Housing Mitigation Fee Local Authority:

Information on the City’s BMR Housing Mitigation Fee is provided as a courtesy. The City of Cupertino has collected BMR mitigation fees from commercial and residential developments since 1992 based on nexus studies conducted at that time. On May 5, 2015, the City Council adopted Resolution 15-036, accepting three reports from Keyser Marston Associates, Inc. (KMA) – Summary and Recommendations BMR Housing Mitigation Program, Non-Residential JobsHousing Nexus Analysis, and Residential BMR Housing Nexus Analysis – which collectively form the City’s Nexus Study justifying the current residential and non-residential Housing Mitigation Fees. Per Resolution 17-052, the City Council adopted the updated BMR residential and non-residential (office, research and development, industrial, hotel, retail and commercial) Housing Mitigation Fees. On May 19, 2020, the City Council adopted Resolution 20-056, which increased the Housing Mitigation Fees for hotels and for offices to levels lower than the maximum amount needed to fully mitigate the burdens created by new development on the need for affordable housing as determined in the KMA Reports, based in part on an Economic Feasibility Analysis prepared by Strategic Economics concluding that increased fees would be feasible. On April 21, 2020, the City Council adopted Resolution 20-037, amending the BMR Housing Mitigation Fees to adopt fee categories and amounts for self-storage and warehouse uses based in part on a report from KMA dated January 2020 and entitled “Supplement to the NonResidential Jobs-Housing Nexus Study” evaluating the impact of self-storage and warehouse land uses on demand for affordable housing in the City and determining the maximum amount of a fee needed to fully mitigate the burdens on affordable housing created by these types of development.

The fiscal year 2022-23 BMR Housing Mitigation Fee amounts are being reported below.

Five Year Reporting & Findings Requirement:

1. The purpose of the BMR Housing Mitigation Fee is to help mitigate the need for affordable housing as a result of new residential and non-residential development within the City of Cupertino. The requirements for applicability to the BMR Housing Mitigation Fees are set forth in the City’s adopted BMR Housing Mitigation Program Procedural Manual. The BMR Housing Mitigation Fee schedule is as follows:

Residential (per sq. ft.) -
Detached Single FamilyResidence $20.29
Small Lot Single Family Residence or Townhome $22.31
Multi-Family Attached Townhome or Condo $27.05
Multi-Family Rental Apartment (1 to 35 du/ac) $27.05
Multi-Family Rental Apartment (over 35 du/ac) $33.81
Non-Residential (Per sq.ft.) –
Office, Research & Development, or Industrial $32.06
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Attachment A
Page | 2
Hotel $16.03
Self-Storage, employee unit provided $0.60
Self-Storage, employee unit not provided $1.26
Warehouse $44.53
Commercial or Retail $13.52
BMR Housing Mitigation Fees were used to fund staff and administrative time, legal and professional services, BMR housing placement services, rental mediation, contract services, housing and homelessness strategies, and Habitat for Humanity.

The fees in the BMR Fund include funds paid to the City as conditions of development agreements. When applicable, these fees are included in the tables below; however, there is no requirement to prepare a five-year report regarding fees obtained through a development agreement.

2. A reasonable relationship exists between the BMR Housing Mitigation Fee and the purpose for which the fee was charged. The need for the BMR Housing Mitigation fees, as they were identified when the fee was enacted, remains. See, Strategic Economics December 16, 2019 Economic Feasibility Study of Inclusionary Requirements.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost*
Fund
Balance
6/30/2023
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
Below
Market Rate
Housing
Mitigation
fee
$160,300,000 $4,945,424 100% Additional
Developer
Contributions
State and
Federal tax
credits, loans
and grants
As projects
develop/
redevelop
Ongoing Ongoing
* Based on RHNA allocation and affordability gaps estimated in the nexus study: Very-low income units (356) x $241,000/unit = $87.8 million. Low income units (207) x $213,000/unit = $44.1 million. Moderate income units (231) x $123,000/unit = $28.4 million. Total = $160.3 million. 357
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Attachment A
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394\01\1992522.1
Annual Report
Amount of Fee: Based on adopted Fee Schedule
FY2022-23
Trust
Fund
Activity
Fiscal Year Purpose of Expenditure
Balance at
7/1/2022
$5,462,532
Fees
Collected*
$172,698
Interest $79,323
Expended
Subtotal
($378,741)
($57,476)
($265,554)
($50,000)
($13,787)
($3,571)
($769,129)
Staff and administration
Legal and professional services
Housing placement services
Rental mediation services/contract services
Homelessness
Habitat for Humanity
Refunded 0
Unrestricted
balance at
6/30/2023
$4,945,424
*- Includes funds collected by Development Agreement
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Attachment A
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Dept.: Public Works
Project: Park Dedication In-Lieu Fee
Local Authority:

City of Cupertino: Municipal Code, Chapter 13.08
Five Year Reporting & Findings Requirement:

1. The purpose of the Park Dedication Fee is to help mitigate the need for additional outdoor recreational area for new residential development within the City of Cupertino. The requirements for applicability to the Park Dedication Fees are set forth in the City’s Municipal Code, Chapter

13.08, and the fee was adopted under the provisions of the Mitigation Fee Act. The Parkland Dedication Fee is based on the fair market value of land within the City of Cupertino. Land values are appraised bi-annually, and the Park Dedication Fees are updated accordingly. Park Dedication Fees are used to fund parkland acquisitions and improvements to park and recreational facilities.

The fees in the Park Dedication table below include funds paid to the City as a condition of development agreements. Although these fees are included in the tables below, there is no requirement to prepare a five-year report regarding fees obtained through a development agreement. In addition, this table includes adopted fees imposed as a condition of development.

2. A reasonable relationship exists between the Park Dedication Fee and the purpose for which the fee is charged, as additional parkland and facilities are needed to offset the increase in population that additional residential units impact. The need for the Park Dedication fees, as they were identified when the fee was enacted, remains, as the City’s current park area per resident does not yet meet the park acreage standard in the Park Dedication Fee.

3. The sources and amounts of funding anticipated to complete the financing of the Park Dedication are identified below:
 Developer Fair-Share Contributions from all projects that add residences.

4. The approximate dates on which the funding for the needed park acquisition and improvements is expected to be deposited into the appropriate account are identified in the Five-Year Report on the next page.

