Agenda packet — Milpitas City Council, June 18, 2024 (part 3 of 6)

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22 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.

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23 ___ 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. ___ 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

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24 ___ Cyber Liability Insurance with limits not less than $1,000,000 per claim.

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

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25 _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. _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.

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26 Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

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

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

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

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

Subcontractors:

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

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to the extent they apply to the scope of the sub- subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request.

Verification of Coverage:

Contractor or Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor or Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances
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.

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27 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:

Each insurance policy required above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve the Santa Clara Countywide Food Recovery Program Memorandum of Understanding (Staff Contact: Christian Di Renzo, Public Works Director, 408- 586-2602; and Elaine Marshall, Deputy Public Works Director, 408-586-2603) Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 6/18/2024
Recommendation: Authorize the City Manager to sign a Memorandum of Understanding between the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee member jurisdictions establishing ongoing management and operation of the edible food recovery program to comply with the requirements of Senate Bill 1383 (California’s Short-Lived Climate Pollutant Reduction Strategy).

BACKGROUND:

California Senate Bill 1383 (SB 1383), which was signed into law in 2016, aims to reduce greenhouse gas emissions by significantly reducing organic waste disposal in landfills and addressing food insecurity by “rescuing” surplus food intended for landfill. SB 1383, along with mandated organics/food scraps collection, also requires jurisdictions to establish edible food recovery programs. According to the Department of Resources, Recycling and Recovery (CalRecycle), California sends 11.2 billion pounds of food to landfills annually, some of which is still fresh enough to have been recovered to feed people, while millions of Californians experience food insecurity. SB 1383 requires jurisdictions to establish programs to recover edible food that would otherwise be sent to landfills and that the programs provide this edible food to those experiencing food insecurity. The state goal is to reduce edible food going to landfill by 20%.

In November 2021, the City Council adopted Ordinance No. 48.22, amending Chapter 200 (Solid Waste Management) of Title V of the Milpitas Municipal Code, as required by SB 1383. The ordinance includes a section regarding edible food recovery requirements. All Santa Clara County jurisdictions adopted similar ordinances to ensure uniform requirements throughout the county. This simplifies the implementation of SB 1383 for businesses with locations in multiple cities and food recovery organizations that provide services in Santa Clara County.

The City of Milpitas is a member of the Technical Advisory Committee (TAC), which advises the Santa Clara County Recycling and Waste Reduction Commission on countywide solid waste and recycling issues. The TAC is comprised of all Santa Clara County cities and the County of Santa Clara. Since all jurisdictions must comply with SB 1383 requirements, all Santa Clara County jurisdictions use the TAC forum to work together to develop a countywide food recovery program and to share the costs of the program. Doing so leverages economies of scale, allows for efficiencies, and provides programmatic consistency across the county.

The resulting countywide food recovery program began implementation in 2022, the year SB 1383 became effective. An initial Memorandum of Understanding (MOU) was developed to fund the cost of the countywide edible food recovery program for a one-year period from July 1, 2023 to June 30, 2024. This initial MOU was executed by the City Manager, with the Milpitas share of program costs funded from the Public Works Department’s FY 2023-24 budget. This initial MOU was a temporary solution to allow Santa Clara County jurisdictions more time to craft an ongoing Food Recovery Program, operating structure, and cost share.

This past year, the TAC evaluated multiple long-term funding mechanism and organizational structure options within the County and determined the current funding mechanism and organizational structure under the initial one-year MOU is the most cost-effective and efficient manner for participating jurisdictions to jointly administer and fund the food recovery program. The TAC also determined an MOU continues to be the most appropriate governance document to memorialize the terms and conditions, and to keep the successful countywide food recovery program operating.

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ANALYSIS:

In 2023, all Santa Clara County TAC jurisdictions finalized the Countywide Food Recovery Program and drafted MOU language for an “evergreen” program, meaning the MOU and its terms and conditions would remain in effect until the jurisdiction withdraws from the agreement or the TAC terminates the agreement using the TAC Memorandum of Agreement organizational voting process. The resulting long-term MOU to be executed by all jurisdictions with an effective date of July 1, 2024 is attached (Attachment A). This document was discussed in depth by each jurisdictions’ program staff and reviewed by legal counsel/City Attorney’s offices from all participating jurisdictions. The long-term MOU formalizes the commitment of participating jurisdictions to make annual contributions to fund the proportional costs of the Countywide Food Recovery Program. Jurisdictions may also use the long-term MOU to contribute additional funds for optional program enhancements that will be considered and approved by the TAC annually as part of its annual workplan and budget process. Funding contributions will be collected by the County as the current Fiscal Agent for the TAC.

The overall Countywide Food Recovery Program budget will not increase by more than ten percent (10%) from the prior year budget without prior approval by the County of Santa Clara Recycling and Waste Reduction Commission during its annual budget approval process. Milpitas’s share of Program costs is $23,842 for FY 2024-25 and $25,705 for FY 2025-26. The MOU specifies the terms and timing for jurisdictions to withdraw from the MOU and Program participation.

Per SB 1383, certain commercial edible food generators (e.g., wholesale food vendors, large grocery stores/supermarkets, large restaurants, large hotels with food facilities, large venues/events) are required to enter into contracts or written agreements with food recovery organizations or services that will collect edible food for recovery. Milpitas has 113 such food recovery generators. This MOU provides for base program services through the Countywide Food Recovery Program that include:
•Reviewing and updating the lists of generators
•Providing requirements for large events within each jurisdiction •Providing information and data for inclusion in annual reports to CalRecycle •Providing education and outreach to generators
•Coordinating with food recovery organizations to compile reports •Conducting inspections and monitoring of generators and food recovery organizations •Maintaining a list of food recovery organizations and services •Preparing an annual report on program activities
•Connecting generators with food recovery organizations In addition to the base program services, jurisdictions provide contributions toward infrastructure enhancements. Examples include grants to increase the food recovery capacity of food recovery organizations, and food waste prevention classes to provide food recovery tips and best practices.

Establishing a food recovery program is an SB 1383 mandate, and participating in the countywide program is the best option for the City of Milpitas to be in compliance. By working together, jurisdictions realize cost savings through economies of scale, are a part of a consistent countywide program, and take advantage of program efficiencies. All jurisdictions in Santa Clara County are participating in this food recovery program and paying into the program based on their number of food recovery generators. The Santa Clara County food recovery program is very successful and was showcased by CalRecycle as an example of how other regions in California might want to organize.

POLICY ALTERNATIVE(S):

Alternative 1: Do not participate in the MOU and create a standalone food recovery program for the City of Milpitas.

Pros: Creating an individual food recovery program allows for more customization and flexibility.

Cons: The costs for creating a standalone program would require more staff resources and local costs would be much higher than the cost of participating in the countywide program. If the City did not participate in the

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countywide food recovery program, and did not establish its own food recovery program, the City would not be in compliance with SB 1383 and the State could impose daily fines until compliance was met.

Reason for Not Recommending: The City of Milpitas does not have the capacity, specialized knowledge, or funds required to create and operate a food recovery program. By participating in a coordinated effort with other participating cities in the County, Milpitas is able to take advantage of economies of scale and consistent services with surrounding cities. It is in the best interest of the City to continue to participate in the program.

FISCAL IMPACT:

The City of Milpitas received $217,999 in non-competitive grant funding from CalRecycle for SB 1383 compliance activities and will use this grant funding for the next two fiscal years to fund the City’s portion of the Countywide Food Recovery Program. Per the MOU, the Countywide Food Recovery Program will prepare a two-year budget. For FY 2024-25, Milpitas’s contribution will be $23,842, and for FY 2025-26 it will be $25,705 for a total of $49,547. Unless additional grant funding is made available by CalRecycle, funding for Program participation beyond FY 2024-25 will come from the Solid Waste Fund (Fund 280).

California Environmental Quality Act (CEQA):

The item is exempt from CEQA as there will be no physical change to the environment.

RECOMMENDATION:

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

Attachment(s):

Attachment A: Memorandum of Understanding Among Local Public Agencies in Santa Clara County for Countywide Food Recovery Program

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1 MEMORANDUM OF UNDERSTANDING

AMONG LOCAL PUBLIC AGENCIES

IN SANTA CLARA COUNTY

FOR COUNTYWIDE FOOD RECOVERY PROGRAM

This Memorandum of Understanding (“MOU”) is entered into by and between the cities of Cupertino, a municipal corporation of the state of California; Gilroy, a municipal corporation of the state of California; Los Altos, a municipal corporation of the state of California; Milpitas, a municipal corporation of the state of California; Morgan Hill, a municipal corporation of the state of California; Mountain View, a municipal corporation of the state of California; Palo Alto, a municipal corporation of the state of California; San José, a municipal corporation of the state of California; Santa Clara, a municipal corporation of the state of California; Sunnyvale, a municipal corporation of the state of California; the West Valley Solid Waste Management Authority (on behalf of the cities of Campbell, Monte Sereno, Saratoga, and the Town of Los Gatos); the Town of Los Altos Hills, a municipal corporation of the state of California; and the County of Santa Clara, a political subdivision of the State of California; collectively “Parties” or individually as a "Party."

RECITALS

A. The signatory Parties are also “PARTIES” to the Memorandum of Agreement (“MOA”) entered into on June 14, 2013 for the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee (“TAC”), which is a separate Committee created to assist the County of Santa Clara Recycling and Waste Reduction Commission (“RWRC” or “Commission”) that advances the interests of Party Jurisdictions by performing technical and policy review to inform parties and advise the Commission on solid waste management issues, and bring together varied expertise and viewpoints for planning and implementing the Commission approved annual workplan and budget. The MOA, which remains in effect, is attached hereto and incorporated herein by reference as Exhibit B.

B. California’s Short-Lived Climate Pollutant Reduction law (SB 1383, Lara, Chapter 395, Statutes of 2016) establishes methane reduction targets for California, including a target to increase recovery by 20 percent of currently disposed edible food for human consumption by January 1, 2025.

C. To meet the mandated statewide goal, SB 1383 requires each Jurisdiction in California to establish and monitor a robust food recovery program, which will strengthen the relationships between commercial edible food generators and food recovery organizations within their communities, requiring certain food businesses to send the maximum amount of edible food they would otherwise dispose to food recovery organizations and/or services.

D. The Parties have previously agreed to jointly administer and fund the cost of a countywide edible Food Recovery Program (the “Program”) through the Memorandum of Understanding Among Local Public Agencies in Santa Clara County for Food Recovery Program Costs entered into and covering the time period of July 1, 2023 to June 30, 2024 (“Former MOU”) to satisfy their respective obligations under SB 1383 and the corresponding regulations. The Former MOU is attached hereto as Exhibit C.

E. The Parties desire to execute this MOU to ensure ongoing operation of the countywide food recovery program to provide for their respective share of costs for the Program.

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2 F. The West Valley Solid Waste Management Authority (“Authority”) was established by the cities of Campbell, Monte Sereno, Saratoga, and the Town of Los Gatos (collectively referred to as the “Member Agencies”), pursuant to the provisions of the Joint Exercise of Powers Act (Title 1, Division 7, Article1, Section 6500 et seq. of the California Government Code) to arrange for and manage the waste reduction, collection, reuse, disposal, recycling, and diversion of discarded materials originating in the participating municipalities; and in furtherance of that purpose, the Member Agencies and the Authority have entered into agreements authorizing the Authority to act as the representative of the Member Agencies in the Food Recovery Program.

NOW, THEREFORE, the Parties agree as follows:

SECTION 1. PURPOSE OF THE MOU

The purpose of this MOU is to establish a system of:

1) Ongoing management and operation of the Food Recovery Program. 2) Payment by the Parties for their share of the costs for implementation of the Program.

SECTION 2. EFFECTIVE DATE

This MOU shall be effective on July 1, 2024 (“Effective Date”), shall supersede the Former MOU, and shall automatically renew each year for all Parties, unless a Party withdraws, in accordance with Section 20 (Withdrawal From MOU) and subject to a Party’s annual appropriations of funds.

SECTION 3. DEFINITIONS
The original 2013 Memorandum of Agreement entered into between the parties (and as may be amended from time to time) defined in detail the duties of the TAC Administrator, Contracting Agent, and Fiscal Agent, and those definitions from the MOA shall apply to this MOU. For ease of reference, those definitions are summarized below.

3.1 The TAC Administrator provides administration and management services to the TAC and carries out the annual workplan.

3.2 The Contracting Agent executes contracts with outside contractors, including the Administrator and the Fiscal Agent that have been requested and approved by the Implementation Committee.

3.3 The Fiscal Agent serves as the treasurer of the countywide funds and is responsible for collecting the Solid Waste Planning Fee from all solid waste disposal facilities and non-disposal facilities located within Santa Clara County.

3.4 The Program Manager is the entity contracted by the Contracting Agent on behalf of the RWRC to implement the Santa Clara County Food Recovery Program.

Other terms used in this MOU that relate to the Food Recovery Program (e.g., including but not limited to the term “Jurisdictions”) are used as defined in SB 1383 and any implementing regulations, as may be amended from time to time.

SECTION 4. RESPONSIBILITIES OF THE TAC ADMINISTRATOR AND CONTRACTING AGENT

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3 5.1 The TAC Administrator will provide administration and management of the Program. These duties include overseeing the work of the Program, development of the biennial budget, and inclusion of the Program in the annual work plan and budget. The costs to perform these duties will be included in the annual work plan and budget.

5.2 Contracts executed by the Contracting Agent with the Program, TAC Administrator and Fiscal Agent will be based on the approved budget for the Program. The Contracting Agent will provide an invoicing system to pay the Program Manager, TAC Administrator, and Fiscal Agent. The Contracting Agent shall provide the TAC Administrator with the proposed costs to perform these duties. The signatory Parties to this MOU (except when acting in their authorized capacities as Contracting Agent, TAC Administrator, and Fiscal Agent) are not direct parties to the third-party contracts entered into by those agents.

SECTION 5. RESPONSIBILITIES OF THE FISCAL AGENT

The Fiscal Agent will collect and receive funds from the Parties for implementation of the Countywide Food Recovery Program. The Countywide Food Recovery Program Funds will be segregated from the Countywide Solid Waste Program Funds in separately numbered and coded accounts that are readily identifiable as those containing Countywide Food Recovery Program Funds or Countywide Solid Waste Program Funds. The Fiscal Agent shall not expend, use or transfer any funds except in accordance with the annual work plan and budget.

The Fiscal Agent shall provide the TAC Administrator with the proposed costs to perform these duties.

SECTION 6. RESPONSIBILITIES OF THE PROGRAM MANAGER

The Program Manager will implement the Santa Clara County Food Recovery Program as described in Exhibit A.

SECTION 7. RESPONSIBILITIES OF THE PARTIES

The Parties will share costs of implementing the Program as described in Section 9 and undertake the duties assumed by the Jurisdictions as described in Exhibit A.

SECTION 8. BIENNIAL BUDGET

The TAC Administrator will prepare a biennial (two-year) budget that encompasses costs for the Program and Program Manager, the TAC Administrator, the Contracting Agent/Administration, and the Fiscal Agent.

Approval of the biennial budget shall follow the annual work plan and budget process as specified in the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee MOA.

