Milpitas City Council
May 21, 2024

ATTACHMENT E
Agreement for Countywide Household
Hazardous Waste Collection Program Page 23 of 27

EXHIBIT E

INSURANCE REQUIREMENTS FOR

ENVIRONMENTAL SERVICES

CONTRACTS
(Hazardous Waste Disposal, Remediation Services, Environmental Consulting, etc.) Indemnity
The Contractor shall indemnify, defend, and hold harmless the County of Santa Clara (hereinafter "County"), its officers, agents and employees from any third party claim, liability, loss, injury or damage to the extent arising out of, or in connection with, performance of this AGREEMENT by Contractor and/or its agents or employees, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this AGREEMENT to provide the broadest possible coverage for the County. The Contractor shall reimburse the County for all costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation in which the Contractor contests its obligation to indemnify, defend and/or hold harmless the County under this AGREEMENT and does not prevail in that contest.

Insurance
Without limiting the Contractor's indemnification of the County, the Contractor shall provide and maintain at its own expense, during the term of this AGREEMENT, or as may be further required herein, the following insurance coverages and provisions:

A. Evidence of Coverage
Prior to commencement of this AGREEMENT, the Contractor shall provide a Certificate of Insurance certifying that coverage as required herein has been obtained. Individual endorsements executed by the insurance carrier shall accompany the certificate.

This verification of coverage shall be sent to the requesting County department, unless otherwise directed. The Contractor shall not receive a Notice to Proceed with the work under the AGREEMENT until it has obtained all insurance required and such insurance has been approved by the County. This approval of insurance shall neither relieve nor decrease the liability of the Contractor.

B. Qualifying Insurers
All coverages, except surety, shall be issued by companies which hold a current policy holder's alphabetic and financial size category rating of not less than A- V, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by the County's Insurance Manager.

ATTACHMENT E
Agreement for Countywide Household
Hazardous Waste Collection Program Page 24 of 27
Exhibit E (Continued)
C. Notice of Cancellation
Should any of the requested policies be cancelled before the expiration date, notice will be provided in accordance with policy provisions.

D. Insurance Required

1. Commercial General Liability Insurance - for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence - $1,000,000
b. General aggregate - $2,000,000
c. Products/Completed Operations aggregate - $2,000,000 d. Personal Injury - $1,000,000

2. General liability coverage shall include:
a. Premises and Operations
b. Products/Completed
c. Personal Injury liability
d. Severability of interest

3. General liability coverage shall include the following endorsement, a copy of which shall be provided to the County:

Additional Insured Endorsement, (Commercial General Liability Additional Insured provided pursuant to Additional Insured Endorsement #1), which shall read:
“County of Santa Clara, and members of the Board of
Supervisors of the County of Santa Clara, and the officers, agents, and employees of the County of Santa Clara,
individually and collectively, as additional insureds provided pursuant to Additional Insured Endorsement Form #1.”
Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided

Agreement for Countywide Household
Hazardous Waste Collection Program Page 25 of 27
Exhibit E (Continued)
under this policy. Public Entities may also be added to the Additional Insured Endorsement Form #1 as applicable by way of insurance addendum, and the contractor shall be notified by the contracting department of these requirements.

4. Automobile Liability Insurance
For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles. Coverage shall include Environmental Impairment Liability Endorsement MCS90 for contracts requiring the transportation of hazardous materials/wastes.

5. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all-states coverage.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.

6. Contractors Pollution Liability Insurance
Coverage shall provide a minimum of not less than five million dollars ($5,000,000) per occurrence and aggregate for bodily injury, personal injury, property damage and cleanup costs both on and offsite.

7. Professional Errors and Omissions Liability Insurance (required for contractors providing professional services, such as through a professional engineer, registered geologist, etc.)
a. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim/aggregate.
b. If coverage contains a deductible or self-retention, it shall be reviewed and approved by the County’s Insurance Manager prior to contract execution.
c. Coverage as required herein shall be maintained for a minimum of two years following termination or completion of this AGREEMENT.

ATTACHMENT E
Agreement for Countywide Household
Hazardous Waste Collection Program Page 26 of 27
Exhibit E (Continued)

8. Claims Made Coverage
If coverage is written on a claims made basis, the Certificate of Insurance shall clearly state so. In addition to coverage requirements above, such policy shall provide that:
a. Policy retroactive date coincides with or precedes the Consultant's start of work (including subsequent policies purchased as renewals or replacements).
b. Policy allows for reporting of circumstances or incidents that might give rise to future claims. If coverage terminated Run-Off (Tail) coverage will be purchased for three (3) years following termination.

E. Special Provisions
The following provisions shall apply to this AGREEMENT:

1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the Contractor and any approval of said insurance by the County or its insurance consultant(s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this AGREEMENT, including but not limited to the provisions concerning indemnification.

2. The County acknowledges that some insurance requirements contained in this AGREEMENT may be fulfilled by self-insurance on the part of the Contractor. However, this shall not in any way limit liabilities assumed by the Contractor under this AGREEMENT. Any self-insurance shall be approved in writing by the County upon satisfactory evidence of financial capacity. Contractors obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance programs or self-insurance retentions.

3. Should any of the work under this AGREEMENT be sublet, the Contractor shall require each of its subcontractors of any tier to carry the aforementioned coverages.

4. The County reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above.

ATTACHMENT E
Agreement for Countywide Household
Hazardous Waste Collection Program Page 27 of 27
Exhibit E (Continued)
F. Fidelity Bonds (Required only if contractor will be receiving advanced funds or payments)
Before receiving compensation under this AGREEMENT, Contractor will furnish County with evidence that all officials, employees, and agents handling or having access to funds received or disbursed under this AGREEMENT, or authorized to sign or countersign checks, are covered by a BLANKET FIDELITY BOND in an amount of AT LEAST fifteen percent (15%) of the maximum financial obligation of the County cited herein. If such bond is canceled or reduced, Contractor will notify County immediately, and County may withhold further payment to Contractor until proper coverage has been obtained. Failure to give such notice may be cause for termination of this AGREEMENT, at the option of County.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve a Professional Service Agreement with Backflow Prevention Specialists, Inc. for the Backflow Hazard Assessment Survey (Staff Contact:

Christian Di Renzo, Public Works Director, 408-586-2602; and Michael Silveira, City Engineer, 408-586-3303)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 5/21/2024
Recommendation: Approve and authorize the City Manager to execute a Professional Service Agreement with Backflow Prevention Specialists, Inc. in the amount of $121,394.00 for the Backflow Hazard Assessment Survey.

BACKGROUND:

Cross Connection Control Program, Project No. 7140 (“Project”) is in the adopted 2025-2029 Capital Improvement Program. The City of Milpitas (City) owns, maintains and operates a public drinking water system (System) that distributes potable water to customers through over 16,000 service connections.

Approximately 2,200 of these services, primarily those serving commercial, industrial, fire and irrigation customers, are equipped with backflow prevention assemblies (BPA) to safeguard the System from potential backflow of contaminants and pollutants, as required by Title 17 and Title 22 of the State Water Resources Control Board (SWRCB) California Code of Regulations (CCR). To comply with the regulations and ensure the System and its customers are safeguarded from backflows into the System, the City administers the Cross-Connection Control Program (Program). Through the City’s Program, water customers with BPAs are notified annually to have a certified backflow tester test their BPAs for proper functionality and to make any repairs or replacements if the assembly fails, as required by the CCRs. Compliance with the CCRs is defined by all 2,200 BPAs having a pass test by December 31st of each calendar year.

Because BPAs vary by the level of protection they provide, a fundamental component of the Program is for the City to ensure the type of BPA(s) for any given service is commensurate with the type of hazard(s) present.

This is accomplished by performing periodic Hazard Assessment Surveys (Survey).

The key regulations and assessments for the City on how and when to perform a Survey are:
• Regulatory requirements: Pursuant to Title 17 of the CCR (Article 2, Section 7604), the type of backflow protection shall be commensurate with the degree of hazard that exists on the costumer’s premises.
• SWRCB Sanitary Surveys: In November of 2022, SWRCB performed a Sanitary Survey of the City System. SWRCB identified improvement measures for the City to address, including the need to bolster the City Program. Staff developed a plan in response to SWRCB Sanitary Survey findings, which outlined steps the City will take to address the Program needs, notably, to conduct a City-wide Survey.
• SWRCB Cross-Connection Control Policy Handbook (CCCPH): The CCCPH was adopted by SWRCB on December 19th, 2023 and establishes enforceable standards and principles, which apply to all Public Water Systems in California. Pursuant to the CCCPH Article 1, section 3.1.4, Public Water Systems are required to submit a Cross-Connection Control Plan (Plan) by July 1, 2025 and perform an initial hazard assessment survey. The CCCPH requires the City to identify any non-compliant BPAs or services without BPAs and outline a strategy in the Plan to bring these sites into compliance.

Furthermore, the City is required to perform periodic follow-up Surveys per the criteria listed in the CCCPH Article 2, section 3.2.1(e).
•

ANALYSIS:

To identify the total number of services requiring a Survey, Staff evaluated commercial, industrial, fire and irrigation water services and categorized each service into one of four groups, based on the type of the existing BPA:

Grouping Backflow Type Description
1 Registered BPA is
Reduced Pressure
Principle (RP) or
must be upgraded to
RP
Water services that are equipped with “Reduced Pressure Principal” (RP) type of BPA provide the System with the highest level of protection. Services that have a known hazard for which an RP BPA is required pursuant to Title 17 of the CCR Article 2, section 7604, or services already equipped with a verified RP BPA were excluded from the total amount of services requiring a hazard assessment. 2 Registered BPA is
Non-RP and Non-DC
Services equipped with a BPA that is neither a RP or Double Check Valve (DC) BPA are included in the Survey to evaluate whether an upgrade to an RP or a DC BPA is warranted.
3 Registered BPA is
DC
Services equipped with a DC are included in the Survey to evaluate if an upgrade to RP is warranted.
4 Service has an
unknown BPA type
or may have an
unregistered BPA
Services with an unknown BPA type or services that may have an unregistered BPA are included in the Survey and if determined the BPA is not a RP, the service must be included in a Survey.

After an evaluation by staff using the criteria above, a total of 406 services were identified as needing a hazard assessment survey. The selected vendor will perform a Survey for each service to determine the degree of hazard and make recommendations if any, in accordance with the Article 2 of the CCCPH. The Survey is not only critical in the City’s efforts to safeguard the System and its customers, but also satisfies the mandates set forth by SWRCB, in both the 2022 Sanitary Survey and in the CCCPH. Additionally, the results of the Survey will serve as the framework of the Plan, which the City must submit to SWRCB by July 1st, 2025.

Staff released a Request for Proposals (RFP) Project ID: 2022-REQ-683 for Backflow Hazard Assessment Survey on November 29, 2023. The RFP was advertised through the City procurement platform, OpenGov Procurement, with a proposal due date of January 4, 2024; no proposals were received. As authorized by City Muni-Code I-2-3.08(f) and by the City Purchasing Agent, staff went to the open market to seek out proposals from qualified vendors and negotiated a scope of services with Backflow Prevention Specialists, Inc. for a notto-exceed fee of $121,394.00, which is considered reasonable for the service to be rendered for this work.

POLICY ALTERNATIVE(S):

Alternative: Not approving the professional service agreement with Backflow Prevention Specialists, Inc.

Pros: None.

Cons: Pursuant to the SWRCB CCCPH (Article 2, section 3.2.1), the City must perform an initial Hazard Assessment Survey. Failure to comply may result in issuance of non-compliance enforcement or other corrective actions against the City.

FISCAL IMPACT:

There is sufficient funding available in the Cross-Connection Control Program, Capital Improvement Project No. 7140, which is funded through Water Capital Surcharge Fund. Funding source comes from water capital surcharge fees. As of May 14, 2024, the balance in CIP 7140 is $750,000.

Available Project Budget as of April 30, 2024 $750,000
Professional Service Agreement ($121,394)
Remaining Project Budget $628,606

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

By the definition provided in the California Environmental Quality Act (CEQA) Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA as this action has no potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

RECOMMENDATION:

Approve and authorize the City Manager to execute a Professional Service Agreement with Backflow Prevention Specialists, Inc. in the amount of $121,394.00 for the Backflow Hazard Assessment Survey.

ATTACHMENT(S):

Professional Services Agreement with Backflow Prevention Specialists, Inc.

38077.00180\29167975.12 C2
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 Backflow Prevention Specialists, Inc., a California stock corporation with its principal place of business at 1131 Elko Drive, Sunnyvale, CA 94089 (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 public agency of the State of California and is in need of professional services for the following project:

Backflow Hazzard Assessment Survey
(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 Services 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 Twenty One Thousand Three Hundred Ninety Four Dollars and Zero Cents ($121,394.00). This amount is to cover all printing and related costs, and the City will not pay any additional 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 processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes 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

38077.00180\29167975.12 C2
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 records, 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. Time of Performance.

Consultant shall perform its services in a prompt and timely manner and shall commence performance upon the Effective Date. Consultant shall complete the services required hereunder within three hundred sixty-five (365) calendar days.

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 control 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 performance 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 removal 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 Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute

38077.00180\29167975.12 C2
3 grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant 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 insurance 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 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 other related costs and expenses. Consultant's obligation to indemnify 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 be 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 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 payroll

38077.00180\29167975.12 C2
4 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 applicable “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 Department 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 performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’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 title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the 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

38077.00180\29167975.12 C2
5 costs other than the charges or portions thereof 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 Consultant 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 consideration 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, written 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 Benjamin Bennett 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: City Manager
CONSULTANT:

Backflow Prevention Specialists, Inc.
1131 Elko Drive
Sunnyvale, CA 94089
Attn: Benjamin Bennett
and shall be effective upon receipt thereof.

22. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

38077.00180\29167975.12 C2
6 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 Federal 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 those 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 Agreement 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 employee working solely for Consultant, to solicit or secure this Agreement. 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 award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service

38077.00180\29167975.12 C2
7 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 Standards 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 FIVE (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, OR, 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 continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.
d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.
e. Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.
f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other

38077.00180\29167975.12 C2
8 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]

38077.00180\29167975.12 C2
9 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF MILPITAS
AND BACKFLOW PREVENTION SPECIALISTS, INC.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

Ned Thomas, City Manager
Date
Approved As To Form:

Michael Mutalipassi, City Attorney
Approved:

Luz Cofresi-Howe, Finance Director/ Risk Manager

Approved As To Content:

Christian Di Renzo, Public Works Director

BACKFLOW PREVENTION SPECIALISTS,
INC.

Signature
Name
Title
Date

38077.00180\29167975.12 C2
10 EXHIBIT A
Scope of Services
Consultant will provide a CA-NV AWWA Certified Cross-Connection Control Specialist to provide services to City to satisfy the hazard assessment requirements for operation and maintenance of a potable water system pursuant to the rules of the State of California and the City of Milpitas.

Item Description Remark
1 Project Site: City of Milpitas- 406 service meters
at 303 various locations.

This SOW is for work to be performed at the
project site as indicated.
2 Consultant will provide the personnel and work
required to assist the OWNER with complying
with the rules and requirements of the California
State Water Resources Control Board’s
(CSWRCB) Cross-Connection Control Policy
Handbook (CCCPH). Specifically, Consultant
will assist with conducting cross-connection
surveys, providing documentation of the survey
results to protect the public water supply from
contamination occurring through backflow.

Disclaimer:

Codes, laws, statutes and regulations can
change without prior notice to the public. This
SOW is based upon the current rules and
regulations provided by the CALIFORNIA

STATE WATER RESOURCES CONTROL
BOARD’S CROSS-CONNECTION

CONTROL POLICY HANDBOOK JULY
1,2024.
3 Conduct kickoff and monthly meetings to review
project status, provide internal quality assurance
and quality control, and provide review of
documents prior to submittal.
4 Provide City with detailed schedule of the project
to be reviewed, revised, and updated.
5 Coordinate with the City for access to City tablet
and records pertaining to the project.

38077.00180\29167975.12 C2
11 6 Provide California-Nevada American Water
Works Association (CA-NV AWWA) Certified
Cross-Connection Control Specialists to conduct
cross-connection hazard assessments per Article 2
Section 3.2.1 of the CCCPH and provide reports
to the City.

Hazard assessments shall include consideration
of the following:
(1) The existence of cross-connections;
(2) the type and use of materials handled and
present, or likely to be,on the user premises;
(3) the degree of piping system complexity and
accessibility;
(4) access to auxiliary water supplies, pumping
systems, or pressure systems;
(5) distribution system conditions that increase
the likelihood of a backflow event (e.g.,
hydraulic gradient differences impacted by
main breaks and high water demand situations,
multiple service connections that may result in
flow-through conditions, etc.);
(6) user premises accessibility;
(7) any previous backflow incidents on the user
premises;
(8) and the requirements and information
provided in the CCCPH.
7 Provide a draft and a final report consisting of a
summary of all inspection results and findings and
corrective recommendations for City review.

Outside of Project Scope
Item Description Remark
1 Changes to the current rules and regulations Any changes to work must be submitted as a change order
2 Additional inspections or Cross-Connection
inspections which were not identified in the
original scope of work.

38077.00180\29167975.12 C2
12 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed 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 Sheet
Item Frequency Cost
Regular Time Hourly Rate (Mon-Fri 8am-5pm) As
Required
$260.00/Hour
Overtime Hourly Rate
(Mon-Fri 5am-8am & 5pm-8pm or Sat 8am-5p)
As
Required
$390.00/Hour
Double Time Hourly Rate
(Mon-Fri 8pm-5am, Sat 12am-8am, Sat 5pm-8pm or Sunday 8am-5pm) As
Required
$520.00/Hour
Emergency Calls: all travel & on-site time will be billed at $520.00/hour with a 4-hour minimum charge
As
Required
$520.00/Hour
Contract Price
Description Hours Cost
1 Provide California-Nevada American Water
Works Association (CA-NV AWWA) Certified
Cross-Connection Control Specialists to conduct
cross-connection hazard assessments per Article 2
Section 3.2.1 of the CCPH and provide reports to
the Water Supplier
406 $105,560.00
2 Additional Services as Needed (15%) - $15,834.00
Overall Total $121,394.00
Pricing is based upon work being performed during regular time hours • Non-Travel expenses will be billed at cost plus 20%
• Travel Expenses:
o Outside of Project Site:
▪ City agrees to pay transportation, meals, lodging, and all other costs of any necessary off-site (outside the project site) travel by Consultant’s personnel. City will also be charged the hourly rate for the time Consultant’s personnel spend travelling. These expenses will be billed at cost.
o Out of Town Travel:
▪ Out of town travel includes travel to/from City’s project site where the project is located 100 miles or more from the Consultant’s main office in Sunnyvale, CA 94089. City agrees to pay transportation, meals, lodging, and all other costs of any necessary travel by Consultant’s personnel travel to/from City’s project site. City

38077.00180\29167975.12 C2
13 will also be charged the hourly rate for the time Consultant’s personnel spend travelling. These expenses will be billed at actual cost.

Additional services shall include any service not specifically listed above and agreed by the City and the Consultant. Compensation for additional services shall be by a mutually accepted fixed fee, or on an hourly basis, computed at the actual hourly rates listed in the Rate Sheet above. The Consultant shall obtain City written approval prior to performing any work.

Invoice shall include: description of the work and deliverables, all fee(s), costs, expenses, and other charges claimed with respect to such work and deliverables, and the statement of work number.

38077.00180\29167975.12 C2
14 EXHIBIT C
Activity Schedule
Item Description Deliverable Delivery
Mode
Responsibility Delivery Due
Date
1 Project kickoff
workshop with City
staff.

Meeting agenda and
minutes, kickoff workshop
presentation materials,
project schedule (updated
monthly), proof of
certification
Electronic Consultant Within 2 weeks
of receiving
notice to
proceed
2 Conduct monthly
meetings to review
project status, provide
internal quality
control, and provide
review of documents
prior to submittal.

Meeting agendas and
minutes, monthly status
reports, invoices, kickoff
workshop presentation
materials, project schedule
(updated monthly)
Electronic Consultant Monthly
3 Provide City with
detailed schedule of
the project to be
reviewed, revised, and
updated
Project Schedule Electronic Consultant Within 2 weeks
of initial
kickoff meeting
4 Coordinate with the
City for access to City
records pertaining to
the project
Access to City records Electronic Consultant/City Within 2 weeks of initial
kickoff meeting
5 Obtain electronic
tablet from City and
coordinate trainings
with City staff
Electronic tablet and
training
TBD Consultant/City Within 2 weeks
of initial
kickoff meeting
6 Conduct Hazard
Assessment
Inspections
Hazard assessment reports Electronic Consultant Within 2 weeks of completion
of Phases 4 & 5
7 Provide a draft report
consisting of a
summary of all
inspection results and
findings and corrective
recommendations for
City review.

Draft hazard assessment
summary report
Electronic Consultant Within 6 weeks
of completion
of Phase 6
8 Provide a final report
consisting of a
summary of all
inspection results and
findings and corrective
recommendations.

Final hazard assessment
summary report
Electronic
& Hard
Copy
Consultant Within 2 weeks
of completion
of Phase 7

38077.00180\29167975.12 C2
15 EXHIBIT D

INSURANCE REQUIREMENTS
Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor’s or Consultant’s Agreement.

Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant, its agents, representatives, employees or subcontractors.

Contractor or Consultant shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements.

Contractor or Consultant shall furnish City with copies of original endorsements affecting coverage required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require 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 broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 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.
___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:
_X_ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage. ___ 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 limit for bodily injury and property damage.

38077.00180\29167975.12 C2
16 ___ 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.

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.

38077.00180\29167975.12 C2
17 Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor or Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:
____ Bid Bond
____ Performance Bond
____ Payment Bond
The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:
_X_ Additional Insured Status and Primary/Non-Contributory Language:

Contractor’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its elected and appointed officials, officers, attorneys, agents employees and volunteers as additional insureds under such policies using Insurance Services Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.

The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
___ Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)
Contractor or Consultant may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear. _X_ Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

38077.00180\29167975.12 C2
18 _X_ Waiver of Subrogation:

Contractor or Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor or Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.
___ Completed Operations
For Construction Agreements, Contractor shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Contractor fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor.

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS
Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full-certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

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.

38077.00180\29167975.12 C2
19 2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Contractor or Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to the extent they apply to the scope of the subsubcontractor’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 required 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:

38077.00180\29167975.12 C2
20 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.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Consider Fee Waiver Requests from the Samuel Ayer High School Alumni Association, Rotary Club of Milpitas, and LEAD Filipino, and a Donation to the Sunnyhills Neighborhood Association (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408-586-3409) Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 5/21/2024
Recommendation (1) Approve a fee waiver of $1,500.00 for the Samuel Ayer High School 24th Annual Reunion at Murphy Park on September 21, 2024; (2) Approve a fee waiver of $522.50 for the Rotary Club of Milpitas Fundraiser “A Rose for You” on May 19, 2024; (3) Approve a fee waiver of $93.00 for the LEAD Filipino Yoga event at Delano Manongs Park Filed on June 9, 2024; and (4) Approve a donation of $500.00 for the Sunnyhills Neighborhood Association Milpitas Juneteenth 2024 event at Sunnyhills Albert Augustine, Jr. Memorial Park on June 15, 2024.

BACKGROUND:

On April 17, 2024, staff received a Donation and Fee Waiver/Reduction Policy request from the Samuel Ayer High School Alumni Association for their 24th Annual All Class Reunion Picnic on Saturday, September 21, 2024, at Murphy Park. The request is for a $1,500 fee waiver for the Murphy Park Open Space fees.

On May 8, 2024, staff received a Donation and Fee Waiver/Reduction Policy request from the Sunnyhills Neighborhood Association for their Milpitas Juneteenth 2024 event at Sunnyhills Albert Augustine Jr. Memorial Park on June 15, 2024. The request is for a $500 donation for event equipment costs.

On May 10, 2024, staff received a Donation and Fee Waiver/Reduction Policy request from the Milpitas Rotary Club for their A Rose for You Fundraiser on Sunday, May 19, 2024, at the Milpitas Senior Center. The request is for a $522.50 fee waiver for the hourly rental fees.

