Agenda packet — City Council and Authorities Concurrent, January 11, 2022 (part 3 of 6)

of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.

2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on May 1, 2018 and terminate on December 31, 2019.

3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence .

4. WARRANTY
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.

5. QUALIFICATIONS OF CONTRACTOR-STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations , expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.

6. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is Seventy Thousand Dollars ($70,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not Agreement with Barry Milstone DBA Milstone Geotechnical Rev. 07-01-18

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be entitled to any payment above the maximum compensation under any circumstance.

7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days' prior written notice to Contractor.

B. Termination for Default. If Contractor fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Contractor.

C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Contractor will deliver to City all City information or material that Contractor has in its possession.

8. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.

Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.

9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.

10. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement.

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or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.

12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.

13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City._ Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.

Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor's Services hereunder.

14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner Agreement with Barry Milstone OBA Milstone Geotechnical Rev. 07-01-18

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arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement - including claims of any kind by Contractor's employees or persons contracting with Contractor to perform any portion of the Scope of Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.

B. Contractor's obligation to protect, defend, indemnify, and hold harmless in full City and City's employees, shall specifically extend to any and all employment-related claims of any type brought by employees, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.

C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.

15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.

16. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City's review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.

Agreement with Barry Milstone DBA Milstone Geotechnical Rev. 07-01-18

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17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:

City of Santa Clara
Attention: City Manager's Office
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Contractor addressed as follows:

Name:

Address:

Barry Milstone
17020 Melody Lane
Los Gatos, CA 95033
(408) 353-5528
The workday the e-mail was sent shall control the date notice was deemed given .

An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.

18. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to 'The Code of the City of Santa Clara, California" ("SCCC"). In particular, Contractor's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130) , Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299 ).

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19. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.

20. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability , mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.

21. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.

22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.

23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.

24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.

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25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form:
f•~ ~(~

BRIDOYLE
City Attorney
"CITY"
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone : (408) 615-2210
Fax: (408) 241-6771

BARRY MILSTONE OBA MILSTONE GEOTECHNICAL
an individual
Dated: ~ 8
By (Signature): ========:;i__==a:14:, ~==~===-======== Name: __ a_r__,,__M_il+--o_n_e ___________ _ Title: Owner ------------------Pr in ci pa I Place of 17020 Melody Lane Business Address: Los Gatos, CA 95033 ----~------------- Em a ii Address: _b_a_r~ry~@_m_il_st_o_n_e~ge_o_._co_m ________ _ Telephone: _(,__4_08_,_)_3_5_3-_5_5_28 __________ _
Fax: (
"CONTRACTOR"
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EXHIBIT A

SCOPE OF SERVICES
The Services to be performed for City by Contractor under this Agreement are set forth below. ·
In a letter dated April 2, 2015 ("Letter''), the Santa Clara County Department of Environmental Health ("County" or "DEH"), acting as the Solid Waste Local Enforcement Agency, has required City, as the applicant for the planned development of the mixed-used project located in City, and commonly referred to as City Place Santa Clara ("Project"), to retain a suitably qualified independent consultant(s) to provide third party review to DEH for its review of the Project.

Contractor shall provide technical advice and assistance to County for its review of the Project on behalf of City. Contractor will coordinate efforts with City and County.

Contractor shall conduct a geotechnical review of permit applications, landfill closure plan, site development plans, and other information as necessary to evaluate and prepare plan review documents for submission to County . Contractor shall conduct the geotechnical review in collaboration with Robert E. Van Heuit, who will be reviewing the environmental and civil permit aspects of the Project. Contractor's geotechnical review and related and necessary services will include the following:
• Review of project documents, including plans, specifications, and geotechnical investigation materials ;
• Site reconnaissance to observe current site conditions; • Direct communications, on an as-needed basis, with the project design team to request any materials required for clarification and to convey items to be addressed by the design team;
• Participation in required meetings with design team and regulatory personnel; • Coordination of review efforts with Robert E. Van Heuit; • Telephone consultation with County representatives and California Department of Resource Recycling and Recovery ("CalRecycle") representatives; and • Preparation , with Robert E. Van Heuit, of plan review documents for submission to County.

Contractor recognizes that City has contracted for the services described above to assist County with the preparation of environmental review documents. Contractor may be directed or ordered by County without invalidating or modifying the Parties' respective duties and obligations pursuant this agreement.

Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit A-Scope of Services Rev. 07-01-18

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Contractor shall keep confidential, and not misappropriate, disclose or make available, any and all information concerning the plans, operations or activities of City, its parent, affiliates, divisions and subsidiaries which Contractor may learn or discover from any source whatsoever in the performance of the services under this agreement, and Contractor shall not use the name of the Related Company (Developer) or the Developer logo on any division or project of Developer or otherwise without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Upon termination of this agreement, upon request of the City, the Contractor shall promptly return to City's possession all copies of any writings, drawings or other confidential information which are then in the possession or control of Contractor. Upon the request of City at any time under this agreement, Contractor shall promptly return to City all such copies of writings, drawings or other confidential information which are then in the possession or control of Contractor.

Contractor disclaims any responsibility for work products produced by others and reviewed by Contractor.

Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit A-Scope of Services Rev. 07-01-18

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EXHIBIT B

SCHEDULE OF FEES
Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding month on an invoice and in a format approved by City and subject to verification and approval by City. City will pay Contractor within thirty (30) days of City's receipt of an approved invoice.

Consultant shall submit a monthly invoice to the City based on costs incurred on a time and materials basis. The 2019 schedule of fees are as follows:

TIME:

PERSONNEL RATE PER HOUR
Principal Engineer/Geologist $190
Time for field services will be charged at a minimum rate of 2 hr. within 30 minutes of Los Gatos or 4 hr. beyond. Travel time will be charged according to the above rates (maximum of eight hours per day).

MATERIALS/REIM BU RS EABLES RATE
2-Wheel Drive Vehicle $0.57/mi
Hand Sampling Equipment $100/day
Liquid Level Device $100/day

PAYMENT
Invoices are to be paid within 30 days of invoice date.

Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit 8-Schedule of Fees Rev. 07-01-18

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EXHIBIT C

INSURANCE REQUIREMENTS
Without limiting the Contractor's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:

A. COMMERCIAL GENERAL LIABILITY INSURANCE

1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 each occurrence
$1,000,000 general aggregate
$1,000,000 products/completed operations aggregate
$1,000,000 personal injury

2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.

3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf' basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.

B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01, with minimum policy limits of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.

Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit C-lnsurance Requirements Rev. 07-01-18

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C. WORKERS' COMPENSATION

1. Workers' Compensation Insurance Policy as required by statute and employer's liability with the following limits: at least one million dollars ($1,000,000) policy limit Illness/Injury by disease, and one million dollars ($1,000,000) for each Accident/Bodily Injury.

2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).

3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.

D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.

1. 2.

3. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.

Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.

Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.

Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit C-lnsurance Requirements Rev. 07-01-18

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4. b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non renewal.

Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through D of this Exhibit C, above .

E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:

1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.

2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.

3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.

F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor , and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers , and under forms of policies, Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit C-lnsurance Requirements Rev. 07-01-18

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satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.

G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.

Upon City's request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:

EBIX Inc.

City of Santa Clara [City Manager's Office]
P.O. Box 100085 - S2 or 1 Ebix Way
Duluth, GA 30096 John's Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.

Agreement with Barry Milstone dba Milstone Geotechnical/Exhibit C-lnsurance Requirements Rev. 07-01-18

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AMENDMENT NO. 1

TO THE AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND

BARRY MILSTONE OBA MILSTONE GEOTECHNICAL

PREAMBLE
This agreement ("Amendment No. 1 ") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Barry Milstone OBA Milstone Geotechnical, a California individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for Services Between the City of Santa Clara, California, and Barry Milstone OBA Milstone Geotechnical," dated January 23, 2019 (the "Original Agreement"); and B. The Parties entered into the Original Agreement for the purpose of having Contractor provide technical advice and assistance to the County of Santa Clara on behalf of the City in its review of the CityPlace Santa Clara Project, and the Parties now wish to amend the Original Agreement to add additional funds to continue the scope of work.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
That paragraph number 6 of Original Agreement, entitled "COMPENSATION," is hereby amended to read as follows:

In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is One hundred thousand Dollars ($100,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation Amendment No. 1 to AgreemenUMilstone Geotechnical
Rev. 08/28/2018

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shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

2. TERMS
All other terms of the Original Agreement which are not in conflict with the provisions of this Amendment No. 1 shall remain unchanged in full force and effect. In case of a conflict in the terms of the Original Agreement and this Amendment No. 1, the provisions of this Amendment No. 1 shall control.

3. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 1 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:

Approved as to Form:

City Attorney
"CITY"
DEAN
City Ma ager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771

BARRY MILSTONE OBA MILSTONE GEOTECHNICAL

AN INDIVIDUAL
Dated: 8/28/19
By (Signature): ~'" s· »!J.,J,;,u,__
Name: Barr/Milstone
Title: Owner
Principal Place of 17020 Melody Lane
Business Address: Los Gatos, CA 95033
Amendment No. 1 to AgreemenUMil!s!one Geotechnical
Rev. 08/28/2018
Page2
Email Address: [email protected]
Telephone: (408) 353-5528
Fax: ~~-----------------"CONTRACTOR"
Amendment No. 1 to AgreemenUMilstone Geotechnical
Rev. 08/28/2018

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Ebix Insurance No. S200003233
AMENDMENT NO. 2

TO THE AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND

BARRY MILSTONE OBA MILSTONE GEOTECHNICAL

PREAMBLE
This agreement ("Amendment No. 2") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Barry Milstone OBA Milstone Geotechnical, a California individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for Services Between the City of Santa Clara, California, and Barry Milstone OBA Milstone Geotechnical," dated January 23, 2019 (the "Original Agreement"); and B. The Original Agreement was previously amended by Amendment No. 1, dated November 7, 2019. The Original Agreement and the previous amendment are collectively referred to herein as the "Original Agreement as Amended"; and C. The Parties entered into the Original Agreement for the purpose of having Contractor provide technical advice and assistance to the County of Santa Clara on behalf of the City in its review of the CityPlace Santa Clara Project, and the Parties now wish to amend the Original Agreement as Amended to extend the term.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
That paragraph number 2 of Original Agreement, entitled "TERM OF AGREEMENT," is hereby amended to read as follows:
"Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on May 1, 2018 and terminate on December 31, 2020."
Amendment No. 2 to Agreement/Millstone Geotechnical
Rev. 08/28/2018

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2. TERMS
All other terms of the Original Agreement as Amended which are not in conflict with the provisions of this Amendment No. 2 shall remain unchanged in full force and effect. In case of a conflict in the terms of the Original Agreement as Amended and this Amendment No. 2, the provisions of this Amendment No. 2 shall .control.

3. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 1 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:

Appel s to Focm,
1 BRIAND YLE \,i
City Attorney
Dated: 1;2-)0 f\
"CITY"
Amendment No. 2 to AgreemenUMillstone Geotechnical
Rev. 08/28/2018
~&k DEAJ.SANTANA
City Manager
. 1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771

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BARRY MILSTONE DBA MILSTONE GEOTECHNICAL

AN INDIVIDUAL
Dated: 12/9/19 ·
By (Signature): ~&fu ~; )14l;,/4YU1_
Name: rry Milstone
Title: Owner
Principal Place of 17020 Melody Lane
Business Address: Los Gatos, CA 95033
Email Address: [email protected]
Telephone: (408) 353-5528
Fax: (802) 448-1025
"CONTRACTOR''
Amendment No. 2 to Agreement/MIiistone Geotechnlcal
Rev. 08/28/2018
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AMENDMENT NO. 3

TOTHEAGREEMENTFORSERWCES

BETWEEN THE

CITY OF SANT A CLARA, CALIFORNIA,
AND

BARRY MILSTONE OBA MILSTONE GEOTECHNICAL

PREAMBLE
This agreement ("Amendment No. 3") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Barry Milstone OBA Milstone Geotechnical, a California individual, (Contractor) . City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement"

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for Services Between the City of Santa Clara, California, and Barry Milstone OBA Milstone Geotechnical ," dated January 23, 2019 (Agreement); B. The Agreement was previously amended by Amendment No. 1, dated November 7, 2019, and Amendment No 2, dated December 10,2019, to extend the term of the Agreement;
C. The Parties entered into the Agreement as Amended for the purpose of having Contractor provide technical advice and assistance to the County of Santa Clara on behalf of the City in its review of the CityPlace Santa Clara Project, and the Parties now wish to amend the Agreement as Amended to extend the term.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 2 of the Agreement as Amended, entitled "TERM OF AGREEMENT" is amended to read as follows:
"Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on May 1, 2018 and termina te on December 31, 2021 ."
Except as set forth herein, all other terms and conditions of the Agreement as Amended shall remain in full force and effect. In case of a conflict in the terms of Amendment No. 3 to Agreement/Milstone Geotechnical
Rev. 10/25/19

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the Agreement as Amended and this Amendment No. 3, the provisions of this Amendment No. 3 shall control.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 3 as evidenced by the following signatures of their duly authorized representatives.

Approved as to Form:
!f/4 ~

BRIAN DOYLE
City Attorney

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
"CITY"
o-/ DEAN A . SANT ANA
City Man ger
i 500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 6i5-2210
Fax: (408) 24 i -677i

BARRY MILSTONE DBA MILSTONE GEOTECHNICAL

AN INDIVIDUAL
Dated: 12/7/20
By (Signature): 4~A,.li, s· >ili)oYLv__
Name: Barry)VlHstone
Title: Owner
Principal Place of i 7020 Melody Lane
Business Address: Los Gatos, CA 95033
Email Address: [email protected]
Telephone: (408) 353-5528
Fax: __,__,__ ______________ _
"CONTRACTOR"
Amendment No. 3 to Agreement/Milstone Geotechnical
Rev. 10/25/2019

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Ebix Insurance No. S200003233
AMENDMENT NO. 4

TO THE AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND

BARRY MILSTONE DBA MILSTONE GEOTECHNICAL

PREAMBLE
This agreement ("Amendment No. 4") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Barry Milstone OBA Milstone Geotechnical, a California individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled " Agreement for Services Between the City of Santa Clara, California, and Barry Milstone OBA Milstone Geotechnical," dated January 23, 2019 (Agreement) B. The Agreement was previously amended by Amendment No. 1, dated November 7, 2019, Amendment No. 2, dated December 2019, and Amendment No. 3, dated February 9, 2021, and is again amended by this Amendment No. 4. The Agreement and all previous amendments are collectively referred to herein as the "Agreement as Amended"; and
C. The Parties entered into the Agreement as Amended for the pur pose of having Contractor provide technical advice and assistance to the County of Santa Clara on behalf of the City in its review of the CityPlace Santa Clara Project, and the Parties now wish to amend the Agreement as Amended to increase the total contract amount by $50,000 to a total not to exceed contract amount of $120,000.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 6 of the Agreement as Amended, entitled "Compensation and Payment" is amended to read as follows:

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($120,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supp lies, materials and equipment required to· perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

2. Except as set forth herein, all other terms and conditions of the Agreement as Amended shall remain in full force and effect. In case of a conflict in the terms of the Agreement as Amended and this Amendment No. 4, the provisions of this Amendment No. 4 shall control.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 4 as evidenced by the following signatures of their duly authorized representatives.

Appi as to Form:

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Office of the City Attorney
City of Santa Clara 1VV Cit Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
"CITY"

BARRY MILSTONE DBA MILSTONE GEOTECHNICAL

AN INDIVIDUAL
Dated: 7/6/21 ----~-~~----------
By (Signature): l~1u-i_7. ~-)U,,l ,-/4YLQ_
Name: Barry;Milstone ·
Title: Owner
Principal Place of 17020 Melody Lane
Business Address: Los Gatos, CA 95033
Email Address: [email protected]
Telephone: (408) 353-5528
Fax: (802) 448-1025
"CONTRACTOR"
Amendment No. 4 to Agreement/Milstone Geotechnical
Rev. 10/25/2019

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Amendment No. 5 to Agreement/Environmental Risk Services, Inc. Page 1 Rev. 10/25/19
EBIX Insurance No. S200004043

AMENDMENT NO. 5

TO THE AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ENVIRONMENTAL RISK SERVICES, INC.

PREAMBLE
This agreement (“Amendment No. 5”) is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Environmental Risk Services, Inc., a California corporation, (Contractor). City and Contractor may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for the Performance of Services by and between the City of Santa Clara, California, and Environmental Risk Services, Inc." dated July 17, 2018
B. The Agreement was previously amended by Amended and Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc. (Amended and Restated Agreement), dated December 12, 2018, Amendment No. 1 to the Amended and Restated Agreement, dated February 12, 2019, Amendment No. 2 to the Amended and Restated Agreement, dated July 25, 2019, Amendment No. 3 to the Amended and Restated Agreement, dated April 15, 2020, Amendment No. 4, dated July 7, 2021, and is again amended by this Amendment No. 5. The Agreement and all previous amendments are collectively referred to herein as the “Agreement as Amended”; and C. The Parties entered into the Agreement as Amended for the purpose of having Contractor provide environmental risk assessment support activities for the Related Santa Clara project, and the Parties now wish to amend the Original Agreement as Amended to extend the term.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 2 of the Agreement as Amended, entitled “Term of Agreement” is amended to read as follows:
“Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the Amendment No. 5 to Agreement/Environmental Risk Services, Inc. Page 2 Rev. 10/25/2019
term of the Agreement shall begin on July 17, 2018 and terminate on December 31, 2022.”

2. Except as set forth herein, all other terms and conditions of the Agreement as Amended shall remain in full force and effect. In case of a conflict in the terms of the Agreement as Amended and this Amendment No. 5, the provisions of this Amendment No. 5 shall control.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 5 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation

Approved as to Form: Dated:

Office of the City Attorney

DEANNA J. SANTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”

ENVIRONMENTAL RISK SERVICES, INC.
a California corporation

Dated:

By (Signature):

Name: Mark O’Brien
Title: CEO
Principal Place of
Business Address: P.O. Box 1209, Alamo, CA 94507
Email Address: [email protected]
Telephone: (925) 878-3771

“CONTRACTOR”
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EBlX Insurance No. S200004043

AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE
CITY OF SANT A CLARA. CALIFORNIA,
AND
ENVIRONMENTAL RISK SERVICES, INC.

PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Environmental Risk Services) Inc. , a California corporation, with its principal place of business located at 1515 Oakland Blvd., Ste 250, Walnut Creek, CA 94596 ("Contractor''). City and Contractor rnay be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement.''

RECITALS
A. City desires to secure the services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services";·
B. Contractor represents that it, and its subcontractors, if any, have the professional . qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such seivices will be provided and paid for.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:

Exhibit A - Scope of Services
Exhibit B - Schedule of Faes
Exhibit C- Insurance Requirements
Exhibit D - Labor Compliance Addendum (if applicable)
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Rev. 07-01-18

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Ue c. j, LU I~ IU:UUAM t. K. 0. \; o r p No. U~4 I ~- LL This Agreement, including the Exhibits set forth above, contains all the agreements. representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.

3. SCOPE OF SERVICES & PERFORMANCE· SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.

4. WARRANTY
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services) City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.

5. QUALIFICATIONS OF CONTRACTOR ... STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.

6. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is Ninety Thousand Dollars ($90,000.00), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment Agreement with Environmental Risk Services
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required to perform the Services. All work performed or materials provided in excess of the maxlmum compensation shall be at Contractor's expense.

Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

B. Termination for Default. If Contractor fails to perform any of its material obligations under this Agreement) in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Contractor.

10. IND~PENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement Agreement with Environmental Risk Services
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11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specificationst plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Seivices nor be disclosed to an entity not connected with performance of the Services" Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.

12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications) proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof_ City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project. including, but not limited to, the release of this material to third parties.

13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the tem, of this Agreement and .for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City_ Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City_ Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor
1 s Services hereunder.

14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, Agreement with Environmental Risk Services
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liability, loss, cost) and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other _action, and whether sounding in law, contract, tort, or equity, in any manner arising from1 or alleged to arise in whole or in part from, or in any way connected with the Seivices performed by Contractor pursuant to this Agreement - including claims of any kind by Contractor's employees or persons contracting with Contractor to perform any portion of the Scope of Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.

8. Contractor's obligation to protect, defend, indemnify, and hold harmless in full City and City's employees, shall specifically extend to any and all employment--related claims of any type brought by employees, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.

C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Contractor warrants that it is meeting rts obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.

Agreement with Environmental ~isk Services
Rev. 07-01-18

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17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:

City of Santa Clara
Attention: City Manager's Office
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at: [email protected], and
[email protected]
And to Contractor addressed as follows:

Mark O'Brien
Environmental Risk Services, Inc.

P.O. Box 1209
Alamo, CA. 94507
and by e-mail at: [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.

An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.

18. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to "The Code of the City of Santa Clara r California" ("SCCC"). In particular, Contractor's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage ($CCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocurnent?id=58299)_
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20. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientationy gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.

21. NO USE OF CITY NAMe OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.

22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California_ The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California_

23. SEVERABIUTY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.

24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.

Agreement with Environmental Risk Services
Rev, 07-01-18

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25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANT A CLARA, CALIFORNIA
a chartered California municipal corporation
-Approved as to Form:

City Attorney
UCllY"
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ENVIRONMENTAL RISK SERVICES 1 INC.
a California corporation
Dated: _ ........ 11..,..,.L~.....C~f/--'-'-_' K'---;1'71'---r--Y-/-.------~ By (Signature): ~---:----::-::~~~~'lo12:--~~~------
Name: Mark O'Brien "' ----------------~
Title: CEO -----------------Pr inc i pa I Place of
Business Address: P.O. Box 1209) Alamo, CA 94507 -------'----'---------- Em a ii Address: [email protected]
Telephone: ~(~'f~-79,_.,W,~~-3~1-71 ______ _
~~=--,.,~--~.......,_ _________ _
Fax: (
''CONTRACTOR"
Agreement With Environmental Risk Services
Rev. 07-01-18
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EXHIBIT A

SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are set forth below.