SECTION 9. FUNDING

9.1 The Parties agree to share costs of the Program based on the number of edible food generators, as defined by the California Code of Regulations (14 CCR Section 18982) operating in their Jurisdiction on an annual basis, according to the following formula: Party’s Annual Share = (Total Budgeted Cost for Year

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4 ÷ Total Number of Edible Food Generators Under MOU) x Number of Edible Food Generators in Party’s Jurisdiction.

The Parties agree to pay annually for the costs identified in the biennial budget and approved through the annual work plan and budget process as specified in the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee MOA.

9.2 The initial Program budget will be based on the Fiscal Year 2024 allocation including costs for the Fiscal Agent, totaling THREE HUNDRED AND TEN THOUSAND DOLLARS ($310,000). No costs for TAC Administrator or Contracting Agent are included in the initial Program budget. Should cost recovery for the TAC Administrator or Contracting Agent be required in the future, these will be proposed during the annual work plan and budget process.

9.3 The Parties acknowledge that the Program Manager will evaluate the costs per Jurisdiction annually based on the number of generators operating within each Jurisdiction. Based on this evaluation, a cost adjustment will be projected to the second year of the biennial budget (see Section 8 above). The overall Program budget will not increase by more than TEN PERCENT (10%) of the prior year’s Program budget without prior approval by the RWRC.

9.4 The Fiscal Agent will annually submit to the Parties an invoice for the amounts due under this MOU by May 15th of each year. Each Party will make their payment to the Fiscal Agent based on the invoice amount within ninety (90) calendar days of receipt.

9.5 The Fiscal Agent will ensure that the Santa Clara County Food Recovery Program Fund account is segregated from the Solid Waste Program Fee Fund account managed pursuant to the TAC MOA.

9.6 Should any unspent funds remain in the Santa Clara County Food Recovery Program Fund account at the end of the fiscal year, disposition of those funds will be decided by the RWRC through the annual work plan and budget process, which could include: retaining surplus funds as a reserve, crediting Jurisdictions toward future payment allocations, dedicating funding to food recovery infrastructure, and providing supplemental food recovery outreach and education or other food recovery program activities.

9.7 Jurisdictions wishing to contribute additional funds for the edible food recovery enhancement program, implemented by the Program Manager, may elect to do so during the annual work plan and budget process. Any Jurisdiction opting into any voluntary enhancement program shall do so at its own discretion and at its own cost. The Fiscal Agent will include the additional enhancement program funding formally selected by the Jurisdiction in the annual invoice submitted to each Party by May 15th of each year.

9.8 In the event of a CalRecycle Implementation Schedule for a food recovery capacity shortfall identified during a Santa Clara County Edible Food Recovery Capacity Assessment, the Program budget may increase by more than TEN PERCENT (10%) of the prior year’s Program budget if needed to fund necessary capacity improvements as outlined in the CalRecycle Implementation Schedule, following prior approval of the budget increase by the RWRC.

SECTION 10. BOOKS AND ACCOUNTS

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5 The Fiscal Agent will keep complete and accurate financial records related to accomplishing the purposes of this MOU. Upon reasonable notice to the Fiscal Agent, any Party to this MOU may inspect the financial records related to this MOU.

SECTION 11. FURTHER ASSURANCES

Each Party will adopt, execute, and make any and all further assurances, documents, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the Parties ’performance of their obligations under this MOU.

SECTION 12. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants to all other Parties as follows:

12.1 Authority: Each Party has the full legal right, power and authority under the laws of the State of California to enter into this MOU and to carry out all of its obligations herein.

12.2 Due Execution: Each Party’s representatives who sign this MOU are duly authorized to sign and bind their respective agency.

12.3 Valid, Binding, and Enforceable Obligations: This MOU has been authorized and executed by each Party and constitutes the legal, valid, and binding agreement of the Parties, and is enforceable according to its terms.

SECTION 13. REMEDIES NOT EXCLUSIVE

No remedy herein conferred upon or reserved in this MOU is exclusive of any other remedy, and each such remedy shall be cumulative and shall be in addition to every other remedy provided hereunder or hereafter existing in law or in equity or by statute or otherwise, and all remedies may be exercised without exhausting and without regard to any other remedy.

SECTION 14. INDEMNIFICATION

In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the Parties pursuant to Government Code Section 895.6, the Parties agree that all losses or liabilities incurred by a Party shall not be shared pro rata but, instead, the Parties agree that, pursuant to Government Code Section 895.4, each of the Parties hereto shall fully indemnify and hold each of the other Parties, their officers, board members, employees , and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying Party, its officers, employees , or agents, under or in connection with or arising out of any work , authority, or Jurisdiction delegated to such Party under this MOU (including but not limited to work engaged in or contracts entered into by a Party acting in their capacity as Contracting Agent, Program Manager, TAC Administrator, or Fiscal Agent.). No Party, nor any officer, board member, or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of any other Party hereto, its officers, board members, employees, or agents, under or in connection with or arising out of any work

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6 authority or Jurisdiction delegated to such other Party under this MOU, as indicated in this Section. The obligations set forth in this paragraph will survive termination and expiration of this MOU.

SECTION 15. SEVERABILITY

The provisions of this MOU shall be severable, and if any clause, sentence, paragraph, provision or other part shall be adjudged by any court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this MOU will be valid and binding on the Parties.

SECTION 16. AMENDMENTS

This MOU may only be amended by a written instrument signed by the Parties.

SECTION 17. COUNTERPARTS

This MOU may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

SECTION 18. USE OF ELECTRONIC SIGNATURES

Unless otherwise prohibited by law, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a writing as set forth in Evidence Code Section 1550. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the Parties. Should any Jurisdiction not permit electronic signatures only their copy of the MOU must be signed in the conventional manner.

SECTION 19. INTERPRETATION, PRIOR AGREEMENTS AND AMENDMENTS.

This MOU, including all Exhibits attached hereto, represents the entire understanding of the Parties as to those matters contained herein. In the event that the terms specified in any of the Exhibits attached hereto conflict with any of the terms specified in the body of this MOU, the terms specified in the body of this MOU shall control. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This MOU may be modified only by a written amendment duly executed by the Parties to this MOU. This MOU is intended to supplement the original MOA and does not replace the original MOA. The MOA shall remain in effect and to the extent that there are any contradictions between this MOU and the original MOA, the provisions in this MOU shall prevail.

SECTION 20. WITHDRAWAL FROM MOU

No individual Party may withdraw from this Agreement prior to July 1, 2025. Any party wishing to withdraw on or after July 1, 2025 must provide notice to the Contracting Agent on or before January 15 of each year. The Parties acknowledge that the Contracting Agent and each individual Party may recalculate Agreement costs pro rata in the event of any withdrawal from this Agreement and that this time is required in order to allow each remaining Party and the Contracting Agent to amend their respective budgets if needed. Any withdrawing Party must make full payments through the end of the-then current term ending

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7 on June 30. In no event shall this clause to be interpreted to prevent all Parties by unanimous mutual consent from withdrawing from this Agreement.

SECTION 21. NO LEGAL RELATIONSHIP

By entering into this MOU, the Parties are neither forming, nor do they intend to form a partnership, agency, or any other legal entity relationship. No Party is authorized to bind or to act as the agent or legal representative of the other Party for any purpose, and neither Party is granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of any other Party.

SECTION 22. GOVERNING LAW, VENUE

This MOU has been executed and delivered in, and shall be construed and enforced in accordance with, the laws of the State of California. Proper venue for legal action regarding this MOU shall be in the County of Santa Clara.

MEMORANDUM OF UNDERSTANDING

AMONG LOCAL PUBLIC AGENCIES

IN SANTA CLARA COUNTY

FOR COUNTYWIDE FOOD RECOVERY PROGRAM

IN WITNESS HEREOF, the Parties have executed the MOU as of the last date set forth below:

City of Cupertino – City Manager Approval as to form, Cupertino City Attorney
Date: Date:

City of Gilroy- City Manager Approval as to form, Gilroy City Attorney
Date: Date:

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8 City of Los Altos – City Manager Approval as to form, Los Altos City Attorney
Date:

Date:

Town of Los Altos Hills – Assistant to the
Town Manager
Approval as to form, Los Altos Hills
Town Attorney
Date:

Date:

City of Milpitas – City Manager Approval as to form, Milpitas City Attorney
Date:

Date:

City of Morgan Hill, as a Party and as
Contracting Agent and TAC
Administrator
Approval as to form, Morgan Hill City
Attorney
Date:

Date:

City of Mountain View- Acting Public
Works Director
City of Mountain View – Finance and
Administrative Services Director
Date:

Date:

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9 City of Mountain View- City Manager Approval as to form, Mountain View Senior Assistant City Attorney
Date:

Date:

City of Mountain View-Assistant City
Clerk

Date:

West Valley Solid Waste Management
Authority (on behalf of the cities of
Campbell, Monte Sereno, Saratoga, and
the Town of Los Gatos) -Executive
Director
Approval as to form, West Valley Solid
Waste Management Authority General
Counsel

Date:

City of Santa Clara - City Manager Approval as to form, Santa Clara City Attorney

Date:

City of Palo Alto – City Manager Approval as to form, Palo Alto Assistant City Attorney
Date:

Date:

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10 City of Sunnyvale – City Manager Approval as to form, Sunnyvale Interim City Attorney

Date:

County of Santa Clara, as a Party and as
Fiscal Agent - Chief Operating Officer
Approval as to form and legality, Santa
Clara County Deputy County Counsel

Date:

City of San José Approval as to form, San José City
Attorney

Date:

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1 EXHIBIT A

PROGRAM OVERVIEW

This document describes the Santa Clara County Food Recovery Program, serving as the food recovery program (“Program”) on behalf of all jurisdictions (“Jurisdictions ”) within the County, coordinating with the Jurisdictions performing their own enforcement. The details of the Program conform to the California Code of Regulations (14 CCR Section 18995.2 (f)(8), 14 CCR Section 18991.2 14 CCR Section 18991.1).

I. PURPOSE
The Countywide Program benefits the Jurisdictions by alleviating the need for duplicative staff, cost analysis, capacity assessment, expenditures for infrastructure, labor, administration, and record keeping for the edible food recovery activities in their Jurisdiction. Additionally, this approach creates one uniform, standardized, and coordinated effort throughout the incorporated and unincorporated areas of Santa Clara County.

II. RESPONSIBILITIES
Jurisdictions
A. Shall develop a method to accept and keep records of written complaints, including anonymous complaints, regarding an entity that may be potentially non-compliant. Full details of the complaint will be communicated to the Program Manager within 10 days of receipt.

B. Shall refer all questions received about the Program portions of SB 1383 implementation to the Program Manager within 10 business days. Jurisdictions should include the Program Manager in all communications to generators or food recovery organizations or services.

C. Shall maintain access to the shared database program to stay in compliance with the intent and structure of the Implementation Record which shall follow the format and elements as promulgated by CalRecycle, or other relevant statutory or administrative requirements.

D. On an annual basis, Jurisdictions shall review and provide feedback to the Program Manager on inspection protocol, triggers, and enforcement processes. Cities and unincorporated County are encouraged to follow the procedures and stay within the suggested timeline for enforcement action set forth in the Monitoring Procedures document.

E. When informed by the Program Manager, Jurisdictions will work with the Program Manager in carrying out enforcement action with edible food generators or food recovery organizations or

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2 services not in compliance. The Program Manager will recommend edible food generators or food recovery organizations or services for enforcement action, and the enforcement action taken will be at the discretion of the Jurisdiction. All enforcement action will be tracked in the Program’s shared database, so it is readily available to the Program Manager, Jurisdictions, and can become part of the Implementation Record.

F. Jurisdictions will determine what large events are happening in their jurisdiction. Within 10 days of an applicant being issued a permit for a new large event, as defined below, the Jurisdiction will notify the Program about the event, and share contact information for the event organizer. This is only for large events that meet the CalRecycle threshold for the definition:
“Large Event” means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. By September 1 of each year, Jurisdictions will review the large events included in the shared database of regulated entities, to update the database to ensure no recurring events have been missed.

G. Shall work with the Program Manager on any related issues requiring Program assistance or lead in resolving the issue(s) related to complaints and/or noncompliance for any edible food generator or Food Recovery Organization or Service.

Program Manager

The Program Manager shall responsibly execute the management of the Santa Clara County Food Recovery Program (the Program). The Program Manager:

A. Shall develop and coordinate a standardized and uniform method to comply with California Code of Regulations, Title 14, Division 7, Chapter 12, “Short-Lived Climate Pollutants.” The Program Manager will operate within the Jurisdiction’s boundaries and replace the need for the Jurisdiction to create such a program on its own.

B. In the event of a CalRecycle Implementation Schedule for a food recovery capacity shortfall identified during a Santa Clara County Edible Food Recovery Capacity Assessment, The Program will work to develop the Implementation Schedule with CalRecycle and manage the effort to fund necessary capacity improvements as outlined in the Schedule. Additional Base Program costs beyond the allowable 10% yearly increase may be needed. The RWRC will review and approve or deny any needed budget changes. Funds will be collected based on the number of edible food generators and their auxiliary sites in each Jurisdiction.

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3 C. Shall conduct a review, each fiscal year, of potential new edible food generators, to ensure that as businesses open in Santa Clara County the appropriate regulated entities are added to the lists. Closing businesses will be identified during the reporting process and be eliminated from the lists.

D. Shall provide the Jurisdictions with the information and data necessary for the Jurisdictions to make their required reports to the California Department of Resources, Recycling and Recovery (“CalRecycle”).

E. Shall retain records of inspections in the Jurisdictions for a minimum of five (5) years.

F. Shall notify the Jurisdictions promptly about any related issues that require the Jurisdictions ’ assistance or to request the Jurisdictions lead in resolving the issue(s) that arise related to non- compliance.

G. Shall fulfill and endeavor to exceed the annual education requirement for the Jurisdictions and provide the data needed for Jurisdictions to complete required CalRecycle reports.

H. Solicit required Food Recovery Reports from generators and Food Recovery Organization/Services, compile and provide the results to Jurisdictions for inclusion in the Implementation Records, and to Santa Clara County for use in future Capacity Planning efforts.

I. Shall conduct inspections and monitoring in compliance with CalRecycle expectations for Edible Food Generators and Food Recovery Organizations and Services.

J. The Program shall supply appropriate content for a web site, including a list of Food Recovery Organizations and Services (to be updated at least annually) and be accessible to Edible Food Generators.

K. The Program shall represent the interests of the Program with other entities, counties, and CalRecycle.

L. The Program will develop procedures and timelines for cities and unincorporated County to encourage uniformity in enforcement, which the Cities and County would be encouraged to follow.

M. The Program shall create reports about Program activities each year in September, ahead of the budgeting process for the next fiscal year. These reports shall include a narrative about the Food Recovery Program activities, statistics, total number of pounds of food recovered as reported by

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4 Edible Food Generators and Food Recovery Organizations (“FROs”), and any additional information needed by the Jurisdictions. Statistics about food waste prevention and food recovery in Santa Clara County will be shared publicly.

