Cupertino City Council
April 16, 2024

Payment Register
City of Cupertino
From Payment Date: 3/23/2024 - To Payment Date: 3/29/2024 Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
39360 03/29/2024 Open Accounts Payable WCT $5,600.00
Invoice Date Description Amount
0012152-IN 03/11/2024 PAC Storage 5/30/24 - 5/29/25 for PS 3000, 60-Bay 4U RAID, 5x9 T
$5,600.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$5,600.00
39361 03/29/2024 Open Accounts Payable West Coast Arborists, Inc. $2,768.00 Invoice Date Description Amount
1-9867 03/26/2024 TR-2024-009 Arborist Peer Review - 10747 Par Three Dr
$2,768.00
Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$2,768.00
39362 03/29/2024 Open Accounts Payable West Valley Community Services $17,290.25 Invoice Date Description Amount
2740 02/29/2024 HTH Job Training Pilot Program - 2024/02 $17,290.25 Paying Fund Cash Account Amount
100 - General Fund 100 100-100 (Cash & Investments Assets Operating Cash)
$17,290.25
39363 03/29/2024 Open Accounts Payable Zayo Group, LLC $3,246.44 Invoice Date Description Amount
2024030030583 03/01/2024 FY24 Disaster Recovery Telecom services - March 2024
$3,246.44
Paying Fund Cash Account Amount
610 - Innovation & Technology 610 100-100 (Cash & Investments Assets Operating Cash)
$3,246.44
Type EFT Totals: 63 Transactions $212,660.99
Main Account - Main Checking Account Totals
Checks Status Count Transaction Amount Reconciled Amount Open 30 $1,522,689.51 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 30 $1,522,689.51 $0.00
EFTs Status Count Transaction Amount Reconciled Amount
Open 63 $212,660.99 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Total 63 $212,660.99 $0.00
All Status Count Transaction Amount Reconciled Amount
Open 93 $1,735,350.50 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Tuesday, April 2, 2024Pages: 14 of 15user: Vi Tran 124
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Payment Register
City of Cupertino
From Payment Date: 3/23/2024 - To Payment Date: 3/29/2024 Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
Total 93 $1,735,350.50 $0.00
Grand Totals:

Checks Status Count Transaction Amount Reconciled Amount Open 30 $1,522,689.51 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 30 $1,522,689.51 $0.00
EFTs Status Count Transaction Amount Reconciled Amount
Open 63 $212,660.99 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Total 63 $212,660.99 $0.00
All Status Count Transaction Amount Reconciled Amount
Open 93 $1,735,350.50 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 93 $1,735,350.50 $0.00
Tuesday, April 2, 2024Pages: 15 of 15user: Vi Tran
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CITY OF CUPERTINO
Agenda Item
24-13016 Agenda Date: 4/16/2024
Agenda #: 5.

Subject: Adoption of Ordinance No. 24-2257, Regulating the Sale of Tobacco Products Conduct the second reading and enact Ordinance No. 24-2257, entitled “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS”
CITY OF CUPERTINO Printed on 4/10/2024Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: April 16, 2024

Subject
Adoption of Ordinance No. 24-2257, Regulating the Sale of Tobacco Products

Recommended Action
Conduct the second reading and enact Ordinance No. 24-2257, entitled “AN

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING CHAPTER 5.50 OF TITLE 5 (BUSINESS LICENSES AND REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS”

Reasons for Recommendation
On April 3, 2024, the City introduced Ordinance No. 24-2257, which amends Municipal Code Chapter 5.50 regulating the sale of tobacco products. These updates were requested by Santa Clara County’s Department of Environmental Health in order to ensure continued County enforcement of the City Retail Tobacco Ordinance.

The proposed Municipal Code changes are reflected in the draft ordinance in Attachment A. If adopted, the Ordinance will become effective 30 days following the second reading.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

California Environmental Quality Act
Not applicable.
_____________________________________

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Prepared by: Astrid Robles, Senior Management Analyst
Reviewed by: Matt Morley, Assistant City Manager
Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager

Attachments:

A – Draft Ordinance No. 24-2257 (Amending Municipal Code Chapter 5.50)

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ORDINANCE NO. __________________

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

REGULATIONS) TO REGULATE THE SALE OF TOBACCO PRODUCTS

The City Council of the City of Cupertino finds that:

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

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

SECTION 1. Adoption.

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

SECTION 2. Severability and Continuity.

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

SECTION 3. Effective Date.

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

SECTION 5. Publication.

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

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

INTRODUCED at a special meeting of the Cupertino City Council on April 3, 2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16, 2024 by the following vote:
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Members of the City Council

AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:

__________________
Shelia Mohan, Mayor
City of Cupertino

________________________
Date
ATTEST:

________________________
Kirsten Squarcia, City Clerk

________________________
Date
APPROVED AS TO FORM:

__________________________
Christopher D. Jensen, City Attorney

________________________
Date

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Attachment A – An Ordinance of the City Council of the City of Cupertino Amending Chapter 5.50 of Title 5 (Business Licenses and Regulations) to Regulate the Sale of Tobacco Products
The sections of the Cupertino Municipal Code set forth below are amended or adopted as follows:

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

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

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

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

5.50.010 Intent.

A. This Chapter is adopted to:

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

2. Encourage responsible retailing of Tobacco Products;

3. Prevent violations of laws related to Tobacco Products, especially those that prohibit or discourage the sale or distribution of Tobacco Products and Electronic Cigarette Products to individuals under twenty-one;

4. Respond to a new wave of addiction to Electronic Cigarette Products;

5. Reduce vulnerability to unexplained illnesses associated with Electronic Cigarette Products; and

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

5.50.020 Definitions.

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

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

B. “Department” means the County of Santa Clara’s Department of Environmental Health and any agency or person designated by the Director of the Department of Environmental Health to enforce or administer the provisions of this Chapter.

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

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

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

2. Any component, part, or accessory of such a device or delivery system that is used during its operation.

3. Any flavored or unflavored liquid or substance containing nicotine, whether sold separately or sold in combination with any device or delivery system that could be used to deliver nicotine in aerosolized or vaporized form.

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

5. Electronic Cigarette Products shall not include any battery, battery charger, carrying case, or other accessory not used in the operation of the device if sold 133
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separately. Electronic Cigarette Products shall not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where that product is marketed and sold solely for such approved use. See 21 U.S.C. § 387(a). As used in this paragraph, nicotine does not include any food products as that term is defined pursuant to Section 6359 of the California Revenue and Taxation Code.

E. “Hearing Officer” means the hearing officer appointed by the Department in accordance with County of Santa Clara Ordinance Code (“County Ordinance Code”) section A38-2.

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

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

H. “Permit” means a valid permit issued by the Department to a person to act as a retailer.

I. “Retailer” means any person who sells, exchanges, offers to sell or exchange, or distributes Tobacco Products for any form of consideration, whether or not they possess a current Permit. “Retailing” shall mean the doing of any of these actions.

This definition is without regard to the quantity of Tobacco Products sold, exchanged, distributed, or offered for sale or exchange.

J. “School” means a public or private elementary, middle, junior high, or high school.

K. “Sale and sold” includes any sale, exchange, barter, or offer for sale.

L. “Tobacco Product” means (unless specifically noted elsewhere) any product subject to Subchapter IX (21 U.S.C. § 387 et seq. (“Subchapter IX”)) of the Federal Food, Drug, and Cosmetic Act (See 21 U.S.C. § 387a(b) (products subject to Subchapter IX); 21 C.F.R. §§ 1100.1- 1100.3 (tobacco products subject to Subchapter IX)) and Electronic Cigarette Products. Products subject to Subchapter IX include, but are not limited to, cigarettes, cigarette tobacco, roll-your- own tobacco, smokeless tobacco, cigars, pipe tobacco, and waterpipe tobacco.

Products that are not subject to Subchapter IX include accessories 134
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of tobacco products, such as, but not limited to, ashtrays, spittoons, and conventional matches and lighters that solely provide an external heat source to initiate but not maintain combustion of a tobacco product.

5.50.030. Requirements and prohibitions.

A. Permit required. It shall be unlawful for any Person to act as a Retailer without first obtaining and maintaining a Permit pursuant to this Chapter for each location at which Retailing occurs.

B. Lawful business operation. It shall be a violation of this Chapter for any retailer to violate any local, state, or federal law applicable to tobacco products or the retailing of such Tobacco Products.

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

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

E. Positive identification required. No retailer shall sell or distribute a Tobacco Product to another individual without first examining the individual's identification to confirm that the individual is at least the minimum age required under State law to purchase and possess the Tobacco Product.

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

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

1. Shall keep all Tobacco Products out of public view.

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

I. Flavored Tobacco Products.

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

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

J. Vending machines prohibited. No Tobacco Product shall be Sold or Distributed to the public from a vending machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.
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K. Prohibition on Sale or Distribution of Tobacco Products to individuals under twenty-one. No Retailer shall Sell or Distribute any Tobacco Product to any individual who is under twenty-one years of age.

L. Prohibition on Sale or Distribution of Electronic Cigarette Products. No person, whether or not issued a Permit, shall Sell or Distribute Electronic Cigarette Products.

5.50.040. Eligibility requirements for a Permit.

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

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

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

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

1. Any Retailer of tobacco products (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B);

2. Any Retailer of electronic smoking devices (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its permit pursuant to 5.50.070(B); however, any such Retailer is subject to the prohibition on the Sale and Distribution of Electronic Cigarette Products established in Section 5.50.030; and
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3. Any lawfully operating Retailer of Tobacco Products that would otherwise become ineligible to receive or renew a Permit due to the creation or relocation of a school.

E. No Permit may be issued to authorize Retailing at a location which is within five hundred feet of a location occupied by another Retailer, as measured by a straight line between any point along the perimeter of an existing Retailer’s business location and any point along the perimeter of the Permit applicant's proposed business location; provided, however, that the prohibition contained in this paragraph shall not apply to:

1. Any Retailer of tobacco products (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renews its Permit pursuant to 5.50.070(B); and

2. Any Retailer of electronic smoking devices (as such term was defined in Ordinance No. 20-2197) operating lawfully on the date immediately before this Chapter becoming effective provided that the Retailer obtained a Permit before July 1, 2020 pursuant to sections 5.50.050 and 5.50.060, and timely renewed its Permit pursuant to 5.50.070(B); however, any such Retailer is subject to the prohibition on the Sale and Distribution of Electronic Cigarette Products established in Section 5.50.030.

F. Any exemption granted to a Retailer pursuant to this Chapter shall cease to apply upon the earlier of the following to occur:

1. The Retailer fails to timely renew the Permit pursuant to this Chapter.

2. A new Person obtains ownership in the business.

5.50.050 Application procedure.

A. It is the responsibility of each Retailer to be informed of all laws applicable to Retailing, including those laws affecting the issuance of a Permit. No Retailer may rely on the issuance of a Permit as a determination by the City or the County of Santa Clara that the Retailer has complied with all laws applicable to Retailing. A Permit issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information supplied by a Retailer shall be revoked pursuant to this Chapter.
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B. All Permit applications shall be submitted on a form supplied by the Department.

C. A permitted retailer shall inform the Department in writing of any change in the information submitted on an application for a Permit within fourteen calendar days of a change.

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

5.50.060 Permit issuance, denial, and revocation.

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

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

2. The application seeks authorization for Retailing at a location for which this Chapter prohibits issuance of a Permit.

3. The application seeks authorization for Retailing by a Person to whom this Chapter prohibits issuance of a Permit.

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

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

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

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

C. A Permit shall be permanently revoked if the Retailer has committed violations as specified in Section 5.50.130.
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5.50.070 Permit term, conditions, renewal, and expiration.

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

B. Conditions of Permit. As conditions of Permit issuance and retention, Retailer shall:

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

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

3. Failure to comply with these permit conditions may result in Permit suspension or revocation as described in Section 5.50.130.

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

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

5.50.080 Permits nontransferable.

A. A Permit may not be transferred from one Person to another or from one location to another. Whenever a new Person obtains ownership in a business for which a 140
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Permit has been issued, a new Permit shall be required, but any exemption granted pursuant to Section 5.50.040 shall cease to apply.

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

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

2. The Department is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an Arm's Length Transaction.

5.50.090 Permit conveys a limited, conditional privilege.

Nothing in this Chapter shall be construed to grant any person obtaining and maintaining a Permit any status or right other than the limited, conditional privilege to act as a Retailer at the location in the city identified on the face of the Permit. All Permits are issued subject to the City’s right to amend this Chapter, and Retailers shall comply with all provisions of this Chapter, as amended.

5.50.100 Fees.

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

5.50.110 Compliance monitoring.

A. Compliance with this Chapter shall be monitored by the Department. In addition, any peace officer may enforce the penal provisions of this Chapter. The Department may designate any number of additional individuals to monitor and facilitate compliance with this Chapter.
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B. The Department or other individuals designated to enforce the provisions of this Chapter shall monitor each Retailer at least once per twelve-month period to determine if the Retailer is complying with all laws applicable to Retailing, other than those laws regulating underage access to Tobacco Products. Nothing in this paragraph shall create a right of action in any Retailer or other person against the City, the County of Santa Clara, or its agents.

C. Any Retailer found to be in violation of this Chapter shall pay all costs related to enforcement to ensure Retailer’s compliance with this Chapter, including but not limited to, fees for reinspection to determine compliance after a violation, enforcement costs, litigation costs, and attorneys’ fees in any administrative or civil matter in which the Department prevails pursuant to Division A1 of the County Ordinance Code or any other provision of law.

5.50.120 Prevention of underage sales.

A. The Department of other departments or individuals designated to enforce the provisions of this Chapter shall monitor each Retailer at least twice per twelve- month period to determine whether the Retailer is conducting business in a manner that complies with laws regulating youth access to Tobacco Products.

Nothing in this paragraph shall create a right of action in any Retailer or other Person against the City, the County of Santa Clara, or its agents.

B. The Department or other departments or individuals designated to enforce the provisions of this Chapter shall not enforce any law establishing a minimum age for Tobacco Product purchases against an individual who otherwise might be in violation of such law because of the individual’s age (“Youth Decoy”) if the potential violation occurs when:

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

2. The Youth Decoy is acting as an agent of a department or individual designated by the City or the County of Santa Clara to monitor compliance with this Chapter; or

3. The Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the City, the County of Santa Clara, or the California Department of Public Health.
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5.50.130 Penalties for a violation by a Retailer with a Permit.

A. Administrative Fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the Retailer or any of the Retailer's agents or employees, violates any of the requirements, conditions, or prohibitions of this Chapter.

The amount of the administrative fine for each violation of this Chapter shall be as follows:

1. A fine not to exceed $1,000 for each violation identified during the first instance in which the Retailer has committed a violation or violations;

2. A fine not to exceed $2,500 for each violation identified during a subsequent instance if the Retailer has committed a previous violation or violations within a 60-month period; and

3. A fine not to exceed $5,000 for each violation identified during a subsequent instance after the Retailer twice committed a previous violation or violations within a 60-month period.

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

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

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

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

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

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

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

F. Written notice of penalties. Whenever a fine is issued and/or a Permit is suspended or revoked based on a violation of this Chapter, the Department shall provide the retailer written notice of the violation and the fine and suspension or revocation, including when the suspension or revocation shall take effect.

G. Appeals. Any penalties imposed under this section may be appealed pursuant to Section 5.50.150 of this Chapter.

H. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the Department is issued.
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5.50.140 Penalties for retailing without a Permit.

A. Administrative fine. In addition to any other penalty authorized by law, a Retailer shall pay a fine if the Department demonstrates that the Retailer has engaged in Retailing at a location without a valid Permit, either directly or through the Retailer's agents or employees. The amount of the administrative fine for each violation of this Chapter shall be as follows:

1. A fine not to exceed $2,500 for each violation identified during the first instance in which the Retailer has committed a violation or violations without a valid Permit;

2. A fine not to exceed $5,000 for each violation identified during a subsequent instance if the Retailer has committed a previous violation or violations within a 60-month period without a valid Permit; and

3. A fine not to exceed $10,000 for each violation identified during a subsequent instance after the Retailer has twice committed a previous violation or violations within a 60-month period without a valid Permit.

B. Time period for Permit ineligibility. The ineligibility period shall be as follows:

1. For an initial violation of this Chapter without a valid Permit, no new Permit may be issued to the Retailer or the location (unless Ownership of the business at the location has been transferred in an Arm's Length Transaction) until 30 calendar days have passed from the date of the violation.

2. If a Retailer commits a violation or violations during two instances within a 60- month period without a valid Permit, no new Permit may be issued to the Retailer or the location (unless ownership of the business at the location has been transferred in an Arm's Length Transaction) until one year has passed from the date of the second violation.

3. If a Retailer commits a violation or violations during three instances within a 60-month period without a valid Permit, the Retailer and the location (unless Ownership of the business at the location has been transferred in an Arm's Length Transaction) shall be permanently ineligible for a Permit.

C. Waiver or reduction of fines and penalties for first violation. The Department may, in its sole discretion, waive or reduce any fines and penalties for a Retailer's first violation of this Chapter if the Retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the Department’s 145
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waiver of fines or penalties for a first violation, the violation will be considered in determining the fines and suspension periods or revocation for any future violation. This subsection shall not apply to any violation involving a law regulating youth access to Tobacco Products.

D. Written notice of penalties. Whenever a fine is issued and/or a Permit is suspended pursuant to this section, the Department shall provide the Retailer written notice of the fine and suspension, including when the suspension shall take effect.

E. Appeals. Any penalties imposed under this Chapter may be appealed pursuant to Section 5.50.150 of this Chapter. A timely appeal shall stay enforcement of the appealed penalties until the final administrative decision of the County is issued.

5.50.150 Appeals.

A. Any Retailer served with a written notice of violation may request an administrative hearing to appeal the existence of the violation, the amount of the fine, the length of a suspension, a revocation of a Permit, the sustained impoundment of Tobacco Products, and/or seizure of Tobacco Products by returning a completed hearing request form to the Office of the County Hearing Officer within 10 days from the date of the written notice of penalties.

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

1. A statement indicating the reason the Retailer contests the written notice of penalties, including a factual and/or legal basis for the appeal in sufficient detail to put the Department on notice of the nature of the appeal and the objections and arguments raised by the Retailer;

2. Any evidence the Retailer wants the Hearing Officer to consider;

3. Payment of the $250 filing fee.

4. An advance deposit of the amount of any fine challenged if less than $1,000.00, and otherwise $1,000.00;

5. The address of the Retailer and, if available, an email address that can be used for contact and correspondence by the Office of the County Hearing Officer and the Department. The Retailer may request service of notice by mail; and 146
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6. Notwithstanding the above requirements, a Retailer may seek a waiver or reduction in the filing fee and/or deposit requirement by submitting a sworn affidavit and supporting documents or materials demonstrating the Retailer’s financial inability to pay the filing fee and/or advance deposit.

C. The hearing request form shall be deemed filed on the date received by the Office of the County Hearing Officer. A timely appeal shall stay enforcement of the appealed penalties while the appeal is ongoing.

D. After receiving a timely hearing request form, the Office of the County Hearing Officer shall notify the Department as soon as practicable and then shall schedule an administrative hearing. The Office of the County Hearing Officer shall provide the Retailer and the Department at least ten calendar days’ written notice of the date, time, and place of the administrative hearing and the name of the Hearing Officer who will conduct the hearing. The notice shall be given to the Retailer either by email, if requested, or by first class mail, postage prepaid.

E. Between the time the Retailer requests the administrative hearing and the time of the Hearing Officer’s decision, the Retailer, the Department, and each of their representatives shall not engage in ex parte communications with the Hearing Officer regarding the matters at issue in the hearing.

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

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

H. The written notice of penalties and any other reports prepared by or for the Department concerning the violation shall be admissible and accepted by the Hearing Officer as prima facie evidence of the violation and the facts stated in those documents. The Hearing Officer may continue the hearing from time to time, in the Hearing Officer’s sole discretion, to allow for its orderly completion 147
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of the hearing. After receiving the evidence submitted at the hearing, the Hearing Officer may further continue the hearing and request additional information from either the Department or the Retailer.

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

1. Be based on a preponderance of the evidence.

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

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

4. Be served on both the Retailer and the Department. The decision shall be given to the Retailer either by email, if requested, or by first class mail, postage prepaid.

J. Based on the Hearing Officer’s decision, the Office of the County Hearing Officer shall promptly refund to the Retailer any amount of the advance fine deposit the Department is not entitled to and shall provide the remainder to the Department.

K. The Hearing Officer’s written decision shall constitute the final administrative decision of the Department.

5.50.160 Enforcement.

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

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

C. Whenever evidence of a violation of this Chapter is obtained in any part through the participation of an individual under the age of twenty-one years old, such an individual shall not be required over their objection to appear or give testimony in any civil or administrative process brought to enforce this Chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

D. Violations of this Chapter may be remedied by a legal action brought by the County of Santa Clara Office of the County Counsel pursuant to Division A1 of the Ordinance Code of the County of Santa Clara. For the purposes of the civil remedies provided in this Chapter, each day on which a product is offered for 148
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Sale in violation of this Chapter, and each individual retail product that is Sold or Distributed in violation of this Chapter, shall constitute a separate violation of this Chapter.

E. Impoundment.

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

2. No impounded Tobacco Products shall be used, removed, disposed, or offered for Sale unless the impoundment has been released. The decision by the Department may be appealed pursuant to the procedures set forth in Section

5.50.150.

3. Within 30 days of final determination whether impounded products are authorized for sale under this Chapter, the Department shall release the impounded materials or order that unauthorized, impounded product shall be destroyed and properly disposed of at the cost of the Retailer.

F. Seizure. Tobacco Products offered for sale in violation of this Chapter are subject to seizure by the Department and shall be forfeited after the Retailer of the Tobacco Products seized is given reasonable notice and an opportunity to demonstrate that the Tobacco Products were not offered for sale in violation of this Chapter. The decision by the Department may be appealed pursuant to the procedures set forth in Section 5.50.150. Forfeited Tobacco Products shall be destroyed and properly disposed of at the cost of the Retailer after all internal appeals have been exhausted and after the time in which to seek judicial review pursuant to Section 5.50.150 of this Chapter has expired.

G. All Retailers are responsible for the actions of their employees relating to compliance with this Chapter. The Sale, offer to sell, or furnishing of any Tobacco Products by an employee shall be considered an act of the Retailer.

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

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

B. Nothing in this Chapter shall be construed to penalize the purchase, use, or possession of a Tobacco Product by any Person not engaged in the retailing of such products.
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CITY OF CUPERTINO
Agenda Item
24-12867 Agenda Date: 4/16/2024
Agenda #: 6.

Subject: Adoption of Ordinance No. 24-2258, Amendment to a Development Agreement for the Cupertino Village Boutique Hotel Project from five to eight years and associated environmental review. (Application No(s): DA-2023-002; Applicant(s): KIMCO (Sunil Plaha); Location: 10801 and 10805 N. Wolfe Rd.; APN: 316 45 017, 316 05 056)
Conduct the second reading and enact Ordinance No. 24-2258: “AN ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF CUPERTINO APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL" CITY OF CUPERTINO Printed on 4/10/2024Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: April 16, 2024
Subject
Second reading of amendments to a Development Agreement for the Cupertino Village Boutique Hotel Project from five to eight years and associated environmental review. (Application No(s): DA -2023-002; Applicant(s): KIMCO (Sunil Plaha); Location: 10801 and 10805 N. Wolfe Rd.; APN: 316 45 017, 316 05 056) Recommended Action
Conduct the second reading and enact Ordinance No. 24-2258: “An Ordinance of the City Council of the City of Cupertino to amend a Development Agreement for the Cupertino Village Boutique Hotel.”
Discussion
During a regular City Council Meeting held on April 3 , 202 4, City Council conducted the first reading for Ordinance No. 2 4-2258. Staff presented details about the proposed extension of the Development Agreement for the Cupertino Village Hotel, as well as the proposed amendments which include:
 The term of the agreement of the agreement extended to the (8th) anniversary of the Effective Date (November 19, 2027).
 In the event the Developer submits for a Building Permit for the core and shell of the hotel within three years of the Effective Date of the 1st Amendment, the Term of the agreement is automatically extended for two additional years, for a total of five years, i.e., until November 19, 2029.
 If Certificate of Occupancy for the Project is issued withi n five years of the Effective Date of the First Amendment (April 16, 2029) Developer shall be relieved of its obligations to make further Community Amenity Funding payments.
 Any proposed revisions to the amount of parking and/or parking layout, are treated as an Administrative Project Amendment and not subject to an amendment to this agreement.
 Requirement that the project comply with the bird safe and dark sky ordinance, Cupertino Munici pal Code Chapter 19.102: Glass and Lighting Standards.
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If Council approves these changes today, the proposed ordinance will take effect after 30 days on May 16, 2024.