Environmental Risk Services (ERS) will provide environmental risk assessment support activities for the City Place Santa Clara development (the Site).

The City of Santa Clara {City) is the current owner of the former Class Ill Santa Clara All-Purpose Landfill: The former landfill covers approximately 21 O acres (of which approximately 175 acres underlies planned construction) and is bounded by Highway 237 to the north, the Guadalupe River to the east, Tasman Drive to the south, and Great America Parkway and Saratoga Creek to the West.

The Landfill was operated until 1993 by the City and several contractors such as Mission Trail Waste Systems and Purpose. ERS also understands that the landfill was closed by the San Francisco Regional Water Quality Control Board (RWQCB) in 1994.

The City plans to lease the property to Related Santa Clara, LLC (Related LLC) who plans to develop a mixed-use complex including retail, restaurant, entertainment, and residential uses _
Based on the lnformation provided to ERS will complete the following tasks:

Document Review
ERS will perform a review of the following documents provided by the City:
■ Development and Disposition Agreement
• Development Agreement
.. WDRs Santa Clara LF - R2-2017-0021
■ Final PCLUP Text Figures and Appendices A and B.
• Final PCLUP Appendix C as revised.
■ Final PCLUP Appendices G through L.
• Final PCLUP RWQCB Comments on PCLUP 2016-10-28.
■ Final PCLUP as revised RWQCB Comments on Revised Final PCLUP 2016- 12-09.
.. 0 and M Term Sheet Regarding Obligations for Landfill Post"Closure O and M. ■ 2016-12u22 Landfill WDR Letter_
• Final Site Investigation and Environmental Risk Assessment. ■ RWQCB Concurrence with Final Site Investigation ~ Environmental Risk Assessment
■ DEIR Volume I.
• DEIR Volume II.
■ DEIR Appendix 1_NOP Comments.
• DEIR Appendix 3_3_Transportation Data.
■ DEIR Appendix 3.4_AQ_ GHG Data.

Agreement with Environmental Risk Services, lncJEx:hibit A-Scope of Services Rev. 07-01-18

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• DEIR Appendix 3.6_Noise Data.
■ DEIR Appendix 3.7 _Native American Consultation.
• DEIR Appendix 3.8_ TreeAssessmentReport.
■ DEIR Appendix 3.14_Water Supply Assessment.
■ DEIR Appendix 4_Urban Decay Analysis.
• FEIR.
~ FEIR Exhibit A - Impact Analysis for City Place Enhanced Open Space Variant. • FEIR Exhibit B - Additional Responses to Comments and Revisions. • FEIR Appendix 3.1_Final BUOW Committee Report.
• FEIR Appendix 3.2_San Jose Burrowing Owl Population Increases by 54 Percent in a Year,
■ FEIR Appendix 4.1_Attachments to Comments.
• FEIR Appendix 5.1_Revised Transportation Tables.
• FEIR Appendix 5.2_Revised DEIR Appendix 3,3-K- Mitigated Intersection LOS. ■ Master Community Plan Volume 1 - Revised December 2, 2016. " Master Community Plan Volume 2 - Infrastructure June 2016.

Analysis of Current Environmental Site Conditions and prior Site Investigations and Environmental Risk Assessments
An analysis of existing environmental conditions, including interpretation of data from groundwater, landfill gas, refuse, and foundation soils) will be included. ERS will review available consultants' reports to assess pr~vious field investigations including:
• Landfill Gas Investigation (April 2014)
• Geotechnical Investigation (March 2014)
" Soil, Groundwater, and Landfil[ Gas Characterization (October 2014 and March 2016)
ERS will assess the previous investigations with respect to completeness of historical information, field methods and completeness of sampling, Quality Assurance/Quality Control, the development of a conceptual site model and human health risk assessment, modeling of potential exposures such as vapor intrusion, uncertainties, and recommended mitigation and remediation measures.

Impact to Landfill from Proposed Development
ERS will review the proposed development to assess potential risks to human health or the environment specifically related to the Development and Disposition Agreement as well as construction plan documents (e.g., potential compromises to the landfill cap or low- permeability liner).

Project Management/Risk Management Sqgport
ERS will provide project management support and participate in discussions regarding overall risk management strategy for the project during the period of the scope of work. described here.

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The assessment to be performed as outlined in the Scope of Work described above will be conducted to ensure compliance with applicable Local, State, and Federal Landfill Regulations including:
• Federal Regulations
o Part 258 ("Criteria for Municipal Solid Waste Landfills") of Title 40 of the Code of Federal Regulations (CFR).
o Part 136 ("Guidelines Establishing Test Procedures for the Analysis of Pollutants") of Title 40 of the CFR.
o Part 445 ("Landfills Point Source Category") of Title 40 of the CFR. o Subpart 60 Cc ("Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills") of Title 40 of the CFR. o Subpart 60 GG ("Standards of Performance for Stationary Gas Turbines") and Subpart 60 WWW ("Standards of Performance for Municipal Solid Waste Landfills'') of Title 40 of the CFR. o Subpart 63 AAAA ("National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills") of Title 40 of the CFR (these are proposed regulations that may be finalized in 2002). o Part 51.165 ("Review of New Sources and Modifications") and Part 52.21 ("Prevention of Significant Deterioration") of Title 40 of the CFR. o "Final Modification of the National Pollutant Discharge Elimination System (NPDES) Stormwater Multi-Sector General Permit for Industrial Activities" (Federal Register, Volume 63, Part VII, 30 September 1998). • State of California Regulations
o Title 27 ("Environmental Protection") of the California Code of Regulations (CCR).
o Resolution Number 93-62 ("Policy for Regulation of Discharges of Municipal Solid Waste")-State Water Resources Control Board (SWRCB).
o Order Number 97-03-DWQ ("National Pollution Discharge Elimination System General Permit No. GAS 000001 ')~SWRCB.
o Title 14, Section 15000 et seq. (California Environmental Quality Act guidelines) of the CCR.
• Local Regulations
o Air quality regulations related to MSW landfills for California AQMDs_ o Available California County and city codes, ordlnances, and regulations. o A sample of conditional use permit requirements (CUPs).

Site Visit
ERS will visit the landfill site to observe the current site conditions, proximity to surface water, drainage, soil conditions, operation of infrastructure and remediation equipment, leachate collection systems, venting systems, etc. The information obtained from the site visit will be summarized in the final report.

Meetings .

ERS will participate in meetings as needed with the City, regulatory agencies, developers, attorneys, and technical consultants. ·
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ERS will develop a written report of our findings for use by the City. The report will detail each of the items in the scope of work described above, and include recommendation for further steps the City may take to reduce future risks associated with the project.

As-Needed Services
ERS will participate in Council closed and/or study sessions and prepare necessary material as directed by the City. ERS will also participate in meeting as necessary with Related LLC.

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EXHIBIT B

TIME AND MATERIALS RATE SHEET
Calendar Year 2018
Personnel i
Principal Risk Program Manager
Senior Engineer
Senior Scientist ·
Lead Engineer (incl. GIS / CAD)
Lead Scientist
l?rnject Engineel'
Froject Scientist
Staff Engineer
Staff Scientist
Junior Engineer
Junior Scientist
Technical Editor
Field Technician
Project Assistant
Administrator
Expenses I
I
Office supplies, co~puters, telephoues., routine copy., etc.

Project specific support materials and services
Subcontractors and equipment vendors
Rates
$250/hour
$255 /hour
$225/hour
$185/hour
$165/hour
$175/hour
$165/hour
$125/hour
$100/hour
$95 /hour
$85/hour
$BO/hour
$75/hour
$65/hour
$60 /hour
Rate~
No charge
Cost plus 10%
Cost plus 15%
Equipment rent.il from ERS Varies pei· item/time
Agreement with Environmental Risk Services, lnc./Exhibit B-Schsdule of Fees Rev. 07-01-18
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Report Preparii.tion Materials $50 / binder
Field Support Vehicles/Sampling Trucks $185 / day
Agreement with Environmental Risk Services, lnc./Exhibit B-Schedule of Fees Page 2 Rev. 07-01-18
Uec. j, LUI~ IU:UjAM t. K. 0. t; o r p No. U~4 I ~- jJ

EXHIBITC

INSURANCE REQUIREMENTS
Without limiting the Contractor's indemnification of the City) and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the folfowing insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Contractor's insurance. The minimum coverages, provisions and endorsements are as follows:

COMMERCIAL GENERAL LIABILITY INSURANCE
Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1 10001000 Personal Injury
Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form .

The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:

Coverage shall be on a "pay on behalf' basis with defense costs payable in addition to policy limits;
There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
Coverage shall appiy separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.

BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at Agreement with Environmental Risk Services, lnc./Exhibit C~h1surance Rev. 07-01-18

Page 1 ends

Ue c . .:J, LU I~ IU:U.:JAM t. K. 0. Co r p No, U~4 I ~- .:Jo least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.

In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto) or being unloaded from a covered auto.

WORKERS' COMPENSATION
Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000} policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.

The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).

This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions 1 officers, employees, volunteers and agents.

PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Contractor. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney's Office.

COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.

Agreement with Environmental Risk SeNlces, lnc./Exhlblt C-lnsurance Rev. 07-01-18
Page2
Uec. j, LUrn 1U:UjAM t.K.~. Corp No.U~41 ~. j/
Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.

Primary and non-contributing_ Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to) and not requiring contribution from, any other insurance which the indemnities may possess, including any self insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.

Cancellation_
Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.

Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation_ In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non renewal.

ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:

Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits.

Contractor agrees to monitor and review all such coverage and assumes Agreement with Environmental Risk Services, lnc-'Exhibit C-lnsurance Rev_ 07-01-18
·Page 3
LJec. j, iUI~ IU:U4AM t. It ~. t,; o r p
all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.

Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.

The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.

EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor , and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.

EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.

Upon City's request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements _ Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:

EBIX Inc.

City of Santa Clara [City Manager's Office]
P.O. Box 100085- S2 or 1 Ebix Way
Duluth, GA 30096 John's Creek, GA 30097
Telephone number : 951-766-2280
Agreement with Environmental Risk Services. lnc./Exhibit C-lnsurance Rev. 07-01r18
Page4
Uec. j, LUI~ IU:U4AM t. K. ~- lorp No. U~4 I ~- j~
Fax number: 770-.325-0409
Email address: [email protected]

QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.

Agreement with Environmental Risk Services, lnc./Exhiblt C-lnsurancs Rev. 07-01-18
Page5
Ebix Insurance No. S200004043
AMENDMENT NO. 1

TO THE AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ENVIRONMENTAL RISK SERVICES, INC.

PREAMBLE
This agreement ("Amendment No. 1 ") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Environmental Risk Services, Inc., a California corporation, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A The Parties previously entered into an agreement entitled "Amended and Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc." dated December 12, 2018 (the "Original Agreement"); and
B. The Parties entered into the Original Agreement for the purpose of having Contractor provide environmental risk assessment support activities for the City Place Santa Clara, and the Parties now wish to amend the Original Agreement to include review of environmental documents and permits as identified on the attached Pre-construction schedule, and tasks required by provisions of the WDRs.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
A That Exhibit A of the Original Agreement, entitled "Amended and Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc." is hereby amended to include the attached Exhibit A-1.

B. That Section 6 of the Original Agreement, entitled "COMPENSATION AND PAYMENT" is hereby amended to read as follows:

Rev. 08/28/2018

Page 1 ends

"SCHEDULE OF FEES." The maximum compensation of this
Agreement is Three Hundred Fifty Thousand Dollars ($350,000.00), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's ·expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

C. That Exhibit B of the Original Agreement, entitled "Amended and Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc." is replaced with the attached Exhibit B.

D. That section 2 of the Original Agreement, entitled "Term of Agreement" is hereby amended to read as follows:

Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on July 17, 2018 and terminate on January 31, 2020.

3. COUNTERPARTS
II
II
II
II
II
II
II
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

Amendment No. 1 to Agreement/Environmental Risk Services, Inc.

Rev. 08/28/2018

Page 2 ends

The Parties acknowledge and accept the terms and conditions of this Amendment No. 1 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:

Dated: 2-/ / 2-/; i
~~---
frt...fJEANNAJ.SANTANA
City Manager
"CITY"
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ENVIRONMENTAL RISK SERVICES, INC.
a California corporation.

Dated: __._,_,_...1L~;,L_____,' /~I£}--A!_ -,--,--
By (Signature): ---/.~L~Cl~-~L2LL'L.XXJ.;J--=~=::::::~-~---- Name: Mar O'rien -------'--------------
Ti tie: CEO ----------------Pr inc i pa I Place of
Business Address: P.O. Box 1209, Alamo, CA 94507 -----~-~-------- Em a i I Address: _m_ob_r_ie_n-@ ..... e_rs_c_o__.rp_.u_s ________ _ Telephone: _(~9_25-)_8_78_-_37_7_1 _________ _
"CONTRACTOR"
Amendment No. 1 to Agreement/Environmental Risk Services, Inc.

Rev. 08/28/2018
Page3
EXHIBIT A-1

SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are set forth below.

Environmental Review - Third-party review of environmental documents and permits as identified on the attached Pre-construction schedule, and tasks required by provisions of the WDRs as detailed below:

Provisions 4 and 5: Supplemental Leachate/Groundwater Evaluation and Landfill Penetration Evaluation
ERS has been actively involved in reviewing and commenting on both of these tasks over the last few months. ERS involvement has highlighted issues of ground water flow that had previously not been considered. These issues include the anomalously low ground water elevations found within the Landfill, as well as the potential for dewatering facilities in the vicinity to have affected the occurrence of ground water in the Landfill.

These factors are now being incorporated into the planning done by the consultants who are responsible for completing these ongoing tasks. ERS will continue to assist the City in reviewing and commenting on these tasks to ensure that the interests of the City are protected. We will do this by rigorously reviewing the data for its accuracy and completeness, and not just in terms of whether or not it is acceptable to the reviewing regulatory agencies.

Provisions 6 through 9: Post Closure Maintenance Plan Detection Monitoring Program (DMP) Review; Well Installation or Destruction Report; Phase Investigations and Designs
ERS is well qualified to assist the City in reviewing and commenting on these tasks.

ERS' review of the landfill has led to the development of an integrated conceptual model of the site that takes into account all of the landfill features, both natural and engineered. Because of this, we are uniquely positioned to review the many documents and studies that will be required under these Provisions. For example, the groundwater monitor network will need to be protected in the Post-Closure Maintenance Plan; it will be a primary topic in the Detection Monitoring Plan; and any additions or removals from the network will be subject of the applicable report.

Provision 13: Landfill GasNapor System
ERS has reviewed the existing landfill gas/vapor systems at the landfill and have identified a number of areas of concern. The scale of the proposed development will necessitate a complete overhaul of these systems. ERS staff have the expertise to assist in reviewing and optimizing performance of these systems.

Provision 15, 16, and 17: Emergency Response Contingency Plan, Earthquake Inspection Report, Corrective Action Plan
Amendment No. 1 to Agreement with Environmental Risk Services, Inc.I Exhibit A-1 Rev. 08/28/2018

Page 1 ends

All of these Provisions include a requirement to assess the condition of the groundwater monitor network and other systems after an earthquake or other failure that may lead to a release of contaminants from the Landfill. ERS is able to make these assessments as well as to design and implement corrective actions.

Engineering Design Review
ERS is well qualified to perform design review for the Landfill Gas Collection and Landfill Gas Mitigation System design included in the Post-closure Maintenance Plan.

Development of Risk Management Plan
Environmental Insurance:
• Prepare technical presentations for insurance brokers, • Prepare brokers' scope of work,
• Design policy parameters and endorsements for environmental insurance program,
• Prepare and present technical information to underwriters, and provide ongoing support and communication to underwriters, and
• Place policy.

Owner-controlled Insurance Program {OCIP):
• Design OCIP Program,
• Present to Insurers,
• Place Policy.

Owner's and Director's Insurance Policy:
• Design Director's Insurance Program
• Present to Insurers,
• Place Policy.

Review Legal Documents
• Coordination of review and legal agreements, insurance policies, work plans, and agency correspondence.

City, Developer, and Regulator Meetings and Other Ongoing Tasks ERS understands that regular meetings will be held between representatives of the City and regulatory agencies in order to facilitate the review and approval process for the many tasks that will be undertaken as the proposed development proceeds. ERS has been a strong advocate for the City in many meetings with the developer and we would continue that advocacy in meeting with regulators. In that capacity we will defend the interests of the City and ensure that regulatory approvals do not ignore potential City liabilities.

Amendment No. 1 to Agreement with Environmental Risk Services, Inc./ Exhibit A-1 Rev. 08/28/2018
Page2

EXHIBIT B

TIME AND MATERIALS RATE SHEET
Calendar Year 2019
Senior Engineer
Senior Scientist
Lead Engineer (incl. GIS / CAD)
Lead Scientist
Project Engineer
Project Scientist
Staff Engineer
Staff Scientist
Junior Engineer
Junior Scientist
Technical Editor
Field Technician
Project Assistant
Plotter copies
Project specific support materials and services
$180/hour
$170 /hour
$130/hour
$105/hour
Amendment No. 1 to Agreement with Environmental Risi< Services, Inc.I Exhibit B Rev. 08/28/2018

Page 1 ends

Subcontractors and equipment vendors Cost plus 15%
Equipment rental from ERS
Report Preparation Materials
Field Support Vehicles/Sampling Trucks
Deposition and testimony rate= 1.5 times 1
Amendment No. 1 to Agreement with Environmental Risk Services, Inc./ Exhibit B Rev. 08/28/2018
Page2
Ebix Insurance No. S200004043
AMENDMENT NO. 2

TO THE AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ENVIRONMENT AL RISK SERVICES, INC.

PREAMBLE
This agreement ("Amendment No. 2") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Environmental Risk Services, Inc., a California corporation, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Amended and Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc." dated December 12, 2018 (the "Original Agreement"); and
B. The Original Agreement was previously amended by Amendment No. 1, dated February 12, 2019, and is again amended by this Amendment No. 2. The Original Agreement -and all previous amendments are collectively referred to herein as the "Original Agreement as Amended"; and
C. The Parties entered into the Original Agreement for the purpose of having Contractor provide environmental risk assessment support activities for the City Place Santa Clara, and the Parties now wish to amend the Original Agreement to include review of environmental documents and permits as identified on the attached Pre-construction schedule, and tasks required by provisions of the WDRs.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
A. That Section 6 of the Original Agreement, entitled "COMPENSATION AND PAYMENT" is hereby amended to read as follows:

Rev. 08/28/2018

Page 1 ends

"SCHEDULE OF FEES." The maximum compensation of this
Agreement is Six Hundred Fifty Thousand Dollars ($650,000.00), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compens·ation under any circumstance.

All other terms of the Original Agreement which are not in conflict with the provisions of this Amendment No. 2 shall remain unchanged in full force and effect. In case of a conflict in the terms of the Original Agreement and this Amendment No. 2, the provisions of this Amendment No. 1 shall control.

2. COUNTERPARTS
II
II
II
II
II
II
II
II
II
II
II
II
II
II
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

Amendment No. 2 to AgreemenUEnvironmental Risk Services, Inc.

Rev. 08/28/2018

Page 2 ends

The Parties acknowledge and accept the terms and conditions of this Amendment No. 2 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:

Approved as to Form: Dated: 7 -;)...3 'l <j

BRIAN DOYLE
City Attorney
"CITY"
~ J."t- NTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ENVIRONMENT AL RISK SERVICES, INC.
a California corporation
Dated: -#-1--~_ 1_2'/-'---'-1~/....___,,,.A"--"/3-· /_/ ~-. -- By (Signature): ___ L."-/-~;}_~_::~::,,,,-h4-i:::=====~-____ _ Name: Mark O'Brin -----------------
Ti tie: CEO
Principal Place of
Business Address: P.O. Box 1209, Alamo, CA 94507
Email Address: [email protected]
Telephone: (925) 878-3771
"CONTRACTOR
Amendment No. 2 to Agreement/Environmental Risk Services, Inc.

Rev. 08/28/2018

Page 3 ends

EXHIBIT B

TIME AND MATERIALS RATE SHEET
Calendar Year 2019
Personnel I
Principal Risk Program Manager
Senior Engineer
Senior Scientist
Lead Engineer (incl. GIS / CAD)
Lead Scientist
Project Engineer
Project Scientist
Staff Engineer
Staff Scientist
Junior Engineer
Junior Scientist
Technical Editor
Field Technician
Project Assistant
Administrator
Expenses I
Office supplies, computers, telephones
Routine copies
Plotter copies
Project specific support materials and services
Rates
$265/hour
$270 /hour
$235/hour
$195/hour
$170 /hour
$180 /hour
$170 /hour
$130 /hour
$105 /hour
$100/hour
$90 /hour
$85 /hour
$80 /hour
$70 /hour
$60 /hour
Rates
No charge
lOc/page
$10/page
Cost plus 10%
Amendment No. 1 to Agreement with Environmental Risk Services, Inc./ Exhibit B Rev. 08/28/2018
I
I

Page 1 ends

Subcontractors and equipment vendors Cost plqs 15%
Equipment rental from ERS Varies per item/time
Report Preparation Materials $50 /binder
Field Support Vehicles/Sampling Trucks $185/ day
Deposition and testimony rate = 1.5 times regular rate
Amendment No. 1 to Agreement with Environmental Risk Services, Inc./ Exhibit B Rev. 08/28/2018

Page 2 ends

Ebix Insurance No. S200004043
AMENDMENT NO. 3

TO THE AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANT A CLARA, CALIFORNIA,
AND
ENVIRONMENTAL RISK SERVICES, INC.