Edible Food Recovery Enhancements Program
The Edible Food Recovery Enhancements Program are any activities, annually identified by the Program Manager, that the Program Manager will undertake to ensure efficient food recovery and food waste prevention should the Jurisdictions choose to fund the chosen projects. Projects may include, but are not limited to, strategic capacity enhancements, projects that promote the efficient recovery of surplus food or the prevention of surplus food, as well as direct support of ongoing recovery activities, subject to approval of the RWRC.

Technical Advisory Committee Contracting Agent
A. The Contracting Agent will execute a contract with the Program Manager, chosen by the TAC, for the services outlined in the responsibilities above. The Contract will go into greater detail to ensure that all SB 1383 regulatory imperatives are handled by the Program.

B. The Contracting Agent will set up an invoicing system to pay the Program for the responsibilities outlined above.

III. ENFORCEMENT RESPONSIBILITIES FOR JURISDICTIONS
Each Jurisdiction is responsible for working with the Program on enforcement actions. Although the Jurisdiction is ultimately responsible for enforcement, the Program will support the process by drafting enforcement notices and necessary documents and by providing relevant information about previous inspections and attempts to support compliance. The Program will identify those businesses that need to be evaluated for enforcement action and will work with a Jurisdiction to ensure that CalRecycle compliant documentation is maintained.

IV. RECORDKEEPING AND REPORTING
The Program will complete all the record keeping tasks necessary for the Food Recovery Program portions of SB 1383, including records necessary for the Implementation Record. All necessary records will be stored digitally within 5 days of creation, and Jurisdictions will have real-time access to all these records.

The Program shall create a very brief report about Program activities at the end of each fiscal year.

Most programmatic information will be shared in September in the annual report.

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DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7

MEMORANDUM OF

UNDERSTANDING AMONG LOCAL

PUBLIC AGENCIES IN

SANTA CLARA COUNTY

FOR FOOD RECOVERY PROGRAM COSTS
SECTION 1. OVERVIEW
This Memorandum of Understanding (“MOU”) is between the cities of Cupertino, Gilroy, Los Altos, Milpitas, Morgan Hill, Mountain View, Palo Alto, San José, Santa Clara, and Sunnyvale; the town of Los Altos Hills; the County of Santa Clara; and the West Valley Solid Waste Management Authority on behalf of its member agencies, the cities of Campbell, Monte Sereno and Saratoga; and town of Los Gatos; collectively “Parties” or individually as a "Party." SECTION 2. RECITALS
WHEREAS, the signatory Parties are also “PARTIES” to the Memorandum of Agreement for the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee, which is a Committee of the County of Santa Clara Recycling and Waste Reduction Commission that advances the interests of Party jurisdictions by performing technical and policy review to inform parties and advise the Commission on solid waste management issues, and bring together varied expertise and viewpoints for planning and implementing the Commission approved annual workplan and budget;
WHEREAS, the Parties have previously agreed to jointly fund the cost of a countywide edible food recovery program to satisfy their respective obligations under SB 1383 (2016) and the corresponding regulations;
WHEREAS, the County of Santa Clara is the Fiscal Agent for the Technical Advisory Committee (TAC) to the Santa Clara County Recycling and Waste Reduction Commission and the City of Morgan Hill is the Administrator and Contracting Agent for the TAC; WHEREAS, the City of Morgan Hill, as Program Administrator and Contracting Agent, has contracted with Joint Venture Silicon Valley to implement and manage the countywide Food Recovery Program (“Program”) for Fiscal Year 2023/24;
WHEREAS, the Parties desire to execute this MOU to provide for their respective share of costs for the Program;
NOW, THEREFORE, for good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows:

Page 300 of 918 ends

DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7 SECTION 3. PURPOSE OF THE MOU
The purpose of this MOU is to establish a means of requiring:

Payment by the Parties for their share of the costs for implementation of the Program.

SECTION 4. EFFECTIVE DATE
This MOU shall be effective upon execution of this MOU by all Parties (“Effective Date”).

SECTION 5. PAYMENTS UNDER THIS MOU
For purposes of the Program, the County of Santa Clara is the Fiscal Agent and the City of Morgan Hill is the TAC Administrator and Contracting Agent, as specified in the Santa Clara County Recycling and Waste Reduction Technical Advisory Committee MOA.

The Parties agree to share costs for the services as described in Exhibit A of this MOU.

The County of Santa Clara will, within thirty (30) days of the Effective Date of this MOU, submit to the other Parties an invoice for the amounts due under the MOU. Each party will make their payment to the County of Santa Clara based on the invoice amount.

SECTION 6. RECORDS AND ACCOUNTS
The County of Santa Clara will keep complete and accurate financial records related to accomplishing the purposes of this MOU. Upon reasonable notice to the County of Santa Clara, any Party to this MOU may inspect the financial records related to this MOU.

SECTION 7. FURTHER ASSURANCES
Each Party will adopt, execute, and make any and all further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the Parties’ performance of their obligations under this MOU.

SECTION 8. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to all other Parties as follows:

Authority: Each Party has the full legal right, power and authority under the laws of the State of California to enter into this MOU and to carry out all of its obligations herein.

Due Execution: Each Party’s representatives who sign this MOU are duly authorized to sign and bind their respective agency.

Page 301 of 918 ends

DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7 SECTION 9. REMEDIES NOT EXCLUSIVE
No remedy herein conferred upon or reserved in this MOU is exclusive of any other remedy, and each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise, and all such remedies may be exercised without exhausting and without regard to any other remedy.

SECTION 10. INDEMNIFICATION
In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the Parties pursuant to Government Code Section 895.6, the Parties agree that all losses or liabilities incurred by a Party shall not be shared pro rata but, instead, the Parties agree that, pursuant to Government Code Section 895.4, each of the Parties hereto shall fully indemnify and hold each of the other Parties, their officers, board members, employees , and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying Party, its officers, employees , or agents, under or in connection with or arising out of any work , authority, or jurisdiction delegated to such Party under this MOU. No Party, nor any officer, board member, or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of any other Party hereto, its officers, board members, employees, or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other Party under this MOU. The obligations set forth in this paragraph will survive termination and expiration of this MOU.

SECTION 11. SEVERABILITY
The provisions of this MOU shall be severable, and if any clause, sentence, paragraph, provision or other part shall be adjudged by any court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this MOU will be valid and binding on the Parties.

SECTION 12. AMENDMENTS
This MOU may only be amended by a written instrument signed by the Parties.

SECTION 13. COUNTERPARTS
This MOU may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

SECTION 14. USE OF ELECTRONIC SIGNATURES
Unless otherwise prohibited by law, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by

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DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7 facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the City of Morgan Hill. For the purposes of this agreement, the approved methods of signing shall be via DocuSign or original ink signature signed in counterpart and scanned over to the CITY via electronic mail.

SECTION 15. INTERPRETATION, PRIOR AGREEMENTS AND AMENDMENTS.

SECTION 16. NO LEGAL RELATIONSHIP
By entering into this MOU, the Parties are neither forming, nor do they intend to form a partnership, agency, or any other legal entity relationship. No Party is authorized to bind or to act as the agent or legal representative of the other Party for any purpose, and neither Party is granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of any other Party.

SECTION 17. GOVERNING LAW, VENUE
This MOU has been executed and delivered in, and shall be construed and enforced in accordance with, the laws of the State of California. Proper venue for legal action regarding this MOU shall be in the County of Santa Clara.

IN WITNESS OF, the Parties have executed the MOU as of the last date set forth below:

DocuSigned by:

Pamela Wu

City SPCUPEHino - City Manager
Date: 5/2/2023
DocuSigned by:

Jimmy Forlas

City of ‘Gilroy - City Manager
Date: 5/2/2023
DocuSigned by:
iis
Approvarae ‘form, Cupertino
Date: 5/1/2023
DocuSigned by: DocuSigned by:

Audy Falur oo

70... 1464...

Approval as to form, Gilroy
Date; 5/4/2023 5/1/2023

Page 303 of 918 ends

DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7 [al rid Eanland,
City of SPARES - City Manager
Date: 5/1/2023
DocuSigned by:
{ peter Pirmyad.

Tone os Altos Hills - Town Manager
DocuSigned by:
( Ashwini bautak
City SP Rtipitts - City Manager /actiN“G
Date: 5/10/2023
DocuSigned by:
( Claritin Tuer
City OP MOrSaV Hill - City Manager
Date: 5/5/2023
DocuSigned by:

Kinbra McCarthy

City of MIOUABIN View - City Manager
Date: 5/5/2023
DocuSignedby: by:
( Daun S Cameron
‘Ci BERPititain View - Public Works Director
Date: 5/1/2023
Sarah rgrate
City of San Jose - Cty Manager
Date: 5/26/2023
DocuSigned by:
<2
City oF SHA CMita - City Manager
Date: 5/7/2023
DocuSigned by:

— 0831
Approval as to form, Los Altos
Date: 5/1/2023
DocuSigned by:
[ Stow fates

Approval 4816 40%m, Los Altos Hills
Date: 5/19/2023
(— DocuSigned by:

Approval #8 28"rotfi; Milpitas
Date: 5/1/2023
(Donald, Larkin

Approvat a¢tofétm, Morgan Hill
Date: 5/1/2023
DocuSigned by:
ans FE arly
Appr aPsigaefetm, Mountain View
[zy by:

T2ACA8DEF64B4BF...

City of Mountain View - Finance
Administrative Services Director
Date: 5/2/2023
[ploenclosl
Approval as to form, San Jose
Date: L
DocuSigned by:
(us ML. Hare

Approval as" 0 fori, Santa Clara (City)
Date: 5/22/2023

Page 304 of 918 ends

DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7 DocuSigned by:
{ Lend Stufuns
City oF SuBhy Vale - City Manager
Date: 5/2/2023
DocuSigned by:

Matthew Hada
County Sf Sant?’ tara - Director of Procurement
Date: 5/1/2023

DocuSigned by:

She tito
— oe
West Valley Solid Waste Management
Authority - President
Date: 5/1/2023
DocuSigned by:
| Ed Stiksda
City of Palo AltS = City Manager
Date: 5/5/2023

DocuSigned by:

Rebeca Meow

MN
Approval 48 to form, Sunnyvale
Date: 5/1/2023
DocuSigned by:

Willi Mauer

Approvill's2’fo'féim, Santa Clara County
Date: 5/1/2023
DocuSigned by:
{ birdun Powell

Approval a8 to'forin, West Valley Solid
Waste Management Authority
Date: 5/8/2023
DacuSigned by:
[ fae ee

Approval as to form, City of Palo Alto
Date: 5/11/2023

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DocuSign
Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7

EXHIBIT A

COSTS AND
SCOPE

OF SERVICES

Froposed
Jurisdiction
Contributions for Base Program and Infrastructure - FY 23-24 Program Costs

Initial
HBase Program |
Base Program
Initial Local Asst. | program
—
|
Contract Cost
| Contribution
Potential
-|Grant (LAG).
“pledge” |
Tier1
|
Tier2
Total
|
($133 per
($133 per
|
Infrastructure | Enhancement
Jurisdictions
{All
ocation
|
19% of LAG | Generators
| Generators | Generators |
generator)
|
generator)
| Enhancements | Contribution

55 ,495
77 ,953
75,255

7,980
11 ,970
7,847
Campbell
Cupertino
Gilroy
10,544

11 49
60 14,811

10 80
90 14,298
11 48
59 7,980
11,970
7,847
2,564
2,841
6,451
2,564
2,841
6,451

Los Altos 41,038 7,797 7 34 41 5,453 5,453 2,344 2,344

Los Altos Hills
20,000

3,800
0 2
2 266
266
3,534
3,534

Los Gatos
41,465
7,878
10 45
55 7,315
7,315
563
563
Milpitas
100
,259
19,049
21 92
11 3
15,029
15,029
4,020
4,020

Monte
Sereno
133

133

3,66
7 3,66
7 Morgan
Hill
Mountain
View
63,156
12,000

15 43
58 109,638
20,831
17 11
4 131
7,714
17,423
7,714
17,423
4,286
3,408
4,286
3,408 |

Palo Alto
89,759
17,054
7 106
11 3
15,029
15,029
2,025
2,025

San Jose
1,351,654
256,814
212
787
999

132,702
132,702
124,11
2 124,11
2 Santa Clara
Saratoga
Sunnyvale
172,504
32,77
6 40
162
202
41,085
7,806
2 26
28 202,777

39,368
26 144

170
26,866

3,724
22 ,610
22 ,610
26,866
3,724
5,910
4,082
5,910
4,082
16,758
16,758

$
$
$
$
$
$
$
20,000/$ 3,800 0 1 1
$
$
$
$
$
$
$

Dh] Se] UE] UE UE UE OE] UE) TP] UD | OP]
LV] UE OAL OM] WIM) MOM) OH] wm] Ow
Unincorporated SCC
113,337 | $
23,000

13 35
48 6,384
6,384
16,616
16,616

Ar] el A] HE] | MH] | HLM] HW] | MH) VIO
Totals
ER EN Ee EL EL aL EL LL UL Ue] UF] UF] Ue)
VLU] VM] MA) MW] WIM] AO] MH) wW) wo) non
2,575 ara
$
491,627
402
1768
2170
288,445|$
288,445
203,182 |
$
203,182

West Valley Cities: FY 23-24 éainn
ibudens funded by West Valley Solid Waste
Managen ment —

$
19,152
S$
10,876
‘Note: Initial program pledge was based on program cost estimate before program establishment and expences
with program Sue
of work.

Enhancement
Contributions may be reduced,
but not the Base Program
Contribution.

Contributions to Infrastructure Enhancements
by each agency are subject to change pending final saa
rduals by each Agency.

Page 306 of 918 ends

DocuSign Envelope ID: F14D4D16-76CD-4EFE-B52C-B1A3240516C7 EXHIBIT A:

SCOPE OF SERVICES
Base Program — Countywide Food Recovery Program Management From July 1, 2023 to June 30, 2024, Joint Venture Silicon Valley will run the Santa Clara County Food Recovery Program, serving as the food recovery program (Program) on behalf of all jurisdictions (Jurisdictions) of the Parties, and coordinating with any Party performing their own enforcement.

The Base Program
1 10.

Will develop and coordinate a standardized and uniform method to comply with California Code of Regulations, Title 14, Division 7, Chapter 12, “Short-Lived Climate Pollutants.” The Program will operate within the Party’s boundaries and replace the need for the Party to create such a program on its own.

Each year by March, the Program will conduct a review of new Tier 1 and Tier 2 Entities, to ensure that as businesses open in Santa Clara County, the appropriate regulated entities are added to the Tier 1 and Tier 2 lists. Closing businesses will be identified during the reporting process, and be eliminated from the lists.

Provide Parties with requirements for inclusion in the ‘large event’ list requested from each Party, as well as provide electronic materials for distribution for large event planners.

Shall provide Parties with the information and data necessary for the Parties to make their required reports to CalRecycle.

Shall retain records of inspections for each Party for a minimum of five (5) years.

Shall notify the Party promptly about any related issues that require the Party’s assistance or to request the Party lead in resolving the issue(s) that arise related to non-compliance.

Shall fulfill the annual education requirement for the Parties and provide the data needed for the Parties to complete required CalRecycle reports.

