CC 06-04-2024 Searchable Packet.pdf — Cupertino City Council, June 4, 2024 (part 1 of 5)

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10300 Torre Avenue and 10350 Torre Avenue and via Teleconference Tuesday, June 4, 2024
6:00 PM
Non-Televised Closed Session (6:00) and Televised Open Session Regular Meeting (6:45)

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the following ways:
1) Appear in person for Closed Session in City Hall, Conference Room C or for Open Session in Cupertino Community Hall. Members of the public may provide oral public comments pertaining to the agenda prior to the beginning of Closed Session and after Roll Call.

Members of the public may provide oral public comments during the Open Session as follows:

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

Members of the audience who address the City Council must come to the lectern/microphone, and are requested to complete a Speaker Card and identify themselves.

Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments.
2) E-mail comments for Closed Session or Open Session by 4:00 p.m. on Tuesday, June 4 to

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the Council at [email protected]. These e-mail comments will also be forwarded to Councilmembers by the City Clerk’s office before the meeting and posted to the City’s website after the meeting. Members of the public that wish to share a document must email [email protected] prior to the meeting.
3) Open Session Teleconferencing Instructions
To address the City Council, click on the link below to register in advance and access the meeting:

Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_jLGVrA0dRfyQkifPHj4faw Phone
Dial: 669-900-6833 and enter Webinar ID: 945 9103 9858 (Type *9 to raise hand to speak, *6 to unmute yourself). Unregistered participants will be called on by the last four digits of their phone number.

Or an H.323/SIP room system:

H.323:
162.255.37.11 (US West)
162.255.36.11 (US East)
Meeting ID: 945 9103 9858
SIP: [email protected]
After registering, you will receive a confirmation email containing information about joining the webinar.

Please read the following instructions carefully:

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

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

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3. When the Mayor calls for the item on which you wish to speak, click on “raise hand,” or, if you are calling in, press *9. Speakers will be notified shortly before they are called to speak.

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

5. Members of the public that wish to share a document must email [email protected] prior to the meeting. These documents will be posted to the City’s website after the meeting.

ROLL CALL - 6:00 PM
10300 Torre Avenue, Conference Room C

CLOSED SESSION

1. Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (Harshit Sharma et al. v. City of Cupertino, Santa Clara County Superior Court Case No. 22CV39297)
RECESS
CALL TO ORDER - 6:45 PM
10350 Torre Avenue, Community Hall and via Teleconference

PLEDGE OF ALLEGIANCE

ROLL CALL

CLOSED SESSION REPORT

CEREMONIAL ITEMS

2. Subject: Proclamation recognizing June as Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Pride Month
Recommended Action: Present proclamation recognizing June as Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Pride Month
A - Proclamation

POSTPONEMENTS AND ORDERS OF THE DAY

ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Council on any matter within the jurisdiction of the Council and not on the agenda for discussion, including informational items. The total time for Oral Communications will ordinarily be limited to one hour. Individual speakers are limited to three (3) minutes. As necessary, the Chair may further limit the time allowed to individual

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speakers, or reschedule remaining comments to the end of the meeting on a first come first heard basis, with priority given to students. In most cases, State law will prohibit the Council from discussing or making any decisions with respect to a matter not listed on the agenda. A councilmember may, however, briefly respond to statements made or questions posed by speakers. A councilmember may also ask a question for clarification, provide a reference for factual information, request staff to report back concerning a matter, or request that an item be added to a future City Council agenda in response to public comment.

CONSENT CALENDAR (Items 3-12)
Items appearing on the Consent Calendar are considered routine City business and may be approved by one motion. Typical items may include meeting minutes, awards of contracts, the ratification of accounts payable, and second readings of ordinances. Any member of the Council may request to have an item removed from the Consent Calendar based on the rules set forth in the City Council Procedures Manual. Members of the public may provide input on one or more consent calendar items when the Mayor asks for public comments on the Consent Calendar.

3. Subject: Approval of amended May 7, 2024 City Council minutes Recommended Action: Approve the amended May 7, 2024 City Council minutes Staff Report
A – Amended May 7, 2024 City Council Minutes (redline)

4. Subject: Approval of the May 14, 2024 (Closed Session) City Council minutes Recommended Action: Approve the May 14, 2024 (Closed Session) City Council minutes
A - Draft Minutes

5. Subject: Approval of the May 14, 2024 (Open Session) City Council minutes Recommended Action: Approve the May 14, 2024 City Council minutes A - Draft Minutes

6. Subject: Approval of the May 21, 2024 City Council minutes Recommended Action: Approve the May 21, 2024 City Council minutes A - Draft Minutes

7. Subject: Law Enforcement Contract Extension with the County of Santa Clara Sheriff's Office
Recommended Action: Authorize the City Manager to extend the existing law enforcement contract with the County of Santa Clara Sheriff's Office for two years, from July 1, 2024, through July 1, 2026, and amend the terms of the agreement as needed during the extension

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Staff Report
A - 14-127 Law Enforcement Contract with the County of Santa Clara_Original B - Law Enforcement Contract - First Amendment to Agreement

8. Subject: Construction contract and a proposed amendment to the design consultant agreement and construction management services for the All-Inclusive Playground at Jollyman Park project
Recommended Action: 1. Award a construction contract for the All-Inclusive Playground at Jollyman Park Project (budget unit 420-99-051) in the amount of $3,863,430 to QLM, Inc.;

2. Authorize the City Manager to execute the contract with QLM, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders with QLM, Inc., up to a contingency amount of $386,350 (10%), for a total contract amount of $4,249,780;

4. Authorize the City Manager to execute an amendment to the agreement with MIG, Inc. for Design Professional Services on the All-Inclusive Playground at Jollyman Park project (420-99-051, PO# 2022-0326) increasing the contract amount by $45,000, for a new total not-to-exceed contract amount of $467,411;

5. Authorize the City Manager to execute a professional services agreement with 4Leaf, Inc. for construction management services for a total not-to-exceed contract amount of $393,081; and

6. Adopt Resolution No. 24-049 approving budget modification #2324-304, approving a transfer out of $500,000 from the Park Dedication Fund (280) and a transfer into the All-Inclusive Playground at Jollyman Park Project (budget unit 420-99-051) and appropriating $500,000 to this project.

Staff Report
A - Draft Contract - QLM, Inc.

B - DRAFT Agreement Amendment - MIG, Inc.

C - DRAFT Agreement - 4Leaf, Inc.

D - Draft Resolution

9. Subject: Approve an agreement with the City of San Jose to provide animal management services for a not-to-exceed amount of $330,730 for fiscal year 2024-2025, $343,959.20 for fiscal year 2025-2026, and $357,717.57 for fiscal year 2026-2027, for a total of $1,032,406.70, and delegate authority to the City Manager to award contract extensions through June 30, 2033, depending on approved budget and acceptable services.

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Recommended Action: That the City Council the agreement (Attachment A) to:

1. Authorize the City Manager to execute an agreement with City of San Jose to provide animal management services including Field Services, Shelter Services, and Dead Animal Services for a total not-to-exceed amount of $1,032,406.70 for three years between fiscal years 2024-2025 and 2026-2027.

2. Authorize the City Manager to execute up to two (2) 3-year contract extensions, provided budget is available and services remain acceptable.

Staff Report
A - Draft Agreement

10. Subject: Memorandum of Understanding (MOU) between the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee (TAC) member jurisdictions establishing ongoing management and operation of the edible food recovery program to comply with the requirements of Senate Bill (SB) 1383 (California's Short-Lived Climate Pollutant Reduction Strategy).

Recommended Action: Authorize the City Manager to sign a MOU between the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee (TAC) member jurisdictions establishing ongoing management and operation of the edible food recovery program to comply with the requirements of SB 1383 (California's Short-Lived Climate Pollutant Reduction Strategy).

Staff Report
A - Draft MOU for Countywide Edible Food Recovery

11. Subject: Memorandums of Agreement on behalf of the City of Cupertino, as a coalition partner with other partner agencies, for the purpose of securing grant funds from the United States Environmental Protection Agency’s (EPA) Climate Pollution Reduction Grants program for funding electrification of municipal facilities and implementing a regional reusable takeout foodware program.

Recommended Action: Adopt Resolution 24-050 authorizing the City Manager to:
1) Negotiate and sign Memorandums of Agreement and any amendments on behalf of the City of Cupertino, as a coalition partner with other partner agencies, for the purpose of securing grant funds from the EPA Climate Pollution Reduction Grants program for funding electrification of municipal facilities and implementing a regional reusable takeout foodware program; and
2) Negotiate and execute any documents necessary to accept and effectuate the grants.

Staff Report
A - Draft MOA - Public Facility Resiliency Implementation B - Draft MOA - Community-Scale Reusable Foodware System C - Draft Resolution

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12. Subject: Three-year agreement between the City of Cupertino and the County of Santa Clara (County) for the City's participation in the Countywide Household Hazardous Waste (HHW) Collection Program for Fiscal Years (FY) 2024/2025-2026/2027 using earmarked funds within the Resource Recovery Fund 520.

Recommended Action: Adopt Resolution No. 24-051 authorizing the City Manager to sign a three-year agreement between the City of Cupertino and the County of Santa Clara (County) for the City's participation in the Countywide Household Hazardous Waste (HHW) Collection Program for Fiscal Years (FY) 2024/2025-2026/2027 using earmarked funds within the Resource Recovery Fund 520.

Staff Report
A - AB 939 Implementation Fee Agreement FY 2025-2027
B - Countywide HHW Program Agreement FY 2025-2027
C - Draft Resolution

PUBLIC HEARINGS
Effective January 1, 2023, Government Code Section 65103.5 (SB 1214) limits the distribution of copyrighted material associated with the review of development projects. Members of the public wishing to view plans that cannot otherwise be distributed under SB 1214 may make an appointment with the Planning Division to view them at City Hall by sending an email to [email protected]. Plans will also be made available digitally during the hearing to consider the proposal.

13. Subject: Approve the renewal (with no increase) of the 1992 Storm Drain Fee and renewal of the 2019 Clean Water and Storm Protection Fee with a 2.62% increase Recommended Action: Adopt:

1. Resolution No. 24-052 (Attachment A) approving the renewal and collection of the 1992 Storm Drain Fee with no increase in rates for Fiscal Year (FY) 2024-25

2. Resolution No. 24-053 (Attachment B) approving the renewal and collection of the 2019 Clean Water and Storm Protection Fee with a 2.62% increase in rates for FY 2024- 25 Presenter: Ursula Syrova, Environmental Programs and Sustainability Manager Staff Report
A - Draft Resolution 1992 Fee
B - Draft Resolution 2019 Fee
C - Clean Water and Storm Protection Fee Ordinance with Fee Report

14. Subject: Consider the Recommended Operating and Capital Improvement Program Budgets for Fiscal Year (FY) 2024-25, adoption of the Operating and Capital Improvement Program Budgets for FY 2024-25, establishment of the Appropriation Limit, and related actions.

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Recommended Action: 1. Adopt Resolution No. 24-054 establishing an Operating Budget of $120,495,113 for FY 2024-25, which includes the following changes to the FY 2024-25 Proposed Budget, published on May 1, 2024:
a. Approve the operating budget of $120,392,308 outlined in the FY 2024-25 Proposed Budget.
b. Approve additional appropriations of $32,500 for the Community Funding Grant Program as included in Attachment D.
c. Approve additional appropriations of $3,905 for festival costs as included in Attachment D.
d. Approve additional appropriations of $2,050 for the Artist Awards program as included in Attachment D.
e. Approve additional appropriations of $64,350 for the animal services contract as included in Attachment D.
f. Approve a reduction in revenues of $21,200 due to the elimination of the proposed permit parking and crane lift fees as included in Attachment D. g. Approve additional revenues of $212,614 for SB 1 as included in Attachment D. h. Approve Community Funding Grants for the following organizations, allocating a total of $32,500:
i. AINAK: $2,750
ii. Cupertino Little League: $16,000
iii. Cupertino Symphonic Band: $3,000
iv. Rotary Club of Cupertino: $4,000
v. STEMBoost Corporation: $3,000
vi. West Valley Community Services: $3,750

2. Adopt Resolution No. 24-055 establishing a Capital Improvement Program Budget of $26,151,380 for FY 2024-25

3. Adopt Resolution No. 24-056 establishing an Appropriation Limit of $132,542,385 for FY 2024-25
Presenters: Kristina Alfaro, Director of Administrative Services and Thomas Leung, Budget Manager
Staff Report
A – Draft Resolution – Operating Budget for Fiscal Year 2024-25 B – Draft Resolution – Capital Budget for Fiscal Year 2024-25 C – Draft Resolution – Appropriations Limit for Fiscal Year 2024-25 D - Budget Adjustments Summary and Detail
E - Appropriation Limit for Fiscal Year 2024-25
F – Appropriation Limit Price and Population Factors for Fiscal Year 2024-25 G – Proposed Budget Study Session Supplemental Report
H - Planning Commission Adopted Resolution
I - Adopted FY 2024-25 City Work Program Budget Details ACTION CALENDAR - None

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ITEMS REMOVED FROM THE CONSENT CALENDAR

CITY MANAGER REPORT

ORAL COMMUNICATIONS - CONTINUED

COUNCILMEMBER REPORTS

15. Subject: Councilmember Reports
A - Councilmember Report, Fruen
B - Councilmember Report, Mohan
C - Councilmember Report, Moore
D - Councilmember Report, Wei

FUTURE AGENDA ITEMS

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

For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 95014; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

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

Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal Code §2.08.096. Contact the City Clerk’s office for more information or go to http://www.cupertino.org/cityclerk for a reconsideration petition form.

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

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

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

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

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CITY OF CUPERTINO
Agenda Item
24-13112 Agenda Date: 6/4/2024
Agenda #: 1.

Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (Harshit Sharma et al. v. City of Cupertino, Santa Clara County Superior Court Case No. 22CV39297) CITY OF CUPERTINO Page 1 of 1 Printed on 5/29/2024
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CITY OF CUPERTINO
Agenda Item
24-12931 Agenda Date: 6/4/2024
Agenda #: 2.

Subject: Proclamation recognizing June as Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Pride Month
Present proclamation recognizing June as Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Pride Month
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CITY OF CUPERTINO
Agenda Item
24-13204 Agenda Date: 6/4/2024
Agenda #: 3.

Subject: Approval of amended May 7, 2024 City Council minutes Approve the amended May 7, 2024 City Council minutes
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CITY COUNCIL STAFF REPORT
Meeting: June 4, 2024
Subject
Approval of amended May 7, 2024 City Council minutes
Recommended Action
Approve amended May 7, 2024 City Council minutes
Reasons for Recommendation
The May 7, 2024 City Council Minutes were approved at the May 21, 2024 meeting. An amendment to the minutes is necessary to make a correction to the vote for the following motion on Page 5:

MOTION: Wei moved and Fruen seconded to direct staff to prepare and send a letter taking a position of support “in concept” for Item 1 Bay Area Affordable Housing Measure (BAHFA) - Affordable Housing.

FRIENDLY AMENDMENT: Fruen made a friendly amendment to include a request for a strong return to source provisions and stronger public oversight of the bond, as per the League of Women Voters Bay Area letter of April 15, 2024 to the ABAG Executive Board. (Wei accepted Fruen’s friendly amendment).

FRIENDLY AMENDMENT: Chao made a friendly amendment for equitable treatment between residential and commercial properties. (Wei declined Chao’s friendly amendment and it was not included in the motion).

The amended motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: MooreNone. Abstain: None. Absent: None.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

California Environmental Quality Act
No California Environmental Quality Act impact.
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_____________________________________
Prepared by: Kirsten Squarcia, City Clerk
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Amended May 7, 2024 City Council Minutes
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Amended

APPROVED MINUTES

CUPERTINO CITY COUNCIL
Tuesday, May 7, 2024
At 6:00 p.m., Mayor Sheila Mohan called the Regular City Council Meeting to order in City Hall Conference Room C, 10300 Torre Avenue.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

CLOSED SESSION
In open session prior to closed session, Mayor Mohan opened the public comment period regarding any item on the agenda. No members of the public requested to speak, and Mayor Mohan closed the public comment period.

1. Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (City of Cupertino v. Jennifer Chang, Santa Clara County Superior Court Case No. 21CV380291)
Council met with legal counsel on the existing litigation City of Cupertino v. Jennifer Chang, Santa Clara County Superior Court Case No. 21CV380291.

RECESS
At 6:40 p.m., Mayor Mohan recessed the meeting. At 6:47 p.m., Mayor Mohan reconvened the meeting and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

CLOSED SESSION REPORT
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City Attorney Chris Jensen conducted the open session report regarding the closed session held at 6:00 PM. City Attorney Jensen reported that there was nothing to report.