PREAMBLE
This agreement ("Amendment No: 3") is entered into between the City of Santa Clara1 California, a chartered California municipal corporation (City) and Environmental Risk Services 1 Inc., a California corporation, (Contractor). City and Contractor may be referred to individually as a r•Party" or collectively as the "Parties" or the "Parties to this Agreement." ·

RECITALS
A. The Parties previously entered into an agreement entitled "Amended and .Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc." dated December 121 2018 (the "Original Agreement"); and
B. The Original Agreement was previously amended by Amendment No. 1, dated February 12, 2019, Amendment No. 2, dated July 251 2019, and again by this Amendment No. 3. The Original Agreement and all previous amendments are collectively referred to herein as the "Original Agreement as Amended"; and C. The Parties entered into the Original Agreement for the purpose of having Contractor provide environmental risk assessment support activities for the Related Santa Clara project, and the Parties now wish to amend the Original Agreement as Amended to extend the term.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
A. That Section 2 of the Original Agreement as Amended, entitled "Term of Agreement" is hereby amended to read as follows:

Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement 1 the term of the Agreement shall begin on July 17, 2018 and terminate on December 31, 2020.

Amendment No. 3 to Agreement with Environmental Risk Services, Inc.

Rev. 08/28/2018

Page 1 ends

2. TERMS
All other terms of the Original Agreement as Amended which are not in conflict with the provisions of this Amendment No. 3 shall remain unchanged in full force and effect. In case of a conflict in the terms of the Original Agreement as Amended and this Amendment No. 3, the provisions of this Amendment No. 3 shall control.

3. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 3 as evidenced by the following signatures of their duly authorized representatives. · CITY OF SANT A CLARA; CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:

Approved as to Form: Dated: 4 I,., 1 iow
~~A ~
City Attorney
"CITY"
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
· Fax: (408) 241-6771
ENVIRONMENTAL RISK SERVICES, INC.
a California corporation
Dated'. //4 ~_sv~ ?
By (Signature): ,,~~-?/ ___ !:.._:,
Name: Mark OTuien ---·--
Title: CEO
Principal Place of
Business Address: P.O. Box 1209, Alamo, CA 94507
Email Address: [email protected]
Telephone: (925) 878-3771
"CONTRACTOR"
Amendment No. 3 to Agreement with Environmental Risk Services, Inc.

Rev. 08/28/2018
Page2
Ebix Insurance No. S200004043
AMENDMENT NO. 3

TO THE AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANT A CLARA, CALIFORNIA,
AND
ENVIRONMENTAL RISK SERVICES, INC.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
A. That Section 2 of the Original Agreement as Amended, entitled "Term of Agreement" is hereby amended to read as follows:

Amendment No. 3 to Agreement with Environmental Risk Services, Inc.

Rev. 08/28/2018

Page 1 ends

3. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

Rev. 08/28/2018
Page2
Ebix Insurance No. S200004043
AMENDMENT NO. 4

TO THE AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANT A CLARA, CALIFORNIA,
AND
ENVIRONMENTAL RISK SERVICES, INC.

PREAMBLE
This agreement ("Amendment No. 4") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Environmental Risk Services, Inc., a California corporation, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for the Performance of Services by and between the City of Santa Clara, California, and Environmental Risk Services, Inc." dated July 17, 2018
B. The Agreement was previously amended by Amended and Restated Agreement for Services between the City of Santa Clara, California, and Environmental Risk Services, Inc. (Amended and Restated Agreement), dated December 12, 2018, Amendment No. 1 to the Amended and Restated Agreement, dated February 12, 2019, Amendment No. 2 to the Amended and Restated Agreement, dated July 25, 2019, Amendment No. 3 to the Amended and Restated Agreement, dated . April 15, 2020, and is again amended by this Amendment No. 4. The Agreement and all previous amendments are collectively referred to herein as the "Agreement as Amended"; and
C. The Parties entered into the Agreement as Amended for the purpose of having Contractor provide environmental risk assessment support activities for the Related Santa Clara project, and the Parties now wish to amend the Original Agreement as Amended to extend the term.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 2 of the Agreement as Amended, entitled "Term of Agreement" is amended to read as follows:

Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of Amendment No. 4 to AgreemenUEnvironmental Risk Services, Inc.

Rev. 10/25/19

Page 1 ends

the Agreement shall begin on July 17, 2018 and terminate on December 31, 2021.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 4 as evidenced by the following signatures of their duly authorized representatives .

BRIAN DOYLE
City Attorney

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Dated: -i \ l1---(J-vvl
'";::;:;NTANA :miL
'\t-' City Ma ag r
"CITY"
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-221 0
Fax: (408) 241-6771
ENVIRONMENTAL RISK SERVICES, INC.
a California corporation
Dated: /~ l, lao~+
By (Signature): ====· ::,:::...,,..·=~::m::_-~~ _-_-_~•================ Name: Mark O'Brien -----------------
Ti tie: CEO -------- - --------Pr in ci pa I Place of
Business Address: P.O. Box 1209, Alamo, CA 94507 ......c_c_::_..:.-=-:c:....:_:=-=-..:::...,_c_-"=:..:_:_-'----=-.:__:c__:..::...::_:_ ____ _ Email Address: -'I'""'J1s.,;,;.o .;;;.b1;.;.;·ie""'r""'1(g2_ ~_;a.;er;.;;;s..:;.c<""'JJJlc& . . ~-L""'is _________ _ Telephone: (925) 878-3771
"CONTRACTOR"
Amendment No. 4 to Agreement/Environmental Risk Services, Inc.

Rev. 10/25/2019

Page 2 ends

Amendment No. 4 to Agreement/Robert E. Van Heuit Page 1 Rev. 10/25/19
EBIX Insurance No. S2000003234

AMENDMENT NO. 4

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ROBERT E. VAN HEUIT

PREAMBLE
This agreement (“Amendment No. 4”) is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Robert E. Van Heuit, an Oregon individual, (Contractor). City and Contractor may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for Services between the City of Santa Clara, California, and Robert E. Van Heuit", dated June 2, 2015 (Agreement);
B. The Agreement was previously amended by Amendment No. 1, dated May 6, 2016, Amendment No. 2, dated October 28, 2016, Amendment No. 3, dated September 5, 2017. The parties entered into an Amended and Restated Agreement for Services, dated September 27, 2018, Amendment No. 1 to the Amended and Restated Agreement for Services, dated October 31, 2019, Amendment No. 2 to the Amended and Restated Agreement for Services, Amendment No. 3 to the Amended and Restated Agreement for Services, and now Amendment No. 4. The Agreement and all previous amendments are collectively referred to herein as the "Agreement as Amended"; and C. The Parties entered into the Agreement as Amended for the purpose of having Contractor provide certain support activities further outlined in Exhibit A - Scope of Services, for the City Place Santa Clara project, and the Parties now wish to amend the Agreement to increase the total contract amount by $100,000 to a total not to exceed contract amount of $400,000.

Amendment No. 4 to Agreement/Robert E. Van Heuit Page 2 Rev. 10/25/2019
NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 2 of the Agreement as Amended, entitled “Term of Agreement” is amended to read as follows:
“Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of the Agreement shall begin on July 17, 2018 and terminate on December 31, 2022.”

2. Section 10 of the Agreement as Amended, entitled “Compensation and Payment” is amended to read as follows:
“In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is Four Hundred Thousand Dollars ($400,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials, and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.”

3. Except as set forth herein, all other terms and conditions of the Agreement as Amended shall remain in full force and effect. In case of a conflict in the terms of the Agreement as Amended and this Amendment No. 4, the provisions of this Amendment No. 4 shall control.

Amendment No. 4 to Agreement/Robert E. Van Heuit Page 3 Rev. 10/25/2019
The Parties acknowledge and accept the terms and conditions of this Amendment No. 4 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation

Approved as to Form: Dated:

Office of the City Attorney

DEANNA J. SANTANA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”

ROBERT E. VAN HEUIT

INDIVIDUAL
Dated:

By (Signature):

Name: Robert E. Van Heuit
Title: Owner
Principal Place of
Business Address:
2621 Heritage Way
Medford, OR 97504
Email Address: [email protected]
Telephone: (541) 499-6123
Fax: ( )
“CONTRACTOR”
EBIX Insurance No. S200003234

AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ROBERT E. VAN HEUIT

PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Robert E. Van Heuit, an Oregon individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for the Professional Services by and between the City of Santa Clara and Robert E. Van Heuit" dated June 2, 2015; Amendment No. 1 dated May 6, 2016; Amendment No. 2 dated October 28, 2016; Amendment No. 3 dated September 5, 2017 and now desire to amend and restate the Agreement; and
B. City desires to secure the services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services";
C. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
D. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

Exhibit A - Scope of Services
Exhibit B - Schedule of Fees
Agreement with Robert E. VanHeuit
Rev. 07-01-18

Page 1 ends

Exhibit C - Insurance Requirements
Exhibit D - Labor Compliance Addendum (if applicable)
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.

3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.

4. WARRANTY
Contractor expressly warrants that all materials and services covered by this ~n.-.<:>.<:>m.<:>nt ,:,he:.!! hn fit fr.r th0 rn ,rnr.~p intPnr!Pr! ~h~!! hP frpp frnm r!PfP!"'t ~nr! shall conform to the specifications, requirements and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.

5. QUALIFICATIONS OF CONTRACTOR-STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.

Agreement with Robert E. VanHeuit
Rev. 07-01-18

Page 2 ends

6. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is One Hundred Seventy Thousand Dollars ($170,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

Agreement with Robert E. VanHeuit
Rev. 07-01-18

Page 3 ends

11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.

12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor ···-J ·-·-·" -··- --- --r-·--···-·--·· -••J -··-·· ··-- ~- ...... ___ ... -"J ··-J -· -- -"J time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.

13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.

Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees Agreement with Robert E. VanHeuit
Rev. 07-01-18

Page 4 ends

to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor's Services hereunder.

14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action , and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement - including claims of any kind by Contractor's employees or persons contracting with Contractor to perform any portion of the Scope of Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.

Page 5 ends

shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.

17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:

City of Santa Clara
Attention: City Manager's Office
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Contractor addressed as follows:

Name:

Address:

Robert E. Van Heuit
2621 Heritage Way
Medford, OR 97504
(541 )499-6132
and by e-mail at: [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.

An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.

Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to "The Code of the City of Santa Clara, California" ("SCCC"). In particular, Contractor's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id =58299 ).

Agreement with Robert E. VanHeuit
Rev. 07-01-18

Page 6 ends

19. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect , which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.

20. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.

24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.

Agreement with Robert E. VanHeuit
Rev. 07-01-18

Page 7 ends

25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANT A CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form: Dated: ~------=--"~~---=---
~ ~ ~ BRIAN DOYLE
City Attorney
"CITY"
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ROBERT E. VAN HEUIT
an individual
Dated: ~pr,e ""-h\J.-r 7- v, L6 leg'
By (Signature): iZ'i~ -9 e,~' ~
Name: Robert E. VanHeuit
Title: Owner
Principal Place of
Business Address: 2621 Heritage Way, Medford OR 97504
Email Address: [email protected]
Telephone: (514) 499-6123
Fax:

Agreement with Robert E. VanHeuit
Rev. 07-01-18
__._-L-----------------"CONTRACTOR"

Page 8 ends

EXHIBIT A

SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are set forth below.

In a letter dated April 2, 2015 ("Letter"), the Santa Clara County Department of Environmental Health ("County" or "DEH"), acting as the Solid Waste Local Enforcement Agency, has required the City of Santa Clara ("City"), as the applicant for the planned development of the mixed-used project located in City, and commonly referred to as City Place Santa Clara ("Project"), to retain a suitably qualified independent consultant(s) to provide third party review to DEH for its review of the Project.

Contractor shall provide technical advice and assistance to the County for its review of the Project on behalf of the City. The Consultant will coordinate efforts with the City and the County.

The work involves environmental review of permit applications, landfill closure plan, site development plans, and other information as necessary to evaluate and prepare plan review documents for submission to the County. The review will be performed in collaboration with Barry Milstone, who will be reviewing the geotechnical aspects of the Project. The scope of services for the review will include the following:
• Review of project documents, including plans, specifications, and geotechnical investigation materials;
• Site reconnaissance to observe current site conditions; • Direct communications, on an as-needed basis, with the project design team to request any materials required for clarification and to convey items to be addressed by the design team;
• Participation in required meetings with design team and regulatory personnel; • Coordination of review efforts with Barry Milstone;
• Telephone consultation with County representatives and CalRecycle representatives; and
• Preparation, with Barry Milstone, of plan review documents for submission to County.

The Contractor recognizes that the City has contracted for the services described above to assist the County with the preparation of environmental review documents. The Contractor may be directed or ordered by the County without invalidating this agreement.

Agreement with Robert E. Van Heu it/Exhibit A-Scope of Services Rev. 07-01-18

Page 1 ends

The Contractor agrees to keep confidential, and not to misappropriate, disclose or make available, any and all information concerning the plans, operations or activities of the City, its parent, affiliates, divisions and subsidiaries which the Contractor may learn or discover from any source whatsoever in the performance of the services under this agreement, and Contractor shall not use the name of the Developer or the Developer logo on any division or project of Developer or otherwise without the prior written consent of City, which consent may be withheld in the City's sole and absolute discretion. Upon termination of this agreement, upon request of the City, the Contractor shall promptly return to the City's possession all copies of any writings, drawings or other confidential information which are then in the possession or control of the Contractor. The Contractor further agrees that, upon the request of the City at any time under this agreement, the Contractor shall promptly return to the City all such copies of writings, drawings or other confidential information which are then in the possession or control of the Contractor.

Agreement with Robert E. VanHeuiUExhibit A-Scope of Services Rev. 07-01-18

Page 2 ends

EXHIBIT B

Consultant shall submit a monthly invoice to the City based on costs incurred on a time and materials basis. The 2018 schedule of fees are as follows:

Hourly rate: $175 per hour
Non-productive travel time: $50 per hour
Per Diem when traveling: $65 per day
Other expenses to be billed at cost
Vehicle miles: $0.575 per mile
Agreement with Robert E. VanHeuiUExhibit B-Schedule of Fees Rev. 07-01-18

Page 1 ends

EXHIBIT C

INSURANCE REQUIREMENTS
Without limiting the Consultant's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Consultant shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Consultant's insurance. The minimum coverages, provisions and endorsements are as follows:

COMMERCIAL GENERAL LIABILITY INSURANCE
Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
Exact structure and layering of the coverage shall be left to the discretion of Consultant; however, any excess or umbrella policies used to meet the I Ci'-jUII CiU 1111 lllv vi 1011 UC. Ol IC.Cul av UI uau a;:, ll It. UI 1uc;11y11 ·~ vUVt-1 a~c; CII IU shall otherwise follow form.

The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Consultant to comply with the insurance requirements of this Agreement:

Coverage shall be on a "pay on behalf' basis with defense costs payable in addition to policy limits;
There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.

BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at Agreement with Robert E. VanHeuit/Exhibit D-Labor Compliance Rev. 07-01-18

Page 1 ends

least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.

In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Consultant and/or its subcontractors involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.

WORKERS' COMPENSATION
Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.

The indemnification and hold harmless obligations of Consultant included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).

This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.

PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Consultant. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney's Office.

COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.

Agreement with Robert E. VanHeuit/Exhibit O-Labor Compliance Rev. 07-01-18

Page 2 ends

Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Consultant's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.

Primary and non-contributing. Each insurance policy provided by Consultant shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Consultant's insurance.

Cancellation.

Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.

Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for UI IJ VUU'-1\J VU V \J UI IU \JA.V\Jt,"'L I IVI I t-'UJ 111\JI IL VI t,,'I \JII IIUII h.l ..:JI IUII t,J\J effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non renewal.

ADDITIONAL INSURANCE RELATED PROVISIONS
Consultant and City agree as follows:

Consultant agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Consultant, provide the same minimum insurance coverage required of Consultant, except as with respect to limits.

Consultant agrees to monitor and review all such coverage and assumes Agreement with Robert E. VanHeuiUExhibit D-Labor Compliance Rev. 07-01-18

Page 3 ends

all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Consultant agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.

Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.

The City reserves the right to withhold payments from the Consultant in the event of material noncompliance with the insurance requirements set forth in this Agreement.

EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Consultant, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Consultant shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.

EVIDENCE OF COMPLIANCE
Consultant or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.

Upon City's request, Consultant shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:

EBIX Inc.

City of Santa Clara [City Manager's Office]
P.O. Box 100085- S2 or 1 Ebix Way
Duluth, GA 30096 John's Creek, GA 30097
Telephone number: 951-766-2280
Agreement with Robert E. VanHeuit/Exhibit D-Labor Compliance Rev. 07-01-18
Page4
Fax number: 770-325-0409
Email address: [email protected]

QUALIFYING INSURERS
All of the insurance companies providing insurance for Consultant shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.

Agreement with Robert E. VanHeuiUExhibit D-Labor Compliance Rev. 07-01-18

Page 5 ends

EBIX Insurance No. S200003234
AMENDMENT NO. 1

TO THE AMENDED AND RESTATED AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANT A CLARA, CALIFORNIA,
AND
ROBERT E. VAN HEUIT

PREAMBLE
This agreement ("Amendment No. 1 ") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Robert E. Van Heuit, an Oregon individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Amended and Restated Agreement for Services between the City of Santa Clara, California, and Robert E. Van Heuit, an Oregon individual," dated September 27, 2018 (the "Original Agreement"); and
B. The Parties entered into the Original Agreement for the purpose of having Contractor provide certain support activities further outlined in Exhibit A - Scope of Services, for the City Place Santa Clara project, and the Parties now wish to amend the Original Agreement to update the term and compensation and payment.

The Parties agree as follows:

AGREEMENT TERMS AND CONDITIONS

1. AMENDMENT TERMS AND CONDITIONS
A. That Section 2 of the Original Agreement, entitled "TERM OF AGREEMENT" is hereby amended to read as follows:

B. That Section 6 of the Original Agreement, entitled "COMPENSATION AND PAYMENT" is hereby amended to read as follows:

Amendment No. 1 to Agreement/Van Heuit. Page 1
Rev. 08/28/2018
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this
Agreement is Two Hundred and Fifty Thousand Dollars
($250,000.00), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed, or materials provided in excess of the maximum compensation, shall be at Contractor's expense.

Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

3. COUNTERPARTS
II
II
II
II
II
II
II
II
II
II
II
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.

Amendment No. 1 to Agreement/Van Heuit. Page 2
Rev. 08/28/2018
The Parties acknowledge and accept the terms and conditions of this Amendment No. 1 as evidenced by the following signatures of their duly authorized representatives.

CITY OF SANT A CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form:
~p
City Attorney
"CITY"
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408} 615-221 O
Fax: (408} 241-6771
ROBERT E. VAN HEUIT
an individual
Dated: ~z_3,, ·2-c!) I 7·.

By (Signature): ~ /£.;jf
Name: Robert E. VanHeuit
Title: Owner
Principal Place of
Business Address: 2621 Heritage Way, Medford OR 97504
Email Address: [email protected]
Telephone: (541) 499-6123
Fax: -~~~~~~----------"CONTRACTOR"'
Amendment No. 1 to AgreemenVVan Heuit. Page 3
Rev. 08/28/2018

EXHIBIT A

SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are set forth below.

In a letter dated April 2, 2015 ("Letter"), the Santa Clara County Department of Environmental Health ("County" or "DEH"), acting as the Solid Waste Local Enforcement Agency, has required the City of Santa Clara ("City"), as the applicant for the planned development of the mixed-used project located in City, and commonly referred to as City Place Santa Clara ("Project"}, to retain a suitably qualified independent consultant(s) to provide third party review to DEH for its review of the Project.

Contractor shall provide technical advice and assistance to the County for its review of the Project on behalf of the City. The Consultant will coordinate efforts with the City and the County.

Page 1 ends

EXHIBIT B

Consultant shall submit a monthly invoice to the City based on costs incurred on a time and materials basis. The 2019 schedule of fees are as follows:

Hourly rate: $175 per hour
Non-productive travel time: $50 per hour
Per Diem when traveling: $65 per day
Other expenses to be billed at cost
Vehicle miles: $0.575 per mile
Amendment No. 1 to Agreement with Van Heuit/ Exhibit B
Rev. 08/28/2018

Page 1 ends

discover from any source whatsoever in the performance of the services under this agreement, and Contractor shall not use the name of the Developer or the Developer logo on any division or project of Developer or otherwise without the prior written consent of City, which consent may be withheld in the City's sole and absolute discretion. Upon termination of this agreement, upon request of the City, the Contractor shall promptly return to the City's possession all copies of any writings, drawings or other confidential information which are then in the possession or control of the Contractor. The Contractor further agrees that, upon the request of the City at any time under this agreement, the Contractor shall promptly return to the City all such copies of writings, drawings or other confidential information which are then in the possession or control of the Contractor.

