REGULAR MEETING OF THE MILPITAS
CITY COUNCIL
September 19, 2023 Milpitas City Council Agenda Page 1
AG E N D A
TUESDAY, SEPTEMBER 19, 2023
CITY COUNCIL CHAMBERS, 455 E CALAVERAS BLVD, MILPITAS, CA 6:00 PM (CLOSED SESSION)
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_XhoC6tf4RlqqqIAbIOkilA After you register a link will be sent to you to join the City Council meeting in order to give your comments. All Zoom meeting attendees who wish to speak must click on the “raise hand” icon when the Mayor calls for public comments. If participating via phone, dial *9 to use the “raise hand” feature, and when called to speak, dial *6 to unmute your phone. Your phone number will be displayed in the live meeting. The Mayor will call speakers by name to address the City Council.
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.
NOTE: If a member of the public wishes to share any presentation materials for C ouncil 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.
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 19, 2023 Milpitas City Council Agenda Page 2
CALL MEETING TO ORDER by Mayor and ROLL CALL by City Clerk (6:00 PM)
ADJOURN TO CLOSED SESSION
(a) CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to Government Code Section 54957.6
Agency designated representative: Nick Raisch, Human Resources Director Bargaining unit: LIUNA, UPEC (Pro-Tech, MEA, MidCon), IAFF, MPOA (b) CONFERENCE WITH LEGAL COUNSEL – Existing Litigation Pending Litigation Pursuant to Government Code Section 54956.9(d)(1) City as Defendant
Lorin Preston v. City of Milpitas, Workers’ Compensation Appeals Board nos. ADJ11353145, ADJ11353106, ADJ15144006, and ADJ15056426.
CLOSED SESSION ANNOUNCEMENT:
Report on action taken in Closed Session, if required per Government Code Section 54957.1, including the vote or abstention of each member present.
PLEDGE OF ALLEGIANCE
INVOCATION (Councilmember Barbadillo)
PUBLIC FORUM (7:05 PM)
Members of the public are invited to speak on any item that does not appear on today’s agenda. Comments will be limited to three minutes or less at the Mayor’s discretion. When called to speak, you are encouraged to state your name for the record.
As an item not listed on the agenda, no action can be taken, however the City Council may instruct the City Manager to place the item on a future meeting agenda.
ANNOUNCEMENT OF CONFLICT OF INTEREST AND CAMPAIGN CONTRIBUTIONS
READING OF THE CITY COUNCIL CODE OF CONDUCT
APPROVAL OF AGENDA
CONSENT CALENDAR (7:15 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 Calendar of Meetings for September and October 2023 (Staff Contact:
Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Receive City Council Calendar of Meetings for September and October 2023.
C2. Approve City Council City Council Meeting Minutes of August 29 and September 5, 2023 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Approve City Council Meeting minutes of August 29 and September 5, 2023.
C3. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Receive the list of anticipated agenda items for the next regular City Council meeting.
2 September 19, 2023 Milpitas City Council Agenda Page 3
C4. Receive and Review the List of Agenda Items Requested by City Councilmembers (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
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. Receive Report and Direct City Attorney to Introduce an Ordinance Regarding Regulation of Sidewalk Vendors in Parks and Public Rights of Way (Staff Contact: Michael Mutalipassi, City Attorney, 408-858-3040)
Recommendation: Receive a report and direct the City Attorney to introduce an ordinance regarding the regulation of street vendors in parks and public rights of way consistent with the Council’s policy and SB 946.
C6. Consider Recommendations from Mayor Montano for Removal from City Commission, and Accept Commissioner Resignation (Contact: Mayor Montano, 408-586-3024) Recommendation: Approve the removal of Steven Huang as non-voting Student Commissioner from the Economic Development and Trade Commission; Accept the resignation of Zeya Mohsin from the Planning Commission; and direct the City Clerk to post the notice of unscheduled vacancies.
C7. Review and Accept the 2023 Legislative Season Action Report, Including an Update on 2023 State and Federal Earmark Requests (Staff Contact: Matt Cano, Deputy City Manager, 408-586- 3012)
Recommendation: Review and accept the 2023 Legislative Season Action Report, including an update on 2023 State and Federal Earmark Requests.
C8. Authorize and Approve the Out-of-State Travel to Washington, D.C., for Mayor Carmen Montano to Attend the Forward Latino National Advocacy Day to be held on October 4 – 5, 2023, for an Estimated Total Not-to-Exceed Amount of $2,000 Budgeted Under the Individual Elected Official Allocation for Conferences/Meetings/Trainings (Staff Contact: Ned Thomas, Acting City Manager, 408-586-3059)
Recommendation: Authorize and approve the out-of-state travel to Washington, D.C., for Mayor Carmen Montano to attend the Forward Latino National Advocacy Day to be held on October 4 – 5, 2023, for an estimated total not-to-exceed amount of $2,000 budgeted under the Individual Elected Official allocation for Conferences/Meetings/Trainings.
C9. Authorize the City Manager to Execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc.; and Approve Budget Appropriation in the Amount of $149,000.00 to the Non- Departmental Operating Budget in the TASP Fund (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012; and Roberto Alonzo, Principal Civil Engineer, 408-586-3316) Recommendation: Authorize the City Manager to execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc.; and Approve budget appropriation in the amount of $149,000.00 to the non- departmental operating budget in the TASP Fund.
C10. Approve and Authorize the City Manager to Execute the Improvement Agreement with Extra Shine Car Wash, Inc., for the Completion of Offsite Public Improvements Located at 554 South Main Street Associated with Site Development Permit (SD18-0010) and Conditional Use Permit 3 September 19, 2023 Milpitas City Council Agenda Page 4
(UA18-0020) (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012; and Roberto Alonzo, Principal Civil Engineer, 408-586-3316)
Recommendation: Approve and authorize the City Manager to execute the Improvement Agreement with Extra Shine Car Wash, Inc., for the completion of offsite public improvements located at 554 South Main Street associated with Site Development Permit (SD18-0010) and Conditional Use Permit (UA18- 0020).
C11. Approve and Authorize the City Manager to Execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and DREF Milpitas, LLC, for the Apple Inc. Site Improvement Project at 260 S. Milpitas Blvd. (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012; and Roberto Alonzo, Principal Civil Engineer, 408-586-3316) Recommendation: Approve and authorize the City Manager to execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and DREF Milpitas, LLC, for the Apple Inc. Site Improvement Project at 260 S. Milpitas Blvd.
C12. Review and Approve the FY 2022-23 Fourth Quarter Financial Status Report, Fund Balances Thereof and Related Budget Amendments and Vehicle Purchase Order to Close-out the FY 2022-23 Budget and Authorize an Additional $100,000 Blanket Purchase Order to the National Auto Fleet Cooperative Agreement for Vehicle Carry-Forward (Staff Contact: Lauren Lai, Finance Director, 408-586-3111)
Recommendation: (1) Review the FY 2022-23 Quarterly Financial Status Report for the quarter ending June 30, 2023 (unaudited); (2) Approve budget amendments; and (3) Authorize an additional $100,000.00 to the National Auto Fleet Cooperative Agreement blanket purchase order for vehicle carry-forward.
C13. Approve and Authorize the City Manager to Execute Amendment No. 1 to the Professional Services Agreement with Liebert Cassidy Whitmore for an Additional Agreement Amount of $200,000.00, Subject to the Annual Appropriation of Funds (Staff Contact: Nick Raisch, Human Resources Director, 408-586-3086)
Recommendation: Approve and authorize the City Manager to execute Amendment No. 1 to the Professional Services Agreement with Liebert Cassidy Whitmore (“LCW”) for an additional agreement amount of $200,000.00, subject to the annual appropriation of funds.
C14. Adopt a Resolution Approving and Authorizing the City Manager to Execute an Agreement Amendment with Insight Public Sector, Inc. (Staff Contact: Nick Raisch, Human Resources Director, 408-586-3086)
Recommendation: Approve and authorize the City Manager to execute an agreement amendment with Insight Public Sector, Inc., with additional funding in the amount of $116,425.49, subject to the annual appropriation of funds, for a total agreement amount of $300,441.49.
C15. Approve an Amendment of the Master Services and Purchasing Agreement with Axon Enterprise, Inc., by Increasing the Total Not-to-Exceed Amount from $913,178.60 to $1,026,887.82 Over the Five-Year Term (Staff Contact: Jared Hernandez, Chief of Police, 408-586- 2406; and Frank Morales, Assistant Chief of Police, 408-586-2521) Recommendation: Approve an amendment of the Master Services and Purchasing Agreement with Axon Enterprise, Inc., by increasing the total not-to-exceed amount from $913,178.60 to $1,026,887.82 over the five-year term.
4 September 19, 2023 Milpitas City Council Agenda Page 5
C16. Receive an Update on the Emergency Repairs to the HVAC System and Equipment at City Hall and at the Public Works/Information Technology/Police Department Buildings and Determine that the Condition Continues to Constitute an Emergency (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602)
Recommendations: (1) Receive an update on the emergency repairs to the HVAC system and equipment at City Hall and at the Public Works/Information Technology/Police Department Buildings; and (2) Determine by a four-fifths vote that the condition continues to constitute an emergency.
C17. Accept the FY 2022-23 Commissioners Annual Report for Six (6) Commissions and Approve Six (6) Commission Work Plans for FY 2023-24 (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408-586-3409)
Recommendation: (1) Accept the FY 2022-23 Commissioners Annual Report; and (2) Approve proposed FY 2023-24 Work Plans for: (a) Arts Commission (including two requested workplan additions detailed in the report); (b) Library and Education Commission; (c) Parks, Recreation and Cultural Resources Commission; (d) Senior Advisory Commission; (e) Veterans Commission; and (f) Youth Advisory Commission.
COMMUNITY DEVELOPMENT (7:20 PM)
18. Approve Proposed Project Locations Pertaining to Project No. 4299 Bicycle Improvement Project to be Funded by Caltrans 2022 Priority Legislative Budget Project (PLPB) Earmarks (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012; and Roberto Alonzo, Acting Transportation and Traffic Manager, 408-586-3316)
Recommendation: Approve proposed project locations pertaining to Project No. 4299 Bicycle Improvement Project to be funded by Caltrans 2022 Priority Legislative Budget Project (PLPB) Earmarks.
COMMUNITY SERVICES AND SUSTAINABLE INFRASTRUCTURE (8:00 PM)
19. Approve Historical Park Marker Project at Various City Parks and Appropriate Funds of $90,000 to CIP No. 3489 (Staff Contact: Tegan McLane, Community Engagement and Inclusion Administrator, 408-586-3212)
Recommendation: Approve Historical Park Marker Project concept at Bob McGuire, Frederick Creighton, Peter B. Gill, Jose Higuera Adobe, Murphy, Sunnyhills Albert Augustine Jr. Memorial, and Delano Manongs parks and appropriate $90,000.00 to Public Art CIP No. 3489.
LEADERSHIP AND SUPPORT SERVICES (8:30 PM)
20. Provide Feedback Regarding Potential Amendments to Title V, Chapter 9, Section 4.05 of the Milpitas Municipal Code Related to Use of Noise-Amplifying Devices at Gill Park (Staff Contact:
Michael Mutalipassi, City Attorney, 408-858-3040)
Recommendation: Provide feedback regarding potential amendments to Title V, Chapter 9, Section
4.05 of the Milpitas Municipal Code Related to use of noise-amplifying devices at Gill Park and direct the City Attorney to prepare a clarifying amendment consistent with the Council’s policy.
ANNOUNCEMENTS AND FUTURE AGENDA ITEMS (9:00 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. 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 whether to move the item forward. If a majority of the City Council agrees to move the item forward, the City Manager shall place the item on a future agenda. 5 September 19, 2023 Milpitas City Council Agenda Page 6
ADJOURNMENT (9:15 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 MILPITAS CITY COUNCIL CALENDAR
September 2023
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
1 2
3 4
CITY HOLIDAY
City Hall Closed
5 6:00 PM-Closed Session
7:00 PM-City Council
6 1:00 PM-Santa Clara VTA Monthly
Briefing - Northeast Group (CM)
(Santa Clara)
5:30 PM-Veterans Commission (CM)
7:00 PM-Community Advisory
Commission (EC)
7 5:30 PM-Santa Clara VTA Board of
Directors (CM)
5:30 PM-Milpitas Chamber of
Commerce Board (GB)
5:30 PM-Cities Association of SCC:
Legislative Action Committee (CM)
7:00 PM-Cities Association of SCC:
Board of Directors (CM)
8 9
10 11
4:30 PM-Economic Development and
Trade Commission (CM)
12 4:00 PM- Milpitas HOPE Task Force
13 7:00 PM-Silicon Valley Clean Energy
Board of Directors (EC) (Cupertino)
14 8:00 AM Special Council Meeting,
Sonesta Event Center
4:00 PM-Santa Clara VTA Policy
Advisory Committee (EC)
4:00 PM-Treatment Plant Advisory
Committee (CM) (San Jose)
5:30 PM-Cities Association’s
Legislative Action Committee (CM)
(Mtn. View)
7:00 PM-Cities Association of Santa
Clara County Board of Directors (CM)
(Mtn. View)
6:00 PM-Youth Advisory Commission
(HL)
15 6:00-7:00 PM- Mexican
Independence Day Flag Raising
(Cesar Chavez Plaza)
16 17
18 4:30 PM- Special Economic
Development and Trade Commission
(CM)
7:00 PM-Science, Technology, and
Innovation Commission (GB)
7:00 PM-Library and Education
Commission (EC) (Milpitas Public
Library)
19 6:00 PM-Closed Session
7:00 PM-City Council
20 6:00 PM-Energy and Environmental
Sustainability Commission (EC)
21 6:30 PM-Bay Area Water Supply
Conserv Agency (CM) (Oak Room -
San Mateo Main Library)
7:00 PM-Public Safety and
Emergency Preparedness Commission
(HL)
22 23
24 25
7:00 PM-Arts Commission (EC)
26 27
7:00 PM-Planning Commission
28 29
6:00 -9:00 PM- Lantern Festival
(Civic Center Plaza)
30 October 2023
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
August 2023
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, Sacramento (CM. EC, NT , MC) 7 Item # C1.
MILPITAS CITY COUNCIL CALENDAR
October 2023
Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 2
7:00 PM-Parks, Recreation & Cultural
Resources Commission (HL)
3 6:00 PM-Closed Session
7:00 PM-City Council
4 1:00 PM-Santa Clara VTA Monthly
Briefing - Northeast Group (CM)
(Santa Clara)
5:30 PM-Veterans Commission (CM)
7:00 PM-Community Advisory
Commission (EC)
5 5:30 PM-Milpitas Chamber of
Commerce Board (GB)
5:30 PM-Santa Clara VTA Board of
Directors (CM)
6 7
8 9
4:30 PM-Economic Development and
Trade Commission (CM)
10 11
4:30 PM-City Council Transportation
Subcommittee (CM/EC)
7:00 PM-Silicon Valley Clean Energy
Board of Directors (EC) (Cupertino)
7:00 PM-Planning Commission
12 4:00 PM-Treatment Plant Advisory
Committee (CM) (San Jose)
4:00 PM-Santa Clara VTA Policy
Advisory Committee (EC)
6:00 PM-Youth Advisory Commission
(HL)
7:00 PM-Cities Assoc of SCC Board of
Directors (CM)
13 14
11:00 AM-Delano
Manongs Park
Opening Ceremony
(McCandless Drive)
15 16
7:00 PM-Science, Technology, and
Innovation Commission (GB)
17 5:00 PM-Closed Session
7:00 PM-City Council
18 6:00 PM-Energy and Environmental
Sustainability Commission (EC)
19 10:30 AM-South Bay Odor
Stakeholders Group (CM)
3:00 PM-VTA Safety, and Transit
Planning & Operations Committee
(CM)
20 21
22 23
24 1:30 PM-Senior Advisory Commission
(CM)
25 12:00 PM-Santa Clara Valley Water
District - Water Commission (CM)
5:30 PM-Cities Assoc. of SCC -
Recycling and Waste Reduction
Commission (CM)
7:00 PM-Planning Commission
26 12:00 PM-Santa Clara County Library
JPA Board of Directors (CM)
(Campbell)
27 28
29 30
31 September 2023
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 2023
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.
SPECIAL MEETING OF THE
MILPITAS CITY COUNCIL
August 29, 2023 Milpitas City Council Minutes Page 1
M I NU TE S
TUESDAY, AUGUST 29, 2023
The City Council of the City of Milpitas convened in a Special Meeting of the Milpitas City Council on August 29, 2023, 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 City Clerk Mayor Montano called the Special City Council meeting to order at 5:30 PM. Roll Call was taken by City Clerk Guzzetta.
PRESENT: Mayor Montano, Vice Mayor Chua, Councilmembers Barbadillo (5:40 PM), Lien, and Phan.
ABSENT: None
PLEDGE OF ALLEGIANCE
Mayor Montano led the Pledge of Allegiance.
PUBLIC FORUM
There were no public speakers.
ANNOUNCEMENT OF CONFLICT OF INTEREST
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.
READING OF THE CITY COUNCIL CODE OF CONDUCT
Mayor Montano read the City Council Code of Conduct.
APPROVAL OF AGENDA
Motion: to approve the August 29, 2023 Special Meeting Agenda
Motion/Second: Vice Mayor Chua / Councilmember Lien
Motion carried by the following:
AYES: Councilmembers Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None.
ABSENT: Councilmember Barbadillo
AGENDA ITEMS
1. Review City Council Procedures and Protocols Handbook and Provide Direction to Staff (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053) Recommendation: Review City Council Procedures and Protocols Handbook, provide input, and direct staff to bring back modifications, if any, for Council consideration. 9 Item # C2.
August 29, 2023 Milpitas City Council Minutes Page 2
Acting City Manager Thomas introduced the item. Assistant City Manager Kantak, joined by City Attorney Mutalipassi, presented the report.
Chapter II - Duties of the City Council
- Section C: Duties of the Vice Mayor - when and how the Vice Mayor is selected.
Mayor Montano proposed changing the Vice Mayor appointment from every two years to at the discretion of the mayor with the option to appoint every year. Vice Mayor Chua asked if the duration can be dictated by the Mayor and would then approved by the City Council. City Attorney Mutalipassi noted that both appointment and removal would be by the recommendation of the Mayor with approval of City Council. Assistant City Manager suggested language for the handbook that the appointment would come before the City Council annually at the start of every calendar year. Both the Mayor and Vice Mayor agreed with the suggested language.
Councilmember Phan reflected on past Vice Mayor appointments and suggested the Council work together to appoint the Vice Mayor for a full two-year term, noting that a single-year term occurred only once before.
Mayor Montano spoke on the working relationship between the Mayor and Vice Mayor and suggested that this change would provide opportunity for other Councilmembers to get the experience of filling the position.
Chapter III - Mayor and Councilmember Conduct
- Section A: Use of electronic devices; use of laptops and cell phones in Closed Session.
Mayor Montano asked to include language in the Code of Conduct adding that use of electronic devices during Closed Session to the prohibited, voicing concern for the sensitivity of closed session issues. Acting City Manager Thomas suggested also adding language to Chapter 4, Section D, Number 4 regarding the use of electronic devices if this is a supported change. Mayor Montano supported this suggestion.
Councilmember Barbadillo suggested that adopting additional rules on top of existing rules and legislation would be overkill. Councilmember Phan spoke in opposition to the recommendation, cautioning against this.
Vice Mayor Chua noted that rules against technology won’t stop leaks from happening.
City Attorney Mutalipassi clarified that ex parte communication at the dais is considered a Brown Act violation and that during a meeting, members of the public must address the entire council at the same time.
Chapter IV - Meetings
- Section F 2: Presiding Officer - Seating
In response to questions from Vice Mayor Chua, City Attorney Mutalipassi noted that the Council was not currently following the handbook policy for seating assignments. Vice Mayor Chua recommended staff return with less ambiguous language and define that seniority was determined by continuous service as an elected official. City Attorney Mutalipassi suggested revising the handbook language so that the Mayor and Vice Mayor sit at the center of the dais and remaining councilmembers select their seats in order of seniority. Vice Mayor Chua agreed with the suggestion. Councilmember Lien noted she asked to address this issue in the past. She suggested the Council should be consistent in following the handbook language, including seating order. - Section G 1-5 Voting, Rules of Procedure; Roberts Rules of Order Councilmember Barbadillo voiced concern with the order of voting, noting his name was always called first, when he hadn’t had the time to consider the matter. Vice Mayor Chua questioned if there a way to alternate which Councilmember would be called on first to vote. City Attorney Mutalipassi noted that members may pass on the vote and then be returned to afterwards. Council asked staff to return with options for consideration. 10 Item # C2.
August 29, 2023 Milpitas City Council Minutes Page 3
Chapter VI – City Council Actions
- Proclamations and Commendations
Vice Mayor Chua asked the method of recourse if the Mayor chooses to not issue a commendation. City Attorney Mutalipassi noted there is not an appeal process, but that the Councilmember could ask for a resolution issuing a commendation. Vice Mayor Chua asked to return with language to that effect. City Attorney Mutalipassi suggested a commendation using the community mark as an option for councilmembers. Mayor Montano asked staff to return with those options to review.
City Council Salaries
Title 1, Chapter 13, Milpitas Municipal Code and SB 329 (2023) City Attorney Mutalipassi provided information on SB 329 allowing the City Council to adopt an ordinance to increase salaries by up to 5% each year that no increase was given. He offered to prepare an ordinance to adopt the salary increase. Vice Mayor Chua asked to bring back those options for the City Council to consider.
Councilmember Phan proposed a salary setting commission and asked if the Council should consider becoming a Charter City. Vice Mayor Chua suggested Councilmember Phan bring the topic up during Announcements and Future Agenda Items. Councilmember Lien also asked for clarification and possible flexibility on coverage for lodging with a certain mileage from the City. She noted that it is more convenient to stay overnight at some destinations within driving distance of Milpitas that driving to and from home.
Training and Travel Budget
Councilmember Lien suggested setting a dollar threshold prior to going to City Council for approval. Assistant City Manager Kantak offered to return with options for Council consideration. Mayor Montano also asked for a list of items for which the training and travel budget may be used.
Policies and Procedures for Censure
Mayor Montano questioned the definition of admonishment as called for in the adopted Censure policy. She asked staff to return with definitions of the sanctions detailed for a councilmember and asked to receive copies of censure policies from MUSD and other cities.
Interns
Mayor Montano voiced concerns with limitations on school status and age. Vice Mayor Chua asked to include graduates for consideration. Councilmember Phan suggested including a time frame after graduating to be considered for an intern position and responded that the purpose of an internship was to develop skills and gain experience. He followed up, noting that internships available to anyone regardless of school status and age are jobs, not internships.
Keys to the City
Mayor Montano and Vice Mayor Chua asked for guidelines to consider for granting keys to the City. Vice Mayor Chua suggested it should only be for a significant or measurable contribution to the community and also suggested limits on the number that can be issued. Councilmember Phan suggested delegating the process to the City Council. Vice Mayor Chua referenced the City Facility Naming Policy as a reference for developing guidelines to issuing keys to the City.
Photographs of Past Councilmembers
Mayor Montano noted that the picture of a former Councilmember, Debbie Giordano, that served for 12 years, was missing. She suggested there be a minimum number of years or terms served before a photo can be 11 Item # C2.
August 29, 2023 Milpitas City Council Minutes Page 4
displayed with past councilmembers, and that it applies to all Mayors, Vice Mayors, and Councilmembers. Vice Mayor Chua suggested establishing a minimum number of years to qualify for having a photo on the wall.
Councilmember Lien remarked that once a Councilmember has served, they have the right to have their picture on the wall. Mayor Montano agreed with Councilmember Lien and suggested a waiting period of five years after serving before a picture is hung on the wall of the Council Chamber. The Mayor also suggested a waiting period of seven years before posting the photo. There was consensus in support of all members being recognized with a photo. The Council asked staff to return with recommendations.
Chapter IV - Meetings
Assistant City Manager Kantak noted that staff recommended deleting the reference to Council meeting start time as it is governed by the Milpitas Municipal Code. She also recommended that meeting minutes be kept per best practices.
Chapter V – Meeting Agendas and Minutes
Vice Mayor Chua asked for clarification on p. 21 of the handbook, Item 2a, as to who can request an item to be added to the agenda, both for Closed and Open Session agendas, and asked to make the language very clear.
She also asked to include a notation in the handbook that the City Manager can also call a special meeting.
Mayor Montano questioned if the City Council desired to hire a consultant and conduct a retreat to continue revising the handbook.
ANNOUNCEMENTS
There were no announcements.
ADJOURNMENT
Mayor Montano adjourned the meeting at 7:50 PM.
Draft meeting minutes submitted by City Clerk, Suzanne Guzzetta
12 Item # C2.
REGULAR MEETING OF THE MILPITAS
CITY COUNCIL
September 5, 2023 Milpitas City Council Minutes Page 1
M I NU TE S
TUESDAY, SEPTEMBER 5, 2023
The City Council of the City of Milpitas convened on September 5, 2023, 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 City Clerk Mayor Montano called the Regular City Council meeting to order 6:01 PM. Roll Call was taken by City Clerk Guzzetta.
PRESENT: Mayor Montano, Vice Mayor Chua, Councilmembers Barbadillo and Lien.
ABSENT: Councilmember Phan (6:03 PM).
City Attorney Mutalipassi announced the closed session items. The City Council adjourned to Closed Session at 6:03 PM.
ADJOURN TO CLOSED SESSION
(a) CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to Government Code Section 54957.6
Agency designated representative: Nick Raisch, Human Resources Director Bargaining unit: LIUNA, UPEC (Pro-Tech, MEA, MidCon), IAFF, MPOA The City Council reconvened in open session at 7:00 PM
CLOSED SESSION ANNOUNCEMENT:
City Attorney Mutalipassi reported that there was no action taken on Closed Session items.
PLEDGE OF ALLEGIANCE
Mayor Montano led the Pledge of Allegiance.
INVOCATION
Councilmember Barbadillo presented the invocation.
PRESENTATIONS
Mayor Montano and the City Council presented a proclamation in recognition of "National Preparedness Month" to Fire Chief Jason Schoonover and in recognition of "National Suicide Prevention Week" to Lorinne Patterson from the HOPE Suicide Prevention Task Force. She also presented certificates of commendation to Milpitas High School students participating in the Digital Map Project.
PUBLIC FORUM
There were no public speakers.
13 Item # C2.
September 5, 2023 Milpitas City Council Minutes Page 2
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 Montano read the Code of Conduct.
APPROVAL OF AGENDA
Motion: to approve the September 5, 2023 Regular Meeting Agenda.
Motion/Second: Vice Mayor Chua / Councilmember Barbadillo Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: None
CONSENT CALENDAR
Motion: to approve the Consent Calendar
Motion/Second: Vice Mayor Chua / Mayor Montano
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: None
There were no public speakers.
C1. Receive City Council Calendar of Meetings for September 2023 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Received City Council Calendar of Meetings for September 2023.
C2. Approve City Council City Council Meeting Minutes of August 15, 2023 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Approved City Council Regular Meeting minutes of August 15, 2023.
C3. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting (Staff Contact: Suzanne Guzzetta, 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 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Reviewed the list of items that have been requested by City Councilmembers and provided direction to staff as necessary.
14 Item # C2.
September 5, 2023 Milpitas City Council Minutes Page 3
C5. Consider Recommendations from Mayor Montano for Removal from and Appointments to City Commissions, and Accept Commissioner Resignation (Contact: Mayor Montano, 408-586-3024) Received Mayor Montano's recommendations and approved removals from the Science, Technology and Innovation Commission; Approved and confirmed recommendations for appointments to City Commissions; Accepted the resignation of Charles Lingle from the Energy and Environmental Sustainability Commission; and directed the City Clerk to post the notice of unscheduled vacancies.
Community Advisory Commission:
1. Appointed Suraj Viswanathan to a full voting seat with an unexpired term ending January 2026
Economic Development and Trade Commission:
1. Confirmed appointment of Victor San Vicente to the Chamber of Commerce representative seat with a term ending April 2024
Public Safety and Emergency Preparedness Commission:
1. Confirmed appointment of Kelly Yip Chuan to the MUSD representative seat with a term ending June 2026
Science, Technology and Innovation Commission:
1. Removed Pulak Mehta from a full voting seat with an unexpired term ending January 2026
2. Removed Nasir Lalani from a full voting seat with an unexpired term ending January 2024
C6. Authorize and Approve Travel to Sacramento, CA, for Councilmember Hon Lien to Attend the League of California Cities Annual Conference and Expo to be Held on September 20-22, 2023, for an Estimated Total Not-to-Exceed Amount of $2,250 Budgeted under the Individual Elected Official Allocation for Conferences/Meetings/Trainings (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053)
Authorized and approved travel to Sacramento, CA, for Councilmember Hon Lien to attend the Annual Conference of the League of California Cities scheduled on September 20 – 22, 2023, for an estimated total not-to-exceed amount of $2,250 budgeted under the Individual Elected Official allocation for Conferences / Meetings / Trainings.
C7. Approve and Authorize the City Manager to Execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and Sango Court, L.P., for the Affordable Housing Project at 355 Sango Court (Staff Contact: Roberto Alonzo, Principal Civil Engineer, 408-586-3316)
Approved and authorized the City Manager to execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and Sango Court, L.P., for the Affordable Housing Project at 355 Sango Ct.
C8. Approve and Authorize the City Manager to Execute the Public Trail Easement and Maintenance Agreement for a Residential Development at 355 Sango Court by Sango Court, L.P. (Staff Contact: Roberto Alonzo, Principal Civil Engineer, 408-586-3316) Approved and authorized the City Manager to execute the Public Trail Easement and Maintenance Agreement for a residential development at 355 Sango Court by Sango Court, L.P.
15 Item # C2.
September 5, 2023 Milpitas City Council Minutes Page 4
C9. Approve and Authorize the City Manager to Execute the Encroachment and Maintenance Agreement with Sango Court, L.P., for the Installation and Maintenance of Private Landscape Improvements, within City Right-of-way, for the Sango Court Affordable Housing Project Located at 355 Sango Court (Staff Contact: Roberto Alonzo, Principal Civil Engineer, 408-586- 3316)
Approved and authorized the City Manager to execute the Encroachment and Maintenance Agreement with Sango Court, L.P., for the installation and maintenance of private landscape improvements, within City Right-of-way, for the Sango Court Affordable Housing Project located at 355 Sango Court.
C10. Receive the April – June 2023 Report for Unhoused Services (Staff Contact: Alex Andrade, Economic Development Director, 408-586-3046)
Received the April – June 2023 report for unhoused services.
C11. Accept and Approve a Budget Appropriation of $200,000 and Authorize the Acting City Manager or Designee to execute an agreement with Housekeys for Administration of City’s Below Market Rate Homeownership Program (Staff Contact: Alex Andrade, Economic Development Director, 408-586-3046; and Robert Musallam, Housing and Neighborhood Services Administrator, 408- 586- 3275)
Accepted and approved a budget appropriation of $200,000.00 from the Affordable Housing and Community Benefit Fund and authorized the Acting City Manager or Designee to execute an agreement with Housekeys for Administration of City’s Below Market Rate Homeownership Program.
C12. Adopt a Resolution Approving a Site Development Permit to Develop a New In-Ground Swimming Pool and Legalize the Unpermitted Site Improvements at an Existing Single-Family Residence at 640 Evans Road (Staff Contact: Jay Lee, Interim Planning Director, 408-586-3077) Considered the exemption in accordance with CEQA and adopted Resolution No. 9270 approving Site Development Permit No. SD20-0015, subject to the attached Conditions of Approval, to allow the development of a new in-ground swimming pool and legalize the unpermitted site improvements at an existing single-family residence on a 2.69 acre site at 640 Evans Road.
