REGULAR MEETING OF THE MILPITAS
CITY COUNCIL
September 20, 2022 Milpitas City Council Agenda Page 1
AG E N D A
TUESDAY, SEPTEMBER 20, 2022
CITY COUNCIL CHAMBERS, 455 E CALAVERAS BLVD, MILPITAS, CA 7:00 PM (PUBLIC BUSINESS)
For assistance in the following languages, you may call:
Đối với Việt Nam, gọi 408-586-2400
Para sa Tagalog, tumawag sa 408-586-3051
Para español, llame 408-586-3072
The City Council meeting is held in the City Council Chamber at City Hall, 455 E. Calaveras Blvd., Milpitas and via teleconference/Zoom webinar.
You may watch the Council meeting without providing public comment by accessing it via links here.
Meeting shall be livestreamed - Go to:
Facebook: https://www.facebook.com/CityofMilpitas/
YouTube: https://www.milpitas.gov/youtube
Web Streaming: https://www.milpitas.gov/webstreaming
PUBLIC COMMENT INSTRUCTIONS
Oral public comments may be provided live during the City Council meeting in person or by registering for the zoom meeting in advance. To register you will need to provide an email address (not disclosed) and a name. To minimize technical difficulties, please make sure that you have the latest version of the Zoom Application. Below is the link to register for this meeting only:
https://ci-milpitas-ca-gov.zoom.us/webinar/register/WN_-aQ-IiBxSSmDYZEfaHDszw After you register a link will be sent to you to join the City Council meeting in order to give your comments.
All registered meeting attendees who wish to speak must click on the “raise hand” icon when the Mayor calls for public comments. If participating by calling in on your phone, dial *9 to use the “raise hand” feature, and when you are called upon, hit *6 to unmute your phone. Your phone number will be displayed in the live meeting. The Mayor will call the speakers to begin.
All comments provided shall be limited to three minutes or less as determined by the Mayor. All members of the public will be limited to one comment per agenda item, and one comment for non-agenda items.
MILPITAS CITY COUNCIL CODE OF CONDUCT
Be respectful and courteous (words, tone, and body language). Model civility.
Avoid surprises.
Praise publicly and criticize privately.
Focus on the issue, not the person.
Refrain from using electronic devices while on the Council dais. Disclose conflicts of interest and affiliations related to agenda items. Separate governing from campaigning.
The Council speaks with one voice after making policy on issues. Respect the line between policy and administration.
Council will hold one another accountable to comply with this Code of Conduct.
1 September 20, 2022 Milpitas City Council Agenda Page 2
CALL MEETING TO ORDER by Mayor and ROLL CALL by City Clerk (insert time)
PLEDGE OF ALLEGIANCE
INVOCATION (Councilmember Dominguez)
PRESENTATIONS (7:05 PM)
PUBLIC FORUM (7:10 PM)
Those in the audience and via Zoom are invited to address City Council on any subject not on tonight’s agenda. In-person speakers wishing to address the Council are requested, but not required to complete a Speaker Card and submit it to the Mayor. In-person speakers will then be asked to come up to the podium and state their name for the record. Those interested in speaking via Zoom may do so by following the instructions on page one (1) of the agenda. Comments may be limited to three (3) minutes or less at the Mayor’s discretion. As an item not listed on the agenda, no response is required from City staff or the Council and no action can be taken. The City Council may instruct the City Manager to place the item on a future meeting agenda.
NOTE: If a member of the public wishes to share any presentation materials for Council consideration, they must be submitted to the Clerk’s Office by email to [email protected] by 12:00 p.m. on the day of the meeting. No presentations will be accepted in person in the Council Chambers.
ANNOUNCEMENTS AND FUTURE AGENDA ITEMS (7:20 PM)
Members of the City Council or City Manager may make brief announcements at this time. Members of the City Council may also suggest future agenda items at this time. For future agenda items, the City Council shall not debate the topic or engage in discussion but shall simply state a “yes” or “no” as to whether to direct the City Manager to place the item on a future meeting agenda. If a majority of the City Council agrees to place an item on a future meeting agenda, the City Manager shall place the item on a future agenda for City Council discussion.
ANNOUNCEMENT OF CONFLICT OF INTEREST AND CAMPAIGN CONTRIBUTIONS
READING OF THE CITY COUNCIL CODE OF CONDUCT
APPROVAL OF AGENDA
CONSENT CALENDAR (7:25 PM)
Consent calendar items are considered to be routine and will be considered for adoption by one motion. There will be no separate discussion of these items unless a City Councilmember, member of the audience or staff requests the Council to remove an item from (or be added to) the consent calendar. Any person desiring to speak on any item on the consent calendar should ask to have that item removed from the consent calendar.
C1. Receive City Council Calendars of Meetings for September and October 2022 (Staff Contact:
Suzanne Guzzetta, Acting City Clerk, 408-586-3001)
Recommendation: Receive City Council Calendars of Meetings for September and October 2022.
C2. Approve City Council City Council Regular Meeting Minutes of September 6, 2022 (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408-586-3001) Recommendation: Approve City Council Regular Meeting minutes of September 6, 2022.
C3. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408-586-3001) Recommendation: Receive the list of anticipated agenda items for the next regular City Council meeting.
C4. Receive and Review the List of Agenda Items Requested by City Councilmembers (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408-586-3001) 2 September 20, 2022 Milpitas City Council Agenda Page 3
Recommendation: Review the list of items that have been requested by City Councilmembers and provide direction to staff as necessary. No substantive discussion about any specific item shall occur and the City Council shall hold all debate about the item until it is scheduled as a full agenda item.
C5. Adopt a Resolution Updating the Conflict of Interest Code in 2022 and Amending List of Designated Disclosure Positions for the City of Milpitas (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408-586-3001; and Michael Mutalipassi, City Attorney, 408-586-3041) Recommendation: Adopt a resolution updating the 2022 City of Milpitas Conflict of Interest Code, including the list of designated positions required to annually file the FPPC Form 700 Statement of Economic Interests.
C6. Accept the FY 2021-22 Commissioners Annual Report for Six (6) Commissions and Approve Six (6) City of Milpitas Commission Work Plans for FY 2022-23 (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053; and Walter C. Rossmann, Deputy City Manager, 408-586- 3012)
Recommendation: (1) Accept the 2021-22 Commissioners Annual Report; and (2) Approve proposed Fiscal Year 2022-23 Work Plans for (a) Arts Commission, (b) Library and Education Commission, (c) Parks, Recreation and Cultural Resources Commission, (d) Senior Advisory Commission, (e) Veterans Commission, and (f) Youth Advisory Commission.
C7. FY 2021-22 Fourth Quarter Financial Status Report, Fund Balances Thereof and Related Budget Amendments to Close-out the FY 2021-22 Budget (Staff Contact: Lauren Lai, Finance Director, 408-586-3111)
Recommendation: (1) Review the FY 2021-22 Quarterly Financial Status Report for the quarter ending June 30, 2022 (unaudited); and (2) Approve budget, contingency and reporting recommendations.
C8. Authorize the City Manager to Execute a Master Encroachment Agreement for Mobilitie, LLC, a Nevada Limited Liability Company for Installation of Network Facilities Within Public Right-of- Way (Staff Contact: Steve Erickson, Engineering Director/City Engineer, 408-586-3301; and Roberto Alonzo, Principal Civil Engineer, 408-586-3316) Recommendation: Authorize the City Manager to execute a Master Encroachment Agreement for Mobilitie, LLC, a Nevada Limited Liability Company, for installation of network facilities within the public right-of-way.
C9. Approve and Authorize the City Manager to Execute a Sole Source One-Year Agreement with CentralSquare Inc. for Maintenance and Support of the Public Safety Computer Aided Dispatch System for the Not-to-Exceed Amount of $129,264.92 (Staff Contact: Daniel Nam, Information Technology Director, 408-586-2712)
Recommendation: Approve and authorize the City Manager to execute a sole source one-year agreement with CentralSquare Inc. for maintenance and support of the Public Safety Computer Aided Dispatch System for the not-to-exceed amount of $129,264.92, pending final approval by City Attorney.
C10. Authorize and Approve Travel to Anaheim, CA for City Manager Steve McHarris to Attend the Annual Conference of the American Planning Association – California Chapter – to be held October 1 – 4, 2022. (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053) Recommendation: Authorize and approve travel to Anaheim, CA for City Manager Steve McHarris to attend the Annual Conference of the American Planning Association – California Chapter – to be held October 1 – 4, 2022, for an estimated not-to-exceed amount of $2,500 budgeted under Conferences/Trainings allocation for the City Manager’s Office. 3 September 20, 2022 Milpitas City Council Agenda Page 4
C11. Adopt a Resolution Authorizing the City Manager to Execute the Extension of the Sole Source Services Agreement with Flock Group Inc. for Automated License Plate Reader (ALPR) Cameras in an Amount Not-to-Exceed $314,750.00 and Renew the Agreement for One Three-Year Period Subject to Annual Appropriation of Funds. (Staff Contact: Jared Hernandez, Chief of Police, 408- 586-2406)
Recommendation: Adopt a resolution authorizing the City Manager to execute the extension of the sole source services agreement with Flock Group, Inc. for Automated License Plate Reader (ALPR) Cameras in an amount not-to-exceed $314,750 and renew the agreement for one three-year period subject to annual appropriation of funds; and authorize the Chief of Police to execute contract change orders in an aggregate amount not to exceed $78,500.00.
C12. Award IFB 23-009 and Authorize the City Manager to Execute the Purchase Order with Iteris Inc. for the Purchase of Thirty Iteris Traffic Cameras for the Not-to-Exceed Amount of $125,606.25 (Staff Contact: Roger Lee, Interim Public Works Director, 408-586-2602; and Chris Schroeder, Purchasing Agent, 408-586-3161)
Recommendation: Award IFB 23-009 and authorize the City Manager to execute the purchase order with Iteris Inc. for the purchase of thirty Iteris traffic cameras for the not-to-exceed amount of $125,606.25.
C13. Approve and Authorize the City Manager to Execute the Five-Year General Services Agreement with Aramark Uniform Service for Citywide Uniform, Mat, and Linen Services for the not-to- exceed amount of $240,916.30 (Staff Contact: Chris Schroeder, Purchasing Agent, 408-586-3161) Recommendation: Approve and authorize the City Manager to execute the five-year General Services Agreement with Aramark Uniform Service for Citywide Uniform, Mat, and Linen Services for the not-to- exceed amount of $240,916.30.
C14. Consider Sunnyhills Neighborhood Association Fee Waiver Request (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408-586-3409) Recommendation: Approve a fee waiver of $1,317.00 for the Sunnyhills Neighborhood Association Halloween Event scheduled for October 29, 2022.
C15. Consider Korean Language and Culture Foundation’s Annual Korean Alphabet Event Donation Request (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408- 586-3409)
Recommendation: Approve a donation of $500.00 for the Korean Language and Culture Foundation's annual Korean Alphabet Event scheduled for October 2, 2022.
C16. Consider the Recommendations from Mayor Tran for Appointments to City Commissions (Contact: Mayor Tran, 408- 586-3029)
Recommendation: Receive the recommendation from Mayor Tran and approve appointments to the Energy and Environmental Sustainability Commission and Youth Advisory Commission.
C17. Accept Commissioner Resignations (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408- 586-3001)
Recommendation: Accept the resignation of Khloe Cruz from the Youth Advisory Commission and Dana Arbaugh from the Library and Education Advisory Commission; and direct the Acting City Clerk to post the notice of unscheduled vacancy.
4 September 20, 2022 Milpitas City Council Agenda Page 5
C18. Second Reading of Ordinance No. 228.1 of the City Council of the City of Milpitas Adding Chapter 9 (“Use Of Rights-Of-Way And Public Property”) to Title X (“Streets And Sidewalks”) of the Milpitas Municipal Code and Adding Section X-10-1.03 to Chapter 10 (“Structures Or Objects On Sidewalks Or Public Ways”) to Title X (“Streets And Sidewalks”) of the Milpitas Municipal Code (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3041) Recommendation: Move to waive second reading and adopt Ordinance No. 228.1 of the City Council of the City of Milpitas adding Chapter 9 (“Use Of Rights-of-way and Public Property”) to Title X (“Streets and Sidewalks”) of the Milpitas Municipal Code and adding Section X-10-1.03 to Chapter 10 (“Structures or Objects on Sidewalks or Public Ways”) to Title X (“Streets and Sidewalks”) of the Milpitas Municipal Code.
PUBLIC HEARINGS (7:30 PM)
Members of the public may be allotted up to three (3) minutes or less at the Mayor’s discretion, to comment on any public hearing item. Applicants/Appellants and their representatives may be allotted up to a total of ten (10) minutes for opening statements and up to a total of five (5) minutes maximum for closing statements. Items requested/recommended for continuance are subject to Council’s consent at the meeting.
19. Conduct a Public Hearing and Introduce Ordinance No. 38.846 Amending Sections of Chapter 10, Title XI of the Milpitas Municipal Code Relating to Non-Residential Building Heights (Staff Contact: Ned Thomas, Planning Director, 408-586-3273)
Recommendation: (1) Conduct a public hearing and move to close the hearing following comments; (2) City Attorney shall read aloud title of the Ordinance; and (3) Move to waive the first reading beyond the title and introduce an Ordinance amending sections of Chapter 10 of Title XI of the Milpitas Municipal Code relating to Non-Residential Building Heights and determine that the Municipal Code amendment is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15183 (Projects Consistent with a General Plan) and 15061(b)(3) (Common Sense Exemption).
20. Conduct a Public Hearing and Approve the Draft FY 2021-2022 Community Development Block Grant’s (CDBG) Consolidated Annual Performance and Evaluation Report (CAPER) (Staff Contact: Alex Andrade, Economic Development Director, 408-586-3046; and Robert Musallam, Housing and Neighborhood Services Administrator, 408-586-3275) Recommendation: (1) Open the public hearing, hear testimony, then move to close the public hearing; (2) Approve the draft FY 2021-2022 Community Development Block Grant’s (CDBG) Consolidated Annual Performance and Evaluation Report (CAPER); and (3) Authorize the City Manager, or designee, to make any necessary changes and to submit the approved draft FY 2021-2022 CAPER to the U.S. Department of Housing and Urban Development (HUD) to comply with CDBG requirements.
COMMUNITY DEVELOPMENT (8:30 PM)
21. 6th Cycle Draft Housing Element (2023-2031) (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053; and Alex Andrade, Economic Development Director, 408-586-3046) Recommendation: (1) Receive a presentation on the Draft Housing Element; (2) receive public comments; and (3) provide comments to be reflected in a revised Draft Housing Element to be submitted to the California Department of Housing and Community Development (HCD) for its review.
LEADERSHIP AND SUPPORT SERVICES (9:45 PM)
22. Discussion of State Funding Plan for Bike Lanes Facilities Enhancement and Homelessness Prevention and Unhoused Services (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053; and Walter C. Rossmann, Deputy City Manager, 408-586-3012) 5 September 20, 2022 Milpitas City Council Agenda Page 6
Recommendation: Receive presentation and provide feedback on the approved $2.5 Million in State Funding for Bike Lane Facilities Enhancement and Homelessness Prevention and Unhoused Services.
ADJOURNMENT (10:30 PM)
KNOW YOUR RIGHTS UNDER THE OPEN GOVERNMENT ORDINANCE
Government’s duty is to serve the public, reaching its decisions in full view of the public. Commissions and other City agencies exist to conduct the people’s business. This ordinance assures that deliberations are conducted before the people and City operations are open to the people’s review. For more information on your rights under the Open Government Ordinance or to report a violation, contact the City Attorney’s office at Milpitas City Hall, 455 E. Calaveras Blvd., Milpitas, CA 95035 e-mail:[email protected] / Phone: 408-586-3040
The Open Government Ordinance is codified in the Milpitas Municipal Code as Title I Chapter 310 and is available online at the City’s website www.milpitas.gov by selecting the Milpitas Municipal Code link.
Materials related to an item on this agenda submitted to the City Council after initial distribution of the agenda packet are available for public inspection at the City Clerk’s office at Milpitas City Hall, 3rd floor 455 E. Calaveras Blvd., Milpitas and on City website. City Council agendas and related materials can be viewed online: www.milpitas.gov/government/council/agenda_minutes.asp (select meeting date)
APPLY TO SERVE ON A CITY COMMISSION
Commission application forms are available online at www.milpitas.gov or at Milpitas City Hall.
Contact the City Clerk’s Office at 408-586-3001 for more information.
If you need assistance, per the Americans with Disabilities Act, for any City of Milpitas public meeting, please call the City Clerk at 408-586-3001 or send an e-mail to [email protected] prior to the meeting. You may request a larger font agenda.
6 Updated 9/16/22
MILPITAS CITY COUNCIL CALENDAR
September 2022
Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 5:30 PM-Santa Clara VTA Board
of Directors (CM)
5:30 PM-Milpitas Chamber of
Commerce Board (EC)
2 3
4 5
CITY HOLIDAY
City Hall Closed
6 7:00 PM-City Council
7 2:00 PM-Santa Clara VTA
Monthly Briefing - Northeast
Group (CM)
7:00 PM-Community Advisory
Commission (EC)
8 4:00 PM-Santa Clara VTA Policy
Advisory Committee (AP)
4:00 PM-Treatment Plant
Advisory Committee (CM)
7:00 PM-Cities Assoc of SCC
(CM)
7:00 PM-Youth Advisory
Commission (EC)
9 7:00 PM-Lantern Festival (Civic
Center Plaza)
10 11 12
4:30 PM-Economic Development
and Trade Commission (KD)
7:00 PM-Parks, Recreation &
Cultural Resources Commission
(CM)
13 4:00 PM-Milpitas HOPE Suicide
Prevention Task Force
5:00 PM Odor Reduction Ad Hoc
Subcommittee (RT/CM)
6:00 PM-Community Workshop
#3 for the Draft Housing Element
(virtual)
14 7:00 PM-Planning Commission
7:00 PM-Silicon Valley Clean
Energy Board of Directors (EC)
15 9:00 AM-Milpitas SMART Kick-
Off Event (Milpitas City Hall
Parking Lot)
10:00 AM-VTA Congestion
Mgmt Prog Plng Comm. (CM)
5:30 PM-Measure F Oversight
Committee
6:30 PM-Bay Area Water Supply
Conserv Agency (CM)
7:00 PM-Public Safety and
Emergency Preparedness
Commission (KD)
16 9:00 AM-Special VTA Board
Workshop (CM)
*4:30 PM-City Council Finance
Subcommittee (RT/CM)
6:00 PM-In-Person: Mexican
Independence Day Flag Raising
(Cesar Chavez Plaza)
17 18 19
7:00 PM-Library and Education
Commission (Milpitas Library)
(EC)
20 7:00 PM-City Council
21 6:00 PM-Energy and
Environmental Sustainability
Commission (EC)
22 4:00 PM-Silicon Valley Regional
Interoperability Authority
(SVRIA) (KD)
23 4:00 PM-City/School
Collaborative Subcommittee-City
Hosting (RT/CM)
24 25 26
7:00 PM-Arts Commission (RT)
27 28
7:00 PM-Planning Commission
29 30
*Finance Subcommittee will meet only as needed
August 2022
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
October 2022
S M T W T F S
1 2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30 31
League of CA Cities Annual Conference and Expo, Long Beach CA: City Manager McHarris 7 Item # C1.
Updated 9/16/22
MILPITAS CITY COUNCIL CALENDAR
October 2022
Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 10:00 AM-Filipino
American history
Month Flag
Raising (Cesar
Chavez Plaza)
2 3
7:00 PM-Parks, Recreation &
Cultural Resources Commission
(CM)
4 ?:00 PM-Closed Session
7:00 PM-City Council
5 2:00 PM-Santa Clara VTA
Monthly Briefing - Northeast
Group (CM)
5:30 PM-Veterans Commission
(RT)
7:00 PM-Community Advisory
Commission (EC)
6 5:30 PM-Milpitas Chamber of
Commerce Board (EC)
5:30 PM-Santa Clara VTA Board
of Directors (CM)
7 8
9 10
4:30 PM-Economic Development
and Trade Commission (KD)
11 4:00 PM-Milpitas HOPE Suicide
Prevention Task Force
12 4:00 PM-Transportation
Subcommittee (RT/CM)
7:00 PM-Silicon Valley Clean
Energy Board of Directors (EC)
(Cupertino)
7:00 PM-Planning Commission
13 4:00 PM-Treatment Plant
Advisory Committee (CM)
4:00 PM-Santa Clara VTA Policy
Advisory Committee (AP)
7:00 PM-Youth Advisory
Commission (EC)
7:00 PM-Cities Assoc of SCC
(CM)
14 4:00PM -Art Walk @
Murphy Park
*4:30 PM-City Council
Finance Subcommittee
(RT/CM)
15 16 17
7:00 PM-Science, Technology,
and Innovation Commission (RT)
18 ?:00 PM-Closed Session
7:00 PM-City Council
19 6:00 PM-Energy and
Environmental Sustainability
Commission (EC)
20 10:00 AM-VTA Congestion
Mgmt Prog. Planning (CM)
10:00 AM-Quarterly South Bay
Odor Stakeholders Group
Meeting (RT)
21 22
10:00 AM-
Pumpkins in the
Park @ Cardoza
Park
23 24 25
1:30 PM-Senior Advisory
Commission (EC)
5:30 PM-Special Council
Meeting (tent)
26 5:00 PM-Alviso Adobe Ribbon
Cutting Ceremony
5:30 PM-Cities Assoc. of SCC -
Recycling and Waste Reduction
Commission (AP)
7:00 PM-Planning Commission
27 12:00 PM-SCC Library JPA
Board of Directors Mtg (EC)
28 4:00 PM-City/School
Collaborative
Subcommittee – MUSD
Hosting (RT/CM)
29 3:00 PM-El dia
de los Muertos
event
30 31
*Finance Subcommittee will meet only as needed
September 2022
S M T W T F S
1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30
November 2022
S M T W T F S
1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30
8 Item # C1.
REGULAR MEETING OF THE MILPITAS
CITY COUNCIL
September 6, 2022 Milpitas City Council Minutes Page 1
M I NU TE S
TUESDAY, SEPTEMBER 6, 2022
CITY COUNCIL CHAMBERS, 455 E CALAVERAS BLVD, MILPITAS, CA 7:00 PM (PUBLIC BUSINESS)
The City Council of the City of Milpitas convened on the regular City Council meeting day of June 21, 2022, in the City Council Chamber at City Hall, 455 E. Calaveras Blvd., Milpitas, and via teleconference/Zoom webinar.
CALL MEETING TO ORDER by Mayor and ROLL CALL by Acting City Clerk Mayor Tran called the regular City Council meeting to order at 7:00 PM. Roll call was taken by Acting City Clerk Guzzetta.
PRESENT: Mayor Tran, Vice Mayor Montano, Councilmembers Chua, Dominguez, and Phan.
ABSENT: None.
PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Mayor Tran.
INVOCATION
Councilmember Dominguez led a moment of silence for community members lost to COVID-19.
PRESENTATIONS
Mayor Tran presented proclamations recognizing National Pain Awareness Month, National Suicide Prevention Week, National Preparedness Month, National Cleanup Day, and National Gymnastics Day.
The Mayor and Council accepted a check presented by Assembly Member Alex Lee for Homelessness Prevention and Unhoused Services and Bike Lanes Facilities Enhancement Funding.
PUBLIC FORUM
The following people spoke under Public Forum:
1. Allysson McDonald
2. Voltaire Montemayor
3. Tom Valore
ANNOUNCEMENTS AND FUTURE AGENDA ITEMS
City Manager McHarris announced the 3rd Virtual Community Workshop on the Housing Element to be conducted on September 13, 2022 and announced the launch of Milpitas SMART as a 12-month pilot program jointly funded with a grant from Valley Transportation Agency.
Councilmember Dominguez made the following requests:
9 Item # C2.
September 6, 2022 Milpitas City Council Minutes Page 2
1. Requested an agenda item for the next City Council meeting to approve a Waiver for the Halloween Event sponsored by Sunnyhills Neighborhood Association. Mayor Tran noted that the non-profit should contact the City Manager.
2. Asked for a conversation on possible partnerships between the City and Milpitas Unified School District to discuss housing affordability issues for educators. Mayor Tran indicated the City-School Collaborative Subcommittee recently discussed this item and passed a resolution in support.
Councilmember Dominguez asked for the subcommittee liaison to provide minutes of that meeting to the City Council.
Councilmember Phan expressed thanks to Assembly Member Lee for the work completed by the State Legislature in this session, highlighting AB 2949 to provide toll exemptions for veterans, and AB 2164 to provide funding for ADA compliance for small businesses. He announced that Assembly Member Lee would be hosting an event at Taqueria Las Vegas on September 7, 2022 for Latino Heritage Honorees.
Councilmember Chua commended the increased number of ADUs completed in Milpitas this year. She requested City Manager McHarris to schedule another ADU workshop, and announced that on Saturday, September 10, 2022, from 9 a.m. to noon, there will be a celebration for the opening of the Senior Center on Saturdays.
Vice Mayor Montano expressed additional support for ADUs and announced that the City of Milpitas will host the first Mexican Independence Flag raising ceremony to be held in Milpitas on September 16, 2022.
ANNOUNCEMENT OF CONFLICT OF INTEREST AND CAMPAIGN CONTRIBUTIONS City Attorney Mutalipassi asked the Mayor and City Councilmembers if they had any personal conflicts of interest. By roll call, there were no conflicts of interest. City Attorney Mutalipassi asked the Mayor and City Councilmembers if they had any reportable campaign contributions. By roll call, there were no reportable campaign contributions.
READING OF THE CITY COUNCIL CODE OF CONDUCT
Mayor Tran read the Code of Conduct.
APPROVAL OF AGENDA
Motion: to approve the September 6, 2022 Regular Meeting Agenda.
Motion/Second: Mayor Tran/ Councilmember Chua
Motion carried by the following:
AYES: Councilmembers Chua, Dominguez, Phan, Vice Mayor Montano, Mayor Tran NOES: None
CONSENT CALENDAR
Motion: to approve the consent calendar removing Items 12 and 13 from the consent calendar to be heard after Item 19.
Motion/Second: Mayor Tran / Vice Mayor Montano
Motion carried by the following:
AYES: Councilmembers Chua, Dominguez, Phan, Vice Mayor Montano, Mayor Tran NOES: None
C1. Receive City Council Calendar of Meetings for September 2022 (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408-586-3001)
10 Item # C2.
September 6, 2022 Milpitas City Council Minutes Page 3
Received City Council Calendars of Meetings for September 2022.
C2. Approve City Council City Council Regular Meeting minutes of August 16, 2022 (Staff Contact:
Suzanne Guzzetta, Acting City Clerk, 408-586-3001)
Approved City Council Regular Meeting minutes of August 16, 2022.
C3. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting (Staff Contact: Suzanne Guzzetta, Acting City Clerk, 408-586-3001) Received the list of anticipated agenda items for the next regular City Council meeting.
C4. Receive and Review the List of Agenda Items Requested by City Councilmembers (Contact:
Suzanne Guzzetta, Acting City Clerk, 408-586-3001)
Reviewed the list of items that have been requested by City Councilmembers and provide direction to staff as necessary. No substantive discussion about any specific item shall occur and the City Council shall hold all debate about the item until it is scheduled as a full agenda item.
C5. Reconfirm Findings and Determinations Under Resolution No. 9165 and Assembly Bill 361 for the Continuation of Virtual Meetings of the City Council and Legislative Bodies (Staff Contact:
Michael Mutalipassi, City Attorney, 408-586-3040)
Moved to reconfirm findings and determinations under Resolution No. 9165 and Assembly Bill 361 for the continuation of virtual meetings of the City Council and Legislative Bodies.
C6. Review and Accept the 2022 Legislative Season Action Report and Direct Staff to Issue a Request for Proposals for Federal and State Legislative Advocacy Services (Staff Contact:
Ashwini Kantak, Assistant City Manager, 408-586-3053, and Walter C. Rossmann, Deputy City Manager, 408-586-3012)
Reviewed and accepted the Quarterly Legislative Season Action Report and directed staff to issue a request for proposals for Federal and State Legislative Advocacy Services.
C7. Consider the Recommendations from Mayor Tran for Appointments to the Youth Advisory Commission (Contact: Mayor Tran, 408- 586-3029)
Received the recommendation from Mayor Tran and approve appointments to the Youth Advisory Commission.
C8. Confirm Appointment of Milpitas Unified School District Representative to the Energy and Environmental Sustainability Commission (Contact: Suzanne Guzzetta, Acting City Clerk, 408- 586-3001)
Confirmed appointment of Milpitas Unified School District representative Jared Acosta to the Energy and Environmental Sustainability Commission to an unexpired term ending October 2023.
C9. Approve the 2022 Youth Advisory Commission Scholarship Recipients (Staff Contact: Renee Lorentzen, Director of Recreation and Community Services, 408-586-3409) Approved budget appropriation of $1,500.00 to the Recreation and Community Services Department operating budget for three individual $500.00 Youth Advisory Commission Community Service Scholarships.
C10. Adopt a Resolution Approving a Site Development Permit to Develop a New Two-story, Single- family Residence on a Vacant 4.67-acre Lot Located in the R1-H Single-family Residential 11 Item # C2.
September 6, 2022 Milpitas City Council Minutes Page 4
Zoning District with a Hillside Combining District at 489 Vista Ridge Drive (Staff Contact: Ned Thomas, Planning Director, 408-586-3273)
Adopted Resolution No. 9189 approving Site Development Permit SD21-0011, subject to the attached Conditions of Approval, for a new two-story, single-family residence on a vacant 4.67-acre lot located in the R1-H single-family residential zoning district with a hillside combining district at 489 Vista Ridge Drive and making findings of CEQA Exemption.
C11. Approve Change Order No. 1 to the Contract with Trofholz Technologies for the Installation of Card Access Control and Monitoring Systems at Fire Stations in the Amount of $39,162.70, Increasing the Total Project Not to Exceed Amount from $104,324.42 to $143,487.12 (Staff Contact: Roger Lee, Interim Public Works Director, 408-586-2602 and Chris Schroeder, Purchasing Agent, 408-586-3161)
(1) Approved Change Order No. 1 to the contract with Trofholz Technologies for the installation of card access control and monitoring systems at Fire Stations in the amount of $39,162.70, increasing the total project amount not to exceed from $104,324.42 to $143,487.12; and (2) Authorized the City Manager to execute one or more additional change orders related to the project to increase the maximum compensation amount to not to exceed $158,487.12.
C12. Approve and Authorize the City Manager to Execute the Five-Year General Services Agreement with Aramark Uniform Service for Citywide Uniform, Mat, and Linen Services for the not-to- exceed amount of $240,916.30 (Staff Contact: Chris Schroeder, Purchasing Agent, 408-586-3161) Item removed from Consent.
C13. Approve and Authorize the City Manager to Execute Amendment No. 2 to the Professional Services Agreement with WeHOPE for Mobile Shower, Laundry, and Case Management Services through January 15, 2023 for a Total Contract Amount of Not to Exceed $86,552.00 (Staff Contact: Alex Andrade, Director of Economic Development, 408-586-3046, and Robert Musallam, Housing and Neighborhood Services Administrator, 4089-586-3275) Item removed from Consent.
C14. Authorize and Approve Out-of-State Travel to Columbus, OH for City Manager Steve McHarris to Attend the Annual Conference of the International City/County Management Association to be held September 17 – 21, 2022. (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586- 3053)
Authorized and approved out-of-state travel to Columbus, OH for City Manager Steve McHarris to attend the Annual Conference of the International City/County Management Association (ICMA) to be held September 17 – 21, 2022, for an estimated not-to-exceed amount of $3,500.00 under the approved budget for Conferences/Trainings allocation for the City Manager’s Office.
COMMUNITY SERVICES AND SUSTAINABLE INFRASTRUCTURE
15. Review the Proposed Youth Sports Scholarship Program City Council Policy and Provide Feedback to Staff (Staff Contact: Renee Lorentzen, Director of Recreation and Community Services, 408-586-3409)
Deputy City Manager Rossmann presented the report.
Councilmember Chua requested additional scholarship allocations for: 1) Scholastic Improvement, 2) Community Service, and 3) NJROTC.
12 Item # C2.
September 6, 2022 Milpitas City Council Minutes Page 5
Mayor Tran voiced support for an NJROTC scholarship and asked to bring forward initiating the process to transfer the Mayor’s budget allocation for training/travel to support scholarships, and requested the process be brought back as an item for City Council consideration. City Manager McHarris said it could not be considered at this time but could be brought back at a later date.
There were the following speakers
1. Voltaire Montemayor
Mayor Tran concluded that he preferred not to wait until the Mid-Year Budget process and asked to direct staff to return to Council with a request to transfer the Mayor’s travel budget to an NJROTC scholarship. City Manager McHarris noted that City Council would need to agree to the transfer and cautioned that the budget for travel and training also encompasses the term of the incoming mayor to be elected. The Mayor asked to include consideration of transferring the Mayor’s travel/training budget allocation to an NJROTC scholarship when the policy returns to City Council in October.
LEADERSHIP AND SUPPORT SERVICES
16. Appoint Members to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Community Task Force (Staff Contact: Walter Rossmann, Deputy City Manager, 408-586-3012)
Deputy City Manager Rossmann presented the report.
The following members of the public spoke:
1. Voltaire Montemayor
Councilmember Phan asked the Council to appoint Councilmember Dominguez to the Task Force.
Motion: to approve the appointment of Giuliana Brahim, Dr. Swatisikta, Zakia Afrin, and Vicky Ly as Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Community Task Force members; and appoint Councilmember Dominguez as Council Liaison to the CEDAW Community Task Force.
Motion/Second: Councilmember Phan / Mayor Tran
Motion carried by the following:
AYES: Councilmembers Chua, Dominguez, Phan, Vice Mayor Montano, Mayor Tran NOES: None
17. Introduce an Ordinance of the City Council of the City Of Milpitas Adding Chapter 9 (“Use of Rights-of-Way and Public Property”) to Title X (“Streets and Sidewalks”) of the Milpitas Municipal Code and Adding Section X-10-1.03 to Chapter 10 (“Structures or Objects on Sidewalks or Public Ways”) to Title X (“Streets and Sidewalks”) of the Milpitas Municipal Code (Staff Contact: Michael Mutalipassi, City Attorney, 408-586-3041) City Attorney Mutalipassi presented the report.
The following spoke during public comment:
1. Allysson McDonald
2. Tom Valore
3. Voltaire Montemayor
Councilmember Phan voiced dissent for the item until shelter services and plans are in place and housing available.
13 Item # C2.
September 6, 2022 Milpitas City Council Minutes Page 6
Councilmember Dominguez expressed concerns relating to enforcement and opted to abstain from the vote.
After discussion, motion: to waive reading of Ordinance No. 228.1 and introduce an Ordinance of the City Council of the City of Milpitas Adding Chapter 9 (“Use Of Rights-of-way and Public Property”) to Title X (“Streets and Sidewalks”) of the Milpitas Municipal Code and adding Section X-10-1.03 to Chapter 10 (“Structures or Objects on Sidewalks or Public Ways”) to Title X (“Streets and Sidewalks”) of the Milpitas Municipal Code
Motion/Second: Mayor Tran / Councilmember Chua
Motion carried by the following:
AYES: Councilmembers Chua, Vice Mayor Montano, Mayor Tran NOES: Phan
ABSTAIN: Dominguez
18. Review the List of Agenda Item Requests From Individual Councilmembers and Provide Direction to Staff, Through the Prioritization Process, on Groups 1 Items; Provide Additional Clarification to Staff, If Any, on Group 2 Items and Direct staff to return with a draft City Council Policy titled “City Council Request Prioritization Policy” formalizing the process (Staff Contact:
Ashwini Kantak, Assistant City Manager, 408-586-3053; Walter C. Rossmann, Deputy City Manager, 408-586-3012)
Assistant City Manager Kantak presented the report.
The following spoke during public comment:
1. Voltaire Montemayor
2. Barbara Navarro
Council reviewed the list of agenda item requests from individual Councilmembers, and individually voted electronically for four items in group one to advance as a priority.
Acting City Clerk Guzzetta read the result of the vote with the following items receiving a majority of votes and moving forward:
CC 2 Explore an ordinance or policy to reduce thefts and increase security in the commercial retail parking areas
CC 3 Explore the policy for locking mechanisms on shopping carts for large commercial businesses CC 6 Prepare Vision Zero Action Plan
CC 7 Establish a fund for real estate acquisitions
CC 8 Memorial Plaque in honor of youth skateboarder that passed away
19. Consider Nomination of a Member of the City Council to the Santa Clara County Unhoused Task Force for Appointment by the Santa Clara County Board of Supervisors (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053)
Assistant City Manager Kantak presented the report.
There was no public comment.
Motion: to confirm Councilmember Chua as the Member of the Milpitas City Council appointed to the Santa Clara County Unhoused Task Force and confirm the nomination for appointment by the Santa Clara County Board of Supervisors.
14 Item # C2.
September 6, 2022 Milpitas City Council Minutes Page 7
Motion/Second: Mayor Tran / Councilmember Phan
Motion carried by the following:
AYES: Councilmembers Chua, Dominguez, Phan, Vice Mayor Montano, Mayor Tran NOES: None
ITEMS REMOVED FROM CONSENT CALENDAR
C12. Approve and Authorize the City Manager to Execute the Five-Year General Services Agreement with Aramark Uniform Service for Citywide Uniform, Mat, and Linen Services for the not-to- exceed amount of $240,916.30 (Staff Contact: Chris Schroeder, Purchasing Agent, 408-586-3161) Finance Director Lai and Purchasing Agent Schroeder responded to questions from City Council.
Vice Mayor Montano emphasized the importance of using environmentally sustainable products and suggested bringing a resolution forward for the City to use only biodegradable products.
Motion: to postpone until next regular City Council meeting on September 20, 2022.
Motion/Second: Vice Mayor Montano / Mayor Tran
Motion carried by the following:
AYES: Councilmembers Chua, Dominguez, Phan, Vice Mayor Montano, Mayor Tran NOES: None
C13. Approve and Authorize the City Manager to Execute Amendment No. 2 to the Professional Services Agreement with WeHOPE for Mobile Shower, Laundry, and Case Management Services through January 15, 2023 for a Total Contract Amount of Not to Exceed $86,552.00 (Staff Contact: Alex Andrade, Director of Economic Development, 408-586-3046, and Robert Musallam, Housing and Neighborhood Services Administrator, 4089-586-3275) Staff was available to respond to questions from Council.
There was no public comment.
Motion: to approve and authorize the City Manager to execute Amendment No. 2 to the Professional Services Agreement with WeHOPE for Mobile Shower, Laundry, and Case Management Services through January 15, 2023, in the amount of $15,000.00, for a total not to exceed contract amount of $86,552.00.
Motion/Second: Councilmember Phan / Councilmember Dominguez Motion carried by the following:
AYES: Councilmembers Chua, Dominguez, Phan, Vice Mayor Montano, Mayor Tran NOES: None
ADJOURNMENT
Mayor Tran adjourned the meeting at 10:13 PM.