Agreement with Robert E. Van Heuit/Exhibit A-Scope of Services Rev. 07-01-18

Page 2 ends

Ebix Insurance No. S200003234
AMENDMENT NO. 2

TO THE AMENDED AND RESTATED

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ROBERT E. VAN HEUIT

PREAMBLE
This agreement ("Amendment No. 2") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Robert E. Van Heuit, an Oregon individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

RECITALS
A. The Parties previously entered into an agreement entitled "Agreement for Services between the City of Santa Clara, California, and Robert E. Van Heuit", dated June 2, 2015 (Agreement);
B. The Agreement was previously amended by Amendment No. 1, dated May 6, 2016, Amendment No. 2, dated October 28, 2016, Amendment No. 3, dated September 5, 2017. The parties entered into an Amended and Restated Agreement for Services, dated September 27, 2018. Amendment No. 1 to the Amended and Restated Agreement for Services, dated October 31, 2019, and is again amended by this Amendment No. 2. The Agreement and all previous amendments are collectively referred to herein as the "Agreement as Amended"; and
C. The Parties entered into the Agreement as Amended for the purpose of having Contractor provide certain support activities further outlined in Exhibit A - Scope of Services, for the City Place Santa Clara project, and the Parties now wish to amend the Agreement to update the term.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 2 of the Agreement as Amended, entitled "TERM OF AGREEMENT" is amended to read as follows:

Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the Amendment No. 2 to the Amended and Restated AgreemenURobert E. Van Heuit Rev. 10/25/19

Page 1 ends

term of this Agreement shall begin on June 2, 2015 and terminate on December 31, 2021.

2. Except as set forth herein, all other terms and conditions of the Agreement as Amended shall remain in full force and effect. In case of a conflict in the terms of the Agreement as Amended and this Amendment No. 2, the provisions of this Amendment No. 2 shall control.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 2 as evidenced by the following signatures of their duly authorized representatives.

City Attorney

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
... / DEANNA J.
\tJ City Mana
"CITY"
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ROBERT E. VAN HEUIT
an individual
Dated: DA'..~/. •11 h< ,~ /t; L (.) L- D
By (Sign~~:~; =~=•1=~6=~:=f<=E=<~=t=1=~=H=
1 ~=(~=F=,==«-=·c =============== -----------------
Tit I e: Owner
Principal Place of
Business Address: 2621 Heritage Way, Medford, OR 97504
Email Address: [email protected]
Telephone: (541) 499-6123
Fax: ~~---------------"CONTRACTOR"
Amendment No. 2 to the Amended and Restated AgreemenURobert E. Van Heuit Rev. 10/25/2019

Page 2 ends

EBIX Insurance No. S2000003234
AMENDMENT NO. 3

TO THE AMENDED AND RESTATED

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,
AND
ROBERT E. VAN HEUIT

PREAMBLE
This agreement ("Amendment No. 3") is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Robert E. Van Heuit, an Oregon individual, (Contractor). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."

The Agreement and all previous amendments are collectively referred to herein as the "Agreement as Amended"; and
C. The Parties entered into the Agreement as Amended for the purpose of having Contractor provide certain support activities further outlined in Exhibit A - Scope of Services, for the City Place Santa Clara project, and the Parties now wish to amend the Agreement as Amended to increase the total contract amount by $50,000 to a total not to exceed contract amount of $300,000.

NOW, THEREFORE, the Parties agree as follows:

AMENDMENT TERMS AND CONDITIONS

1. Section 10 of the Agreement as Amended, entitled "Compensation and Payment" is amended to read as follows:

In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in Amendment No. 3 to Agreement/Robert E. Van Heuit
Rev. 10/25/19

Page 1 ends

accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is Three Hundred Thousand Dollars ($300,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Contractor's expense.

Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

2. Except as set forth herein, all other terms and conditions of the Agreement as Amended shall remain in full force and effect. In case of a conflict in the terms of the Agreement as Amended and this Amendment No. 3, the provisions of this Amendment No. 3 shall control.

The Parties acknowledge and accept the terms and conditions of this Amendment No. 3 as evidenced by the following signatures of their duly authorized representatives.

BRIAN DOYLE
City Attorney

CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
"CITY"
~ ~~m-fi• U. ANTANA
City Man er
1500 Warb· on Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ROBERT E. VAN HEUIT

INDIVIDUAL
Dated: --"-"'"'-:J-"'-4...,.l,;.c/-+'7-+._._7-'-. =o_· ~l-_., ( _________ _ /),, /,'-/) / __ .,.,
By (Signature): _,l"'"''·;"",i..,,..,'...,"""'1:;.,....1r_-c..-,"-·/_,_,':._,, <c.,,--<== .. +-.'&".¥""'"··-·""""'"'z:f~-,------'--- Name: 'Robert E~Van Heuit -----"---'-------------------- Ti tie: Owner ------------------Principal Place of 2621 Heritage Way Business Address: Medford, OR 97504 _..;._;__ _ _,_ _____________ _ Email Address: [email protected]
Telephone: (541) 499-6123
Fax: _,__,_ _______________ _
"CONTRACTOR"
Amendment No. 3 to Agreement/Robert E. Van Heuit
Rev. 10/25/2019
Page2
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1692 Agenda Date: 1/11/2022

REPORT TO COUNCIL

SUBJECT
Update on Review and Monitoring of Transportation Demand Management Measures

COUNCIL PILLAR
Promote and Enhance Economic, Housing and Transportation Development

BACKGROUND
Transportation Demand Management (TDM) measures are infrastructure and activities that reduce single occupancy vehicle trips. The City of Santa Clara’s existing Climate Action Plan (CAP), draft CAP update under preparation, and adopted Transportation Analysis Policy, establish goals related to reductions in Vehicle Miles Traveled (VMT) regarding new development or expansion projects. These VMT reduction goals for individual projects are often achieved through the inclusion of TDM measures such as the project’s inclusion of multimodal supportive infrastructure or offerings such as bicycle racks, showers with changing rooms, repair facilities, transit vouchers, remote work offerings, shuttles, or guaranteed ride home programs.

Determining TDM measures is a multistep process and monitoring compliance occurs over the life of the project. First, VMT reduction requirements are established through conditions of approval or through the California Environmental Quality Act process during entitlement. Next, projects identify specific TDM measures to achieve VMT reduction requirements prior to the issuance of the Building Permit. Projects then begin implementation of the TDM measures after occupancy and demonstrate compliance with annual monitoring throughout the life of the project.

TDM measure review and compliance monitoring for a single project spans multiple years and involves City oversight by Community Development staff and technical support by Public Works staff.

In previous years, TDM measures were a relatively infrequent requirement for land use entitlements, but have now become a standard requirement for new development. Staff has identified 50 projects with TDM requirements. As a result, there is an increasing demand for the staff resources needed to review and oversee their compliance.

During the August 17, 2021 City Council check-in on annual priority setting, Councilmember Jain requested the City hire a consultant to develop a TDM template and requirements for developments to submit TDM measures. He estimated the cost to be $150,000. The City’s review and oversight of TDM measures are not currently funded by entitlement or building permit fees.

DISCUSSION
Research of neighboring cities indicates that there is not an established approach to the imposition and monitoring TDM requirements as practices vary considerably from city to city. For overall conduct of the program some cities have consultant support and others rely on city staff. Those that rely on City of Santa Clara Printed on 1/6/2022Page 1 of 2
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22-1692 Agenda Date: 1/11/2022
city staff acknowledge that current resources provided may not be adequate to cover the work required. The City of Santa Clara did not add staff commensurate with the Council approved TDM requirements and, therefore, the City does not currently have staff capacity or expertise to take on this new activity.

City staff is preparing a Request for Proposals (RFP) to be released in Spring 2022 to seek consultant services for ongoing review and administration of TDM requirements for development projects. The proposal will include a scope of work for a consultant to track compliance of TDM measures for the City’s 50 development projects approved with TDM requirements and all applicable projects approved in the future. The scope of work will also request the consultant create a menu of TDM measures with identified VMT reduction percentages available to be selected for pending and future projects. Given the State of California’s recent laws intended to streamline housing development, the RFP will also request services to research and recommend ordinance or policy changes to insure incorporation of TDM measures for streamlined projects that would be limited to ministerial approvals by the City.

Based on the responses to the RFP relating to consultant cost for services, staff will also propose new fee(s) added to the City’s fee schedule to address cost recovery review of TDM measures proposed and for ongoing compliance review.

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.

FISCAL IMPACT
There is no fiscal impact to the City, other than city staff time researching and releasing an RFP to find consultant services to review and monitor TDM requirements. After responses are received from the RFP, a cost recovery approach will be presented to fund the consultant services through the creation of new fees for applicable development.

COORDINATION
This report has been coordinated with the City Attorney’s Office.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> .

RECOMMENDATION
Note and file report.

Reviewed by: Andrew Crabtree, Director of Community Development Approved by: Deanna J. Santana, City Manager
City of Santa Clara Printed on 1/6/2022Page 2 of 2
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1066 Agenda Date: 1/11/2022

REPORT TO COUNCIL

SUBJECT
Action to Adopt a Resolution approving the Water Supply Assessment for the Proposed Office Complex at 2901 Tasman Drive

COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
California Water Code Section 10910 and Section 15155(b) of the Guidelines to the California Environmental Quality Act (CEQA) requires a water utility to prepare a Water Supply Assessment (“Assessment”) for any development project that, among other criteria, includes more than 500 dwelling units, 500,000 square feet of retail space, 250,000 square feet of office space, employs more than 1,000 people or would demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling unit project (67.8 acre-feet/year). The applicant for a project at 2901 Tasman Drive (“Applicant”) provided development details proposing to construct an office complex consisting of approximately 1,070,344 gross square feet (gsf) of office space and 74,254 gsf of irrigable landscaping. Because the project proposes to construct more than 250,000 square feet of office space, Water Utility staff prepared this Assessment for the City Council’s consideration and approval (Attachment 2).

The Assessment requires an analysis of the utility’s current and future water supplies as well as the current and projected water demands in the utility’s service area. The Assessment must include a determination as to whether additional water supplies are necessary or if sufficient water supplies exist for the proposed development. The water utility’s governing body (the City Council) approve water supply assessments.

DISCUSSION
City staff prepared an Assessment for the proposed project at 2901 Tasman Drive (Attachment 2).

The Assessment provides a detailed analysis of the amount of water necessary to meet the needs of the proposed development and the City’s ability to supply that amount of water based on the projections identified in the City’s current 2020 Urban Water Management Plan (UWMP) as well as water supply assessments prepared after the City’s UWMP was approved by Council in 2021. The Assessment found that the City’s water utility has sufficient water supplies to meet the projected water demand of this development during normal, single dry year, and multiple dry year scenarios.

Santa Clara City Code, Chapter 13.15, Article IV - Regulation of Recycled Water Service and Use, Section 13.15.160 states that “it is the purpose and intent of the City Council to prohibit the use of potable water for landscape irrigation where recycled water is made available and meets all applicable standards.” It also states that “it is also the purpose and intent of the City Council to City of Santa Clara Printed on 1/6/2022Page 1 of 2
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22-1066 Agenda Date: 1/11/2022
require the use of recycled water for all other non-potable uses where recycled water is made available, meets all applicable standards for those uses and is determined to be suitable and economically feasible therefor.” The Assessment has determined that the existing recycled water system is available to serve 2901 Tasman Drive and pending approval by South Bay Water Recycling, recycled water should be utilized for this project to the maximum extent possible to supplant the use of potable water. Utilization of recycled water for approved uses is addressed during the development application process in order to promote sustainability and conservation of the City’s potable water supply, especially with the City declaring a local drought emergency and implementing a Water Shortage Contingency Plan Stage 2. Expansion of the recycled water system to serve future uses may be required as deemed necessary.

Although Council’s approval of the Assessment is necessary for the final approval for the project, approval, denial, conditional approval or any act on the Assessment does not guarantee that the proposed project at 2901 Tasman Drive will be approved, nor does it obligate the City to approve, deny, conditionally approve, take any action on, or make any decision on the associated project application.

ENVIRONMENTAL REVIEW
The preparation of a water supply assessment is a part of the environmental review process for the Project and is a prerequisite to the adoption of an Environmental Impact Report (EIR) under Section 15155(b) of the CEQA Guidelines.

FISCAL IMPACT
The adoption of the resolution to approve this Assessment does not have a fiscal impact on the City.

However, the approval of this Assessment is a required part of the development process. While the proposed development will have a fiscal impact on the City, that impact is not analyzed as part of this report.

COORDINATION
This report has been coordinated with the City Attorney’s Office.

RECOMMENDATION
Adopt a Resolution approving the Water Supply Assessment for the Proposed Office Complex at 2901 Tasman Drive.

Reviewed by: Gary Welling, Director, Water and Sewer Utilities Approved by: Deanna J. Santana, City Manager

ATTACHMENTS

1. Resolution Approving WSA for 2901 Tasman Drive

2. 2901 Tasman Drive Water Supply Assessment
City of Santa Clara Printed on 1/6/2022Page 2 of 2
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Resolution/2901 Tasman Drive WSA Page 1 of 3
Rev: 11/22/17
RESOLUTION NO. _____

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA
APPROVING A WATER SUPPLY ASSESSMENT FOR 2901
Tasman Drive

BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

WHEREAS, the City of Santa Clara (“City”) approved and adopted a 2020 Urban Water Management Plan in 2021;
WHEREAS, California Water Code Section 10910 and Section 15155(b) of the Guidelines to the California Environmental Quality Act ("CEQA") require a water utility to prepare a Water Supply Assessment for development applications for "water-demand projects"; WHEREAS, the City is a public water supplier within the City limits and the City Council of the City of Santa Clara is the governing body of the City's public water system; WHEREAS, the City of Santa Clara requires that landscaping for projects be drought tolerant and recycled water be used for irrigation, cooling towers and other permitted uses when properties are proximate to recycled water resources to reduce the cumulative use of potable water;
WHEREAS, on June 25, 2021, the proponent of a development ("Applicant") requested a Water Supply Assessment for an office complex located at 2901 Tasman Drive; and, WHEREAS, City Staff prepared a Water Supply Assessment for 2901 Tasman Drive ("Development WSA").

NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

1. That the Water Supply Assessment for the proposed 2901 Tasman Drive is attached to the RTC for the Council meeting of January 11, 2022.

2. Approval of Development WSA. The Council has reviewed the Development WSA at a regular public meeting conducted on January 11, 2022. Based upon the data and conclusions set forth therein, and the evidence and testimony presented at the public meeting, the Council Resolution/2901 Tasman Drive WSA Page 2 of 3
Rev: 11/22/17
hereby finds that there is adequate water to supply 2901 Tasman Drive without creating a negative impact on the groundwater basin and that the City has an adequate supply to provide water for the project during single or multiple dry years for at least a 20-year projection, and, the council hereby approves the Development WSA.

3. Use of Recycled Water. The Development WSA has determined that the existing recycled water system is available to serve 2901 Tasman Drive and pending approval from South Bay Water Recycling. Section 13.15.160 of the City Code states the purpose and intent of the City Council is to require the use of recycled water for all non-potable uses where recycled water is made available. Recycled water should be utilized for this project to the maximum extent possible to supplant the use of potable water. Utilization of recycled water for approved uses is addressed during the development application process in order to promote sustainability and conservation of the City’s potable water supply. Expansion of the recycled water system to serve future uses may be required as a condition of development.

4. No Obligation to Act on the 2901 Tasman Drive Development Application. The Council's approval of the Development WSA is limited to approving the Development WSA; approving the Development WSA does not approve the application for 2901 Tasman Drive. Nothing in this resolution or the Council's approval of the Development WSA shall be construed as requiring the City or its Council to consider, act on, approve, conditionally approve, deny, or take any other action on the application to develop 2901 Tasman Drive.

5. Direction to Staff. Staff is hereby directed to include the Development WSA, the City of Santa Clara 2020 Urban Water Management Plan, and any other applicable Urban Water Management Plan related documents in the appendix of the Environmental Impact Report for 2901 Tasman Drive.

6. Effective date. This resolution shall become effective immediately.

I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED

AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA, AT A REGULAR MEETING Resolution/2901 Tasman Drive WSA Page 3 of 3
Rev: 11/22/17
THEREOF HELD ON THE 11th DAY OF JANUARY 2022, BY THE FOLLOWING VOTE:

AYES: COUNCILORS:

NOES: COUNCILORS:

ABSENT: COUNCILORS:

ABSTAINED: COUNCILORS:

ATTEST: ______________________________

NORA PIMENTEL, MMC

ASSISTANT CITY CLERK

CITY OF SANTA CLARA

Attachments incorporated by reference: None

City of Santa Clara i Water Supply Assessment/2901 Tasman Drive

2901 Tasman Drive
Water Supply Assessment
City of Santa Clara Water and Sewer Utilities

for Compliance with California Water Code Section 10910 Approved by City Council
Resolution # TBD

City of Santa Clara I Water Supply Assessment / 2901 Tasman Drive

TABLE OF CONTENTS

1. INTRODUCTION ................................................................................................................................2

2. WATER DEMAND ..............................................................................................................................3

3. WATER SUPPLIES ..............................................................................................................................5

3.1 Water Sources ..................................................................................................................................5

3.2 Groundwater ....................................................................................................................................7

3.3 Recycled Water .............................................................................................................................. 12

4. WATER SUPPLY PROJECTIONS ....................................................................................................... 14

4.1 Supply Volumes ............................................................................................................................. 14

4.2 Projected Water Supply ................................................................................................................ 15

4.3 Water Supply Reliability ................................................................................................................ 16

5. PROPOSED PROJECT WATER DEMANDS ....................................................................................... 22

5.1 Water Demand to be Met by Recycled Water .............................................................................. 23

5.2 Summary of Existing and Estimated Water Demands ................................................................... 23

5.3 Projected Water Demand for Other Proposed Projects ............................................................... 24

6. CONCLUSION ................................................................................................................................. 25

City of Santa Clara 2 Water Supply Assessment / 2901 Tasman Drive

1. INTRODUCTION
Senate Bill 610 (2001) codified at Water Code Section 10910 et seq, requires detailed information on water supply availability for certain projects that meet or exceed the following criteria:
 A residential development of more than 500 dwelling units  A proposed shopping center or business establishment employing more than 1,000 persons or having more than 500,000 square feet of floor space.
 A proposed commercial office building employing more than 1,000 persons or having more than 250,000 square feet of floor space.
 A proposed hotel or motel, or both, having more than 500 rooms.  A proposed industrial, manufacturing, or processing plant, or industrial park planned to house more than 1,000 persons, occupying more than 40 acres of land, or having more than 650,000 square feet of floor area.
 A mixed-use project that includes one or more of the projects specified in this subdivision.  A project that would demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling-unit project.
2901 Tasman Drive(“Project”), a project located in the City of Santa Clara (“City”) is subject to a Water Supply Assessment (“WSA” or “Assessment”) in accordance with the California Water Code and the California Environmental Quality Act. The proposed Project plans to redevelop 10.14 acres of land covering APNs 104-49-025 & 104-49-026. The project proposes to construct a new 12-story office building, a new 2-story amenity building, and a new 8-story parking structure. The City of Santa Clara’s City Council approved and adopted an Urban Water Management Plan in 2021 (“UWMP” or “2020 UWMP”). The 2020 UWMP did not specifically include or address this Project since it was proposed and evaluated after the adoption of the UWMP. However, the UWMP included projected increases in water demand due to densification and intensification of both residential and non-residential land uses.

Projected uses within the proposed development are described in further detail in the Projected Water Demand for the Proposed Project section.

This Assessment relies on the data contained in and used to develop the 2020 UWMP to analyze the availability of the City’s water supply to serve the Project along with existing and planned future uses.

Unless noted, all figures in this Assessment are in acre-feet (AF) and are for total water demand or supply, i.e. both potable and recycled water.

The findings of this Assessment will be submitted to the City Council for approval and included in the environmental review process. The City’s approval, denial, conditional approval or any act on this Assessment does not guarantee that the Project will be approved and does not obligate the City to approve, deny, conditionally approve, take any action, or make any decision on the Project application.

City of Santa Clara 3 Water Supply Assessment / 2901 Tasman Drive

2. WATER DEMAND
The Demand Study projections were developed using the Demand Side Management Least Cost Planning Decision Support System model (DSS Model) developed by Maddaus Water Management for long-term projections. The DSS Model (also “end use” model type) projected long-term demand based on expected service area growth for population and employment. The model also considers conservation measures using benefit-cost analysis and benefit-to-cost ratio as economic indicators.

Demands were also projected based on savings from the plumbing code and active conservation programs. Another model used in the study was the Econometric Model, which was used to develop future rebound water demands associated with short term effects. The Econometric Model projects future demands based on historical post-drought recovery demands considering factors such as economy, rate increases, conservation activity and weather.

The basic methodology of the DSS Model required forecasting demands based on customer billing data categorized by user type. The model was calibrated by comparing water use data with available demographic data to characterize water usage for each user type in terms of number of users per account and per capita water use.1 In order to calibrate the volume of water allocated to specific end uses in each customer category, published data on average per capita indoor water use and average per capita end uses were combined with the number of water users. After calibration was completed, the projected population and employment projections were incorporated. The population and employment projection data in models utilized 2019 ABAG data provided by the City’s Community Development Department. The 2020 UWMP demand projections are inclusive of passive water conservation savings.

The resulting projected water demand by category is shown in Table 2-1 and only includes potable water demands.

1 Bay Area Water Supply and Conservation Regional Water Demand and Conservation Projections, June 2020

City of Santa Clara 4 Water Supply Assessment / 2901 Tasman Drive Table 2-1 Retail: Demands for Potable Water - Projected Use Type Additional
Description
Projected Water Use
Report to the Extent that Records are Available
2025 2030 2035 2040 2045 (opt)
Single Family 4,683 4,893 5,076 5,206 5,336
Multi-Family 4,458 4,659 4,833 4,957 5,080
Commercial 6,184 6,461 6,704 6,875 7,046
Industrial 1,748 1,826 1,895 1,943 1,991
Institutional/Governmental Institutional 672 702 729 747 766 Institutional/Governmental Municipal 560 585 607 623 638 Losses 6.0% Losses (5-yr
average) 1,168 1,221 1,267 1,299 1,331
TOTAL 19,473 20,348 21,111 21,649 22,189
NOTES: Total sum may not be exact due to rounding.