C13. Receive an Update on the Emergency Repairs to the HVAC System and Equipment at City Hall and at the Public Works/Information Technology/Police Department Buildings and Determine that the Condition Continues to Constitute an Emergency (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602)
(1) Received an update on the emergency repairs to the HVAC system and equipment at City Hall and at the Public Works/Information Technology/Police Department Buildings; and (2) Determined by a four-fifths vote that the condition continues to constitute an emergency.
C14. Adopt a Resolution Approving the City Manager, Acting City Manager or Designee to apply for an up to $3,500,000 Community Resilience Center (CRC) Grant from the State of California Strategic Growth Council and Authorizing the City Manager, Acting City Manager or Designee to Accept a CRC Grant and Execute all Related Documents as the Authorized Agent on the Grant Agreements (Staff Contact: Matt Cano, Deputy City Manager, 408-890-8065) Adopted Resolution No. 9271 approving the City Manager, Acting City Manager or Designee to apply for an up to $3,500,000 Community Resilience Center Grant from the State of California Strategic Growth Council and authorized the City Manager, Acting City Manager or Designee to accept a CRC grant and execute all related documents as the Authorized Agent on the Grant Agreements. 16 Item # C2.
September 5, 2023 Milpitas City Council Minutes Page 5
PUBLIC HEARINGS
15. Conduct a Public Hearing and Approve the Draft FY 2022-2023 Community Development Block Grant (CDBG)’s Consolidated Annual Performance and Evaluation Report (CAPER) (Staff Contact: Alex Andrade, Economic Development Director, 408-586-3046; and Robert Musallam, Housing Division Manager, 408-586-3275)
Acting City Manager Thomas introduced the report. Economic Development Director Andrade and Housing Division Manager Musallam presented the report.
Housing Division Manager Musallam responded to questions from the City Council.
Mayor Montano opened the public hearing.
There were no public speakers.
Mayor Montano closed the public hearing.
After discussion, motion: to approve the draft FY 2022-2023 Community Development Block Grant (CDBG) Consolidated Annual Performance and Evaluation Report (CAPER); and authorize the Acting City Manager, or designee, to make any necessary changes and to submit the approved draft FY 2022- 2023 CAPER to the U.S. Department of Housing and Urban Development (HUD) to comply with CDBG requirements.
Motion/Second: Vice Mayor Chua / Councilmember Lien
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: None
COMMUNITY DEVELOPMENT
16. Adopt a Resolution Certifying Election Results and Adding Tract No. 10592 to Community Facilities District 2008-1 (Annexation No. 25); Approve Final Tract Map No. 10592 for a Residential Project at 2001 Tarob Court; and Approve and Authorize the City Manager to Execute the Subdivision Improvement Agreement. (Staff Contact: Roberto Alonzo, Principal Engineer, 408-586-3316)
Principal Engineer Alonzo presented the report.
There were no public speakers.
Mayor Montano stated that this is the time for the City Clerk to canvass the ballots and to report the results of the election to the City Council.
City Clerk Guzzetta reported that one ballot was received and opened the sealed ballot. She stated that the proposition was unanimously approved.
After discussion, motion: to receive election results from the City Clerk and adopt Resolution No. 9272 certifying the election results and adding Tract No. 10592 to Community Facilities District 2008-1 (Annexation No. 25); Approve Final Tract Map No. 10592, including all offers of dedications as stated and depicted on the final map upon completion and acceptance of improvements; and Approve and authorize the City Manager to execute the Subdivision Improvement Agreement between the City of Milpitas and KB Home South Bay, Inc
17 Item # C2.
September 5, 2023 Milpitas City Council Minutes Page 6
Motion/Second: Councilmember Lien / Vice Mayor Chua
Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: None
17. Accept an Allocation of $1,600,000 in State Funding for the Milpitas SMART Program, Approve a Budget Appropriation into CIP Project No. 3493, and Provide Direction to Staff on Proposed Program Modifications (Staff Contact: Ashwini Kantak, Assistant City Manager, 408-586-3053; and Jay Lee, Interim Planning Director, 408-586-3077)
Acting City Manager Thomas introduced the item. Acting Planning Director Lee presented the report, joined by Project Manager Sam Moffitt and Assistant City Manager Kantak.
There were the following public speakers:
1. Voltaire Montemayor
Vice Mayor Chua questioned the four-month reduction based on the Option 1 recommendation and asked if, with the grant funding, the program would continue on as planned.
Councilmember Barbadillo suggested the prudence of beginning to explore additional funding sources to continue the program beyond 2025 and supported continuing the Milpitas SMART program.
Councilmember Lien questioned if expanding hours was related to outreach efforts.
Mayor Montano supported the service hours expansion to extend weekday service from 7am-7pm to 6am-9pm and add Saturday service, and to begin by slowly converting to a hybrid fleet one vehicle at a time.
Vice Mayor Chua asked staff to look into other sources to support the program and to consider other options for efficiency such as fixed route service.
Assistant City Manager Kantak queried the Council for support the conversion a hybrid vehicle fleet.
There was general consensus from the Council to consider hybrid vehicles.
Acting City Manager Thomas reiterated the City Council direction and asked for clarification on fares and promotions. Assistant City Manager noted that staff recommended four months of free fares over the year. Both Mayor Montano and Vice Mayor Chua supported the recommendation. There was consensus from the City Council to support continuing to charge current fares while offering more promotions, including the recommended four months of free fares over the course of a year.
After discussion, motion: to Accept $1,600,000 in State funding through the Budget Act of 2023 (AB 102) for the Milpitas SMART program and approve a budget appropriation of $1,600,000 in State funding into CIP Project No. 3493 Milpitas SMART.
Motion/Second: Councilmember Lien / Councilmember Barbadillo Motion carried by the following:
AYES: Councilmembers Barbadillo, Lien, Phan, Vice Mayor Chua, and Mayor Montano NOES: None
ABSENT: None
18 Item # C2.
September 5, 2023 Milpitas City Council Minutes Page 7
ANNOUNCEMENTS AND FUTURE AGENDA ITEMS
Mayor Montano asked for the following future agenda items:
1. Council to consider an amendment to the Affordable Housing Ordinance to increase the below-market- rate (BMR) requirement from 15% to 20% for all new residential projects and explore flexibility in meeting the new requirement. There was unanimous consensus from the City Council to add it to the prioritization list.
2. Consider an art project for the City Hall lobby make recommendations to the City Council. Acting City Manager Thomas noted that to use public art funds, it would need to be considered by the Arts Commission. Consensus from the City Council was that before funds are released to receive input from the Arts Commission.
Councilmember Phan requested the Council consider exploring taking steps towards becoming a Charter City.
There was consensus from the City Council to add the item to the prioritization list (Noes: Mayor Montano).
Vice Mayor Chua made the following requests:
1. City Attorney look at the policy for commissioners to release funds without the approval of the City Council. If any commission is granting a waiver, it must go through the City Council. There was unanimous support from the City Council to move the item forward.
2. Police Chief to have staff complete analysis if, working with the County, it would be beneficial to have a location where residents can pickup Narcan. There was unanimous support from the City Council to move the item forward.
ADJOURNMENT
Mayor Montano adjourned the meeting at 8:55 PM.
Draft meeting minutes submitted by City Clerk, Suzanne Guzzetta
19 Item # C2.
TENTATIVE CITY COUNCIL AGENDA ITEM LIST
as of 9/14/2023
October 3, 2023 – Regular Meeting
CLOSED SESSION
Labor Relations
INVOCATION (Councilmember Phan)
PRESENTATION
Fire Prevention Week (Proclamation)
Indigenous Peoples’ Day (Proclamation)
Hindu American Awareness and Appreciation Month (Proclamation) Clean Air Day (Proclamation)
CONSENT CALENDAR
1. Receive City Council calendar for October 2023 (City Clerk)
2. Approve City Council Meeting minutes of September 19, 2023 (City Clerk)
3. Preview list of items for October 17, 2023 (City Clerk)
4. Councilmember Request List (City Clerk)
5. HDL Agreement (Finance)
6. Report on Emergency HVAC Repairs (Public Works)
7. Disposition of Fleet and Equipment (Public Works)
COMMUNITY DEVELOPMENT
8. Proposed Amendment to Shopping Cart Ordinance and Fee Increase for Retrieved Cart Delivery to Participating Stores (Building)
9. Workforce Housing (Housing)
10. Comprehensive Zoning Ordinance Update (Planning)
COMMUNITY SERVICES
11. Storm Fee Discussion (Public Works)
20 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 Have the Police Chief direct staff to complete an
analysis in partnership with the County to determine
if it would be beneficial to have a location where
residents can pickup Narcan Chua 9/5/2023
This item will be discussed at the next
Council prioritization meeting.
2 City Attorney to look at the policy for commissioners to release funds without the approval of the City
Council. If any commission is granting a waiver, it
must go through the City Council Chua 9/5/2023
This item will be discussed at the next
Council prioritization meeting.
3 Explore taking steps towards becoming a Charter
City Phan 9/5/2023
This item will be discussed at the next
Council prioritization meeting.
4 Consider an art project for the City Hall lobby,
receive input from Arts Commission Montano 9/5/2023
This item will be discussed at the next
Council prioritization meeting.
5 Consider an amendment to the Affordable Housing
Ordinance to increase the below-market-rate (BMR)
requirement from 15% to 20% for all new residential
projects and explore flexibility in meeting the new
requirement Montano 9/5/2023
This item will be discussed at the next
Council prioritization meeting.
6 Provide the City Council with an informational
memorandum on lessons learned from the recent
fire on Maui and how the City can update its
emergency plan Chua 8/15/2023
This task is completed. The Fire Chief sent
an informational memo to the Mayor and City
Council on September 5, 2023.
7 Look into what would be needed to convert the
unused Teen Center space at the Sports Center to
an indoor pickleball court. Chua 8/8/2023
This item will be preliminarily reviewed by the
City Manager's Office in Fall 2023. Any
potential next steps will be determined
following this preliminary review.
8 Consider a Safe Parking Program to find
businesses and churches that would allow the
unhoused to sleep in their cars and vans Montano 6/20/2023 This item will be discussed at the next
Council prioritization meeting.
Request
No. Topic Submitted by:
Date
Requested
STATUS and/or DATE scheduled on City
Council meeting agenda:
9 Human Resources Director to conduct a job fair
specific to the job openings at City Hall Chua 5/2/2023 June 2023 update: Staff is evaluating
synergies with existing Economic
Development activities and endeavors to
which recruiting efforts can be incorporated
and creates space for multiple events
throughout the year increasing overall
exposure to local talent
10 Satellite Consulate Office Montano 2/28/2023
Approved to move forward at the June 2023
Quarterly City Council Workplan Items
Prioritization Session on 6/20/23.
11 Have the City look into the possibility of a Citywide Senior Discount Barbadillo 2/7/2023
Approved to move forward at the June 2023
Quarterly City Council Workplan Items
Prioritization Session on 6/20/23.
OPEN ITEMS
ACTIVE ITEMS
NOTE: Deferred and Completed Items are not listed21
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:
ACTIVE ITEMS
12 City Manager to look into defining either a
standalone teen center or updating information to
indicate the Senior Center also functions as a Teen
Center Chua 9/20/2022
June 2023 update: A Teen Center Survey
has been released and is currently gathering
responses. It is anticipated that data on the
use of the center and/or its programs relative
to it's proximity to home and/or school, and
the type of programming desired will provide
the input needed for the resolution to this
request. Discussed at February 2023
Quarterly City Council Workplan Items
Prioritization Discussion; Approved to move
forward during Prioritization Discussion on
2/7/23.
13 Discuss converting vacant lot that was a basketball
court into a community garden at Vasona and
Adobe Montano 8/16/2022
Staff conducted a survey of residents within
an 800 foot radius from Adobe Ave., asking
for feedback on potential recreational
improvements to the area. Notification was
sent via postcard to individual homes,
NextDoor, Facebook, and Instagram. The
survey was out for 3 weeks and 43 responses
were received. Of those received, 16
identified themselves as living in the Adobe
Ave/Vasona St. Neighborhood. The majority
of residents currently use Adobe Ave to walk
to school (Curtner Elementary) and as a
pedestrian trail for fitness. Survey takers
responded most favorably to turning the area
into a parklet with some benches and
greenery, followed by interest in a community
garden. Residents indicated some concern
over new uses of the area creating a noise
and loitering issue in the neighborhood.
Staff will present consolidate responses to
the Mayor and City Council to receive further
direction during the upcoming CIP budget
process.
14 City Manager look into implementing a workshop for
small businesses on the bidding process for
projects in the city Chua 8/9/2022
June 2023 update: Staff was scheduled to
provide a report to the Economic
Development and Trade Commission on
June 12, 2023 however that meeting with
postoned due to lack of quorum. Staff will
present to the Commission in August 2023.
Further analysis on options and alternatives
to connect more local and local small City of
Milpitas businesses to our procurement
processes will continue through 2023.
Discussed at February 2023 Quarterly City
Council Workplan Items Prioritization
Discussion; Approved to move forward during
Prioritization Discussion on 2/7/23
15 Quarterly or Monthly crime statistics on Homekey
Project Chua 6/7/2022 Quarterly reports to City Council are ongoing.
NOTE: Deferred and Completed Items are not listed22
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:
ACTIVE ITEMS
16 Memorial Plaque in honor of youth skateboarder
that passed away Montano 6/7/2022
This request was approved as part of the
FY23-24 Budget. Staff will begin working with
the family in Fall 2023.
17 Funding to hire a consultant for the Sunnyhills
Historical Designation on a state level Tran 6/7/2022
Based on staff research, the best way to try
for a Historical District Designation is at the
National Level. This can be wrapped into the
approved CIP for the Historical Resources
Plan update or through grant consultant
California Consulting. Request will be
included with the Historic Resources Master
Plan project approved as part of the 2023-
2027 Capital Improvement Program.
18 Explore the policy for locking mechanisms on
shopping carts for large commercial businesses Tran 4/19/2022 June 2023 update: No change in status.
Prior updates: MMC V-13-140 Mandatory
Plan to Prevent Cart Removal includes
requirement for physical measures to prevent
cart removal however V-13-120 provides an
exemption for cart owner that agrees to enter
into a contract with a City-designated retrieval
service. Staff suggestion to Council is to
review this exemption and repeal it which
would require all cart owners to have physical
measures to prevent cart removal. Business
outreach was conducted to grocery store
operators in Q2 of 2022 to inquire about
shopping cart removal and theft. Grocery
stores contacted were Ocean Supermarket,
Seafood City Supermarket, Chung Chou City,
Milpitas Grocery Outlet, and 99 Ranch
Market.
19 Explore an ordinance or policy to reduce thefts and
increase security in the commercial retail parking
areas Chua 4/5/2022
June 2023 update: Security measures can
be mandated for new or renovating
development projects but cannot be
mandated for existing businesses. The Police
Department has taken action to partner with
existing businesses, including McCarthy
Ranch and the shopping center at Barber
Lane with regard to educaton and deterance,
including placement of signage and cameras.
20 Request for Crossing Guards at McCandless and
Montague Expressway and review wages for
Crossing Guards Montano 4/5/2022
Info Memos were sent to the City Council on
6/13/2022 and 1/27/2023. At the January 31st
budget study session, Council voted to move
to a contract model; Staff is in the middle of a
citywide traffic study, which includes school
aged pedestrian counts around schools in the
City including the McCandless and Montague
Expressway intersection.
21 Evaluate reopening the childcare center with a non-
profit organization running the center Montano 2/1/2022 No additional funds required to complete the
internal review. Internal review can be done
by late 2023. Approved during Spring
Quarterly City Council Workplan Items
Prioritization Discussion on 5/03/2022.
NOTE: Deferred and Completed Items are not listed23
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:
ACTIVE ITEMS
22 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.
23 Staff to look into mural Art on Great Mall Parkway
on the VTA owned Light rail pillars Montano 11/16/2021
Staff has identified a potential location oin
Great Mall Parkway and is solidifying the
workplan for installation.
24 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
June 2023 update: The City Attorney's Office
has prepared a confidential memorandum
regarding potential legal issues and
implementation of a food delivery cap. As
stated in that memorandum, should the
Council wish to move forward with a cap, the
next step will be to authorize the retention of
a consultant to determine if a factual basis
exists to support the need for a further food
delivery cap.
25 Have a picture of Albert Vogel Sr. put up in the
Senior Center Montano 10/19/2021
June 2023 update: The approved CC request
included to add Maria Lemery and Albert
Vogel to the Mural at the Senior Center. Staff
has spoken to the artist and confirmed that
additional images would not fit with the
existing piece. However, due to the location
of the current mural, additional mural panels
featuring additional people could be added to
the senior center entry way. Staff received
interest from Mayor Montano to add Joanne
Sousa to this request.
26 Include a bust of Maria Lemire on the Mural in front of the Senior Center Montano 8/17/2021
June 2023 update: The approved CC request
included to add Maria Lemery and Albert
Vogel to the Mural at the Senior Center. Staff
has spoken to the artist and confirmed that
additional images would not fit with the
existing piece. However, due to the location
of the current mural, additional mural panels
featuring additional people could be added to
the senior center entry way. Staff received
interest from Mayor Montano to add Joanne
Sousa to this request.
27 Staff to create a plan on how to increase the
number of local businesses doing business with the
City Chua 4/6/2021
Staff is tracking this local business
participation item as part of Council Priority
Item 3 in Group 1 on this list; 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.
28 Staff to provide information on a landmark policy for the City of Milpitas Tran 3/16/2021
June 2023 update: Request is being
included with the Historic Resources Master
Plan project approved as part of the 2023-
2027 Capital Improvement Program.
NOTE: Deferred and Completed Items are not listed24
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:
ACTIVE ITEMS
29 Amendment to the existing ordinance for third-party
food delivery vendor services to prohibit regulatory
response fees Phan 2/16/2021
June 2023 update: The City Attorney's Office
has prepared a confidential memorandum
regarding potential legal issues and
implementation of a food delivery cap. As
stated in that memorandum, should the
Council wish to move forward with a cap, the
next step will be to authorize the retention of
a consultant to determine if a factual basis
exists to support the need for a further food
delivery cap.
30 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 listed25
Item # C4.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Receive Report and Direct City Attorney to Introduce an Ordinance regarding Regulation of Sidewalk Vendors in Parks and Public Rights of Way (Staff Contact: Michael Mutalipassi, City Attorney, 408-858-3040) Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/19/2023
Recommendation: Receive a report and direct the City Attorney to introduce an ordinance regarding the regulation of street vendors in parks and public rights of way consistent with the Council’s policy and SB 946.
BACKGROUND:
Among the prohibitions set forth in MMC V-9-4.00 et seq. is a prohibition against conducting any business or concession within a park. Section V-9-4.01 prohibits, without a permit, “[t]he conduct of any trade, calling, occupation, business or profession (including, but not limited to, the business of peddling, hawking or vending any goods, wares or merchandise of any kind). (The Council declares it to be its intent that permits hereunder shall be granted only in exceptional circumstances of benefit to the community at large.)” MMC section V-9-
4.01 was adopted by the City Council in 1974. However, in 2018, former Governor Brown signed SB 946 into law. SB 946 places substantial restrictions on local control of sidewalk vendors, including prohibiting local authorities from banning sidewalk vendors from selling food or merchandise in a park owned or operated by the local authority. SB 946 preempts MMC section V-9-4.01 such that it must be amended. While SB 946 restricts the local control, it does allow local agencies to have some regulatory control over sidewalk vendors.
ANALYSIS:
SB 946 amended the California Government Code to include Chapter 6.2, sections 51036 to 51039, regulating sidewalk vendors. Section 51038 allows local authorities to adopt a program to regulate sidewalk vendors so long as the program complies with the requirements of the section. Section 51038 prohibits local authorities from requiring sidewalk vendors from operating within specific parts of the City or specific parts of the public right of way, except when those restrictions are directly related to objective health, safety, or welfare concerns.
It prevents a local authority from prohibiting sidewalk vendors from selling food or merchandise in a park owned or operated by the local authority unless the prohibition is directly related to objective health, safety, or welfare concerns; necessary to ensure the public’s use and enjoyment of natural resources and recreational opportunities; or necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park. The local authority cannot require any sidewalk vendor to obtain the consent or approval of any nongovernmental entity or individual before he or she can sell food or merchandise, including the consent of brick and mortar businesses. A local authority cannot restrict the neighborhoods sidewalk vendors may operate in, except the local authority may ban stationary sidewalk vendors in areas that are zoned exclusively residential (but cannot ban roaming sidewalk vendors from those areas.) A local authority cannot restrict the overall number of sidewalk vendors within its jurisdiction unless the restriction is directly related to objective health, safety, or welfare concerns.
Local authorities may adopt requirements regulating the time, place, and manner of sidewalk vending if the requirements are directly related to objective health, safety, or welfare concerns. Limitations on hours of operation may not be unduly restrictive, and in nonresidential areas, any limitations on hours of operations for sidewalk vendors cannot be more restrictive than the hours of operations for any other businesses on the same street. Local authorities can require sidewalk vendors to maintain sanitary conditions; make requirements that ensure ADA compliance; obtain from the City a valid business license; require sidewalk vendors possess a valid California seller’s permit; require additional licenses from other state or local agencies 26 Item # C5.
to the extent required by law; require compliance with other generally applicable laws; and require a sidewalk vendor to submit certain information regarding his or her operations.
Staff recommends that the Council direct the City Attorney to prepare a SB 946 compliant ordinance creating a program to regulate sidewalk vendors and to amend or delete MMC section V-9-4.01 in conformity with that program. Recommended regulations include:
Requiring sidewalk vendors to obtain a City of Milpitas business license; Allowing a waiver of the business license fee if the vendor is not associated with a corporation or franchise;
Requiring sidewalk vendors to comply with the ADA;
Requiring sidewalk vendors to maintain sanitary conditions; Requiring sidewalk vendors to obtain valid applicable licenses from the State and County to the extent otherwise required by law;
Banning stationary sidewalk vendors from strictly residential neighborhoods; and Banning any sidewalk vendor from operating in a strictly residential neighborhood before 7 a.m. or after 7 p.m.
POLICY ALTERNATIVE(S):
Alternative 1: Direct the City Attorney to prepare an ordinance creating a SB 946 compliant program for the regulation of street vendors in parks and public rights of way and to amend or delete MMC section V-9-4.01 in conformity with that program.
Pros: The City will be able to regulate street vendors in compliance with state law.
Cons: None.
Alternative 2: Do not take action to regulate street vendors in parks and public rights of way.
Pros: Staff will not expend time preparing an ordinance.
Cons: The City will not be able to regulate street vendors in parks or public rights of way. MMC section V-9-
4.01 will not be enforceable as it will be preempted by state law.
FISCAL IMPACT:
There is no fiscal impact to directing the City Attorney to introduce an ordinance. There may be some fiscal impacts associated with licensing street vendors. Those fiscal impacts will be evaluated upon introduction of an ordinance.
California Environmental Quality Act (CEQA):
The action has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and is not a project pursuant to Pub.
Resources Code, § 21065 and Cal. Code Regs., tit. 14, § 15378.
RECOMMENDATION:
Receive a report and direct the City Attorney to introduce an ordinance regarding the regulation of street vendors in parks and public rights of way consistent with the Council’s policy and SB 946.
Attachment(s):
1. SB 946
27 Item # C5.
Senate Bill No. 946
CHAPTER 459
An act to add Chapter 6.2 (commencing with Section 51036) to Part 1 of Division 1 of Title 5 of the Government Code, relating to sidewalk vendors. [Approved by Governor September 17, 2018. Filed with
Secretary of State September 17, 2018.]
legislative counsel’s digest
SB 946, Lara. Sidewalk vendors.
Existing law authorizes a local authority, by ordinance or resolution, to adopt requirements for the public safety regulating any type of vending and the time, place, and manner of vending from a vehicle upon a street.
This bill w ould prohibit a local authority , as defined, from re gulating sidewalk vendors, except in accordance with the provisions of the bill. The bill would provide that a local authority is not required to adopt a ne w program to regulate sidewalk vendors if the local authority has established an existing program that substantially complies with the pro visions of the bill. The bill would apply these provisions to a chartered or general law city, county, or city and county.
The bill w ould require a local authority that elects to adopt a side walk vending program to, among other things, not require a side walk vendor to operate within specific parts of the public right-of-w ay, except when that restriction is directly related to objective health, safety, or welfare concerns, and not restrict side walk v endors to operate only in a designated neighborhood or area, except as specified. The bill would authorize a local authority to, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of side walk vending, as specified, if the requirements are directly related to objective health, safety, or welfare concerns. The bill would also authorize a local authority to prohibit sidewalk vendors in areas located within the immediate vicinity of a permitted certified farmers’ market and a permitted swap meet, as specified, and to restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit issued by the local authority, as specified. A violation would be punishable only by an administrative fine, as specified, pursuant to an ability-to-pay determination, and proceeds would be deposited in the treasury of the local authority.
The bill would require the dismissal of any criminal prosecutions under any local ordinance or resolution regulating or prohibiting sidewalk vendors that have not reached final judgment. The bill would also authorize a person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a con viction of a misdemeanor or infraction for side walk
93 STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
28 Item # C5.
vending, as specified, to petition for dismissal of the sentence, fine, or conviction.
Existing constitutional pro visions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The people of the State of California do enact as follows:
SECTION 1. (a) The Legislature finds and declares all of the following:
(1) Sidewalk vending provides important entrepreneurship and economic development opportunities to low-income and immigrant communities. (2) Sidewalk vending increases access to desired goods, such as culturally significant food and merchandise.
(3) Sidewalk vending contributes to a safe and dynamic public space. (4) The safety and welf are of the general public is promoted by encouraging local authorities to support and properly re gulate side walk vending.
(5) The safety and welf are of the general public is promoted by prohibiting criminal penalties for violations of sidewalk vending ordinances and regulations.
(6) This act applies to an y city, county, or city and county , including a charter city. The criminalization of small b usiness entrepreneurs, and the challenges that those entrepreneurs face as a result of a criminal record, are matters of statewide concern. Further, unnecessary barriers have been erected blocking aspiring entrepreneurs from accessing the formal economy, harming California’s economy in the process, and disrupting the re gulation of business, which is a matter of statewide concern. Moreover, California has an interest in the regulation of traffic, a matter of statewide concern, whether in ensuring the appropriate flo w of traffic or in ensuring the safety of pedestrians on the road or the sidewalk.
(b) It is the intent of the Le gislature to promote entrepreneurship and support immigrant and low-income communities.
SEC. 2. Chapter 6.2 (commencing with Section 51036) is added to Part 1 of Division 1 of Title 5 of the Government Code, to read:
Chapter 6.2. Sidewalk Vendors
51036. For purposes of this chapter, the following definitions apply:
(a) “Sidewalk vendor” means a person who sells food or merchandise from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized con veyance, or from one’ s person, upon a public sidewalk or other pedestrian path.
(b) “Roaming sidewalk vendor” means a side walk vendor who mo ves from place to place and stops only to complete a transaction. 93 — 2 —Ch. 459
29 Item # C5.
(c) “Stationary sidewalk vendor” means a side walk vendor who vends from a fixed location.
(d) “Local authority” means a chartered or general la w city, county, or city and county.
51037. (a) A local authority shall not regulate sidewalk vendors except in accordance with Sections 51038 and 51039.
(b) Nothing in this chapter shall be construed to affect the applicability of Part 7 (commencing with Section 113700) of Division 104 of the Health and Safety Code to a sidewalk vendor who sells food.
(c) Nothing in this chapter shall be construed to require a local authority to adopt a new program to regulate sidewalk vendors if the local authority has established an e xisting program that substantially complies with the requirements in this chapter.
51038. (a) A local authority may adopt a program to regulate sidewalk vendors in compliance with this section.
(b) A local authority’s sidewalk vending program shall comply with all of the following standards:
(1) A local authority shall not require a sidewalk vendor to operate within specific parts of the public right-of-w ay, except when that restriction is directly related to objective health, safety, or welfare concerns. (2) (A) A local authority shall not prohibit a sidewalk vendor from selling food or merchandise in a park o wned or operated by the local authority , except the local authority may prohibit stationary side walk vendors from vending in the park only if the operator of the park has signed an agreement for concessions that exclusively permits the sale of food or merchandise by the concessionaire.
(B) Notwithstanding subparagraph (A), a local authority may adopt additional requirements regulating the time, place, and manner of sidewalk vending in a park o wned or operated by the local authority if the requirements are any of the following:
(i) Directly related to objective health, safety, or welfare concerns. (ii) Necessary to ensure the public’ s use and enjo yment of natural resources and recreational opportunities.
(iii) Necessary to prevent an undue concentration of commercial activity that unreasonably interferes with the scenic and natural character of the park.
(3) A local authority shall not require a side walk vendor to first obtain the consent or approval of any nongovernmental entity or individual before he or she can sell food or merchandise.
(4) (A) A local authority shall not restrict side walk vendors to operate only in a designated neighborhood or area, e xcept when that restriction is directly related to objective health, safety, or welfare concerns. (B) Notwithstanding subparagraph (A), a local authority may prohibit stationary sidewalk vendors in areas that are zoned exclusively residential, but shall not prohibit roaming sidewalk vendors.
(5) A local authority shall not restrict the o verall number of side walk vendors permitted to operate within the jurisdiction of the local authority , 93 Ch. 459— 3 —
30 Item # C5.
unless the restriction is directly related to objective health, safety, or welfare concerns.
(c) A local authority may, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of side walk vending if the requirements are directly related to objective health, safety, or welfare concerns, including, but not limited to, any of the following:
(1) Limitations on hours of operation that are not unduly restricti ve. In nonresidential areas, any limitations on the hours of operation for sidewalk vending shall not be more restricti ve than an y limitations on hours of operation imposed on other businesses or uses on the same street. (2) Requirements to maintain sanitary conditions.
(3) Requirements necessary to ensure compliance with the federal Americans with Disabilities Act of 1990 (Public La w 101-336) and other disability access standards.
(4) Requiring the sidewalk vendor to obtain from the local authority a permit for sidewalk vending or a valid business license, provided that the local authority issuing the permit or b usiness license accepts a California driver’s license or identification number, an individual taxpayer identification number, or a municipal identification number in lieu of a social security number if the local authority otherwise requires a social security number for the issuance of a permit or business license, and that the number collected shall not be available to the public for inspection, is confidential, and shall not be disclosed e xcept as required to administer the permit or licensure program or comply with a state law or state or federal court order. (5) Requiring the side walk v endor to possess a v alid California Department of Tax and Fee Administration seller’s permit. (6) Requiring additional licenses from other state or local agencies to the extent required by law.
(7) Requiring compliance with other generally applicable laws. (8) Requiring a side walk vendor to submit information on his or her operations, including, but not limited to, any of the following:
(A) The name and current mailing address of the sidewalk vendor. (B) A description of the merchandise offered for sale or exchange. (C) A certification by the vendor that to his or her knowledge and belief, the information contained on the form is true.
(D) The California seller’ s permit number (California Department of Tax and Fee Administration sales tax number), if an y, of the side walk vendor.