Shall conduct generator and Food Recovery Organization/Services requests for reports, compile the results, and communicate those results to the jurisdictions for inclusion in the Implementation Record Data Summary, and to Santa Clara County for use in future Capacity Planning efforts.

Shall conduct inspections and monitoring in compliance with CalRecycle expectations for Tier One businesses, Tier Two entities and Organizations, and Food Recovery Organizations and Services.

The Program shall supply appropriate content for the web site, SCCFoodRecovery.org, as well as a list of Food Recovery Organizations and Services. The list will be annually updated and made accessible to Tier 1 and 2 Entities.

Page 307 of 918 ends

DocuSign Envelope ID:

11. 12.

13. F14D4D16-76CD-4EFE-B52C-B1A3240516C7
The Program leadership shall represent the interests of the Program with other entities, Counties, and CalRecycle.

The Program leadership shall create reports about Program activities at the end of each fiscal year. These reports shall include monitoring statistics, details on overall compliance, compliance in certain sectors, total number of pounds of food recovered, and a summary of all enforcement actions taken.

Statistics about food recovery in Santa Clara County will be shared on the Office of Sustainability website as part of the Sustainability Master Plan Data Dashboard and the Annual Sustainability Report.

All Parties to this MOU will receive the Base Program services.

Infrastructure Enhancements Program
As shown in Exhibit A of this MOU, jurisdictions have chosen to contribute to the edible food recovery Infrastructure Enhancements Program which will direct additional food recovery resources to participating jurisdictions between July 1, 2023 and June 30, 2024. The Infrastructure Enhancements Program will include two subprograms, described as follows:
1) Small Capacity Grants. Grants will be issued to increase the food recovery capacity of food 2)
recovery organizations that serve contributing jurisdictions. Applications will be solicited, awards will be issued, and funds will be distributed. Joint Venture Silicon Valley will provide information for Annual Reporting that shows how contributions to this subprogram were spent on behalf of each participating Agency.

Food Waste Prevention Classes. A webinar/in-person series will be advertised for different sectors regulated under SB 1383 (e.g., restaurants, hospitals, schools, large events). The series will promote food waste prevention measures specific to each regulated sector, provide food recovery tips and best practices, and teach businesses and organizations how to comply with SB 1383 and local ordinances. The series will start with Tier 2, and then move into Tier 1 groups that answered ‘zero pounds' in their reports, if funding allows. Joint Venture Silicon Valley will provide information for Annual Reporting that shows how contributions to this subprogram were spent on behalf of each participating Party.
fii

Page 308 of 918 ends

Certificate Of Completion
Envelope Id: F14D4D1676CD4EFEB52CB1A3240516C7
Subject: Complete with DocuSign: FRP_SharedCostAgrmt_MOU_removed West Valley Cities final_4sigsMV_5.1.23.pdf Source Envelope:

Document Pages: 9
Certificate Pages: 12
AutoNav: Enabled
Envelopeld Stamping: Enabled
Signatures: 27
Initials: 0
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
Record Tracking
Status: Original
5/1/2023 9:56:15 AM
Security Appliance Status: Connected
Storage Appliance Status: Connected
Signer Events
Andy Faber
[email protected]
City Attorney
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/4/2023 2:33:49 PM
ID: 019fdeOb-2610-414b-b6c6-f1 cdbd3fbdb8
Ashwini Kantak
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/10/2023 10:15:19 AM
ID: 83d99ce9d-2d92-432f-bb5e-f3fae0bf276d
Caio Arellano
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/11/2023 6:02:19 AM
ID: b8fef4c7-5026-4fad-93f9-5c1501443e4c
Christina Turner
[email protected]
City Manager
City of Morgan Hill
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Holder: City Clerk's Office
[email protected]
Pool: StateLocal
Pool: City of Morgan Hill
Signature :
[a Faby
1979CSEBS5B68470...

Signature Adoption: Pre-selected Style
Using IP Address: 68.121.158.241
[in bantak
OCFA2D4A9CB804E4...

Signature Adoption: Pre-selected Style
Using IP Address: 50.59.22.2
(eas by:
81C299FA3B9340E...

Signature Adoption: Uploaded Signature Image
Using IP Address: 98.47.120.62
DacuSigned by:

Cluvistiva Tuer
6D0198AF549944D...

Signature Adoption: Pre-selected Style
Using IP Address: 107.115.112.18
DocuSign
Status: Completed
Envelope Originator:

City Clerk's Office
17575 Peak Ave
Morgan Hill, CA 95037
[email protected]
IP Address: 152.44.239.118
Location: DocuSign
Location: DocuSign
Timestamp
Sent: 5/1/2023 11:08:40 AM
Viewed: 5/4/2023 2:33:49 PM
Signed: 5/4/2023 2:34:21 PM
Sent: 5/1/2023 11:08:42 AM
Viewed: 5/10/2023 10:15:19 AM
Signed: 5/10/2023 10:15:43 AM
Sent: 5/1/2023 11:08:53 AM
Resent: 5/1/2023 11:55:46 AM
Viewed: 5/11/2023 6:02:19 AM
Signed: 5/11/2023 6:02:43 AM
Sent: 5/1/2023 11:08:44 AM
Viewed: 5/5/2023 5:52:03 AM
Signed: 5/5/2023 5:53:50 AM

Page 309 of 918 ends

Signer Events
Accepted: 5/5/2023 5:52:03 AM
ID: deOd7e7d-5dcf-4 1b1-a264-c221890ae38b
Christopher D. Jenson
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:16:38 AM
ID: 1b0621ee-947f-4d4e-9466-6edb7d3f2f06
Dawn S Cameron
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 4:53:11 PM
ID: 3be33e4c-c54b-407a-a33e-06220619193c
Derek Rampone
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:21:57 AM
ID: a0de42d3-bc19-4af4-91ff-d09e62fa3f69
Diana Fazely
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/3/2023 2:22:56 PM
ID: 274e1052-6eb2-41dc-abdb-7e1a7fc9dc69
Donald Larkin
[email protected]
City Attorney/Risk Manager
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:15:41 AM
ID: 9330dec4-8ed0-4b73-b974-f34f502102bc
Signature
DocuSigned by:

Chyisoplur 0. Junsou
4EAGB27CD2B74E4...

Signature Adoption: Pre-selected Style
Using IP Address: 136.24.22.194
DocuSigned by:
( Daun S Cameron
431D4C48F33C49F...

Signature Adoption: Pre-selected Style
Using IP Address: 38.99.34.33
(cz by:
‘72ACABDEF64B4BF...

Signature Adoption: Drawn on Device
Using IP Address: 38.99.34.33
DocuSigned by:

Diana Fanuly
‘7FF9A7208CBB4D1...

Signature Adoption: Pre-selected Style
Using IP Address: 73.189.195.168
DocuSigned by;
Donald (arkiv.
45E6F0273EA2464...

Signature Adoption: Pre-selected Style
Using IP Address: 71.93.229.68
Timestamp
Sent: 5/1/2023 11:08:39 AM
Viewed: 5/1/2023 11:16:38 AM
Signed: 5/1/2023 11:17:56 AM
Sent: 5/1/2023 11:08:43 AM
Viewed: 5/1/2023 4:53:11 PM
Signed: 5/1/2023 4:55:46 PM
Sent: 5/1/2023 11:08:43 AM
Viewed: 5/1/2023 11:21:57 AM
Signed: 5/2/2023 3:28:25 PM
Sent: 5/3/2023 1:48:51 PM
Viewed: 5/3/2023 2:22:56 PM
Signed: 5/3/2023 2:23:07 PM
Sent: 5/1/2023 11:08:50 AM
Viewed: 5/1/2023 11:15:41 AM
Signed: 5/1/2023 11:16:52 AM

Page 310 of 918 ends

Signer Events
Ed Shikada
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/3/2023 11:01:32 AM
ID: 9d7491c6-779e-4f4b-b273-c1976a41b3f0
Gabriel Engeland
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 8:37:12 PM
ID: 230984e0-2f4e-4f90-b622-22a859fa83 1d
Jimmy Forbis
[email protected]
City Administrator
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/2/2023 10:43:36 PM
ID: 079f1c50-59b3-4ecc-83b7-32815a1f536d
Jolie Houston
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:54:20 AM
ID: 042df2e9-3f1d-457d-ae19-cc9eed44d0e1
Jovan D. Grogan
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/5/2023 7:45:07 AM
ID: 5e9934b0-786a-4665-8462-3e1f503a84ca
Kent Steffens
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Signature
DocuSigned by:

F2DCA19CGCED4F9..,
Signature Adoption: Pre-selected Style
Using IP Address: 199.33.32.254
DocuSigned by:

Cabri. Crguland.
1221E448CC844F8...

Signature Adoption: Pre-selected Style
Using IP Address: 98.248.50.11
DocuSigned by:
(sin Fovlis
FAB7DCFFD9254E3...

Signature Adoption: Pre-selected Style
Using IP Address: 71.93.228.96
DocuSigned by:

Signature Adoption: Pre-selected Style
Using IP Address: 68.121.158.241
DocuSigned by:
ase SEADSEDEDSC343A..,
Signature Adoption: Drawn on Device
Using IP Address: 172.58.88.157
Signed using mobile
DocuSigned by:
kent Steffns
OC91E613C0AS45F...

Signature Adoption: Pre-selected Style
Using IP Address: 198.94.221.66
Timestamp
Sent: 5/1/2023 11:08:53 AM
Viewed: 5/3/2023 11:01:32 AM
Signed: 5/5/2023 9:56:54 AM
Sent: 5/1/2023 11:08:42 AM
Viewed: 5/1/2023 8:37:12 PM
Signed: 5/1/2023 8:37:25 PM
Sent: 5/1/2023 11:08:41 AM
Viewed: 5/2/2023 10:43:36 PM
Signed: 5/2/2023 10:43:53 PM
Sent: 5/1/2023 11:08:45 AM
Viewed: 5/1/2023 11:54:20 AM
Signed: 5/1/2023 11:54:44 AM
Sent: 5/1/2023 11:08:49 AM
Viewed: 5/5/2023 7:45:07 AM
Signed: 5/7/2023 11:56:55 AM
Sent: 5/1/2023 11:08:48 AM
Viewed: 5/2/2023 8:36:02 PM
Signed: 5/2/2023 9:33:31 PM

Page 311 of 918 ends

Signer Events
Accepted: 5/2/2023 8:36:02 PM
ID: 40f98182-e26c-4 1ee-b04a-2bf2d2e405ed
Kimbra McCarthy
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/5/2023 7:14:02 AM
ID: 9¢3ea2b7-42c9-42a5-b420-67899d0a5625
Kirsten Powell
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/8/2023 8:30:54 AM
ID: 39ea5193-a104-46d7-be4b-b83b88d7cd9b
Luis M. Haro
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 1:21:38 PM
ID: 5cfd82b9-2c82-46c5-a742-65b978ec1475
Matthew Hada
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:35:37 AM
ID: 404a699c-fd90-4e90-b4ad-ffa503a42a9d
Michael Mutalipassi
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 3:19:26 PM
ID: cc4c3433-1741-4297-a0fe-337910c7d908
Signature
DocuSigned by:

Kimnbra McCarthy
253F6B1B9DFAGAB...

Signature Adoption: Pre-selected Style
Using IP Address: 104.9,124.184
Signed using mobile
DocuSigned by:
hivsten Powell
OOF 15E0E71244B4...

Signature Adoption: Pre-selected Style
Using IP Address: 73.63.184.160
Signed using mobile
DocuSigned by:
(wis M. Kare
0990184AB84C4B7...

Signature Adoption: Pre-selected Style
Using IP Address: 38.99.114.1
DocuSigned by:

Matthew Hada
CEAOS0A27EBB4EA...

Signature Adoption: Pre-selected Style
Using IP Address: 146.74.1.98
[A—
Signature Adoption: Uploaded Signature Image
Using IP Address: 50,59.22.2
Timestamp
Sent: 5/1/2023 11:09:04 AM
Viewed: 5/5/2023 7:14:02 AM
Signed: 5/5/2023 7:16:33 AM
Sent: 5/1/2023 11:08:59 AM
Viewed: 5/8/2023 8:30:54 AM
Signed: 5/8/2023 8:31:40 AM
Sent: 5/1/2023 11:08:52 AM
Viewed: 5/1/2023 1:21:38 PM
Signed: 5/22/2023 12:39:39 PM
Sent: 5/1/2023 11:09:03 AM
Viewed: 5/1/2023 11:35:37 AM
Signed: 5/1/2023 11:35:53 AM
Sent: 5/1/2023 11:08:51 AM
Viewed: 5/1/2023 3:19:26 PM
Signed: 5/1/2023 3:21:21 PM

Page 312 of 918 ends

Signer Events
Pamela Wu
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/2/2023 8:37:35 AM
ID: 1c99465f-8f73-49c8-9b49-c01366e90343
Peter Pirnejad
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 1:20:03 PM
ID: 8a6c1047-d9f6-4897-b1c2-4d6b8f05017b
Rebecca Moon
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:12:13 AM
ID: 397f2456-e21a-4906-98b9-783350938b4 1
Rob Hilton
[email protected]
President
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 11:09:58 AM
ID: 8f58b590-3 1f7-4c05-b2de-a151a100f0ad
Steve Mattas
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/5/2023 9:27:32 AM
ID: 1206ba84-549d-4f5a-ac2d-a9c8ab5i27bd
Willie Nguyen
willie. [email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Signature
DocuSigned by:

Pamela Wu
AA9Q2FF3291C7438...

Signature Adoption: Pre-selected Style
Using IP Address: 64.165.34.3
DocuSigned by:

Pur Pimyad,
7138697393344A2...

Signature Adoption: Pre-selected Style
Using IP Address: 50.239.26.174
DocuSigned by:
[recs Moou.
4004884861 14497...

Signature Adoption: Pre-selected Style
Using IP Address: 98.37.126.212
DocuSigned by:
[<3 tibow
4A0B27640FF 1481...

Signature Adoption: Pre-selected Style
Using IP Address: 24.6.115.57
DocuSigned by:

Stu Mattes
6347662C49394C0...

Signature Adoption: Pre-selected Style
Using IP Address: 174.197.76.94
Willi Naan.

A1756187CF04415...