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Benjamin Fu, Director of Community Development Approved for Submission by: Pamela Wu, City Manager

Attachments:

A – Draft Ordinance No. 24-2258

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ORDINANCE NO. 24-2258

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT

FOR THE CUPERTINO VILLAGE BOUTIQUE HOTEL

In accordance with Cupertino Municpal Code Section 19.144.110 Development Agreement, the City Council of the City of Cupertino finds that the amendments to a Development Agreement (DA-2017-01):

A. Is consistent with the objectives, policies, general land uses and programs specified in the General plan and any applicable specific plan; General Plan Strategy LU -9.1.3: Economic Development and Business Retention – Encourages the City attract new businesses and retain existing businesses that provide local shopping and services, add to municipal revenues, contribute to economic vitality, and enhance the City’s physical environment. Approving the requested amendment supports and facilitates a potential revenue generating use for the City, with added community benefits that include restaurant and community shuttle services. Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA - 2017-05, Resolution No. 19-091).

B. Is compatible with the uses authorized in, and the regulat ions prescribed for, the land use district in which the real property is or will be located; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091).

C. Is in conformity with and will promote public convenience, general welfare and good land use practice;
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment 154
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(GPA-2017-05, Resolution No. 19 -091). Extending the expiration of the Development Agreement, or future revisions to the amount of parking and/or parking layout, to be treated as an Administrative Project Amendment will not be at odds with promoting public convenience, general welfare and good land use practice.

D. Will not be detrimental to the health, safety and general welfare; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19-091). Further, on July 16, 2019, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2018112025, and approved the project. The Development Agreement extends the term of the entitlement up to eight years from the original entitlement, with no changes to the development scope.

E. Will not adversely affect the orderly development of property or the preservation of property values; and
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19 -091). The treatment of the amou nt of parking or revisions to the parking layout as an Administrative Amendment would not affect the orderly development of the property or the preservation of property values.

F. Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on July 16, 2019 and August 20, 2019, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2017-05, Resolution No. 19 -091). An extension in the number of years for which the project entitlement is valid fo r and a reduction in the voluntary community amenity payments would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS:
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SECTION 1. Adoption.

The Development Agreement is 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 substant ially the same as previous provisions of the Cupertino Municipal Code, these provisions shall be construed as continuations of those provisions and not as an amendment to or readoption of the earlier provisions.

SECTION 3: California Environmental Quality Act.

The City Council declares that no further environmental review is necessary u nder CEQA Guidelines section 1516 2 and that the amendment to the Development Agreement is in conformance with the previously adopted Mitigated Negative Declaration (State Clearinghouse No. 2018112025).

SECTION 4: Effective Date.

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

SECTION 5: Publication.

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

Pursuant to Government Code Section 36933, a summary of this Ordinance may be prepared by the City Clerk and published in lieu of publication of the entire text.

The City Clerk shall post in the office of the City Clerk a certified copy of the full text of the Ordinance listing the names of the City Council members voting for and against the ordinance.
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INTRODUCED at a special meeting of the Cupertino City Council on Aprl 3, 2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16, 2024 by the following vote:

Members of the City Council

AY
ES:

NO
ES:

ABSENT:

ABSTAIN:

SIGNED:

Sheila Mohan, 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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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
Attention: City Manager
Record for the Benefit of
The City of Cupertino
Pursuant to Government Code
Section 27383

Space Above Reserved for Recorder’s Use Only

FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY

OF CUPERTINO AND CUPERTINO VILLAGE LP FOR THE CUPERTINO VILLAGE

BOUTIQUE HOTEL
This First Amendment to Development Agreement ("Amendment No. 1") is made by and between the CITY OF CUPERTINO, a municipal corporation (the "City") and Northwest Properties, a California Limited Partnership ("Developer"), and is dated for reference purposes as of _____________.

RECITALS
A. City and Developer entered into a Development Agreement dated November 19, 2019 and recorded in the Official Records against certain property described in Exhibit A (the "Project Site") identified as Document No. _________ ("Development Agreement"). Any capitalized term used in this Amendment No. 1 that is not defined will have the meaning given to such term in the Development Agreement.

B. The Parties acknowledge that Developer has performed all obligations required under the Development Agreement as of the date of this Amendment No. 1, including providing payments as described in Section 5.1.1.1.

C. The Parties now wish to amend the Development Agreement as set forth below.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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ATTACHMENT A

AGREEMENT

1. TERM OF AGREEMENT. Section 2.2 of the Development Agreement is hereby revised and restated as follows: “The ‘Term’ of this Agreement shall commence on the Effective Date and shall expire on the eight (8th) anniversary of the Effective Date, unless earlier terminated or extended by mutual written consent of the Parties hereto in accordance with the requirements of Section 8.1, below.”

2. DEVELOPMENT OF THE PROPERTY. The Development Agreement shall be amended to include a new Section 3.4.2.1, which shall read as follows::
“Developer agrees to comply with the bird safe and dark sky ordinance , Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards.”

3. COMMUNITY AMENITY FUNDING. Subsection 5.1.1 of the
Development Agreement is hereby revised and restated as follows: “Community Amenity Funding. Developer agrees to pay City Ten Thousand Dollars ($10,000.00) for each hotel room constructed for an estimated total of One Million Eight Hundred Fifty Thousand Dollars ($1,850,000.00) in installments as described below, for City’s use in the City Council’s discretion subject to the following suggested guidelines (“Community Amenity Payment”), which payment shall be in addition to any Impact Fees otherwise due. Once paid, each installment of the Community Amenity Payment shall be nonrefundable, except as provided in Section 5.1.1.2 below. In the event City actions or conditions (including, but not limited to, conditions of the Project Approvals, interpretations of City ordinances, regulations and/or policies, and imposition of applicable building code requirements) regarding the Project Approvals cause the Project to be finally approved with fewer than 185 hotel rooms, the total Community Amenity Payment shall be Ten Thousand Dollars ($10,000.00) multiplied by the number of hotel rooms approved for construction; provided, the Community Amenity Payment shall not be reduced if Developer elects to voluntarily reduce the number of hotel rooms.

5.1.1.1 The Community Amenity Payment shall be made in installments as follows:
(1) Within ninety (90) days after the Effective Date, Developer shall pay City a first installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(2) On or before December 1st of each year, beginning on the first December 1st after the Effective Date, , as part of each annual review and together with 159
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submission of the Annual Review Form, Developer shall pay City an installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(3) In the event the Developer submits for a Building Permit for the core and shell of the hotel within three (3) years of the Effective Date of the 1 st Amendment, the Term of the agreement is automatically extended for two additional years, for a total of five years. Otherwise, the Term is only extended for three years. (4) If Certificate of Occupancy for the Project is issued within five (5) years of the Effective Date of the First Amendment, Developer shall be relieved of its obligations to make further payments under Section 5.1.1.1. Nothing in this section shall constitute a refund of prior payments made under this Development Agreement.
(5) In the event of a Litigation Challenge (described below in Section 9.3), all u npaid Community Amenity Payment installments shall be postponed until final resolution of the Litigation Challenge.”

4. ADMINISTRATIVE PROJECT AMENDMENTS. Subsection 8.2.1 of the Development Agreement is hereby revised and restated as follows: “Upon Developer ’s written request for an amendment or modification to the Project Approvals or Subsequent Approvals, the City Manager shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (i i) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the City Manager or his/her designee finds, in his or her sole discretion, that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the MND, the amendment or modification shall be determined to be an “Administrative Project Approval Amendment” and shall not require an amendment to this Agreement. Upon the City Manager’s approval, any Administrative Project Amendment shall be automatically incorporated into the applicable Project Approvals and this Agreement. Without limiting the foregoing, and by way of example, after City approval of the Existing Approvals, Developer requests for lot line adjustments, minor changes in improvement plans, minor changes in land uses involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle access points, changes in the amount of parking and parking layout, changes in pathway alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially a lter the infrastructure connections, facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Site Map or 160
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Property Description may be treated as Administrative Project Amendments.”

5. MISCELLANEOUS. •
a. Incorporation. This Amendment No. 1 constitutes a part of the Development Agreement and any reference to the Development Agreement shall be deemed to include a reference to the Development Agreement as amended by this Amendment No. 1.
b. Effective Date. This Amendment No. 1 shall be effective on the date that it is signed by both Parties and recorded in the Official Records. c. Ratification. To the extent of any inconsistency between this Amendment No. 1 and the Development Agreement, the provisions contained in this Amendment No. 1 shall control. As amended by this Amendment No. 1, all terms, covenants, conditions, and provisions of the Development Agreement shall remain in full force and effect.
d. Governing Law. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of California. e. Integration. This Amendment No. 1 contains the entire agreement between the Parties with respect to the subject matter of this Amendment No. 1. Any prior correspondence, memoranda, agreements, warranties, or representations relating to such subject matter are superseded in total by this Amendment No. 1.

NOW THEREFORE, the parties hereto have executed this Amendment No. 1 as of the date set forth above.
[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.

CITY:

CITY OF CUPERTINO, a municipal
corporation

By:

Pamela Wu, City Manager
[Signature must be notarized]
ATTEST:

By:

Kirsten Squarcia, City Clerk

APPROVED AS TO FORM:

By:

Christopher D. Jensen, City
Attorney
DEVELOPER:

CUPERTINO VILLAGE LP,
a California limited partnership

By:

Name
:

Its:

By:

Name
:

Its:
[Signatures must be notarized]

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CITY OF CUPERTINO
Agenda Item
24-12868 Agenda Date: 4/16/2024
Agenda #: 7.

Subject: Adoption of Ordinance No. 24-2259, Amendment to a Development Agreement for the De Anza Hotel Project from five to eight years and associated environmental review. (Application No (s): DA-2023-003; Applicant(s): De Anza Properties (John Vidovich); Location: 10931 N De Anza Blvd.; APN: 326-10-061)
Conduct the second reading and enact Ordinance No. 24-2259: “AN ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF CUPERTINO APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR THE DE ANZA HOTEL PROJECT"
CITY OF CUPERTINO Printed on 4/10/2024Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: April 16, 2024

Subject
Second reading of amendments to a Development Agreement for the De Anza Hotel Project from five to eight years and associated environmental review. (Application No(s): DA-2023-003; Applicant(s): De Anza Properties (John Vidovich); Location: 10931 N De Anza Blvd.; APN: 326-10-061)

Recommended Action
Conduct the second reading and enact Ordinance No. 24-2259: “An Ordinance of the City Council of the City of Cupertino to amend a Development Agreement for the De Anza Hotel Project.”

Discussion
During a regular City Council Meeting held on April 3 , 202 4, City Council conducted the first reading for Ordinance No. 2 4-2259. Staff presented details about the proposed extension of the Development Agreement for the De Anza Hotel, as well as the proposed amendments which include:
 The term of the agreement extended to the (8th) anniversary of the Effective Date (April 21, 2028).
 In the event the Developer submits for a Building Permit for the core and shell of the hotel within three years of the Effective Date of the 1st Amendment, the Term of the agreement is automatically extended for two additional years, for a total of five years, i.e., until April 21, 2030.
 If Certificate of Occupancy for the Project is issued within five years of the Effective Date of the First Amendment (April 21, 2029) Developer shall be relieved of its obligations to make further Community Amenity Funding payments.
 Any proposed revisions to the amount of parking and/or parking layout, are treated as an Administrative Project Amendment and not subject to an amendment to this agreement.
 Requirement that the project comply with the bird safe and dark sky ordinance, Cup ertino Municipal Code Chapter 19.102: Glass and Lighting Standards.

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If Council approves these changes today, the proposed ordinance will take effect after 30 days on May 16, 2024.

Prepared by: Gian Paolo Martire, Senior Planner
Reviewed by: Benjamin Fu, Director of Community Development Director Approved for Submission by: Pamela Wu, City Manager

Attachments:

A – Draft Ordinance No. 24-2259

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ORDINANCE NO. 24-2259

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO

APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT

FOR THE DE ANZA HOTEL PROJECT

In accordance with Cupertino Municpal Code Section 19.144.110 Development Agreement, the City Council of the City of Cupertino finds that the amendments to a Development Agreement (DA-2018-01):

A. Is consistent with the objectives, policies, general land uses and programs specified in the General plan and any applicable specific plan;
General Plan Strategy LU -9.1.3: Economic Development and Business Retention – Encourages the City attract new businesses and retain existing businesses that provide local shopping and services, add to municipal revenues, contribute to economic vitality, and enhance the City’s physical environment. Approving the requested amendment supports and facilitates a potential revenue generating use for the City, with added community benefits that include restaurant and community shuttle services. Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in c onformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No. 20-006).

B. Is compatible with the uses authorized in, and the regulati ons prescribed for, the land use district in which the real property is or will be located; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No. 20-006).

C. Is in conformity with and will p romote public convenience, general welfare and good land use practice;
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No. 20-006). Extending the expiration of the Development Agreement, or future revisions to the 166
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amount of parking and/or parking layout, to be treated as an Administrative Project Amendment will not be at odds with promoting public convenience, general welfare and good land use practice.

D. Will not be detrimental to the health, safety and general welfare; Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No. 20-006). Further, on March 3, 2020, the City of Cupertino adopted the Initial Study and Mitigated Negative Declaration, State Clearinghouse (SCH) Number 2019079010, and approved the project. The Development Agreement extends the term of the entitlement up to eight years from the original entitlement, with no changes to the development scope.

E. Will not adversely affect the orderly development of property or the preservation of property values; and
Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No. 20-006). The treatment of the amount of parking or revisions to the parking layout as an Administrative Amendment would not affect the orderly development of the property or the preservation of property values.

F. Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

Nothing in the Development Agreement Amendment revises the scope of the project as approved by the City Council on March 3, 2020 and April 21, 2020, in which the project was found to be in conformance with the General Plan and Zoning standards applicable to this site, as well as those standards that were amended as part of General Plan Amendment (GPA-2018-01, Resolution No. 20-006). An extension in the number of years for which the project entitlement is valid for a nd a reduction in the voluntary community amenity payments would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

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

SECTION 1. Adoption.

The Development Agreement is amended as set forth in Attachment A. 167
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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: California Environmental Quality Act.

The City Council declares that no further environmental review is necessary u nder CEQA Guidelines section 1516 2 and that the amendment to the Development Agreement is in conformance with the previously adopted Mitigated Negative Declaration ( State Clearinghouse No. 2019079010).

SECTION 4: Effective Date.

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

SECTION 5: Publication.

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

INTRODUCED at a special meeting of the Cupertino City Council on Aprl 3, 2024 and ENACTED at a regular meeting of the Cupertino City Council on April 16, 2024 by the following vote:

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Members of the City Council

AYES:

NOES:

ABSENT:

ABSTAIN:
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SIGNED:

Sheila Mohan, 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

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
Attention: City Manager
Record for the Benefit of
The City of Cupertino
Pursuant to Government Code
Section 27383

Space Above Reserved for Recorder’s Use Only

FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN CITY

OF CUPERTINO AND NORTHWEST PROPERTIES FOR THE DE ANZA HOTEL

PROJECT
This First Amendment to Development Agreement ("Amendment No. 1") is made by and between the CITY OF CUPERTINO, a municipal corporation (the "City") and Northwest Properties, a California Limited Partnership ("Developer"), and is dated for reference purposes as of _____________.

RECITALS
A. City and Developer entered into a Development Agreement dated April 21, 2020 and recorded in the Official Records against certain property described in Exhibit A (the "Project Site") identified as Document No. 24514911 ("Development Agreement").

Any capitalized term used in this Amendment No. 1 that is not defined will have the meaning given to such term in the Development Agreement.

B. The Parties acknowledge that Developer has performed all obligations required under the Development Agreement as of the date of this Amendment No. 1, including providing payments as described in Section 5.1.1.1.

C. The Parties now wish to amend the Development Agreement as set forth below.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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AGREEMENT

1. TERM OF AGREEMENT. Section 2.2 of the Development Agreement is hereby revised and restated as follows: “The ‘Term’ of this Agreement shall commence on the Effective Date and shall expire on the eight (8th) anniversary of the Effective Date, unless earlier terminated or extended by mutual written consent of the Parties hereto in accordance with the requirements of Section 8.1, below.”

2. DEVELOPMENT OF THE PROPERTY. The Development Agreement shall be amended to include a new Section 3.4.2.1, which shall read as follows: :
“Developer agrees to comply with the bird safe and dark sky ordinance , Cupertino Municipal Code Chapter 19.102: Glass and Lighting Standards.”

3. COMMUNITY AMENITY FUNDING. Subsection 5.1.1 of the
Development Agreement is hereby revised and restated as follows: “Community Amenity Funding. Developer agrees to pay City Five Hun dred Thousand Dollars ($500,000.00) in installments as described below, for City’s use in the City Council’s discretion subject to the following suggested guidelines (“Community Amenity Payment”), which payment shall be in addition to any Impact Fees otherwise due. Once paid, each installment of the Community Amenity Payment shall be nonrefundable, except as provided in Section 5.1.1.1 below.

5.1.1.1 The Community Amenity Payment shall be made in installments as follows:
(1) Within ninety (90) days after the Effective Date, Developer shall pay City a first installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(2) On or before December 1st of each year, beginning on the first Decemb er 1st after the Effective Date, until the Community Amenity Payment is paid in full, as part of each annual review and together with submission of the Annual Review Form, Developer shall pay City an installment of the Community Amenity Payment in the amount of Fifty Thousand Dollars ($50,000.00).
(3) In the event the Developer submits for a Building Permit for the core and shell of the hotel within three (3) years of the Effective Date of the 1st Amendment, the Term of the agreement is automatically extend ed for two additional years, for a total of five years. Otherwise, the Term is only extended for three years. (4) If Certificate of Occupancy for the Project is issued within five (5) years of the Effective Date of the First Amendment, Developer shall be relieved of its obligations to make further payments under Section 5.1.1.1. Nothing in this section shall constitute a 172
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refund of prior payments made under this Development Agreement. (5) In the event of a Litigation Challenge (described below in Section 9 .3), all unpaid Community Amenity Payment installments shall be postponed until final resolution of the Litigation Challenge.”

4. ADMINISTRATIVE PROJECT AMENDMENTS. Subsection 8.2.1 of the Development Agreement is hereby revised and restated as follows: “Upon Developer’s written request for an amendment or modification to the Project Approvals or Subsequent Approvals, the City Manager shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a who le; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the City Manager or his/her designee finds, in his or her sole discretion, that the proposed amendment or modification is minor, consiste nt with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the MND, the amendment or modification shall be determined to be an “Administrative Project Approval Amendment” and shall not require an amendment to this Agreement. Upon the City Manager’s approval, any Administrative Project Amendment shall be automatically incorporated into the applicable Project Approvals and this Agreement. Without limiting the foregoing, and by way of example, after City approval of the Existing Approvals, Developer requests for lot line adjustments, minor changes in improvement plans, minor changes in land uses involving minimal acreage, minor alterations in vehicle circulation patterns or vehicle access points, changes in the amount of parking and parking layout, changes in pathway alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the infrastructure connections, facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Site Map or Property Description may be treated as Administrative Project Amendments.”

5. MISCELLANEOUS. •
a. Incorporation. This Amendment No. 1 constitutes a part of the Development Agreement and any reference to the Development Agreement shall be deemed to include a reference to the Development Agreement as amended by this Amendment No. 1.
b. Effective Date. This Amendment No. 1 shall be effective on the date that it is signed by both Parties and recorded in the Official Records. c. Ratification. To the extent of any inconsistency between this Amendment No. 1 and the Development Agreement, the provisions containe d in this 173
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Amendment No. 1 shall control. As amended by this Amendment No. 1, all terms, covenants, conditions, and provisions of the Development Agreement shall remain in full force and effect.
d. Governing Law. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of California. e. Integration. This Amendment No. 1 contains the entire agreement between the Parties with respect to the subject matter of this Amendment No. 1. Any prior correspondence, memoranda, agreements , warranties, or representations relating to such subject matter are superseded in total by this Amendment No. 1.

NOW THEREFORE, the parties hereto have executed this Amendment No. 1 as of the date set forth above.
[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the City and Developer have executed this Agreement as of the Effective Date.

CITY:

CITY OF CUPERTINO, a municipal
corporation

By:

Pamela Wu, City Manager
[Signature must be notarized]
ATTEST:

By:

Kirsten Squarcia, City Clerk

APPROVED AS TO FORM:

By:

Christopher D. Jensen, City
Attorney
DEVELOPER:

NORTHWEST PROPERTIES,
a California limited partnership

By:

Name
:

Its:

By:

Name
:

Its:
[Signatures must be notarized]

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CITY OF CUPERTINO
Agenda Item
24-12952 Agenda Date: 4/16/2024
Agenda #: 8.

Subject: Award a construction contract for the De Anza Boulevard Buffered Bike Lanes Project (Project) in the amount of $529,680 and approve a budget modification in the amount of $5,533.

1. Award a construction contract for the De Anza Boulevard Buffered Bike Lanes Project (Budget Unit 420-99-262) in the amount of $529,680 to Chrisp Company;

2. Authorize the City Manager to execute the contract when all conditions have been met; and

3. Adopt Resolution No. 24-036 approving budget modification #2324-237, approving an appropriation of $5,533 in the Capital Improvement Fund (420) and a transfer of $5,533 from the Capital Reserve Fund (429) to the project (budget unit 420-99-262 900-905) for a total authorized project expenditure of $529,680.

CITY OF CUPERTINO Printed on 4/10/2024Page 1 of 1
powered by Legistar™
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CITY COUNCIL STAFF REPORT
Meeting: April 16, 2024

Subject
Award a construction contract for the De Anza Boulevard Buffered Bike Lanes Project in the amount of $529,680 and approve a budget modification in the amount of $5,533.

Recommended Action

1. Award a construction contract for the De Anza Boulevard Buffered Bike Lanes Project (Budget Unit 420-99-262) in the amount of $529,680 to Chrisp Company;

2. Authorize the City Manager to execute the contract when all conditions have been met; and

3. Adopt Resolution No. 24-XXX approving budget modification #2324-237, approving an appropriation of $5,533 in the Capital Improvement Fund (420) and a transfer of $5,533 from the Capital Reserve Fund (429) to the project (budget unit 420-99-262 900-905) for a total authorized project expenditure of $529,680.

Reasons for Recommendation
In June 2016, the City Council adopted the Bicycle Transportation Plan (BTP).

The BTP is a long-range planning document designed to address the present and future needs of bicycling within the City of Cupertino. Infrastructure projects are identified in the BTP and organized into three tiers. Tier 1 projects have the highest priority with expected implementation within five years. Tier’s 2 and 3 projects score lower than Tier 1 projects with respect to priority, however, implementation of these tiers can be initiated sooner to take advantage of funding or other opportunities, or to complement the development of other transportation improvements.

The construction of Class II buffered bike lanes on De Anza Boulevard between Homestead Road and Bollinger Road (Project) is identified in the BTP as the highest- ranking Tier 2 project. De Anza Boulevard is a major north-south principal arterial across Cupertino, a designated truck route along most of its length, and has a posted speed limit of 35 mph. Currently, standard Class II bike lanes exist along both directions of De Anza Boulevard within Cupertino, and no buffer zone exists to increase the separation between bicycle and vehicle traffic.