(E) If the side walk v endor is an agent of an indi vidual, compan y, partnership, or corporation, the name and business address of the principal. (d) Notwithstanding subdivision (b), a local authority may do both of the following:
(1) Prohibit side walk v endors in areas located within the immediate vicinity of a permitted certified farmers’ market or a permitted swap meet during the limited operating hours of that certified farmers’ market or swap meet. A “certified farmers’ market” means a location operated in accordance with Chapter 10.5 (commencing with Section 47000) of Division 17 of the 93 — 4 —Ch. 459
31 Item # C5.
Food and Agricultural Code and an y regulations adopted pursuant to that chapter. A “swap meet” means a location operated in accordance with Article 6 (commencing with Section 21660) of Chapter 9 of Di vision 8 of the Business and Professions Code, and an y regulations adopted pursuant to that article.
(2) Restrict or prohibit sidewalk vendors within the immediate vicinity of an area designated for a temporary special permit issued by the local authority, provided that any notice, business interruption mitigation, or other rights provided to affected businesses or property o wners under the local authority’s temporary special permit are also pro vided to an y side walk vendors specifically permitted to operate in the area, if applicable. F or purposes of this paragraph, a temporary special permit is a permit issued by the local authority for the temporary use of, or encroachment on, the sidewalk or other public area, including, but not limited to, an encroachment permit, special e vent permit, or temporary e vent permit, for purposes including, b ut not limited to, filming, parades, or outdoor concerts. A prohibition of side walk vendors pursuant to this paragraph shall only be effective for the limited duration of the temporary special permit. (e) For purposes of this section, percei ved community animus or economic competition does not constitute an objecti ve health, safety , or welfare concern.
51039. (a) (1) A violation of a local authority’ s side walk v ending program that complies with Section 51038 is punishable only by the following:
(A) An administrative fine not exceeding one hundred dollars ($100) for a first violation.
(B) An administrative fine not exceeding two hundred dollars ($200) for a second violation within one year of the first violation. (C) An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one year of the first violation. (2) A local authority may rescind a permit issued to a side walk vendor for the term of that permit upon the fourth violation or subsequent violations. (3) (A) If a local authority requires a side walk v endor to obtain a sidewalk vending permit from the local authority, vending without a sidewalk vending permit may be punishable by the follo wing in lieu of the administrative fines set forth in paragraph (1):
(i) An administrative fine not exceeding two hundred fifty dollars ($250) for a first violation.
(ii) An administrative fine not exceeding five hundred dollars ($500) for a second violation within one year of the first violation. (iii) An administrative fine not exceeding one thousand dollars ($1,000) for each additional violation within one year of the first violation. (B) Upon proof of a v alid permit issued by the local authority , the administrative fines set forth in this paragraph shall be reduced to the administrative fines set forth in paragraph (1), respectively. (b) The proceeds of an administrati ve fine assessed pursuant to subdivision (a) shall be deposited in the treasury of the local authority. 93 Ch. 459— 5 —
32 Item # C5.
(c) Failure to pay an administrative fine pursuant to subdivision (a) shall not be punishable as an infraction or misdemeanor . Additional fines, fees, assessments, or any other financial conditions be yond those authorized in subdivision (a) shall not be assessed.
(d) (1) A violation of a local authority’s sidewalk vending program that complies with Section 51038, or a violation of an y rules or re gulations adopted prior to January 1, 2019, that regulate or prohibit sidewalk vendors in the jurisdiction of a local authority, shall not be punishable as an infraction or misdemeanor , and the person alle ged to ha ve violated an y of those provisions shall not be subject to arrest except when permitted under law. (2) Notwithstanding an y other la w, paragraph (1) shall apply to all pending criminal prosecutions under an y local ordinance or resolution regulating or prohibiting side walk v endors. Any of those criminal prosecutions that have not reached final judgment shall be dismissed. (e) A local authority that has not adopted rules or regulations by ordinance or resolution that comply with Section 51037 shall not cite, fine, or prosecute a sidewalk vendor for a violation of any rule or regulation that is inconsistent with the standards described in subdivision (b) Section 51038. (f) (1) When assessing an administrati ve fine pursuant to subdi vision (a), the adjudicator shall take into consideration the person’s ability to pay the fine. The local authority shall pro vide the person with notice of his or her right to request an ability-to-pay determination and shall make available instructions or other materials for requesting an ability-to-pay determination.
The person may request an ability-to-pay determination at adjudication or while the judgment remains unpaid, including when a case is delinquent or has been referred to a comprehensive collection program. (2) If the person meets the criteria described in subdivision (a) or (b) of Section 68632, the local authority shall accept, in full satisfaction, 20 percent of the administrative fine imposed pursuant to subdivision (a). (3) The local authority may allo w the person to complete community service in lieu of paying the total administrati ve fine, may w aive the administrative fine, or may offer an alternative disposition. (g) (1) A person who is currently serving, or who completed, a sentence, or who is subject to a fine, for a conviction of a misdemeanor or infraction for sidewalk vending, whether by trial or by open or ne gotiated plea, who would not ha ve been guilty of that of fense under the act that added this section had that act been in ef fect at the time of the of fense, may petition for dismissal of the sentence, fine, or con viction before the trial court that entered the judgment of conviction in his or her case.
(2) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to dismiss the sentence or fine, if applicable, and dismiss and seal the con viction, because the sentence, fine, and conviction are legally invalid.
93 — 6 —Ch. 459
33 Item # C5.
(3) Unless requested by the petitioner, no hearing is necessary to grant or deny a petition filed under paragraph (1).
(4) If the court that originally sentenced or imposed a fine on the petitioner is not available, the presiding judge shall designate another judge to rule on the petition.
(5) Nothing in this subdivision is intended to diminish or abrog ate any rights or remedies otherwise available to the petitioner. (6) Nothing in this subdi vision or related pro visions is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this chapter.
SEC. 3. The Legislature finds and declares that Section 2 of this act, which adds Section 51038 to the Go vernment Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional pro vision, the Legislature makes the follo wing findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
The Legislature finds and declares that in order to protect the privacy of a sidewalk vendor with re gard to his or her California dri ver’s license or identification number , indi vidual taxpayer identification number , or municipal identification number, when that number is collected in lieu of a social security number for purposes of the issuance of a permit or business license, it is necessary that the side walk vendor’s number be confidential, except as provided in this act.
O
93 Ch. 459— 7 —
34 Item # C5.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Consider Recommendations from Mayor Montano for Removal from City Commission, and Accept Commissioner Resignation (Contact: Mayor Montano, 408-586-3024)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/19/2023
Recommendation: Approve the removal of Steven Huang as non-voting Student Commissioner from the Economic Development and Trade Commission; Accept the resignation of Zeya Mohsin from the Planning Commission; and direct the City Clerk to post the notice of unscheduled vacancies.
Background:
The City of Milpitas has 13 Commissions (including the Measure F Oversight Committee), with members appointed by the Mayor and confirmed by the City Council. The Commissions advise the Milpitas elected officials on a variety of community interest and policy areas. Commissioner appointments and removals are governed by various sections of the California Government Code, Milpitas Municipal Code, and the adopted Milpitas Commissioner Handbook and By-Laws. Most of the 13 City Commissions include a non-voting Student Commissioner seat. Students Commissioners must be in grades 9 through 12 and live in the City of Milpitas.
In accordance with the City of Milpitas Commission By-Laws, any member of a Commission who is no longer available to serve must submit a resignation in writing by sending a written communication to the Mayor and the City Clerk, per adopted City Council Resolution No. 7702. The written resignation must then be accepted and confirmed by City Council via action on the consent calendar at a regularly scheduled City Council meeting.
By state law, a Notice of an Unscheduled Vacancy must be posted by the City Clerk to advertise the vacant Commission seats. Pursuant to California Government Code §54974, the notice of unscheduled vacancy shall be posted not earlier than 20 days before the vacancy occurs. Final appointment to the board, commission, or committee for the Unscheduled Vacancy shall not be made by the legislative body for at least ten working days after the posting of the notice in the Clerk’s office.
Analysis:
Steven Huang, the non-voting student member on the Economic Development and Trade Commission graduated from high school and no longer qualifies to sit on the commission as a non-voting student member.
Commissioner Zeya Mohsin submitted her resignation from the Planning Commission effective October 1, 2023.
The notice of these unscheduled vacancies will be posted Wednesday, September 20, 2023.
Fiscal Impact:
There is no fiscal impact associated with this item.
Recommendation:
Approve the removal of Steven Huang as non-voting Student Commissioner from the Economic Development and Trade Commission; Accept the resignation of Zeya Mohsin from the Planning Commission; and direct the City Clerk to post the notice of unscheduled vacancies.
Attachments:
1. Planning Commissioner Zeya Mohsin resignation
35 Item # C6.
36 Item # C6.
2 ‐‐
Thanks,
ZMohsin
37 Item # C6.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Review and Accept the 2023 Legislative Season Action Report, Including an Update on 2023 State and Federal Earmark Requests (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/19/2023
Recommendation: Review and accept the 2023 Legislative Season Action Report, including an update on 2023 State and Federal Earmark Requests.
BACKGROUND:
On May 18, 2021, the City Council approved the Legislative Advocacy Policy. The Policy includes Legislative Guiding Principles and establishes clear guidelines for advancing City goals and positions through legislative review and advocacy at the regional, state, and federal levels of government and provides guidance for City officials who serve on regional, state, and national boards, committees, and commissions when they are asked to review public policy matters and issues.
On September 6, 2022, the Mayor and City Council directed staff to issue a request for proposals for Federal and State legislative advocacy services. In January 2023, the City contracted with Kiley & Associates for these services, the primary areas of focus for this contract include:
Tracking pending legislation and issues that could be impactful or important to the City; Advocating or opposing legislation that significantly impacts the City; and Engaging with State and Federal agencies to expedite reimbursement for expenditures, clarify administrative rulings, advocate for funding requests, etc.
Kiley & Associates specializes in advocacy at the Federal level, and they have partnered with the firm of Gonsalves & Sons to provide the City with specific advocacy and expertise at the State level.
Legislation and issues of interest are brought to the City’s attention through several means: League of California Cities, National League of Cities, Cities Association of Santa Clara County, City Councilmembers, legislators, city staff, community members, and professional or governmental organizations. Per the Council Policy, all legislation or issues of interest shall be referred to the City Manager’s Office.
On June 6, 2023, Agenda Item C5 (https://milpitasca.portal.civicclerk.com/event/5/files) of the City Council meeting included a status of the one time funding or “earmark” requests that the City made to State and Federal representatives in calendar year 2023. An update on the status of these requests is included in the analysis section of this agenda report.
ANALYSIS:
Per the City Policy, staff is providing the 2023 legislative season action updates to the Council. This report covers legislative advocacy including preparation and issuance of letters of support and opposition of bills under consideration by the California legislature as well as the successful advocacy of earmarked Federal and State funding.
Legislative Advocacy – Letters Issued to the State Legislature
38 Item # C7.
Based on the Legislative Advocacy Police and Legislative Guiding Principles, staff recommended a support or oppose position on 14 bills, for the Mayor’s signature. Consistent with the policy, Mayor Carmen Montano signed the letters supporting or opposing these bills. The letters are included as Attachment 2 of this report.
The table below provides a summary of the 14 measures the City opposed or supported including the number and author of the measure, description of the measure, the City’s position and the primary City Legislative Policy guiding principle guiding the support or opposition to the measure.
Item
No.
Measure No. &
Author
Measure Title Measure Description City
Position
Primary
Legislative
Guiding
Principle
1 AB 33 (Bains) Fentanyl Addiction
and Overdose
Prevention Task
Force.
This law in California sets up different
categories or ‘Schedules’ for controlled
substances, including the drug fentanyl, with
the greatest restrictions and penalties for
Schedule I drugs. It is illegal to possess or
purchase for sale specified controlled
substances such as fentanyl and punishment
can include 2-4 years in prison. This bill sets
up a new task force that will look into the
impact of fentanyl abuse in the state and will
collect data, evaluate solutions and increase
public awareness.
Support 2. Support
Efforts to
Keep Milpitas
Safe
2 AB 367
(Maienschein)
Controlled
substances:
enhancements
This bill states that if a person sells, furnishes,
administers, or gives away fentanyl or a
related substance and that person suffers a
significant or substantial physical injury as a
result, then the person who sold, furnished,
administered, or gave away the substance can
get an added sentence of 3-5 years in state
prison.
Support 2. Support
Efforts to
Keep Milpitas
Safe
3 SB 363 (Eggman) Conservatorship
Reform and
Behavioral Health Bed
Database
This bill would establish a real-time dashboard
of available beds in psychiatric and substance
abuse facilities.
Support 7. Support
and Promote
Inclusive
Communities
4 SB 43 (Eggman) Conservatorship
Reform and
Behavioral Health Bed
Database
This bill would make it easier to provide
treatment to those unable to care for
themselves.
Support 7. Support
and Promote
Inclusive
Communities
5 AB 474
(Rodriguez)
State Threat
Assessment Center:
Transnational Criminal
Organizations
This bill will improve community safety in the
City of Milpitas for our first responders and
residents. Our police officers and firefighters
are encountering fentanyl at an alarming rate.
Each encounter places them at risk of an
unintentional overdose.
Support 2. Support
Efforts to
Keep Milpitas
Safe
6 AB 955 (Petrie-
Norris)
Controlled
Substances
This bill will improve community safety in the
City of Milpitas for our first responders and
residents. Our police officers and firefighters
are encountering fentanyl at an alarming rate.
Each encounter places them at risk of an
unintentional overdose.
Support 2. Support
Efforts to
Keep Milpitas
Safe
7 AB 1175 (Quirk-
Silva, et.al)
Outdoor Advertising This bill would allow a local jurisdiction to request from Caltrans a five-year extension of
an original provision of the Outdoor Advertising
Act that treated off-site advertising displays
located in a former redevelopment area as an
on-premises sign. Support of this bill was
coordinated with the City partners at the Great
Mall.
Support 5. Protect and
Increase
Local
Funding, No
Unfunded
Mandates
8 SB 719 (Becker) Law enforcement
agencies: radio
communications.
This bill would require law enforcement
agencies in California such as municipal police
departments, county sheriff’s departments,
local law enforcement agencies, and university
and college police departments to provide real
Oppose 2. Support
Efforts to
Keep Milpitas
Safe
39 Item # C7.
time access to their radio communications by
2024. It would also require those agencies to
make sure any criminal justice information
obtained through CLETS (the California Law
Enforcement Telecommunications System) is
not accessible to the public. If expenses
incurred by local agencies are determined to
be mandated by the state, reimbursement will
be provided.
9 AB 742 (Jackson) Law enforcement:
police canines.
Existing law allows police officers to use a
certain amount of force when making an arrest
in order to prevent an escape or in response to
resistance. The law also prevents the use of
physical objects, like chemical agents and
projectiles, to disperse any assembly, protest
or demonstration, as long as it meets certain
standards. This bill would make it illegal for law
enforcement to use an unleashed police dog
when apprehending someone, and prevent
them from using any police canine for crowd
control, or training police dogs in a way that
does not follow this bill.
Oppose 2. Support
Efforts to
Keep Milpitas
Safe
10 AB 1532 (Haney)* Office conversion
projects.
This bill would allow developers of certain
housing projects to convert office buildings into
residential dwellings without needing additional
permits or approvals. Additionally, it would
exempt these conversions from impact fees,
and would require local governments to review
and approve these projects as a "use by right."
Furthermore, it would establish a program to
award funding to these "office conversion
projects," and when approved, the state would
reimburse local governments for the costs
incurred.
Oppose 1. Protect
Local Control
11 AB 1504
(McCarty)
Planning and Zoning:
Electric Vehicle
Charging
Infrastructure: Public
Right-Of-Way
This bill would expand administrative review
requirements to charging stations installed in
the public right-of-way and charging stations
installed with a battery storage system.
Oppose 1. Protect
Local Control
12 SB 423 (Wiener) Land use: streamlined
housing approvals:
multifamily housing
developments.
This bill would change the law for approving
development projects. It would require local
governments to approve certain types of
development projects, such as multifamily
housing developments, that meet certain
objective planning standards. The standards
would change to include deleting the standard
that prohibits the project in a coastal zone,
alternative definition for “affordable housing
costs,” and certification that wage and labor
standards will be met. It would also allow the
Department of General Services to act in the
place of a locality or local government at their
discretion. The bill would prohibit public
oversight of the development and require
reimbursement to local agencies and school
districts if otherwise mandated.
Oppose 1. Protect
Local Control
13 AB 1572
(Friedman)
Potable Water:
nonfunctional turf
Would make legislative findings and
declarations concerning water use, including
that the use of potable water to irrigate
nonfunctional turf is wasteful and incompatible
with state policy relating to climate change,
water conservation, and reduced reliance on
the Sacramento-San Joaquin Delta
ecosystem. The bill would direct all appropriate
state agencies to encourage and support the
elimination of irrigation of nonfunctional turf
with potable water.
Neutral if
amended
8. Promote
Livability and
Environmental
Stewardship
40 Item # C7.
14 AB 84 (Ward) Property tax: welfare
exemption: affordable
housing.
This bill would create a partial exemption from
property taxes for rental housing and related
facilities owned or operated by certain types of
non-profit entities if certain conditions are met,
such as, financing from qualified 501(c)(3)
bonds, deed restrictions or regulatory
agreements with lower income rental rates. It
would also provide that this partial exemption
is available for property subject to legal
restriction providing units for lower income
households, and would require an affidavit
accompanying the claim for exemption. This
bill would also require the county assessor to
conditionally grant the exemption and would
require reimbursement for certain costs
mandated by the state. It would take effect
immediately as a tax levy.
Oppose 1. Protect
Local Control
* A letter opposing AB 1532 was not sent forward as the bill is no longer moving forward. However, staff has left the bill on the above list to track the City position for future reference if this bill were to proceed again in a future legislative session
State and Federal Earmark Funding requests
As indicated in the June 6, 2023 City Council agenda report, the City received $5.5 million in earmark funding in 2022 as follows:
1. Carbon Neutral Homes Incentive Program ($3 million from State of California);
2. Homelessness Prevention and Unhoused Services ($1.5 million from State of California);
3. Bike Lanes Facility Enhancement Project ($1 million from State of California)
Staff submitted additional funding requests in 2023 for various projects and received a total of $2 million ($1.5 million for Milpitas SMART and $500,000 for Main Street). The table below provides a description of each project or program along with a current status of the funding requests.
Project or
Program
Description Status
Main Street
Lighting project
A key shovel ready priority project in this area for the City to continue spurring economic development is the Main Street lighting project. This project consists of design and construction of street lights and signal improvements along Main Street from Carlo to Great Mall Parkway and is estimated at $7.8 million. The project will be built in three phases. Design is completed for the first phase (Carlo to Corning) and the construction is estimated at $2.4 million. The City requested support for the construction funding ($2.4 million) for this first phase of the project.
Representative Ro Khanna
submitted a request for Federal
funding for this project and
Assemblymember Alex Lee
submitted a State request for
funding for this project.
$500,000 was allocated to this
project from the Federal
Government. No funding was
allocated by the State
Government. Given the fact that
the $500,000 is substantially less
than the $2.4 million requested,
staff will coordinate with the
Federal Government, and the
Mayor and City Council, on how
to best utilize this funding to
enhance Main Street.
Milpitas SMART In alignment with the City of Milpitas’s adopted Climate Action Plan, this program is an app-based local transit service that provides convenient, affordable and on-demand connection for residents, visitors and businesses in Milpitas.
$1.6 million was provided by the
State Government for this
project.
Milpitas Urban
Search and
Rescue
In 2000, the Milpitas Fire Department acquired a heavy rescue apparatus (USAR-86). The primary mission of a heavy rescue apparatus is to provide the Fire Department with a multifunction apparatus that has the ability to carry and rapidly deploy, the thousands of pounds of heavy rescue equipment required to manage the myriad of Special Operations and Technical Rescue Incidents that an urban “all hazards” fire department can be expected to respond to. The current equipment is at the end of its useful Senator Alex Padilla submitted a
Federal funding request for this
project. This funding was not
received.
41 Item # C7.
life. The City has allocated nearly $400,000 for this equipment. The City requested support for all or a portion of the remaining funding ($1.2 million) necessary to purchase the new equipment.
Milpitas Public
Safety Microgrid
In alignment with the City of Milpitas’ adopted Climate Action Plan, the Public Safety Microgrid Project installs a combined solar-microgrid-battery system at the facility that houses the City’s Police Station, 911 Call Center, Public Works and Information Technology Departments. This will ensure that these facilities can function during power shutdowns/outages and reduce Green House Gas emissions on a daily basis. The City requested support for all or a portion of the $3.1 million necessary for implementation of this project.
Both Senators Dianne Feinstein
and Alex Padilla submitted a
Federal funding request for this
project. This funding was not
received.
Cardoza Park
Softball Fields
The Milpitas North Valley Police Athletic League Softball League, formerly known as Milpitas North Valley Bobby Sox, has offered inclusive softball activities for 400 Milpitas youth annually for 24 years focusing on giving young girls in our community the confidence and leadership skills to succeed in life, while also being active and healthy using the fundamentals of athletics. For most of the program’s life, it was held at the Russell Middle School Bobby Sox fields, owned by the Milpitas Unified School District (MUSD). In 2021, MUSD started to renovate the Russell Middle School fields for multi-use play with a track, soccer field, and small softball field. To support the continuation of softball league activities, the City temporarily transitioned the PAL Softball Program to Dixon Landing Park Sports fields.
Aside from the youth players and their families, thousands of interleague players and spectators stretching from San Lorenzo to the Central Valley, visit Milpitas for team play, scrimmages, and tournaments.
No funding requests were
submitted, or received, by State
or Federal representatives for
this project
FISCAL IMPACT:
Any fiscal impact will be identified when, and if, the implementation of a particular legislation requires Council approval or funding. This would typically be as part of the City’s annual budget approval process.
California Environmental Quality Act (CEQA):
The action is an organizational or administrative activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.
RECOMMENDATION:
Review and Accept the 2023 Legislative Season Action Report, Including an Update on 2023 State and Federal Earmark Requests.
Attachment(s):
Attachment 1 – Legislative Advocacy Policy and Legislative Guiding Principles Attachment 2 – Legislative Advocacy Letters sent in 2023 42 Item # C7.
CITY OF MILPITAS
Revision Date
Original 5/18/2021
CITY COUNCIL POLICY
1. PURPOSE
1.1. To establish clear guidelines for advancing City goals and positions through legislative review and advocacy at the regional, state, and federal levels of government and to provide guidance for City officials who serve on regional, state, and national boards, committees, and commissions when they are asked to review public policy matters and issues.
2. POLICY
2.1. This policy outlines the guiding principles and process to enable a comprehensive review of legislation affecting the City of Milpitas, seek Council’s position on proposed legislation, and to make the City’s position known.
2.2. All legislative reviews shall be made on the basis of the effect on the City and the community as a whole, and taking into account existing City positions, policies, or goals.
2.3. The City shall support the legislative positions of the Cities Association of Santa Clara County, League of California Cities, and the National League of Cities, on priority bills that benefit the City of Milpitas.
2.4. The City shall adopt Legislative Guiding Principles (LGP) based on approved Council Priority Areas, the adopted General Plan, the Economic Development Strategy, and other Council approved master plans and strategic plans.
2.5. On an annual basis, the LGP shall be updated as needed, and shall be approved by the City Council at the beginning of the calendar year.
3. DEFINITIONS
3.1. The following definitions are provided solely as a guide to assist in the application of this policy and may be subject to change.
1.1.1. Department – Includes all City departments and offices
1.1.2. Economic Development Strategy – A five year strategy document adopted by the City Council in May 2020
1.1.3. General Plan – A comprehensive planning document adopted by the Council in March 2021
Policy No:
1-2
LEGISLATIVE ADVOCACY POLICY Effective Date:
5/18/2021
Revision No:
N/A
Policy Administrator:
City Manager
Next Review Due:
Click or tap to enter a
date.
Related Policies and
Procedures:
Click or tap here to enter
text.
Approved by:
City Council, 5/18/2021, Item # C9: 5-0
vote
Date Approved:
5/18/2021
43 Item # C7.
CITY OF MILPITAS
Revision Date
Original 5/18/2021
LEGISLATIVE ADVOCACY POLICY / POLICY # 1-2
1.1.4. Legislative Advocacy – A position of support or opposition to proposed legislation
1.1.5. Legislative Guiding Principles – Principles adopted on an annual basis by the City Council to guide the City’s position on proposed legislation
1.1.6. Milpitas Municipal Code – Codification of the General Ordinances of Milpitas
4. PROCEDURE
4.1. Legislation and issues of interest are brought to the City’s attention through several means:
League of California Cities, National League of Cities, Cities Association of Santa Clara County, Councilmembers, legislators, City staff, community members, and professional or governmental organizations. All legislation or issues of interest shall be referred to the City Manager’s Office.
4.2. City Manager’s Office (CMO) shall review the proposed legislation and, if warranted, request assistance from the City Attorney and/or from one or more departments.
4.3. The process for evaluation and action related to proposed legislation of particular interest to the City shall be as follows:
1.1.1. CMO/Department shall evaluate the proposed bill for its impact on Milpitas, recommend a position and potential action, and draft a position statement or support/opposition letter.
1.1.2. If Council has previously adopted a policy directly relevant to the proposed legislation or if the proposed legislation is generally consistent with the City’s Legislative Guiding Principles, the Mayor or City Manager may sign a letter supporting or opposing legislation on behalf of the City as further detailed below.
1.1.3. If there is no Council policy relative to the legislation, the issue is politically controversial, or there is significant community interest in the issue, the proposed legislation, including a recommendation to support, remain neutral, or oppose the legislation, will be brought to Council for consideration.
1.1.4. Letters and other communications expressing the City’s position on legislation will bear the signature of the Mayor in accordance with the Milpitas Municipal Code. If the legislation will mainly impact the City’s operations, the communication may be signed by the City Manager or designee.
1.1.5. In order to keep the City Council informed of all City communications on legislation, copies of the letter or summary of actions will be distributed to the City Council as information items.
4.4. Quarterly legislative updates on items of interest will be provided to the City Council.
44 Item # C7.
CITY OF MILPITAS
Revision Date
Original 5/18/2021
LEGISLATIVE ADVOCACY POLICY / POLICY # 1-2
1. Protect Local Control
The City values its ability and authority to exercise local control, enable excellent public services and protect and enhance the quality of life for Milpitas residents and businesses. The City supports efforts to streamline regulations that benefit the administration of the City and opposes efforts that erode the City's authority to control its own affairs.
2. Support Efforts to Keep Milpitas Safe
The City supports legislation and policies that enable local officials to access resources to provide quality police, fire, emergency management, emergency medical services, youth violence prevention initiatives, and to engage the community in its own safety.
3. Support Efforts to Create Affordable Housing
The City supports legislation and policies that enable local officials to access resources to support the creation of affordable housing and to strive for a balance of jobs and housing in each city across the region.
4. Support City’s Vision for Strategic, Sustainable, and Smart Growth The City strives to foster economic development, including planning and implementation of regional transportation and traffic congestion relief projects. The City supports legislation and policies that support local initiatives to develop or redevelop the community to strengthen the local and regional economy, to accommodate local workers' housing needs in places close to transit and jobs, and to continually improve services provided to the community.
5. Protect and Increase Local Funding, No Unfunded Mandates The City opposes legislation, policies, or budgets that have negative impacts on City services, revenues or costs. The City supports efforts that protect and enhance local governments’ revenues, maximize access to State and Federal funding sources, and increase local funding flexibility including legislation that allows the City to recover costs related to state and federal mandates.
6. Pursue or Retain Federal and State Funding for Key Efforts In order to support the City's efforts and key policies to provide quality services, affordable housing, transportation, and public infrastructure for its residents and businesses, and to fund the needed strategic support services, it is necessary that the federal and state governments act as partners with local government and provide appropriate levels of funding for these City and regional efforts.
7. Support and Promote Inclusive Communities
The City values diversity and recognizes all residents, including immigrants, as valuable contributors to our community’s success. Support legislation that helps our residents be safe, healthy, and able to thrive, while providing opportunities to actively engage in civic, cultural, and economic life.
CITY OF MILPITAS – LEGISLATIVE GUIDING PRINCIPLES
45 Item # C7.
CITY OF MILPITAS
Revision Date
Original 5/18/2021
LEGISLATIVE ADVOCACY POLICY / POLICY # 1-2
8. Promote Livability and Environmental Stewardship
The City values a sustainable quality of life in an urban environment. The City supports legislation and policies that emphasize sustainable development; improve environmental standards and the regulatory process; provide incentives and financial support for preservation of natural resources; promote sustainable energy and water policies; and support efforts to mitigate odor issues.
9. Promote Investment in Infrastructure
The City supports legislation and policies that promote investing in the maintenance and rehabilitation of aging infrastructure and build system capacity expansion in a smart and sustainable manner.
46 Item # C7.
City of Milpitas
408. 586. 3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www. milpitas.ca.gov
June 5, 2023
The Honorable Reginald Jones-Sawyer
Chair, Assembly Public Safety Committee
1020 N Street, Room 111
Sacramento, CA 95814
RE: Support of Fentanyl and Substance Use-Related Legislation
Dear Assembly Member Jones-Sawyer,
The City of Milpitas is encouraged that the Assembly Public Safety Committee will be considering a slate of bills that could help save countless lives throughout our state. The City of Milpitas supports several critically needed fentanyl and substance use-related pieces of legislation. These measures would stem the tide of illicit substance-related deaths in California and bring relief to the many communities mourning tragic, preventable deaths.
According to the Centers for Disease Control and Prevention, 71,000 people died from a synthetic opioid- related overdose in the United States in 2021, of which 7,000 deaths occurred in California. In other words, 1 out of every 10 deaths from synthetic opioids in the United States occurs in California. The increase in drug-related overdose deaths is largely being driven by the increase in synthetic opioid-related deaths, primarily fentanyl.
Local communities experience the realities of the opioid epidemic every day through the increasing toll on families, first responders, educators, child welfare agencies, public safety officials, health professionals, and community organizations, among others. As committed partners in finding solutions to address the growing substance use crisis in our state, the City of Milpitas supports the following measures:
Assembly Public Safety Special Hearing on Fentanyl
AB 33 (Bains) Fentanyl Addiction and Overdose Prevention Task Force.
AB 367 (Maienschein) Controlled Substances: Enhancements.
AB 474 (Rodriguez) State Threat Assessment Center: Transnational Criminal Organizations.
AB 955 (Petrie-Norris) Controlled Substances
Collectively, these bills will improve community safety in the City of Milpitas for our first responders and residents. Our police officers and firefighters are encountering fentanyl at an alarming rate. Each encounter places them at risk of an unintentional overdose. Additionally, the prevalence and availability of synthetic opioids has led to an increase in medical aids and deaths because of overdose in the City of Milpitas. These critical Assembly Bills will create a prevention task force, enhance sentencing for those that manufacture
47 Item # C7.
Support of Fentanyl and Substance Use-Related Legislation Page 2 of 2 June 5, 2023
and distribute fentanyl and establish penalties for those who utilize social media platforms to facilitate sales of the deadly drug.
Now, more than ever, is the time to act on measures that will preserve human life and improve the safety and well-being of all Californians.
For these reasons, the City of Milpitas requests your support on these fentanyl-related measures.
