Agenda packet — Morgan Hill City Council, May 21, 2025 (part 2 of 6)

Agreement for Countywide Household
Hazardous Waste Collection Program Page 13 of 27

32. ENTIRE AGREEMENT
This document embodies the entire Agreement between the parties with respect to the subject matter hereof. No modification of this Agreement shall be effective unless and until modification is evidenced by writing signed by all parties or their assigned designates.

33. NOTICES
All notices and communications herein required shall be in writing to the other party as follows, unless expressly changed in writing:

CITY of City Representative
Representative’s Title
City Address
County of Santa Clara Director
Consumer and Environmental Protection Agency
1553 Berger Drive
San José, California 95112

34. CONTRACT EXECUTION
Unless otherwise prohibited by law or COUNTY policy, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the COUNTY.
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/ /
/ /
/ /
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Morgan Hill Tanya Carothers
Env Services Administrator
17575 Peak Avenue
Morgan Hill, California
95037
DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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Hazardous Waste Collection Program Page 14 of 27
IN WITNESS WHEREOF, the parties have executed this AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM on the dates as stated below:

Date: COUNTY OF SANTA CLARA

JAMES R. WILLIAMS
County Executive
Date: “CITY”

CITY/TOWN OF
Title
A municipal corporation
APPROVED AS TO FORM AND LEGALITY:

WILLIE NGUYEN
Deputy County Counsel
Attachments:

A Projected Fiscal Years 2025, 2026, and 2027 AB939 HHW Fee Funding Allocation by Jurisdiction
B Estimated HHW Program Fixed Costs for Fiscal Years 2025, 2026, and 2027 C HHW Schedule of Collection Events for Fiscal Year 2025 D Household Hazardous Waste Emergency Collection Plan
E Exhibit-E Insurance Requirements for Environmental Services Contracts DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E Approved as to form:

Cynthia Hasson
Assistant City Attorney
City of Morgan Hill
City Manager
6/10/2024
DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74 6/28/2024

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Hazardous Waste Collection Program Page 15 of 27
ATTACHMENT A: PROJECTED FISCAL YEARS 2025-2027 ANNUAL HHW FEE

FUNDING ALLOCATION BY JURISDICTION
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Hazardous Waste Collection Program Page 16 of 27
ATTACHMENT B: ESTIMATED ANNUAL HHW PROGRAM FIXED COSTS FOR FISCAL YEARS 2025, 2026, AND 2027
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Hazardous Waste Collection Program Page 17 of 27
ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2025-2027*
DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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Hazardous Waste Collection Program Page 18 of 27
ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2025-2027* (Continued) *SUBJECT TO CHANGE
2025/Month Day Date Location Type of Event County Holidays/ Notes January Wed 1 No Event No Event NEW YEAR'S
Thurs,Fri, Sat 2,3,4 San Martin Permanent
Thurs,Fri,Sat 2,3,4 San Jose Permanent
Thurs,Fri 9,10 San Jose Permanent
Saturday 11 Sunnyvale Temporary TBD
Thurs,Fri,Sat 16,17,18 San Jose Permanent
Thurs,Fri 23,24 San Jose Permanent
Saturday 25 Santa Clara Temporary TBD
Thurs,Fri 30,31 San Jose Permanent
February Sat 1 San Jose Permanent
Thurs,Fri, Sat 6,7,8 San Martin Permanent
Thurs,Fri,Sat 6,7,8 San Jose Permanent
Thurs,Fri,Sat 13,14,15 San Jose Permanent
Thurs,Fri,Sat 20,21,22 San Jose Permanent
Thurs,Fri 27,28 San Jose Permanent
March Sat 1 San Jose Permanent
Thurs,Fri, Sat 6,7,8 San Martin Permanent
Thurs,Fri,Sat 6,7,8 San Jose Permanent
Thurs,Fri,Sat 13,14,15 San Jose Permanent
Thurs,Fri,Sat 20,21,22 San Jose Permanent
Thurs,Fri,Sat 27,28,29 San Jose Permanent
April Thurs,Fri,Sat 3,4,5 San Jose Permanent
Thurs,Fri, Sat 3,4,5 San Martin Permanent
Thurs,Fri 10,11 San Jose Permanent
Saturday 12 Los Altos Temporary TBD
Thurs,Fri 17,18 San Jose Permanent
Saturday 19 Sunnyvale Temporary TBD
Thurs,Fri 24,25 San Jose Permanent
Saturday 26 Santa Clara Temporary TBD
May Thurs,Fri,Sat 1,2,3 San Jose Permanent
Thurs,Fri, Sat 1,2,3 San Martin Permanent
Thurs,Fri,Sat 8,9,10 San Jose Permanent
Thurs,Fri,Sat 15,16,17 San Jose Permanent
Thurs,Fri 22,23 San Jose Permanent
Saturday 24 No Event No Event MEMORIAL DAY WEEKEND
Thurs,Fri,Sat 29,30,31 San Jose Permanent
June Thurs,Fri, Sat 5,6,7 San Martin Permanent
Thurs,Fri,Sat 5,6,7 San Jose Permanent
Thurs,Fri 12,13 San Jose Permanent
Saturday 14 Milpitas Temporary TBD
Thurs, Fri,Sat 19,20,21 San Jose Permanent
Thurs,Fri,Sat 26,27,28 San Jose Permanent
DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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Hazardous Waste Collection Program Page 19 of 27
ATTACHMENT D:

COUNTY HOUSEHOLD HAZARDOUS WASTE

EMERGENCY COLLECTION PLAN

1. PURPOSE
The purpose of the Household Hazardous Waste Emergency Collection Plan is to minimize potential public health and safety impacts, as well as to minimize costs and confusion during an emergency or disaster. This Attachment describes the services the County can provide and the responsibilities of each party for the collection of household hazardous wastes (HHW) in response to an emergency as defined by the local jurisdiction.

Jurisdictions should contact local emergency agencies, the Governor's Office of Emergency Services (OES), and California Department of Toxic Substances Control (DTSC) for more specific information on hazardous materials emergency response.

2. Timing of HHW
While it is important to have special collection opportunities for disaster-related HHW as soon as possible to avoid illegal disposal or harm to people and/or the environment, having an event or service too soon after a disaster may result in low participation. Sufficient public notification, assessment and monitoring of the disaster and cleanup process by the designated City HHW Coordinator(s) is essential.

3. Public Information/Notification:

Cities should be prepared to provide the public with information related to the problems associated with HHW along with information about special collection events and services. Upon the decision to hold an emergency collection event, it is the City’s responsibility to prepare and deliver the necessary public outreach to notify the public of an upcoming event. A City’s public outreach program should evaluate all forms of media including: newspaper ads, posters, flyers, press releases, banners, door-to-door notices, roadside signs, signs on dumpsters, radio public service announcements, social media outlets and television public access stations. Be aware of communities where multiple language outreach efforts will be necessary.

4. State HHW Collection Permits
DTSC is responsible for issuing the necessary state permits for HHW collection facilities. During an emergency, the County will obtain the necessary emergency permit for special collection of household hazardous waste from DTSC through their expedited approval process.

5. Collection Events
Temporary collection events can be set-up at various sites including parking lots, city maintenance yards, within neighborhoods needing service, and at landfills or a centralized DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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Hazardous Waste Collection Program Page 20 of 27
location to service larger segments of the population. Waste collected will be transported with a transportation vehicle provided by the HHW Program. In addition, events can be scheduled at the two existing Countywide Household Hazardous Waste Collection Facilities (CoHHWCF).

The following options are available to each participating City.

• Neighborhood Drop-off Events: The County is able to provide localized service to specific areas in need of household hazardous waste collection services. The County will work with City Solid Waste Coordinators to conduct coordinated efforts to residents in the affected area. After a specific event, waste will be transported by County staff or a hazardous waste contractor to an appropriate facility.

• Mobile HHW Event: The County conducts Household Hazardous Waste Collection Event (Events) at various sites located in Santa Clara County throughout the year. Events will be expanded to give priority to disaster victims when requested by the City. The County shall obtain all necessary permits and licenses required for the events and shall provide and/or contract for the services of properly trained personnel and hazardous waste haulers. The County shall also provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose of the household hazardous wastes collected at events.

• CoHHWCF: The County operates two permitted HHW collection facilities for the collection and storage of HHW. The County shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected at the CoHHWCF.

The CoHHWCF are located at:

San Martin, 13055 Murphy Ave, San Martin, CA 95046
San Jose, 1608 Las Plumas, San Jose, CA 95133

6. Costs, Documentation, and Reimbursements

Cities will be billed on a cost recovery basis. Costs of emergency events will be tracked and billed separately. Emergency funding applications pending from the State or Federal government for reimbursements in no way relieves the City of responsibility to make timely payment to the County in accordance with the terms of the AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM.

The County agrees to provide the City with a detailed accounting of services provided for an emergency collection. Documentation will track the time and materials of staff, outside contractor expenses, and quantities and types of waste collected to demonstrate that the wastes were generated above and beyond existing collection programs.

Services to businesses will be provided on a cost recovery basis and according to Section 12 of the

AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM, which includes program administration, on-site collection, transportation, and disposal costs. The County will assume responsibility for collecting fees from participating businesses.

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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Hazardous Waste Collection Program Page 21 of 27

7. State and Federal Assistance and Funds

It is the City’s responsibility to pursue reimbursement from State or Federal agencies.

California Governor’s Office of Emergency Services (Cal OES)

Cal OES is responsible for requesting assistan is declared a state disaster area, and the local jurisdiction deems that the needs of the disaster response are beyond ce on behalf of local jurisdictions for resources beyond the capability of the jurisdiction. State assistance may include assistance available from State, Federal, or private sources. If a local jurisdiction its capabilities, then the local jurisdiction can request assistance and reimbursement of costs from Cal OES.

Follow Standardized Emergency Management System (SEMS)
All requests and emergency responses must be in accordance with the SEMS. DTSC may have funding available for hazardous waste response and collection.

Federal Assistance
If a state disaster area is declared a federal disaster, then federal funding assistance may be available through the Cal OES. Funding and assistance may be available from Federal agencies such as FEMA and the USEPA.

Damage estimates: The city should provide to the Cal OES estimates of damages and a "scope of work requested." It is recommended that the local HHW coordinator meet ahead of time with local emergency agencies or Cal OES contacts regarding the proper procedures and wording of requests for assistance.

Funding Process: The funding process may vary depending on the unique circumstances of the disaster. The process can either be the traditional FEMA reimbursement process, or by direct assistance from USEPA.

REFERENCES

California Integrated Waste Management Board, Integrated Waste Management Disaster Plan:

Guidance for local government on disaster debris management, January 1997.

Emergency Planning Contacts and Personnel
Primary County Contact: County of Santa Clara
Consumer and Environmental Protection Agency
Household Hazardous Waste Program
ATTN: Hazardous Materials Program Manager
(408)-918-1967

For Non-Emergency after-hours, contact County Communications at: (408) 977-3220

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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Hazardous Waste Collection Program Page 22 of 27
Responsibility: Coordinate and establish proper collection and disposal methods for household hazardous waste. Assess the need for HHW and VSQG services in consultation with the City and other operations.

Cal OES Public Safety Communications Main Office
601 Sequoia Pacific Boulevard
Sacramento, CA 95811
(916) 894-5209
Cal OES
3650 Schriever Avenue
Mather, CA 95655-4203
(916) 845-8510
CHEMTREC Emergency number, (800) 424-9300
Non‑emergency (800) 262-8200
Chemtrec is a public service established by the Chemical Manufacturers Association. The Center was developed as a resource for obtaining immediate emergency response information to mitigate accidental chemical releases, and as a means for emergency responders to obtain technical assistance from chemical industry product safety specialists, emergency response coordinators, toxicologists, physicians, and other industry experts to safely mitigate incidents involving chemicals.

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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

EXHIBIT E

INSURANCE REQUIREMENTS FOR

ENVIRONMENTAL SERVICES

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

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

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

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

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

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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

D. Insurance Required

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

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

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

Additional Insured Endorsement, (Commercial General Liability Additional Insured provided pursuant to Additional Insured Endorsement #1), which shall read:
“County of Santa Clara, and members of the Board of
Supervisors of the County of Santa Clara, and the officers, agents, and employees of the County of Santa Clara,
individually and collectively, as additional insureds provided pursuant to Additional Insured Endorsement Form #1.”
Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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

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

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

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

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

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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

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

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

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

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

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

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

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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

DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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U:\Legal Forms\CONTRACT ROUTING FORMS Revised 6/13/2023 City of Morgan Hill
Contract Checklist
Contract # ________________________________
Is FPPC Required (completed by CA)?
___________
Date: ___________________
Project Name:________________________________________________________________ Contractor’s Name: ___________________________________________________________ Project Manager: _____________________________________________________________ Department: _________________________________________________________________ STANDARD CITY/AGENCY FORM:

Is this a Standard City/Agency Form without any changes:

YES NO
[If there are changes to the Standard City/Agency Form, describe in attached memo/ email]
Are there funds for this request?
YES NO
Fund:_____________________________________________________________________ Project:____________________________________________________________________ Account #: _________________________________________________________________ CONTRACTOR’S INSURANCE
***To be completed before agreement is routed to Shadia Hrichi. ***Please fill in one of the section below:

Insurance reviewed and approved on date of: __________________ Insurance is not required per email dated: _____________________ Amendment - Insurance not needed: ____X_____
*NOTE: Amended contracts do not require additional/new insurance 06/06/2024 AB 939 Countywide Agreement County of Santa Clara Tanya Carothers Public Services Dept. - Environmental Division NA - the program will be covered by HHW discretionary fees, and Implementation Funds through our Recology Contract if needed. ✔ ✔
DocuSign Envelope ID: A1E61887-624B-4B27-BA1A-CF9284E4D97E No
DocuSign Envelope ID: ADF40C33-C091-4735-AAAF-E49285323A74

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10 CITY COUNCIL STAFF REPORT
MEETING DATE: May 21, 2025
PREPARED BY:

Pam van der Leeden, GIS Manager
APPROVED BY: City Manager

APPROVE GEOGRAPHIC INFORMATION SYSTEM (GIS) ENTERPRISE

SOFTWARE AGREEMENT WITH ESRI

RECOMMENDATION(S)
Authorize the City Manager to execute a three-year small government enterprise agreement with Esri for GIS software licensing for a total amount of $126,600.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Maintaining and Enhancing Infrastructure
Guiding Documents
GIS Strategic Plan
REPORT NARRATIVE:

The purpose of this agreement is to purchase software licensing from Esri, the City’s current GIS software vendor.

How the licensing is used:

The GIS (Geographic Information Systems) Division provides geographic mapping and spatial data analysis to departments and divisions Citywide. Staff are continuing to build out the GIS program by focusing on increasing access to GIS data and applications through business system integration, data development, and staff training, all of which are made possible through our current software licensing agreement.

Some examples of how City teammates are using Esri software to access GIS:
• Through the City’s internal web map, CityMaps
• Through integration with City business applications. These include Cityworks (utility asset management), Community Development (TRAKiT) and eTRAKiT (permitting), BOSS 811 (underground utility locating), and POSM (sewer inspection/videos).
• Through desktop and web mapping software
• Through data in GIS enterprise databases
• Through a GeoHub application that will provide a public access GIS data

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10 download portal (coming in FY 2025-26)
Proposed Agreement Specifics:

The vendor is Esri (Environmental Systems Research Institute, Inc.), maker of the GIS software (ArcGIS) currently in use at the City. ArcGIS software is the industry standard in the U.S. and Esri’s position in the GIS software market can be compared to Microsoft’s dominance in office software applications. Using the same GIS software as other cities, counties, and businesses is efficient and allows the City to easily use, share, and obtain data from outside sources and facilitates collaboration.

Since there is no reasonable alternative to this software, City staff requested a quote from Esri for a new small government agreement. The terms are similar to our existing three-year agreement with Esri which expires in July of 2025. The agreement is for cities of similar population size to Morgan Hill and is called a “Small Government Enterprise Agreement” that allows the City to purchase licensing from Esri for a discounted, flat-rate yearly fee. It covers unlimited licensing of key core Esri products.

The agreement will be effective July 17, 2025 through July 16, 2028. The total cost of the agreement is $126,600 which is billed yearly at $42,200 per year. This is a 9% cost increase over our current agreement.

If the City were to purchase the licensing from Esri on an ad-hoc basis rather than through this agreement, the cost would be significantly greater. The agreement includes multiple products, including the ArcGIS Enterprise server license. The two server licenses alone would cost $99,000 for the first year and $24,750 for each subsequent year.

This is a standard Esri agreement that cannot be modified. The proposed agreement contains three components which are included as attachments:

1. Quotation- Esri uses this as the primary agreement

2. Small Enterprise Agreement- sets out the terms and contains the signature page

3. Master Agreement - referenced in the Small Enterprise Agreement, which sets out rights and restrictions of the desktop and web software Staff recommends Council approve this three-year agreement with Esri to continue City access to necessary GIS software.

COMMUNITY ENGAGEMENT:

GIS licensing is an internal function that supports City services provided by all City departments and no specific engagement activities were conducted.

ALTERNATIVE ACTIONS:

The City Council could choose not to move forward with the proposed agreement and direct staff to purchase its GIS software from Esri on an ad-hoc basis, which would be significantly more expensive.

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10 PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

On June 15, 2022, the City Council approved the current software licensing agreement with Esri.

FISCAL AND RESOURCE IMPACT:

The amount of $42,200 for the first year is included in the Adopted Budget for Fiscal Year 25-26, therefore no additional appropriations are required at this time. Funding for the subsequent two years will be requested in the GIS division's proposed budget for the next biennial budget.

CEQA (California Environmental Quality Act):

Not a Project
Since the resulting activity is software licensing that will not result in a change to the physical environment, this action is not a project under the California Environmental Quality Act.

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Quotation # Q-530986
Date: April 17, 2025
Environmental Systems Research Institute, Inc.
380 New York St
Redlands, CA 92373-8100
Phone: (909) 793-2853
DUNS Number: 06-313-4175 CAGE Code: 0AMS3
Customer # 391960 Contract #
City of Morgan Hill
GIS Dept
17575 Peak Ave
Morgan Hill, CA 95037-4128
To expedite your order, please attach a copy of ATTENTION: Pam van der Leeden this quotation to your purchase order. PHONE: (669) 253-4330 Quote is valid from: 2/18/2025 To: 5/19/2025 EMAIL: [email protected] Material Qty Term Unit Price Total
193205 1 Year 1 $42,200.00 $42,200.00
Populations of 25,001 to 50,000 Small Government Enterprise Agreement Annual Subscription 193205 1 Year 2 $42,200.00 $42,200.00
Populations of 25,001 to 50,000 Small Government Enterprise Agreement Annual Subscription 193205 1 Year 3 $42,200.00 $42,200.00
Populations of 25,001 to 50,000 Small Government Enterprise Agreement Annual Subscription Subtotal: $126,600.00
Sales Tax: $0.00
Estimated Shipping and Handling (2 Day Delivery): $0.00 Contract Price Adjust: $0.00
Total: $126,600.00
Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management, procurement, or invoice program.

For questions contact:

Michael Arias
Email:
[email protected]
Phone:
(909) 793-2853
The items on this quotation are subject to and governed by the terms of this quotation, the most current product specific scope of use document found at https://assets.esri.com/content/dam/esrisites/media/legal/product-specific-terms-of-use/e300.pdf, and your applicable signed agreement with Esri. If no such agreement covers any item quoted, then Esri’s standard terms and conditions found at https://go.esri.com/MAPS apply to your purchase of that item. If any item is quoted with a multi-year payment schedule, Esri may invoice at least 30 days in advance of each anniversary date without the issuance or a Purchase Order, and Customer is required to make all payments without right of cancellation. Third-party data sets included in a quotation as separately licensed items will only be provided and invoiced if Esri is able to provide such data and will be subject to the applicable third-party's terms and conditions. If Esri is unable to provide any such data set, Customer will not be responsible for any further payments for the data set. US Federal government entities and US government prime contractors authorized under FAR 51.1 may purchase under the terms of Esri’s GSA Federal Supply Schedule. Supplemental terms and conditions found at https://www.esri.com/en-us/legal/terms/state-supplemental apply to some US state and local government purchases. All terms of this quotation will be incorporated into and become part of any additional agreement regarding Esri’s offerings. Acceptance of this quotation is limited to the terms of this quotation. Esri objects to and expressly rejects any different or additional terms contained in any purchase order, offer, or confirmation sent to or to be sent by buyer. Unless prohibited by law, the quotation information is confidential and may not be copied or released other than for the express purpose of system selection and purchase/license. The information may not be given to outside parties or used for any other purpose without consent from Esri. Delivery is FOB Origin for customers located in the USA.

ARIASM This offer is limited to the terms and conditions incorporated and attached herein. Page 201 of 813 Quotation # Q-530986
Date: April 17, 2025
Environmental Systems Research Institute, Inc.
380 New York St
Redlands, CA 92373-8100
Phone: (909) 793-2853
DUNS Number: 06-313-4175 CAGE Code: 0AMS3
Customer # 391960 Contract #
City of Morgan Hill
GIS Dept
17575 Peak Ave
Morgan Hill, CA 95037-4128
To expedite your order, please attach a copy of ATTENTION: Pam van der Leeden this quotation to your purchase order. PHONE: (669) 253-4330 Quote is valid from: 2/18/2025 To: 5/19/2025 EMAIL: [email protected] _________________________________________________________________________________________________________________________________ If you have made ANY alterations to the line items included in this quote and have chosen to sign the quote to indicate your acceptance, you must fax Esri the signed quote in its entirety in order for the quote to be accepted. You will be contacted by your Customer Service Representative if additional information is required to complete your request.

If your organization is a US Federal, state, or local government agency; an educational facility; or a company that will not pay an invoice without having issued a formal purchase order, a signed quotation will not be accepted unless it is accompanied by your purchase order.

In order to expedite processing, please reference the quotation number and any/all applicable Esri contract number(s) (e.g. MPA, ELA, SmartBuy, GSA, BPA) on your ordering document.

BY SIGNING BELOW, YOU CONFIRM THAT YOU ARE AUTHORIZED TO OBLIGATE FUNDS FOR YOUR ORGANIZATION, AND YOU ARE AUTHORIZING ESRI TO ISSUE AN INVOICE FOR THE ITEMS INCLUDED IN THE ABOVE QUOTE IN THE AMOUNT OF $___________, PLUS SALES TAXES IF APPLICABLE. DO NOT USE THIS FORM IF YOUR ORGANIZATION WILL NOT HONOR AND PAY ESRI'S INVOICE WITHOUT ADDITIONAL AUTHORIZING PAPERWORK.

Please check one of the following:
___ I agree to pay any applicable sales tax.
___ I am tax exempt, please contact me if exempt information is not currently on file with Esri. ___________________________________________ ________________________ Signature of Authorized Representative Date
___________________________________________
Name (Please Print)
___________________________________________
Title
_________________________________________________________________________________________________________________________________ The quotation information is proprietary and may not be copied or released other than for the express purpose of system selection and purchase/license. This information may not be given to outside parties or used for any other purpose without consent from Environmental Systems Research Institute, Inc. (Esri).

Any estimated sales and/or use tax reflected on this quote has been calculated as of the date of this quotation and is merely provided as a convenience for your organization's budgetary purposes. Esri reserves the right to adjust and collect sales and/or use tax at the actual date of invoicing. If your organization is tax exempt or pays state tax directly, then prior to invoicing, your organization must provide Esri with a copy of a current tax exemption certificate issued by your state's taxing authority for the given jurisdiction.

Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management, procurement, or invoice program.

For questions contact:

ARIASM This offer is limited to the terms and conditions incorporated and attached herein. Page 202 of 813 Esri Use Only:

Cust. Name
Cust. #
PO #
Esri Agreement #

Page 1 of 6 ends

SMALL ENTERPRISE AGREEMENT

COUNTY AND MUNICIPALITY GOVERNMENT
(E214-2)
This Agreement is by and between the organization identified in the Quotation (“Customer”) and Environmental Systems Research Institute, Inc. (“Esri”).

This Agreement sets forth the terms for Customer’s use of Products and incorporates by reference (i) the Quotation and (ii) the Master Agreement. Should there be any conflict between the terms and conditions of the documents that comprise this Agreement, the order of precedence for the documents shall be as follows: (i) the Quotation, (ii) this Agreement, and (iii) the Master Agreement. This Agreement shall be governed by and construed in accordance with the laws of the state in which Customer is located without reference to conflict of laws principles, and the United States of America federal law shall govern in matters of intellectual property. The modifications and additional rights granted in this Agreement apply only to the Products listed in Table A.

Table A
List of Products
Uncapped Quantities (annual subscription)
ArcGIS Enterprise Software and Extensions
ArcGIS Enterprise (Advanced and Standard)
ArcGIS Monitor
ArcGIS Enterprise Extensions: ArcGIS 3D Analyst, ArcGIS Spatial Analyst, ArcGIS Geostatistical Analyst, ArcGIS
Network Analyst, ArcGIS Data Reviewer
ArcGIS Enterprise Additional Capability Servers
ArcGIS Image Server
ArcGIS Online User Types
ArcGIS Online Viewer User Type
ArcGIS Enterprise User Types
ArcGIS Enterprise Viewer User Type
Capped Quantities (annual subscription)
ArcGIS Online User Types ArcGIS Enterprise User Types
ArcGIS Online Contributor User Type 10 ArcGIS Enterprise Contributor User Type 10 ArcGIS Online Mobile Worker User Type 35 ArcGIS Enterprise Mobile Worker User Type 35 ArcGIS Online Creator User Type 35 ArcGIS Enterprise Creator User Type 35 ArcGIS Online Professional User Type 10 ArcGIS Enterprise Professional User Type 10 ArcGIS Online Professional Plus User Type 10 ArcGIS Enterprise Professional Plus User Type 10 ArcGIS Pro (Add-on Apps) for ArcGIS Online Creator or
Professional User Type
ArcGIS Pro (Add-on Apps) for ArcGIS Enterprise
Creator or Professional User Type
ArcGIS 3D Analyst, ArcGIS Data Reviewer,
ArcGIS Geostatistical Analyst, ArcGIS Network
Analyst, ArcGIS Publisher, ArcGIS Spatial
Analyst, ArcGIS Workflow Manager, ArcGIS
Image Analyst
10 each
ArcGIS 3D Analyst, ArcGIS Data Reviewer,
ArcGIS Geostatistical Analyst, ArcGIS Network
Analyst, ArcGIS Publisher, ArcGIS Spatial
Analyst, ArcGIS Workflow Manager, ArcGIS
Image Analyst
10 each
ArcGIS Online Apps and Other ArcGIS Enterprise Apps and Other ArcGIS Location Sharing for ArcGIS Online 10 ArcGIS Location Sharing for ArcGIS Enterprise 10 ArcGIS Online Service Credits 25,000 ArcGIS Advanced Editing User Type Extension for ArcGIS Enterprise 10
Other Benefits
Number of Esri User Conference registrations provided annually 3 Number of Tier 1 Help Desk individuals authorized to call Esri 3 Five percent (5%) discount on all individual commercially available instructor-led training classes at Esri facilities purchased outside this Agreement

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Customer may accept this Agreement by signing and returning the whole Agreement with (i) the Quotation attached, (ii) a purchase order, or (iii) another document that matches the Quotation and references this Agreement (“Ordering Document”). ADDITIONAL OR CONFLICTING TERMS IN CUSTOMER’S PURCHASE

ORDER OR OTHER DOCUMENT WILL NOT APPLY, AND THE TERMS OF THIS AGREEMENT WILL GOVERN. This Agreement is effective as of the date of Esri’s receipt of an Ordering Document, unless otherwise agreed to by the parties (“Effective Date”).