Draft meeting minutes submitted by Acting City Clerk, Suzanne Guzzetta
15 Item # C2.
TENTATIVE CITY COUNCIL AGENDA ITEM LIST
as of 09/14/2022
October 4, 2022 – 1st Tuesday
CLOSED SESSION
INVOCATION (assigned to Councilmember Chua)
PRESENTATION
Fire Prevention Week (Proclamation)
Indigenous Peoples' Day (Proclamation)
Hindu American Awareness and Appreciation Month (Proclamation)
CONSENT CALENDAR
1. Receive City Council calendar for October 2022 (City Clerk)
2. Approve City Council Meeting minutes of September 20, 2022 (City Clerk)
3. Preview list of items for October 18, 2022 (City Clerk)
4. Councilmember Request List (City Clerk)
5. Reconfirm Findings and Determinations Under Resolution No. 9156 and Set Forth in Assembly Bill 361 for the Continuation of Virtual Meetings of the City Council and Legislative Bodies (Michael Mutalipassi)
6. 2nd Reading of Zoning Ordinance Amendment related to Maximum Building Heights (Ned Thomas)
7. Real Estate Broker Agreement (Alex Andrade)
8. Bi-Annual Concrete Sidewalk Replacement award of contract (Roger Lee)
9. REAP Grant (Alex Andrade)
PUBLIC HEARING
COMMUNITY DEVELOPMENT
COMMUNITY SERVICES
PUBLIC SAFETY
10. Crossing Guard Alternative Service Delivery Model (Jared Hernandez)
LEADERSHIP
11. ARPA Quarterly Update (Lauren Lai)
REPORTS
16 Item # C3.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
1 Schedule an additional ADU workshop Chua 9/6/2022
2 Waiver for the Halloween Event sponsored by
Sunnyhills Neighborhood Association Dominguez 9/6/2022
Scheduled to be heard at 9/20/22 City
Council meeting
3 City Attorney investigate moving the City Clerk’s
office into a direct report to the City Council. Chua 8/16/2022 The City Attorney issued a memorandum to
the City Council on August 30, 2022.
4 City Manager or Deputy City Manager to look into
underutilized areas of parks or a portion of parks not
being used and develop for use in the future. Chua 8/16/2022 Item will be brought forward as part of the
next City Council additional workplan items
prioritization in December/January
5 Discuss converting vacant lot that was a basketball
court into a community garden at Vasona and
Adobe Montano 8/16/2022
Item will be brought forward as part of the
next City Council additional workplan items
prioritization in December/January
6 City Manager look into implementing a workshop for
small businesses on the bidding process for
projects in the city Chua 8/9/2022
Item will be brought forward as part of the
next City Council additional workplan items
prioritization in December/January
7 Memory bench at Sunny Hills Park for one of the
founders, Dave Vohlberg, and to explore other
historical plaques or benches to remember our
history Tran 8/9/2022
Item will be brought forward as part of the
next City Council additional workplan items
prioritization in December/January
8 Review of the Milpitas Chamber of Commerce
previously approved request for funding including a
financial report dating back 12 months and the
workplan for the Art & Wine Festival Tran 8/9/2022
Staff is working with the Chamber to obtain
the requested documentation
9 City Staff apply for the "Better Cities for Pets"
Certification Tran 6/21/2022
This item did not move forward as part of the
next City Council additional workplan items
prioritization in August/September
10 Quarterly or Monthly crime statistics on Homekey
Project Chua 6/7/2022
PD will present quarterly reports starting in
November 2022.
11 Funding to hire a consultant for the Sunnyhills
Historical Designation on a state level Tran 6/7/2022
Request will be included with the Historic
Resources Master Plan project approved as
part of the 2023-2027 Capital Improvement
Program.
12 Local Boy Scouts Fee Waiver for Eagle Scout
Ceremony Tran 6/7/2022
Through the sponsorship of the Milpitas
Rotary Club the Boy Scouts received the
resident rental rates; however, the Rotary
Club did not sponsor the Boy Scouts for a fee
waiver request.
13 Requested the City create a youth scholarship fund
for under privileged kids to
play sports Montano 5/17/2022
As part of the adoption of the FY 2022-23
Budget, the City Council allocated $20,000
for this program. Staff presented a draft
Council Policy for this program on September
6, 2022 and will return with an updated Policy
based on Council discussion in October
2022.
14 Explore the use of roundabouts as a traffic calming
mechanism Dominguez 4/19/2022
This item did not move forward as part of the
next City Council additional workplan items
prioritization in August/September
NOTE: Deferred and Completed Items are not listed17
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
15 Consider policies to regulate automated equipment
that would replace a position typically filled by an
employee. Phan 4/19/2022
This item did not move forward as part of the
next City Council additional workplan items
prioritization in August/September
16 Request for Crossing Guards at McCandless and
Montague Expressway and review wages for
Crossing Guards Montano 4/5/2022
Per the Information Memorandum issued on
June 13, the City will perform school aged
pedestrian counts around schools in the City
including the McCandless and Montague
Expressway intersection at the beginning of
the 2022-23 school year and report the
findings to the Transportation Subcommittee
late fall.
17 Host a Town Hall at City Hall in January, February,
and March for the community to share comments
about the issue of the unhoused. Tran 11/2/2021
This item was postponed by Mayor Tran due
to the Omicron variant and a rise in COVID-
19 cases
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
18 Establish a SPAR fund modelled after the City of
Mountain View - sets asides moneys for
opportunities to buy real estate Montano 6/7/2022
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
19 Memorial Plaque in honor of youth skateboarder
that passed away Montano 6/7/2022
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
20 Prepare Vision Zero Action Plan Tran 6/7/2022
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
21 Explore the policy for locking mechanisms on
shopping carts for large commercial businesses Tran 4/19/2022 Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
22 Explore an ordinance or policy to reduce thefts and
increase security in the commercial retail parking
areas Chua 4/5/2022
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward during Summer
Quarterly City Council Workplan Items
Prioritization Discussion on 9/06/2022
23 Create a plan for future solar paneling at City
facilities Montano 3/1/2022
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward at the 5/03/2022
meeting; Discussed at the May 10 budget
meeting and approved funding of $25,000 in
the 2022-23 budget
ACTIVE ITEMS
NOTE: Deferred and Completed Items are not listed18
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
24 Requested the City Attorney’s office explore
encampment ordinances form the City of Oakland,
Los Angeles, or other regional cities and would like
a discussion on the existing policies to be brought
back before the July recess. Tran 2/15/2022
4/19/2022 direct the City Attorney to make the
recommended changes to the Municipal
Code to remove and prohibit property in
public. The first reading of the ordinance was
approved at the Sept. 6, 2022 City Council
meeting.
25 Evaluate reopening the childcare center with a non-
profit organization running the center Montano 2/1/2022 Approved during Spring Quarterly City
Council Workplan Items Prioritization
Discussion on 5/03/2022.
26 Requested an appropriation in an amount not to
exceed $250,000 to procure a contract to address
the streetlights that are pending fieldwork. Tran 2/1/2022 At this time, staff has sufficient Council
approved resources to address the remaining
streetlight outages; however, will bring
relevant actions for Council consideration, if
needed.
27 Explore a lease for the vacant land adjacent to the
Library for City use Tran 1/18/2022
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward at the 5/03/2022
meeting;
28 Staff to look into mural Art on Great Mall Parkway
on the VTA owned Light rail pillars Montano 11/16/2021
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved at the 5/03/2022 meeting;
discussed funding at the 5/10/2022 budget
meeting and approved $100,000 of funding
for one site
29 Request for the City to make the temporary third-
party food deliver fee caps permanent and add
additional provisions for enforcement Phan 11/16/2021
Discussed at Spring Quarterly City Council
Workplan Items Prioritization Discussion;
Approved to move forward at the 5/03/2022
meeting
30 Have a picture of Albert Vogel Sr. put up in the
Senior Center Montano 10/19/2021
Approved to move forward at the 1/11/2022
Council meeting; Staff engaged the artist of
the existing mural regarding this Council
approved item.
31 Requested the City extend the outdoor dining
options through March of next year Phan 9/21/2021
Planning Director to provide information on
current outdoor dining extension
32 Partner with the Rotary Club of Silicon Andhra to
promote the stem cell donor outreach with a
webinar and campaign to help increase the number
of donors Chua 8/17/2021
Staff will include the stem cell donor
information in regularly scheduled wellness
event
33 Include a bust of Maria Lemire on the Mural in front of the Senior Center Montano 8/17/2021
Approved to move forward at the 1/11/2022
Council meeting; Staff engaged the artist of
the existing mural regarding this Council
approved item.
34 Look into opening up the Senior Center on
Saturdays for half a day Chua 8/5/2021
This three-month pilot was kicked off on
Saturday Sept. 10.
35 Look into bringing back a roller rink Montano 8/5/2021 Approved to move forward at the 1/11/2022
Council meeting. Funding for the program will
need to be prioritized through the FY 22-23
budget process; Discussed at 5/10/2022
budget meeting and approved $100,000
funding for a two-day event in 2023
36 Staff to create a plan on how to increase the
number of local businesses doing business with the
City Chua 4/6/2021
At 8/9/2021 Council meeting, Council voted
that this item may have to come back for
additional discussion because there may be
some legal considerations.
NOTE: Deferred and Completed Items are not listed19
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
37 Staff to provide information on a landmark policy for the City of Milpitas Tran 3/16/2021
8/09/2021 Council voted 5-0 to move this
item forward; this item will be included for
funding consideration in the development of
the FY 2023-27 CIP for assessment of
historical and cultural resources and
development of landmark policy; The funding
for the assessment of historical and cultural
resources and development of a landmark
policy will be included in the 2023-2027
Capital Improvement Program scheduled for
adoption on May 3, 2022. This project will be
scheduled to begin in FY 2022-23.
38 Amendment to the existing ordinance for third-party
food delivery vendor services to prohibit regulatory
response fees Phan 2/16/2021
Agendized for discussion on 3/16/2021,
deferred to 4/06/2021; CC direction for City
Attorney to prepare a report; At the
11/12/2021 Transportation Subcommittee,
the Subcommittee directed to bring back this
request to Council as part of the FY 2022-23
budget process.
39 Requested that staff study the placement of a City
sign for the Milpitas Police Department and explore
the cost of a new sign Dominguez 1/18/2021
Staff has been working on upgrading signage
and landscaping around the Police
Department and Public Works Building. Lit-
up signs mounted on the building are
scheduled to be installed by the end of
December 2022
40 Ordinance to ban vaping in the City Montano 12/15/2020 Ordinance regarding a ban on use in certain
areas adopted by Council on 6/15/2021.
Council received a follow-up presentation
from staff on 6/21/22 and provided direction
on establishing a local tobacco retail
permitting program and regulating tobacco
retail locations and the sale of flavored
tobacco and electronic cigarette products in
Milpitas. Staff is now coordinating with the
Santa Clara County Department of
Environmental Health (DEH) to set up the
program, and those arrangement will be
brought back to the Council in early 2023.
41 Review City policy on speed bumps Tran 12/15/2020
Presented to Transportation
Subcommittee on 02/12/2021;voted on
3/16/2021 to revisit this item; On April 8, 2022
the Transportation Subcommittee Meeting
provided input on a draft policy to be brought
forward for Council consideration in Fall 2022
42 Consider Community Museum and Park on Main St. Phan 8/20/2019 to Rules Subcommittee 8/23/2019. Moved to
Specific Plan Community Conversation
events.
NOTE: Deferred and Completed Items are not listed20
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
City to highlight mental health resources on the
website Dominguez 8/17/2021
Staff issued an Information Memorandum on
August 1, 2022
Look into allowing outdoor music and would like the
ordinance brought back to Council. Montano 8/5/2021
Approved to move forward at the 1/11/2022
Council meeting; scheduled for 8/9/22 City
Council Meeting
Requested that the City have mini-libraries in the
low-income areas of the City. Montano 4/20/2021
8/09/2021 Council voted 3-1-1 to move this
item forward, staff to follow up with Vice
Mayor Montano on specific vision. Staff met
with the Vice Mayor. The City will continue to
facilitate libraries as needed but will not take
a lead role in funding or operating them.
Consider change in term limits for Mayor +
Councilmembers Montano 6/16/2020
8/4/2020: Voted 3 -2 to pursue; 2/02/2021 to
agendize for a future meeting; 3/16/2021
voted 3-1-1 to move forward. Scheduled for
3/15/2022; rescheduled for 4/05/2022;
4/05/2022 could gave direction to move
forward with Councilmember term limits and
discuss the Mayoral seat at a later date;
Discussed at the 5/10/2022 budget meeting
and had a consensus not want to move
foward with a ballot measure for the Mayor
term limit; Councilmember term limits
scheduled for June 7; Scheduled for June 21
meeting; Ballot Measure to appear on
November 8, 2022 General Municipal
Election
Prepare a report on ghost guns; engage in
legislative advocacy regarding ghost guns; and
incentivize ghost gun buybacks at the May buyback
event
Dominguez;
Tran 4/5/2022
Staff issued an Information Memorandum on
August 12, 2022. At the gun buyback event
held on May 22, 2022, ghost guns were
bought back for $200 vs. handguns and rifles
for $100.
Staff provide and explain the Project Homekey
Management Manual, see if the MOU is being
followed including forming an oversight committee,
and explore with County to have check-ins of the
units. Dominguez indicated it could be included in
Council Member Chua's recommendation. Mayor
requested to include County in discussion. Dominguez 6/7/2022 Item will be agendized for the August 16 City
Council meeting including the crime data
related to the Homekey Project
Waive fees for family fundraiser at Milpitas Skate
Park Dominguez 6/14/2022
Staff facilitated the renting of requested City
facilities; however, the applicant was not
eligible for receiving a fee waiver.
Agendize a Flag Raising for India Independence
Day Tran 6/14/2022 Item added to 6/21/22 Consent Calendar Letter from City Council opposing AB 2181
(Berman) regarding VTA's Board Composition Tran 6/7/2022 Per the email sent to Council on 6/17/2022,
consistent with the Council approved
Legislative Advocacy Policy, Mayor Tran
signed a letter opposing the legislation unless
amended.
NOTE: Deferred and Completed Items are not listed21
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Explore increasing the
Conferences/Meetings/Memberships allowance for
each Councilmember to $10,000 Chua 5/17/2022
On 6/07/22, City Council did not approve
increasing the allowance as part of the
adoption of the FY 2022-23 Budget; however,
Council provided direction to review funding
need as part of the FY 2022-23 mid-year
budget review.
Science, Technology, and Innovation Commission
agendize and explore a comprehensive internet
connectivity plan. Tran 5/3/2022
Item will be agendized for discussion at June
STI Commission meeting
Consider funding to implement and create a
homelessness encampment response team to be
dispatched to encampment sites to address
concerns, talked about creating a position to provide
mental health assistance, and would like this to be
brought back for discussion at the budget meeting Dominguez 3/15/2022 Direction from Council to bring forward as
part of FY 22-23 budget discussion; at the
May 10 Budget Study Session Council did not
direct to do any further work on this item.
Consider expanding the Fee Waiver Policy eligibility
to non-profit organizations outside of Milpitas but
the events are specific to Milpitas residents Chua 3/15/2022 Council approved the policy revision at the
June 21, 2022 City Council meeting
Designate the California Oak Tree as the City’s
official heritage tree Montano 2/1/2022 Council approved at the 6/7/2022 meeting.
Host a Town Hall at City Hall in January, February,
and March for the community to share comments
about the issue of the unhoused. Tran 11/2/2021
This item was postponed by Mayor Tran due
to the Omicron variant and a rise in COVID-
19 cases
Bring back a conversation in the budget meeting to
fund “walking beats” in the commercial and high
crime areas Dominguez 4/5/2022
At the 4/5/2022 City Council meeting, this
item was discussed and there was direction
from Councilmember Dominguez to work with
the City Manager to find funding sources
Fee waiver for the Filipino American South Bay
Community to hold pop-up resource fair at a City
Park Dominguez 3/1/2022
Staff engaged organizers of the event; event
was held on June 19; organizers did not
request a fee waiver
Agendize an update to the Lobbyist Ordinance for
the next meeting Chua 3/1/2022
Discussed at 3/15 City Council Meeting; At
the 3/15/2022 Council Meeting, City Attorney
was directed to bring back a proposed
ordinance amendment for further discussion;
Council approved the ordinance on 6/7/2022
Requested an agenda item on November 2 Council
meeting allowing the Council to rescind direction
given to 1355 California Circle and include direction
to allow the project application to move forward
without being tied to a specific plan Chua 10/19/2021
At the 1/18/2022 council meeting, Council
voted 4-1 to rescind the direction and direct
staff and the application to explore option one
in the presentation to amend the General
Plan and remove Council policy for the
preparation of a Specific Plan
Requested staff work with the Vice Mayor and
Mayor to explore and discuss building height limits
near the hillside by January 2022 Tran 9/21/2021
Approved to move forward at the 1/11/2022
Council meeting; l scheduled for 6/21/2022
NOTE: Deferred and Completed Items are not listed22
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Work with the school district to have a contest to
create art murals for the pillars on Main Street Montano 9/7/2021 Approved to move forward at the 1/11/2022
Council meeting; funding allocated to Great
Mall Pkwy. VTA pillar murals
Look into how the City can be a resource for small
businesses to help guide them on what to do in
terms of ADA (Americans with Disabilities Act)
requirements due to the quick changes made to
facilities during the pandemic Chua 8/5/2021
SVEDA/SV Joint Venture hosted the “SV
Small Businesses & ADA Compliance”
webinar on 11/3/21. Several Milpitas
business reps, & staff from Econ. Dev. &
Building participated. Staff met with reps from
CA Comm. on Disability Access to discuss
business education & outreach.
Discussion in the next fiscal year, to have a sliding
scale permitting program for seniors and low-
income residence for necessary safety renovations Tran 5/4/2021 8/09/2021 Council voted 5-0 to move this
item forward and modify the existing Milpitas
Assistance program to include seniors; Staff
will bring this item for funding consideration
as part of the FY 2022-23 budget process
Discussion to reduce the City’s Senior Center
facilities deposit Montano 5/4/2021
8/09/2021 Council voted 5-0 to refer this item
as part of the development of the FY 2022-23
Master Fee Schedule; Council approved the
item on 4/19/22 as part of the Master Fee
Schedule
Staff to look into creating a rose garden with a
children’s memorial site Montano 4/6/2021
8/09/2021 Council voted 4-1 to discuss
details with Vice Mayor Montano and refer
this item as part of the development of the
2023-2027 CIP; The funding for this project
will be included in the 2023-2027 Capital
Improvement Program scheduled for
adoption on May 3, 2022. Discussed at the
May 3 meeting funding was reallocated to the
Softball Field project
Staff to look into creating “Welcome to Milpitas”
signs in key areas of in the City Montano 4/6/2021
8/09/2021 Council voted 5-0 to move this
item forward and Council provided direction
that the signs should align with the efforts
currently underway with the Metro Plan and
Main Street Gateway Specific Plan process
and work with private development. Staff was
directed to work with Vice Mayor on additional
clarification. In November, Vice Mayor
Montano noted a preference for a location on
South Main Street. This project will be added
to unfunded project list of the 2023-2027 CIP
to allow time for staff to research potential
grant funding and outreach to local business
and service clubs.
NOTE: Deferred and Completed Items are not listed23
Item # C4.
MILPITAS CITY COUNCIL
AGENDA ITEM REQUESTS
Staff to provide information to place a measure on
the ballot to change the directly elected Mayor to a
rotational at-large position Tran 3/16/2021
To be brought forward in Spring of 2022,
once new City Attorney is in place; scheduled
for 3/15/2022; rescheduled for 4/05/2022;
discussed at the May 10 budget meeting and
had a consensus that they did not want to
move forward with a Mayoral ballot measure
NOTE: Deferred and Completed Items are not listed24
Item # C4.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Updating the Conflict of Interest Code in 2022 and Amending List of Designated Disclosure Positions for the City of Milpitas (Staff Contact:
Suzanne Guzzetta, Acting City Clerk, 408-586-3001 and Michael Mutalipassi, City Attorney, 408-586-3041)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/20/2022
Recommendation: Adopt a resolution updating the 2022 City of Milpitas Conflict of Interest Code, including the list of designated positions required to annually file the FPPC Form 700 Statement of Economic Interests.
Background:
The Political Reform Act (Government Code § 81000, et seq.) requires that state and local agencies adopt conflict of interest codes identifying all officials and employees within the agency who make governmental decisions based on the positions they hold. Individuals in those designated positions are obligated to disclose their financial interests as specified in the agency’s conflict of interest code.
The City of Milpitas is required to review its Conflict of Interest Code biennially in even years to determine if amendments to the Code are necessary. Amendments include adding newly created qualifying positions, deleting obsolete positions, and revising job titles of existing positions and disclosure categories.
The City’s Conflict of Interest Code was last amended on December 15, 2020 as memorialized in City Council Resolution No. 9027. Together with the City Attorney, the Acting City Clerk reviewed the existing code and list of designated positions to make applicable amendments to the Code.
Filers with job titles specified as designated positions are required to file the FPPC Form 700, Statement of Economic Interests, with the City Clerk within thirty days of assuming their designated position, annually by April 1st, and within thirty days of leaving their designated position. In addition, Government Code § 87200 identifies certain City officers such as mayors, city managers, city attorneys, city treasurers, chief administrative officers, members of city councils of cities, and planning commissioners as statutory filers required to file the Form 700.
Since January 2020, all City filers have the option to file their Form 700 through either one of two methods. The first method is to submit an original or “wet signature” hard copy form to the City Clerk’s Office. The second method is to file electronically via Netfile – an online platform approved by the Secretary of State for accepting electronic filings of Statements of Economic Interests.
Analysis:
The City Attorney and City Clerk have identified the appropriate City of Milpitas employee classifications to be added to the 2022 City of Milpitas Conflict of Interest Code and Appendix and appear in redline form as attached. Newly created qualifying classifications have been added, obsolete positions removed, and titles of several positions amended. The list of designated positions additionally includes Council-appointed volunteer Commissioners and Alternate Members of seven City Commissions.
It is recommended the City Council adopt a resolution approving the updated 2022 City of Milpitas Conflict of Interest Code and Appendix. Upon adoption of the resolution, the City Clerk will file a copy of the updated Code and list of filers with the Fair Political Practices Commission office in Sacramento by the end of the year.
25 Item # C5.
Policy Alternative:
Alternative: Not to adopt a resolution updating the list of designated positions required to file the FPPC Form 700 Statement of Economic Interests
Pros: None
Cons: By not adopting the resolution, the City of Milpitas Conflict of Interest Code would be out of date, resulting in the City being out of compliance with state law.
Reason not recommended: Failure to adopt a resolution to update the City of Milpitas Conflict of Interest Code will result in having an outdated Conflict of Interest Code and the City will be out of compliance with FPPC Regulations.
Fiscal Impact:
None
California Environmental Quality Act:
Not applicable
Recommendation:
Adopt a resolution updating the 2022 City of Milpitas Conflict of Interest Code, including the list of designated positions required to annually file the FPPC Form 700 Statement of Economic Interests.
Attachments:
a) Resolution
b) Exhibit: 2022 City of Milpitas Conflict of Interest Code with Appendix
26 Item # C5.
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS AMENDING THE CITY OF
MILPITAS CONFLICT OF INTEREST CODE, AS REQUIRED BY THE POLITICAL REFORM ACT
WHEREAS, the State of California enacted the Political Reform Act of 1974, Government Code Section 81000 et seq. (the “Act”), which contains provisions relating to conflicts of interest which partially affect all officers, employees and consultants of the City and requires all public agencies to adopt and promulgate a Conflict of Interest Code; and
WHEREAS, on August 4, 1992, the Milpitas City Council adopted a Conflict of Interest Code (the “Code”) by Resolution No. 6114, which was last amended on December 15, 2020 by Resolution No. 9027, in compliance with the Act; and
WHEREAS, subsequent changed circumstances within the City have made it advisable and necessary pursuant to Sections 87306 and 87307 of the Act to amend and update the City’s Conflict of Interest Code; and
WHEREAS, the potential penalties f or violation of the provisions of the Act are substantial and may include criminal and civil liability, as well as equitable relief which could result in the City being restrained or prevented from acting in cases where the provisions of the Act may have been violated; and
WHEREAS, notice of the time and place of a public meeting on, and of consideration by the City Council of the proposed amended Code was provided each affected designated position and publicly posted for review at the City Clerk’s office and on the City of Milpitas website; and
WHEREAS, a public meeting was held upon the proposed Amended Code at a regular meeting of the City Council on September 20, 2022, at which all present were given an opportunity to be heard on the proposed amended Code.
NOW THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:
1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
2. The City Council does hereby adopt the proposed amended Conflict of Interest Code, a copy of which is attached hereto as Exhibit A and shall be on file with the City Clerk and available to the public for inspection and copying.
3. The amended Conflict of Interest Code of the City of Milpitas shall become effective at the time of its adoption and approval.
PASSED AND ADOPTED this 20th day of September 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
Suzanne Guzzetta, Acting City Clerk Rich Tran, Mayor
APPROVED AS TO FORM:
Michael Mutalipassi, City Attorney 27
Item # C5.
2 Resolution No.
EXHIBIT A
28 Item # C5.
EXHIBIT A to
Resolution No.____
CONFLICT OF INTEREST CODE
OF THE
CITY OF MILPITAS
California’s Political Reform Act (Government Code section 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation that contains the terms of a standard conflict of interest code which can be incorporated by reference in an agency’s code.
After public notice and hearing Section 18730 may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference. This regulation and the attached Appendix [or Appendices], designating positions and establishing disclosure categories, shall constitute the conflict of interest code of the City of Milpitas (City).
All officials and designated positions are required to submit a statement of economic interests and shall file their statements with the City Clerk as the City’s Filing Officer. The City Clerk shall make and retain a copy of all original statements filed by the Mayor, City Councilmembers and Planning Commissioners, the City Manager, City Attorney and City Treasurer, and shall forward the originals of paper filed original statements to the Fair Political Practices Commission, as required by Government Code section 87200. The City Clerk shall retain the original statements filed by all other officials and designated positions and will make all retained statements available for public inspection and reproduction during regular business hours, per Government Code section 81008. Beginning in the filing year 2020, the City Clerk is authorized to permit electronic filing of Statements of Economic Interest, using an electronic filing system authorized by the Fair Political Practices Commission.
Adopted by Milpitas City Council on _______, 2022
29 Item # C5.
City of Milpitas Conflict of Interest Code Adopted ____________
APPENDIX
CONFLICT OF INTEREST CODE
OF THE CITY OF MILPITAS
Adopted __________, 2022
PART A
The phrase “Section 87200 Filer” means each person holding one of the positions defined by California Government Code Section 87200, including each of the following positions:
a. Mayor
b. City Councilmember
c. Planning Commissioner
d. City Manager
e. City Attorney
f. City Treasurer (Director of Finance)
g. Any City official who manages public investments
Those holding one of the positions above may contact the Fair Political Practices Commission for assistance or written advice regarding their filing obligation if they believe their position has been categorized incorrectly. The Fair Political Practices Commission makes the final determination as to whether a position is a required filer consistent with Section 87200.
30 Item # C5.
City of Milpitas Conflict of Interest Code Adopted ____________
DESIGNATED POSITIONS GOVERNED BY THE CONFLICT OF
INTEREST CODE
The term “designated position” means any position with the City that is either: (a) identified in this Exhibit “A”; or (b) involves the making or participation in making of governmental decisions which may foreseeably have a material effect on economic interests.
Each of the following positions shall be deemed a Designated Position:
DESIGNATED POSITIONS DISCLOSURE CATEGORIES
Administrative Analyst II 5
Assistant City Attorney 1, 2
Assistant City Engineer 2, 3, 5
Assistant City Manager 1, 2
Assistant Finance Director 1, 2
Assistant Fire Marshal 2, 3
Assistant Chief of Police 5
Associate Civil Engineer 2, 3, 5
Associate Planner 2, 3, 5, 6
Budget Manager 4
Building Inspection Manager 2, 3, 5, 6
Building Safety and Housing Director 1, 2
Building/Neighborhood Preservation Inspector 2, 3, 5, 6 Building Official 2, 3, 5, 6
Business Systems Analyst/Dev 5
Buyer 4
Capital Improvement Projects Manager 2, 3, 5, 6
City Clerk 5, 6
Community Services Engagement & Inclusion
Administrator
1, 2,7
Deputy City Attorney 1, 2
Deputy City Clerk 5, 6
Deputy City Manager 1, 2
Deputy Director of Information Technology 5
Deputy Fire Chief 5
Deputy Public Works Director 1, 2
Economic Development Director 1, 2
Employee Relations Officer 5
Engineering Director/City Engineer 1, 2
Fire Battalion Chief 5
Fire Chief 5, 6
Fire Captain, Prevention/Hazmat Inspector 3, 6
Fire Marshal 2, 3, 5, 6
31 Item # C5.
City of Milpitas Conflict of Interest Code Adopted ____________
Housing & Neighborhood Services Administrator 1, 2, 7
Human Resources Director 5
Information Technology Director 5
Information Technology Manager 5
Plan Review Manager 5
Plan Check Engineer 5
Plan Checker 5
Planning Director 1, 2
Planning Manager 2, 3, 5
Police Captain 5
Police Chief 5
Principal Civil Engineer 1, 2
Principal Planner 1, 2
Public Information Officer 5
Public Works Manager 1, 2
Public Works Director 1, 2
Public Works Inspector 6
Purchasing Manager 4
Recreation and Community Services Director 5
Recreation Services Supervisor 5
Senior Administrative Analyst 5
Senior Accountant 4
Senior Building Inspector 5, 6
Senior Buyer 4
Senior Code Enforcement Officer 6
Senior Human Resources Analyst 5
Senior Plan Check Engineer 5
Senior Planner 1, 2
Senior Public Works Inspector 2, 5, 6
Transportation and Traffic Engineer 2, 3, 5
CITY OF MILPITAS COMMISSIONS
Arts Commission 5, 7
Community Advisory Commission 1, 2
Economic Development & Trade Commission 1, 2
Energy and Environmental Sustainability
Commission
1, 2
Parks, Recreation & Cultural Resources
Commission
1, 2
Science, Technology & Innovation Commission 1, 2
CONSULTANTS and NEW POSITIONS
32 Item # C5.
City of Milpitas Conflict of Interest Code Adopted ____________ Individuals serving as a consultant as defined in FPPC Regulation 18700.3 or in a new position as defined in Regulation 18734 created since this Code was last approved who make, or participate in making, decisions must file under the broadest disclosure category set forth in this Code, subject to the following limitation: The City Manager may determine, that due to the range of duties or contractual obligations, it is more appropriate to assign a limited disclosure requirement. A clear explanation of the duties and a statement of the extent of the disclosure requirements must be a written document (Gov. Code § FPPC Regulations 18219 and 18734). The City Manager’s determination is a public record and shall be retained for public inspection in the same manner and location as this Conflict of Interest Code (Gov. Code §81008).
33 Item # C5.
City of Milpitas Conflict of Interest Code Adopted ____________
PART B - DISCLOSURE CATEGORIES
Disclosure categories identify the types of economic interests that the designated position must disclose for each disclosure category to which he or she is assigned. “Investment” means financial interest in any business entity (including a consulting busi ness or other independent contracting business) and are reportable if they are either located in, doing business in, planning to do business in, or have done business in during the previous two years in the jurisdiction of the City of Milpitas.
This Conflict of Interest Code does not require the reporting of gifts from outside this City’s jurisdiction if the source does not have some connection with or bearing upon the functions or duties of the position, per FPPC Regulation 18730.1.
Following is the list of seven disclosure categories, defined:
Category 1: all investments and business positions in business entities, and sources of income, including gifts, loans and travel payments, that are located in, doing business in, or that own real property within the City of Milpitas.
Category 2: all interests in real property which is located in whole or in part within, or not more than two miles outside the boundaries of the City of Milpitas , including any leasehold, beneficial or ownership interest or option to acquire property.
Category 3: all investments and business positions in business entities, and sources of income, including gifts, loans and travel payments, that are engaged in land development, construction or the acquisition or sale of real property within the jurisdiction of the City of Milpitas.
Category 4: all investments and business positions in business entities, and sources of income, including gifts, loans and travel payments that provide services, products, materials, machinery, vehicles or equipment of a type purchased or leased by the City of Milpitas.
Category 5: all investments and business positions in business entities, and sources of income, including gifts, loans and travel payments that provide services, products, materials, machinery, vehicles or equipment of a type purchased or leased by the designated positions’ department, unit or division.
Category 6: all investments and business positions in business entities, and sources of income, from, business entities subject to the regulatory, permit, or licensing authority of the designated positions’ department, unit or division.
Category 7: all investments and business positions in business entities, and sources of income, including gifts, loans and travel payments, and income from a nonprofit or other organization, if the source is of the type to receive grants or other monies from or through the City of Milpitas or its subdivisions.
34 Item # C5.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Accept the FY 2021-22 Commissioners Annual Report for Six (6) Commissions and Approve Six (6) Commission Work Plans for FY 2022-23 (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053; and Walter C. Rossmann, Deputy City Manager, 408-586-3012)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/20/2022
Recommendation:
1. Accept the FY 2021-22 Commissioners Annual Report
2. Approve proposed FY 2022-23 Work Plans for:
a. Arts Commission
b. Library and Education Commission
c. Parks, Recreation and Cultural Resources Commission
d. Senior Advisory Commission
e. Veterans Commission
f. Youth Advisory Commission
BACKGROUND:
The City of Milpitas has 12 Commissions, including the Measure F Oversight Committee, appointed by the Mayor and City Council. On April 16, 2019, the City Council approved the City of Milpitas Standard Commission By-Laws (By-Laws). Per Section 1, titled “Purpose” of the By-Laws, “A Commission serves as an active advisory group to the City Council on a variety of topics as directed by the City Council.” Therefore, annually, City Commissions develop and recommend a work plan to outline tasks, goals, and or projects related to their advisory area. Staff works with commissions to develop their respective workplans and takes them to Council for review and approval.
ANALYSIS:
The Arts Commission, Library and Education Commission, Parks, Recreation and Cultural Resources Commission, Senior Advisory Commission, Veterans Commission and Youth Advisory Commission (Commissions) meet at different frequencies such as monthly, bi-monthly, or specially designated months as determined by their By-Law addenda. Commissions began meeting and discussing their FY 2022-23 workplans and have prepared new work plans that may include items from the previous year’s plan that were unaccomplished. All Commissions identified work plan items in their FY 2021-22 work plans they would like to carry forward to their FY 2022-23 work plans. Each Commission reviewed tasks from their 2020-21 Work Plans and categorized them as either “Accomplished” or “Carryover.” Those tasks are reported in the Commissioners Annual Report Information Memorandum, which is included as an attachment for this item. Carryover tasks in the Annual Report are included in each Commission’s proposed 2022-23 Work Plans.
FISCAL IMPACT:
Each Commission is allocated $1,000 annually by the City Council in the adopted budget. These funds are budgeted and approved as part of the FY 2022-23 budget and are to be used towards City Council approved tasks and projects, and administrative costs related to the Commission. No Commission, with exception of the Arts Commission, has identified additional funds needed to accomplish their work plan. The Arts Commission work plan includes Public Art projects which are funded by the City of Milpitas’ Public Art Fund. The Public Art Fund current balance is $1,253,478. The Arts Commission will return separately to the City Council for public art project budget approval for those proposed projects.
California Environmental Quality Act (CEQA):
35 Item # C6.
By the definition provided in the California Environmental Quality Act (CEQA) Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA.
RECOMMENDATION:
1. Accept the 2021-22 Commissioners Annual Report
2. Approve proposed Fiscal Year 2022-23 Work Plans for:
a. Arts Commission
b. Library and Education Commission
c. Parks, Recreation and Cultural Resources Commission
d. Senior Advisory Commission
e. Veterans Commission
f. Youth Advisory Commission
Attachment(s):
1. 2021-22 Commissioners Annual Report
2. Arts Commission Work Plan
3. Library and Education Commission Work Plan
4. Parks, Recreation and Cultural Resources Commission Work Plan
5. Senior Advisory Commission Work Plan
6. Veterans Commission Work Plan
7. Youth Advisory Commission Work Plan
36 Item # C6.
Arts Commission FY 2022-23 Work Plan
Draft May 23, 2022
Topic/Advisory Area Tasks Required Resources Goal
Deadline
Public Art Master
Plan
Assist with outreach and development of Public Art Master Plan Consultant, Commission, Staff
Spring
2023
Placemaking through
Arts
Assist with ARPA-funded Art Walk event Commission Fall 2022 Work with staff and consultants to incorporate art placemaking opportunities into Main Street and Milpitas Metro development activities
Commission, staff Ongoing
Work with staff to incorporate art placemaking into selected City events Commission, staff Ongoing Public Art
Installations
Conduct Call for Artists for public art park historical markers, jointly with PRCRC ($TBD)
Commission, Staff Fall 2022
Select and Commission Artists for public art park historical markers, jointly with PRCRC
Commission, Staff Fall 2022
Conduct RFQ for Park Art (Sculpture, Functional, Etc.) Commission, Staff Fall 2022 Conduct Invitational Call for Dixon Landing Park artwork ($30,000) Commission, Staff Fall 2022 Support Mural Program Commission, Staff Ongoing
City Public Art
Collection
Following conservator evaluation, recommend maintenance schedule for City- owned public art.
Commission, Staff Spring
2023
Milpitas Arts
Support performing arts in Milpitas. Commission, Staff Ongoing Support Phantom Art Gallery exhibits. Commission, Staff
Ongoing
Promote public awareness of Milpitas Arts and Culture Grants to encourage applications for events. Review and approve up to in-kind value of $10,000.
Commission, Staff Ongoing
Arts-related
Collaborations
Explore opportunities for an art project in collaboration with Elmwood Correctional Facility
Commission Spring
2023
37 Item # C6.
MEMORANDUM
455 E. Calaveras Blvd., Milpitas, CA 95035 www.ci.milpitas.ca.gov Superior Customer Service Open Communication Integrity and Accountability Trust and Respect Recognition and Celebration
Office of the City Manager
DATE: September 15, 2022
TO: Mayor and Councilmembers
THROUGH: Steve McHarris, City Manager
FROM: Ashwini Kantak, Assistant City Manager
SUBJECT: City Commissions Annual Report FY 2021-22
This memo is to update and inform City Council on six (6) individual City Commission annual work plan accomplishments from FY 2021-22, and those tasks and goals that are proposed to carry over to the Commission work plans for FY2022-23.
Background
The City of Milpitas has 13 Commissions, each comprised of seven (7) commissioners and two (2) alternates; except for the Planning Commission which has no alternates, and the Parks, Recreation and Cultural Resources Commission which has nine (9) commissioners. Per the City of Milpitas Commission By-Laws Section 1., Purpose, “A Commission serves as an active advisory group to the City Council on a variety of topics as directed by the City Council.” Annually, City Commissions develop and recommend a work plan to accomplish tasks, goals, and or projects related to their advisory area. Those work plans are reviewed and approved by City Council.
Commissions meet at different frequencies such as monthly, bi-monthly, or specially designated months as determined by their By-Law addendums. Commissions began meeting and discussing their FY2022-23 workplans in summer 2022 and have prepared new work plans that include items from the previous year’s plan that were unaccomplished. The FY 2022-23 workplans for six (6) Commissions (see listing below) were released on Friday, September 16 as part of the September 20 Council meeting agenda packet.
Below please find six (6) Commissions’ accomplishments and proposed carryover items from FY2021-22 to the FY2022-23 work plan. The remaining six (6) Commissions will be reporting to City Council by the end of the calendar year.
38 Item # C6.
MEMORANDUM
455 E. Calaveras Blvd., Milpitas, CA 95035 www.ci.milpitas.ca.gov Superior Customer Service Open Communication Integrity and Accountability Trust and Respect Recognition and Celebration
Accomplishments and Continued Items
Arts Commission
The Arts Commission (AC) was established to advise Council on matters pertaining to the arts in Milpitas, as well as serve as the advisory body for the Public Art Program.
FY 2021-22 Work Plan Item Accomplished Carryover Notes
Milpitas Arts and Culture Grant
Program
X X Received application(s)
however events postponed
due to COVID.
Public Art Installations X X Installations are ongoing
projects. Delay with some
projects due to COVID-19
City Public Art Collection X X Funded through to the CIP Performing Arts Program X X Ongoing programming
Phantom Art Gallery X X Ongoing programming
39 Item # C6.
City Commissions Annual Report FY 2021-22
September 16, 2022
455 E. Calaveras Blvd., Milpitas, CA 95035 www.ci.milpitas.ca.gov Superior Customer Service Open Communication Integrity and Accountability Trust and Respect Recognition and Celebration
Library and Education Advisory Commission
The Library Advisory Commission (LAC) makes recommendations to the City Council on matters pertaining to the operation of library services and facilities in Milpitas.