Sincerely,
Mayor Carmen Montano
City of Milpitas
C: Members, Assembly Public Safety Committee through Committee Secretaries (via email: Elizabeth Potter: [email protected]; and Samarpreet Kaur: [email protected]) Seth Miller, League of California Cities Peninsula Division Public Affairs Manager (via email: [email protected]) Milpitas City Council
A shwini Kantak, Acting City Manager
Matt Cano, Deputy City Manager
Jared Hernandez, Police Chief
48 Item # C7.
49 Item # C7.
50 Item # C7.
City of Milpitas
408.586.3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www.milpitas.ca.gov
May 31, 2023
The Honorable Assemblymember Chris R. Holden
Chair, Assembly Appropriations Committee
1021 O Street, Suite 8220
Sacramento, CA 95814
SUBJECT: AB 1175 (Quirk-Silva): Outdoor Advertising Displays Notice of Support
Dear Assemblymember Holden,
The City of Milpitas supports AB 1175, which would amend the Outdoor Advertising Act (OAA) to allow qualifying off-site advertising displays located in a former redevelopment area to be treated the same as on- premises signage. This would effectively exempt qualifying signs from certain deadlines and restrictions imposed by the OAA for up to five years. A local jurisdiction could request the five-year extension from Caltrans between January 1, 2024, and January 1, 2025.
To qualify for a five-year extension, the outdoor advertising display would need to meet the following criteria for good cause:
• The City has made a finding that the advertising display has had a positive economic impact on the redevelopment project area and provides a public benefit; • Caltrans has made no final determination of any violation by the display owner or operator of the OAA or any illumination standards for the previous ten years; • The display owner or operator has complied with all other standards adopted by the City.
The City of Milpitas supports AB 1175 because it recognizes the importance of preserving local control over land use regulation. The bill also recognizes the positive economic impact of maintaining attractive outdoor advertising displays for major businesses in the community, especially for those businesses that do not have direct frontage on a major freeway. When attractively designed and regularly maintained, such signage can be an effective economic development tool in promoting local businesses.
“In Milpitas, the Great Mall has been an important regional shopping destination, a major sales tax revenue generator, and approximately 200 retailers have provided vital job opportunities for local and Silicon Valley
51 Item # C7.
AB 1175 (Quirk-Silva): Outdoor Advertising Displays Page 2 of 2 May 31, 2023
residents for nearly 30 years. The Great Mall is situated between two major freeways, I-880 and I-680, and maintains off-premises advertising displays near key exits with modest signage for major tenants as well as wayfinding to help drivers navigate from the exits to the Great Mall. Both signs are located on private property and have not had violations or complaints in the past ten years.
The City of Milpitas has written to Caltrans to confirm that the two outdoor advertising displays owned, operated, and maintained by the Great Mall and Simon Property Group in Milpitas are in conformance with all provisions of Business and Professions Code Section 5273. Specifically, both displays advertise businesses or activities operating within the boundaries of a former redevelopment area, and at least 10 percent of the total advertising copy, but less than the maximum of 100 square feet, is used to identify the route to the Great Mall of the Bay Area from the nearest freeway offramp. The City will happily provide annual certification in a letter or other form to meet Caltrans certification requirements. The City will also continue to work with the Great Mall management team to ensure the maintenance of the two displays.
For these reasons, the City of Milpitas supports AB 1175. If you have questions or would like to discuss our position on this matter, please contact Milpitas Planning Director Ned Thomas at 669-213-5528 or via email at [email protected].
Sincerely,
Mayor Carmen Montano
City of Milpitas
C: Seth Miller, League of California Cities Peninsula Division Public Affairs Manager (via email: [email protected]) League of California Cities (via email: [email protected]) Milpitas City Council
Ashwini Kantak, Acting City Manager
Matt Cano, Deputy City Manager
Michael Mutalipassi, City Attorney
Ned Thomas, Planning Director
Alex Andrade, Economic Development Director
Jocelyn Gubler, Vice President, Development, Simon Property Group Robson Souza, General Manager, Great Mall
Lynn Rice, Director of Marketing and Business Development, Great Mall 52 Item # C7.
City of Milpitas
408.586.3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www.milpitas.ca.gov
September 8, 2023
The Honorable Aisha Wahab
Chair, Senate Public Safety Committee 1020 N Street, Room 545 Sacramento, CA 95814
RE: SB 719 (Becker) Law Enforcement Agencies: Radio Communications.
Notice of OPPOSITION (As Introduced 2/16/23)
Dear Senator Wahab:
The City of Milpitas must respectfully oppose SB 719 (Becker). This measure would create significant cost and logistical challenges for police agencies by requiring “real time” access to radio activity while responding to emergency calls.
In October of 2020, the California Department of Justice (DOJ) sent out a bulletin to all law enforcement agencies regarding radio encryption. This bulletin stemmed from an order by the Federal Bureau of Investigations to restrict all criminal justice information (CJI) and personal identifiable information (PII) to authorized personnel. The bulletin stated all transmission of such information must be encrypted and provided agencies two options: 1) move to full encryption of radio communications, or 2) establish a policy to restrict dissemination of CJI and PII, or data elements that meet those definitions.
To comply with the DOJ bulletin, many California law enforcement agencies were required to upgrade their radio systems. This cost millions of dollars, even for smaller agencies.
Under existing law, all radio communications are available through already existing Public Records Act regulations. Allowing “real time” access would potentially disrupt local law enforcement response as media personnel dispatch to volatile scenes. Not only will their news vans potentially block ingress and egress routes for first responders, but they could also potentially put themselves in danger, further impacting first responder strategies.
Additionally, this increased access runs contrary to standards set forward by the California Law Enforcement Telecommunications System (CLETS) Policies, Practices and Procedures. As stated in the DOJ Memo, access to Criminal Justice Information and Personally Identifiable Information must be limited to authorized personnel which includes authorized law enforcement, criminal justice personnel, or lawfully authorized designees. Access to information derived from CLETS is intended to remain confidential and for official use only.
53 Item # C7.
SB 719 (Becker) Law Enforcement Agencies: Radio Communications. Page 2 of 2 September 8, 2023
SB719 fails to recognize operational challenges and puts our front-line officers in unnecessary peril by forcing California Law Enforcement Telecommunications System (CLETS) information to be shared via alternate means such as a cell phone or computer. This creates a hazardous setting in that officers are not able to remain primarily focused on the situation at hand. Instead of being able to quickly use their dedicated primary radio channel to get vital information, they will have to change channels, turn their attention to keying in a number on a phone, wait in the queue for the call or request to be answered, and remain until the data is processed/returned. Because a phone call is a one-on-one conversation, other officers will not have situational awareness should the CLETS return reveal dangerous subject details. The same concern exists for an officer to change channels or enter the information on a tablet or laptop.
The measure is also overly broad in its definition of media representative or organization. The words, “any news service,” allows for anyone with a podcast or social media account to claim media privileges.
Additionally, in emergency situations, law enforcement often requests dispatchers to broadcast the involved party’s California Law Enforcement Telecommunications System (CLETS) information over the main channel for safety reasons. Officers need to know in “real time” who they may be encountering prior to arrival. This includes the person’s criminal history and if they have a proclivity of violence toward law enforcement. It would be impractical to switch over to a different channel to receive this information while responding to an emergency call adversely impacting public safety response times and putting our residents unnecessarily at risk. . Officers would miss not only information going over the main channel regarding the current scene but also those on the main channel would not hear the information about the suspect’s history.
Cal Cities supports accountability on the part of law enforcement agencies concerning police technology and policies, as well as related oversight by local governing bodies. However, limits must be in place on disclosure of the full capabilities of technology to the general public where such disclosure would compromise the effectiveness of the
technology’s law enforcement applications
For these reasons, the City of Milpitas respectfully opposes your measure. If you have any questions, do not hesitate to contact me at 408-586-3024 or at [email protected].
Sincerely,
Carmen Montano
C: The Honorable Josh Becker
Members, Senate Public Safety Committee
Mary Kennedy, Chief Consultant, Senate Public Safety Committee Eric Csizmar, Consultant, Senate Republican Caucus
League of CA Cities Peninsula Division, Seth Miller (via E-mail: [email protected]) League of California Cities (via E-mail: [email protected]) Milpitas City Council
Ned Thomas, Acting City Manager
Ashwini Kantak, Assistant City Manager
Mayor, City of Milpitas
54 Item # C7.
55 Item # C7.
56 Item # C7.
City of Milpitas
408.586.3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www.milpitas.ca.gov
September 8, 2023
The Honorable Cecilia Aguiar-Curry
Chair, Assembly Committee on Local Government
1020 N Street, Room 157
Sacramento, CA 95814
RE: AB 1504 (McCarty) Electric Vehicle Charging Stations: Permit Applications.
Notice of OPPOSITION
Dear Chair Aguiar-Curry,
The City of Milpitas regrettably must oppose unless amended AB 1504 (McCarty), which would require local jurisdictions to develop and complete a plan for the installation of electric vehicle charging stations (EVCS) in the public right-of-way that includes a permitting process.
Cities throughout California are supportive of helping the state address climate change and achieve its landmark greenhouse gas emission reduction goals. For years, cities have been leaders in supporting projects and programs that reduce greenhouse gas emissions by improving water and energy efficiency, increasing the diversion of materials away from landfills, and expanding access to renewable energy resources.
Additionally, cities across the state are working to quickly process EVCS permit applications to meet the state’s ambitious zero-emission vehicles and EVCS goals.
While California aggressively strives to reach the target of installing 250,000 shared EVCS by 2025, AB 1504 goes much further possibly compromising the public’s health and safety. AB 1504, as amended April 11th, requires a local agency to consult with local departments, energy providers, building, planning and transportation departments, as well as include the proposed EVCS plan in the next public hearing.
Additionally, AB 1504 would require local agencies to complete an assessment on EVCS in the private right- of-way, identify planning and permitting barriers to EVCS and to evaluate competing uses in the public right of way. Moreover, AB 1504 requires local agencies to complete an equity analysis to determine locations for EVCS in the public right of way, as well as develop site-specific design requirements and identify necessary updates to relevant code of the local agency.
While we support greater transparency and governmental efficiency, these proposed mandates appear duplicative in nature in the gathering and assessment of information that are typically considered when a local jurisdiction reviews EVCS applications and we are unaware of impediments in the current process that are preventing the deployment EVCS throughout the state.
57 Item # C7.
AB 1504 (McCarty) Electric Vehicle Charging Stations: Permit Applications. Page 2 of 2 September 8, 2023
While there are numerous applications and advantages to using battery energy storage systems it is important to keep in mind that there are hazards associated with these installations.
While there is growing interest in utilizing battery energy storage systems, the technology is still nascent and experiencing hazards that are unique to these systems. AB 1504 requires a costly planning process without an allocation from the state or including any specific explicit fee authority on EVCS permitting for cost recovery to comply with the proposed mandates contained in this measure.
For these reasons, we must regrettably oppose AB 1504, unless amended to be contingent on a future appropriation or contain explicit fee authority on EVCS permitting to recover costs associated with the various requirements proposed by this measure.
Cities support increased EV usage and related infrastructure; however, AB 1504 impacts would have potential negative consequences to our communities. If you have any questions, do not hesitate to contact me at 408-586-3024 or at [email protected].
Sincerely,
Carmen Montano
C: The Honorable Kevin McCarty
Members, Assembly Committee on Local Government
Angela Mapp, Chief Consultant, Asse mbly Committee on Local Government William Weber, Consultant, Assembly Republican Caucus
League of CA Cities Peninsula Division, Seth Miller (via E-mail: [email protected]) League of California Cities (via E-mail: [email protected]) Milpitas City Council
Ned Thomas, Acting City Manager
Ashwini Kantak, Assistant City Manager
Matt Cano, Deputy City Manager
Mayor, City of Milpitas
58 Item # C7.
City of Milpitas
408.586.3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www.milpitas.ca.gov
September 8, 2023
The Honorable Scott Wiener
Chair, Senate Committee on Housing
1021 O Street, Suite 3330
Sacramento, CA 95814
RE: SB 423 (Wiener) By-right housing approvals: multifamily housing developments: SB 35 (Chapter 366, Statutes of 2017) expansion.
Notice of Opposition
Dear Senator Wiener:
The City of Milpitas writes to express our opposition to your measure, SB 423, which would greatly expand SB 35 (Chapter 366, Statutes of 2017) provisions and extend the Jan. 1, 2026 sunset date to Jan.1, 2036.
On any given day, newspaper headlines in California and across the nation are highlighting the state’s growing housing supply and affordability crisis. Seven in ten Californians view housing affordability as one of the top problems in their community, and there is growing concern from residents that housing prices are so expensive, younger generations will be priced out of ever being able to buy a home.
The City of Milpitas intimately understands this crisis as it plays out in our community every day. Local leaders are working to find creative solutions so homes of all income levels can be built. They’re taking on these difficult and complex tasks, and in many cases successfully planning for more than 2.5 million new homes statewide, all while navigating the state’s annual barrage of overreaching housing bills that have thus far demonstrated limited success.
This measure would double-down on the recent trend of the state overriding its own mandated local housing plans by forcing cities to approve certain housing projects without regard to the needs of the community, opportunities for environmental review, or public input. While it may be frustrating for some developers to address neighborhood concerns about traffic, parking, and other development impacts, those directly affected by such projects have a right to be heard. Public engagement also often leads to better projects. Not having such outlets will increase public distrust in government and result in additional ballot measures limiting housing development.
Additionally, SB 35 has limited City staff’s ability to adequately implement important transportation and utility requirements by requiring ministerial approval. Many of these requirements must be implemented on a project-by-project basis and cannot be expressed as an objective standard. Therefore, the City of Milpitas has been unable to implement many of its project-specific requirements, which are critical to the health and safety of our communities.
59 Item # C7.
SB 423 (Wiener) By-right housing approvals: multifamily housing developments: Page 2 of 2 SB 35 (Chapter 366, Statutes of 2017) expansion.
September 8, 2023
Instead of continuing to pursue top-down, one-size-fits-all legislation, lawmakers should partner with local officials. That’s why the League of California Cities is calling on the Governor and lawmakers to include a $3 billion annual investment in the state budget to help cities prevent and reduce homelessness and spur housing development. Targeted, ongoing funding is the only way cities can find community-based solutions that get our residents off the streets and keep them in their homes. California will never produce the number of homes needed with an increasingly state driven, by-right housing approval process. What is really needed is a sustainable state investment that matches the scale of this long-term crisis.
For these reasons, the City of Milpitas respectfully opposes your measure. If you have any questions, do not hesitate to contact me at 408-586-3024 or at [email protected].
Sincerely,
Carmen Montano
C: Members, Senate Committee on Housing
League of CA Cities Peninsula Division, Seth Miller (via E-mail: [email protected]) League of California Cities (via E-mail: [email protected]) Milpitas City Council
Ned Thomas, Acting City Manager
Ashwini Kantak, Assistant City Manager
Matt Cano, Deputy City Manager
Mayor, City of Milpitas
60 Item # C7.
City of Milpitas
408.586.3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www.milpitas.ca.gov
September 8, 2023
The Honorable Dave Min
Chair, Senate Committee on Natural Resources and Water 1021 O Street, Ste. 3220 Sacramento, CA 95814
RE: AB 1572 (Friedman) – Neutral If Amended
Dear Chair Min:
On behalf of the City of Milpitas, we are writing to express our position of neutral if amended on AB 1572, which would create a regulatory structure around a prohibition on the use of potable water for the irrigation of nonfunctional turf on properties other than single-family homes. We do not have concerns with banning the irrigation of certain nonfunctional turf with potable water, but have one outstanding policy issue concerning the continued inclusion of multifamily housing within the scope of the bill.
The City of Milpitas a position of oppose unless amended, which was updated following the amendments on May 18 to the new position of neutral if amended. Each set of amendments made to the bill to date has continued to address concerns.
Background
The State Water Resources Control Board (State Water Board) is in the process of implementing the requirements of AB 1668 (Friedman) and SB 606 (Hertzberg), which were signed into law in 2018 and call for the creation of an urban water use standard. When the regulations are finalized, all urban water retail suppliers will be required to meet their urban water use objective based on the water that is needed in its service area for efficient indoor residential water use; outdoor residential water use; commercial, industrial and institutional (CII) irrigation with dedicated meters; water loss; unique local conditions (variances); and a bonus incentive for potable water reuse.
During the current drought, Governor Newsom has issued a number of executive orders calling on state and local agencies to implement various changes for drought response. On March 28, 2022, the Governor issued Executive Order N-7-22 calling on the State Water Board to implement emergency regulations by May 25, 2022 that, among other things, prohibited the use of potable water for the irrigation of nonfunctional turf.
ACWA, CMUA, and RWA supported these regulations while asking for specific consideration for disadvantaged communities and supporting the State Water Board’s recognition of the importance of tree health. These regulations were set to expire in June of 2023; the State Water Board just readopted these emergency regulations which will remain in effect until June 2024 once approved by the Office of Administrative Law.
61 Item # C7.
AB 1572 (Friedman) – Neutral If Amended . Page 2 of 2
September 8, 2023
Inclusion of Multifamily Housing
The proposed ban in AB 1572 would encompass all urban outdoor landscapes other than single-family homes. We believe the exclusion of single-family homes is appropriate. Further, we appreciate that the bill limits the prohibition of irrigation to potable water, which recognizes local efforts to implement locally sustainable recycling programs that will help mitigate some of the impacts of drought on our landscapes.
However, we are concerned about the inclusion of multifamily housing in the prohibition. Urban retail water suppliers do not uniformly categorize multifamily housing as either residential or as part of the commercial, industrial, and institutional sectors. Further, under the urban water use objective, which urban retail water suppliers have been working toward implementing, multifamily housing is considered residential. By combining multifamily housing with the commercial, industrial, and institutional sectors in this bill, different parts of the law would be treating these properties differently, leading to confusion.
By including multifamily housing in the scope of this prohibition, the State will be treating apartment renters differently from single-family homeowners or renters of single-family homes. Those that live in single-family homes, whether as renters or owners, would have no limitation on turf on the property, while apartment renters would be more limited. This bill prohibits irrigation of nonfunctional turf but does not require that nonfunctional turf be replaced with other climate appropriate landscaping. Many commercial and institutional properties will have strong incentives to replace their nonfunctional turf with an appropriate alternative landscape because these are public interfacing spaces. Many multifamily residential building owners will not have such strong incentives. By simply eliminating the irrigation of nonfunctional turf, multifamily properties are likely to face increased tree mortality and heat island impacts with nonfunctional turf simply being left to die with no appropriate replacement or all turf, including functional spaces, being removed in favor of other materials.
While we appreciate that the bill now includes a provision allowing affordable housing and disadvantaged communities additional time and making this conversion contingent upon state funding, this does not completely address our concern about the inclusion of multifamily housing. We continue to request excluding multifamily housing from the scope of this bill consistent with the State Water Board’s emergency regulations.
We appreciate this Committee’s consideration. If you have any questions, do not hesitate to contact me at 408-586-3024 or at [email protected].
Sincerely,
Carmen Montano
C: The Honorable Laura Friedman
Members, Senate Committee on Natural Resources and Water League of CA Cities Peninsula Division, Seth Miller (via E-mail: [email protected]) League of California Cities (via E-mail: [email protected]) Milpitas City Council
Ned Thomas, Acting City Manager
Ashwini Kantak, Assistant City Manager
Matt Cano, Deputy City Manager
Mayor, City of Milpitas
62 Item # C7.
City of Milpitas
408.586.3000
455 E. Calaveras Blvd.
Milpitas, CA 95035
www.milpitas.ca.gov
September 8, 2023
The Honorable Jacqui Irwin
Chair, Assembly Revenue and Taxation Committee
1020 N Street, Room 167A
Sacramento, CA 95814
RE: AB 84 (Ward) Property tax: welfare exemption: affordable housing.
Notice of OPPOSITION (3/7/2023)
Dear Assembly Member Irwin,
The City of Milpitas regretfully must oppose AB 84 (Ward), which would negatively impact local government property tax revenues by providing significant expansions of the “property tax welfare exemption.” Specifically, AB 84 allows land (including vacant land) to qualify for the exemption from the date restrictions are placed on the property, not when construction commences, expands the 140% Area Median Income (AMI) rule to cover all deed restricted affordable housing, and eliminates the statutory sunset date.
The City of Milpitas supports continuing to expand affordable housing statewide and efforts to reduce the cost of developing affordable housing. While the City of Milpitas finds the intent of AB 84 laudable, the measure fails to provide safeguards to ensure the exemption is not abused.
For example, allowing vacant land to receive the welfare exemption from the date of deed restriction rather than when construction commences, with no time limitation, incentivizes “land banking.” This would result in the opposite of the bills intent, ultimately disincentivizing developers from beginning construction in a reasonable and timely manner.
Additionally, expanding the ability of all affordable housing properties (not just Low-Income Housing Tax Credit units) to receive the welfare exemption if a tenant’s income increases from 80 percent to 140 percent AMI is being done so without legislative oversight. This is the very same oversight the Legislature deemed necessary when passing AB 1193 (Gloria, Chapter 756, Statutes of 2017), which imposed a 2027-28 fiscal year sunset date on the AMI rule expansion for Low-Income Housing Tax Credit units.
AB 84’s risks unfortunately outweigh its benefits and will disproportionately impact local governments including school districts. The negative fiscal impacts of this measure will be exclusively borne by local governments, without a guarantee that conditions to develop affordable housing will improve. We applaud the intent of the measure but have ongoing concerns with proposals that erode the local government tax base without a backfill from the state. While the City of Milpitas supports efforts to reduce the cost of developing affordable housing, local governments can ill-afford any additional erosion of local tax revenues in the short-or-long-term.
63 Item # C7.
AB 84 (Ward) Property tax: welfare exemption: affordable housing. Page 2 of 2 September 8, 2023
For these reasons, City of Milpitas respectfully opposes your measure. If you have any questions, do not hesitate to contact me at 408-586-3024 or at [email protected].
Sincerely,
Carmen Montano
C: The Honorable Christopher M. Ward
Members, Assembly Committee on Revenue and Taxation
Harrison Bowlby, Associate Consultan t, Assembly Committee on Revenue and Taxation Julia King, Consultant, Assembly Republican Caucus
League of CA Cities Peninsula Division, Seth Miller (via E-mail: [email protected]) League of California Cities (via E-mail: [email protected]) Milpitas City Council
Ned Thomas, Acting City Manager
Ashwini Kantak, Assistant City Manager
Matt Cano, Deputy City Manager
Mayor, City of Milpitas
64 Item # C7.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Authorize and Approve the Out-of-State Travel to Washington, D.C., for Mayor Carmen Montano to Attend the Forward Latino National Advocacy Day to be held on October 4 – 5, 2023, for an Estimated Total Not-to-Exceed Amount of $2,000 Budgeted Under the Individual Elected Official Allocation for Conferences/Meetings/Trainings (Staff Contact: Ned Thomas, Acting City Manager, 408-586-3059)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/19/2023
Recommendation: Authorize and approve the out-of-state travel to Washington, D.C., for Mayor Carmen Montano to attend the Forward Latino National Advocacy Day to be held on October 4 – 5, 2023, for an estimated total not-to-exceed amount of $2,000 budgeted under the Individual Elected Official allocation for Conferences/Meetings/Trainings.
BACKGROUND:
The Forward Latino organization holds its Annual National Advocacy Day in Washington, D.C. This highly attended annual advocacy day is scheduled for October 4-5, 2023. The Mayor’s attendance at the 2023 National Advocacy Day organized by the national organization called Forward Latino will provide advocacy and policy training, a briefing at the White House, and visits to the offices of United States Representatives and Senators. This series of meetings will bring together advocates from across the country to advocate on specific issues aligned with the City’s needs and interests such as community policing, safe neighborhoods, economic development, education, housing, immigration, and healthcare.
Participation in the National Advocacy Day event will provide Mayor Montano with direct access to White House staff and members of the California Congressional delegation where she can advocate on behalf of the City’s needs and interests. Advocacy training is a step toward fostering inclusivity and cooperation within the City and better serving the needs of the City’s diverse community. This training will also provide the Mayor with opportunities to network with other advocates and leaders, building valuable relationships that may lead to partnerships and resources that benefit the City.
Due to the event location, the Mayor will travel on October 3 to attend the first event on October 4; and will leave one day later to provide schedule flexibility to the City’s legislative consultant in scheduling additional meetings with members of the California Congressional delegation. The preliminary agenda is attached to this report.
ANALYSIS:
The City of Milpitas Travel and Expense Policy requires all travel for the elected officials and City Manager to be approved by the City Council. Council approval of this request will allow Mayor Carmen Montano and the City’s legislative consultants to have dialogues with the California Congressional delegations. Continued participation and attendance in conferences also ensure that the Milpitas community is fully represented at the regional, state, and national levels. Mayor Carmen Montano will be representing the City as a Latina Mayor.
POLICY ALTERNATIVE(S):
Not Applicable
65 Item # C8.
FISCAL IMPACT:
The estimated expense for the Washington, D.C. 2023 National Advocacy Day organized by the Forward Latino organization, including the registration fee, is $2,000. To date, Mayor Carmen Montano has an estimated balance of $7,750 in her Individual Elected Official allocation of $10,000 for Conferences/Meetings/Memberships.
California Environmental Quality Act (CEQA):
The action is an organizational or administrative activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.
RECOMMENDATION:
1) Authorize and approve the out-of-state travel to Washington, D.C., for Mayor Carmen Montano to Attend the forward Latino National Advocacy Day to be held on October 4 – 5, 2023, for an estimated total not-to-exceed amount of $2,000 budgeted under the Individual Elected Official allocation for Conferences/Meetings/Trainings.
Attachment(s):
(1) Draft conference agenda
(2) Council budget tracking
66 Item # C8.
Nat'I /;.dvocacy Day I Forward Latino
HOME ABOUT US
htt ps:{{torwa rd lat ino.org/natl-advocacy-d ay
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FORWARD
LATINO
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ISSUES & PROGRAMS CONTACT US TAKE ACTION v
National Advocacy Day
8/29/23, 12:23 AM
MEDIA
67 Item # C8.
Nat'! �dvocacy Oay I Forward Latino
Moving Forward Together
Forward Latino Board Members, Officers, Staff, Advisors & Affiliate Leaders are invited to join us for our 2023 National Advocacy Day in Washington, D.C. This action will bring together advocates from across the country to advocate on specific issues important to our nation's Hispanic
community.
Activities will include advocacy and policy training, a briefing at the White House, visits with U.S. Representatives and Senators, a private tour of the memorials on the National Mall and more!
The number of participants is limited so register today! Agenda
https:f/forwardlatino.org/natl-advocacy-day
8/29/23, 12:23 AM
68 Item # C8.
Nat'I )\dvocacy Day I Forward LaHno
Wednesday, October 4, 2023
• 2 p.m. Advocacy & Policy Training at Hotel
• 4 p.m. Depart for Private Memorial Tour on the
National Mall
• 6 p.m. Return to Hotel
• Evening Free
Thursday, October 5, 2023
• 8 a.m. Depart for The White House
• 11 a.m. Depart The White House for Luncheon
• 12 p.m. Luncheon
Dirksen Senate Office Building
Room: SD-Gl 1
50 Constitution Ave NE
Washington, DC 20002
• 1 p.m. Congressional Visits
• 5 p.m. End of Day Meeting (for those able to attend)
Notice:
The agenda is subject to change.
Step 1 of 3: Register for Event
Name*
https://forwardlatino.org/natl-advocacy-day
8/29/23, 12:23 AM
69 Item # C8.
Travel and Training FY 23-24 Budget Tracking for Council Training/Travel Event Total Remaining Balance
2,250.00$ 7,750.00$
1 Sacramento Annual Conf/Expo: Sept 20 - 22 (estimates only) $ 2,250.00 Training/Travel Event Total Remaining Balance
$ 2,250.00 $ 7,750.00
1 Sacramento Annual Conf/Expo: Sept 20 - 22 (estimates only) $ 2,250.00 Training/Travel Event Total Remaining Balance
$ - $ 10,000.00 1 Training/Travel Event Total Remaining Balance
$ 2,250.00 $ 7,750.00
1 Sacramento Annual Conf/Expo: Sept 20 - 22 (estimates only) $ 2,250.00 Training/Travel Event Total Remaining Balance
$ - $ 10,000.00 1 FY22-23 Amount
Expended/Estimated
Mayor Montano
Councilmember Phan
Councilmember Lien
Vice Mayor Chua
Councilmember Barbadillo
FY22-23 Amount
Expended/Estimated
FY22-23 Amount
Expended/Estimated
FY22-23 Amount
Expended/Estimated
FY22-23 Amount
Expended/Estimated
ATTACHMENT 2
70 Item # C8.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Authorize the City Manager to Execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc.; and Approve Budget Appropriation in the Amount of $149,000.00 to the Non-Departmental Operating Budget in the TASP Fund (Staff Contact: Matt Cano, Deputy City Manager, 408- 586-3012; and Roberto Alonzo, Principal Civil Engineer, 408-586-3316) Category: Consent Calendar-Community Development
Meeting Date: 9/19/2023
Recommendation: Authorize the City Manager to execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc.; and Approve budget appropriation in the amount of $149,000.00 to the non-departmental operating budget in the TASP Fund.
BACKGROUND:
On January 18, 2022, the City Council approved a Site Development Permit No. SD21-0004, Conditional Use Permit No. UP21-0005, Vesting Tentative Map No. MT21-0001 and Environmental Assessment No. EA21- 0002 to allow development of a 32-unit townhome subdivision comprised of two multi-family buildings, up to 50 feet in height (three to four stories), with tandem garages accessed from a central drive aisle, and associated site improvements on a 1.22 gross acre site located in the muti-family high density residential (R3) zoning district at 2001 Tarob Court (APN 086-36-034) within the Milpitas Metro Specific Plan area.
Projects within the TASP area are required to pay TASP Development Impact Fees (TASP Fee) to be used for design and construction of certain public facilities and improvements within the TASP area. In addition to the construction of the required TASP improvements for the project, the City requested the Developer to replace an existing 12-inch domestic water main within an existing PSUE along the south-eastern part of the property.
The water main replacement will serve more than the Developer’s properties within the TASP Area. The developer will be reimbursed for the actual cost to replace the water main, which is estimated not to exceed $149,000 from the TASP Fund.
A Fee Reimbursement Agreement is proposed to allow for the reimbursement against the TASP Fund paid by the Developer for replacement of the existing 12” Domestic Water Main. The Fee Reimbursement Agreement has been reviewed by the City Attorney as to form.
ANALYSIS:
Staff recommends the City Council grant authorization to the City Manager to execute the Fee Reimbursement Agreement for the construction of the TASP Public Improvements. The Developer will be reimbursed for the actual cost for the construction of the new public improvement’s design and construction of the new 12 inch domestic water main line that runs along the south-eastern public service utility easement, which is estimated not to exceed $149,000.
POLICY ALTERNATIVE(S):
Alternative 1:
Do not approve granting authorization to the City Manager to approve the Fee Reimbursement Agreement Amendment.
71 Item # C9.
Pros: None
Cons: If the Fee Reimbursement Agreement is not authorized the City would have to find other means to construct the public improvements or have to construct the public improvements ourselves. The City has determined that there will be greater efficiency if the Developer replaces the new 12-inch domestic water main during the construction of their project.
Reason for Not Recommending: Granting acceptance of installed public improvements would allow the City to own and maintain the improvements and would ensure that water main infrastructure stay up to date and reduce the risk of infrastructure failure.
FISCAL IMPACT:
The fee reimbursement for the public improvements would be funded by the TASP Fee. The actual amount of the reimbursement will be based upon the actual cost for design and construction of the improvements. The estimated reimbursement amount is not to exceed $149,000. A budget appropriation is needed from the TASP Fund.
California Environmental Quality Act (CEQA):
T
On January 18, 2022, City Council found and determined that the Project is exempt from further CEQA review pursuant to (1) CEQA Guidelines Section 15183 (Projects Consistent with a Community Plan or Zoning (2) CEQA Guidelines Section 15182 (Projects Pursuant to a Specific Plan); and (3) CEQA Guidelines Section 15168 (Program EIR). As part of the analysis to develop the conclusion on January 18, 2022, an Addendum to the TASP EIR was determined to be the appropriate document to address the modifications rather than a subsequent or supplemental EIR. The Addendum was developed and fully addressed all potential impacts associated with the project, and no material changes were made to the project that altered the conclusions of the Addendum.