On May 10, 2024, staff received a Donation and Fee Waiver/Reduction Policy request from LEAD Filipino for their Yoga in the Park event on Sunday, June 9, 2024, at Delano Manongs Park Field. The request is for a $93 fee waiver for the hourly rental fees.

ANALYSIS:

Four Donation and Fee Waiver/Reduction request applications were received by the Recreation and Community Services Department. Applications included three (3) requests for fee waivers and one (1) request for a donation.

Fee Waiver Requests
Samuel Ayer High School Alumni Association submitted the required applications and documentation for the 24th Annual All Class Reunion Picnic:
- Indoor Space Rental Application for Milpitas Community Center Auditorium - City Council Donation and Fee Waiver/Reduction Policy request - Non-profit status letter
Samuel Ayer High School Alumni Association is requesting the City Council waive eligible fees for the Open Space fee for Murphy Park in the amount of $1,500. Fees ineligible for waiver include the rental application fee

of $30 and refundable security/damage deposit of $1,000. Refundable security/damage deposits are refunded within 30 days of the rental.

The Rotary Club of Milpitas submitted the required applications and documentation for the A Rose for You Fundraiser:
- Indoor Space Rental Application for Milpitas Community Center Auditorium - City Council Donation and Fee Waiver/Reduction Policy request - Non-profit status letter
The Rotary Club of Milpitas is requesting the City Council waive eligible fees for the hourly rental rate for the Milpitas Senior Center Community Room in the amount of $522.50. Fees ineligible for waiver include the rental application fee of $30 and refundable security/damage deposit of $1,000. Refundable security/damage deposits are refunded within 30 days of the rental.

LEAD Filipino submitted the required applications and documentation for the Yoga Event:
- Outdoor Space Rental Application for Delano Manongs Park Field - City Council Donation and Fee Waiver/Reduction Policy request - Non-profit status letter
LEAD Filipino is requesting that the City Council waive eligible fees for the hourly rental rate for the field at Delano Manongs Park in the amount of $93. Fees ineligible for waiver include the rental application fee of $30 and refundable security/damage deposit of $750. Refundable security/damage deposits are refunded within 30 days of the rental.

Donation
The Sunnyhills Neighborhood Association submitted their required application and documentation for their Milpitas Juneteenth 2024 event:
- City Council Donation and Fee Waiver/Reduction Policy request - Non-profit status letter
Milpitas City Council adopted an updated “City Council Donation and Fee Waiver/Reduction Policy” on June 21, 2022. Per the policy, eligible organizations can request City fees to be waived up to $1,500 or a donation amount up to $500 to be granted upon request. Eligible organizations are defined as “a non-profit organization as described by the Internal Revenue Section such as 501(c)(3) or an intergovernmental agency; Nondiscriminatory, and non-political in nature.” Fee Waiver or Donation requests for events must provide a community benefit within the City of Milpitas proper. Applying organizations must provide proof of non-profit status from the federal Internal Revenue Service or the state Franchise Tax Board.

As required, Samuel Ayer High School Alumni Association,the Sunnyhills Neighborhood Association, LEAD Filipino, and The Rotary Club of Milpitas have provided copies of their respective determination letters from the Internal Revenue Service stating they are tax-exempt organizations. All applicants meet the requirements as outlined in the Council-adopted Donation and Fee Waiver/Reduction Policy.

POLICY ALTERNATIVE(S):

Alternative: Do not approve any one or combination of received fee waivers and donation applications as requested.

Pros: The City’s General Fund will not incur the costs of the fees waived.

Con: Denial of the request may not allow the non-profit organization to hold their events.

Reason not recommended: This request is consistent with the Council-approved Policy.

FISCAL IMPACT:
$25,000 was approved and included in the FY 2023-24 City budget for City Council’s Unallocated Community Promotions with a current balance of $18,355. If these requests are approved by the City Council, then $15,739.50 would remain in that line item of the current year’s budget.

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) Approve a fee waiver of $1,500.00 for the Samuel Ayer High School 24th Annual Reunion at Murphy Park on September 21, 2024; (2) Approve a fee waiver of $522.50 for the Rotary Club of Milpitas Fundraiser “A Rose for You” on May 19, 2024; (3) Approve a fee waiver of $93.00 for the LEAD Filipino Yoga event at Delano Manongs Park Filed on June 9, 2024; and (4) Approve a donation of $500.00 for the Sunnyhills Neighborhood Association Milpitas Juneteenth 2024 event at Sunnyhills Albert Augustine, Jr. Memorial Park on June 15, 2024.

Attachment(s):
(a) Samuel Ayer High School Alumni Association Application (b) Samuel Ayer High School Alumni Association Internal Revenue Service (IRS) non-profit letter (c) Rotary Club of Milpitas Application
(d) Rotary Club of Milpitas Internal Revenue Service (IRS) non-profit letter (e) LEAD Filipino Application
(f) LEAD Filipino Internal Revenue Services (IRS) non-profit letter (g) Sunnyhills Neighborhood Association Application
(h) Sunnyhills Neighborhood Association Internal Revenue Service (IRS) non-profit letter

Policy will result in the organization being denied
for funding and/or fee waiver in the future.

Draw your signature into the box below.

Letter 947 (Rev. 2-2020)
Catalog Number 35152P
Department of the Treasury
Internal Revenue Service
Tax Exempt and Government Entities
P.O. Box 2508
Cincinnati, OH 45201

SAMUEL AYER HIGH SCHOOL ALUMNI

ASSOCIATION

C/O JACOB P ABEYTIA
1975 OLD CALAVERAS RD
MILPITAS, CA 95035
Date:
04/19/2023
Employer ID number:

Person to contact:

Name: Customer Service
ID number: 31954
Telephone: 877-829-5500
Accounting period ending:

December 31
Public charity status:
509(a)(2)
Form 990 / 990-EZ / 990-N required:

Yes
Effective date of exemption:

December 9, 2022
Contribution deductibility:

Yes
Addendum applies:

No
DLN:
26053503003983
Dear Applicant:

We're pleased to tell you we determined you're exempt from federal income tax under Internal Revenue Code (IRC) Section 501(c)(3). Donors can deduct contributions they make to you under IRC Section 170. You're also qualified to receive tax deductible bequests, devises, transfers or gifts under Section 2055, 2106, or 2522. This letter could help resolve questions on your exempt status. Please keep it for your records.

Organizations exempt under IRC Section 501(c)(3) are further classified as either public charities or private foundations. We determined you're a public charity under the IRC Section listed at the top of this letter.

If we indicated at the top of this letter that you're required to file Form 990/990-EZ/990-N, our records show you're required to file an annual information return (Form 990 or Form 990-EZ) or electronic notice (Form 990-N, the e-Postcard). If you don't file a required return or notice for three consecutive years, your exempt status will be automatically revoked.

If we indicated at the top of this letter that an addendum applies, the enclosed addendum is an integral part of this letter.

For important information about your responsibilities as a tax-exempt organization, go to www.irs.gov/charities.

Enter "4221-PC" in the search bar to view Publication 4221-PC, Compliance Guide for 501(c)(3) Public Charities, which describes your recordkeeping, reporting, and disclosure requirements.

Sincerely,
Stephen A. Martin
Director, Exempt Organizations
Rulings and Agreements





 





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9/13/2022
2348794413
2119575

SUNNYHILLS NEIGHBORHOOD ASSOCIATION
f.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve the Community Heroes Program City Council Policy (Staff Contact:

Renee Lorentzen, Recreation and Community Services Director, 408-586-3409) Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 5/21/2024
Recommendation: Approve the Community Heroes City Council Policy BACKGROUND:

At the January 30, 2024, City Council Budget Workshop, the City Council approved the development of a program policy that provides City Councilmembers the opportunity to give, annually, special recognition to individuals, groups, or organizations that have made significant contributions to the Milpitas community, in support of the City Council’s goals and priority areas.

This policy establishes the criteria and procedures for a Milpitas Community Heroes Program to recognize individuals, groups, or organizations, through special certificates of recognition given by individual members of the Milpitas City Council on an annual basis.

ANALYSIS:

The proposed policy provides a framework for Milpitas City Councilmembers to recognize, annually, individuals, groups, or organizations, through special certificates of recognition given by individual members of the Milpitas City Council.

Policy Overview
Under the draft Community Heroes program policy, certificates of recognition may be issued to individuals, groups or organizations within the Milpitas community for noteworthy achievements (individual or group), exceptional contributions to the Milpitas community, or significant commemorative events or occasions held within the jurisdiction of Milpitas on an annual basis.

Each member of the City Council may nominate one (1) individual, group, or organization for a Community Hero certificate per fiscal year. Nominations should align with the nomination criteria outlined in the new policy but are otherwise at the sole discretion of the nominating Councilmember.

Community Heroes Program Certificates of Recognition will be presented annually at a City Council meeting in June, during Presentations. Each Councilmember will sign their own nominee’s certificate. Following the Presentations, City Council will call a 20-minute break to celebrate with the nominees.

Nomination Criteria
The Community Heroes Program acknowledges and celebrates noteworthy achievements (individual or group) contributions to the community, or a significant commemorative event or occasion within the Milpitas community, such as but not limited to:
• Individuals, community groups, or organization whose volunteer efforts and/or philanthropic works have benefitted the Milpitas community and/or Milpitas residents; • Individual or club academic achievement at the local, regional or national level (i.e., school valedictorian, placement at regional or national competitions or exhibitions);

• Individuals, community groups, or organizations for winning local, regional or national competitions or awards; or
• Local organizations or businesses for milestone commemorative events or occasions in Milpitas.

Procedure
Nominations for recognition under the Milpitas Community Heroes Program should be submitted through a virtual form link, embedded in the policy, to the Recreation and Community Services Director or their designee, at least twenty (20) business days before the first City Council meeting in June. Nominations for recognition under the Milpitas Community Heroes Program must include the following information for both the recognition certificates and related press releases, including but not limited to:
• Community Hero nominee name as it will appear on the certificate; • Information on why the individual, community group, or organization is being nominated in alignment with the criteria outlined in this policy;
• Brief background or historical information on the individual, community group, or organization; and • Contact information for the individual, group, or organization being nominated for recognition as a Community Hero.

The City Manager’s Office or their designee will prepare certificates of recognition unique to the Community Heros program for each individual, group, or organization nominated as a Community Hero and coordinate with the City Manager’s Office for the respective Councilmember signatures.

The Public Information Officer will prepare and distribute a Press Release on the collective Community Heroes nominees. If the certificate or recognition is not being presented at the designated Council meeting due to Councilmember absence or nominee absence, the certificate will be mailed.

FISCAL IMPACT:

Minor costs associated with the Community Heroes reception will be absorbed by the City Manager’s Budget and are estimated at an amount not to exceed $1,500.

CALIFORNIA ENVIRONMENTAL QUALITY ACT:

The action is continuing administrative or maintenance activity and is not a project pursuant to Cal. Code Regs., tit. 14, § 15378.

RECOMMENDATION:

Approve and adopt a City of Milpitas Community Heroes Program City Council Policy.

ATTACHMENT:
(a) Draft Community Heroes Program City Council Policy
(b) Draft Community Heroes Certificate

CITY OF MILPITAS
Revision Date
Original 5/21/2024

CITY COUNCIL POLICY

1. PURPOSE

1.1. This policy establishes the criteria and procedures for a Milpitas Community Heroes Program to recognize individuals, groups, or organizations, on an annual basis, through special certificates of recognition given by individual members of the Milpitas City Council.

1.2. The Community Heroes Program gives special recognition to individuals, groups, or organizations that have made significant contributions to the Milpitas community, in support of the City Council’s goals and priority areas.

2. POLICY

2.1. Under the Community Heroes program, certificates of recognition may be issued to individuals, groups or organizations within the Milpitas community for noteworthy achievements (individual or group), exceptional contributions to the Milpitas community, or significant commemorative events or occasions held within the jurisdiction of Milpitas.

2.2. Each member of the City Council may nominate one (1) individual, group, or organization for a Community Hero certificate per fiscal year. Nominations should align with the nomination criteria outlined in this policy and are at the sole discretion of the nominating Councilmember.

2.3. Councilmembers who nominate the same individual, group, organization must both agree to jointly recognize the Community Hero. If there is no consensus, the Councilmember who submitted their nomination first will recognize said Community Hero, and the other Councilmember(s) may nominate a different Community Hero.

2.4. Under the Community Heroes Program, certificates of recognition will be presented annually at a City Council meeting in June, during Presentations. City Councilmembers will sign their nominee’s certificate. Following the Presentations, City Council will call a 20-minute break to celebrate with the nominees.

2.5. Community Heroes certificates shall be unique to the Community Heroes program and shall only be issued pursuant to this policy.

2.6. Nomination Criteria

2.6.1. The Community Heroes Program acknowledges and celebrates the noteworthy achievements (individual or group), contributions to the community, or a significant commemorative event or occasion within the Milpitas community, such as but not limited to:

Policy No:

Click or tap here to enter
text.

CITY COUNCIL COMMUNITY HEROES

PROGRAM POLICY
Effective Date:
5/21/2024
Revision No:

NA
Policy Administrator:

Recreation and Community Services
Next Review Due:

Click or tap to enter a
date.

Related Policies and
Procedures:

None
Approved by:

Click or tap here to enter text.

Council meeting date, agenda item #, and
vote
Date Approved:
5/21/2024

CITY OF MILPITAS
Revision Date
COMMUNITY HEROES PROGRAM POLICY / POLICY #

2.6.1.1 Individuals, community groups, or organization whose volunteer efforts and/or philanthropic works have benefitted the Milpitas community and/or Milpitas residents;

2.6.1.2 Individual or club academic achievement at the local, regional or national level (i.e., school valedictorian, placement at regional or national competitions or exhibitions);

2.6.1.3 Individuals, community groups, or organizations for winning local, regional or national competitions or awards; or

2.6.1.4 Local organizations or businesses for milestone commemorative events or occasions in Milpitas.

3. DEFINITIONS
NA

4. PROCEDURE

4.1. Nominations for recognition under the Milpitas Community Heroes Program should be submitted VIRTUALLY HERE to the Recreation and Community Services Director or their designee, at least twenty (20) business days before the first City Council meeting in June.

4.2. Nominations for recognition under the Milpitas Community Heroes Program must include the following information for both the recognition certificates and related press releases, including but not limited to:

4.2.1. Community Hero nominee name as it will appear on the certificate;

4.2.2. Information on why the individual, community group, or organization is being nominated in alignment with the criteria outlined in this policy;

4.2.3. Brief background or historical information on the individual, community group, or organization; and

4.2.4. Contact information for the individual, group, or organization being nominated for recognition as a Community Hero.

4.3. The City Manager’s Office or their designee will prepare certificates of recognition unique to the Community Heroes program for each individual, group, or organization nominated as a Community Hero and coordinate with the City Manager’s Office for the respective Councilmember signatures.

4.4. The Public Information Officer will prepare and distribute a Press Release on the collective Community Heroes nominees.

4.5. If the certificate or recognition is not being presented at the designated Council meeting due to Councilmember absence or nominee absence, the certificate will be mailed.

CITY OF MILPITAS
Revision Date
COMMUNITY HEROES PROGRAM POLICY / POLICY #

Please Attach All Exhibits After This Page

CITY OF MILPITAS
Revision Date
COMMUNITY HEROES PROGRAM POLICY / POLICY #

ATTACHMENT A

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve the Conceptual Designs for South Milpitas Boulevard Road Extension, Project No. 2016, and Montague Pedestrian Overcrossing at Penitencia Creek, Project No. 2018; and Adopt a Resolution Adopting the Initial Study Mitigated Negative Declaration for South Milpitas Boulevard Road Extension, Project No. 2016 (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602; Michael Silveira, City Engineer, 408-586-3303)
Category: Public Hearings-Community Services and Sustainable Infrastructure Meeting Date: 5/21/2024
Recommendation: (1) Approve the conceptual designs for the South Milpitas Boulevard Road Extension, Project No. 2016, and the Montague Pedestrian Overcrossing at Penitencia Creek, Project No. 2018; (2) Conduct a public hearing for the South Milpitas Boulevard Road Extension, Project No. 2016; (3) Adopt a resolution to adopt the Initial Study/Mitigated Negative Declaration for the South Milpitas Boulevard Road Extension, Project No. 2016; (4) Authorize the Public Works Director to file a Notice of Determination for South Milpitas Boulevard Road Extension, Project No. 2016, in accordance with CEQA Guidelines Section 15075. (5)Find that the Montague Pedestrian Overcrossing at Penitencia Project meets all the requirements for a Statutory Exemption under Public Resources Code section 21080.25 and is therefore, is statutorily exempt from environmental review under CEQA; and (6) Authorize the Public Works Director to file a Notice of Exemption for Montague Pedestrian Overcrossing, Project No. 2018 in accordance with CEQA guidelines section 15062.

BACKGROUND:

The South Milpitas Boulevard Road Extension, Project No. 2016 (“SMB Project”) and the Montague Pedestrian Overcrossing at Penitencia, Project No. 2018 (“POC Project”), collectively “Projects”, are included in the adopted FY 2025-2029 Capital Improvement Program. Both Projects are listed in the Basic Infrastructure Program of the Metro Specific Plan Update (formerly known as Transit Area Specific Plan [TASP]) to provide safe and convenient pedestrian and bicycle connectivity between residential neighborhoods, schools, parks, the Great Mall, and Transit Centers such as Light Rail and BART Stations.

In 2015, as part of the conditions of approval for 650 Capitol and Anton/Ascent residential development, the developer, LMC Milpitas Holding I, LLC, was required to provide feasibility studies and design drawings for both Projects. These feasibility studies and design drawings were for the City to understand the cost and how the new infrastructure improvements would be integrated with their current and future development in the Tango subdistrict. As development along Sango Court and Tarob Court has continued to evolve, the City has partnered with developers to construct the extension of the Sango Court to Tarob Court which is a critical component of the SMB Project. In 2023, staff resumed design of both Projects which are anticipated to be completed by the end of 2024. The conceptual designs of both Projects are now ready for the approval by the City Council (Attachment a).

The California Environmental Quality Act (CEQA) requires the City to inform decision makers and the public about the potential environmental impacts of both Projects, and to reduce those environmental impacts to the extent feasible. The Environmental Impact Report prepared for the TASP certified in 2008 and the Subsequent Environmental Impact Report prepared for the Milpitas Metro Specific Plan (MMSP) certified in 2023 evaluated the potential environmental impacts of the Specific Plans at a programmatic level. Both Specific Plans assumed any project-level, site-specific environmental issues for a given project would require additional review according to CEQA guidelines. The City retained David J. Powers and Associates (DJPA) to complete such environmental review for both Projects.

ANALYSIS:

Development of the TASP, adopted on June 3, 2008, and the Milpitas Metro Specific Plan (MMSP) adopted on February 7, 2023, was guided by community engagement with regional stakeholders, developers, residents, and City decision-makers. Both Specific Plans identified the Projects as much-needed infrastructure improvements to achieve the core circulation key to providing safe and convenient pedestrian and bicycle connectivity between residential neighborhoods, schools, parks, the Great Mall, and Transit Centers.

South Milpitas Boulevard Road Extension, Project No. 2016 (“SMB Project”) The SMB Project provides for the design, construction, and reimbursement to developers of the extension of Sango Court to Tarob Court, and South Milpitas Boulevard to Sango Court road extension. The SMB Project aligns with the MMSP vision of providing bicyclists, pedestrians and vehicle connectivity across the Penitencia Creek and within the Tango Subdistrict. The SMB road extension will comprise of 11’ vehicular travel lanes, 6’ bike lanes, and 6’ sidewalks in both directions, and a bridge to be constructed to cross over the Penitencia Creek. Decorative steel vertical plates illuminated by up-lights will be installed along the bridge railing to resemble the rolling hills of Milpitas.

The extension of Sango Court to Tarob Court will be constructed according to road standards set forth in the MMSP, which is 11’ vehicular travel lanes with a 12’ planter and sidewalk in both directions and an 8’ parking lane. The City partnered with developers of 355 Sango Court and the GeoMax 2 residential development to construct the road extension. Each residential development project is conditioned to dedicate half of the road section along the respective frontage, with each developer being reimbursed for the City cost-share of the road, resulting in a fully functional road after construction. The road extension fronting the 355 Sango Court development was completed in 2023; the GeoMax 2 development is anticipated to be completed in 2026.

The estimated SMB Project cost is $15.7 million; $12.7 million will be funded by TASP Impact Fees, with the remainder anticipated to be funded by a $3.0 million federal earmark selected through the Community Project Funding/Congressionally Directed Spending bill in March 2022. The SMB Project is anticipated to start construction in 2026 pending approval of permits from regulatory agencies, acquisition of right-of-way from the Santa Clara Valley Water District, construction of Sango Court road extension by GeoMax 2 residential development, and the authorization to bid the SMB Project from Caltrans, who administers the federal earmark requirements.

Pedestrian Overcrossing at Penitencia Creek Project no. 2018 (“POC Project”) The POC Project provides for the design and construction of a pedestrian overcrossing across Montague Expressway adjacent to Penitencia Creek channel. The POC Project aligns with the MMSP vision to provide bicyclists and pedestrians connectivity across Montague Expressway by connecting trails along the east side of the channel and the sidewalks on Montague Expressway.

The overcrossing will be a single 198-foot-long span steel bowstring truss supported by two access concrete structures, where each structure consists of a glass tower elevator to comply with ADA standards, a concrete staircase, and mechanical room for operations. Each access structure will be constructed on private property dedicated to the City by easement for such use as part of the Eleanor (Centre Pointe) and 650 Montague residential development. Architectural enhancements depicting the natural beauty of the Bay Area wetlands, such as the landscape and wildlife, will be incorporated into the span truss, glass tower elevator, the concrete walls, and railings for the staircase. Directional lighting will be installed to illuminate the features in the evening.

The estimated POC Project cost is $25 million where $3.5 million is currently funded by TASP Impact fees for the design phase; the remaining $21.5 million does not have identified funding at this time. In an effort to explore funding opportunities, Staff submitted a request for funding in February 2024 through FY24-25 Rebuilding American Infrastructure with Sustainability and Equity (RAISE) Grant program; the funding decision is expected in June 2024. Staff will continue to explore State or Federal grant funding opportunities to address the Project budget shortfall.

Staff presented both Projects to the Transportation Subcommittee on October 15, 2021, and August 23, 2023, and received their support for them. Their feedback and comments have been taken into consideration and incorporated in the updated conceptual plans, which are now ready for the approval by the City Council (Attachment a). After the City Council approval of the conceptual plans, the consultant will be able to finalize design drawings for permitting and architectural enhancement prototypes to ensure constructability and quality of the features.

CALIFORNIA ENVIRONMENTAL QUALITY ACT:

South Milpitas Boulevard Road Extension, Project No. 2016 (“SMB Project”) The City of Milpitas, as the Lead Agency, has prepared an Initial Study/Mitigated Negative Declaration (IS/MND) (Attachment c), Mitigation Monitoring and Reporting Program (MMRP) (Attachment d) and the Notice of Determination (Attachment e) for the SMB Project pursuant to the CEQA.

The IS/MND document analyzes the Project in accordance with the State CEQA Guidelines (California Code of Regulations §15000 et. seq.) and applicable General Plan policies including the City Municipal Code regulations. The Initial Study prepared by the City was undertaken for the purpose of deciding whether the proposed project may have a significant effect on the environment. The Initial Study has incorporated all the relevant information regarding the potential environmental effects of the SMB Project and confirms the determination that an Environmental Impact Report is not required for the project. On the basis of the Initial Study, City staff have concluded the proposed project with implementation of the mitigation measures identified in the Initial Study will not have a significant effect on the environment and, therefore, have prepared a Mitigated Negative Declaration for the following areas:
• Air Quality
• Biological Resources
• Cultural Resources
• Geology and Soils
• Hazards and Hazardous Material
• Tribal Cultural Resources
• Mandatory Findings of Significance
The Notice of Intent (NOI) (Attachment f) to adopt a mitigated negative declaration was publicized in accordance with the City and State noticing requirements. The Notice was published on the City’s webpage, Milpitas Post newspaper, and County of Santa Clara Recording Office. The publication of the initial study for a 30-day public review and comments began on March 1 ,2024, and ended on April 1, 2024. During this period, the initial study document was made available to local, state, and federal agencies and to other interested organizations and individuals for review. On March 29, 2024, Santa Clara Valley Water District (Valley Water) provided comments in response to the IS/MND (Attachment g). The City and the Project’s environmental consultant reviewed and determined the comments are minor with no substantial impact to the overall IS/MND, and thus prepared a Response To Comments (RTC) Memorandum (Attachment h) that was disseminated to Valley Water on May 1, 2024, for their review.