Term of Agreement: Three (3) years
This Agreement supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to the licensing of the Products. Except as provided in Article 4— Product Updates, no modifications can be made to this Agreement.

Accepted and Agreed:
(Customer)
By:

Authorized Signature
Printed Name:

Title:

Date:

CUSTOMER CONTACT INFORMATION
Contact: Telephone:

Address: Fax:

City, State, Postal Code: E-mail:

Country:

Quotation Number (if applicable):

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1.0—ADDITIONAL DEFINITIONS
In addition to the definitions provided in the Master
Agreement, the following definitions apply to this
Agreement:
“Case” means a failure of the Software or Online
Services to operate according to the Documentation
where such failure substantially impacts operational
or functional performance.
“Deploy”, “Deployed” and “Deployment” mean to
redistribute and install the Products and related
Authorization Codes within Customer’s
organization(s).
“Fee” means the fee set forth in the Quotation.
“Maintenance” means Tier 2 Support, Product
updates, and Product patches provided to Customer
during the Term of Agreement.
“Master Agreement” means the applicable master
agreement for Esri Products incorporated by this
reference that is (i) found at https://www.esri.com/enus/legal/terms/full-master-agreement and available in the installation process requiring acceptance by
electronic acknowledgment or (ii) a signed Esri
master agreement or license agreement that
supersedes such electronically acknowledged
master agreement.
“Product(s)” means the products identified in
Table A—List of Products and any updates to the list
Esri provides in writing.
“Quotation” means the offer letter and quotation
provided separately to Customer.
“Technical Support” means the technical
assistance for attempting resolution of a reported
Case through error correction, patches, hot fixes,
workarounds, replacement deliveries, or any other
type of Product corrections or modifications.
“Tier 1 Help Desk” means Customer’s point of
contact(s) to provide all Tier 1 Support within
Customer’s organization(s).
“Tier 1 Support” means the Technical Support
provided by the Tier 1 Help Desk.
“Tier 2 Support” means the Esri Technical Support
provided to the Tier 1 Help Desk when a Case
cannot be resolved through Tier 1 Support.

2.0—ADDITIONAL GRANT OF LICENSE

2.1 Grant of License. Subject to the terms and
conditions of this Agreement, Esri grants to
Customer a personal, nonexclusive,
nontransferable license solely to use, copy, and
Deploy quantities of the Products listed in
Table A—List of Products for the Term of
Agreement (i) for the applicable Fee and (ii) in
accordance with the Master Agreement.

2.2 Consultant Access. Esri grants Customer the
right to permit Customer’s consultants or
contractors to use the Products exclusively for
Customer’s benefit. Customer will be solely
responsible for compliance by consultants and
contractors with this Agreement and will ensure
that the consultant or contractor discontinues
use of Products upon completion of work for
Customer. Access to or use of Products by
consultants or contractors not exclusively for
Customer’s benefit is prohibited. Customer may
not permit its consultants or contractors to install
Software or Data on consultant, contractor, or
third-party computers or remove Software or
Data from Customer locations, except for the
purpose of hosting the Software or Data on
Contractor servers for the benefit of Customer.

3.0—TERM, TERMINATION, AND EXPIRATION

3.1 Term. This Agreement and all licenses
hereunder will commence on the Effective Date
and continue for the duration identified in the
Term of Agreement, unless this Agreement is
terminated earlier as provided herein. Customer
is only authorized to use Products during the
Term of Agreement. For an Agreement with a
limited term, Esri does not grant Customer an
indefinite or a perpetual license to Products.

3.2 No Use upon Agreement Expiration or
Termination. All Product licenses, all
Maintenance, and Esri User Conference
registrations terminate upon expiration or
termination of this Agreement.

3.3 Termination for a Material Breach. Either party
may terminate this Agreement for a material
breach by the other party. The breaching party
will have thirty (30) days from the date of written
notice to cure any material breach.

3.4 Termination for Lack of Funds. For an
Agreement with government or governmentPage 205 of 813

Page 4 of 6 ends

owned entities, either party may terminate this
Agreement before any subsequent year if
Customer is unable to secure funding through
the legislative or governing body’s approval
process.

3.5 Follow-on Term. If the parties enter into
another agreement substantially similar to this
Agreement for an additional term, the effective
date of the follow-on agreement will be the day
after the expiration date of this Agreement.

4.0—PRODUCT UPDATES

4.1 Future Updates. Esri reserves the right to
update the list of Products in Table A—List of
Products by providing written notice to
Customer. Customer may continue to use all
Products that have been Deployed, but support
and upgrades for deleted items may not be
available. As new Products are incorporated into
the standard program, they will be offered to
Customer via written notice for incorporation into
the Products schedule at no additional charge.

Customer’s use of new or updated Products
requires Customer to adhere to applicable
additional or revised terms and conditions in the
Master Agreement.

4.2 Product Life Cycle. During the Term of
Agreement, some Products may be retired or
may no longer be available to Deploy in the
identified quantities. Maintenance will be subject
to the individual Product Life Cycle Support
Status and Product Life Cycle Support Policy,
which can be found at
https://support.esri.com/en/otherresources/product-life-cycle. Updates for Products in the mature and retired phases may
not be available. Customer may continue to use
Products already Deployed, but Customer will
not be able to Deploy retired Products.

5.0—MAINTENANCE
The Fee includes standard maintenance benefits
during the Term of Agreement as specified in the
most current applicable Esri Maintenance and
Support Program document (found at
https://www.esri.com/enus/legal/terms/maintenance). At Esri’s sole discretion, Esri may make patches, hot fixes, or
updates available for download. No Software other
than the defined Products will receive Maintenance.

Customer may acquire maintenance for other
Software outside this Agreement.
a. Tier 1 Support

1. Customer will provide Tier 1 Support
through the Tier 1 Help Desk to all
Customer’s authorized users.

2. The Tier 1 Help Desk will be fully trained in
the Products.

3. At a minimum, Tier 1 Support will include
those activities that assist the user in
resolving how-to and operational questions
as well as questions on installation and
troubleshooting procedures.

4. The Tier 1 Help Desk will be the initial point
of contact for all questions and reporting of a
Case. The Tier 1 Help Desk will obtain a full
description of each reported Case and the
system configuration from the user. This
may include obtaining any customizations,
code samples, or data involved in the Case.

5. If the Tier 1 Help Desk cannot resolve the
Case, an authorized Tier 1 Help Desk
individual may contact Tier 2 Support. The
Tier 1 Help Desk will provide support in such
a way as to minimize repeat calls and make
solutions to problems available to
Customer’s organization.

6. Tier 1 Help Desk individuals are the only
individuals authorized to contact Tier 2
Support. Customer may change the Tier 1
Help Desk individuals by written notice to
Esri.
b. Tier 2 Support

1. Tier 2 Support will log the calls received
from Tier 1 Help Desk.

2. Tier 2 Support will review all information
collected by and received from the Tier 1
Help Desk including preliminary documented
troubleshooting provided by the Tier 1 Help
Desk when Tier 2 Support is required.

3. Tier 2 Support may request that Tier 1 Help
Desk individuals provide verification of
information, additional information, or
answers to additional questions to

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supplement any preliminary information
gathering or troubleshooting performed by
Tier 1 Help Desk.

4. Tier 2 Support will attempt to resolve the
Case submitted by Tier 1 Help Desk.

5. When the Case is resolved, Tier 2 Support
will communicate the information to Tier 1
Help Desk, and Tier 1 Help Desk will
disseminate the resolution to the user(s).

6.0—ENDORSEMENT AND PUBLICITY
This Agreement will not be construed or interpreted
as an exclusive dealings agreement or Customer’s
endorsement of Products. Either party may publicize
the existence of this Agreement.

7.0—ADMINISTRATIVE REQUIREMENTS

7.1 OEM Licenses. Under Esri’s OEM or Solution
OEM programs, OEM partners are authorized to
embed or bundle portions of Esri products and
services with their application or service. OEM
partners’ business model, licensing terms and
conditions, and pricing are independent of this
Agreement. Customer will not seek any discount
from the OEM partner or Esri based on the
availability of Products under this Agreement.

Customer will not decouple Esri products or
services from the OEM partners’ application or
service.

7.2 Annual Report of Deployments. At each
anniversary date and ninety (90) calendar days
prior to the expiration of this Agreement,
Customer will provide Esri with a written report
detailing all Deployments. Upon request,
Customer will provide records sufficient to verify
the accuracy of the annual report.

8.0—ORDERING, ADMINISTRATIVE

PROCEDURES, DELIVERY, AND

DEPLOYMENT

8.1 Orders, Delivery, and Deployment
a. Upon the Effective Date, Esri will invoice
Customer and provide Authorization Codes to
activate the nondestructive copy protection
program that enables Customer to download,
operate, or allow access to the Products. If this
is a multi-year Agreement, Esri may invoice the
Fee up to thirty (30) calendar days before the
annual anniversary date for each year.
b. Undisputed invoices will be due and payable
within thirty (30) calendar days from the date of
invoice. Esri reserves the right to suspend
Customer’s access to and use of Products if
Customer fails to pay any undisputed amount
owed on or before its due date. Esri may charge
Customer interest at a monthly rate equal to the
lesser of one percent (1.0%) per month or the
maximum rate permitted by applicable law on
any overdue fees plus all expenses of collection
for any overdue balance that remains unpaid
ten (10) days after Esri has notified Customer of
the past-due balance.
c. Esri’s federal ID number is 95-2775-732.
d. If requested, Esri will ship backup media to the
ship-to address identified on the Ordering
Document, FOB Destination, with shipping
charges prepaid. Customer acknowledges that
should sales or use taxes become due as a
result of any shipments of tangible media, Esri
has a right to invoice and Customer will pay any
such sales or use tax associated with the receipt
of tangible media.

8.2 Order Requirements. Esri does not require
Customer to issue a purchase order. Customer
may submit a purchase order in accordance with
its own process requirements, provided that if
Customer issues a purchase order, Customer
will submit its initial purchase order on the
Effective Date. If this is a multi-year Agreement,
Customer will submit subsequent purchase
orders to Esri at least thirty (30) calendar days
before the annual anniversary date for each
year.
a. All orders pertaining to this Agreement will be
processed through Customer’s centralized point
of contact.
b. The following information will be included in
each Ordering Document:
(1) Customer name; Esri customer number, if
known; and bill-to and ship-to addresses
(2) Order number
(3) Applicable annual payment due

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9.0—MERGERS, ACQUISITIONS, OR

DIVESTITURES
If Customer is a commercial entity, Customer will
notify Esri in writing in the event of (i) a
consolidation, merger, or reorganization of Customer
with or into another corporation or entity;
(ii) Customer’s acquisition of another entity; or (iii) a transfer or sale of all or part of Customer’s
organization (subsections i, ii, and iii, collectively
referred to as “Ownership Change”). There will be
no decrease in Fee as a result of any Ownership
Change.

9.1 If an Ownership Change increases the
cumulative program count beyond the maximum
level for this Agreement, Esri reserves the right
to increase the Fee or terminate this Agreement
and the parties will negotiate a new agreement.

9.2 If an Ownership Change results in transfer or
sale of a portion of Customer’s organization, that
portion of Customer’s organization will transfer
the Products to Customer or uninstall, remove,
and destroy all copies of the Products.

9.3 This Agreement may not be assigned to a
successor entity as a result of an Ownership
Change unless approved by Esri in writing in
advance. If the assignment to the new entity is
not approved, Customer will require any
successor entity to uninstall, remove, and
destroy the Products. This Agreement will
terminate upon such Ownership Change.

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Master Agreement
Products and Services
E204-Legal

Page 1 of 24 ends

Revised February 14, 2025
IMPORTANT—READ CAREFULLY
Unless superseded by a signed license agreement between you and Esri, Esri is willing to provide Esri Offerings and Services to you only if you accept all terms and conditions contained in this Agreement as the sole and final agreement of the parties regarding your acquisition of these Esri Offerings and Services. Please read the terms and conditions carefully. You may not use the Esri Offerings unless you agree to the terms and conditions of the Agreement. Your access and use of Esri Offerings, or Services, constitutes your acceptance of the terms and conditions of this Agreement. If you do not agree, contact your local sales representative prior to making your purchase.

This Master Agreement (“Agreement”) is between you (“Customer”) and Environmental Systems Research Institute, Inc. (“Esri”), a California corporation with a place of business at 380 New York Street, Redlands, California 92373-8100 USA.

Attachment A contains definitions of capitalized terms used throughout this Agreement. Each section of this Agreement may include additional definitions that are used exclusively within that section.

1.0 GENERAL GRANT OF RIGHTS AND RESTRICTIONS

1.1 Grant of Rights. In consideration of Customer’s payment of all applicable fees and in accordance with this Agreement, Esri
a. Provides Services as set forth in this Agreement;
b. Grants to Customer a nonexclusive, nontransferable right and license or subscription to access and use Esri Offerings as set forth in the Specifications and applicable Ordering Documents; and c. Authorizes Customer to copy and make derivative works of the Documentation for Customer’s own internal use in conjunction with Customer’s authorized use of Esri Offerings. Customer will include the following copyright attribution notice acknowledging the proprietary rights of Esri and its licensors in any derivative work:
“Portions of this document include intellectual property of Esri and its licensors and are used under license.

Copyright © [Customer will insert the actual copyright date(s) from the source materials.] Esri and its licensors. All rights reserved.”
The grants of rights in this section (i) continue for the duration of the subscription or applicable Term or perpetually if no Term is applicable or identified in the Ordering Documents and (ii) are subject to additional rights and restrictions in this Agreement including Attachment B.

1.2 Consultant or Contractor Access. Customer may authorize its consultants or contractors to (i) host Esri Offerings for Customer’s benefit and (ii) use Esri Offerings exclusively for Customer’s benefit. Customer will be solely responsible for its consultants’ and contractors’ compliance with this Agreement and will ensure that each consultant or contractor discontinues use of Esri Offerings upon completion of work for Customer. Access to or use of Esri Offerings by consultants or contractors that is not exclusively for Customer’s benefit is prohibited.

1.3 Reservation of Rights. All Esri Offerings are the copyrighted works of Esri or its licensors; all rights not specifically granted in this Agreement are reserved.

1.4 Customer Content. Esri does not acquire any rights in Customer Content under this Agreement other than as needed to provide Esri Offerings and Services to Customer.

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E204-Legal

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2.0 SOFTWARE AND ONLINE SERVICES

2.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. “Anonymous Users” means all who have public access (i.e., without having to provide a Named User Credential) to any part of Customer Content or Customer’s Value-Added Applications. b. “App Login Credential(s)” means a system-generated application login and associated password, provided when registering a Value-Added Application with Online Services, which when embedded in a Value-Added Application allows the Value-Added Application to access and use Online Services. c. “Commercial App Deployment License” means a license to distribute Value-Added Applications to third parties for a fee.
d. “Concurrent Use License” means a license to install and use Software on computer(s) on a network, provided that the number of simultaneous users may not exceed the number of licenses acquired. A Concurrent Use License includes the right to run passive failover instances of Concurrent Use License management software in a separate operating system environment for temporary failover support. e. “Deployment License” means a license to incorporate ArcGIS Runtime components in Value-Added Applications and distribute Value-Added Applications to Customer’s end users. f. “Deployment Server License” means a license to use Software under a Server License for all uses permitted in this Agreement and as described in the Documentation. g. “Development Server License” means a license to use Software under a Server License only to build and test Value-Added Applications as described in the Documentation. h. “Development Use” means the right to install and use Products to build and test Value-Added Applications as described in the Documentation.
i. “Failover License” means a license to install Software on redundant systems for failover operations, but the redundantly installed Software may be operational only during the period the primary site is nonoperational.

Except for system maintenance and updating of databases, the redundant Software installation(s) will remain dormant while the primary site (or any other redundant site) is operational. j. “Named User(s)” is Customer’s employee, agent, consultant, or contractor to whom Customer has assigned a unique, secure login credential (identity) enabling access to a Product that requires such identity in order to access identity-managed capabilities within a Product for Customer’s exclusive benefit. For educational use, Named Users may include registered students.
k. “Named User Credential(s)” means an individual person’s login and associated password enabling that person to access and use Products.
l. “Named User License” means the right for a single Named User to use a specific Esri Offering. m. “Online Services Subscription” means a limited-term subscription conveying the right for one or more Named Users to access and use Online Services.
n. “Redistribution License” means a license to reproduce and distribute Software provided that

1. Customer reproduces and distributes the Software in its entirety;

2. A license agreement that protects the Software to the same extent as this Agreement accompanies each copy of the Software, and the recipient agrees to the terms and conditions of the license agreement;

3. Customer reproduces all copyright and trademark attributions and notices; and

4. Customer does not charge a fee to others for the use of the Software. o. “Server License” means a license to install and use Software on any computer being used as a server.

Server Licenses may be subject to a limited number of server cores or distributed deployment on multiple servers as described in the Ordering Documents or Documentation. If the Software description includes failover use rights, each Server License includes a Failover License. p. “Sharing Tools” means publishing capabilities included with Customer’s authorized use of Online Services or ArcGIS Enterprise that allow Customer to make Customer Content and Value-Added Applications available to third parties or Anonymous Users.
q. “Single Use License” means a license for a single authorized end user to install and use Software on a single computer. The single authorized end user may also install a second copy for the end user’s exclusive use on a second computer as long as only 1 copy of Software is in use at any time. No other end user may use Software under the same license at the same time for any other purpose.

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r. “Staging Server License” means a license to use Software under a Server License to build and test ValueAdded Applications and map caches; conduct user acceptance, performance, and load testing of other thirdparty software; stage new commercial data updates; and conduct training activities as described in the Documentation. Customer may use Value-Added Applications and map caches with Development and Deployment Server Licenses.

2.2 License and Subscription Types. Esri provides Products under one or more of the license or subscription types identified in the definitions above. The Documentation and Ordering Documents identify which license or subscription type(s) applies to the ordered Products.

2.3 Software Terms of Use.
a. Customer may

1. Install, access, or store Software and Data on electronic storage device(s);

2. Make archival copies and routine computer backups;

3. Install and use a newer version of Software concurrently with the version to be replaced during a reasonable transition period not to exceed 6 months, provided that the deployment of either version does not exceed Customer’s licensed quantity; thereafter, Customer will not use more Software in the aggregate than Customer’s total licensed quantity. This concurrent use right does not apply to Software licensed for Development Use;

4. Move Software in the licensed configuration to a replacement computer;

5. Distribute Software and any associated Authorization Codes required for use of a Deployment License to third parties; and

6. Governmental or not-for-profit organizations that operate a website or offer Internet services may use server Software for revenue-generating purposes on a cost-recovery basis and not for profit. b. Customer may customize Software using any macro or scripting language, APIs, or source or object code libraries but only to the extent that such customization is described in the Documentation. c. Customer may use all fonts provided with Software for any authorized use of the Software. Customer may also use Esri fonts separately to print any output created by the Software. Any use restrictions for third-party fonts included with the Software are set forth in the font file itself. d. Esri publishes Product-Specific Terms of Use at https://www.esri.com/legal/scope-of-use.

2.4 Online Services Terms of Use.
a. Online Services Descriptions. Esri publishes Product-Specific Terms of Use at https://www.esri.com/legal/scope-of-use. Use of Online Services is also subject to the Cloud Services terms found in Attachment B.
b. Modifications of Online Services. Esri may change Online Services and associated APIs at any time, subject to 30 days’ notice of material changes and 90 days’ notice for deprecations. If any modification, discontinuation, or deprecation of Online Services causes a material, adverse impact to Customer’s operations, Esri may, at its discretion, attempt to repair, correct, or provide a workaround for Online Services.

If a viable solution is not commercially reasonable, Customer may cancel its subscription to Online Services, and when applicable, Esri will issue a prorated refund. c. Sharing Customer Content. Sharing Customer Content using Sharing Tools enables third parties to use, store, cache, copy, reproduce, (re)distribute, and (re)transmit Customer Content through Online Services. Esri is not responsible for any loss, deletion, modification, or disclosure of Customer Content resulting from use or misuse of Sharing Tools. Customer’s use of Sharing Tools is at Customer’s sole risk.

2.5 Named User Licenses. Except as expressly set forth in this Agreement, the following terms apply to Software and Online Services for which Customer acquires Named User Licenses. a. Named Users.

1. Named User login credentials are for designated users only and may not be shared with other individuals.

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2. Customer may reassign a Named User License to another user if the former user no longer requires access to the Software or Online Services.

3. Customer may not add third parties as Named Users, other than third parties included within the definition of Named Users.
b. Anonymous Users. Anonymous Users may only access Software or Online Services through Value-Added Applications that provide access to services or Content, that has been published for shared access through the use of Sharing Tools.

2.6 Value-Added Applications.

1. Customer is responsible for the development, operation, and technical support of Customer Content and Value-Added Applications.

2. Customer may not embed a Named User Credential into Value-Added Applications. Value-Added Applications that enable access to Customer Content that is not publicly shared through the use of Sharing Tools must require individual users to log in to the application(s) with their unique Named User login credentials.

3. Customer may embed an App Login Credential into Value-Added Applications that provide access by Anonymous Users to services or Content, that has been published for shared access by Anonymous Users through the use of Sharing Tools.

4. Customer may not embed an App Login Credential into Value-Added Applications that enables access to Customer Content that is not publicly shared through the use of Sharing Tools. Value-Added Applications that enable access to Customer Content that is not publicly shared through the use of Sharing Tools must require individual users to log in to the application(s) with their unique Named User login credentials.

5. Customer may not provide a third party, other than third parties included within the definition of Named Users, with access to Software or Online Services, other than through Customer’s Value-Added Application(s).

6. Customer may transfer Value-Added Applications to any third party for use in conjunction with the third party’s own Software license or Online Services Subscription.

2.7 Limited-Use Programs.
a. Trial, Evaluation, and Beta Programs. Products acquired under a trial, evaluation, or Beta program are licensed for evaluation and testing purposes only and not for commercial use. Any such use is at Customer’s own risk, and the Products do not qualify for Maintenance. If Customer does not convert to a purchased license or subscription prior to the expiration of the trial, evaluation, or Beta license, Customer may lose any Customer Content and customizations made during the license term. If Customer does not wish to purchase a license or subscription, Customer should export such Customer Content before the license expires. b. Educational Programs. Customer agrees to use Products provided under an educational program solely for educational purposes during the educational use Term. Customer shall not use Products for any Administrative Use unless Customer has acquired an Administrative Use license. “Administrative Use” means administrative activities that are not directly related to instruction or education, such as asset mapping, facilities management, demographic analysis, routing, campus safety, and accessibility analysis. Customer shall not use Products for revenue-generating or for-profit purposes. c. Grant Programs. Customer may use Products provided under a grant program for noncommercial purposes only. Except for cost recovery of using and operating the Products, Customer shall not use Products for revenue-generating or for-profit purposes.
d. Other Esri Limited-Use Programs. If Customer acquires Products under any limited-use program not listed above, Customer’s use of the Products may be subject to the terms set forth in the applicable launching page or enrollment form or as described on Esri’s website in addition to the nonconflicting terms of this Agreement.

3.0 DATA

3.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. “Business Listing Data” means any dataset that includes a list of businesses and may include other associated business attributes.

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b. “Esri Content Package(s)” means a digital file containing Online Services basemap Data extracted from the Online Services.
c. “Street Data” means Data that includes or depicts information about roads, streets, and related features.

3.2 Permitted Uses.
a. Unless otherwise authorized in writing, Customer may only use Data with the Products for which Esri has provided the Data.
b. Subject to the restrictions set forth in this Agreement and provided that Customer affixes an attribution statement to the Data representations acknowledging Esri or its applicable licensor(s) as the source of the portion(s) of the Data used for the Data representation, Customer may:

1. Create representations of Data in hard-copy or static, electronic format (e.g., PDF, GIF, JPEG, HTML); in ArcGIS Web Maps; or in Esri Story Maps apps for the purposes of visualizing Data (including basic interactions such as panning, zooming, and identifying map features with simple pop-ups); and

2. Use and include such representations of Data in presentation packages, marketing studies, or other reports or documents containing map images or data summaries derived from the use of Esri Products to third parties.
c. Customer may take Online Services basemaps offline through Esri Content Packages and subsequently deliver (transfer) them to any device for use with licensed ArcGIS Runtime applications and ArcGIS Desktop.

Customer may not otherwise scrape, download, or store Data. d. Customer may make any internal use of geocoded results that are obtained and stored in compliance with this Agreement. Customer may not redistribute geocoded results except to (i) use and/or display on a map in connection with Customer’s public, non-revenue generating website(s), (ii) permit access to third-parties for the purposes of Customer’s business, or (iii) deliver to third parties, on a noncommercial/non-revenue generating basis, static results, static output or static base map renderings.

3.3 Use Restrictions.
a. Customer may not act directly or authorize its customers to cobrand Data, use Data in any unauthorized service or product, or offer Data through or on behalf of any third party. b. Customer may not use or allow third parties to use Data, for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from compilation of information that is sold, rented, published, furnished, or in any manner provided to a third party.
c. Business Listing Data. Unless authorized in writing, Customer may not use Business Listing Data for any direct marketing purposes, resale publication, or distribution to any third party as part of any mailing list, directory, classified advertising, or other compilation of information. d. Street Data. Customer may use Street Data for mapping, geocoding, routing, and transportation network analysis purposes. Unless otherwise authorized in writing, Customer may not use Street Data for

1. Real-time navigational guidance, including alerting a user about upcoming maneuvers, such as warning of an upcoming turn or calculating an alternate route if a turn is missed;

2. Synchronized multivehicle routing; or

3. Synchronized route optimization.
e. Business Analyst Data. Customer may cache Data provided with ArcGIS Business Analyst Mobile App on a mobile device for use in conjunction with its use of ArcGIS Business Analyst Server. Customer may not otherwise cache or download such Data.
f. Partial Dataset Licenses: If Customer orders a subset of a dataset (e.g., a country, region, state, or local portion of a global database), Customer may use only the licensed subset, not any other portion of the full dataset.
g. Michael Bauer Research International Boundaries Data (“MBR Data”). Customer’s right to use data downloaded to Customer’s premises (e.g., MBR Data stored in ArcGIS Enterprise, ArcGIS Desktop) terminates 2 years after download.

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3.4 Supplemental Terms and Conditions for Data. Certain Data licensors require Esri to flow down additional attribution requirements and terms of use to Customer. These terms supplement and amend the terms of this Agreement and are available at www.esri.com/legal/third-party-data.

4.0 MAINTENANCE

4.1 US Customers. Esri will provide Maintenance for Software and Online Services in accordance with the Esri Maintenance and Support Program and this Agreement if Customer is in the United States.

4.2 Customers outside the United States. Customer may obtain maintenance services from their local Esri authorized distributor under the authorized distributor’s own standard support policy and in accordance with the Esri Product Life Cycle Support Policy.

5.0 PROFESSIONAL SERVICES

5.1 Definition. The following definition supplement the definitions provided in Attachment A:
a. “Professional Service Package(s)” means a predefined unit of Professional Services, provided at a firm fixed price.

5.2 Permitted Uses. Customer may use, copy, and modify Deliverables solely in conjunction with Customer’s authorized use of Products.