Five-Year Report
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Attachment A
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394\01\1992522.1
Incomplete Project that Was Identified When Imposing the Fee:

Project
Description
Total
Estimated
Cost
Fund
Balance
6/30/2023
%
Expected
to be
Funded
by Fees
Sources and
Amounts of
Funding
Anticipated
to Complete
the Project
Estimated
Date for
Funding to
be
Deposited
in Fund
Estimated
Beginning
Date
Estimated
Completion
Date
LawrenceMitty Park$8,270,994 $7,984,137 100% Project is fully funded
Winter 2020 Spring
2015
Summer 2025
Annual Report
Amount of Fee: Based on Fair-Market Value of land, through land appraisal FY2022-23
Trust Fund
Activity Fiscal Year Purpose of Expenditure
Balance at
7/1/2022***
$5,401,272
Fees
Collected*
$646,767
Interest $286,098
Expended see
reservations
below
Returned** $1,150,000
$500,000
Memorial Park Amphitheater
Memorial Park Specific Plan
Reserved
Subtotal
($8,270,994)
($3,000,000)
($11,270,994)
Reserved for purchase and construction of
Lawrence-Mitty Park
Reserved for Memorial Park Pond Repurposing
Balance at
6/30/2023***
$7,984,137
*- Includes funds collected by Development Agreement and other developments **- Unused project funds returned to parkland in-lieu fee account ***- Balance reflects the unreserved funds
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Attachment A
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Dept.: Public Works
Project: Transportation Impact Fee
Local Authority:

City of Cupertino: Municipal Code, Chapter 14.02
Five Year Reporting & Findings Requirement:

1. The purpose of the Transportation Impact Fee is to help mitigate the impact to the City’s existing transportation infrastructure due to new development, additions to existing structures or changes in use within the City of Cupertino. The requirements for applicability to the Transportation Impacts Fees are set forth in the City’s Municipal Code, Chapter 14.02, and the fee was adopted under the provisions of the Mitigation Fee Act. The Transportation Impact Fee is based on the Transportation Impact Fee Nexus Study. Transportation Impact Fees are used to fund capital improvements to the City’s transportation infrastructure.

2. A reasonable relationship exists between the Transportation Impact Fee and the purpose for which the fee is charged, as additional transportation infrastructure is needed to offset the increased demand that new development, additions to existing structures and changes in use create on the roadway network. The need for the Traffic Impact fees, as identified in the Nexus Study remain, as the infrastructure improvements have not yet been constructed.

3. The sources and amounts of funding anticipated to complete the financing of the Transportation Impact Fee are identified below:
 Developer Fair-Share Contributions from all projects that create new vehicle trips.

4. The approximate dates, on which the funding for the needed transportation impact improvements is expected to be deposited, are identified in the Five-Year Report on the next page. 361
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Attachment A
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394\01\1992522.1
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

The City of Cupertino has collected master storm drain fees from developments since 1962 based on nexus studies conducted at that time – the 1961 Master Storm Drainage Plan and Cost Study, the 1974 Revised Master Plan and the 1993 Storm Drainage System Master Plan, all prepared by Mark Thomas. On July 16, 1962, the City Council adopted Resolution No. 633, approving the Storm Drainage Fee Policy that set forth the fee structure for the Master Storm Drain Fee for residential (single family and multi-family) and non-residential (commercial and industrial) uses.

On March 21, 1977, the City Council adopted Resolution No. 4422, amending the fee structure to include and better define various uses – low-density residential (less than 1 du/ac), single-family residential (1 du/ac and less than 5.2 du/ac), multi-family residential (greater than 5.2 du/ac) as well as include public educational use and public facility use in the non-residential category.

On January 15, 2019, City Council adopted Resolution No. 19-011 accepting the 2018 City of Cupertino Storm Drain Master Plan prepared by Schaff & Wheeler, which updates the 1993 Storm Drainage System Master Plan by taking into account improvements made to the system since acceptance of the 1993 plan, incorporating more advanced software in the preparation of the hydraulic models, and describing and prioritizing capital improvement projects necessary to maintain and improve the storm drain collection system operated by the City in a manner consistent with industry standards.

Five Year Reporting & Findings Requirement:

1. The purpose of the Master Storm Drain Fee is to help maintain and mitigate impacts to the City’s existing storm drain infrastructure. The requirements for applicability to the Master Storm Drain Fees are set forth by the City Council adoption of Resolution No. 633 and 4422, and the fee was adopted under the provisions of the Mitigation Fee Act. The Master Storm Drain Fee is based on nexus studies from the 1961 Master Storm Drainage Plan and Cost Study, the 1974 Revised Master Plan and the 1993 Storm Drainage System Master Plan. Master Storm Drain Fees are used to fund maintenance and capital improvements to the City’s storm drain infrastructure.

2. A reasonable relationship exists between the Master Storm Drain Fee and the purpose for which the fee is charged as the storm drain system requires ongoing maintenance due to drainage from development projects and storm drain improvements are needed to address increased demand from new developments. The need for the Master Storm Drain fees, as identified in the Storm Drain Master Plan remain, as maintenance and infrastructure improvements are necessary.

3. The sources and amounts of funding anticipated to complete the financing of the Master Storm Drain Fee are identified below:
 Developer Fair-Share Contributions from all projects that propose new developments.

4. The approximate dates, on which the funding for the needed storm drain improvements is expected to be deposited, are identified in the Five-Year Report on the next page. 363
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Attachment A
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394\01\1992522.1
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Moderate priority capital improvements = $25.88 million. Low priority capital improvements = $40.88. Total = $79.28 million.

Annual Report
Amount of Fee: Based on Storm Drain Master Plan
FY2022-23
Trust
Fund
Activity
Fiscal Year Purpose of Expenditure
Balance at
7/1/2022
$1,787,537
Fees
Collected
$73,912
Interest $26,712
Expended
Subtotal
0 0
Refunded 0
Balance at
6/30/2023
$1,888,161
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Attachment A
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Dept.: Public Works
Project: N. Stelling/I-280 Bridge Pedestrian Lighting & Upgrades Local Authority:

EXC-2007-06: Condition of Approval No. 21
TM-2007-02: Condition of Approval No. 24
Five Year Reporting & Findings Requirement:

1. The purpose of the N. Stelling/I-280 Bridge Pedestrian Lighting & Upgrades fee is to enhance the pedestrian walkway along the east and west side of the North Stelling Road bridge that crosses over Interstate 280. Public facilities to be funded with the fees were described in:
a. Villa Serra Apartments: ASA-2007-03: Condition of Approval No. 21, dated July 13, 2007 for Architectural Site Approval ($25,000 collected) b. Las Palmas Subdivision: TM-2007-02: Condition of Approval No. 24, dated July 18, 2007 for Tentative Map Application ($25,000 collected)

2. A reasonable relationship exists between the North Stelling fee and the purpose for which the fee was charged in that new development in the vicinity of the bridge increases pedestrian traffic across the bridge. The need for improvements to the bridge, that were identified during the review of the two projects, remains, as the bridge experiences increased pedestrian traffic due to the two projects.