Notice of a May 21, 2024, Public Hearing for the adoption of the Initial Study/Mitigated Negative Declaration was published and circulated as required by CEQA. Staff recommends the City Council open the Public Hearing, receive comments, move to close the Public Hearing following any testimony received, and to adopt a Resolution (Attachment b) adopting the Mitigated Negative Declaration for the South Milpitas Boulevard Vehicle Road Extension, Project No. 2016.

Pedestrian Overcrossing at Penitencia Creek Project no. 2018 (“POC Project”) The City of Milpitas, as the Lead Agency, has prepared a Notice of Exemption Memorandum (Attachment i) for the POC Project pursuant to the California Environmental Quality Act (CEQA). Pursuant to Public Resources Code section 21080.25 (c), the project is found to be statutorily exempt given it meets all the following requirements.

• The City is carrying out the POC Project and is the Lead Agency for the POC Project . • The POC Project is in an urbanized area.
• The POC Project is located within an existing public right-of-way. • The POC Project would be limited to the construction of a pedestrian overcrossing extending over Montague Expressway and does not propose any changes to that could affect automobile capacity and does not include the addition of any auxiliary lanes. • The POC Project construction shall not require the demolition of affordable housing units. • The POC Project cost would not exceed $100,000,000.

In addition to the requirements of subsection (c), pursuant to Public Resources Code 21080.25(f)(1)(A), the City will also certify that the Project will be completed by a skilled and trained workforce in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.

As documented above, the POC Project meets all the requirements for a Statutory Exemption under Public Resources Code section 21080.25; therefore, is statutorily exempt from environmental review under CEQA.

POLICY ALTERNATIVE(S):

Alternative 1: Do not approve the conceptual design and adopt the Resolution adopting the IS/MND for SMB Project.

Pros: None
Cons: Not approving the conceptual design and adoption of IS/MND will delay finalizing the design drawings and certifying CEQA clearance that is needed to start to project approval/permitting process with regulatory agencies. Once the agencies have provided approval/permits, Caltrans will then be able to start the review of the authorization to bid package which is anticipated to commence in January in order to meet the obligation date.

Reason for Not Recommending: The City would be at risk of losing the $3.0 million federal earmark if the City does not meet the obligation date of September 30, 2025.

Alternative 2: Do not approve the conceptual design for POC Project.

Pros: None
Cons: Not approving the conceptual design will prolong the completion of the design drawings that is scheduled to be completed by the end of 2024 which will be ready for construction if funding is secured.

Reason for Not Recommending: Denying the approval of conceptual design will cost the City additional fees in design if the schedule resumes at a late date.

FISCAL IMPACT:

There is no fiscal impact associated with the approval of the conceptual drawings for both projects.

The estimated SMB Project cost is $15.7 million; $12.7 million will be funded by TASP Impact Fees, with the remainder is anticipated to be funded by a $3.0 million federal earmark selected through the Community Project Funding/Congressionally Directed Spending bill in March 2022.

The estimated POC Project cost is $25 million where $3.5 million is currently funded by TASP Impact fees for the design phase; the remaining $21.5 million does not have identified funding at this time.

These projects are anticipated to impact the Department of Public Works’ operating budget in future years. As the scope of this project is better defined through the design process, operating impacts will be reviewed and adjustments may be brought forward in future budget appropriation requests.

RECOMMENDATION:
(1) Approve the Conceptual Designs for South Milpitas Boulevard Road Extension, Project No. 2016, and Montague Pedestrian Overcrossing at Penitencia Creek Project No. 2018; (2) Conduct a public hearing for the South Milpitas Boulevard Road Extension, Project No. 2016; (3) Adopt a Resolution to Adopt Initial Study/Mitigated Negative Declaration for South Milpitas Boulevard Road Extension, Project No. 2016;

(4) Authorize the Public Works Director to file a Notice of Determination for South Milpitas Boulevard Road Extension, Project No. 2016 in accordance with CEQA guidelines section 15075; (5) Find that the Montague Pedestrian Overcrossing at Penitencia Project meets all the requirements for a Statutory Exemption under Public Resources Code section 21080.25 and is therefore, is statutorily exempt from environmental review under CEQA; and
(6) Authorize the Public Works Director to file a Notice of Exemption for Montague Pedestrian Overcrossing, Project No. 2018 in accordance with CEQA guidelines section 15062.

ATTACHMENT(S):
(a) POC and SMB Conceptual Plans
(b) Resolution
(c) SMB Initial Study/Mitigated Negative Declaration
(d) SMB Mitigation Monitoring Reporting Program
(e) SMB Notice of Determination
(f) SMB Notice of Intent
(g) Santa Clara Valley Water Comments Letter to IS/MND
(h) Responses to Comments Memorandum
(i) POC Notice of Exemption Memorandum

OF
TY
CI
ITAS
MILP

CALIFORNIA
JANUARY 26, 1954

INCORPORATED
Date:

Checked
By:

Designed
By:

Rec Dwg No.

SCALE:

CITY PROJECT NO.

MONTAGUE EXPRESSWAY PEDESTRIAN OVERCROSSING
CIP 2018
SHEET
RECOMMENDED FOR BIDDING BY:

Michael Silveira, P.E., CIP Manager
DATE:

Num. Description Engr. Aprv. Date:

Revisions
Drawn
By:

Date:

Designer: Date:

Public Works Inspector:

Utility / Facility Dept. Head:

Project Engineer:

Public Improvements Initially Accepted by
the City Council on:

Date:

Date:

Date:

Date:

Res. No.

Record Drawings Designer Stamp: CITY OF MILPITAS

ENGINEERING DIVISION
DATE:

APPROVED FOR BIDDING BY:

Steven P Erikson, P.E., Engineering Director / City Engineer DATE:

COVER SHEET
G-000
SL
TW
JS 11/03/2023
11/03/2023
11/03/2023
11/03/2023

MONTAGUE PEDESTRIAN OVERCROSSING AT PENITENCIA CREEK

CITY OF MILPITAS, CALIFORNIA

CONCEPTUAL DESIGN
TBD, City Engineer Page 208 of 990

S. MILPITAS BLVD. EXTENSION

SECTION A-A

SANGO COURT

EXPEDITION LANE

VINEYARD AVENUE

ACCESS ROAD

ACCESS ROAD

ACCESS ROAD

ACCESS ROAD

RIGHT OF WAY TO BE DEDICATED
(43 SF±)
A
A

CITY OF MILPITAS
LOT 6
431 M 2

CITY OF MILPITAS
LOT 6
338 M 42

SANGO COURT LP
LOT 5
338 M 42

P E N I T E N C I A C R E E K

JOURNEY STREET

JUBILEE DRIVE

TAROB COURT

SOUTH MILPITAS BLVD
S. MILPITAS BLVD. EXTENSION

SUNROSE DRIVE

SANGO COURT EXTENSION
H:\3648-000\ACAD\EXHIBITS\XB-PRELIMINARY PLAN LINE-BRIDGE_2024-04-22.DWG

PRELIMINARY

ROADWAY PLAN LINE EXHIBIT

SOUTH MILPITAS BLVD BRIDGE PROJECT

CITY OF MILPITAS SANTA CLARA COUNTY CALIFORNIA
SCALE: 1" = 30' DATE: APRIL 2024
0 30 60 90 CIVIL ENGINEERS SURVEYORS PLANNERS

SAN RAMON
WWW.CBANDG.COM

ROSEVILLE
(925) 866-0322
(916) 788-4456
SCALE: 1" =
VERTICAL 1" =

HORIZONTAL

SOUTH MILPITAS BOULEVARD EXTENSION
30'
6'
20 30
40 50
1+00 2+00 3+00 4+00
20 30
40 50

SOUTH MILPITAS BOULEVARD ROAD EXTENSION - CONCEPTUAL DESIGN

VEHICLE OVERCROSSING @ PENITENCIA - DAYLIGHT ANIMATION

SOUTH MILPITAS BOULEVARD VEHICLE OVERCROSSING EAST PENITENCIA CREEK Prepared for CITY OF MILPITAS
DATE: 8/19/21

VEHICLE OVERCROSSING @ PENITENCIA - RENDERED VIEW

SOUTH MILPITAS BOULEVARD VEHICLE OVERCROSSING EAST PENITENCIA CREEK Prepared for CITY OF MILPITAS
DATE: 8/19/21

RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS ADOPTING MITIGATED NEGATIVE DECLARATION FOR THE S. MILPITAS BOULEVARD ROAD EXTENSION, PROJECT NO. 2016.

WHEREAS, South Milpitas Boulevard Road Extension, Project No. 2016 (“Project”) is included in the adopted 2025-2029 Capital Improvement Program. The Project provides for the design, construction, and reimbursement to developers of the extension of Sango Court to Tarob Court and South Milpitas Boulevard to Sango Court road extension.

WHEREAS, The development of the of Transit Area Specific Plan adopted on June 3, 2008 and Milpitas Metro Specific Plan adopted on February 7, 2023 were guided by community engagement with regional public stakeholders, provide developers, residents, and City decision makers. The Project is part of the Basic Infrastructure Program of the Metro Specific Plan to provide safe and convenient pedestrian connectivity between Metro residential neighborhoods, schools, parks, Great Mall, and the Transit Center; and
WHEREAS, on October 15, 2021 and August 23, 2023, Staff presented the Project the Transportation Subcommittee meetings. The Subcommittee expressed their support of the design and recommended to be present to the City Council for approval; and WHEREAS, the City of Milpitas, as the Lead Agency, has prepared an Initial Study/Mitigated Negative Declaration (IS/MND), Mitigation Monitoring and Reporting Program (MMRP) and the Notice of Determination for the Project pursuant to the California Environmental Quality Act (CEQA); and WHEREAS, the IS/MND document analyzes the Project in accordance the State CEQA Guidelines (California Code of Regulations §15000 et. seq.) and applicable General Plan policies including the City Municipal Code regulations; and
WHEREAS, the Initial Study prepared by the City was undertaken for the purpose of deciding whether the Project may have a significant effect on the environment. The Initial Study has incorporated all the relevant information regarding the potential environmental effects of the Project and confirms the determination that an Environmental Impact Report (EIR) is not required for the Project; and WHEREAS, On the basis of the Initial Study, the City have concluded that the Project with implementation of the mitigation measures identified in the Initial Study will not have a significant effect on the environment and, therefore, have prepared a Mitigated Negative Declaration for the following areas:
• Air Quality
• Biological Resources
• Cultural Resources
• Geology and Soils
• Hazards and Hazardous Material
• Tribal Cultural Resources
• Mandatory Findings of Significance; and
WHEREAS, The Notice of Intent (NOI) to adopt a mitigated negative declaration was publicized in accordance with the City and State noticing requirements. The Notice was published on the City’s webpage, Milpitas Post newspaper, and the County of Sant Clara Recording Office. The publication of

2 Resolution No. ____
the Initial Study for a 30-day public review and comments began on March 1 ,2024 and ended on April 1, 2024. During this period, the Initial Study document was made available to local, state, and federal agencies, and to other interested organizations and individuals for review; and WHEREAS, On March 29, 2024, Santa Clara Valley Water District (Valley Water) provided comments in response to the IS/MND. The City and the Project’s environmental consultant reviewed and determined that the comments are minor which has no substantial impact to the overall IS/MND, and thus, prepared a Response To Comments (RTC) Memorandum, which was disseminated to Valley Water on May 1, 2024 for their review; and
WHEREAS, Notice of a May 21, 2024 Public Hearing for the adoption of the Initial Study/ Mitigated Negative Declaration was published and circulated as required by California Environmental Quality Act (CEQA).

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

2. The City Council hereby adopts a resolution to adopt the mitigated negative declaration/initial study for the S. Milpitas Boulevard Road Extension, Project No. 2016.

3. A Notice of Determination shall be filed with the County of Santa Clara within five (5) working days of the final Project’s approval.

PASSED AND ADOPTED this 21st day of May 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney

South Milpitas Boulevard Bridge 1 Mitigated Negative Declaration City of Milpitas May 2024

CITY OF MILPITAS
Mitigated Negative Declaration
Pursuant to Section 21000 et seq of the Public Resources Code, a Mitigated Negative Declaration is hereby granted for the following project:

1. Project Title: South Milpitas Boulevard Bridge

2. Lead Agency Name and Address: City of Milpitas
455 E. Calaveras Boulevard
Milpitas, CA 95035

3. Contact Person and Phone Number: Lyhak Eam, P.E.

Principal Civil Engineer
City of Milpitas
[email protected]
Tel: (408) 586-3349

4. Project Location and APNs: South Milpitas Boulevard across the Penitencia East Channel
086-36-030, 086-36-041, 086-37-018, 086-37-
039, and 086-37-040

5. Project Sponsor's Name & Address: City of Milpitas
455 E Calaveras Boulevard
Milpitas, CA 95035

6. General Plan Designation: MMSP - Milpitas Metro Specific Plan

7. Zoning: Park Open Space (086-37-018), R5 Urban
Residential (086-37-039, and 086-37-040), R4
Multiple - Family Very High Density (086-36-
030), and R3 Multiple - Family (086-36-041)

8. Description of Project: The South Milpitas Boulevard Bridge project proposes to construct a bridge across Penitencia
East Channel and associated roadway
connections. The proposed bridge would serve

South Milpitas Boulevard Bridge 2 Mitigated Negative Declaration City of Milpitas May 2024
vehicles, pedestrians, and cyclists and would
connect South Milpitas Boulevard on the north
side of the channel with a new connector street
to be constructed between Tarob Court and
Sango Court on the south side of the channel.

The proposed project would require demolition
of the existing vacant office building located at
1831-1841 Tarob Court (APN 086-36-030)
which is owned by the City of Milpitas.

FINDINGS
Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15063, an Initial Study for this project was conducted by environmental consultant David J. Powers, on behalf of the City. Through the Initial Study, it was determined that the proposed project would not result in any significant environmental impacts that could not be mitigated to a level of less than significant. Therefore, staff prepared a Mitigated Negative Declaration (MND) pursuant to CEQA Guidelines Section 15070. The IS/MND was available for public review from March 1, 2024 through April 1, 2024. The IS/MND and supporting documents are available at City Hall, 455 E Calaveras Blvd, Milpitas, CA 95035, and the City’s website.

In connection with the adoption of the IS/MND, the record supports findings in accordance with CEQA Guidelines Section 15074, et seq. that:

1. The IS/MND reflects the independent judgment and analysis of the City, as lead agency under CEQA; and

2. Based upon the information contained in the IS/MND, any comments received thereon, and the whole record before the City, there is not a fair argument nor substantial evidence that the Project will have a significant effect on the environment.

MITIGATION MEASURES INCLUDED IN THE PROJECT TO REDUCE POTENTIALLY

SIGNIFICANT EFFECTS TO A LESS THAN SIGNIFICANT LEVEL
A. AESTHETICS - The project will not have a significant impact on this resource; therefore, no mitigation is required.

B. AGRICULTURE AND FOREST RESOURCES - The project will not have a significant impact on this resource; therefore, no mitigation is required.

C. AIR QUALITY
MM AIR-3.1: The project shall implement the following Bay Area Air Quality Management District (BAAQMD) basic and additional construction mitigation measures during all applicable phases of construction:

South Milpitas Boulevard Bridge 3 Mitigated Negative Declaration City of Milpitas May 2024
 All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered at a frequency adequate to maintain minimum soil moisture of 12 percent (i.e., three times a day).

Moisture content shall be verified by lab samples or moisture probe.  All excavation, grading, and/or demolition activities shall be suspended when average wind speeds exceed 20 mph.
 The simultaneous occurrence of excavation, grading, and grounddisturbing construction activities on the same area at any one time shall be phased to reduce the amount of disturbed surfaces at any one time.  Wind breaks (e.g., trees, fences) shall be installed on the windward side(s) of actively disturbed areas of construction. Wind breaks shall have at maximum 50 percent air porosity.
 Vegetative ground cover (e.g., fast-germinating native grass seed) shall be planted in disturbed areas as soon as possible and watered appropriately until vegetation is established.
 All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
 All vehicle speeds on unpaved roads shall be limited to 15 mph.  All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
 Site accesses to a distance of 100 feet from the paved road shall be treated with a six to 12-inch compacted layer of wood chips, mulch, or gravel.  All trucks and equipment, including their tires, shall be washed off prior to leaving the site.
 All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day.

The use of dry power sweeping is prohibited.
 Sandbags or other erosion control measures shall be installed to prevent silt runoff to public roadways from sites with a slope greater than one percent.
 Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to two minutes (as required by the California airborne 14 toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.  All construction equipment shall be maintained and properly tuned in accordance with manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation.
 Post a publicly visible sign with the telephone number and person to contact at the Lead Agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. BAAQMD’s phone

South Milpitas Boulevard Bridge 4 Mitigated Negative Declaration City of Milpitas May 2024
number shall also be visible to ensure compliance with applicable regulations.

MM AIR-3.2: The project shall develop a plan demonstrating that the off-road equipment used on-site to construct the project would achieve a fleet-wide average 86 percent reduction in diesel particulate matter (DPM) exhaust emissions or greater.  All diesel-powered off-road equipment, larger than 25 horsepower, operating on the site for more than two days continuously shall, at a minimum, meet U.S. Environmental Protection Agency (EPA) particulate matter emissions standards for Tier 4 Final engines.
 Where Tier 4 equipment is not available, all construction equipment larger than 25 horsepower used at the site for more than two continuous days shall meet U.S. EPA emissions standards for Tier 3 engines and include California Air Resources Board-certified Level 3 Diesel Particulate Filters or equivalent that altogether achieves a 86 percent reduction in exhaust emissions. Equipment that is electrically powered or uses non-diesel fuels would also meet this requirement.

D. BIOLOGICAL RESOURCES
MM BIO-1.1: Worker Environmental Awareness Program. All construction personnel working on the bridge will participate in a worker environmental awareness program. These personnel will be informed about the potential presence of native fish and northwestern pond turtles within and downstream from the project site. Prior to construction activities, a qualified biologist will instruct all construction personnel about (1) the description and status of these species; (2) the importance of their associated habitats; (3) a list of measures being taken to reduce impacts on these species during project construction; and (4) procedures to be followed if a northwestern pond turtle is observed by construction personnel in or near the project area during construction. If construction personnel observe any turtle in an area where it is at risk of injury or mortality due to the project, or where construction activity could prevent the turtle from returning to perennial habitat downstream from the project site, they will contact a qualified biologist immediately. All project activities that could impact the turtle will stop until the biologist has arrived at the site and determined whether the turtle is a northwestern pond turtle and (with any necessary USFWS approval) relocated the turtle to an appropriate location downstream.

MM BIO-1.2: Preconstruction Survey and Fish Exclusion Prior to Dewatering Activities. Prior to conducting dewatering activities, a qualified biologist will conduct a survey of the project area to look for fish and northwestern pond turtles. If any northwestern pond turtles are detected in areas where they are at risk of injury or mortality due to the project, or where construction activity could prevent the turtles from returning to perennial habitat downstream from

South Milpitas Boulevard Bridge 5 Mitigated Negative Declaration City of Milpitas May 2024
the project site, the biologist will relocate the turtles to suitable habitat in the perennial reach of Penitencia East Channel downstream. If northwestern pond turtle has been listed by the USFWS under FESA by the time construction occurs, the biologist will handle/relocate individual turtles only with USFWS approval.

During the preconstruction survey, the biologist will determine whether there is any potential for native fish to be present in the project area based on presence/absence and depth of water. If any fish are or have the potential to be present in the on-site segment of creek channel, and if continuous flow is present from the project site downstream to the perennial reach of creek, the biologist will use block nets to exclude fish from the reach to be dewatered. A block net will be placed at the upper end of the reach to be dewatered.

Subsequently, qualified biologists will walk from the upper to lower end of the reach with a seine stretched across the channel to encourage fish to move out of the construction area. When the lower end of the construction area is reached, a second block net will be installed to isolate the construction reach.

This procedure will be repeated as needed until no fish remain in the construction area. If surface water is not continuous between the project site and the perennial reach downstream, so that fish excluded from the site are unable to reach suitable habitat downstream, then the qualified biologist will capture native fish using appropriate methods and immediately release them in the perennial reach of the channel downstream.

MM BIO-1.3: Maintenance of Flow through the Site. In the unlikely event that fish are present within the channel when construction occurs, continuous flow will be maintained through the project site (e.g., in a temporary pipe) so that any fish upstream from the site are able to disperse downstream.

MM BIO-1.4: Minimization and Shielding of Lighting. All lighting for vehicular and pedestrian safety shall be minimized to the extent feasible (i.e., shall be no brighter than necessary for safety purposes), shall be oriented toward the bridge rather than outwards toward the Penitencia East Channel, and shall be fully shielded to block illumination from shining upward or outward toward the creek channel.

MM BIO-1.5: Review of the Lighting Plan. The lighting plan shall be reviewed by a qualified biologist prior to construction to ensure that the level of lighting would not result in adverse effects on wildlife in adjacent areas or attracting/disorienting nocturnal migrant birds.

MM BIO-1.6: In conformance with MMSP Policy SC 9.1 and SC 9.2, the following projectspecific measures would be implemented to avoid impacts to nesting birds during construction and ensure compliance with the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code:

South Milpitas Boulevard Bridge 6 Mitigated Negative Declaration City of Milpitas May 2024
 If feasible, construction activities shall be avoided during the nesting season (i.e., February 1 through August 31).
 Potential nesting substrate (e.g., bushes, trees, snags, grass, and suitable artificial surfaces) that would be impacted by development shall be removed during the non-breeding season (i.e., September 1 through January 31), to preclude nesting in the study area.  If it is not feasible to schedule construction activities during the nonbreeding season, preconstruction surveys for nesting birds shall be conducted by a qualified ornithologist to ensure that no nests will be disturbed during construction activities. This survey shall be conducted no more than seven days prior to the initiation of construction activities. During this survey, the ornithologist shall inspect all trees, shrubs, and other potential nesting habitats in and immediately adjacent to the study area for nests. If an active nest is found sufficiently close to work areas to be disturbed by these activities, the ornithologist shall determine the extent of a buffer zone to be established around the nest, typically 300 feet for raptors and 100 feet for other birds, to ensure that no nests of species protected by the MBTA or the California Fish and Game Code will be disturbed during construction activities.

MM BIO-2.1: Work Period. Construction work within the stream banks shall be restricted to the period of April 15 to October 15 (or as otherwise allowed by resource agency permits). Riparian restoration work (refer to MM BIO-2.4 below) using hand tools shall be completed within the wet season the same year following completion of the project.

MM BIO-2.2: Work Area Delineation. Permittee shall clearly show all riparian habitat on project plan sets and place flagging around the work limits within the stream, riparian, and wetland areas to prevent inadvertent impacts to areas not proposed to be disturbed by the project. Flagging shall be removed and appropriately disposed of within five calendar days of the completion of construction work. Access paths and staging areas shall be adequately fenced or flagged during the construction period to prevent damage to adjacent stream, riparian or wetland habitat.