FY 2021-22 Work Plan Item Accomplished Carryover Notes
County Commissions Forum X Commissioners attended
via Zoom in February
Special Projects (i.e., essay
contest)
X Youth Essay Writing
Contest was deferred to
FY22/23 due to logistics
complications
Attend Local Library Conference X California Public Library Advocates (CPLA)
suspended its annual
program due to COVID-19
National Library Week X
X
Ongoing. Commissioner’s
promoted virtual events
Summer Reading Program X
X
Ongoing. Commissioner’s
promoted Summer Reading
Program
City Events Volunteering
X
X “Go Go Biblio” participated
in Senior Center’s June
BBQ event per
Commissioner's
recommendation.
Library Donor Program X During FY21/22, The
Milpitas Library Donor Program
secured two major donations
from community members
Parks, Recreation and Cultural Resources Commission
The Parks, Recreation, and Cultural Resources Commission (PRCRC) advises the Council on operation and maintenance of recreation, leisure services, and historic preservation activities. The Commission also advises on acquisition, planning, and development of new and existing parks and facilities. It assists with identifying, protecting, and enhancing structures and other features reflecting special aspects of the City's cultural heritage.
FY 2021-22 Work Plan Item Accomplished Carryover Notes
Park Name History Project X Deferred due to COVID-19
Park and Recreation Master Plan
Review – Ongoing
X X Reviewed and
Recommended to City
Council
40 Item # C6.
City Commissions Annual Report FY 2021-22
September 16, 2022
455 E. Calaveras Blvd., Milpitas, CA 95035 www.ci.milpitas.ca.gov Superior Customer Service Open Communication Integrity and Accountability Trust and Respect Recognition and Celebration
Annual Park/Facility Tour X X Individually toured and
reported back to the
Commission
Historic Resource review X X Reviewed historic resources and looking to beginning the
new Historic resources
master plan project.
Community Bike to Anywhere
Event
X X Completed and will be
yearly
Family Bike Day Mini Event X X Completed and will be
yearly
New Park Project and CIP
Review
X X Reviewed and saw
some accomplished
areas
Sister cities support within the
community
X Most area
connections have
been put on hold
due to COVID-19.
Will look to pick up
relations this
upcoming year
Community Gardens Review –
ongoing
X X Reviewed and
Recommended to
City Council
Senior Advisory Commission
The Senior Advisory Commission (SAC) advises the City Council on matters pertaining to recreation, leisure, and nutrition services for the Senior Citizens of Milpitas.
FY 2021-22 Work Plan Item Accomplished Carryover Notes
Host Welcome Back event in Fall,
Open House Event and Resource
Fair
X Hosted Welcome
Back and Inter City
Resource Fair in
October. Hosted
Open House event in
May.
Promote the Senior Center
Resource Area, various
health & wellbeing
presentations, and social
services-related projects
throughout the year.
X X Commissioners promoted
the Senior Center’s
Resource Area to current
and prospective members.
Deferred projects to FY
22/23 include health and
well-being presentations
such as the Healthy Brain
Initiative Series.
41 Item # C6.
City Commissions Annual Report FY 2021-22
September 16, 2022
455 E. Calaveras Blvd., Milpitas, CA 95035 www.ci.milpitas.ca.gov Superior Customer Service Open Communication Integrity and Accountability Trust and Respect Recognition and Celebration
Support Technology for
Seniors Program that helps
bridge the digital divide and
counter social isolation.
X .
Commissioners promoted
the Google Home Speaker
donation distribution and the
Chromebook Loaner
program for seniors.
Sponsor Senior Center Events
and Activities
X Ongoing.
Support/Participate in
Age-Friendly initiatives
X Most County-led Seniors
Agenda Initiatives were
held virtually in FY21/22
Including the Dementia
Friends Program
Veterans Commission
The Veterans Commission (VC) consists of honorably discharged U.S. veterans or actively serving members in any branch of the U.S. military.
FY 2021-22 Work Plan Item Accomplished Carryover Notes
Serve as knowledge base for
Veterans/Local resources and
Assistance
X X Ongoing
Honoring Milpitas Veterans
Memorial Project
X Currently
working with
Public Works
staff for the
requirements of
the project.
Adopt-A-Vet X Deferred due to COVID-19.
Restructuring the program for
22/23.
Annual Veterans Recognition Lunch X Deferred due to COVID-19.
Scheduled to be held
11/12/22
Assist Milpitas Veterans in need
during the Holiday
Was not completed due to
Covid 19 restrictions and was
removed in 22-23 workplan
Assist with planning of Veterans
based City sponsored events
X Helped with Veterans Day
and Memorial Day Ongoing
annual item
42 Item # C6.
City Commissions Annual Report FY 2021-22
September 16, 2022
455 E. Calaveras Blvd., Milpitas, CA 95035 www.ci.milpitas.ca.gov Superior Customer Service Open Communication Integrity and Accountability Trust and Respect Recognition and Celebration
Youth Advisory Commission
The Youth Advisory Commission (YAC) was established to advise the Council on matters pertaining to youth and teens in Milpitas.
FY 2021-22 Work Plan Item Accomplished Carryover Notes
Identify events in need of service X X Ongoing
Establish Subcommittees X X
Ongoing
Holiday Magic – Event
Volunteering
X
Milk and Cookies with Santa X
Bike Repair Event X
Youth-Commission Advocacy X
Health and Mental Wellness X
Inter-Generational Programming
For Teens
X
Coding Competition X
Spelling Bee X
Youth Advisory Commission –
Service Scholarship
X
43 Item # C6.
Library and Education Advisory Commission FY 2022-2023 Work Plan
Work Plan Summary
Advise and make recommendations on Library operations Support greater awareness within the Milpitas community regarding library resources, literacy activities and amenities Partner to broaden and enhance literacy and education initiatives based out of the Milpitas Library Advise on support of diverse Library initiatives, programs and events
Topic/Advisory Area Tasks Required Resources Goal
Deadline
County Commissions Forum Attend County Commissions Forum and report back Commission, County Library
February
2023
Essay Contest/Special Projects
** April (Arts, Math and
Poetry focus)
Conduct Annual Youth Essay Contest – arrange judging and awards.
Dedicate up to $2,500 from LEAC account for participant awards
Special Projects: coordinate special projects including event preparation, marketing, etc.
Commission,
Community Partners,
City Staff
Fall 2022 or
Spring 2023
Attend Local Library
Conference
Attend local Library Conference to gain continued library knowledge Commission April 2023
National Library Week
Promote program citywide via City of Milpitas Youth Programs, Milpitas Senior Center, general public, etc.
Commission, County
Library
April 2023
Summer Reading Program Promote program citywide via City of Milpitas Youth Programs, Milpitas Senior Center, general public, etc.
Commission, County
Library, City Staff
May-August
2022/23
City Events Attend City Events and promote Literacy and Library Services Commission, City Staff FY 2022/23
Library Donor Program
Sustain current Donor Program
Commission, City Staff FY 2022/23
44 Item # C6.
Parks, Recreation and Cultural Resources Commission
Draft Work Plan FY 2022-23
DRAFT
Topic/Advisory Area Tasks Required Resources Deadline
Park Name History Project Phase II 1. Create online webpage (Comm & Dept.) Commission, Staff, Grants Jun-23
2. Cost out physical park markers Historical Society
3. Seek Grants/Identify Funding
4. Seek CC approval
5. Marker Development & Installation
Annual Park/Facility Tour 1. Determine theme for tour Commission , Staff Annually - June
2. Confirm location(s)
3. Conduct Tour
Quarterly Reports 1. Receive Quarterly Reports from Recreation Staff Quarterly Staff on: Community Garden, Program areas
Allocations, Recreation, Trends, CIP, Special
Events, Grants
Historic Resource Master Plan Update 1. Review recommendations and make Commission, Staff, Jun-23 recommendation to City Council County, Historical Society Bicycle & Pedestrian Trails 1. Family Bike Day Event Commission, Staff Jul-23
2. Bike repair clinics
3. Bike to Anywhere Day
Ongoing Review 1. Private Development Projects including Commission, Staff Ongoing/Per
project
open space
2. Make recommendation on Annual CIP Park
Improvement Projects & Priorities
Work Plan Goals:
Advise City Council on recreation, park, and historic preservation activities; review and recommend planning and development of new and existing parks and recreation facilities; recommend protecting and enhancing special aspects of the City's heritage 45 Item # C6.
Parks, Recreation and Cultural Resources Commission
Draft Work Plan FY 2022-23
DRAFT
Sister Cities 1. Outreach to community groups and schools Commission, Staff Spring 2023
2. Maintain existing relationships
3. Support currrent community relationships
Community Gardens 1. Review Garden Rules & Program as Needed Commission, Staff Ongoing
2. Make Recommendation on New McCandless
Park Site Program
3. Recommend any updates, changes
46 Item # C6.
Veterans Advisory Commission FY 2022-23 DRAFT Work Plan
Topic/Advisory Area Tasks Required Resources Goal Deadline Serve as Knowledge base for
Veterans/Local Resources and
Assistance by hosting a Resource
Fair in 2022/2023
Work with Veterans Service Office on all
events that are sponsored/co-sponsored by
the Commission. Maintain and update the
Veterans webpage for the City, to include
items such as: policies, burial benefits,
shelter, hospitals, programs, resources and
events.
Commission, Staff, Other Veteran
Agencies
FY 2022-2023
Assist with planning of Veteran
based City Sponsored Events
Work with City Staff to incorporate items to
the Annual Veterans Day and Memorial Day
ceremonies.
Commission, Staff FY 2022-2023
Event Calendar Dates
11/11/22 & 5/29/2023
Annual Veterans Recognition
Lunch
Work with City staff to host the Annual
Recognition Lunch, decide menu, decorations,
entertainment, speaker, fundraising and
recognition of the Veteran of the Year etc.
Commission, Staff Nov 2022
Say Hi to a Hero Work with Milpitas schools and the City of Milpitas Recreation and Community Services
after school programs to teach students on
how to properly raise and lower the flag:
provide education sessions for elementary age
students; work directly with the Milpitas High
School NJROTC on mentorship and
involvement with special events.
Commission, MUSD, Staff FY 2022-2023
Honoring Milpitas Veterans
Memorial
Work with Milpitas staff to research the
implementation of a permanent Memorial
honoring Milpitas Veterans in the form of
bricks in the Veteran s Plaza Area.
Commission, Staff FY 2022-2023
Veteran of the Year Work with the Milpitas community to nominate veterans for the Veteran of the
Year award
Commission FY 2022-2023
Locating Milpitas Veterans Work with City Staff to provide additional resources for locating Milpitas Veterans.
Commission, Staff FY 2022-2023
47 Item # C6.
City of Milpitas
Senior Advisory Commission FY 2022-2023 Work Plan
The Commission advises the City Council on matters pertaining to recreation, leisure, and nutrition services for the Senior Citizens of Milpitas.
Work Plan Summary
Establish Wellness & Resources action plan with a focus on senior’s health, wellness & mental wellbeing activities Establish Senior’s Events action plan with a focus on the annual Resource Fair and Open House Event Sponsor Senior Center-based events and support “Age-Friendly,” Milpitas HOPE and Seniors’ Agenda activities
Topic/Advisory Area Tasks Required Resources Goal
Deadline
During the year, host the Senior
Center’s annual Open House event
and Resource Fair
Determine event components needed, delegate tasks
equitably and assist staff with marketing and promotion ahead of the event’s date.
Commission, Community
Partners, City Staff
One month
prior to
event date
Promote the Senior Center Resource
Area, various health and wellbeing
presentations, and social services-
related projects throughout the year
including Milpitas HOPE activities
Assist the Social Services Coordinator in overseeing the Resource Area and helping promote its benefits to our
members.
Assist with the promotion of various social services-type projects such as Milpitas HOPE, Dementia Friends, etc.
Commission, Community
Partners,
City Staff
Ongoing
Support Technology for Seniors
program that helps bridge the digital
divide and counter social isolation
Help promote the program and its benefits to Milpitas
Seniors. Contribute $150 each college semester for two
semesters ($300 total) from Senior Advisory Commission
account for 1 college intern equivalent to lead the program and provide tech support to participants.
Commission, Community
Partners, City Staff
Ongoing
Sponsor Senior Center Events and
Activities
Sponsor and promote: Birthday Celebrations, Themed
Dances, Holiday Events, Multi-Cultural Events, etc.
Commission, City Staff Ongoing
Support/Participate in “Age-Friendly”
Initiatives
Promote and participate in Age-Friendly Initiatives and Santa Clara County Seniors’ Agenda activities.
Commission, Community
Partners, City Staff
Ongoing
48 Item # C6.
City of Milpitas
Senior Advisory Commission FY 2022-2023 Work Plan
The Commission advises the City Council on matters pertaining to recreation, leisure, and nutrition services for the Senior Citizens of Milpitas.
Work Plan Summary
Establish Wellness & Resources action plan with a focus on senior’s health, wellness & mental wellbeing activities Establish Senior’s Events action plan with a focus on the annual Resource Fair and Open House Event Sponsor Senior Center-based events and support “Age-Friendly,” Milpitas HOPE and Seniors’ Agenda activities
49 Item # C6.
Youth Advisory Commission
Work Plan FY 2022-2023
DRAFT
Work Plan Goals:
-Ensure community engagement by volunteerism -Ensure success of Teen Center participation with program promotion -Set up and execute at least four youth/teen events
Topic/Advisory Area Tasks Required Resources Deadline Volunteerism 1. Identify events in need of service (in addition to listed) Commission, Staff On Going
2. Establish Subcommittees Commission On Going
3. Tree Lighting Commission 12/1/2022
4. Charity Coat Drive Commission 12/1 - 12/8/22
4. Earth Day - Green Initiatives Commission, Staff 4/23
5. Youth-Commission Advocacy Commission On Going
Teen Center 1. Programming and Engagement for Teens Commission, Staff On Going
2. Teen Center Re-Grand Opening Commission, Staff 10/22
Engage Youth and Teens 1. Spelling Bee Commission, Staff 3/23
2. Coding Competition
Commission, Staff, Outside
Agency
2/11/2023
3. Promotion of Milpitas Youth Force Commission, Staff 4/2023-6/2023
50 Item # C6.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: FY 2021-22 Fourth Quarter Financial Status Report, Fund Balances Thereof and Related Budget Amendments to Close-out the FY 2021-22 Budget (Staff Contact:
Lauren Lai, Director of Finance, 408-586-3111)
Category: Leadership and Strategic Support Services
Meeting Date: 9/20/2022
Recommendation: 1. Review the FY 2021-22 Quarterly Financial Status Report for the quarter ending June 30, 2022 (unaudited), and
2. Approve budget, contingency and reporting recommendations
BACKGROUND:
On June 1, 2021, the City Council approved the Fiscal Year (FY) 2021-22 Adopted Operating Budget in the amount of $195.2 million and the General Fund Budget in the amount of $110.8 million. The City Council approved budget amendments that realigned revenue with updated projections and reduced personnel and non-personnel costs. Consistent with the fiscal reporting policies, staff monitors and tracks revenues and expenditures for all funds with an emphasis on the General Fund and Enterprise Funds.
ANALYSIS:
This staff report provides the final quarterly update for FY 2021-22 on budget versus actual revenues and expenditures of the General, Water and Sewer Funds, based on unaudited financial reports as of June 30, 2022. Further, this staff report includes recommendations to close out the FY 2021-22 budget and implement the Council approved reserve policies.
Fourth Quarter Financial Status Report
The summary information below as well as the attachments provide an overview of the financial status for the General, Water, and Sewer funds for FY 2021-22 as of June 30, 2022, a variance analysis of budget versus actual revenues and expenditures for the fourth quarter of FY 2021-22. The table below briefly summarizes the unaudited General Fund FY2021-22 revenues, expenditures, use of reserves and surplus of $7.7 million, which is primarily due to one-time revenue and expenditure savings.
General Fund
($ million)
FY2021-22
Adopted
Budget
FY2021-22
Amended Budget
As of 6/30/2022
Unaudited
Actual
As of 6/30/2022
Budget
Variance
Revenue $110.8 $112.9 $119.0 $6.1 Expenditure 117.0 114.9 111.3 (3.6) Surplus/(Deficit) 0 (2.0)* 7.7 *Primarily due to prior year encumbrances POs and contracts
General Fund Revenues (Attachment 1)
For the twelve months ending June 30, 2022, the General Fund has received $119.0 million in revenues, or 105.4%, of the FY 21-22 amended operating budget of $112.9 million, which includes operating transfers in.
The variance is primarily due to one-time revenues related to property tax ($1.5 million), sales and use tax ($1.5 million), charges for services ($1 million), and license & permits ($1.2 million). The amended budget of $112.9 million is comprised of the $110.8 million of the adopted budget plus the budget amendments of $1.6 million and a grant carryover of $0.5 million. A summary analysis on major revenue sources of unaudited figures is provided below.
51 Item # C7.
Property Taxes and Redevelopment Property Tax Trust Fund: For the twelve months ending June 30, 2022, $42.8 million, or 103.6%, of the $41.3 million of the amended budget has been received.
Revenues are 4.1% higher than last year at the same time, due to a higher Excess ERAF payment received. The City received $3.9 million in comparison with $2.5 million budgeted for Excess ERAF.
This $1.4 million of favorable Excess ERAF is one-time and Santa Clara County continues to caution the City against relying upon this surplus in future years. The court case is waiting the appeal period to expire and for that reason, this litigation remains a contingency.
Sales & Use Tax: For the twelve months ending June 30, 2022, $27.8 million, or 104.2%, of the $26.6 million amended budget has been received. Revenues are 16.7% greater than last year at the same time, which is an indication of recovery from the COVID pandemic.
Sales & Use Tax - Measure F: The district tax became operative April 1, 2021 and sunsets in eight years. For the quarter ending June 30, 2022, the City received $6.6 million, or 104.8%, of the amended budget. This is the first full fiscal year of Measure F revenues.
Franchise Fees: For the twelve months ending June 30, 2022, $5.2 million, or 97.9%, of the $5.3 million amended budget has been received. Revenues are 3.0% greater than last year at the same time.
Hotel/Motel (TOT) Tax: For the twelve months ending June 30, 2022, $8.0 million, or 107.3%, of the $7.5 million amended budget has been received. Revenues are 90.2% greater than last year at the same time which is due to less COVID-19 restrictions and hotel revenue recovery. At $8.0 million, it remains 45% below historical high of $14.5 million in FY2018-19.
License and Permits: For the twelve months ending June 30, 2022, $11.1 million, or 112.1%, of the $9.9 million amended budget has been received. Revenues are 1.1% higher than last year at the same time.
Charges for Services: For the twelve months ending June 30, 2022, $5.7 million, or 121.4%, of the $4.7 million amended budget has been received. Revenues are 24.5% greater than last year primarily due the end of mask mandates and strict COVID-19 regulations which allowed for regular programming, 52 Item # C7.
compared to last fiscal year’s COVID-19 cancellation of classes and activities that required Recreation fees refunds.
Intergovernmental: For the twelve months ending June 30, 2022, $3.0 million, or 106.2%, of the $2.8 million amended budget has been received. Revenues are 39.5% lower than last year primarily due to less fire mutual aid reimbursement. Intergovernmental revenues have offsetting expenditures.
General Fund Expenditures (Attachment 2)
For the twelve months ending June 30, 2022, the General Fund expenditures was $111.3 million (including encumbrance of $1.9 million), which is $3.6 million (3.1%) less than the amended budget of $114.9 million.
The budget represents the adopted appropriation of $110.8 million, plus $2.1 million of prior year encumbrances, $0.4 in grants carry over, and $1.6 million in amendments. As a result of general recruitment and/or competitive labor markets, staff vacancies primarily contributed to the expenditures savings.
Consequently, it is prudent to deem this as one-time expenditure variance that provides additional fund balance resources, instead of on-going reductions of General Fund operating budget.
Unanticipated Expenditure Reserve
In accordance with the City Council approved Budget Guidelines, as part of the quarterly financial status reports, staff shall report on the use of the Unanticipated Expenditure Reserve for the 4th quarter.
Description Amount
Soundwall Replacement 33,357
Pickleball Pilot Program 3,000
AG Witt Services related to FEMA COVID Claims 13,245
TOTAL for the Quarter Ending June 30, 2022 $ 49,602
General Fund Reserve Policies Implementation and recommendation For the fiscal year ended June 30, 2022, the City’s General Fund unaudited net surplus is $7.7 million, with revenues of $119.0 million and expenditures of $111.3 million. This net surplus is deemed one-time because the favorable revenue variances are primarily non-recurring and the expenditure savings are predominately due to staff vacancies.
Based on the General Fund unaudited FY 2021-22 operating expenditures of $111.3, the reserve target for the Contingency Reserve and the Budget Stabilization Reserve (BSR) is set at $18.6 million or 16.67% of approximately $111.3 million. Consistent with the Council approved General Fund Reserve Policies (resolution no. 9167, dated June 7, 2022), staff allocated the FY 2021-22 General Fund surplus as illustrated in table below. Also important of note, due to the pending education relief augmentation fund (ERAF) litigation, the proposed surplus allocation sets aside $1.2 million for ERAF Litigation Contingency, which is based upon County contingency guidance of 30% of $3.9 million FY22 ERAF revenues. 53 Item # C7.
Water Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2022, $30.2 million of charges for services, or 97.1%, of the $31.1 million budgeted has been received. Total revenue received amounts to $31.0 million, or 98.4%, of the $31.5 million budgeted.
Expenditures: For the twelve months ending June 30, 2022, $27.4 million, or 95.7%, of the $28.6 million amended budgeted has been spent.
Water Fund Expenditure Savings: For the fiscal year ended June 30, 2022, the Water Fund realized unaudited revenues of $31.0 million and expenditures of $27.4 million. This resulted in a one-time Water Fund expenditure savings of $3.7 million. Consistent with the General Fund, the Council approved budget policy stipulates surplus allocations into reserves for capital improvements, rate stabilization, pension, and infrastructure replacement.
Sewer Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2022, $21.3 million of charges for services, or 103.3%, of the $20.7 million budgeted has been received. Total revenue received amounts to $21.7 million, or 103.4%, of the $21.0 million budgeted.
Expenditures: For the twelve months ending June 30, 2022, $13.3 million, or 73.8%, of the $18.0 million amended budgeted has been spent.
Sewer Fund Expenditure Savings: For the fiscal year ended June 30, 2022, the Sewer Fund realized unaudited revenues of $21.7 million and expenditures of $13.3 million. This resulted in a one-time Sewer Fund expenditure savings of $8.4 million. Consistent with the General Fund, the Council approved budget policy stipulates surplus allocations into reserves for capital improvements, rate stabilization, pension, and infrastructure replacement.
54 Item # C7.
Budget Amendment Recommendations
Staff recommends approval of various budget amendments to align appropriations to actual expenditures incurred, services rendered, and revenues received. The budget appropriation amendment recommendations are summarized below:
a. Increase Fire General Fund (Fund 100) from Non-Departmental (Fund 100) budget by $1,610,000.
The budget variance is due to leave cash out and overtime, especially due to minimum staffing.
Due to the COVID pandemic, FY2021-22 overtime had an extraordinary level of backfill for sick leave and/or family medical leave act (FMLA) leave.
b. Increase Building Safety from Affordable Housing Restricted Fund 216 fund balance by $57,500 due to pending REAP grant reimbursement which is anticipated in next fiscal year. c. Increase Affordable Housing Restricted Fund 216 grant revenue and appropriation by $62,823 for the REAP grant portion expended and receivable as of 6/30/2022. d. Increase Non-Departmental CFD 2008 (Fund 238) budget from Fund 238 fund balance budget by $223.
e. Increase Non-Departmental CFD 2008 (Fund 238) budget from Fund 238 fund balance budget by $12,100 for higher utility costs.
f. Increase Community Planning Fund (Fund 214) from Fund 214 fund balance budget by $13,100 due primarily to leave cash out.
g. Increase CP #6132 Sewer Master Plan Update budget by $1,132 from Fund 450 residual cost
Reporting Recommendation:
These quarterly fiscal reports provide a timely update of the City’s general fund and enterprise funds. For fiscal year 2021-22, Council requested a status report on the FY22 Council approved budgeted contracts.
Staff delivered these status reports monthly through a process that is fairly time-consuming and starting in fiscal year 2022-23, Staff recommends pivoting that time to implementing innovations in various Finance operations and relying upon existing reporting functions to provide efficient updates, such as these quarterly reports, mid-year reports, and the annual budget development process.
POLICY ALTERNATIVE(S):
Alternative 1: Direct adherence to reserve policy without set aside for ERAF ligation contingency.
Pros: More resources may be allotted to other priorities.
Cons: ERAF ligation may be appealed and this matter may ultimately result in a negative outcome(s) for the City and resources may not be available for the potential financial obligation(s).
Reason not recommended: Staff recommends a conservative approach to this complex ERAF legal matter and to set aside FY2021-22 surplus until final litigation resolution, which is anticipated in FY2022-23 and at which time, the Council may direct Staff to re-allocate these resources for future use should the matter prevail in the City’s favor.
FISCAL IMPACT:
For the fiscal year ended June 30, 2022, the City’s General Fund unaudited surplus of $7.7 million, with revenues of $119.0 million and expenditures of $111.3 million. This result is primarily from one-time revenues and expenditure savings. If Council approves the recommendations outlined in this report, there is no fiscal impact to General Fund, Water Fund and Sewer fund balance and nominal reductions of fund balances for fund 214 ($13,100), fund 216 ($57,500), fund 238 ($12,323) and fund 450 (1,132).
California Environmental Quality Act (CEQA):
55 Item # C7.
This item is not a Project under CEQA exempt under CEQA Guideline 15378(b)(4) as it is a government fiscal activity that does not involve a commitment to any specific project which may result in a potentially significant physical impact on the environment.
RECOMMENDATION:
1. Review the FY 2021-22 Quarterly Financial Status Report for the Quarter Ending June 30, 2022, and
2. Approve budget, contingency and reporting recommendations
Attachment(s):
1. FY 2021-2022 General Fund Revenues Report for Fiscal Year-To-Date June 30, 2022
2. FY 2021-2022 General Fund Expenditures by Department June 30, 2022
3. FY 2021-2022 Water and Sewer Funds Financial Status for Fiscal Year-To-Date June 30, 2022
4. Budget Change Form
56 Item # C7.
FY22 FY22 FY22 FY22 FY22 FY22 FY22 FY21 Percentage
Adopted Amended Revenue Revenue Percentage Revenue
Increase
(Decrease)
Budget
Budget
Amendments
Grant
Carryover
Budget
as of 02/15/22 As of 06/30/22
Outstanding
Favorable/
(Unfavorable)
of Amended
Budget as of 06/30/21 FY22 / FY21
Property Tax 41,269,917$ -$ -$ 41,269,917$ 42,758,866$ 1,488,949$ 103.6% 41,093,302$ 4.1% Sales and Use Tax 25,633,000 1,002,511 0 26,635,511 27,752,789 1,117,278$ 104.2% 23,783,523 16.7% Sales and Use Tax - Measure F 6,308,250 0 0 6,308,250 6,611,485 303,235$ 104.8% 1,330,572 396.9% Licenses, Permits & Fines 10,276,817 (361,053) 0 9,915,764 11,115,358 1,199,594$ 112.1% 10,993,297 1.1% Hotel/Motel Tax 7,713,639 (243,552) 0 7,470,087 8,012,001 541,914$ 107.3% 4,213,325 90.2% Operating Transfer In 6,552,931 300,000 0 6,852,931 6,752,931 (100,000)$ 98.5% 16,050,148 -57.9% Franchise Fees 5,751,133 (452,477) 0 5,298,656 5,187,786 (110,870)$ 97.9% 5,035,476 3.0% Charges for Services 4,225,969 459,099 0 4,685,068 5,686,474 1,001,406$ 121.4% 4,565,988 24.5% Intergovernmental 1,154,571 1,119,147 520,181 2,793,899 2,968,070 174,171$ 106.2% 4,904,266 -39.5% Other Taxes 1,023,421 - 0 1,023,421 1,366,018 342,597$ 133.5% 1,046,895 30.5% Interest Income 500,000 (200,000) 0 300,000 263,226 (36,774)$ 87.7% 1,204,775 -78.2% Other Revenues 370,000 18,200 0 388,200 560,995 172,795$ 144.5% 445,009 26.1% Total General Fund Revenue 110,779,648$ 1,641,875$ 520,181$ 112,941,704$ 119,035,999$ 6,094,295$ 105.4% 114,666,574$ 3.8% General Fund Revenues
CITY OF MILPITAS
General Fund Revenues
For Fiscal Year-To-Date June 30, 2022
57 Item # C7.
Departments
Adopted
Budget Amendments Grants C/O Encumb. C/O
Amended
Budget Expenditure Encumbrance Total YTD Exp.
% of
Amended
Budget
FY21 YTD
Expenditure
Including
Encumbrance
% of Amended
FY21 Budget
City Council 549,474 -55,450 0 61,914 555,938 307,969 50,933 358,902 64.6% 342,052 76.5% City Manager * 2,062,856 -24,120 0 27,975 2,066,711 2,114,097 149,830 2,263,927 109.5% 2,198,328 94.9% City Clerk 570,791 -9,503 0 0 561,288 506,283 0 506,283 90.2% 608,551 101.5% Economic Development 895,807 -19,879 0 41,500 917,428 835,618 750 836,368 91.2% 822,776 94.2% Policy Planning 4,078,928 -108,952 0 131,389 4,101,365 3,763,967 201,513 3,965,480 96.7% 3,971,707 93.7% Building Safety & Housing 5,833,755 -305,067 0 77,669 5,606,357 4,947,675 86,804 5,034,479 89.8% 5,600,986 98.7% City Attorney 1,029,100 0 0 0 1,029,100 958,092 32,978 991,070 96.3% 1,412,482 104.4% Engineering 3,740,281 -44,716 0 6,796 3,702,361 3,387,968 42,932 3,430,900 92.7% 3,661,237 95.5% Finance ** 4,180,126 11,500 0 89,258 4,280,884 4,236,111 71,825 4,307,936 100.6% 4,272,250 100.0% Fire 26,592,973 1,146,305 0 63,496 27,802,774 29,214,829 164,068 29,378,897 105.7% 28,263,765 100.1% Human Resources 1,865,271 -103,297 0 89,883 1,851,857 1,567,127 61,696 1,628,823 88.0% 1,896,862 89.0% Information Technology 3,659,100 -100,826 0 48,202 3,606,476 3,234,109 7,830 3,241,939 89.9% 3,562,993 99.7% Non-Departmental 8,016,549 2,586,665 0 546,043 11,149,257 7,502,509 385,586 7,888,095 70.7% 6,661,942 69.1% Planning *** 1,712,346 -87,293 323,774 168,087 2,116,914 1,853,035 305,014 2,158,049 101.9% 2,152,184 99.4% Police 35,606,905 -1,005,866 17,885 330,467 34,949,391 34,734,197 107,969 34,842,481 99.7% 34,712,155 100.0% Public Works 8,789,060 -210,421 0 574,803 9,153,442 8,637,867 371,372 9,009,239 98.4% 9,355,086 101.6% Recreation & Community Services 5,334,672 -137,023 12,968 12,713 5,223,330 4,986,898 47,027 5,033,925 96.4% 3,674,168 85.3% Transfers In/Out/Revenue 340,590 0 0 0 340,590 340,590 0 340,590 100.0% 300,000 100.0% Grand Total 110,779,656 1,641,009 354,627 2,138,806 114,914,098 109,364,974 1,886,614 111,251,903 96.8% 109,497,817 95.3% * City Manager - primarily due to leave cash out
** Finance - CIP payroll cost distribution to be posted "** Planning - temporary position funded via staff vacancy savings City of Milpitas
General Fund Expenditure By Department Financial Status For Fiscal Year-To-Date June 30, 2022
58 Item # C7.
Revenue Categories Adopted Budget Amendments Grants C/O Amended Budget Receipt Outstanding % Receipt Receipt
6/30/2021
% Receipt
6/30/2021
Charges for Services 31,143,569 0 0 31,143,569 30,249,470 894,099 97.1% 30,582,368 98.0% Intergovernmental 0 0 0 0 205,447 (205,447) 0.0% 111,567 0.0% Licenses, Permits & Fines 0 0 0 0 (4,401) 4,401 0.0% (51,545) 0.0% Other Revenues 17,601 0 0 17,601 379,560 (361,959) 2156.5% 0 0.0% Use of Money and Property 372,000 0 0 372,000 199,327 172,673 53.6% 10,681 2.3% Grand Total 31,533,170 0 0 31,533,170 31,029,403 503,767 98.4% 30,653,071 95.6% Expenditures by Department Adopted Budget Amendments Grants C/O Encumb. C/O Amended
Budget Expenditure Encumbrance Total YTD Exp.
% of Amended
Budget
Total YTD Exp.
06/30/2021
% of Amended
Budget 6/30/2021
City Attorney 7,071 0 0 0 7,071 4,805 0 4,805 68.0% 385 100.0% Engineering 0 0 0 29,500 29,500 29,500 0 29,500 100.0% 37,500 56.0% Finance 1,014,844 0 0 24,652 1,039,496 864,797 0 864,797 83.2% 789,313 75.7% Non-Departmental 20,571,485 6,498 0 47,461 20,625,444 19,469,599 0 19,469,599 94.4% 19,629,824 101.0% Public Works 4,141,441 0 0 159,266 4,300,707 4,274,680 0 4,274,680 99.4% 5,018,392 98.8% Transfers In/Out/Revenue 2,571,407 0 0 0 2,571,407 2,571,407 0 2,571,407 100.0% 2,798,779 100.0% Grand Total 28,306,248 6,498 0 260,879 28,573,625 27,214,788 0 27,214,788 95.2% 28,274,193 99.5% Revenue Categories Adopted Budget Amendments Grants C/O Amended Budget Receipt Outstanding % Receipt Receipt
6/30/2021
% Receipt
6/30/2021
Charges for Services 20,657,555 0 0 20,657,555 21,338,805 (681,250) 103.3% 19,897,504 96.2% Intergovernmental 100,035 0 0 100,035 100,623 (588) 0.0% 13761 0.0% Licenses, Permits & Fines 0 0 0 0 (11,746) 11,746 0.0% -26874 0.0% Operating Transfer In 11 0 0 11 11 (0) 102.2% 0 0.0%
Use of Money and Property 251,000 0 0 251,000 287,809 (36,809) 114.7% 162,837 80.6% Grand Total 21,008,601 0 0 21,008,601 21,715,502 (706,901) 103.4% 20,047,228 95.0% Expenditures by Department Adopted Budget Amendments Grants C/O Encumb. C/O Amended
Budget Expenditure Encumbrance Total YTD Exp.
% of Amended
Budget
Total YTD Exp.
6/31/2021
% of Amended
Budget 6/31/2021
City Manager 0 0 0 0 0 0 0 0 186 0.0%
Engineering 0 0 0 14,500 14,500 14,500 0 14,500 100.0% 37,250 55.6% Finance 586,262 0 0 21,316 607,578 565,230 0 565,230 93.0% 494,080 77.1% Non-Departmental 10,251,498 368,411 0 1,912,168 12,532,077 8,232,725 0 8,232,725 65.7% 9,454,102 73.5% Public Works 2,762,327 484,000 0 152,329 3,398,656 3,008,369 0 3,008,369 88.5% 2,513,352 82.1% Transfers In/Out/Revenue 1,482,966 0 0 0 1,482,966 1,482,966 0 1,482,966 100.0% 3,150,520 192.6% Grand Total 15,083,053 852,411 0 2,100,313 18,035,777 13,303,790 0 13,303,790 73.8% 15,649,490 85.7% City of Milpitas
Water and Sewer Financial Status
For Fiscal Year-To-Date June 30, 2022 (unaudited)
Water Fund
Sewer Fund
59 Item # C7.
City of Milpitas, California
BUDGET CHANGE FORM
From* To*
Type of Change
Account
Amount
Account
Amount
Check one:
Budget Appropriation
Budget Transfer
100-9104113
100-9104112
100-9104112
100-9104112
216-2940
216-3551
238-2940
238-2940
214-2940
$1,300,000
$200,000
$100,000
$10,000
$57,500
$62,823
$223
$12,100
$13,100
100-8124113
100-8014112
100-8214112
100-8224112
216-5364237
216-5364237
238-9104237
238-4244423
214-5124111
$1,300,000
$200,000
$100,000
$10,000
$57,500
$62,823
$223
$12,100
$13,100
1. Review the FY 2021-22 Quarterly Financial Status Report for the quarter ending June 30, 2022 (unaudited), and
2. Approve budget, contingency and reporting recommendations
Background:
On June 1, 2021, the City Council approved the Fiscal Year (FY) 2021-22 Adopted Operating Budget in the amount of $195.2 million and the General Fund Budget in the amount of $110.8 million. The City Council approved budget amendments that realigned revenue with updated projection and reduced personnel and non-personnel costs. Consistent with the fiscal reporting policies, staff monitors and tracks revenues and expenditures for all funds with an emphasis on the General Fund and Enterprise Funds.
Analysis:
This staff report provides the final quarterly update for FY 2021-22 on budget versus actual revenues and expenditures of the General, Water and Sewer Funds, based on unaudited financial reports as of June 30, 2022. Further, this staff report includes recommendations to close out the FY 2021-22 budget and implement the Council approved reserve policies.
Fourth Quarter Financial Status Report
The summary information below as well as the attachments provide an overview of the financial status for the General, Water, and Sewer funds for FY 2021-22 as of June 30, 2022, a variance analysis of budget versus actual revenues and expenditures for the fourth quarter of FY 2021-22. The table below briefly summarizes the unaudited General Fund FY2021-22 revenues, expenditures, use of reserves and surplus of $7.7 million, which is primarily due to one-time revenue and expenditure savings.
Gene
ral Fund
($ million)
FY2021-22
Adopted
Budget
FY2021-22
Amended Budget As
of 6/30/2022
Unaudited
Actual
As of 6/30/2022
Budget
Variance
Revenue $110.8 $112.9 $119.0 $6.1 Expenditure 117.0 114.9 111.3 (3.6) Surplus/(Deficit) 0 (2.0)* 7.7 2.5 *Primarily due to prior year encumbrances POs and contracts
60 Item # C7.
General Fund Revenues (Attachment 1)
For the twelve months ending June 30, 2022, the General Fund has received $119.0 million in revenues, or 105.4%, of the FY 21-22 amended operating budget of $112.9 million, which includes operating transfers in.
The variance is primarily due to one-time revenues related to property tax ($1.5 million), sales and use tax ($1.5 million), and license & permits ($1.2 million). The amended budget of $112.9 million is comprised of the $110.8 million of the adopted budget plus the budget amendments of $1.6 million and a grant carryover of $0.5 million. A summary analysis on major revenue sources of unaudited figures is provided below.
• Property Taxes and Redevelopment Property Tax Trust Fund: For the twelve months ending June 30, 2022, $42.8 million, or 103.6%, of the $41.3 million of the amended budget has been received. Revenues are 4.1% higher than last year at the same time, due to a higher Excess ERAF payment received. The City received $3.9 million in comparison with $2.5 million budgeted for Excess ERAF. This $1.4 million of favorable Excess ERAF is one-time and Santa Clara County continues to caution the City against relying upon this surplus in future years. The court case is waiting the appeal period to expire and for that reason, this litigation remains a contingency.
• Sales & Use Tax: For the twelve months ending June 30, 2022, $28.1 million, or 105.5%, of the $26.6 million amended budget has been received. Revenues are 18.1% greater than last year at the same time, which is an indication of recovery from the COVID pandemic.