3. The sources and amounts of funding anticipated to complete the financing of the bridge improvements are identified below:
 It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.

4. The approximate dates on which the funding for the bridge improvements is expected to be deposited into the appropriate account are identified in the Five-Year Report below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

FY 2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$52,744 Amount $ -
Fees Collected 0 $ 50,000 Repayment Date
(est.)
na
Interest $686 $6,980
Expended 0 ($3,550)
Refunded 0 0
Balance at
6/30/2023
$53,430 $53,430
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Attachment A
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Dept.: Public Works
Project: De Anza/McClellan/Pacifica signal modification Local Authority:

TM-2002-02: Condition of Approval No. 23
Five Year Reporting & Findings Requirement:

1. The purpose of the De Anza/McClellan/Pacifica signal modification is to study and redesign the traffic signal to improve the efficiency of the intersection. Public facilities to be funded with the fees were described in:
a. Cupertino Town Square: TM-2002-02: Condition of Approval No. 2, dated July 15, 2003 for Tentative Map application ($145,700 collected)

2. A reasonable relationship exists between the De Anza/McClellan/Pacifica signal modification contribution and the purpose for which the fee was charged, in that the new development introduces additional vehicular and pedestrian traffic to the intersection. The need for improvements to the intersection and the traffic signal, as they were identified during the review of the project, remains. The intersection continues to run less efficiently than other intersections in the area.

3. The sources and amounts of funding anticipated to complete financing of the intersection improvements are identified below:
 Developer Fair-Share Contributions from other projects that contribute traffic to the intersection.
 It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.
 Vehicle Emissions Reductions Based at Schools (VERBS) Grant funding.

4. The approximate dates on which the funding for the signal modification improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Summer/
2019
Spring
2021
Winter 2023
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Attachment A
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394\01\1992522.1
Annual Report
Amount of Fee: 12.5% Contribution to the total cost based on estimated contribution of four projects.

FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$62,841 Amount $ -
Fees Collected 0 $ 145,700 Repayment Date
(est.)
na
Interest $817 $24,068
Expended ($35,336) Design
Services
($141,446)
Refunded 0 0
Balance at
6/30/2023
$28,322 $28,322
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Attachment A
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Dept.: Public Works
Project: Stevens Creek Blvd. and Bandley Drive Signal Improvements Local Authority:

ASA-2011-12: Condition of Approval No. 43
Five Year Reporting & Findings Requirement:

1. The purpose of the Stevens Creek Blvd and Bandley Drive Traffic Signal Improvement fee is to partially fund upgrades to the traffic signal in order to improve the efficiency of the intersection.

Public facilities to be funded with the fees were described in:
a. Cupertino Crossroads: ASA-2011-12: Condition of Approval No. 43 dated November 17, 2011 for Architectural Site Approval ($25,000 collected)

2. A reasonable relationship exists between the Stevens Creek Blvd. and Bandley Drive Signal Improvements fee and the purpose for which the fee was charged, in that the new development has a driveway that connects directly to the signalized intersection and the development will introduce additional vehicular and pedestrian traffic to the intersection. The need for the improvements to the intersection, which were identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete financing of the signal upgrades improvements are identified below:
 Developer Fair-Share Contributions from other projects in the vicinity of the intersection.  It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.

4. The approximate dates on which the funding for the signal improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Funding
has been
provided.

Summer/
2019
Spring/2020 Summer/2025
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Attachment A
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Annual Report
Amount of Fee: Contribution from expected nearby developments, based on estimated addition of traffic to intersection.

FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$13,701 Amount $ -
Fees Collected 0 $ 25,000 Repayment Date
(est.)
na
Interest $178 $2,005
Expended 0 Kimley Horn
Contract
($13,126)
Refunded 0 0
Balance at
6/30/2023
$13,879 $ 13,879
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Attachment A
Page | 16
Dept.: Public Works
Project: Traffic Mitigation at Homestead Rd and Lawrence Expressway Local Authority:

TM-2012-04: Condition of Approval No. 87
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Traffic Mitigation at Homestead Rd and Lawrence Expressway fee is to fund improvements to the intersection in order to address traffic impacts from the project. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino: TM-2012-04: Condition of Approval No. 87, dated September 20, 2012 for Tentative Map application ($400,000 collected)

2. A reasonable relationship exists between the Traffic Mitigation at Homestead Rd and Lawrence Expressway fee and the purpose for which the fee was charged, in that the development, in the vicinity of the intersection, introduces additional traffic to the intersection. The County of Santa Clara has estimated a cost to upgrade the intersection, and the Environmental Impact Report assessed a fair share contribution from the project to address its portion of the impact. The need for improvements to the intersection, as they were identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete financing of the intersection improvements are to be identified by the County of Santa Clara.

4. The approximate dates on which the funding for the intersection improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Anticipated
Summer/
2025
Fall/2026 Summer/2027
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Attachment A
Page | 17
Annual Report
Amount of Fee: Based on Fair-Share Contribution assessed by Environmental Impact Report FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$435,169 Amount $ -
Fees Collected 0 $400,000 Repayment Date
(est.)
na
Interest $5,658 $40,827
Expended 0 0
Refunded 0 0
Balance at
6/30/2023
$440,827 $440,827
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Attachment A
Page | 18
Dept.: Public Works
Project: Traffic Calming to Mitigate Impacts from Main Street Cupertino Local Authority:

TM-2012-04: Condition of Approval No. 93
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Traffic Calming to Mitigate Impacts from Main Street Cupertino fee is to help mitigate traffic impacts in the adjacent neighborhoods resulting from the project, for a period of 5 years following project occupancy. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino TM-2012-04: Condition of Approval No. 93 dated 9/20/2012 for Tentative Map application ($100,000 collected).

2. A reasonable relationship exists between the Traffic Calming fee and the purpose for which the fee was charged, in that the development introduces additional traffic to the surrounding neighborhoods. The City will utilize the funds as needed to address traffic impacts to the surrounding neighborhoods, for a period of 5-years after occupancy.

3. The sources and amounts of funding anticipated to complete financing of the traffic calming mitigations were collected with the project ($100,000).

4. The approximate dates on which the funding for the improvements is expected to be deposited into the appropriate account are identified below.

5. The initial deposit was collected upon project occupancy in June 2018 and the funds have been allocated to the Stevens Creek Blvd Class IV Bikeway project with expenditures expected to be registered during FY23-24.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Development
Project
completed
June 2018
Summer
2020
Fall 2023
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Attachment A
Page | 19
Annual Report
Amount of Fee: Estimated Full Cost of the Study and potential improvements.

FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$108,793 Amount $ -
Fees Collected 0 $100,000 Repayment Date
(est.)
na
Interest $1,414 $10,207
Expended 0 0
Refunded 0 0
Balance at
6/30/2023
$110,207 $110,207
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Attachment A
Page | 20
Dept.: Public Works
Project: Creek Trail Improvements along Calabazas Creek Local Authority:

TM-2012-04: Condition of Approval No. 47
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Creek Trail Improvements along Calabazas Creek contribution is to administer a creek trail plan, the necessary approvals and improvements for a new trail along Calabazas Creek from Vallco Parkway to Interstate 280. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino: TM-2012-04: Condition of Approval No. 47 dated September 20, 2012 for Tentative Map application ($65,000 collected)

2. A reasonable relationship exists between the Creek Trail Improvements along Calabazas Creek Fee and the purpose for which the fee was charged in that development in the vicinity of the proposed creek trail introduces additional pedestrian traffic to the area, causing the need to provide additional and alternative means of pedestrian access and recreation to new residents and visitors to the development. The need for a new creek trail, as it was identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete financing of the project are identified below:
 Developer Fair-Share Contributions from other projects in the vicinity of the proposed creek trail location

4. The approximate dates on which the funding for the trail improvements is expected to be deposited into the appropriate account are identified in the Five-Year Report on the next page. 375
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Attachment A
Page | 21
Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Anticipated
Summer/2022
Spring/2023 Fall/2024
Annual Report
Amount of Fee: Contribution equivalent to 1/3 of the estimated cost of creek trail plan FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$ 70,716 Amount $ -
Fees Collected 0 $ 65,000 Repayment Date
(est.)
na
Interest $920 $6,636
Expended 0 0
Refunded 0 0
Balance at
6/30/2023
$71,636 $71,636
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Attachment A
Page | 22
Dept.: Public Works
Project: Parking Conversion Fund along Vallco Parkway
Local Authority:

TM-2012-04: Condition of Approval No. 67
Five Year Reporting & Findings Requirement:

1. The purpose of the Parking Conversion Fund along Vallco Parkway is to enable the City to convert the angled parking spaces along the south side of Vallco Parkway to parallel parking spaces and an additional east-bound traffic lane. Public facilities to be funded with the fees were described in:
a. Main Street Cupertino: TM-2012-04: Condition of Approval No. 67 dated 9/20/2012 for Tentative Map application ($450,000 collected)

2. A reasonable relationship exists between the Parking Conversion Fund along Vallco Parkway and the purpose for which the fund was collected in that new development is adjacent to this section of Vallco Parkway, and the development added angled parking along Vallco Parkway to serve the development which reduced the number of east-bound lanes as part of their project. The Fund will permit the City to reestablish the east-bound lane that was lost, due to the development, should it be found that the additional lane is necessary to serve the public. The fund is based on the estimated cost to perform the work. The need for the funds, that were identified when the funds was imposed, remain, as the surrounding area is currently planned to further develop.

3. The sources and amounts of funding anticipated to complete financing of the conversion were collected with the project ($450,000).

4. The approximate dates on which the funding for the conversion is expected to be deposited into the appropriate account are identified below.

5. The initial deposit was collected upon project occupancy in June 2018 and is expected to be utilized at the City’s discretion to remove angled parking and/or add an additional vehicle lane along Vallco Parkway. The City plans to continue evaluation Vallco Parkway layout for traffic concerns by June 2028.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Fees have
been collected.

Development
Project
completed
June 2018
June 2018 June 2028
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Attachment A
Page | 23
Annual Report
Amount of Fee: Estimated Full Cost of the potential improvements.

FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$489,566 Amount $ -
Fees Collected 0 $450,000 Repayment Date
(est.)
na
Interest $6,364 $45,930
Expended 0 0
Refunded 0 0
Balance at
6/30/2023
$495,930 $495,930
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Attachment A
Page | 24
Dept.: Public Works
Project: Funding of Neighborhood Cut-through Traffic and Parking Intrusion Monitoring Local Authority:

TM-2011-03: Condition of Approval No. 49
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Funding of Neighborhood Cut-through Traffic and Parking Intrusion Monitoring Fee is to monitor and address traffic and parking intrusion, in neighborhoods adjacent to the project site, due to the practices of employees who will work at the project site. Public facilities to be funded with the fees were described in:
a. Apple Campus 2: Ordinance 13-2114: Resolution Approving Apple Campus 2 Development Agreement – Section 3.13 and TM 2011-03: Condition of Approval No. 49 dated 10/15/2013 for Tentative Map Application ($850,000 collected)

2. A reasonable relationship exists between the Funding of Neighborhood Cut-through Traffic and Parking Intrusion Monitoring fee and the purpose for which the fee was charged in that the traffic from the development, for which the fee is to be used to monitor, has not yet materialized because the development has not been fully constructed or occupied. The City will begin monitoring activities in the fall of 2017. The $850,000 fee was based on an estimate of the cost to perform the monitoring and make minor modifications to address traffic and parking intrusion concerns.

The need for traffic and parking intrusion monitoring, as it was identified during the review of the project, remains. The traffic, for which the fees are to be used to monitor, has not yet materialized.

3. The sources and amounts of funding anticipated to complete monitoring and improvements were collected with the project ($850,000).

4. The approximate dates on which the funding for the monitoring is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Fall/ 2017 Summer/2017 Winter/2026
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Attachment A
Page | 25
Annual Report
Amount of Fee: Estimated Full Cost of the Study and potential improvements.

FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$881,397 Amount $ -
Fees Collected 0 $850,000 Repayment Date
(est.)
na
Interest $11,458 $84,333
Expended 0 IDAX &
Stantec
Consulting
Contracts
($41,478)
Refunded 0 0
Balance at
6/30/2023
$892,855 $892,855
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Attachment A
Page | 26
Dept.: Public Works
Project: Implement a Traffic-Adaptive Traffic Signal System along De Anza Blvd Local Authority:

TM-2011-03: MitigationTRANS-13c
Five Year Reporting & Findings Requirement: Provided for information only. Five years have not elapsed since initial deposit.