MM BIO-2.3: Prevention of Spread of Invasive Plant Species. To prevent the spread of invasive weed infestations,
 All ground disturbing equipment used within the riparian corridors shall be washed (including tracks, and undercarriages) at a legally operating equipment yard both before and after being used at the site.  All applicable construction materials used on-site, such as straw wattles, mulch, and fill material, shall be certified weed free.  Invasive plant species with a “high” ecosystem impact rating by the California Invasive Plant Council (Cal-IPC; http://www.calipc.org/paf/) shall be actively monitored and controlled in the first

South Milpitas Boulevard Bridge 7 Mitigated Negative Declaration City of Milpitas May 2024
three years following planting. The percent cover of “high” invasive plant species shall be maintained at less than ten percent of the total plant cover in areas disturbed by project work. A qualified ecologist shall assess the type, distribution, and abundance of invasive plant species and recommend effective control measures. Invasive plants shall be removed from the project site on an as-needed basis.

MM BIO-2.4: Revegetation of Temporary Impact Areas. Temporary impact areas within the bed and banks of the channel shall be restored to preconstruction conditions or better. Restoration shall include restoring the topography of temporary impact areas to preconstruction conditions to the extent feasible, bank stabilization, and reestablishment of appropriate vegetation. A habitatappropriate, weed-free native seed mix or propagated plants shall be applied or installed. The species composition shall be developed in coordination with Valley Water. The project proponent shall not plant, seed, or otherwise introduce invasive exotic plant species. Revegetation shall be completed as soon as possible after grading at the project site is completed. Seeding placed between October 15 and April 15 shall be covered with broadcast straw, jute netting, coconut fiber blanket, or similar erosion control blanket. Erosion control products with monofilament or woven plastic strands shall not be used. The revegetation will be considered successful if the vegetative cover in the temporary impact areas reaches 75% of the existing baseline cover, excluding species rated as “high” by Cal-IPC.

A qualified ecologist will monitor conditions in the temporary riparian and stream/marsh impact areas for a minimum of 3 years, or until the success criteria for vegetation cover are attained, whichever is later. Prior to commencement of construction, the ecologist will establish at least four permanent photographic documentation stations (i.e., one station near each corner of the bridge) to provide representative views of vegetation cover. The locations of the photographic documentation stations will be recorded using a GPS, and the direction of the photographs documented with a compass. The ecologist will prepare site maps with the photo-documentation points clearly marked for the project site. Prior to commencement of construction, the ecologist will photographically document the pre-project condition of the project site from each documentation station and estimate the vegetation cover at each station. Following implementation of the project, including any seeding or plant installation, a qualified ecologist will visit the site at least once in late spring to photographically document the postconstruction condition of the project site and estimate vegetation cover. The ecologist will report the results of these inspections (including the assessment of overall vegetation cover described in this measure and the assessment of invasive plants described in Mitigation Measure BIO-5) in a brief memo following each year’s site visit. Monitoring and maintenance may be extended if the success criteria are not attained by year 3. Remedial measures to be considered include, but are not limited to, supplemental planting or seeding,

South Milpitas Boulevard Bridge 8 Mitigated Negative Declaration City of Milpitas May 2024
increased maintenance frequency, increased invasive plant removal activities, or alteration of maintenance strategies.

E. CULTURAL RESOURCES
MM CUL-2.1: Prior to the issuance of any grading permits, the project applicant shall retain a qualified archaeologist and engage a Native American monitor approved by Tamien Nation to be present at the site during all ground disturbing activities.

Submit a copy of the agreement to the Director of Engineering or the Director’s designee.

MM CUL-2.2: Pursuant to CEQA Guidelines 15064.5 (f), if potentially significant cultural resources are discovered during ground-disturbing activities associated with project preparation, construction, or completion, work shall halt in that area until a qualified archaeologist can assess the significance of the find, and, if necessary, develop appropriate treatment measures in consultation with Santa Clara County, Tamien Nation, and other appropriate agencies and interested parties. If such resources are found to be Native American, the treatment measures shall obtain approval from Tamien Nation. A qualified archaeologist shall follow accepted professional standards in recording any find including submittal of the standard Department of Parks and Recreation (DPR) Primary Record forms (Form DPR 523) and locational information to the California Historical Resources Information Center office (Northwest Information Center). The consulting archaeologist shall also evaluate such resources for significance per California Register of Historical Resources eligibility criteria (Public Resources Code Section 5024.1; Title 14 CCR Section 4852). If the archaeologist determines that the find does not meet the CEQA standards of significance, construction shall proceed. In the event the archaeologist determines that further information is needed to evaluate significance, the Engineering Department staff shall be notified and a data recovery plan shall be prepared. If such resources are found to be Native American, a Tamien Nation Tribal representative shall be engaged for evaluation and the data recovery plan shall be prepared in consultation with Tamien Nation.

MM CUL-3.1: In the event that human remains are encountered, the City shall halt work in the immediate area and contact the Santa Clara County coroner. The coroner will make a determination as to whether the remains are Native American. If the remains are believed to be Native American, the coroner will contact the Native American Heritage Commission (NAHC) which will designate the Most Likely Descendants (MLD). The MLD will inspect the remains and make a recommendation for the respectful treatment of the remains and related burial goods.

F. ENERGY - The project will not have a significant impact on this resource; therefore, no mitigation is required.

South Milpitas Boulevard Bridge 9 Mitigated Negative Declaration City of Milpitas May 2024
G. GEOLOGY AND SOILS
MM GEO-6.1: A qualified paleontologist shall attend a preconstruction meeting to ensure construction workers are able to identify potential paleontological resources.

In the event fossils are encountered, construction shall be temporarily halted.

The City’s Engineering Department shall be notified immediately, a qualified paleontologist shall evaluate the fossils, and steps needed to photo document and recover the fossils shall be taken.

H. GREENHOUSE GAS EMISSIONS - The project will not have a significant impact on this resource; therefore, no mitigation is required.

I. HAZARDS AND HAZARDOUS MATERIALS
MM HAZ-2.1: Prior to demolition and grading, a Risk Management Plan (RMP) shall be prepared to protect the health and safety of construction workers and site users adjacent to construction activities. The RMP shall be implemented during all phases of construction and shall include engineering controls, monitoring, and security measures to prevent unauthorized entry to the construction site and to reduce hazards outside of the construction site. The RMP shall address the possibility of encountering subsurface hazards and include procedures to protect workers and the public. The RMP shall also include procedures for managing soils and groundwater removed from the site to ensure that any excavated soils and/or dewatered groundwater with contaminants are stored, managed, and disposed of in accordance with applicable regulations and permits. Protocols for the handling, transport, and disposal of both known and previously unidentified hazardous materials that may be encountered during project development shall be specified. If prescribed exposure levels are exceeded, personal protective equipment shall be required for workers in accordance with Occupational Safety and Health Administration (OSHA) regulations. Finally, the RMP shall also include procedures for the use, storage, disposal, of hazardous materials used during construction activities to prevent the accidental release of these materials into the environment during construction.

MM HAZ-2.2: To reduce the potential for construction workers and nearby sensitive receptor to be exposed to hazardous materials (asbestos containing materials [ACMs] and lead-based paint), the following measures shall be incorporated at all times during the construction of the project.
 In conformance with state and local laws, a visual inspection/predemolition survey, and possible sampling, shall be conducted prior to the demolition of on-site building(s) to determine the presence of asbestoscontaining materials and/or lead-based paints.  Prior to demolition, all building materials containing lead-based paint shall be removed in accordance with the California Division of Occupational Safety and Health Lead in Title 8, California Code of

South Milpitas Boulevard Bridge 10 Mitigated Negative Declaration City of Milpitas May 2024
Regulations, Section 1532.1, including employee training, employee air monitoring, and dust control. Any debris or soil containing lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the type of lead being disposed.
 All potentially friable asbestos-containing materials shall be removed in accordance with National Emission Standards for Hazardous Air Pollutants guidelines prior to demolition or renovation activities that may disturb asbestos-containing materials. All demolition activities shall be undertaken in accordance with the California Division of Occupational Safety and Health standards contained in Title 8, California Code of Regulations, Section 1529, to protect workers from asbestos exposure.  A registered asbestos abatement contractor shall be retained to remove and dispose of asbestos-containing materials identified in the asbestos survey performed for the site in accordance with the standards stated above.
 Materials containing more than one-percent asbestos are also subject to Bay Area Air Quality Management District regulations. Removal of materials containing more than one-percent asbestos shall be completed in accordance with Bay Area Air Quality Management District requirements and notifications.
 Based on California Division of Occupational Safety and Health rules and regulations, the following conditions are required to limit impacts to construction workers.
o Prior to commencement of demolition activities, a building survey, including sampling and testing, shall be completed to identify and quantify building materials containing lead-based paint. o During demolition activities, all building materials containing leadbased paint shall be removed in accordance with the California Division of Occupational Safety and Health Lead in Construction Standard, Title 8, California Code of Regulations, Section 1532.1, including employee training, employee air monitoring and dust control.
o Any debris or soil containing lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the type of waste being disposed.

J. HYDROLOGY AND WATER QUALITY - The project will not have a significant impact on this resource; therefore, no mitigation is required.

K. LAND USE AND PLANNING - The project will not have a significant impact on this resource; therefore, no mitigation is required.

L. MINERAL RESOURCES - The project will not have a significant impact on this resource; therefore, no mitigation is required.

South Milpitas Boulevard Bridge 11 Mitigated Negative Declaration City of Milpitas May 2024
M. NOISE – The project will not have a significant impact on this resource; therefore, no mitigation is required.

N. POPULATION AND HOUSING - The project will not have a significant impact on this resource; therefore, no mitigation is required.

O. PUBLIC SERVICES - The project will not have a significant impact on this resource; therefore, no mitigation is required.

P. RECREATION - The project will not have a significant impact on this resource; therefore, no mitigation is required.

Q. TRANSPORTATION/TRAFFIC - The project will not have a significant impact on this resource; therefore, no mitigation is required.

R. TRIBAL CULTURAL RESOURCES - As described in Section 4.5 Cultural Resources, the project will be required to have a Tribal Monitor present during ground disturbing activities (MM CUL-2.1). In addition, the project would implement MM CUL-2.2 and MM CUL-3.1 under Impact CUL-2 and Impact CUL-3 in Section 4.5 Cultural Resources to reduce the potential for adverse impacts to buried cultural resources (including TCRs) to a less than significant level.

S. UTILITIES AND SERVICE SYSTEMS - The project will not have a significant impact on this resource; therefore, no mitigation is required.

T. WILDFIRE – The project site is not located in or near state responsibility areas or lands classified as very high fire hazard severity zones. Accordingly, the project would not result in wildfire impacts.

U. MANDATORY FINDINGS OF SIGNIFICANCE – With the implementation of the mitigation measures identified above, the project would not degrade the quality of the environment, substantially affect the biological resources, or eliminate important examples of California history or prehistory. The mitigation measures would also ensure that the project’s contribution to cumulative impacts would not be cumulatively considerable, and the project would not cause substantial adverse effects on human beings, either directly or indirectly.

South Milpitas Boulevard Bridge 12 Mitigated Negative Declaration City of Milpitas May 2024

PUBLIC REVIEW PERIOD
The Draft MND public review period ended April 1, 2024, at 5:00 p.m. Written responses to comments received during the public review period were prepared by City staff. Minor revisions to the MND were made to reflect concerns raised during the public review period. The revisions do not constitute a “substantial revision” pursuant to CEQA Guidelines §15073.5 and recirculation of the MND is not required.

Jay Lee, Planning Director Date

Initial Study
South Milpitas Boulevard Bridge
February 2024
In Consultation with
Prepared by

South Milpitas Boulevard Bridge i Initial Study
City of Milpitas February 2024

TABLE OF CONTENTS
Section 1.0 Introduction and Purpose ................................................................................................ 1 Purpose of the Initial Study .................................................................................................... 1 Background ............................................................................................................................. 1 Public Review Period ............................................................................................................. 2 Consideration of the Initial Study and Project ........................................................................ 2 Notice of Determination ......................................................................................................... 2 Section 2.0 Project Information ......................................................................................................... 3 Project Title ............................................................................................................................ 3 Lead Agency Contact ............................................................................................................. 3 Project Applicant .................................................................................................................... 3 Project Location ...................................................................................................................... 3 Assessor’s Parcel Number ...................................................................................................... 7 General Plan Designation and Zoning District ....................................................................... 7 Project-Related Approvals, Agreements, and Permits............................................................ 7 Section 3.0 Project Description .......................................................................................................... 8 Project Overview .................................................................................................................... 8 Project Description ................................................................................................................. 8 Section 4.0 Environmental Setting, Checklist, and Impact Discussion ........................................... 14 Aesthetics .............................................................................................................................. 15 Agriculture and Forestry Resources ..................................................................................... 20 Air Quality ............................................................................................................................ 24 Biological Resources ............................................................................................................ 41 Cultural Resources ................................................................................................................ 61 Energy ................................................................................................................................... 68 Geology and Soils ................................................................................................................. 75 Greenhouse Gas Emissions ................................................................................................... 84 Hazards and Hazardous Materials ........................................................................................ 92 Hydrology and Water Quality ............................................................................................ 103 Land Use and Planning ....................................................................................................... 114 Mineral Resources .............................................................................................................. 117 Noise ................................................................................................................................... 119 Population and Housing ...................................................................................................... 132 Public Services.................................................................................................................... 135

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Recreation ........................................................................................................................... 140 Transportation ..................................................................................................................... 143 Tribal Cultural Resources ................................................................................................... 154 Utilities and Service Systems ............................................................................................. 157 Wildfire ............................................................................................................................... 165 Mandatory Findings of Significance .................................................................................. 167 Section 5.0 References ................................................................................................................... 174 Section 6.0 Lead Agency and Consultants ..................................................................................... 180 Lead Agency ....................................................................................................................... 180 Consultants ......................................................................................................................... 180 Section 7.0 Acronyms and Abbreviations ...................................................................................... 182 Figures
Figure 2.4-1: Regional Map ................................................................................................................... 4 Figure 2.4-2: Vicinity Map .................................................................................................................... 5 Figure 2.4-3: Aerial Photograph and Surrounding Land Uses ............................................................... 6 Figure 3.2-1: Bridge Section .................................................................................................................. 9 Figure 3.2-2: Bridge Elevation ............................................................................................................ 10 Figure 3.2-3: Proposed Roadway Connection ..................................................................................... 12 Figure 4.3-1: Off-Site Receptors and Maximally Exposed Individual ................................................ 37 Figure 4.4-1: Study Area ...................................................................................................................... 47 Figure 4.4-2: Study Area Habitats and Impacts ................................................................................... 48 Figure 4.13-1: Noise Measurement Locations ................................................................................... 125 Figure 4.21-1: Project Site and Nearby TAC and PM2.5 Sources .................................................... 171 Tables
Table 4.3-1: BAAQMD Air Quality Significance Thresholds ............................................................ 30 Table 4.3-2: Project Construction Period Emissions ........................................................................... 31 Table 4.3-3: Project Operational Period Emissions ............................................................................. 33 Table 4.3-4: Unmitigated Construction Risk Impacts at Off-Site MEI ............................................... 38 Table 4.3-5: Operational Risk Impacts at Off-Site MEI ...................................................................... 39 Table 4.7-1 Faults Nearest to Project Site ............................................................................................ 78 Table 4.8-1: Calculated GHG Emissions of Existing Development and Proposed Project ................. 90 Table 4.13-1: Groundborne Vibration Impact Criteria ...................................................................... 120 Table 4.13-2: Land Use Compatibility Guidelines for Community Noise ........................................ 123

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Table 4.13-3: Calculated Construction Noise Levels at Surrounding Land Uses1 ............................ 128 Table 4.13-4: Vibration Source Levels for Construction Equipment at Representative Distances ... 130 Table 4.17-1: VMT Within the Project Vicinity ................................................................................ 150 Table 4.17-2: Study Intersections Level of Service Summary .......................................................... 153 Table 4.21-1: Cumulative Community Risk Impacts at Off-Site MEI .............................................. 172 Appendices
Appendix A: Air Quality and GHG Assessment by Illingworth & Rodkin, Inc., dated 2021 and 2023 Appendix B: Biological Report by H.T. Harvey & Associates, dated 2023 Appendix C: Bridge Design Geotechnical Report by ENGEO, dated 2017 Appendix D: Hydraulic Analysis by Schaaf & Wheeler, dated 2020 Appendix E: Noise and Vibration Assessment by Illingworth & Rodkin, Inc., dated 2021 Appendix F: Transportation Analysis by Hexagon Transportation Consultant Inc, dated 2021

South Milpitas Boulevard Bridge 1 Initial Study
City of Milpitas February 2024
SECTION 1.0 INTRODUCTION AND PURPOSE

PURPOSE OF THE INITIAL STUDY
The City of Milpitas, as the Lead Agency, has prepared this Initial Study for the South Milpitas Boulevard Bridge project in compliance with the California Environmental Quality Act (CEQA), the CEQA Guidelines (California Code of Regulations §15000 et. seq.) and the regulations and policies of the City of Milpitas, California.

The project proposes to construct a bridge across Penitencia East Channel. The proposed bridge would serve vehicles, pedestrians, and cyclists and would connect South Milpitas Boulevard on the north side of the channel with a new connector street to be constructed by the City between Tarob Court and Sango Court on the south side of the channel. The proposed project would require the demolition of an existing vacant office building located at 1831-1841 Tarob Court, Milpitas, CA 95035. This Initial Study evaluates the environmental impacts that might reasonably be anticipated to result from implementation of the proposed project.

BACKGROUND

1.2.1 Transit Area Specific Plan
On June 3, 2008, the City Council approved the Transit Area Specific Plan (TASP). The TASP provided for redevelopment of an approximately 437-acre area in the southern portion of the City around the new Milpitas Transit Center, which opened in June 2020 and includes regional transit connections via Bay Area Rapid Transit (BART), the Santa Clara Valley Transportation Authority (VTA) Light Rail and bus systems, and Alameda County (AC) Transit express bus service. The TASP includes development standards, goals and policies guiding development within the plan area.

Because of the physical characteristics of the area, including major streets, railroads and creeks, the plan also established subdistricts with specific goals and policies to accommodate those unique characteristics.

The impacts from planned development under the TASP are evaluated in the Milpitas TASP Final Environmental Impact Report (FEIR), dated May 2008, as amended in 2011.

1.2.2 Milpitas Metro Specific Plan
On February 7, 2023, the City adopted the Milpitas Metro Specific Plan (MMSP). The MMSP is an update to and replaces the TASP, adopted in 2008 and described above. The Metro Plan increases the Plan Area from approximately 437 acres to approximately 510 gross acres and includes annexations on the east and west sides of the original Plan Area. The purpose of the MMSP is to make better and safer connections for pedestrians and cyclists, improve connectivity to nearby neighborhoods, prioritize affordable housing development, and provide commercial opportunities that will expand the City’s business and job base over the next 20 years. The impacts from planned development under the MMSP are evaluated in the Milpitas Metro Specific Plan Supplemental EIR (SEIR).

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PUBLIC REVIEW PERIOD
Publication of this Initial Study (and attached Mitigated Negative Declaration (MND)) marks the beginning of a 30-day public review and comment period. During this period, the Initial Study/MND will be available to local, state, and federal agencies and to interested organizations and individuals for review. Written comments concerning the environmental review contained in this Initial Study during the 30-day public review period should be sent to:

Lyhak Eam, P.E., Principal Civil Engineer
City of Milpitas
455 E. Calaveras Boulevard
Milpitas, CA 95035
[email protected]

CONSIDERATION OF THE INITIAL STUDY AND PROJECT
Following the conclusion of the public review period, the City of Milpitas will review the comments received, evaluate and incorporate the comments as needed prior to presenting the Initial Study/Mitigated Negative Declaration (MND) to the City Council for adoption. The City shall consider the Initial Study/MND together with any comments received during the public review process. Upon adoption of the MND, the City may proceed with project approval actions.

NOTICE OF DETERMINATION
If the project is approved, the City of Milpitas will file a Notice of Determination (NOD), which will be available for public inspection and posted within 24 hours of receipt at the County Clerk’s Office for 30 days. The filing of the NOD starts a 30-day statute of limitations on court challenges to the approval under CEQA (CEQA Guidelines Section 15075(g)).

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SECTION 2.0 PROJECT INFORMATION

PROJECT TITLE
South Milpitas Boulevard Bridge

LEAD AGENCY CONTACT
Lyhak Eam, P.E.; Principal Civil Engineer
City of Milpitas
455 E. Calaveras Boulevard
Milpitas, CA 95035
[email protected]
Tel: (408) 586-3349

PROJECT APPLICANT
City of Milpitas
Public Works Department
455 E. Calaveras Boulevard
Milpitas, CA 95035

PROJECT LOCATION
The project is located in the City of Milpitas at the southern terminus of South Milpitas Boulevard and includes portions of Assessor’s Parcel Numbers (APNs) 086-36-030, 086-36-041, 086-37-018, 086-37-039, and 086-37-040.

The project location is shown on the following figures:
• Figure 2.4-1: Regional Map
• Figure 2.4-2: Vicinity Map
• Figure 2.4-3: Aerial Photograph and Surrounding Land Uses

0 2 4 1 Miles
130
237
101
680
680
880
880
Mon at gue Exp er s ws ay
Cent ar l Express way
Milpitas
Alviso
Calaveras
Alum Rock
Reservoir
San Francisco
Bay
Project Site
REGIONAL MAP FIGURE 2.4-1
0 1 .5 5 Miles
Pacific Ocean
Monterey Bay
San José
Sunnyvale
Fremont San Mateo
Redwood City
Livermore
Oakland
San Francisco
Santa Cruz
Mountain View
Morgan Hill
Project Site
San Francisco Bay
Milpitas
South Milpitas Boulevard BridgeCity of Milpitas
4 Initial Study
February 2024

eP n
eer C ai cneti
k
Penitencia Creek
Penitencia Creek
U.P.R.R.

U.P.R.R.

U.P.R.R.

U.P.R.R.

VTA Light Rail
VTA Light Rail
Mon at gue E px
er
wss
y a
Montague Expressway
East Capitol Avenue
North Capitol Avenue
Tr mi b el R oad
Lakewood Drive
Trade Zone Boulevard
Sou ht M i pl i at s B ou el var d
uL
dn
A y
ev
eun
ni R
wg
ood A venue
Great Mall Drive
McCandless Drive
Oakland Road
South Main Street
South Abel Street
ell aF
L n
ae
D f
evir
Mon at gue
E
px
er wss y a
Montague Expressway
East Capitol Avenue
North Capitol Avenue
Tr mi ble Road
Lakewood
Drive
Trade Zone Boulevard
Sou ht Mi pl i at s Bou el var d
uL
dn
A
y
ev eun
ni R
wg
ood Avenue
Great Mall ParkwayGreat Mall Parkway
Great Mall Drive
McCandle
ss
Drive
Oakland Road
South Main Street
South Abel Street
ell aF L
n
ae
D
f
evir
680
eP n
eer Cai cneti
k
Penitencia Creek
Penitencia Creek
U.P.R.R.

U.P.R.R.

U.P.R.R.

U.P.R.R.

VTA Light Rail
VTA Light Rail
Piedmont Creek
VICINITY MAP FIGURE 2.4-2
Base Map: ESRI, ArcGIS
0 150 600 900 1,500 Feet
Project Site
South Milpitas Boulevard BridgeCity of Milpitas
5 Initial Study
February 2024

North Capitol Avenue
East Capitol Avenue
Trade Zone Boulevard
McCandless Drive
Montague Expressway
Tr mi b el R oad
North Capitol Avenue
East Capitol Avenue
Trade Zone Boulevard
McCandless Drive
M
ontague Expressway
Tr mi
b el
Road
VTA Light Rail
VTA Light Rail
U.P.R.R.

U.P.R.R.

VTA Light Rail
VTA Light Rail
U.P.R.R.

U.P.R.R.