• Sales & Use Tax - Measure F: The district tax became operative April 1, 2021 and sunsets in eight years. For the quarter ending June 30, 2022, the City received $6.3 million, or 99.4%, of the amended budget. This is the first full fiscal year of Measure F revenues.
• Franchise Fees: For the twelve months ending June 30, 2022, $5.2 million, or 97.9%, of the $5.3 million amended budget has been received. Revenues are 3.0% greater than last year at the same time.
61 Item # C7.
• Hotel/Motel (TOT) Tax: For the twelve months ending June 30, 2022, $8.0 million, or 107.3%, of the $7.5 million amended budget has been received. Revenues are 90.2% greater than last year at the same time which is due to less COVID-19 restrictions and hotel revenue recovery. At $8.0 million, it remains 45% below historical high of $14.5 million in FY2018-19.
• License and Permits: For the twelve months ending June 30, 2022, $11.1 million, or 112.1%, of the $9.9 million amended budget has been received. Revenues are 1.1% higher than last year at the same time.
• Charges for Services: For the twelve months ending June 30, 2022, $5.7 million, or 121.4%, of the $4.7 million amended budget has been received. Revenues are 24.5% greater than last year primarily due the end of mask mandates and strict COVID-19 regulations which allowed for regular programming, compared to last fiscal year’s COVID-19 cancellation of classes and activities that required Recreation fees refunds.
• Intergovernmental: For the twelve months ending June 30, 2022, $3.0 million, or 106.2%, of the $2.8 million amended budget has been received. Revenues are 39.5% lower than last year primarily due to less fire mutual aid reimbursement. Intergovernmental revenues have offsetting expenditures.
General Fund Expenditures (Attachment 2)
For the twelve months ending June 30, 2022, the General Fund expenditures was $111.3 million (including encumbrance of $1.9 million), which is $3.6 million (3.1%) less than the amended budget of $114.9 million. The budget represents the adopted appropriation of $110.8 million, plus $2.1 million of prior year encumbrances, $0.4 in grants carry over, and $1.6 million in amendments. As a result of general recruitment and/or competitive labor markets, staff vacancies primarily contributed to the expenditures savings. Consequently, it is prudent to deem this as one-time expenditure variance that provides additional fund balance resources, instead of on-going reductions of General Fund operating budget.
Unanticipated Expenditure Reserve
In accordance with the City Council approved Budget Guidelines, as part of the quarterly financial status reports, staff shall report on the use of the Unanticipated Expenditure Reserve for the 4th quarter.
Description Amount
Soundwall Replacement 33,357
Pickleball Pilot Program 3,000
AG Witt Services related to FEMA COVID Claims 13,245
TOTAL for the Quarter Ending June 30, 2022 $ 49,602
General Fund Reserve Policies Implementation and recommendation For the fiscal year ended June 30, 2022, the City’s General Fund unaudited net surplus is $7.7 million, with revenues of $119.0 million and expenditures of $111.3 million. This net surplus is deemed one-time because the favorable revenue variances are primarily non-recurring and the expenditure savings are predominately due to staff vacancies.
Based on the General Fund unaudited FY 2021-22 operating expenditures of $111.3, the reserve target for the Contingency Reserve and the Budget Stabilization Reserve (BSR) is set at $18.6 million or 16.67% of approximately $111.3 million. Consistent with the Council approved General Fund Reserve Policies (resolution no. 9167, dated June 7, 2022), staff allocated the FY 2021-22 General Fund surplus as illustrated in table below. Also important of note, due to the pending education relief augmentation fund (ERAF) litigation, the proposed surplus allocation sets aside $1.2 million for ERAF Litigation Contingency, which is based upon County contingency guidance of 30% of $3.9 million FY22 ERAF revenues. 62 Item # C7.
Water Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2022, $30.2 million of charges for services, or 97.1%, of the $31.1 million budgeted has been received. Total revenue received amounts to $31.0 million, or 98.4%, of the $31.5 million budgeted.
Expenditures: For the twelve months ending June 30, 2022, $27.4 million, or 95.7%, of the $28.6 million amended budgeted has been spent.
Water Fund Expenditure Savings: For the fiscal year ended June 30, 2022, the Water Fund realized unaudited revenues of $31.0 million and expenditures of $27.4 million. This resulted in a one-time Water Fund expenditure savings of $3.7 million.
Sewer Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2022, $21.3 million of charges for services, or 103.3%, of the $20.7 million budgeted has been received. Total revenue received amounts to $21.7 million, or 103.4%, of the $21.0 million budgeted.
Expenditures: For the twelve months ending June 30, 2022, $13.3 million, or 73.8%, of the $18.0 million amended budgeted has been spent.
Sewer Fund Expenditure Savings: For the fiscal year ended June 30, 2022, the Sewer Fund realized unaudited revenues of $21.7 million and expenditures of $13.3 million This resulted in a one-time Sewer Fund expenditure savings of $8.4 million.
63 Item # C7.
Budget Amendment Recommendations
Staff recommends approval of various budget amendments to align appropriations to actual expenditures incurred, services rendered, and revenues received. The budget appropriation amendment recommendations are summarized below:
a. Increase Fire General Fund (Fund 100) from Non-Departmental (Fund 100) budget by $1,610,000. The budget variance is due to leave cash out and overtime, especially due to minimum staffing. Due to the COVID pandemic, FY2021-22 overtime had an extraordinary level of backfill for sick leave and/or family medical leave act (FMLA) leave. b. Increase Building Safety from Affordable Housing Restricted Fund 216 fund balance by $57,500 due to pending REAP grant reimbursement which is anticipated in next fiscal year. c. Increase Affordable Housing Restricted Fund 216 grant revenue and appropriation by $62,823 for the REAP grant portion expended and receivable as of 6/30/2022 d. Increase Non-Departmental CFD 2008 (Fund 238) budget from Fund 238 fund balance budget by $223.
e. Increase Non-Departmental CFD 2008 (Fund 238) budget from Fund 238 fund balance budget by $12,100 for higher utility costs.
f. Increase Community Planning Fund (Fund 214) from Fund 214 fund balance budget by $13,100 due primarily to leave cash out.
g. Increase CP #6132 Sewer Master Plan Update budget by $1,132 from Fund 450 residual cost
Reporting Recommendation:
These quarterly fiscal reports provide a timely update of the City’s general fund and enterprise funds. For fiscal year 2021-22, Council requested a status report on the FY22 Council approved budgeted contracts. Staff delivered this status reports monthly through a process that is fairly time-consuming and starting in fiscal year 2022-2, Staff recommends pivoting that time to implementing innovations in various Finance operations and relaying upon existing reporting functions to provide efficient updates, such as these quarterly reports, mid-year reports, and budget development.
Policy Alternatives:
Alternative 1: Direct adherence to reserve policy without set aside for ERAF ligation contingency.
Pros: More resources may be allotted to other priorities.
Cons: ERAF ligation may be appealed and this matter may ultimately result in a negative outcome(s) for the City and resources may not be available for the potential financial obligation(s).
Reason not recommended: Staff recommends a conservative approach to this complex ERAF legal matter and to set aside FY2021-22 surplus until final litigation resolution, which is anticipated in FY2022-23 and at which time, the Council may direct Staff to re-allocate these resources for future use should the matter prevail in the City’s favor.
Fiscal Impact:
For the fiscal year ended June 30, 2022, the City’s General Fund unaudited surplus of $7.7 million, with revenues of $119.0 million and expenditures of $111.3 million. This result is primarily from one-time revenues and expenditure savings. If Council approves the recommendations outlined in this report, there is no fiscal impact to General Fund, Water Fund and Sewer fund balance and nominal reductions of fund balances for fund 214 ($13,100), fund 216 ($57,500), fund 238 ($12,323) and fund 450 (1,132).
California Environmental Quality Act:
This item is not a Project under CEQA exempt under CEQA Guideline 15378(b)(4) as it is a government fiscal activity that does not involve a commitment to any specific project which may result in a potentially significant physical impact on the environment.
64 Item # C7.
Recommendation:
1. Review the FY 2021-22 Quarterly Financial Status Report for the Quarter Ending June 30, 2022, and
2. Approve budget, contingency and reporting recommendations
Attachments:
1. FY 2021-2022 General Fund Revenues Report for Fiscal Year-To-Date June 30, 2022
2. FY 2021-2022 General Fund Expenditures by Department June 30, 2022
3. FY 2021-2022 Water and Sewer Funds Financial Status for Fiscal Year-To-Date June 30, 2022
4. Budget Change Form
Check if City Council Approval required. Meeting Date: September 20, 2022
Requested by: Department Head: Lauren Lai Date: September 20, 2022 Reviewed by: Finance Director: Lauren Lai Date: September 20, 2022
Date approved by City Council, if required: Confirmed by:
FI/24786/V Form 30-222 (Rev. 1/92)
65 Item # C7.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Authorize the City Manager to Execute a Master Encroachment Agreement for Mobilitie, LLC, a Nevada Limited Liability Company for Installation of Network Facilities Within Public Right-of-Way (Staff Contact: Roberto Alonzo, 408-586-3316) Category: Consent Calendar-Community Development
Meeting Date:
Recommendation: Authorize the City Manager to Execute a Master Encroachment Agreement for Mobilitie, LLC, a Nevada Limited Liability Company for Installation of Network Facilities Within Public Right-of-Way.
BACKGROUND:
Mobilitie, LLC, a Nevada limited liability company is requesting permission to install and operate private underground fiber optic lines within City public right-of-way for its communication network to serve the business community with a focus on connecting data centers and targeted metro business districts. The initial fiber deployment will consist of a high strand count backbone focused on data centers and end user buildings.
Mobilitie currently is under contract with the Bay Area Rapid Transit (BART) to install and provide next generation wireless connectivity to BART ridership. Mobilitie will install 150 wayside poles supporting small cell antennas within BART right of way and will provide ubiquitous WI-FI connectivity throughout BART. Following completion of the BART related work, Mobilitie proposes to install a fiber optic backbone alignment through the City of Milpitas, which is anticipated to be along Milpitas Boulevard from Montague Expressway north to the City limit.
ANALYSIS:
Telecommunications providers are authorized to provide Telecommunications Services in the state of California pursuant to a Certificate of Public Convenience and Necessity (CPCN) issued by the Public Utilities Commission of the State of California and, as a telephone corporation, may use public roads and highways pursuant to Public Utilities Code Section 7901. A Master Encroachment Agreement (Attached) is recommended to allow for the installation, maintenance, perpetual use, and outlines the terms and conditions for the use of the public right-of-way.
POLICY ALTERNATIVE(S):
Alternative 1: Not approve the proposed Master Encroachment Agreement with Mobilitie for installation of fiber optic telecommunications equipment with the City’s public right of way.
Pros: None
Cons: Not approving the Master Encroachment Agreement may delay installation of the telecommunications equipment and delay business within Milpitas from enhanced communications connectivity.
Reason for Not Recommending: State law has authorized the use of the public right of way for installation of telecommunications equipment. The proposed Master Encroachment Permit Agreement allows for the installation, maintenance, perpetual use, and outlines the terms and conditions for the use of the public right- of-way.
FISCAL IMPACT:
Mobilitie will pay City review costs for plan review and construction inspection for installation of their fiber optic communications equipment within City right of way. 66 Item # C8.
California Environmental Quality Act (CEQA):
Categorically Exempt. The project is categorically exempt from environmental review under the California Environmental Quality Act (CEQA) in accordance with CEQA Guidelines Section 15303 (New Construction or Conversion of Small Structures), and as a separate and independent basis, CEQA Guidelines Section 15061(b)(3) (Common Sense Exemption). The project involves the construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. The proposed project would not have a significant effect on the environment.
RECOMMENDATION:
Authorize the City Manager to Execute a Master Encroachment Agreement for Mobilitie, LLC, a Nevada Limited Liability Company for Installation of Network Facilities Within Public Right-of-Way.
Attachment(s):
Master Encroachment Permit Agreement
67 Item # C8.
1 Recording Requested By
City of Milpitas
When. Recorded it To:
City of Milpitas
Engineering Director
455 E. Calaveras Blvd.
Milpitas, CA 95035
For t he Benefit o f
Cit y of Milpitas
Recorded Free
Gov. Code Sec. 27383
(Space above this line for Recorder's Use)
MASTER ENCROACHMENT AGREEMENT
BETWEEN THE CITY OF MILPITAS
AND MOBILITIE, LLC
RELATED TO THE INSTALLATION OF NETWORK FACILITIES
WITHIN PUBLIC RIGHT-OF-WAY
This Agreement ("Agreement") dated as of ____________ __, 20__ ("Effective Date") is entered into by and between the CITY OF MILPITAS, a California municipal corporation (herein termed "CITY") and Mobilitie, LLC , a Nevada limited liability company (herein termed "ENCROACHER"). CITY and ENCROACHER are sometimes indivi dually referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, ENCROACHER is authorized to provide Telecommunications Services (as defined herein) in the state of California pursuant to a Certificate of Public Convenience and Necessity (CPCN) issued by the Public Utilities Commission of the State of California and, as a telephone corporation, may use public roads and highways pursuant to Public Utilities Code Secti on 7901; and,
WHEREAS, CITY owns, operates and maintains the Public Right-of-Way (as defined herein) within CITY; and,
WHEREAS, ENCROACHER desires to construct Network Facilities (as defined herein) within the Public Right-of-Way within CITY to provide Telecommunications Services; and 68 Item # C8.
2 WHEREAS, CITY has the authority to regulate the terms and conditions for the use of Public Right-of-Way for the construction, installation, and maintenance of Network Facilities by ENCROACHER.
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein, CITY AND ENCROACHER agree as follows:
SECTION 1
DEFINITIONS
1.1 Network Facilities or Facilities - Means any and all cables, lines, poles, conduits, access manholes, handholes, pedestals, boxes, and other similar equipment and devices owned or leased by ENCROACHER. The term does not include antennas, cell towers, or other wireless facilities. No portion of Network Facilities shall, without the CITY’s prior authorization, be: (1) used by ENCROACHER as all or any portion of a cable television system or community antenna television system; (2) used by ENCROACHER to provide Video Services; or (3) used by ENCROACHER for any purposes other than the provision of Telecommunications Services.
1.2 Public Right-of-Way or Public Rights-of-Way - Means the full width of the right-of-way of any City street, as defined in the California Vehicle Code used by the general public. "Public Right-of-Way" also includes any dedicated public utility easement in which CITY now or hereafter holds any property interest which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining Network Facilities. The term does not include any area designated or delineated as a proposed public street on any tentative subdivision or parcel map approved by CITY which has not yet become a public street.
1.3 Telecommunications Services - Means services that ENCROACHER is authorized to offer and or provide pursuant to any applicable law or CPCN, including its existing CPCN ( ________________ ) which authorizes ENCROACHER to provide facilities-based competitive local exchange service and int erexchange services.
Telecommunications services also includes offering internet access, data transport, private line, and facilities leasing to affiliates and third parties, which may also be offered through an indefeasible right of use to the extent permitted by a pplicable law.
1.4 Video Services — Means services provided pursuant to any applicable California Video Franchise Certificate issued by the California Public Utilities Commission pursuant to the Digital Infrastructure and Video Competition Act (Public Utilities Code, Section 5800 and following, and California Public Utilities Commission decisions pertaining to video services.
SECTION 2
SCOPE OF USE OF PUBLIC RIGHT -OF-WAY
2.1 Nothing in the Agreement shall be construed as granting or creating any franchise rights.
2.2 CITY hereby grants an encroachment right to ENCROACHER, subject to reservations, covenants, and conditions herein contained, to construct, install, maintain and operate, and remove Network Facilities within Public Right-of-Way that are located within 69 Item # C8.
3 the corporate limits of the CITY to provide Telecommunications Services, subject to obtaining all required permits and approvals. ENCROACHER may install replacement poles (subject to the approval of the pole owner and CITY).
2.3 ENCROACHER shall not commence installation of Network Facilities until ENCROACHER has first obtained a permit to do so in accordance with this Agreement and applicable law. Before ENCROACHER applies for any new permits after the Effective Date of this Agreement, ENCROACHE R must submit: (i) a comprehensive master plan ("Master Plan") showing at a minimum the location and specific details (i.e., underground depth, above -ground height, etc.) of all Network Facilities presently installed within the City's limits; (ii) a Master Plan showing a high -level design of all Network Facilities presently intended to be installed over the five -year period from the Effective Date; and (iii) the Bond (as defined in Section 8). The Master Plan shall be submitted in conformance with the requi rements of the City’s Engineering Plans and Maps and Procedures , and the Master Plan shall be completed by a California Licensed Civil Engineer. ENCROACHER shall provide an updated Master Plan annually, showing, to the extent applicable, any change to the Master Plan submitted in the prior year.
ENCROACHER does not warrant the continuing accuracy of the Master Plan or any updates to the Master Plan as it relates to anticipated projects, and ENCROACHER may, in its sole discretion, deviate at any time from t he Master Plan as it relates to anticipated projects, subject, however, to ENCROACHER providing notice to the City Engineer and updating the Master Plan and, obtaining all appropriate and necessary Encroachment Permits and other licenses, permits, authorizations, and approvals required under this Agreement
2.4 ENCROACHER shall not install or erect any facilities or apparatus in or on other public property or places, or within any privately owned area within CITY which has not yet become a public str eet but is designated or delineated as a proposed public street on any tentative subdivision or parcel map approved by CITY, except those installed or erected upon public utility facilities now existing , without obtaining the prior written approval of the City Engineer.
2.5 ENCROACHER is not authorized to place any facilities other than Network Facilities in the Public Right-of-Way, without first obtaining written authorizations and required permits (including any necessary franchises) from the CITY, except that the foregoing does not apply to facilities where state law preempts any requirement for local authorization.
2.6 ENCROACHER shall comply with any lawful provision that the CITY may adopt in the future requiring it to obtain a franchise or other authorization and may be required to do so as a condition of the continued effectiveness of this Agreement. The City Engineer shall, subject to applicable laws, be solely responsible for determining what written authorizations and or permits are required. ENCROACHER agrees that once a written authorization and/or permit is determined to be required, ENCROACHER shall first apply for same before challenging the requirement.
2.7 This Agreement does not authorize use of any property other than the City Public Rights of Way. Any use of any other CITY-owned or CITY-controlled property, including but not limited to poles and conduits, shall require a separate agreement.
2.8 No use of any Public Right-of-Way or other interest or property under this 70 Item # C8.
4 Agreement shall create or vest in ENCROACHER any ownership or other interest in the Public Right -of-Way, streets or any other property or interest of the CITY. This Agreement is not a grant by the CITY of any property interest but is made subject and subordinate to the prior and continuing right of CITY and its assigns to use all the Public Right -of-Way in the performance of its governmental duties and police powers including but not limited to, public use as a street and for the purpose of laying, installing, maintaining , repairing, protecting, replacing , and removing sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electrics, and telephone lines electroliers, cable television, and other utility and municipal uses together with appurt enances thereof and with right of ingress and egress, along, over, across , and in said Public Right -of-Way.
ENCROACHER shall have a duty to remove, relocate , and rearrange its facilities within a time frame set forth by CITY (subject to force majeure and events beyond the control of ENCROACHER), and at its own expense (except as otherwise set forth in this Agreement), in order to accommodate such uses, as further provided in this Agreement and applicable law.
Further, ENCROACHER shall not cause any unreasonable delay or interference with CITY’s access to the Public Right-of-Way. ENCROACHER shall not interfere with the operations of CITY in the Public Right-of-Way, whether or not such interference is considered material.
2.9 The grant of rights in this Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances , and claims of title which may affect the Public Right -of-Way, and it is understood that ENCROACHER, at its own costs and expense, shall obtain such permission as may b e necessary consistent with any other existing rights. No reference herein to a "Public Right -of-Way" shall be deemed to be representation or guarantee by CITY that its interest or other rights to control the use of such property is sufficient to permit it s use for such purposes, and ENCROACHER shall be deemed to gain only those rights to use the property as the CITY may have the undisputed right and power to give, and which do not interfere with CITY's needs for uses within the Public Right -of-Way. In the event of any conflict, the use of the subject Public Right -of- Way by ENCROACHER is secondary to the rights and needs of the CITY.
2.10 This Agreement shall be for the non-exclusive use of the Public Right-of- Way. By executing this Agreement, CITY does not agree to restrict the use of the Public Rights-of-Way in all or any part of the CITY by any person in the same business, a related business, or a competing business as ENCROACHER.
2.11 If the CITY is not prohibited from charging for use of the Public Right-of- Way by ENCROACHER by state or federal statute, it may do so, and the payment of any lawful compensation established by the CITY shall be a condition of the continued effectiveness of this Agreement.
SECTION 3
CONSTRUCTION AND MAINTENANCE STANDARDS
3.1 The construction, operation or repair and maintenance of Network Facilities shall be in accordance with all applicable Federal, State , and local laws, including, without limitation, zoning laws, construction codes , and CITY's latest standard specifications and details, as the same may exist now, or be hereafter issued, amended or revised, and any supplements thereto or revisions of this Agreement, and any Franchise or other authorization now or in the future. Nothing in this Agreement prevents the CITY from establishing additional or stricter conditions (even with respect to the matters specified in those sections) and requiring ENCROACHER to comply with the same. In the event of a 71 Item # C8.
5 conflict among codes and standards, the most stringent code or standard, as determined in the sole judgment of the City Engineer consistent with applicable law, shall apply.
3.2 ENCROACHER shall at all times employ reasonable care, within the meaning of applicable law, and shall install, maintain, and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.
3.3 This Agreement does not guarantee receipt of a particular permit or approval.
CITY reserves the right, and ENCROACHER hereby acknowledges, that CITY may reject without liability the design drawings for any proposed construction and/or require any changes thereto if CITY determines, in its sole and absolute discretion, that such action is necessary to ensure CITY can adequately inspect, clean, maintain, repair, and replace CITY’s existing property and structures and/or install additional structures within the Public Right-of- Way.
3.4 ENCROACHER shall construct, operate, and maintain its Network Facilities so as not to endanger or interfere with improvements CITY shall deem appropriate to make, consistent with applicable law, or to interfere in any manner with the Public Right - of-Way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic. ENCROACHER shall place facilities in strict conformance with the plans and drawings approved in writing by CITY, consistent with applicable law, and shall not place facilities, equipment , or fixtures where they will interfere with any existing gas, electric, telephone, telecommunications, water, sewer , or other utility facilities or obstruct or hinder in any manner such existing use of any Public Right -of-Way. Any and all Public Rights -of-Way, public property or private property that is disturbed or damaged by ENCROACHER during the construction, repair, replacement, relocation, operation, maintenance, or construction of a Network Facility shall be promptly repaired by ENCROACHER, in accordance with the latest CITY standards and to the satisfaction of the City Engineer, to a condition equal to or better than that which existed prior to the damage.
3.5 All construction shall be open and subject to inspection by CITY, and ENCROACHER shall give notice and allow CITY to inspect any underground improvements or installations prior to backfilling.
3.6 If Public Right-of-Way to be used by ENCROACHER has preexisting installation(s) placed in the said Public Right-of-Way, ENCROACHER shall assume the responsibility to verify the location of the preexisting installation by means as directed by City or other preexisting utility owner and notify, consistent with applicable law, CITY and any third-party owner of ENCROACHER's proposed installation. The cost of any work required of such third-party owner or CITY to provide adequate space or required clearance to accommodate ENCROACHER's installation shall, consistent with applicable law, be borne solely by ENCROACHER. Except as required by applicable law, CITY is under no obligation to move its existing utilities out of the way to accommodate or make room for ENCROACHER's Network Facilities.
3.7 Within ten business (10) days after its receipt of a written request from CITY, ENCROACHER shall, at its sole cost and expense , expose its subsurface Network Facility to a depth of one foot (1') below the bottom of such facility by means as directed by CITY. If ENCROACHER fails to perform, CITY may proceed on ENCROACHER's 72 Item # C8.
6 account and ENCROACHER shall promptly reimburse CITY for the cost of same, plus a 15 percent administrative overhead charge, and CITY is hereby held harmless and indemnified by ENCROACHER for any loss and or damages resulting from the CITY's performance of the required work.
3.8 Any contractor or subcontractor used for the construction, installation, operation, maintenance, or repair of the Network Facility equipment shall be properly licensed under the laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as ENCROACHER would have under this Agreement and applicable law as if the work were performed by ENCROACHER. ENCROACHER shall be responsible for the performance of the work of contractors and subcontractors consistent with the requirements of this Agreement and applicable law, including all acts or omissions of contractors or subcontractor, and ENCROACHER shall implement a quality control program to monitor that the work is properly performed. This section is not meant to alter tort liability of ENCROACHER to third parties.
3.9 ENCROACHER agrees to keep said Network Facilities in good and safe condition and free from any nuisance.
3.10 ENCROACHER shall identify the Network Facilities installed in each Public Right-of-Way by means of an identification method mutually agreed upon by the Parties, or as directed by the City Engineer if the Parties cannot mutually agree on an identification method. Such identification shall be detectable from ground level without opening the street.
To prevent conflicts between ENCROACHER's Network Facilities and public facilities in the same location, ENCROACHER shall participate in the USA North 811 Program and notify Underground Service Alert of the location of the facilities for the benefit of future construction projects which may need to be aware of the presence of the Network Facilities within the Public Right-of-Way. Failure of ENCROACHER to comply with this Section shall not create any claim or right against the CITY, and as set forth herein below, ENCROACHER shall indemnify and hold harmless, and defend CITY from any and all costs for failure to comply with this Section.
SECTION 4
SERVICE CHANGES
4.1 ENCROACHER hereby represents and warrants that: 1) it has any and all authorizations and approvals from state and federal regulatory agencies including the California Public Utilities Commission and the Federal Communications Commission as are necessary for the activities and Network Facilities contemplated by the A greement, and is in compliance in all material respects with its obligations under such authorizations; 2) the type of service offered through the Network Facilities in the Public Right of Way consists solely of Telecommunications Services ; 3) it does not offer Video Services; 4) Network Facilities will be installed only within the Public Rights -of-Way (underground within conduit or aerial on poles); and 5) it will not construct or install any new cell towers, poles or antennas.
4.2 The terms of this Agreement are based on the type of equipment comprising the Network Facilities, and the types of Telecommunications Services which ENCROACHER provides via the Network Facilities installed in the Public Right -of- 73 Item # C8.
7 Way. ENCROACHER. acknowledges that any change in s ervice or change in the law may increase the CITY's regulatory authority over such services, product, and ENCROACHER's use of Public Right -of-Way, and may require modification of this Agreement, and require ENCROACHER to obtain additional authorizations co nsistent with the requirements of an existing or hereinafter -enacted CITY ordinance regulating such services.
4.3 If ENCROACHER is authorized by the California Public Utilities Commission to provide additional and/or alternative services, including but not limited to Video Services, and intends to offer such services to customers within the corporate limits of CITY, ENCROACHER shall notify CITY in writing, as soon as practicable, comply with CITY's local ordinances, and pay to CITY any applicable franchise or other fees.
SECTION 5
TAXES
5.1 ENCROACHER agrees that it will be solely responsible for the payment of any and all lawful taxes, fees, and assessments relating to its use and maintenance of the Network Facilities including but not limited to all taxes, fees, and assessments listed in ENCROACHER's CPCN issued by the California Public Utilities Commission.
5.2 ENCROACHER shall provide such records to CITY as CITY may require to confirm compliance with this requirement as it pertains to CITY’s taxes, fees, and assessments. The cost of any auditor to conduct such audit shall be borne by ENCROACHER if that audit discloses an underpayment of more than five percent (5%) of the amount remitted. Audits shall not be conducted more than once every two (2) years, and ENCROACHER or CITY shall pay or rebate such amounts discovered by the auditor within sixty (60) days of receipt of the audit report.
5.3 Pursuant to Section 107.6 of the California Revenue and Taxation Code, the CITY hereby advises, and ENCROACHER recognizes and understands, that should ENCROACHER's use of Public Rights -of-Way create a possessory interest subject to property taxation, ENCROACHER may be subject to the payment of property taxes levied on such interest.
SECTION 6
REMOVAL AND RELOCATION
6.1 In the event of an emergency, or where Network Facilities create or are contributing to an imminent danger to health, safety, or property, CITY may remove any or all parts of those Network Facilities without prior notice; however, CITY shall make reasonable efforts to provide prior notice and, where prior notice is not given, shall notify ENCROACHER of such work as soon as practicable.
6.2 ENCROACHER shall upon sixty (60) days written notice from the CITY, relocate its facilities at its sole cost and expense to accommodate projects or needs of CITY, or other government agencies or where relocation is necessary to protect and preserve the public health safety or welfare.
6.3 In the event all or any portion of said Public Right-of-Way occupied by said 74 Item # C8.
8 Network Facilities shall be needed by CITY for governmental purposes (for example, if and when made necessary by any lawful change of grade, alignment or width of any street, including the construction, maintenance , or operation of any underground subway or viaduct by CITY and/ or the construction, maintenance , or operation of any other CITY underground or aboveground facilities ), or in the event the existence of said Network Facilities shall be considered detrimental to governmental activities, including but not limited to interference with CITY construction projects, or is in conflict vertically and/ or horizontally with any pro posed CITY installation, ENCROACHER shall, upon sixty (60) days advance written direction of CITY's City Engineer, remove and relocate said Network Facilities to such other location or locations on said Public Right -of-Way as may be designated by CITY, without cost or expense to CITY. Said removal or relocation shall be completed within sixty (60) days of notificatio n by CITY, except for force majeure events or events beyond the control of ENCROACHER.
6.4 ENCROACHER shall, by a time specified by CITY (subject to force majeure events or events beyond the control of ENCROACHER), protect, support, temporarily disconnect, relocate, or remove any of its property when required by CITY or any other governmental entity by reason of traffic conditions; public safety; Public Rights -of-Way construction; Public Rights -of-Way maintenance or repair (including resurfacing or widening); change of Public Rights -of-Way grade; construction, installation , or repair of sewers, drains, water pipes, power lines, signal lines, tracks , or any other type of government-owned communication system, public work , or improvement, or any government-owned utility; Public Rights -of-Way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the Network Facility.
6.5 In those areas and portions of the CITY where the transmission or distribution facilities of either a ll wireline public utility telephone corporation s or those of the utility providing electric service (in locations where no wireline public utility telephone corporation has aerial facilities), are underground or hereafter m ust be placed underground, then ENCROACHER shall likewise construct, operate , and maintain all of its Network Facilities underground, except for Facilities which by their nature are placed above ground (e.g., pedestals, pole risers). For the purposes of this subsection, "underground" shall include a partial underground system. The CITY shall not in any manner be responsible for any costs incurred by ENCROACHER in placing ENCROACHER's facilities underground. ENCROACHER may install new poles (subject to the approval of the pole owner and CITY) if another wireline telephone corporation would be permitted to install new poles at the same location.
6.6 If any portions of the Network Facilities covered under this Agreement other than redundant facilities or facilities for emergency use are no longer used or useful by ENCROACHER, or are abandoned for a period in excess of one (1) year, ENCROACHER shall notify CITY and shall either promptly vacate and remove the facilities at its own expense or, at the discretion of the City Engineer, may abandon some or all of the facilities in place and transfer ownership of those facilities to CITY. Notwithstanding the foregoing, this section shall not apply to Network Facilities installed to meet future demand or needs for capacity.
6.7 When removal or relocation is required under this Agreement. ENCROACHER shall, after the removal or relocation of the Network Facilities, at its own cost, repair and return the Public Right-of-Way in which the facilities were located to a safe and satisfactory 75 Item # C8.
9 condition comparable to or better to the condition of the Public Right-of-Way prior to the start of such removal or relocation work in accordance with the construction-related conditions and specifications as established by CITY consistent with applicable law. Before proceeding with removal or relocation work, ENCROACHER shall obtain an encroachment permit from the CITY prior to proceeding with any work. Should ENCROACHER remove the Network Facilities from the Public Right-of-Way, ENCROACHER shall, within ten (10) days after such removal, give notice thereof to CITY specifying the right-of-way affected and the location thereof as well as the date of removal.
6.8 In the event said Network Facilities are not removed or relocated within the timelines specified in any CITY notification, subject to force majeure events or events beyond the control of ENCROACHER, CITY may cause the same to be done at the sole expense of ENCROACHER.
SECTION 7
CONSTRUCTION PERMIT AND FEES
7.1 ENCROACHER shall obtain an encroachment permit (and such other permits as may be required) for all work and each job within the Public Right-of-Way.
ENCROACHER shall furnish detailed plans of the work and other such information as required by the City Engineer of CITY and shall pay all processing, field marking, engineering, and inspection fees prior to issuance of permit in accordance with the rates in effect at the time of payment.
7.2 Any encroachment permit shall set forth the description of the Network Facilities to be installed and the Public Right-of-Way in which such facilities are to be located. CITY may establish construction-related conditions and specifications in addition to those in this Agreement, and these shall also be set forth in the encroachment permit.
Following construction, ENCROACHER shall provide as -builts of the facilities and shall further notify Underground Service Alert (USA) of the location of the facilities.
7.3 In addition to any other remedies available in this Agreement or in applicable law, the failure to comply with the terms and conditions of this Agreement may, at CITY's sole discretion consistent with applicable law, result in withholding issuance of any new encroachment permits and/or other enforcement actions pursuant to Milpitas Municipal Code.
SECTION 8
PERFORMANCE BOND
8.1 Prior to the issuance of an encroachment permit and undertaking any of the work, installation, improvements, construction, repair, relocation , removal, or maintenance authorized by permits issued for Facilities under this Agreement, ENCROACHER shall cause to be furnished a bond executed by a corporate surety or financial institution authorized to do business in the State of California in the amount of 100% of the estimated total cost of the work to guarantee performance of ENCROACHER's obligations under this Agreement. The bond shall be conditioned so that ENCROACHER shall observe all the covenants, terms, and conditions and faithfully perform all of the obligations of this Agreement including removal and replacement of defective work or materials discovered in CITY's streets or property under any 76 Item # C8.
10 designated permits, normal wear and tear excepted as reasonably determined by the City .
This bond is to guarantee that the work is of good quality and free from any defective or faulty materials or workmanship and will remain in full force and effect for a period of one (1) year after inspection and acceptance of ENCROACHERS completed work.
ENCROACHER may meet the obligations of this subsection with one or more bonds acceptable to the CITY. In the event that a bond iss ued pursuant to this subsection is canceled by the surety, after proper notice and pursuant to the terms of said bond, ENCROACHER shall, prior to the expiration of said bond, procure a replacement bond which complies with the terms of this subsection.
8.2 So long as the bond is in place, it may be utilized by the CITY as provided herein for reimbursement to the CITY by reason of ENCROACHER's failure to pay the CITY for actual costs and expenses incurred by the CITY with respect to damages as a result of ENCROACHERS work and failure to complete repairs as may be directed by City under this Agreement. CITY shall provide notice to ENCROACHER of its intention to draw on the Bond at least fifteen (15) days prior to drawing against the bond during which time ENCROACHER shall have the opportunity to cure any failure to pay any amounts due.
8.3 In the event ENCROACHER has been declared by the CITY to be in default of a material provision of this Agreement relating to removal and if ENCROACHER fails, within 30 days of mailing of the CITY's default notice, to perform any of the conditions of this Agreement with respect to removal, or fails to begin to perform any such condition that may take more than thirty (30) days to complete, CITY may thereafter obtain from the bond, after proper claim is made to the surety, an amount sufficient to compensate the CITY for its damages. Upon such withdrawal from the bond, the CITY shall notify ENCROACHER in writing, by First Class Mail, postage prepaid, of the amount withdrawn and the date thereof.
8.4 Thirty (30) days after the CITY's mailing of notice of the bond forfeiture or withdrawal authorized herein, ENCROACHER shall deposit such further bond, or other security, as the CITY may require, which is sufficient to meet the requirements of this Agreement.
8.5 The rights reserved to the CITY with respect to any bond are in addition to all other rights of the CITY whether reserved by this Agreement or authorized by law, and no action, proceeding, or exercise of a right with respect to any bond shall constitute an election or waiver of any rights or other remedies the CITY may have.
SECTION 9
DAMAGE TO FACILITIES IN PUBLIC RIGHT -OF-WAY
9.1 ENCROACHER shall be responsible for any damage to CITY street pavements, existing utilities, curbs, gutters, sidewalks, and all other public or private facilities due to its construction, operation, installation, maintenance, repair, or removal of its Network Facilities in Public Right-of-Way or due to neglect of Network Facilities, and shall repair, replace and restore in kind the said damaged public and private facilities at its sole expense.
ENCROACHER shall complete all necessary repairs within thirty (30) days of notification by City Engineer.
77 Item # C8.
11 9.2 Any premature deterioration of surface and subsurface improvements, such as trench failures, pavement, base, or concrete failure over the facility or trench or adjacent area, or reduction in the life of the street or Public Right -of-Way as determined by City Engineer, normal wear and t ear excepted as may be determined by City Engineer , which results from ENCROACHER's acts or omissions shall be the responsibility of ENCROACHER. ENCROACHER shall complete all necessary repairs within thirty (30) days of notification by City Engineer. If EN CROACHER fails to make repairs within thirty (30) days of notice, CITY may have repairs made with the cost being billed to ENCROACHER. If the repair cannot fully reverse the deterioration or loss of life, the CITY may require ENCROACHER to pay for the dama ge suffered as a result.
SECTION 10
PARTICIPATION WITH OTHER UTILITIES
10.1 ENCROACHER agrees to cooperate , to the extent commercially reasonable, in the planning, locating , and constructing of its Network Facilities in utility joint trenches or common duct banks with other similar utilities providers and to participate in cost -sharing for the joint trench and ducts, when two or more telecommunications service providers are p roposing Network Facilities in the same Public Right-of-Way or when an underground project is being planned by CITY.
10.2 The requirements of this section shall not apply when ENCROACHER's excavation work is due to an emergency or other maintenance or repair event that requires urgent action , however, prior to starting emergency work, ENCROACHER shall contact the City Engineer during normal business hours to notify of said emergency work. If after normal business hours, ENCROACHER shall contact the City ’s Police Dispatch
SECTION 11
MAPS, RECORDS AND FIELD LOCATIONS
11.1 ENCROACHER shall maintain accurate maps and improvement plans of said Network Facilities located within the City of Milpitas. ENCROACHER shall, upon demand of the City Engineer, deliver to the Engineering Department free of charge within thirty (30) days after such demand, such maps and plans as may be required to show in detail the exact location, size, depth, and description of all Network Facilities installed within said Public Right-of-Way. ENCROACHER shall also submit the plan to CITY in digital electronic format as specified by CITY.
11.2 ENCROACHER shall be a member of USA, the regional notification center for subsurface installations, and shall field mark, at ENCROACHER’S sole expense, the locations of its underground Network Facilities upon notification in accordance with the requirements of Section 4216 of the State of California Government Code, as it now reads or may herein after be amended.
11.3 ENCROACHER shall provide books and records for copying and inspection by CITY, and ENCROACHER's facilities shall be subject to such inspection by the CITY, as the CITY finds appropriate to request in the exercise of its rights under this Agreement and its jurisdiction over ENCROACHER.
78 Item # C8.
12 SECTION 12
HOLD HARMLESS AND INDEMNIFICATION
12.1 ENCROACHER, jointly and severally, for itself, its successors, agents, and ENCROACHER's employees, agrees to indemnify, defend (with reasonable notice to ENCROACHER and with counsel reasonably acceptable to CITY) and hold harmless CITY, its officers, employees , and agents and any successors to CITY's interest from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all co sts and cleanup actions of any kind, all costs and expenses incurred in connections therewith, including, without limitation, reasonable attorney's fees and costs of defense (collectively, the "Losses") arising directly or indirectly out of ENCROACHER's and its employees’, contractors’ , or agents’ activities or Network Facilities described in this Agreement and/or the installation, construction, oper ation, maintenance, removal , and/or repair of the improvement and facilities thereto.