1. The purpose of the Traffic-Adaptive Traffic Signal System along De Anza Blvd fee is to implement traffic-adaptive technology to the traffic signals along DeAnza Blvd within the jurisdiction of the City of Cupertino. Public facilities to be funded with the fees were described in:
a. Apple Campus 2: Ordinance 13-2114: Resolution Approving Apple Campus 2 Development Agreement – Section 3.13 and TM-2011-03: Mitigation TRANS-13c, dated 10/15/2013 for Tentative Map application ($50,000 collected)

2. A reasonable relationship exists between the traffic-adaptive traffic signal system along De Anza Blvd fee and the purpose for which the fee was charged in that new development will introduce additional traffic to DeAnza Boulevard, and more efficient traffic signal timing will be needed to address the additional traffic. The fee was based on a fair-share contribution of the estimated total cost to install the traffic-adaptive technology. The need for traffic-adaptive technology, as it was identified during the review of the project, remains.

3. The sources and amounts of funding anticipated to complete the traffic-adaptive technology upgrades will be provided through fair-share contributions from other developers that impact the corridor.

4. The approximate dates on which the funding for the traffic adaptive technology is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Anticipated
Summer/2020
Fall/2019 Summer
2025
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Attachment A
Page | 27
Annual Report
Amount of Fee: Based on Fair-Share Contribution assessed by engineer’s cost estimate FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$54,396 Amount $ -
Fees Collected 0 $ 50,000 Repayment Date
(est.)
na
Interest $707 $5,103
Expended 0 0
Refunded 0 0
Balance at
6/30/2023
$55,103 $55,103
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Attachment A
Page | 28
Dept.: Public Works
Project: Contribution towards Stevens Creek Blvd. Bicycle Lane Improvements Local Authority:

ASA-2018-01: Condition of Approval No. 43
Five Year Reporting & Findings Requirement:

5. The purpose of the Stevens Creek Blvd. Bicycle Lane Improvement fee is to partially fund upgrades to the bicycle lanes on Stevens Creek Blvd in order to improve the enhance the safety of the bicycle lanes. Public facilities to be funded with the fees were described in:
a. Target Improvements: ASA-2018-01: Condition of Approval No. 22 dated August 14, 2018 for Architectural Site Approval ($75,000 collected)

6. A reasonable relationship exists between the Stevens Creek Blvd. Bicycle Lane Improvements fee and the purpose for which the fee was charged, in that the new development abuts Stevens Creek Blvd., and will introduce additional traffic to the area. The need for the improvements to the bicycle lanes, which were identified during the review of the project, remains.

7. The sources and amounts of funding anticipated to complete financing of the signal upgrades improvements are identified below:
 Developer Fair-Share Contributions from other projects along Stevens Creek Blvd.  It is anticipated that the City of Cupertino General Fund will be used to supplement revenue from fees.

8. The approximate dates on which the funding for the signal improvements is expected to be deposited into the appropriate account are identified below.

Five-Year Report
Incomplete Project that Was Identified When Imposing the Fee:

Winter/
2021
Spring/2021 Summer/2024
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Attachment A
Page | 29
Annual Report
Amount of Fee: Contribution from developments, based on estimated costs to construct facilities along property frontages.

FY2022-23
Trust Fund
Activity
Fiscal
Year
Purpose of
Expenditure
Inception
To Date Loans/Transfers
Balance at
7/1/2022
$78,921 Amount $ -
Fees Collected 0 $ 75,000 Repayment Date
(est.)
na
Interest $1,026 $4,947
Expended 0 0
Refunded 0 0
Balance at
6/30/2023
$79,947 $79,947
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Attachment B
RESOLUTION NO. 23-____

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING THE ANNUAL & FIVE-YEAR MITIGATION FEE REPORT
FOR FISCAL YEAR ENDING JUNE 30, 2023 AND MAKING REQUIRED

FINDINGS
WHEREAS, the Mitigation Fee Act (Government Code Section 66000 et seq.) requires that an annual report regarding mitigation fees be submitted to the City Council at a regularly scheduled public meeting pursuant to Section 66006; and
WHEREAS, Government Code Section 66001(d) further provides that the City must, on a five-year basis, make certain findings with respect to unexpended mitigation fees; and
WHEREAS, the City of Cupertino - AB 1600 ‐ Mitigation Fee Act Annual & Five-Year Report for the fiscal year that ending June 30, 2023 (the “Annual and Five-Year Report”), comprises the annual report required under Government Code Section 66006(b) and five-year report required under Government Code Section 66001(d) of the Mitigation Fee Act. Said report is included as Attachment A and incorporated into this Resolution by this reference.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby:

1. Acknowledges the foregoing recitals are true and correct and incorporated into this resolution by this reference.

2. Approves the Annual and Five-Year Report for FY ending June 30, 2023 in accordance with the Mitigation Fee Act and incorporates by reference said Report (Attachment A).

3. Adopts the findings required by Government Code 66001(d) as stated in the Five-Year Reporting and Findings Requirement section of the Annual and Five-Year Report (Attachment A), which demonstrate that, for each account or fund:
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Resolution No. 23-____

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a. The purpose of each fund is described in the Annual and Five-Year Report.
b. A reasonable relationship exists between the fee charged to development projects and the purpose for which it is charged, based on the substantial evidence contained in the Annual and Five-Year Report.
c. For each fund, the Annual and Five-Year Report identifies all sources and amounts of funding anticipated to complete the financing of incomplete improvements.
d. For each fund, the Annual and Five-Year Report designates the approximate date on which the funding needed is expected to be deposited into the fund.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7
th day of November, 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
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CITY OF CUPERTINO
Agenda Item
23-12584 Agenda Date: 11/7/2023
Agenda #: 12.

Subject: Minor Amendments to Cupertino Municipal Code Chapter 1.18 (Claims Against the City), Chapter

9.15 ( Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware), 9.18 (Stormwater Pollution Prevention and Watershed Protection), Chapter 15.04 (Waterworks System-Rates and Charges), and Chapter

16.72 (Recycling and Diversion of Construction and Demolition Waste).

Conduct the first reading of Ordinance No. 23-2252: “An Ordinance of the City Council of the City of Cupertino Amending City Code Chapters 1.18, 9.15, 9.18, 15.04, and 16.72.” Presenter: Christopher Jensen, City Attorney
CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Minor Amendments to Cupertino Municipal Code Chapter 1.18 (Claims Against the City), Chapter 9.15 ( Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware), 9.18 (Stormwater Pollution Prevention and Watershed Protection), Chapter 15.04 (Waterworks System—Rates and Charges), and Chapter 16.72 (Recycling and Diversion of Construction and Demolition Waste).