Signature Adoption: Pre-selected Style
Using IP Address: 146.74.60.99
Timestamp
Sent: 5/1/2023 11:08:40 AM
Viewed: 5/2/2023 8:37:35 AM
Signed: 5/2/2023 8:37:53 AM
Sent: 5/1/2023 11:08:54 AM
Resent: 5/1/2023 11:48:47 AM
Viewed: 5/1/2023 1:20:03 PM
Signed: 5/1/2023 1:21:01 PM
Sent: 5/1/2023 11:09:00 AM
Viewed: 5/1/2023 11:12:14 AM
Signed: 5/1/2023 11:17:31 AM
Sent: 5/1/2023 11:08:58 AM
Viewed: 5/1/2023 11:09:58 AM
Signed: 5/1/2023 11:10:41 AM
Sent: 5/1/2023 11:08:51 AM
Viewed: 5/5/2023 9:27:32 AM
Signed: 5/19/2023 9:51:08 AM
Sent: 5/1/2023 11:08:57 AM
Viewed: 5/1/2023 11:10:42 AM
Signed: 5/1/2023 11:15:46 AM

Page 313 of 918 ends

Signer Events
Accepted: 5/1/2023 11:10:41 AM
ID: a500d164-6f76-4e97-a568-7cded4a68632
In Person Signer Events
Editor Delivery Events
Agent Delivery Events
Intermediary Delivery Events
Certified Delivery Events
Carbon Copy Events
Brad Eggleston
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Casey Leedom
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Chuck Muir
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Clif Chew
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Cynthia lwanaga
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Accepted: 5/1/2023 9:24:00 AM
ID: 66b4f104-4cd0-4412-aff0-d3ab5542acf7
Dave Staub
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Hailey Gordon
[email protected]
Security Level: Email, Account Authentication
(None)
Signature
Signature
Status
Status
Status
Status
Status

COPIED

COPIED
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
Sent: 5/1/2023 12:41:43 PM
Sent: 5/1/2023 11:08:46 AM
Sent: 5/1/2023 11:08:47 AM
Resent: 5/1/2023 12:41:42 PM
Sent: 5/1/2023 11:09:02 AM
Viewed: 5/1/2023 11:09:52 AM
Sent: 5/2/2023 7:49:20 AM
Viewed: 5/2/2023 8:25:53 AM
Sent: 5/1/2023 11:09:01 AM
Viewed: 5/22/2023 1:00:43 PM
Sent: 5/1/2023 11:08:59 AM

Page 314 of 918 ends

Carbon Copy Events
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Hemali Mikhael
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
lvan Carmona-Torres
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Jennifer Cutter
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Kim Mancera
[email protected]
Municipal Services Assistant
City of Morgan Hill
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Laura Lo
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Michele Young
[email protected]
Security Level: Email, Account Authentication
(None), Login with SSO
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Myvan Khuu-Seeman
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Paula Borges
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Status

COPIED

COPIED
Timestamp
Sent: 5/1/2023 11:08:46 AM
Sent: 5/1/2023 11:08:58 AM
Viewed: 5/1/2023 11:12:26 AM
Sent: 5/1/2023 11:08:52 AM
Viewed: 5/1/2023 11:28:24 AM
Sent: 5/1/2023 11:08:56 AM
Sent: 5/1/2023 11:08:47 AM
Sent: 5/1/2023 11:08:57 AM
Viewed: 5/1/2023 3:57:39 PM
Sent: 5/1/2023 11:08:54 AM
Viewed: 5/22/2023 12:41:10 PM
Sent: 5/1/2023 11:08:55 AM

Page 315 of 918 ends

Carbon Copy Events
Sarina Revillar
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Shikha Gupta
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Tania Katbi
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Tanya Carothers
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Ursula Syrova
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
WVSWMA
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Witness Events
Notary Events
Envelope Summary Events
Envelope Sent
Envelope Updated
Envelope Updated
Envelope Updated
Envelope Updated
Envelope Updated
Envelope Updated
Envelope Updated
Envelope Updated
Certified Delivered
Signing Complete
Completed
Status

COPIED

COPIED
"Signature
Signature
' Status
Hashed/Encrypted
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Security Checked
Timestamp
Sent: 5/1/2023 11:08:48 AM
Sent: 5/1/2023 11:09:02 AM
Viewed: 5/1/2023 11:10:34 AM
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Payment Events Status Timestamps
Electronic Record and Signature Disclosure

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Electronic Record and Signature Disclosure created on: 5/29/2020 4:52:24 PM Parties agreed to: Andy Faber, Ashwini Kantak, Caio Arellano, Christina Turner, Christopher D. Jenson, Dawn S Cameron, Derek Rampone, Diana Fazely, Donald La

ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
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All notices and disclosures will be sent to you electronically

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Unless you tell us otherwise in accordance with the procedures described herein, we will pr ovide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us.

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute an Amended Stormwater Management Facilities Operation and Maintenance Agreement for Toll West Coast, LLC for the Parkside Project at 1980 and 1992 Tarob Court and 551 Lundy Place (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602; and Michael Silveira, City Engineer, 408-586-3303)
Category: Consent Calendar-Community Development
Meeting Date: 6/18/2024
Recommendation: Approve and authorize the City Manager to execute an amendment to the Stormwater Management Facilities Operation and Maintenance Agreement for Toll West Coast, LLC for the Parkside Project at 1980 and 1992 Tarob Court and 551 Lundy Place.

BACKGROUND:

Toll West Coast, LLC (Developer) received three separate entitlements for the development of property located on 1980 and 1992 Tarob Court and 551 Lundy Place Projects, collectively known as Parkside Project (“Project”). The combined project area totals approximately 8.88 acres and is located within the Milpitas Metro Specific Plan Area.

The three development entitlements associated with this Project are as follows:
•September 20, 2016, the City Council adopted Resolution No. 8587 for the 2.81-acre parcel located at 1980 Tarob Court for construction of 59 residential condominium units with related common areas, utilities, offsite improvements, landscaping, irrigation, and stormwater treatment measures. •October 3, 2017, the City Council adopted Resolution No. 8702 for the 2.42-acre parcel located at 1992 Tarob Court for construction of 53 residential condominium units with related common areas, utilities, offsite improvements, landscaping, irrigation, and stormwater treatment measures. •February 20, 2018, the City Council adopted Resolution No. 8748 for the 3.65-acre parcel located at 551 Lundy Place approving construction of 89 residential condominium units with related common areas, utilities, offsite improvements, landscaping, irrigation, and stormwater treatment measures.

On November 15, 2022, the City Council approved a Stormwater Management Facilities Operation and Maintenance Agreement (Agreement) with the Developer requiring the Home Owner Association (HOA) to operate and maintain the installed stormwater treatment facilities in accordance with the Municipal Regional Stormwater National Pollutant Discharge Elimination System (NPDES) Permit and compensate the City to complete the required annual system inspections. Staff is recommending amending the Agreement to include provisions for the Developer (or its successor) to switch the irrigation system to a recycled water supply when it becomes available.

ANALYSIS:

As a condition of approval, the Project is to irrigate the landscape areas by recycled water when it becomes available; in the meantime, the City has granted a temporary use of domestic water for this purpose. The Developer constructed a recycle water main in Tarob Court for future connection but was unable to connect to the operational system as there is no public access to the termination point located in front of the 355 Sango Court Affordable Housing project, approximately 400 feet away. The developer of the GeoMax 2 residential development located at 1905 Tarob Court will construct the final phase of the Sango Court road extension which will provide public access to deliver recycled water to the Project. Once the road extension is completed, no later than 2027, the development’s irrigation system will be switched to use recycled water.

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The Developer is nearing the Project’s final completion and ready to form an HOA to manage the residential development which is anticipated in 2025 or 2026. To ensure that the Project switches over to the recycled water supply when the water main along Tarob Court becomes operational, the Developer has agreed to amend the Agreement. The Property Owner will have one year from the date of the City’s notification that the system is operational to switch all irrigation systems supplied by domestic water to recycled water. The approved Project’s construction plans included an irrigation system to be provided by the recycled water system which has been constructed.

Staff recommends the City Council approve the amended Agreement to include Item K and Section 5 to ensure the Property Owner converts the development’s irrigation system. The amendment has been reviewed by the City Attorney and approved as to form, and by the City Engineer as to content.

POLICY ALTERNATIVE(S):

Alternative: Not approve the amendment to the Agreement with the City for operation, maintenance and annual inspection of stormwater treatment facilities.

Pros: None
Cons: Not approving the amendment to the Agreement would cause the Project to not be compliant with the Conditions of Approval for this Project as well as the requirements of the City’s Municipal Code and State law.

Reason for Not Recommending: To comply with Project conditions and ensure for the use of recycled water for irrigation of the development.

FISCAL IMPACT:

None. The Developer (or its successor) will incur the cost to convert the development’s irrigation system to recycled water.

California Environmental Quality Act (CEQA):

The City Council approval of the Agreement was already reviewed under the California Environmental Quality Act (CEQA) at the time the City Council approved the entitlements for the project thru an initial environmental assessment.

The proposed Project is covered under the scope of activities approved under the Transit Area Specific Plan (TASP)/Metro Plan EIR, SCH#SCH2006032091, which was certified by the Milpitas City Council on June 3, 2008. The EIR included a program of activities including construction of up to 7,109 residential units within the TASP/Metro Specific Plan Area. The proposed 59 residential units and residential amenity space fall within this scope of development activity contemplated in the TASP EIR. LSA Associates completed an environmental assessment of the proposed Project to confirm the proposed Project is within the scope of the TASP EIR. The analysis found that the Project is consistent with the TASP EIR and confirmed the Project is within the scope of development density considered under the TASP EIR. No new impacts were identified and no new mitigation measures are required. Policies and/or mitigation measures required of projects covered under the TASP EIR are included as Conditions of Approval. Pursuant to Public Resources Code section 21166 and CEQA Guidelines 15168©(2), the Project is exempt from further review under CEQA.

RECOMMENDATION:

Approve and authorize the City Manager to execute an amendment to the Stormwater Management Facilities Operation and Maintenance Agreement between Toll West Coast, LLC for the Parkside Project at 1980 and 1992 Tarob Court and 551 Lundy Place.

Attachment(s):

1. Amended Stormwater Management Facilities Operation and Maintenance Agreement

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Control No. 2024- ____
Recording Requested by
and when Recorded, return to:

CITY OF MILPITAS
455 E. CALAVERAS BOULEVARD
MILPITAS, CA 95035-5479

Attn: City Clerk

(SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE)

Document Transfer Tax is $ __0__
( ) Computed on full value of property conveyed
( ) Computed on full value less value of liens and encumbrances remaining City transfer tax is $ __0__

Tract Map: 10421 (1980 Tarob Court)
Lots: 1 to 6 (All lots have treatment measures)

Tract Map: 10455 (1992 Tarob Court)
Lots: 1 & 4 to 7
Parcels: A & B

Tract Map: 10475 (551 Lundy Place)
Lots: 1 to 4 & 6 to 13 (Except Lot 5 all lots have treatment measures)

STORMWATER MANAGEMENT FACILITIES

OPERATION AND MAINTENANCE AGREEMENT

This Stormwater Management Facilities Operation and Maintenance Agreement (“AGREEMENT”) is made and entered into this _______ day of ________ 2024 (“Effective Date”), by and between Toll West Coast, LLC a Delaware Limited Liability Company (“Property Owner”) and the City of Milpitas, a municipal corporation of the State of California (“City”).

RECITALS

This AGREEMENT is made and entered into with reference to the following facts:

A. WHEREAS, the Property Owner is the owner of real property more particularly depicted and described on the attached as Exhibit A (“Property”) and fully incorporated herein by reference; and

B. WHEREAS, the Property Owner received three entitlements from the City all owing the development of the Properties as a common interest development under one HOA.

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C. WHEREAS, On September 20, 2016, 1980 Tarob Court was entitled for the construction of 59 residential units with, emergency vehicle access, utilities, and associated offsite and onsite improvements landscaping, irrigation, and stormwater treatment measures on a 2.81 acre site located at 1980 Tarob C ourt in Milpitas and more commonly known as Parkside, Project No.

PJ1374, (the “Project”) on the Property; and subject to conditions set forth in the following (collectively “City Approvals”):

1. Resolution No. 8587 approving Site Development Permit No. SD15-0015,

2. Resolution No. 8587 approving Vesting Tentative Map No. MT15-0013,

3. Resolution No. 8587 approving Conditional Use Permit No. UP15-0020, and

4. Resolution No. 8587 approving Environmental Assessment No. EA16-0003;

D. WHEREAS, On October 3, 2017, 1992 Tarob C ourt was entitled for the construction of 5 3 residential condominium units with related common areas, and dedicate all necessary easements on a 2. 42 acre site located at 19 92 Tarob C ourt in Milpitas and more commonly known as Parkside, Project No. PJ5018, (the “Project”) on the Property; and subject to conditions set forth in the following (collectively “City Approvals”):

1. Resolution No. 8702 approving Site Development Permit No. SD16-0010,

2. Resolution No. 8702 approving Vesting Tentative Map No. MT16-0004, and

3. Resolution No. 8702 approving Conditional Use Permit No. UP16-0029;

E. WHEREAS, On February 20, 2018, 551 Lundy Place was entitled for the construction of 89 residential condominium units with related common areas, and dedicate all necessary easements on a 3.65 acre site located at 551 Lundy Place in Milpitas and more commonly known as Parkside, Project No. PJ 5030, (the “Project”) on the Property; and subject to conditions set forth in the following (collectively “City Approvals”):

1. Resolution No. 8748 approving Site Development Permit No. SD16-0009,

2. Resolution No. 8748 approving Vesting Tentative Map No. MT16-0003, and

3. Resolution No. 8748 approving Conditional Use Permit No. UP16-0028;

F. WHEREAS, discharges to the City’s municipal separate storm sewer system (“MS4”) are regulated under state and federal law pursuant to Waste Discharge Requirements and National Pollutant Discharge Elimination System permit (“MS4 Permit”) issued by the Regional Wat er Quality Control Board, San Francisco Region (“Regional Board”).

G. WHEREAS, pursuant to the requirements of the MS4 Permit and the City’s Stormwater and Urban Runoff Pollution Control Ordinance as codified in Milpitas Municipal Code Chapter 16 (“Ordinance”), the City Approvals require the Property Owner to install, operate and maintain, at no cost or expense to the City and as part of the common area as defined by the Davis -Stirling Common Interest Development Act , the Permanent Stormwater Pollution Prevention Measures (“BMPs”) more particularly described in the City -approved Stormwater Control Operation and

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Maintenance Plan (sometimes referred to herein as “Plan”) for the Project attached hereto as Exhibit B and fully incorporated herein by reference; and

H. WHEREAS, the Stormwater Control Operation and Maintenance Plan may be subsequently modified from time to time with City’s written approval and such changes shall be fully incorporated as part of this Agreement by this reference; and

I. WHEREAS, the Stormwater Control Operation and Maintenance Plan includes provisions for the BMP Operation and Maintenance and an annual inspection checklist for the BMPs constructed on the Property; and

J. WHEREAS, this Agreement memorializes the Property Own er’s obligations, either directly or through a property owners association, for maintenance, operations, and inspection under the City’s Ordinance and the approved Stormwater Control Operation and Maintenance Plan; and

K. WHEREAS, this project is required by the conditions of approval to convert all irrigation systems currently supplied by domestic water to switch to recycled water when it becomes available through a future operational recycled water main in Tarob Court. This requirement shall be fulfilled by the Property Owner if recycled water supply becomes available prior to project final acceptance, or by the Property Owner’s successor in interest if the supply of recycled water is available after project completion. If the recycled water supply is not available before project final completion, the Property Owner or its successors in interest shall retain sufficient funding within the homeowner’s association’s budget to fund the switch from domestic water supplied irrigation to recycled water supplied irrigation. Failure to retain sufficient funding for the switch from domestic water to recycled water shall constitute a material breach of this agreement.

NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein, and the following terms and conditions, the parties hereto agree as follows:

SECTION 1. Responsibility for Operation and Maintenance:

The Property Owner, at its sole cost and expense, shall construct and install the BMPs shown in Exhibit B in accordance with the plans approved by and on file with the City. Property Owner shall diligently maintain in perpetuity the BMPs in a manner assuring peak performance at all times, shall make such changes or modifications to the BMPs, subject to City’s prior approval as may be reasonably necessary for the BMPs to continue to operate as designed and approved and to accomplish its intended purpose and in good repair, and in compliance with all applicable Federal, State, County and local laws and regulations, including but not limited to the Ordinance , as the sa me may be amended, revised, and/or replaced from time to time. The Owner shall be responsible for the costs incurred in operating, maintaining, repairing and replacing the BMPs. Property Owner shall not destroy or remove the BMPs or modify any measure in any manner that would lessen its effectiveness. Property Owner shall make available copies of the approved Stormwater Co ntrol Operation and Maintenance Plan at the site with the facility or property manager.

SECTION 2: Inspection by Property Owner:

The Property Owner, at its sole cost and expense, shall conduct annual inspections of all permanent installed BMPs per the Plan . The annual inspection report shall include completion of the checklist described in the approved Stormwater Control Operation and Maintenance Plan. The BMPs must be inspected by a qualified independent inspector who is acceptable to the City. The Property Owner shall submit the Inspection Report on these BMPs to the City Engineer no later than July 15th of each year.

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SECTION 3. Facility Inspection by the City:

(a) Right of Entry. The Property Owner, on its behalf and on behalf of its successors and assigns, grants permission to the City, the inspectors of the Regional Board, and local mosquito and vector control agency, and their authorized agents and employees, to enter the Property, and to inspect the BMPs whenever the City deems necessary to enforce provisions of the Ordinance, this Agreement, or any other local or state requirements. The City m ay enter the premises at any reasonable time during normal business hours and upon at least 48 hours prior written notice (except that prior written notice is not required in case of emergency) to inspect the premises related to BMPs and BMP operation and maintenance, to inspect and copy records related to storm water compliance, and to collect samples and take measurements related to BMPs. The Property Owner shall deposit and maintain a Private Job Account with the City a minimum balance of Four Thousand Dollars ($4,000) for inspection by City Staff pursuant to this Section 3. The deposit of Four Thousand Dollars ($4,000.00) shall be made simultaneously with the execution of this Agreement.

(b) Security. The City may require the Owner, its successors and assigns, from time to time, to post security in a form, amount, and for a time period satisfactory to City to guarantee performance of the obligations stated herein. Should the Owner, its successors and assigns, fail to perform the obligations under this Agreement, the City may, in the case of a cash bond, act for the Owner, its successors and assigns, using the proceeds from such cash bond, or in the case of a surety bond, require the surety to perform the obligations of this Agreement.

SECTION 4. Failure to Perform Required Facility Repairs or Maintenance by the Property Owner:

(a) Enforcement Action. If the Property Owner or its successors fail to operate and maintain the BMPs in good working order and in accordance with the approved Plan and the City’s Ordinance, the City may, but is not required to, pursue any enforcement action available at law or in equity to cause the completion of all maintenance and may charge the costs of such enforcement action against the Property Owner in any manner authorized by law or in equity.

(b) City Maintenance. In the event of Property Owner’s failure to operate and maintain BMPs in accordance with the Plan and the City’s Ordinance, the City may also , with prior written notice, enter the Property to return the BMPs to good working order; provided however that the Property Owner shall have 30 days after any such notice , or such other time provided by law, to cure the relevant failure and provided further that the Property Owner shall have such additional time after the initial 30 days to complete a cure so long as Property Owner commences the cure within the initial 30 days and diligently prosecutes the cure to completion . Notwithstanding the foregoing, City may in its sole discretion enter the Property to return the BMPs to good working in an emergency and take any other necessary action to mitigate an emergency without any notice to Property Owner. The City is under no obligation to maintain or repair the BMPs, and this Agreement may not be construed to impose any such obligation on the City. If the City, under this Section 4 takes any action to return the BMPs to good working order, the Property Owner shall reimburse the City for all the reasonable costs and expenses incurred by the City. The City will provide the Property Owner with an itemized invoice of the City’s costs and expenses and the Property Owner shall make full payments to the City within thirty (30) days of the date of the invoice. If the Property Owners fails to pay the invoice within thirty (30) days, the City shall be entitled to cause a lien for any such unpaid maintenance expense bill to be recorded against the

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Property. In addition, the City shall be entitled to have the unpaid amount of the invoice placed as a special assessment on the next regular tax bill levied against the Property, after which such assessment shall be collected in the same manner as ordinary municipal taxes are collected, and shall be subject to the same pe nalties and same procedures under foreclosure and sale in the case of delinquency as provided for ordinary municipal taxes. The actions described in this section are in addition to and not in lieu of other legal remedies provided by law. Notwithstanding the above, it is understood that City is under no obligation to repair or maintain the BMPs, and in no event shall this Agreement be construed to impose any such obligation on City.

(c) Specific Performance. The provisions of this Agreement are expressly dec lared to be for the benefit of the City. The City may bring an action to obtain specific performance of this Agreement and may recover its costs, including attorney fees, incurred in bringing such action.

SECTION 5: Perpetual Use of Recycled Water

This project is required by the conditions of approval to convert all irrigation systems supplied by domestic water to recycled water when recycled water becomes available through an operational recycled water main in Tarob Court. The City shall give the Property Owner written notice when the recycled water main in Tarob Court becomes operational. The Property Owner or its successors in interest shall have one year from the date of service of that notice to convert all irrigation systems supplied by domestic water to recycled water. If the recycled water supply is not available before project final completion, the Property Owner or its successors in interest shall set aside funding within the homeowner’s association’s budget to fund the switch from domestic water supplied irrigation to recycled water supplied irrigation.

If the Property Owner or its successors in interest fails to convert all irrigation systems supplied by domestic water to recycled water within one year of receiving the City’s notice that recycle water is available, it materially breaches its obligations under this section (the "Property Owner’s Breach"), and the Property Owner shall pay to the City fifty dollars ($50.00) for each day a Property Owner Breach continues (the "Liquidated Damages"). The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the City’s harm caused by a Property Owner’s Breach would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from a Property Owner’s Breach. In addition to Liquidated Damages, the City may seek other forms of relief, including, but not limited to specific performance and injunctive relief.

SECTION 6: Successors and Assigns:

Property Owner hereby declares that the Property shall be held, transferred, encumbered, used, conveyed, leased and occupied subject to the covenants, conditions, restrictions, easements and rights set forth herein for the use and benefit of each of the Lots. All of th e limitations, easements, uses, obligations, covenants, restrictions and conditions stated herein shall run with the Property and shall be binding upon Property Owner, its successors and assigns, any and all parties having or acquiring any right, title or interest in or to the Property or any part thereof or interest therein and shall inure to the benefit of and be binding upon each successor-in-interest thereto.

Upon transfer of the property, the Property Owner shall provide the new owner with the current Plan and a copy of this Agreement and shall, in any event, be released from all obligations under this Agreement as of the effective date of the transfer of the Property.

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SECTION 7. Indemnity:

The Property Owner, on Property Owner’s behalf and on behalf of all successors in interest pursuant to Section 5 of this Agreement, shall indemnify, release, hold harmless, and defend the City and its authorized agents and employees f rom and against any and all demands, suits, liabilities, fines, losses, damages, accidents, casualties, occurrences or claims, including reasonable attorneys’ fees, against the City which may in anyway arise or relate to the construction, operation, presence, existence or maintenance of the BMPs, or from any personal injury or property damage that may arise or relate from the City entering the property under Section 4. If a claim is asserted against the City, its authorized agents or employees, the City shall promptly notify the Property Owner and the Property Owner shall defend the claim and any resulting litigation at its sole cost and expense, with counsel approved by City. If any judgment is entered against the City, or its authorized agents or employees, the Property Owner must pay all costs and expenses to satisfy the judgment.

SECTION 8. Severability:

Invalidation of any one of the provisions of this Agreement shall in no way effect any other provisions , and all other provisions shall remain in full force and effect.

SECTION 9. Non-Discrimination:

The Property Owner shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of this Agreement.

SECTION 10. Governing Law:

City and Property Owner agree that the law governing this Agreement shall be that of the State of California and that Property Owner shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments.

SECTION 11. Recordation:

Property Owner shall, within 10 days after the effective date of t his Agreement, record or cause the Agreement to be recorded in the Office of the Recorder, Santa Clara County, California, at the expense of the Property Owner, which recording shall constitute notice of the obligations herein set forth and a covenant running with the land and shall be binding upon all of the successors and assigns in title to the Property. In the event Property Owner fails to timely record this Agreement, City shall be authorized but not required to record the Agreement.

SECTION 12. Books and Records:

A. The Property Owner shall maintain any and all ledgers, books of account, invoices, vouchers, cancelled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements or in any way relating to the performance of this Agreement for a minimum period of three (3) years, or for any longer period required by law.

B. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit at no cost to City, at reasonable any time during regular business hours, upon at least 48 hours’ prior written request by the City Attorney, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to

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City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at the Property Owner’s address indicated for receipt of notices in this Agreement.

SECTION 13. Notices:

All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows:

To CITY:

City of Milpitas
Attn: City Engineer
455 East Calaveras Blvd.

Milpitas, CA 95035

To PROPERTY OWNER:

Toll Brothers, LLC
Attn: Kevin Fielding
6800 Koll Center Parkway, Suite 320
Pleasanton, CA 94566

Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail.

SECTION 14. Venue:

In the event that suit shall be brought by either party to this contract, the parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara, or if federal jurisdiction is appropriate, exclusively in the United States District Court, Northern District of California, San Jose, California.

SECTION 15. Interpretation, Prior Agreements:

This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. In the event that the terms specified in any of the Exhibits attached hereto conflict with any of the terms specified in the body of this Agree ment, the terms specified in the body of this Agreement shall control. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agree ment may be modified only by a written amendment duly executed by the parties to this Agreement.

IN WITNESS WHEREOF, the Parties execute this Stormwater Management Facilities Operation and Maintenance Agreement as of the last date set forth below:

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PROPERTY OWNER:

Toll West Coast, LLC
a Delaware Limited Liability Company

By: ______________
Name: Steve Savage______________
Title: Land Development VP, Norcal___

CITY:

CITY OF MILPITAS,

A MUNICIPAL CORPORATION

By: __________________________________
Ned Thomas, City Manager

Approved as to form:

By:_____________________________
Michael Mutalipassi, City Attorney

Recommended for approval:

By:_______________________________
Michael Silveira, PE
City Engineer
Approved:

By:_____________________________
Luz Cofresi-Howe
Finance Director/Risk Manager

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38077.01000\33218185.1
Please note that this is a placeholder for the acknowledgement. So use the most current version of the acknowledgement

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ________________________ )

On ____________________, before me, ____________________________, a Notary Public, personally appeared
__________________________________________________________________, ______ personally known to me;
______ or ________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

CAPACITY CLAIMED BY SIGNER:

Though statute does not require the notary to fill in the data below, doing so may prove invaluable to persons relying on the document.
______ Individual(s)
______ Corporate Officer(s) Titles _____________ and ____________ ______ Partner(s) _____ Limited _____ General ______ Attorney-in-Fact
______ Trustee(s)
______ Guardian/Conservator
______ Other : ____________________________________________________

Signer is representing: ________________________________________________

ATTENTION NOTARY: Although the information requested below is optional, it could prevent fraudulent attachment of this certificate to unauthorized document.

Title or type of document _____________________________________________ Number of pages: __________ Date of document: _________________________ Signer(s) other than named above: _____________________________________

THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED ABOVE

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38077.01000\33218185.1

EXHIBIT A

Plat and Description for the site

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38077.01000\33218185.1

EXHIBIT B

Operation and Maintenance Plan

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution to Approve Project Conceptual Design and Authorize a Cooperative Purchase Agreement with Williams Scotsman, Inc., through a Cooperative Procurement Contract Solicited by Region 4 Educational Service Center, for Fire Station No.1 Modular Building, Project No. 3465 (Staff Contact:

Christian Di Renzo, Public Works Director; 408-586-2602; Michael Silveira, City Engineer, 408-586-3303)
Category: Consent Calendar-Public Safety
Meeting Date: 6/18/2024
Recommendation: Adopt a resolution to (1) approve project conceptual design; (2) authorize the City Manager to execute a cooperative purchase agreement with Williams Scotsman, Inc., through a cooperative procurement contract solicited by Region 4 Educational Service Center, in an amount not-to-exceed $818,894; and (3) authorize the Public Works Director to negotiate and execute contract change order(s) in an aggregate amount not to exceed $100,000 for Fire Station No.1 Modular Building, Project No. 3465.

Background:

Fire Station No.1 Modular Building, Project No. 3465 (Project) is included in the adopted 2025-2029 Capital Improvement Program. The Project provides for the design and replacement of an existing modular building at Main Fire Station No.1 located at 777 S. Park Victoria Drive that has exceeded its useful life.

The 36’ x 60’ modular building was installed in the late 1990s to house the fire staff and operations during the construction of the new Fire Station No. 1. Following the completion of the station, it has been primarily served as a venue for firefighting academies, various training courses, and additional office space during significant emergency events. As staff outgrew the Main Fire Station Administration Building, the City Office of Emergency Management (OEM) staff was relocated to the building several years ago. In 2022, the City Engineer at the time deemed the building to be unsafe to continue any functions due to its deteriorating condition and therefore recommended its replacement. As a result, the OEM staff was relocated to a temporary office at the Police Building, and the academies and training courses are temporarily being held in the conference room of Main Fire Station Administration Building until the building is replaced.

Modular buildings like the one serving Fire Station No. 1 come from a rather boutique industry where a specialized vendor provides a comprehensive service from design to installation, which is under the authority of the State of California Department of Housing and Community Development. In collaboration with the Purchasing Agent and City Attorney’s Office, it was determined the solicitation methods under Section I-2-3.01 (Selection of Solicitation Methods) of the City of Milpitas Municipal Code was not practicable, and procuring the new modular building through a cooperative procurement agreement would be the most effective approach for the Project.

The City of Milpitas Municipal Code Section I-2-3.05 (d) (Public Agency Purchases) specifically authorizes the City Manager to execute agreements to purchase supplies and services without complying with the quotation or bidding requirements of Chapter 2 – Purchasing of the Municipal Code, if such purchases are based on an agreement or entered into by any public agency or cooperative purchasing program utilizing public agency procurement as the basis for contracts offered, regardless of whether the City is a named party to the agreement or an actual participant in such a program, provided that (i) the underlying purchase was made using competitive negotiation or procurement procedures, and may include a nationally bid cooperative contract; and (ii) the public agency is a "public agency" as defined in Government Code section 6500.

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OMNIA Partners is a shared services and supply chain optimization company dedicated to public procurement, which began operation on January 1, 2019. Each contract in the OMNIA Partners cooperative contract portfolio has been competitively solicited by a lead public agency. OMNIA Partners does not conduct solicitations; rather, they partner with various public agencies in soliciting solid cooperative contracts. All contracts previously solicited, issued and awarded by lead public agencies remain in full force and effect in accordance with their respective contract terms and conditions. The City of Milpitas is a member of OMNIA Partners cooperative purchasing organization by virtue of its membership with National IPA (now known as OMNIA Partners), effective September 26, 2012, and is assigned Participation Number 1036843.