ENCROACHER shall indemn ify CITY for all of CITY’s costs, reasonable attorneys’ fees, and damages which CITY incurs in enforcing the indemnification provisions set forth herein. However, ENCROACHER shall not indemnify the CITY, its officers, employ ees, and agents and any successo rs to CITY's interest for Losses arising directly or indirectly, from the CITY's gross negligence or willful misconduct. CITY shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be d one by CITY, except for acts which constitute the CITY's gross negligence or willful misconduct, or by any third party, including, without limitation, damages, losses or liability arising from the issuance by the CITY of a permit or approval to any third party or any interruption in service.
12.2 ENCROACHER, for itself and its successors and assigns, hereby waives all claims and causes of action, whether now existing or hereafter arising, against CITY or its officers, agents or employees, for damages, physical or otherwise, to any of the facilities covered by this Agreement from any cause whatsoever excluding those arising as a result of the CITY's gross negligence or willful misconduct. Under no circumstances shall either Party be liable or responsible to the other Party for special, incidental, indirect, punitive, or consequential damages, whether foreseeable or not, including, without limitation, economic loss or lost profits, in connection with this Agreement or the Party’s performance or non- performance of its obligations under this Agreement, regardless of the form of action, whether under contract, warranty, tort, or otherwise, all claims for which are hereby specifically waived.
SECTION 13
INSURANCE
13.1 Types; Amounts. ENCROACHER shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). The insurance requirements set forth herein in no way limit the indemnity covenants contained in this Agreement . If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurr ence limit.
13.1.1 General Liability. ENCROACHER and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent 79 Item # C8.
13 form, with a combined single limit of not less than $1,000.000 per occurrence for bodily injury, personal injury, and property damage, and $2,000,000 general aggregate including premises-operations, products and completed operations, independent contractor, contractual liability, personal injury, and advertising injury.
13.1.2 Commercial Automobile Liability. ENCROACHER and its contractors shall procure and maintain commercial automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
13.1.3 Workers' Compensation. ENCROACHER and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 for each accident; $1,000,000 disease for each employee; $1,000,000 disease- policy limit, at all times during which insured retains employees.
13.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability.
13.1.5 Completed Operations. CITY, its elected officials, officers, employees, agents, and volunteers shall be added as an additional insured for completed operations utilizing ISO form CG 20 37, or its equivalent.
13.1.6. Contractors’ Pollution Legal Liability. ENCROACHER must maintain Contractors’ Pollution Legal Liability insurance with limits of $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. If any coverage required is written on a claims-made coverage form:
(1) The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
(2) Insurance must be maintained, and evidence of insurance must be provided for at least five years after completion of contract work. (3) 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, or start of work date, the ENCROACHER must purchase extended reporting period coverage for a
minimum of five (5) years after completion of contract work. 80 Item # C8.
14 (4) A copy of the claims reporting requirements must be submitted to the CITY for review.
13.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by CITY. At the option of CITY, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) ENCROACHER and its contractors shall provide a financial guarantee satisfactory to CITY guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
13.3 Additional Insured; Separation of Insureds. The Required Insurance shall name CITY, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of ENCROACHER or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to CITY, its elected officials, officers, employees, agents, and volunteers.
13.4 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self -insurance programs covering CITY, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance shall provide that the insurance company waives all right of rec overy by way of subrogation against CITY in connection with any damage or harm covered by such policy.
13.5 Certificates; Verification. ENCROACHER and its contractors shall furnish CITY with original certificates of insurance and endorsements effecting coverage for the Required Insurance annually. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by CITY before work pursuant to this Agreement can begin. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
13.6 Term; Cancellation Notice. ENCROACHER shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. ENCROACHER shall ensure any contractors who perform w ork for ENCROACHER in the Public Rights -of-Way also maintain the Required Insurance. ENCROACHER shall provide C ITY thirty (30) days prior written notice of the suspension, expiration, cancellation , or reduction below the minimums set forth in this Section 13 for all applicable policies. Such notice shall be sent directly to CITY at 455 East Calaveras Blvd, Milpitas, CA 95035, Attn: City Manager.
13.7 Insurer Rating. Unless approved in writing by CITY, all Required Insurance shall be placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VII or better.
SECTION 14
ASSIGNMENT
14.1 ENCROACHER shall not assign, sublet, or transfer any interest in this 81 Item # C8.
15 Agreement nor the performance of any ENCROACHER ’s obligations hereunder, without the prior written consent of CITY, which shall not be unreasonably withheld, and any attempt by ENCROACHER to so assign this Agreement or any rights, duties or obligations arising hereunder sh all be void and of no effect. The transfer of the rights and obligations of ENCROACHER to a parent, successor, subsidiary, or other affiliate (defined for the purposes of this section being any person or entity that, directly or indirectly, controls, is wh olly controlled or owned by, or is under common control with ENCROACHER) of ENCROACHER , shall not be deemed an assignment for the purposes of this section ; provided that ENCROACHER provides written notice of the transfer to CITY within thirty (30) days of such transfer . For the purposes of this section, the leasing or granting in the ordinary course of business of indefeasible rights of use or similar rights in dark fiber, fiber optic capacity, conduit , and other network elements shall not require the express consent of the CITY, so long as ENCROACHER remains solely responsible for locating, placing, installing, maintaining, relocating , and removing the Facilities.
SECTION 15
TERM AND TERMINATION
15.1 This Agreement shall terminate ten (10) years from the Effective Date unless renewed in writing prior to said termination date, except that this Agreement may be terminated sooner under the following circumstances and consistent with applicable law. a. This Agreement may be terminated by CITY upon approval of the City Engineer and at least thirty (30) days written notice to ENCROACHER if CITY reasonably determines that the provisions herein interfere with the use or disposal of said Public Right -of-Way or any part thereof by CITY. Where only a portion of
ENCROACHER's Network Facilities interferes with the use or disposal of said Public Right -of-Way, CITY shall allow ENCROACHER to relocate the said portion in accordance with this Agreement.
b. This Agreement may b e terminated by CITY for failure, neglect , or refusal by ENCROACHER to fully and promptly comply with any and all of the conditions of this Agreement, or for nonuse in accordance with Section 6.6 herein, upon thirty (30) days written notice, unless ENCROAC HER confirms with thirty (30) days of receipt of the notice that the cited condition has ceased, been corrected or, subject to CITY's agreement is diligently being pursued by ENCROACHER, which agreement shall not be unreasonably withheld.
c. This Agreement may be terminated by CITY if ENCROACHER’s Certificate of Public Convenience and Necessity terminates, is revoked, or is abandoned, upon ten (10) days written notice, unless ENCROACHER confirms with in ten (10) days of receipt of the notice that the cited co ndition has ceased, been corrected or, subject to CITY's agreement is diligently being pursued by ENCROACHER, which agreement shall not be unreasonably withheld .
82 Item # C8.
16 d. ENCROACHER may, in its sole discretion, provide thirty (30) days’ written notice to CITY that ENCROACHER elects to discontinue occupation of CITY Public Rights-of-Way and terminate the Agreement, subject to compliance with removal/abandonment requirements and other obligations that survive the termination of Agreement.
15.2 Upon termination of the Agreement, and upon written request by CITY, ENCROACHER, at its own cost and expense, agrees to remove, or at CITY's discretion, abandon in place some or all of its Network Facilities from the Public Right -of-Way and restore the Public Right -of-Way as set forth in the Removal and Relocation provisions of this Agreement. Should ENCROACHER in such event fail, neglect , or refuse to make such removals or restoration with one hundred eight (180) days of CITY's written request, at the sole option of CITY, such re moval and restoration may be performed by CITY at the expense of ENCROACHER, which actual expense , including administrative and legal costs ENCROACHER agrees to pay CITY upon demand. If C ITY allows ENCROACHER to abandon its Network Facilities in place, tit le to those Network Facilities shall pass to CITY and ENCROACHER shall, upon demand, promptly execute and deliver to CITY all documentation necessary to effectuate such transfer of ownership of the Network Facilities. Upon such transfer of ownership after abandonment and acceptance by CITY, ENCROACHER shall have no further obligations or liabilities under this Permit, with the exception of the repair obligations delineated in Section 9 above.
SECTION 16
HAZARDOUS MATERIALS USE
16.1 ENCROACHER covenants that it will not handle or transport Hazardous Materials on Network Facilities or the Public Right -of-Way. As used in this Agreement , the term “Hazardous Materials” means: (a) any substance, products, waste, or other material of any nature wha tsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the Resources Conservation and Recovery Act, 42 United S tates Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic Enfo rcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et se q.; California Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the California Porter -Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended (the above cited Californi a state statutes are hereinafter collectively referred to as “the State Toxic Substances Law”); or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liabilit y or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under a ny statutory or common law theory based on 83 Item # C8.
17 negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court; (c) petroleum or crude oil, other than petroleum and petroleum products which are c ontained within regularly operated motor vehicles; and (d) asbestos. In the event a Network Facility is now or in the future used in the handling or transporting of Hazardous Materials, ENCROACHER agrees fully to comply with all applicable federal, state, and local laws, rules, regulations, orders, decisions , and ordinances (hereinafter referred to as “Hazardous Materials Standards”) concerning Hazardous Materials. Encroacher further agrees that at CITY’s request it will furnish CITY with proof, satisfacto ry to CITY that ENCROACHER is in such compliance.
16.2 Notwithstanding anything else contained in this Agreement and to the extent permitted by law, in case of a breach of the obligations contained in this Section, ENCROACHER agrees to assume liability fo r and to save and hold harmless CITY from and against any and all injuries to any person, including wrongful death, and damage to property, including without limitation, property of CITY and ENCROACHER, and all related expenses, including without limitatio n reasonable attorneys’ fees, investigators’ fees, litigation expenses, and mitigation costs resulting in whole or in part from ENCROACHER’s failure to comply with any Hazardous Materials Standards issued by any governmental authority concerning Hazardous Materials. ENCROACHER, at its cost, shall assume the defense of all claims, in accordance with Section 12 hereof.
ENCROACHER agrees to reimburse CITY for all reasonable costs of any kind incurred as a result of the ENCROACHER’s failure to comply with thi s Section, including, but not limited to, judicial or administrative fines, penalties, clean -up and disposal costs, and reasonable legal costs incurred as a result of ENCROACHER’s handling, transporting, or disposing of Hazardous Materials on, over, or acr oss any Network Facilities and Public Right -of-Way.
SECTION 17
NOTICES
17.1 ENCROACHER's Network Operations Center shall be available to CITY staff 24 hours a day, 7 days a week, regarding problems or complaints resulting from the facilities installed pursuant to this Agreement and may be contacted by telephone at 877- 353-1695 regarding such problems or complaints. ENCROACHER shall promptly respond to such call(s) and perform the required repair or correct any adverse impact to CITY's use or operations or the use or operations of a third party caused by ENCROACHER's Network Facilit ies in the Public Right(s) -of-Way at no cost to CITY, except as otherwise set forth in this Agreement.
17.2 All notices given or which may be given pursuant to this Agreement shall be in writing and transmitted by United States mail or by private delivery systems if followed by United States mail or by private delivery systems as follows:
To CITY at:
City of Milpitas
455 E. Calaveras Blvd.
Milpitas, CA 95035-5411
Attn: Engineering Director/City Engineer
84 Item # C8.
18 To ENCROACHER at:
Mobilitie , LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
ATTN: Asset Management
With a copy to:
Mobilitie , LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
ATTN: Legal Department
SECTION 1 8
MISCELLANEOUS
18.1 This Agreement contains the entire understanding between the Parties with respect to the subject matter herein. There are no representations, agreements , or understandings (whether oral or written) between or among the Parties relating to the subject matter of this Agreement which are not fully expressed herein. This Agreement may be not amended exce pt pursuant to a written instruction signed by all Parties.
ENCROACHER and CITY agree to renegotiate this Agreement in good faith if required for CITY to comply with 47 U.S.C. 253, or any similar provision of state law. The provisions of this Agreement sha ll be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement is invalid or unenforceable, the remainder of this Agreement s hall not be affected by such invalidity or unenforceability.
18.2 The failure of either Party hereto to enforce any of the provisions of this Agreement, or the waiver thereof in any instance shall not be construed as a general waiver or relinquishment on its part of any such provision, but the same shall nevertheless be and remain in full force and effect.
18.3 Payments. If any payment due to CITY under this Agreement is not timely made, CITY may assess interest at a rate of ten percent (10%) per annum fro m the payment due date up until payment is made. In the event payment is not made within ninety (90) days of its due date , ENCROACHER shall be considered to have materially breached this Agreement . CITY’s exercise of its rights he reof shall not release ENC ROACHER from any liability or obligation hereunder, whether of indemnity or otherwise.
18.4 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or p roceeding brought to interpret or enforce this Agreement, or which in any 85 Item # C8.
19 way arises out of the Parties’ activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Santa Clara County, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, ENCROACHER expressly waives any right to have venue transfe rred pursuant to California Code of Civil Procedure Section 394.
18.5 This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. (signatures on next page)
86 Item # C8.
20 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate.
CITY OF MILPITAS
Approved By:
Steven G. McHarris, City Manager
Date
Approved As To Form:
Michael Mutalipassi, City Attorney
Approved:
Lauren Lai, CPA, MPA
Finance Director/Risk manager
Approved As To Content:
Steven Erickson, Engineering Director/City Engineer
MOBILITIE, LLC,
a Nevada limited liability company
By: Chris
Glass
Its: General
Counsel
87 Item # C8.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute a Sole Source One-Year Agreement with CentralSquare Inc. for Maintenance and Support of the Public Safety Computer Aided Dispatch System for the not-to-exceed amount of $129,264.92 (Staff Contact: Daniel Nam, Director of Information Technology, 408- 586-2712)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/20/2022
Recommendation: Approve and authorize the City Manager to execute a sole source one-year agreement with CentralSquare Inc. for maintenance and support of the Public Safety Computer Aided Dispatch System for the not-to-exceed amount of $129,264.92, pending final approval by City Attorney.
BACKGROUND:
City and Tritech Software Systems, Inc. entered into an agreement on October 21, 2003. Staff competitively evaluated different software packages for Computer Added Dispatching (CAD) software from a variety of different companies. Tritech Software Systems was determined to have the best price and service and has been the backbone of both the Police and Fire Main computerized dispatch systems since 2003. On July 24, 2018, TriTech was acquired by CentralSquare Inc. and the City has continued to rely on CentralSquare for the maintenance and support of the CAD software. The system is proprietary and only CentralSquare can provide the necessary annual software maintenance services to the system. The current software maintenance term expired on September 9, 2022. The software maintenance renewal is subject to annual agreement between the parties.
ANALYSIS:
Due to the extensive nature of such a large-scale implementation of a computer aided dispatch system, migration to a new CAD would be disruptive to both the Fire and Police Departments and not in the best interest of public safety. As such, staff believes continuing service with CentralSquare is in the best interest of the City. On December 23, 2020, the City's Purchasing Agent redesignated CentralSquare Inc. as the "Sole Source" provider of the TriTech CAD system and its maintenance in accordance with Municipal Code Section 1-2-3.06 "Sole Source Procurement." This designation is active for five (5) years ending on December 22, 2025.
Central Square has submitted Invoice #360923 in the amount of $129,264.92. Previously, the City did not have an agreement and instead, directly paid the invoice or used a standard purchase order (P.O.) template with terms and conditions for services. The City is continually evaluating its contracts and as this is a critical function and maintenance service, the City wishes to formalize this service with terms and conditions within a formal agreement. Staff requests Council authorization for the invoice amount of $129,264.92 to demonstrate the City’s intent with the vendor as Staff continues to finalize an agreement with mutually acceptable terms and conditions.
POLICY ALTERNATIVE(S):
Alternative 1: Do not authorize the City Manager to execute the Sole Source agreement with CentralSquare until the agreement is finalized.
Pros: This would ensure the agreement is presented for Council review before authorization.
88 Item # C9.
Cons: The vendor may decide to terminate the maintenance support for the Police CAD system as they have already submitted an invoice which remains unpaid. Terminating maintenance support would have an impact on the City’s public safety.
Reason for Not Recommending: Authorizing the City Manager to execute this sole source agreement would allow Staff to continue efforts to negotiate a timely agreement and ensure a fully functioning CAD systems, which is vital to delivery of police and fire services.
FISCAL IMPACT:
Funding for year one of this agreement is currently available in the existing Information Technology department operational budget. The maintenance cost of the City’s CAD system would be $129,264.92.
California Environmental Quality Act (CEQA):
Not applicable.
RECOMMENDATION:
Adopt a Resolution Authorizing the City Manager to Execute a Sole Source Annual Renewal Purchase Order with CentralSquare Inc. for Maintenance and Support of the Public Safety Computer Aided Dispatch System, pending negotiations and approval of the City Attorney.
Attachment(s):
1. Purchase Order with CentralSquare Inc.
2. Sole Source Request Form
89 Item # C9.
Invoice
CENTRALS
QUAREInvoiceNo(1ofl)DatePage
TECHNOLOGIES
3609238/8/20221of4
TritechSoftwareSystems,aCentralSquareCompany
1000BusinessCenterDrive
LakeMary,FL32746
BillingInquiries:[email protected]
BillToShipTo
Milpitas,CAMilpitas,CA
1DanieINamDanielNam
1265NorthMilpitasBoulevard1265NorthMilpitasBoulevard
MilpitasCA95035MilpitasCA95035
UnitedStatesUnitedStates
CustomerNoCustomerNameCustomerP0#CurrencyTermsDueDate
12635Milpitas,CAUSDNet309/7/2022
DescriptionUnitsRateExtended
ContractNo.Q-106598
1EscrowFee-AnnualSubscriptionFee1$950.00$950.00
Maintenance:Start:9/1/2022,End:8/31/2023
2InformMobileMappingAnnualMaintenanceFee-Annual51$28.26$1,441.26 MaintenanceFee
MobileMappingSupportFees
Maintenance:Start:9/1/2022,End:8/31/2023
3InformCADPositionAnnualMaintenanceFee-Annual6$3,365.11$20,190.66 MaintenanceFee
VisiCADCommandPublicSafetyFull-UserLicense***
Maintenance:Start:9/1/2022,End:8/31/2023
4InformCADQuickestPathModuleAnnualMaintenanceFee-1$4,206.39$4,206.39 AnnualMaintenanceFee
VisiCADLiveRoutingLicense
Maintenance:Start:9/1/2022,End:8/31/2023
5InformCADTheGiSLinkUtilityPositionAnnualMaintenanceF-2$2,804.27$5,608.54 AnnualMaintenanceFee
GISLink/VisiCADMaplmportUtility
Maintenance:Start:9/1/2022,End:8/31/2023
6InformCADPositionAnnualMaintenanceFee-Annual1$1,402.13$1,402.13 MaintenanceFee
VisiCADMultiAgency
Maintenance:Start:9/1/2022,End:8/31/2023
7InformCADPositionAnnualMaintenanceFee-Annual1$2,103.19$2,103.19 MaintenanceFee
VisiCADMultiassign
Maintenance:Start:9/1/2022,End:8/31/2023
8EventPlayback(GISPlayback)ModuleAnnualMaintenanceFee1$1,402.13$1,402.13 -AnnualMaintenanceFee
VisiCADPlayback
Maintenance:Start:9/1/2022,End:8/31/2023
90 Item # C9.
Invoice
CENTRALSQUAREInvoiceNo(1of1)DatePage
TECHNOLOGIES
3609238/8/20222of4
TritechSoftwareSystems,aCentraiSquareCompany
1000BusinessCenterDrive
LakeMary,FL32746
BillingInquiries:[email protected]
BiliToShipTo
Milpitas,CAMilpitas,CA
1DanielNamDanielNam
1265NorthMilpitasBoulevard1265NorthMilpitasBoulevard
MilpitasCA95035MilpitasCA95035
UnitedStatesUnitedStates
CustomerNoCustomerNameCustomerP0#CurrencyTermsDueDate
12635Milpitas,CAUSDNet309/7/2022
DescriptionUnitsRateExtended
9CentraiSquareMessageSwitchAnnualMaintenanceFee-1$1,402.13$1,402.13 AnnualMaintenanceFee
VisiCADQueryMessageSwitch
Maintenance:Start:9/1/2022,End:8/31/2023
10InformCADtheArchiveServerSoftwareAnnualMaintenanceFe1$5,608.52$5,608.52 -AnnualMaintenanceFee
VIsICADArchiveLicenseDataPurging&SQLReplication
Maintenance:Start:9/1/2022,End:8/31/2023
11InformCADRotationProviderAnnualMaintenanceFee-Annual1$140.21$140.21 MaintenanceFee
VisiCADRotation
Maintenance:Start:9/1/2022,End:8/31/2023
12InformCADTestorTrainingSystemAnnualMaintenanceFee-1$2,805.54$2,805.54 AnnualMaintenanceFee
VisiCADTraining/TestServer
Maintenance:Start:9/1/2022,End:8/31/2023
13StandardAlphaNumericPagingInterfaceAnnualMaintenanceF1$2,523.82$2,523.82 -AnnualMaintenanceFee
StandardAlpha-NumericPagingInterfaceLicense
Maintenance:Start:9/1/2022,End:8/31/2023
14InformMobileBasePositionAnnualMaintenanceFee-Annual1$14,021.28$14,021.28 MaintenanceFee
VisiNetMobileApplicationsServerLicense
Maintenance:Start:9/1/2022,End:8/31/2023
15InformMobileBasePositionAnnualMaintenanceFee-Annual50$193.48$9,674.00 MaintenanceFee
VisiNetmobileClientLicense***
Maintenance:Start:9/1/2022,End:8/31/2023
16InformMobileMappingAnnualMaintenanceFee-Annual50$84.14$4,207.00 MaintenanceFee
VisiNetMobileMappingClientLicense
Maintenance:Start:9/1/2022,End:8/31/2023
91 Item # C9.
Invoice
CENTRALSQUAREInvoiceNo(1of1)DatePage
TECHNOLOGIES
3609238/8/20223of4
TritechSoftwareSystems,aCentraiSquareCompany
1000BusinessCenterDrive
LakeMary,FL32746
BiNingInquiries:[email protected]
BiliToShipTo
Milpitas,CAMilpitas,CA
DanielNamDanielNam
1265NorthMilpitasBoulevard1265NorthMilpitasBoulevard
MilpitasCA95035MilpitasCA95035
UnitedStatesUnitedStates
CustomerNoCustomerNameCustomerP0#CurrencyTermsDueDate
12635Milpitas,CAUSDNet309/7/2022
DescriptionUnitsRateExtended
17StandardStationAlertInterfaceAnnualMaintenanceFee-1$8,412.76$8,412.76 AnnualMaintenanceFee
LocutionStationAlert/PrinterInterfaceLicense(Centralized) Maintenance:Start:9/1/2022,End:8/31/2023
18NCIC/StateMessageSwitchSoftware-InformCAD/InformMobil1$4,206.39$4,206.39 -AnnualMaintenanceFee
InterfacestoCLETS/SLETS/NCIC
Maintenance:Start:9/1/2022,End:8/31/2023
19StandardANI/ALIInterfaceAnnualMaintenanceFee-Annual1$5,608.52$5,608.52 MaintenanceFee
StandardE-9-1-1WithTDDInterfaceLicense
Maintenance:Start:9/1/2022,End:8/31/2023
20MessageSwitchManagerAnnualMaintenanceFee-Annual1$1,402.13$1,402.13 MaintenanceFee
MessageSwitchManager
Maintenance:Start:9/1/2022,End:8/31/2023
21InformCADIntegratedSolutionAnnualMaintenanceFee-1$8,412.76$8,412.76 AnnualMaintenanceFee
AetherFireRMSClosed-RecordDownloadLicensew/Personnel
andRosterIntegration
Maintenance:Start:9/1/2022,End:8/31/2023
22StdInformCADtoInformCADBasicInterface(singleside)A-1$7,140.78$7,140.78 AnnualMaintenanceFee
StandardVisiCADtoCADInterfaceLicense
Maintenance:Start:9/1/2022,End:8/31/2023
23InformCADPositionAnnualMaintenanceFee-Annual1$8,412.76$8,412.76 MaintenanceFee
VisICADCommandPublicSafetyDatabaseServerLicense
Maintenance:Start:9/1/2022,End:8/31/2023
24InformCADPositionAnnualMaintenanceFee-Annual1$1,402.13$1,402.13 MaintenanceFee
V1siCADBOLOLicense
Maintenance:Start:9/1/2022,End:8/31/2023
92 Item # C9.
Invoice
CENTRALSQUAREInvoiceNo(1of1)DatePage
3609238/8/20224of4
TritechSoftwareSystems,aCentraiSquareCompany
1000BusinessCenterDrive
LakeMary,FL32746
BillingInquiries:[email protected]
BilIToShipTo
Milpitas,CAMilpitas,CA
DanielNamDanielNam
1265NorthMilpitasBoulevard1265NorthMilpitasBoulevard
MilpitasCA95035MilpitasCA95035
UnitedStatesUnitedStates
CustomerNoCustomerNameCustomerP0#CurrencyTermsDueDate
12635Milpitas,CAUSDNet309/7/2022
DescnptionUnitsRateExtended
25InformCADMappingAnnualMaintenanceFee-Annual10$17.64$176.40 MaintenanceFee
CADMappingSupportFees
Maintenance:Start:9/1/2022,End:8/31/2023
26InformCADPositionAnnualMaintenanceFee-Annual1$1,402.13$1,402.13 MaintenanceFee
VisiCADR-Check
Maintenance:Start:911/2022,End:8/31/2023
27InformCADMappingTestorTrainingAnnualMaintenanceFee-4$126.42$505.68 AnnualMaintenanceFee
InformCADMappingTestorTraining
Maintenance:Start:9/1/2022,End:8/3112023
28TomTomStreetGISData(EnterpriseMobileOn-Prem)Annual56$52.74$2,953.44 SubscriptionFee-AnnualSubscriptionFee
Maintenance:Start:9/1/2022,End:8/31/2023
29TomTomStreetGISData(EnterpriseCAD/RMSOn-Prem)56$27.54$1,542.24 AnnualSubscriptionFee-AnnualSubscriptionFee
Maintenance:Start:9/1/2022,End:8/31/2023
Pleaseincludeinvoicenumber(s)onyourremittanceadvice,Subtotal$129,264.92 madepayabletoTritechSoftwareSystems
Tax$0.00
ACH:
RoutingNumber121000358
AccountNumber1416612641InvoiceTotal$129,264.92
E-mailpaymentdetailsto:Accounts.ReceivabIeCentralSquare.com PaymentsApplied$0.00 Check:
12709CollectionCenterDrive
Chicago,IL60693BalanceDue$129,264.92
93 Item # C9.
COM 04/30/2020
X
CITY OF MILPITAS
SOLE SOURCE REQUEST
THIS FORM MUST BE COMPLETED AND APPROVED PRIOR TO ANY PROCUREMENT
When a request is made for a non-competitive procurement and the specification limits the bidding to one source and/or one brand or trade name, the requesting department must complete the following. Please answer in the space provided, or in an attachment address by specific reference, each question listed below (1 -5) in your justification. Be sure to answer each part of each question. Failure to respond fully to any of the questions could result in delay or rejection of your request due to inadequate justification.
1. Using appropriate detail, including brand name and model number, briefly describe the product you wish to procure. In the case of a service use enough detail to clearly describe to someone not familiar with the process what you are procuring.
IT is request ing a sole source procurement to purchase `Upgrade/re -host' services from CentralSquare. This migration of the current 9 -1-1 Computer -Aided -Dispatch(CAD) system is a required step to stay within the recommended maintenance cycle, and to replace the aging existing hardware.
2. Please check one: Cost: $ $27,900.00
a) SOLE SOURCE: Item is available from one source only.
If it is your assertion that the manufacturer or distributor is the only authorized source in the Bay Area, Northern California; or whatever the claim is; please substantiate that with a letter from the manufacturer or distributor. The letter must be on their stationary but can be sent via email. Attach a copy to this form.
b) STANDARDIZATION REQUEST: The Department requires the item to standardize parts, design, quality etc. (This requires further discussion with the Purchasing Agent.)
3. What are the unique performance features of the product/brand requested that are not available in any other product/brand? (For services: What unique qualifications, rights, degrees, certifications, licenses and/or experience does this vendor possess?)
CentralSquare is the sole provider for re-hosting(`migrating) the current system to the new hardware platform. CentralSquare is also the manufacturer, and a sole provider that have the knowledge of the existing 9-1-1 CAD system.
4. What other products/services have been examined and rejected, and why? (Please provide a specific meaningful explanation, one vendor and one feature at a time. For products be sure to clearly identify the product by name and model number and include the name, address, and tel ephone number of the company representative who’s product you tested.)
This upgrade/migration service requires highly specific knowledge and skills related to the CentralSquare Inform 9-1-1 CAD system. This service is provided solely be the manufacturer.
DocuSign Envelope ID: B1E0F88F-CBCA-4917-BE9A-71803FC103CF 94 Item # C9.
COM 04/30/2020
5. If justification is based on matching and/or intermixing with existing equipment (refer to 2.c.), list the quantity, manufacturer, brand, and model of the existing equipment, and why the matching is required not simply preferred.
I HEREBY CERTIFY THAT:
1. I am an approved department representative and am aware of the City's requirements for competitive bidding, as well as the criteria for justification for sole source procurements.
2. I have gathered the required technical information and have made a conce ntrated effort to review comparable and/or equal equipment/service.
3. There is validity as to the information contained herein justifying my request for sole source procurement and meeting the City's criteria.
4. A sole source procurement in this case would withstand a possible audit or a vendor's protest.
REQUESTOR: ___________________________________ DATE: _________
DEPT./DIV. HEAD: _____________________________ DATE: _________
PURCHASING DIVISION USE ONLY:
APPROVED Yes No
PURCHASING AGENT: ___________________________ DATE: _________
RISK MANAGER/
DIRECTOR OF FINANCE: ___________________________ DATE: _________
COMMENTS:
DocuSign Envelope ID: B1E0F88F-CBCA-4917-BE9A-71803FC103CF Dec-18-2020
Dec-23-2020
Dec-23-2020
Dec-23-2020
95 Item # C9.
COM 04/30/2020
SOLE SOURCE REQUEST
A. OVERVIEW
Purchasing recognizes that departments often invest a great deal of time and effort in selecting a source or brand, prior to submitting a requisition to Purchasing. Even though the departmental review process prior to the submittal of a requisition may be sound, the lack of effective communication between the Buyer and the requesting department can lead to lost time in completing the acquisition of a product or service.
Likewise, Purchasing can be an effective partner in a competitive review process given adequate time and involvement in your requirement definition.
In an effort to expedite sole source requisitions th rough Purchasing, you are directed to review the Sole Source Request form herein. If you feel your request meets the criteria, follow the instructions in filling out the form and attach it to your requisition. If the sole source justification is accepted by Purchasing, the requisition can be expedited without the normal bidding requirements.
This is an internal City review process. Departments are directed to use discretion in their discussion with vendors so as to not compromise any competitive advantage that Purchasing may utilize; in the event the sole source justification is rejected.
Rather than merely a shift of the review burden, this process acknowledges the significant effort a department may undertake when identifying a vendor or brand and provides you with the method by which to make your requisitioning efforts more efficient under sole source conditions.
It will also remain our responsibility to advise you when a particular competitive review process may both serve the City better and/or be required by the City’s governing ordinance.
In order for Purchasing to accept a request for sole source/sole brand, the certification form referenced herein, must be made a part of your justification and be signed by authorized department representative(s). The form will remain on file for audit purposes.
B. PROCEDURE
Sole source procurements are an exception to the normal procurement function and require a detailed justification. In processing sole source requests for supplies, services and/or equipment, Purchasing adheres to and is governed by the principles set forth in City of Milpitas Municipal Code Section I-2-3.09 Sole Source Procurement as approved by the City Council.
If you are requesting a particular vendor, brand or product, you must make this fact clear on your requisition. Your request will then be restrictive and non-competitive and will fall into a sole source category.
Such a request should not be made unless you are confident that your request is reasonable and appropriately justified to meet the City’s requirements and withstand any possible audit. The City’s requirements and the format for submitting such requests are contained herein. Please make copies of the Sole Source Request form for your future use.
The following factors DO NOT apply to sole source requests and should not be included in your sole source justification. They will not be considered and only tend to confuse the evaluation process.
DocuSign Envelope ID: B1E0F88F-CBCA-4917-BE9A-71803FC103CF 96 Item # C9.
COM 04/30/2020
1. Personal preference for product or vendor.
2. Cost, vendor performance, and local service (these are generally considered award factors in competitive bidding).
3. Features which exceed the minimum department requirements.
4. Explanation of the need and/or basic use for the equipment, unless the information relates to a request for “unique factors” (refer to question 3 from the Sole Source Request form). In other words, don’t say you want a tree trimmer so you can trim trees, instead explain why this particular trimmer with these exact performance specifications is the only one that will meet your need.
5. A request for “no substitution” submitted without justification. This is just a sole source request without justification.
DocuSign Envelope ID: B1E0F88F-CBCA-4917-BE9A-71803FC103CF 97 Item # C9.
CentralSquare Technologies, LLC
1000 Business Center Drive
Lake Mary, FL 32746
December 11, 2020
Milpitas Police Department
1265 North Milpitas
Milpitas, CA 95035
To Whom It May Concern:
This letter is in response to Milpitas Police Department’s request for a sole source letter from our company.
This letter is to confirm that CentralSquare Enterprise Rehost Services are a sole source product, manufactured, sold, serviced, and distributed exclusively by CentralSquare Technologies, LLC (CentralSquare). This product must be purchased directly by institutions from CentralSquare at the address listed above. There are no agents or dealers authorized to resell this product. CentralSquare Enterprise Rehost Services are sold only as a direct transaction between CentralSquare and end Clients.
Sincerely,
Brian Pagels
Vice President of Sales, Public Safety & Justice
CentralSquare Technologies
DocuSign Envelope ID: 004C6B13-1F15-4514-918E-3732A69DA965 DocuSign Envelope ID: B1E0F88F-CBCA-4917-BE9A-71803FC103CF 98 Item # C9.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Authorize and Approve Travel to Anaheim, CA for City Manager Steve McHarris to Attend the Annual Conference of the American Planning Association – California Chapter – to be held October 1 – 4, 2022. (Staff contact: Ashwini Kantak, Assistant City Manager, 408-586-3053)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/20/2022
Recommendation: Authorize and approve travel to Anaheim, CA for City Manager Steve McHarris to attend the Annual Conference of the American Planning Association – California Chapter – to be held October 1 – 4, 2022, for an estimated not-to-exceed amount of $2,500 budgeted under Conferences/Trainings allocation for the City Manager’s Office.
BACKGROUND:
The American Planning Association (APA) – California Chapter – annual conference offers attendees an abundance of education, innovative ideas, information-sharing, and practical strategies for managing local government in today’s complex American Planning world while also providing countless opportunities for professional and personal growth and networking. This year’s conference will be in Anaheim, CA from October 1 – 4, 2022, and with “Celebrating CommUNITY” as its theme, recognizing the hard-won victories and achievements in planning that required collaboration, cooperation, and creative problem solving to navigate the last few years.
ANALYSIS:
The City of Milpitas Travel and Expense Policy requires approval of travel for elected officials and the City Manager by the City Council. Council approval of this request will allow City Manager McHarris to travel to Anaheim, CA to represent the City and to maintain his Professional Planning certification, consistent with his employment agreement. Attendance at the conference will also offer the City Manager the opportunity to garner additional knowledge from other city and county administrators and to share knowledge with the City organization.
The total conference registration fee is $625.00 per attendee. Additional costs will include accommodations for a three-night hotel stay which is estimated at $570.00 (excluding hotel taxes/fees); meals estimated at $100.00; air travel fee is $157.96; ground transportation, and any other related conference costs. The total estimated cost for the City Manager to attend the conference is approximately $2,500.00 and will be covered by budgeted amounts in the FY 2022-23 Adopted Budget.
POLICY ALTERNATIVE(S):
Not applicable
FISCAL IMPACT:
The estimated expenses for the conference in Anaheim, CA are $2,500.00 (registration, transportation, and hotel). Sufficient funds are available in the City Manager’s Office allocation of $15,000 for the Conferences / Trainings budget to pay for the requested travel expenses. As of September 13, 2022, the balance in account 4503 for training and registration is about $13,000.
California Environmental Quality Act (CEQA):
By the definition provided in the California Environmental Quality Act (CEQA) Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA. 99 Item # C10.
RECOMMENDATION:
Authorize and approve travel to Anaheim, CA for City Manager Steve McHarris to attend the Annual Conference of the American Planning Association – California Chapter – to be held October 1 – 4, 2022, for an estimated not-to-exceed amount of $2,500 budgeted under Conferences/Trainings allocation for the City Manager’s Office.
Attachment(s):
Attachment 1: 2022 American Planning Association – California Chapter – Annual Conference Schedule 100
Item # C10.
CONFERENCE-AT-A-GLANCE
Saturday, October 1
The Conference-at-a-Glance is subject to change.
The most current information can be found on the conference website, on the mobile app prior to the conference, and in the registration area when the conference begins.
Mobile Workshops Student S essions/Events Special E vents P lanners4Health M ini-Conference Members can earn certification credits for many activities at the conference. A notation has been made next to each creditable session/event indicating the number of pending certification credits. 7:00 am - 8:00 am Continental Breakfast Marquis Ballroom 7:00 am - 6:00 pm Registration Platinum Foyer
8:00 am - 6:00 pm Exhibits Open Marquis Ballroom Center/South 8:00 am - 9:30 am Opening Keynote: Bringing the Magic to Life with CM | 0.5 Platinum 5/6 Virtual Option Walt Disney Imagineering
Travis Finstein, Assistant Producer, Creative Writing and Production Stephanie Murray, Master Planner Principal: Design + Planning 9:00 am - 12:00 pm MW#2: The Future of OC Parks - Mile Square Regional Park CM | 3.0 Meet outside the Additional $30 fee applies. Marriott Lobby at 8:45 am
CONFERENCE-AT-A-GLANCE
Sunday, October 2
8:00 am - 6:00 pm Registration Platinum Foyer
9:00 am - 1:00 pm Headshots Elite Ballroom 3
10:00 am - 5:00 pm Exhibitor Set Up Marquis Ballroom Center/South 11:00 am - 12:00 pm Planners4Health Opening Plenary: Trauma Informed CM | 1.0 Orange County Planning and Design Ballroom 1/2
12:00 pm - 1:00 pm California Planning Foundation Awards Luncheon (students only) Grand Ballroom A/D 1:00 pm - 2:15 pm Meet the Candidates! APA California Chapter Board Elections 2022 Marquis Ballroom NE 1:00 pm - 2:30 pm LA County Green Zones Program: Environmental Justice CM | 1.0 | EQUITY Grand Ballroom G/K and Healthier Communities
Class is in Session: A 101 Introductory Workshop to SB 1000 CM | 1.5 Platinum 7/8 Getting the Job: The Resume Platinum 3/4
Planners4Health in Action: Reaffirming Our Roll in the CommUNITY CM | 1.5 | EQUITY Platinum 9/10 What Students Want to Know! (CPF Session) Platinum 1/2
2:45 pm - 3:45 pm An Equity and Parks Success Story: Park Renewal and CM | 1.0 | EQUITY Platinum 3/4 Reinvestment in Fresno
Environmental Justice Planning, Policy, and Organizing CM | 1.0 | EQUITY Platinum 9/10 in California
Community Health Matters CM | 1.5 | EQUITY Platinum 7/8 Future Leadership Now CM | 1.0 Platinum 1/2
Getting Teens to the Table: Partnerships for Youth Engagement CM | 1.0 Grand Ballroom G/K What's Next? A Discussion of Careers in Planning for Student Grand Ballroom A/D and Young/Emerging Planners
4:00 pm - 5:30 pm MW#1: OC Streetcar Guided Tour CM | 1.0 Meet outside the Additional $15 fee applies. Limited to students, YEP and TPD members only. Marriott Lobby at 3:45 pm 4:30 pm - 6:30 pm APA California Diversity Summit CM | 2.0 | EQUITY Platinum 5/6 Virtual Option The Disturbing Legacy of California’s Sundown Towns 6:00 pm - 8:00 pm Joint Students, YEP and Transportation Planning Division Mixer Pizza Press, 117 W. 4th St., Santa Ana 7:00 pm - 9:00 pm Planning Leadership Academy Reception (by invitation only) Platinum Patio ATTACHMENT 1
101
Item # C10.