5.3 Task Orders and Project Schedule.
a. Esri will provide Professional Services and Deliverables as specified in the Task Order. b. Each Task Order will reference this Agreement and specify the commencement date and, if known, the period of performance.
c. Task Orders may have the format shown in Attachment C or any other agreed-upon format. d. Each party will identify, in writing, the project manager who is responsible for Professional Services and Deliverables described in Task Orders. By written notice to the other party’s technical administrator, either party may replace the project manager at any time with a similarly qualified person. e. Other than pricing and descriptions of Professional Services to be performed, terms and conditions in a Task Order are not binding unless both parties have signed the Task Order. The terms of a signed Task Order take precedence over conflicting terms in this Agreement.

5.4 Ownership of Deliverables. Esri or its licensors own and retain ownership of Deliverables.

5.5 Acceptance.
a. For Firm Fixed Price Task Orders. Unless otherwise agreed to in the applicable Task Order, Customer will complete its acceptance review within 10 working days of receiving each Deliverable and classify the Deliverables as follows:

1. “DELIVERABLE ACCEPTED” means a Deliverable conforming to the applicable Task Order with no more than minor nonconformities.

2. “DELIVERABLE ACCEPTED WITH REWORK” means a Deliverable substantially conforming to the applicable Task Order but having a significant number of identified nonconformities and accepted subject to rework by Esri. Esri will rework the Deliverable for the identified nonconformities and resubmit it within 30 days. Customer will rerun its acceptance review for the nonconformities detected in the initial review within 10 working days of such resubmission and will reclassify the Deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED.

3. “DELIVERABLE REJECTED” means a Deliverable that fails to substantially conform to applicable Task Order(s). Esri will rework the Deliverable and resubmit it to Customer within 30 days, at which time Customer will have 10 working days to rerun its acceptance review and reclassify the deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED.

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Customer may not use any Deliverable in its business operations before acceptance as described in a.1 or a.2. If Customer does not notify Esri in writing within 10 working days after delivery that it has classified the Deliverable as ACCEPTED WITH REWORK or REJECTED in accordance with a.2 or a.3, or if Customer uses the Deliverable in its business operations, the Deliverable will be deemed, as of the first of either of these events to occur, to have been accepted.
b. For Task Orders with Professional Service Packages. Professional Services that Esri performs under Professional Service Packages will be deemed accepted unless Customer notifies Esri within 10 days after performance. Customer may purchase additional Professional Service Packages as needed to complete Customer’s work requirements.
c. For Time and Materials Task Orders. Professional Services are provided strictly on a time and materials basis subject to the Task Order not-to-exceed funding limit. The Professional Services provided will be deemed accepted and in compliance with the professional and technical standards of the software industry unless Customer notifies Esri within 10 days after performance. Deliverables produced under a time and materials Task Order are consulting hours only will not be subject to acceptance testing.

5.6 Warranty for Deliverables. Esri warrants to Customer that firm fixed price Deliverables materially comply with Specifications for a period of 90 days from acceptance, subject to the limitations and disclaimers of liability set forth in the “Limited Warranties and Disclaimers” section of Attachment B.

5.7 Changes. The parties may make changes within the general scope of a Task Order by mutual agreement. To document any agreed-to scope changes within the general scope of the Task Order that affects the cost or time required to provide a Deliverable, the parties will jointly sign a written amendment to the Task Order that includes an equitable adjustment in the price, schedule, or both.

5.8 Customer Termination for Convenience. Customer may terminate any Task Order at any time upon 30 days’ written notice to Esri and upon payment to Esri of all amounts due to date pursuant to this Agreement, including reasonable expenses incurred as a direct result of the termination and the pro rata contract price for the Task Orders affected.

5.9 Payment; Invoices.
a. For Firm Fixed Price Task Orders. Unless otherwise specified in a Task Order, Esri will prepare and submit monthly invoices based on the percentage of completion for each Deliverable as of the end of the preceding month. Upon acceptance of all Deliverables under a Task Order, the unpaid balance of the total Task Order value is due.
b. For Professional Service Packages. Esri will submit an invoice for Professional Service Packages on receipt of an agreed-upon Task Order. Esri may, at its sole discretion, stop work to avoid exceeding the total labor hours or number of days allotted in the applicable Professional Service Package description set forth in the applicable scope of work. Professional Service Packages expire if not used within 12 months of the Esri invoice date.
c. For Time and Materials Task Orders.

1. Esri will submit to Customer written monthly invoices to the Customer address provided in the Task Order. The invoices will include the payment due for work performed, including travel time, and any other direct costs (ODCs) incurred as authorized under a Task Order. The amount invoiced for labor will be equal to the number of hours expended during the previous month, multiplied by the applicable labor rates. Esri will invoice meals on a per diem basis in accordance with the full daily limits specified on the government Defense Travel website at https://www.defensetravel.dod.mil/site/perdiemCalc.cfm. Esri may escalate hourly labor rates for Services; any increase in the first 5 years will not exceed 5 percent per year. Esri will invoice ODCs, including travel-related expenses incurred, plus a 15 percent burden.

2. Esri may reallocate the budget between activities, labor categories, and ODCs as necessary to facilitate the work effort, provided the overall price is not exceeded. If Esri reaches the funded not-to-exceed Task Order value and the activities are not completed, Customer may increase the order funding to allow additional work to be performed, or Esri may stop work without further obligation or liability.

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5.10 System and Data Access. Each Task Order will specify any requirement for Customer to give Esri personnel access to Customer’s systems or data.

6.0 ESRI MANAGED CLOUD SERVICES

6.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. “Esri Managed Cloud Services Environment” means the hardware, Software, Data, and network platform that Esri or its third-party supplier provides as part of Esri Managed Cloud Services. b. “Hosting” means the business of housing and making accessible Customer Content via the Internet.

6.2 Provision of Esri Managed Cloud Services.
a. General Terms. Use of Esri Managed Cloud Services is subject to the Cloud Services terms found in Attachment B of this Agreement.
b. Requirements Planning. It is Customer’s responsibility to plan for and address with Esri changes to Customer’s requirements, such as the need for additional capacity, the update of an application or dataset, or increased level of system availability.
c. Compensation and Expenses. Esri will invoice Customer for the one-time setup fee upon Task Order execution. Thereafter, Esri will invoice Customer monthly for the Esri Managed Cloud Services to be provided the following month. Customer will pay invoices within 30 days of receipt. Customer is responsible for any shipping or temporary storage costs incurred during the delivery of Customer Content to Esri or removal of Customer Content from the Esri Managed Cloud Services Environment. This paragraph does not apply to Esri Managed Cloud Services provided under the Advantage Program (see the section entitled “Advantage Program” in this Agreement).
d. Risk of Loss. Risk of loss for all Customer Content shall at all times remain with Customer, and it is Customer’s sole responsibility to maintain regular backups of Customer Content. Risk of loss for the Esri Managed Cloud Services Environment shall at all times remain with Esri. e. Personally Identifiable Information. Prior to providing any Customer Content under this Agreement, Customer shall notify Esri if Customer Content includes personally identifiable information. f. Public Software. Customer may not use, and may not authorize its end users or contractors to combine or use any Esri Offerings with any software (including any underlying dependencies), documentation, or other material distributed under an open source or other similar licensing or distribution model that requires as a condition of such model that any component of the Esri Offering to be (1) disclosed or distributed in source code form, (2) made available free of charge to third parties, or (3) modifiable without restriction by third parties.
g. Monitoring. Customer will provide information and other materials related to its Customer Content as reasonably requested by Esri or its Hosting partner to verify Esri’s or Customer’s compliance with this Agreement. Esri or its Hosting partner, as applicable, may browse, index, or otherwise monitor the external interfaces of any Customer Content solely for the purpose of verifying compliance with this Agreement.

7.0 TRAINING

7.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. “Customer-Supplied Training Data” means any digital dataset(s) including, but not limited to, geographic vector data, coordinates, raster data reports, or associated tabular attributes supplied by Customer for use in training.
b. “Esri Academy LMS Integration Subscription” means an optional term-limited subscription to Esri Academy enabling a specific number of unique Customer student(s) access to Self-Paced E-Learning through the customer’s Learning Management System.
c. “Esri E-Learning Content (SCORM Format) License” means an optional term-limited license that provides Esri customers with Esri’s e-learning content in SCORM (Shareable Content Object Reference Model) format to import into their Learning Management System.
d. “Esri Mobile Lab” means a service in which Esri will deliver and set up a training environment at the Customer’s site for use in conjunction with scheduled Esri Training Events only. The Esri Mobile Lab will

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include certain hardware, software, power cords, and network switches necessary for the instructor to set up the environment.
e. “Esri Training Event(s)” means an Esri site class, Esri instructor-led online class, a Customer site/private class, workshop, or coaching services.
f. “Esri Training Representative” means Customer’s primary Esri liaison in organizing private Esri Training Events.
g. “Student(s)” means a Customer employee or agent who is a registered participant in a specific Esri Training Event or Training-related services. If Customer is an individual, then Student means Customer. h. “Training Pass” means a nonrefundable, nontransferable block of prepaid training days with a fixed price per day throughout the Term of the Training Pass.
i. “Esri Mobile Router” means a service in which Esri will deliver and setup a mobile router at the Customer’s site for use in conjunction with a scheduled Esri Training Event only. The mobile router provides high-speed wireless internet access needed to run the Esri Training Event. j. “Learning Management System” or “LMS” shall mean third-party software acquired separately by Customer that allows Customer to consume E-Learning Content (SCORM Format) for the purpose of reserving it to the Customer’s internal employees.

7.2 Permitted and Prohibited Uses.
a. Esri provides Training Materials for Training purposes only and for the exclusive use of the Student who attends the Training course for which the Training Materials are provided. b. Customer may reproduce copies of Training Materials for registered Students. c. Customer may not and may not permit any Student to (i) separate the component parts of Training Materials for any use or (ii) use audio or video recording equipment during an Esri Training Event. d. Esri may issue temporary Product authorizations if Customer has an insufficient number of Products available for Training. Customer may use such Products as Training Materials under the terms of this Agreement.

Customer will uninstall all deployed Products and return any media provided by Esri upon conclusion of the Esri Training Event.
e. Customer will retain ownership of any Customer-Supplied Training Data.

7.3 Esri’s Responsibilities.

Esri will
a. Provide an instructor qualified to conduct Training; b. Provide all necessary Training Materials for Student; and c. Confirm Esri Training Events approximately 10 business days prior to the scheduled start date. Esri will only confirm Student registrations that include a payment method. Registrations without a confirmed payment method are placed on the reservation waiting list. All reservations on the waiting list are subject to availability.

Customer site/Private class and coaching services confirmation is also dependent on receipt of the completed Customer site training request form.

7.4 Customer’s Responsibilities.

Customer will
a. Ensure that all Students have received confirmation from Esri to participate in an Esri Training Event. Esri reserves the right to disconnect any Student who permits unregistered student access to an online classroom Esri Training Event. In such case, the full Esri Training Event fee will be invoiced and payable; b. Ensure that all Students meet the minimum prerequisites for the applicable Esri Training Event as listed on Esri’s training website;
c. Submit Student registrations with payment method information at least 15 business days before the scheduled start date;
d. Provide the Esri Training Representative with a list of names and email addresses of any Students who are to attend an Esri Training Event at least 3 business days before the scheduled start date, for compliance with

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the US embargoed country lists and the various US Government Lists of Parties of Concern or Specially Designated Nationals lists;
e. For classes held at the Customer-designated facility, complete a client-site training request form; consult with Esri personnel to determine classroom, computer, and network requirements; and provide all such required classrooms, computers, and network access;
f. Ensure that Student use of Training Materials provided by Esri complies with the terms of this Agreement; and g. Assume full liability and responsibility for Student attending Training course(s) under this Agreement. h. If the Esri Mobile Lab or Mobile Router is used, Customer will

1. Take delivery of the Esri Mobile Lab or Mobile Router from the shipping agent, and keep it in a secure, locked area at all times;

2. Immediately report any previously damaged Esri Mobile Lab or Mobile Router equipment to the Esri Training Representative upon receipt of the shipment; and

3. Be financially responsible for loss of, damage to, or theft of Esri Mobile Lab or Mobile Router equipment while in Customer’s possession.

7.5 Student Registration and Training Event Change Policy. a. Customer will provide advance written notice to Esri Customer Service at [email protected] to reschedule or cancel any Esri Training Event or to substitute a student in a scheduled Esri Training Event. b. A replacement Student must be from the same Customer organization as the Student being replaced. c. If Customer reschedules an Esri Training Event three or fewer days before the scheduled start date, Esri will charge Customer 50 percent of the fee plus the cost of the rescheduled Esri Training Event. d. If Customer (i) cancels an Esri Training Event 3 or fewer days before the scheduled start date without concurrently rescheduling or (ii) is absent without notice from the Esri Training Event, Customer will be liable for the full Esri Training Event fee.
e. If cancellation of an Esri Training Event is necessary due to causes beyond the party’s reasonable control, the affected party may reschedule or cancel the Esri Training Event without incurring any liability. f. Termination of Agreement. Students who are currently registered for an Esri Training Event as of the date of termination of this Agreement may attend the scheduled Esri Training Event, subject to the terms and conditions of this Agreement.

7.6 Invoicing; Prepaid Fees.
a. Esri will invoice Customer upon completion of the Esri Training Event or on purchase of a Training Pass. On Customer request, Esri will invoice in advance for an Esri Training Event. b. If Customer is invoiced and pays that invoice prior to the scheduled Esri Training Event, then Customer has 1 year from the date of the invoice to consume training days. For a multiyear order, training days must be consumed by the end date specified on the Esri quotation. Thereafter, all prepaid fees are forfeited. c. Training Pass policies and redemption rates are described at https://www.esri.com/training/training-fororganizations/.

This section 7.6 does not apply to Training provided under the Advantage Program.

7.7 Availability and General Provision of Wireless Service. a. Esri will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to wireless service interruptions or unavailability.

7.8 Esri E-Learning in the Customer’s Learning Management System. a. Esri E-Learning Content (SCORM format) License, specific terms of use incorporated by reference are found at https://www.esri.com/content/dam/esrisites/en-us/media/legal/scorm-lms/scorm-terms-and-conditions.pdf b. Esri Academy LMS Integration Subscription, specific terms of use incorporated by reference are found at https://www.esri.com/content/dam/esrisites/en-us/media/legal/scorm-lms/lms-terms-and-conditions.pdf

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8.0 ADVANTAGE PROGRAM

8.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. “Activity Description” means a mutually agreed upon written statement that confirms the number of Learning and Services Credits that Esri estimates is required to perform an activity and authorizes Esri to begin work based on such estimate. The Activity Description serves as the Task Order for Services provided under the Advantage Program.
b. “Advantage Program” means either Advantage Program, as described at www.esri.com/services/eeap/components, or the Advantage Program for Partners, as described at www.esri.com/partners/bpap/components.
c. “Authorized Contact” means Customer’s point of contact for the Advantage Program identified below. d. “Learning and Services Credits” means a contracted unit of exchange that Customer may use to acquire Professional Services, Training, PSS, Esri Managed Cloud Services, or related travel expenses as described below.
e. “Premium Support Services” or “PSS” means a prioritized incident management and technical support program further described at https://support.esri.com/en/support/premium. f. “Advisor” means an Esri consultant assigned to work with Customer to provide Professional Services such as advising Customer on GIS strategies, facilitating annual planning, and developing and coordinating a collaborative work plan under the Advantage Program.

8.2 Advantage Program Description. The Advantage Program is provided on an order-by-order, annual subscription basis and provides strategy and planning support in addition to a menu of items including Professional Services, Training, PSS, and Esri Managed Cloud Services that Customer can select to best meet its needs with guidance from Advisor. The Advantage Program may change from time to time. The Advantage Program includes the following:
a. Advisor. Customer will receive up to the number of Advisor hours ordered. Customer may elect to retain additional Advisor hours for a supplemental price.
b. Annual Planning Meeting. A 1-day annual planning meeting is included. c. Work Plan. A collaboratively developed document is designed to drive the program’s implementation through definition of Customer’s GIS vision, goals, and objectives. d. Learning and Services Credits. Customer will receive the number of Learning and Services Credits ordered.

Customer may use the credits toward any combination of Professional Services, Training, PSS, Esri Managed Cloud Services, or related travel expenses. Customer may order, for an additional price, additional Learning and Services Credits. Learning and Services Credits may be exchanged as described at the applicable Advantage Program website. Esri will provide a monthly report outlining usage of Learning and Services Credits to date to the Authorized Contact.
e. Technology Webcasts. Esri will provide an email invitation to the Authorized Contact for webcasts presenting business and technical information related to enterprise GIS. f. No Project Services. The Advantage Program is not designed for Esri to provide project-specific Professional Services such as custom application or database development for solutions or applications. Esri will not provide these types of Professional Services under the Advantage Program and does not warrant that Deliverables provided under an Advantage Program will comply with Specifications.

8.3 Authorized Contact Information. Customer identifies the following person as its initial Authorized Contact. (to be completed by Customer):

Contact Name:

Address:

City, State, ZIP:

Email:

Telephone:

Fax:

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8.4 Current on Maintenance. Customer must remain current on standard Software Maintenance during the Advantage Program term.

8.5 Authorization of Learning and Services Credits Use. Customer will contact its account manager or Advisor to consume Learning and Services Credits for a particular request. Esri will submit an Activity Description by email to Customer for confirmation and authorization to use Learning and Services Credits. Customer may authorize the consumption of Learning and Services Credits by submitting an email. Esri will begin work and deduct the estimated credit amount stated in the Activity Description from the unused Learning and Services Credits available.

8.6 Activity Descriptions for Esri Managed Cloud Services. The Activity Description for Esri Managed Cloud Services orders must include the following:
a. The Esri Managed Cloud Services Term. The time period in which Esri provides the Esri Managed Cloud Services to Customer. The Esri Managed Cloud Services term does not begin until setup and deployment of the data and application are complete.
b. Targeted System Availability. The minimum percentage of time that Customer has external access to the application and associated Customer Content through the Internet. Examples of supported levels of system availability are 95 percent, 99 percent, and 99.9 percent. Not all Esri Managed Cloud Services offerings include a Targeted System Availability.
c. Number of Anticipated Requests. A The number of requests made by an end user through a client (e.g., desktop computer, web application, mobile device) and sent to a server(s) that is set up in the Esri Managed Cloud Services Environment by Esri and performs computational tasks on behalf of the end user. An example of a common request used in a GIS is a map request. A map request is made every time a user pans, zooms, or queries a map service.
d. Amount of Data Storage. The storage capacity required to retain digital data, which is to be used and consumed in Customer GIS applications or Cloud Services. e. Learning and Services Credits Consumption. The price for the Esri Managed Cloud Services in Learning and Services Credits.

The Data storage location may be defined in the Activity Description.

8.7 Travel and Per Diem Expenses. Any Esri travel and per diem expenses will be quoted separately. Travel expenses will include a 15 percent burden, and meal per diem will be determined in accordance with the full daily limits specified on the government Defense Travel website at https://www.defensetravel.dod.mil/site/perdiemCalc.cfm. Customer will use Learning and Services Credits for travel and per diem expenses.

8.8 Notification of Consumed Credits. Esri will notify Customer if the authorized Learning and Services Credits are consumed prior to completion of the requested work. Customer may elect to direct the use of additional Learning and Services Credits, if available; procure additional Learning and Services Credits; or notify Esri to stop work on such requested work. Esri reserves the right to stop work if Customer has consumed all its Learning and Services Credits.

8.9 Review of Proposed Activities. Any activities proposed to be completed under the Advantage Program will be subject to Esri’s review and approval to ensure alignment with the intent of the program.

8.10 Invoicing.
a. Esri shall invoice Customer as quoted for the Advantage Program subscription, additional Learning and Services Credits, or Advisor services upon receipt of Customer’s order. Subsequently, Esri will invoice annually at least 30 days in advance of the Advantage Program subscription expiration date. Esri will extend the Advantage Program subscription for a subsequent annual term upon receipt of Customer’s payment of the renewal invoice. Esri will invoice fees for additional Learning and Services Credits or Advisor services upon receipt of Customer’s order.
b. Pricing for program renewals and new or additional Services will be in accordance with Esri’s standard pricing at the time of purchase or renewal.

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8.11 Termination and Expiration. Upon termination or expiration of an Advantage Program subscription:
a. Services will end as of the expiration or termination date stated; and b. Unless either party terminates the Advantage Program subscription for cause, Customer may apply any unused Learning and Services Credits toward any Professional Services, Training, PSS, or related travel expenses that are scheduled as of the termination or expiration date, provided that the Learning and Services Credits are used within 3 months after the termination or expiration date. Any other unused Learning and Services Credits will expire 30 days after the expiration or termination date; if Customer renews the Advantage Program subscription within this time period, any unused Learning and Services Credits will remain valid for up to 2 years from the purchase date or termination of this Agreement, whichever comes first.

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ATTACHMENT A

GLOSSARY OF TERMS
The following glossary of terms applies to all Esri Offerings and Services that Esri may provide to its customers.

Certain Esri Offerings or Services may not be within the scope of this Agreement. Please disregard any terms that are not applicable to Esri Offerings or Services offered under this Agreement. “Affiliate” means any entity that directly or indirectly (i) Controls; (ii) is Controlled by; or (iii) is under common Control with a party, where “Control” means having more than 50 percent of the voting stock or other voting interest in the Controlled entity.
“API” means application programming interface.
“ArcGIS Website” means www.arcgis.com and any related or successor websites. “Authorization Code(s)” means any key, authorization number, enablement code, login credential, activation code, token, user name and password, or other mechanism required for use of Esri Offerings. “Beta” means any alpha, beta, or other prerelease version of a Product. “Cloud Services” means Online Services and Esri Managed Cloud Services. “Content” means data, images, photographs, animations, video, audio, text, maps, databases, data models, spreadsheets, user interfaces, graphics components, icons, software, and other resources used in connection with Esri Offerings and Services.
“Control” means having more than 50 percent of the voting stock or other voting interest in the Controlled entity. “Customer Content” means any Content that Customer provides, uses, or develops in connection with Customer’s use of Esri Offerings or Services, including Value-Added Applications. Customer Content excludes any feedback, suggestions, or requests for improvements that Customer provides to Esri. “Data” means any commercially available digital dataset(s) including, but not limited to, geographic vector data, raster data reports, or associated tabular attributes that Esri bundles with other Esri Offerings or delivers independently.
“Deliverables” means anything that Esri delivers to Customer as a result of performance of Professional Services.
“Documentation” means all user reference documentation that Esri provides with a Deliverable or an Esri Offering.
“Esri Managed Cloud Services” means a Customer-specific cloud infrastructure, Software, Data, and network platform that Esri hosts, manages, and makes available to Customer or Customer’s end users via the Internet. “Esri Offering(s)” means any Product or Documentation. If Esri provides Training or Professional Services directly to Customer, then Esri Offerings also include Deliverables and Training Materials. Esri Offerings exclude Services and Third-Party Content.
“GIS” means geographic information system.
“Maintenance” means a subscription program that Esri provides and that entitles Customer to Product updates and other benefits such as access to technical support and self-paced, web-based learning resources.

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“Malicious Code” means software viruses; worms; time bombs; Trojan horses; or any other computer code, files, denial of service, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment.
“Online Services” means any commercially available, Internet-based geospatial system that Esri provides, including applications and associated APIs for storing, managing, publishing, and using maps, data, and other information. Online Services exclude Data and Content.
“Ordering Document(s)” means a sales quotation, Maintenance renewal quote, purchase order, proposal, Task Order, or other document identifying Esri Offerings, updates, or Services that Customer orders. “Perpetual License” means a license to use a version of the Esri Offering for which applicable license fees have been paid, indefinitely, unless terminated by Esri or Customer as authorized under this Agreement. “Product(s)” means Software, Data, and Online Services. “Professional Services” means any development or consulting services that Esri provides to Customer. “Sample(s)” means sample code, sample applications, add-ons, or sample extensions of Products. “Service(s)” means Maintenance. If Esri provides Esri Managed Cloud Services, Training, or Professional Services directly to Customer, then Services also include Esri Managed Cloud Services, Training, and Professional Services.
“Software” means any proprietary commercial off-the-shelf software, excluding Data, accessed or downloaded from an Esri-authorized website or that Esri delivers on any media in any format including backups, updates, service packs, patches, hot fixes, or permitted merged copies. “Specification(s)” means (i) the Documentation for Software and Online Services, (ii) the scope of work set forth in any Task Order, or (iii) Esri’s published course descriptions for Training. “Subscription” means a license for use of an Esri Offering for a limited time period or a right to receive Services for a limited time period.
“Task Order(s)” means an Ordering Document for Services. “Term License” means a license for use of an Esri Offering for a limited time period (“Term”). “Third-Party Content” means any Content that Customer may obtain from a third-party website or that persons other than Esri employees, suppliers, or contractors may directly contribute to Esri’s website. “Training” means (i) Product training or (ii) related training that Esri provides under this Agreement. “Training Materials” means digital or printed Content required to complete Training, which may include, but is not limited to, workbooks, data, concepts, exercises, assessments, and exams. “Value-Added Application(s)” means an application developed by Customer for use in conjunction with the authorized use of any Software, Data, or Online Services.

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ATTACHMENT B

GENERAL TERMS AND CONDITIONS
The following general terms and conditions apply to all Esri Offerings and Services that Esri may offer to its customers. Certain Esri Offerings or Services may not be available under this Agreement. Please disregard any terms that are not applicable to Esri Offerings or Services offered under this Agreement.

ARTICLE B.1—GENERAL USE RESTRICTIONS
Except as expressly permitted in this Agreement, Customer will not a. Sell, rent, lease, sublicense, distribute, lend, time-share, or assign Services or Esri Offerings; b. Distribute or provide direct access to Services or Esri Offerings to third parties, in whole or in part, including, but not limited to, extensions, components, or Dynamic Link Libraries; c. Distribute Authorization Codes to third parties;
d. Reverse engineer, decompile, or disassemble any Product or Deliverable delivered in compiled form; e. Make any attempt to circumvent the technological measure(s) that controls access to or use of Esri Offerings; f. Store, cache, use, upload, distribute, or sublicense Content or otherwise use Esri Offerings in violation of Esri’s or a third-party’s rights, including intellectual property rights, privacy rights, nondiscrimination laws, export laws, or any other applicable law or regulation; g. Remove or obscure any Esri or its licensors’ patent, copyright, trademark, proprietary rights notices, or legends contained in or affixed to any Esri Offerings, output, metadata file, or online or hard-copy attribution page of any Data or Documentation;
h. Unbundle or independently use individual or component parts of Esri Offerings; i. Incorporate any portion of Esri Offerings into a product or service for third-party use that competes with the Esri Offerings;
j. Publish or in any other way communicate the results of benchmark tests run on Beta Products without the prior written permission of Esri and its licensors; or
k. Use, incorporate, modify, distribute, provide access to, or combine any Esri Offerings in a manner that would subject any Esri Offering to open-source or open-database license terms (e.g. GPL) that require any part of the Esri Offering to be subject to additional terms, for example

1. Disclosed in source code form to third parties;

2. Licensed to third parties for the purpose of making derivative works; or

3. Redistributable to third parties at no charge; or
l. Generate revenue by providing access to Software or Online Services through a Value-Added Application.

These restrictions will not apply to the extent that they conflict with applicable law or regulation.

ARTICLE B.2—TERM AND TERMINATION
B.2.1 Customer may terminate this Agreement or any Esri Offerings license or subscription at any time upon written notice to Esri. Termination without cause does not entitle Customer to receive any refund of fees paid. Any right to terminate pending Services engagements for convenience is set forth in the applicable section in the body of this Agreement. Either party may terminate this Agreement or any license or subscription for a material breach that is not cured within 30 days of written notice to the breaching party. Upon any termination of this Agreement for breach, Esri will stop providing Services. Any licenses in Esri Offerings that survive termination of this Agreement continue under the terms of this Agreement.