Table 2-2 shows total water demands including both potable and recycled water. Recycled water demands were estimated based on anticipated growth in recycled water use due to new development (landscape irrigation, data centers, dual plumbing), including proposed infrastructure upgrades to supply new developments, and historical demand.

Table 2-2 Retail: Total Gross Water Demands (Potable and Non-Potable) 2020 2025 2030 2035 2040 2045 (opt)
Potable Water Demand
From Table 2-1 18,302 19,473 20,348 21,111 21,649 22,189 Recycled Water Demand 3,499 4,570 5,489 6,586 7,908 9,488 TOTAL WATER DEMAND 21,801 24,043 25,836 27,697 29,557 31,676 NOTES: Units of volume in AF.

City of Santa Clara 5 Water Supply Assessment / 2901 Tasman Drive Table 3 calculates projected changes in water demand during each 5-year planning horizon through 2045. The Project’s proposed water demand will be analyzed against this table to determine whether demands fall within growth projections in the 2020 UWMP.

Table 3 – Projected Changes in Water Demands (AF) – 2020 UWMP 2021-2025 2026-2030 2031-2035 2036-2040 2041-2045
Single Family 225 210 183 130 130
Multi-Family -264 201 174 124 123
Commercial 877 277 243 171 171
Industrial 138 78 69 48 48
Institutional 110 30 27 18 19
Municipal 215 25 22 16 15
Recycled 1,071 919 1,097 1,322 1,580
Losses -131 53 46 32 32
Total 2,241 1,793 1,861 1,861 2,118

3. WATER SUPPLIES

3.1 Water Sources
The City relies on four water supply sources; surface water from San Francisco Public Utilities Commission (SFPUC), treated surface water from Santa Clara Valley Water District (Valley Water), groundwater, and recycled water. Surface water from the two wholesalers, SFPUC and Valley Water, provides less than half of the City’s water supply, averaging about 40% since 2015. City owned- and operated-wells provide approximately 60%. Since a portion of the City’s water supply is reliant on SFPUC and Valley Water, the City is directly affected by the water supply conditions faced by each wholesaler.

Additionally, the City water system is separated into three interconnected zones (Zone 1, 2 and 2A) in order to provide optimum pressures throughout the City. The zones and water source by area are shown in Figure 3-1 on the next page.

City of Santa Clara 6 Water Supply Assessment / 2901 Tasman Drive

Figure 3-1: Pressure Zones and Water Source by Area
1--·-·-···-····
I••••••••••••••••~
I
•••••••••••NN•
I
I
i
i
.. !
i
~·· I
"····~ I
t•--1••-
-· I
i
82 i
!
I
!''~
I •••
~--·~ .....

I
\
LEGEND
-·-···-··· .................................. .

ZONE 1 (SFPUC+GW )
ZONE2A (SCVWD)
Hyd roScience
ZONE 2 (SCVWD+GW)
FIGURE 6-1

CITY OF SANTACLARA

URBAN WATER MANAGEMENT PLAN

WATER SUPPLY SOURCES

City of Santa Clara 7 Water Supply Assessment / 2901 Tasman Drive

3.2 Groundwater
The City’s source of groundwater is supplied by the Santa Clara subbasin (DWR Basin 2-9.022). The Santa Clara subbasin is part of the Santa Clara Valley Basin which is divided into four subbasins, including the Santa Clara subbasin. The Santa Clara subbasin extends from the Coyote Narrows near Metcalf Road to the southern San Francisco Bay as the northern boundary. It is bounded on the west by the Santa Cruz Mountains and on the east by the Diablo Range. The two mountain ranges converge at the Coyote Narrows to form the southern limit of the subbasin. The Santa Clara subbasin covers a surface area of 189,581 acres. The subbasin is further divided into two groundwater management areas based on differences in hydrogeology, land use and water supply management: Santa Clara Plain and Coyote Valley with the City overlaying the Santa Clara Plain (Figure 3-2).

2 https://water.ca.gov/-/media/DWR-Website/Web-Pages/Programs/Groundwater-Management/Bulletin-118/Files/2003-Basin- Descriptions/2_009_02_SantaClaraSubbasin.pdf

City of Santa Clara 8 Water Supply Assessment / 2901 Tasman Drive Figure 3-2: Map of Santa Clara Plain Groundwater Basin

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,~7;: SANTA CLARA SUBBASIN (DWR 2-9 .02)

SANTA CLARA PLAIN

COYOTE VALLEY
FIGURE 6-2

CITY OF SANTA CLARA

URBAN WATER MANAGEMENT PLAN
MAPOFGROUNDWATERBA~N

City of Santa Clara 9 Water Supply Assessment / 2901 Tasman Drive The Santa Clara subbasin is designated as a high-priority subbasin. Basin prioritization was previously based on the 2015 Sustainable Groundwater Management Act (SGMA) Basin Prioritization program, which included overlying population, projected growth, number of public wells, number of total wells, irrigation acreage, groundwater reliance, and documented groundwater impacts as criteria for basin priority designation. The current version, updated in 2019, includes the addition and emphasis of “adverse impacts on local habitat and local streamflows” as a specific component for the designation of basin priority.3 This component only adds a maximum of two points toward the total points used to designate subbasin priority. With a total of 24.5 points, the Santa Clara subbasin falls above the minimum threshold of 21 points for high-priority designation. This also signifies that even without the addition of the new criteria used in the 2019 SGMA Basin Prioritization process, the Santa Clara subbasin has increased (negative impact) in another area.

Valley Water manages the groundwater supply in Santa Clara County and works with various water retailers in the area to prevent subsidence and overdraft of the basin to ensure reliable water supplies.

The Santa Clara Valley Basin is not adjudicated or currently listed as overdrafted.4 This can be attributed to Valley Water’s network of imported surface water supplies, groundwater recharge system, water supply long-term planning, and aggressive conservation efforts through community outreach and rebate programs. The Santa Clara Valley Basin is shown in Figure 6-3 and is the largest of three interconnected groundwater basins occupying approximately 246,000 acres of the 835,000 acres of Santa Clara County.

Development and agricultural needs in the 1920s increased the water demand within the Santa Clara Valley. This increased extraction of groundwater led to subsidence in several of the aquifers. The Santa Clara Valley Water Conservation District (currently Santa Clara Valley Water District and referred to as Valley Water) was originally formed in 1929 to alleviate land surface subsidence and stop groundwater overdraft. The rapid development of Santa Clara County occurred again in the 1960s and the corresponding increased demand on the water supply again resulted in groundwater level decline, land subsidence and observed saltwater intrusion of shallow aquifers adjacent to San Francisco Bay.5 The continued overdrafting of the basin resulted in a significant lowering of the groundwater table, significant subsidence of the land in the northern portion of the valley and compaction of several aquifers. When an aquifer is compacted the storage capacity of the aquifer can be substantially reduced.

Once lost, storage capacity cannot be regained.

3 Department of Water Resources, SGMA 2019 Basin Prioritization Results – https://water.ca.gov/Programs/Groundwater-Management/Basin-Prioritization 4 Department of Water Resources, California’s Groundwater Interim Update 2016, DWR Bulletin 118 5 Valley Water 2016 Groundwater Management Plan

City of Santa Clara 10 Water Supply Assessment / 2901 Tasman Drive Figure 3-3: Map of Santa Clara Valley Basin

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FIGURE 6-3

CITY OF SANTA CLARA

URBAN WATER MANAGEMENT PLAN

MAP OF SANTA CLARA VALLEY BASIN

City of Santa Clara 11 Water Supply Assessment / 2901 Tasman Drive To avoid any further subsidence and loss of aquifer capacity, Valley Water has attempted to operate the basin to maintain or increase groundwater storage through managed recharge with local supplies augmented with imported raw water. In the late 1960s Valley Water’s conjunctive management of surface water and groundwater effectively halted overdrafting and resulting subsidence. Valley Water is currently using projected supply, carryover capacity and anticipated demand to predict potential water shortages. The 2016 Santa Clara Valley Water District Groundwater Management Plan (GMP) 6 describes the groundwater recharge program in detail.

The Santa Clara subbasin currently provides about 60% of the City’s potable water supply. The City’s wells are strategically distributed around the City adding to the reliability of the water system and minimizes the possibility of localized subsidence due to overdrafting. To minimize the possibility of long- term overdraft conditions, the City monitors groundwater levels and meters the groundwater pumping for all City owned production wells. To further ensure that no overdrafting is occurring the City operates a recycled water system and requires new development along the recycled water distribution system to use recycled water for approved irrigation and industrial uses. The City also encourages and promotes water conservation to minimize groundwater usage.

The allowable withdrawal or safe yield of groundwater by the City is dependent upon multiple factors including withdrawals by other water agencies, quantity of water recharged and the carry over storage from the previous year. Valley Water’s current (2019) groundwater report shows the City as being the second highest user of groundwater pumping, at 17%, for the Santa Clara Plain subbasin designated as North County (Zone W-2).7
Table 4 shows the City’s annual groundwater pumping volumes in acre-feet from 2016 to 2020. In 2020 a total of 10,835 AF was pumped from the current production wells within the City. In 2020, groundwater from wells accounted for 49.7% of all water used in the City (including recycled water) and

59.2% of the total potable water supply.

Table 4: Retail Groundwater Volume Pumped – Potable
Groundwater Type Location or Basin Name 2016 2017 2018 2019 2020 Alluvial Basin Santa Clara Valley 10,115 12,224 10,658 9,779 10,835 TOTAL 10,115 12,224 10,658 9,779 10,835
NOTES: Units of volume in AF.

6 https://s3.us-west-2.amazonaws.com/assets.valleywater.org/2016%20Groundwater%20Management%20Plan.pdf 7 2019 Valley Water Annual Groundwater Report.

City of Santa Clara 12 Water Supply Assessment / 2901 Tasman Drive

3.3 Recycled Water
Recycled water within the City is supplied from the jointly owned San Jose-Santa Clara RWF through South Bay Water Recycling (SBWR). This recycled water meets the requirements of the CCR Title 22, Division 4. The City and all users of recycled water must ensure that a number of regulatory requirements specified in CCR Title 22 are met. CCR Title 22 specifies the types of use and the conditions under which the use of recycled water is allowed. SBWR provides oversight, promotes recycled water, operates the recycled water distribution system, and provides technical guidance to recycled water customers.

The existing recycled water distribution system was laid out to maximize service to large potential recycled water customers. Recycled water is currently used within the City for irrigation at parks, landscape street medians, multi-family residential units and schools. Several industries use recycled water in industrial processes, cooling towers and for toilet flushing in dual plumbed buildings.

The recycled water distribution system is shown in Figure 3-4.

It is the purpose and intent of the City Council to require the use of recycled water for all non-potable uses where recycled water is made available per Santa Clara City code Article IV, Regulation of Recycled Water Service and Use, Section 13.15.160. Recycled Water should be utilized for this project to the maximum extent possible to supplant the use of potable water. Utilization of recycled water for approved uses is addressed during the development application process in order to promote sustainability and conservation of the City’s potable water supply. Expansion of the existing recycled water system may be required to serve future uses as deemed necessary.

City of Santa Clara 13 Water Supply Assessment / 2901 Tasman Drive

Figure 3-4: Recycled Water Distribution System
Hyd roScience
FIGURE 6-7

CITY OF SANTA CLARA

URBAN WATER MANAGEMENT PLAN

RECYCLED WATER DISTRIBUTION SYSTEM

City of Santa Clara 14 Water Supply Assessment / 2901 Tasman Drive

4. WATER SUPPLY PROJECTIONS

4.1 Supply Volumes
Historically, groundwater has been the predominant source of water used to meet water demand in the City. Since the last UWMP, the amount of recycled water used within the City has risen steadily. In 2020 recycled water represented 19% of total water sales. Purchased treated water from SFPUC and Valley Water represented 34% of the water portfolio during this period. There are efforts to minimize reliance on purchased water and maximize resources. Table 5 shows the volume of water supplied for 2020.

Table 5: Water Supplies — Actual
Water Supply Additional Detail on
Water Supply
2020
Actual Volume Water Quality Total Right or Safe
Yield (opt)
Purchased or Imported
Water Valley Water 3,982 Drinking Water 4,560
Purchased or Imported
Water SFPUC 3,485 Drinking Water 5,041
Groundwater
(not desalinated) Wells 10,835 Drinking Water 23,048
Recycled Water SBWR 3,499 Recycled Water --
Total 21,801 32,649
NOTES: Purchased water from Valley Water is based on current contractual amount (total right). Purchased water from SFPUC is based on current contract allocation (total right). Groundwater safe yield is system capacity.

City of Santa Clara 15 Water Supply Assessment / 2901 Tasman Drive

4.2 Projected Water Supply
Table 5-1A and Table 5-1B below show the City’s projected potable water supplies for 2025 to 2045.

Table 5-1A accounts for the possibility of an interruption of the City’s SFPUC water supply.

Table 5-1A: Water Supplies — Projected
Water Supply
Additional
Detail on
Water
Supply
Projected Water Supply
2025 2030 2035 2040 2045 (opt)
Reasonably
Available
Volume
Reasonably
Available
Volume
Reasonably
Available
Volume
Reasonably
Available
Volume
Reasonably
Available
Volume
Purchased or
Imported Water
Valley
Water 4,560 4,560 4,560 4,560 4,560
Purchased or
Imported Water SFPUC 5,041 0 0 0 0
Groundwater
(not
desalinated)
Wells 23,048 23,048 23,048 23,048 23,048
Recycled Water SBWR 4,570 5,489 6,586 7,908 9,488
Total 37,219 33,097 34,194 35,516 37,096
NOTES: Assumes interruption of SFPUC water supply after 2028.

City of Santa Clara 16 Water Supply Assessment / 2901 Tasman Drive Table 5-1B: Water Supplies — Projected
Water Supply
Additional
Detail on
Water
Supply
Projected Water Supply
2025 2030 2035 2040 2045 (opt)
Reasonably
Available
Volume
Reasonably
Available
Volume
Reasonably
Available
Volume
Reasonably
Available
Volume
Reasonably
Available
Volume
Purchased or
Imported Water Valley Water 4,560 4,560 4,560 4,560 4,560 Purchased or
Imported Water SFPUC 5,041 5,041 5,041 5,041 5,041
Groundwater
(not
desalinated)
Wells 23,048 23,048 23,048 23,048 23,048
Recycled Water SBWR 4,570 5,489 6,586 7,908 9,488
Total 37,219 38,138 39,235 40,557 42,137
NOTES: Assumes no interruption of SFPUC water supply after 2028.

4.3 Water Supply Reliability
The water service reliability assessment requires the comparison of supply and demand projections for three scenarios: (1) a normal year, (2) a single dry year, and (3) five consecutive dry years. The percent of total annual supply available for each scenario is based on projected availability of water supplies identified and cutbacks determined by the City’s wholesalers. Because allowable groundwater pumping is based only on the sustainable yield, groundwater supply availability is not expected to decrease during dry years. Additionally, recycled water is not dependent on climatic effects and is assumed to be unaffected by any drought conditions.

Table 6 presents the base years for each of the three conditions described above as well as the corresponding percentages of average water supply available during each year under these conditions.

City of Santa Clara 17 Water Supply Assessment / 2901 Tasman Drive

Table 6: Basis of Water Year Data (Reliability Assessment) Year Type Base Year
Available Supplies if Year Type Repeats
Quantification of available supplies is provided in
this table as either volume only, percent only, or
both.

Volume Available % of Average Supply
Average Year 2020 32,649 100%
Single-Dry Year 1977 31,293 96%
Consecutive-Dry Years 1st Year 1988 31,293 96%
Consecutive-Dry Years 2nd Year 1989 31,529 97%
Consecutive-Dry Years 3rd Year 1990 29,686 91%
Consecutive-Dry Years 4th Year 1991 29,686 91%
Consecutive-Dry Years 5th Year 1992 29,686 91%
NOTES: All City water sources combined. Base years represent the year for which Valley Water’s analysis is based.

Volume available and percent of average supply is calculated based on the combination of available sources.

Using the water supply and demand projections and the portion of supplies available during normal year, single dry year, and five consecutive dry year conditions summarized above, this section presents the comparison between projected supply and projected demand for each condition in five-year increments through 2045.

The City relies on imported water from Valley Water and the SFPUC. The City’s contract with the SFPUC is interruptible and may be unavailable after 2028. The SFPUC is scheduled to decide whether to make the City a permanent customer by December 2028. If the SFPUC supplies are interrupted, the City may need to increase use of Valley Water supplies.

In December 2018, the State Water Resources Control Board (SWRCB) adopted amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary Bay-Delta Plan (BDP) to establish water quality objectives to maintain the health of the Bay-Delta ecosystem. The SWRCB is required by law to regularly review this plan. The adopted Bay-Delta Plan was developed with the stated goal of increasing salmonid populations in three San Joaquin River tributaries (the Stanislaus, Merced, and Tuolumne Rivers) and the Bay-Delta. The BDP requires the release of 30-50% of the “unimpaired flow” on the three tributaries from February through June in every year type. In SFPUC modeling of the new flow standard, it is assumed that the required release is 40% of unimpaired flow.

City of Santa Clara 18 Water Supply Assessment / 2901 Tasman Drive If the Bay-Delta Plan is implemented, the SFPUC will be able to meet the projected water demands presented in this UWMP in normal years but would experience supply shortages in single dry years or multiple dry years. Implementation of the Bay-Delta Plan will require rationing in all single dry years and multiple dry years. The SFPUC has initiated an Alternative Water Supply Planning Program to ensure that San Francisco can meet its Retail and Wholesale Customer water needs, address projected dry years shortages, and limit rationing to a maximum 20% system-wide in accordance with adopted SFPUC policies. This program is in early planning stages and is intended to meet future water supply challenges and vulnerabilities such as environmental flow needs and other regulatory changes; earthquakes, disasters, and emergencies; increases in population and employment; and climate change. As the region faces future challenges – both known and unknown – the SFPUC is considering this suite of diverse non-traditional supplies and leveraging regional partnerships to meet Retail and Wholesale Customer needs through 2045.

Due to the uncertainty of the interruptible supply from the SFPUC, the City has analyzed supply reliability under two primary scenarios:
 Scenario 1: supply interruption due to contract termination in 2028.  Scenario 2: continued SFPUC supply beyond 2028.

Table 7-1A/B through Table 7-3A/B presents the service supply reliability assessment for each condition.

During normal water years, there are no reductions in supplies to retailers due to BDP implementation and water supplies should be adequate to meet projected demands in the 2025 to 2045 planning period as shown in the tables.

City of Santa Clara 19 Water Supply Assessment / 2901 Tasman Drive Table 7-1A: Normal Year Supply and Demand Comparison - (Scenario 1) 2025 2030 2035 2040 2045 (Opt)
Supply totals
(autofill from Table 6-9A) 37,219 33,097 34,194 35,516 37,096 Demand totals
(autofill from Table 4-3) 24,043 25,836 27,697 29,557 31,676 Difference 13,176 7,261 6,497 5,959 5,420
NOTES: Assumes SFPUC supply does not exist beyond 2028 and BDP implementation in 2023.

Table 7-1B: Normal Year Supply and Demand Comparison - (Scenario 2) 2025 2030 2035 2040 2045 (Opt)
Supply totals
(autofill from Table 6-9B) 37,219 38,137 39,235 40,557 42,136 Demand totals
(autofill from Table 4-3) 24,043 25,836 27,697 29,557 31,676 Difference 13,176 12,301 11,538 11,000 10,460
NOTES: Assumes continued allocation from SFPUC beyond 2028 and BDP implementation in 2023.

During a single dry year, the City projects no reduction in supplies from groundwater.

SFPUC has indicated that during a single critical dry year it will follow the Tier 2 reduction plan described later in this document. Under Scenario 1, the City can expect up to a 36% cutback in SFPUC supply through 2028 before supply termination. Under Scenario 2, the City can expect up to a 46% cutback in a single-dry year through 2045.

During a single critical dry year, there are no projected shortfalls in total available water supplies independent of whether the City receives or does not receive SFPUC water after contract negotiations with SFPUC in 2028.

City of Santa Clara 20 Water Supply Assessment / 2901 Tasman Drive Table 7-2A: Single Dry Year Supply and Demand Comparison 2025 2030 2035 2040 2045 (Opt)
Supply totals 35,404 33,097 34,194 35,516 37,096
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 11,361 7,261 6,497 5,959 5,420
NOTES: Assumes SFPUC supply does not exist beyond 2028 and reduced allocation from SFPUC due to BDP in 2023.

Table 7-2B: Single Dry Year Supply and Demand Comparison 2025 2030 2035 2040 2045 (Opt)
Supply totals 35,404 36,323 37,420 38,692 39,818
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 11,361 10,486 9,723 9,135 8,141
NOTES: Assumes continued allocation from SFPUC beyond 2028 and reduced allocation from SFPUC due to BDP in 2023.

During a multiple dry year event, the City projects no reduction in supplies from groundwater. Valley Water is expected to continue to manage groundwater recharge for the sub-basin.

Based on supply reductions to the SFPUC RWS, during multiple dry years under Scenario 1, the City can expect a reduction of up to 45% by 2028. Under Scenario 2, the City can expect a cutback as much as 54% of normal by the 4th and 5th years of a dry consecutive period beginning in 2045.