Penitencia Creek
086-36-011
086-36-012
086-36-013 086-37-018
086-37-039
086-37-040
086-36-030
086-36-041
AERIAL PHOTOGRAPH AND SURROUNDING LAND USES FIGURE 2.4-3 Office to be demolished
Assessor’s Parcel Number
Aerial Source: Google Earth Pro, Jun. 1, 2021. Photo Date: Sep. 2020 0 150 600 900 1,500 Feet
Project Boundary
Auto Service
Commercial
Office
Public Facility/Church
Residential
South Milpitas Boulevard BridgeCity of Milpitas
6 Initial Study
February 2024

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City of Milpitas February 2024
ASSESSOR’S PARCEL NUMBER
As shown on Figure 2.4-3, the proposed bridge and roadway alignment would intersect five parcels, including Assessor’s Parcel Numbers (APNs), 086-36-030, 086-36-041, 086-37-018, 086-37-039, and 086-37-040.

GENERAL PLAN DESIGNATION AND ZONING DISTRICT
The parcels affected by the project have a General Plan land use designation of MMSP - Milpitas Metro Specific Plan. In the area of the proposed bridge, Penitencia East Channel (APN: 086-37-018) is zoned Park Open Space; the two parcels (APNs 086-37-039 and 086-37-040) north of the channel are zoned R5 (Urban Residential) and the parcels (APNs 086-36-030 and 086-36-041) south of the channel are respectively zoned R4 (Multi-Family-Very High Density) and R3 (Multi-Family).

PROJECT-RELATED APPROVALS, AGREEMENTS, AND PERMITS

2.7.1 Lead Agency (City of Milpitas)
• Project Approval by City Council

2.7.2 Responsible Agencies
• United States Army Corps of Engineers
o Section 404 Permit
• California Department Fish & Wildlife:
o Section 1600 Permit
• Regional Water Quality Control Board:
o 401 Certification/Waste Discharge Permit
• Valley Water:
o Encroachment permit
o Joint Use Agreement
• South Bay Water Recycling:
o Recycled Water Use Permit

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SECTION 3.0 PROJECT DESCRIPTION

PROJECT OVERVIEW
The South Milpitas Boulevard Bridge project proposes to construct a bridge across Penitencia East Channel and associated roadway connections consistent with the vision of the TASP and MMSP. The vehicular bridge and road network are part of the Metro Area Specific Plan circulation infrastructure plan to provide vehicular, bicycle, and pedestrian connectivity between Metro development, Milpitas BART Station/Milpitas Transit Station, Great Mall and surrounding residential developments. The proposed bridge would connect South Milpitas Boulevard on the north side of the channel with a new connector street to be constructed between Tarob Court and Sango Court on the south side of the channel. The proposed project would require demolition of the existing vacant office building located at 1831-1841 Tarob Court, Milpitas, CA 95035 (APN 086-36-030), which is owned by the City of Milpitas. The project also includes sidewalk, curb and gutter, bio retention and extension of existing 12-inch potable water and 8-inch recycled water lines from S. Milpitas Boulevard to Sango/Tango Court connection. The extension of these water lines would improve the water system within this area by creating a loop system. The project would be funded by TASP impact Fees.

PROJECT DESCRIPTION

3.2.1 Bridge
The proposed bridge would be approximately 40 feet long and 48 feet wide. The bridge would include an 11-foot-wide vehicle lane, a six-foot wide bicycle lane, and a six-foot wide sidewalk in each direction. The railing of the bridge would consist of vertical parallel steel plates mounted on concrete barriers. The steel plates would range in height from three to 12 feet, be illuminated from below and serve as decorative elements. Additionally, potable water and recycled water lines would be attached to the bridge. The bridge section is shown on Figure 3.2-1.

The bridge would be clear-span, meaning that no permanent structures or fill would be placed within Penitencia East Channel that is owned and maintained by Santa Clara Valley Water District. All abutments and support structures associated with the proposed bridge would occur outside the top of banks of Penitencia East Channel. The bridge would be supported by cast-in-place reinforced concrete abutments supported by cast-in-drilled-hole piers. There would be a total of 16 piers, seven for each abutment. Each of the piers would be 24 inches in diameter and would be drilled to a depth of 60 feet below the ground surface (bgs). The bridge elevation is shown on Figure 3.2-2.

Source: Cornerstone Structural Engineering Group, Inc., April 1, 2020.

BRIDGE SECTION FIGURE 3.2-1
South Milpitas Boulevard BridgeCity of Milpitas
9 Initial Study
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Source: Cornerstone Structural Engineering Group, Inc., April 1, 2020.

BRIDGE ELEVATION FIGURE 3.2-2
South Milpitas Boulevard BridgeCity of Milpitas
10 Initial Study
February 2024

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3.2.2 Circulation
The project would extend South Milpitas Boulevard approximately 250 feet from its current termination point to a new intersection and construct a new connector street between the termination points of Tarob Court and Sango Court (as shown on Figure 3.2-3). The connecting roadways would have a 54-foot right of way that includes 11-foot-wide travel lanes for both vehicles and bicycles going in each direction, an 8-foot-wide vehicle parking aisle on one side of the street, and 7-footwide planting strip and 5-foot-wide sidewalks on both sides of the street. The connecting roadways would consist of asphalt concrete surfacing.

South Milpitas Boulevard between East Capitol Avenue and the Sango Court/Tarob Court roadway connection would be a residential street with a speed limit of 25 miles per hour. Both the South Milpitas Boulevard/Tarob Court/Sango Court intersection and South Milpitas Boulevard/Vineyard Avenue intersection would be stop sign controlled.

The proposed project would also construct connections to the existing Valley Water maintenance roads, which are located on both sides of Penitencia East Channel.

3.2.3 Right-of-Way and Temporary Construction Easements The proposed bridge would require a permanent easement from Valley Water. The City of Milpitas would provide the right of way for the proposed roadway connection at the parcel located at 1831- 1841 Tarob Court, Milpitas, CA 95035 (APN: 086-36-030). The City is currently in negotiations to acquire the right of way from the parcel located at 1905 Tarob Court, Milpitas, CA 95035 (APN 86- 036-041).

3.2.4 Construction
In addition to construction of the proposed bridge and roadway connection, the proposed project would require demolition of the approximately 41,307-square-foot existing office building and associated site improvements (e.g., paved parking and landscaping) located at 1831-1841 Tarob Court, Milpitas, CA 95035. The project would also demolish the existing site improvements (e.g., paved parking and landscaping) located within the right of way acquired from the parcel located at 1905 Tarob Court, Milpitas, CA 95035 (APN 86-036-041). A total of approximately 20 trees would be removed during project construction. The trees removed by the project would be replaced in accordance with the Milpitas Tree Protection Ordinance (MMC Section X-2-7.01).

PENITENCIA CREEK JUBILEE DR
SANGO
CT
TAROB
CT

VINEYARD AVE

S MILPITAS
BLVD
SCALE : 1 : 100
September 15, 2021

S MILPITAS BLVD EXTENSION TO TRAVERSE SUBDIVISION

EXHIBIT
LEGEND:

Proposed Bridge
Proposed Valley Water
Maintenance Road
Future Tarob Ct
Roadway Connection
Existing Roads
Source: City of Milpitas, September 15, 2021.

PROPOSED ROADWAY CONNECTION FIGURE 3.2-3
South Milpitas Boulevard BridgeCity of Milpitas
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South Milpitas Boulevard Bridge 13 Initial Study
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Project construction would take approximately 18 months to complete. Temporary access into the creek channel may be necessary during bridge construction and falsework may need to be placed in the creek bed during construction, potentially requiring dewatering or diversion of the creek if water is present when construction occurs; therefore, as required by Valley Water, bridge construction would take place in a single dry season from June 15 to October 15, 2026. Demolition of the existing building and construction of the proposed roadway connection is anticipated to occur simultaneously with the bridge construction, estimated between Spring 2026 and Summer 2027. Construction work would occur between 7:00 a.m. and 7:00 p.m., Monday through Sunday, excluding holidays consistent with the City’s Municipal Code Section V-213-3(b). No temporary roadway closures are anticipated during project construction. As required under the National Pollutant Discharge Elimination System (NPDES) Construction General Permit and Regional Water Quality Control Board (RWQCB) Municipal Regional Stormwater Permit (MRP), the proposed project would implement water quality control measures during and after project construction activities to protect Penitencia East Channel and other receiving waters downstream of the project site.

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SECTION 4.0 ENVIRONMENTAL SETTING, CHECKLIST, AND

IMPACT DISCUSSION
This section presents the discussion of impacts related to the following environmental subjects in their respective subsections:

4.1 Aesthetics

4.2 Agriculture and Forestry Resources

4.3 Air Quality

4.4 Biological Resources

4.5 Cultural Resources

4.6 Energy

4.7 Geology and Soils

4.8 Greenhouse Gas Emissions

4.9 Hazards and Hazardous Materials

4.10 Hydrology and Water Quality

4.11 Land Use and Planning

4.12 Mineral Resources

4.13 Noise

4.14 Population and Housing

4.15 Public Services

4.16 Recreation

4.17 Transportation

4.18 Tribal Cultural Resources

4.19 Utilities and Service Systems

4.20 Wildfire

4.21 Mandatory Findings of Significance
The discussion for each environmental subject includes the following subsections:
• Environmental Setting – This subsection 1) provides a brief overview of relevant plans, policies, and regulations that compose the regulatory framework for the project and 2) describes the existing, physical environmental conditions at the project site and in the surrounding area, as relevant.
• Impact Discussion – This subsection 1) includes the recommended checklist questions from Appendix G of the CEQA Guidelines to assess impacts and 2) discusses the project’s impact on the environmental subject as related to the checklist questions. For significant impacts, feasible mitigation measures are identified. “Mitigation measures” are measures that will minimize, avoid, or eliminate a significant impact (CEQA Guidelines Section 15370). Each impact is numbered to correspond to the checklist question being answered. For example, Impact BIO-1 answers the first checklist question in the Biological Resources section.

Mitigation measures are also numbered to correspond to the impact they address. For example, MM BIO-1.3 refers to the third mitigation measure for the first impact in the Biological Resources section.

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AESTHETICS

4.1.1 Environmental Setting
Regulatory Framework
State
Streets and Highway Code Sections 260 through 263
The California Scenic Highway Program (Streets and Highway Code, Sections 260 through 263) is managed by the California Department of Transportation (Caltrans). The program is intended to protect and enhance the natural scenic beauty of California highways and adjacent corridors through special conservation treatment.1

In Santa Clara County, there is one state-designated scenic highway, State Route (SR) 9 from the Santa Cruz County line to the Los Gatos City Limit. Eligible State Scenic Highways in Santa Clara County (not officially designated) include: 1) SR 17 from the Santa Cruz County line to SR 9, 2) SR 35 from Santa Cruz County line to SR 9, 3) Interstate 280 from the San Mateo County line to SR 17, and 5) the entire length of SR 152 within the County. There are no state-designated scenic highways in Milpitas. The nearest officially designated State Scenic Highway to Milpitas is Interstate 680 (I680), from Mission Boulevard to the Contra Costa County line.

Local
City of Milpitas General Plan 2040
Hillsides, ridges, visually significant vegetation, and other elements are crucial in shaping the City’s scenic identity. Major entryways to the City (e.g., southbound I-880 at Dixon Landing Road) also shape the City’s scenic identity. The following policies in the City’s General Plan have been adopted for the purpose of reducing or avoiding impacts related to aesthetics and are applicable to the project.

Policies Description
Policy CD 3-3 Ensure that new development and redevelopment reinforces desirable elements of its neighborhood, district, or center, including architectural style, scale, and setback patterns.

Policy CD 3-4 Strengthen the identity of individual neighborhoods, districts, and centers through the use of entry monuments, flags, street signs, themed streets, natural features, landscaping, and lighting.

Streetscape Master Plan
The City of Milpitas Streetscape Master Plan adopted September 19, 2000, contains guidelines and recommendations for the varied streetscape conditions that exist or can be foreseen in the future and 1 California Department of Transportation. ”Scenic Highways.” Accessed January 9, 2024. https://dot.ca.gov/programs/design/lap-landscape-architecture-and-community-livability/lap-liv-i-scenic-highways

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is based on the understanding that attractive streetscapes are a benefit to the community – economically, environmentally, visually, and psychologically.

City of Milpitas Metro Specific Plan
The MMSP adopted in February 2023 has the following policies for the purpose of avoiding or mitigating aesthetic-related impacts resulting from planned development within the MMSP area, including the following:

Policies Description
Policy SD 2.11 Amenity zones shall be located between the street and the Pedestrian Zone and provide amenities contributing to pedestrian comfort, convenience, safety and interest, and support positive social interaction.

Policy PA 3.7.2 Street trees shall be planted in the Amenity Zone at a maximum of 30 feet apart. Street trees shall be selected from Milpitas Approved Street Trees list. No more than one species shall be planted per block in planters between the street and the sidewalk. Trees should be the same species on both sides of the street on each block. Specimens may be more varied adjacent to buildings.

City of Milpitas Zoning Code (Title XI, Chapter 10, Section 54.17 – Lighting) Exterior lighting shall be shielded or recessed so that direct glare and reflections are contained within the boundaries of the parcel, and shall be directed downward and away from adjoining properties and public rights-of-way. Fixtures shall be appropriate in terms of height, style, design, scale and wattage to the use of the property. Fixtures shall be spaced appropriately to maximize pedestrian safety.

Existing Conditions
Project Site
The project site is located near the BART Station/Milpitas Transit Center (located approximately 900 feet to the north of the project site) and is heavily developed with a wide range of urban uses. The proposed bridge would extend from the southern termination point of South Milpitas Boulevard (which is flanked by high-density residential buildings of modern, conventional construction) past the top of bank of the Penitencia East Channel. The proposed roadway connection would extend from the southern end of the bridge through the office development located at 1831-1841 Tarob Court, Milpitas, CA 95035, which was built in 2001 and then would branch east and west to the termination points of Tarob and Sango Court, respectively. (Figure 3.3-3) 1831-1841 Tarob Court, Milpitas, CA 95035 is developed with a one-story rectangular-shaped office building and an associated surface parking lot. The currently vacant office building has a flat roof with terra cotta roof tiles accenting portions of the building’s roofline façade above large dark windows. A garage and shipping/ receiving area is located along the building’s southern face.

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Surrounding Area
The project site is located in an area developed with a mix of industrial, commercial, and residential buildings. The site is bordered to the north by East Capitol Avenue and the Milpitas Transit Center; to the east by new residential mid-rise buildings, townhouses, and the BART right-of-way; to the south by office buildings, townhouses, and Augustus Rathbone Park; and the west by a new highdensity multi-family apartment building (currently under construction), office buildings, and light industrial warehouses.

The project area is developed with a mix of land uses and architectural styles. As a result, no single design aesthetic is dominant. Industrial buildings in the project area consist of metal warehouses and stucco buildings. Commercial buildings in the project area consist of a mix of wood siding and stucco. The multi-family buildings in the project area are of contemporary design.

Scenic Views
The City of Milpitas is located between Mission Hills to the east and baylands to the west. Mission Hills and Monument Peak form a distinctive scenic backdrop to the City and are important to community identity and character. Views of the Diablo Range are considered a prominent landmark dominating the City’s eastern skyline.

The foothills and the Coyote Creek corridor provide the City of Milpitas with a scenic backdrop and visual reference points. Per the City of Milpitas General Plan, scenic resources include hillsides, ridges, visually significant vegetation, and other elements that are critical in shaping the City's scenic identity. Additionally, major entryways to the City (e.g., southbound I-880 at Dixon Landing Road) are considered important to the City’s identity.

Scenic Highways
There are no officially designated State Scenic Highways in the vicinity of the City of Milpitas. The nearest officially designated State Scenic Highway is I-680 from Mission Boulevard in Fremont to Bernal Avenue near Pleasanton, located approximately 5.3 miles north of the City.2

Light and Glare
Sources of light and glare are abundant in the urban environment of the City of Milpitas, including but not limited to streetlights, vehicular headlights, internal/external building lights, security lights, and reflective building surfaces and windows. Areas of open space and along creeks typically have lower levels of ambient nighttime lighting and daytime glare. 2 California Department of Transportation. California State Scenic Highway Systems Map. Accessed January 9, 2024. https://caltrans.maps.arcgis.com/apps/webappviewer/index.html?id=465dfd3d807c46cc8e8057116f1aacaa.

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4.1.2 Impact Discussion
Potentially
Significant
Impact
Less than
Significant
with Mitigation
Incorporated
Less than
Significant
Impact
No Impact
Except as provided in Public Resources Code
Section 21099, would the project:
1) Have a substantial adverse effect on a scenic
vista?
2) Substantially damage scenic resources,
including, but not limited to, trees, rock
outcroppings, and historic buildings within a
state scenic highway?
3) In non-urbanized areas, substantially degrade
the existing visual character or quality of
public views of the site and its surroundings? 3
If the project is in an urbanized area, would
the project conflict with applicable zoning and
other regulations governing scenic quality?
4) Create a new source of substantial light or
glare which would adversely affect day or
nighttime views in the area?
Impact AES-1: The project would not have a substantial adverse effect on a scenic vista. (Less than Significant Impact)
There are no officially designated scenic vistas in the City of Milpitas.4 As described in Section

4.1.1.2 above, significant visual resources in the City include Mission Hills and Monument Peak.

Additionally, views of the Diablo Range are considered a prominent landmark dominating the City’s skyline. The project proposes to construct a bridge across Penitencia East Channel, demolish a onestory office building, construct an extension of S. Milpitas Boulevard and a new connector road, and construct new creek channel access for maintenance. The proposed bridge, including architectural enhancements would be up to approximately 15 feet in height from the finish grade. Due to the flat topography and surrounding development in the project area and the relatively small size of the proposed bridge, the proposed project would not substantially block or affect views of these visual resources. Therefore, implementation of the proposed project would not result in a substantial adverse effect on a scenic vista.

Impact AES-2: The project would not substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway. (No Impact)
The nearest officially designated State Scenic Highway is I-680 from SR 238 in Fremont to Bernal Avenue near Pleasanton and is located approximately 5.3 miles north of the City. The proposed 3 Public views are those that are experienced from publicly accessible vantage points. 4 City of Milpitas. Milpitas General Plan Final Environmental Impact Report. January 2020. SCH 2020070348.

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bridge and roadway connections would not be visible from I-680, and therefore would not damage any scenic resources within a state scenic highway. Therefore, no impact would occur.

Impact AES-3: The project is in an urbanized area. The project would not conflict with applicable zoning and other regulations governing scenic quality. (Less than Significant Impact)
The project would include 7-foot-wide planting strips on both sides of the connecting roadways consistent with MMSP Policies SD 2.11 and PA 3.7.2. Consistent with the intention of General Plan Policy CD 3-4, the railing of the bridge is designed to mimic the shape of the mountain range overlooking the City of Milpitas and would be illuminated with rainbow lights pointing upward away from the channel at nighttime, thereby strengthening the identity of the area through the use of natural features and lighting. With the implementation of the MMSP policies and General Plan Policy CD 3-4, the project would comply with all applicable zoning and other regulations related to scenic resources. Accordingly, the project would not be in conflict with regulations governing scenic quality.

Impact AES-4: The project would not create a new source of substantial light or glare which would adversely affect day or nighttime views in the area. (Less than Significant Impact)
Sources of light and glare are abundant in the urban environment of the immediate project area, and include streetlights, security lights, residential lights, and reflective building surfaces and windows.

The proposed bridge would include illuminated vertical parallel steel plates ranging from three to 12 feet. Bridge materials would be composed of steel and concrete. These materials would not generate glare effects. During operation, the bridge would introduce new light sources to the project area from bridge lighting and passing vehicle lights, including to the Penitencia East Channel. All new lighting for the project would comply with the City of Milpitas Zoning Code (Title XI, Chapter 10, Section

54.17 - Lighting) described above in Section 4.1.1.1 Regulatory Framework. For these reasons, the project would not create a source of substantial light or glare that would adversely affect day or nighttime views in the area.

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AGRICULTURE AND FORESTRY RESOURCES

4.2.1 Environmental Setting
Regulatory Framework
State
Farmland Mapping and Monitoring Program
The California Department of Conservation’s Farmland Mapping and Monitoring Program (FMMP) assesses the location, quality, and quantity of agricultural land and conversion of these lands over time. Agricultural land is rated according to soil quality and irrigation status. The best quality land is identified as Prime Farmland. In CEQA analyses, the FMMP classifications and published county maps are used, in part, to identify whether agricultural resources that could be affected are present on-site or in the project area.5

California Land Conservation Act
The California Land Conservation Act (Williamson Act) enables local governments to enter into contracts with private landowners to restrict parcels of land to agricultural or related open space uses.

In return, landowners receive lower property tax assessments. In CEQA analyses, identification of properties that are under a Williamson Act contract is used to also identify sites that may contain agricultural resources or are zoned for agricultural uses.6 Fire and Resource Assessment Program
The California Department of Forestry and Fire Protection (CAL FIRE) identifies forest land, timberland, and lands zoned for timberland production that can (or do) support forestry resources.7 Programs such as CAL FIRE’s Fire and Resource Assessment Program and are used to identify whether forest land, timberland, or timberland production areas that could be affected are located on or adjacent to a project site.8
5 California Department of Conservation. “Farmland Mapping and Monitoring Program.” Accessed January 9, 2024. http://www.conservation.ca.gov/dlrp/fmmp/Pages/Index.aspx. 6 California Department of Conservation. “Williamson Act.” http://www.conservation.ca.gov/dlrp/lca. 7 Forest Land is land that can support 10 percent native tree cover and allows for management of forest resources (California Public Resources Code Section 12220(g)); Timberland is land not owned by the federal government or designated as experimental forest land that is available for, and capable of, growing trees to produce lumber and other products, including Christmas trees (California Public Resources Code Section 4526); and Timberland Production is land used for growing and harvesting timber and compatible uses (Government Code Section 51104(g)).
8 California Department of Forestry and Fire Protection. “Fire and Resource Assessment Program.” Accessed January 9, 2024. http://frap.fire.ca.gov/.

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Existing Conditions
The Santa Clara County Important Farmland 2016 Map designates the project site as Urban and Built-Up Land.9
Urban and Built-Up Land is defined as land occupied by structures with a building density of at least one unit per 1.5 acres, or approximately six structures to a 10-acre parcel. There is no agricultural or forest land located on or adjacent to the project site and the site is not subject to a Williamson Act contract.

4.2.2 Impact Discussion
Potentially
Significant
Impact
Less than
Significant
with Mitigation
Incorporated
Less than
Significant
Impact
No Impact
Would the project:
1) Convert Prime Farmland, Unique Farmland, or
Farmland of Statewide Importance
(Farmland), as shown on the maps prepared
pursuant to the Farmland Mapping and
Monitoring Program of the California
Resources Agency, to non-agricultural use?
2) Conflict with existing zoning for agricultural
use, or a Williamson Act contract?
3) Conflict with existing zoning for, or cause
rezoning of, forest land (as defined in Public
Resources Code Section 12220(g)), timberland
(as defined by Public Resources Code Section
4526), or timberland zoned Timberland
Production (as defined by Government Code
Section 51104(g))?
4) Result in a loss of forest land or conversion of
forest land to non-forest use?
5) Involve other changes in the existing
environment which, due to their location or
nature, could result in conversion of Farmland
to non-agricultural use or conversion of forest
land to non-forest use?
9 California Department of Conservation. Santa Clara County Important Farmland 2016 Map. Accessed January 9, 2024. https://santaclaralafco.org/sites/default/files/scl16.pdf.

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Impact AG-1: The project would not convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance, as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use. (No Impact)
The project site is designated as Urban and Built-Up Land10, as discussed in Section 4.2.1.2 Existing Conditions, and is not designated as farmland of any type. Therefore, the project would not convert farmland to a non-agricultural use.

Impact AG-2: The project would not conflict with existing zoning for agricultural use, or a Williamson Act contract. (No Impact)
The project site is not designated as farmland or zoned for agricultural use and is not the subject of a Williamson Act contract. The surrounding area is urbanized and not zoned for agricultural use or considered farmland. For these reasons, the proposed project would not conflict with zoning for agricultural uses or a Williamson Act contract.11
Impact AG-3: The project would not conflict with existing zoning for, or cause rezoning of, forest land, timberland, or timberland zoned Timberland Production. (No Impact)
The project site and surrounding area are not zoned forest land or timberland.12 Therefore, the proposed project would not impact timberland or forest land.