B.2.2 If Esri terminates this Agreement following Customer’s breach, then Esri may also, at its election, terminate Customer’s licenses or subscriptions to Esri Offerings. If Customer terminates this Agreement for cause or convenience, then Customer may, at its election, also terminate Customer’s licenses or subscriptions to Esri Offerings.

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B.2.3 Upon any termination or expiration of a license or subscription, Customer will a. Stop accessing and using the terminated or expired Esri Offerings; b. Clear any client-side data cache derived from the terminated or expired Cloud Services; and c. Stop using and uninstall, remove, and destroy all copies of the terminated or expired Esri Offerings in Customer’s possession or control, including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to Esri or its authorized distributor.

Esri may stop performing Services immediately upon written notice to Customer if a bankruptcy or insolvency proceeding is commenced by or against Customer until the trustee cures any existing defaults and provides adequate assurance of future performance under this Agreement. This Agreement terminates upon the insolvency, liquidation, or dissolution of either party.

ARTICLE B.3—LIMITED WARRANTIES AND DISCLAIMERS
B.3.1 Limited Warranties. Except as disclaimed below, Esri warrants to Customer that (i) Products and Training will substantially comply with the applicable Specifications and (ii) Services will substantially conform to the professional and technical standards of the industry. The warranty period for Esri Offerings offered under a Perpetual License and for Services runs for 90 days from the date of delivery or from the date of acceptance if this Agreement provides an acceptance period. The warranty period for Esri Offerings offered under a subscription or Term License basis runs for the lesser of (i) the duration of the subscription or term or (ii) 90 days from delivery or acceptance if this Agreement provides an acceptance period.

B.3.2 Special Disclaimer. Third-Party Content; Data; Samples; hot fixes; patches; updates; Online Services provided at no charge; and trial, evaluation, and Beta Products are delivered “as is” and without warranty of any kind.

B.3.3 General Disclaimer. Except for the express limited warranties set forth in this Agreement, Esri disclaims all other warranties or conditions of any kind, whether express or implied, including, but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, and noninfringement of intellectual property rights. Esri is not responsible for any nonconformities with Specifications or loss, deletion, modification, or disclosure of Customer Content caused by Customer’s modification of any Esri Offering other than as specified in the Documentation. Esri does not warrant that Esri Offerings, or Customer’s operation of the same, will be uninterrupted, error free, fault tolerant, or failsafe or that all nonconformities can or will be corrected, or will result in Customer’s compliance with any applicable law. Esri Offerings are not designed, manufactured, or intended for use in environments or applications that may lead to death, personal injury, or physical property or environmental damage.

Customer should not follow any navigational route suggestions that appear to be hazardous, unsafe, or illegal. Any such uses will be at Customer’s own risk and cost.

B.3.4 Disclaimers.
a. Internet Disclaimer. Neither party will be liable for damages under any theory of law related to the performance or discontinuance of operation of the Internet or to regulation of the Internet that might restrict or prohibit the operation of Cloud Services.
b. Third-Party Websites; Third-Party Content. Esri is not responsible for any third-party website or ThirdParty Content that appears in or is referenced by Esri Offerings or Esri websites, including www.esri.com, developers.arcgis.com, livingatlas.arcgis.com and www.arcgis.com. Providing links to third-party websites and resources does not imply an endorsement, affiliation, or sponsorship of any kind.
c. Artificial Intelligence (AI)/Machine Learning (ML) Disclaimer. As specified in the Documentation, certain Esri Offerings may integrate third-party AI/ML software libraries and third-party or Esri created pre-trained AI/ML models for various tasks including, but not limited to, object detection, image obfuscation, image classification, or text or speech recognition. Customer may use these capabilities at its option and such AI/ML capabilities are delivered “as is” and without warranty of any kind. In certain cases, the Esri Offering may provide Customers the ability to configure their own custom

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AI/ML models to meet Customer’s unique requirements, which except for the express warranties contained in this Agreement, shall be at Customer’s own risk.

B.3.5 Exclusive Remedy. Customer’s exclusive remedy and Esri’s entire liability for breach of the limited warranties in this section will be to replace any defective media and to (i) repair, correct, or provide a workaround for the applicable Esri Offering or Services or (ii) at Esri’s election, terminate Customer’s right to use and refund the fees paid for Esri Offerings or Services that do not meet Esri’s limited warranties.

ARTICLE B.4—LIMITATION OF LIABILITY
B.4.1 Disclaimer of Liability.
(a) Neither Customer, Esri, nor any Esri authorized distributor or third-party licensor will be liable for any indirect, special, incidental, or consequential damages; lost profits; lost sales; loss of goodwill; or costs of procurement of substitute goods or services.
(b) Neither Customer, Esri nor any Esri authorized distributor or third-party licensor will be liable for any direct damages exceeding the applicable license fees, or current subscription fees, or Services fees paid or owed to Esri during the twelve (12) month period prior to the date upon which the related claim arose.

B.4.2 The limitations and exclusions of liability in the preceding paragraph do not apply to Customer’s infringement, misuse, or misappropriation of Esri’s or Esri’s licensors’ intellectual property rights, either party’s indemnification obligations, gross negligence, willful misconduct, or violations of the Export Compliance clause of this Agreement.

B.4.3 Applicability of Disclaimers and Limitations. Esri or its authorized distributor has set its fees and entered into this Agreement in reliance on the disclaimers and limitations in this Agreement; the fees reflect an allocation of risk that is an essential basis of the bargain between the parties. These limitations will apply whether or not a party is aware of the possibility of any damage and notwithstanding any failure of essential purpose of any exclusive, limited remedy.

B.4.4 The foregoing disclaimers, limitations, and exclusions may be invalid in some jurisdictions and apply only to the extent permitted by applicable law or regulation in Customer’s jurisdiction. Customer may have additional rights that may not be waived or disclaimed. Esri does not seek to limit Customer’s warranty or remedies to any extent not permitted by law.

ARTICLE B.5—INDEMNIFICATIONS
B.5.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. “Claim” means any claim, action, or demand by a third party. b. “Indemnitees” means Customer and its directors, officers, and employees. c. “Infringement Claim(s)” means any Claim alleging that Customer’s use of or access to any Esri Offering or Service infringes a patent, copyright, trademark, or trade secret. d. “Loss(es)” means expenditure, damage award, settlement amount, cost, or expense, including awarded attorneys’ fees.

B.5.2 Infringement Indemnity.
a. Esri will defend, hold all Indemnitees harmless from, and indemnify any Loss arising out of an Infringement Claim.
b. If Esri determines that an Infringement Claim is valid, Esri may, at its expense, either (i) obtain rights for Customer to continue using the Esri Offerings or Services or (ii) modify the Esri Offerings or Services while maintaining substantially similar functionality. If neither alternative is commercially reasonable, Esri may terminate Customer’s right to use the Esri Offerings or Services and will refund any (a) license fees that Customer paid for the infringing Esri Offerings or Services acquired under a Perpetual License, prorated on a 5-year, straight-line depreciation basis beginning from the initial date of delivery or (b) unused portion of fees paid for Term Licenses, subscriptions, and Maintenance.

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c. Esri has no obligation to defend an Infringement Claim or to indemnify Customer to the extent the Infringement Claim arises out of (i) the combination or integration of Esri Offerings or Services with a product, process, system, or element that Esri has not supplied or specified in the Specification; (ii) alteration of Esri Offerings or Services by anyone other than Esri or its subcontractors; (iii) compliance with Customer’s specifications; or (iv) use of Esri Offerings or Services after Esri either provides a modified version to avoid infringement or terminates Customer’s right to use the Esri Offerings or Services.

B.5.3 General Indemnity. Esri will defend and hold all Indemnitees harmless from, and indemnify any Loss arising out of, any Claim for bodily injury, death, or tangible or real property damage brought against any of the Indemnitees to the extent arising from any negligent act or omission or willful misconduct by Esri or its directors, officers, employees, or agents performing Services while on Customer’s site.

B.5.4 Conditions for Indemnification. As conditions for indemnification, Indemnitee will (i) promptly notify Esri in writing of the Claim, (ii) provide all available documents describing the Claim, (iii) give Esri sole control of the defense of any action and negotiation related to the defense or settlement of any Claim, and (iv) reasonably cooperate in the defense of the Claim at Esri’s request and expense.

B.5.5 This section sets forth the entire obligation of Esri, its authorized distributor, and its third party licensors regarding any Claim for which Esri must indemnify Customer.

ARTICLE B.6—INSURANCE
If Esri is providing Services, Esri will carry, at a minimum, the following coverage:
a. Comprehensive general liability or commercial general liability with a minimum coverage of $1,000,000.00 (US dollars) combined single limit per occurrence for bodily injury, including death, and property damage liability to include the following:

1. Premises and operations;

2. Blanket contractual liability;

3. Broad form property damage;

4. Independent contractors;

5. Personal injury, with employee exclusion deleted; and

6. Completed operations.
b. Workers’ compensation insurance, with waiver of subrogation, in an amount that complies with statutory limits.

ARTICLE B.7—SECURITY AND COMPLIANCE
B.7.1 Security. Esri publishes its security capabilities at https://trust.arcgis.com. Customer may give Esri personnel access to Customer systems or to Customer or third-party personal information, controlled information, or sensitive data if access is essential for Esri’s performance of Services and if Esri expressly agrees to such access. Esri will use reasonable administrative, technical, and physical safeguards to protect such data and guard against unauthorized access. Customer bears responsibility to (i) confirm that Esri’s published security and privacy controls meet all applicable legal requirements for protection of Customer Content and (ii) upload or share Customer Content through Cloud Services only when it is legal to do so. Esri is not responsible to review Customer Content to ensure compliance with applicable laws and regulations. Customer must contact Esri at [email protected] for further instruction before providing any Customer Content that requires security measures other than Esri’s published security capabilities.

B.7.2 Malicious Code. Esri will use commercially reasonable efforts to ensure that Esri Offerings will not transmit any Malicious Code to Customer. Esri is not responsible for Malicious Code that Customer introduces to Esri Offerings or that is introduced through Third-Party Content.

B.7.3 Export Compliance. Each party will comply with all applicable export and trade sanctions laws and regulations, including the US Department of Commerce’s Export Administration Regulations (EAR), the US Department of State’s International Traffic in Arms Regulations (ITAR), the US Department of Treasury, Office of Foreign Assets Control (OFAC) Regulations, and other applicable export laws. Customer will not export, reexport,

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transfer, release, or otherwise dispose of, in whole or in part, or permit access to or transfer or use of Services or Esri Offerings to any United States embargoed countries currently including Iran, Syria, North Korea, Cuba, Russia, Belarus, Crimea region of Ukraine, the Donetsk People’s Republic (DNR) and Luhansk People’s Republic (LNR), or denied entities or persons except in accordance with all then-current applicable US government export laws and regulations. Customer will not export, reexport, transfer, or use Services or Esri Offerings for certain missile, nuclear, chemical, or biological activities or end uses without proper authorization from the US government. Customer shall immediately notify Esri in writing if any US government entity or agency denies, suspends, or revokes Customer’s export privileges. Customer will not upload, store, or process in Cloud Services any Customer Content that (i) has an Export Control Classification Number (ECCN) other than EAR99 or (ii) is controlled for export from the United States under ITAR or (iii) is subject to the EAR where the cloud host is on the US government’s Specially Designated Nationals List, Denied Entity List, Unverified List or Denied Parties List or any other US government restricted list. Customer will notify Esri in advance if Esri’s performance of any Services or provision of any Esri Offerings is related to any defense article, defense service, or technical data, as defined under the ITAR Sections 120.31, 120.32, and 120.33, respectively; Esri will not perform any such Services or provide any such Esri Offerings until Esri obtains any necessary export license from the US government.

Customer will reasonably assist Esri in applying for and obtaining an export license if needed.

B.7.4 Privacy. Esri will process personal data according to the terms of the Data Processing Addendum available at https://www.esri.com/en-us/privacy/overview.

ARTICLE B.8—CLOUD SERVICES
B.8.1 Prohibited Uses. Customer shall not provide Customer Content or otherwise access or use Cloud Services in a manner that
a. Creates or transmits spam, spoofings, or phishing email or offensive, hate-related or defamatory material; or stalks or makes threats of physical harm;
b. Stores or transmits any Malicious Code;
c. Violates any law or regulation;
d. Infringes or misappropriates the rights of any third party; e. Probes, scans, or tests the vulnerability of Cloud Services or breach any security or authentication measures used by Cloud Services without written approval from Esri’s Product Security Officer; or f. Benchmarks the availability, performance, or functionality of Cloud Services.

B.8.2 Service Interruption. System failures or other events beyond Esri’s reasonable control may interrupt Customer’s access to Cloud Services. Esri may not be able to provide advance notice of such interruptions.

B.8.3 Customer Content.
a. Customer grants Esri and its subcontractors a nonexclusive, nontransferable, worldwide right to host, run, modify, and reproduce Customer Content as needed to provide Cloud Services to Customer. Esri will not access, use, or disclose Customer Content without Customer’s written permission except as reasonably necessary to support Customer’s use of Cloud Services. Except for the limited rights granted to Esri under this Agreement, Customer retains all its rights, title, and interest in the Customer Content. b. If Customer accesses Cloud Services with an application provided by a third party, Esri may disclose Customer Content to such third party as necessary to enable interoperation between the application, Cloud Services, and Customer Content.
c. Esri may disclose Customer Content if required to do so by law or regulation or by order of a court or other government body, in which case Esri will reasonably attempt to limit the scope of disclosure. d. When Customer’s use of Cloud Services ends, Esri will either

1. Make Customer Content available to Customer for download for a period of 30 days unless Customer requests a shorter window of availability or Esri is legally prohibited from doing so; or

2. Download all Customer Content in Esri’s possession to a medium of Customer’s choosing and deliver such Customer Content to Customer.

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Esri will have no further obligations to store or return Customer Content at the conclusion of the Cloud Services.

B.8.4 Removal of Customer Content. Esri may remove or delete Customer Content if there is reason to believe that uploading Customer Content to or using it with Cloud Services materially violates this Agreement. If reasonable under these circumstances, Esri will notify Customer before removing Customer Content. Esri will respond to any Digital Millennium Copyright Act takedown notices in accordance with Esri’s copyright policy, available at www.esri.com/legal/dmca_policy.

B.8.5 Service Suspension. Esri may suspend access to Cloud Services (i) if Customer materially breaches this Agreement and fails to timely cure the breach; (ii) if Esri reasonably believes that Customer’s use of Cloud Services will subject Esri to immediate liability or adversely affect the integrity, functionality, or usability of the Cloud Services; (iii) for scheduled maintenance; (iv) to enjoin a threat or attack on Cloud Services; or (v) if Cloud Services become prohibited by law or regulated to a degree that continuing to provide them would impose a commercial hardship. When feasible, Esri will notify Customer of any Cloud Services suspension beforehand and give Customer reasonable opportunity to take remedial action.

Esri is not responsible for any damages, liabilities, or losses that may result from any interruption or suspension of Cloud Services or removal of Customer Content as described above.

B.8.6 Notice to Esri. Customer will promptly notify Esri if Customer becomes aware of any unauthorized use of Customer’s subscription or any other breach of security regarding Cloud Services.

ARTICLE B.9—GENERAL PROVISIONS
B.9.1 Payment. Customer will pay each correct invoice no later than 30 days after receipt and will remit payment to the address stated on the invoice. Customers outside the United States will pay the authorized distributor’s invoices in accordance with the authorized distributor’s payment terms.

B.9.2 Feedback. Esri may freely use any feedback, suggestions, or requests for Product improvement that Customer provides to Esri.

B.9.3 Patents. Customer may not seek, and may not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates any Products. This express prohibition on patenting will not apply to Customer’s software and technology except to the extent that Products, or any portion thereof, are part of any claim or preferred embodiment in a patent application or a similar application.

B.9.4 Reserved.

B.9.5 Taxes and Fees; Shipping Charges. Pricing of Esri Offerings and Services that Esri quotes to Customer is exclusive of any and all applicable taxes or fees including, but not limited to, sales tax, use tax, or value-added tax (VAT); customs, duties, or tariffs; shipping and handling charges; and vendor enrollment fees. Esri will add any fees that it is required to pay to the total amount of its invoice to Customer. Esri may include estimated taxes and shipping and handling charges in its quotations but may adjust these fees on invoicing. For Customers outside the United States, the authorized distributor may quote taxes or fees in accordance with its own policies.

B.9.6 Compliance Review. Customer will keep accurate and complete records and accounts pertaining to its compliance with its obligations under this Agreement. Esri or its authorized distributor may conduct a compliance review of these records and accounts with no less than 14 business days’ written notice or may appoint an independent third party to conduct such a compliance review on its behalf. Customer will promptly correct any noncompliance identified during the compliance review. Neither Esri nor Esri’s authorized distributor may conduct a compliance review of Customer within 12 months after the conclusion of any prior compliance review that does not reveal any material Customer noncompliance.

B.9.7 No Implied Waivers. The failure of either party to enforce any provision of this Agreement is not a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

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B.9.8 Severability. If any provision of this Agreement is held to be unenforceable for any reason, (i) such provision will be reformed only to the extent necessary to make the intent of the language enforceable, and (ii) all other provisions of this Agreement will remain in effect.

B.9.9 Successor and Assigns. Customer will not assign, sublicense, or transfer Customer’s rights or delegate Customer’s obligations under this Agreement without Esri’s and its authorized distributor’s prior written consent, and any attempt to do so without consent will be void. This Agreement will be binding on the respective successors and assigns of the parties to this Agreement. Notwithstanding, a contractor under contract to the government to deliver Products may assign this Agreement and Products acquired for delivery to its government customer upon written notice to Esri, provided the government customer assents to the terms of this Agreement.

Upon mutual agreement, Esri’s Affiliates may provide Services under the terms of this Agreement; in such cases, the Ordering Documents will identify the Affiliate as the party that provides the Services. Esri’s authorized distributors are not Affiliates of Esri.

B.9.10 Survival of Terms. The Glossary of Terms and provisions of the following Articles of these General Terms and Conditions will survive the expiration or termination of this Agreement: “Limited Warranties and Disclaimers,” “Limitation of Liability,” “Indemnifications,” and “General Provisions.” B.9.11 US Government Customer. The Products are commercial items, developed at private expense, provided to Customer under this Agreement. If Customer is a US government entity or US government contractor, Esri licenses or provides subscriptions to Customer in accordance with this Agreement under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202. Esri Data and Online Services are licensed or subscribed under the same DFARS Subpart 227.7202 policy as commercial computer software for acquisitions made under DFARS. Products are subject to restrictions, and this Agreement strictly governs Customer’s use, modification, performance, reproduction, release, display, or disclosure of Products. Agreement provisions that are inconsistent with federal law regulation will not apply. A US government Customer may transfer Software to any of its facilities to which it transfers the computer(s) on which it has installed such Software. If any court, arbitrator, or board holds that a US government Customer has greater rights to any portion of Products under applicable public procurement law, such rights will extend only to the portions affected.

B.9.12 Governing Law. This Agreement is not subject to the United Nations Convention on Contracts for the International Sale of Goods.
a. Government Entities. If Customer is a government entity, the applicable laws of Customer’s jurisdiction govern this Agreement.
b. Nongovernment Entities. US federal law and the law of the State of California exclusively govern this Agreement, excluding their respective choice of law principles.

B.9.13 Dispute Resolution. The parties will use the following dispute resolution processes:
a. Equitable Relief. Either party will have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief.
b. US Government Agencies. This Agreement is subject to the Contract Disputes Act of 1978, as amended (41 USC 601–613).
c. Other Government Entities. Esri will comply with mandatory dispute resolutions under applicable law. d. Arbitration. Except as noted above, the parties will submit to binding arbitration to resolve any dispute arising out of or relating to this Agreement that cannot be settled through negotiation. If Customer is in the United States or one of its territories or outlying areas, the Commercial Arbitration Rules of the American Arbitration Association will govern the arbitration proceedings. If Customer is outside the United States, the Rules of Arbitration of the International Chamber of Commerce will govern the proceedings. The parties will select a single arbitrator in accordance with the applicable arbitration rules. The language of the arbitration will be English. Arbitration will be at an agreed-upon location. Either party will, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.

B.9.14 Force Majeure. A party will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond the party’s reasonable control. Such causes may

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include, but are not limited to, acts of God, war, strikes, labor disputes, cyber attacks, laws, regulations, government orders, or any other force majeure event.

B.9.15 Independent Contractor. Esri is and at all times will be an independent contractor. Nothing in this Agreement creates an employer/employee, principal/agent, or joint venture relationship between Esri or its authorized distributor and Customer. No party has any authority to enter into contracts on behalf of another party or otherwise act on behalf of another party.

B.9.16 Notice. Customer may send notices required under this Agreement to Esri at the following address:

Environmental Systems Research Institute, Inc.

Attn.: Contracts and Legal Department
380 New York Street
Redlands, CA 92373-8100
USA
Tel.: 909-793-2853
Email: [email protected]

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E204-Legal

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ATTACHMENT C

SAMPLE TASK ORDER
Esri Agreement No. ________
Task Order No. __________
In accordance with the terms and conditions of the above-referenced Agreement between Environmental Systems Research Institute, Inc. (“Esri”), and ______________________ (“Customer”), ___________________ (“Customer Address”), this Task Order authorizes preparation and provision of the Deliverables described and in accordance with the terms, schedule, and start/end date(s) specified below.

1. Scope of Work: [As applicable, specifically identify and describe Deliverables including custom code, map data, technical data (including technical assistance), and the resources to be provided by Customer (including Customer-supplied personnel, software, hardware, and digital or hard-copy data) and place of delivery and location where technical assistance will be provided.]
In addition to the foregoing, Customer agrees that its employees, representatives, and subcontractors will cooperate and communicate with Esri during performance of this Task Order. Without cost to Esri, Customer shall provide, allow access to, or assist Esri in obtaining all data Esri requests for performance of this Task Order, including, but not limited to, (1) copies of previously prepared reports, maps, plans, surveys, records, and other documents in the control or possession of Customer and (2) copies of ordinances, codes, regulations, or other governmental documents.

2. Contract Type: [Firm Fixed Price (FFP) or Time and Materials (T&M)]:

3. Total Task Order Value (if FFP) or Not-to-Exceed Value (if T&M):

4. Customer Address for the Receipt of Esri Invoices:

5. Delivery Schedule or Start/End Date(s) for Each Deliverable:

6. Special Considerations:

7. Esri Project Manager: [insert name, telephone, and email address] Esri Contract Specialist: [insert name, telephone, and email address] Customer Project Manager: [insert name, telephone, and email address] Customer Contract Contact: [insert name, telephone, and email address] Customer Accounts Payable Contact: [insert name, telephone, and email address] ACCEPTED AND AGREED:

ENVIRONMENTAL SYSTEMS
[sample only—do not sign] RESEARCH INSTITUTE, INC.
(Customer) (Esri)
Signature: [sample only—do not sign] Signature: [sample only—do not sign] Printed Name: Printed Name:

Title: Title:

Date: Date:

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11 CITY COUNCIL STAFF REPORT
MEETING DATE: May 21, 2025
PREPARED BY:

Tiffany Brown, Senior Planner
APPROVED BY: City Manager

APPROVE OBJECTIVE DEVELOPMENT STANDARD WAIVER

REQUEST FOR THE DIANA - VALLEY OAK RESIDENTIAL PROJECT

RECOMMENDATION(S)
Adopt a resolution approving the request for one waiver to the City's objective Residential Development Design and Development Standards for residential development.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Maintaining and Enhancing Infrastructure
Preserving and Cultivating Public Trust
Advocating for Local, Regional, and State Legislative Initiatives 2024-2025 Strategic Priorities
Affordable Housing and Homelessness
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

REPORT NARRATIVE:

Diana Valley Oak Partners (Diana - Valley Oak) applied for a Subdivision Map and Design Permit with environmental review for the development of 93 attached residential units on an approximate 5-acre parcel located on the northeast corner of Butterfield Boulevard and Diana Avenue at 375 Diana Avenue (APNs: 726-12-001 and 004). The units are dispersed between 16 townhome style buildings and include two neighborhood parks with common open space (19 du/acre). The General Plan and Zoning for the site is Residential Attached Medium and allows between 16 and 24 dwelling units to the acre.

The project will provide 14 below market rate units (15% of the project) to be restricted for-sale to qualified moderate-income buyers, allowing the project to be eligible for Density Bonus under California Density Bonus Law (DBL) pursuant to Government Code Section 65915[b] and Section 65915[f]. Projects that meet the eligibility requirements of DBL are allowed to request concessions (incentives) and unlimited

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11 waivers (reductions) from development standards that could limit the project's ability to achieve the allowed density. While the project is not choosing to increase the project density allowed, the project is still eligible to receive waivers and concessions.

PROJECT OVERVIEW AND COMPLIANCE:

The project is considered an infill development that is in conformance with the Zoning and General Plan land use designation (Site Plans (PDF)). The site is bound to the west by the engineered channel that runs along Butterfield Boulevard. The project was reviewed for compliance with the Residential Development Design and Development Standards for Residential Projects and is in compliance with all standards except number 51. Stream Channel and Riparian Setbacks: If the project is located adjacent to a Category 2 Stream as verified by a biologist, the project must be set back 35-feet from the top of bank. The project as designed proposes a 21-foot setback from the top of bank.

While the waterway is an engineered channel and not a natural stream, the waterway meets the Santa Clara Valley Habitat Plan criteria for a Category 2 Stream as the drainage contains a defined bed and bank and specific topographic position and artificial hydrological connection to a downstream source. The Santa Clara Valley Habitat Agency has a process where an exception to the 35-foot setback can be made.

The exception request was reviewed by the Santa Clara Valley Habitat Agency and supported (Attachment 1).

WAIVER REQUEST:

While the process for the exception to the stream setback has been satisfied by the Santa Clara Valley Habitat Agency, the process for the waiver to the City's Residential Development Design and Development Standards needs to be completed. The request is for a waiver to standard 51. Stream Channel and Riparian Setbacks to reduce the setback from 35-feet to 21-feet.

Under Government Code 65915(e)(1), the city shall grant the waiver or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of the following:

1. The waiver would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. A specific adverse impact is defined as a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

2. The waiver would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

3. The waiver would be contrary to state or federal law.

Staff is unable to make any of these findings for the waiver request. Therefore, staff recommends approval of the waiver requested by the applicant.

COMMUNITY ENGAGEMENT:

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11 The project has a project page on the City's website and the site has been posted with a sign describing the new development and where people can get more information. The project will have a Planning Commission review and public hearing for the Subdivision Map and Design Permit. When the project is ready for hearing, the project will be publicly noticed by mail to property owners within 300-feet of the project site and a newspaper legal ad will be posted in the paper.

ALTERNATIVE ACTIONS:

City Council may find the project request to not be consistent with Government Code Section 65915(e)(1).

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

None.

FISCAL AND RESOURCE IMPACT:

Review costs for this project are paid for through development application processing fees.

CEQA (California Environmental Quality Act):

An environmental analysis will be conducted during the entitlement process (subdivision map and design permit) of the project in compliance with the CEQA and brought to the Planning Commission as part of the project review.

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Page 1 of 4 ends

Santa Clara Valley Habitat Plan
CONDITION 11 EXCEPTION REQUEST
Date February 26, 2025
Subject Stream and Riparian Setback Condition (Condition 11) Exception for375 Diana Ave MH Housing Project
Recommendation Approve exception to reduce setback to no less than 21 feet from top of bank of unnamed Category 2 Stream channel
Reviewed by Don Arnold, Planner
Diana MH Homes, LLC is requesting an exception from Condition 11, Stream and Riparian Setback for their project titled 375 Diana Ave Housing Project located in Morgan Hill, CA.