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The project will enhance the safety of existing Class II bikeway facilities on De Anza Boulevard between Homestead Road and Bollinger Road by narrowing existing vehicle travel lanes and installing a painted buffer zone to create separation between the bicycle lanes from the vehicle lanes. Recently the City of San Jose completed the installation of a painted buffer zone separating the Class II bike lanes from vehicle traffic lanes along De Anza Boulevard within their City limits south of Bollinger Road. The improvements from the project will enhance safety for cyclists by providing a continuation of buffered bike lanes into the City’s jurisdiction in addition to calming vehicular traffic speeds.

The Project was included in the approved Fiscal Year (FY) 2022-2023 Capital Improvement Program (CIP) budget, with a total funding amount of $525,000. The project funding was supplemented by $166,259 in funding from the Transportation Development Act Article 3 (TDA 3), administered by the Metropolitan Transportation Commission (MTC). The TDA 3 funding does not increase the overall CIP project budget but does decrease the amount of City funds required to construct the project.

The City advertised the Project for bid on February 16. On March 12, the City received one responsive bid (detailed in the table below).

Bidder Total Bid Amount
Chrisp Company $529,680.00

The Department of Public Works reviewed the Chrisp Company bid documents for completeness, confirmed the contractor’s experience and qualifications, and determined the bid to be responsible, per the Instructions to Bidders, and the Cupertino Municipal Code. Therefore, staff recommends awarding a construction contract to Chrisp Company for a total contract amount of $529,680. Since this contract amount exceeds the project funding by approximately $5,000, a budget modification will be required if this contract is awarded.

A construction contingency allows for unforeseen conditions and is a typical contracting practice. Due to the nature of the project and scope of work, staff is not recommending a construction contingency for this project.

A draft construction contract is included as Attachment A, while the full project specifications can be found on the City’s “Business Opportunities” webpage and https://apps.cupertino.org/bidmanagement/index.aspx. Construction is expected to begin in May 2024 and be completed in June 2024 in tandem with CIP Project 2020-12, De Anza Boulevard and McClellan Road/Pacifica Drive Intersection Modifications.

Sustainability Impact
The recommended improvements are intended to encourage bicycle use, which will reduce single-occupancy vehicle trips and lead to reduced vehicle emissions. This will help the City achieve air quality and greenhouse gas emission reduction goals. 178
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Fiscal Impact
The FY 2022/2023 budget allocated $525,000 for the Project, which is partially offset by grant funds received ($166,259).

Awarding a construction contract to Chrisp Company for a total contract amount of $529,680 exceeds the project funding by $5,533. A budget modification and transfer of $5,533 from the Capital Reserve Fund (429) to the Capital Improvement Fund (420) is required to address the funding shortfall.

Current Fiscal Summary:

Current Funding Status Amount
Budgeted Funds for De Anza Boulevard
Buffered Bike Lanes $525,000
TDA 3 funding allocated $166,259
Reduction of City Funding required for the
project ($166,259)
Traffic Data Collection ($800)
CEQA Filing Fee ($53)
Design (In-house) ($0)
Remaining Budget: Funding available after
Expenses/Expenditures to date $524,147

Estimated Funding Impact Amount
Estimated Construction Total (this agreement) ($529,680) Proposed Budget Modification: transfer from
Capital Reserve $5,533
Remaining Budget: projected Funding available
after Construction Contract award $0

California Environmental Quality Act (CEQA)
This project is categorically exempt from CEQA pursuant to CEQA Guidelines section 15301 (maintenance of existing facilities), as bicycle lanes previously existed within the same right-of-way of the project.

_____________________________________

Prepared by: Marlon Aumentado, Assistant 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:
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A – Draft Contract
B – Draft Resolution
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Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and Chrisp Company (“Contractor”), for work on the De Anza Blvd Buffered Bike Lanes Project (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On April 16, 2024, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below.

2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.

2.1 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda, if any;

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Specifications;

2.10 Change Orders, if any;

2.11 Notice of Potential Award;

2.12 Notice to Proceed; and

2.13 The following:
 No other documents.

3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents. Contractor agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19.

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $529,680.00 (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.

5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within 60 calendar days from the Attachment A
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commencement date given in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. If Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $3,200 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.

7. Labor Code Compliance.

7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.

7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.

7.3 DIR Registration. City may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.

8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”

9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.

10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.

11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:

City:

City of Cupertino – Public Works Department
10300 Torre Avenue
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2021 Form CONTRACT

Cupertino, CA 95014
(408) 777-7604

Attn: Chad Mosley, Director of Public Works
[email protected]

Copy to: Marlon Aumentado, Assistant Civil Engineer
[email protected]

Contractor:

Name:

Address:

City/State/Zip:

Phone:

Attn:

Email:

Copy to:

12. General Provisions.

12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.

12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.

12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Santa Clara County Superior Court, and no other place.

Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.

12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.

12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.

12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.

12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally 183
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binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporation Code § 313. 184
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The parties agree to this Contract as witnessed by the signatures below:

CITY: Approved as to form:

s/ s/

Name, Title Name, Title

Date: Date:

Attest:

s/

Name, Title

Date:

CONTRACTOR:

Business Name

s/ Seal:

Name, Title

Date:

Second Signature (See Section 12.8):

s/

Name, Title

Date:

Contractor’s California License Number(s) and Expiration Date(s)

END OF CONTRACT
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Attachment B
RESOLUTION NO. 24-XXX

A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING THE OPERATING BUDGET FOR FISCAL YEAR 2023-24 BY APPROPRIATING,

TRANSFERRING, AND UNAPPROPRIATING MONIES FOR SPECIFIED
FUNDS

WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and

WHEREAS, accomplishing City Council directives, projects, and programs, and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and

WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.

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

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 16th day of April 2024, by the following vote:

Vote Members of the City Council

AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Sheila Mohan, Mayor
City of Cupertino

________________________
Date
ATTEST:

________________________
Kirsten Squarcia, City Clerk

________________________
Date
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Attachment B
Exhibit A

Appropriation
Amendment by Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
(Use of)
Capital Improvement Fund
(420)
5,533 5,533 -
Capital Reserve (429) 5,533 - (5,533)
Total Appropriation
Amendment All Funds $11,066 $5,533 $(5,533)

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CITY OF CUPERTINO
Agenda Item
24-13008 Agenda Date: 4/16/2024
Agenda #: 9.

Subject: Approve a fifth amendment with Moore Iacofano Goltsman, Inc. (MIG) to provide additional design and project management services for the Lawrence-Mitty Park and Trail Project for a total not-to-exceed amount of $955,403 and extend the contract date to December 31, 2027.

Authorize the City Manager to execute a fifth amendment (Agreement #402, P.O 2022-0325) with MIG to extend the contract term end date to December 31, 2027, and to provide additional design and project management services on the Lawrence-Mitty Park and Trail Project, for a revised total and additional service amount of $661,619, increasing the maximum compensation amount to $955,403.

CITY OF CUPERTINO Printed on 4/10/2024Page 1 of 1
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CITY COUNCIL STAFF REPORT
Meeting: April 16, 2024

Subject
Approve a Fifth Amendment with Moore Iacofano Goltsman, Inc. (MIG) to provide additional design and project management services for the Lawrence-Mitty Park and Trail Project for a total not-to-exceed amount of $955,403 and extend the contract date to December 31, 2027.

Recommended Action
Authorize the City Manager to execute a fifth amendment (Agreement #402, P.O. 2022- 0325) with MIG to extend the contract term end date to December 31, 2027, and to provide additional design and project management services on the Lawrence-Mitty Park and Trail Project, for a revised total and additional service amount of $661,619, increasing the maximum compensation amount to $955,403.

Reasons for Recommendation
The initial contract with MIG included services through the end of conceptual design and California Environmental Quality Act (CEQA) reporting. The project is funded through a private development agreement, and funds are currently adequate to ensure completion of design and construction. The project is ready to advance to the preparation of design, construction documentation, and eventually construction. To do this, additional services are required for MIG to continue into the next stages of this project.

Background Information
In Fiscal Year (FY) 2015-16, a private development agreement was executed that allowed for the purchase and annexation of the Lawrence-Mitty project site. The original private development agreement stated: “…the parties agree that the sum of Eight Million Two Hundred Seventy Thousand Nine Hundred Ninety-Four Dollars ($8,270,994) (the "Park Land Contribution") constitutes sufficient funds to acquire 1.1 acres of parkland, improve it with park equipment and provide a maintenance and capital replacements endowment for twenty (20) years…”

On December 7, 2021, the City of Cupertino contracted with MIG to develop a Master Plan for the Lawrence-Mitty Park and Trail Project (Project). The staff report from that 189
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agenda item stated that the outcome of this project will be a City-approved Master Plan for Lawrence-Mitty Park and Trail and is completion of the CEQA clearances required to proceed with the development of the park.

The new conceptual design is based on site analysis, community input, and the directives of the Parks and Recreation System Master Plan (PRSMP). MIG led the City and the community through two years of on-site meetings, pop-up events, commission meetings, City Council meetings, surveys, reports, design presentations. Through the iterative creative process, the conceptual design for the Project, including preparation of environmental documentation, is nearing completion. The conceptual design and environmental clearance are tentatively scheduled to be presented to City Council this summer.

Council approved the agreement with MIG in 2021 for $293,784 to enable preparation of the conceptual design and CEQA report, with $50,000 approved contingency. To date, that agreement has been amended four times, including additional services totaling $48,035. This falls within the $50,000 approved contingency.

The design and construction of the Project through this amendment will include design development, regulatory permitting, construction documentation, City permitting, bid support, and construction administration. The projected duration of the remainder of the project will extend to the Summer of 2027. The MIG fee proposal for these tasks over a two-year duration is $511,320 (Attachment A, see Exhibits A-4, B-1, and C-1). A 20% contingency, rather than typical 10% contingency, is recommended to allow the Project team to address and respond to unknown issues that may be encountered during the extensive environmental review process. A 20% contingency would increase the funding request to $613,584. This is approximately 16% of the overall project cost. Design and Engineering costs typically fall within 15% to 20% of the overall project cost. Since the overall design of the Project falls within this range and also includes preparation of the Master Plan, staff believes the design costs are reasonable.

To further support the Project, staff proposes transferring funds from Contract Services (budget unit 280-99-009 700-702) to Capital Outlays (budget unit 280-99-009 900-905). In the FY 2021-2022 mid-year Financial Report to the City Council (March 8, 2022), one of the budget adjustments accepted was a one-time special revenue fund appropriation of $910,000 for Lawrence‐Mitty Park Debris Removal, Clean Up, and Tree Removal. This was intended to be a special project to remove berms and general clean-up and to address encampments arising on site. The project team evaluated the project in the context of the design work underway and advised that it was likely redundant and counter-productive to remove the berms before the conceptual design work was completed. Transferring the remainder of the funds allocated for the special project ($901,285) to the CIP project fund is recommended since the berm work will be incorporated into the design and construction of the park and trail.

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Sustainability Impact
This project aligns with multiple objectives outlined in Chapter 6 (Environmental Resources and Sustainability) of the City’s General Plan, Community Vision 2015-2040.

In particular, the development of the Lawrence-Mitty site will emphasize elements of Goal ES-5 which is to protect the City’s urban and rural ecosystems.

Fiscal Impact
The CIP project budget (budget unit 280-99-009) presently has $5,946,859 available to apply to this project. The project team is designing the park and trail project to this budget. See the table below for more information on the impact of the proposed contract amendment.

Fiscal Summary:

Project Funding Status Amount
Approved City Funding (FY18-19) $8,270,994
Council approved budget increased on March
8,2022
$910,000
Property Purchase and Escrow ($2,697,694)
MIG: paid to date (includes 4 amendments) ($341,819)
Other Expenses: paid to date ($194,622)
Funding available for CIP project (design &
construction)
$5,946,859

Funding Impact Amount
MIG: Additional Services (Amendment 5)
 Fee Proposal $511,320 + 20% ($613,584)
Funding available for Construction and other
soft costs
$5,333,275

California Environmental Quality Act
The CIP project is undergoing an Initial Study. CEQA analysis will be completed at an appropriate time, prior to a commitment to project design. _____________________________________

Prepared by: Susan Michael, Capital Improvement Programs Manager 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 – Draft Contract

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FIFTH AMENDMENT TO AGREEMENT 402

BETWEEN THE CITY OF CUPERTINO AND MIG, INC

FOR LAWRENCE-MITTY PARK AND TRAIL

IMPLEMENTATION PLAN
Attachment A
This Fifth Amendment to Agreement 402 is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and MIG, Inc. a Corporation ("Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:

RECITALS:

A. On December 09, 2021 Agreement 402 ("Agreement") was entered into by and between City and Contractor for Lawrence-Mitty Park and Trail Implementation Plan.

B. The City and Contractor entered into a First Amended Agreement for Lawrence-Mitty Park and Trail Implementation Plan ("First Amendment") effective February 28, 2022.

C. The City and Contractor entered into a Second Amended Agreement for Lawrence-Mitty Park and Trail Implementation Plan ("Second Amendment") effective August 25, 2022.

D. The City and Contractor entered into a Third Amended Agreement for Lawrence-Mitty Park and Trail Implementation Plan ("Third Amendment") effective October 13, 2022.

E. The City and Contractor entered into a Fourth Amended and Reinstated Agreement for Lawrence-Mitty Park and Trail Implementation Plan ("Fourth Amendment") effective March 27, 2024.

F. The Original Agreement, First Amendment, Second Amendment, Third Amendment and Fourth Amendment are collectively referred to as the "Agreement" unless otherwise indicated.

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

1. Paragraph 3.1 Term of the Agreement is modified to read as follows: This Agreement begins on the Effective Date and ends on December 31, 2027, unless terminated earlier as provided herein ("Contract Time"). The City's appropriate department head or 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. Schedule of Performance, Exhibit B of the Agreement is modified to include Exhibit B-1 Additional Services, attached hereto. 1 192
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Attachment A

2. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:

City will pay Consultant for satisfactory performance of the Basic Services and Additional Services, if approved, a cumulative total amount that will be capped so as not to exceed $955,403.00 ("Contract Price"), as specified in Exhibit C and Exhibit C-1, Compensation, attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. Description of Services, Exhibits A, A-1, A-2, and A-3 of the Agreement are modified to include Exhibit A-4 Additional Services, attached hereto. Compensation, Exhibit C of the Agreement is modified to include Exhibit C-1 Additional Services, attached hereto.

3. Paragraph 4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed $661,619.00 Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis, Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge ("Reimbursable Expenses"). Consultant will not be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. Description of Services, Exhibits A, A-1, A-2, and A-3 of the Agreement are modified to include Exhibit A- 4 Additional Services, attached hereto.

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.

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

CITY OF CUPERTINO MIG, INC.

By _________ _ U#-}~ By _________ _
Title Title Vice President and Chief Development Officer -----------
Date Date Apr 4, 2024 -----------

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date _____ _____ _
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Attachment A
EXPENDITURE DISTRIBUTION - - ·-· - - - -
Item
'~
PO Number
I
Amount

I - - - - - - - - -
Original Agreement 2022-325 293,784.0~
Amendment No. 1
I
Increase Compensation $28,500.0~
Amendment No. 2
I
Update Scope of Work -
Amendment No. 3
I
Increase Compensation $19,535.0~
Amendment No. 4
I
Extend Term and Reinstate -
Amendment No. 5
I
Extend Term & Increase Compensation
I $613,584.0~
Amendments Subtotal I $661,619.0~
Total Contract Amount L __ $955,403.0~
- --- --
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EXHIBIT A-4
Lawrence Mitty Park and Trail
Scope of Work

03.12.2024
MIG has prepared the following Scope of Work to illustrate how we will facilitate successful completion of the Lawrence Mitty Park and Trail Project. This scope captures and clarifies assumptions of the tasks incorporated in the attached Fee Proposal spreadsheet. The details are based on our understanding of the City's desire to move forward with the concept plan shown below from December 2023 and its related and ongoing CEQA work. Note that the potential restroom is not included in this scope. (!)4. CONCEPT PLAN

NORTH PARK AND TRAIL CO NCEPT GRAPHIC
Ped~Jt-ior> !!ridge to EY!!llnG bor,t
Sierl n::, So tr1h0r· Pc:11: skbi~:::JliQl'l
jbi1ting) hcil P-,dedr icn
cortin i ... s Uonhg to
~CUM MittyW~
'fl u."lt,l1 th<.'lT'-"t.'k:iiJ<."th.-.:.k<.Jver k•C1.k"'illt':..t<'.'l1J ,1,·.::r lhc t,,p ·"- b,li1k. lhc r,1u11d ,1lio.l rl .,11.:t ~llf'P,'t'L t>e.1m-,; fur the d\'l.k will i,.,. pl<1® ,mtir..! y '-'11t::.ido1 ~,f lhc t,;,p <lfb,lflk t,, rulnimi7.c Jn,p,'1<:L~ to ..:reek habit,ll .

I ij,l.hlilljl, i~ n,.1 pl,mm•d ,111,: lo i i- ddr,m,-.1 tul l!ff,c'(t <!II wild Iii;., 'I h.-~lq.:tio n 01a~· bt' 1't a tutur~ r<!!<lr,X"m, whid, ~ .;lo«~ l,> lhc c,pr~~w.l~ '·
cry of Cvperlirro
CONCfPf !Kif NP
--- Pot~ 3ourdc1y
c::J !:iorolo,;,a (;r;,,e ~ {OHVIM;
Topofacrw:

Ex.ting Veg•lollon:
c::::J Ppu'ioo lQnot1
C)1 reeCi)l"\C f::Y!b:ii;tnQ)
!rs~ Root ,:.,01a-clion lone
PHASE 8: DESIGN DEVELOPMENT /30% CDS:

M- V•g•lolion :
~ r10, rf>·opcut-dJ
-Stormwat•:,r1-.rem
- Noli...,,,/0.rnate Ad c.10l-!!d Plonfir 1,
Im Open Meudcrw Sp;Jc~
Circulo lioo:

Gated Entror.ce
Monte nance/
Emergency Accei:1
l1tcre-ollol'l f«iiuf fl:
c::::J ?loy ,a.ao
CUPl!ltTINO
~ Cre&k/Jde Dect C"o¼l'loo~
~ cie.-1·1KJ!! Sea•1ch Ov,;,rtcok
~ SI-OfX:l1 Se<aling I P!;'.nir: T ~o
ln•pin:,OQn lmog••:
© $o:ie·rro'i,)scolOQ-&
tawreoc e- Mitty r orlt and Troil Cor>cepl Plan I 14
MIG team will create a Design Development/30% CD submittal based on December 2023 concept plan, shown above and without the potential restroom. The City will provide any City-required standard details, titleblocks, requirements, and specifications to the MIG team at the beginning of this phase. All submittals will be in the form of a PDF submitted through email, Google drive, or other free and readily available digital sharing format approved by The City.

Task 8.1 Opinion of Probable Cost
The MIG Team will develop an Opinion of Probable Costs based on the concept plan above to serve as a baseline for 30% effort and confirm the design is within the construction budget. 1 196
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EXHIBIT A-4
Task 8.2 Costing City Check-in Meeting
MIG will facilitate a virtual meeting with City staff to review the cost estimate relative to construction budget and confirm changes and/or minor refinements needed for the 30% set. A summary of the meeting will be prepared.

Task 8.3 Design Development/ 30% CD Plans
The MIG Team will prepare preliminary plans in AutoCAD showing the layout of proposed park and trail elements, including paving, site furnishings, planting areas and other site features . This includes utility reports for capacity studies and earthwork study .

Task 8.4 Opinion of Probable Cost
The MIG Team will develop an Opinion of Probable Costs based on the 30% plans.

Task 8.5 Preliminary CD City Review Meeting
MIG will facilitate a virtual meeting with City staff to review consolidated comments on the preliminary plans to clarify questions and confirm corrections or minor refinements needed for the 60% set. A summary of the meeting will be prepared.

Task 8.6 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties related to these tasks for the rough schedule noted on the accompanying fee spreadsheet.

TASK 8 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. We assume one round of minor revisions for each based on the City's consolidated comments.
■ Concept Plan Opinion of Probable Costs
■ Preliminary 30% CD Plans and Opinion of Probable Costs ■ City Review Meetings Agendas & Meeting summaries
■ Monthly invoices
PHASE 9 TASK: REGULATORY PERMITTING
Task 9.1 Project Design Review and Impact Evaluation
Based on the newest version of the project design, potential impacts shall be reviewed to ensure that permit requirements are met. MIG will work with the Client to accurately identify, assess, and calculate temporary and permanent impacts to jurisdictional habitats on the project site. MIG will calculate the acreages of permanent and temporary disturbances to the jurisdictional habitats within the project site. MIG will also evaluate the drainage calculations and drainage plans prepared for the project to characterize the amount of hydromodification proposed, evaluate potential impacts on water quality, and provide recommendations for Best Management Practices (BMPs) to minimize impacts.

Task 9.2 Pre-Application Regulatory Agency Consultation (CDFW and RWQCB only) The purpose of this task is to discuss the project with regulatory agencies to learn of any concerns and ensure that we provide all relevant information in application packages. Since the proposed project will not impact Saratoga Creek below the Ordinary High Water Mark (OHWM), the project does not require authorization from the U.S.

Army Corps of Engineers (USACE). However, the project may require authorization from California Department of Fish and Wildlife (CDFW) and Regional Water Quality Control Board (RWQCB) for potential impacts to riparian habitat within top of bank of the creek. In our experience, early coordination with the regulatory agencies can assist in expediting the permit approval process by addressing technical questions and comments early in the planning process which will limit delays during application review. MIG shall coordinate with the CDFW and RWQCB via email, and if appropriate through a virtual or in person meeting. Activities include coordination to discuss the project, present the potential impacts of the project, propose impact avoidance and mitigation measures, and address potential permitting requirements . After coordinating with regulatory agencies, if any new 2 197
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EXHIBIT A-4
requirements arise, we will provide the Client with an updated permitting timeline based on the anticipated agency requirements.

Task 9.3 Prepare Regulatory Permit Application Packages (CDFW and RWQCB only) Based on our understanding of resource agency jurisdiction, the project likely requires authorization from the RWQCB and CDFW. The project does not require authorization from the U.S. Army Corps of Engineers (USACE) since project activities are outside of creek channel and above the ordinary high water mark (OHWM}. Both RWQCB and CDFW require authorization for any project within the bed, bank, or channel of a stream; and/or within associated riparian habitat . The RWQCB may also exert jurisdiction of areas within the 100-year flood plain, even if these areas are beyond the top of bank or riparian habitat . The proposed project includes activities within the bank of the creek and associated riparian habitat .

This scope of work assumes that MIG will prepare the appropriate permit application packages, including a Notice of Applicability (NOA) for enrollment under a General Waste Discharge Requirement Order (WDR) for the RWQCB and a Section 1600 Notification of Lake and Streambed Alteration for the CDFW.

Once the 60% design is available, MIG will prepare the appropriate permit application packages. Application packages will include the permit application form, engineering drawings, and the following information :
• Description of the overall project , including a site plan and other project plans. The agencies will require 60% design plans.
• Surface area in acres of waters of the U.S. and state, adjacent wetlands, and adjacent riparian vegetation that will be impacted by the proposed project.
• Describe the actions proposed within the jurisdiction of each agency. • Method of vegetation clearing (if any) within the project area. • Cross-section and lateral view of the project plan.
• A description of water diversion methods (if any).
• BMPs incorporated into the project to prevent impacts to water quality and biological resources. • Biological Resources Assessment.
• Hydrology and Hydraulic study (if needed).
• Alternative Analysis (if applicable)
• Mitigation and Monitoring Plan
• Final CEQA documentation, including the Notice of Completion (NOC). • Permit application fees. MIG will determine the cost of the permit fees, but the Client is responsible for the payment of all permit application fees.