Analysis:

On December 3, 2020, Region 4 Education Service Center (Region 4 ESC) issued on behalf of itself, other government agencies, non-profits, and all members of OMNIA, Request for Proposal (RFP) #21-05. As a result of that solicitation, Region 4 ESC awarded to Williams Scotsman, Inc. (WillScot) Contract No. R210503 entitled “Modular Buildings, Portable Storage, and Relocatable Walkways”. The contract term is from October 1, 2021, for three years to September 30, 2024, with two, one-year extensions through September 30, 2026. The contract was extended to September 30, 2025. All warranties of parts and buildings shall extend beyond the termination of Contract No. R210503, per Item #13 (Survival Clause) of the cooperative contract “All applicable software license agreements, warranties or service agreements that were entered into between Vendor and Customer under the terms and conditions of the Contract shall survive the expiration or termination of the Contract. All Purchase Orders issued and accepted by Order Filler shall survive expiration or termination of the Contract”.

OMNIA Partners has Contract No. R210503 available through its cooperative purchasing organization to all its public agency members.

The Purchasing Agent has reviewed all documentation related to RFP #21-05 and Contract No. R210503 awarded to WillScot by Region 4 ESC and has determined the contract is current through September 30, 2025, the underlying purchase was made using competitive bidding procedures at least as restrictive as those of the City of Milpitas, and Region 4 ECS meets the definition of a public agency as defined by Government Code Section 6500.

Staff recommends the City Council adopt a Resolution (Attachment 1) to approve conceptual design (Attachment 2) for the Project and authorize the City Manager to execute a cooperative purchase agreement (Attachment 3) with Williams Scotsman, Inc., through a cooperative procurement contract solicited by Region 4 Educational Service Center, in an amount not-to-exceed $818,894. There is sufficient funding available in the Project budget to execute this agreement and no additional funding appropriation is required.

The recommended construction contingency for this Project is $100,000 which is 12% of the total contract value to address any additional City Building permitting requirements and any unforeseen conditions that arise during the removal of the existing modular and installation of the new modular. Consistent with prior Council action for the successful completion of projects with tight completion schedules, staff is requesting the use of the same change order policy used for previous projects (Attachment 4). This policy allows for a timely completion of the Project, while addressing the need to respond swiftly to construction conditions and approve necessary change orders to limit potential claims or risks to the City. The change order authority will not be exceeded without prior City Council approval.

Policy Alternatives:

Alternative 1: Not approving conceptual design and authorizing the City Manager to execute a cooperative agreement with Williams Scotsman, Inc., for the replacement of existing modular building.

Pros: None.

Cons: The current modular building has reached the end of its service life. Without replacing the modular building, the Fire Department will continue to be challenged in finding an appropriate space for firefighting academies, various training courses, and OEM staff.

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Reason to not recommend: The replacement of the modular building is essential to the Fire Department to continue to provide critical firefighting academies and training courses and avoid the displacement of City’s Office of Emergency Management staff.

Fiscal Impact:

There is sufficient funding available in the Project budget to approve the agreement. No additional funding appropriation is required. Funding source for CIP Project 3465 comes from General Government CIP Fund and Grants, Reimbursement/Developer Fees. As of June 5, 2024, the balance in CIP 3465 is $ 978,283.

Available Project Budget as of March 31, 2024 $ 978,000 Summary of Estimated Cost
Cooperative Agreement $ 818,894
Construction Contingency $ 100,000
Administration $ 50,000
TOTAL $ 968,894
California Environmental Quality Act:

The project entails replacement of existing structures where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced and is exempt from CEQA pursuant to Cal. Code Regs., tit. 14, § 15302.

Recommendation:

Adopt a resolution to (1) approve project conceptual design; (2) authorize the City Manager to execute a cooperative purchase agreement with Williams Scotsman, Inc., through a cooperative procurement contract solicited by Region 4 Educational Service, in an amount not-to-exceed $818,894; and (3) authorize the Public Works Director to negotiate and execute contract change order(s) in an aggregate amount not to exceed $100,000 for Fire Station No.1 Modular Building, Project No. 3465.

Attachments:
(1) Resolution
(2) Conceptual Design
(3) Cooperative Purchase Agreement
(4) Change Order Policy

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Attachment 1
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING PROJECT CONCEPTUAL DESIGN; AUTHORIZE THE CITY MANAGER TO EXECUTE A COOPERATIVE PURCHASE AGREEMENT WITH WILLIAMS SCOTSMAN, INC., THROUGH A COOPERATIVE PROCUREMENT CONTRACT SOLICITED BY REGION 4 EDUCATIONAL SERVICE, IN AN AMOUNT OF $818,894; AND AUTHORIZE THE PUBLIC WORKS

DIRECTOR TO NEGOTIATE AND EXECUTE CONTRACT CHANGE ORDER(S) IN AN AGGREGATE AMOUNT NOT TO EXCEED $100,000 FOR FIRE STATION NO. 1 MODULAR BUILDING, PROJECT NO. 3465
WHEREAS, Fire Station No.1 Modular Building, Project No. 3465 (“Project”) is included in the adopted 2025-2029 Capital Improvement Program; and
WHEREAS, the Project provides for the replacement of existing modular building at Main Fire Station No.1 located at 777 S. Park Victoria Drive in Milpitas that has exceeded its useful life; and WHEREAS, the existing modular building was deemed to be unsafe to continue any functions due its deteriorating condition and recommended to be replace in 2022; and WHEREAS, the Purchasing Agent determined the solicitation methods under Section I-2-3.01 (“Selection of Solicitation Methods”) of the City of Milpitas Municipal Code was not practicable and procuring the a new modular building through a cooperative procurement agreement would be the most effective approach for the Project; and
WHEREAS, the City of Milpitas Municipal Code Section I-2-3.05 (d) (“Public Agency Purchases”) specifically authorizes the City Manager to execute agreement to purchase supplies and services without complying with the quotation or bidding requirements of Chapter 2 – Purchasing of the Municipal Code, if such purchases are based on an agreement or entered into by any public agency or cooperative purchasing program utilizing public agency procurements as the basis for contracts offered, regardless of whether the City is a named party to the agreement or an actual participant in such a program, provided that: (i) the underlying purchase was made using competitive negotiation or procurement procedures, and may include a nationally bid cooperative contract; and (ii) the public agency is a "public agency" as defined in Government Code section 6500; and WHEREAS, OMNIA Partners is a shared services and supply chain optimization company dedicated to public procurement, which began operation on January 1, 2019. Each contract in the OMNIA Partners cooperative contract portfolio has been competitively solicited by a lead public agency. All contracts previously solicited, issued and awarded by lead public agencies remain in full force and effect in accordance with their respective contract terms and conditions; and WHEREAS, the City of Milpitas is a member of OMNIA Partners cooperative purchasing organization by virtue of its membership with National IPA (now known as OMNIA Partners), effective September 26, 2012, and is assigned participation number 1036843; and WHEREAS, on December 3, 2020, Region 4 Education Service Center (Region 4 ESC) issued on behalf of itself, other government agencies, non-profits, and all members of OMNIA, Request for Proposal (RFP) #21-05. As a result of that solicitation, Region 4 ESC awarded to Williams Scotsman, Inc. contract No. R210503 entitled “Modular Buildings, Portable Storage, and Relocatable Walkways”; and

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2 Resolution No. ____
WHEREAS, OMNIA Partners has contract No. R210503 available through its cooperative purchasing organization to all of its public agency members; and WHEREAS, the Purchasing Agent has reviewed all documentation related to RFP #21-05 and contract No. R210503 awarded to Williams Scotsman, Inc. by Region 4 ESC and has determined the contract is current through September 30, 2025, the underlying purchase was made using competitive bidding procedures at least as restrictive as those of the City of Milpitas, and Region 4 ECS meets the definition of a public agency as defined by Government Code Section 6500; and WHEREAS, staff recommends the City Council to approve the Project conceptual design and authorize the City Manager to execute a cooperative purchase agreement with Williams Scotsman, Inc., through a cooperative procurement contract solicited by Region 4 Educational Service, in the amount of $818,894; and
WHEREAS, sufficient funds are available in the Project budget to execute a cooperative purchase agreement with Williams Scotsman, Inc., in the amounts of $818,894; and WHEREAS, the City Engineer has reviewed the Project conceptual design and recommends approval of that design by the City Council; and
WHEREAS, staff recommends the City Council authorize Public Works Director to negotiate and execute change order(s) in an amount not to exceed $100,000; twelve percent (12%) of the total contract value due to the Project’s tight completion schedule and staff’s capability to respond swiftly to unanticipated construction conditions to limit potential claims or risk to the City.

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 approves the Project conceptual design.

3. The City Council hereby authorizes the City Manager to execute a cooperative purchase agreement with Williams Scotsman, Inc., through a cooperative procurement contract solicited by Region 4 Educational Service Center, in the amount of $818,894.

4. The Public Works Director is hereby authorized to negotiate and execute contract change order(s) in an aggregate amount not to exceed $100,000 for the Project.

PASSED AND ADOPTED this day of , 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

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3 Resolution No. ____
ATTEST: APPROVED:
_____________________________ __________________________ Suzanne Guzzetta , City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
_____________________________
Michael Mutalipassi, City Attorney

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1 3 42
134 2
WILLIAMS SCOTSMAN INC. ALL RIGHTS RESERVED ©
DATE:

DRAWN BY:

WILLIAMS SCOTSMAN INC.
4646 East Van Buren Street,
Suite 400, Phoenix, AZ 85008
800.782.1500 l
WILLSCOT.COM
OWNERSHIP OF DOCUMENTS: THIS DOCUMENT AND THE IDEAS AND DESIGNS INCORPORATED HEREIN ARE “INSTRUMENTS OF SERVICE”WHICH ARE, AND SHALL REMAIN, THE PROPERTY OF WILLSCOT AND ARE NOT TO BE: REPRODUCED, TRANSFERRED IN HARD OR ELECTRONIC FORM; USED IN WHOLE OR IN PART BY ANY OTHER ARCHITECT, MANUFACTURER OR CONTRACTOR; OR USED ON ANY OTHER PROJECT WITHOUT EXPRESS WRITTENCONSENT OF WILLSCOT.THE ARCHITECT / ENGINEER WHO HAS AFFIXED THEIR SEAL HERETO SHALL HAVE NO RESPONSIBILITY FOR AND SHALL BE INDEMNIFIED FROM AND AGAINST ANY ANDALL LOSS, COST, DAMAGE OR EXPENSE RELATED TO RECIPIENT’S / CLIENT’S BREACH OF THE AFOREMENTIONED CONDITIONS.

DISCLAIMER: THIS DOCUMENT IS TO BE EVALUATED IN CONJUNCTION WITH ALL RELATED PROJECT DOCUMENTATION. ANY DISCREPANCIES IDENTIFIED IN THIS DOCUMENT, INCLUDING THOSE RELATED TO DIMENSIONS, MUST BE REPORTED IMMEDIATELY TO THE ARCHITECT / ENGINEER PRIOR TO PROCEEDING WITH ANY BUILDING MANUFACTURE OR OTHER WORK. IN THE EVENT OF CONFLICT, THE SPECIFICATIONS, DIMENSIONS AND RENDERINGS HEREIN TAKE PRECEDENCE OVER RECIPIENT’S / CLIENT’S REQUIREMENTS.

ASSET TYPE:

FILE #:

MODEL:

REP:

ASSET #:

PRELIMINARY DRAWING NOT FOR CONSTRUCTION
11/1/2023 4:53:48 PMA-101

FLOOR PLAN/DETAILS
MILPITAS CA. FIRE STATION
2023

MWMILPITAS, CA
SM
WS2023-1465
SM6436
GULLEY

OFFICE SPACE

ESSENTIALS SCHEDULE
TYPE
MARK SYMBOL / 3D VISUAL DESCRIPTION QTY.

A-15 REFRIGERATOR FULL
SIZE - A LA CARTE 1
V-4 PROFESSIONAL
WORKSTATION 1
Grand total: 2

EXTERIOR VAP SCHEDULE
TYPE
MARK DESCRIPTION QTY.

EX-1 VAP EXT_ADA RAMP_BASE SECTION 1
EX-2 VAP EXT_ADA RAMP_MID SECTION 4
EX-3 VAP EXT_ADA RAMP_TOP SECTION 2
EX-4 VAP EXT_ADA RAMP_SWITCHBACK LANDING 1
EX-5 VAP EXT_18x62 PLATFORM EXTENSION 1
EX-6 VAP EXT_62x62 PLATFORM WITH OPT CANOPY 3
EX-7 VAP EXT_30-36 INCH STAIR SECTION 1
Grand total: 13
3D ELEVATION (FOR REFERENCE ONLY)2

1. EXTERIOR DIMENSIONS ARE FROM WOOD FRAMING TO WOOD FRAMING.

2. INTERIOR DIMENSIONS ARE FROM WALL FINISH TO WALL FINISH.

3. DIMENSIONS ARE APPROXIMATED. ACTUAL DIMENSIONS WILL BE CONFIRMED ONCE A UNIT IS ASSIGNED .

4. IF DRINKING FOUNTAIN & MOP SINK ARE REQUIRED, IT SHALL BE PROVIDED ON SITE BY OWNER.

5. STAIRS & RAMPS ARE RECOMMENDATIONS ONLY AT ENTRANCES. PLEASE REFER TO PROPOSAL FOR ITEMS INCLUDED.

6. FURNITURE SHOWN FOR SPACE PLANNING PURPOSES ONLY. PLEASE REFER TO PROPOSAL FOR ITEMS TO BE INCLUDED IN PRICING.

7. SECOND DOOR PER UNIT MAY BE REQUIRED PER LOCAL JURISDICTION. (BUSINESS USE: SPACES UNDER 49 OCCUPANTS AND 75 FEET OF TRAVEL IS ACCEPTABLE TO HAVE ONE MEAN OF EGRESS).