This condition applies to all covered activities that may impact streams. This includes all development inside the urban service area where a stream or the stream setback overlaps any portion of the parcel on which a covered activity is being implemented. Condition 11 Exception Criteria
For all proposed exceptions to the stream setbacks (inside or outside the urban service area), exceptions will be considered based on the following factors:

1. The existence of legal uses within the setback.

2. The extent to which meeting the required setback would result in a demonstrable hardship (i.e., denies an owner any economically viable use of his land or adversely affects recognized real property interests) for the applicant.

3. The extent to which meeting the required setback would require deviation from, exceptions to, or variances from other established policies, ordinances or standards regarding grading, access, water supply, wastewater treatment, disposal systems, geologic hazards, zoning, or other established code standards.

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Condition 11 Exception Request Diana MH Housing Project February 26, 2025
Santa Clara Valley Habitat Plan Condition 11 Exception Request Page 2 of 4

4. The stream setback exception does not preclude achieving the biological goals and objectives of the Habitat Plan or conflict with other applicable requirements of the Habitat Plan and local policies.

Other considerations may be made based on:
⚫ the implications of a reduced setback on the riparian system and covered species, progress toward the biological goals and objectives of the Plan, and potential effects on adjacent properties; and
⚫ if the exception would allow the project to avoid and minimize impacts on covered species and natural land cover types to the maximum extent practicable.

Exception Applicability and Evaluation
The proposed project is an urban infill housing project located in Morgan Hill, CA. The Category 2 stream channel that is requiring the stream setback exception (SSE) is an engineered stormwater conveyance facility with development encroaching to within 21 feet of top of bank both upstream and downstream of the project. The project proponent is requesting a SSE to the minimum of 35 feet for all Category 2 streams, to no less than 21 feet from top bank.

There are existing uses in the setback currently both upstream and downstream of the project and on the project site. There are housing developments and perimeter fencing on or adjacent to the project site within the 35-foot setback, currently. The area has also been mowed frequently.

Even though there are multiple projects that could make this land economically viable, not allowing the exception could adversely affect recognized real property interests.

The project proponent has chosen a housing project that can benefit from higher densities and more affordable units. Allowing the setback exception allows the project to meet housing density goals for Morgan Hill.

Allowing this SSE will not interfere with the biological goals and objectives of the Plan.

Determination
Based on the justification provided by the project proponent and, in consultation with USFWS and CDFW, the Santa Clara Valley Habitat Agency recommends approval of a reduced stream setback to no less than 21 feet from the unnamed Category 2 stream channel. Please consider using native plants during any revegetation or planting areas, especially within the setback area.

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Condition 11 Exception Request Diana MH Housing Project February 26, 2025
Santa Clara Valley Habitat Plan Condition 11 Exception Request Page 3 of 4 Figure 1. Vicinity Map

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Condition 11 Exception Request Diana MH Housing Project February 26, 2025
Santa Clara Valley Habitat Plan Condition 11 Exception Request Page 4 of 4 Figure 2. Site Map

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RESOLUTION NO. 25-XX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORGAN HILL APPROVING ONE DEVELOPMENT

STANDARD WAIVER FOR THE DIANA-VALLEY OAK
RESIDENTIAL PROJECT CONTAINING 15% PERCENT

AFFORDABLE UNITS LOCATED ON NORTHEAST

CORNER OF BUTTERFIELD BOULEVARD AND DIANA
AVENUE AT 375 DIANA AVENUE (APNs 726-12-001 AND
004)
WHEREAS, Valley Oak Partners submitted an application for Diana – Valley Oak (Project) a multi-family attached residential development project consisting of ninety-three dwelling units.

WHEREAS, Valley Oak Partners has requested one waiver for the housing development.

WHEREAS, the Project is a market rate housing development that includes 15 percent below market rate units to be restricted for-sale to qualified buyers with moderate incomes (14 units).

WHEREAS, pursuant to Government Code Section 65915(d)(2)(B), at least 15 percent of the total units will be available to persons and families of moderate income in a common interest development and therefore, is allowed one concession and unlimited waivers.

WHEREAS, the city shall grant the waiver requested by the applicant unless the city makes a written finding as required by Government Code Section 65915(e)(l), based upon substantial evidence, of any of the following:

The waiver or reduction of the development standard would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

The waiver or reduced development standards would have an adverse impact on any real property that is listed in the California Register of Historical Resources, or the waiver or reduction would be contrary to state or federal law.

WHEREAS, the city shall grant the waiver requested by the applicant to allow for a reduction to the stream and riparian setback.

WHEREAS, the proposed project will provide a public benefit of a minimum of 15 percent of affordable units, for persons and families of moderate income, incorporated within the Diana – Valley Oak project located on the northeast corner of Butterfield Boulevard and Diana Avenue at 375 Diana Avenue and identified by Assessor's Parcel Numbers 726-12-001 and 726-12-004.

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______________

MARK TURNE
City of Morgan Hill
Resolution No. 25-XX

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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MORGAN HILL DOES HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:

Section 1. The City Council does hereby find that the foregoing recitals are true and correct.

Section 2. The project is consistent with the Zoning Ordinance and General Plan.

Section 3. The project is eligible for the proposed waiver per the Municipal Code Section 18.48.050 within the Municipal Code.

Section 4. The City Council of the City of Morgan Hill hereby approves the waiver request for the Diana – Valley Oak project.

Section 5. Thisresolution shall take effect immediately upon adoption.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Morgan Hill at a regular meeting held on the 21st day of May 2025 by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

APPROVED: ATTEST:

R, Mayor MICHELLE BIGELOW, City Clerk

CERTIFICATION
I, Michelle Bigelow, City Clerk of the City of Morgan Hill, California, do hereby certify that the foregoing is a true and correct copy of Resolution No. 24-xx, adopted by the City Council at a regular meeting held on May 21, 2025.

WITNESS MY HAND AND THE SEAL OF THE CITY OF MORGAN HILL.

DATE:

MICHELLE BIGELOW, City Clerk

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12 CITY COUNCIL STAFF REPORT
MEETING DATE: May 21, 2025
PREPARED BY:

Joey Dinh, Associate Planner
APPROVED BY: City Manager

APPROVE SANTA CLARA VALLEY HABITAT AGENCY (SCVHA)

HABITAT PLAN AMENDMENT AND AUTHORIZE GOVERNING BOARD

TO APPROVE FINAL AMENDMENT

RECOMMENDATION(S)

1. Receive information on proposed amendments to the Santa Clara Valley Habitat Plan;

2. Authorize the Santa Clara Valley Habitat Agency to proceed with the Habitat Plan amendment; and

3. Authorize the Santa Clara Valley Habitat Agency Governing Board to approve the final Habitat Plan amendment.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Protecting the Environment and Preserving Open Space and Agricultural Land Advocating for Local, Regional, and State Legislative Initiatives Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

BACKGROUND:

A Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) is required when a project could harm federally or state-listed endangered species. It streamlines environmental permitting by offering a regional approach to mitigation, instead of evaluating each project individually. In 2001, several major transportation projects in Santa Clara County triggered the need for a HCP/NCCP. To address this efficiently, four public agencies, VTA, County of Santa Clara, City of San Jose, and Valley Water, agreed to create a single, large-scale plan. In 2005, the cities of Gilroy and Morgan Hill joined, and together the six agencies signed a Planning Agreement with state and federal wildlife agencies. The Santa Clara Valley Habitat Plan (SCVHP) was approved in 2013. A Joint Powers Authority (the Santa Clara Valley Habitat Agency) was formed to manage and implement the Plan. The Plan satisfies Federal

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12 (HCP under Endangered Species Act) and State (NCCP under California Endangered Species Act) requirements by protecting species and natural habitats, while supporting development through a clear, consistent, and efficient permitting process.

PLAN IMPLEMENTATION:

The SCVHP enables development while protecting endangered species through shared programmatic take permits held by local agencies. These permits allow for limited habitat impacts if they are offset by land conservation and restoration elsewhere, similar to managing a conservation “bank account.” Since launching in 2013, the Plan has been a success: over 410 projects have received automatic take allowance without delays, about 2,700 acres have been impacted, and more than 15,000 acres have been permanently protected, all within a time frame that is approximately 40% ahead of schedule, making the Plan one of the most successful regional conservation efforts in California.

PROPOSED MAJOR AMENDMENT:

The Santa Clara Valley Habitat Plan has been highly successful in meeting its early conservation goals, especially in land acquisition and habitat restoration. Some species and habitat types covered under the Plan are approaching their permitted “take” limits, particularly the burrowing owl and San Joaquin kit fox. This means that impacts from development are nearing the maximum allowed without further amendments. At the same time, new species are emerging as priorities for protection due to range expansion or changing conservation status. Several species not originally included in the Plan have since been proposed for state or federal listing under the California or Federal Endangered Species Acts (CESA or FESA). If these species are not added to the Plan and later become officially listed, projects impacting them could face delays and additional permitting requirements, undermining the streamlined process the Plan currently offers. To address these needs, the Habitat Agency is proposing a formal amendment to the Plan. Key proposed changes are listed below but detailed in the attached SCVHA Technical Summary Staff Report:
• Add new species for coverage
• Add critical habitat analysis for foothill yellow-legged frog, western pond turtle, and any other species for which critical habitat is established during development of the Habitat Plan
• Expand the Plan Area boundary to the northwest to provide coverage for public projects conducted by the Co-Permittees on their land and to the northeast for conservation only, allowing potential enrollment of land into the Reserve System.

A map of the expanded conservation study areas are shown in Attachment B. • Add the California Vegetation Treatment Plan components as covered activities and provide for instances where vegetation management may be considered a beneficial action
• Streamline annual mowing coverage to address impacts on new pollinator

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12 species
• Add Valley Water’s Stream Maintenance Program elements as covered activities • Reconsider the status of the Burrowing Owl Conservation Strategy and request additional permanent take acres of occupied habitat. A map of the proposed burrowing owl expanded conservation fee zone is shown in Attachment A. • Begin tracking land cover impacts at the natural community level as opposed to specific land cover types identified in the Plan
• Consider revising how land cover impacts are tracked to be consistent with more recent regional HCP/NCCPs
• Reset temporary impacts clock every five years to avoid non-compliance with temporary take limits to habitat.
• Formally incorporate guidance and determinations made by the Habitat Agency through past clarifications and interpretations of the Plan • Eliminate the Private Development Areas Map to expand coverage to all private development projects occurring on parcels over two acres in size • Allow alternatives to a conservation easement as the only mechanism to protect land owned by the Habitat Agency
• Seek restoration credit for passive actions such as fencing to restrict cattle or pigs from sensitive habitats
• Remove co-permittee survey requirements for smooth lessingia and the San Joaquin kit fox in favor of a single annual survey for the species conducted by the Habitat Agency
• Update Condition 11 related to stream setback exceptions for development • Add bird-safe and exterior lighting designs as avoidance measures, if possible PLAN AMENDMENT FUNDING AND FUTURE COSTS:

Funding for the proposed Habitat Plan amendment has already been secured through two U.S. Fish and Wildlife Service (USFWS) Section 6 grants, with additional support from Valley Water for amendment elements that specifically benefit their projects. No other co-permittees are contributing direct funding. The Plan amendment will update the impact and funding assumptions to reflect actual development trends, helping to ensure the Plan remains effective without increasing developer fees.

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12 MEMORANDUM OF UNDERSTANDING (MOU):

As part of the existing MOU between the Habitat Agency and the co-permittees (Attachment C), Section 8 of the MOU calls for any Local Partner (including the Habitat Agency) desiring to amend the Plan and/or its Permits, to notify every other copermittee and for everyone to meet and confer regarding whether to proceed. The Habitat Agency has been coordinating this effort with the co-permittees through meetings with the Technical Advisory Committee, the Implementation Board, and the Governing Board, all of which have co-permittee representation. Consistent with this section of the MOU, the Habitat Agency is now requesting approval to proceed with the proposed Plan Amendment from each of the co-permittee agency governing bodies.

Completing the Plan amendment process will take time, as identified in the schedule below. There will continue to be a significant level of coordination between the Habitat Agency and the co-permittees.

HCP/NCCP
Public Draft of the
Amended Santa
Clara Valley

HCP/NCCP
Complete Admin
Draft NEPA/CEQA
Document
Public Draft

NEPA/CEQA
Document and
Public Review
Prepare Final
Amended Santa
Clara Valley
HCP/NCCP and

NEPA/CEQA
Conclusion:

The Habitat Agency requests that the Morgan Hill City Council approve pursuit of the Plan amendment as presented. If approved, the Habitat Agency Implementation and

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12 Governing Boards may approve a final Plan amendment upon its completion of environmental review.

COMMUNITY ENGAGEMENT:

Inform The SCVHA and the plan amendment project have a multilayered approach to community engagement. The SCVHA hosts Public Advisory Committee (PAC), Implementation & Governing Board, and Technical Advisory Committee (TAC) meetings that present progress reports including plan amendment updates. Members and attendees then brief their home agencies, stakeholder networks, and communities. The SCVHA will be briefing co-permitee city councils of Gilroy, San Jose, Santa Clara County, Valley Water, and VTA on the plan amendment progress and seeking approval to proceed with the plan amendment. A public draft NEPA/CEQA EIS/EIR document will be circulated for review with all required agencies and channels. A formal CEQA/NEPA public review window will occur. The SCVHA will issue a Notice of Availability, hold at least one public meeting, and accept comments during the formal public review window.

Additionally, requesting approval from each co-permittee also serves as an opportunity to inform, involve, and collaborate with co-permittees and their respective communities.

Final approval of the proposed plan amendment will include a public meeting with the Agency’s Public Advisory Committee, who will provide a recommendation to approve or deny the amendment to the final approval authority, the Habitat Agency’s Implementation Board.

ALTERNATIVE ACTIONS:

The City Council could defer the decision for further review. This would also require the SCVHA to return at a later date to request approval to proceed with the plan amendment. The City Council could also direct the Habitat Agency to explore additional alternatives.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

In 2005, the City of Morgan Hill passed a resolution to officially join the Santa Clara Valley Habitat Agency and the Santa Clara Valley Habitat Plan (the Plan) and along with the other co-permittee agencies, signed a Memorandum of Understanding (MOU) that outlined the roles and responsibilities of the participating agencies in the development and implementation of the Habitat Plan.

In 2013, following the development of the Habitat Plan, Morgan Hill adopted a resolution to approve the Santa Clara Valley Habitat Plan and its associated implementation guidelines.

FISCAL AND RESOURCE IMPACT:

There is no direct fiscal impact. Funding for the plan amendment has been fully secured by the SCVHA through USFWS/CDFW grants and also funds provided by SCVWD to pay for benefits they specifically receive through the amendment that does not benefit the other co-permittees.

City of Morgan Hill and the other co-permitees already allocate staff time to administer

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12 the SCVHP. Staff resources will continue to be required to (1) help applicants prepare SCVHP forms, (2) verify land-cover impacts and calculate fees, and (3) collect and pass those fees to the SCVHA. The Development Services Director also sits on the Implementation Board.

CEQA (California Environmental Quality Act):

A Supplemental Environmental Impact Report (SEIR) consistent with the California Environmental Quality Act (CEQA) will be prepared for the plan amendment to the Santa Clara Valley Habitat Plan.

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SANTA CLARA VALLEY HABITAT PLAN

MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOD") is entered into by and among the Santa Clara Valley Habitat Agency ("Agency"), the County of Santa Clara (the "County"), the City of San Jose ("San Jose"), the Santa Clara Valley Water District ("SCVWD"), the Santa Clara Valley Transportation Authority ("VTA"), the City of Gilroy ("Gilroy"), the City of Morgan Hill ("Morgan Hill"), and the Santa Clara County Open Space Authority ("OSA"). The parties may be referred to collectively as the "Parties" and individually as a "Party" in this MOD. The County, San Jose, SCVWD, VTA, Gilroy and Morgan Hill are collectively referred to as "Local Partners."

RECITALS
The Local Partners have been engaged in a lengthy process to develop a joint habitat conservation plan and natural communities conservation plan entitled the "Santa Clara Valley Habitat Plan" ("Habitat Plan").
1"^ The purposes of the Habitat Plan include the long-term protection of ecosystems and biodiversity within the geographic area covered by the Habitat Plan, and the provision of incidental take authorization pursuant to the Federal Endangered Species Act and the California Natural Community Conservation Planning Act for local land use and public agency infrastructure activities.

The Habitat Plan and the Santa Clara Valley Habitat Plan Implementing Agreement ("Implementing Agreement") identify certain duties and obligations that must be fulfilled, in whole or in part, by an "Implementing Entity."
D. The Local Partners determined that it was appropriate to establish a joint powers agency to serve as the Implementing Entity for the Habitat Plan. The Joint Powers Act, Gov. Code § 6500 et seq., requires that all parties to a joint powers agreement have common powers.

One of the primary functions of the joint powers agency is to adopt mitigation fees for development projects pursuant to the Mitigation Fee Act, Government Code § 66000 et seq., to help finance Habitat Plan implementation activities. Because only certain of the Local Partners (the County, San Jose, Morgan Hill and Gilroy) have clear authority to adopt mitigation fees, the Local Partners determined that the parties to the joint exercise of powers agreement ("Agency Agreement") creating the Santa Clara Valley Habitat Agency would be limited to the County, San Jose, Morgan Hill and Gilroy. Nonetheless, because the Implementing Agreement and the Permits associated with the Habitat Plan provide that all Local Partners are responsible for ensuring that the Habitat Plan is fully implemented, all of the Local Partners will play a role in the Santa Clara Valley Habitat Agency.

The OSA will also play a critical role in Habitat Plan implementation, including potential contributions of land to the Habitat Plan Reserve System and/or potentially undertake management and monitoring, and/or provide other services related to implementation of the Habitat Plan.

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NOW, THEREFORE, the Parties, for and in consideration of the mutual promises and agreements herein contained, agree as follows:

PURPOSES
The purposes of this MOD are to:

Further define the roles, rights and responsibilities of the Parties with respect to Habitat Plan implementation activities;
Explain the relationships between the Parties;
Establish processes for resolving disputes and addressing other issues that may arise with respect to the Habitat Plan;

EFFECTIVE DATE
The following conditions must occur before this MOU will go into effect: 1) the Implementing Agreement must be fully executed; and 2) all parties must execute this MOU. The effective date of this MOU will occur at the date when both of the above mentioned conditions have been fulfilled.
3 • DEFINITIONS
Unless the context otherwise requires, the terms used in this MOU shall have the same definitions as provided in the Implementing Agreement.

LOCAL PARTNER AND AGENCY ROLES
All of the Local Partners are Permittees and parties to the Implementing Agreement.

Therefore, all of the Local Partners must ensure that they comply with the Habitat Plan and Permits. However, although each Local Partner must ensure that its own actions comply with the Plan and Permits, the primary responsibilities for implementing the Habitat Plan rests with the Agency. Among other things, the Agency is responsible for ensuring that there is sufficient funding to perform all implementation activities, including activities during the permit term and in perpetuity. Except for paying SCVHP Fees associated with their own projects and, where applicable, collecting SCVHP Fees from private project applicants and transmitting SCVHP Fees to the Agency, the Local Partners are not required to fund implementation activities. These roles and responsibilities are more fully described in Chapter 8 of the Habitat Plan.
(a)
(b) Although VTA and SCVWD are not parties to the Agency Agreement, all of the Local Partners will play an active role in the Agency through, among other things, their representatives on the Implementation Board of the Agency. The fact that VTA and SCVWD are not parties to the Agency Agreement should not be viewed in any way as diminishing their rights and responsibilities established in the Habitat Plan or Permits.

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5. OSA ROLE
(a) Although OSA is not a Permittee, the Parties anticipate that OSA may contribute land and potentially other resources that will assist with fulfilling Habitat Plan implementation responsibilities. Exhibit , which is attached hereto and incorporated by reference herein, are the "Principles of Participation in the Santa Clara Valley Habitat Plan" that were adopted by the OSA Board on September 9, 2010.
(b) While the OSA is not a Permittee under the Habitat Plan, the OSA has the option to apply for take authorization under the Plan as a Participating Special Entity. To receive this take authorization, the OSA would follow the procedures outlined in the Habitat Plan, including approval by the Implementing Entity and the Wildlife Agencies. To anticipate this, the estimated impacts of OSA activities on the covered species will be included in the Plan. Any Habitat Plan fees due would be offset by an equivalent value of OSA land being concurrently incorporated into the Habitat Plan Reserve System.

6. COMPENSATION FOR LOCAL PARTNER CONTRIBUTIONS TO IMPLEMENTATION

REQUIREMENTS
The Local Partners may contribute land, provide services, or undertake other activities (e.g., habitat creation, restoration, monitoring) that fulfill Habitat Plan implementation requirements. The process by which the Agency will evaluate the value of these contributions and give credit to the Local Partners for these "in lieu" activities is set forth in Section 9.4.1 of the Habitat Plan.

IMPLEMENTATION FUNDING SHORTFALLS
(a) Although the Local Partners believe that the cost and funding assumptions in the Habitat Plan are sound, there is always the possibility that there will be funding shortfalls and/or that the costs of implementing the Habitat Plan exceed expectations. As set forth in the Habitat Plan and Implementing Agreement, the Agency is responsible for implementation and any funding shortfalls, and for ensuring that SCVHP fees keep pace with Habitat Plan implementation costs.

Except for SCVHP fees associated with their own Covered Activities, the Local Partners are not required to contribute any of their funds toward Habitat Plan implementation.
(b) If there is a funding shortfall, the Agency will take all feasible steps to address the funding shortfall, including but not limited to seeking loans from all possible sources. (c) If, despite all reasonable efforts, the Agency is unable to address a funding shortfall, the Local Partners will meet and confer regarding how to proceed. Options that may be considered include, but are not limited to, loans from one or more Local Partners to the Agency, grants from Local Partners, government agencies or nongovernmental entities, relinquishing the permits, and/or amending the Habitat Plan and Permits.
(d) No Local Partner shall be required to provide funding to the Agency. If a Local Partner, in the sole discretion of its governing body, agrees to provide funding to the Agency, it may do so on the condition that the Agency either provide the Local Partner with credit toward future SCVHP Fees or repay the loan at a future date.

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8. HABITAT PLAN/PERMIT AMENDMENTS
(a) There are a variety of reasons why the Local Partners may want or need to amend the Habitat Plan and Permits over the 50-year term, including but not limited to the following;
to add or remove Covered Species;
to expand or retract the Permit Area boundaries;
to add a Permittee;
to address a significant funding shortfall that cannot be addressed through any feasible means;
to reflect significant changes in Habitat Plan assumptions (e.g., the amount or timing of "Take"); or
to provide for additional Covered Activities.
(b) If the Agency or one or more of the Local Partners desires to amend the Habitat Plan and/or Permits, then that Local Partner shall notify the Agency and all of the other Local Partners of this desire and provide an explanation of the proposed amendment and reasons for the amendment.
(c) Upon being notified by the Agency or a Local Partner of a request to amend the Habitat Plan and Permits, the Agency and all Local Partners will meet and confer regarding whether to proceed with the proposed amendment. (d) The costs associated with any amendment to the Habitat Plan and Permits (including but not limited to preparation, analysis and approval of the amendment documents and implementation responsibilities resulting from the amendment) shall be borne by the Local Partners in a manner that reflects the relative benefit of the amendment to each Local Partner. A cost allocation shall be mutually agreed upon by the Local Partners before any costs are incurred in relation to the amendment.

Any Local Partner that commences work on an amendment prior to this proceeds at its own risk.
(e) Any decision to seek an amendment to the Habitat Plan and Permits, and the cost allocation associated with the amendment, shall be approved by the governing bodies of all of the Local Partners before any work is begun or any costs are incurred in relation to the amendment. Any Local Partner that commences work on an amendment prior to this proceeds at its own risk.

WITHDRAWAL
(a) If a Local Partner decides to withdraw from the Implementing Agreement and relinquish its Permits, it shall first provide 180 days written notice to the Agency, the other Local Partners and the OSA. Notwithstanding such withdrawal, the withdrawing Local Partner shall remain obligated, to the same extent, if any, that the remaining Parties are obligated, to contribute amounts necessary to pay any debts, liabilities and obligations of the Agency arising from or related to actions taken by the Agency while the withdrawing Party was a party to the Implementing Agreement.

Upon withdrawal, the withdrawing Party shall no longer be a Party to this MOU or a Local Partner, and the term "Parties" and "Local Partners" as used in this MOU shall thereafter mean the remaining Parties and Local Partners to this MOU.

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(b) The OSA may withdraw from the MOD upon ninety (90) days written notice to the Agency and the Local Partners. Upon withdrawal, the OSA shall no longer be a Party to this MOU, and the term "Parties" as used in this MOU shall thereafter mean the remaining Parties and Local Partners to this MOU.
(c) Within 30 days after receiving a notice of withdrawal, the Parties who will remain will meet to discuss whether any amendments to the Habitat Plan, Permits or Implementing Agreement are necessary or appropriate in light of the withdrawal, and to prepare any appropriate amendments for consideration by the governing bodies of the remaining Parties. The requirements of this provision are intended to be in addition to any notice or other requirements set forth in the Implementing Agreement or Permits pertaining to withdrawal from or termination of the Habitat Plan or Permits.

10. TERMINATION BY ALL LOCAL PARTNERS
If the governing bodies of all or some of the Local Partners agree to relinquish the Permits and terminate the Implementing Agreement, then the Agency and Local Partners will undertake a process to discuss and resolve the following issues:

Calculating and funding the amounts necessary to pay any debts, liabilities and obligations of the Agency arising from or related to actions taken by the Agency while the Permits and Implementing Agreement were in effect, including but not limited to funding any endowment necessary for ongoing obligations related to Reserve System lands; and
Identifying one or more successor(s) to fulfill the continuing obligations of the Agency.

The dispute resolution process in Section 15 of this MOU may be used for this purpose.

11. REMEDIES FOR HABITAT PLAN/PERMIT/IMPLEMENTATION AGREEMENT

VIOLATIONS
(a) Although the Wildlife Agencies will issue separate permits to the Agency and Local Partners, the obligations imposed by the Habitat Plan, Implementation Agreement and Permits operate collectively. Therefore, if the Agency or a Local Partner violates the Habitat Plan, Implementation Agreement or Permits in a way that puts the overall Habitat Plan or Permits at risk or subjects the Agency and/or Local Partners to an enforcement action, then the other Parties may take any and all commensurate and reasonable action against the violating Party to remedy the noncompliance, including but not limited to filing a lawsuit seeking injunctive relief or specific performance.
(b) The Parties shall engage in the dispute resolution process set forth in Section 15 of this MOU prior to filing a lawsuit for an alleged violation. The dispute resolution process is not required, however, if there is a threat of imminent harm to any Party or if the Wildlife Agencies have notified the Parties of their intent to suspend the Permits or undertake other enforcement action.

12. INDEMNIFICATION AND INSURANCE
(a) Except as provided in Section 14(c) of this MOU, the Agency shall indemnify, defend and hold harmless all of the Local Partners and the OSA and their officers,

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agents, and employees from any claim, liability, loss, injury or damage arising out of, or in connection with, the adoption, execution, performance or implementation of the Habitat Plan, the EIR/EIS, the Permits, the Implementing Agreement, the Agency Agreement or this MOU provided, however, that this obligation by the Agency shall not apply to; (1) reckless, intentional, or willful conduct leading to personal injury, or (2) any claims, demands, damages, costs, expenses or suits by one party to this MOU against one or more other parties relating to an alleged breach of either agreement. The Agency shall reimburse the Local Partner(s) and the OSA for all reasonable costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation or action in which the Agency is obligated to indemnify, defend and hold harmless the Local Partner(s) and the OSA under this MOU. Any indemnified party may elect to provide its own defense at that party's own expense. (b) It is the intent of the Parties that the provisions of this Section 12 provide the broadest possible coverage for the Local Partners. The Agency shall obtain and maintain insurance to provide sufficient coverage to fulfill its obligations under this Section.
(c) Each Local Partner shall require that any consultant hired to implement this MOU obtain and maintain insurance policies to provide sufficient coverage to fulfill its obligations under this Section.
(d) If any claim, liability, loss, injury or damage for which the Agency is obligated to indemnify, defend and hold harmless the Local Partner(s) and the OSA pursuant to this Section 12 is filed or incurred before the Agency is formed, has sufficient revenues or obtains sufficient insurance to fulfill its obligations under this Section 12, then the Local Partner(s) may bear their own their reasonable costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation or action in which the Agency is obligated to indemnify, defend and hold harmless the Local Partner(s) and the OSA under this Section 12 and recover them from the Agency at a future date, and the Agency shall not raise any defenses related to the timeliness of such a claim for recovery (e.g., statute of limitations, laches) against the Local Partner(s) or the OSA.

13. AGENCY FAILURE/INABILITY TO PERFORM
(a) If, for any reason, the Agency is unable or unwilling to perform its implementation duties, then the Local Partners will meet and confer regarding how to proceed.

Options that may be considered include, but are not limited to, recommending that the parties to the Implementing Agreement dissolve the Agency and that the Local Partners establish a new implementing entity or reallocate Habitat Plan implementation obligations.
(b) If a particular Local Partner or its representatives to the Governing Board or Implementation Board are preventing the Agency from fulfilling its duties, then the other Local Partners shall notify the governing body of the Local Partner that is preventing the Agency from fulfilling its duties and request that the governing body promptly address the situation. If the situation is not resolved within 60 days, the other Local Partners may seek judicial relief, including but not limited to requesting that the court reform the Implementing Agreement without the consent of the Local Partner that is preventing the Agency from fulfilling its duties.

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14. COMPENSATION FOR SERVICES/ACTIVITIES PROVIDED TO AGENCY (a) Due to the necessity and desire to keep Habitat Plan implementation costs as low as possible, the Agency may contract for many goods and services. In procuring goods and services, the Agency will utilize a selection process that is fair, objective and impartial, and is intended to result in the selection of a provider that provides the best value and meets the needs of the Agency. The Parties acknowledge that they are not entitled to any rights or preferences in the Agency's selection process.

If a Party believes that it has been treated unfairly during any Agency selection process, it may invoke the dispute resolution process set forth in Section 15 of this MOU.
(b) If a Party provides services to the Agency, it may negotiate with the Agency to be compensated with cash or credits toward SCVHP Fees. The form of compensation may be a factor that the Agency considers during its selection process. (c) If a Party contracts with the Agency to provide land, services or perform other activities on behalf of the Agency, then any indemnity and defense responsibilities related to that arrangement shall be addressed in the agreement for the particular goods and services, and the indemnification and defense provisions in Section 12 of this MOU shall not apply.

15. DISPUTE RESOLUTION PROCESS
In addition to the other provisions of this MOU that require the Parties to engage in the dispute resolution process in this Section, any Party may request that the Parties voluntarily engage in the dispute resolution process set forth in this Section at any time and for any reason related to the Habitat Plan, Permits, Implementing Agreement or any matters related thereto. The intent of this provision is to provide an informal dispute resolution measure which is alternative to a court action.
(a) Informal Negotiations Before Mediation. Any negotiations the Parties may undertake to resolve disputes before Mediation is initiated are for settlement purposes only and are not binding. Any Party may notify any other Party of a disagreement or dispute regarding provisions of the Habitat Plan, Permits, Implementing Agreement or any matters related thereto. That notifying Party shall first request discussion among all the Parties. The dispute may be informally resolved by consensus of the Parties.

Only after proceeding through such an informal dispute resolution process described in this Section may a Party seek mediation as described in Section 15 (b). (b) Mediation.
(i) Non-Binding Nature of Mediation. If any dispute or issue related is not resolved through informal negotiations, the Parties agree to attempt to resolve the matter through mediation. Any mediation is voluntary, nonbinding, and intended to provide an opportunity for the Parties to arrive at a mutually agreeable solution.
(ii) Initiation of Mediation. Any Party may initiate mediation for any dispute or issue related to this MOU by submitting a written request for mediation to the other Parties involved in the dispute. The request for mediation shall contain a brief statement of the nature of the dispute or claim, and the names, addresses, and telephone numbers of those who will represent the Party submitting the request for mediation.

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(iii) Selection of Mediator. Within 14 days of receiving a request for mediation, the involved Parties shall meet and confer to select a mediator agreeable to the Parties. Any mediator selected shall have expertise in the area of the dispute and be knowledgeable about the mediation process. No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation.

Before accepting an appointment as mediator, the prospective mediator shall be required to disclose all circumstances likely to create a perception of bias or prevent a prompt meeting with the Parties. Upon receipt of such information, the Parties will meet and confer and decide whether to select another mediator.
(iv) Representation During Mediation. The Parties may be represented by persons of their choice, who shall have full authority to negotiate on behalf of the Party they represent. The names, addresses, and telephone numbers of such representatives shall be communicated in writing to all Parties and the mediator.
(v) Time and Place of Mediation. The Mediator shall set the time of each mediation session. The mediation shall be held at any convenient location within Santa Clara County that is agreeable to the mediator and the involved Parties. All reasonable efforts will be made by the Parties and the mediator to schedule the first session within thirty (30) days after selection of the mediator.
(vi) Identification of Matters in Dispute. At least 10 days before the first scheduled mediation session, each involved Party shall provide the mediator with a brief memorandum not longer than 10 pages setting forth its position with regard to the issues that need to be resolved. At the mediator's discretion, the memoranda may be mutually exchanged by the Parties. (vii) Authoritv of Mediator. The mediator shall not have authority to impose a settlement on the Parties, but will attempt to assist the Parties in reaching a satisfactory resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the Parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided the involved Parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the mediator or the Parties, as determined by the mediator. (viii) Privacv. Mediation sessions are private. The Parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the Parties and consent of the mediator. (ix) Confidentiality. Confidential information disclosed to a mediator by the Parties or by witnesses in the course of mediation shall not be divulged by the mediator or the Parties. All records, reports, and other documents and information produced during mediation shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or a judicial forum. The Parties shall maintain the confidentiality of the mediation and shall not rely on, or

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introduce as evidence in any arbitration, judicial or other proceedings any of the following: (a) views expressed or suggestions made by the other Party with respect to a possible settlement of the dispute; (b) statements made by the other party in the course of the mediation proceedings; (c) proposals made or views expressed by the mediator; or (d) whether the other Party had or had not indicated willingness to accept a proposal for settlement made by the mediator.
(x) No Record of Proceedings. There shall be no stenographic or other record of the mediation proceedings.
(xi) Termination of Mediation. The mediation may be terminated in any of the following ways; (a) by the execution of a settlement agreement by the Parties; (b) by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or (c) by a written declaration of any Party to the mediation that it is terminating the mediation proceedings. (xii) Interpretation and Application of These Mediation Provisions. The mediator shall interpret and apply these mediation provisions insofar as they relate to the mediator's duties and responsibilities.
(xiii) Expenses. The expenses of witnesses for each Party shall be borne by the Party producing the witnesses. All other expenses of the mediation, including required travel and other expenses of the mediator, the expenses of any witness called by the mediator, and the cost of any proofs or expert advice produced at the direct request of the mediator, shall be the sole responsibility of the Agency.

16. TERMOFMOU
This MOU shall remain in effect until it is terminated by mutual agreement of the Parties.

17. AMENDMENT OF MOU
This MOU may be amended only by written agreement executed by all of the Parties.

18. POST-PERMIT ISSUES
The Parties anticipate that the Agency will be dissolved at the end of the 50-year Permit term and that one or more successor entities will need to be identified to fulfill the implementation responsibilities that will continue in perpetuity. In light of this, the Parties agree as follows:

By no later than the beginning of year 45 of the Permit term, the Parties will begin the process of identifying all implementation responsibilities that will continue beyond the 50-year Permit term and related funding requirements (e.g., endowment for continuing obligations related to Reserve System lands); By no later than the end of year 48, the Parties will have identified one or more successor entities to fulfill the implementation responsibilities beyond the 50-year Permit term and a transition plan will have been completed; and

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By no later than the end of year 49, agreements with the successor entity(ies) will be in place and implementation of the transition plan will have begun.

19. REMEDIES FOR BREACH
If a Party shall default on any obligation contained in this MOD, such default shall not excuse any Local Partner from fulfilling its respective obligations under this MOD. Any Party shall be entitled to pursue any and all legal and equitable remedies against any other Party in response to any alleged default under this MOU. Any and all of the remedies provided to the Parties hereunder or by any law now or hereafter enacted are cumulative and the exercise of one right or remedy shall not impair the right of the Parties to any or all other remedies.

20. SEVERABILITY
If any court determines that a part, term, or provision of this MOU is illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof shall not be affected by that determination.

21. SUCCESSORS; ASSIGNMENT
This MOU shall be binding upon and shall inure to the benefit of the successors of the Parties. No Party may assign any right or obligation hereunder without the consent of the other Parties.

22. NOTICES
Notices to the Parties shall be sufficient if delivered as follows; County of Santa Clara
County Executive
70 W. Hedding Street, 11lh Floor, E. Wing
San Jose, OA 95110
City of San Jose
City Manager
200 East Santa Clara St.

San Jose, CA 95113
City of Gilrov
City Administrator
7351 Rosanna St.

Gilroy, CA 95020
City of Morgan Hill
City Manager
17575 Peak Avenue
Morgan Hill. CA 95037
Santa Clara Valley Water District
Chief Executive Officer
5700 Almaden Expressway
San Jose, CA 95118
Santa Clara Valley Transportation Authority
General Manager

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3331 North First St.

Building B. Second Floor
San Jose, CA 95134
Santa Clara County Open Space Authority
General Manager
6980 Santa Teresa Boulevard, Suite 100
San Jose, CA 95119
With a copy to:

County Counsel
County of Santa Clara
70 W. Hedding St., 9th Floor, E. Wing
San Jose, CA 95110
San Jose City Attorney
City of San Jose
200 East Santa Clara St.

San Jose, CA 95113
Gilroy City Attorney
City of Gilroy
7351 Rosanna St.

Gilroy, CA 95020
Morgan Hill City Attorney
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
District Counsel
Santa Clara Valley Water District
5700 Almaden Expressway
San Jose, CA 95118
General Counsel
Santa Clara Valley Valley Transportation Authority
3331 North First St.

San Jose, CA 95134
Open Space Authority Legal Counsel
Wittwer & Parkin, LLP
147 S. River St.. Suite 221
Santa Cruz, CA 95060

23. SECTION HEADINGS
All Section headings contained herein are for reference only and are not intended to define or limit the scope of any provision of this MOD.

24. COUNTERPARTS
This MOU may be executed in counterparts and so executed shall constitute one MOD which shall be binding upon all Parties. A photocopy of the fully executed MOU shall have the same force and effect as the original.

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25. SIGNATURES
By affixing his/her signature below, each of the persons signing this MOD warrants and represents that he/she has read and understands the MOD, that he/she is authorized to sign this MOU, and that the Party on behalf of whom he/she signs agrees to be bound by its terms.

COUNTY OF SANTA CLARA
By; Date: ifXjil
Jeffrey V. S
APPROVED AS TO FORM;
County Counsel
Orr/ P . |^-o rlo y A ,
By:

Lizanne^R
ounty Executive
1 Date; (3
eynolds ounty Counsel
t)e|7u.^y

CITY OF SAN JOSE
By; Date;
Debra Figone, City Manager
APPROVED AS TO FORM;
Richard Doyle, City Attorney
By; Date;
Vera Todorov, Senior Deputy City Attorney

CITY OF GILROY
By; Date;
Thomas J. Haglund, City Administrator
APPROVED AS TO FORM;
By: Date:

Linda Callon, City Attorney

CITY OF MORGAN HILL
By; Date;
J. Edward Tewes, City Manager
APPROVED AS TO FORM;
By; Date;
Danny Wan, City Attorney

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25. SIGNATURES
By affixing his/her signature below, each of the persons signing this MOU warrants and represents that he/she has read and understands the MOU, that he/she is authorized to sign this MOU, and that the Party on behalf of whom he/she signs agrees to be bound by its terms.

COUNTY OF SANTA CLARA
By; Date:

Jeffrey V. Smith, County Executive
APPROVED AS TO FORM:

Lori E. Pegg, Acting County Counsel
By: Date:

Lizanne Reynolds, Acting County Counsel
CITY ;AN JOSE
V/
Date: ////?
£•* -1
Debra Figone, Manager
APPROVED AS TO FORM:

Richard Do- Attorn'
Date: ^ llfU By: i)^
Vera Todorov, Senior Deputy City Attorney

CITY OF GILROY
By: Date:

Thomas J. Haglund, City Administrator
APPROVED AS TO FORM:

By: Date:

Linda Callon, City Attorney

CITY OF MORGAN HILL
By: Date:

J. Edward Tewes, City Manager
APPROVED AS TO FORM:

By: Date:

Danny Wan, City Attorney

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COUNTY OF SANTA CLARA
By: Date;
Jeffrey V. Smith, County Executive
APPROVED AS TO FORM:

Lori E. Pegg, Acting County Counsel
By: Date:

Lizanne Reynolds, Acting County Counsel

CITY OF SAN JOSE
By: Date:

Debra Figone, City Manager
APPROVED AS TO FORM:

Richard Doyle, City Attorney
By: Date:

Vera Todorov, Senior Deputy City Attorney
c £ OY
By: Date:

Thomas J. Haglund, City Administrator
APPROVED AS TO FORM:

By: Date:

Linda Callon, City Attorney

CITY OF MORGAN HILL
By: Date:

J. Edward Tewes, City Manager
APPROVED AS TO FORM:

By: Date:

Danny Wan, City Attorney

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Item IX.A.

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25. SIGNATURES
By affixing his/her signature below, each of the persons signing this MOD warrants and represents that he/she has read and understands the MOD, that he/she is authorized to sign this MOD, and that the Party on behalf of whom he/she signs agrees to be bound by its terms.

COUNTY OF SANTA CLARA
By: Date;
Jeffrey V. Smith, County Executive
APPROVED AS TO FORM;
Lori E. Pegg, Acting County Counsel
By; Date;
Lizanne Reynolds, Acting County Counsel

CITY OF SAN JOSE
By; Date;
Debra Figone, City Manager
APPROVED AS TO FORM;
Richard Doyle, City Attorney
By; Date;
Vera Todorov, Senior Deputy City Attorney

CITY OF GILROY
By; Date;
Thomas J. Haglund, City Administrator
APPROVED AS TO FORM;
By; Date;
Linda Callon, City Attorney

CITY OF HILL
By; Date; 'jVL
Steve Kymer, City Manager
APPR S TO FORM;
By; Date;
Renee Gurza, City Attorney

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SANTA CLARA VALLEY WATER DISTRICT
By: Date:

BeauGoTdi ief Executive Officer
APPROVED AS TO FORM:

Stanly Yamamoto. District Qouosi
* V
By: Date: zy/j
/
, ^-^dwarcTErYates. Senior Assistant District Counse
"x

SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
By: Date:

Michael T. Burns, General Manager
APPROVED AS TO FORM:

By: Date:

Robert Fabeia, General Counsel

SANTA CLARA COUNTY OPEN SPACE AUTHORITY
By: Date:

Andrea Mackenzie, General Manager
APPROVED AS TO FORM:

By: Date:

William P. Parkin, Legal Counsel
SANTA CI^ARA VALLEY HABITAT AGENCY
By: ) UL-CKA Date: "S
APPROVED AS FORM:
\
By: Date: SMI>/3

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SANTA CLARA VALLEY WATER DISTRICT
By: Date;
Beau Goldie, Chief Executive Officer
APPROVED AS TO FORM:

By: Date:

Stanly Yamamoto, District Counsel

SANTA CLARA, VALLEY TRANSPORTATION AUTHORITY
By: Date: //
Michael T. Burns, Qeneral Manager
APPROVED AS TO FORM:
a, General Counsel
C jS' By: Date: ^ 11 13
Robfert Fa

SANTA CLARA COUNTY OPEN SPACE AUTHORITY
By: Date:

Andrea Mackenzie, General Manager
APPROVED AS TO FORM:

By: Date:

William P. Parkin, Legal Counsel

SANTA CLARA VALLEY HABITAT AGENCY
By: Date:

APPROVED AS TO FORM:

By: Date:

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SANTA CLARA VALLEY WATER DISTRICT
By; Date:

Beau Goidie, Chief Executive Officer
APPROVED AS TO FORM:

Stanly Yamamoto, District Counsel
By: Date:

Edward E. Yates, Senior Assistant District Counsel

SANTA CLARA VALLEY TRANSPORTATION AUTHORITY
By: Date:

Michael T. Burns, General Manager
APPROVED AS TO FORM:

By: Date:

Robert Fabela, General Counsel

SANTA CLARA COUNTY OPEN SPACE AUTHORITY
Andrea Mackenzie, General MaQ^ger
By: Date: jV/T/ZS
'
APPRO/VElJlAS TO FORM:

By: Date: Hh/iz
iHjam P. Parkin, Legal Counsel

SANTA CLARA VALLEY HABITAT AGENCY
By: Date:

APPROVED AS TO FORM:

By: Date:

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Santa Clara County Open Space Authority
Principles of Participation
in the Santa Clara Valley Habitat Plan
These principles are to be used later for a side agreement between the Santa Clara County Open Space Authority (OSA) and the Santa Clara Valley Habitat Plan (Habitat Plan, or Plan) Implementing Entity, once the Entity is established:
1) The OSA states its willingness to cooperate and partner with the Habitat Plan Implementing Entity to help implement the Plan successfully. The OSA recognizes that acquisition of habitat is consistent with its mission as an open space agency. 2) The OSA is not a permittee under the Habitat Plan. However, the OSA has the option to apply for take authorization under the Plan as a Participating Special Entity. To receive this take authorization, the OSA would follow the procedures outlined in the Habitat Plan, including approval by the Implementing Entity and the Wildlife Agencies. To anticipate this, the estimated impacts of OSA activities on the covered species will be included in the Plan. Any Habitat Plan fees due would be offset by the value of land acquired by the OSA to date and incorporated into the Habitat Plan Reserve System. 3) The OSA has no specific funding commitment towards the Habitat Plan. However, the OSA commits to working with the Habitat Plan Implementing Entity for the duration of the permit to pursue joint land acquisition that is mutually beneficial to each agency on a caseby-case basis and help the Implementing Entity meet its local land acquisition commitments in cooperation with other local agencies, non-profit organizations, and foundations. The OSA intends to leverage its funds to acquire an estimated 5,000 acres for inclusion in the Reserve System, and will make efforts to acquire an additional 2,500 acres for the Reserve System, if feasible. Roles for the OSA in land acquisition may include cooperating on land management issues, brokering a land purchase but not owning it, contributing lands to a Habitat Plan acquisition and owning the land, or owning and managing land acquired by the Implementing Entity in exchange for management funding. The OSA's acquisitions and funding that is ultimately committed to the Habitat Plan are not to be used for mitigation, but are to be allocated instead to species recovery and conservation on an ecosystem-wide basis under the Natural Community Conservation Plan (NCCP) portion of the Habitat Plan. 4) Any lands that the OSA acquires in partnership with the Implementing Entity would meet the requirements of the Habitat Plan including a conservation easement and incorporation into a reserve unit management plan. The conservation easement would require management in perpetuity by the Implementing Entity consistent with the Habitat Plan and allow for compatible public access such as unpaved multi-use trails. The OSA does not expect to be directly reimbursed for the cost of land acquisition or conservation easement dedication for land that it continues to own; the OSA's evaluation of projects on a case-bycase basis allows the OSA to consider the financial benefits the OSA will receive through grant funding under the Plan and funding for management before granting a conservation easement.

Principals of Participation | Approved by the Board: September 9, 2010 | Amendment Approved: September 8, 2011

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Habitat Plan Overview and Amendment Update
May 2025
1 TO: Morgan Hill City Council
FROM: Gerry Haas, Principal Planner
SUBJECT: Santa Clara Valley Habitat Plan Overview and Amendment Update RECOMMENDED ACTION: Approve the Santa Clara Valley Habitat Agency proceeding with a proposed amendment to the Santa Clara Valley Habitat Plan pursuant to the 2012 Memorandum of Understanding.

INTRODUCTION:

For the past ten years, the Santa Clara Valley Habitat Agency (Habitat Agency) has led an ambitious conservation effort, quietly protecting valuable natural habitat throughout the County to benefit special status plant and wildlife species, several of which exist only in this valley. The permanent protection of 15,000 acres of conservation land is a local success story implemented by the Habitat Agency, but impossible without the support and partnership of the six co-permittee agencies including the County of Santa Clara, the Cities of San Jose, Morgan Hill and Gilroy, Valley Water and the Santa Clara Valley Transportation Authority. The conservation success is landscape-scale, occurring on large swaths of mostly undeveloped land and with a willing buyer/willing seller formula. In some cases, land is sold to the Habitat Agency. In others, a conservation easement is purchased, which may allow for existing uses such as grazing, but also restricts development and facilitates better land management, which is focused on improving habitat conditions for local plant and wildlife species.

The conservation land is managed for enhancement of natural communities. Wetlands and other aquatic resources, which have been negatively impacted by past human activities are restored to improve water quality, water storage and habitat benefits for species which rely on wetlands. To date, the Habitat Agency has restored nearly four miles of streams, 10 acres of sycamore alluvial woodland, six acres of riparian habitat, and 8.9 acres of perennial and seasonal wetlands and ponds . The Habitat Agency is contributing to a better understanding of the natural resource values in the County through studies, research, and monitoring. It uses this knowledge to better manage the landscapes in the hope that they will provide legacy benefits for this generation and all to come.

The purpose of this report is to explain how and why this conservation is taking place. To define the Habitat Agency in the context of its formation, function, and future. To acknowledge the achievements of its goals and objectives. And finally, to present the purpose and need for an update to its governing document, the Santa Clara Valley Habitat Plan.

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Habitat Plan Overview and Amendment Update
May 2025
2 BACKGROUND:

A Habitat Conservation Plan/Natural Communities Conservation Plan (HCP/NCCP) may be required when a project will result in direct take of a listed threatened or endangered species. The intent of the HCP/NCCP it to provide mitigation for the take when it occurs. “Take” is defined separately by state and federal wildlife agencies, but generally refers to a negative effect on a species of plant or wildlife that is listed on the Federal Endangered Species Act (FESA) or the California Endangered Species Act (CESA). An HCP/NCCP was required in July 2001 as part of State and Federal approval of several local transportation projects (U.S. 101 widening from San Jose to Morgan Hill, the U.S. 101/Bailey Avenue Interchange, Highway 85/U.S. 101 Interchange, and the Coyote Valley Research Park Plan). Since several projects were being required to complete an HPC/NCCP at the same time, and since there were many more projects in the foreseeable future which would face the same requirement, it was decided that the best approach would be to prepare a single large-scale plan to accommodate broad development in Santa Clara County.

Four local agencies (Valley Transportation Authority [VTA], County of Santa Clara, City of San Jose, and Valley Water) were subject to the initial requirement and jointly committed to the California Department of Fish and Wildlife (CDFW) and the U.S. Fish and Wildlife Service (USFWS) to develop the HCP/NCCP. Initial work included development of a work plan and approval in 2004 of a Memorandum of Understanding among the four original co-permittee agencies (Co-Permittees). The four original copermittees were joined in 2005 by the cities of Gilroy and Morgan Hill. The six co-permittees then signed a Planning Agreement with CDFW and USFWS in October 2005. Intense technical work on the Santa Clara Valley HCP/NCCP, now known as the Santa Clara Valley Habitat Plan (Plan), started in 2005.

In 2013, the Plan was approved, along with the formation of the Santa Clara Valley Habitat Agency (Habitat Agency) as a Joint Powers Authority (JPA) to oversee and implement the Plan. The JPA is managed by a Governing Board, consisting of eight members: two representatives of each of the four participating jurisdictions (the cities and the County). The Governing Board has two primary roles:
adoption of Plan fees and approval of the annual budget. The Habitat Agency has a second board, the Implementation Board, which is responsible for making financial recommendations to the Governing Board, contracting approvals, land acquisition and grant funding review, approval of annual reports and additional tasks prior to submittal to the USFWS and CDFW (together, the wildlife agencies). The Implementation Board is composed of 11 members, consisting of two representatives from each of the participating jurisdictions, two representatives for Valley Water, and a single representative for VTA.

The Plan’s HCP component is consistent with the FESA, which allows local agencies to approve projects in endangered species’ habitats in exchange for identifying mitigation strategies based on a coordinated landscape scale plan for conserving endangered species and related natural habitat.

The Plan’s NCCP component is the State counterpart to the Federal HCP and provides a means of complying with the CESA. The NCCP goes farther than the HCP in that it addresses not only mitigation of development impacts but also includes actions necessary to promote the long-term restoration and enhancement of species habitat areas, known as natural communities.

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3 The purpose of an HCP/NCCP is to offer a more efficient process for protecting the environment and processing state and federal applications for local projects that may affect endangered species and natural habitat. Prior to the Plan, public entities and private developers evaluated projects individually.

Endangered species regulations may require consultation with a variety of federal and state regulators to mitigate impacts to species and habitat loss. This can be a lengthy process for project proponents, involving considerable time and money and with uncertain outcomes.

Furthermore, mitigation in the absence of an HCP/NCCP does less to protect the environment because of its piecemeal approach, resulting in fragmented habitats that are less ecologically viable and more difficult to manage. As endangered species protections continue to expand in response to increasing development impacts, movement of non-native invasive species and climate change, there is a mounting need to provide an assured and balanced structure for development and resource conservation at a regional scale that can be sustained indefinitely. An HCP/NCCP meets this need by providing clear project costs, avoiding project delays due to consultation or permitting for impacts to protected plants or wildlife and creates a local mitigation solution that results in a comprehensive landscape scale conservation program which benefits all the co-permittees.

Since 2013, the Plan has provided instant and automatic take authorization for all covered projects within the Plan area with the completion and submittal of a Private Development Application Form or a Public Reporting form, and the payment of land cover and specialty impact fees.

PLAN IMPLEMENTATION:

The Habitat Plan programmatic take permits are shared by all co-permittees and are issued with the understanding that generally marginal habitat is being impacted, while better habitat is being protected, away from the threat of development. The Plan’s Conservation Strategy makes this expectation clear as it strives for recovery of protected species locally and the presence of protected species within the Reserve System of land (all land protected by the Habitat Agency). The loss of some species in areas that are more impacted is offset by protecting, then improving the quality of habitat in the Reserve System. In this sense, the Plan is managed like a bank account. For every acre of land impacted by permanent development, one or more acres must be permanently protected from future development through the purchase of land or a conservation easement by the Habitat Agency. The ratio of acres protected to acres impacted varies by land cover type. Additional acreage is required to be protected and restored when especially sensitive resources are impacted. In each fiscal year (July 1 through June 30), the Habitat Agency documents total covered project impacts which have accrued within the Plan area (debits) and acres of land acquired or protected for conservation as well as restoration or enhancement actions completed (credits). Demonstrating compliance with the Plan through an annual report ensures that the Habitat Agency is keeping up with the Plan’s conservation strategy and that the take authorization can continue throughout the permit term (50 years from inception). All annual reports are accessible on the Habitat Agency website: https://scvhabitatagency.org/328/Annual-Reports.