CONFERENCE-AT-A-GLANCE
Sunday, October 2
The Conference-at-a-Glance is subject to change.
The most current information can be found on the conference website, on the mobile app prior to the conference, and in the registration area when the conference begins.
Mobile Workshops Student Sessions/Events Special Events 9:45 am - 10:15 am Applying an Equity Lens to Hazard Mitigation Planning CM | 0.5 Platinum 9/10 Are Connected Vehicles The Next Big Thing in Big Data? CM | 0.5 Orange County Ballroom 1/2 Bikeways and the Virtuous Cycle CM | 0.5 Platinum 1/2 Cottage Housing-Another Missing Middle Option for Small CM | 0.5 Grand Ballroom A/D and Medium Sized Cities
Getting to the Root of It – Planning for Trees to Create CM | 0.5 Grand Ballroom G/K Resilient Communities
Poking at COVID Travel Data Like a Lab Rat to Produce CM | 0.5 Platinum 3/4 Better Models
Suburban Reinvention: Imagining the 15-Minute City CM | 0.5 Platinum 7/8 in California
Success Begins With the RFP CM | 0.5 Orange County Ballroom 3/4 Virtual Option Talk Less, Draw More! CM | 0.5 Platinum 5/6 10:00 am - 2:00 pm MW#3: Renaissance of a Community through Placemaking CM | 4.0 Meet outside the and Permanent Supportive Housing. Additional $40 fee applies. Marriott Lobby at 9:45 am 10:30 am - 11:30 am Accelerating Sustainability with LEED for Cities CM | 1.0 | S/R Platinum 7/8 Virtual Option Planning with Purpose (Ethics Keynote) CM | 1.0 | ETHICS Platinum 5/6 Decoding the Vertiport: Ground Planning for Urban Air Mobility CM | 1.0 Platinum 3/4 Housing Element Boot Camp CM | 1.0 Platinum 1/2 Implementing a Community-Driven Equity Program: CM | 1.0 | EQUITY Orange County Lessons Learned from the US 101 Express Lanes Ballroom 1/2 Norwalk Transit Village: Creating a Successful Public-Private CM | 1.0 Orange County Ballroom 3/4 Partnership
The Unrealized Potential of Housing Element Annual CM | 1.0 Grand Ballroom A/D Progress Reports
Tools and Tactics for Tricky Twists in Community Outreach CM | 1.0 Grand Ballroom G/K Warehouse A-Ware-Ness: Planning for and Processing CM | 1.0 Platinum 9/10 Warehouse Developments
Passing the AICP Exam: Who Wants to be a Certified Planner? Elite Ballroom/ Collaboration Room
12:00 pm - 1:00 pm Planning Commissioners Luncheon Grand Ballroom A/D 12:00 pm - 2:00 pm California Planning Roundtable Meeting (CPR) Gold Key I/II 1:15 pm - 2:45 pm A Deep Dive into Defensible Mitigation CM | 1.5 | LAW Platinum 3/4 Plan for Recovery: Be Prepared When Disaster Strikes CM | 1.5 | S/R Platinum 1/2 Got RHNA. Now What? CM | 1.5 Platinum 7/8 Lessons from the Planning and Development of Irvine Ranch, CM | 1.5 Orange County Ballroom 3/4 1937-1977
New Paradigms in Community Engagement: Virtual CM | 1.5 | EQUITY Platinum 9/10 Ground Truthing and Equitable Partnerships
Planning for Management: Leadership Lessons from a CM | 1.5 Grand Ballroom G/K Former Disney CEO
Reading the Landscape: New Books on Planning & Cities CM | 1.5 Orange County Ballroom 1/2 Virtual Option SB 743 in Practice: Let’s Play High, Low, Buffalo CM | 1.5 Platinum 5/6 1:15 pm - 4:45 pm Video Production for Planners CM | 3.5 Grand Ballroom A/D S/R - Sustainability/Resilience
102
Item # C10.
7:00 am - 6:00 pm Registration Platinum Foyer 8:00 am - 9:00 am Continental Breakfast Marquis Ballroom 8:00 am - 6:00 pm Exhibits Open Marquis Ballroom Center/South 8:30 am - 9:30 am Climate Resilience: A Partnership Among the City CM | 1.0 | S/R Platinum 1/2 of Anaheim, County of Los Angeles and SoCalGas
Developing and Implementing Public Policy for Regulated CM | 1.0 Orange County Ballroom 3/4 Cannabis - Where Do We Go From Here?
Virtual Option Housing Regulations Trivia Game! CM | 1.0 | LAW Platinum 7/8 Leveraging Innovation Districts to Support Inclusive and CM | 1.0 | EQUITY Platinum 3/4 Equitable Economic Development
Planning with Compassion. Overcoming Hurdles for CM | 1.0 Platinum 9/10 Emergency Homeless Housing
Transitioning to Objective; Avoiding Objectionable CM | 1.0 Grand Ballroom A/D Women in Planning: Working for Change CM | 1.0 | EQUITY Orange County Ballroom 1/2
8:30 am - 10:45 am Dream, Play, Build: Workshop CM | 2.25 Grand Ballroom G/K 9:00 am - 1:00 pm MW#6: TOD, Adaptive Reuse, and Real Infill Finally CM | 4.0 Meet outside the Come to OC Additional $40 fee applies. Marriott Lobby at 8:45 am 9:45 am - 10:45 am Beyond City Boundaries: A Regional Approach to Accelerating CM | 1.0 Platinum 1/2 Housing Production
Connecting Paradise CM | 1.0 | EQUITY Grand Ballroom A/D Driving Success: Developing and Implementing VMT CM | 1.0 Orange County Ballroom 1/2 Mitigation Programs
CONFERENCE-AT-A-GLANCE
Sunday, October 2
The Conference-at-a-Glance is subject to change.
The most current information can be found on the conference website, on the mobile app prior to the conference, and in the registration area when the conference begins.
Mobile Workshops Student Sessions/Events Special Events 1:30 pm - 4:30 pm MW#4: ROASTED: Come Discover the Best Coffee Experiences CM | 4.0 Meet outside the in Garden Grove. Additional $40 fee applies. Marriott Lobby at 1:15 pm 3:15 pm - 4:45 pm Balancing Congestion Relief and Induced VMT CM | 1.5 Orange County Ballroom 3/4 Virtual Option 2022 Legislative Update CM | 1.5 | LAW Platinum 5/6 An Outsider’s View on Urban Mobility Futures in Greater CM | 1.5 Orange County Ballroom 1/2 Los Angeles
APA California Sections Speak on Housing: Report and CM | 1.5 Platinum 7/8 Findings from the California Planning Roundtable
Centering Community: Embedding Equity in Planning CM | 1.5 | EQUITY Grand Ballroom G/K and Land-Use Development
Exurban Shift: Community Outmigration in the New Normal CM | 1.5 Platinum 9/10 A Murder Mystery Party: Who Killed the Low-Income CM | 1.5 Platinum 1/2 Housing Proposal
Tackling the Housing Crisis: Repurposing Aging Commercial CM | 1.5 Platinum 3/4 Centers into Mixed-Use Villages
3:30 pm - 6:00 pm MW#5: Anaheim Foodie and Brew Tour CM | 2.0 Meet outside the Additional $40 fee applies. Marriott Lobby at 3:15 pm 6:30 pm - 9:30 pm Opening Reception: Magic at the MUZEO Museum and Cultural Center Buses will begin service at 5:45 pm outside the Marriott Lobby
CONFERENCE-AT-A-GLANCE
Monday, October 3
S/R - Sustainability/Resilience
103
Item # C10.
9:45 am - 10:45 am Incentive-Based Commute Program for Essential Transit Workers CM | 1.0 Platinum 9/10 Virtual Option Learning Early Planning Activities from CA Indigenous CM | 1.0 Platinum 7/8 Populations
Other To Residential: A Step-By-Step Guide to Converting CM | 1.0 Platinum 3/4 Underutilized Non-Residential Land To Homes
Water Equity and Resiliency in Tribal Communities and CM | 1.0 Orange County Ballroom 3/4 Underrepresented Communities
10:00 am - 2:00 pm MW#7: Road to Summer CM | 4.0 Meet outside the Additional $40 fee applies. Marriott Lobby at 9:45 am 10:00 am - 2:30 pm MW#8: Bring on the Goats/Fuel Mod CM | 4.0 Meet outside the Additional $115 fee applies. Marriott Lobby at 9:45 am 11:00 am - 12:00 pm Planner Emeritus Networking Meeting (PEN) CM | 1.0 Gold Key I/II Become a PRO – Workshop on PROhousing Designation and CM | 1.0 Grand Ballroom A/D 6th Cycle Housing Element PROgram Ideas
Survey Says! Combine Your Resources CM | 1.0 Grand Ballroom G/K Innovative Mobility Strategies for Building Equitable CM | 1.0 | EQUITY Orange County Communities Ballroom 1/2 Embracing and Implementing AB 686 Affirmatively Furthering CM | 1.0 Orange County Ballroom 3/4 Fair Housing
Inclusive Planning for Racially Complex Ethnic Enclaves CM | 1.0 | EQUITY Platinum 1/2 Just Transition: Navigating a Complex Path Toward a More CM | 1.0 | S/R Platinum 3/4 Sustainable Economy
Virtual Option Walt Disney’s Great Big Beautiful Tomorrows CM | 1.0 Platinum 7/8 Bridge the Digital Divide in Your Community/Region CM | 1.0 | EQUITY Platinum 9/10 12:00 pm - 1:30 pm Networking Luncheon Platinum 5/6 1:00 pm - 5:00 pm MW#9: Old Town Orange CM | 4.0 Meet outside the Additional $50 fee applies. Marriott Lobby at 12:45 pm 1:00 pm - 5:30 pm MW#10: Who Needs Parking: How Laguna Beach Re-Purposed CM | 4.0 Meet outside the Its Downtown Parking For Outdoor Activities and Dining Marriott Lobby at 12:45 pm During the Pandemic. Additional $40 fee applies.
1:30 pm - 3:00 pm CEQA Yoga: Bend, But Don’t Break Your Project Description CM | 1.5 | LAW Platinum 3/4 Law and Order: SB 1000 Edition CM | 1.5 | LAW Platinum 1/2 Designing Age-Friendly Parks and Public Spaces CM | 1.5 Grand Ballroom A/D Virtual Option Planning for Fire-Adapted Communities CM | 1.5 Platinum 7/8 Public vs. Private: Which Side are You On? CM | 1.5 Orange County Ballroom 3/4 Quantifying How Affordable Housing Changes Lives and CM | 1.5 Platinum 9/10 Communities
Strategic Skills to Achieve Project Success (Part 1) CM | 1.5 Grand Ballroom G/K True Stories from the OTHER Side…The Juxtaposing Worlds of CM | 1.5 Orange County Ballroom 1/2 Land Use and Transit Planners
CONFERENCE-AT-A-GLANCE
Monday, October 3
The Conference-at-a-Glance is subject to change.
The most current information can be found on the conference website, on the mobile app prior to the conference, and in the registration area when the conference begins.
Mobile Workshops Student Sessions/Events Special Events S/R - Sustainability/Resilience
104
Item # C10.
CONFERENCE-AT-A-GLANCE
Monday, October 3
The Conference-at-a-Glance is subject to change.
The most current information can be found on the conference website, on the mobile app prior to the conference, and in the registration area when the conference begins.
Mobile Workshops Student Sessions/Events Special Events 3:15 pm - 4:45 pm Community Engagement and Consensus Building for Climate CM | 1.5 | S/R Platinum 1/2 Action Plans
Designing Age-Friendly Parks & Public Spaces CM | 1.5 Grand Ballroom A/D Emergency Evacuation Survival Guide: Understanding CM | 1.5 | S/R Platinum 3/4 Evacuation Planning & Analysis in California
HCD’s Carrots and Sticks: Promoting Local Housing Production CM | 1.5 Orange County Ballroom 1/2 through Incentives and Accountability
Virtual Option New Uses in Old Places: Addressing the Housing Crisis While CM | 1.5 Platinum 7/8 Revitalizing Aging Commercial Districts
Planning from Equity: Stories from People Affected- CM | 1.5 | EQUITY Orange County a Film and Discussion Ballroom 3/4 Property Rights, Takings, Exactions, and More: A Legal and CM | 1.5 | LAW Platinum 9/10 Practical Update for Planners
Strategic Skills to Achieve Project Success (Part 2) CM | 1.5 Grand Ballroom G/K 4:45 pm - 6:00 pm APA California Chapter Matinee Awards Show Platinum 5/6 6:00 pm - 7:00 pm Sponsors’ Reception Marquis Ballroom Exhibit Hall
CONFERENCE-AT-A-GLANCE
Tuesday, October 4
7:00 am - 8:00 am Continental Breakfast Marque Ballroom 7:00 am - 1:00 pm Registration Platinum Foyer 8:00 am - 9:30 am Building Partnerships in Fresno to Deliver the Nation’s First CM | 1.5 Platinum 7/8 High-Speed Rail Station
Crafting Objective Design Standards and Getting It Right: CM | 1.5 | LAW Platinum 3/4 Housing, Design Review, Meeting Challenges
What’s New in Ethics? A Roundtable Discussion CM | 1.5 | ETHICS Grand Ballroom A/D Housing as a Climate Solution CM | 1.5 | S/R Platinum 9/10 Virtual Option Leadership Skills to Advocate for Social Equity CM | 1.5 | EQUITY Platinum 5/6 Rethinking Downtown after COVID: Sparking Community CM | 1.5 Platinum 1/2 through Street Closures
8:00 am - 10:45 am New CAPCOA Handbook: Workshop on Quantitative CM | 2.75 | S/R Grand Ballroom G/K Methods and Application of Transportation Measures
8:00 am - 12:00 pm Exhibits Open Marquis Ballroom Center/South 9:00 am - 11:30 am MW#11: Housing For All - Current Approaches to Planning CM | 2.0 Meet outside the Design, Permitting and Funding High-Quality Marriott Lobby at 8:45 am Affordable Housing. Additional $35 fee applies.
S/R - Sustainability/Resilience
105
Item # C10.
9:45 am - 10:45 am 2022 CEQA Update: Hear the Latest from the Courts and CM | 1.0 | LAW Platinum 5/6 Virtual Option Legislature
Airports…………………How do I get there? CM | 1.0 Orange County Ballroom 1/2 CommUNITY Development: Uniting Planning, Building, CM | 1.0 Platinum 3/4 Economic Development, and Code Enforcement
Leveraging Technology to Develop Data Driven and CM | 1.0 Platinum 1/2 Community Supported Housing Elements
Reading the Site: Experiments in Unearthing Site Forces, CM | 1.0 Platinum 9/10 Systems and Stories for Better Design
The Big and Small of It: Regional Housing Policy for Rural Areas CM | 1.0 Orange County Ballroom 3/4 Try Transit! Incentivizing Mode Shift and Post-Pandemic CM | 1.0 Platinum 7/8 Ridership Recovery in Southern California
11:00 am - 11:30 am Cannabis: "Highs" and Lows of Permitting CM | 0.5 Orange County Ballroom 3/4 Five Lessons I Learned Working as a Public Health Planner CM | 0.5 Orange County Ballroom 1/2 Getting Teens to the Table: Partnerships for Youth Engagement CM | 0.5 Grand Ballroom A/D Virtual Option How Can Traditional Malls Transform and Become Resilient CM | 0.5 Platinum 5/6 Communities of Tomorrow?
How Do We Get There From Here? Understanding California’s CM | 0.5 Platinum 1/2 Route to Carbon Neutrality
Intersections + Identities: A Radical Rethinking of Our CM | 0.5 Platinum 3/4 Transportation Experiences
Playing the Climate-Action Long Game with Transfer of CM | 0.5 Platinum 7/8 Development Rights
Tell Me a Story: Using Graphic Design to Demystify the CM | 0.5 Grand Ballroom G/K Development Review Process and ADUs
The Yeti in the Desert: Defrosting Economic Development CM | 0.5 Platinum 9/10 with Adventure Cycling
11:45 am - 1:00 pm Closing Plenary: Gettin’ Real with Chat & JT CM | 0.5 Platinum 5/6 Virtual Option Chad Kroeger and JT Parr
12:00 pm - 2:00 pm Exhibitor Teardown Marquis Ballroom Center/South
CONFERENCE-AT-A-GLANCE
Tuesday, October 4
The Conference-at-a-Glance is subject to change.
The most current information can be found on the conference website, on the mobile app prior to the conference, and in the registration area when the conference begins.
Mobile Workshops Student Sessions/Events Special Events 106
Item # C10.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Authorizing the City Manager to Execute the Extension of the Sole Source Services Agreement with Flock Group Inc. for Automated License Plate Reader (ALPR) Cameras in an Amount Not-to-Exceed $314,750 and Renew the Agreement for One Three-Year Period Subject to Annual Appropriation of Funds. (Jared Hernandez, Chief of Police, 408-586-2406) Category: Consent Calendar-Public Safety
Meeting Date: 9/20/2022
Recommendation: Adopt a Resolution Authorizing the City Manager to Execute the Extension of the Sole Source Services Agreement with Flock Group, Inc. for Automated License Plate Reader (ALPR) Cameras in an Amount Not-to-Exceed $314,750 and Renew the Agreement for One Three-Year Period Subject to Annual Appropriation of Funds; and authorize the Chief of Police to execute contract change orders in an aggregate amount not to exceed $78,500.
BACKGROUND:
On April 28, 2020, the City approved a one-year Sole Source agreement with Flock Group, Inc. for the installation of an initial 20 automated license plate reader (ALPR) cameras, per the objectives outlined in CIP project number 3459 “ALPRs and Citywide Security Cameras.” The original contract was a not-to-exceed amount was $40,000.
On April 15, 2021, the City approved an additional one-year Sole Source agreement with Flock Safety for the installation of 15 additional ALPR cameras and the additional compensation amount of $41,250 for the new cameras combined for a not-to-exceed amount of $81,250.
On May 26, 2020, the Purchasing Agent designated Flock Group, Inc as the “Sole Source” provider of Falcon ALPR wireless cameras with patented machine learning technology in accordance with Municipal Code Section I-2-3.06 “Sole Source Procurement”. Section I-2-3.06 of the Milpitas Municipal Code authorizes the Purchasing Agent to award contracts without competition when the Purchasing Agent determines in writing, after conducting a good faith review of available sources, that only one viable source exists for the required supplies, material, equipment or general service, or there is a compelling reason for using only one source.
Flock Group, Inc., is the sole manufacture and distributor of license plate reader. This designation is active for five (5) years ending on May 25, 2025 (See attached Sole Source Justification Form).
ANALYSIS:
Due to the continued success of the program, the Police Department requests to extend the original two agreements through 2023 and 2024, respectively, under one agreement amendment with Flock Safety for the thirty-five (35) existing ALPR cameras and for a contingency of up to ten (10) additional ALPR cameras, in an amount not-to-exceed $314,750. This agreement is needed for continuance of service.
Since the approval of the initial contract and the implementation of the first set of cameras in September of 2020, the ALPR program has aided the Police Department in enhancing public safety in various ways, such as locating missing persons, identifying, and monitoring crime trends, aiding in criminal investigations and apprehensions, recovery of stolen vehicles, locating of wanted persons, and development of investigative leads in criminal and non-criminal investigations. Additionally, the ALPR program has improved efficiency in investigations by reducing staff time where other means of gathering similar information is cumbersome. Due to the overall effectiveness of the ALPR technology, staff recommends continuance of the program.
The original 1-year contract (20 cameras) not-to-exceed amount was $40,000 and the ongoing annual cost for these cameras is $40,000. The additional 1-year contract (15 additional cameras) not-to-exceed amount was 107 Item # C11.
$41,250 and the ongoing annual cost for these cameras is $37,500. Extending each of these agreements an additional two years to 2023 and 2024, respectively, under one agreement amendment will increase the combined total not-to-exceed amount by $155,000, which requires City Council approval.
In addition, staff recommends adding a contingency of $78,500 (24%) to account for the potential addition of up to ten (10) ALPR cameras for the extent of the proposed agreement (annual cost per camera: $2,500, plus a $350 one-time implementation fee per camera). The contingency would allow for the timely expansion of the ALPR program, if and as needed, to further address public safety including shifting crime trends. Staff also recommends authorizing the Chief of Police to execute contract change orders in an aggregate amount not to exceed $78,500. The change order authority will not exceed this amount. The following table shows the costs as described herein:
ALPR Equipment: Year 1 Cost Year 2 Cost Year 3 Cost Total Initial Set of 20 Cameras
(2020 through 2023)
$40,000 $40,000 $40,000 $120,000
Additional Set of 15 Cameras
(2021 through 2024)
$41,250 $37,500 $37,500 $116,250
Contingency for 10 Cameras
(2022 through 2025)
$78,500
Total $81,250 $77,500 $77,500 $314,750
Paid
Additionally, staff requests authority to renew the Agreement for one three-year period subject to annual appropriation of funds.
POLICY ALTERNATIVE(S):
Alternative 1: Do not approve a services agreement with Flock Safety for ALPR cameras Pros: The City would not incur the expense of up to $314,750 to amend the current agreements for ALPR cameras.
Cons: The Police Department would no longer have access to the ALPR technology with Flock Safety.
Reason for Not Recommending: The implementation of the ALPR program has allowed the Police Department to continue to protect the safety of the community.
FISCAL IMPACT:
The total cost of the two original agreements for the first and second sets of ALPR cameras is $81,250, all of which was expensed in prior fiscal years. The cost of extending both agreements through 2023 and 2024, respectively, and adding a contingency as staff recommends is $233,500, increasing the not-to-exceed amount of the total agreements to $314,750 combined. The additional cost of $233,500 will be paid from funds available in CIP 3459 ALPRs and Security Cameras. Funding source for CIP 3459 comes from the General Government CIP Fund and the Grants/Reimb./Developer/Fees. As of June 30, 2022, the balance for CIP 3459 is $396,113.
California Environmental Quality Act (CEQA):
The proposed action is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Guidelines sections 15378(b)(2) and 15378(b)(5) as ongoing administrative or organizational activities to ensure proper record keeping in the Police Department that will not result in direct or indirect physical changes in the environment.
RECOMMENDATION:
Adopt a Resolution Authorizing the City Manager to Execute the Extension of the Sole Source Services Agreement with Flock Group, Inc. for Automated License Plate Reader (ALPR) Cameras in an Amount Not-to- Exceed $314,750 and Renew the Agreement for One Three-Year Period Subject to Annual Appropriation of Funds; and authorize the Chief of Police to execute contract change orders in an aggregate amount not to exceed $78,500.
108
Item # C11.
Attachment(s):
1. Proposed Agreement with Flock Safety
2. Budget Change Form
3. Resolution
109
Item # C11.
FLOCK GROUP INC.
PO Box 207576
Dallas, TX 75320-7576
ORDER FORM
The attached documents describe the relationship between Flock Group Inc. (“Flock”) and the customer identified below (“Customer”) (each of Flock and Customer, a ”Party”). The documents attached to this order form (“Order Form”) will consist of the document entitled “Terms and Conditions” (the “SaaS Terms”), any schedules attached thereto, and the Customer’s Supplemental Conditions Addendum attached hereto and incorporated herein by reference, which describe and set forth the general legal terms governing the relationship (collectively, the “Agreement”). The SaaS Terms contain, among other things, warranty disclaimers, liability limitations and use limitations. However, the parties agree that the Supplemental Conditions Addendum shall prevail in the event of any conflict with any other term in the Agreement, including the SaaS Terms.
The Agreement will become effective when this Order Form is executed by both Parties (the “Effective Date”).
Customer: Milpitas Police Department Contact:
Address: Phone:
E-Mail:
Usage Fees: $40,000 per Year (the “Payment Period”) Pilot Term: 60 days no obligation, after cameras are installed and validated. Invoice sent after pilot term has completed with net 30 day payment period.
Initial Term: _12 months Renewal Term: __12 months
Number of Cameras: __20__
Installation Fee (one-time): $ 0
The Parties have executed this Agreement as of the dates set forth below.
Flock Group Inc. Customer Name:
By: By:
Name: Name:
Title: Title:
Date: Date:
*12 month contract begins after pilot is complete
Captain Raj Maharaj
1275 North Milpitas Blvd.,
Milpitas, CA 95035
(408) 586-2416
[email protected]
Steve McHarris
Interim City Manager
City of Milpitas -
DocuSign Envelope ID: 7C8D82E1-E664-4F3F-B6DE-28A16D1ED1FA Apr-28-2020
Apr-28-2020
Alex Latraverse
VP of Sales
4/28/2020
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Item # C11.
ADDENDUM
CITY OF MILPITAS SUPPLEMENTAL CONDITIONS
For purposes of this Addendum to the Agreement between Flock Group, Inc. and the City of Milpitas, the term “Contractor” shall refer to Flock Group, Inc., and the term “City” shall be used to refer to the Customer, which is the City of Milpitas Police Department.
1. California Civil Code Compliance. Contractor is advised of, and agrees it will comply with the requirements of the California Civil Code, Division 3, Part 4, Title 1.81.23 COLLECTION OF LICENSE PLATE INFORMATION [§§1798.90.5 - 1798.90.55] as applicable to an automated license plate recognition (ALPR) operator (also referred to as an “ALPR operator”). Contractor shall maintain reasonable security procedures and practices to protect ALPR information from unauthorized access, destruction, use, modification or disclosure that are at least as protective as the “Flock Safety End to End Data Security Overview,” “Flock Safety CJIS Compliance Overview,” and “Flock Safety Internet Security Policy,” (collectively, referred to as the “Flock Security Policies”) as each such policy was in effect as of January 29, 2020. Any amendment to the Flock Security Policies shall be transmitted to the City within 10 days. In the event the City determines in its sole discretion that any amendment to the Flock Security Policies either substantially reduces the privacy or security of Customer Content (including ALPR Footage) or the amendments would violate any State or Federal law, then the City shall have the right to terminate the Agreement and Flock will refund to City a pro-rata portion of the pre-paid Fees for Services not received due to such termination.
2. Disclosure of Security Breach. Contractor is advised of the requirements of the California Civil Code, section 1798.29, requiring notification to any resident of California in the event of breach of the security of the system. Contractor agrees it will notify the City immediately (and in no event more than 24 hours) upon the occurrence of any breach in the security of data that may potentially trigger the need for security breach notifications pursuant to Civil Code section 1798.29 or similar State or Federal law. The parties agree that the City will control the timing and content of any required security breach notification, and agree that Contractor shall fully pay or reimburse the City for the costs of providing any security breach notification required by Civil Code, section 1798.29,or similar State or Federal law, resulting from any security breach of the Flock Safety platform. Contractor’s responsibility for the costs of providing such security breach notifications shall not be limited by any disclaimer or limitation of liability in the Agreement, including but not limited to Sections 2.1, 7.4 and 8 of the SaaS Terms of this Agreement.
3. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend with counsel reasonably acceptable to the City, and hold harmless the City and its officials, officers, employees, agents, contractors, consultants, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of or relating to any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Contractor or its employees, subcontractors, or agents. The foregoing obligation of Contractor shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, contractors, consultants, or volunteers and (2) the actions of Contractor or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under the contract does not relieve Contractor from liability under this indemnification DocuSign Envelope ID: 7C8D82E1-E664-4F3F-B6DE-28A16D1ED1FA 111
Item # C11.
and hold harmless clause. This indemnification and hold harmless clause is a material element of the Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. This Section 3 shall survive termination or expiration of this Agreement. Contractor’s indemnification obligation pursuant to this Section shall not be limited by any disclaimer or limitation of liability in the Agreement, including but not limited to, Sections 2.1, 7.4 and 8 of the SaaS Terms of this Agreement.
4. Infringement. Without limiting the generality or applicability of Section 3, above, if a third party makes a claim against the City that any use of the Services in accordance with the terms of this Agreement infringes such third party’s intellectual property rights, Contractor, at its sole cost and expense, will defend City against the claim and indemnify City from the damages, losses, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Contractor, provided that City: (i) notifies Contractor promptly in writing of the claim; (ii) gives Contractor sole control of the defense and any settlement negotiations; and (iii) gives Contractor reasonable assistance in the defense of such claim. If Contractor believes or it is determined that the Services violated a third party’s intellectual property rights, Contractor may choose to either modify the Services to be non-infringing or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Contractor may terminate City’s use rights and refund any unused, prepaid fees City may have paid to Contractor.
5. California Public Records Act Compliance. Notwithstanding Section 4 of the SaaS Terms, Contractor expressly understands that City is a public agency subject to the California Public Records Act (Cal. Government Code § 6250 et seq.). In the event that City receives a public records request seeking the disclosure of information that Contractor has designated as its “Proprietary Information,” City shall notify Contractor, and Contractor shall be allowed to take any reasonable action to preserve the confidentiality of such information. City’s obligation shall only extend to notifying Contractor of the request, and City shall have no obligation to preserve the confidentiality unless doing so is in full compliance with the law.
6. Independent Contractor. It is expressly agreed that Contractor is to perform the services described herein as an independent contractor pursuant to California Labor Code Section 3353, under the control of the City as to the result of his work only but not as to the means by which such result is accomplished. Nothing contained herein shall in any way be construed to make Contractor or any of its agents or employees, an agent, employee or representative of the City.
Contractor shall be entirely responsible for the compensation of any employees used by Contractor in providing said services.
7. Subcontractors. Notwithstanding Section 2.1 of the SaaS Terms, if Contractor utilizes a third-party subcontractor or other vendor to provide the Services under this Agreement, Contractor shall ensure that such subcontractor(s) or vendor(s) complies with the terms of this Agreement, and shall be jointly and severally liable with the subcontractor/vendor for any breach by the subcontractor/vendor.
8. Insurance. During the entire term of this Agreement and any extension or modification thereof, the CONTRACTOR shall keep in effect insurance policies meeting the following insurance requirements: See Exhibit C – Insurance Requirements General.
9. Appropriation. City’s funding of this Agreement shall be on a fiscal year basis (July 1 to June 30) and is subject to annual appropriations. Contractor acknowledges that the City is a municipal corporation and is precluded by the California Constitution and other laws from entering into obligations that financially bind future governing bodies. Nothing in this Agreement shall constitute an obligation of future governing bodies to appropriate funds for the purposes of this Agreement. The parties agree that the Initial Term and any renewal term(s) is contingent upon DocuSign Envelope ID: 7C8D82E1-E664-4F3F-B6DE-28A16D1ED1FA 112 Item # C11.
the appropriation of funds by the City. This Agreement will terminate immediately if funds necessary to continue the Agreement are not appropriated. City shall pay Contractor for any services performed in accordance with this Agreement up to the date of termination.
10. Anti-Discrimination. Contractor agrees to observe the provisions of the City of Milpitas Standard Operating Procedure 16.8 “Anti-Discrimination Policy’ and Title VII of the Civil Rights Act of 1964, obligating every contractor or subcontractor under a contract or subcontract to the City of Milpitas for public works or for goods or service to refrain from discriminatory employment practices on the basis of the race, color, sex, sexual orientation, religious creed, national origin or ancestry of any employee of, or applicant for employment with, such contractor or subcontractor.
11. Assignment. Contractor shall not assign this Agreement, or any part thereof, or any right of the Contractor hereunder without the prior written consent of the City. Notwithstanding, for purposes of this Contract, a merger, acquisition, reorganization, spin-off or other transaction involving a transfer of substantially all of the assets or common stock of either party hereto shall not be deemed an assignment.
12. Business License. Pursuant to the City of Milpitas Municipal Code, Tile III Business and Professions, Section 1-4.01 Requirement and Special Exemptions …”it shall be unlawful for any person to transact and carry on any business, trade, profession, calling or occupation in the City of Milpitas without first having procured a license from said City”.
13. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without giving effect to principles of conflict of laws. In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Santa Clara, San Jose, California.
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TERMS AND CONDITIONS
1. DEFINITIONS
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or
cross-referenced in this Section 1.
1.1. “Authorized End User” shall mean any individual
employees, agents, or contractors of Customer
accessing or using the Services through the Web
Interface, under the rights granted to Customer
pursuant to this Agreement.
1.2. “Customer Content” will mean the data, media and content provided by Customer through the Services.
For the avoidance of doubt, the Customer Content
will include the Footage.
1.3. “Documentation” will mean text and/or graphical
documentation, whether in electronic or printed
format, that describe the features, functions and
operation of the Services which are provided by Flock
to Customer in accordance with the terms of this
Agreement.
1.4. “Embedded Software” will mean the software and/or firmware embedded or preinstalled on the Hardware.
1.5. “Flock IP” will mean the Services, the Documentation, the Hardware, the Embedded Software, the
Installation Services, and any and all intellectual
property therein or otherwise provided to Customer
and/or its Authorized End Users in connection with
the foregoing.
1.6. “Footage” means still images captured by the
Hardware in the course of and provided via the
Services.
1.7. “Hardware” shall mean the Flock Gate Cameras and any other physical elements that interact with the
Embedded Software and the Web Interface to provide
the Services. The term “Hardware ” excludes the
Embedded Software.
1.8. “Installation Services” means the services provided by Flock regarding the installation, placements and
configuration of the Hardware, pursuant to the
Statement of Work attached hereto.
1.9. “Services” means the provision, via the Web
Interface, of Flock’s software application for
automatic license plate detection, searching image
records, and sharing Footage.
1.10. “Unit(s)” shall mean the Hardware together with the Embedded Software.
1.11. “Web Interface” means the website(s) or application(s) through which Customer and its Authorized End
Users can access the Services in accordance with the
terms of this Agreement.
2. SERVICES AND SUPPORT
2.1. Provision of Access. Subject to the terms of this Agreement, Flock hereby grants to Customer a
nonexclusive, non-transferable right to access the
features
and functions of the Services via the Web Interface
during the Service Term, solely for the Authorized
End Users. The Footage will be available for
Customer to access via the Web Interface for 30 days.
Authorized End Users will be required to sign up for
an account, and select a password and user name
(“User ID”). Flock will also provide Customer the
Documentation to be used in accessing and using the
Services. Customer shall be responsible for all acts
and omissions of Authorized End Users, and any act
or omission by an Authorized End User which, if
undertaken by Customer, would constitute a breach of
this Agreement, shall be deemed a breach of this
Agreement by Customer. Customer shall undertake
reasonable efforts to make all Authorized End Users
aware of the provisions of this Agreement as
applicable to such Authorized End User’s use of the
Services, and shall cause Authorized End Users to
comply with such provisions. Flock may use the
services of one or more third parties to deliver any
part of the Services, including without limitation
using a third party to host the Web Interface which
make the Services available to Customer and
Authorized End Users. Flock will pass-through any
warranties that Flock receives from its then current
third party service provider to the extent that such
warranties can be provided to Customer. SUCH
WARRANTIES, AS PROVIDED AS HONORED
BY SUCH THIRD PARTIES, ARE THE
CUSTOMER’S SOLE AND EXCLUSIVE
REMEDY AND FLOCK’S SOLE AND
EXCLUSIVE LIABILITY WITH REGARD TO
SUCH THIRD PARTY SERVICES, INCLUDING
WITHOUT LIMITATION HOSTING THE WEB
INTERFACE. Customer agrees to comply with any
acceptable use policies and other terms of any third
party service provider that are provided or otherwise
made available to Customer from time to time.
2.2. Embedded Software License.Subject to all terms of this Agreement, Flock grants Customer a limited,
nonexclusive, non-transferable, non-sublicensable
(except to the Authorized End Users), revocable right
to use the Embedded Software as installed on the
Hardware by Flock; in each case, solely as necessary
for Customer to use the Services.
2.3. Documentation License. Subject to the terms of this Agreement, Flock hereby grants to Customer a
nonexclusive, non-transferable right and license to
use the Documentation during the Service Term for
Customer’s internal purposes in connection with its
use of the Services as contemplated herein.
2.4. Usage Restrictions. Customer will not, and will not permit any Authorized End Users to, (i) copy or
duplicate any of the Flock IP; (ii) decompile,
disassemble, reverse engineer or otherwise attempt to
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obtain or perceive the source code from which any software component of any of the Flock IP is compiled or
interpreted, or apply any other process or procedure to derive the source code of any software included in the
Flock IP, or attempt to do any of the foregoing, and
Customer acknowledges that nothing in this
Agreement will be construed to grant Customer any
right to obtain or use such source code; (iii) modify,
alter, tamper with or repair any of the Flock IP, or
create any derivative product from any of the
foregoing, or attempt to do any of the foregoing,
except with the prior written consent of Flock; (vi)
interfere or attempt to interfere in any manner with
the functionality or proper working of any of the
Flock IP; (v) remove, obscure, or alter any notice of
any intellectual property or proprietary right
appearing on or contained within any of the
Application IP; (vii) use the Services for timesharing
or service bureau purposes or otherwise for the
benefit of a third party; or (viii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber,
Customer’s rights under Sections 2.1, 2.2, or 2.3.
2.5. Retained Rights; Ownership. As between the
Parties, subject to the rights granted in this
Agreement, Flock and its licensors retain all right,
title and interest in and to the Flock IP and its
components, and Customer acknowledges that it
neither owns nor acquires any additional rights in and
to the foregoing not expressly granted by this
Agreement. Customer further acknowledges that
Flock retains the right to use the foregoing for any
purpose in Flock’s sole discretion.
2.6. Suspension. Notwithstanding anything to the
contrary in this Agreement, Flock may temporarily
suspend Customer’s and any Authorized End User’s
access to any portion or all of the Flock IP if (i) Flock reasonably determines that (a) there is a threat or
attack on any of the Flock IP; (b) Customer’s or any
Authorized End User’s use of the Flock IP disrupts or
poses a security risk to the Flock IP or any other
customer or vendor of Flock; (c) Customer or any
Authorized End User is/are using the Flock IP for
fraudulent or illegal activities; (d) Flock’s provision of the Services to Customer or any Authorized End
User is prohibited by applicable law; or (e) any
vendor of Flock has suspended or terminated Flock’s
access to or use of any third party services or products required to enable Customer to access the Flock IP
(each such suspension, in accordance with this
Section 2.6, a “Service Suspension ”). Flock will
make commercially reasonable efforts, circumstances
permitting, to provide written notice of any Service
Suspension to Customer (including notices sent to
Flock’s registered email address) and to provide
updates regarding resumption of access to the Flock
IP following any Service Suspension. Flock will use
commercially reasonable efforts to resume providing
access to the Application Service as soon as
2.7. reasonably possible after the event giving rise to the Service Suspension is cured. Flock will have no
liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences
that Customer or any Authorized End User may incur as
a result of a Service Suspension.
Installation Services.
Prior to performing the
physical installation of the Units, Flock shall advise
Customer on the location and positioning of the Units.
While Flock will provide advice regarding the
location of positioning of such Units, Customer will
have the ultimate decision regarding the location and
position of the Units (each Unit location so
designated by Customer, a “ Designated Location ”).
Due to the fact that Customer selects the Designated
Location, Flock shall have no liability to Customer
resulting from any Footage resulting from or
otherwise relating to the Designated Locations. It is
understood that the Installation Fees do not include
any permits or associated costs, any federal, state or
local taxes including property, license, privilege,
sales, use, excise, gross receipts or other similar taxes which may now or hereafter become applicable to,
measured by or imposed upon or with respect to the
installation of the Hardware, its use, or any other
services performed in connection therewith and that
Customer shall be solely responsible for the
foregoing. Customer represents and warrants that it
has all necessary right title and authority and hereby
authorizes Flock to install the Hardware at the
Designated Locations and to make any necessary
inspections or tests in connection with such
installation. Customer agrees to allow Flock and its
agents reasonable access to the designated installation locations at all reasonable times upon reasonable
notice for the purpose of performing the installation
work (together with the preceding sentence, the “
Customer Installation Obligations
”). Following the
initial installation of the Hardware, Flock’s obligation to perform installation work shall cease; however, Flock
will continue to monitor the performance of the Units.