RECOMMENDATION:
Authorize the City Manager to execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc.; and Approve budget appropriation in the amount of $149,000.00 to the non-departmental operating budget in the TASP Fund.
Attachment(s):
Attachment 1: Fee Reimbursement Agreement
Attachment 2: Budget Change Form
72 Item # C9.
1 34905\14361213.2
CITY OF MILPITAS
FEE REIMBURSEMENT AGREEMENT
FOR TRANSIT AREA SPECIFIC PLAN PUBLIC FACILITIES AND
PUBLIC IMPROVEMENTS
This Fee Reimbursement Agreement for Milpitas Metro Plan Public Facilities and Public Improvements (the “Agreement”), dated as of ________, 2023, is by and between the City of Milpitas, a municipal corporation of the State of California (“City”), and KB Home South Bay, Inc., a California corporation (“Developer”).
WITNESSETH:
WHEREAS, Developer is the permittee of that certain real property (APN No. 086-36-034) located at 2001 Tarob Court in Milpitas, California; and
WHEREAS, on January 18, 2022, the City Council conditionally approved Site Development Permit No. SD21-0004, Conditional Use Permit No. UP21-0005, Vesting Tentative Map No. MT21-0001, and Environmental Assessment No. EA21-0002 to allow development of a 32-Unit Townhome Subdivision comprised of two multi-family buildings, up to 50 feet in height (Three to Four Stories), with tandem garages accessed from a central drive aisle, and associated site improvements on a 1.22 gross acre site located in the multi-family high density residential (R3) zoning district at 2001 Tarob Court in Milpitas, California while making findings of CEQA exemption (the “KB Housing Project”); and
WHEREAS, City has adopted a Milpitas Metro Plan and a Transit Area Specific Plan Development Impact Fee (the “TASP Fee”) to provide funds to finance public facilities and public improvements within the Milpitas Metro area; and
WHEREAS, City has adopted a Fiscal Mitigation and Services Plan for the TASP (EPS no. 17107) in 2008, as amended in 2014, outlining the public facilities and public improvements that are to be constructed with the TASP fees (the “Financing Plan”); and
WHEREAS, the Project is in the Milpitas Metro area and subject to the TASP Fee; and
WHEREAS, the total Milpitas TASP Fee for the Project is estimated to be One Million Four Hundred Eight Thousand Two Hundred Eighty-Eight Dollars ($1,408,288). and
WHEREAS, in partnership with the Developer, the City has requested that the developer replace an existing water main that is long passed its recommend life cycle. The developer agrees to replace the water main requested by the City and the City will reimburse the Developer for the construction costs. A complete list of reimbursable items are shown in Exhibit A. (the foregoing being the “Improvements” and the construction documents describing the Improvements being the “Designs”). The Improvements and Designs are included in the Financing Plan and would otherwise be financed by the Milpitas TASP Fee, and which Improvements and Designs will serve more than the KB Housing Project; and
WHEREAS, City and Developer desire to enter into this Agreement to provide for allowable reimbursement against the Milpitas TASP Fee paid by Developer for the Improvements and Designs.
NOW, THEREFORE, in consideration of the mutual promises contained herein, City and Developer hereby agree as follows:
SECTION 1. Allowable Fee Reimbursements
73 Item # C9.
2 34905\14361213.2
Subject to the terms, conditions, and obligations of this Agreement, the City shall provide reimbursement to the Developer, from a portion of the Milpitas TASP Fee actually paid by Developer, in an amount based on verifiable actual costs of the Improvements and Designs pursuant to the procedure in Section 9 of this Agreement, which shall equal the actual amount paid by Developer to complete the Improvements and Designs. Under no circumstance shall the reimbursement exceed the amount of One Hundred Forty-Nine Thousand Dollars ($149,000). Under no circumstance shall the reimbursement exceed the actual amount of the TASP fee paid by the developer.
SECTION 2. Reimbursement Issuance Timing
2.1 Developer shall pay the City the full applicable Milpitas TASP Fee, prior to issuance of building permits per conditions of approval 79.
2.2 City shall pay to Developer the reimbursement required hereunder upon Developer’s completion and City’s acceptance of the Improvements and Designs as stipulated hereinafter, including Developer’s provision of all supporting documentation for all costs in accordance with the timing specified in Section 9 below.
SECTION 3. Completion of the Improvements
3.1 Developer shall complete construction of the Improvements in accordance with the plans and specifications approved by City and in accordance with City standard construction specifications and this Agreement, and the related Improvement Agreement. All Improvements shall be completed (determined by filing of a notice of completion) prior to issuance of first certificate of occupancy for the KB Housing project.
3.2 In the event the Improvements are not fully constructed and accepted by City as set forth herein, Developer shall be in breach of this Agreement, and in violation of the Project conditions of approval. In addition to all other legal remedies available at law or equity, City may seek reimbursement from Developer for all reimbursements provided under this Agreement including interest at the legal rate. Additionally, City may withhold any and all certificates of occupancy, building permits or any other City approval or permit relating to the Project.
SECTION 4. Inspection of Improvements
4.1 City shall at all times have access to the construction site during construction of the Improvements. Developer shall furnish City with all reasonable information necessary for ascertaining full knowledge of the Improvements with respect to the progress, workmanship and character of materials and equipment used and employed in the work contemplated herein.
4.2 Neither observation of the work by City nor failure of City to inspect the Improvements or to discover defects in material or workmanship shall relieve Developer from its obligations to complete construction in accordance with the plans and specifications approved by City and to ensure that the Improvements are free of defects in materials and workmanship.
SECTION 5. Acceptance of the Improvements
74 Item # C9.
3 34905\14361213.2
5.1 At such time as the Developer believes that the Improvements are complete, the Developer shall provide written notice of completion to the City, requesting an inspection. Within ten (10) business days, or as mutually agreed following the date of receipt of the Developers’ written notice of completion of Improvements, the City shall conduct a final inspection of the applicable Improvements. If during the final inspection, the City determines that the Improvements have not been completed in accordance with all applicable codes, regulations, permits and approved plans, the City shall prepare a punch list of all items to be completed by the Developer and shall provide such punch list to the Developer within ten (10) business days or as mutually agreed following the final inspection.
5.2 If the City delivers such punch list to the Developer within said ten (10) business day period, or such other mutually agreed upon period, then the Developer shall undertake to repair such punch list items in a diligent manner within twenty (20) calendar days. Upon completion of the punch list work, the Developer shall request another final inspection from the City and within ten (10) business days following such written notice from the Developer, the City shall conduct another final inspection.
5.3 If the City determines that the punch list work is complete and no other deficiencies are identified, the Developer shall be deemed to have successfully completed the final inspection.
If the City determines that the punch list work is not complete, then City and Developer shall repeat the inspection/punch list procedures specified in this Section until the successful completion of the punch list work and a final inspection. At such time as Developer has successfully completed the final inspection, City shall schedule the initial acceptance of the completed Improvements within thirty (30) calendar days thereafter before the City Council.
SECTION 6. Conveyance of the Improvements
Once the Improvements are accepted by the City Council and no liens have been filed with respect to such Improvements within ninety (90) days following the date of filing the Notice of Completion for such Improvement (or if valid liens were filed during such period, such liens have been bonded around or removed prior to acceptance), the Improvements shall become the property of the City. The Developer shall take any and all actions necessary to convey to the City and vest in the City full, complete and clear title to the Improvements through the City’s initial and final acceptance procedures.
SECTION 7. Completion and Acceptance of the Designs
7.1 Developer shall perform and complete the Designs in accordance with the Project conditions.
The Designs are considered deemed complete upon approval of the construction plans and specifications, including all required supporting documents by the City. 75 Item # C9.
4 34905\14361213.2
7.2 In the event the Designs are not fully completed and approved by City and/or other public agencies as set forth herein, Developer shall be in breach of this Agreement and in violation of the Project conditions of approval. In addition to all other legal remedies available at law or equity, City may seek reimbursement from Developer for all reimbursements provided under this Agreement including interest at the legal rate (if and to the extent any such reimbursements have been provided hereunder). Additionally, City may withhold any and all certificate of occupancy, building permit, or any other City approval or permit relating to the Project. City approved plans and specifications, including all supporting documents become City property upon completion of the Designs.
SECTION 8. Delivery of Design Plans and Specifications
Prior to acceptance of the Improvements by the City, the Developer shall deliver to the City copies of all plans, specifications, shop drawings, as-built plans, operating manuals, service manuals, warranties and other documents relating to the design, construction, installation and operation of the applicable Improvements. Plans shall be submitted in CAD format, GIS format and/or PDF format as acceptable to the City.
SECTION 9. Supporting Documents for the Actual Costs
Following Developer’s completion and City’s acceptance of the Improvements and the Designs provided in Sections 3 to 8 above, the Developer shall provide final invoices, records, change order documents, payment invoices, cancelled checks and other necessary documents, as requested by the City, in order to provide to the City a final accounting of the total amount of actual costs for the Improvements and the Designs. The City shall thereafter have sixty (60) days in which to review and approve such items. If the City notifies the Developer within that 60-day period that it does not approve all such items, and, if the Developer disputes the disapproval of such items by the City, the sixty (60) days may be extended as mutually agreed upon to provide an opportunity for the Parties to use diligent and good faith effort to resolve said dispute. Assuming no dispute as to the final accounting (or once said dispute has been resolved), the City shall, within thirty (30) days thereafter, reimburse the Developer the actual costs to complete the Improvement and Design, as documented in the final accounting, not to exceed the amount of TASP fees paid by the Developer. The amount of the actual costs for the Improvements and the Designs shall not exceed the estimated value for “KB Housing Project Improvements” identified on Exhibit “A” in the amount not to exceed One Hundred Forty-Nine Thousand Dollars ( $149,000) without the express prior written approval of the City, which will require an amendment of this Agreement.
SECTION 10. Limited City Obligation
The reimbursement obligations arising from this Agreement are neither a debt of the City nor a legal or equitable pledge, charge, lien, or encumbrance upon any of its property or upon any of its income, receipts, or revenues, except for the developer impact fees that would have otherwise been collected for the Improvements, the Designs and other capital facilities set forth in the Project plans for the TASP Fee program. Neither the City of Milpitas general fund nor any other fund of the City, except the TASP Fee program, shall be liable for the reimbursement or payment of any obligations arising from this Agreement. The reimbursement or taxing power of the City is not pledged for the payment of any obligation arising from this Agreement. The Developer shall not compel the forfeiture of any of the City’s property to satisfy any obligations arising from this Agreement.
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SECTION 11. Liens, Claims, and Encumbrances
Prior to acceptance of the Improvements by the City, the Developer shall provide a written guarantee and assurance to the City that there are no liens, claims, or monetary encumbrances on the Improvements and the Designs, together with unconditional final releases from all contractors and material suppliers, and with copies of invoices and corresponding checks issued by the Developer for all items for which fee reimbursements are requested under this Agreement for the Improvements and the Designs. The City shall have no obligation to accept the Improvements, or to issue any reimbursements for Improvements and the Designs until the Developer has cleared any and all liens, claims and monetary encumbrances from the Improvements and the Designs and provided the required documentation, guarantee and assurance in writing, to the satisfaction of the City.
SECTION 12. No Third Party Beneficiary
By entering into this Agreement, City is not entering into any contract or agreement with any general contractor, subcontractor, or other party nor is any general contractor, subcontractor, or other party a third party beneficiary of this Agreement, and City shall have no obligation to pay any general contractor, subcontractor, or other party for any work that such general contractor, subcontractor, or other third party may do pursuant to the plans and specifications for the Improvements and the Designs.
SECTION 13. Warranty and Repair
In accordance with this Section 13 and the terms and conditions of the Subdivision Improvement Agreement, Developer hereby warrants the Improvements as to materials and workmanship and should any failure of any Improvements occur within a period of one (1) year after initial acceptance of such Improvements by City Council, the Developer shall promptly cause the needed repairs to be made without cost to the City. The provisions contained herein shall not be deemed to limit any rights Developer has or may have to seek damages or other relief from any acts or omissions of any contractor involved in the construction or design of the Improvements. Nothing herein shall be construed to limit any other warranties City may have from the manufacturer or any materials used in the Improvements nor in any way limit any rights of City in equity or law under this Agreement.
SECTION 14. Notice
Any notice, payment, or instrument required or permitted by this Agreement to either party shall be deemed to have been received when personally delivered to that party or seventy-two (72) hours following deposit of the same in any United States Post Office, first class, postage prepaid, addressed as follows:
City: Matt Cano, P.E., Deputy City Manager/Acting City Engineer Milpitas City Hall
455 East Calaveras Boulevard
Milpitas, CA 95035
Phone: 408-586-3012
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6 34905\14361213.2
Developer: Peter Lezak, Vice President
KB Home South Bay, Inc.
10990 Wilshire Blvd, Suite 700
Los Angeles, CA 90024
Any party hereto may, by notice given hereunder, designate a different address to which subsequent notices, payments, and instruments shall be delivered to it.
SECTION 15. Term
The term of this Agreement shall start as of the date first written above and shall remain in effect for a one-year term, unless extended by the parties by written agreement.
SECTION 16. Captions
Captions to Sections of this Agreement are for convenience purposes only and are not part of this Agreement.
SECTION 17. Severability
If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full effect as though such invalid or unenforceable provision had not been a part of this Agreement.
SECTION 18. Successors and Assigns/Reimbursements to Developer
This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. The TASP Fee Reimbursement granted herein shall run with the land with respect to their application against the TASP Fees otherwise payable upon development of the Project.
SECTION 19. Governing Law Venue
This Agreement is made under, and shall in all respects be interpreted, enforced, and governed by the laws of the State of California. In the event of a dispute concerning the terms of this Agreement, the venue for any legal action shall be with the appropriate court in the County of Santa Clara, State of California.
SECTION 20. Indemnity
To the fullest extent permitted by law, Developer shall protect, indemnify, defend (with counsel acceptable to City) and hold City, its officers, employees, and agents harmless from and against any and all liability, loss, cost and obligations arising out of or resulting from any injury or loss caused directly or indirectly by any cause whatsoever in connection with or incidental to the (i) activities performed by Developer, its officers, employees, or agents under this Agreement, or (ii) negligence, omission or willful misconduct by Developer, its officers, employee, or agents.
SECTION 21. Time of Essence
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Time is of the essence in the performance of this Agreement.
SECTION 22. Waiver
Developer agrees that waiver by City of any breach or violation of any term, condition, or obligation of this Agreement shall not be deemed to be a waiver of any other term, condition, or obligation contained herein or a waiver of any subsequent breach or violation of the same term, condition or obligation.
SECTION 23. Compliance with Laws
Developer has been alerted to 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. If the work to be performed under this Agreement by Developer is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Developer agrees to fully comply with such Prevailing Wage Laws. Developer 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. It shall be mandatory upon Developer and its contractors 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 Section 1776), hours of labor (Labor Code Sections 1813 and 1815), public works contractor registration (Labor Code Sections 1725.5 and 1771.1) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). It shall be the sole responsibility of Developer to determine whether to comply with Prevailing Wage Laws for any or all work required by this Agreement. As a material part of this Agreement, Developer agrees to assume all risk of liability arising from any decision not to comply with Prevailing Wage Laws for work required by this Agreement.
SECTION 24. Entire Agreement
This Agreement contains the entire agreement between the parties with respect to the matters contained herein and may be amended only by subsequent written agreement signed by all parties.
SECTION 25. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.
[signatures on following page]
79 Item # C9.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day of the year first above written.
CITY:
By:
Ned Thomas
Acting City Manager
APPROVED AS TO FORM:
By: ________________________
Michael Mutalipassi
City Attorney
APPROVED AS TO CONTENT:
By: ________________________
Lauren Lai, CPA, MPA
Finance Director/Risk Manager
APPROVED AS TO CONTENT:
By: ________________________
Matt Cano, P.E.
Deputy City Manager/
Acting City Engineer
KB HOME SOUTH BAY INC.:
By:
Peter Lezak
Vice President
NOTE: DEVELOPER’S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES
OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER’S BUSINESS ENTITY.
80 Item # C9.
Prepared: S. Vangari
8/24/2023
ITEM
NO DESCRIPTION QUANTITY UNIT UNIT
PRICE TOTAL
1. Demo & Potholing
1. Pothole 2 EA $1,900.00 $3,800
2. OCIP Premium 1 LS $6,800.00 $6,800
3. Remove Ex 12" Waterline 1 LS $6,200.00 $6,200
4. Dispose of Ex ACP 12" Water Line 200 LF $173.00 $34,600 Demo Subtotal $51,400
2. Water
1. 12" PVC Potable Water (including all appurtenances) 200 LF $203.00 $40,600
2. Pressure & Bac T Testing 1 LS $8,200.00 $8,200
3. Connection to Existing ACP Water 2 EA $14,500.00 $29 ,000 Water Subtotal $77,800
OFF SITE SUBTOTAL COST $129,200
10% Contingency $12,920
Mobilization (5% of Subtotal Cost) $6,460
BOND ESTIMATE WATER REPLACEMENT TOTAL COST $148,580
Tarob Court
Tract 10592 - 2001 Tarob Court
32 Condominium Units (2 Buildings) 1.28 +/- Acres
Preliminary Engineer's Bond Estimate For Replacement of Existing 12" Waterline Milpitas, California
2001 Tarob Court, Milpitas CA 1 of 1 Wood Rodgers, Inc. 81 Item # C9.
4670 Willow Road, Suite 125 • Pleasanton, CA 94588 • 925.847.1556 • Fax: 925.847.1557 Offices located in California and Nevada
www. woodrodgers .com
August 2,2023
Peter Lezak
Vice President Forward Planning
KB Home – South Bay Division
5000 Executive Parkway, Suite 125
San Ramon, CA 94583
Re: 2001 Tarob Ct. Milpitas, CA – Existing Waterlin e Replacement Proposal/Contract for Professional Services
Dear Peter,
Wood Rodgers is pleased to provide this proposal to provide engineering and surveying services for Replacement of the existing 12” waterline at the 2001 Tarob Ct project in the City of Milpitas, CA.
Details of our project understanding, and assumptions are as follows:
General Project - Assumptions and Understanding
1. Existing 12-inch waterline to be replace is 200+ LF, located in and existing Public Utility Easement along Lundy Place.
2. The depth and location of the waterline is shown on the approved Tentative Map and is based on As-built plans received from the City of Milpitas.
Our scope of work and estimated fee, based on the a ssumptions and understanding above is as follows:
SCOPE OF WORK
ESTIMATED FEE
I. ENGINEERING
A. Due Diligence
1. Coordination with City of Milpitas & City of San Jose for required plans & permits.
$1,500 LS
B. Improvement Plans – City of Milpitas
1. Prepare one set Improvement Plans for the existi ng 12” waterline replacement in conformance with the City of Milpitas Requirements.
Plans to be submitted to the City Engineering Depar tment for review and approval.
a. Title Sheet, General Notes and Details
b. Demolition Plan
c. Plan/Profile (showing the existing & proposed fi nished grade and waterline information)
$8,000 LS
82 Item # C9.
Waterline Relocation - 2001 Tarob Ct, Milpitas, CA
August 2, 2023
C. City of San Jose Compliance/Approval
a. Submit improvement plans to City of San Jose for review and compliance letter.
$1,000 LS
D. Bond Estimates
1. Prepare a bond estimate based on first plan chec k submittal, revise as requested by City and Client during plan review process. $1,000 LS
E. Additional Plan Check Processing (beyond 3 rd Plan Check) $2,000 T&M TOTAL FINAL ENGINEERING ESTIMATED FEE $13,500 T&M / LS II. SUPPORT SERVICES
A. Engineering Support - Provide engineering suppor t as requested by the Client during plan review and processing. Supp ort may include the following on a time and material basis.
1. Meetings or teleconferences with Client, City an d/or other project Consultants as requested by Client.
2. Perform tasks and prepare exhibits.
3. Coordination with other professionals
$1,500 T&M
B. Construction Support - Provide office and field engineering support during bidding and construction including the follo wing on a time and material basis;
1. Respond to contractor questions during bidding.
2. Prepare miscellaneous exhibits for Construction Support as requested by the client.
3. Provide construction support; attend pre-job and field meetings. $ 1,000 T&M
C. As Built Drawings
1. Provide record drawings to City upon completion of construction. $1,000 LS
TOTAL SUPPORT SERVICES ESTIMATED FEE $3,500 T&M/LS
III. CONSTRUCTION SURVEYING
A. On-Site Construction Staking - Provide one (1) s et of construction stakes for each of the following phases of construc tion. Our budget assumes the number of mobilizations shown below for a total of no more than 2 move-ins.
1. 12” Waterline
$2,500 LS
B. Miscellaneous Staking/Re-Staking
1. Provide record drawings to City upon completion of construction. $1,500 T&M
TOTAL SUPPORT SERVICES ESTIMATED FEE $4,000 T&M/LS
TOTAL ESTIMATE FEE $21,000 T&M / LS
The estimated fees are based on negotiated rates to be utilized for the scope of work and budgets identified above. The estimate fees and rates are confidential, and client will not disclose. 83 Item # C9.
Waterline Relocation - 2001 Tarob Ct, Milpitas, CA
August 2, 2023
We propose to perform the above-identified scope of work on a lump sum (LS) or time & material (T&M) basis for a total estimated fee of $21,000 subject to the following conditions:
CONDITIONS
1. Any scope of work completed after December 31, 2 023 may be subject to cost of living increases. The client will pay all agency plan check, inspection, permit and application fees.
2. SWPPP / NPDES preparation, permitting, monitorin g and record keeping is assumed performed by others.
3. The Client shall be responsible for gathering an d providing the necessary documents including but not limited to environmental, geotechnical reports and paying all agency fees.
4. The client will provide additional technical rep orts not included in the scope of work identified above including acoustical, biological surveys and geotechnical reports with pavement, foundation, percolation, groundwater, and earthwork recommendations as required by the agencies.
5. This proposal does not include any environmental consulting services that may be necessary for this development.
6. Any cost estimate prepared represents preliminar y amounts that are subject to change. Wood Rodgers, Inc. will not assume responsibility for th e use of these costs in budget analysis or be held liable for potential development cost increases associated with the development of this.
7. This proposal does not include preparation of of f-site storm, sewer or water studies.
8. Client agrees that the T&M estimated costs provi ded herein are estimates only, that Wood Rodgers work will be performed on a time & materials basis, and that various contract scope line items included herein may be either exceeded or reduced by actual billing, based on the work requested and / or performed.
9. Reimbursable cost (printing and travel) is not i ncluded in the above fee estimate and will be charged on a time and material basis.
I trust this proposal is in sufficient detail to me et your needs. I have enclosed Exhibit A our stand ard invoicing, payment and liability policies/contract and Exhibit B our standard hourly rate schedule for time and material work. I would like to thank you f or the opportunity to provide the requested professional services. Should you have any questions, please do not hesitate to call.
Sincerely,
WOOD RODGERS, INC
________________________
Karrie Mosca, PE 60815
Vice President
84 Item # C9.
Waterline Relocation - 2001 Tarob Ct, Milpitas, CA
August 2, 2023
EXHIBIT A
WOOD RODGERS, INC. INVOICING PAYMENT & LIABILITY POLICIES
1. “Reimbursable expenses”, including, but not limi ted to, mileage, blueprints, and reproduction are not included in proposal costs unless specifica lly identified in the scope of work. Such costs shall be billed at the stated mileage rate or vendor invoice.
2. Invoices are submitted monthly by Wood Rodgers, Inc. Client shall notify Wood Rodgers, Inc. in writing of any and all objections, if any, to an invoice within thirty (30) days of the invoice date. Otherwise, the invoice shall be deem ed proper and accepted by the Client.
Amounts invoiced are due and payable upon receipt. Client’s account shall be considered delinquent if Wood Rodgers, Inc. does not receive f ull payment within forty-five (45) days after the invoice date.
3. A service charge shall be applied to delinquent accounts at the rate of 1.5% per month.
Payment thereafter shall be applied first to accrue d interest and then to unpaid principal.
Client shall pay all costs and expenses, including without limitation, reasonable attorney’s fees, incurred by Wood Rodgers, Inc. in connection with collection of delinquent accounts of Client.
4. If a delinquency occurs, Wood Rodgers, Inc. may choose to suspend work upon ten (10) days written notice to Client. Wood Rodgers, Inc. shall recommence work once such delinquency is completely cured and any and all att endant collection costs, fees, or other amounts required to be paid by Client under this co ntract are paid in full. If a delinquency by Client occurs and Wood Rodgers, Inc. chooses not to suspend work, no waiver or estoppel shall be implied. Client agrees and understands th at if Wood Rodgers, Inc. suspends its work pursuant to this paragraph, Wood Rodgers, Inc. shall not be liable for any costs or damages, including but not limited to delay and con sequential damages, to the Client, other owner of the property where such work is being perf ormed, or any other third party, that may arise from or be related to such work suspension. Client agrees to indemnify and hold Wood Rodgers, Inc. harmless from and against any and all damages, costs, attorney’s fees, and/or other expenses which Wood Rodgers, Inc. may incur a s a result of any claim by any person or entity arising out of such suspension of work.
5. When non-standard billing is requested by Client , time spent by office administrative personnel in preparation of such billing shall be c onsidered an extra cost to the project and shall be billed as such.
6. In providing services under this Agreement, Wood Rodgers, Inc. will endeavor to perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances.
7. Client and Wood Rodgers, Inc. recognize the risk s, rewards, and benefits of the project and Wood Rodgers, Inc. total fee for services. The ris ks have been allocated such that Client and Wood Rodgers, Inc. agrees that, to the fullest extent permitted by law, the total liability of Wood Rodgers, Inc. to Client and to all constructio n contractors and subcontractors on the project for any and all injuries, claims, losses, e xpenses, damages or claim expenses arising out of this agreement from any cause or causes shal l not exceed the total aggregate liability of $21,000. Such causes include but are not limite d to Wood Rodgers, Inc. negligence, errors, omissions, strict liability, and breach of contract and breach of warranty.
8. This agreement and the applicable Services Autho rization & Agreement or Proposal/Contract constitute the entire agreement between the parties and there are no conditions, agreements or representations between the parties except as ex pressed in said documents. It is not the intent of the parties to this agreement to form a partnership or joint venture. 85 Item # C9.
Waterline Relocation - 2001 Tarob Ct, Milpitas, CA
August 2, 2023
EXHIBIT B
Effective January 1, 2023
CLASSIFICATION STANDARD RATE
Principal Enginee r/ Geologist/Surveyor/Planner/ GIS/ LA* II $305 Prin cipal Engineer/ Geologist/Surveyor/Planner/ GIS/ LA* I $270 Senior Engine er/ Geologist /Surveyor/Planner/ GIS /LA* II $250 Senior Engineer/ Geol ogist /Surveyor/Planner/ GIS /LA* I $240 Project Engineer/ Geologist/Su rveyor/Planner /GIS/LA* II $225 Project Engineer/ Geologist/Surveyor/Planner/ GIS/ LA* I $210 Engineer/ Geologist/Surveyor/P lanner/ GIS/ LA* II $200 Engineer/ Geologist/Surveyor/Pla nner/ GIS /LA* I $190 Assistant Engineer/Geologist/Surveyor/Planner/GIS/LA* $165 Designer $95
Senior CAD Technician /Graphics Desi gner II $190
Senior CAD Technician /Graphics Designer I $175
CAD Techn ician /Graphics Designer $155
Project Coordinator $165
Adminis trat ive Assistant $145
1 Person Survey Crew $235
2 Person Survey Crew $340
3 Person Survey Crew $435
Consultants, Outs ide Services, Materials & Direct Charges Cost Plus 10% Overtime Work , Expert Witness Testimony and Preparation Rate Plus 50%
*LA = Landscape Architect
Blueprints, reproductions, and outside graphic services will be charged at vendor invoice. Auto mileage will be charged at the IRS standard rate, currently 62.5 cents per mile.
Fee Schedule subject to change January 1, 2024.
86 Item # C9.
City of Milpitas, California
BUDGET CHANGE FORM
From (Credit) To (Debit)
Type of Change
Account
Amount
Account
Amount
Check one:
Budget
Appropriation
Budget Transfer
350-2931
$149,000
350-951-4841
$149,000
Recommendation: Authorize the City Manager to Execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc. Approve budget appropriation in the amount of $149,000 to the non-departmental operating budget in the TASP Fund.
BACKGROUND:
On January 18, 2022, the City Council approved a Site Development Permit No. SD21 -0004, Conditional Use Permit No. UP21-0005, Vesting Tentative Map No. MT21-0001 and Environmental Assessment No. EA21-0002 to allow development of a 32-unit townhome subdivision comprised of two multi-family buildings, up to 50 feet in height (three to four stories), with tandem garages accessed from a central drive aisle, and associated site improvements on a 1.22 gross acre site located in the muti-family high density residential (R3) zoning district at 2001 Tarob Court (APN 086-36- 034) within the Milpitas Metro Specific Plan area.
Projects within the TASP area are required to pay TASP Development Impact Fees (TASP Fee) to be used for design and construction of certain public facilities and improvements within the TASP area. In addition to the construction of the required TASP improvements for the project, the City requested the Developer to replace an existing 12 -inch domestic water main within an existing PSUE along the south-eastern part of the property. The water main replacement will serve more than the Developer’s properties within the TASP Area. The developer will be reimbursed for the actual cost to replace the water main, which is estimated not to exceed $149,000 from the TASP Fund.
A Fee Reimbursement Agreement is proposed to allow for the reimbursement against the TASP Fund paid by the Developer for replacement of the existing 12” Domestic Water Main. The Fee Reimbursement Agreement has been reviewed by the City Attorney as to form.
ANALYSIS:
Staff recommends the City Council grant authorization to the City Manager to execute the Fee Reimbursement Agreement for the construction of the TASP Public Improvements. The Developer will be reimbursed for the actual cost for the construction of the new public improvement’s design and construction of the new 12 inch domestic water main line that runs along the south-eastern public service utility easement, which is estimated not to exceed $149,000.
POLICY ALTERNATIVE(S):
Alternative 1:
Do not approve granting authorization to the City Manager to approve the Fee Reimbursement Agreement Amendment.
Pros: None
87 Item # C9.
Cons: If the Fee Reimbursement Agreement is not authorized the City would have to find other means to construct the public improvements or have to construct the public improvements ourselves. The City has determined that there will be greater efficiency if the Developer replaces the new 12-inch domestic water main during the construction of their project.
Reason for Not Recommending: Granting acceptance of installed public improvements would allow the City to own and maintain the improvements and would ensure that water main infrastructure stay up to date and reduce the risk of infrastructure failure.
FISCAL IMPACT:
The fee reimbursement for the public improvements would be funded by the TASP Fee. The actual amount of the reimbursement will be based upon the actual cost for design and construction of the improvements. The estimated reimbursement amount is not to exceed $149,000. A budget appropriation is needed from the TASP Fund.
California Environmental Quality Act (CEQA):
Granting authorization to the City Manager to approve the Fee Reimbursement Agreement is not considered a project under CEQA as there will be no direct or reasonably foreseeable indirect physical change in the environment.
RECOMMENDATION:
Authorize the City Manager to Execute the Fee Reimbursement Agreement for Transit Area Specific Public Facilities and Public Improvements at the 2001 Tarob Court Project by KB Home South Bay, Inc. Approve budget appropriation of $149,000 to the non-departmental operating budget in the TASP fund.