City of Santa Clara 21 Water Supply Assessment / 2901 Tasman Drive Table 7-3A: Multiple Dry Years Supply and Demand Comparison 2025 2030 2035 2040 2045 (Opt)
First year
Supply totals 35,404 33,097 34,194 35,516 37,096
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 11,361 7,261 6,497 5,959 5,420
Second
year
Supply totals 34,951 33,097 34,194 35,516 37,096
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 7,261 6,497 5,959 5,420
Third
year
Supply totals 34,951 33,097 34,194 35,516 37,096
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 7,261 6,497 5,959 5,420
Fourth
year
Supply totals 34,951 33,097 34,194 35,516 37,096
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 7,261 6,497 5,959 5,420
Fifth
year
Supply totals 34,951 33,097 34,194 35,516 37,096
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 7,261 6,497 5,959 5,420
NOTES: Assumes SFPUC supply does not exist beyond 2028 and reduced allocation from SFPUC due to BDP in 2023.

City of Santa Clara 22 Water Supply Assessment / 2901 Tasman Drive Table 7-3B: Multiple Dry Years Supply and Demand Comparison 2025 2030 2035 2040 2045 (Opt)
First
year
Supply totals 35,404 36,323 37,420 38,692 39,818
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 11,361 10,486 9,723 9,135 8,141
Second
year
Supply totals 34,951 35,869 36,916 38,238 39,818
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 10,033 9,219 8,681 8,141
Third
year
Supply totals 34,951 35,869 36,916 38,238 39,818
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 10,033 9,219 8,681 8,141
Fourth
year
Supply totals 34,951 35,869 36,916 37,936 39,414
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 10,033 9,219 8,379 7,738
Fifth
year
Supply totals 34,951 35,869 36,715 37,936 39,414
Demand totals 24,043 25,836 27,697 29,557 31,676
Difference 10,908 10,033 9,018 8,379 7,738
NOTES: Assumes continued allocation from SFPUC beyond 2028 and reduced allocation from SFPUC due to BDP in 2023.

Given the supply and demand comparison presented previously, the results of the supply reliability assessment can be summarized as follows:
 Normal Year – The City can anticipate meeting all water demands through 2045 under normal year supply conditions given the stated assumptions.
 Single Dry Year – The City can anticipate meeting all water demands through 2045 under single dry year supply conditions given the stated assumptions.
 Five Consecutive Dry Years – The City can anticipate meeting all water demands through 2045 under consecutive five dry-year supply conditions given the stated assumptions.

As shown in the tables above, the City would be able to increase the amount of groundwater pumped to meet reasonably anticipated deficiencies from other sources, thus supply is projected to be sufficient to meet demand out to 2045. The Santa Clara groundwater basin is not adjudicated, which means the right to pump groundwater from the basin has not been given by judgment of a court or board.

For each of the five-year increments presented above, the five-year dry period indicates that supplies will be able to meet demands through increased groundwater pumping and implementation of drought conservation programs. The City will be able to address the projected demands without rationing.

5. PROPOSED PROJECT WATER DEMANDS

City of Santa Clara 23 Water Supply Assessment / 2901 Tasman Drive 2901 Tasman Drive represents an increase in water demand of 121.4 AF/yr over the historic water demand across the proposed Project area. Historic water usage at the original Project development was considered in the 2020 UWMP, therefore this Assessment will only address the City’s ability to meet the increased water demand. Average historical usage was calculated using the Project’s existing water demand from 2016-2020. The proposed increase, tabulated in Table 9 of this section, is within the modeled 2020 UWMP growth projections (Table 3 of this Assessment).

5.1 Water Demand to be Met by Recycled Water
Recycled water is currently available at the proposed Project location. As such, the Project will be required to connect to the existing recycled water system. Santa Clara City Code, Chapter 13.15, Article IV - Regulation of Recycled Water Service and Use, Section 13.15.160 states that “(a) It is the purpose and intent of the City Council to prohibit the use of potable water for landscape irrigation where recycled water is made available and meets all applicable standards.” It also states that “(b) It is also the purpose and intent of the City Council to require the use of recycled water for all other non-potable uses where recycled water is made available, meets all applicable standards for those uses and is determined to be suitable and economically feasible therefor.” The Assessment has determined that the existing recycled water system is available to serve 2901 Tasman Drive and pending approval by South Bay Water Recycling, recycled water should be utilized for this project to the maximum extent possible to supplant the use of potable water. Utilization of recycled water for approved uses and requirements is addressed during the development application process in order to promote sustainability and conservation of the City’s potable water supply. Expansion of the recycled water system to serve future uses may be required as deemed necessary.

The Project shall implement all applicable recycled water uses on-site including those not specifically addressed in this Assessment. The project shall make every effort to offset the use of potable water. All recycled water line extensions for on-site use and demand would require City, South Bay Water Recycling, and State Water Resources Control Board - Division of Drinking Water approval.

5.2 Summary of Existing and Estimated Water Demands
A summary of the existing and estimated water demands for the Focus Area are found in Table 8. The existing and estimated water demands are further broken down in Table 9 into projected annual demand increases based on construction timelines submitted by the Applicant.

Table 8 – Existing and Estimated Water Demand per Year
Status Water Source Development Units Gal/Day Acre-Ft/Yr Office Proposed Potable 1,070,344 Sq ft. 117,737.8 131.9 Irrigation Proposed Recycled 74,524 Sq ft. 5,738.4 6.4
Historic Existing Commercial (15,044.6 ) (16.9)
Total Demand (increase per year) 108,431.6 121.4

City of Santa Clara 24 Water Supply Assessment / 2901 Tasman Drive Table 9 – Project Water Demand Increase (Acre-Ft/Yr)
2021-2025 2026-2030 2031-2035 2036-2040 2041-2045
Office 131.9 0.0 0.0 0.0 0.0
Irrigation 6.4 0.0 0.0 0.0 0.0
Historic (16.9) 0.0 0.0 0.0 0.0
Total 121.4 0.0 0.0 0.0 0.0

5.3 Projected Water Demand for Other Proposed Projects
Table 10 and Table 11 show a summary of the projected water demand changes by user category. If the timeframe for a project to be built spans several years, the earliest possible date was used to calculate the changes in Table 11. The use categories of Single Family, Multi-Family, Commercial, Industrial, Institutional, and Municipal match the use categories used in the development of the 2020 UWMP.

Recycled water is also included as a category. The values in Table 10 and Table 11 below summarize the projected changes in water demand for each user category and the planning period in which the change is expected to occur. If a proposed project resulted in a change of use, such as a commercial building being converted to single-family residential housing, the existing water demand was subtracted from the corresponding category and the new water demand was added to the category for the new use.

Table 11 summarizes proposed water demands for Projects assessed since the adoption of the 2020 UWMP. Since this is the first Project since adoption of the 2020 UWMP, Table 10 has no demand reported.

Table 10 – Changes in Water Demand (excluding 2901 Tasman) 2021-2025 2026-2030 2031-2035 2036-2040 2041-2045
Single Family 0.0 0.0 0.0 0.0 0.0
Multi-Family 0.0 0.0 0.0 0.0 0.0
Commercial 0.0 0.0 0.0 0.0 0.0
Industrial 0.0 0.0 0.0 0.0 0.0
Institutional 0.0 0.0 0.0 0.0 0.0
Municipal 0.0 0.0 0.0 0.0 0.0
Recycled 0.0 0.0 0.0 0.0 0.0
Total 0.0 0.0 0.0 0.0 0.0

City of Santa Clara 25 Water Supply Assessment / 2901 Tasman Drive Table 11 – Changes in Water Demand (Including 2901 Tasman) 2021-2025 2026-2030 2031-2035 2036-2040 2041-2045
Single Family 0.0 0.0 0.0 0.0 0.0
Multi-Family 0.0 0.0 0.0 0.0 0.0
Commercial 115.0 0.0 0.0 0.0 0.0
Industrial 0.0 0.0 0.0 0.0 0.0
Institutional 0.0 0.0 0.0 0.0 0.0
Municipal 0.0 0.0 0.0 0.0 0.0
Recycled 6.4 0.0 0.0 0.0 0.0
Total 121.4 0.0 0.0 0.0 0.0

6. Conclusion
This Assessment analyzed the impacts of changes in contractual limitations on water supply, proposed development projects, and other additional factors that have occurred since the original 2020 UWMP was developed and adopted. Based on the analysis contained in this Assessment, the City of Santa Clara Water Utility has determined that supplies would be sufficient to provide service for the proposed Project. The City Manager declared a Local Emergency for Extreme Drought Conditions on July 12, 2021 and the City Council ratified on July 13, 2021. The City has also implemented a Water Shortage Contingency Plan Stage 2 which requires up to 20% reduction in water usage. As such, the project may be subject to water supply or capacity fees, additional water efficiency standards, and establishment of annual water budgets. Additionally, alternative water supplies must be utilized to the maximum extent possible. Supplies such as recycled water (see Water Demand to be Met by Recycled Water section, page 23), rainwater/stormwater capture and reuse, greywater reuse, reclaiming wastewater onsite or other water supplies might need to be developed to offset potable water demand for this project.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-12589 Agenda Date: 1/11/2022

REPORT TO COUNCIL

SUBJECT
Approval of a Fraud, Waste and Abuse Policy; Authorization of a Whistleblower Hotline; Delegation of Signature Authority to City Auditor for Vendor Agreements Related to the Whistleblower Hotline

COUNCIL PILLAR
Enhance Community Engagement and Transparency

BACKGROUND
The Government Finance Officers Association (GFOA) recommends that every government agency establish policies and procedures to encourage and facilitate the reporting of fraud or abuse and questionable accounting or auditing practices. A fraud, waste, and abuse policy raises awareness amongst staff, and is an excellent tool for the City to communicate its ethical standards.

In addition, in 2009, California Government Code section 53087.6 enabled local government auditors to establish whistleblower hotlines and to provide whistleblower protections with the approval of their respective legislative bodies. A whistleblower hotline, combined with a whistleblower protection clause, helps the City detect and prevent fraud and questionable practices against the City because most incidents are identified through reporting by employees.

DISCUSSION
The City adopted a Code of Ethics and Values but does not currently have a Fraud, Waste, and Abuse Reporting Policy (Fraud Policy) that defines unacceptable behaviors, assigns oversight responsibility, and provides direction for reporting suspected fraud. A fraud policy raises awareness and helps the City set a tone of oversight and commitment to combating fraud and corruption. The attached City Auditor’s Office Fraud Policy provides detailed policy and procedures including definitions of fraud, waste, and abuse; oversight responsibilities; reporting procedures; guidelines and steps for investigation allegations; whistleblower protection and reporting results. The policy also helps promote consistent organizational behavior and facilitates the development of controls that will aid in the detection and prevention of fraud against the City.

The City does not currently have a whistleblower hotline that allows for anonymous reporting of suspected fraud, waste, unethical or illicit activity. However, other cities in California, such as Oakland, San Jose, San Diego, Los Angeles, Long Beach and Sacramento, have whistleblower hotlines. Establishing a whistleblower hotline will benefit the City by empowering employees to report suspected fraud and illicit activity. The hotline will provide an anonymous method for individuals to report suspected fraud or questionable practices to a hotline monitored by a third-party provider.

Acceptance of this Fraud Policy will allow the City Auditor’s office to implement a whistleblower hotline.

City of Santa Clara Printed on 1/6/2022Page 1 of 2
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22-12589 Agenda Date: 1/11/2022

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

FISCAL IMPACT
The estimated cost for the whistleblower hotline over the three-year term is for an amount not to exceed $10,000. Funding for this service was included in the FY 2021/22 Annual Operating Budget and appropriations in future years will be requested and approved through the annual budget process.

COORDINATION
This report has been coordinated with the City Attorney’s Office.

RECOMMENDATION

1. Approve the attached Fraud, Waste, and Abuse Policy;

2. Authorize the establishment of a whistleblower hotline to be contracted out to an independent third party; and

3. Delegate signature authority to the City Auditor to negotiate and execute third party vendor agreement(s) to establish and operate the whistleblower hotline.

Reviewed by: David Noce, Audit Manager
Approved by: Deanna J. Santana, City Manager

ATTACHMENTS

1. City of Santa Clara - Fraud, Waste, and Abuse Policy City of Santa Clara Printed on 1/6/2022Page 2 of 2
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Fraud, Waste, and Abuse Policy Page 1 of 5

City Auditor’s Office
Fraud, Waste, and Abuse Policy

POLICY:

The City of Santa Clara (City) is committed to protecting its revenue, property, information and other assets from any attempt, either by members of the public, contractors, vendors, or its own officers, elected officials, and employees, to gain financial or other benefits by fraudulent conduct. The Fraud, Waste, and Abuse Reporting Policy (Fraud Policy) is
established to facilitate the development of controls that will aid in the detection and prevention of fraud against the City. It is the intent of the City to promote consistent organizational behavior by providing guidelines and assignment responsibility for the development of controls and conduct of investigations.

The Fraud Policy sets out specific guidelines and
responsibilities regarding appropriate actions that must be followed for fraud and other similar irregularities investigations.

This policy is to ensure that every employee is aware that the City is committed to establishing and maintaining a fair, ethical and honest work environment.

As authorized by California Government Code section
53087.6, the City offers a Whistleblower Hotline provided by an independent third-party with a primary objective of providing a means for City employees, residents, and other interested complainants to confidentially report (1) any activity or conduct in where instances of fraud, waste, or abuse by a local government employee are suspected, and (2) any violations of certain Federal or State laws and regulations relating to fraud, waste, and abuse as it is defined in California Government Code 53087.6(f)2.

City of
Santa Clara
The Center of What's Possible
Fraud, Waste, and Abuse Policy Page 2 of 5

Scope of Policy:

This policy applies to any irregularity, or suspected irregularity, involving employees as well as elected officials, consultants, vendors, contractors, or outside agencies doing business with employees of such agencies, and/or any other parties with a business relationship with the City.

Any investigative activity required shall be conducted without regard to the suspected wrongdoer's length of service,
position/title, or relationship to the City.

Responsibility:

Management is responsible for the detection and prevention of fraud, waste, abuse, misappropriations, and other
irregularities. California Government Code 53087.6(f)2 defines fraud, waste, or abuse as follows:
o Any activity by a local agency or employee th at is
undertaken in the performance of the employee’s
official duties, including activities deemed to be outside the scope of his or her employment, that:
 Is in violation of any local, state, or federal law or regulation relating to:
• corruption,
• malfeasance,
• bribery,
• theft of government property,
• fraudulent claims,
• fraud,
• coercion,
• conversion,
• malicious prosecution,
• misuse of government property, or
• willful omission to perform duty,
 Is economically wasteful, or
 Involves gross misconduct.

Each member of the City’s Executive and Middle Management team shall be familiar with the types of improprieties that might occur within his or her area of responsibility and be alert for any indication of irregularity. Any irregularity that is detected or suspected must be reported immediately to the City Auditor, who may coordinate investigations with the appropriate
entities and personnel.

Other Irregularities: Irregularities concerning certain ethical and/or labor - management issues (e.g. discrimination, sexual harassment, substance abuse, and workplace violence/threats) are
included in the statutory definition and purview of this policy.

Employees will be able to report such activities to the whistleblower hotline confidentially and recei ve the same whistleblower protection. However, these ethical and/or labor- management irregularities should be resolved by departmental management and the Human Resources Department rather
Fraud, Waste, and Abuse Policy Page 3 of 5

than the City Auditor’s Office. They will be forwarded to the appropriate management function for review and action.

If there is any question as to whether an action constitutes fraud, contact the City Auditor for guidance.

Investigation
Responsibilities:

The City Auditor has the primary responsibility for the investigation of all suspected acts as defined in the policy. If the investigation substantiates that inappropriate activities have occurred, the City Auditor will issue reports to appropriate designated personnel and, if appropriate, to the City Council through the Audit Committee.

Decisions to prosecute or refer the examination results to the appropriate law enforcement and/or regulatory agencies for independent investigation may be made in conjunction with the City Attorney and the City Manager, as appropriate and only in the event there is no conflict of interest in doing so, as well as final decisions on disposition of the case, except to the extent that the initiation of litigation may require approval by the City Council

Confidentiality: The City Auditor t reats all information received confidentially.

Any person who suspects dishonest or fraudulent activity shall call the whistleblower hotline or notify the City Auditor immediately and should not attempt to personally conduct investigations or interviews/in terrogations related to any suspected act (see REPORTING PROCEDURE section
below).

Investigation results will not be disclosed or discussed with anyone other than those who have a legitimate need to know.

Public disclosure shall be made only in accordance with applicable law.

Authorization for
Investigating Suspected
Claims:

It is the City’s intent to fully investigate any suspected acts of fraud, misappropriation, or other similar irregularity. An objective and impartial investigation shall be conducted regardless of the position, title, and length of service or relationship with the City of any party who might be or becomes involved in or becomes/is the subject of such
investigation.

The City Auditor, or authorized representative, will have free and un restricted access to all records, documents, systems and files of the City and/or other property of any City department, office or agency. It is the duty of any officer, employee, or agent of the City having control of such records to permit access to, and examination thereof, upon the request of the City Auditor, or authorized representative. Any such officer, employee, or agent is strongly encouraged to fully cooperate with the City Auditor, or authorized representative, Fraud, Waste, and Abuse Policy Page 4 of 5

and to make full disclosure of all pertinent information. The City Auditor shall also be permitted access to any and all records, documents, systems, and files of any City vendor or contractor, as allowed by City agreements and contracts.

Reporting Procedures: Great care must be taken i n the investigation of suspected improprieties or irregularities so as to avoid mistaken accusations or alerting suspected individuals that an
investigation is under way.

An employee, or other interested complainant, who discovers or suspects fraudulent a ctivity will have several options to report anonymously.

Reporting can occur by:
o Calling an anonymous third -party managed
Whistleblower Hotline;
o Reporting online through a third -party managed web
intake form at the City’s website, or
o Contacting the City Auditor directly, either in person, by email, or by direct phone call.

The City Auditor would need sufficient information to properly investigate any complaints. The following information is necessary to begin and continue processing a
complaint/concern:
o The name of the alleged person or persons committing
the misconduct, including their title(s) and the
department they work for
o Specific information regarding the misconduct, and if known, how long it has gone on
o Circumstances surrounding how the alleged
misconduct occurred
o Where or in what department the alleged misconduct
occurred
o Witnesses to the misconduct, if any
o If applicable, what would the complainant like done
about the complaint/concern

The employee or other complainant may remain anonymous
to the extent allowed by law. All inquiries concerning the activity under investigation from the suspected individual, his or her attorney or representative, or any other inquirer should be directed to the City Auditor or the City Attorney. No information concer ning the status of an investigation will be given out. The proper response to any inquiries is, "I am not at liberty to discuss this matter." Under no circumstances should any reference be made to "the allegation," "the crime," "the fraud," "the forgery," "the misappropriation," or any other specific reference.

The reporting individual should be informed of the following:

Fraud, Waste, and Abuse Policy Page 5 of 5

o Do not contact the suspected individual in an effort to determine facts or demand restitution
o Do not discuss the case, facts, suspicions , or
allegations with anyone unless specifically asked to do so by the City Attorney or City Auditor.

Whistleblower
Protection:

The City will not retaliate, nor will it tolerate retaliation, intimidation, or coercion against those who, in good faith, report suspected violations of the City’s Fraud Policy. This also includes reporting of any irregularities concerning certain unethical and/or labor -management issues. Neither the City, nor any person acting on behalf of the City, shall do any of the following to retaliate against a report being made under this Fraud Policy:
o Dismiss or threaten to dismiss the reporting employee; o Discipline, suspend or threaten to discipline or suspend the reporting employee;
o Impose any penalty upon the reporting employee; or
o Intimidate or coerce the reporting employee.

Violation of this section shall result in discipline up to and including dismissal in accordance with applicable federal, state, and local administrative laws

Discipline: Violations of this policy by an employee will be handled in accordance with the City’s Personnel Rules and any other applicable law, rule or regulation. All other persons or entities that are found to have violated this policy will be either removed from the applicable board or committee or subject to suspension by the City from future business transactions for a specified period of time.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1632 Agenda Date: 1/11/2022

REPORT TO COUNCIL

SUBJECT
Action on Adoption of a Resolution Declaring Weeds a Public Nuisance; Approval of the Amended and Restated Agreement between Santa Clara County and the City of Santa Clara for Weed Abatement Services; and Setting February 8, 2022 for Public Hearing

COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure

BACKGROUND
The City of Santa Clara has deemed the overgrowth of weeds on properties within the City a public nuisance. The City mandates that property owners conduct weed abatement activities through their own means in a timely manner. However, there are some property owners that, even with proper notification, do not comply with the weed abatement orders. As outlined in California Government Code Sections 39501 et seq., and the City’s Municipal Code Chapter 8.15, the City authorizes the Fire Department to abate weeds on any non-compliant property.

The County of Santa Clara has administered the Weed Abatement program for 13 jurisdictions within Santa Clara County, including the City of Santa Clara, since 1976. In 2021, the County requested a restated agreement between the County and the City of Santa Clara for Weed Abatement Services in order for the County to fully recover its service costs in administering the City’s weed abatement program and to make other clarifying changes. There have been 8 previous approved agreements between the parties since the program’s inception. The County has requested an amendment to the existing agreements where the participating jurisdictions would take part in the program and bear the financial burden of any future financial shortfalls. Note that not every year has shortfalls. In years where there are excess amounts of fees collected, these are put forward to the upcoming year’s budget to offset operating costs.

As proposed, in the event that the amount of reimbursement through the assessment process is not sufficient for the costs of the program, the County will invoice the City and the other participating jurisdictions on a pro-rata share basis. The pro-rata share formula developed by the County is based on the percentage of work performed within each of the jurisdictions.