We will coordinate with the City and team to provide the following information :
• Site plans.
• Volume of cut/fill and composition of materials removed/added during grading in jurisdictional areas. • Cross-section drawing of the project design.
• A Stormwater Pollution Prevention Plan (SWPP) and/or BMPs to prevent water pollution. • Estimated project costs (to determine permit application fees). • CEQA Notice of Completion (NOC).

Task 9.4 Permit Application Follow-up and Response
In MIG's experience, it is essential to provide consistent outreach and coordination with the regulatory agencies once the permit applications are submitted . Outreach efforts can help streamline permitting and avoid delays due to requests for additional information or to simply answer questions regarding the applications that the agencies may have instead of waiting for a written response to reply to. MIG will diligently negotiate permit conditions and coordinate with the regulatory agencies via phone or email in order to keep the permitting process on track. This scope of work assumes no more than 16 hours will be required to coordinate with the agencies and secure the permits.
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EXHIBIT A-4
Task 9.5 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties related to these tasks for the rough schedule noted on the accompanying fee spreadsheet.

Task 9 Deliverables:
■ Appropriate permit application packages
■ Notice of Applicability (NOA) for enrollment under a General Waste Discharge Requirement Order (WDR) for RWQCB
■ Section 1600 Notification of Lake and Streambed Alteration for CDFW ■ Monthly invoices
PHASE 10: CONSTRUCTION DOCUMENTS (CD)
The MIG Team will prepare design plans, construction documents, specifications and opinions of probable costs at the milestones noted below.

Task 10.1 60% CD Submittal
The MIG Team will prepare construction documents to a 60% level of completion, drafted in digital format using AutoCAD. Plans shall be prepared at a minimum of 1" = 20' scale. As part of the package, the MIG Team will develop a materials and equipment schedule reflecting site material, equipment and furnishing selections so the City can review the new park's proposed aesthetic vision .

This scope assumes the development of one set of construction drawings for a single-phase project. If the City's budgeting results in the need for phasing or alternates, these can be provided for an additional fee.

Task 10.2 60% CD Opinion of Probable Costs
The MIG Team will develop an Opinion of Probable Costs based on the submitted plans.

Task 10.3 60% CD City Coordination/ Assistance (Allowance) The MIG Team has a small allowance to allow for coordination for City reviews such as ADA review, stormwater, and the maintenance department . (Note: work related to regulatory permitting is included in Phase 7).

Task 10.4 City Review Meeting
The City will provide one set of consolidated review comments detailing the required changes to the 60% CD drawings and opinion of probable costs. These will be discussed in a two-hour (maximum) virtual meeting between the City and MIG to confirm design direction before beginning the 95% CD package.

Task 10.5 95% CD Submittal
Based on the 60% CD's submittal and incorporating the City's direction from the 60% CD review meeting , the MIG Team will prepare construction documents to a 95% level of completion. The MIG Team will also provide CSI format technical specifications related to the scope of work. The City will be responsible for providing the Division I/front end/project manual specifications sections but an allowance has been made to assist the City with front end project description, bid schedule and minor edits to project manual. Design documentation, including specifications, will be consistent with required federal, state, and local codes and regulations.

Task 10.6 City Review Meeting
The City will provide one set of consolidated review comments detail ing any required changes to the Design 95% CD package prior to submitting for City permits . These will be discussed and finalized in a two-hour (maximum) virtual meeting between the City and MIG prior to submitting the permit set.

Task 10.7 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties related to these tasks for the rough schedule noted on the accompanying fee spreadsheet. 4 199
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EXHIBIT A-4
TASK 10 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format . • 60% CD Submittal - Drawings and Spec TOC
• 60% CD Opinion of Probable Costs
• 95% CD Submittal - Drawings and Specs
• Monthly invoices
PHASE 11: CITY PERMITTING/100% CONSTRUCTION DOCUMENTS {CD) The MIG Team will lead City permit applications.

Task 11.1 and 11.2 City Permit Application and 100% CD/Permit Set The MIG Team will take the lead on City permit applications. First review submittal will include 95% documents with City review comments. It is assumed that all City 95% and permit first round of review comments will be resolved to permit satisfaction with the second round of documents for permit review and that those documents will be used for public bid. Based on the City's 95% review comments and permit first review comments, the MIG Team will create a permit review delta clouded set of drawings and specifications that will be used for public bid process. The MIG team assumes that multiple permit packages are not required and that 100% construction documents will comprise the construction permitting set. The MIG Team will package the 100% complete construction documents and submit to the City for final review and comment (PDF format).

Task 11.3 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties related to these tasks for the rough schedule noted on the accompanying fee spreadsheet.

TASK 11 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. • City Permit Application
• 100% CD/Permit Drawing Set - Drawings and Specs
• Monthly invoices
TASK 12: BIDDING SUPPORT
Task 12.1 Pre-bid Meeting
MIG will attend the pre-bid meeting to respond to questions about the Construction Documents.

Task 12.2 Bid Assistance Allowance (Bidder Question Response) The MIG Team has made an allowance to prepare responses to bidders' questions to clarify the construction documents .

Task 12.3 Conformed Construction Set Submittal
Once the bid period is complete and the contractor has been selected, the MIG Team will prepare a final conformed set for the contractor's use during construction . The conformed construction set will incorporate the addenda and responses to bidders' questions.

Task 12.4 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties related to these tasks for the rough schedule noted on the accompanying fee spreadsheet.

TASK 12 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. 5 200
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EXHIBIT A-4
• Responses to Bidders' Questions
• Conformed Construction Set
• Monthly invoices
No allowance has been made for any value engineering at the Bid Phase. Should bids come in higher than anticipated due to unforeseen market conditions, the MIG Team will meet with the Client to discuss options to move the project forward . Any additional design, coordination or submittals can be provided for additional services.

TASK 13: CONSTRUCTION ADMINISTRATION
Task 13.1 Preconstruction Meeting Participation
The MIG Team will attend and participate in a Pre-Construction meeting scheduled and lead by the City. The MIG Team will attend the meeting to support the City in answering the contractor's questions. This scope assumes attendance by the lead landscape architect and civil engineer. If needed, other design team members can be made available through additional services.

Task 13.2 Responses to Contractor Submittals
The MIG Team will review and take appropriate action (approve with modifications, reject, etc.) on the Contractor's submittals such as RFl's, Shop Drawings, Product Data and Samples, to confirm conformance with the design intent of the project and compliance with the information given in the Contract Documents . Reviews will take place in accordance with reasonable promptness and according to language agreed upon in the bid documents. Reviews and approvals or other action shall not extend to means, methods, techniques, sequences, or procedures of construction or the safety precautions and programs incident thereto . Approval of a specific item shall not indicate approval of an assembly of which the item is a component. The MIG Team has made an allowance for assistance with these efforts and will keep the City apprised of efforts. As construction continues and additional assistance be needed and existing budget be expended, additional reviews or effort can be provided through additional services.

Task 13.3 Construction Meetings and Site visits
MIG will attend up to (4) construction meetings to review construction progress and Contractor's compliance with the design intent. These meetings can be virtual or on-site, depending on current safety measures. In addition, MIG will perform up to (8) site visits and the Civil engineer will perform up to three (3) site visit/reviews, as requested by City. Task assumes a maximum construction duration of ten months .

Task 13.4 Preliminary Punch List Site Visit and Preparation When notified that the construction is substantially complete, the MIG team will make one site visit with the City's representative and perform a Preliminary Punch List inspection of the Project to observe any apparent defects in the completed construction regarding conformance with design intent of the Contract Documents. MIG will consolidate observations and provide a "punch list," describing the items it recommends for the contractor's correction prior to scheduling the Final Punch List Site Visit.

Task 13.5 Final Punch List Site Visit and Preparation
When notified that the construction is fully complete, the MIG team will make one site visit with the City's representative and perform a "Final" inspection of the Project to observe any apparent defects in the completed construction regarding conformance with design intent of the Contract Documents. MIG will consolidate observations and provide a Final Punch List, describing the items it recommends for the contractor's correction prior to closing out the construction contract.

Task 13.6 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties as described in Task 1 and with additional meetings as noted on the accompanying fee spreadsheet. 6 201
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EXHIBIT A-4
TASK 13 DELIVERABLES
Unless otherwise noted , all deliverables will be provided in PDF format . • Submittal and Shop Drawing review documentation
• Responses to contractor's Requests for Information
• Construction Meetings - (up to 4)
• Site Visits - (up to 11)
• Preliminary Punch List
• Final Punch List
• Monthly invoices

ADDITIONAL SERVICES
The MIG Team has a broad range of experience, skills and services. The following is a non-exhaustive list of items that are not included in this scope but could be provided as additional services if they are needed or desired by the City:
• Any public meetings including but not limited to community meetings or engagement, attending City Council meetings, public hearings, hearing examiner meet ings, public open houses, and local association meetings.
• City project team meetings beyond those listed
• Additional design alternative drafts or renderings other than those listed. • Preparation of phased or multiple-packaged construction documents. • Preparation of special studies outside our scope of work. • Intensive research and testing to determine conditions of existing site utilities (i.e., potholing, smoke testing , dye testing, pressure testing , fire flow testing, videotaping, etc.). • Utility Relocation Plans
• Supplemental surveying services beyond the initial survey necessary for completeness . • Appeal, Design Exception, and Alternative Review applications . • Services related to future facilities and improvements. • Design of water capture/re-use systems, pump stations, sump pumps, or force mains for sanitary sewer or storm drainage systems, if required .
• Design of systems to comply with or obtain LEED certification, including preparation of LEED documentation and addressing review comments from the USGBC. • Redesign of civil/landscape items following completion of construction document as a result of site and building plan changes or unforeseen existing conditions . • Design for areas not identified in the project understanding . • Value Engineering. If the MIG Team is needed to assist with VE and/or bid negotiations , it is available on a Time and Materials basis.
• Project Record Drawings
PROJECT SCOPE ASSUMPTIONS:
• CLIENT: 'The City' refers t o the City of Cupertin o's Lawrence Mitty project team. • BUDGET: Scope and fee is based on a construction budget of $3,900,000 ($3,500,000 base budget w ith a 10% contingency) . Redesign to value engineer the project will require a contract modificat ion. • DELIVERABLES: Unless oth erwise indicated, all deliverables will be provided in PDF format. Native files will be created in software selected at the consultant team's discretion . If the City desires printed copies or specific file formats, the MIG Team is happy to work with t he City to develop a strategy that meets the project's budget and needs.
• VIRTUAL MEETINGS: Team meetings are assumed to be virtual with in-person meetings limited to noted 7 202
CC 04-16-2024

EXHIBIT A-4
site visits.
• T RANSLATION: All documentation will be in English; howev er, as an addit ional service, th e MIG Team can provide exhibits in oth er languages.
• CONSOLIDATED COMMENTS: The City will provide MIG with (1) set of vetted and consolidated comments from all parties/agencies in all tasks involving review and feedback . • PERMIT FEES: All permit fees and agency charges will be paid by others . • UTILITIES: The site is adequately served by utilit ies adjacent to the site. • OFFSITE UTILITIES/STREET/PARKING DESIGN: Offsite utility or street/parking design is not included in this proposal.
• ENVIRONMENTAL WORK: Floodplain, wetland, soil remediation or environmental work is not included in this proposal.
• CONSTRUCTION TESTING+ INSPECTIONS: Necessary testing and inspections during construction will be provided by others .
• ALLOWANCES: Allowances have been made for cost estimation and limited anticipated electrical and structural support ; should additional support be needed as the design is refined , additional fees will be needed .
• CONTINGENCY: A design contingency has been included to address out of scope items or additiona l effort requests . Use of contingency will be coordinated and authorized by the City prior to related efforts .

A rough project schedule is noted in Exhibit B.

Estimated Project Costs are noted in Exhibit C.

NOTE: Our understanding is that the City typically keeps 10% of the construction budget as a contingency. Given the project is currently in CEQA review, regulatory permits will be needed, and that there are technical complexities with the site, we highly recommend that the City holds a 20% contingency based on construction budget to address potential additional project needs beyond the scope noted above. 8 203
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EXHIBIT 8-1
Lawrence Mitty Park and Trail
Schedule

03.12.2024
The following is a high level schedule for the main tasks outlined in the Scope of Work. A more detailed schedule will be coordinated with City staff once CEQA review is completed, assumed to be June 2024.

Task 8: Design Development/30% CDs - (2 months) - July/ August 2024 Task 9: Regulatory Permitting - (7 months) - September 2024 - March 2025 Task 10: Construction Documents - (6 months) - April - September 2025 Task 11: City Permitt ing - (2 months)- October/November 2025 Task 12: Bidding Support - (2.5 months) - December 2025-February 2026 Task 13: Construction Administration - (12 months) - March 2026-March 2027 1 204
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y Park and rail
ect cost
24 $5,040 80 $14,400 $0 120 $14,400 $4,060 $0 $0 $0 $37,900 $25,000 $3,0 $210 4 $720 $0 6 $720 $0 $0 $0 $0 $1,650
4 $840 6 $1,080 $0 6 $720 $0 $0 $0 $0 $2,640
·A coordination) 8 $1,680 16 $2,880 $0 16 $1,920 $0 $0 $0 $0 8 $7,120 Subtotal 40 $8,400 114 $20,520 0 $0 154 $18,480 34 $4,930 0 $0 0 $0 0 $0 8 $52,970 $25,000 $0 $3,0 $0 2 $360 50 $10,250 $0 $0 2 $360 2 i $240 $55 $11,265
'J and RWQCB only) $0 $360 2 $410 2 $240 $0 3 I $540 2 $240 $55 $1,845 W and RWQCB only) $0 4 $720 10 $2,050 $0 $0 50 $9,000 20 $2,400 $110 $14,280 $2,000 $0 4 $720 4 $820 10 $1 ,200 $0 12 $2,160 $0 $0 $4,900
4 $840 8 $1,440 0 $0 14 $1 ,680 $0 $0 $0 $0 4 $4,280
Subtotal 4 $840 20 $3,600 66 $13,530 26 $3,120 0 $0 67 $12,060 24 $2,800 $220 4 $36,570 $2,000 $0 8 $1,680 80 $14,400 0 $0 120 $14,400 28 $4,060 $0 $0 $0 $34,540 $22,000 $3,0 $420 4 $720 $0 8 $960 $0 $0 $0 $0 $2,100
2 $420 8 $1 ,440 $0 8 $960 $0 $0 $0 $0 $2,820
$420 $540 $0 4 $480 $0 $0 $0 $0 9 $1,440
8 $1,680 60 $10,800 12 $2,460 120 $14,400 28 $4,060 $0 $0 $0 $33,400 $22,000 $4,0 2 $420 4 $720 $0 8 $960 $0 $0 $0 $0 $2,100
6 $1,260 12 $2,160 $0 12 $1,440 $0 $0 $0 $0 6 $5,340
Subtotal 30 $6,300 171 $30,780 12 $2,460 200 $33,600 56 $8,120 0 I $0 0 0 $0 6 $81,740 $44,000 $0 $7,0 24 $5,040 60 $10,800 0 $0 60 $7,200 16 $2,320 $0 $0 $0 $25,360 $2,000 $2,0 8 $1,680 40 $7,200 8 $1,640 120 $14,400 28 $4,060 $0 $0 $0 $28,980 $8,000 $3,000 $3,0 6 $1 ,260 18 $3,240 $0 12 $1,440 $0 $0 $0 $0 8 $6,580
Subtotal 38 $7,980 118 $21,240 8 $1,640 192 $23,040 44 $6,380 0 $0 0 $0 0 $0 8 $60,920 $10,000 $3,000 $5,0 $0 6 $1 ,080 $0 6 $720 $145 $0 $0 $0 $1,945
Addenda) $210 6 $1,080 $0 6 $720 $145 $0 $0 $0 $2,155 $2,500 $1 ,0 $210 8 $1,440 $0 32 $3,840 12 $1,740 $0 $0 $0 $7,230 $2,500 $1,0 3 $630 12 $2,160 $0 6 $720 $0 $0 $0 $0 3 $3,750
Subtotal 5 $1,050 32 $5,760 0 $0 50 $6,000 14 $2,030 0 $0 0 $0 0 $0 3 $15,080 $5,000 $0 $2,0 $0 8 $1,440 $0 $0 $0 $0 $0 $0 $1,440
4 $840 100 $18,000 0 $0 60 $7,200 16 $2,320 $0 $0 $0 $28,360 $10,000 $2,0 16 $3,360 100 $18,000 0 $0 12 $1 ,440 20 $2,900 $0 $0 $0 $25,700 $1 ,0 $210 10 $1 ,800 $0 $0 10 $1,450 $0 $0 $0 $3,460
$210 10 $1,800 $0 $0 10 $1 ,450 $0 $0 $0 $3,460
10 $2,100 40 $7,200 $0 $0 $0 $0 $0 $0 10 $10,100
Subtotal 32 $6,720 268 $48,240 0 $0 72 $8,640 56 $8,120 0 $0 0 $0 0 $72,520 $10,000 I
"
:;1 :, ::, . :,, , Ill
205
CC 04-16-2024

EXHIBIT C-1: Hourly Rates and Reimbursable Expenses
Lawrence Mitty Park and Trail Plan, Cupertino, CA
March 2024
EXHIBIT C-1
Unless specified otherwise, invoices are submitted monthly showing time and charges for professional services by staff category and a separate figure for expenses. Invoices are payable upon receipt . Invoices unpaid past 30 days are subject to interest at 1-1/2% per month. MIG Inc. labor includes all overhead .

Hourly rates by position are noted below:

Role
Pri ncipa I-in-Charge
Project Manager
Irrigation Designer
Landscape Designer
CEQA/Environmental, Principal
CEQA/Environmental, Director
CEQA Project Manager
Permitting PM
Senior Biologist/Senior Analyst
Biologist/Noise Analyst/GIS
Project Support
Project Assistant
Expenses are as follows :

Type
Automobile travel
Meals
Photocopy (letter and tabloid}
Color copies (letter and tabloid}
Commercial printing/plotting
Subcontractors
Other (lab tests, aerial photos, etc}
$/hour
$210
$180
$145
$120
$220
$195
$180
$205
$180
$120
$120
$80
Rate
current IRS rate
cost+ 5%
$0.10/print
$0.50/print
cost+ 5%
cost+ 5%
cost+ 5%
206
CC 04-16-2024

FOURTH AMENDMENT TO AGREEMENT 402

BETWEEN THE CITY OF CUPERTINO AND MIG, INC

FOR LAWRENCE-MITTY PARK AND TRAIL

IMPLEMENTATION PLAN
This Fourth Amendment to Agreement 402 between the City of Cupertino and MIG, Inc. is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and MIG, Inc, a Corporation ("Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:

RECITALS:

A. On December 09, 2021 Agreement 402 ("Agreement") was entered into by and between City and Contractor for Lawrence-Mitty Park and Trail Implementation Plan.

B. The City and Contractor entered into a First Amended Agreement for Lawrence-Mitty Park and Trail Implementation Plan ("First Amendment") effective February 28, 2022.

C. The City and Contractor entered into a Second Amended Agreement for Lawrence- Mitty Park and Trail Implementation Plan ("Second Amendment") effective August 25, 2022.

D. The City and Contractor entered into a Third Amended Agreement for Lawrence- Mitty Park and Trail Implementation Plan ("Third Amendment") effective October 13, 2022.

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

F. City and Contractor to continue Contractor's services to the City under the Agreement, and hereby affirm their intent that it remain in full force and effect as amended and reinstated by this Fourth Amendment.

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

1. Paragraph 3.1 of the Agreement is modified to read as follows: Term. This Agreement begins on the Effective Date and ends on June 30, 2026, unless terminated earlier as provided herein ("Contract Time"). The City's appropriate department head or 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. 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
1 207
CC 04-16-2024

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

CITY OF CUPERTINO
ByP~wu
Title City Manager
Date Mar 27, 2024

APPROVED AS TO FORM
ChYisfopher D . .Tensen
City Attorney
ATTEST:

City Clerk
Date Mar 27, 2024

MIG, INC
Title Vice President and Chief Development Officer
Date Mar 20, 2024
2 208
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ACORD® CERTIFICATE OF LIABILITY INSURANCE I

DATE (MM/DD/YYYY)
~ 8/7/2023
~
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 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).

PRODUCER ~~:i~cT Jo Lusk
AssuredPartners Design Professionals Insurance Services, LLC f.~~N,t c:vn • 510-272-1465 I FAX 3697 Mt. Diablo Blvd Suite 230 IA/C Nol:

Lafayette CA 94549 !~t~~ss: [email protected] INSURER(S) AFFORDING COVERAGE NAIC#
License#:6003745 INSURER A: BERKLEY INSURANCE COMPANY 32603 INSURED MIGINC0-01 INSURER B: Travelers Property Casualty Company of America 25674 MIG , Inc. INSURER c: The Travelers Indemnity Company of Connecticut 25682 Moore lacofano Goltsman, Inc. 800 Hearst Ave INSURER D: The Travelers Indemnity Company 25658 Berkeley CA 94710 INSURER E:

INSURER F:

COVERAGES CERTIFICATE NUMBER: 1537881182 REVISION NUMBER:

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.

INSR ADDL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INC:n WVD POLICY NUMBER (MM/DD/YYYY\ (MM/DD/YYYY\ LIMITS C X COMMERCIAL GENERAL LIABILITY y y 6801H899998 8/31/2023 8/31/2024 EACH OCCURRENCE $1 ,000,000 ,- □ CLAIMS-MADE 0 OCCUR DAMA<;E W1 RENTED PREMISES Ea occurrence) $1 ,000,000 X ,- Contractual Liab MED EXP (Any one person) $10,000
Included PERSONAL & ADV INJURY $1,000,000
-GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 Fl 0 PRO- DLoc PRODUCTS - COMP/OP AGG $2,000,000 POLICY JECT OTHER: $
C AUTOMOBILE LIABILITY y y
-
BAOS579947 8/31/2023 8/31/2024 (E~~~~~~~llNGLE LIMIT $1,000,000 X ANY AUTO BODILY INJURY (Per person) $
- -OWNED SCHEDULED BODILY INJURY (Per accident) $
- .AUTOS ONLY AUTOS
X HIRED X NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY /Per accidentl - - $

B X UMBRELLA LIAB
M
OCCUR y y CUPOH758762 8/31/2023 8/31/2024 EACH OCCURRENCE $10,000,000 - EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000
OED I X I RETENTION $ (\ $
D WORKERS COMPENSATION y UB2L553909 8/31/2023 8/31/2024 X I ~ffruTE I IOTH-ER AND EMPLOYERS' LIABILITY YIN ANYPROPRIETOR/PARTNER/EXECUTIVE ~
E.L. EACH ACCIDENT $1,000,000
OFFICER/MEMBER EXCLUDED? N/A
(Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $1,000,000 ~m:~rtfr3~ ~nt~PERATIONS below E.L. DISEASE - POLICY LIMIT $1,000,000 A Professional Liability & AEC907002005 8/31/2023 8/31/2024 Per Claim/5,000,000 $5,000,000/Aggr Contr. Pollution Liab Included Included
DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Umbrella Liability policy is a follow-form to its underlying Policies : General Liability/Auto Liability/Employers Liability.

Re: Lawrence Mitty Park and Trail Master Plan The City of Cupertino, its City Council, officers, officials , employees, agents, servants and volunteers are named as an additional insured as respects general liability and auto liability as required per written contract or agreement. General Liability is Primary/Non-Contributory per policy form wording. Insurance coverage includes waiver of subrogation per the attached endorsement(s) .

CERTIFICATE HOLDER
City of Cupertino
10300 Torre Avenue
Cu ertino CA 95014
ACORD 25 (2016/03)
CANCELLATION 30 Da Notice of Cancellation

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
© 1988-2015 ACORD CORPORATION. All rights reserved.

The ACORD name and logo are registered marks of ACORD 209 CC 04-16-2024

POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ADDITIONAL INSUR_ED - OWNERS, LESSEES OR

CONTRACTORS - SCHEDULED PERSON OR

ORGANIZATION
This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE
Names of Additional Insured Person(s) or Organization(s):

Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part, provided that such written contract was signed by you before.and is in effect when, the "bodily injury" or "property damage" occurs or the "personal injury" or "advertising injury" offense is committed.