The Hardware shall be installed in a
workmanlike manner in accordance with Flock’s
standard installation procedures, and the installation
will be completed within a reasonable time from the
time the Designated Locations are selected by
Customer. Customer agrees and understands that the
Services will not function without the Hardware. The
Hardware shall remain the personal property of Flock
and will be removed upon the termination or
expiration of this Agreement. Customer agrees to
perform all acts which may be necessary to assure the
retention of title of the Hardware by Flock. Should
Customer default in any payment for the Services or
any part thereof, then Customer authorizes and
empowers Flock to remove the Hardware or any part
thereof. Such removal, if made by Flock, shall not be
deemed a waiver of Flock’s rights to any damages
Flock may sustain as a result of Customer’s default and Flock shall have the right to enforce any other legal
remedy or right.
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If agency chooses to request Flock Safety to move a camera, there is a $250 fee per camera to do so.
2.8. 2.9.
Hazardous Conditions. Unless otherwise stated in
the Agreement, Flock’s price for its services under
this Agreement does not contemplate work in any
areas that contain hazardous materials, or other
hazardous conditions, including, without limit,
asbestos. In the event any such hazardous materials
are discovered in the designated locations in which
Flock is to perform services under this Agreement,
Flock shall have the right to cease work immediately
in the area affected until such materials are removed
or rendered harmless. Any additional expenses
incurred by Flock as a result of the discovery or
presence of hazardous material or hazardous
conditions shall be the responsibility of Customer and
shall be paid promptly upon billing.
Support Services.
Subject to the payment of fees,
Flock shall monitor the performance and of Services
and may, from time to time, advise Customer on
changes to the Services or the Designated Locations
which may improve the performance or functionality
of the Services or may improve the quality of the
Footage. The work, its timing, and the fees payable
relating to such work shall be agreed by the Parties
prior to any alterations to or changes of the Services
or the Designated Locations (“Monitoring Services ”).
Subject to the terms hereof, Flock will provide
Customer with reasonable technical and on-site
support and maintenance services (“On-Site
Services ”) in-person or by email at
[email protected]. Flock will use commercially
reasonable efforts to respond to requests for support.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Customer Obligations. Customer agrees to provide
Flock with accurate, complete, and updated
registration information. Customer may not select as
its User ID a name that Customer does not have the
right to use, or another person’s name with the intent
to impersonate that person. Customer may not
transfer its account to anyone else without prior
written permission. Customer will not share its
account or password with anyone, and must protect
the security of its account and password. Customer is
responsible for any activity associated with its
account. Customer shall be responsible for obtaining
and maintaining any equipment and ancillary services
needed to connect to, access or otherwise use the
Services. Customer will, at its own expense, provide
assistance to Flock, including, but not limited to, by
means of access to, and use of, Customer facilities
and Customer equipment, as well as by means of
assistance from Customer personnel, to the limited
extent any of the foregoing may be reasonably
necessary to enable Flock to perform its obligations
hereunder, including, without limitation, any
obligations with respect to Support Services or any
Installation Services.
3.2. Customer Representations and Warranties.Customer represents, covenants, and warrants that
Customer will use the Services only in compliance
with this Agreement and all applicable laws and
regulations, including but not limited to any laws
relating to the recording or sharing of video, photo, or audio content. Customer hereby agrees to indemnify
and hold harmless Flock against any damages, losses,
liabilities, settlements and expenses (including
without limitation costs and attorneys’ fees) that
arises from the Customer’s alleged violation of any
applicable law or third party right. Although Flock
has no obligation to monitor Customer’s use of the
Services, Flock may do so and may prohibit any use
of the Services it believes may be (or alleged to be) in violation of the foregoing.
4. CONFIDENTIALITY; CUSTOMER DATA
4.1. Confidentiality. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing
Party”) has disclosed or may disclose business,
technical or financial information relating to the
Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Proprietary Information of Flock includes non-public
information regarding features, functionality and
performance of the Services. Proprietary Information
of Customer includes non-public data provided by
Customer to Flock or collected by Flock via the Unit,
including the Footage, to enable the provision of the
Services, which includes but is not limited to
geolocation information and environmental data
collected by sensors built into the Units (“Customer
Data”). The Receiving Party agrees: (i) to take the
same security precautions to protect against
disclosure or unauthorized use of such Proprietary
Information that the party takes with its own
proprietary information, but in no event will a party
apply less than reasonable precautions to protect such
Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted
herein) or divulge to any third person any such
Proprietary
Information. Flock’s use of the Proprietary
Information may include processing the Proprietary
Information to send Customer alerts, such as when a
car exits Customer’s neighborhood, or to analyze the
data collected to identify motion or other events. The
Disclosing Party agrees that the foregoing shall not
apply with respect to any information that the
Receiving Party can document (a) is or becomes
generally available to the public, or (b) was in its
possession or known by it prior to receipt from the
Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was
independently developed without use of any
Proprietary Information of the Disclosing Party.
Nothing in this Agreement will prevent the Receiving
Party from disclosing the Proprietary Information
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pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party
reasonable prior notice of such disclosure to contest
such order. For clarity, Flock may access, use,
preserve and/or disclose the Footage to law
enforcement authorities, government officials, and/or
third parties, if legally required to do so or if Flock has a good faith belief that such access, use,
preservation or disclosure is reasonably necessary to:
(a) comply with a legal process; (b) enforce this
Agreement, including investigation of any potential
violation thereof; (c) detect, prevent or otherwise
address security, fraud or technical issues; or (d)
protect the rights, property or safety of Flock, its
users, a third party, or the public as required or
permitted by law, including respond to an emergency
situation. Flock may store deleted Footage in order to
comply with certain legal obligations but such
retained Footage will not be retrievable without a
valid court order.
4.2. Customer Data. As between Flock and Customer, all right, title and interest in the Customer Data, belong
to and are retained solely by Customer. Customer
hereby grants to Flock a limited, non-exclusive,
royalty-free, worldwide license to use the Customer
Data and perform all acts with respect to the
Customer Data as may be necessary for Flock to
provide the Services to Customer, including without
limitation the Support Services set forth in Section 2.9 above. As between Flock and Customer, Customer is
solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all
Customer Data.
4.3. Feedback. If Customer provides any suggestions,
ideas, enhancement requests, feedback,
recommendations or other information relating to the
subject matter hereunder, Customer hereby assigns
(and will cause its agents and representatives to
assign) to Flock all right, title and interest (including intellectual property rights) with respect to or
resulting from any of the foregoing.
4.4. Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Flock shall have the right
to collect and analyze data and other information
relating to the provision, use and performance of
various aspects of the Services and related systems
and technologies (including, without limitation,
information concerning Customer Data and data
derived therefrom). Customer acknowledges that
Flock will be compiling anonymized and/or
aggregated data based on Customer Data input into
the Services (the “Aggregated Data ”). Customer
hereby grants Flock a non-exclusive, worldwide,
perpetual, royalty-free right and license (during and
after the term hereof) to (i) use such Aggregated Data
to improve and enhance the Services and for
diagnostic and corrective purposes in connection with
the Services and other Flock offerings, and (ii)
disclose the Customer Data (inclusive of any Footage)
to enable law enforcement monitoring against law
enforcement hotlists as well as provide Footage
search access to law enforcement for investigative
purposes only. No rights or licenses are granted
except as expressly set forth herein.
5. PAYMENT OF FEES
5.1. Fees. Customer will pay Flock the first Usage Fee and the Installation Fee (the “Initial Fees”) as set forth on the Order Form on or before the 7th day following
the Effective Date of this Agreement. Flock is not
obligated to commence the Installation Services
unless and until the Initial Fees have been made and
shall have no liability resulting from any delay related thereto. Customer shall pay the ongoing Usage Fees
set forth on the Order Form with such Usage Fees due
and payable thirty (30) days in advance of each
Payment Period. All payments will be made by either
ACH, check, or credit card.
5.2. Changes to Fees. Flock reserves the right to change the Fees or applicable charges and to institute new
charges and Fees at the end of the Initial Term or any
Renewal Term, upon sixty (60) days’ notice prior to
the end of such Initial Term or Renewal Term (as
applicable) to Customer (which may be sent by
email). If Customer believes that Flock has billed
Customer incorrectly, Customer must contact Flock
no later than sixty (60) days after the closing date on the first billing statement in which the error or
problem appeared, in order to receive an adjustment
or credit. Inquiries should be directed to Flock’s
customer support department. Customer
acknowledges and agrees that a failure to contact
Flock within this sixty (60) day period will serve as a waiver of any claim Customer may have had as a
result of such billing error.
5.3. Invoicing, Late Fees; Taxes. Flock may choose to
bill through an invoice, in which case, full payment
for invoices issued in any given month must be
received by Flock thirty (30) days after the mailing
date of the invoice. Unpaid amounts are subject to a
finance charge of 1.5% per month on any outstanding
balance, or the maximum permitted by law,
whichever is lower, plus all expenses of collection,
and may result in immediate termination of Service.
Customer shall be responsible for all taxes associated
with Services other than U.S. taxes based on Flock’s
net income.
6. TERM AND TERMINATION
6.1. Term. Subject to earlier termination as provided
below, the initial term of this Agreement shall be for
the period of time set forth on the Order Form (the
“Initial Term ”). Following the Initial Term, this
Agreement will automatically renew for successive
renewal terms of the length set forth on the Order
Form (each, a “Renewal Term”, and together with the
Initial Term, the “Service Term”) unless either party gives
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the other party notice of non-renewal at least thirty
(30) days prior to the end of the then-current term.
6.2. Termination. In the event of any material breach of this Agreement, the non-breaching party may
terminate this Agreement prior to the end of the
Service Term by giving thirty (30) days prior written
notice to the breaching party; provided, however, that
this Agreement will not terminate if the breaching
party has cured the breach prior to the expiration of
such thirty-day period. Either party may terminate
this Agreement, without notice, (i) upon the
institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the
other party's making an assignment for the benefit of
creditors, or (iii) upon the other party's dissolution or ceasing to do business. Upon termination for Flock’s
breach, Flock will refund to Customer a pro-rata
portion of the prepaid Fees for Services not received
due to such termination.
6.3. Effect of Termination.Upon any termination, Flock will collect all Units, delete all Customer Data,
terminate Customer’s right to access or use any
Services, and all licenses granted by Flock hereunder
will immediately cease. Customer shall ensure that
Flock is granted access to collect all Units and shall
ensure that Flock personnel does not encounter
Hazardous Conditions in the collection of such units.
6.4. Survival. The following sections will survive
termination: 2.4, 2.5, 3, 4, 5 (with respect to any
accrued rights to payment), 6.4, 7.4, and 8-9.
7. REMEDY; WARRANTY AND DISCLAIMER
7.1. Remedy. Upon a malfunction or failure of Hardware or Embedded Software (a “Defect”), Customer must
first make commercially reasonable efforts to address
the problem by contacting Flock’s technical support
as described in Section 2.9 above. If such efforts do
not correct the Defect, Flock shall, or shall instruct
one of its contractors to, in its sole discretion, repair or replace the Hardware or Embedded Software
suffering from the Defect. Flock reserves the right to
refuse or delay replacement or its choice of remedy
for a Defect until after it has inspected and tested the affected Unit; provided that such inspection and test
shall occur within 72 hours after Customer notifies
the Flock of defect. Flock agrees to replace cameras
once at no cost to Customer in the event of theft or
damage. Subsequent replacement due to damage or
theft will be at Customer’s own expense with a
replacement cost of $300 per camera. Customer shall
not be required to replace subsequently damaged or
stolen units; however, Customer understands and
agrees that functionality, including Footage, will be
materially affected due to such subsequently
damaged or stolen units and that Flock will have no
liability to Customer regarding such affected
functionality nor shall the Fees owed be impacted.
7.2. Exclusions. Flock will not provide the remedy
described in Section 7.1 above if any of the following
exclusions apply: (a) misuse of the Hardware or Embedded Software in any manner, including operation of the
Hardware or Embedded Software in any way that
does not strictly comply with any applicable
specifications, documentation, or other restrictions on use provided by Flock; (b) damage, alteration, or
modification of the Hardware or Embedded Software
in any way; or (c) combination of the Hardware or
Embedded Software with software, hardware or other
technology that was not expressly authorized by
Flock.
7.3. Warranty. Flock shall use reasonable efforts
consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and
interruptions in the Services and shall perform the
Installation Services in a professional and
workmanlike manner. Services may be temporarily
unavailable for scheduled maintenance or for
unscheduled emergency maintenance, either by Flock
or by third-party providers, or because of other causes beyond Flock’s reasonable control, but Flock shall
use reasonable efforts to provide advance notice in
writing or by e-mail of any scheduled service
disruption.
7.4. Disclaimer. THE REMEDY DESCRIBED IN
SECTION 7.1 ABOVE IS CUSTOMER’S SOLE
REMEDY, AND FLOCK’S SOLE LIABILITY,
WITH RESPECT TO DEFECTIVE HARDWARE
AND/OR EMBEDDED SOFTWARE. FLOCK
DOES NOT WARRANT THAT THE SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE;
NOR DOES IT MAKE ANY WARRANTY AS TO
THE RESULTS THAT MAY BE OBTAINED
FROM USE OF THE SERVICES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION
AND THE SUPPLEMENTAL CONDITIONS
ADDENDUM, THE SERVICES AND
INSTALLATION SERVICES ARE PROVIDED
“AS IS” AND FLOCK DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE
CONTRARY FLOCK AND ITS SUPPLIERS
(INCLUDING BUT NOT LIMITED TO ALL
HARDWARE AND TECHNOLOGY SUPPLIERS),
OFFICERS, AFFILIATES, REPRESENTATIVES,
CONTRACTORS AND EMPLOYEES SHALL NOT
BE RESPONSIBLE OR LIABLE WITH RESPECT
TO ANY SUBJECT MATTER OF THIS
AGREEMENT OR TERMS AND CONDITIONS
RELATED THERETO UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER
THEORY: (A) FOR ERROR OR INTERRUPTION
OF USE OR FOR LOSS OR INACCURACY OR
CORRUPTION OF DATA OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS,
SERVICES OR TECHNOLOGY OR LOSS OF
BUSINESS; (B) FOR ANY INDIRECT,
EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; (C) FOR ANY
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MATTER BEYOND FLOCK’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH
AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED FOUR TIMES THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO FLOCK FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE
ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO MATTERS STATED IN THE SUPPLEMENTAL CONDITIONS ADDENDUM. IN THE EVENT OF AN EMERGENCY, CUSTOMER SHOULD CONTACT 911 AND SHOULD NOT RELY ON THE SERVICES.
9. MISCELLANEOUS
9.1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Flock’s prior written consent. Flock may transfer and assign any of its rights and obligations, in whole or in part, under this Agreement without consent.
9.3. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties.
If there is both an executed and a click-wrap version of this Agreement, the executed version shall govern if the terms differ.
9.4. Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Flock in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.5. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.6. Reserved.
9.7. Publicity. Flock has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Supplier business and development and marketing efforts, including without limitation on Flock’s website.
9.8. Export; US Government Customers.Customer may not remove or export from the United States or allow the export or re-export of the Flock IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services, the Hardware, the Embedded Software and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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EXHIBIT A
Statement of work
Based on the mutually agreed deployment plan, installation services includes the following:
● Installation of Flock Cameras
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Jared Hernandez, Acting Chief of Police
Apr-30-2021
Christopher J. Diaz
Deputy City Manager
Walter C Rossmann
May-03-2021
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Captain Raj Maharaj1275 North Milpitas Blvd.,Milpitas, CA 95035(408) [email protected] Steve McHarrisInterim City Manager City of Milpitas -
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FLOCK GROUP INC. AMENDMENT This Amendment, together with the Terms (as defined herein) describe the relationship between Flock Group Inc. (“Flock”) and the customer identified below (“Agency”) (each of Flock and Agency, a “Party”). This Amendment hereby incorporates and includes the previously executed agreement relating to the provision of services by Flock to the Agency dated April 28, 2020, whereby 20 Falcon cameras purchased for an annual cost of $40,000.00 with the initial term ending on November 22, 2023, and the Expansion Agreement dated April 26, 2021, whereby 15 Falcon cameras purchased for an annual cost of $41,250.00 with the initial term ending on December 14, 2024, (the “Terms”), any schedules attached thereto, and incorporated herein by reference, which describe and set forth the general legal terms governing the relationship (collectively, the "Agreement”). The Terms contain, among other things, warranty disclaimers, liability limitations and use limitations. The Parties understand and agree that any prior orders or agreements between the Parties have been replaced and any outstanding services provided by Flock are now subject to this Agreement. The Agreement will become effective when executed by both Parties (the "Effective Date"). In consideration of the promises and continued mutual agreements and covenants set forth herein, the Government Agency Customer Agreement is modified as follows: Notwithstanding anything to the contrary on the Order Form, the Initial Term shall be (36) months. The Renewal Term shall be (36) months. The total number of Falcon cameras is 35, for a total cost of $232,500.00. Flock Group, Inc Customer: By: Name: Title: Date:
By: Name: Title: Date:
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Resolution No.
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS AUTHORIZING
THE CITY MANAGER TO EXECUTE THE SOLE SOURCE SERVICES AGREEMENT WITH FLOCK GROUP, INC. FOR AUTOMATED LICENSE PLATE READER (ALPR) CAMERAS IN AN AMOUNT NOT-TO-EXCEED $314,750 AND RENEW THE AGREEMENT FOR ONE THREE-YEAR PERIOD SUBJECT TO ANNUAL APPROPRIATION OF FUNDS;
AND AUTHORIZE THE CHIEF OF POLICE TO EXECUTE CONTRACT CHANGE ORDERS IN AN AGGREGATE AMOUNT NOT-TO-EXCEED $78,500.
WHEREAS, On April 28, 2020, the City approved a one -year Sole Source agreement with Flock Group, Inc. for the installation of an initial 20 automated license plate reader (ALPR) cameras. The original contract was a not-to-exceed amount was $40,000., and:
WHEREAS, on May 26, 2020, the Purchasing Agent designated Flock Group, Inc as the “Sole Source” provider of Falcon ALPR wireless cameras with patented machine learning technology in accordance with Municipal Code Section I -2-3.06 “Sole Source Procurement”. Section I-2-3.06 of Milpitas Municipal Code authorizes the City Council to award contracts without competition when the Purchasing Agent determines that there is only one (1) source for the required supply or service . This designation is active for five (5) years ending on May 25, 2025, and;
WHEREAS, On April 15, 2021, the City approved an additional one -year Sole Source agreement with Flock Safety for the installation of 15 additional ALPR cameras for the additional compensation amount of $41,250 for the new cameras combined with the original 20 for a not-to-exceed amount of $81,250.
WHEREAS, ALPR program has aided the Police Department in enhancing public safety in various ways, such as locating missing persons, identifying and monitoring crime trends, aidin g in criminal investigations and apprehensions, recovery of stolen vehicles, locating of wanted persons, and development of investigative leads in criminal and non-criminal investigations, and ;
WHEREAS, the ALPR program has improved efficiency in investi gations by reducing staff time where other means of gathering similar information is cumbersome. Due to the overall effectiveness of the ALPR technology, staff therefore recommends continuance of the program, and;
WHEREAS, the original 1 -year contract (20 cameras) not-to-exceed amount was $40,000 and the ongoing annual cost for these cameras is $40,000. The additional 1-year contract (15 additional cameras) not- to-exceed amount was $41,250 and the ongoing annual cost for these cameras is $37,500. Extending each of these agreements an additional two years to 2023 and 2024, respectively, would increase the combined total not-to-exceed amount by $155,000, and;
WHEREAS, Flock Group, Inc has submitted the “Amendment” labeled EXHIBIT – A in the amount of $232,500 with a 36 month term based on the “Effective Date” both parties sign with an option to renew the agreement for one three-year period, and ;
WHEREAS, staff recommends adding a contingency of $78,500 (24%) to account for the potential addition of up to ten (10) ALPR cameras for the extent of the proposed agreement (annual cost per camera:
$2,500, plus a $350 one-time implementation fee per camera). The contingency would allow for the timely expansion of the ALPR program, if and as needed, to further a ddress public safety including shifting crime trends, and:
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Resolution No.
WHEREAS, Staff also recommends authorizing the Chief of Police to execute contract change orders in an aggregate amount not to exceed $78,500.
NOW, THEREFORE , the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:
1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
2. The City Council hereby authorizes the City Manager to execute the Extension of the Sole Source Services Agreement with Flock Group, Inc. for Automated License Plate Reader (ALPR) cameras in an amount not to exceed $314,750 , which includes a contingency of $78,500, and renew al of the Agreement for one three-year period subject to annual appropriation of funds.
3. The City Council hereby also authorizes the Chief of Police to execute contract change orders in an aggregate amount not-to-exceed $78,500.
.
PASSED AND ADOPTED this day of , 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: APPROVED:
Suzanne Guzzetta, Acting City Clerk Rich Tran, Mayor
APPROVED AS TO FORM:
Michael Mutalipassi, City Attorney
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Item # C11.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Award IFB 23-009 and Authorize the City Manager to Execute the Purchase Order with Iteris Inc. for the Purchase of Thirty Iteris Traffic Cameras for the Not-to- Exceed Amount of $125,606.25 (Staff Contact: Roger Lee, Interim Director of Public Works 408-586-2602 and Chris Schroeder, Purchasing Agent, 408-586-3161) Category: Consent Calendar-Community Services and Sustainable Infrastructure
Meeting Date: 9/20/2022
Recommendation: Award IFB 23-009 and Authorize the City Manager to execute the purchase order with Iteris Inc. for the purchase of thirty Iteris traffic cameras for the not-to- exceed amount of $125,606.25.
Background:
Public Works is responsible for the repairs, replacement, and minor improvements to streetlights, signage, and traffic control devices. Funding was programmed in FY 2022-2023 Capital Budget for the purchase of thirty traffic signal cameras. These cameras will primarily replace and upgrade existing cameras as well install new cameras at select intersections throughout the City of Milpitas. This enhancement would improve traffic safety and operations.
Analysis:
On March 18, 2022, the City’s Purchasing Division released Invitation for Bid (IFB) No. 22-072 for the purchase of thirty Iteris traffic cameras or equal. The IFB outlined the City’s need for thirty of these cameras as well as associated parts, materials, and components for their successful implementation in the field. Two firms responded to the IFB by the published closing date of April 15, 2022. One firm submitted a “No Bid” response and Iteris Inc. submitted a bid for the camera models specified in the bid documents. The bid received was reviewed by Purchasing staff for compliance and responsiveness. In hopes of soliciting additional bidders, the bid was ultimately rejected and rebid on August 4, 2022 in IFB No. 23-009 . In both solicitations, the City specified the Iteris cameras “or equal” for compatibility with currently deployed models in the field. While the City routinely accepts “or equal” submissions in its solicitations so long as they meet or exceed the specifications of the equipment identified by City staff, none were submitted in response to either IFB.
Each IFB was publicly noticed in accordance with the City’s Municipal Code, advertised on the City’s website, emailed to companies registered with the City via Procurement OpenGov.com, the City’s eProcurement system.
Additionally, each IFB was published on the City’s website.
Upon release of IFB No. 23-009, 823 firms were notified of the bid opportunity and nine firms downloaded the IFB documents. Two firms responded to the IFB by the published closing date of August 26, 2022. Similar to IFB No. 22-072, one firm submitted a “No Bid” response and Iteris Inc. submitted a bid for the camera models specified in the bid documents. The bid received was reviewed by Purchasing staff for compliance and responsiveness and accepted.
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The table below shows the final bid tabulation with the recommended firm highlighted in green:
Purchase of Thirty Iteris
Traffic Cameras
IFB No. 23-009
Iteris Inc.
Thirty Iteris Traffic
Cameras $125,606.25
Policy Alternatives:
Alternative 1: Do not award IFB 23-009 to Iteris Inc. for the Purchase of Thirty Iteris Traffic Cameras
Pros: None.
Cons: If the purchase of traffic cameras is not awarded to Iteris, staff would have to rebid a third time with little expectation of different results.
Reason not recommended: Installation would be further delayed resulting in less than efficient traffic operations at select intersections. If staff is directed to purchase equipment specified as Iteris “or equal”, there would be a likely cost impact related to inefficiencies in maintenance parts and service, and training; and cost increases. Additionally, most the City’s existing traffic cameras are manufactured by Iteris and are compatible with existing controllers and Advanced Traffic Management System (ATMS).
Fiscal Impact:
The bid price for the purchase of thirty Iteris traffic cameras amounts to $125,606.25. Sufficient funding is available in CIP No. 3440 – Annual Street Light, Signal, and Signage. Funding for CIP 3440 comes from the Gas Tax Fund and the General Government CIP Fund. As of June 30, 2022, the balance in CIP 3440 is $182,631.
California Environmental Quality Act:
Not applicable. The selection and contractual arrangement do not constitute a project, in accordance with Section 15378 of the CEQA Guidelines.
Recommendation:
Award IFB 23-009 and Authorize the City Manager to execute the purchase order with Iteris Inc. for the purchase of thirty Iteris traffic cameras for the not-to-exceed amount of $125,606.25.
Attachments:
1. City of Milpitas Purchase Order Terms and Conditions for Equipment 142
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38077.00180\29085216.4 C2
CITY OF MILPITAS - PURCHASE ORDER (EQUIPMENT AND MATERIALS)
PURCHASE ORDER TERMS AND CONDITIONS FOR EQUIPMENT AND MATERIALS
1. Acceptance. This purchase order for equipment and materials issued by the City of Milpitas (“CITY”) to the Vendor designated in the purchase order must be promptly accepted and acceptance is expressly limited to the terms of this order.
Any additions or different terms in the Vendor's forms are hereby deemed to be material alterations and notice of
objection to them and rejection of them is hereby given.
Vendor's shipment of goods in response to this order shall be considered acceptance by the Vendor.
2. Entire Agreement. Unless Vendor and CITY have entered into a separate written contract covering the purchase of the goods described herein, the entire contract between the parties consists of this order and the Vendor's acceptance as above stipulated, and said contract shall not be changed or added to except in writing signed by authorized
representatives of each party.
3. Price. The price invoiced for the goods on this purchase order shall be no higher than the price stated on t he front of this purchase order unless prior notification is received from Vendor prior to shipment and the change is accepted by
CITY. If the Vendor's established price for any item upon the date of delivery shall be lower than the price shown on this purchase order, CITY shall have the benefit of such lower price. Vendor shall deliver to CITY all invoices within 30 days of shipping or service delivery.
4. Payment. Payments will be made net 30 days unless otherwise specified as per agreements regarding discount terms. The period of computation will commence on the date of receipt of a correctly completed invoice. Payment may be withheld, in whole or in part, due to deficiencies in Vendor’s performance. Payment of an invoice by CITY shall be
without prejudice to any and all claims CITY may have
against Vendor in connection with such goods. Invoices are paid on a weekly basis and such practice may result in minor deviations from payment terms otherwise cited herein.
5. Time of the Essence. Time is of the essence on this order.
If delivery is not made in the quantity or quantities and at the time or times specified, CITY shall have the right, at its option, to cancel the entire order or that part of same not so delivered. If CITY accepts delayed delivery the time of payment shall be extended accordingly.
6. Delivery and Acceptance. Vendor expressly warrants that any article, material or work is free and clear of all liens and encumbrances whatsoever, and that Vendor has good and
marketable title to same. Unless otherwise specified, all goods are to be shipped prepaid, F.O.B. destination. No charge will be allowed for packing, crating, freight, express or other carrier's charges, or cartage, unless specifically agreed to by CITY. Title to equipment and materials
purchased hereunder shall pass to Vendor at the designated F.O.B. point, subject to Vendor’s right to inspect and reject or revoke acceptance.
7. Warranty. Vendor warrants for a p eriod of 12 months following start of use or 18 months from receipt, whichever occurs first, that the goods described herein will be free of defects in workmanship, design, materials, and title, and notwithstanding anything herein to the contrary, will conform to all applicable proposals, specifications, instructions, drawings, data, descriptions, and samples, and will be of good and merchantable quality and fit and sufficient for the purpose intended. Vendor shall obtain and provide to CITY Material Safety Data Sheets (MSDS) for each product that contains hazardous substances as defined by CalOSHA. ..
8. Rejection of Goods. CITY shall have the right, at its option, to reject or revoke acceptance of any goods which do not conform to these warranties or t o the specifications. In case of such rejection or revocation of acceptance,
transportation of the rejected goods, both to and from CITY, shall be at the expense of Vendor, said rejected goods are not to be replaced except upon specific instruction from CITY, and CITY shall have the right at its option to cancel the remainder, if any, of the order, by notice to Vendor at the time notice is given of rejection or revocation of acceptance.
Vendor shall be liable to CITY for all damages proximately caused by br each of any of the foregoing warranties,
including incidental damages but excluding special or
consequential damages.
9. Returns. CITY reserves the right to return for full credit any excess over quantity called for in any order or orders.
Vendor to bear the cost of transportation both ways.
10. Force Majeure. Vendor shall not be held responsible for failure or delay in shipping nor CITY for failure or delay in accepting goods described herein if such failure or delay is due to act of God, war, federa l or state legislation or any regulations or orders, fire, accident, or other causes, either similar or dissimilar to the foregoing, beyond their control. In the event of any such excused interference with shipments, CITY shall have the option either to re duce the quantity provided for in the order accordingly or to exercise its right of cancellation as set forth in these terms and conditions.
11. Additional Fees. Unless otherwise required by law or provided herein, Vendor assumes exclusive liability for , and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on or with respect to, or measured by the article sold or material or work furnished hereunder on the wages,
salaries or other remunerations paid to persons employed in connection with performance of this order.
12. No Waiver. No exercise by CITY of its rights hereunder shall constitute a waiver of any rights it may have for breach of contract. CITY's waiver of or failure to enforce its rights on account of Vendor's failure or delay in performing any
obligation of Vendor hereunder, or on account of Vendor's breach of contract in any respect, shall not constitute a waiver of any subsequent failure, delay or breach.
13. Compliance with Law. Vendor shall comply with all
applicable laws and regulations of the federal, state and local government. CITY shall assist Vendor, as requested, in obtaining and maintaining all permits required of Vendor by Federal, State and lo cal regulatory agencies. Vendor is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of his or her Work. Vendor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 e t seq.
(“Prevailing Wage Laws”), which require the payment of
prevailing wage rates and the performance of other
requirements on certain "public works" and "maintenance" projects. If the Work is being performed as part of an
applicable "public works" or "m aintenance" project, as defined by the Prevailing Wage Laws, and if the total
compensation is $1,000 or more, Vendor agrees to fully
comply with such Prevailing Wage Laws. Vendor shall
defend, indemnify and hold CITY, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
Any stop orders issued by the Department of Industrial
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Relations against Vendor or any subcontractor that affect Vendor’s performance of services, including any delay, shall be Vendor’s sole responsibility and Vendor shall indemnify CITY from liability arising out of the same. It shall be mandatory upon the Vendor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor
Code Section 1777.5), certified payroll records (Labor Code Sections 177 1.4 and 1776), hours of labor (Labor Code
Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 1771.1) and debarment of
contractors and subcontractors (Labor Code Sections
1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code
section 1771.4 and to be registered with the Department of Industrial Relations shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1771.4, 1725.5 and 1771.1.
14. Insurance. Vendor sh all take out and maintain: A.
Commercial General Liability Insurance, of at least
$1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01 ; B. Automobile
Liability Insurance for bodily injury and property damage including coverage for owned, non -owned and hired
vehicles, of at least $1,000,000 per accident for bodily injury and property damage, at least as broad as most recent
Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto); C. Workers’
Compensation in compliance with applicable statutory
requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and D. Pollution Liability
Insurance of at least $1,000,000 per occurrence and
$2,000,000 aggregate shall be provided by those Vendors transporting hazardous materials. Insurance carriers shall be licensed to do business in California and maintain an agent for process within the state. Such insurance carrier shall have not less than an "A:VII" rating accordi ng to the latest Best Key Rating unless otherwise approved by CITY.
VENDOR SHALL ENSURE THAT THIRD PARTY
SHIPPERS CONTRACTED BY VENDOR HAVE
ADEQUATE INSURANCE COVERAGE. If attached, Vendor
shall refer to Exhibit “A” – Insurance Requirements, for further insurance requirements applicable to Vendor.
15. Indemnification. The Vendor shall indemnify and hold harmless CITY, its officials, officers, agents and employees from and against any and all claims, liabilities, expenses or damages, including attorneys’ fees, for injury or death of any person, or damage to property, or interference with use of property, or patent infringement or fees for use of patented items, or any claim of the Vendor or sub -contractors for wages or benefits which arise in connection with the sale , delivery and/or installation of equipment or materials, except to the extent caused or resulting from the negligence or willful misconduct of CITY. The foregoing indemnity
includes, but is not limited to, the cost of prosecuting or defending such action with legal counsel acceptable to CITY and CITY’s attorneys’ fees incurred in such an action.
16. Substitutions, Changes and Cancellation. No
substitutions are acceptable unless expressly accepted in writing by CITY. CITY may make changes in the general
scope of this order by giving written notice to Vendor. If any such change affects the cost of or time to deliver or perform under this order, an adjustment in price, delivery or both will be made as CITY determines to be equitable. Vendor may request changes; however, no such change shall be effective unless accepted in writing by CITY. CITY may cancel this order in whole or in part at any time before acceptance of the equipment and materials due to Vendor’s breach or for
CITY’s convenience.
17. Laws, Venue, and Attorneys' Fees. This purchase order shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this purchase order , the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California. In the event of any such litigation between the parties, the prevailing party shall be entitled to recover all reasonable costs incurred, including reasonable attorney's fees, as determined by the court.
18. Contract Terms. Nothing herein shall be construed to give any rights or benefits to anyone other than CITY and the Vendor. The unenforceability, invalidity or illegality of any provision(s) of this purchase order shall not render the other provisions unenforceable, invalid or illegal. Notice may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the parties to the addresses set forth in the purchase order. Vendor shall not assign, sublet, or transfer this purchase order, or any rights under or interest in this purchase order, without the written consent of CITY, which may be withheld for any reason. Vendor is retained as an independent contractor and is not an
employee of CITY. No employee or agent of Vendor shall become an employee of CITY. This is an integrated
agreement/purchase order representing the entire
understanding of the partie s as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. This Contract may not be modified or altered except in writing signed by both parties hereto.
19. Damage to City Facilities. Damage to CITY or public facilities or private property caused by the Vendor or by its subcontractors during delivery or installation shall be repaired and/or replaced in kind at no cost to the CITY.
20. Site S afety and Cleanup. The delivery and installation site shall be kept clean and free of hazards at all times during delivery and installation. After and installation is completed at the site, as applicable, Vendor shall clean the surrounding area to the condition prior to delivery and installation.
21. Installation. If the Vendor is responsible for providing installation services, finished installation work and/or equipment shall be subject to final inspection and
acceptance or rejection by the CITY.
22. Wage Theft Prevention. Vendor, and any subcontractor it employs to complete work under this purchase order, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance. By
entering into this purchase order, Vendor affirms that it has disclosed any final judgments, decisions or orders from a court or investigatory government agency, finding in the five (5) years prior to the date of this purchase order that Vendor or its subcontractor(s) has violated any applicable wage and hour laws. Vendor further affirms that it or its
subcontractor(s) has either fully satisfied each judgment, decision or order, or, if any judgment, decision or order has not been fully satisfied, Vendor affirms that it or its subcontractor(s) is currently satisfying said judgment, decision or order through a payment or alternative plan approved by the applicable c ourt/government agency and that Vendor or its subcontractor(s) are in compliance with 144
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said plan as of the date of this purchase order. If at any time during the term of this purchase order, a court or
investigatory government agency issues a final judgmen t, decision or order finding that Vendor or a subcontractor it employs to perform work under this purchase order has
violated any applicable wage and hour law, or Vendor learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Vendor shall inform the CITY no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Vendor or its subcontractor(s) shall, within thi rty (30) calendar days after notifying the CITY, either (i) fully satisfy any such judgment, decision, or order and provide the CITY with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the CITY documentary evidence of a payment or
other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Vendor or its subcontractor is subject to a payment or other alternative plan, the Vendor or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the purchase order
demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied. For purposes of this provision, a “final ju dgment, decision, or order” refers to one for which all appeals have been
exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United
States Department of Labor, the California Division of Labor Standards Enforcement, the CITY, or any other
governmental entity or division tasked with the investigation and enforcement of wage and hour laws. Failure to comply with any part of this provision constitutes a material breach of this purchase order. Such breach may serve as a basis for immediate termination of this purchase order and/or any other remedies available under this purchase order and/or law. Notice provided to the CITY shall be addressed to:
Attention: Finance Director, 455 E. Calaveras Blvd., Milpitas, CA 95035. The notice provisions of this paragraph are
separate from any other notice provisions in this purchase order and, accordingly, only notice provided to the above address satisfies the notice requirements in this provision.
*OPTIONAL TERMS: Check box if applicable
Custom Design: If the goods are produced by Vendor
in accordance with designs, drawings or blueprints
provided by CITY, Vendor shall return same to CITY
upon completion or cancellation of this order. Any
materials, equipment, tools, artwork, designs or other
property furnished by or specifically paid for by CITY
shall be CITY’s property.
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CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute the Five-Year General Services Agreement with Aramark Uniform Service for Citywide Uniform, Mat, and Linen Services for the not-to-exceed amount of $240,916.30 (Staff Contact: Chris Schroeder, Purchasing Agent, 408-586-3161)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/20/2022
Recommendation: Approve and authorize the City Manager to execute the five-year General Services Agreement with Aramark Uniform Service for Citywide Uniform, Mat, and Linen Services for the not-to-exceed amount of $240,916.30
BACKGROUND:
The City’s current general services agreement for uniform and floor mat service with Unifirst Corporation will expire on November 6, 2022, and a new agreement is required for the continuation of services. The City has historically contracted for these services through a number of iterations. After the expiration of the current agreement for services, the scope of work was revised to better state the City’s desired services and service levels.
Per the labor agreement between the Milpitas Employee Association and the City of Milpitas, the City is required to provide uniform work clothes for employees who are required to wear uniforms on a daily basis.
Uniforms are to identify City employees when they are performing work throughout the city.
Uniforms are currently being provided for approximately 70 employees in the Public Works and Finance departments. The uniforms consist of shirts, pants, and coveralls, depending upon the need of the particular employee or employee classification. Uniforms are turned in on a weekly basis for laundering and repairs and/or replacement as deemed necessary by the vendor or as requested by the department. Additionally, the current contract includes mat and linen services at 13 City facilities.
ANALYSIS:
On July 1, 2022 the City’s Purchasing Division released RFP No. 22-104 for Citywide Uniform, Mat, and Linen Services. The RFP outlined the City’s needs for uniforms for employees, a variety of linen and towel services at multiple city facilities as well as floor mats.
The RFP was publicly noticed in accordance with the City’s Municipal Code, advertised on the City’s website, emailed to companies registered with the City via Procurement and through OpenGov.com, the City’s eProcurement system. Additionally, the RFP was published on the City’s website.
Upon release, 434 firms were notified of the bid opportunity and 13 firms downloaded the RFP documents.
Two addenda were issued, and one clarifying question was answered by City staff. Of the firms that downloaded the bid documents, one (1) firm responded to the RFP by the published closing date of August 4, 2022. The bid received was reviewed by Purchasing staff for compliance and responsiveness and was accepted.