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4 Impacts and Take Authorization
Since Plan adoption, the Habitat Agency and Co-Permittees have developed workflows and processes to improve efficiency of reporting impacts and documenting compliance with the Plan’s requirements.

Primarily documented in annual reports, the impacts accrued are compared with the conservation and restoration achieved with the funding provided through the assessment of land cover fees for those same impacts. Since 2013, a total of 410 individual projects have received automatic take coverage under the Habitat Plan in Santa Clara County. Cumulative permanent land cover impacts for all projects covered by the Plan in the first ten years of implementation total 2,712 acres. In that same period, 3,027 linear feet of streams (0.57-mile) were permanently impacted. The Plan assumestotal land cover impacts for the entire 50-year permit term to be 17,975 acres. As the Plan is ten years old, the assumption is that 3,595 acres of land would have been permanently impacted by this time. The actual impact figure is 883 acres fewer than assumed, and this difference, which may likely represent an overestimation of impacts, is one of the issues which will be addressed in the proposed Plan amendment as discussed later in this report.

Of the 410 projects covered by the Plan as of the date of this report, 232 were private development activities, 154 were public projects, and 24 were projects conducted by Participating Special Entities (PSE’s), outside agencies who voluntarily sought coverage under the Plan to streamline their projects.

All of these projects and activities received automatic take coverage for impacts to listed species, meaning there was no delay for project review or permitting by USFWS or CDFW. The Plan also ensured certainty for these projects in terms of cost and conditioning. Development and construction plans could be drafted and completed with the knowledge that abiding by the Plan was all that was necessary to avoid consultation with the wildlife agencies.

Conservation
The Habitat Plan’s Conservation Strategy describes how covered activity impacts are mitigated primarily through the conservation (protection) of land. Land which is acquired through the purchase of fee title or through a recorded conservation easement becomes part of the Reserve System of Land (Reserve System). The Reserve System includes land protected in four of the five major watersheds in the Plan area. The Habitat Agency’s early focus on acquiring land of high conservation value has resulted in a mosaic of protected land, which includes over 15,000 acres of habitat occupied by one or more of the Plan’s covered species. This conservation land exists in various locations across the Plan area extending from San Jose in the north, down to the Pajaro River south of Gilroy and in both mountain ranges that flank the valley. The Habitat Agency is active in managing these newly protected lands. General land management actions are necessary, such as installation and maintenance of fences, roads, culverts, and irrigation infrastructure; vegetation management; removal of debris, aging infrastructure and other nuisances; and property access management. Beyond those responsibilities applicable to all land management entities, the Habitat Agency has additional requirements to enhance the habitat within the Reserve System to make it more suitable for covered species. Enhancement includes installing and supporting native plant species, removal and control of invasive and exotic species and activities focused on improving ecosystem health.

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5 In a demonstration of the Habitat Agency’s commitment to the Conservation Strategy, land has been protected at an impressive rate, averaging over 1,400 acres per year for the first ten years of implementation. Many acres of the highest value conservation lands in the most critical locations have already been secured. Continuing at this rate will give all protected plant and wildlife species the greatest chance at recovery. A current map of the Reserve System is available on the Habitat Agency website at this link: https://scv-habitatagency.org/213/Reserve-System With the Reserve System now protecting 15,000 acres of land, the Plan is a full 40% ahead of its conservation target. By this time in Plan implementation, it was anticipated that only 9,000 acres would have been protected. This land acquisition success is due in part to impact fees being collected, which fund the Habitat Agency operations and land management, while allowing staff to focus on state and federal grants for land acquisition. But as mentioned above, with a reduction in total acres of land being impacted than was anticipated, there is a corresponding reduction in fees being collected. This challenge, and a recommended solution to it, is discussed in the Plan Amendment Funding and Future Costs section below.

Restoration and Enhancement
The habitat restoration requirements of the Plan are intended to offset impacts to aquatic resources resulting from development in the Plan area, and to aid in the recovery of the species which rely on those resources. Since 2013, the Habitat Agency has completed seven habitat restoration projects in ponds, wetlands and stream corridors. These restoration sites are located on the east side of Santa Clara Valley (Diablo Range – Coyote watershed), on the west side of the Valley, (Santa Cruz Mountain foothills – Alamitos watershed), and also on valley floor lands in the Pacheco Creek and Pajaro watersheds. Cumulatively, restoration projects have restored 9 acres of riparian woodlands, 9 acres of sycamore alluvial woodlands, 8.9 acres of perennial and seasonal wetlands and ponds, and 3.4 miles of streams. Restoration projects have improved habitat for 8 of 18 covered species— western burrowing owl, California red-legged frog, California tiger salamander, western pond turtle, least Bell’s vireo, tricolored blackbird, Mount Hamilton thistle, and Coyote ceanothus. One project improved a regional wildlife connection between the Diablo Range and Santa Cruz Mountains, and another one enhanced wildlife movement under SR-152 In addition to providing benefits to covered plant and wildlife species, the habitat improvements realized through effective restoration benefits all plant and wildlife species occurring in the vicinity of these projects.

In addition to restoration projects, general habitat conditions have been improved throughout the Reserve System of land through focused and careful land management practices. Managing grasslands to benefit our covered plant species and Bay checkerspot butterfly is an ongoing task occurring on thousands of acres of protected land. Clearing trash and debris from the landscape, as well as targeting invasive plant and wildlife species for removal ensures the best chances of all covered species to survive and thrive in the Reserve System.

Monitoring and Research
In addition to funding significant land conservation, restoration and enhancement, the Habitat Agency has used available funding to conduct research on covered species, wildlife connectivity and monitoring

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6 of resources. Several studies, ranging from species surveys and occurrence tracking for covered plants (smooth lessingia, jewelflowers and Tiburon paintbrush) and herptofauna (California red-legged frog and California tiger salamander) to wildlife movement (mountain lion, tule elk) to adaptive management based on tracking impacts following wildfire (Coyote Ridge) are playing an important role in the Habitat Agency’s understanding of the current and changing conditions of the landscape within the Plan area. Links to early research and monitoring projects can be found on the Habitat Agency’s website, which is updated regularly.

Plan Implementation Success
As described in the Annual Reports, the Habitat Agency is meeting most of its early success criteria. It exceeds the Plan’s proportional requirements for land protection and habitat restoration, which are the key and foundational metrics for gauging such success. Land acquisition and restoration are, in fact, the primary means of determining that mitigation has truly been provided for impacts which have occurred in the past ten years. Not only has the Habitat Agency protected 40% more acreage than required at this point in implementation, but it has also protected more than 100% of the minimum required acres of all specified natural communities on which our covered species rely. By nearly all measures, the Habitat Agency is outperforming its expectations to the collective benefit of the copermittees.

PROPOSED MAJOR AMENDMENT:

As described above, careful monitoring of covered projects, the efficient use of fees and grants to advance the Conservation Strategy, and detailed compliance reporting, the Habitat Agency has been successful in meeting early goals and objectives of the Plan, particularly for land acquisition and restoration. However, continued success means that some components of the Plan must be adjusted from what is currently allowed or required. For example, covered activity impacts are approaching take limits specified in the Plan for the burrowing owl, kit fox and other species and habitat types. These take limits can only be adjusted through a formal amendment to the Plan. The Plan does not cover all special status species within the permit area as some species like Swainson’s hawk are expanding their range, while others already in the area are now candidate species (mountain lion and western monarch) for listing under ESA or CESA. For the Plan to remain useful and effective for the copermittees, new species must be added for coverage. Otherwise, project proponents will have to revert to the processes that were in place prior to the Plan approval, whereby certain species and habitats are covered and some are not, and consultation with regulatory agencies and additional mitigation could become necessary.

The first few years of Plan implementation have required several modifications, clarifications, and interpretations to address ambiguities and strengthen policy. Revising some Plan sections would make it easier to understand for new staff members of the co-permittee agencies who help administer the Plan. Also, the success of the Plan has led to discussions about whether more of the land within Santa Clara County can be covered for impacts or considered for enrollment in the growing Reserve System of land. This would require an expansion of the existing Plan boundary. All these issues, plus several more detailed below, have driven the Habitat Agency to prepare a Plan amendment.

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7 A formal public draft of the entire proposed Plan amendment is not yet available, as final agreement on the individual co-permittee needs and preferences has not yet been reached. This report is intended to present the proposed changes to stakeholders in advance of the actual consideration of a Plan amendment. A list of the proposed changes to the Plan is provided below. A more detailed explanation of the more complex or novel changes will follow this list. • Add new species for coverage, including:
o Crotch’s bumblebee
o Western monarch butterfly
o Swainson’s hawk
o Central coast mountain lion
o American badger
o Loggerhead shrike
o Large marble butterfly
• Expand the Plan Area boundary to the northwest to provide coverage for public projects being conducted by the Co-Permittees on land they own.
• Expand the Plan Area boundary to the northeast for conservation only, allowing for the potential enrollment of land into the Reserve System.
• Eliminate the Private Development Areas Map to expand coverage to all private development projects occurring on parcels over two acres in size.
• Add Valley Water’s Stream Maintenance Program elements as covered activities. • Add the California Vegetation Treatment Plan components as covered activities and provide for instances where vegetation management may be considered a beneficial action. • Streamline annual mowing coverage to address impacts to new pollinator species. • Formally incorporate guidance and determinations made by the Habitat Agency through past Clarifications and Interpretations of the Plan.
• Reconsider status of the Burrowing Owl Conservation Strategy and request additional permanent take acres of occupied habitat.
• Begin tracking land cover impacts at the natural community level as opposed to specific land cover types identified in the Plan.
• Consider revising how land cover impacts are tracked to be consistent with more recent regional HCP/NCCPs, to allow more flexibility in take limits for less sensitive land cover types, and to reduce application and reporting levels of effort. • Reset temporary impacts clock every five years to avoid non-compliance with temporary take limits to habitat.
• Add critical habitat analysis for foothill yellow legged frog, western pond turtle, and any other species for which critical habitat is established while the Habitat Plan amendment is under way.
• Allow alternatives to a conservation easement as the only mechanism to protect land owned by the Habitat Agency.
• Seek restoration credit for passive actions such as fencing to restrict cattle or pigs from sensitive habitats.

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8 • Remove smooth lessingia survey requirements (due to success of protection by the Habitat Agency).
• Remove project-specific San Joaquin kit fox survey requirements by co-permittees in favor of a single annual survey for the species conducted by the Habitat Agency. • Update Condition 11 related to stream setback exceptions for development. This would include elimination of the absolute minimum setback because it is unenforceable by the Habitat Agency.
• Add bird-safe and exterior lighting designs as avoidance measures, if possible.

The following six proposals are described in more detail below:

1. New Species Proposed for Coverage
Amending the Plan to address early challenges in implementation offers the opportunity to reevaluate the covered species list and propose new species for coverage. Periodic re-evaluation is important and necessary when considering the many environmental threats facing an expanding list of local plants and wildlife. In the past ten years, several new species have been proposed for listing under CESA and ESA. If any of these species become listed, but are not covered by the Plan, then projects and activities affecting these species may require additional consultation and mitigation from project proponents. If that should occur, it would undermine the assurances of the Plan for expeditious project review and certainty of agreed avoidance measures and impact fees.

Species considered in the evaluation process for the Habitat Plan amendment consisted of specialstatus species:
• That were not previously evaluated in the original Habitat Plan; • With a change (or proposed change) in regulatory listing status; • With range expansion into the study area;
• With the potential to be impacted by newly identified covered activities; and/or • That were of interest for take coverage to the Habitat Agency or the Technical Advisory Committee (TAC).

Special-status species which were evaluated and excluded in the original plan because they did not meet any of the five criteria above were not reevaluated. Once selected for evaluation, each new species was assessed based on a set of criteria described in the original Habitat Plan (Section 1.2.4, Covered Species, subheading Covered Species Criteria). These criteria are as follows:
a. Range – the species is known to occur in the Plan area based on credible evidence, or is expected to occur in the Plan area sometime during the permit term (e.g., range expansion or reintroduction)
b. Status – the species is: listed or proposed for listing under the ESA; listed or candidate for listing under the CESA; listed as rare under the Native Plant Protection Act; or is expected to be listed under one of these acts within the permit term.
c. Impact – the species or its habitat would adversely be affected by covered activities

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9 d. Data – sufficient data on the species’ life history, habitat requirements and occurrence in the Plan area are available to adequately evaluate the impacts on the species and develop conservation measures to mitigate those impacts.

For species that met all the above criteria, a final screening criterion was whether coverage for the species is deemed necessary by the Habitat Agency and its co-permittees. For example, if there is interest in adding a species with a low potential to meet some of the above criteria but the species generally fit within the existing conservation strategy, will benefit from inclusion in the Plan, and will not significantly increase the cost to implement the Plan, then it could be included as a covered species.

Based on the above criteria, the following list of the seven species is currently being proposed for coverage under the Plan amendment.

I. Western monarch butterfly (Danaus Plexippus)
This species occurs widely as migrants in the Plan area and some breeding is known, though overwintering sites are not known to occur in the Plan area. Following decades of decline in abundance, the USFWS determined in 2020 that listing the species in the ESA as either threatened or endangered is warranted but precluded pending other higher priority listing considerations. This means the species remains a candidate for listing and on an annual basis, listing is reconsidered. A final listing decision is possible in 2024. A conservation strategy for this species would likely consist of protecting and enhancing suitable habitat in many locations and elevations within the Plan area. As a pollinator, it may be impacted wherever its host plant (milkweed) occurs. Because milkweed is ubiquitous in the Plan area, many projects would have the potential to impact this species. A conservation strategy for monarch would include land protection and enhancement.

II. Crotch’s bumblebee (Bombus crotchii)
This species occurrence in the Plan area is becoming better understood through increased interest and documentation of sightings by biologists and the general public, who are utilizing new software that can confirm species identification. It has been extirpated from most of its historic range, and a petition for ESA listing was submitted in 2018 and resubmitted in 2021 after litigation over the listing of invertebrates resulted in a decision that invertebrates can be listed under the ESA. If covered by the Plan through an amendment, a conservation strategy would be very similar to the one being developed for monarch butterfly. In fact, it is possible that a single conservation strategy for pollinators would benefit many of them. Land protection would be similar, as would enhancement actions.

III. Large marble butterfly (Euchloe ausonides ausonides) This species was petitioned for listing as endangered under the ESA in December 2023. It occurs in the Plan area but is not well understood. Its host plants are mustards, including both native and introduced species. Although it does not meet all the criteria for coverage, its inclusion in the Plan would fit well with the overall conservation strategy and only habitat enhancement is anticipated to be required to mitigate potential impacts to this species.

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10 IV. Swainson’s hawk (Buteo swainsoni)
This species has recently begun breeding in the Plan area. The species range is expanding and breeding is expected to persist and be consistent from year to year. The species is listed as threatened under the CESA and protected by the Migratory Bird Treaty Act (MBTA) and the Raptor Act. However, when a project may result in impacts to this species, the only path forward currently is through consultation with one or both wildlife agencies. Coverage under the Plan would avoid the need for consultation and streamline permitting when nest sites are threatened.

V. Loggerhead shrike (Lanius ludovicianus)
This species occurs in the Plan area but is not abundant. CDFW considers this bird to be a species of special concern, and due to the species threats from development and land conversion, it has a moderate to high potential to become listed in California within the remainder of the permit term. Like many new species being proposed for coverage through the Plan amendment, loggerhead shrike would benefit from land conservation being implemented by the Habitat Agency. If covered, pre-construction surveys would be required as they are for other avian species covered by the Plan or the MBTA.

VI. Central coast mountain lion (Felis concolor)
This species occurs widely within the Plan area. In the fall of 2022, the Central Coast Distinct Population Segment (DPS) was proposed for CESA listing. This is primarily due to habitat fragmentation and infrastructure preventing this sub-species from moving between the Santa Cruz Mountains and the Diablo Range. The inability to freely move between the two ranges has resulted in an isolation of the DPS from the larger genetic pool in the Diablo Range. This species will benefit from ongoing land conservation, as well as the enhancement actions within and outside the reserve system to facilitate movement across roads and other infrastructure.

VII. American badger (Taxidea taxus)
Like the mountain lion, the American badger occurs widely throughout the Plan area and is similarly impacted by habitat fragmentation. Roadside mortality of this species is high in the Plan area, especially in the Pacheco and Pajaro watersheds. The Amercian badger will continue to benefit from land conservation and improvements to existing road under crossings, such as culverts or bridges.

2. Reduction in survey requirements/commitments for currently covered species Reducing the survey requirement areas for least Bell’s vireo and tricolored blackbird based on updated habitat mapping, which more narrowly defines their known habitat types, will reduce the cost and effort associated with this requirement. Similarly, the Habitat Agency has proposed, and the wildlife agencies have agreed to eliminating project-specific wildlife surveys for kit fox in lieu of the Habitat Agency funding annual surveys for the species in select locations. The wildlife agencies have also agreed to eliminate survey requirements for smooth lessingia due to early conservation success for that species by the Habitat Agency. Through successful protection of known occurrences, tens of millions

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11 of these plants have room for continued viability on thousands of acres of protected habitat within the Reserve System.

3. Increased take limits for certain habitat types
Although the cumulative impacts to date have been lower than anticipated, there are some habitat types which have been converted at a faster rate than others. The Plan take limits apply to both permanent and temporary impacts. Land cover types that are approaching or exceeding the Plan permanent take limits include coyote brush scrub and barren lands, not land cover types critical for any of our covered species. These two land covers have very narrow definitions and have been mistakenly applied as impacted, so the Habitat Agency proposes a change in the definition and an increase in the take limit for these two land covers. In addition, the Habitat Agency proposes to begin tracking impacts at a natural community level (a broader definition) in all cases except for sensitive land covers (i.e. serpentine, aquatic resources). This will avoid accrual of impacts to coyote brush and barren lands that is out of step with the impact rates of the rest of the land cover types.

Temporary land cover impacts that are approaching take limits or are accruing faster than anticipated include: freshwater marsh, pond, agriculture (general), and golf course/urban parks. Temporary impacts to land cover do not require land conservation or restoration for mitigation, and land cover fees are greatly reduced if projects can demonstrate the impacts are truly temporary. When the Plan was being developed, the co-permittees believed these impacts, largely inconsequential, would have take limits that would reset every few years. This proposal was not included in the final version of the Plan for reasons that are unclear. However, since these take limits apply to land cover impacts that are not significant, the Habitat Agency proposes to establish a five-year reset of temporary take limits to avoid confusion in the future regarding the need to address potential exceedance of any temporary take limit. The wildlife agencies have agreed to this approach.

Also proposed is the tracking of impacts based on their occurrence within a natural community as opposed to an individual land cover type. This approach would be consistent with more recent regional HCP/NCCPs, to allow more flexibility in take limits for less sensitive land cover types, and to reduce application and reporting levels of effort. Placer and Yolo Counties both track land cover impacts at the natural community level except for land cover types that need to be more closely tracked due to mitigation requirements (e.g., aquatic impacts). This would help resolve the coyote brush issue take limit exceedance and simplify compliance while not affecting the biological value of the Habitat Plan.

4. Beneficial actions and temporary impact monitoring
Another consideration for reporting of land management actions is incorporation of beneficial actions, such as those identified in the California Vegetation Treatment Program (CalVTP). CalVTP was developed by the California Board of Forestry and Fire Protection (a Governor-appointed body within the California Department of Forestry and Fire Protection [CalFire])to identify practices and procedures intended to reduce fuel loads and manage landscapes to be more fire resilient. Many actions mimic the effects of natural fire, which improves habitat conditions for native species which have evolved to rely on periodic wildfires. The program identifies the beneficial effects of certain land management actions such as mowing, fuel load reduction, invasive plant species control and prescribed burning in deterring

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12 or, in some cases, replicating the effects of wildfire. The CalVTP EIR determines that efforts to reduce the threat of catastrophic wildfire in the state are broadly beneficial for local species habitats, ecosystem health, and climate change. The EIR identifies a mitigation measure to survey for and avoid where possible direct impacts to special status species wherever the work is conducted. Because the Plan already provides compliance with these measures, incorporation of CalVTP-identified land management actions should be approved as covered activities that are consistent with the existing conservation strategy and not subject to impact fees.

The amended Plan will broaden the definition of conservation actions and tie them directly to CalVTP and other similar programs, whether they occur within or outside the Reserve System, and establish reporting criteria for them such that co-permittees may conduct these activities to mutual benefit. New Plan conditions and avoidance and minimization measures will ensure the projects are implemented as envisioned and consistent with CalVTP guidelines.

5. Burrowing Owl
The Plan anticipated that the local recovery of burrowing owls would be challenging, with an uncertain outcome, and that it would become state listed under the CESA sometime within the permit term.

These scenarios appear to bear out as the local population has been in steep decline and a petition for listing the species as threatened has recently been submitted to CDFW. As of the date of this report, 86% of permanent impacts to occupied burrowing owl habitat have been realized, though the Plan is only 20% of the way through its permit term. Although the Plan is ahead of conservation requirements for occupied burrowing owl habitat (34% achieved to date), due to development pressures in San Jose, there are fewer opportunities to protect additional occupied habitat. To compound this, the owls no longer exist at all in the three reference sites identified in the Plan, and breeding habitat has shrunk in all but one reporting year since the adoption of the Plan.

As of the date of this report, only one site in the Plan area is still experiencing natural recruitment and successful rearing of burrowing owls. This site is the San Jose/Santa Clara Regional Wastewater Facility Bufferlands (RWF), over which the Habitat Agency has just recorded a protective 200-acre conservation easement (CE). The CE was made possible through a land-in-lieu of fees exchange, by which burrowing owl impact fees due from San Jose for the implementation of public projects in the vicinity of the CE have been offered as a land encumbrance dedication.

Because the Plan anticipated challenges in covering impacts to burrowing owl, the conservation strategy for this species identifies three tiers of actions to help recover the species. Tier 1 conservation actions require identification and protection of occupied nesting habitat. The Habitat Agency immediately began managing 200 acres of land at the RWF and an additional 720 acres at the Don Edwards Reserve at Warm Springs. Despite initial success, and following years of land management, the population has been declining steadily since 2017. This reality meant that the Habitat Agency needed to move into Tier 2 conservation actions, which include additional protection of modeled and potential habitat. These actions have produced no slowing of the decline, so the Habitat Agency embarked on Tier 3 conservation actions, which include captive rearing, captive breeding and relocation/translocation of owls from occupied habitat to suitable modeled habitat. The Tier 3 actions

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13 have produced the first increase in local owl population since 2017, but with only two years of data, it is not clear how successful the program will be in the long term.

Due to the early onset of impacts to occupied burrowing owl habitat, the Habitat Agency has accumulated considerable funding to support the Tier 3 activities for several years. But with only 36 acres of permanent take remaining to authorize, it is unlikely that the Plan can satisfy the needs of the co-permittees for additional permanent impact take for the next 40 years. In consultation with the wildlife agencies, the Habitat Agency proposes to increase the number of acres of permanent take which can be authorized through the Plan from its current remaining 36 acres. A final figure of additional acres of take has yet to be determined.

Conversations with the wildlife agencies have revealed that any additional acres of take coverage for burrowing owls could only be approved contingent upon an expansion of the BUOW Fee Zone around the RWF Bufferlands Conservation Easement. Careful and consistent monitoring of this critical breeding site over the past decade has shown that this local population of owls routinely travels farther than

0.5-mile from a nest site for breeding season foraging. With the collapse of available foraging land within a 0.5-mile radius of active nests(land is being developed), this population has been documented to travel up to one mile from active nests for foraging. If the take limit is increased, then the wildlife agencies would require that the “occupied habitat” designation includes a one-mile radius buffer around the active nests as opposed to a 0.5-mile radius buffer (Attachment A). Because the expanded foraging area between 0.5 and 1.0 mile is not where the owls will spend the majority of their foraging time, the Burrowing Owl Specialty Fee in the expanded area would be half of the per-acre fee as that for the original occupied habitat.

6. Expansion of Plan area boundary
The existing Plan boundary is 519,506 acres in size, occupying approximately 62% of Santa Clara County. During development of the Plan, two significant areas of the County were removed from potential coverage; one in the northeast because very little development was envisioned there, and another in the northwest because most of that land consists of urbanized city jurisdictions or it is the sparsely developed eastern slope of the Santa Cruz Mountains. These two areas are now being reconsidered for limited coverage as discussed below and depicted as the Expanded Conservation Study Area and the Expanded Study Area for Select Public Projects. (Attachment B) Expansion of the Plan boundary to the northwest is proposed for select project coverage. This means no private development would automatically be covered in this new study area, but most public projects and activities conducted by the co-permittee agencies would be covered. In this area, Valley Water has requested coverage of management and maintenance of three new dam locations, expansion of their pipeline maintenance program and inclusion of their stream maintenance program.

The analysis includes several miles of new stream length which could potentially be impacted. Santa Clara County Parks Department and the Roads and Airports Division have also requested coverage in the northwest expanded Plan area for public projects. Within this expanded Plan area, other public and private project proponents may request coverage as Participating Special Entities.

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Habitat Plan Overview and Amendment Update
May 2025
14 The Expanded Study Area for Select Projects would be created by moving the existing west Plan boundary further west and out to the Santa Clara County boundary. This area includes 150,506 acres of land, a considerable portion of which is comprised of incorporated cities which are not partners in the Habitat Plan. The remainder is unincorporated Santa Clara County land. Expansion into this area would provide direct benefits to VTA, ensuring coverage for several planned projects along Highway 17, which are not currently within the Plan boundary.

Achieving the land conservation goals in the original study area has been challenging due to the competitive and expensive nature of the real estate market. To address this need, the amended study area will include an expanded study area for conservation only. Expansion of the Plan boundary to the northeast would extend the current Plan boundary out to the existing County line. Within this area, coverage is only proposed to allow for land acquisition for conservation purposes. The amount of land in the Expanded Study Area for Conservation is 124,978 or 15% of Santa Clara County.

PLAN AMENDMENT FUNDING AND FUTURE COSTS:

Funding for the Plan amendment has been fully secured by the Habitat Agency through two USFWS Endangered Species Act Section 6 grants, administered by CDFW. These grants were approved by the Santa Clara Valley Habitat Agency Governing Board in 2021 and 2022. Additionally, Valley Water is paying for benefits they specifically receive through the amendment, which do not benefit the other partners, mostly through expanded coverage for project and activities which these entities have requested. Aside from Valley Water, no other co-permittees are providing direct funding for the Plan amendment.

A cost analysis for all the changes proposed in the amendment will be conducted in the same manner that was used during the preparation of the original Plan. The Cost Model will consist of an assumption of the new total cost of the Plan divided by the expected acres of impacts by land cover and fee zone types. The resulting per-acre fee figures are not expected to increase much following the Plan amendment. Additional costs associated with new wildlife species being covered will result from the conservation strategy expenses associated with each species. But the other changes being proposed in the Plan amendment would not result in an increase in the cost of managing the Plan and may even result in cost savings since they are primarily intended to increase the efficiency of Plan implementation.

As mandated in the Plan, the Habitat Agency conducts a five-year fee review to ensure that the peracre land cover and specialty fees remain aligned with land management and administrative costs, as well as with wage increases, inflation and changing land values. The first fee review was completed in 2018, and the second is being finalized now, based on information collected between 2018 and the 2023/2024 fiscal year. Therefore, this Plan amendment will benefit from very current budget information to inform future fee assessments based on more accurate land acquisition and management costs.

As mentioned in the Plan Implementation Section above, there has been an overestimation of land cover impacts anticipated by the Plan with respect to actual development which has occurred in the

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Habitat Plan Overview and Amendment Update
May 2025
15 first ten years (20% of the permit term). In total, 24% fewer acres of land have been developed than was envisioned by the Plan. Unfortunately, the Conservation Strategy (Chapter 5) and minimum land protection, enhancement and restoration requirements are tied to the existing assumptionsin the Plan and not to the reality of development patterns in the Plan area that are now being understood.

The Plan assumed the Habitat Agency would be taking in approximately $7.3 million in land cover fees each year. However, the average total land cover fees received by the Habitat Agency has been $5.2 million per year. This reflects the reduced land cover impacts mentioned above and is roughly proportional at about 29% less fee funding.

There are several potential reasons for the unrealized land cover impacts through the Plan’s first ten years of implementation. These factors predate the Covid pandemic, as the reduced impacts were first realized in 2015, and three significantly smaller fiscal years occurred prior to the quarantine. The unrealized impacts seem to speak to a general trend in new development being focused on downtown, infill and urbanized areas. It reflects the recent zoning restrictions associated with open space and agricultural designations in Coyote Valley. It also reflects the City of Gilroy’s new urban growth boundary which creates an agricultural and open space perimeter around the existing developed areas.

All of these factors taken together, plus some factors not fully understood, have revealed a development paradigm that is impacting fewer acres of natural lands and instead largely results in new development of valley floor lands, such as agricultural, rural and urban/suburban areas. The plant and wildlife species covered by the Plan generally benefit from this development paradigm, because fewer acres of their prime habitat are being converted. But the reduced overall impact means that there is a reduction of all land cover types and in all areas of the Plan. The Plan’s Conservation Strategy, and the funding model built for it, over-estimated the mitigation need.

As detailed in the Fiscal Year 2022-2023 Annual Report for the Habitat Agency, after ten years of implementation, the Habitat Agency has provided permanent take coverage for 2,712 acres of development across the Plan area. This figure is 883 acres short of the land conversion expectations that drive the Plan conservation and restoration requirements. Because the Habitat Agency has protected 40% more acres of land with 37% less funding, it is outperforming its cost model. This is good news to date but is unsustainable in the long run. At some point, the impact assumptions must be realigned with the realities of the development in Santa Clara County. The Plan amendment will address this need in a revision of Chapter 4 (Impact Analysis and Level of Take). By adjusting the take assumptions downward, the cost of the Conservation Strategy will be reduced because fewer acres of land will need to be protected, enhanced and restored. For this reason, the overall per-acre fees currently assessed on land cover impacts will most likely not rise, or if they do rise, the increase will not be significant.

MEMORANDUM OF UNDERSTANDING (MOU):

The Habitat Agency and the co-permittees agreed to an MOU (Attachment C) to define their individual roles and responsibilities, explain their relationships, and establish a process for resolving disputes and addressing issues that might arise in Plan implementation. Section 8 of the MOU discusses Plan

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Habitat Plan Overview and Amendment Update
May 2025
16 amendments. It calls for any Local Partner (including the Habitat Agency) desiring to amend the Plan and/or its Permits, to notify every other co-permittee and for everyone to meet and confer regarding whether or not to proceed. The Habitat Agency has been coordinating this effort with the copermittees through meetings with the Technical Advisory Committee, the Implementation Board, and the Governing Board, all of which have co-permittee representation. Section 8(e) states:
“Any decision to seek an amendment to the Habitat Plan and Permits, and the cost allocation associated with the amendment, shall be approved by the governing bodies of all of the Local Partners before any work is begun or any costs are incurred in relation to the amendment. Any Local Partner that commences work on an amendment prior to this proceeds at its own risk”.

Consistent with this section of the MOU, the Habitat Agency is now requesting approval to proceed with the proposed Plan Amendment from each of the co-permittee agency governing bodies.

Now that the scope of the Plan amendment is generally agreed upon, as set forth above, the Morgan Hill City Council is being presented with a scope of the proposed Plan amendment for consideration.

HABITAT PLAN AMENDMENT SCHEDULE:
2022 2023 2024 2025 2026
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2
Confirm Proposed Amendments to
the Plan
Complete Admin Draft
of the Amended Santa
Clara Valley HCP/NCCP
Public Draft of the Amended Santa
Clara Valley HCP/NCCP
Complete Admin Draft
NEPA/CEQA Document
Public Draft NEPA/CEQA
Document and Public Review
Prepare Final Amended Santa
Clara Valley HCP/NCCP and

NEPA/CEQA

CONCLUSION
The purpose of this report is to ensure that the co-permittee governing bodies are informed about the history and early implementation of the Habitat Plan, as well as the rationale for the proposed first major amendment to the Habitat Plan being contemplated by the Habitat Agency. At this time, the Habitat Agency is pleased to present the proposed major amendment ofthe Habitat Plan to the Morgan Hill City Council.

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Habitat Plan Overview and Amendment Update
May 2025
17 ACTION:

The Habitat Agency requests that the Morgan Hill City Council approve pursuit of the Plan amendment as presented. If approved, the Habitat Agency Implementation and Governing Boards may approve a final Plan amendment upon its completion of environmental review.

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Major Amendment to the Santa
Clara Valley Habitat Plan
2025
1

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New Special Status Species
2 Seven new species proposed for coverage
Ø Large marble butterfly
Ø Western monarch butterfly
Ø Crotch’s bumblebee
Ø Swainson’s hawk
Ø Loggerhead shrike
Ø American Badger
Ø Central coast mountain lion

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Expanded Plan Coverage Area
3

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Amendment Funding and Future Costs
4 • Amendment is fully grant funded.
• If approved, most changes are cost-neutral.
• Cost of the Plan would only increase when the
conservation strategy is updated for newly
covered species.

Potential new land acquisition,
enhancement, management and
monitoring costs.
• Cost increase is likely to be offset by an
adjustment in future impact
assumptions.

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Plan Amendment Schedule
5 2022 2023 2024 2025 2026
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2
Confirm Proposed Amendments
to the Plan
Complete Admin Draft
of the Amended Santa
Clara Valley HCP/NCCP
Public Draft of the Amended
Santa Clara Valley HCP/NCCP
Complete Admin Draft
NEPA/CEQA Document
Public Draft NEPA/CEQA
Document and Public Review
Prepare Final Amended Santa
Clara Valley HCP/NCCP and

NEPA/CEQA

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City Council
Meeting Minutes
Mark Turner - Mayor
Yvonne Martínez Beltrán - Mayor Pro Tem
Soraida Iwanaga - Council Member
Marilyn Librers - Council Member
Miriam Vega - Council Member
Wednesday, April 2, 2025 6:00 PM
Council Chamber Building
17555 Peak Avenue, Morgan Hill, CA 95037

CALL TO ORDER
Mayor Turner called the City Council meeting to order at 6:01 p.m.

ROLL CALL ATTENDANCE
Deputy City Clerk Kim Mancera called the roll.

PRESENT Mark Turner, Yvonne Martinez Beltran, Soraida Iwanaga, Marilyn Librers, Miriam Vega
ABSENT None

DECLARATION OF POSTING AGENDA
Deputy City Clerk Kim Mancera declared the posting of the agenda.

SILENT INVOCATION

PLEDGE OF ALLEGIANCE

PROCLAMATIONS
Arts, Culture, and Creativity Month
Donate Life Month
Earth Day

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April 2, 2025
2 Parkinson's Awareness Month
Women's History Month

PRESENTATIONS
YAC Presentation
VTA Presentation

CITY COUNCIL REPORTS
Council Member Iwanaga attended her first South County Regional Wastewater Authority (SCRWA) meeting, the Joint Water Resource Committee and Valley Water meeting, a presentation on the health status of Morgan Hill, and a virtual Cal Cities session on cybersecurity. She plans to tour several Valley Water facilities and, in a few weeks, travel by train to the Cal Cities City Leaders Summit in Sacramento.

CITY MANAGER'S REPORT
City Manager Christina Turner provided the following updates:

Update on LAFCO meeting on the South County Fire District.

The City submitted the 2024 Housing and General Plan Annual Progress Report (APR) to the State by the April 1st deadline, detailing its progress in implementing its Housing Element and meeting its Regional Housing Needs Allocation (RHNA). The City’s RHNA allocation through 2031 is 1,037 units; out of this amount, the City has met the RHNA requirements for 815 units to date, leaving 324 units left to meet the City’s RHNA requirements. Due to the City's progress in meeting RHNA requirements, Morgan Hill is not currently subject to SB 423/SB35 (Streamlined Ministerial Approval Process for multifamily housing developments) through 2027.

Registration is now open for the Morgan Hill Police Youth Academy in partnership with our Explorer Post 811. This week-long summer program, June 10-13, provides an opportunity for local teens to explore the various roles and responsibilities of law enforcement career options and acquire a deeper understanding of community engagement and policing. This experience creates a positive environment for teens to engage in social, educational, and physical activities while promoting teamwork and an opportunity to build relationships with their peers. Our Youth Academy is open to teens between 14 and 18 who reside in or attend school in the 95037 zip code. For any questions or additional information, please visit the City’s website.

Our Council Chamber A/V equipment replacement and upgrade project will begin in a couple of weeks and be completed in May. As a reminder, the improvements include an assistive listening system, new projectors, screens at the dais for improved visibility, and higher-quality video output.

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April 2, 2025
3 The next Coffee with the Mayor event will be on Saturday, April 26th, at 8:30 a.m., in the Council Chamber.

Check out the Morgan Hill Parks and Recreation Summer Camp offerings. This Saturday, from 10 a.m. to noon, at the Railroad Park in Downtown, Recreation will host a Summer Camp Expo where parents and youth can learn about our fun and unique summer recreation offerings.

The City of Morgan Hill Ethics Poster will be available for the City Council to sign tonight at the Council meeting. We update the poster annually and have all employees read and acknowledge it by signing the surrounding matting.

She introduced and recognized our newly hired, promoted, and retired teammates.

New Hire, Promoted, and Retired Employee Recognitions

CITY ATTORNEY'S REPORT
None.

OTHER REPORTS
Council Member Vega mentioned that she attended her first Valley Water meeting. She is looking forward to a tour of their water facilities. She also participated in the 10k Wildflower run.

Council Member Librers mentioned she attended her first South County Youth Task Force meeting. She serves on the Santa Clara Valley Habitat Agency Boards. This year she was nominated as Chair of the Governing Board. She attended a luncheon for Women of the Year, her first training about Cal Train, a policy committee meeting regarding transportation, and the Wildflower run, where she handed out the medals to the participants. She expressed the need for more trains, expanding the freeway, or more VTA service in South County.

Mayor Pro Tem Martinez Beltran announced that Senator Dave Cortese awarded her Woman of the Year. She thanked the community, her colleagues, City staff, and her family for all their support. She attended the Latinas Contra Cancer. She celebrated with the Silicon Valley Islamic Center for their annual celebration of Ramadan. She attended an anti-hate press conference. She attended the Wildflower run. She attended the Assembly Member Pellerin's Women of the Year luncheon.

Mayor Turner shared that he has been working with Valley Water on fire protection and water resources. He attended the LAFCO meeting today. He discussed the LAFCO Board vote of 6-1 to dissolve the South Santa Clara County Fire District. Central Fire will now take over this district.

PUBLIC COMMENT

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April 2, 2025
4 Public comment opened at 7:10 p.m. The following people were called to speak:

Kathy Chavez Napoli
Ben Palm
Azeez Baameur
Rev. Mary Blessing
Samantha Smith
Joyce Maskell
Deborah Africa
There being no further requests to speak, public comment closed.

Public Comment Supplements

ADOPTION OF AGENDA
MOTION:

Adopting the agenda as posted.

RESULT: Passed
MOVER: Mayor Pro Tem Martinez Beltran
SECONDER: Council Member Librers
AYES: Mayor Turner, Mayor Pro Tem Martinez Beltran, Council Member Iwanaga, Council Member Librers, Council Member Vega
NAYS: None
ABSTAIN: None
ABSENT: None

CONSENT CALENDAR
Items appearing on the Consent Calendar are considered routine and may be approved by one motion. Pursuant to City Council Policies and Procedures (CP 97-01), any member of the Council or public may request to have an item removed from the Consent Calendar for comment and action.

MOTION:

Approving consent calendar items 1, 3 through 5, 8, 9, and 11.

RESULT: Passed
MOVER: Council Member Librers
SECONDER: Mayor Pro Tem Martinez Beltran
AYES: Mayor Turner, Mayor Pro Tem Martinez Beltran, Council Member Iwanaga, Council Member Librers, Council Member Vega

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April 2, 2025
5 NAYS: None
ABSTAIN: None
ABSENT: None

1. ACCEPT COMMUNITY LAW ENFORCEMENT FOUNDATION (CLEF)
DONATION IN THE AMOUNT OF $38,364
Recommendation:

Authorize the City Manager to accept a donation from the Community Law Enforcement Foundation (CLEF) in the amount of $38,364 for the purchases of new Police K9 - "Marco Polo" and new expenses related to K9 equipment and training; 60 trauma medical kits; and Police Department challenge coins.

3. APPROVE CONSULTANT AGREEMENT WITH MAZE & ASSOCIATES FOR

PROFESSIONAL AUDITING SERVICES
Recommendation:

1. Approve a three-year consultant agreement with Maze & Associates for professional auditing services for the not to exceed amount of $136,078; and

2. Authorize the City Manager to execute and administer the agreement.

4. APPROVE COST SHARE AGREEMENT WITH THE COUNTY OF SANTA CLARA FOR REPAVING OF EAST MAIN AVENUE FOR $341,495
Recommendation:

Authorize the City Manager to execute and administer a cost sharing agreement with the County of Santa Clara for the repaving of East Main Avenue from Condit Road to approximately 830 feet from Elm Road.

5. APPROVE THE MARCH 5, 2025 CITY COUNCIL MEETING MINUTES Recommendation:

Approve minutes.

8. APPROVE THE FIRST AMENDMENT TO THE SERVICE MAINTENANCE AGREEMENT WITH PETERSON POWER SYSTEMS, INC. FOR GENERATOR

MAINTENANCE AND REPAIR
Recommendation:

Approve and authorize the City Manager to execute an amendment to increase the not to exceed amount of the generator maintenance agreement with Peterson Power Systems by $157,473. This increase will bring the not to exceed amount to $452,668.

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April 2, 2025
6 9. PAVEMENT CONDITION UPDATE AND PAVEMENT REHABILITATION

PLANNING UPDATE
Recommendation:

Receive update.

11. RECEIVE MONTHLY BUDGET UPDATE AND FEBRUARY 2025 FINANCIAL

AND INVESTMENT REPORTS
Recommendation:

Receive and file reports.

ITEM PULLED FOR DISCUSSION

2. ACCEPTANCE OF THE MADRONE CHANNEL TRAIL IMPROVEMENTS PHASE II PROJECT IN THE AMOUNT OF $472,324
Recommendation:

1. Accept as complete the Madrone Channel Trail Improvements Phase II Project;

2. Authorize the City Engineer to sign the Notice of Completion; and

3. Direct the City Clerk to file said Notice of Completion with the County Recorder's Office.

City Manager Christina Turner provided the report.

Public comment opened at 7:42 p.m.

Doug Muirhead was called to speak.

There being no further requests to speak, public comment closed.

MOTION:

Approving the recommended actions.

RESULT: Passed
MOVER: Mayor Pro Tem Martinez Beltran
SECONDER: Council Member Vega
AYES: Mayor Turner, Mayor Pro Tem Martinez Beltran, Council Member Iwanaga, Council Member Librers, Council Member Vega
NAYS: None
ABSTAIN: None
ABSENT: None

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April 2, 2025
7 6. AUTHORIZE WRITE-OFF OF CERTAIN UNCOLLECTIBLE RECEIVABLES IN

ACCORDANCE WITH THE CITY'S WRITE-OFF POLICY
Recommendation:

Authorize write-off of certain uncollectible receivables in the amount of $55,925 in accordance with the City's write-off policy.

Finance Director Dat Nguyen provided the report.

Public comment opened at 7:54 p.m. There being no requests to speak, public comment closed.

MOTION:

Approving the recommended action.

RESULT: Passed
MOVER: Council Member Librers
SECONDER: Council Member Iwanaga
AYES: Mayor Turner, Mayor Pro Tem Martinez Beltran, Council Member Iwanaga, Council Member Librers, Council Member Vega
NAYS: None
ABSTAIN: None
ABSENT: None

7. AUTHORIZE THE CITY MANAGER TO SUBMIT THE APPLICATION FOR

WATER INFRASTRUCTURE FINANCE AND INNOVATION ACT (WIFIA) LOAN WITH THE U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) TO

FINANCE THE CONSTRUCTION OF A NEW SEWER TRUNK LINE
Recommendation:

Authorize the City Manager to submit the application and address other matters related to the Water Infrastructure Finance and Innovation Act (WIFIA) loan with the U.S. Environmental Protection Agency (EPA) to finance the construction of a new sewer trunk line.

Finance Director Dat Nguyen provided the report.

Public comment opened at 7:57 p.m. There being no requests to speak, public comment closed.

MOTION:

Approving the recommended action.

RESULT: Passed

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April 2, 2025
8 MOVER: Mayor Pro Tem Martinez Beltran
SECONDER: Council Member Vega
AYES: Mayor Turner, Mayor Pro Tem Martinez Beltran, Council Member Iwanaga, Council Member Librers, Council Member Vega
NAYS: None
ABSTAIN: None
ABSENT: None

10. RATIFY CITY POSITION ON PENDING LEGISLATION
Recommendation:

Ratify the City’s position supporting pending legislation, Senate Bill 456 (Ashby) Community Beautification Act.

City Manager Christina Turner provided the report.

Public comment opened at 8:06 p.m. There being no requests to speak, public comment closed.

MOTION:

Approving the recommended action.

OTHER BUSINESS

12. ADOPT RESOLUTION FURTHER REAFFIRMING THE CITY’S COMMITMENT

TO A DIVERSE, SUPPORTIVE, INCLUSIVE COMMUNITY AND PROTECTING

THE CONSTITUTIONAL RIGHTS OF ITS RESIDENTS
Recommendation:

Adopt resolution further reaffirming the City's commitment to a diverse, supportive, inclusive community and protecting its residents' constitutional rights.

City Attorney Donald Larkin provided the report.

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April 2, 2025
9 Public comment opened at 8:35 p.m. The following people were called to speak:

Kathy Chavez Napoli
Azeez Baameur
Sarah Miller
Phil Lockwood
Noshaba
Deborah Africa
Sally Casas
Sean Allen (zoom)
Marby Lee (zoom)
There being no further requests to speak, public comment closed.

MOTION:

Adopting a 3rd version of the resolution that was handed out to Council during the meeting.

RESULT: Failed for lack of a second
MOVER: Mayor Pro Tem Martinez Beltran
SECONDER: None
AYES: None
NAYS: None
ABSTAIN: None
ABSENT: None
SUBSTITUTE MOTION:

Adopting the resolution in attachment 1 of the staff report.

RESULT: Failed for lack of a second.

MOVER: Mayor Pro Tem Martinez Beltran
SECONDER: None
AYES: None
NAYS: None
ABSTAIN: None
ABSENT: None
MOTION:

Adopting the resolution in attachment 2 of the staff report.

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April 2, 2025
10 RESULT: Passed
MOVER: Council Member Iwanaga
SECONDER: Council Member Librers
AYES: Mayor Turner, Council Member Iwanaga, Council Member Librers, Council Member Vega
NAYS: None
ABSTAIN: Mayor Pro Tem Yvonne Martinez Beltran
ABSENT: None

FUTURE COUNCIL INITIATED AGENDA ITEMS
None.

ADJOURNMENT
There being no further business, Mayor Turner adjourned the meeting at 9:39 p.m.

Minutes Prepared by:

Kim Mancera, Deputy City Clerk

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14 CITY COUNCIL STAFF REPORT
MEETING DATE: May 21, 2025
PREPARED BY:

Cynthia Iwanaga, Management Analyst
APPROVED BY: City Manager
AWARD 2025 SIDEWALK REPAIRS PROJECT TO ESTATE DESIGN
AND CONSTRUCTION, INC.

RECOMMENDATION(S)

1. Award contract to Estate Design and Construction, Inc. in the amount of $160,000; and authorize the expenditure of construction contingency funds not to exceed $16,000 for a total authorization of $176,000; and

2. Authorize the City Manager to execute and administer the construction contract with Estate Design and Construction, Inc.

COUNCIL PRIORITIES, GOALS & STRATEGIES
City Council Ongoing Priorities
Enhancing Public Safety
Maintaining and Enhancing Infrastructure
2024-2025 Strategic Priorities
Fiscal Sustainability
Guiding Documents
Morgan Hill 2035 General Plan
REPORT NARRATIVE:

The purpose of this item is to present the City Council with an opportunity to review and consider the contract prepared to complete the City's 2025 Sidewalk Repair Project.

The scope of work for the 2025 Sidewalk Repair Project will include the removal and replacement of concrete sidewalks at various locations within the City limits from June to August 2025. Over 3,885 square feet of damaged sidewalks will be removed and replaced. In addition, 127 linear feet of curb and gutter and 14 ramps will be installed.

Tree root removal will be completed dependent upon the conditions at each sidewalk site. The exact locations and City bid documents are attached (Attachment 1).

In soliciting bids for this sidewalk repair project, the City advertised in the Morgan Hill Times on February 28, 2025. Bids were posted on the City website, Public Purchase online plan room service, and at four builders' exchanges, including the Builders'

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14 Exchange of Santa Clara County, San Francisco Builders' Exchange, Bay Area Builders' Exchange and Central Coast Builders. Lastly, the bid was posted on the Dodge and Data Analytics website, whose subscribers include hundreds of contractors as well as national builders exchanges. General Engineering (A) and Concrete (C-8) contractors registered on the City's bidders' list were also informed of the bid opportunity via email.

A non-mandatory virtual pre-bid meeting was held on March 18, 2025. The bid opening was held on April 9, 2025, via virtual meeting, and 13 bids were received (Attachment 2), as listed below:

Bidder's Name Bid Amount
Estate Design and
Construction
$160,000.00
Cervantes Landscape
Services, Inc.
$168,517.50
Spektren Engineering,
Inc.
$169,375.00
Concentric Concrete, Inc. $203,758.00
Duran Construction Group $210,060.00
BNO Builders, Inc. $218,000.00
JMS Cement Contractors,
Inc.
$231,480.00
Coastal Paving and
Excavating, Inc.
$248,000.00
Spencon Construction $275,150.00
J.J.R. Construction, Inc. $328,348.00
FBD Vanguard
Construction Inc.
$402,465.00
Golden Bay Construction $412,744.00
Penhall Company $504,502.86
The responsive bidder with the lowest responsive bid, Estate Design and Construction, Inc., has over four years of experience, and has completed similar projects for both local government agencies and school districts in California.

Staff recommends a 10% contingency of $16,000, which will yield a total construction authorization of $176,000 for the 2025 sidewalk repair and replacement project. Staff recommends that the City Council award the contract to Estate Design and Construction, Inc., and authorize the City Manager to execute and administer the contract (Attachment 3).

COMMUNITY ENGAGEMENT:

Inform
Contractor will post signs at the sidewalk repair sites to inform pedestrians and cars of

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14 the construction underway. Notification will also be posted on the City's website and Nextdoor Morgan Hill to inform residents that sidewalk repairs will be underway throughout the City beginning in early June 2025.

ALTERNATIVE ACTIONS:

An alternative action would be to not approve the contract and delay the repair of City sidewalks.

PRIOR CITY COUNCIL AND COMMISSION ACTIONS:

While the City Council has not previously taken action on this particular item, conducting sidewalk repairs is an ongoing public safety activity, and the Council has approved numerous contracts for sidewalk repairs in the past.

FISCAL AND RESOURCE IMPACT:

The total authorized amount for this contract is $160,000. A 10% contingency of $16,000 is approved outside the contract with the authority granted to the City Manager to access the 10% contingency, and change order the contract up to the $176,000 amount. Funding for this agreement is allocated in the FY 2024/2025 budget in Fund 346: Public Facilities.

CEQA (California Environmental Quality Act):

Categorical Exemption
The activities described in this Staff Report are categorically exempt under CEQA, specifically pursuant to Section 15301(c) of the CEQA Guidelines (Existing Facilities), as the subject work involves the repair, maintenance, or minor alterations of existing City facilities involving negligible or no expansion of the use of those facilities.

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2025 Sidewalk Repairs & Replacement Project
CSD2025-022 Page 1
Version: January 2025
SPECIFICATIONS AND CONTRACT DOCUMENTS for
2025

SIDEWALK REPAIRS & REPLACEMENT

PROJECT

MORGAN HILL, CALIFORNIA

PUBLIC SERVICES DEPARTMENT
Bids Due:

Tuesday, April 8, 2025 at 11:59 p.m.

Via e-mail to [email protected]
Virtual Bid Opening:

Wednesday, April 9, 2025 11:00 a.m.

Zoom Meeting Link:
https://bit.ly/2025SWBidOpening
Non-Mandatory Virtual Pre-Bid Meeting
Tuesday, March 18, 2025 at 10:00 a.m.

Zoom Meeting Registration Link:
https://bit.ly/2025SidewalkPreBid
Project # CSD2025-022
March 4, 2025

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2025 Sidewalk Repairs & Replacement Project NOTICE INVITING BIDS CSD2025-022 Page 1
Version: January 2025

NOTICE INVITING INFORMAL BIDS

1. Bid Acceptance. The City of Morgan Hill (“City”), will accept electronic PDF bids for its 2025 Sidewalk Repairs and Replacement Project (“Project”), by or before Tuesday, April 8, 2025 at 11:59 p.m. via email to [email protected]
Late bids will not be accepted. Bids will be publicly opened and read aloud at 11:00 a.m. on Wednesday, April 9, 2025 via a virtual Zoom meeting:
https://bit.ly/2025SWBidOpening

2. Project Information.

2.1 Location and Description. The Project is located at various locations throughout Morgan Hill, and the Scope of Work is described as follows:

Removal and replacement of damaged concrete sidewalks (3,885 s.f.), 127 linear feet of curb and gutter, 14 curb ramps, and remove roots of trees that have been removed prior to the sidewalks being opened up, that is, root removal will be required by the sidewalk contractor.

2.2 Time for Completion. The Project must be fully completed within 90 calendar days from the start date set forth in the Notice to Proceed. City anticipates that the Work will begin in May 2025, but the anticipated start date is provided solely for convenience and is neither certain nor binding.

3. License and Registration Requirements.

3.1 License. This Project requires a valid California contractor’s license for the following classification(s): A (General Engineering) or C-8 (Concrete).

3.2 DIR Registration. City will not accept a Bid Proposal from or enter into the Contract with a bidder, without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations (“DIR”) to perform public work under Labor Code Section 1725.5, subject to limited legal exceptions.

4. Contract Documents. The plans, specifications, bid forms, and contract documents for the Project (“Contract Documents”) may be obtained from the City of Morgan Hill, at 17575 Peak Avenue, Morgan Hill, CA, (408) 778- 6480. Electronic copies of the Contract Documents are available on a USB thumb drive for twenty-five dollars ($25.00). If mailing by USPS, a ten-dollar

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Morgan Hill City CouncilMay 21, 2025

Morgan Hill City Council
May 21, 2025