Location of Covered Operations:

Any project to which a written contract with the Additional Insured Person(s) or Organization(s) in the Schedule applies.
(lnformatbn required to complete thls Schedule, if not shown above, will be shown in the Declarations.) A. Section II - Who Is An Insured is amended to in­
clude as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury", "property damage", "personal injury" or "advertising injury"
caused, in whole or in part, by:

1. Your acts or omissions; or

2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured(s) at the location(s) desig­
nated above.

B. With respect to the insurance afforded to these
additional insureds, the following additional exclu­
sions apply:

CG D3 61 03 05
This insurance does not apply to "bodily injury" or
"property damage" occurring, or ''personal injury"
or "advertising injury" arising out of an offense
committed, after:

1. All work, including materials, parts or equip­
ment furnished in connection with such work,
on the project (other than service, mainte­
nance or repairs) to be performed by or on
behalf of the additional insured(s) at the loca­
tion of the covered operations has been com­
pleted; or

2. That portion of "your work" out of which the
injury or damage arises has been put to its in­
tended use by any person or organization
other than another contractor or subcontrac­
tor engaged in performing operations for a
principal as a part of the same project.

Copyright 2005 The St. Paul Travelers Companies, Inc. All rights reserved.

CG T8 03 08 23 ncludes copyrighted material of Insurance Services Office, Inc. with its permission.

DATE OF ISSUE: 08/06/2023 Page 1 of 1 210
CC 04-16-2024

POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ADDITIONAL INSURED - OWNERS, LESSEES OR

CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE
Name Of Additional Insured Person(s) Or Organization(s):

Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part for "bodily injury" or "property damage" included in the products-completed operations hazard, provided that such contract was signed by you before, and is in effect when, the "bodily injury or "property damage" occurs.

Location And Description Of Completed Operations
Any project to which a written contract with the Additional Insured Person(s) or Organization(s) in the Schedule applies.

Information required to complete this Schedule, if not shown above, will be shown in the Declarations.

Section II - Who Is An Insured is amended to in­
clude as an additional insured the person(s) or or­
ganization(s) shown in the Schedule, but only with
respect to liability for "bodily injury" or "property dam­ age" caused, in whole or in part, by "your work" at the CG 20 37 07 04
location designated and described in the schedule of
this endorsement performed for that additional in­
sured and included in the "products-completed opera­
tions hazard".

CG TS 04 08 23 © ISO Properties , Inc., 2004
DATE OF ISSUE: 08/06/2023 Page 1 of 1 211
CC 04-16-2024

Policy# sao1Ha9999 a

COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance pennits contribution
by equal shares, we will follow this method also.

Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.

If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this method, each insurer's
share is based on the ratio of its applicable limit
of insurance to the total applicable limits of
insurance of all insurers.

Primary And Non-Contributory Insurance If
a. The statements in the Declarations are
accurate and complete;
b. Those statements are based upon
representations you made to us; and
c. We have issued this policy in reliance upon
your representations.

The unintentional omission of, or unintentional error
in, any information provided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance. However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
non renewal in accordance with applicable insurance
laws or regulations. - - )~ d.

Required By Written Contract --:77. Separation Of Insureds If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis, or a primary and non­
contributory basis, this insurance is primary to
other insurance that is available to such insured
which covers such insured as a named insured,
and we will not share with that other insurance,
provided that:
(1) The "bodily injury'' or "property damage" for
which coverage is sought occurs; and
(2) The "personal and advertising injury" for
which coverage is sought is caused by an
offense that is committed;
subsequent to the signing of that contract or
agreement by you.

5. Premium Audit
a. We will compute all premiums for this Cowrage
Part in accordance with our rules and rates.
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned premium for that period and send
notice to the first Named Insured. The due date
for audit and retrospective premiums is the date
shown as the due date on the bill. If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium, we will return the excess to the first
Named Insured.
c. The first Named Insured must keep records of
the information we need for premium
computation, and send us copies at such times
as we may request.

6. Representations
By accepting this policy, you agree:

Except with respect to the Limits of Insurance, and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom claim
is made or "suit" is brought.

8. Transfer or Rights or Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us. The insured must
do nothing after loss to impair them. At our request,
the insured will bring "suit" or transfer those rights
to us and help us enforce them.

9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or deliver to the first Named Insured shown in
the Declarations written notice of the nonrenewal
not less than 30 days before the expiration date.

If notice is mailed, proof of mailing will be sufficient proof of notice.

SECTION V - DEFINITIONS

1. "Advertisement" means a notice that is broadcast or
published to the general public or specific market
segments about your goods, products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition:
a. Notices that are published include material
placed on the Internet or on similar electronic
means of communication; and
b. Regarding websites, only that part of a website
that is about your goods, products or services
for the purposes of attracting customers or
supporters is considered an advertisement.

Includes copyrighted material of Insurance Services Office, Inc. with its permission. 212 CC 04-16-2024

Policy# sso1Hs999ss
occupational therapist or occupational
therapy assistant, physical therapist or
speech-language pathologist; or
(b) First aid or "Good Samaritan services"
by any of your "employees" or "volunteer
workers", other than an employed or
volunteer doctor. Any such "employees"
or "volunteer workers" providing or failing
to provide first aid or "Good Samaritan
services" during their work hours for you
will be deemed to be acting within the
scope of their employment by you or
performing duties related to the conduct
of your business.

3. The following replaces the last sentence of
Paragraph 5. of SECTION Ill - LIMITS OF
INSURANCE:

For the purposes of determining the
applicable Each Occurrence Limit, all related
acts or omissions committed in providing or
failing to provide "incidental medical
services", first aid or "Good Samaritan
services" to any one person will be deemed
to be one "occurrence".

4. The following exclusion is added to
Paragraph 2., Exclusions, of SECTION I -

COVERAGES - COVERAGE A - BODILY

INJURY AND PROPERTY DAMAGE
LIABILITY:

Sale Of Pharmaceuticals
"Bodily injury" or "property damage" arising
out of the violation of a penal statute or

COMMERCIAL GENERAL LIABILITY
that is available to any of your "employees"
for "bodily injury" that arises out of providing
or failing to provide "incidental medical
services" to any person to the extent not
subject to Paragraph 2.a.(1) of Section II -
Who Is An Insured.

K. MEDICAL PAYMENTS - INCREASED LIMIT
The following replaces Paragraph 7. of
SECTION Ill - LIMITS OF INSURANCE:

7. Subject to Paragraph 5. above, the Medical
Expense Limit is the most we will pay under
Coverage C for all medical expenses
because of "bodily injury" sustained by any
one person, and will be the higher of:
a. $10,000; or
b. The amount shown in the Declarations of
this Coverage Part for Medical Expense
Limit.

L. AMENDMENT OF EXCESS INSURANCE

CONDITION - PROFESSIONAL LIABILITY
The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -

COMMERCIAL GENERAL LIABILITY
CONDITIONS:

This insurance is excess over any of the other
insurance, whether primary, excess, contingent
or on any other basis, that is Professional
Liability or similar coverage, to the extent the
loss is not subject to the professional services
ordinance relating to the sale of➔ M
pharmaceuticals committed by, or with the •
exclusion of Coverage A or Coverage B.

BLANKET WAIVER OF SUBROGATION -
WHEN REQUIRED BY WRITTEN CONTRACT knowledge or consent of the insured.

5. The following is added to the DEFINITIONS
Section:
"Incidental medical services" means:
a. Medical, surgical, dental, laboratory, x­
ray or nursing service or treatment,
advice or instruction, or the related
furnishing of food or beverages; or
b. The furnishing or dispensing of drugs or
medical, dental, or surgical supplies or
appliances.

6. The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -

COMMERCIAL GENERAL LIABILITY
CONDITIONS:

This insurance is excess over any valid and
collectible other insurance, whether primary,
excess, contingent or on any other basis,

OR AGREEMENT
The following is added to Paragraph 8., Transfer
Of Rights Of Recovery Against Others To Us,
of SECTION IV - COMMERCIAL GENERAL
LIABILITY CONDITIONS:

If the insured has agreed in a written contract or
agreement to waive that insured's right of
recovery against any person or organization, we
waive our right of recovery against such person
or organization, but only for payments we make
because of:
a. "Bodily injury" or "property damage" that
occurs; or
b. "Personal and advertising injury" caused by
an offense that is committed;
subsequent to the signing of that contract or
agreement.

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Policy Number : BA0S579947

COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

BUSINESS AUTO EXTENSION ENDORSEMENT
This endorsement modifies insurance provided under the following:

BUSINESS AUTO COVERAGE FORM
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover­ age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en­ dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered.

A. BROAD FORM NAMED INSURED
B. BLANKET ADDITIONAL INSURED
C. EMPLOYEE HIRED AUTO
D. EMPLOYEES AS INSURED
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
F. HIRED AUTO - LIMITED WORLDWIDE COV-

ERAGE - INDEMNITY BASIS
G. WAIVER OF DEDUCTIBLE - GLASS

PROVISIONS
A. BROAD FORM NAMED INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE :

Any organization you newly acquire or form dur­
ing the policy period over which you maintain
50% or more ownership interest and that is not
separately insured for Business Auto Coverage.

Coverage under this provision is afforded only un­
til the 180th day after you acquire or form the or­
ganization or the end of the policy period, which­
ever is earlier.

B. BLANKET ADDITIONAL INSURED
The following is added to Paragraph c. in A.1.,
Who Is An Insured , of SECTION II - COVERED
AUTOS LIABILITY COVERAGE:

Any person or organization who is required under
a written contract or agreement between you and
that person or organization, that is signed and
executed by you before the "bodily injury" or
"property damage" occurs and that is in effect
during the policy period, to be named as an addi­
tional insured is an "insured" for Covered Autos
Liability Coverage, but only for damages to which
H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF

USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION

EXPENSES - INCREASED LIMIT
J. PERSONAL PROPERTY
K. AIRBAGS
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
M. BLANKET WAIVER OF SUBROGATION
N. UNINTENTIONAL ERRORS OR OMISSIONS
this insurance applies and only to. the extent that
person or organization qualifies as an "insured"
under the Who Is An Insured provision contained
in Section II.

C. EMPLOYEE HIRED AUTO

1. The following is added to Paragraph A.1.,
Who Is An Insured, of SECTION II - COV­
ERED AUTOS LIABILITY COVERAGE :

An "employee" of yours is an "insured" while
operating an "auto" hired or rented under a
contract or agreement in an "employee's"
name, with your permission, while performing
duties related to the conduct of your busi­
ness.

2. The following replaces Paragraph b. in B.5.,
Other Insurance, of SECTION IV - BUSI­
NESS AUTO CONDITIONS :
b. For Hired Auto Physical Damage Cover­
age, the following are deemed to be cov­
ered "autos" you own:
(1) Any covered "auto" you lease, hire,
rent or borrow; and
(2) Any covered "auto" hired or rented by
your "employee" under a contract in
an "employee's" name, with your
CA T3 53 02 15 © 2015 The Travelers Indemnity Company . All rights reserved. Page 1 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission. 214
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COMMERCIAL AUTO
perm1ss1on, while performing duties
related to the conduct of your busi­
ness.

However, any "auto" that is leased, hired,
rented or borrowed with a driver is not a
covered "auto".

D. EMPLOYEES AS INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE:

Any "employee" of yours is an "insured" while us­
ing a covered "auto" you don't own, hire or borrow
in your business or your personal affairs.

E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS

1. The following replaces Paragraph A.2.a.(2),
of SECTION II - COVERED AUTOS LIABIL­
ITY COVERAGE:
(2) Up to $3,000 for cost of bail bonds (in­
cluding bonds for related traffic law viola­
tions) required because of an "accident"
we cover. We do not have to furnish
these bonds.

2. The following replaces Paragraph A.2.a.(4),
of SECTION II - COVERED AUTOS LIABIL­
ITY COVERAGE:
(4) All reasonable expenses incurred by the
"insured" at our request, including actual
loss of earnings up to $500 a day be­
cause of time off from work.

F. HIRED AUTO - LIMITED WORLDWIDE COV­

ERAGE - INDEMNITY BASIS
The following replaces Subparagraph (5) in Para­
graph 8.7., Policy Period, Coverage Territory,
of SECTION IV - BUSINESS AUTO CONDI­
TIONS :
(5) Anywhere in the world, except any country or
jurisdiction while any trade sanction, em­
bargo, or similar regulation imposed by the
United States of America applies to and pro­
hibits the transaction of business with or
within such country or jurisdiction, for Cov­
ered Autos Liability Coverage for any covered
"auto" that you lease, hire, rent or borrow
without a driver for a period of 30 days or less
and that is not an "auto" you lease, hire, rent
or borrow from any of your "employees",
partners (if you are a partnership), members
(if you are a limited liability company) or
members of their households.
(a) With respect to any claim made or "suit"
brought outside the United States of
America, the territories and possessions
of the United States of America, Puerto
Rico and Canada:
(i) You must arrange to defend the "in­
sured" against, and investigate or set­
tle any such claim or "suit" and keep
us advised of all proceedings and ac­
tions.
(ii) Neither you nor any other involved
"insured" will make any settlement
without our consent.
(iii) We may, at our discretion, participate
in defending the "insured" against, or
in the settlement of, any claim or
"suit".
(iv) We will reimburse the "insured" for
sums that the "insured" legally must
pay as damages because of "bodily
injury" or "property damage" to which
this insurance applies, that the "in­
sured" pays with our consent, but
only up to the limit described in Para­
graph C., Limits Of Insurance, of

SECTION II - COVERED AUTOS
LIABILITY COVERAGE.
(v) We will reimburse the "insured" for
the reasonable expenses incurred
with our consent for your investiga­
tion of such claims and your defense
of the "insured" against any such
"suit", but only up to and included
within the limit described in Para­
graph C., Limits Of Insurance, of

SECTION II - COVERED AUTOS
LIABILITY COVERAGE, and not in
addition to such limit. Our duty to
make such payments ends when we
have used up the applicable limit of
insurance in payments for damages,
settlements or defense expenses.
(b) This insurance is excess over any valid
and collectible other insurance available
to the "insured" whether primary, excess,
contingent or on any other basis.
(c) This insurance is not a substitute for re­
quired or compulsory insurance in any
country outside the United States, its ter­
ritories and possessions, Puerto Rico and
Canada.

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You agree to maintain all required or
compulsory insurance in any such coun­
try up to the minimum limits required by
local law. Your failure to comply with
compulsory insurance requirements will
not invalidate the coverage afforded by
this policy, but we will only be liable to the
same extent we would have been liable
had you complied with the compulsory in­
surance requirements.
(d) It is understood that we are not an admit­
ted or authorized insurer outside the
United States of America, its territories
and possessions, Puerto Rico and Can­
ada. We assume no responsibility for the
furnishing of certificates of insurance, or
for compliance in any way with the laws
of other countries relating to insurance.

G. WAIVER OF DEDUCTIBLE - GLASS
The following is added to Paragraph D., Deducti­
ble, of SECTION Ill - PHYSICAL DAMAGE
COVERAGE :

No deductible for a covered "auto" will apply to
glass damage if the glass is repaired rather than
replaced.

H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF

USE - INCREASED LIMIT
The following replaces the last sentence of Para­
graph A.4.b., Loss Of Use Expenses, of SEC­
TION Ill- PHYSICAL DAMAGE COVERAGE :

However, the most we will pay for any expenses
for loss of use is $65 per day, to a maximum of
$750 for any one "accident".

I. PHYSICAL DAMAGE - TRANSPORTATION

EXPENSES - INCREASED LIMIT
The following replaces the first sentence in Para­
graph A.4.a., Transportation Expenses, of
SECTION Ill - PHYSICAL DAMAGE COVER­
AGE:

We will pay up to $50 per day to a maximum of
$1,500 for temporary transportation expense in­
curred by you because of the total theft of a cov­
ered "auto" of the private passenger type.

J. PERSONAL PROPERTY
The following is added to Paragraph A.4., Cover­
age Extensions , of SECTION Ill - PHYSICAL
DAMAGE COVERAGE :

Personal Property
We will pay up to $400 for "loss" to wearing ap­
parel and other personal property which is:
(1) Owned by an "insured"; and

COMMERCIAL AUTO
(2) In or on your covered "auto".

This coverage applies only in the event of a total
theft of your covered "auto".

No deductibles apply to this Personal Property
coverage.

K. AIRBAGS
The following is added to Paragraph B.3., Exclu­
sions, of SECTION Ill - PHYSICAL DAMAGE
COVERAGE :

Exclusion 3.a. does not apply to "loss" to one or
more airbags in a covered "auto" you own that in­
flate due to a cause other than a cause of "loss"
set forth in Paragraphs A.1.b. and A.1.c., but
only:
a. If that "auto" is a covered "auto" for Compre­
hensive Coverage under this policy;
b. The airbags are not covered under any war-
ranty; and
c. The airbags were not intentionally inflated.

We will pay up to a maximum of $1,000 for any
one "loss".

L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
The following is added to Paragraph A.2.a., of
SECTION IV - BUSINESS AUTO CONDITIONS:

Your duty to give us or our authorized representa­
tive prompt notice of the "accident" or "loss" ap­
plies only when the "accident" or "loss" is known
to:
(a) You (if you are an individual);
(b) A partner (if you are a partnership);
(c) A member (if you are a limited liability com­
pany);
(d) An executive officer, director or insurance
manager (if you are a corporation or other or­
ganization); or
(e) Any "employee" authorized by you to give no­
tice of the "accident" or "loss".

M. BLANKET WAIVER OF SUBROGATION
The following replaces Paragraph A.5. , Transfer
Of Rights Of Recovery Against Others To Us,
of SECTION IV - BUSINESS AUTO CONDI­
TIONS:

5. Transfer Of Rights Of Recovery Against
Others To Us
We waive any right of recovery we may have
against any person or organization to the ex­
tent required of you by a written contract
signed and executed prior to any "accident"
or "loss", provided that the "accident" or "loss"
arises out of operations contemplated by
CA T3 53 0215 © 2015 The Travelers Indemnity Company . All rights reserved. Page 3 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission . 216
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COMMERCIAL AUTO
such contract. The waiver applies only to the
person or organization designated in such
contract.

N. UNINTENTIONAL ERRORS OR OMISSIONS
The following is added to Paragraph 8.2., Con­
cealment, Misrepresentation, Or Fraud, of
SECTION IV - BUSINESS AUTO CONDITIONS:

The unintentional om1ss1on of, or unintentional
error in, any information given by you shall not
prejudice your rights under this insurance. How­
ever this provision does not affect our right to col­
lect additional premium or exercise our right of
cancellation or non-renewal.

Includes copyrighted material of Insurance Services Office, Inc. with its permission. 217
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Policy#: BA0S579947 COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

BLANKET ADDITIONAL INSURED - PRIMARY AND

NON-CONTRIBUTORY WITH OTHER INSURANCE
This endorsement modifies insurance provided under the following:

BUSINESS AUTO COVERAGE FORM

PROVISIONS

1. The following is added to Paragraph A.1.c .. Who
Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE:

This includes any person or organization who you
are required under a written contract or
agreement between you and that person or
organization, that is signed by you before the
"bodily injury" or "property damage" occurs and
that is in effect during the policy period. to name
as an additional insured for Covered Autos
Liability Coverage, but only for damages to which
this insurance applies and only to the extent of
that person's or organization's liability for the
conduct of another "insured".

2. The following is added to Paragraph 8.5 .. Other
Insurance of SECTION IV - BUSINESS AUTO
CONDITIONS:

Regardless of the provisions of paragraph a. and
paragraph d. of this part 5. Other Insurance, this
insurance is primary to and non-contributory with
applicable other insurance under which an
additional insured person or organization is the
first named insured when the written contract or
agreement between you and that person or
organization, that is signed by you before the
"bodily injury" or "property damage" occurs and
that is in effect during the policy period. requires
this insurance to be primary and non-contributory.

CA T4 74 02 16 © 2016 The Travelers Indemnity Company. All rights reserved. Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc. with its permission. 218
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~

TRAVELERSJ

WORKERS COMPENSATION
AND

EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 99 03 76 ( A) -
POLICY NUMBER: UB2L553909

WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS

ENDORSEMENT - CALIFORNIA
(BLANKET WAIVER)
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule.

The additional premium for this endorsement shall be % of the California workers' compensation pre- mium.

Schedule
Person or Organization Job Description
Any Person or organization for which the insured has agreed by written contract executed prior to loss to furnish this waiver.

This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated.
(The information below is required only when this endorsement is issued subsequent to preparation of the policy.)
Insurance CompJ3_n_y _ _____________ c .... o __ u __ n=te~rs=ig""'n""'e=d..:=bc,y ______ ~------ - =----- The Travelers Indemnity Company
DATE OF ISSUE: 8/7/2023 Page 1 of 1
219
CC 04-16-2024

THIRD AMENDMENT TO AGREEMENT 402 BETWEEN
THE CITY OF CUPERTINO AND MIG, INC., FOR

LAWRENCE-MITTY PARK AND TRAIL

IMPLEMENTATION PLAN
This Third Amendment to Agreement 402 between the City of Cupertino and MIG, Inc. is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and MIG, Inc., a Corporation ("Contractor") whose address is 2055 Junction Ave., Suite 205, San Jose, CA 95131, and is made with reference to the following:

RECITALS:

A. On December 09, 2021 Agreement 402 ("Agreement") was entered into by and between City and Contractor for Lawrence-Mitty Park and Trail Implementation Plan.

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 the undersigned parties as follows:

1. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:

City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $341,819.00 ("Contract Price"), erroneously stated in first amendment as a not to exceed $343,784.00, based on the budget and rates set forth in Exhibit C, Compensation, and attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. Exhibits A, A-1, and A-2 of the Agreement are modified to include Exhibit A-3 Additional Services, attached hereto.

2. Paragraph 4.3 Additional Services of the Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorized Additional Services up to an amount not to exceed $48,035.00. Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance with the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis, Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge. ("Reimbursable Expenses"). Consultant will not be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. Exhibit A, A-1 and A-2 of the Agreement are modified to include Exhibit A-3, Additional Services, 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
1 220
CC 04-16-2024

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

CITY OF CUPERTINO
ByP~wu
Title City Manager
Date Oct 13, 2022

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date Oct 13, 2022

EXPENDITURE DISTRIBUTION
MIG, INC.

Title Vice President/Chief Development Officer
Date Oct 13, 2022
Item PO Number J1 Amount _ J
Original Agreement 2022-325 I $293,784.0tj
Amendment #1 Change in Scope, Change in Contract Amount I' $28,500.00I l=Am=e=n=dm=en=t=#2=====:Ch · S I=' ===========::; I ange m cope . 1======::::::==============:; 1 I Amendment #3 Change in Scope, Change in Contract Amount . $19,535.00 l=:r=. o=ta=l =A=gr=ee=m=e=n=t ====: __ -· _ ... _________ _J::::::::::::~~==$=34= _ ~=,8=1=9=.Q_:::;~ 2 221
CC 04-16-2024

September 21, 2022
Matt Morley, Director of Public Works
Susan Michael, CIP Manager, Public Works
City of Cupertino - City Hall
10300 Torre Ave .

Cupertino, CA 95014
Exhibit A-3
Re: Additional Services Lawrence-Mitty Park and Trail Master Plan (MIG proj . no. 30903) Dear Matt and Susan,
As discussed with the Cupertino project manager, Lisa Cameli, and in meetings with you both , there have been several work efforts required for the Lawrence Mitty project that fall outside the original scope of work . The first three items were time-sensitive with verbal approval from the project manager to track time for these efforts and submit them together at one time as an add service . The last two items are also time-sensitive to stay on track with the upcoming events .

The following summarizes our request for additional work and fees that are above and beyond the original contract, signed Dec . 9, 2021 . All other terms in the original contract remain in effect .