The companies that continued in the evaluation process were:
1. Aramark Uniform Services
The evaluation committee reviewed proposals based on the following criteria:
1. Cover letter and Compliance with RFP Requirements
2. Personnel Assigned 146
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3. References
4. Execution Plan for Services
5. Company Profile
6. Proposed Compensation
After an initial evaluation by four City staff members who comprised the evaluation committee, Aramark was invited to and attended an interview to gather further information regarding their proposals and offer the evaluation committee the opportunity to ask clarifying questions before forwarding a recommendation for award to the City Council. Interviews were held at the Department of Public Works on August 25, 2022.
Additionally, the Aramark proposal included customers that are public agencies with operational services comparable to the City.
The table below shows the final evaluation scores with the recommended firm highlighted in green:
Citywide Uniform, Mat, and
Linen Services
RFP No. 22-104
Aramark
Uniform
Services
Final Evaluation Score 76.13
Aramark will provide weekly servicing and laundering services for the City’s uniforms, linens, towels, and mats via their Hayward offices. Aramark utilizes commercial facilities which are able to recycle the water used at their plant. The laundering detergent is also environmentally friendly, using Ecolab laundry products. The products that Aramark utilizes in their operations meet the requirements of being nonylphenol ethoxylates free (NPE free) and phosphate free, an industry-wide sustainability benchmark for industrial laundry products.
POLICY ALTERNATIVE(S):
Alternative 1: Do not award RFP No. 22-104 to Aramark Uniform Services for Citywide Uniform, Mat, and Linen Services.
Pros: None.
Cons: The City would not commit to the five-year delivery of these union required services for multiple departments including, Fire, Police, Public Works, Finance, among others.
Reason not recommended: The City is required to provide uniform services for a number of its field employees as well and towel and linen services. Floor mats also provide additional safety when entering and traveling in City facilities during wet weather.
FISCAL IMPACT:
Funding for this agreement is available in the various department’s operating budget for FY2022-23 and future year appropriations will be a part of the budget development.
California Environmental Quality Act (CEQA):
Not applicable. The selection and contractual arrangement do not constitute a project, in accordance with Section 15378 of the CEQA Guidelines.
RECOMMENDATION:
Award RFP No. 22-104 and Authorize the City Manager to execute the general services agreement with Aramark Uniform Services to provide Citywide Uniform, Mat, and Linen services.
Attachment(s):
1. General Services Agreement with Aramark Uniform Services 147
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CITY OF MILPITAS
AGREEMENT FOR CITYWIDE UNIFORM, MAT, AND LINEN SERVICES
1. PARTIES AND DATE.
This Agreement for CITYWIDE UNIFORM, MAT, AND LINEN SERVICES (“Agreement”) entered into this ________________________ by and between the City of Milpitas, a municipal corporation organized under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”) and ARAMARK Uniform & Career Apparel Group, Inc. dba ARAMARK UNIFORM AND CAREER APPAREL, LLC , a corporation, with its principal place of business at 31148 San Antonio Street, Hayward, CA 94544 (“Contractor”). City and Contractor are sometimes individually referred to a s “Party” and collectively as “Parties” in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain CITYWIDE UNIFORM, MAT, AND LINEN SERVICES required by City on the terms and conditions set forth in this Agreement. Contractor represents that it is experienced in providing CITYWIDE UNIFORM, MAT, AND LINEN SERVICES to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Contractor to render such services for the CITYWIDE UNIFORM, MAT, AND LINEN SERVICES – No. 22-104 project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the services and advice on various issues affecting the decisions of City regarding the Project and on other programs and matters affecting City (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term or Time of Performance.
The term of this Agreement shall be from November 7, 2022 to November 6, 2027, unless earlier terminated as provided herein. The City reserves the right to review the Contractor’s performance at the end of each year and cancel all or part of the Agreement.
3.2 Responsibilities of Contractor.
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2 3.2.1 Control and Payment of Subordinates; Independ ent Contractor . The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee of City. Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf o f Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disabi lity insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the skilled personnel required to perform the Services in conformance with such conditions.
In order to facilitate Contractor's conformance with the Schedule, City shall respond to Contractor's submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements . All work prepared by Contractor shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel . Contractor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Contract or may substitute other personnel of at least equal competence and experience upon written approval of City. In the event that City and Contractor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to City, or who are determined by City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat t o the safety of persons or property, shall be promptly removed from the Project by Contractor at the request of City. The key personnel for performance of this Agreement are as follows: Carmelo Colon
3.2.5 City's Representative . City hereby designates Chris S chroeder, Purchasing Agent, or his or her designee, to act as its representative for the performance of this Agreement (“City's Representative”). City's Representative shall have the power to act on behalf of City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than City's Representative or his or her designee.
3.2.6 Contractor's Representative . Contractor hereby designates Carmelo Colon, Regional Account Executive, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor's Representative”). Contractor's Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Agreement. Contractor's Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
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3 3.2.7 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City's staff, contractors and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by contractors in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including any required business license, and that such licenses and approvals shall be ma intained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from City, any services necessary to correct errors or omissions which are caused by Contractor's failure to comply with the standard of care provided for herein, and shall be fully responsible to City for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising f rom the Contractor’s errors and omissions.. Any employee of Contractor or its subcontractors who is determined by City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to City, shall be promptly removed from the Project by Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving wr itten notice to City, Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10 Insurance. Contractor shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under Exhibit “D” (Insurance Requirements), attached hereto and incorporated herein by this reference. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required therein.
3.2.11 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulati ons, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: ( A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, 150
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4 equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit ”C” attached hereto and incorporated herein by reference. The total compensation shall not exceed TWO HUNDRED FORTY THOUSAND NINE HUNDRED SIXTEEN DOLLARS AND THIRTY CENTS ($240,916.30) without written approval of City’s City Manager or their designee.
Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation . Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within forty -five (45) days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.3.4 Extra Work . At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at th e execution of this Agreement.
Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative.
3.3.5 California Labor Code Requirements
(a) Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll r ecords (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commiss ioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. 151
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5 (b) If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registr ation for the duration of the Project and require the same of any subcontractors, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. (c) This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s perform ance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection . Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
(a) Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contract or shall be compensated only for those services which have been fully and adequately rendered to City through the effective date of the termination, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. (b) Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request. (c) Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 152
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6 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
Aramark Uniform Services
31148 San Antonio Street
Hayward, CA 94544
Attn: Carmelo Colon
City:
City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Purchasing Agent
Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.4 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.5.5 Indemnification. To the fulle st extent permitted by law, Contractor shall defend, indemnify and hold City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, subcontractors and subc ontractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages, attorneys’ fees and other related costs and expenses. Contractor shall defend, at Contractor's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its officials, officers, employees, agents or volunteers.
Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse City and its officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs, including reasonable attorneys’ fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by City or its officials, officers, employees, agents or volunteers. This Section 3.5.5 shall survive any expiration or termination of this Agreement.
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7 3.5.6 Entire Agreement. This Agreement contains t he entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended or modified by a writing signed by both Parties.
3.5.7 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Santa Clara County.
3.5.8 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.9 City's Right to Employ Other Contractors. City reserves the right to employ other Contractors in connection with this Project.
3.5.10 Successors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.
3.5.11 Assignment or Transfer . Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.12 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the vari ous articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.14 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or ser vice voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.5.15 No Third Party Beneficiaries . There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.17 Prohibited Interests . Contra ctor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not 154
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8 paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.18 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of any minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.5.19 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code 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 agrees to comply with such provisions before commencing the performance of the Services.
3.5.20 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.22 Employment Adverse to City. Contractor shall notify City, and shall obtain City’s written consent, prior to accepting work to assist with or participate in a third -party lawsuit or other legal or administrative proceeding against City during the term of this Agreement.
3.5.23 Conflict of Employment. Employment by Contractor of personnel currently on the payroll of City shall not be permitted in the performance of this Agreement , even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by Contractor of personnel who have been on City’s payroll within one year prior to the date of exec ution of this Agreement, where this employment is caused by and or dependent upon Contractor securing this or related Agreements with City, is prohibited.
3.5.24 Survival. All rights and obligations hereunder that by their nature are to continue after any expira tion or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination.
3.5.25 Subcontracting. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
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9 3.5.26 Wage Theft Prevention
(a) Contractor, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance. (b) BY SIGNING THIS AGREEMENT, CONTRACTOR AFFIRMS
THAT IT HAS DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNM ENT AGENCY, FINDING IN THE FIVE (5) YEARS
PRIOR TO EXECUTING THIS AGREEMENT THAT CONTRACTOR OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS.
CONTRACTOR FURTHER AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS EITHER
FULLY SATISFIED EACH J UDGMENT, DECISION OR ORDER, OR, IF ANY JUDGMENT,
DECISION OR ORDER HAS NOT BEEN FULLY SATISFIED, CONTRACTOR AFFIRMS THAT
IT OR ITS SUBCONTRACTOR(S) IS CURRENTLY SATISFYING SAID JUDGMENT, DECISION
OR ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN APPROVED BY T HE
APPLICABLE COURT/GOVERNMENT AGENCY AND THAT CONTRACTOR OR ITS
SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.
(c) If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Contractor or a subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or Contractor learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Contractor shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Contractor or its subco ntractor(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Contractor or its subcontractor is subject to a payment or other alternative plan, the Contractor or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.
(d) For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired.
Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws. (e) Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law. (f) Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section. 156
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10 [Signatures on following Page]
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11 SIGNATURE PAGE FOR AGREEMENT
FOR Citywide Uniform, Mat, and Linen SERVICES
BETWEEN THE CITY OF MILPITAS
AND ARAMARK UNIFORM SERVICES
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.
CITY OF MILPITAS
Approved By:
Steven G. McHarris, City Manager
Date
Approved:
Lauren Lai, CPA, MPA
Finance Director/Risk manager
Approved As To Form:
Michael Mutalipassi, City Attorney
ARAMARK UNIFORM SERVICES
Signature
Name
Title
Date
Approved As To Content:
Chris Schroeder
Purchasing Agent
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12 EXHIBIT “A”
SCOPE OF SERVICES
1 The Contractor shall provide weekly rental, maintenance and laundry services of work related garments, for the City of Milpitas’ various departments and/or divisions listed in this attachment. Items to be furnished include, but are not limited to, shirts, pants, coveralls, aprons, towels, mats/rugs and similar items, and the laundering, repair, and/or replacement of these items. Clothing shall be delivered to the locations designated, laundered and maintained in good condition and repair, in accordance with these specifications. All uniforms shall be placed on hangers unless Department Contact makes other arrangements.
2 Initial Issue of Uniforms
2.1 At the commencement of the contract, the Contractor shall issue new, unwashed and unworn uniforms and other garments prior to the start of this agreement.
2.2 The Contractor shall provide each employee with up to nine (9) sets of uniforms unless otherwise designated by the Department contact. A uniform may consist of work shirt (short or long sleeve) pants or shorts,
2.2.1 Aprons and/or coveralls shall be in addition to the uniform requiremen t and vary between job function and department.
2.3 During the Contract period, the Contractor shall maintain sufficient stock to provide complete uniforms and other items within seven (7) working days to employee hired. In addition, the Contractor shall have loaners available during these seven (7) days. All such garments shall be new.
3 Charge
3.1 Pick-up and delivery charge, if any, shall be included in the unit bid price. Bid prices represent the cost for: Garment for City designated employees; the laundering of such garments; the required changes per employee per week; other items such as mats, mops, towels etc.; the delivery and pick -up of said garments; and other requirements listed and the Contractors Responsibilities of this contract.
3.2 The contractor shall submit “replacement cost” detailing charges for lost or damaged uniforms with bid on the Exhibit C - Bid Pricing Form (excessive charge(s) may be a cause for rejection of bid). The Contractor’s price shall be set at per unit cost, without increased variance in cost due to choices in change of garment. Charges not allowed include: extra-suit charges, prep- charges, and emblem mounting or cleaning charge, buy back costs or charges for large sizes or 159
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13 hemming or other alterations needed for proper fitting uniforms.
4 Measurement, Fit, Colors and Emblems (patches)
4.1 The Contractor shall be responsible for individual measurement and resultant fit of all garments provided, to include changed size requirement of individual which shall occur within five (5) working days fr om the date of request, and shall provide the employee with uniforms within ten (10) working days of the date measured.
4.2 Any tailoring required to assure proper fit for each individual shall be done at no additional cost to the City. When the Contractor is measuring division personnel for uniforms, the Contractor shall have samples of each type of uniform in various sizes available for Division personnel to try on.
4.3 Colors of uniform items shall be as designated by the City’s Purchasing Agent and selected from manufacturer's standard colors which shall include international orange.
4.4 The Contractor shall provide name patches with either the employee's first name, or both first and last name depending on the department/division’s request. The background of the patch shall be white in color The Contractor shall adhere by sewing outside perimeter of patch to shirts at no cost to the City. Name patches shall be located over the left shirt pocket.
4.5 The Contractor shall provide a patch with the color City of Milpitas se al and the verbiage “CITY OF MILPITAS” to the left of the seal. The background of the patch shall be white in color. The Contractor shall adhere by sewing outside perimeter of patch to shirts at no cost to the City. City Seal patches shall be located over the right shirt pocket.
5 Identification System: The Contractor shall provide a clean and inconspicuously marked or labeled identification system that identifies each employee and garment to ensure that employees get the same garment after cleaning.
6 Description of Clothing
6.1 Coveralls are long sleeved, one-piece coveralls, bi-swing back, and zipper front, cuff- less in a blend of 65% polyester and 35% cotton, plain twill, 7-8 oz. per square yard, with heavy- duty full- length two-way brass zipper with gripper at neck, fly front or 100% cotton with buttons.
Two breast pockets, two slash style, front pockets and two rear hip pockets. All stitching with polyester thread, double stitched seams and bar tacked for reinforcement at points of strain. Must be available in all sizes at no additional cost, color as selected from manufacturer's standard colors including international orange at no additional cost.
6.2 Pants will be slack type, work type or jean cut, plain front, with no cuff. 65% Dacron polyester and 35% cotton , or 100% cotton work, fabric vats dyed, sun fade and acid resistant.
Permanent press finish, 7 -8 oz. per square yard. Color to be selected from manufacturer's standard colors. 100 % spun polyester or cotton coated polyester thread in matching colors with 8 to 12 stitches per inch. Bar tacked at points of strain. Pants shall have full cut for roomy fit, button closure at waist, heavy duty taped brass zipper and inner lined waistband with belt loops. 160
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14 Pants shall have two inserts, slack style front pockets and two inset hip pockets. Triple- stitched, feld-locked outer seams, and permanent creases. Pants must be available in both men and women styles and in all sizes at no additional cost. Pants color shall be selected from manufacturer's standard colors at no additional cost.
6.3 Shorts will be slack type, plain front, with no cuff. 65% Dacron polyester and 35% cotton, or 100% cotton work, fabric vats dyed, sun fade and acid resistant. Permanent press finish, 7-8 oz. per square yard. Color to be selected from manu facturer's standard colors. 100 % spun polyester or cotton coated polyester thread in matching colors with 8 to 12 stitches per inch. Bar tacked at points of strain. Pants shall have full cut for roomy fit, button closure at waist, heavy duty taped brass zipper and inner lined waistband with belt loops. Shorts shall have two inserts, slack style front pockets and two inset hip pockets. Triple- stitched, feld-locked outer seams, and permanent creases. Shorts must be available in both men and women styles and in all sizes at no additional cost. Shorts color shall be selected from manufacturer's standard colors at no additional cost.
6.4 Shirts shall be two -patch spade style or die cut round, breast pocket of shirt fabric, each with button and vertical buttonhole, no metal snaps. 65% Polyester, 35% cotton work or Cotton Dura or Indura soft. Two pockets with button closure flap. Two-piece lined button closure cuff and lined two-piece banded collar. Must be available in both men and women styles and in all sizes at no additional cost. Shirts color shall be selected from manufacturer's standard colors at no additional cost.
7 Pick-up and Delivery Specifications
7.1 For clothing items, the Contractor shall collect and make delivery at least once per week to each of the departments/divisions listed in Exhibit D for clothing items. For all other items, the Contractor shall collect and make regular delivery based on the schedule determined by the Purchasing Agent or their designee.
7.2 The Contractor shall be responsible for equival ent replacement and cost of any garment(s) that are lost or damaged while in the possession of the Contractor between points of pick-up to point of delivery.
7.3 Currently there are 13 service locations throughout the City. The City reserves the option to relocate, reduce or increase pick-up and delivery points at no additional cost to the City.
7.4 The department pick -up/delivery location(s) of each department included in the contract listed in City of Milpitas Service Locations.
8 Startup Requirements
8.1 The Contractor shall provide each employee with up to nine (9) sets of uniforms unless otherwise notified by Department Contact. Uniforms shall consist of a work shirt and work pants, or shorts. One (1) uniform will be worn, four (4) will be sent in for laundry, and four (4) will be clean and available at the work site.
8.2 The Quantities of uniforms required for “startup” are indicated in Exhibit C – Bid Pricing Form. The Contractor shall include the “startup” cost with its price submission and shall not charge 161
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15 the City with “startup” cost.
8.3 The Contractor shall provide new garments (Grade A) upon initial inventory for existing permanent or temporary employees, and any new/additional permanent City employees thereafter regardless of hire date. All garments for permanent and temporary/seasonal employees must have the employee's standard cloth nametags affixed to the garment as designated by the Purchasing Agent from date of issue. In addition, patches detailed in Section 4.4 and Section 4.5 shall be approved by the Purchasing Agent and shall be provided and attached to the garment(s) when required, at no additional cost to the City.
8.4 The Contractor shall provide qualified personnel to measure and fit on-site for the initial order and all added users. Two (2) on -site fittings shall occur at a mutually agreeable time and date between the Contractor and the Purchasing Agent at the City of Milpitas Corp Yard located at 1265 N. Milpitas Boulevard. The Contractor shall provide various sizes to individuals and any oversized garments required at no additional cost to the City. Each garment shall be fitted to the satisfaction of the individual employee. In addition, fittings and alterations shall be taken on -site throughout the term of the contract, when necessary. When questions suc h as proper fit arise, the Contractor shall follow the City’s representative’s decision and make changes accordingly.
8.5 The Contractor shall designate an account manager and maintain sufficient staff and facilities to properly and adequately perform all serv ices requested under the contract and all related issues.
8.6 Prior to the sizing of garments, the Contractor shall confer with and advise the Purchasing Agent or their designee on garment tag information.
8.7 The Contractor shall be responsible for identifying a nd accounting for each garment, ensuring that garments picked up from a specific area are returned to the same area and the same user.
8.8 The Contractor shall maintain an inventory for the designated amount of garments authorized by the City representative for each employee by department and division.
8.9 The Contractor shall deliver all garments in wearable (wrinkle -free) condition for placement in the designated areas. No starch or similar product shall be used. If the Contractor delivers any items to the wrong location and the garment(s) are not recovered at its original location; the Contractor is responsible for its replacement.
8.10 The Contractor shall provide garment dispensers and/or clothing bins and portable garment rack to requesting departments, as well as the delivery of clean garments and removal of soiled garments from bins, all at no additional cost to the City.
8.11 The City requires a minimum of once a week pickups and a one -week turn-around time on delivery, every week. Contractor shall schedule City’s ser vice day for Tuesday, Wednesday or Thursday (excluding Holidays). Normal hours for pickup and delivery are between 7:00 a.m. and 4:00 p.m. unless otherwise agreed upon by the Contractor and Department/Division Contact. The Contractor shall make an agreed upon holiday delivery schedule at least one week prior to the holiday with each City Department representative to maintain the weekly pick-up and delivery schedule.
8.12 The Contractor shall be responsible to replace the rented items that are damaged, worn out, or can no longer be worn. The Contractor shall inspect and identify garments that need 162
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16 to be replaced on site, provide an estimate of cost and obtain an approval from the Department representative before taking any damaged garments off site. The City shall not be responsible for any garment replacement charges not approved by the Purchasing Agent and/or Department’s representative.
8.13 Any garment requiring replacement shall be replaced within seven (7) calendar days.
8.14 The Contractor shall have adequate quality control to ensure that all broken button, broken zippers, torn or stained uniforms, or other defects are corrected, or the garment replaced before delivery. Uniforms worn or otherwise unsuitable for service shall be replaced as a routine matter.
8.15 The Contra ctor shall identify damaged or un -cleanable units before the units are returned to the City department on the following delivery date. Replacement garments shall be new, unwashed, and unworn. The City shall refuse payment for garments that do not present a satisfactory appearance to wear in public. In addition, incorrect counts and items with inappropriate markings must be rectified within one week of the error. Otherwise, garments shall be replaced/upgraded due to normal wear and tear during the duration o f the contract, with new garments at no additional cost to the City.
8.16 If garments need repair, the Contractor shall provide repair tags for City employees and provide a separate bin and marked as such for garments that need repair in each pick -up and delivery location.
8.17 All repairs shall be done with “like” materials to all garments including zipper replacement and broken, bent or missing buttons of equivalent quality.
8.18 The Contractor shall make all repairs to the satisfaction of the City’s Department Representatives. Repairs shall be identified with a “No Charge” repair tab placed on the garment(s).
8.19 The Lost Replacement Rate shall remain firm for the duration of the contract. The company's quality control specifications and procedures pertaining to all garment and laundry services shall be provided under this contract. Said garments and services specifications include:
Wear and Tear policy, Upgrading and Replacement policy.
9 Performance
9.1 In the event the Contractor fails to perform satisfactory service under the terms of the contract, the City may issue the Contractor a written notice of unsatisfactory performance and the Contractor shall improve its performance within thirty (30) days aft er receiving such notice from the City. The City may at its sole discretion terminate the contract. Termination of the contract for unsatisfactory performance shall relieve the City of all further obligation to the Contractor with the exception of returning all issued garments and linen items belong to the Contractor. No payment of money made to the Contractor by the City shall be construed as a waiver of any right of the City under the Contract.
9.2 Factors which may be used to determine the Contractor’s perfo rmance level include 163
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17 but are not limited to:
9.2.1 Initial issue of uniforms and other items
9.2.2 New or additional employees
9.2.3 Measurement, fit colors and emblems
9.2.4 Inventory changes and items
9.2.5 Marking/ identification procedures
9.2.6 Delivery concerns
9.2.7 Quality control
9.2.8 Pricing adherence
9.2.9 Invoicing, excessive, or incorrect charges on statements
10 Compensation
10.1 Calculations for Adds/Deletes, etc.
10.1.1 For items increased or decreased, added or deleted, charges shall be adjusted by multiplying the unit price of the item involved by the number of such units added or decreased, the result to be added to or subtracted from the total charges. In all cases, charges to the City shall represent only the items and numbers of items actually used.
11 Replacement/Loss Charges
11.1 If items are lost or destroyed by the City employees, The Contractor shall use the “replacement cost” charge shown in Attachment C - Bid Pricing Form for garments in service up to one (1) year. For garments in service more than one (1) year, but less than two (2) years, the charge shall be fifty percent (50%) of the “replacement cost” charge quoted. For garments in service two (2) years or more, there shall be no charge. The Contractor shall be responsible to determine the length of time a garment has been in service when verification is requested by the City.
12 Absences
12.1 Employees on extended absence or leave from the City, or whose employment is terminated, will return all uniforms and all charges shall be eliminated for that employee during such absence.
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18 13 Invoices and Statements
13.1 A Citywide open purchase order will be issued for all City departments by division using the Contractor's services.
13.2 The City requires a separate invoice for each division and/or department; the invoices/summary statement shall be mailed at the end of eac h month to the Billing contact of each using department along with the individual delivery receipts/packing slips for items supplied during that month. The City will provide a list of division/department contacts with billing addresses to the Successful Bidder.
13.3 The statement will be paid after all receipts/packing slips are checked for accuracy against the summary statement. Discrepancies that cannot be resolved will not be paid and should be reflected on the next month's statement as a balance forward.
13.4 All invoice charges must be aggregated such that users receive the contract rate and services. All discounts and credits shall be clearly shown on the face of the invoice.
13.5 All billing corrections and/or credits shall be shown on the face of the invoice the week after Contractor is notified of the correction and/or credit by the City.
14 Transition Plan
14.1 The Contractor must include a description of its proposed transition plan that would ensure a smooth transition for uniform rental and laundry services from the current service provider with its bid submission. Bidder’s transition plan shall be separate from the other items in the Proposer’s bid packet and shall be in PDF form only.
14.2 The implementation schedule must detail all phases, dates, milestones and locations (locations provided by the City) to complete service transition by November 8, 2022 with minimal disruption to City departments. The actual date period of the implementation schedule submitted may be adjusted in accordance to an agreed start date of the new contract.
14.3 The Contractor’s transition plan elements shall include, but not be limited to:
14.3.1 Create data base for City Departments
14.3.2 Meet with Departments and determine garment requirements (size and type) of City employees
14.3.3 Forecast/order/ship "new" products
14.3.4 Prepare necessary routing, set up delivery schedules and invoicing procedures
14.3.5 Timeline of conducting garments installation for all locations
14.3.6 Audit installations, identify open issues
14.3.7 Allow for two (2) separate days for City staff to place orders, try on samples, confirm orders, etc. with successful firm to provide all staff, support, supplies and equipment necessary for such tasks to be accomplished. City will direct vendor as to 165
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19 location upon award and confirmation of dates.
14.3.8 Provide a definitive deadline for completed delivery of samples of specialty garments for City Department ordering within the prescribed implementation process period.
15 The Contractor shall be responsible for all charges to obtain permits and/or licenses necessary to perform required services at no cost to the City.
16 Contractor shall perform preventative maintenance and requested repairs in a professional manner conforming to generally accepted industry standards. City must report any problems, defects and/or deficiencies with any repair within five (5) calendar days of performance of the service. In the event Contractor receives such notice form City, then Contractor shall re-perform the repair service at no cost to the City.
17 City acknowledges and agrees the Contractor SHALL NOT disclose City’s name on Contractors client lists and other promotional material without prior written consent from City.
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20 18 City holidays change each year, IT IS THE RESPONSIBILITY OF THE
SUCCESSFUL BIDDER TO ENSURE SMOOTH AND COMPLETE DELIVERY OF ALL SERVICES EACH WEEK REGARDLESS OF CITY'S HOLIDAY CLOSURES. No services shall be attempted on City Holidays. Below is a sample of the City’s 2022 holiday schedule for reference only.
2022 DATES HOLIDAY
December 31 New Year’s Day Holiday observed
January 17 Martin Luther King Jr.’s Birthday
February 11 Lincoln’s Birthday Observed (MEA only)
February 21 Presidents Day
March 31 Cesar Chavez Day (IAFF, POA, MidCon, ProTech & Unrep only) May 30 Memorial Day
July 4 Independence Day
September 5 Labor Day
November 11 Veteran’s Day
November 24-25 Thanksgiving Holiday
December 23 Christmas Eve Holiday observed
December 25 Christmas Holiday observed
19 City of Milpitas Service Locations
Note: Some locations may have multiple locations requiring services. Successful Bidder and City to review and agree upon suitable number of stops and/or service locations prior to the commencement of services.
1. City Hall - 455 E. Calaveras Blvd.
2. Sal Cracolice Recreation Facility – 791 Garden Ct.
3. Sports Center – 1325 E. Calaveras Blvd.
4. Barbara Lee Senior Center – 40 N. Milpitas Blvd.
5. Community Center – 457 E. Calaveras Blvd.
6. Police Department – 1275 N. Milpitas Blvd.
7. Public Works (Admin) 1265 N. Milpitas Blvd.
8. Public Works (Corp Yard) 1265 N. Milpitas Blvd.
9. Public Works (Fleet) 1265 N. Milpitas Blvd.
10. Fire Station #1 – 777 S. Main St.
11. Fire Station #2 – 1263 Yosemite Dr.
12. Fire Station #3 – 45 Midwick Dr.
13. Fire Station #4 – 775 Barber Ln.
20 Sample Patches (continued on following page)
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21 City Seal (Left Side)
Name (Right Side)
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22 Exhibit “B”
Schedule of Services
Date Item
25 August 2022 Notice of Intent to Award
31 August 2022 Fitting Day No. 1
1 September 2022 Fitting Day No. 2
6 September 2022 City Council Date for Formal AWARD
31 October 2022 Delivery of Uniforms for Following Week, Begin collecting of outgoing vendor materials
7 November 2022* Services Start, continued assistance with outgoing vendors materials until complete*
14 November 2022 Services fully transitions and outgoing vendor materials returned
*Note: City of Milpitas requesting hand sort of materials for first two weeks to ensure maximum capture of outgoing vendor materials
On-going Services
For clothing items, the Contractor shall collect and make delivery at least once per week to each of the departments/divisions listed in Exhibit D for clothing items. For all other items, the Contractor shall collect and make regular delivery based on the schedule determined by the Purchasing Agent or their designee.
The Contractor shall be responsible for equivalent replacement and cost of any garment(s) that are lost or damaged while in the possession of the Contractor between points of pick- up to point of delivery.
Currently there are 13 service locations throughout the City. The City reserves the option to relocate, reduce or increase pick-up and delivery points at no additional cost to the City. The department pick-up/delivery location(s) of each department included in the con tract listed in City of Milpitas Service Locations.
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23 EXHIBIT “C”
COMPENSATION
[BEGINS ON FOLLOWING PAGE]
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24 EXHIBIT “D”
INSURANCE REQUIREMENTS
Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor’s or Consultant’s Agreement.
Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant, its agents, representatives, employees or subcontractors.
Contractor or Consultant shall provide its insurance broker(s)/agent (s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements.
Contractor or Consultant shall furnish City with copies of original endorsements affecting coverage required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contr actor’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.
Commercial General Liability (CGL):
___ Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
_X_ Coverage at least as broad as ISO Form CG 00 01 cov ering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies, either the gen eral aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Automobile Liability:
_X_ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage.
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25 ___ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single liit for bodily injury and property damage.
___ Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.
Professional Liability (Errors and Omissions):
___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate.
___ (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.
___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than ______ per occurrence or claim, ______ aggregate
Workers’ Compensation Insurance:
X_ Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor or Consultant provides written verification it has no employees)
The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.
Builder’s Risk (Course of Construction):
___ Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major recons truction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Wo rk, including during transit, installation, and testing at the City’s site.
Contractor’s or Consultant’s Pollution Legal Liability:
___ Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.
If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shal l be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
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26 Cyber Liability Insurance
___ Cyber Liability Insurance with limits not less than $1,000,000 per claim.
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor or Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of pr ivate information, alteration of electronic information, extortion, and network security.
The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.
Surety Bonds:
Contractor shall provide the following Surety Bonds:
____ Bid Bond
____ Performance Bond
____ Payment Bond
The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.
Other Insurance Provisions:
The insurance policies are to contain, or be endorsed to contain the following provisions:
X_ Additional Insured Status and Primary/Non-Contributory Language:
Contractor’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its elected and appointed officials, officers, attorneys, agents employees and volunteers as additional insureds under such policies using Insurance Services Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.
The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
___ Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)
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27 Contractor or Consultant may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.
___ Notice of Cancellation, Suspension or Otherwise Voiding Policies:
Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.
X_ Waiver of Subrogation:
Contractor or Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor or Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.
___ Completed Operations
For Construction Agreements, Contractor shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Contractor fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor.
THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS
Deductibles and Self-Insured Retentions (“SIR”):
Any deductibles or self -insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.
All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.
Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.
City reserves the right to obtain a full -certified copy of any insurance policy and endorsements.
Failure to exercise this right shall not constitute a waiver of right to exercise later.
Acceptability of Insurers:
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28 Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A -:VII, unless otherwise acceptable to City.
Claims Made Policies: (note - should be applicable only to professional liability, see below)
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.
3. 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 Contractor or Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
Subcontractors:
Contractor or Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.
Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents.
Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to the extent they apply to the scope of the sub -subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request.
Verification of Coverage:
Contractor or Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor or Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Special Risks or Circumstances
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29 City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
Failure to Comply:
Each insurance policy required above shall contain or be endo rsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.
Applicability of Coverage:
Each insurance policy required above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 176
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CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Consider Sunnyhills Neighborhood Association Fee Waiver Request (Staff Contact: Renee Lorentzen, Director of Recreation and Community Services, 408- 586-3409)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 9/20/2022
Recommendation: Approve a Fee Waiver of $1,317 for the Sunnyhills Neighborhood Association Halloween Event scheduled for October 29, 2022.
BACKGROUND:
On September 6, 2022, Councilmember Dominguez with consensus of the Council, asked staff to return with the Fee Waiver request for the Sunnyhills Neighborhood Association’s Halloween Event scheduled for October 29, 2022 at Sunnyhills Augustine Park.
ANALYSIS:
With staff guidance, Sunnyhills Neighborhood Association (Sunnyhills) submitted the required applications and documentation for the Halloween event which includes:
- Open Space Rental Application for Sunnyhills Augustine Park - Special Event Permit Request and required attachments - City Council Donation and Fee Waiver/Reduction Policy request
Sunnyhills is requesting that City Council waive eligible fees for the Open Space Rental, Special Event Permit and staffing in the amount of $1,317. Fees ineligible for waiver include the open space rental application fee of $31 and refundable security/damage deposit of $1,000. Refundable security/damage deposits are refunded within 30 days of the rental.
Milpitas City Council adopted an updated “City Council Donation and Fee Waiver/Reduction Policy” on June 21, 2022. Per the policy, eligible organizations can request City fees to be waived up to $1,500 or a donation amount up to $500 to be granted upon request. Eligible organizations are defined as “a non-profit organization as described by the Internal Revenue Section such as 501(c)(3) or an intergovernmental agency; Non- discriminatory, and non-political in nature.” Fee Waiver or Donation requests for events must provide a community benefit within the City of Milpitas proper. Applying organizations must provide proof of non-profit status from the federal Internal Revenue Service or the state Franchise Tax Board.
As required, the Sunnyhills Neighborhood Association provided a copy of its determination letter from the Internal Revenue Service stating it is a tax-exempt organization and meets the requirements as outlined in the Council adopted Fee Waiver Policy.
POLICY ALTERNATIVE(S):
Alternative: Do not approve the fee waiver as requested.
Pros: The City’s General Fund will not incur the costs of the fees waived.
Con: Denial of the request may not allow the non-profit organization to hold the event at Augustine Park.
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Reason not recommended: This request is consistent with the Council approved Policy.
FISCAL IMPACT:
$25,000 was approved and included in the FY 2022-23 City budget for City Council’s Unallocated Community Promotions. If this request is approved by City Council, then $22,183 would remain in that line item of the current year’s budget.
RECOMMENDATION:
Approve a Fee Waiver of $1,317 for the Sunnyhills Neighborhood Association Halloween Event scheduled for October 29, 2022.
Attachment(s):
1. Application and Internal Revenue Service (IRS) non-profit letter
2. City Council Donation and Fee Waiver/Reduction Policy 178
Item # C14.
C
ITY OF MILPITAS, CALIFORNIA
STANDARD OPERATING PROCEDURE
S
UBJECT: CITY COUNCIL DONATION AND FEE WAIVER/REDUCTION POLICY
1. Purpose
The City of Milpitas recognizes the value of partnership with other agencies and organizations in providing services that benefit the community and its residents. To that end, the City may provide a donation or grant a reduction and/or waiver of fees to intergovernmental agencies or non-profit organizations that provide Milpitas community benefit.
2. Donation and Fee Waiver Budget
With each budget cycle, the City Council will establish an annual budget amount for donations or fee waivers/ reductions for unspecified community events. Except for extraordinary circumstances, donations and or fee w
aivers/reductions will not be granted once the budgeted amount has been expended.
3. Requirements
a) A
ny requests for donation or fee waiver/reduction must be submitted in writing using the attached application form.
b) Requests for donations or fee waivers/reductions will be considered by the City Council during a regularly scheduled meeting.
c) To be eligible, the organization must be a non-profit organization as described by the Internal Revenue Section such as 501(c)(3) or an intergovernmental agency. In either case, only events that provide community benefit within the City of Milpitas shall be eligible. If fund raising is involved, the organization must demonstrate that at least 60% of fund raised will be of general benefit to the Milpitas community. The organization must be non- discriminatory, and non-political in nature, based in Milpitas or have a local affiliation within the City. d) If the request for donation or fee waiver/reduction is for a community event, the event must be advertised, open to the public and no entrance fee shall be charged for the event. e) Fee waivers/reductions only apply to services provided by the City during its regular course of business. Such fees may include rental fees for the City’s facilities or equipment, building permit fees or fire permit fees. Any City staff overtime costs required due to the event cannot be waived. f) The City Council may grant donation or fee waiver/reduction to each organization once annually, regardless of how many branches or affiliations it may have in the City. g) The fee waiver/reduction amount is further subject to $1,500 maximum annually and the donation amount is subject to $500 maximum annually for each organization. A fee waiver/reduction request cannot be combined with a donation request.
h) To the extent possible, the City’s contribution should be recognized in the event fliers and/or advertising. i) Within 60 days after completion of the event in which a donation was received or a fee waiver/reduction was granted by the City, the organization will provide a written report to the City Clerk to include at minimum: number of participants, copies of all publicity of the event, any benefit to the community, amount of funds raised and an accounting of how the proceeds of the event will be dispersed. j) Failure to abide by the rules and procedures as set forth in this document will result in the organization being denied for funding and/or fee waiver/reduction in the future.
DocuSign Envelope ID: 3E970838-C6A8-4738-AF05-FF513764842A DocuSign Envelope ID: 7C918D0D-3F40-4F68-A164-D9001B5EF7BD 179
Item # C14.
City of Milpitas
Donation or Fee Waiver/Reduction Request Application Form for Non-Profit Organizations
Complete this form and return it to Milpitas City Clerk Please provide a copy of the IRS tax-exempt letter with the application.
Name of Organization: __________________________________________________________ Is there a Milpitas branch or affiliation? ______________________________________________ Mailing Address: ________________________________________________________________ ________________________________________________________________ Contact Person: _____________________________ Telephone No. ______________________ Email Address: ________________________________________________________________ What is your request? Donation Amount Requested _____________________________ OR Fee Requested to be waived (type and $ amount)
$1317 event permit fees and open space rental fee.
Event date(s): _______________________________________________________________________ What is the purpose of the event? _______________________________________________________ __________________________________________________________________________________ _________________________________________________________________________________ What % of the fund raising proceeds will benefit Milpitas community? ___________________________ ___________________________________________________________________________________ How will the City’s contribution (if granted) be recognized in any publicity? ________________________ ___________________________________________________________________________________ Within 60 days after completion of the event for which a donation was received or a fee waiver/ reduction was granted by the City of Milpitas, your organization will provide a written report to the City Clerk to include at minimum: number of participants, copies of all publicity of the event, any benefit to the community, amount of funds raised and an accounting of how the proceeds of the event will be dispersed.
Signature of Officer: ____________________________________ Date: ______________ Print Name & Title: __________________________________________________________________ Sunnyhills Neighborhood Association
1421 Yellowston Ave., Milpitas, CA 95035-6913
Allysson McDonald 408-507-3913
[email protected]
October 29, 2022
Neighborhood concert and Halloween party - to draw our community together and provide a safe alternative for children. neighbors and friends., experiencing live music and a craft opprotunity. Participants will have an increased sense of community and a renewed neighborhood cohesiveness. This is so important after the isolation of the last 2 1/2 years.
Up to 150 people will enjoy family time in the company of How will the Milpitas community benefit from this event? ______________________________________
There is no fundraising associated
with this event - there is no charge to attend and all activities and materials are free.
The city will be acknowledged
as a co-sponsor in our fliers and marketing and from the stage. 09/04/2022
Allysson McDonald, Sunnyhills Neighborhood Association President DocuSign Envelope ID: 3E970838-C6A8-4738-AF05-FF513764842A YES
DocuSign Envelope ID: 7C918D0D-3F40-4F68-A164-D9001B5EF7BD 180
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CITY OF MILPITAS
Revision Date
Original 04/16/2013
6/21/2022
CITY COUNCIL POLICY