ISSUE DATE DESCRIPTION
3/16" = 1'-0"
PLAN NORTH (FOR REFERENCE ONLY)3
3/16" = 1'-0"
PLAN SOUTH (FOR REFERENCE ONLY)4
3/16" = 1'-0"
PLAN WEST (FOR REFERENCE ONLY)5
3/16" = 1'-0"
PLAN EAST (FOR REFERENCE ONLY)6
3/16" = 1'-0"
FIRE STATION 1 FLOOR PLAN1
(NOT REFLECTIVE OF ACTUAL FIRE STATION 1 LAYOUT)
(NOT REFLECTIVE OF ACTUAL FIRE STATION 1 LAYOUT)
(NOT REFLECTIVE OF ACTUAL FIRE STATION 1 LAYOUT)
(NOT REFLECTIVE OF ACTUAL FIRE STATION 1 LAYOUT)
(NOT REFLECTIVE OF ACTUAL FIRE STATION 1 LAYOUT)

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38077.00180\34047676.2 C2

CITY OF MILPITAS

COOPERATIVELY PURCHASED AGREEMENT FOR
PROCUREMENT AND INSTALLATION OF A 36’ X 60’ MODULAR OFFICE BUILDING This Cooperatively Purchased Agreement for Procurement and Installation of a 36’ x 60’ Modular Office Building (“Agreement”) is entered into as of this 18 th day of June, 2024 by and between the City of Milpitas, a municipal corporation organized under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”) and Williams Scotsman, Inc., a Maryland Corporation with its principal place of business at 901 South Bond Street, Suite 600, Baltimore, Maryland 21231 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS
WHEREAS, on October 1, 2021, the Region 4 Education Service Center (“Region 4 ESC”) awarded a contract to Williams Scotsman, Inc. entitled Contract # R210503 for Modular Buildings, Portable Storage, and Relocatable Walkways pursuant to a competitive solicitation process performed in accordance with the competitive procurement rules applicable to the Region 4 ESC; and WHEREAS, pursuant to the City’s purchasing ordinance, the City is authorized to utilize cooperative purchasing to utilize contracts based on an agreement or entered into by any public agency or cooperative purchasing program utilizing public agency procurements as the basis for contracts offered, regardless of whether the City is a named party to the agreement or an actual participant in such a program; and
WHEREAS, the Original Contract is listed in the purchasing schedule offered by OMNIA Partners cooperative purchasing program, a public sector cooperative purchasing program; and WHEREAS, the City desires to rely on the Original Contract entered into between Region 4 ESC and Williams Scotsman, Inc. and procure and install a 36’ x 60’ Modular Office Building on the same terms and conditions set forth therein pursuant to this Agreement.

NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:

1.Recitals. The foregoing recitals are true and correct and are a part of this Agreement.

2.Term. The term of this Agreement shall be from June 18, 2024, to May 31, 2029, unless earlier terminated as provided herein. The City reserves the right to review the Contractor’s performance at the end of each year and cancel all or part of the Agreement.

3.Incorporation By Reference. The Scope of Services is attached hereto as Exhibit “A” and incorporated herein by this reference. The Original Contract, including all documents incorporated by reference therein, is attached hereto as Exhibit “B” and incorporated herein by this reference – all references in the Original Contract to Region 4 ESC shall be understood to mean the City of Milpitas. The Contractor’s Proposal is attached hereto as Exhibit “C” and is incorporated herein by reference. The incorporation of the Original Contract and the Contractor’s Proposal as part of this Agreement is subject to the order of precedence set forth below.

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4.Precedence of Agreement Documents. If there is a conflict between Agreement documents, the document highest in precedence shall control. The precedence shall be:

One: This Agreement
Two: The Original Contract
Three: The Contractor’s Proposal
Amendments, supplemental agreements, and approved revisions to the Agreement or any part thereof become a part of item One above.

5.Obligations of the City.

A. The City shall be obligated to pay Contractor based upon the unit and/or lump sum prices set forth in the Original Contract and/or the Contractor’s Proposal for services authorized by the City.

B. Payments to the Contractor shall be made within 30 days after receipt of an original invoice from the Contractor and acceptance of the services by City, in accordance with the following payment milestones:
o40% Deposit Due at Time Contract is executed
o40% Due Upon Delivery of Modules to site
o18% due upon Notice of Substantial Completion
o2% Balance due upon Final Completion
C. In no event shall the total amount paid for this Agreement exceed Eight Hundred Eighteen Thousand Eight Hundred Ninety-Four Dollars and Zero cents ($818,894.00) unless otherwise agreed to by the parties in writing.

6.Obligations of the Contractor.

A. Contractor shall perform the Scope of Services as required by this Agreement.

B. Contractor shall obey all Federal, State, local, and special district laws, ordinances, and regulations. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Scope of Services is being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of the Scope of Services, including any delay, shall be Contractor’s sole responsibility and Contractor shall indemnify City from liability arising out of the same. It shall be mandatory upon the Contractor and all subcontractors to comply with all applicable California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 1771.1) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 and to be registered with the California Department of Industrial Relations shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1771.4, 1725.5 and 1771.1.

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38077.00180\34047676.2 C2
C. The Contractor shall keep a tally of the cost for the services ordered by City. The Contractor shall not accept work orders from the City if the cost for the work will exceed the amount indicated above unless otherwise agreed to by the parties in writing.

7.Audit. City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its statements to City as a condition precedent to any payment to Contractor.

8.Hold Harmless and Indemnification. To the fullest extent permitted by law, Contractor shall defend, 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 alleged acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.

9.Amendments. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon mutual written approval by the City and Contractor.

10.Anti-Discrimination. In the performance of the terms of this Agreement, Contractor shall not engage in, nor permit subcontractors to engage in, discrimination in employment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons.

11.Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished documents and data and other information of any kind prepared by Contractor in connection with the performance of services under this Agreement.

Contractor shall be required to provide such documents and other information within fifteen (15) days of the request. The Contractor 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 any fiscal year if funds are not appropriated for the next succeeding fiscal year. If funds are appropriated for a portion of the fiscal year, the Agreement will terminate, without penalty, liability or expense of any kind at the end of the term for which funds are appropriated. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other agreements. City budget decisions are subject to the discretion of the Mayor and City Council. Contractor’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.

Notwithstanding any other provision in this Agreement, it is hereby agreed that upon commencement of production, the City shall promptly remit the full amount due for the unit price to the Contractor without delay.

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38077.00180\34047676.2 C2

12.Complete Contract. This Agreement shall constitute the complete Agreement between the parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the parties hereto.

13.Time of Performance. Time is of the essence in this Agreement.

14.Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other party, and any such assignment without said consent shall be void.

15.Authority to Execute Contract. Both City and Contractor do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute contracts for such party.

16.Insurance. Contractor shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under Exhibit “D” (Insurance Requirements), attached hereto and incorporated herein by this reference. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required therein.

17.Jurisdiction and Venue. Jurisdiction is in the State of California and venue lies in Santa Clara County.

18.Wage Theft Prevention. Contractor, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws.

Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance. BY SIGNING THIS AGREEMENT,

CONTRACTOR 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 CONTRACTOR OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS.

CONTRACTOR FURTHER AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS EITHER

FULLY SATISFIED EACH JUDGMENT, DECISION OR ORDER, OR, IF ANY JUDGMENT,

DECISION OR ORDER HAS NOT BEEN FULLY SATISFIED, CONTRACTOR AFFIRMS THAT IT

OR ITS SUBCONTRACTOR(S) IS CURRENTLY SATISFYING SAID JUDGMENT, DECISION OR

ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN APPROVED BY THE APPLICABLE

COURT/GOVERNMENT AGENCY AND THAT CONTRACTOR OR ITS SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Contractor or a subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or Contractor learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Contractor shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Contractor or its subcontractor(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Contractor or its subcontractor is subject to a payment or other alternative plan, the Contractor or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or

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the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

Failure to comply with any part of this 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. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

19.Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Contractor:

Williams Scotsman Inc.
901 South Bond Street, Suite 600
Baltimore, Maryland 21231
Attn: Greg Gulley
Construction Manager
City:

City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Michael Silveira, P.E.

City Engineer
Public Works Department – Engineering Division
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address.

Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

20. Limited Warranty. Seller hereby warrants to Buyer that at the time of delivery Seller has good and marketable title to the Equipment, free and clear of all liens and encumbrances arising by or through the Seller. Seller warrants to Buyer that the materials and equipment (the “Equipment”) furnished by Seller hereunder will be of good quality and new (factory built) and free from defects for a period of one (1) year from the date of delivery of the Equipment. Further, Seller hereby assigns to Buyer all assignable manufacturers' warranties, which shall be subject to the specific manufacturer's warranty provisions and time period. During the warranty period, provided that Buyer notifies Seller in writing of any defects, malfunctions, or leaks within ten (10) business days of the occurrence thereof, Seller shall repair or replace all defective parts of the Equipment which are covered under Seller's warranty (excluding HVAC filters, fire extinguishers, fuses/breakers, light bulbs, or other ordinary course repairs or maintenance). In any event, the liability of Seller shall be limited solely to the repairing of defects in the Equipment. Seller shall have no liability for the repair of any defect or condition resulting from Buyer’s relocation of the Equipment, modification or alterations of the Equipment not executed by Seller, work to the Equipment not executed by Seller, use of the Equipment for a purpose for which it was not intended, abuse, vandalism, misuse of the Equipment, excessive wear and tear, failure to properly maintain the Equipment, failure to properly maintain the HVAC system and/or failure to provide timely notice to Seller. The repair of the Modular by Seller due to a defect or condition resulting from any of the preceding causes shall result in additional charges to Buyer. SELLER SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LIQUIDATED,

CONSEQUENTIAL, INCIDENTAL, ACTUAL, OR PUNITIVE DAMAGES, COSTS, OR EXPENSES

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ARISING IN RELATION TO SELLER’S LIMITED WARRANTY, OR ANY REPAIRS PERFORMED PURSUANT TO THE LIMITED WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,

SELLER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE

MODULAR EQUIPMENT AND ANY MAINTENANCE OR REPAIR WORK PERFORMED BY

SELLER INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
[SIGNATURES ON NEXT PAGE]

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SIGNATURE PAGE FOR AGREEMENT FOR PROCUREMENT AND INSTALLATION OF A 36’ X 60’ MODULAR OFFICE BUILDING
BETWEEN THE CITY OF MILPITAS AND WILLIAMS SCOTSMEN INC.

IN WITNESS WHEREOF, the parties have entered into this Agreement as of the 18th day of June, 2024.

CITY OF MILPITAS
Approved By:

Ned Thomas, City Manager
Date
Approved As To Form:

Michael Mutalipassi, City Attorney
WILLIAMS SCOTSMAN INC.

Signature
Greg Gulley
Name
Construction Manager
Title
Date
Approved:

Luz Cofresi-Howe, Finance Director/Risk Manager
Approved As To Content:

Christian Di Renzo, Public Works Director

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EXHIBIT “A”

SCOPE OF SERVICES
Attached Behind This Page

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EXHIBIT “B”

ORIGINAL CONTRACT
Attached Behind This Page

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EXHIBIT “C”
CONTRACTOR’S PROPOSAL
Attached Behind This Page

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EXHIBIT “D”

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. ___ 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.

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Professional Liability (Errors and Omissions):
___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate. _X_ (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.

Cyber Liability Insurance
___ Cyber Liability Insurance with limits not less than $1,000,000 per claim.

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.

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Surety Bonds:

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

Other Insurance Provisions:

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

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___ 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”):

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

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

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

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

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

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

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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:

Verification of Coverage:

Failure to Comply:

Applicability of Coverage:

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CITY OF MILPITAS

COOPERATIVELY PURCHASED AGREEMENT FOR
PROCUREMENT AND INSTALLATION OF A 36’ X 60’ MODULAR OFFICE BUILDING

This Cooperatively Purchased Agreement for Procurement and Installation of a 36’ x 60’ Modular Office Building (“Agreement”) is entered into as of this 18th day of June, 2024 by and between the City of Milpitas, a municipal corporation organized under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”) and Williams Scotsman, Inc., a Maryland Corporation with its principal place of business at 901 South Bond Street, Suite 600, Baltimore, Maryland 21231 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS

WHEREAS, on October 1, 2021, the Region 4 Education Service Center (“Region 4 ESC”) awarded a contract to Williams Scotsman, Inc. entitled Contract # R210503 for Modular Buildings, Portable Storage, and Relocatable Walkways pursuant to a competitive solicitation process performed in accordance with the competitive procurement rules applicable to the Region 4 ESC; and

WHEREAS, pursuant to the City’s purchasing ordinance, the City is authorized to utilize cooperative purchasing to utilize contracts based on an agreement or entered into by any public agency or cooperative purchasing program utilizing public agency procurements as the basis for contracts offered, regardless of whether the City is a named party to the agreement or an actual participant in such a program; and

WHEREAS, the Original Contract is listed in the purchasing schedule offered by OMNIA Partners cooperative purchasing program, a public sector cooperative purchasing program; and

WHEREAS, the City desires to rely on the Original Contract entered into between Region 4 ESC and Williams Scotsman, Inc. and procure and install a 36’ x 60’ Modular Office Building on the same terms and conditions set forth therein pursuant to this Agreement.

NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:

1. Recitals. The foregoing recitals are true and correct and are a part of this Agreement.

2. Term. The term of this Agreement shall be from June 18, 2024, to May 31, 2029, unless earlier terminated as provided herein. The City reserves the right to review the Contractor’s performance at the end of each year and cancel all or part of the Agreement.

3. Incorporation By Reference. The Scope of Services is attached hereto as Exhibit “A” and incorporated herein by this reference. The Original Contract, including all documents incorporated by reference therein, is attached hereto as Exhibit “B” and incorporated herein by this reference – all references in the Original Contract to Region 4 ESC shall be understood to mean the City of Milpitas. The Contractor’s Proposal is attached hereto as Exhibit “C” and is incorporated herein by reference. The incorporation of the Original Contract and the Contractor’s Proposal as part of this Agreement is subject to the order of precedence set forth below.

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4. Precedence of Agreement Documents . If there is a conflict between Agreement documents, the document highest in precedence shall control. The precedence shall be:

One: This Agreement
Two: The Original Contract
Three: The Contractor’s Proposal

Amendments, supplemental agreements, and approved revisions to the Agreement or any part thereof become a part of item One above.

5. Obligations of the City.

A. The City shall be obligated to pay Contractor based upon the unit and/or lump sum prices set forth in the Original Contract and/or the Contractor’s Proposal for services authorized by the City.

o 40% Deposit Due at Time Contract is executed
o 40% Due Upon Delivery of Modules to site
o 18% due upon Notice of Substantial Completion
o 2% Balance due upon Final Completion

C. In no event shall the total amount paid for this Agreement exceed Eight Hundred Eighteen Thousand Eight Hundred Ninety Four Dollars and Zero cents ($818,894.00) unless otherwise agreed to by the parties in writing.

6. Obligations of the Contractor.

A. Contractor shall perform the Scope of Services as required by this Agreement.

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C. The Contractor shall keep a tally of the cost for the services ordered by City. The Contractor shall not accept work orders from the City if the cost for the work will exceed the amount indicated above unless otherwise agreed to by the parties in writing.

7. Audit. City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its statements to City as a condition precedent to any payment to Contractor.

8. Hold Harmless and Indemnification. To the fullest extent permitted by law, Contractor shall defend, 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 alleged acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.

9. Amendments. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon mutual written approval by the City and Contractor.

10. Anti-Discrimination. In the performance of the terms of this Agreement, Contractor shall not engage in, nor permit subcontractors to engage in, discrimination in employment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons.

11. Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished documents and data and other information of any kind prepared by Contractor in connection with the performance of services under this Agreement.

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12. Complete Contract. This Agreement shall constitute the complete Agreement between the parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the parties hereto.

13. Time of Performance. Time is of the essence in this Agreement.

14. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other party, and any such assignment without said consent shall be void.

15. Authority to Execute Contract . Both City and Contractor do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute contracts for such party.

16. Insurance. Contractor shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under Exhibit “D” (Insurance Requirements), attached hereto and incorporated herein by this reference. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required therein.

17. Jurisdiction and Venue. Jurisdiction is in the State of California and venue lies in Santa Clara County.

18. Wage Theft Prevention. Contractor, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws.