Agenda packet — Milpitas City Council, June 16, 2026 (part 6 of 11)

Glass/Glazing
Nucor Rebar Fabriction Southwest, inc.

F&F Steel and Stairway, Inc.

Cline Glass Contractors, inc.

Concrete Barrier Dees Burke Engineering Constructors, LLC Reinforcing Steel
Decorative Structural Steel
Building Demolition
CIDH
Description
Asphalt Concrete Paving
Goodfellow Bros Graniterock
Malcolm
A&B Construction
McKim Corporation
Joseph J. Albanese Inc. Ghilotti Construction
F&F Steel and Stairway F&F Steel & Stairways
Malcolm Drilling Co, Inc. Nucor Rebar Fabrication
WC Maloney LLC
Columbia Electric, Inc.

WC Maloney
Dees Burke Engineering Constructors, LLC
List of Sub-Contractors
Malcom Drilling Co., Inc.

W.C. Maloney, LLC
Columbia Electric Inc.

Fence/Gates
Columbia Electric, Inc. Tennyson Electric
All Steel Fence Inc.

DBE
Oliveira Fence, Inc.

Companella Corporation
Electrical Columbia Electric
Bailey Fence Company Oliviera Fence
Malcom Drilling Co., Inc.

All Steel Fence, Inc.

Cline Glass
Los Loza Inc Los Loza Landscaping
Central Valley Reinforcing Inc.

F&F Steel & Stairway Inc
Cline Glass Contractors Inc Cline Glass Contractors Cline Glass Contractors Inc.

Central Valley Reinforcing, Inc.

F&F Steel & Stairway Inc.

Green Vista Landscape
Underground Preston Pipelines Infrastructure Inc. TDW Construction Landscaping
Striping & Signs Sierra Traffic Markings Sierra Traffic Markings Erosion Control & Hydroseed Zumwalt & Associates
Bridge Structural Concrete and Steel Bridgeway Civil Constructors Inc.

Bridge Foundations Rise Drilling
Site Concrete R&R Maher R.R. Maher
2

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NOTICE OF INTENT TO AWARD CONTRACT
Department of Public Works
Project Name: South Milpitas Blvd Road Extension
City Project Number: 2016
Bid Opening Date: May 12, 2026 (2:00 PM)
NOIA Posting Date: May 13, 2026
Project Manager: Anna Highsmith, P.E.

NOIA Posting Location: Addenda & Official Notices

On May 12, 2026, the City of Milpitas (City) held a bid opening for the upcoming South Milpitas Blvd Road Extension Project. The City intends to award the Project contract to the lowest responsive bidder, Andrew M. Jordan, Inc. DBA A&B Construction, at the June 9, 2026, City Council Meeting.

As per Milpitas Municipal Code (MMC) MMC 1-2-3.19 - Protest Procedure, Any interested party may file a protest to a proposed award of a contract in an amount over Ten Thousand Dollars ($10,000). The protest shall be filed with the Purchasing Agent in writing no later than seven (7) calendar days after the posting of the Notice of Intent to award and shall set forth the basis for the protest and any proposed remedy.

All protests shall be in writing and shall contain a complete statement of the legal grounds for the protest; all the facts relevant to the protest; and the form of relief requested and the legal basis for such relief. All protests shall be accompanied by all documentation supporting the grounds for the protest. The protest shall include the name, address and telephone number of the protesting party and the person representing the protesting party, if any.

Protests may be submitted only by a party that has submitted a bid or proposal in response to the contract solicitation. A subcontractor of a bidder or proposer may not submit a protest. A party may not rely on a protest submitted by another party but must timely pursue its own protest.

Protests can only be submitted by the party that submitted the bid by one of the following methods:

Via mail or hand delivered, Monday thru Friday, between 8:00 a.m. and 5:00 p.m. to:

Attn: Luz Cofresi-Howe,
Finance Director
455 E. Calaveras Blvd,
Milpitas, CA 95035
OR, via e-mail @ [email protected]

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May 13, 2026
City of Milpitas
Attn: Reshad Osman, Assistant Engineer
455 E. Calaveras Boulevard
Milpitas, CA 95035
Subject: Formal Withdrawal of Bid Submission Due to Mistake South Milpitas Boulevard Road Extension Project – Project No. 2016 Dear Mr. Osman:

On behalf of A&B Construction Inc. (“A&B”), I respectfully submit this letter to formally withdraw our bid submitted on May 12, 2026, for the South Milpitas Boulevard Road Extension Project, Project No. 2016, issued by the City of Milpitas.

Following bid submission, our estimating team identified a significant error in the bid documents resulting from a malfunction within an Excel macro contained in our Underground (Storm Drain, Water, and Recycled Water) estimating spreadsheet. The malfunction caused certain formulas to become inoperable during preparation of our pricing. While we are still evaluating the precise cause of the spreadsheet corruption, we believe it may have been related to host computer security settings, antivirus software, Excel add-ins, or a combination thereof.

Unfortunately, the spreadsheet malfunction prevented major cost components from being properly captured in our submitted proposal, resulting in materially inaccurate pricing. Specifically, the spreadsheet failed to include:

1. The purchase cost for Storm Drain, Domestic Water, and Recycled Water pipe materials, estimated at approximately $221,000; and

2. The precast structures associated with the Storm Drain installation, estimated at approximately $30,000.

As a result of the Excel macro failure, A&B’s submitted pricing for Bid Items 12, 13, and 14 did not reflect our intended bid. Based on our corrected spreadsheet calculations, those bid items should have been approximately:
• Bid Item 12: $325,000
• Bid Item 13: $293,600
• Bid Item 14: $191,000
The net effect of the error was an understatement of approximately $251,000 in our total bid. After correcting the spreadsheet issue, we believe our intended total bid amount would have been approximately $4,966,870.

Because the submitted proposal materially differs from the bid A&B intended to submit, and in the interest of maintaining the integrity of the procurement process, A&B respectfully requests withdrawal of its bid due to this clerical and software-related mistake.

We sincerely apologize for any inconvenience this may cause and appreciate the City’s understanding and consideration of this request. A&B remains very interested in future opportunities to work with the City of Milpitas and hopes to participate in future solicitations.

Please confirm receipt and acceptance of this withdrawal request at your earliest convenience.

Sincerely,
A&B Construction Inc.

Robert Rosas
Vice President – Estimating

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455 E. Calaveras Blvd., Milpitas, CA 95035 www.milpitas.gov Superior Customer Service  Open Communication  Integrity and Accountability  Trust and Respect  Recognition and Celebration

CITY OF MILPITAS
Department of Public Works – Engineering Division
MAY 19, 2026
Robert Rosas
Vice President- Estimating
A&B Construction Inc.
225 3rd Street
Oakland, CA 94607-4309
SUBJECT: Acceptance of Bid Withdrawal for South Milpitas Boulevard Road Extension Project, CIP No. 2016
Dear Mr. Rosas,
The City of Milpitas acknowledges receipt of your letter dated May 13, 2026, formally requesting withdrawal of A&B Construction Inc.’s bid submitted on May 12, 2026, for the South Milpitas Boulevard Road Extension Project, CIP No. 2016, citing a material error caused by a malfunction in your estimating spreadsheet.

In accordance with California Public Contract Code (PCC) Section 5103, A&B Construction Inc.(A&B) has established to the satisfaction of the City that the mistake was a clerical error, which made the bid materially different than A&B intended it to be and has provided written notice within five working days after the bid opening. The City understands that the pricing submitted was materially affected by a malfunction in your estimating spreadsheet, which prevented certain cost components from being properly captured prior to submission. The City recognizes that this type of clerical and software-related error can occur in the preparation of complex bid documents.

Pursuant to PCC Section 5101 and after careful review of your withdrawal request and the supporting documentation, the City of Milpitas hereby grants its consent to relieve A&B of its bid submitted on May 12, 2026.

The City of Milpitas appreciates A&B Construction Inc.’s transparency in promptly identifying and reporting this error, and for your continued interest in working with the City. We look forward to the possibility of your participation in future solicitations.

Should you have any questions or require further assistance, please do not hesitate to contact our office.

Sincerely,
Michael Silveira, P.E.

City Engineer

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NOIA Posting Location: Addenda & Official Notices

On May 12, 2026, the City of Milpitas (City) held a bid opening for the upcoming South Milpitas Blvd Road Extension Project. The City intends to award the Project contract to the lowest responsive bidder, Joseph J. Albanese, Inc., at the June 9, 2026, City Council Meeting.

Protests can only be submitted by the party that submitted the bid by one of the following methods:

Via mail or hand delivered, Monday thru Friday, between 8:00 a.m. and 5:00 p.m. to:

Attn: Luz Cofresi-Howe,
Finance Director
455 E. Calaveras Blvd,
Milpitas, CA 95035
OR, via e-mail @ [email protected]

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Attachment I
Construction Change Order Policy for the South Milpitas Blvd Road Extension, CIP No. 2016 2021 City Council Approved Construction Change Order Policy Construction Award Individual Administrative Cumulative Award Amount Change Order Authority Change Order Authority Less than $100,000 $10,000 $15,000
Over $100,000 10% of Award or $20,000 15% of Award or $40,000 whichever is less whichever is smaller
South Milpitas Blvd Road Extension, CIP No. 2016 Change Order Policy Construction Award Individual Administrative Cumulative Award Amount Change Order Authority Change Order Authority $5,730,00 N/A $1,146,000

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38077.00180\29167975.12 C2
1 CITY OF MILPITAS

PROFESSIONAL SERVICES AGREEMENT
CONTRACT NO.

This Agreement is made and entered into as of ________________, (“Effective Date”) by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and H.T. Harvey & Associates, a Stock Corporation, with its principal place of business at 720 University Avenue, Suite 200, Los Gatos, CA 95032 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:

SOUTH MILPITAS BLVD BRIDGE - MITIGATION & MONITORING SUPPORT (hereinafter referred to as “the Project”).

B. Consultant is duly licensed and has the necessary qualifications to provide such services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit A.

2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit B.
b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Hundred Eleven Thousand Four Hundred Ninety Eight Dollars and Zero Cents ($111,498.00). This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within thirty (30) days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes

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2 in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

4. Maintenance of Records.

Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the Agreement term and for four (4) years from the date of final payment under the Agreement for inspection by City.

5. Term.

The term of this Agreement shall be from June 16, 2026, to December 31, 2032, unless earlier terminated as provided herein. The City reserves the right to review the Consultant’s performance at the end of each year and cancel all or part of the Agreement.

6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.

9. Assignment and Subconsultant

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3 Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.

10. Independent Consultant
Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.

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

12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is One Thousand Dollars and Zero Cents ($1,000.00) or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with

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4 the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations.

Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.

14. Verification of Employment Eligibility.

By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.

15. Laws and Venue.

This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California.

16. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of

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38077.00180\29167975.12 C2
5 the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. c. The Consultant understands and accepts that at all times; the Agreement is subject to appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of Agreement term. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. City budget decisions are subject to the discretion of the Mayor and City Council. Consultant’s assumption of risk of possible non-appropriation is a part of the consideration for the Agreement. This section controls against any and all other provisions of the Agreement.

17. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.

18. Organization
Consultant shall assign Zachery Gizicki as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

20. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:

CITY:

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

H. T. Harvey & Associates
720 University Avenue, Suite 200
Los Gatos, CA 95032
Attn: Zachery Gizicki, Project Manager
and shall be effective upon receipt thereof.

22. Third Party Rights

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38077.00180\29167975.12 C2
6 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

23. Equal Opportunity Employment.

Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

24. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.

25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

26. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

27. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

28. Time of Essence
Time is of the essence for each and every provision of this Agreement.

29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

30. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other

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38077.00180\29167975.12 C2
7 consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

31. Wage Theft Prevention
a. Consultant, and any subconsultant it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.
b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO

EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS

THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY

SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS CURRENTLY

SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR

ALTERNATIVE PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY

AND THAT CONSULTANT OR ITS SUBCONSULTANT(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.
c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Consultant or a subconsultant it employs to perform work under this Agreement has violated any applicable wage and hour law, or Consultant learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Consultant shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order.

Consultant or its subconsultant(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order.

If the Consultant or its subconsultant is subject to a payment or other alternative plan, the Consultant or its subconsultant shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.
d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.
e. Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.

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8 f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.
[SIGNATURES ON FOLLOWING PAGE]

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9 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF MILPITAS
AND H. T. HARVEY & ASSOCIATES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

WWillie A. Hopkins, Jr., City Manager

Date
Approved As To Form:

Christian M. Curtis
City Attorney
Approved:

Luz Cofresí-Howe
Finance Director/Risk Manager

Approved As To Content:

Christian Di Renzo
Public Works Director
H. T. HARVEY & ASSOCIATES

Signature

Name

Title

Date

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38077.00180\29167975.12 C2
10 EXHIBIT A
Scope of Services
South Milpitas Blvd Bridge – Mitigation & Monitoring Support The consultant shall provide ecological consulting services to the City of Milpitas (City) to support implementation of the riparian Mitigation and Monitoring Plan (MMP) for the South Milpitas Boulevard Bridge Project (H. T. Harvey 2025). The project involves construction of a clear span bridge over Penitencia Creek as part of a broader effort to improve transportation infrastructure and provide habitat enhancements. It includes temporary and permanent impacts to riparian and channel habitat and requires both on-site mitigation and off-site mitigation at the City-owned Hidden Lake Park.

The Consultant’s scope of services shall include review of construction and planting plans, preparation of a Biological As-built Report, and annual post-construction mitigation monitoring and reporting as required by the MMP and the associated regulatory permits from Regional Water Quality Control Board (RWQCB), U.S. Army Corps of Engineers (USACE), and California Department of Fish and Wildlife (CDFW).

The City’s contractor/landscape architect will complete the riparian mitigation landscape construction documentation, bridge construction, restoration grading, plant installation, and maintenance activities. The consultant’s responsibilities begin during construction planning and continue through Year 3 of mitigation monitoring on site and Year 5 of mitigation monitoring at Hidden Lake Park.

Task 1. Habitat Restoration Construction and As-Built Support H. T. Harvey assumes up to 6 site visits to:
• Establish and collect eight permanent photopoints for the post-construction ecological monitoring at the on-site and off-site mitigation area and collect baseline vegetation data at the on-site mitigation area.
• Conduct a walkthrough with the City’s contractor to discuss riparian restoration approaches prior to grading.
• Determine whether soil decompaction/compost amendment is necessary following earthwork and prior to seeding at the on-site mitigation area. • Flag planting locations for the City’s landscape architect. • Conduct an on-site kick-off meeting with the City’s contractor immediately before planting at the off-site mitigation area and confirm planting locations and quantities. • Document as-built conditions and collect post-project photodocumentation at the on-site and off-site mitigation areas.

Within eight weeks of initial site restoration, the consultant will prepare a Biological As-Built Report suitable for the City’s submittal to the RWQCB, USACE, and CDFW including:
• Pre- and post-installation photodocumentation (both on-site and off-site). • Confirmation of as-built planting areas, species, and quantities.

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11 • A comparison of the as-built condition to the MMP’s conceptual plan. • Baseline pre-project vegetation cover at the on-site area. •
The consultant shall procure services from San Francisco Bay Bird Observatory to grow the container plants and collect willow stakes for installation at Hidden Lake Park.

Deliverables:
• Draft and Final Biological As-Built Report.

Task 1 Conditions:
• The City will provide marked-up as-built construction plans showing any deviations from the permitted plans in the MMP for H. T. Harvey’s inclusion in the Biological As-Built Report.
• SFBBO will source willow stakes and container plants for installation at the off-site restoration area and for up to 3 years of replacement planting. • The City’s contractor will install the willow stakes and container plants (and any replacement plants) at Hidden Lake Park.
• The City’s contractor will source the seed for on-site restoration. • The City’s contractor/landscape architect will install an irrigation system or develop an irrigation plan for the willow stakes and container plants at Hidden Lake Park. • On-site and off-site revegetation will occur in 2026.

Task 2. Year 1 Monitoring (2027)
H. T. Harvey’s restoration ecologists will conduct up to three maintenance monitoring visits (spring, summer, fall) to assess maintenance needs at the on-site and off-site mitigation areas. Observations will include presence of trash/debris, invasive species presence, erosion issues, and plant health/replanting needs. H. T. Harvey will coordinate with the City’s contractor as necessary to ensure maintenance activities, such as irrigation and weed control, are implemented. In the fall, H. T. Harvey restoration ecologists will conduct annual monitoring at the on-site and off-site mitigation areas. Annual monitoring will include:
• Plant cover in the intermittent stream/freshwater marsh and riparian annual grassland habitats at the on- site mitigation area.
• Cover of invasive plant species at both the on-site and off-site mitigation areas. • Cover of native woody species at the off-site mitigation area. • Survival of planted willows at the off-site mitigation area. • Survival of other planted container plants at the off-site mitigation area. • Photodocumentation at the established photopoints.

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12 A Year 1 Monitoring Report will summarize findings at the on-site and off-site mitigation area and provide recommendations.

Deliverables:
• Email summary of maintenance observations following the maintenance monitoring events to the City and the City’s contractor.
• Draft and Final Year 1 Annual Monitoring Report.

Task 2 Conditions:
• The City will provide marked-up as-built construction plans showing any deviations from the permitted plans in the MMP for H. T. Harvey’s inclusion in the Biological As-Built Report.
• SFBBO will source willow stakes and container plants for installation at the off-site restoration area and for up to 3 years of replacement planting. • The City’s contractor will install the willow stakes and container plants (and any replacement plants) at Hidden Lake Park.
• The City’s contractor will source the seed for on-site restoration. • The City’s contractor/landscape architect will install an irrigation system or develop an irrigation plan for the willow stakes and container plants at Hidden Lake Park. • On-site and off-site revegetation will occur in 2026.

Task 3. Year 2 Monitoring (2028)
The consultant will conduct the same activities described in Task 2 in 2028. The same deliverables and assumptions apply.

Task 4. Year 3 Monitoring (2029)
The consultant will conduct the same activities described in Task 2 in 2029. The same deliverables and assumptions apply. If all criteria are met, monitoring of the on-site mitigation may cease following submission of the Year 3 Annual Monitoring Report.

Task 5. Year 4 Monitoring (2030)
The consultant shall conduct the same activities described in Task 2 in 2030, except only for the off-site mitigation area. Only one maintenance monitoring visit will occur in Year 4 concurrent with annual monitoring. The same deliverables and assumptions apply.

Task 6. Year 5 Monitoring (2031)
The consultant shall conduct the same activities described in Task 5 in 2031. The same deliverables and

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13 assumptions apply.

Contingency (15%)
This task provides additional budget as needed for additional tasks related to the project up to the limit of the budget. The proposed contingency budget is 15% of the total budget for Task 1 to 6. The consultant shall obtain approval by the City of Milpitas to access the contingency budget.

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14 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials Agreement.

TASK DESCRIPTION COST
1 Habitat Restoration Construction and As-Built Support $22,672 2 Year 1 Monitoring (2027) $20,178
3 Year 2 Monitoring (2028) $15,917
4 Year 3 Monitoring (2029) $17,105
5 Year 4 Monitoring (2030) $9,973
6 Year 5 Monitoring (2031) $11,110
Contingency (15%) $14,543
TOTAL $111,498

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15 EXHIBIT C
Billing Rates Schedule

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16 EXHIBIT D

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

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

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

Contractor or Consultant shall furnish City with copies of original endorsements affecting coverage required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.

Commercial General Liability (CGL):
___ Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. _X_ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:
_X_ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage. ___ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single limit for bodily injury and property damage.

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17 ___ Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):
_X_ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate. ___ (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.
___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than ______ per occurrence or claim, ______ aggregate
Workers’ Compensation Insurance:
_X_ Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor or Consultant provides written verification it has no employees) The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):
___ Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment.

The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:
___ Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

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

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

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

Surety Bonds:

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

Other Insurance Provisions:

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

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

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

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

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19 _X_ Waiver of Subrogation:

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

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

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

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

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

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

Acceptability of Insurers:

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

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

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

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

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

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

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

Subcontractors:

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

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

Verification of Coverage:

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

Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

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21 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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1 CITY OF MILPITAS

PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of ________________, (“Effective Date”) by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and Baseline Environmental Consulting, a California Stock Corporation with its principal place of business at 388 17th Street, Suite 230 Oakland, CA 94612 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:

Environmental Oversight for Construction of S. Milpitas Blvd Extension and Tango Park
(hereinafter referred to as “the Project”)
B. Consultant is duly licensed and has the necessary qualifications to provide such services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit A.

2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit B.
b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Hundred Ninety-Seven Thousand Six Hundred Seventeen Dollars and Zero Cents ($197,617.00). This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within thirty (30) days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

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4. Maintenance of Records.

5. Term
The term of this Agreement shall be from July 1, 2026, to December 31, 2030, unless earlier terminated as provided herein. The City reserves the right to review the Consultant’s performance at the end of each year and cancel all or part of the Agreement.

9. Assignment and Subconsultant

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14. Verification of Employment Eligibility.

15. Laws and Venue.

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18. Organization
Consultant shall assign Cem Atabek as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

CITY:

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

Baseline Environmental Consulting
388 17th Street, Suite 230
Oakland, CA 94612
Attn: Cem Atabek, Project Manager
and shall be effective upon receipt thereof.

21. Third Party Rights

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

22. Equal Opportunity Employment.

23. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.

24. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

25. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

26. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

27. Time of Essence
Time is of the essence for each and every provision of this Agreement.

28. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

29. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other

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30. Wage Theft Prevention
a. Consultant, and any subconsultant it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.
b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO

EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS

THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY

SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS CURRENTLY

SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR

ALTERNATIVE PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY

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9 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF MILPITAS

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

CITY OF MILPITAS
Approved By:

Willie A. Hopkins, Jr., City Manager

Date
Approved As To Form:

Christian Curtis, City Attorney
Approved:

Luz Cofresí-Howe
Finance Director/Risk Manager

Approved As To Content:

Christian Di Renzo, Public Works Director

BASELINE ENVIRONMENTAL
CONSULTING, INC.

Signature
Cem Atabek
Name
Project Manager_______
Title

Date

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10 EXHIBIT A
Scope of Services
I. Task 1A and 2A: Project Administration and Coordination Upon receipt of the Notice to Proceed from the City, The Consultant shall conduct a kick-off meeting with the City to review the scope of the project, project schedule, and deliverables. The Consultant shall attend weekly construction meetings with the City during the excavation/earthwork period of the project.

The Consultant shall coordinate meetings with the Regional Water Board (RWB) to notify them of the Consultant’s environmental oversight role, the project schedule, and anticipated deliverables. The Consultant shall coordinate with the RWB regarding any potential changes to the project’s design plans and any additional proposed modifications to the RMP as recommended by the Consultant. The Consultant shall coordinate with the RWB for approval of the proposed destruction of the monitoring wells.

The Consultant shall coordinate meetings with the Contractor to inform them of their environmental compliance responsibilities. The Consultant shall additionally provide the Contractor with recommendations regarding soil management practices during these meetings and throughout the excavation/earthwork periods of the project.

The Consultant shall be responsible for all coordination throughout the duration of the project, including, but not limited to the following:
• Their equipment rental company and laboratory subcontractors. • The City and the Contractor including, but not limited to, all scheduling, lab results, soil management/waste disposal recommendations, and import fill review. • The Regional Water Board including, but not limited to, notification of unexpected conditions and import fill review.
• All additional regulatory agencies
II. Task 1B and 2B: Technical Memorandum and Reporting
The Consultant shall prepare a Health and Safety Plan (HSP) for the project in accordance with the RMP, SGMP, and project scope. The HSP will be prepared in accordance with the California Occupational Safety and Health Administration Construction Safety Orders in Title 8 of the California Code of Regulations.

The Consultant shall obtain the destruction permits from the Santa Clara Valley Water District (SCVWD) for all groundwater monitoring wells at the site. Prior to obtaining the SCVWD permits, The Consultant shall assist the Contractor with engaging a state-licensed drilling contractor under this task (also included under Task C: Field Activities). The Consultant shall ensure the drilling Contractor is identified on the permit applications and provides insurance certificates to the SCVWD prior to the issuance of the permits. Following the destruction of the wells, The Consultant shall prepare the Department of Water Resources (DWR) well destruction reports and submit them to the SCVWD.

The Consultant shall prepare and submit all required documentation to the RWB. The Consultant shall submit via email to the RWB all notifications for the project schedule, proposed well destruction, and any other proposed changed to the RMP. The Consultant shall prepare and submit a technical

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11 memorandum to the RWB to document this information, as needed. If needed, The Consultant shall prepare and submit any and all required documentation to the Santa Clara County Department of Environmental Health (SCCDEH). If an underground storage tank (UST) is discovered during excavation/earthwork activities, a UST removal permit application will be required and prepared by the Consultant and submitted to SCCDEH, and a UST removal report will be prepared and submitted to SCCDEH following the removal of the UST. While the Consultant will prepare and submit all required documents as needed to SCCDEH, encountering a UST on site is considered an unexpected condition and is not included in the Consultant’s scope of work.

Following the completion of excavation/earthwork and soil disposal activities for each phase of the project, The Consultant shall prepare a Completion Report to document the monitoring well destruction, excavation/earthwork, air monitoring, remediation and confirmation sampling (if performed), importing of fill, groundwater dewatering and discharge (if performed), and soil disposal activities of that project phase. The completion report for phase 2 of the project will also document the capping of arsenic impacted soil at 1700 Sango Court and request case closure for 1831 Tarob Court, given the assumption that the site satisfies the criteria established in the RWB’s Assessment Tool for closure of Low-Threat Chlorinated Solvent Sites (July, 2009) and that no new areas of significant contamination are discovered during project excavation/earthwork which will warrant additional groundwater monitoring.

The completion reports will include a description of the field activities performed, chemical data summary tables, and comparison of analytical results to applicable screening levels and thresholds including the RWB’s Environmental Screening Levels (ESLs) and hazardous waste criteria as defined in California Code of Regulations Title 22. The Completion Reports will present conclusions and recommendations regarding the quality of soil and groundwater remaining at the site. Copies of the permits, laboratory reports, chain of custody forms, waste disposal documents, and figures showing excavation areas, stockpiles, and sampling locations will be attached to the main reports.

III. Task 1C and 2C: Field Activities
Well Destruction
The Consultant shall coordinate with the Contractor to assist them with locating the monitoring wells at the site and marking the wells for utility clearance through Under Ground Service Alert prior to destruction of the wells. The Consultant shall oversee and document the well destruction activities.

Following destruction of the monitoring wells at the site, The Consultant shall collect one composite soil sample from the drums of drill cuttings for waste disposal characterization. The Consultant shall coordinate with the Contractor to assist them with engaging a waste disposal service for the drums and profiling the drums for disposal.

Environmental Oversight
The Consultant’s proposed scope of work and cost assumes that they will perform full-time environmental oversight and air monitoring during project excavation/earthwork activities, per the requirements noted in the RMP. The Consultant, also referred to as the Environmental Professional in the RMP, will observe excavation and earthwork activities on a full-time to part-time basis, depending on each task duration at the site. The Consultant shall reduce environmental oversight and air monitoring requirements as needed based on the results of initial oversight and air monitoring activities and will coordinate with the RWB. The Consultant shall provide full-time environmental oversight and air monitoring during the first two weeks of excavation/earthwork activities and during excavation/earthwork activities in areas where more significant contamination has been identified at

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12 the site. If it is found that no exceedances of PM10 or PID reading action levels occur and no obvious contamination is encountered during the initial monitoring, then the Consultant may recommend that environmental oversight and air monitoring be reduced or suspended while working in areas where significant contamination has not been previously identified at the site. The Consultant shall recommend that full-time environmental oversight and air monitoring be re-initiated if excessive dust emissions or odors are noted by the City, Contractor, or public, or if obvious contamination is encountered.

The Consultant’s project manager will coordinate closely with the Consultant’s field monitoring staff to ensure that any soil management issues are being adequately addressed and to provide support if unexpected conditions are encountered. The Consultant shall document the construction activities and environmental monitoring activities/observations/readings, and soil/groundwater sampling activities.

The daily monitoring logs will include maps depicting the areas of excavation/earthwork, soil stockpiles, soil or groundwater contamination (if encountered), sample locations, and air monitoring locations including upwind and downwind locations for dust monitoring, and work area locations for volatile organic compounds (VOCs) monitoring.

The daily monitoring logs will also document any communications with the Contractor and the City regarding field observations, air monitoring results, and recommendations for soil management.

Copies of the daily monitoring logs will be attached to the completion reports.

Air Monitoring Equipment and Protocols
The weather conditions (wind speed and direction) will be monitored and logged using a Davis Vantage Pro2 portable weather station. The upwind and downwind air monitoring for respirable dust, expressed as concentrations of particulates smaller than 10 microns (PM10), will be performed using Thermo Scientific pDR-1500 Aerosol Monitors. The air monitoring for VOCs will be performed using a RAE Systems MiniRAE 3000 Photoionization Detector (PID). The dust meters and PID will be calibrated at the start of each day in accordance with manufacturer recommendations.

The portable weather station will be placed in a location that will not interfere with construction activities and where wind flow will not be altered by equipment/materials. The upwind and downwind dust monitoring stations will be located within a 45° arc from the predominant wind direction. If there is a change in the wind direction, the stations will be relocated such that they remain within a 45° arc of the predominant wind direction. The monitoring stations will be positioned at a height of 5 feet above ground surface to approximate the average height of the human breathing zone near the boundary of the Site.

During Phase 1 of the project, the Consultant proposed having one upwind and one downwind dust monitoring location based on the relatively small area of ground disturbance. During Phase 2 of the project, the Consultant proposed having one upwind and two downwind dust monitoring locations due to the larger area of ground disturbance. The real-time PM10 readings and 8-hour time weighted average (TWA) PM10 readings will be logged by dust meters. Air monitoring equipment calibration, observations such as dust generating activities or observations of visual dust, and real-time instrument readings will be recorded on daily spreadsheets to document the wind speed/direction, PM10 readings, and PID readings. The daily spreadsheets will ensure that corrective actions are recommended and implemented immediately if PM10 or PID readings exceed action levels or if excessive wind or visual dust is observed. The air monitoring observations and readings will be recorded on the spreadsheets every 15 minutes to half-hour depending on the nature of the construction activities being performed and field conditions such as more frequent recordings during more intensive earth work or if visual

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13 dust is observed. The logged PM10 and weather monitoring data will be downloaded as backup files and reviewed periodically.

The action level established in the RMP for PM10 is 150 micrograms per cubic meter (µg/m3) as an 8-hour TWA. The Consultant understands that this action level will apply to the difference between upwind and downwind PM 10 concentrations. The RMP does not include a short-term (i.e., real-time) action level for PM10 to provide guidance on when additional dust control should be recommended immediately, and therefore The Consultant shall conservatively use 150 µg/m3 above upwind PM10 as a short-term action level for PM10.

The action level established in the RMP for PID readings is 1 part per million (ppm) as an 8-hour TWA, which is based on the Permissible Exposure Limit (PEL) for benzene established by the California Occupational Safety and Health Administration (Cal-OSHA). The Consultant shall use a short-term action level for PID readings of 5 ppm over any 15-minute period, which is the short-term exposure limit (STEL) for benzene established by Cal-OSHA. If the specific VOC causing the PID readings is known based on the results of soil sampling, then other action levels could be utilized for PID readings, such as the 8-hour TWA of 25 ppm for TCE which is the Cal-OSHA PEL, and the STEL of 100 ppm for TCE established by Cal-OSHA.

If short-term air monitoring action levels are exceeded, The Consultant shall immediately notify the Contractor and recommend respiratory protection (for PID readings) and additional dust control (for PM10). If air monitoring action levels based on the 8-hour TWA are exceeded, The Consultant shall notify the City and Contractor and recommend respiratory protection (for PID readings) and additional dust control (for PM10) as soon as possible.

Excavation Monitoring and Soil Sampling
The Consultant shall inspect excavations and areas of newly exposed soil to evaluate them for potential contamination based on visual indicators such as staining of soil, odors, and PID readings. The Consultant shall aim to inspect areas when they are not being actively worked on so that they do not interfere with the Contractor’s operations. The Consultant shall inspect areas from a safe distance when they are being actively worked on and will ensure clear communication with the Contractor prior to approaching active work areas to more closely evaluate potential contamination, if warranted.

The Consultant shall not enter excavations that are deeper than 5 feet (or potentially shallower if unstable soils are present) unless proper shoring or sloping of the excavation has been performed as confirmed by a competent person and adequate access such as a ladder or ramp is provided. If sampling is required at an excavation that is not safe for entry, The Consultant shall direct the contractor to retrieve soil from a designated location using an excavator bucket, and The Consultant shall collect soil samples from the center of the retrieved soil to avoid potential cross 13 contamination from the excavator bucket. For excavations that are safe to enter, The Consultant shall collect soil samples directly from the excavation sidewalls and bottom.

Confirmation samplings for smaller remedial excavations will be performed in accordance with the sampling frequency identified in the RMP. The Consultant shall coordinate with the RWB to modify the confirmation sampling frequency noted in the RMP, if warranted.

In-situ soil samples will be collected in laboratory supplied containers, which will include preserved vials for analysis of VOCs and glass jars for analysis of other constituents. Soil stockpile samples will be collected in stainless steel sleeves sealed with Teflon tape and plastic caps in accordance with the RMP. Samples will be sealed, labeled with the project name, date and time of sample collection,

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14 sampler’s initials, and unique sample identification, placed in a cooler containing ice, and delivered to a State-certified analytical laboratory.

The Consultant shall initially collect one sample from each area to evaluate the potential contaminants that may be present, and they assume that remedial excavations measuring roughly 10 by 10 feet (or 100 square feet) will be performed to address VOC contamination in each of the two areas.

Confirmation samples will then be collected in accordance with the RMP for analysis of VOCs, including two excavation bottom samples and one sample from each sidewall. They assume that a groundwater sample will also be collected from each excavation (if groundwater is encountered) for analysis of VOCs using a disposable bailer or peristaltic pump.

IV. Task 1D and 2D: Laboratory Analysis/Testing
For drums of soil generated by well destruction activities, The Consultant shall analyze one composite soil sample for Title 22 metals by EPA Methods 6010B and 7471A; total petroleum hydrocarbons (TPH) as gasoline, diesel, and motor oil by EPA Method 8015B; and VOCs by EPA Method 8260B. the Consultant proposes that up to one analysis of soluble metals will be performed using the Waste Extraction Test (WET) Method or Toxicity Characteristic Leaching Procedure (TCLP) Method for waste classification purposes, as needed, based on total metals concentrations.

For the initial evaluation of soil in areas of unexpected contamination (if encountered), The Consultant shall analyze two soil samples for Title 22 metals by EPA Methods 6010B and 7471A; TPH as gasoline, diesel, and motor oil by EPA Method 8015B; VOCs by EPA Method 8260B; semi-volatile organic compounds (SVOCs) by EPA Method 8270C; polychlorinated biphenyls (PCBs) by EPA Method 8082; and organochlorine pesticides (OCPs) by EPA Method 8081.

For remedial excavations, The Consultant shall analyze 12 confirmation soil samples and 2 groundwater samples collected for VOCs by EPA Method 8260B.

For soil stockpiles, The Consultant shall analyze 15 samples for Title 22 metals by EPA Methods 6010B and 7471A; TPH as gasoline, diesel, and motor oil by EPA Method 8015B; VOCs by EPA Method 8260B; SVOCs by EPA Method 8270C; and PCBs by EPA Method 8082 in accordance with the RMP.

The Consultant shall compile and evaluate laboratory analytical results through comparison to applicable RWB ESLs and hazardous waste thresholds. The Consultant shall provide recommendations regarding appropriate soil and waste disposal methods in compliance with regulatory standards for soil stockpiles intended for off-site disposal and groundwater that require dewatering/discharge. The Consultant shall provide recommendations regarding suitability of soil stockpiles for re-use on-site. The Consultant shall provide recommendations for soil excavation, soil management, stockpile segregation, and additional sampling based on laboratory analytical results from remedial excavations.

V. Task 3: ADDITIONAL SERVICE ALLOWANCES
A $30,000 contingency has been included for any additional services that are not included in the scope specified in the agreement. The consultant shall obtain City’s approval prior to charging this line item.

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15 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials not to exceed Agreement.

Task Title/Description Cost
Task 1 – S. Milpitas Blvd Road Extension
1A Project Administration and Coordination $11,460
1B Technical Memorandum and Reporting $19,035
1C Field Activities $46,050
1D Laboratory Analysis/Testing $8,436
Task 2 – Tango Park
2A Project Administration and Coordination $11,460
2B Technical Memorandum and Reporting $14,610
2C Field Activities $45,875
2D Laboratory Analysis/Testing $10,691
Additional Services Allowance $30,000
Total Project Cost $197,617

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16 EXHIBIT C
Activity Schedule

1. HOURLY COMPENSATION RATES
LABOR
Principal Environmental Engineer $230 per hour
Senior Hydrogeologist $220 per hour
Senior Environmental Engineer $220 per hour
Project Environmental Engineer $175 per hour
Project Environmental Scientist $175 per hour
Project Geologist $175 per hour
Senior Staff Environmental Engineer $150 per hour
Senior Staff Environmental Scientist $150 per hour
Senior Staff Geologist $150 per hour
Staff Environmental Engineer $130 per hour
Staff Environmental Scientist $130 per hour
Staff Geologist $130 per hour
Project/Document Processing $135 per hour

DIRECT COSTS
Mileage IRS Rate
Subcontractors and Rental Equipment At Cost

MATERIALS AND EQUIPMENT
Aerial Drone $150 per day
Bailers $15 each
Bladder Membrane $15 each
Bladder Pump and Controller $125 per day
EnCore Container $16 each
Field Vehicle $65 per day
Groundwater Filters $20 each
Locks $20 each
Multi-Parameter Meter $75 per day
Peristaltic Pump $50 per day
Photoionization Detector (PID) $110 per day
Poly Tubing $0.75 per foot
Rotary Hammer $100 per day
Soil Sample Sleeves (stainless steel) $7.5 each
Soil Sampling Tools (hand auger, slide hammer, breaker bar) $60 per day Sound Level Meter (Class 1) $150 per day
Sound Level Meter (Class 1) with Overnight Kit $200 per day Traffic Control (signs, cones, barricades) $25 per day
Vapor Prove Temporary Sub-Slab (vapor pin) $65 per probe Vapor Probe Permanent Sub-Slab (vapor pin and flush cover) $125 per probe Vapor Probe Temporary Soil (3-5 feet deep, includes filter, tubing, sand, bentonite) $100 per probe Vapor Probe Sub-Slab Installation Kit (roto hammer, drill bits, vapor pin tool, shop vac) $200 per day Water Level Meter/Interface Probe $30 per day
Water Level Pressure Transducer $35 per day
Well Plugs/Caps $40 each

2. ADDITIONAL SERVICES
Additional Services shall include any service not specifically listed above and agreed by the City

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17 and Baseline. Compensation for additional services shall be by a mutually accepted fixed fee, or on an hourly basis, computed at the actual hourly rates listed above. The Consultant shall obtain City written approval prior to performing any work.

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18 EXHIBIT D

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19 ___ 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.

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

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20 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:

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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21 _X_ Waiver of Subrogation:

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.

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22 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.

Subcontractors:

Verification of Coverage:

Failure to Comply:

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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Amendment No. 1: Artik Art & Architecture
1 AMENDMENT NO. 1

TO THE DESIGN SERVICES AGREEMENT BETWEEN

THE CITY OF MILPITAS AND

BILL GOULD ARCHITECTURAL CORPORATION DBA ARTIK ART &

ARCHITECTURE
FOR
S. MILPITAS BLVD ROAD EXTENSION PROJECT, CIP NO. 2016
This Amendment No. 1 is entered on _______________, 2026, by and between the City of Milpitas, a municipal corporation (hereafter referred to as “City”), and Bill Gould Architectural Corporation DBA Artik Art & Architecture, a California Corporation (hereafter referred to as "Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Amendment No. 1.

RECITALS
WHEREAS, on July 17, 2023, the Parties entered into a Design Services Agreement for the S. Milpitas Blvd Road Extension Project, CIP No. 2016 (the “Agreement”) with a compensation amount not to exceed $336,495.00, and with a term period of July 17, 2023, to December 31, 2026; and WHEREAS, the parties now desire to amend the Agreement to increase the compensation by $72,400.00 to allow Consultant to provide additional professional services described in Exhibit A-1 and B-1, attached hereto, for a new total amount of $408,895.00;
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the Parties agree to amend the Agreement as follows:

1. Section 3.1.1, entitled “Scope of Services”, the second sentence is hereby amended to read as follows:
“The Services are more particularly described throughout this Agreement, including Exhibit “A” and “A-1” attached hereto and incorporated herein by reference.”

2. Section 3.1.2, entitled “Term”, is hereby amended to read as follows:

The term of this Agreement shall be from July 16, 2023, to December 31, 2028, unless earlier terminated as provided herein. The City reserves the right to review the Consultant’s performance at the end of each year and cancel all or part of the Agreement.

3. Section 3.5.2, entitled “Drawings and Specifications”, is hereby amended to read as follows:

Designer shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time

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2 the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” and “A-1”, attached hereto.

Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Designer. Designer shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit “A” and “A-1”, attached hereto. For the preparation of all such drawings and specifications, the Designer shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Designer and City.

4. Section 3.7.1, entitled “Designer Services”, is hereby amended to read as follows:

Designer shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” and “A-1”, attached hereto and incorporated herein by reference.

5. Section 3.8.1, entitled “Request for Services”, is hereby amended to read as follows:

At City’s request, Designer may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” and “A-1”, attached hereto, and/or not customarily furnished in accordance with generally accepted design practice.

6. Section 3.8.2, entitled “Definition”, the first sentence is hereby amended to read as follows:

As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary for the Designer to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” and “A-1”, attached hereto.

7. Section 3.9.7, entitled “City’s Representative”, is hereby amended to read as follows:

The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. The City Manager hereby designates CHRISTIAN DI RENZO, PUBLIC WORKS DIRECTOR, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Designer shall not accept

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Amendment No. 1: Artik Art & Architecture
3 direction or orders from any person other than the City’s Representative or his or her designee.

8. Section 3.10.1, entitled “Designer’s Compensation for Basic Services”, is hereby amended to read as follows:
“City shall pay to Designer, for the performance of all Services rendered under this Agreement, the total not to exceed amount of Four Hundred Eight Thousand Eight Hundred and Ninety-Five Dollars ($408,895.00) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “B-1” and incorporated herein by reference.”

9. Section 3.10.4, entitled “Payment to Designer”, is hereby amended to read as follows:

Designer’s compensation and reimbursable expenses shall be paid by City to Designer no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B-1” and the compensation rates indicated in Exhibit “B-1” attached hereto and incorporated herein by reference. In order to receive payment, Designer shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Designer shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B-1” attached hereto.

City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.

10. Exhibit A-1 and B-1, attached hereto and incorporated herein by this reference, are hereby added to the Agreement.

11. The Consultant agrees to maintain and pay for all insurance policies as stated in Section 3.3.3, entitled “Standards and Insurance” of the Agreement dated July 16, 2023. The Consultant shall provide the City with renewal certificates of the current policies upon the expiration of the current policies.

12. Except as amended by this Amendment No.1, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment No.1, whenever the term “Agreement”

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4 appears in the Agreement, it shall mean the Agreement as amended by this Amendment No.1.

13. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No.1.

14. If any provision of this Amendment No.1 shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Amendment No.1 unless elimination of such provision materially alters the rights and obligations set forth herein.
[SIGNATURES ON FOLLOWING PAGE]

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Amendment No. 1: Artik Art & Architecture
5 SIGNATURE PAGE TO AMENDMENT NO. 1

TO DESIGN SERVICES AGREEMENT WITH

ARTIK ART & ARCHITECTURE
FOR
S. MILPITAS BLVD ROAD EXTENSION

CITY OF MILPITAS
Approved By:

Willie A. Hopkins, Jr., City Manager

Date
Approved As To Form:

Christian Curtis
City Attorney
Approved:

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

Christian Di Renzo
Public Works Director

ARTIK ART & ARCHITECTURE

Signature
William E. Gould
Name
Principal
Title

Date

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Amendment No. 1: Artik Art & Architecture
EXHIBIT “A-1”
DESIGNER’S ADDITIONAL SCOPE OF SERVICES
Consultant to provide additional services during the bidding and construction phases to support the City in responding to bidder and contractor inquiries. These services shall be performed at the request of the City and may extend from the start of bidding through construction acceptance.

Bid Administration Phase
The Consultant shall provide bid phase support services during the bidding and contract award period, as requested by the City, including review and coordination to ensure completeness and accuracy of the Contract Documents. Services may include, but are not limited to:
 Reviewing bidder questions
 Coordinating responses with the City
 Preparing written responses for City review and issuance  Preparing addenda, clarifications, and conformed documents incorporating all issued addenda, as required
 Assisting with identification of potential bidders and solicitation efforts, if requested  Assisting in the evaluation of bids
Construction Administration Phase

The Consultant shall be available to assist the City during the construction phase, from Notice to Proceed through construction acceptance, by providing architectural support services. Services may include, but are not limited to:
 Attending Owner–Architect–Contractor (OAC) meetings, as required  Reviewing contractor submittals and shop drawings
 Responding to requests for clarification related to the plans and specifications  Reviewing Requests for Information (RFIs) and providing written responses  Assisting the City in overseeing the development of the Aesthetic Enhancement prototype
 Conducting site visits to observe installation of Aesthetic Enhancements, as requested

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Amendment No. 1: Artik Art & Architecture
EXHIBIT “B-1”
DESIGNER’S COMPENSATION & HOURLY COMPENSATION RATES
Artik will perform the additional services described above on a time and materials basis, with total compensation not to exceed $72,400, unless otherwise authorized in writing by the City.

Description Original Contract
Amount
Budget
Amendment
No. 1
Revised Contract
Amount
Professional Services
Schematic/Design Development $ 28,000.00 $ 0 $ 28,000.00 Prototype Development $ 23,000.00 $ 0 $ 23,000.00
Construction Documents $ 25,000.00 $ 0 $ 25,000.00
Agency Review/Approval $ 6,300.00 $ 0 $ 6,300.00
Presentation Renderings $ 20,000 $ 0 $ 20,000.00
Prototypes
Prototype – 8 Foot Section $ 203,605.00 $ 0 $ 203,605.00 Contingency $30,590 $ 0 $30,590
Construction Phase
Bid Supports $ 0 $ 5,000 $ 5,000
Construction Support $ 0 $ 42,400 $ 42,400
Additional Service as needed during
construction $ 0 $ 25,000 $25,000
TOTAL $ 336,495.00 $ 72,400.00 $ 408,895.00

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Amendment No. 1: Artik Art & Architecture

HOURLY COMPENSATION RATES
Principal $250 per hour
Associate $200 per hour
Senior Project Manager $180 per hour
Project Manager $170 per hour
Senior Tech Lead $170 per hour
Job Captain $160 per hour
Designer III $140 per hour
Designer II $130 per hour
Designer I $110 per hour
Word Processor/Administrative $110 per hour

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve the Improvement Agreement with Shapell Norcal Rental Properties, LLC for a Commercial Building at 145 North Milpitas Boulevard (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: 6/16/2026
Recommendation: Approve and authorize the City Manager, or designee, to execute the Improvement Agreement between the City of Milpitas and Shapell Norcal Rental Properties, LLC with a value of $318,000 for a new commercial building at 145 North Milpitas Boulevard.

BACKGROUND:

On June 26, 2024, the Milpitas Planning Commission approved Site Development Permit No. SD22-0011, Conditional Use Permit No. UP22-0005, Site Development Permit Amendment No. SA23-0005, and Minor Site Development Permit No. MS24-0145 to construct a new 6,245-square foot commercial building and associated site and public improvements within the existing Beresford Square North Shopping Center at 145 North Milpitas Boulevard (“Project”) by Shapell Norcal Rental Properties, LLC (“Developer”).

ANALYSIS:

In accordance with City Municipal Code XI-1-17 – Improvement Agreement, Bonds, the Developer is required to enter into an Improvement Agreement with the City for the construction of off-site public improvements (“Improvements”) associated with the Project, which will be completed concurrently with the on-site work. The Improvements will be accepted by the City following the completion of construction which consists of asphalt pavement improvements including half-street width grind-and-overlay of Beresford Court; concrete improvements including replacement of sidewalk and ADA curb ramp along N. Milpitas Blvd. and installation of a new curb, gutter, and sidewalk along Beresford Court; restriping of the crosswalk at the intersection of N.

Milpitas Blvd. and Beresford Court; new utility improvements such as installation of a new fire hydrant, and new sewer, domestic, and fire water services; and other miscellaneous items of work as identified on the improvement plans. The Improvements will be completed within one (1) year from the date of the Improvement Agreement, and the work is guaranteed by bonds or similar securities to be posted by the Developer in the amount of $318,000.

The City Engineer has reviewed the Public Improvement Plans (No. 2-1476) and is recommending that the City Council approve the Improvement Agreement to allow for the construction of improvements associated with the Project after approval.

PROJECT SCHEDULE/KEY MILESTONES:

Following this action, the City Engineer will release the performance bond after the one-year warranty period provided all required warranty work is completed.

POLICY ALTERNATIVE(S):

Alternative: Do not approve the Improvement Agreement.

Pros: None
Cons: The denial of approval of the Improvement Agreement will cause construction of the off-site public improvements to be delayed and will prevent the Developer from occupying the new commercial building.

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Reason for Not Recommending: The Improvements are designed to support the public and the Project. Staff recommends approval of the Improvement Agreement to allow the Project to move forward.

FISCAL IMPACT:

There is no cost to the City associated with approving the Improvement Agreement. The Developer will construct all improvements at its sole cost and expense, secured by performance and labor and material bonds of $318,000. The Developer funds all City costs for plan review, permitting, and construction inspection through a developer deposit account. Following completion and City Council acceptance of the improvements, the City will have perpetual ownership and maintenance responsibility, with the Developer providing a one-year warranty following acceptance. The Public Works Department provides funding for future maintenance of newly accepted City infrastructure through its budget, subject to the annual appropriation of funds.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The City prepared an environmental assessment in accordance with the requirements of the California Environmental Quality Act (CEQA), as amended, and state and local guidelines implementing CEQA. The proposed Project is exempt from further environmental review under the California Environmental Quality Act (CEQA). The Project meets the definition of infill development under CEQA Guidelines Section 15332 (In-Fill Development Projects), in that the Project will occur within an existing urbanized area within the City, has no value as habitat for endangered, rare or threatened species and would not result in significant effects relating to traffic, noise, air quality, or water quality. In addition, the Project is consistent with the General Plan land use designation and Zoning Ordinance requirements as provided under CEQA Guidelines Section 15183 (Projects consistent with a Community Plan or Zoning).

The present action is an organizational, administrative, or fiscal activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.

Attachment(s):
(a) Improvement Agreement
(b) Planning Commission Resolution No. 24-022

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Resolution No. 24-022 Page 1
RESOLUTION NO. 24-022

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MILPITAS APPROVING SITE DEVELOPMENT PERMIT NO. SD22-0011, CONDITIONAL USE PERMIT NO. UP22-0005, SITE DEVELOPMENT PERMIT AMENDMENT SA23-0005, AND MINOR SITE DEVELOPMENT PERMIT NO. MS24-0145 TO DEVELOP A NEW, 6,245-SQUARE FOOT COMMERCIAL PAD BUILDING WITHIN THE EXISTING

BERESFORD SQUARE NORTH SHOPPING CENTER WITH UP TO THREE RETAIL

TENANTS AND A DRIVE-THROUGH FOR ONE TENANT, A REPLACEMENT

MONUMENT SIGN AT THE INTERSECTION OF NORTH MILPITAS BOULEVARD AND EAST CALAVERAS BOULEVARD WITH A MAXIMUM HEIGHT OF 16-FEET

ABOVE GRADE LEVEL, AN AMENDED BERESFORD SQUARE MASTER SIGN

PROGRMA, SHARED PARKING, OUTDOOR DINING, AND ASSOCIATED SITE IMPROVEMENTS ON AN EXISTING 5.67-ACRE PARCEL LOCATED AT 125

NORTH MILPITAS BOULEVARD
(APN 028-22-016)
WHEREAS, on March 31, 2023, an application was submitted by Brett Smith with Shapell Properties (“Applicant”) for Site Development Permit No. SD22-0011, Conditional Use Permit No. UP22-0005, Site Development Permit Amendment SA23-0005, and Minor Site Development Permit No. MS24-0145 to develop a new, 6,245-square foot commercial pad building within the existing Beresford Square North Shopping Center with up to three retail tenants and a drivethrough for one tenant, a replacement monument sign at the intersection of N. Milpitas Boulevard and E. Calaveras Boulevard with a maximum height of 16-feet above grade level, an amended Beresford Square Master Sign Program, shared parking, outdoor dining, and associated site improvements (“Project”). The Project is located on an existing 5.67-acre site at 125 N. Milpitas Boulevard (APN 028-22-016); and
WHEREAS, the property has a General Plan land use designation of Town Center (“TWC”) and is located within the Town Center (“TC”) Zoning District; and WHEREAS, a Site Development Permit is required for the development of a new pad building with drive-through service and associated site improvements, and a new freestanding sign greater than six-feet in height; and
WHEREAS, a Conditional Use Permit is required to allow drive-through operations and shared parking in conjunction with a new building within the Beresford Square North Shopping Center; and
WHEREAS, a Site Development Permit Amendment is required to allow an update to the master sign program for the Beresford Square Shopping Center; and WHEREAS, a Minor Site Development Permit is required to allow for outdoor dining as part of the proposed Project; and
WHEREAS, the Planning Department completed an environmental assessment for the Project in accordance with the California Environmental Quality Act (“CEQA”) and has determined that the proposed Project is exempt from further CEQA review pursuant to CEQA

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Resolution No. 24-022 Page 2
Guidelines Section 15332 (In-Fill Development Projects), and on a separate and independent basis, CEQA Guidelines Section 15183 (Projects Consistent with a Community Plan or Zoning); and WHEREAS, on June 26, 2024, the Planning Commission held a duly-noticed public hearing on the subject application, at which all those in attendance were given the opportunity to speak on the Project; and
WHEREAS, the Planning Commission has considered all written and oral testimony presented at the public hearing in making its decision; and WHEREAS, the proposed Project was found to be consistent with the goals, policies and regulations of the Milpitas General Plan and Zoning Ordinance, as analyzed and documented in the staff report for this Project; and
NOW THEREFORE, the Planning Commission of the City of Milpitas hereby finds, determines and resolves as follows:

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

SECTION 2: California Environmental Quality Act
The project is exempt from environmental review under the California Environmental Quality Act (CEQA). The Project meets the definition of infill development under CEQA Guidelines Section 15332 (In-Fill Development Projects), in that the Project will occur within an existing urbanized area within the City, has no value as habitat for endangered, rare or threatened species and would not result in significant effects relating to traffic, noise, air quality, or water quality. In addition, the Project is consistent with the General Plan land use designation and Zoning Ordinance requirements as provided under CEQA Guidelines Section 15183 (Projects consistent with a Community Plan or Zoning).

SECTION 3. Development Fees
The purpose of the Public Art Fee, as adopted on May 19, 2015, by Ordinance No. 38.821, is to promote the aesthetics and arts in the City of Milpitas by requiring the inclusion of a public artwork component in new private development projects in Milpitas. Developers may either include publicly accessible works of art of placement in the development itself or contribute a Public Art Program In-Lieu Contribution as a condition of project approval. This obligation therefore should foremost provide a direct public infrastructure improvement in the Project itself and only require contribution at the applicant’s decision not to install improvements within the Project. The Planning Commission finds that an essential nexus exists between the basic public infrastructure facilities financed by the fee and the Project, which those facilities will support.

In adopting the Public Art Fee, the City relied upon studies to ensure that each project would pay only its fair share of the basic public infrastructure facilities supported by this fee. The City

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Resolution No. 24-022 Page 3
found and determined through this study that the public interest, convenience, health, welfare and safety require that private residential building developments of 20 or more new dwelling units shall devote an amount not less than one-half of one percent of Building Development Costs for acquisition and installation of Publicly Accessible Art on the development site. This obligation therefore proportionally requires the developer to contribute proportionately in the first instance to the aesthetics and arts for the Project itself. The Planning Commission finds that the Public Art Fee is roughly proportional to the Project’s impact on the City’s land use interest.

The purpose of the Calaveras Boulevard Widening Traffic Impact Fee, as adopted on June 16, 2009, by Resolution No. 7894, is to implement the goals and objectives of the Milpitas General Plan and mitigate the traffic impacts caused by new development. The Project will be supported by the roadway widening and other traffic improvements finances by this Traffic Impact Fee. The Planning Commission finds that an essential nexus exists between the basic public infrastructure facilities financed by the Traffic Impact Fee and the Project, which those facilities will support.

In adopting this Traffic Impact Fee, the City relied upon studies to ensure that each project would pay only its fair share of the basic public infrastructure facilities supported by this fee. The City found and determined through study fees applicable by use to residential, retail, and office use, increased annually through the City’s budget process based on the Engineering News Record Construction Cost Index for the San Francisco Bay Area, as measured from the immediately preceding December through December of the prior year. The Project has the same use as contemplated in that study without project specific distinguishing features. As such, the Traffic Impact Fee will be roughly proportional to the basic public infrastructure facilities that the Project will require. The Council finds that Traffic Impact Fee is roughly proportional to the Project’s impact on the City’s land use interest.

SECTION 4. Site Development Permit (Section XI-10-57.03(F)(1)) The Planning Commission makesthe following findings based on the evidence in the public record in approving Site Development Permit No. SD22-0011 for the new pad building:

1. The layout of the site and design of the proposed buildings, structures and landscaping are compatible and aesthetically harmonious with adjacent and surrounding development.

The Applicant considered the existing layout of the Project site by consulting with Stratford School and tenants of Building B and looked at the locations of these two existing buildings and driveway access points to prepare the proposed Project’s site plan and design to minimize the disruptions of these existing business during and post construction of the new pad building and drive-through. The Project will be sited along the east and southeast portion of the lot away from the other two buildings and will close a driveway entrance closest to North Milpitas Boulevard on Beresford Court. Additionally, the transportation analysis and parking analysis found no substantial safety issues, and that the drive-through can handle the queuing capacity of up to 16 vehicles and will not impede the existing pick-up and drop-off operations of Stratford School.

The proposed Project’s contemporary architecture complements the design of the neighboring community, and high-quality, earth toned exterior materials will be used.

Additionally, new landscaping including shrubs, grass, and trees will be incorporated in the

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Resolution No. 24-022 Page 4
scope of work area.

2. The project is consistent with the Milpitas Zoning Ordinance.

The proposed Project is consistent with the Milpitas Zoning Ordinance, as demonstrated and outlined in Table 1 and 2 below.

Table 1: Town Center Zoning Conformance
Standards Required Proposed Complies
Front Setback (min.) 20 feet 38 feet 6 inches Yes
Side Setback (min.) 15 feet when abutting R
district 260 feet Yes
Street Side Setback
(min.) 20 feet 35 feet Yes
Rear Setback (min.) 15 feet when abutting R
district 433 feet Yes
Building Height 35 feet or 3 stories 26-feet, one-story Yes Floor Area Ratio, NonResidential 0.85 0.23 Yes
Landscaping All required setback areas and
the ends of each parking aisle
New landscaped
areas including
20-ft front
setback and at the
end of each
parking aisle
Yes
Table 2: Summary of Three Parking Study Demand Methods for Proposed Project Parking Study Method Day Peak
Time
Max.

Spaces
Required
Parking
Spaces
Provided
Deficit/
Surplus
1 – City Code Requirements Weekday/
Weekend N/A 259 223 -36
2 – City Code Requirements,
Applying Time of Day Factors from
Urban Land Institute (Shared
Parking Analysis)
Weekday 6:00 PM 207 223 +16
Weekend 7:00 PM 145 223 +78
3 – Parking Counts, Stratford School
at Full Occupancy, Applying Time of
Weekday 12:00 PM 177 223 +46
Weekend 6:00 PM 138 223 +85

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Resolution No. 24-022 Page 5
Day Factors from Urban Land
Institute (Shared Parking Analysis)
Source: Hexagon Transportation Consultants, Inc., Parking Study for the Commercial Development at 125 N. Milpitas Boulevard. Dated June 7, 2024
The proposed Project will also be compliant with parking requirements if the Conditional Use Permit request for shared parking is approved by the Planning Commission pursuant to MMC XI-10-53.11. Hexagon Transportation Consultants, Inc., provided a parking study, dated June 7, 2024, that included two shared parking methodologies that demonstrated that the amount of parking provided after construction of the proposed Project (223 stalls) will be sufficient for all uses. Further, the Project site will have a surplus of available parking stalls even at peak demand hours at the shopping center.

3. The project is consistent with the Milpitas General Plan.

The proposed Project is consistent with the Milpitas General Plan, as demonstrated and outlined in Table 3, and particularly Policy LU 6-5, which encourages reinvestment in strip commercial and shopping centers and to maintain, revitalize, and redevelop aging and underperforming centers. The proposed Project will be sited within an existing aging shopping center over 40 years old on a portion of an underutilized surface parking lot. The Project is also considered an infill development project on previously developed land and will be served by existing utilities. The reinvestment into the Project site will help promote additional economic activity into the area.

Table 3: General Plan Consistency
Policy Conformance
LU 6-2: As commercial centers are proposed
for redevelopment, create a vibrant public
realm though placemaking techniques like
public gathering places, features and focal
elements including outdoor cafes and other
outdoor uses and amenities.

Consistent. The Project includes two new
outdoor dining areas totaling 360-square feet,
and is anticipated to introduce a coffee shop
(Starbucks) with a drive-through and includes
bicycle parking and other outdoor dining
amenities. As such, the proposed Project will
help create and improve a vibrant public realm
with modern, high-quality amenities.

LU 6-4: Maintain viable neighborhoodserving commercial uses throughout the City in order to serve surrounding neighborhoods
and minimize vehicle miles traveled.

Encourage a diverse mix of commercial uses
including retail, service, office, entertainment,
and assembly uses.

Consistent. The Project will add new viable
neighborhood-serving commercial uses within
an existing shopping center intended to serve
the adjacent residential developments and will
improve the diversity of commercial uses
onsite by adding up to three new tenants.

LU 6-5: Promote reinvestment in strip
commercial and shopping centers and
maintain, revitalize, and redevelop aging and
underperforming centers.

Consistent. The proposed Project promotes
reinvestment by adding an infill development
project with up to three new different
commercial tenants and a modern drivePage 928 of 1482
Resolution No. 24-022 Page 6
through with site and landscaping
improvements into an aging shopping center.

SECTION 5: Site Development Permit and Site Development Permit Amendment for Signage (Section XI-10-57.04(F)(2))
The Planning Commission makesthe following findings based on the evidence in the public record in support of Site Development Permit No. SD22-0011 for a freestanding sign over 6-feet tall and Site Development Permit Amendment No. SA23-0005 to allow an update to a master sign program for a shopping center:
a. All elements of the sign, including design, lighting, scale, length and materials, are consistent with the intent of the General Plan, the Sign Ordinance and any applicable Specific Plan.

The new monument sign features a more modern design with internally illuminated channel letters and, earth-toned colors, and will complement the shopping center Additionally, the height and updated location of the proposed new monument sign is appropriate as the proposed location is situated away from a future Caltrans East Calaveras Boulevard Widening project. Furthermore, the new monument sign will be 29-feet shorter in height than its maximum allowable height.

The updated master sign program will be compliant with the General Plan and Sign Ordinance and will provide a consolidated overall sign program for the shopping center to maintain a consistent and cohesive look between sign proposals for the existing buildings, new pad building, and monument sign so that they will have similar design, lighting, scale, length, and material requirements. Additionally, as shown in Tables 5 and 6, the amended plan’s size and development standards for wall signs would allow for signage at Beresford Square to be more than 60 percent below the total maximum aggregate sign area allowed by the Sign Ordinance.
b. The design, scale and materials of the sign harmonize with the architectural design and details of the building or site it serves.

The design, scale, and materials of the new monument sign will also meet the architectural design and details of the shopping center it serves by using similar colors and materials in silver/gray, beige, and white colors as the rest of the shopping center and new pad building.

Furthermore, the scale is similar to the shopping center’s one-story building and will also be less than half the 45-foot allowable maximum height for a freestanding sign at the Beresford Square Shopping Center in the TC Town Center at 16-feet above grade level.

The updated master sign program will ensure that all new signage at the shopping center will be harmonized with the architectural design and details of the building or site it serves by providing specific design guidelines for various types of signs depending on the building or location so all signage will have similar design, scale, and materials throughout the shopping center. All wall signage in the amended plan will be within the maximum allowable limits outlined in the Sign Ordinance.

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Resolution No. 24-022 Page 7
c. The design and scale of the sign is appropriate to the distance from which the sign is normally viewed;
The design and scale of the monument sign is appropriate to the distance from which the sign is normally viewed by being proposed at a maximum height of 16-feet instead of its allowable maximum of 45-feet, and will include new letters with a maximum size of 24-inches for up to seven main tenants in the shopping center. The proposed size and scale of the sign and each sign copy will be legible from appropriate distances more than the existing monument sign.

The amended master sign program includes specific standards and diagrams for various types of signs proposed in Beresford Square to ensure the design and scale of the signs will be appropriately legible and visible, and includes different size and scale parameters for different types of tenants (i.e. anchor or tenant) to be proportional to the frontage and space of the business.
d. The design and materials of the sign provide a contrast between the background and letters; The new monument sign, as shown in Figures 9 and 10, and the amended master sign program (Attachment E) will feature a medium beige shade as a pillar and contrasted with white, illuminated channel letters providing a subtle contrast that is visually appealing, and the tenant spaces will have a light beige stucco shade and contrasted with aluminum cabinet letters in a darker gray/silver color with LED illumination. As such, the new monument sign design and materials provides a contrast between the background and letters and will have neutral, earth toned colors.

The master sign program includes specific design and material standards for various types of signage in the shopping center and includes examples which demonstrate there will be a subtle contrast between the background and letters while still being legible and maintaining neutral tones.
e. If a freestanding sign is included in the sign application, the design, scale or location of the building dictates the use of freestanding signs, rather than building-mounted signs.

The proposed new freestanding sign’s design, scale, and location was revised throughout the development review committee process to reduce the height and scale of the initial proposal and to appropriately propose a new location for the monument sign. The proposed new monument sign will be located closer to the North Milpitas Boulevard frontage and will be outside of the scope of work area for a future Caltrans project to expand East Calaveras Boulevard, and will be setback at least 30-feet away from the closest building at Beresford Square South (Citibank). Additionally, the height of the proposed freestanding sign at 16-feet tall is approximately 36 percent of its allowable maximum height and will be similar in scale to other one-story buildings in the shopping center. The proposed monument sign and associated standards are included in the master sign program update for the shopping center. f. For Sign Programs, in addition to the findings for signs, the following additional findings shall be made, based on evidence in the public record:

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Resolution No. 24-022 Page 8
a. The provisions of the Sign Program ensure consistency in design and style of all new signs.

City staff reviewed prior draft iterations of the sign program update to ensure consistency in design and style throughout all new signs and that the final proposed Master Sign Program for Beresford Square is consistent and clear in its requirements prior to scheduling the Project for a public hearing for consideration of adoption. b. The provisions of the Sign Program address compatibility of the design and style of any existing signs on the building or site, and
The amended master sign program addresses compatibility of the design and style of any existing signs on the buildings or site by clarifying the design and wall sign standards and providing an associated site plan map with corresponding building titles and legends to ensure the sign program is understandable for tenants, City staff, applicants, and the landlord when reviewing future sign proposals for the shopping center.
c. All new signs within the Sign Program are in compliance with the design guidelines of this Chapter.

All new signs within the amended master sign program are in compliance with the design guidelines of MMC XI-10-57.03 by proposing reasonable sign thresholds and in relation to regulations under MMC XI-10-24, Signs. All signage will not be excessively large in scale or bulk and the sign program will not allow for any lighting that will be disruptive such as blinking or flashing lights that could be a nuisance to the public.

SECTION 6: Conditional Use Permit (Section XI-10-57.04(F)(1)) The Planning Commission makes the following findings based on the evidence in the public record in support of Conditional Use Permit No. UP22-0005 for the drive-through use and shared parking:

1. The proposed use, at the proposed location will not be detrimental or injurious to property or improvements in the vicinity nor to the public health, safety, and general welfare.

The drive-through service and shared parking are conditional uses that, when properly designed and sited in an appropriate area, can operate in a manner that will not compromise the public health, safety and general welfare of the immediate surroundings. The Applicant has provided consultant-based transportation and parking studies (Attachments B and C) demonstrating that the Project’s design at the proposed location will not be detrimental or injurious to existing property or improvements in the vicinity and will not add traffic impacts.

The transportation analysis for the Project further found no detrimental impacts to the pickup and drop-off operations of Stratford School, and Stratford School has provided a letter of support for the proposed Project (Attachment G). Additionally, the Applicant will coordinate with Stratford School and tenants of Building B on the construction schedule to minimize impacts to existing business operations, and will improve pedestrian and disabled safety at the Project site by raising one of the crosswalk connections as part of the proposed site

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Resolution No. 24-022 Page 9
improvements that was suggested in the transportation analysis. The transportation analysis further confirmed that the proposed drive-through’s circulation and site planning is oriented and designed adequately to not be detrimental or injurious to property or improvements in the vicinity and will not cause vehicular queuing backing up onto Beresford Court. The proposed site improvement modifications to the surface parking lot will still maintain minimum drive aisle widths and parking stall dimensions as required per MMC XI-10-53.13 - Design Standards for off-street parking.

2. The proposed use must be consistent with the Milpitas General Plan The proposed Project is consistent with the Milpitas Zoning Ordinance, as demonstrated in Tables 1 and 2.

The proposed Project will also be compliant with parking requirements of the Conditional Use Permit request for shared parking if approved by the Planning Commission pursuant to MMC XI-10-53.11. Hexagon Transportation Consultants, Inc., provided a parking study, dated June 7, 2024, that included two shared parking methodologies that demonstrated that the amount of parking provided after construction of the proposed Project (223 stalls) will be sufficient for all uses and the Project site will have a surplus of available parking stalls even at peak demand hours at the shopping center. The drive-through is consistent with the City’s Zoning Ordinance with approval of a Conditional Use Permit and has a dual lane drivethrough design that will merge into one lane with a capacity of 16 vehicles and has been adequately screened from public right-of-way views with an attached trellis and vertical greenscreen as viewed from North Milpitas Boulevard.

3. The proposed use must be consistent with the Milpitas Zoning Ordinance.

The proposed Project is consistent with the Milpitas General Plan, as demonstrated and outlined in Table 3, and particularly Policy LU 6-2, which discusses that as commercial centers are proposed for redevelopment, development projects should create a vibrant public realm through placemaking techniques like public gathering places, features and focal elements including outdoor cafes and other outdoor uses and amenities. The new drivethrough use will help introduce a new service (proposed Starbucks coffee shop) for residents and visitors. The approval of the shared parking arrangement and drive-through by the Planning Commission with this Conditional Use Permit request will also further meet the policies and goals of the General Plan by allowing additional uses to a neighborhood serving center by adding new retail and restaurant options for the community, and promote reinvestments and economic activity into an aging shopping center. The proposed Project will provide flexibility of options for Milpitas residents and visitors to enjoy with three new commercial tenants with indoor and outdoor amenities, and the use of the drive-through will provides another amenity in the shopping center for patrons who prefer using drive-throughs.

SECTION 7: Minor Site Development Permit (Section XI-10-57.03(F)(1)) The Planning Commission makesthe following findings based on the evidence in the public record in support of Minor Site Development Permit No. UP24-0145 for outdoor dining:

1. The proposed use, at the proposed location will not be detrimental or injurious to property

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Resolution No. 24-022 Page 10
or improvements in the vicinity nor to the public health, safety, and general welfare.

The outdoor dining area and design was proposed concurrently as part of the proposed Project for the new pad building. The proposed materials used for the outdoor dining area will be compatible with the new pad building. Landscaping has been incorporated thoughtfully throughout the proposed design of the Project and the outdoor dining areas will be protected and screened by raised landscaped planter beds with three-foot tall decorative metal fence providing an additional barrier from the drive through lane(s). The design of the outdoor dining areas was also harmoniously developed in consideration of the existing layout of the Project site with Building B and Stratford School to minimize disruptions with its adjacent neighboring tenants. Additionally, the proposed outdoor dining areas comply with the design standards and other development standards under Section MMC XI-10-13.19, Outdoor Dining, and is further evaluated below.

2. The proposed use must be consistent with the Milpitas General Plan The proposed Project is consistent with the Milpitas Zoning Ordinance, as demonstrated in Tables 1 and 2. The proposed outdoor dining areas comply with the design standards under Section MMC XI-10-13.19, Outdoor Dining by incorporating a durable barrier and providing separation from the drive-through lane(s) and parking areas. The Project further complies with the outdoor dining subsection by incorporating permanent overhead shade structures and adding high-quality and visually appealing metal tables and chairs that will complement the metal canopy awning features for the new pad building.

3. The proposed use must be consistent with the Milpitas Zoning Ordinance.

The proposed Project is consistent with the Milpitas General Plan, as demonstrated and outlined in Table 3, and particularly Policy LU 6-2, which encourages that as commercial centers are proposed for redevelopment, development projects should create vibrant public realm through placemaking techniques like public gathering places, features and focal elements including outdoor cases and other outdoor uses and amenities. Two tenant suites will each have an outdoor dining area of approximately 160-square feet or 200-square feet in front of their suite. The creation of the new proposed outdoor dining areas with modern architecture and materials will enhance the public realm and provide opportunities for Milpitas residents and visitors to enjoy using the outdoor dining uses and amenities. Shortterm bicycle parking racks will be available in front of one of the suites, as well as a longterm bicycle rack on the south elevation of the building.

SECTION 8: Planning Commission Action
The Planning Commission of the City of Milpitas hereby adopts Resolution No. 24-022 approving Site Development Permit No. SD22-0011, Conditional Use Permit No. UP22-0005, Site Development Permit Amendment No, SA23-0005, and Minor Site Development Permit No.

MS24-0145, to develop a new, 6,245-square foot commercial pad building within the existing Beresford Square North Shopping Center with up to three retail tenants and a drive-through for

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Resolution No. 24-022 Page 11
one tenant, a replacement monument sign at the intersection of N. Milpitas Boulevard and E.

Calaveras Boulevard with a maximum height of 16-feet above grade level, an amended Beresford Square Master Sign Program, shared parking, outdoor dining, and associated site improvements on an existing 5.67-acre parcel located in the Town Center (TC) Zoning District at 125 North Milpitas Boulevard, subject to the Findings and Conditions of Approval, attached hereto as Exhibit 1.

PASSED AND ADOPTED at a regular meeting of the Planning Commission of the City of Milpitas on June 26, 2024.

Chair
TO WIT:

I HEREBY CERTIFY that the following resolution was duly adopted at a regular meeting of the Planning Commission of the City of Milpitas on June 26, 2024, and carried by the following roll call vote:

COMMISSIONER AYES NOES ABSENT ABSTAIN
Mercedes Albana
Dipak Awasthi
Michael Caulkins
Alexander Galang
Parveen Gupta
Chia Ling Kong
Sonia Medina-Ashby

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12 EXHIBIT 1

CONDITIONS OF APPROVAL
125 N. MILPITAS BLVD. (APN 028-22-016)
SITE DEVELOPMENT PERMIT NO. SD22-0011
CONDITIONAL USE PERMIT NO. UP22-0005
SITE DEVELOPMENT PERMIT AMENDMENT NO. SA23-0005
MINOR SITE DEVELOPMENT PERMIT NO. MS24-0145
The City of Milpitas Planning Commission approve Site Development Permit No. SD22-0011, Conditional Use Permit No. UP22-0005, Site Development Permit Amendment No. SA23-0005, and Minor Site Development Permit No. MS24-0145, in accordance with Sections XI-10-13.19, XI-10-53.11, XI-10-57.03, and XI-10-57.04, of the Milpitas Municipal Code, subject to and conditioned upon all applicable State and local laws and regulations and the Conditions of Approval outlined below. This Site Development Permit, Conditional Use Permit, Site Development Permit Amendment, and Minor Site Development Permit entitlement is to develop a new, 6,245-square foot commercial pad building within the existing Beresford Square North Shopping Center with up to three retail tenants with a drive-through for one tenant, a replacement monument sign at the intersection of N. Milpitas Boulevard and E. Calaveras Boulevard with a maximum height of 16-feet above grade level, an amended Beresford Square Master Sign Program, shared parking, outdoor dining, and associated site improvements on an existing 5.67- acre parcel located in the Town Center (TC) Zoning District at 125 North Milpitas Boulevard (APN: 028-22-016). These approvals are subject to all other necessary reviews, approvals, studies, and inspections necessary for such development including for the issuance building permits or occupancy.

APPROVED SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL:

General Conditions

1. General Compliance. The applicant, including all successors in interest (collectively “Permittee”) shall comply with each and every condition set forth in this Permit. No certificate of occupancy or temporary certificate of occupancy shall be issued for the development project described in Site Development Permit No. SD22-0011, Conditional Use Permit No. UP22-0005, Site Development Permit Amendment P-SA23-0005, and Minor Site Development Permit P-MS24-0145 (“Permit”), and the Permit shall have no force or effect and no building permit shall be issued unless and until all things required by the below-enumerated precedent conditions have been performed or caused to be performed. (P)

2. The Permittee shall develop the approved project in conformance with the approved plans (dated May 28, 2024), and sample color and materials approved by the Planning Commission on June 26, 2024, in accordance with these Conditions of Approval. (P)

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13 3. Modifications to project. Any deviation from the approved site plan, floor plans, or other approved submittal shall require that, prior to the issuance of building permits, the Permittee shall submit modified plans and any other applicable materials as required by the City for review and obtain the approval of the Planning Director or Designee. If the Planning Director or designee determines that the deviation is significant, the Permittee shall be required to apply for review and obtain approval of the Planning Commission, in accordance with the Zoning Ordinance. (P)

4. Effective Date. Unless there is a timely appeal filed in accordance with the Milpitas Zoning Code, the date of approval of this Permit is the date on which the decision-making body approved this Permit. (P)

5. Conditions of Approval. As part of the issuance of building permits, the Permittee shall include within the first four pages of the working drawings for a plan check, a list of all conditions of approval imposed by the final approval of the project. (P)

6. Written Response to Conditions. The Permittee shall provide a written response to the Conditions of Approval indicating how each condition has been addressed with the building permit application submittal. (ALL)

7. Permit Expiration. Pursuant to Section XI-10-64.06 of the Milpitas Municipal Code, this Permit shall be deemed to have expired and become null and void if the activity permitted by this Permit is not commenced within two (2) years from the date of approval, or for a project submitted with a tentative map, within the time limits of the approved tentative map. Pursuant to Section XI-10-64.06(B) of the Milpitas Municipal Code, an activity permitted by this Permit shall be deemed to have commenced when the project:
a. Completes a foundation associated with the project; or b. Dedicates any land or easement as required from the zoning action; or c. Complies with all legal requirements necessary to commence the use, or obtains an occupancy permit, whichever is sooner.

8. Time Extension. Pursuant to Section XI-10-64.07 of the Milpitas Municipal Code, unless otherwise provided by State law, Permittee shall have the right to request a one-time extension of the Permit if the request is made in writing to the Planning Division prior to the expiration date of the approval. (P)

9. Project Job Account. If at the time of application for building permit there is a project job account balance due to the City for recovery of review fees, the review of permits will not be initiated until the balance is paid in full. (E)

10. Compliance with Laws. The construction, use, and all related activity authorized under this Permit shall comply with all applicable local, state, and federal laws, rules, regulations, guidelines, requirements, and policies. (CA/P)

11. Acceptance of Permit. Should Permittee fail to file a timely appeal within twelve (12) calendar days of the date of approval of this Permit, inaction by Permittee shall be deemed to constitute each of the following:
a. Acceptance of this Permit by Permittee; and

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14 b. Agreement by the Permittee to be bound by, comply with, and to do all things required of or by Permittee pursuant to all of the terms, obligations, and conditions of this Permit. (P)

12. Indemnification. To the fullest extent permitted by law, Permittee shall indemnify, defend with counsel of the City’s choosing, and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents (the “Indemnified Parties”) from and against any and all third party claim, action, or proceeding against City and/orthe Indemnified Partiesto attack,review,set aside, void or annul theCity’s approval of SITE DEVELOPMENT PERMIT NO. SD22-0011, CONDITIONAL USE PERMIT NO. UP22-0005, SITE DEVELOPMENT PERMIT AMENDMENT P-SA23-0005, AND MINOR SITE DEVELOPMENT PERMIT P-MS24-0145; including any environmental determination made therefore. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, reasonable attorneys' fees, and other reasonable expenses incurred in connection with such claim, action, causes of action, suit or proceeding.

The Permittee shall pay to the City upon demand or, as applicable, on a monthly basis to counsel of City’s reasonable choosing, amounts owed pursuant to the indemnification requirements prescribed in this condition, provided each such demand or monthly payment request includes reasonably detailed back-up documentation, including invoices and/or receipts, as applicable, for all amounts to be paid. Notwithstanding the foregoing, City shall have the right to redact invoices and/or receipts as necessary to preserve attorney-client privilege. City shall promptly notify the Permittee of any claim, action, or proceeding and shall engage in reasonable efforts to cooperate in the defense. If City fails to so promptly notify the Permittee, or if City failsto engage in reasonable effortsto cooperate in the defense, then the Permittee’s indemnification obligations as set forth in this condition of approval shall thereafter terminate. The Permittee shall not be required to pay or perform any settlement unless the settlement is approved by the Permittee. The above indemnification is intended to be as broad as permitted by applicable law. To the extent the above indemnification is limited by Government Code Section 66474.9, any limitations shall only apply to SITE DEVELOPMENT PERMIT NO. SD22-0011, CONDITIONAL USE PERMIT NO. UP22-0005, SITE DEVELOPMENT PERMIT AMENDMENT P-SA23- 0005, AND MINOR SITE DEVELOPMENT PERMIT P-MS24-0145, and the balance of the Permit shall be unaffected by said Government Code section. (CA)

13. Revocation, Suspension, Modification. This Permit may be suspended, revoked, or modified in accordance with Section XI-10-63.06 of the Milpitas Municipal Code. (P)

14. Severability. If any term, provision, or condition of this Permit is held to be illegal or unenforceable by the Court, such term, provision, or condition shall be severed and shall be inoperative, and the remainder of this Permit shall remain operative, binding, and fully enforceable. (P)

15. Previous Approvals. Permittee shall abide by and continue to comply with all previous City approvals, permits, or requirements relating to the subject property, unless explicitly superseded or revised by this Permit. (P)

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15 16. Outdoor Dining Design Standards and Operational Standards: Permittee and/or tenants of the Project shall maintain compliance with all outdoor dining design and operational standards per MMC XI-10-13.19(F) and MMC XI-10-13.19(G)

17. Shared Parking: Project site shall prepare and maintain a shared parking plan in coordination with tenants of Building A, Building B, and Stratford School and submit any alterations to the Planning Department for review per MMC XI-10-53.11(H) containing the following:

1. Site plan and required parking calculations of parking spaces intended for shared parking and their proximity to land uses that they will serve.

2. A signage plan that directs drivers to the most convenient parking areas for each particular use or group of uses (if such distinctions can be made).

3. A pedestrian circulation plan that shows connections and walkways between parking and land uses. These paths should be as direct and short as possible.

ENGINEERING DIVISION CONDITIONS OF APPROVAL

PRIOR TO CONSTRUCTION PLAN SUBMITTALS
The following conditions shall be met prior to any detailed construction plan check submittals (Building or Engineering, except demolition and rough grade plans), unless otherwise approved by the Director of Engineering/City Engineer. City reserves the right to reject any plan check submittal if any of the following conditions are not met. (E)

18. Modifications: The Site Development Plan plans dated May 28, 2024 is subject to change during the plan check stage based upon City’s previous comments and conditions stated herein.

19. Solid Waste and Recycling Handling Plan: Permittee shall submit final Solid Waste and Recycling Handling Plan based upon City’s previous comments for City’s review and approval by the Solid Waste Program. The Plan shall show calculations of waste generation volumes and how materials will be transferred from the waste generation areas to the trash enclosure/external collection point; demonstrate how recycling, food waste, and yard trimmings shall have a separately maintained process from garbage handling; address other requirements such as waste generation and compactor sizing, chute shut-off and property management responsibility for bin management and litter control; outreach and education to tenants/occupants, and procure sufficient service frequency based upon waste generation calculation volumes. The City’s review will include compliance of the plans with local and state legislation, such as AB 827 and SB 1383.

20. Stormwater Control Plan: Permittee shall submit City approved final Stormwater Control Plan (SWCP) that complies with the latest Municipal Regional Stormwater NPDES Permit, including Low Impact Development (LID) Section C.3.c.i measures for harvesting and reuse, infiltration, or evapo-transpiration, for City’s review and approval by the Engineering Department.

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16 21. Submittal Requirements: Permittee to ensure that all plan check submittals are in accordance with City’s submittal check list for each permit type, including but not limited to, payment of permit fees and/or fee deposit at the time of the submittal.

22. Project Job Account/Fee Deposit: Permittee shall open a new PJ account as a deposit to cover the costs for Engineering Department’s services for review and inspection of the project. The amount shall be determined based on the approved City fee schedule at the time of application submittal.

PRIOR TO OFF-SITE PLAN APPROVAL/ENCROACHMENT PERMIT ISSUANCE The following conditions shall be addressed as part of the off-site improvement plan review and shall be met prior to encroachment permit issuance, unless otherwise approved by the Director of Engineering/City Engineer. (E)

23. Public Improvement Design Standards: All public improvements shall be designed and constructed in accordance with all applicable public improvement design standards, including but not limited to:
a. Milpitas Design Guidelines: https://www.milpitas.gov/333/Standard-DetailsSpecifications); b. Standard details and specifications: (https://www.milpitas.gov/333/Standard-DetailsSpecifications); c. Americans with Disabilities Act (ADA) requirements, where applicable.

24. Sanitary Sewer Calculations: Permittee shall submit a completed “Sewer Needs Questionnaire” form and sanitary sewer calculations to justify lateral size design, allocation of discharge for each of the lateral, and impact to the existing main. Permittee shall be responsible to implement any necessary improvements if there is any identified deficiency to the existing main as a result of the project.

25. Storm Drain Design: Permittee shall submit storm drain hydrology and hydraulic calculations based upon a 10-year storm event to justify the size of the storm drain lateral flowing full, without surcharging the main line pipe, and to be reviewed and approved by the Engineering Department.

26. Domestic Water and Fire Service Calculations: Permittee shall submit potable water and fire service calculations to confirm adequacy of lateral size, pressure and flow, to be reviewed and approved by the Engineering Department and Fire Department. Hydraulic modeling analysis by the City and paid by the Permittee may be required as needed. Permittee shall be responsible to implement any necessary improvements if there is any identified deficiency to the existing main as a result of the project.

27. Concurrent Off-site Plan Reviews: Permittee shall submit separate off-site improvement plans for City’s review and approval by the Engineering Department.

28. Improvement Agreement and Securities: Permittee shall execute an Improvement Agreement and provide improvement securities in accordance with MMC Title XI, Section 17, and submit

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17 all other supplemental documents as stipulated in the Improvement Agreement (such as certificate of insurance).

29. Specific Improvements: In addition to standard public improvements required under Milpitas Municipal Code (MMC) Title XI, Chapter 1, Section 7, Permittee shall install other specific improvements listed below including incidental improvements as required by the City as part of the encroachment permit.
a) Installation of separate water service tap and meter for each of the following services: nonresidential, irrigation, and fire. b) Installation of separate utility service lines (domestic water, fire service, sanitary sewer) for non-residential.
c) Installation of radio-transmitted water meters with a meter antenna, any repeaters or transmitters as needed with dedicated power supplies at no cost to the City at locations acceptable to the City to ensure accurate and timely reception of meter readings. Permittee shall execute a recorded instrument providing dedicated space, access rights and dedicated power supplies to the City for operation/maintenance/repair/replacement of subject radio antenna.
d) Installation of half-street width asphalt concrete-based repair and microsurface along the project street frontage on Beresford Ct to the City Engineer’s satisfaction. e) Installation of 5.5’ public sidewalk after the removal of driveway at intersection of Beresford Ct and North Milpitas Blvd within the 5.5’ sidewalk easement.

30. Abandonment of Existing City Utilities: Permittee shall cap, abandon or remove any unused existing public utilities based upon City’s Abandonment Notes and to the City’s satisfaction.

31. Relocation and Adjustment of Existing Public Utilities: Permittee shall relocate and/or adjust existing public utilities as needed that are in conflict with the proposed improvements.

32. Water Service Agreement: Permittee shall complete a water service agreement to obtain water service.

33. Encroachment Permit: Prior to any work in the public right-of-way and/or public easement, obtain an encroachment permit with insurance requirements for all public improvements including a traffic control plan per the latest California Manual on Uniform Traffic Control Devices (MUTCD) standards to be reviewed and approved by the Engineering Department.

34. Pothole Encroachment Permit: Due to multiple new utility service connections on arterial/collector streets, Permittee shall pothole and verify all potential utility crossing conflict as part of the public improvement plan during the design stage.

PRIOR TO BUILDING PERMIT ISSUANCE
The following conditions shall be addressed during the building plan check process and shall be met prior to any building permit issuance (except demolition permit and rough grade permit), unless otherwise approved by the Director of Engineering/City Engineer. (E)

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18 35. Stormwater Facility Operation & Maintenance Plan: Permittee shall incorporate design details into applicable construction plans in accordance with City approved Storm Water Control Plan (SWCP). Permittee shall also submit Stormwater Facility Operation & Maintenance Plan that describes operation and maintenance procedures needed to ensure that treatment Best Management Practices (BMPs) and other storm water control measures continue to work as intended and do not create a nuisance (including vector control).

36. Stormwater Management Facilities O&M Agreement: Permittee shall execute and record a Stormwater Management Facilities Operation and Maintenance (O&M) Agreement associated with the SWCP O&M Plan, including perpetual maintenance of treatment areas/units, as reviewed and accepted by the Engineering Department. The subject O&M Agreement shall be referenced in the CC&Rs, if applicable.

37. Water Supply and Force Majeure: The City reserves the right to suspend the issuance of building permits in case of an emergency declaration of water supply in the case of a major catastrophic event that restricts City’s assurance to provide water supply.

38. Water Efficient Landscapes: Permittee shall comply with Milpitas Municipal Code Title VIII, Chapter 5 Water Efficient Landscapes for landscape design, including but not limited to, providing separate water meters for domestic water service and irrigation service and providing applicable landscape documentation package.

39. Solid Waste and Recycling Facility Design: Permittee shall comply with all applicable City design guidelines/details, including but not limited to those associated with haul route, turning radius, vertical and horizontal clearance, trash enclosure, staging area, and storage area.

40. Recycling Report Prior to Demolition Permit Issuance: Permittee shall submit Part I of a Recycling Report on business letterhead to the Building Department, for forwarding to the Engineering Department for review and approval. The report shall describe the following resource recovery activities:
a) What materials will be salvaged.
b) How materials will be processed during demolition.
c) Intended locations or businesses for reuse or recycling. d) Quantity estimates in tons (both recyclable and for landfill disposal). Estimates for recycling and disposal tonnage amounts by material type shall be included as separate items in all reports to the Building Division before demolition begins.

Permittee shall make every effort to salvage materials for reuse and recycling, and shall comply with the City’s demolition and construction debris recycling ordinance.

41. Recycling Report Prior to Building Permit Issuance: Permittee shall submit Part II of the Recycling Report to the Building Department, for forwarding to the Engineering Department.

Part II of the Recycling Report shall be supported by copies of weight tags and/or receipts of “end dumps.” Actual reuse, recycling and disposal tonnage amounts (and estimates for “end dumps”) shall be submitted to the Building Department for approval by the Engineering Department prior to inspection by the Building Department.

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19 42. Grease Interceptor: Provide grease interceptors for buildings with food service. Contact San Jose/Santa Clara Water Pollution Control Plant at
http://www.sanjoseca.gov/index.aspx?NID=1641 for sizing and location requirements for grease interceptor(s). No grease interceptor(s) shall be located in any public right-of-way or public easement areas.

43. Flood Plain Management: This project is in the Flood Zone “AH” with 1’ to 3’ average flood depth, therefore, Permittee shall comply with all applicable flood protection criterion required by the Federal Emergency Management Agency (FEMA) and MMC Title XI, Chapter 15.

Permittee shall also submit a Flood Study for the Project demonstrating, to the satisfaction of the City Engineer, that the proposed development has no adverse impact to the surrounding flood plain within the Special Flood Hazard Area (SFHA) and to the flood carrying capacity of the area. The study should include cumulative effects of existing and proposed developments demonstrating the combined effects will not increase the water surface elevation of the Base Flood Elevation (BFE) more than one foot at any point. The flood study shall be consistent with the requirements in accordance with Title 44 of the Code of Federal Regulations by establishing a hydraulic model and HEC-RAS. The study shall clearly identify the lowest floor elevation and shall be completely elevated out of the SFHA.

44. Development Fees: Permittee shall pay the following development fees. The information listed in items “a” through “h” are based upon current fee rates; however, those fee rates are subject to change. The exact fee amount shall be determined at the time of building permit fee payment. a) Water connection fee at $1,164/unit for residential and $5.97/gpd for commercial, based upon increased water usage.
b) Sewer connection fee at $1,406/unit for residential and $8.52/gpd for commercial, based upon increased average wastewater flow.
c) Wastewater Treatment Plant fee per MMC VIII, Chapter 2, Section 7.04. d) Calaveras Boulevard Widening Traffic Impact fee per Resolution No. 7894. e) 3.8% of applicable fees in accordance with City Resolution No. 8969 as Permitting Automation Fee.
f) FEMA Flood Zone Designation Letter fee in the amount of $100.00 each.

DURING CONSTRUCTION
The following conditions shall be complied with at all times during the construction phase of the project, unless otherwise approved by the Director of Engineering/City Engineer. (E)

45. Dewatering: If dewatering is needed during construction, Permittee shall obtain a Short-Term Industrial Wastewater Permit from the San Jose/Santa Clara Water Pollution Control Plant for discharging the groundwater to a sanitary sewer system.

46. Prohibition of Potable Water Usage: Permittee shall use recycled water for construction purposes, including dust control and compaction. Permittee shall comply with MMC VIII-6-

5.00 and 6-6.00 where potable water usage is prohibited, unless otherwise approved by the City Council.

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20 47. Construction Staging and Employee Parking: Permittee shall place all construction related materials, equipment, and arrange construction workers parking on-site and not located in the public right-of-ways or public easements.

48. Water Shut-down Plan: Permittee shall provide a water shut-down plan at least seven days in advance of the shut-down in coordination with the Engineering Inspector, and notify affected property owners/tenants when cut-in tee(s) is/are required.

PRIOR TO FIRST OCCUPANCY
The following conditions shall be met prior to issuance of a certificate of occupancy of the approved project, unless otherwise approved by the Director of Engineering/City Engineer.

49. Completion of Public Improvements: Permittee shall complete all public improvements, including but not limited to N Milpitas Boulevard, frontage improvements along Beresford Ct, as shown on City approved plans.

50. LOMR-F: Permittee shall submit the FEMA approved LOMR-F for each unit/building associated with the requested occupancy, if project is located in the SFHA. In the event FEMA has not lifted the suspense on the LOMR-F process, lack of documentation will not preclude occupancy release.

51. Elevation and/or Flood Proofing Certificate: Permittee's civil engineer shall submit Elevation and/or Flood Proofing Certificate for the lowest finished floor elevation of each building for City record.

52. Landscape Certificate of Completion: Permittee shall submit a Certificate of Substantial Completion that complies with the Milpitas Municipal Code Water Efficient Landscapes ordinance.

53. Certificate of Cross-Connection: Permittee shall ensure that the cross-connection specialist complete the required recycled water construction inspection checklist, cross connection test results and any special inspection checklist as required by the South Bay Recycling Program http://www.sanjoseca.gov/index.aspx?NID=1595 and forward them to the City.

54. Record Drawings: Permittee shall submit record drawings in Full size hard copy, AutoCAD, Tiff, and PDF formats for City records. Record drawings shall include all public improvements. Additionally, if the project uses recycled water, the permittee shall also submit record drawings of on-site irrigation facilities.

55. Private Job (PJ) Balance: Permittee shall pay for any remaining balance from the Private Job deposit.

BUILDING DEPARTMENT CONDITIONS OF APPROVAL

56. Compliance with California Code of Regulations. The Project shall comply with the requirements of the Building Safety and Housing Department and the California Code of

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21 Regulations Title 24 and the Milpitas Municipal Code as adopted by the City. Building permits shall be submitted to and approved by the Building Safety and Housing Department prior to start of construction. All California Code of Regulations Title 24 and Milpitas Municipal Code requirements applicable at the time of building permit application must be met in advance of any building permit approvals or related construction. Changes to the site plan and/or building plan require review and approval by the Building Safety and Housing Department.

FIRE DEPARTMENT CONDITIONS OF APPROVAL

57. Please do not consider this review an approval for construction from the Fire Department. The plans submitted are not reviewed nor approved for conformance to the California Building Code (CBC), California Fire Code (CFC) and the Milpitas Municipal Code (MMC). These notes are a general list of the applicable code requirements (2022 Edition), but not limited to, and are provided to assist with the construction permit process.

58. To determine the acceptability of technologies, processes, products, facilities, materials, and uses attending the design, operation or use of a building or premises subject to inspection by the Fire Code Official, the Fire Code Official is authorized to require the owner or agent to provide, without charge to the jurisdiction, a technical opinion(s), plan review(s) and/or report(s). CFC Section 104.8.2.

59. Fire Department Access: Fire Department apparatus and staff access shall be provided to all buildings and site. Detailed review will be done during construction permit process. CFC Section 503
a. Fire apparatus access roads shall meet the Milpitas Fire Department turning radii guidelines and shall provide continuous apparatus travel. Turning radii for fire apparatus access roads shall be a minimum net clearance of 48 feet 6 inches for the outside radius and 28 feet 0 inches for the inside radius. The layout for the outside and the inside radius shall be from the same reference point (center). CFC Section 503 b. Fire apparatus access shall extend to within 150 feet of all portions of exterior walls of the building/structure per the California Fire Code Section 503.1. When there is a deadend condition, means for fire apparatus turn-around shall be provided. c. Adjacent Access. No source of access from lands adjoining a property to be developed shall be considered unless there is obtained the irrevocable and unobstructed right to use same. CFC Section 503.7, added by MMC V-300-2.56
d. Fire access roads shall be paved (concrete and/or asphalt cement, or other concrete type pavement approved by the Fire Dept.). Fire apparatus access roads/lanes and emergency vehicle roads shall be designed and maintained to support the imposed loads of fire apparatus and shall be surfaced so as to provide all-weather capabilities. Design criteria shall be based on the City of Milpitas fire apparatus Sutphen S95 Aerial Platform unit.

Please contact the Fire Prevention Division if specifications are needed. CFC Section

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22 503.2.3
e. Ground structures (including landscape) and building projections shall not encroach or impede the fire apparatus access requirements. CFC Section 503.4 f. Emergency Vehicle Access (EVA) roads, when required, shall meet the fire department site access requirements specified herein this document. CFC Section 503 g. No parking in fire access roads. The required access road shall be designated and clearly marked as a fire lane. The designated fire lane shall be identified as set forth in Section 22500.1 of the Vehicle Code. The designation shall be indicated (1) by a sign posted immediately adjacent to, and visible from, the designated place clearly stating in letters not less than one inch in height that the place is a fire lane, (2) by outlining or painting the place in red and, in contrasting color, marking the place with the words "FIRE LANE", which are clearly visible from a vehicle, or (3) by a red curb or red paint on the edge of the roadway upon which is clearly marked the words "FIRE LANE". CFC Section 503.3
Minimum marking shall be pole signage and red curb with “FIRE LANE – CVC 22500.1” stencil. Signage and red curbs shall be done throughout and as needed to clearly identify the no parking zones.
h. Fire Protection. When fire apparatus access roads or a water supply for fire protection is required to be installed, such protection shall be installed and made serviceable prior to and during the time of construction. Combustible construction shall not begin until water mains and hydrants are operational and fire apparatus access roads are installed (paved).

CFC Section 501.4
i. The Fire Department reserves the right to request site design changes as needed to meet the requirements of the CFC, and/or make the request for additional fire protection measures in conformance with the CFC Section 102.9.

60. Fire Protection Water Supply (hydrants, on-site and public) a. An approved water supply (hydrants on-site and public) capable of supplying the required fire flow for fire protection shall be provided upon which facilities, buildings, or portions of buildings are hereafter constructed or moved into or within the jurisdiction. Water supply shall meet the Fire Code and the City of Milpitas Engineering Division water supply guidelines and the CFC Section 507, Appendix B and Appendix C. Fire flow reduction as noted in the Appendix B of the Fire Code is not permitted, CFC Section B103.2.

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23 b. Water System Calculations Requirements. Private fire service mains and appurtenances shall be designed and installed in accordance with the City of Milpitas Engineering design guideline requirements and the NFPA 24. Design calculations and all the necessary design information for the water system to meet the domestic and fire flow requirements as per the City of Milpitas Engineer Division water design requirements shall be provided as part of the construction permit process. CFC Section 507 The minimum water flow at the worst case hydrant outlet within the private system shall be not less than 2,500 gpm.
c. Hydrant for automatic fire sprinkler and or standpipe systems. Buildings equipped with an automatic fire sprinkler system and or a standpipe system installed in accordance with Sections 903 and or 905 shall have a fire hydrant within 50 feet of the fire department connections. CFC Section 507.1.1, amended by MMC Section V-300-2.61 d. Private hydrants shall have the bottom 6 inches of the hydrant painted, with a weather resistive paint, white in color. CFC Section 507.5.7, added by MMC V-300-2.62 e. No parking is permitted in front of fire hydrants. Hydrants located on streets (Public or Private Street) shall have an unobstructed clearance of not less than 30 feet per CA Vehicle Code 22514. Provide stripping per CA Vehicle Code 22500.1. CFC Section 507.5.4

61. Fire service water laterals for building sprinkler systems. a. Each building shall have a fire service water laterals for the automatic fire sprinkler system and shall meet the California Fire Code requirements Chapter 9 and the NFPA 13 and other applicable Standards. Note, the utilities drawings provided are not reviewed nor approved for construction. CFC Section 912.1
b. The location of the FDC’s/PIV’s (fire department connection/post indicator valve) shall be at a readily visible and accessible location off the fire access road and approved by the Fire Code Official. FDC’s/PIV’s shall not be located behind parking stalls nor behind any other obstruction. Final review for location for the FDC’s/PIV’s will be conducted during the construction permit process. CFC Section 912.2 c. FDC/PIV Signage. A metal sign with raised letters at least 1 inch in size shall be mounted on all fire department connections. Signage shall be reflective, weather resistive and approved by the Fire Code Official. CFC Section 912.5 d. Backflow Protection. Potable water supply to the automatic sprinkler and/or the standpipe systems shall be protected against backflow as required by the Health and Safety Code section 13114.7 and the City of Milpitas Utilities Engineering Division.

CFC Section 912.6

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24 e. Automatic fire sprinkler riser location. The fire sprinkler system riser shall not be located within electrical rooms or storage closets and shall be provided with clear access and working clearance. California Fire Code Section 903.3.5.5, added by MMC Section V300-2.66

62. Access Control Devices. When access control devices including bars, grates, gates, electric or magnetic locks or similar devices, which would inhibit rapid fire department emergency access to the building, are installed, such devices shall be approved by the Fire Code Official.

All access control devices shall be provided with an approved means for deactivation or unlocking by the fire department. Access control devices shall also comply with Chapter 10 Egress. CFC Section 504.6, added by MMC Section V-300-2.59

63. Premises Identification. New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background. Address numbers shall be Arabic numerals or alphabet letters and shall be consistent with Milpitas standardized addressing guidelines. CFC Section 505 The Fire Dept. may require the installation of address numbers at multiple building locations.

CFC Section 102.9

64. All required addresses shall be illuminated. CFC Section 505.3, added by MMC V-300-2.60

65. Fire Dept. emergency Key Box (Knox Box, Knox locks, Knox electric switches, etc). The Fire Code Official is authorized to require a key box(es) to be installed in an approved location(s) if necessary for life-saving or fire-fighting purposed. Quantify and location shall be as directed by the Fire Code Official. CFC Section 506 Locked mechanical closets, electrical closets, fire alarm closets, sprinkler riser closets, etc. will need a Fire Dept. approved lock or “Knox” key box.

66. Building/Structure Requirements.
a. The buildings shall be provided with an automatic fire sprinkler system in conformance with the NFPA 13 or NFPA 13D Standards. System type will depend on building/structure construction type and area analysis. California Fire Code Section 903.3
b. All new installations of sprinkler systems shall preclude sprinkler test and system drain water from discharging into the storm drain; provisions to direct water to the sanitary sewer or landscape or other approved means shall be provided. Sprinkler system design shall include the proposed method for drainage of sprinkler system discharge. Storm Water Pollution Regulations

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25 67. Landscape sheets. The proposed landscaping may be impacted by the comments above and the requirements for fire access, fire systems and devices (such as apparatus access, hydrants, fire service lines, fire department connections valves, etc.). The Fire Dept. reserves the right to relocate, delete or change the proposed landscaping when in conflict with fire systems and devices. CFC 507.5.4

68. Complete plans and specifications for all aspects of fire protection systems shall be submitted to the Fire Department for review and approval prior to system installation. CFC Section 901.2

POLICE DEPARTMENT CONDITIONS OF APPROVAL

69. All entrances to the facility shall be posted with appropriate signage such as “No Trespassing/ Loitering” and applicable towing advisements such as 22658(a) CVC to assist in the removal of unauthorized person and vehicles from the private premises.

70. Parking lots and associated driveways, circulation areas, aisles, passageways, recesses, and grounds contiguous to buildings shall be provided with lighting of sufficient wattage to provide adequate illumination to make clearly visible the presence of any person on or about the premises during the hours of darkness.

71. Parking issues presented by this project could create concerns if adjacent parking lots belonging to surroundings businesses are utilized. The parking procedures need to be clearly understood and followed by guests of the proposed property. The parking stalls within the property shall be clearly marked for guests and include disabled parking spaces as required by law.

72. Any and all areas controlled by electronic security devices (i.e. key fobs, access cards, keypads, etc.) shall have Knox boxes installed near such access points with the Knox boxes containing the appropriate security devices to gain entry. If access points are controlled by keypads, management shall provide the Police Department with the needed code(s) and regularly update the Police Department if such code(s) change.

73. An up-to-date map of the interior floor plan shall be provided to the Police Department. The map shall minimally identify the locations of each room, entry/exit points, storage areas, locations of security cameras, etc.

74. Landscaping shall be of the type and situated in locations to maximize observation while providing the desired degree of aesthetics. Security planting materials are encouraged.

Landscaping shall not conceal doors or windows from view, obstruct visibility of the parking lot from the street, nor hinder access to the roof, if needed.

75. Video/security cameras shall be implemented for the enclosed building and the exterior perimeter. The exterior video/security cameras shall record in high definition and cover the entire exterior which includes the parking lots, parking lot entrances/exits, and building entrances/exits. The interior video/security cameras shall record in high definition and cover

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26 every floor’s corridors/hallways, main lobby area, front-desk, and building entrances/exits.

The video/security system shall have the capacity to save/store footage for 30 days and have the capability to be downloaded.

76. Property Manager shall file emergency notification form with the police department so law enforcement can contact property manager in the event of any major accident, emergency, or unforeseen circumstance.

77. All windows not visible from the public street shall have burglary resistant glazing; the type that attaches to the window frame are preferable.

Key:
(P) = Planning
(B) = Building
(E) = Engineering
(F) = Fire Prevention
(PD) = Police Department
(CA) = City Attorney

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27 NOTICE OF RIGHT TO PROTEST
The Conditions of Project Approval set forth herein include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d)(1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), began on date of adoption of this resolution. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions.

AGREEMENT
Permittee/Property Owner
The undersigned agrees to each and every condition of approval and acknowledges the NOTICE OF RIGHT TO PROTEST and hereby agrees to use the project property on the terms and conditions set forth in this Permit.

Dated: _________________ ______________________________________ Signature of Permittee

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Authorize the City Manager, or Designee, to Negotiate and Execute Purchase Orders and Sales-Related Documents to Effectuate the Purchase of Three 2026 Chevrolet Silverado EV Trucks and Two 2025 Dump Trucks (Staff Contact: Luz Cofresí-Howe, Finance Director, 408-586-3111; and Christian Di Renzo, Public Works Director, 408-586-2602)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 6/16/2026
Recommendation: Authorize the City Manager, or designee, to negotiate and execute purchase orders and sales-related documentation with
(1) National Auto Fleet Group for the purchase of three 2026 Chevrolet Silverado EV trucks for an amount not to exceed $183,714, inclusive of sales tax and fees; and (2) Golden Gate Truck Center for the purchase of two 2025 dump trucks for an amount not to exceed $314,608, inclusive of sales tax and fees.

BACKGROUND:

The Public Works Department manages a fleet of 302 vehicles, including sedans, work trucks, patrol vehicles, fire engines, and specialized trucks to support City operations. On June 17, 2025, City Council approved and accepted a non-competitive grant from Silicon Valley Clean Energy (SVCE) and authorized staff to negotiate and execute documents required to purchase up to five Ford F-150 Lightning trucks. In August 2025, staff purchased one off-the-lot Ford F-150 Lightning using the grant funds. Staff placed an order for the remaining four Ford F-150 Lightnings in November 2025 but were notified by Ford in December 2025 that production had ceased and the order was canceled. The purchase of these electric vehicles is important to (1) help the City meet its goals of the Climate Action Plan related to electrifying the City’s fleet and (2) replace vehicles that are beyond or approaching the end of their useful life.

Additionally, of the 302 vehicles in the City fleet, nine are dump trucks, two of which are mid-sized dump trucks. Both mid-sized dump trucks are over 20 years old and were recently removed from service because they failed the required California Air Resources Board opacity testing. As these were the City's only mid-sized dump trucks, replacement is essential to maintain operational capacity. On February 3, 2026, as part of the FY 2025-26 Mid-Year Report, City Council approved an additional appropriation for the purchase of two new midsized dump trucks.

To maintain operational capacity, reduce maintenance and repair costs by replacing legacy vehicles, and support the City’s Climate Action Plan, staff are seeking authorization to purchase three half-ton trucks and two mid-sized dump trucks, all but one of which are electric vehicles.

ANALYSIS:

On June 25, 2025, Sourcewell, a State of Minnesota local government unit and service cooperative, issued a Request for Proposal (RFP #081325) for Automobiles, SUVs, Vans, and Light Trucks with Related Equipment and Accessories. The City’s Purchasing Agent, in accordance with City Municipal Code Section I-2-3.05 (Public Agency Purchases), which authorizes the Purchasing Agent to make purchases based upon an agreement or cooperative purchasing program entered into by another public agency, reviewed the Sourcewell RFP and awarded contract, and confirmed the RFP competitive process was consistent with, and at least as restrictive as, the City’s procurement processes. On November 12, 2025, Sourcewell executed Contract No.

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081325-NAF with 72 Hour LLC, dba National Auto Fleet Group pursuant to the RFP. Staff seek authorization to negotiate and execute a purchase order and sales-related documentation with National Auto Fleet Group leveraging this cooperative to purchase three 2026 Chevrolet Silverado EV e4WD Crew Cab Standard Range Work Trucks for a not-to-exceed amount of $183,714. The purchase of these all-electric vehicles will be fully funded by the SVCE grant.

On February 8, 2024, Sourcewell issued a Request for Proposal (RFP #032824) for Class 4-8 Chassis and Cabs with Related Equipment, Accessories, and Services. The City’s Purchasing Agent confirmed the RFP competitive process was consistent with, and at least as restrictive as, the City’s procurement processes. On August 28, 2024, Sourcewell awarded Contract No. 032824-DAI to Daimler Truck North America pursuant to the RFP. Daimler Truck North America has three subsidiaries: Western Star Truck Sales Inc., Freightliner LLC, and Daimler Truck Financial Services. Western Star Truck Sales Inc. is the subsidiary that sells the dump trucks staff request to purchase, and their authorized dealer for our region is Golden Gate Truck Center. Staff seek authorization to negotiate and execute a purchase order and sales-related documentation with Golden Gate Truck Center to purchase one 2025 EV dump truck (Rizon e18L) for a not-to-exceed amount of $224,994 and one 2025 gas dump truck (Isuzu NRR) for a not-to-exceed of $89,614, with a combined purchase order amount of $314,608. The Rizon dump truck will be partially funded by the SVCE grant funds (approximately $44,994) with the remainder, as well as the full amount of the Isuzu dump truck, funded by the City’s Equipment Replacement Fund.

All vehicle provisioning will be completed in-house by Public Works staff.

POLICY ALTERNATIVE(S):

Alternative 1: Do not authorize these purchases.

Pros: The City would not incur these expenditures.

Cons: The City will continue to see increased maintenance costs for vehicles that have exceeded their useful life and will forfeit the SVCE grant funds.

Reason for Not Recommending: The funds are already appropriated in the SVCE grant and Equipment Replacement funds based on previous City Council actions. Not expending these funds will result in forfeiture of the SVCE grant funds which could jeopardize future City applications for similar grants, and the City will miss an opportunity to support its Climate Action Plan goals for electrifying the City’s fleet. The City will also continue to incur increasing maintenance costs and run the risk of vehicle failures for legacy vehicles that are beyond their useful lives. Additionally, the City will have to operate without mid-sized dump trucks which will affect operational capacity and efficiency.

PROJECT SCHEDULE/KEY MILESTONES
Following approval of this recommendation, staff expect to issue purchase orders for these purchases by July 31, 2026. The estimated lead time for receipt of the vehicles from the date of purchase order is six to seven months.

FISCAL IMPACT:

After purchase of an off-the-lot Ford Lightning in August 2025, the SVCE grant fund has a current remaining balance of $338,527. These remaining funds will be utilized to purchase the requested electric vehicles. As part of the FY2025-26 Mid-Year Report, City Council appropriated an additional $301,302 in the Equipment Replacement Fund (Fund 500) for the purchase of two dump trucks and funding of $59,000 was included in the FY2025-26 Adopted Budget. By purchasing the electric dump truck with the $44,994 of the SVCE grant funds, the draw on the City’s Equipment Replacement Fund will be reduced. No additional funding or budget amendment is required, and this action has no effect on the General Fund.

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To summarize, these purchases, if approved, will be funded as follows:

Purchase Cost Funding Source
Three 2026 Chevrolet Silverado EV Trucks $183,714 SVCE Grant (full cost) One 2025 EV Dump Truck (Rizon e18L) $224,994 SVCE Grant ($44,994) Equipment Replacement Fund ($180,000)
One 2025 Gas Dump Truck (Isuzu NRR) $89,614 Equipment Replacement Fund (full cost) Total of Request $498,322
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

This item is not a project under the California Environmental Quality Act (CEQA) Guideline 15378(b).

ATTACHMENT(S):

None.

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve a Design Services Agreement with TJKM Transportation Consultants for HSIP Traffic Safety Improvements, CIP No. 4314 (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602; and Michael Silveira, City Engineer, 408-586-3303)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 6/16/2026
Recommendation: Approve and authorize the City Manager, or designee, to execute a Design Services Agreement with TJKM Transportation Consultants in an amount not-to-exceed $327,732 for the HSIP Traffic Safety Improvements, CIP No. 4314.

BACKGROUND:

The Traffic and Transportation Engineering Section of the Public Works Department (“Section”) is responsible for planning and implementing roadway safety improvements identified in the adopted 2024 Citywide Travel Safety Plan (Safety Plan) and Trail, Pedestrian and Bicycle Master Plan. The Section pursues external funding opportunities to implement recommended safety improvements in these Plans to preserve the annual street revenue streams/funding sources (Gas Tax, Senate Bill 1 Road Maintenance and Rehabilitation Account (SB1 RMRA), Measure B, Vehicle Registration Fee) for preventive maintenance of and upgrades to the City’s street infrastructure.

On May 6, 2024, the California Department of Transportation (Caltrans), specifically the Division of Local Assistance, issued a Call-for-Projects for the Highway Safety Improvement Program Cycle 12 (HSIP) grant program, which is overseen by the Federal Highway Administration. The HSIP grant program was part of the Infrastructure Investment and Jobs Act (H.R.3684), signed in 2021 by the Biden Administration, and is available to local, regional, and Tribal communities as part of a systematic approach to achieve significant reductions in traffic fatalities and serious injuries on roadways, which aligns with the City’s initiatives. Funding is available for a broad range of safety improvements, including pedestrian and bike enhancements, intersection upgrades, systemic roadway features, and new countermeasures.

On September 9, 2024, staff applied for the HSIP grant program, and Caltrans informed the City on February 23, 2025, that it would receive $2,064,330 in grant funding, with the City required to provide a 10% local funding match of $229,370. The Grant will fund the design and construction for the installation of signal head reflective backplates and Leading Pedestrian Intervals at seventy-two (72) City signalized intersections; improve visibility and retroreflective signage at three (3) unsignalized/stop-controlled intersections including McCarthy Blvd. and Murphy Ranch Road, Kennedy Drive and N. Park Victoria Drive, and N. Temple Drive and Golden Hills Drive; and improve the safety of the horizontal curve along McCarthy Blvd. towards the City Limits as all this work was identified as priority improvements in the Safety Plan.

Caltrans issued an Authorization to Proceed for the preliminary engineering (PE) phase, and the Program Supplement Agreement (Federal Project No. HSIPL-5314[016]) was executed by the City and State on November 20, 2025, to fund the PE phase of the Project. To start this phase, the City must retain a design consultant to assist with NEPA and Caltrans’ E-76 clearance and prepare Construction Documents for the Construction phase of the Project.

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As part of the Adopted 2027-2031 Capital Improvement Program, the City Council approved the HSIP Traffic Safety Improvements, CIP No. 4314 (“Project”) with a budget appropriation of $2,293,700, of which $2,064,330 is funded by the HSIP grant and the remaining $229,370 (10% City local match) is funded by the Gas Tax Fund for the work as described above.

ANALYSIS:

In accordance with the City Municipal Code I-2-3.09 - Request for Proposals (RFP) Procedure, a Request for Proposals (RFP 26-225) was released on April 14, 2026, to seek a design consultant with expertise in providing planning, design, and construction services for the Project. RFP 26-225 was publicly posted on the City’s eProcurement system, OpenGov Procurement, and 66 firms downloaded the RFP documents. Four (4) firms submitted proposals by the published closing date of May 8, 2026. The proposals were evaluated and scored according to the criteria outlined in the solicitation. The following table summarizes the rating of each proposer.

Following the initial scoring, the three (3) highest-ranked firms were invited to participate in an oral interview to discuss their proposal further, provide clarifications, and answer questions. TJKM Transportation Consultants was determined to be the best value proposer in accordance with the RFP evaluation criteria. Per the City Municipal Code I-2-3.13 – Contracting for Consultant, staff recommends City Council approve the Design Services Agreement with TJKM Transportation Consultants in an amount not-to-exceed $327,732 for the Project (Attachment A). The scope of work is more particularly described in the Design Services Agreement – Exhibit A. The three (3) highest-ranked firms were added to the City’s On-Call Qualified List of Consultants related to traffic and transportation capital improvement projects for a period of five (5) years.

PROJECT SCHEDULE/KEY MILESTONES:

Upon the City Council approval of the Design Services Agreement, TJKM Transportation Consultants will start the design in July 2026 and is anticipated to be completed by the end of Spring of 2027. The construction is anticipated to start by the summer of 2027, pending NEPA clearance and the approval of the E-76 process with Caltrans.

POLICY ALTERNATIVE(S):

Alternative 1: Not approving the Design Services Agreement with TJKM Transportation Consultants.