Recommended Action
Conduct the first reading of Ordinance No. 23‐____: “An Ordinance of the City Council of the City of Cupertino Amending City Code Chapters 1.18, 9.15, 9.18, 15.04, and 16.72.” Reasons for Recommendation
The City periodically adopts minor amendments to the Cupertino Municipal Code to reflect changes in law, provide clarification to the community, and provide for improved administration of City business. Attachments A and B present proposed minor amendments to the Municipal Code. The following changes to the Cupertino Municipal Code are recommended:
 Section 1.18.020: Language is proposed to allow for the electronic submission of claims against the City.
 Chapter 9.14: Language is proposed to make minor clerical corrections to language in the recently adopted Ordinance No. 22‐2239, regarding single‐use food service ware.
 Section 9.18.215: The proposed revision would clarify the placement of uncontained large items for trash collection.
 Section 15.04.010: Language is proposed in anticipation of the City’s release of a request for proposal for the lease of the City water system.  Section 16.72.050: Minor changes in capitalization are proposed to reflect the intent of the ordinance.
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Staff recommends that Council introduce Ordinance No. 23‐___ and conduct a first reading of the Ordinance. If Council votes to conduct the first reading, the Ordinance will return to Council for the second reading at its November 21 meeting.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Christopher D. Jensen, City Attorney Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Ordinance No. 23‐______
B – Redline of proposed Municipal Code amendments
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1 ORDINANCE NO. __________________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CITY CODE CHAPTERS 1.18, 9.15, 9.18, 15.04, AND 16.72 WHEREAS, the City Code of the City of Cupertino requires periodic updates in order to improve City operations and bring the Code up to date with current law and policy; and WHEREAS, this Ordinance makes minor revisions to the Cupertino Municipal Code to reflect changes in law, provide clarification to the community, and provide for improved customer service and administration of City business.

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. 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: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.
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Ordinance No. __________

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SECTION 4: 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 November 7, 2023 and ENACTED at a regular meeting of the Cupertino City Council on November 21, 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 – Page 1
Attachment A – An Ordinance of the City Council of the City of Cupertino Amending City Code Chapters 1.18, 9.15, 9.18, 15.04, and 16.72
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. Amendments to Chapter 1.18 (Claims Against the City)

1.18.020 Form of claim.

All claims shall be made in writing and verified by the claimant or by his or her guardian, conservator, executor or administrator. No claim may be filed on behalf of a class of persons unless verified by every member of that class as required by this section. In addition, all claims shall contain the information required by California Government Code Section 910. A claim may be submitted to the City electronically via the City’s website on a form approved by the City Clerk.

2. Amendments to Chapter 9.15 (Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware)
CHAPTER 9.15: REGULATION OF FOOD SERVICE WARE AND POLYSTYRENE

FOAM COOLERS USED BY FOOD PROVIDERS AND SOLD BY RETAILERS . . . .

9.15.120 Exemptions to the Regulation of Food Service Ware and Polystyrene Foam Coolers Used by Food Providers and Sold by Retailers.

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Ordinance No. __________

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A. A Food Provider may seek an exemption from the requirements under Section

9.15.110 due to a “unique packaging hardship” under Subsection B of this section, “unused inventory” under Subsection C of this section, “significant economic hardship” under Subsection D, or request a temporary exemption to request extra time for compliance under Subsection E.

B. The Food Provider must demonstrate that no reasonably feasible alternative exists for a specific and necessary prohibited Single-Use food service ware item to qualify for a “unique packaging hardship” exemption.

C. The Food Provider must demonstrate that before October 6, 2022, it purchased the prohibited food service ware which cannot be returned to the distributor and, despite the food vendor's best efforts, the prohibited food service ware remains in inventory, to qualify for an “unused inventory” exemption.

D. The Food Provider must demonstrate that the provisions of this Chapter would cause significant economic hardship. “Significant economic hardship” may be based on, but not limited to, demonstrating that suitable Single-use Food Service Ware is not available at a commercially reasonable price and the additional cost associated with providing the Single-Use Food Service Ware is particularly burdensome to the Food Provider based on the type of operation(s) affected, the overall size of the business/operation, the number, type and location of its facilities, the impact on the overall financial resources of the Food Provider, and other factors. Reasonable added cost for an item required by this Chapter shall not by itself constitute adequate grounds to support an exemption for such item. In determining whether a significant economic hardship has been established, the Director shall consider the following information:
ability of the Food Provider to recover the additional expense by increasing its prices, outside funding, and other options.

E. The Food Provider must demonstrate that for other reasons not already stated it needs additional time to comply with the provisions of this Chapter.

F. The Food Provider may submit a written application for an exemption to the Environmental Programs Division. The Director may require the applicant to submit additional information or documentation to make a determination regarding the exemption request. A request for exemption shall be reviewed on a case by case basis, and may be granted in whole or in part, with or without conditions, for a period of up to one year. The determination of the Director shall be final and is not subject to appeal. 393
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Ordinance No. __________

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G. Prepackaged Food delivered from outside the City is exempt from the provisions of this Chapter.

H. Disposable Food Service Ware that is entirely Aluminum Foil-based including, but not limited to, aluminum trays, aluminum foil wrappers and aluminum foil baskets, is exempt from the provisions of this Chapter.

I. Temporary exemptions due to an emergency are automatic without the submission of a request for an exemption. An emergency is defined as a sudden, unexpected occurrence posing a clear and imminent danger that requires immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. Examples of an emergency include, but are not limited to natural disasters, emergencies due to the release of hazardous materials, emergencies associated with loss of power and/or water, or emergency medical response.

3. Amendments to Chapter 9.18 (Stormwater Pollution Prevention and Watershed Protection)

9.18.215 Litter Prevention and Enforcement.

A. Violations.

1. It is unlawful for any person to sweep, throw, deposit, place, or drop without picking up, any litter into or upon any public street, way, sidewalk, parking lot or other public place, or in or upon private property in the City into or upon which the public is admitted by easement or license.

2. It is unlawful for any person to throw or deposit litter in any fountain, pond, creek, stream or other body of water in a park or elsewhere within the City.

3. It is unlawful for any person to collect any garbage, mixed recyclables, or other materials from public or privately authorized outdoor receptacles, kept or accumulated within the City, unless such person is an agent or employee of the City acting within the course and scope of his or her employment, or is acting pursuant to a franchise awarded by the City to act as garbage collector.

4. It is unlawful for any person to discard , deposit, or maintain litter on any occupied private property within the City, whether owned by such person or not. 394
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5. It is unlawful for any person to discard, deposit, or maintain litter on any open or vacant private property within the City whether or not the property is owned by such person.

6. It is unlawful for any person to drive or move any open vehicle or trailer within the City unless there is a tarp over the contents or the material is constructed and loaded so as to ensure that all litter is prevented from being blown or deposited upon any street, alley or other public or private place.

B. Collection and Maintenance.

1. Persons placing material intended for disposal or recycling in public receptacles or in authorized private receptacles shall do so in such a manner as to prevent it from being scattered, carried, or deposited by the elements or animal scavengers upon any street, sidewalk, parking lot, creek, park or other public or private place.