Attachment(s):
Attachment 1: Fee Reimbursement Agreement
Attachment 2: Budget Change Form
Check if City Council Approval required. Meeting: September 19, 2023
Requested by: Department Head: Matt Cano Date:
Reviewed by: Finance Director: Lauren Lai Date:
Approved by: Acting City Manager: Ned Thomas Date:
Date approved by City Council, if required: Confirmed by:
FI/24786/V Form 30-222 (Rev. 1/92)
88 Item # C9.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute the Improvement Agreement with Extra Shine Car Wash, Inc., for the Completion of Offsite Public Improvements Located at 554 South Main Street Associated with Site Development Permit (SD18- 0010) and Conditional Use Permit (UA18-0020) (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012; Roberto Alonzo, Principal Civil Engineer, 408-586- 3316)
Category: Consent Calendar-Community Development
Meeting Date: 9/19/2023
Recommendation: Approve and authorize the City Manager to execute the Improvement Agreement with Extra Shine Car Wash, Inc., for the completion of offsite public improvements located at 554 South Main Street associated with Site Development Permit (SD18-0010) and Conditional Use Permit (UA18-0020).
BACKGROUND:
On May 18, 2021, the Milpitas City Council approved a Site Development Permit (SD18-0010) and Conditional Use Permit (UA18-0020) for construction of a new 5,490 square foot drive-thru car wash building, trash enclosure, parking area, and associated off-site public improvements at Extra Shine Car Wash, 554 South Main Street (APN 086-25-012). Off-site public improvements to be constructed include curb, gutter, sidewalk, driveways, utility services, and other miscellaneous items of work identified on the public improvement plans.
ANALYSIS:
The Developer, Extra Shine Car Wash, Inc., has agreed to enter into an Improvement Agreement (Attached) with the City for construction of project off-site public improvements which will be completed and accepted by the City upon completion of construction. The off-site public improvements will be completed within 1-year from the date of the Agreement, and the work is guaranteed by bonds or similar security to be posted by the Developer in the amount of $445,148.00. The City Engineer has reviewed the public improvement plans (2- 1433) and recommends the City Council approve the Improvement Agreement to allow for the construction of public improvements to proceed.
POLICY ALTERNATIVE(S):
Alternative 1:
Deny approval of Improvement Agreement for the installation of off-site public improvements.
Pros: None
Cons: Denying approval of the Improvement Agreement will cause construction of the off-site public improvements to be delayed and will prevent the owner and new tenants from occupying the newly constructed buildings.
Reason for Not Recommending: The proposed off-site public improvements are designed to support the public, Extra Car Wash and the new constructed building. Staff recommends the City Council approve the Improvement Agreement for construction of the off-site public improvements.
89 Item # C10.
FISCAL IMPACT:
The Developer reimbursed the city for costs associated with plan review, permitting and construction inspection for off-site public improvements constructed by the Developer. The City will have perpetual ownership and maintenance responsibilities for the improvements following construction and acceptance of the project. The Public Works Department provides funding for future maintenance of newly accepted City infrastructure through their operating budget.
California Environmental Quality Act (CEQA):
Approval of the Improvement Agreement implements this project for which CEQA review has already been completed by the Planning Division, and for which the Milpitas City Council finds on May 18, 2021 is exempt from environmental review under CEQA, pursuant to CEQA Guidelines Section 15303(c) (New Construction or Conversion of Small Structures), and, as a separate and independent basis, determined that the proposed Project is exempt from CEQA review pursuant to CEQA Guidelines Section 15183 (Projects Consistent with a Community Plan, General Plan or Zoning).
RECOMMENDATION:
Approve and Authorize the City Manager to Execute the Improvement Agreement with Extra Shine Car Wash, Inc., for the completion of Offsite Public Improvements Located at 554 South Main Street Associated with Site Development Permit (SD18-0010) and Conditional Use Permit (UA18-0020).
Attachment(s):
Improvement Agreement
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CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and DREF Milpitas, LLC, for the Apple Inc. Site Improvement Project at 260 S. Milpitas Blvd. (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012; and Roberto Alonzo, Principal Civil Engineer, 408-586-3316)
Category: Consent Calendar-Community Development
Meeting Date: 9/19/2023
Recommendation: Approve and authorize the City Manager to execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and DREF Milpitas, LLC, for the Apple Inc. Site Improvement Project at 260 S.
Milpitas Blvd.
BACKGROUND:
On May 24, 2023, the Property Owner received an approved building permit from the City allowing the development of the Property, for the construction of a new paved parking area and associated offsite and onsite improvements, landscaping, irrigation, and stormwater treatment measures on a 0.62 acre portion of a
7.28 acre site located at 260 South Milpitas Boulevard.
The development uses Best Management Practices (BMP), Low Impact Development (LID) and Integrated Management Practices (IMP). As part of this agreement the Developer shall be responsible for maintenance and operation of all the developments bio-treatment areas.
ANALYSIS:
In accordance with State Law and the City’s Municipal Regional Stormwater NPDES Permit (“MRP”) issued by the Regional Water Quality Control Board (“RWQCB”), new development and redevelopment projects that create and/or replace 10,000 square feet or more of impervious surface are required to incorporate Low Impact Development (“LID”) post construction stormwater control measures into the project. LID control measures include, for example, bioretention areas, flow-through planters, permeable pavement, infiltration trenches and tree well filters.
MRP section C.3.h.ii.(1)(a) and Milpitas Municipal Code Title XI Chapter 16 require development project property owners meeting the 10,000 square foot threshold to execute and record a Stormwater Management Facilities Operation and Maintenance Agreement (“Agreement”) with the City for the perpetual operation, maintenance and annual inspection of LID stormwater treatment facilities.
The Apple Inc. Site Improvement Project uses one type of storm water treatment device; the bio-retention stormwater treatment. The developer, DREF Milpitas, LLC, will be responsible for the perpetual maintenance and operation of the storm water treatment facilities which will be owned by the property owners and not maintained by the City.
DREF Milpitas, LLC, has executed the required Stormwater Management Operations and Maintenance Agreement for this Project. The Agreement requires the developer to operate and maintain the installed stormwater treatment facilities in accordance with the Municipal Regional Stormwater NPDES Permit and the developer will compensate the City to complete the required annual system inspections.
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Staff recommends the City Council approved the attached Stormwater Management Agreement (Attached) which has been reviewed by the City Attorney and approved as to form and by the Acting City Engineer as to content.
POLICY ALTERNATIVE(S):
Alternative 1: Not approve the Agreement with the City for operation, maintenance and annual inspection of stormwater treatment facilities.
Pros: None
Cons: Not approving the Agreement would cause the project to be not in compliance with the conditions of development and the City’s Municipal Code and would be prohibitive by federal and state law.
Reason for Not Recommending: To be in compliance with federal and state law, including the MRP, and to allow for the on-going maintenance and annual City Inspection of the installed stormwater treatment devices, staff recommends approval of the Agreement.
FISCAL IMPACT:
The developer will pay for the required annual maintenance and inspection of the stormwater facilities.
California Environmental Quality Act (CEQA):
On October 19, 2022, the Planning Department found that the project is categorically exempt from further environmental review pursuant to Section 15332 (In-Fill Development Projects) of CEQA. Execution of the Agreement is not considered a project under CEQA as there will be no direct or reasonably foreseeable indirect physical change in the environment.
RECOMMENDATION:
Approve and Authorize the City Manager to Execute a Stormwater Management Facilities Operation and Maintenance Agreement between the City of Milpitas and DREF Milpitas, LLC for the Apple Inc. Site Improvement Project at 260 S. Milpitas Blvd.
Attachment(s):
1. Stormwater Management Facilities Operation and Maintenance Agreement
2. Operation and Maintenance Plan
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May 10 , 202 3
STORMWATER MANAGEMENT PLAN
260 S MILPITAS BOULEVARD
MILPITAS, CA
PREPARED BY:
KIER + WRIGHT
3350 SCOTT BOULEVARD, BUILDING 22
SANTA CLARA, CA 95054
NEKTARIOS MATHEOU, P.E.
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Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 1
Table of Contents
PROJECT DESCRIPTION ............................................................................................................ 2 CONTACT INFORMATION ............................................................................................. 2 VICINITY MAP ............................................................................................................... 3 PROPOSED IMPROVEMENTS ........................................................................................ 3 DRAINAGE BASIN ......................................................................................................... 4 STORMWATER MANAGEMENT FACILITIES & MAINTENANCE................................................... 4 STORMWATER TREATMENT CALCULATIONS ................................................................ 5 HYDRAULIC SIZING CALCULATIONS .............................................................................. 6 LID SITE DESIGN STRATEGIES ................................................................................................... 7 MITIGATION MEASURES .............................................................................................. 7
Appendices
CERTIFICATIONS
C.3 DATA FORM
DESIGN DRAWINGS
SITE LEGAL DESCRIPTION
OPERATIONS & MAINTENANCE PLAN
GEOTECHNICAL MEMORANDUM
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Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 2
PROJECT DESCRIPTION
Project Addresses: 260 S Milpitas Blvd, Milpitas, CA 95035
Project APN(s): 086-38-005
This is a commercial use project that proposes to rebuild and expand an existing loading dock and truck parking area and new stormwater treatment f acilities for the disturbed areas. The project site consists of 7.28 acres of land at 260 S Milpitas Blvd , of which the project will disturb 0. 62 acres. The existin g buildings, landscape, and hardscape for the majority of the site will remain in place.
CONTACT INFORMATION
Developer: Apple, Inc.
One Apple Park Way,
Cupertino, CA 95014
Phone: (408) 996-1010
Civil Engineer: Kier & Wright
3350 Scott Blvd Building 22
Santa Clara, CA 95054
Phone: (408) 727-6665
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Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 3
VICINITY MAP
PROPOSED IMPROVEMENTS
The project proposed to replace approximately 25,000 SF of pavement located in a rear loading dock area on the east side of the site. Runoff from this rebuilt area will be directed into a bi oretention basin via surface flow before infiltrating or being conveyed to th e site’s existing on-site storm drain system which ultimately flows to the main in Milpitas Blvd.
While regrading is occurring within the loading dock area, o verall drainage patt erns on the site are not being changed in a way that would impact the existing storm drain system. The new development will very slightly decrease th e overall impervious area at the s ite, essentially leaving the net impervious ar ea unchanged from the exi sting condition and having a negligible impact on the amount of stormwater runoff leaving the site . See the attached C.3 form for details.
SITE
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Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 4
DRAINAGE BASIN
The entire site ultimately drains to the 18” main in S Milpitas Blvd. This water will discharge into the Wrigley Creek Watershed which flows into the San Francisco Bay.
STORMWATER MANAGEMENT FACILITIES & MAINTENANCE
Runoff from the site will be collected into treatment measures in the form of a Bioretention Pond. The water will be directed through surface flow as shown in the site grading and drainage plan into the proposed biotreatment areas.
Bioretention ponds are open, sloped trench areas with vegetation that allow run off to be retained within the pond. They are designed to treat runoff by filtering raw runoff through the soil media in t he treatment area. Biotreatment ponds trap particulate pollutants (suspended solids and trace metals) and promote infiltration. They are designed to allow for gradual rel ease of storm runoff into the storm drain system . T he imported Biotreatment Soil Mix used in the pond per C.3 stormwater guidebook specifications is designed to have an infiltration rate of 0.5 in/hr, such that a 6 ” deep pond will be fully drained within 12 hours of the rainfa ll event , removing the hazard of standing water in th e pond . Refer to Chapter 6 of the SCVURPPP’s C.3 Stormwater Handbook for additional information.
The bioretention pond o n this s ite is sized according to the combination volume -flow method. Per the Phase II permit require ments, as less than 50% of the impervious area on the site is being disturbed, the stormwater co ntrol measures are being applied just the disturbed area. The detailed drainage management areas for the project as well as the biotreatment area calculations are shown on the attached Stormwater M anagement Plan sheet.
Stormwater Control Measures (SCMs) designed for Water Quality Treatment, Runoff Retention and/or Peak Management must be maintai ned to ensure proper performance.
Regulated Projects with structural SCMs are required to follow the Operation and Maintenance (O&M) Plan and Maintenance Agreement that clearly establishes responsibility for all structural SCMs. An O&M Agreement is included in the appendix o f this report.
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Item # C11.
Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 5
STORMWATER TREATMENT CALCULATIONS
1.0 Project Information
1‐1 Project Name: AQ‐07
1‐2 City application ID: Milpitas
1‐3 Site Address or APN: 260 S Milpitas
1‐4 Tract or Parcel Map No: Parcel Number
1‐5 Site Mean Annual Precip. (MAP)1 15.0 Inches
Refer to the Mean Annual Precipitation Map in Appendix D of the C.3 Technical Guidance to determine the MAP, in inches, for the site. Click here for map 1‐6 Applicable Rain Gauge2 San Jose Airport (SCVURPPP) MAP adjustment factor is automatically calculated as: 1.08 (The "Site Mean Annual Precipitation (MAP)" is divided by the MAP for the applicable rain gauge, showin in Table 5.2, below.)
2.0 Calculate Percentage of Impervious Surface for Drainage Management Area (DMA) 2‐1 Name of DMA: DMA 1
For items 2‐2 and 2‐3, enter the areas in square feet for each type of surface within the DMA.
Type of Surface Area of surface type within DMA (Sq.
Ft)
Adjust Pervious
Surface
Effective Impervious
Area
2‐2 Impervious Surface 24,898 1.0 24,898
2‐3 Pervious Surface* 2,036 0.1 204 *Self‐Treating and Self‐Retaining not included Total DMA Area (square feet) = 26,934
2‐4 Total Effective Impervious Area (EIA) 25,102 Square feet
3.0 Calculate Unit Basin Storage Volume in Inches
Applicable Rain Gauge Mean Annual Precipitation (in)
San Jose Airport (SCVURPPP) 13.9
Palo Alto (SCVURPPP) 13.7
Palo Alto (SMCWPPP) 14.6
Gilroy (SCVURPPP) 18.2
Morgan Hill (SCVURPPP) 19.5
Boulder Creek (SMCWPPP) 55.9
La Honda (SMCWPPP) 24.4
Half Moon Bay (SMCWPPP) 25.92
San Francisco (SMCWPPP) 21
San Francisco Airport (SMCWPPP) 20.1
San Francisco Oceanside (SMCWPPP) 19.3
Oakland Airport (CWPAC) 18.35
3‐1 0.58 Inches
3‐2 Adjusted unit basin storage volume: 0.63 Inches
(The unit basin storage volume is adjusted by applying the MAP adjustment factor.) 3‐3 Required Capture Volume (in cubic feet): 1,309 Cubic feet (The adjusted unit basin sizing volume [inches] is multiplied by the size of the DMA and converted to feet)
4.0 Calculate the Duration of the Rain Event
4‐1 Rainfall intensity 0.2 Inches per hou r
4‐2 Divide Item 3‐2 by Item 4‐1 3.13 Hours of Rain Event Duration
5.0 Preliminary Estimate of Surface Area of Treatment Measure 5‐1 4% of DMA impervious surface 1,004 Square feet 5‐2 3% of DMA impervious surface 753 Square feet 5‐3 Volume of treated runoff for area in Item
5‐2 982 Cubic feet (Item 5‐2 * 5 inches per hour * 1/12 * Item 4‐2)
6.0 Initial Adjustment of Depth of Surface Ponding Area 6‐1 Subtract Item 5‐3 from Item 3‐3 327 Cubic feet (Amount of runoff to be stored in ponding area) 6‐2 Divide Item 6‐1 by Item 5‐2 0.4 Feet (Depth of stored runoff in surface ponding area) 6‐3 Convert Item 6‐2 from ft to inches 5.2 Inches (Depth of stored runoff in surface ponding area) 6‐4 If ponding depth in Item 6‐3 meets your target depth of 6"‐1 2", then Item 7‐1 is equal to Item 5‐2. If not, continue to Step 7‐1.
7.0 Optimize Size of Treatment Measure
7‐1 Enter actual treatment area larger or
smaller than Item 5‐2 based off plans. 725
7‐2 Volume of treated runoff for area in Item
7‐1 945 Cubic feet (Item 7‐1 * 5 inches per hour * 1/12 * Item 4‐2) 7‐3 Subtract Item 7‐2 from Item 3‐3 364 Cubic feet (Amount of runoff to be stored in ponding area) 7‐4 Divide Item 7‐3 by Item 7‐1 0.50 Feet (Depth of stored runoff in surface ponding area) 7‐5 Convert Item 7‐4 from feet to inches 6.0 Inches (Depth of stored runoff in surface ponding area) 7‐6
(The coefficient for this method is 1.00, due to the conversion of any landscaping to effective impervious area) Sq.ft. (enter larger area if you need less ponding depth; smaller for more depth.) If the ponding depth in Item 7‐5 meets target, stop here. If not, repeat Steps 7‐1 through 7‐5 until you obtain target depth. If the slope of the drainage area > 1%, then 11" will be the max ponding depth (slopes >1% will increase the ponding depth by 0.2 inches).
0.82 0.73
0.85 0.72
1.00 Unit basin storage volume from Table 5.2:
0.86 Worksheet for Calculating the Combination Flow and Volume Method These calculations are based on the combination flow and volume hydraulic sizing method provided in the Alameda, San Mateo, and Santa Clara County C.3 Technical Guidance Manuals. The steps presented below are explained in Chapter 5, Section 5.1 of the guidance manuals.
Table 5‐2: Unit Basin Storage Volumes (in inches) for 80 Percent Capture Using 48‐Hour Drawdowns Unit Basin Storage Volume (in) for Applicable Runoff Coefficients (Calculated for 100% Imperviousness)
0.58 0.62
0.64 1.00
1.00 2.04
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Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 6
HYDRAULIC SIZING CALCULATIONS
Pipe ID Qunit Diam unit Slope unit n Capacity Max Q
1 CFS 8 in. 0.005 ft/ft 0.012 0.9257 0.9953
d/D Q unit V unit
0.5 0.4628 CFS 2.6519 fps
0.75 0.8441 CFS 3.0058 fps
0.93 0.9953 CFS 2.9418 fps
1 0.9257 CFS 2.6519 fps
Hydraulic sizing calculations are based on the attached grading and drainage plans. Pipe #1 is the proposed 8” Ductile Iron pipe connecting the biotreatment pond to the existing site storm drain system.
Storm intensity was taken from the NOAA Hydrometeorological Design Studies Center Database, assuming a time of concentration of 10 minutes.
DMA
(sf)
DMA
(ac) Csite I10
unit Q10
unit
26934 0.61832 0.840 1.68 in/hr 0.8726 CFS
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Stormwater Management Plan 260 S Milpitas Blvd, Milpitas, CA
KIER & WRIGHT CIVIL ENGINEERS & SURVEYORS, INC.
3350 Scott Boulevard, Bldg. 22 • Santa Clara, California 95054 • 408-727-6665 • 408-727-5641 7
LID SITE DESIGN STRATEGIES
This site is utilizing the following LID site design str ategies to min imize the impact o f the development:
• Limit disturbance of creeks and natural drainage features • Minimize compaction of highly permeable soils
• Minimize impervious surfaces
• Minimize stormwater runoff by directing runoff from driveways and/or uncovered parking lots onto vegetated areas
MITIGATION MEASURES
No post-development flow attenuation mitigation measures are required beyond the stormwater treatment being proposed. Because the project doe s not increase impervious area on the site, the post-development flow rate shall be lower than the pre -development flow rate, and the site is disturbing less than 1 acre of land.
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OWNER CERTIFICATION:
I do hereby certify under penalty of law that all storm water management construction will be done according to the Storm Water Management Plan and its attachments.
________________________________ _________________
Signature Date
Type or print name and title
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ENGINEER CERTIFICATION:
This document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel prepared the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for preparing the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete.
________________________________ _________________
Signature Date
Nektarios Matheou
Type or print name and title
(Note: Any subsequent amendments to the SWMP should be reflected on this page)
12/13/2022
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City of Milpitas - SCVURPPP C.3. Data Form Page 1 of 4 12/2013
City of Milpitas – Stormwater Requirements C.3 Data Form
Santa Clara Valley Urban Run-Off Pollution Prevention Program
1. Project Information
Project Name: ____________________________________APN # _________________________ Project Address:
Cross Streets:
Applicant/Developer Name:
Project Phase(s): ______of______ Engineer:
Project Type (Check all that apply): /box2 New Development /box2 Redevelopment /box2 Residential /box2 Commercial /box2 Industrial /box2 Mixed Use /box2 Public /box2 Institutional /box2 Restaurant /box2 Uncovered Parking /box2 Retail Gas Outlet /box2 Auto Service (SIC code) _______ /box2 Other ________________________________________
Project Description: _______________________________________________________________
Project Watershed/Receiving Water (creek, river, or bay):_______________________________ Which Projects Must Comply with Stormwater Requirements? All projects that create and/or replace 10,000 sq. ft. or more of impervious surface on the project site must fill out this worksheet and submit it with the development project application.
All restaurants, auto service facilities, retail gasoline outlets, and uncovered parking lot projects (stand-alone or part of another development project, including the top uncovered portion of parking structures) that create and/or replace 5,000 sq. ft. or more of impervious surface on the project site must also fill out this worksheet.
Interior remodeling projects, routine maintenance or repair projects such as re-roofing and re-paving, and single family homes that are not part of a larger plan of development are NOT required to complete this worksheet.
What is an Impervious Surface?
An impervious surface is a surface covering or pavement that prevents the land’s natural ability to absorb and infiltrate rainfall/stormwater. Impervious surfaces include, but are not limited to rooftops, walkways, paved patios, driveways, parking lots, storage areas, impervious concrete and asphalt, and any other continuous watertight pavement or covering. Pervious pavement, underlain with pervious soil or pervious storage material (e.g., drain rock), that infiltrates rainfall at a rate equal to or greater than surrounding unpaved areas OR that stores and infiltrates the water quality design volume specified in Provision C.3.d of the Municipal Regional Stormwater Permit (MRP) is not considered an impervious surface.
For More Information
For more information regarding selection of Best Management Practices for stormwater pollution prevention or stormwater treatment in Santa Clara County : http://www.scvurppp -w2k.com/c3_han dbook_2012.shtml (5013-5014, 5541, 7532-7534, 7536-7539)
MP-01
086-38-005
260 S Milpitas Blvd, Milpitas, CA 95035
S Milplitas Blvd & Turquoise St
Apple
1 1
Kier & Wright
✔
✔
Repaving and expansion of a loading dock yard and associated truck parking Wrigley Creek
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City of Milpitas - SCVURPPP C.3. Data Form Page 2 of 4 12/2013
2. Project Size
a. Total Site Area:
____________________acre
b. Total Site Area Disturbed: __________________ ac re
(including clearing, grading, or excavating)
Existing Area (ft 2) Proposed Area (ft 2) Total Post-Project Area (ft 2) Replaced New
Impervious Area
Roof
Parking
Sidewalks and Streets
c. Total Impervious Area
d. Total new and replaced impervious area
Pervious Area
Landscaping
Pervious Paving
Other (e.g. Green Roof)
e. Total Pervious Area
f. Percent Replacement of Impervious Area in Redeve lopment Projects (Replaced Total Impervious Area ÷ Existing Total Impervious Area) x 100% = _ ______________________%
3. State Construction General Permit Applicability:
a. Is #2.b. equal to one acre or more?
/box2 Yes, applicant must obtain coverage under the Stat e Construction General Permit (i.e., file a Notice of Intent and prepare a Stormwater Po llution Prevention Plan) (see www.swrcb.ca.gov/water_issues/programs/stormwater/construction.shtml for details). /box2 No, applicant does not need coverage under the State Construction General Permit.
4. MRP Provision C.3 Applicability:
a. Is #2.d. equal to 10,000 sq. ft. or more, or 5,000 sq. ft. or more for restaurants, auto service facilities, retail gas outlets, and uncovered parking?
/box2 Yes, C.3. source control, site design, and treatment requirements apply. /box2 No, C.3. source control and site design requirements may apply – check with local agency b. Is #2.f. equal to 50% or more?
/box2 Yes, C.3. requirements (site design, source control, as appropriate, and stormwater treatment) apply to entire site.
/box2 No, C.3. requirements only apply to impervious area created and/or replaced.
5. Hydromodification Management (HM) Applicability:
a. Does project create and/or replace one acre or more of impervious surface AND is the total post-project impervious area greater than the pre-project (existing) impervious area? /box2 Yes (continue) /box2 No – exempt from HM, go to page 3 b. Is the project located in an area of HM applicability (green area) on the HM Applicability Map? ( www.scvurppp-w2k.com/hmp_maps.htm ) /box2 Yes, project must implement HM requirements
/box2 No, project is exempt from HM requirements
0.62 7.28
142,141
285,513
139,039
0 24,898
4,333
0 24,898
0 0
0 0
142,141
139,022
4,333
285,496
24,898
31,415
1,465
17 31,432
0 0
31,415
0 0
1,465
0 0
17 0
0 31,432
8.72%
✔
✔
✔
✔
✔
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City of Milpitas - SCVURPPP C.3. Data Form Page 3 of 4 12/2013
6. Selection of Specific Stormwater Control Measure s:
Site Design Measures
/boxshadowdwn Minimize land disturbed
/boxshadowdwn Minimize impervious
surfaces
/boxshadowdwn Minimum-impact street
or parking lot design
/boxshadowdwn Cluster structures/
pavement
/boxshadowdwn Disconnected downspouts
/boxshadowdwn Pervious pavement
/boxshadowdwn Green roof
/boxshadowdwn Microdetention in
landscape
/boxshadowdwn Other self-treating area
/boxshadowdwn Self-retaining area
/boxshadowdwn Rainwater harvesting and
use
(e.g., rain barrel, cistern
connected to roof drains) 1
/boxshadowdwn Preserved open space:
_______ ac. or sq. ft
.(circle one)
/boxshadowdwn Protected riparian and
wetland areas/buffers
(Setback from top of bank:
_______ft.)
/boxshadowdwn Other _______________
Source Control Measures
/boxshadowdwn Alternative building
materials
/boxshadowdwn Wash area/racks, drain to
sanitary sewer
2 /boxshadowdwn Covered dumpster area,
drain to sanitary sewer
2 /boxshadowdwn Sanitary sewer
connection or accessible
cleanout for swimming
pool/spa/fountain
2 /boxshadowdwn Beneficial landscaping
(minimize irrigation, runoff,
pesticides and fertilizers;
promotes treatment)
/boxshadowdwn Outdoor material storage
protection
/boxshadowdwn Covers, drains for loading
docks, maintenance bays,
fueling areas
/boxshadowdwn Maintenance (pavement
sweeping, catch basin
cleaning, good housekeeping)
/boxshadowdwn Storm drain labeling
/boxshadowdwn Other _______________
Treatment Systems
/boxshadowdwn None ( all impervious surface
drains to self-retaining areas)
LID Treatment
/boxshadowdwn Rainwater harvest and
use
(e.g., cistern or rain barrel
sized for C.3.d treatment)
/boxshadowdwn Infiltration basin
/boxshadowdwn Infiltration trench
/boxshadowdwn Exfiltration trench
/boxshadowdwn Underground detention
and infiltration system
(e.g. pervious pavement drain
rock, large diameter conduit)
Biotreatment 3
/boxshadowdwn Bioretention area
/boxshadowdwn Flow-through planter
/boxshadowdwn Tree box with
bioretention soils
/boxshadowdwn Other _______________
Other Treatment Methods
/boxshadowdwn Proprietary tree box filter 4
/boxshadowdwn Media filter (sand, compost,
or proprietary media)4
/boxshadowdwn Vegetated filter strip 5
/boxshadowdwn Dry detention basin 5
/boxshadowdwn Other _______________
Flow Duration Controls for Hydromodification Management (HM)
/boxshadowdwn Detention basin /boxshadowdwn Underground tank or vault
/boxshadowdwn Bioretention with outlet
control
/boxshadowdwn Other
_______________
1 Optional site design measure; does not have to be sized to comply with Provision C.3.d treatment requi rements. 2 Subject to sanitary sewer authority requirements.
3 Biotreatment measures are allowed only with completed feasibility analysis showing that infiltration and rainwater harvest and use are infeasible.
4 These treatment measures are only allowed if the project qualifies as a “Special Project”. 5 These treatment measures are only allowed as part of a multi-step treatment process. ✔
✔
✔
✔
✔
✔
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City of Milpitas - SCVURPPP C.3. Data Form Page 4 of 4 12/2013
7. Treatment System Sizing for Projects with Treatment Requirements
Indicate the hydraulic sizing criteria used and provide the calculated design flow or volume:
Treatment System Component Hydraulic Sizing
Criteria Used 3
Design Flow or
Volume
(cfs or cu.ft.)
3Key: 1a: Volume – WEF Method
1b: Volume – CASQA BMP Handbook Method
2a: Flow – Factored Flood Flow Method
2b: Flow – CASQA BMP Handbook Method
2c: Flow – Uniform Intensity Method
3: Combination Flow and Volume Design Basis
8. Alternative Certification: Was the treatment system sizing and design reviewed by a qualified third- party professional that is not a member of the project team or agency staff?
/box2 Yes /box2 No Name of Reviewer: _____________________________ ______________
9. Operation & Maintenance Information
A. Property Owner’s Name: ____________________________ _____________ B. Responsible Party for Stormwater Treatment/Hydromodification Control O&M:
a. Name: _________________________________________
b. Address: _________________________________________ c. Phone/E-mail: ____________________________________ _____
This section to be completed by City of Milpitas staff.
O&M Responsibility Mechanism
Indicate how responsibility for O&M is assured. Check all that apply:
/box2 O&M Agreement
/box2 Other mechanism that assigns responsibility (describe below):
___________________________________________________ _____________________________________ ___________________________________________________ _____________________________________
Reviewed:
Planning Department Public Works Department
Planning Division: ________ Land Development: ___ _____ Other (Specify): ________ Other (Specify): ________
Bioretention Pond
3 982 cu.ft.
✔
David Tietje, P.E. (EKI)
DREF Milpitas LLC
Sherry Martinez
1111 Broadway, Suite 1850, Oakland, CA 94607
(949) 351-7478 / [email protected]
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OF SHEETSSHEETOF260 SOUTH MILPITAS BOULEVARD MAY 2023DATESCALEDRAWN BYJOB NO.A21212MILPITAS,MC CALIFORNIA DESIGNED BYNMAS SHOWN NO.NO.REVISIONBYREVISIONBYMC3350 Scott Boulevard, Building 22Santa Clara, California 95054Phone: (408) 727-6665www.kierwright.comCALIFORIANNEERVICENGLAISIIOATESTTSIGDEREFSEREFORPNOL71236UOEHTAMSIRATKENO 260 SOUTH MILPITAS BOULEVARDOFSITE IMPROVEMENT PLANS
CIVIL ENGINEERARCHITECT
MILPITAS,CALIFORNIAVICINITY MAP
R
Callbefore you dig.below.Know what'sNSITE
SHEET INDEXSHEETDESCRIPTIONCIVILC1.0COVER SHEETC1.1DETAILSC2.0EXISTING SITE PLAN & BOUNDARYC3.0GRADING, DRAINAGE & UTILITY PLANC4.0STORMWATER CONTROL PLAN CONSTRUCTION STAKING NOTE:FOR ALL STAKING SCHEDULING AND REQUEST FORPROPOSALS PLEASE CONTACT:CHUY MARTINEZ(408)727-6665 EXT. 1035 [email protected]
GENERAL NOTES
260 S MILPITAS BLVD
C1.0COVER SHEET
S MILPITAS BLVD
NORTH
AREA 1
AREA 2AREA 3C2.0, C3.0, C4.0C2.0, C3.0, C4.0
C2.0, C3.0, C4.0
SCOPE OF WORKAREA 1:REMOVAL AND REPLACEMENT OF A FENCE WITH VEHICLE AND MAN GATES.INSTALLATION OF SAFETY DRAINS IN AREAS RECEIVING RUNOFF FROM THEADJACENT WORKSPACES.AREA 2:REMOVAL AND REPLACEMENT OF AC PAVEMENT IN REAR LOADING DOCKAREA. CHANGES TO THE LIMITS OF PAVEMENT. INSTALLATION OF NEWSTORMWATER TREATMENT FACILITIES AND ASSOCIATED UNDERGROUNDCONNECTIONS. NEW STRIPING FOR PROPOSED TRUCK PARKINGAREA 3:GRIND AND OVERLAY OF EXISTING PAVEMENT TO REDUCE A DRAMATIC DIPWITHIN VEHICLE DRIVE AISLE. ADJUSTING RIM OF EXISTING CATCH BASINTO NEW SLIGHTLY RAISED GRADE. 150
Item # C11.