Impact AG-4: The project would not result in a loss of forest land or conversion of forest land to non-forest use. (No Impact)
As discussed under Impact AG-3, The project site and surrounding area is not used or zoned for timberland or forest land.13 Since the site is urban and built-up land surrounded by urbanized areas it could not support forest land or timberland. Therefore, the proposed project would not result in the loss of forest land or conversion of forest land to non-forest use. 10 California Department of Conservation. California Important Farmland Finder. Accessed January 9, 2024. DLRP Important Farmland Finder (ca.gov)
11 County of Santa Clara. Interactive Map of Williamson Act Properties. Accessed January 9, 2024. https://sccplanning.maps.arcgis.com/apps/webappviewer/index.html?id=1f39e32b4c0644b0915354c3e59778ce 12 Forest land is land that can support 10 percent native tree cover and allows for management of one or more forest resources, including timber, fish, wildlife, and biodiversity (California Public Resources Code Section 12220(g)); Timberland is land not owned by the federal government or designated as experimental forest land that is available for, and capable of, growing a crop of trees used to produce lumber and other forest products, including Christmas trees (California Public Resources Code Section 4526); and Timberland Production is land devoted to and used for growing and harvesting timber and other compatible uses (Government Code Section 51104(g)). 13 California Department of Forestry and Fire Protection. “Fire and Resource Assessment Program.” Accessed January 9, 2024. http://frap.fire.ca.gov/

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Impact AG-5: The project would not involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use or conversion of forest land to non-forest use. (No Impact)
As stated in Impact AG-1 and Impact AG-4, the project site and surrounding area are not designated farmland or used for agricultural or forestry purposes. As a result, the implementation of the proposed project would not result in the conversion of farmland to non-agricultural use or forest land to non-forest uses.

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AIR QUALITY
The following discussion is based, in part, on an Air Quality and Greenhouse Gas Assessment and an Update to the Air Quality Impact Analysis Memo prepared for the project by Illingworth & Rodkin, Inc. The reports, dated November 10, 2021 and November 20, 2023, are attached to this Initial Study as Appendix A.

4.3.1 Environmental Setting
Background Information
Criteria Pollutants
Criteria air pollutants are pollutants that have established federal or State standards for outdoor concentrations to protect public health. Pursuant with the federal and State Clean Air Acts, the United States Environmental Protection Agency (EPA) and the California Air Resources Board (CARB) have established and enforced the National Ambient Air Quality Standards (NAAQS) and California Ambient Air Quality Standards (CAAQS), respectively. The NAAQS and CAAQS address the following criteria air pollutants: ozone (O3), nitrogen dioxide (NO2), carbon monoxide (CO), particulate matter with a diameter of 10 microns or less (PM10), particulate matter with a diameter of 2.5 micros or less (PM2.5), sulfur dioxide (SO2), and lead. The CAAQS also includes visibility reducing particles, sulfates, hydrogen sulfide, and vinyl chloride.

Toxic Air Contaminants
Toxic Air Contaminants (TACs) are a broad class of compounds known to have health effects. They include but are not limited to criteria pollutants. TACs are found in ambient air, especially in urban areas, and are caused by industry, agriculture, diesel fuel combustion, and commercial operations (e.g., dry cleaners). TACs are typically found in low concentrations, even near their source (e.g., diesel particulate matter [DPM] near a freeway).

Diesel exhaust is the predominant TAC in urban air and is estimated to represent about three-quarters of the cancer risk from TACs. Diesel exhaust is a complex mixture of gases, vapors, and fine particles. Medium- and heavy-duty diesel trucks represent the bulk of DPM emissions from California highways. The majority of DPM is small enough to be inhaled into the lungs. Most inhaled particles are subsequently exhaled, but some deposit on the lung surface or are deposited in the deepest regions of the lungs (most susceptible to injury).14 Chemicals in diesel exhaust, such as benzene and formaldehyde, have been previously identified as TACs by the California Air Resources Board (CARB).

Sensitive Receptors
Some groups of people are more affected by air pollution than others. CARB has identified the following persons who are most likely to be affected by air pollution: children under 16, the elderly over 65, athletes, and people with cardiovascular and chronic respiratory diseases. These groups are classified as sensitive receptors. Locations that may contain a high concentration of these sensitive 14 California Air Resources Board. “Overview: Diesel Exhaust and Health.” Accessed January 9, 2024. https://ww2.arb.ca.gov/resources/overview-diesel-exhaust-and-health.

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population groups include residential areas, hospitals, daycare facilities, elder care facilities, and elementary schools.

Regulatory Framework
Federal and State
Clean Air Act
At the federal level, the United States Environmental Protection Agency (EPA) is responsible for overseeing implementation of the Clean Air Act and its subsequent amendments. The federal Clean Air Act requires the EPA to set national ambient air quality standards for the six common criteria pollutants (discussed previously), including PM, O3, CO, SOx, NOx, and lead.

CARB is the state agency that regulates mobile sources throughout the state and oversees implementation of the state air quality laws and regulations, including the California Clean Air Act.

The EPA and the CARB have adopted ambient air quality standards establishing permissible levels of these pollutants to protect public health and the climate. Violations of ambient air quality standards are based on air pollutant monitoring data and are determined for each air pollutant.

Attainment status for a pollutant means that a given air district meets the standard set by the EPA and/or CARB.

Risk Reduction Plan
To address the issue of diesel emissions in the state, CARB developed the Risk Reduction Plan to Reduce Particulate Matter Emissions from Diesel-Fueled Engines and Vehicles. In addition to requiring more stringent emission standards for new on-road and off-road mobile sources and stationary diesel-fueled engines to reduce particulate matter emissions by 90 percent, the plan involves application of emission control strategies to existing diesel vehicles and equipment to reduce DPM (in additional to other pollutants). Implementation of this plan, in conjunction with stringent federal and CARB-adopted emission limits for diesel fueled vehicles and equipment (including off-road equipment), will significantly reduce emissions of DPM and NOX.

Regional
2017 Clean Air Plan
The Bay Area Air Quality Management District (BAAQMD) is the agency primarily responsible for assuring that the federal and state ambient air quality standards are maintained in the San Francisco Bay Area. Regional air quality management districts, such as BAAQMD, must prepare air quality plans specifying how state and federal air quality standards will be met. BAAQMD’s most recently adopted plan is the Bay Area 2017 Clean Air Plan (2017 CAP). The 2017 CAP focuses on two related BAAQMD goals: protecting public health and protecting the climate. To protect public health, the 2017 CAP describes how BAAQMD will continue its progress toward attaining state and federal air quality standards and eliminating health risk disparities from exposure to air pollution among Bay Area communities. To protect the climate, the 2017 CAP includes control measures designed to reduce emissions of methane and other super-greenhouse gases (GHGs) that are potent

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climate pollutants in the near-term, and to decrease emissions of carbon dioxide by reducing fossil fuel combustion.15
CEQA Air Quality Guidelines
The BAAQMD CEQA Air Quality Guidelines are intended to serve as a guide for those who prepare or evaluate air quality impact analyses for projects and plans in the San Francisco Bay Area.

Jurisdictions in the San Francisco Bay Area Air Basin utilize the thresholds and methodology for assessing air quality impacts developed by BAAQMD within their CEQA Air Quality Guidelines.

The guidelines include information on legal requirements, BAAQMD rules, methods of analyzing impacts, and recommended mitigation measures.

Local
City of Milpitas General Plan 2040
The following policies and actions in the City’s General Plan have been adopted for the purpose of avoiding or mitigating air quality impacts resulting from planned development within the City, including the following:

Policies/Actions Description
Policy CIR 1-3 Promote interconnectivity of the transportation network in existing and new developments and actively measure the quality of conditions in neighborhoods to better understand what barriers exist in order to support use of and access to the network.

Policy CIR 1-4 Coordinate development of safe, inclusive, and health-promoting transportation infrastructure with local, county, regional, and state agencies to optimize efficiency of the transportation network for all users and increase opportunities for physical activity for all types of users.

Policy CIR 6-2 Support development of healthier communities through the use of lower- or non-polluting modes of transportation to reduce GHG vehicle emissions and local air pollution levels.

Action CIR-1j Seek opportunities to eliminate close walking and bicycling network gaps across barriers to mobility, including I-680, I-880, SR 237, and the Union Pacific and BART tracks.

Action CIR-4q Make improvements to roads, signs, and traffic signals as needed to improve accessible, safe, and convenient bicycle and pedestrian travel.

Policy CON 7-1 Ensure that land use and transportation plans support air quality goals through a logical development pattern that focuses growth in and around existing urbanized areas, locates new housing near places of employment, encourages alternative modes of transportation, supports efficient parking strategies, reduces vehicle miles traveled, and requires projects to mitigate significant air quality impacts.
15 Bay Area Air Quality Management District. 2017 Clean Air Plan. April 19, 2017.

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Policies/Actions Description
Policy CON 7-2 Minimize exposure of the public to toxic or harmful air emissions and odors through requiring an adequate buffer or setback distance between residential and other sensitive land uses and land uses that typically generate air pollutants, toxic air contaminants, or obnoxious fumes or odors, including but not limited to industrial, manufacturing, and processing facilities, high-volume roadways, and industrial rail lines. New sensitive receptors, such as residences (including residential care and assisted living facilities for the elderly), childcare centers, schools, playgrounds, churches, and medical facilities shall be located away from existing point sources of air pollution such that excessive levels of exposure do not result in unacceptable health risks. Compliance shall be verified through the preparation of a Health Risk Assessment when deemed necessary by the Planning Director.

Policy CON 7-4 Require projects to adhere to the requirements of the Bay Area Air Quality Management District (BAAQMD).

Policy CON 7-5 Use the City’s development review process and the California Environmental Quality Act (CEQA) to evaluate and mitigate the local and cumulative effects of new development on air quality.

Policy CON 7-6 Coordinate with the California Air Resources Board (CARB) and the Bay Area Air Quality Management District to properly measure air quality emission sources and enforce the standards of the Clean Air Act.

Policy CON 7-7 Comply with regional, state, and federal standards and programs for control of all airborne pollutants and noxious odors, regardless of source.

Policy CON 7-8 Consider the health risks associated with Toxic Air Contaminants (TACs) when reviewing development applications.

Policy CON 7-11 Encourage improvements and design features that reduce vehicle delay such as bus turnouts, and synchronized traffic signals for new development to reduce excessive vehicle emissions caused by idling.

Policy CON 7-12 Encourage and prioritize infrastructure investments and improvements that promote safe walking, bicycling and increased transit ridership.

Action CON-7e Require dust control measures, including those included in the Santa Clara Valley Non-point Source Pollution Control Program, and BAAQMD’s Best Management Practices for fugitive dust control during construction.

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Policies/Actions Description
Action CON-7f Use the BAAQMD “Air Quality Guidelines”, as amended, or replaced, in identifying thresholds, evaluating the potential project and cumulative impacts, and determining appropriate mitigation measures. Review development, infrastructure, and planning projects for consistency with BAAQMD requirements during the CEQA review process. Require project applicants to prepare air quality analyses to address BAAQMD, and General Plan requirements, which includes analysis and identification of:
• Air pollutant emissions associated with the project during construction, project operation, and cumulative conditions;
• Potential exposure of sensitive receptors to toxic air contaminants; • Significant air quality impacts associated with the project for construction, project operation, and cumulative conditions; and • Mitigation measures to reduce significant impacts to less than significant or the maximum extent feasible where impacts cannot be mitigated to less than significant.

Action CON-7i Require construction activity plans, and grading and drainage plans to include and/or provide for dust management to prevent fugitive dust from leaving the property boundaries and causing a public nuisance or a violation of an ambient air standard. Project applicants, or their assigned agents/contractors, shall be responsible for ensuring that all adequate dust control measures are implemented in a timely manner during all phases of project grading and construction.

Existing Conditions
The Bay Area is considered a non-attainment area for ground-level O3 and PM2.5 under both the federal Clean Air Act and state Clean Air Act. The area is also considered in non-attainment for PM10 under the state act, but not the federal act. The area has attained both state and federal ambient air quality standards for CO. As part of an effort to attain and maintain ambient air quality standards for O3 and PM10, BAAQMD has established thresholds of significance for these air pollutants and their precursors. These thresholds are for O3 precursor pollutants (ROG and NOX), PM10, and PM2.5, and apply to both construction period and operational period impacts.

As shown in Figure 2.4-3, sensitive receptors (i.e. residences) are present to the west, east, north, and south of the project site. The nearest sensitive receptors are located immediately west and east of the project site on Sango Court (Sango Apartments) and Tarob Court (Parkside at Tarob Court), respectively.
16 16 Residences are also planned immediately south of the project site on Tarob Court.

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4.3.2 Impact Discussion
Potentially
Significant
Impact
Less than
Significant
with Mitigation
Incorporated
Less than
Significant
Impact
No Impact
Would the project:
1) Conflict with or obstruct implementation of
the applicable air quality plan?
2) Result in a cumulatively considerable net
increase of any criteria pollutant for which the
project region is non-attainment under an
applicable federal or state ambient air quality
standard?
3) Expose sensitive receptors to substantial
pollutant concentrations?
4) Result in other emissions (such as those
leading to odors) adversely affecting a
substantial number of people?
Thresholds of Significance
An Air Quality and GHG Assessment was prepared for the project in November 2021 (refer to Appendix A). At the time, the analysis relied on the thresholds published by BAAQMD in its 2017 CEQA Guidelines. BAAQMD published updates to their 2017 CEQA Guidelines in April 2023.

These updates were mostly a matter of including methods for assessing impacts that are currently practiced by most air quality specialists. To document these updates, address changes to existing conditions (i.e., recently constructed apartments), and explain why the air quality analysis completed for the proposed project is valid and additional modeling is not necessary, Illingworth & Rodkin prepared a memo in November 2023 (refer to Appendix A).

As discussed in CEQA Guidelines Section 15064(b), the determination of whether a project may have a significant effect on the environment calls for judgment on the part of the lead agency and must be based to the extent possible on scientific and factual data. The City of Milpitas has considered the air quality thresholds updated by BAAQMD in April 2023 and regards these thresholds to be based on the best information available for the San Francisco Bay Area Air Basin and conservative in terms of the assessment of health effects associated with TACs and PM2.5. The BAAQMD CEQA Air Quality thresholds used in this analysis are identified in Table 4.3-12 below, which are consistent with BAAQMD’s current (2022) CEQA Guidelines.

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Table 4.3-1: BAAQMD Air Quality Significance Thresholds17 Pollutant
Construction
Thresholds Operation Thresholds
Average Daily
Emissions
(pounds/day)
Annual Daily
Emissions
(pounds/year)
Annual Average
Emissions (tons/year)
Criteria Air Pollutants
ROG, NOx 54 54 10
PM10 82 (exhaust) 82 15
PM2.5 54 (exhaust) 54 10
CO Not Applicable 9.0 ppm (eight-hour) or 20.0 ppm (one-hour) Fugitive Dust
Dust Control
Measures/Best
Management Practices
Not Applicable
Health Risks and Hazards for New Sources (within a 1,000-foot Zone of Influence) Health Hazard Single Source Combined Cumulative Sources Excess Cancer Risk 10 per one million 100 per one million Hazard Index 1.0 10.0
Incremental Annual PM2.5 0.3 µg/m3 0.8 μg/m3 (average)
Impact AIR-1: The project would not conflict with or obstruct implementation of the applicable air quality plan. (Less than Significant Impact) Consistency with 2017 CAP
The 2017 CAP prepared for the Bay Area Air Basin defines an integrated, multi-pollutant control strategy to reduce emissions of particulate matter, TACs, ozone precursors, and GHGs. The proposed control strategy is designed to complement efforts to improve air quality and protect the climate that are being implemented by partner agencies at the state, regional, and local scale. The control strategy encompasses 85 individual control measures. The control measures describe specific actions to reduce emissions of air and climate pollutants from the full range of emission sources and is based on the following four key priorities (Chapter 5, page 5/35):

1. Reduce emissions of criteria air pollutants and TACs from all key sources.

2. Reduce emissions of “super-GHGs” such as methane, black carbon, and fluorinated gases.

3. Decrease demand for fossil fuels (gasoline, diesel, and natural gas). o Increase efficiency of energy, buildings, and transportation sectors 17 Bay Area Air Quality Management District. 2022 California Environmental Quality Act Air Quality Guidelines.

April 2023.

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o Reduce demand for vehicle travel, and high-carbon goods and services.

4. Decarbonize our energy system.
o Make the electricity supply carbon-free.
o Electrify the transportation and building sectors.

As documented below, the proposed project does not exceed the BAAQMD thresholds for construction and operational criteria air pollutant emissions. The proposed project would reduce vehicle miles and vehicle hours traveled by providing a direct connection to surrounding uses and transportation facilities in the project area (refer to the discussion in Section 4.17 Transportation under Impact TRN-2), thereby, reducing criteria pollutant emissions (consistent with 2017 CAP priority #1) and demand for fossil fuels (consistent with 2017 CAP priority #3). For these reasons, the project would not preclude implementation of the 2017 CAP control measures and would not conflict with or obstruct implementation of the 2017 CAP. The project, therefore, would not result in a significant impact related to consistency with the 2017 CAP.

Construction Criteria Air Pollutants
In order to estimate emissions associated with construction of the bridge and roadway component of the project, the Air Quality Assessment (Appendix A) utilized the Sacramento Metropolitan Air Quality Management District’s Road Construction Emission Model (RCEM) in accordance with BAAQMD guidance. The California Emissions Estimator Model (CalEEMod) Version 2020.4.0 was used to estimate emissions associated with demolition of the existing office building and associated surface parking lot.18 Construction emissions were modeled based on equipment list and schedule information provided by the City. Details about the equipment list, construction schedule, modeling, data inputs, and assumptions are included in Appendix A. Table 4.3-23 below summarizes the annualized average daily construction emissions of ROG, NOX, PM10 exhaust, and PM2.5 exhaust during construction of the project.

Table 4.3-2: Project Construction Period Emissions
Year ROG NOx PM10 Exhaust PM2.5 Exhaust
Construction Emissions Per Year (Tons)
2023 0.11 1.15 0.05 0.04
2024 0.15 1.57 0.07 0.06
Annualized Daily Construction Emissions (pounds/day)
2023a 1.69 17.36 0.75 0.66
2024b 1.17 11.87 0.54 0.47
18 CalEEMod Version 2022.1 was released in May 2022 and recommended for use by BAAQMD in 2023.

CalEEMod is routinely updated as newer, more accurate, information becomes available. In fact, there have been 34 updates to Version 2022.1 since its release. The primary difference between the prior and current versions of CalEEMod is that the current version uses EMFAC2021 model mobile emission factors and the prior version uses EMFAC2017 emission factors. The CalEEMod version used for the project air quality and GHG assessment was updated to use the EMFAC2021 emission factors and, therefore, is largely consistent with CalEEMod Version 2022.1 (refer to Appendix A).

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BAAQMD
Thresholds 54 lbs./day 54 lbs./day 82 lbs./day 54 lbs./day Exceeds
Threshold? No No No No
Source: Illingworth & Rodkin, Inc. S. Milpitas Boulevard Vehicular Bridge Air Quality Assessment. November 10, 2021.

Notes:
a Assumes 132 construction workdays
b Assumes 264 construction workdays
As shown in Table 4.3-23 above, the project’s construction criteria pollutant emissions would not exceed BAAQMD thresholds. Additionally, implementation of MM AIR-3.1, described below under Impact AIR-3, would reduce PM2.5 emissions associated with fugitive dust by 69 percent, and implementation of MM AIR-3.2 would reduce PM2.5 emissions associated with construction vehicle exhaust by approximately 86 percent. Therefore, construction criteria air pollutant emissions would be less than significant.

Operation Criteria Air Pollutants
Operational air emissions from the project would be generated primarily by traffic using the new bridge and roadway connection. Emissions associated with vehicle travel depend on the year of analysis because emission control technology requirements are phased-in over time. This analysis assumed that the project would be fully built out and operating in the year 2027.19 Annual emissions were predicted using CARB’s on-road vehicle emissions model, EMFAC2021.

The emissions associated with the existing office development were subtracted from emissions associated with the project to calculate the net increase in emissions caused by the project. The modeling assumptions, data inputs, and results are described further in Appendix A of this Initial Study. Table 4.3-34 below shows the net average daily emissions of ROG, NOX, total PM10, and total PM2.5 during project operation in comparison with the BAAQMD thresholds of significance identified in Table 4.3-12.
19 The analysis of project emissions assumed an earlier build-out date than what the project now proposes (full build-out date of 2027). Since construction at a later date would produce less emissions due to improvements in vehicle efficiency, the emissions reported in Table 4.3-4 are conservative.

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Table 4.3-3: Project Operational Period Emissions
Scenario ROG NOx PM10 PM2.5
Project (2024) Annual
Emissions (tons/year) 0.002 0.004 0.03 0.004
Existing (2024) Annual
Emissions (tons/year) 0.39 0.17 0.25 0.07
Net Annual Emissions
(tons/year) -0.39 -0.16 -0.22 -0.06
BAAQMD Thresholds (tons
/year) 10 tons 10 tons 15 tons 10 tons
Exceeds Threshold? No No No No
Project (2024) Net Average
Daily Emissions
(pounds/day)a

0.01 0.02 0.14 0.02
BAAQMD Thresholds
(pounds/day) 54 lbs. 54 lbs. 82 lbs. 54 lbs.

Exceeds Threshold? No No No No
Source: Illingworth & Rodkin, Inc. S. Milpitas Boulevard Vehicular Bridge Air Quality Assessment. November 10, 2021.

Notes:
a Assumes 365-day operation
As shown in Table 4.3-34 above, the project’s operational emissions would not exceed BAAQMD significance thresholds for ROG, NOx, PM10, and PM2.5 and, therefore, operational criteria air pollutant emissions would be less than significant.

Impact AIR-2: The project would not result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard. (Less than Significant Impact)
As stated in the BAAQMD CEQA Air Quality Guidelines, air pollution by its nature is largely a cumulative impact. No single project is sufficient in size to, by itself, result in non-attainment of ambient air quality standards. If a project exceeds the identified significance thresholds, its emissions would be cumulatively considerable, resulting in significant adverse air quality impacts to the region’s existing air quality conditions.

As described in Section 4.3.1.3 Existing Conditions, the Bay Area is considered a non-attainment area for ground-level O3 and PM2.5 under both the federal Clean Air Act and the California Clean Air Act. The area is also considered non-attainment for PM10 under the California Clean Air Act, but not the federal act. The area has attained both state and federal ambient air quality standards for carbon (CO) monoxide. As part of an effort to attain and maintain ambient air quality standards, BAAQMD

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City of Milpitas February 2024
has established thresholds of significance for O3 precursor pollutants (ROG and NOX), PM10, and PM2.5 and apply to both construction period and operational period impacts. As described above under Impact AIR-1, the project would not result in an exceedance of BAAQMD thresholds for these air pollutants during construction or operation. Therefore, the project would not result in a cumulatively considerable net increase of any criteria pollutant for which the project region is in nonattainment under any applicable federal or state ambient air quality standard.

Impact AIR-3: The project would not expose sensitive receptors to substantial pollutant concentrations. (Less than Significant Impact with Mitigation Incorporated)
Fugitive Dust
Construction activities, particularly during demolition, site preparation, and grading, would temporarily generate fugitive dust in the form of PM10 and PM2.5. Sources of fugitive dust would include disturbed soils at the construction site and trucks carrying uncovered loads of soils. Unless properly controlled, vehicles leaving the site would deposit mud on local streets, which could be an additional source of airborne dust after it dries. Substantial dust generation would be a significant impact.

Mitigation Measures: Implementation of the following mitigation measures would ensure that potential impacts from dust are less than significant.

MM AIR-3.1: The project shall implement the following Bay Area Air Quality Management District (BAAQMD) basic and additional construction mitigation measures during all applicable phases of construction:
• All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered at a frequency adequate to maintain minimum soil moisture of 12 percent (i.e., three times a day).