DISCUSSION
The Fire Department requests to commence the 2021-2022 Weed Abatement Program for the forthcoming season, and approve the Amended and Restated Agreement between the County and the City of Santa Clara for Weed Abatement Services. It is requested that the City Council, in accordance with Section 8.15.030 of the City Code, adopt the attached Resolution declaring weeds to be a public nuisance. Additionally, and as required by SCCC 8.15.030-040, the Fire Department requests that Council authorize the posting of a Notice to Destroy Weeds with a Public Hearing City of Santa Clara Printed on 1/6/2022Page 1 of 2
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22-1632 Agenda Date: 1/11/2022
scheduled for February 8, 2022, to hear public input regarding the proposed destruction and/or removal of weeds from non-compliant properties.

ENVIRONMENTAL REVIEW
Santa Clara County has determined the Weed Abatement Program to be categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to Guideline 15308.

FISCAL IMPACT
The County’s costs of abatement are assessed to the parcel owner and are managed by the County.

Costs include inspection, correspondence, abatement services, and cost recovery collection.

In the event of a potential financial shortfall in the program, the Fire Department will absorb the City’s pro-rata share costs in its Community Risk Reduction Division’s Operating Budget. The City’s pro- rata share costs are estimated to be a few thousand dollars, based on the number of parcels and the number of participating jurisdictions in the program. To date, and over approximately 46 years, this has not occurred. The Amended and Restated Agreement between the County and the City for Weed Abatement currently under consideration by the council provides for a mechanism to recover the shortfall from the 13 participating jurisdictions.

COORDINATION
This report has been coordinated by the Finance Department and City Attorney’s Office.

RECOMMENDATION

1. Adopt a Resolution Declaring Weeds a Nuisance;

2. Approve the Amended and Restated Agreement Between The County of Santa Clara and The City of Santa Clara for Weed Abatement Services; and

3. Set February 8, 2022 as the date for the required Public Hearing on the Notice to Destroy Weeds.

Reviewed by: Ruben Torres, Fire Chief
Approved by: Deanna J. Santana, City Manager

ATTACHMENTS

1. Resolution Declaring Weeds a Nuisance

2. Amended and Restated Agreement Between The County of Santa Clara and The City of Santa Clara for Weed Abatement Services

3. Public Notice to Destroy Weeds
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Resolution/Declaring Weeds a Public Nuisance Page 1 of 2 Rev: 11/22/17
RESOLUTION NO. _____

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA

DECLARING WEEDS TO BE A PUBLIC NUISANCE AND SETTING

A HEARING DATE FOR THE CITY COUNCIL TO HEAR PUBLIC

INPUT REGARDING THE NOTICE TO DESTROY WEEDS

BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

WHEREAS, weeds are growing in the City of Santa Clara upon streets, alleys, sidewalks and upon private property; these weeds bear seeds of a wingy or downy nature or may grow and, when dry, become a fire menace or those weeds that are otherwise noxious and dangerous; and,
WHEREAS, Santa Clara City Code § 8.15.030 authorizes the City Council to pass a resolution declaring such weeds to be a public nuisance, and states that unless such a nuisance i s abated, the work of abating the nuisance shall be done by the City, with the expenses assessed upon the lots from which the weeds are removed.

NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

1. That these weeds constitute and will continue to constitute a public nuisance, and it is ordered that this public nuisance be abated in the manner provided in Chapter 8.15 [entitled "Weeds" - § 8.15.010 et seq.] of "The Code of the City of Santa Clara, California" and the "Amended and Restated Agreement Between the County of Santa Clara and the City of Santa Clara for Weed Abatement Services" (a copy is on file in the office of the City Clerk).

2. That on February 8, 2022 at 6:00 p.m., or as soon as the matter may be heard, in the Council Chambers of the City of Santa Clara, public comment regarding the Notice to Destroy Weeds and the proposed destruction or removal of weeds shall be heard.

3. That the City Manager, or her designee, is hereby directed to cause notice of the adoption of this resolution and notice of this hearing to be given by posting and by publication in the manner and form provided in §§ 8.15.030, 8.15.040 and 8.15.080 of "The Code of the City of Resolution/Declaring Weeds a Public Nuisance Page 2 of 2 Rev: 11/22/17
Santa Clara, California.”

4. That the Santa Clara County Agricultural Commissioner is also directed to give notice by mail to the owner or owners of each individual parcel of land upon which weeds will be abated by the City at least ten (10) calendar days prior to such abatement. Before the expiration of the ten- day period, any owner may voluntarily proceed to abate the nuisance. The notice may be given by mail, addressed to the owner at the last known address as shown on the last County Equalized Assessment Roll.

5. Effective date. This resolution shall become effective immediately.

I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED

AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA, AT A REGULAR MEETING THEREOF HELD ON THE ___ DAY OF _________, 2022, BY THE FOLLOWING VOTE:

AYES: COUNCILORS:

NOES: COUNCILORS:

ABSENT: COUNCILORS:

ABSTAINED: COUNCILORS:

ATTEST: ______________________________

NORA PIMENTEL, MMC

ASSISTANT CITY CLERK

CITY OF SANTA CLARA

Attachments incorporated by reference: None
1 AMENDED AND RESTATED AGREEMENT BETWEEN

THE COUNTY OF SANTA CLARA AND THE CITY OF

SANTA CLARA FOR WEED ABATEMENT SERVICES

THIS AGREEMENT for the Abatement of Weeds by County of Santa Clara for the City of Santa Clara (“AGREEMENT”) is made and entered into by and among the County of Santa Clara, a political subdivision of the State of California (“COUNTY”), and the City of Santa Clara (“CITY”), a municipal corporation, effective this __________________ (“EFFECTIVE DATE”). COUNTY and CITY may be collectively referred to herein as the “PARTIES” and individually as a “PARTY,” unless specifically identified otherwise.

RECITALS

WHEREAS, pursuant to California Government Code Sections 39501 et seq., the CITY has the authority to require and provide for the abatement of hazardous weeds on properties within its jurisdiction either by ordinance or pursuant to the procedures set forth in Article 2 of Chapter 13, Division 3 of Title 4 of the Government Code (commencing with Section 39560); and

WHEREAS, the CITY has duly established under Chapter 8.15 of the Santa Clara City Code a program to abate as a public nuisance hazardous weeds and brush situated on properties in the CITY; and

WHEREAS, under provisions of the California Health and Safety Code and its ordinances, the County also has duly established a program to enforce the abatement of hazardous weeds; and

WHEREAS, for reasons of efficiency, economy of operations and resources, and the mutual benefit of both parties, the CITY and the COUNTY desire the COUNTY to provide weed abatement services on properties in the CITY and to assist the CITY in administering certain parts of the CITY’S weed abatement program under Chapter 8.15 of the Santa Clara City Code, all in accordance with the terms and provisions set forth in this AGREEMENT; and

WHEREAS, the CITY may contract with COUNTY pursuant to Government Code section 51300 et seq. for the County’s performance of specified City functions; and

WHEREAS, the CITY and COUNTY entered into an “Agreement for the Abatement of Weeds by County of Santa Clara for City of Santa Clara” on February 23, 1976, as subsequently amended, which provided for the abatement of weeds by the COUNTY on behalf of the CITY; and

WHEREAS, the CITY and COUNTY desire to enter into an amended and restated AGREEMENT for the abatement of weeds to provide for the COUNTY to fully recover its service costs in administering the CITY’s weed abatement program and to make other clarifying changes.

NOW, THEREFORE, in consideration of their mutual promises, covenants, and agreements set forth in this AGREEMENT, the PARTIES hereby agree as follows:

SECTION 1. PURPOSE.

The purpose of this AGREEMENT is to promote efficiency and economy of operations and resources in the abatement of weeds in the CITY and COUNTY. To achieve this end, the CITY hereby delegates to the COUNTY and the COUNTY hereby accepts the responsibility of abating weeds on properties in the CITY and administering the CITY’s weed abatement program, set forth in Chapter 8.15 of the Santa 2 Clara City Code (“PROGRAM”), subject to and in accordance with this AGREEMENT.

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SECTION 2. TERM.

This AGREEMENT shall become effective as of the EFFECTIVE DATE and shall continue until the governing body of the CITY or the COUNTY exercises the right to terminate this AGREEMENT pursuant to SECTION 18 of this AGREEMENT. This AGREEMENT supersedes and replaces the previous “Agreement for the Abatement of Weeds by County of Santa Clara for City of Santa Clara” and any and all subsequent amendments thereto.

SECTION 3. SCOPE OF SERVICES; PERFORMANCE SCHEDULE.

A. The COUNTY shall perform weed abatement services on properties located in the CITY and administer the PROGRAM (collectively, the “SERVICES”) in accordance with all applicable laws, rules, and regulations, including Chapter 8.15 of the Santa Clara City Code, and the provisions of this AGREEMENT, as they may be amended from time to time.

B. The COUNTY shall perform these SERVICES in accordance with the schedule set forth in EXHIBIT “A,” entitled SCHEDULE OF PERFORMANCE,” attached hereto and incorporated herein by this reference, except that SERVICES on properties owned by the CITY shall be performed only upon written request by the CITY.

C. The COUNTY shall attend all meetings of the CITY Council or meetings of other CITY committees, boards or hearing bodies at which weed abatement SERVICES, refunds of weed abatement charges, or other issues related to the SERVICES or this AGREEMENT are discussed, when the COUNTY’s attendance is requested by the CITY.

D. Upon request by the CITY, the COUNTY shall provide to the CITY for its review and comment the COUNTY’s specifications and qualifications for contractors or other agents of the COUNTY obtained or hired by the COUNTY to perform weed abatement SERVICES on behalf of the COUNTY on properties located in the CITY.

SECTION 4. NOTICES.

The COUNTY shall prepare copies of all notices required in connection with the SERVICES and cause such notices to be posted, published, mailed, and/or distributed as required by applicable law. The COUNTY shall provide copies of such notices to the CITY for prior review and approval as set forth on EXHIBIT A, entitled “SCHEDULE OF PERFORMANCE,” or where not provided for in the SCHEDULE OF PERFORMANCE, at least thirty (30) days prior to the date that the COUNTY desires or is required to post, publish, mail, or otherwise distribute the material.

SECTION 5. HEARINGS.

The CITY Council, or the committee, board, or other hearing body designated by the CITY Council to conduct hearings in connection with the PROGRAM, retains the responsibility to conduct public hearings and adopt appropriate resolutions and orders in accordance with Chapter 8.15 of the Santa Clara City Code and this AGREEMENT, including its EXHIBIT A, “SCHEDULE OF PERFORMANCE.

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SECTION 6. STATEMENT OF COSTS.

A. In December of each calendar year, the COUNTY shall deliver to the CITY a schedule of all reasonable and necessary fees and costs approved and adopted by the COUNTY Board of Supervisors for administrative, enforcement, and abatement services to be provided under this AGREEMENT (“FEE SCHEDULE”). Such fees and costs shall not exceed the reasonable costs of providing such services. All fees and costs in said FEE SCHEDULE shall be recoverable by the COUNTY pursuant to this SECTION and SECTION 7 of this AGREEMENT unless within sixty (60) days of the COUNTY’s delivery of said schedule to the CITY, the City Council of the CITY expressly declines to accept any fee or cost in said FEE SCHEDULE. In the event the City Council does decline to accept any fee or cost in said FEE SCHEDULE, the COUNTY shall be relieved of any and all obligations to provide any SERVICES under this AGREEMENT for the weed abatement season associated with the disapproved fee or cost.

B. At least ten (10) days prior to the date of the public hearing before the CITY regarding the placement of special assessment liens on properties for weed abatement charges, which meeting usually occurs before August 10 of each year, the COUNTY shall render to the CITY a report of weed abatement SERVICES performed by the COUNTY on properties within the CITY during the preceding twelve (12) months (“REPORT”). The REPORT shall include, without limitation, all of the following information:

1. The total number of weed abatements performed in the CITY;

2. The total number of properties upon which weed abatements were performed in the CITY;

3. A statement of all the costs and expenses incurred by or on behalf of the COUNTY for weed abatement SERVICES performed on properties located in the CITY, itemized with the aggregate administrative, enforcement, and abatement expenses and costs incurred by the COUNTY on each property, which shall be in accord with the fees and costs in the FEE SCHEDULE submitted by the COUNTY to the CITY pursuant to Section 6.A of this AGREEMENT;

4. A description of all the properties in the CITY, by address and Assessor’s Parcel Number, on which weed abatement SERVICES were performed; and

5. Verification of the truthfulness, accuracy, and completeness of the REPORT, executed by the COUNTY employee charged with the supervision of the SERVICES.

SECTION 7. PAYMENT FOR SERVICES.

A. Except as provided in SECTIONS 7.B and 7.C, the COUNTY shall be reimbursed for SERVICES provided under this AGREEMENT by remittances from property owners for weed abatement and related costs and expenses for SERVICES performed on their respective lots and parcels of land. The CITY, after hearing, shall require the costs and expenses of SERVICES performed for the current year to be entered as a special assessment on bills for taxes levied against the respective lots and 4 parcels of land. Such special assessments shall be liens on the respective properties until paid to the COUNTY.

B. Within 60 days of receipt of an invoice for costs and expenses incurred on CITY-owned parcels, the CITY shall reimburse the COUNTY for the costs of such SERVICES. Charges for SERVICES on parcels owned by the CITY shall equal the cost of SERVICES performed by the weed abatement contractor on the CITY-owned parcels plus 20% of said contractor service costs.

C. If the amounts submitted for collection from property owners in Santa Clara County for provision of weed abatement services by the COUNTY are inadequate to reimburse the COUNTY for its fixed costs of administering countywide services during the preceding twelve (12) months, the COUNTY may make a demand to the CITY for its proportional share of the shortfall (less amounts offset by accrued program revenues) by September 1 of each year. The CITY agrees to pay the COUNTY for the CITY’s proportional share of any such shortfall within sixty (60) days of demand by the COUNTY. The CITY’S proportional share shall be calculated based on the percentage of parcels on which weed abatement services were performed which are located in the CITY. The COUNTY’s demand for payment under this SECTION 7.C. shall be accompanied by a statement of the total shortfall in the COUNTY’s reimbursement for fixed program costs for the preceding twelve (12) months and of any accrued program revenues available to offset the shortfall, as well as a statement of the CITY’s proportional share of that shortfall (minus offsets by accrued program revenues).

D. Except as provided in SECTIONS 7.B and 7.C., the CITY has and assumes no liability for the payment of salary, wages, benefits, compensation or any other amounts to officers, agents, employees or contractors of COUNTY performing SERVICES hereunder.

SECTION 8. INDEMNIFICATION.

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

SECTION 9. RECORDS.

Each officer or department of the COUNTY performing any SERVICES pursuant to this AGREEMENT shall keep itemized and detailed work or job records covering the costs of services performed under this AGREEMENT. COUNTY shall maintain these records for a minimum period of three (3) years, or for any longer period required by law, following the performance of any SERVICES.

5 SECTION 10. ENTIRE AGREEMENT.

This AGREEMENT and its Appendices (if any) constitutes the final, complete and exclusive statement of the terms of the agreement between the PARTIES. It incorporates and supersedes all the agreements, covenants and understandings between the PARTIES concerning the subject matter hereof, and all such agreements, covenants and understandings have been merged into this AGREEMENT. No prior or contemporaneous agreement or understanding, verbal or otherwise, of the PARTIES or their agents shall be valid or enforceable unless embodied in this AGREEMENT.

SECTION 11. AMENDMENTS.

This AGREEMENT may only be amended by a written instrument signed by the PARTIES.

SECTION 12. GOVERNING LAW, VENUE.

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

SECTION 13. ASSIGNMENT.

No assignment of this AGREEMENT or of the rights and obligations hereunder shall be valid without the prior written consent of the other PARTY.

SECTION 14. WAIVER.

No delay or failure to require performance of any provision of this AGREEMENT shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a PARTY shall be in writing and shall apply to the specific instance expressly stated.

SECTION 15. COMPLIANCE WITH LAWS.

COUNTY and CITY shall comply with all applicable Federal, State, and local laws, regulations, rules, and policies in the performance of services under this AGREEMENT.

SECTION 16. THIRD PARTY BENEFICIARIES.

This AGREEMENT does not, and is not intended to, confer any rights or remedies upon any person or entity other than the PARTIES.

SECTION 17. INDEPENDENT CONTRACTORS.

The COUNTY and the CITY agree that this AGREEMENT is by and between independent contractors.

This AGREEMENT is not intended, nor shall it be construed, to create a relationship of agent, servant, employee, partnership, joint venture, or association between the COUNTY and the CITY.

SECTION 18. TERMINATION
6 A. The COUNTY or the CITY may terminate this AGREEMENT as of the first day of September of any year by giving notice to the other PARTY not less than thirty (30) days prior to the date of termination.

B. The [City Manager], or his or her delegatee or designee, is authorized to terminate this AGREEMENT on behalf of the CITY.

C. The COUNTY’s Agricultural Commissioner, or his or her delegatee or designee, is authorized to terminate this AGREEMENT on behalf of the COUNTY.

SECTION 19. NOTICES

Except as otherwise stated, any notice required or permitted by this AGREEMENT will be in writing and delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of delivery; (c) by email, telecopy, or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, upon confirmation of delivery. The PARTIES may deliver notice as follows:

TO COUNTY:

County of Santa Clara Consumer and Environmental Protection Agency 1553 Berger Drive #200, San Jose, CA 95112
Fax: 408-286-2460
Email: [email protected]
Attn: Weed Abatement Manager

TO CITY:

City of Santa Clara, Community Risk Reduction Division
1500 Warburton Ave.

Santa Clara, CA 95050
Email: [email protected]
Attn: Weed Abatement

SECTION 20. INTERPRETATION.

The captions preceding the sections of this AGREEMENT have been inserted for convenience of reference only and such captions shall in no way define or limit the scope or intent of any provision of this AGREEMENT. This Agreement has been negotiated at arm’s length and between parties sophisticated and knowledgeable in the matters contained herein. This AGREEMENT shall be interpreted to achieve the intents and purposes of the PARTIES, without any presumption against the PARTY responsible for drafting any part of this AGREEMENT. Provisions in this AGREEMENT relating to number of days shall be calendar days, unless otherwise specified, provided that if the last day of any period to give notice, reply to a notice or to undertake any other action occurs on a Saturday, Sunday or a bank or COUNTY holiday, then the last day for undertaking the action or giving or replying to the notice shall be the next succeeding business day. The Recitals are incorporated and made a part of this AGREEMENT.

SECTION 21. COUNTERPARTS.

This AGREEMENT may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. -
-
7 //

SECTION 22. 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.

THE PARTIES TO THIS AGREEMENT hereby indicate their acknowledgement and acceptance of the terms and conditions stated herein as evidenced by the following signatures of their duly authorized representatives.

COUNTY OF SANTA CLARA CITY OF SANTA CLARA

Jeffrey V. Smith
County Executive
Dated: _______________________________

Title: _______________________________
Dated: ______________________________

APPROVED AS TO FORM AND LEGALITY:

Willie Nguyen
Deputy County Counsel

8 EXHIBIT “A”

SCHEDULE OF PERFORMANCE

The COUNTY shall perform the SERVICES as follows:

On or before November 15 of each year: The County shall request a resolution from the CITY declaring that certain weeds located on
properties in the CITY constitute a public nuisance
and setting a date for a public hearing.

Before the date of the CITY governing body
meeting declaring weeds a nuisance subject to
abatement:

The COUNTY shall provide to the CITY for
review and processing by the CITY a complete
Master List of properties, including Assessor’s
Parcel Numbers, located in the CITY upon which
hazardous weeds are growing or are likely to grow.

No later than ten (10) days prior to the day of the
CITY hearing on objections to the notices to
destroy weeds:

The COUNTY shall post notices to destroy weeds
at property or mail notices to destroy weeds to
property owners regarding the CITY hearing, as
directed by resolution of the CITY Council.

No later than ten (10) days prior to the day of the
CITY hearing on objections to the notices to
destroy weeds:

The COUNTY shall deliver to the CITY a FEE
SCHEDULE listing all reasonable and necessary
fees and costs approved and adopted by the
COUNTY Board of Supervisors for administrative,
enforcement, and abatement services to be
provided under this AGREEMENT in accordance
with SECTION 6.A of this AGREEMENT.

The CITY Council shall hold a public hearing to
hear objections to the notices to destroy weeds.

By resolution at the conclusion of the hearing, the
CITY Council shall allow or overrule any or all
objections to the proposed abatement of weeds.

After adoption of CITY resolution ordering the
abatement of weeds on certain properties as
public nuisances:

The CITY shall proceed with weed abatement
work on properties located in the CITY in
accordance with the resolution adopted by the
CITY Council and this AGREEMENT.

At least ten (10) days prior to the date of the
public hearing before the CITY’s governing
body regarding the placement of special
assessment liens on properties for weed
abatement charges:

Pursuant to SECTION 6.B of this AGREEMENT,
the COUNTY shall provide to the CITY for review
and processing a complete and accurate REPORT
of costs and expenses incurred by or on behalf of
the COUNTY for weed abatement SERVICES
performed in the CITY during the preceding twelve
(12) months under this AGREEMENT.
9 On or before August 10 of each year:

The COUNTY shall obtain a resolution from the
CITY to confirm the REPORT and order the weed
abatement costs to be a special assessment against
the affected properties.

At least ten (10) days prior to the CITY meeting
to hear objections to the REPORT:

The CITY shall mail a notice to all property
owners identified in the REPORT, which provides
the date, time, and place of the CITY Council’s
hearing on the REPORT at which person may
appear and object to the REPORT.

Upon adoption of resolution by the CITY
Council confirming or amending REPORT and
ordering weed abatement costs become a special
assessment lien against the affected properties
and filing of REPORT with COUNTY Auditor:

The COUNTY shall enter each such assessment on
the COUNTY tax roll and cause such amounts to
be collected at the same time, and in the same
manner, as general CITY taxes are collected.

Upon request by CITY The COUNTY shall perform weed abatement SERVICES on CITY-owned lots and parcels.