2. Persons placing material intended for disposal or recycling in any public or privately authorized outdoor receptacle shall ensure that the lid is maintained completely closed. The over-filling of any outdoor receptacle intended for, but not limited to, trash, compostable organics and recyclables, in a manner that does not allow the lid to be completely closed is prohibited. The lid of a residential yard waste bin may be left partially open so long as the greater part of the yard and tree trimmings are contained if it is necessary to leave the lid partially open due to the branches or limbs not fitting completely into the bin with the lid closed. Yard waste bins containing food waste must be left with lids completely closed when not being serviced.

3. Uncontained large items originating from single-family homes that will not fit into a receptacle may be placed on private property adjacent to the City right-of-way for scheduled collection within 24 hours of such collection by an agent or employee of the City or by the awardee of a franchise by the City to act as garbage and recycling collector. Any such bulky item(s) may not be placed in the City right-of-way while awaiting collection.

4. Persons owning or occupying property shall maintain the premises, including the perimeter and the City sidewalk in front of their premises, free of loose litter.

5. Persons sharing Trios and cigarette urns placed outside of retail areas for public use, as required in section 9.18.210.4.P., must also share equally in the responsibility of emptying the receptacles so that they do not overflow and maintaining the area around the receptacles so that it is free of loose litter.
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C. Exceptions. The provisions of this section shall not apply to the distribution of mail by the United States, nor to newspapers of general circulation as defined by general law, nor any periodical or current magazine regularly published; provided, however, that no newspaper shall be thrown, deposited or distributed upon any premises where the owner or inhabitant thereof shall have previously advised, in writing, the publisher or distributor of such newspaper not to do so; and no newspaper shall be thrown, deposited or distributed upon any premises where two (2) or more editions of the same newspaper remain unclaimed by the owner or occupant thereof.

4. Amendments to Chapter 15.04 (Waterworks System—Rates and Charges)

15.04.010 Definitions.

The following terms when used in this chapter have the following respective meanings:

A. “City” means the City of Cupertino.

B. “Customer” means any person, firm, company, corporation, partnership, association, the City, any public corporation, political subdivision, city, county, district, the State of California or the United States of America, or any department or agency of any thereof, who uses water furnished by the water system.

C. “Council” means the City Council of the City.

D. “Lease” means that certain lease entered into on October 1, 1997 between the City and San Jose Water Company, a California corporation whereby the City water system was leased for a period of twenty-five years, or any subsequent lease of the City water system entered into by the City.

E. “Water” means water furnished through the water system.

F. “Water facilities” means existing water system equipment and appurtenances.

G. “Water provider” means the San Jose Water Company or any subsequent lessee of the City water system.

H. “Water service” means the services, facilities and water furnished or available to premises by the water system.

I. “Water system” means the enterprise system for the supply, treatment, storage, transmission and distribution of water, including lines, easements, reservoirs, water rights, water tanks, water mains, wells, pumps, pumping equipment, storage, treatment, transmission and distribution facilities, and other works, properties or structures necessary or convenient as more specifically described in Exhibit B attached to the lease.

J. “Service area” means the territory serviced by the water system as described in the lease.
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5. Amendments to Chapter 16.72 (Recycling and Diversion of Construction and Demolition Waste)

16.72.050 Information Required Before Issuance of Permit.

Every applicant shall submit a properly completed waste management plan on a form approved by the Public Works Director, as a portion of the building or demolition permit application process for a covered project.

A. The vendor that the applicant proposes to use to haul the materials must be consistent with the franchise currently in effect pursuant to the provisions of Chapter

6.24;
B. Approval by the Director of Public Works, or designee, of the waste management plan as complying with the applicable California Green Building Standards Code shall be a condition precedent to the issuance of any building or demolition permit for a covered project.
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1 ORDINANCE NO. __________________

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.

SECTION 3: Effective Date.

This Ordinance shall take effect thirty days after adoption as provided by Government Code Section 36937.
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Ordinance No. __________

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SECTION 4: 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 November 7, 2023 and ENACTED at a regular meeting of the Cupertino City Council on November 21, 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 – Page 1
Attachment A – An Ordinance of the City Council of the City of Cupertino Amending City Code Chapters 1.18, 9.15, 9.18, 15.04, and 16.72
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. Amendments to Chapter 1.18 (Claims Against the City)

1.18.020 Form of claim.

2. Amendments to Chapter 9.15 (Prohibition of Expanded Polystyrene (EPS) Foam Food Service Ware)
CHAPTER 9.15: PROHIBITION OF EXPANDED POLYSTYRENE (EPS) FOAM FOOD

SERVICE WAREREGULATION OF FOOD SERVICE WARE AND POLYSTYRENE

FOAM COOLERS USED BY FOOD PROVIDERS AND SOLD BY RETAILERS . . . .
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9.15.120 Exemptions to the Polystyrene Foam Disposal Food Service Ware ProhibitionExemptions to the Regulation of Food Service Ware and Polystyrene Foam Coolers Used by Food Providers and Sold by Retailers.

A. A Food Provider may seek an exemption from the requirements under Section

C. The Food Provider must demonstrate that before [new effective date of this ordinance]October 6, 2022, it purchased the prohibited food service ware which cannot be returned to the distributor and, despite the food vendor's best efforts, the prohibited food service ware remains will remain in inventory on [date], to qualify for an “unused inventory” exemption.

E. The Food Provider must demonstrate that for other reasons not already stated it needs additional time to comply with the provisions of this Chapter.

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exemption request. A request for exemption shall be reviewed on a case by case basis, and may be granted in whole or in part, with or without conditions, for a period of up to one year. The determination of the Director shall be final and is not subject to appeal.

G. Prepackaged Food delivered from outside the City is exempt from the provisions of this Chapter.

3. Amendments to Chapter 9.18 (Stormwater Pollution Prevention and Watershed Protection)

9.18.215 Litter Prevention and Enforcement.

A. Violations.

2. It is unlawful for any person to throw or deposit litter in any fountain, pond, creek, stream or other body of water in a park or elsewhere within the City.

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4. It is unlawful for any person to discard , deposit, or maintain litter on any occupied private property within the City, whether owned by such person or not.

5. It is unlawful for any person to discard, deposit, or maintain litter on any open or vacant private property within the City whether or not the property is owned by such person.

B. Collection and Maintenance.

3. Uncontained large items originating from single-family homes that will not fit into a receptacle may be placed at the curb on private property adjacent to the City right-of-way for scheduled collection within 24 hours of such collection by an agent or employee of the City or by the awardee of a franchise by the City to act as garbage and recycling collector. Any such bulky item(s) may not be placed in the City right-of-way while awaiting collection.