Moisture content shall be verified by lab samples or moisture probe. • All excavation, grading, and/or demolition activities shall be suspended when average wind speeds exceed 20 mph.
• The simultaneous occurrence of excavation, grading, and grounddisturbing construction activities on the same area at any one time shall be phased to reduce the amount of disturbed surfaces at any one time. • Wind breaks (e.g., trees, fences) shall be installed on the windward side(s) of actively disturbed areas of construction. Wind breaks shall have at maximum 50 percent air porosity.
• Vegetative ground cover (e.g., fast-germinating native grass seed) shall be planted in disturbed areas as soon as possible and watered appropriately until vegetation is established.
• All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.

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• All vehicle speeds on unpaved roads shall be limited to 15 mph. • All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
• Site accesses to a distance of 100 feet from the paved road shall be treated with a six to 12-inch compacted layer of wood chips, mulch, or gravel. • All trucks and equipment, including their tires, shall be washed off prior to leaving the site.
• All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day.

The use of dry power sweeping is prohibited.
• Sandbags or other erosion control measures shall be installed to prevent silt runoff to public roadways from sites with a slope greater than one percent.
• Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to two minutes (as required by the California airborne 14 toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points. • All construction equipment shall be maintained and properly tuned in accordance with manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation.
• Post a publicly visible sign with the telephone number and person to contact at the Lead Agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. BAAQMD’s phone number shall also be visible to ensure compliance with applicable regulations.

With incorporation of MM AIR-3.1, which would implement both BAAQMD basic and additional construction measures, fugitive dust and other particulate matter during construction would have a less than significant air quality impact.

Community Health Risk
Project impacts related to increased community risk can occur either by introducing a new source of TACs with the potential to adversely affect existing sensitive receptors in the project vicinity or by significantly exacerbating existing cumulative TAC impacts. This project would introduce new sources of TACs during construction (i.e., on-site construction and truck hauling emissions) and operation (i.e., mobile and stationary sources). During operation, the project would generate approximately 800 daily trips consisting of mostly light-duty vehicles.20 20 Hexagon Transportation Consultants, Inc. Transportation Analysis for the Penitencia Creek Bridge Project Memorandum. October 1, 2021.

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Community Health Risk from Construction Activity
Construction equipment and associated heavy-duty truck traffic generates diesel exhaust, which is a known TAC. Although construction exhaust air pollutant emissions would not contribute substantially to existing or projected air quality violations (see Impact AIR-1), construction exhaust emissions may still pose health risks for sensitive receptors such as surrounding residents. The primary community risk impact issues associated with construction emissions are cancer risk and exposure to PM2.5. DPM poses both a potential health and nuisance impact to nearby receptors. A quantitative health risk assessment of project construction activities was conducted to evaluate the potential health effects to nearby sensitive receptors from construction emissions of DPM and PM2.5.

As noted under Impact AIR-1, construction period emissions were modeled using RCEM and CalEEMod. These models provided total annual PM10 exhaust emissions (assumed to be DPM) for the off-road construction equipment and EMFAC2021 was used to estimate exhaust emissions from on-road vehicles. Total DPM emissions from the construction site was estimated to be 0.11 tons (218 pounds). The on-road emissions are a result of haul truck travel during grading activities, worker travel, and vendor deliveries during construction. Due to the small size of the project site, a trip length of a half-mile was used to represent construction vehicle travel while at or near the construction site, which is where the construction emissions that nearby sensitive receptors would be exposed to would be generated. Fugitive PM2.5 dust emissions were estimated to be 0.11 tons (227 pounds) using the same methods and assumptions used to estimate site DPM emissions.

The U.S. EPA AERMOD dispersion model was used to predict DPM and PM2.5 concentrations at sensitive receptors (i.e. nearby residents) in the vicinity of the project construction area. Figure 4.3-1 shows the locations of sensitive receptors near the project site and the maximally exposed individual (MEI).21 The highest PM2.5 concentration would occur on the first floor (approximately five feet above ground) and the maximum cancer risk would occur on the second floor (approximately 15 feet above ground) at the adjacent multi-family residence located 16 feet east of the project site. Table

4.3-4 below shows the unmitigated maximum cancer risks, PM2.5 concentrations, and hazard indexes (HIs) for project construction activities affecting the off-site residential MEI. 21 After completion of the project air quality impact analysis, residences were constructed immediately west of the project site (i.e., Sango Apartments) and are also planned to the south. At the time the dispersion modeling was completed, these receptors were not known. However, these new existing and planned receptors would not be expected to experience more exposure than was identified at the MEI due to the prevailing wind direction in the project area. Source: Reyff, James. Illingworth & Rodkin, Inc. Personal Communication. December 19, 2023.

Source: Illingworth & Rodkin, Inc., November 10, 2021.

OFF-SITE RECEPTORS AND MAXIMALLY EXPOSED INDIVIDUAL FIGURE 4.3-1 South Milpitas Boulevard BridgeCity of Milpitas
37 Initial Study
February 2024

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Table 4.3-4: Unmitigated Construction Risk Impacts at Off-Site MEI Source
Cancer Risk
(per million)
Annual
PM2.5
(µg/m3)
Hazard
Index
Project Construction (18 months) 82.77 (infant) 0.87 0.06 BAAQMD Single-Source Threshold 10.0 0.3 1.0
Exceeds Single-Source Threshold?
Yes Yes No
Source: Illingworth & Rodkin, Inc. S. Milpitas Boulevard Vehicular Bridge Air Quality Assessment. November 10, 2021.

Notes:

Numbers in excess of BAAQMD single-source thresholds identified in bold.

As shown in Table 4.3-4 above, the unmitigated maximum increased cancer risks and maximum annual PM2.5 concentrations from construction exceed the BAAQMD single-source thresholds of greater than 10.0 per million for cancer risk and greater than 0.3 μg/m3 for PM2.5 concentrations, which would have a significant impact on the MEI without mitigation.

Mitigation Measures: Implementation of the following mitigation measures would ensure that potential health risk impacts are reduced to less than significant.

MM AIR-3.2: The project shall develop a plan demonstrating that the off-road equipment used on-site to construct the project would achieve a fleet-wide average 86 percent reduction in diesel particulate matter (DPM) exhaust emissions or greater. • All diesel-powered off-road equipment, larger than 25 horsepower, operating on the site for more than two days continuously shall, at a minimum, meet U.S. Environmental Protection Agency (EPA) particulate matter emissions standards for Tier 4 Final engines.
• Where Tier 4 equipment is not available, all construction equipment larger than 25 horsepower used at the site for more than two continuous days shall meet U.S. EPA emissions standards for Tier 3 engines and include California Air Resources Board-certified Level 3 Diesel Particulate Filters or equivalent that altogether achieves a 86 percent reduction in exhaust emissions. Equipment that is electrically powered or uses non-diesel fuels would also meet this requirement.

Implementation of MM AIR-3.1 (described above under Fugitive Dust) would reduce PM2.5 emissions associated with fugitive dust by 69 percent, and implementation of MM AIR-3.2 would reduce PM2.5 emissions associated with construction vehicle exhaust by approximately 86 percent.

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Implementation of these mitigation measures would reduce the maximum increased cancer risk to

8.28 cases and the maximum annual PM2.5 concentration to 0.24, which is below their respective BAAQMD thresholds. Accordingly, construction of the project would not expose nearby sensitive receptors to substantial pollutant concentrations with mitigation incorporated.

Community Health Risk from Project Operations
Operation of the project would generate emissions from mobile sources (i.e., traffic). Based on the project’s trip generation estimates, the project would generate a maximum of 800 new daily trips.

Emissions associated with project traffic were modeled using a combination of EMFAC2021 and CT-EMFAC2017. Since the project proposes to demolish the existing office building and associated parking lot, emissions associated with operation of the existing development were estimated using CalEEMod and subtracted from project emissions. The modeling assumptions, data inputs, and results are described further in Appendix A of this Initial Study. Table 4.3-5 below shows the maximum cancer risks, PM2.5 concentrations, and hazard indexes (HIs) associated with project operation.

Table 4.3-5: Operational Risk Impacts at Off-Site MEI
Source
Cancer Risk
(per million)
Annual
PM2.5
(µg/m3)
Hazard
Index
Project Traffic (Years 0-30) 0.05 (infant) 0.02 <0.1
BAAQMD Single Source Threshold 10 0.3 1.0
Exceeds Single-Source Threshold? No No No
Source: Illingworth & Rodkin, Inc. S. Milpitas Boulevard Vehicular Bridge Air Quality Assessment. November 10, 2021.

As shown above, operation of the project would not result in maximum cancer risks, PM2.5 concentrations, or HIs in excess of BAAQMD thresholds. Accordingly, operation of the project (on its own) would not expose nearby sensitive receptors to substantial pollutant concentrations.

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Health Effects from Criteria Pollutants
In a 2018 decision (Sierra Club v. County of Fresno), the state Supreme Court determined that CEQA requires that when a project’s criteria air pollutant emissions would exceed applicable thresholds and make a cumulatively considerable contribution to a significant cumulative regional criteria pollutant impact, the potential for the project’s emissions to affect human health in the air basin must be disclosed. State and federal ambient air quality standards are health-based standards and exceedances of those standards result in continued unhealthy levels of air pollutants. In developing thresholds of significance for air pollutants, BAAQMD considered the emission levels for which a project’s individual emissions would be cumulatively considerable. If a project has a less than significant impact for criteria pollutants, it is assumed to have no adverse health affect. As described previously under Impact AIR-1, the proposed project would not exceed BAAQMD thresholds for criteria air pollutants. Therefore, the project would not result in an adverse health effect due to emissions of criteria air pollutants.

Impact AIR-4: The project would not result in other emissions (such as those leading to odors) adversely affecting a substantial number of people. (Less than Significant Impact)
BAAQMD has identified a variety of land uses that produce emissions that may lead to odors and generate complaints including, but are not limited to, wastewater treatment plants, landfills, composting operations, and food manufacturing facilities.

Roadways do not typically generate objectionable odors, nor do they fall under any of the land uses identified by BAAQMD to cause objectionable odors. Localized odors, mainly resulting from diesel exhaust and construction equipment on-site, would be created during the construction phase of the project. These odors would be temporary and not likely be noticed beyond the project site’s boundaries. Project-related traffic would be primarily light-duty vehicle traffic, which typically does not use diesel fuel and would not be a substantial permanent source of diesel exhaust odors.

Therefore, the project would not result in other emissions that could adversely affect a substantial number of people.

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BIOLOGICAL RESOURCES
The following discussion is based in part on a Biological Resources Report prepared by H.T. Harvey and Associates. The report, dated December 2023, is included in this Initial Study as Appendix B.

4.4.1 Environmental Setting
Regulatory Framework
Federal and State
Endangered Species Act
Individual plant and animal species listed as rare, threatened, or endangered under state and federal Endangered Species Acts are considered special-status species. Federal and state endangered species legislation has provided the United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Wildlife (CDFW) with a mechanism for conserving and protecting plant and animal species of limited distribution and/or low or declining populations. Permits may be required from both the USFWS and CDFW if activities associated with a proposed project would result in the take of a species listed as threatened or endangered. To “take” a listed species, as defined by the State of California, is “to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill” these species. Take is more broadly defined by the federal Endangered Species Act to include harm of a listed species.

In addition to species listed under state and federal Endangered Species Acts, Sections 15380(b) and (c) of the CEQA Guidelines provide that all potential rare or sensitive species, or habitats capable of supporting rare species, must be considered as part of the environmental review process. These may include plant species listed by the California Native Plant Society and CDFW-listed Species of Special Concern.

Migratory Bird Treaty Act
The federal Migratory Bird Treaty Act (MBTA) prohibits killing, capture, possession, or trade of migratory birds except in accordance with regulations prescribed by the Secretary of the Interior.

Hunting and poaching are also prohibited. The taking and killing of birds resulting from an activity is not prohibited by the MBTA when the underlying purpose of that activity is not to take birds.22 Nesting birds are considered special-status species and are protected by the USFWS. The CDFW also protects migratory and nesting birds under California Fish and Game Code Sections 3503, 3503.5, and 3800. The CDFW defines taking as causing abandonment and/or loss of reproductive efforts through disturbance.

Magnuson-Stevens Fishery Conservation and Management Act The Magnuson-Stevens Fishery Conservation and Management Act governs all fishery management activities that occur in federal waters within the United States’ 200-nautical-mile limit. The Act establishes eight Regional Fishery Management Councils responsible for the preparation of fishery 22 United States Department of the Interior. Memorandum M-37050. The Migratory Bird Treaty Act Does Not Prohibit Incidental Take. January 9, 2024. https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf.

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management plans to achieve the optimum yield from U.S. fisheries in their regions. These councils, with assistance from the National Marine Fisheries Service (NMFS), establish Essential Fish Habitat (EFH) in FMPs for all managed species. Federal agencies that fund, permit, or implement activities that may adversely affect EFH are required to consult with the NMFS regarding potential adverse effects of their actions on EFH, and respond in writing to recommendations by the NMFS.

Sensitive Habitat Regulations
Wetland and riparian habitats are considered sensitive habitats under CEQA. They are also afforded protection under applicable federal, state, and local regulations, and are generally subject to regulation by the United States Army Corps of Engineers (USACE), Regional Water Quality Control Board (RWQCB), CDFW, and/or the USFWS under provisions of the federal Clean Water Act (e.g., Sections 303, 304, 404) and State of California Porter-Cologne Water Quality Control Act.

Fish and Game Code Section 1602
Streambeds and banks, as well as associated riparian habitat, are regulated by the CDFW per Section 1602 of the Fish and Game Code. Work within the bed or banks of a stream or the adjacent riparian habitat requires a Streambed Alteration Agreement from the CDFW.

Local
City of Milpitas General Plan 2040
The following policies in the City’s General Plan have been adopted for the purpose of reducing or avoiding impacts related to biological resources and are applicable to the project.

Policies Description
Policy CON 2-1 Conserve existing native trees and vegetation where possible and integrate regionally native trees and plant species into development and infrastructure projects where appropriate.

Policy CON 2-3 Avoid removal of large, mature trees that provide wildlife habitat, visual screening, or contribute to the visual quality of the environment through appropriate project design and building siting. If full avoidance is not possible, prioritize planting of replacement trees on-site over off-site locations. Replacement trees for high-quality mature trees should generally be of like kind, and provide for comparable habitat functionality, where appropriate site conditions exist.

Policy CON 3-1 Preserve and enhance biological communities that contribute to Milpitas’ and the region’s biodiversity including, but not limited to, wetlands, riparian areas, and aquatic habitat.

Policy CON 3-2 Preserve and enhance the aesthetic and habitat value of riparian corridors including, but not limited to Coyote, Berryessa and Penitencia Creeks.

Policy CON 3-3 Limit the disturbance of natural water bodies and drainage systems in Milpitas by conserving natural open space areas, protecting channels, and minimizing the impacts and pollutants from stormwater and urban runoff.

South Milpitas Boulevard Bridge 43 Initial Study
City of Milpitas February 2024
Policies Description
Policy CON 3-5 Work with the Santa Clara Valley Water District to preserve wetlands, riparian corridors, and buffer zones in Milpitas by continuing to require that new development follow the “Guidelines and Standards for Land Use Near Streams” to protect streams and riparian habitats. Encourage the use of Green Stormwater Infrastructure such as water quality wetlands, bioretention swales, watershed-scale retrofits, and other low-impact development techniques, etc., consistent with the City’s Green Stormwater Infrastructure Plan and where such measures are likely to be effective and technically and economically feasible.

City of Milpitas Metro Specific Plan
The MMSP adopted the following policies for the purpose of avoiding or mitigating biological resources impacts resulting from planned development within the MMSP area, including the following:

Policies Description
SC 9.1 To the extent feasible, future developers in the Metro Plan Area will conduct initial construction activities outside the nesting season between September 16 and January 14 including, but not limited to, tree trimming or tree removal, ground disturbance, demolition, site grading, and other activities that may compromise breeding birds or the success of their nests occurring within or outside the development site.

If construction must occur during the migratory bird nesting season between February 1 to August 31 for small bird species, January 15 to September 15 for owls, and February 15 to September 15 for other raptors, a qualified wildlife biologist will conduct two preconstruction nesting surveys within 14 days and 48 hours prior to the start of construction or demolition.

Additional surveys will be conducted 48 hours prior to the start of construction or demolition in areas that have not been previously disturbed by construction activities or after any construction breaks of 10 days or more. Typical experience requirements for a “qualified biologist” include a minimum of 4 years of academic training and professional experience in biological sciences and related resource management activities, and a minimum of 2 years of experience in biological monitoring or surveying for nesting birds. Surveys of suitable habitat will be performed in publicly accessible areas within 250 feet, 500 feet, and 1,000 feet of the construction site to locate any active passerine, small raptor (e.g., accipiters), and large raptor (e.g., buteos) nests, respectively. Surveys will be conducted at the appropriate times of day and during appropriate nesting times.

SC 9.2 If active nests are located during the preconstruction nesting bird surveys, a qualified biologist will evaluate the construction schedule and location to determine if construction activities could affect an active nest. If so, the following measures will apply, as determined by the qualified biologist:
• If construction would not affect an active nest, construction may proceed without restriction; however, a qualified biologist will regularly monitor the nest at a frequency determined appropriate for the surrounding construction activity, to confirm that there would be no adverse effect. The frequency of spot check monitoring would be determined on a case by-case basis, considering the scope

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City of Milpitas February 2024
Policies Description
of the particular construction activity, duration, proximity to the nest, and any physical barriers that may screen the nest. The qualified biologist may revise the determination at any time during the nesting season.
• If it is determined that construction could affect an active nest, the qualified biologist will establish a no disturbance buffer around the nest. All construction will halt within the buffer until the qualified biologist determines that the nest is no longer active. Buffer distances will be equal to the survey distances (i.e., 50 feet for passerines and 250 feet for raptors); however, the buffer may be adjusted if an obstruction, such as a building, is within the line of sight between the nest and construction.
• Modifying nest buffer distances, allowing certain construction activities within the buffer, and/or modifying construction methods in proximity to active nests will be done at the discretion of the qualified biologist. • Any construction that must occur within established no disturbance buffers will be monitored by a qualified biologist. If adverse effects in response to construction within the buffer are observed that could compromise the nest, construction within the no disturbance buffer will halt until the nest occupants have fledged.
• Any birds that begin nesting within the construction area and survey buffers amid construction activities are assumed to be habituated to construction related or similar noise and disturbance levels. Therefore, exclusion zones around nests may be reduced or eliminated in these cases, as determined by the qualified biologist. Construction may proceed around active nests as long as the nests and their occupants would not be directly affected.

If inactive nests are observed within or adjacent to the construction site, removal or relocation of the inactive nests will be at the discretion of the qualified biologist.

Construction may proceed around inactive nests.

Tree Maintenance and Protection Ordinance
The Tree Maintenance and Protection Ordinance of the City of Milpitas (Milpitas Municipal Code, Chapter 2) serve to preserve all trees and plantings on City property, when feasible, and all protected plantings of significant size, age, and/or benefit to the community at large. Protected trees include:
• All trees which have a 56-inch or greater circumference of any trunk measured 4.5 feet from the ground and located on developed residential property; or • All trees which have a 37-inch or greater circumference of any trunk measured 4.5 feet from the ground and located on developed commercial or industrial property; or • All trees which have a 37-inch or greater circumference of any trunk measured 4.5 feet from the ground, when removal relates to any transaction for which zoning approval or subdivision approval is required; or
• Any tree existing at the time of a zoning or subdivision approval and was a specific subject of such approval or otherwise covered by subsection (b) above; or • All trees which have a 37-inch or greater circumference of any trunk measured 4.5 feet from the ground and located on a vacant, undeveloped or underdeveloped property; or • All heritage trees or groves of trees as defined in Section X 2-2.10.

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City of Milpitas February 2024
A tree removal permit is required from the City of Milpitas for the removal of any street tree, protected tree, or heritage planting.

Existing Conditions
The project site is currently developed with office uses and open space along Penitencia East Channel in an urbanized area of Milpitas. A reconnaissance survey was completed to 1) assess the existing biotic habitat and plant and animal communities in the project vicinity, 2) assess the site for its potential to support special-status species and their habitats, and 3) identify potential jurisdictional habitats. For the purposes of this Initial Study, the “study area” includes the portion of the project site that spans Penitencia East Channel as shown on
The developed/landscaped habitat within the project footprint is of relatively low value to wildlife due to the general lack of vegetation and the predominance of non-native species where vegetation is present. In general, the habitats identified in the study area provide habitat for certain common, urban-adapted wildlife species typically associated with urban development.

Riparian Annual Grassland
This habitat type occurs between the top of bank along the edge of the Valley Water access roads and the ordinary high-water mark (OHWM). The channel banks consist entirely of ruderal grass and herb species.

Common, urban-adapted bird species found elsewhere in the study area likely also occur in the ruderal grassland levee slope, although this habitat has limited value for wildlife due to the absence of trees and shrubs and its isolation from large, contiguous tracts of other grassland. No evidence of burrowing mammals, such as California ground squirrels (Otospermophilus beecheyi) or valley pocket gophers (Thomomys bottae), was observed.

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City of Milpitas February 2024
Figure 4.4-1. The study area is bounded by dense residential development to the north, east and west, and office development to the south.

Biotic Habitat
Reconnaissance-level surveys identified three habitat types or land uses in the study area:
developed/landscaped; riparian annual grassland, and intermittent stream/freshwater marsh. This habitat is described in detail below, and the distribution of these habitats is shown in Figure 4.4-2.

Developed/Landscaped
The majority of the project site consists of developed and landscaped habitat in the form of gravel and asphalt access roads, ornamental trees, and landscaping. Landscaping in the study area includes mostly mature ornamental trees along the fence line south of Penitencia East Channel and recently installed landscaping associated with the adjacent multi-family housing. Fences border the north and south boundary of the study area and include a retaining wall along the north boundary.

The developed/landscaped habitat within the project footprint is of relatively low value to wildlife due to the general lack of vegetation and the predominance of non-native species where vegetation is present. In general, the habitats identified in the study area provide habitat for certain common, urban-adapted wildlife species typically associated with urban development.

Riparian Annual Grassland
This habitat type occurs between the top of bank along the edge of the Valley Water access roads and the ordinary high-water mark (OHWM). The channel banks consist entirely of ruderal grass and herb species.

Common, urban-adapted bird species found elsewhere in the study area likely also occur in the ruderal grassland levee slope, although this habitat has limited value for wildlife due to the absence of trees and shrubs and its isolation from large, contiguous tracts of other grassland. No evidence of burrowing mammals, such as California ground squirrels (Otospermophilus beecheyi) or valley pocket gophers (Thomomys bottae), was observed.

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STUDY AREA FIGURE 4.4-1
South Milpitas Boulevard BridgeCity of Milpitas
47 Initial Study
February 2024

 
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STUDY AREA HABITATS AND IMPACTS FIGURE 4.4-2
South Milpitas Boulevard BridgeCity of Milpitas
48 Initial Study
February 2024

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Intermittent Stream/Freshwater Marsh
This habitat type occurs between the OHWM and the channel bottom. This reach of the channel supports a seasonally high groundwater table and seasonal flows during the wet season. An outlet immediately downstream of the study area conveys stormwater runoff, but the channel bottom in the study area was dry during both site visits. The portion between the OHWM and the toe of the slope is a vertical face throughout the study area and supports loamy eroded soils and ruderal transitional species, such as Italian ryegrass (Festuca perennis) and smilo grass. The substrate on the channel bottom consists of loose coarse sand that has likely accumulated during storm events in some areas, while in other areas it consists of bare loamy soil with surface cracks and only light leaf litter scattered about. The vegetation rooted deeper than the accumulated sand substrate in the channel bottom consists almost entirely of hydrophytic species, comprising freshwater marsh habitat.23 The channel bottom from the toe of slope to the toe of slope meets the requirements of a three-parameter wetland.24
The stream habitat in the project area is intermittent and dry, but turns perennial downstream to the west, outside the project boundary. Downstream of the project site provides foraging habitat for some wetland and aquatic bird species, such as mallards (Anas platyrhynchos), great egrets (Ardea alba), snowy egrets (Egretta thula), and black phoebes (Sayornis nigricans), as well as some migrants such as Wilson’s snipe (Gallinago delicata). The perennial stream habitat may also serve as habitat for amphibians such as Pacific tree frogs (Pseudacris regilla) and a variety of common fish species.