City of Santa Clara
Notice to Destroy Weeds

NOTICE IS HEREBY GIVEN that on January 11, 20 22, pursuant to the provisions of §

8.15.010 et seq. of the Code of the City of Santa Clara, California, the City Council passed a resolution declaring that all weeds growing upon any private property or in any public street or alley, as defined in § 8.15.010 of the Code of the City of Santa Clara, constitute a public nuisance; this nuisance must be abated by the removal of the weeds.

NOTICE IS FURTHER GIVEN that prop erty owners shall, without delay, remove all weeds from their property and the abutting half of the street in front and alleys, if any, behind the property and between the lot lines as extended, or the weeds will be destroyed or removed and the nuisance abated by the County authorities, in which case the cost of the destruction or removal will be assessed upon the lots and lands from which or from the front or rear of which, the weeds have been destroyed or removed, and the cost will constitute a lien upon the lots or lands until paid, and will be collected upon the next tax roll upon which general municipal taxes are collected.

All property owners wanting to provide input regarding the proposed destruction or removal of the weeds are hereby notified to attend a meeting, either in person or remotely, of the City Council of the City of Santa Clara to be held in the Council Chambers of the City Hall, 1500 Warburton Avenue, Santa Clara, California, on February 8, 2022, at 6:00 p.m., to have their comments heard by the City Council. The link for remote attendance can be found on the City of Santa Clara website.

AMERICANS WITH DISABILITIES ACT (ADA). The City complies with the Americans with Disabilities Act (ADA). If you need additional information or assistance, please contact the City’s ADA Coordinator at (408) 615-3000.

City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-1775 Agenda Date: 1/11/2022

REPORT TO COUNCIL

SUBJECT
Action on a Resolution Extending AB 361 Implementation to Allow City Legislative Bodies to Hold Public Meetings Solely by Teleconference or Otherwise Electronically During the Governor’s Proclaimed COVID State of Emergency

COUNCIL PILLAR
Enhance Community Engagement and Transparency

BACKGROUND
On March 17, 2020, Governor Gavin Newsom issued Executive Order N-29-20 which suspended the Brown Act teleconferencing requirements so that legislative bodies could hold public meetings solely by teleconference, or otherwise electronically, without listing the teleconference locations and without any physical location, as long legislative bodies followed a set of requirements for noticing the meeting agenda and public participation, among other things. Subsequently on June 11, 2021, Governor Newsom issued Executive Order N-08-21, which sunset the Brown Act provisions of Executive Order N-29-20 on September 30, 2021.

On September 16, Governor Newsom signed AB 361 into law which allows local agencies to use teleconferencing without complying with specific Brown Act restrictions in certain state emergencies until January 1, 2024, at which point they are to be repealed, and the standard Brown Act teleconference requirements become effective again. The bill was an urgency measure, and it went into effect immediately.

On October 19, 2021, November 16, 2021, and December 14, 2021 the City Council approved Resolutions Nos. 21-9013, 21-9023, and 21-9038, respectively, to allow City Legislative bodies to hold public meetings solely by teleconference or otherwise electronically pursuant to AB 361.

DISCUSSION
AB 361 amended Government Code Section 54943 to allow a local agency to use teleconferencing for public meetings without requiring the teleconference location to be accessible to the public or a quorum of the members of the legislative body of the agency to participate from locations within the boundaries of the agency’s jurisdiction during a Governor-proclaimed state of emergency in certain circumstances.

In order for a local agency to utilize AB 361’s exemption to the Brown Act, there must be certain emergency conditions present. These include:
· There being a state-proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.

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· The Council is meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, that meeting in person would present imminent risks to the health and safety of attendees; or
· The Council is meeting during a proclaimed state of emergency and has determined, by majority vote, that in-person meetings would pose health and safety risks to attendees.

In order for the City’s legislative bodies to continue meeting remotely with the exemptions to the Brown Act provided for under AB 361, the Council is required to take certain actions, most of which the City is already implementing:
· The City must continue providing notice of meetings and continue to post agendas as the Brown Act requires to the agency’s website,
· The City must continue allowing for public access to the meeting, while allowing for a public comment period to directly address the legislative body pursuant to Brown Act’s other teleconferencing provisions,
· The City must continue giving notice for how the public can access the meeting and provide public comment, including a call-in or internet-based service option (no physical location required),
· The City must continue providing the public with the opportunity to comment in real time (with the option of additionally allowing comments to be submitted in advance, if the agency desires),
· The City must stop the meeting until public access is restored in the event of a service disruption, and
· No later than 30 days after the first teleconferencing meeting and every 30 days thereafter, the Council will have to reconsider the circumstances of the state of emergency to determine if remote meeting procedures need to remain in place.

The legislative body must make certain findings by majority vote every 30 days to continue using the AB 361 Brown Act teleconferencing requirements. Because the City Council approved Resolution No. 9038 on December 14, 2021, the next Council meeting to extend the resolution is January 11, 2022.

Failure to approve this extension would result in City Council, boards, and commissions meeting being unable to meet fully virtual without exposing the locations of each member’s location on the posted agendas.

Beginning on March 11, 2020 and continuing every 60 days thereafter, the City Council has continued its proclamation of local emergency based on substantial evidence that the public interest and necessity require the continuance of the proclamation of local emergency related to COVID-19.

On September 21, 2021, the Santa Clara County Public Health Officer recommended that public bodies continue to meet remotely to the extent possible due to the continued threat of COVID-19 to the community, the unique characteristics of public governmental meetings, and the continued increased safety protection that social distancing provides as one means by which to reduce the risk of COVID-19 transmission. On November 2, 2021, emergency use of the Pfizer COVID vaccine was authorized for children ages 5-11. On that same day, Santa Clara county moved back into the substantial (orange) COVID-19 transmission tier. On November 22, 2021, Santa Clara county moved to the moderate (yellow) COVID-19 transmission tier. On November 25, 2021, scientists identified the latest COVID-19 variant, Omicron, which has prompted concern among scientists and public health officials because of an unusually high number of mutations that have the potential to make the virus more transmissible and less susceptible to existing vaccines. On December 13, 2021, the City of Santa Clara Printed on 1/6/2022Page 2 of 4
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22-1775 Agenda Date: 1/11/2022
California Department of Public Health reinstituted its statewide mask mandate, requiring all individuals, regardless of their vaccination status, to wear face coverings in indoor public settings from December 15, 2021 through January 15, 2022 due to a 47% increase in the statewide seven- day average case rate and 14% increase in hospitalizations since Thanksgiving . In light of the rapid
surge in cases due to the Omicron variant, on December 28, 2021, the County of Santa Clara Health Officer issued a health order requiring up-to-date COVID-19 vaccination for workers in certain higher- risk settings. The new order builds on recent changes in the State Health Officer’s vaccination requirements by mandating up-to-date vaccination by workers in certain healthcare and long-term care settings. These associated emergency conditions are on-going and there is a need to continue teleconferencing for public meetings without posting the teleconferencing locations on the agenda and without requiring the teleconference locations to be accessible to the public during the current Governor-proclaimed COVID-19 state of emergency. The state of emergency continues to directly impact the ability of the City’s legislative bodies to meet safely in person, and City officials continue to impose or recommend public health safety measures.

It is recommended that the Council adopt a resolution to make requisite findings to allow the City’s legislative bodies to continue to hold public meetings solely by teleconference or otherwise electronically so long as the state of emergency and social distancing measures continue. The Council will have to take action on a monthly basis to reassess and reaffirm such findings to continue meeting remotely.

The proposed Resolution is attached.

FISCAL IMPACT
There is no fiscal impact other than administrative time and expense.

COORDINATION
This report has been coordinated with the City Attorney’s Office and City Clerk’s Office.

RECOMMENDATION
Adopt a Resolution finding the continued existence of the need to extend AB 361 implementation to allow the City’s legislative bodies to hold public meetings solely by teleconference or otherwise electronically pursuant to AB 361.

Reviewed by: Nadine Nader, Assistant City Manager
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22-1775 Agenda Date: 1/11/2022
Approved by: Deanna J. Santana, City Manager

ATTACHMENTS

1. Resolution
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Resolution/Allowing City Legislative Bodies to Hold Teleconference Public Meetings Pursuant to AB 361 Page 1 of 5 Rev: 11/22/17

RESOLUTION NO. _

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA

FINDING THE CONTINUED EXISTENCE OF THE NEED TO
EXTEND AB 361 IMPLEMENTATION TO ALLOW CITY

LEGISLATIVE BODIES TO HOLD PUBLIC MEETINGS SOLELY

BY TELECONFERENCE OR OTHERWISE ELECTRONICALLY
PURSUANT TO AB 361

BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

WHEREAS, the City of Santa Clara is committed to preserving and nurturing public access and participation in meetings of the City’s City Council, Council Committees, City Decision-Making Bodies (including Santa Clara Stadium Authority Board, Sports and Open Space Authority, Housing Authority, Successor Agency to the City of Santa Clara Redevelopment Agency, Bayshore North Project Enhancement Authority, and Public Facilities Financing Corporation), City Boards, Committees and Commissions, Taskforces, and Other City Advisory Entities; WHEREAS, all meetings of City of Santa Clara’s legislative bodies are open and public, as required by the Ralph M. Brown Act (California Government Code Sections 54950, et seq., hereinafter referred to as the “Brown Act”), so that any member of the public may attend, participate, and watch the City’s legislative bodies conduct their business; WHEREAS, the Brown Act allows a local legislative body to hold public meetings by teleconference and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and to address the local legislative body, as long as the following requirements are met: (1) each teleconference location from which a member is participating is noticed on the agenda; (2) each teleconference location is accessible to the public; (3) members of the public must be able to address the body at each teleconference location; (4) at least one member of the legislative body must be physically present at the location specified in the meeting agenda; and (5) during teleconference meetings, at least a quorum of the members of the local body must participate from locations within the local body’s territorial jurisdiction;
WHEREAS, on March 17, 2020, Governor Gavin Newsom issued Executive Order N-29-20 ----
Resolution/Allowing City Legislative Bodies to Hold Teleconference Public Meetings Pursuant to AB 361 Page 2 of 5 Rev: 11/22/17

which suspended the Brown Act teleconferencing requirements so that legislative bodies can hold public meetings solely by teleconference, or otherwise electronically, without listing the teleconference locations and without any physical location, as long as the agenda that is posted 72 hours in advance indicates that the members of the legislative body will be participating by teleconference, provides the teleconference or webinar access information by which the public may participate electronically, and lists the procedure for individuals with disabilities to request reasonable accommodations;
WHEREAS, on June 11, 2021, Governor Newsom issued Executive Order N-08-21, which sunsets the Brown Act provisions of Executive Order N-29-20 on September 30, 2021; WHEREAS, on September 16, 2021, Governor Newsom signed urgency ordinance AB 361 which allows a local agency to use teleconferencing for public meetings without posting the teleconferencing locations on the agenda and without requiring the teleconference locations to be accessible to the public during a Governor-proclaimed state of emergency pursuant to California Government Code Section 8625 et seq, if the state of emergency continues to directly impact the ability of the members of its legislative bodies to meet safely in person or state or local officials continue to impose or recommend measures to promote social distancing; WHEREAS, in light of the continued state of emergency related to COVID-19, the Santa Clara County Public Health Officer continues to recommend that public bodies meet remotely to the extent possible, specifically including use of newly enacted AB 361 to maintain remote meetings under the Ralph M. Brown Act and similar laws, as outlined in their “Recommendation Regarding Continued Remote Public Meetings of Governmental Entities” issued on September 21, 2021;
WHEREAS, on October 19, 2021 and November 16, 2021, the City Council adopted Resolution Nos. 9013 and 9023, respectively, to allow City legislative bodies to hold public meetings solely by teleconference or otherwise electronically pursuant to AB361; and WHEREAS, on November 2, 2021, federal, state and local health officials authorized Resolution/Allowing City Legislative Bodies to Hold Teleconference Public Meetings Pursuant to AB 361 Page 3 of 5 Rev: 11/22/17

emergency use of the Pfizer COVID vaccine for children ages 5-11, and may consider emergency authorization of the COVID vaccine for children under age 5 within the next few months; and
WHEREAS, on November 22, 2021, Santa Clara County moved into the moderate (orange) COVID-19 transmission tier; and
WHEREAS, on November 25, 2021, scientists identified the latest COVID-19 variant, Omicron, which has prompted concern among scientists and public health officials because of an unusually high number of mutations that have the potential to make the virus more transmissible and less susceptible to existing vaccines; and WHEREAS, on November 2, 2021, Santa Clara County moved back into the substantial (orange) COVID-19 transmission tier; and
WHEREAS, Government Code Section 54953(e)(3) requires that the City Council review the need and make findings for continuing the teleconferencing without complying with the agenda posting and public comment requirements at least once every thirty (30) days until Governor terminates the state of emergency; and,
WHEREAS, the associated emergency conditions are on-going and there is a need to continue teleconferencing for public meetings without posting the teleconferencing locations on the agenda and without requiring the teleconference locations to be accessible to the public during the current Governor-proclaimed COVID-19 state of emergency and if approved, will be in effect for 30 days and will expire on January 13, 2022 unless staff returns to City Council on or before January 11, 2022 to request to continue the need for teleconferencing.

NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

1. That the City Council hereby finds that the state of emergency conditions related to COVID-19, as set forth in Resolution No. 9023 adopted on November 16, 2021 and incorporated herein by reference, are on-going.

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2. That the City Council finds that there is a need to continue teleconferencing for public meetings without posting the teleconferencing locations on the agenda and without requiring the teleconference locations to be accessible to the public during the current Governor-proclaimed COVID-19 state of emergency.

3. That the City Council finds that the state of emergency continues to directly impact the ability of members of the City’s City Council, Council Committees, City Decision-Making Bodies (including Santa Clara Stadium Authority, Sports and Open Space Authority, Housing Authority, Successor Agency to the City of Santa Clara Redevelopment Agency, Bayshore North Project Enhancement Authority, and Public Facilities Financing Corporation), City Boards, Committees and Commissions, Taskforces, and Other City Advisory Entities to meet safely in person.

4. That City officials continue to impose or recommend measures to promote social distancing in City facilities.

5. That members of the City Council, Council Committees, City Decision-Making Bodies, City Boards (including Santa Clara Stadium Authority Board, Sports and Open Space Authority, Housing Authority, Successor Agency to the City of Santa Clara Redevelopment Agency, Bayshore North Project Enhancement Authority, and Public Facilities Financing Corporation), Committees and Commissions, Taskforces, and Other City Advisory Entities are authorized to use teleconferencing, or other electronic means, to hold its public meetings without noticing the teleconferenced locations on the agenda, without making teleconferenced or physical locations accessible to the public, without posting agendas at teleconferenced locations, without requiring members of the legislative bodies to be physically present at the meeting, and without requiring a quorum of the members of the legislative body to participate from locations with the City’s jurisdiction, as long as the agenda that is posted at least 72 hours in advance indicates that members of the legislative body may be participating electronically, provides the teleconference or webinar access information by which the public may participate electronically, and lists the procedure for individuals with disabilities to request reasonable accommodations, in compliance Resolution/Allowing City Legislative Bodies to Hold Teleconference Public Meetings Pursuant to AB 361 Page 5 of 5 Rev: 11/22/17

with AB 361, Government Code Section 54953(e).

6. That the Assistant City Clerk is hereby directed to report to the City Council within thirty

(30) days on the need to further continue teleconferencing for public meetings without posting the teleconferencing locations on the agenda and without requiring the teleconference locations to be accessible to the public during the current Governor-proclaimed COVID-19 state of emergency.

7. Effective Date. This resolution shall become effective immediately.

I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED

AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA, AT A REGULAR MEETING THEREOF HELD ON THE __ DAY OF _________ , 2022, BY THE FOLLOWING VOTE:

AYES: COUNCILORS:

NOES: COUNCILORS:

ABSENT: COUNCILORS:

ABSTAINED: COUNCILORS:

ATTEST:

NORA PIMENTEL, MMC

ASSISTANT CITY CLERK

CITY OF SANTA CLARA

Attachments incorporated by reference: None
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-44 Agenda Date: 1/11/2022

REPORT TO COUNCIL

SUBJECT
Action to Waive Second Reading and Adopt Ordinance No. 2038 for the Regulation of Shared Mobility Devices (Bicycles and Motorized Scooters)

COUNCIL PILLAR
Promote and Enhance Economic, Housing, and Transportation Development, Enhance Community Engagement and Transparency

BACKGROUND
At the December 7, 2021 Council meeting, proposed Ordinance No. 2038 was introduced and passed for the purpose of publication. Pursuant to City Charter Sections 808 and 812, proposed Ordinance No. 2038 was published on January 5, 2022, and copies were posted in three public places. The Ordinance now comes to Council for final adoption.

DISCUSSION
The proposed Ordinance establishes a permit program and regulations for operating fleets of motorized scooters, electric bicycles, bicycles, or other personal transportation devices within city limits.

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15378(b)(5) in that it is governmental organization or administrative activity that will not result in direct or indirect changes in the environment. Actions such as installation of bicycle racks or any other physical infrastructure for shared mobility devices will be analyzed as part of the development review or encroachment permit processes but are expected to be a categorical exemption pursuant to CEQA section 15301(c):

Existing Facilities.

FISCAL IMPACT
The cost to administer and manage the Permit Program is designed to be revenue neutral with 100 percent cost recovery through collected permit and impound fees. The annual estimated revenue assumes three Operators apply and receive permits to operate 1,000 shared mobility devices citywide. The application fee is projected to generate revenue of $10,410 in FY 2021/22 to offset City costs. The annual permit fee is projected to generate revenue of approximately $140,000 in FY 2022/23 as the permit will be effective from July 1, 2022 through June 30, 2023. This revenue estimate assumes 1,000 devices are deployed in the first year. While the proposed Permit Program allows a maximum of 3,000 shared mobility devices citywide, staff assumes that operators will deploy devices in a phased manner. At the maximum of 3,000 devices, the total cost to be recovered for the program, including the permit and application fee, is $291,000, or approximately $97,000 per City of Santa Clara Printed on 1/6/2022Page 1 of 2
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22-44 Agenda Date: 1/11/2022
Operator.

The adopted Fiscal Year 2021/22 operating budget for the existing Public Works Traffic Division staffing level will be used to process the applications in FY 2021/22 and to support any Permit Program work this fiscal year. A budget amendment to recognize the permit application fees may be brought forward later in the fiscal year based on actual receipts. The new Permit Program, effective July 1, 2022, is anticipated to require up to 1,100 hours of combined time from the existing staff in the Traffic Division. The revenues and associated costs for this Permit Program will be factored into the FY 2022/23 General Fund Operating Budget. Staff will be temporarily absorbing the additional work effort during the first year by reprioritizing projects and assignments. This will be monitored and depending on the success of the program, it is anticipated that additional staffing of 0.5 - 1.0 FTE’s may be necessary to support it. Staff will return to Council as necessary for any additional positions required for the Permit Program.

COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office. Staff also notified stakeholders (i.e. businesses, Valley Transportation Authority, Santa Clara University, etc.) of staff’s proposed updates to the Permit Program and posted the Administrative Regulations on the City’s website on October 20, 2021. In addition, at the October 25, 2021 BPAC meeting, staff provided the BPAC with an update on the City’s proposed Permit Program and the Administrative Regulations.

PUBLIC CONTACT
A summary of proposed Ordinance No. 2038 was published to the Santa Clara Weekly on January 5, 2022 and copies were posted in three public places and made available for public inspection at the City Clerk’s Office.

Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected].

RECOMMENDATION
Waive Second Reading and Adopt Ordinance No. 2038 establishing Chapter 10.35 of the Santa Clara Municipal Code instituting Shared Mobility Regulations.

Reviewed by: Caio Arellano, Assistant City Attorney
Approved by: Deanna J. Santana, City Manager

ATTACHMENTS

1. Ordinance No. 2038 (Introduction)
City of Santa Clara Printed on 1/6/2022Page 2 of 2
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ORDINANCE NO. 2038

AN ORDINANCE OF THE CITY OF SANTA CLARA,
CALIFORNIA, ADDING A NEW CHAPTER 10.35 ("SHARED
MOBILITY DEVICES") TO TITLE 10 ("VEHICLES AND
TRAFFIC") OF "THE CODE OF THE CITY OF SANTA
CLARA, CALIFORNIA" TO REGULATE SHARED MOBILITY
DEVICES, AND REPEALING ORDINANCE NO. 1995
BE IT ORDAINED BY THE CITY OF SANTA CLARA AS FOLLOWS:

WHEREAS, consistent with the City's goals of enhancing mobility, easing traffic congestion, and promoting sustainability, this Chapter creates a permit program to facilitate shared mobility devices offered for public use;
WHEREAS, this permit program is needed to ensure the protection of public health and safety, including the safety of the public traveling by foot, bicycle, or vehicle on public sidewalks, streets, and other public rights-of-way;
WHEREAS, on December 20, 2019, Ordinance No. 1995 established a temporary moratorium on motorized scooter and bike share programs and expired on December 19, 2020; and,
WHEREAS, this Ordinance would repeal Ordinance No. 1995 as a moratorium on shared mobility programs will no longer be needed due to the creation of the shared mobility permit program and regulations.

NOW THEREFORE, BE IT FURTHER ORDAINED BY THE CITY OF SANTA CLARA AS FOLLOWS:

SECTION 1: Ordinance No. 1995, which established a temporary moratorium on motorized scooter and bike share programs, is hereby repealed and shall have no legal effect as of the Effective date of this Ordinance.

II
Ordinance/Shared Mobility Device Regulation
Rev: 09/2019

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City Council and Authorities ConcurrentJanuary 11, 2022

City Council and Authorities Concurrent
January 11, 2022