4. Persons owning or occupying property shall maintain the premises, including the perimeter and the City sidewalk in front of their premises, free of loose litter. 403
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Ordinance No. __________

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4. Amendments to Chapter 15.04 (Waterworks System—Rates and Charges)

15.04.010 Definitions.

The following terms when used in this chapter have the following respective meanings:

A. “City” means the City of Cupertino.

C. “Council” means the City Council of the City.

E. “Water” means water furnished through the water system.

F. “Water facilities” means existing water system equipment and appurtenances.

G. “Water provider” means the San Jose Water Company or any subsequent lessee of the City water system.

H. “Water service” means the services, facilities and water furnished or available to premises by the water system.

I. “Water system” means the enterprise system for the supply, treatment, storage, transmission and distribution of water, including lines, easements, reservoirs, water rights, water tanks, water mains, wells, pumps, pumping equipment, storage, treatment, transmission and distribution facilities, and other works, properties or 404
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Ordinance No. __________

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structures necessary or convenient as more specifically described in Exhibit B attached to the lease.

J. “Service area” means the territory serviced by the water system as described in the lease.

5. Amendments to Chapter 16.72 (Recycling and Diversion of Construction and Demolition Waste)

16.72.050 Information Required Before Issuance of Permit.

Every applicant shall submit a properly completed “Waste Management Plan”waste management plan on a form approved by the Public Works Director, as a portion of the building or demolition permit application process for a covered project.

A. The vendor that the applicant proposes to use to haul the materials must be consistent with the franchise currently in effect pursuant to the provisions of Chapter

6.24;
B. Approval by the Director of Public Works, or designee, of the Waste Management Plan waste management plan as complying with the applicable California Green Building Standards Code shall be a condition precedent to the issuance of any building or demolition permit for a covered project.
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CITY OF CUPERTINO
Agenda Item
23-12416 Agenda Date: 11/7/2023
Agenda #: 13.

Subject: Adoption of Code of Ethics and Conduct for Elected and Appointed Officials Adopt Resolution No. 23-122 adopting the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Official and rescinding the current Ethics Policy Presenter: Christopher Jensen, City Attorney
CITY OF CUPERTINO Page 1 of 1 Printed on 11/2/2023
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CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Adoption of Code of Ethics and Conduct for Elected and Appointed Officials.

Recommended Action
Adopt Resolution No. 23______ adopting the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Official and rescinding the current Ethics Policy.

Reasons for Recommendation
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 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 May 2023 Fact Finding Report prepared by Linda Daube, Esq. (Attachment D); and the July 2023 Enterprise Leadership Assessment prepared by the City’s internal auditor, Moss Adams LLP (Attachment E). In particular, 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.

On September 19, 2023, the City Attorney’s Office presented these concerns and the 2018 Ethics Code to the City Council, and solicited Council input on revisions to the Ethics Policy. Following deliberations, Council voted unanimously to direct the City Attorney to return with a revised Ethics Policy based on the 2018 Ethics Code, with the following direction:

1. That mechanisms for disciplinary actions for ethics violations as detailed in the City Council Procedures Manual be incorporated into the Ethics Policy; 407
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2. That a mechanism for holding elected and appointed officials accountable to timely completion of required documentation, including especially Form 700 Disclosures;

3. That the City Attorney and City Manager direct staff to periodically review the policy and provide training to elected and appointed officials; and

4. That the City Attorney to incorporate the comments from all Councilmembers and best practices for implementation, for accountability, and bring back a revision to achieve the ethics policy goals, taking into consideration the results of public outreach and public comments, as appropriate; with flexibility for the City Attorney to include options for Council to choose from.

The City Attorney’s Office incorporated Council’s direction, as well as considering other input from individual Councilmembers, into a revised Code of Ethics based on the 2018 Ethics Code. Redlined and clean versions of the revised Ethics Code are presented in Attachments F and G, respectively. The revised Ethics Code reflects the following updates to the 2018 Code:
 Covered Officials: Coverage of the proposed Ethics Code would be extended to department heads as well as elected officials, Council appointees, and the City Manager, City Attorney, the City Clerk, and the Treasurer.  FPPC Reporting: Language is added to the proposed Code to expressly state that all Members have an obligation to comply with California Fair Political Practices Commission (FPPC) regulations requiring the disclosure of economic interests.

The City Attorney’s Office recommends that additional sanctions for such non‐ disclosure by commissioners and non‐Council committee members be addressed in upcoming revisions to the Commissioner’s Handbook.
 Conflicts of Interest: Conflict of interest protections are extended to require recusal where an Official has an interest that “materially interferes with the City Official’s ability to make an impartial decision in the best interest of the City” and to clarify requirements to avoid conflicts of interest in quasi‐adjudicatory matters. In addition, the revised conflict of interest rules require disclosure of, but not recusal for, “a Member’s affiliation or relationship with any organization, entity, or individual that would be materially affected by a decision regarding a matter before the legislative body.” The proposed language balances Councilmembers’ interest in strengthening protections against conflicts of interest with the desire to avoid an overbroad recusal requirement.  Enforcement: The disciplinary procedures in the 2018 Ethics Code are revised and include more detail regarding the procedures for and form of discipline that may be imposed on Councilmembers or commission or committee members.

With respect to Councilmembers, the proposed revisions would require alleged violations of the Code to be referred to the City Attorney for review, in 408
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consultation with the City Manager. The Mayor would continue to play a role in the disciplinary process for commissioners and non‐Council committee members, consistent with the fact that those appointed officials serve at the pleasure of Council.
 Other Revisions: The proposed Ethics Code includes revisions to ensure consistency with the recently adopted City Council Procedures Manual and to ensure that the First Amendment rights of City Officials are recognized, as well as minor edits for clarity, conciseness, and consistency.

The City Attorney’s Office believes the proposed language is consistent with direction provided by the City Council at its September 19 meeting and recommends that the Council adopt the enclosed resolution (Attachment G) adopting the revised Ethics Code and rescinding the 2020 Ethics Policy.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

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 – Redline of 2018 Ethics Code
G – Draft Resolution No. 23‐_______
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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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City of
Scharf,
Cupertino
Mayor
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ATTEST:
��Squarcia, City C-le-r ---
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Date
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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.

By their very nature, some guidelines apply only to legislative bodies and decision- makers as noted in the Code . 416
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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 417
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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 418
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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 419
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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.
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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.
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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
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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. 426
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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 427
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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
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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 CouncilNovember 7, 2023

Cupertino City Council
November 7, 2023