However, the intermittent reach of stream on the project site is much drier. Although the aforementioned species could potentially forage in the on-site reach when it conveys water, they are expected to occur only temporarily, when flow is present, and likely in low numbers.

Special-Status Species
Special-Status Plant Species
While a total of 54 special-status plant species have the potential to occur in the study area, all of these species were determined to be absent from the study area for at least one of the following reasons: (1) lack of suitable habitat types; (2) absence of specific microhabitat or edaphic requirements, such as serpentine soils; (3) the elevation range of the species is outside of the range within the study area; and/or (4) the species is considered eradicated from the site vicinity.25,26 Special-Status Animal Species
While not specifically identified during the site visits, three special-status species, the western pond turtle (Actinemys marmorata), San Francisco common yellowthroat (Geothlypis trichas sinuosa), and yellow warbler (Setophaga petechia), could occur in the project footprint as nonbreeders. 23 Hydrophytic species are those that have adapted to grow in water. 24 The “toe” of a slope is essentially the bottom, or baseline section, of the soil mass comprising the slope. “Three parameter” refers to the three parameters (hydrology, soil, and vegetation) that must be present in order to meet the definition of a wetland.
25 A microhabitat is a small area which differs somehow from the surrounding habitat. Its unique conditions may be home to unique species that may not be found in the larger region. Edaphic factors affect the ability of soil to sustain biological production and diversity, regulate and partition water, filter and buffer contaminants, store and cycle nutrients, and provide plant support.
26 H.T. Harvey & Associates. Biological Resources Report. December 2023. Page 24.

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Sensitive Natural Communities and Habitats
Sensitive Habitats (Waters of the U.S./State)
Penitencia East Channel is considered waters of the U.S./state up to the OHWM. Jurisdictional riparian buffers for waters of the state in the study area extend up to the top of bank of the channel.

Riparian Habitat
It is reasonable to assume that CDFW would claim jurisdiction over areas at and below the top of bank on either side of Penitencia East Channel regardless of the vegetative composition of these areas. No riparian habitat (e.g., riparian trees) is present above the top of bank in the study area.

4.4.2 Impact Discussion
Potentially
Significant
Impact
Less than
Significant
with Mitigation
Incorporated
Less than
Significant
Impact
No Impact
Would the project:
1) Have a substantial adverse effect, either
directly or through habitat modifications, on
any species identified as a candidate, sensitive,
or special status species in local or regional
plans, policies, or regulations, or by the
California Department of Fish and Wildlife
(CDFW) or United States Fish and Wildlife
Service (USFWS)?
2) Have a substantial adverse effect on any
riparian habitat or other sensitive natural
community identified in local or regional
plans, policies, regulations, or by the CDFW
or USFWS?
3) Have a substantial adverse effect on state or
federally protected wetlands (including, but
not limited to, marsh, vernal pool, coastal,
etc.) through direct removal, filling,
hydrological interruption, or other means?
4) Interfere substantially with the movement of
any native resident or migratory fish or
wildlife species or with established native
resident or migratory wildlife corridors, or
impede the use of native wildlife nursery sites?
5) Conflict with any local policies or ordinances
protecting biological resources, such as a tree
preservation policy or ordinance?

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Potentially
Significant
Impact
Less than
Significant
with Mitigation
Incorporated
Less than
Significant
Impact
No Impact
Would the project:
6) Conflict with the provisions of an adopted
Habitat Conservation Plan, Natural
Community Conservation Plan, or other
approved local, regional, or state habitat
conservation plan?
Impact BIO-1: The project would not have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the CDFW or USFWS. (Less than Significant Impact with Mitigation Incorporated)
The project site is currently developed with an office building and open space along Penitencia East Channel in an urbanized area of Milpitas. As described above in Section 4.4.1.2 Existing Conditions, the project site currently supports a number of common wildlife species, although due to its largely developed nature, the site provides relatively low-quality habitat for most species and thus supports relatively small numbers of individuals of any one species. The common wildlife species that occur on the site are regionally abundant, are present in widely available habitats in the region, and will continue to be present on the site following construction.

Special-Status Plant Species
As described above in Section 4.4.1.2 Existing Conditions, no special-status plant species are located on or adjacent to the study area. As a result, the proposed project will have no impact on special-status plant species.

Special-Status Animal Species
Three special-status species, the western pond turtle, San Francisco common yellowthroat, and yellow warbler, could occur in the project footprint as nonbreeders.

Western Pond Turtle
The western pond turtle is a California species of special concern and is protected under the California Fish and Game Code. Western pond turtles are not expected to breed or occur frequently on or near the project site due to lack of suitable habitat. As such, there is a very low probability for western pond turtles to occur on-site. Nevertheless, if water is present in the channel when work needs to occur, there is at least a low potential for northwestern pond turtles or native fish (e.g., if high winter flows allowed fish to move upstream) to be present in the work area. Dewatering could result in the loss of native fish to desiccation or turtles due to movement of vehicles and equipment.

In addition, the project could result in indirect impacts on water quality in reaches of Penitencia East Channel further downstream, where western pond turtles are more likely to occur.

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Mitigation Measures: Implementation of the following mitigation measures would ensure that potential impacts to special status species are less than significant.

MM BIO-1.1: Worker Environmental Awareness Program. All construction personnel working on the bridge will participate in a worker environmental awareness program. These personnel will be informed about the potential presence of native fish and northwestern pond turtles within and downstream from the project site. Prior to construction activities, a qualified biologist will instruct all construction personnel about (1) the description and status of these species; (2) the importance of their associated habitats; (3) a list of measures being taken to reduce impacts on these species during project construction; and (4) procedures to be followed if a northwestern pond turtle is observed by construction personnel in or near the project area during construction. If construction personnel observe any turtle in an area where it is at risk of injury or mortality due to the project, or where construction activity could prevent the turtle from returning to perennial habitat downstream from the project site, they will contact a qualified biologist immediately. All project activities that could impact the turtle will stop until the biologist has arrived at the site and determined whether the turtle is a northwestern pond turtle and (with any necessary USFWS approval) relocated the turtle to an appropriate location downstream.

MM BIO-1.2: Preconstruction Survey and Fish Exclusion Prior to Dewatering Activities. Prior to conducting dewatering activities, a qualified biologist will conduct a survey of the project area to look for fish and northwestern pond turtles. If any northwestern pond turtles are detected in areas where they are at risk of injury or mortality due to the project, or where construction activity could prevent the turtles from returning to perennial habitat downstream from the project site, the biologist will relocate the turtles to suitable habitat in the perennial reach of Penitencia East Channel downstream. If northwestern pond turtle has been listed by the USFWS under FESA by the time construction occurs, the biologist will handle/relocate individual turtles only with USFWS approval.

During the preconstruction survey, the biologist will determine whether there is any potential for native fish to be present in the project area based on presence/absence and depth of water. If any fish are or have the potential to be present in the on-site segment of creek channel, and if continuous flow is present from the project site downstream to the perennial reach of creek, the biologist will use block nets to exclude fish from the reach to be dewatered. A block net will be placed at the upper end of the reach to be dewatered.

Subsequently, qualified biologists will walk from the upper to lower end of the reach with a seine stretched across the channel to encourage fish to move out of the construction area. When the lower end of the construction area is reached, a second block net will be installed to isolate the construction reach.

This procedure will be repeated as needed until no fish remain in the construction area. If surface water is not continuous between the project site

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and the perennial reach downstream, so that fish excluded from the site are unable to reach suitable habitat downstream, then the qualified biologist will capture native fish using appropriate methods and immediately release them in the perennial reach of the channel downstream.

MM BIO-1.3: Maintenance of Flow through the Site. In the unlikely event that fish are present within the channel when construction occurs, continuous flow will be maintained through the project site (e.g., in a temporary pipe) so that any fish upstream from the site are able to disperse downstream.

Implementation of mitigation measures MM BIO-1.1, BIO-1.2, and BIO-1.3 would reduce impacts on native fish and northwestern pond turtles to less than significant levels by ensuring that individual native fish and northwestern pond turtles are not trapped or otherwise impacted by the project.

San Francisco Common Yellowthroat and Yellow Warbler
The San Francisco common yellowthroat and yellow warbler are a California species of special concern and are protected under the California Fish and Game Code. The San Francisco common yellowthroat and yellow warbler could occur on the project site as nonbreeding migrants, transients, or foragers, but they are not known or expected to breed or occur in large numbers on or near the project site. At most, a few individuals of each of these species could occasionally forage on the project site. Proposed project activities would not result in the injury or mortality of individuals of any of these species, as they are mobile enough to avoid construction equipment. Because these species do not breed on the site, project activities would not affect breeding habitat or vulnerable young of these species. Therefore, the project would not result in the injury or mortality of individuals of these species. The project may result in the disturbance of a few foraging individuals and loss of a relatively limited amount of foraging habitat. However, this impact would be less than significant.

Wildlife Impacts from Increased Lighting
Many animals are sensitive to light cues, which influence their physiology and shape their behaviors, particularly during the breeding season. The project would construct lighting on a bridge that would increase the amount of light within and around the project site. The proposed bridge would include illuminated vertical parallel steel plates ranging from three to 12 feet. Based on the project’s lighting plans, this lighting could spill into the adjacent Penitencia East Channel, resulting in an increase in lighting compared to existing conditions. Other new light sources to the project area would result from passing vehicle lights, including to Penitencia East Channel. If the lighting is excessive, or pointed upwards, nocturnal migrant birds may also be adversely affected. As a result, the species that utilize the aquatic and wetland habitats within the Penitencia East Channel could be significantly impacted by disrupting their natural behaviors. Although there is expert agreement that increases in illuminance can affect wildlife behavior, there is no agreed upon quantitative level of illuminance increase threshold for significant impacts to animals.

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Mitigation Measure: Implementation of the following mitigation measures would ensure that potential impacts to wildlife from increase lighting are less than significant.

MM BIO-1.4: Minimization and Shielding of Lighting. All lighting for vehicular and pedestrian safety shall be minimized to the extent feasible (i.e., shall be no brighter than necessary for safety purposes), shall be oriented toward the bridge rather than outwards toward the Penitencia East Channel, and shall be fully shielded to block illumination from shining upward or outward toward the creek channel.

MM BIO-1.5: Review of the Lighting Plan. The lighting plan shall be reviewed by a qualified biologist prior to construction to ensure that the level of lighting would not result in adverse effects on wildlife in adjacent areas or attracting/disorienting nocturnal migrant birds.

Implementation of MM BIO-1.4 and MM BIO-1.5 would ensure shielding and minimize spillover of lighting into the Penitencia East Channel, thereby reducing impacts to wildlife from lighting to less than significant.

Nesting Birds
Nesting habitat for non-listed special-status raptor species and common nesting bird species occur on and near the project site. Many bird species utilize large ornamental trees for cover, nesting, or stop over locations during migration, especially with the availability of water from the nearby drainages.

All native bird species that nest within the project area are protected under the Migratory Bird Treaty Act and California Fish and Game Code. Construction disturbance could cause nest abandonment resulting in an indirect loss to avian species.

Mitigation Measures: Implementation of the following mitigation measures would ensure that potential impacts to nesting birds are less than significant.

MM BIO-1.6: In conformance with Metro Specific Plan Policy SC 9.1 and SC 9.2 the following project-specific measures would be implemented to avoid impacts to nesting birds during construction and ensure compliance with the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code:
• If feasible, construction activities shall be avoided during the nesting season (i.e., February 1 through August 31).
• Potential nesting substrate (e.g., bushes, trees, snags, grass, and suitable artificial surfaces) that would be impacted by development shall be removed during the non-breeding season (i.e., September 1 through January 31), to preclude nesting in the study area. • If it is not feasible to schedule construction activities during the nonbreeding season, preconstruction surveys for nesting birds shall be conducted by a qualified ornithologist to ensure that no nests will be disturbed during construction activities. This survey shall be conducted no more than seven days prior to the initiation of

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construction activities. During this survey, the ornithologist shall inspect all trees, shrubs, and other potential nesting habitats in and immediately adjacent to the study area for nests. If an active nest is found sufficiently close to work areas to be disturbed by these activities, the ornithologist shall determine the extent of a buffer zone to be established around the nest, typically 300 feet for raptors and 100 feet for other birds, to ensure that no nests of species protected by the MBTA or the California Fish and Game Code will be disturbed during construction activities.

With implementation of MM BIO-1.6 above and consistent with MMSP Policy SC 9.1 and SC 9.2, the project would have a less than significant impact on nesting birds.

Impact BIO-2: The project would not have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the CDFW or USFWS. (Less than Significant Impact with Mitigation Incorporated)
As discussed above in Section 4.4.1.2 Existing Conditions, Penitencia East Channel is considered waters of the U.S./state up to the OHWM. Jurisdictional riparian buffers for waters of the state in the study area extend up to the top of bank of the channel. CDFW would likely claim jurisdiction over areas at and below the top of bank on either side of Penitencia East Channel regardless of the vegetative composition of these areas. No riparian habitat (e.g., riparian trees) is present above the top of bank in the study area.

The majority of ground-disturbing activity (i.e., project construction) would occur outside the top of banks of the Penitencia East Channel. Because the abutments would be placed above the top of bank, no permanent loss of riparian jurisdiction would occur. No riprap or other improvements are proposed to the banks that would prevent future vegetation growth. There would, however, be permanent and temporary impacts to the riparian banks as a result of shading from the proposed bridge and a temporary work area around the bridge abutments. The bridge would permanently shade

0.02 acres of riparian annual grassland.27 Permanently shaded vegetation would weaken, decrease in cover, or even die off leaving bare soil exposed. Nevertheless, non-native dominated annual grassland is typically able to persist with some shading. The bridge would be eight feet above the banks, allowing for some light under the deck enabling enough herbaceous growth to stabilize soils and provide similar habitat quality to the existing condition.

The temporary work area within the channel, where dewatering, creek diversion, and installation of falsework may occur is comprised of a 40-foot buffer upstream and downstream of the proposed bridge, temporarily impacting up to 0.03 acres of riparian annual grassland . 28 Such impacts would
likely be greater if work took place during the rainy season, as incident rainfall softens soils and the annual grasses and herbs that dominate this habitat would be recently germinated and would not provide the same soil stabilization functions that more established annual vegetation thatch does. 27 H.T. Harvey & Associates. Biological Resources Report. December 2023. Page 40. 28 Ibid.

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Temporary construction disturbance to the vegetated riparian banks could lead to temporal loss of the soil stabilization functions that the riparian grassland provides, causing erosion and sedimentation, which would be significant if not prevented. Denuded banks may also be susceptible to increased or new infestations of weeds from lack of competition or introduction of new weed propagules on equipment used in this habitat.

Mitigation Measures: Implementation of the following mitigation measures would ensure that potential impacts to riparian habitat are less than significant.

MM BIO-2.1: Work Period. Construction work within the stream banks shall be restricted to the period of April 15 to October 15 (or as otherwise allowed by resource agency permits). Riparian restoration work (refer to MM BIO-2.4 below) using hand tools shall be completed within the wet season the same year following completion of the project.

MM BIO-2.2: Work Area Delineation. Permittee shall clearly show all riparian habitat on project plan sets and place flagging around the work limits within the stream, riparian, and wetland areas to prevent inadvertent impacts to areas not proposed to be disturbed by the project. Flagging shall be removed and appropriately disposed of within five calendar days of the completion of construction work. Access paths and staging areas shall be adequately fenced or flagged during the construction period to prevent damage to adjacent stream, riparian or wetland habitat.

MM BIO-2.3: Prevention of Spread of Invasive Plant Species. To prevent the spread of invasive weed infestations,
• All ground disturbing equipment used within the riparian corridors shall be washed (including tracks, and undercarriages) at a legally operating equipment yard both before and after being used at the site. • All applicable construction materials used on-site, such as straw wattles, mulch, and fill material, shall be certified weed free. • Invasive plant species with a “high” ecosystem impact rating by the California Invasive Plant Council (Cal-IPC; http://www.calipc.org/paf/) shall be actively monitored and controlled in the first three years following planting. The percent cover of “high” invasive plant species shall be maintained at less than ten percent of the total plant cover in areas disturbed by project work. A qualified ecologist shall assess the type, distribution, and abundance of invasive plant species and recommend effective control measures. Invasive plants shall be removed from the project site on an as-needed basis.

MM BIO-2.4: Revegetation of Temporary Impact Areas. Temporary impact areas within the bed and banks of the channel shall be restored to preconstruction conditions or better. Restoration shall include restoring the topography of temporary impact areas to preconstruction conditions to the extent feasible, bank stabilization, and re-establishment of appropriate vegetation. A habitatPage 287 of 990 South Milpitas Boulevard Bridge 57 Initial Study
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appropriate, weed-free native seed mix or propagated plants shall be applied or installed. Species such as California buckwheat (Eriogonum fasciculatum), California fuschia (Epilobium canum), coyote brush (Baccharis pilularis), purple needlegrass (Stipa pulchra), and seaside heliotrope (Heliotropium curassavicum) would be appropriate. The project proponent shall not plant, seed, or otherwise introduce invasive exotic plant species. Revegetation shall be completed as soon as possible after grading at the project site is completed.

Seeding placed between October 15 and April 15 shall be covered with broadcast straw, jute netting, coconut fiber blanket, or similar erosion control blanket. Erosion control products with monofilament or woven plastic strands shall not be used. The revegetation will be considered successful if the vegetative cover in the temporary impact areas reaches 75% of the existing baseline cover, excluding species rated as “high” by Cal-IPC.

A qualified ecologist will monitor conditions in the temporary riparian and stream/marsh impact areas for a minimum of 3 years, or until the success criteria for vegetation cover are attained, whichever is later. Prior to commencement of construction, the ecologist will establish at least four permanent photographic documentation stations (i.e., one station near each corner of the bridge) to provide representative views of vegetation cover. The locations of the photographic documentation stations will be recorded using a GPS, and the direction of the photographs documented with a compass. The ecologist will prepare site maps with the photo-documentation points clearly marked for the project site. Prior to commencement of construction, the ecologist will photographically document the pre-project condition of the project site from each documentation station and estimate the vegetation cover at each station. Following implementation of the project, including any seeding or plant installation, a qualified ecologist will visit the site at least once in late spring to photographically document the postconstruction condition of the project site and estimate vegetation cover. The ecologist will report the results of these inspections (including the assessment of overall vegetation cover described in this measure and the assessment of invasive plants described in Mitigation Measure BIO-5) in a brief memo following each year’s site visit. Monitoring and maintenance may be extended if the success criteria are not attained by year 3. Remedial measures to be considered include, but are not limited to, supplemental planting or seeding, increased maintenance frequency, increased invasive plant removal activities, or alteration of maintenance strategies.

Implementation of MM BIO-2.1 through 2.4 would ensure that construction work within the stream banks would be confined to the period of April 15 to October 15; work areas would be delineated and flagged during construction activities; and temporary impact areas would be revegetated and restored to preconstruction conditions and monitored for a period of three years. Accordingly, project impacts would be reduced to less than significant with mitigation incorporated.

Work in and near riparian corridors could be indirectly impacted by spills of equipment fuels or oil entering the channel and cause degradation and contamination of the riparian habitat. The project

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would, however, be required to comply with the Construction General Permit and will have a Stormwater Pollution Prevention Plan, best management practices would be employed to prevent such spills from entering the riparian corridor (refer to discussion under Impact HYD-1 in Section

4.10 of this Initial Study).

Impact BIO-3: The project would not have a substantial adverse effect on state or federally protected wetlands through direct removal, filling, hydrological interruption, or other means. (Less than Significant Impact with Mitigation Incorporated)
Wetlands and other waters of the U.S./state are present within Penitencia East Channel in the form of intermittent stream/freshwater marsh. Jurisdictional wetlands in the channel bottom are supported by intermittent flows and presumably a high groundwater table and are dominated by non-native vegetation. Installation of the bridge and temporary work around the bridge would result in permanent and temporary impacts to the channel (refer to Figure 4.4-2). The bridge has, however, been designed to avoid the permanent loss of wetland or aquatic habitat due to the abutments or other structures.

The bridge would permanently shade 0.01 acres of intermittent stream/freshwater marsh.29 This habitat is naturally dynamic, seasonally altering its species composition, cover, and locations every year. The shading would occur in a gradient under the bridge with the sunniest area closest to the bridge edges and the shadiest area along the centerline of the bridge. These unpredictable factors would result in a shift in species composition, cover, and location. Nevertheless, the altered habitat is expected to function as an intermittent stream/freshwater marsh comparable to the existing conditions.

The temporary work area within the channel, where dewatering, creek diversion, and installation of falsework may occur, consists of a 40-foot buffer upstream and downstream of the proposed bridge, temporarily impacting up to 0.02 acres of intermittent stream/freshwater marsh .30 Temporary construction disturbance to the wetland habitat could lead to temporal loss of the soil stabilization functions that the wetland vegetation provides, causing erosion and sedimentation, which would be significant if not prevented.

Implementation of mitigation measures MM BIO-2.1 through BIO-2.4 would reduce impacts related to BIO-3 to a less than significant level.

Work in and near wetlands could be indirectly impacted by equipment fuels or oil entering the channel and cause degradation and contamination of the wetland habitat. The project would, however, comply with the Construction General Permit and will have a Stormwater Pollution Prevention Plan, best management practices would be employed to prevent such spills from entering the riparian corridor (refer to discussion under Impact HYD-1 in Section 4.10 of this Initial Study). 29 H.T. Harvey & Associates. Biological Resources Report. December 2023. Page 43. 30 Ibid.

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Impact BIO-4: The project would not interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites. (Less than Significant Impact)
Environmental corridors are segments of land that provide a link between different habitats while also providing cover. Development that fragments natural habitats (i.e., breaks them into smaller, disjointed pieces) can have a twofold impact on wildlife: first, as habitat patches become smaller they are unable to support as many individuals (patch size); and second, the area between habitat patches may be unsuitable for wildlife species to traverse (connectivity).

The project site is almost entirely developed and is situated within a dense urban development. The Penitencia East Channel does not provide an important movement pathway for aquatic or terrestrial wildlife species, as the channel dead-ends at the rail line 0.2 miles upstream of the site. Any animals attempting to move along the stream in an upstream direction would encounter this dead-end, rather than being able to move through the project area to reach higher-quality habitat upstream. Similarly, there are no source populations of aquatic or terrestrial animals upstream that would be moving downstream through the project area.31 As a result, the proposed development would not result in the fragmentation of natural habitats, and any common, urban-adapted wildlife species that currently move through the project site would still be able to do so following project construction. Thus, the project would not interfere with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors in the site vicinity, and impacts would be less than significant.

Impact BIO-5: The project would not conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance. (Less than Significant Impact)
The Tree and Planting Ordinance of the City of Milpitas protects significant trees, as defined by the Ordinance, including heritage trees, throughout the City. The proposed project would remove approximately 20 trees, including a number of protected trees. All the trees in the project area are ornamental and non-native including shamel ash and eucalyptus trees, with diameters ranging from three inches to 37 inches or more. All tree removal and replacement would be completed in compliance with the City’s Tree Maintenance and Protection Ordinance, which states to plant at least two (2) trees for every one (1) protected tree removed, thereby ensuring the project would offset the loss of existing trees and reduce impacts from tree removal to a less than significant level. The replacement trees shall be commensurate with the size of the tree being removed, as determined by the Director of Planning or his or her designee.
31 In the “source-sink” ecological model, the source is a high quality habitat that allows a species’ population to increase (i.e. births + immigration > deaths + emigration), leading to a surplus of the species in question.