Mayor Mohan held a moment of silence for the victims of a traffic collision at the intersection of Foothill and Stevens Creek Boulevards on April 27.

CEREMONIAL ITEMS

2. Subject: Recognition of May as Asian American and Pacific Islander Heritage Month Recommended Action: Recognize May as Asian American and Pacific Islander Heritage Month
Mayor Mohan recognized May as Asian American and Pacific Islander Heritage Month.

3. Subject: Recognition of May as Affordable Housing Month Recommended Action: Recognize May as Affordable Housing Month Emily Ann Ramos, Preservation and Protection Associate, SV@Home provided comments.

Mayor Mohan recognized May as Affordable Housing Month.

POSTPONEMENTS AND ORDERS OF THE DAY – None

ORAL COMMUNICATIONS
Written communications for this item included an email to Council.

The following members of the public spoke:

Alysa Sakkas, representing Cupertino Toyokawa Sister City, discussed the Cherry Blossom Festival.

Sharon Fong, Jean Gasparini, Fran Ellis, Beth Wichmann, Dino Sakkas, Susan Satya, and Gary McCue ceded time to Alysa Sakkas.

Brooke Ezzat discussed City finances and parks and recreation projects.

Rhoda Fry discussed sheriff services, Linda Vista Park project, and City budget and finances.

San R discussed festival event parking, recreation projects, and speed limit enforcement.

CONSENT CALENDAR (Items 4-8)
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Mayor Mohan opened the public comment period and the following members of the public spoke.

Rhoda Fry (Item 8)
Mayor Mohan closed the public comment period.

Councilmembers asked questions and made comments.

MOTION: Wei moved and Chao seconded to approve the items on the Consent Calendar as presented. The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

4. 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(Continued from April 16, 2024) 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

5. Subject: Approval of April 16, 2024 City Council minutes Recommended Action: Approve the April 16, 2024 City Council minutes

6. Subject: Setting a hearing date of June 18, 2024 to declare brush with potential fire hazard a public nuisance and for objections to proposed removal through the Cupertino Brush Abatement Program (Wildland-Urban Interface Fire Area); and adopting a resolution declaring properties as having potential fire hazards from brush and authorizing removal
Recommended Action: Adopt Resolution No 24-037 declaring properties as having potential fire hazards from brush; and set a hearing date of June 18, 2024 to declare brush with potential fire hazard a public nuisance and to hear objections to proposed removal

7. Subject: Appointment of the City of Cupertino's Bicycle Pedestrian Commission (BPC) representative, Hervé Marcy, to the Santa Clara County Valley Transportation Authority (VTA) Bicycle and Pedestrian Advisory Committee (BPAC).

Recommended Action: Appoint Hervé Marcy to the VTA BPAC for the upcoming term, beginning July 1, 2024 and ends June 30, 2026.
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8. Subject: Approve a first amendment with HF&H Consultants, LLC, to provide solid waste consultant services for a not-to-exceed amount of $430,000 and extend the contract date to August 31, 2026.

Recommended Action: 1. Authorize the City Manager to execute a first amendment with HF&H Consultants, LLC, increasing the contract amount by $80,000 for a new total not-to-exceed contract amount of $430,000, and extending the term from August 31, 2025, to August 31, 2026;

2. Approve a Budget Adjustment in the amount of $80,000 in the Resource Recovery Fund for HF&H Consultants, LLC (520-81-801 750-174);

3. Adopt Resolution No. 24-038 approving budget modification #2324-339, approving a Budget Adjustment in the amount of $80,000 in the Resource Recovery Fund for HF&H Consultants, LLC (520-81-801 750-174).

Written communications for this item included a supplemental report and a desk item with staff responses to councilmember questions.

PUBLIC HEARINGS

9. Subject: Fiscal Year 2024-25 Fee Schedule (continued from April 16, 2024) Recommended Action: Continue the item to May 14, 2024
Mayor Mohan opened and then closed the public hearing.

MOTION: Moore moved and Wei seconded to continue the Fiscal Year 2024-25 Fee Schedule item to May 14, 2024. The motion carried with the following vote: Ayes:

Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

ACTION CALENDAR

10. Subject: 2024 Legislative Update
Recommended Action: Receive an overview of pending legislation and direct staff to prepare and send letters taking positions on the following:
1) Bay Area Affordable Housing Measure (BAHFA) - Affordable Housing 2) Assembly Bill (AB) 1779 (Irwin) - Public Safety
3) Senate Bill (SB) 1143 (Allen) - Environmental - Waste Management Presenters: Tina Kapoor, Deputy City Manager and Gonsalves and Son Written communications for this item included a staff presentation, a supplemental report with staff responses to councilmember questions, and an email to Council.

Deputy City Manager Tina Kapoor and Jason Gonsalves, Partner at Joe A. Gonsalves 20 CC 06-04-2024
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and Son, gave a presentation.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public comment period and the following members of the public spoke.

San R
Lisa
Mayor Mohan closed the public comment period.

MOTION: Moore moved and Wei seconded to direct staff to prepare and send a letter taking a position of support for Item 3 Senate Bill (SB) 1143 (Allen) - Environmental - Waste Management and to consider Items 1 and 2 separately. The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain:

None. Absent: None.

MOTION: Moore moved and Chao seconded to direct staff to prepare and send a letter taking a position of support for Item 2 Assembly Bill (AB) 1779 (Irwin) - Public Safety.

The motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

SUBSTITUTE MOTION: Moore moved and Chao seconded a substitute motion to direct staff to prepare and send a letter taking a “watch” position for Item 1 Bay Area Affordable Housing Measure (BAHFA) - Affordable Housing, until further information is available. The substitute motion failed with the following vote: Ayes: Chao and Moore. Noes: Mohan, Fruen, and Wei. Abstain: None. Absent: None.

The amended motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: MooreNone. Abstain: None. Absent: None. 21 CC 06-04-2024
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ITEMS REMOVED FROM THE CONSENT CALENDAR - None

CITY MANAGER REPORT
City Manager Pamela Wu shared a video showing the new City website page location for offagenda informational memos.

ORAL COMMUNICATIONS - CONTINUED – None

COUNCILMEMBER REPORTS

11. Subject: Councilmember Reports
Written communications for this item included desk item Revised Attachment B – Councilmember Report from Vice Mayor Fruen.

Councilmembers reported on their various committees and activities as provided in the published agenda.

FUTURE AGENDA ITEMS
Council members added the following future agenda items:
• Study session on the budgeted headcount for City employees (Chao and Moore) • Review of City Treasurer function and process for ratifying Accounts Payables (Moore and Chao)
• Review of City Organization Chart and City Treasurer and City Attorney position levels (Moore and Chao)

ADJOURNMENT
At 9:08 p.m., Mayor Mohan adjourned the Regular City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
24-13205 Agenda Date: 6/4/2024
Agenda #: 4.

Subject: Approval of the May 14, 2024 (Closed Session) City Council minutes Approve the May 14, 2024 (Closed Session) City Council minutes CITY OF CUPERTINO Page 1 of 1 Printed on 5/29/2024
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, May 14, 2024

SPECIAL MEETING
At 5:30 p.m., Mayor Sheila Mohan called the Special City Council Meeting to order in Cupertino City Hall Conference Room C, 10300 Torre Avenue.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

In open session prior to closed session, Mayor Mohan opened the public comment period regarding any item on the agenda. No members of the public requested to speak, and Mayor Mohan closed the public comment period.

CLOSED SESSION

1. Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (Pacific Autism Center for Education v. City of Cupertino, Santa Clara Superior Court Case No. 23CV423995)
Council conducted the conference with legal counsel regarding the existing litigation (Pacific Autism Center for Education v. City of Cupertino, Santa Clara Superior Court Case No. 23CV423995)

2. Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9 (City of Cupertino v. Jennifer Chang, Santa Clara County Superior Court Case No. 21CV380291).

Council conducted the conference with legal counsel regarding the existing litigation (City of Cupertino v. Jennifer Chang, Santa Clara County Superior Court Case No. 21CV380291).

OPEN SESSION REPORT ON CLOSED SESSION
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City Attorney Jensen conducted the open session report regarding the closed session. City Attorney Jensen reported that there was a reportable action in the matter of City of Cupertino v. Jennifer Chang where Council authorized the City Attorney to enter into a settlement agreement to pay the City $803,358.77, according to terms of a written settlement agreement negotiated by the parties.

ADJOURNMENT
At 6:40 p.m., Mayor Mohan adjourned the Special City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
24-13101 Agenda Date: 6/4/2024
Agenda #: 5.

Subject: Approval of the May 14, 2024 (Open Session) City Council minutes Approve the May 14, 2024 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, May 14, 2024

SPECIAL MEETING
At 6:45 p.m., Mayor Sheila Mohan called the Special City Council Meeting to order to order in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

PUBLIC HEARINGS

1. Subject: 6th Cycle Housing Element and Associated General Plan Amendments Recommended Action: That the City Council adopt Resolution No. 24-039 (Attachment 1) adopting proposed General Plan Amendments, including but not limited to, the Chapter 3 (Land Use and Community Character Element), Chapter 4 (Housing Element), Chapter 5 (Mobility Element), Appendix A (Land Use Definitions, Appendix B (Housing Element Technical Appendix), and Appendix G (Community Vision 2040 General Plan and Zoning Amendments Environmental Assessment).

Written communications for this item included a staff presentation, a supplemental report with an update on Valley Church Properties and staff responses to councilmember questions, desk items for Amended Attachment 1 - Draft Resolution and Amended Exhibit GPA-7 – Draft General Plan Land Use Map, a statement from Councilmember Chao, and emails to Council.

Assistant Community Development Director Luke Connolly and Housing Manager Piu Ghosh gave a presentation.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public hearing and the following people spoke. 27 CC 06-04-2024
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John Schwarz, representing Valley Church
Housing Commissioner Connie Cunningham (representing self) Jennifer Griffin
Dr. Clifton Der Bing, representing St. Jude’s Episcopal Church Edward “Ned” J. Britt
Yvonne Thorstenson
Xinpei Lu
Peggy Griffin
Philip Nguyen
Jean Bedord
Rhoda Fry
Louise Saadati
Parks and Recreation Commissioner Jennifer Shearin, representing Walk Bike Cupertino Planning Commission Chair David Fung, representing the Planning Commission Neil Park-McClintick, representing Cupertino For All
San R
Gauri Chawla
Glenn Fishler
Mayor Mohan closed the public hearing.

At 8:27 p.m., Mayor Mohan recessed the meeting. The meeting reconvened at 8:35 p.m. with all Councilmembers present.

MOTION: Wei moved and Fruen seconded the staff recommended action as amended to adopt Resolution No. 24-039 (Amended Attachment 1 - Draft Resolution) adopting proposed General Plan Amendments, including but not limited to, the Chapter 3 (Land Use and Community Character Element), Chapter 4 (Housing Element), Chapter 5 (Mobility Element), Appendix A (Land Use Definitions, Appendix B (Housing Element Technical Appendix), and Appendix G (Community Vision 2040 General Plan and Zoning Amendments Environmental Assessment); which includes removal of the Dish n Dash (APN: 359 08 029) and all references to it from Draft Appendix B 4 since the site is not counted toward the RHNA and the four Valley Church parcels (APNs: 326 07 022, 326 07 0303, 326 07 031 and 326 07 036) and all references to them from Draft Appendix B

4. The motion passed with the following vote: Ayes: Mohan, Fruen, and Wei. Noes:

Moore. Abstain: Chao. Absent: None.

2. Subject: Fiscal Year 2024-25 Fee Schedule (continued from May 7, 2024) Recommended Action: 1. Adopt Resolution No. 24-040 approving FY 2024-25 Fee Schedules A, B, C, and D. If adopted, new fees will be effective by July 14, 2024. 28 CC 06-04-2024
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2. Adopt Resolution No. 24-041 adopting User Fee Cost Recovery Policy Written communications for this item included a staff presentation and emails to Council.

Finance Manager Jonathan Orozco gave a presentation.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public hearing and the following people spoke.

Peggy Griffin
Jennifer Griffin
Rhoda Fry
San R
Mayor Mohan closed the public hearing.

MOTION: Wei moved and Fruen seconded the staff recommended action as amended to:

1. Adopt Resolution No. 24-040 approving FY 2024-25 Fee Schedules A, B, C, and D; with an amendment to remove the proposed fees in Schedule B – Engineering for Crane Lift $1,415 and Permit Parking Bi-annual Fee $40. New fees will be effective by July 14, 2024; and

2. Adopt Resolution No. 24-041 adopting User Fee Cost Recovery Policy.

The motion passed with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei.

Noes: None. Abstain: None. Absent: None.

At 10:00 p.m., Mayor Mohan recessed the meeting. The meeting reconvened at 10:05 p.m. with all Councilmembers present.

CONSENT CALENDAR
Item 3 was pulled from the Consent Calendar by Councilmember Chao.

3. Subject: Consider accepting the City's Investment Policy Recommended Action: Adopt Resolution No. 24-042 accepting the City's Investment Policy
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This item was pulled from the Consent Calendar for discussion.

Mayor Mohan opened the public comment period and the following people spoke.

Peggy Griffin
Rhoda Fry
San R
Mayor Mohan closed the public comment period.

Councilmembers asked questions and made comments.

MOTION: Chao moved and Wei seconded to adopt Resolution No. 24-042 accepting the City's Investment Policy. The motion passed with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

ADJOURNMENT
At 10:46 p.m., Mayor Mohan adjourned the Special City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
23-12653 Agenda Date: 6/4/2024
Agenda #: 6.

Subject: Approval of the May 21, 2024 City Council minutes Approve the May 21, 2024 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Tuesday, May 21, 2024
At 6:00 p.m., Mayor Sheila Mohan called the Regular City Council Meeting to order in Cupertino City Hall Conference Room C, 10300 Torre Avenue.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

CLOSED SESSION

1. Subject: Workers compensation claim pursuant to Government Code § 54956.95(b) (Ricardo Acevedo v. City of Cupertino, WCAB No. ADJ17329936) Council met with legal counsel on the workers compensation claim (Ricardo Acevedo v.

City of Cupertino, WCAB No. ADJ17329936).

RECESS
At 6:13 p.m., Mayor Mohan recessed the meeting. At 6:45 p.m., Mayor Mohan reconvened the meeting and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Hung Wei. Absent: none.

CLOSED SESSION REPORT
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City Attorney Chris Jensen conducted the open session report regarding the closed session at 6:00 p.m. City Attorney Jensen reported there was no reportable action.

City Attorney Jensen also reported on the special meeting closed session held on May 14. City Attorney Jensen announced a final settlement was reached in the case of City of Cupertino v.

Jennifer Chang, a civil case regarding the embezzlement of City funds. After a successful motion for summary judgment, the City received a settlement agreement for over $800,000 from Ms.

Chang that would collect the balance of principle and all of the interest over to the City. Together with the judgment and the prosecution in the criminal case against Ms. Chang, the City is made whole for the entire amount lost, including principal and interest.

CEREMONIAL ITEMS

2. Subject: Recognition of National Public Works Week, May 19-25, 2024 Recommended Action: Recognize National Public Works Week, May 19-25, 2024 Mayor Mohan recognized May 19-25, 2024 as National Public Works Week.

POSTPONEMENTS AND ORDERS OF THE DAY - None

ORAL COMMUNICATIONS
The following members of the public spoke:

Toby Leavitt, representing the San Francisco Shakespeare Festival, discussed Free Shakespeare in the Park.

Harley Liu discussed bicycle infrastructure and safety.

Rhoda Fry discussed revenue strategies.

Louis Saadati discussed Dog Off-Leash (DOLA) maintenance and amenities.

CONSENT CALENDAR (Items 3-9)
Item 7 was pulled from the Consent Calendar by Councilmembers Chao and Moore.

MOTION: Mohan moved and Wei seconded to hear Item 7 before the Action Calendar. The motion passed with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain:

None. Absent: None.

Mayor Mohan opened the public comment period and, seeing no one, closed the public comment period.
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Councilmembers made comments.

MOTION: Wei moved and Moore seconded to approve the items on the Consent Calendar except as indicated. The motion passed with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

Item 7 was moved before the Action Calendar for consideration.

3. Subject: Approval of May 7, 2024 City Council minutes Recommended Action: Approve the May 7, 2024 City Council minutes Written communications for this item included a desk item report with Amended Attachment A – Draft Minutes (redline).

4. Subject: Ratifying Accounts Payable for the periods ending April 5, 2024; April 12, 2024; April 19, 2024; and April 26, 2024
Recommended Action: A. Adopt Resolution No. 24-043 ratifying Accounts Payable for the Period ending April 5, 2024;
B. Adopt Resolution No. 24-044 ratifying Accounts Payable for the Period ending April 12, 2024;
C. Adopt Resolution No. 24-045 ratifying Accounts Payable for the Period ending April 19, 2024; and
D. Adopt Resolution No. 24-046 ratifying Accounts Payable for the Period ending April 26, 2024
Written communications for this item included a supplemental report with staff responses to councilmember questions and emails to Council.

5. Subject: Approve a First Amendment with Tyler Technologies for continued Enterprise Resource Planning (ERP) Software Maintenance and Support, for a total not-to-exceed amount of $672,924.92 including a 10% contingency and extending the contract date to June 30, 2028.

Recommended Action: Authorize the City Manager to execute a First Amendment with Tyler Technologies for continued Enterprise Resource Planning (ERP) Software Maintenance and Support, for a total not-to-exceed amount of $672,924.92 including a 10% contingency and extending the term of the agreement to June 30, 2028.

6. Subject: Lease agreement with the Regents of the University of California for the Rolling Hills 4-H Club for facilities at the McClellan Ranch Preserve Recommended Action: Authorize the City Manager to execute a new lease agreement 34 CC 06-04-2024
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with the Regents of the University of California for the Rolling Hills 4-H Club for facilities at the McClellan Ranch Preserve for a period of ten years, through August 31, 2034

8. Subject: Approve a Third Amendment with Chandler Asset Management to continue investment advisory services for a total not-to-exceed amount of $600,000 and extending the contract date to December 31, 2028
Recommended Action: Authorize the City Manager to execute the Third Amendment with Chandler Asset Management, reinstating the Professional Services Agreement to continue investment advisory services for a new not-to-exceed contract amount of $600,000 and extending the contract date to December 31, 2028 Written communications for this item included emails to Council.

9. Subject: Approve a Fourth Amendment with Hinderliter, de Llamas & Associates (HdL) to continue Sales, Use, and Transaction Tax Audit services for a total not-toexceed amount of $230,000 Recommended Action: Authorize the City Manager to execute the Fourth Amendment with Hinderliter, de Llamas & Associates (HdL) for continued sales, use, and transaction tax audit services, increasing the contract amount by $60,000 for a new total not-to-exceed contract amount of $230,000
PUBLIC HEARINGS - None

ITEMS REMOVED FROM THE CONSENT CALENDAR

7. Subject: Fiscal Year (FY) 2024/2025 projects proposed to receive funding from the Road Maintenance and Rehabilitation Account (RMRA), created by Senate Bill (SB) 1.

Recommended Action: Adopt Resolution No. 24-047 (Attachment A) establishing a list of projects proposed to be funded by $1,549,796 of SB 1 revenues, estimated to be received in FY 2024/2025.

Written communications for this item included a supplemental report with staff responses to councilmember questions and and emails to Council.

This item was pulled from the Consent Calendar for discussion.

Councilmembers asked questions and made comments.

Public Works Director Chad Mosley answered questions.

Mayor Mohan opened the public comment period and the following members of the 35 CC 06-04-2024
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public spoke.

Rattehalli Sudesh
Planning Commissioner Seema Lindskog, representing Walk Bike Cupertino Parks and Recreation Commissioner Jennifer Shearin (representing self) Peggy Griffin
Aaryan Doshi
Louise Saadati
San R
Caller 1820
Mayor Mohan closed the public comment period.

MOTION: Chao moved and Fruen seconded the staff recommended action to adopt Resolution No. 24-047 establishing a list of projects proposed to be funded by $1,549,796 of SB 1 revenues, estimated to be received in FY 2024/2025. The motion passed with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None.

Absent: None.

ACTION CALENDAR

10. Subject: City Manager’s Third Quarter Financial Report for Fiscal Year 2023-24 Recommended Action: 1. Receive the City Manager’s Third Quarter Financial Report for Fiscal Year 2023-24; and

2. Adopt Resolution No. 24-048 and Budget Modification 2324-340 decreasing appropriations by $464,980 and increasing revenues by $20,010,094 Presenters: Kristina Alfaro, Director of Administrative Services and Thomas Leung, Budget Manager
Written communications for this item included a staff presentation, a supplemental report with staff responses to councilmember questions, and emails to Council.

Director of Administrative Services Kristina Alfaro and Budget Manager Thomas Leung gave a presentation.

Councilmembers asked questions and made comments.

Councilmember Moore added an informational memo for clarification on the De Anza College student intern contract.

Mayor Mohan opened the public comment period and the following members of the 36 CC 06-04-2024
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public spoke.

Peggy Griffin
Rhoda Fry
Lisa
Mayor Mohan closed the public comment period.

MOTION: Fruen moved and Wei seconded the staff recommended action to:

1. Receive the City Manager’s Third Quarter Financial Report for Fiscal Year 2023-24; and

2. Adopt Resolution No. 24-048 and Budget Modification 2324-340 decreasing appropriations by $464,980 and increasing revenues by $20,010,094.

The motion passed with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wei.

Noes: None. Abstain: None. Absent: None.

At 8:08 p.m., Mayor Mohan recessed the meeting. The meeting reconvened at 8:17 p.m. with all Councilmembers present.

STUDY SESSION

11. Subject: Initial Study Session on Fiscal Year (FY) 2024-25 Proposed Operating and Capital Improvement Program Budgets
Recommended Action: Initial Study Session on Fiscal Year (FY) 2024-25 Proposed Operating and Capital Improvement Program Budgets
Presenters: Kristina Alfaro, Director of Administrative Services and Thomas Leung, Budget Manager
Written communications for this item included a staff presentation, a supplemental report with staff responses to councilmember questions, Attachment U - FY 2017-18 Personnel Schedules, Attachment V - FY 2024-25 Personnel Schedules, Attachment W - Report from Baker Tilley on budget assumptions, and emails to Council.

Director of Administrative Services Kristina Alfaro, Budget Manager Thomas Leung, and Steve Tolar, Director with Baker Tilly, gave a presentation.

Councilmembers asked questions and made comments.

Mayor Mohan opened the public comment period and the following members of the public spoke.

Peggy Griffin
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Rhoda Fry
Parks and Recreation Commissioner Jennifer Shearin (representing the Parks and Recreation Commission)
San R
Mayor Mohan closed the public comment period.

MOTION: Chao moved and Moore seconded to:
 Restore the Citizens of Cupertino in the Organization Chart, which has been in Cupertino’s budget reports every year in the past and in other cities’ budget reports
 Remove expensive studies from the FY 2024-25 City Work Program o Postpone Active Transportation Plan $330,000
o Postpone Feasibility study of recycled water $200,000 o Reduce the scope of Sign Ordinance to only address recent concerns, rather than $200,000 overall of the ordinance.

Chao’s motion failed with the following vote: Ayes: Chao and Moore. Noes: Mohan, Fruen, and Wei. Abstain: None. Absent: None.

MOTION: Mohan moved and Fruen seconded to direct staff to bring back the proposed budget for consideration by Council for adoption on June 4. Mohan’s motion passed with the following vote: Ayes: Mohan, Fruen, Moore, and Wei. Noes: None. Abstain: Chao.

Absent: None.

CITY MANAGER REPORT
City Manager Pamela Wu shared a video previewing the upcoming Pride Flag Raising Ceremony.

ORAL COMMUNICATIONS - CONTINUED – None

COUNCILMEMBER REPORTS

12. Subject: Councilmember Reports
Councilmembers reported on their various committees and activities as provided in the published agenda.

FUTURE AGENDA ITEMS
Council did not hear this item.
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ADJOURNMENT
At 10:21 p.m., Mayor Mohan adjourned the Regular City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
24-13069 Agenda Date: 6/4/2024
Agenda #: 7.

Subject: Law Enforcement Contract Extension with the County of Santa Clara Sheriff's Office Authorize the City Manager to extend the existing law enforcement contract with the County of Santa Clara Sheriff's Office for two years, from July 1, 2024, through July 1, 2026, and amend the terms of the agreement as needed during the extension
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CITY COUNCIL STAFF REPORT
Meeting: June 4, 2024
Subject
Law Enforcement Contract Extension with the County of Santa Clara Sheriff's Office Recommended Action
Authorize the City Manager to extend the existing law enforcement contract with the County of Santa Clara Sheriff's Office for two years, from July 1, 2024, through July 1, 2026, and amend the terms of the agreement as needed during the extension.

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

On November 7, 2023, the City Council authorized the City Manager to extend the existing law enforcement contract with the Sheriff's Office for five years. Subsequent to that approval, the County requested a two-year extension with no changes to the existing terms and the payment structure. The first amendment to the agreement is included as Attachment B.

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

The Santa Clara County Board of Supervisors approved the two-year extension on May 21, 2024. The Saratoga City Council (Date TBD) and the Los Altos Hills City Council (Date TBD) will consider authorizing their City Managers to extend the existing law enforcement contracts with the Santa Clara County Sheriff's Office. 41 CC 06-04-2024
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The extension of the current agreement does not authorize a new contract for law enforcement services. Staff will return to City Council to consider new terms for law enforcement services in 2026.

Sustainability Impact
No sustainability impact.

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

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

The figures below do not include any service reductions or modifications to the agreement. Funds that are budgeted and not expended return to the General Fund for future appropriation by the City Council. The ten-year budget forecast includes funds for the ongoing law enforcement contract.
2024/2025 2025/2026 Total
$17,916,051 $18,956,871 $36,872,922
California Environmental Quality Act
The proposed contract is exempt from the California Environmental Quality Act under CEQA Guidelines section 15321(b) (law enforcement activities). _____________________________________
Prepared by: Thomas Chin, Emergency Manager
Reviewed by: Tina Kapoor, Deputy City Manager
Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

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

I. LAW ENFORCEMENT SERVICES
A. Law Enforcement Services

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

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

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

B. Supplemental Services

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

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

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

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

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

D. Plan for Service

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

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

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

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

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

G. Disaster Contingency Plan

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

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

3. A pre-designated Sherifi:s Emergency Operations Center liaison officer shall be notified as soon as possible to respond to the Emergency Operations Center and coordinate law enforcement responsibilities. 45 CC 06-04-2024
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4. The pre- designated Emergency Operations Center liaison officers maintained on the active call list shall be available to the Director of Emergency Services.

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

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

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

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

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

1. The City shall compensate; the County utilizing the Fiscal Year 2014/ 2015 base rate established for general law enforcement and county communications ( hereina'Jrter " law enforcement"). The parties agree that. the annual increase to law enforcement service costs shall be limited to the base rate times the percentage increase in total compensation ( exclusive of PERS) provided to all patrol deputies of the Sheriff s Office, as set forth in a calculation formula agreed and attached hereto as " Exhibit B and incorporated herein by re-Berence, or the annual average for the 12 month period from December to December of the US Department of Labor, Bureau of Labor Statistics, Urban Wage Earners and Clerical Workers Consumer Price Index for the San Francisco- Oakland- San Jose region hereinafter " CPI/W") plus 2%, whichever is less. For years in which compensation is increased in a multi- year contract, the annual increase to law enforcement servicf; costs shall be limited to the average 46 CC 06-04-2024
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compensation increase for each year of the contract, not to exceed CPI/ W plus 2% for each individual year. The increase over the life of the agreement will not exceed the actual cumulative average of CPI/ W plus 2% for the life of the; agreement. In addition, the. city agrees to compensate the county : For any PERS cost increases charged to the County. These contractual costs may be adjusted only one ( 1) time per year to be effective at the start of each fiscal year on July 1.

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

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

4. County shall specify to City, not less than sixty ( 60) days prior to the start of City' s fiscal year the n(-.w projected budget annual contract, amount. a. City shall compensate County at the primary rate, for the Activity" and " Patrol" time expended in the City. Additionally, County shall charge City for meal periods, " beat preparation" time 47 CC 06-04-2024
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and " securing frorr.i beat" time at the rate of ten percent ( 10%) of the above referencc;d hours.
b. Activity" and " Petrol" times are identified through the County Patrol Activity Network Analysis ( COPANA) and Patrol Activity Report ( PAR). A listing of items and their designations as Activity" or " Patrol" are to be set forth in the attachment to the yearly plan for service. The COPANA and PAR software
applications may be updated or exchanged for newer software applications during; the life of the agreement.

B. Supplemental/ Reserve Service

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

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

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

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

C. Base Rent and Operating Costs of Westside Substation

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

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

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

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

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

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

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

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

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

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

III. REPORTS
A. Monthly Reports County shall provide to City on a monthly basis report( s) on the incidence of crime within City. Said report( s) shall differentiate between " law 3 50
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enforcement services" and " supplemental services," and shall be in a format as agreed upon between County and City.

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

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

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

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

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

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

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

VI. TERM OF AGREEMENT
This agreement shall become effective on 7/ 1/ 14, and may be terminated without cause by County or City upon the giving of one- hundred and eighty ( 180) days written notice of such termination to the other party. In the absence of such notice oftermination, this agreement shall be effective for a term of one hundred and twenty ( 120) months until 7/ 1/ 24, subject to any modifications which are made in accordance with the terms and conditions of this agreement. If City elects to terminate this Agreement prior to the expiration of the ten- year term, the City shall nonetheless pay the full amount of its pro9 51 CC 06-04-2024
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rata share remaining on County tenant improvements, moving costs and remaining lease commitments for the West Valley Division substation.

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

COUNTY OF SANTA CLARA CITY OF CUPERTINO
Bay: By:

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

BOARD OF SUPERVISORS
APPR ED AS TO FO AND LEGALITY:

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

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

PROPOSED COSTS
FISCAL YEAR 2014- 2015
LOS ALTOS UNINCORP.

RATES CUPERTINO HILLS SARATOGA CITIES

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

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

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

Cupertino @ $ 166. 06 0
INVESTIGATIVE HOURS:

Proposed Hours 7, 200. 0 600. 0 2, 400. 0 0. 0
Proj Costs FY 2014- 2015 @ $ 159. 02 1, 144,944 95, 412 381, 648 0 FY15 Contract Cities_ Proposed Costs 05- 15- 2014 DSA= O% 53 CC 06-04-2024
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EXHIBIT A

PROPOSED COSTS
FISCAL YEAR 2014- 2015
LOS ALTOS UNINCORP.

RATES CUPERTINO HILLS SARATOGA CITIES
RESERVES ACTIVITY HOURS:

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

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

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

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

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

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

TOTAL SHERIFF LAW ENFORCEMENT COSTS
Projected Costs FY 2014- 2015 9, 498,819 1, 022, 843 4, 600, 540 2, 491, 829 CAPPED COSTS 2014- 2015
Proj Costs Capped @ 4. 6%( CPI+ 2%) Increase 9; 840, 602 1, 060, 170 4,753, 605 0 AMOUNTS BELOW CAP OF 4. 6% 341, 783) 37, 327) 153, 065) 0 FY15 Contract Cities_ Proposed Costs 05- 15- 2014 DSA= O% 54 CC 06-04-2024
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Q
v
Law Enforcement Contract
Exhibit B
Compensation for Services
To calculate the annual projected budget increase to this contract, the following shall apply:

ANNUAL COST OF LIVING INCREASE IN TOTAL COMPENSATION:

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

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

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

Fiscal Year 2014/ 2015:

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

Fiscal Years 2015/ 2016 through 2024/ 2025:

Preceding Base Year Cost;
X
Lesser ofPercentage change in total compensation or Consumer Price Index- Urban Wage Earners and Clerical Workers ( CPUW) plus 2% ( For years in which compensa- 1 ion is increased in a multi- year contract, the annual increase to law en-forcement service costs shall be limited to the average compensation increase for each year of the contract, not to exceed CPUW plus 2% for each individual year.)
Plus
Percentage Change( Increase/ Decrease) in Actual County PERS Costs 55 CC 06-04-2024
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DocuSign Envelope ID: 88826526-1AC1-439F-8DEB-1A46C3C5DA05

5. Replace Exhibit B:

Remove Exhibit B: Compensation for Services in its entirety and replace with Exhibit B:

Law Enforcement Contract Compensation for Services, attached hereto this First Amendment and incorporated herein by this reference.

All other terms and conditions of the Agreement remain in full force and effect. In the event of a conflict between the original Agreement and this First Amendment, this First Amendment controls.

The Agreement as amended constitutes the entire agreement of the parties concerning the subject matter herein and supersedes all prior oral and written agreements, representations and understandings concerning such subject matter.

IN WITNESS WHEREOF, COUNTY and CITY OF CUPERTINO hereby agree to the terms of this First Amendment to the Contract.

COUNTY OF SANTA CLARA
Susan Ellenberg
President, Board of Supervisors
Date: _MA__� _2_1-20_· _24 __
Signed and certified that a copy of this document
has been delivered by electronic or other means to
the President, Board of Supervisors.

CITY OF CUPERTINO
Pamela Wu
City Manager, City of Cupertino
Date: _________ _

APPROVED AS TO FORM AND LEGALITY
Curti�n
Acting Clerk of the
Date: MAY 2 1 2024

APPROVED AS TO FORM AND LEGALITY
OocuSigned by:

Stephanie M. ac son
Deputy County Counsel
Date: __ s_;_1_s 1_ 2_0_2_4 ___ _
Christopher Jensen
City Counsel Attorney, City ofCupertino
Date: ----------
Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian County· Executive: James R. Williams
First Amendment to Agreement By and Between the County of Santa Clara and the City of Cupertino.

Page 2 ends

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CITY OF CUPERTINO
Agenda Item
23-12477 Agenda Date: 6/4/2024
Agenda #: 8.

Subject: Construction contract and a proposed amendment to the design consultant agreement and construction management services for the All-Inclusive Playground at Jollyman Park project

1. Award a construction contract for the All-Inclusive Playground at Jollyman Park Project (budget unit 420-99-051) in the amount of $3,863,430 to QLM, Inc.;

2. Authorize the City Manager to execute the contract with QLM, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders with QLM, Inc., up to a contingency amount of $386,350 (10%), for a total contract amount of $4,249,780;

4. Authorize the City Manager to execute an amendment to the agreement with MIG, Inc. for Design Professional Services on the All-Inclusive Playground at Jollyman Park project (420-99- 051, PO# 2022-0326) increasing the contract amount by $45,000, for a new total not-to-exceed contract amount of $467,411;

5. Authorize the City Manager to execute a professional services agreement with 4Leaf, Inc. for construction management services for a total not-to-exceed contract amount of $393,081; and

CITY OF CUPERTINO Page 1 of 1 Printed on 5/29/2024
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CITY COUNCIL STAFF REPORT
Meeting: June 4, 2024
Subject
Construction contract and a proposed amendment to the design consultant agreement and construction management services for the All-Inclusive Playground at Jollyman Park project.

Recommended Action

1. Award a construction contract for the All-Inclusive Playground at Jollyman Park Project (budget unit 420-99-051) in the amount of $3,863,430 to QLM, Inc.;

2. Authorize the City Manager to execute the contract with QLM, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders with QLM, Inc., up to a contingency amount of $386,350 (10%), for a total contract amount of $4,249,780;

5. Authorize the City Manager to execute a professional services agreement with 4Leaf, Inc. for construction management services for a total not-to-exceed contract amount of $393,081; and

6. Adopt Resolution No. 24-XXX approving budget modification #2324-304, approving a transfer out of $500,000 from the Park Dedication Fund (280) and a transfer into the All-Inclusive Playground at Jollyman Park Project (budget unit 420-99-051) and appropriating $500,000 to this project.

Reasons for Recommendation
Award Construction Contract (Recommended Actions #1-3)
The City of Cupertino advertised the construction scope of work for the All-Inclusive Playground (AIPG) at Jollyman Park Project (Project) on March 28. On April 25, the City received three bids, as detailed in the table below. All three base bids exceed the engineer’s estimate by between 3 – 11%. The bid proposal required the bidders to submit costs for eight deductive alternates. The total base bid and the base bid less all eight bid alternates are listed.
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Construction costs for Capital Improvement Program (CIP) projects have increased dramatically since the Project was initiated in 2019, and more recently since the coronavirus pandemic. The project team pre-emptively created a list of possible scope reductions in the bid documents in the form of deductive alternates, to address the possibility that the bids would come in higher than the construction estimate, and higher than the budget would allow.

Engineer’s Estimate: $3,950,000 (base bid scope)
Bidder Base Bid Amount Total Base Bid less
all 8 Bid Alternate
Deducts
QLM, Inc. $4,077,430 $3,851,430
S&H Construction $4,268,600 $4,023,600
Azul Works, Inc. $4,374,180 $4,146,799
The bid instructions noted that the lowest bid will be the lowest total of the bid prices on the base contract and those additive or deductive items that were specifically identified in the bid solicitation as being used to determine the lowest bid price. By using the above method, the lowest responsive and responsible bidder was QLM, Inc. While the above method was used to determine the lowest responsive bid, the City maintains the discretion to select the deductive alternates. In this case, the City selected one of these alternates to remain within the scope of work. This alternate was for tree procurement and planting, as staff believed the quoted price was very reasonable compared to estimates.

While the base bids are slightly higher than the Engineer’s Estimate, the three bids are within a reasonable range of each other such that staff does not believe that rejecting all bids and initiating a new bid process would produce more favorable results.

The Department of Public Works reviewed QLM, Inc.’s bid documents for completeness, confirmed the contractor’s experience and qualifications, and determined the bid to be the lowest responsive and responsible bid per the instructions to bidders and the Cupertino Municipal Code. Therefore, staff recommends awarding a construction contract to QLM, Inc. for a contract amount of $3,863,430: this total represents the base bid amount and seven of the eight deductive alternates. Staff also recommends a 10% construction contingency be included in the amount of $386,350, for a total contract amount of $4,249,780. Construction contingency allows for unforeseen conditions and is a typical contracting best practice.

A draft construction contract is included as Attachment A, while the full contract documents can be found at https://apps.cupertino.org/details/697. Construction is expected to begin in July 2024 and be completed in April 2025. 60 CC 06-04-2024
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Design Professional Services Agreement Amendment (Recommended Action #4) The City Council awarded MIG, Inc. a contract on December 7, 2021, for design services including site analysis, community engagement, technical documentation, project management, and construction administration. The project has extended a year beyond the original agreement due to additional community engagement meetings and reviews, the permit review process, and staffing resource deficiencies. The scope of services has expanded to include additional services such as utility coordination and public art coordination. Staff recommends amending MIG’s agreement to address the expansion of services noted above as well as the schedule extension.

Professional Services Agreement for Construction Management (Recommended Action #5) Public Works solicited a Request for Qualifications (RFQ) in 2023 for construction management services. From that process, a list of pre-qualified firms was generated. Prequalified firms from that list were requested to provide scope and fee proposals for construction management services for this Project. Two firms, CSG and 4Leaf, submitted proposals. Staff reviewed and evaluated the proposals and recommended 4Leaf to be awarded a contract as the best-qualified proposer for this Project.

Budget Modification (Recommended Action #6)
The funding for this project was initiated in Fiscal Year (FY) 2019. Since that time, construction and professional services costs have increased significantly. The tables below outline the funding and expenditures, which supports the request for a project budget modification.

Project Funding Amount
FY19 - City funding for All-Inclusive Playground at
Jollyman Park Project (420-99-051)
$1,230,000
Santa Clara County AIPG (external) $1,448,201
State of California Specified (external) $1,000,000
PG&E Donation (external) $25,000
FY23 - City funding for Adult-Assistive Restroom facility (420-99-051)
$850,000
FY 24 – City funding from Art In-Lieu fees (specifically for Art procurement and installation
$338,146
subtotal $4,891,347
//
//
//
//
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Current Expenses/Encumbrances Amount
MIG, Inc. ($467,411)
BKF (Restroom & ADA scope of work) ($43,116)
Other consultants (environmental, feasibility, predesign) ($68,478) PG&E (utility work and permit fee) ($41,459)
Other expenses (mailing costs during community
outreach)
($17,730)
subtotal ($638,194)
Proposed Contracts & Agreements Amount
QLM, Inc. Contract total including 10% contingency
(Recommended Actions #1-3)
($4,249,780)
MIG, Inc. Agreement Amendment (Recommended Action
#4)
($45,000)
4Leaf, Inc. Agreement (Recommended Action #5) ($393,081) subtotal ($4,687,861)
Additional Expenses, Projected Amount
Playground Inspections ($5,000)
Building Permit Fees ($8,500)
Misc. Equipment (picnic tables, bike racks, etc.) ($50,000) subtotal ($63,500)
Summary - Funding Impact Amount
Project Funding $4,891,347
Current Expenses/Encumbrances ($638,194)
Proposed Contracts & Agreements ($4,687,861)
Additional Expenses, Projected ($63,500)
subtotal ($498,208)
Budget Modification Requested $500,000
Sustainability Impact
The project will implement bike racks to encourage alternative transportation. The project will install trio (recycling, organics, landfill) waste containers to divert materials from the landfill. The scope of work includes bioretention and has a stormwater mitigation plan (SWMP) to prevent infrastructure damage due to flooding. These features align with the City’s Climate Action Plan 2.0 goals.

Fiscal Impact
The FY 2018-2019 Adopted Budget allocated $1,230,000 for the AIPG at Jollyman Park Project (420-99-051). In FY 2021-2022, the scope and funding for the adult-assistive restroom was added to the project, for an additional $850,000. In FY 2023-2024, funds 62 CC 06-04-2024
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from Art In-Lieu fees of $338,146 were dedicated to the project, for the specific use of procuring and installing art. The total City funding is presently $2,418,146. If approved, the project funding (420-99-051) will increase by $500,000 for a total of $2,918,146, and the Park Dedication Fund (Fund 280) would decrease by $500,000 bringing the estimated year-end fund balance to $11.2 million.

California Environmental Quality Act (CEQA)
The project is categorically exempt from CEQA under CEQA Guidelines sections 15301(d) (maintenance or rehabilitation of existing facilities), 15301(e) (additions to existing structures), and 15304(b) (new landscaping including the replacement of existing conventional landscaping).

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 – QLM, Inc.

B – Draft Agreement Amendment – MIG, Inc.

C – Draft Agreement – 4Leaf, Inc.

D – Draft Resolution
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 1
Contract
This public works contract (“Contract”) is entered into by and between the City of Cupertino (“City”) and QLM, Inc. (“Contractor”), for work on the All-Inclusive Playground at Jollyman Park 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 June 4, 2024. City authorized award of this Contract to Contractor for the amount set forth in Section 4, below. City has elected to include the following Project alternate(s) in the Contract:

Deductive Alternate #2: Raised Sand Table
For base bid, Contractor to supply and install Raised Sand Table. For Bid Alternative, Raised Sand Table is removed from project.

Deduct: $70,000.00
Deductive Alternate #3: Vine Trellis at Discovery Path
For base bid, Contractor to supply and install Vine Trellis at Discovery Path. For Bid Alternative, Vine Trellis is removed from project.

Deduct: $65,000.00
Deductive Alternate #4: Drums
For base bid, Contractor to supply and install drums. For Bid Alternative, drums are removed from project.

Deduct: $10,000.00
Deductive Alternate #5: Chimes, Concrete Seatwall, and associated Pedestrian Concrete Paving
For base bid, Contractor to supply and install Pedestrian Concrete Paving with Concrete Seatwall in the almost circular node off the Upper Sloped Path, and the Chimes. For Bid Alternative, this area is removed from the project and replaced with planting and irrigation; planting to be a continuation of adjacent treatment – Phormium tenax ‘Yellow Wave’, Lomandra longifolia ‘Breeze’, and Arctostaphylos x “Pacific Mist’.

Deduct: $22,000.00
Deductive Alternate #6: Picnic Area North of Spinner with ADA Picnic Table, Picnic Table, and Buffet Table
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 2
For base bid, Contractor to supply and install picnic area and tables as indicated. For Bid Alternative, Owner will supply tables and Contractor to build picnic area and install Owner-provided tables.

Deduct: $20,000.00
Deductive Alternate #7: Central Picnic Area
For base bid, Contractor to supply and install picnic area and tables as indicated. For Bid Alternative, Owner will supply picnic tables and Contractor to build picnic area and install Owner-provided tables.

Deduct: $25,000.00
Deductive Alternate #8: Bike Parking by Restroom
For base bid, Contractor to supply and install bike parking area and racks as indicated. For Bid Alternative, this area will be removed from project and just cleared.

Deduct: $2,000.00

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; and

2.12 Notice to Proceed.

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 65 CC 06-04-2024
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 3
prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.

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 $3,863,430.00 (“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 270 calendar days from the start date set forth in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $1200.00 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. 66 CC 06-04-2024
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 4

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:

Public Works, CIP Division
10300 Torre Avenue
Cupertino, CA 95014
(408)777-3354
Attn: Susan Michael, CIP Manager
[email protected]

Contractor:

Name: QLM, Inc.

Address: 94 Umbarger Road
City/State/Zip: San Jose, CA 95111
Phone: 408-640-0336
Attn: Darrell Quals
Email: [email protected]
Copy to:

[email protected]

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 67 CC 06-04-2024
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 5
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 binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code § 313.
[Signatures are on the following page.]
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 6
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:

Darrell Qualls, President_________
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
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All-Inclusive Playground at Jollyman Park 2024 Form CONTRACT CIP Project #2019-15 Page 7
__Yen Nguyen, Accountant________
Name, Title
Date: ____________________________
__#560651, 06/30/24________________
Contractor’s California License Number(s) and Expiration Date(s)

END OF CONTRACT
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SIXTH AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG. INC FORALLINCLUSIVE PLAYGROUND AT JOLLYMAN PARK This Sixth Amendment to Agreement 401 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 401 ("Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.

B. The City and the Contractor entered into a First Amended Agreement ("First Amended Agreement") effective October 13, 2022; and
C. The City and the Contractor entered into a Second Amended Agreement ("Second Amended Agreement") effective July 14, 2023; and
D. The City and the Contractor entered into a Third Amended Agreement ("Third Amended Agreement") effective September 7, 2023; and
E. The City and the Contractor entered into a Fourth Amended Agreement ("Third Amended Agreement") effective April 8, 2024; and
F. The City and the Contractor entered into1a Fifth Amended Agreement ("Third Amended Agreement") effective May 22, 2024; and
G. The Agreement, First Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment are collectively referred to as the "Agreement" unless otherwise indicated.

H. 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 $512,411.00 ("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. Exhibits A and A-1 and A-2 and A-3 and A-4 of the Agreement are modified to include Exhibit A-5 Additional Services, attached hereto.
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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 $45,000.00. 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. Exhibits A and A-1 and A-2 and A-3 and A-4 of the Agreement are modified to include Exhibit A-5 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.

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

CITY OF CUPERTINO MIG, INC
By ___________ _ By ___________
~}~ _
Title Title Vice President and Chief Development Officer ------------
Date Date May 23, 2024 ------------

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date ------------
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EXPENDITURE DISTRIBUTION
I Item II PO Number Amount I
lorisinal Asreement 11 2022-326 $389,511.09
!Amendment 1 II I $12:000.og
!Amendment 2 11 I $18,250.09
!Amendment 3 11 I $38,409
!Amendment 4 11 Extend Term to 6/30/2026 I 0
!Amendment 5 11 II $9,259
!Amendment 6 11 II $45,oog
!Total 1, II $51224111
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FIFTH AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG. INC FOR ALLINCLUSIVE PLAYGROUND AT JOLLYMAN PARK This Fifth Amendment to Agreement 401 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 401 ("Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.

B. The City and the Contractor entered into a First Amended Agreement ("First Amended Agreement") effective October 13, 2022; and
C. The City and the Contractor entered into a Second Amended Agreement ("Second Amended Agreement") effective July 14, 2023; and
D. The City and the Contractor entered into a Third Amended Agreement ("Third Amended Agreement") effective September 7, 2023; and
E. The City and the Contractor entered into a Fourth Amended Agreement ("Third Amended Agreement") effective April 8, 2024; and
F. The Agreement, First Amendment, Second Amendment, Third Amendment and Fourth Amendment are collectively referred to as the "Agreement" unless otherwise indicated.

G. 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 $467,411.00 ("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. Exhibits A and A-1 and A-2 and A-3 of the Agreement are modified to include Exhibit A-4 Additional Services, attached hereto. 1 74
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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 $9,250.00. 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. Exhibits A and A-1 and A-2 and A-3 of the Agreement are modified to include Exhibit A-4, 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.

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

CITY OF CUPERTINO
By~fTitle Director of Public Works
Date May 22, 2024

APPROVED AS TO FORM
ChrisfopherD.Yensen
City Attorney
ATTEST:
~~
City Clerk
Date May 22, 2024

MIG, INC
~}6r-- By ___________ _
Title Vice President and Chief Development Officer
Date May 22, 2024
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EXPENDITURE DISTRIBUTION
I Item Ii PO Number II Amount 11
1 Ori~inal A~reement 11 2022-326 11 $389,511.og 1
!Amendment 1 11 II $12,000.0g1
)Amendment 2 11 II $1s,2so.ogl
)Amendment 3 11 II $38,4og1
!Amendment 4 11 Extend Term to 6/30/2026 11 ci1
IAmendment 5 11 II $9,2sgi
)Total 11 II $467,4111
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April 2, 2024
Susan Michael, Capital Projects Programs Manager
City of Cupertino, City Hall
10300 Torre Ave.

Cupertino, CA 95014
Re: Additional Services #4 Jollyman Park Inclusive Playground (MIG proj. no. 30902) Dear Susan,
EXHIBIT A-4
We are requesting use of contingency to assist the City with building permit application form, hardship form, project manual edits, and costs; creation of the SWMP for permit application; and additional bid support.

The following summarizes the MIG team's 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 (Task 9: Permit Assistance)
We are requesting additional fees to requested assistance with building permit:

Task 9 Permit Assistance
• Creation and submittal of SWMP $1,800 (BKF)
• Supplemental permit application and bid support $7,450 (team) Total Add Service #4
: $9,250
$9,250
Your emailed authorization to proceed so we can begin this work will help us meet internal City schedule needs is much appreciated.

Sincerely,
<
Melissa Erikson
Principal, Director of Community Design Services
MIG
PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT ! SCIENCE ! TECHNOLOGY 800 Hearst Avenue • Berkeley, CA 94710 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 77 CC 06-04-2024
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FOURTH AMENDMENT TO AGREEMENT 401

BETWEEN THE CITY OF CUPERTINO AND MIG, INC

FOR ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN
PARK
This Fourth Amendment to Agreement 401 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 401 ("Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.

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

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

1. Paragraph 3.1 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
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IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO MIG, INC
~r- By __________ _ ~}-6;--- By __________ _
Title Assistant Director of Public Works Title Vice President and Chief Development Officer Date Apr 8, 2024 Date Apr 8, 2024

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Apr8,2024 Date __________ _

EXPENDITURE DISTRIBUTION
I Item II PO Number II Amount I
I Original Agreement II 2022-326 II $389,511.0~
I Amendment 1 11 I $12,000.0~
I Amendment2 11 I $18,250.0~
I Amendment 3 11 I $38,40~1
I II I Amendment4 Extend Term to 6/30/2026 I
I I Total 11 I $458,1611
I
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ACORD~ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 3/26/2024
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 Mandy Guo
AssuredPartners Design Professionals Insurance Services, LLC r.~~N,_t r-••· 510-272-1402 I FAX 3697 Mt. Diablo Blvd Suite 230 /A/C Nol:

Lafayette CA 94549 ~t1D'1{~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: 358873288 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 ,.,~ft lun,ft POLICY NUMBER /MMIDD/YYYYl /MM/DD/YYYYl LIMITS C X COMMERCIAL GENERAL LIABILITY y y 6801H899998 8/31/2023 8/31/2024 EACH OCCURRENCE $1 ,000,000 - 0 CLAIMS-MADE 0 OCCUR DAMAGE TU 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 ~ POLICY 0 jrg: □ LOC PRODUCTS • COMP/OP AGG $2,000,000 OTHER: $
C AUTOMOBILE LIABILITY y y BAOS579947 8/31/2023 8/31/2024 COMBINED SINGLE LIMIT $1,000,000 (Ea accident) >--- X ANY AUTO BODILY INJURY (Per person) $ >--- OWNED - SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ >-- HIRED NON-OWNED PROPERTY DAMAGE X AUTOS ONLY X AUTOS ONLY (Per accident\ $ >-- >-- $
B X UMBRELLA LIAB MOCCUR y y CUPOH758762 8/31/2023 8/31/2024 EACH OCCURRENCE $10,000,000 >-- EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000
DED I X I RETENTION$ n $
D WORKERS COMPENSATION y UB2L553909 8/31/2023 8/31/2024 X I ~ffTurE I I OTHER 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 ~~;t~(tffi~ on/OPERATIONS 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 I 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: Jollyman Park All-Inclusive Playground.

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. General Liability is Primary/Non-Contributory per policy form wording. Insurance coverage includes waiver of subrogation per the attached endorsement(s).

CERTIFICATE HOLDER CANCELLATION 30 Day 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.

City of Cupertino
10300 Torre Ave. AUTHORIZED REPRESENTATIVE
Cupertino CA 95014
~ © 1988-2015 ACORD CORPORATION. All rights reserved.

ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD 80 CC 06-04-2024
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POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY 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 1he 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 include as an additional insured the per.son(s) or organization(s) shown in the Schedule, put 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) designated above.

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

CG D3 610305
This insur.ance 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 equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or

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

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

DATE OF ISSUE: 08/06/2023 Page 1 of 1
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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 include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" 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 insured and included in the "products-completed operations hazard".

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Policy# sso1Hssssss

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.

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
nonrenewal in accordance with applicable insurance
laws or regulations. --)~ d.

Required By Written Contract ~ - 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 noncontributory 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 inj.Jry'' or "property damage" for
which coverage is sought occurs; and
(2) The "personal and adwrtising 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:

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 t0 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 e:i<piration 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.

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Policy # sao1Ha9999a
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 111- 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, xray 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 coverage description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered.

A. BROAD FORM NAMED INSURED H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF B. BLANKET ADDITIONAL INSURED
C. EMPLOYEE HIRED AUTO
D. EMPLOYEES AS INSURED
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - 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 during 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 until the 180th day after you acquire or form the organization or the end of the policy period, whichever 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 additional insured is an "insured" for Covered Autos Liability Coverage, but only for damages to which

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 - COVERED 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 business.

2. The following replaces Paragraph b. in B.5 ..

Other Insurance, of SECTION IV - BUSINESS AUTO CONDITIONS:
b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered "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 business.

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 using 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 LIABILITY COVERAGE:
(2) Up to $3,000 for cost of bail bonds (including bonds for related traffic law violations) 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 LIABILITY COVERAGE:
(4) All reasonable expenses incurred by the
"insured" at our request, including actual
loss of earnings up to $500 a day because of time off from work.

F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS The following replaces Subparagraph (5) in Paragraph 8.7., Policy Period, Coverage Territory, of SECTION IV - BUSINESS AUTO CONDITIONS:
(5) Anywhere in the world, except any country or
jurisdiction while any trade sanction, embargo, or similar regulation imposed by the United States of America applies to and prohibits the transaction of business with or within such country or jurisdiction, for Covered 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 "insured" against, and investigate or settle any such claim or "suit" and keep us advised of all proceedings and actions.
(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 "insured" pays with our consent, but only up to the limit described in Paragraph 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 investigation of such claims and your defense of the "insured" against any such
"suit", but only up to and included
within the limit described in Paragraph C., Limits Of Insurance, of

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You agree to maintain all required or
compulsory insurance in any such country 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 insurance requirements. (d) It is understood that we are not an admitted or authorized insurer outside the United States of America, its territories
and possessions, Puerto Rico and Canada. 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., Deductible, 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 Paragraph A.4.b., Loss Of Use Expenses, of SECTION 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 Paragraph A.4.a., Transportation Expenses, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

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

J. PERSONALPROPERTY
The following is added to Paragraph A.4., Coverage Extensions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

Personal Property
We will pay up to $400 for "loss" to wearing apparel 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 8.3., Exclusions, 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 inflate 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 Comprehensive Coverage under this policy; b. The airbags are not covered under any warranty; 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 representative prompt notice of the "accident" or "loss" applies 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 company); (d) An executive officer, director or insurance
manager (if you are a corporation or other organization); or (e) Any "employee" authorized by you to give notice 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 CONDITIONS :

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 extent 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 8.2., Concealment, 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. However this provision does not affect our right to collect additional premium or exercise our right of cancellation or non-renewal.
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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.

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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 preSchedule
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 ___________ _
The Travelers Indemnity Company
DATE OF ISSUE: 3/26/2024 Page 1 of 1
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THIRD AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG. INC FOR ALLINCLUSIVE PLAYGROUND AT JOLLYMAN PARK This Third Amendment to Agreement 401 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 401 ("Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.

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 $458,161.00 ("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. Exhibits A and 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 $30,250.00. 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. Exhibits A and 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
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IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.

CITY OF CUPERTINO
By~f--
Title Director of Public Works
Date Sep 7, 2023

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date Sep 7, 2023

EXPENDITURE DISTRIBUTION
I Item II
1Orisinal Asreement II
!Amendment 1
!Amendment 2
!Amendment 3
!Total II

MIG, INC
By ___________
~}~ _
Title Vice President and Chief Development Officer
Date Sep 6, 2023
PO Number II Amount I
2022-326 11 $389,511.0g
II $12,000.og
II $1 s,2so.og1
II $38,40g
II $458,1611:
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August 22, 2023
Evelyn Moran, Public Works Project Manager
City of Cupertino, City Hall
10300 Torre Ave.

Cupertino, CA 95014
Exhibit A-3
Re: REVISED -Additional Services #3 Jollyman Park Inclusive Playground {MIG proj. no. 30902): Public Art (continued)
Dear Evelyn,
We are requesting use of contingency to address design development of the kaleidoscope; later phases of shop drawings and fabrication will be addressed through the contractor bidding process. This is built on keeping the design and fabrication costs to a combined budget of ~$200,000 of approved art funding.

Add Service #2 provided preliminary funding related to artist efforts and concept development. There is $435 in Add Service #2 associated with SAS's preliminary effort that is no longer needed and which can be applied to UAP's involvement (see note below). We will use the remaining Add Service #2 fee to cover our efforts related to art coordination that have already occurred as well as ongoing efforts, plus the Commission meeting we already attended and the one that is to be rescheduled due to a lack of quorum.

The following summarizes MIG's 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 (Task 8: Art)
We are requesting additional fees to cover artist fees for work related to art elements and for work efforts discussed, as noted below:
o Concept development of kaleidoscope, 3D working model, samples of the 3Form leaves, preliminary engineering report, project schedule, and budget proposal for final shop drawings and fabrication ($38,400)
Task 8 Art
Less Add Service #2 remaining Art Consultant fee
Total Add Service #3
UAP Total: $ 38,400
-$435
$37,965
Your emailed authorization to proceed so we can move forward with concept development and minimize schedule impact is much appreciated.

Sincerely,
<
Melissa Erikson
Principal, Director of Community Design Services
MIG

PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT I SCIENCE I TECHNOLOGY 800 Hearst Avenue • Berkeley, CA 947 10 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 93 CC 06-04-2024
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UAP

NEW YORK
UAP
Jollyman Park "Kaleidoscope" Sculpture
Design Development
MIG

FEE PROPOSAL
8/21/2023
UAP Ref US2031

BRISBANE

ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
+ 1 (845) 56 7 9464
[email protected]
USl 170 - Rev05

SHANGHAI
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UAP
August 27, 2023
Melissa Erikson
Principal, Director of Community Design Services
MIG
506 SW Sixth Avenue, Suite 400
Portland, OR 97204
Dear Melissa,
SUBJECT: Design Development Proposal - Jollyman Park "Kaleidoscope" Sculpture

ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
+ 1 (845) 56 7 9464
[email protected]
US1170 - Rev05
UAP is pleased to submit the following proposal to work with MIG on the design development of a bespoke fabricated metal kinetic sculpture for the new Jollyman Park in Cupertino, CA. We understand the sculpture to be roughly 10 - 15ft high by 6 - 8ft wide with a mechanism to allow children to spin the kaleidoscope "leaves" at the top of the sculpture from its base.

There are details that still need to be resolved, such as height, connection details, mechanics and finish, and we know MIG and client have the highest expectations for quality. We plan to work with MIG to refine the existing concept, provide renderings, architectural drawings and preliminary engineering for fabrication.

We anticipate this design development to be an 8 week phase, allowing for up to two rounds of revision and design changes. We will deliver at the end of this phase a 3D working model, samples of the acrylic for the "leaves", drawings, preliminary engineering report, project schedule, and a budget proposal for the next phase.

The next phase proposal will be for any further needed mock-ups, along with a full proposal for shop drawings and fabrication.

We understand there are budget limitations, and if it's not possible to achieve all of MIG's goals, we will provide value engineering recommendations to keep design and fabrication costs to a combined budget around $200,000 total (Fabrication is presently projected to be $7 65 - $775,000).

We are excited to collaborate with MIG on this exciting project and we are looking forward to building a long term and successful relationship.

SCOPE:

Staff a Technical Designer and Project Manager for an 8 week process. o Technical Designer's hours are capped at 86 hours total o Project Manager's hours are capped at 36 hours total
o Hours beyond this will be charged at $7 40/ hour for Technical Designer and $7 95/hour for Project Manager.

Coordinate with mechanical engineer (subcontracted by UAP) to propose and design mechanical operation of kinetic and non-motorized components.

NEW YORK BRISBANE SHANGHAI
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UAP ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
+ 1 (845) 56 7 9464
[email protected]
US1170 - Rev05
o Mechanical engineer to provide one round of revision and design changes.

UAP NY project management with regular weekly/ biweekly updates for MIG and architecture team, including project status reports and coordination for client signoffs.

Define 3D model providing up to two rounds of revisions and design changes. o Illustrate mechanical connections and mounting solution.

Provide off-the-shelf acrylic color samples from material provider for client selection and approval. • Develop fabrication methodology.

Present preliminary drawings to client for approval.

Provide an estimated budget and timeline for further mock-ups and full fabrication within budget cap of $200,000 for design and fabrication.

EXCLUSIONS:

Assumes MIG can provide existing model at the onset of the project.

Assumes MIG can provide necessary requirements for site and operation.

Excludes renderings or site visualizations.

Excludes redesigns or 3D modelling of new concepts.

Excludes sampling beyond listed above samples.

Excludes site survey, shop drawings, fabrication, shipping, and installation.

Excludes contracting additional consultants, e.g. structural engineer, lighting consultant, etc.

Excludes coordination with other consultants/contractors, unless listed.

Excludes applicable sales taxes.

Design Development Fee: $38,400
Payment Schedule
Item
30% deposit on signing
35% progress payment after preliminary design review
35% final payment upon completion
TOTAL

NEW YORK BRISBANE
Amount Date Due
$11,520 Due on signing
$13,440 Due after preliminary
review
$13,440 Due upon completion
$38,400

SHANGHAI
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UAP ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
+ 1 (845) 56 7 9464
[email protected]
US1 170 - Rev05
Should you have any questions, please do not hesitate to contact the undersigned.

Sincerely,
ga,eo-~~

UAP PRODUCTION LLC
Jason Marquis
Special Projects
[email protected] I (97 7)757-9913

NEW YORK BRISBANE
All Billing Enquiries are to be sent to:

E I [email protected]
P I + 1 (845) 56 7 9464 I Ext 223

SHANGHAI
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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

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

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

Lafayette CA 94549 ~iiMo~~ss: [email protected] INSURER($) AFFORDING COVERAGE NAIC#
License#: 6003745 INSURER A: BERKLEY INSURANCE COMPANY 32603 INSURED MIGINC0-01 INSURER B : Travelers Propertv Casualtv Companv of America 25674 MIG, Inc. INSURER c : The Travelers lndemnitv Comoanv of Connecticut 25682 Moore lacofano Goltsman , Inc. 800 Hearst Ave INSURER D : The Travelers lndemnitv Comoanv 25658 Berkeley CA 94710 INSURERE :

INSURERF:

COVERAGES CERTIFICATE NUMBER: 214942187 REVISION NUMBER:

INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE •••~n un,n POLICY NUMBER LIMITS IMM/DD/YYYYl IMM/DD/YYYYl C X COMMERCIAL GENERAL LIABILITY y y 6801 H899998 8/31 /2023 8/31 /2024 EACH OCCURRENCE $1,000,000 - 0 CLAIMS-MADE 0 OCCUR ~~~t~iJYE~~~J~~encel - $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 =7 [8:J PRO- POLICY JECT LOC PRODUCTS - COMP/OP AGG $2,000,000 OTHER: $
C AUTOMOBILE LIABILITY y y BAOS579947 8/31 /2023 8/31 /2024 COMBINED SINGLE LIMIT (Ea accident\ $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 NOCCUR y y CUPOH758762 8/31 /2023 8/31/2024 EACH OCCURRENCE $10,000,000 >-- EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000 DED I X I RETENTION$ n $
D WORKERS COMPENSATION y UB2L553909 8/31 /2023 8/31 /2024 X I ~ffTuTE I IOTHER AND EMPLOYERS" LIABILITY Y/N 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 If yes, describe under
DESCRIPTION OF OPERATIONS 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 underlyinf Policies: General Liability/Auto Liability/Employers Liability.

Re: Jollyman Park All-Inclusive Playground The City o 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 Ave.

Cupertino 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
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POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY 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 a-gree 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 include as an additional insured the per:son(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) designated above.

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

CG 03 610305
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:

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

DATE OF ISSUE: 08/06/2023 Page 1 of 1
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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):

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.

CG TS 04 08 23 © ISO Properties, Inc., 2004
DATE OF ISSUE: 08/06/2023 Page 1 of 1
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Policy# sao1Ha9999a

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.

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 regulations. --)-:1- d.

Required By Written Contract ~ 7. 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 noncontributory 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:

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.

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

SECTION V - DEFINITIONS

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Policy# sao1Ha9999a
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:

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

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

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:

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

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:

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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:

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 during 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 until the 180th day after you acquire or form the organization or the end of the policy period, whichever 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:

USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION

C. EMPLOYEE HIRED AUTO

1. The following is added to Paragraph A.1.,
Who Is An Insured, of SECTION II - COVERED 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 business.

2. The following replaces Paragraph b. in 8.5.,
Other Insurance, of SECTION IV - BUSINESS AUTO CONDITIONS:
b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered "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 business.

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 using a covered "auto" you don't own, hire or borrow in your business or your personal affairs.

E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS

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 required or compulsory insurance in any country outside the United States, its territories and possessions, Puerto Rico and Canada.
age Z'"U © 20-1ol'fle Tra%Iers·-in-demnity'"Comr,any. All rights re-served. CA--1=3 5-3 0-2 15 Includes copyrighted material of Insurance Services Office, Inc. with its permission. 104
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You agree to maintain all required or
compulsory insurance in any such country 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 insurance requirements. (d) It is understood that we are not an admitted or authorized insurer outside the United States of America, its territories
and possessions, Puerto Rico and Canada. 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., Deductible, 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 Paragraph A.4.b., Loss Of Use Expenses, of SECTION 111 - 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 Paragraph A.4.a., Transportation Expenses, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

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

J. PERSONALPROPERTY
The following is added to Paragraph A.4., Coverage Extensions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

Personal Property
We will pay up to $400 for "loss" to wearing apparel 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 8.3., Exclusions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

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:

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 CONDITIONS:

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 extent 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 8.2 .. Concealment, Misrepresentation, Or Fraud, of SECTION IV - BUSINESS AUTO CONDITIONS:

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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:

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

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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

BETWEEN THE CITY OF CUPERTINO AND MIG, INC

FOR ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN
PARK
This Second Amendment to Agreement 401 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 401 ("Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.

B. The City and the Contractor entered into a First Amended Agreement ("First Amended Agreement") effective October 13, 2022; and
C. 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 $419,761.00 ("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. Exhibits A and A-1 of the Agreement is modified to include Exhibit A-2 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 $30,250.00. 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. Exhibits A and A-1 of the Agreement is modified to include Exhibit A-2, 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
By,.tJ~uJ,,_
Title City Manager
Date Jul 14, 2023

APPROVED AS TO FORM
City Attorney
ATTEST:

City Clerk
Date Jul 14, 2023

EXPENDITURE DISTRIBUTION
Item II
Original Agreement 11
!Amendment 1 11
!Amendment 2 11
l otal 11

MIG, INC
Title Vice President and Chief Development Officer
Date Jul 14, 2023
PO Number II Amount II
2022-326 11 $389,511.ogl
II $12,000.og
II $1 s,2so.og'
II $419,761.0g
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June 16, 2023
Evelyn Moran, Public Works Project Manager
City of Cupertino
City Hall
10300 Torre Ave.

Cupertino, CA 95014
Exhibit A-2
Re: Additional Services Jollyman Park Inclusive Playground {MIG proj. no. 30902): Public Art Dear Evelyn,
As discussed, the City is requesting a presentation to the Art Commission in support of additional funding for Jollyman AIPG. Art & Culture Commission supported moving the kaleidoscope and musical bench or walk forward. We are working with Scientific Art Studios to develop these ideas further in preparation for going back to the Commission in July. For now, we are requesting use of contingency to address the concept work to move these forward and get blessed; Design Development/Construction Documents and fabrication will be a separate add service. This is built on $380,000 of approved art funding but knowing that the desire is to only use a portion of that.

The following summarizes Ml G's 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 #3 (New Task 8: Art)
We are requesting additional fees under a new task number for additional work related to art elements and for work efforts discussed, as noted below:

Task 8 Art
o Creating a presentation on the art elements in support of the funding request. Melissa's virtual attendance and presentation at the Art Commission meeting in San Jose on Monday, May 22, 2023 (completed at City authorization) and in July. ($3,550)
o Concept development of kaleidoscope and musical bench or walk ($14,700)
Total: $ 18,250
Prompt authorization to proceed so we can move forward with concept development and be able to meet the July Commission date is much appreciated.

Sincerely,
< I
Melissa Erikson
Principal, Director of Community Design Services
MIG
PLANNING j DESIGN j COMMUNICATIONS j MANAGEMENT j SCIENCE ! TECHNOLOGY 800 Hearst Avenue • Berke ley, CA 94710 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 111
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FIRST AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG, INC., FOR

ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
This First Amendment to Agreement 401 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:

On December 09, 2021 Agreement 401 ("Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.

A. 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 $401,511.00 ("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 authorized Additional Services up to an amount not to exceed $12,000.00. 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.

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
Bypa,,u1a, w,.,
Title City Manager
Date Oct 13, 2022

APPROVED AS TO FORM
Cltt/Jtq11fter .P. Je111e11
City Attorney
ATTEST:

City Clerk
Date Oct 13, 2022

EXPENDITURE DISTRIBUTION
MIG, INC.

CUt--~~ By ___________ _
Title Vice President/Chief Development Officer
Date Oct 13, 2022
i:;;;;;;;===I ;;;; te;;;; m===;;;;;;,!l======P;;;;O;;;;N;;;;u;;;;m;;;;b;;;;e;;;; r =====;;;;,1,;;;====;;;; 1 A;;;;m;;;;o;;;; u;;;; nt=====;; priginal Agreement II 2022-326 II $389,511.0tjl
===========~ !Amendment #1 l:Change in Scope, Change in Contract Amount II $12,000.091 ;::::===========~ 1J~T_o_ta_lA~g~r_ee_m_e_m ___ ~II 11~ ________ $_40_1~,5_1_1.~0tj1 2 113
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Exhibit A-1
August 31, 2022
Evelyn Moran, Public Works Project Manager
City of Cupertino
City Hall
10300 Torre Ave.

Cupertino, CA 95014
Re: Additional Services Jollyman Park Inclusive Playground (MIG proj. no. 30902) Dear Evelyn,
As discussed, a restroom is being added to the project expanding work beyond that in the original scope of work. The following summarizes MIG's request for additional work and fees that are above and beyond the original contract, signed Dec. 9, 2021; BKF's effort will be addressed through a separate agreement. All other terms in the original contract remain in effect.

Add Services #2 (New Task 7: Restroom) .................................................... $12,000 We are requesting additional fees under a new task number for additional work related to adding a restroom to the project and for anticipated work efforts discussed, as noted below:
o Coordinating with BKF who is leading the restroom portion of the project
o Providing aesthetic coordination to ensure the restroom finishes work with the play area improvements
o Planting and irrigation design for the expanded work area for all drawing submittals (50%, 90%, 100%, and bid set)
It is understood that the restroom will be integrated into the play area submittals as a single project for review and bidding; the restroom will not have separate review meetings but reviews will be incorporated into the planned review meetings for the play area.

Task 7 Restroom Total: $12,000

PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT I SCIENCE I TECHNOLOGY 800 Hearst Ave nue • Berkeley, CA 947 10 • USA • 510-845-7549 • www.migcom.com Offices in: California • Colorado • Oregon • Texas • Washington 114
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Evelyn Moran
August 31 , 2022

Page 2 of 2 ends

Please feel free to contact us with any questions or additional information needed.

Sincerely,
Principal, Director of Community Design Services
MIG
Please sign below to indicate your agreement to the terms outlined in this letter as a revision to the original contract and budget.

Evelyn Moran, Project Manager
City of Cupertino
Date
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_____,
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

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

PRODUCER ~~:r,cT The Certificate Team
AssuredPartners Design Professionals Insurance Services, LLC PHONE I rffc Nol: 3697 Mt. Diablo Blvd Suite 230 Air I.I .... C-, \.

Lafayette CA 94549 ~iDA~~ss: CertsDesianPro<@.AssuredPartners.com INSURERISl AFFORDING COVERAGE NAIC#
License#: 6003745 INSURER A: Berklev Insurance Comoanv 32603 INSURED MIGINC0-01 INSURER B : Travelers Prooertv Casualtv Comoanv of America 25674 MIG, Inc. INSURER c : The Travelers lndemnitv Comoanv of Connecticut 25682 Moore lacofano Goltsman, Inc. 800 Hearst Ave INSURERD :

Berkeley CA 94710 INSURERE:

INSURER F:

COVERAGES CERTIFICATE NUMBER: 1669425263 REVISION NUMBER:

INSR ADDL SUBR
LTR TYPE OF INSURANCE ,.,~n WVD POLICY NUMBER ,t3M'6W~l ,t3rJ'6~i LIMITS C X COMMERCIAL GENERAL LIABILITY y y 6801 H899998 8/31 /2022 8/31 /2023 EACH OCCURRENCE $1 ,000,000 - ~ CLAIMS-MADE 0 OCCUR DAMA<,;E Ti YE 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'LAGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 Fl 0 PRO- POLICY JECT D Loc PRODUCTS - COMP/OP AGG $2,000,000 OTHER: $
C AUTOMOBILE LIABILITY y y
- BAOS579947 8/31 /2022 8/31 /2023 ~~~~~~~~lNGLE LIMIT $1 ,000,000 X ANY AUTO BODILY INJURY (Per person) $
- OWNED - SCHEDULED
AUTOS ONLY AUTOS BODILY INJURY (Per accident) $
X HIRED X NON-OWNED rp~?~zc~le~gAMAGE $ AUTOS ONLY AUTOS ONLY $
B X UMBRELLA LIAB MOCCUR 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 tffTuTE I IOTHER 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 g~ii~rtfft~ ontOPERATIONS 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: Jollyman Park All-Inclusive Playground 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 o f Cupertino
10300 Torre Ave.

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 ACORD name and logo are registered marks of ACORD
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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:

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 during 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 until the 180th day after you acquire or form the organization or the end of the policy period, whichever 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:

USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION

C. EMPLOYEE HIRED AUTO

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

2. The following replaces Paragraph b. in 8.5.,
Other Insurance, of SECTION IV - BUSINESS AUTO CONDITIONS:
b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered "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 business.

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 using a covered "auto" you don't own, hire or borrow in your business or your personal affairs.

E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS

F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS The following replaces Subparagraph (5) in Paragraph B.7., Policy Period, Coverage Territory, of SECTION IV - BUSINESS AUTO CONDITIONS:
(5) Anywhere in the world, except any country or
jurisdiction while any trade sanction, embargo, or similar regulation imposed by the United States of America applies to and prohibits the transaction of business with or within such country or jurisdiction, for Covered 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 "insured" against, and investigate or settle any such claim or "suit" and keep us advised of all proceedings and actions.
(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 "insured" pays with our consent, but only up to the limit described in Paragraph C., Limits Of Insurance, of

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You agree to maintain all required or
compulsory insurance in any such country 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 insurance requirements. (d) It is understood that we are not an admitted or authorized insurer outside the United States of America, its territories
and possessions, Puerto Rico and Canada. 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., Deductible, 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 Paragraph A.4.b., Loss Of Use Expenses, of SECTION 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 Paragraph A.4.a., Transportation Expenses, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

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

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

Personal Property
We will pay up to $400 for "loss" to wearing apparel 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 8.3., Exclusions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:

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:

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 CONDITIONS :

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 extent 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. 119
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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., Concealment, Misrepresentation, Or Fraud, of SECTION IV - BUSINESS AUTO CONDITIONS:

The unintentional omission of, or unintentional
error in, any information given by you shall not
prejudice your rights under this insurance. However this provision does not affect our right to collect additional premium or exercise our right of cancellation or non-renewal.
age 4-or4 --- © 201oTfie Travelers ni:lemni y Campany. Alfr igflts reservecr.--- lncludes copyrighted material of Insurance Services Office, Inc. with its permission.

CA 'T3-53 OM S
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER: 6801H899998
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 "productscompleted 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 include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" 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 insured and included in the "products-completed operations hazard".

CG 20 37 07 04
CG TS 02 XXXX
© ISO Properties, Inc., 2004 Page 1 of 1
DATE OF ISSUE: 08/31/2022 121
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER 6801H899998
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 include 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) designated above.

B. With respect to the insurance afforded to these
additional insureds, the following add itional exclusions 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:

CG-0To17J:ro Copyrignt 2005 Tfie St. Paul Travelers Companies, Inc. All rights reserved. Page 1 of 1 CG TS 01 XX xx Includes copyrighted material of Insurance Services Office, Inc. with its permission.

DATE OF ISSUE: os13112022
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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 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.
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 noncontributory 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 inj.Jry' 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 Co\oerage 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 ha\oe issued this policy in reliance upon
your representations.

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.

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

SECTION V - DEFINITIONS

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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:

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.

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,

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

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:

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:

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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:

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

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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

Page 1 of 1 ends

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ClTYOF
m DESIGN PROFESSIONAL SERVICES AGREEMENT <SINGLE}

WITH MIG, INC

CUPERTINO

1. PARTIES
This Agreement is made by and between the City of Cupertino, a municipal corporation ("City"), and MIG, Inc ("Consultant"), a Corporation for All-Inclusive Playground at Jollyman Park ("Project"), and is effective on the last date signed below ("Effective Date").

2. SERVICES

2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant's written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as otherwise expressly rejected by City. Consultant further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19.

2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project, which are not already encompassed, expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal ("Additional Services"). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Services rendered. Additional Services are subject to all the provisions applicable to Basic Services, except and only to the extent otherwise specified by City in writing.

All references to "Services" in the Agreement include Basic Services and Additional Services, unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant's Proposal.

Consultant is solely responsible for its errors and omissions and those of its subconsultants, and must promptly correct them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its errors or omissions.

3. TIME OF PERFORMANCE

3.1 Term. This Agreement begins on the Effective Date and ends on December 31, 2024, 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.

3.2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B, Schedule of Performance, attached and incorporated here. Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Parties adequate opportunity to address or mitigate delays. If the Services are divided by tasks, Consultant must begin All-Inclusive Playground at Jollyman Park
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work on each separate task upon receiving City's Notice to Proceed ("NTP"), and must complete each task within the time specified in ExhibitB.

3.3 Time is of the essence for the performance of all the Services. Consultant must have sufficient time, resources, and qualified staff to deliver the Services on time.

4. COMPENSATION

4.1 Maximum Compensation. 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 $389,511.00 ("Contract Price"), as specified in Exhibit C, 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.

4.2 Basic Services. City will pay Consultant $389,511.00 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump Sum Price is inclusive of all time and expenses, including, but not limited to, sub-Consultants' costs, materials, supplies, equipment, travel, taxes, overhead, and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Services that were completed to City's reasonable satisfaction.

4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed $0.00 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.

4.4 Invoices and Payments. Monthly invoices must describe the Services completed and the Amount due for the preceding month. City will pay Consultant within thirty (30) days following receipt of a properly submitted and approved invoice for Services. The invoice must separately itemize and provide subtotals for Basic Services and Additional Services, and must state the percentage of completion for each task, as specified in Exhibit C. City will notify Consultant in writing of any disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is unresolved, City will pay Consultant only for the undisputed portion of the Services. Disputed amounts shall be subject to the Dispute Resolution provision of this Agreement. a. Time and Expenses. For Additional Services provided on an hourly basis, each invoice must also include, for each day of Services provided: (i) name and title of each person providing Services; (ii) a succinct summary of the Services performed by each person; (iii) the time spent per person, in thirty (30) minute increments; (iv) the hourly billing rate or Sub- Consultant charge and payment due; and (v) an itemized list with amounts and explanation for all permitted reimbursable expenses.

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5. b. Rates and Receipts. All hourly rates and reimbursable expenses must conform to the City- approved rates set forth in Exhibit C, which will be in effect for the entire Contract Time. Each invoice must attach legible, dated receipts for Reimbursable Expenses.

INDEPENDENT CONTRACTOR

5.1 Status. Consultant is an independent Consultant and not an employee, partner, or joint venture of the City. Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction, compensation and discharge of all persons assisting Consultant in performing the Services. Consultant is not entitled to health benefits, worker's compensation, retirement, or any City benefit.

5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its subConsultants that they have the qualifications and skills to perform the Services in a competent and professional manner, as exercised by design professionals performing similar services in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City excepting this Agreement. All Services must be performed as specified to City's reasonable satisfaction.

5.3 Permits and Licenses. Consultant warrants on behalf of itself and any sub-Consultants that they are properly licensed, registered, and/or certified to perform the Services, as required by law, and that they have procured a valid City 'Business License, if required by the Cupertino Municipal Code.

5.4 Sub-Consultants. Unless prior written approval from City is obtained, only Consultant's employees and sub-Consultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all sub-Consultants to furnish proof of insurance for workers' compensation, commercial liability, auto, and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all sub-Consultants relative to the portion of their work.

5.5 Tools, Materials, and Equipment. Consultant will supply and shall be responsible for all tools, materials, and equipment required to perform the Services under this Agreement.

5.6 Payment of Benefits and Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Consultant and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Consultant shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Consultant's business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Consultant. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Consultant, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Consultant agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City All-Inclusive Playground at Jollyman Park
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as a result of such determination, so that the City's total expenses under this Agreement are not greater than they would have been had the determination not been made.

5.7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its sub-Consultants, and must take prompt measures to avoid, mitigate, and correct them at its sole expense.

6. PROPRIETARY/CONFIDENTIAL INFORMATION
During the Contract Time, Consultant may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to City. Consultant shall hold in confidence all City information and use it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data.

7. OWNERSHIP OF MATERIALS

7.1 Property Rights. Subject to City meeting its payment obligations for the Services, any interest (including copyright interests) of Consultant in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium, prepared by Consultant under this Agreement ("Work Product"), will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to a third-party without prior written approval by City

7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its sub-Consultants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not "works for hire," Consultant hereby assigns to City all copyrights to the Work Product when and as created, and shall require sub-Consultants to do the same. Consultant may retain copyrights to its standard details, but hereby grants City a perpetual, non-exclusive license to use such details.

7.3 Patents and Licenses. Consultant must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product of this Agreement.

7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Consultant and its sub-Consultants to execute or implement any of the following, but Consultant shall not be responsible or liable for City's re-use ofWorkProduct:
(a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services; and/or (d) For other City projects.

7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides, except for one single-sided original. Large-scale architectural plans and similar All- nc1usive Playground a Jollyman Park
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items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats.

8. RECORDS

8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Services and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant's performance, benchmarks, and deliverables. The records and supporting documents must be kept separate from other files and maintained for a period of four ( 4) years from the date of City's final payment.

8.2 Consultant will provide City full access to Consultant's books and records for review and audit, to make transcripts or copies, and to conduct a preliminary examination of all the work, data, documents, proceedings, and activities related to this Agreement. If a supplemental examination or audit of Consultant's records discloses non-compliance with appropriate internal financial controls, a contract breach, or a failure to act in good faith, City will be entitled to recover from Consultant the costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for review and audit. This Section 8 survives the expiration/termination of this Agreement.

8.3 Consultant acknowledges that certain documents generated or received by Consultant in connection with the performance of this Agreement, including but not limited to correspondence between Consultant and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Consultant shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided.

9. ASSIGNMENT
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Consultant as a legal entity will be considered an Assignment subject to City approval, which shall not be unreasonably withheld. For purposes of this provision, control means fifty percent (50%) or more of the voting power of the business entity. This Agreement binds Consultant, its heirs, successors and assignees.

10. PUBLICITY / SIGNS
Any publicity generated by Consultant for the project under this Agreement, during the term of this Agreement and for one (1) year thereafter, will reference the City's contributions in making the project possible. The words "City of Cupertino" will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews, and newspaper articles. No signs may be posted, exhibited, or displayed on or about City property, except signage required by law or this Agreement, without prior written approval from the City.

11. INDEMNIFICATION

11.1 To the fullest extent allowed by law and except for losses caused by the sole or active All-Inclusive Playground at Jollyman Park
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negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City as follows:
a. Indemnity for Design Professional Liability: With respect to the performance of design professional services by a design professional as defined in California Civil Code Section 2782.8, to the fullest extent permitted by law, Consultant shall indemnify and hold harmless City, its officers, officials, agents, employees, and volunteers ( collectively and/or individually "City") from and against any and all liabilities, claims, damages, losses, costs, or expenses (including, without limitation, costs, attorneys' fees, and expert fees of litigation and alternative dispute resolution) of every nature to the extent arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Consultant or any of its officers, employees, servants, agents, or subcontractors (collectively and/or individually "Consultant"), in the performance of this Agreement or failure to comply with any obligations of the Agreement. If it is finally determined (through a non-appealable judgment or an agreement between City and Consultant) that liability is caused by the comparative negligence or willful misconduct of City, then Consultant's indemnification and hold harmless obligation shall not exceed Consultant's finally determined percentage of liability based upon the comparative fault of Consultant.

Irrespective of any language to the contrary in this Agreement, the Consultant has no duty to provide or to immediately pay for an up-front defense of City against unproven claims or allegations, but shall reimburse those litigation costs and expenses (including, without limitation, attorneys' fees, and expert fees) incurred by the City to the extent caused by the negligence, recklessness, or willful misconduct of Consultant. In no event shall the cost to defend charged to Consultant exceed Consultant's proportional percentage of fault, except as described in Section 2782.8(a) and (e) of the California Civil Code.
b. Claims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement, or violation of a United States patent right or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights, which arises out of, pertains to, or relates to Consultant's negligence, recklessness, or willful misconduct. Such costs and expenses will include reasonable attorney fees for legal counsel of City's choice, expert fees, and all other costs and fees of litigation.
c. Claims for Other Liability. Except as provided in subsections 11.l(a) and (b), to the fullest extent permitted by law, Consultant shall hold harmless, defend (with counsel agreed to by City), and indemnify City and its officers, officials, agents, employees, and volunteers (collectively and/or individually "City") from and against any and all liability, claim, loss, damage, expense, costs (including, without limitation, costs, attorneys' fees, and expert fees of litigation) of every nature arising out of, related to, or in connection with the performance of work hereunder by Consultant or any of its officers, employees, servants, agents, or subcontractors, or the failure of the same to comply with any of the obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or sole willful misconduct of the City.

Consultant's duty to defend applies immediately, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend as stated herein.

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11.2 Consultant will assist City, at no additional cost, in the defense of any claim, dispute, or lawsuit arising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract Price, to Workers' Compensation claims, or to the Insurance or Bond limits and provisions.

Nothing in this Agreement shall be construed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee.

11.3 Consultant agrees to pay the reasonable costs City may incur in enforcing this provision related to Consultant's indemnification duties, including reasonable attorney fees, fees for legal counsel acceptable to City, expert fees, and all other costs and expenses related to a claim or counterclaim, a purchase order, another transaction, litigation, or dispute resolution. Without waiving any rights, City may deduct money from Consultant's payments to cover moneys due to City.

11.4 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.

11.5 This Section 11 shall survive expiration or termination of this Agreement.

12. INSURANCE
On or before the Contract Time commences, Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit D. City will not execute the Agreement until Consultant has submitted and City has reasonably approved receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Alternatively, City may terminate this Agreement or in its sole discretion purchase insurance at Consultant's expense and deduct costs from payments to Consultant.

13. COMPLIANCE WITH LAWS

13.1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant's ability to perform. Consultant is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act, or other federal or state law, rule orregulation.

13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services include a "public works" component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City's Labor Compliance Program and with state labor laws pertaining to working days, overtime, payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more, Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5.

13.3 Discrimination Laws. Consultant shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Consultant shall comply with all anti-discrimination laws, including All-Inclusive Playground at Jollyman Park
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Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777, and 3077.5.

Consistent with City policy prohibiting it, Consultant understands that harassment and discrimination by Consultant or any of its sub-Consultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited. Consultant agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision.

13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement in violation of California Government Code Section 1090 et seq. Consultant may be required to file a conflict of interest form if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 ofTitle 2 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City, with the exception of this Agreement. Consultant is familiar with and agrees to abide by the City's rules governing gifts to public officials and employees.

13.5 Remedies. A violation of this Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 11. Consultant agrees to indemnify, defend, and hold City harmless from and against any loss, liability, and expenses arising from noncompliance with this Section.

14. PROJECT COORDINATION

14.1 City Project Manager. The City's Project Manager for all purposes under this Agreement will be Evelyn Moran, who shall have the authority to manage this Agreement and oversee the progress and performance of the Services. City in its sole discretion may substitute another Project Manager at any time and will advise Consultant of the new representative.

14.2 Consultant Project Manager. Subject to City's reasonable approval, Consultant's Project Manager for all purposes under this Agreement will be Jan Eiesland who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders, and the Schedule of Performance, and providing regular updates to the City's Project Manager on the Project status, progress, and any delays. City written approval is required prior to Consultant substituting a new Project Manager, which shall result in no additional costs to City or Project delays.

15. ABANDONMENT OF PROJECT
City may abandon or postpone the Project with thirty (30) calendar days written notice to Consultant.

Consultant will be compensated for satisfactory Services performed through the date of abandonment and will be given reasonable time to assemble the work and close out the Services. No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent (10%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty (30) days of Consultant's final invoice reasonably approved by the City.

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16. TERMINATION
City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty (30) calendar days prior to the termination date. Consultant will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within thirty (30) days of Consultant's final invoice.

17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California.

Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement ( or the successors of those authorities). If a dispute arises, Consultant must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact.

18. ATTORNEY FEES
If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. This Section 18 survives the expiration/termination of this Agreement.

19. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries of this Agreement.

20. WAIVER
Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of any breach shall not be deemed to constitute waiver of another term, provision, covenant, or condition or a subsequent breach, whether of the same or a different character

21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of the Parties, of every kind or nature, and supersedes any and all other agreements and understandings, either oral or written, between them. Any modification of this Agreement will be effective only if in writing and signed by each Party's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of this main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling.

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22. INSERTED PROVISIONS
Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either party may request an amendment to cure any mistaken insertion or omission of a required provision.

23. HEADINGS
The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit, or amplify the terms or provisions of this Agreement.

24. SEVERABILITY IP ARTIAL INVALIDITY
If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect.

25. SURVIVAL
All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein, survive this Agreement and shall remain in full force and effect.

26. NOTICES
All notices, requests, and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery, the delivery date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission:

To City of Cupertino:

Office of the City Manager
10300 Torre Ave.

Cupertino, CA 95014
Attention: Evelyn Moran
Email: [email protected]

27. EXECUTION
To Consultant:

MIG, Inc
2055 Junction Ave, Suite 205
San Jose, CA 95131
Attention: Jan Eiesland
Email: [email protected]
The person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Consultant. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument.

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IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement.

CITY OF CUPERTINO
A Municipal Corporation
By Ouuu-u 7/4?~n- ~/k_)
Name Dianne Thompson (she/her)
Title Acting City Manager
Date Dec 9, 2021
APPROVED AS TO FORM:

Chrisfopher D. Jensen
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:

KIRSTEN SQUARCIA
City Clerk
Date Dec 9, 2021
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MIG,INC
Cu¢-}~ By ___________ _
Name Chris Beynon
Title Vice President/Chief Development Officer
Date Nov 24, 2021
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EXHIBIT A
Jollyman Park All-Inclusive Playground
Scope of Work

11.12.2021
MIG has prepared the following Scope of Work to illustrate how we will facilitate successful completion of the Jollyman Park All-Inclusive Playground 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 requirements stated in the Jollyman Park Aug. 2, 2021 RFQ and Addenda.

Project Understanding
Located in Cupertino, CA, the project entails replacing the southern existing play area at Jollyman Park with an allinclusive playground. Per the City's RFQ, the project aims to incorporate the best in supportive play theories and practices to appeal to people of all ages and abilities. The design will support recreation and social interaction for people with autism, sensory challenges, cognitive, developmental, and physical disabilities - as well as those without special needs. The project will have specific all-inclusive play amenities that will be further developed from the initial concept design with community engagement. Potential site improvement areas include walkways, storm water runoff reduction, utility identification and adjustments, landscape, irrigation, and similar site improvements within the project area. Recommended site improvements shall be based on the established Cupertino Engineering Standards. The design will be in accordance with AIPG funding guidelines; local, state and federal ADA and playground safety guidelines and requirements.

TASK 1: PROJECT INITIATION
Task 1.1 Project Kick-off Meeting & Site Tour
To initiate the project, the MIG Team will participate in a meeting with the City of Cupertino Jollyman project team ('The City') to discuss the project goals, opportunities, and challenges, as well as to establish project communication protocols, review project tasks and schedule, and other coordination topics to be determined in cooperation with the City. We see this meeting as an important step in developing a collaborative team that is committed to a shared process and vision for Jollyman Park.

The MIG Team will also conduct a site tour to observe and document the existing site conditions, uses and character of Jollyman Park. Topic areas to be observed include circulation, accessibility, signage and wayfinding, lighting, natural features, social relationships, and experiential opportunities.

Depending on weather and current safety protocols this may be staged as two meetings within the same week: a virtual kick-off/goals meeting followed by an in-person site tour of Jollyman Park. If an in-person kick-off meeting is feasible, then the meeting and site visit will be scheduled to occur consecutively on the same day.

Task 1.2 Project Scope & Schedule Finalization
MIG will work with the City of Cupertino to customize and finalize the scope and schedule, so that tasks meet the City's preferred process and timeline.

Task 1.3 Background Information Request & Assembly
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EXHIBIT A
Task 1.4 Community Engagement Part 1: Prepare to Engage MIG will develop a plan for community engagement, mapping out how and when to use engagement and communication techniques in a Community Outreach and Engagement Plan. We will work with the City to identify stakeholders, including both City staff and community groups, whose insights and support will help build a successful park. This plan will guide our efforts as we gather information, listen to the community and work towards the final site plan. Should the community engagement plan identify different efforts than those included below, the scope and fee will need to be revised.

Task 1.5 Inclusive Play Primer Presentation
To assist the City in gaining internal staff support for the Jollyman Play Area mission and goals, MIG will provide a two-hour interactive virtual presentation about the importance and goals of an inclusive play area. MIG will create a virtual presentation to be attended by City Staff and key stakeholders. The goal for this meeting is to get all the various stakeholders to understand the project goals, learn information about inclusivity, and begin speaking the same language when it comes to inclusive play environments. The City may post to their website for a period of 3 months and keep a recording of the presentation for internal staff use.

Task 1.6 Project Management and Team Coordination
MIG will coordinate the work of the MIG Team throughout the duration of the design phases, prepare the Project schedule, monitor the Project budget, establish, and monitor project quality, setup project accounting and prepare and submit monthly invoices. The MIG Team will coordinate and strategize with the City via 1-hour video calls to review progress and discuss direction and next steps. Please refer to the accompanying fee spreadsheet for the assumed task duration and number of meetings for each phase. MIG's project manager will participate in these calls, as well as other pertinent team member at times, depending on the agenda.

TASK 1 DELIVERABLES
■ Final Scope and Schedule
■ Community Outreach and Engagement Plan
■ Inclusive Play Primer Recording
■ Coordination meeting notes (for meetings led by the MIG Team) ■ Monthly invoices
TASK 2: DATA COLLECTION AND EXISTING CONDITIONS
TASK 2.1 Topographic Survey
BKF will prepare a topographic survey of the 1.75 ac project area and surroundings as outlined on the project limits diagram (see Survey Exhibit on the last page). Topographic survey will not include a boundary survey.

Task 2.2 Existing Utilities & Stormwater Coordination
BKF will identify existing utilitity locations, through records research and on line databases, perform a Site visit to document those utilities whose above ground features can be determined by visual means and discuss potential utility constraints with MIG and the City. BKF will also document in a graphic the existing project site drainage conditions, along with new stormwater requirements to meet City/County/Regional requirements.

TASK 2.3 Geotechnical Report
Ninyo + Moore will conduct geotechnical sampling, to include taking two exploratory borings within the project site to ascertain subsurface soil conditions. They will interpret borings and provide a geotechnical report to address design of the playground pavement types and footings. Provide a copy of the Geotechnical Report to the City.
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TASK 2.4 Review of Requirements, Existing Conditions and Background Documents The MIG Team will review codes, standards and environmental regulations applicable to Jollyman Pa rk and the potential park improvements. We will review City-provided documents and on-line research, regarding the site's natural, social and cultural history, including land use, demographics, property boundaries, as well as ongoing site operations and maintenance issues.

Task 2.5 Site Analysis, Opportunities & Constraints
The MIG Team will develop a scaled base map of the park site, using an aerial and/or the survey, which assembles relevant information on the existing park site and the area immediately adjacent, including circulation, park features, trees and other information as appropriate. We will prepare a graphic summarizing existing assets, issues and opportunities, including circulation and accessibility, landscape features and overall character, paying special attention to human developmental needs and environmental health and sustainability.

Task 2.6 Community Engagement Part 2: listen, Learn, Vision Building on the engagement plan and key stakeholders identified in Community Engagement Part 1, The MIG Team will prepare graphic materials to be used in several outreach methods identified in the plan. Our assumption is that this will include an on line survey; boards with similar content and a QR code that the City may print, laminate and hang at the park; (1) virtual community meeting; and (2) smaller stakeholder meetings-either virtual or outdoors. Materials will be designed to both share the site analysis and listen to the community's own site expertise and local knowledge. In addition to patterns of use and desired experiences, MIG will work with the City to strategize engagement activities that will also provide an understanding of the site and area' s underlying character and cult ural influences, which can be expressed in the design.

Task 2.7 Analysis and Outreach Summary Report
The MIG team will prepare an existing condition report that details the requirements, existing conditions, assumptions, constraints, opportunities, risks and risk mitigation. The report should also reflect community outreach participant input. This report will be available for the City to post to the web to keep the community informed, for help with fund raising, and for use as background for other City presentations made by City staff.

Task 2.8 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.

TASK 2 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.
■ Topographic Survey (AutoCad file and PDF)
■ Existing Utilities and Drainage Conditions Summary Graphic ■ Geotechnical Report
■ Project Base Map & Site Analysis
■ Site Analysis, Opportunities & Constraints Graphics
■ Community Engagement Part 2 materials
■ Analysis and Engagement Summary Report
■ City Review Meetings Agendas & Meeting summaries
■ Monthly invoices
TASK 3: CONCEPT DESIGN
Task 3.1 Draft Concept Designs
The MIG Team will prepare up to (2) Concept Plans that depict the scale and relationships between the different park areas and show how the elements are organized and connected within each area. Alternatively, the analysis 3 140
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and input may direct the project towards one primary layout with options. The Concept drawings will contain enough information to explain the general form, content, and quality of the design, including:
• Site vision statement with a short narrative description that characterize the main features, unique aspects, visitor experience, program elements, and operations • Concept plan
• Precedent design images to support the design ideas
• Opinion of Probable Costs
• Monthly invoices
Task 3.2 City Review Meeting
Two-hour virtual meeting. MIG will present the (2) Concept Plans to City Staff for feedback and approval. MIG and the City will also use this meeting to coordinate the details of the upcoming public engagement actions and events.

Task 3.3 Commission/Council Meetings
MIG will present the Concept Plans at (2) Commission/Council meetings for input and approval, such as Parks and Recreation Commission and City Council. Assume each is a virtual one-hour meeting. More presentations can be accommodated through extra services if needed.

Task 3.4 Community Engagement Part 3: Consider the Concepts MIG will revise/finalize the Concept Plans per City feedback and create both analog and digital content to share the Concept Plans with the public for evaluation and feedback. MIG will review the public engagement materials with City Staff for approval. MIG will monitor any online survey results over a two- to three-week period. MIG will also lead up to (2) additional community conversations (either facilitated online or, if social distancing policies allow as small coffee meetings), intercept events, pop-ups, or outreach opportunities as determined with the City.

Task 3.5 City Review Meeting
Two-hour virtual meeting. MIG will meet with the City to discuss the community engagement process and feedback; and to go over options and direction for developing the Preferred Concept.

Task 3.6 Preferred Concept Design
The MIG Team will incorporate the public and City feedback into a Preferred Concept. The Preferred Concept will contain enough information to explain the general form, content, and quality of the design, including:
• a statement describing the vision for the site
• a short narrative description that characterizes the main features, unique aspects, visitor experience, program elements, and operations
• precedent design images to support the concept plan
• Conceptual level grading plans for disturbed areas within the project limits • Conceptual utility connection plans including storm drainage, preliminary stormwater treatment and detention facility sizes, sanitary sewer, water, and fire protection services • Opinion of Probable Costs
Task 3.7 City Review Meeting
Two-hour virtual meeting. MIG will present the Preferred Concept to the City for review and feedback.

Task 3.8 Illustrative 3d/Bird's-eye view Graphic
Provide an illustrative 3d or Bird's-eye view site graphic to share with the community and help with fund raising.

Task 3.9 Community Engagement Part 4: Define the Project MIG will finalize the Preferred Concept per the City feedback and will create graphics and materials for a final virtual public presentation. MIG will review the public engagement materials with City Staff for approval. Allow for (1) round of revisions.
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MIG will share the Preferred Concept design and Illustrative Graphic with the public to show how earlier community input shaped the final concept. MIG will provide a multi-media, on line walk-through of the Preferred Concept with an opportunity to provide general feedback. This step is an opportunity to celebrate the culmination of the community engagement process and mark the transition to the next stage-construction drawings and building the new playground.

Task 3.10 City Review Meeting
Two-hour virtual meeting. MIG will meet with City Staff to discuss the public's comments and get final approval before moving into the Construction Documents phase.

Task 3.11 Environmental Approvals Coordination
MIG will provide minor assistance with graphics and coordination. More help may be provided if desired as additional services.

Task 3.12 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.

TASK 3 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.
• Draft Plans & Opinion of Probable Costs
• Commission/Council Presentations (2)
• Community Engagement Part 3 materials and summaries
• City Review Meetings Agendas & Meeting summaries
• Preferred Concept Plan & Opinion of Probable Costs
• Illustrative 3D/Birdseye Graphic
• Community Engagement Part 4 materials and summaries
• Monthly invoices
TASK 4: CONSTRUCTION DOCUMENTS (CD)
The MIG Team will prepare design plans, construction documents, specifications and opinions of probable costs at the milestones noted below. We will schedule the design and bid process, identifying significant milestone dates and actions items for the project team and assist the City in developing bid documents to advertise for construction. 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 4.1 Preliminary CD Plans
The MIG Team will prepare preliminary plans in AutoCAD showing the layout of proposed play area elements, including play elements, paving, site furnishings, planting areas and other site features.

Task 4.2 Preliminary CD City Check-in Meeting
MIG will facilitate a meeting with City staff to review consolidated comments on the preliminary plans to clarify questions and confirm corrections or minor refinements needed for the 50% set. A summary of the meeting will be prepared.

Task 4.3 50% CD Submittal
The MIG Team will prepare construction documents to a 50% 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 5 142
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develop a materials and equipment schedule reflecting site material, equipment and furnishing selections so the City can review the new playground'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 4.4 50% CD Opinion of Probable Costs
The MIG Team will develop an Opinion of Probable Costs based on the submitted plans.

Task 4.5 50% CD Regulatory Approval Coordination/Assistance (Allowance) The MIG Team has a small allowance to allow for regulatory approval document preparation and coordination for City reviews such as ADA review, stormwater, and the maintenance department.

Task 4.6 City Review Meeting
The City will provide one set of consolidated review comments detailing the required changes to the 50% 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 90% CD package.

Task 4.7 90% CD Submittal
Based on the 50% CD's submittal and incorporating the City's direction from the 50% CD review meeting, the MIG Team will prepare construction documents to a 90% level of completion. The MIG Team will also provide CSI format technical specifications related to the scope of work. Design documentation, including specifications, will be consistent with required federal, state, and local codes and regulations.

Task 4.8 90% CD Opinion of Probable Costs & QA/QC Review The MIG Team will develop an Opinion of Probable Costs based on the submitted plans. MIG's QAQC team will perform an in-house review of drawing set and specifications to ensure Quality Assurance+ Quality Control.

Task 4.9 City Review Meeting
The City will provide one set of consolidated review comments detailing any required changes to the Design 90% CD package. These will be discussed and finalized in a two-hour (maximum) virtual meeting between the City and MIG prior to finalizing the 100% CD package.

Task 4.10 100% CD Submittal/Permit Set
Based on the final consolidated list of comments and direction from the City, the MIG Team will advance the construction documents set to a level of 100% completion. We will produce final technical specifications in CSI format to describe the requirements for construction materials, equipment, systems, standards, and workmanship.

The City will be responsible for providing the Division I specifications sections. The MIG team assumes that multiple permit packages are not required and that 100% construction documents will be 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). One round of minor edits may be incorporated by the MIG Team to create the final Permit Set.

Task 4.11 Bid Set Preparation
Incorporating minor revisions related to comments from the permitting review, the MIG Team will prepare final design (bid) documents based on the 100% drawings and techncial specifications.

Task 4.12 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.

TASK 4 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. • Preliminary plans (In-progress check-in) for City Review • Design Development (50% CD) Submittal - Drawings and Spec TOC • Design Development (50% CD) Opinion of Probable Costs 6 143
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• 90% CD Submittal - Drawings and Specs
• 90% CD Opinion of Probable Costs
• 100% CD Drawing Set - Drawings and Specs
• 100% CD Opinion of Probable Costs
• Monthly invoices
TASK 5: BIDDING SUPPORT
Task 5.1 Pre-bid Meeting
MIG will attend the pre-bid meeting to respond to questions about the Construction Documents.

Task 5.2 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 5.3 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 5.4 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.

TASK 5 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. • 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 6: CONSTRUCTION ADMINISTRATION
Task 6.1 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 6.2 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 assumes a maximum 7 144
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of two reviews of contractor submittals and shop drawings. Additional reviews can be provided through additional services (see last section).

Task 6.3 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 6.4 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 6.5 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 6.6 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.

TASK 6 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:
• 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. • Preparation of phased or multiple-packaged construction documents. 8 145
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• 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.
• Arborist Report
• Project Record Drawings
PROJECT SCOPE ASSUMPTIONS:
• CLIENT: 'The City' refers to the City of Cupertino's Jollyman project team. • BUDGET: Scope and fee is based on a construction budget of $2,910,000 ($2,670,000 base budget with a $240,000 contingency). The City has identified a fundraising goal of $1,000,000. If fundraising goals are not met, there will be a shortfall. Redesign to value engineer the project will require a contract modification.
• 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 as 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. • UTILITIES: The site is adequately served by utilities adjacent to the site. • OFFSITE UTILITIES/STREET/PARKING DESIGN: Offsite utility or street/parking design beyond the identified playground area 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.
• EXISTING UTILITY DISTRIBUTION: It is assumed that existing utility distribution systems will not be impacted by the proposed development.
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SURVEY AREA:
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City of Cupertino I Jollyman Park All-Inclusive Playground estimated ro · ect cost
··········-
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EXHIBIT B: Schedule
Jollyman Park All-Inclusive Playground
Task 1: Project Initiation and Ongoing Project Management -January 2022 (0.5 month) Task 2: Data Collection and Existing Conditions -Jan -Feb 2022 (1.5 months) Task 3: Concept Design - Mar -June 2022 (4 months)
Task 4: Construction Documents - June 2022 - Mar 2023 (7 months) Task 5: Bidding Support -Apr.-June 2023 (2.5 months)
Task 6: Construction Administration -June 2023 - Mar. 2024 (9.5 months) Project schedule is subject to refinement at the kickoff meeting and will be regularly updated during the course of the project, working with City staff, to better reflect project needs and City review times. 149
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EXHIBIT C: Hourly Rates and Reimbursable Expenses
Jollyman Park All-Inclusive Playground
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
Principal-in-Charge
Project Manager
Play Specialist/CPS!
Project Associate
Irrigation Designer
Community Outreach Specialist
Senior Urban Designer
Project Assistant
Planner/Master Plan Advisor
ADA Specialist
Graphic Designer
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
$160
$95
$145
$140
$150
$80
$165
$135
$140
Rate
current IRS rate
cost+ 5%
$0.10/print
$0.50/print
cost+ 5%
cost+ 5%
cost+ 5%
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EXHIBITD
Insurance Requirements
Design Professionals & Consultants Contracts
Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City.

INSURANCE POLICIES AND MINIMUMS REQUIRED

1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13).
c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City's own insurance or selfinsurance shall be called upon to protect City as a named insured.

2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease.

J Not required Consultant has provided written verification of no employees.

4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made form:
a The Retroactive Date must be shown and must be before the Effective Date of the Contract. h Insurance must be maintained for at least five ( 5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase "extended reporting" coverage for a minimum of five ( 5) years after completion of the Services.

OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:

Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts Form Updated Sept. 2019 1 151
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Additional Insured Status
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds") are to be covered as additional insureds on Consultant's CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant's insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used).

Primary Coverage
Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it.

Notice of Cancellation
Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums.

Waiver of Subrogation
Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either:
the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City.

Acceptability of Insurers
Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better.

Verification of Coverage
Consultant must furnish acceptable insurance certificates and mandatory endorsements ( or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term.

Subconsultants
Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's insurance policies.

Higher Insurance Limits
If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant.

Adequacy of Coverage
City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. -------------------
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ACORD~ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYYY) ~ 11/22/2021
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS

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

PRODUCER ~2:1~cT The Certfiicate Team
AssuredPartners Design Professionals Insurance Services, LLC PHONE I FAX 3697 Mt. Diablo Blvd Suite 230 'Air I.I ... c.,. \ , IA/C Nol:

Lafayette CA 94549 it1lJ~ss: [email protected] INSURER($) AFFORDING COVERAGE NAIC#
License#:6003745 INSURER A : Berklev Insurance Comoanv 32603 INSURED MIGINC0-01 INSURER B: Travelers Prooertv Casualtv Comoanv of America 25674 MIG, Inc. INSURER c : The Travelers lndemnitv Comoanv of Connecticut 25682 Moore lacofano Goltsman, Inc. 800 Hearst Ave INSURERD :

Berkeley CA 94710 INSURERE :

INSURER F :

COVERAGES CERTIFICATE NUMBER: 2075696555 REVISION NUMBER:

INSR ADDL SUBR
LTR TYPE OF INSURANCE .. ~~ l~~rJ%WJ1 ,~~rJiYMY, , .. n,~ POLICY NUMBER LIMITS B X COMMERCIAL GENERAL LIABILITY y y 6801H899998 8/31 /2021 8/31/2022 EACH OCCURRENCE $ 1,000,000 - □ CLAIMS-MADE 0 OCCUR DAMA<.;E T: yE RENTEu 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 ~ 0 PRO- POLICY JECT 0Loc PRODUCTS - COMP/OP AGG $2,000,000 OTHER: $
C AUTOMOBILE LIABILITY y y BAOS579947 8/31/2021 8/31 /2022 fE~~~~~~~tf lNGLE 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 iP~?~~c~de~RAMAGE $ AUTOS ONLY - AUTOS ONLY $
B X UMBRELLA LIAB MOCCUR y y CUPOH758762 8/31/2021 8/31 /2022 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 /2021 8/31 /2022 X I ~ffTuTE I I OTHER 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 i~iM~if3~ onfoPERATIONS below E.L. DISEASE - POLICY LIMIT $1 ,000,000 A Professional Liability N y AEC904725003 8/3'1/2021 8/31/2022 Each Claim $3,000,000 Annual Aggregate $5,000,000
DESCRIPTION OF OPERATIONS I 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: Jollyman Park All-Inclusive Playground
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
C ity of Cupertino
10300 T orre Ave .

C u pe rtin o CA 95014
CANCELLATION 30 Da s Notice of Cancellation

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE

ACORD 25 (2016/03) T h e ACORD n am e a n d log o are registered marks of ACORD 153
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER: 6801H899998
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):

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 include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" 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 insured and included in the "products-completed operations hazard".

CG 20 37 07 04
CG TS 02XXXX
© ISO Properties, Inc., 2004 Page 1 of 1
DATE OF ISSUE: 08/31/2021 154
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER 6801H899998
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 include 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) designated above.

B. With respect to the insurance afforded to these
additional insureds, the following additional exclusions 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:

CG D3 61 03 05 Copyright 2005 The St. Paul Travelers Companies, Inc. All rights reserved. Page 1 of 1 CG TS 01 xx xx Includes copyrighted material of Insurance Services Office, Inc. with its permission.

DATE OF ISSUE: os131 12021
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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 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.
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 noncontributory 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 injJry'' 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.

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 prmiided 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 r1>nulations.

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.

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

SECTION V - DEFINITIONS

Page 16 ends

Cupertino City CouncilJune 4, 2024

Cupertino City Council
June 4, 2024