OF SHEETSSHEETOF260 SOUTH MILPITAS BOULEVARD MAY 2023DATESCALEDRAWN BYJOB NO.A21212MILPITAS,MC CALIFORNIA DESIGNED BYNMAS SHOWN NO.NO.REVISIONBYREVISIONBYMC3350 Scott Boulevard, Building 22Santa Clara, California 95054Phone: (408) 727-6665www.kierwright.comCALIFORIANNEERVICENGLAISIIOATESTTSIGDEREFSEREFORPNOL71236UOEHTAMSIRATKENO C1.1DETAILS
SAFETY DRAIN2
VALLEY GUTTER
3 1CONCRETE CURBWEEP HOLE4SECTIONELEVATION
BIO-RETENTION POND (UNLINED)5
TYPICAL SECTION
PLAN
ISOMETRICDROP INLET TABLE
DROP INLETUS CONCRETE PRECAST GROUP6
NOTES :
NOTCHED CURB7
SECTION A-A30" WIDE NOTCHN. T. S.N. T. S.
NOTE:
CONCRETE CURB & GUTTER
8 CAST IRON COVERCONCRETE BOXELEVATIONCONCRETE COVERCLEAN OUT TO GRADE9 NOTES:
151
Item # C11.
OF SHEETSSHEETOF260 SOUTH MILPITAS BOULEVARD MAY 2023DATESCALEDRAWN BYJOB NO.A21212MILPITAS,MC CALIFORNIA DESIGNED BYNMAS SHOWN NO.NO.REVISIONBYREVISIONBYMC3350 Scott Boulevard, Building 22Santa Clara, California 95054Phone: (408) 727-6665www.kierwright.comCALIFORIANNEERVICENGLAISIIOATESTTSIGDEREFSEREFORPNOL71236UOEHTAMSIRATKENO R
Callbefore you dig.below.Know what'sCONSTRUCTION STAKING NOTE:FOR ALL STAKING SCHEDULING AND REQUEST FORPROPOSALS PLEASE CONTACT:CHUY MARTINEZ(408)727-6665 EXT. 1035 [email protected] SITE PLAN & BOUNDARY NORTH
LEGEND
AREA 1
SOUTH MILPITAS BOULEVARD
NORTHAREA 2
NORTHAREA 3
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Item # C11.
NOPARKINGNOPARKING
NOPARKING
NOPARKING
GRADING NOTESLEGEND
OF SHEETSSHEETOF260 SOUTH MILPITAS BOULEVARD MAY 2023DATESCALEDRAWN BYJOB NO.A21212MILPITAS,MC CALIFORNIA DESIGNED BYNMAS SHOWN NO.NO.REVISIONBYREVISIONBYMC3350 Scott Boulevard, Building 22Santa Clara, California 95054Phone: (408) 727-6665www.kierwright.comCALIFORIANNEERVICENGLAISIIOATESTTSIGDEREFSEREFORPNOL71236UOEHTAMSIRATKENO NORTH
NORTH
C3.0GRADING, DRAINAGE & UTILITY PLAN
AREA 1
AREA 2
NORTHAREA 3
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Item # C11.
NOPARKINGNOPARKING
NOPARKING
NOPARKINGNOPARKING
NOPARKING
DMA 01
TCM 01NOPARKING
LEGEND
OF SHEETSSHEETOF260 SOUTH MILPITAS BOULEVARD MAY 2023DATESCALEDRAWN BYJOB NO.A21212MILPITAS,MC CALIFORNIA DESIGNED BYNMAS SHOWN NO.NO.REVISIONBYREVISIONBYMC3350 Scott Boulevard, Building 22Santa Clara, California 95054Phone: (408) 727-6665www.kierwright.comCALIFORIANNEERVICENGLAISIIOATESTTSIGDEREFSEREFORPNOL71236UOEHTAMSIRATKENO C4.0STORMWATER CONTROL PLAN
260 S MILPITAS BLVD
S MILPITAS BLVD
NORTHNORTH
260 S MILPITAS BLVD
*BIOTREATMENT SIZING BASED ON COMBINATION FLOW & VOLUME METHODBIOTREATMENT SUMMARY TABLEAREATCMTREATMENTTYPETOTAL AREA(SQ. FT.)IMPERVIOUSAREA (SQ. FT.)PERVIOUSAREA (SQ. FT.)TREATMENTAREA REQUIRED(SQ. FT.)TREATMENTAREA PROVIDED(SQ. FT.)PONDINGDEPTH (IN.)DMA 01*01BIORETENTIONPOND26,93424,8982,0367258006 NORTHAREA 2
NORTHAREA 3
SOURCE CONTROL MEASURES·····
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Item # C11.
Order Number: NCS-1113975-SC
Page Number: 7
First American Title Insurance Company
LEGAL DESCRIPTION
Real property in the City of Milpitas, County of Santa Clara, State of California, described as follows:
PARCEL ONE:
PARCEL 1, AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "PARCEL MAP BEING A PORTION OF THE MILPITAS RANCHO", WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON MARCH 23, 1979 IN BOOK 438 OF MAPS AT PAGES 9 AND 10.
EXCEPTING THEREFROM ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW THE DEPTH OF 500 FEET OF SAID REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY, AS
RESERVED IN THE DEED FROM SACRAMENTO NORTHERN RAILWAY, A CORPORATION, RECORDED OCTOBER 3, 1980 AS INSTRUMENT NO. 6857909.
PARCEL TWO:
PARCEL A AS SHOWN ON THE PARCEL MAP ENTITLED "BEING A PORTION OF THE MILPITAS RANCHO AND A RESUBDIVISION OF PARCEL 5, MAP 417 M 12-13 LYING WITHIN THE CITY OF MILPITAS" FILED DECEMBER 9, 1985 IN BOOK 553 OF MAPS, PAGE 8, SANTA CLARA COUNTY RECORDS.
EXCEPTING THEREFROM ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW A DEPTH OF 500 FEET OF SAID REAL PROPERTY, WITHOUT THE RIGHT OF SURFACE ENTRY, AS
RESERVED BY STANDARD REALTY AND DEVELOPMENT COMPANY, A CALIFORNIA CORPORATION IN THE DEED RECORDED MAY 19, 1978 IN BOOK D681, PAGE 462 OF OFFICIAL RECORDS.
APN: 086-38-005 (Affects Parcel One) and 086-28-048 (Affects Parcel Two)
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Item # C11.
Stormwater Treatment Measure Operation and Maintenance
Inspection Report to the City of Milpitas, California
This report and attached Inspection and Maintenance Checklists document the inspection and maintenance conducted for the identified stormwater treatment measure(s) subject to the Maintenance Agreement between the City and the property owner during the annual reporting period indicated below.
I. Property Information:
Property Address or APN: 260 S Milpitas Blvd, Milpitas, CA Property Owner: DREF MILPITAS, LLC c/o CBRE
II. Contact Information:
Name of person to contact regarding this report: Sherry Martinez
Phone number of contact person: (949) 351-7478 Email: [email protected]
Address to which correspondence regarding this report should be directed:
1111 Broadway, Suite 1850
Oakland, CA 94607
III. Reporting Period:
This report, with the attached completed inspection checklists, documents the inspections and maintenance of the identified treatment measures during the time period from to .
IV. Stormwater Treatment Measure Information:
The following stormwater treatment measures (identified treatment measures) are located on the property identified above and are subject to the Maintenance Agreement:
Identifying Type of Treatment Measure Location of Treatment Measure on the Number of Property
Treatment
Measure
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Item # C11.
260 S Milpitas Blvd, Milpitas, CA
V. Summary of Inspections and Maintenance:
Summarize the following information using the attached Inspection and Maintenance Checklists:
Identifying Date of Operation and Maintenance Activities Additional Comments Number of Inspection Performed and Date(s) Conducted
Treatment
Measure
VI. Sediment Removal:
Total amount of accumulated sediment removed from the stormwater treatment measure(s) during the reporting period: _________ cubic yards.
How was sediment disposed?
landfill
other location on-site as described in and allowed by the maintenance plan other, explain ___________________
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Item # C11.
260 S Milpitas Blvd, Milpitas, CA
VII. Inspector Information:
The inspections documented in the attached Inspection and Maintenance Checklists were conducted by the following inspector(s):
Inspector Name and Title Inspector’s Employer and Address
VIII. Certification:
I hereby certify, under penalty of perjury, that the information presented in this report and attachments is true and complete:
Signature of Property Owner or Other Responsible Party Date
Type or Print Name
Company Name
Address
Phone number: Email:
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Item # C11.
Bioretention Area Maintenance Plan for
260 S Milpitas Blvd
Date: 12-01-2022
Project Address and Cross Streets_260 S Milpitas Blvd, Milpitas, CA ______ Assessor’s Parcel No.: 86-38-005
Property Owner: Apple Inc. Phone No.:
Designated Contact: Phone No.:
Mailing Address:
The property contains 1 bioretention area, located as described below and as shown in the attached site plan1.
Bioretention Area No. 1 is located in the eastern corner of the site adjacent to a truck parking/loading dock yard.
I. Routine Maintenance Activities
The principal maintenance objective is to prevent sediment buildup and clogging, which reduces pollutant removal efficiency and may lead to bioretention area failure. Routine maintenance activities, and the frequency at whi ch they will be conducted, are shown in Table 1.
Table 1
Routine Maintenance Activities for Bioretention Areas
No. Maintenance Task Frequency of Task
1 Remove obstructions, debris and trash from bioretention Monthly, or as needed after storm area and dispose of properly. events
2 Inspect bioretention area for ponded water. If ponded Monthly, or as needed after storm water does not drain within 2-3 days, till and replace the events surface soil and replant.
3 Inspect inlets for channels, soil exposure or other Monthly, or as needed after storm evidence of erosion. Clear obstructions and remove events sediment.
4 Remove and replace all dead and diseased vegetation. Twice a year
5 Maintain vegetation and the irrigation system. Prune and Twice a year weed to keep bioretention area neat and orderly in
appearance. Remove and or replace any dead plants.
6 Check that mulch is at appropriate depth (2 inches per soil Monthly specifications) and replenish as necessary before wet
season begins.
7 Inspect the energy dissipation at the inlet to ensure it is Annually, before the wet season functioning adequately, and that there is no scour of the begins surface mulch.
8 Inspect bioretention area using the attached inspection Monthly, or after large storm events, checklist. and after removal of accumulated
debris or material
1 Attached site plan must match the site plan exhibit to Maintenance Agreement.
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Item # C11.
Bioretention Area Maintenance Plan Date of Inspection:
Property Address: 260 S Milpitas Blvd Treatment Measure No.:
II. Use of Pesticides
The use of pesticides and quick release fertilizers shall be minimized, and the principles of integrated pest management (IPM) followed:
1. Employ non-chemical controls (biological, physical and cultural controls) before using chemicals to treat a pest problem.
2. Prune plants properly and at the appropriate time of year.
3. Provide adequate irrigation for landscape plants. Do not over water.
4. Limit fertilizer use unless soil testing indicates a deficiency. Slow -release or organic fertilizer is preferable. Check with municipality for specific requirements.
5. Pest control should avoid harming non-target organisms, or negatively affecting air and water quality and public health. Apply chemical controls only when monitoring indicates that preventative and non-chemical methods are not keeping pests below acceptable levels. When pesticides are required, apply the least toxic and the least persistent pesticide that will provide adequate pest control. Do not apply pesticides on a prescheduled basis.
6. Sweep up spilled fertilizer and pesticides. Do not wash away or bury such spills.
7. Do not over apply pesticide. Spray only where the infestation exists. Follow the manufacturer’s instructions for mixing and applying materials.
8. Only licensed, trained pesticide applicators shall apply pesticides.
9. Apply pesticides at the appropriate time to maximize their effectiveness and minimize the likelihood of discharging pesticides into runoff. With the exception of pre -emergent pesticides, avoid application if rain is expected.
10. Unwanted/unused pesticides shall be disposed as hazardous waste.
III. Vector Control
Standing water shall not remain in the treatment measures for more than five days, to prevent mosquito generation. Should any mosquito issues arise, contact the Santa Clara Valley Vector Control District (District). Mosquito larvicides shall be applied only when absolutely necessary, as indicated by the District, and then only by a licensed professional or contractor. Contact information for the District is provided below.
Santa Clara Valley Vector Control
District 1580 Berger Dr.
San José, California 95112
Phone: (408) 918-4770 / (800) 675-1155 - Fax: (408) 298-6356 www.sccgov.org/portal/site/vector
IV. Inspections
The attached Bioretention Area Inspection and Maintenance Checklist shall be used to conduct inspections monthly (or as needed), identify needed maintenance, and record maintenance that is conducted
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Item # C11.
www.baggengineers.com
phone: 650.852.9133fax: 650.852.9138[email protected] 138 Charcot Avenue, San Jose, California 95131‐1101
December 13, 2022
BAGG Project No. APPLE‐45‐00
Carl Bacon, Project Manager
[email protected]
Real Estate and Development
Apple Inc.
530 Stevens Avenue / MS 319‐6PM1
San Jose, California 95129
Dear Mr. Bacon,
Geotechnical Engineering Consultation‐
Mitigation of Distressed Parking Lot Pavement
260 S. Milpitas Boulevard
Milpitas, California
This letter documents our observations during a visit to the subject site on August 12, 2022 to examine
the distressed rear parking lot, and provide recommendations for its repair and/or replacement.
Several pits excavated by the grading contractor in the distressed area of the parking lot on the east side of the building revealed highly expansive, soft and saturated reddish brown fat clay. The suspected Resistance (R) value for this type of soil is typically less than 5. To stabilize the subgrade for the support of automobiles or delivery trucks, we recommend that the pavement should be pulverized and the subgrade treated with 5% by weight of quick lime (or lime‐cement mixture) to depths of 12 to 18 inches with the thicker treatment preferred given the chaotic and saturated nature of the subgrade soil.
Subgrade work in this manner should allow construction of a pavement section consisting of 6 inches of Caltrans Class 2 aggregate base overlain by 4 inches of asphaltic concrete. The subgrade as well as the aggregate base and the asphaltic concrete layers should be compacted to a minimum of 95% of the maximum dry density.
While the site soils consist of relatively impermeable fat clay, bio‐treatment ponds with imported bio‐ filtration soil mix may be constructed as planned for stormwater management as well as cleansing the runoff, provided an underdrain system is constructed to remove excess water during peak flows and discharge it to the local storm drainage system.
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Item # C11.
Apple Inc. BAGG Project No. APPLE‐45‐00
December 13, 2022 Page 2
We trust this letter satisfies your requirements at this time. The recommendations in this letter are contingent upon the geotechnical observation and testing of all pertinent aspects of the lime‐treatment and compaction of the subgrade as well as the pavement components by BAGG Engineers’ field staff.
Very truly yours,
BAGG
Engineers
Ebbi Hamidieh
6/30/2024
Ebbi Hamidieh Jason Van Zwol
Principal Chief Engineer
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Item # C11.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Review and Approve the FY 2022-23 Fourth Quarter Financial Status Report, Fund Balances Thereof, and Related Budget Amendments to Close-out the FY 2022-23 Budget and Authorize an Additional $100,000 Blanket Purchase Order to the National Auto Fleet Cooperative Agreement for Vehicle Carry-Forward (Staff Contact: Lauren Lai, Finance Director, 408-586-3111)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/19/2023
Recommendation: 1. Review the FY 2022-23 Quarterly Financial Status Report for the quarter ending June 30, 2023 (unaudited),
2. Approve budget amendments, and
3. Authorize an additional $100,000 to the National Auto Fleet Cooperative Agreement blanket purchase order for vehicle carry-forward.
BACKGROUND:
On June 7, 2022, the City Council adopted the Fiscal Year (FY) 2022-23 Operating Budget in the amount of $207.8 million and the General Fund Budget in the amount of $117.6 million. The City Council approved budget amendments that realigned revenue with updated projection and reduced personnel and non-personnel costs. The FY 2022-23 amended budget for General Fund revenue is $124.0 million and expenditures is $123.4 million. 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 2022-23 on budget versus actual revenues and expenditures of the General, Water, and Sewer Funds, based on unaudited financial reports as of June 30, 2023. Further, this staff report includes recommendations to close out the FY 2022-23 budget and implement the Council approved reserve policies.
Fourth Quarter Financial Status Report
The summary information below and three attachments provide an overview of the financial status for the General, Water, and Sewer funds for FY 2022-23 as of June 30, 2023. This summary also includes a variance analysis of budget vs. actual revenues and expenditures for the fourth quarter of FY 2022-23. This information is preliminary and subject to year-end close and independent auditor review.
The table below briefly summarizes the unaudited General Fund FY2022-23 revenues, expenditures, and surplus of $9.5 million, which is primarily due to one-time revenue and expenditure savings.
General Fund
($ million)
FY2022-23
Adopted
Budget
FY2022-23
Amended Budget
As of 02/15/23
Unaudited
Actual
As of 6/30/23
Budget
Variance $
Budget
Variance %
Revenue * $117.6 $124.0 $128.0 $4.0 3.2% Expenditure 117.6 123.4 118.5 (4.9) 3.9% Surplus/(Deficit) 0 0.6 ** 9.5 ** Revenues for FY22-23 is net of 30% Excess ERAF Property Tax due to pending litigation. * Primarily due to prior year encumbrances Pos and contracts
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Item # C12.
General Fund Revenues (Attachment 1)
For the twelve months ending June 30, 2023, the General Fund has received $128.0 million in revenues (net Excess ERAF) or 103.2%, of the FY 22-23 amended operating budget of $124.0 million, which includes operating transfers in. The variance is primarily due to one-time revenues related to property tax ($3.2 million), sales and use tax ($4.9 million), franchise fees ($151K), and other revenues. The amended budget of $124.0 million is comprised of the $117.6 million of the adopted budget plus the budget amendments of $6.0 million and a grant carryover of $0.3 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, 2023, $47.2 million, or 107.2%, of the $44.0 million of the amended budget has been received.
Revenues are 10.4% higher than last year at the same time, due to a higher Excess ERAF payment received. The restated property tax revenues, net of 30% Excess ERAF due to pending litigation is $46.1 million or 104.8% of the $44.0 million of amended budget. The City received $3.8 million in comparison with $2.1 million budgeted for Excess ERAF. This $1.6 million of favorable Excess ERAF is one-time revenue and Santa Clara County continues to caution the City against relying upon this surplus in future year services. The court case may still be appealed, and this Excess ERAF revenue remains a contingency.
Sales & Use Tax: For the twelve months ending June 30, 2023, $31.3 million, or 106.8%, of the $29.3 million amended budget has been received. Revenues are 11.3% greater than last year at the same time, however $1 million is a one-time favorable variance due to the timing of retailer remittance between prior year and current year.
Sales & Use Tax - Measure F: The district tax became operative April 1, 2021 and sunsets in eight years. For the quarter ending June 30, 2023, the City received $7.2 million, or 103.8%, of the amended budget.
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Item # C12.
Franchise Fees: For the twelve months ending June 30, 2023, $5.7 million, or 102.7%, of the $5.5 million amended budget has been received. Revenues are 9.7% greater than last year at the same time.
Hotel/Motel (TOT) Tax: For the twelve months ending June 30, 2023, $11.2 million, or 106.8%, of the $10.5 million amended budget has been received. Revenues are 39.7% greater than last year at the same time primarily due to the performance of the new hotel and several other hotels. Overall, the hotel operators did generate higher revenues than prior year; however most did not achieve the revenue level anticipated in the amended budget. At $11.2 million, it remains 23% below historical high of $14.5 million in FY2018-19.
License and Permits: For the twelve months ending June 30, 2023, $8.3 million, or 82.7%, of the $10.0 million amended budget has been received. Revenues are 25.7% lower than last year at the same time. Building Permit was $1.1 million below budget and Plan Check was $0.4 million below budget.
Charges for Services: For the twelve months ending June 30, 2023, $6.6 million, or 98.9%, of the $6.7 million amended budget has been received. Revenues are 16.0% greater than last year due to increased revenues in fire service charges and recreation fees.
Other Revenues: – For the twelve months ending June 30, 2023, $0.9 million, or 245.6% of the $0.4 million amended budget. This favorable revenue is due primarily to one-time receipts of utility penalties, which was prompted when the City resumed shut-off procedures including penalties.
Intergovernmental: For the twelve months ending June 30, 2023, $2.0 million, or 90.7%, of the $2.2 million amended budget has been received. Revenues are 32.1% 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, 2023, the General Fund expenditures were $118.5 million (including encumbrance of $2.0 million), which is $4.8 million (3.9%) less than the amended budget of $123.4 million. The budget represents the adopted appropriation of $117.6 million, plus $1.6 million of prior year encumbrances, and $4.1 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
AG Witt, LLC 5,899
Baker Tilly US, LLP 23,300
Kiley & Associates 24,750
Liebert Cassidy Whitmore 21,697
JPMorgan Chase Bank 5,964
TOTAL for the Quarter Ending June 30, 2023 $81,610
General Fund Reserve Policies Implementation and recommendation For the fiscal year ended June 30, 2023, the City’s General Fund unaudited net surplus is $9.5 million (net 30% Excess ERAF), with revenues of $128.0 million and expenditures of $118.5 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.
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Item # C12.
Based on the General Fund unaudited FY 2022-23 operating expenditures of $118.5, the reserve target for the Contingency Reserve and the Budget Stabilization Reserve (BSR) is set at $19.8 million or 16.67% of approximately $118.5 million. Consistent with the Council approved General Fund Reserve Policies (resolution no. 9167, dated June 7, 2022), staff allocated the FY 2022-23 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 $1.1 million for ERAF Litigation Contingency, which is based upon County contingency guidance of 30% of $3.8 million FY23 ERAF revenues.
Water Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2023, $30.6 million of charges for services, or 92.5%, of the $33.1 million budgeted has been received. Total revenue received amounts to $31.3 million, or 93.4%, of the $33.5 million budgeted.
Expenditures: For the twelve months ending June 30, 2023, $28.1 million, or 88.8%, of the $31.7 million amended budgeted has been spent.
Water Fund Expenditure Savings: For the fiscal year ended June 30, 2023, the Water Fund realized unaudited revenues of $31.3 million and expenditures of $29.0 million. This resulted in a one-time Water Fund expenditure savings of $2.3 million.
Sewer Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2023, $24.7 million of charges for services, or 100.9%, of the $24.5 million budgeted has been received. Total revenue received amounts to $25.3 million, or 102.4%, of the $24.7 million budgeted.
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Item # C12.
Expenditures: For the twelve months ending June 30, 2023, $17.5 million, or 99.2%, of the $17.6 million amended budgeted has been spent.
Sewer Fund Expenditure Savings: For the fiscal year ended June 30, 2023, the Sewer Fund realized unaudited revenues of $25.3 million and expenditures of $17.5 million This resulted in a one-time Sewer Fund expenditure savings of $7.8 million.
Budget Amendment Recommendations
Staff recommends for Council consideration and approval the following budget amendments to align appropriations to actual expenditures incurred, services rendered, and revenues received. The budget appropriation amendment recommendations are summarized below:
a. Increase Police budget from Federal Asset Seizure Fund 263 fund balance by $60,000 due to purchase of the Mobile Emergency Operations Center (MEOC) as budgeted in CP# 3464 Mobile Emergency Operations Center. This is due to the accounting requirement of posting costs within the Federal Asset Seizure Fund 263 versus the CP# 3464. This is not a request for additional budget appropriation.
b. Appropriate the interest earned from Lease Revenue Bond by $33,024 to increase the budget for CP# 3447 Fire Station No. 2 Replacement Project. This action will increase total budget amount by $33,024, increase funding source in CP# 3447 Fire Station with Lease Revenue Bond Proceeds by $853,210 and decrease General Government CIP funding source by $853,210. This is to swap funding source between CP# 3447 and CP# 3488 Community and Senior Center Energy Resilience Project.
c. Increase funding source in CP# 3488 Community and Senior Energy Resilience Project with General Government CIP by $853,210 and decrease Lease Revenue Bond funding source by $853,210. This is to swap funding source between CP# 3447 and CP# 3488 Community and Senior Center Energy Resilience Project, and this action will not change the total budget amount in CP# 3488.
d. Budget carryforward for vehicles of $343,834 to reduce budget in FY2022-23 and re-appropriate in FY2023-24. Due to supply chain inventory shortage, these vehicles could not be purchased in FY2022-
23. Authorize an additional $100,000 to the National Auto Fleet Cooperative Agreement blanket purchase order for this vehicle carry-forward
e. Budget carryforward for Economic Development for Innovation District Consultant ($75,000) and Property Asset Management Services ($50,000) to reduce budget in FY2022-23 and re-appropriate in FY2023-24. Due to the unique nature of these services, vendor selection could not be finalized in FY2022-23.
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 FY2022-23 surplus until final litigation resolution, 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, 2023, the City’s General Fund unaudited surplus of $9.5 million, with revenues of $128.0 million and expenditures of $118.5 million. This result is primarily from one-time revenues and expenditure savings. 167
Item # C12.
California Environmental Quality Act (CEQA):
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 2022-23 Quarterly Financial Status Report for the Quarter Ending June 30, 2023, and
2. Approve budget amendments and
3. Authorize an additional $100,000 to the National Auto Fleet Cooperative Agreement blanket purchase order for vehicle carry-forward.
Attachment(s):
1. FY 2022-2023 General Fund Revenues Report for Fiscal Year-To-Date June 30, 2023
2. FY 2022-2023 General Fund Expenditures by Department June 30, 2023
3. FY 2022-2023 Water and Sewer Funds Financial Status for Fiscal Year-To-Date June 30, 2023
4. Budget Change Form
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Item # C12.
FY23 FY23 FY23 FY23 FY23 FY23 FY23 FY22 Percentage
Adopted Amended Revenue Revenue Percentage Revenue
Increase
(Decrease)
Budget
Budget
Amendments
Grant
Carryover
Budget
as of 2/15/2023 As of 6/30/23
Outstanding
Favorable/
(Unfavorable)
of Amended
Budget as of 6/30/22 FY23 / FY22
Property Tax * 42,636,192$ 1,404,852$ 44,041,044 $ 47,210,420$ 3,169,376 $ 107.2% 42,758,866 $ 10.4% Sales and Use Tax 27,418,416 1,845,030 29,263,446 31,259,802 1,996,356 $ 106.8% 28,091,127 11.3% Sales and Use Tax - Measure F 6,409,019 545,981 6,955,000 7,215,906 260,906 $ 103.8% 6,273,147 15.0% Licenses, Permits & Fines 11,484,759 -1,500,000 9,984,759 8,259,590 (1,725,169) $ 82.7% 11,115,358 -25.7% Hotel/Motel Tax 8,329,238 2,146,384 10,475,622 11,189,758 714,136 $ 106.8% 8,012,001 39.7% Operating Transfer In 7,168,627 7,168,627 7,168,628 1 $ 100.0% 6,752,931 6.2% Charges for Services 5,969,453 704,841 6,674,294 6,599,113 (75,181) $ 98.9% 5,686,474 16.0% Franchise Fees 5,448,428 90,237 5,538,665 5,689,722 151,057 $ 102.7% 5,187,786 9.7% Intergovernmental 1,081,728 819,800 319,619 2,221,147 2,014,567 (206,580) $ 90.7% 2,968,070 -32.1% Other Taxes 1,067,452 1,067,452 1,044,357 (23,095) $ 97.8% 1,366,018 -23.5% Other Revenues 349,657 349,657 858,731 509,074 $ 245.6% 560,995 53.1% Interest Income 264,000 264,000 634,276 370,276 $ 240.3% 263,226 141.0% Total General Fund Revenue 117,626,970$ 6,057,125 $ 319,619 $ 124,003,714$ 129,144,870$ 5,141,156 $ 104.1% 119,035,999 $ 8.5% * Deduct 30% Excess ERAF (litigation) (1,141,415)$ (1,141,415)$ Total Gen Fund Revenues, net of Excess ERAF 128,003,455$ 3,999,741 $
CITY OF MILPITAS
General Fund Revenues
For Fiscal Year-To-Date June 30, 2023
General Fund Revenues
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Item # C12.
Departments
Adopted
Budget AmendmentsGrants C/OEncumb. C/O
Amended
Budget ExpenditureEncumbrance Total YTD Exp.
% of
Amended
Budget
FY22 Expenditure
Including
Encumbrance
% of Amended
FY22 Budget
City Council 557,729 -67,901 0 50,933 540,761 343,597 49,698 393,295 72.7% 358,902 64.6% City Manager 2,149,366 3,485 0 145,223 2,298,074 2,224,400 72,533 2,296,933 100.0% 2,263,927 109.5% City Clerk 567,660 -89,022 0 0 478,638 416,588 0 416,588 87.0% 506,283 90.2% Economic Development 965,847 1,385 0 750 967,982 776,510 0 776,510 80.2% 836,368 91.2% Policy Planning 4,240,602 -152,053 0 196,906 4,285,455 3,761,095 122,231 3,883,326 90.6% 3,965,480 96.7% Building Safety & Housing 6,175,459 -98,998 0 86,804 6,163,265 5,849,992 72,446 5,922,438 96.1% 5,034,479 89.8% City Attorney 1,198,946 -247,999 0 0 950,947 707,071 34,610 741,681 78.0% 991,070 96.3% Engineering 3,971,355 -281,379 0 14,193 3,704,169 3,448,649 20,080 3,468,729 93.6% 3,430,900 92.7% Finance 4,384,364 48,058 0 17,292 4,449,714 4,180,282 191,249 4,371,531 98.2% 4,307,936 100.6% Fire 28,188,870 657,347 0 162,568 29,008,785 28,542,555 210,856 28,753,411 99.1% 29,378,897 105.7% Human Resources 1,937,584 2,533 0 9,692 1,949,810 1,814,319 15,566 1,829,885 93.8% 1,628,823 88.0% Information Technology 4,091,945 -409,850 0 3,000 3,685,095 2,949,177 139,830 3,089,007 83.8% 3,241,939 89.9% Non-Departmental 7,570,821 2,384,205 0 267,008 10,222,034 8,385,214 586,370 8,971,584 87.8% 7,888,095 70.7% Planning 1,927,812 -34,148 23,774 303,834 2,221,272 2,117,989 118,271 2,236,260 100.7% 2,158,049 101.9% Police 37,935,204 -635,612 17,819 107,882 37,425,293 36,975,147 185,888 37,161,035 99.3% 34,842,481 99.7% Public Works 9,692,160 77,305 0 349,060 10,118,525 9,254,940 259,163 9,514,103 94.0% 9,009,239 98.4% Recreation & Community Services 5,969,980 770,226 0 47,027 6,787,233 6,115,339 74,568 6,189,907 91.2% 5,033,925 96.4% Transfers Out 341,866 2,050,000 0 0 2,391,866 2,391,866 0 2,391,866 100.0% 340,590 100.0% Grand Total 117,626,968 4,129,635 41,593 1,565,266 123,363,463 116,493,635 2,031,128 118,524,763 96.1% 111,251,903 96.8% City of Milpitas
General Fund Expenditure By Department Financial Status For Fiscal Year-To-Date June 30, 2023
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Item # C12.
Revenue Categories Adopted BudgetAmendments Grants C/OAmended Budget Receipt Outstanding % Receipt Receipt
6/30/2022
% Receipt
6/30/2022
Charges for Services 33,144,215 0 0 33,144,215 30,648,421 2,495,794 92.5% 30,249,470 97.1% Intergovernmental 0 0 0 0 59,084 (59,084) 0.0% 205,447 0.0% Licenses, Permits & Fines 0 0 0 0 99,113 (99,113) 0.0% (4,401) 0.0% Other Revenues 0 0 0 0 59,517 (59,517) 0.0% 379560 2156.5% Use of Money and Property 369,729 0 0 369,729 424,440 (54,711) 114.8% 199,327 53.6% Grand Total 33,513,944 0 0 33,513,944 31,290,575 2,223,369 93.4% 31,029,403 98.4% 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.
6/30/2022
% of Amended
Budget
6/30/2022
City Attorney 9,000 0 0 0 9,000 0 0 0 0.0% 4,805 68.0%
Engineering 0 0 0 0 0 0 0 0 0.0% 29,500 100.0%
Finance 1,111,223 2,147 0 18,537 1,131,907 939,583 11,647 951,230 84.0% 864,797 83.2% Non-Departmental 23,073,631 10,334 0 318,060 23,402,025 19,995,503 4,753 20,000,256 85.5% 19,469,599 94.4% Public Works 4,372,217 48,358 0 32,170 4,452,745 4,480,972 20,534 4,501,506 101.1% 4,274,680 99.4% Transfers In/Out/Revenue 2,687,393 0 0 0 2,687,393 2,687,393 0 2,687,393 100.0% 2,571,407 100.0% Grand Total 31,253,464 60,839 0 368,767 31,683,070 28,103,451 36,934 28,140,385 88.8% 27,214,788 95.2% Revenue Categories Adopted BudgetAmendments Grants C/O Amended BudgetReceipt Outstanding % Receipt Receipt
6/30/2022
% Receipt
6/30/2022
Charges for Services 24,482,217 0 0 24,482,217 24,699,029 (216,812) 100.9% 21,338,805 103.3% Intergovernmental 0 0 0 0 0 0 0.0% 100,623 0.0%
Licenses, Permits & Fines 0 0 0 0 56,775 (56,775) 0.0% (11,746) 0.0% Operating Transfer In 39,282 0 0 39,282 39,282 0 100.0% 11 102.2% Use of Money and Property 205,863 0 0 205,863 518,432 (312,569) 251.8% 287,809 114.7% Grand Total 24,727,362 0 0 24,727,362 25,313,518 (586,156) 102.4% 21,715,502 103.4% 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.
6/30/2022
% of Amended
Budget
6/30/2022
City Manager 0 0 0 0 0 0 0 0 0.0% 0
Engineering 0 0 0 0 0 0 0 0 0.0% 14,500 100.0%
Finance 711,305 1,248 0 18,537 731,090 609,959 11,647 621,606 85.0% 565,230 93.0% Non-Departmental 10,437,767 10,333 0 27,145 10,475,245 9,125,128 23,458 9,148,586 87.3% 8,232,725 65.7% Public Works 3,881,262 1,005,867 0 63,930 4,951,059 6,174,942 72,451 6,247,393 126.2% 3,008,369 88.5% Transfers In/Out/Revenue 1,444,196 0 0 0 1,444,196 1,444,196 0 1,444,196 100.0% 1,482,966 100.0% Grand Total 16,474,530 1,017,448 0 109,612 17,601,590 17,354,225 107,556 17,461,781 99.2% 13,303,790 73.8% City of Milpitas
Water and Sewer Financial Status
For Fiscal Year-To-Date June 30, 2023 (unaudited)
Water Fund
Sewer Fund
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Item # C12.
City of Milpitas, California
BUDGET CHANGE FORM
From (Credit) To (Debit)
Type of Change
(For Fiscal Year 2022-
2023)
Account
Amount
Account
Amount
Check one:
Budget
Appropriation
Budget Transfer
100-721-4851
100-724-4851
100-812-4851
237-242-4851
450-424-4851
500-424-4851
100-116-4237
100-116-4237
263-2909
331-951-3447-15-3899
334-2934
331-951-3447-15-3899
334-2931
331-951-3447-15-3899
330-2931
331-951-3488-15-3999
334-2931
331-951-3488-15-3999
330-2931
45,265
11,316
65,730
60,000
37,356
124,176
75,000
50,000
60,000
33,024
33,024
853,210
853,210
886,234
886,234
853,210
853,210
853,210
853,210
100-2940
100-2940
100-2940
237-2909
450-2940
500-2970
100-2940
100-2940
263-724-4851
334-3999
331-951-3447-2-4800
334-3999
331-951-3447-2-4800
330-3899
331-951-3447-2-4800
334-3899
331-951-3488-7-4800
330-3999
331-951-3488-7-4800
45,265
11,316
65,730
60,000
37,356
124,176
75,000
50,000
60,000
33,024
33,024
853,210
853,210
886,234
886,234
853,210
853,210
853,210
853,210
From (Credit) To (Debit)
Type of Change
(For Fiscal Year 2023-
2024)
Account
Amount
Account
Amount
Check one:
Budget
Appropriation
Budget Transfer
100-2940
100-2940
100-2940
237-2909
450-2940
500-2970
100-2940
100-2940
45,265
11,316
65,730
60,000
37,356
124,176
75,000
50,000
100-721-4851
100-724-4851
100-812-4851
237-242-4851
450-424-4851
500-424-4851
100-116-4237
100-116-4237
45,265
11,316
65,730
60,000
37,356
124,176
75,000
50,000
172
Item # C12.
Recommendation:
1. Review the FY 2022-23 Quarterly Financial Status Report for the quarter ending June 30, 2023 (unaudited),
2. Approve budget amendments, and
3. Authorize an additional $100,000 to the National Auto Fleet Cooperative Agreement blanket purchase order for vehicle carry-forward
BACKGROUND:
On June 7, 2022, the City Council adopted the Fiscal Year (FY) 2022-23 Operating Budget in the amount of $207.8 million and the General Fund Budget in the amount of $117.6 million. The City Council approved budget amendments that realigned revenue with updated projection and reduced personnel and non- personnel costs. The FY 2022-23 amended budget for General Fund revenue is $124.0 million and expenditures is $123.4 million. 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 2022-23 on budget versus actual revenues and expenditures of the General, Water and Sewer Funds, based on unaudited financial reports as of June 30, 2023. Further, this staff report includes recommendations to close out the FY 2022-23 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 2022-23 as of June 30, 2023, a variance analysis of budget versus actual revenues and expenditures for the fourth quarter of FY 2022-23. This information is preliminary and subject to year-end close and independent auditor review. The table below briefly summarizes the unaudited General Fund FY2022-23 revenues, expenditures, and surplus of $9.5 million, which is primarily due to one- time revenue and expenditure savings.
General Fund
($ million)
FY2022-23
Adopted
Budget
FY2022-23
Amended Budget
As of 02/15/23
Unaudited
Actual
As of 6/30/23
Budget
Variance $
Budget
Variance %
Revenue * $117.6 $124.0 $128.0 $4.0 3.2% Expenditure 117.6 123.4 118.5 (4.9) 3.9% Surplus/(Deficit) 0 0.6 ** 9.5
** Revenues for FY22-23 is net of 30% Excess ERAF Property Tax due to pending litigation. * Primarily due to prior year encumbrances Pos and contracts
General Fund Revenues (Attachment 1)
For the twelve months ending June 30, 2023, the General Fund has received $128.0 million in revenues (net Excess ERAF) or 103.2%, of the FY 22-23 amended operating budget of $124.0 million, which includes operating transfers in. The variance is primarily due to one-time revenues related to property tax ($3.2 million), sales and use tax ($4.9 million). The amended budget of $124.0 million is comprised of the $117.6 million of the adopted budget plus the budget amendments of $6.0 million and a grant carryover of $0.3 million. A summary analysis on major revenue sources of unaudited figures is provided below.
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Item # C12.
Property Taxes and Redevelopment Property Tax Trust Fund: For the twelve months ending June 30, 2023, $47.2 million, or 107.2%, of the $44.0 million of the amended budget has been received.
Revenues are 10.4% higher than last year at the same time, due to a higher Excess ERAF payment received. The restated property tax revenues, net of 30% Excess ERAF due to pending litigation is $46.1 million or 104.8% of the $44.0 million of amended budget. The City received $3.8 million in comparison with $2.1 million budgeted for Excess ERAF. This $1.6 million of favorable Excess ERAF is one-time revenue and Santa Clara County continues to caution the City against relying upon this surplus in future year services. The court case may still be appealed, and this Excess ERAF revenue remains a contingency.
Sales & Use Tax: For the twelve months ending June 30, 2023, $31.3 million, or 106.8%, of the $29.3 million amended budget has been received. Revenues are 11.3% greater than last year at the same time, however $1 million is a one-time favorable variance due to the timing of retailer remittance between prior year and current year.
Sales & Use Tax - Measure F: The district tax became operative April 1, 2021 and sunsets in eight years. For the quarter ending June 30, 2023, the City received $7.2 million, or 103.8%, of the amended budget.
Franchise Fees: For the twelve months ending June 30, 2023, $5.7 million, or 102.7%, of the $5.5 million amended budget has been received. Revenues are 9.7% greater than last year at the same time.
Hotel/Motel (TOT) Tax: For the twelve months ending June 30, 2023, $11.2 million, or 106.8%, of the $10.5 million amended budget has been received. Revenues are 39.7% greater than last year at the 174
Item # C12.
same time primarily due to the performance of the new hotel and several other hotels. Overall, the hotel operators did generate higher revenues than prior year; however most did not achieve the revenue level anticipated in the amended budget. At $11.2 million, it remains 23% below historical high of $14.5 million in FY2018-19.
License and Permits: For the twelve months ending June 30, 2023, $8.3 million, or 82.7%, of the $10.0 million amended budget has been received. Revenues are 25.7% lower than last year at the same time. Building Permit was $1.1 million below budget and Plan Check was $0.4 million below budget.
Charges for Services: For the twelve months ending June 30, 2023, $6.6 million, or 98.9%, of the $6.7 million amended budget has been received. Revenues are 16.0% greater than last year due to increased revenues in fire service charges and recreation fees.
Other Revenues – For the twelve months ending June 30, 2023, $0.9 million, or 245.6% of the $0.4 million amended budget. This favorable revenue is due primarily to one-time receipts of utility penalties, which was prompted when the City resumed shut-off procedures including penalties.
Intergovernmental: For the twelve months ending June 30, 2023, $2.0 million, or 90.7%, of the $2.2 million amended budget has been received. Revenues are 32.1% 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, 2023, the General Fund expenditures were $118.5 million (including encumbrance of $2.0 million), which is $4.8 million (3.9%) less than the amended budget of $123.4 million.
The budget represents the adopted appropriation of $117.6 million, plus $1.6 million of prior year encumbrances, and $4.1 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
AG Witt, LLC 5,899
Baker Tilly US, LLP 23,300
Kiley & Associates 24,750
Liebert Cassidy Whitmore 21,697
JPMorgan Chase Bank 5,964
TOTAL for the Quarter Ending June 30, 2023 $81,610
General Fund Reserve Policies Implementation and recommendation For the fiscal year ended June 30, 2023, the City’s General Fund unaudited net surplus is $9.5 million (net 30% Excess ERAF), with revenues of $128.0 million and expenditures of $118.5 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 2022-23 operating expenditures of $118.5, the reserve target for the Contingency Reserve and the Budget Stabilization Reserve (BSR) is set at $19.8 million or 16.67% of approximately $118.5 million. Consistent with the Council approved General Fund Reserve Policies (resolution no. 9167, dated June 7, 2022), staff allocated the FY 2022-23 General Fund surplus as illustrated in table below. Also important of note, due to the pending education relief augmentation fund (ERAF) litigation, the 175
Item # C12.
proposed surplus allocation sets aside $1.1 million for ERAF Litigation Contingency, which is based upon County contingency guidance of 30% of $3.8 million FY23 ERAF revenues.
Water Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2023, $30.6 million of charges for services, or 92.5%, of the $33.1 million budgeted has been received. Total revenue received amounts to $31.3 million, or 93.4%, of the $33.5 million budgeted.
Expenditures: For the twelve months ending June 30, 2023, $28.1 million, or 88.8%, of the $31.7 million amended budgeted has been spent.
Water Fund Expenditure Savings: For the fiscal year ended June 30, 2023, the Water Fund realized unaudited revenues of $31.3 million and expenditures of $29.0 million. This resulted in a one-time Water Fund expenditure savings of $2.3 million.
Sewer Maintenance & Operation (M&O) Fund Financial Status (Attachment 3)
Revenues: For the twelve months ending June 30, 2023, $24.7 million of charges for services, or 100.9%, of the $24.5 million budgeted has been received. Total revenue received amounts to $25.3 million, or 102.4%, of the $24.7 million budgeted.
Expenditures: For the twelve months ending June 30, 2023, $17.5 million, or 99.2%, of the $17.6 million amended budgeted has been spent.
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Item # C12.
Sewer Fund Expenditure Savings: For the fiscal year ended June 30, 2023, the Sewer Fund realized unaudited revenues of $25.3 million and expenditures of $17.5 million This resulted in a one-time Sewer Fund expenditure savings of $7.8 million.
Budget Amendment Recommendations
Staff recommends for Council consideration and approval the following budget amendments to align appropriations to actual expenditures incurred, services rendered, and revenues received. The budget appropriation amendment recommendations are summarized below:
a. Increase Police budget from Federal Asset Seizure Fund 263 fund balance by $60,000 due to purchase of the Mobile Emergency Operations Center (MEOC) as budgeted in CP# 3464 Mobile Emergency Operations Center. This is due to the accounting requirement of posting costs within the Federal Asset Seizure Fund 263 versus the CP# 3464. This is not a request for additional budget appropriation.
b. Appropriate the interest earned from Lease Revenue Bond by $33,024 to increase the budget for CP# 3447 Fire Station No. 2 Replacement Project. This action will increase total budget amount by $33,024, increase funding source in CP# 3447 Fire Station with Lease Revenue Bond Proceeds by $853,210 and decrease General Government CIP funding source by $853,210. This is to swap funding source between CP# 3447 and CP# 3488 Community and Senior Center Energy Resilience Project.
c. Increase funding source in CP# 3488 Community and Senior Energy Resilience Project with General Government CIP by $853,210 and decrease Lease Revenue Bond funding source by $853,210. This is to swap funding source between CP# 3447 and CP# 3488 Community and Senior Center Energy Resilience Project, and this action will not change the total budget amount in CP# 3488.
d. Budget carryforward for vehicles of $343,834 to reduce budget in FY2022-23 and re- appropriate in FY2023-24. Due to supply chain inventory shortage, these vehicles could not be purchased in FY2022-23. Authorize an additional $100,000 to the National Auto Fleet Cooperative Agreement blanket purchase order for this vehicle carry-forward
e. Budget carryforward for Economic Development for Innovation District Consultant ($75,000) and Property Asset Management Services ($50,000) to reduce budget in FY2022-23 and re- appropriate in FY2023-24. Due to the unique nature of these services, vendor selection could not be finalized in FY2022-23.
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 FY2022-23 surplus until final litigation resolution, the Council may direct Staff to re-allocate these resources for future use should the matter prevail in the City’s favor.
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Item # C12.
FISCAL IMPACT:
For the fiscal year ended June 30, 2023, the City’s General Fund unaudited surplus of $9.5 million, with revenues of $128.0 million and expenditures of $118.5 million. This result is primarily from one-time revenues and expenditure savings.
California Environmental Quality Act (CEQA):
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 2022-23 Quarterly Financial Status Report for the Quarter Ending June 30, 2023, and
2. Approve budget amendments and
3. Authorize an additional $100,000 to the National Auto Fleet Cooperative Agreement blanket purchase order for vehicle carry-forward.
Attachment(s):
1. FY 2022-2023 General Fund Revenues Report for Fiscal Year-To-Date June 30, 2023
2. FY 2022-2023 General Fund Expenditures by Department June 30, 2023
3. FY 2022-2023 Water and Sewer Funds Financial Status for Fiscal Year-To-Date June 30, 2023
4. Budget Change Form
Check if City Council Approval required. Meeting: September 19, 2023
Requested by: Department Head: Lauren Lai Date: September 19, 2023 Reviewed by: Finance Director: Date: September 19, 2023 Approved by: Acting City Manager: Ned Thomas Date September 19, 2023
Date approved by City Council, if required: Confirmed by:
FI/24786/V Form 30-222 (Rev. 1/92)
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Item # C12.
CITY OF MILPITAS
AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute Amendment No. 1 to the Professional Services Agreement with Liebert Cassidy Whitmore for an Additional Agreement Amount of $200,000.00, Subject to the Annual Appropriation of Funds (Staff Contact: Nick Raisch, Human Resources Director, 408-586-3086) Category: Consent Calendar-Leadership and Support Services Meeting Date: 9/19/2023
Recommendation: Approve and authorize the City Manager to execute Amendment No. 1 to the Professional Services Agreement with Liebert Cassidy Whitmore (“LCW”) for an additional agreement amount of $200,000.00, subject to the annual appropriation of funds.
BACKGROUND:
On April 1, 2023, the City entered into a Professional Services Agreement (the “Agreement”) with Liebert Cassidy Whitmore (“LCW”) in order to provide essential labor relations and other legal services to the City, including but not limited to negotiations, training, advice, investigations, and representation, in the amount of $100,000, set to expire on June 30, 2024.
LCW is a premier labor, education, and employment law firm that specializes in providing services to hundreds of public agencies, educational institutions, and nonprofit organizations across the state of California.
ANALYSIS:
In 2020, the City utilized LCW’s services for labor negotiations with the Milpitas Employees’ Association (MEA).
During FY22-23, staff recognized the need to engage in LCW’s services for the next contract negotiation cycle as the City would benefit from direct, hands-on historical knowledge from 2020’s negotiation.
LCW has also provided other essential legal services related to confidential investigations, and these needs are ongoing. Staff recommends amending the agreement to add an additional $200,000 for ongoing legal services and through June 30, 2026.
POLICY ALTERNATIVE(S):
Alternative 1: Do not approve and authorize the City Manager to execute the amendment with LCW for two years.
Pros: There is no benefit to discontinuing LCW’s services while the City is in active labor negotiations and investigations are still underway.
Cons: The City will not have adequate resources to assist with labor negotiations and investigations.
FISCAL IMPACT:
The first year of this contract will be paid from unanticipated expenditure reserve. The future years are subject to appropriations in the Human Resources and City Manager departmental budgets during the annual operating budget process.
California Environmental Quality Act (CEQA):
Approval of the recommendation is not an activity defined as a “project” under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines 15061(b)(3) and 15378(b)(4) either because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the 179 Item # C13.
environment and/or because the action is financial and/or administrative and does not directly impact the environment.
RECOMMENDATION:
Approve and Authorize the City Manager to Execute Amendment No. 1 to the Professional Services Agreement with Liebert Cassidy Whitmore (“LCW”) for an additional agreement amount of $200,000, subject to the annual appropriation of funds.
Attachment(s):
1. Original LCW Contract
2. Amendment to LCW’s Professional Services Agreement
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1 CITY OF MILPITAS
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of _________________ (“Effective Date”) by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and Liebert Cassidy Whitmore, a corporation with its principal place of business at 135 Main Street, San Francisco, CA 94105 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. City is a publ ic agency of the State of California and is in need of professional services for the following project:
LABOR CONTRACT NEGOTIATIONS AND OTHER LEGAL SERVICES
(hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Services.
Consultant shall provide the City with the services described in the Scope of Servi ces attached hereto as Exhibit A.
2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit B. b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Hundred Thousand Dollars and Zero Cents ($100,000.00).
This amount is to cover all printing and related costs, and the City will not pay any addition al fees for printing expenses. Periodic payments shall be made within thirty (30) days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.
3. Additional Work.
If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be pro cessed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated ch anges in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in DocuSign Envelope ID: 7968FF19-7346-47F4-A98C-471D468064D8 Apr-01-2023
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2 the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
4. Maintenance of Records.
Books, documents, papers, accounting record s, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the Agreement term and for four (4) years from the date of final payment under the Agreement for inspection by City.
5. Term.
The term of this Agreement shall be from April 1, 2023 to June 30, 2024, unless earlier terminated as provided herein. The City reserves the right to review the Consultant’s performance at the end of each year and cancel all or part of the Agreement.
6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable contr ol of the non -performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non -performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performa nce and the efforts being made to resume performance of this Agreement.
7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or remova l of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.
9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreemen t or any rights under or interest in this Agreement without the written consent of the City, which m ay be withheld for any reason. Any DocuSign Envelope ID: 7968FF19-7346-47F4-A98C-471D468064D8 182
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3 attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provision s stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consulta nt may deem appropriate to assist in the performance of services hereunder.
10. Independent Consultant
Consultant is retained as an independent contractor and is not an employee of City . No employee or agent of Consultant shall become an employee of City . The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.
11. Insurance. Consultant 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, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insur ance required therein.
12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the 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 of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any negligent acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and oth er related costs and expenses. Consultant's obligation to ind emnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall b e limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
13. California Labor Code Requirements.
a. Consultant 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 One Thousand Dollars and Zero Cents ($1,000.00) or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant 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 DocuSign Envelope ID: 7968FF19-7346-47F4-A98C-471D468064D8 183
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4 comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants 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 payro ll records (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 Commissioner 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. b. If the services are being performed as part of an appli cable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Depar tment of Industrial Relations.
Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work perfor med 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 Consultant’s sole responsibility to comply with all applicable registration and labor compliance requireme nts. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Cons ultant’s performance of services, including any delay, shall be Con sultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City . Consultant 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 Consultant or any subcontractor.
14. Verification of Employment Eligibility.
By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
15. City Material Requirements. [Reserved]
16. Laws and Venue.
This Agreement 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 Agreement, the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California. 17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given titl e and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work com pleted and/or being abandoned. City shall pay Consultant the reasonable value of services r endered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the DocuSign Envelope ID: 7968FF19-7346-47F4-A98C-471D468064D8 184
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5 Project for which a payment request has not been received, the charge for services performed during such task shall be th e reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions there of which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. c. The C onsultant understands and accepts that at all times; the Agreement is subject to appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of Agreement term. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. City budget decisions are subject to the discretion of the Mayor and City Council. Consultant’s assumption of risk of possible non-appropriation is a part of the c onsideration for the Agreement. This section controls against any and all other provisions of the Agreement.
18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, w ritten reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
19. Organization
Consultant shall assign Morin Jacob as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
20. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described above.
21. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:
CITY:
City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Steven G. McHarris, City Manager
CONSULTANT:
Liebert Cassidy Whitmore
135 Main Street, 7th floor
San Francisco, CA 94105
Attn: Richard Bolanos, Partner
and shall be effective upon receipt thereof.
22. Third Party Rights
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6 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
23. Equal Opportunity Employment.
Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Feder al Constitutions. 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.
24. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to th ose matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.
25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.
26. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
27. Non-Waiver
None of the provisions of this Agree ment shall be considered waived by either party, unless such waiver is specifically specified in writing.
28. Time of Essence
Time is of the essence for each and every provision of this Agreement.
29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
30. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide em ployee working solely for Consultant, to solicit or secure this Agreement.
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7 Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the awar d 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 director, official, 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.
31. Wage Theft Prevention
a. Consultant, and any subconsultant 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 Sta ndards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.
b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS
DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE F IVE (5) YEARS PRIOR TO
EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS
THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,
DECISION OR ORDER, O R, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN
FULLY SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS
CURRENTLY SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT
OR ALTERNATIVE PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY
AND THAT CONSULTANT OR ITS SUBCONSULTANT(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 Consultant or a subconsultant it employs to perform work under this Agreement has violated any applicable wage and hour law, or Consultant learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Consultant 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.
Consultant or its subconsultant(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 Consultant or its subconsultant is subject to a payment or other alternative plan, the Consultant or its subconsultant shall co ntinue 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 "fina l 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.
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8 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 95 035. 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.
[SIGNATURES ON FOLLOWING PAGE]
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9 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MILPITAS
AND LIEBERT CASSIDY WHITMORE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
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:
Nick Raisch, Human Resources Director
LIEBERT CASSIDY WHITMORE
Signature
Name
Title
Date
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Mar-29-2023
Morin Jacob
Apr-01-2023
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10 EXHIBIT A
Scope of Services
The Consultant offers the City a broad range of experienced labor relations and legal services including but not limited to negotiations, training, advice, investigations, and representation. The services offered by the Consultant are generally as follows, subject to the preferences of the City, which can and do bring about modifications to the Consultant’s role.
The Consultants services shall include:
1. Meet with City staff and elected officials prior to commencement of negotiations in order to best understand (and perhaps formulate) the goals and objectives of the City in addressing the potential bargaining issues, and to be made aware of the financial/political limitations upon reaching those goals and objectives.
2. Provide leadership in formulati ng the strategies, which will be employed in meeting the goals and objectives at the bargaining table. (This may include asking that various City negotiation team members or resource personnel prepare budget presentations, detailed cost/revenue analyses or other financial data that may be discussed during negotiations).
3. Administer and/or oversee classification and compensation studies to gather the data necessary to formulate and present the agency’s bargaining objectives and proposals.
4. Upon reque st and as needed, oversee administrative investigations, retain the appropriate outside investigators for the City, and advise the City based on the findings of the investigations.
5. Review and analyze all pertinent charter provisions, codes, ordinances, rules and regulations, and existing memoranda of understanding, in order to verify their impact upon the goals and objectives that are being pursued.
6. Act as principal spokesperson and strategist during the bargaining process.
7. Participate in closed sessions to provide guidance to and receive direction from elected officials.
8. Represent the City at impasse proceedings (including preparation and representation through the impasse process, preparation of press releases, supervising media relations, meeting with elected officials, and making those appearances provided for by the City employee relations ordinance, as requested by the City). The Consultant typically attempts to schedule meetings with various units back to back as to reduce travel time. The Consultant will also work carefully with City staff to ensure that negotiations with multiple units are coordinated to be consistent where necessary but different, where diffe ring issues so require.
Labor Relations Consulting
In addition to conducting negotiations for public employers, the Consultant will continually work with the City’s staff to do their own negotiations, if desired, and provide ongoing advice away from the table. This arrangement can involve all aspects of consultation and related services, including:
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11 4. representation through impasse procedures
5. and giving general advice when problems arise.
These services include:
a. MOU reviews/audits to identify issues for legal compliance, provide suggestions to increase clarity and reduce ambiguity by improv ing contract language, and offer suggestions/alternatives to be considered in contract negotiations.
b. Training on costing labor contracts, compiling demographic data, preparing for impasse processes, and other training programs to develop skills for internal staff. c. Strategy development and advice on key areas including FLSA items, cost restructuring, pension issues, employee benefits, and discipline/appeal processes. Provide advice and consultation on the scope of meet and confer subjects and alternative approaches to manage meet and confer obligations. d. Drafting contract language compliant with legal parameters and consulting on the preparation and presentation of proposals.
Additional Services
As a best practice, the Consultant recommends completing an MOU audit prior to the start of negotiations if the City has not reviewed/updated the MOU for best practices, legal compliance and to ensure the elimination of ambiguous language since the last round of negotiations. An audit ensures that contra ct language accurately reflects changes in the law since the contract was last negotiated [e.g. new state laws regarding sick leave (AB1522), health insurance (ACA), retirement (PEPRA), unlawful discrimination, leave rights (Labor Code Section 230.4, pregnancy disability leave), arbitration and release time for union representatives.] It also ensures that contract language not only complies with state and federal laws, but that it maximizes the City’s opportunity for cost effectiveness. The audit will revea l all the changes the Consultant suggests for legal compliance, to eliminate ambiguities and ensure best practices. The analysis also includes the identification of MOU language/provisions to target during the upcoming negotiations.
Careful preparation all ows the City to set the bargaining agenda, rather than being reactive as well as avoids the inefficiencies of an ad hoc approach where disputes and mistakes often occur. Audits are billed on an hourly basis and can be scheduled whether or not Consultant conducts the negotiations. Any other legal services provided by Consultant per the rate sheet attached.
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12 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will in clude with each invoice a detail ed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials Agreement.
Rate and Service Structure
The Consultant bills in increments of one tenth of an hour. Invoices are payable upon receipt and due within 30 days. Consultant rates reflect the nature of our public sector work and take into consideration the inherent budgetary limitations of our public sector clients.
The Consultant evaluates its rates on an annual basis and occasionally makes modest rate increases. The Consultant understands the need to manage the cost of legal services and frequently work with clients to create budgets and cost strategies that suit them.
The Consultants practice is statewide, and they will share briefs, motions, points and authorities, research memos and opinion letters so that they do not research nuances in the law and issues that other members of the firm have recently worked on.
Pricing offered on a time-and-materials basis would be based on the standard hourly rates listed below:
Staff Rate per Hour
Partner $425.00
Senior Counsel $355.00
Associate $240.00 - 335.00
Labor Relations/Human Resources Consultant $270.00
Paralegals $145.00
E-Discovery Specialists $145.00
Law Clerks $145.00 - $185.00
Expenses
The Consultant utilizes the most up -to-date technology to aid in the delivery of legal services. For example, they utilize Sharefile, a document -sharing portal, for the secure and quick transmission of material. Documents are sent electronically, through Sharefile or email, unless specifically requested otherwise, or when electronic transmission is not an option.
Should the Consultant need to send a fax, these are billed at the rate of $.25 per page for outgoing faxes.
Likewise, if needed copying is cha rged at fifteen cents ($.15) per page. Additional prints, postage and special deliveries (i.e. Fed-Ex, UPS, DHL, messenger service), and other hired deliveries completed at the request of the client or necessary to comply with court or other deadlines will also be billed to the client.
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13 EXHIBIT C
Activity Schedule
[Reserved]
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14 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 t hat 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 signe d 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 Contractor’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 br oad 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 $1,000,000.00 per occurrence. If a general aggregate l imit 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.
___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurre nce” 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 sha ll apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
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15 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.
___ 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):
_X_ 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 reconstruction, 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 Work, including during transit, installation, and testing at the City’s site.
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16 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 shall 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.
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 a nd 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 private information, alteration of electronic information, extortion, and network security.
The policy shall provide coverage for breach res ponse 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:
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17 appointed officials, officers, attorneys, agents employees and vo lunteers 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)
Contractor or Consultant may submit evidence of Builder’s Risk insurance in the form of Cou rse of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.
_X_ Notice of Cancellation, Suspension or Otherwise Voiding Policies:
Each insurance policy required above shall contain or be endorsed to con tain 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 Consultan t 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 endorseme nt 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 wai ver 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
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18 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:
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 id entification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the DocuSign Envelope ID: 7968FF19-7346-47F4-A98C-471D468064D8 198
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19 Contractors Pollution Liability Policy shall not contain a mold ex clusion, 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 Contracto r 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 othe r 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
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 require d above shall contain or be endorsed 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.
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