Pros: None
Cons: The completion of design will be delayed by a minimum of six (6) months and potentially jeopardizes Caltrans obligating the funding by 3/31/2028 to authorize the construction phase. The City will forfeit $2,064,330 in grant funding if the obligation deadline is not met.

Reason for Not Recommending: Postponing safety improvements will continue to expose bicyclists, motorists, and pedestrians to the risk of traffic fatalities and serious injury on City roadways, and the City may Evaluation
Criteria
Max
Points
TJKM
Transportation
Consultants
Bennett
Engineering
Kimley-Horn Interwest
Consulting
Group, Inc.

Cover Letter 5 4.8 4.75 4.00 2.00
Company Profile 30 28.50 27.00 27.00 12.00
Execution Plan 35 31.50 31.50 24.50 10.50
References 5 4.55 4.88 4.00 0.00
Personnel Assigned 15 14.25 14.25 15.00 6.00
Proposed
Compensation
10 8.50 9.00 9.00 3.00
Total Score 100 92.10 91.38 83.50 33.50

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be liable for any roadway incident that occurs. Due to the City’s limited annual street funding sources, it is likely these improvements will not be funded in the near future.

FISCAL IMPACT:

The Project has a total budget appropriation of $2,293,700, funded by the HSIP grant ($2,064,330) and the Gas Tax Fund ($229,370). As of June 2, 2026, available funding for the design phase is $378,000, which is sufficient to execute the Design Services Agreement with TJKM Transportation Consultants in an amount notto-exceed $327,732 CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The Project entails the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use, and is exempt from CEQA pursuant to Cal. Code Regs., tit. 14, § 15301. The project further entails the replacement or reconstruction of existing facilities, with the new facilities located on the same site as the facilities replaced, having substantially the same purpose and capacity as the structure replaced, and being exempt from CEQA pursuant to Cal. Code Regs., tit. 14, § 15302. A Notice of Exemption for CEQA will be filed with the County of Santa Clara prior to the award of a construction contract.

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA):

Since the Project will be funded by a federal-aid program, compliance with the NEPA is legally required before any construction work can begin or funds can be released. Due to the nature of the work, it is anticipated the Project will have no significant environmental footprint. Therefore, a Categorical Exclusion for NEPA is anticipated to be filed with Caltrans prior to the approval of E-76.

ATTACHMENT:
(a) Design Services Agreement

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38077.00180\29175422.11 C2
1 CITY OF MILPITAS

DESIGN SERVICES AGREEMENT
CONTRACT NO.

1. PARTIES AND DATE.

This Agreement is made and entered into as ________________, 20____ by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and TJKM Transportation Consultants a C- CORPORATION, with its principal place of business at 4305 Hacienda Drive, Suite 550, Pleasanton, CA, 94588, (hereinafter referred to as “Designer”). City and Designer are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Designer. Designer desires to perform and assume responsibility for the provision of certain professional design services required by the City on the terms and conditions set forth in this Agreement. Designer warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however, that if Designer is a corporation or other organization, the Project Designer designated pursuant to Section 3.2, and not the Designer itself, shall be fully licensed to practice as an architect and/or engineer in the State of California.

2.3 Project. City desires to engage Designer to render such services for the Highway Safety Improvement Program (HSIP) Traffic Safety Improvement Project, CIP No. 4314 – HSIPL – 5314 (016) ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Designer.

3.1.1 Scope of Services. Designer promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional design and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Designer shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. Additionally, Designer shall comply with all Federal requirements applicable to the Services.

3.1.2 Term.

The term of this Agreement shall be from July 01, 2026, to December 31, 2028, unless earlier terminated as provided herein. The City reserves the right to review the Designer’s performance at the end of each year and cancel all or part of the Agreement.

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38077.00180\29175422.11 C2
2 3.2 Project Designer; Key Personnel.

3.2.1 Project Designer. Designer shall name a specific individual to act as Project Designer, subject to the approval of City. Designer hereby designates RUTA JARIWALA (License No. 73840) to act as the Project Designer for the Project. The Project Designer shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Designer for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Designer shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Designer shall be of at least equal competence as the prior Project Designer. In the event that City and Designer cannot agree as to the substitution of a new Project Designer, City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel. In addition to the Project Designer, Designer has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Designer may substitute others of at least equal competence upon written approval of the City. In the event that City and Designer cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel, engineers or consultants who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Designer at the request of the City. The key additional personnel, engineers and consultants for performance of this Agreement are as follows: RUTA JARIWALA, PRINCIPAL-IN-CHARGE and ENGINEER OF RECORD, PROFESSIONAL CIVIL ENGINEER LICENSE #73840, NAYAN AMIN, PROJECT MANAGER, PROFESSIONAL TRAFFIC ENGINEER LICENSE #2290.

3.3 Hiring of Consultants and Personnel.

3.3.1 Right to Hire or Employ. Designer shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Designer may delegate without relieving Designer from administrative or other responsibility under this Agreement. Designer shall be responsible for the coordination and cooperation of Designer’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. Designer shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.

3.3.2 Qualification and License. All architects, engineers, experts and other consultants retained by Designer in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.

3.3.3 Standards and Insurance. All architects, engineers, experts and other consultants hired by Designer shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Designer’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.

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38077.00180\29175422.11 C2
3 3.3.4 Assignments or Staff Changes. Designer shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Designer’s consultants and key personnel shall be subject to approval by City.

3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Designer at Designer’s sole expense.

3.4 Standard of Care.

3.4.1 Standard of Care. Designer shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Designer shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Designer represents and maintains that it is skilled in the professional calling necessary to perform the Services. Designer warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Designer represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Designer shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Designer’s failure to comply with the standard of care provided for herein.

3.4.2 Performance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Designer and shall not be re-employed to perform any of the Services or to work on the Project.

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Designer shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Designer by law.

Designer shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. If the Designer performs any work knowing it to be contrary to such laws, rules and regulations, Designer shall be solely responsible for all costs arising therefrom. Designer shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.5.2 Drawings and Specifications. Designer shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as

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38077.00180\29175422.11 C2
4 Additional Services which were not known or reasonably should not have been known by Designer.

Designer shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit “A” attached hereto. For the preparation of all such drawings and specifications, the Designer shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Designer and City.

3.5.3 Americans with Disabilities Act. Designer will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Designer shall inform City of the existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Designer brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Designer’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Designer, and the Designer shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Designer request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Designer shall be responsible to the City only pursuant to the indemnification provisions of this Agreement.

3.5.4 Permits, Approvals and Authorizations. Designer shall provide City with a list of all permits, approvals or other authorizations required for the Project from all federal, state or local governmental bodies with approval jurisdiction over the Project. Designer shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.

3.5.5 Water Quality Management and Compliance.
(a) Compliance with Water Quality Laws, Ordinances and Regulations.

Designer shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); and any and all regulations, policies, or permits issued pursuant to any such authority. Designer shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
(b) Standard of Care. Designer warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Sections 3.5.5(a) of this Agreement. Designer further warrants that it, its employees and subcontractors will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services. (c) Liability for Non-compliance.
(i) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Sections 3.5.5(a) of this Agreement is a violation of federal and state law.

Notwithstanding any other indemnity contained in this Agreement, Designer agrees to indemnify and hold

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38077.00180\29175422.11 C2
5 harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (ii) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Designer’s failure to comply with any applicable water quality law, regulation, or policy. Designer hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity. (iii) Damages: City may seek damages from Designer for delay in completing the Services caused by Designer’s failure to comply with the laws, regulations and policies described in Section 3.5.5(a) of this Agreement, or any other relevant water quality law, regulation, or policy.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates. City retains Designer on an independent contractor basis and Designer is not an employee of City. Designer is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Designer shall also not be employees of City, and shall at all times be under Designer’s exclusive direction and control. Designer shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Designer shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Designer Services. Designer shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

3.7.2 Timely Performance Standard. Designer shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein. Specifically, Designer shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the City and within any completion schedules adopted for the Project. Designer agrees to coordinate with City’s staff, contractors and consultants in the performance of the Services, and shall be available to City’s staff, contractors and consultants at all reasonable times.

3.7.3 Performance Schedule. Designer shall prepare an estimated time schedule for the performance of Designer’s Services, to be adjusted as the Project proceeds. Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Designer cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement.

The schedule shall not be exceeded by Designer without the prior written approval of City. If the Designer’s Services are not completed within the time provided by the agreed upon performance schedule, or any

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6 milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Designer will be responsible pursuant to the indemnification provision of this Agreement.

3.7.4 Excusable Delays. Any delays in Designer’s work caused by the following shall be added to the time for completion of any obligations of Designer: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Designer; and (5) any act of God or other unforeseen occurrence not due to any fault or negligence on the part of Designer. Neither the City nor the Designer shall be liable for damages, liquidated or otherwise, to the other on account of such delays.

3.7.5 Request for Excusable Delay Credit. The Designer shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension.

The City’s findings of fact thereon shall be final and conclusive on the parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Designer for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Designer make an application for an extension of time, Designer shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.

3.8 Additional Designer Services.

3.8.1 Request for Services. At City’s request, Designer may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted design practice.

3.8.2 Definition. As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary for the Designer to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Designer shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Designer as to the compensation to be paid for such services. City shall pay Designer for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Designer pursuant to the indemnification provision of this Agreement.

3.8.3 Examples of Additional Services. Such Additional Services shall not include any redesign or revisions to drawings, specifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Designer was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above. Such Additional Services may include, but shall not be limited to:
(a) Separately Bid Portions of Project. Plan preparation and/or administration of work on portions of the Project separately bid.

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7 (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor. Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Designer to detect and report such matters when it reasonably should have done so shall not be compensated.
(d) Inconsistent Approvals or Instructions. Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Designer. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Designer is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services. Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Designer's services for the Project.

3.9 City Responsibilities. City’s responsibilities shall include the following:

3.9.1 Data and Information. City shall make available to Designer all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Designer with a preliminary construction budget (“City’s Preliminary Construction Budget”).

3.9.2 Project Survey. If required pursuant to the scope of the Project and if requested by Designer, City shall furnish Designer with, or direct Designer to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.9.4 Testing. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must be known to determine soil condition or to ensure the proper development of the required drawings and specifications.

3.9.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection or environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.

3.9.6 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.

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8 3.9.7 City’s Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”).

City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. The City Manager hereby designates Christian Di Renzo, Public Works Director, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Designer shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.9.8 Review and Approved Documents. Review all documents submitted by Designer, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Designer of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.

3.10 Compensation.

3.10.1 Designer’s Compensation for Basic Services. City shall pay to Designer, for the performance of all Services rendered under this Agreement, the total not to exceed amount of Three Hundred Twenty-Seven Thousand Seven Hundred Thirty-Two Dollars ($327,732) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “B” and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

3.10.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Designer perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. If City requires Designer to hire consultants to perform any Additional Services, Designer shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Designer shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

3.10.3 Reimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Designer shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in Exhibit “C” attached hereto.

Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Designer in the interest of the Project. Designer shall be required to acquire prior written consent in order to obtain reimbursement for the following: (1) extraordinary transportation expenses incurred in connection with the Project; (2) out-of-town travel expenses incurred in connection with the Project; (3) fees paid for securing approval of authorities having jurisdiction over the Project; (4) bid document duplication costs in excess of $1,000.00; and (5) other costs, fees and expenses in excess of $1,000.00.

3.10.4 Payment to Designer. Designer’s compensation and reimbursable expenses shall be paid by City to Designer no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein

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9 by reference. In order to receive payment, Designer shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Designer shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule.

In order to receive payment, Designer shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.

Upon cancellation or termination of this Agreement, Designer shall be compensated as set forth in the termination provision herein.

3.10.5 Withholding Payment to Designer. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Designer is liable under the Agreement or state law. Payments to the Designer for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Designer shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from parties not within the Designer’s reasonable control.

3.10.6 Prevailing Wages. Designer is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, 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 Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Designer agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Designer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Designer shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Designer’s principal place of business and at the Project site. Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Designer or its consultants to comply with the Prevailing Wage Laws. It shall be mandatory upon the Designer and all subconsultants to comply

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10 with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.10.7 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Designer and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Designer shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

3.10.8 Labor Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Designer’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Designer or any subcontractor that affect Designer’s performance of Services, including any delay, shall be Designer’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Designer caused delay and shall not be compensable by the City. Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Designer or any subcontractor.

3.11 Notice to Proceed.

Designer shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.12 Termination, Suspension and Abandonment.

3.12.1 Grounds for Termination; Designer’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Designer shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Designer shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Designer. Designer hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Designer may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Designer as provided in this Agreement.

3.12.2 City’s Suspension of Work. If Designer’s Services are suspended by City, City may require Designer to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Designer.

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11 3.12.3 Documents and Other Data. Upon suspension, abandonment or termination, Designer shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Designer’s Services under this Agreement. Upon payment of the amount required to be paid to Designer pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Designer under this Agreement. Designer shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.

3.12.4 Employment of other Designers. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.13 Ownership and Use of Documents; Confidentiality.

3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, design presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Designer or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Designer shall provide to City copies of all Project Documents required by City. In addition, Designer shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Designer shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.13.2 Right to Use. Designer grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Designer, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Designer in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Designer or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Designer.

Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Designer shall be at City’s own risk with respect to third parties. If City uses or

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12 reuses the Project Documents on any project other than this Project, it shall remove the Designer’s seal from the Project Documents and hold harmless Designer and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.

3.13.3 License. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein.

Designer shall require any and all subcontractors and consultants to agree in writing that City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.

3.13.4 Right to License. Designer represents and warrants that Designer has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Designer prepares or causes to be prepared pursuant to this Agreement. Designer shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Designer makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Designer and provided to Designer by City.

3.13.5 Confidentiality. All Project Documents, either created by or provided to Designer in connection with the performance of this Agreement, shall be held confidential by Designer to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Designer for any purposes other than the performance of the Services. Designer shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project.

Nothing furnished to Designer which is otherwise known to Designer or is generally known, or has become known, to the related industry shall be deemed confidential. Designer shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Designer shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Designer, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Designer’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Designer's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Designer, the City, its officials, officers, employees, agents, or volunteers.

3.14.2 If Designer’s obligation to defend, indemnify, and/or hold harmless arises out of Designer’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Designer’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Designer, and, upon Designer obtaining a final adjudication by a court of competent jurisdiction, Designer’s liability for such claim, including the cost to defend, shall not exceed the Designer’s proportionate percentage of fault.

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13 3.15 Insurance. Designer shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under Exhibit “D” (Insurance Requirements), attached hereto and incorporated herein by this reference. In addition, Designer shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required therein.

3.16 Records.

Designer shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Designer shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Designer shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

Designer shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.

3.18 Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described herein.

Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for design services between City and the designer chosen therefor by City.

3.19 Mediation.

Disputes arising from this Agreement may be submitted to mediation if mutually agreeable to the parties hereto. The type and process of mediation to be utilized shall be subject to the mutual agreement of the parties.

3.20 Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Designer shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

3.21 Asbestos Certification.

Designer shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Designer prepares for the Project. Designer shall require all consultants who prepare any other documents for the Project to submit the same written certification. Designer shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the

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14 Project contains asbestos or any other material deemed to be hazardous by the state or federal government.

These certifications shall be part of the final Project submittal. Designer shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.22 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in Santa Clara County.

3.24 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.25 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

3.26 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.27 Safety.

Designer shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Designer shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

Designer shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Designer shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Designer's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

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15 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:

CITY:

City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Roberto Alonzo
DESIGNER:

TJKM Transportation Consultants
4305 Hacienda Drive, Suite 550,
Pleasanton, CA, 94588
Attn: Nayan Amin
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.30 Time of Essence.

Time is of the essence for each and every provision of this Agreement.

3.31 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.32 Prohibited Interests.

3.32.1 Solicitation. Designer maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Designer, to solicit or secure this Agreement. Further, Designer warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Designer, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.

3.32.2 Conflict of Interest. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.33 Equal Opportunity Employment.

Designer represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or any other classification protected by federal or state law. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Designer shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.34 Labor Certification.

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16 By its signature hereunder, Designer certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.35 Wage Theft Certification.

3.35.1 Designer, and any subconsultant it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.

3.35.2 BY SIGNING THIS AGREEMENT, DESIGNER 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 DESIGNER OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. DESIGNER FURTHER AFFIRMS THAT IT OR ITS

SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT, DECISION OR

ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY SATISFIED,

DESIGNER AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS CURRENTLY SATISFYING SAID

JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN

APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY AND THAT DESIGNER OR

ITS SUBCONSULTANT(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

3.35.3 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 Designer or a subconsultant it employs to perform work under this Agreement has violated any applicable wage and hour law, or Designer learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Designer 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. Designer or its subconsultant(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Designer or its subconsultant is subject to a payment or other alternative plan, the Designer or its subconsultant shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.

3.35.4 For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

3.35.5 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.

3.35.6 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

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17 notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

3.36 Subcontracting.

As specified in this Agreement, Designer shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.

3.37 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.38 Entire Agreement.

This Agreement, with its exhibits, contains the entire agreement of the parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the parties hereto. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all parties hereto.
[SIGNATURES ON FOLLOWING PAGE]

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Milpitas City CouncilJune 16, 2026

Milpitas City Council
June 16, 2026