Add Services #2 (New Task 7) .................................... ......................................... $19,535 We will add a new task number for this additional scope, detailed below :

1. Added translation work for the visioning survey in May-June 2022 (12 hours, $1,835)

2. Additional Meetings . and Additional Requested Staff in April­ June 2022, requested by the City PM:
• ERC ema il correspondence and meeting on 4/20/22,
(2 staff@ 2 hr. ea., $720)
• Site Tour - Extra Biology staff requested to be stationed at Creek (6 hr. - debrief, travel, attendance, $900)
• Environmental Planner/ CEOA-Soils expert at Joint
Commission Meeting on 6/ 13/22 (2 hr., $390)

3. Fast-tracked Separate Berm Removal Effort in June-Sept . 2022:
review of ber m work proposal by others , correspondence, several City meetings, and proposed pro cess write-up to move forward (Principal , PM, Environmental Planner, Biolog ist, 22 hr., $4,110)

PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT I SCIENCE I TECHNOLOGY 800 Hearst Avenue • Berkeley, CA 94710 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 222 CC 04-16-2024

Add Services Lawrence-Mitty
September 21, 2022

4. Out of scope Community Engagement additions, as discussed, in Sept-Oct 2022 (40 hr., $5,200):
• Video posting for Engage Cupertino to explain the 3
alternatives
• Coordinate survey #2 questions for Engage Cupertino's posting
• Synthesis of survey #2 results

5. Out of scope preparation for CD level mapping and
I nteragency Review. The original ALT A survey was adequate for concept level work. It was discussed early on that a more complete topo survey would be needed in the CD phase - to capture the (moved) soil pile locations/volumes, to reach CD­ level accuracy and to be able to share a georeferenced riparian corridor with the agencies (Multiple staff, 24 hr., $6,380). • Coordination/review of upcoming survey request (led
by the City of Cupertino) for current soil piles/berms for use in lnteragency meeting
• Planned environmental team work in Jan . 2023 to
review plans, coordinate , and prepare for/attend an
lnteragency review meeting in Feb. 2023
Please feel free to contact us with any questions or additional information needed .

Sincerely,
2:::97) ca
Principal, MIG
Please sign below to indicate your agreement to the terms outlined in this letter as a revision to the original contract and budget .

Matt Morley, Director of Public Works
City of Cupertino
Date
223
CC 04-16-2024

ACORD® CERTIFICATE OF LIABILITY INSURANCE I

DATE (MM/DD/YYYY)
~ 8/28/2022
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 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).

PRODUCER ~2:1~CT The Certificate Team
AssuredPartners Design Professionals Insurance Services, LLC PHONE I FAX 3697 Mt. Diablo Blvd Suite 230 14/(' "~ "·"· (A/C Nol:

Lafayette CA 94549 i~l~~ss : [email protected] INSURER(S) AFFORDING COVERAGE NAIC#
License#: 60037 45 INSURER A: Berkley Insurance Comoany 32603 INSURED MIGINC0-01 INSURER B : Travelers Property Casualty Company of America 25674 MIG, Inc. INSURER c: The Travelers Indemnity Company of Connecticut 25682 Moore lacofano Goltsman , Inc. 800 Hearst Ave INSURER D:

Berkeley CA 94710 INSURERE:

INSURERF:

COVERAGES CERTIFICATE NUMBER: 724616870 REVISION NUMBER:

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.

INSR ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE •••~n un,n POLICY NUMBER fMM/DD/YYYY\ fMM/DD/YYYY\ C X COMMERCIAL GENERAL LIABILITY y y 6801 H899998 8/31/2022 8/31 /2023 EACH OCCURRENCE $1 ,000,000 - :=J CLAIMS-MADE 0 OCCUR

DAMAGE TO RENTED
PREMISES /Ea occurrence\ $1 ,000,000
X Contractual Liab MED EXP (Any one person) $10,000 -
Included PERSONAL & ADV INJURY $1 ,000,000 -
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 R 0 PRO- □ LOC PRODUCTS - COMP/OP AGG $2,000,000 POLICY JECT OTHER: $
C AUTOMOBILE LIABILITY y y BAOS579947 8/31 /2022 8/31 /2023 COMBINED SINGLE LIMIT $1,000,000 /Ea accident\ -X ANY AUTO BODILY INJURY (Per person) $
>-- OWNED - SCHEDULED BODILY INJURY (Per accident) $
-

AUTOS ONLY AUTOS
X HIRED X NON-OWNED iP~~~~c~~t~AMAGE $
>-- AUTOS ONLY
-

AUTOS ONLY
$

B X UMBRELLA LIAB
M
OCCUR y y CUPOH758762 8/31 /2022 8/31 /2023 EACH OCCURRENCE $10,000,000 >-- EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000
DED I X I RETENTION$ n $
B WORKERS COMPENSATION y UB2L553909 8/31 /2022 8/31 /2023 X I ~ff-ruTE I I OTH-ER AND EMPLOYERS" LIABILITY Y/N

ANYPROPRIETOR/PARTNER/EXECUTIVE
□ N/A E.L. EACH ACCIDENT $ 1,000,000
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ 1,000,000 ~~it~(tf[~~ On:OPERATIONS below E.L. DISEASE - POLICY LIMIT $1 ,000,000 A Professional Liability N y AEC905795904 8/31 /2022 8/31/2023 Per Claim $5,000,000 Aggregate Limit $5,000,000
DESCRIPTION OF OPERATIONS/ LOCATIONS /VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Umbrella Liability policy is a follow-form underlying General Liability/Auto Liability/Employers Liability .

Re : Lawrence Mitty Park and Trail Master Plan The City of Cupertino , its City Council , officers , officials , employees , agents , servants and volunteers are named as an additional insured as respects general liability and auto liability as required per written contract or agreement. General Liability is Primary/Non-Contributory per policy form wording . Insurance coverage includes wa iver of subrogation per the attached endorsement(s) .

CERTIFICATE HOLDER
City of Cupertino
10300 Torre Avenue
Cupertino CA 95014
ACORD 25 (2016/03)
CANCELLATION 30 Da s Notice of Cancellation

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
© 1988-2015 ACORD CORPORATION. All rights reserved .

T h e ACORD name and logo are registered marks of ACORD 224 CC 04-16-2024

Policy Number: BA0S579947

COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

BUSINESS AUTO EXTENSION ENDORSEMENT
This endorsement modifies insurance provided under the following:

BUSINESS AUTO COVERAGE FORM
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover­ age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en­ dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered.

A. BROAD FORM NAMED INSURED
B. BLANKET ADDITIONAL INSURED
C. EMPLOYEE HIRED AUTO
D. EMPLOYEES AS INSURED
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
F. HIRED AUTO - LIMITED WORLDWIDE COV-

ERAGE - INDEMNITY BASIS
G. WAIVER OF DEDUCTIBLE - GLASS

PROVISIONS
A. BROAD FORM NAMED INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE:

Any organization you newly acquire or form dur­
ing the policy period over which you maintain
50% or more ownership interest and that is not
separately insured for Business Auto Coverage.

Coverage under this provision is afforded only un­
til the 180th day after you acquire or form the or­
ganization or the end of the policy period, which­
ever is earlier.

B. BLANKET ADDITIONAL INSURED
The following is added to Paragraph c. in A.1.,
Who Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE :

Any person or organization who is required under
a written contract or agreement between you and
that person or organization, that is signed and
executed by you before the "bodily injury" or
"property damage" occurs and that is in effect
during the policy period, to be named as an addi­
tional insured is an "insured" for Covered Autos
Liability Coverage, but only for damages to which
H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF

USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION

EXPENSES - INCREASED LIMIT
J. PERSONAL PROPERTY
K. AIRBAGS
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
M. BLANKET WAIVER OF SUBROGATION
N. UNINTENTIONAL ERRORS OR OMISSIONS
this insurance applies and only to the extent that
person or organization qualifies as an "insured"
under the Who Is An Insured provision contained
in Section II.

C. EMPLOYEE HIRED AUTO

1. The following is added to Paragraph A.1.,
Who Is An Insured, of SECTION II - COV­
ERED AUTOS LIABILITY COVERAGE :

An "employee" of yours is an "insured" while
operating an "auto" hired or rented under a
contract or agreement in an "employee's"
name, with your permission, while performing
duties related to the conduct of your busi­
ness.

2. The following replaces Paragraph b. in 8.5. ,
Other Insurance, of SECTION IV - BUSI­
NESS AUTO CONDITIONS:
b. For Hired Auto Physical Damage Cover­
age, the following are deemed to be cov­
ered "autos" you own:
(1) Any covered "auto" you lease, hire,
rent or borrow; and
(2) Any covered "auto" hired or rented by
your "employee" under a contract in
an "employee's" name, with your
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COMMERCIAL AUTO
perm1ss1on, while performing duties
related to the conduct of your busi­
ness.

However, any "auto" that is leased, hired,
rented or borrowed with a driver is not a
covered "auto".

D. EMPLOYEES AS INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE :

Any "employee" of yours is an "insured" while us­
ing a covered "auto" you don't own, hire or borrow
in your business or your personal affairs.

E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS

1. The following replaces Paragraph A.2.a.(2),
of SECTION II - COVERED AUTOS LIABIL­
ITY COVERAGE:
(2) Up to $3,000 for cost of bail bonds (in­
cluding bonds for related traffic law viola­
tions) required because of an "accident"
we cover. We do not have to furnish
these bonds.

2. The following replaces Paragraph A.2.a.(4),
of SECTION II - COVERED AUTOS LIABIL­
ITY COVERAGE:
(4) All reasonable expenses incurred by the
"insured" at our request, including actual
loss of earnings up to $500 a day be­
cause of time off from work.

F. HIRED AUTO - LIMITED WORLDWIDE COV­

ERAGE - INDEMNITY BASIS
The following replaces Subparagraph (5) in Para­
graph B.7., Policy Period, Coverage Territory,
of SECTION IV - BUSINESS AUTO CONDI­
TIONS:
(5) Anywhere in the world, except any country or
jurisdiction while any trade sanction, em­
bargo, or similar regulation imposed by the
United States of America applies to and pro­
hibits the transaction of business with or
within such country or jurisdiction, for Cov­
ered Autos Liability Coverage for any covered
"auto" that you lease, hire, rent or borrow
without a driver for a period of 30 days or less
and that is not an "auto" you lease, hire, rent
or borrow from any of your "employees",
partners (if you are a partnership), members
(if you are a limited liability company) or
members of their households.
(a) With respect to any claim made or "suit"
brought outside the United States of
America, the territories and possessions
of the United States of America, Puerto
Rico and Canada:
(i) You must arrange to defend the "in­
sured" against, and investigate or set­
tle any such claim or "suit" and keep
us advised of all proceedings and ac­
tions.
(ii) Neither you nor any other involved
"insured" will make any settlement
without our consent.
(iii) We may, at our discretion, participate
in defending the "insured" against, or
in the settlement of, any claim or
"suit".
(iv) We will reimburse the "insured" for
sums that the "insured" legally must
pay as damages because of "bodily
injury" or "property damage" to which
this insurance applies, that the "in­
sured" pays with our consent, but
only up to the limit described in Para­
graph C., Limits Of Insurance, of

SECTION II - COVERED AUTOS
LIABILITY COVERAGE.
(v) We will reimburse the "insured" for
the reasonable expenses incurred
with our consent for your investiga­
tion of such claims and your defense
of the "insured" against any such
"suit", but only up to and included
within the limit described in Para­
graph C., Limits Of Insurance, of

SECTION II - COVERED AUTOS
LIABILITY COVERAGE, and not in
addition to such limit. Our duty to
make such payments ends when we
have used up the applicable limit of
insurance in payments for damages,
settlements or defense expenses.
(b) This insurance is excess over any valid
and collectible other insurance available
to the "insured" whether primary, excess,
contingent or on any other basis.
(c) This insurance is not a substitute for re­
quired or compulsory insurance in any
country outside the United States, its ter­
ritories and possessions, Puerto Rico and
Canada.

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You agree to maintain all required or
compulsory insurance in any such coun­
try up to the minimum limits required by
local law. Your failure to comply with
compulsory insurance requirements will
not invalidate the coverage afforded by
this policy, but we will only be liable to the
same extent we would have been liable
had you complied with the compulsory in­
surance requirements.
(d) It is understood that we are not an admit­
ted or authorized insurer outside the
United States of America, its territories
and possessions, Puerto Rico and Can­
ada. We assume no responsibility for the
furnishing of certificates of insurance, or
for compliance in any way with the laws
of other countries relating to insurance.

G. WAIVER OF DEDUCTIBLE - GLASS
The following is added to Paragraph D., Deducti­
ble, of SECTION Ill - PHYSICAL DAMAGE
COVERAGE:

No deductible for a covered "auto" will apply to
glass damage if the glass is repaired rather than
replaced.

H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF

USE - INCREASED LIMIT
The following replaces the last sentence of Para­
graph A.4.b., Loss Of Use Expenses, of SEC­
TION Ill - PHYSICAL DAMAGE COVERAGE:

However, the most we will pay for any expenses
for loss of use is $65 per day, to a maximum of
$750 for any one "accident".

I. PHYSICAL DAMAGE - TRANSPORTATION

EXPENSES - INCREASED LIMIT
The following replaces the first sentence in Para­
graph A.4.a., Transportation Expenses, of
SECTION Ill - PHYSICAL DAMAGE COVER­
AGE:

We will pay up to $50 per day to a maximum of
$1,500 for temporary transportation expense in­
curred by you because of the total theft of a cov­
ered "auto" of the private passenger type.

J. PERSONAL PROPERTY
The following is added to Paragraph A.4., Cover­
age Extensions, of SECTION Ill - PHYSICAL
DAMAGE COVERAGE:

Personal Property
We will pay up to $400 for "loss" to wearing ap­
parel and other personal property which is:
(1) Owned by an "insured"; and

COMMERCIAL AUTO
(2) In or on your covered "auto".

This coverage applies only in the event of a total
theft of your covered "auto".

No deductibles apply to this Personal Property
coverage.

K. AIRBAGS
The following is added to Paragraph B.3., Exclu­
sions, of SECTION Ill - PHYSICAL DAMAGE
COVERAGE:

Exclusion 3.a. does not apply to "loss" to one or
more airbags in a covered "auto" you own that in­
flate due to a cause other than a cause of "loss"
set forth in Paragraphs A.1.b. and A.1.c., but
only:
a. If that "auto" is a covered "auto" for Compre­
hensive Coverage under this policy;
b. The airbags are not covered under any war-
ranty; and
c. The airbags were not intentionally inflated.

We will pay up to a maximum of $1,000 for any
one "loss".

L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
The following is added to Paragraph A.2.a., of
SECTION IV - BUSINESS AUTO CONDITIONS:

Your duty to give us or our authorized representa­
tive prompt notice of the "accident" or "loss" ap­
plies only when the "accident" or "loss" is known
to:
(a) You (if you are an individual);
(b) A partner (if you are a partnership);
(c) A member (if you are a limited liability com­
pany);
(d) An executive officer, director or insurance
manager (if you are a corporation or other or­
ganization); or
(e) Any "employee" authorized by you to give no­
tice of the "accident" or "loss".

M. BLANKET WAIVER OF SUBROGATION
The following replaces Paragraph A.5., Transfer
Of Rights Of Recovery Against Others To Us,
of SECTION IV - BUSINESS AUTO CONDI­
TIONS:

5. Transfer Of Rights Of Recovery Against
Others To Us
We waive any right of recovery we may have
against any person or organization to the ex­
tent required of you by a written contract
signed and executed prior to any "accident"
or "loss", provided that the "accident" or "loss"
arises out of operations contemplated by
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COMMERCIAL AUTO
such contract. The waiver applies only to the
person or organization designated in such
contract.

N. UNINTENTIONAL ERRORS OR OMISSIONS
The following is added to Paragraph B.2., Con­
cealment, Misrepresentation, Or Fraud, of
SECTION IV - BUSINESS AUTO CONDITIONS:

The unintentional om1ss1on of, or unintentional
error in, any information given by you shall not
prejudice your rights under this insurance. How­
ever this provision does not affect our right to col­
lect additional premium or exercise our right of
cancellation or non-renewal.

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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER: 6801 H899998
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ADDITIONAL INSURED - OWNERS, LESSEES OR

CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE
Name Of Additional Insured Person(s) Or Organization(s):

Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part for "bodily injury" or "property damage" included in the "products­ completed operations hazard", provided that such contract was signed and executed by you before, and is in effect when, the bodily injury or property damage occurs.

Location And Description Of Completed Operations
Any project to which an applicable contract described in the Name of Additional Insured Person(s) or Organization(s) section of this Schedule applies.

Information required to complete this Schedule, if not shown above, will be shown in the Declarations.

Section II - Who Is An Insured is amended to in­
clude as an additional insured the person(s) or or­
ganization(s) shown in the Schedule, but only with
respect to liability for "bodily injury" or "property dam­ age" caused, in whole or in part, by "your work" at the location designated and described in the schedule of
this endorsement performed for that additional in­
sured and included in the "products-completed opera­
tions hazard".

CG 20 37 07 04
CG TS 02 XX XX
© ISO Properties, Inc., 2004 Page 1 of 1
r'lt.TI= ("\~ IC:C:I II= · 08/31/2022
229
CC 04-16-2024

COMMERCIAL GENERAL LIABILITY
POLICY NUMBER 6801 H899998
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

ADDITIONAL INSURED - OWNERS, LESSEES OR

CONTRACTORS - SCHEDULED PERSON OR

ORGANIZATION
This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE
Names of Additional Insured Person(s) or Organization(s):

Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part, provided that such written contract was signed by you before, and is in effect when, the "bodily injury" or "property damage" occurs or the "personal injury" or "advertising injury" offense is committed.

Location of Covered Operations:

Any project to which a written contract with the Additional Insured Person(s) or Organization(s) in the Schedule applies.
(Information required to complete this Schedule, if not shown above, will be shown in the Declarations.) A. Section II - Who Is An Insured is amended to in­
clude as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury", "property damage", "personal injury" or "advertising injury"
caused, in whole or in part, by:

1. Your acts or omissions; or

2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured(s) at the location(s) desig­
nated above.

B. With respect to the insurance afforded to these
additional insureds, the following additional exclu­
sions apply:

This insurance does not apply to "bodily injury" or
"property damage" occurring, or "personal injury"
or "advertising injury" arising out of an offense
committed, after:

1. All work, including materials, parts or equip­
ment furnished in connection with such work,
on the project (other than service, mainte­
nance or repairs) to be performed by or on
behalf of the additional insured(s) at the loca­
tion of the covered operations has been com­
pleted; or

2. That portion of "your work" out of which the
injury or damage arises has been put to its in­
tended use by any person or organization
other than another contractor or subcontrac­
tor engaged in performing operations for a
principal as a part of the same project.

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Policy # 6801 H899998

COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance permits contribution
by equal shares, we will follow this method also.

Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.

If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this methcxl, each insurer's
share is based on the ratio of its applicable limit
of insurance to the total applicable limits of
insurance of all insurers.
d. Primary And Non-Contributory Insurance If
Required By Written Contract
If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis, or a primary and non­
contributory basis, this insurance is primary to
other insurance that is available to such insured
which covers such insured as a named insured,
and we will not share with that other insurance,
provided that:
(1) The "bodily injury" or "property damage" for
.which coverage is sought occurs; and
(2) The "personal and advertising injury" for
which coverage is sought is caused by an
offense that is committed;
subsequent to the signing of that contract or
agreement by you.

5. Premium Audit
a. We will compute all premiums for this Coverage
Part in accordance with our rules and rates.
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned premium for that period and send
notice to the first Named Insured. The due date
for audit and retrospective premiums is the date
shown as the due date on the bill. If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium, we will return the excess to the first
Named Insured.
c. The first Named Insured must keep records of
the information we need for premium
computation, and send us copies at such times
as we may request.

6. Representations
By accepting this policy, you agree:
a. The statements in the Declarations are
accurate and complete;
b. Those statements are based upon
representations you made to us; and
c. We have issued this policy in reliance upon
your representations.

The unintentional omission of, or unintentional error
in, any information provided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance. However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
nonrenewal in accordance with applicable insurance
laws or reaulations.

7. Separation Of Insureds
Except with respect to the Limits of Insurance, and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom claim
is made or "suit" is brought.

8. Transfer Of Rights Of Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us. The insured must
do nothing after loss to impair them. At our request,
the insured will bring "suit" or transfer those rights
to us and help us enforce them.

9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or deliver to the first Named Insured shown in
the Declarations written notice of the nonrenewal
not less than 30 days before the expiration date.

If notice is mailed, proof of mailing will be sufficient proof of notice.

SECTION V - DEFINITIONS

1. "Advertisement" means a notice that is broadcast or
published to the general public or specific market
segments about your goods, products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition:
a. Notices that are published include material
placed on the Internet or on similar electronic
means of communication; and
b. Regarding websites, only that part of a website
that is about your goods, prcxlucts or services
for the purposes of attracting customers or
supporters is considered an advertisement.

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Policy # 6801 H899998
occupational therapist or occupational
therapy assistant, physical therapist or
speech-language pathologist; or
(b) First aid or "Good Samaritan services"
by any of your "employees" or "volunteer
workers", other than an employed or
volunteer doctor. Any such "employees"
or "volunteer workers" providing or failing
to provide first aid or "Good Samaritan
services" during their work hours for you
will be deemed to be acting within the
scope of their employment by you or
performing duties related to the conduct
of your business.

3. The following replaces the last sentence of
Paragraph 5. of SECTION Ill - LIMITS OF
INSURANCE:

For the purposes of determining the
applicable Each Occurrence Limit, all related
acts or omissions committed in providing or
failing to provide "incidental medical
services", first aid or "Good Samaritan
services" to any one person will be deemed
to be one "occurrence".

4. The following exclusion is added to
Paragraph 2., Exclusions, of SECTION I -

COVERAGES - COVERAGE A - BODILY

INJURY AND PROPERTY DAMAGE
LIABILITY:

Sale Of Pharmaceuticals
"Bodily injury" or "property damage" arising
out of the violation of a penal statute or
ordinance relating to the sale of
pharmaceuticals committed by, or with the
knowledge or consent of the insured.

5. The following is added to the DEFINITIONS
Section:
"Incidental medical services" means:
a. Medical, surgical, dental, laboratory, x­
ray or nursing service or treatment,
advice or instruction, or the related
furnishing of food or beverages; or
b. The furnishing or dispensing of drugs or
medical, dental, or surgical supplies or
appliances.

6. The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -

COMMERCIAL GENERAL LIABILITY
CONDITIONS:

This insurance is excess over any valid and
collectible other insurance, whether primary,
excess, contingent or on any other basis,

COMMERCIAL GENERAL LIABILITY
that is available to any of your "employees"
for "bodily injury" that arises out of providing
or failing to provide "incidental medical
services" to any person to the extent not
subject to Paragraph 2.a.(1) of Section II -
Who Is An Insured.

K. MEDICAL PAYMENTS - INCREASED LIMIT
The following replaces Paragraph 7. of
SECTION Ill - LIMITS OF INSURANCE:

7. Subject to Paragraph 5. above, the Medical
Expense Limit is the most we will pay under
Coverage C for all medical expenses
because of "bodily injury" sustained by any
one person, and will be the higher of:
a. $10,000; or
b. The amount shown in the Declarations of
this Coverage Part for Medical Expense
Limit.

L. AMENDMENT OF EXCESS INSURANCE

CONDITION - PROFESSIONAL LIABILITY
The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -

COMMERCIAL GENERAL LIABILITY
CONDITIONS:

This insurance is excess over any of the other
insurance, whether primary, excess, contingent
or on any other basis, that is Professional
Liability or similar coverage, to the extent the
loss is not subject to the professional services
exclusion of Coverage A or Coverage B.

M. BLANKET WAIVER OF SUBROGATION -

WHEN REQUIRED BY WRITTEN CONTRACT

OR AGREEMENT
The following is added to Paragraph 8., Transfer
Of Rights Of Recovery Against Others To Us,
of SECTION IV - COMMERCIAL GENERAL
LIABILITY CONDITIONS:

If the insured has agreed in a written contract or
agreement to waive that insured's right of
recovery against any person or organization, we
waive our right of recovery against such person
or organization, but only for payments we make
because of:
a. "Bodily injury" or "property damage" that
occurs; or
b. "Personal and advertising injury" caused by
an offense that is committed;
subsequent to the signing of that contract or
agreement.

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Policy# : BA0S579947 COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

BLANKET ADDITIONAL INSURED - PRIMARY AND

NON-CONTRIBUTORY WITH OTHER INSURANCE
This endorsement modifies insurance provided under the following:

BUSINESS AUTO COVERAGE FORM

PROVISIONS

1. The following is added to Paragraph A.1.c., Who
Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE:

This includes any person or organization who you
are required under a written contract or
agreement between you and that person or
organization, that is signed by you before the
"bodily injury" or "property damage" occurs and
that is in effect during the policy period, to name
as an additional insured for Covered Autos
Liability Coverage, but only for damages to which
this insurance applies and only to the extent of
that person's or organization's liability for the
conduct of another "insured".

2. The following is added to Paragraph B.5., Other
Insurance of SECTION IV - BUSINESS AUTO
CONDITIONS:

Regardless of the provisions of paragraph a. and
paragraph d. of this part 5. other Insurance, this
insurance is primary to and non-contributory with
applicable other insurance under which an
additional insured person or organization is the
first named insured when the written contract or
agreement between you and that person or
organization, that is signed by you before the
"bodily injury" or "property damage" occurs and
that is in effect during the policy period, requires
this insurance to be primary and non-contributory.
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~

TRAVELERSJ

WORKERS COMPENSATION
AND

EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 99 03 76 ( A) -
POLICY NUMBER: UB2L553909

WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS

ENDORSEMENT - CALIFORNIA
(BLANKET WAIVER)
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule.

The additional premium for this endorsement shall be
mium.
% of the California workers' compensation pre-
Schedule
Person or Organization Job Description
Any Person or organization for which the insured has agreed by written contract executed prior to loss to furnish this waiver.

This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated.
(The information below is required only when this endorsement is issued subsequent to preparation of the policy.)
Insurance Company Countersigned by ____________ _
Travelers Property Casualty Company of America
DATE OF ISSUE: 8/28/2022 Page 1 of 1
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SECOND AMENDMENT TO AGREEMENT 402

BETWEEN THE CITY OF CUPERTINO AND MIG, INC

FOR COMPLETION OF THE LAWRENCE-MITTY

PARK AND TRAIL MASTER PLAN
This Second Amendment to Agreement 402 between the City of Cupertino and MIG, Inc., is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and MIG, Inc., a Corporation ("Contractor") whose address is 2055 Junction Ave., Suite 205, San Jose, CA 95131, and is made with reference to the following:

RECITALS:

A. On May 17, 2022, City Council took action to rename this project from "Lawrence- Mitty Park and Trail Master Plan," to "Lawrence-Mitty Park and Trail Implementation Plan." B. On December 09, 2021 Agreement 402 ("Agreement") was entered into by and between City and Contractor for Completion of the Lawrence-Mitty Park and Trail Master Plan.

C. City and the Contractor entered into a First Amendment for Lawrence-Mitty Master Plan effective February 28, 2022 with the term expiring on December 31, 2023; and 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 1 - PARTIES of the Agreement is modified to read as follows: This Agreement is made by and between the City of Cupertino, a municipal corporation ("City"), and MIG, Inc ("Consultant"), a Corporation for Design Services of the Lawrence-Mitty Park and Trail Implementation Plan ("Project"), and is effective on the last date signed below ("Effective Date").

2. Replace Exhibit A of the Agreement with Exhibit A-2, Scope of Work, attached hereto.

3. Exhibit A-1 remains in effect and is not changed by this contract amendment.

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.

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

CITY OF CUPERTINO MIG, INC.

By~ ~} ~ By __________ _
Title Acting City Manager Title Chief Development Officer Date Aug 23, 2022 Date Aug 18, 2022

APPROVED AS TO FORM
Chrisfopher D. Jensen
City Attorney
ATTEST:

City Clerk
Date Aug 25, 2022
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Exhibit A-2
Lawrence Mitty Park and Trail Implementation Plan, Cupertino, CA Scope of Work
November 17, 2021
MIG has prepared the following Scope of Work to illustrate how we will facilitate successful completion of the Lawrence Mitty Park and Trail Implementation Plan project. This scope captures and clarifies assumptions of the tasks incorporated in the attached Fee Proposal spreadsheet. The details are based on our understanding of the project requirements stated in the City of Cupertino's ("the City") Lawrence Mitty Park and Trail Master Plan RFQ, dated August 12, 2021, and Addenda (now known as the Lawrence Mitty Park and Trail Implementation Plan). In the tasks listed below, meetings are expected to be virtual except when noted otherwise. Meeting notes allow for one set of revisions to incorporate City input per meeting notes.

Project Understanding
The City wishes to develop a Park and Trail Implementation Plan for the Lawrence-Mitty site ("Implementation Plan"), located on the east side of Cupertino between the Lawrence Expressway and Saratoga Creek, as shown in the RFQ. The purpose of the Implementation Plan is to determine how to best meet the future recreation, trail, and open space needs of citizens through enhancement of the site. Additionally, there is the intent to connect the Saratoga Creek Trail through the Lawrence-Mitty site to San Jose and Santa Clarita to the North. The Implementation Plan process will initially result in a conceptual design for a premier par with recreation activities that will attract and accommodate all residents. The City envisions a destination that provides all ages, but especially children, with a memorable experience of outdoor play, exercise, and educational opportunities while providing much-needed open space to the east side of Cupertino, which is underserved in terms of park space and recreational opportunity. The resulting Implementation Plan will also provide an exciting and inviting space for all age groups through an extension of the Saratoga Creek walking and biking trail.

The comprehensive Implementation Plan will provide technical analysis of the site as described below, identify community values and needs, align with the City's 2020 Parks and Recreation System Master Plan and result in a ready-to-implement vision for the Lawrence Mitty Park site.

The City Council-approved conceptual design and report will be used to guide future recreational and programmatic decisions and capital improvement planning for the site.

PHASE 1- EXISTING CONDITIONS AND TECHNICAL ANALYSIS

1.1 Project Kick-Off Meeting and Work Plan
The project kick-off meeting will include City staff, MI G's Project Manager (PM), and key personnel within each designated specialty to discuss design objectives, issues, and a draft work

PLANN I N G I DESIGN I COMMUN I CATIONS I MANAGEMENT I SCIENCE I TECHNOLOGY 800 Hearst Avenue • Berkeley, CA 94710 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 237
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plan. Following the kick-off, MIG will develop a detailed work plan with roles, responsibilities, and schedule; prepare a data request; and coordinate a site visit.

Deliverables:
• Kick-off Agenda
• Kick-off Notes
• Draft Work Plan and Schedule
• Final Work Plan and Project Schedule (PDF)

1.2 Community Engagement Initial Planning
MIG will review existing input from the 2020 Park and Recreation System Master Plan and 2017 community site walk We will collaborate with City staff to identify stakeholders and prepare for outreach .

Deliverables:
• Communications Plan including schedule (PDF, Draft and Final)

1.3 Evaluate Existing Conditions Information
The MIG Team will review existing conditions information and additional background documents noted in the RFQ. BKF will evaluate existing utilities and easements, hydro logic information, and adequate survey info, and alert the City if there is a need for any additional information.

Deliverables:
• Summary report of site-specific findings and jurisdictional regulations that may impact or influence the final conceptual design for the Implementation Plan including specific per the RFQ
• Summary of how the proposed conceptual plan conforms to Citywide Parks Goals and Regulations as requirements of other jurisdictions
• Summary of review of existing ATLA/NSPS Land Survey and verification of site improvement and topo accuracy or statement of inconsistencies with fee proposal for corrections
• Summary of the MIG Team's research and understanding of existing on-site and adjacent utilities, easements, and hydro logic information. Includes assessment of any potential impacts on site design concepts
•

1.4 Team Site Tour
In collaboration with City staff, the MIG Team will meet at the site to walk the park and trail, observing specific concerns and discussing questions.

Deliverables:
• Meeting notes for Site Tour
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1.5 Transportation Study
Hexagon Transportation Consultants will prepare a short vehicle miles travelled (VMT) project screening memo to describe how the project would be screened out of a full VMT analysis under the City's criteria. Hexagon will also analyze the potential multi-modal/pedestrian safety impacts of the park and trail project.

Deliverables:
• VMT screening and Multimodal/Pedestrian Safety Impacts Memo

1.6 Phase 1 ESA Update and Phase 2 Investigation
Cornerstone will prepare a Phase I Environmental Site Assessment (ESA) Update, a Phase II Soil Quality Evaluation, and a Health and Safety Plan for personnel conducting earthwork activities at the site prior to the initiation of the Phase II soil sampling. Meeting attendance will be charged on a time and materials basis.

Deliverables:
• Meeting Notes from meeting documenting approach and decisions for further environmental analysis
• Summary of full review of existing Environmental Reports for the site • List of any proposed additional testing locations and purpose of sampling • Draft and Final Phase II Environmental Site Assessment Report for City review and approval
• Completion of a Phase III ESA ifrequested by the City and recommended in the Phase II ESA (Scope and fee to be negotiated after Phase II ESA is complete)

1.7 Acoustical Assessment for Noise Reduction
MIG will prepare a technical noise report that summarizes the existing ambient noise environment at the project site (based on measurements and modeling results) , the ambient environment that could exist under three different sound attenuation options at the site, and preliminary recommendations for recreation options based on reduced noise levels. MI G's approach to completing the noise (i.e., the protocol) will be summarized in a technical memorandum for City approval after MIG has discussed various modeling options with the City during a kick-off call. Noise reduction measures will be integrated into the final conceptual design and final Conceptual Plan report.

Deliverables:
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•
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Technical noise memorandum for protocol for review and acceptance (within two weeks of kick-off call)
Draft Noise Report (PDF, within five weeks of protocol approval) Final Noise Report
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1.8 Biological Resources Report
MIG biologists will prepare a stand-alone Biological Resources Report that will include a Jurisdictional Delineation. These reports will be used to inform the project design and as supporting documentation for the CEQA analysis and any future resource agency permits that may be required for the project.

Deliverables:
• Biological Resources Report
• Jurisdictional Delineation

1.9 Tree Survey and Condition Assessment
SBCA Tree Consulting will perform an assessment of on-site trees including an evaluation of tree size and health, tree site location, identification of structural defects, pruning needs, and pests.

Work will include one (1) pre-inventory meeting with the City Project Manager and Arborist.

Deliverables:
• Draft and final copy of proposed tree inventory methodology and attributes to be collected for City review and approval
• One (1) PDF copy and one (1) AutoCAD version 2019 or newer copy of tree survey overlayed onto the existing 2020 topographic survey within the project area at 1"= 20' scale
• One (1) PDF of Arborist Report on trees, potential construction impacts and recommendations to be integrated into the final Conceptual Plan Report

1.10 Site Environmental Summary Report
MIG, along with consultant expertise, will synthesize findings into an Environmental Summary Report (to include a brief summary of all of the above reports) and Opportunities and Challenges Diagrams for use in future community meetings.

Deliverables:
• Environmental Summary Report (PDF)
• Opportunities and Challenges Diagrams (PDF)

1.11 City Meeting: Review Phase 1 Findings
The City and MIG will meet to review technical analysis and findings. We will also discuss emerging site possibilities and the team's approach to community input moving forward.

1.12 Phase 1 City Coordination and Project Management
MI G's PM and the City will hold weekly update calls with additional project team members attending periodically.

Deliverables:
• Meeting Notes highlighting key decisions
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PHASE 2 - COMMUNITY VISION

2.1 Public Survey and Analysis
Initial planning for the survey will occur early in Phase 1. At that time the City and MIG will discuss the workplan and confirm if this survey may launch before the technical analysis is 100% complete. MIG will develop the public internet survey, along with graphics for print materials for use by the City to distribute by US Mail. MIG will also provide additional advice on outreach and publicity to reach nearby residents and will develop a poster or a street decal with a QR code to be posted in and around the project area. The City will assist with placing posters. MIG will compile results from the survey in an easy-to-digest analysis for the City. The City and MIG will meet to review findings and inform next outreach steps.

Deliverables:
• Updated Communications Plan including schedule
• Draft Community Survey for City staff comment
• Final Community Survey to be distributed to the public • Development of poster or street decal with QR code to publicize survey • Outreach advice on reaching neighbors regarding the survey • Survey Analysis
• Meeting Notes highlighting key decisions and next steps

2.2 Develop Graphic and Outreach Tools
Using the knowledge gained from Phase 1 and the public survey, MIG will develop graphics and tools for community input We will summarize important site information from Phase 1 for the community and elicit feedback in multiple ways. Methods will be determined in collaboration with the City and may include options such as interactive polling, shared Mural boards, and breakout groups, along with printed materials for in-person feedback.

Deliverables:
• Draft Graphics for Review (PDF)
• Final Graphics (PDF for one zoom meeting, large-size prints for one on-site open house)

2.3 Community Meetings (2)
MIG will organize and present at two (2) community meetings to solicit additional input on the community's interests, clarify community priorities, and to help guide development of the three design alternatives. To encourage more input and respond to both the pandemic and varying schedules, we propose one meeting via Zoom and one outdoor in-person casual open-house event/site tour starting at Sterling-Barnhart Park, to allow the community to walk the currently fenced site .

Deliverables:
• Two (2) Community Meeting Agendas & Presentations
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2.4 Community Pop-up Events (2)
MIG will organize and present at two (2) community pop-up events to solicit additional input from key stakeholder groups identified earlier in Phase 1. Examples include a table at a Farmer's Market or School, joining a neighborhood block meeting, or similar style event. The intent of these events is to solicit input from additional park users, or future users, by going to them.

Deliverables:
• Printed materials for Two (2) Community Pop-Ups

2.5 Synthesize Community Vision Results
Community meeting results, along with survey input, will be compiled by MIG into a summary report for review by the City and for use in upcoming Commission/Council presentations. MIG and the City will meet to review results and inform next steps.

Deliverables:
• Analysis and Synthesis Report of public survey and meeting findings • Meeting Notes highlighting key decisions and next steps

2.6 Commissions and City Council Presentations: Initial Meeting MIG will prepare slideshows and present to the Parks and Recreation Commission, the Bicycle­ Pedestrian Commission, Planning Commission, and City Council to receive feedback. The presentation will include a summary of input and priorities from the community meetings and survey responses.

Deliverables:
• Prepare draft slideshow presentation for City approval • Parks and Recreation Commission Agenda, Presentation, and Report • Planning Commission Agenda, Presentation, and Report
• Bicycle-Pedestrian Commission Agenda, Presentation, and Report • City Council Study Session Presentation and Report

2.7 Develop Recommended Improvements and Programming
Incorporating community input and comments from the Commissions and Council, the MIG Team will develop a set of recommended improvements and programming for the Lawrence- Mitty site.

The City and MIG will meet to review the recommendations and consider directions for the three alternatives.

Deliverables:
•
•
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2.8 Phase 2 City Coordination and Project Management
MI G's PM and the City will hold weekly update calls with additional project team members attending periodically.

Deliverables:
• Meeting Notes highlighting key decisions
PHASE 3 - CONCEPTUAL DESIGN ALTERNATIVES

3.1 Development Concept Alternatives and Costs
The MIG Team will create three (3) rough draft alternatives for initial review by the City that utilize planning studies and reports and incorporate community input, feedback from the City, and comments from the commission/council reviews. MIG will incorporate the City's consolidated input to finalize three (3) final alternatives for presentation to the community and prepare a rough order of magnitude cost estimate for each. Each Conceptual Design Alternative will include a colored plan with callouts for program elements. Precedent images will be used to help the community envision the various program elements.

Deliverables:
• Conceptual Design Alternatives (PDF and 1 hard copy)
• Meeting Notes from Consultant and City staff design review of Draft Concepts • 3 Conceptual Design Alternatives (PDF)
• Rough order of magnitude cost estimate for each alternative (PDF and Excel)

3.2 Develop Graphics and Outreach Tools
MIG will develop graphics and outreach tools to continue to engage the community, Commissions, and City Council for additional input as outlined in the RFQ.

Deliverables:
• Draft Graphics for Review (PDF)
• Final Graphics (PDF for one Zoom meeting, large-size prints for one on-site open house) • Draft Mailer of 3 Conceptual Design Alternatives for City staff review (PDF) • Final Postal Mailer of 3 Conceptual Design Alternatives to be sent to the public (PDF)

3.3 Community Meetings (2): Alternatives
MIG will organize and present the three community-driven design alternatives for public input with tools designed to help the community arrive at one final plan. Final planning will be confirmed with the City, but is currently assumed to be one Zoom meeting and one in-person casual open house similar to Phase 2.
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Deliverables:
• Two (2) Meeting Agendas and Notes from Alternatives Community Presentation and Feedback Meetings

3.4 Community Pop-Up Events (2)
MIG will organize and present at two (2) community pop-up events to solicit additional input from key stakeholder groups identified earlier in Phase 1. Examples include a table at a Farmer's Market or School, joining a neighborhood block meeting, or similar style event. The intent of these events is to solicit input from additional park users, or future users, by going to them.

Deliverables:
• Printed materials for Two (2) Community Pop-Ups

3.5 Analysis of Community Input
Community meeting results will be compiled into a summary report for review by the City and for use in upcoming Commission/Council presentations. MIG and the City will meet to review results and direction prior to Commission/Council presentations.

Deliverables:
• Analysis and Synthesis Report of community input and meeting findings • Meeting Notes highlighting key decisions and next steps

3.6 Commissions and City Council Presentations (3): Alternatives MIG will prepare slideshows and present to the Parks and Recreation Commission, the Bicycle­ Pedestrian Commission, and City Council to receive feedback. The presentation will include a summary of input and priorities from the community meetings.

Deliverables:
• Prepare draft slideshow presentation for City approval and final version • Parks and Recreation Commission Meeting Agenda, Presentation, and Report • Bicycle-Pedestrian Commission Meeting Agenda, Presentation, and Report • City Council Study Session Presentation and Report

3.7 Develop Preferred Conceptual Design Plan
MIG and the City will meet to discuss community input and Commission/Council feedback, recommendations, and direction for a Preferred Concept. This may be one chosen alternative or a combination of alternatives . MIG will produce a single Draft Conceptual Design for the site for review with the City and incorporate feedback into the Final Conceptual Design.

Deliverables:
• Draft Conceptual Design Plan (PDF)
• Final Conceptual Design Plan (PDF)
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3.8 Phase 3 City Coordination and Project Management
MI G's PM and the City will hold weekly update calls with additional project team members attending periodically.

Deliverables:
• Meeting Notes highlighting key decisions
PHASE 4 - DRAFT AND FINAL CONCEPTUAL PLAN

4.1 Develop Draft Conceptual Plan Report
MIG will prepare a draft outline for the Lawrence-Mitty Park and Trail Conceptual Plan. The approach and specific sections will be confirmed with the City, followed by creation of the full draft for City review. The draft conceptual plan will be the culmination of key elements of design, input provided by the public, site study findings, and the physical and jurisdictional constraints of the site. MIG and the City will meet to discuss the City's consolidated review comments and determine final edits.

Deliverables:
• Draft Lawrence-Mitty Park and Trail Conceptual Plan (PDF) • Meeting Notes from Draft Implementation Plan Review Meeting with City staff

4.2 Present Draft Conceptual Plan to Community
MIG recommends that the Draft Conceptual Plan be posted on the City's website for comments due to the difficulty of reviewing a lengthy document in a public meeting. This can be followed by a Zoom Open House, including a brief summary presentation and plenty of time for questions and answers. We will be happy to make adjustments to this plan if the City prefers a different format.

Deliverables:
• JPEGs of major maps and a PDF of the document for the City website • Draft and Final slideshow
• Meeting Agenda and Notes from the Community Presentation/Meeting

4.3 Present Draft Conceptual Plan to Commissions and City Council ( 4) MIG will present the Draft Conceptual Plan to the Park and Recreation Commission, Bicycle­ Pedestrian Commission, Planning Commission and City Council for final input and consideration of minor edits.

Deliverables:
•
•
Draft and Final slideshow
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4.4 Finalize Conceptual Plan
MIG will collect input from meeting reviews and incorporate edits from stakeholders as directed by the City. There will be one (1) Draft Conceptual Plan review meeting with City staff to ensure all design and study elements are incorporated prior to final Conceptual Plan submittal.

Deliverables:
• Lawrence-Mitty Park and Trail Master Plan (2 printed/bound copies; 1 unbound copy; PDF)

4.5 Develop Cost Estimate and Implementation/Phasing Timeline MIG will provide to the City, in a document separate from the Conceptual Plan, a rough order of magnitude cost estimate for implementation of the final conceptual design, including the specifics noted in the RFQ. MIG will also submit a proposed implementation and phasing timeline for completion of the built infrastructure reflected in the adopted Master Plan.

Deliverables:
• Rough Order of Magnitude Cost Estimate for Conceptual Plan Implementation electronic (PDF and Excel)
• Proposed Conceptual Plan implementation and phasing timeline for site improvements with consideration of timeline for jurisdictional permits or permissions in MS Project format. (PDF)

4.6 Present Final Conceptual Plan to City Council for Acceptance MIG will present the Conceptual Plan in collaboration with City staff to City Council for final approval, which is required for adoption as City policy.

Deliverables:
• One (1) Meeting Agenda and Notes from the final Acceptance Meeting

4. 7 Phase 4 City Coordination and Project Management
MI G's PM and the City will hold weekly update calls with additional project team members attending periodically .

Deliverables:
• Meeting Notes highlighting key decisions
PHASE 5 - CEQA
MIG assumes the project will qualify for an Initial Study /Mitigated Negative Declaration (IS/MND) under CEQA and will prepare an analysis of the project according to the CEQA Guidelines and City of Cupertino requirements . The final IS/MND will be presented to the City Council for adoption with the approval of the Conceptual Plan. 1( 246
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5.1 Prepare Administrative Draft Initial Study
MIG will prepare and electronically submit for the City's review an Administrative Draft Initial Study. The submittal will include copies of all technical studies.

Deliverables:
• Administrative Draft Initial Study
• Technical studies - Air quality /greenhouse gas emissions, biological resources, hazardous materials (Updated Phase I Environmental Site Assessment, limited soil testing), transportation (VMT project screening and multimodal/pedestrian safety impact analysis memo)

5.2 Prepare Public Draft Initial Study /Mitigated Negative Declaration MIG will address any comments from the City on the Administrative Draft IS and then produce a Screen Check document for final City approval. Once the Screen Check document is approved, MIG will prepare the Public Draft IS/MND for public circulation and a PDF version for the City to post on the City's website.

Deliverables:
• Screen Check IS
• Public Draft IS/MND for public circulation
• PDF Version Public Draft IS/MND for posting on City's website

5.3 Prepare Final IS/MND, Mitigation Monitoring and Reporting Program, and Notice of Determination
Following conclusion of the 30-day public review period, MIG will prepare the Administrative Draft and Screen Check Response to Comments documents that will contain a summary of all comments received during the public comment period, responses to comments, and changes to the Draft IS text or errata as necessary. Concurrent with the preparation of the Response to Comments, MIG will finalize the Mitigation Monitoring and Reporting Program (MMRP) and prepare a Notice of Determination (NOD) for the City to finalize and submit to the County Clerk's office and the State Office of Planning and Research.

Deliverables:
• Administrative and Screen Check versions of Responses to Comments • Final MMRP
• Draft NOD
• Prepare any required documents containing findings and resolution for certification, public notice, and/or filing of environmental documents as needed

5.4 Attend Public Meetings/Hearings
MI G's CEQA Director will attend one (1) remote community meeting held by the City ( estimated at 2 hours) and two (2) remote public hearings. In addition to the public meetings and hearings, 1]
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the MIG CEQA Director and CEQA Project Manager will attend one (1) remote CEQA Kick-off meeting with City staff.

5.5 Phase 5 City Coordination and Project Management
MI G's CEQA Project Manager will be the primary point of contact for CEQA work and will keep the City apprised of project progress at key points. Weekly meetings are not anticipated in this phase.

Assumptions, Exclusions & Additional Services
The MIG team's assumptions for included scope and level of work effort are based on the scope of work outline in the RFQ. If a need arises in the Phase 1 analysis period for additional survey information or studies, beyond what is currently scoped, the City and MIG team will work together to determine the corresponding effort and fee to deliver these additional scope items. All meetings, except where noted, are assumed to be remote via screen share, which enables more team members to participate efficiently. A single round of consolidated comments for each City review item is assumed.

Additional Services:

The MIG Team has a broad range of experience, skills and services. The following is a non­ exhaustive list of items that are not included in this scope but could be provided as additional services if they are needed or desired by the City:
• Use of Maptionnaire is noted as an Optional Task/ Additional Service, and could supplement the public survey task
• Additional community engagement beyond the scoped items in the process (including digital advertisement, intercept surveys, additional surveys/workshops/open houses/pop-up events).
• Additional public meetings beyond the scoped items in the process (including attending City Council meetings, public hearings, hearing examiner meetings, public open houses, and local association meetings).
• City project team meetings beyond those listed
• Additional design alternative drafts or renderings other than those listed. • Development, Documentation and Implementation of Design Phases other than listed. • Preparation of construction documents .
• Construction Administration services.
• Preparation of special studies outside our scope of work. • Intensive research and testing to determine conditions of existing site utilities (i.e., potholing, smoke testing, dye testing, pressure testing, fire flow testing, videotaping, etc.). • Utility Relocation Plans
• Supplemental surveying services
• Appeal, Design Exception, and Alternative Review applications . • Services related to future facilities and improvements. 248
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• Design of water capture/re-use systems, pump stations, sump pumps, or force mains for sanitary sewer or storm drainage systems, if required.
• Design of systems to comply with or obtain LEED certification, including preparation of LEED documentation and addressing review comments from the USGBC. • Design for areas outside of the limits noted in the RFQ. • Value Engineering. If the MIG Team is needed to assist with VE and/or bid negotiations, it is available on a Time and Materials basis.

Project Scope Assumptions:
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CLIENT: 'The City' refers to the City of Cupertino's Lawrence Mitty project team .

DELIVERABLES: Unless otherwise indicated, all deliverables will be provided in PDF format. Native files will be created in software selected at the consultant team's discretion. If the City desires printed copies or specific file formats, the MIG Team is happy to work with the City to develop a strategy that meets the project's budget and needs .

IN-PERSON MEETINGS: Team meetings and most community engagement events are assumed to be virtual with some limited outdoor engagement events where noted.

TRANSLATION: All documentation will be in English; however, as an additional service, the MIG Team can provide exhibits in other languages.

CONSOLIDATED COMMENTS: The City will provide MIG with (1) set of vetted and consolidated comments from all parties/agencies in all tasks involving review and feedback.

PERMIT FEES: All permit fees and agency charges will be paid by others, if applicable .

OFFS/TE UTILITIES/STREET/PARKING DESIGN: Offsite utility or street/parking design beyond the identified park and trail area is not included in this proposal.

ENVIRONMENTAL WORK: Floodplain, wetland, soil remediation or environmental work outside of what is noted is not included in this proposal.

CONSTRUCT/ON TESTING+ INSPECTIONS: Not included .
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FIRST AMENDMENT TO AGREEMENT 402 BETWEEN

THE CITY OF CUPERTINO AND MIG, INC FOR

COMPLETION OF THE LAWRENCE-MITTY PARK

AND TRAIL MASTER PLAN
This First Amendment to Agreement 402 between the City of Cupertino and MIG, Inc., is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and MIG, Inc., a Corporation ("Contractor") whose address is 2055 Junction Ave., Suite 205, San Jose, CA 95131, and is made with reference to the following:

RECITALS:

A. On December 09, 2021 Agreement 402 ("Agreement") was entered into by and between City and Contractor for Completion of the Lawrence-Mitty Park and Trail Master Plan.

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. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:

Maximum Compensation: City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $343,784.00 ("Contract Price"), based on the budget and rates set forth in Exhibit C, Compensation, and attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. Exhibit A of the Agreement is modified to include Exhibit A-1, Additional Services, attached hereto .

2. Paragraph 4.3 Additional Services of the Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed $28,500.00. Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance with the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis, Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge ("Reimbursable Expenses"). Consultant will not be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. Exhibit A of the Agreement is modified to include Exhibit A-1, Additional Services, 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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IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO MIG, INC.

J7m Throop By ___________ _ CUt-~~ By _________ _
Title City Manager Title Vice President/ Chief Development Officer Date Feb 28, 2022 Date Feb 25, 2022

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date Feb 28, 2022
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February 17, 2022
Lisa Cameli, Project Manager
City of Cupertino
City Hall
10300 Torre Ave.

Cupertino, CA 95014
Exhibit A-1
Re: Additional Services Lawrence-Mitty Park and Trail Master Plan (MIG proj. no. 30903) Dear Lisa,
As identified at our site visit and discussed in email follow up, there are several additional site study needs for the Lawrence Mitty project that will enable our team to prepare complete Phase 1 technical studies. The following summarizes our request for additional work and fees that are above and beyond the original contract, signed Dec . 9, 2021 . All other terms in the original contract remain in effect.

Following is a summary of our additional services request:

Site Survey Work (by BKF) ..................................... ......................................... $20,000 BKF will survey the additional trees and catch basins not shown on the provided site survey by Alta. Work will be tracked on a time and materials basis and may not require full funds to complete. The amount listed is the maximum . Details:
o It will take about 5 days of work in the field to pick up all the trees based on the Arborist markup of the ALTA Survey area and onsite, inside the walls and fencing along Lawrence Expressway . o The control for the tree survey will be linked to the Alta survey control on the same datum.
o The tree survey information will be converted to CAD and shown on an Exhibit showing the ALTA survey linework as well. o The 2 outfall pipes visually located in the creek area will have their exiting inverts dipped.

Tree Assessment (by SBCA Tree Consulting) ............................................... $4,600 The arborist scope, per the RFO, was based on assessing the quantity of trees shown on the provided Alta survey. There are now more trees, which require tagging and additional assessment time . Work is tracked on a Per Tree basis and this is the amount needed to complete the site work and final tree count . See attached modified proposal and rate sheet for additional detail.

PLANNINGIDESIGNICOMMUNICATIONSIMANAGEMENTISCIENCEITECHNOLOGY 800 Hears t Avenue • Berkeley, CA 94710 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 252 CC 04-16-2024

Lisa Cameli
February 17, 2022

Noise Study (by MIG) ........................................................................................ $3,900 This covers the additional labor for switching from the approved ambient noise survey with unattended long-term measurements to the current approach involv ing attended short-term measurements. See attached Noise Study Budget Memo for additional detail, along with the Noise Study Methods document, which outlines the protocol .

Total:$ 28,500
Please feel free to contact us with any questions or additional information needed.

Sincerely,
2::911 :YQ
Principal, MIG
Please sign below to indicate your agreement to the terms outlined in this letter as a revision to the original contract and budget.

Lisa Cameli, Project Manager
City of Cupertino
Date
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S<BCJl Tree Consu{ting
1534 Rose St
Crockett, CA 94525
Phone# 510-787-3075
Fax# 510-787-3065
E-mail: [email protected]
Web Site: www.sbcatree.com
Name / Address
MIG, Inc.
800 Hearst Avenue
Berkeley, CAiifornia 94710
Item Description
Tree Survey
Proposal to Provide Arborist Services - Lawrence-Mitty Park and Trails Survey all trees identified in the scope provided by MIG, Inc. Record data on:

Report
Meeting
Office
- Species
- Common Name
-DBH
- Height
- Spread
- Flow liHe damage
- Health and structural condition
- Suitability for retention
- PruHiHg or health mitigatioll. reeommell.datioll.s
- RPZ (Root Protection Zones)
- Pertinent arborist notes
Data will be submitted in Excel data sheets. Tree location map and summary report to be included.

Prepare report to address System Master Plan and City objectives to create open spaces. Provide Tree Protection Specifications for trees where underground improvements will enroach into Root Protection Zones. Identify existing trees or plant materials on abutting properties that could influence site design or be impacted by the project.

Attend (I) pre-inventory meeting with City Project Manager and Arborist. Two arborists.

Optional· Report modifications based on City review and approval of arborist report.

Arborist will only charge for services rendered The amount of this invoice will not be exceeded without prior written approval of MIG and the City of Cupertino.

Estimate
Date Estimate#
9/9/2021 21-578
2/14/2022
Qty
H-0
364
2 5
Project
Lawrence-Mitty
Rate
~
$25
Total
4,500.00
$9,100
5,000.00 5,000.00
250.00 500.00
200.00 1,000.00
Sent Out
Total $11,000.00
$15,600
Difference of $4,600
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As of: 7-1-21

ARBORIST SCHEDULE OF RATES
S(}30f. <I~/E CONSV£'11Nq
1534 Rose Street
Crockett, CA 94525
Phone(510) 787-3075
Fax(510)787-3065
E-mail: [email protected], [email protected]
Website: www .sbcatree .com
Stephen Batchelder, Consulting Arborist
WC ISA Certified Arborist #0228A
CaUFC Certified Urban Forester # 134
State Contractor License (C-27) 533675
FEDERAL TAX EIN # 32-0512307
Insured: Liability, E&O and Workman's Comp.

Molly Batchelder, Consulting Arborist
WC ISA Certified Arborist #9613A
Tree Risk Assessment Qualified (TRAQ)
Description of Services
First Visit - (2 arborists)
Standard Rate for Arborist Services:

Travel Time: Time over 30 min from office.

Arborist Reports:

Rates
$250 per hr.
$200 per hr.
$150 per hr.
$200 per page
Tree Appraisal Reports:

Tree Surveys:
$250 for first tree, $25 per each additional tree
$1200 or $25 per tree
Legal : Depositions and Expert Witness
• Soil & Tissue Analysis:
o Samples are sent to a laboratory for analysis.
• Plant Pathologist
o Culture and identification by plant pathologist
Out of Town Daily Rate Consulting (10 hr.):

Rush fee:

City Rates are by Contract
Payment : Due upon receipt of services and invoice.

End
$250 per hour
$100 per sample
$100 per sample
$2000 + expenses
$500
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To:

CC:

Memorandum
Lisa Cameli, City of Cupertino
Jan Eiesland, MIG
2055 JUNCTION AVE. , SUITE 205
SAN JOSE , CA 95131
650.327.0429
WWW .MIGCOM .COM
From: Chris Dugan
Re:

Date:

Lawrence Mitty Park and Trail Master Plan Noise Study Budget Amendment February 1, 2022
MIG, Inc. (MIG) has prepared this memorandum at the request of the City of Cupertino (City).

This memorandum briefly summarizes a budget amendment request for the Lawrence Mitty Park and Trail Master Plan Noise Study.
i=Mtffii4i,Mii-iiMiil44·11t41-
MIG·s approved scope of work for the Master Plan included 10 hours of staff time and $269 in expenses related to the ambient noise monitoring survey needed to prepare the Master Plan's Noise Study. This level of effort assumed
• An initial trip to the site to install two long-term (LT) noise meters and conduct four hours of short-term (ST) noise monitoring. The LT meters were assumed to run for 48 to 72 hours.
• A second trip to the site to breakdown and remove LT meters from the site.

Subsequent to the City's approval of MIG's scope, the City and MIG have determined that it is not feasible to leave noise monitoring equipment onsite overnight due to safety and security concerns. A subsequent plan to install an LT meter at a private residence to the west of the Master Plan area was evaluated and determined to be infeasible due to legal and scheduling concerns. Accordingly, MIG has modified its approach to conduct two short-term ambient noise surveys of the Master Plan area. This change results in more staff time at the site (from 6 to 24) hours to account for adequate monitoring of a variety of traffic conditions) , as well as additional data download, qa/qc review, and processing time, but currently does not increase the number of trips to the site as only two ambient noise monitoring surveys are currently proposed by MIG.

MIG's ambient noise monitoring survey methodology is described in a separate memo (MIG 2022) .

The budget amendment request to support the current ambient noise monitoring survey methodology is summarized in the table below.

PLANNINGIDES I GNICOMMUN I CA TI O N SIMANAGEMENTI S C I ENC E ITEC H NOLOG Y 2055 Ju nctio n Avenue, Suite 205 • San Jose, CA 95131 • USA • 650-327-0429 • www.migcom.com Offices in: California • Co lorado • Oregon • Texas • Washington 256
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Lawrence Mitty Park and Trail Master Plan Noise Study Budget Amendment Page2 Lawrence Mitty Park and Trail Master Plan Noise Study Budget Amendment Request Task/Subtask Labor Cost Expenses Total Budget

APPROVED NOISE STUDY

1. 7 Noise Study $11,430 $537 $11,967
Ambient Noise Survey $2,100 $537 $2,637

REQUESTED NOISE STUDY
1 . 7 Noise Study $15,330 $537 $15,867
Ambient Noise Survey $6,000 $537 $6,537

NETBUDGETAMENDMENT

1. 7 Noise Study $+3,900 $0 +$3,900
Ambient Noise Survey +$3,900 $0 +$3,900
References
The following references were used to prepare this memorandum.

MIG 2022. Draft Memorandum - Lawrence Mitty Park and Trail Master Plan - Noise Study Methodology. February 1, 2022.

MIG, Inc. February 1, 2022
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DRAFT Memorandum
To:
2055 JUNCTION AVE ., SUITE 205
SAN JOSE, CA 95131
650.327.0429
WWW.MIGCOM.COM
CC:

Lisa Cameli, City of Cupertino
Jan Eiesland, MIG
From: Chris Dugan
Re:

Date:

Lawrence Mitty Park and Trail Master Plan - Noise Study Methodology February 1, 2022
MIG, Inc. (MIG) has prepared this memorandum at the request of the City of Cupertino (City).

This memorandum briefly summarizes the methodology that MIG will use to prepare the technical noise study for the proposed Lawrence Mitty Park and Trail Master Plan.

Jitffli=ffii·ii-iiih·l4iil·i·Mlih·HM;U,i·Mt-i·il
1111
As identified by the City (2021 ), "The Lawrence-Mitty site is immediately adjacent to the Lawrence Expressway, an arterial ro1adway that has high volumes of traffic. This traffic causes consistent, high levels of noise. When the site was designated as a stockpiling area for the County and was not typically used by the public this was not problematic. Now that the site will be developed as a park more careful consideration of noise levels needs to be taken and there may be need for acoustical attenuation."
The purposes of th~ technical noise study for the Master Plan are to:
• Document ambient noise levels in the Master Plan area; and • Preliminarily evaluate the potential effectiveness of noise abatement measures for the Master Plan.

MIG will prepare the technical noise study consistent with the guidance and recommendations contained in the California Department of Transportation's (Caltrans) Traffic Noise Protocol and Technical Noise Supplement to the Traffic Noise Protocol (Caltrans 2013, 2020) . These' documents generally outline Caltrans' policies and procedures for collecting ambient noise measurements, evaluating traffic noise impacts, and determining the feasibility of noise barriers for highway projects. MIG notes the proposed Lawrence Mitty Park Project is not a highway project and, therefore , minor deviations from Caltrans ' guidance may occur during ambient noise monitoring, report preparation , etc.

MIG's technical noise study will consist of three main parts:
1) An ambient noise monitoring survey to collect existing noise level data in the vicinity of the Master Plan area.
2) The generation of existing and future noise contour maps for the Master Plan area. 3) The preliminary evaluation of noise abatement measures for the Master Plan.

These tasks are described in more detail below .

P L ANNINGIDES I GNICOMMUN I CAT I ONSIMANAGEMENT I SCIENCE I TECHNOLOG Y 2055 Junction Avenue, Suite 205 • San Jose, CA 95 131 • USA • 650-327-0429 • www.migcom.com 258 CC 04-16-2024

Lawrence Mitty Park and Trail Master Plan Noise Study Methods - DRAFT Page 2 tffii Mffifo•hi,l·l1'i&¥-IIIIII
MIG, Inc. will conduct ambient noise level survey in the vicinity of the Master Plan area. The ambient noise survey will:
• Provide direct observations of existing noise sources at and in the vicinity of the Master Plan area;
• Provide actual measurements of existing noise levels at and in the vicinity of the master Plan, including Lawrence Expressway traffic noise levels; and • Identify if and how noise levels change throughout the Master Plan area.

MIG proposes to measure noise levels at up to 12 sites in the vicinity of the Master Plan area as follows :
• One (1) site location will provide a long-term (LT) record of ambient noise levels at the Project site for the duration of the noise monitoring survey, which is currently anticipated to last between a total of 14 to 16 non-consecutive hours (see schedule discussion below).
• 10 sites will consist of a series of short-term measurements (1- to 2-hours each) throughout the Master Plan area. These short-term sites will assess how noise levels vary from the LT site and across the Master Plan area in general. • One (1) site will occur outside the Master Plan area, on Doyle Road (across Lawrence Expressway). This site will evaluate the performance and effectiveness of the noise barrier (based on actual conditions) on the east side of Lawrence Expressway that are considered representative of the primary park area of the Master Plan.

MIG's preliminary ambient noise survey sites are show in Figures 1 to 3. MIG will collect up to three measurements simultaneously to allow MIG to compare noise levels in one part of the site to measurements in another area and to see how distance, ground cover, and topography may be influencing noise levels. All ambient noise levels will be digitally measured and logged using Larson Davis SoundTrack LxT sound level meters that meet American National Standards Institute requirements for a Type 1 integrating sound level meter. Each sound meter will be calibrated immediately before and after the monitoring period using a reference one-kilohertz (1 kH) check frequency and 114 dB sound pressure level; deviations in calibrated noise levels that exceed acceptability criteria will render measurements invalid (up to a 1 dB difference is generally allowable in most cases). MIG will continuously collect noise levels in 1-minute intervals so that short-term noise events and increases in noise levels above typical background conditions may be captured. MIG will also document meteorological and other pertinent environmental factors that occurred during the noise monitoring (e.g., short-term traffic counts).

All field data and records will be provided to the City in electronic format and as part of the technical noise study at the conclusion of the study.

Tentatively , to ensure the ambient noise monitoring effort captures representative daytime traffic conditions and associated noise levels, MIG proposes to conduct noise monitoring on one (1) weekday and one (1) weekend day. Scheduling options for the ambient noise monitoring include:
• Thursday, February 3rd, from approximately 7 AM to 7 PM, and Saturday, February 6th from approximately 7 AM to 5 PM; or
• Tuesday , February 15th, from approximately 7 AM to 7 PM, and Saturday, February 19th , from approximately 7 AM to 5 PM; or
• Tuesday, February 22nd, from approximately 7 AM to 7 PM, and Saturday , February 26th , --------➔ro · rA:M o--5 P1t11-.-------
MIG, Inc. February 1, 2022
259
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Lawrence Mitty Park and Trail Master Plan Noise Study Methods - DRAFT Figure 1: Ambient Noise Monitoring Locations (Overview) MIG, Inc.

Long-term. Site
Park and Trai Area (Approximate)
Short-term Site
Page3
February 1, 2022
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Lawrence Mitty Park and Trail Master Plan Noise Study Methods - DRAFT Figure 2: Ambient Noise Monitoring Locations (Northern) Lawren~e Mitty Park and Trail
MIG, Inc.

Long-term Site
Park and Trai Area (Approximate)
Short-term Site
Page4
February 1, 2022
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Lawrence Mitty Park and Trail Master Plan Noise Study Methods - DRAFT Page 5 Figure 3: Ambient Noise Monitoring Locations (Southern) Lawrence Mitty Park" a
MIG, Inc. February 1, 2022
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Lawrence Mitty Park and Trail Master Plan Noise Study Methods - DRAFT Page 6 GiJltJM5Wili,1·11h·•di1iiL·1hM1iiJM-ti
MIG will use the results of the ambient noise monitoring survey to calibrate traffic noise model predictions and generate existing and future noise contour maps for the Master Plan.

The collection of noise measurements adjacent to Lawrence Expressway, combined with the concurrent collection of vehicle count data, will provide direct measurement of noise levels resulting from specific traffic conditions on Lawrence Expressway . Traffic noise modeling will allow MIG to ascertain how traffic noise in the Master Plan area may change with different traffic conditions (e.g., peak hour conditions, typical free-flow conditions). MIG will use SoundPLAN to estimate existing and future typical and peak noise exposure levels on an hourly Leq and a CNEL basis. SoundPLAN is a graphical noise modeling program that incorporates the Federal Highway Administration's Traffic Noise Model (TNM) algorithms for traffic noise predictions (also used by Caltrans). The ambient noise monitoring data will allow MIG to compare measured traffic noise levels against model-predicted traffic noise levels and calibrate and refine model predictions for traffic scenarios that are different than those which occurred at the time the ambient noise survey was conducted.

The ambient noise survey data, combined with accurate traffic noise model predictions, will be used to generate a noise contour map of noise levels in the park and trail area under existing and future typical and peak traffic conditions. This map will allow designers and decision makers to visually understand the magnitude and variability of noise levels in the Master Plan area.

MIG will use the noise contour maps described above to identify, in coordination with the City, preliminary noise abatement considerations, including what, if any, noise exposure standard or guidelines are relevant to the project, and what, if any, feasible noise abatement measures may be available to reduce noise levels in the Master Plan area.

MIG will evaluate the noise reduction effectiveness of three (3) different noise barrier options .

This may include a combination of different barrier locations, different barrier materials (e.g. ,solid wall or earthen berm), and/or different barrier design options (e.g., reflective barrier vs. adsorptive barrier).

MIG will build on the traffic noise modeling and noise contour maps described above and use SoundPLAN to model the effectiveness of potential barrier options. Using SoundPLAN, MIG will prepare updated noise contour maps showing the predicted effectiveness of each of the selected barrier options and the resulting noise levels in the Master Plan area with the noise abatement measure.

References
The following references were used to prepare this memorandum.

Caltrans 2013. Technical Noise Supplement to the Traffic Noise Analysis Protocol . September 2013.
___ 2020. Traffic Noise Analysis Protocol for New Highway Construction , Reconstruction , and Retrofit Barrier Projects . April 2020.

City of Cupertino 2021. Cupertino General Plan Community Vision 2015 - 2040 . December 2014.

MIG, Inc. February 1, 2022
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CITY OF
II

PUBLIC WORKS DEPARTMENT

CITY HALL

CUPERTINO
10300 TORRE AVENUE • CUPERTINO , CA 9501 4-3255
TELEPHONE: (408) 777-3354 • FAX: (408) 777-3333
CUPERTINO.ORG
Project Lawrence Mitty Master Plan
Contract Number
Date 22-Feb-22
Desianer MIG.Inc.

Contracor 800 Hearst Avenue
Address Berkeley, CA 94710
Distribution SusanM@Cupertino .org;
[email protected];
LisaC@Cupertino .org
SteveL@miacom .com
Amendment#
Consultant #
Description
Schedule Impact
Revised Design
Completion Date:

Amount
TOTAL FOR THIS PROJECT, TO DATE:

Amendment # 1
CIP Proi # 2021-10
NWS# P LM 002.02.02
Acct'g # 280-99-009
1 5146
Additional Site Tree Inventory to record trees 4" in Diameter and greater . Additional Survey Services for additiona trees identified . Additional Services related alteration s to Noise Study Methods . See attached Scope of Work Documents for A rn,:,nrlrn,=,nt :H 1
N/A
N/AI
28,500.00
Contract Amount : Design Services $ 293,784.00
50,000.00 City Council Approved Contingency $
City Council Approved Appropriation Limit $ 343,784.00
Design Services Contract Amendments
Ori inal Contract Amount: $ 293,784.00
CA# Description Amount
$ 28,500.00
Total Contract Amendments $ 28,500.00
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